11-14-11; Appellate Court, Workers’ Compensation Division again flips the IWCC on “manifest weight.” Are they becoming a “Super-Commission” that will now second-guess every factual ruling below?

In Shafer v. Illinois Workers’ Compensation Commission, 2011 IL App (4th) 100505WC (October 28, 2011), the Appellate Court, Workers’ Compensation Division was confronted with a case where basically every factual ruling was challenged by the side of the claim that didn’t like it. The five-member panel went to great lengths to carefully analyze all of the facts and find most of them to be “within the manifest weight of the evidence.” As we have repeated advised our readers in the last statement of the Illinois Supreme Court on this issue in two exhaustive rulings in Sisbro and Twice Over Clean, our highest Court sternly advised this panel they weren’t supposed to reverse rulings of the Commission on the facts and should limit their focus to proper adherence to Illinois law. The rulings were so clear, it appeared one might get hit with sanctions for filing an appeal simply to seek reversal on the facts.

Now, in the last ninety days or so, we have seen the Appellate Court, Workers’ Compensation Division reverse all or parts of three claims on the facts. As we have advised our business readers, we don’t recall such an appellate reversal ever resulted in denial of benefits—they always seem to reverse to insure benefits are awarded.

In this claim, the Workers’ Compensation Commission found the Arbitrator's finding claimant was temporarily totally disabled for about one month "not supported by the record." The IWCC panel noted the treater released claimant to light duty work. Under oath, claimant candidly admitted she applied for unemployment benefits. To do would mean claimant averred to the Illinois Department of Employment Security she was “ready, willing and able to work.”

 In light of those facts, the Commission ruled claimant was "capable of working" for a time period of 23 days. The Commission majority did note she could only work at light duty. The Appellate Court’s ruling reversed that determination:

[T]he fact that the employee *** has the ability to do light work does not necessarily preclude a finding of temporary total disability. `Total disability,' as that term is used in the Act, does not mean total physical and mental incapacity. Rather, an employee is considered totally disabled when, because of a work-related injury, he or she is able only to perform services which are so limited in quality, dependability, or quantity that a reasonably stable labor market for them does not exist. Thus, the fact that an employee can do some light duty work or other useful tasks does not mean that she is ineligible to receive TTD benefits. Moreover, the fact that an employee applies for or receives unemployment compensation does not preclude or diminish her eligibility to receive TTD benefits. Thus, the Commission's reduction of TTD benefits was based on an erroneous legal premise.

There is no evidence in the record suggesting that the claimant was able to do more than light duty work. (TTD period omitted). In  fact, as noted above, the claimant's testimony and the medical records establish that the claimant was in a great deal of pain and severely limited in her physical activities during that time period. Accordingly, we find that the Commission's refusal to award the claimant TTD benefits for that time period was against the manifest weight of the evidence. We therefore reverse that aspect of the Commission's decision. (Citations omitted).

With respect to the members of this august and veteran appellate panel, we completely disagree. We are certain hundreds, if not thousands, of our readers on the business side of the IL WC matrix vehemently disagree with the premise of these rulings. A release to light work is a release to work. If such work is available, there is no conceivable basis to award TTD. In our view, U.S. law requires reasonable accommodation to allow such workers to return to work.

As to the claim for unemployment compensation, if claimant is “ready, willing and able to work” as she is required to assert, we feel it ludicrous to rule she is unable to perform any work and is therefore entitled to “temporary total disability.” In our view, the Appellate Court, Workers’ Compensation Division’s eminent members are again interposing “legal” meanings/interpretations that don’t match the “English language” version of the legislation. As we have advised our readers, they clearly have the power to do so and we have to respect their rulings. But we also feel they should be subject to a modicum of criticism when John Q. Public is challenged to understand how and why they divine these arcane legal concepts.

 In simplest terms, if a claimant is released to light work and the employer can demonstrate light work is available, TTD should not be due. Claimant is healthy enough. In our view, the Appellate majority simply replaced the factual findings of the Commission with their own.

Why is the Appellate Court, Workers’ Compensation becoming a “Super-Commission” a bad idea for the IL WC system? In our view, this is not a complex or intricate claim. It involves a pair of garden-variety soft-tissue strains. Despite its simplicity, please note:

v  These accidents occurred more than four years ago in 2007

v  This claim was heard by the Arbitrator and decided in 2008, more than three years ago.

v  The IWCC issued its ruling over a year ago.

v  The claim is now being remanded to the IWCC and their final ruling will probably be five years or more after the occurrence.

v  The only true change to the Commission’s ruling is a reversal on 23 days of TTD that our reviewing court reinstated.

v  After four years of litigation, the amount changed by this Court was about $750!

We don’t think it is a great idea for simple cases such as this drag out with legal fees and costs expended on both sides to have matters litigated at four levels. If you think that is a solid idea, please let us know your thoughts.

We also feel this is the sort of ruling that appears to be a “slam dunk” for claimant’s counsel. In making that statement, the cross-appeal resulted in reversal so as to award an additional $750 in TTD. We simply don’t feel the Appellate Court needs to be involved in matters that small. These sorts of decisions also don’t give one the impression things are “transparent, fair and impartial” when every part of the ruling appears to focus on giving claimants’ counsels whatever they seek.

On another odd issue, claimant and her counsel argued the Commission erred as a matter of law when it found it had jurisdiction to address the employer's Petition for Review. Claimant maintained because the employer did not include the correct case number on its Petition for Review, no timely appeal of the Arbitrator's decision was filed with the Commission, and the Commission therefore lacked jurisdiction to address the appeal.

The Appellate Court disagreed. The Court held

..from the time the petition was filed, both the parties and the Commission acted as if case number 07-WC-56127 was properly before the Commission for review. The claimant has cited no case (nor have we found any) suggesting that a clerical error in a timely and otherwise properly drafted petition for review strips the Commission of jurisdiction to hear the petition, particularly where, as here, the petition adequately notifies the opposing party and the Commission regarding which case is being appealed. Such a rule would improperly elevate form over substance. (Citations omitted).

Our view is at the end of the day, Respondent received a mulligan on this issue. We all make mistakes, but we firmly believe properly captioning and filing a Petition for Review is not a difficult endeavor. In a mildly rare turn of events, the Appellate Court, Workers’ Compensation Division, handed the employer a gift this time in not summarily dismissing the review. We urge practitioners on both sides, please pay attention to detail; we assure you Santa only comes down the chimney once a year.

This article was researched and written by Joseph F. D’Amato, J.D. Please feel free to forward thoughts and comments to Joe at jdamato@keefe-law.com or post them on our award-winning blog.