7-2-2018; Janus Ruling Issued by SCOTUS; What Does It Mean to Workers’ Comp?; Lilia Picazo, J.D. on Important Exclusive Remedy Ruling; Matt Wrigley J.D. on Change to Michigan Application and more

Synopsis: Janus Ruling Issued by SCOTUS; What Does It Mean to Workers’ Comp?


Editor’s comment: I have a relative who is a school teacher. He told me his School District had a union for teachers but he didn’t feel they were effectively representing him and his fellow teachers. So, while he never joined the union, he was still required by law to pay “fair share” dues to the union. On their side, the unions did participate in collective bargaining and my relative got whatever benefits the union obtained for their dues-paying members.


If you aren’t sure, that was the issue presented to the U.S. Supreme Court in their Janus ruling—could government workers who don’t join government unions still be required to support the unions with “fair share” dues payment? Last week, our highest Court ruled such workers can no longer be required to make such payments if they don’t want to be in the union.


What does this mean to our country and more specifically, the State of Illinois? Well, I personally consider it a good thing. In my personal view, government unions have always been a bad idea. Believe it or not, one of the first folks to notice this problem was President Franklin Roosevelt. It was President Franklin Roosevelt’s judgment “the process of collective bargaining, as usually understood, cannot be transplanted into the public service.” In private-sector bargaining, unions contest management concerning the distribution of companies’ profits. In the public sector, government gets its revenues from a third party — you and I as taxpayers.


Allowing government unions to thrive and grow makes for high government salaries and benefits, like the fake and unfundable pensions many former IL government workers receive and are already crushing State, County and local gov’t budgets. I also feel most gov’ts in this State are vastly overstaffed due in part to government unions—this also adds to costs and high taxes.


Here are a couple of thoughts about government unions in this State:


  • Forbes reported more than 30,000 Illinois teachers and retirees receive over $100K a year in compensation at an annual and ever-rising cost of $3.7B to taxpayers. Please note these retirees are guaranteed 3% annual compound increases that will double then quadruple their retirement pay if they live long enough (someone said such retirees are on a “fixed income”—not when they get guaranteed annual increases!)




  • Every day of every year, Cook County Sheriff Tom Dart has to deal with 7 government unions—that is for just one County Department. That means Cook County administration may have to deal with 50-100 or more government unions.


  • All of these IL gov’t workers vote with consistency and with one thought in mind—keep my pay, healthcare and benefits! No one seems to care about taxpayers—we have the highest combined income, real estate and sales taxes in the U.S. As fewer and fewer normal citizens vote, the impact of the thousands of gov’t-workers-voting-to-keep-or-increase-benefits has completely skewed our State, County and local governments away from efficiency and effective governance to enriching government workers.


What Does the Future Look Like for Workers’ Comp After Janus?


The defense team at KCB&A is sure there will be a decline in union membership following this ruling. Unions, like all entities, need money to operate, maintain and grow. The estimates I have seen indicate there may be 5.5 million workers who won’t have to continue to make “fair share” payments. That is a lot of money for gov’t unions to rapidly lose. The U.S. Supreme Court's decision in Janus continues the trend in the private sector, where more and more states have passed laws outlawing all forms of mandatory union dues. Currently, 28 States have laws that make it illegal to require workers to join a union or pay related fees as a condition of employment. But some of those state laws affect only the private sector. The Janus ruling will financially challenge all public-sector unions in the remaining states that allowed compulsory fees. We are sure this decision will lead to a further decline in the percentage of the American workforce that is unionized.


I assure my readers lots of Claimant lawyers live off those millions paid to gov’t workers for work comp benefits. If you are familiar with IL State Gov’t’s and Chicago’s WC programs, you will note literally millions are spent and misspent in managing and mismanaging those defense programs. You might think the jobs are “dangerous” due to the high level of “accident” claims and the higher level of attorney involvement. I don’t feel that is the case at all.


In my view, there is a very high level of involvement of Plaintiff-Petitioner lawyers due, in part, to contributions made to union stewards and friendly politicians. I make the rough estimation both gov’ts each spend about $150M a year in WC benefits—if all those benefits are paid at a 20% statutory clip to Plaintiff-Petitioner attorneys, that is $60M in fees!


One of my favorite stories was a successful Plaintiff lawyer who finally got the chance to make a presentation to a gov’t union local. When he got there, he was mildly stunned to learn he was the 23d Plaintiff-Petitioner lawyer presenting that day. Everyone of the presenters was expected to make a “contribution” to someone to get to the dais. Less money for unions may mean fewer lawyers involved in union claims.


Please also note some of the corruption in IL WC in years past was due to the shenanigans seen in the southern IL jails where unionized prison guards and lots of other gov’t folks, including at least one Arbitrator, were making bogus carpal tunnel syndrome claims. The guards were claiming the malady was from turning keys in locks and driving supposedly reluctant state vehicles. Lots of private workers started to make similar bogus claims—we felt this caused a major southern IL ammunition manufacturer to move their operations out of our state. Someone later put the kibosh on this silly stuff but it still shows you the gov’t sector can somewhat “poison” the private sector in IL WC.


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Synopsis: IL Appellate Court Affirms Trial Court Order to Bar Plaintiff’s Common-Law Negligence Claim Against a Coworker Based on the Exclusive Remedy Provisions of the WC Act. Analysis by Lilia Picazo, J.D.


Editor’s Comment: In Peng v. Nardi, 2017 IL App (1st) 170155, the Illinois Appellate Court affirmed a trial court’s order dismissing Xiao Ling Peng (“Peng”) negligence claim against co-worker Lei Guan (“Guan”) for injuries sustained as a result of a 3-car collision.  


In June of 2014, Peng and Guan worked at a restaurant located in Hoffman Estates, Illinois. The employer provided Guan keys to a Ford passenger van to transport himself and other employees to and from the restaurant. The employer also paid Guan $600 a month for his driving duties and covered the cost of fuel. Guan was prohibited from using the van for personal use. He was prohibited from letting any other employee drive the van.


The employer initially told Guan where to pick up new employees, but Guan later chose the pickup and drop-off locations. Guan also chose the route to and from work based on Chicago traffic conditions.


On June 20, 2014, Peng was a passenger in the van when it was involved in a 3-car collision on northbound I-90. She suffered an injury to her hip. Peng filed a negligence suit against Guan and the two other drivers involved in the collision. Peng also filed a WC claim. The employer’s WC insurance carrier paid portions of her medical bills.


The trial court initially denied Guan’s motion to dismiss, but later granted Guan’s motion to reconsider and eventually dismissed Peng’s claims against him. The trial court found Guan was protected from liability in the common-law negligence action pursuant to the exclusive remedy provisions of the Illinois Workers’ Compensation Act.


Peng appealed arguing she was not in the course of her employment at the time of the collision. She also argued she filed a WC claim to protect her rights as the statute of limitations was approaching.


In affirming the trial court’s decision, the Illinois Appellate Court noted accidents generally occurring during travel to and from work are not considered to have arisen out of or in the course of employment under the exclusive remedy provisions of the Act. An exception exists; however, when the employer controls the means of transportation or method of transportation, thereby extending the risk and course of employment. The court explained Peng renounced control of her travel to and from work when she rode in the employer-owned and controlled vehicle driven by Guan.


Therefore, the court concluded the workers’ compensation system provided Peng exclusive remedy for her injuries against Guan and the employer as the accident occurred while Peng was in the course of her employment.


We want our readers to be aware that by providing company-controlled vehicles or transportation to and from work to employees may increase liability under the WC Act.


This article was researched and written by Lilia Picazo, J.D. You can reach Lilia 24/7/365 for questions about general liability, employment law and workers’ compensation at lpicazo@keefe-law.com


Synopsis: State of Michigan Revises Application For Mediation or Hearing – Form C. Research and analysis by our Michigan Defense Leader Matthew Wrigley.


Editor’s Comment: Michigan Department of Licensing and Regulatory Affairs (LARA) has revised Form WC-104C to include a checkbox to add any “non-employer entity.”


Prior to this revision Claimants were able to add a second employer but no mechanism was in place to add a separate entity as a party. The revised form will allow Claimants to more easily indicate their intentions and will aid LARA in the processing of such claims. All parties requesting mediation or hearing may commence using this form immediately.


We note Claimants who wish to settle for a lump sum cash payment must request the Workers’ Compensation Agency (WCA) file be sent from Lansing, the state capitol, to the appropriate hearing site. The assigned Magistrate will determine whether the settlement is just and proper. Form WC-104C is used to streamline the file request procedure and the box “Redemption Only” should be checked. Many claims involve disputes over medical care and such issues can sometimes be resolved through an informal telephone mediation process. Each party is provided an opportunity to discuss relevant issues and seek resolution. It is anticipated this will be more frequently utilized in disputes involving new opioid treatment rules.


This article was researched and written by Matt Wrigley, J.D. You can reach Matt 24/7/365 for questions about general liability, employment law and workers’ compensation at mwrigley@keefe-law.com