Reform: An Up to the minute Primer (Redux)

November 2015

By Francis M. Brady

What follows is a summary of all the legislation¹ under consideration, or potentially under consideration, as of the end of October 2015, arranged according to the major reform issues.

Connecting the Injury to Work

The ease with which an Illinois worker connects her injury to her job unfairly expands the scope of workers' compensation. Legislation introduced this year seeks to redress this inequity by tightening standards concerning how the accident happened; where the accident happened; when the accident happened; and the quality of evidence necessary to prove all three.

The Senate Republicans introduced legislation addressing whether an injury is actually connected to a petitioner's job. In Floor Amendment 1 to SB0994, filed May 22, 2015, the Senate Republicans (and Governor Rauner, who supports this legislation) formalize the notion that activities that are: a) non-incidental to the worker's job or b) incidental to the job but also faced by the general public do not result in compensable accidents.²

SB0994 further imposes a heavier burden of proof on a petitioner seeking to relate his injury to his job by requiring he adduce "credible evidence," including "objective and relevant" medical data.

For their part, the Senate Democrats in SB0162 seek to clarify just what is meant by the hoary concept that the worker must prove his injury arose out of and in the course of his job. Their proposed language specifies that the injury must arise from acts the injured worker was instructed to perform by the employer; acts which the worker had a common law or statutory duty to perform, or acts which the employee "might reasonably be expected to perform incidental to his or her assigned duty." The statute goes on to define "incidental risk" as one belonging to, or connected with, the discharge of the worker's job duties. This language is actually identical to language proposed by the House Democrats in Amendment 5 to HB1287.

The notion that a work accident can be compensable even though a mere aggravation of an existing condition is attacked by the Senate Republicans in the mandate that the work actually must be a "major contributing cause," that is, greater than 50% responsible when compared to "all other combined causes."

The various legislative proposals also consider when an accident suffered by a traveling employee is compensable. SB0162 provides injuries sustained in conduct "anticipated or foreseen" as reasonable by the employer will be found compensable. However, where the traveling employee is hurt pursuing a "purely personal deviation or personal errand," no benefits are owed unless the "deviation or errand is insubstantial." The legislation does not define "insubstantial" but does delineate a "traveling employee" as a worker traveling to perform a job with the knowledge of the employer; transportation furnished by the employer; transportation expense reimbursed by the employer or travel directed in any fashion by the employer (including assisting with travel arrangements, furnishing lodging, or reimbursing the employee for lodging). This statute makes clear that this list of travel scenarios is not exhaustive; that is, other factors may be relevant to determining whether the travel was integral to petitioner's job.

House Democrats have also considered traveling employees. Amendment 5 to HB1287 treats traveling employees in a manner very similar to the Senate Democrats in SB0162, except that the House measure does not address specific characteristics of a traveling employee; for example, this proposed measure does not delineate circumstances like travel reimbursement.

Under the Republicans' SB0994, injury to a traveling employee is compensable only where her employer furnishes transportation; paid reimbursement for travel, gas or lodging, and is required to travel by her job duties. This measure eliminates the "reasonable and foreseeable standard" in favor of emphasizing that the risk encountered in traveling must be "incidental to or connected with" her job. Going back and forth to work does not constitute compensable travel nor does activity on a paid or unpaid break where the tasks do not relate to the job.

In Amendment 6 to HB1287, the House Democrats specify that repetitive trauma injuries suffered by an employee within three months of starting on the job "shall not be considered by a workers' compensation insurer in setting the premium rate for the employer." They propose as well that contribution be allowed from one employer to another in repetitive trauma cases based on pro rata responsibility. However, contribution cannot be sought until one employer has been found liable. Within a year of that finding, the employer found liable can "institute proceedings before the Commission for the purpose of determining the right of contribution of reimbursement." The employee has to reasonably cooperate in this contribution proceeding. Even if the employer initially found liable files against other employers within a year of the award, payments made more than two years before (which can easily happen with TTD and medical bills) will not be reimbursed.

In stark contrast, the Senate Republicans in SB0994 provide that the last employer for which petitioner worked for at least three months bears complete responsibility.

The article concludes in the December BCM Practice Alert with a consideration of the legislation's impact on medical expenses; nature and extent exposures; and, updating systems at the Commission.

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[1] HB1287 (Amendments 4, 5, 6, 7, and 8) filed 6/3/15 by Representative Jay Hoffman; HB4248, filed 7/8/15 by Representative Jim Durkin; SB0994 (Amendment 1) filed 5/22/15 by Senator Christine Radogno; and, SB0162 (Amendment 1) filed by Senator Kwame Raoul on 8/4/15. [2] HB4248 represents almost verbatim the House version of SB0994 and, accordingly, its evaluation is largely subsumed in review of the Senate measure.