Workers’ Compensation Reform
SB 3931 Sponsored by Sen. Dale Righter (R-Mattoon)
SUPPORT
SB 3931 establishes a primary cause standard: In Illinois, to establish medical causal connection in a workers’ compensation case, a petitioner must prove that an act or phase of the employment was “a causative factor” in the ensuing injury.[1] To be clear, a petitioner is not required to prove that an act or phase of the employment was the sole or principal cause of the injury.[2] He need only prove that an act or phase of the employment was “a causative factor.”[3] As anyone involved in the workers’ compensation industry in Illinois knows, this low burden of proof has led to an avalanche of compensable claims in Illinois; and it is certainly one of the reasons that Illinois is deemed to be a high cost state for workers’ compensation. Change is needed if Illinois is to compete with bordering states that can point to lower workers’ compensation costs when competing with Illinois for jobs.
Concerned with an increasing number of claims and soaring business insurance rates, Missouri enacted amendments to its workers’ compensation act in 2005 to restrict the types of injuries that are compensable.[4] Chief among these changes is a mandate that only those injuries in which work is the “prevailing factor” qualify for workers’ compensation.[5] Under the old law, any injury in which work was a “substantial factor” was compensable.[6]
In Missouri, prior to the 2005 amendments, an injury by accident or occupational disease was deemed to be compensable if it was “clearly work related.” [7] An injury by accident or occupational disease was deemed to be “clearly work related” if the work was a “substantial factor in the cause of the resulting medical condition or disability.” [8] This statutory language was interpreted by Missouri courts to simply require work exposure or the accident to be “a factor” in the claimant’s condition or in the claimant’s inability to work.[9]
Under the 2005 Missouri amendments, the new law states: “An injury by accident is compensable only if the accident was the “prevailing factor” in causing both the resulting medical condition and disability. The “prevailing factor” is defined to be “the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.” [10]
With respect to occupational disease, the new law states, in pertinent part: “An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.”[11]
The amendments had their intended effect almost immediately.[12] Missouri’s largest workers’ compensation carrier, Missouri Employers Mutual, announced a 5%, across the board, premium rate cut at the beginning of 2006.[13] The National Counsel of Compensation Insurance (NCCI) reported a 14.5% reduction in claims submitted in Missouri between June 2005-June 2008.[14] From June 2007- June 2008, NCCI reported a 2.5% reduction is claims submitted in Missouri. [15]
Perhaps the most telling effect of the 2005 amendment is the reduction in the number of occupational disease claims in Missouri. In 2004, the Missouri Division of Workers Compensation had 3,086 occupational disease claims; in 2005 there were 2,318.[16] In 2006, after the amendment, the number of occupational disease claims fell to 1,154. [17] In 2007, the number fell further to 964.[18]In 2008 there were 1,090; and in 2009 there were 1,223. [19]
Certainly not all of the positive effects referred to in the foregoing two paragraphs are solely attributable to the “prevailing factor” amendments. To be sure, the amendments changed thirty-two (32) sections of the Missouri Workers’ Compensation Act. [20] Examining all thirty-two (32) changes is beyond the scope of this paper. In addition, it is difficult, if not impossible, to specify a direct correlation between any one statutory change and the positive effects referred to above.
SB 3931 requires impartiality from arbitrators and commissioners: Notwithstanding the foregoing, this author would be remiss in not directing the reader’s attention to two additional changes that have certainly benefited employers in Missouri. As Illinoisans know, Illinois courts are required to liberally interpret the Illinois Workers’ Compensation Act.[21] Likewise, prior to the 2005 Amendment, Missouri courts were required to construe the Missouri Workers Compensation Act liberally.[22] The 2005 Missouri amendment changed things.
The 2005 amendment requires the provisions of the Missouri Workers’ Compensation Act to be construed strictly, and evidence is required to be weighed “impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts.”[23] In addition to this statutory change, Missouri specifically abrogated case law interpretations making reference to three of the most liberal accident-precedent cases.[24]
SB 3931 eliminates benefits for injuries caused by alcohol or drugs: “More than 70 percent of substance abusers hold jobs; one worker in four, ages 18 to 34, used drugs in the past year; and one worker in three knows of drug sales in the workplace.
Americans consume 60 percent of the world’s production of illegal drugs: 23 million use marijuana at least four times a week; 18 million abuse alcohol; 6 million regularly use cocaine; and 2 million use heroin.
In the workplace, the problems of these substance abusers become problems for employers and co-worker safety. They increase risk of accident, lower productivity, raise insurance costs, and reduce profits.” (source: American Council for Drug Education website)
Twenty-seven of states have acted to combat drug and alcohol abuse in the workplace by reducing or eliminating workers’ compensation benefits for workers who injure themselves due to abuse of alcohol or drugs. Three states have a “hard” forfeiture and allow the denial or reduction of workers’ compensation with a positive drug or alcohol test, or a refusal to test. In the majority of states, the law creates a defense to the action if intoxication is proven, and the intoxication “caused”, “resulted in”, or “proximately caused” the accident; or the accident was “due to” intoxication. The employer usually has the burden to prove intoxication, though some states create a presumption of intoxication and proximate cause upon a drug or alcohol test above a certain level, which can be rebutted by the employee upon showing either that he was not intoxicated or that the intoxication did not cause the accident.
Many of the states allow denial of compensation upon intoxication by “illegal” drugs; “controlled substances not prescribed by a physician” or the like. Impairment due to prescription medication is therefore excepted from the denial. Insofar as the state law may be limited to “controlled substances”, this may not include marijuana intoxication, since marijuana may not be defined as a controlled substance.
The effect of the causation requirement is best illustrated by two examples. In the first, an employee is lifting a forty pound piece part out of a tub, in a normal manner such as all other employees do, and injures his shoulder. He takes a post accident test and is found to have a blood alcohol level of 0.24. In this case compensation will be awarded; while the test is clearly indicative of intoxication, the intoxication did not cause the accident. In the second, an employee is driving a forklift at an excessive speed, turns wide, and crashes into a rack, spilling its’ contents onto him resulting in injury. The post accident test shows the same 0.24 BAC. In this case the employer stands a much better chance of proving not only the intoxication but that the intoxication caused the accident.
Illinois case law provides that an injured employee’s intoxication will bar recovery under the Act if the intoxication is the sole cause of the accident or is so excessive that it constitutes a departure from employment. (Parro v. Industrial Commission)
What this proposal does:
- Compensation is not payable if the injury was caused primarily by the intoxication of the employee, or if the injury was caused by the influence of alcohol or any narcotic drugs, barbiturates, or other stimulants not prescribed by a physician, or by the combined influence of alcohol and any other drug or drugs that affected the employee to such an extent that the Commission determines that the intoxication constituted a departure from employment.
- Evidence of the concentration of alcohol or a drug or combination in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath, or other bodily substance, is admissible in any hearing to determine compensability by the Workers’ Compensation Commission. If the employee refuses to submit to such analysis, it is presumed, in the absence of substantial evidence to the contrary, that the accident was caused by the intoxication of the employee.
- If there was at the time of the injury 0.08% or more by weight of alcohol in the employee’s blood or breath or there is any amount of a drug, substance or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act, a controlled substance listed in the Illinois Controlled Substances Act, or an intoxicating compound listed in the Use of Intoxicating Compounds Act, it is presumed, in the absence of substantial evidence to the contrary, that the injury was caused by the intoxication of the employee.
- Percentage by weight of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood. Percentage by weight of alcohol in the breath shall be based upon grams of alcohol per 210 liters of breath.
SB 3931 requires PPD and total disability claims to be certified by a physician and defined by objective measurements using the current edition of the AMA “Guides to the Evaluation of Permanent Impairment” in determining the level of disability.
Objective measurements include, but are not limited to:
- Loss of range of motion;
- Loss of strength; and
- Measured atrophy of tissue mass consistent with the injury.
Without any changes to the law in Illinois, it is quite likely that workers’ compensation costs will continue to soar. As such, the legislature in Illinois may wish to consider changes to the Illinois Workers’ Compensation Act that are commensurate with those referred to in this paper. Change may be needed if Illinois is to compete with bordering states that can point to lower workers’ compensation costs when competing with Illinois for jobs.
Courtesy of the Illinois Chamber of Commerce’s Employment Law Council
[1] Sershon v. Industrial Commission, 63 Ill.2d 395, 399 (1976).
[2] Id.
[3] Id.
[4] Adele Nicholas, Workers Comp Decision a Mixed Bag for Employers: Court mostly upholds “prevailing factor” law (visited February 7, 2010) <www.insidecounsel.com/Issues/2009/May-2009/Pages/Workers-Comp-Decision-a-Mixed-Bag-for-Employers.aspx
[5] Id.
[6] Id.
[7] Mo. Rev. Stat. § 287.020.2 (2000) and Mo. Rev. Stat. § 287.067.2 (2000).
[8] Id.
[9] Letter from Chris Archer, Attorney, Archer, Lassa and Mchugh, LLC, to Scott McCain, Attorney, Inman & Fitzgibbons, Ltd. (January 14, 2010) (on file with author).
[10] Mo. Rev. Stat. § 287.020.3(1) (Supp. 2005).
[11] Mo. Rev. Stat. § 287.067.3 (Supp. 2005).
[12] Adele Nicholas, Workers Comp Decision a Mixed Bag for Employers: Court mostly upholds “prevailing factor” law (visited February 7, 2010) <www.insidecounsel.com/Issues/2009/May-2009/Pages/Workers-Comp-Decision-a-Mixed-Bag-for-Employers.aspx
[13] Id.
[14] Interview with Sheelah R. Yawitz, Missouri Merchants & Manufacturers Association (January 22, 2010).
[15] Id.
[16] Interview with Jolene Watkins, Research Analyst, Missouri Division of Workers’ Compensation (February 4, 2010).
[17] Id.
[18] Id.
[19] Id.
[20] Letter from Chris Archer, Attorney, Archer, Lassa and Mchugh, LLC, to Scott McCain, Attorney, Inman & Fitzgibbons, Ltd. (January 14, 2010) (on file with author).
[21] Flynn v. Industrial Commission, 211 Ill.2d 546, 556 (2004).
[22] Mo. Rev. Stat. § 287.800 (2000)
[23] Mo. Rev. Stat. § 287.800.1 and § 287.800.2 (Supp 2005).
[24] Letter from Chris Archer, Attorney, Archer, Lassa and Mchugh, LLC, to Scott McCain, Attorney, Inman & Fitzgibbons, Ltd. (January 14, 2010) (on file with author).
