Denial of Petition to Modify PTD Award

Wednesday, November 17, 2010 | 0

By Joseph Mulvey
Bryce, Downey & Lenkov
 
In Boyd Electric v. Workers' Compensation Commission, the Illinois Appellate Court has set a high hurdle for respondents petitions to modify the permanent total disability award.

The relevant section of the Act, 8(f), states in part: If any employee who receives an award under this paragraph afterwards returns to work or is able to do so, and ears or is able to earn as much as before the accident, payments under such award shall cease. If such employee returns to work, or is able to do so, and ears or is able to earn part but not as much as before the accident, such award shall be modified so as to conform to an award under paragraph (d) of this Section.

In short, Section 8(f) allows a permanent total disability award to be modified based upon changed circumstances.  However, the section affords respondents no way of determining whether Petitioners financial situation has changed post- award.

In Boyd Electric, respondent requested petitioner's tax records approximately two years after the arbitrator's decision was filed with the Commission.  Petitioner, through counsel, refused to disclose the financial records, arguing that respondent was not entitled to review or investigate petitioner's finances.

Respondent filed a petition to modify the award, consistent with Section 8(f).  Respondent's petition was denied by the Commission and by the Circuit Court of Cook County.  Both bodies held that respondent was not entitled to review petitioner's financial records.

Respondent's argument relied, by analogy, on their right to force petitioner to submit to a medical examination under Section 12.  Respondent argued that the Act made a medical examination available to determine if petitioner's medical condition had changed and that, therefore, it was reasonable to infer that there would be some investigative avenue available to determine if petitioner's financial situation had changed.

Unfortunately, respondent's analogy may have more done more harm to its argument than good. The Appellate Court's decision relies on the omission of a specific right to call for a financial investigation. Their decision points out that the Legislature and Commission clearly know how to create what is, in essence, a right for respondent to conduct an investigation into a petitioner's health status.

The inference therefore is that the Legislature and Commission have decided against creating an avenue for financial investigation expressio unius est exclusio alterius.

Practice Tip

As a practical matter, this ruling makes it much more difficult for a respondent to succeed on a petition to modify a permanent total disability award. However, there seems to be a fairly simple solution. Respondents considering a petition to modify an award based on a suspicion that petitioner has resumed working should conduct surveillance to determine whether petitioner is employed and subsequently subpoena his employer.

This should allow a respondent to determine with particularity the amount that a petitioner has been making and would allow them to present evidence during a hearing to reconsider.

WorkCompCentral subscribers may download the Boyd Electric opinion by clicking the case title in the sidebar.

Joseph Mulvey is an attorney for Bryce Downey & Lenkov, a Chicago-based workers' compensation defense firm with offices in Oakbrook, Ill.; Merrillville, Ind.; Memphis, Tenn.; and Atlanta, Ga. This column was reprinted with the firm's permission from its monthly newsletter.