10-13-2020; Three Thoughts for All IL WC Risk and Claims Managers and more

Synopsis: Here are Three Thoughts From Gene Keefe That All Illinois Risk and Claims Managers Need to Know.

Editor’s comment: I consider this stuff to be fairly important for you to consider.

First, before, during and after the Pandemic, injuries and work-related exposures that occur while working remotely from home are covered by Work Comp or the OD—OccDisease Act. 

In Illinois, if and when your workers are hurt while working from home, they are entitled to the benefits and protections of the Illinois Workers’ Comp or OD  Acts. 

Illinois law requires an employer pay for all medical care and treatment, TTD/TPD and compensation for any permanent impairment or disability suffered by the worker. In order to be entitled to those things, your worker must

1. Report the event causing injury or disease within 45 days and

2. Be able to show they were injured “in the course” of their employment and the injury “arose out of” their employment.

The term “in the course of” one’s employment, in the most general sense is injuries occurring on the employer’s premises while performing the employer’s work during regular work hours. However, the definition of workplace and work hours is unquestionably forever changing.

We are now in an era of more employees working from home than ever before and still more contemplating such a change. For those people who are working from home, and who are injured, how do we determine if they are injured “in the course of” their employment and “arising out of” their employment? For IL Employers, this creates an incident investigation challenge—you have to fully and completely document what happened at someone’s home office/workplace and whether it is truly a work accident. If you need an Incident Investigation form and protocol, sent a reply.

Many of the criteria for the commuter are exactly the same as those for the home worker. For example, did the injury occur during those hours that an employer would have reasonably anticipated your worker to be working? Can your worker show they were engaged in meaningful work for you just prior and during the time the injury occurred? Did the injury occur while performing a task for their work? 

Still further, can they establish the injury “arose of the” employment? Was it their printer that fell on a foot and fractured it or was it their toaster oven? Document, document, document.

If an injury does occur while working from home, and is connected to work, it is important to insure your people know to report the incident to someone in a supervisory position at the employer as soon as possible. To capture proof of the reporting, consider recording a conversation and/or getting signatures.

Second, Understanding “Independent Contractor”—Gene’s rule.

I get asked constantly how to define an “independent contractor” under IL Work Comp. It is basically easy and trust me, case law is mildly deceiving.

Please also understand your “worker” is not an independent contractor because they agree to it orally or sign off on it or otherwise act like they are somehow “independent.”

They are only independent for WC purposes if they have their own WC insurance and show you the policy. The policy has to cover anyone and everyone that works with and for you. I can’t stress this enough. If they have their own WC insurance and they die at work or become seriously injured/disabled, you want the claim to go through their own coverage with your coverage as a backup.

Please assume they have six young kids and dependent parents and they are going to complain to their congress-person or state rep if the worker is injured and disabled/dead. The politician is going to find them a great Claimant lawyer and the lawyer is going to appropriately come after you for coverage—you need to be ready to show the policy or “proof of insurance” to demonstrate that worker was “independent” and their issues aren’t on your dime. If you can do that, you have an independent contractor relationship. If you can’t, it is going to be hard to defend you. Feel free to contact our defense team for help, as we do defend folks who may have similar issues and need guidance.

So Gene, what about the “opt out” thing where a worker who runs the “independent contractor” company can “opt out” of WC/OD coverage?

You hear a lot of things--there is no reason, none under which I can recommend any of my/our KCB&A clients should allow an “independent contractor” to opt out of coverage. Basically, what that means is there is no coverage to protect the person from gigantic medical bills and lost time and whatever their permanency/impairment might be.

Again, the family and friends of that injured man or woman are coming after YOU! Don’t let that happened by allowing the worker to opt out—make sure they haven’t done so.

Third and last for this week—what are the risks of operating a company/employer in IL and not have a Work Comp/OD policy?

In simplest terms, the risks are both “business-busting” and “you-busting.” If you are operating a company without WC/OC coverage, you can and will be subject to a $10,000 fine along with $500 for every day you were operating without insurance.

That fine can be levied on your business whether it is a sole proprietorship, corporation, LLC or whatever form you use. It is also possible for Claimant and counsel to “pierce the corporate veil” and attack your personal assets, like your home or car.

On top of all those challenging things, you can not only face a WC claim before the IL WC Commission, it is also possible you can be sued in Circuit Court for the injuries with unlimited risk—a verdict for worker injuries or death could be in the millions or tens of millions.

And last but not least, it is a class 4 felony or a crime to operate a business without WC/OD coverage. You could lose your house, your car and go to jail.

In short, please, please don’t operate a business in this nutty State without work comp/occdisease coverage.

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

Synopsis: Annual IL State Chamber WC Conference Goes Virtual—Shawn Biery & John Campbell to present.

Editor’s comment: The 14th Annual Workers' Compensation & Safety Conference set for November 4th is being held virtual this year. The 8:30 am to noon program features John Ruser, President & CEO of the Workers' Compensation Research Institute (WCRI) and Michael Brennan, Chairman of the Illinois Workers' Compensation Commission.

The program also will include the following breakout sessions:

• Advances in the Diagnosis and Treatment of Carpal Tunnel Syndrome - Presented by Dr. Andrew Zelby and Dave Rusch, Vice President of Business Service Development, Ovation Hand Institute;

• Medical Marijuana in the Workplace - Presented by AJ Sheehan, MVP Law

• The Covid-19 Rebuttable Presumption - What is it and What Does it Mean for You? - Presented by Peter Stavropoulos, Brady Connolly and Masuda

• 2020 Workers Compensation Case Law Update - Presented by Shawn Biery and John Campbell, Keefe Campbell Biery & Associates

• Snakes, Leaches, and Tobacco Enemas - The Case for Evidence-Based Medical Treatment Guidelines - Presented by Patrick Robinson, Vice President, Government Affairs, ODG, an MCG Health Company

• OSHA Updates for 2020 and Beyond - Presented by Matthew Horn, SmithAmundsen LLC

For more information and to register:

https://ilchamber.org/workerscompconference/

9-28-2020; Has the IL Supreme Court Ended Accident Defenses in IL WC?; Kevin Boyle on Important New Indiana IWCB Rule and more

Synopsis: Has the IL Supreme Court Ended Accident Defenses in Illinois? Are We Now a “Positional Risk” State?

Editor’s comment: Please note Illinois is a one-party State. Republicans don’t have a seat at our State’s table (and may not ever be back). Like Chicago, the only election of note is the Democratic primary. In my view, decisions like this are felt to be “liberal” or pro-labor. I don’t agree with that view. I consider this an “anti-lawyer” ruling, as it is going to render claims that were previously defensible to now be compensable—please trust me, Illinois business/TPA’s and insurance carriers are certain to drop relevant accident disputes, accept claims and pay benefits quickly. When this happens, Claimants aren’t going to need or go to Petitioners’ attorneys and TPA’s/Insurance carriers won’t need defense attorneys. Only time will tell.

In McAllister v. The Illinois Workers’ Compensation Comm’n, after six years of litigation involving an simple operated knee, our highest Court changed the test used to determine whether injuries caused by common bodily movements and everyday activities at work, such as bending, twisting, reaching, or standing from a kneeling position, are compensable under the IL Workers’ Compensation Act. From my position, this is intended to overrule earlier rulings from the Supreme Court that placed a small additional burden of proof on claimants. If you have such claims pending in your active IL WC claims, send a reply if you want my view on whether you might continue to dispute/defend them. Please assume if you don’t review and reconsider handling, you are sure to get petitions for penalties and attorney’s fees so loved by the Claimant bar in this State.

I have taught several hundred law students who are now WC lawyers on both sides. In teaching them to evaluate challenging accident claims, we reviewed the 1969 ruling by the IL Supreme Court in The Board of Trustees of the University of Illinois ruling where someone injured themselves putting their coat on at work. That claim was denied as a risk common to the public. In 1991, the decision in Hansel & Gretel Day Care, claimant injured herself standing up from a stool in a preschool. Again, the act of simply standing was not found to be compensable.

In this ruling, Claimant McAllister injured his right knee working as a sous-chef and filed a claim under the IL WC Act. McAllister testified at arbitration his job duties included arranging food in the restaurant’s walk-in cooler. On the day in question, suffered pain in his knee while moving from a kneeling to a standing position while searching the cooler for a misplaced item. He admitted under oath he didn’t slip, trip, slide or suffer any trauma. There was no asserted safety failure by Respondent, his employer. Basically, he simply stood up and felt pain. That description of an event hasn’t been an “accident” in this State since the inception of workers’ comp as a system of benefits in 1909.

Please also note the IL WC system hasn’t ever used the “positional risk” theory that other states have—in a positional risk state, if the worker is “positioned” at work when they suffer pain, it may be compensable because they are at work, regardless of cause. I believe IL WC is moving or has moved to that situation. In my view, our IL Supreme Court has judicially changed the common reading/meaning of our IL WC Act which requires both “arising out of” and “in the course of” employment—they are now only going to require “in the course of” for a physical problem to be work-related. Trust me, that is a giant expansion of IL WC claims, coverage and costs. It is also going to require fewer and fewer lawyers on both sides, as TPA’s/Insurance carriers simply drop disputes and pay, pay, pay.

In McAllister, the Arbitrator found in Claimant McAllister’s favor. The IL WC Commission panel followed traditional law and reversed that decision and found the injury did not arise out of the claimant’s employment. The Circuit and Appellate Courts affirmed. However, the Appellate Court was divided regarding the extent to which injuries caused by everyday activities were compensable under the IL WC Act. The majority favored the analysis contained in Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52 (1989). This was an injury when Claimant stepped of a street curb going to his car.

Two concurring Appellate Court justices, however, preferred the analysis contained in Adcock v. Illinois Workers’ Compensation Comm’n, in which Claimant asserted he was injured simply pivoting in a swivel chair. In Adcock, the Court ruled Claimant had to establish his or her job duties required the claimant to engage in the everyday activity that caused the injury to a greater degree than the general public, even in situations where the activity was directly related to the claimant’s job duties.

The IL Supreme Court went a different direction. They agreed with the Appellate Court majority and held Caterpillar Tractor “prescribes the proper test for analyzing whether an injury ‘arises out of’ a claimant’s employment, when a claimant is injured performing job duties involving common bodily movements or routine everyday activities.” What is odd about the Court’s recognition of Caterpillar Tractor is WC benefits were denied in that claim! I am mildly baffled to see the ruling used to support a claim for benefits. With deepest respect to our reviewing courts, in my view, rulings like this are almost impossible to make sense of. The act of “stepping off a curb” is something that happens literally millions of times every day across the globe—if you are a klutz and injure yourself stepping off a typical street curb, you shouldn’t be able to complain to your employer and get substantial benefits. Please also note lots of WC fraud may follow when Claimants find out how easy it is to “fake” such occurrences that I don’t consider “accidents.” Welcome to Illinois.

The Supreme Court explained, consistent with Caterpillar Tractor, common bodily movements and everyday activities at or near work are compensable and employment-related if the activity that caused the injury “had its origin in some risks connected with, or incidental to, employment so as to create a causal connection between the employment and the accidental injury.” The Court then overruled Adcock and its progeny to the extent that they require a claimant to additionally prove he or she was exposed to a risk of injury to a greater extent than the general public. The Court further found McAllister’s injury was the result of a risk that was distinctly associated with his employment and, as such, was compensable, and held the Commission’s finding claimant was injured by a neutral risk that was not related to his employment was against the manifest weight of the evidence.

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

Synopsis: A New IN Work Comp Board Rule for More Specificity in Applications and COVID claims update. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D

Editor’s comment: Maybe you haven’t heard about this new rule change yet, but the Indiana Worker’s Compensation Board recently posted an important notice to help eliminate vague Applications for Adjustment of Claim. It’s been pretty common over the past decades for savvy Plaintiffs’ attorneys to file very bland Applications for Adjustment of Claim with only minimal language to describe the injuries. You’ve probably seen this kind of injury description: “injured on the job,” or “injured in the course and scope of employment” with no real description of what happened or what body part was injured. Plaintiffs’ attorneys would generalize for a variety of reasons including the ability to add additional injuries that may arise later since they did not specify a body part or type of incident.

That practice is not allowed any more. If you receive an unspecific Application, contact me and we’ll take appropriate action to get it fixed. Plaintiffs’ attorneys will have to amend with better descriptions now. Their new amended Application will be deemed to have been filed on the date of the original Application. But still, don’t let them get away with it. Make them specify at the outset of their claim.

I hope everybody is healthy and making it through the COVID-19 changes to just about every aspect of our lives in some form or other. In Indiana, we still have not had a published judge ruling in Indiana workers compensation cases on the virus since I updated you in April 2020. Our Legislature has not been in session for months, so legislation hasn’t been enacted except at the State and local level regarding masking and crowd sizes.

Indiana has not taken or followed the aggressive leads of surrounding states like Illinois, Michigan and Kentucky. So, still treat your claims as an occupational disease. Also, the IWCB’s notice issued in April that I previously covered in our newsletter is still helpful and remains good guidance regarding first responders, health care providers and others who may contract the disease in their work. If you need that information again, let me know.

We appreciate your thoughts and comments. Please post them on our award-winning blog. You can reach Kevin Boyle at kboyle@keefe-law.com for any concern related to Indiana or Illinois workers’ compensation, general liability or employment law.

Synopsis: Annual IL State Chamber WC Conference Goes Virtual—Shawn Biery & John Campbell to present.

Editor’s comment: The 14th Annual Workers' Compensation & Safety Conference set for November 4th is being held virtual this year. The 8:30 am to noon program features John Ruser, President & CEO of the Workers' Compensation Research Institute (WCRI) and Michael Brennan, Chairman of the Illinois Workers' Compensation Commission.

The program also will include the following breakout sessions:

• Advances in the Diagnosis and Treatment of Carpal Tunnel Syndrome - Presented by Dr. Andrew Zelby and Dave Rusch, Vice President of Business Service Development, Ovation Hand Institute;

• Medical Marijuana in the Workplace - Presented by AJ Sheehan, MVP Law

• The Covid-19 Rebuttable Presumption - What is it and What Does it Mean for You? - Presented by Peter Stavropoulos, Brady Connolly and Masuda

• 2020 Workers Compensation Case Law Update - Presented by Shawn Biery and John Campbell, Keefe Campbell Biery & Associates

• Snakes, Leaches, and Tobacco Enemas - The Case for Evidence-Based Medical Treatment Guidelines - Presented by Patrick Robinson, Vice President, Government Affairs, ODG, an MCG Health Company

• OSHA Updates for 2020 and Beyond - Presented by Matthew Horn, SmithAmundsen LLC

For more information and to register:

https://ilchamber.org/workerscompconference/

9-24-2020; Illinois has Another Awful Anti-Business Law and It Can't Be Blocked by the IL WC Act; Feds Propose New Rule to Allow Determination of "Independent Contractor" Status Easier and more

Eugene Keefe <EKeefe@keefe-law.com>

9:00 AM (2 hours ago)

to

Synopsis: Illinois Has Another Awful Anti-Business Law and This Law Can’t Be Blocked by the IL WC Act.

Editor’s comment: In McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398 (issued September 18, 2020), the Appellate Court ruled the exclusivity provisions of the Workers' Compensation Act do not bar a claim for statutory, liquidated damages, where such damages arise under Illinois’ Biometric Information Privacy Act where an employer is alleged to have violated an employee's statutory privacy rights under the Biometric Information Privacy Act. The court ruled a claim under the Privacy Act is not the type of “injury” that fits within the purview of the IL Workers' Compensation Act. In short, the Illinois Appellate Court ruled IL employers can’t use Section 5 of the Illinois’ Workers’ Compensation Act to escape a rapidly growing number of class actions under IL new biometrics privacy law. The unanimous Court’s ruling is because the lawsuits brought under the biometrics law accuse the employers of violating the workers’ rights, but not actually harming them in any real way.

On Sept. 18, 2020, a three-justice panel of the Illinois First District Appellate Court in Chicago ruled the Illinois Workers’ Compensation Act does not bar class action lawsuits brought under the Illinois Biometric Information Privacy Act. Quoting the ruling, “… We conclude that the exclusivity provisions of the (Workers’) Compensation Act do not bar a claim for statutory, liquidated damages, where an employer is alleged to have violated an employee’s statutory privacy rights under the (Biometric Information) Privacy Act [or BIPA], as such a claim is simply not compensable under the Compensation Act,” the justices wrote.

The ruling arose out of an appeal on a question of law from a class action lawsuit pending in Cook County Circuit Court since 2017. In that case, attorneys with a Chicago-based class action law firm filed suit against the corporate entity that operates the Symphony Bronzeville nursing home in Chicago. The lawsuit, which could represent virtually all of the workers at the nursing home in recent years, was filed on behalf of a named plaintiff.

The lawsuit accused the nursing home operators of violating the Illinois BIPA law by requiring its workers to verify their identity by scanning their fingerprints when punching in and out of work shifts, without first securing authorization from the workers to conduct the scans and without first notifying the workers about how their scanned prints would be collected, stored, used, shared and ultimately, destroyed, as allegedly required by the BIPA law.

In response to the lawsuit, attorneys representing Symphony argued the BIPA case should be dismissed, because the claims were preempted by the Illinois Workers’ Compensation Act. Symphony centered its arguments on a key provision in the workers’ comp law, which declares the workers’ comp law “preempts any ‘statutory right to recover damages from the employer … for injuries incurred in the course of … employment.”

The argument advanced by Symphony in this claim, and by other employers targeted in other similar BIPA class actions, had not secured any victories, either in state or federal court. As veteran defense observers, we greatly dislike the BIPA law but we don’t feel this attack on the legislation makes sense other than as a delaying tactic to block enforcement of the law. All state and federal judges sided against the employers on the workers’ comp law question.

Across this State, hundreds of employers face similar class actions in reliance on this punitive and anti-business law, with more being added, almost daily, in Cook County Circuit Court and other venues. The lawsuits place IL employers at a business-busting financial risk. Under the BIPA law, employers could face potential liability of $1,000-$5,000 for every single violation of the BIPA law. Please understand this is wildly punitive and doesn’t in any way match the conduct it is designed to stop. In these kinds of class actions, the law has been laughingly interpreted to define a “violation” as each time any worker punched the clock every day by scanning a fingerprint. This could place even moderately sized employers at risk of losing millions of dollars in damages and certain bankruptcy. Again, this law highlights to me how awful our IL legislature is to vital businesses.

We appreciate your thoughts and comments. If you need help defending your company in the biometric sphere, please send a reply.

Synopsis: New Proposed Rule from the Feds on “Independent Contractor” Versus “FLSA Employee.”

Editor’s comment: The U.S. Department of Labor (DOL) issued a proposed rule Sept. 22 to clarify when a worker is an “employee” covered by the Fair Labor Standards Act (FLSA) versus an independent contractor. Independent contractors, including what are called “gig-economy workers,” are not eligible for minimum wage, overtime and other benefits/protections that regular employees must receive. The proposed rule adopts an "economic reality" test to determine a worker's status as an FLSA employee or independent contractor.

There will be a 30-day comment period after the proposed rule's official publication in the Federal Register. The rule, if finalized as proposed, may make classifying workers as contractors or employees easier. However, the US DOL proposed rule would not overturn labor-friendly state independent-contractor laws, such as the one in California.

Gene Keefe’s “Independent Contractor” Rule

In my view, someone is an “independent contractor” when they have their own work comp, liability, MVA and other insurance coverage. You can buy it for them or give them money to buy it but if they have their own coverages on their own dime, insurance coverages to a great extent, mitigate corporate exposure in the event of injury or serious loss.

If a supposed “independent contractor” is injured or disabled and they have no WC or other coverage, they are going to fight to be treated as an FLSA employee.

Economic Reality Test Proposed by the Feds

Under the proposed economic reality test, the U.S. DOL would consider whether a worker is in business for himself or herself and thus is an independent contractor, or if the worker is economically dependent on another business entity for work and is an FLSA employee.

In making this determination, the DOL would identify two core factors:

§  The nature and degree of the worker's control over the work.

§  The worker's opportunity for profit or loss based on initiative or investment.

It also would identify three other factors that may serve as additional guides in the analysis:

§  The amount of skill required for the work.

§  The degree of permanence of the working relationship between the worker and the potential employer.

§  Whether the work is part of an integrated unit of production.

But the two core factors are entitled to greater weight than the other factors, the DOL noted.

Core Factors

The first factor—the nature and degree of the individual's control over the work would suggest that an individual is an independent contractor to the extent they exercise substantial control over key aspects of the performance of the work, the DOL explained.

Examples of an individual's substantial control include:

§  Setting his or her own work schedule.

§  Choosing assignments.

§  Working with little or no supervision.

§  Being able to work for others, including a potential employer's competitors.

In contrast, the control factor would weigh in favor of classification as an employee to the extent that a potential employer, rather than the individual, exercises substantial control over key aspects of the work, including through requirements that the individual work for the employer exclusively during the working relationship.

The proposed rule clarifies that requiring an individual to comply with specific legal obligations, satisfy health and safety standards, carry insurance, meet contractually agreed-upon deadlines or quality control standards, or satisfy other similar terms that are typical of contractual relationships between businesses would not constitute control that makes the individual more or less likely to be an employee under the FLSA.

The second factor—the worker's opportunity for profit or loss based on initiative or investment—would, under the proposed rule, suggest that an individual is an independent contractor if he or she has an opportunity for profit or loss on either:

§  The exercise of personal initiative, including managerial skill or business acumen.

§  The management of investments in or capital expenditure on, for example, helpers, equipment or materials.

We appreciate your thoughts and comments. If you have concerns about “independent contractor” versus FLSA Employee status, please send a reply.

Synopsis: Annual IL State Chamber WC Conference Goes Virtual—Shawn Biery & John Campbell to present.

Editor’s comment: The 14th Annual Workers' Compensation & Safety Conference set for November 4th is being held virtual this year. The 8:30 am to noon program features John Ruser, President & CEO of the Workers' Compensation Research Institute (WCRI) and Michael Brennan, Chairman of the Illinois Workers' Compensation Commission.

The program also will include the following breakout sessions:

• Advances in the Diagnosis and Treatment of Carpal Tunnel Syndrome - Presented by Dr. Andrew Zelby and Dave Rusch, Vice President of Business Service Development, Ovation Hand Institute;

• Medical Marijuana in the Workplace - Presented by AJ Sheehan, MVP Law

• The Covid-19 Rebuttable Presumption - What is it and What Does it Mean for You? - Presented by Peter Stavropoulos, Brady Connolly and Masuda

• 2020 Workers Compensation Case Law Update - Presented by Shawn Biery and John Campbell, Keefe Campbell Biery & Associates

• Snakes, Leaches, and Tobacco Enemas - The Case for Evidence-Based Medical Treatment Guidelines - Presented by Patrick Robinson, Vice President, Government Affairs, ODG, an MCG Health Company

• OSHA Updates for 2020 and Beyond - Presented by Matthew Horn, SmithAmundsen LLC

For more information and to register:

https://ilchamber.org/workerscompconference/