After a quiet year where the Workers’ Compensation Commission panel of the Illinois Appellate Court had rendered only three published decisions, the five justices issued a flurry of opinions in December.  These cases addressed diverse matters, some of first impression in Illinois, involving undocumented aliens, fraudulent claims, and procedural constraints in litigating before the Commission.  Below is an analysis of these cases and recommendations for handling claims in the wake of the decisions. 

Economy Packing Company v. IWCC (December 9, 2008) - Undocumented Alien Entitled to Permanent Total Disability Benefits under “Odd-Lot” Category

The Appellate Court has now held that an undocumented alien can establish that she is permanently and totally disabled under the “odd-lot” doctrine because she proved that she cannot sustain regular employment in a well-known branch of the labor market without regard to her undocumented status.  The Court indicated the burden of proof would then shift to the employer to prove that, but for the undocumented alien’s legal inability to obtain employment, suitable work would be regularly and continuously available. 

In this case, the Commission had affirmed the arbitrator’s award to a woman who had suffered multiple injuries when she slipped, hit a wall and fell onto the floor while working on an assembly line manually deboning chickens.  The claimant had been born in Mexico and admitted that she lacked paperwork to obtain legal employment in the United States.  She had presented false documents when she applied for her position with the employer.  After her injury and treatment, she had permanent 10-lb. and no overhead lifting restrictions which could not be accommodated by the employer.  At that time, she was 60 years old and had been in the United States for more than two decades.  She had attended only three years of school in Mexico before working on a farm.  She spoke only Spanish and could not speak, read or write English.  She did not drive. 

Significantly, neither the vocational expert consulted by the claimant of the employer based their opinion on her undocumented alien status.  The employee’s expert stated she was limited to less than sedentary work for which no stable labor market existed, concluding that even if she were a citizen, she would not be employable.  The employer’s expert reported that while she was not a candidate for vocational rehabilitation, she would be able to perform a wide range of unskilled sedentary occupations but for her inability to legally obtain employment. 

Referencing the standards for proving entitlement to permanent and total disability under the “odd-lot” doctrine, the arbitrator concluded that the claimant was not obviously unemployable and the medical evidence indicated she was limited to less than sedentary work.  The Arbitrator concluded that her age, lack of education, lack of transferable skills, inability to speak English and physical restrictions rendered her unfit to perform any but the most menial tasks for which no stable labor market exists.  She was awarded permanent total disability benefits.  The Commission affirmed and adopted the arbitrator’s decision.  On the employer’s appeal, the Circuit Court, in turn, affirmed the Commission’s decision. 

The employer filed a further appeal to the Appellate Court and raised two issues.  The first issue was based on federal law (the “Immigration Reform and Control Act of l986”) barring employers in the United States from hiring undocumented aliens.  The employer argued that under this law, an undocumented alien is always unemployable and thus she could not prove she is unemployable as required for entitlement to permanent total disability benefits.

The Court rejected this argument, finding that the federal law does not automatically preempt an award of permanent total disability.  The Court concluded that the award does not conflict with federal immigration policy, reiterating that the claimant would be able to work elsewhere but for the work-related injury.  It further noted that, in contravention of the purpose of the federal law, excluding undocumented aliens from receiving workers’ compensation benefits would actually provide a financial incentive for employers to hire undocumented workers. 

The second issue before the Appellate Court was whether an undocumented alien can prove permanent total disability pursuant to the traditional test for employees who fall within the “odd-lot” category.  The Court stated that the employer was correct that the traditional test cannot be applied to undocumented aliens, but nevertheless, believed she could establish she is permanently and totally disabled under the “odd-lot” doctrine so long as her unemployability is not based upon her immigration status. 

The Appellate Court noted that this issue was one of first impression in Illinois and looked to a 2002 North Carolina case where their state court of appeals observed that although federal immigration law prevented an undocumented alien from returning to the same pre-injury job or any other job in the United States, federal law did not prohibit conducting a labor market survey to determine what suitable jobs are available bur for the immigration status.  The Illinois Appellate Court found that reasoning sound, noting that neither of the vocational experts had considered the claimant’s immigration status when proffering their opinions. The Court then, in affirming the Commission’s decision, cited to the Commission’s function to weigh the evidence and its greater reliance on the opinions of the claimant’s expert.  It rather routinely concluded that the Commission’s decision was not against the manifest weight of the evidence.  

The Economy Packing decision resolves a question that has been seen in more and more cases before various arbitrators.  Many arbitrators were receptive to the arguments that undocumented aliens were not entitled as a matter of law to permanent total disability benefits.  It is now clear that they may be entitled to these benefits if a sufficient factual showing is made.

 
Weyer v. IWCC (December 16, 2008) – Successive 19(b) Hearing Present Separate Causation Questions that are not precluded by the Law of the Case Doctrine

Sometimes cases drag on over a period of years and there are successive hearings for payment of interim lost time and/or medical benefits.  These hearings are held pursuant to sections 19(b) and 8(a) of the Workers’ Compensation Act.  Each award of lost time benefits may not extend beyond the date of the most recent hearing.  However, the award or, for that matter, the denial of such benefits does not bar future hearings for additional lost time, medical expenses and, when appropriate, for permanency.  A procedural issue arises when a previous hearing has addressed the threshold compensability issue of causation between the work accident and the injury that allegedly resulted therefrom. 

In Weyer, the claimant alleged a shoulder injury that an arbitrator initially determined was causally related to the work accident.  The claimant had an MRI of the shoulder which was negative for tears and had returned to work within the first six months following the accident.  However, his complaints continued and he was subsequently restricted from overhead lifting.  When that restriction was not accommodated, temporary total disability benefits were awarded. 

A second hearing resulted in an award for continuing lost time benefits due to ongoing shoulder complaints which prompted his doctor to question whether he had torn the rotator cuff or glenoid labrum.  An MR-arthrogram revealed a SLAP lesion that the treating physician opined had caused his persistent left shoulder problems since the work accident and recommended surgical repair.  The employer’s examining physician who had twice previously examined the claimant saw him again and reviewed the test results.  He opined that the labral tear (SLAP lesion) could have occurred any time during the past three years and because an MRI taken a few days after the work accident demonstrated that the glenoid labrum was intact, it did not relate back to the accident. 

After the second 19(b) hearing, the arbitrator found that while the claimant had suffered an aggravation of his shoulder condition at the time of the accident, it had resolved prior to the tear diagnosis.  The arbitrator cited the claimant’s ability to perform work and complete a functional capacity evaluation within the first six months after the accident which was inconsistent with his having sustained a labral tear.  The arbitrator denied further benefits and his second decision finding that the claimant failed to meet his burden of proving a causal relationship between the SLAP lesion and the work accident was affirmed by the Commission and subsequently, by the Circuit Court. 

On further appeal to the Appellate Court, the claimant argued that the first Arbitration decision, which neither party had reviewed to the Commission, was final and had resolved the causation issue.  The claimant cited the law of the case doctrine which provides that a final decision of a question of law or fact reached during the course of litigation settles that question for all subsequent stages of the case.  This doctrine has been held to apply to proceedings before the Commission. 

However, the Appellate Court held that the two Arbitration hearings had involved different legal and factual issues and since the labral tear was not diagnosed until later, the first hearing obviously did not involve the question of whether the tear had been caused by the work accident.  Thus, the law of the case doctrine did not prohibit the litigation of new issue presented by the recent labral tear diagnosis. 

This decision mandates a departure from common practice at the Commission where many arbitrators have refused to entertain causation issues to long-delayed diagnoses and newly arisen conditions.  Employers not have a solid basis to dispute causation to conditions that often do not arise until several years after work accidents.   

Smalley Steel Ring Company v. IWCC (December 12, 2008) – Employer Remedy for Fraudulent Claim is in Circuit Court not Commission Proceeding

In this case, it is helpful to start with a recitation of the relevant facts.  The claimant alleged a work injury resulting in left arm injuries and sought an Arbitration hearing.  At the hearing, the employer requested a 30-day continuance, in part to obtain verification of claimant’s identity asserting that his stated social security number belonged to a deceased person.  The arbitrator denied the continuance and proceeded to hold an evidentiary hearing on the merits.  Thereafter, he issued a decision finding a compensable accident and awarding lost time benefits and medical expenses.  Neither party sought review by the Commission; however, within the period for such appeal expired, the employer filed an emergency motion to recall the arbitrator’s decision and reopen proofs. 

In its motion, the employer provided evidence of the claimant’s having filed the claim using a false name and social security number.  It also set forth the claimant’s true identity and his having sustained a prior left arm injury while working for a different employer which had resulted in a settlement that the current employer could claim credit for.  Neither the claimant nor his attorney appeared on the motion and the arbitrator conducted a hearing on the motion.  At the conclusion of the hearing, the arbitrator granted the motion, recall his decision and reopened proofs. 

Thereafter, the arbitrator conducted another hearing and heard additional evidence.  Again, neither claimant nor his attorney appeared at the hearing.  The arbitrator then issued a second decision, determining that the claimant had lied at both the initial hearing and to his treating physicians.  He stated the claimant completely lacked credibility and had thus failed to prove he sustained a compensable accident.  His claim was denied in its entirety. 

The claimant appealed this second decision to the Commission.  The Commission held that the arbitrator had lacked jurisdiction recall his first decision, reopen proofs or reissue his decision.  It reinstated the arbitrator’s first decision as the Commission’s final decision and rendered the second arbitration decision null and void. 

The Commission decision was confirmed by the Circuit Court and subsequently in this recent decision, by the Appellate Court.  The Court stated that while the facts presented “an unfortunate scenario” and the employer possessed “strong evidence of fraud,” the arbitrator lacked the statutory authority to act.  It noted that the only statutory basis allowing an arbitrator, or the Commission for that matter, to recall a decision is to correct a clerical or computational error.  Despite the arbitrator’s failure to grant the continuance which had notified the claimant about the fraudulent conduct, his actions after issuing his first decision lacked statutory authority and were nullified.

The Appellate Court cited an old Illinois Supreme Court case from 1941 that lacking express authority of the Commission, the claimant was relegated to bringing a civil fraud action.  The Court also stated that the deficiency in the Commission’s authority should be addressed by the legislature. 

City of Chicago v. IWCC (December 23, 2008) – Employer’s IME Report Wrongly Excluded - Taking of Evidence Deposition does not constitute the Commencement of Hearing

At issue was whether the Commission erred in excluding an employer’s Independent Medical Examination (IME) report because it was not disclosed to the claimant prior to the taking of his treating physician’s deposition.  Employers routinely request that claimants be examined by a physician of their choice as provided for in section 12 of the Workers’ Compensation Act.  This provision requires that reports written by the examining physicians must be furnished to the employee or his representative “as soon as practicable but not later than 48 hours before the time the case is set for hearing.” 

A problem arises because often, arbitrators will request that the parties complete any doctor depositions before a claimant and any other witnesses testify.  Thus, all the evidence can be taken at one setting.  However, several Commission cases have equated “the time the case is set for hearing” with the taking of doctors’ depositions and excluded from evidence IME reports that have not been given to the opposing party more than 48 hours earlier. 

In this case, the Commission had excluded the report of the employer’s IME doctor because it had not been disclosed before the treating doctor’s deposition was taken.  In fact, it had not even been generated.   Both parties had taken the deposition of the treating physician by agreement.  At the time of the deposition, a hearing before an arbitrator was anticipated though no date had yet been set.  After the deposition, the matter remained pending for several months with no set hearing date.  During that time, the employer scheduled an IME as provided for in section 12 and a report was issued a few weeks later.  This report was given to the claimant’s attorney within another few weeks.  In a letter accompanying the report, the employer’s counsel inquired as to whether the claimant’s attorney would agree to admit the IME report or require a deposition of the doctor.  The claimant’s attorney never responded to the inquiry. 

Another five months later, when the case was heard by an arbitrator, the claimant’s attorney objected to the report.  The Arbitrator sustained the objection and issued his decision finding the claimant permanently and totally disabled based on the unrebutted opinions found in the treating physician’s deposition.  Once again, the Commission affirmed and adopted the arbitrator’s decision.  The employer appealed and the Circuit Court confirmed the Commission. 

However, the Appellate Court vacated the award, finding that as a matter of law, the arbitrator erred in excluding the employer’s IME report. The court reasoned that the 48-hour provision of section 12 sought to prevent surprise medical evidence at an arbitration hearing but that no such surprise had occurred here.  It cited the fact that the claimant had attended the IME without objection and the resulting report was tendered soon after the examination and well before the arbitration hearing. However, the Court cautioned that had the IME and report been completed before, but withheld until after, the treating doctor’s deposition, the outcome may have been different.

In this case, the Appellate Court has reached a logical and fair conclusion to the knee-jerk objections to properly obtained medical examinations and reports.  The Commission may not longer routinely reject these reports in the absence of any surprise or unfairness.  The right to a section 12 IME remains a vital tool in the defense of workers’ compensation claims.