Latest Post | Last 10 Posts | Archives
Previous Post: Today’s number: 48 percent
Next Post: What could possibly go wrong?
Posted in:
*** UPDATE *** Take a look at the newly highlighted text below. A bone of contention in this suit is a workers’ comp claim filed by Stephanie Yencer-Price. Ms. Yencer-Price was one of the plaintiffs in the landmark Harris v. Quinn case.
Yep, she didn’t want to pay union dues, but now the union is fighting for her right to file a workers’ comp claim.
Seems fair. /snark
* Also, an attorney for the workers just called and asked a valid question: If the state isn’t on the hook for these workers comp claims, then who is? The folks who qualify for these attendants are generally poor and disabled. It’s not like they can pay the claim.
So, what happens when an attendant is injured and can no longer work?
It’s the emergency room and welfare, apparently.
[On November 13th] the Illinois Department of Central Management Services (CMS) filed a lawsuit against Illinois Attorney General Lisa Madigan alleging she is refusing to discharge her duty to properly defend the state against certain workers compensation claims.
The complaint, styled Tyrell v. Madigan, is linked here. The lawsuit was brought in the name of Tom Tyrell in his capacity as Director of CMS. It pertains to home care workers called “personal assistants.” […]
The central assertion is that Madigan is refusing to put up an obvious and easily supported defense on behalf of taxpayers — that personal assistants are not employees of the state. CMS recites, in the complaint, a list of reasons to support its position, including the recent United States Supreme Court Decision in Harris v. Quinn. That decision, as CMS describes in the complaint, held that personal assistants are private sector employees for all purposes except collective bargaining over wages.
“In addition to refusing to perform her personal, professional and constitutional duties in accordance with law,” the complaint says, Madigan has refused requests by CMS for appointment of a special assistant attorney general to properly defend the claims.
The lawsuit asks the court, essentially, to throw Madigan off the case and appoint a special assistant attorney general to do the job.
…Adding… I’m told that AG Madigan was on the other side of this issue before Gov. Rauner took office.
…Adding More… From CMS…
Hi Rich,
I saw your post and wanted to flag that during previous Administrations, the AG took the view that the personal assistants are not state workers. Here is some info on background on the case:
Tom L. Tyrrell, CMS Director v. Lisa Madigan, Illinois Attorney General
Tom Tyrrell, in his official capacity as CMS Director, administers the Workers’ Compensation program for state employees in the State of Illinois. The Attorney General is preventing him from denying the workers comp claim of a personal assistant who has acknowledged that she is not a state employee and a Sangamon County court has previously ruled was not a state employee.
Personal Assistants are hired by individuals, not by the State, to provide in-home care. One such Personal Assistant, Stephanie Yencer-Price was allegedly injured while performing services to her employer. She then filed a claim for Workers’ Compensation benefits.
Yencer-Price was one of the plaintiffs in the class action lawsuit that reached the Supreme Court and where Yencer-Price argued and the Supreme Court decided in the Harris v. Quinn decision on 6/30/14 that Yencer-Price and other personal assistants are not state employees.
On July 18, 2014, an attorney in the Attorney General’s Office, Amy Oxley, sent an email in response to a worker’s compensation claim by another personal assistant that the Attorney General’s Office would dispute all such claims because of the Supreme Court ruling “that indicates that Personal Assistants, like the petitioner, are not employees of the State of Illinois.”
On July 28, 2014, the Workers Compensation Bureau Chief in the Attorney General’s Office, Jill Ottee, sent an emails directing that all attorneys file Motions to Dismiss in each of their personal assistant cases because the Supreme Court had ruled that personal assistants are not state employees.
On August 6, 2014, Assistant Attorney General Amy Oxley filed a motion to dismiss in Yencer-Price’s workers’ compensation case and stated that the Supreme Court had “analyzed the same factors and evidence that the Commission reviewed in past cases involving personal assistants and determined that as a matter of law, personal assistants are employees of the customers and are private employees” (emphasis in brief). She added “the Supreme Court’s legal determination of the employment status of personal assistants is now controlling authority on the issue.”
On January 20, 2015, in a separate subrogation case pending in Sangamon County involving Yencer-Price, Assistant Attorney General Kmett reversed course and said they were withdrawing their motion to dismiss in the workers’ compensation case because they had “determined” that the Supreme Court ruling in Harris does not “apply to whether or not personal assistants were employees for workers’ compensation purposes.”
On April 20, 2015, the Sangamon County Circuit Court rejected the Attorney General’s argument in the subrogation case and found that “there was no employer/employee relationship between the State of Illinois and Ms. Stephanie Yencer-Price on the date of the accident.” The Attorney General did not file an appeal.
CMS directed the Attorney General to assert this defense in Yencer-Price’s pending Workers’ Compensation case or requested if the AG would not assert such a defense, that they allow CMS to retain its own outside counsel. On August 24, 2015, the Assistant Attorney General refused to allow CMS to be separately represented and refused to raise the defense in Yencer-Price’s case.
On November 3, 2015, Assistant Attorney General Oxley sent an e-mail to CMS saying that Yencer-Price’s workers compensation hearing had been requested and further stated that “the Office of the Attorney General will not be raising the defense of no employer/employee relationship at trial.”
CMS, therefore, was compelled to file this lawsuit against the Attorney General seeking to have its own representation so that it can assert this defense that has previously been recognized against this very same personal assistant.
In analyzing this issue, CMS and Director Tyrrell consulted numerous legal sources, all of which clearly support the determination that Personal Assistants are not employees of the State. Among these sources are (1) the United States Supreme Court decision in Harris v. Quinn, in which the Court explained that Illinois Personal Assistants are not state employees for purposes of Workers’ Compensation program; (2) recent decisions from Illinois courts confirming that Personal Assistants are not state employees; (3) the Attorney General’s own successful arguments in prior cases that Personal Assistants are not state employees; and (4) numerous statutory and administrative references confirming the same. The overwhelming weight of authority place beyond doubt the correctness of CMS and Director Tyrrell’s determination.
Pointing to the obvious ethical conflict that would make it impossible for the Attorney General to serve as CMS’s lawyer before the Commission, CMS requested that the Commission appoint separate counsel to represent CMS before the Commission. This is standard practice in cases when the Attorney General has an ethical conflict that makes it impossible for her to render adequate representation to her client. The Attorney General opposed the request to appoint separate counsel for CMS, insisting that the Attorney General be allowed to represent CMS even though she is refusing to defend CMS’s decision to deny benefits to the Personal Assistant.
By filing this lawsuit, Director Tyrrell is asking for nothing more than what appellate courts in Illinois have already agreed is a government official’s right in cases of clear conflicts with the Attorney General. Just earlier this year, the Fifth District appellate court, relying on precedent from the First District court of appeals, concluded that the Comptroller may speak in court through her own counsel in a case where the Attorney General refused to represent the Comptroller’s position. Director Tyrrell is only asking for the ability to articulate to the Commission how and why he reached the conclusion that the Personal Assistant’s claim for Workers’ Compensation benefits should be denied because she is not an employee of the State of Illinois.
What Director Tyrrell cannot do is stand idly by while the Attorney General is misrepresenting his interest in court. That is especially here, where the Attorney General’s position would mean paying out Workers’ Compensation benefits in situations where the State is not the responsible party. Illinois taxpayers cannot afford to spend money the State does not have on claims that the State is not legally obligated to pay.
Please don’t hesitate to reach out if you have any questions.
Best regards,
Meredith Krantz
Deputy Director & Public Information Officer
Illinois Office of Communication and Information
Department of Central Management Services
posted by Rich Miller
Monday, Nov 16, 15 @ 11:08 am
Sorry, comments are closed at this time.
Previous Post: Today’s number: 48 percent
Next Post: What could possibly go wrong?
WordPress Mobile Edition available at alexking.org.
powered by WordPress.
Real tough guys there @ CMS. How much do home health care workers make again?
Comment by low level Monday, Nov 16, 15 @ 11:12 am
CMS is correct. Personal assistants are not State employees. Unless they work for a home health agency they are essentially self-employed and the person receiving the assistance is considered the employer in terms of hiring/firing.
Comment by Cubs in '16 Monday, Nov 16, 15 @ 11:15 am
==Real tough guys there @ CMS. How much do home health care workers make again?==
You realize that when the State has to make payments on these claims, they’re doing it with (scarce) tax dollars, right?
Comment by so... Monday, Nov 16, 15 @ 11:17 am
Rauner is right about one thing. We need tort reform, starting with his office.
Comment by 360 Degree TurnAround Monday, Nov 16, 15 @ 11:18 am
Good grief.
Next up, maybe CMS can sue RAUNER for “refusing to perform his personal, professional and constitutional duties in accordance with law,” ya know–balanced budget, governin’ and stuff
Comment by Langhorne Monday, Nov 16, 15 @ 11:19 am
Does the Governor’s staff often sue other Constitutional State Office holders? That’s helpful.
Comment by walker Monday, Nov 16, 15 @ 11:22 am
Let’s say CMS (Rauner) is successful here, and the “non employee” defense is upheld. Who then takes care of the injured workers? Answer: taxpayers. The injuries don’t go away. The inability to work and provide for their families doesn’t disappear.
Comment by unspun Monday, Nov 16, 15 @ 11:24 am
There’s a long line of cases allowing these workers to file for workers compensation. The AG is following the law, but Rauner doesn’t like it.
Comment by Anon Monday, Nov 16, 15 @ 11:27 am
A purely political move by the frat boys.
Comment by Austin Blvd Monday, Nov 16, 15 @ 11:29 am
@Anon
=There’s a long line of cases allowing these workers to file for workers compensation. The AG is following the law, but Rauner doesn’t like it.=
Actually, the suit is about her NOT following the law, Anon, and the fact that there’s a “long line” of cases here probably is more indicative of abuse of this system than real need.
I suspect there are a lot of “back pain” cases here that don’t have a provable organic basis. I understand that’s where a lot of the fraud happens.
You know the cases. Someone in streets and San, FD or PD claim and injury for large disability where they can’t even do desk duty, but they shovel their snow by hand and plant trees in their back yard.
Comment by Arizona Bob Monday, Nov 16, 15 @ 11:34 am
So AG Madigan picks a side of the law based on who is in the Governors mansion? I’ve always thought see was pretty okay but if this is true she’s got some bigger issues. Isn’t she supposed to defend the state based on what is, you know, best for the state?
Comment by Anon2U Monday, Nov 16, 15 @ 11:37 am
Has the a.g. succumbed to the feud between her party chair and the governor?
Why would she suddenly change her tune if there was no legal basis for doing so?
Comment by Anonymous Monday, Nov 16, 15 @ 11:42 am
Waiting to see the AG response before I make any leap to judgment.
Comment by Norseman Monday, Nov 16, 15 @ 11:42 am
I have been told that in Illinois W/C responsibility goes back to who pays the employee, and if they don’t have W/C coverage the responsibility goes up the ladder to whoever pays the one who pays the employee. A person can not normally buy W/C insurance on themselves.
Comment by DuPage Monday, Nov 16, 15 @ 11:55 am
Unless there is legal precedent somewhere that an entity who is not legally considered an ‘employer’ is still somehow culpable for a worker’s injury(ies) on the job I don’t understand the AG’s assertion. The personal assistant/service recipient relationship would be akin to a home owner entering into an agreement with someone to come in and clean once or twice a week. If the cleaner is hurt on the job the home owner isn’t subject to a WC claim.
Comment by Cubs in '16 Monday, Nov 16, 15 @ 11:57 am
@ Arizona Bob
That’s a huge assumption to make, you forget that the state is using federal Medicaid money to pay these employees which makes the state responsible since they are paying the employees on a waiver from the federal government. Also, you seem to freely give out advice but rarely seem follow it in your own matters. I can point to many lawsuits in your state where reform is needed, start with Sheriff Joe who cost the tax payers over 8 million dollars due to civil rights lawsuits.
http://www.azcentral.com/story/news/local/phoenix/2015/10/22/joe-arpaio-racial-profiling-lawsuit-costs-taxpayers/74407474/
http://www.azcentral.com/story/laurieroberts/2015/07/14/arpaio-snow-investigation-conspiracy/30131769/
I can give you more if you would like. You talk about reform from over 1000+ miles away, start with your own state already and come to terms with your views in support union busting before you launch criticisms here my friend.
Comment by Tate947 Monday, Nov 16, 15 @ 12:01 pm
If they are self employed, does the State not withhold income taxes, and social security taxes?
Comment by My button is broke... Monday, Nov 16, 15 @ 12:03 pm
This certainly doesn’t put AG Madigan in the best light. I would hope she has a cogent and legally defensible explanation for her about-face.
Comment by phocion Monday, Nov 16, 15 @ 12:03 pm
==This certainly doesn’t put AG Madigan in the best light. I would hope she has a cogent and legally defensible explanation for her about-face.==
I’m sure her distaste for the current Governor, along with what I imagine would be strong opposition by the SEIU towards her previous position have nothing to do with her about face.
Comment by So... Monday, Nov 16, 15 @ 12:09 pm
Ultimately, the Illinois Workers’ Compensation Commission will need to determine whether an employer and employee relationship exists in this matter. Then the Circuit Court and Appellate Courts can determine if those rulings are correct in accordance with the Illinois Workers’ Compensation Act. The Act gives the Commission such original jurisdiction in such matters.
There are other ways of proving an employer-employee relationship that CMS and the AG don’t seem to be talking about. Are these workers independent contractors? Are they part of a contractual loaning and borrowing situation? Does payment by the State of the wages/salary/invoiced work performed represent that the State is the insured contractor and the homeowner/patient the uninsured contractor, meaning the entity with the insurance (or in this case self-insurance) pays? And who has the ultimate control (i.e. the direction and control) over the worker in this case? The patient? The contract that the State made the worker sign? If they don’t sign the contract, no state funds apply.
That being said, the Arbitrator was correct in ruling that he or the Commission had no authority under the Act to appoint a Special AG. The filing in the Circuit Court may have some jurisdictional issues to deal with, as the Order of the Arbitrator appears more interlocutory than definitive of the entire case. I didn’t see an Order from a panel of Commissioners at the IWCC confirming the Arbitrator’s order. Procedurally, CMS may have jumped the gun by filing with the Circuit Court.
The contradictory positions taken by the AG are troublesome, but I would assume there are other cases filed that may have some fact finding that caused a flip in their position. Until the Illinois Appellate or Supreme Court hears a case, we won’t know for sure how the facts and law apply in these situations.
Interesting problem here.
Comment by Louis G. Atsaves Monday, Nov 16, 15 @ 12:12 pm
This has always been an issue for the OAG. One issue is State WC claims can only be appealed to the IWCC and cannot go to the courts. The IWCC has determined over and over again that b/c the State issues the paychecks, withholds taxes, and determines the number of hours in a pay period that these folks work, they are in fact employees for the purposes WC benefits. This is particularly a problem bc these folks earn such a small amount they make more money while on WC benefits than when they actually work. The medical expenses are usually for back injuries and never cheap. Furthermore, the disabled person selects who their personal assistant will be and that means they can be, and many times are,family members. I have seen several cases where the personal assistant had an unsavory criminal history. In my view the resolution to this problem is to file a declaritory judgement action in civil court to ask whether these folks are still considered State employees under WC law in light of more recent precedent. As IWCC precedent stands now they are employees. If CMS really wanted to make this argument stronger they would quit issuing they paychecks and they would quit witholding taxes from those checks.
Comment by Former WC A.A.G Monday, Nov 16, 15 @ 12:19 pm
@ So…
Like how Rauner’s office tells her to do her job and throws a fit when she deviates from his stance? Start making the agency heads already write their own responses and testify at legislative hearings like Rauner should. Tell the whole story also.
The state pays unemployment, social security, and withholds taxes out of their paychecks. The work comp is self funded through the Medicaid funds the state receives from the federal government. Many states already have this type of program
Comment by Tate947 Monday, Nov 16, 15 @ 12:21 pm
12:21, more like the way she states her job is to defend the constitution but then pursues prima facie unconstitutional pension reform to the IL Supreme Court before turning a blind eye to the blatantly unconstitutional salary adjustment by the gen assembly.
There are more examples if you care to google them.
Comment by Anonymous Monday, Nov 16, 15 @ 12:33 pm
Much like last week’s press releases giving Rauner cover for a private budget meeting, this frames his work comp argument and gives him a chance to attack a potential rival candidate for the Governor’s office. His political skills and strategies are formidable.
Comment by Earnest Monday, Nov 16, 15 @ 12:39 pm
@Former WC AAG has a point. If these folks are considered state employees, there is no appeal of any decision to a Circuit, Appellate or Supreme Court. That is a provision of the Act.
But if it is determined that they are not state employees, but uninsured type workers who were loaned or contracted, causing the state to ultimately be liable (for basically someone else’s employee), then an appeal may be possible.
Comment by Louis G. Atsaves Monday, Nov 16, 15 @ 12:56 pm
Gotta love the IPI. They’re really looking out for us.
Comment by Hedley Lamarr Monday, Nov 16, 15 @ 1:14 pm
Personal assistants are required to log hours daily via telephone, into a system set up and monitored by the state. They receive paychecks from the state, complete with Comptroller Munger’s name on them. The state issues yearly W-2 forms to personal assistants and withholds all state & federal taxes. The state negotiates salary rates and health insurance details with the assistants’ union (SEIU). If it walks like a duck and talks like a duck . . . folks, we have ourselves a duck!
Comment by Dome Gnome Monday, Nov 16, 15 @ 1:20 pm
If my memory serves me correctly, this was a problem when the employees, warden and some of the arbitrators were filing worker’s comp claims like crazy several years ago. I remember Ms. Madigan doing nothing about that, either, so perhaps we should not be surprised by this action. Governor Quinn attempted to rectify the situation at Menard and got nowhere until legislation was passed.
http://articles.chicagotribune.com/2011-01-17/opinion/ct-edit-menard-20110117_1_compensation-insurance-costs-compensation-claims-claims-for-on-the-job-injuries
https://www.prisonlegalnews.org/news/2012/mar/15/workers-comp-claims-by-illinois-prison-guards-under-investigation/
Comment by Team Sleep Monday, Nov 16, 15 @ 1:24 pm
@ Anonymous - Monday, Nov 16, 15 @ 12:33 pm:
If you read the last pension reform law that the legislature passed, it provided for a direct appeal to the state supreme court and in the law, it stated the Attorney General would represent the state in all matters concerning it. Also, the case was far from being prima face, it was state constitutional issue, not a federal one.
Comment by Tate947 Monday, Nov 16, 15 @ 1:36 pm
@Team Sleep
Those articles highlight the shortcomings of the law and not the attorneys. Try researching number of attorneys at the OAG assigned to downstate WC cases and their respective docket sizes- it’ll likely explain why you felt nothing was being done.
Comment by Anon Monday, Nov 16, 15 @ 1:45 pm
To the Update and the highlighted,
How shallow of a person do you have to be to try to believe your past thoughts and actions should be ignored, and the hypocrisy she now perpetrates is “A-Ok”
Nauseating.
Comment by Oswego Willy Monday, Nov 16, 15 @ 2:07 pm
Re: Update
What a piece of work.
– MrJM
Comment by @MisterJayEm Monday, Nov 16, 15 @ 3:21 pm
FYI: I just checked the Comptroller’s website and discovered these personal assistants (”DHS Household Employees”) number about 36 thousand and their annual payroll is in excess of 400 million dollars. These are not insignificant numbers.
Comment by Former WC A.A.G Monday, Nov 16, 15 @ 3:26 pm
Personal Assistants, a/k/a PAs, help people who are disabled and/or elderly to cope with activities of daily living. Some disabled people (i.e. quadriplegic, ALS, and other victims) could not cope without PAs. Some PAs get badly hurt lifting and moving disabled people and their equipment.
Many cases have been decided on this Workers’ Comp. issue and most have found PAs to be State employees because they get State W2s, the State approves their hiring, and the State pays them on an hourly basis, amongst other factors. Numerous cases also found that it was not the intent of the legislature that disabled people pay (nor could they pay) Workers’ Comp insurance.
It is illegal to have an employee without Workers’ Comp. insurance; it’s either a Class A misdemeanor or a Class 4 felony, depending on whether it’s intentional or not.
The governor’s suit seeks avoid the PAs being deemed to be employees, but then either (a) the disabled people are the employers or (b) the PAs are independent contractors. PAs don’t pay themselves, since they are hourly workers paid by the State, and they don’t direct their own work, since the disabled person generally tells them what to do; they aren’t independent and the aren’t contractors. So, the disabled person would be the employer, and quite possibly be a criminal with no WC insurance.
Ironically, it is the job of the Attorney General (who is being sued by the governor) to prosecute people who don’t have comp. insurance. Just as ironically, the State Injured Workers’ Benefit Fund has to pay if an employer has no Workers’ Comp. insurance- and it is the Attorney General’s office which must defend that Fund.
Comment by Bucklin Tuesday, Nov 17, 15 @ 4:39 pm