Monday, January 2, 2017

Workmen's Compensation: Rauner's New Line in the Sand

Workmen’s Compensation: Rauner’s New Line in the Sand

There’s an old standard joke told at Republican cocktail parties.  The short version goes something like this:  After being saved by three elderly fisherman in a small dingy, a beautiful mermaid decides to reward their behavior by giving each of them a miracle.  The first old man’s broken and twisted hands are suddenly made supple and youthful.  The second angler’s darkened eyes behind inch-thick glasses become unexpectedly clear and bright.  The third old fisherman, whose back is bent and misshapen by years of toil, yells out, “No! Don’t!  I’m on disability.”

It doesn’t take too much deconstruction to arrive at the nasty barb that sits within the middle of this little tale.  Those on disability or claiming injury would rather remain that way instead of working, and at the expense of the employer or the insurance companies.

If you listen to the Republicans in the Illinois General Assembly, you’ll hear a number of terms thrown about with deadly serious looks and a somber shaking of heads.  Workmen’s Comp and Causation will be re-echoed in the next few months’ after one more failed budget, and Governor Rauner will cite the burden of those expenses on businesses in Illinois as the singular reason for our state’s failure to recover economically.  He’ll be sure to add property taxes as well. 

The definition of causation has changed in the last few years primarily as a result of legal interventions on the state level.  In short, causation refers to the legal obligations in a workplace accident and the subsequent compensable responsibility to provide for a worker’s recovery or permanent disability.

In other words, $%@& happens, and if it happens on the job, the employer should assist the injured worker.  It’s not a new idea, and, in fact, for as long as $%@& has happened, there has been some kind of workers compensation, believe it or not. 

Records of workers compensation can be traced all the way back into the Old Testament, when warriors (generally a pretty common form of employment in those days) were reimbursed for loss of limb or appendage.  In some cases, rewards were based even upon the inches of flesh lost.  Yikes!

Quite probably the form of workers’ compensation most closely resembling our current form of insured workers reimbursement can be found in the high seas adventures of the pirates of the wind-tossed Caribbean.

Pirates, before entering into an expected bloody and dangerous fray, often pooled their expected swag before the battle; and the money would be used to pay out for loss of limbs or other parts of a daring swashbuckler – especially parts that would be necessary in future pillaging and plundering. 

In fact, the loss of a right (or dominant) arm was reimbursed at a higher level than the left (or less dominant) arm.  Eyes were also insured, most especially that last one.  Blind pirates were given monetary amounts that acted as a small sinecure for the rest of their lives.  Captains also added large amounts of promised booty to these “insurance” pools, for they knew that a brigand was more likely to fight wildly and recklessly if he knew he was covered for losses to his person.  Pirates valued their work forces and sufficiently rewarded sacrifice. 

And you expected a similarity to politicians?

In the U.S., workers compensation laws are determined by each state, although there exist general guidelines on the federal level.  Fifty states each have a different set of legal requirements for workers compensation, and you can bet that “right to work” states have far different schedules for benefits than other states.  With severely limited revenues since 2008, many state legislatures have been looking frantically for ways to increase revenues; and in many cases, increasing by cutting costs on the backs of those who needed or required state assistance in the years leading up to the Great Recession. 

In an effort to alleviate costs of doing business for companies in a terrible economy, states like Illinois provided loopholes for taxes and other monetary perks; but this slippery slope required more than just tax breaks.  Enter insurance cost reductions stage right. 

When it came to determinations of causation in workers compensation claims, for example, states like Kansas, which had initially a threshold level that stated if the job activities contributed “one iota…” it was deemed compensable…have now changed to the terminology of “must be…the prevailing factor in injury.”   Most states hold to the threshold for compensation if “more probably than not” the injury was workplace related( . 

Bruce Rauner, like several of the previous GOP gubernatorial candidates, has declared his intention to bring a better business environment to Illinois by (1) getting rid of the Quinn tax hike,  (2) enacting tort reform and limiting lawsuit parameters, and (3) by reforming the workers compensation laws to make Illinois more competitive with other states.

“Reform,” for those of us who may have pensions is politic-code for “cut.”  Herein Rauner echoes what we can read in the Illinois GOP webpages.  According to the Illinois GOP, the state still lacks the clear standards of causation, and because of this Illinois employers pay more than other states for workers compensation.  Senator Dale Righter (R-Matoon) worried that we have lost our competitive edge over other states because we provide too much for injured workers.

Righter said, “Causation does not negatively impact workers who are hurt on the job, it simply protects employers from those who try to take advantage of the system.  This will save on workers’ compensation insurance rates and help to create much needed jobs in Illinois.” 

Will it?  A study by Ralph Martire of the Center for Budget and Tax Accountability does not suggest the climate will improve by limiting the opportunities for those injured in the workplace to receive compensation (   

In fact, a recent article in Crain’s examines a very different mix of issues – ones much more systemic to the loss of factory jobs to overseas countries, the aging and unskilled workforce, or even and overly dependence on capital-goods makers.  Not Workmen’s compensation.

Governor Rauner and Senator Righter would disagree with those last words, probably vehemently, but this belies a philosophy of relationships they embrace more than likely the actual data.   This is why Governor Rauner is quick to say, “I hear from business leaders…”  Or “They tell me that…”  In their view, it will always be a battle against those workers who will take advantage of the employer at every turn.


Illinois GOP legislators have wanted the threshold for compensation revised to “major contributing cause,” signifying that the employee must prove that more than ½ the injury must have been created by incident(s) in the workplace.

If, like many workers in this economy, you happen to find yourself working part time in multiple jobs; and you are severely injured on one job, your respondent (responsible) employer need not pay you anymore for the money you will lose at the other job(s).  Example:  I lose a disc in my back working at the seed store carrying bags.  I can no longer work part time at the gardener store where I had another part time job, and I can no longer work at the UPS dock where I had a part time job unloading trucks.  I receive the compensation for part time at the seed shop…and am likely terminated at my other two jobs. 

If I work for a company that demands I travel from one place to another, the GOP now proposes that am covered for any accident occurring while I am in the performance of my job, but if I am injured on the way to a lunch or any other destination which could be construed as “out of specific job description” I am denied compensation.  They use the phrase “actively engaged in the duties of employment…” 

If my workplace injury is a serious “aggravation” of a previous condition (let’s say a heavy object falls upon my hand which is already a bit arthritic), I can only be compensated for the “aggravation” until determined that it is just my arthritis acting up. 

And, if you were to suddenly to become ill or diseased spontaneously, but there was no direct link to your duties of employment, it would be deemed idiopathic and no compensation could be awarded.  Better not be headed toward diabetes or working in an area where chemicals are pooling under your boots. 

Oh, and remember that value differential for right and left arms?  Well, there are value differentials between shoulders (think rotator cuff injury) and arms; and hips (think dysplasia) and legs; BUT the proposed laws would change terminologies to include shoulder as arm, and hip as leg.  That will reduce payouts by insurance companies and might decrease costs for insurance payments for small businesses sometime in the next millennia.

One of the reasons we went to worker’s compensation in the United States in the late 1800’s and early 1900’s was because it was one way to prevent negligence suits by workers against major companies, taking those companies to court and being awarded major settlements.  Think about it. 

Workers compensation is an agreement that I won’t sue you if you promise to take care of me while I work for you – even as I give you my physical strength and loyalty over my work life.   

We are back to rewarding sacrifice.  

Springfield doesn’t do that…never has.  And Rauner never will.

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