Synopsis: Federal Seventh Circuit Court of Appeals rules in Indiana case that Property Owner, Contactors Not Be Held Civilly Liable for Worker’s Fall. This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: Independent Contractor’s Employee was Unable to Pursue Negligence Claims Against Various Parties to the Construction Contracts. Jeffords v. BP Products North America Inc., Case No. 19-1533 (7th Cir. June 29, 2020).

BP has an oil refinery in Whiting, Indiana and hired Fluor Constructors to provide engineering, procurement and construction management services for a project. BP and Fluor each entered into separate contracts with MC Industrial for the construction work. BP also contracted with Central Rent-a-Crane for crane operation services. Central had no contracts with Fluor or MCI.

Mr. Jeffords worked for Central, and while on the catwalk of the crane he lost his balance, fell and suffered injuries. He filed a negligence suit against BP, Fluor and MCI. The Northern District, Hammond Division judge granted summary judgment for defendants, finding that none owed a duty of care. The Court of Appeals affirmed applying Indiana law.

The court held that plaintiffs asserting negligence claims must prove that defendant owed him a duty of care and breached it in a way that caused injury. The court said that even if it accepted the premise that BP, MCI and Fluor all could be characterized as general contractors or construction managers, that did not mean they owed a duty of care to Mr. Jeffords as the employee of an independent contractor. Whether a duty exists depends solely on the language of the contracts.

While MCI was contractually charged by Fluor with responsibility for the safety of its subcontractors’ employees, Central was not MCI’s subcontractor. Therefore, MCI owed no duty of care to Mr. Jeffords under its contract with Fluor. The court also noted that none of the contracts contained language imposing on any defendant a specific legal duty toward, or expressly assigning responsibility for the safety of, Central’s employees.

Fluor and MCI had contractual obligations to take reasonable precautions related to sanitation and health for the safety of its personnel and the personnel of others, and to protect all work done and all materials furnished, but this language was designed to protect property, not people.

It  was noted that defendants additionally had contractual obligations to comply with regulations promulgated under OSHA, but the Court  held that contractual promises cannot be enforced by anyone not a party to them, in privity with a party to them, or an intended beneficiary of them. Mr. Jeffords was not a party or in privity with a party to any of defendants’ contracts. Finally, the Court found that none of the defendants had assumed duties of care toward Mr. Jeffords by their conduct, and that BP could not be held vicariously liable for negligence by Fluor or MCI, since neither owed him a duty of care.

To read the federal court’s decision, click here.

This analysis was researched and drafted by Kevin Boyle, JD, KCB&A’s IN defense team leader. Kevin can be reached for thoughts, comments and defense of IN or IL WC/GL and EPLI claims.

 

 

Synopsis: Impairment Ratings Protocols To Morph from AMA Guide Books to Online Guidelines.

 

Editor’s comment: When the Workers’ Compensation Institute’s national conference convenes this week online, enormous interest will be focused on the American Medical Association’s new concept for issuing valid impairment rating guidelines in the work comp arena. To the extent the IL WC Act contemplates impairment ratings as a method for choosing “permanent partial disability,” this is important to claims and risk managers and lawyers on both sides.

 

The AMA “Big Book” Will End In This Cyber-Era

 

Books are much out of style in this digital age. We expect the AMA’s prior practice of releasing a large and complex hardcover version of their AMA Guides to the Evaluation of Permanent Impairment every 10 years or so is going to forever end. Versions of these Guides were adopted by more than 30 states’ workers’ comp statutes, and the latest, the Sixth Edition, has been challenged by appellate court decisions in two states.

 

In response, the AMA will start to offer the Guides in an online fashion only, perhaps by subscription. They will revise them in “real time,” constantly updating and evaluating impairment ratings as medical evidence evolves and input from all sides of the WC matrix flow in.

 

Once this online capability starts, for the first time, if any party objects to the formula to create an impairment rating, they’ll be able to quickly petition an AMA panel of experts to revise the AMA Guides. This process will allow for peer review and input from a range of specialists. The main focus is to create a formulary that is open to input from all sides—a more “transparent process,” in the words of one expert.

 

One question from worker advocates is whether the new system, in the works for more than a year, will lead to substantial changes in the current impairment ratings.

 

Many Veteran Observers Don’t Expect Significant Change

 

In our view, Claimant lawyers oppose anything that limits their ability to get high impairment values from hearing officers and maximize claimant and their recoveries. Any “science” that limits their involvement, influence and income is certain to be criticized. For that reason, we feel there will be court challenges to follow whatever the online AMA Guides might do to limit Plaintiff/Petitioner recoveries.

 

One proposal under consideration by the AMA panel would refine functional inventories, which include exercises and questionnaires that help measure impairment. Another would require use of the newer version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders to help doctors assess mental and behavioral issues.

 

The defense team at KCB&A still recommends our clients consider getting an impairment rating on any significant WC claim, as such ratings are admissible and provide lower values than traditional IL Permanent Partial Disability levels. There is no “science” of any kind supporting how our hearing officers used to and still set PPD values in pretrials and decisions—they go by tradition and a “seat of the pants” view of what to write. We feel this is contrary to what the AMA Guides and impairment ratings are supposed to provide—reproducible and scientific values.

 

You Can Still Register and Participate in the WCI Virtual Conference That Starts Tomorrow—It is Free and Should Be Informative

 

https://event.vconferenceonline.com/microsite/html/event.aspx?id=1693

 

We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider–his new OccDisease Investigation protocol to allow you to:

  1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

  2. Investigate and verify claims for other workers possibly not covered by the Rules and

  3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com