10-13-2020; Three Thoughts for All IL WC Risk and Claims Managers and more
/
Synopsis: Here are Three Thoughts From Gene Keefe That All Illinois Risk and Claims Managers Need to Know.
Editor’s comment: I consider this stuff to be fairly important for you to consider.
First, before, during and after the Pandemic, injuries and work-related exposures that occur while working remotely from home are covered by Work Comp or the OD—OccDisease Act.
In Illinois, if and when your workers are hurt while working from home, they are entitled to the benefits and protections of the Illinois Workers’ Comp or OD Acts.
Illinois law requires an employer pay for all medical care and treatment, TTD/TPD and compensation for any permanent impairment or disability suffered by the worker. In order to be entitled to those things, your worker must
Report the event causing injury or disease within 45 days and
Be able to show they were injured “in the course” of their employment and the injury “arose out of” their employment.
The term “in the course of” one’s employment, in the most general sense is injuries occurring on the employer’s premises while performing the employer’s work during regular work hours. However, the definition of workplace and work hours is unquestionably forever changing.
We are now in an era of more employees working from home than ever before and still more contemplating such a change. For those people who are working from home, and who are injured, how do we determine if they are injured “in the course of” their employment and “arising out of” their employment? For IL Employers, this creates an incident investigation challenge—you have to fully and completely document what happened at someone’s home office/workplace and whether it is truly a work accident. If you need an Incident Investigation form and protocol, sent a reply.
Many of the criteria for the commuter are exactly the same as those for the home worker. For example, did the injury occur during those hours that an employer would have reasonably anticipated your worker to be working? Can your worker show they were engaged in meaningful work for you just prior and during the time the injury occurred? Did the injury occur while performing a task for their work?
Still further, can they establish the injury “arose of the” employment? Was it their printer that fell on a foot and fractured it or was it their toaster oven? Document, document, document.
If an injury does occur while working from home, and is connected to work, it is important to insure your people know to report the incident to someone in a supervisory position at the employer as soon as possible. To capture proof of the reporting, consider recording a conversation and/or getting signatures.
Second, Understanding “Independent Contractor”—Gene’s rule.
I get asked constantly how to define an “independent contractor” under IL Work Comp. It is basically easy and trust me, case law is mildly deceiving.
Please also understand your “worker” is not an independent contractor because they agree to it orally or sign off on it or otherwise act like they are somehow “independent.”
They are only independent for WC purposes if they have their own WC insurance and show you the policy. The policy has to cover anyone and everyone that works with and for you. I can’t stress this enough. If they have their own WC insurance and they die at work or become seriously injured/disabled, you want the claim to go through their own coverage with your coverage as a backup.
Please assume they have six young kids and dependent parents and they are going to complain to their congress-person or state rep if the worker is injured and disabled/dead. The politician is going to find them a great Claimant lawyer and the lawyer is going to appropriately come after you for coverage—you need to be ready to show the policy or “proof of insurance” to demonstrate that worker was “independent” and their issues aren’t on your dime. If you can do that, you have an independent contractor relationship. If you can’t, it is going to be hard to defend you. Feel free to contact our defense team for help, as we do defend folks who may have similar issues and need guidance.
So Gene, what about the “opt out” thing where a worker who runs the “independent contractor” company can “opt out” of WC/OD coverage?
You hear a lot of things--there is no reason, none under which I can recommend any of my/our KCB&A clients should allow an “independent contractor” to opt out of coverage. Basically, what that means is there is no coverage to protect the person from gigantic medical bills and lost time and whatever their permanency/impairment might be.
Again, the family and friends of that injured man or woman are coming after YOU! Don’t let that happened by allowing the worker to opt out—make sure they haven’t done so.
Third and last for this week—what are the risks of operating a company/employer in IL and not have a Work Comp/OD policy?
In simplest terms, the risks are both “business-busting” and “you-busting.” If you are operating a company without WC/OC coverage, you can and will be subject to a $10,000 fine along with $500 for every day you were operating without insurance.
That fine can be levied on your business whether it is a sole proprietorship, corporation, LLC or whatever form you use. It is also possible for Claimant and counsel to “pierce the corporate veil” and attack your personal assets, like your home or car.
On top of all those challenging things, you can not only face a WC claim before the IL WC Commission, it is also possible you can be sued in Circuit Court for the injuries with unlimited risk—a verdict for worker injuries or death could be in the millions or tens of millions.
And last but not least, it is a class 4 felony or a crime to operate a business without WC/OD coverage. You could lose your house, your car and go to jail.
In short, please, please don’t operate a business in this nutty State without work comp/occdisease coverage.
I appreciate your thoughts and comments. Please post them on our award-winning blog.
Synopsis: Annual IL State Chamber WC Conference Goes Virtual—Shawn Biery & John Campbell to present.
Editor’s comment: The 14th Annual Workers' Compensation & Safety Conference set for November 4th is being held virtual this year. The 8:30 am to noon program features John Ruser, President & CEO of the Workers' Compensation Research Institute (WCRI) and Michael Brennan, Chairman of the Illinois Workers' Compensation Commission.
The program also will include the following breakout sessions:
Advances in the Diagnosis and Treatment of Carpal Tunnel Syndrome - Presented by Dr. Andrew Zelby and Dave Rusch, Vice President of Business Service Development, Ovation Hand Institute;
Medical Marijuana in the Workplace - Presented by AJ Sheehan, MVP Law
The Covid-19 Rebuttable Presumption - What is it and What Does it Mean for You? - Presented by Peter Stavropoulos, Brady Connolly and Masuda
2020 Workers Compensation Case Law Update - Presented by Shawn Biery and John Campbell, Keefe Campbell Biery & Associates
Snakes, Leaches, and Tobacco Enemas - The Case for Evidence-Based Medical Treatment Guidelines - Presented by Patrick Robinson, Vice President, Government Affairs, ODG, an MCG Health Company
OSHA Updates for 2020 and Beyond - Presented by Matthew Horn, SmithAmundsen LLC
For more information and to register: