- SUMMER IS HERE
- Supreme Court Crunch Time
- Workers’ Compensation Changes Headed for the Governor’s Desk
- PRESIDENT TRUMP ‘S MOST IMPORTANT EXECUTIVE ACTION MAY BE HIS STAMP ON THE HIGH COURT
- Working Families Flexibility Act
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SUMMER IS HERE
Friday, June 9th, 2017
Summer, and long overdue warm, sunny weather have finally arrived. As school ends our thoughts all turn to vacation and leisure time activities. Here in LaSalle County we are blessed with some of the best recreational lands and activities in the entire state.
With rivers and lakes and the finest parks in Illinois, recreational opportunities are endless, but before you plan that float down the Fox or that hike at Starved Rock you should know that the law provides special protections to owners and operators of recreational property.
Most parks and recreational lands are owned by the state or local government, and they have special protections under the law.
For instance, the statute commonly called the tort Immunity Act provides that neither a public entity, nor a public employee is liable for injury from a condition of property that is intended for recreational purposes, unless they are guilty of willful or wanton misconduct.
Wilful and wanton is a higher standard than simple negligence and means they showed an utter indifference for your safety.
Moreover, governments and government employees are not liable if the danger is obvious or if they failed to provide supervision.
Similarly, The Recreational Use of Land and Water Areas Act limits the personal liability of private landowners for injuries sustained on their property. When landowners make their property accessible to the general public, they are protected from liability for all but a willful and wanton failure to warn the public of unsafe conditions.
Take advantage of all LaSalle County has to offer and take that canoe trip, picnic in the park, or ride the trail on horseback or your quad, but stay vigilant and be aware of your surroundings.
If you do suffer any injury while enjoying these opportunities, the experienced attorneys at Peter F. Ferracuti and Associates are here to help. Our helpful, knowledgeable staff has obtained compensation for clients who have suffered injuries in all types of settings, and will provide you with a free consultation to review your claim.
– Dennis Both, Attorney
Supreme Court Crunch Time
Friday, June 2nd, 2017
The Supreme Court will be wrapping up the 2016-2017 term at the end of June. During these final weeks, the major decisions are being handed down.
Two items on the docket for the justices include political gerrymandering and whether religious institutions have a right to taxpayer funds. The court case, Cooper v. Harris, challenged the constitutionality of political gerrymandering. A decision was made in that case last week. The court ruled in a 5-3 decision that two Congressional districts were racially manipulated in North Carolina. Another case, Gill v. Whitford, comes out of Wisconsin and involves political gerrymandering. Wisconsin Republicans won the complete control of Wisconsin’s government and redrew the state assembly’s legislative map. An appeals court ruled that the map was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.
However, the primary focus will be when the court decides the constitutionality of President Donald Trump’s order banning travelers from six predominantly Muslim countries. On Thursday night, the Trump administration asked the Supreme Court to allow the President’s travel ban that blocks entry from six Muslim-majority countries to go into effect. Previously, the 4th U.S. Circuit Court of Appeals upheld the jurisdiction against Trump’s revised band. In the filings, the Trump administration asked the nine justices to consider the legality of President Donald Trump’s executive order, a move that appeals the ruling by the 4th Circuit that upheld a nationwide stop to the ban. Last month, the 4th Circuit Court of Appeals largely affirmed a federal judge’s decision from March, which found that the ban violates the Constitution because its primary purpose was to disfavor Muslims. The 4th Circuit held that the executive order is composed of vague words of national security but in context “drips with religious intolerance, animus and discrimination.
Now that Justice Neil Gorsuch, Trump’s first Supreme Court nominee, is on the bench the court is back to five conservatives and four liberals. However, it is questionable as to whether the justices will break down along ideological lines. The travel ban touches on more than immigration and involves issues such as authority of the executive and the issue of religious freedom.
So far, it is likely that the court will eventually hear the government’s challenge, but the question is what happens in the meantime. If there are five votes, then a stay would be granted and allow the ban to into effect or everything can remain frozen until the court has the last word. This ban has been the talk since Trump was elected into office. It will be interesting to see what happens with this highly controversial ban.
– Kendall E. Hodges, Attorney
Workers’ Compensation Changes Headed for the Governor’s Desk
Saturday, May 27th, 2017
On Friday, May 26th, the Illinois Senate voted (mostly along party lines) to pass two potentially significant pieces of legislation concerning the Workers’ Compensation system in Illinois. These weren’t exactly the “grand bargain” reforms that legislators have been circling around for the recent past. Indeed, the current tenor in the statehouse being what it is, discussing these might be something of a case of “counting chickens before they hatch.” It is very likely that Governor Rauner will veto the measures and it is equally unlikely that such a veto would be overturned, but as this is arguably the closest that Illinois has come to significant changes to the system since 2011, the laws are still worth discussing.
Separate from the structure of the structure of the Worker’s Compensation system proper, HB 2622 would create a non-profit state-chartered Illinois Employers Mutual Insurance Company, which would compete with private insurers in hopes of tempering the current employer insurance rates in the state through competition. Similar state-sponsored entities exist in other large-states like California and Texas, and neighboring states such as Missouri.
More substantial changes to the text of the Worker’s Compensation law itself come with HB 2525, which combines legislative codification of some judicial interpretations of the previous law with more substantial oversight of insurance rates themselves. Some of the biggest changes include:
• Requiring pre-filing of employer insurance rates with the Department of Insurance, and a prohibition against excessive rates.
• Additional penalties for undue delay of medical treatment.
• Further transparency requirements for self-insured employers.
• Reclassifying hip and shoulder injuries so that they are considered to be injuries to the leg and arm.
• Clarifies the American Medical American impairment rating guidelines’ use in the determination of Permanent Partial Disability benefits.
Again, the laws don’t have any effect unless they make it past the Governor. While the odds of that happening at this point are slim, both sides in Springfield agree that the Workers’ Compensation system isn’t perfect, and the bill passed on Friday can, at least, give insight into the Democrats’ negotiating position.
– Travis J. Dunn, Attorney
PRESIDENT TRUMP ‘S MOST IMPORTANT EXECUTIVE ACTION MAY BE HIS STAMP ON THE HIGH COURT
Friday, May 12th, 2017
Justice Antonin Scalia was the intellectual leader of the conservative bloc of the United States Supreme Court. As has been discussed at length in the media, he died suddenly last year leaving the high court without a full complement of justices.
Republicans and Democrats alike were keenly aware that the replacement of Justice Scalia would likely shift the balance of power on the court.
Ultimately President’s first action of substance was nominating Judge Neil Gorsuch. Judge Gorsuch is widely admired in judicial circles, despite what has been reported in the media. Being only 49 years old he is likely to keep the majority of the court conservative for years to come.
Perhaps more importantly though is the rumor that 80year old Justice Anthony Kennedy may resign this year.
Justice Kennedy has long been considered a moderate and a swing vote on the court. Many court observers say he will step down this year. If so that will give the President a second nomination in a relative short period and allows the conservative bloc of the court to solidify.
This year the court takes up many controversial issues such as whether the Second Amendment permits citizens to carry guns, even when state laws prohibit the same.
Justice Ruth Bader Ginsburg, a member of the liberal wing of the court is 83 and has been in ill health for many years. It seems unlikely that she will continue to serve on the court for the President’s entire term giving him the opportunity to make a third appointment, all of which will have an impact on the direction of the court years after President Trump leaves office.
Much has been made of his stance on immigration, the legality of which may ultimately be decided by his nominees. Likewise the news has been filled with discussions of tax reform and repeal of Obama Care, the rebuilding of the military and punishment of cities and states that violate federal law by harboring illegal immigrants, but it may be that Trump’s most lasting impact is the one he has on the Supreme Court.
– Dennis Both, Attorney
Working Families Flexibility Act
Friday, May 5th, 2017
On Tuesday, the House of Representatives passed a bill that would allow employees to swap overtime pay for “comp time.” This bill is known as the Working Families Flexibility Act.
What does this mean? It means that if you are an eligible private-sector hourly worker, the bill would give you a choice: Do you want the time-and-a-half pay when you work extra hours? Or do you want to trade that for an hour-and-a-half of comp time that you are able to bank and request to use at a later date? The answer will most likely depend on whether you need cash in your pocket now or more time to take care of personal matters.
However, the introduction of this bill is not new. Congressional Republicans have tried to push this bill through for more than two decades. House Republicans introduced similar measures in 1996, 1997, 2003 and 2013. In addition, the White House is on board with the bill. President Donald Trump’s advisers will recommend that he sign the bill into law. Under President Obama, a rule was introduced that more than double the salary cap under which employees would be eligible for overtime from $23,660 to $47,476. However, this rule was blocked by a federal judge in November. It would have affected more than 4 million salaried workers.
House Republicans are very much for this bill. Their main argument that being that working parents time is previous and working families need flexibility. House Republicans argue that there is nothing more powerful than giving them more control over their time so that they can make the best decisions for themselves and their families. What about the Democrats? Well, they don’t like this bill. House Democrats argue that the bill would chip away at certain protections for hardworking Americans and would challenge the Fair Labors Standards Act. This bill would give employers the final say on when comp time can be used which is an issue with the Democrats. House Democrats fear that your boss would stall on the money you earned putting in extra hours.
Personally, I could see some benefit in this bill in that the extra hours could be used to take care of matters that a worker is unable to during work hours or even use the time as a parent to attend your child’s event. However, I can also see the concern from the House Democrats in stalling the comp time. I will be curious to see what happens with this bill as it has been attempted to be introduced for decades.
Our office focuses on employment matters. If you have any questions or concerns regarding employment and your right as a worker, please feel to call our office toll free at 1-888-488-4LAW (4529).
– Kendall E. Hodges, Attorney
Tragedy and Employer Responsibility
Saturday, April 29th, 2017
In a potentially significant ruling concerning the responsibility of employers for the acts of their employees and agents, the Federal Court of Appeals for the Seventh Circuit issued a ruling on March 24th in the case Sherry Anicich v. Home Depot, et al. The Court’s ruling reaffirms the principle that employers may be liable for the actions of their employees, no matter how despicable and intentional those actions may be, if the employer is negligent in hiring, retaining or supervising the employee.
The facts of the case itself are, in short, disturbing. I’ll try to avoid being too graphic here; it involves a supervisor with a clearly established history of sexual harassment and anger issues towards females employees working under his control. This harassment was frequent, obscene, aggressive, and degrading. Ultimately, this employee threatened to fire or reduce the hours of a particular employee unless she accompanied him to a wedding. Following the wedding, the supervisor murdered the woman. The Mother of the murdered employee brought suit against the Employer for negligence in Illinois, but the case was moved to federal court as a procedural matter. There, the Employer was able to get the Complaint dismissed for failure to state a proper claim. The Mother appealed, and the Seventh Circuit ended up with the case.
The (very) general rule in Illinois is that you can’t hold people, or in this case companies, responsible for the criminal actions of others, but there are many exceptions to this rule. Employer-employee relationships can be one of them. An employer can be held responsible for negligently hiring, retaining or supervising an employee, if
(1) the defendant‐employer knew or should have known that an employee had a particular unfitness for his position so as to create a danger of harm to third persons;
(2) that such particular unfitness was known or should have been known at the time of the hiring, retention, or failure to supervise; and
(3) that this particular unfitness proximately caused the plaintiff’s injury.
In this case, the court felt that the circumstances were such that the case should be allowed to continue. Of particular importance are the findings by the court that the employee used his authority granted by the employer to pressure the woman into going to the wedding (the fact that two people know each other through work is not a strong enough connection by itself to hold the employer responsible, the employer must in some way provide the means for the commission of the offense) and that the murderer had a history of aggressive and violent behavior, even if he had never previously made an explicit threat of violence towards another employee.
This case, while certainly an extreme example, does demonstrate the importance of considering all possible avenues for liability in any type of lawsuit. Even if you are holding a person responsible for your injury or damages, holding an employer responsible for its actions (or lack of action) can be just as important.
– Travis J. Dunn, Attorney
Medical Bill Recovery: What You Need to Know
Friday, April 21st, 2017
From our standpoint, medical bill recovery is one of the most difficult parts of the settlement of any claim. It is becoming increasingly more difficult to get the correct dates of service and amounts for service from any provider. In fact, many providers now charge us to even obtain a copy of the bill they are sending to the client. This is another cost which comes out of the total amount of settlement at the end of your claim.
To make things easier, I have a few suggestions in general, if you’ll indulge them. First, when you come into our office, we present every client with a notebook. That notebook is perhaps the most important part of your recovery packet that we give you when you first come to our office. That notebook is where you should keep a record of all your testing, doctor appointments, and referrals throughout the time you are treated for your injuries. If you successfully keep track of all your appointments and testing, as well as what facilities you went to for these things, you can compare that against the medical bills exhibits put together by our medical billing experts throughout your claim and once more at the end of your treatment. Second, please obtain a copy of your complete billing from all facilities from which you have sought treatment. That will eliminate potential costs incurred by our office to obtain those bills as they are available to you for free by most providers. We are certainly happy to help you obtain the bills should you encounter difficulty, but most of the time it is much faster for the client to obtain the bill than it is for us to order it and receive it from the provider.
It’s important that you help us and participate in your recovery. If you’re able to keep track accurately of all your appointments, we can make sure that all necessary bills are on your medical billing exhibit and no bills are left unturned. That eliminates potential expenses unaccounted for in the future. My staff is wonderful, and I don’t call them medical billing experts for nothing, but mistakes can be made on our end and on the end of your providers. Sometimes there are multiple accounts for each client and the provider fails to turn over all account numbers. I’ve written a blog similar to this before, but help us help you. If you participate in your recovery, your outcome will be significantly more organized and you will feel more confident in the advice being presented to you. I look forward to working with all of you in the future to help you get through these trying times, and encourage you to call our office should you have questions or concerns in the future.
– Alexis P. Ferracuti, Attorney
Friday, April 14th, 2017
This blog will be short and sweet, but I just want to take a time out of the daily hustle and bustle of life to tell all of our clients and community members how appreciated they are. It’s been a crazy couple of months here in Ottawa and Naplate. A tornado hit us, and that has caused a significant amount of damage to the people and places in its path. We lost two lives, several people were wounded, a lot of property was damaged, a lot of people became afraid of every rain storm, and a lot of us had a very real wakeup call about what mother nature can do in all of her glory.
But we persevered. We’ve grown stronger. Our community raised $70,000 by itself, for itself, and we took the time to help our neighbors before we even took the debris out of our own yards. We have raised over $220,000.00 so far in the relief effort that will be donated directly to the citizens of Ottawa and Naplate that were affected by the tornado. If you were affected, please call the 800 number (800-451-1954) to ensure that your unmet needs can be taken care of. It’s extremely important to us that you know how appreciated you are in our community, how valued you are, and how much we care about one another.
I’ve had the opportunity to live in a completely different state on the east coast for a significant portion of my education, and I was there for some tough times. I’m continually amazed at how significantly different groups of people can come together when tragedy strikes, and our community isn’t any different in that regard. We are different, though, because this community comes together on a daily basis to take care of each other. People here put their neighbors, friends, and family before themselves, and that’s something that gets lost in today’s hustle and bustle world.
I’ve always been proud to be from this community. My dad was born in Naplate and lived in Ottawa, and my family has owned a significant amount of businesses in both Ottawa and Naplate over the course of our time in this community even dating back to my grandparents and their siblings. I can honestly say that the aftermath of this tornado has made me even prouder, if that’s possible, of the people in this community. I’m proud of how hard working we are, how strong we all can be, and the love that we all share for where we live and the people who live here.
Thank you. From one citizen of our community to another. I think the qualities we have here are somewhat rare in today’s global situation, and I’m proud that I always have been and always will be associated with all of you as a friend, as family, and as a local business owner. I really appreciate every single person who has taken the time out to help during this tragedy, and in its aftermath, and I look forward to helping everyone get back on track in the upcoming weeks.
– Alexis P. Ferracuti, Attorney
Defining the Course of Employment
Friday, April 7th, 2017
Under Illinois Workers’ Compensation, an employee is entitled to benefits for injuries that arise out of and in the course of employment.
- “In the course of” refers to the time, place and circumstances under which the accident occurred. For an injury to be covered under the law, it must be proven that employee was doing his or her work at the time the injury took place. This is simple if an employee is at work when the injury occurs. However, it becomes difficult if the employee was not at his workplace when the injury occurred. There are some exceptions to this rule:
- Going to and coming from work – injuries which occur while traveling to and from work are generally not compensable, unless the employee is on or near the employer’s premises and injured because of particular hazards associated with it. Other exceptions occur when the employee is required to travel as a part of employment, or if employer supplies transportation
- Personal errands – injuries which occur when an employee stops working to run a personal errand are generally not covered, unless the employee is still doing work for the employer at the same time they are running the errand.
- “Arising out of” refers to the origin or cause of the accident and presuppose a causal connection between the employment and the injury. For an injury to be covered under the law, it must be proven that the employee’s work caused the injury. Most injuries which occur at work will be found to arise out of employment, there are some exceptions to this rule, such as:
- Acts of god – injuries from lightening, earthquakes, floods, etc.
- Assaults – Injuries from fights at the workplace can be compensable if the fight had something to do with work. However, an injured employee who is the aggressor will not be compensated. Injuries from assaults by 3rd persons can be compensable if the work is done in a dangerous environment or the employment increases the risk of assault
- Alcohol and drug related accidents – Injuries that are caused by an employee’s consumption of alcoholic beverages or illegal drugs are generally not compensable if it is proven that the employee is so intoxicated that he cannot carry out his job duties. In order to justify compensation, both of these elements must be present at the time of the injury.
The Illinois Workers’ Compensation Commission recently denied benefits to an employee for injuries that were sustained while participating in a weightlifting competition at his workplace. The weightlifting competition was to raise money for the Employee Benefit Fund and to promote awareness of the positive effects of exercising. The Commission determined that this was a voluntary recreational activity under the Act and thus did not occur in the course of employment. The Commission constituted that if an employee is ordered or assigned by his employer to participate in the activity that caused the injury. In the case discussed, there was no evidence that the employee was compelled by the employer to participate in the weightlifting competition. In addition, the Commission even took into account the amount of employees who participated in the competition which revealed to be less an 1 percent of the employer’s employees. The Commission found that the extent of the employer’s involvement in the activity was that it occurred on the premises.
The law is not black and white on defining the course of employment. The law is ever evolving and changes occur with each case that is presented to the Commission. The case discussed above is a prime example of how the definition of arising out of and in the course of employment fluctuates. If you ever have any questions whether your injury is covered under the Illinois Workers’ Compensation Act, it is best to seek competent legal advice.
Please feel free to call our office toll free at 1-888-488-4LAW (4529).
– Kendall E. Hodges, Attorney
HELP US HELP YOU
Friday, March 31st, 2017
Sometimes when Plaintiffs head to jury trial, it is difficult to convince a set of 12 sitting jurors who had prior commitments and other duties than jury duty to listen attentively and make accurate decisions regarding the distribution of funds or what is just in an auto accident claim. This is why I’m writing this blog asking my current clients and future clients to help us help you.
Jurors tend to focus on the underlying morality of the accident at hand rather than the legal elements that should win you the compensation you deserve. They are empathetic and sympathetic to the plights of both parties involved in the accident. For instance, if the defendant in your claim is a young girl who is in college and admits on the stand that this was simply an accident, the jury is going to feel sympathetic towards her and may not want to force her to pay a judgment for an accident. We all know that this accident caused serious bodily harm to you and serious physical damage to your car. It is clear to all involved that none of those damages should be your responsibility. However, defense attorneys often try to cloud the judgment of the jurors to believe that their sympathy for the parties should outweigh what the law demands which is fair compensation to the plaintiff even if the resulting injuries were just an accident by the defendant.
To help us help you, there are a few things that we will need for trial. Visuals are incredibly important. We require visuals of the scene of the accident, of both vehicles and of any x-rays or MRIs you received during your claim. In addition, it is incredibly helpful if we get photographs of you modeling what position your body was in in the vehicle when the impact occurred. That shows the jury why you might be having the symptomology post-crash that others may not have experienced in a similar type of auto accident.
Additionally, we’ll want to put together some sort of either photograph of the two vehicles after the collision when they’re still near each other or a computer animation of the same to show the severity of the impact immediately after the accident.
It is important that we are able to accurately present your story. We need to present not just your injuries but who you are, your hopes for the future, your fears for the future and the difference in your physical and emotional capabilities before and after the accident. Assist in your case development so that the jurors have no other choice than to decide in your favor at trial. Help us help you.
– Alexis P. Ferracuti, Attorney
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