6-19-2017; The Capitol Compromise and What It Might Mean to IL WC; Tim O'Gorman Reports on Fed FMLA Ruling of Note; Leo Hennessy, RIP and more

Synopsis: Can the IL General Assembly Reach a Capitol Compromise??

Editor’s comment: We are advised several folks in Spring-Nuts, I mean Springfield, came to the realization our IL State Government’s lack of a state budget for the last several years was causing irrevocable financial damage with threats to continued government viability. If the dysfunction continued, one could forecast both the media and taxpayers basically coming to “revolt” during the next election to try to oust everyone involved. These concerns caused major forces to come to bear to try to pull the two warring sides together.

At present, any budget agreement will require a “super-majority” that I understand puts the Republican General Assembly minority in something of a “driver’s seat” position. Republicans appear to be making proposals that have the potential to be passed and signed into law by Governor Rauner. And when Republicans make the legislative proposals, it gives the Democrats “plausible deniability” when cuts, caps and freezes are being made.

Accordingly, one day after both IL House and Senate Republicans presented a compromise balanced budget plan to end the budget roadblock, Governor Bruce Rauner called lawmakers back to Springfield for a 10-day special session from this Wednesday, June 21st through the June 30th fiscal year deadline. Please note Moody’s and other bond-rating agencies have pointed to June 30 as the date the guillotine will fall on our State’s bond rating and their continued ability to borrow to remain fiscally viable.


The compromise from IL State Republicans has been titled "The Capitol Compromise" and includes a balanced budget with spending caps, property tax relief, workers' compensation reform, government consolidation, education reform, term limits, and pension reform. The balanced budget incorporates


·         A four-year “hard” State Gov’t spending annual cap at $36 billion;

·         Approximately $5 billion in spending reductions;

·         Savings from reforms to pensions, state employees' group health insurance and procurement;

·         A real estate property tax freeze;

·         Across-the-board reductions to most state agencies and all branches of State government; and

·         Other changes including paying down some of our State’s backlog of over $4 billion in unpaid and pending bills.


The property tax freeze caps local property tax levies for four years instead of a “permanent” freeze and allows for both exemptions for existing debt service payments and for voters by referendum to lower or raise levies or renew the freeze in increments up to four years.


The workers' compensation reform proposed by State Republicans deals with


      IL WC Medical Fee Schedule “corrections” that use Medicare rates as one-time baseline benchmark;

      Increases the TTD waiting period from 3 to 5 days;

      Tries to clarify definitions for commonplace injuries to ensure consistency in applying credits for repeat injuries;

      Holds the max PPD rate at its current level for 4 years;

      Creates a closed drug formulary; and

      Poorly attempts to clarify when a “traveling employee” is not covered under the IL WC Act  


From our perspective as defense lawyers, we are currently unsure of the impact of the proposed IL WC Medical Fee Schedule “corrections.” If you understand the impact, please send a reply. We are sure there will be a mild savings in making the TTD waiting period longer.


To our understanding, if this IL WC reform is passed and signed into law, the “shoulder” or injuries/treatment to the shoulder will soon again be awarded based on LOU of the arm. A similar change will also insure the “hip” always remains part of the leg. This legislation reverses radical case law from our Appellate Court, WC Division that magically turned shoulder injuries into part of the “body” by supposedly reading a dictionary!


Freezing the PPD rate at its current level of four years will provide a modest savings. The closed drug formulary should also provide something of a savings.


The attempt to both initially legislate the “traveling employee” concept while supposedly limiting it is, in my view, a mess and should be quickly discarded by State Republicans. The words “traveling employee” are not defined in the IL WC Act and don’t need to be. I am sure at least one part of the new legislation proposed by the Republicans could greatly expand this dopey concept beyond the drafter’s intent. I am sure the IL WC system would be much better served to ask our hearing officers to continue to use the “arising out of and in the course of” standard when evaluating workers who are traveling.


There are lots of other aspects of the The Capitol Compromise that aren’t strongly germane to the IL WC community and I won’t report all of it here. For business folks and others with interest, the best source of legislative 411 during the current crisis is the IL State Chamber of Commerce. President Todd Maisch and his lobbying guru Jay Shattuck are both solid sources of inside information for their members. We urge you to consider joining if you care about government in this nutty state—for more information go to www.ilchamber.org.


We appreciate your thoughts and comments. Please post them on our award-winning blog.



Synopsis: You Can Fire Someone on FMLA—It Does Not Protect a Job If That Job Is Eliminated Due to “Legitimate Business Reasons.” Research and Writing by Tim O’Gorman, J.D.


Editor’s Note: In Rodriguez v. Akima Infrastructure Services, the Federal Court for the Northern District of California provided guidance on how far the Family Medical Leave Act (FMLA) can go to protect an employee’s job when that employee has applied for leave under the FMLA.


Plaintiff in Rodriguez worked for employer Akima Infrastructure Services (AIS) as a Recruiter/Employment Specialist. Plaintiff then decided to apply for leave under the FMLA on the date upon which her eligibility requirement to take FMLA leave would be satisfied. FMLA provides an employee is only eligible after 1 year of employment and if that employee works 1,250 hours in the year prior to taking FMLA leave.


Plaintiff’s leave was scheduled for one month. AIS approved Plaintiff’s request for FMLA leave and allowed her to take her leave in October 2015.


In the months prior to Plaintiff’s scheduled FMLA leave, AIS had begun experiencing difficulties in maintaining revenue streams and AIS management explored the idea of restructuring its labor force to account for the decrease in revenue. As a part of that restructuring, AIS management made the decision to consolidate the job duties performed by Plaintiff’s job, and have those job duties be absorbed by other individuals at AIS.


Plaintiff was notified her job had been eliminated in its entirety while on FMLA. Plaintiff then filed her complaint alleging AIS interfered with her rights under FMLA in refusing to reinstate her to her position prior to taking leave. Plaintiff’s case was dismissed as a result of a motion for summary judgement filed by Defendant AIS.


In order to establish a claim under the FMLA, Plaintiff must establish


(1)  she was eligible for the FMLA's protections,

(2)  her employer was covered by the FMLA,

(3)  she was entitled to leave under the FMLA,

(4)  she provided sufficient notice of his intent to take leave, and

(5)  her employer denied her FMLA benefits to which she was entitled.


The Court focused on the fifth element of this analysis, focusing on exactly what Plaintiff was “entitled” to in regards to receiving FMLA benefits. The FMLA requires an employer reinstate an employee after taking such leave, so long as the employee would still be employed in the position had she not taken FMLA leave. Rodriguez v. AIS.


In this particular instance, the Court found Plaintiff would not have been employed with AIS even if she had not taken her FMLA leave. The Court pointed towards the well documented evidence of disappearing revenue streams that led to a reorganization of AIS’ labor force. AIS had a legitimate business reason to eliminate Plaintiff’s position and as a result, Plaintiff cannot enjoy an unrestricted right to reinstatement of a job that would not have existed otherwise.


KCBA applauds this common sense approach by the Federal Court for the Northern District of California; to allow individual employees to take legitimate business practices hostage by asserting rights to jobs that would not exist would unnecessarily frustrate the decision-making process in what is already a difficult business climate.


As managers and business owners, the Court repeatedly points to the documentation AIS was able to cite to in its motion for summary judgment and KCBA encourages all readers to document, document and document every meaningful item they can to ensure the best defense can be asserted to protect legitimate business practices for us


This article was researched and written by Tim O’Gorman, J.D. Tim can be reached for questions and concerns at togorman@keefe-law.com



Synopsis: Leo Hennessy, Rest in Peace.


Editor’s comment: This past week marked the passing of former IL Arbitrator Leo Hennessy. Leo Hennessy worked at the IL WC Commission for 20 years. The lawyers and staff at Keefe, Campbell, Biery & Associates remember him as a hard-working and diligent hearing officer who did not have a law degree but used common sense and his meticulous nature to learn the law and properly weigh the facts.

Before joining the IWCC, Leo Hennessy had a 30-year career in K-12 education. He was a teacher, basketball coach and administrator at Mendel High School, Fenger High School and Eisenhower High School, and he served as deputy superintendent of the Cook County Schools. He worked from the age of 12 to 78, serving as the head usher at Beverly Theater as a teenager and working summer jobs at U.S. Steel, Chicago Midway International Airport and the Chicago Stockyards.

Outside of work, he was a basketball referee and served on the board of directors for Little Company of Mary Hospital. He enjoyed all sports, especially golf.

Leo Hennessy was the father of Tom Hennessy and Edward Leo Hennessy of Hennessy & Roach, one of the U.S. leading defense firms. Former Arbitrator Hennessy is also related to Dan Capron of Capron, Avegrinos.


I will always remember Leo Hennessy giving a modest speech at the beginning of every monthly status call to insure attorneys and staff who were present knew of any recent developments that would affect WC claim handling or hearings. The speeches were similar to this KCB&A Update because he did a solid job of sorting out and prioritizing what the audience wanted and/or needed to hear, as I do with this weekly news blog.


His hard work and humor will always be missed. Our condolences and best wishes go out to his family and friends.



Synopsis: Happy 14th Anniversary to Keefe, Campbell, Biery & Associates!!!


Editor’s comment: Way back in year 2003, we started this great defense firm with only five lawyers and four staff members. We are now one of the leading defense firms going with around twenty lawyers in five different states!!


To all our well-wishers, clients and friends, we thank you for your support.


Synopsis: Join Shawn R. Biery, J.D., MSSC for a nationally broadcast Webinar July 17th, 2017 3:00 PM to 4:15 PM ET

Editor’s comment:  Workers’ Compensation: Return to Work Issues & Strategies

Can't attend live? By registering, you will be able to view the course live, view a recording at any time for 12 months, or both. This webinar will provide an overview of strategies and tips for reintegrating injured workers to production. In addition, the course will also provide tools for effectively managing claimants’ expectations and implementing protocols for claim management.

Upon completion of this course, you will be able to:

  • Analyze options which can be utilized on a claim by claim basis to set targets for return to work
  • Understand avenues to develop relationships with key stakeholders to assist in management of claim issues with focus on rapid return to work
  • Set targets for accommodated and full duty return to work for injured workers
  • Determine more specific strategies for your industry to minimize lost time claims
  • Describe HIPAA compliance issues

Receive a 35% discount for being a friend of the firm by using the promo code: SPKR35

You can sign up to attend at:


Please contact Shawn at sbiery@keefe-law.com with any questions or to find out how to have one of the KCBA attorneys provide a presentation to your office!