The Workers' Compensation Division of the Illinois Appellate Court - Summary of Recent Significant Cases
Two Penalties Decisions – One Emphatic Directive and A Separate Denial
Penalties for Untimely Payment of Final Award of Benefits
– Jacobo v. Illinois Workers’ Compensation Commission
The Appellate Court issued a strict directive to employers to pay any undisputed award without delay despite ongoing appeal of an issue unrelated to entitlement to the award. The Commission had affirmed an arbitration award of 203 weeks of temporary total disability benefits followed by total and permanent disability benefits as well as medical expenses. However, the Commission reversed the Arbitrator’s award of penalties and fees. Thereafter, the employer did not appeal the Commission’s decision, but the claimant sought review by the Circuit Court on the limited issue of the Commission’s denial of penalties.
During the court review proceedings, the employer did not pay the underlying award - a period of more than two years, arguing that the award was not final and therefore the award was not due and owing. The Court disagreed with the employer’s position, finding there was no “legitimate reason to withhold payment of the undisputed awards” since the claimant’s appeal involved an issue unrelated to the substantive awards.
Applying a manifest weight standard and noting that the employer had the burden to prove the delay was reasonable, the Court stated that the employer must have more than honest belief that a claim is invalid or not supported by evidence. Strongly criticizing the employer, the Court held its “feigned ignorance of what issues were contested in the claimant’s appeal is not a reasonable justification to delay the payment of the uncontested portion of the award.” Concluding the employer’s action lacked good and just cause, the Court found the Commission’s denial of section 19(l) penalties was against the manifest weight of the evidence.
Turning to section 19(k) penalties and section 16 attorney’s fees which require an even higher standard of disregard, the Court found the employer’s determination to simply not pay until all appeals on contested issues were exhausted lacked more than good and just cause and was intentional. Serving no purpose other than delaying compensation to an injured worked and thus frustrating the Act’s purpose to expedite payment of compensation, the Court also found the Commission’s denial of section 19(k) penalties and 16 attorney’s fees was both against manifest weight and an abuse of discretion
The Court also commented that a claimant need not reduce award to judgment. Nor is a claimant required to make a request for payment. The Court concluded with these words:
“We want to be clear on this point. Any portion of a claimant’s benefits
which are undisputed must be promptly paid or the employer will be subject to penalties and attorney fees under the Act.”
This is a harsh and strict rule imposed by Court and should be followed without fail.
No Penalties for Delay in Authorization of Medical Procedures – Hollywood Casino-Aurora v. Illinois Workers’ Compensation Commission
After a decision awarding interim temporary benefits, the claimant continued under treatment and her doctor sent a letter to the claims adjuster describing the future need for a surgical procedure to replace a battery in a spinal cord stimulator. Five months later, the stimulator quit working and the surgery was scheduled. The adjuster requested additional information which was provided over a six-week period and while surgery was rescheduled, the authorization was not given for another two months. After a hearing on a petition seeking penalties due to the delay in authorizing the procedure, the Commission found the employer had “unreasonably delayed authorization for the surgery . . . without good and just cause” and awarded $40,750 in penalties under section 19(k) of the Act.
The Appellate Court reversed the Commission, holding that the Act provided for penalties only for the delay of payment of compensation or intentional underpayment, but not for delay in authorization of medical treatment. The Court noted the Act “says nothing about any award of additional compensation (penalties) for an employer’s delay in authorizing medical treatment, even assuming arguendo that an employer has an obligation to give authorization in advance of medical treatment for an injured employee.”
The Court applied a strict statutory construction analysis of the Act’s provisions were clear and unambiguous in making a distinction between delay in payment of treatment versus authorization thereof was clear and unambiguous. The Court denied penalties despite the undisputed fact of the several months’ delay before authorizing the battery replacement surgery and language in the Act obligating employers to provide and pay for reasonable and necessary medical and surgical services.
This decision was signed by a three-judge majority with dual dissents criticizing the majority’s “narrow view” of the Act. Given the situation in this case, necessary, related and undisputed medical care should be timely approved. There are already legislative proposals to amend the statute and provide for penalties for failure to or delay in authorizing medical treatment.
Speaking of Appeals – Strict Deadline for Filing Circuit Court Review and Rejection of Mailbox Rule – Gruszeczka v. Illinois Workers’ Compensation Commission
Another recent ruling declared a hard and fast rule based on strict interpretation of clear statutory language involving the 20-day deadline to file an appeal of a Commission decision with the Circuit Court. In order for the Circuit Court to obtain jurisdiction in an appeal, there must be “strict statutory compliance” with the appeal procedures set forth in the Workers’ Compensation Act. The Act provides that a proceeding for judicial review of a Commission decision “shall be commenced with 20 days of the receipt of notice of the decision” and that commencement of an action for judicial review is done by filing a request for summons along with evidence of payment of costs of the record
The question in the Gruszeczka case was whether these items had to actually be filed with the clerk of the Court within the 20 days or if the date that such documents were mailed to the clerk was deemed the commencement date. In seeking to appeal the Commission decision, the employee’s attorney had mailed the request for issuance of summons and accompanying documentation to the Circuit Court clerk 14 days after receiving the Commission’s decision. The Clerk did not file the documents until the 24th day and there was no evidence of when the Clerk had received the documents in its office. The employer’s attorney filed a motion to dismiss the appeal for lack of jurisdiction because the filing was not made within the 20-day period.
Although the Circuit Court denied the motion, the Appellate Court reversed that ruling and granted the dismissal. The Court found the Act’s language regarding the commencement of judicial review was clear and unambiguous and should be given its plain meaning. Stating “[w]e are at a loss to understand how one can begin or start any action in the circuit court before the necessary documentation is presented to the clerk of the court,” the Court held that the claimant had failed to commence his action for judicial review within the mandated 20-day period.
In so holding, the Court rejected application of the Mailbox Rule which confers filing status on the date of filing in certain circumstances including (as one dissenting opinion pointed out) the filing of a petition for review of an arbitration decision with the Commission and the filing of a notice of appeal from the circuit court to the appellate court. The dissenting judge thus noted that all other jurisdictional steps for appeals of workers’ compensation cases through the appellate court follow the Mailbox Rule. He saw no reason to rule otherwise in appeals from the Commission to the Circuit Court.
Both dissents emphasized the lack of a definition of “commenced” or how a request for summons is “filed” with the clerk of the circuit clerk and considered those terms ambiguous. The dissents reasoned that these terms should be considered in light of modern policies and practices including the widespread practice of filing documents by mail and of equating time of mailing with actual receipt. Finally, one dissenting judge cited authority that “[a] statute capable to two interpretations should be given that which is reasonable and which will not produce absurd, unjust, unreasonable or inconvenient results that the legislature could not have intended.”
This decision does seem to produce an absurd and unjust result. The 20-day time frame is shorter than any other appeal or review deadline from arbitration to the Commission and then from the Circuit Court to the Appellate Court. Yet, during that shortened period, an employer must weigh the factors for and against appealing and also obtain an appeal bond (which requires several steps and signatures). Further, this decision is an administrative appeal and not the filing of an original action in the Circuit Court. It is imperative that a quick decision be made and steps be taken to move forward with appeals of Commission decisions.
Another Odd-Lot Permanent Total Disability Case – Professional Transportation v. Illinois Workers’ Compensation Commission
The Appellate Court revisited the judicial construct of an odd-lot permanent total claimant – one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market, then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. The Court noted that in prior decisions, an injured employee can establish permanent total disability in one of three ways.
• by a preponderance of medical evidence,
• by showing a diligent but unsuccessful job search, or
• by demonstrating because of age, training, education, experience and condition, there are no available jobs for a person in his circumstances.
The Court agreed with the Commission that the evidence did not support a medical basis for permanent total disability (no less than five physicians opined the claimant could work with varying restrictions) or a diligent but unsuccessful job search (applying for cashier positions at nine auto dealerships and looking in the Sunday want ads). However, the Court reversed the Commission’s finding of permanent total disability based on the third option above.
The Court concluded that the claimant failed to prove by a preponderance of the evidence that he is so handicapped that he will not be employed regularly in any well-known branch of the labor market. In fact, the Court found that the claimant failed to introduce any evidence that there was no stable job market for a person of his age, skills, training, work history, and physical condition. In contrast, the employer’s vocational rehabilitation expert found the claimant capable of working as an entry-level cashier within his restrictions and cited statistics projecting an increase in cashier positions in his geographic area.
While the Court rarely sets aside a Commission decision as against the manifest weight of the evidence, the majority opinion indicated “the clearly evident, plain and indisputable weight of the evidence compels an opposite conclusion.” The ongoing concern is that evidence of a broader, extended job search much less a vocational rehabilitation opinion from the claimant would have likely produced a different result. Contrast such prospect of lifetime disability benefits for a disabled yet not obviously unemployable claimant in the current period of recession and high unemployment where many non-disabled workers cannot find steady employment.
Inclusion of Overtime Earnings in Average Weekly Wage Calculation – Mandatory and Regular Requirements and When is a “Bonus” not a “Bonus” – Arcelor Mittal Steel v. Illinois Workers’ Compensation Commission
The Commission included scheduled overtime earnings in calculating claimant’s average weekly wage and in excluding unscheduled, voluntary overtime wages. The Appellate Court upheld this distinction while maintaining both the mandatory and regular prongs in the test for determining whether to include overtime earnings.
More novel was the Court’s analysis of the Commission’s inclusion of production bonuses in the average weekly wage calculation. Drawing a distinction between incentive-based pay and a bonus for no specific work performed or in consideration of overall performance, the Court affirmed the Commission’s inclusion of the production bonuses. Here, the claimant received production bonuses in consideration for work performed as envisioned under a collective bargaining agreement (CBA) and not as a gratuitous benefit provided by the employer. Under the CBA bonus plan, the employer had no discretion and was obligated to pay the production bonuses earned by its employees. Thus, they were not excluded bonuses as contemplated by section 10 of the Act but were in consideration for work actually performed. This case supplements the significant Airborne Express overtime holding rather than enacting a significant expansion or change.