4-21-2014; Do We Really Need "Magic Hook" Legislation to Make Safe Workplaces Harder to Achieve?; Putting Away Reflective Triangles is an "Emergency" in IL; Important ADA Ruling of Note and much more

Synopsis: Let No Good Deed by Our Courts Go Unpunished--Another Unnecessary Attack on IL Business from Our Legislature.

Background: In the 2012 ruling by the First District Appellate Court in Mockbee v. Humphrey Manlift Company, Inc. Case No. 1-09-3189, decided May. 18, 2012, Plaintiffs Brenda Mockbee and spouse Michael Merle Mockbee brought a negligence action against Defendants Harris Industries and R. Harris Electric (collectively Harris) and Humphrey Manlift Company after Ms. Mockbee was severely injured in 2002 when she fell into a floor opening that was part of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked. Use of the manlift was optional for all Quaker Oats employees; stairs between the floors of the plant were nearby and could have been used.

On June 6, 2002, Brenda Mockbee suffered severe injuries when she fell into the first floor opening of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked as an ingredient handler. The severe injuries rendered Ms. Mockbee a paraplegic. There was no guardrail at this floor opening of the manlift. Our research indicates all medical and lost time benefits were accepted and the estate settled the workers’ comp claim with this major Illinois employer for $200,000 in a settlement approved by the Arbitrator assigned in September 2013.

In this third party ruling, Plaintiffs sought to reverse the Circuit Court's grant of summary judgment to Defendants Harris and Humphrey. Plaintiffs contended Harris and Humphrey were safety inspectors of the manlift platform system and owed Ms. Mockbee an independent duty of care and arguably breached that duty when their respective inspections failed to note the need for a safety guardrail required by the Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 (2006).

The Appellate Court affirmed the grant of summary judgment to Harris and Humphrey, but on the ground that both are immune from liability for injuries sustained by Quaker Oats’ employee Mockbee under section 5(a) of the IL WC Act as providers of safety services to the employer. Basically, the legal ruling puts a safety engineer or inspector into the shoes of the employer and provides protection from a third-party action.

“Magic Hook” Legislation May Create a Cottage Industry of New Third Party Claims

Our legislature, spurred by ITLA, is seeking to overturn this concept via SB 3287. The immediate impact of this legislation is the elimination of the workers’ compensation exclusive remedy/immunity enjoyed by service companies that provide safety consulting unless those companies are wholly-owned by the employer, insurance broker or the insurer. If you don’t understand, if this bill passes, it will create a cottage industry of new litigation for any significant injury in the workplace. While the employer only has to pay IL generous workers’ comp benefits, any safety consultant or inspector will be required to have what we call a “magic hook” or a method to insure no one ever gets hurt because if anyone gets mildly to seriously hurt, the safety consultant is certain to get sued. If the “magic hook” fails and someone falls or otherwise gets injured, wasn’t it their job to globally insure no one ever gets hurt? Massive liability for safety engineers/consultants will be unavoidable and ever-present.

Why is this a poor idea? Well, workplace safety should be everyone’s goal and IL business has made great strides, prompted in part by OSHA, the IWCC and WC costs. Right now, Illinois’ injury rate is 16% lower than the national median. From the Illinois Workers’ Compensation Commission 2012 Annual Report:

Accidents continue to decline. From the FY95 peak of 72,000 cases, fewer than 47,000 were filed in FY12, a 35% decrease. The overall injury rate in Illinois is lower than most states, and the injury rate has declined dramatically over the years: the 2009 injury rate is 64% lower than in 1990.

Do We Really Want to Make It Harder or Impossible for IL Employers to Hire Safety Consultants?

SB 3287 is going to make it much more challenging for IL employers, large and small to hire safety consultants and inspectors because those service providers will have dramatically higher exposure for any injury. Please note the third party exposure for the Mockbee claim listed above could easily be $30-60 million. Trust us, the members of the IL Trial Lawyers Assn. are pushing your legislators to guarantee those monster paydays. For that reason, SB 3287 will have an immediate and dramatically negative effect on retention of safety engineers, resulting in decreased workplace safety, exposing more workers to injury. If Illinois workplaces are getting safer, why jeopardize that continued improvement?  

Small employers especially will be adversely impacted. This is because smaller IL employers typically cannot afford a full-time safety professional on staff to address safety issues. Employers with 5-300 employees use outside consulting firms which provide expertise to help keep their business in compliance with OSHA standards and limit workers’ compensation exposure to employee injury. As we indicate above, this approach is working very well. If you make outside safety consulting exponentially higher in cost, employers aren’t going to want to use them and may not be able to afford them, even if they want to use them.

Please further note erosion of the exclusive remedy provision will only create more expensive litigation and higher costs for Illinois employers—this means increased costs for both private employers and governments across our state.  The liability exposure will immediately increase liability insurance costs for safety consultants and inspectors. Those increased expenses will be passed onto employers and taxpayers. In turn, these dramatically increased costs will be passed along to consumers, making IL even less competitive.

The attorneys and staff at KCB&A join with the IL State Chamber and many other groups in opposing this unnecessary legislation. We thank the reader who provided information leading to this article. We urge our readers to join the IL Chamber and get more information on their website at www.ilchamber.org.

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

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Synopsis: Why Illinois is Soooo Bankrupt—“Lifetime Pay” for Government Workers Plus WC Benefits Plus Lifetime Family Healthcare Coverage.

Editor’s comment: We bet the average IL citizen doesn’t understand what a mess our State of IL and City of Chicago governments are in. The combined pension debts of these government bodies are over $140 billion, yes billion dollars. Despite that giant debt, we already have the second highest property taxes in the country and an income tax that is already at 5% with our legislators trying to find lots of ways to justify even higher taxation. We are starting to become concerned some of our older leaders are becoming senile when you read the contradictions and craziness coming from Springfield.

In a recent ruling in Pedersen v. Village of Hoffman Estates, we saw another example of how challenging it is for taxpayers to understand where their money is going. Former Firefighter Pedersen had hearing issues and used hearing aids. He went to a fire on the expressway and put the fire out in the company of other firefighters. The fire was over and the crew was cleaning up and preparing to leave. Another firefighter mistakenly turned on the siren on the truck. It appears Pedersen wasn’t able to cover his ears in time and suffered more hearing loss. Despite the fact he can currently work and make money in lots of jobs, to the extent his hearing issues preclude him from being a firefighter, the taxpayers of Hoffman Estates now have to pay him for the rest of his life as if he is completely disabled from all work. Our legislature could change this “lifetime pay” concept today but we assure you there is no chance they will do so.

On top of the “lifetime pay” he is currently receiving, our research indicates former Firefighter Pedersen also received workers’ comp benefits of 11% BAW and about 42% loss of use of the left ear and about 30% loss of use of the right ear. This was a “going-away-present” of about $70,000.

Sounds like a pretty good deal, huh? Lifetime pay with the ability to also work at any job(s) you can find plus $70K? Well, why stop there? In Illinois, if a firefighter can demonstrate their injuries were the result of a "response to what is reasonably believed to be an emergency," they are also entitled to full lifetime family health care group health coverage. If you aren’t sure the additional cost to the taxpayers of Hoffman Estates is probably in the range of $25K per year and that amount is going to continue to rise.

Please note the Village determined the firefighter wasn’t in the act of responding to an emergency. We strongly agree with that determination—the fire was out! They were cleaning up after the fire and putting things away. There was no reason for the siren that arguably caused injury—all parties agree it was set off by mistake. The Circuit Court affirmed denial of family group health benefits.

In a somewhat shocking turn of events, the unanimous IL Appellate Court found the determination by the Village and the Circuit Court was “clearly erroneous” and there was no question the injury occurred in response to an emergency. You may note the dictionary defines “emergency” as an “unexpected and usually dangerous situation that calls for immediate action.” At the time of this unfortunate event, Claimant Pedersen was returning reflective triangles to their storage place. We don’t consider that a clear and immediate emergency but in Illinois, it would appear that it is. It seems a lot more justified for taxpayers to pay the extra money for group family lifetime coverage for a firefighter injured while actively tangling with a fire, explosion or pulling children out of a burning building. How do you equate that heroic work with putting shiny triangles back into a truck?

So along with:

·         The thousands of IL and Chicago government workers receiving total and permanent disability awards with hefty COLA increases that could be ended today by using voc rehab and job placement to return the workers to other government or private jobs;

·         The firefighters and police officers now being paid for life when they are also working and making lots of money in other jobs;

·         Along with the hundreds of thousands of former government workers currently receiving what some call pensions or what we call “lifetime pay” being paid out of our current tax dollars

you start to see why this state is in the dire financial mess that it is.

If you would like the website of the ruling above, send an email. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Dealing with ADA—The Burden May Be on the Worker to Show Existence of Another Position.

Editor’s comment: After the Americans with Disabilities Act Amendments Act of 2008 and the recent legislative changes that hit U.S. employers where prior defenses to ADA were arguably stripped by the Feds, lots of employers in the public and private sector have struggled with the best approach to dealing with this challenging law. Most HR and other managers want to get people to work with reasonable accommodation but they also want to make money in their businesses or be effective government managers. It appears the new battlefield may be over whether the worker can demonstrate you have a position that will “reasonably accommodate” their disability but also it appears they have to be able to safely perform the “essential job functions” of a job you have available.

In Perez v. Transformer Manufacturers, Inc., the Federal District Court dealt with a “wire-winder” from Norridge, IL who developed hand issues with resulting work restrictions. There was no question the worker could not perform the prior position.

The Court further noted the employee failed to show there was another position to which his employer reasonably could have assigned him following his alleged on-the-job accident or disability. Thus, because the employee was admittedly unable to perform at least some essential functions of his previous job after his on-the-job accident, his ADA discrimination claim for failure to accommodate was not viable. The Federal Court rule the employer was not required to “manufacture a job that will enable the disabled worker to work despite his disability.” The Court also noted “an employer need not create a new job or strip a current job of its principal duties to accommodate a disabled employee.” The employer “need only transfer the employee to a position for which the employee is otherwise qualified.”

The record indicates the employee never asked to be reassigned to another position within the company. Also, Plaintiff Perez merely referred to injured workers who were placed in vacant light-duty positions at some time in the past, without presenting anything to show comparable vacant positions were available at the time he was injured. Further, even if there had been such vacancies, he offered nothing to show he was capable of performing the essential functions of those positions.

The defense team at KCB&A has a number of veteran trial attorneys who can consult or assist you with ADA issues and avoid litigation. If you need assistance, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

4-14-2014; Why Are IL WC Lawyers So Hot About Not Wanting Treaters to Provide Ratings?; OSHA Whacks Railroad for Same-Shift Accident Reporting; Drunk Claims Adjuster Denied WC and much more

Synopsis: Why are IL WC Lawyers So Afraid of Treating Doctors Providing AMA Impairment Ratings in IL WC Claims?

Editor’s comment: We recently saw one of those mildly threatening letters from a noted IL WC Petitioner/Plaintiff lawyer to a nurse case manager or NCM confirming their position about the NCM asking for an impairment rating from a treating doctor. The letter says:

It is understood that treating doctors are not to give AMA Impairment Ratings per the 6thEdition without consent of the patient. Patient herein and his/her attorney irrevocably do NOT consent. Nurse shall not request of any treater any AMA impairment rating and if any is given it shall not be used in evidence or any other way in any hearing before the Workers’ Compensation Commission or any Arbitrator or Commissioner thereof.

If you aren’t sure AMA Impairment ratings landed in Illinois for claims starting on and after September 1, 2011. Ratings are considered to provide permanency values somewhat lower than the Illinois WC system previously provided. An “impairment rating” is defined as a medical percentage estimate of loss of life or work activity reflecting severity for a given health condition, and the degree of associated limitations in terms of activities of daily living or ADL’s. ADL’s are basic self-care activities performed in one’s personal life such as bathing, eating, personal hygiene and getting dressed.

Impairment and disability as used in the 2011 Amendments to the IL WC Act were diverse concepts. Starting in 2011, AMA impairment ratings became an unquestioned component of the PPD percentage loss of use assessment, but the IL WC legislation did not draw a direct equation between the impairment rating and the final determination of permanent partial disability. The most current version of the AMA Guides is the 6th Edition. This study clearly indicates disability is a determination made by an administrative law judge and may or may not have a relationship to impairment. All editions of the AMA Guides state an impairment rating is not equal to disability and is not intended to be a measure of disability since disability has to do with restrictions in job functions rather than the actual anatomic limitation.

What Were the Factors Which Led to the AMA Guides Being Included In the 2011 IL WC Act Amendments?

·         To provide a level of uniformity for our hearing officers in determining PPD awards;

·         To eliminate some of the randomness and/or political smell that arose with the occasional but shockingly high PPD ruling;

·         To mildly reduce the value of PPD awards and save Illinois business and governments money; and

·         To bring IL WC more in line with the 40 or so states that employ AMA Guides for Impairment.

Will You Save Money if You Use/Obtain Impairment Ratings in your IL WC Claims?

Our answer is unequivocally yes. IL WC Arbitrators and Commissioners are required by law to consider them as part of the hearing process. We are seeing solid results whenever impairment ratings are provided for their consideration. We have not seen any recent reported decision where PPD was awarded without careful consideration of a proffered rating. We aren’t saying the Arbitrators/Commissioners will award PPD at the level of the impairment rating but we assure you they will consider it.

If you aren’t sure, that is precisely why we feel Petitioner/Plaintiff lawyers (and some liberal or “cross-over” defense firms) dislike ratings and don’t want treating doctors to readily provide them, as a matter of course.

Please also note in non-litigated claims, we have had success in getting pro se settlements approved for the impairment rating, if you are smart enough to get one.

Who Can Prepare an AMA Rating in an IL WC Claim?

Section 8.1(b) of the IL WC Act requires the report be prepared by a physician licensed to practice medicine in all of its branches. Therefore in Illinois, non-physician medical providers such as chiropractors are not permitted to provide impairment ratings. The Act does not require the licensed physician be certified to perform an AMA rating. Note AMA Guidelines themselves do permit impairment evaluations from “medical doctors who are qualified in allopathic or osteopathic medicine or chiropractic medicine.” This provision is contrary to the plain language of IL WC law.

To the extent the practicing bar understands the relatively new concept, an impairment rating by a “certified” physician should carry more weight than one by a “non-certified” doctor, although such certification or training is not mentioned or required by either the AMA Guides or the IL WC Act. We haven’t seen any decisions that directly address the value of impairment ratings in relation to the physician’s rating certifications.

Can/Should a Treating Physician Perform an AMA Rating?

Well, it is kind of funny to compare our nutty state to lots of other states. As an example, if you look online, you will note the State of Colorado has a specific provision about treaters providing ratings:

Rule 12-2     PROVIDER RESPONSIBILITIES

(A) Where the authorized treating physician has determined that the injured worker is at maximum medical improvement (MMI) and has not returned to his/her pre-injury state, physically and/or mentally, the treating physician shall determine or cause to be determined a permanent medical impairment rating in accordance with this Rule 12.

This exemplifies the fact AMA impairment ratings are customarily provided by treating physicians in many other states. Please also note the Indiana WC system allows the treating physician who is chosen by the employer can use AMA Guidelines to determine the injured worker’s PPI or impairment rating.

The AMA Guides themselves indicate treating doctors may have concerns about providing AMA impairment ratings for precisely the opposite situation to which Illinois Plaintiff/Petitioners attorneys object. The Guides indicate a treating doctor is not “independent” and therefore, their determinations “may be subject to greater scrutiny” because they are considered biased in favor of the patient. The AMA Guides indicate the “physician’s role in performing an impairment evaluation is to provide an independent and unbiased assessment of the individual’s medical condition, including its effect on function and of limitations to the performance of ADL’s.” The Guides’ explicit acknowledgment of the bias of treating physicians in favor of their patients would appear to indicate Petitioner/Plaintiff attorneys in this state would want treaters to provide them.

Can/Should the Workers’ Compensation Insurance Carrier/TPA Request an AMA Impairment Rating From the Treating Physician?

Our advice to all of our clients is to start every WC claim with three things, where applicable. Be sure to:

1.    Investigate the accident fully;

2.    Get a signed HIPAA-GINA compliant release from the injured worker; and

3.    Give them your IL WC PPP required notice if you have a WC PPP in place.

If you have completed numbers 1 and 2 above, you have no concern about asking a treating doc for an impairment rating when the patient is at MMI. You can then use the rating to seek to settle the matter on a pro se basis—the defense team at KCB&A still handles such settlement approvals at favorable flat rates—if you have interest, send a reply.

If you don’t have a signed HIPAA-GINA release or Petitioner/Plaintiff’s attorney withdraws the release in whole or in part, you may need to get an impairment rating from a physician other than the treater.

Admissibility of AMA Ratings

While an AMA rating is provided for by the IL WC Act, the issue of admissibility remains to be determined. If a treater provides a rating, it might be admitted as part of the larger medical record. However, the rating is clearly created “in anticipation of litigation” and therefore depositions may be required if a hearsay/foundation objection is voiced. However, it is our opinion depositions over impairment ratings are a complete waste of time for both attorneys because there is so little to ask the rater and we don’t see any doctor performing a rating later changing their overall opinion/rating. We will have to take a wait and see approach on this one.

If you need help with getting an impairment rating on any IL WC claim, send a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Gotta Love OSHA—They Hit Railroad with $350K+ Fine for Terminating Conductor Who Admittedly Did Not Follow Same-Shift Accident Reporting Rule.

Editor’s comment: We have advised our readers we have clients and others who have “same-day” or same-shift accident reporting protocols. The way the concept works is the employer requires urgency in accident reporting protocols to insure they learn of any accident or injury occurring in the workplace at the earliest opportunity. In this fashion, they can address the dangerous situation resulting in injury.

Some of our clients have done this in union environments where the unions will join with the employer to insure the union membership knows the rules and follows them. If an employee is late in reporting, the workers’ comp claim is investigated and benefits may be paid. However, if the accident is reported late, the employee is terminated, not for the fact of the accident but for late reporting.

Our concern when we first heard of this concept was the potential for litigation due to the termination. OSHA obviously received a beef about such a termination from a railroad conductor for Wisconsin Central Railway. There is no question the conductor was within his 60-day probation period when injured in Manitowoc, WI. It appears from the facts the injury was reported on a “same-day” basis but not during the same shift. On the last day of probation, the conductor was issued a removal-from-service letter rejecting his application for employ. The railroad asserted he violated an enforced work rule, leading to non-retention.

OSHA awarded $217K in back pay, $60K in compensatory damages and $75K in punitive damages. The railroad is also required to reinstate the worker, pay attorney’s fees and give out whistleblower rights information to its workers. The matter may be appealed by either party.

Please note this is not a published ruling. The reasoning for the OSHA determination is not available that we can locate on the web. We have no idea if OSHA is going to continue to provide such anti-business rulings in other work settings. But we do consider this a “word to the wise” about your accident reporting protocols.

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

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Synopsis: Fall-Down Drunk Claims Adjuster Denied WC Benefits by Washington State WC Court.

Editor’s comment: A claims adjuster will not receive workers compensation benefits for a head injury he mysteriously suffered while on a Texas beach because he was intoxicated at the time of his accident, a Washington state appeals court has ruled. Rudolph Knight was a Seattle, WA-based catastrophic claims adjuster for State Farm Mutual Automobile Insurance Co. In 2008, he was sent to work on assignment in Galveston, Texas after the area was hit by Hurricane Ike. If you aren’t aware, Galveston Island is a great vacation and party location, rivaling New Orleans and many tropical beach locations.

On a day Mr. Knight wasn't scheduled to work, he alleged he drove 30 miles from his hotel to Galveston Island to supposedly survey the six-year-old hurricane damage, according to records. While driving, he believes he saw a group of men riding dune buggies on a beach and stopped to watch them. That was the last memory Mr. Knight had before his wife visited him in a Texas hospital 24 hours later.

Mr. Knight's wife indicated she spoke to him by phone while he was watching the dune buggy riders, and she heard the men and machines approach him, records show. A few hours later, paramedics responded to a 911 call and found Mr. Knight lying in the surf mumbling “help me.” Mr. Knight had small lacerations and some bruising, and was treated for hypothermia and intoxication, records show. Mr. Knight told paramedics he had not used drugs, but he “had a lot of alcohol to drink.”

Police and doctors noted Mr. Knight smelled strongly of alcohol after he was found, records show. Police did not further determine how Mr. Knight was injured and did not take any witness statements from any of the other drunks on the beach where Mr. Knight was found.

We are happy to note the Washington court did not sweep this obvious bender into WC coverage with the two recent legal paths sporadically used by the Illinois WC Commission or reviewing courts of “traveling employee” or “street risk.”

We appreciate your thoughts and comments.

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Synopsis: Important Ruling for WC Plaintiff/Petitioner Attorneys on Attorney Fee Splits.

Editor’s comment: If Plaintiff/Petitioner Attorneys have an agreement to divide attorney’s fees, you need to take a look at this ruling.

In Donald W. Fohrman & Associates, Ltd. v. Marc D. Alberts, P.C., issued March 14, 2014, two firms had a dispute over attorney fee-sharing based on claim referrals. The record indicates Fohrman’s office was sending med mal referrals to Defendant Alberts. It appears the attorney-client agreement didn’t confirm the participation of both attorneys in the litigation.

The Circuit Court dismissed the claim on motion. The Appellate Court ruled the lower court properly entered summary judgment in favor of Defendant attorney to whom cases were referred, as attorney-client agreement did not comply with Illinois Supreme Court Rule 1.5(e) of our Rules of Professional Conduct, as it did not inform clients of details of attorney responsibility and how fees would be split, as the Rule requires. The failure of the documentation to demonstrate compliance meant the referral agreement and attorney liens were thus unenforceable.

The Illinois 1st District Appellate Court ruled public policy places rights of clients above and beyond attorneys' remedies in seeking to enforce fee-sharing arrangements. We assure our readers the same concepts apply to workers’ comp claims.

4-7-14; When Do You Need to Start Drug/Alcohol Testing?; Understanding IL WC Hearing Loss Claims; Mary McNichols, RIP and much more

Synopsis: When Do You Need To Start To Drug/Alcohol-Test?

Editor’s comment: Okay, readers--is there any other solid HR/Safety approach to dealing with medical marijuana and other legal/semi-legal drugs in the U.S. workplace? We presented for a great audience last week at MacNeal Hospital/Clearing Clinic in Berwyn, IL. The topic everyone is asking about is what is the optimal approach to dealing with the new challenge of medical marijuana in the workplace. Illinois and many states have recently “legalized” the use of this drug; please note the U.S. Government continues to ban the drug but it appears the feds aren’t going to interfere with doctors prescribing it and patients using it. As we all start worrying about medical marijuana due to expectations it will become commonplace for lots of employers, our readers and clients report lots of other strong drugs like Norco and Oxycodone are being regularly used at work too.

Our main concern for you and all HR/Safety/Risk managers will be reacting to medical marijuana for the first time after it hits your workplace. By that we mean, you don’t want to wait for to learn you have one or two folks using it to then respond and start to make changes. While it is possible to do so, if you start to take job action leading to termination against the first medical marijuana user, you are almost certainly going to be discriminating against that worker, exposing your organization to litigation or EEOC/IDHR claims. Trust us, the EEOC or IDHR love to “attack” or penalize employers in a fashion that allows the agencies to herald their successes.

In our view, some employers have moved aggressively to create alcohol and drug-free workplace policies. If you are thinking about going that route, we have a sample drug and alcohol-free program for your consideration and use—if you want a copy, send a reply. In our view, the risk and cost of one impaired individual in your workplace more than justifies the cost of implementing and enforcing the program.

We also feel there are lots and lots of employers who haven’t made the decision to move their organization and work sites to a completely drug and alcohol-free workplace. There are costs and challenges to implement an alcohol and drug-free workplace program. In some industries, you are required by law to implement them but lots of companies are not so constrained. From the viewpoint of component members of the workers compensation community—do insurance carriers/TPA’s, law firms on both sides, nurse case management providers, physicians, hearing officers and others need to start considering a move to become drug and alcohol-free? Those aren’t considered “high-risk” jobs but heightened risks do come from the use of drugs, even in administrative environments.

We feel the next-best question for such employers is how to deal with use of medical marijuana, prescription narcotics, surreptitious use of illegal drugs and a workers-using-someone-else’s prescriptions during work hours on your job site. Our problem with “Plan B” in trying to manage such a workforce is you are looking at liability, liability and more liability. By that we mean, if you don’t drug/alcohol test and let folks closely follow the legislation to openly use medical marijuana while at work, you have several issues that are inescapable. If the worker is allowed to regularly and routinely use medical marijuana, they are arguably impaired as part and parcel of the work they are doing for you. Whether you like medical marijuana or not, such a worker is an increased health and safety risk to themselves, their co-workers and the public at large.

In the legal world, the concept of “respondeat superior” makes U.S. employers arguably responsible for the actions of your workers when they are doing the things you hired them to do. You can also be responsible for some acts if you don’t take reasonable steps to stop bad behaviors by your workers that you are aware of. As an example, you may have heard about the recent situation where a Chicago Transit Authority elevated train driver fell asleep and then smashed the train into an El station at the end of the line and injured around 30 passengers. Please note that accident could cost Chicago taxpayers several million dollars. For example, if the CTA allowed that worker to legally use medical marijuana and part of the reason the driver fell asleep was use of the drug, the CTA might have greatly heightened liability.

We are sure common carriers such as the CTA have lots of rules barring drug and alcohol use by their transit drivers. We salute the Authority for terminating the driver who had two significant safety issues on her record. However, do HR, safety and risk managers understand you now face the same problems for any of your workers who drive any motor vehicle or operate any machinery as part of their work? If your workers are more likely to fall asleep due medical marijuana use and you don’t take action to stop such use, your responsibilities under both workers’ comp and general liability are greatly increased.

So let’s look at some options. As we have advised our readers, there are four main approaches to drug and alcohol testing:

·         Pre-hire;

·         Random;

·         Reasonable cause and

·         Post-accident.

If you are the slightest bit concerned about drug and alcohol use in your workplace, you can do one of the four above or any combination of the above or whatever you feel best. What we don’t think you can or should do is none of the above!

If you are going to test everyone in a pre-hire setting, you are probably going to spend a significant amount of money with a cost per worker of around $50-200 for each person tested. For lots of major employers, that is a significant cost but on the positive side, you are blocking problem workers before they become your problem.

Random drug/alcohol testing can be managed as you feel best—you don’t have to randomly test a large portion or your workers and can limit the sample to control your costs.

Reasonable cause testing is also a controllable method to handle the issue of seeing impaired workers and stopping them from using drugs or alcohol that create concerns for your managers. The problem with limiting drug/alcohol use in this fashion is the concept comes with a higher potential for your company to get sued over the issue of what “reasonable cause” might be; particularly if you are routinely getting negative results but continuing to test.

Post-accident drug/alcohol testing is a solid fall-back position to insure your workers understand if they are injured, you are going to test. It is relatively simple to let your IL WC PPP network or your company clinics know you want everyone reporting an injury to be tested. We hope you don’t have lots and lots of accidents so this approach should be relatively low in cost.

The only approach we don’t agree with is no testing of any kind. We assure you the decision not to test in any fashion at any time will be a very challenging concept for any employer to follow with the heightened use of drugs, alcohol and other intoxicants that have become commonplace in society.

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

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Synopsis: Understanding Hearing Loss Claims in IL Workers’ Comp.

Editor’s Comment: There are two kinds of hearing loss claims in IL. It is important to understand the nuances of this aspect of such claims.

First is what we call “BOOM” or a sudden, one-time blast/blow-up or a smack to the head/ear. The IL WC Act refers to it as from as arising from “trauma or explosion.”

Such claims are treated like any other accident with injuries. Claims managers need to investigate, seek proper treatment for your worker and get documentation of temporary and permanent hearing loss. We feel such claims could be combined with other injuries—if a worker broke their foot in a loud explosion, you might need to take care of the foot and possibly pay for hearing loss for the explosion. The challenge for the worker is meeting the burden of proof to show their hearing loss is related to the “boom.”

In such a situation, this statutory language applies:

4.         Loss of hearing of one ear-

50 weeks if the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006.

            54 weeks if the accidental injury occurs on or after February 1, 2006.

            Total and permanent loss of hearing of both ears-

200 weeks if the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006.

            215 weeks if the accidental injury occurs on or after February 1, 2006.

Second is “repetitive exposure” or more precisely industrial hearing loss. These sorts of claims can become intertwined with OSHA sound requirements in your workplace. To get benefits for industrial loss, the employee has to show exposure to specific levels of loud noise—see below. The baseline is 90 decibels for all 8 hours of a work shift. You don’t typically see that much noise for that long because OSHA may get involved to require hearing protection at appropriate levels.

For that reason, we consider it rare to have an employee exposed to loud or very loud levels for the times indicated. OSHA usually busts employers long before it would apply. If you have any workers who are claiming regular and consistent exposure to 90 decibels or more over an entire day, you need to test and then affirmatively start requiring needed hearing protection for all workers at levels necessary to insure the decibels are under the chart below.

From the IL WC Act:

16. For the permanent partial loss of use of a member or sight of an eye, or hearing of an ear, compensation during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member or sight of an eye, or hearing of an ear, which the partial loss of use thereof bears to the total loss of use of such member, or sight of eye, or hearing of an ear.

             (a) Loss of hearing for compensation purposes shall be confined to the frequencies of 1,000, 2,000 and 3,000 cycles per second. Loss of hearing ability for frequency tones above 3,000 cycles per second are not to be considered as constituting disability for hearing.

             (b) The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average in decibels for the thresholds of hearing for the frequencies of 1,000, 2,000 and 3,000 cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average 30 decibels or less in the 3 frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average 85 decibels or more in the 3 frequencies, then the same shall constitute and be total or 100% compensable hearing loss.

             (c) In measuring hearing impairment, the lowest measured losses in each of the 3 frequencies shall be added together and divided by 3 to determine the average decibel loss. For every decibel of loss exceeding 30 decibels an allowance of 1.82% shall be made up to the maximum of 100% which is reached at 85 decibels.

             (d) If a hearing loss is established to have existed on July 1, 1975 by audiometric testing the employer shall not be liable for the previous loss so established nor shall he be liable for any loss for which compensation has been paid or awarded.

             (e) No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.

             (f) No claim for loss of hearing due to industrial noise shall be brought against an employer or allowed unless the employee has been exposed for a period of time sufficient to cause permanent impairment to noise levels in excess of the following: 

Sound Level DBA 

Slow Response      Hours Per Day

90                                8

92                                6

95                                4

97                                3

100                              2

102                              1-1/2

105                              1

110                              1/2

115                              1/4

         This subparagraph (f) shall not be applied in cases of hearing loss resulting from trauma or explosion.

Sound equivalents from the web:

* 110 decibels, equivalent to deafening factory noises and some music boxes turned up too loudly..

* 100 decibels, equivalent to a chain saw, pneumatic drill, printing plant, jackhammer, speeding express train, some car horns at five yards, farm tractor, riveting machine, some noisy subways [about 20 feet].

* 90 decibels, equivalent to a police whistle, heavy traffic, noisy home appliances subway-rail train, pneumatic drill or hammer at one meter, rock drill at 100 feet, some motorcycles at 25 feet, shouted conversation.

If you need assistance or consultation on a hearing loss claim, “BOOM,” just send a reply.

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Synopsis: Mary McNichols, Rest in Peace.

Editor’s comment: The IL WC community is saddened to hear of the passing of Mary McNichols, J.D. who was a long-time and brilliant workers’ comp lawyer. She lost her battle with an illness  and recently passed in the company of her family. Mary was married to Pat Tallon of Fitz & Tallon, a respected Plaintiff/Petitioner firm.

Mary was the daughter of John J. McNichols, J.D. who was a past president of the Illinois Workers’ Compensation Lawyers Assn.

The attorneys and staff of Keefe, Campbell, Biery & Associates extend our condolences to the family, friends and colleagues of Ms. McNichols.