11-14-16; Breathe and Keep Breathing--Trump Isn't Leaving; Budget Gridlock Again Arises in Springfield; Voluntary Recreational Injuries Aren't Supposed to Be Compensable, Right? and more

Synopsis: Breathe and Keep Taking Deep Breaths, Everyone. President Donald Trump Is Here to Stay.

Editor's comment: The election is finally over and no one will miss the 2106 presidential campaign that was packed with controversy. We have literally thousands of disbelieving folks across the country who can't countenance the outcome. In my view, this is the first time we have elected someone who is less-than-universally-sensitive to the White House in any number of presidential terms. For the many people who simply don't believe what happened, we assure you Donald John Trump won and will be inaugurated. There is literally nothing you or I can do about it other than to take a deep breath, put on our grown-up pants and adjust.

Please remember one important thing that may be getting lost in all the silliness--Donald Trump isn't an emperor or king. He doesn't have plenary power to do almost anything. He is the President of the United States and there are lots and lots of limits on the power of that office. The reasons for all the limits and counterbalances are clear--lots of nutty folks have become President and tried to do stuff either secretly or otherwise to force their will upon the electorate. I assure you that hasn't worked very well. Trump’s power will come primarily from deal-making, if he and his team can make deals.

I also think Donald Trump ran for President, not so much because he truly wanted to be President but because he might perceive he is now sort-of like king or emperor and has sort-of unlimited powers. He will find out very quickly he has to build coalitions and sell lots and lots of legislators and administrators on his policies and programs. Outside looking in, I didn't see him doing that very often during his wildly litigious career in business where he used his money and power to sue and be sued to get his way--I assure all of our readers that approach isn't going to work at all from the Oval Office.

So What Will the Trump-ster Do in Office to Effect Change in Your Life in the Claims and Work Comp Industry?

First, our new and fearless leader has vowed to end or greatly change Obamacare--the Affordable Care Act or ACA. Work comp was in existence long before that concept was put into law and we are sure work comp and our jobs will survive the end of ACA. In my view, the end of Obamacare may create pressure on the work comp system across the United States as medical care continues to rise in cost and scope making group insurance more difficult to maintain with reasonable costs to business and government. We are almost certainly going to see a rise in the number of future work comp claims and assume liberal hearing officers in this state and others may open the door to more of what we call "repetitive working" claims.

If you are new to this column, we use the term "repetitive working" to denote a work comp claim where the worker asserts they have pain in their [insert body part] without the need of an accident, trauma or safety failure on the part of the employer. We remain devoted to fighting such claims when and where we can because they are almost indefensible--our bodies break down as part of the normal aging process. Work comp doesn’t work well to cover aging and its pitfalls. Work comp is supposed to be coverage for the unexpected and untoward event where there is some safety issue that an employer can adjust to. We are going to have to watch and see if the end of Obamacare will cause a rise in this sort of questionable claim.

Trump Will Select and Hire Federal Government Agency Leaders—Such Change is Certain

Next, the quiet change coming to a government office near you will be President Trump's ability to select the federal government heads and control the budgets of the major government agencies that hover around the work comp system. The major government agencies that regularly impact work comp are:

      Our Social Security system that has opened up SSDI benefits and then Medicare to over 1,5 million new claimants under Barack Obama's presidency. When he got the job as President, there were about 7.4 million people on SSDI. In 2015, the last reporting period, there were 8.9 people living off of SSDI. Why work when the government will pay your bills, right? Please remember, after one year on SSDI, you are then eligible for Medicare that we also consider expensive for taxpayers. If you are unhappy with the wacky level of U.S. government debt that is soon to exceed $20 trillion dollars, we feel under the new regime you may be happy to see folks being pushed to stay at work or return to work and get off the dole. We will have to wait and see.

      "Normal" Medicare that is the government's senior citizen healthcare plan that also operates at a giant cost to taxpayers. We can’t tell whether Trump and Pence and their minions may want to tighten Medicare coverage to save dollars. We are sure lots of Americans will beef if that happens. We will see if that battle begins.

      OSHA has been an amazing and growing thorn in the side of U.S. business with their reporting requirements and then hefty, unpredictable and unappealable fines. We feel OSHA’s rabid approach has raised the stakes on safety across the country. We look to see a lessened impact by OSHA under the new administration. You have to decide whether OSHA can only work in an environment where the government is felt to be on the attack and not working for cooperation.

      We are certain the EEOC saw lots of growth under the outbound administration in creating lots of challenging rules and anti-business litigation.

o   If you know of their forced work-comp-related settlements with Sears and other major companies about ADA and reasonable accommodation before implementing auto-termination of injured workers, you would understand how upset some HR folks can be about the federal government. As Trump wants less government regulation, we feel the role and sweep of the EEOC is certain to diminish under the new administration.

o   I still feel the Americans with Disabilities Act is not properly enforced in this country because the EEOC has never forced governments to put injured police, fire, prison guards and other government workers back to work with reasonable accommodation when they can be trained to do the thousands of sedentary jobs regularly available in government. The refusal of the EEOC to do so costs Illinois taxpayers billions in fake government "line-of-duty-disability" pensions. I don't see that changing under the coming administration either but we will have to see.

      ICE or U.S. Immigration and Customs Enforcement may soon grow dramatically and get very aggressive under DJT. I feel we can expect a velvet hammer to be used to insure Americans are working in American jobs and not undocumented immigrants. We always consider it weird to ask/demand the Federal Government enforce their immigration laws as written. We also consider it weird to hear politicians like Chicago Mayor Rahm Emanuel pledge his city may be a haven for folks that flout federal immigration laws.

KCB&A is now dealing with a challenging IL work comp claim from an undocumented immigrant--does anyone feel an undocumented immigrant who files a claim for work comp could or should be sued in Circuit Court for fraud in the hiring process? Am I the only one who considers it odd to sometimes reward undocumented immigrants in the work comp process?

In Summary, Please Keep Breathing!

I feel we are going to have to take a wait and see approach to our mercurial new leader. We are sure millions and millions of voters decided to reject Hillary Clinton whose lengthy political career was at least as odd as Donald Trump's when one considers she was fired/forced out as Secretary of State to then have our President indicate she would be a solid commander-in-chief when he didn’t want her working with and for him. One has to wonder if she will again run for the same office in 2020 and then 2024 and beyond.

I am absolutely sure, we are sure to get a much less genteel and somewhat less sensitive approach from our new federal government. We hope our country, the voters and your business or local government survives and thrives as we do so.

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Synopsis: Moving from the Federal Government to Illinois State Government, We Still Have Budget Deadlock in Springfield That Threatens Basically Everything in Nutty State Government.

If you don't remember, Governor Rauner approved what was called a "stop-gap" budget plan to get through the election and to the end of the calendar year. Everyone in IL state government is back on tenterhooks worry about how State government may continue to operate without a budget. We note former Comptroller Leslie Munger lost in her re-election run and was replaced by a new comptroller completely loyal to our reigning IL megalomaniac, House Speaker Mike Madigan.

All of the uncertainty and battling renders Illinois government even more precarious. Our State government has about $163B in debt and something like $10B in pending/unpaid bills. Both amounts continue to spiral every minute of every day. With respect to Governor Rauner and all the members of the General Assembly, we hope they can figure out a plan to make across the board budget cuts and start to make sense of government in this state before it collapses under its own weight.

Chicagobusiness.com says Illinois government is nearing $14 million in unpaid bills along with $163B in debt. State government is relying on the short-term stopgap measures to fund essential services because our General Assembly and Governor have not approved a spending plan in two years.

Gov. Rauner continues to insist he will agree and sign off to raise taxes to “sort-of” balance the budget only if Madigan supports his “Turnaround Agenda,” which includes a few workers’ compensation reforms and limits on unions and collective bargaining. As I have told our readers repeatedly, the proposed WC reforms aren’t going to change much, if anything.

Bruce Rauner personally donated or gave from his political fund at least $41.4 million to unseat Democratic legislators, the news website reported. In response, five Democrats in the Illinois House lost their re-election bids, while the Democrat party recorded one pickup seat. The overall election ended cutting Speaker Madigan’s majority from eleven to seven lawmakers, ending the supermajority previously in place.

Madigan appears to have forgotten the fact he “cooked the books” by unquestionably gerrymandering many districts. Lots of his returning legislators ran unopposed because there was literally no chance for anyone, even with an unlimited budget to unseat them. Speaker Madigan blocked any chance at fair districting when he used his favorite lawyer to appear before his favorite judges/justices to toss out the signatures of about 550,000 signers wanting to take away Madigan’s power to set and reset districts until many of our votes become meaningless. Speaker Madigan ignored the challenged districting to claim the arguably rigged election was a referendum in favor of both him and a Democratic-controlled House. In response, Governor Rauner said taxpayers deserve a balanced budget and job growth.

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Synopsis: Injuries from Voluntary Recreational Activities Aren’t Compensable In IL WC But It Isn’t a Rule If We Don’t Enforce it.

Editor’s comment: Former Calumet Middle School Teacher was just awarded IL Workers’ Comp benefits for broken arm during an after-school basketball game. The Illinois Appellate Court, WC Division ruled a middle school science teacher was entitled to workers' compensation benefits for his injuries from participating in a recreational game against a group of students in an after-school basketball program.

In Calumet School District #132 v. IWCC No. 1-15-3034WC, issued 11/10/2016, Claimant Jordan worked as a science teacher at Calumet Middle School. He testified the school principal asked him to participate in an after-school basketball program for the students. The program had students play against the teachers, and Jordan suffered a broken arm during his first game.

The Arbitrator found Claimant Jordan was entitled to benefits for his injury. The Illinois Workers' Compensation Commission upheld this decision, but the Circuit Court judge reversed. The judge found Jordan was injured while participating in a "voluntary recreational program," and the injury was therefore not compensable.

Section 11 of the Illinois Workers' Compensation Act is one of the few statutory defenses in the IL WC legislation. In our view, it is regularly circumvented at the IWCC and reviewing courts. The provision provides "injuries incurred while participating in voluntary recreational programs … do not arise out of and in the course of the employment," unless the injured employee "was ordered or assigned by his employer to participate in the program." We feel that rule is fairly clear—if you are ordered or assigned to attend and get injured, you are covered under WC if injured. If you aren’t ordered or assigned, you aren’t covered.

We tell our law students and readers rulings like this indicate how hard it is to “reform” the IL WC system because crafty litigators and willing claimants know how to easily circumvent any defense if the hearing officers don’t stick to the simple wording of the legislation.

In this claim, it appears clear there was no documentation of Claimant being ordered or assigned to play basketball. There is no dispute Claimant Jordan "was not a basketball player and did not want to participate in the student/teacher basketball games." These parties also agree Claimant Jordan "repeatedly tried to avoid having to participate in the games."

To create compensability, Claimant asserted the school principal "repeatedly pressured him to participate in the games," and he “gave in” because "he was concerned that if he again declined to participate, it might reflect badly in his performance review, and he might not be offered a position for the next school year," the appellate ruling said. The Court concluded this evidence "is sufficient to support a finding that the claimant did not participate in the basketball game for his own 'diversion' or to 'refresh' or 'strengthen' his spirits after toil and that he, therefore, was not engaged in a 'recreational' activity under Section 11 of the act at the time of his injury."

In our respectful view, we hate to see the Appellate Court say “might” over and over again. To our chagrin, there is no mention of Claimant being a union member and he is made to appear as a defenseless waif. It appears this claim is compensable as Claimant “might” have had a problem with his supervisor that his union couldn’t have remedied. Further, Claimant “might” have not been rehired, as his union “might” have cast him adrift. In a similar vein, Claimant “might” be the Easter Bunny or Santa Claus but the taxpayers in Calumet City are now going to have to pay him about $25,000 for his injured arm. We are sure that money could have been put to better use in this financially strapped school district.

From our perspective, Claimant’s state of mind shouldn’t be allowed as evidence to circumvent a clear and simple rule. There is literally no evidence of Claimant being ordered or assigned to participate in what was unquestionably a recreational activity. When Claimant whined about being “repeatedly pressured” to participate, he could have “repeatedly refused” or sought assistance/representation from his union reps to insure the pressure stopped.

For the school districts and other risk managers who read this KCB&A Update, please note the sad outcome of such rulings is to greatly limit recreational activities by your staff to avoid facing the suppositions, possibilities and “mights” from future IL WC decisions. We have a form for your consideration to have participants sign to affirm their participation is voluntary and then are not required to partake—if you want the form, send a reply.

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