11-28-16; Hold Your Payroll by Brad Smith; Kooky New OSHA Fall-Protection Rule Coming at You if Not "Trumped"; Lily Picazo on Impairment Rating Ruling and more

Synopsis: Hold Your Payroll for December 1st! Eastern District of Texas Federal Court Issues Nationwide Injunction Against U.S. DOL Increases For “White Collar” Salary Exemptions, Analysis by Bradley J. Smith, J.D.

Editor's Comment: Late this week, United States District Judge Amos L. Mazzant (an Obama appointment) thwarted Obama’s Department of Labor’s Final Rule described at 81 Fed. Reg. 32,391 by enjoining it from taking effect on December 1, 2016. The injunction was a blow to the law that was already causing U.S. employer’s headaches about how to afford and implement the salary changes to stay in line with the law, which requires lots more overtime pay than in the past. Specifically, Judge Mazzant enjoined the DOL from implementing and enforcing the following regulations as amended by 81 Fed. Reg. 32,391: 29 C.F.R. §§ 541.100; 541.200; 541.204; 541.300; 541.400; 541.600; 541.602; 541.604; 541.605; and 541.607. If you are an employer in the USA, then his ruling likely affects you!

The ruling affects the “white collar” exemption. You may be asking yourselves, what happened and how did we get here? President Obama wanted to give the “middle class” a raise. On March 23, 2014, President Obama told the Secretary of Labor to increase the existing “white collar” exemptions in FLSA. The DOL did so. Next week, December 1, 2016, the DOL’s Final Rule would have increased the minimum salary level to entitle “white collar” employees to overtime from $455 per week ($23,660 annually) to $921 per week ($47,892 annually).

The rule would require U.S. employers to

§  Pay these newly eligible managers time and a half for overtime;

§  Raise their salaries to render them ineligible for OT;

§  Lock in the manager’s hours at 40 hours a week;

§  Some combination of the above.

The DOL’s Final rule also allows for automatic increases in those levels every three years, starting on January 1, 2020. Fortunately, for U.S. employers wondering where the additional money (or necessity of monitoring hourly employees' overtime work) would come from, this ruling puts the DOL Final Rule on hold. This will save employers a ton of additional money and resources! We have heard from multiple emloyers struggling with how they were going to comply with the new rule. Well, for now, you don’t have to. And there is the possibility this is all going to end.

In short, the new overtime rule is most likely dead after Judge Mazzant issued a preliminary injunction Tuesday delaying its implementation during pending litigation, which was to start Dec. 1. Judge Mazzant of the Eastern District of Texas hinted strongly in his decision the delay is a prelude to striking down the rule. “The State Plaintiffs have shown a likelihood of success on the merits,” he wrote, “because the Final Rule exceeds the Department’s authority.” In issuing the rule, he wrote, the Labor Department "ignores Congress’s intent by raising the minimum salary threshold such that it supplants the duties test … if Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

For the time being, you should know that the overtime rule will not take effect on December 1, 2016. Although the DOL has legal options, they will likely take some time. And there will almost certainly be new administrators from the incoming administration at the U.S. DOL.

The options are likely as follows;

·         The DOL appeals the injunction to the Fifth Circuit, which probably would not issue an opinion until 2017.        

·         A lame-duck Congress quickly compromises with a bill for President Obama’s signature.

·         The DOL does nothing and awaits Judge Mazzant likely implementing the injunction permanently after a trial on the merits.

·         President-Elect Trump addresses it after being sworn in on January 20.

While the DOL is likely to appeal to the Fifth Circuit Federal Appellate Court, the timing of this decision leaves the fate of this rule in the hands of the 115th Congress and the Trump Administration. However, there is always a chance that this injunction could be flipped on appeal, so this is something we will be monitoring in the coming weeks. 

What do U.S. employers do now? How will you balance the cost savings of a “do-over” for the employees whose salaries you raised against the morale hit lowering their salaries—especially at this time of the year—will cause? Do you reconvert the employees? Will you re-hire some of the folks you laid off when anticipating the increased costs? These are difficult questions; however, if your business costs were going to increase to a level that was unmanageable due to the increase in EAP salary, then you probably have an obvious answer to your questions. For everyone else, individual assessments will likely be required.

The research and writing of this article was performed by Bradley J. Smith, J.D. with the help of the Editor-in-Chief, Eugene F. Keefe, J.D. Bradley or Gene can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com or ekeefe@keefe-law.com.

Synopsis: Outbound OSHA Administration Issues Massive New Fall Protection Rule—Can It Withstand Legal Challenges and the New Trump Administration?

Editor’s comment: Despite a Congressional “request” federal agencies like OSHA not promulgate new regulations during the transition to the Trump administration, the zealots at the Occupational Safety and Health Administration recently issued a gigantic 513 page final rule effectively re-writing its general industry standards on walking-working surfaces, including ramps, ladders, gangways, roofs, and other surfaces. While this rulemaking has been in the works for about three decades, the original 293 page proposed rule was published at 75 Fed. Reg. 28861 on May 24, 2010. About six years later, without any advance warning, OSHA promulgated the final rule and provided only sixty days for your compliance.

For a variety of reasons, this rule may be subject to the same legal attack as the FLSA mess reported by Brad Smith in the article above. It may also be “Trumped” or blocked by the inbound administration—they assert they don’t want more government regulation and here is one such complex morass of new rules for U.S. business to deal with.

The final rule includes new and unprecedented provisions addressing fixed ladders, rope descent systems, fall protection systems and criteria, and training. Further, their final rule adds requirements on the design, performance, and use of personal fall protection systems. Please note some of these rules were already in place for the construction industry—the new fall protection rule expands the scope to general industry.

Outbound OSHA Administrator Dr. David Michaels said the “rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries.” “OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls.” Dr. Michaels claims the rule should also increase the “consistency between general and construction industries, which will help employers and workers that work in both industries.”

According to OSHA, the “rule’s most significant update is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in the construction industry since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level, prohibiting the use of body belts as part of a personal fall arrest system, and requiring worker training on personal fall protection systems and fall equipment.”

The new standard should affect 6.9 million establishments employing a whopping 112 million employees. OSHA also found the ladder training rules will apply to 5.2 million employees engaged in the construction, installation, maintenance, repair, and moving operations in general industry. For almost all our readers who are U.S. risk and safety managers, if this new rule isn’t blocked by legal action or the new administration, you will need to obtain and set fall protection training at your facilities asap.

Excluded from the new rules are employees outside of OSHA’s jurisdiction due to location or operational status, such as Department of Transportation (railroad and trucking) responsibilities, or those subject to industry-specific fall protection standards, such as telecommunication and electric power generation, transmission, and distribution.

OSHA estimates full compliance with this rule would prevent over 5,800 injuries and 29 fatalities per year. In my view, that is based on hopes and prayers.

Timeline—You May Not Be Surprised to See it Starting Three Days Prior to the Trump Inauguration!

The rule will be effective beginning Tuesday, January 17, 2017; Trump is inaugurated that Friday, January 20, 2017.

Some provisions have delayed effective dates, including:

ü  May 17, 2017 – Train employees on fall and equipment hazards;

ü  July 17, 2017 – Insure exposed workers are trained on fall hazards;

ü  July 17, 2017 – Insure workers who use equipment covered by the final rule are trained;

ü  November 20, 2017 – Inspect and certify permanent anchorages for rope descent systems;

ü  November 19, 2018 – Install personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising;

ü  November 19, 2018 – Insure existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system;

ü  November 18, 2036 (yes, twenty years from now) – Replace cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet.

We caution compliance with this giant new rule will represent a major challenge for U.S. employers, due to the effective date of the regulations. It will require all U.S. employers to meet these same rules and requirements for your outside contractors, temporary and staffing/leased employees who may be at the worksite under OSHA’s “multi-employer” worksite doctrine.

Will It Last?

This new OSHA Rule will come under review by the Trump administration or be subject to the Congressional Review Act where lawmakers have 60 legislative days to overturn a regulation from the current or, in this case, previous administration. If lawmakers are not in session for a full 60 days after enactment of the new rule before adjourning their final session, the clock resets, and the new Congress is given another 60 days to act on the new rule.

Does KCB&A Do OSHA Defense?

Yes, we most certainly do and at hourly rates half of some competitors. You don’t need to spend $500, 600 or more per hour to resolve OSHA disputes and pay your defense lawyer so much to defend you that you have to be in a lose-lose situation. If you have an issue with OSHA or need advice at any future time, please call or email and we can help.

The research and writing of this article was performed by Bradley J. Smith, J.D. with the help of Editor-in-Chief, Eugene F. Keefe, J.D. Bradley or Gene can be reached with any questions regarding the FLSA, employment law, and general liability defense at bsmith@keefe-law.com or ekeefe@keefe-law.com.

Synopsis: IL WC Impairment Rating Ignored… Again. Analysis by Lilia Picazo, J.D.

Editor’s Comment: In 2011, impairment ratings were brought to the IL WC matrix to try to bring the value of permanency or what can now be called ‘impairment’ down to make it more palatable for IL employers. The goal of the reforms was to bring IL WC awards more in line with our sister states. There has been substantial push-back on this concept by our hearing officers, all of who report directly to the Governor. We will see when and if the secret-powers-that-be who run IL WC might encourage them to drop PPD awards consistent with impairment ratings—for now, the jury remains out on lower PPD values based on impairment ratings in claims like this. In our view as defense lawyers, there is still value in getting a rating.

In Flexible Staffing Services v. Illinois Workers' Compensation Comm’n, the Illinois Appellate Court, WC Division ruled the IWCC properly applied Section 8.1b of the IL WC Act when it awarded PPD benefits at a more traditional and high level to Petitioner. Basically, the impairment rating was wholly ignored to the chagrin of employers, claims handlers, risk managers and insurance carriers across our state.

Petitioner, a welder-fabricator, was welding a 400-lb. section of a rail when he sustained a right distal biceps tendon rupture from attempting to grab it as it fell from a saw-horse. Petitioner underwent right elbow repair and physical therapy. Petitioner testified he complained of continued pain and lack of full range of motion when his treating provider released him to full duty. Respondent’s examiner calculated Petitioner’s level of impairment at 6% of the upper extremity.

The Arbitrator awarded 30% loss of use of the right arm or five times the level of impairment. The IL WC Commission modified the award and determined Petitioner suffered 25% loss of use of the right arm, but did not provide any analysis or reasoning. The trial court remanded the case back to the IL WC Commission and instructed the Commission to provide facts and reasoning relied upon to modify the Arbitration decision, consistent with the statute.

On remand, the Commission applied the factors set forth in Section 8.1b of the Act and noted the 6% impairment rating did not adequately represent Petitioner’s disability. The Commission reasoned a finding in favor of the rating would disregard the other factors set forth under Section 8.1b. In our view, they completely disregarded the rating, to focus on other factors. With respect to the Commission panel, we don’t feel that appropriately meets the statutory requirement.

On appeal to the IL Appellate Court, WC Division Respondent made two arguments:

First, Respondent argued the Commission misapplied section 8.1b as a matter of law because it “considered factors for which no evidence was present in the record.” The Appellate Court found Respondent did not identify an error of law. It read the Commission decision as having sufficient evidence for all factors it considered under Section 8.1b prior to modifying the award.  

Second, Respondent argued the Commission misapplied section 8.1b as a matter of fact. Respondent argued there was no evidence to support consideration of Petitioner’s occupation, the relationship between Petitioner’s age and his level of disability, Petitioner’s future earning capacity, or evidence of disability corroborated by the medical records. Respondent further argued there was no evidence to support an assertion Petitioner was more prone to future injury.

Although the Appellate Court noted it was unclear whether the IL WC Commission meant a future physical injury or economic injury, it reasoned it was not within its scope to rebalance the factors set forth in Section 8.1b(b) or to substitute its reasoning for that of the Commission.

The Appellate Court noted the Commission’s application of Section 8.1b was not against the manifest weight of evidence and affirmed the decision of the IL WC Commission.

Editor’s note: As I have told our readers on multiple occasions, I don’t see any value in having the defense side of an IL WC claim bring disputes of this nature to this very liberal appellate panel. In the view of your editor, it is a complete waste of time and money because they almost never rule for the defense side of an IL WC claim. While we can’t be sure, it would almost appear an adjuster from this major national insurance carrier wanted a published decision to demonstrate impairment ratings don’t have value in IL WC. We disagree with that view and consider ratings to have value in settlement discussions, pretrials and hearings.

This article was researched and written by Lilia Picazo, J.D. You can reach Lilia at any time for questions about workers’ compensation at lpicazo@keefe-law.com.

11-21-2016; IL WC Reform Set to Die; Is Lifting a Smidgen Going To Be An Accident in IL WC?--A Two-Part Article; Shawn Biery on our New IL Arbitrators and more

Synopsis: IL WC Legislative Reforms to Die; Is The Act of Lifting a Smidgen Going to Be A Work-Accident?

Editor’s comment: This is a two-part article by Gene Keefe, J.D. and John Campbell, J.D.

First, let’s consider status of the IL WC reform battle in Springfield. The news is not-so-good for our business and government readers.

The seemingly never-ending journey to legislatively limit workers’ comp costs in Illinois may never reach its goals. In Springfield, we are advised four leading legislators from both sides met with Gov. Rauner last Wednesday to continue the battle over a deal that might simultaneously end the budget stalemate between Democrats in the General Assembly and the Republican administration.  

Republican leaders and Governor Rauner reportedly discussed their proposed reforms to lower workers' compensation costs in exchange for an end to the current state budget impasse—to our understanding, on January 1, 2017, our State government won’t have an actual budget like other states. In working out the fight over the budget, Gov. Rauner's “turnaround agenda" workers' compensation reforms codified in HB 4248, and were filed in July 2015 by Republican legislative leader Jim Durkin. The bill would

·         Impose a “major contributing cause” standard;

·         “Sort-of” adopt the “traveling employee” definition from the IL Supreme Court ruling in the Venture-Newberg case (we don’t agree with the wording at all and feel it might be an expansion and not a contraction of our law);

·         Create credits for prior awards and settlements for IL employers;

·         Allow for the use of AMA guidelines on their own to adjudicate/set permanency/impairment values and

·         A WC Medical Fee Schedule expansion/reduction. 

And Last Week, Speaker Madigan Basically Dumped The IL WC Reforms Into a Committee to Die

The impetus of filing House Bill 4248 in year 2015 and bringing it up during Wednesday's meeting was to be a starting point for further negotiations. However, shortly after the legislative leader meeting, Speaker Madigan referred the workers' compensation reform proposal to the House Labor and Commerce Committee for a hearing on November 28, 2016 without the consultation of the sponsor, Jim Durkin. As I have advised in the past, I consider House Speaker Madigan to be our resident megalomaniac—this was another demonstration of his insurmountable power and lack of respect for anyone in IL government who disagrees with him.

In addition, the next scheduled leader's meeting takes place the same day as the scheduled committee hearing. The circus behind scheduling HB 4248 before a House committee on a year old bill, that was always considered a long shot for Republicans in a Democratic controlled legislature, is to effectively dump the bill in by allowing the bill to be quietly defeated by the House committee controlled by Speaker Madigan and his minions.  At this point, IL House Republicans are calling for continued discussions and negotiations on workers' compensation reform so our lawmakers can craft a bipartisan solution. No one knows if a six-month budget for the second half of this fiscal year is going to be worked out. On November 28, we will see if the 2015-2016 IL WC legislative reform is killed.

Part Two by John Campbell, J.D.

Synopsis: IL Appellate Court, WC Division growing proficient in finding distinctions where there is no difference. A recent ruling finds an “accident” for what appears to be a very benign, every-day action.

Editor’s Comment: We were left a bit quizzical to read the recent  IL Appellate WC ruling that we simply can’t get our head around.

In Mytnik v. IWCC, published on 11/10/2016, the Illinois Appellate Court, WC Division overturned another decision of the IL WC Commission denying an assembly line worker benefits for a back injury. Despite statements of the IL Supreme Court in two separate rulings confirming this middle court should use great restraint before reversing IWCC rulings on the “manifest weight of the evidence,” we have seen a number of such reversals in recent years. In the case at hand, Claimant was simply reaching to the ground to pick up a small bolt. Nothing terribly heavy, or awkward or highly repetitive. For these reasons, the reversal is troubling for the IL WC defense industry. Please note the cost of this ruling to Ford Motor Company was at least $160,000!

Aside from the reversal on “manifest weight”, this ruling is also notable for what appears to be a recent struggle by this Court in defining what constitutes a “repetitive accident,” a “neutral risk” and which are “quantitative” or “qualitative” risks. What we see is that compensability hinges on whether the innocuous activity was a “required job duty” at the time of the injury.

Why is the “Required Job Duty” Consideration Important?

Well, please note this same Court recently denied a strikingly similar claim  for an office worker who was reaching to the floor to pick up a pen. In Noonan v. IWCC (issued 20 days prior to Mytnik on Oct. 21, 2016) this same Court upheld the denial of benefits when Claimant hurt his wrist reaching to the floor for a pen he dropped. It was reasoned that reaching for a pen was not a “required duty” of that job, so the injury was not compensable.

So, what’s the difference? Let’s see how the Court distinguishes the facts in Mytnik to reach an opposite conclusion.

Claimant Mytnik worked for Ford Motor Co. on their assembly line. Claimant’s  job consisted of installing car suspensions; the work involved twisting and turning, and he periodically had to pick up small bolts that fell off the articulating arm used them to secure the rear suspension system. In our view, small bolts = the pen in the Noonan case, right?

Not So Fast. Same Court, Different Day.

Claimant in Mytnik explained that during his shift, bolts would occasionally fall to the floor and he had to pick them up. Therefore, picking up the bolts was a required job duty. However, in Noonan, the Court concluded that picking up a pen from the floor was not part of the required job duties for the office clerk and therefore, his injury was not compensable, as it was a “neutral risk” with no “qualitative” or quantitative” increased risk.

It is our impression the scenarios in these two cases are largely indistinguishable. In both claims, the act or “risk” leading to injury was “bending over” to lift something very, very light. Numerous prior denials have come from such facts over the history of IL workers’ comp. One could easily argue that office clerk Noonan is generally obligated to pick up a pen he drops while working and is therefore “required” to do so. One could also argue on the other hand that factory worker in Mytnik didn’t always have to pick up every bolt that dropped, or that the dropping of bolts (or picking them up) was not part of the essential job duties and therefore, his injury was not compensable.

In our respectful view, we would welcome a fresh examination by the higher courts when deciding these very innocuous mechanisms of alleged accident and injury. It may be time to erase the chalk board if you will, where we have our courts supposedly analyzing “neutral risks” and “incidental risks” and “quantitative risks” and “qualitative risks”.

We are nostalgic for the good old days where we simply looked at whether there was a true increased risk related to the job to determine there was an actual accident.

In our view, if you want to reform the IL WC system, you may be hard-pressed to change the thinking so you have to change the thinkers. The IWCC did their job in Mytnik to deny a case where the mechanism of “injury” was truly innocuous; picking up a very small item from the floor occasionally at work is a day to day activity performed by the general public. In light of this reversal, it may be hard to give accurate advice to clients as to what may or may not constitute an accidental injury in this State.

Two lasting thoughts from your editor

·         If you make every innocuous act like smidgen-lifting into an “accident”—IL WC claims cannot be defended. Adjusters will have to accept all medical problems that can be in any way said to arise at work as work-related, then pay benefits and WC costs will soar. If any physical/medical problem for someone with a job is going to be compensable, there will be no further need for lawyers on either side nor will we need to have lots and lots of hearing officers and internal IWCC appeals and reviewing courts.

·         In my view, you can’t possibly change this confusing situation via legislation and we feel our Governor should consider giving up that fight—you can’t legislate what I consider common sense. Whatever you legislate about “major contributing cause,” can be ignored, steered around or used against you. In the words of former IL State Chamber President Doug Whitley and others, “if you can’t change the thinking, you need to change the thinkers.” Consider meeting with new IL Supreme Court Chief Justice Lloyd Karmeier to discuss your overall concerns. I assure you he controls the gate and I am happy to explain.

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

Synopsis: Arbitrator TBA cases will soon have a new hearing officer—Governor Bruce Rauner announced two new Arbitrator appointments to the IL Workers’ Compensation Commission.

Editor’s comment: While we continue to share prior concerns which have been voiced repeatedly regarding the lack of complete transparency in the process of political dealings in Illinois, the two latest Arbitrators appear from background and past experience to be strong appointments if for no other reason than having exceptional experience within the Workers’ Compensation arena.

ü  Governor Rauner has appointed Michael Glaub to the Workers’ Compensation Commission as an arbitrator. He brings decades of experience in workers’ compensation matters, most recently as a partner at Hennessy & Roach in Chicago where he defended workers’ compensation claims for self-insurers and insurance carriers from inception through all potential levels of appeal. He previously served as a Senior Associate at both Spiegel & Cahill and the Roddy Law Group. Arbitrator Glaub earned his bachelor’s degree in economics and political science from Southern Illinois University and his law degree from DePaul University College of Law. Arbitrator Glaub is a seasoned workers’ compensation professional and based upon experience and his handling of claims in which both of our firms handled matters for common clients, Arbitrator Glaub will know how to manage a courtroom and has a solid perspective on what makes a claim compensable and which claims are questionable.

ü  Governor Bruce Rauner has also appointed Frank Soto to the Workers’ Compensation Commission as an arbitrator. Arbitrator Soto has also worked with multiple firms and law practices that which oversee workers’ compensation litigation, most recently owning his own law firm, Law Offices of Frank J. Soto, Ltd., where he concentrated on workers’ compensation, civil litigation, and personal injury administrative hearings, municipal, real estate, criminal, contract and business law matters. He previously oversaw administrative hearings conducted by the Illinois Office of the Secretary of State. Arbitrator Soto also has experience as the Deputy Director of Management Operations and Grant Manager at the Illinois Department of Commerce and Economic Opportunity. He received his bachelor’s degree in economics and business administration from Eastern Illinois University and his law degree from The John Marshall Law School. He lives in Bensenville where he also serves as Village President. Arbitrator Soto is another seasoned workers’ compensation professional and based upon experience defending claims presented by his office, Arbitrator Soto has an understanding of the system and rules of evidence and we anticipate he will be a proficient hearing officer.

This article was written by Shawn Biery, J.D., MSCC based on the press release of the Office of the Governor and his experience in past dealings with the new Arbitrators. Shawn is available for your questions via email at sbiery@keefe-law.com or via phone at 312-756-3701.

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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