Tag Archives: workers’ compensation

Opioids in the Workplace

Contributed by Michael Wong, November 3, 2017

One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.

J0337282Opioid use in the United States has started to take on a whole new form and is now commonly referred to as the opioid epidemic. Illinois has not escaped the opioid epidemic; in 2016 there were 2,278 drug overdose deaths of which over 80% (1,826) were opioid related. The number of opioid related deaths in 2016 was an increase of over 30% of the opioid related deaths in 2015 and an increase of over 70% of the number of opioid related deaths in 2013.

In looking at these numbers, it is important to understand that these are only the deaths – not the actual number of individuals using or abusing opioids. In a recent study by the National Safety Counsel, over one in three Illinois residents (35%) reported being impacted by opioid/heroin use by knowing someone (self, family/friend, co-worker/co-workers’ family, or neighbor/neighbor’s family) that started using opioids/heroin, became addicted to opioid/heroin, survived an opioid/heroin overdose or had died from an opioid/heroin overdose. Indeed, one issue with the opioid epidemic is that the gateway to opioid use does not always come from illegal activities, but can start out with a legitimate legal prescription. When there is a valid use for a prescription drug, an individual can feel like they are not doing anything wrong and their use can quickly turn into a slippery slope of addiction, activities that negatively impacts their work performance and potentially illegal activities. As a result of this, the opioid epidemic does not discriminate and can be found across all demographics, industries and positions.

One of the concerns with opioids for employers is that it is more difficult to tell if someone is under the influence or using opioids or heroin than other more traditional drugs. For instance, opioids and heroin do not come with symptoms or indicators that are easy to perceive like with alcohol – a smell, shaking hands and movements, and behavior changes; or with marijuana – a smell, red eyes, delayed reaction time, anxiety, and lack of coordination. With opioids, it is often difficult for employers to make the connection between an employee appearing groggy, sleepy or forgetful in the workplace to being linked to drug use. Indeed, what employers will typically see, if anything at all, is a gradual decline in an employee’s attendance and performance, until the employee loses their job or stops coming to work altogether.

The traditional tool of employers to identify and prevent drug and alcohol use within the workplace is drug testing. Pre-hire drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where the individual is not yet an opioid user. Reasonable suspicion drug testing can also be effective, but first requires reasonable suspicion of opioid use which can be difficult to identify.

So what does this leave? First and foremost, employers should re-evaluate their drug policies and testing procedures and understand the potential legal implications. For example, drug testing can be modified to test for legal prescription medications, but in order to avoid a violation of the ADA the applicant or employee must be able to provide an explanation for the positive drug test, such as a prescribed medication. Additionally, employers must realize that even if the employee is using prescription medication, there may be an underlying medical condition that they need to be aware of to avoid any kind of disability discrimination claim.

Next, employers should consider questioning its health care benefit carrier and workers’ compensation carrier on what actions they are taking to address the opioid epidemic and collaborating with them on any specialized programs or options for addressing. This can include learning about whether the carrier has programs for the conservative use and risk of prescription opioids, an opioid management program and/or a prescription benefit management program, which can help in preventing prescription medication abuse and identify the abuse of prescription medications. In doing so, employers should also consider investing in an employee assistance program (EAP), which can help employees avoid or address addiction.

Another investment that can pay dividends is management and employee education. Better training and education for not only management, but also employees regarding the impacts of opioids, how to identify opioid use and how to address opioid abuse. Management training can help make management more aware of how to identify potential issues before they occur and get employees help before it escalates to more serious problems. This includes not only taking into consideration the symptoms of opioid and other drug use, but also recognizing changes in how employees are acting, their performance, their attendance, any recent injuries they have had and any other issues that could indicate drug abuse. Employee training can help employees understand the danger of opioids, how the use of legal use of prescription opioids can lead to addiction, and what steps can be taken to seek assistance. Of course, any training should be tailored to include information regarding the Company’s policies, drug testing, benefit programs and reassurances regarding the Company’s commitment to providing confidential and accessible help and treatment.

Finally, one thing to remember is that despite the high numbers of deaths in 2016 in Illinois, Illinois is still behind many states in its exposure to the opioid epidemic. Indeed, in some places manufacturing employers have found using pre-hiring drug testing was not effective. The reason for this is it significantly increased the number of applicants they have had to go through in order to hire for a position or was making it near impossible to fill their staffing needs due to applicants not returning after learning there was drug testing or applicants consistently failing the drug test.

 

Another Appellate Court Decision Creates New Challenges for Employers Trying to Limit Big Workers’ Compensation Awards

Contributed by Les Johnson

The Illinois Appellate Court’s latest decision could make defending cases where an injured worker has permanent restrictions more challenging and costly. It increases the importance of co-opting with a trusted workers’ compensation and employment attorney earlier in the overall process.

However, the same decision exemplifies why disputing certain cases can still yield good results if done properly. Over the years and at an increasing rate, we hear insured’s and claims professionals wondering aloud if there is a point to litigating or denying and compromising questionable workers’ compensation cases. This case provides hope.

In Lenhart v The Illinois Workers Compensation Commission (USF Holland), 2015 I App (3d) 130743 WC, the third district sent a case back to the commission for a determination on wage differential, even though the claimant did not make an election to come within that provision of the WCA at the time of arbitration, instead asking for permanent and total disability. A company typically faces different litigation strategy (and exposure) decisions when a claimant seeks a wage differential award.  Vocational rehabilitation and job placement to mitigate a potentially long-lasting and expensive wage loss award come into play.  Before Lenhart, defense counsel could arguably rely upon the claimant’s need to “elect” to come within the wage differential scenario. Essentially, this decision eliminates the informal “safe harbor” in which defense could focus on permanent total disability issues (for example: odd-lot, job search, employability) and not automatically have to seriously consider the costly prospect of vocational rehabilitation and job placement (while paying maintenance). Before Lenhart, the court previously held that if a claimant fails to present evidence regarding his entitlement to a wage differential award, then he implicitly waives his right to such an award.

While this presents new challenges, the same decision illustrates that there is still a positive cost-benefit to disputing a claim when you have obtained evidence that the claimant is exaggerating the subjective complaints to the treating physician.  The claimant had convinced his treating medical providers that he was extremely disabled and sought permanent total disability at the IWCC.  Surveillance showed otherwise and the commission found that much of the medical opinion testimony that the claimant relied on to meet his burden was based on his own subjective reporting of his capabilities to his medical providers. The commission found the opinion testimony of a physician to be “unreliable,” and found it significant that after the claimant’s treating psychiatrist viewed some of the surveillance video, he opined that the claimant appeared to be more mobile in the video than he was in his office. This doctor also noted that the claimant engaged in social interaction more than he reported being able to do.

What Does This Mean?

  • Assess the wage differential early, particularly when making employment separation decisions and coordinate your workers’ compensation defense with the firm’s labor and employment counsel.
  • Avoid surprises leaving you ill-prepared to defend on a last minute shift to wage differential claim/exposure by assessing it before the day of trial.  It’s possible to obtain a needed trial continuance if you have prior written confirmation from the claimant attorney that wage differential is not at issue.
  • Get good surveillance, provide it to the treating physician and remember that such contact typically requires permission from the claimant or attorney to avoid the risk of barred/excluded evidence/opinions. Continue to seek out anecdotal information about an injured worker’s home activities from co-workers, etc… that might reveal any exaggeration of subjective complaints.
  • Anticipate job performance issues, obtain legal advice from workers’ compensation and employment counsel, aggressively confront exposure with either voluntary job separation or providing restricted duty, early vocational placement activity.
  • After confirming exposure early on with job separation, consider avoiding costs of long term temporary /maintenance benefits and vocational expert costs with settlement or trial.

Remember, it is a constant battle requiring a pre-emptive approach combining workers’ compensation and employment law focuses, but it’s possible to achieve the most cost-efficient and risk-limiting results through proper steps.

“I Wanted to Fire Him Long Before the Workers’ Compensation Injury”

Contributed by Les Johnson

We often hear the above statement when providing advice on workers’ compensation and employment law to clients and prospective clients.   The focus then always involves exposure for workers’ compensation retaliatory discharge lawsuits.  The litigation costs and risks of paying the former employee for wrongful discharge warrant obtaining legal advice. Plaintiff attorneys confirm to me that the burden of proving such a case is still a challenge to them.

Notably, an Illinois appellate court has just reduced the incentive to such litigation for plaintiffs in Dale v South Central Illinois Mass Transit District.  The court refused to allow recovery for lost wages following alleged retaliatory discharge when the employee recovered some of the disputed lost wages in a workers’ compensation settlement.  The employee argued that the employer fired him because he could not work. He could not work because of the disputed workers’ compensation injury and the employer’s denial of treatment, which arguably would have facilitated a return to work.  The court rejected that argument thus providing some precedent for an employer to dispute a workers’ compensation claim and deny benefits without concern about the lost wages stemming from the denial, serving as a basis for a retaliatory discharge judgment.

Generally, to prove retaliatory discharge for filing a workers’ compensation claim, the plaintiff must show that he or she was an employee before the injury, that he or she exercised rights granted by the state’s workers’ compensation law , and that he or she was discharged which was causally related to his or her asserting a claim under the law.

The most litigated aspect in these cases is the causation element which requires the plaintiff to affirmatively show that the discharge was primarily in retaliation for his exercise of a protected (workers’ compensation) right. The evidence of the employer’s motive is varied but there are valid reasons (“non-pretextual”) courts recognize for discharging the employee.  These include absenteeism, physical inability to perform the job, legitimate RIFs, and poor job performance. Typically all of these valid reasons for discharge are documented to varying degrees and affect the strength of a legal defense if a claim arises, so legal advice is necessarily fact-specific.   Obviously, when the employer has documented issues prior to an injury or illness being reported or claimed by the employee, the stronger the defense in a retaliation case.

What’s the business advice here?

Each situation has its own set of facts warranting careful legal advice while not giving up on the ability to run your business affairs.   Employers need to protect themselves and the best defense is to ensure management appropriately, consistently and in real time confronts employee issues.  Too often employers say “I wish I had documented the employee’s poor performance before the injury.”  Also, employers must consider that if they terminate an employee who has reported a work-related injury or illness, the exposure for compensation can increase substantially.

With the current state of workers’ compensation retaliatory discharge law, it is still possible to make solid business decisions that could result in terminating an employee who may have an open workers’ compensation claim or who has reported an injury, but it’s highly advisable to get legal help in navigating the potential landmines in doing so.

WORKERS’ COMPENSATION UPDATE: Compensability in IL Expanded to Cover Certain Personal & Neutral Risks

Contributed by Anita Johnson

In a recent workers’ compensation case, the personal and neutral risk defenses have been seriously eroded via an appellate court created exception based on the number of times an employee is exposed to a neutral risk (no greater risk than the general public/no defect) with employer knowledge of the personal condition.

In the case of Village of Villa Park, a community service officer suffered from a right knee condition related to a prior non-work injury (fall on ice at his vacation home).  Due to the injury suffered in that accident, the petitioner was scheduled for surgery, at the time of the work incident.  He continued to work his regular duties which were clerical in nature and conducted on the main floor of the building.  These occasioned him to use a normal stairway open to the general public to the lower level of the building, which contained locker rooms, a briefing room, a lunch area and a shooting range.

Before his shift, he would descend the stairway to the locker room to change into his uniform.  He would go to lunch, acquire rain gear or other equipment from the lower level during the day.  At a minimum, he would traverse the stairs six times per day.  The stairs were without defect and consisted of ten steps to a landing and an additional ten steps to ground level.  At the time of the accident, he was returning to the lower level locker room, when his knee gave out after three steps, causing him to fall seven stairs to the landing below.  He injured his back and right knee.  A denial of the right knee injury was not presented to the appellate court.

The appellate court noted the two types of risks involved in this case: risk personal to the employee and neutral risk.  The weak knee is a personal risk.  The stairs are a neutral or common risk.  The court found six times per day use was sufficient to expose the employee to a “common risk” more frequently than that to which the general public was exposed.  The risk was increased on a quantitative basis because he was “continually forced to use the staircase” by his employer for his personal comfort and for work-related activities.    The court also noted that the employer knew of the prior knee injury but placed him in a position of an increased risk based on a quantitative analysis.  The risk was no longer neutral because of the frequency (repetitiveness) with which the claimant was required to traverse the stairs with his known weak knee.

This appears to create a new exception to the general rule of non-compensability for personal risk in an area of neutral risk where the employer has knowledge of the claimant’s pre-existing condition or weakness.   Of course, this not only expands the compensability of fall down cases, but brings into question where (how many times per day) is the quantitative line drawn and what action should be taken when the employer has “knowledge” of the pre-existing condition or weakness.   Apparently, judicial activism on the part of the appellate courts to expand compensability is alive and well.

A Win for Trial Lawyers: A Blow to Illinois Employers

Contributed by Anita Johnson

SB 3287 was signed by Governor Quinn yesterday, June 5, 2014. This legislation effectively overturns the prior (2012) Appellate Court decision in Mockbee and Mockbee v. Humphrey Manlift Company, Inc. and R. Harris Electric, Inc., 973 N.E.2d 376, 362 Ill.Dec. 276.  It eliminates the workers’ compensation exclusive remedy/immunity enjoyed by service companies that provide safety consulting services unless those companies are wholly-owned by the employer, insurance broker or the insurer. Erosion of the exclusive remedy provision always creates more litigation and higher costs. The need for removing this protection only for certain safety consulting companies is unknown but again it will be a problem for smaller to mid-sized employers which typically cannot afford or need a full-time safety professional on their staff to address safety issues.  Many employers use consulting firms, at varying degrees, which provide expertise to help keep their operations in compliance with OSHA standards and limit their workers’ compensation exposure to employee injury. SB 3287 will only make it more difficult for employers to maintain safe workplaces.   In addition, these necessary and valuable consulting businesses may be forced out of business by increased insurance costs of their own in light of increased legal exposures.  One more double hit on small business and poor public policy.

Termination for Refusing to Take Workers’ Comp. Drug Test Found Not Retaliatory

Contributed by Noah A. Frank

Recently, the Federal Seventh Circuit Court of Appeals (Illinois, Wisconsin, and Indiana) affirmed summary judgment for the employer in a Workers’ Compensation retaliation claim. Phillips v. Continental Tire The Americas, LLC, — F.3d —, 2014 WL 572339 (Feb. 14, 2014).  Employer Continental Tires (“Continental”) had a written substance abuse policy which required drug testing for several enumerated reasons, including initiation of a workers’ compensation claim.  The policy further provided that an employee’s refusal to be tested was grounds for immediate suspension pending termination.

Twenty-two year veteran employee Jeff Phillips presented to Continental’s health services to report numbing fingers and to initiate a workers’ compensation claim.  Phillips refused to be drug tested because he felt it was not necessary to initiate his claim.  Phillips was terminated, though he ultimately received workers’ compensation benefits.

The Seventh Circuit held that a workers’ compensation claimant must affirmatively show that an adverse employment action was causally related to seeking of rights protected under the Illinois Workers’ Compensation Act, and not merely that a discharge was connected the filing of a claim. Here Phillips failed to show the nexus between his protected rights and termination because:

  • Continental had in place (in advance) a written substance abuse policy;
  • Continental consistently enforced the written substance abuse policy;
  • Continental discharged other employees who failed to submit to drug testing under the policy;
  • Phillips testified at his deposition that he (i) was terminated for failing to submit to drug testing, (ii) had no evidence or information that there was a different reason for his termination, and (iii) believed he would still be employed had he submitted to drug testing; and
  • Other Continental employees (including Phillips previously) had initiated workers’ compensation claims and received benefits without being discharged.

Best Practices:

This case shows the importance of maintaining and enforcing written employment policies – including work rules and employment handbooks.  Employers will want to be able to demonstrate that policies are administered evenly, especially when the result is an adverse employment action such as termination.  Best practices include:

(1)    Create, implement, and update your substance abuse and drug testing policies: consider the impact of medical marijuana under the Compassionate Care Act (eff, 1/1/2014) and whether you should implement zero tolerance policies;

(2)    Consistently and evenly enforce the substance abuse policy (and all other employment policies);

(3)    In union settings, get the buy-in of labor for a proactively safe work environment;

(4)    When discharging or otherwise disciplining employees for violation of a company policy, be clear on the basis – do not apologize or add other reasons;

(5)    Demonstrate that similarly situated employees who complied with the legitimate employment policy were not adversely impacted (e.g., workers’ compensation claimants who submitted to a drug test received benefits under the Act and were not subjected to employment discipline so long as they tested clean); and

(6)    Maintain state-mandated workers’ compensation insurance, and confirm with the carrier whose responsibility it is to initiate and pay for substance testing – be sure to share the test results with each other to the extent necessary and permissible.

Illinois Supreme Court Clarifies “Traveling Employee” Exception

Contributed by Noah A. Frank

On December 19, 2013, the Illinois Supreme Court issued its much anticipated decision in Venture-Newberg-Perini, Stone & Webster v. Ill. Workers’ Compensation Comm’n., No. 115728 (Ill. 2013).   Claimant Ronald Daugherty accepted temporary employment 200 miles from his home at Respondent Venture’s Cordova plant.  Daugherty and coworker Todd McGill chose to stay in a hotel 30 miles from the plant rather than make the 400 mile/day roundtrip commute after their 12-hour shifts.  On what was to be their second day of work, McGill, driving his own truck, skidded on ice while crossing an overpass, resulting in serious injuries to Daugherty.  Daugherty sought workers’ compensation benefits.

An arbitrator (i.e., administrative law judge) found the accident did not arise out of and in the course of employment, and denied all benefits.  A divided Workers’ Compensation Commission panel acknowledged that, in general, an employee injured on the way to or from work was not entitled to benefits, but nonetheless reversed the arbitrator’s decision.  The Commission found two exceptions applied: (i) the accident arose out of the Daugherty’s employment since the method of travel was determined by the demands and exigencies of the job rather than the Daugherty’s personal preference, and (ii) Daugherty was a traveling employee whose injury was considered to arise out of and in the course of employment.  The circuit court set aside the Commission’s award.  The appellate court reversed, and reinstated the Commission’s award.

In the wake of a series of appellate court decisions that have  unreasonably expanded Illinois Workers’ Compensation  liability and employer exposure, Michael Resis, chair of SmithAmundsen’s Appellate Practice Group, was specifically hired and retained to brief and present oral argument to the Illinois Supreme Court. The Supreme Court reversed the appellate court’s decision, and reinstated the arbitrator’s award.  The Supreme Court held that Daugherty’s injuries did not arise out of and in the course of employment, nor was he a traveling employee, and therefore no benefits were due.  Daugherty was no different than any other employee who had to drive to work on a daily basis.  The Supreme Court found significant that:

  1. Daugherty was not required to accept the temporary employment, and would have been prohibited from doing so under his union’s rules had there been work available within the local’s territory;
  2. Daugherty had previously worked for Venture four times;
  3. Daugherty was not reimbursed for his travel or lodging expenses, nor was he paid for his time commuting;
  4. Daugherty made the personal decision that the costs of travel and lodging were outweighed by the potential wages;
  5. Venture did not require Daugherty and McGill to car pool, but rather they made the decision to save money;
  6. Venture did not make the travel or lodging arrangements; and
  7. Venture did not require Daugherty to relocate or commute in any particular fashion to get to work.

This decision is useful to employers, even on its limited facts as it puts limits on workers’ compensation liability where employees temporarily relocate away from the home communities.  The “traveling employee” doctrine excludes someone hired for only one location that is remote from his or her home.  However, while this decision provides some relief to employers under the traveling worker exception to the requirement that an injury “arise out of and in the course of employment” for workers’ compensation purposes, much ambiguity remains.  For example, while the Court found the facts above persuasive, it is unclear whether the decision would have gone the other way had Venture paid a special bonus or increased wages to compensate Daugherty for his increased travel expenses incident to the temporary employment.

Practical advice for employers:

Employers should be practical and proactive regarding hiring of employees and sending employees out in the field.  The following are some starting points, which should be tailored to specific situations:

  1. Job offer letters and agreements should be in writing and explicitly state that employment is at-will.
  2. Job offer letters should state the normal work hours and work location (and the employer’s right to change them!).
  3. Where it is known or likely that an employee may be commuting significant distance each day (over 100 miles round trip, or over 2 hours/day), it is worth mentioning that the employee is responsible for the costs of commuting, no portion of regular commuting costs will be paid by the employer, and that the employee will not be compensated for travel time.
  4. When employees are required by their employer to travel to different worksites, ensure that pre-established employment policies address, at minimum: speed limits (whether or not it is as high as the state maximum); cell phone and mobile device usage; vehicle usage; coworker and other passengers, and other “rules of the road.”
  5. Employers should note that employees are not permitted to “frolic & detour” while traveling for work purposes.  While a frolic & detour injury could be compensable under workers’ compensation, the employer may have grounds for disciplining the employee.

And as always, be sure to enforce work rules, no matter where the employee is located.