Editor’s comment: One thing we are trying to tell the voices of WC reform in this state is our commitment to all of our readers that we don’t have to focus all our money and attention on changing the Act. The problem we have is the way the Act is interpreted. The paradigm of odd interpretation of wildly high and out-of-control workers’ compensation benefits in Illinois is Section 8(d-1) that provides lottery-level-winning benefits to individuals with non-life-changing conditions such as sore elbows. This is one such case. We want our readers to understand wage loss “differential” benefits are supposed to make up the difference between what an injured worker was making and what he/she could be making in a new job—if you don’t have a new job, there is no “differential” to make up. Regardless of that fact, the current Commission and reviewing courts may not seem to mind and may be willing to award millions in a fashion a more conservative Commission wouldn’t. Let’s see how it currently works.
In Copperweld Tubing Products v. Illinois Workers’ Compensation Commission, (No. 1-09-1422WC June 22, 2010), the Appellate Court considered a claim in which Claimant was employed as a mill operator. On November 28, 2001 Claimant was pulling a spacer which fell and strained his left elbow. Claimant was diagnosed with left lateral epicondylitis and underwent an anterior submuscular transposition of his left ulnar nerve on September 20, 2002 and a second submuscular transposition of the left nerve in December 2002. He later had a third surgery. Despite the fact claimant only had one injury to one elbow, following claimant’s surgeries an FCE was performed which revealed claimant possessed the ability to work at the light to medium physical demand level.
As we have told our readers on numerous occasions, an FCE resulting in permanent work restriction provides the “golden diagnosis” that leads to a claim for lifetime wage loss benefits under Section 8(d-1). As our law requires to best set up such a claim, the injured worker clowned around in vocational rehabilitation and didn’t find the jobs recommended. At one point, the vocational rehabilitation counsel for the employer opined he could locate work in a range between $8-12 per hour. Almost two years after being released from care, claimant got a job on his own as a security guard making $8 per hour. He quit six months later and has never worked again. This happened in 2006.
Why would a guy who was making that much money grab a job as a security guard at that low rate of pay? We have called this Section 8(d-1) strategy Bad-Job-Right-Away for about twenty years. You don’t see these sorts of shenanigans in other states. The idea is to document the ability to work but set the rate of pay at the lowest possible amount to concomitantly insure the highest possible wage loss differential benefit.
What happened then was the creation of a problem with the claim—the Petitioner side might have gotten a little too aggressive. For comparison purposes, they used another employee who made $78,000 per year. The problem arose when some of the co-worker’s wages were from mandatory overtime but some of his wages were from overtime that he bid for. All of it delayed the claim while the parties appealed it all the way to the Appellate Court which still hasn’t resolved the claim four years after the security job ended. While we aren’t completely certain, we are confident claimant still has refused to return to any job and vocational counseling probably ended four or more years ago.
Where is the claim at right now? Well the Commission previously awarded this claimant $534.16 per week for wage loss differential. If that amount stands up to further scrutiny, he will be paid $27,776.32 on a tax-free basis for life. And, in this state, he is entitled to the benefits and he can still work even in the same pre-injury job or at a job that pays double or triple what he was making—this all comes from the odd ruling in Cassens Transport. Please note the current decision in Copperweld Tubing Products above doesn’t state Claimant’s age but if he lives forty years, he will receive a cool $1,111,052.80 without having to pay state or federal taxes. He will receive all of that money for one injury to one elbow. You may note it would be the equivalent of about 400% loss of use of the arm. There is no state in the United States that provides such largesse.
The Appellate Court sent it all back to the Commission for reconsideration of the award without the mandatory overtime. When the Commission gets it back, they will now be considering a record in which claimant has been out of the work force and appears to have retired from all work and withdrawn from the workforce. If someone with the slightest defense focus were to look at such facts, it is possible they could reasonably limit the award to specific loss of use of the arm and maybe something under Section 8(d-2) for “loss of trade.” Again, in Illinois, with respect to our current Commissioners, we don’t think the administrative hearing officers will care. It is our view no one will have any problem with awarding wage “differential” benefits to someone who has had no wages for more than four years and is obviously participating in litigation gaming.
So you either have to change the thinkers or change the rule. With respect to the current Commission, it may be dramatically easier to change the thinkers. Either way, from the defense side of the bar, we have no problem awarding wage loss differential benefits to make up actual or even projected “lost wages.” It is our view it is outrageous, business-busting and anti-job creation to force Illinois employers to award potentially seven-figure lifetime benefits in the fashion awarded in this claim.
Post Provided by Gene Keefe of Keefe, Campbell & Associates, LLC. The firm was started by
Eugene F. Keefe, Michael J. Danielewicz, John P.
Campbell, Joseph R. Needham and Shawn R. Biery with
the goal of providing high-quality and cost-effective
civil litigation services for the defense of
self-insured employers and insurance carriers.
