Illinois Injuries Involving Intoxication or Drug Use

In Illinois, evidence of an injured worker’s intoxication does not automatically bar entitlement to workers’ compensation benefits. However, the 2011 Amendments to the Illinois Workers’ Compensation Act did change the law in this area to make it an uphill battle for an employee to recover for injuries sustained while intoxicated. Pre-2011, the Act provided that to deny benefits, the employer had to prove that an injured worker’s intoxication was the sole cause of the accident, or the employee was so intoxicated at the time of the injury that the intoxication constituted a departure from employment. By contrast, the 2011 Amendments to the Act provide that if an employee’s intoxication is the proximate cause of the employee’s accidental injury, or the employee was so intoxicated at the time of the injury that the intoxication constituted a departure from employment, no compensation shall be payable to the employee.

Section 11 of the Act also now codifies a rebuttable presumption that an employee was intoxicated and that the intoxication was the proximate cause of the injury if at the time of the injury: (1) there was .08% or more by weight of alcohol in the employee’s blood, breath or urine; (2) if there is any evidence of impairment due to the unlawful or unauthorized use of a controlled substance; or (3) if an employee refuses to submit to testing of blood, breath, or urine. The employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries.

Any test purporting to show intoxication must be completed by an accredited or certified testing laboratory if it is to be used as evidence at trial to determine whether the employee was intoxicated at the time of injury. The specific rules on alcohol and drug sample collection and testing adopted by the Illinois Workers’ Compensation Commission can be found at Part 92140 of the Rules Governing Practice Before the Illinois Workers’ Compensation Commission.

What does this mean for Illinois employers? From an employer’s perspective, the 2011 Amendments regarding injuries involving intoxication or drug use are certainly favorable. However, as discussed above, the rebuttable presumption only applies if there is actual evidence of the intoxication.  As always, the best defense is a early and thorough investigation.  During the investigative phase of any potential workers’ compensation injury, it is important for the employer to note if there is any suspicion of drug or alcohol use at or around the time of injury so that testing is completed as soon as possible and/or witness statements are taken to preserve any evidence.


Illinois Independent Map Amendment Ruled Unconstitutional

We here are Inman & Fitzgibbons find it important to keep up to date on legislative matters that are not necessarily related to our areas of practice, but are still important nonetheless. The Illinois Independent Map Amendment is one such case.

The Independent Map Amendment is a citizen led effort to establish a non-partisan, independent commission responsible for drawing state legislative districts. Right now, legislative districts are drawn by state legislators. The re-drawing of districts occurs every 10 years after the Census is completed to ensure that elected officials represent roughly the same number of citizens. As part of the Amendment, the Auditor General was tasked as the reviewer of applications for the commission selection process to the proposed independent board. This detail would play a crucial role in the amendment’s fate.

In an effort to get the Amendment on the November ballot, the Independent Map Coalition collected over 563,000 signatures. The Independent Map Coalition submitted its proposal to the Secretary of State. Within five days, a lawsuit was filed to deny access to the November ballot. The lower court ruled that the Amendment was unconstitutional. Subsequently, the lawsuit was expedited through the Illinois court system until the Illinois Supreme Court, which issued its opinion on August 25, 2016.

In a split decision along partisan lines 4-3, the Illinois Supreme Court affirmed the circuit court. The Court found that the Amendment was unconstitutional and relied on Article XIV, section 3 of the Illinois Constitution, which limits any citizen-led ballot initiative to “structural and procedural subjects contained in Article IV.” The Court wrote that the Auditor General is not mentioned anywhere in Article IV of the Illinois Constitution and therefore the amendment was not limited to those structural and procedural subjects contained in this article.

The Independent Map Coalition filed a petition asking the Supreme Court to reconsider its decision, but the Court is quickly refused to do so.With this decision, it appears that the Independent Map Amendment is dead for 2016. At this stage, the issues lies with the process of an Independent Map Amendment but not with the Independent Map Amendment itself.

We will continue to update this important citizen-led initiative as developments warrant. This definitely will not be the last we hear of this effort.


Attorney Sonia Das Recognized By Indiana State Bar Association

Each year, the Indiana State Bar Association (ISBA) recognizes individuals for their contributions to the legal profession and the citizens of Indiana. This year, Sonia Das of I&F’s Indianapolis office received a Presidential Citation Award at the annual awards luncheon in Indianapolis on Sept. 9, 2015.  The Citation was presented by ISBA President Carol M. Adinamis.


Sonia is actively involved in promoting diversity and inclusion in the legal profession. She is the current chair of the Indiana State Bar Association Diversity Committee. By special appointment, she also served on a committee, which analyzed on behalf of the ISBA, a proposed amendment to the state constitution defining marriage. Additionally, she participated in the 2015 ISBA Conclave on the Future of Legal Education and served as an at-large member of ISBA Board of Governors in 2015.


Missouri Commission Doused Horseplay Claim

In a recent Missouri case involving “horseplay,” the claimant, Hedrick, was a mechanic who suffered serious burns resulting in a coma when he intentionally lit a can of adhesive which a coworker was holding. It caused an explosion and serious injuries to both the coworker and himself. The claimant required substantial treatment and incurred medical expenses exceeding $250,000.  The claim (Hedrick vs. Big O Tires) was denied by the insurance company and the case proceeded to trial.

The claimant argued that lighting the can on fire was horseplay but that horseplay was prevalent at the workplace and therefore, the risk of injury arose out of and in the course and scope of his employment. The claimant did testify that setting a can of glue on fire was not part of his job duties, although employees sometimes used open flames as part of their job duties when safety measures were taken to ensure that no flammable materials were close by.  In Missouri, a claimant is usually not entitled to workers’ compensation benefits if the claimant was involved in horseplay at the time of the accident.  In this case, it was reported that injuries due to other acts of horseplay had been accepted by the employer such as greasing door knobs, blowing air at another employee in the bathroom, snapping a rag towards an employee, and placing inappropriate objects in a toolbox.

Despite the history of horseplay at work, the ALJ found the claimant “failed to demonstrate a causal connection between the duties of his employment at Big O Tires and intentionally lighting a can of glue held in a co-worker’s hand on fire with a lighter. Mr. Hedrick himself testified that there was no function of his employment at Big O Tires that involved setting a can of glue on fire.”  The ALJ further stated that lighting the can on fire was an intentionally dangerous act that had nothing to do with his job duties and was extraordinarily dangerous, unlike the prior instances of horseplay which were obviously not life threatening.  The Commission affirmed the denial of benefits finding that the injury did not arise from a risk associated with the claimant’s employment.  It stated that “the risk bears almost no relation to the employment whatsoever. Any employee can choose to mishandle or misuse dangerous materials in such a way as to introduce new risks and hazards into the workplace; but this choice, standing alone, is insufficient to implicate workers’ compensation liability for consequent injuries sustained by such an employee.”

Interestingly, a co-worker who was also burned in the incident did receive benefits because his injury arose from an unprovoked and neutral assault. Fortunately, the Missouri Commission was able to make the correct decision in this case despite the significant injuries sustained by the claimant.

Thanks to attorney Jill Baker for the summary of this case.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at

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Marque Medicos Accused of Workers’ Compensation Fraud

Recently, Liberty Mutual Insurance brought a $17 million insurance and common law fraud lawsuit against Marque Medicos, a Chicago-based medical practice known for treating neck and back injuries of worker’s compensation claimants, alleging fraudulent billing practices.

In its August 17, 2016 complaint against Marque Medicos, Liberty Mutual Insurance alleged that Marque Medicos billed for therapy that they did not perform and billed at inflated rates. Liberty Mutual alleged that its investigation showed that Marque Medicos had billed at higher rates for such procedures as “attended electrical stimulation,” when “unattended electrical stimulation” was actually performed, and billed for “multiple units per visit of direct one-on-one” physical therapy, when they actually performed “single-unit-per-visit group therapy.” The lawsuit alleged the practice also billed for “hands-on therapy” that was never actually performed.

Liberty Mutual was joined by 17 other insurance companies. The insurance companies seek approximately $17 million for reimbursement of payments already made and for payments “wrongfully attempted to be obtained through the use of fraud.”

Obviously, any workers’ compensation claims involving treatment from this facility (or any, really) should be carefully scrutinized. Employers or their agents should carefully review the type, frequency, reasonableness, and necessity of treatment, utilizing a medical expert if necessary. Employers or their agents should also carefully review each medical bill, analyzing whether it matches the type of treatment being rendered and whether the bill appears to have already been paid.

We are hopeful for a positive outcome in this lawsuit for Liberty Mutual and the 17 other insurance companies that have joined in the lawsuit. If Liberty Mutual is successful, it can be expected that similar lawsuits will be filed against similar medical facilities. Either way, the suit will hopefully serve as a warning for medical facilities engaging in similar practices and will quell the amount of fraudulent billing that appears to be all too common in the area of workers’ compensation.

More Missouri mental stress claims headed our way?

Missouri’s Appellate Court recently ruled on a mental stress case* involving a woman who worked for the Missouri Department of Transportation and whose job required her to respond to traffic accidents. She claimed to have witnessed many disturbing events during her 20 years on the job. For example, she testified that she accidentally kicked the decapitated head of a car crash victim and listened to a child screaming while being burned to death. The employer denied the claim using the “similarly situated worker” defense and  contending that her experiences were no different from other employees doing the same job. Previously, Missouri courts required that mental injury cases must be “extraordinary and unusual” when compared to “similarly situated employees.” In this case, the Commission disagreed with the employer and awarded the claimant benefits in the amount of 50% partial permanent disability.  Both sides had agreed that the claimant had depression but the employer’s expert set her disability rating at 2 ½% while the claimant’s doctor set her rating between 90% and 95%.  The employer appealed the decision.

On appeal, the claimant argued that based on the 2005 statutory reforms that it was no longer necessary to prove that a mental injury was extraordinary and unusual compared to other employees doing the same work to qualify for benefits.  The argument required a strict reading of the law which states “Mental injury resulting from work-related stress does not arise out of and in the course of employment, unless it’s demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.”  The claimant argued that there is no mention of having to compare the stress to a similarly situated employee.

The appeals court agreed that the strict reading of the law does not require a comparison to a similarly situated employee and only requires that the work stress be “extraordinary and unusual“.  The court found that the events witnessed by the claimant in this case and the stress that she was under was extraordinary and unusual. The 50% partial permanent disability was affirmed.

Despite the expected intention of the 2005 reforms to reduce the number of compensable claims, this case is an example where it is having the opposite effect.

* Linda Mantia v. Missouri Department of Transportation, Court of Appeals of Missouri, Eastern Dist., Div. 3, No. ED103016, 6/14/16

Thanks to veteran attorney Jill Baker for the summary of this new development.  Jill works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and can be reached at

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Disfigurement in Illinois Workers’ Compensation

Section 8(c) of the Illinois Workers’ Compensation Act provides for benefits for work-related scarring and disfigurement. Specifically, recovery is provided for “any serious and permanent disfigurement to the hand, head, face, neck, arm, leg below the knee or the chest above the axillary line…”

So, what exactly is “disfigurement” in terms of workers’ compensation? The Illinois Supreme Court has defined disfigurement as “that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner.” The Court stressed that the disfigurement must be “serious and permanent,” noting that it was not intended under Section 8(c) “to authorize compensation for every trifling mark that could be discovered by the closest inspection.” Superior Mining Co. v. Industrial Comm’n, 309 Ill. 339, 340 (1923).

Evaluating disfigurement is a highly subjective task. According to the Act, the amount of compensation for disfigurement can be determined by agreement at any time or by arbitration at least six months after the date of injury. Recovery is based on a number of weeks, paid at a rate of 60% of the employee’s average weekly wage, subject to the caps stated in the Act. The recovery determination should be made after there has been sufficient time for healing. Generally, both parties will make arrangements for a scar viewing at least six months after the date of injury, and will negotiate settlement based on the appearance of the scarring. The employer or its agent may wish to wait longer to obtain maximum healing. If the parties cannot come to an agreement, the employee may be brought before the Arbitrator for his or her informal evaluation and settlement recommendation prior to a formal Hearing.

If an employee is awarded compensation for disfigurement under Section 8(c), he or she cannot also be awarded compensation for loss of use to the person as a whole, specific loss, or permanent total disability benefits for an injury to the same body part.

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Thanks to attorney Allison Mecher for this informative overview.

I&F Secures a “Zero” on Alleged Repetitive Trauma Claim

In this case, the claimant, an Administrative Clerk, filed a claim for repetitive trauma to his right upper extremity as the result of work duties in an office environment where he worked essentially as a shipping clerk.  To complicate the claim, the claimant was a lifelong sufferer of cerebral palsy that affects his entire left side, including his left upper extremity.  At trial, the claimant emphasized the time he spends at work on the computer using only his right hand and arm, but through defense witnesses, we were able to show that “time on the computer” does not equate to keyboarding on the computer.  Most of the time on the computer was doing point and click with a mouse, and not much of that even.  We prevailed in showing that the claimant failed to establish exposure to repetitive trauma.  Medical causation was also at issue, and we were able to show that the IME, who had a detailed description of the job duties, was more credible than the treating physician, who relied only upon what he was told by the claimant.  It helped that the claimant mentioned a non-occupational activity as the starting point for the symptoms, as the IME also used that as the basis for finding the condition related to that activity rather than the work activities.

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Congratulations to Partner and Vice President Steve Murdock for his win, which concluded in a denial of benefits for proposed elbow and wrist surgery and a year of TTD.

The IWCC isn’t Horsing Around with Horseplay Analysis

The Commission recently decided that being involved in horseplay at work is not necessarily a bar to obtaining benefits.  In Lisa Richmond, Petitioner v. Cambridge House of Maryville, Respondent, 14 IL. W.C. 01857, the claimant was at work when a co-worker kneed her in the back of the leg as a practical joke, causing her to fall and to suffer a leg sprain.  The Arbitrator denied benefits, finding that the incident did not arise out of the claimant’s employment and that the co-worker’s prank had nothing to do the claimant’s work.

However, the Commission reversed, noting that the claimant had not been a willing participant in the prank and that “she was on the clock, on Respondent’s premises, waiting to retrieve her lunch pursuant to Respondent’s procedures, when she was excitedly greeted by a co-employee, who was also on the clock, and sustained an injury to her left knee.”  The Commission cited case law supporting that the act of obtaining lunch on the employer’s premises is incidental to the employment.  Most importantly, the Commission reiterated that an employee who has a practical joke played on them can still recover workers’ compensation benefits.  The Commission then quoted the language from Murray v. Indus. Comm’n of Illinois, 163 Ill. App. 3d 841, 516 N.E.2d 1039 (3d Dist. 1987) that establishes that “Illinois permits the nonparticipating victim of horseplay to recover worker’s compensation benefits.”

It is crucial to examine the factual details of every claim in order to assess whether or not it is compensable.  Many cases come down to small and easily overlooked facts, such as whether an injured employee was voluntarily participating in horseplay or not.  As always, timely and thorough investigation of claims remains the best defense!  

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Thanks to attorney Michael Bantz for this case law update and if you ever have questions as to whether the facts of a case support an entitlement to benefits or a denial, don’t hesitate to contact us here at Inman & Fitzgibbons!

I&F Runs Gigi’s Playhouse 5K


Frank Murdock, Kevin Deuschle, Zoe Barilla-Deuschle, Steve Murdock, Linda Waninski, Lauren Waninski, Allsion Mecher, Maurice Smith, Michelle Bryant, Scott Mecher 

On Saturday, June 11th, I&F attorneys Steve Murdock, Kevin Deuschle, Lauren Waninski, Michelle Bryant and Allison Mecher, along with friends and family, ran in the annual GiGi’s Playhouse 5k to raise money for the Fox Valley Playhouse, of which Steve is currently a member of the Board.  GiGi’s Playhouses are Down syndrome awareness and educational centers that provide resources, specialized teaching, and support to individuals with Down syndrome, their families and the community.

Back to AWW Basics with I&F’s Frank Johnston

It is a basic principle of the Illinois Workers’ Compensation Act that when calculating an average weekly wage for a petitioner who has concurrent employment, and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation. In other words, if a petitioner had a second job, and the employer was aware of that job, then we calculate the average weekly wage using his wages from all employers. The question is how far courts will take the concept of “concurrent employment”.

The Illinois Supreme Court was given the opportunity to address this question in the case of Flynn v. Industrial Commission, 211 2d. 546, 813 N.E.2d 119, 286 Ill.Dec. 62 (2004). In that case, the petitioner worked as an asphalt driver from early Spring through November or December for 17 years. In the off season, the petitioner would work odd jobs. During one of these odd jobs (blowing snow for the local township), the petitioner suffered a severe injury. A dispute arose as to whether to include the wages from the petitioner’s asphalt driving position or to only calculate the wages he earned blowing snow for the township.

Initially, the Court noted that despite being laid off from his position driving an asphalt truck, he had a long and consistent history of rehire as had been the case the prior 17 years. The Court found that his employment relationship was not wholly severed such that his earnings from the employment became irrelevant to the prediction of his lost future earnings and that his employment relationship with the asphalt company remained sufficiently intact such that the claimant’s past earning experience remains a valid predictor of future earning loss. Finally, the Court found that his AWW must include his earnings as an asphalt driver and for the position for which he was currently doing.


It is clear that the Supreme Court took an expansive view of the term “concurrent employment.” This provides some historical context for the rationale of the Appellate Court in the recent decision ABF Freight.  The Court in Flynn did not give any additional direction to what it means when it stated that the “employment relationship remained sufficiently intact such that claimant’s past earning experience remains a valid predictor of future earning loss,” but the disagreement will turn into a factual dispute regarding the concurrent employment. In any event, Employers should heed this advice: Be aware of your employees’ work activity – all of it! – as you may end up paying for more than what you think you’re bargaining for.

Thanks to I&F attorney Frank Johnston for the reminder and update.  Frank works out of the Champaign office and is a member of the Champaign County Bar Association, Vermilion County Bar Association, and a founding member of the Young Lawyers Network and Champaign County Young Lawyers division. He has presented topics to the Champaign and Vermilion County Bar Associations.

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I&F’s Sonia Das Discusses Diversity in the Legal Profession with The Indiana Lawyer

Sonia Das, who serves as the Chair of the Diversity Committee for the Indiana State Bar Association (ISBA), was recently interviewed by the Indiana Lawyer regarding diversity in the legal profession.


The ISBA is Indiana’s largest voluntary state bar association, with over 12,000 members.  Sonia has served on the Diversity Committee since 2012, working with the bar association leadership addressing important diversity issues and discussing strategies to improve diversity in the legal profession. View the article here.

Sonia works out of I&F’s Indianapolis office and was recently named to the 2016 Indiana Super Lawyers list.


I&F’s Lauren Waninski installed as a Director of the Women’s Bar Association of Illinois

Inman & Fitzgibbons proudly congratulates Associate Attorney Lauren L. Waninski who was installed on the Women’s Bar Association of Illinois (WBAI) Board of Directors.


The WBAI held its Annual Installation Dinner on June 8, 2016 at the Hilton Chicago.  Lauren will be serving a 2 year term.


The WBAI’s mission is to promote the interests and welfare of women lawyers throughout the State of Illinois. The 2016-2017 theme is “We Are the WBAI.” Adria East Mossing was installed as the 100th president of the WBAI.

WBAI 2016

I&F attorneys Steve Murdock, Allison Mecher, Jill Baker, Lauren Waninski, Jynnifer Bates, Michelle Bryant, Jack Shanahan

Missouri Court of Appeals gives no “Break” to Employer in Lunchroom Injury Claim

The Missouri Court further muddied the 2005 reforms which attempted to restrict compensable work related injuries and awarded worker’s compensation benefits for a claimant who was injured on his lunch break based on the personal comfort doctrine. At the end of last year, the Missouri Court of Appeals affirmed an award of PTD finding that the personal comfort doctrine allowed compensation for an injury during an uncompensated lunch break. The claimant was in the employer’s lunch room eating lunch when a chair collapsed resulting in a serious back injury.  The claimant had just returned to work following back surgery when he sat in the chair and it broke and he reinjured his back.  Wright v Treasurer of Missouri.

The defense unsuccessfully argued that the claimant was engaged in a personal comfort of eating lunch and that the statutory reforms from 2005 abolished the personal comfort doctrine (Section 287.020.10).  The personal comfort doctrine includes activities that the employer might reasonably expect employees to perform as those activities benefit the employer by allowing its workers to eat, take a coffee or cigarette break, or go to the bathroom. The respondent further unsuccessfully argued that the claimant’s weight could cause any chair to break and that he failed to show a specific work risk because he was equally exposed to collapsing chairs away from work.

The Commission found that the claimant was permanently and totally disabled as a result of his fall and prior injuries and that the injury was causally connected to the claimant’s work activities.   They further found that the claimant was not equally exposed to the risk of that particular chair collapsing in his normal, non-employment life. Specifically, they stated that the only place that the claimant was exposed to that particular chair was at his employment.  The Court concluded that the risk of the claimant’s injury was associated with his work and that the claimant was not equally exposed to this risk outside of his job.  In effect saying, the injury occurred because the claimant was at work and not simply while he was at work.

The court further stated that the legislature did not expressly abolish the personal comfort doctrine in the 2005 reforms.  “Nothing in Section 287.020.10 or in cases discussing it since indicates that the legislature sought to hinge recovery solely on the action of the employee, thereby eliminating recovery for injuries sustained during lunch on the employer’s premises.”   The court found that 287.020.10 barred recovery under the personal comfort doctrine when an accident occurred off of the employer’s premises but was not a per se bar to injuries that occurred on premises when an employee is on an unpaid break. The Commission further found the collapsing chair a “hazard present in the workplace”.

In a more recent Commission case it was said “There is no provision of the Law that requires employee to prove he was “working” at the time of his accident”.   The Commission will not “carve out artificial islands of non-compensability at the workplace, which islands have indistinct geographic and temporal boundaries. We deem such an approach impractical, inconsistent with the purposes of the Workers’ Compensation Law.”

This decision appears to removes the 2005 safety net that protected employers from worker’s compensation claims when a worker clocked out or went on a meal break on the premises.   Now employers appear to face liability for activities not specifically work related.  The only positive “break” for employers may be that they will not be sued in civil court for these injuries.

Thanks to veteran attorney Jill Baker for the summary of this new development.  Jill works out of the Chicago and St. Louis offices on Inman and Fitzgibbons and can be reached at

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More Ill Noise from Illinois

In a development (or lack thereof) certain to affect every citizen and business in the state, Illinois law makers have nothing to show after months of negotiation over the Illinois budget for 2016. At the midnight deadline of May 31st, state legislators failed to create a bipartisan state budget. This will now be the second year that Illinois is without a budget—further digging the state into a budget crisis.


Governor Bruce Rauner had proposed two temporary stop-gap bills that would have fully-funded K-12 schools while also allocating $105 million towards extra funding to education. The bills also focused on temporary funding concerning other government services like state colleges and social services. While the bill was passed through the Illinois’ Senate, it was rejected by the House just minutes before the deadline was reached. Governor Rauner expressed his anger towards the General Assembly, calling the session a “stunning failure.”

It is baffling to see after ten months of negotiating and debating, Illinois lawmakers are unable to create a bipartisan budget for the second year in a row. Due Illinois’ budget crisis, the state has relied heavily on court orders and consent decrees for funding in the past year. The budget crisis has created an absolute and financial mess for essential government services. Pushing this to the future will only make it more difficult for a bipartisan budget to be created as passing a budget will now require a 3/4 super majority vote.

It is easy to see the aggravation that many Illinois citizens feel when they are asked about Illinois politics. The lack of bipartisan cooperation can be traced back to the separate agendas of the Governor and the Democratic majority in the Senate and the House. Governor Rauner has focused his “turnaround agenda” which he believes will grow the state economy and increasing revenue in contrast to Democrats focus on an increase in taxes and a purported concern that the agenda of Governor Rauner will hurt the middle class.

Whatever the outcome, it is clear that changes to Illinois Workers’ Compensation remain a key issue under discussion.  Prior to the deadline, many observers felt that the best hope for a compromise would come from the various “working groups” that are trying to reach a compromise on several points of Rauner’s agenda which includes changes to workers compensation, property tax relief, collective bargaining changes, and pension reform.

The Illinois Pilot Program for Medical Cannabis may be Extended to 2020

The Illinois Senate just passed a bill, Senate Bill 346 (SB 346), that will take the medical marijuana pilot period to the next decade.  The pilot program was to end in 2018, but if the bill becomes law, the end date will come in 2020.  As we stated in our most recent post, the first step Illinois has taken toward legalized marijuana was enacting the Compassionate Use of Medical Cannabis Pilot Program Act in 2013 and taking effect at the start of 2014.  The state legislature has correctly identified that with the delay in implementation of the provisions of that Act until 2016 due to the creation of regulations and approval of growers and suppliers, the pilot program would not be active long enough to give any sense of its success or failure.

The bill was introduced in the Senate, passing there, but it needs to next be introduced in the House for review and approval before it can be passed along to the governor’s office for passage into law.  The Illinois Chamber has taken a neutral position on this bill.  We will continue to keep you updated.

Will Illinois Be One of the Next States to Legalize Recreational Marijuana? Yes! Well…maybe.

When Illinois joined 22 other states to legalize the use of medical marijuana, we began informing our readers that this could be the first step on a slippery slope down which Colorado and Washington, and now Alaska, have already gone – legalization for recreational use.  We can certainly debate the pro’s and con’s of legalization of marijuana for recreational use, making it as available to the general public as cigarettes or alcohol, but the primary catalyst to the discussion of whether to take that next step has always been money.  The State of Illinois is in economic crisis and it needs revenue.  We have yet to see what additional revenue the State has collected from the implementation of the “Compassionate Use of Medical Cannabis Pilot Program Act,” which was signed into law by Governor Pat Quinn in August 2013, because the Act has not been fully implemented until this year.  But if we look to some of the other states that are ahead of us, you can see why state legislators have put forward legislation to legalize recreational marijuana in Illinois .  Yes, there IS a bill introduced in Springfield.

Reports indicate that Colorado, one of the first to legalize recreational marijuana (and give new meaning to John Denver’s “Rocky Mountain High”) is bringing in approximately $11,000,000 per month in sales and excise taxes on marijuana.  Yes, that is $11MM per month!  One source has estimated that if you adjust the numbers to the higher population in Illinois, that number in Illinois could result in monthly income as high as $26.8MM per month, or about $321.5MM per year!  Similarly, Washington, which also legalized recreational marijuana in time for the Superbowl between the Denver Broncos and the Seattle Seahawks (ironic really), is averaging $2,400,000 per month. Using their taxation model and recalculating to Illinois population, you’ll see numbers still around $300MM per year.  Easy money is very tempting.

House Bill 4276 (HB4276) sponsored by Rep. Kenneth Dunkin (D – 5th Dist. Chicago) is quite simply titled, “CANNABIS REGULATION&TAXATION.”  The bill would create the Cannabis Regulation and Taxation Act. It would permit, for persons 21 years of age or older: (1) possessing, consuming, using, displaying, purchasing, or transporting cannabis accessories; (2) possessing, growing, processing, or transporting no more than 8 cannabis plants and possession of the cannabis produced by the plants on the premises where the plants were grown; (3) transferring 30 grams or less of cannabis or up to 6 immature cannabis plants to a person who is 21 years of age or older without remuneration; and (4) assisting another person who is 21 years of age or older in any of these acts.

This bill would also create an excise tax imposed at the rate of 10% of the sale price of the sale or transfer of cannabis from a cannabis cultivation facility to a retail cannabis store or cannabis product manufacturing facility. It would also amend the Unified Code of Corrections to create a new regulatory offense classification of offense, which is not to be considered a criminal offense, but a fine only for the amount specified in the offense or for which community service may be imposed for violations of this Act, and it would change various currently existing penalties for the possession of more than 30 grams of cannabis and for producing or possessing more than 8 cannabis sativa plants.  According to the Illinois General Assembly website as of May 20, 2016, this bill had been referred to the Rules Committee back in August 2015 and advanced no further.  While it did pass out of both House and Senate last year, Governor Rauner used his veto power to put it to rest.  In a nutshell, this bill has died in the initial planting stage.

But, there is another bill currently active that decriminalizes the possession of 10 grams or less of marijuana.  Senate Bill 2228 (SB2228) has bipartisan sponsorship in both the Senate (14 sponsors) and the House (9 sponsors).  This bill, while not setting up a more formalized legalization and taxation of recreational marijuana, is a first step in that direction and has gained some traction.  In short, the bill will amend the Cannabis Control Act, providing that that the possession of 10 grams or less of cannabis will be a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200.  (Currently marijuana possession of up to 10 grams is a class B misdemeanor  punishable by fines up to $1,500 and up to six months in jail.)  The law will also create the offense of unlawful use of cannabis-based product manufacturing equipment as a Class 2 felony. It will continue to permit any municipality or unit of local government to impose a fine for the possession of cannabis and  not invalidate or affect those local ordinances.  It will also amend the Illinois Vehicle Code by providing that a person shall not drive or be in actual physical control of any vehicle, snowmobile, or watercraft within this State when the person has, within 2 hours thereof, a tetrahydrocannabinol (THC) concentration in the person’s whole blood or other bodily substance of 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood or 10 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of other bodily substance from the unlawful consumption of cannabis (rather than a cannabis THC concentration in any amount as currently exists in the Illinois Vehicle Code). It will also amend various other Acts to so as to conform with this new law, and it would take effect immediately upon being signed into law.  This more recent bill incorporates the changes that Rauner wanted to see in HB4276 (i.e. lower allowed possession and higher fines).  With that being the case, it is strongly anticipated that Governor Rauner will sign off on the bill should it make its way to his desk.

On May 18, 2016, SB 2228 passed in both the House and the Senate.  Next stop?  Governor Rauner’s desk.  It may be a very happy Memorial Day Weekend for some.

Thanks to I&F Partner Steve Murdock for this timely reporting.  Steve has  counseled Illinois businesses on this issue since it arose and we encourage Illinois employers and insurers to reach out to him with any questions as to how this might affect the workplace.

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I&F’s Michael Bantz Prevails in Accident Dispute

Attorney Michael Bantz recently secured a favorable Arbitration decision in a case where the Petitioner had claimed that she had hurt her low back while lifting a bag of salt.  In this case, the Respondent was able to prove that the Petitioner did not have a work accident.  The Arbitrator found that that the Petitioner’s testimony was less reliable than the medical records, which did not contain any reference to the alleged work accident.  The Petitioner’s testimony also conflicted with statements that she made to several different treating physicians, as well as the testimony of a witness from the employer.  In weighing the inconsistent testimony of the Petitioner against the testimony of a witness from the employer and the medical records, the Arbitrator found the petitioner was not credible and did not award any benefits.  A review of this Decision is not being sought before the IWCC.

Congratulations to Michael for the excellent result.

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Be Careful What You Ask For

Partner Terry Donohue from our office recently prevailed at trial in a claim in which the question of whether the petitioner had an accident was heavily disputed. The petitioner testified to a work injury in July  of 2011 that occurred when she was unloading a semi-truck when a box above her became loose and fell, striking her right shoulder area. She finished her shift without reporting anything, and then called off the second day without saying anything about a work injury. Petitioner then went to the emergency room on the third day and said she hurt her shoulder/clavicle three days ago, but gave no mechanism of injury.  At trial, petitioner stated that prior right shoulder and neck treatment was different than her current problem. She testified that the accident absolutely occurred and that the respondent should have surveillance video proving the same.  She also alleged that the respondent was likely withholding statements corroborating the accident from co-workers.  Petitioner testified that she did not immediately claim a work injury because she was afraid she would get fired.

Respondent presented testimony of petitioner’s supervisor and a loss prevention manager. They each testified that the petitioner, after failing to show up on the third day with no explanation, was finally reached on the fourth day.  At that time she stated that she fell in the shower at home and injured herself. They further testified that petitioner voiced frustration at that time because her group medical insurance was not going to start for another 2 weeks.  The petitioner’s supervisor and the loss prevention manager also testified that, about two weeks later, the petitioner changed her story and said this was actually a work injury.  The loss prevention manager testified to his subsequent investigation and statements from co-workers confirming that no accident had been witnessed by these employees or discussed with petitioner.

The loss manager also confirmed that there was video footage of the alleged date of accident.  The video was offered into evidence after the parties and the arbitrator viewed the video which, contrary to the petitioner’s testimony, did not show any accident or suggestion of pain or injury on the part of the petitioner.

In addition to the factual evidence and testimony, we subpoenaed medical records showing significant prior treatment to the petitioner’s allegedly injured shoulder and neck. We also obtained the opinion and testimony of an IME shoulder specialist, who stated that there was no evidence of an acute accident, either in the medical histories or from his own examination and review of the diagnostic studies,

Congratulations to Terry for the excellent result!

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I&F’s Judy Nash Goes 2 for 2 on Appeal

I&F’s Judy Nash recently recorded a pair of wins on behalf of Illinois employers.  In the first, the Circuit Court of Lake County affirmed the Commission finding that the petitioner failed to establish a compensable injury that allegedly occurred in a fall in the lady’s room on the premises of the employer.  Following a hearing over the course of three days, Judy was successful in obtaining a decision finding that the petitioner, a Records Input Operator for a municipality in the northern suburbs, was not credible and the evidence established that she did not sustain a compensable work injury.  In support of its denial, the respondent produced security camera footage of the petitioner immediately following the alleged fall at work walking in the hallway and a witness who was in the lady’s room at the time of the alleged injury.  Additionally several Police Officers testified in support of the respondent’s position and an on-site inspection of the ladies room was conducted by the Arbitrator.   This result represented a significant savings for the respondent as the petitioner had two failed rotator cuff repairs and had been recommended for a shoulder replacement.

Judy was also successful before the Appellate Court on an issue involving Section 11 of the Act.  A Rule 23 decision from the Appellate Court affirmed the decision of the Circuit Court, Commission and Arbitrator  finding a Fire Department employee’s two knee injuries that occurred while he was participating in a voluntary recreational program were not compensable pursuant to section 11 of the Act because he was engaged in a voluntary activity.    The petitioner alleged two separate knee injuries while jogging and during exercise at the city’s health club.  Petitioner was a participant in a City sponsored fitness challenge program offered to all employees and spouses. The petitioner underwent a left knee arthroscopic partial medial meniscectomy followed by a right arthroscopic partial medial meniscectomy.  At trial, the respondent produced the petitioner’s employment contract to establish that he had no formal requirement relating to physical fitness.

Congratulations to attorney Judy Nash for the excellent results.

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