7-3-2017; IL Gov't to Struggle for Decades Due to Destructive Financial Engines; Chicago "Fair Workplace" Proposed Law Not Fair to Employers and more

Synopsis: IL Gov’t Will Continue to Financially Struggle for Decades to Come.

Editor’s comment: Watching the mess that has gone on and continues in Springfield, one has to wonder if there is any chance it is ever going to calm down and fly along traditional lines of state government. In my view, the worst-run state government in the United States appears to be treading water in a hurricane, not going forward and not falling dramatically back—remember, they remain at the precipice of total economic disaster. In my view, the IL state gov’t debt situation isn’t going to get significantly better without major changes in leadership and law. The problem with getting rid of the bad leaders is hundreds of thousands of current and retired state workers vote, vote and vote for them to insure they keep getting their “fake pensions.” I truly doubt we have people in place with the brains to get things done that strongly need to be done.

The BGA or Better Government Ass’n did a recent article that indicates our State has about 480,000 retirees currently being paid about $17.3B every year with regular higher-than-COLA increases or about $500M every year at taxpayer expense. Both I and the BGA in their own way, promise you most of those pensions are “fake” in the sense the State and other IL gov’t bodies have never set aside anything close to amount needed to insure IL taxpayers aren’t called on to make up the widening shortfall. Whenever I see a T-shirt promising “A pension is a promise,” I always thing “A fake pension is a fake promise.”

I look fondly to the north and Governor Scott Walker of Wisconsin. He has worked hard to cut his State’s annual spending by $5B a year. The savings is being passed along to taxpayers. I am sure he should be able to lower state taxes and not keep increasing them to record levels as our goofy legislators are doing and will keep doing for decades. Gov. Walker has done this by consolidating state agencies and streamlining their systems. We can only wonder if there is anyone in this nutty state who can come to power and do what Governor Walker has done. I assure my readers we try to be as bi-partisan as possible. I don’t care whether a Democrat or Republican leads us from the swamp of over-spending, over-borrowing and crushing debt, I just want someone from our State to do it.

Immutable Engines Guaranteeing Financial Destruction of This State Until Removed

Last week I wrote about the worst-funded IL fake government pension I am aware of called GARS or the IL General Assembly Retirement System. A participant in GARS only has to work four years to become fully vested and entitled to constitutionally protected benefits for life. As I advised, for an investment of about $32K in total, the former legislator may receive several million dollars if they live long enough. Their retirement money will quickly come from you and me when the participant’s contribution, state match and investment income is rapidly exhausted. This financially destructive fake pension program could be ended in only four years by enacting legislation barring it for everyone but current participants.

A similar financially destructive engine is JRS or IL Judicial Retirement System. Participants pay a little more than GARS but the payout is wildly higher. If you aren’t aware, in my view, the IL judiciary is the best paid judiciary in the United State and your local traffic court judge gets paid more money than Governor Rauner, the IL Secretary of State, our Treasurer, any statewide official. Right now, judicial pay starts at over $200K a year and they retired at 85% of their highest salary with guaranteed annual compounded increases at 3%. Here is the math:

·         Judicial contribution to become fully vested equals their approximate annual pay or about $200K.

·         Return on the investment of $200K is paid at 85% or about $175K in the first year.

·         The second year of retirement, they have used up their entire 20-year pension contribution plus the state match and any investment income.

·         Third year, the judicial retiree is back on the taxpayer’s dime.

·         In their 23d year of retirement, the first year payout of $175K will have doubled to $350K a year.

·         Their pension will continue to triple, quadruple, if they live long enough.

·         I feel an IL judge could put in $200K and get $3-7 million back from you and me in fake pension payments.

If you want to be mad at me about reporting this, you are going to have to be mad because I don’t want to pay former judges who are no longer working, as judges. And I promise my math is accurate—if you want to be mad about me about the math, you are clearly blaming the wrong party. Like the GARS program above, this destructive financial engine could be ended right now but would have to continue to allow the current participants to get billions of our tax dollars over the coming years.

What Does This Have to Do With Workers’ Comp in IL State Government?

As I have told my readers for years, I have many sources that indicate there are hundreds of former IL State workers who are getting lifetime “odd-lot” total and permanent disability awards. The cost to taxpayers is well over $100M. Our WC rates for such claims are very high and there is also a COLA component paid for by you and me. This concept could all end very rapidly with an IL State law mandating our State retrain and rehire such workers at sedentary and light-duty state jobs when such jobs open up. There are hundreds of such jobs that are filled every day. While we are at it, why not mandate all police and firefighters getting line-of duty disability pensions also be put back to such work?

In short, we are almost certainly going to be raising taxes and adding new taxes to allow our leaders to “tread water” and pay some bills for now. If we don’t find and block/end these sorts of destructive financial engines, we are going to need to continue to raise taxes and add more taxes to then raise taxes again and add more taxes. The outflow of jobs and businesses to our sister states will continue and may accelerate.

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

Synopsis: Chicago's 'Fair Workplace' Proposed Ordinance Needs to be Attacked by Business before Becoming Law—Please Join in the Fight!

Editor’s comment: We just saw Cook County add a stupid “soda” tax because they need money and people will fire them if they hike the County sales tax. What they do with such increases is to pass the law but sort of hide it from us until its effective date that may be months later. When we were getting ready to pay it, a judge blocked it—for now. Our vote on the “Fair Workplace” idea is to fight it before it becomes law.

Under this goofy new law, City of Chicago employers would be required to give workers at least two weeks' notice of their work schedules and pay their staffs extra for last-minute changes. Championed by the local branch of the United Food & Commercial Workers union and three alderman—Ameya Pawar, 47th Ward, Scott Waguespack, 32nd, and Toni Foulkes, 16th—the so-called Chicago Fair Workweek Ordinance mirrors recently enacted laws in New York, San Francisco and Seattle. Proponents of the ordinance cite hourly workers' desire for “predictability” in their weekly schedules, chiefly among employees in the food and retail industries. One has to wonder how such workers survived the unpredictability for the last several centuries in this industry.

Facts about the proposed ordinance:

ü  It would require Chicago employers to post schedules 14 days in advance and give employees an extra hour of pay, called "predictability" pay, if schedules are changed with less than a 14-day heads-up.

ü  f employees' hours are canceled or reduced with less than 24 hours' notice, employees could get up to four hours of pay for time they were expecting to work but did not.

ü  Additionally, a "right to rest" provision allows employees to decline to work scheduled hours occurring during the 11 hours following the end of a shift, and if they do accept such hours they must be paid time-and-a-half.

ü  The ordinance also requires employers to offer existing workers additional hours before hiring new employees.

ü  Penalties for violating the proposed ordinance, to be enforced by the Chicago Department of Business Affairs and Consumer Protection, could include fines of $500 to $1,000.

I hate when government tries to take over for private businesses, particularly in a State where our government bodies are so badly run. This proposed scheduling rule is just the latest in a series of local government mandates that add to the cost of doing business in Chicago. It follows close on increases to the Chicago minimum wage, which rose to $11 an hour this past Saturday, and new paid sick leave requirements.

If enacted, this ordinance would hamper employers’ ability to manage their business to account for seasonal fluctuations and unexpected changes in customer traffic. Employers would be on the hook to pay employees they don't need, or risk running their business short-staffed. When employees quit unexpectedly, business owners would be forced to incur extra costs in altering schedules to avoid being understaffed. The ordinance might also hurt those that it has set out to help, when employees find that they are far more limited in their ability to pick up extra shifts.

It's important to remember that many of the city's restaurant franchise owners, perhaps a group most likely to bear the brunt of any new "fair workweek"—are small businesses. The restaurant industry survives on razor-thin profit margins and is struggling with the increasing costs of doing business within Chicago. What rhymes with automate? If the ordinance is passed, employers in every affected industry will cut back on part-time hires, schedule fewer employees per shift, and offer less scheduling flexibility to employees. That's exactly what a market research firm finds happened in San Francisco, which implemented its ordinance in late 2014.

Our vote for our readers with operations in Chicago—contact your alderman or Chicago Mayor Emanuel and convey how happy you are with such shenanigans.

 

Synopsis: Who says you cannot deny TTD when an injured employee is terminated before MMI?  A brave new world or return to sanity?  Analysis and Reporting by Shawn R. Biery, J.D., MSCC.

 

Editor’s comment: In the recent future post Interstate Scaffolding, we have seen multitudes of cases in which TTD is being paid even after termination for cause based upon the holding which indicated generally that the Appellate Court would not consider the actual details of the cause. In most cases, this was difficult to avoid however we consistently advised clients that certain cases should be considered for litigation back to the Appellate Court to clarify the ruling in particularly egregious cases where payment of TTD really did appear to be unwarranted. Now, we get some case law to support our consistent recommendations to our clients and interested observers.

 

In Holocker v. IWCC (Komatsu America Corp.), No. 3-16-0363WC, 06/16/2017, the Illinois Appellate Court ruled that a worker who was fired before attaining maximum medical improvement for his industrial injuries was not entitled to temporary total disability benefits after he lost his job.

 

By way of background, Scott Holocker worked for the Komatsu America on crane duty when a chain broke loose from a crane he was operating September 2012, striking him in the face and chest. The blow knocked out four teeth and caused facial fractures.

Holocker missed one month of work, returning to light duty in October 2012 and full duty in December 2012. However, upon his return, Holocker requested he not be given any crane duties. He was obliged, and assigned to a position as a forklift driver in a building without cranes. Later in May 2013, Holocker was reassigned to a position in the building where his accident had occurred and he reported a panic attack in July 2013 when he attempted to operate the crane which had caused his injuries.

 

Holocker then asked to be reassigned to a new position, and his employer offered him a janitorial assignment which he refused. In October 2013, Komatsu fired Holocker after he missed three consecutive days of work without calling in sick. While he did undergo dental surgery the next month, his doctor excused him from work between Nov. 13 and Nov. 20 only based upon our reading of the facts.

 

Holocker proceeded on his WC thereafter and the arbitrator found Holocker was entitled to temporary total disability benefits from the date of his termination through the date of the arbitration but declined to any award of attorney fees or penalties. Both parties appealed, and the Illinois Workers’ Compensation Commission overturned the TTD award however the Circuit court later reinstated the arbitrator’s award.

 

The Illinois Appellate Court in their decision held the commission’s decision to deny TTD benefits after Holocker’s termination was not against the manifest weight of the evidence even though he had not yet reached maximum medical improvement at the time of his termination and in doing so, the court noted Holocker had been released to full-duty work and was back to work at his old job. It was also noted there was evidence Holocker remained employable, even with his work-related physical and psychological conditions. To quote the court, “Accordingly, there was ample evidence to support the commission finding that, at the time of his termination, the claimant's work-related injuries had stabilized to the extent that he was able to re-enter the workforce, and his injuries had no impact on his employment….”

 

While we are thrilled to see a common sense decision be made even though it is employer oriented, we also believe it could have been as easily noted that work was available and refused and find it to be an even stronger decision of the Appellate court which we hope is a signal that fair play is back with regard to legitimate issues surrounding disputes on return to work. In cases where an individual is committing theft, threatening co-workers or simply refusing to comply with offered accommodated work offers, we suggest there is new hope that you do not need to simply lay back and accept the non-compliance.

 

This article was researched and written by Shawn R. Biery. If you have questions about your return to work program or any cases with non-compliance regarding return to work or accommodations, please contact Shawn via email at sbiery@keefe-law.com  or via phone at 312-756-3701.

6-25-17; Will Democracy be a "FAIL" in Illinois This Friday?; Shawn Biery on Important New Ruling on TTD/MMI; Important Ruling on AG's WC Decision-Making by John Karis and more

Synopsis: Will Democracy be a “FAIL” This Friday in Illinois State Government?

 

Editor’s comment: As I have told my readers and several national news sources/blogs, our IL State Government has until this Friday, June 30, 2017 at midnight to cook up an annual IL State budget for the coming fiscal year that starts at 12:01am on July 1 and runs until next June 30. If they can’t strike a deal, all sorts of greasy, nasty things will start in relation to our State Gov’t on this Saturday and the days, weeks and months thereafter.

 

Three Obvious and Immutable IL State Government “FAIL” issues:

 

1.    If they don’t cobble up a budget, the State’s credit rating is going to move to what Wall Street calls “junk status.” This means the State is basically going to have to pay a giant vigorish or loan-shark-interest-rates to continue to borrow to pay their many pipers, as they have been doing for decades. It is also possible they won’t be able to borrow at all. If you are not sure, the State’s unpaid bills are over $15 billion, yes, billion dollars. Their pension debt is over $130B. When the City of Detroit went to “junk status,” they couldn’t borrow and ended up in Federal Bankruptcy Court and still haven’t emerged years later. The State of IL can’t end up in Bankruptcy Court but the impending inability to borrow is going to stress all relations with all vendors and at some point, they may not be able to make payroll.

 

2.    Both IL U.S. Senators Durbin and Duckworth have written to confirm federal funds for IL road projects will end to the tune of more than $1B. IL State road jobs are going to shut down but not the site maintenance costs that will come with managing the shut-down work. Road-builders across the State will be laying off lots of workers who are going to then file for unemployment, at a cost to the State and the employers.

 

3.    Our State is getting kicked out of all the interstate lotteries. This is again going to cost the State of Illinois millions of dollars they need to run our nutty State government.

 

More Democracy FAIL Issues—Lack of Any Accountability

 

If you don’t like to see things go to heck in a hand basket, please remember IL taxpayers can’t get rid of the leaders and members of the General Assembly who caused this crisis. These leaders have given away jobs and benefits and more benefits to anyone who worked or now works for them. As one example, Speaker Madigan comes from an Hispanic community near Midway Airport in Chicago. To my knowledge Speaker Madigan no habla espanol but he does give his loyal constituents/supporters and their families two, three and four jobs and an equal number of fake government pensions per family. I am not blaming these constituents who use the system to their benefit, I am pointing out we need to get back to some semblance of what other states call “democracy.” We have what I call a “benefit-ocracy” where State government provides state workers benefits and jobs our taxpayers can’t possibly afford.

 

On a similar note, do you remember the last time the State of Illinois laid anyone off or had to deal with a union strike? I don’t—the reason why is what I feel is the basis of a benefit-ocracy. When our legislative leaders are using high benefits and unnecessary jobs to cull votes out of present and former government workers, whatever they want is what they get. You don’t lay off your best voters. You also don’t allow your best voters to go on strike—you give them what you want at high cost to IL taxpayers.

 

On top of that, the “worst” or least funded fake government pension in Illinois is GARS or the General Assembly Retirement Scam, I mean system. This fake retirement system allows a member of the IL House or Senate to contribute as little as about $30,000 in four years of part-time work to then get literally millions of dollars from IL taxpayers the rest of their lives. Notable participants in GARS are former President Barack Obama and former Chicago Mayor Richard M. Daley who each served less than 10 years under Speaker Madigan and are both in line to basically win this version of the IL Lottery to collect millions of dollars from taxpayers over the coming years. It is hard to imagine anyone contradicting or disagreeing with Speaker Madigan when you have a fake and defunded gov’t pension with real gold coming at the end of your short term with the General Assembly.

 

IL State Democracy FAIL Number Three—Higher Taxes and More New Taxes May Be Coming with No End in Sight

 

We were mildly surprised to read a letter from Todd Maisch, the brilliant and hard-working President of the IL State Chamber who basically wrote his membership and anyone who will read it to let them know the State Chamber is okay with the IL income tax being raised to around 5%. With respect to President Maisch and the IL Chamber and I am a supporter of the Chamber, he didn’t say “but.” Ii is my view that is shared by lots of veteran State government observers, I don’t feel IL State Government can tax its way out of these issues. IL taxpayers need more than higher and higher taxes and lots of new taxes without something in return—long term change/reduction in State government. To my understanding, the highest income tax rate in the U.S. is California at 13.3%--do we want to keep letting our goofy legislative leaders continue to make gigantic increases in our taxes with no promise to seriously cut spending and make any financial sense of what they are doing?

 

Our State Government has been aware of numerous ways to save tax dollars. I am not in a position to truly analyze State government but would do so for free. I think our State wastes literally zillions of tax dollars every year. Here are some easy examples:

 

·         We have 88 State agencies that we could consolidate to half that number or less. All these agencies have directors and assistant to the directors and HR managers and other redundant and unnecessary costs.

·         The late Judy Baar Topinka confirmed the Office of the IL Treasurer and the Office of the IL Comptroller do exactly the same thing and are unquestionably redundant. To get rid of one or the other would save over $10M—what do we need to do to save that money?

·         Last year, we automated one small section of the IL Tollways—our State Government spends over $100M on paying humans to collect road tolls. Why not automate all State tollways right now?

·         Do we need a Lieutenant Governor? Should we give that person an actual job with an actual job description?

·         IL State government has “remote offices’ that are do-nothing jobs that should have been closed decades ago.

 

My message to President Maisch and all his members and all my readers—if you are going to jack up our taxes or agree to others jacking up our taxes, someone please tell me we are going to start the process of making IL State government efficient, effective and for the lack of another term, cheaper. If you don’t do that, taxes are going to continue to rise and rise until the last person leaving IL should be asked to shut off the lights.

 

How Do These Democracy FAILS Impact Workers’ Comp?

 

If you are watching the news, there are a few new IL WC reform proposals that will save IL business a couple of bucks in the years to come. I have literally no idea which one may come through the bigger battles in Springfield. If you want the skinny, read next week’s KCB&A Update.

 

In the interim, remember in the last year or so, Hoist Liftruck moved more than 500 manufacturing jobs to Indiana last year. .Machine-maker DE-STA-CO moved 100 jobs to Tennessee. Bunge North America shut down its plant in Bradley, Illinois, and laid off 210 workers. General Mills pulled the plug on its manufacturing plant in West Chicago, terminating 500 workers. Mitsubishi Motors closed production facilities near Bloomington ending 918 jobs there. Mondelez (makers of Oreos and Chips Ahoy) laid off 600 manufacturing jobs at its Chicago facilities. Kraft Heinz laid off 700 jobs at Kraft’s Northfield facility. Motorola Mobility cut its workforce in Chicago by 25 percent, eliminating another 500 jobs. More recently, Caterpillar is laying off 800 workers in Aurora, IL and Kellogg is laying off 258 in Woodridge.

 

When employers and jobs leave because of rising and new taxes, they may never, ever come back. In my view, if we continue to run this hillbilly, dysfunctional State Government, we will lose more jobs and workers. In that setting, our mildly high WC costs aren’t going to be that big a deal.

 

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

 

 

Synopsis: Who says you cannot deny TTD when an injured employee is terminated before MMI?  A brave new world or return to sanity?  Analysis and Reporting by Shawn R. Biery, J.D., MSCC.

 

Editor’s comment: In the recent future post Interstate Scaffolding, we have seen multitudes of cases in which TTD is being paid even after termination for cause based upon the holding which indicated generally that the Appellate Court would not consider the actual details of the cause. In most cases, this was difficult to avoid however we consistently advised clients that certain cases should be considered for litigation back to the Appellate Court to clarify the ruling in particularly egregious cases where payment of TTD really did appear to be unwarranted. Now, we get some case law to support our consistent recommendations to our clients and interested observers.

 

In Holocker v. IWCC (Komatsu America Corp.), No. 3-16-0363WC, 06/16/2017, the Illinois Appellate Court ruled that a worker who was fired before attaining maximum medical improvement for his industrial injuries was not entitled to temporary total disability benefits after he lost his job.

 

By way of background, Scott Holocker worked for the Komatsu America on crane duty when a chain broke loose from a crane he was operating September 2012, striking him in the face and chest. The blow knocked out four teeth and caused facial fractures.

Holocker missed one month of work, returning to light duty in October 2012 and full duty in December 2012. However, upon his return, Holocker requested he not be given any crane duties. He was obliged, and assigned to a position as a forklift driver in a building without cranes. Later in May 2013, Holocker was reassigned to a position in the building where his accident had occurred and he reported a panic attack in July 2013 when he attempted to operate the crane which had caused his injuries.

 

Holocker then asked to be reassigned to a new position, and his employer offered him a janitorial assignment which he refused. In October 2013, Komatsu fired Holocker after he missed three consecutive days of work without calling in sick. While he did undergo dental surgery the next month, his doctor excused him from work between Nov. 13 and Nov. 20 only based upon our reading of the facts.

 

Holocker proceeded on his WC thereafter and the arbitrator found Holocker was entitled to temporary total disability benefits from the date of his termination through the date of the arbitration but declined to any award of attorney fees or penalties. Both parties appealed, and the Illinois Workers’ Compensation Commission overturned the TTD award however the Circuit court later reinstated the arbitrator’s award.

 

The Illinois Appellate Court in their decision held the commission’s decision to deny TTD benefits after Holocker’s termination was not against the manifest weight of the evidence even though he had not yet reached maximum medical improvement at the time of his termination and in doing so, the court noted Holocker had been released to full-duty work and was back to work at his old job. It was also noted there was evidence Holocker remained employable, even with his work-related physical and psychological conditions. To quote the court, “Accordingly, there was ample evidence to support the commission finding that, at the time of his termination, the claimant's work-related injuries had stabilized to the extent that he was able to re-enter the workforce, and his injuries had no impact on his employment….”

 

While we are thrilled to see a common sense decision be made even though it is employer oriented, we also believe it could have been as easily noted that work was available and refused and find it to be an even stronger decision of the Appellate court which we hope is a signal that fair play is back with regard to legitimate issues surrounding disputes on return to work. In cases where an individual is committing theft, threatening co-workers or simply refusing to comply with offered accommodated work offers, we suggest there is new hope that you do not need to simply lay back and accept the non-compliance.

 

This article was researched and written by Shawn R. Biery. If you have questions about your return to work program or any cases with non-compliance regarding return to work or accommodations, please contact Shawn via email at sbiery@keefe-law.com  or via phone at 312-756-3701.

 

 

Synopsis: Appellate Court Says IL Attorney General Can Pick Their Battles

Editor’s comment: The fourth circuit Appellate Court found the U.S District Court did not err in granting the IL Attorney General’s motion to dismiss noting the Attorney General has broad discretion in representing the State in litigation where the State is the real party in interest, and Attorney General’s decision to refuse to raise an argument is within that discretion.

At the crux of the case involves two particular workers’ compensation claims filed by Stephanie Yencer-Price, a personal assistant who sustained injuries while working in a private household in Sangamon County. Because she is employed by a private household as a personal assistant under the Disabled Persons Rehabilitation Act, Yencer-Price claimed she was a “state employee” and entitled to workers’ compensation from the state – rather than from her private employer – for the injuries she allegedly sustained while working for her private employer.

But both state law and court precedent make clear personal assistants are not “state employees” and therefore are not entitled to workers’ compensation from the state.

As a state agency under the governor, Central Management Services (“CMS”) is statutorily tasked with representing the state’s Department of Human Services in workers’ compensation claims brought against the state. CMS’s asked the Attorney General to present its determination that Yencer-Price was not a State employee in proceedings before the Commission. However, the Attorney General refused to present this argument and objected to CMS’s request to choose a special assistant Attorney General to represent CMS before the Commission.

After Madigan refused to defend the state against the workers’ compensation claims, Michael Hoffman, in his official capacity as Director of CMS, filed a complaintHoffman v. Madigan for injunctive and declaratory relief. The complaint, in part, requested (1) defendant, Lisa Madigan, in her official capacity as Attorney General of the State of Illinois, be enjoined from representing CMS before the Workers’ Compensation Commission on cases involving “personal assistants,” based on her refusal to defend CMS’s determination that a personal assistant was not a State employee for purposes of the Workers’ Compensation Act, and (2) a special assistant Attorney General be appointed to represent CMS.

That same month, the Attorney General filed a motion to dismiss alleging the complaint failed to state a legally valid cause of action. In May 2016, the trial court granted the motion to dismiss with prejudice. The court noted the potential for “chaos” if it determined the disagreement as to what argument the Attorney General should raise constituted a conflict of interest such that special counsel should be appointed. The court observed the unique powers and constitutional authority the Attorney General holds which includes the responsibility to decide what arguments, strategies, and litigation tactics to employ. Further the court ruled CMS’s disagreement with the Attorney General’s strategy was not a valid basis to justify the removal of the Attorney General from all workers’ compensation cases involving personal assistants.

CMS appealed, arguing the trial court erred by dismissing its complaint for failure to state a cause of action. Specifically, CMS argued (1) the court erred in its construction and application of controlling precedent and (2) CMS stated a colorable claim that personal assistants are not State employees and the Attorney General’s refusal to raise that claim in workers’ compensation proceedings created a disqualifying conflict of interest such that a special Attorney General should be appointed.

The Appellate court affirmed the trial’s court’s decision to dismiss the matter. The court noted The Attorney General is not individually interested in or a party to the underlying workers’ compensation case, nor is the Attorney General in the position of representing opposing States agencies. The court stated “Although CMS might disagree as to what argument the Attorney General makes, that disagreement is insufficient to qualify as a conflict of interest such that special counsel should be appointed.”

The court further noted Attorney General’s refusal to raise this argument does not constitute an arbitrary interference with CMS’s statutory authority to make the initial determination as to the compensability of personal assistants’ workers’ compensation claims. They went on further stating CMS may continue to make the initial determinations on whatever basis it determines is appropriate.

It doesn’t make sense on why these state agencies can’t get along since they’re on the same team, the same team that protects the Illinois taxpayers. The impact of this case is substantial. Hundreds of workers’ compensation claims have been filed on behalf of personal assistants in the state. When the state is not adequately defended from such claims, millions of taxpayer dollars improperly flow from the state to individuals who are not employees of the state. The state simply cannot afford to lose money.

This article was researched and written by John Karis, JD. You can reach John 24/7/365 for questions that about general liability, employment law and workers’ compensation at jkaris@keefe-law.com.

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:

http://clearlawinstitute.com/shop/webinars/workers-compensation-return-to-work-issues-strategies/

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!