Illinois Trucking Company sues Ohio Employer ADT in 3rd Party claim in ladder accident

6-15-08

Palmer v. Freightliner (1^st Dist., June 2008) Ohio employer, ADT was stuck with a 3rd party claim for contribution for negligence even though Ohio law prohibits 3rd party contribution actions in personal injury cases for claims against an employer where the employer provides workers compensation insurance coverage.

An Ohio security & alarm system installer, Palmer, employee for ADT was working on a 20 ft ladder leaning against a loading dock garage door at Freightliner’s Wood Dale, Illinois facility when a Freightliner employee opened the garage door. The ladder fell and Palmer crashed to the ground.

Illinois law allows an employer to be immune from direct suit by an injured employee but not free from suit brought by a primary defendant in a claim for contribution for partially causing the injury. In Ohio, an employer who complies with providing workers compensation insurance is immune from negligence suits in employee personal injury cases.

In an excellent analysis and application of the Restatement 2d of Conflicts of Law and prior Illinois Supreme Court law, the Palmer decision held that the Ohio employer could be sued for contribution for their share of negligence.

The general rule (per Section 146 of the Restatement of Conflicts) is that the local laws of the state where the injury occurred will determine the rights and liabilities of the parties in a personal injury action unless some other state “has a more significant relationship.”

Despite the fact that Palmer was an Ohio resident, an Ohio employee and paid Ohio workers compensation benefits, including a $7,500 settlement, Illinois had the “most significant relationship.” The court examined (1) place where injury occurred, (2) place where conduct causing injury occurred, (3) residence and domicile of all parties & place of business and (4) where the “relationship” of the parties was centered.

Illinois applies the principles of comparative fault to all parties in a personal injury accident. Freightliner was allowed to pursue a claim of some portion of blame on the Ohio employer, ADT.

Questions by Illinois employers on actions for indemnification, contribution or workers compensation lien recovery should be addressed by an Illinois workers compensation attorney with practical experience and knowledge in this specific area of the law.

Chicago Workers Compensation Attorneys -- http://wc-chicago.com 6-15-08

Illinois Workers Compensation -- Medicare Coordination Update

6-7-08

The Centers for Medicare & Medicaid Services (CMS) have consolidated all Medicare Secondary Payer (MSP) payment recovery for Auto, Workers Comp & Group Health plans into one Payment Recovery Center. The location provides payout information on conditional payments and coordinates recoveries. For specific Workers Compensation recovery coordination contact:

MSPRC WC
PO Box 33831
Detroit, MI 48232-5831

For Pay out and Recovery information Contact:

tel: (866) 677-7220 or (866) 677-7294 (TTY/TDD) fax: (734) 957-0998

The real news is the new MSPRC website for direct contact and a nice explanation of the MSPR form letters.

On May 20, 2008, CMS also issued a new memo indicating all future Workers' Compensation Medicare Set-Aside allocations must be calculated based only on life expectancy tables using Table 1 of the CDC Life Tables for Total Population.

Read the 5/20/08 CMS update memo online.

Questions related to Illinois workers compensation settlements and Medicare Set aside coordination should be addressed to our Chicago workers compensation attorneys.

Chicago Workers Compensation Attorneys – http://wc-chicago.com 6-7-08

Illinois Employer Assignment of Work Comp Lien- must pay 25% Attorneys Fees

6-7-08

Normally an Illinois employer that pays workers compensation benefits is entitled to seek repayment of all amounts paid in any 3^rd party personal injury action brought by the worker against a responsible 3^rd party. In construction injury cases, that responsible 3^rd party is often the general contractor or another contractor on the job site that are blamed for causing the workers’ injury.

In any lien reimbursement action where the employer seeks repayment from the proceeds of the personal injury law suit, Illinois law requires the employer to pay the injured workers attorney 25% of any recovery or reimbursement as attorneys fees. Therefore Illinois employers usually only obtain 75% reimbursement of amounts paid in workers compensation benefits. Meanwhile, the primary defendants will get to set off 100% of the workers compensation payments as a credit or set-off in any award against them to prevent a double recovery by the injured worker.

Where the employer was also negligent or partially responsible for causing the injury, a law suit for contribution is usually brought by the main defendants against the employer. To the extent that an employer is partially responsible for the workers’ injuries, the right to reimbursement will be reduced by the amount or % of negligence of the employer.

Section 5(b) of the Illinois Workers Compensation Act states:

“Out of any reimbursement received... the employer shall pay his pro rata share of costs… and expenses… and where the services of an attorney… of the employee… substantially contributed to procurement… of the proceeds out of which the employer is reimbursed, then, … the employer shall pay such attorney 25% of the gross… reimbursement.” 820 ILCS 305/5(b) (West 2006)

In a recent case, Evans v Doherty ( 1ts Dist., 4/25/08) the employer in a construction injury setting attempted to shirk payment of attorneys fees by giving an “assignment” of the employers workers compensation lien to the primary defendants. The employer had paid out $152,000 in workers compensation benefits and sold their right to reimbursement to Doherty and other primary defendants for the sum of $90,000. The employer in an argument too cute for the court said they received no reimbursement of their workers compensation lien but merely sold their rights to repayment in an assignment of lien. The Court said it was a distinction without a difference and ordered the employer to pay the 25% attorneys fees on the $90,000 they received.

Questions on Illinois workers compensation lien recovery and reimbursement should be addressed by an Illinois workers compensation attorney with practical experience and knowledge in this frequently changing area.

Chicago Workers Compensation Attorneys --WC-Chicago.com 6-07-08

Illinois Borrowing Employer of Temporary Laborer; Exclusive Remedy

5-11-08

Chavez v. Transload, (1stDist March 2008 ) again reaffirms that a borrowing employer in Illinois enjoys immunity from negligence suit. A temporary laborer employed by a temporary agency was loaned to a company that unloaded and stored steel for customers. Temporary worker, Chavez, was hit by an overhead crane while off loading a rail car and sued for premises liability and negligence.

The Court dismissed the case under Section 5(a) the "exclusive remedy " provisions of the Illinois Workers Compensation Act barring negligence suits against an employer for line of duty job injuries.
The most important among several factors in finding a "borrowed employment" relationship are (1) the borrowing employer's right to control the work performed and, (2) whether the employee gave an express or implied consent to a borrowed employment relationship.

Here the right to discharge, the right to set the work schedule, the right to control the work and the workers consent to the job assignment, all lead to dismissal of the negligence suit. Note, the exclusive remedy defense rule may not apply where there is a joint venture between the companies instead of a borrowed employment relationship. At the time of this post, that issue is currently pending decision before the Illinois Supreme Court.

Questions on the exclusive remedy defense in loaned borrowed employment relationships often arise in the construction industry where employees of one subcontractor may be under the direction and control of another contractor. Court decisions in this area are often fact specific. A true borrowing employer shares the exclusive remedy defense from any negligence suits by the injured employee. However a borrowing employer may have liability for workers compensation claims brought by the injured worker in the absence of a specific written agreement with the loaning employer.

Questions in this heavily contested area can be addressed by our Chicago workers compensation attorneys with practical experience with the exclusive remedy defense and borrowed employee relationships.


Chicago Workers Compensation Attorneys --- http://wc-chicago.com 5-11-08

Illinois Construction Workers Employee Classification Act

5-04-08

Effective January 1, 2008, new laws apply to the Construction industry to guarantee the proper classification of Construction Workers. Workers performing services for construction contractors on or after January 1, 2008 are presumed to be employees of the contractor unless they meet the exceptions specified in Section 10 of the Act. If a contractor chooses to misclassify a worker as an independent contractor in violation of the new law, the State of Illinois can assess civil penalties (money, stop work orders) or other remedies. The Department will notify other State agencies such as the Department of Employment Security (unemployment taxes), the Department of Revenue (income taxes for State & Fed) and the Workers’ Compensation Commission (Work comp insurance compliance penalties for no insurance) who are then required to review and check the contractor’s compliance with each of their respective laws. www.state.il.us/agency/idol/laws/Law185.htm

Employee Classification Information Contact #: (217) 782-1710

This new law is certain to give rise to litigation in construction negligence cases and in workers compensation cases for construction site injuries. For a current update on the practical effect of the new law and new cases interpreting the application of this new law, contact our Chicago workers compensation attorneys with any questions or seek out an experienced Illinois attorney specializing in construction litigation.

Chicago Workers Compensation Attorneys --- http://wc-chicago.com 5-04-08

Illinois Work Comp Injury Rates Fall 53% from 1991 to 2003

4-29-08

The Illinois Workers Compensation Commission tracks injury rates for Illinois employers and provides break downs of injuries by specific body parts involved. Back injuries are fairly common in most occupations and represent a high cost for both injured workers in future lost earnings and Illinois employers in workers compensation claim payments.

Illinois employers and workers have proved to have an increased safety record. According to the Illinois Workers Compensation Commission, the overall worker-injury rate in Illinois decreased by 53% between 1991 and 2003. The most recent Illinois Workers’ Compensation report shows the number of cases filed have dropped 20% from fiscal year 2001 of 71,038 claims filed statewide to fiscal year 2006 of 56,911 claims filed. Illinois now maintains the 10th lowest injury rate in the country.

Among the 50 states and the District of Columbia, Illinois is ranked:

10th lowest in w.c. injury rate;

25th lowest in w.c. benefit cost rates (w.c. benefits divided by payroll);

26th lowest in w.c. medical costs per claim;

30th lowest in w.c. insurance premium rates;

30th lowest in w.c. indemnity costs per claim

These figures are directly quoted from the Illinois Workers Compensation Commission 2006 Annual Report.

Chicago Workers Compensation Attorneys --http://wc-chicago.com 4-29-08