With respect to the five members of the Illinois Appellate Court, Workers' Compensation Division and the Circuit Court judges who hear workers' comp appeals, I want to confirm my new position that our state would be better served to have our work comp claims adjudicated only by the Workers' Compensation Commission. Arbitrators at the first hearing level, and one of the three commission panels thereafter. When that is done, game over.
If you or the lawyers who read this KCB&A Update consider this an unusual stance, please note the two levels of hearing is precisely what is accorded to state workers. Right now, they are not allowed to appeal to the courts. Somehow they deal with what they get from just two levels of hearing. I vote we expand that streamlined model to all WC claims in this nutty state.
I am confident our state might save literally millions to do so. I am also sure the arbitrators and commissioners could do a solid job of making reasonable work comp decisions, and we wouldn’t have to concern ourselves with the almost endless time it takes to get a final decision in a jurisprudence system that allows five — count 'em, five — different WC hearing levels.
As an example, in a recent ruling in Crittenden v. Illinois Workers' Compensation Commission 2017 IL App (1st) 160002WC (issued Feb. 24, 2017), our Appellate Court, WC Division ruled on a claim arising in 2008, nine years ago. The outcome of the unanimous decision was to send the whole thing back all the way to the commission with instructions to restart everything, consider new evidence and create a whole new ruling.
What? Why? Will this claim end by 2028?
The Appellate Court ruled that our Workers' Compensation Commission erred in its method of determining the average amount which claimant Crittenden is able to earn in some suitable employment or business after work-related accident. The court decision may indicate to me that the City of Chicago didn’t truly defend itself in citing jobs this worker could perform and wages he would be earning if he were working.
The other side called an expert, whose report was offered into evidence without objection from the city’s Corporate Counsel. As I have advised my readers for years, under the auspices of the politically powerful alderman who runs Chicago’s workers’ comp program, the city does a miserable job of "defending” itself from such claims. I feel his goal is to ensure all city workers get amazing and unfundable pensions or other post-employment benefits, like police/fire disability and workers’ comp benefits.
In this situation, claimant would be entitled to about $250,000 for “wage loss differential” benefits even though the record doesn’t indicate he has an actual job from which to evaluate wage loss. We always ask our students how one can measure wage loss benefits for someone who doesn’t have a wage.
The court ruling confusingly indicates that if claimant is not working at the time of wage loss calculation, our WC Commission must identify, based on evidence in the record, an occupation that the claimant is able and qualified to perform, and apply an average wage for that occupation to wage differential calculation. The claimant is now required to introduce evidence sufficient for commission to identify a specific occupation that the claimant is able and qualified to perform, and the average wage for that occupation.
What is unusual about the paragraph above is that the claimant presented the evidence “required.” The arbitrator found that the vocational experts agreed that cashier and customer service jobs should be targeted for the claimant, who earned $11 per hour when he left his part-time job at Target.
Additionally, the arbitrator noted that the claimant’s expert gave a range of projected earnings of $8.25 to $13.78 per hour. The arbitrator then stated, "[t]he arbitrator selects $11 per hour as a reasonable wage." On appeal, the IWCC looked at the same evidence and ruled that $13.78 per hour was a reasonable wage.
So case closed, right? Not so fast.
The Appellate Court reversed and remanded for an all new hearing. By now, the prior job at the city for the claimant has gone up in pay, and any cashier and customer service jobs also have increased in pay. In short, I have no idea what the Appellate Court means in the paragraph above or why it is again seeking new facts and evidence. It would appear to me the goal is to stick the city with an even higher wage loss differential award than about $30,000 a year for life.
If you understand this decision, please send me your explanation. I have been reading, writing and teaching workers’ comp in this state for almost four decades and I truly don’t understand the intent, meaning and purpose of this baffling appellate ruling.
Only in Chicago and the State of Illinois does it appear that our courts want to stick it to taxpayers as hard as we do in this state. If you aren’t sure, the city is bordering on actual bankruptcy while the State of Illinois is, for the lack of another term, already "bankrupt" to the extent it isn't paying its bills, to the tune of more than $12 billion. Yes, billion. The credit rating for both governments is about a scintilla above a smoldering junk heap.
In short, I vote we stop clowning around with years of uncertainty in Illinois WC claims. Cut out the reviewing courts for all claims and let the IWCC come to the point much more quickly.
Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.
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