Ron Rascia Appointed Acting Chairman

December 2014

By Francis M. Brady

Governor Quinn has appointed Ronald A. Rascia Acting Chairman of the Illinois Workers' Compensation Commission, effective today. Chairman Rascia has been serving the Commission as General Counsel and Secretary.

Prior to joining the Commission in 2011, Chairman Rascia worked for nine years in the Office of the Illinois Attorney General as a supervising attorney in the General Law Bureau, defending State agencies in state and federal courts. As an attorney in the private sector, he served as General Counsel to Northwestern Golf Company and Platinum Financial Group. His tenure as Chairman was not specified beyond his "acting" status.

Former Chairman Michael Latz resigned on November 30th. Brady, Connolly & Masuda, P.C. joins the Commission in thanking Mr. Latz for his service and wishes him the best in his future endeavors.

New Legislation in Illinois: Employers to Provide Reasonable Accommodations for Medical and Common Conditions Related to Pregnancy

November 2014

By Francis M. Brady

The Pregnancy Discrimination Act of 1978 and the Illinois Human Rights Act have long prohibited discrimination against pregnant women in the workplace. Recent amendments to the Illinois Human Rights Act, 775 ILCS 5/2-102, which take effect on January 1, 2015, will provide additional rights to employees in Illinois beyond protection from discrimination based on pregnancy. Under the amended statute, employers in Illinois will be required to provide reasonable accommodations for any medical or common condition related to pregnancy or childbirth if requested by an employee. The amended statute provides a non-exclusive list of the types of reasonable accommodations employers may be required to provide. For example, reasonable accommodations may include: breaks for periodic rest; private non-bathroom space for breastfeeding or expressing breast milk; seating; assistance with manual labor; modified work schedule; and acquisition or modification of equipment.

The employer may request documentation from the employee's healthcare provider concerning the need for the requested reasonable accommodation to the same extent documentation is requested for conditions related to disability, so long as the employer's request for documentation is job related and consistent with business necessity. It is the obligation of the employee requesting a reasonable accommodation to supply this documentation to the employer.

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Supreme Court Clarifies Distraction Rule

November 2014

By Andrew R. Makauskas

Bruns v. The City of Centralia, 2014 IL 116998, involved a defective sidewalk condition that was "open and obvious" and an argument by the Plaintiff that the distraction exception to the open and obvious rule applied. The plaintiff, Virginia Bruns, 79 years old at the time of the incident, parked her vehicle in front of her eye clinic in Centralia, Illinois. While walking toward the clinic, she stubbed her toe on a crack in the sidewalk, causing her to fall and sustain injuries. At the time of the fall, the plaintiff was looking "toward the door and the steps" of the clinic. She was previously aware of the defect in the sidewalk, which she noticed every time she went to the clinic. She testified that she had been to the eye clinic nine times during the preceding three months.

The defect had developed because roots from a nearby tree had caused the sidewalk to crack and become uneven. In 2009, an employee of the eye clinic had contacted the City of Centralia about the defect and offered to remove the tree at the clinic's expense. The City would not authorize removal because of the 100-year-old tree's historic significance. Again, in 2009, a clinic employee contacted the City after learning that someone had tripped and fallen on the sidewalk.

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Appellate Court Affirms Dismissal of School District Pursuant to the Tort Immunity Act

September 2014

In Carlos Malinski v. Grayslake Community High School District 127, 12 L 272, the plaintiff was a student at Grayslake North High School. During school hours and on school property, he was verbally and physically abused, including being punched and pushed. The plaintiff was attacked specifically on November 16, 2009 and had informed school officials on numerous occasions about being bullied by other students.

The plaintiff had several email exchanges with Dean Athena Toliopoulos, stating he was in danger due to bullying and he feared the violence against him would escalate if the problem was not addressed. The plaintiff also had continuous contact with Joseph Volante, a school counselor. He related the bullying events to Mr. Volante and stated they would not stop unless some action was taken.

Matters came to a head on November 6, 2009 when plaintiff, in an email to Mr. Volante, advised him the bullying was getting worse and he wanted to commit suicide. On November 12, 2009, the plaintiff met with school administrators and told them other students were subjecting him to bullying.

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First Dirstrict Upholds Summary Judgment in Favor of Property Owner on Construction Negligence and Premises Liability Claims

September 2014

By Molly P. Connors

In a recent case, Lee v. Six Flags Theme Park, Inc., 2014 IL App (1st) 130771, the First District Appellate Court ruled Six Flags entitled to summary judgment against claims of construction negligence and premises liability claims. The plaintiff was the wife of a heavy equipment mechanic who fell to his death while dismantling the "Splash Water Falls" ride. The decedent was employed by Campanella & Sons ("Campanella"), which Six Flags hired to remove structural steel from the ride.

In analyzing the construction negligence claim, the court first considered whether Six Flags retained the requisite amount of control to be vicariously liable under section 414 of the Restatement (Second) of Torts ("section 414"). The court stated there were three types of control: contractual, supervisory, and operational.

Regarding contractual control, the court found the contract between Campanella and Six Flags required Campanella "to provide and pay for all labor, materials, equipment, and other facilities and services necessary for the proper execution and completion of the work." The contract also made Campanella solely responsible for the means, methods, techniques, procedures and for coordinating the work. The court recognized the contract required Campanella to follow Six Flags' safety guidelines and other safety requirements and gave Six Flags the right to inspect the project for unsafe conditions. However, the court stated implementing a safety program and retaining the right to inspect work do not constitute retained control under section 414. Additionally, the court noted the plaintiff failed to show how any of Six Flags' safety guidelines or requirements affected the means and methods of Campanella's work.

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BCM Presents to Arbitrators and Commissioners

July 2014

By John P. Connolly

At the invitation of Commissioner Michael Latz, I participated in the annual continuing education of the Illinois Workers' Compensation Commissioners, Arbitrators and Staff. The Chairman requested that I address the critical topic of the impact of workers' compensation costs in a depressed economy from an employer's perspective.

Detailed for the Commissioners and Arbitrators were the adverse exposures represented by wage differential and odd lot permanent total claims and their influence on businesses already here or thinking of coming to Illinois. Chairman Latz's invitation provided a welcome opportunity to apprise the decision makers of the outlook of the insurance industry and business community.

The Firm is proud of its efforts to educate stakeholders in the workers' compensation system. We welcome the opportunity to share our insights on areas of interests in recent case decisions. Topics that have recently been addressed by BCM lawyers include:

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