Form and Function of the Supreme Court's Rule 23 Order

Friday, January 31, 2014 | 0

You have heard us discuss what we feel is the dreaded Rule 23 gag or “unpublished” Illinois Appellate Court order in the past with some harsh criticism, but most of the time, and especially in recent courtroom opinions, we feel it is used the right way. We provide a little detail over one of our most recent victories, and a bit of exposition on the status of the court’s use of the Rule 23 order.

In Glass v. YRC, this firm defended one of the nation’s largest trucking organizations. At the initial arbitration hearing, petitioner was awarded benefits and a prospective lumbar fusion surgery. The facts of the claim were not wholly one-sided though, and on appeal at the Illinois Workers' Compensation Commission, the commission agreed with a multitude of arguments made by Arik Hetue in his appeal of the arbitrator’s decision. Ultimately, the commissioners ruled petitioner suffered a temporary aggravation of a preexisting condition and confirmed the prospective surgery was not causally related to the work injury. On appeal at the circuit and appellate courts, the commission's decision was affirmed.

It sounds a bit like a run-of-the mill case, but we assure you there was a lot of medical care and a potential wage differential award hanging in the balance. What the case lets us do however is explore two very important concepts – the manifest weight of the evidence standard and the Rule 23 Order.
 
In Glass, the facts were up in the air and the case really could have gone either way – as evidenced by the arbitrator awarding benefits and the commission reversing and awarding some benefits, but confirming the medical care at issue was not related. While all defense victories are a joy to a defense attorney, in this line of business, the commission appeal level is the one you want to win. As we have discussed ad nauseum in the past, the commission gets to look at everything with a fresh set of eyes and draw its own conclusions – it is not required to give any weight or deference to the arbitrator’s findings. The legal term of art for this standard is “de novo,” and it allows the commission to revisit the facts and come to a different conclusion than the arbitrator did.

Why is this the level we are so pleased to win at? Once a case moves from the commission to the circuit court – the facts are “locked in” and any reviewing court can only come to a different factual finding if the facts are “against the manifest weight of the evidence.” That means the opposite conclusion has to be clearly apparent – it’s the kind of thing that happens rarely, or that is supposed to happen rarely. In Glass, the circuit court judge clearly outlined his opinion that while the facts in a case can go either way, he is forbidden to substitute his view of them for the Commission’s. We agree and feel that is right in line with the appropriate legal standard. We were extremely pleased to see the Illinois Workers' Compensation Appellate Court agree and issue a simple ruling in the form of the Rule 23 Order.
 
A Rule 23 Order is an unpublished opinion – it’s meant to be used in cases like this one, where there is no significant controversy or groundbreaking ruling that may require publishing the opinion such that others could rely on the Court’s statements in other similar circumstances. We have complained bitterly in the past in this KCB&A Update about cases that were decided under this type or order which had what seemed like far-reaching impactive statements by the court.
 
Well, it appears they got the message, as we have recently performed a review of all of the Rule 23 orders from the past six months. Not a single such order was used in a case where there was what we feel to be a statement or ruling that should have been published. Bully for you, Appellate Court justices! We hope they continue to keep using this order in the manner it was intended for and continue to publish those rulings that have more far-reaching statements.

Arik D. Hetue is an attorney for the Keefe, Campbell, Biery & Associates workers' compensation defense firm in Chicago. This column was reprinted with permission from the firm's weekly newsletter.