Synopsis: Madigan Quits!!!! What Does It Mean for IL Work Comp and Illinois Government?


Editor’s comment: Starting in November 1970 and continuing to the end of this month, Illinois voters have seen the longest tenured state legislative leader in U.S. history in the person of Michael J. Madigan. He has had an interesting and bittersweet run. I can’t stop giggling about his statement that he “dedicated [himself] to democracy.” What an absolute hoot!—in my view the State of Illinois under Madigan has become the “least democratic” State in the history of States.


What Does Madigan’s Departure Mean to IL Workers’ Comp?


Well, I have been writing this KCB&A IL WC Law Update since 1993. If you recall over the years, I have criticized what I have called the “Secret Squirrels” of IL WC because no one ever tells the public when there is an opening for an Arbitrator, Commissioner or Chair-person. These positions are filled in total secrecy—I don’t feel that is “democratic.” I feel strongly and my sources have all told me that secrecy concept came straight from Mike Madigan. In other states, the head of our equivalent of the IL WC Commission is advertised openly and interviews are conducted in an “open meetings” environment. In contrast, what happens in Illinois is business pays every cent of the cost of administering workers’ comp while having very little say as to who our hearing officers and administrators will be.


Similarly, lots of IL WC case law happens in a shocking and unexpected fashion, like the recent ruling in McAllister that has everyone on the defense side shaking their heads about how suddenly ultra-liberal Illinois work comp got even more mega-ultra-liberal. Trust me, former Speaker Madigan had great sway over who would be a judge/justice and a member of the IL WC Appellate panel. Madigan controlled/created our wildly high judicial compensation that has to be the most expensive and lucrative in the U.S. for salaries and fake IL gov’t pensions.


Please note almost all IL State positions under Madigan have one salary concept across a State that has wildly different cost of living values. Nothing was ever done under former Speaker Madigan to save taxpayers a couple of bucks. For example, a judge or justice in the Chicago area making about $200K is doing well—the same salary for a judge/justice in Galesburg or Freeport or Collinsville may be the highest salary of any worker in that entire county!! Why does that happen? Well, if you want “control” or sway with the judiciary, one way to get that done is to “over-pay” or “over-retire” them. This is just one example of what I call “vote-buying.” If you give a worker way too much money to do way too little, you have a loyal voter and they are going to tell their friends and family to vote for you.

Please also remember Mike Madigan and his team almost single-handedly turned Illinois from a two-party State to a one-party State by gerrymandering just about every significant IL political district into Madigan’s own image and likeness. This means things aren’t going to return to “normal” to have Republicans and Independent voters have some say in this supposedly “democratic” IL State government until decades pass and people move around, as we do.


We don’t see things in our one-party State getting better for IL businesses any time soon. I feel our WC rates are going to continue to spiral in an unchecked fashion. I feel our hearing officers are going to be professional and follow the law but the framework surrounding them is going to lead to higher and bigger WC settlements and awards. I have noted the new trend that everyone on the Plaintiff/Petitioner side have started to seek Body as a Whole awards for literally any condition and injury—this means IL business isn’t going to get credit for anything paid in past claims. I forecast Claimants receiving lifetime awards of 200%, 300% LOU and more of the body—it isn’t going to happen on a broad spectrum on an overnight basis but I am seeing this happening right now and I don’t see it stopping.


Big picture—Madigan has moved on. We are sure he was a driving and dynamic force in the IL WC system. Watch this space for new developments and cost drivers moving forward.


What Does Madigan’s Departure Mean to IL Gov’t?


Well, from my perspective, IL Gov’t is facing challenges that are going to be worse until someone fixes them. We have the worst credit rating of any State in U.S. history and owe more than $150B in debt. We have the highest combined sales, real estate, income and other taxes of any U.S. State—we can attribute some of that to our departed “dedicated to democracy” leader. You can’t set up fake gov’t pensions to require taxpayers to pay spiraling retirement costs of retired State workers for the rest of their life, as Madigan did. You can’t force taxpayers to pay almost 100% of retired State workers’ healthcare, as Madigan did.


Does Former Speaker Madigan Depart IL Gov’t as a Billionaire?


I don’t know why the media never mentions the zillions of dollars Mike Madigan clearly made in his “side-job” as a RE property tax appeal attorney. If you take a look at this article, you may see what I mean:


In just five years of a fifty year career, Mike Madigan’s firm got $1.7B (yes, billion!!) in tax reductions for their clients. To my understanding they typically charge 33.33% fees on those reductions. Simple math indicates they would make close to $600M in fees for that five year period. Please note they may discount some of these fees but even with dramatic discounts, they could be making $300M, $400M, $500M, right? Over the 50+ years he was involved in the RE Tax appeal process, Mike Madigan and his law firm had to bank something like a billion or more.


Please also note I never once heard IL State government conduct investigations or hearings into why our Cook County Assessor always routinely screws up our RE tax assessments to then have other private attorneys file fake “appeal” documents that aren’t legal at all. No one briefs a Cook County RE tax appeal and there are typically no oral arguments in RE tax fake appeals. Despite it being a billion-dollar legal market, no law school in IL teaches Cook County tax appeals and, to my knowledge, there has never been a case that reached the IL Supreme Court from such “appeals.” Please note RE tax appeals are just math, folks—use one of those new-fangled “computers” to get it right the first time and stop the goofy, fake RE tax appeal process. How many factors do they have to consider to insure your RE tax bill is accurate—20, 500, 5,000? Trust me, computers handle such challenges in about a millisecond. We are being flummoxed to think these RE tax “appeals” are real. We need what everyone else in the country appears to have—the assessor hits the right number and you owe it. You don’t have to waste time with fake appeals and pretend you got a better deal because your attorney filed a goofy form and cut themselves in for a third of your supposed “savings.”


As I said above, Madigan has moved on. I appreciate your thoughts and comments. Please post them on our award-winning blog.


Synopsis: Biometrics Act Litigation Moving to IL Supreme Court—IL Business Keep Your Fingers Crossed!!!


Editor’s comment: High Court to Review Decision Holding WC Exclusive Remedy Doesn’t Bar Privacy Act Claim. Big picture, this is business-busting legislation if it isn’t blocked in the courts. You may note the tech company Facebook recently settled an Illinois biometrics claim from their users for Illinois-based biometric violations for $650,000,000! The difference between the Facebook litigation and this case is the employer-employee link.


Basically, lots of employers were using biometrics or “touch id’s” to track employee hours and other stuff. The Biometrics Act provides guaranteed damages for each time a biometric was improperly saved or recorded. For one of your workers who checked in and out every morning and night, you could owe them thousands and thousands of dollars plus attorney fees and costs. Obviously, your workers will be laughing all the way to the bank to receive such largesse.


So what just happened?—last week, the Illinois Supreme Court granted leave for 14 Illinois employers including lead Defendant Symphony Bronzeville Park to consider an appeal of an appellate court decision holding that the exclusive remedy of workers’ compensation did not prohibit a worker from pursuing a lawsuit for alleged violations of the Biometric Information Privacy Act. The high court announced its decision to accept the appeal on Wednesday. We can expect this is going to be pending before our highest court for some time.


The Illinois Appellate Court in September 2020 published a decision in Marquita McDonald v. Symphony Bronzeville Park, et. als., holding that violations of the Biometric Information Privacy Act are not precluded by the exclusive remedy of workers’ compensation.


Plaintiff McDonald filed a class action accusing Bronzeville of violating the Biometric Privacy Act, which prohibits businesses from collecting biometric information without notifying a person in writing that it is being collected and stored. She alleges in her complaint that she was required to provide biometric information to use a fingerprint-based time clock system between December 2016 and February 2017. Trust me, she is a very carefully picked “point of the spear.” It is hard to imagine


Defendants and parties amicus in Symphony Bronzeville Park, et. als. argued Section 5 or the exclusive remedy provisions of the IL Workers’ Compensation Act barred the lawsuit.


The Illinois Appellate Court in September said exclusive remedy can’t preclude a complaint for statutory damages that isn’t compensable under the state’s workers’ compensation laws. The IL Appellate Court said it failed to see “how a claim by an employee against an employer for liquidated damages under the privacy act — available without any further compensable actual damages being alleged or sustained and designed in part to have a preventative and deterrent effect — represents the type of injury that categorically fits within the purview of the IL Workers’ Compensation act, which is a remedial statute designed to provide financial protection for workers that have sustained an actual injury.”


With respect to the members of the IL Appellate Court who ruled in this claim, I agree with Defendants—you do not have to be “touched” to receive WC benefits and be “actually injured” in IL. There are numerous cases, like Pathfinder, where the discomfiture of a co-worker in seeing a co-worker seriously injured was itself an “actual injury” and benefits were awarded and paid. There is a City of Springfield ruling where a police officer asserted harassment and that was found compensable under the IL WC Act. Basically, any “personal injury” between employer and employee is supposed to be workers’ comp.


And finally, I don’t consider the “incident” in McAllister mentioned above to be an “actual injury.” The guy stood up and felt a problem with his leg. The “actual injury” described by such facts is hogwash but if we are going to define standing up as an “injury” then biometric dysfunction as it arises vis a vis employer and employee should be an “actual injury” to block common law claims against the employer. You can’t have it both ways. In the WC setting, we may expect awards/reserves in the range of 2-20% BAW for biometric dysfunction, I would bet.


We will have to wait and see. For news as it unfolds, watch this space. I appreciate your thoughts and comments. Please post them on our award-winning blog.