What Does a Legal Observer Do When He Disagrees with the Courts?

Tuesday, January 12, 2010 | 0

By Eugene Keefe

One great thing about American jurisprudence, like the football playoffs or most anything that appears in the public eye; you get to disagree. If you think a wide receiver in a football playoff game caught the ball but landed out of bounds and the referee calls it a touchdown, you get to disagree. The ref’s call may stand and the game may still end as a loss for your team but this is a country where we get to disagree and the referee is supposed to be willing to take reasonable and respectful criticism—it is part of the game. Our goal is to be sure all fans understand someone has to call the game and we have to accord respect to the folks who take on that mantle.

Well, in the legal sphere, we feel the same concepts should apply. We sometimes respectfully disagree with what is usually our highest reviewing court for workers’ comp purposes, the five-member Appellate Court, Workers’ Compensation Division. We want all our readers to understand they make and are charged with managing the law as given them by the legislature. What we say below is our view of two recent developments which is intended to be properly respectful of the august and learned members of the Court.

Is there any way to expedite dismissal of an appeal where the appellate bond was defective?

We recently read about a major defense firm that got whacked by the Court when they misfiled an appeal from the Commission to the Circuit Court. In Securitas, Inc. v. Illinois Workers’ Compensation Commission, et. als. (05-09-0184WC, issued Nov. 23, 2009), it appears counsel for the employer didn’t follow Illinois’ demanding appellate rules for workers’ comp appeals. If you don’t know them, once the Commission issues an award, an employer that is a corporation (and almost all Illinois employers are corporations) has to obtain and file an appeal bond in an amount set by the Commission in its award. Counsel for the employer has to prepare a number of court forms, one of which is evidence of that appeal bond. That appeal form also has to be signed by a party who has the power to bind the corporation to the debt contemplated by the bond; their title has to be on the form. All of it has to take place in twenty days without any possible extensions—a period that we consider to be the shortest of any appeal in this state.

In the case we reviewed, it appears the defense firm messed up not one but two appellate rules:

They filed an appeal bond for $10,000 when the Commission set the bond amount at $10,100. They didn’t indicate the person signing the bond form was an officer of respondent.
 
These two things combined to lead the Court to dismiss the appeal for lack of subject matter jurisdiction. We agree with that outcome because they strictly followed the “plain English” language of the Act.

Our problem is the fact the case went to the Circuit and Appellate Court and sat for something like two years. The date of initial loss was Nov. 13, 2006 and it was filed as an emergency petition; the arbitrator’s ruling was in an emergency fashion for temporary total disability and medical expenses only. The arbitrator’s ruling clearly did not dispose of the entire claim which remained pending all that time. This Court’s simple and straightforward two-page ruling on that “emergency petition” was issued Nov. 23, 2009.
 
It remains our position the Circuit and Appellate Courts should allow for expedited summary dismissal of such claims upon motion from the opposing party. It is our impression delays associated with the briefing of all underlying issues and lengthy wait for an oral argument date is unnecessary in such circumstances.

For all of you who may want to know the name of the defense firm that had the problem, go to the web at: http://state.il.us/court/Opinions/WorkersComp/2009/November/5090184WC.pdf
 
You will find the Court published their name on the last page. We don’t know why the Court wouldn’t “non-publish” such a simple and routine ruling under Rule 23—we don’t get to ask them such questions.

B. New rule following recent judicial discovery of a “bright line” for paying amputation losses in Illinois in our legislation that is 100 years old.
 
On the other side of the same coin is a ruling we just saw reported about amputation claims. This is now the third ruling, following Beelman Trucking and the most recent Freeman United Coal decision, where the Appellate Court, Workers’ Compensation Division is now demanding double weekly benefits be paid. We completely disagree with that view of the “plain English” of our Illinois Act.

In Greene Welding and Hardware v. Illinois Workers’ Compensation Commission, et al. (04-09-0144WC, issued Dec. 23, 2009), the Court reviewed an amputation case. There is no dispute claimant lost 100% of the ring and 50% of the middle finger as the result of a work-related event. He was paid TTD in a timely fashion. There was about a six-week delay in starting statutory PPD benefits but prior benefits were paid when the first payment was made. The ruling indicates the employer’s defense counsel basically claimed at all levels of hearing and appeal that they didn’t know when to pay permanent partial disability in amputation claims—we vote you fire and replace defense counsel who demonstrates that level of confusion and uncertainty before the Commission and reviewing courts.

The arbitrator provided an award for the amputation loss and denied penalties and fees. The Commission affirmed and awarded penalties and fees. The Circuit Court confirmed the Commission’s award.

Thereafter the Appellate Court, Workers’ Compensation Division affirmed the award including penalties and fees. The language we cringe to read is:

"Rather, we hold that the Act established a bright-line test for payment of such benefits. Where there is no dispute regarding whether a claimant’s amputation injuries arose out of and in the course of his or her employment, statutory benefits for amputation are to be paid no later than the time at which the employer reasonably knows the extent of the amputation and is capable of calculating the appropriate average weekly wage."

Please understand that is now the law in this state. You have to follow it in all amputation claims. Amputation occurs in Illinois when bone loss is clear—it is not typically considered an amputation when skin is lost. No one knows what to do when bone loss occurs and the bone is later reattached—that couldn’t happen in 1909 when the Act was drafted and Illinois hasn’t updated our law. We disagree with the Court’s view of this provision of Act but they are charged with enforcing it and you have to follow their rules.

In reaching an academic disagreement with the court’s majority, we look to the statute for direction. It is basically a three-part Act. Section 8(a) provides virtually unlimited medical benefits for reasonable, necessary and related care. Section 8(b) provides for temporary total disability for all periods an injured worker is off due to injury. Sections 8(c), 8(d) and 8(e) provide permanent partial disability benefits for permanent loss of use in a number of ways. The injured worker receives benefits for his/her medical bills for life. TTD is received while healing.

Thereafter, the statute uses these words about payment of PPD in Section 8(e):

"For accidental injuries in the following schedule, the employee shall receive compensation for the period of temporary total incapacity for work resulting from such accidental injury, under subparagraph 1 of paragraph (b) of this Section, and shall receive in addition thereto compensation for a further period for the specific loss herein mentioned…"

We academically disagree with the Court’s analysis of the Act in Greene Welding and Hardware and Lester, their prior ruling upon which they rely to ignore the clear statutory language which requires PPD be paid “for a further period” following TTD. The Court has now ruled there is a “bright line” requiring simultaneous payment of both TTD and PPD. We feel the Act doesn’t say that and there is no such “bright line” in any provision of the legislation we or other academic sources can locate.

In support of our view of the plain English version of the Act, we point out Richard K. Johnson and Martha Garcia, the astute authors of the Illinois Institute for Continuing Legal Education’s Illinois Workers’ Compensation Handbook state in Section 8.23 of their chapter on Disability Evaluation:

"The amount due for permanent partial disability is payable weekly after the payments for TTD have been made."

It would appear their chapter has to now be brought up to date with the newly discovered “bright line” standard for amputation losses only. We assert numerous legal treatises and other Illinois Workers’ Compensation resources, like our KC&A WC book, the Illinois Trial Lawyers Handbook and the Commission’s own handbook may have to be brought up to date due to the recent breakthrough by this Court in their view of the payment of amputation losses as provided in our century-old Act. The ruling is on the web at: http://www.state.il.us/court/opinions/WorkersComp/2009/December/4090144WC.pdf

Why are we telling you this? Well, in 2005 the cost of amputation losses in Illinois went waaaaay up. The minimum weekly PPD rate for any Illinois amputation loss right now is $466.13. 100% loss of use of the index finger in Illinois for a part-time worker making $20 a week is at least $20,043.59. The maximum amputation loss for 100% loss of use of one index finger is $53,449.00. The minimum benefit in Illinois for 100% loss of use of an arm is $117,930.89; the maximum is $314,479.00. If you don’t follow this new payment rule and get hit with a 50% penalty and a 20% attorney fee on top of such numbers, you are looking at lots and lots of money. Follow the new rules and start to pay weekly PPD on amputation losses right away.

All in all, we want our readers to understand one overwhelming reason to read this Keefe, Campbell & Associates Monday Law Update is so you get the current gossip, new judicial “discoveries” and everything else that may be going on at the Commission and reviewing courts these days. While we don’t agree, if the ref calls it a touchdown and under scrutiny is stands as a touchdown, you have to adjust.

Source: Eugene Keefe is principal of Keefe, Campbell & Associates, a Chicago workers' compensation defense law firm. This column was reprinted with his permission from the firm's newsletter.</i>