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