7-6-15; UPS Wins FMLA Beef with Great Documentation, analysis by Brad Smith; Nathan Bernard Reviews Credit Dispute in Death Claim; What is the Correct Year for Wage Loss Calc by Pankhuri Parti and...

Synopsis: Document! Document!  Document! Federal Judge Tosses Former Employee’s FMLA Claim Against UPS Due to Repeated And Well-Documented Performance Issues. Analysis by Bradley J. Smith, J.D.

Editor’s comment: In Parks v. UPS Supply Chain Solutions, Inc., the United States District Court for the Eastern District of Kentucky entered summary judgment on UPS’ behalf related to its former employee, Gene Parks claims for retaliation under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq. While certain claims remained pending under the FMLA (i.e., interference claim) and the Americans with Disabilities Act (“ADA”) (i.e., failure to accommodate claim), the District Court commended UPS on their documentation and other evidence demonstrating their progressive disciplinary plans. Particularly, the plethora of evidence related to Parks’ repeated performance issues were UPS’ legitimate reason for termination.

UPS hired Parks in February 1999 to work at its Hebron campus as a material handler assigned to UPS’ Honeywell account. His job duties included driving a forklift, moving boxes, picking products, and controlling inventory. From 2002 through and including 2009, Parks’ supervisors filled out fifteen SCS Discrepancy Forms detailing his errors in pallet building, putaway and labeling. In 2009, UPS lost its account with Honeywell. Consequently, UPS transferred Parks to the Birkenstock account. He was still a material handler with new supervisors overseeing his work.

Parks received numerous written warnings over the remainder of his time with UPS. Finally, after reviewing the numerous performance issues and a final warning, UPS decided to terminate Parks. At the time of his termination, he reiterated that he would be scheduled for surgery related to a spine issue within the coming months and needed UPS' insurance to cover his medicals costs for the surgery. UPS tendered him a COBRA package at the time of termination, but Parks immediately threw it away asserting it was “unaffordable."

During Parks’ employment, he was approved for, and also took numerous leaves of absence. Specifically, in late 2003, he was on a leave of absence for an allergic reaction and a blood clot. He also had leave of absences in July 2003 and November 2004 to deal with complications from a shoulder injury that derived from a prior car accident. In June 2004, January 2005, and February 2006, UPS gave Parks more time off to care for his wife’s serious medical issues. Notably, UPS never interfered with him taking leave on those occasions. UPS granted Parks FMLA intermittent leave in February 2010 for neck pain.

The District Court analyzed the retaliation claims under the well-established McDonnell-Douglas standard to determine whether Parks’ FMLA retaliation claim would survive summary judgment. Although it was easy for Parks to meet his prima facie case of retaliation under the first prong of the test—due to the timing of his termination—in response to UPS bringing forth legitimate and repeated performance issues demonstrating their reasons for terminating Parks, Parks failed to demonstrate any pretext. Accordingly, the district court granted UPS summary judgment and dismissed Parks’ FMLA retaliation claims.

Despite the survival of a portion of Parks’ claims, UPS demonstrated a proper progressive disciplinary plan (both in procedural rules and subjective application). Importantly, UPS maintained records of its prior performance issues with Parks, and also implemented progressive discipline due to his numerous performance issues. Had UPS not properly documented this process, it arguably would have been easier for Parks to demonstrate a material issue of fact requiring a jury trial. Instead, due to the plethora of documentation and testimony related to legitimate performance issues, UPS was able to demonstrate that it maintained legitimate reasons for terminating Parks.

We want our readers to know the defense team at KCB&A handles more than work comp in defending our clients. This article was researched and written by Bradley J. Smith. Brad can be reached for questions, concerns, or discussion regarding the defense of  FMLA, employment law, and general liability claims at bsmith@keefe-law.com.

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Synopsis: Prevent Double Dipping! It Is Imperative Work Comp Settlement Contracts or Commission Decisions Clearly Reflect Credit to be Taken from Final Payment.

Editor’s comment: In the Estate of Burns v. Consolidation Coal Company, 2015 IL App (5th) 140503 (June 30, 2015), the Fifth District Appellate Court clarified how an employer is entitled to offset the amount of federal claim benefits paid at the same time state workers' compensation benefits were paid. To be very clear, it is NOT by verbal agreement between the parties. Be warned, this may not adequately protect an employer from still having to pay the full amount of the award, and then seek significantly increased litigation costs to recoup any potential credit from benefits that may have overlapped from two or more sources, to prevent what is called “Double Recovery”. Further, even if the credit is stipulated to by the parties at hearing, or documented in a settlement contract approved by an Arbitrator/Commissioner, it still may not be enough to prevent the continued time and expense of having to seek the credit via the proper channels, but the defense team here at KCB&A strongly recommend it as absolutely necessary to protect your statutory credit in order to seek to offset it later.

Nota bene (note well): In claims dealing with a potential credit, be prepared to pay the award/settlement in full to avoid the risk of penalties and fees for nonpayment. Then you must file suit to offset any credit. Make sure there is adequate written documentation in the record (or contracts) of that credit at every level of the litigation process.

In the case at bar, and to attempt to make a long story short as the procedural history is somewhat convoluted, the estate of a deceased Petitioner was awarded death benefits and burial expenses under the Workers' Occupational Diseases Act after the deceased Petitioner died as a result of diseases arising out of his employment as a coal miner for 38 years. The employer also conceded liability in a concurrent federal claim which paid the widow amounts during periods of the same time the WC benefits were received. Specifically, the estate received federal death benefits from the U.S. Department of Labor via the Black Lung Trust Fund. Apparently, when the employer went to pay the WC award they had a verbal agreement with Petitioner’s counsel who handled both the state WC claim and Federal Black Lung claim that they would subtract the Black Lung credit and just issue the WC check for the remainder amount.

Admittedly, in a the majority of these claims this is a non-issue and may likely be the more practical approach rather than suing the estate to re-coup the overpayment resulting in even further litigation and distress to all parties. The testimony regarding this oral agreement was that it was reached between the attorneys of both parties "because it's the same agreement we reach in all of these death cases where there is a federal claim and there are benefits that overlap." Simply put, there is no dispute the employer is entitled to the credit. But this short-cut approach to recouping credit was found to be improper after disputes arose when the handling partner for the estate left the firm and the estate claimed they were never aware of the credit to be taken, which they then objected to and filed a Section 19(g) motion to obtain a state judgment on the amount claimed.

When an employer fails or refuses to pay a final award, Section 19(g) provides a statutory remedy to enforce the judgment in the Circuit Court. Commission approval of a settlement agreement constitutes a decision of the Commission and is the equivalent of an award within the meaning of Section 19(g). However, in the context of a Section 19(g) proceeding, the Court can only consider the plain language of the decision or settlement agreement.

Here, initially the employer made no claim for credit and did not present any evidence, or later in the appeal sufficient evidence, of the oral agreement between counsels. Neither the Arbitrator's order nor the Commission's decision makes any reference to credit claimed. Had the credit been presented to the Commission and approved by it at hearing, or even by a settlement agreement approved by the Commission, it would be an award within the meaning of Section 19(g). However, because the credit was not presented, either via an approved settlement agreement or at hearing, in the context of a Section 19(g) proceeding, the Court could only review the Commission's award or approved settlement contract.

Importantly, even if the credit had been documented, the Code of Federal Regulations in this specific claim, provided a mechanism for the recovery of any overpayment of federal black lung claims, NOT in a Section 19(g) proceeding. Again, there is no dispute the employer is entitled to the credit. While an employer may ultimately obtain a credit, it is not entitled to that credit in a proceeding under Section 19(g) and may still have to pay the full amount of any award, then properly seek to assert that credit elsewhere via proper channels. This is true even if the award/settlement documents the credit clearly.

This article was researched and written by Nathan S. Bernard, J.D. Please feel free to contact Nathan at (312) 756-3726 or nbernard@keefe-law.com with any comments, questions, or concerns.

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Synopsis: The IL Appellate Court, WC Division Held the Weekly Wage Differential Benefit an Injured Worker Receives Is Based On the Statewide Average Weekly Wage For The Year The Worker Was Injured. Thoughts and Analysis by Pankhuri K. Parti, JD.

Editor’s comment: In a decision confirming the intent of the legislators while writing the Workers’ Compensation Act, the Appellate Court upheld a decision of the Commission when it ruled the date of the claimant’s injury controlled the maximum rate of wage differential benefits the claimant could receive.

We believe this to be a positive outcome for the employers and insurers of Illinois, who would have had to pay much higher wage-differential benefits had the Court not limited the benefits to the maximum rate applicable at the time of the injury. This is especially true as the maximum rates for the benefits are adjusted yearly and cases can take up to six years to go through the entire appeals process.  

Facts and Procedural History: According to the undisputed facts of the case, the claimant was injured acting in his capacity as a hoisting engineer when he fell to the ground from a height of several feet and sustained injuries to his right shoulder and cervical spine. He received treatment and underwent surgery on his right shoulder in February 2007 and spinal fusion surgeries in December 2007 and June 2008. A functional capacity evaluation eventually found him capable of working light to medium duty and permanent restrictions were recommended, which precluded him from returning to work as a hoisting engineer. Evidence presented during arbitration showed at the time of the arbitration the rate of pay for a hoisting engineer with the employer was $45.10 per hour.

In her decision the Arbitrator found Claimant has suffered an injury arising out of and in the course of his employment. It was also found Claimant was entitled to wage differential benefits since he was permanently partially incapacitated from pursuing his usual and customary employment. Specifically, and more relevant to this article, the Arbitrator awarded $982.67 per week. Upon an appeal, the Commission modified this decision by reducing the figure to $840.65, the maximum weekly benefit allowable under section 8(b)(4) of the Act based on the claimant’s 2006 injury date. This rate was also affirmed by the Circuit Court.

The Decision: In appealing this modification of the Arbitrator’s decision, Claimant argued the maximum rate applicable to his award should be based on the State AWW at the time of his May 2012 arbitration hearing rather that the State AWW at the time of his December 2006 accidental injury.

In reaching its decision the Appellate Court looked at the language of the Act and considered the issue one of statutory interpretation. It quoted Section 8(d)(1) of the Act and stated the language made it clear the section was limited by the maximum amounts fixed in paragraph 8(b) of the IL WC Act and case law had long since established the maximum rates set forth in section 8(b)(4) of the Act were applicable to the wage differential awards. The Court also held the amendments effective July, 20 2005 had included express language concerning wage differential awards and the maximum wage differential benefits were 100% of the State AWW in covered industries under the Unemployment Insurance Act.

The Court also disagreed with Claimant’s argument since the Act had been consistently interpreted to require wage-differential awards to be calculated based upon the claimant’s earnings at the time of the hearing, the legislature must have intended the State AWW at the time of the arbitration hearing to be used to determine the wage-differential benefits. While the Court agreed prior decisions ruled it was the employee’s earnings at the time of the arbitration hearing which determined wage-differential awards, it also felt Claimant’s situation was distinguishable from those instances since it involved the application of the appropriate maximum rate under the IL WC Act.

It was the opinion of the Court Claimant failed to provide any authority in support of his arguments and its own review of the applicable case law reflected the opposite – it was the date of the injury which controlled the maximum rate applicable. While citing numerous opinions in support of its decision, the Court also referred to a Supreme Court decision in Grigsby v. Industrial Comm’n wherein the Court held the law in effect time of the injury determined the rights of the parties. Finally, the Appellate Court noted if the legislature had wanted the date of the hearing to control the applicable maximum benefits rates, it would have amended the language of the Act when it enacted its amendments in July 2005.

The Appellate Court also disagreed with Claimant’s argument that limiting an employee’s wage differential to the State AWW at the time of the injury was against the Act’s purpose of thoroughly compensating the injured workers. Claimant argued the State AWW at the time of the injury placed him in the financial condition he would have been in if the injury had never occurred. While the Court agreed with this, it noted the purpose of Section 8(b)(4) of the Act was to limit recoveries and depending on the facts of each particular case, the application of the maximum rates could result in no change to the wage-differential award, a significant decrease to the award, or something in between. As a result the Appellate Court found claimant’s arguments to be unpersuasive and not worthy of reversing the decision of the Commission.

This article was researched and written by Pankhuri K. Parti, JD. You can reach Pankhuri 24/7/365 for questions about WC at pparti@keefe-law.com.

6-29-15; Gay Marriage as It Relates to Workers Comp; IL PPD Accrues and Due After Death of Petitioner, analysis by John Karis, JD; EEOC Hits UAL But Ignores Gov't Discrimination of Disabled Workers...

Synopsis: Whether You Like This Controversial Topic Or Not, You Need To Know the WC Rules on Gay Marriage for Your Risk Management/Claims Job.

Editor’s comment: Last Friday, SCOTUS effectively mandated gay marriage is here to stay in all 50 states. If you aren’t happy about it for religious or other reasons we understand but as adults we have to deal with what is in front of all of us. A clear effect of the U.S. Supreme Court’s decision legalizing gay marriage nationwide is same-sex couples can travel, vacation or reside out of state knowing their marriages will be recognized across our country. Illinois legislatively approved gay marriage in our state starting in 2014. Whatever the outcome, our highest court’s ruling was not expected to directly affect Illinois law since the case was focused on court judgments and not unions approved by a legislature, as in Illinois. The SCOTUS ruling means 14 other states will have to stop enforcing legislative or judicial bans on same-sex marriage, effectively “approving” or mandating recognition in all 50 states.

The freedom to reside elsewhere on either a temporary or permanent basis along with freedom to travel was among the things Illinois’ gay couples were celebrating after Friday’s decision. Here are other aspects of the ruling:

For Illinois and All of the United States, Gay Marriage Is Here To Stay

The Illinois General Assembly approved gay marriage in late 2013 with an effective date in 2014 and former Governor Quinn signed the bill. This made Illinois the 16th state to allow same-sex unions. Since the law took effect in June 2014, more than 10,400 same-sex couples have married in Illinois. Cook County Clerk David Orr says more than 7,500 marriage licenses have been issued in the Chicago area. The SCOTUS ruling effectively closes the door on any possibility our Legislature or Courts could one day reverse the law under a conservative regime.

The Rights Married Gay Couples Have In Illinois Will Travel With Them To Other States; The Rights Gay Couples Have From Marriages In Other States Will Follow Them Here

Prior to the U.S. Supreme Court decision, Illinois couples could still have faced issues in the remaining states which had bans on gay marriage. When relocating, a gay spouse could be denied workers’ compensation benefits deriving from their relationship. Now, it appears such concerns are gone and not coming back. One of the two parts of the U.S. Supreme Court’s decision specifically dealt with the cross-border issue, finding same-sex marriages “legal” in any state must be recognized by all states.

The other part of the SCOTUS ruling declared gay marriage bans in four states, Kentucky, Michigan, Ohio and Tennessee were unconstitutional, effectively making same-sex marriage fully legal throughout the United States. A gay marriage from any state is going to have to be accepted by the IL Workers’ Compensation Commission and the IL reviewing courts.

No One Knows What To Do With Civil Unions—Our Advice to Gay Couples is Keep It Simple and Get Married

Illinois created civil unions in 2011 as a precursor to gay marriage. The law on civil unions makes the partners in a civil union “spouses.” We are not sure if the surviving spouse in a civil union has to be legally treated as a widow or widower—we think so but it is hard to be certain. See this link from the Illinois Department of Insurance: http://insurance.illinois.gov/General/civilunions.asp We don’t know if the SCOTUS ruling is going to make civil unions a nationally protected legal status. We assume other states may or may not fight that issue and suggest marriage is the simplest way to clarify any concerns moving forward as we are sure the SCOTUS ruling protects marriage and leaves “civil unions” in limbo.

How Does Gay Marriage “Translate” Into IL WC Rights and Benefits?

Well, our research indicates the word ‘spouse’ is mentioned in the IL WC Act on five occasions. Gay couples married in Illinois or any state are now legally ‘spouses.’ Basically, the AWW, TTD and PPD rate calculations are impacted by marital status—if you aren’t sure how, please send a reply. A spouse who remarries can have death benefits cut to a lump sum payment of two years in the right circumstances. Other than those legal facets of the term, WC benefits are not dramatically changed.

The words ‘widow’ or ‘widower’ appear in the IL WC Act on 30 occasions. The surviving spouse of a gay marriage is now legally a ‘widow’ or ‘widower.’ The words widow/widower only appear in Section 7 of the Act which provides for death benefits due to work-related injuries or illnesses. The defense team at KCB&A unequivocally asserts it is our reasoned legal opinion gay couples who tragically lose a partner due to a work-related accident or illness will have the same rights and benefits as all couples moving forward. For claims handlers who aren’t fully aware of how to investigate, document and properly pay death benefits under Section 7, we recommend you contact our KCB&A defense team at no charge and we can greatly simplify all aspects of it. Please remember death benefits in Illinois can cost an employer or insurance carrier/TPA up to $1,770,327.00 right now—please note the numbers are going to go up this week and on July 15. On July 20, 2015, our law partner Shawn R. Biery, JD, MSCC will have a new updated IL WC rate sheet for our readers to document the expected benefit increases. Send Shawn an email if you want his new IL WC rate sheet when ready. Our point is for a widow or widower, gay or straight, you don’t want to get IL WC death benefits wrong, as there is too much at stake.

How Does Gay Marriage Affect WC Benefits in KCB&A’s Other Covered States/Offices in Indiana, Wisconsin, Iowa or Michigan?

If you have questions about WC benefits in Hoosier-land or Indiana, contact Kevin Boyle kboyle@keefe-law.com or Pankhuri Parti pparti@keefe-law.com. For issues in Cheeseland, ooops, we mean Wisconsin, contact Jim Egan at jegan@keefe-law.com or Matt Ignoffo at mignoffo@keefe-law.com. For Iowa claims and benefits, contact Dan Boddicker at dboddicker@keefe-law.com. For Michigan WC claims, contact Ellen Keefe-Garner at emkeefe@keefe-law.com. Or just send a reply.

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

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Synopsis: IL WC Appellate Court Rules Accrued PPD Benefits Are Due To An Injured Worker’s Estate. Thoughts and analysis by John A. Karis, J.D.

Editor’s comment: In Bell v. IWCC (issued May 1, 2015) our Workers’ Compensation Division of the Appellate Court of Illinois reversed the IWCC and sent a claim back for a calculation of PPD and an award due to the estate of an injured worker. The majority ruling explained the basis for allowing Claimant's estate to seek and obtain permanent partial disability (PPD) benefits accrued and would have been arguably due to Claimant-decedent prior to her death.

Quick Thoughts From Your Editor:

·         We are glad to see the Appellate Court, WC Division concedes the IL WC Act mandates IL PPD benefits “accrue” on a weekly basis—we note our activist reviewing courts don’t seem to follow that simple rule in

o   Greene Welding and Hardware v. IWCC where they changed traditional views of the IL WC Act to find amputation benefits magically, completely and instantaneously accrue in the minute where the employer or insurance carrier/TPA learns of bone loss—from an academic perspective, we don’t agree that is what the IL WC Act says;

o   We have no idea what weekly “accrual” of PPD means in the IL Supreme Court decision in Beelman Trucking v. IWCC where an injured employee is now allowed to get lifetime weekly statutory total and permanent disability benefits along with “doubled” weekly PPD benefits arising under Sections 8c, 8d or 8e at the same time. We assert the legislature intended lifetime benefits to be the sum of what an IL employer owes.

·         We also feel the outcome of this ruling is anti-business and agree with our great and now-deceased Arbitrator Neva Neal-Mundstock and the solid appellate ruling from the IWCC panel. What possible reason is there for permanent partial disability benefits to be paid to folks that aren’t married to, children of or in any way dependent on decedent? Why do accrued PPD benefits have to be paid to distant relatives or legatees eight years after the accident and a half-decade after the passing of the injured worker? It again feels like Illinois business always has to lose money by paying unneeded benefits in the WC system in this state. With respect to the august members of our Appellate Court, WC Division—they may be signaling to our legislature the need to change the IL WC Act and modify the statutory language to have it make more sense.

There is no question Claimant Nash filed an Application for Adjustment of Claim under the IL WC Act, seeking benefits for a fall-down injury sustained while working for Respondent. Prior to the arbitration hearing, Claimant Nash died of causes unrelated to her work accident. Ms. Nash’s sister and the administrator of her estate filed an amended Application, substituting Claimant Bell as the new party-petitioner. The new Claimant sought recovery of the PPD benefits accrued from the date Ms. Nash reached MMI until her death on August 19, 2010. The employer disputed Claimant’s right to recover such benefits, arguing any PPD benefits to which Claimant would have been entitled abated upon her death.

We are wholly unsure why the issue of accidental injury was stipulated to at hearing, as the burden of proof would have been on the new Claimant to prove an injury to decedent. This would have brought various evidentiary challenges which might have resulted in a compromise settlement. It is also difficult to understand how this simple fall-down claim would merit six years of litigation, at what will now be the fifth level of hearing or appeal—the defense legal fees might exceed the overall exposure.

After conducting the hearing, Arbitrator Neal awarded temporary total disability (TTD) benefits and medical expenses and found Claimant sustained permanent partial disability from her work injury. However, the arbitrator ruled any PPD benefits which accrued prior to the passing of decedent’s death abated with her death and declined to award any such PPD benefits to her estate. Arbitrator Neal noted the IL WC Act “allows dependents to recover from the economic loss caused by [Claimant’s] injury,” and concluded “[a]llowing [Ms. Nash’s] estate to collect permanency benefits, where she had no dependents, really serves no purpose.”

Claimant appealed Arbitrator Neal’s decision to the Illinois Workers’ Compensation Commission. The Commission unanimously affirmed and adopted her decision. Claimant then sought judicial review of the Commission’s decision in the Circuit Court of Coles County, which confirmed the Commission’s ruling.

This issue presented on appeal is whether the estate of an unmarried Claimant who dies without leaving any dependents may recover PPD benefits accrued prior to the employee’s death, or, alternatively, whether any claim to such benefits abates with the injured worker’s death.

The Appellate Court indicated the IL WC Commission erred in their interpretation of Section 8(e)(19) and Section 8(h). The Appellate Court noted these provisions merely establish to whom benefits will be paid if the employee dies with a spouse or dependents before they have been fully compensated for the work-related injury. The statute does not limit the ability of a deceased employee’s estate to collect accrued, unpaid benefits were due and owed to the employee while he/she was alive. Neither provision addresses what happens when an employee dies without leaving a surviving spouse or any surviving dependents, as in this case. Accordingly, neither provision should be read as barring an employee’s estate to collect accrued PPD benefits under such circumstances.

In our opinion the Appellate Court set the precedent to allow Claimant’s estate to inherit accrued PPD benefits owed. They sent the matter back to the IWCC to determine the amount due to the estate.

This article was researched and written by John Karis, J.D. You can reach John at jkaris@keefe-law.com. We appreciate thoughts/comments. Post them on our award-winning blog.

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Synopsis: What We HATE about IL State Gov’t, the City of Chicago and Some Local Gov’t Units—Unlike Private Sector Employers, Some Gov’ts Pay Endless TTD but Don’t Accommodate Injured Workers Into Open Positions.

Editor’s comment: We saw a recent headline where the federal EEOC took $1 Million from United Airlines to settle a disabled-workers suit. In 2013, the Supreme Court refused to reconsider a 7th U.S. Circuit Court of Appeals ruling in EEOC v. United Airlines Inc., which held reasonable accommodations under the Americans with Disabilities Act requires U.S. employers to reassign employees to vacant positions when the employee cannot be accommodated in his/her current position. The EEOC charged by requiring employees with disabilities to compete for vacant positions for which they were qualified, the company's practice frequently prevented disabled workers from continuing employment with the airline.

The EEOC said in a statement the airline will pay $1 million to a small class of former United employees with disabilities and make changes nationally, under a consent decree. United Airlines will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process, the EEOC said.

While many cost-conscious Illinois cities, school districts and others will follow this rule, we assure you IL State Government, the City of Chicago and some local governments continue to refuse to do so. The reason very few folks beef about it is the workers keep getting paid by taxpayers with TTD, TPD or generous disability pay for months and years. In some cases, workers are provided “odd lot” total and permanent disability benefits for life despite the unquestioned fact the workers could be placed, like UAL now has to place such workers, in other open positions.

What is sauce for the goose ought to be sauce for the gander—we ask the EEOC to stop attacking private industry while giving a pass to the public sector. You may note the State of IL and City of Chicago, along with the CTA and Chicago Public Schools have combined debt of over $150B. One of the reasons for that high debt is the endless payment to former workers who no longer work for taxpayers when they could be put to available work and save billions.

Does or Should this Ruling End Fake Police/Firefighter Pensions?

In Illinois, a police officer/firefighter only has to demonstrate they are restricted from their police or fire job to be entitled to a lifetime pension. In rulings like the 2014 Appellate decision in Pedersen, et. als. v. Village of Hoffman Estates, the municipality owes lifetime line of duty disability pension benefits and lifetime family medical coverage for a man with moderate hearing loss due to an accidental siren which caused hearing loss. We assure our readers Plaintiff Pedersen isn’t deaf; he needs hearing aids to function normally. With respect to him and agreeing he has a disability requiring accommodation, we don’t consider that a life-disabling and catastrophic condition. This man can and should be working somewhere where hearing aids could allow him to safely be a building inspector or perform another available municipal job. If you go to the Village of Hoffman Estates website, you will note this year they filled Administrative Staff Assistant and Front Desk Customer Service Rep positions—Mr. Pedersen can safely do such jobs with hearing aids.

Hundreds of “not-so-disabled” police and firefighters across our state could be brought back to other available municipal jobs, as this EEOC ruling and settlement dramatically requires. If that happens, workers like Mr. Pedersen and others would not be put on our dole to receive lifetime line-of-duty disability pensions with taxpayer-funded family healthcare benefits which cost IL taxpayers billions. Current workers already on line-of-duty disability pensions should be taken off the fake pensions and returned to other available work. They can and should do lots of other available municipal jobs with reasonable accommodation. Trust us, the police officers and firefighters getting the pensions aren’t going to complain when they are getting thousands of our tax dollars without having to work—someone has to complain about it for taxpayers. We truly feel the General Assembly should investigate, hold hearings and consider legislation over this issue.

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

Staffing Company Risk Manager Alert! by Joe D'Amato, JD; IL WC Rules on Staffing Companies/Employees; Colo. Marijuana Ruling and What It Means to You and more

Synopsis: Staffing Company Risk Manager ALERT!—National Staffing Company Agrees to Implement Major Company-Wide Changes Following OSHA Beef, analysis by Joe D’Amato, J.D.

Editor’s Comment: The defense team at KCB&A has a number of WC/EPLI/GL Staffing Company legal specialists, including our law partner and defense team leader, Joe D’Amato. Joe confirms legal issues for staffing organizations have unique challenges for risk and safety managers. This new action and eventual agreement by OSHA is a must-read for anyone who uses staffers or handles risk in that growing industry.

In 2013, OSHA announced an initiative to improve workplace safety and health for temporary or staffing workers, who are at increased risk of work-related injury and illness. The initiative included outreach, training and enforcement to ensure temporary workers are protected in the U.S. workplace. OSHA and the National Institute for Occupational Safety and Health or NIOSH have issued a "Recommended Practices*" publication that focuses on insuring temporary workers receive the same training and protection permanent employees receive.

Marathon Staffing Services, a staffing service placing 15,000 workers annually throughout several states, was cited by the U.S. Department of Labor (DOL) for not providing hearing testing for employees exposed to high noise levels while working on assignment at a Massachusetts concrete manufacturing facility. As part of the company’s settlement with the U.S. DOL/OSHA, it agreed to implement “enhanced” workplace safety and heath protections for all client businesses where it places temporary workers; not just the concrete manufacturing facility were the violations took place.

The enhanced workplace safety measures are wide ranging and include:

• Initial and periodic safety and health inspections or audits at client work sites to ensure working conditions meet OSHA standards;
• Comprehensive safety training for Marathon’s account executives and sales representatives;
• Development of written contracts with its clients specifying respective responsibilities to develop safety and health programs applicable to each workplace where Marathon will supply temporary employees and
• Hiring or assigning a qualified safety and health professional to review and update a checklist to address foreseeable safety and health concerns at client workplaces.

The U.S. DOL regional solicitor for labor noted the settlement agreement with Marathon rippled beyond the case and “(o)ther suppliers and employers of temporary workers can and should take heed to ensure that all employees...work in an environment that enables them to come home each day safe and healthy.”

We are certain the cost of providing hearing tests for employees assigned to one location is incredibly minor compared to the costs of implementing major company-wide changes. An easy way to avoid costly legal entanglements with the DOL is to simply follow OSHA guidelines without deviation. If you are with or use a staffing company and need assistance in handling OSHA investigations or for OSHA compliance concerns involving the staffing industry, please contact Joe D’Amato as indicated below. Please note our thoughts on this issue are strictly legal in nature; KCBA does not provide safety advice or consulting services. If such services are needed, a licensed safety expert should be contacted.

This article was researched and written by Joseph D’Amato, J.D. He can be reached on a 24/7 basis for questions, legal concerns and comment at jdamato@keefe-law.com.

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Synopsis: The Illinois Workers’ Compensation Rules on Staffing Employees—Check Your Agreement!

Editor’s comment: Your organization may have temporary staffing workers on a temporary basis—to fill a need for a short period of time. Your company might also have staffing employees on a regular and continuing basis where the workers are vetted, hired by, paid and fully report to a staffing company and its managers but the line workers and managers work solely at your business locations. What is the rule if such a staffing worker or manager is injured in your workplace—who has to investigate, accept and pay IL WC benefits?

In such claims, the IL WC Act indicates both employers are simultaneously and continuously liable for all WC benefits. What the IL WC Act also outlines is one of the employers will have “primary liability” for a loss. In these situations, the employer directly benefiting from the services of the employee at the time of the accident will be found to be the primarily responsible party. Secondary liability will be on the company providing the worker—unless there is an agreement to the contrary.

However, if the borrowing employer does not pay or fails to timely pay benefits, the loaning or original employer must pay. The IL WC Act is clear--liability is joint and several in such situations. As a simple example, your company needs an admin staffer due to the pregnancy of a “regular” worker. You call ABC Staffing and they send a qualified admin over to take the position. ABC Staffing selected the worker, hired them and they will pay the worker from monies being sent to them from you. If/when that admin worker is injured due to a work-related occurrence, who owes the benefits? Well, if there is nothing in your agreement with ABC Staffing about primary liability, you do.

Our strong message to IL risk managers—check the agreement with your staffing agency/provider to see who has the risk. If you aren’t sure or the agreement is silent, the defense team at KCB&A is happy to assist at no charge—send us your agreement. What you don’t want is to find out after the accident who owes thousands of dollars in benefits.

Please also remember the concept of joint and several liability should protect you from third party liability if a staffing worker is injured—they should not be able to maintain a lawsuit against you in Circuit Court for what might arguably be negligence in your workplace. For example, if one of your workers inappropriately leaves an area with a slippery substance on your floor and a staffing worker falls, you and/or the staffing agency should only owe workers’ comp benefits. Depending on the agreement, you or the staffing company should be able to pay those benefits and both companies should be insulated from third party exposure. Consistent with Section 5 of the IL WC Act, you and the staffing company should be able to obtain dismissal if the staffing worker sues you for the negligence of your worker.

Again, remember the unstated rule is to insure the injured employee has WC insurance coverage from the staffing company or you as their client resulting in certain and rapid payment of WC benefits for the loss. If the staffing agency is primarily liable or not, you want a COI or certificate of insurance from them to insure there is some level of joint protection of your company and workers. There are many legal dangers for not having WC coverage for all losses. Please also note it is a crime and WC fraud to present a fake COI in this state. It is incumbent on risk managers and defense attorneys to make sure which entity has primary liability in defending or  managing such claims.

Who is responsible for compliance with OSHA when staffing employees are involved?

Is it the agency supplying the employees or the client employer for whom they are working? OSHA asserts it is a shared responsibility. Because of its ongoing relationship with the worker, the staffing service has some record-keeping and training obligations. However, as you can see from Joe D’Amato’s article above, primary responsibility resides with the client employer, which typically owns, creates and controls conditions at the workplace. For example, it’s the employer that insures their machinery is properly guarded and necessary personal protective equipment is present and utilized. However, the staffing agency would maintain medical monitoring and exposure records created by a client employer on staffing employees.

The issue of “client employer” versus “temporary service agency” responsibility is focused mostly on the area of employee training. There’s no implied waiver of safety training requirements simply because a staffing employee’s work or duties are of short duration. For instance, training or safety instruction must be given to construction or manufacturing employees, even for very short-term jobs. OSHA often finds permanent employees are properly trained as required by a particular standard but staffing counterparts aren’t causing dramatically increased risk and injuries. That potential results in OSHA citations and the possibility of significant penalties.

If you have questions or concerns about liability in relation to staffing companies or employees, contact Joe D’Amato at the email above or sent a reply. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: Colorado Supreme Court Upholds Termination of Medical Marijuana-Smoking Employee—When Are You Going to Move to Zero-Tolerance?

Editor’s comment: In Coats v. Dish Network, the Supreme Court of Colorado unanimously held an employer may justifiably terminate an employee for their off-duty conduct in using marijuana, despite the employee’s adherence to state law governing medical marijuana.

The core issue before the Court was whether the use of medical marijuana, in compliance with the State’s Medical Marijuana Amendment, but in violation of federal law, is to be considered a “lawful activity” under Colorado’s Lawful Activities Statute. Affirming the lower court’s decision by a vote of 6-0, the Supreme Court ruled against Plaintiff Coats, a paraplegic employee. The Supreme Court arrived at its conclusion by reasoning the plain language of the term “lawful” within Colorado’s Lawful Activities Statute refers only to those activities that are clearly “lawful” under both state and federal law.

Plaintiff Coats worked as a telephone customer service representative for Defendant Dish from 2007-2010, when a routine company drug test revealed the presence of tetrahydrocannabinol or THC in his blood—THC is the major psychoactive ingredient in marijuana. As the employer had a “zero-tolerance” drug policy, it subsequently terminated Coats. Coats filed suit for wrongful termination, arguing he should have been protected by Colorado’s Lawful Activities Statute, which makes discharging an employee based on “lawful” off-duty conduct an unfair and discriminatory labor practice. The THC detected in the routine drug test was the result of consumption of medical marijuana. Coats had a valid state license to use marijuana or THC in order to reduce the pain of frequent muscle spasms—a symptom not uncommon among paraplegics. Therefore, Coats argued he was terminated because of “lawful” use of medical marijuana under Colorado law.          

Who Defines “Lawful?”

The Colorado Lower Court of Appeals reasoned the employer’s actions did not violate the Lawful Activities Statute because medical marijuana remains prohibited under federal law. The Court analyzed the meaning of the word “lawful”—“that which is permitted by law”—to reason for purposes of the statute, “lawful” is used in regard to activities governed by both state and federal law.

The Colorado Supreme Court adopted the Court of Appeals’ majority opinion, finding the term “lawful” to mean “not contrary to, or forbidden by law,” without restrictions. The federal Controlled Substances Act (the “CSA”) prohibits the use, possession, and manufacture of marijuana, makes the use of medical marijuana unlawful under federal law. Thus, Coats’ behavior was not a “lawful activity” under Colorado’s Lawful Activities Statute, and the highest court held Coats’ termination to be valid.

How Does This Ruling Affect Employers Across the U.S.?

The Colorado Supreme Court’s ruling indicates other states with statutes protecting “lawful” off-duty conduct should still be bound by federal law in its characterization of what constitutes “lawful” conduct. While the Coats v. Dish Network ruling is legally binding in Colorado alone, the decision may serve as persuasive authority in similar cases in other jurisdictions. Colorado is way ahead of the country on legalizing marijuana. They are one of a few states that already have statutes defining lawful off-duty conduct.

Please also remember it is not inconceivable to imagine the United States may some day decriminalize marijuana. If/when that happens, it may confuse this ruling and some states’ workplace restrictions on marijuana use. We feel Colorado and other states should avoid the term “lawful” and simply allow employers to block marijuana use at work, as IL law does.

As we indicate above, Illinois law allows an employer to bar marijuana use from your workplace. If you don’t take advantage of this provision of the law, your company may have increased risk if a marijuana user causes an accident or injury. For those reasons, we strongly recommend you get an Alcohol and Drug-Free Workplace policy in place right now—there is a new bill on Governor Rauner’s desk for his signature--it decriminalizes possession of small amounts of marijuana. Medical marijuana will also roll out across our state at some future point. This has to be a concern for all Illinois employers and you need to understand the importance of blocking the use of marijuana in your workplace. The defense team at KCB&A has a free policy for you to consider and implement—if you want to review it, simply send a reply.

We thank the reader who gave us the heads up on this important ruling. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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In Your Workplace!

We are pleased to announce an upcoming half-day breakfast seminar on 7/17/2015 for our valued clients!

The topics include:

·        Supervisor Substance Abuse Training (meets DOT requirements)

·        The Legal aspects of Opioids and Medical Marijuana in workers’ compensation

This helpful seminar is designed to assist supervisors in addressing these critical issues in your workplace. Although the program complies with the Department of Transportation requirements, the material applies to all industries in addressing workplace substance abuse. Please let us know if you are interested in attending our upcoming seminar. Full details will be forthcoming. We will hold this seminar at one of our valued clients, Burke Beverage, Inc.:

Address: Burke Beverage, Inc., 4900 Vernon Ave, McCook, IL 60525

Registration: Please contact Sandra Castaneda, Phone: (708) 496 - 1515 ext.131

Email: scastane@MACNEAL.COM