Madison - St. Clair Record

Thursday, November 21, 2019

AG Madigan sued over refusal to fight work comp claims brought by 'personal assistants'; CMS director says millions have been improperly paid

By Ann Maher | Nov 17, 2015


Millions of dollars have improperly flowed through a state agency that pays benefits to injured state workers to "hundreds" of caregivers who are not legitimate state employees, according to a suit filed Friday in Sangamon County Circuit Court.

Central Management Services director Thomas Tyrell filed the suit against state Attorney General Lisa Madigan, saying she has failed to defend the CMS in certain cases before the Illinois Workers' Compensation Commission.

In particular, the suit claims that Madigan has refused to provide a "complete legal defense" in two work comp claims brought by personal assistant Stephanie Yencer-Price of Springfield in 2011. Personal assistants provide care to individuals with severe disabilities so they can remain in their homes and be as independent as possible as part of the Home Services Program.

Tyrell, represented by attorneys at Brown, Hay and Stephens in Springfield, states that in making a determination whether Yencer-Price was a state employee for work comp purposes, the CMS relied on state law and controlling precedent, including the U.S. Supreme Court decision in Harris v. Quinn reached in June 2014.

In Harris v. Quinn, the court ruled that personal assistants are state employees for one purpose only - "collective bargaining over wages - and that for all other purposes Personal Assistants are private-sector employees," according to Tyrell's suit.

The lawsuit also cites a Sangamon County Circuit Court ruling from April which held that there was no employer-employee relationship between the state and Yencer-Price at the time of her alleged injuries.

An arbitrator handling Yencer-Price's case at the Workers' Compensation Commission found that there appeared to be a conflict between the CMS and Madigan, but stated that he lacked authority to appoint a special assistant attorney general (SPAAG), according to exhibits attached to the suit.

Further, the suit says that state administrative law holds that the employer-employee relationship is between a personal assistant and the customer who is receiving care.

Tyrell claims that Madigan has objected to the appointment of a SPAAG.

"Given the number of Personal Assistants employed in Illinois under the DHS program, and the Attorney General's refusal to defend the administration by informing the Workers' Compensation Commission of the lack of an employer/employee relationship between the State and Yencer-Price (and other Personal Assistants), CMS and the State of Illinois will continue to be harmed by the Attorney General's conduct, and the Workers' Compensation Commission will not have the benefit of accurate information when it makes its determination as to the compensability of Yencer-Price and other Personal Assistants' allegedly compensable injuries," the suit says.

Annie Thompson, deputy press secretary for Madigan, responded with a statement late Monday afternoon.

"We strongly disagree with CMS' allegations and will be responding in court," Thompson said.

The CMS says there are 30,000 personal assistants in the state and that more than 200 of them have filed work comp claims against the state over the past five years, totaling $5.8 million. These awards "inappropriately deplete" funds for claims of legitimate state workers and unnecessarily tax residents, the suit says.

CMS is part of the executive branch under the governor's office and is statutorily responsible for acting as the representative of the Department of Human Services for claims against the state brought under the Workers' Compensation Act.

Tyrell was appointed by Republican Gov. Bruce Rauner.

The suit seeks an order declaring that Madigan does not have the authority to represent CMS in workers' compensation proceedings involving personal assistant if the attorney general fails to defend CMS's decision to deny benefits to non-employees. It also seeks an order giving authority to the Workers' Compensation Commission to appoint a SPAAG to represent CMS in these type of cases.

State Sen. Kyle McCarter (R-Lebanon) said the state needs to prioritize spending.

"It's terribly disappointing that we say we can't fund legitimate payments to our most vulnerable, and we choose not to go after waste, fraud and abuse which this very well could be," he said.

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Organizations in this Story

Illinois Department of Central Management ServicesIllinois State Senator Kyle McCarter (R-54th)Illinois Attorney General