Opinion Mondays: Later Today, IL Comm'n Will Say "Ooops" as to its Presumption of Compensability

Governor and Legislators Might Profit From Reading PA’s Protz Decision

The controversial “rule change” put in place two weeks ago by the Illinois Workers’ Compensation Commission, which purports to create a rebuttable presumption of compensability in favor of some Illinois workers who contract COVID-19, will be withdrawn later today in a hastily-called “emergency” meeting announced on Saturday by Governor J.B. Pritzker. In the governor’s brief statement, he defensively said the Commission’s action should not be construed as an acknowledgement that it had overstepped its authority. Of course, if the Commission hasn’t overstepped its bounds, why would it need to withdraw the rule change?

The governor’s statement signals, at least to me, that he was likely the moving force behind the presumption of compensability rule change in the first place. I have a tin ear regarding politics in general, and Illinois politics, in particular, so there may be an obvious answer that has just whizzed by me, but why didn’t Governor Pritzker just step to the microphone and camera and grant the rebuttable presumption by unilateral edict in the fashion of fellow governors from California, Kentucky, Missouri, and North Dakota? Must the Commission be his stenographer?

The governor hinted that the Commission will come back later with another similar rule change. As the Commission ponders that action, perhaps the governor and those in the state legislature could profit from reading the Protz decision rendered in 2017 by the Supreme Court of Pennsylvania [see Prose v. Workers’ Compensation Appeal Board (Derry Area School District), 639 Pa. 645, 161 A.3d 827 (Pa. 2017). While Protz is not, of course, “on all fours” with the issues currently being argued in Illinois, the politicians in the Prairie State might learn from Protz that there are important limitations on a state’s ability to delegate important policy decisions to unelected bodies.

Withdrawal of Rule Change Not the Commission’s Idea

Of course, the action to withdraw the rule change that will be taken later today does not spring from the collective mind of the Commission (or that of the governor). Indeed, last Thursday (April 23, 2020), Sangamon County Circuit Court Judge John M. Madonia issued a TRO blocking use of the rule at least temporarily. That order was entered in a lawsuit filed against the Commission by the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association. The suit claimed the Commission had acted beyond its powers in making the rule change. The plaintiffs argued that such a radical change required action by the state legislature. A host of other business groups supported the suit.

Haste Makes Waste

According to at least one report published by WTTW, a Chicago PBS news and programming source, the Commission acted out of expedience, since the regular rule-making process “can take months.” The need for quick action has recently been the reason/excuse used by the state governors mentioned above to create somewhat similar rebuttable presumptions by executive order [see my discussion here]. Such unilateral “emergency” action by governors and by the Illinois Commission is, however, deeply undermined by legislation passed in Alaska, Minnesota, Utah and Wisconsin. As I have earlier written, while I strongly disagree with the legislation because it is so discriminatory in nature, at least the discriminatory laws were openly debated, passed by both legislative houses within the respective states, and then — and only then — signed by the state governor. If the legislators in those states can somehow come to work and do their duty, why can the elected officials in Illinois meet as required in Springfield?

Protz is Instructive

As I mention above, Governor Pritzker and the Illinois legislature could profit from reading the Protz decision [for a full discussion of the case, click here, here, here, and here]. The Protz controversy sprang, for the most part, from the same sort of expedience-driven thinking exhibited by Governor Pritzker and those in the Illinois Commission.

Here is the Protz context: Pennsylvania, like many other states, utilizes the American Medical Association Guides to the Evaluation of Permanent Impairment (“the Guides”) in determining the level of impairment and, therefore, the level of permanent disability benefits paid to injured employees. But the AMA amends its Guides from time to time. The Pennsylvania legislature did not want to be bothered with having to amend the Workers’ Compensation Act each time the AMA published a new edition, so it merely worded 77 Pa. Stat. Ann. § 511.2(7) to require that physicians use “the most recent edition” of the Guides in their impairment determinations. The statute was enacted in 1996, when the 4th Edition was the “most recent edition” of the Guides. By the time of the Protz controversy, the highly controversial 6th Edition of the Guides was “the most recent edition.”

In Protz, the plaintiff contended that the wording of the statute amounted to an unconstitutional delegation of power to the American Medical Association. In short, the plaintiff argued that the Legislature had impermissibly appointed the AMA as its agent to establish the appropriate rules to be utilized in determining impairment. The AMA could, of course, change its rules without consulting the Pennsylvania legislature and, under the wording of the statute, the legislature was powerless to object. When had the people of Pennsylvania elected the AMA Board as its legislators?

The state Supreme Court agreed with the plaintiffs and said the statute amounted to an inappropriate delegation of power. The legislature was required first to establish primary standards and make a legislative determination that any particular edition of the AMA Guides conformed to that standard. It couldn’t pass the buck.

If Illinois’ Legislative Process is Too Slow, FIX IT!!

The lesson in Protz is that effective constitutional legislation cannot be obtained by shortcut. If, as apparently concluded by the Illinois Commission (and others), the legislative process within Illinois is too slow, FIX IT! Resorting to extramural “fixes” is outside the bounds set by American democracy. If the legislators are afraid or unwilling to meet in Springfield, fire them at the next election.