The Mystery of Illinois
Workers' Compensation:
Permanent Partial Disability
by
Robert K. Bush
The Illinois Workers' Compensation Act was
enacted to aid employees injured in the course of their work. It provides
statutory "insurance" to the worker that his participation in
our industrial society will not prove calamitous should he suffer an injury.
The Act provides four kinds of benefits:
l. Medical payments;
2. Temporary total disability (TTD);
3. Permanent partial disability (PPD); and,
4. Rehabilitation payments.
Of these four types of benefits, the one presenting
the greatest mystery and controversy is PPD payments. This brief report
will explain the four types of payments with special emphasis on PPD payments.
The Illinois Workers' Compensation Act is contained
within the sub-headings of Chapter 48, Section l38 of the Illinois Revised
Statutes. The Act takes up more than 30 pages of the statute books. In non-fatal
cases, the Act requires that an employer provide and pay for all necessary
first-aid, medical and surgical services and all necessary medical, surgical
and hospital services thereafter incurred which are reasonable required
to cure or relieve the effects of the accident of injury. The Act also provides
that the employer shall pay for treatment, instruction and training necessary
for the physical, mental and vocational rehabilitation of the employee including
all maintenance costs and expenses. If, as a result of the injury, the employee
is unable to be self- sufficient, the employer also must pay for such maintenance
or institutional care as shall be required. Although disputes arise regarding
the necessity for certain medical expenses and rehabilitation costs, such
matters can generally be resolved through negotiation and the employment
of independent experts. Neither the provisions of the Act regarding the
payment of medical bills nor those relating to rehabilitation programs tend
to result in major disputes.
In most cases, it is also rather easy to determine
the appropriate period of time for which the employee is entitled to temporary
total disability (TTD) payments. The employee is entitled to such payments
in an amount of 66-2/3% of his regular salary for that period of time when
he is unable to return to work. In most instances, an employee is anxious
to return to work so that he can resume earning his full salary and the
employer, while anxious to return the employee to productive work, has no
great incentive in forcing the employee to return to work at a time when
he may be susceptible to additional injuries.
While a determination of the proper amount
of medical rehabilitation payments or TTD payments are relatively easy to
determine, there are no easy answers or references in determining permanent
partial disability (PPD) amounts due under the Act. The Act does contain
a list of specific amounts due to employees for TTD benefits incurred as
a result of certain specific injuries. The Act states the amount due to
the employee in the number of weeks for which payments must be made in an
amount equal to the employee's regular salary. Thus, for example, the loss
of or the permanent and complete loss of the use of a little finger is equated
by the statute with 20 weeks at the employee's regular salary, a loss of
hearing of one ear50 weeks and the loss of a toe, other than the great toel2
weeks. However, for the lion's share of injuries, the Act provides no true
guidelines other than setting the maximum number of weeks payable for l00
percent loss of a particular part of the body. The statute gives no definition
of permanent partial impairment, in fact, the term is never specifically
mentioned. The courts have stated only that disability which continues for
"a long period of time without substantial improvement is sufficient
time to justify a finding that an injury is permanent." Overland
Construction Company vs. Industrial Commission, 37 Ill.2d 525, 229 N.E.2d
500, 504 (l967). Injuries for which PPD claims are made range from paralysis
to paper cuts and from amputations to sprains. In each case, unless the
parties can reach a settlement, the claim of the employee is heard at a
full hearing before an arbitrator appointed by the Industrial Commission.
The decision of the arbitrator can be appealed by either party to the full
Industrial Commission, then to the circuit court of the county and finally
to the State Supreme Court.
Neither the Act, nor the courts, nor the Industrial
Commission, have yet devised any objective means or standards by which permanent
partial impairment is to be determined.
At a hearing before an arbitrator, the oral
or written testimony of physicians are presented. Typically, the physicians
differ on their analysis of the severity of the injury and its effect on
the future work performance of the particular employee.
What has come to pass over the course of time
is a series of informal and unpublished Industrial Commission "standards"
for various injuries which guide the arbitrator and experienced practitioner.
These are subject to adjustments from time to time given the prevailing
attitude at the Commission, but have remained reasonably stable over the
last several years. For example, an operated knee with the removal of a
single cartilage will almost always result in an arbitration award from
25 to 35 percent loss of use of a leg; a minor mid-shaft bone fracture will
generally result in liability of from l0 to 20 percent loss of the particular
member; a herniated lumbar disc with surgery will almost always draw an
award from l7-l/2 to 30 percent loss of the man as a whole.
There are certain non-medical factors the Industrial
Commission deems important and which serve to adjust the award to the upper
or lower ranges. For example, the younger a petitioner, the higher the award
due to the fact the person will have to live with the disability for a longer
period of time. The arbitrator will also consider the relationship between
the injury and the type of work which the employee performs; thus, the effect
of a back injury to a sales clerk will not be evaluated as severely as a
back injury to a heavy laborer. An individual who relies solely on physical
effort to earn a living may receive a higher award than someone with many
skills. An injury to a dominant side, or hand; particularly where surgery
is performed will result in a higher award than an injury to the other side.
Another factor, which should be irrelevant, but which is of great practical
significance, is the amount of time lost by the injured employee. A two-week
lost time back strain is worth significantly less than a sixteen-week lost
time back strain even if all the findings after two years are identical
in the two cases.
While one can enumerate the factors considered
in determining where on the scale an award will be entered, there is still
no answer for the question, "Why is a fracture worth 20 percent loss
of use of the member?" There is no medical justification or reason
why the Industrial Commission awards will seldom, if ever, conform to the
objective standards of disability as developed by medical associations.
There is no standard set by the Industrial Commission in its decisions.
Although the Commission does publish its decisions, no clear system of precedent
is used by the Commission. Rather, each case is treated almost like a unique
occurrence.
Perhaps the most troubling aspect of representing
employers in cases before the Industrial Commission is the treatment often
accorded to employees who have suffered what appear to be minor or well-healed
injuries. Employers frequently inquire why, after their employee returns
to work and shows no visible signs of disability, performing his or her
job in the regular fashion and often participating in outside recreational
activities with seemingly no impairment, the Industrial Commission decides
that employee has suffered a permanent partial percentage loss. How did
the Industrial Commission decide this disability exists, especially when
the employer has a medical report from the treating physician or examining
doctor declaring that no permanent disability resulted from the injury?
The attitude exhibited by the arbitrators and
the Commission is in part based on considerations of sympathy and politics
and in part based on reality. The experience of the arbitrators is that
in many instances seemingly minor injuries have serious long-term effects.
Sometimes the long- term effects do not appear until a time when the employee
can no longer make a compensation claim against any employer. While a broken
bone or an operated knee may seem to have little or no effect on the employee
at the present time; l0 or 20 years later the injury may make the employee
susceptible to other infirmities to a greater extent than the general public.
The Commission is aware, for example, that joints weakened in an industrial
accident are more susceptible to long-term arthritic changes. Of course,
the employee may never have these additional problems. Unfortunately for
employers, including the public employer, the system under which workers'
claims are adjudicated has made large scale provision for certain medical
and social intangibles.
The administration of the Workers' Compensation
Act has been statutorily delegated to the Industrial Commission. The courts
generally have refused to invade the province of the Industrial Commission
in determining impairment ratings for particular injuries. A court can only
reverse the decision of the Industrial Commission when it is "contrary
to the manifest weight of the evidence." In fact, few, if any, decisions
of the Supreme Court in recent years have reversed a determination of the
Industrial Commission as to the nature and extent of the employee's injury.
Before the courts, the reports of even the most biased and litigious physician
become elevated to the level of "conflicting medical testimony,"
the resolution of which is left to the rather liberal judgment of the Industrial
Commission. The Industrial Commission has reacted to the consistent affirmance
of its decisions by the Supreme Court by continuing to give the benefit
of doubt to the employee. Since repeated attempts to modify the procedures
under which these cases are heard have failed in the legislation, it must
be acknowledged that the current system, with its abuses, reflects public
policy as stated by our elected officials.
Local governmental bodies must operate in the
same realistic world as private corporations. It is not without justification
that employer organizations such as the Illinois Chamber of Commerce have
attempted for many years to change Illinois workers' compensation rules.
To some extent, it is not the rules which need to be changed, it is the
inherent policy within the system which leaves only few claims for PPD payments
totally uncompensated. Like any other institution, the Industrial Commission
tends to be self-corrective, but on a path which from time to time excessively
benefits one interest group or another.
During the early days of workers' compensation
claims, employees received only limited benefits for extremely severe injuries.
The entire workers' compensation system was, of course, developed in response
to instances in which industrial employees had little chance of taking on
and beating well-financed employers under a system where the employee needed
to prove specific negligent acts of the employer and had to prove that he
himself had been totally free of contributory negligence. In return for
the employees giving up their rights to make claims for pain and suffering,
the State provided them with a system where they were not required to prove
negligence and where their cases would be heard by arbitrators who would
be more sympathetic to the dangers inherent in an industrial setting. By
State law, all local government employees were automatically made beneficiaries
of the workers' compensation system. Therefore, while the basic concept
of the Act was to protect a worker who lost an arm in an industrial accident,
the provisions of the Act now provide benefits for firefighters who are
injured in volleyball games which are part of an assigned recreational activity.
What actions then should local governments
take in defending workers' compensation claims? First, all valid claims
should be processed promptly and with friendliness and sympathy for the
injury of the employee. Suspicious or fraudulent claims should be rapidly
identified and vigorously defended. In the great bulk of cases, settlements
should be attempted at levels which reflect the existing practices of the
Industrial Commission along with the known propensities of individual arbitrators
to whom cases are assigned. In cases where a claim for PPD benefits are
made and it is unlikely that permanency will result, a vigorous defense
should be made and a settlement agreed to only if it is at the low range
of the liberal standards common at the Commission. Where the facts of the
case are relatively clear, that case should be tried.
It is comforting to note that in recent years,
certain arbitrators have stopped the practice of awarding PPD payments in
at least some amount simply because an application for such payments is
filed. Following the general practice of affirming the decision of arbitrators,
the Industrial Commission and the courts have generally upheld conservative
awards as well as more liberal awards.
Local governmental bodies employing lawyers
to defend Industrial Commission cases should be aware of the fact that a
vigorous defense, rather than the settlement of all cases in which the anticipated
award by an arbitrator appears excessive cannot be cost justified. In the
same way that a village manager, police chief or school superintendent cannot
research and fully staff all citizens' inquiries, a legal strategy for the
defense of workers' compensation cases must include an expensive trial only
in those instances where matters of policy are at stake, extremely favorable
facts are present or the amount at issue is large. Finally, local governmental
bodies working through their intergovernmental agencies and organizations
should continue to seek both legislative changes and policy changes in the
manner in which the compensation for injured Illinois workers are adjudicated.
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