5-3-2021; IL WC Trip and fall denial in IL WC may hang on a “shoe-string;" by Michael Palmer; How Much Do U.S. Employers Have to "Teach" FMLA Rights and more

Synopsis: Trip and fall denial while leaving work in IL WC may hang on a “shoe-string”! Research and writing by Michael Palmer, J.D., KCB&A’s most recent addition.

Editor’s Comment: In their solid ruling, the IL WC Commission delineates the subtle differences which may trigger compensability vs. denial in fall-down cases.

In Weston v. Illinois State Department of Children & Family Services, Petitioner was going to her employer’s orientation program and instructed to park in the lot in front of the building or in the alternative, a second lot nearby. The claimant parked in the lot in front of the building.

When leaving for her lunch break, she was walking on the city sidewalk between the building and the parking lot when a decorative shoelace from her own boot became caught in an uneven crack in the walkway. She fell and suffered a torn meniscus, collateral ligament sprain, and a ruptured Baker’s cyst. These are injuries that might typically lead to compensability.

The Arbitrator found the Petitioner failed to prove the accident arose out of and in the course of employment, noting she failed to prove the employer owned, controlled or operated the parking lot or walkway in question. Further, the risk of getting a decorative boot lace from one’s own choice of footwear caught in the sidewalk was a personal risk. The IL WC Commission panel affirmed.

Their analysis indicated control of the parking lot, walkway and premises remains an element of the legal analysis here, but such facts aside, in assessing slip & falls, the employer should always examine whether the employee’s risk of accident was at all personal. This claim indicates if an employee is injured due to a personal risk, even a “wardrobe malfunction”, the claim may be defeated/denied as a non-work-related risk.

If you need a copy of the decision, send a reply. This article was researched and written by Michael Palmer, J.D. who just joined the defense team at KCB&A. You can reach Mike at mpalmer@keefe-law.com.

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Synopsis: Do U.S. Employers Have to “Teach” FMLA to Your Workers Who Suffer Work Injuries?

Editor’s comment: Recently, the 11th Circuit Federal Court of Appeals considered an employer's failure to notify an employee of simultaneous FMLA rights when the worker suffered injury and received workers' compensation benefits.

When faced with a similar case, the 10th Federal Circuit also considered this issue, but would it follow the other Circuit's lead?

The facts are simple. An employee experienced an elbow injury at work and met with the employer’s human resources folks to discuss workers' compensation rights. Although the worker was simultaneously eligible to take unpaid leave under the Family and Medical Leave Act, it appears the human resources team did not advise about such concurrent eligibility.

Following the injury, the worker's doctors initially placed restrictions on work, which the employer accommodated. Later, when the doctors cleared the employee to return to full duty, the company notified the worker that it was terminating employment. It appears this may have been due to the employer not having work for both the injured employee and other similarly situated workers, too.

The employee sued in Federal Court, claiming the company sort of “violated” the worker’s FMLA rights. At trial, a jury concluded the company violated the FMLA by somehow interfering with the worker's right to take FMLA leave. However, the jury also decided the violation wasn't willful and the company would have terminated the electrician regardless of FMLA eligibility. Thus, to some extent, the jury ruled in the company's favor, after considering all the evidence.

At trial, a company representative reported if an employee suffered an injury that was covered under workers' compensation, the company would hold back the FMLA leave and not run both FMLA and WC concurrently because the company felt the workers' compensation claim adequately covered or protected the employee. It doesn’t appear the employer advised their workers of that position. I don’t agree with this employer’s handling of concurrent FMLA and WC rights—if you want to know details, send a reply.

Following the verdict, the employee appealed to the 10th Circuit, alleging the jury's finding contradicted the evidence at trial. The employee asserted the evidence indicated the company willfully interfered with FMLA rights by not fully disclosing what the employer was doing.

The Court noted to show a willful violation of the FMLA, an employee must demonstrate the employer knew or showed reckless disregard for whether its conduct was prohibited by the FMLA.

As an aside by me, I am not aware of a “full disclosure” provision in either FMLA or workers’ compensation.

Did the company willfully interfere with this Worker's FMLA rights?

There are two possible answers:

• Yes. The company purposefully did not provide the worker with FMLA notice when the employee experienced a medical condition which would cause lost time due to an injury that occurred at work.

• No. While failing to let the electrician fully know about his FMLA rights, the employer might have been negligent, but the worker didn't show “reckless disregard” by his former employer.

If you chose B, you agreed with the court in Skerce v. Torgeson Electric Company, which upheld the jury's decision in the company's favor. According to the 10th Circuit, the failure to let the worker know about the FMLA was “mere negligence or an unreasonable determination of its obligations under the FMLA.”

The federal court also highlighted either the company or the workers' compensation insurer paid the worker benefits during the time they were unable to work. Additionally, the 10th Circuit noted that regardless of the requirements of FMLA, when the worker recovered, the company did not have work available for the worker and would have terminated this employee anyway.

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

4-25-2021; Crucial "Must Read" For IN WC adjusters and risk managers--CAUSE System to Pause for a Week; John Campbell on important marijuana "presumption" ruling and more

Synopsis: Worker’s Compensation Board of Indiana Is Going Down For a Week Starting April 29th, as CAUSE takes a Pause. This is a “Must Read.” Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.

Editor’s comment: The Worker’s Compensation Board of Indiana just published a very important notice that you need know about if you use the Indiana CAUSE system, as part of claims handling. 

Please spread the word:

At noon this coming Thursday, April 29th, 2021, the Accident Tracking system used by the IWCB will go down and remain inoperable for one week. On Wednesday, May 5th, 2021, the IWCB’s new electronic file management system is scheduled to launch. The week of downtime is needed to freeze current data while transferring it to the new system.

The CAUSE system will not be operable and certain forms such as Certificates and forms triggered by EDI transactions will not go out during this time. The IWCB requests that you continue to file all EDI transactions as required during the down time. Once the new system is up and running, all forms that were suspended will be sent out.

Also, some of the IWCB’s forms will change format with the new system. Expect to see a new layout of the Denial form and the 38911 (Report of Temporary Total Disability / Temporary Partial Disability Termination). 

The 38911 form will now actually provide additional information that will be divided between the form and a new Benefit Summary, which will be attached. These “forms” will generate based on information provided through EDI.

If you have any questions regarding the shutdown, you can contact the IWCB’s IT manager David Babcock at dbabcock@wcb.in.gov.

This article was researched and written by Kevin Boyle, J.D., law partner at Keefe, Campbell, Biery & Associates, LLC. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment or any other legal issues, please contact: kboyle@keefe-law.com

Synopsis: IL WC--City driver overcomes intoxication defense to win benefits after an auto accident, despite positive drug screen for marijuana. Can IL employers make the “rebuttable presumption” stick? Details, details, details….

Editor’s Comment: Seasoned industry observers will recall the optimism of employers back in 2011, when Section 11 of the Illinois Workers’ Compensation Act was amended to strengthen employer’s ability to deny claims where drugs or alcohol were involved. Where intoxication of the worker at the time of the accident can be established, such intoxication compels a “rebuttable presumption” that intoxication was the proximate cause of the accident and the claim may be denied.  

However, as the case-law on this topic developed, and as the rules for perfecting the defense grew more cumbersome for employers, the success of such defenses dwindled. While still a viable defense in some claims, employers must appreciate the difficulty in perfecting an intoxication defense. Simply relying on a positive drug screen is often not enough without other supporting evidence.  

This trend is exemplified in the recent IL WC Commission ruling of Reid v. City of Chicago 29 ILWCLB 38 (2021). In Reid, a City driver had a collision with another vehicle and tested positive for marijuana after the accident. The City denied the claim, arguing the presence of marijuana triggered the rebuttable presumption that intoxication was the proximate cause of the accident. However, the finer details demonstrate that such reliance by the City was tenuously based.

In upholding the aware of benefits, the Commission panel explained that the positive drug screen alone did not evidence a particular level of marijuana, only its presence in a screening. Therefore, there was no toxicological level of marijuana identified to prove or effectively establish impairment/intoxication, and Petitioner testified (of course) that he was only “exposed” to marijuana weeks earlier and was not intoxicated at the time of the accident.

This is often the challenge for IL employers, who send workers to a clinic for a general screening, but do not obtain a toxicological panel with measured levels. Unless such a panel of toxicity levels is obtained, it is very difficult to otherwise prove intoxication simply by a positive THC screening. This has become even more challenging with the legalization of marijuana in Illinois, both medicinally and recreationally.

Remember traces of marijuana remain in the body far longer than alcohol. Therefore, an employee may arguably enjoy recreational marijuana on a Saturday night, and still reveal presence of the substance in his/her body days or weeks later, with no apparent intoxicating effect. For this reason, employers cannot simply rely on a general screening as proof of intoxication. Finally, in the case at hand, the accident was apparently caused by the other driver of an oncoming vehicle who crossed the center lane.

Therefore, there is no evidence of operator error on the part of Petitioner (which may help support an argument he was not intoxicated). Here again, IL employers should note that any accident should be fully investigated for cause and contribution, aside from any intoxicating agent. Where an injury may have occurred due to a third party regardless of the potential for intoxication, benefits may nevertheless be awarded. To some extent, it appears defense counsel for the City blindly relied on the drug use “presumption” without really scientifically documenting the defense.

This article was researched and written by John P. Campbell, J.D., managing partner at Keefe, Campbell, Biery & Associates, LLC. Please reach out to John for help and defense tactics in your work intoxication WC claims.

4-19-2021; Trying For WC News of Interest--CompFile is Coming to an IL WC Claim near you; Just because NCM's aren't mentioned in the IL WC Act or Rules doesn't mean they don't provide value and more

Synopsis: Lots of My Readers are Asking—What is Up, Are You Still Writing the KCB&A Update?

Editor’s comment: The problem I am facing during the Great Pandemic of 2020-2021 is there isn’t much news that I feel is of interest to the greater WC community. There have been very few IL WC Appellate Court rulings to report on. I am not a “news-creator” and don’t feel it necessary to stretch to find headlines. When I have news that is “fit to print,” I promise to publish.

Here are a couple of thoughts that may be of interest to you.

First, CompFile for IL WC is interesting and “real.” Settlement contracts are already part and parcel of this new process. The transcript phase of CompFile is about to launch. Please take the time to read below for information on how the system will work on the court reporter end of things. Also included are a few suggestions that will improve the ease of transition to CompFile for court reporters and attorneys/paralegals on both sides.

In IL Zones 1, 2 and 3, transcripts are ordered by both parties 95% of the time. The transcript is then sent to you by email and a copy is also sent to the Arbitrator. Both parties split the cost. This will remain unchanged. 

When a Petition for Review to the IWCC panel is filed, there will be no more paper copies of the transcripts mailed—it will all be online. All transcripts will now be accessed through CompFile. The assigned court reporter will upload the transcript and associated exhibits to CompFile. If both sides order an interim transcript, the cost of the exhibits will be the only charge remaining to both parties if an appeal is filed and this will be split between both parties. Again, this is ONLY if both sides order an interim transcript at the time of the trial. Please be aware that the CompFile system tracks downloads of the transcripts. If you do not purchase a transcript, you are not entitled to the court reporter’s work product. 

As has been your practice in the past, the certified court reporters would appreciate prompt payment once the transcript is uploaded and available in CompFile. Some court reporters will be requiring pre-payment but they do not want to do that if they don’t have to. When only one party orders at the time of trial, the necessary price adjustments will be applied, but do keep in mind it is considerably more cost=effective when both sides split the transcript at the time of trial, and the arbitrators have all told the reporters it is extremely helpful to them when they have a copy of the transcript when writing their decisions.

Please consider the following while we make the transition to CompFile—Stop With Staples!

The court reporters will be responsible for scanning all exhibit pages which will now be found at the end of the transcript rather than incorporated within. Staples make the scanning process difficult. Pages can be missed and torn. If you would consider using clips instead, it would make the reporter’s job much easier. Accumulated clips will be returned in bulk during dockets to reduce the added expense to your office so they can be reused.

Please don’t submit double-sided pages. 

Another very helpful thing would be if you would number each page within your exhibits. The numbering of pages will ensure that all pages are present and complete.

As far as DVDs, thumb drives, etc., please assume we will be schooled on that at some point but right now we have no idea how those types of exhibits will work. Now they just stay with the file.

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

Synopsis: If Something isn’t Mentioned in the IL WC Act or Rules, It Doesn’t Mean It Doesn’t “Exist.”

Editor’s comment: One of the Top Petitioner’s Attorneys Wrote in the WC Section of the ISBA Blog:

“The Illinois Workers' Compensation Act doesn't have any provisions regarding nurse case managers. So, I do not allow such persons to be involved in any aspect of the case.”

I have heard this objection to nurse case managers before. Please note my constant advice to the other side of the WC bar—no one puts an NCM or telephonic nurse on a claim because it is a minor claim.

Here are some simple thoughts—there are lots and lots of things that we deal with every day as WC professionals that aren’t mentioned in the law.

For one example, in the IL WC Act and Rules, there is a very short mention of Certified Vocational Counselors or CRC’s. The law confirms they have to be “certified.” There are no other provisions. CRC’s are used all the time by both sides of the bar.

Second, there is no provision or description of FCE’s or functional capacity evaluations. I do not feel FCE’s are “medicine” and should not be used, ever. Funny how they appear in case after case.

Third, Surveillance operatives are used constantly in workers’ compensation claims across the U.S. There is no mention of them in the IL WC Act or Rules. Their work, if relevant, is admissible and appears in numerous claims.

The simple point I am making is nurse case managers have a role in handling a WC claim. They are used when their expertise suits the claim. They follow rules and guidelines recommended by Petitioner’s attorneys. In my view, objections to NCM’s is easily cured—make sure they report to both sides of the claim simultaneously.

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