9-25-2019; Shocking Record-High "Negligent Hiring" Verdict of $54M is Affirmed; New IL WC Commissioner Kathryn Doerries Appointed and More

Synopsis: Shocking IL Appellate Ruling That Might Set the Trucking Risk and HR Industry on Its Ear When Your Rigs Cross Anywhere Near the Nutty Land O’ Lincoln!! This $54M verdict is an IL Auto Claim Record.

Editor’s comment: In Denton v. Universal Am-Can, Ltd., (Issued September 24, 2019), a Cook County jury has awarded more than $54 million to a man who sustained head, neck and knee injuries after a semitrailer rear-ended his vehicle on an Indiana interstate.

Plaintiffs James Denton and his wife, Theresa, of Oak Lawn, sued David L. Johnson, the truck driver, and Universal Am-Can Ltd., Universal Truckload Services Inc. and Louis Broadwell LLC, Johnson’s employers, in 2015, alleging Johnson was negligent when he failed to slow down to avoid a crash as traffic unexpectedly changed. As you will read, the verdict didn’t really come from a bad-driving claim—it morphed into a “negligent hiring” action that lead to boxcar numbers.

The verdict is comprised of $19,155,900 in compensatory damages and $35 million in punitive damages--it totaled $54,155,900. According to John L. Kirkton of the Jury Verdict Reporter, the total verdict is higher than any Illinois auto personal-injury verdict that has previously been reported,

Driver Johnson “failed to keep a proper lookout” and was driving at 40 miles an hour when he rear-ended Plaintiff Denton in his Jeep. Plaintiff very effectively argued Johnson should not have been hired or retained by Universal Am-Can because of his “checkered driving record” and a felony conviction in 2004 arising out of a road-rage incident. From my view, every single driving boo-boo by this driver was repeated to the jury, as if his employer encouraged all of it.

Plaintiff Denton was driving south on Interstate 65 near Rensselaer, Ind., on Feb. 8, 2011, when traffic abruptly slowed because of a wrong-way driver traveling north in the interstate’s southbound lanes. George Kallis, 88 (who passed away during the pending proceedings) was driving the wrong way on the highway shoulder at approximately 30 mph. He did not strike any vehicles or sustain any physical injuries.

Counsel for Plaintiff indicated other trucks on the highway were able to slow their rigs and bring them to a stop — except for Johnson. “(Johnson) didn’t become aware of the wrong-way driver until after the crash,” Plaintiff Attorney Napleton said.

The defense argued, through the use of crash reconstruction expert, that the sole cause of the crash was Kallis, the wrong-way driver. Counsel for Plaintiff disagreed.

The defense also argued Johnson encountered a “hard brake” situation where he had no room on either side of the highway to move to another lane. Plaintiff Denton sustained injuries to his knees, back and neck and had nine surgeries. He continues to claim chronic pain syndrome related to his neck and back injuries and has to take narcotics to control his pain. Denton was not able to return to work as a regional vice president for Mohawk Industries.

In January 2015, a three-justice panel of the 1st District Appellate Court ruled Denton was hurt in the final stage of a chain-reaction that started with Kallis’ wrong-way driving. That opinion, Denton v. Universal Am–Can Ltd., 2015 IL App (1st) 132905, also indicated the Dentons settled with Kallis’ estate for $100,000 prior to filing their Cook County suit.

Writing for the appeals panel, Justice Terrence J. Lavin (who was a former and very successful Plaintiff lawyer) noted the differences in allocating fault between Illinois and Indiana and how they could affect an eventual award. “In Illinois, all defendants found liable are jointly and severally liable for the plaintiff’s past and future medical expenses,” Lavin wrote. “Indiana, by contrast, maintains that defendants can only be held severally liable for their own percentage of fault. … Moreover, Indiana law allows a defendant to prove the negligence of an absent or settling tortfeasor.”

The appeals panel explained the defense could attempt to persuade the jury that Kallis, though a nonparty to this case, was responsible for setting the crash in motion. Ultimately the jury in this case did not apportion any fault to Kallis. Jurors apportioned 40 percent of fault to Johnson individually and as an agent of Louis Broadwell and Universal, and 60 percent of fault to Universal for negligent hiring and/or retention.

The problem for the Trucking Industry is the jury found that all Defendants were negligent and the trucking company was negligent in hiring and retaining its employee who was the driver of a semi who had been convicted of 9 traffic-related offenses in the 7 years prior to applying, and whose license was suspended at time of accident.

The Appellate Court found the trial court correctly barred testimony as to the reduced rates providers accepted for Plaintiff's medical treatment under the collateral source rule, and properly applied Illinois law to that issue and to issue of allocation of punitive damages award. The Court also confirmed there was sufficient evidence supporting the punitive damages award, as extensive evidence was presented as to driver's poor driving history prior to applying to trucking company, and company's internal safety policies.

The Appellate Court noted the jury's finding of zero percent fault on the part of the driver who was driving the wrong way reflected the jury's belief that Plaintiff was injured as a result of the negligent and willful and wanton conduct of Defendants.

My concern for the entire U.S. trucking industry is there aren’t enough solid drivers with CDL’s out there. You need bodies to drive semis (until autonomous trucks arrive).  I am concerned some of the U.S. trucking HR people are taking on challenging hires, like the driver in this claim. When and if you make that mistake and someone gets hurt, even if you aren’t the true “cause” of the wreck, a bad driving record for the trucker involved may cause your exposures to get way into your excess layers. In short, you need to carefully consider hiring troublemakers and folks with poor driving records for lots of reasons, this verdict being one of them.

            -----------------------------------------

Synopsis: The Secret Squirrels who run the IL WC Commission Replace Former Commissioner Lamborn with Kathryn Doerries. We wish both all the best in their new ventures.

Editor’s comment: One odd thing about IL WC Commission management—the HR secrecy level for openings is close to that of nuclear armament handling. No one ever lets the media or public know of an opening and no one knows who/how to apply for a position.

We just learned Kevin Lamborn who did a solid job as a management Commissioner in his years at the IWCC, has been quietly sacked by whoever sacks such folks.

The new appointee is a mild surprise to me. Having practiced at the IWCC since the Iron Age or thereabouts, I have never met nor heard of Ms. Doerries that I recall. The IWCC notice that she was appointed said virtually nothing about her or her qualifications. The national work comp media didn’t report it at all. It is my understanding she is married to a solid defense attorney who I do know and have great respect for. To learn anything—something about Ms. Doerries, I looked her up on the web and found this on www.linkedin.com which I did edit a little bit. It is odd in 2019 to read she served a chief of the “Industrial Commission Bureau” when the joint has been called the Workers’ Compensation Commission for a very long time. Either way, here are some details about our new appointee.

Kathryn Doerries Attorney

• Wheaton, Illinois

About 

1. Served as Bureau Chief of Industrial Commission Bureau (??) to lead attorneys specializing in Workers’ Compensation defense before the Illinois Workers’ Compensation Commission (IWCC).

2. First chair of numerous trials before the IWCC.

3. Cross-examined witnesses and deposed medical experts in complex cases.

4. Successfully resolved thousands of cases through negotiation and settlement or trial.

5. Restructured entire department to create efficiencies and ensure consistency.

6. Managed staff including hiring, mentoring and supervising.

7. Drafted Proposed Findings for arbitrators’ decisions, many adopted in toto.

8. Drafted and argued appeals before the IWCC.

EDUCATION & QUALIFICATIONS
J.D., The John Marshall Law School, Chicago, IL
B.A., University of Illinois at Champaign-Urbana, IL
Active Member, Illinois Bar

As I indicate above, I join with the defense team at KCB&A and the IL WC community to welcome our newest Commissioner.

Illinois Chamber of Commerce Conference 10/8/19 

Register Today!

 Agenda will include:

7:30 a.m.–8:30 a.m. Registration and Breakfast Networking – Expo is open    

8:30 a.m.–8:55 a.m. Opening Remarks

Jay Shattuck, Executive Director Employment Law Council, Illinois Chamber of Commerce

Michael Brennan, Chairman, Illinois Workers’ Compensation Commission 

8:55 a.m.–9:45 a.m. General Session – Medical and Recreational Marijuana in Illinois and the effect on WC Claims Handling   

Shuaib Ahmed, ASA Law Group  Shuaib Ahmed will dissect the Medical Cannabis Act, discuss both medical and recreational marijuana in Illinois and the challenges facing Employers navigating Workers’ Compensation claims.   

9:45 a.m.–10:10 a.m. Morning Break & Visit Exhibitors  

10:10 a.m. – 11:05 a.m. First Series of Workshops  

Workshop #1: Shawn Biery, John Campbell and Bradley Smith, Keefe Campbell Biery & Associates

Impact and Implications of SB 1596 (Civil Action may be brought against Employer)   Join John Campbell and Shawn R. Biery from Keefe, Campbell, Biery & Associates for a break out session discussing the impact and implications of SB 1596, as well as brainstorming strategies on how employers can best prepare to protect themselves. These veteran workers compensation defense attorneys will also cover relevant recent case law updates to provide guidance which will be helpful for anyone who deals directly or peripherally with workers’ compensation claims. Questions will be entertained throughout to drive the discussion toward specific avenues of interest from the audience.  

Workshop #2: Michael Teti, Digistream Investigations in the Age of Geosocial Data 

The current growth of geosocial data is changing the face of risk management and investigations. Learn what geosocial data is, and exactly how this type of information is used to uncover fraud and investigate insurance claims of all kinds. Understand how to gain eye-opening insight into accidents, site-security, workplace harassment, and high exposure incidents by locating social media photographs, videos and posts at specific locations and times anywhere in the world. The session examines successful real life cases, fascinating trends in social media, privacy and legal issues, as well as preserving, authenticating and presenting cyber evidence in court. Attendees will work with an understanding of best practices and ethical requirements for a successful geosocial investigation and how to add this new information into their already wide range of skills. 

 Workshop #3: Surbhi Saraswat Goyal and Charles Maring, Brady Connolly Masuda, P.C. Defending Work Injuries . . . Before They Happen!  

 In this workshop learn practical, low-cost strategies that employers can implement in-house to prepare for a work injury before it happens! Attorneys Surbhi Saraswat Goyal and Charles M. Maring, II reveal battle-tested strategies and helpful trial evidence that is beneficial in the defense of workers’ compensation claims. These strategies can help Employers, Human Resource and Safety Personnel meditate costs and protect the company’s interests. Know your rights as an employer and turn standard practices into assets!

11:10 a.m. – 12:05 p.m. Second Series of Workshops  

Workshop #1: Brian Clay, MD, Illinois Bone & Joint Institute Standardizing a Return to Work Protocol for Back Injuries in the Workplace   

Attendees will understand the markers of when a patient can return to work duty with low back pain, what to avoid, standard practices, and improvements in the process. By following a researched set protocol, return to work for low back injuries will be more efficient and economical. Attendees will also understand the insurance implications, cost saving, and improved return to work times for these patients by following a researched protocol.

 Workshop #2: Steve Murdock and Jynnifer Cotharn, Inman & Fitzgibbons, Ltd. Best Tools for Defense; Strategic Use of IMEs, Record Reviews, Utilization Reviews, Impairment Ratings 

Effective claims management often requires different strategies at different points in the litigation process. Understanding the tools that are available to help protect the insured’s interests is a critical part of claim handling. Should I get an IME? What are the benefits of obtaining a Utilization Review? How much weight is given to an impairment rating? In this seminar, we will address these questions along with four defense tools, their benefits and risks, and how each tool impacts cost and advancement of claims to closure. 

Workshop #3: Jeffrey Risch, Smith Amundsen, LLC  OSHA Obligations and Workers Compensation in Illinois 

In this presentation, led by Labor & Employment Attorney Jeffrey Risch, attendees will receive the latest in employer OSHA obligations related to work related injuries and claims. From reporting and recording requirements, to drug testing rights and disciplinary options when an employee is involved with a work related injury due to an unsafe act or rule violation, attendees will hear the very latest on what employers must do, can do, shouldn’t do and can’t do when it comes to OSHA and work related injuries.

12:05 p.m. – 12:30 p.m. Visit Exhibitors & Networking Break

12:30 p.m.–1:30 p.m. Luncheon with Keynote Speaker 

The Intersection of Rx Opioids & Medical Marijuana Mark Pew, Senior Vice President, Product Development & Marketing, Preferred Medical  Medical cannabis as a substitute for prescription opioids continues to grow in the public (and private) discourse on pain management. Is that a surprise? For citizens of Illinois it should not be since last year’s introduction of the “Opioid Alternative Pilot Program”. But Illinois is not alone in the connection as per the January 24, 2019 blog post “Marijuana & Opioids” that listed three other states with an explicit connection (Colorado will officially make it five total in August 2019) and another six states with an implicit connection. While this connection is mostly political and anecdotal (based on personal stories and experiences) there is a growing amount of science (clinical studies) to substantiate the premise. This session will discuss the evolution in thought, present the anecdote and evidence behind the connection, highlight the implications for workplaces, and talk about how a drug-for-drug substitution might not be the full answer.

1:30 p.m.–2:30 p.m. Roundtable Discussion with Q&A 

Moderator: Jay Shattuck, Exec Dir Employment Law Council, Illinois Chamber of Commerce • Panelist: Amy Bilton, Nyhan Bambrick Kinzie & Lowry

Panelist: Dr. David Fletcher, Safeworks Illinois 

Panelist: Mike Brennan – Chairman, Illinois Workers Comp Commission 

Implementation of SB904 and discussion of billing and payment problems in the WC system

 2:30 p.m.– 3:00 p.m. Drawings for Prizes & Closing Remarks 



 3:00 pm  Adjourn

Contact Information

Questions on this event or other IL Chamber Business Services events?



Contact the Business Services Coordinator,

Kirsten Constant

P: 217-522-5512 Ext. 227

E: kconstant@ilchamber.org

‌ ‌ ‌ ‌ ‌

9-17-2019; Will Dynamex Spread to IL and Other States?; An Interesting “Arising Out Of” WC Ruling From France; Oct. 8 IL State Chamber WC Confab and more

Synopsis: Will “Dynamex” Come to Illinois and Other States Soon? I consider this required reading for HR, Risk and WC claims handlers.

Editor’s comment: I truly feel my readers need to know of this “Left Coast” mess because we have no way to stop the concept in Illinois if the super-majorities in our State Senate and House want to bring it here. Our wildly liberal Governor is almost certain to sign off on it. I doubt our surrounding States will have any interest in it but you never know.

Please also note the Dynamex concept has been codified in legislation that has passed both California legislative houses and is simply awaiting the Governor’s signature (or inaction which will make it law). If/when that happens, it is certain to apply to companies from any State when they operate in and possibly around California. The legislation has tried to address federal issues that may block implementation.

For workers’ comp purposes, what might now be “independent contractors” in Illinois would magically turn into employees if/when they suffer work-related injuries or exposures leading to occ diseases. While this might grow workers’ comp claims and exposure, it would also make any State that adopts this new concept wildly less competitive than States that do not adhere to the Dynamex concept. Please note lots of other employee benefits, like unemployment comp, group medical care, discrimination/harassment protections and the like may be extended to the newly designated “employees.”

Last year, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected an earlier test for determining whether workers should be classified as either employees or independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”) in favor of a worker-friendly standard that may upend the existing independent contractor or what is called the “gig” labor market.

In particular, the Court embraced a standard presuming all workers are to be treated as employees instead of as independent contractors, and placed the burden on any entity classifying an individual as an independent contractor of establishing such classification is proper under their newly adopted “ABC test.”

Dynamex is a nationwide same-day courier and delivery service that offers on-demand, same-day pickup and delivery services to businesses and the public. Prior to 2004, Dynamex classified its California drivers as employees. Starting in 2004, however, Dynamex converted all of its drivers to independent contractors. If a worker didn’t want that status, they could look for other work.

In January 2005, Plaintiff Charles Lee entered into a written independent contractor agreement with Dynamex to provide delivery services for the company. Just three months after leaving his work at Dynamex, Lee filed this lawsuit on his own behalf and on behalf of similarly situated Dynamex drivers, alleging Dynamex’s alleged misclassification of its drivers as independent contractors led to Dynamex’s violation of the provisions of IWC wage order No. 9, the applicable state wage order governing the transportation industry, as well as various sections of the Labor Code, and, as a result, that Dynamex had engaged in unfair and unlawful business practices under Business and Professions Code section 17200.

In a ruling named Borello, the CA Supreme Court held that the “right to control” the means and manner in which work is performed by a worker is the most important of several factors to be considered when evaluating a classification analysis, including secondary factors such as ownership of equipment, opportunity for profit and loss, and the belief of the parties. This test was more flexible because it balances the different factors to arrive at a classification based on individual circumstances of each case. Prior to Dynamex, many cases (including the Court’s own recent decisions) referred to the multi-factor Borello test as the traditional “common law” classification analysis.

The CA Supreme Court’s Decision

As a threshold matter, the Court framed its decision by broadly characterizing the misclassification of independent contractors as “harmful and unfair” to workers, honest competitors, and the public as a whole. The Court provided a long, detailed, and nuanced analysis of the relevant case lineage. In doing so, the Court read each of these cases and their respective holdings in a very worker-friendly fashion.

In particular, the Court interpreted the Borello test as going beyond the traditional common law classification analysis, and that it instead “calls for the application of a statutory purpose standard … to determine which classification … best effectuates the underlying legislative intent and objective of the statutory scheme at issue.” That is, the Court clarified it reads Borello to stand for the proposition the remedial purpose of any employment legislation (such as the workers’ compensation laws at issue in Borello) must always be taken into account in the classification analysis.

The Dynamex “ABC Test”

Under the ABC test, a worker will be deemed to have been “suffered or permitted to work,” and thus, an employee for wage order purposes, unless the putative employer proves:

• the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

• the worker performs work outside the usual course of the hiring entity’s business; and

• the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

Note that each of these requirements need to be met in order for the presumption a worker is an employee to be rebutted, and for a court to recognize that a worker has been properly classified as an independent contractor.

What This Means For U.S. Businesses If It Expands to Other States

The question of whether an individual worker should be classified as an employee or independent contractor has considerable significance for workers, businesses, and the public generally. If a worker is classified as an employee, the employer bears the responsibility of paying Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker’s compensation insurance, and of course, complying with the endless labyrinth of state and federal statutes governing the wages, hours, and working conditions of employees.

Indeed, many businesses, particularly those operating in the “gig economy,” are fundamentally premised on the use of independent contractors. In light of this case, any businesses operating in California that treat workers as independent contractors should confer with their legal counsel to review the relationship under the “ABC test” and determine whether any or all such workers should be reclassified.

For example, prong B of the ABC test is particularly troublesome for any businesses that use independent contractors to deliver or provide their core product or service. In applying the ABC test to Dynamex, the Court noted that a class of delivery drivers could be certified under prong B because the question of whether the delivery drivers were performing outside the usual course of Dynamex’s business could clearly be resolved on a class-wide basis. Indeed, delivery services—which are provided by the delivery drivers—are the very core of Dynamex’s business.

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

Synopsis: An Interesting “Arising Out Of” WC Ruling From France.

Editor’s comment: It is all over the Web and lots of my readers have sent it for my thoughts, so you may as well know them.

News reports indicate while on a business trip, a technician for a French railway company died of a cardiac arrest after intimate relations with a woman he met. The word “after” in the news reports appears to indicate he wasn’t active when his heart failed—I guess we will never know.

Appeal court judges in Paris ruled recently because Xavier X -- his name in court records -- was away from his normal work and home and on assignment for his employer, the death counts as a workplace “accident” and his company is liable and his family is entitled to workers’ compensation. You may note his widow has to make the claim on her behalf and also for any children/dependents, despite the sad fact hubby wasn’t being true to her.

According to French court records, the company's WC defense lawyers argued the employee -- who was married but not to the lady he was with -- was not performing professional duties or following any business practice at the time of his death, saying he was instead committing an "[intimate act] that he had had with a [somewhat] complete stranger" in her hotel room.

However, the judges interpreted the “traveling employee” concept and said French workers on business trips are "entitled to their employer's protection for the duration of their mission ... whether or not the accident takes place as part of a professional activity or as an act of normal life."

The company was challenging a 2016 ruling by the state health insurance provider that categorized the death as an industrial accident. The Times of London reports in its ruling, the provider said "an … encounter is an act of normal life like taking a shower or eating a meal."

As a result of the latest ruling, the family -- partners and children -- will get a monthly benefit of up to 80% of his salary until what would have been his retirement age. After that, they will get a share of his pension.

In my humble view, actions of daily life, like combing your hair, going to the potty and intimacies such as this should not be “work-related” whether you are at your normal work or away from work. I handled a claim where a worker died on the commode—the Arbitrator would not provide workers’ comp benefits simply because this guy was on the road. I agreed with that Arbitrator then and I would agree with him/her now.

How do you feel about it? Feel free to send a respectful reply with your thoughts.

Illinois Chamber of Commerce Conference 10/8/19

Register Today!

 Agenda will include:

7:30 a.m.–8:30 a.m. Registration and Breakfast Networking – Expo is open    

8:30 a.m.–8:55 a.m. Opening Remarks

Jay Shattuck, Executive Director Employment Law Council, Illinois Chamber of Commerce

Michael Brennan, Chairman, Illinois Workers’ Compensation Commission 

8:55 a.m.–9:45 a.m. General Session – Medical and Recreational Marijuana in Illinois and the effect on WC Claims Handling   

Shuaib Ahmed, ASA Law Group  Shuaib Ahmed will dissect the Medical Cannabis Act, discuss both medical and recreational marijuana in Illinois and the challenges facing Employers navigating Workers’ Compensation claims.   

9:45 a.m.–10:10 a.m. Morning Break & Visit Exhibitors  

10:10 a.m. – 11:05 a.m. First Series of Workshops  

Workshop #1: Shawn Biery, John Campbell and Bradley Smith, Keefe Campbell Biery & Associates

Impact and Implications of SB 1596 (Civil Action may be brought against Employer)   Join John Campbell and Shawn R. Biery from Keefe, Campbell, Biery & Associates for a break out session discussing the impact and implications of SB 1596, as well as brainstorming strategies on how employers can best prepare to protect themselves. These veteran workers compensation defense attorneys will also cover relevant recent case law updates to provide guidance which will be helpful for anyone who deals directly or peripherally with workers’ compensation claims. Questions will be entertained throughout to drive the discussion toward specific avenues of interest from the audience.  

Workshop #2: Michael Teti, Digistream Investigations in the Age of Geosocial Data 

The current growth of geosocial data is changing the face of risk management and investigations. Learn what geosocial data is, and exactly how this type of information is used to uncover fraud and investigate insurance claims of all kinds. Understand how to gain eye-opening insight into accidents, site-security, workplace harassment, and high exposure incidents by locating social media photographs, videos and posts at specific locations and times anywhere in the world. The session examines successful real life cases, fascinating trends in social media, privacy and legal issues, as well as preserving, authenticating and presenting cyber evidence in court. Attendees will work with an understanding of best practices and ethical requirements for a successful geosocial investigation and how to add this new information into their already wide range of skills. 

 Workshop #3: Surbhi Saraswat Goyal and Charles Maring, Brady Connolly Masuda, P.C. Defending Work Injuries . . . Before They Happen!  

 In this workshop learn practical, low-cost strategies that employers can implement in-house to prepare for a work injury before it happens! Attorneys Surbhi Saraswat Goyal and Charles M. Maring, II reveal battle-tested strategies and helpful trial evidence that is beneficial in the defense of workers’ compensation claims. These strategies can help Employers, Human Resource and Safety Personnel meditate costs and protect the company’s interests. Know your rights as an employer and turn standard practices into assets!

11:10 a.m. – 12:05 p.m. Second Series of Workshops  

Workshop #1: Brian Clay, MD, Illinois Bone & Joint Institute Standardizing a Return to Work Protocol for Back Injuries in the Workplace   

Attendees will understand the markers of when a patient can return to work duty with low back pain, what to avoid, standard practices, and improvements in the process. By following a researched set protocol, return to work for low back injuries will be more efficient and economical. Attendees will also understand the insurance implications, cost saving, and improved return to work times for these patients by following a researched protocol.

 Workshop #2: Steve Murdock and Jynnifer Cotharn, Inman & Fitzgibbons, Ltd. Best Tools for Defense; Strategic Use of IMEs, Record Reviews, Utilization Reviews, Impairment Ratings

Effective claims management often requires different strategies at different points in the litigation process. Understanding the tools that are available to help protect the insured’s interests is a critical part of claim handling. Should I get an IME? What are the benefits of obtaining a Utilization Review? How much weight is given to an impairment rating? In this seminar, we will address these questions along with four defense tools, their benefits and risks, and how each tool impacts cost and advancement of claims to closure. 

Workshop #3: Jeffrey Risch, Smith Amundsen, LLC  OSHA Obligations and Workers Compensation in Illinois 

In this presentation, led by Labor & Employment Attorney Jeffrey Risch, attendees will receive the latest in employer OSHA obligations related to work related injuries and claims. From reporting and recording requirements, to drug testing rights and disciplinary options when an employee is involved with a work related injury due to an unsafe act or rule violation, attendees will hear the very latest on what employers must do, can do, shouldn’t do and can’t do when it comes to OSHA and work related injuries.

12:05 p.m. – 12:30 p.m. Visit Exhibitors & Networking Break

12:30 p.m.–1:30 p.m. Luncheon with Keynote Speaker 

The Intersection of Rx Opioids & Medical Marijuana Mark Pew, Senior Vice President, Product Development & Marketing, Preferred Medical  Medical cannabis as a substitute for prescription opioids continues to grow in the public (and private) discourse on pain management. Is that a surprise? For citizens of Illinois it should not be since last year’s introduction of the “Opioid Alternative Pilot Program”. But Illinois is not alone in the connection as per the January 24, 2019 blog post “Marijuana & Opioids” that listed three other states with an explicit connection (Colorado will officially make it five total in August 2019) and another six states with an implicit connection. While this connection is mostly political and anecdotal (based on personal stories and experiences) there is a growing amount of science (clinical studies) to substantiate the premise. This session will discuss the evolution in thought, present the anecdote and evidence behind the connection, highlight the implications for workplaces, and talk about how a drug-for-drug substitution might not be the full answer.

1:30 p.m.–2:30 p.m. Roundtable Discussion with Q&A 

Moderator: Jay Shattuck, Exec Dir Employment Law Council, Illinois Chamber of Commerce • Panelist: Amy Bilton, Nyhan Bambrick Kinzie & Lowry

Panelist: Dr. David Fletcher, Safeworks Illinois 

Panelist: Mike Brennan – Chairman, Illinois Workers Comp Commission 

Implementation of SB904 and discussion of billing and payment problems in the WC system

 2:30 p.m.– 3:00 p.m. Drawings for Prizes & Closing Remarks 



 3:00 pm  Adjourn

Contact Information

Questions on this event or other IL Chamber Business Services events?



Contact the Business Services Coordinator,

Kirsten Constant

P: 217-522-5512 Ext. 227

E: kconstant@ilchamber.org

‌ ‌ ‌ ‌ ‌

9-10-2019; IL Risk/HR Managers Have to Catch Up to New Salary History “Gotcha” Law; Matt Wrigley, JD on New Michigan Reorganization That Includes WC and more

Synopsis: IL Risk/HR Managers Have to Catch Up to New Salary History “Gotcha” Law.

Editor’s comment: The reason I call this a “Gotcha” law is the defenses are basically stripped away to expand reserves/exposures. The mistakes that may cost your company thousands in awards and opposing counsel’s attorneys fees which could become common. The mistakes could be innocent. You have less than three weeks to insure personnel folks in the hiring part of your company know what they have to do and NOT do.

Please note Brad Smith, J.D. is our top employment law defense attorney/partner and can provide guidance and assistance in defending these challenging claims. He can be reached 24/7 at bsmith@keefe-law.com.

In point of fact, you have just nineteen days until September 29, 2019 to revamp your IL hiring practices or face sizable liability or exposure from “Gotcha” rulings.

Governor J.B. Pritzker signed into law a bill adding a new spin to Illinois’ Equal Pay Act. The new legislation is designed to supposedly end the persistent national gender pay gap, by prohibiting Illinois employers from inquiring into job applicants’ pay history and from imposing rules that prevent workers from sharing salary information under some situations. Lawmakers wrote the law to become fully effective at the end of this month. Don’t be the first in the neighborhood to make the news with an innocent violation!

The law will take many hiring personnel at all Illinois employers by surprise precisely because it upends a longstanding assumption it is permissible for a hiring manager to screen candidates and set terms of job offers based on what they earned on prior positions. As a result, employers with hiring plans are likely to experience a flood of lawsuits unless they act quickly to retrain hiring personnel and adjust recruitment processes quickly.

In Short, Don’t Ask About Pay History or Let Pay History Be A Factor in Hiring or Employee Compensation Decisions

It will now be unlawful for an employer or temporary employment agency to:

1. Screen job applicants based on current or prior wages or salary histories, including benefits or other compensation, by requiring that a pay history of an applicant satisfy minimum or maximum criteria;

2. Request or require a wage or salary history as a condition of being considered for employment, as a condition of being interviewed, as a condition of continuing to be considered for an offer of employment, as a condition of an offer of employment or an offer of compensation;

3. Request or require that an applicant disclose wage or salary history as a condition of employment; or

4. Consider or rely on an applicant’s voluntary disclosure of current or prior wage or salary history, including benefits or other compensation, in determining whether to offer a job applicant employment, in making an offer of compensation, or in determining future wages, salary, benefits or other compensation.

With certain exceptions, it will be unlawful for an employer to seek wage or salary history, including benefits or other compensation, of a job applicant from any current or former employer.

It remains lawful, however, to discuss with applicants their expectations with respect to current or future compensation.

Don’t Require Employees to Keep Their Pay Confidential

It will also be unlawful to require an employee to sign a contract or waiver that would prohibit the employee from disclosing or discussing information about the employee’s wages, salary, benefits or other compensation.

“Gotcha”—Here are the Penalties

The law specifically makes it unlawful to discharge or otherwise discriminate against any individual who “fails to comply with any wage or salary history inquiry.”

It allows workers up to 5 years to sue employers over violations and allows them to recover compensatory damages, special damages up to $10,000.00, punitive damages and reimbursement of their reasonable attorney fees and costs.

The law empowers courts to award additional “civil penalties” of up to $5,000.00 for each violation for each employee affected.

Given these stakes, it is crucial employers act to ensure compliance as quickly as possible. Aside from making certain recommended hiring process changes, human resources folks have to train your managers as quickly as possible to break the age-old habit of asking applicants “How much do you currently make?” and factoring the response into their staffing decisions.

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Synopsis: State of Michigan reorganizes certain State agencies which deal with Labor, Talent, Economic Development, via Executive Order No. 2019-13. Research and Analysis by Matt Wrigley, J.D., KCB&A’s Michigan WC Legal Ace.

Editor’s Comment: Effective August 11, 2019, by Executive Order Michigan Governor Whitmer abolished the Department of Talent and Economic Development (TED) and replaced the same with a new Department of Labor and Economic Opportunity (LEO). The Executive Order was signed by the Governor on June 6, 2019.

In an effort to streamline and coordinate efforts to increase the number of Michigan residents with post-secondary credentials, the LEO will consist of several organizations. These include the

• Michigan Economic Development Corporation,

• Michigan Strategic Fund,

• Michigan Economic Development Corporation (MEDC) and the

• Michigan Strategic Fund (with a reorganized Board),

• Unemployment Insurance Agency ,

• Workforce Development Agency,

• Workers’ Compensation Agency and Board of Magistrates,

• Michigan Occupational Safety and Health Administration (MIOSHA),

• Wage and Hour Division,

• Employment Relations Commission,

• Michigan State Housing Development Authority (MSHDA),

• Michigan Rehabilitation Services,

• Michigan Office of New Americans,

• Asian Pacific American Affairs Commission,

• Commission on Middle Eastern American Affairs and Hispanic/Latino Commission of Michigan,

• Bureau of Services for Blind Persons as well as various entities and responsibilities for adult education, STEM advisory, and youth employment.

This Executive Order also separates the Michigan Compensation Appellate Commission, which currently handles unemployment and workers’ comp appeals, into the Workers’ Disability Compensation Appeals Commission and the Unemployment Insurance Appeals Commission.

For my readers who have followed me over the years, you may note Illinois has 88 state agencies with 88 agency heads and 88 HR managers and 88 everything’s. You can see our surrounding states are trying to streamline to cut staff and save money to avoid the skyrocketing debt and taxes Illinoisans face.

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

Synopsis: In Indiana Worker’s Comp, Be Sure to Remember to EDI Lump Sum Payment Information within 30 days When Paying Claimants for Section 15 settlements. Research and writing by Kevin Boyle, J.D.

Editor’s comment: As you may have experienced, the EDI changes installed in IN WC this year have given some insurers/employers headaches and tested their IT systems’ ability to comply with the new rules. Hopefully, you have been able to keep up with the new system.

As part of the changes, the Indiana Worker’s Compensation Board recently reminded users that insurers/employers need to EDI proof of payment on settlement agreements to show payment of any settlement was made within 30 days of the Approval.

Last year, the statute added the 30 day deadline for payments of full and final agreements (“Section 15s”). So in addition to paying settlements within 30 days of the Approval, please also remember that you must provide the payment information through EDI, too.

Some of the new software systems/vendors that have been installed to comply with the new EDI system have protocol that automatically generate those EDI payment transmission to take care of the new requirement.

But if you don’t have that, now is a good time to either upgrade your system or manually make sure it’s done. Don’t get caught short with needed documentation.

If you need any help on this, please contact me: kboyle@keefe-law.com.