A Resource for Workers' Compensation Professionals in Illinois

Editor’s Comment: We truly feel this exemplifies a situation where the Plaintiff bar is seeking unlimited liability for injuries that can be traced back to business meetings. It appears Dramshop Act caps have been pulled off accidents/injuries to third parties that follow company lunches, parties and other outings. When alcohol is flowing, employers must establish attendance and participation by your workers at company events was voluntary and employee participation was not “in the course and scope of employment”. Otherwise, an employer may be found globally liable for the tortious actions of an intoxicated employee under the theory of respondeat superior.

We caution one other method to end such liability is easy—get an Alcohawk© or similar personal breathalyzer and don’t let anyone drive drunk. Grab some straws and test everyone before they leave. Do everyone a favor, if they are over the legal limit, grab their keys and put them in a cab or limo. We wish every restaurant and bar in Illinois would have the brains to get a personal breathalyzer with lots of straws to protect their patrons from the skyrocketing liability of driving drunk.

With a new ruling in Hicks v. Korean Airlines Co., the Appellate Court explained the Dramshop Act is not the exclusive remedy for alcohol-related incidents and the purveyor of alcohol is not the only potential liable party for the later tortious conduct of an intoxicated customer. In light of this decision, we recommend a memo be issued from management prior to any such social event to protect against this new theory of liability, which could only be conceived by the Plaintiff’s Bar. In the alternative, you may want to consider using our KC&A Employee Sign-in Sheet that covers the same concepts.

In this recent ruling, our Illinois Appellate Court further developed a growing area of tort law, and in doing so, created liability exposure far in excess of the caps established under the Illinois Dramshop Act. Tracy Kim, an employee of Korean Air, struck and killed another driver (Simmons) while intoxicated after a company dinner party. The complaint alleged Korean Air was liable for Kim’s negligent and intoxicated driving, because Kim was acting within the scope of her employment with Korean Air. Another count of the complaint alleged Korean Air was liable under the Dramshop Act for supplying and serving Kim alcohol. However, Korean Air succeeded on a motion for summary judgment on the Dramshop count, as there were insufficient facts to find Korean Air acted under Dramshop (the employer was not serving the alcohol themselves).

However, the Appellate Court reversed the finding of summary judgment on the negligence count, finding the theory of liability against Korean Air on the negligence count was outside the scope of the Dramshop Act (which would otherwise control all claims related to the service of alcohol). The Court explained, with extensive comparison and case-law citation, liability for alcohol-related negligence can attach to a third party under ordinary negligence/tort law, regardless of who actually provided the alcohol. Since the Plaintiff maintained a genuine issue of material fact existed as to whether Kim was acting within the scope of her employment while at the dinner party, the claim survived summary judgment. Critics will certainly claim this “end around” of the Dramshop Act effectively ends the long-standing “exclusive remedy” of the Dramshop Act for alcohol-related negligence actions.

This decision reflects the development of what can be described as a “Good Samaritan” rule of sorts, which compels an affirmative duty for those who may exercise control, direction, or even care for a person who becomes intoxicated. For example, the Court cited cases where liability for negligence may attach when a “Good Samaritan” begins to care for a heavily intoxicated individual, but then abandons the individual to their detriment. In another example, a bar owner cannot remove a patron from an establishment for vomiting (due to alcohol), pull up the drunkard’s car, dump him in, allowing him to drive off, and later claim they didn’t know he was drunk when he drove away. Be warned, such affirmative acts can trigger your obligation (read liability) if you fail to follow through with due care to prevent a reasonably foreseeable harm. Again, we must stress these theories of liability are not under the umbrella of the Dramshop Act, but rather, independent theories of negligence. Therefore, there is no cap on a jury award and potential limitless liability in these claims.

The Court explained, although the Dramshop Act broadly preempts claims arising from a defendant’s provision of alcohol, the Dramshop Act does not preempt claims based on legal theories independent from the such provision of alcohol. Where, as here, the Appellate Court ruled a genuine issue of material fact exists regarding whether Kim’s actions were within the scope of her employment, the Dramshop Act does not preempt a claim that Korean Air is vicariously liable under the theory of respondeat superior, as Kim’s alleged negligence is independent of which entity supplied alcohol to her. Thus, the judgment of the Circuit Court of Cook County was reversed and remanded for further proceedings.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

{ 0 comments }

By Elizabeth Alberico

In Skzubel v. Illinois Workers’ Compensation Com’n 927 N.E.2d 1247 Ill.App. 1 Dist.,2010. Four M, newspaper distributor for the Chicago Sun-Times, claimed to use independent contractors to deliver newspapers, prepare and distribute bills and collect payments from subscribers. Four M would enter into a contract with the delivery drivers that specifically stated that the driver was not an employee. Four M provided the drivers with a specific route, which could be amended at anytime, without notice by the company. The driver used his own vehicle. The rate per paper, per driver was set in the contract, but could be changed at anytime without notice by Four M. Drivers had to give seven days notice to cancel the agreement, but Four M could terminate the agreement with the drivers at anytime. Each morning before deliveries were made, Four M would provide the drivers with special instructions.

Petitioner was hired by verbal agreement as a driver for Four M. Because of Petitioner’s pending immigration status, her husband signed the contract with Four M and the paychecks were issued in his name. Petitioner worked exclusively for Four M for two years and never held herself out as an independent contractor.

The arbitrator found that no employee-employer relationship existed, but never addressed the issue of whether Petitioner was an independent contractor. He reasoned that because Petitioner’s husband, not Petitioner, signed the contract for employment and his name appeared on the checks, there was no contractual relationship between the employer and Petitioner.

A majority of the Commission agreed with the arbitrator, with one commissioner dissenting. The dissenting commissioner noted that the employer waived the right to claim that Petitioner was an independent contractor because of their dishonest actions in avoiding her immigration status. He examined all factors and focused on the degree of control the employer exercised over Petitioner as well as whether the job performed by Petitioner was essential to the business of the employer. The commissioner found that these components were enough to support an employee-employer relationship. The trial court affirmed the decision of the Commission.

The issue before the court was whether Petitioner was an employee or independent contractor. The Appellate Court examined a multitude of factors to determine whether an employee-employer relationship existed.

The Appellate Court began by examining the employer’s right to controlthe Petitioner. This well settled principle has time and again been considered the most important factor in determining whether an employee is an independent contractor. Four M had the right to terminate Petitioner without notice, change the rate per paper without notice, provided each driver with special instructions every morning, and could amend a route without notice to the driver.

Another important factor the court examined was the nature of the work in relation to the business of the employer.  The court found that the more essential the job duties are to the success and operations of the business, the more likely it is that an employee-employer relationship exists. In this case, the business of Four M was delivering newspapers. Four M relied on their drivers to carryout the operations of the business. Therefore, Petitioner’s job performance was essential to the success of Four M.

The court considered the label of employee versus independent contractor, in an employment agreement, to hold very little weight in the analysis of whether an employee-employer relationship exists.

The court found that the conclusion of the trial court was against the manifest weight, as an examination of the facts clearly led to the conclusion that Petitioner was an employee. The court agreed with the dissenting commissioner and found that the Petitioner was an employee of Four M.

The court placed the most emphasis on the amount of control the employer had over the Petitioner as well as the work Petitioner performed in relation to the type of business the employer engaged in.

Practice Tip

When an employer controls the actions of an employee and the work performed by the employee is crucial to the operation of the employer’s business, an employee-employer relationship exists.

Post Provided by Bryce Downey & Lenkov LLC. Bryce Downey & Lenkov is a firm of experienced business counselors and accomplished trial lawyers who deliver service, success and satisfaction. They exceed clients’ expectations while providing the highest caliber of service in a wide range of practice areas. With offices in Chicago, Oak Brook, Merrillville, IN, Memphis and Atlanta and attorneys licensed in multiple states, Bryce Downey & Lenkovis able to serve its clients’ needs with a regional concentration while maintaining a national practice.

{ 0 comments }

By Francesca Larsen

In Lenny Szarek, Inc. v. The Workers’ Compensation Commission, 396 Ill.App.3d 597 (2009), Petitioner Daniel Rub was employed by Respondent as a journeyman carpenter.  On the day of the accident, Petitioner was framing the exterior walls on the second floor of a new house.  Since the house was still under construction, there was a nine foot by nine foot opening in the center of the building. The opening was marked with paint but did not have a guard rail around it.  While working, Petitioner fell through the opening in the center of the house and landed in the basement.  Immediately following the incident, Petitioner was transported to the hospital.  His only recollection of the incident was that he thought he was “going to die.”  Petitioner was rendered a paraplegic as a result of the accident.

While in the hospital, Petitioner tested positive for both marijuana and cocaine.  Petitioner admitted a history of substance abuse to the hospital worker, but denied recent abuse.  Petitioner’s co-worker testified that on the morning of the incident he did not observe anything unusual about Petitioner when he arrived for work.  He further stated that Petitioner did not stumble or slur his words and nothing about his appearance indicated that he was intoxicated or impaired.  Petitioner’s supervisor also stated that there were no noticeable signs that claimant had consumed alcohol or drugs.

Respondent retained Dr. Jerold Leikin, a toxicologist, to render opinions as to Petitioner’s alleged intoxication the morning ofthe incident. Dr. Leikin testified that Petitioner’s medical record revealed positive tests for both marijuana and cocaine.  Dr. Leikin opined that Petitioner’s test results were “consistent with impairment due to marijuana” and that such results were indicative of “proximal use.”  Dr. Leikin testified that Petitioner’s use of such controlled substances would result in “some visual acuity deficits,” such as Petitioner’s impaired ability to judge distance.  Dr. Leikin ultimately opined that the reason Petitioner “might or could have” mistakenly stepped into an open stairway was from an impaired visual response or cognitive impaired response.

Respondent denied benefits based on the intoxication defense.  The arbitrator rejected the respondent’s intoxication defense and found that Petitioner had sustained an injury arising out of and occurring in the course of his employment.  The Commission adopted the decision of the Arbitrator and noted that Dr. Leikin only opined that Petitioner’s fall “might or could” have been due to his marijuana use.  The Commission reiterated the fact that Dr. Leikin could not state the Petitioner’s consumption of controlled substances was the only cause of the accident.  The fact remained that there were other factors of Petitioner’s employment that could have also caused his accident; namely the unguarded opening in the floor.

The Illinois Appellate Court affirmed the Commission’s decision based on the fact that Petitioner’s drug usage was a mere contributing factorandnot the sole causeofhis injury.  The Court stated, “A Petitioner is not required to prove that employment was the sole principle cause, but only that the employment was a causative factor.”

Practice Tip

Intoxication isnot a slam dunk defense for a respondent.  In order to prevail, a respondent must show that intoxication was the sole cause of the injury.  In order to satisfy this burden a respondent can show that the intoxication was excessive.  A respondent would benefit from providing testimony from the alleged intoxicated employee’s co-worker or supervisor that the employee’s intoxication impaired his abilities to perform his job duties.  Such facts may persuade an arbitrator to rule that the intoxication was the sole cause of the accident.

Post Provided by Bryce Downey & Lenkov LLC. Bryce Downey & Lenkov is a firm of experienced business counselors and accomplished trial lawyers who deliver service, success and satisfaction. They exceed clients’ expectations while providing the highest caliber of service in a wide range of practice areas. With offices in Chicago, Oak Brook, Merrillville, IN, Memphis and Atlanta and attorneys licensed in multiple states, Bryce Downey & Lenkovis able to serve its clients’ needs with a regional concentration while maintaining a national practice.

{ 0 comments }

By Joseph Mulvey

In Patricia Dragovan, Widow of Thomas Dragovan (deceased) v. Western Utility Contractors, Inc. 06 IL. W.C. 31304 (2009), the Commission distinguishes a prior Supreme Court ruling outlining the applicable test for causal connection in heart attack cases.

The Supreme Court case, Twice Over Clean, Inc. v. The Industrial Comm’n et al. 241 Ill. 2d 403 (2005) created a very loose standard for proving a causal connection between employment and heart attacks.  Essentially, a heart attack is compensable if the arbitrator can infer that the occupational activity contributed to the disabling condition.

The specific issue dealt with in both of these cases is the causal connection between physical exertion and a heart attack suffered by an employee with pre-existing and unrelated arterial blockage.  In the Twice Over Cleancase, evidence showed that Petitioner’s right coronary artery was 90% blocked at the time of the accident and that Petitioner was “basically a heart attack waiting to happen.”

Despite the pre-existing risk factors, and medical testimony showing that Petitioner could have suffered a heart attack at any time, regardless of his level of exertion, the Supreme Court found the claim to be compensable.  Their reasoning explicitly disavows what had been known as the “normal daily activity” exception, i.e. that an accident arising from a physical condition that has deteriorated to the point that the condition of ill-being could have been produced by normaldaily activity is not compensable.

The Supreme Court found that there was competent medical evidence to show that the exertion preceding the heart attack was sufficient to aggravate the pre-existing condition and that the ensuing attack was therefore work-related.

In Dragovan, the Commission distinguished the Twice Over Cleanruling by focusing on the lower level of exertion leading to the heart attack.  Whereas the petitioner in the Twice Over Cleancase had been carrying 40-50 lb. bags of asbestos in extremely cold conditions, the petitioner in Dragovanhad been shoveling and clearing loose soil for a relatively short amount of time in temperate conditions.

Ultimately, the distinction rests on a slim factual basis and seems to ignore the Supreme Court’s clear directive that medical evidence showing that the activity may have aggravated or exacerbated the underlying condition is sufficient to show a causal connection between the work activity and the heart attack.

Practice Tip

This decision is noteworthy for employers and offers a strong argument that heart attacks occurring during work hours are not per-se related to the employment. It is important in such cases to mine the factual record for details surrounding the accident itself, particularly with respect to the environmental conditions and the level of work preceding the heart attack.

Post Provided by Bryce Downey & Lenkov LLC. Bryce Downey & Lenkov is a firm of experienced business counselors and accomplished trial lawyers who deliver service, success and satisfaction. They exceed clients’ expectations while providing the highest caliber of service in a wide range of practice areas. With offices in Chicago, Oak Brook, Merrillville, IN, Memphis and Atlanta and attorneys licensed in multiple states, Bryce Downey & Lenkovis able to serve its clients’ needs with a regional concentration while maintaining a national practice.

{ 0 comments }