Multi-Jurisdictional Workers' Compensation Claims Selecting the Jurisdiction and Navigating Conflicting State Laws Regarding Benefits, Rights and Responsibilities

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TUESDAY, FEBRUARY 14, 2012

Presenting a live 90-minute webinar with interactive Q&A

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

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Presented to Strafford CLE

by Michael C. Milstein

BRYCE DOWNEY & LENKOV LLC

February 14, 2012

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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

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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?

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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

8

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-of-state employers with insurance in another state

9

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

10

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

11

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

12

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

13

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

14

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

15

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!

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Michael C. Milstein mmilstein@brycedowney.com – 312-327-0042 200 North LaSalle Street Suite 2700 Chicago, IL 60601 www.brycedowney.com

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MULTI-JURISDICTIONAL WORKERS COMPENSATION CLAIMS

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

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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

19

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?

20

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

21

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-of-state employers with insurance in another state

22

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

23

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

24

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

25

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

26

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

27

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

28

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!

29

Georgia: O.C.G.A. §34-9-2 (exceptions) O.C.G.A. §34-9-242 (injuries outside of state)

Effect of receiving benefits under another

state’s system

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MULTI JURISDICTIONAL CLAIMS

Jumping States Knowing election of remedies:

Requirement: “A knowledgeable and informed choice”

Receiving medical treatment? Receiving income benefits?

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MULTI JURISDICTIONAL CLAIMS

Jumping States (cont’d): Has employee retained counsel? Has a claim been filed? Has employee signed jurisdiction agreement?

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MULTI JURISDICTIONAL CLAIMS

Other Factors to Weigh in Considering Jurisdiction:

Income benefits comp rates Medical fee schedules treatment limitations Medical guidelines

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MULTI JURISDICTIONAL CLAIMS

Other Factors to Weigh in Considering Jurisdiction

Impairment rating guides (4th, 5th, and 6th

Edition all used) Vocational disability

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MULTI JURISDICTIONAL CLAIMS

Other Factors to Weigh in Considering Jurisdiction

Panels Suspension of benefits Controverting Claim- which state is better

for litigating claim/issues

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MULTI JURISDICTIONAL CLAIMS

Subrogation Conflicts of Laws O.C.G.A. §34-9-11.1 T.C.A. §50-6-112

Employer’s right to initiate action (50-6-112(d)(2), (3)[longer statute of limitations])

36

MULTI JURISDICTIONAL CLAIMS

Subrogation (Cont’d): Lex Loci Delecti (Georgia) Most Substantial Contacts Test (Tenn.) Modern Trend

37

Sean W. Martin sean.martin@leitnerfirm.com

Thomas O. Sippel tom.sippel@leitnerfirm.com

Leitner, Williams, Dooley & Napolitan, PLLC 800-421-0979 Offices across the Southeastern United States

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