Move to the Center?
Wednesday, February 26, 2014 | 0
It is no secret to veteran readers of this KCB&A newsletter that we have been known to wield a sharp pen over the years when it comes to our critique of the hearing officers of our Illinois Workers’ Compensation Commission. While perhaps harsh at times, much of our criticism was meant to point out some of the more challenging or arguably absurd awards and rulings, which often appeared to overlook strong evidence for the defense. Ten years ago, during the Reign of Blago, we recall joking about how our defense lawyers were like sheep going to slaughter, with little chance for victory on the business side of this industry.
We have to say, in our recent audit of Illinois Workers' Compensation Commission decisions both internally and those reported over the past 18 months, we are noticing a distinct shift to the center by arbitrators and commissioners. For this, we have to applaud what we feel is a more recent “fair and balanced” approach to cases by our adjudicators. In fact, what compelled this article was receipt of four decisions in one day last week which were all denials or otherwise favorable for the defense. Upon review of our trial decisions over the past year or so, we noted a similar trend as well.
Sure, on those “close-call” issues over proper medical protocol or surgery, we still see administrative deference to treating doctors. And in other disputed matters, some arbitrators often have the difficult job of deciding who the heck is telling the truth and who is full of cow manure–those cases are always a bit of a coin flip. In our view, it is always challenging to try to act as a human “lie detector” and we can’t expect our sworn hearing officers to be any different. In our view, they are carefully listening to everyone and making their best call. We don’t think any workers compensation administrative system can ask for more than that.
However, where solid evidence is presented to rebut a claim, such as surveillance video, job videos, pre-existing medical conditions/treatment or eyewitnesses to rebut claims, the current Commission members are taking a hard look at the evidence and where appropriate, dispensing denials on claims that don’t pass the smell test. We also note the Commission is looking more closely at the “repetitive trauma” concept of injuries with a far more quizzical eye than ever before–something we also feel is appropriate, as we have never been convinced “repetitive working” is necessarily an injury worthy of compensation.
In our view, this trend promotes the validity and respectability of the Commission as a judicial ruling body. It is good for Illinois business and good for our industry in general when a sense of even-handedness is felt by both sides of the isle. Moreover, we are noticing the same arbitrators employing use of American Medical Association impairment ratings for the newer injuries and dispensing awards that are discounted off of traditional values, or what some prominent petitioner attorneys have described as a “haircut” on claim values. Again, this trend is good for Illinois business, particularly as we compete with our sister states for lower workers' compensation costs and job growth.
As an example, our firm alone has seen the following in the past month or so:
- Zero award for petitioner seeking temporary total disability and past and prospective medical treatment in the form of bilateral carpal tunnel surgeries. The arbitrator noted petitioner would have been exposed to the work for a limited period of time before the asserted symptoms, the variance in job tasks actually performed by petitioner during that time, and the treating doctor did not offer a causation opinion. He reviewed depositions of doctors involved and found our independent medical examiner's opinion more supported by the evidence than that of the initial treating doctor.
- Zero award for petitioner seeking TTD and past and prospective medical treatment in the form of knee surgery. The Arbitrator indicated Petitioner failed to prove he sustained an accident which arose out of his employment. There was an onset of pain as the day progressed, but no specific incident or trauma. The treating doctor’s opinion was speculation according to arbitrator.
- Zero award for petitioner who suffered an undisputed fall with immediate emergency treatment but did not seek follow-up care for five months, eventually requiring total knee replacement. Undisputed injury and full return to work resulted in award for cervical fusion at 17.5% MAW after AMA impairment rated case at 10% impairment.
- Zero award where job description demonstrated that field worker for pest control company did not perform “repetitive-enough” tasks to contribute to what became a personal condition causing carpal tunnel.
While we would love to portray this chain of defense victories as one experienced by our firm exclusively, our discussions with veteran attorneys on both sides of the bar have confirmed this as an industry-wide trend with a notable shift to the center by the Commission. We even had one veteran petitioner attorney in Central Illinois tell us that he is hesitant to try any carpal tunnel cases anymore, as he has a stack of recent denials to show for his efforts. In our view, this is a win for ergonomics, safety engineering and common sense.
It compels the question, with more denials being handed down, along with the cost savings from the 2011 statutory changes in the form of workers medical fee schedule reductions and AMA impairment ratings, do we have a Commission that is pro business? While we certainly can’t go that far, we do find the Illinois arbitrators and commissioners to be more objective and careful to weigh the evidence than ever before. Of course, as advocates in an adversarial system, we will always come across decisions that make us want to pull our hair out at the roots — we are sure the other side has similar problems which is the nature of litigation. However, all we can ask for is a fair system where our best arguments are heard and considered objectively. This appears more evident now than in the past decade and we felt it appropriate to tip our hat to the chairman, arbitrators and commissioners for their efforts in this regard.
We are not as confident that this trend of the Commission will carry over to the Circuit and Appellate Court. While the Commission may have grown more centrist, we continue to see an Appellate Court that remains more petitioner oriented with their interpretation of law and facts. We cannot forget it took an appeal to the Supreme Court to win reversal of the Venture-Newberg line of cases which had greatly expanded the “traveling employee” concept. Fortunately, the Supreme Court restored the more traditional interpretation of the law and limited what would have been an avalanche of new claims for virtually all workers driving to and from work each day. For reasons that are unclear, it also seems if the Appellate Court issues a denial, they don’t publish it but “non-publish” it under S.Ct. Rule 23.
This repeated use of Rule 23 orders keeps appellate decisions out of public scrutiny and academia but more importantly, this rule also renders the ruling non-precedential, other than in very limited circumstances. In the age of electronic data storage and on-line access to case reporters, we find Rule 23 to be an entirely antiquated concept that should go the way of the dodo bird. The idea of Rule 23 was to make routine and mundane rulings simple and summary. What could be less mundane and routine than an Illinois workers' compensation appellate denial? To the extent these “routine” decisions contain significant research, citations to numerous different prior cases and span 20 or more pages in length, it is only appropriate our industry can use them as a guide moving forward.
In our view, the last published defense ruling from that panel is Airborne Express v. Illinois Workers' Compensation Commission, where overtime was eliminated from the average weekly wage unless it was determined to be mandatory. It is hard to believe but that published pro-business ruling was way back in 2007. We have certainly experienced success before the Appellate Court since 2007 and we have written about it but are often disappointed the rulings are not published for our future reference.
As we outlined with our view of the Illinois Workers' Compensation Commission above, we are hopeful the Appellate Court, Workers' Compensation Division will also move to the middle, and perhaps as importantly, regularly publish their detailed and well-researched rulings and help all IL citizens improve the business climate in our state.
Eugene Keefe is a founding partner of the Keefe, Campbell, Biery & Associates workers' compensation defense law firm in Chicago. This column was reprinted with permission from the firm's weekly newsletter.
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