Stormy Weather For Parking Lot Falls

Stormy Weather for Parking Lot Falls

April 2019

By: Charles M. Maring, II

Employee accidents in parking lots on the employers' premises can present a "slippery" analysis in determining compensability. A recent decision from the Court of Appeals, Cher Smith v. IWCC et al., suggests a new standard for determining compensability in these cases.

Before discussing the case facts, we should point out a procedural issue. The Smith case was decided under Rule 23 meaning it will not be published and is not controlling on any future case. That could change but as of right now, publication is not expected.

The Hand That Feeds Us

“The Hand That Feeds Us”

April 2019

By: Steven L. Miller

The Illinois Appellate Court recently addressed the issue of whether an employee’s repetitive movement while on the job constituted an “accident” as defined by the Illinois Workers’ Compensation Act.

The petitioner, best described as a “waitress/trainer/manager” was, on a busy day at a restaurant chain, keeping the dining room clean and moving quickly to keep up with the flow of customers. Although she was a manager, she started bussing tables herself and carrying tubs of dirty dishes out of the dining room to help keep things tidy. She testified that she was “busy as all get out,” which Merriam-Webster defines as “to the utmost conceivable degree.” While swiftly wiping down a table, she felt and heard a loud “pop” in her right hand. The petitioner ultimately was off of work for over 2 1/2 years and underwent five surgeries to her hand/thumb. After deciding to forego a recommended thumb amputation, she received permanent restrictions.

The Contribution Act Allows Contribution between Two Principals Vicariously Liable for the Negligence of a Common Agent

March 2019

By: Courtney Morso Driscoll

The Illinois Supreme Court recently held one principal could seek contribution from another principal, both of whom were held vicariously liable due to the acts of the same agent. In Sperl v. Henry, 2018 IL 123132 (IL), C.H. Robinson Company (“CHR”) and Toad L. Dragonfly Express, Inc. (“Dragonfly”) were both found vicariously liable due to the acts of DeAn Henry. CHR was a logistics company that contracted with licensed carriers to transport goods to its customers, one of which was Jewel Food Stores (“Jewel”). Henry leased a semi-tractor to Dragonfly, a federally licensed motor carrier. Through Dragonfly, Henry agreed to deliver goods for CHR to Jewel.

In the course of her delivery, Henry ran over multiple vehicles, killing plaintiffs, Joseph Sperl and Thomas Sanders, and seriously injuring plaintiff William Taluc. As a result of this accident, suit was filed against Henry, CHR, and Dragonfly for wrongful death, survival, and personal injuries.

Henry admitted negligence and liability. Dragonfly admitted liability and “united” negligence with Henry. CHR denied liability and filed a contribution action against Henry and Dragonfly. At trial, the jury found CHR was vicariously liable for Henry’s action because Henry was an agent of CHR. The jury awarded the plaintiff’s $23,775,000.00, finding CHR, Dragonfly, and Henry were jointly and severely liable for the damages.

Expert Testimony Not Necessary For Use Of Post-Accident Photographs

March 2019

Peach v. McGovern, 2019 IL 123156 (January 2019)

In this case, the Supreme Court of the State of Illinois finally put to rest whether or not expert testimony is required when using photographs of vehicle damage to argue no connection between an accident and claimed injuries. Plaintiff, Kevin Peach, was stopped at a stop sign in his Nissan pickup truck when he was rear-ended by defendant McGovern’s vehicle. Defendant testified she spaced out and let her foot slip off the brake; her car rolled forward and tapped his truck. She testified she never pressed the gas pedal once she had stopped.

Post-accident photographs showed that plaintiff’s back bumper was dented and the defendant’s front end was cracked, however, it was never determined if the accident caused the crack. Both parties testified photographs were accurate representations of the conditions of their vehicles immediately after the accident.

Employee Barred from Untimely Attempt to Intervene in Employer’s Subrogation Suit

Employee Barred from Untimely Attempt to Intervene in Employer's Subrogation Suit

March 2019

By: Jeffrey F. Clement

In A&R Janitorial v. Pepper Constr. Co., 2018 IL 123220, the Supreme Court of Illinois was faced with the unique circumstance of an employee attempting to intervene in a subrogation lawsuit brought by her employer after the statute of limitations had expired for the employee to institute her own lawsuit. The Supreme Court of Illinois held that the employee could not intervene in the employer's lawsuit based on the doctrine of res judicata.

In addition to seeking workers' compensation benefits, an employee may file his or her own personal injury action against a third-party tortfeasor in order to recover damages for a work injury. Under Section 5(b) of the Illinois Workers' Compensation Act (the "Act"), the employer is entitled to reimbursement of its workers' compensation benefits out of the proceeds of any settlement or judgment obtained by the employee in that third party suit, less the payment of a 25% attorney's fee and pro rata share of costs. 820 ILCS 305/5(b). In addition, the employer has a right to intervene in the employee's action in order to protect its workers' compensation lien in all court orders entered after hearing and judgment. 820 ILCS 305/5(b). In most instances, the employee will timely file a lawsuit against the third-party and the employer will assert its lien rights by intervening in said action.

What About My Credit?

January 2019

By: Francis M. Brady and Farrah L. Hagan

Some years back, the Appellate Court taught an anatomy lesson. The shoulder, it concluded in the case of Will County Forest Preserve v IWCC, is not part of the worker’s arm, but of her body as a whole. At first blush, that holding’s effect on the issue of credit seems to be for- ward looking: since shoulder injuries were reclassified from specific loss awards to recoveries under the whole person, they are no longer available to offset future accidents.

But while Will County clearly has that impact on damages paid after its date, less clear is how it operates on compensation recovered for upper extremity injuries before its decision. Specifically, can a Respondent use the prior settlement or award to reduce the value of a claim for the same arm the worker brings after Will County? Take, for example, a situation involving a worker diagnosed with SLAP lesion and tears of the labrum and rotator cuff due to a post-Will County accident. The worker’s attorney insists the case is worth full value. Investigation, however, reveals the worker got 25% loss of use of the arm in a settlement before Will County. Does that prior recovery afford leverage to negotiate the worker’s lawyer off his full value demand?