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

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

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

Please spread the word:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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