WCLA MCLE Legislative Update Whats Happening With Workers

WCLA MCLE • Legislative Update: What’s Happening With Workers’ Compensation in Springfield • Tuesday April 7, 2009 • JRTC Auditorium in Chicago, IL • 12: 00 noon to 1: 00 pm • 1 hour general MCLE credit

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Injured Workers’ Benefit Fund PA 94 -277 • “Section 95. Applicability. The amendatory changes to the first paragraph of subsection (f) of Section 7 relating to payment for burial expenses, subsections (a) and (b) of Section 8, and subsections (h), (k), and (l) of Section 19 of the Workers' Compensation Act and subsections (k) and (k 1) of Section 19 of the Workers' Occupational Diseases Act apply to accidental injuries or diseases that occur on or after February 1, 2006. Section 98. Inseverability. The provisions of this Act are mutually dependent and inseverable. If any provision or its application to any person or circumstance is held invalid, then this entire Act is invalid. Section 99. Effective date. This Act takes effect upon becoming law. ” (July 20, 2005)

Injured Workers’ Benefit Fund PA 94 -277 • Section 4(d): “After July 1, 2006, the Commission shall make disbursements from the Fund once each year to each eligible claimant. An eligible claimant is an injured worker who has within the previous fiscal year obtained a final award for benefits from the Commission against the employer and the Injured Workers’ Benefit Fund and has notified the Commission within 90 days of receipt of such award. ”

HB 0011 (Arroyo) Retaliatory Discharge • Amendment to Section 4(h) of the WCA: “In the event that the employer, individually or through any insurance company or service or adjustment company, should seek to terminate or separate themselves from the relationship they had prior to the injury, the injured employee may amend his or her application for adjustment to allege violation of this Section. The Commission shall hear and determine whether a violation of this subsection 4(h) has occurred, in addition to a determination of the original application for adjustment. Remedies for violation of this subsection 4(h) shall include but not be limited to back pay to the date of unlawful separation, reinstatement to the position held prior to the unlawful termination or separation in addition to any outstanding medical services including all pharmaceutical, surgical procedures, physical and other form of recognized treatment methods designed to enhance recovery which are covered in this Act. In the aforementioned circumstance, the role of the Illinois Workers’ Compensation Commission is to ensure that the conditions set forth in this provision are met and to arbitrate its variance as necessary. ”

HB 0011 Retaliatory Discharge • See INTERSTATE SCAFFOLDING, INC. , 385 Ill. App. 3 d 1040 (2008): “(A)n employer, who terminates an injured employee and who discontinues the employee's temporary benefits, has the burden to establish (a) that the employee violated a rule or policy, (b) that the employee was fired for a violation of that rule or policy, (c) that the violation would ordinarily result in the termination of a non-disabled employee, and (d) that the violation was a voluntary act within the control of the employee and not caused by the employee's disability. If the employer establishes that its employee has engaged in misconduct constituting a constructive refusal to perform the work provided or to participate in the rehabilitation plan, then the burden shifts to the employee to produce evidence to rebut the employer's evidence, or to establish that his work-related injury contributed to his subsequent wage loss. If the employee establishes that the medical restrictions resulting from the work-related injury prevent him from securing employment at pre-injury work levels, temporary disability benefits should be payable for the loss of earning capacity. Under this framework, it is not sufficient to show that there is just cause for the termination. The employer must show that there is just cause for the employer's refusal to pay temporary disability benefits. This type of approach serves to prevent an employer from using an infraction of company policy as a pretext for terminating an injured employee and cutting off his temporary disability benefits and to protect an employee against harassment leading to voluntary termination, and it also serves to insulate an employer against unacceptable behavior that ordinarily would result in the termination of an employee. “ (Dissent)

SB 1594 (Hultgren) Alcohol & Drugs • Added to the end of Section 11: "Accidental injuries incurred while an employee is under the influence of alcohol or any illegal drugs, including, but not limited to those 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, or by the combined influence of alcohol and any drug or drugs, in violation of an applicable work rule, collective bargaining agreement, or employee policy shall be rebuttably presumed to not arise out of nor in the course of the employee's employment and the employee shall not be entitled to benefits pursuant to this Act. Evidence of the concentration of alcohol or any concentration of a drug or combination thereof in the employee's blood, urine, or breath at the time alleged, as determined by analysis of the employee's blood, urine, breath, or other bodily substance, shall be admissible in any hearing to determine compensability and shall serve as prima facie evidence to establish the rebuttable presumption. Testing procedures and threshold levels concerning the presence of alcohol or drugs in an employee's blood, urine, or breath at the time alleged shall be controlled by applicable work rules, collective bargaining agreements, or employee policies. ”

SB 1594 Alcohol & Drugs • Compare to Mc. Kernin Exhibits, Inc. , 361 Ill. App. 3 d 666 (2005): “As the Commission correctly held, in order for compensation under the Act to be denied on the basis that the claimant was intoxicated, the level of intoxication must be such that it can be said, ‘as a matter of law, that the injury arose out of his drunken condition and not out of his employment. ’ District 141, International Ass'n of Machinists & Aerospace Workers v. Industrial Comm'n, 79 Ill. 2 d 544, 557, 404 N. E. 2 d 787, 39 Ill. Dec. 196 (1980). Intoxication which does not incapacitate a claimant from performing his work-related duties is not sufficient to defeat recovery of compensation under the Act although the intoxication may be a contributing cause of his injury. ”

SB 1420 (Righter) Rescission & Fraud • Added to Section 19(f): “The Commission may recall a decision or settlement when fraud has been determined to be committed related to the case. The Commission shall implement a rule to establish a process for recalling a decision or settlement that is subject to recall due to fraud. ” • Compare to Smalley Steel Ring Company, 386 Ill. App. 3 d 993 (2008): “Additionally, as noted by the Commission, fraud is not a basis for extending the statutory authority of the arbitrator or the Commission. Sections 19(b) and 19(f) of the Act provide for the finality of the arbitrator's and the Commission's decision, respectively, when further review has not been sought by either party within a particular time frame. Each section also provides for conclusive decisions ‘in the absence of fraud. ’ In Michelson , 375 Ill. 462 (1941), the supreme court declined to find that the legislature intended the ‘in the absence of fraud’ language to give the Commission the authority to set aside its orders on the ground of fraud. It continued that, without express authority, the Commission was without jurisdiction to so act and the parties were "relegated to a court of equity for relief under a charge of fraud. "

SB 1420 Fraud • Added to Section 25. 5: “The fraud and insurance noncompliance unit shall employ one or more attorneys licensed to practice law in Illinois as special prosecutors who shall initiate and prosecute any necessary criminal or civil actions in any court or tribunal of competent jurisdiction in this State. The special prosecutors may also assist State's Attorneys in prosecuting violations of this Section, without charge to the county. ” • “Upon receipt of a report of fraud, the employee or employer shall receive immediate notice of the reported conduct, including the verified name and address of the complainant if that complainant is connected to the case and the nature of the reported conduct. ”

SB 1420 Fraud • “When an investigation is referred for prosecution the employee or employer who was the subject of the report and the person making the report shall immediately be notified that the investigation has been referred for prosecution. “ • “When the Attorney General or a State's Attorney declines to prosecute a referral from the fraud and insurance non-compliance unit of an alleged violation of this Section, the Attorney General or the State's Attorney declining prosecution shall provide in writing a response to the unit within 30 days of such decision setting forth the reasons and basis for the decision. The unit shall provide the response to the employer. “

SB 1420 Fraud • “(f-1) The Division of Insurance of the Department of Financial and Professional Regulation shall post all of the following information on its Internet Web site for each person convicted of a violation of the unlawful actions provided in this Section: (1) The name, case number, county or court, and other identifying information with respect to the case; (2) The full name of the defendant; (3) The city and county of the defendant's last known residence or business address; (4) The date of conviction; (5) A description of the offense; (6) The amount of money alleged to have been defrauded; (7) A description of the punishment imposed, including the length of any sentence of imprisonment and the amount of any fine imposed. The information required to be posted under this subsection shall be maintained on the Department's Web site for a period of 5 years from the date of conviction or until the Department is notified in writing by the person that the conviction has been reversed or expunged. “

SB 1420 Fraud • “(g) Civil liability. Any person convicted of fraud who knowingly obtains, attempts to obtain, or causes to be obtained any benefits under this Act by the making of a false claim or who knowingly misrepresents any material fact shall be civilly liable to the payor of benefits or the insurer or the payor‘s or insurer's subrogee or assignee in an amount equal to 3 times the value of the benefits or insurance coverage wrongfully obtained or twice the value of the benefits or insurance coverage attempted to be obtained, plus reasonable attorney‘s fees and expenses incurred by the payor or the payor's subrogee or assignee who successfully brings a claim under this subsection. This subsection applies to accidental injuries or diseases that occur on or after the effective date of this amendatory Act of the 94 th General Assembly. This subsection shall not bar any plaintiff from attempting to secure civil remedies provided under this Section or any other law. “

HB 0058 (Reis) Various Provisions Starting with Causation • Causation: New Section 1(d): "Injury" means an injury that has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "Prevailing factor" means the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. ( 1) An injury is deemed to arise out of and in the course of the employment only if: (A) it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (B) it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. (2) An injury resulting directly or indirectly from idiopathic causes is not compensable. (3) A cardiovascular, pulmonary, respiratory, or other disease or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition. ”

HB 0058 Causation • Compare to Sisbro, 207 Ill. 2 d 193 (2003): “It is axiomatic that employers take their employees as they find them. When workers' physical structures, diseased or not, give way under the stress of their usual tasks, the law views it as an accident arising out of and in the course of employment. Thus, even though an employee has a preexisting condition which may make him more vulnerable to injury, recovery for an accidental injury will not be denied as long as it can be shown that the employment was also a causative factor. It is a well-settled rule that where an employee, in the performance of his duties and as a result thereof, is suddenly disabled, an accidental injury is sustained even though the result would not have obtained had the employee been in normal health. Accidental injury need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor in the resulting condition of ill-being”

HB 0058 Notice • Notice: Section 6 amended: “(c) Notice of the accident shall be given to the employer immediately after the accident as soon as practicable, but not later than 72 hours after the occurrence of the accident. Notice of the accident may be given to the employer up to 45 days after the accident. Provided: …No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy, including, without limitation, that such defect or inaccuracy of notice adversely impacted the employer's ability to properly investigate the claim of accident. “

HB 0058 Wage Differential • Wage differential: Added to section 8(d)1: “In computing the compensation to be paid to any employee who, before the accident for which he or she claims compensation, had previously sustained an injury or injuries resulting in a difference in earnings between the average amount which he or she would have been able to earn in the full performance of his or her duties in the occupation in which he or she had been engaged at the time of the previous accident or accidents and the average amount which he or she was thereafter earning or was found to be able to earn in some suitable employment or business after the previous accident or accidents, there shall be deducted, from any award or settlement made for the subsequent injury, the permanent loss of earnings previously sustained. An award or settlement under this Section may at any time be reviewed by the Commission, at the request of the employer, on the grounds that the earnings of the employee have subsequently increased, or that, due to the employee leaving the work force, the earning of wages has ended, or that the earnings differential has ended or been eliminated for other reasons. Upon such review, compensation payments may be ordered to be diminished or to cease. The Commission shall give 60 days' notice to the parties of the hearing for review. “

HB 0058 Wage Differential • Compare to Cassens Transport, 218 Ill. 2 d 519 (2006): “The language of section 8(d)(1) does not authorize either party to petition for review of an award, as section 19(h) does. It does not authorize the Commission to recall an award, as section 19(f) does. Nor does it authorize an employee to petition for review, as section 8(f) does. It would be inappropriate for us to read one of these procedures into section 8(d)(1) when the legislature has included none of them in that section. Reading the Act as a whole, we hold that section 8(d)(1) does not specifically authorize the Commission to reopen final installment awards for partial disability. Thus, the Commission does not have jurisdiction under section 8(d)(1) to reopen Ade's final award. Our holding is based on the statutory interpretation of section 8(d)(1) and does not affect the operation of other sections of the Act. ”

HB 0058 8(d)2 • Man as a Whole: Added Section 8(d)2: “In computing the compensation to be paid any employee who, before the accident for which he or she claims compensation, had previously sustained an injury resulting in the payment of compensation for a percentage of partial disability under this paragraph (d)2, that percentage of partial disability shall be deducted from any award or settlement made under this paragraph (d)2 for a subsequent injury. Nothing in this Act shall permit cumulative awards or settlements for compensation for partial disability under this paragraph (d)2 to exceed 500 weeks, which shall constitute complete loss of use of the body as a whole. ”

HB 0058 AMA Guidelines • AMA Guidelines New Section 8 “(k): For accidental injuries that occur on or after the effective date of this amendatory Act of the 96 th General Assembly, permanent partial or total disability shall be certified by a physician and demonstrated by use of medically defined objective measurements that include, but are not limited to: loss of range of motion; loss of strength; and measured atrophy of tissue mass consistent with the injury. In determining the impairment, subjective complaints shall not be considered unless supported by and clearly related to objective measurements. The then-current edition of the American Medical 24 Association's "Guides to the Evaluation of Permanent Impairment" shall be applied in determining the level of disability under this Act. “

HB 0058 Intoxication • Intoxication; Added to Section 11: “No compensation shall be 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 thereof 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, shall be admissible in any hearing to determine compensability. If the employee refuses to submit to such analysis, it shall be 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 shall be 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. ”

HB 0058 Commissioners • Commissioners: Added to Section 13: “Beginning January 1, 2011 and thereafter, a Commissioner candidate, other than the Chairman, must meet one of the following qualifications: (1) he or she must be licensed to practice law in the State of Illinois with 10 years of experience in workers' compensation; (2) he or she must have served as an arbitrator at the Illinois Workers' Compensation Commission for at least 10 years; or (3) he or she must have at least 10 years of professional labor relations experience that includes workers' compensation responsibilities. …Commissioners shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts. ”

HB 0058 Arbitrators • Arbitrators: Added to Section 13. 1, Workers’ Compensation Advisory Board: “shall aid the Commission making appointments of Arbitrators… Prior to the reappointment of any arbitrator on or after the effective date of this amendatory Act of the 96 th General Assembly, the Chairman shall perform a performance audit of the arbitrator and shall submit the performance audit report to the Advisory Board. Prior to appointment or reappointment of arbitrators on or after the effective date of this amendatory Act of the 96 th General Assembly, the Chairman shall request that the Advisory Board make recommendations as to candidates to consider for appointment and the Advisory Board may then make such recommendations. A recommendation by the Advisory Board of appointment or reappointment of any arbitrator shall be by a vote of a majority of the members appointed to the Advisory Board. This amendatory Act of the 96 th General Assembly shall be consistent with the appointment of arbitrators as provided in Section 14 of this Act. ”

HB 0058 Arbitrators • Arbitrators: Added to Section 14: “Each arbitrator appointed on or after the effective date of this amendatory Act of the 96 th General Assembly must meet one of the following qualifications: (1) he or she must be licensed to practice law in the State of Illinois with 10 years of experience in workers' compensation; or (2) he or she must have at least 10 years of professional labor relations experience that includes workers' compensation responsibilities. Arbitrators shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts. “

HB 0058 Collectively Bargained WC • New Section 23. 1: “Sec. 23. 1. Collective bargaining agreements. Any employer or group of employers, and the recognized or certified and exclusive representative of its employees, may agree to establish certain binding obligations and procedures relating to workers' compensation. This agreement must be limited to the following, but need not include all of the following: (1) An alternative dispute resolution system to supplement, modify, or replace the procedural or dispute resolution provisions of this Act. The system may include mediation, arbitration, or other dispute resolution proceedings, the results of which may be final and binding upon the parties; (2) A list of providers of medical treatment that may be the exclusive source of all medical and related treatment provided under this Act; (3) A list of providers which may be the exclusive source of impartial medical (physical or mental) examinations under this Act; (4) The creation of a transitional or modified return to work program; (5) A list of individuals and companies for the provision of vocational rehabilitation or retraining programs; (6) The establishment of safety committees and safety procedures; (7) The adoption of a 24 -hour health care coverage plan. ”

HB 0058 Collectively Bargained WC • “(b) A copy of the agreement identifying the employer or the group of employers and the local union, district, or council shall be filed with the Illinois Workers' Compensation Commission. Upon filing, the agreement shall be valid and binding. (c) Nothing in this Section shall allow any agreement that diminishes an employee's entitlement to benefits as otherwise set forth in this Act. For the purposes of this Section, the procedural rights and dispute resolution agreements under paragraphs (1) through (7) of subsection (a) are not agreements that diminish an employee's entitlement to benefits. Any agreement that diminishes the employee's entitlement to benefits as set forth in this Act is null and void. (d) If the employer is insured under this Act, it shall, in 18 the manner provided in the insurance contract, provide notice 19 to its insurance carrier of its intent to enter into an 20 agreement as provided in this Section with its employees. ”

Collectively Bargained WC • Can it already be done in IL? Section 8(a) Physician Panel; Section 19(p) Voluntary Binding Arbitration • But what about Section 23? Approval by IWCC • IL: Olmsted Dam, Ohio River (down by Cairo, IL) • Melena v. Anheuser-Busch, 219 Ill. 2 d 135 (2006): Mandatory arbitration provision in “Dispute Resolution Program” is enforceable contract that binds employee who brought retaliatory discharge claim • Penn Plaza v. Pyett, US Sup. Ct. , No. 07 -581, 4/01/09: CBA that clearly requires union members to arbitrate ADEA claims is enforceable as a matter of federal law

Collectively Bargained WC • Pros: Lower injury & claims rates; More effective medical delivery; Virtually no friction in dispute resolution; Cost savings; Satisfaction of participants • Cons: Inadequate due process; Reduced benefits; Unequal distribution of savings; Discontinuity of treatment & adjudication; Unnecessary risk to unions & employers • W. E. Upjohn Institute for Employment Research, 2002