10-18-11; Oh, That’s Gross!! The Appellate Court, Workers’ Compensation Division flips another case on “manifest weight.”

As we reported way back on August 29, 2011, we are mildly surprised to see the ruling in Johnson v. IWCC, (No. 2-10-0418, issued August 15, 2011). In that ruling, the Illinois Appellate Court, Workers’ Compensation provided a split decision that overruled the IWCC and, in our opinion, replaced their fact-finding with the court majority’s view of the facts. In so doing, they found the Commission’s decision was clearly erroneous and “against the manifest weight of the evidence.”

Most academic observers note the last statement on this legal concept came from the Illinois Supreme Court who outlined the Appellate Court justices were to adhere strongly to the manifest weight of the evidence rule—this came from not one but two decisions from our highest court in Sisbro and Twice Over Clean. In both rulings, denials of benefits came from the Appellate Court’s well-reasoned decisions and the Supreme Court acted to reinstate benefits.

As we indicate above, in Johnson, it is our view the Appellate Court may have ignored what was arguably dereliction of duty by a Will County Sheriff who inexplicably left his post to the detriment of fellow officers and the public. He was injured returning to duty. The Appellate Court found the Commission’s decision to deny benefits on the facts was patently erroneous and awarded benefits.

Now, less than sixty days later, we read a new controversial ruling from the same panel. In Gross v. Illinois Workers' Compensation Commission, (100615WC, opinion issued October 6, 2011), the Court considered a claim from a retired coal miner who filed a claim for benefits under the Workers' Occupational Diseases Act, alleging his lungs and/or heart were affected by inhalation of coal dust for more than 39 years.

One physician assessed claimant with mild chronic obstructive pulmonary disorder or COPD, caused by a combination of his former cigarette smoking and his exposure to coal and rock dust. From our view, the IL WC Commission carefully considered the facts, medical evidence and law and denied the claim.

In its analysis, a 4-1 split in the Appellate Court found the IL WC Commission patently erred in accepting the expert opinion of another specialist, who opined COPD was caused solely by claimant's cigarette smoking. The reviewing court asserted this expert failed to give an adequate and detailed explanation of the basis of his professional opinion. In our opinion, “adequate and detailed” are comparative terms used to analyze an expert opinion that are clearly in the eye of the beholder. Obviously, the IL WC Commission felt the expert opinion was sufficient to justify denial.

Justice McCullough dissented in Johnson v. IWCC above and in this new Gross opinion. In our view, kudos to him for doing so. As business observers of this system, we remain amazed to see this appellate majority do what we feel is the opposite of the Supreme Court’s last statement on this simple legal concept. As we have been told by many observers, decisions such as this give onlookers the sense there is one abiding rule in this state—assume either the Commission in the first instance or reviewing courts as the “final resort” will do whatever it takes to give out benefits. We aren’t sure how this may measure up to the Governor’s new WC standard on “professional, transparent and fair” but we are all going to have to take a wait-and-see approach.