4-2-12; Academic Problems and Our thoughts on Using/Abusing a Dictionary to Analyze the IL WC Act and Rules

We advised lots of industry observers of what may be a new trend in IL workers’ comp in reviewing our Act and Rules in light of the actual “English language” version found in your nearest dictionary. In at least two recent decisions, this became a favored method to parse our IL WC Act and Rules. With respect to our reviewing courts, we feel when you start to refer to a dictionary, you have to note this state has “made up” lots of WC legal concepts because you can’t find them or seek a definition in a dictionary. The problem we feels that causes is a concern about the constitutionality of such “made up” legal concepts when employers and insurance carriers/TPAs have to make quick and accurate decisions on accepting, reserving and paying work injury claims.

Our problem is the IL WC Act and Rules Governing Practice are the only source of law from which to ascertain the rights of injured workers and the responsibilities of their employers. The Workers’ Compensation Commission in this state is supposedly to closely adhere to the letter of the law—by that we mean the Commission and reviewing courts are supposed to precisely and fairly implement benefits consistent with the legislation and rules. We don’t think you can precisely and fairly provide benefits when administrators and reviewing courts are allowed to randomly pick the version of our language which suits the moment or the political party in power.

What’s Overtime?

So, let’s take a few teasers. If the legislature says “overtime” isn’t to be included in the calculation of the average weekly wage, what does and should that mean? Well for about eighty years, it meant straight time hours/wages were completely excluded from the calculation, usually resulting in lower benefits considered beneficial for Illinois employers. The dictionary defines “overtime” as “working time  before or after one's regularly scheduled working hours; extra working time.” In the dictionary version of our IL WC Act, all pay for working time before or after scheduled working hours would be excluded, right?

Not so fast, not so fast. Put that dictionary down, Arbitrator!! In 1990, the ruling in Edward Hines Lumber came down and the Appellate Court, WC division began to include “overtime” pay for the overtime hours worked but at the straight time rate, if they felt “overtime” was worked on a “regular and consistent” basis. No one had any idea what “regular and consistent” basis might mean—neither “overtime at the straight time rate” or “regular and consistent” are mentioned in the IL WC Act or Rules. Despite the idea the statute is supposed to be easy to understand and implement, you are left to make that up as randomly as you would like.

Just a couple of years ago, a surprising ruling in Airborne Express was issued and this ruling changed the focus on the inclusion of “overtime” to now only be awarded when it was “mandatory.” The Airborne Express ruling was written to almost have a “didn’t-you-know-dumbbells” tone, as if hearing officers and lawyers on both sides were supposed to read all this complex legalese into the single word “overtime” that we and your nearest dictionary should denote isn’t supposed to be included whether it is “regular and consistent” or “mandatory.”

Define “Odd Lot” in IL WC but Skip the Dictionary for Guidance

Let’s review another one—“odd lot” total and permanent disability. This idea started with a ruling named E.R. Moore v. Commission about thirty years back. Odd lot T&P disability is basically an injured worker who can’t find a job and is therefore entitled to be paid a very high minimum or maximum weekly T&P benefit for the rest of their life. Such an award could require the IL employer to pay $67,025.92 per year on a tax-free basis for life. For a thirty-year-old with a fifty-year life expectancy, the “odd lot” T&P award could provide about $3.3 million in tax-free benefits with cost of living increases!

One would think such a gigantic benefit would be carefully defined by our legislature. In fact, there is no definition of “odd lot” provided in our IL WC Act or Rules—in fact, the two words don’t appear in our IL WC Act or Rules at all!!! We assure our readers this legal concept is known only to the IL WC system so you can’t look to other states or countries WC programs for guidance.

The main problem with comparing this multi-million dollar workers’ compensation benefit with the dictionary is an “odd lot” is defined as “a quantity or amount less than the conventional unit of trading.” That definition has literally nothing to do with what an “odd lot” total and permanent disability award means to the injured worker and employer or their insurance carrier/TPA. You cannot look to the WC Act, Rules or dictionary to understand what this benefit might be or when it might be awarded. We consider it a constitutional problem when the courts make up and enforce new and unprecedented definitions that can’t be found or defined in legislation, rules or anywhere else.

Hundreds of State of Illinois workers are getting this “odd” benefit right now

Please note if you are an IL taxpayer, you have a major stake in what an “odd lot” total and permanent disability might be—you are paying millions and millions of dollars in taxes because there are hundreds of Illinois state employees who are receiving such benefits as you read this. Actually, many of them get the pricey workers’ comp benefits on top of their taxpayer-supported state pensions.

How/why does that happen? Well, Attorney General Lisa Madigan and Central Management Services don’t dispute them at all—they do not and cannot defend the taxpayers from such claims and present almost no defense evidence of any kind during such hearings. We consider it a scandal of major proportions that hasn’t hit the media spotlight because it isn’t racy enough and it is also hard for John Q. Public to comprehend.

The State of Illinois also does literally no “in-placement” of injured workers to bring them back to alternate positions outside their departments, lamely asserting labor agreements and work rules mandate “odd lot” T&P status and multi-million dollar benefits. We hope someone as sharp as Illinois State Chamber President Doug Whitley or State Rep. Dwight Kay start to investigate and attack this travesty that is costing us millions and going up every day at your expense.

What’s a “Traveling Employee?”

In the Illinois WC system, our hearing officers and reviewing courts are really struggling with this one. The concept was supposed to be “traveling-out-of-your-area-of-familiarity-employee.” Please note “traveling employees” are supposed to be globally covered for all risks from the minute they leave their doors until they return and close the door of their home! That is a pretty broad aura for employers to protect and should typically apply to workers who are totally out of their element in a foreign place with foreign risk and dangers.

If you look at the dictionary, there is no definition of the two words “traveling employee” together. Please also note they don’t appear in the Illinois WC Act or rules in combination. We feel it is literally impossible for this legal concept to be defined and should not be part of any workers’ compensation claim because it is not contained in our legislation. At present, the legal concept is blurring and impossible to define—the Commission and reviewing courts have extended “traveling employee” status to a police officer turning to give directions on a street in the town in which he works and firefighters wrestling like school boys in a hotel room at Disney World. Please note almost every job of every kind has a level of “traveling” to the extent “traveling” is defined as “to go from one place to another.” Doesn’t every worker across the globe eventually “go from one place to another?” Again, we feel they are trodding all over the Illinois Constitution to provide benefits in a fashion wholly undefined in our law. It is our strong hope the Illinois legislature’s efforts to restate the requirement that accidental injuries have “arise out of” and occur “in the course of” employment will reign the “traveling employee” concept back to some level of sanity.