Editor’s comment: We are certain there were lots of changes to the Illinois Workers’ Compensation Act in 2005. We are fairly confident it hasn’t caught up to doctors, hospitals and other healthcare billers. We do feel the recent ruling from the Appellate Court in Holtkamp may affect what is happening out there and wanted to give you our thoughts.

Plan A, we urge everyone to remember one thing, if a claim is accepted bills are to be sent to the employer or insurance carrier/TPA—take the worker out of the loop and bill the employer or its carrier/TPA directly. The Act says:

Section 8.2 (d)
When a patient notifies a provider that the treatment, procedure, or service being sought is for a work-related illness or injury and furnishes the provider the name and address of the responsible employer, the provider shall bill the employer directly. The employer shall make payment and providers shall submit bills and records in accordance with the provisions of this Section. All payments to providers for treatment provided pursuant to this Act shall be made within 60 days of receipt of the bills as long as the claim contains substantially all the required data elements necessary to adjudicate the bills. In the case of nonpayment to a provider within 60 days of receipt of the bill which contained substantially all of the required data elements necessary to adjudicate the bill or nonpayment to a provider of a portion of such a bill up to the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this Section, the bill, or portion of the bill, shall incur interest at a rate of 1% per month payable to the provider.

This sounds pretty simple to us. If the medical care/treatment is for a work-related injury, the medical caregiver has to get the name of the employer and/or insurance carrier/TPA from the patient. When you have it, send the bills and records to that contact from then on. Don’t send them to the patient.

So, who pays for the copies of original medical records being sent to the “employer” or insurance carrier/TPA? Who pays for “substantially all the required data elements necessary to adjudicate the bills” as the statute says? Well, under Holtkamp, it says you cannot force the healthcare giver to make free records or unlimited records for a $20 witness fee but you can agree on whatever is fair. Our vote is for the medical caregiver to send/fax/pony express free bills and free records and free whatever, so long as you are getting paid in a timely fashion. You don’t necessarily have to make a complete copy of your entire patient chart, but if you are seeking to get paid for surgery, send the surgical report and other supporting tests and data. Then start adding 1% per month to outstanding balances.

Plan B, what is supposed to happen if there is a fight? What do you do if the accident injury isn’t accepted under WC but the employee is litigating the issue? Can the medical caregiver still continue to seek payment? Well, the law says:

Section 8.2(e-15)
When there is a dispute over the compensability of or amount of payment for a procedure, treatment, or service, and a case is pending or proceeding before an Arbitrator or the Commission, the provider may mail the employee reminders that the employee will be responsible for payment of any procedure, treatment or service rendered by the provider. The reminders must state that they are not bills, to the extent practicable include itemized information, and state that the employee need not pay until such time as the provider is permitted to resume collection efforts under this Section. The reminders shall not be provided to any credit rating agency. The reminders may request that the employee furnish the provider with information about the proceeding under this Act, such as the file number, names of parties, and status of the case. If an employee fails to respond to such request for information or fails to furnish the information requested within 90 days of the date of the reminder, the provider is entitled to resume any and all efforts to collect payment from the employee for the services rendered to the employee and the employee shall be responsible for payment of any outstanding bills for a procedure, treatment, or service rendered by a provider.

Again, this procedure seems clear and concise and it doesn’t take a rocket scientist to follow it. Following the first section above, get the name of the employer or insurance carrier/TPA. As the patient and the contact with the insurance carrier/TPA:

·       Are our bills accepted? If so, follow the first section cited above.
·       If the bills are disputed, follow Plan B and start sending reminders to everyone. Diary your file ahead every ninety days to continue to follow up.

Plan C—What does the healthcare provider do if the matter settles between the patient and the insurance carrier/TPA and you are left out of the loop? Well, that is becoming more and more common in Illinois. What we are telling the healthcare providers to do is to then start normal collection procedures against everyone—go after the patient, employer, insurance carrier/TPA.

In Hagene v Derek Polling Construction, some of the bills were not paid and remained in dispute after approval of settlement and closure of the claim. The front of the contracts had the box checked to indicate “all medical bills” were paid and the back of the contracts said the settlement was a compromise of all benefits owed under the Act. In contrast, the claim for TTD said it was disputed on the front and to refer to the reverse of the document for settlement terms. After settlement, the patient learned almost $20K in medical expenses incurred prior to settlement remained unpaid by the employer, insurance carrier/TPA or anyone else. The Appellate Court ruled the settlement included all related medical bills.

If the contracts did not have the box checked on the front and the reverse of the contracts indicates all bills were claimant’s sole responsibility; the medical caregiver should be able to recover from the patient in typical collection litigation. Either way, we urge you to avoid that by making sure to continue to send ninety-day reminders to the patient, the employer, insurance carrier/TPA and lawyers for both sides.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

On July 6, 2010, emergency rules took effect that change the reimbursement method for implants and add accredited Ambulatory Surgical Care Facilities
(ASCFs) to the ASTC fee schedule.  The Commission filed the emergency rules with the Illinois Secretary of State for publication in the Illinois
Register. Simultaneously, the Commission filed the same language to go through the normal rule-making process.

The amendment makes two changes to Section 7110.90:

1. It changes the reimbursement method for medical implants from 65% of normal charge to 25% over the manufacturer’s invoice price less rebates,
plus actual and customary shipping costs incurred for the implant.

2. It provides that Ambulatory Surgical Care Facilities (ASCFs) accredited by AAAASF, JCAHO, AAAHC are eligible for reimbursement under the ASTC fee
schedule. Previously, the rule said the ASTC fee schedule applied only to Ambulatory Surgical Treatment Centers licensed by the Illinois Department of Public Health.

Treatment on or after 7/6/10 should be paid according to these new rules.

Comments about the amendment should be submitted in writing by August 30 to:

Darrell Widen
Assistant General Counsel
Illinois Workers¹ Compensation Commission
8-281 JRTC
100 W. Randolph St.
Chicago, IL 60601
312-814-8770
darrell.widen@illinois.gov

To view the emergency rules, go HERE.

Governor Pat Quinn has appointed Daniel Donohoo as commissioner.

Commissioner Donohoo holds a B.S. degree in Business Administration from Southern lllinois University, and a J.D. degree from Cooley Law School. He served as the Madison County Recorder of Deeds for 21 years, and operated his own accounting firm for 17 years.

After completing the legally-required training, Commissioner Donohoo will be assigned a panel and hearing sites.

Daniel resigned as the Madison County Recorder of Deeds on January 31st, 2010.

From an article earlier this year:

EDWARDSVILLE – Madison County Recorder of Deeds Dan Donohoo said Friday he is resigning as of Jan. 31, and added that he has a lot of people to thank for his 21 years in office.

“Today, I am not looking for votes, but instead, giving a vote of thanks,” he said in his resignation letter.

Donohoo served four years as a County Board member before he was elected recorder.

He thanked his staff, family, other officeholders and friends.

He said he has learned much during his time in office, such as the importance of committed employees.

Apparently, he also can be thankful that he has kept his sense of humor.

“I have also learned from my fellow officeholder, Madison County Auditor Rick Faccin, that the only thing you should ever lie awake at night worrying about is not county government or the Recorder’s Office, but whether or not the Cardinals will finish in first place.

For the rest of the story from The Telegraph about Daniel Donohoo’s resignation, please click here.

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

[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).

Editor’s comment: Last month the Medicare Secondary Payer Enhancement Act of 2010 (MSPEA) was introduced in the U.S. Congress as proposed legislation. It contains some significant changes from the current law, the Medicare Secondary Payer Statute (MSP). Many observers on both sides feel the current Medicare Secondary Payer (MSP) system is inefficient and creates problems for Medicare beneficiaries, the Centers for Medicare and Medicaid Services (CMS), and anyone who settles a claim involving Medicare liability. Proponents of the new law feel the Medicare Secondary Payer Enhancement Act of 2010 (MSPEA) will improve the system to speed the return of funds to the Medicare Trust Fund and promote settlements.

The MSP system was appropriately intended to ensure Medicare and U.S. taxpayers do not pay for health services when another party has primary responsibility – either as a group health plan, workers compensation plan, or other party with liability for the care provided. Unfortunately, current inefficiencies and problems in the system make it nearly impossible for many parties to determine how much is owed to Medicare. If an entity with MSP responsibility disagrees with Medicare’s after-the-fact calculation, it does not even have a process for appealing their decision, regardless of how inappropriate or flighty it might seem.

The MSPEA departs from the current law in several significant ways. First, MSPEA proposes a “final demand” may be obtained prior to any relevant settlement, judgment, award or other payment. The current law only allows a “final demand” to be made after settlement, judgment, award or any final payment.

Additionally, the new law provides if CMS fails to respond in a timely manner, it may absolve the claimant from any liability and obligation to pay. The change is proposed to help shorten the current process and provide more accurate estimates for all parties.

Alternatively, MSPEA also would allow for a “good faith” estimate based upon billing data of the conditional payment amount to be tendered directly to CMS. In response, CMS would be able to challenge the estimate.

The MSPEA proposes an “extended” right of appeal to “the applicable plan involved, or an attorney, agent or third party administrator on behalf of such applicable plan”. MSPEA also proposes a change of wording under Section 111 which currently reads, “shall be subject to a civil money penalty of $1,000 for each day of non-compliance” to “may be subject to a civil monetary penalty of up to $1,000”.

MSPEA proposes exempting claims under $5,000, imposing a 3 year statute of limitations on the U.S. government and discontinues the use of social security and health identification numbers for reporting with CMS.

Keep your eyes on this spot for progress on passage and implementation of the new law. This article was drafted by our intrepid paralegal-soon-to-be-lawyer Nicole R. Zachary and we thank her for her research and hard work.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Synopsis: Well, it isn’t a systemic change but we are happy to report some monetary relief for Illinois employers based upon settlement of the Illinois State Chamber lawsuit regarding constitutionality of the 2003 enacted WC surcharge—send our law partner Shawn R. Biery an email or drop him a line and he will be happy to handle your claim for recovery or show you the ropes on how to get it.

Editor’s comment: Taking you back down memory lane, we recall the first Chairman appointed by our current Governor-out-on-bond, supported a change to the funding of the later renamed Illinois Workers’ Compensation Commission. It was the new Chairman’s goal to follow the model of the State of Missouri and a number of other states to move the Commission out of being funded by the General Revenue Fund for our state and into a new anti-business insurance and payroll surcharge which didn’t require him to go to the legislature and the Governor to make the changes he wanted to make at the Commission. We assure you some of the changes he wanted were to double or triple the number of Arbitrators, bring in or “appoint” any number of Plaintiff/Petitioner attorneys to serve in his image and likeness and more than double the budget of the Commission.

What he got was the Illinois Industrial Commission Operations Fund Surcharge. This was supported the Democrat House, Senate and Governor because they were then free to spend the monies they used to have to spend for the Commission on other fun stuff. In our view, the problems were two-fold:

A. Illinois business now had to fully fund the Plaintiff/Petitioner-oriented Commission to provide new laws and rules to be administered by folks beholden to Illinois labor;
B. The monies were used to basically increase workers’ compensation costs in this state to the stratospheric levels they have currently reached;
C. The surcharge added a new anti-business fee which would more than exponentially increase the budget of the Commission.

On April 22, 2004, the Illinois State Chamber of Commerce filed suit against the State of Illinois boldly challenging the newly imposed fees created by then-Governor Blagojevich’s new Industrial Commission Operations Fund Surcharge. The complaint alleged the statute imposed a surcharge on employers’ and workers’ compensation carriers intended to generate $31-million to fund the operations of the Industrial Commission, even though the actual budget for the Industrial Commission was dramatically lower. The complaint alleged the fees were unconstitutional and improper. The fee imposed the total cost of workers’ compensation administration and adjudication solely on Illinois employers. Most important, the bill over-funded the Industrial Commission for no particular reason.

In November 2004, Circuit Court Judge Patrick McGann declared unconstitutional the Industrial Commission Operation Fund Surcharge. That ruling called into question hundreds of business fees the state enacted or increased at the time. McGann ruled the surcharge created an arbitrary class of taxpayer and violated a provision of the state constitution that requires all new fees to operate like existing fees, which raise only enough money to cover specific activities. In the case of the workers compensation insurance surcharge, the fee ostensibly was to pay the cost of operating then-named Illinois Industrial Commission.

McGann ruled the surcharge had no “reasonable relation” to the cost. He noted in his ruling the workers compensation surcharge brought in $31 million and $22 million of it was not going to the Commission but to the state’s general fund. “The surplus resulting from this fee increase was clearly anticipated,” McGann wrote in his ruling. He added, “This is clearly beyond the role of fees in the financing of governmental operations.”

The Illinois Supreme Court later ruled McGann correctly refused the state’s request to dismiss the case, but added he had acted prematurely in ruling for the State Chamber and sought more factual findings. State Chamber President Doug Whitley was furious to see our highest court not simply note the State agreed with all the allegations and affirm the ruling. The litigation then ran on for five-six more years.

At present, the parties have reached a class action settlement. Your organization may be able to get monies back. Preliminary approval for settlement of the lawsuit has been provided by the Circuit Court of Cook County. The sum of $3,300,000 which now resides in a Protest Fund will be placed in a claim fund to be distributed to class members who can support their claim for repayment. The support for claim can be made with documentation of cancelled checks, invoices showing the surcharge or other proofs of payment as long as they make a claim for repayment during the claims period in the appropriate manner. The method to make a claim is currently proposed to be with either mailing a claim form to the Administrator Robert Langendorf or emailing the Administrator at robert.langendorf@gmail.com.

The amount of refund will be limited to 45% of the Surcharge paid between July 1, 2003 to June 30, 2004 and 10% of the Surcharge paid July 1, 2004 to June 30, 2009. The current proposed settlement agreement can be seen on the web at IWCC-Chamber preliminary settlement agreement and the preliminary approval order can be found on the web at IWCC-Chamber settlement preliminary approval ORDER.

We urge our readers to continue to support State Chamber President Doug Whitley and the Illinois State Chamber of Commerce that is clearly out on point in trying to reform workers’ compensation in this state.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Synopsis: Why Illinois has to reform, modify or cap wage loss differential benefits in our workers’ comp system.

Editor’s comment: Well, here you have it; this is our heart-felt plea to everyone across the state to understand this benefit is among the worst and most anti-business workers’ comp benefit in the whole country. Why do we make that statement? Well, here are just a few reasons:

• Wage loss differential benefits are just about impossible to “defend.”
• Wage loss differential benefits strongly encourage malingering and manipulation of jobs;
• Wage loss differential benefits are crushing Illinois business and our struggling economy;
• Wage loss differential benefits almost never compensate or match actual wage loss;
• Finally, wage loss differential claimants in Illinois never actually receive weekly wage loss differential benefits!!!

Wage loss differential benefits are just about impossible to defend

We are seeing case after case after case across the state where claimants are getting hurt, laid-off or out of work and then seek to move their simple arm injury or foot strain into the wage loss differential setting. We have one trucking client with a terminal where every single work comp claimant is now seeking wage loss differential benefits. We have one hospital client where the risk manager recently wanted to review/audit her thirty biggest claims—of the thirty biggest claims, twenty-two or about three out of four major claims were wage loss differential claims. We are seeing claims from construction workers who have two/three/four wage loss differential claims for what are supposed to be life-changing disabilities—well, how do you have four different claims with life-changing disabilities?

The problem we have with all of these claims is the simple model—anyone with a “permanent restriction” from a doctor in this state and who is out of work for more than a day is now seeking wage loss differential benefits. What is even worse is what we call “imputed” wage loss claims where Illinois claimant attorneys and Arbitrators will tell the defense side to “assume” a moderate wage might be obtained by the injured worker and settle it based on presumed and not actual wage loss. All of it leads to the problem we will discuss below—there is no intention to actually compensate true wage loss; it is just a lot more money to give the injured worker a giant wage loss settlement than the dramatically lower settlement for loss of use of the leg or hand or person as a whole.

Wage loss differential claims encourage malingering and job manipulation

We have told our readers over the years, wage loss differential encourages everything bad about compensation for a work-related injury. Why? Well, one goal for the injured worker is to stay off work and not find a job as long as you can while your lawyer and a friendly Arbitrator try to convince the defense side to “impute” wage loss, as we indicate above.

In the alternative, wage loss claims also encourage what we call “bad job, right away” where the injured trucker or nurse or construction worker immediately gets a low paying job to maximize their wage loss claim while the claimant attorney then runs to the Commission to force a hearing and source a monster settlement so claimant can then drop the low-paid position and go back to precisely what they were doing prior to injury at the same rate of pay.

We also feel wage loss differential benefits cause unions to stand in the way of bringing injured workers back to modified work, as they should be required to do under ADA. The unions know if they can temporarily disqualify a worker from a moderate to heavy job, wage loss differential benefits kick in. We assure our readers Illinois unions take advantage of the fact most managers don’t understand the nuances of workers’ compensation in negotiations and don’t demand modified work be made continuously available to injured workers. We remain amazed to see how unions who do this are not sued by the EEOC for the clear violation of ADA such shenanigans present.

Wage loss differential benefits are crushing Illinois business and our struggling economy

We are certain our legislative leaders and others have no true idea how deleterious wage loss differential is to Illinois business. Our favorite example was our review of a file we were asked to take over on appeal. The worker was relatively young—23 years of age. He had repetitive-trauma wrist injuries and moved from a $30 dollar an hour job to a lighter job paying $15 per hour. In her ruling, the Arbitrator followed the law and awarded about $25,000 per year as wage loss differential benefits. Please note the young man was entitled to that money on a tax-free basis for life.

The full undiscounted value of the award was about $1.1 million dollars. The present value was about $450,000! Please note this young man had a post-injury job that paid very well for central Illinois. Please also note the employer was going completely ballistic. The company president could not fathom how he had to raise and pay that kind of money when similar operations in other states would not have required him to do anything other than simply give the kid a job.

Please also note wage loss differential limits were increased by the 2005 Amendments to the Workers’ Comp Act—an injured worker can now receive up to $47,967.40 per year on a tax-free basis for life. As we have told our readers in the past, for a twenty-five year old with a fifty-year life expectancy, a max rate wage loss differential award would have a full, undiscounted value of $2.4 million dollars!!

It is our view the Illinois construction, trucking and heavy manufacturing industries are never going to recover and compete with our sister states with this immense and growing risk floating out there. Please don’t shoot the messenger—we are simply reporting the facts.

Wage loss differential benefits almost never compensate or match actual wage loss

We are very confident any effort to modify, limit or alter wage loss differential benefits will be met with howls of dismay, discomfiture and disharmony from the forces of the Illinois Trial Lawyers Ass’n and Illinois labor. In response, the problem we point out is almost no one ever actually receives wage loss benefits in this state. The attorneys who work at Keefe, Campbell & Associates have combined legal experience in excess of one hundred years—not one of our partners or associates has ever heard of a wage loss differential claim that wasn’t “lumped out” to give the injured worker and claimant’s counsel a fountain of money. When we talk of “imputed” wage loss, we assure you the concept isn’t being used to give the employee the lifetime equivalent of temporary partial disability—the idea is to find a palatable way to give the worker a large lump sum that will always exceed specific loss of use the affected body parts.

We also point out a comment by one of our more astute readers who indicates the wage loss differential concept would make more “sense” if it was a living and vibrant thing where the employee receiving such benefits was audited once a year or once every other year or whatever to insure they still needed the money from their employer. In that fashion, if they recovered financially from the injury, the employer could get relief from having to keep the worker on the dole—this concept won’t work in Illinois.

In their ruling in Cassens Transport v. Industrial Commission, our Appellate Court rendered modification of Illinois wage loss differential claims almost impossible. The members of the court judicially created a “rule” in which they found wage loss differential benefits cannot ever be modified unless the injured worker’s disability changes—we have always felt this renders any future change to wage loss differential benefits to be effectively impossible. If an injured worker gets wage loss differential benefits due to an operated shoulder or low back, their “disability” can’t change because medical science hasn’t found a way to remove the permanent effects of surgery. Trust us, professional baseball players recover from surgeries every day to go on to pitch no hitters, steal bases and slam long home runs; in the weird world of Illinois workers’ comp, no one ever “recovers” in a similar sense.

The logical issue we have always had with the Cassens Transport ruling is wage loss differential benefits are initially set based on two factors—lost wages and disability. We have always felt it inconsistent to then mystically refuse to look at both factors if the injured worker later finds a way to make a lot more money. In a setting where a worker is getting for example, $25,000 a year from his employer and is now making $150,000 a year despite his post-injury disability, the legal requirement for continued payment of wage loss differential benefits takes on the appearance of being highway robbery.

We also point out the Illinois statute for wage loss differential benefits is routinely interpreted as being a lifetime benefit. We are confident almost everyone over the age of five knows extraordinarily few workers work all their lives. There is only one reason wage loss differential benefits are viewed as a lifetime benefit—it maximizes lump sum recovery by the injured worker and the payout by the employer or insurance carrier/TPA to do so. As we have said and will keep saying—wage loss differential benefits almost never compensate or match actual lost wages.

Finally, wage loss differential claimants in Illinois never actually receive weekly wage loss differential benefits!!!

As we advise above, when an injured worker is receiving a large lump sum in lieu of wage loss differential benefits, please understand that isn’t wage loss recovery, it is just a large lump sum of money. When one understands an Illinois construction company may run a $5 million dollar building project to make $500,000 in profit; one wage loss differential lump sum settlement can eat up all the profit from a major construction project in a fell swoop. Two wage loss differential claims on the same construction project will rapidly turn a $500K profit into a loss.

When you start to understand the injured worker in this state doesn’t have to have what your mom and dad thought was an actual “injury” to get such largesse, like the 23-year-old with “repetitive trauma” we mention above, you begin to understand how galling this benefit is to Illinois employers and insurance carriers/TPAs. One easy path to stop the silliness in Illinois is to follow the lead of other states and cap such benefits at ten years or so.

Whatever we do our legislative leaders and administrators and everyone involved in this industry has to take a hard and fresh look at this concept moving forward.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Synopsis: Are the ever-rising Illinois workers’ comp rates now wrong? Should we demand the IWCC correct them?

Editor’s comment: At some point in December of each year for several decades, the IWCC posted a new PPD maximum rate. When that happened, the new and higher PPD maximum rate had to be retroactively implemented by claims handlers for claims occurring in the period backward to July of the applicable year and then for future claims until next July. This year nothing happened! The rates simply remained the same.

Well, inquiring minds need to know. Turns out the statewide average weekly wage (or SAWW) went down!! For the first time since the SAWW was implemented to make WC rates spiral up, one would have thought Illinois business would get rate relief in the workers’ comp arena. We learned from George Picha of Picha and Salisbury and KC&A’s own WC rate guru, Shawn R. Biery, the Commission did not change the existing maximum PPD rates since the SAWW actually decreased and also for the reason the Act does not contain a specific provision authorizing a corresponding decrease in the maximum rates.

The Commission’s own website says:

Every six months, the Illinois Department of Employment Security publishes the statewide average weekly wage (SAWW). The SAWW sets the maximum and minimum weekly benefit levels for workers’ compensation. To calculate the SAWW, total wages are divided by the total number of employees in the past six months. Some employees worked every day, and some worked only a few days, but all are counted together. (Federal workers and self-employed workers are excluded.)

Although every attempt is made to calculate the workers’ compensation rates in an accurate and reliable manner, only the Illinois statute governs. Where there is a disagreement between the statute and the IWCC’s calculations, the statute is correct.

*As provided in Section 8(b)4, there is no increase in the benefit rates for 1/15/10 – 7/14/10 because the SAWW decreased.

In a website we have saluted for years, we remain stunned to see they didn’t post their decision as web news or something of note.

We then understood there may be no need for a specific statutory provision authorizing the Commission to reduce the maximum rates since Section 8(b)4 mandates the maximum TTD rate “shall be increased to 133-1/3% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.” Section 8(b)4.1 further states: “Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.”

If you do the math, by leaving the current maximum TTD rate at $1,243.00, that number would actually represent 134-3/4% of the current $922.45 SAWW and not 133-1/3% as the statute patently outlines. The current published minimum rate for death, PTD, amputation and enucleation cases would actually be 50.53% of the current SAWW and not 50%. We feel where the current maximum TTD rate applies our readers may want to consider paying $1,229.93 per week, and in Section 8(b)4.1 cases, $461.23 per week. Please note this recommendation may result in litigation to debate this statutory issue.

We have not researched the issue of computing the accurate maximum PPD rate, if the rate retroactive to 7/1/09 is based upon the $922.45 SAWW, there should be a proportionate decrease for the same reason. There is no question the maximum TTD and minimum rates for Section 8(b)4.1 cases are specifically tied to a stated percentage of the SAWW, a specific provision in the Act authorizing a decrease in the rate when the SAWW decreases is unnecessary and, in our view, should be presumed to be the law.

We need your thoughts on all of this. In order to push for a change favorable to Illinois business, we need to take this matter to the courts on what is called a writ of mandamus. A writ of mandamus can be used to have a court compel an administrative agency, such as the IWCC to act and follow the provisions of the law. In Illinois, one may petition the circuit courts for a writ of mandamus “to command a public official to perform some ministerial nondiscretionary duty in which the party seeking such relief has established a clear right to have it performed and a corresponding duty on the part of the official to act.” The authority of the respondent to comply with the writ must also be clear. Finally, Petitioner must show that a demand was made on the official concerned but he or she refused to comply. This is to make sure the officer in question has the option of performance before the court exacts compliance. Please remember the Illinois courts may follow the law and they may make it up as we go along.

So we are asking all of our readers, should we take this to the courts? Well, if we don’t, Illinois business is certain to continue to overpay benefits. And if the economy stays flat and the SAWW goes down even further, the gap will increase. We invite your thoughts and comments. We have made inquiries and the Illinois State Chamber may consider supporting these efforts if this is important to Illinois business.

Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by 
Eugene F. Keefe, Michael J. Danielewicz, John P. 
Campbell, Joseph R. Needham and Shawn R. Biery with 
the goal of providing high-quality and cost-effective 
civil litigation services for the defense of 
self-insured employers and insurance carriers.

Workers’ Compensation Reform

HB 6159 Sponsored by Rep. David Reis (R-Willow Hill)

SUPPORT

HB 6159 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][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] 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.”

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.

HB 6159 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]

HB 6159 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.

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 Jay Dee Shattuck

[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).

Workers’ Compensation Injuries Caused by Alcohol or Drug Use

HB 5697 Sponsored by Rep. Mike Zalewski (D-Chicago)

SUPPORT

Overview:  “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.

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 HB 5697 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.

Courtesy of Jay Dee Shattuck