6-2-2021; Illinois GL Claims will now have Prejudgment interest--Learn the Rules; Good News for IL WC Costs--We are in the middle!!! and more

Synopsis: New Law Allows for prejudgment interest in some IL personal injury and wrongful death claims. This is a “must-read” for personal injury/liability adjusters, risk managers and defense attorneys.

Editor’s comment: Governor Pritzker signed and thereby enacted this new law that I assure you was quietly sponsored by the Illinois Trial Lawyers. The law might cause multi-million verdicts to be even more painful for insurance carriers, self-insureds and physicians/hospitals defending medical malpractice claims. As I have advised many times, Illinois has overwhelming Democrat majorities in the IL House and Senate, along with our very, very liberal Governor. As Gov. Pritzker is an owner of Hyatt Hotels, one has to wonder how the folks at their legal department feel about the rising claims costs posed by this new law.

The new law requires:

• Prejudgment interest will accrue at the rate of 6% from the date the action is filed in personal injury or wrongful death cases.

• This new law does not impact IL WC claims.

• If Claimant’s counsel takes a voluntary dismissal to refile the action within a year, interest is tolled for that time.

• It exempts punitive damages, sanctions, statutory attorney’s fees, and statutory costs;

• The law exempts/does not apply to claims against the State and other governmental entities.

• Experts are unsure whether it might apply to employment discrimination claims—that may have to be litigated and decided in the courts.

• Prejudgment interest is capped at 5 years (you may note there was no cap in previous versions of the bill).

Please consider making a reasonable settlement offer in major personal injury and wrongful death claims to avoid prejudgment interest.

The way the new law is created, prejudgment interest will be applicable only to the difference between the judgment and the highest rejected offer (within the applicable time frames). Prejudgment interest may not be added if the judgment is equal to or less than the amount of the highest written settlement made by the defendant not accepted or rejected by the plaintiff within 90 days of the offer or rejection.

For any personal injury or wrongful death occurring before July 1, 2021, the prejudgment interest shall begin to accrue on the later of July 1, 2021 or the date the action is filed.

The new law is effective July 1, 2021.

We do not feel this is going to make Illinois any “friendlier” to businesses looking to start, move or expand here but I caution many States already have prejudgment interest and this interest amount and the way it is being administered seems reasonable to me, particularly if you know the earlier versions of this law.

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

Synopsis: Illinois WC Does Fairly Well in Recent State-by-State WC Cost Rating by AdvisorSmith.

Editor’s comment: While looking up other things, I found a state-by-state WC cost listing from this company that appears to be a national business insurance outfit. They indicate their stats are from the Bureau of Labor Statistics and the Oregon Department of Consumer and Business Services. I do feel it has good news for Illinois businesses and the WC community.

The highest state is New Jersey with an annual WC cost per employee of $1,415. The lowest is North Dakota at $376.

If you take a look at this link https://advisorsmith.com/workers-compensation-insurance/cost/ you will note Illinois WC is right in the middle at No. 24. Our workers’ comp costs per hour are $0.39 and average annual cost per worker are $820.

The study notes each state and the District of Columbia run/monitor their own workers’ compensation systems, and rules for which companies are required to have this insurance vary in each state. In many states, all companies with employees are required to carry workers’ compensation insurance, while in other states, only companies that surpass a minimum number of employees are required to have coverage. Texas is the only state in which workers’ compensation insurance is not legally required and employers are allowed to “opt out” of coverage, which may allow the worker to sue for injuries in their courts.

The study noes in most states, private insurance companies and self-insured employers provide all or some of the workers’ compensation insurance policies available to businesses and governments. Some states have a mixed system in which the state also runs a workers’ compensation insurance program that can be used to purchase insurance. Finally, a few states have a fully state-run system, in which workers’ compensation insurance is required to be purchased solely from the state.

Additionally, other factors that affect the WC premiums paid by businesses and local governments between states are the types of jobs and businesses within the state, the worker safety regulations required by each state, wage rates in the state, and medical costs in each state.

Please note my view that Appellate ruling like McAllister v. IWCC are certain to skew our current results and make IL WC more pricey. I also feel the same way about the new trend to have every worker get “loss of trade” of an incalculable and un-reservable amount that is being doled out as “body as a whole.”

I have no pecuniary or other interest in AdvisorSmith. I appreciate your thoughts and comments. Please post them on our award-winning blog.

Workers' Compensation Workshop: What's Changed for 2021? 

Wednesday June 16, 2021

9:00 am - 4:00 pm

Fairfield Inn & Suites

1111 N. Henrietta St.

Effingham, IL 62401

Join Attorneys from Keefe, Campbell, Biery & Associates to learn what has changed for 2021 regarding Workers’ Compensation! The presentation will offer an overview of Illinois Workers’ Compensation where attendees will gain a greater understanding of the IL Workers’ Compensation system of benefits and litigation, learning key terms & terminology. This will include a discussion of issues you may encounter during claims and tips for effective handling and management.

The presenters will discuss specific areas including the impact of COVID-19 claims and legalization of cannabis as well as relevant case-law updates.

Register Here

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.

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

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.