Central Illinois Business Magazine
CHAMBER VIEW          December 2013

Judicial activism is influencing workers' compensation


Doug Whitley

By Doug Whitley
CIBM Contributor

The Illinois Chamber recently released its latest public policy research document, "The Impact of Judicial Activism in Illinois: Workers' Compensation Rulings from the Employer's Perspective." While progress has been made with the governor's office and the Illinois General Assembly toward improving Illinois' workers' compensation system, there has been little attention directed towards the courts. Yet the courts have had a huge influence upon employers' workers' compensation costs and the state's business climate.

The Illinois Chamber evaluated significant workers' compensation decisions from the appellate and supreme courts that are widely considered as expanding employer liability and contributing to Illinois' reputation for having a costly workers' compensation system.

Illinois' high workers' compensation costs are a major contributor to our low economic development rankings. In our opinion, it is clear the majority of the judiciary rulings 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.

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."

• "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."

The report recaps 19 cases and revisits recent legislative changes and interstate competitiveness. It sets forth an agenda for legislative priorities that would help curb the increasingly liberal judicial interpretation of the act.

The legislative agenda that should be pursued by 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.

• 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.

• 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.

The full report is available online at the Illinois Chamber's website (www.ilchamber.org).

The campaign for substantial changes to the Illinois workers' compensation system must continue. 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.

Doug Whitley is president and CEO of the Illinois Chamber of Commerce. He can be reached at 312-983-7100 or dwhitley@ilchamber.org



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Fresh edition of CIB

By Bridget Broihahn

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Bridget Broihahn is editor of Central Illinois Business magazine. She can be reached at 217-351-5695 or bbroihahn@news-gazette.com.