Never a dull moment. Recently, in the case of Marquita McDonald v. Symphony Bronzeville, LLC et. al., the Illinois Appellate Court was called upon to determine whether the exclusivity provisions of the Illinois Workers’ Compensation Act bar a claim for statutory damages under the Illinois Biometric Information Privacy Act where an employer is alleged to have violated an employee’s statutory privacy rights. How did such a question come about in the first place?

WHAT HAPPENED?

In August of 2017, Marquita McDonald filed a class action lawsuit against defendant Symphony Bronzeville Park, LLC and Symphony Healthcare, LLC. McDonald alleged that as an employee, she was required to provide biometric information by scanning her fingerprint for the purpose of utilizing a fingerprint-based time clock system implemented by the defendants, as were other members of a proposed class of defendants’ employees. In each count of the complaint filed by McDonald, she alleged that as a result of defendant’s wrongful conduct, she had suffered and continued to suffer “mental anguish and mental injury” in that she “experiences mental anguish when thinking about what would happen to her biometric identifiers or information if Defendants’ went bankrupt, whether Defendant will ever delete her biometric identifiers or information, and whether Defendants shared her biometric identifiers or information.” The complaint also sought damages for the injuries resulting from Defendants’ negligence in an amount to be determined at trial.

THE MOTION TO DISMISS

Defendants filed motions to dismiss the class action complaint. Among the arguments raised by defendants was an assertion that any claims made by McDonald on her own behalf or on behalf of any of defendants’ other employees would be barred by the exclusivity provisions of the Workers’ Compensation Act. In response, McDonald was granted leave to amend the complaint. In the amended complaint, they removed any allegation that McDonald suffered mental anguish as a result of the alleged Privacy Act violations. The amended complaint also specifically sought recovery of liquidated damages under the Privacy Act, and did not allege actual damages.

THE CIRCUIT COURT

The circuit court denied the motion to dismiss and rejected Defendants assertions that the Workers’ Compensation Act preempted any claims by an employee against an employer under the Privacy Act. In a written order dated October 29, 2019, the circuit court certified the following question for interlocutory appeal:

“Do the exclusivity provisions of the Workers’ Compensation Act bar a claim for statutory damages under the Privacy Act where an employer is alleged to have violated an employee’s statutory privacy rights under the Privacy Act?”

THE APPELLATE COURT’S ANSWER TO THE CERTIFIED QUESTION

The Appellate Court concluded that the exclusivity provisions of the Workers’ Compensation Act do not bar a claim for statutory (liquidated) damages,  where an employer is alleged to have violated an employee’s statutory privacy rights under the Privacy Act, as such a claim is simply not compensable under the Workers’ Compensation Act. This is in keeping with the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp., where the Supreme Court held that a violation of the Privacy Act, in itself, is sufficient to support an individual’s statutory cause of action. This means that there is no need to plead that the Plaintiff suffered “mental anguish and mental injury” in order to support a cause of action.

The Appellate Court made clear that in the case of McDonald, they were addressing solely the question of statutory damages and not actual damages.

THE WORKERS’ COMPENSATION ACT AS AN EXCLUSIVE REMEDY

The Workers’ Compensation Act specifically states that “no common law or statutory right to recover damages from the employer is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.” 820 ILCS 305/ 5(a).

The Illinois Supreme Court has ruled that the Illinois Workers’ Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury.

An employee can escape the exclusivity provisions of the Illinois Workers’ Compensation Act if the employee establishes:

  1. The injury was not accidental;
  2. The injury did not arise from the employment;
  3. The injury was not received during the course of employment; or
  4. The injury was not compensable under the Illinois Workers’ Compensation Act.

In this case, the appellate court looked to the fourth exception to resolve the certified question, and relied on four cases to solve the riddle:

  1. Folta v. Ferro Engineering, 2015 IL 118070, ¶4
  2. Pathfinder, Co. v. Industrial Commission, 62 Ill.2d 556 (1976)
  3. Collier v. Wagner Castings, Co., 82 Ill.2d 229 (1980)
  4. Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (1990)

FOLTA V. FERRO ENGINEERING

The Plaintiff, James Folta, worked as a shipping clerk and product tester for Ferro Engineering from 1966 to 1970. Folta was exposed to asbestos in the course and scope of that employment. He was not diagnosed with mesothelioma until May of 2011. He brought a civil action against 15 defendants, including his employer, Ferro Engineering. During the course of litigation, Folta died and and his widow Ellen Folta was substituted individually and as a Special Administrator for the Estate. Ferro Engineering filed a motion to dismiss the complaint arguing that Folta’s claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act. Folta argued in response that his cause of action fell outside the exclusive remedy provisions because his claims were not compensable under the Acts. He also argued that since the symptoms of his injury did not manifest until more than 40 years after his last exposure to asbestos, and any potential asbestos claim was barred by the 25 year limitation periods in the Acts, his cause of action in circuit court was not barred.

The circuit court granted Ferro’s motion to dismiss. The appellate court reversed and remanded, reasoning that an injured employee may bring a common-law action against his employer where the injury is not compensable under the Act. The Supreme Court held that the General Assembly intended to provide an absolute definitive time period within which all occupational disease claims arising from asbestos exposure must be brought, and that Folta’s right to seek recovery under the Acts was  extinguished. The Supreme Court ruled that this did not allow Folta to bring a wrongful death action in circuit court against his employer, as the employer’s liability was governed exclusively by the provisions in the Workers’ Compensation Act and the Workers’ Occupational Diseases Act.

***NOTE*** 

On May 17, 2019, Governor J.B. Pritzker signed Senate Bill 1596 into law as Public Act 101-0006. This amended both the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Disease Act. Now, any worker that is injured or killed by an exposure that was limited to the 25-year statute of limitations can bring a civil action at law, including an action for wrongful death against the employer.  

 The Illinois Workers’ Compensation Act was amended by adding Section 1.2: 

 Permitted civil actions. Subsection (a) of Section 5 and Section 11 do not apply to any injury or death sustained by an employee as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such injury or death, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the non-waivable right to bring such an action against any employer or employers. 

 The Workers’ Occupational Disease Act was amended by adding Section 1.1: 

 Permitted civil actions. Subsection (a) of Section 5 and Section 11 do not apply to any injury or death resulting from an occupational disease as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such occupational disease, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the nonwaivable right to bring such an action against any employer or employers. 

***

 PATHFINDER V. INDUSTRIAL COMMISSION

In Pathfinder, the Supreme Court found that an employee who suffered a sudden, severe, emotional shock after witnessing the injury of a co-employee suffered an accident within the meaning of the Act, even though the employee sustained no physical trauma or injury.

COLLIER V. WAGNER CASTINGS, CO.

In Collier, the Supreme Court relied on the decision in Pathfinder to find that emotional distress was compensable under the Workers’ Compensation Act and that a claim for emotional damages and therefore a claim for emotional damages could not escape the bar of the exclusivity provisions.

MEERBREY V. MARSHALL FIELD & CO.

In Meerbrey, the court considered whether emotional distress suffered as a consequence of false imprisonment, false arrest, or malicious prosecution was compensable under the Workers’ Compensation Act:

While our courts have not yet considered whether emotional distress which an employee allegedly suffers as a consequence of false imprisonment, false arrest, or malicious prosecution is compensable under the Act, our decisions have held that the Act covers injurers similar to those alleged here. In Pathfinder Co. v. Industrial Commission, our court held that an employee who suffered a sudden, severe emotional shock after witnessing the injury of a co-employee could recover under the Act, even though no physical trauma or injury was sustained. Similarly, in Collier v. Wagner Castings Co, our court held that emotional distress, including emotional distress intentionally inflicted by a co-employee is compensable under the Act. The plaintiff offers no principled basis for distinguishing between the emotional injuries which he allegedly suffered in the course of his employment and those deemed compensable in Pathfinder and Collier. 

Unfortunately, in Meerbrey, the Plaintiff waived his argument that that the exclusivity provisions of the Act did not bar his common law action against Marshall Field. This argument was never raised in the trial court, and Plaintiff failed to cite to any authority for his claim that the injuries he suffered were not compensable under the Workers’ Compensation Act. The Supreme Court affirmed the dismissal of Marshall Field based on the exclusivity provisions of the Workers’ Compensation Act.

THE ANSWER

As stated at the beginning of this post, the Appellate Court found that the exclusivity provisions of the Illinois Workers’ Compensation Act do not bar a claim for STATUTORY, LIQUIDATED DAMAGES under the Privacy Act. However, it is important to remember that the court did not discuss whether the exclusivity provisions of the Act barred a claim for ACTUAL DAMAGES that are also available under the Privacy Act, but were not sought by the Plaintiff in this case.

THE TAKEAWAY

Be careful when filing suit for any damages resulting from any incident or injury that occurs in the course and scope of an injured party’s employment. When you plead damages, make sure that you differentiate between statutory, liquidated damages and actual damages. If you intend to plead actual damages, it would behoove you to ensure that a claim is also filed with the Illinois Workers’ Compensation Commission in order to protect the rights of the injured party should the court decide that a claim for actual damages is barred by the exclusivity provisions of the Workers’ Compensation Act or the Workers’ Occupational Diseases’ Act.

If you have filed or are contemplating filing a civil case under the Illinois Biometric Privacy Act asking for actual damages related to an injury that might be available only via the Workers’ Compensation Act, feel free to contact me. I can make sure that an Application for Adjustment of Claim is filed at the Commission to protect your client’s rights if (or when) things go sideways on the civil side as to whether your client’s claim for actual damages is barred by the exclusivity provisions of the Illinois Workers’ Compensation Act. Remember that the statute of limitations clock is always ticking, so the sooner you reach out the better. I am available 7 days a week for a free consultation.

 

 

 

 

On October 16, 2020, the 2nd District of the Illinois Appellate Court issued its decision in the case of West Bend Mutual Insurance Company v. TRRS Corporation, et. al. The decision addressed a consolidated interlocutory appeal concerning the propriety of a circuit court’s order staying the proceedings on a claim filed before the Illinois Workers’ Compensation Commission.

FACTS and PROCEDURAL HISTORY

Gary Bernardino was injured in a forklift accident in April of 2017 while in the course of his employment with TRRS and Commercial Tire. The accident resulted in injuries that required rotator cuff surgery. The employers opted to cover Bernardino’s lost wages and medical expenses without ever reporting the injury to the workers’ compensation insurance carrier, West Bend. When Bernardino learned that he would require a follow-up surgery, he filed an Application for Adjustment of Claim with the Illinois Workers’ Compensation Commission on March 29, 2018. On September 12, 2018, Bernardino filed a petition for an immediate hearing under Section 19(b) of the Illinois Worker’s Compensation Act  along with a petition for penalties and fees for unreasonable and vexatious delay under Sections 16 and 19(k) of the Act.

On October 2, 2018, West Bend filed a complaint for declaratory judgment in the circuit court of McHenry County, naming both employers and the injured worker Gary Bernardino as defendants. West Bend alleged that it had written a workers’ compensation insurance policy for the employers that would have covered Bernardino’s claim if the employers had not violated the terms of the policy by failing to provide proper notice of Bernardino’s injury and paying for the expenses related to the first surgery and that the employers had therefore voluntarily decided to forgo coverage. West Bend sought a declaration from the circuit court that it had no duty to defend or indemnify the employers in connection with Bernardino’s workers’ compensation claim.

The Illinois Workers’ Compensation Commission scheduled a hearing on Bernardino’s 19(b) petition to take place on November 19, 2018. On October 9, 2018, West Bend filed an emergency motion in the circuit court to stay the proceedings at the Commission until the declaratory judgement action was resolved. The Circuit Court granted the motion to say the Commission proceedings.

On October 25, 2018, Bernardino filed an emergency motion in the circuit court to vacate the stay order, arguing that the Commission was the proper venue for a ruling on the coverage issue raised in West Bend’s declaratory judgment action. The Circuit Court found that the matter was ultimately a question of law, and was more appropriately brought before the circuit court than the Commission, and on November 1, 2018 entered an order granting West Bend’s emergency motion to stay the Commission proceedings.

Bernardino filed a motion on November 6, 2018 seeking to vacate the stay order dated  November 1, 2018.  On November 8, 2018, Bernardino filed his notice of a Rule 307(a)(1) interlocutory appeal from the stay order dated November 1, 2018. That same day, the circuit court conducted a hearing on Bernardino’s motion to vacate the say order dated November 1, 2018. The circuit court continued Bernardino’s motion to vacate the stay order to January 7th, 2019.  On December 10, 2018, Bernardino filed his notice of a Rule 307(a)(1) interlocutory appeal from the continuance order dated November 8, 2018 and on December 12, 2018, Bernardino filed a motion to consolidate both appeals, which was granted by the Appellate Court.

ANALYSIS BY THE APPELLATE COURT

The Appellate Court began by examining its own jurisdiction. Rule 307(a)(1) provides that an appeal may be taken from an interlocutory order that grants, modifies, reuses, dissolves or refuses to dissolve or modify an injunction. The Illinois Supreme Court has held that the issuance of a stay of an administrative order pending judicial review constitutes an injunction for purposes of appeal under Rule 307(a)(1). Therefore, the trial court’s stay order dated November 1, 2018 is reviewable under Rule 307(a)(1) and Bernardino perfected his appeal by filing a notice of an interlocutory appeal within 30 days of the entry of the order. However, the Appellate Court dismissed Bernardino’s appeal of the circuit court’s order of November 8, 2018 for lack of jurisdiction in that the order was merely a continuance and did not grant, modify, refuse, dissolve or refuse to dissolve or modify an injunction.

The Appellate Court found that the proper standard of review of the November 1, 2018 stay order was de novo as opposed to the abuse of discretion standard because the question presented was a question of law.  The Appellate Court agreed with West Bend that as a matter of law, the circuit court was the proper venue for its declaratory judgment action, but that by staying the Commission proceedings, the circuit court had erroneously applied the doctrine of primary jurisdiction.

What is the doctrine of primary jurisdiction?

The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. ‘Exhaustion’ applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. ‘Primary jurisdiction,’ on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. United States v. Western Pacific R.R. Co., 352 U.S. 59 (1956). 

The Illinois Supreme Court has consistently held that under the doctrine of primary jurisdiction, when a court has jurisdiction over a matter, it should, on some occasions, stay the judicial proceedings pending referral of the controversy, or a portion of it, to an administrative agency having expertise in that area.

How do Illinois courts determine when they should apply the doctrine of primary jurisdiction?

In considering whether the doctrine applies, the courts must first determine whether the legislature has vested “exclusive original jurisdiction” over the disputed matter in an administrative agency. If it cannot be shown that the legislature intended to deprive the circuit court of its jurisdiction over the disputed subject matter, then the circuit court shares concurrent jurisdiction with the administrative agency. The question then becomes whether the circuit court should stay the judicial proceedings pending referral of a controversy, or some portion of it, to the administrative agency having expertise in the area. Thus, under the doctrine, a matter should be referred to an administrative agency when it has a specialized or technical expertise that would held resolve the controversy. And if an agency’s technical expertise is not likely to be helpful, courts should not relinquish authority over a matter to the agency.

The Illinois Supreme Court has ruled that when there is concurrent jurisdiction, the issue becomes which forum’s jurisdiction is “paramount”. In this case, the jurisdiction of the circuit court is paramount. A declaratory judgment action solely concerns the scope of coverage afforded in a workers’ compensation insurance policy. The construction of that insurance policy is not a determination of the factual issues related to the determination of workers’ compensation benefits owed, the nature and extent of Bernardino’s injuries, or any potential defenses to the workers’ compensation claim. If it was, then the circuit court would have no original jurisdiction in the case and the Commission would have exclusive jurisdiction.

THE APPELLATE COURT’S DECISION

The Appellate Court reversed the Circuit Court’s order staying the Commission proceedings, noting that Bernardino’s 19(b) petition sought only to determine whether he is entitled to receive medical services, and that a stay of those proceedings would contradict the legislature’s clear intent to provide an expedited process for employees awaiting medical services if the proceedings at the Commission could be suspended while the employer and insurance provider dispute the issue of coverage in the circuit court.

THE TAKEAWAYS

  • In Illinois, when an insurance provider files a complaint for declaratory judgment in a workers’ compensation case, the circuit court is going to have jurisdiction to hear and rule on that complaint for declaratory judgment. However, that same court should not grant a stay of the underlying Commission proceedings while the insurance carrier and the employer dispute the coverage issue in circuit court.
  • If you are representing the injured worker in such a proceeding, be sure to appeal any stays of Commission proceedings ordered by the Circuit Court using Rule 307(a)(1). Only appeal the actual stay order. You do not need to appeal continuance orders related to that stay order, as they will be dismissed for lack of jurisdiction by the Appellate Court.
  • If the injured worker is not named as a defendant in the complaint for declaratory judgment, make sure that you file a motion to intervene in the action to protect the rights of the injured employee and ensure that the proceedings before the Commission are not improperly stayed by the circuit court pending resolution of the complaint for declaratory judgement.  You might also want to go ahead and add the Injured Workers’ Benefit Fund as a Respondent in your claim as soon as you learn that there may be an issue with coverage.

Here is a link to the Appellate Court’s decision:  West Bend Mutual Insurance Co. v. TRRS Corp., 2019 IL App (2d) 180934

As always, if you find yourself in a procedural quandary, or if you have any other questions about workers’ compensation in Illinois, do not hesitate to contact me for a free consultation.

In this blog post, we will continue to discuss the issues surrounding average weekly wage. In the case of Illinois-Iowa Blacktop, Inc. v. Industrial Commission, the court acknowledged that the special considerations accorded construction and seasonal workers due to the unique nature of their work have long been recognized in Illinois.  For example, some construction workers might be injured during the first week of employment and others work most of the 52 weeks per year; that as far as weather is concerned, the construction season is longer in Carbondale than in Chicago; and that of course modern methods have lengthened construction seasons.

Prior to the reforms in September of 1980, Section 10 of the Illinois Workers’ Compensation Act had a specific provision to address wage issues for employees who did not work year-roundIt read like this: 

As to the employees in employment in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, providing the minimum number of days which shall be so used for the basis of the year’s work shall not be less than 200. Ill.Rev.Stat.1979, ch.48, par.183.10(a), (e).  

The current version of Section 10 plainly states that in all cases where the employee lost five or more days of work during the 52 weeks prior to the injury, the lost time (to the extent not due to the fault of the employee) should be deducted from the wage calculation denominator.159 

Illinois-Iowa Blacktop (Appellate Court Decision)

In the above-mentioned case of Illinois-Iowa Blacktop, the Appellate Court affirmed the Commission’s decision to determine a construction worker’s average weekly wage by using the worker’s hourly wage per the contract, and calculating what he should have earned during the 52 preceding weeks based on the number of non-overtime hours he worked and dividing that total by 52. The employer argued that this calculation resulted in a windfall to the Petitioner. A windfall is defined by Merriam Webster as “unexpected, unearned, or sudden gain or advantage.”

The court reasoned that although the calculation did result in a slight windfall to the Petitioner in Illinois-Iowa Blacktopsuch a windfall was set off by the Petitioner’s inability to work again. Furthermore, the court went to explain that even under the old Section 10, the principle against windfalls was not absolute.  

James Brown v. Riggs Construction (Commission Decision)

In the case of James Brown v. Riggs Constructionboth the Commission and the Arbitrator came up with the same average weekly wage for a construction worker but used two different methods. In this case, the Petitioner was a union carpenter that only worked for the Respondent one full day before his accident on April 7, 2005. The parties agreed that Petitioner was hired pursuant to a collective bargaining agreement and that Petitioner’s hourly wage was always $34.32 prior to the date of the accident. 

The Arbitrator used the third method wage calculation, finding that Petitioner’s average weekly wage was $1,372.80 since the collective bargaining agreement assumed a 40-hour work week. The Respondent argued that instead, the Arbitrator should have relied on the fourth method, using the earnings of a “like and kind” employee in calculating the average weekly wage. In support of that argument, Respondent offered records concerning wages earned by another union carpenter who worked for Respondent in 2004 and 2005. 

The Commission applied the “like and kind” analysis but didn’t rely on the like employee’s wage records. Instead, the Commission relied on Petitioner’s testimony and records of wages that the Petitioner earned while working as a union carpenter for several contractors between April 2004 and April 2005.  

  • Petitioner had testified that he worked for Avenue, Inc. From April 19, 2004 through July 2, 2004 and that he never worked a 40-hour week during that interval.  
  • Petitioner also testified that he worked for RCI for five to six weeks, again absent any 40-hour work weeks. 
  • Petitioner then worked for Denk and Roche from February 2005 through April 2005 and once again never worked a 40-hour week. 
  • Finally, Petitioner worked 8 hours for Respondent on April 6, 2005, the day before the accident. 

The Commission totaled the earnings, and came up with a total of $18, 601.44. The Commission relied on the evidence of work with past employers to determine that Petitioner worked for a total of 13.55 weeks prior to the date of the accident. The Commission then divided Petitioner’s earnings of $18,601.44 by 13.55 weeks, and came up with an average weekly wage of $1,372.80, which is the same number the Arbitrator arrived at by multiplying Petitioner’s wage of $34.32 by 40 hours pursuant to the collective bargaining agreement. 

Not everybody works a steady 9 to 5 job. If you are a construction worker, it isn’t always easy to decipher your average weekly wage. And as you can see from the Commission’s decision in James Brown, sometimes you yourself can be a stand in for a “like employee” if you are injured on the job before you have the opportunity to establish a weekly wage with your new employer. If you are a union member, it is important that to have an updated copy of your collective bargaining agreement, along with access to paystubs from both your current and prior employers. This will make it easier to establish the correct average weekly wage, and ensure you receive the benefits you deserve. 

If you are having difficulty figuring out your correct average weekly wage, feel free to contact me for a free consultation.

The Illinois Workers’ Compensation Act states that bonuses are not to be included in the average weekly wage.  But the courts have found there is a distinction between incentive-based pay, which an employee received in consideration for specific work performed as a matter of contractual right, and a bonus, which an employee receives for no consideration or in consideration of overall performance at the sole discretion of the employer. Bonuses have been defined by the courts as extra benefits given to the employee by the employer  

 A bonus is an extra benefit given gratuitously to an employee by the employer. Look at what the Appellate Court said about production bonuses and whether they met the definition of “bonus” as contemplated in Section 10 of the Act: 

 Claimant received bonuses in consideration for work performed pursuant to his collective bargaining agreement and not as an extra benefit provided by employer gratuitously. The production bonus plan stated that it was an important part of claimant’s compensation package. The employer calculated bonuses based upon measures of volume and quality of steel produced and the number of days worked without a “lost time accident.” Employer had no discretion and was obligated to pay the production bonuses if earned by its employees who had worked on the dates the objective measures were taken. The fact that an employee who did not work on those days would not receive the production bonuses further supports the Commission’s finding that the production bonuses were not a bonus as contemplated by Section 10 of the Act, but rather received in consideration for work actually performed. Because the production bonuses earned by claimant were not a “bonus” as contemplated under Section 10 of the Act, the Commission did not err by including production bonuses in calculating claimant’s average weekly wage. 

 Maria Alvarado v. Menards 

 In this case, the Commission addressed whether an “Instant Profit Sharing” payment from the company should be included in the average weekly wage in the case of Alvarado v. MenardsPetitioner had received a check every February as part of an “Instant Profit Sharing” plan. The check received in the year prior to the date of accident amounted to $7,717.76, and was included in the W-2 statement under “wages, tips and other compensation.”  

Respondent Menards described the “Instant Profit Sharing” plan as discretionary. It could be removed at any time, and Menards had the discretion to end the program at any time. The benefit was based on the profit earned collectively by the unit that a team member is assigned to, not based on the productivity of the individual employee.  

The Commission decided that the “Instant Profit Sharing” payment was essentially a bonus and should not be included in the calculation of the average weekly wage. The Commission noted that the IPS program was clearly discretionary, and that Menards reserved the right to amend or even cancel the program in whole or in part without notice and in its sole discretion. Furthermore, the documents explicitly showed that Menards’ intention to pay the benefits was not a guarantee, and that no contractually enforceable rights between Menards and its employees were created in the process. The most important factor was that the payments were based on the profitability of a unit, and not the individual employee. Therefore, the payments were not truly incentive based pay that an employee would receive for specific work performed as a matter of contractual right.  

The morale of the story is that regardless of what your employer calls it, a bonus isn’t a bonus if you earn it for specific work that you yourself performed. Making sure that your employer is using the correct average weekly wage can go a long way in increasing the benefits that you receive as a result of your work injury. If you need help figuring out your average weekly wage, contact me for a free consultation.

On October 5, 2020, the Center for Medicare and Medicaid Services (CMS) released Version 3.2 of the WCMSA Reference Guide. CMS identified the following changes:

  • To define the major medical centers that the Workers’ Compensation Review Contractor (WCRC) uses to estimate future medical expenses in proposed WCMSA’s, a list of major medical centers, organized by state, medical center name, National Provider Identifier (NPI), and ZIP code, has been provided (Section 9.4.4 and Appendix 7).

The major medical centers identified for the State of Illinois are as follows:

  • Advocate Good Samaritan Hospital
  • Memorial Medical Center – Springfield
  • OSF Saint Francis Medical Center
  • The University of Chicago Medical Center

The WCMSA Reference Guide is the Medicare Set Aside Bible. Every workers’ compensation attorney should read it, and keep a copy close by for easy reference. If you have a workers’ compensation claim and have applied for or are receiving Social Security Disability Benefits, or if you are already a Medicare beneficiary, you need to make sure that any settlement you agree to protects Medicare’s interests. Feel free to contact me anytime for a free consultation.

 

Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, Version 3.2 (October 5, 2020)

Jurisdiction is a court’s power to decide a case or issue a decree. Remember that the Commission is a state agency, not a court. In a workers’ compensation claim, jurisdiction relates to the Illinois Workers’ Compensation Commission’s power to decide a case or issue a decree.  

The Illinois Workers’ Compensation Act gives the Commission jurisdiction over workers’ compensation claims if the accident occurred in Illinois, if the contract for hire was made in Illinois, or if the injured worker’s employment was principally localized in Illinois. Jurisdiction will be an easy hurdle if the accident occurred in Illinois, or if your contract for hire was made in Illinois. It might not be so simple if you get stuck having to prove that your employment was principally localized in Illinois.  

 Did the accident occur in Illinois? 

On its face, this would seem to be an easy question for the Commission. And most of the time you would be right. But what if an injury occurs on a bridge between Missouri and Illinois?  

That question was addressed by the Commission in the case of Mosby v. MTA. The Commission looked to the civil case of Schaeren v. Querner Truck Lines, where the court found that both Illinois and Missouri had concurrent jurisdiction. Concurrent means “having authority over the same matters.” The Commission reasoned that “the State keeps its jurisdiction over that which is attached to it.” That means that if a bridge is attached to a State, then the State may exercise legal authority over what happens on the bridge. 

If the accident occurred in the State of Illinois, the Commission has jurisdiction. Likewise, iaaccident occurs on a bridge or other structure that is attached to Illinois, the Commission will likely find that it has jurisdiction to hear the case.  

 Was the contract for hire made in Illinois? 

If you were hired in Illinois, the Commission has jurisdiction over your work accident even if happen to be injured in another state. This is important because many states have workers’ compensation benefits that are far less generous than benefits you can receive in Illinois. The contract for hire is made where the last act necessary for the formation of the contract occurred. For example, if the employee is required to pass a drug test before being hired, and that drug test is performed in Indiana, then Indiana might be the state where the contract for hire was made because the last act required for employment was passing a drug test. If a job is offered by telephone and the worker is in Indiana when he or she receives the call and accepts the offer, then the contract is formed in Indiana, because an oral contract consummated over the telephone is deemed made where the words of acceptance are uttered.

If the contract for hire was made in Illinois, the Commission should find that it has jurisdiction to hear your case.  

 Was the worker’s employment principally localized in Illinois? 

In a perfect world, you want to show that either the accident occurred in Illinois, or that the contract for employment was made in Illinois. But if you can’t prove either of those, then you still might have a shot at winning a jurisdiction argument. Your last argument is the “principally localized” argument. An injured worker’s employment is principally localized in a particular state when the employer has a place of business in that State and the injured worker regular works at or from that place of business. Alternatively, the injured worker’s employment could still be found to be principally located in a State if the worker lives and spends a substantial amount of time working for the employer in that State. 

 The alternative test above requires the Commission to look at 5 factors. Those five factors are: 

  1. where the employment relationship is centered, i.e., the center form which the employee works.  
  2. the source of remuneration to the employee.  
  3. where the employment contract was formed.  
  4. the existence of a facility from which the employee received his assignments and is otherwise controlled; and  
  5. the understanding that the employee will return to that facility after the out-of-State assignment is complete.  

These types of questions often arise when an individual has a job that requires lots of travel, such as a truck driver, pilot, or traveling salesperson. You want to be able to check as many of the 5 factors as you can if you’re trying to prove that your employment is principally localized in Illinois. Your jurisdiction argument will be much easier if your accident occurs in Illinois and / or your contract for hire was made in Illinois.  If you are not sure whether you have an Illinois Workers’ Compensation Claim, contact me for a free consultation. 

In 1903 and 1904, shortly before the opening of the St. Paul Mine in Cherry, Illinois, the state passed child labor laws that pulled twenty-two hundred boys aged eleven to fifteen from the mines. 

During the recovery efforts following the Cherry Mine Disaster, the chief state factory inspector found out that two young boys were among the dead. The inspector told reporters that Illinois mine owners would be immediately ordered to remove everyone under sixteen years of age from their mines.  

 The chief state factory inspector went on to state that most of the age affidavits for the fifteen hundred children that were employed in the mines in 1909 “weren’t worth the paper they were written on”, and owners were being notified to reexamine every affidavit.

The Illinois Workers’ Compensation Act states that an illegally employed minor can reject his or her right to benefits under the Act and file a lawsuit in circuit court. This must be done within 6 months of the date of injury or death of the minor, or within 6 months after the appointment of a legal representative, whichever is later. If the minor decides to pursue workers’ compensation benefits, then he or she must file a waiver of his or her right to reject benefits under the Act. That waiver must be approved by the Commission. Any payment made to an illegally employed minor must also be approved by the Commission. Once the waiver and payment have been approved by the Commission, then the minor cannot later decide to pursue the claim in circuit court.  

 The Act provides also provides additional compensation for the families of an illegally employed minor that is killed in the course and scope of employment. Section 7(g) states that if an injured employee is under 16 years of age at the time of the accident and is illegally employed, the death benefits shall be increased by 50%.

If you are the parent or guardian of an illegally employed minor that is injured while working, do not mess around and try to handle this situation yourself. Get an experienced workers’ compensation attorney involved immediately to make sure that the claim is handled properly.  Feel free to contact me for a free consultation. 

 

I like reading Rule 23 orders. In Illinois, Rule 23 orders are decisions by the Appellate Court that can’t be used as precedent except in very limited circumstances. They often fall within two categories. The first category consists of scenarios that happen so often, it would be silly to publish all of them. It’s the same issues over, and over, and over again. Even though it can get boring reading these particular decisions, they are excellent if you are looking for the most recent analysis of a common issue. It can do wonders for your brief writing, and can significantly reduce your research time.

The second category, what I refer to as the “fun stuff”, deals with black swan events and fact scenarios that are so off the rails that publishing those opinions would do more harm than good. These are the diamonds in the rough. These Rule 23 orders can help you out of a tough spot, or even better yet, help you avoid nasty problems before they happen. I strongly recommend that attorneys read through Rule 23 orders on a regular basis. It will prepare them for those times when they find themselves in a situation that “only happens to them.” We all know that feeling, don’t we?

Here is a procedural nightmare that I found to be very instructive for those of us who are inclined to avoid getting our cases stuck in procedural purgatory:

Carlinville United School District No. 1 v. The Illinois Workers’ Compensation Commission, 2020 IL App (4th) 190548WC-U (Rule 23)

On April 3, 2017, the Commission found that petitioner had failed to prove she sustained accidental injuries arising out of and in the course of her employment. The Commission denied the claim for benefits. The Petitioner appealed to the Circuit Court, and on December 8, 2017, the circuit court made the following docket entry: “Ruling – The Commission decision is AGAINST the manifest weight of the evidence. Clerk to forward docket entry to attorneys of record.” Petitioner appealed the docket entry and Respondent moved to dismiss the appeal, arguing that an order reversing an award and remanding the case to the Commission was interlocutory and not appealable. Attached to Respondent’s motion was a printout from the Commission representing that on December 8, 2017, the circuit court remanded the case to the Commission – although the court’s docket entry of that date contains no mention of a reversal or remand. The Appellate court agreed that it lacked subject matter jurisdiction and dismissed the appeal.

The Commission issued its second decision on November 30, 2018 awarding Petitioner $31,556.50 in medical benefits, 10% loss of use of the right hand, 10% loss of use of the left hand, 10% loss of use of the right arm, and 10% loss of use of the left arm. Respondent filed for circuit court review of the Commission’s second decision. The Circuit Court confirmed the decision, the the cases again came before the Appellate Court.

Look at what the Appellate Court had to say about this matter:

That the Commission’s first decision contradicts the manifest weight of the evidence is, as we said, a finding by the circuit court, and we express no opinion about the finding. But we wish to point out the distinction between a finding and a disposition based on a finding. There is a difference between a finding by the circuit court, e.g., that the Commission’s decision is against the manifest weight of the evidence, and what the circuit court decides to do about the finding. Findings should result in a stated disposition. 

The Appellate Court cited to Section 19(f)(2) of the Illinois Workers’ Compensation Act, which  gives the circuit court 3 options when it comes to dispositions:

  1. The circuit court may confirm the Commission’s decision, or
  2. The circuit court may set aside the Commission’s decision, and if the record is factually sufficient, enter a decision that is legally justified, or
  3. The circuit court may set aside the Commission’s decision and remand the case to the Commission for further proceedings with directions tot he Commission, if necessary.

In the Carlinville case, the circuit court did none of those things. The Appellate Court determined that the docket entry of December 8, 2017 contained no disposition, and therefore, the Commission’s first decision was still pending in the circuit court. The Appellate court found that the manifest weight finding in the docket entry of December 8, 2017 to be interlocutory, and to the date of THIS decision by the Appellate Court, the circuit court remains free to rescind that finding and make the opposite finding.

Then how did the Commission come up with the second decision, you may ask?

The Appellate Court answered by stating that the Commission assumed that on December 8, 2017, the circuit court remanded the case to the Commission. But the Appellate Court explained that there was no judicial order to that effect, and could find no statute that authorizes the Commission to change its final decision denying workers’ compensation benefits into a final decision awarding such benefits. And since any action taken by the Commission outside its statutory authority is void, and the courts have an independent duty to vacate void orders, the Appellate Court did just that.

So how did it all end up?

The Appellate Court vacated the Commission’s second decision. The Appellate Court also vacated the Circuit Court’s 2nd judgment based on the Commission’s second decision. This means that the Circuit Court’s first administrative review action, the one from way back in 2017, remains pending and awaiting a disposition pursuant to Section 19(f)(2) of the Act, and the Appellate Court remanded the case to the Circuit Court with directions to enter a disposition. That’s right. Almost two and a half years of work down the tubes.

How can this be avoided?

Here are a couple of ideas for avoiding this problem:

  1. When you brief the circuit court, make sure you address Section 19(f)(2) in your prayer for relief. Not all circuit court judges are as familiar with the Illinois Workers’ Compensation Act as the Appellate Court’s Workers’ Compensation Division judges.
  2. If for any reason you get a decision from a circuit court judge that does not include a disposition, file a motion to reconsider and emphasize the need for a proper disposition. Maybe you even go so far as to provide a copy of this Rule 23 order to both the court and your opponent. Even though Rule 23 orders are only supposed to be cited in support of contentions of double jeopardy, res judicata, collateral estoppel or law of the case, I’m sure that both your opponent and the court will be grateful for the “heads up”, especially when they realize it could save everybody involved years of wasted time and effort.

Are you trying to navigate a workers’ compensation claim on your own and find yourself stuck in no-man’s land? Or maybe you’re a new attorney who is stuck and doesn’t know what to do next? Feel free to contact me. I just might have a Rule 23 order tucked away in my archives that directly addresses your particular procedural nightmare.

 

On September 24, 2020, the Illinois Supreme Court filed its decision in the case of Kevin McAllister v. The Illinois Workers’ Compensation Commission. The Supreme Court held that the Commission’s finding that the claimant’s accidental knee injury did not arise out of his employment is against the manifest weight of the evidence, and reversed the Commission’s decision as well as the judgments of the lower courts.

THE ACCIDENT

On August 7, 2014, McAllister was working at a restaurant setting up his station for the evening shift when another cook mentioned that he may have misplaced a pan of carrots in the walk-in cooler. McAllister went into the walk-in cooler to locate the pan of carrots, and knelt down on both knees to check the top, middle and bottom shelves. When McAllister tried to stand up from kneeling, he felt his right knee pop. His right knee then locked up, and McAllister was unable to straighten his leg. He had to hop into the general manager’s office to sit down and tell him what happened, after which the general manager drove McAllister to the hospital.

THE ARBITRATOR’S DECISION

The Arbitrator got this case right, finding that McAllister’s act of looking for the misplaced pan of carrots in the walk-in cooler was an act the employer reasonably could have expected him to perform in his duties as a sous-chef.  In addition to awarding benefits, the Arbitrator found that the employer’s refusal to pay benefits was dilatory, retaliatory, and objectively unreasonable. For that reason, the Arbitrator also awarded penalties and attorney fees.

THE COMMISSION DECISION

The employer filed a petition for review of the Arbitrator’s decision. On review, the Commission set aside the Arbitrator’s decision, finding that McAllister failed to prove that his knee injury arose out of his employment because he was subjected to a neutral risk which had no particular employment or personal characteristics. In other words, the Commission decided that the act of getting up from a kneeling position did not have any peculiar employment characteristics and that McAllister had failed to establish that he was exposed to this “neutral risk” to a greater degree than the general public. One Commissioner did dissent, stating that he would have affirmed the Arbitrator’s decision in its entirety.

THE CIRCUIT COURT DECISION

The Circuit Court agreed with the Commission, finding that McAllister’s act of standing up from a kneeling position was a neutral risk that did not expose him to more risk than the general public.

THE APPELLATE COURT DECISION

A majority of the Appellate Court affirmed the Commission’s decision. All five justices agreed with the Commission’s determination that claimant was not injured due to an employment related risk and that the determination was not against the manifest weight of the evidence. The panel disagreed on whether a compensable injury can arise out of an employee’s employment when the employee is injured while performing job duties that involve common bodily movements or routine “everyday activities” such as bending, twisting, reaching, or standing up from a kneeling position.

THE SUPREME COURT’S DECISION

The Supreme Court states that the first step in risk analysis is to determine whether the claimant’s injuries arose out of an employment-related risk. A risk is distinctly associated with an employee’s employment if, at the time of the occurrence, the employee was performing:

  1. Acts he or she was instructed to perform by the employer,
  2. Acts that he or she had a common-law or statutory duty to perform, or
  3. Acts that the employee might reasonably be expected to perform incident to his or her assigned duties.

The Supreme Court found that McAllister’s knee injury did arise out of an employment related risk because the evidence establishes that at the time of the occurrence his injury was caused by one of the risks distinctly associated with his employment as a sous-chef. The evidence established that the acts that caused claimant’s knee injury (kneeling down on the floor in the walk-in cooler to look for a pan of carrots misplaced by a coworker and then standing up from the kneeling position injuring his knee) were risks incident to the employment because these were acts his employer might reasonably expect him to perform in fulfilling his assigned job duties as a sous-chef.

The Supreme Court went on to find that a compensable injury can arise out of an employee’s employment when the employee was injured performing job duties that involve common bodily movements or everyday activities if it is established that the risk of injury falls within one of the three categories of employment-related acts listed above. The Supreme Court emphasized that common bodily movements and everyday activities are compensable and employment related if the common bodily movement resulting in an injury had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury. There is no requirement that a claimant provide additional evidence establishing that he was exposed to the risk of injury to a greater degree than the general public once he has proven that he was involved in an employment-related accident.

If you have been injured while performing an act that you were instructed to perform by your employer, or an act that you had a duty to perform, or even an act that your employer might reasonably expect you to perform as part of your job duties, then you have suffered a compensable accident. Even if that accident was something as simple as getting up from a kneeling position, you may be entitled to substantial benefits and compensation for your injuries. Do not hesitate to contact me today for a free consultation.

Kevin McAllister v. The Illinois Workers’ Compensation Commission et. al

What if I am injured, but I work for an employer that is not self-insured and does not have workers’ compensation insurance? 

If an employer is not self-insured and does not have workers’ compensation insurance, then an injured worker may have to proceed against both the employer and the Injured Workers’ Benefit Fund (IWBF). The IWBF is a state fund that is funded by penalties and fines paid by uninsured employers. The money held by the IWBF is used for payment of workers’ compensation benefits for injured workers whose employees did not have workers’ compensation insurance coverage. Unfortunately, the worker does not receive any benefits until a final decision is rendered by the Commission. The worker does not receive weekly benefits as they normally would if their employer had workers’ compensation insurance.  

 At the end of the fiscal year, all the decisions that named the IWBF as a Respondent will be paid at a pro rata share of the money available in the fund that year. This means that the worker might not receive the entire amount of the benefits they were owed by their employer. 

 Can I sue my employer for not having workers’ compensation insurance?  

If your employer does not have workers’ compensation insurance and is not self insured, then you have the option to proceed against the employer in circuit court much like a personal injury claim. Before filing in the circuit court, you need to have what has been dubbed a “Keating Hearing”, also known as a 4(d) hearing. 

 How do I request a 4(d) “Keating Hearing”?  

 Your first step is to file an Application for Adjustment of Claim with the Illinois Workers’ Compensation Commission. After your claim is filed, you must verify with the National Council on Compensation Insurance (NCCI) that your employer did not have workers’ compensation insurance on the date of your accident. In order to confirm this with the NCCI, you must send them a subpoena requesting information regarding whether a workers’ compensation insurance policy was in effect with your employer on the date of your accident. 

 Once you receive confirmation from NCCI that your employer is not insured, then you should file a request for a hearing before a Commissioner. Your claim will be assigned a Commission number and be set on an upcoming Commissioner’s call. On the Notice of Motion, you should indicate 4(d) hearing / Keating Hearing in the “Other” section of the form.

 The term “Keating Hearing” is based on the case Keating v. 68th and Paxton, LLC, in which the Illinois Appellate Court made it very clear that an injured worker can’t proceed against an uninsured employer under Section 4(d) until the Commission has made its determination as to whether an employer willingly failed to obtain workers’ compensation insurance.

In order to proceed in circuit court, you need to have a decision by the Commission that the employer was uninsured. You must attach the Commission decision to your complaint, or risk having your complaint dismissed by the Circuit Court. The Commission, and not the circuit court, is the agency empowered to determine whether an injured worker is entitled to seek relief under Section 4(d) of the Act. 

Proving that your employer willingly failed to obtain workers’ compensation insurance is no cakewalk. The Appellate Court recently found that an injured worker fell short in proving that his employer willingly failed to obtain workers’ compensation insurance because the injured worker only provided evidence of a nonrenewal notice, but did not offer evidence showing proof of mailing of that nonrenewal notice. American Kitchen Delights, Inc. v. The Illinois Workers’ Compensation Commission, 2020 IL App (1st) 191593WC (June 12, 2020). 

 DON’T WAIT:  If you have an uninsured employer and want to pursue your case in circuit court, then you must have a decision from the Commission before you file the complaint in Circuit Court. This requires that you have to a Commission decision before the Statute of Limitations runs out on your claim. To say that this is a highly technical undertaking would be an understatement, especially in light of the Appellate Court’s recent ruling in American Kitchen Delights, Inc. I strongly recommend that you find a lawyer to assist you in such an undertaking. But don’t take too long. That statute of limitations clock never stops ticking, so get started immediately!