Judicial activism influencing workers’ comp

By Douglas L. Whitley

The Illinois Chamber of Commerce recently released its latest public policy research document entitled “The Impact of Judicial Activism in Illinois: Workers’ Compensation Rulings from the Employer’s Perspective.”

The report recognizes that while progress has been made legislatively toward improving Illinois’ workers’ compensation system, there has been little attention directed towards the courts. The courts have had a huge influence upon employers’ workers’ compensation cost and the state’s business climate.

All but two of the 19 decisions of the Appellate and Supreme Courts reviewed in this report have been decided within the past 10 years, 11 of the decisions have been handed down within the past five years. Illinois’ high workers’ compensation costs are a major contributor to our low economic development rankings. Media coverage of scandals and abuse in the workers’ compensation system and a very candid expose’ on the part of the Illinois Attorney General’s office provide additional evidence of a system in need of reform.

In our opinion, it is clear the majority of the judiciary sitting on the courts ruling on workers’ compensation cases have not only ignored the obvious, but their rulings have repeatedly worked to undermine efforts to improve the state’s standing in the eyes of Illinois employers.

It is obvious that judicial activism – judicial discretion in interpreting Illinois’ workers’ compensation law with the clear objective of expanding compensability for workers’ compensation claims – is embraced by the elected justices and those appointed to the Appellate Court that reviews workers’ compensation cases. As the decisions summarized in the report illustrate, judicial activism embodies the use of judicially created or adopted doctrines, concepts and broad and varying definitions and terms, none of which have any statutory basis. Additionally, judicial activism involves the mixing and matching of rules of statutory construction where statutory language is silent, ambiguous, and even where the specific language of the Act mitigates against finding compensability, which the judiciary easily defends by relying on its historic characterization of the Act as remedial. The report concludes:

“…the judiciary is not in line with policy objectives aimed at promoting job growth and reversing the economic trajectory of recent years at a critical point in time when business, labor and government should be collaborating to promote and restore full employment and economic prosperity for the citizens of Illinois.”
“Indeed, the pattern of adverse decisions being rendered by Illinois Courts in workers’ compensation cases is such that an employer or insurance company may well conclude that no matter how egregious the indignity, the rational mind suggests settlement.”
“Judicial activism allows the judiciary to create, adopt, expand, relax, reverse or reject prior precedent as necessary (from the perspective of the judiciary) to arrive at outcomes favorable to the injured worker.”
“Several Supreme and Appellate Court workers’ compensation decisions have implicitly or explicitly put the General Assembly on notice that, absent an expression of legislative direction, the court’s path is set.”
“It is incumbent upon the General Assembly to revisit the Act and offer a more restrictive interpretation of these fundamental provisions because it is obvious the higher courts are ignoring and undermining policy goals to improve the business climate, reduce unemployment, and elevate the state’s standing in multi-state competitive measures.”

The legislative agenda that should be pursued by the members of the Illinois General Assembly would:

Define when a “traveling employee” is within the scope of “arising out of and in the course of” employment. The Appellate Court’s decisions since 2007 dramatically expanding the scope of what constitutes a “traveling employee” have catapulted this topic to the top of the agenda. Commuting to or from work or engagement in personal activities outside an employer’s workplace rules should not be considered arising out of and in the course of employment.
Define when an injury or disability “arises out of and in the course of” employment. An employee’s condition must be causally connected to an accidental work injury for him to obtain benefits under the Act.
Awards for “person as a whole” injuries should be offset by employer credits if the employee’s subsequent injury is to the same body part as a prior workplace injury. On a related issue, the legislature must reverse the recent Will County Forest Preserve District case to restore the long-standing precedent of “shoulder/arm” permanent partial disability awards.

The Illinois Chamber is committed to leading the campaign for another round of workers’ compensation law changes. We are of the opinion that the status of the state’s workers’ compensation laws and high costs associated with doing business in Illinois must become a major theme in the 2014 campaign election cycle. Candidates for executive, legislative and judicial offices must be aware that employers and voters expect them to revisit the subject and adopt further improvements.