Texas Hold 'Em in Illinois Workers' Comp Reform
Friday, February 4, 2011 | 0
We truly feel the workers' compensation reform process in this State is getting weirder and weirder. It has the feel of a poker game; please read on and see if you agree.
There is no question in our minds the hole cards are being dealt with the Illinois labor and plaintiff/petitioner bar getting a pair of aces and Illinois business getting a non-matched two of clubs and six of hearts. When we say pair of aces for Illinois labor, we mean they have dominant control of the table. Occasionally a six and two will catch the right cards and win but odds are, this system isn’t balanced.
In the last decade, it is our view our Illinois Appellate Court, Workers’ Compensation Division has written a single defense ruling that hasn’t been reversed by the Illinois Supreme Court. The single pro-business decision was Airborne Express v. Workers’ Compensation Commission and was decided in 2007. In fairness, the Appellate Court will affirm IWCC factual rulings for the defense under the manifest weight of the evidence standard. But when they interpret the law, it is our view they are overwhelmingly pro-labor in ruling after ruling.
If you do the scorecard on such outcomes, the members of the Appellate Court, Workers’ Compensation Division issue about 300 rulings in a decade, so for the last ten years, we feel Illinois Labor is about 300 to 1 on winning cases which interpret our workers’ compensation law in the Appellate Court. In our view, for well over a decade, there is no member of the five-member panel who openly or even quietly supports the interests of Illinois business. Again, in our opinion, the last justice assigned to the Appellate Court, Workers’ Compensation Division who did so was Justice Allan Stouder who hasn’t been on an Illinois workers’ compensation appellate panel during this century.
Ruling after ruling from the Appellate Court panel has led to things like:
- A police officer turning to answer questions is somehow involved in an “accident in Illinois from the ruling in City of Aurora vs. IWCC;
- A firefighter injured wrestling with another firefighter like school boys in a hotel room didn’t participate in “horseplay” and got full benefits for what was ruled a work accident in Smith v. Downers Grove Fire Department.
- An injured worker on light duty fired for spraying graffiti on workplace equipment was ruled to be immediately entitled to temporary total disability benefits in Interstate Scaffolding vs. IWCC;
- Running into a vending machine is now an accident in this state because the worker was found to be a “Good Samaritan” as if he was saving someone’s life in an emergency to dislodge a bag of Doritos (???) from Circuit City Stores v. IWCC.
- A flight attendant who strained her arm putting on her coat was given full benefits in Leung v. United Airlines.
Right now, the Workers’ Compensation Commission itself was given that name about ten years ago by a former plaintiff/petitioner attorney who was our chairman. His assistant later took over the chairmanship until the current chairman, who is a former petitioner attorney, took the job. The eight sitting commissioners populate three different panels comprised of two pro-labor members and one pro-business member who is politely allowed to file dissents. None of the three administrative appeal panels have a “public” member who is pro-business. Sounds like a pair of aces at this level also.
The arbitrators in this state are fair adjudicators in our experience, but we again have to point out many of them are former plaintiff/petitioner attorneys who generally lean in the direction of the Petitioner in many instances. We feel we get much better results with Arbitrators in pre-trials because “when push comes to shove” the message at the Arbitration level is to be pro-Labor and liberal. Sounds like a Pair of Aces for Illinois labor at the Arbitration level to us.
The Flop
In Texas Hold ‘Em, this is three cards considered a pivot point in any hand. The cards represent a major change in the futures of every player. We submit to you we stand at this “pivot point” with our workers’ compensation system of benefits in Illinois. As such, we were somewhat surprised to hear the following from the other side of the workers’ compensation matrix—can it be possible the claimant bar may want to toss the whole Illinois WC system in?
We read an article written by the section head of the Illinois State Bar Association who is a very solid plaintiff/petitioner attorney and intimately involved in the current reform process. He suggests some of the more significant changes proposed by the Illinois State Chamber would so unfairly prejudice Illinois labor, the workers of Illinois would be better served in a traditional Circuit Court venue under traditional tort law.
The article in the current February 2011 ISBA WC Section Newsletter says, in part:
It must also be noted that the Illinois Chamber of Commerce is proposing changes which are more radical than those introduced in December. The intent of the Act was to place the burden of treating the injured worker on the employer, not the employee or the State. With the proposed changes, the employee will have a greater burden of proving his injury than if he were proceeding on a tort theory in the Circuit Court. If the employee is struck by a cart at work and he is a diabetic who does not heal, the primary cause of his not healing will be his diabetes. The thought that an employer takes his employee as he finds him will be legislatively stricken from the case law. If that same employee was making a delivery at another factory and was struck by the cart he and his spouse would at least have a lesser burden of proving his injury and sequalae were the result of the second employer’s negligence and he will be compensated for pain and suffering, loss of consortium, disability both temporary and permanent and loss of earning capacity.
I would rather see the Legislature abolish the Workers’ Compensation Act and I’ll take my chances with a jury. Let the jury reduce the award by the amount of comparative negligence. At least with the tort law we would have a level playing field.
With greatest respect to this academician with 37 years of practice, we think the petitioner/plaintiff bar should be careful what they ask for. We completely disagree with the phrase “the employee will have a greater burden of proving his injury than if he were proceeding on a tort theory in the circuit court.” Please look at the bulleted list in the Appellate Court analysis above. Those five rulings were listed there because not a single one of them involves any negligence of any kind by the employer. None—in our view, all of those cases would be dismissed on motion if a negligence action were filed. In fact, we submit most work-related injuries occur due to either the negligence of the worker who was hurt or no identifiable negligence at all (e.g., a hurt shoulder or back while simply lifting).
When you consider this attorney’s “diabetes” analogy, we just received an Appellate Court ruling we consider almost impossibly shocking. In Barrington Orthopedics v. Workers’ Compensation Commission, (1-09-3196WC, issued Jan. 24,) claimant had low back problems for at least six years. More than a year prior to starting work at the doctor’s offices, she underwent low back surgery. The record indicated the surgery didn’t help at all and she had exacerbation after exacerbation, again prior to starting work for the docs. She began work at the doctor’s office Aug. 3 and spinal fusion surgery was recommended Aug. 24. On Nov. 17, 2006, she claimed she made a misstep but didn’t fall.
From our review of the Commission and Appellate Court rulings, there is no defined defect in the premises which caused or contributed to the fall—it is possible defense counsel stipulated the event was compensable. We disagree with this approach but there is no question the incident was so minor, she didn’t need any medical care of any kind on the date of injury—she had no bumps, cuts or bruises. She obviously walked away from the worksite and went home without further incident. She never actually got any emergency or first aid on Friday or over the weekend for what most folks would consider a very, very minor misstep. Guess what, the Commission and now the Appellate Court have ordered $148,000+ in medical bills and the equivalent of $100,000 in past and future temporary total disability. To our understanding, she has never been back to work so Barrington Orthopedics will have an employee who worked as an admin for them for about three months who they may now owe millions of dollars. All of this for a simple misstep which didn’t cause a fall or require any defined change in her medical care!!
To be precise, an employer is arguably negligent when the employee can show a lack of due care. Not a single one of those rulings involves any lack of safety, instruction or “due care by the employer. All of them involve voluntary actions and decisions that should be wholly the employee’s risk. For example:
- You can’t prevent or train a police officer to be more “careful” in turning around to answer questions. Injuries suffered doing such things used to be your own problem—under this administration, employers are now paying millions for such things;
- We are very confident the fire protection district did not want its officers wrestling like school kids and if they wanted to wrestle, they should do so at their own risk;
- Spraying graffiti in the workplace shouldn’t result in payment of benefits following termination, as if the worker were just injured—the employer already accommodated the troublemaker;
- Deciding to run and jump into a vending machine should be done at your own risk; and
- How can an employer do anything about an “accidental injury” putting on your own coat?
We are not completely happy with all the proposed reforms but we want all of our readers on both sides of the matrix to understand one thing—Illinois cannot survive and thrive as a state if we are going to provide global coverage of every human malady under our workers’ compensation system. We have to have limited coverage for “real” accidents only. From Zion on the north to Mound City on the south, from Danville on the east and Quincy on the west, we are destined to fail as a State if we dont start to bring the “self-limiting” requirement of having an actual work-related accidental injury back into our Workers’ Compensation Act. If we can’t and wont do it, maybe this author and veteran claimant attorney has a painful but proper option—flush it all down the drain and just sue in Circuit Court when the employer arguably does something unsafe.
If you look at this “Flop,” we want to tell everyone, as ad hoc and self-appointed representatives of our clients and readers and the entire Illinois workers' compensation business community, if you want to drop the entire workers’ compensation concept and move to Circuit Court, we are “All In” and happy to agree. Please use Outlook to vote yes to vote to drop and no to vote to keep the current system—we will report our results next week.
The Turn
Please understand the great State of Texas has a middle-ground everyone on both sides in Springfield might want to consider. What the Texas system has which might work for our state is an “opt-out” provision that would be in-between having every work injury go to the Circuit Court, as this veteran plaintiff/petitioner attorney now seeks. What employers in Texas can do is to weigh their own safety programs and the nature of the work they do and decide at the beginning of the year whether they want to be in the workers’ compensation system or opt-out and let their employees sue in Circuit Court for any injury. They have to insure for either and make their choice clear to their workers.
Why does Texas have this option? We consider it simple common sense; If the employers perceive the Texas workers' compensation administrative folks are going to be reasonable and fair and smoothly close cases, employers pick their equivalent of our Commission. If the employers feel the Commission is bent on affording benefits for even the most innocuous of tasks (e.g., putting on a coat), they can take their chances in the courts.
The problem we perceive the Illinois workers' compensation system is the slow-creeping expansion of what is an actual “accident” at work. The decisions we reference above would not have been awarded in decades past. Even 10 years ago, the idea of “repetitive trauma” in the form of prolonged driving or standing would not have been awarded. Today, these are routine claims for what the employers perceive as activities of daily living –the problem is, the claims are awarded.
Many of the successful claimant attorneys basically present a “take-your-medicine” approach to discussing even the most questionable claims with defense counsels and insurance folks. They will cite what we feel are unfair rulings by the Appellate Court, tell you they respectfully disagree and then throw their hands up in the air and tell you it isn’t their fault, they are going to have to follow the law and award substantial benefits. Most of our clients don’t like to be told they have no choice and to take-their-medicine and eat thousands or hundreds of thousands in benefits, like the Barrington Orthopedics case outlined above. If that is all we can offer, they are happy to opt out to a different path.
The River
Our main goal is to try to avoid having Illinois turn into states like Michigan or Nevada where jobs are becoming more and more scarce. The new personal and corporate tax increases have caused all of our sister states to try to openly pull jobs out of Illinois. We are also certain new job creation is going to be tougher and tougher in a state which has some of the highest workers’ compensation benefits of the United States.
In the end, we don’t support such a radical change that would eliminate the Commission entirely, nor do we believe the section head of the Illinois State Bar Association's Workers’ Compensation Section truly advocates a return to the Circuit Courts to adjudicate cases, but we respect him for putting it out there as a consideration.
Gene Keefe is a founding partner of Keefe Campbell and Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.
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