Illinois Appellate Court Reinforces Evidentiary Standards for Respondents in Ramirez

October 2025

Ivan Nieves and Tatum A. Joerndt

In a recent published decision in the case Daniel Ramirez v. Ill. Workers’ Comp. Comm’n, 2025 IL App. (1st) 242467WC (“Ramirez”), the Illinois Appellate Court held that (1) absent written stipulation agreeing to Average Weekly Wage (AWW), a Respondent cannot rely solely on payroll records without foundational testimony and (2) when asserting an intoxication defense to deny or delay benefits, the Respondent cannot rely solely on a "positive" drug test but rather, produce a drug test report that clearly indicates the amount of the drug pursuant to Section 11 that would prove intoxication at the time of the incident; have expert testimony regarding petitioner's intoxication; or witnesses available to testify that Petitioner's intoxication was the cause of the injury or that Petitioner's level of intoxication was so excessive as to constitute a departure from the course of employment.

PROCEDURAL HISTORY

The Petitioner, Mr. Daniel Ramirez, was working as a truck driver/mover for Respondent company when he sustained an injury to his right ankle on March 24, 2022. Petitioner was doing a moving job during a light drizzle when he slipped downstairs and fractured his ankle, ultimately requiring surgery. Petitioner stopped working shortly after the incident, reported the injury, and was reportedly told to arrange transportation to the hospital and instructed to undergo a drug test. He tested positive for marijuana, though the report did not indicate the number of cannabinoids in the Petitioner’s blood at the time of testing. Petitioner stated that he had a medical marijuana card and last smoked on March 23, 2022. He denied being under any influence on March 24, 2022. Petitioner formally requested benefits be paid two days after the incident and was denied both his TTD benefits and medical benefits on the basis of his positive drug test.

The Petitioner was the only one who testified during the initial arbitration hearing. No one from the Respondent’s side testified to any issue, which played a significant role in the Appellate Court’s ruling later on. At that time, the Arbitrator awarded the Petitioner TTD benefits and imposed penalties and fees for the Respondent’s delay/denial.

The Commission reversed the Arbitrator’s determination of the amount of TTD benefits owed to the Petitioner and reversed penalties and fees. While the Arbitrator found the Petitioner’s average weekly wage to be $412.50, the Commission noted that there was no wage calculation or evidentiary basis to support this finding other than this being the amount Respondent placed on the Request for Hearing form. At arbitration, Petitioner had claimed that his earnings during the year preceding the injury were $43,680.00 and that his average weekly wage was $840.00. Respondent had offered Petitioner’s payroll records and claimed that the AWW was $412.50. Based on the payroll records, the Commission ironically calculated an average weekly wage of $341.92, however, noted that it was unable to modify the Arbitrator’s Decision as to the AWW because Respondent was bound to its stipulation to the higher average weekly wage of $412.50 (citing Walker v. Industrial Comm’n, 345 Ill. App. 3d 1084, 1087-1088 (2004)). While the Commission affirmed the AWW rate, they did find that the Arbitrator utilized a TTD amount less than the statutory minimum amount for a single Petitioner with no dependents, or $320.00. This resulted in an additional benefit amount of $4,496.65 awarded to the Petitioner.

Regarding intoxication, the Commission utilized Section 11 in analyzing the admissibility of the positive drug test to deny or delay the Petitioner’s benefits. The Commission noted that “…the report is not admissible as evidence of intoxication, nor can it be used to determine intoxication. However, Section 11 and the Rules of the Commission do not explicitly prohibit the Commission from admitting and/or considering the drug test report for the limited purpose of determining whether penalties and fees are appropriate.” The Commission ultimately found that the Respondent did not act unreasonably in delaying the Petitioner’s benefits and reversed the Arbitrator’s award of penalties and fees. The Petitioner then sought to appeal the Commission rulings.

AWW BENEFIT RATES AND USE OF PAYROLL RECORDS ABSENT WRITTEN AND AGREED STIPULATION

The issue on appeal before the Appellate Court was whether the Commission erred in admitting the Petitioner’s payroll records to determine his AWW. The Petitioner did not have a formal clock-in and clock-out. He texted his boss when he was at work and when he was done. The Petitioner did not believe he was paid for all his hours of work leading up to the accident. He argued that the payroll records were inadmissible hearsay and that the Respondent had not laid the appropriate foundation to use them. Conversely, the Respondent argued that the payroll records are admissible under the “business records rule.” Petitioner was the only one who testified before the Arbitrator.

The Court found that, regarding AWW, if there is no written stipulation agreeing to AWW prior to trial, Respondent/Employer cannot rely solely on admitting payroll records/wage status per “business records exception to the hearsay rule”. The foundation for the admission of wage records must be established by “testimony” from the records custodian or another person familiar with the records (i.e. Human Resources Representative or other Payroll Department Representative). Despite Respondent’s argument that the payroll records were consistent with the Petitioner’s testimony regarding the wages paid to him, the Appellate Court agreed with the Petitioner that it was error to admit the records without accompanying foundational testimony, noting “the Respondents did not present any testimony at all regarding the payroll records…Instead, the evidence was supported only by a conclusory statement from counsel that the records qualified for the business records exception. This was plainly insufficient.” The Appellate Court concluded that the Commission abused its discretion in adopting the arbitrator’s admission of the payroll records into evidence and since the admitted payroll records were central to the Commission’s determination of the petitioner’s average weekly wage, which is a question of fact for the Commission to decide, the Appellate Court reversed Commission’s rulings setting the petitioner’s average weekly wage and the amount of TTD benefits owed, remanding for the Commission to reevaluate those issues without consideration of the payroll records.

INTOXICATION DEFENSE ABSENT WITNESS TESTIMONY OR SPECIFIED AMOUNTS

At issue was also whether the Commission erred in considering the drug test report for the limited purpose of determining penalties and fees. While the report was positive, it did not provide any numerical values regarding the amount of concentration of the drug present.

Firstly, if relying on intoxication defense, Employers need to be certain that the testing clinic strictly follows Section 11 testing requirements or will be inadmissible for the purposes of establishing that the Petitioner was intoxicated and, therefore, ineligible for benefits (¹).

The Petitioner argued that the test results were hearsay and did not comply with statutory requirements and were, therefore, inadmissible for any purpose. The Court determined that it was proper for the Commission to admit and consider the drug test for the limited purpose of evaluating the reasonableness of the Respondents’ actions; however, not intoxication and the “simple positive test result, standing alone and unaccompanied by other evidence of intoxication, was insufficient to justify the delay or denial of benefits and that the Commission’s reversal of the arbitrator’s award of penalties and fees was, therefore, against the manifest weight of the evidence.”

The Appellate Court also seems to indicate that Petitioners have a low burden to 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.” Here, the Appellate Court seemed satisfied with the Arbitrator/Commission’s finding the Petitioner credibly testified that he was not intoxicated at the time of the injury and did not smoke marijuana or take any other illicit substances before work on March 24, 2022, even though the Petitioner admitted that he possessed a medical marijuana card and had smoked marijuana on March 23, 2022 (“In the case at hand, the Arbitrator observed Petitioner’s behavior and conduct during the hearing and finds him to be a credible witness”). The Appellate Court emphasizes that Employers need more than a “positive” drug test, “the mere consumption or ingestion of an intoxicating substance does not create a valid intoxication defense. Rather, there must be additional evidence that the employee’s intoxication was the proximate cause of their injury (i.e. the injury arose out of the intoxication rather than out of the employment) or that the employee was so intoxicated that the intoxication constituted a departure from the course of employment (i.e. “voluntary intoxication which renders an employee incapable of performing his work is a departure from the course of employment…intoxication of a sufficient degree is viewed as an abandonment of employment, or a departure from employment”).

The Appellate Court in Ramirez found compelling: (1) “The test did not reveal the concentration of cannabinoids in the Petitioner’s blood,” (2) Respondent had no expert testimony regarding the Petitioner’s intoxication, and (3) the Respondent did not present any testimony from witnesses observing the Petitioner to have been intoxicated at the time of the accident.

The Court opined that if Employer relies solely on a “positive” drug test with no indication of “the concentration of cannabinoids in the Petitioner’s blood” to deny workers' compensation benefits as the Employer did in Ramirez, this is sufficient basis to impose penalties and attorney fees (“we believe that the Commission’s reversal of the arbitrator’s award of penalties and fees was against the manifest weight of the evidence. The only evidence of intoxication that the Respondents presented was the positive drug test, which, standing alone, was insufficient to defeat a claim for benefits").

Ramirez can serve as a lesson to Respondents to be prepared with testimony both for payroll records and when seeking to use an intoxication defense. For payroll records, someone with familiarly to the records should be called to testify to lay a foundational basis of the records. Additionally, when seeking to utilize an intoxication defense, either witness testimony regarding the Petitioner’s intoxicated behavior should be presented, or the drug test should indicate the amount of the drug present in the Petitioner’s body at the time of testing to prove intoxication at the time of injury.

Footnotes:

1. 820 ILCS 305/11 ↩