doing business together as a way think thank you it is the court the two issues that we have of before you i would like to spend the majority of my time on the two six fifteen issue and i would also like to reserve at least five minutes for a part that's ok i must say that i think in all fairness to judge quinn is quite knowledgeable and has been sitting up there quite for some quite some time however i think he got it wrong here i think is that the court seemed to be confused by some very basic language within the workman's compensation act and i believe if that the court the lower court the trial court contrary to judge quinn's opinion does have jurisdiction and he has jurisdiction to determine as a matter of law whether or not sixty eight and paxton and  statutory employers and i found it sort of curious listening to the previous argument that we're sort of talking about statutory construction here and its definition and how to how the plane read of that construction is by the court i know i see it all the time but i think importantly for us in this particular case the plain read of the section that we have relied upon in our complaint in our fourth amendment complaint does not require in any manner or form the exclusive remedy that busy com commission the workman's compensation commission first make the determination whether or not there is a statutory employer we think that with the way that the case that the complaint has been pled in this particular case allows judge quinn the motion judge in fact finding by the trolls as for the case that you're just face justice you well know in any trial situation when you have a request to admit facts or a defendant that makes an admission pleadings the trial court can and does direct a jury to a specific known fact that they must accept and i think the same thing can be done here i don't think it's relevance in terms of deciding the statutory employer whether or mr keating was or was not a sub contractor or an employee i think what we have asked the court to do is to make a specific finding as a matter of law because this was a two six fifteen motion we're going to court has to take is well pled that those are those facts really let's say he said you know you're right when i read th workman's compensation act in other words to be a statutory employer you have several factors that you have to follow first that the either directly or indirectly engage the contractor to perform extra hazardous duties as defined in s three section three of the act says then the contractor was hired who hired the plaintiff was not insured under any workman's compensation policy if insurance is a statutory duty to make sure the keating was insured or had some sort of coverage and because of this relationship between sixty eighth and impacts and ogilvy the and the failure to provide the insurance only did mr johnson have no workman's comp and certain insurance but then the owner of the property had no workman's compensation insurance even though he had a business and it was presumed that he would have had some sort of insurance so talking about remedies that the legislature has created it's clear that what the legislature has done is said and and i think if you look closely at section four there or five six different paragraphs but these are really all different remedies the defense's claim and judge quinn agreed to but you have to go to the commission but i think if you'll read paragraph one of section four as we  argued that just goes to the commission has to make a determination for purposes of a work stoppage to be i'm talking about yes for deep these that broken down and that makes it difficult well yeah i guess i  simply sort of fish it out just the spacing meant a separation of the paragraphs but i think each of these is a remedy that the legislature has said needs to for each particular type of action that question such as i same paragraph one of section four d or that first paragraph it talks about the quote the commission is comprised of but then it says then there he they have to get together because of the cessation of all business operations and then they concluded that they had ordered to the sheriff or a police department to ensure to go out there and force it and then you have a case a provision that says listen if you don't have this it's either going to be a felony or misdemeanor and then it goes further down and says and if it's a felony or misdemeanor it's either the state's attorney of the county where the attorney general can bring a criminal prosecution for that  and then when it gets to work the section we're talking about it says employees who are subject to unknowingly fail to comply with this section shall not be entitled to the benefits of the sec during the period not compliance but shall be which we found later but and but i don't think i think the whole purpose of this act justice coming to him is to ensure that there is a correction of the wrong as all as the legislative language is always trying to do a source and reaction the workmen's compensation act is really really a sort of a social remedy allows for people that are injured on a job not to have to prove the proximate the injury but it's sort of there and this is what it isn't and here is the value of your particular injury but i think the legislation is interesting there really is there is there was highly any legislative discussion in that in the histories about this section it's it's there but it's there we think to correct the wrong and this is the collection of the wrong it may never have been in this may be a case of first impression it may never have been used before but the language is there and the language really says the court has to make as a matter of law a determination of the step because why bother going back to that for the whole purposes so you don't have to go back to the comp commission workman's compensation commission because there's no insurance there why bother it gives the lid of a grudge a slater has cut out a particular provision that says to the circuit court you can do this now they don't tell you how they're  cases sometimes issues of contribution in the issues of whether or not you have to pay who gets paid back and when it's when it when it has to be filed all these different issues that are always sorted out by shifting doesn't require the commission to hear this i think the specific language within that that sub paragraph if we want to call it it's allows the circuit court to make a decision and a but knowing that it's not going to happen that way i don't think if the the judge queen or whoever sits has to make a specific determination of facts i think the facts as pled in the complaint will allow him to make or her whoever sits there were allowed him to make a decision as to the statutory employer then once he decides if there's that story employer based upon the well pl summary judgment issue which we believe again respected to judge when he's wrong and he's wrong because there was a sense there was a burden on  well he said he saw that the pickets were attached to the screws but what was the what was the hidden danger was it was the couplings the that were attached from the railing to the wall and no one knew that not investigator but company to examine his porch if there were complaints from another building he only he using that hired mr godson consing construction to redo the porches with in that that report that only he had it which he didn't tender to mr gunson or talked to him about was the fact that the company he  imply this repair company or investigative company found that the brackets that were attached to the railing itself and to the wall were improper they had these gussets that were in  screwed in the front and not in the back he couldn't pull them off couldn't use a screwdriver he had to lean over this this railing which he didn't strike the music and still leave somewhat because he doesn't know why he don't because he was leaning over the railing not because he just hand you know a momentary drop in blood pressure could be anything he doesn't know well put in but the hidden danger was it was in fact  what was the proximate cause of this injury for or proximate cause by circumstantial evidence certainly circumstantially if the condition of the railing was no certainly mr shweta quiz our expert in this case testified that in his experience and based upon his knowledge of repair and construction business that there was a duty  thing that well he did but but he distill it distinguish that because in this case he found that these pickets were in fact screwed in from the front so as you face them they weren't behind me that the they were behind the behind the really they were in the front of the railing facing towards the building so he couldn't pull them off like he would and the other thing that there was a that even the dippin skis the other people that were there were there to assist in removing the the the roof of the porches and repair the porches said that guns and wanted them to use the wood that's available cannot fill the gap by speculating that this if this had happened that would be the causation we have no with a little bit more well as as i said i think for purposes of the summary judgment in order to defeat that all we need is an inference from the facts and i think the inference from the facts of the proximate cause is that there wasn't the knowledge the knowledge that mr o b s had was not given mr johnson who did not give it to mr and then francis leno and it gave way correct but there's another entrance out there that leno is nothing to do with ways that he removed really well that's that inference is not based upon the facts in this record i mean that i know it's what the defense has argued i think in this case is that he hit he kept saying that he multiple repetitions that the fact finder is the commission for the fact finder is the three panel person appointed by the commission one who is representing the employer o is representing the employee in one who represents a neutral counsel is relying upon an isolated paragraph in section forty without reading the entire section forty and he doesn't read the section correctly employers who are subject to and who knowingly fail to comply with this section that phrase takes you back to the entire section you cannot interpret that phrase without looking at the entire section of the statute so where do you go back to you first go back  to for a for a says employers must insure their workers pappa station liability three different ways to do it it's all set forth in the statute of bond self insurance a financial statement a policy of insurance etc if you don't do that and if you don't insure your workers compensation responsibility then the commission the three commissioners a panel of three commissioners with due process and after a hearing can make a finding that your new knowingly violated the and you did not have workers compensation insurance for your people who came up on your work site therefore the in fact finder is the commission the statute says it multiple times one of the all orders oh it was of the best place as yes it's paragraph and i know they're not numbered but it's the paragraph just before a paragraph of the all orders made by the commission under this section shall be subject to review by the courts in the same manner as prescribed under section one thousand of the act then in the last sentence of that paragraph says upon review the circuit courts will have the power to review all questions of fact as well as of law therefore the process works like this the commissioners make the findings of fact and then the courts when the proper procedure is followed when the proper bond is in place then the court can sit as a court of review on that question of fact the entire statute has to be read as a whole we know that we knew that point talked about the first case this morning you know that the dram shop act in its responsibilities said what they're writing social codes you have to read the entire statute counsel is misreading one paragraph of the statute there are other places in this statute and if you number them paragraph if you number the on numbered paragraphs it would be paragraph eight upon a finding by the commission after reasonable notice  hearing of the knowing and willful violation or willful failure she was meet of an employer to comply with any provision of paragraph eight of this section you go back to paragraph says you must ensure your workers compensation responsibility the statute is prolix but it is not there is a reference to the circuit court and there are of sort remedies to a certain remedies that are referenced but they are there are conditions proceedings to secure those remedies let me ask you this and i said oh you're thinking about that's a good question and no i mean i know it's a good question but the way i would approach it is that the state's attorney has the right to file that action once the appropriate findings have been made and i believe just like the police would investigate a crime i believe that the investigatory power to investigate whether there's been a knowing in that will for violation has been vested in the commission in phrase says with due process and i look at the death phrase and said what does that mean because how do you tie that in with the potential for a criminal penalty in this statu felony which is a serious crime and my thought is that the commission has made a legislature to the legislature has made by the wording of the statute as intended that this to be a very serious offense and therefore that if you're going to defend this at the commission level you may want to have a criminal attorney at your side because you procedurally this will work by submitting this all for the circuit court of within you know you say something different but i think that that's the point he is essentially asking us to make this leap of faith if we if you will with him to find a procedural resolution to this very novel question i believe the procedural resolution is in the statute the statute is clear about how to cited a case that talks about section forty it's in the record the size of the case is eisenberg versus the industrial commission in that case it's the only known case i district second division found that the commission followed the proper procedures in making the findings as to whether or not the defendant in that case at the statute and it does understand that the fact finder is the commission is the can i was three commissioners and they did their job right and they followed the language  the state to deal with questions of employee employer relations that's the on line that's the commission that's what the supreme court says it broke ok that agency was created to deal with these issues and under the skilling case that agency must be given its not due deference but it must be given great deference i forget the exact expression but they have their decision purpose of fact finding that can there is only primary jurisdiction in the industrial commissioners who are selected pursuant to the first paragraph or forty if we switch to the summary said four cases in our brief each of them that talk about the nexus between the way the plaintiff was injured and some negligence on the part of the defendant and in this case as this court has already pointed out there is no nexus what there is no proof that mr keating was leaning against that really the only proof and it's at page one forty two of his testimony when i asked him the question or when he volunteered in response to a question that i earlier asked and then i remember hitting a rail and that's all i remember he didn't say it in a picket he said hitting a that he remembers is hitting that railing that's what he admitted and then he doesn't know what happened after that and what the plaintiff and what the plaintiff's action is asking this court to do is to speculate on what happened after he hit that railing because no one knows no one knows if he tripped over the railing that he pulled towards himself no one knows if he slipped on the wet back no one knows if he had a heart attack and fell over no one knows and the court is being asked us to speculate when there are no facts from which to speculate there are no facts to infer that mr heatings body was against that railing the facts are actually  opposite ok if you're striking the railing with his hammer then the inference is that you're not leaning on the railing because if you lean on the railing and you strike it at the same time and that railing is your only story thank you i believe that i'm a summary judgment that judge quinn was absolutely correct in his ruling and i believe that on the two six one five that the statute shows if you read it in its entirety at the commission is the fact father thank you thank you thank you for page you want me to read instead of that and i believe that's in that same sex much paper you're just reading from the inside of a record ok yes and i'm afraid i don't have that page marked up here it's the page i thought it was on one seventy six but board at the door before they began the demolition and the only reason he wasn't whacking them out was because the way that they were constructed so instead he said you took that on the ground no he doesn't say that he says i would take down the whole railing if we were doing here's what happens is before they start tearing the porch down they don't want somebody walking out with no porch deck there so they normally use new wood board up the doors but they didn't have new wood here so they are taking pickets so mr johnson said take pickets so they're looking for pickets that are in good shape knocking them off they haven't even touched the railings they have need such support structures they're weak they have the right that they're hidden danger and and what they're doing is they're boarding up the doors of the pens and surliness way taking the pickets they're being given and they're the going to say i went up to take off pickets to board the doors that's what he's saying he never mentions he took down railings and that section we're talking about is a discussion of how you could take down the whole unit  there he's only interested in pickets that's all he's there for there when he's knocking on a picket now we don't know whether the railing fell off before he fell or after he fell but he lost his balance at some point right he at some point in order for really to get down to the ground where he is with them he had to make somebody contact so he either fell against it at some point before he fell or after fell but at some point that railing went down on its own in one piece he went down a when he's standing here and whacking the rope is on his feet he's not putting two hundred pounds here so in order for that whale to detach just by getting a picket it would not it would have to be below code and it's below code because the are attacking it or deficient and that's the hidden danger now the circumstantial evidence is that he was only moving pickets before he fell the circumstantial evidence is that that was what was left down there at the end was a railing that was not broken screws were stripped so he couldn't unscrew them so he had to hit them so the duty is that there was this problem with the support columns imposed nobody other than the obese knew it the tennis didn't know what they had no not at the crack it's not about the crack it's that's what we're talking about the predicates were not properly supporting the columns and opposed to the railings roof in the ceiling it's state hidden danger the brackets and immediately one probably he's putting the pressure he's not he wasn't in the case of the experts no matter how he may have made this spontaneous common i mean what are we supposed to do with it he's a fact witness and he observed at the bracketed pole loose he's entitled to give that opinion as a fact but as we say i took this this as a construction worker can give his opinion as to what happened in terms of what he saw this is what mr johnson saw that the brackets had pulled loose that's the same problem as a hidden danger and just before i leave this point i just want feet left the ground and he ends up on the ground but the reality had to go through the railing and he didn't break it so the really detached the railing under the code under the the cold should have been able to withstand him hitting it and it didn't so that's the circumstantial evidence  commit you can forgive your sins they come forward there it is and somebody makes a decision that's usually oh we have an option that says you can either go to super court or you can come to the commission take your choice because the employer has been bad and did not do what he or she should have done before the eve of trial so that you can get that burton i shifting instruction then you're an awkward to get what you need and i do want to say it's not willful violation it's knowing violation and there is a difference there because what would be intent knowingly violates is a different standard closer connection so i just want to point that out there as well that there is not intent required here it is knowledge not intact and you can run once and you can have you can have constructive knowledge but you