The Illinois Workers’ Compensation Commission has historically rejected the argument that “personal assistants” are not State employees. This was re-emphasized in Hoffman v. Madigan, 2017 IL App (4th) 160392. In Hoffman, a State agency, the Department of Central Management Services (“CMS”) brought a complaint against the Attorney General seeking injunctive and declaratory relief. Specifically, CMC argued that “(1) defendant, Lisa Madigan, in her official capacity as Attorney General of the State of Illinois, be enjoined from representing CMS before the Workers’ Compensation Commission (Commission) on cases involving “personal assistants,” based on her refusal to defend CMS’s determination that a personal assistant was not a State employee for purposes of the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2014)), and (2) a special assistant Attorney General be appointed to represent CMS.” Id. at ¶1.
In support thereof, CMS argued that compensation can be denied based on the regulations of the Department of Human Services, which designate a disabled person receiving care as (1) the “customer” and (2) the “employer” of the personal assistant. Thus, CMS argued, a viable defense existed that CMS did not employ the “personal assistant” who was injured while caring for the “customer,” and therefore CMS was not obligated to compensate the “personal assistant” pursuant to the Workers’ Compensation Act. CMS concluded that the Defendant’s failure to so argue creates a legally cognizable cause of action against the Defendant.
However, the Defendant argued that it retains the authority to decide what arguments and strategies to employ in representing the State in litigation. And the Appellate Court agreed. The Appellate Court noted that raising the employer-employee argument is historically a losing argument that places CMS at risk of penalties and fees for denying that an injured person’s claim is compensable. Accordingly, the Defendant can be seen as vigorously defending the workers’ compensation cases at issue, precisely by not raising an argument that has repeatedly failed before the Commission. Thus, the Appellate Court found that CMS failed to plead a cause of action under Illinois law and affirmed the trial court’s judgment.
The entire opinion can be found at:
https://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/4thDistrict/4160392.pdf
— Junira A. Castillo
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