State: Ill.
2nd Most Controversial Appellate Decision in History of Illinois Comp: [2010-05-10]
Keefe, Campbell & Associates
Editor's comment: We will always remember Illinois State Chamber President Doug Whitley telling us he visited the Appellate Court, Workers' Comp Division. Doug was advised by the court's staff there was very little to worry about or controversial at the court. The staff advised that the appellate justices knew the rules and case law and quietly adhered to them. Well, we agree the justices unquestionably know the rules and case law; as citizens and academicians we have to ascertain and reach our own conclusions as to whether they closely adhere to them.
Some court observers feel the workers' comp appellate rulings of the last decade have been decidedly claimant-friendly. As we have advised our readers over and over, in the last decade, there has been a single appellate ruling favorable to Illinois businessAirborne Express v. IWCC.
Please note the reviewing courts at the Circuit, Appellate and Supreme Court levels issue 20-50 rulings a year—if you do the math, one pro-business ruling in a decade against 200-500 for labor is way less than one per cent. And when you consider the view of some court observers, the reviewing courts appear to be wildly expanding coverage and stripping away even the most traditional and logical defenses.
Illinois WC costs are going up and jobs are leaving or not coming back. With respect to the august members of our reviewing courts, it is our reasoned academic view just about every other ruling "limbos" over, under and around the English language, the statute and the rules to mold the law in the image and likeness of what the petitioner’s/plaintiff's bar wantscompensability of any and every claim. We point out to everyone, the legislation hasn’t truly changed—the change in workers’ comp law or rules comes from the reviewing courts at every level.
<b>Sisbroa simple legal rule or is it?</b>
By way of background, earlier in this decade our current Illinois Supreme Court issued two workers' compensation rulings that very clearly and cogently outlined a single principle of law and appellate procedure in the workers' compensation arena. In landmark cases named Sisbro and Twice Over Clean, our highest court reversed the lower Appellate Court, Workers' Compensation Division not once but twice. Please note both rulings resulted in very detailed appellate rulings resulting in denial of work comp benefits being summarily reversed. When benefits were provided due to reversal, substantial monies were awarded to claimants.
At the time, the workers' comp community felt the members of the Workers' Compensation Commission were very liberal. Most folks on both sides felt this new Supreme Court rule that you "can't change the IWCC ruling on the facts" would preserve expected liberal rulings at every level of appeal. To implement this patent and simple legal position, the Supreme Court clearly stated in the rulings mentioned above the Appellate Court and all lower circuit courts were not to overrule the Workers' Compensation Commission's determination on the facts of the case. They demanded strict adherence to the concept the Commission's factual determinations could not be overruled as being "against the manifest weight of the evidence." Basically, if there was even minimal support in the record for the Commission's factual determination in a decision, the reviewing courts had to affirm.
So, everyone in our industry felt a factual determination by the Commission was effectively final. We have seen numerous petitions for sanctions for frivolous appeals from members of the claimant bar, if a claim was being appealed by an employer solely on the facts. Case after case followed with the Appellate and Circuit Courts routinely affirming Commission decisions if the only issues were factual in nature.
<b>Sounds pretty simple; so what happened?</b>
Let's look at this new controversial ruling that you can't find on the web and/or read unless you ask us for a copy. In ABF Freight Systems v. The Workers' Compensation Commission, 01-08-3074WC, the claimant was a truck driver with a relatively routine back strain. He underwent appropriate medical care. He actually was very close to being completely done and was to be at maximum medical improvement and returned to work very shortly.
Then while riding his motorcycle, claimant was in a traffic accident and thrown from his bike to the pavement at speeds he admitted were about 50 mph. He went from having an almost healed back strain to needing six days in the hospital and an implanted pain pump. Medical bills from the motorcycle crash are well into six figures and continue today, years after the event. Following the non-work-related accident, claimant will have severe and lasting disability and medical attention for the rest of his life, not due to anything that happened at work.
An intervening cause is an event which occurs between the original work-related injury and the final or permanent result. Thus, from an academic and legal perspective, the "causal connection" between the original work injury and new medical care, lost time and permanent disability is broken by the intervening and superseding cause. An intervening cause represents a separate act or omission that breaks the direct connection between the injured worker’s initial injury and a second injury or loss and relieves the employer of liability for the sequalae of the second injury or loss. If you research it, the most common intervening and superseding causes are uncontrollable natural forces and negligent human conduct. In this set of facts, the intervening cause(s) was claimant’s decision to ride a motorcycle and the person who caused this second severe accident away from work.
So, what happened with the litigation? Well, claimant's counsel made the claim petitioner's post-motorcycle accident condition of ill-being and all medical care and disability was related to work. Their theory was claiment hadn't “completely recovered” from the earlier back strain so everything that happened in the obviously and patently non-work-related motorcycle crash was the responsibility of the employer. In defending the claim, the obvious defense was the long-time and well-settled concept of the motorcycle accident being an "intervening and superseding" event that cut off all liability for the employer.
Intervening and superseding event—sounds complex but actually a simple common sense approach.
When one teaches workers' compensation law and practice, as we do, law students are taught if a claimant has a bruise on the arm due to a work-related injury and then breaks the arm in twenty places in a non-work-related event, it is impossible for a hearing officer to peer into a crystal ball to provide any benefits for the prior work-related contusion. We feel that is simple common sense. In such a situation, the hearing officers outline claimant has to take care of his or herself for the sweeping non-work-related occurrence. We feel this concept summarizes a very basic and straightforward workers' compensation legal principle in what used to be all 50 of the United States and the four federal workers' compensation statutes and rules. We hate to report Illinois has quietly dropped this defense in this unprecedented ruling in ABF Freight Systems.
What happened at the Commission level in ABF Freight Systems? Well, it is our opinion as Commission observers they did their job and followed existing law. The Commission carefully considered all the facts and applied the law and denied benefits. It ruled the claimant's current condition of ill-being following the motorcycle crash was due solely to that accident. The Commission was not inclined to look into a crystal ball to try to cipher out any remaining effect of the work-related strain; claimant's condition had changed so dramatically due to being thrown to the pavement at high speed, medical care and lost time was now ruled to be solely due to that occurrence, since claimant’s condition was measurably worse after the motorcycle crash. Please note the ruling followed the law and Commission made clear and concise factual rulings that any veteran legal observer might feel would be locked in on appeal.
So, as the guard at the door to the Wizard of Oz told young DorothyNot so fast! Not so fast!
Please remember we are in Illinois when we write this. On appeal, it is our opinion the reviewing courts ended, eradicated and stripped away the defense of "intervening and superseding" occurrence. They ruled that since there were still some sequalae, no matter how minimal, of the work-related back strain present, anything that happened to claimant thereafter was now the employer's responsibility. Therefore the employer was on the hook for six-figure medical bills, lost time and maybe seven-figure permanency; all due to a patently and unquestionably non-work-related event. If claimant is off work and treats for ten years and then dies from the effects of this motorcycle accident, several million in benefits will be owed in a fashion no other workers’ compensation system on this planet would award benefits.
So you may ask this rhetorical questiondo you mean to tell us if a claimant has a sore toe and hasn't completed medical care and while off work is hit by a semi-tractor-trailer at high speed, the employer is responsible for the death?
The answer, if you follow this new and unprecedented rule is now yes! If claimant has a work-related sunburn and gets killed by an alien death ray, if you follow this ruling, it is all compensable. We assure you we are not trying to be sillyin real life, this claimant had a minor strain and was already released to light duty; he was very soon to be released to return to work. He obviously felt well enough to ride a motorcycle. He fell off it at high speed and was taken by ambulance to an emergency room and then hospitalized for six days! How can anyone find the sequalae of that accident related to work? We remain adamant that it is inconceivable an Illinois employer should have to pay a dime for what happened to this unfortunate individual as a result of the motorcycle crash—it had nothing to do with his work.
Ignoring Sisbro and more Appellate Secrecy
What we feel is even more galling to the hearts and minds of Illinois business are two things. One, the Commission made a ruling on the facts. Not more than a couple years ago and as more fully outlined above, our Supreme Court promulgated the Sisbro concept to everyone in the Illinois workers' compensation community confirming factual rulings are locked in and can't be changed by the reviewing courts. Oops, that appears it may only apply when it means benefits are awarded. If benefits are denied, it may now appear there may be a super rule that trumps other rulesit may be okay to reverse on the facts if it means claimants get money. We cannot divine any other reason this Commission ruling could have been reversed.
Second, the Appellate Court did two things in handling this matter that frustrates and sometimes infuriates many workers’ compensation practitioners. First, its "non-published" its very detailed, thoroughly researched and critically important ruling, effectively limiting the pool of readers to the parties and a few Commission insiders. We point out their decision to “non-publish” the ruling hides their reasoning from the public and more important, does not allow anyone to be guided by their mind-set on critically important issues.
We always point out such secret rulings could result in a claimant not knowing the law and dropping an appeal they might otherwise win. Conversely, it may also have the impact of an employer fighting an appeal to then find out about the clandestine determination of the court and have to tell their clients the cost of getting an appeal bond along with the legal fees and time incurred in the appeal may have been wasted. We also are unaware of any other Appellate Court in the country that keeps so many rulings secret.
You may ask us how we can apparently violate the court's ruling by writing this article when their decision is “non-published”well, they have advised the State Bar Association they don't mind anyone publishing non-published rulings so until they change that paradoxical position, we will publish. We also hope to see the day that any and every decision by the Appellate Courts reach the new technology that allows their rulings to rapidly hit the web. If you know how to do it, you can go to the Illinois Courts website and listen to the audio recordings of oral arguments in this case before the Court. But you can’t read their ruling! There is no conceivable reason to hide their decision-making processes from the taxpayers and citizens who pay for and need their guidance in litigation.
As President Obama has said on many occasions, “Sunlight is a great disinfectant.” We point out Illinois is the home state for our commander-in-chief and wonder how he would feel to learn so many major workers’ compensation appellate rulings are kept out of the sunlight and under a proverbial basket.
Second, they refused to certify the ruling for consideration by the very court that imposed the "manifest weight of the evidence" rulethe Appellate Court members were asked to certify the claim for review by our highest court and would not do so. Please note they don't have to tell any of us what their thinking is on non-publishing or not certifying decisions—we point out in Sisbro and Twice Over Clean, the members of the Court published and certified two rulings where benefits were denied by their members and the fact of certification allowed the Supreme Court to then reverse and award benefits. In this case, where they reversed a denial and awarded benefits, however, they wouldn’t allow the Supreme Court to even consider their award.
So what do we do about this? Does anyone in our reviewing courts care about their effect on jobs in this economy?
We don’t feel this ruling is going to have a massive impact on Illinois business. It only applies to someone who has two or more accidents which you have to hope doesn’t happen too often. The ruling is more irritating than monstrous in its implications. But we have watched the courts expand the coverage of the Act and strip away defense after defense and at some point, a thousand little cuts to Illinois business will certainly kill jobs and any hope of economic recovery in this horribly run state. We also point out the job of underwriting many Illinois WC claims is comical to consider—you can’t tell if they will actually follow a law or rule that has been in place for a century! The impact of pro-Plaintiff rulings combines to have a deleterious effect on jobs in this state. Here are a few:
- Beelman Trucking, where double weekly PPD benefits were awarded to someone already being paid lifetime total and permanent disability benefits.
- Cassens Transportation, where someone receiving wage-loss differential benefits from their employer can only have them lowered if permanent restrictions magically change, even if they later earn millions.
- Interstate Scaffolding where the Supreme Court ruled you have to pay TTD to an employee who commits a crime and gets fired on light duty.
- Leung, where a flight attendant who hurt herself putting on her coat was provided benefits as a “traveling employee."
- Potenzo, where a truck driver was attacked by an unknown assailant for reasons completely unrelated to his work and provided benefits as a "traveling employee."
- ABF Freight Systems, where the defense of intervening and superseding event may have ended.
Well, forewarned is forearmed. We urge you to push return to work and maximum medical improvement in all claims—the faster they are back, the better your chances of denying non-work-related injuries. Note the concept of "intervening and superseding event" is going to be a quizzical defense and you shouldn't closely rely on it. If someone being treated for and off work for a work-related event has a non-work-related setback, keep managing the claim because they may hold you liable for it later. Consider litigation avoidance techniques—send a reply if you want our protocols.
And remember folks, it is now May 2010the next statewide elections are looming in the first week of November. At present, Republican Bill Brady holds a decided lead in the polls over current Governor Pat Quinn. We are very confident support for Bill Brady is support for workers’ comp reform. Consider joining the Illinois State Chamber and follow the lead of its solid president Doug Whitley in seeking reform of this system and our courts. Consider joining Doug’s Employment Law Council and think-tank. Consider donating money to support the cause of reasonable workers' comp reform that reasonably and fairly takes care of injured workers in Illinois but doesn't reward them with millions of dollars for falling off motorcycles.
If you want a copy of the ABF Freight Systems decision, send a reply. We appreciate your thoughts and comments.
<i>Eugene Keefe is a partner with Keefe, Campbell and Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.</i>