NEWSLETTER - February 2007

Back to Newsletter Index...

February 2007

This month we have news of a new attorney joining our ranks, victories at the Appellate Court and the Illinois Worker’s Compensation Commission and a further update on the status of the Borrowman/ Lenart decisions, along with other case summaries.

• Firm Happenings
• Case Law Updates
  1. New Case On Mental Stress Not Favorable To Employers
  2. Supreme Court Confirms That The Time Limit For Reviewing Section 8(d)1 Awards Is Controlled By Section 19(h)
  3. Fifth District Appellate Court Determines That Two Minutes Is Too Late

---

Firm Happenings

We are pleased to announce that Brian Driscoll has joined the firm effective January 2007. Brian brings 18 years of legal experience to the firm. Brian will be taking over the Mount Vernon docket as well as assisting in the collar county venues, Belleville, Rockford and Rock Island. Welcome aboard Brian!

Tom Fitzgibbons recently obtained a victory from the Appellate Court in a matter that has already been to the State Supreme Court, back down to the Commission and may eventually return to the Supreme Court. The legal aspects of the case are contained in our Case Summaries below, but the real import of the case may be the message the Appellate Court sent to the current Commission.

In an assault case between two employees of Carson Pirie Scott, the Commission initially denied compensation to the claimant, Franklin, on the basis that both employees were the aggressors. The Commission also specifically found that the claimant’s testimony was not credible. On remand, after the Supreme Court found that the Commission had to determine which of the two was the aggressor, the newly constituted Commission panel changed its finding on the petitioner’s credibility, now finding that she was credible despite the earlier determination, by a pre-2002 panel, that she was not. Tom appealed and the Appellate Court reversed, holding that “the Commission was to arrive at its decision based upon the ‘facts found’ in its original decision. We do not believe the Commission was free to revisit its earlier factual findings which had not been set aside on review.”

This decision of the Appellate Court is important to employers in this state. As the members of both of the Commission panels have changed over the last four years, and with there now being a third panel added, the newly formed panels will not be allowed on remand to set aside prior findings of fact that favored employers.

Dan Wellner also recently notched two victories for our clients, one of them in front of one of the most liberal Arbitrators in the Chicago venue. In Ozyuk vs. Gallagher Bassett, the petitioner had a compensable accident in which she injured her left shoulder, resulting in two surgeries on that shoulder. Prior to her release from treatment following the second surgery, she claimed that she aggravated her preexisting neck condition in physical therapy, and found a physician to back up her claim. Dan obtained an expert, who found no evidence in the medical records of an injury to the cervical spine in physical therapy, but found instead a preexisting cervical spine condition that was unaffected by the work injury. Following the deposition of our expert, the petitioner switched theories and alleged that the physical therapy injured her right shoulder. Again she found an expert supporting her position. Again, Dan obtained an expert opinion denying an injury and denying any causal relationship between the right shoulder condition and the therapy.

The arbitrator found that the petitioner’s testimony concerning her condition was not credible. The physical therapy records contained no reference to a neck or right shoulder injury, the treating orthopedic surgeon records did not mention any right shoulder complaints in physical therapy and other records also showed discrepancies between the histories provided by the petitioner and her supposed right shoulder and neck injuries. Based upon these inconsistencies, the Arbitrator found that the opinions of the petitioner’s examining physician were not credible and adopted our experts’ opinions. This decision resulted in a savings of over 2 years of TTD (approximately $76,000.00) and approximately $10,000.00 in medical expenses.

In DeAngelo vs. ARAMARK Management Services, the Arbitrator found that there was no accident or causal connection between the employment and the petitioner’s alleged injuries. The petitioner began working for ARAMARK as a custodian in July of 2003, only three months after he had neck surgery. He alleged that in August and September of 2003 he injured his cervical and lumbar spines while performing repetitive lifting activities. Dan presented medical evidence which demonstrated that the petitioner’s prior cervical condition had not completely healed by the time he was hired in July of 2003.

Moreover, there was no medical evidence to support those claims. Dan showed that none of the treating medical records contained any mention of the petitioner’s employment with ARAMARK. He further obtained an expert medical opinion from an orthopedic surgeon whom the arbitrator found more credible than the petitioner’s occupational medicine doctor. The finding of no accident resulted in a savings of over $100,000.00 in medical bills, 33 weeks of TTD ($8,000.00), and an estimated PPD award of $38,000.00 to $44,000.00.

---

Case Law Update

Appellate Court remands Assault Case to Commission to determine which part was Aggressor, finding Commission's Reconsideration of the Claimant's Credibility Exceeded its Authority on Remand

As noted above in Firm Happenings, Tom Fitzgibbons recently scored a victory from the Worker's Compensation Division of the Appellate Court in Franklin v. Carson Pirie Scott. In addition to the Court's rebuke to the Commission that it should not have found facts contrary to its initial decision in the matter, the case is significant on the litigation of assault cases.

The case involves two cosmetic counter employees who got into a fight over customers and the sale of cosmetics. The petitioner alleged she was assaulted by the co-employee, Mohan. The whole fight was caught on a security video tape which was entered into evidence. The Commission originally found that both employees were aggressors and thus the petitioner not entitled to benefits. This was the first Illinois case where the “dual aggressor” theory was applied.

In its decision the Commission had found that the petitioner's testimony was “largely uncorroborated, containing numerous inconsistencies, implausible explanations and statements directly contradicted by other testimonial or documentary evidence.” The Commission also found that “the claimant's version of the initial encounter between herself and Mohan was lacking in credibility and that while testifying at arbitration hearing the claimant engaged in prevarication rendering her testimony unworthy of belief.” One Commissioner dissented and argued that the petitioner was credible and that she believed that Mohan, and not the petitioner, was the aggressor.

The case was appealed all the way to the Illinois Supreme Court, which ultimately declined to adopt the dual aggressor theory, and ruled that in Illinois the aggressor defense would only be applied to one aggressor. The Supreme Court then remanded the case to the Commission to find which employee was the sole aggressor. With the Supreme Court's rejection of the dual aggressor doctrine, employers must develop evidence that the claimant was in fact the lone aggressor when using the aggressor defense in assault cases.

By the time of the remand to the Commission, the Commission panel had two new members with only the dissenting Commissioner remaining from the original panel. This Commissioner and one of the new members of the newly comprised Commission panel then found that Mohan was the sole aggressor and therefore the petitioner was entitled to benefits. Tom appealed this decision to the Circuit Court and then the Appellate Court. The Appellate Court recently reversed that decision and remanded the case once again to the Commission.

Before the Appellate Court, Tom argued that the Commission erred in reweighing the evidence and arriving at factual determinations which contradict the findings in its original decision. In so doing, he argued, the Commission violated the mandate of the Supreme Court. The Court agreed. The decision went on to focus on the remand from the Supreme Court to the Commission, where it wrote that “when a decision of the Commission is set aside, but the facts found by the Commission are sufficient to determine the correct decision, a reviewing court may simply enter the correct decision ...” The Appellate Court wrote “we believe that implicit in the Court's statement in this regard is the direction that, on remand, the Commission was to arrive at its decision based upon the “facts found” in its original decision. We do not believe the Commission was free to revisit its earlier factual findings which had not been set aside on review.”

The Commission must now decide who the sole aggressor in the fight was based on its original interpretation of the facts and the credibility of the witnesses, rather than on the second Commission panel's revised version.

THE 2nd APPELLATE DISTRICT JOINS THE FRAY IN THE BORROWMAN DECISION, AGREEING WITH THE 1st DISTRICT IN GALLAGHER THAT WAIVER OF LIENS IN WORKER=S COMPENSATION SETTLEMENTS CANNOT BE IMPLIED

As reported in our December newsletter, the Supreme Court agreed to hear the appeal of Gallagher v. Lenart, looking to resolve the conflict between the First and Fourth Appellate Districts on the issue of whether a worker's compensation settlement that fails to mention retention of the employer's section 5(b) rights constitutes a waiver of those rights in the employee's companion civil claim. The 1st District in Gallagher criticized the Borrowman decision, and now is joined by the 2nd District.

In Harder v. Kelly, et al, issued just this month, the 2nd District reversed the trial court's denial of the employer's lien rights based on Borrowman. Just as Gallagher criticized the reasoning and legal basis of Borrowman, the 2nd District could find “no reason under the act or general contract principles why an employer should be required to include an affirmative reservation of rights in a settlement agreement when there is nothing in the agreement otherwise suggestive of an intent to waive the right to a lien under section 5(b).”

This decision has not been formally published as yet and is therefore not precedent, but the forthcoming decision by the Supreme Court in Gallagher should resolve this once and for all. It is nice to have the 2nd District in the employer's corner on this issue, though.

ISSUE OF WHETHER SETTLING DEFENDANTS SHOULD BE INCLUDED ON VERDICT FORM RESOLVED FAVORABLY FOR DEFENDANTS BY 1ST DISTRICT

An ongoing issue in civil trials given recent amendments to the Contribution Among Joint Tortfeasors Act has been the disclosure to the jury on the verdict form of Defendants who had settled with the Plaintiff prior to trial. The benefit to the non-settling Defendant in such a case is that the jury gets to consider the non-settling Defendant's conduct in comparison to the conduct of other parties not before the Court, thus allowing for the trial Defendant to have the liability divided among more parties. Conversely, when non-settling Defendants are not included on the verdict form, the jury has only one party to consider as being at fault for the Plaintiff's injuries (other than Plaintiff's comparative negligence), leaving the trial Defendant at a distinct disadvantage if its overall degree of fault was less than that of the settling Defendants.

In Ready v. United/Goedecke, the 1st District held that all settling parties should be included on the verdict form, based on the Contribution Act's inclusion of the phrase “the defendants sued by the plaintiff” in its terms regarding the assessment of the relative fault of each party. This amendment concerned limiting the liability of Defendants who were found to be less than 25% at fault for the Plaintiff's injuries to be only severally liable for the non-medical damages awarded to the Plaintiff, whereas those Defendants found to be more than 25% liable were jointly and severally liable for such damages.

In interpreting the “plain meaning” of the statute, (which has generated a number of case requiring it to interpret its “plain meaning”), the Court held that the intent of the statute's terms in this regard was to hold minimally culpable Defendants to minimal responsibility (financially) for the Plaintiff's damages. The failure of the legislation to define “the defendants sued by the plaintiff” as meaning only those Defendants still in the case at the time of trial dictated the result in this case.

In a brief but well argued concurring opinion, Justice Hoffman noted that the legislation creates two potentially unfair results as currently written: if settling Defendants are not included on the verdict form, then a catastrophically injured Plaintiff has a very good chance of obtaining a substantial award to be paid by a Defendant who may only be minimally liable but did not settle prior to trial; conversely, when settling Defendants are added to the verdict from, a culpable Defendant may benefit from the distribution of the fault by the jury to the settling defendants such that the Plaintiff may only recover a portion of the damages assessed by the jury if the amounts accepted in settlement prior to trial do not match the damages awarded based on the percentage fault of the non-settling Defendant. Justice Hoffman agreed that the plain language of the statue dictated the result in this case, and suggested that the legislature was the proper forum to remedy this issue.

Left unsaid by the Ready Court is exactly what evidence can be introduced, by either Plaintiff or Defendant, as to the culpability of the settling Defendants, who otherwise provide the trial Defendant with the helpful empty chair(s) to whom Defendant can point as the real culprit for Plaintiff's accident. As indicated, this decision is certainly helpful to Defendants as noted above, but it is likely more litigation will ensue or the Act will be amended to clarify its intentions. The Contribution Act was amended in 2003 to clarify that settling Third Party Defendant employers are not to be included on the verdict form, indicating perhaps by omission of any further clarification that the General Assembly did indeed intend the result reached by the 1st District here

Newsletter Archives:

Newsletter Index

2008 November June 2007 October February

2006 December September August July June May April March

See also more recent posts on our blog: http://inmanfitzgibbons.wordpress.com