Multi-Jurisdictional Workers' Compensation Claims

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Multi-Jurisdictional Workers' Compensation Claims Selecting the Jurisdiction and Navigating Conflicting State Laws Regarding Benefits, Rights and Responsibilities TUESDAY, FEBRUARY 14, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Thomas O. Sippel, Partner, Leitner, Williams, Dooley & Napolitan, Roswell, Ga. Sean W. Martin, Member, Leitner Williams Dooley & Napolitan, Chattanooga, Tenn. Michael C. Milstein, Bryce Downey & Lenkov, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 5 Presented to Strafford CLE by Michael C. Milstein BRYCE DOWNEY & LENKOV LLC February 14, 2012

6 6 Jurisdiction- The legal power, right, or authority of a particular court to hear and determine causes Subject Matter Jurisdiction The authority of a court to hear cases of a particular type or cases relating to a specific subject matter Rare issue in practice Illinois: liberal state= Petitioner s want to file here

7 7 Each state has its own statute which codifies jurisdiction under its own system of Workers Compensation laws What are the factors for determining if a State has jurisdiction?

8 8 Place where injury occurs Place of employment contract Place where the employment relationship is carried out Place where the employment is localized Place where the employee resides Place whose statutes the parties have adopted by contract

9 9 All states apply jurisdiction if the injury occurs within that state 43 states apply jurisdiction if the contract for employment was made within that state 40 states apply jurisdiction if the employment is principally located in that state However, 15 states will not apply their law to out-ofstate employers with insurance in another state

10 10 Cowger v. Industrial Commission (2000 Illinois Appellate Court) Petitioner was a truck driver injured in Texas Petitioner resided in Illinois Respondent was domiciled in Indiana When Petitioner called to inquire about the job, he was told his job hunting days were over Petitioner thought this meant he was hired, but he had to complete a drug test and fill out paperwork Petitioner also had to pick up his tractor in Indiana Petitioner received instructions from Indiana

11 11 Cowger v. Industrial Commission (Illinois Appellate Court) Court held that for there to be a contract of hire, there needs to be mutual consent Respondent needed the paperwork and drug test before they could accept the Petitioner as an employee No contract for hire in Illinois Injury not in Illinois Employment not localized in Illinois (even though he frequently traveled in Illinois) Illinois does not have jurisdiction

12 12 The Chicago Bears Football Club, Inc. v. Michael Haynes et al (Northern District of Illinois) Players filed for WC benefits in California Players were part of the Collective Bargaining Agreement An Arbitrator held that CBA clearly stated that all WC claims should be brought before the Illinois Workers Compensation Commission Players appealed stating that the agreement violates California public policy

13 13 The Chicago Bears Football Club, Inc. v. Michael Haynes et al (Northern District of Illinois) Court held that there is no reason that the agreement needs to conform to California law The agreement doesn t discuss using California law only Illinois law Court did not look at where injury took place, state of hire, or where most of the work was performed Unclear whether employers can force employees to accept WC benefits from a different state if injured in that state Seems unlikely an employee can sign away those rights

14 14 Mahoney v. Industrial Commission (2006 Illinois Supreme Court)- each state is very different 1969: Petitioner hired to work at O Hare Airport 1993: Transferred to Orlando 1999: Injured Petitioner lived in Ohio Petitioner paid Florida taxes Petitioner had Florida drivers license

15 15 Mahoney v. Industrial Commission (2006 Illinois Supreme Court) Court held that the situs of the contract of employment is the sole and exclusive determinate of jurisdiction when injury is outside Illinois but contract for hire inside Illinois

16 16 Step 1: get ALL necessary information (location of injury, contract for hire, location of employment etc ) Step 2: Review state law where injury occurred and potential other states Numerous reasons, not just jurisdiction. Will be discussed soon Step 3: Check for employment contracts Step 4: Get a lawyer!

17 17 Michael C. Milstein North LaSalle Street Suite 2700 Chicago, IL

18 MULTI-JURISDICTIONAL WORKERS COMPENSATION CLAIMS 18 Michael C. Milstein BRYCE DOWNEY & LENKOV LLC, Chicago IL Sean W. Martin LEITNER, WILLIAMS, DOOLEY & NAPOLITAN PLLC, Chattanooga, TN Thomas O. Sippel LEITNER, WILLIAMS, DOOLEY & NAPOLITAN PLLC, Atlanta, GA

19 19 Subject Matter Jurisdiction The authority of a court to hear cases of a particular type or cases relating to a specific subject matter Rare issue in practice Illinois: liberal state= Petitioners want to file here

20 20 Each state has its own statute which codifies jurisdiction under its own system of Workers Compensation laws What are the factors for determining if a State has jurisdiction?

21 21 Place where injury occurs Place of employment contract Place where the employment relationship is carried out Place where the employment is localized Place where the employee resides Place whose statutes the parties have adopted by contract

22 22 All states apply jurisdiction if the injury occurs within that state 43 states apply jurisdiction if the contract for employment was made within that state 40 states apply jurisdiction if the employment is principally located in that state However, 15 states will not apply their law to out-ofstate employers with insurance in another state

23 23 Cowger v. Industrial Commission (2000 Illinois Appellate Court) Petitioner was a truck driver injured in Texas Petitioner resided in Illinois Respondent was domiciled in Indiana When Petitioner called to inquire about the job, he was told his job hunting days were over Petitioner thought this meant he was hired, but he had to complete a drug test and fill out paperwork Petitioner also had to pick up his tractor in Indiana Petitioner received instructions from Indiana

24 24 Cowger v. Industrial Commission (Illinois Appellate Court) Court held that for there to be a contract of hire, there needs to be mutual consent Respondent needed the paperwork and drug test before they could accept the Petitioner as an employee No contract for hire in Illinois Injury not in Illinois Employment not localized in Illinois (even though he frequently traveled in Illinois) Illinois does not have jurisdiction

25 25 The Chicago Bears Football Club, Inc. v. Michael Haynes et al (Northern District of Illinois) Players filed for WC benefits in California Players were part of the Collective Bargaining Agreement An Arbitrator held that CBA clearly stated that all WC claims should be brought before the Illinois Workers Compensation Commission Players appealed stating that the agreement violates California public policy

26 26 The Chicago Bears Football Club, Inc. v. Michael Haynes et al (Northern District of Illinois) Court held that there is no reason that the agreement needs to conform to California law The agreement doesn t discuss using California law only Illinois law Court did not look at where injury took place, state of hire, or where most of the work was performed Unclear whether employers can force employees to accept WC benefits from a different state if injured in that state Seems unlikely an employee can sign away those rights

27 27 Mahoney v. Industrial Commission (2006 Illinois Supreme Court)- each state is very different 1969: Petitioner hired to work at O Hare Airport 1993: Transferred to Orlando 1999: Injured Petitioner lived in Ohio Petitioner paid Florida taxes Petitioner had Florida drivers license

28 28 Mahoney v. Industrial Commission (2006 Illinois Supreme Court) Court held that the situs of the contract of employment is the sole and exclusive determinate of jurisdiction when injury is outside Illinois but contract for hire inside Illinois

29 29 Step 1: get ALL necessary information (location of injury, contract for hire, location of employment etc ) Step 2: Review state law where injury occurred and potential other states Numerous reasons, not just jurisdiction. Will be discussed soon Step 3: Check for employment contracts Step 4: Get a lawyer!

30 30 Georgia: O.C.G.A (exceptions) O.C.G.A (injuries outside of state) Effect of receiving benefits under another state s system

31 MULTI JURISDICTIONAL CLAIMS 31 Jumping States Knowing election of remedies: Requirement: A knowledgeable and informed choice Receiving medical treatment? Receiving income benefits?

32 MULTI JURISDICTIONAL CLAIMS 32 Jumping States (cont d): Has employee retained counsel? Has a claim been filed? Has employee signed jurisdiction agreement?

33 MULTI JURISDICTIONAL CLAIMS 33 Other Factors to Weigh in Considering Jurisdiction: Income benefits comp rates Medical fee schedules treatment limitations Medical guidelines

34 MULTI JURISDICTIONAL CLAIMS 34 Other Factors to Weigh in Considering Jurisdiction Impairment rating guides (4 th, 5 th, and 6 th Edition all used) Vocational disability

35 MULTI JURISDICTIONAL CLAIMS 35 Other Factors to Weigh in Considering Jurisdiction Panels Suspension of benefits Controverting Claim- which state is better for litigating claim/issues

36 MULTI JURISDICTIONAL CLAIMS 36 Subrogation Conflicts of Laws O.C.G.A T.C.A Employer s right to initiate action ( (d)(2), (3)[longer statute of limitations])

37 MULTI JURISDICTIONAL CLAIMS 37 Subrogation (Cont d): Lex Loci Delecti (Georgia) Most Substantial Contacts Test (Tenn.) Modern Trend

38 Sean W. Martin 38 Thomas O. Sippel Leitner, Williams, Dooley & Napolitan, PLLC Offices across the Southeastern United States