Is it Actually Possible to Kill Children and Collect Comp in this State?

Friday, October 8, 2010 | 0

Is it actually okay to kill children, plead guilty, be convicted for doing it and then claim workers’ compensation benefits in this state?
 
One continuing bee in everyone’s bonnet on the defense side of Illinois law is how little the Workers' Compensation Commission and our reviewing courts ostensibly care about someone seeking workers' compensation benefits for injuries that occur while committing a crime. Is this something the courts and Commission choose to ignore unless and until the legislature takes it up? Aren’t we lawyers? Aren’t we sworn to uphold the laws and Constitution of this state and the United States? Don’t we owe the citizenry we serve more than this?
 
We feel there is a continuing problem with illegal drug use claims—it remains against state and federal law for someone to possess and use marijuana or cocaine. When an injured worker used illegal drugs at work and walked into an open hole to fall and suffer paraplegia, the Commission gave and the reviewing courts affirmed a total and permanent disability ruling. These rulings never even mention the violations of Illinois and federal law. There are any number of such cases but the last reported claim is Szarek v. Workers’ Compensation Commission. Several million in WC benefits may be paid out to this drug abuser who created an unnecessary risk to himself, his co-workers and the public.
 
In Bassgar, Inc v. Workers’ Compensation Commission, claimant and his supervisor got into a fight. Claimant was convicted of battery by a Circuit Court. The Commission and reviewing courts indicated the battery conviction did not bar recovery of full workers’ compensation benefits and full benefits were awarded.
 
In Interstate Scaffolding v. Workers’ Compensation Commission, one of the most problematic rulings in Illinois workers’ compensation history, claimant clearly admitted he was scribbling/spraying religious graffiti on equipment in the workplace which is clearly vandalism. He was fired for doing so. The problem the employer had was claimant was on light duty at the time. Our Supreme Court took a claim with only $5,000 at stake. Trust us; they never take claims with such miniscule amounts at issue unless the Illinois Trial Lawyers Association is involved. From our view, defacing property apparently isn’t a problem for our Supreme Court in the workers’ compensation arena. They reversed the ruling below and ordered claimant to be paid full temporary total disability benefits until he reached MMI. With respect to the members of the court, we consider this judicial decision from our highest court to encourage crime in the workplace. Is there any question claimant was “rewarded” by the ruling because he gets a paid vacation for actions that would otherwise be breaking the law?
 
Now, we hear from at least ten readers there is another convicted criminal trying to slop at the trough of Illinois workers’ compensation. In 2007, an Illinois state trooper killed two teenage sisters in a high-speed collision, driving 126 mph. Evidence allegedly indicates he was driving and simultaneously sending e-mails and speaking to his girlfriend on his cell phone. We all have to be thankful former trooper Matt Mitchell didn’t blindly run into a school bus full of kids or a church or synagogue full of worshipers. We are shocked to learn he has retained counsel and has filed a workers' compensation claim for injuries allegedly sustained in the fatal crash.
 
What is scary to contemplate is Mitchell, who pleaded guilty to reckless homicide and reckless driving, could have thousands of taxpayer dollars coming to him as workers’ comp benefits while the taxpayers also have to pay out millions to the families of the loved lost in the personal injury action.
 
Not surprisingly, his workers’ comp claim has infuriated the family of Kelli and Jessica Uhl, who were 18 and 13, when their vehicle was struck head-on by his patrol car the day after Thanksgiving 2007. Thomas Q. Keefe (no relation to your editor), the attorney for the family said: "At least at the beginning, he was a disgrace to his uniform, now I believe he is a disgrace to the human race." Two other girls, passengers in the car, were also seriously injured. As we indicate above, Plaintiffs and their lawyer are seeking millions in damages from the Illinois State Police for Mr. Mitchell’s criminally reckless actions and they will almost certainly get it.
 
Without intending to decide the pending workers’ compensation litigation, we certainly hope the arbitrator and Commission carefully consider the claim. Following Attorney Thomas Keefe’s thoughts, we consider it a disgrace to the profession of law to hear there is a claimant attorney who practices in southern Illinois that is desperate enough to file this claim for a child-killer who pleaded guilty to reckless homicide.
 
We are even more shocked to read the discouraging article in the Belleville News-Democrat that interviewed and quoted three petitioner-plaintiff attorneys who all confirmed their view that criminally reckless behavior killing two children and severely injuring two more wouldn’t bar workers’ compensation benefits. The article contains a picture of one of the beautiful girls tragically killed. To the extent these petitioner-plaintiff attorneys commented, analyzed and effectively “decided” their skewed view on the issue of compensability of pending litigation, we completely disagree and consider their opinions to be misguided and embarrassing to all Illinois lawyers, hearing officers and judges/justices. We feel claimants who admit they committed crimes and recklessly endangered or killed innocent men, women and children should not be rewarded and receive Illinois’ generous WC benefits. We don’t consider it to be difficult for our Commission and reviewing courts to implement the concept—they just have to have the drive and will to do so.
 
One thing you may note if you research Illinois law on injuries occurring during criminally reckless behavior is there aren’t many rulings from which to pick. Like the facts in Interstate Scaffolding, we feel the reason for the dearth of such rulings is claimant attorneys in this state used to police themselves and not file claims in such situations. It appears that may have changed. It is our hope the members of the petitioner-plaintiff bar quietly change it back, as we feel no one needs attorneys fees from someone who puts our families and friends at such risk.

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