Appellate Court Affirms Summary Judgment In Favor Of City Of Chicago And Contractors In Construction Negligence Suit

March 2016

A recent decision from the First District Appellate Court, Cabrera v. ESI Consultants, Ltd., 2015 IL App (1st) 140933, addresses several noteworthy issues which can arise in construction negligence lawsuits. The decision discusses a municipality's tort immunity, contractor liability under Restatement (Second) of Torts §414 and the proper scope of expert opinions. The Appellate Court affirmed summary judgment on behalf of all defendants.

The plaintiff was injured while working at a construction project on the Washington Street Bridge in the City of Chicago. His employer, Valdivia Contractors, was hired by the City of Chicago to perform certain work including sandblasting and painting the bridge. The plaintiff alleged the City of Chicago had a presence on the project, controlled the work, and had authority over means and methods and jobsite safety. A civil engineer for the City of Chicago, testified his duties included construction management, supervising a construction consultant and the various contractors.

The trial court granted summary judgment to the City of Chicago holding it was entitled to absolute immunity under Section 2-201 of the Illinois Tort Immunity Act which grants immunity to municipalities against liability for discretionary decisions.

First District Allows Waiver Of Workers' Compensation Lien And Denies Petition For Attorneys' Fees

March 2016

By Andrew R. Makauskas

In Cozzone v. GARDA GL Great Lakes, Inc. et al., 2016 IL App (1st) 151479, the First District presided over a very interesting case. The matter involved a settlement between the plaintiff and direct defendants and an assignment of the defendants' contribution claims against the employer.

The decedent, Anthony Cozzone, was a roofer employed by Fellows Roofing, Ltd. ("Fellows"). He tripped and fell through a skylight on a commercial rooftop in Broadview, Illinois and died the same day. He is survived by two sons. He was not married to the children's mother. The Estate filed a wrongful death and survival action against the owner and tenant of the building. The mother filed a workers' compensation claim against the employer. The Illinois Workers' Compensation Commission found the case compensable and ordered weekly benefits in the amount of $466.13 to be paid for the benefit of the sons until they reach adulthood. Fellows asserted a workers' compensation lien against the corresponding civil litigation case. The estate entered into settlement negotiations with the tenant and building owner in the civil case. A settlement was reached and as part of the settlement, the defendants assigned their contribution claims against Fellows to the estate.

The Estate proceeded to trial against Fellows and obtained a verdict with Fellows 100% at fault. After the verdict, Fellows waived the workers' compensation lien and moved to dismiss the contribution claims based upon the waiver. The Estate objected and asked that Fellows pay the full amount from its contribution liability. The Trial Court denied the Motion and granted the dismissal, finding that Fellows could waive its lien even after the unfavorable jury verdict. The Court entered judgment against Fellows for only $35,892.01, representing the difference between what had been paid in the workers' compensation case at the time of the settlement in the civil case and the amount of additional workers' compensation liability Fellows had incurred up to the end of the civil trial.

Reform: An Up to the Minute Primer (Redux) Part II

December 2015

By Francis M. Brady

The following concludes the Firm's review of all "reform" measures currently under consideration in the Illinois General Assembly.[1]

Medical

In 2011, reimbursement of certain medical charges under the existing Fee Schedule was reduced 30%. Even with that reduction, Illinois was, according to the Oregon Workers' Compensation Premium Rate Ranking Summary, still the 7th costliest state concerning workers' compensation. The Senate Republicans added language to SB0994 effectuating limitations of an additional 30% relative to reimbursement to care providers. The cuts, however, are not across the board. They impact specific services as follows: ambulatory surgical treatment centers; anesthesia services; hospital inpatient services, both standard and trauma; hospital outpatient services; and, professional services. No reductions would occur to reimbursement of emergency room services; evaluation, management, or physical medicine services.

Nature and Extent

The business community charges that the reforms of 2011, including the implementation of AMA Standards regarding impairment, simply nibble "around the edges of our tremendous cost problem here in Illinois" (Business Insurance, March 1, 2015). To rectify this imbalance, the language of the Senate Republicans in Amendment 1, SB0994 mandates that the Commission consider independent medical examinations along with treating medical records and, as well, can consider AMA Guidelines as the sole determinant of disability (820 ILCS 305/8.1(b)). To further reduce nature and extent exposures, language proposed by Senate Republicans credits an employer for past whole man recoveries secured by petitioner.

Two Arbitrators Appointed

December 2015

By Mark F. Vizza

Mr. Paul Cellini and Mr. Gary Gayle have been appointed Arbitrators by Governor Bruce Rauner.

Mr. Cellini brings 20 years of experience in workers' compensation law, having practiced in both the public and private sectors. He most recently served as staff attorney with the Illinois Workers' Compensation Commission. Mr. Cellini is a graduate of the University of Illinois and The John Marshall Law School.

Mr. Gayle, too, has long ties to Illinois Workers' Compensation. He has 35 years of experience including service as Executive Director of the Illinois Workers' Compensation Commission. Mr. Gayle is a graduate of the University of Missouri and the Chicago Kent College of Law.

Arbitrator Gayle will be assigned to the Chicago area while Arbitrator Cellini will be assigned to one of the downstate areas. Both should begin handling cases January 1, 2016 when the Arbitrator reassignments take effect.

Challenging Opioid Prescriptions

December 2015

By Jeffrey R. Gibellina

In a December 18, 2015 report, the Centers for Disease Control and Prevention (the "Centers"), announced that "since 2000, the rate of deaths from drug overdoses has increased 137%, including a 200% increase of overdose deaths involving opioids." The report defined "opioids" to "include drugs such as morphine, oxycodone, hydrocodone...fentanyl, and tramadol." Indeed, there has been a "15-year increase in overdose deaths involving prescription opioid pain relievers..."

The need to "encourage (safe) prescribing of opioid pain relievers..." is urgent according to the Centers. While promoting safer practices is laudable, there is an immediate need, particularly in Illinois Workers' Compensation, for a method of attacking the scourge more directly. Business and insurance should be aware that the Illinois Workers' Compensation Act does offer a means by which an employer can contest prescription opioids. Under Section 19(d) of the Act and Section 7110.40 of the Rules Governing Practice Before the Commission, an employer can ask the Commission to decide whether a worker, who has been prescribed opioids, is engaged in injurious practices tending to imperil or retard her recovery or, alternatively, whether the worker who refuses a detoxification program is acting unreasonably.

An Illinois employer attempted to actualize Section 19(d) and Rule 7110.40 in the case of Colleen M. Oberlander v. University of Chicago (2014). Unfortunately, the Illinois Workers' Compensation Commission (hereafter the Commission) held that petitioner did not need to "de-escalate an opioid regimen." The Commission focused on medical evidence from petitioner's primary treater reflecting that should she undertake the de-escalation, she would suffer a "severe reaction," possibly resulting in a heart attack. Another expert engaged by petitioner, testified that he thought that opioid detoxification was merely experimental and, at best, would result in intolerable pain.

Recent Illinois Appellate Court Decisions

December 2015

OLIVER V. IWCC

Petitioner's claim for Workers' Compensation benefits was denied by Respondent based on just a six-day delay in notice, along with the observations of his direct supervisor that petitioner displayed no sign of injury on the alleged loss date. The Arbitrator concluded the denial of benefits was unreasonable, and penalties were awarded. The Commission reversed the penalties award, but this decision was itself ultimately reversed by the Circuit Court.

Noting that: a) Respondent had made no investigation into petitioner's claim whatsoever; and, b) regardless, the Act itself gives petitioner 45 days to report the injury, the Appellate Court upheld the Circuit Court concluding there was no just reason to deny petitioner's claim. The Court determined Respondent had failed to discharge its burden of showing the denial was reasonable. Failing to make any kind of investigation, and then denying the matter solely for a six-day delay, was not only unreasonable but showed bad faith. As such, the Arbitrator's original award was reinstated.