Keefe: Donald Trump Is Here to Stay

Wednesday, November 16, 2016 | 0

The election is finally over and no one will miss the 2106 presidential campaign that was packed with controversy. We have literally thousands of disbelieving folks across the country who can't countenance the outcome.

Eugene Keefe

In my view, this is the first time we have elected someone who is less-than-universally-sensitive to the White House in any number of presidential terms. For the many people who simply don't believe what happened, we assure you Donald John Trump won and will be inaugurated. There is literally nothing you or I can do about it other than to take a deep breath, put on our grown-up pants and adjust.

Please remember one important thing that may be getting lost in all the silliness: Donald Trump isn't an emperor or king. He doesn't have plenary power to do almost anything. He is the president of the United States, and there are lots and lots of limits on the power of that office. The reasons for all the limits and counterbalances are clear: Lots of nutty folks have become president and tried to do stuff either secretly or otherwise to force their will upon the electorate. I assure you that hasn't worked very well. Trump’s power will come primarily from deal-making, if he and his team can make deals.

I also think Trump ran for president not so much because he truly wanted to be president but because he might perceive he is now sort of like king or emperor and has sort of unlimited powers. He will find out very quickly he has to build coalitions, and sell lots and lots of legislators and administrators on his policies and programs.

Outside looking in, I didn't see him doing that very often during his wildly litigious career in business where he used his money and power to sue and be sued to get his way. I assure all of our readers that approach isn't going to work at all from the Oval Office.

So what will Trump do in office to effect change in your life in the claims and work comp industry?

First, our new and fearless leader has vowed to end or greatly change Obamacare, the Affordable Care Act, or ACA. Work comp was in existence long before that concept was put into law and we are sure work comp and our jobs will survive the end of ACA. In my view, the end of Obamacare may create pressure on the work comp system across the United States as medical care continues to rise in cost and scope, making group insurance more difficult to maintain with reasonable costs to business and government.

We are almost certainly going to see a rise in the number of future work comp claims and assume liberal hearing officers in this state and others may open the door to more of what we call "repetitive working" claims.

If you are new to this column, we use the term "repetitive working" to denote a work comp claim where the worker asserts they have pain without the need of an accident, trauma or safety failure on the part of the employer. We remain devoted to fighting such claims when and where we can because they are almost indefensible. Our bodies break down as part of the normal aging process.

Work comp doesn’t work well to cover aging and its pitfalls. Work comp is supposed to be coverage for the unexpected and untoward event where there is some safety issue that an employer can adjust to. We are going to have to watch and see if the end of Obamacare will cause a rise in this sort of questionable claim.

Next, the quiet change coming to a government office near you will be President Trump's ability to select the federal government heads and control the budgets of the major government agencies that hover around the work comp system.

The major government agencies that regularly impact work comp are our Social Security system that has opened up disability benefits, and then Medicare, to more than 1.5 million new claimants under Barack Obama's presidency. 

When he got the job as president, there were about 7.4 million people on SSDI. In 2015, the last reporting period, there were 8.9 million people living off SSDI. Why work when the government will pay your bills, right?

Please remember that after one year on SSDI, you are then eligible for Medicare, which we also consider expensive for taxpayers. If you are unhappy with the wacky level of U.S. government debt that is soon to exceed $20 trillion dollars, we feel under the new regime you may be happy to see folks being pushed to stay at work or return to work and get off the dole. We will have to wait and see.

"Normal" Medicare that is the government's senior citizen health care plan that also operates at a giant cost to taxpayers. We can’t tell whether Trump or Vice President Mike Pence, and their minions may want to tighten Medicare coverage to save dollars. We are sure lots of Americans will beef if that happens. We will see if that battle begins.

The Occupational Safety and Health Administration has been an amazing and growing thorn in the side of U.S. business, with their reporting requirements and then hefty, unpredictable and unappealable fines. We feel OSHA’s rabid approach has raised the stakes on safety across the country. We look to see a lessened impact by OSHA under the new administration. You have to decide whether OSHA can only work in an environment where the government is felt to be on the attack and not working for cooperation.

We are certain the Equal Employment Opportunity Commission saw lots of growth under the outbound administration in creating lots of challenging rules and anti-business litigation.

If you know of the EEOC's forced work comp-related settlements with Sears and other major companies about the Americans with Disabilities Act and reasonable accommodation before implementing auto-termination of injured workers, you would understand how upset some human resources folks can be about the federal government. As Trump wants less government regulation, we feel the role and sweep of the EEOC is certain to diminish under the new administration.

I still feel the ADA is not properly enforced in this country because the EEOC has never forced governments to put injured police, fire, prison guards and other government workers back to work with reasonable accommodation when they can be trained to do the thousands of sedentary jobs regularly available in government. The refusal of the EEOC to do so costs Illinois taxpayers billions in fake government "line-of-duty-disability" pensions. I don't see that changing under the coming administration either, but we will have to see.

U.S. Immigration and Customs Enforcement may soon grow dramatically and get very aggressive under Trump. I feel we can expect a velvet hammer to be used to ensure Americans are working in American jobs, and not undocumented immigrants. We always consider it weird to ask/demand the federal government enforce its immigration laws as written. We also consider it weird to hear politicians like Chicago Mayor Rahm Emanuel pledge his city may be a haven for folks who flout federal immigration laws.

Our firm is now dealing with a challenging Illinois work comp claim from an undocumented immigrant. Does anyone feel an undocumented immigrant who files a claim for work comp could or should be sued in Circuit Court for fraud in the hiring process? Am I the only one who considers it odd to sometimes reward undocumented immigrants in the work comp process?

In summary, please keep  breathing. I feel we are going to have to take a wait-and-see approach to our mercurial new leader. We are sure millions and millions of voters decided to reject Hillary Clinton, whose lengthy political career was at least as odd as Donald Trump's, when one considers she was fired/forced out as Secretary of State to then have our president indicate she would be a solid commander-in-chief when he didn’t want her working with and for him. One has to wonder if she will again run for the same office in 2020, and then 2024 and beyond.

I am absolutely certain we are sure to get a much less genteel and somewhat less sensitive approach from our new federal government. We hope our country, the voters and your business or local government survives and thrives as we do so.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.