4-17-2017; Holy Smokes--Firefighter Loses IL WC Claim!!!; Springfield IL WC Update; Meet KCB&A At RIMS in Philly and more

Synopsis: Holy Smokes--Firefighter Loses IL WC Claim!!

Editor’s comment: In an astounding development to all IL WC observers, a majority of the members of our very, very, very liberal IL Appellate Court, Workers’ Comp Division joins with the IWCC and lower court to deny a claim by an IL firefighter. in Johnston v. Illinois Workers' Compensation Commission, the Illinois Appellate Court, WC Division, in a 4-1 decision, agreed a firefighter described as "a heart attack waiting to happen" should not receive workers' compensation benefits for a heart attack sustained simply cleaning his firehouse parking spot of snow.

The Appellate Court's opinion affirmed decisions by the former Arbitrator O’Malley, the Workers' Compensation Commission and Judge David Akemann from the Circuit Court of Kane County. All agreed Claimant Johnston, age 46, had so many risk factors for a heart attack his cardiac event could have occurred "anytime and anywhere," as the Arbitrator described it.  Those risk factors were enough to overcome Illinois' statutory presumption that all heart attacks suffered by firefighters at any time are a compensable injury.

Important Note for WC Risk Managers and Claims Handlers

The facts and expert opinions in this ruling are a solid outline of how to best defend any IL WC heart attack/stroke/death claim whether it involves a firefighter or any worker.

If you need solid defense legal assistance/advice on successfully winning workers’ comp heart attack/stroke/death claims, please send a reply.

Claimant Johnston worked for the East Dundee Fire Protection District for 15 years when he went into work on a 15-degree day in February 2014. A heavy smoker who often brought high cholesterol/salt fast food into work, the 6'1", 265-pound Johnston was in the process of attempting to get healthier. A month before, he had switched to e-cigarettes after 20 continuous years of smoking a pack a day.

It snowed in East Dundee the night before, so after talking with a coworker in the firehouse, Johnston went to clean the area around his car. A coworker found him lying in the snow about 10 minutes later. Within minutes, a team of coworkers performed chest compressions and strapped Johnston to a backboard, using a defibrillator to revive him. They drove him to the hospital in an ambulance. The next day, he underwent emergency quadruple bypass surgery and survived the event.

Two weeks later, Johnston applied for IL workers' compensation benefits. The East Dundee Fire Protection District denied his application, and the matter was heard at an arbitration hearing five months later. At the hearing, four of Johnston's coworkers testified, making note Officer Johnston smoked "quite a bit" and was "not the healthiest eater." Two physicians submitted testimony as well: one who treated Johnston, and the other who examined him at his employer's request.

Johnston's treating physician, cardiologist Dr. Christopher Berry, testified he had counseled Johnston on how to live a healthier life and told him he had coronary artery disease. Dr. Berry testified Claimant Johnston's 15 years as a firefighter could be "considered a risk factor" for coronary artery disease. Johnston had additional risk factors: obesity, a family history of coronary artery disease and a history of smoking. There was evidence Johnston was "mildly diabetic" due to his habitus as well, Johnston noted.

Clearing snow could trigger cardiac arrest in a person with arteries as blocked as Johnston's, Dr. Berry testified, but at that point, it would be just as likely that a heart attack would occur at rest or doing just about anything.

Dr. Dan Fintel, the defense cardiologist who examined Johnston at his employer's request, said simply walking into the cold outdoors could have triggered the firefighter's heart attack. "Any activity on a day in which the ambient temperature was 15 degrees in a cardiac patient can be life threatening or life ending," Fintel testified. Asked whether working as a firefighter was a risk factor for coronary artery disease, Fintel said it could be. Since he did not have access to evidence indicating how often Johnston was exposed to smoke, Fintel could not say for sure.

As we indicate above, former Arbitrator O’Malley considered all evidence and denied the claim. Johnston "was a heart attack waiting to happen, and his employment activities neither aggravated nor accelerated his already severe and highly advanced coronary artery disease," the Arbitrator wrote.

The Workers' Compensation Commission panel affirmed and adopted the Arbitrator's opinion. Circuit Court Judge Dave Akemann who was in IWCC hearing officer earlier in his career, confirmed the decision/denial.

On appeal, Claimant Johnston attempted to persuade the Appellate Court the IWCC's finding was contrary to the "manifest weight of the evidence." Please note IL law has a presumption cardiac issues for a firefighter with five years of service are compensable. I don’t agree with the basis for the “firefighter’s presumption” but the law is the law. My problem with the firefighter’s presumption is the urban legend or myth that all firefighters are surrounded by and breathe clouds of smoke at work every day of every year—in my opinion, very few firefighters actually breathe smoke during regular work that usually involves more medical calls than live firefighting. In this claim, I would assume the Petitioner attorney would have introduced evidence of exposure to smoke during live fires if they had such evidence—the dearth of testimony/evidence of exposure of Claimant Johnston to smoke from a live fire jumps out at anyone reviewing the ruling. What rhymes with “breathing equipment” that protects firefighters from the smoke at the occasional live fire?

Therefore, the IL WC Appellate Court first had to consider whether the East Dundee Fire Protection District presented enough evidence to prove Johnston's coronary artery disease was not linked to work, thus rebutting the presumption in Illinois law that IL firefighters' heart conditions are compensable. After considering the simple facts and Dr. Berry and Dr. Fintel's expert testimony, the Court decided the District presented enough evidence to rebut the presumption.

I salute the four members of the IL WC Appellate Court for writing an excellent and well-reasoned ruling that makes enormous common and legal sense to me.

Justice William E. Holdridge, who we thought of as being from Republican roots in Peoria, dissented in a ruling we feel is about as liberal/radical as any IL WC justice could write. Justice Holdridge thought Dr. Fintel's opinion was insufficient to rebut the presumption.

"Even assuming … that the claimant's coronary artery condition was initially triggered solely by personal risk factors such as smoking and obesity (which is not clear from the evidence), Dr. Fintel lacked sufficient information to conclude that the claimant's condition was not aggravated or accelerated by his occupational exposure to smoke and fumes," Holdridge wrote in his sole dissenting opinion.

We agree with other court-watchers who have been quoted to say, if you follow Justice Holdridge’s logic, it would be virtually impossible to ever overcome the firefighter’s presumption. In my view, Justice Holdridge will never deny a claim by a firefighter, regardless of whether all of the other nine hearing officers, including the Arbitrator, IWCC panel, Circuit Court judge and the other four IL WC justices disagree.

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

Synopsis: Springfield Dysfunction Continues in IL Workers’ Compensation.

Editor’s comment: The Illinois Senate Workers’ Comp proposals as part of the so-called 14-Step “Grand Bargain” championed by hard-working Senate President Cullerton and gritty Republican Senator Christine Radogno appear to have died or gone away for the time being. If that gets dredged up again, we will advise.

IL House Democrats passed three proposed bills out of the IL House Labor & Commerce Committee in late March 2017 that may cause more issues to our nutty Illinois workers' compensation system. All three bills are premised on the belief Illinois' workers' compensation problems are due to the “profit-rich” workers’ comp insurance industry.

Rep. Laura Fine (D-Glenview), sponsor of HB 2622, claims a non-profit, taxpayer-capitalized, mutual insurance company will bring more “competition” to the over 300 carriers already providing Illinois WC coverage in this State. Please note most of our sister states have dropped their state-run insurance funds/carriers. This legislative measure is pending in the IL House on second reading. We consider its chancing of being enacted and doing anyone any good to be less than 1%.

The second legislative measure is HB 2525 sponsored by Rep. Jay Hoffman (D-Swansea). This is the same legislation IL House Democrats passed during the previous General Assembly's lame duck session in January. We join with the IL State Chamber to confirm these changes as a phony workers' compensation proposal. The legislation codifies anti-business and anti-local-government case law for

·         Definitions of "in the course of employment" and "arising out of the employment"

·         Maintaining the "any" cause causation standard

·         Evidentiary factors for obtaining and codifying so-called “traveling employee” coverage

·         Requires prior approval for all workers' compensation rates by DOI

·         More unneeded reporting to IWCC and DOI for self-insurers

·         Creates the silly and unneeded WC Premium Rates Task Force

·         Adds a new electronic billing penalty

·         Adds new penalties for delay of authorization of medical care

·         Returns the shoulder to again magically become part of the arm and the hip to miraculously again be part of the leg (in IL work comp)

·         Allows AMA guideline submission for impairment rating for PPD benefits.

This legislation is designed to appear like it is a “reform” when it isn’t. It also in second reading.

Rep. Hoffman also has legislation eliminating the Freedom of Information Act protections enjoyed by self-insured employers both private and public. HB 2703 deletes language that exempts from copying and inspection: (i) any and all proprietary information and records related to the operation of an intergovernmental risk management association or self-insurance pool or jointly self-administered health and accident cooperative or pool; and (ii) insurance or self-insurance (including any intergovernmental risk management association or self-insurance pool) claims, loss or risk management information, records, data, advice or communications.

We will continue to watch for you and report if we see any major legislative changes. We again feel administrative change is the most optimal way to reform our IL WC system.

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

Synopsis: We Hope to See You At RIMS in Philly!!!

Editor’s comment: The team at KCB&A will be there and not be square—if you want to hook up with the top legal defense team for the states of Illinois, Indiana, Iowa, Michigan and Wisconsin send a reply.

I will be there this Saturday and going to meetings and more meetings. If you are going to be there, let’s meet for a sarsaparilla!

4-10-2017; Hacking May Change Workers’ Comp Record/Bill Keeping But Not in a Good Way; Whistleblower Complaints have to Relate To Problems Complained Of by Shawn Biery, J.D. and more

Synopsis: Hacking May Change Workers’ Comp Record/Bill Keeping But Not in a Good Way.

Editors’ comment:  If your financial stuff has ever been hacked, consider a challenging new statistic, by 2024, everyone in the U.S. may have had health care and workers’ comp data compromised if online theft keeps accelerating at the current pace. As ouir health records are going digital in the past several years, they've become far more vulnerable to poaching—and far more interesting to online thieves, who may sell a complete medical record for more than $1,000 on the darknet. That is because the records contain not just your insurance info—which can be used for fraudulent billing and prescriptions—but also they include your Social Security, driver's license and credit card numbers. As a result, the health care and work comp industry is scrambling to play catch-up to secure patient and hospital data.

Always remember workers comp benefits are about 45% health care costs in the U.S. and other countries. Health care has lagged far behind banking, financial services and retail when it comes to implementing security protocols. Until Obamacare mandated electronic records, many medical providers still operated with ancient concepts like paper, faxes and handwritten charts. Once electronic systems were finally implemented, the industry struggled to attract and retajn top IT talent to protect us. The access issues are industry-specific. "Security in health care has some unique challenges because we have to share data in order to save lives while also protecting patient information," says Steven Smith, chief information officer at Evanston-based NorthShore University HealthSystems. "If you think of a bank, your financial information is locked up and not shared. But we need to share our data with all doctors, nurses and outside payers, as well as with the patients themselves."

IT security experts say it's tough to overstate the enormity and frequency of the threats, which have skyrocketed in the past decade as everything has become exponentially more networked.

So far in 2017, 79 security breaches, each affecting at least 500 patients, have been reported to the U.S. Health & Human Services Department. That's more than five incidents a week. Only one, involving Walgreens Boots Alliance and 4,500 records, took place in Illinois. Still, our State has experienced nearly 100 incidents since 2010, according to the HHS breach portal, known as the "Wall of Shame" to security professionals.

Major hospital systems here are beginning to pay the price as HHS levies fines on providers who have lost sensitive patient data. In January, Chicago's Presence Health agreed to pay $475,000 to HHS for failing to report in a timely manner a 2013 breach involving missing paper schedules containing patient information. Presence is "working diligently" on a corrective plan, including additional security training for staff, a spokesman says.

That figure pales in comparison to the $5.5 million shelled out by Advocate Health Care in August. The Downers Grove-based hospital network agreed to pay HHS the largest settlement ever by a single entity for potential violations of federal patient privacy law related to three separate 2013 breaches that compromised the data of at leaset 4 million people. Two of the incidents involved stolen employee laptops, while a third involved a consultant's potentially unauthorized access to patient records. Since then, Advocate has "enhanced (its) data encryption measures," says a spokeswoman, adding that there's been no indication the information was misused.

Nationwide, IT breaches cost the medical and workers comp industry more than $6 billion annually—a number that grows each year.

Hospitals and physicians' practices make enticing targets. For starters, the protections are lax. "Based on our testing, health care applications performed more poorly on just about every (security) measure than applications in any other industry," says Tim Jarrett, a senior director of product marketing at Veracode, a Boston software security firm. Then there's the industry's personnel problem. "The U.S. has a huge shortage of highly qualified cybersecurity people across all industries," says Rod Piechowski, a senior director at the Healthcare Information & Management Systems Society, or HIMSS, a Chicago-based nonprofit with more than 50,000 members. "Being late to the game, health care just can't compete."

Although they're in high demand, IT professionals in health care and workers’ comp historically have not had a major say in their employers' procurement process, unlike in other industries, according to Jarrett. Until recently, security wasn't prioritized the way it was in finance or banking, and, as a result, network administrators couldn't effectively lobby manufacturers to increase software security standards, so they often ended up overseeing systems that are tough to keep safe. Plus, it's not just computer and billing systems that are vulnerable. Medical devices from insulin pumps to pacemakers store information wirelessly. Several years ago, former Vice President Dick Cheney revealed that, while he was in office, his doctors had disabled his heart implant's wireless connection because of a fear of assassination attempts. More recently, Johnson & Johnson warned customers about a security problem with one of its insulin pumps.

Some medical devices aren't made to allow any remote management, which prevents IT people from detecting problems and installing updates efficiently. Once tech teams are saddled with subpar systems, they're really stuck—because medical equipment tends to have a much longer life cycle than consumer electronics. Jarrett says he knows of one Midwestern drug company where computers that prepare prescription for patients use Windows XP, a 16-year-old operating system that stopped being supported in 2014. "That's horrifying," he says.

'SHADOW IT' SYSTEMS

Compounding the issue, some physicians, frustrated by clunky systems and compelled to find quick workarounds in the name of patient care, have created ad hoc "shadow IT" systems that rely on insecure methods like texts or unencrypted personal email, according to Coady.

As health care systems struggle to secure their data, increasingly sophisticated thieves have more reasons to steal it. Because the records include so much information, thieves can falsify insurance claims and collect checks, get tens or hundreds of thousands of dollars of free care on someone else's insurance (which might affect the real policyholder's coverage limits), and falsify driver's licenses to illegally get prescriptions. "The fraud that can be executed against payers is incredible," Coady says. Medical hackers have also been known to attempt extortion. In late 2014, Clay County Hospital, an 18-bed facility in downstate Flora, received an anonymous message saying that more than 12,000 patient files would be released unless it paid thousands of dollars. Administrators instead contacted the FBI—but other hospitals, including Hollywood Presbyterian Medical Center in Los Angeles, have paid thousands of dollars in similar situations.

Most Chicago hospital systems are reluctant to discuss their security efforts beyond confirming that they've invested lots of time and money. But they acknowledge the pressing issue. "The Cook County Health & Hospitals System has invested considerable financial and human resources into ensuring the highest level of security possible," Donna Hart, the system's chief information officer, says in a statement. "The security of our systems is one of our highest priorities."

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

Synopsis: Whistleblower Claims Have to Relate to Issues Complained Of.  Analysis by Shawn Biery, J.D., M.S.CC.

Editor’s comment:  Interesting decision for anyone who has been subjected to defending claims made under the Whistleblower Act. In Corah v. The Bruss Co., No. 1-16-1030, decided before the Appellate Court of Illinois, First Judicial District, Third Division March 2017, the court found no whistleblower protection for employee Corah due to lack of any evidence that his refusal to complete accident reporting.

Joseph Corah was the supervisor of bone-in-steak production at The Bruss Co., an affiliate of Tyson Foods. In September 2010, an employee under his supervision named Yvette Albea began having issues with lightheadedness and sweating, which caused her glasses to fog up. At Corah's recommendation, Albea was taken off the production line however after Albea threatened a union grievance, she was placed back on the line and after her return, cut her finger on a band saw. Corah completed an accident report (internally identified as an AIR) in which he placed the root cause of the accident on the superintendents for negligently placing Albea back on the line. After a dispute with the two superintendents and the plant's human resources manager over what to put in the report, Corah was terminated for insubordination.

The court again held that the language of section 20 is unambiguous and thata‘plaintiffmustactuallyrefusetoparticipate’  inanactivitythatwouldviolatealawor regulation.” citing Lucasv.  CountyofCook,  2013ILApp(1st)  113052(quoting Sardigav. Northern Trust Co., 409 Ill. App. 3d 56, 62 (2011) which indicated Plaintiff bears the burden of establishing his claim under the Whistleblower Act.

The appellate court found that because the worker was not being asked to do anything illegal, his actions were not protected under whistleblower laws.

Key to the decision was evidence that Corah's managers said they were willing to include typewritten notes from Corah "voicing (his) concerns about Albea being permitted to remain qualified on the band saw" in the report. They said they terminated Corah after he refused to fill out the AIR completely. The court also accurately determined that the AIR was an internal document not submitted to any outside agency so Corah failed to demonstrate that modifying the AIR would have violated any state or federal law, rule or regulation.

The court specifically noted "Defendant did not ask Plaintiff to falsify the AIR but merely to include the technical cause of Albea's accident,"  and “In addition, defendant's safety manager established the AIR was an internal document that would not have been submitted to any government agency."

Other facts determined in the matter also confirmed Bruss Co. submits a separate workers' compensation form to the state and only circulates the AIR internally, managers testified. The workers' compensation administrator for Tyson, a self-insured company, indicated access to AIRs when processing claims but confirmed they are not submitted anywhere.

It is probably also relevant that Bruss/Tyson approved Albea's application for workers' compensation benefits as a result of the accident.

This case is a strong example of an employer’s ability to control their internal documentation process and procedures. It also supports our general longstanding advice to KCBA clients when we consistently recommend investigation matching the urgency of claims and detailing all issues, including facts which may impact other potential claims—in this case, the initial WC investigation noting the threat of union grievance provided evidence to defend the whistleblower claim.

It is also important to note that Bruss/Tyson did not violate any state or federal laws in this matter—and it is significantly easier to defend a well-managed and innocent client!  This article was researched and written by Shawn R. Biery, JD. You can contact Shawn at sbiery@keefe-law.com for questions regarding any of your employer defense claims.

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

4-3-2017; Will The U.S. Ever Allow Dying with Dignity? Iowa Gov Signs New WC Reforms; Staffing Risk Management Ruling of Note and more

Synopsis: Will Our Country Ever Be Smart Enough to Allow Dying with Dignity?

Editor’s comment: I am on vacation in Jamaica and met a wonderful couple from Guelph, Ontario. They gave me the inside scoop on a new socio-legal development in Canada—Dying with Dignity. In short, if you or a loved one are suffering from a terminal condition, it is okay to follow the safeguards with your physician to plan for and execute an exit strategy.

How Does This Concept Impact Workers’ Comp?

One sad part of Dying with Dignity is there is a facet of it that relates to saving money for insurance carriers and employers who cover most of many folks’ health care coverage. There are people who suffer fatal injuries or become exposed to terminal diseases at work. These workers don’t all pass immediately and may linger for a time after suffering through an accident or disease. A small aspect of the concept is to avoid the high cost of unnecessary and expensive medical care that will only prolong pain.

For the last year available, these are the key findings of the 2015 U.S. Census of Fatal Occupational Injuries:

·         Annual total of 4,836 fatal workplace injuries in 2015 was the highest since 5,214 fatal injuries in 2008.

·         The overall rate of fatal work injury for workers in 2015, at 3.38 per 100,000 full-time equivalent (FTE) workers, was lower than the 2014 rate of 3.43.

·         Hispanic or Latino workers incurred 903 fatal injuries in 2015—the most since 937 fatalities in 2007.

·         Workers age 65 years and older incurred 650 fatal injuries, the second-largest number for the group since the national census began in 1992, but decreased from the 2014 figure of 684.

Get The Facts On Physician Assisted Dying

Physician assisted dying is a safe, compassionate choice for individuals facing the prospect of a horrific death. But don’t take my word for it. Get the facts on end-of-life choice and decide for yourself.  The Canadian model in allowing assisted dying respects a patient's right to choose. Their Supreme Court struck down the laws forbidding physician assisted dying because the laws unfairly restricted individual choice. Access to aid in dying will give Canadians further control over their care and, ultimately, their lives.

People want choice. More than eight in 10 Canadians support physician assisted dying. Commissioned by DWD Canada, a 2014 Ipsos Reid poll opinion poll showed that 84 per cent of Canadians believe seriously injured or gravely ill patients should have the right to end their lives with the help of a doctor.

Making assisted dying illegal doesn’t stop it. Each year, a handful of gravely ill Canadians travel to Switzerland for a medically assisted death. The cost — $20,000 to $30,000 when you account for flights and accommodation — puts this option out of reach for most people. At home, laws banning assisted dying and voluntary euthanasia have led Canadians with catastrophic diagnoses to end their own lives, sometimes violently and often prematurely. These tragedies devastate families and scar first responders. It’s time to stop this unnecessary trauma.

The safeguards work. They can provide choice for competent Canadians and protect the most vulnerable members of their society. International research has repeatedly concluded legalized assisted dying doesn’t threaten vulnerable groups such as children, the very elderly, the poor, people with disabilities and the mentally ill. This conclusion was upheld by the Supreme Courts of British Columbia and was a key factor in the Supreme Court of Canada’s decision to decriminalize physician assisted dying.

Palliative care is not enough. Palliative care is critical, but alone it is not enough. In Oregon, nine in 10 people who used that state's Dying with Dignity legislation were enrolled in a hospice program. That’s because there is some suffering only death can end. Assisted dying doesn’t hurt palliative care. Jurisdictions where end-of-life choice is legal are often global leaders in end-of-life care. Oregon, Washington and Vermont were the first American states to legalize assisted dying. They also lead the U.S. in terms of access to palliative care.

Access to assisted dying can actually lead to improved end-of-life care. A recent study in the medical journal Health Care shows investment in palliative care in the Netherlands took off after the Dutch government passed a historic assisted dying bill in 2002. Both Belgium and Quebec tied legalization of PAD to increased funding for palliative care.

Physician assisted dying is good for end-of-life healthcare. In places where assisted dying is legal, doctors are more likely to discuss end-of-life care with patients and their families.

Legal choice in dying also forces doctors to learn more about a broad range of end-of-life options. After Oregon passed a Dying with Dignity bill in 1997, the state embarked on a campaign to teach physicians how to care for patients at end of life. Five years later, a team of experts interviewed social workers and hospice caregivers to gauge how doctors were doing. “Most respondents rated Oregon physicians as showing improvements in knowledge and willingness to refer and care for hospice patients,” the authors reported.

Offering physician assisted dying is all about compassion. Forcing others to endure unwanted, intolerable suffering is inhumane and wrong. As a compassionate society, we must offer information and choices to those who face the prospect of a horrific death.

At present, the states of Oregon, Washington, Vermont, Montana and California now allow Dying with Dignity. I hope we are going to start talking about it in Illinois and the other states in which we defend claims. To me, it makes a great deal of sense when all the safeguards are in place.

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

Synopsis: Iowa Republican Governor Terry Branstad signs Pro-Business workers’ compensation legislation.  Analysis by Daniel J. Boddicker, J.D.

Editor’s Comment: GOP lawmakers in Iowa pushed legislation to reduce the cost of workers’ compensation for employers and Governor Terry Branstad agreed by signing the bill last Thursday, just one day after it was sent to him.

Senators in the Iowa passed Iowa House file 518 by a 29 – 21 vote after it was stripped of two provisions: a cap on benefits at age 67 and changing the burden of proof for injuries. Governor Terry Branstad wasted no time in signing the bill on Thursday. An important pro-business provision of the bill is a basis for disallowing compensation if a positive test for drugs or alcohol is shown by an employer. In such case, a presumption will exist that the employee was intoxicated at the time of the injury and that intoxication was a substantial factor in causing the injury. The burden of proof will then be on the employee to overcome the presumption.

We are aware of recent reports that since February 6, when word of workers’ compensation reform legislation began to spread, the Iowa Division of Workers’ Compensation has received a large amount of new petitions for benefits. The glut of new petitions is a clear sign claimants attorneys rushed to have the cases heard under statutes applicable before the new pro-business changes.

Other changes in the new legislation include the disallowance of whole-person impairment ratings related to shoulder injuries; employees are no longer compensated for permanent partial disabilities if they are receiving benefits for permanent total disabilities; traveling employees can be offered light duty at geographically suitable workplaces as long as the employer pays for any travel, lodging and meals; compensation for permanent partial disability begins when maximum medical improvement has been reached and the impairment rating can be determined; and the Iowa Workforce Development Department would be required to retrain workers at community colleges so that they can return to work.

We recommend you review all the changes to the legislation. Iowa employers have a reason to be happy.

This article was researched and written by Daniel J. Boddicker, J.D. You can reach Dan at any time for questions about Iowa or Illinois workers’ compensation at dboddicker@keefe-law.com.

Synopsis: Required Reading for All Staffing Risk Managers—Your Workers May Not Be Able to Sue Your Accounts When WC Covers the Claim. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In Terrance Falge v. Lindoo Installations, Inc., 2017 IL App (2d) 160242 (issued March 24, 2017), the Illinois Second District Appellate Court ruled an employee of a temporary staffing agency could not sue the borrowing employer for negligence after his finger was partially amputated in a workplace accident while performing work for the borrowing employer.

In August 2012, Terrance Falge was an employee of a temporary staffing agency, Labor Ready, when he was assigned to work for Lindoo Installations Inc.

Falge and five Lindoo employees were assigned to assemble storage shelving units at a Benjamin Moore & Co. warehouse. While handling a bundle of shelving units, a Lindoo employee drove a forklift loaded with bundles over to Falge, who the cut the bands holding a bundle together with a pair of shearers. The bundle shifted as Falge was cutting through one of the bands and trapped his index finger against the forklift resulting in a partial amputation of his right index finger.

Falge filed a workers' compensation claim against Labor Ready, and a personal injury claim against Lindoo, alleging his injuries were caused by Lindoo’s negligence.

Lindoo moved for summary judgment arguing that is was Falge’s borrowing employee, and therefore immune under the exclusive remedy provision of the Workers’ Compensation Act. A trial court judge granted Lindoo's motion.

Falge appealed, saying there was a genuine issue of material fact as to whether Lindoo was a borrowing employer under the Act because there did not appear to be any direct supervision or direction from Lindoo. The Appellate Court affirmed the circuit court’s decision.

Section 5(a) of the Illinois Workers’ Compensation Act, the exclusive remedy provision, prohibits an employee from suing his or her employer for negligence. The provision extends immunity to loaning and borrowing employers.

Under the IL WC Act, a worker in the general employ of one company may be loaned to another company to perform work thereby becoming the employee of the borrower while he or she is performing the work.

Here, the court said there was no question that Labor Ready qualified as a loaning employer. Instead, the question was whether Lindoo qualified as a borrowing employer.

The court explained a borrowing employer relationship exists if the borrowing employer has a right to direct and control the manner of work performed by the borrowing employee, and if there was a contract of hire between the employee and borrowing employer.

The court found Lindoo had the right to control Falge's work because Falge was taking direction from Lindoo employees, and the contract between Lindoo and Labor Ready expressly said Lindoo had the power to direct Falge's activities, including set Falge's work schedule. The court also found Falge impliedly consented to a borrowing employer relationship with Lindoo, because he knew he was working for Lindoo through Labor Ready when he accepted the assignment.

The Falge case is a reminder for our readers of the protections against dual avenues of recovery in workers’ compensation cases. A copy of the decision can be found here .

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia 24/7/365 for questions about workers’ compensation at lpicazo@keefe-law.com