By Eugene Keefe

Synopsis: Splat!!!! Work Comp Grand Slam from our Appellate Court, Workers’ Compensation Division for Illinois labor.

Editor’s comment: Three major things happened the last two weeks on the Illinois legal/political/jobs scene.

First, the statistics on the U.S. economy again showed Illinois now has double-digit unemployment and is losing jobs to our sister states by the thousands. The Illinois unemployment rate was 6.7% a year ago. The Midwest U.S. jobless rate comes with no help from Illinois, where unemployment rose to 10.5% — a 26-year high, according to figures from the Bureau of Labor Statistics released Wednesday. Our state lost about 14,200 jobs from August to September 2009, according to the Illinois Dept. of Employment Security. The Midwest region of the U.S. was hit hard during this recession by job losses in manufacturing. Let’s all hope we can pull hard at the oars to get out of this recession.

Second, current Illinois Gov. Pat Quinn threw his hat into the ring and is now running for governor in next year’s elections. Gov. Quinn officially kicked off his campaign to keep his job Thursday with a statewide tour. The theme of that tour: Jobs and Growth for Illinois. "I've got three priorities: jobs, jobs, and jobs," the Democrat told supporters in nine cities, including Herrin, West Frankfort and Mt. Vernon. He said he plans to create jobs by investing in public works, high speed internet and education. The plan also focuses on encouraging entrepreneurship, marketing Illinois overseas, and investing in renewable energy like biodiesel.

Third, not one, not two but four unanimous and overwhelming rulings from our Appellate Court, Workers’ Comp Division for Illinois labor. In our humble view, with a single exception of reversing penalties, every factual and legal nuance went toward the labor side. Our goal in writing this article is to let our readers on both sides of the matrix understand the workers’ compensation system in this state is the “Lead Egg” of job creation—every one of these rulings points Illinois business towards our borders and does not show a state that is the least bit friendly to the interests of business. We urge everyone, including the Workers' Compensation Commission and reviewing courts; start to bring Illinois to the middle of U.S. workers’ comp systems and away from the bottom of the job-creation barrel.

A.    In Bassgar v. Illinois Workers' Compensation Commission, (No. 3-08-0781WC Oct. 15, 2009), a truck driver refused a route and was fired on the spot. As he was leaving, he admittedly “waved” at his supervisor—the record doesn’t indicate the nature of the wave or whether he had a single digit out as part of the wave. Both the fired worker and supervisor ended up battling and rolling around on the dock like a pair of silly schoolboys. You guessed it—after an extended scuffle, the goofy worker ended up with a broken arm. Claimant was later convicted of criminal battery for his role in the fight. To his credit, the arbitrator ruled claimant and his supervisor’s job had nothing to do with rumbling on a dock and benefits were denied. The commission followed Illinois’ amorphous fight rule to find claimant may not have “started” the fight and therefore gets full benefits to the tune of $35,065 plus interest. The unanimous Appellate Court affirmed. We have no idea why anyone agreed this individual was an employee-he had already been fired! We are also certain there is a human resources/benefits manager who viewed the outcome with the same relish Chicago Bears fans had for Chad Ocho-Macho-Cinco prancing in the end zone this past weekend.

We caution our readers to understand the Appellate Court followed Illinois law in their ruling. We assert this is one of those Illinois laws that need to be changed to make our state more job-friendly—no one should be “rewarded” for injuries suffered in a fight, particularly when they are convicted of a crime. The “non-aggressor-gets-full-benefits” rule isn’t in the Workers’ Comp Act or Rules. It was made up by the Courts and it should be eradicated by our judiciary at the earliest opportunity. We can see an award of medical benefits but why add lost time and permanency? We consider it ironic to see the third ruling below providing benefits to a recreational worker whose “job” was found to be recreation when the arbitrator accurately ruled this driver’s job had nothing to do with fighting. We also consider it ironic in the fourth ruling below to see the Appellate Court telling everyone it is not up to them to change the rules on marijuana/cocaine in the workplace and Illinois business needs to take that issue to the legislature—in this case, they are clearly providing benefits based solely on “judicial legislation” because the rule the courts created and continue to apply isn’t in the Illinois WC statute or rules.

In Washington District 50 Schools v. Illinois Workers' Compensation Commission, (No. 3-08-0923WC Oct. 15, 2009), the Court affirmed the Workers’ Compensation Commission that ruled a school teacher whose undisputed annual salary was $40,416.48 will have an “imputed” salary for workers’ comp purposes of $53,888.64. We consider the reasoning for this obvious windfall to be blurring—they took out the weeks from summer break in calculating the average weekly wage. In our view, an “annual wage” is an annual wage and not 9/12s of an annual wage. We wonder if a school teacher who took his/her annual pay in a single lump sum of $40K could claim they were paid 365 times $40K for workers’ comp purposes. The Commission and reviewing courts obviously are going to be buffeted with claims from everyone who takes what is commonly called a “vacation” and seek to have those days eliminated from the equation in calculating the AWW. Please note police and firefighters usually work 9-10 days a month or about 120 days a year—you can bet they are all going to claim their imputed income for workers’ comp purposes should be tripled.

In Elmhurst Park District v. Illinois Workers' Compensation Commission, (No. 1-08-2289WC Oct. 6, 2009), the Appellate Court reviewed a claim for an employee of a fitness facility who fractured his leg in a Wally-ball game during his shift, after a co-worker had asked him to participate or they would not have enough players and paying customers were in the game. Noting Section 11 of the Act bars recovery for voluntary recreational activities unless the worker is “ordered or assigned” to participate, the Court ruled the injury arose out of and in course of employment. The members of the Court analyzed the job and found it was part of the employee’s “job” to participate in voluntary recreational activities and accommodate customers. We ask the simple question—was it a “voluntary recreational activity?” If the answer to that question is yes and in our view it was voluntary and not mandatory participation, the risk of the activity and injuries arising therefrom is supposed to be the employee’s and not the employer’s.

In Szarek v. Illinois Workers' Compensation Commission, (No. 3-08-0530WC Oct. 20, 2009), the Appellate Court considered a claim where an apprentice carpenter was rendered a paraplegic after falling through a floor opening. There was no question the worker violated not one but two criminal laws to the extent he had both marijuana and cocaine in his system—last time we checked it was a violation of both state and federal law to “possess” either. The employer contended a high level of marijuana use detected via urinalysis was the proximate cause of fall. Again, the Court followed the judicial rule in Illinois workers’ compensation law which effectively requires evidence the worker was so intoxicated he/she has to have “abandoned employment” to lose the right to benefits. We consider this to be another rule that isn’t much of a rule—how can you get hurt at work if you have to be so intoxicated or stoned you can’t work? We also point out most unions don’t want workers to be on the job impaired because they may drop things on or otherwise injure innocent co-workers. As we indicate above, the Appellate Court pointed the employer to the legislature to remedy the judicially created rule allowing compensability. This worker will receive $23,184.20 per year for life—as of today, he has a 47.6 year life expectancy so the pay out, if he lives that long will be $1,103,567.90 plus medical bills.

If you start to notice everything in the Illinois workers’ compensation system seems to be slanted towards Illinois labor and giving everyone benefits at the highest conceivable level, please don’t shoot the messenger. We don’t see a positive effect on the job situation on this state until there are a few rulings that bring hope back to HR/benefits/safety managers in Illinois. To our readers who want all this kept quiet and out of the public light, we want you all to understand the public has a right to know and insurance premiums and self-insured reserves will clearly be affected by these sorts of rulings—we don’t control such things.

If you also notice not one but two of these claimants violated state and federal criminal laws and still will receive substantial benefits, you are correct. We wonder if there is a provision in Illinois law which does not allow a criminal to profit from the crime by receiving things like state mandated benefits. We appreciate your thoughts and comments on all these rulings.

Eugene Keefe is a partner with Keefe, Campbell & Associates in Chicago. This column was reprinted with his permission from the firm's email newsletter