Wednesday, August 24, 2016

The Shrinking Bargain - Part I

    In any writing it is perhaps best to put any actual or perceived biases out front. Honesty is always the best policy. When I am not teaching Workers’ Compensation or Pre-Trial Advocacy at the Southern Illinois University School of Law, I run an Illinois Workers’ Compensation and Personal Injury firm solely dedicated to helping the injured. With that being said, I truly do believe that both sides of the Workers’ Compensation fence have a symbiotic rather than parasitic relationship. Some of my best friends are defense attorneys and one of my partners at my firm came from a Workers’ Compensation defense firm. I have also had the high honor of teaching many of these said defense attorneys' children at the law school.

    Comp is at its essence a grand bargain between employees and employers. Employees in most systems in one form or another do not have the burden of proving the prima facie case of negligence and in return employers do not have to face juries who can award pain and suffering damages. However the grand bargain has taken many twists and turns along the way to where we find ourselves today. One such twist is how jurisdictions handle repetitive trauma cases, i.e. cases in which the employee alleges their current state of ill-being is both work related and was caused by trauma of some form over an extended period time rather than falling off of a ladder.

    In Illinois, these repetitive trauma injuries are supposedly just as compensable as getting hit by a truck. Of course, the injured continues to possess both the burden of proof and persuasion in the case. However, recently Illinois has gone through its normative five year reform frenzy. As a part of that reform, the Act in Illinois specifically limited the amount of compensation owed for carpal tunnel cases to 15% loss of use of the hand. Prior to this legislative carve out, we were routinely settling these cases for 17.5% loss to 20% loss of a hand. The result of the carve out has been to decrease the amount of compensation we see in these cases to between 10% and 12.5% loss of use of the hand. Why? Because with regards to repetitive trauma the bargain is shrinking. Have the injured received any quid pro quo for the shrinking bargain? No.

    Why is this? During the reform frenzy which culminated in the 2011 changes to the Act, I had the privilege to testify in front of an Illinois House of Representatives bi-partisan commission on the subject of the pending reform. I, and many others during these hearings, heard the same philosophy whispered in a mantra like manner, “We are losing businesses and therefore jobs to our sister states because Workers’ Compensation rates are so high in our state.” Allegedly something had to be done. It was, and the bargain began to shrink.

    The stated, and I believe for the most part sincere forecast, was that if we could lower the number and value of claims then rates would go down and businesses would therefore stay, or even new businesses would choose to operate out of Illinois. This hasn’t happened. If we are to continue to believe in a fair bargain legislatures must look to balance the bargain. Certainly continuing to gravitate towards a system of law that discounts any accident that isn’t traumatic endangers the bargain the founders of the Workers’ Compensation movement had in mind. Perhaps, however, legislatures across the county will continue to restrict repetitive claims, but in doing so, surely they must be mindful of the need to modify the other side of the equation as well.

    From an instructional standpoint, Professors and adjuncts should explore this idea with their students. I do. It is fascinating to watch them and listen to their generally unbiased thoughts on the issue. In most of my classes throughout the years, they have on their own, without much research or guidance, come to make the same arguments mentioned previously in this post. Perhaps there is something to the idea of a set of views we are all inherently imbued with after all…. Until next time, thank you for reading our blog.


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