Articles Posted in Workers Compensation

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A tire company will not face a lawsuit involving the wrongful death of one of its employees who was killed in a truck crash. U.S. District Judge John Z. Lee wrote the opinion dismissing a wrongful-death lawsuit and survival claims against Pomp’s Tire Service Inc. on behalf of the Estate of Dustin Webster.

Federal District Court held that the Illinois Workers’ Compensation Act bars the claims that the Estate of Webster brought against his employer. The original lawsuit by the estate was filed in LaSalle County, Ill., under Illinois law but was removed to the U.S. District Court in Chicago under diversity jurisdiction.

Webster was killed in November 2017 when the truck he was driving for Pomp’s collided with another truck in LaSalle County.

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Perry Odom was seriously injured when a semi-trailer collapsed on him at his job.

His employer was Penske Logistics. However, this employer did not own the trailer; his employer’s sole shareholder, Penske Truck Leasing, was the owner.

Odom and his wife brought a lawsuit against Penske Truck Leasing through a personal injury action filed in the U.S. Federal District Court. The district court judge dismissed the Odoms’ complaint, reasoning that under state law, the Workers’ Compensation Act applied to shield the employer’s stockholders from employee claims arising out of a workplace injury.

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Anthony Cozzone was employed by Fellows Roofing when he was killed in a work accident. The Cozzone estate filed a lawsuit against a third party who settled with the Cozzone family for $745,000. The attorney representing the family received attorney fees of 33% or $248,333. In the meantime, a jury in a contribution case decided that Fellows Roofing was 100% responsible for the accident that killed Cozzone. Fellows Roofing waived its statutory workers’ compensation lien under Section 5(b) and requested that the trial judge dismiss the contribution case.

Fellows had already paid $117,539 in benefits for Cozzone’s 4-year-old and 2-year-old sons based on an order from the Illinois Workers’ Compensation Commission that required the employer to pay $466 a week until the children turned 18 (or 25 if they continued to be full-time students). The $745,000 settlement was paid by the owner and tenant of the building where the fatal incident took place.

As part of the settlement, the owner of the building and tenant assigned to the family of Cozzone the rights they had against Fellows under the Illinois Joint Tortfeasor Contribution Act.

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Harry DeSchene, a 53-year-old worker for Pavement Recycling, was seriously injured on a jobsite. He was walking behind a water truck to take a work-related phone call when a truck driver of Emmett’s Excavation backed his truck into him. He was run over at his midsection. He suffered a pelvic fracture, a dislocated right elbow and other internal injuries.

DeSchene’s medical expenses were $400,000. He is now totally disabled and unable to return to work.

DeSchene and his wife filed a lawsuit against Emmett’s Excavation claiming that its employee was negligent by choosing not to walk around his truck to clear the area before backing up. In other words, it was the truck driver’s duty to make sure no one was near the rear end of his truck before he backed it up. Emmett’s argued that DeSchene acted negligently himself by engaging in a conversation on his phone behind the Emmett’s truck.

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James Brooks was severely injured in a work accident in which he lost his left hand, wrist and forearm. Brooks was an assembly-line operator for Prairie Packaging Inc.  The on-the-job incident resulted in the filing of a worker’s compensation claim in 1999, the year of this accident. In addition, Brooks sought recovery for a permanent and total disability because of the loss of his limb. 

Prairie Packaging kept Brooks employed despite his inability to work, treating him as a disabled employee on company-approved leave of absence.  In the meantime, Brooks continued to receive healthcare coverage under the company’s employee-benefits plan.

Brooks’s medical costs were paid by the employer-placed health insurance and supplemented by payments through the worker’s compensation action. 

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The Illinois Supreme Court has ruled that the mailbox rule applies when filing a notice of appeal. That means that if an appellant seeks an appeal to a higher court, the notice of appeal time is satisfied as long as the notice is mailed to the Clerk of the Circuit Court before the 30-day deadline expires. That is the case no matter when the notice of appeal is actually received and stamped as filed. The appellate court has also decided that the same principles of the mailbox rule apply to filing initial complaints or seeking post-judgment relief under §2-1401 of the Illinois Code of Civil Procedure.

The question for the Illinois Supreme Court was whether the mailbox rule applied to Mark Gruszeczka’s request for judicial review of a ruling by the Workers’ Compensation Commission.

Gruszeczka alleged that he was injured while working for Alliance Contractors. He claimed  he was entitled to benefits under the Illinois Workers’ Compensation Act. An arbitrator ruled against him, and there was no dispute that the mailbox rule applied when he asked the commission to review that decision.

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The Illinois Appellate Court has affirmed a decision by a Cook County circuit court judge that allowed an injured worker to file a claim for a different injury to her right leg from the same conduct. The two workers’ compensation claims were consolidated prior to the arbitration in the Industrial Commission of Illinois. The petitioner/worker, Bessie Carnes, who was injured while in the scope of her employment, underwent surgery and physical therapy in April 1998 and was off work until May of that year.

Her employer, Modern Drop Forge, paid for her surgery and physical therapy through its group health plan covering nonoccupational disabilities.

In October 1999, Carnes first filed an application for adjustment of claim in the Illinois Industrial Commission alleging that the injury dating from September 1998, which she amended in August 2002, to have the current accident date of May 1996. At arbitration, Carnes’s employer moved to dismiss the claim as being untimely filed arguing that she had 3 years in which to file a claim from the date of injury.

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While a personal injury claim is subject to a jury’s decision, Illinois workers’ compensation claims are decided by the Illinois Workers’ Compensation Commission. Rather than undergoing a jury trial, workers’ compensation cases undergo an arbitration process in which both parties present their case to the arbitrator, who then determines an appropriate award. And because the Illinois workers’ compensation damages are clearly laid out in the Illinois Workers’ Compensation Act, there are generally few surprises when it comes to workers’ compensation cases.

However, disputes can arise when a company does not honor the terms set out in the arbitration agreement. The Illinois Appellate Court recently reviewed an Illinois workers’ compensation lawsuit involving a dispute over payment of attorney fees and costs. In Patel v. Home Depot USA, Inc., 2012 IL App. (1st) 103217, the plaintiff brought a claim against its employer after it stopped paying his workers’ compensation benefits. A Circuit Court judge had entered a decision in favor of the plaintiff and ordered the defendant company to pay the plaintiff’s attorney fees, costs, and interests.

On two separate occasions, the plaintiff Naresh Patel was injured while working at the Home Depot. As a result of these injuries, Home Depot was paying temporary total disability (TTD) to Patel. However, at least twice Home Depot suddenly stopped those payments to Patel without providing any written notice or warning. And while Patel was able to reinstate the TTD payments, doing so required him to hire an attorney and an arbitrator.

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An Illinois District judge denied the U.S. government’s motion for summary judgment on the basis that the government had failed to establish that the plaintiff’s claim was not valid in James D. Fowler v. The United States of America, 08-CV-2785. The U.S. government had attempted to prove that the plaintiff was barred from receiving compensation from the post office because he had already received workers’ compensation directly from his employer. However, the district court disagreed with the U.S.’s classification of the plaintiff as a “borrowed employee,” thereby denying its motion for summary judgment.

The claims in Fowler arose out of an injury that James Fowler sustained at a while delivering mail to a Libertyville Post Office. Fowler was an employee of Eagle Express, a company which regularly contracted with the U.S. Postal Service to move mail between its various facilities. Under these “highway contract routes” (HCR) agreements, Eagle Express was responsible for covering all of the costs and duties associated with delivering mail on its required routes, including the payment and insuring of Eagle Express employees.

So even though Fowler was injured at the Libertyville Post Office while engaged in work for the U.S. Postal Service, his workers’ compensation claim was covered by Eagle Express. However, he sought to recovery additional damages from the U.S. Post Office based on the negligence of its employees in causing his injury based on the Federal Tort Claims Act. The FTCA allows parties to sue the U.S. for personal injury “caused by the negligent or wrongful act or omission” of any federal government employee “while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

However, the U.S. argued that it was not liable for Fowler’s injuries because he was a borrowed employee. Because the Illinois Workers’ Compensation Act is an exclusive remedy, an employee’s employer and any borrowing employer are immune from tort liability arising from an injury. Jorden v. U.S., Dist. Court, ND Illinois 2011. U.S. argued that just as Fowler was barred from pursuing a lawsuit against Eagle Express because he had already recovered workers’ compensation, so was Fowler barred from suing the U.S. Post Services based on his status as a borrowed employee.

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An Illinois employee who was involved in a car accident during the course of his employment sought to recoup payments from both his employer’s workers’ compensation policy and its car insurance policy. When the insurance company denied his claims, the employee filed a lawsuit in order to recoup those costs. And while the Illinois Appellate Court allowed some of the plaintiff’s claims, it denied others in Burcham v. West Bend Mutual Insurance Co., 2011 IL App (2d) 101035.

In 2007, the plaintiff, Curtis Burcham, was driving a truck for his employer, P&M Mercury Mechanical Corporation (P&M), when he was struck by an uninsured motorist. Burcham sustained multiple injuries from the truck accident and had to undergo several surgeries. Because the accident occurred while Burcham was working, his employer, P&M, paid for his medical expenses and lost wages out of its workers’ compensation policy. To date, P&M has paid $490,000 for medical expenses, more than $100,000 for temporary-total incapacity, and continues to pay $925 per week based on Burcham’s 2/3 weekly wage.

P&M also had an uninsured and underinsured motorist policy through West Bend Mutual Insurance Company. Since the other driver involved in Burcham’s truck accident was not insured, he sought to receive additional payments from West Bend under P&M’s truck insurance policy. However, West Bend denied the claim, citing a provision in its policy that it “will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any worker’s compensation, disability benefits or similar law.” West Bend’s position was that since Burcham was already receiving workers’ compensation payments for the truck accident that he was not entitled to any money from West Bend’s uninsured motorist policy.

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