1-12-15; It's Rauner Day!!--What Does It Mean for IL WC?; Pregnancy Discrim by Brad Smith; John Chamberlain, RIP and more

Synopsis: As We Predicted Last Year, It’s Rauner Day—What Will It Mean to Workers’ Compensation in Illinois?

Editor’s comment: We salute our new Governor Bruce Rauner and our new Lieutenant Governor Evelyn Sanguinetti upon their swearing-in today. We are confident they are going to work hard to make Illinois more competitive in relation to our sister states and a better place for jobs and education, as they have promised. We consider both of these executives to be truly unhindered by party politics and we feel they are going to work in the best interests of our state.

Their biggest battle to be waged in the current malaise that is Illinois state government are the many “fake” pension programs that are “de-funded” and are being paid to pensioners primarily from current tax dollars. The automatic reduction in the Illinois state income tax from 5% a year to 3.75% on January 1, 2015 is certain to rapidly exacerbate a problem which our current Governor has inherited from decades of mismanagement and profiteering by kleptocratic legislators in Springfield. We are happy to provide our thoughts on what should be done to end this morass—if you are interested in our thoughts, send a reply.

On the workers’ comp front, we look to the new report from the Rauner camp about what they are up to. Their 91-page document is online and you can click on the following link to review it:

Building a Better Illinois:  Report of the Transition Co-chairs to the Governor-elect

The term “workers’ compensation” appears five times. On page 13, workers’ compensation is used in the context of Costly, uncertain jobs environment. The report accurately indicates Illinois has the seventh-highest workers' compensation insurance premium rate (on average, $2.35 spend per $100 of payroll). The report accurately cites the 2014 Oregon workers' compensation premium rate ranking summary. The Rauner report doesn’t indicate the WC premium rates have gotten dramatically better in the last four years after the passage of the 2011 Amendments to the IL WC Act. We also feel IL WC premium rates have dropped and will keep dropping due to the appointment of many conservative and moderate Arbitrators and Commissioners. We are also certain the five-member IL WC Appellate Court did not get the message about trying to bring Illinois to the middle of the United States in workers’ comp costs. We hope Illinois Supreme Court Chief Justice Rita Garman and the other members of our highest court will someday make changes to the make-up of that important WC reviewing court to perhaps provide some diversity and moderation in future rulings.

On page 14, the Building a Better Illinois report indicates:

Lower the cost of doing business in the state. Illinois should review legislation to ensure its corporate taxes, workers' compensation rates, and unemployment insurance rates are in line with peer states. Currently, many companies choose to locate just across the border in states with more favorable rates, thereby saving significant sums while still taking advantage of Illinois’ transportation and logistics infrastructure. Lowering Illinois’ workers' compensation rates, which are a key factor for executives in determining where to locate or expand operations, could support job retention, create new job opportunities, and significantly improve the business climate.

On page 17, the Building a Better Illinois report recommends Illinois government appoint qualified, highly capable workers’ compensation commissioners and arbitrators.

What’s missing? How about Fixing the IL State WC Defense Program? How About Cutting the IWCC Budget a Bit?

Well, Illinois government is one of the biggest employers in this state and has the worst-run WC defense program. We hope our current Governor and his transition team take a long, hard look at the IL government’s workers’ comp program and start to make changes. We consider the IL WC defense program to be one of the inept and incompetent programs in the history of workers’ comp programs. In our view, it is a paradigm of “kleptocratic” government when it gives prison guards, admin staff and other government workers giant WC benefits that no private organization would ever pay.

We are advised the State of Illinois provides over $150M each year in workers’ compensation benefits to its workers. Current Illinois Attorney General Lisa Madigan and Illinois State Auditor General William Holland both drafted scathing reports that barbequed the State’s WC defense program. If you want these reports, send a reply. This led to the creation of the do-nothing Illinois State Workers’ Comp Advisory Board that was to review, assess, and provide recommendations to improve the State workers' compensation program and to ensure the State manages the program in the interests of injured workers and taxpayers—Yawn. To our understanding, this Board has never met once and has never issued its own report. We are sure IL State government hired an outside TPA to manage its claims but didn’t get rid of the CMS managers the outside TPA was supposed to replace. We are also sure there is a Plaintiff/Petitioner attorney who still “defends” an IL state institution for its defense claims in Chicago.

On cutting the IWCC budget, we note the State of Illinois was able to get along with six Commissioners and about 16 Arbitrators under the last Republican administration. We now have nine Commissioners and about double the number of Arbitrators. As the number of new IL WC claims are down, we feel some careful budget cutting could take place to maximize taxpayer dollars.

In summary, we assume you are going to see a brave, new Illinois under new Governor Rauner and Lt. Gov. Sanguinetti. We hope all of our readers are ready, willing and able to provide your best thoughts and ideas for them. We also appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Compliance with the New Illinois Pregnancy Accommodation Law. Analysis by Bradley J. Smith, J.D.

Editor's Comment: If you employ one or more workers in our state, review and comprehension of this article is critical. The Pregnancy Accommodation Act (a.k.a. the “Pregnancy Fairness Law”) (P.A. 98-1050) amended the Illinois Human Rights Act to offer enhanced rights to pregnant employees. As of January 1, 2015, this law took effect, affecting every employer within Illinois. The Act applies to employers employing one or more employees and further applies to full-time, part-time, and probationary employees. Under the Act, it is a violation of the IHRA for an employer to:

·         Require a job applicant or employee to accept an accommodation the applicant or employee does not desire;

·         Require an employee to take leave if reasonable accommodation can be provided;

·         Not make a reasonable accommodation, if requested, to an employee for “conditions related to pregnancy, childbirth, or related medical conditions,” unless the employer can demonstrate the accommodation would impose an undue hardship on the employer;

·         Retaliate against an employee applying for a position, or current employee for requesting an accommodation; or

·         Fail to reinstate an employee affected by pregnancy, childbirth, or common related conditions to its original or an equivalent job with equivalent pay and benefits upon her signifying her intent to return or when her need for reasonably accommodation ceases, absent proof of an undue hardship on the employer’s business.

The Pregnancy Accommodation Act further provides a non-exhaustive list of reasonable accommodations, which explicitly includes:

·         Private non-bathroom space for expressing breast milk and breastfeeding;

·         More frequent or longer bathroom breaks, or breaks for increased water intake or periodic rest;

·         Sitting;

·         Assistance with manual labor;

·         Light duty;

·         Temporary transfer to a less strenuous or hazardous position, job restructuring or reassignment to a vacant position;

·         An accessible work site or modification of equipment;

·         A part-time or modified work schedule or time off; and

·         Appropriate adjustment or modifications of examinations, training materials, or policies.

An employer providing light duty to other types of non-pregnant employees, under the Act creates a rebuttable presumption the accommodation does not impose an undue hardship on the employer. In other words, if your non-pregnant employee is injured on the job, and you provide light duty to accommodate that employee, it is presumed you will do the same for a pregnant employee, and failure to do so will create a presumption of discrimination.

An employer may only refuse to provide a reasonable accommodation when it poses an undue hardship on the company. The burden of demonstrating undue hardship is on the employer. The Act provides the following factors in determining whether a reasonable accommodation would be an undue hardship: 1) The nature and cost of the accommodation needed; 2) The overall financial resources of the employer; 3) The number of employees at the facility; and 4) the overall size and financial resources of the employer generally. 

The Act does allow an employer to request a medical certification from the employee’s healthcare provider concerning the reasonable accommodation request, if it is job related and consistent with business necessity.

Notably, employers must post the Illinois Department of Human Rights approved notice poster, or include a statement in their handbook summarizing the requirements of the Act and providing information about filing a charge of discrimination. The new posters are available from the Illinois State Chamber—if you want the link, send a reply.

The Act minimizes the expected outcome of Young v. U.P.S., which is currently awaiting ruling by the U.S. Supreme Court. Arguments in Young were heard on December 3, 2014. The Young case presents an issue related to providing light duty work for pregnant employees pursuant to the Pregnancy Discrimination Act under federal Title VII when their co-employees injured on the job are provided light duty work. 

In order to comply with the Act, employers will need to implement and engage in an interactive process and also accommodate pregnancy-related conditions. This could include not only conditions related to childbirth and pregnancy related sickness, but also to pre-pregnancy conditions, such as, in vitro fertilization treatments.

As you read this, we are preparing a presentation on Managing Pregnant Workers and should have it for your consideration in the near future. If you have interest in a webinar on the topic, send a reply. The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the Illinois Pregnancy Accommodation Law, employment law, and general liability defense at bsmith@keefe-law.com.

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Synopsis: The Great John Chamberlain, Longshore Act Guru and Founding Father of Signal Mutual Insurance Passes Away.

It is with great sadness we report the unexpected passing of John Chamberlain at the age of 74.  A founding father of Signal Mutual Insurance which is a dominant insurer in the LHWCA field, John began work for Charles Taylor in 1969; moving to the United States in the early 1980s to work with a leading maritime consulting and claims adjusting firm, Lamorte Burns, on the early development of the business which would eventually become Signal Mutual.

John served on Signal Mutual’s Board of Directors from its inception until his retirement from Charles Taylor in 2005. John had also held various positions of executive responsibility throughout his tenure. A naturalized citizen of the United States, John always joked that while most of his friends and colleagues were American by “accidents of birth,” that he actively chose to become an American. Upon his retirement from Charles Taylor, John’s dedication to his adopted country led him to accept the position of Branch Chief, Financial Management, Insurance, and Assessment with the United States Department of Labor Office of Workers’ Compensation (OWCP), the regulator for all Longshore underwriters and self-insureds. After five years of service with the OWCP, John again retired to found a consulting firm.

John passed away on January 1, 2015 in Denver, Colorado. He was returning to Connecticut from a family holiday gathering in California and was taken ill in transit. He was rushed to University of Colorado Hospital where he died in the midst of urgent surgeries. He is survived by his wife Diana; five children, Richard, Nick, Clare, William and Tom; and grandson Arlo.

John taught your editor and our other partners Longshore practice. We will always thank him for it.

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Synopsis: Engage Directly with Experts in the Workers' Comp Arena at this Year's Illinois Workers' Comp Forum.

Editor’s comment: Do you administer workers’ compensation claims? Are you involved in strategic planning? Concerned with medical costs and utilization? Looking for a better understanding of workers' compensation?

Then you won't want to miss the Illinois Workers' Comp Forum, now in its 5th year. Moved to downtown Chicago at Loyola's Quinlan School of Business on May 4-5, 2015, the event provides attendees the opportunity to hear perspectives from and engage directly with experts in the workers' comp arena including:

• Joan Vincenz, Managing Director – Workers’ Compensation and Managed Care, United Airlines
• Gene Keefe, Esq., Partner, Keefe, Campbell, Biery & Associates, LLC
• Don Phillips, Safety Coordinator, City of Naperville
• Devin Stoll, Human Resources Manager, Cintas Corporation

Download the brochure and view their complete list of speakers. Visit their website or call: (646) 807-8555 to reserve your seat today. We look forward to seeing you this May in Chicago. 

1-5-15; PPD Double-Dip Ok'd-Why Isn't Claimant Making More?; Important FMLA Notice/Receipt Req'ment by Brad Smith; New Eavesdropping Law in IL and more

Synopsis: Did the  IL WC Appellate Court allow a statutory “double dip” for both loss of a “person as a whole” and wage loss under 8(d)(1)? Why Is Claimant Working in a Minimum Wage Job and Potentially Costing Village Taxpayers Almost $800K?

Editor’s Comment: In Village of Deerfield v. IWCC (issued December 23, 2014) our Workers’ Compensation Division of the Appellate Court of Illinois explained the basis for what some observers feel is a double PPD recovery when multiple incident claims are involved in litigation.

Claimant Hugh Garrity worked for the Village of Deerfield when he injured his left shoulder in February 2005 (later allegedly aggravating the right shoulder due to “overuse”). In a second injury later that year, Claimant injured his cervical and lumbar spine. There was some discussion by the physicians whether the original shoulder complaints were referred pain from the cervical/neck but ultimately, the first claim resulted in a right shoulder rotator repair and the second claim for the neck and back  resulted in a cervical fusion. A third alleged “aggravation” was deemed to not have materially advanced the condition(s).

The cases were tried consecutively and separate awards were issued. For the first shoulder claim, the IL WC Commission affirmed the arbitration award of 20% loss of the right arm and 15% loss of the left, but converted the award  into “man as a whole” awards consistent with the Will County Forest Preserve ruling. The second claim for cervical and lumbar injuries resulted in a major wage differential award under Section 8(d)(1). Respondent Village of Deerfield may have been disturbed by what they believed to be a double recovery, arguing there should not have been about $53K in additional compensation aside from the giant lifetime wage loss differential award. Please note these are “weekly” benefit awards. Many observers feel it runs contrary to the intent of the legislature for a claimant to get a double weekly check for permanency. In our view, the current IL WC Appellate Court isn’t strongly concerned with that anomaly.

In their argument before the reviewing Court, the Village cited prior case-law whereupon the IL WC Appellate Court had reduced/eliminated dual PPD awards on the same body part after multiple injuries. Accordingly, the Village argued there should be no weekly PPD award on the shoulder injury plus  a weekly wage loss award in the second case. However, the Appellate Court opinion distinguished the facts of the case at hand, pointing out in their prior ruling which eliminated a “dual award”  (specifically City of Chicago v. IIC 409 Ill App. 3d 258 (2011)) they found the two injuries in the City of Chicago case involved the same body part (low back). Also, the first injury had not resolved and it was “impossible to distinguish” which accident caused the condition of ill being. Under such facts, a single PPD value was appropriate and there should not be two PPD awards for what appears to be the same condition of ill being.

In the case at hand however, the Court felt there was an original injury to the shoulders and while there was suspicion of cervical involvement, there was no diagnosis or treatment for cervical issues until after the second accident. Therefore, the Court reasoned a separate PPD award on the shoulder claims was proper, in addition to the subsequent wage loss award for the second injury to the spine, which resulted in permanent restrictions and the need for vocational placement. Based on reduced earning capacity after the second accident, a wage loss award was deemed proper.

A lesson here for the claims/defense industry is two-fold; we must be careful not to “combine” body parts in assessing exposure, where there are separate diagnosis for two separate dates of loss. Also, even where the same body part is involved in subsequent accidents, claims handlers should be sensitive to whether the initial injury has fully resolved with MMI and whether the first injury contributed at all to the second claim. In the event a re-injury occurs and is deemed unrelated to the first, the language from the Court suggests additional PPD value may be awarded even for the same body part of the second injury can be sufficiently distinguished from the first.

Should This Ruling Involve Wage Loss Differential Benefits?

In our view, the problem isn’t with the IL WC Appellate Court’s view of the law, the problem is a claims/rehab issue. We feel it is obvious this guy can and should be making a lot more money than he is making now. If proper rehabilitation was provided, wage loss differential benefits would be a lot less or non-existent. We suggest the Village of Deerfield get an actual vocational rehabilitation plan in place and then file a 19H Petition to cut the current benefits dramatically or completely. They have sixty months to do so under the 2011 Amendments to the IL WC Act. If they want our help at no charge, simply send a reply.

From the ruling:

The claimant was directed to continue work conditioning and was noted to be capable of working at the light-medium physical demand level lifting up to 30 pounds. On April 5, 2010, the claimant underwent a vocational assessment with Vocamotive. He had previously undergone a vocational evaluation on October 13, 2009, by the employer's vocational expert, Brown Rehab Management. Both Vocamotive and Brown Rehab Management noted that the claimant did not have his graduate equivalency degree (GED) and recommended that he obtain it. The claimant took the GED test on March 5, 2011, and passed. The claimant worked with Vocamotive to find gainful employment. Vocamotive noted claimant was no longer able to engage in his customary and usual line of employment. The claimant ultimately secured employment at ATI Physical Therapy as a driver. He began on June 13, 2011, and earned $9.20 per hour. Beginning September 15, 2011, the claimant was given a raise to $10 per hour.

We don’t consider it to be “vocational rehabilitation” for Petitioner to obtain a minimum wage job in his post-injury state. Someone should work to source a real job that pays about what he was making at the time of injury or more. Based on the above findings, Claimant is now entitled to $36,125.96 each year on top of whatever money he makes to drive a car for ATI at minimum wage. He is 57 years old and has a 22 year life expectancy. The award for him to not work for the Village of Deerfield if he lives to a normal life expectancy may cost village taxpayers a tidy $794,771.12. We consider that a painful outcome because he can and should be doing so much more.

If He Can Drive a Car, He Can Get a CDL and Drive Trucks

As we told you last week, this guy is a perfect candidate for CDL training. He should be driving a truck right now and making about what he was making for Deerfield or a lot more. There are available no-lifting truck driving jobs all over Lake County IL that he could be doing right now and completely end this wage loss differential award. As we told our readers last week, throughout the greater Chicagoland area, there are no-lifting CDL jobs that pay $60-200K a year. If Claimant doesn’t like driving a truck, consider lots of secondary jobs in the transportation industry that are currently open and also pay well, like a dispatcher or DOT drug tester.

How About Open Municipal Jobs on the Web Right Now?

But let’s now even go to CDL training—right now the neighboring villages around Deerfield have lots of great jobs advertised on their websites.

·         The Village of Northbrook has a police dispatcher position on the web right now. This is a union position with a salary range of as much as $71,184 a year. Petitioner would need some training but clearly could and should pass any training/test. If he got this job, the wage loss award disappears, saving taxpayers almost $800K.

·         The Village of Winnetka needs an apprentice electric line worker. Again, Petitioner would need some training but his background matches the job’s requirements. The job pays as much as $88,144 per year plus excellent benefits.

·         The Village of Glenview needs 911 dispatchers. The salary is $18.00 - $22.00/hour. Following the training period, part timers may pick up 12-24 hours per week, depending on their availability. The part-time pool is used to fill full time vacancies. Even in a part-time dispatcher job, Petitioner would be making a lot more than he is making at ATI right now.

How About Staffing Jobs?

We looked on the web and found literally thousands of open jobs listed by staffing companies across Lake County, IL where Claimant Garrity lives. Lots of them requiring training but most of them pay more than he is making right now.

This article was researched and written by attorney John P. Campbell and Gene Keefe, partners at Keefe, Campbell, Biery & Associates, LLC. Should you have any questions or comments, please feel free to contact Mr. Campbell directly at jcampbell@keefe-law.com or at 312-907-8222.

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Synopsis: Updated/Crucial Recommendations For Confirmation of Receipt of FMLA Notices. Analysis by Bradley J. Smith, J.D.

Editor's Comment: Two recent federal decisions will likely cause U.S. employers to review their practices to account for using and retaining verification documentation in sending notices under the FMLA. The Family Medical Leave Act (“FMLA”) requires employers to provide general notice to their employees of their FMLA rights, both by posting a notice on the employer’s premises and by including information regarding the employer’s specific FMLA policies and procedures in an employee handbook, as well as specific notice to those employees seeking to exercise their rights under FMLA. The individual notice specific requirements are designated under FMLA regulations. If prejudice to an employee results from defects in the individualized notice, then this can give rise to an FMLA interference claim and potentially unneeded litigation.

In Lupyan v. Corinthian Colleges, the Third Circuit Appellate Court reversed a federal district court’s decision granting summary judgment to an employer, where the ruling rested on a presumption the employee received individualized notice of FMLA rights. The employee, when presented with evidence the employer sent the requisite individualized notice by regular U.S. mail, denied having ever received it. Whether or not the notice was received was an important issue as the mailing would have informed the employee her absences would be counted against her twelve (12) weeks of FMLA leave. If the employee did not receive it, then she could offer an explanation for not knowing that she would be terminated if she failed to return after exhausting her available FMLA leave. 

While many courts recognize the “mailbox rule” as a rebuttable presumption that a document sent by U.S. mail was received by the recipient, the Third Circuit stated the “mailbox rule” is not ironclad, and under applicable law creates a weak rebuttable presumption. Analyzing the evidence before it, the court held the employee’s allegation in her affidavit that she did not receive the FMLA notice by mail was sufficient to rebut the aforementioned presumption and create an issue of material fact that should be resolved by a jury. The Third Circuit made it clear employers wishing to evade material disputes regarding whether an employee has received a required notice regarding his or her FMLA rights should send such a notice using a method that allows for verification upon receipt.  In other words, the notice should be sent via certified mail, express mail with tracking capabilities or some other means proving receipt of delivery. 

Subsequently, the District Court for the Eastern District of Michigan held transmitting FMLA requests for recertification via e-mail, without any proof the e-mail had been opened and received by the employee, could constitute proof of “constructive’ as opposed to “actual notice of an FMLA-related communication.” In Gardner v. Detroit Entertainment, LLC, the court denied the employer’s request for summary judgment on the employee’s FMLA interference and retaliation claims, finding a material issue of fact existed as to whether the employee had received the employer’s request for recertification informing her of the need to recertify her eligibility for intermittent FMLA leave. The question of whether the recertification request had actually been received was material as the employer terminated the employee pursuant to its attendance policy after a number of absences were not excused as FMLA-related due to her failure to recertify by the deadline set forth in the e-mailed notice. Although the employer’s third-party FMLA administrator contended the employee had requested e-mail delivery of notifications, she claimed otherwise, stating she rarely read her e-mails and thus elected to receive communications by mail after the employer retained the third-party administrator to process FMLA requests. None of this would have mattered had the employer sent the employee a certified letter or confirmed the need to recertify orally with an acknowledgement signed by the employee; relying instead on an e-mail left the company unable to conclusively rebut the employee’s claims.

Based on the aforementioned decisions, employers looking to ensure an administrative or clerical issue does not preclude them from proving they provided an employee with a required FMLA notice should consider sending the notice by registered, express or certified mail, requiring return receipt, or by using some other physical or transmittal method by which receipt can be verified and confirmed. At the same time, employers should also make certain they retain the documentary evidence in their personnel files. 

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding the FMLA, employment law, and general liability defense at bsmith@keefe-law.com.

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Synopsis:  Secrets in the Workplace!--This Amendment to the Illinois Eavesdropping Act Affects All of Us! Thoughts and Analysis by Matthew G. Gorski, JD.

Editor’s comment: Several new laws took effect at the stroke of midnight on January 1, 2015. One of those is a major Amendment to the Illinois Eavesdropping Act correcting its prior versions to reflect the Illinois Supreme Court's ruling in People v. Clark. To accommodate the Illinois Supreme Court's ruling finding the prior Illinois Eavesdropping Act unconstitutional, the Legislature required parties need only consent to the recording of private conversations. In other words, the new law attempts to refine the scope of the prior Eavesdropping Act to conversations deemed private. The five (5) notable changes to the law are:

• An eavesdropper is defined as someone who uses an eavesdropping device to secretly record a private conversation without the consent of all parties involved in the conversation. A private conversation is defined as only one of the parties had a reasonable expectation the conversation is private.
• An eavesdropper is anyone who uses a device to secretly record electronic communications without the consent of everyone involved.
• An eavesdropper is someone who discloses the content of a private conversation or private electronic communication without permission.
• The penalty for eavesdropping a judge, law enforcement officer, or state’s attorney was reduced.
• The amendment increases the number of crimes in which law enforcement does not need judicial permission to eavesdrop.

Last year, an earlier version of the Illinois Eavesdropping Act was struck down by the Illinois Supreme Court on First Amendment bases. The Illinois Legislature framed the new Eavesdropping Act amendments on the "reasonable expectation of privacy" test in a further attempt of framing the new law in a manner that would satisfy the Illinois Supreme Court's constitutional issues with the prior law being overbroad. In doing so, the Legislature focused on whether the parties involved in the conversation would have a reasonable expectation whether their conversation was in a private location.

Specifically, the test of whether the conversation can be expected to be private applies two (2) factors: 1) the intent that the conversation to be private; and 2) surrounding circumstances reasonably justifying that expectation of an intent the conversation be private.

How can you stay on the right side of this newly enacted law? It is recommended at this infancy stage of the newly enacted law that you make sure any video security surveillance within your business does not record sound. Although there may not be a reasonable expectation of privacy within the common areas of your business, this newly enacted law is untested in the common areas of a business and/or workplace, and those common areas might fall within the reasonable expectation of privacy of individuals participating in a conversation. We don’t suggest you take a chance your business will become a test case and you will have to incur the cost of litigation.

As previously mentioned supra, another change to the law includes electronic communication. Obviously, this includes emails, but it also includes other various forms of electronic communications, possibly even text messages. Make sure you do not save any form of electronic communication without the consent of your employees, vendors and the public. This should be added to disclaimers at the bottom of your outgoing emails. It may be a good idea to have your employees sign a waiver upon employment providing you permission to save their electronic communications. Additionally, restrictions on private email use in the workplace may allow for avoidance of any issues related to eavesdropping on electronic communications with a possible expectation of privacy. With proper employer policies and disclosure, there should be no expectation of privacy related to company email.

Employers should work with their counsel to develop internal privacy policies to properly plan for compliance with the amendments to the Illinois Eavesdropping Act. Particularly, employers should develop and implement internal policies related to disciplinary meetings to account for the "reasonable expectation of privacy" test. If the disciplinary meetings are held in locations or manners that do not account for a "reasonable expectation of privacy," then any potential recording by an employee could be used in legal proceedings, regardless of an employer’s lack of consent concerns. 

The research and writing of this article was performed by Matthew G. Gorski, J.D. Matt can be reached with any questions regarding the Illinois Eavesdropping Act, general liability defense, employment law, and workers’ compensation law at mgorski@keefe-law.com.

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Synopsis: This Friday John P. Campbell, Jr. and Gene Keefe will be speaking!

Editor’s comment: We will be at the ASSE Three Rivers Chapter at the Hilton on 3003 Corporate West Drive, Lisle IL. The program is designed to help local safety professionals better understand the new law and what a precautions they should take. 

Here is the link to the event page in case you are interested in attending. http://threerivers.asse.org/events/?ee=36

12-29-14; Don't Make the IL WC Matuszczak-Mistake!; Attacking IL WC Wage Loss Claims by Offering CDL Training; New Illinois Governor and Laws and more

Synopsis: IL WC Risk Managers/Claims Handlers—Please Don’t Make the Matuszczak-Mistake!!

Editor’s comment: Last week, in Matuszczak v. IWCC, our Appellate Court, Workers’ Compensation refused to rehear the matter which basically makes their ruling final. The matter involved a Wal-Mart worker who suffered an accepted injury but a dispute arose over the need for work-related surgery. While awaiting the hearing and a ruling, it appears the worker was caught stealing cigarettes and appears to have worked out a deal where he admitted the crime and was terminated for it by agreement.

When Wal-Mart and Wally Matuszczak agreed to part company, they weren’t able to also end/settle the pending workers’ comp claim. What happened thereafter was nothing—the injured worker didn’t return to light work elsewhere and his pending WC claim for surgery drug out for about six months. Obviously, Claimant couldn’t work light work at Wal-Mart any more, as he was canned for being an admitted crook.

What did our reviewing courts do then? Well, they looked at the IL Supreme Court’s controversial ruling in Interstate Scaffolding to create another controversial ruling—despite being offered light work at Wal-Mart, Claimant was awarded about 24 weeks of TTD even though he could and would have been working at light work at Wal-Mart other than for his decision to steal from the company. We urge you not to let miscreants profit from wrong-doing when you are nice enough to offer light work.

What do we feel the mistake was? Well, if you have an injured worker on light work who openly or admittedly commits a crime, we vote you fire him/her for it. If they commit “bad acts” short of a crime but which amount to personnel policy violations, take appropriate disciplinary action and consider contacting defense counsel at KCB&A to discuss. But we feel these two rulings require you to take one more step to avoid the Matuszczak-Mistake—find them alternative light work somewhere else.

In both Interstate Scaffolding and Matuszczak, both reviewing courts but specifically our Illinois Supreme Court “acknowledged TTD benefits may be suspended or terminated when a claimant refuses work within his physical restrictions.” This indicates the burden is on the employer to demonstrate claimant is refusing work within physical restrictions. If you can’t demonstrate the refusal of work within restrictions, you have made a major claims mistake. Based on that language, we suggest you push the worker to locate

·         Charity work at the Salvation Army, a local church or other suitable institution;

·         Part-time sedentary/light/moderate work or

·         Full-time sedentary/light/moderate work.

Consider doing an informal online job search with and for the injured worker. Please note many staffing companies and medical institutions in your area may have lots of sedentary, light and moderate jobs posted on their websites—print them out and give/mail/email to claimant and put them in your file. Encourage the worker to apply and obtain alternate work. Carefully document all of your efforts.

What do you do if claimant refuses to even try to find your recommendations for alternative light work?—see the quote from the IL Supreme Court above. If claimant refuses work within his restrictions, they affirm you can suspend/terminate TTD. The message we are trying to get out to our readers is your duty to demonstrate the refusal isn’t implied when you fire the worker for improper actions/conduct.

In a claim with high-end exposure, we recommend you retain a certified vocational consultant to demonstrate the continued availability of alternate sedentary, light and moderate work and the worker’s refusal to obtain such work. Have the CRC provide and document outplacement services for the worker. If you need a recommendation for a great CRC in your area, send a reply.

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

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Synopsis: Attacking IL WC Wage Loss Claims by Offering CDL Training.

Editor’s comment: Here are thoughts and tactics in dealing with wage loss differential claims under Illinois’ generous workers’ comp system. These claims have become very prevalent and everyone on the other side wants six and seven figures to settle them. The following strategy is a solid approach to completely end the wage loss concept while still providing the worker with reasonable PPD consistent with traditional reserves for impairment/permanency.

Wage loss benefits are defined in Section 8(d-1) of the Illinois WC Act. The IL WC Act says:

§8(d)1: Wage Differential

If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 66-2/3% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. For accidental injuries that occur on or after September 1, 2011, an award for wage differential under this subsection shall be effective only until the employee reaches the age of 67 or 5 years from the date the award becomes final, whichever is later.

We added the bolding of “the average amount which he is earning or able to earn in some suitable employment or business after the accident.” Those are the key words. You have to demonstrate the injured worker is “able to earn” about the same money or more after a work-related accident.

What the defense team at KCB&A found out about two-three years ago is lots of trucking companies will bend over backwards to hire any human of any age with a commercial driver’s license or CDL to drive a truck or other commercial vehicle. There are regional and local driving/delivery jobs that don’t require lengthy periods away from home.

There are lots of low-lifting or no-lifting truck driving jobs out there but the worker has to have a CDL to qualify for such work. Unlike the transportation industry when we started our firm, there are now lift gates, fork lifts and truck jacks and all sorts of equipment to make moving product dramatically easier for truckers or the folks that support them. We also noted lots of my transportation clients were hiring folks who had undergone joint replacement surgeries with significant post-surgical restrictions. Basically, all the “no-lift” truck driving candidate has to be able to do is to drive a car. The equipment on most semi-tractor trailers and lighter commercial vehicles is the same as an SUV.

You might also think a truck driver would have to climb a ladder to get into a cab of a truck. Many trucking companies have folding or fixed staircases attached to the cabs that only require the driver to walk up stairs.

And truck drivers are “able to earn” (per the statute) fairly solid wages, usually starting in the 60’s and going up well into six-figures. Truck drivers are equipment operators and also have computers that monitor them and their work and loads. It isn’t the simplest job but we have seen many folks with eighth grade educations successfully do all necessary job tasks—the equipment/computers are “dumbed-down” to the lowest common denominator.

We have talked to and are working with a certified rehab counselor who is assisting us on rolling out this strategy. So far, we haven’t gone to war or intense litigation on this concept but has proven to be a solid path to get these cases off square one and move to reasonable settlement.

We just did an online search and www.indeed.com has 23,400 Illinois driving job listed. Many of the ads offer bonuses from $2,500-5,000 to sign on. The candidate has to have a CDL.

What you need to put this into place is:

• An injured worker who speaks conversational English (you can’t legally drive a truck without at least conversational English under federal law);
• They can’t be on narcotics from post-injury medical care—our advice is to implement UR to stop/block future narcotic use;
• They have to be physically/medically able to drive a car—you can usually tell if they are driving to their doctor or PT;
• Your willingness to pay about $3,000 for the CDL training program;
• The cost of a DOT physical that is about $100-150—again, we feel this documents is the worker’s medical ability to drive a car; and
• TTD/maintenance during about one month or 160 hours of training.

We have a sample but real offer of CDL training and transportation industry jobs that you can consider. If you want to review it, send a reply. The defense team at KCB&A is happy to assist in implementing this strategy in any pending or future claim. Again, simply send a reply.

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Synopsis: What’s New In Illinois Beginning in 2015.

Editor’s comment: The biggest change to this state in the WC arena is the inauguration of Governor-Elect Bruce Rauner in two short weeks on January 12, 2015. Bruce is the first truly independent Illinois governor of our lifetime. He will take office with we feel should be a focus on ending the Illinois “kleptocracy” or what we also call the “mooch-ocracy” where hundreds of billions of dollars, most of them borrowed, are being funneled to current and retired IL government workers.

Soon-to-be-Governor Rauner wants to make further changes to the IL WC system and the rumors about who is going to be running the IWCC are rampant. A new annual report requires the Governor to submit background and demographic data on all of his appointments to the General Assembly. Watch this space for news as we receive it.

What else has changes in Illinois? Here are a couple of thoughts.

Ban Pot in your workplace—Medical marijuana can and should be banned at work. If you want our KCB&A draft drug and alcohol policy, send a reply.

No more hot-rodding—driving 25-mph or more over the speed limit in our nutty state will expose the driver to loss of your driver’s license or jail time. The new law won’t allow you to get probation or a suspended sentence. You will need a lawyer due to the threat of being sentenced to jail. At some point in speeding, the police may impound and auction off your car. In short, don’t speed on Illinois roads.

Pregnancy rights: Employers must provide "reasonable accommodations" for working pregnant women unless it would impose an "undue hardship" on the business. That includes limits on manual labor, more frequent bathroom breaks and a place to breastfeed. The law also says a pregnant woman can't be forced to take a leave of absence when another accommodation is available and that an employer can't refuse to hire a qualified applicant because of a required accommodation.

Criminal background questions/checking are now last in the hiring process--Illinois now prevents private employers from checking an applicant's criminal history until the final round of job interviews. Currently, only state agencies are banned from asking about criminal history on initial job applications. If you need help with this one, send a reply.

No more underage parties--Beginning Jan. 1, parents and guardians can be fined up to $2,000 if they allow those under 21 to drink in vehicles, trailers, campers or boats under their ownership or control. And if a death occurs as a result, parents or guardians can be charged with a felony.

Bulletproof vests now have to be offered to sworn police officers—the new law requires law enforcement agencies to provide bulletproof vests to officers at the agency’s expense.

There are lots more but we have included the major changes we consider important to you. We appreciate your thoughts and comments.