Keefe, Campbell & Associates, LLC

Editor’s comment: LexisNexis Workers’ Compensation Law Center elected us to their Top 25 Blogs for Workers’ Compensation and Workplace Issues.

We are pleased to announce KC&A’s Workers’ Compensation & Employment Law Blog has been selected as a LexisNexis Top 25 Blogs for Workers’ Compensation and Workplace Issues – 2009, in the Best Blogs to Watch category. Selections were made by the LexisNexis Workers’ Compensation Law Center staff using feedback from community members and Larson’s National Workers’ Compensation Advisory Board members.

The Top 25 Blogs contain some of the best writing out there on workers’ compensation and workplace issues in general. They contain a wealth of information for the workers’ compensation community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blog sites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers’ compensation and workplace issues.

You can read the full announcement and list of honorees at

http://law.lexisnexis.com/practiceareas/Workers-Compensation-Law-Blog/Workers-Compensation/LexisNexis-Top-25-Blogs-for-Workers-Compensation-and-Workplace-Issues—2009-Honorees

If you are looking for any article previously written in this update, or just want to browse through a host of insightful articles dealing with our Illinois Comp system, stop on over to www.keefe-law.com/blog and take a look. Our currently archived articles date back to August 2008.

Editor’s comment: We recently had a friend of the firm ask us this question, and we answered with a hearty affirmative.

We have seen these types of affirmative signings in a variety of formats throughout the years – simple weekly/pay period signings on a timesheet, every day signings on a time clock punch slip, and even actual individual documents. Essentially, it is our reasoned legal opinion asking questions of whether any workplace injury occurred in no way infringe on a worker’s rights and could be incorporated into such a document without legal detriment to the employer.

In fact, one could easily incorporate the following statements as a simple form or addendum an employee could either check of as affirmative, or outline answers to if needed:

I am injury free and have not been involved in any work accidents or injuries other than as listed below.

I am physically able to perform all work assignments without accommodation; if accommodation is requested, outline in Description section below

I understand that I am to report all work accidents or physical problems, no matter how minor, to my supervisor immediately.

When asked if something like this would run foul of the ADA or of any similar law of the state of Illinois, we again have to emphatically confirm it is our reasoned legal opinion this type of reporting is proactive behavior intended to help workers, and such accurate reporting of injuries with hopefully swift treatment is a goal to be worked toward, not an action to be punished.

If you would like a draft document of the type referenced in this article, please send a reply email and we would be happy to tailor one to your firm’s needs.

This article was researched and written by Arik D. Hetue, J.D. If you have thoughts and comments, please send a reply to ahetue@keefe-law.com, or post them later today on the blog at www.keefe-law.com/blog.

Editor’s comment: For those industry insiders who know Illinois Workers Compensation law like the back of their hands, this may be a bit of a review, but we recently updated our “Noteworthy Cases” spreadsheet and thought we would take this opportunity to point out some of the cases that have impacted Illinois over the years.

Hansel and Gretel Day Care Center v. Industrial Commission; Board of Trustees of the University of Illinois v. Industrial Commission; Wal-Mart Stores v. Industrial Commission – Turning in chair is not an accident; standing up from a chair is not an accident; if employers do not require employees to park in a certain area, falls in employer-owned parking lot not compensable—in theory these cases confirm the idea that Illinois workers’ compensation law rejects the “positional risk” doctrine. In practice, compare the outcome of these cases with Tinley Park Hotel and Convention Center v. Industrial Commission, where a fall-down was ruled compensable if Petitioner presents impossible-to-rebut evidence that “other people” stumbled previously in the area of fall-down. Still remains a tricky area of the law, but a defense is possible based on these rulings.

Hydraulics, Inc. v. Industrial Commission – Ex parte communications between workers’ compensation claimant’s healthcare providers and employer or employer’s legal representatives are supposedly inadmissible as evidence, to the extent such communication is considered contrary to the patient’s interests in litigation. Reliance on such opinions to deny benefits may result in penalties and fees if Petitioner seeks them. Please note the Hydraulics decision was rendered prior to enactment of HIPAA and may be unnecessary due to the sweeping parameters of federal law on medical privacy, requiring detailed releases. It remains to be seen whether this will have the same effect if the employer or his representative has a full HIPAA release authorizing such contact.

Interstate Scaffolding v. Industrial Commission (Cert. granted, ruling not final) – An injured worker may be terminated for just cause and the employer will not be required to pay further compensation after such a termination. This is a major defense precedent and an appeal has been granted by the Supreme Court of Illinois, a truly rare occurrence in workers compensation cases. At present, the ruling is good law, and we await the ruling of the Supreme Court. In the case at bar, a worker was returned to light duty and was found vandalizing company property by writing religious graffiti, and was terminated for such actions. Petitioner argued he should have been entitled to TTD until he received a release to return to full duty employ, and the Appellate Court ruled he was not entitled to further temporary benefits after a termination for just cause. This ruling could impact Wage Loss claims if Petitioner would have a position available at his prior rate but for the justifiable termination. We will be sure to update you when the Supreme Court ruling comes down.

Legris v. Industrial Commission – Payment of medical bills extends the statute of limitations for filing a workers compensation action. In Illinois an injured worker has three years in which to file his or her claim, but if the employer pays any medical bills submitted, the statute of limitations to file the suit extends two years from the date of payment. Something to watch out for on old claims, as it can re-open a potential claim even after it would have been barred.

McMahan, Robert v. Industrial Commission – 50% penalties, payable to claimant and a 20% attorney fee are imposed on medical bills not paid for frivolous reasons. Please note Illinois has no “bad faith” provision. Defense industry is petrified the IWCC and reviewing courts may some day extend these penalties/fees to all medical bills and/or benefits paid and unpaid. What this means for employers is that if you get medical bills forwarded for payment, get your denial letter out quickly if the bills are not accepted, along with a good explanation of the reasons why the bills are being denied.

Nascote Industries v. Industrial Commission; Mechanical Devices v. Industrial Commission – Claimant entitled to TTD for disputed periods based upon a variety of factors with maximum medical improvement (or MMI) clearly most important; if Petitioner is working on part-time or other basis prior to MMI, claimant can keep all income and be entitled to full TTD without any credit to employer. We consider this a radical interpretation of the statute–defense view is that the word “total” in temporary total disability has its plain meaning and should provide that if injured worker can work at all, TTD wage replacement benefit shouldn’t be due.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com or post them later today on the blog at www.keefe-law.com/blog.

Editor’s comment: Three major things happened the last two weeks on the Illinois legal/political/jobs scene.

First, the statistics on the U.S. economy again showed Illinois now has double-digit unemployment and is losing jobs to our sister states by the thousands. The Illinois unemployment rate was 6.7 percent a year ago. The Midwest U.S. jobless rate comes with no help from Illinois, where unemployment rose to 10.5% — a 26-year high, according to figures from the Bureau of Labor Statistics released Wednesday. Our state lost about 14,200 jobs from August to September 2009, according to the Illinois Dept. of Employment Security. The Midwest region of the U.S. was hit hard during this recession by job losses in manufacturing. Let’s all hope we can pull hard at the oars to get out of this recession.

Second, current Illinois Governor Pat Quinn threw his hat into the ring and is now running for Governor in next year’s elections. Governor Quinn officially kicked off his campaign to keep his job Thursday with a statewide tour. The theme of that tour: Jobs and Growth for Illinois. “I’ve got three priorities: jobs, jobs, and jobs,” the Democrat told supporters in nine cities, including Herrin, West Frankfort and Mt. Vernon. He said he plans to create jobs by investing in public works, high speed internet and education. The plan also focuses on encouraging entrepreneurship, marketing Illinois overseas, and investing in renewable energy like biodiesel.

Third, not one, not two but four unanimous and overwhelming rulings from our Appellate Court, Workers’ Comp Division for Illinois labor. In our humble view, with a single exception of reversing penalties, every factual and legal nuance went toward the labor side. Our goal in writing this article is to let our readers on both sides of the matrix understand the workers’ compensation system in this state is the “Lead Egg” of job creation—every one of these rulings points Illinois business towards our borders and does not show a state that is the least bit friendly to the interests of business. We urge everyone, including the Commission and reviewing courts; start to bring Illinois to the middle of U.S. workers’ comp systems and away from the bottom of the job-creation barrel.

In Bassgar v. Illinois Workers’ Compensation Commission, (No. 3-08-0781WC Oct. 15, 2009), a truck driver refused a route and was fired on the spot. As he was leaving, he admittedly “waved” at his supervisor—the record doesn’t indicate the nature of the wave or whether he had a single digit out as part of the wave. Both the fired worker and supervisor ended up battling and rolling around on the dock like a pair of silly schoolboys. You guessed it—after an extended scuffle, the goofy worker ended up with a broken arm. Claimant was later convicted of criminal battery for his role in the fight.

To his credit, the Arbitrator ruled claimant and his supervisor’s job had nothing to do with rumbling on a dock and benefits were denied. The Commission followed Illinois’ amorphous fight rule to find claimant may not have “started” the fight and therefore gets full benefits to the tune of $35,065 plus interest. The unanimous Appellate Court affirmed. We have no idea why anyone agreed this individual was an employee-he had already been fired! We are also certain there is a human resources/benefits manager who viewed the outcome with the same relish Chicago Bears fans had for Chad Ocho-Macho-Cinco prancing in the end zone this past weekend.

We caution our readers to understand the Appellate Court followed Illinois law in their ruling. We assert this is one of those Illinois laws that need to be changed to make our state more job-friendly—no one should be “rewarded” for injuries suffered in a fight, particularly when they are convicted of a crime. The “non-aggressor-gets-full-benefits” rule isn’t in the Workers’ Comp Act or Rules. It was made up by the Courts and it should be eradicated by our judiciary at the earliest opportunity. We can see an award of medical benefits but why add lost time and permanency? We consider it ironic to see the third ruling below providing benefits to a recreational worker whose “job” was found to be recreation when the Arbitrator accurately ruled this driver’s job had nothing to do with fighting. We also consider it ironic in the fourth ruling below to see the Appellate Court telling everyone it is not up to them to change the rules on marijuana/cocaine in the workplace and Illinois business needs to take that issue to the legislature—in this case, they are clearly providing benefits based solely on “judicial legislation” because the rule the courts created and continue to apply isn’t in the Illinois WC statute or rules.

In Washington District 50 Schools v. Illinois Workers’ Compensation Commission, (No. 3-08-0923WC Oct. 15, 2009), the Court affirmed the Workers’ Compensation Commission that ruled a school teacher whose undisputed annual salary was $40,416.48 will have an “imputed” salary for workers’ comp purposes of $53,888.64. We consider the reasoning for this obvious windfall to be blurring—they took out the weeks from summer break in calculating the average weekly wage. In our view, an “annual wage” is an annual wage and not 9/12s of an annual wage. We wonder if a school teacher who took his/her annual pay in a single lump sum of $40K could claim they were paid 365 times $40K for workers’ comp purposes. The Commission and reviewing courts obviously are going to be buffeted with claims from everyone who takes what is commonly called a “vacation” and seek to have those days eliminated from the equation in calculating the AWW. Please note police and firefighters usually work 9-10 days a month or about 120 days a year—you can bet they are all going to claim their imputed income for workers’ comp purposes should be tripled.

In Elmhurst Park District v. Illinois Workers’ Compensation Commission, (No. 1-08-2289WC Oct. 6, 2009), the Appellate Court reviewed a claim for an employee of a fitness facility who fractured his leg in a Wally-ball game during his shift, after a co-worker had asked him to participate or they would not have enough players and paying customers were in the game. Noting Section 11 of the Act bars recovery for voluntary recreational activities unless the worker is “ordered or assigned” to participate, the Court ruled the injury arose out of and in course of employment. The members of the Court analyzed the job and found it was part of the employee’s “job” to participate in voluntary recreational activities and accommodate customers. We ask the simple question—was it a “voluntary recreational activity?” If the answer to that question is yes and in our view it was voluntary and not mandatory participation, the risk of the activity and injuries arising therefrom is supposed to be the employee’s and not the employer’s.

In Szarek v. Illinois Workers’ Compensation Commission, (No. 3-08-0530WC Oct. 20, 2009), the Appellate Court considered a claim where an apprentice carpenter was rendered a paraplegic after falling through a floor opening. There was no question the worker violated not one but two criminal laws to the extent he had both marijuana and cocaine in his system—last time we checked it was a violation of both state and federal law to “possess” either. The employer contended a high level of marijuana use detected via urinalysis was the proximate cause of fall. Again, the Court followed the judicial rule in Illinois workers’ compensation law which effectively requires evidence the worker was so intoxicated he/she has to have “abandoned employment” to lose the right to benefits. We consider this to be another rule that isn’t much of a rule—how can you get hurt at work if you have to be so intoxicated or stoned you can’t work? We also point out most unions don’t want workers to be on the job impaired because they may drop things on or otherwise injure innocent co-workers. As we indicate above, the Appellate Court pointed the employer to the legislature to remedy the judicially created rule allowing compensability. This worker will receive $23,184.20 per year for life—as of today, he has a 47.6 year life expectancy so the pay out, if he lives that long will be $1,103,567.90 plus medical bills.

If you start to notice everything in the Illinois workers’ compensation system seems to be slanted towards Illinois labor and giving everyone benefits at the highest conceivable level, please don’t shoot the messenger. We don’t see a positive effect on the job situation on this state until there are a few rulings that bring hope back to HR/benefits/safety managers in Illinois. To our readers who want all this kept quiet and out of the public light, we want you all to understand the public has a right to know and insurance premiums and self-insured reserves will clearly be affected by these sorts of rulings—we don’t control such things.

If you also notice not one but two of these claimants violated state and federal criminal laws and still will receive substantial benefits, you are correct. We wonder if there is a provision in Illinois law which does not allow a criminal to profit from the crime by receiving things like state mandated benefits. We appreciate your thoughts and comments on all these rulings.

Editor’s Comment: Strict adherence to the language of the Illinois Employment Security Act brings likely unintended results in Emergency Treatment S.C. v The Department of Employment Security, No. 1-08-1437 (1st Dist. Sept. 30, 2009).This one reminds us of quality cheese, in that it is properly prepared and measured but undeniably smells foul. The Department of Illinois Employment Security seems intent on providing unemployment benefits to doctors and surgeons, and we can only assume mayors, governors, state senators and million-dollar executives are next. This case centers on whether administrative medical staff and medical professionals, doctors hired as independent contractors to work at a hospital emergency department, are employees as under the Illinois Employment Security Act, rendering Plaintiff liable for payment of unemployment contributions under the Act. The Department found they were and ordered Plaintiff to pay contributions on behalf of the employees hired under what is clearly an independent contractor relationship.

Plaintiff, an Illinois corporation, entered into an exclusive contract with Rush Copley Medical Center in Aurora, Illinois (Copley) to staff Copley’s ER department. Under the contract, Plaintiff was responsible to recruit physicians, provide physicians to staff Copley’s ER department, set hourly compensation and create schedules to ensure proper staffing. Plaintiff entered into independent contractor agreements with 15 physicians. Each physician worked as an independent contractor and not an employee of Plaintiff or Copley. Each physician was free to accept work assignments with other institutions, but was required to give prior notice of such employment and give Plaintiff first priority. Physicians gave scheduling requests to a scheduler, and schedules were submitted a month in advance. Physicians could be terminated with or without cause, and were required to attend continuing medical education, staff meetings and obtaining staff membership. Plaintiff could not terminate physicians until the end of each monthly schedule, but Copley could effectuate the termination of any physician at any time by withdrawing hospital privilege0. No physician could work for Copley within three years of ceasing tenure. Copley provided office space and supplies, liability insurance coverage for physicians and indemnification arising from physician negligence, but did not provide workers’ compensation insurance, liability insurance, health insurance or retirement benefits. Plaintiff did not withhold income taxes, nor pay for lost time for sickness, holiday or vacations.

Upon independent audit by the Department of Illinois Employment Security for fiscal year 2000, the Department’s Field Agent determined Plaintiff owed unemployment insurance contributions in the amount of $670.46, including statutory interest. Plaintiff filed a written protest and petition for hearing citing error in light of the independent contractor relationship. Upon hearing before the Department’s Director, Plaintiff established several of the physicians worked for other institutions concurrent with Plaintiff, as did the scheduler. The Director determined the Field Auditor’s report erred in excluding two of the physicians as not performing services for Plaintiff, and three others excluded as operating under a professional corporation despite being involuntarily dissolved prior to 2000. He determined the Field Auditor’s report under-calculated the amount of unemployment insurance contributions owed and that the Plaintiff failed to meet its burden of satisfying exclusion under Section 212. Plaintiff was ordered to pay $670.62, plus interest. The decision was affirmed by the Circuit Court and upon appeal to the First District Appellate Court; the matter was affirmed as outlined below.

Analysis: Section 206 of the Illinois Employment Security Act defines employment as any service performed by an individual by an employing unit. Section 204 defines an employing unit as any entity employing one or more individuals to perform services for it. Section 212 of the Act provides an exception to employment for service meeting all three of the following conditions:

1. The individual is free from the control of the employing unit in the performance of the service;
2. The service is outside the usual course of the employing unit’s business or is performed outside all the places of business of the enterprise for which the services are performed;
3. The individual is engaged in an independently established trade, occupation, profession or business.

The burden rests with the employing unit to prove satisfaction of these conditions to avoid obligation for unemployment insurance contributions.

The Director’s Decision noted Plaintiff controlled the employees by setting specific rules for the positions, setting the schedule for all physicians, requiring the scheduler to be available 24 hours a day and retaining the right to discharge these individuals, thereby failing to meet the first factor. The Director found the work performed by the physicians were essential to and in the usual course of Plaintiff’s business, and the fact the scheduler and auditor worked from home was insufficient to show compliance with the second factor. He further found Plaintiff could not establish the individuals were engaged in a service independent of Plaintiff’s trade, and the third factor could not be met. Plaintiff appealed to the Circuit Court, and ultimately to the Appellate Court alleging denial of Due Process because the Director held a pecuniary interest in the outcome of administrative hearings in that his department derived funding from the payment of unemployment insurance benefits paid to the department, and alleging the Director’s conclusion the physicians, Auditor and Scheduler were employees and not subject to the exception under Section 212.

Noting Plaintiff must satisfy all three requirement of Section 212 of the act and focusing specifically on the two alternative methods of satisfying the Section 212B of the Act, the Court determined Plaintiff failed to meet its burden. In analyzing Section 212b, the Court noted:

• Services which merely render the place of business more comfortable, such as window washing, or otherwise are not necessary to the employing unit’s business, are outside the usual course of business and meet the exclusion, but
• The performance of services outside the employing unit’s premises, such as a typist typing manuscripts from home, renders the place where those services are performed as the employing unit’s place of business.

Plaintiff argued the cases setting forth liability for unemployment insurance benefits were distinguishable, as they all involved employment of nonprofessionals or day laborers and not “highly trained, licensed and highly paid professionals acting on their own accord in voluntarily choosing a relationship of independent contractor and not employee.” Plaintiff argued its business focused on supplying physicians to hospitals and it is not qualified to render medical services, while the business of the physicians was treatment of emergent medical conditions. The Court noted Plaintiff did not only supply physicians, it created hospital staff schedules, established protocol and set salaries, and found the services of the physicians, Scheduler and Auditor necessary components of Plaintiff’s business, without which there would be no business. The Court found Copley’s ER department as the location of Plaintiff’s business to the extent it was the sole location from which Plaintiff’s physicians worked on Plaintiff’s behalf, and the homes of the Auditor and Scheduler were locations of Plaintiff’s business similar to the example of the typist above. The Court noted the preparation and maintenance of the work schedules were within the course and scope of Plaintiff’s business, and Plaintiff paid the schedules expenses in setting up her home office. Based on these factors, Plaintiff failed to satisfy the Act’s requirement of Section 212B to show the individuals’ services were outside the usual course of the Plaintiff’s business or performed outside all the places of Plaintiff’s business, and the Court affirmed the Department’s decision finding Plaintiff liable for unemployment insurance contributions of all its physicians, Auditor and Scheduler.

The problem with this result isn’t that it’s improperly reasoned in accordance with the specific language of Section 212 of the Illinois Employment Security Act, but that it’s simply wrong in its result. We find it impossible to believe unemployment benefits, the rescue of the recently unemployed, the hand up never regarded as a handout, were ever intended for the wealthiest of our society simply because they fit the build of a poorly molded statute. Such well-paid professionals are not on the same economic footing as typical laborers and factory workers, nor do such laborers and factory workers possess the same level of transferable skills, training and education as the members of Plaintiff’s staff, nor the same odds of acquiring alternative employment in the face of severance. To equate Plaintiff’s staff with such individuals is to defeat the inherent purpose of the Illinois Employment Security Act, meant to serve as a sort of earned welfare to those lower members of the Illinois workforce struck with temporary unemployment; assistance to the “little guy” to keep him on his feet during hard times.

This article was researched and written by Joe Needham, J.D. Please forward your thoughts and comments to Joe at jneedham@keefe-law.com.

Editor’s comment: KCA would like to take this opportunity to highlight some of the most important cases in Illinois workers’ compensation history. This will be the first installment in a three part series.

For those industry insiders who know Illinois workers’ compensation law like the back of their hands, this may be a bit of a review, but we recently updated our “Noteworthy Cases” spreadsheet and thought we would take this opportunity to point out some of the cases that have impacted Illinois over the years.

Airborne Express v. Workers’ Compensation Commission – Average weekly wage calculation doesn’t take overtime into account if it was voluntary. Note the ruling in Edward Hines Lumbar v. Industrial Commission has thus been modified to hold mandatory overtime hours are included in average weekly wage, not overtime premium; “regular and consistent” is no longer the law of Illinois. Compare the Workers’ Compensation Act that clearly excludes all overtime hours.

Beelman Trucking v. Workers’ Compensation Commission – Where amputations of two body parts would lead to statutory total and permanent weekly benefits, Petitioner can seek permanent partial disability award for additional permanency to other affected body parts in addition to the total and lifetime permanent benefits.

Cassens Transport v. Industrial Commission – It is technically impossible to reduce a wage loss differential ruling once set unless the permanent restrictions come off claimant’s medical chart.

Circuit City Stores, Inc. v. Workers’ Compensation Commission – The “Good Samaritan” doctrine applies to just about any injury, whether within the course of employment or not (including hip checking a vending machine) when the employee is injured while coming to the “aid” of co-worker. Note, if you have the right claimant lawyer, the “Good Samaritan” doctrine may apply in less-than-life-threatening situations, like wanting Doritos®.

Economy Packing Co. v. Workers’ Compensation Commission – Illegal aliens in Illinois can obtain lifetime total and permanent disability benefits because they can’t locate suitable replacement work due to their illegal status making them technically unemployable. No one has any idea whether a broken toe could lead to a total and permanent disability award if the employee becomes unemployable not due to the finger but to discovery of their illegal status—the court provided no direction to either side on the issue.

EEOC v. Sears – Not actually an Illinois case, but a recent Federal court settlement in which the EEOC made it clear it will begin to attack U.S. businesses across the country who use “auto-termination” policies that seem to violate the ADA. Essentially, this will require auto-termination policies to take ADA considerations into account, working with an injured worker who could perform duties with requested accommodation. If you don’t understand it and don’t address their concerns, we assure you the EEOC will come calling.

Fencl-Tufo Chevrolet v. Industrial Commission; Nollau Nurseries v. Industrial Commission – Treating medical records are admissible as inherently reliable when not created in anticipation of litigation. Medical expert opinions about causation or disputed litigated issues should not be admissible without agreement. Note: foundational requirements still required. This was codified in the 2005 Amendments to the Act; treating hospital records with appropriate foundation have always been admissible under Section 16.

General Tire & Rubber Company v. Industrial Commission – Decision based upon contradictory reasoning outlining mileage to medical providers is owed—this ruling is in derogation of statute and rules that have no such provision. This is the first Illinois WC decision in which our reviewing courts made a supposed legal “ruling” by claiming the decision of the IWCC was “within the facts.” We note this ruling could require Illinois employers to give all injured workers unlimited benefits if the IWCC gave them because such a ruling would always be “within the facts.”

Ghere v. Industrial Commission – Employee’s physician must provide expert medical opinions no later than forty-eight hours prior to deposition or arbitration hearing to be admissible, similar to requirement of IME physicians and applies to treating physicians. Current IWCC is not following this requirement strictly. Note: 2005 decision in Kishwaukee Community Hospital v. IWCC appears to wholly obviate or eviscerate this ruling if Petitioner’s counsel advises in writing prior to deposition that physician will generally “opine about causal connection” without providing specific opinions or basis therefore.

Grabs v. Safeway, Inc. – When employee is off work due to a work related injury, the employer may not discharge employee for refusing to return to work against their doctor’s direction solely because the employer obtains an IME opinion that the employee can return to work without restrictions. However, the employee must still prove their discharge was causally related to the assertion of rights under the Workers’ Compensation Act. As a result, the best course may be to recommend inactive status or leave of absence, forward COBRA notices and wait for the case to work itself out.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com.

Editor’s comment: For our Illinois readers who manage Illinois employees and facilities we are always stunned and amazed how many employers cannot commit to drug and alcohol-free workplaces because it means they personally can’t drink at lunch or on the job. We point out the Illinois WC system creates a whopping incentive not to have drunks or impaired folks on your premises. One accident caused by or to a drunk or impaired worker can cost literally hundreds of thousands or even millions of dollars. Our rule is anyone caught drinking alcohol or doing any legal or illegal drug which causes impairment during work hours is counseled and given the choice to elect EAP (Employee Assistance) or termination.

Please remember the Illinois WC Act and its implementation by our Commission and reviewing courts is wildly unpredictable in this state. In Paganelis v. Industrial Commission, the Supreme Court denied benefits to a driver who was .238 drunk and was seriously injured in a crash. But later rulings sometimes “open the door” by not aggressively penalizing drunks and drug addicts in the Illinois workplace—one awful IWCC ruling actually rewarded an amputee who was drunk and lost his arm but received benefits in a Commission decision finding he was a “functioning alcoholic” and therefore wasn’t injured due to his impaired state. We assure you every drunk and drug addict makes the same argument when bad things happen to them and those around them in the workplace. We assure all of our readers, your tolerance level for anyone being impaired on your work floor should be aggressive—don’t let a so-called “functioning” drunk or drug abuser put you out of business when they injure themselves or others and you have to pay them thousands in medical bills, lost time and permanency.

Drug-Free Work Week is the perfect time to launch a Drug-Free Workplace Program if your organization does not already have one. Such programs are complements to other initiatives that help protect worker safety and health. To learn more about them, visit DOL’s Working Partners Web site at http://www.dol.gov/workingpartners/. In particular, the site’s Drug-Free Workplace Advisor Program Builder offers detailed guidance on how to develop a Drug-Free Workplace Program, starting with the first step: a written policy.

If your organization already has a Drug-Free Workplace Program, Drug-Free Work Week is a logical time to ensure the program is adequate to meet current needs and to remind employees about its important role in keeping them safe on the job. One way to do this is to distribute a new copy of your drug-free workplace policy, along with a positive message about valuing health and safety, and then provide an opportunity for them to ask questions about it.

To achieve a drug-free workplace, it is critical that an organization educate its workers about the nature of alcohol and drug use and its negative impact on workplace safety and productivity. Drug-Free Work Week is a natural time to step up such efforts through training sessions, guest speakers or brown-bag lunches. Working Partners offers more information on employee training, including ready-to-use training materials. New resources available this year include Fast Facts (an informational card for employees about their role in keeping their worksite drug and alcohol free) and a series of five Tool Box Talks (brief speeches intended for delivery by foreman on construction or factory worksites).

Some observers estimate workplace substance addiction annually costs U.S. employers as much as $250 billion and substance-related deaths are equal to a jumbo jet plane crash every day. In the workers’ compensation arena substance abusers register 50% of all claims and five times more claims than average. This is based on statistics from the National Council on Compensation Insurance.

If you have thoughts, comments or questions on Drug-Free Work Week or implementing a drug and alcohol-free program, send a reply.

Editor’s comment: “Donning and doffing” refers to the minutes it takes a worker to get into and/or out of work attire. In Pirant v. U.S. Postal Service, the United States Supreme Court declined to grant certiorari to appeal a Seventh Circuit Federal Court of Appeals ruling which held an employee could not count towards the 1,250-hour minimum for Family and Medical Leave Act (FMLA) eligibility the three to five minutes she spent each workday donning and doffing her gloves, shoes, and a work shirt.

The Federal Appellate Court ruled such articles of clothing did not constitute extensive and unique protective equipment that was integral and indispensable to her principal activities as a mail handler for the United States Postal Service. The employee’s petition for certiorari asserted the Seventh Circuit’s holding conflicted with decisions of the Third and Ninth Circuit Courts of Appeals, and with the Secretary of Labor’s interpretation of the Act, as set forth in the Postal Service’s petition for rehearing by the Seventh Circuit.

The petition for rehearing, which disavowed the rationale of the Seventh Circuit’s decision, had been supported by an amicus brief from the Secretary of Labor, according to the employee’s petition for certiorari. (Case below: Even though it was turned back, we consider it amazing to see such a claim make it all the way to the highest court in the land. If you would like the location of the ruling on the web, send a reply.

Editor’s comment: We were recently asked this question by a reader and we wanted to raise it for you, our readership. One interesting fact that cannot be changed is online Westlaw® research into the number of dissents filed by the Commissioners who represent Illinois business.

If you are not sure what we mean, let us explain. If you look at the home web page of the current Commission, there are currently three panels comprised of three Commissioners. Those three panels handle administrative appeals of workers’ compensation rulings by about 33 Arbitrators in Illinois. By law, one of the three members of each panel is designated to represent the interests of Illinois labor. One of the three members is designated to represent Illinois management. One of the three members is designated by our Act to represent the “public.”

At a recent conference, our Chairman indicated there are about 2,100 pending claims on appeal before the three panels. Of those 2,100 claims, the Commissioners who hear the appeals will summarily affirm more than one-half of them. As some of the rulings are dismissed, let us guess-timate something like 600-800 of the remaining claims are going to be contested claims which the Commission will fairly and impartially rule upon. Those rulings are not handed down en masse; they are decided by the various panels in due course after careful consideration of the briefs of the parties, oral argument and consideration of the respective Arbitration transcripts and Arbitrators’ rulings.

We had one of our bird-dog researchers take a look at the Commission’s contested rulings from September 2007 to present. One striking statistic for our readers to look at it the number of times a Commissioner filed a written dissent. A dissenting Commissioner is by definition a losing Commissioner—there is no reason to write a dissent if you are on the winning side. A Commissioner on the winning side who joins in the majority opinion would be writing and then filing what is called a “concurrence” or “partial concurrence.” We are not including those joint opinions in this article.

Our research indicated all three business Commissioners combined to write 239 dissents in contested decisions from September 2007 to present. If you do the math, that is about ten defense dissents a month, every month for more than two years. That number means not only is Illinois business uniformly losing all 239 rulings, they are losing them in a fashion that causes the respective Commissioner on that panel to file a written dissent indicating to the public their legal and factual concerns about the ruling of the majority.

We are asking all of you to not look simply to this singular fact. We are asking all of you to openly advise us of your feelings about the Commission. Do you feel

1. The respective Commissioners are fair and without demonstrable bias in their rulings?
2. Do you feel the Commissioners stick to the law as it is written in “plain English?”
3. Do you feel the Commissioners openly and evenly weigh the facts before them?
4. Do you feel the Commissioners are concerned about and demonstrate their concerns about actual or perceived workers’ compensation fraud by workers?

We also ask you all one last fundamental question—should Illinois citizens be asked these questions by the Commission on a regular basis—once a year, once every four years, ever? We truly feel a democratic body should reach out to the citizens it works for and at least occasionally ask you how you feel. We repeatedly applaud the Commission’s new technological advances on the web and in keeping the status calls. We ask them to consider trumping Keefe, Campbell & Associates; take a chance and ask the folks who pay your salary and who appear before you how they feel about the place.

We appreciate your thoughts and comments. Please don’t hesitate to post them on our blog at http://www.keefe-law.com/blog/

Editor’s comment: Last week, we reported the $6.2 million levy on one of the world’s largest retailers by the Equal Employment Opportunity Commission. We feel the national and regional directors of the EEOC “held up the scalp” of the vanquished corporate human resources department for everyone to see. We feel other HR and general counsels’ departments of the hundreds of U.S. businesses across the country that employ autotermination policies need to undertake a very cautious review of their policies in light of this consent decree. Actually, this may affect any and all termination policies when it comes to dealing with folks on workers’ comp who want reasonable accommodation under ADA. While the record-high settlement doesn’t actually point to any specific provision of the ADA that was violated and isn’t a ruling from a federal or state court, it does signal the willingness of a federal bureaucracy to employ their unlimited legal budget to sue you and potentially force similar seven-figure settlements.

What is the concern of the EEOC? What started this mess? Well, we call autotermination policies a gender/sex/religion/race/sexual-orientation neutral way to terminate any employee. The simple rule is that if a given employee is off work continuously for either six months or a full year (or some other defined term) for any reason, your organization terminates them without recourse.

One thing that Sears may have done wrong comes from the pleadings. In filing a motion to dismiss, you may note the lead Plaintiff worked as an automotive service technician. He was injured when he fell while on the job in April 2001. Although the lead Plaintiff took leave to recover, his injuries arguably left him substantially impaired in his ability to perform physical tasks. According to the EEOC, within three months after his injury he sought placement in two less physically demanding positions for which he was qualified, but Sears refused to place hire him in either position. As a result, he remained on workers’ compensation leave because he was unable to return to his prior service technician job. Ultimately, his employment was terminated under Sears’ disability or worker’s compensation leave policy that inflexibly mandated the termination of employees on leave for more than one year.

In this factual scenario, it appears clear claimant sought the benefit of ADA—he was arguably a qualified individual with a disability and required reasonable accommodation. From these reports, it appears Sears refused to accommodate while he was off so as to allow him to return to work and get off TTD. It is unclear whether initial accommodation would have allowed him to return to full work at a later time. As a result of the refusal to accommodate, Plaintiff was then left to “dangle” and although he may have received TTD, in the process, he lost his job.

Assuming this scenario is accurate, we are very confident in advising all of our readers such a factual scenario is a clear red flag under this approach when the ADA is going to be enforced by the current administration of the EEOC. If you have an employee who is out on TTD and asks for reasonable accommodation to allow them to return to work consistent with ADA, you had better address the request in a meaningful fashion. If you leave them on TTD until your autotermination period passes and fire them, you are directly in the crosshairs over the gun barrels of the EEOC and don’t forget what happened to Sears.

But there are lots of other situations we all need to consider and we will be writing the EEOC for clarification and report any reply. We are wondering what to do with the panoply of situations in which workers are off work for extended periods and what to counsel you about the numerous factual situations that may arise. A fundamental question not answered by the consent decree is patent—can an employer ever terminate a worker who is on TTD? Does the work injury equal infinite or at least indefinite job security to the extent the injured worker could always later claim the need for reasonable accommodation to allow them to get back into your workforce?

We also ask the obvious questions:

• Do you always have to fire the replacement worker when you return the injured worker to his/her job with accommodation?
• In the alternative, is the injured worker on TTD entitled to priority in being rehired to allow for reasonable accommodation without having to fire someone?

Other pertinent questions that arise include what an HR department should do when and if:

1. The injured worker is off for the entire autotermination period and doesn’t request accommodation until after they have been terminated;
2. The injured worker who is fully recovered to MMI during the autotermination period and then aggravates the injury at a later time, again losing substantial time from work;
3. A union employer is more than willing to accommodate an employee who is ready to return to work before or after the autotermination period has run but the applicable union or their interpretation of their union rules won’t allow it;
4. An employee is off for multiple reasons, some of which are related to injury and some of which are wholly personal and unrelated to the work injury.

One “solution” to this problem is to maintain the status quo, sort of. First, autoterminate everyone consistent with your current policy that isn’t suffering from a claimed work injury. Second, for those with pending workers’ compensation claims, if they ask for accommodation to return to work prior to the running of the autotermination period, actively address the request and keep careful records of both the request and your decision(s) on reasonable accommodation. Third, for injured workers with pending workers’ compensation claims who don’t request accommodation during the autotermination period, when your autotermination period is over, don’t terminate; put them on “inactive” or leave of absence status, pending further action. If such injured workers later request reasonable accommodation due to their work injuries, consider the request, confer with your defense counsel and take whatever action necessary to avoid running afoul of the ADA. If they don’t seek reasonable accommodation, at some distant point, take them off the inactive or leave of absence status.

The other concept EEOC v. Sears, Roebuck will greatly encourage is the coincidental general release/resignation. We are already seeing many companies that will not enter into lump sum settlement agreements unless and until the injured worker coincidentally resigns at the time they depart your organization. To present, we feel such documents have not been exhaustively challenged in the courts by the EEOC or other similar state agencies and we hope they leave it alone and do not start raising challenges. If you need our sample coincidental release/resignation, send a reply.

We are certain this article and the consent decree will create intricate issues for all of us moving forward. As we outline, we are hoping the EEOC has some answers or guidelines on these issues and any further inquiries our readers would like to send along. Please forward your thoughts and comments and questions for the federal regulators.