Keefe, Campbell & Associates, LLC

Editor’s comment: We will always remember Illinois State Chamber President Doug Whitley telling us he visited the Appellate Court, Workers’ Comp Division. Doug was advised by the court’s staff there was very little to worry about or controversial at the court. The staff advised that the appellate justices knew the rules and case law and quietly adhered to them. Well, we agree the justices unquestionably know the rules and case law; as citizens and academicians we have to ascertain and reach our own conclusions as to whether they closely adhere to them.

Some court observers feel the workers’ comp appellate rulings of the last decade have been decidedly claimant-friendly. As we have advised our readers over and over, in the last decade, there has been a single appellate ruling favorable to Illinois business–Airborne Express v. IWCC. Please note the reviewing courts at the Circuit, Appellate and Supreme Court levels issue 20-50 rulings a year—if you do the math, one pro-business ruling in a decade against 200-500 for labor is way less than one per cent. And when you consider the view of some court observers, the reviewing courts appear to be wildly expanding coverage and stripping away even the most traditional and logical defenses. Illinois WC costs are going up and jobs are leaving or not coming back. With respect to the august members of our reviewing courts, it is our reasoned academic view just about every other ruling “limbos” over, under and around the English language, the statute and the rules to mold the law in the image and likeness of what the Petitioner’s/Plaintiff’s bar wants–compensability of any and every claim. We point out to everyone, the legislation hasn’t truly changed—the change in workers’ comp law or rules comes from the reviewing courts at every level.

Sisbro–a simple legal rule or is it?

By way of background, earlier in this decade our current Illinois Supreme Court issued two workers’ compensation rulings that very clearly and cogently outlined a single principle of law and appellate procedure in the workers’ compensation arena. In landmark cases named Sisbro and Twice Over Clean, our highest court reversed the lower Appellate Court, Workers’ Compensation Division not once but twice. Please note both rulings resulted in very detailed appellate rulings resulting in denial of work comp benefits being summarily reversed. When benefits were provided due to reversal, substantial monies were awarded to claimants.

At the time, the workers’ comp community felt the members of the Commission were very liberal. Most folks on both sides felt this new Supreme Court rule that you “can’t change the IWCC ruling on the facts” would preserve expected liberal rulings at every level of appeal. To implement this patent and simple legal position, the Supreme Court clearly stated in the rulings mentioned above the Appellate Court and all lower Circuit Courts were not to overrule the Workers’ Compensation Commission’s determination on the facts of the case. They demanded strict adherence to the concept the Commission’s factual determinations could not be overruled as being “against the manifest weight of the evidence.” Basically, if there was even minimal support in the record for the Commission’s factual determination in a decision, the reviewing courts had to affirm.

So, everyone in our industry felt a factual determination by the Commission was effectively final. We have seen numerous petitions for sanctions for frivolous appeals from members of the claimant bar, if a claim was being appealed by an employer solely on the facts. Case after case followed with the Appellate and Circuit Courts routinely affirming Commission decisions if the only issues were factual in nature.

Sounds pretty simple; so what happened?

Let’s look at this new controversial ruling that you can’t find on the web and/or read unless you ask us for a copy. In ABF Freight Systems v. The Workers’ Compensation Commission 01-08-3074WC, claimant was a truck driver with a relatively routine back strain. He underwent appropriate medical care. He actually was very close to being completely done and was to be MMI and returned to work very shortly. Then while riding his motorcycle, claimant was in a traffic accident and thrown from his bike to the pavement at speeds he admitted were about 50 miles per hour. He went from having an almost healed back strain to needing six days in the hospital and an implanted pain pump. Medical bills from the motorcycle crash are welll into six figures and continue today, years after the event. Following the non-work-related accident, claimant will have severe and lasting disability and medical attention for the rest of his life, not due to anything that happened at work.

An intervening cause is an event which occurs between the original work-related injury and the final or permanent result. Thus, from an academic and legal perspective, the “causal connection” between the original work injury and new medical care, lost time and permanent disability is broken by the intervening and superseding cause. An intervening cause represents a separate act or omission that breaks the direct connection between the injured worker’s initial injury and a second injury or loss and relieves the employer of liability for the sequalae of the second injury or loss. If you research it, the most common intervening and superseding causes are uncontrollable natural forces and negligent human conduct. In this set of facts, the intervening cause(s) was claimant’s decision to ride a motorcycle and the person who caused this second severe accident away from work.

So, what happened with the litigation? Well, claimant’s counsel made the claim Petitioner’s post-motorcycle accident condition of ill-being and all medical care and disability was related to work. Their theory was claiment hadn’t “completely recovered” from the earlier back strain so everything that happened in the obviously and patently non-work-related motorcycle crash was the responsibility of the employer. In defending the claim, the obvious defense was the long-time and well-settled concept of the motorcycle accident being an “intervening and superseding” event that cut off all liability for the employer.

Intervening and superseding event—sounds complex but actually a simple common sense approach

When one teaches workers’ compensation law and practice, as we do, law students are taught if a claimant has a bruise on the arm due to a work-related injury and then breaks the arm in twenty places in a non-work-related event, it is impossible for a hearing officer to peer into a crystal ball to provide any benefits for the prior work-related contusion. We feel that is simple common sense. In such a situation, the hearing officers outline claimant has to take care of his or herself for the sweeping non-work-related occurrence. We feel this concept summarizes a very basic and straightforward workers’ compensation legal principle in what used to be all 50 of the United States and the four Federal workers’ compensation statutes and rules. We hate to report Illinois has quietly dropped this defense in this unprecedented ruling in ABF Freight Systems.

What happened at the Commission level in ABF Freight Systems? Well, it is our opinion as Commission observers they did their job and followed existing law. The Commission carefully considered all the facts and applied the law and denied benefits. They ruled claimant’s current condition of ill-being following the motorcycle crash was due solely to that accident. The Commission was not inclined to look into a crystal ball to try to cipher out any remaining effect of the work-related strain; claimant’s condition had changed so dramatically due to being thrown to the pavement at high speed, medical care and lost time was now ruled to be solely due to that occurrence, since claimant’s condition was measurably worse after the motorcycle crash. Please note their ruling followed the law but their made clear and concise factual rulings that any veteran legal observer might feel would be locked in on appeal.

So, as the guard at the door to the Wizard of Oz told young Dorothy–Not So Fast!! Not So Fast!!!

Please remember we are in Illinois when we write this. On appeal, it is our opinion the reviewing courts ended, eradicated and stripped away the defense of “intervening and superseding” occurrence. They ruled that since there were still some sequalae, no matter how minimal, of the work-related back strain present, anything that happened to claimant thereafter was now the employer’s responsibility. Therefore the employer was on the hook for six-figure medical bills, lost time and maybe seven-figure permanency; all due to a patently and unquestionably non-work-related event. If claimant is off work and treats for ten years and then dies from the effects of this motorcycle accident, several million in benefits will be owed in a fashion no other workers’ compensation system on this planet would award benefits.

So you may ask this rhetorical question–do you mean to tell us if a claimant has a sore toe and hasn’t completed medical care and while off work is hit by a semi-tractor-trailer at high speed, the employer is responsible for the death? The answer, if you follow this new and unprecedented rule is now yes! If claimant has a work-related sunburn and gets killed by an alien death ray, if you follow this ruling, it is all compensable. We assure you we are not trying to be silly–in real life, this claimant had a minor strain and was already released to light duty; he was very soon to be released to return to work. He obviously felt well enough to ride a motorcycle. He fell off it at high speed and was taken by ambulance to an emergency room and then hospitalized for six days! How can anyone find the sequalae of that accident related to work? We remain adamant that it is inconceivable an Illinois employer should have to pay a dime for what happened to this unfortunate individual as a result of the motorcycle crash—it had nothing to do with his work.

Ignoring Sisbro and more Appellate Secrecy

What we feel is even more galling to the hearts and minds of Illinois business are two things. One, the Commission made a ruling on the facts. Not more than a couple years ago and as more fully outlined above, our Supreme Court promulgated the Sisbro concept to everyone in the Illinois workers’ compensation community confirming factual rulings are locked in and can’t be changed by the reviewing courts. Oops, that appears it may only apply when it means benefits are awarded. If benefits are denied, it may now appear there may be a Super Rule that trumps other rules–it may be okay to reverse on the facts if it means claimants get money. We cannot divine any other reason this Commission ruling could have been reversed.

Second, the Appellate Court did two things in handling this matter that frustrates and sometimes infuriates many workers’ compensation practitioners. First, they “non-published” their very detailed, thoroughly researched and critically important ruling, effectively limiting the pool of readers to the parties and a few Commission insiders. We point out their decision to “non-publish” the ruling hides their reasoning from the public and more important, does not allow anyone to be guided by their mind-set on critically important issues. We always point out such secret rulings could result in a claimant not knowing the law and dropping an appeal they might otherwise win; conversely, it may also have the impact of an employer fighting an appeal to then find out about the clandestine determination of the court and have to tell their clients the cost of getting an appeal bond along with the legal fees and time incurred in the appeal may have been wasted. We also are unaware of any other Appellate Court in the country that keeps so many rulings secret.

You may ask us how we can apparently violate the Court’s ruling by writing this article when their decision is “non-published”–well, they have advised the State Bar Ass’n they don’t mind anyone publishing non-published rulings so until they change that paradoxical position, we will publish. We also hope to see the day that any and every decision by the Appellate Courts reach the new technology that allows their rulings to rapidly hit the web. If you know how to do it, you can go to the Illinois Courts website and listen to the audio recordings of oral arguments in this case before the Court. But you can’t read their ruling!! There is no conceivable reason to hide their decision-making processes from the taxpayers and citizens who pay for and need their guidance in litigation.

As President Obama has said on many occasions, “Sunlight is a great disinfectant.” We point out Illinois is the home state for our Commander-in-Chief and wonder how he would feel to learn so many major workers’ compensation appellate rulings are kept out of the sunlight and under a proverbial basket.

Second, they refused to certify the ruling for consideration by the very court that imposed the “manifest weight of the evidence” rule–the Appellate Court members were asked to certify the claim for review by our highest court and would not do so. Please note they don’t have to tell any of us what their thinking is on non-publishing or not certifying decisions—we point out in Sisbro and Twice Over Clean, the members of the Court published and certified two rulings where benefits were denied by their members and the fact of certification allowed the Supreme Court to then reverse and award benefits. In this case, where they reversed a denial and awarded benefits, however, they wouldn’t allow the Supreme Court to even consider their award.

So what do we do about this? Does anyone in our reviewing courts care about their effect on jobs in this economy?

We don’t feel this ruling is going to have a massive impact on Illinois business. It only applies to someone who has two or more accidents which you have to hope doesn’t happen too often. The ruling is more irritating than monstrous in its implications. But we have watched the courts expand the coverage of the Act and strip away defense after defense and at some point, a thousand little cuts to Illinois business will certainly kill jobs and any hope of economic recovery in this horribly run state. We also point out the job of underwriting many Illinois WC claims is comical to consider—you can’t tell if they will actually follow a law or rule that has been in place for a century!! The impact of pro-Plaintiff rulings combines to have a deleterious effect on jobs in this state. Here are a few:

Beelman Trucking where double weekly PPD benefits were awarded to someone already being paid lifetime total and permanent disability benefits;

Cassens Transportation where someone receiving wage loss differential benefits from their employer can only have them lowered if permanent restrictions magically change, even if they later earn millions;

Interstate Scaffolding where the Supreme Court ruled you have to pay TTD to an employee who commits a crime and gets fired on light duty;

Leung where a flight attendant who hurt herself putting on her coat was provided benefits as a “traveling employee”;

Potenzo where a truck driver was attacked by an unknown assailant for reasons completely unrelated to his work and provided benefits as a “traveling employee”; and

ABF Freight Systems where the defense of intervening and superseding event may have ended

These rulings will also certainly cause state and local taxes to rise as governments struggle with increased WC costs.

Well, forewarned is forearmed. We urge you to push return to work and MMI in all claims—the faster they are back, the better your chances of denying non-work-related injuries. Note the concept of “intervening and superseding event” is going to be a quizzical defense and you shouldn’t closely rely on it. If someone being treated for and off work for a work-related event has a non-work-related setback, keep managing the claim because they may hold you liable for it later. Consider litigation avoidance techniques—send a reply if you want our protocols.

And remember folks, it is now May 2010–the next statewide elections are looming in the first week of November. At present, Republican Bill Brady holds a decided lead in the polls over current Governor Pat Quinn. We are very confident support for Bill Brady is support for workers’ comp reform. Consider joining the Illinois State Chamber and follow the lead of its solid president Doug Whitley in seeking reform of this system and our Courts. Consider joining Doug’s Employment Law Council and think-tank. Consider donating money to support the cause of reasonable workers’ comp reform that reasonably and fairly takes care of injured workers in Illinois but doesn’t reward them with millions of dollars for falling off motorcycles.

If you want a copy of the ABF Freight Systems decision, send a reply. We appreciate your thoughts and comments.

Editor’s comment: In Cramer v Viacom Outdoor 2009 WL 3807341 (Ill.Indus.Com’n), Commission Panel B upheld denial of benefits determined by the Arbitrator based upon an injury which occurred at an employer sponsored charity bowling event. The pertinent facts noted the event occurred during the afternoon hours of what was otherwise a normal business day. The employees including Petitioner worked the earlier part of that day in the office up until 1:30 PM when they departed for the event at a local bowling alley. The employees were paid regular wages for the time they attended the event and if they didn’t attend, the office manager testified they would have been paid regular wages but would have been required to attend to regular office duties.

While bowling, Petitioner sustained a comminuted fracture of the articular surface of left distal radius and a comminuted fracture of the left humeral neck along with a tear of the left supraspinatus. She underwent an open reduction with internal fixation of hardware to repair the radius fractures. As a result she has lost significant range of motion in both the wrist and shoulder joints.

Even though Petitioner testified she felt “pressured” to attend the event the claim was denied. We note she did not testify that she was ordered or assigned to attend the event, as the statute would require for injuries to be compensable. The employer’s witness who was their Human Resources manager testified employees were not ordered or assigned to attend the event. While language in notice of event strongly encouraged everyone to participate, it provided employees not wishing to participate will be required to work their normal day. Employees were asked to advise whether or not they would be participating. Each participant was required to make a minimum $15.00 donation. However, the company promised to pay for the bowling and shoe rental.

The basis for the denial is the exclusionary language found in Section 11 of the Act. The relevant portion of Section 11 reads as follows: “Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.”

Another key fact was an attendance record showing ten of the 36 employee staff (27%) did not sign up to attend the event, although they did make a donation and there was no evidence presented that any of the employees who did not attend the event were disciplined or discriminated against in any way by the company.

This case is a good example of an Arbitrator who heard all of the evidence and determined all appeared to be credible, but noted the language of the Act and the overwhelming facts in the matter did not support compensability under the Illinois WC Act. Respondents can also take away the lesson that good investigation and presentation of evidence still is an effective method of defending claims with actual defenses.

If you are planning a recreational outing for your workers now or in the future, we have a release form you can use to insure accidents occurring during the event are not compensable. If you would like a copy of the form, send a reply. This article was suggested by a knowledgeable reader and we thank her for the tip. It was then researched and written by Shawn R. Biery, JD. Please forward any comments or requests to sbiery@keefe-law.com.

Editor’s comment: We note with chagrin the plethora of articles now on the web outlining growing concerns with head and brain injuries in American professional football. This sport of humans clashing heads together at high impact is now subject to a growing wave of workers’ compensation claims for dementia, lack of coordination, loss of mind and memory. Recent studies have shown numerous football players have suffered head injuries as a result of multiple concussions with resulting clear signs of chronic traumatic encephalitis or CTE. It has been alleged chronic traumatic encephalitis results in early dementia, onset of Alzheimer’s disease and numerous other demonstrable brain disorders. Studies indicate the average high school, college and professional football player sustains over 1,000 measurable concussions in every game. Please note in Illinois, a claimant does not have to typically demonstrate a single injury—sadly, this state is generally to wildly liberal about “repetitive trauma” that is defined by a modern football game and/or practice.

Recently prominent workers’ compensation claims have been filed by several former professional players against the National Football League in California. We assume many other players are considering signing up for the largesse. Every single former player and their counsel point out how awful it is that football teams are so valuable and prosperous while day-to-day players are supposedly left out in the cold with little or no compensation. Every claimant appears to be demanding monster settlements for lifetime medical coverage for any head or brain malady almost as a constitutional entitlement. Observers note this mind-set and statutory scheme makes California a fertile and prosperous jurisdiction for football-based workers compensation claims. Several other states, such as Illinois and New Jersey may be right behind the “Left Coast” in fostering similar brain injury claims. And once professionals start raking in cash, how long will it take for high school and college players to start filing negligence claims against their former schools?

The problem we see with all of it is football is already a very expensive game and is something of an orthopedic surgeon’s fantasy. Modern football players are constantly under treatment and may be disabled as much as or more than they are healthy—most professional football teams have rosters of about 50 players but actually need 100 or more players to get through a complete season. The medical bills for an average NFL or Arena football season have to be well into the tens of millions already. If you add to that cost provision for lifetime medical coverage for every brain dysfunction any football player ever suffers, you are almost certainly going to bankrupt what is our current national past-time.

Please let us know your thoughts or post them on our award-winning blog.

Editor’s comment: As a follow-up to last week’s article on “repackaged” prescription drugs, we were asked by a reader to direct all of you to this answer on the Illinois web site regarding how to best pay for drugs under the Illinois workers’ compensation system. The reader found it in the Frequently Asked Questions section on our Illinois Workers’ Compensation Commission’s informative website.

Moments earlier, the reader received a letter purportedly from a pharmacy biller’s “counsel” stating they had been in touch with someone at the Illinois Work Compensation Commission who claimed they were told by an unnamed official what to do in processing pharmaceutical bills. The letter claimed their “counsel” had been told the repackaged drugs for which they were billing astronomical rates should and must be paid for at 76%.

If you are not aware of this new phenomenon, the relatively new concept of “repackaged” drugs occurs when medical providers buy wholesale prescriptions for what you can get them for at a typical pharmacy and then “re-price” them at an exorbitant markup. The provider would then simply add the much higher drug cost to overall medical billing and hope the medical bill payer would simply approve or discount marginally, creating an enormous profit.

The problem with that approach is it is in direct opposition to what the Commission’s web site says! The Commission website provides:

How should pharmacy drugs be paid?

The fee schedule does not apply to pharmacy prescriptions. Prescriptions should be paid at the usual and customary rate. The law and rules make no mention of what the usual and customary rate is. No formula was adopted. If there is a dispute, the parties would take the issue before an arbitrator.

Our reader advised there are some general HCPCS codes on the fee schedule (e.g., J3490: unclassified drug) that show a fee or POC76 (i.e., pay 76% of charge). Some providers try to use these codes for prescription bills and claim payment should be at that fee or at 76% of charge. Our reader asserts this view is incorrect and should be rejected. We agree that drug vendors should not improperly implement HCPCS codes to side-step the fact Illinois does not have a WC pharmacy fee schedule.

We have forwarded the letter and the concerns we have about “repackaged drugs” to our Illinois Attorney General’s office for their consideration. We assure everyone of our view the practice is simply and patently gouging when it comes to a fair price for prescription medications for Illinois employers and injured workers.

We thank our reader for her thoughts and recommendations. We would love to forward any response you might have.

Editor’s comment: One of our national clients advised of a recent trend—drug compounding and repackaging to make the simple pharmaceutical process much more expensive. In follow-up to our first article, we note in recent years, compound drugs and drug repackaging have gone hand-in-glove as ways in which WC claims handlers often have no idea what they are paying in handling Illinois workers’ compensation claims. As we have advised on numerous occasions, it is amazing Illinois has a medical fee schedule without a prescription fee schedule. This change won’t happen until Illinois business demands it.

Compounded drugs are hand-made rather than mass-produced, and supposedly tailored to the needs of individual patients. These practices are mainly regulated by the states instead of the federal Food and Drug Administration. The disparities resulting from 50 sets of rules and levels of technical and inspection prowess shouldn’t be allowed to continue. Repackaged drugs are prescription or over-the-counter drugs taken from initial drug producers and repackaged and repriced, usually by physician/clinic dispensers. The cost is from two times higher to twelve times higher. In one study, repackaged drugs accounted for less than a third of all prescriptions but over half of all dollars paid. The concept is especially troubling when one considers the overwhelming majority of the top 20 drugs are generic.

As has been the case for the last several years, the average prescription cost of “compound drugs” is well over the national average. A growing percentage of the providers dispensing compound drugs submit via paper, and many payers have had limited capabilities with adjudicating these bills at the appropriate or allowable rates. While the number of the compound drug paper bills is currently a small percentage of most national payers’ overall prescription volume, the dollars associated with these transactions and the potential savings can be high.

With many states’ workers’ compensation laws, the rules vary regarding how a payer can adjudicate prescription charges. For example, California’s billing regulations require the providers (pharmacies, compound drug companies, physicians, etc.) to submit a detailed list of the individual ingredients in each compound prescription. In addition to significantly overpaying, payers encounter other drug treatment and billing-related shortcomings and challenges when managing compound drugs.

Some of the issues include:

Double billing–compound drugs are not required to have nor do they use standard national drug code (NDC) numbers, and therefore it is difficult to identify when multiple fills for the same prescription are being provided. In addition, some times the compound pharmacy companies also use different third-party biller names, further complicating a payer’s ability to identify this type of situation.

Drug interactions–since individual ingredients of the compound drug are not captured as part of the prescription transaction within the claimant/patient profile, there is a high risk for potential drug interactions (adverse effects) or overdoses when other drugs in a patient’s overall drug regimen are being combined with these compound prescriptions. In addition, the lack of NDC-level detail does not allow for drug utilization edits to occur on these transactions. The only way to solve this issue is to record and adjudicate each individual ingredient within the same pharmacy management system, using the same patient profile and applying the same clinical review edits and rules.

Overbilling–occasionally compound drugs will include the use of higher priced brand name drug ingredients regardless of whether there is a generic alternative available. The lack of NDC detail within a pharmacy management system will not identify these types of issues. There is also a frequency of overbilling compared to the allowable compound production time billing rate.

Therapeutic duplication with different dosage forms–dispensing the same drug in oral and topical form and avoiding the appropriate drug utilization edits since they aren’t using standard NDC numbers.

On the closely related repackaging issue, it is difficult for WC payers to receive accurate prices for repackaged medications, which, by definition, mean a pharmaceutical product is removed from the original container with an original NDC and put into a new container with new quantities, therefore requiring a new NDC, with a new repackaging company label and price for the medication. By its nature, the process can result in inaccurate and overpriced medications. Some states other than Illinois have been attempting to help payers manage the process better, after they have begun to understand the cost-control issues.

We hope to see such prescription and over-the-counter drug abuses end and urge our administrators to get involved to help Illinois business counterattack abuse. We appreciate your thoughts and comments.

Editor’s Comment: Last week, we wrote about taking out the injured worker in the WC medical bill paying environment. We received the thought from a reader—we considered it a brilliant and simple idea. He indicated one of the biggest problems with Illinois WC claims is with the billing from medical providers. We pointed out in most states, the medical provider is required by law to directly bill the insurance company/TPA and not send the bills to the injured worker or the employer. The medical provider is also required to send the medical records with any and all bills. Failure to do so means their bill won’t be repriced/paid until the records are received by the insurance company/TPA. The reader noted many of insureds hold onto bills, fail to get them coded or bills get lost and/or misplaced with personnel changes.

Well, duh, guess what—the Illinois Act requires it!!! Please note:

Section 8.2 (d)

When a patient notifies a provider that the treatment, procedure, or service being sought is for a work-related illness or injury and furnishes the provider the name and address of the responsible employer, the provider shall bill the employer directly. The employer shall make payment and providers shall submit bills and records in accordance with the provisions of this Section. All payments to providers for treatment provided pursuant to this Act shall be made within 60 days of receipt of the bills as long as the claim contains substantially all the required data elements necessary to adjudicate the bills.

If you didn’t know about this, please start to use it. We urge all of you great folks in claims to start telling/writing/demanding all Illinois doctors, hospitals and other healthcare givers follow the law and send the bills only to you or your insurance carrier/TPA. Take the injured worker out of the WC claims system. Avoid disputes and unnecessary litigation involving your injured workers with accepted claims when medical bills need to be coded or medical documentation is needed—the injured worker couldn’t get it for you if they tried; your communication should be to the healthcare giver.

If you need further clarification on this one, please send a reply.

Editor’s Comment: Better to be forewarned and hopefully forearmed. There are now fourteen states that allow use of medical marijuana within their borders. Any analysis of such drug use in the workplace should mirror restrictions on any legal drug that affects health and safety of the worker and those around them.

Companies in states that have legalized medical marijuana clearly face a dilemma when deciding how to handle employees who use the drug. Many of the 14 states that have legalized medical marijuana have not addressed the issue of how employees who use the drug are protected in their workplaces. As a result, some companies have fired employees who they know are legally allowed to use medical marijuana in an effort to avoid charges of negligence that could be made in the event that such employees injure a customer.

This touchy issue garnered increased attention after a big box retailer decided to fire an employee at their location in Michigan. The employee indicated he used medical marijuana to help him deal with pain caused by cancer and an inoperable brain tumor. Although the employee had a medical marijuana card and prescription for the drug from his doctor and claimed he never went to work under the influence of the drug, the employer fired him because it was concerned about the health and safety of its customers, vendors and employees.

The State of Michigan’s medical marijuana law apparently prohibits companies from discriminating against individuals with medical marijuana cards. Therefore, Michigan’s Department of Civil Rights is investigating the case to see if the decision to terminate violated the state’s disabilities protection laws.

Our recommendation is to have a clear policy about all drug use. First, ban any illegal drugs and enforce a drug and alcohol-free work site rule. If you need help with implementing such rules, send a reply.

Next, as to legal drug use in the workplace, at a minimum, require open disclosure as an advertised and promulgated personnel policy. You can’t deal with issues you aren’t aware of. Any employee or other staff member at any level who is taking a drug or medication, whether or not prescribed by the staff member’s physician or other healthcare giver, which may adversely affect that employee’s ability to perform work in a safe or productive manner, should be required to report such use of medication to his or her supervisor. This mandate should include any and all drugs which are known or advertised as possibly affecting judgment, coordination, or any of the senses, including those which may cause drowsiness or dizziness.

The supervisor, acting in conjunction with your management, must then determine whether the employee can remain at work and whether any work restrictions will be necessary. As part of due diligence, consider contacting an OccDoc to give you their thoughts for your complete file before taking any action. If you need solid OccHealth doctors who can assist in such situations, send a reply. If you need sample personnel policy provisions on these issues, send a reply.

Your goal is to have your defense case-in-chief in place long prior to any complaint being raised. We appreciate your thoughts and comments.

Editor’s Comment: As we advised, we are licensed by and officers of the courts of this state. Our goal is to provide an academic review of the more controversial decisions we have seen come from the current WC reviewing court members. For representatives of Illinois business, please take a look and “draw your own contusions” from the actual rulings.

We are trying to focus on how the law may be “shaped” by our reviewing courts in comparison to the legislation. One of the more controversial areas which demonstrate this legal phenomenon is the inclusion of overtime in the average weekly wage in this state. If you read the Act, the first sentence of Section 10 patently and simply states

The compensation shall be computed on the basis of the “Average weekly wage” which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52;

820 ILCS 305/10 (Emphasis added).

Your editor assures you this statutory language was routinely interpreted for at least seventy years to mean all overtime wages—any and all overtime wages were excluded from the calculation of the average weekly wage for years and years. We assure everyone it was well-settled law and the issue never made it to the reviewing courts until someone in the Plaintiff/Petitioner bar conjured up the matrix we next analyze.

In 1990, the Illinois Appellate Court issued a ruling in Edward Hines Lumber Co. v. Industrial Commission which sent the whole concept tumbling sideways. What the reviewing court did for the first time in Illinois history in the Edward Hines Lumber ruling in a difficult-to-define circumstance was allow the overtime hour into the average weekly without including any concomitant overtime premium. They found “regular and consistent overtime” to be included in the average weekly wage at the straight hourly rate. Everyone continues to argue over what “regular and consistent” might mean.

In 2007, the Illinois Appellate Court reversed the Edward Hines Lumber ruling, sort of. In Airborne Express v. Workers’ Compensation Commission, the Court’s members looked at a situation in which a truck driver was actively bidding on shifts and using seniority to get a job that unquestionably required overtime. The Court’s members, in their wisdom, said this scenario would not allow for the inclusion of the overtime hour in the average weekly wage—they effectively ruled the overtime hour had to be mandated by the employer and not something the employee opted for. The Court continued to “split the baby in half” by only including overtime hour and not the overtime premium pay.

As we indicated in 2007 and continue to advise our clients, readers and law students today, it is our academic view neither ruling “follows” the simple language of the Act. Section 10 is cited for you above and says nothing of “regular and consistent” or “mandatory” or anything like it. We also point out there is no legislative history to the Workers’ Compensation Act so you have to look at the simple “English language” version of the Act to determine what the drafters intended. With deference to the members of the Appellate Court, Workers’ Compensation Division, we feel they found or “created” a rule in Edward Hines Lumber and then modified the rule they initially created without divining in either instance what we feel is the obvious intention of the legislature—to exclude all overtime pay whether mandatory, regular and consistent, straight overtime hour or premium overtime pay.

The next area of controversy is the continued judicial trend demonstrated by intervention of our highest Court into the workers’ compensation arena. We point out the Illinois Supreme Court was initially the venue where all rulings from Circuit Courts were heard—the Supreme Court disliked hearing such reviews so much, they created the Appellate Court, Workers’ Compensation Division for the express purpose of avoiding such matters. Well, the current court appears to have changed that tune, as we outline below.

It does not take a rocket scientist to note, in the last decade, the current members of our Illinois Supreme Court have accepted and considered any number of Illinois Appellate Court, Workers’ Compensation Division rulings and uniformly reversed any and all of them to insure benefits are always awarded on the side of Illinois labor.

The most painful ruling is the most recent. In Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, our Supreme Court considered an appeal where claimant had a back problem and was working on light duty. He spray-painted graffiti on the employer’s shelving and was fired for it. He then made a claim for TTD after being fired. The Appellate Court, Workers’ Compensation Division issued a solid ruling confirming claimant wasn’t entitled to workers’ comp benefits after being fired for spraying graffiti and not due to his disability or medical care or anything related to the injury.

The dispute was over $5,000. We assure every one of our readers the chances of the Illinois Supreme Court accepting a dispute over that amount of money is infinitesimal—but not in workers’ compensation if it involves the denial of benefits. To the chagrin of just about every defense lawyer, observer and business person in Illinois, our Supreme Court took the case and reversed the Appellate Court, Workers’ Compensation Division. We feel the ruling remains very controversial and is not academically supported by many moderate Plaintiff/Petitioner attorneys across the state.

And most important, our highest Court implemented a new Illinois legal concept for determining when a worker is or is not entitled to temporary total disability—maximum medical improvement or MMI. Our problem with using that concept is the three words don’t appear as a phrase or defined term in the Illinois Workers’ Compensation Act. We are constantly asked by clients and readers how to define it. We are sorry to say there were no legislative hearings on the topic and your guess is therefore as good as ours or anyone else’s.

We also point out hundreds of workers all across this state return to work long before their doctors find them to be MMI. We truly don’t feel it makes common sense to say a worker who has returned to full or light duty is simultaneously somehow entitled to TTD. Whether you like it or not, that is the ruling of our highest court and we will continue to struggle with it.

The prior ruling by the Illinois Supreme Court we feel was controversial was the Beelman Trucking ruling in which the Appellate Court would not allow a statutory total and permanent claimant to get any benefits from his employer other than lifetime total and permanent weekly benefits. We assure our readers the perception of most WC regulars on both sides was the highest benefit an injured worker could receive was total and permanent disability benefits for life. But you have to remember, this is Illinois. In this case, the Supreme Court accepted certiorari and for the first time in Illinois history allowed double weekly benefits for both total and permanent disability and loss of use of specific body parts.

Other controversial Supreme Court workers’ comp rulings in the last decade include Sisbro where a truck driver who stepped out of truck was denied benefits because his foot was so degenerated from a non-work-related medical condition any activity of daily life might cause it to fracture. The Appellate Court, Workers’ Compensation wrote an excellent ruling that denied benefits based on longstanding Illinois law. The Supreme Court reversed their ruling on the facts.

And, as we reported last week, in Twice Over Clean, our highest court accepted a denial on a heart attack case where claimant’s own doctor said claimant’s heart was so bad he might have had an attack brushing his teeth. The Appellate Court again followed longstanding Illinois law and denied benefits—the Supreme Court took the case and reversed to insure benefits were awarded.

In summary, over the last decade, the only appellate ruling we feel favored Illinois business is Airborne Express that we analyze above. In our view, on case after reported case, the Appellate Court, Workers’ Compensation Division either rules for the interests of Illinois labor or the Illinois Supreme Court accepts the case and has uniformly reversed every denial. We open this Update article for rebuttal—if you or any reader feels there is a pro-business ruling out there in the last decade that we have missed, please send it along and we will be happy to publish it and correct this statement.

Please note there are lots of folks who want things to run in favor of Illinois labor and we want to make it clear there is nothing underhanded or implicitly “wrong” with the rulings by our reviewing courts. We just don’t think their rulings provide much grist for crucial issues like the jobs atmosphere or economic recovery, unless you feel economic recovery comes from paying lots and lots of money to injured workers who then spend it and thereby boost the economy. It is our reasoned view any balance on Illinois WC legal rulings has tilted very strongly to the labor side and we hope the fall elections may bring more equilibrium to the WC legal system in this state.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog; for information on how to do, see below.

Editor’s comment: Well, Amy Masters was “acting chairman” and obviously didn’t have the political pull or clout to make the permanent job. On Friday, November 21, 2008, we first reported former-Governor Blagojevich named Ms. Masters as Acting Chairman of the IWCC, effective that day. Chairman Masters first joined the Commission in 2003. She initially served as the Secretary of the Commission and then was Operations Manager for two years. She previously served as Chief of Staff and Judicial Manager. Before joining the Commission, she managed public relations for the Chicago Bar Association and the Laborers’ International Union-Midwest Region. She holds a B.S. degree in Political Science from Southern Illinois University but was not a licensed attorney.

In 2008, the Illinois Workers’ Compensation Advisory Board recommended the appointment of Ms. Masters as Acting Chairman. We just looked at their most recent meeting on January 21, 2010 and note there is no agenda to consider the appointment or resignation of any one.

Maybe the strangest thing about this article is our understanding—and we caution our readers that everything that happens at the Commission is from the “outside, looking in” because they almost never tell you what they are doing until after it is done, is Amy J. Masters is to be congratulated, applauded, saluted and whatever good thing you want to say about someone who took the Commission’s website and basically made or had someone who worked for her make every major improvement that you can find on the site.

In 2002 and before, the Commission’s website was primarily a place on the web with an eentsy, tweentsy bit of WC information. After Ms. Masters souped it up, you can now find lots and lots of functional and important things for the industry, like the

Status of claims;
The Arbitrator assigned with status dates;
The names and contact information of the lawyers on each side;
Decisions;
Appeals;
Dismissals;
Insurance coverage information;
Commission news;
The Act and Rules in two formats;
Forms (which still may be sort of a work in progress); and
Lots of answers to lots more questions.

We are now told by numerous reliable sources, Mitchell R. Weisz of Crystal Lake will be appointed to replace Ms. Masters, with the announcement to come as early as tomorrow. While we will take his new tenure with an open mind and wish him all the best in a challenging position, we are unhappy to report Mr. Weisz was a personal injury lawyer on the Plaintiff side. He has ties to any number of personal injury and workers’ compensation Plaintiff lawyers across northern Illinois and used to refer cases to them.

We point out three of the last four Chairman have been Plaintiff/Petitioner lawyers. All of them have been selected without notice to the public or any chance for the press, including the editor of this Update to ask any questions about their background, focus or goals as Chairman. Mr. Weisz will take over an agency which collects and spends about $20,000,000 of Illinois’ business money and gives out about $3 billion in benefits every year.

We certainly hope the selection process for choosing the Chairman is opened up to public scrutiny some day. We appreciate your thoughts and comments or you can post them on our award-winning blog.

Editor’s comment: We applaud the Commission for recently reversing an Arbitrator’s ruling finding a very drunk employee to have suffered a compensable workplace injury despite admittedly drinking for four hours before returning to work and having a BAC three times the legal limit. When will this state abandon the functioning alcoholic standard and find these roustabout injuries to be non-work related?

In Powell v. International Crown, 99 W.C. 064102, No. 09 I.W.C.C. 0992 (October 2009), Petitioner, a journeyman iron-worker, admittedly went out drinking with his co-workers a little before lunch as the wind was making it difficult to perform the job duties. While at lunch, Petitioner admitted to drinking at least four beers and one “blue shot” but could actually not recall how many drinks he had exactly. Petitioner admitted to drinking for four hours at the bar. Petitioner testified he had no memory of anything after leaving the bar until waking up in the hospital.

During his blackout, three of the four man crew apparently returned to the worksite in order to secure the gear for the next day. Upon arrival at the job site, the foreman decided to continue working, and Petitioner climbed onto the roof where the work was being performed. Petitioner apparently worked for 10 minutes and then fell off the roof. Upon arrival at the emergency room, Petitioner was unable to recall the traumatic event or to provide a past medical history due to his intoxication. Petitioner’s blood alcohol level tested almost an hour after leaving the bar remained at .248, over three times the legal limit. Petitioner had final diagnoses of vertebrae and rib fractures and alcohol abuse. Petitioner later underwent thoracic spine surgery.

Petitioner attempted to bring up the “functioning alcoholic” argument at trial, with the testimony of his medical expert evidencing “a longstanding history of alcohol consumption by Petitioner, beginning at the age of 21 with daily drinking after work and continuing to present day, where Petitioner reported average weekly alcohol consumption of at least two cases of beer.” Petitioner’s expert was unable to definitively opine he was alcoholic, but he opined Petitioner “clearly had a prodigious tolerance for alcohol and … was able to perform a variety of cognitive and motor functions without alteration, lack of coordination or confused speech…” The expert went on to opine Petitioner was not impaired from performing his job functions at the time of the injury.

We note although the Arbitrator found Petitioner to have fallen off the roof due to essentially passing out from alcohol intoxication, he relied on the above findings as well as the indication that Petitioner was under the direction of his foreman a the time of injury to award the injuries as compensable.

The Commission in its decision concisely stated current Illinois law, stating as follows:

…where the evidence of intoxication is significant to the point that the court can hold, as a matter of law, that the injury arose out of the drunken condition and not out of employment, recovery under the Workers’ Compensation Act can be denied.” District 141, International Association of Machinists & Aerospace Workers v. Industrial Commission (1980), 79 Ill.2d 544, 39 Ill.Dec. 196, 404 N.E.2d 787). Although the ultimate conclusion must appear as a matter of law for the intoxication defense to succeed, such a decision is dependent on a number of factual determinations, such as the degree of the employee’s intoxication, his capacity to continue carrying out his employment and the cause of the accident. Paganelis v. Industrial Commission (1989), 132 Ill.2d 468, 139 Ill.Dec. 477, 548 N.E.2d 1033; see also Lefens v. Industrial Commission (1918), 286 Ill. 32, 121 N.E. 182 (the condition of an employee as to his intoxication is a question of fact)).

The Commission reviewed the testimony de novo and found clear evidence alcohol was the sole cause of Petitioner’s injuries and reversed the Arbitrator, but part of their ruling was based on the discrepancy between the reported outward appearance of Petitioner at the time of the injury by his co-workers in contrast to his outward appearance just minutes later by emergency responders and police officers. We applaud the Commission for getting this one right in the end, but we have to ask the question – if an employee is clearly three times the legal limit, literally halfway to the point of death due to alcohol consumption (achievable at BAC levels of .5), do we need to continue to rely on the “functioning alcoholic” standard? Do we really need to look into whether a person smelled of alcohol or was slurring their speech when we have proof of BAC?

Whether someone looks like the can handle their liquor doesn’t mean the law should differentiate based on appearances. Ask the mothers of children killed by drunk drivers whether they care if the driver looked sober.

This article was writing by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Please feel free to post comments on our award winning blog at www.keefe-law.com/blog.