Synopsis: Our New Illinois Medical Marijuana Laws May Be The Best Reason to Make Your Workplace(s) Alcohol and Drug-Free.

Editor’s comment: We have had so many readers and clients ask, we want to provide clear thoughts for HR, Safety and Personnel managers in dealing with this new challenge. On January 1, 2014, the Compassionate Use of Medical Cannabis Pilot Program Act (CUMCPPA) went into effect in our state. Basically, the Act provides if you have a listed medical condition and want to use marijuana for it and if your doctor approves, you can smoke weed basically to your heart’s content. In lots of industries, we consider that a dramatic rise in risk. We are confident underwriters across the U.S. who are evaluating projected insurance premium costs are certain to start asking what you are doing about this new and unprecedented change to your workplace. We aren’t sure why more carriers aren’t mandating alcohol/drug-free programs.

There are new administrative rules that have been posted about this new law—they have four months to put them into place. The IL Departments of Revenue, Agriculture and Financial and Professional Regulation posted draft rules online to address how dispensaries and cultivation centers will be regulated and taxed. The proposed rules include provisions for how cultivation centers must package and label the marijuana. They also say that 21 of the 60 dispensaries required under the law would be outside of the Chicago metropolitan area. The Illinois Department of Public Health previously posted rules for patients, including requirements for fingerprinting, background checks and a $150-a-year photo ID. The new state law with these combined regulations present some of the strictest standards in the nation. They can be viewed online: http://mcpp.illinois.gov

On a common sense note, we ask everyone why medical marijuana isn’t in pill form? Does it make any medical sense for patients to be smoking it? What is all the Grateful-Dead-like excitement about growing weed, wrapping it in bags, rolling it with papers and smoking doobies? A Canadian study from last fall demonstrated a strong link between smoking marijuana and lung cancer. We are aware there are other research studies that don’t support the lung cancer conclusion but the nature of the research wasn’t scientifically significant in some of them. Either way, why take a chance? Is the romance of rolling numbers that strong? We feel if patients and doctors feel the therapeutic benefits of marijuana are necessary and ameliorative for some medical conditions, we consider it nonsensical to have patients smoke what they could simply take much more safely as a pill with a glass of water.

But we digress. One strong aspect of IL medical marijuana laws are clear—if you have a drug and alcohol-free workplace program, you don’t have to allow your workers to fire up their roaches before or during work. The language of the CUMCPPA says (in pertinent part):

Section 50. Employment; Employer liability.

(a) Nothing in this Act shall prohibit an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis.

(b) Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner.

(c) Nothing in this Act shall limit an employer from disciplining a registered qualifying patient for violating a workplace drug policy.

(e) Nothing in this Act shall be construed to create a defense for a third party who fails a drug test.

This language was designed to protect the right of Illinois employers to strongly block the use of medical marijuana at your place of business. In fact, we feel it strongly encourages all employers who haven’t started alcohol and drug-free workplace programs to get going with them. In fact, as attorneys, we cannot see any downside to getting a program in place. To the contrary, if you don’t get an alcohol and drug-free workplace program moving, you are taking the chance that your workers will randomly fire up cannabis cigarettes and arguably become less safe to themselves, their co-workers and the public.

Please also note there is a derivative value in using the new Medical Marijuana law/rules to get moving into the Alcohol and Drug-Free Workplace protocols. It will make your whole workforce safer! If you spend the extra time and a little money needed to start watching your workforce and get everyone clean and sober all day, you are going to have less accidents, near-misses and better mod rates. Remember, the cost of just one accident caused by an impaired employee can devastate a small business.

Although not required by the Occupational Safety and Health Administration (OSHA), drug-free workplace programs help ensure safe and healthy workplaces and add value to America’s businesses and communities. Such programs help reduce occupational injuries and illnesses and send a clear signal that employers care about their employees. A comprehensive drug-free workplace program generally includes five components:

1. A written alcohol and drug-free program with dissemination to your workforce.

2. Supervisor/Manager training;

3. Employee education

4. Employee assistance or EAPs; and

5. Drug testing.

1. Written Program with Dissemination to Your Workforce

Defense team at KCB&A has a written alcohol and drug-free workplace policy for your consideration and use. If you want a draft copy, send a reply. That said, your organization’s program should be tailored to meet your specific needs and we are happy to assist, as you feel necessary. All effective programs have traits in common, including why the policy is being implemented, a clear description of prohibited behaviors, and an explanation of the consequences for violating the program requirements.

Disseminating the program to your workforce is crucial for it to be successful. We suggest spending the money on handbooks, workplace signage and repetitive/regular discussions of the concept at employee meetings.

2. Supervisor/Manager Training

After finalizing your program, your organization should train those individuals who are going to be on the front lines and enforce it; your supervisors and managers. Training should insure your enforcers understand the alcohol and drug-free workplace program including ways to recognize employees with small to large impairments or who have performance problems that may relate to banned substance abuse. You also have to train your supervisors/managers on how to refer line employees to alcohol or drug assistance or for drug testing as needed. Supervisors/managers should be trained not to diagnose substance abuse problems or provide counseling to employees who may such issues—lots of issues can erupt if that path is taken. Make sure your supervisors/managers know their role.

3. Employee Education

A drug and alcohol education program provides your employees with information they need to cooperate with and benefit from a drug-free workplace program. Effective programs provide company-specific information, such as the details of the company’s policy, as well as general information about the nature of addiction; its impact on work performance, health and personal life; and help available for related problems.

4. Employee Assistance Programs or EAPs

A critical component of a drug-free workplace is providing assistance to employees who have problems with alcohol and other drugs. Employee Assistance Programs (EAPs) are worksite programs that provide problem identification, assessment and referral services for employees. They are effective vehicles for addressing poor performance that may stem from an employee’s personal problems, including substance abuse.

5. Drug Testing

Employers decide to drug test for a variety of reasons, such as blocking or identifying drug use, as well as providing evidence for needed intervention, referral to treatment and/or disciplinary action. We assure our readers the decision of who and when to test is where litigation typically arising. Before deciding for protocols on testing, employers must consider certain factors, such as who will be tested, which drugs will be tested for and when and how tests will be conducted. We strongly suggest you consult with the defense team at KCB&A about your testing practices and procedures.

All in all, we don’t see a downside. Please don’t let your business be at risk for dangers that come from now-legalized marijuana users along with alcohol and other drug abuse. Start and stick with a program and stay even with your competition. We appreciate your thoughts and comments. Please post them on our award-winning blog.

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Synopsis: KCB&A’s most recent Illinois Appellate Court win came in last week!!! Petitioner’s Unexplained Fall Not Compensable as Petitioner Not Subjected to a Risk Greater than the Public.

Editor’s Comment: Risk managers and clients across the state are dealing with fall-down claims due to the difficult winter in the Midwest U.S. We feel some claims adjusters pull the trigger toward compensability much to quickly—if you have the right facts, fall-down claims can be won.

The facts in Dixon v. Rush University Medical Center (No. 1-13-1350, March 10, 2014) involve an accounting clerk who, when returning from a cigarette break, fell in the main entrance of the hospital. Petitioner testified she, “slipped on the rug and the rug slipped straight from under me.” She presented for ER treatment and although she returned to work a subsequent recommendation was made for a lumbar fusion. The matter proceeded to hearing and the Arbitrator awarded benefits along with the prospective surgery. We appealed to the Commission and all three Commissioners denied the claim finding no increased hazard and no risk greater than the general public. Surprisingly, the Cook County Circuit Court reversed and we appealed the matter to the Appellate Court, Workers’ Compensation Division.

The Appellate Court majority cited case law discussing employee falls: To determine whether a claimant's injury arose out of her employment, the risk to which she was exposed must first be categorized. Baldwin.

Risks to employees fall into three groups:

Risks associated with the employment;
Risks personal to the employee, such as idiopathic falls; and
Neutral risks that have no particular employment or personal characteristics. Id.

Petitioner here acknowledged the risk of falling while walking, as in this case, is considered a neutral risk. Injuries resulting from a neutral risk generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to the risk to a greater degree than the general public. Metropolitan Water Reclamation District.

Evidence an employee is exposed to the neutral risk of falling to a greater degree than the general public may be either qualitative, such as when the fall results from a defect in the employer's premises or when some other aspect of the employment contributes to the risk, or quantitative, such as when the employee is exposed to a common risk more frequently than the general public. In order for an injury caused by an unexplained fall to arise out of the employment, a Petitioner must present evidence which supports a reasonable inference the fall stemmed from a risk related to the employment.

Here, there was no evidence presented indicating any aspect of Petitioner’s employment contributed to the risk. The Commission held, based on Petitioner’s testimony and the medical records, it was unknown whether the rug slipped, if Petitioner slipped on the rug, or if she tripped on the rug. There was sufficient evidence to support this determination.

It was next discussed by the Appellate Court whether the injury resulted from a condition of the employer’s premises. Petitioner claimed the rug itself was somehow a “hazard,” but we countered arguing there was no evidence in the record indicating this. The Appellate Court agreed with usand acknowledged there was nothing in the record to indicate the rug was either defective or hazardous. As such, there was a reasonable basis for the Workers’ Compensation Commission to infer the condition of the premises was not the cause of Petitioner’s injury.

Finally, the Court examined whether Petitioner was subjected to a greater quantitative risk than the general public because of her employment. Petitioner offered no evidence of the frequency with which she took the path where the fall occurred. The Court cited the First Cash Financialcase for the statement of law indicating by itself, the act of walking across a floor at an employer’s place of business does not expose an employee to a risk greater than that faced by the general public. There was nothing in the record here to distinguish Petitioner’s risk in traversing the entrance from the risk to the general public. As the Commission’s decision holding Petitioner failed to prove she sustained accidental injuries arising out of and in the course of her employment was within the manifest weight of the evidence, the Circuit Court order was reversed and the Commission denial reinstated.

As you can see, fall down cases are very fact specific and merely because a worker falls at work, or while working, and gets injured does not mean the case is compensable under the Act. If you are handling such a case feel free to contact us to discuss the best way to move forward and how to position the case for denial.

This case was successfully defended by and article researched/written by Matthew Ignoffo, J.D., M.S.C.C. Please feel free to contact Matt at mignoffo@keefe-law.com.

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Synopsis: Statutory Interest on IL WC Medical Bills, Part II.

Editor’s comment: We have had lots of inquiries and concerns voiced about the article from the KCB&A Updatelast week indicating there is a well-known medical provider now suing insurance carriers and TPA’s in Circuit Court for recovery of statutory interest on IL WC medical bills. We wanted to provide our readers and clients a few additional thoughts we received from all of you!

· First, we note many of the Circuit Court claims for 12% annual statutory interest are being filed after the underlying WC claims have been settled with IWCC approval or Arbitration/Commission decisions have gone final. The theory being employed in bringing such claims is the medical provider is a “third-party beneficiary” of the language of the IL WC Act. We don’t consider that approach to be well-founded from a legal perspective—we don’t feel a Circuit Court can or should retroactively relitigate WC issues. For example, it doesn’t make sense to us for a Circuit Court to add a post-decision penalty for late payment of medical bills under Section 19(l) of the IL WC Act. Either way, we are all going to have to wait and see if the concept stands the test of courtroom battling at the Daley Center and beyond.

The main reason for our criticism of this approach is exemplified in the first lawsuit where the IWCC awarded $270,857.60 for medical expenses. We don’t know much about the underlying claim but it is our view if the Commission awarded that specific $270K amount, the employer/insurance carrier/TPA would owe that amount. If the employee wasn’t asking for and didn’t get a ruling allowing statutory interest, such interest would not be due. We don’t feel the Circuit Court has the ability to act as a “super-Commission” to add new benefits not awarded in the administrative agency.

· This highlights the second concern about the IL WC statutory interest anomaly—in many occasions, there are substantial but very real disputes about compensability. If you read the great article by Matt Ignoffo above, you may note he was handling a claim with a dispute over fusion surgery. If that surgery had proceeded under the employee’s group health coverage, such care might have had a cost of between $50,000 to $150,000. The fully disputed accident in the claim was from January 2011 and it wasn’t decided during more than three years of hearings and appeals. In our view, the bills wouldn’t have been “due” until the final ruling and mandate of the Appellate Court, Workers’ Compensation Division issued and thereby became final. In our reasoned academic view, statutory interest would also have to wait to start once the same ruling to reach finality.

If there were no disputes and the employer/insurance carrier/TPA accepted the claim, certified medical care and received properly coded bills, we would strongly agree statutory interest would be due after the passage of 30 days and would continue to run. To get that statutory interest payment, we feel collection efforts by a medical provider should start during the pendency of the IL WC claim. In moving forward in this fashion, the Arbitrator or Commission panel could adjudicate the issues fairly for all parties.

· We urge our clients and readers in the medical industry to fine-tune your WC medical billing collection procedures. We feel you need to develop the computer capability of not simply sending unpaid bills with proper coding on a regular basis—you should also start adding the dates of prior submission and the added statutory interest to which you are entitled under the IL WC Act. If you also send copies of the updated bills with added interest to Petitioner’s counsels, they can easily ask for the Arbitrators or IWCC panel to add statutory interest to the award. If they don’t have that documentation, we consider it very challenging to first ask for statutory interest after settling or getting a final ruling.

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

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Synopsis: One Day to the IL Gubernatorial Primary—We Join with the Chicago Tribune to Endorse Bruce Rauner in the Illinois Republican Primary.

Editor’s comment: Our goal as a news source is to remain bipartisan. Therefore, if you are a Democrat, vote for incumbent Governor Pat Quinn in the Democratic side of the tomorrow’s primary.

On the Republican side, we remain happy to see the Chicago Tribune endorse Mr. Rauner. We join with them in doing so. Please note a few fairly important things:

Illinois taxes and highway tolls have been recently raised to record levels;
Our state’s unemployment is wildly high; we are the 3d from the bottom of all the United States—there is no question people, jobs and businesses are leaving;
Our state government pension debt is over $100B—this comes from what we call “lifetime pay” where our legislators, judges and most government workers only contribute a small fraction of the money needed to pay them 80% of their pay with 3% annual increases for the rest of their lives—this phenomenon means taxpayers continue to pay salaries of workers who don’t work for the state any longer and it is being hidden or shown to voters only in the most confusing fashion by our elected leaders and the media;
Our state is effectively “bankrupt” as we haven’t timely paid bills in years and are always several billion behind;
IL Senate President John Cullerton has openly confirmed the only path their administration has to bring government back into economic shape is to dramatically raise taxes and tolls even further;
Illinois has 88 state agencies, many of which are admittedly redundant and duplicative; actually most of IL government is redundant/duplicative, as IL politicians like to control lots of jobs whether we need them or not;
There are literally hundreds of ways our state government could provide the same or better services for less money but would require strong management we aren’t getting—if you want some of our thoughts on simple cost-cutting measures, send a reply.

Bruce Rauner is an amazing and successful business person.

He is the first gubernatorial candidate in years who can’t be bribed and doesn’t owe any group political “tokens” or pay-backs;
He will pick the best candidates for important state positions and work to select the best vendors to supply state agencies;

· He will address the “lifetime pay” issue in a fashion the other career politicians cannot and will not;

He will make strong decisions to save taxpayers money and cut waste and government redundancy.

If you like the status quo, vote for one of the other Republicans who all have been in our dysfunctional state government for years without any answers or plan. If you think we need a change, vote for Bruce Rauner today or at your polling place on March 18, 2014.

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Synopsis: Happy St. Paddy’s Day to our clients, friends and readers.

Editor’s comment: Please drive and party safe out there folks!

KCBA Blog

3-17-14; IL Medical Marijuana Law May Be The Best Reason to Go Alcohol and Drug-Free; Matt Ignoffo, JD Fights/Wins a Fall-Down Ruling; IL WC Statutory Interest Redux; Happy St. Paddy's and much more