December 12, 2018

Workers’ Compensation Exclusive Remedy

A personal injury plaintiff alleges that: defendant negligently trained, supervised, controlled, managed, and hired employees, so as to allow them to negligently and recklessly operate a forklift in such a manner as to strike plaintiff, causing him injuries. Plaintiff has to present material facts to prove that he has a right to tort damages, and that defendant is civilly liable for his alleged injuries.

A plaintiff cannot pursue a tort action against a defendant if they have an employer-employee relationship. Whether a claimant may pursue a tort action, or is confined to workers’ compensation proceedings depends on whether the acts complained of were normally within an employer-employee relationship.

An employee is: every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.

In determining whether an employment relationship exists: any person rendering service for another, other than as an independent contractor is presumed to be an employee. The most important element in an employer-employee relationship is the alleged employer’s control over the alleged employee with respect to the means and manner in which he is performing the job.

For example, an employer-employee relationship existed between plaintiff and defendant if plaintiff provided services to defendant as a laborer. Defendant had exercised its right to direct and control the mode and manner plaintiff did his work. When defendant did not like the way plaintiff completed a task, defendant’s supervisors would instruct plaintiff as to the correct procedure. When Plaintiff finished an assignment, defendant’s supervisors would direct plaintiff to his next assignment.

When an employer-employee relationship exists between plaintiff and defendant, plaintiff may not pursue a tort action against defendant, and is confined to workers’ compensation for his alleged injuries. Because plaintiff’s injuries are compensatable under worker’s compensation, his right to recover benefits provided by workers’ compensation is the exclusive remedy against defendant.

Liability for workers’ compensation shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of employment. This means that an employer, whether it is negligent or not, has to pay for any injuries that its employees sustain in the course of their duties.

The right to recover workers’ compensation is the sole and exclusive remedy of the employee. This means that an insured employer is not liable for its employees’ industrial injuries under general tort principles. An injured employee’s only remedy is a claim for workers’ compensation.

“Unexplained” Slip and Falls at the Workplace

For the “clumsy” person, occasional bumps, slips, and falls, are a way of life. People can lose their footing for no apparent reason, and through no fault of anything or anyone. But what happens to the clumsy worker who, say, slips and falls at work and suffers more than just a scrape, cut, or bruised ego? Can that worker seek compensation for his mysterious injuries by filing a Workers’ Compensation claim?

The Illinois Appellate Court (4th District) recently addressed this question. Although the question had been asked before, the answer wasn’t very clear. In this case, the claimant (a security guard) was (in the course of her work duties) patrolling her employer’s property, a job which required her to descend a metal staircase. In doing so, she slipped and fell, landing on her left side. Although she could venture some guesses as to the reason she fell- she had recently walked through a freezer, for example- she could not provide any meaningful explanation for her fall, such as a defect in the stairway or a puddle of liquid.

An arbitrator denied her claim for Workers’ Compensation for this very reason. The Illinois Workers’ Compensation Commission also denied her claim, a decision which was upheld by the appellate court. The court explained that a claimant bears the burden of proving that her injury arose “in the course of the employment.” For an injury caused by an unexplained fall to arise out of the employment, a claimant must present evidence which supports a reasonable inference that the fall stemmed from a risk related to the employment. If the injury comes about because of a condition to which the general public is equally exposed, the injury does not arise out of employment and the Workers’ Compensation claim will be denied.

Of course, because the claimant/employee in this case couldn’t testify to any explanation for her fall, the Court could not find that the reason for her fall was due to a risk related to her employment. Given the claimant’s testimony, or lack thereof, it would seem instead that her injuries were caused by one of those ubiquitous unexplained falls, that can happen to anyone at anytime, regardless of their place of employment.

Incriminating a Witness For Testifying S/he Used Illegal Substances

Can a witness be incriminated for testifying in a deposition in a worker’s compensation, noncriminal proceeding that he used unlawful substances in the past?

There is persuasive authority that might allow a witness to be compelled to testify whether s/he used illegal drugs in the past. Liability for workers’ compensation may exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment in cases, including where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.

If an employee’s injury is caused by his or her unlawful use of a controlled substance, it may be necessary for the employer to ask if the employee had used illegal drugs in the past since that would be a factor in determining whether the employee’s injuries resulted from his/her own intoxication.

If the workers’ compensation case involves a psychiatric injury compensable as a mental disorder which causes disability or need for medical treatment, in order to establish that a psychiatric injury is compensable, an employee may need to demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. This may allow an employer to inquire into an employee’s past drug use to determine if the employee’s psychiatric injury was caused predominantly by the actual events of employment, or the employee’s own use of illegal substances.

If there is a witness’ communications to a psychotherapist as a patient, the evidence code may not provide for privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if the issue has been tendered by the patient. For example, if the witness is a patient of a pschotherapist, by claiming that the patient has psychiatric injuries, the patient puts his mental condition in issue. There might not be privilege concerning communications with a psychotherapist.

As to the privilege against self-incrimination, the US Constitution states that persons may not be compelled in a criminal cause to be a witness against themselves. The self-incrimination privilege can be claimed in any proceeding, whether criminal, civil, or administrative.

However, the privilege against self-incrimination of a witness is not to keep out probative evidence. The privilege is only to prevent testimony which might be used against him in a subsequent criminal suit. A self-incrimination claim may be rejected if under the circumstances, the witness may not reasonably apprehend that the disclosures could be used against him in a criminal prosecution. For example, a warning against self-incrimination would not be required in a case involving narcotic addiction if narcotic addiction is not criminal conduct.

A party seeking civil relief may not refuse on the grounds of the privilege to testify on matters relevant to his recovery. Courts in several jurisdictions have recognized that injustice may result where the parties to litigation, exercising the constitutional privilege against self-incrimination, refuse to testify concerning matters relevant and material to the issues of the pending cause. To permit relief to someone who refuses to testify on matters which, if known, could prevent recovery, is unfair.

In a workers compensation case for civil relief, a witness who used illegal drugs in the past may be compelled to testify but may not be subject to criminal liability if narcotic addiction is not criminal conduct.

Lower Back Injuries & Workers’ Compensation

The plaintiff in The City of Chicago v. The Illinois Workers’ Compensation Commission worked as a laborer for the City of Chicago’s sewer department. While pushing a wheelbarrow full of bricks in August 2002 he injured his lower back. After being diagnosed with a herniated disk at L4-L5, he underwent physical therapy and two microdisectomies. By July 2003, he had returned to work but still experienced daily pain and muscle spasms in his legs.

While his workers’ compensation was pending, a trench collapsed on him in May 2004. He then received steroid injections to treat nerve damage at L5. He was reassigned when he returned to work in May 2005, and his hourly pay rate was reduced from $29 to $17.

The plaintiff’s claims were consolidated and he was awarded permanent partial disability benefits (equal to 20% loss) for the first injury and then received $388 a week based on wage differential determination for the second injury. Because the city failed to pay a wage differential benefit from May 2005 to March 2006, the arbitrator awarded him penalties and attorney fees, stating that this delay was “vexatious” and “unreasonable”. The employer appealed to the IWCC—who affirmed the decisions—and then asked for review in the Cook County Circuit Court, which confirmed the decision.

Raising three issues, the city appealed to the appellate court (The City of Chicago v. The Illinois Workers’ Compensation Commission, No. 1-09-2320WC.):

  1. Whether the commission erred in awarding benefits pursuant both to Section 8(d)(2) and Section 8(d)(1) for the same condition of ill-being;
  2. Whether the commission erred in awarding medical expenses; and
  3. Whether the commission erred in awarding penalties and attorney fees for unreasonable delay in the payment of benefits.

The city contended that the plaintiff’s injury was the same condition of ill-being even though it was based on two separate incidents. The court noted “one very significant detail … at the time of the hearing, the first injury had not resolved itself and clearly was a factor when the claimant suffered the second injury.”

The Appellate Court determined that even though the claimant had suffered two injuries, the evidence showed only once condition of ill-being—and vacated the award of 20 percent loss of the person as a whole.

Workers’ Compensation

The plaintiff/claimant in Robert Baumgardner v. Illinois Workers’ Compensation Commission, et al., injured his knee on April 8, 1996 while working for Cook County.  He was diagnosed with a torn lateral meniscus and underwent surgery.  He returned to work in October 1996 and then six months later, in April 1997, the plaintiff injured his knee again, once at home and again later that month while working.  He returned to work in May 1997, with doctor’s instructions to wear a knee brace.  His physician then restricted the plaintiff to avoid working on inclines or ditches.  The county did not accommodate the restriction and a year later, he repeatedly fell three separate times.  The County finally reassigned him to a light duty position and he received a wage differential.  In 2002, the plaintiff had to have knee replacement surgery.

The plaintiff went to a consolidated arbitration for the three separate incidents—asking each side to propose a decision.  The arbitrator awarded him 53 weeks of temporary total disability benefits based on the 1996 injury, and they awarded him an additional 53 weeks for the May 1998 injury.  The claimant was also awarded a wage differential for the duration of his disability.  Both parties asked for a review from the Illinois Workers Compensation Commission.  The IWCC affirmed the 1996 award and reduced the 1998 award to 13 weeks and 2/7th

“Because the claimant suffered multiple injuries to the same body part as a result of successive accidents and those claims were tried together,” the court wrote, “the commission properly evaluated the totality of the evidence as it related to the claimant’s overall condition of ill-being at the time of the hearing and entered a single award that encompassed the full extent of the disability resulting from both the April 1996 and the May 1998 injuries.” See Robert Baumgardner v. Illinois Workers’ Compensation Commission, et al., No. 1-10-0727WC

When Does a General Contractor Have “Control” of the Project Site

The Illinois Appellate Court recently affirmed the granting of summary judgment to a defendant in a case that could be enlightening for construction managers in Illinois. In O’Connell v. Turner, a personal injury suit was brought by plaintiff Lawrence O’Connell, a construction worker who suffered injuries on the construction site, against Turner Construction, a construction manager hired by the school district. Plaintiff alleged liability under Section 414 of the Restatement (Second) of Torts, stemming from defendant’s “significant operational and/or supervisor control over the trade contractors.”

As a rule, general contractors will not be held liable for the acts or omissions of its independent contractor. However, Section 414 creates an exception, providing that “one who entrusts work to an independent contract, but who retains the control of any part of work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” It is important for construction defendants to keep in mind that the precondition and fundamental requirement of imposing vicarious liability on defendants under Section 414 is for the defendant to have entrusted work to an independent contractor. Entrustment is a necessary finding for liability to attach under Section 414.

In the present case, the appellate court held that the question of whether the defendant exercised control at the construction site was irrelevant, since control alone does not trigger liability under Section 414. The plaintiff was employed by a subcontractor that was hired by an independent contractor, who in turn was hired directly by the school district, not the defendant. The court noted that unless the defendant actually selected the contractors or subcontractors, the defendant had not entrusted them with any work.

Defendants to a claim arising from construction site negligence should pay careful attention to Section 414(c). Any evidence that the owner, general contractor lacked authority to direct the plaintiff’s employer in the means and methods of its work, can be used to support the argument that there are not sufficient grounds to impose liability. Given the trend in recent case law, including O’Connell v. Turner, it will likely be more difficult to impose liability for construction managers who lack control on the job site, and for construction managers that do not directly hire their own contractors.

Workers’ Compensation Reform: Altering a Worker’s Ability to Recover For On the Job Injuries

The workers’ compensation system is a tradeoff. In exchange for timely payments, workers give up their common law right to sue their employer for injuries they sustained on the job. Employers, shielded by the possibility of expensive litigation, are required to insure against the possibility of job related injuries. Most employers purchase commercial insurance, but they can self-insure in some situations. The system–designed to limit an employer’s exposure to liability and therefore increase their bottom line- is being attacked.

Employers are not arguing for a repeal of the Illinois Workers Compensation Act, undoubtedly because they receive some benefit from limiting their liability. However, they do claim that Illinois’ current system places too much of the financial burden on the employer. That is why many Illinois employers, including Peoria-based Caterpillar, supported the recent Senate bill that was voted down by Democrats on April 14, 2011. Championed by Rep. Sen. Kyle McCarter of Lebanon, the bill, most notably, would have required injured workers to prove that their workplace is at least 50 percent responsible for the injury or illness. Regardless of the possible merits of the change in the law, it would have drastically changed an injured worker’s ability to be compensated for his injury.

Although the Democrats thwarted this particular bill, both sides of the aisle are looking for some kind of reform, and the Democrats have their own proposals. In fact, Gov. Pat Quinn, in addition to other proposals, has called for a 30 percent cut in rates paid to medical providers. With a similar proposal from the Republicans in the Senate, it is likely that the two sides will find some common ground before the end of the term in June. It remains to be seen what that final bill will look like, but it is evident that the rights of an injured worker in Illinois will likely change before 2011 is over.