4-1-2019; The Winds of Change--New Team at the IWCC Under Gov JB Pritzker; What Will Employers Do When Marijuana Becomes “Legal” in Illinois and Other States and more

Synopsis: As JB Pritzker settles in at the Governor’s Mansion in Illinois, the Winds of Change are picking up at the Workers’ Compensation Commission.

Editor’s Comment: The 2011 changes to the Workers’ Compensation Act, followed by the tenure of former Republican Governor Bruce Rauner, moved the IL WC Commission from a highly Petitioner-oriented venue to one where most practitioners felt it had become, for the most part, a fair ruling body. This is a matter of perspective, of course.

We are able to happily report the IL WC system is in the middle of the pack in terms of both costs of WC and benefits being paid to injured workers when you take a look at the State of Oregon WC ranking of insurance premiums. We hope our system stays in the middle and doesn’t dramatically rise, as it did under the administrations of prior years. Looking at the personnel changes that have occurred, we don’t feel that it will.

Under the Rauner administration, some Petitioner attorneys felt the IL WC Commission moved beyond center, at times even turning Respondent-oriented in their posture of adjudication in recent years. Regardless of one’s perception of the last few years, most veteran observers predict the pendulum is now going to swing back; how far remains to be seen.

Keep in mind that a number of current IL WC Arbitrators are on “ice” if you will, awaiting their fate as to re-appointment. As an Illinois-based law firm dedicated to defending workers’ compensation claims in this State, we only hope that the remaining (and new) hearing officers maintain the level of even-handed adjudication that we have experienced in recent years.

Thus far, a memorandum from the Illinois Workers’ Compensation Commission directed:

• Commissioner Michael Brennan has been appointed as Chairman of the Workers’ Compensation Commission.

• Arbitrators Flores and McCarthy are appointed Commissioners

• Their dockets will be replaced by TBA1 and TBA2 respectively

• Arbitrator Watts will replace the Chicago TBA

New Commissioners & Panels:

Panel A                                                 Panel B                                                 Panel C

Employee Representatives:         Commissioner Tyrrell                      Commissioner McCarthy               Commissioner Parker

Public Representative:                   Commissioner Portela                    Commissioner Mathis                     Commissioner Flores

Employer Representatives:          Commissioner Lamborn                 Commissioner Coppoletti             Commissioner Simpson

Newly appointed Chairman Michael Brennan replaces Joann Fratianni-Atsaves. We consider Mr. Brennan to be highly qualified for the position, as he was in private practice as a workers’ compensation defense attorney for a number of years before serving as a Commissioner for the last few years. He is well-versed in Illinois Workers’ Compensation Law. Both sides of the bar find him to be a solid choice to lead the IWCC. We extend our thanks to former Chairperson Fratianni-Atsaves for her hard work in service of our State.

New Commissioners Douglas McCarthy and Barbara Flores served as arbitrators prior to their Commission appointments; they are familiar to practitioners and veterans of the industry.

New Commissioner Maria Portela served as in-house counsel at AIG prior to her appointment.

New Commissioner Marc Parker managed his own Plaintiff/Petitioner practice in Madison Country before his appointment.

If compelled to wager, we predict further replacements of current sitting arbitrators, to be directed by the new Governor. This is unfortunate, as the vast majority of current arbitrators have done a solid job in recent years. To the victor goes the spoils though, especially in Illinois, and the Governor has discretion to make appointments as he sees fit. We will report on further re-appointments or new appointments as they occur.

This article was researched and written by John P. Campbell Jr., J.D., Partner at Keefe, Campbell, Biery & Associates, LLC. John can be reached at jcampbell@keefe-law.com. We appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: What Will Employers Do When Marijuana Becomes “Legal” in Illinois and Other States?

Editor’s comment: We note Dr. David Fletcher of SafeWorks Illinois was quoted in an article on this topic over the weekend and I wanted to add my thoughts. In my opinion, employers are best served to create/maintain drug and alcohol-free workplaces. But one issue with doing so is testing for marijuana levels. There are no current tests that allow an employer to determine the current THC or marijuana levels in one’s system—the testing only indicates the presence of the drug and not its particular level of “intoxication” for a user. Watch this space if that should change.

The reality of legalization in Illinois and other states, if it happens, will be challenging. Some employers might start ignoring employee use, as long as workers can still do their jobs. Other employers will still ban its use, taking action against employees who test positive for pot, bolstered by federal law under which marijuana remains illegal.

Please note risk and exposures for injuries are, in my personal view, much higher in companies that either actively or passively allow marijuana use in their work sites. If an employee is injured while stoned at work, I feel it will be harder to defend a claim saying pot-smoking was the cause. In the realm of third party liability, I think it will be easier for Plaintiff lawyers to seek high damages or punitive damages if a worker injures a third party while under the influence of marijuana.

Illinois’ new governor, J.B. Pritzker strongly supports the legalization of marijuana, and Illinois lawmakers in our “one-party” State plan to consider legislation this year. If the IL legislature and our Governor want marijuana legal, there is no way to stop that, other than public opinion. If marijuana is legalized, Illinois would join 10 other states, and the District of Columbia. We note medical marijuana is already legal in Illinois.

All of it means employers will face a new set of questions.

• Should you ban possession of marijuana in the workplace?

• Should you/can you fire employees who test positive for marijuana?

• Should they continue testing current and prospective workers at all?

If rules surrounding medical marijuana are any indication, Illinois workers won’t necessarily be free to use marijuana, even in their free time, if recreational marijuana becomes legal here. Illinois law bars employers from discriminating against workers for using legal products outside the workplace. But employers still have the right to have drug-free workplace policies, require drug testing and to take job action to suspend or terminate  employees who violate those policies.

Please note any company or organization that contracts with the federal government would also still likely have to bar marijuana use among employees. And U.S. transportation workers in safety-sensitive positions would also

still likely be subject to drug and alcohol testing, per federal requirements.

Some employers have already made that change following the legalization of medicinal marijuana in Illinois, the widespread use of CBD oil and potential legalization of recreational marijuana, said Dr. David Fletcher, CEO and founder of SafeWorks Illinois in Champaign, which does drug testing for employers. “We’ve actually had some employers say they don’t want to test for it,” Fletcher said. “That’s kind of the new trend.”

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

Synopsis: Update on IL SB 1596.

Editor’s comment: I received an excellent article indicating the changes proposed in IL SB 1596 may not be effective until year 2044 due to a constitutional issue of longstanding nature.

If you are concerned about the business-busting aspects of this new proposed but misguided legislation and want to review that article, I am happy to send it. Please simply send a reply.

3-25-2019; IL Chamber President Sends Veto Letter for IL SB 1956--Please Support Him!!; More Hidden IL WC Proposed Legislation and more

Synopsis: The Illinois State Chamber Sends Veto Letter to Gov. Pritzker to Try to Block IL SB 1956. I Urge All Illinois Businesses and Local Gov’ts to Join and Support His Efforts.

Editor’s comment: I salute the President of the IL Chamber Todd Maisch for his effort to save the structure of the IL WC system and avoid having lots of IL employers become uninsured for this new giant exposure and otherwise give them additional motivation to leave this State. For local gov’ts, I assure you this legislation isn’t going to apply to just the private sector—these lawyers will come at IL counties, cities and park districts also. Therefore, the cost of gov’t employee benefits and concomitant local taxes to pay them will continue to rise dramatically.  I consider IL Chamber Maisch’s veto letter to be a “Must-Read” for IL risk and safety managers, so I am publishing it unedited below. I ask all my readers to consider joining the IL Chamber of Commerce, as they remain the lead organization that is a sentinel for IL business and jobs. For info, go to www.ilchamber.org

If you are busy, in short, you will note State Chamber President Maisch points out (with my comments):

• There was no negotiation between Management and Labor in reaching this sweeping proposed change to the IL WC Act/System. In Gene’s view, ITLA is trying to jam this down everyone’s throats.

• The speed, low cost and strict liability of the IL WC system works well for both sides. My comment, why mess-up something that isn’t broken?

• The concepts of limitations/repose for WC/OD claims as currently written is fair and provides certainty. Again, my comment is--if you want to change them, bring it to the table.

• The current IL WC and OccDisease Acts allow an employee to bring claims against third parties. Gene’s comment--that isn’t changing at all, workers don’t have to bankrupt employers to have a source of relief.

• As I have advised, President Maisch affirms these new, expensive business-busting risks may be uninsured due to how IL WC/OD/EL coverage is written. My comment—Call Your Broker to insure you are covered when this becomes law!!!

Here is the letter:

Subject: Veto Request of SB 1596

Dear Gov. Pritzker:

One of the key, business issues you spoke about during the campaign last year was the need for workers’ compensation reform and indicated that any changes should be part of a process were business and labor negotiated such changes.

We urge you to veto SB 1596, as business interests were provided no opportunity to negotiate the provisions of SB 1596 and its provisions will have a profound impact on the workers’ compensation system as we outline below. We also urge you, following a veto, to bring the workers’ compensation stakeholders together to negotiate a more reasonable approach to addressing the Folta v. Ferro Engineering Illinois Supreme Court decision. A more reasonable approach would be to confine the issue to the WC/OD Acts.

The fundamental tenet of the WC/OD Acts are to establish an equitable system of compensating employees with certain benefits and swift remedy by forgoing their common-law rights and in exchange, the employers are subject to a strict liability system with known parameters.  As such, Illinois employers enjoy the protections of exclusive remedy meaning a workplace injury or disease must be adjudicated under the WC/OD Acts. As part of the WC/OD Acts’ creation of certainty for employers, limitation periods to bring action against the employer have been established as part of the law. These time periods, 25 years for filing a claim and the three years statute of limitations under the Occupational Diseases Act, are finite periods and act as a complete bar to such action.

In 2015, the Illinois Supreme Court, in Folta v. Ferro Engineering, agreed with the employer community that the Acts bar an employee’s cause of action against an employer to recover damages for a disease resulting from asbestos exposure which arose out of and in the course of employment even though no compensation is available under those Acts due to the applicable statute of repose. In its 5-2 Folta decision, the Court noted: “The Acts do not prevent an employee from seeking a remedy against other third parties for an injury or disease. Rather, in this case, the acts restrict the class of potential defendants from whom Folta could seek a remedy, limiting Folta’s recourse for wrongful death claims to third parties other than the employer. In this case, Folta named 14 defendant manufacturers of asbestos-related products. Folta was not left without any remedy.”

Why we oppose SB 1596:

Exclusive remedy protection for Illinois employers is eviscerated creating significant, new exposures to liability, including punitive damages, that far exceed the benefits provided by the WC or OD Acts …Instead of the protections provided by the WC/OD Acts, employers will now face civil actions with unlimited awards, including punitive damages, from cases where the action has been previously barred. SB 1596 provides that the restriction in prosecution of a claim against an employer under both the WC and OD Acts “do not apply to any injury or death sustained by an employee as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision.”

Employer risk costs will increase due to the uncertainty…employers may be responsible for claims previously closed. Employers may be uninsured as business liability policies exclude workers’ compensation claims and workers’ compensation policies exclude civil claims against the employer. Lack of insurance coverage could jeopardize the financial viability of the employer and result in little to no award actually being received by the employee. By expanding the repose limit, an employee could continue to enjoy the strict liability placed on an employer and be relatively certain that benefits will be paid.

Settlements may be adversely impacted…the legislation provides that there is a “nonwaivable right to bring such an action against any employer or employers.” It is unclear as to how this change will impact future settlements under the WC/OD Acts.

We appreciate your consideration and are available should you or your staff have any questions.

Sincerely, Todd Maisch

President, CEO Illinois State Chamber of Commerce

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

Synopsis: More Democrat “Stealth” IL WC Legislation—If You Are Proud of Your Power, Why Hide Stuff?

Editor’s comment: This new proposed legislation was sent to me by a reader. The concern we both have is the change to the IL WC Act isn’t dramatic but I assure my readers of my feeling we are returning to the days of Blago and former IWCC Chair Dennis Ruth when WC changes aren’t being negotiated and are going to be secretly jammed down everyone’s throat. I call that “stealth” legislation.

Please take a look at IL HB 2301.

Synopsis As Introduced at http://ilga.gov/legislation/fulltext.asp?DocName=&SessionId=108&GA=101&DocTypeId=HB&DocNum=2301&GAID=15&LegID=118173&SpecSess=&Session=

This new law amends the Civil Administrative Code of Illinois, the Workers' Compensation Act, and the Workers' Occupational Diseases Act. It replaces "employee class" and related terms with "representative of a labor organization recognized under the National Labor Relations Act". There is no need for this law—it could be put into place by our Governor without the need for legislation. What they are trying to change is to make this a permanent requirement that may be hard to change at any future time if balance ever returns to what is currently a “one-party” State.

I expect more stealth legislation like this—if you hear or see any, please send along so I can report it. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Peoria Police Officer Isn’t Awarded Lifetime Healthcare for Family For a Simulated Training “Emergency.”

Editor’s comment: This is a mildly complex gov’t only claim that isn’t truly WC so if you are busy, go on to other things.

In short, Claimant Beckman was participating in a simulated riot situation, as part of her training for the Peoria P.D. She fell down on ice and snow during training and was injured and is receiving a lifetime line-of-duty disability pension. With respect to this fallen safety officer, I disagree with the idea that when on-the-job injuries preclude someone from being a police officer but they can do other work, that taxpayers have to pay them for life. I cannot tell from this ruling whether Claimant Beckman could do other police or gov’t work and it is possible she is totally disabled from all work.

The ruling is a battle over lifetime family healthcare coverage on top of the already adjudicated pension. To get the additional taxpayer-funded lifetime benefit, she has to establish she was injured during police actions “reasonably” felt to be in response to an emergency. Her problem is that training is a simulated but not real emergency. She was asserting she had to “treat” training as an emergency for the training to be valid.

The Appellate Court ruled she doesn’t get lifetime healthcare benefits for a “training emergency” that isn’t actually an emergency. She has to be in the field, responding to an actual emergency to get this government largesse.

If you want the link to the ruling, send a reply. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: NEXT WEEK--Join KCB&A with the IL State Chamber for the IL WC Workshop on April 2, 2019 in Naperville. The link to register is: http://events.constantcontact.com/register/event?llr=omjkt4dab&oeidk=a07eg2i2618bf7c6629

3-19-2019; Insurance Alert--Don't Have Your IL Operations Uninsured--Call Your Broker!!!; Mike Goldberg and Jimmy DeMunno Rest in Peace and more

Synopsis: INSURANCE ALERT—YOUR ILLINOIS OPERATIONS ARE ABOUT TO BE BARE/UNCOVERED FOR MAJOR RISK—READ THIS ARTICLE, CALL YOUR INSURANCE BROKER RIGHT NOW! Analysis by Bradley J. Smith, J.D. and Eugene F. Keefe, J.D.

Editor's Comment: We reported to our readers a few weeks ago the Illinois Legislature was considering IL Senate Bill 1596. Fast forward 14 days and here it is: that didn’t take long, did it! Both Houses in our ITLA-controlled legislature passed SB 1596. Now the bill only awaits Governor Pritzker’s rubber stamp of approval by signing it with no apparent foresight to its effects on Illinois’ already struggling economy. Jobs and business are departing and the pace is probably going to pick up. Our worry is you are certain to have a coverage gap due to the language of this bill—if/when it becomes law.

The only way to circumvent this tragedy is to telephone your insurance broker to get some type of possible future coverage for these types of claims. Hopefully, where there’s a market; there’s future affordable coverage on the horizon. The only other way to fix this will be to attack it on a particular factual circumstances lending itself to constitutional challenges. But remember, the People’s Republic of Illinois is a one-party state with no true method to rein in our lawmakers other than public opinion.

Is this what we should expect from the IL Legislature going forward?

Again, this is not a test. SB 1596 is here and will be signed into law. This unprecedented and unneeded legislation amends the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act to allow employees to directly sue their employers in uncapped civil proceedings for a “latent injury.” In effect, this shocking IL WC Act amendment subjects Illinois employers to unlimited liability in tort for their employees’ “latent injury” claims. It may also happen in a fashion that may render Illinois employers uninsured for potentially thousands of expensive and unpredictable claims. In Gene’s view, this legislation is being quietly driven by ITLA or the Illinois Trial Lawyers Ass’n who may make zillions in new fees while destroying jobs and the Illinois marketplace.

Yes, You Heard Us Right—There Will Be No Insurance for Billions of Dollars in Old and New Unprecedented IL Workplace Exposures

As veteran defense lawyers, we want our readers to know this legislation will unwittingly strip Illinois employers of any insurance coverage for these types of massive claims due to common CGL policy and workers’ compensation policy exclusions. And the only thing lying in the way of this bill is the newly minted Governor: in our view, it’s here and he’ll sign it soon with no care for the consequences.

Why does this matter to all of our readers in the insurance, claims, engineering, construction, manufacturing and other related industries? Well… this started in a claim denied by the IL Supreme Court in a case named Folta v. Ferro Engineering. ITLA is trying to reverse that outcome, now what they dominate our State legislature. When the Gov signs it, this legislation will effectively bankrupt your business quickly or over time. In our view, it makes absolutely no sense to push this legislative agenda in Illinois, unless the goal is removing all construction, engineering, manufacturing and other businesses from the State—we hope that cannot be the goal of Illinois Democrats. Foresight is like hindsight, but proper foresight in such matters in pushing individual legislative agendas against IL employers. That’s because ultimately there needs to be money to defend, manage and pay these types of claims. That money either comes in baskets from IL employers or from their insurance carriers. If the employer or their carriers go broke in paying likely expensive “latent injuries,” then there will be no money left for Claimants.

The Amendment Ignores and Strips Away the Logic of the Exclusive Remedy Provision of the Illinois Work Comp Act and the Workers OccDisease Act.

As currently written, these WC/OD Acts impose liability without fault upon employers and, in return, prohibit expensive and explosive common law suits by employees against their employers. The exclusive remedy provision was part of both Acts’ “grand bargain” of the sacrifices and gains of employees and employers. In effect, employers assumed no fault liability to their employees, while being relieved of the prospect of large and unpredictable damage verdicts.

Perhaps the Illinois legislature and the newly minted Governor believe that where there’s a will, there’s a way. In other words, they may believe insurance companies will adjust and provide endorsements for these types of claims. However, those types of endorsements will be enormously cost prohibitive—if insurance companies will even offer them. The reason is that such claims likely will result in severe injuries and deaths, especially in asbestos exposure (and ultimately the development of mesothelioma) or other similar types of “latent injuries.” Either way, call your broker and seek answers.

Additionally, these types of claims can be difficult to defend given the timing of them—they present symptoms and damages decades after exposures. And then there’s difficulty of locating the particular culprit that might have caused the disease or deleterious condition. Years and years of experts have developed theories, such as the “single exposure” theory. The theory means one single exposure to a “latent injury” pathogen or other mechanism can proximately cause the disease.

Make no mistake, these types of legislative exposures are an affront to keeping Illinois manufacturing, construction, health care and other types of major businesses in Illinois. 

What’s a latent injury? ‘Latent’ is defined in Merriam-Webster’s as present and capable of emerging or developing but not now visible, obvious, active or symptomatic. Okay! It should be easy to determine what employers now face if this bill passes, right? Wrong! Some of the potential types of exposures and other injuries that are latent would be:

• Chemical Sensitivity;

• Asbestos

• Radiation;

• Pesticides;

• Solvents;

• Electromagnetic Fields Antidepressant Drugs Ephedra and PPA;

• Blood Products (HIV/Hepatitis) Diethylstilbestrom;

• Toxic Playgrounds;

• Muscoskelital (lower back pain);

• Allergies;

• Skin Cancer;

• Obesity;

• Gun Liability;

• GM Foods;

• Long term hearing loss from work noise-industrial deafness;

• Silicone exposure;

• Lead paint exposure;

• Acoustic shock; or

• Repetitive trauma claims.

There are many other possibilities, but these are some of the major areas we would expect to be contemplated by the legislative acolytes at the Illinois Trial Lawyers Association.

SB 1596 amends the IL Workers’ Compensation Act and the Workers’ Occupational Diseases Act. It outlines that recovery do not apply to injuries or death resulting from an occupational disease as to which the recovery of compensation benefits under the Act would be precluded due to the operation of any period of repose or repose provision. It also provides that, as to any such injury or occupational disease, the employee, the employee's heirs, and any person having the standing under law to bring a civil action at law has the nonwaivable right to bring such an action in Circuit Court against any employer or employers. 

If the latent injury discussion remained in the workers’ compensation arena, then perhaps this would not be as big of a deal. This is where this type of claim against employers should properly be. Nonetheless, that is not what this new legislation mandates. Instead, it’s another attempt by the Illinois Trial Lawyers Association to circumvent the IL Workers’ Compensation Act to keep having Plaintiff lawyers get richer and richer. Ultimately, this will not protect individuals, because the money will dry up quickly. And if there’s no way to pay claims, then there’s no money for injured persons that truly need it.

This type of legislation not only would force Illinois businesses out but would eventually kill those businesses by whatever prior connection they had to Illinois from decades past. This will likely lead to business dissolutions and/or bankruptcies.

Perhaps an alternative the legislature could debate would be extending the twenty-five-year repose period under the Acts. Because not being insured is not good for employees either. And when this legislation signed by the Governor, then say bye to insurance for latent injuries to employees. Instead, employers will come to find they have no coverage for a latent injury suit by an employee, which could potentially rise to the level of a wrongful death claim—meaning multi-million-dollar judgments. Ultimately, these bills do not even aid in injured workers viable recoveries, which completely defeats their purpose.

We’ll continue to apprise you of the progress of the implementation of this detrimental new law. Once this is signed, it will become effective immediately per the designation in the passed bill, unless an amendment occurs. This means the law as drafted may not even allow for time for an adjustment.

One thing you should immediately do is to contact your insurance brokers to seek out newly implemented insurance declarations to deal with these types of newly evolving claims. Currently, there is no insurance applicable to these types of claims and our readers could be sitting with potentially bankrupting latent injuries just waiting to arrive at your doorstep. The problem is a portion of these latent injuries will be left uninsured and that cannot be remedied by new insurance declarations. This is a problem that everyone will have to deal with.

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

Synopsis: Michael B. Goldberg and Jim DeMunno Rest in Peace.

Editor’s comment: The world of Illinois Work Comp mourns the passing of two leading lights of this industry.

On behalf of the defense team at Keefe, Campbell, Biery & Associates, we regretfully advise of the passing of long-time WCLA member, Michael B. Goldberg.  Michael passed peacefully in his sleep after a very long battle with pancreatic cancer.  Michael was surrounded by his family at his home in Florida.  Our sincere condolences go out to the Goldberg family.  Michael B. Goldberg was a senior partner and founder of the law firm now known as Goldberg Weisman Cairo (GWC). Founded in 1977, GWC has grown into one of the largest personal Injury and worker’s compensation law firms in Illinois.

We also have to advise James “Jimmy” Francis DeMunno, 83, of Cary, passed away peacefully on St. Paddy’s Day, March 17, 2019. James was a proud veteran of United States Army, where he served during the Korean War. He graduated and earned his JD from DePaul University, College of Law. James was an attorney for 40 years and served as a State Appellate Court judge for 8 of those years. Most of all, he loved being with his family and attending his kids and grandkids sporting events.

In lieu of flowers, donations may be made to JourneyCare Foundation, 2050 Claire Ct., Glenview, IL 60025.