Judges Gone Wild!
Tuesday, February 23, 2010 | 0
By Eugene Keefe
We try to tell our readers the problems with Illinois’ workers’ compensation system is a byproduct of the overall bias in the courts in dealing with the personal injury system. We like to call the workers’ comp system the “red-headed step-child” of the larger personal injury system because Illinois personal-injury Plaintiff attorneys make millions each year while their workers’ comp counterparts make hundreds of thousands. But make no mistake about it; the personal injury plaintiff millionaires unquestionably impact the workers’ comp system.
Why is the composition of the courts so important? Well, they are making it so—in the past; our Illinois Supreme Court in particular looked at workers’ comp as a large piece of smelly Limburger cheese. In the ‘80’s, they created a rule that allowed them to avoid hearing WC appeals unless they wanted to. The justices basically dumped it all on the Appellate Court below. Thereafter, the high court justices wouldn’t handle WC with a ten-foot pole. In the last five-ten years, it appears there are true zealots and liberals on our highest Court who seem to want to reform or re-make the whole workers’ comp process into a hotly liberal image and likeness.
Along with their direct impact, it is our understanding the Supreme Court indirectly affects the outcome because they handle the selection of the appellate justices who make up the Workers’ Compensation Division of Appellate Court. In the last several years, those current appellate justices have written a couple of solid defense opinions. In doing so, they were then forced to watch the Supreme Court accept certiorari and basically every defense opinion, other than Airborne Express, was reversed to insure WC benefits are provided early and often.
We remain stunned to see the Supreme Court even consider a case so minor as Interstate Scaffolding which only had about $5,000 at stake. Legal scholars now feel the ratio of Plaintiff rulings to defense rulings in the reviewing courts in workers’ compensation are running at about 40- or 50-1. Almost all legal defenses are being stripped away by the Illinois courts and no one on in the Illinois defense bar is recommending any appeals because the system is so apparently biased.
For example:
- The statute of limitations in Illinois WC was effectively ended by the ruling in Durand.
- In Cassens Transport, the reviewing courts ruled a claimant getting wage differential benefits could continue to do so even if their post-award income doubled or tripled.
- In Twice Over Clean, our Supreme Court ruled a heart attack that might have happened while a claimant was brushing his teeth was compensable in Illinois.
- In Interstate Scaffolding, the fact claimant committed what might have been a crime while on light duty did not block renewed payment of TTD after he was fired for misconduct.
- Chief Justice Thomas Fitzgerald who wrote the opinion
- Justices Thomas Kilbride
- Justice Charles Freeman
The decision of four members to overturn the medical malpractice caps is almost certain to result in a simple reply from many doctors and specialists—CYA Illinois! If you aren’t sure, one of the reasons for the med mal caps was to get neurosurgeons and doctors who handled troubled pregnancies to return to our state. The sky-high insurance premiums previously pushed many of such practitioners to Missouri, Iowa and Indiana. Expect that migration to begin again. As we advised last week, anyone in Illinois with a closed head injury may soon have to be med-evac’d to St. Louis or Terre Haute—no doctor will touch such a patient to risk getting sued in Metro East by the rabid Plaintiff bar resident there.
As Doug Whitley indicated, this is exactly the kind of Supreme Court ruling that keeps Illinois at the top of the list of “Judicial Hellholes”. Trust us, that personal injury trend bleeds over into workers’ comp outcomes. So why are judges and justices so biased in this state?—well, it appears they are to some extent selected and certainly strongly financially supported by the Plaintiff bar.
Allen Adomite of the Illinois Civil Justice League notes the 20 appellate court candidates running for six spots have raised almost $2 million. He notes Illinois’ personal injury lawyers are legally and heavily funding campaigns with generous contributions, dropping tens of thousands of dollars on appellate court candidates Thomas Hogan and James R. Epstein in Cook County and Mary Schostok in the 2nd District Appellate Court. Another candidate, Mary Katherine Rochford (in Cook County), is partially self-funding with funds from her trial lawyer husband.
Thousands of dollars have found their way from the checking accounts of asbestos lawyers, such as the Alton-based asbestos trial lawyer firm SimmonsCooper, to the campaign bank accounts of Hogan and Epstein. It's 280 miles up Interstate Highway 55 from East Alton to Chicago, in case you were wondering. Partners at the trial lawyer firm of Cooney & Conway have given more than $70,000 to these campaigns. Trial lawyer Michael Schostok lent his wife's campaign $108,000. His law partner Patrick Salvi contributed another $12,000. Clifford Law Offices recently chipped in $10,000 and Power Rogers & Smith donated $5,000. Schostok's opponent, Donna Kelly, has raised $5,075 total.
What ends up happening is Illinois gets a judiciary that is very, very plaintiff friendly. The sense of healthy balance and legal equilibrium from our Circuit, Appellate and Supreme Courts continues to disappear more and more as the years go on. The problem we feel with what is happening on all sides is a litigation-happy and labor-friendly state may become a state without jobs. We assure our readers the wildly liberal rulings in workers’ compensation are a strong deterrent to new jobs coming to Illinois and the creation of existing jobs from current Illinois employers. As we have told you in the past, we feel merit selection of judges and justices has to come to avoid the anomalies of elections run, in large part, based on generous donations of the plaintiff bar.
<i>Eugene Keefe is a principal with Keefe, Cambpell & Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.</i>
Comments