10-3-2019; Gene Keefe and Matt Ignoffo on Dealing With Marijuana/THC in Your Workplace--Part 1; IL Appellate Ct Rules IL Employers Don't Have to Pay Unaccrued PPD and more

Synopsis: Gene Keefe and Matt Ignoffo on Dealing With Marijuana/THC in the Workplace for Illinois and Other States. Part 1; Part 2 Next week.

Editor’s comment: Gene and Matt have developed a great presentation for your managers or the OccHealth Department of any hospital. If you are interested in a presentation and/or webinar, send a reply.

Here are the salient points on Marijuana in the Workplace.

First

1. Understand the laws on Marijuana/THC and prescription medications that are specific to your State;​

1. Adopt a pre-duty prescription medication and impairing substances safety policy;​

1. Update job descriptions;​

1. Let employees know your stance on Marijuana/THC and prescription meds and their use at work​

Remember, Current Testing for Marijuana Is NOT Precise

1. Current testing for marijuana use will only confirm the presence of Marijuana/THC in the user’s system for as long as 30 days.

1. Unlike alcohol or COH, you can’t confirm blood THC levels, like you can confirm blood alcohol levels.

1. This makes it more challenging to measure, demonstrate and rein in “impairment” or what a factor varying Marijuana/THC levels might cause.

1. For that reason and others, we feel it better just to draw the line—no marijuana/THC use at your work sites.

1. Enforcement and safety are the challenges.

Testing for Impairment is Possible but Certain to be Legally Challenging

• Police in California and other states have developed DRE’s or Drug Recognition Expert evaluations to try to keep stoned drivers off their roads.

• The same “math” may soon apply in your workforce.

• You might want to consider having one or several managers undertake the DRE process.

• For more information, take a look at this link: https://reason.org/commentary/how-do-police-officers-determine-marijuana-impairment-in-drivers/

Matt and I suggest you Adopt A Pre-duty Prescription Medication & Impairing Substance Safety Policy

• Requires employees working in safety-sensitive classification to disclose that they have taken an impairing effect prescription or other substance;

• Define safety-sensitive and list job classifications as possible;

• Make it part of the your overall safety policy;

• Once disclosed, you, as the employer reserve the right to send employee for fitness-for-duty evaluation with copy of your new safety-focused job description;

• Encourages employees to first provide their own physician a copy of their job description and make a fitness-for-duty determination; and

• You as the employer reserve your right to make final fitness-for-duty determination, maybe using a Medical Review Office (MRO).

We also recommend you update your job descriptions

• Every job description has to be in compliance with the Americans with Disability Act (ADA) and should list “Essential Job Functions.”

• If the employee works in a safety-sensitive job category, one of the essential functions listed should be “the ability to work in a constant state of alertness and in a safe manner.”

• Educate yourself on the workplace related impairing effects of Marijuana/THC

• Marijuana/THC causes an inability to concentrate or remain focused on a single thought or idea.

• It also causes increased drowsiness, fatigue and lethargy.

• Your workers will have an inability to accurately gauge lengths of time and distance as well as impairment of hearing and vision and short term memory.

• Your impaired workers may have an inability to cope with sudden changes in surrounding and/or emergency situations.

• It is possible for them to have visual and/or auditory hallucinations.

• Finally, you might expect a non-caring, uncommitted, unconcerned attitude.

How To Best Deal with Marijuana/THC in your Workplace—Don’t!!!!

• We have clients across the U.S. asking about the optimal approach to marijuana/THC in their work sites

• We recommend an easy approach to this issue—start now and forever ban marijuana/THC in your workplace whenever possible

• All states we are aware of allow you to legally stop its use in your work sites

• If you don’t act before you get a marijuana user asking about it and you block that user and then start to ban its use, you are almost certainly looking at a discrimination action

More to follow next week.

Synopsis: Iannoni Reversed by IL Appellate Court—Employers Do Not Have to Pay Unaccrued PPD in Lump Sums.

Editor’s comment: I read a mildly shocking IL WC ruling on a national website about a Cook County Circuit Court judge who ordered the City of Chicago to pay unaccrued permanency in a lump sum, even though the money wasn’t yet “due.”

Acting as if no one could ever disagree with this new and unprecedented ruling, the Circuit Court judge also awarded something like $34K in penalties against the City for not paying in a lump sum along with just under $3,500 in interest. Holy cats!!!

The Court’s order said:

A permanent disability is immutable. It will not go away. The worker who suffers from a permanent disability is therefore entitled to a lump sum benefit in exchange for the loss of the complete use of their person. This is in sharp contrast to a temporary disability. It makes sense that temporary disability benefits would accrue on an installment basis during the pendency of the disability—the purpose of temporary disability benefits is to compensate the worker during their period of incapacity.

In my respectful view, the Circuit Court judge was simply wrong and the ruling cannot comply with the legislation he was analyzing. You will note there is a specific section of the IL WC Act that allows parties on either side to go in to our Commission within a certain time and seek more or less permanency—in short, the legislature understood “permanent disability is not immutable.”

I am happy to report the Circuit Court’s ruling was just unanimously overturned by our Appellate Court. 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.

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

‌ ‌ ‌ ‌ ‌

9-25-2019; 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.

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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

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