A Summary of Concerns about the Illinois Judiciary

Tuesday, April 6, 2010 | 0

By Eugene Keefe
Keefe, Campbell & Associates

We have been asked by a number of readers to summarize our thoughts on their concerns about where our judiciary is going in the workers’ comp sphere in this state. Well, here are some of our thoughts.
 
Please remember we are licensed by and officers of the courts of this state. Our goal is to provide an academic review of the more controversial decisions we have seen come from the current workers' comp reviewing court members. For representatives of Illinois business, please take a look and “draw your own contusions” from the actual rulings.
 
Our initial pick for judicial controversy is the ruling in Durand v. Workers’ Compensation Commission. In this decision, we feel our reviewing court stripped out the statute of limitations in Illinois workers' comp claims.

• Illinois law mandates an injured worker has to file an Application within three years of the accidental injury or onset of a work-related condition.
• In this case, claimant made four admissions she was aware of a repetitive trauma condition and its relationship to her employment.
• Claimant didn’t file the Application until four years later—the filing was clearly and unquestionably outside the rules under any reading of the Act.
• Benefits were awarded.
• The Court said: “[w]e decline to penalize an employee who diligently worked through progressive pain until it affected her ability to work and required medical treatment.”
• We ask our readers what “penalty” has to do with workers’ compensation rules—you either follow them or you don’t.
• When you follow the rules and enforce them, someone is always being arguably “penalized.”
• We ask our readers and the law students we teach and all of the administrators who handle workers’ comp claims in this state the rhetorical question—isn’t every injured worker who waits more than three years to file a claim going to say—“I have been working in progressive pain and now it affects my ability to work”?
• We ask anyone to tell us how the legislature’s determination to limit workers’ compensation claims to injured workers who file for benefits within three years can possibly survive and/or be enforced after this decision.

• In Sisbro, the Appellate Court ruled a guy with a deleterious and non-work-related bone condition who shattered his ankle simply stepping out of truck wasn’t entitled to benefits because an action of every day life wasn’t compensable under the WC Act.
• In Twice Over Clean, the Appellate Court ruled a guy whose heart was so degenerated his own doctor said he could have had a heart attack brushing his teeth was not entitled to benefits.
• The Supreme Court went back and forth on both cases and then ruled the decisions were based upon facts and the reviewing courts couldn’t deny benefits by reversing the Commission on the facts.
• Our highest court basically indicated if any ruling of the Commission is “within the manifest weight of the evidence” it can’t be reversed by a reviewing court.
• We just had a denial of benefits reversed by a reviewing court with a ruling the denial was not “within the manifest weight of the evidence.” That ruling was not certified by the lower court for further appeal so it is now final. As we have said in the past, the “manifest weight of the evidence” factual standard appears to be liberally focused to insure benefits are always awarded and never denied.
• From a purely academic standpoint and with respect to our highest court, we don’t agree at all with their rulings above which outline their position the lower court decided the cases on the facts—many academicians feel the lower court relied on longstanding Illinois legal principles.
  

• Two cosmetic salesladies got into a fight and struck each other at precisely the same time.
• Following longstanding Illinois law, the Commission ruled they were both denied benefits, as they were both aggressors.
• This silly and unusual case made it all the way to our Supreme Court.
• As we have pointed out many times, no one commented about the fact both ladies were breaking the law when injured.
• The Supreme Court found the Commission misconstrued the "aggressor defense" to find injuries sustained by an injured employee in an altercation over work-related issues was not compensable by finding both Petitioner and the person who may have injured her were "aggressors."
• In this supposedly "typical" fight, the Court found the Commission must determine someone has to get benefits and sent it back for such a ruling.
• Lots of our readers feel both combatants should have been “punched out” of any claim for benefits.
  

• This rule was designed to allow routine or mundane decisions to be “non-published.”
• Well, in one ruling during the last several years, all five members of the Appellate Court unanimously decided to simultaneously “non-publish” a decision as supposedly “routine” while certifying the same case as crucially important for review by the Supreme Court.
• For those of you unfamiliar with Illinois unusual WC Rule 23 decisions, they are almost all very detailed, well-researched by the members of the Court and carefully thought out. We have never seen one that is short and arguably “routine.”
• By issuing such rulings, an indefinable amount of the work of our WC Appellate Court is arguably secret.
• While it is impossible to tell because the decisions can’t be readily located or researched, we assert more workers’ comp appellate rulings are “non-published” than published, keeping them hidden from the public.
• When we hear about another Rule 23 decision in Illinois WC, we love to quote a guy you might remember named Barack Obama who, during his presidential campaign repeatedly quoted Justice Louis Brandeis by saying, “sunshine is the best disinfectant.”
• We hope some day; sunshine or publication of all relevant WC appellate rulings will be a routine disinfectant in our WC legal arena.
• We continue to laugh to see the Illinois State Bar Ass’n WC Section newsletter openly report the occasional Rule 23 decision thereby “publishing” rulings ordered “non-published” by the Illinois courts. This doesn’t mean the rulings are openly published—it means the members of the ISBA can be “in on” the secret rulings.
• We truly don’t care if the rulings are good or bad or pro-labor or pro-business; our reviewing courts should publish everything of the slightest substance or impact.