Jay Shattuck, the executive director of the Employment Law Council at the Illinois Chamber of Commerce, says one of those is the polarizing political climate in the state.
He points out that while there is bipartisan recognition that the current workers’ compensation system makes the state less competitive, the supermajority Democrats in both the House and Senate have so far supported the “bad case law that employers are suffering under right now.”
Shattuck adds that Republican Gov. Bruce Rauner has pushed workers’ compensation reform as one of his top priorities for economic development. He has even attempted to leverage the issue during the state’s annual budget-making process.
“What we’re finding is that organized labor, trial lawyers and some of the professionals in the medical community are okay with the current status,” Shattuck said. “Or they would like to expand upon on the law and make it even tougher for employers.”
Other proponents of workers’ compensation reform like Eugene Keefe say that the Illinois Workers Compensation Commission has made questionable decisions, which also makes the possibility of change less likely.
Keefe, a founding partner of Keefe, Campbell, Biery & Associates, LLC, a workers’ compensation defense firm in Chicago, points to a recent case involving Robert Hillmann, who worked for the city’s Department of Streets and Sanitation for nearly three decades until July 2002, when his position was eliminated in a citywide reduction in force. He sued the city two years later, alleging that he was discharged and previously denied merit raises for asserting his rights under the Illinois Workers’ Compensation Act and Americans with Disabilities Act.
Hillmann claimed that he developed cervical radiculopathy, a work-related injury that caused pain and weakness in his right arm, in 1984. He later entered into an accommodation agreement with the city that allowed him to avoid repetitive work with his arm.
Hillmann switched positions multiple times over the next several years due to an alleged worsening of his condition. In 2000, he initiated proceedings before the Illinois Workers Compensation Commission.
In April 2007, an IWCC arbitrator found that Hillmann was “medically permanently and totally disabled from any form of gainful employment as of September 4, 2002.” As a result, he was awarded $716.86 per week in permanent total disability benefits for life, starting on Sept. 4, 2002. In December 2007, the IWCC affirmed and adopted the arbitrator’s decision and its award in its entirety.
His lawsuit against the City of Chicago moved up the courts to the U.S. Court of Appeals for the Seventh Circuit, which ruled on Aug. 23, that he had no evidence that the reduction in force decision-maker knew about his IWCC claim or that the city targeted him due to his ADA accommodation. A $1.6 million award that he received from the lower court, unrelated to his IWCC benefit, was reversed.
“There was no injury with the arm, he just said my arm hurts,” Keefe said. “I don’t agree that’s an accident. I don’t agree that he should’ve gotten a dime.
“But he was able to get a permanent total disability award that will pay him for the rest of his life.”
G. Steven Murdock, a partner at Inman & Fitzgibbons in Chicago, who focuses on workers’ compensation defense, contends that Illinois courts have also become “very liberal” when interpreting what is and isn’t covered by the IWCA.
“The act is not very big, but the case law used to define the provisions in the act could probably fill six floors of office space,” he said. “The case law has really been, for the most part, good at defining most of it, but we’ve gotten to the point now where we’re starting to get conflicting case law on issues.”
One of those cases, Will County Forest Preserve District v. IWCC, involved an employee who injured his right shoulder, and underwent surgery and physical therapy. His doctor cleared him to return to work, but another doctor claimed that the right shoulder injury caused permanent partial disability to his right arm.
The arbitrator, commission and circuit court agreed the employee should receive a 25 percent person-as-a-whole award under the IWCA. The Illinois Appellate Court also held that permanent disability for injuries to the shoulder should be paid based upon loss of use of a man as a whole.
“For the last 100 years, a shoulder injury is always part of the arm,” Murdock said. “So when he was awarded benefits, the award would be for a percentage loss of use of his arm.
“The appellate court decided that’s not the way it should be. The shoulder is really part of the torso, part of the whole person.”
Murdock explains that the decision will alter the way in which the IWCA provides a “credit” to an employer for a second, third or successive injury from any prior settlement or award. In Illinois, he says, an employer does not receive credits for partial loss of use of a whole person.
In another case, Interstate Scaffolding, Inc., v. IWCC, an injured worker who was receiving temporary partial disability benefits was fired for writing religious slogans on a wall in a storage area. His employer refused to pay his benefits after his termination and an arbitrator agreed with the employer. However, the IWCC modified the arbitrator’s decision and awarded benefits to the employee.
After disagreement between the circuit court and the appellate court, the Illinois Supreme Court heard the case and decided that the employer remains obligated to pay workers’ compensation benefits to an employee – even if he or she is fired – until the employee’s medical condition stabilizes and the employee reaches maximum medical improvement.
Murdock contends that outcomes like these show that Illinois cannot depend on its courts for workers’ compensation reform.
“It’s such a loggerhead down in Springfield and hard to get anything done, but the legislature needs to come in and say what do we really mean by this?” he said.
Shattuck, who has been involved in some discussions and working group meetings with the governor and legislature, says he expects a renewed focus on workers’ compensation reform after the election.