Should We Get the Workers' Comp Commission Ready for Rauner?

Thursday, March 27, 2014 | 0

As we predicted, upstart candidate Bruce Rauner basically came from nowhere to sweep to become the Republican candidate for Governor. The oddest aspect of the primary was the millions spent by government unions to support Rauner’s leading Republican opponent and the phone calls and pleas for Democratic voters to cross over and vote against Rauner, rather than for anyone. The coming fall election in Illinois is starting to take on the appearance of the Governor’s election in the State of Michigan a couple of years ago where both sides spent over $50 million to elect a governor to a post that pays about $175,000 a year. The battlefront isn’t about the job itself; it is about the billions of dollars in contracts and positions the job controls.
 
What is mildly bizarre is the response by veteran politicians to the outcome of the primary. IL House Speaker Mike Madigan has called for a special billion-dollar-plus tax levy on, well, himself and other Illinois millionaires. We assume this is another shot at Bruce Rauner, but we are also sure Mr. Madigan’s personal wealth has to be in the $50 million to $150 million range as he has been in Illinois state politics for decades and makes millions each year off the silly “tax appeal” concept where our Cook County Assessor always overvalues real estate taxes to then have attorneys like Speaker Madigan, Senate President Cullerton and Chicago Alderman Ed Burke step in to have their law office staff attorneys supposedly appeal and “correct” the mistakes and then haul away millions every year in attorney fees. Yes, you might note how crazy and conflicted it sounds for our top state leaders to make millions working to randomly lower real estate taxes for their clients so other taxpayers have to pay even more money to make up the shortfall. One also has to wonder when and if our government leaders might buy Cook County Assessor Joe Berrios one of those new-fangled “computers” so he might get the initial assessments correct and avoid all the appeals, attorney’s fees and uncertainty.
 
Either way, we have never heard of a billion-dollar-plus tax increase being pushed by the incumbent party during an election year. Illinois Democrats are also pushing for a mandatory retirement program for all businesses large and small along with a 21% increase in our state’s minimum wage. It would appear the anti-business, anti-competitive atmosphere in Springfield is going to continue until the fall of this year.
 
From the perspective of the Illinois Workers’ Compensation Commission, we again hope to provide some thoughts on getting “Ready-For-Rauner” if you feel he has a realistic chance to be our next Governor. If it turns out Rauner doesn’t prevail, the same concepts may also serve the continuing administration of the IWCC under incumbent Governor Quinn. There are three issues we see that could be addressed moving forward.
 
First, every single Republican primary candidate said “causation” in our workers’ comp system was their main campaign concern. We have been telling everyone who will listen it is our academic view “causation” in workers' comp can’t be changed by legislation. It is our view that any legislative scheme on the topic that you propose can be avoided by wily administrators and reviewing courts. For example, if you write legislation requiring work be the “sole and primary cause” of a medical problem, a liberal or radical administrator can always rule the work was the sole and primary cause of the medical issue. You tell me how to write commonsense into the legislation and we will happily pass it along to the Illinois State Chamber’s new President-Elect Todd Maisch.
 
Please also note the Appellate Court, Workers’ Comp Division has quietly moved to a new and very liberal causation standard, right before our very eyes. In the recent Village of Villa Park v. IWCC ruling, they outlined an unprecedented criterion that we wholly disagree with. The penultimate reviewing court has indicated the Illinois workers' compensation industry is supposed to look at both “quantitative” and “qualitative” work activities in analyzing an accident or the relationship of a medical problem to work. If you read Matt Ignoffo’s analysis of the Dixon v. IWCC ruling last week, the reviewing court issued a similar analysis in a Rule 23 or “non-published” decision indicating the Appellate Court’s view this concept no longer needs to be promulgated to the larger public—a Rule 23 decision means it is a routine legal concept for this Court.
 
In the controversial ruling in Village of Villa Park outlined above, the “quantitative” risk leading to a compensable or “causally connected” injury was regularly walking on stairs. In the Commission’s nomenclature that was adopted by the Appellate Court ruling, the employer “forced” the employee to walk a flight of stairs about six times each shift. Where is Upton Sinclair when you need him to again reform the Illinois workplace? One of the wags at our office said we should call the Occupational Safety and Health Administration in to investigate the horrible working conditions which require such involuntary servitude climbing stair after stair in this otherwise peaceful Illinois village. Kidding aside, we don’t see how the actions of traversing a staircase six times in an eight-hour shift is either “forced” work or “quantitatively” unusual. Please note the case went to the Appellate Court and resulted in an award of full benefits without any indication or evidence of a safety failure, sudden event or trauma or anything your grandmother might think would be part of a work “accident.”
 
I would challenge any of our readers to create legislation that ends or overrules the concept above. Please note in our view, the model being pressed by the Court and Commission panel is just about impossible to defend, and it is our view millions of Illinois workers walk on staircases six or more times a shift. If that activity defines an accident in this state, most work is similarly “accidental.” In short, to change this concept, you have to have a Commission panel that focuses on traditional accident analysis of an increased risk with some sort of safety failure causing bodily injury.
 
We do feel Workers' Compensation Commission Chairman Michael Latz and newly appointed Secretary Ron Rascia know the issues involved and they continue to work to make sense of our challenging laws and rules. Our concern isn’t with them, it is with the Commissioners who support “quantitative risk” as the basis to define accidental injury for someone who walked on stairs six times in eight hours—would it have been denied if the worker was only “forced” to be on the staircase twice? Four times?
 
Second, we assure all of our readers, clients and friends, the second major issue in getting Ready-For-Rauner or remaining with the current administration is the problem of endless WC claims. We assure everyone the defense team at Keefe, Campbell Biery & Associates can work with you to close your five- to 10-year-old claims much faster than your current defense attorneys. If you want a free audit to give you the needed action plan on your oldie and moldy Illinois claims, send a reply.
 
But even with our hard work and defense strategies, the rank-and-file work-injury claim in the Illinois workers' comp system sometimes moves slower than molasses in January. The “worst” states in the United States for workers’ comp are the states that don’t bring closure to their pending book of claims. In our view, the arbitrators and commissioners should continue their progress to rein in delays and get serious about closure. We long for the day where our computer-savvy arbitrators will hold a pretrial like the judges in federal court and outline a discovery schedule for both sides and then adhere to it. To the extent we have 30 or more arbitrators on salary in Illinois, we have the staff necessary to move claims much more efficiently.
 
Finally, this leads to the last of the major issues we have with Illinois government efficiency. With respect to Chairman Latz and everyone else at the commission, the place remains a bloated bureaucracy. With an annual budget of about $30 million, we feel the commission could thrive and survive on half that much money. There is never a sense of efficiently and effectively spending taxpayer dollars. For one simple example, we still feel there is little need for the three commission “satellite offices” that do little more than print workers’ comp forms that can be accessed just as easily by the public online. We consider it truly odd to have a satellite office in Collinsville that hasn’t been staffed in about two years—why not just get rid of it?
 
So whether you like Bruce Rauner or the incumbent, keep your eyes peeled for developments leading to the November election. In our view, if you like the progress made by the current administration, stick with them and vote Democrat. If you want a change, vote for Rauner who has vowed to “shake up Springfield.”

Eugene Keefe is a founding partner of Keefe, Campbell & Associates, a workers' compensation defense law firm in Chicago. This column was reprinted with his permission from his firm's client newsletter.