http://www.state.il.us/court/OPINIONS/WorkersComp/2007/August/1062566WC.pdf

WORKERS' COMPENSATION
COMMISSION DIVISION
FILED: August 21, 2007

No. 1--06--2566WC

IN THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

WORKERS' COMPENSATION COMMISSION DIVISION
WEST CAB CO., INC., NORTHWEST ) Appeal from the Circuit Court
CAB CO., INC., and NORTHWEST ) of Cook County
PACKAGE DELIVERY, INC., ))
Plaintiffs-Appellants, ))
No. 03--L--51466
v. ))
THE INDUSTRIAL COMMISSION )
et al. (Kareem Verdun, )
individually, and Mark Louis )
Gray and Marcus Jamal Gray, )
By their mother, Vivian )
Jackson, children of Michael )
Gray, deceased), ) Honorable
) Rita M. Novak
Defendants-Appellees. ) Judge, Presiding

JUSTICE HOLDRIDGE delivered the Opinion of the Court:
Michael Gray, leased a taxi vehicle from Respondent West Cab Company, on a regular basis. On August 7, 1994, Gray was in the leased taxicab when he was shot and killed by an armed assailant.
An Application for Adjustment of Claim was initially filed by the deceased's mother, Clennie Gray, on September 2, 1994, identifying the decedent as the claimant. Subsequently, the 1-06-2566WC 2 amended applications were filed naming certain dependent children of Gray as claimants. Each of these applications were filed solely against West Cab Company. A subsequent amended application added Northwest Cab Company and Northwest Package
Delivery Service, Inc. as respondents.
Following multiple hearing dates, the arbitrator issued a decision on March 5, 2002, finding claimants had failed to prove the deceased, Michael Gray, was an employee of any of the three
respondents, holding that Gray was an independent contractor who
merely leased a taxicab from West Cab. While the hearing before
the arbitrator included several other issues, the decision did
not address any other issue due to the finding on the threshold
issue of employer/employee relationship.
Claimants sought review before the Commission, which
reversed the arbitrator's decision. On January 30, 2003, in a
two to one decision, the Commission found that the deceased was
an employee of all three corporations at the time of his death,
and that it would retain jurisdiction over the remaining
questions and not remand the case back to the arbitrator for a
further decision. This final procedure of retaining the case was done without objection from either side.
On October 28, 2003, again by a two to one decision, the Commission found that Michael Gray’s death arose out of and in 1-06-2566WC 3 the course of his employment, with all three respondents, and awarded benefits to the claimants. The respondent corporations then appealed to the Cook County circuit court, which confirmed the Commission's decision. Respondents then filed this appeal.

We reverse, finding that Gray was not an employee of any of the respondents.

BACKGROUND

Sometime during the early morning hours of August 7, 1994, in Franklin Park, Illinois, Michael Gray was shot and killed while in a taxi cab leased to him by the West Cab Company.

I've read this 30 page case pretty carefully, and I am convinced that the result was a terrible one in large part because the lawyer for the driver didn't handle the case right before the arbitrator or before the Appellate Court.

Worse yet, he failed to appeal it to the Supreme Court of Illinois. By failing to appeal it, the decision against the cab driver's survivors became final. They walked away with a fist full of air rather than a fist full of money: benefits under the Illinois Workers Compensation Act.

This decision turns on the nine factors that go into having control over drivers. The driver's survivors only proved two of the nine. They failed to present evidence of several others that they courd have and should have: i.e. how the cab owner provides repairs to the vehicles and provides tow services when the cabs break down.

This decision could easily have gone the other way, and there was a strong dissent that reflects that fact.

I do believe that a good lawyer presenting the facts of this case more carefully would have won the opposite result - full death benefits for Gray's surviving children.


Donald Nathan