3-13-2107; Can IL WC Drop Court Review of Claims; OSHA Rules--Will They Change Under New Administration; Anti-Staffing Legislation in Springfield and more

Synopsis: One Baffling IL WC Appellate Ruling After Another--Could Both Sides in IL WC Agree to Drop Court Review?

Editor’s comment: With respect to the five members of the IL Appellate Court, WC Division and the Circuit Court judges who hear WC appeals, I want to confirm my new position our State would be better served to have our work comp claims adjudicated only by the IL WC Commission—Arbitrators at the first hearing level and one of the three Commission panels thereafter. When that is done, game over.

If you or the lawyers who read this KCB&A Update consider this an unusual stance, please note the two levels of hearing is precisely what is accorded to state workers—right now, they are not allowed to appeal to the courts. Somehow they deal with what they get from just two levels of hearing. I vote expand that streamlined model to all WC claims in this nutty state.

I am confident our State might save literally millions to do so. I am also sure the Arbitrators and Commissioners could do a solid job of making reasonable work comp decisions and we wouldn’t have to concern ourselves with the almost endless time it takes to get a final decision in a jurisprudence system that allows five, count ‘em, five different WC hearing levels.

As an example, in a recent ruling in Crittenden v. Illinois Workers' Compensation Comm'n, 2017 IL App (1st) 160002WC (issued February 24, 2017) our Appellate Court, WC Division ruled on a claim arising in 2008, nine years ago. The outcome of their unanimous decision was to send the whole thing back all the way to the Commission with instructions to restart everything, consider new evidence and create a whole new ruling. What? Why? Will this claim end by 2028?

The IL WC Appellate Court ruled our IL Workers' Compensation Commission erred in its method of determining average amount which Claimant Crittenden is able to earn in some suitable employment or business after work-related accident. The Court decision may indicate to me the City of Chicago didn’t truly defend itself in citing jobs this worker could perform and wages he would be earning if he was working.

The other side called an expert whose report was offered into evidence without objection from the City’s Corporate Counsel. As I have advised my readers for years, under the auspices of the politically powerful Alderman who runs the City of Chicago’s workers’ comp program, the City does a miserable job of “defending” itself from such claims. I feel his goal is to insure all city workers get amazing and unfundable pensions or other post-employment benefits, like police/fire disability and workers’ comp benefits. In this situation, Claimant would be entitled to about $250,000 for “wage loss differential” benefits even though the record doesn’t indicate he has an actual job from which to evaluate wage loss. We always ask our students how one can measure wage loss benefits for someone that doesn’t have a wage.

The Court ruling confusingly indicates if Claimant is not working at time of “wage loss” calculation, our IL WC Commission must identify, based on evidence in the record, an occupation that claimant is able and qualified to perform, and apply average wage for that occupation to wage differential calculation. Claimant is now required to introduce evidence sufficient for Commission to identify a specific occupation that Claimant is able and qualified to perform and the average wage for that occupation.

What is unusual about the paragraph above is Claimant presented the evidence “required.” The Arbitrator found the vocational experts agreed that cashier and customer service jobs should be targeted for Claimant and Claimant earned $11.00 per hour when he left his part-time job at Target. Additionally, the Arbitrator noted Claimant’s expert gave a range of projected earnings of $8.25 to $13.78 per hour. The arbitrator then stated "[t]he arbitrator selects $11.00 per hour as a reasonable wage. On appeal, the IWCC looked at the same evidence and ruled $13.78 per hour was a reasonable wage.

So case closed right?—not so fast, not so fast!!! The Appellate Court reversed and remanded for an all new hearing. By now, the prior job at the City for Claimant has gone up in pay and any cashier and customer service jobs also have increased in pay. In short, I have no idea what the Appellate Court means in the paragraph above or why they are again seeking new facts and evidence. It would appear to me the goal is to stick the City with an even higher wage loss differential award than about $30,000 a year for life.

If you understand this decision, please send me your explanation—I have been reading, writing and teaching workers’ comp in this state for almost four decades and I truly don’t understand the intent, meaning and purpose of this baffling appellate ruling.

Only in Chicago and the State of Illinois does it appear that our courts want to stick it to taxpayers as hard as we do in this state. If you aren’t sure, the City is bordering on actual bankruptcy while the State of Illinois is, for the lack of another term, already ‘bankrupt’ to the extent they aren’t paying their bills to the tune of over $12 billion, yes, billion. The credit rating for both governments is about a scintilla above a smoldering junk heap.

In short, I vote we stop clowning around with years of uncertainty in IL WC claims—cut out the reviewing courts for all claims and let the IWCC come to the point much quicker and faster.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: OSHA’s New Reporting and Anti-Retaliation Rule Now in Effect—Will the Current Administration Leave It All in Place??

Editor’s comment: OSHA recently implemented its new "reporting and anti-retaliation rule", which went into effect January 1, 2017. When our current President took over, I predicted some of this stuff would change. His appointment for the first candidate to head the U.S. Department of Labor voluntarily withdrew from consideration and the second candidate--Alexander Acosta—is facing Senate consideration this Wednesday.

From the foxhole in which we are deployed, new leadership for OSHA under Mr. Acosta may cause changes to what you are reading right now. Until we have a better idea of how OSHA will work under him, we will have to continue to adjust. Please watch this space for news on any changes to the OSHA rules outlined herein.

Under the new rule, major U.S. employers must now submit injury and illness information electronically. Most employers were already required to keep records of work related illnesses and injuries and to report fatalities and other certain serious injuries. However, under the new rule, companies that employ 250 or more employees must electronically submit the

Ø  OSHA Form 300 (Log of Work Related Injuries and Illnesses);

Ø  OSHA Form 301 (Injury and Illness Incident Report); and

Ø  OSHA Form 300A (Summary of Work Related Injuries and Illnesses) on a quarterly basis.

Companies in the construction, manufacturing, utilities, and agriculture industries, which have historically high rates of occupational injuries and illnesses, must submit OSHA Form 300A annually when they employ between 20 and 249 employees. Additionally, OSHA may provide written notification to smaller employers requiring them to submit information on a routine basis electronically.

The anti-retaliation rule allows OSHA to cite employers for taking adverse action against employees for reporting a work related injury or illness, even if the employee does not file a retaliation complaint. It also allows OSHA to cite employers who have systems in place that have been used to create safer workplaces, but OSHA now says may discourage injury reporting.

In this controversial rule, OSHA specifically address concerns regarding safety incentive programs and post-accident drug and alcohol testing.

OSHA asserts U.S. employers may perform post-accident drug and alcohol testing only where

(1)  there is a reasonable possibility the employee’s drug and alcohol use contributed to the incident and

(2)  the drug and alcohol test can accurately identify impairment was caused by the drug use.

On the other hand, OSHA states it is unreasonable to drug test an employee when it is clear drug or alcohol use would not have made it more likely that the injury would occur, such as insect bites and repetitive strains occurring over a long period of time) OSHA’s reasoning was allowing employers to “blanket” drug and alcohol test after every accident/injury would somehow discourage employees from reporting injuries and work-related exposures. Safety incentive programs such as cash bonuses for departments or employees that remain accident free were also prohibited. OSHA claims employees who were injured or ill might be reluctant to report a problem because they would be afraid their co-workers would retaliate against them for not getting the safety incentive bonus.

OSHA can fine employers up to $12,471.00 for a single serious violation and up to $124,709.00 for willful or repeated violations. Therefore, all employers need to review their injury-illness reporting requirements, post-accident drug and alcohol testing protocols and safety incentive programs.

We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Important News from the American Staffing Association--Oppose Illinois HB 690—Contact Your Legislators TODAY!!

Editor’s comment: KCB&A represents a number of great staffing companies. We want all of them and our readers to know of this new anti-business legislation.

This shocking new proposed IL law would impose notice requirements, wacky wage mandates, and problems for all IL Staffing Firms.

The Illinois General Assembly is considering amending our State’s Day and Temporary Labor Services Act, which applies to temporary workers other than clerical and professional employees, in a manner that would have a devastating effect on the state’s staffing industry.

Among other things, HB 690 would

      Require a staffing firm to provide a temporary worker with 48 hours advance written notice of schedule changes to multi-day assignments

      Require a staffing firm to ascertain and keep records on the ethnicity of each applicant

      Require a staffing firm to provide applicants with signed written notices of the date, time, and location that they applied for employment

      Require a staffing firm to provide workers with return transportation if such firm provides transportation to the work site

      Require staffing firms to inform temporary workers of conversion fees to clients

      Prohibit a staffing firm from charging temporary workers for drug tests, criminal background checks, and consumer reports

      Require temporary workers to receive the same average rate of pay and benefits as clients’ employees doing substantially similar work

      Impose a rebuttable presumption of retaliation upon any firm that terminates or disciplines a temporary worker within three months of any exercise of the worker’s rights

These operational and other burdens would greatly harm staffing firms’ operations and destroy jobs.

Because the Illinois House Labor and Commerce Committee is holding a hearing on the bill this Wednesday March 15, it is imperative that you contact your legislators immediately.