Setting Reserves in the Wake of the Appellate Court Decision in Pisano
On December 7, 2018, the Appellate Court of Illinois issued a Decision in William Pisano v. The Illinois Workers’ Compensation Commission (City of Chicago), 2018 IL App (1st) 172712WC, which sheds further light on awards for permanent partial disability in cases where multiple accidents and injuries are at issue, and a wage loss results as one of the cases.
Sections 8(d)1 and 8(e) of the Workers’ Compensation Act envision a single permanency award for a claimant’s condition as a result in a work injury. Section 8(d)1 indicates that the Commission may award a claimant a wage-differential benefit “except in cases compensated under the specific schedule set forth in paragraph (e) of this Section.” 820 ILCS 305/8(d)(1) (West 2006). Section 8(e) indicates that a claimant may be granted a scheduled award “but shall not receive any compensation under any other provisions of the Act.” 820 ILCS 305/8(e) (West 2006). In considering the application of Section 8(d)1 and 8(e), the Supreme Court has held that compensation may be proper under either of these sections, but not both at once. General Electric Co. v. Industrial Comm’n, 89 Ill.2d 432, 437, 433 N.E.2d 671, 60 Ill. Dec. 629 (1982). Clearly, a claimant may not recover both a specific loss under Section 8(e) and a wage-differential award under section 8(d)1 for the same accident.
However, as any claims professional or practitioner can attest, some claimants have multiple accidents, and thus, multiple claims pending at the same time. If a dispute arises and a trial ensues, it is common to consolidate the claims for the purposes of trial, to preserve judicial resources. Accordingly, it should come as no surprise that the Courts have been asked to consider the propriety of allowing an award for specific loss under Section 8(e) in one of the consolidated cases, and an award for wage-differential in one of the other consolidated cases.
A review of the relevant Appellate Court decisions illustrates the Court’s recent interpretations of Sections 8(d)1, 8(d)2 and 8(e) awards in cases where multiple accidents and injuries are presented for consolidated trial.
In Baumgartner v. Ill. Workers’ Comp. Comm’n (County of Cook), 409 Ill. App. 3d 274, 947 N.E.2d 856 (April 11, 2011), the employee filed three Applications for Adjustment of Claim, for three separate accidents, the first two involving injuries to his right knee, and the third alleging an injury to the right foot. The Arbitrator awarded a wage-differential under Section 8(d)1 for all three cases. The Commission affirmed. The Appellate Court found that the Commission had properly evaluated the totality of the evidence as it related to the claimant’s overall condition of ill-being at the time of the hearing, and entered a single award that encompassed the full extent of the disability (the wage differential).
In Village of Deerfield v. Ill. Workers’ Comp. Comm’n, 24 N.E.3d 290, 388 Ill. Dec. 382 (2014), the employee had three accidents, which were consolidated and tried together. The Arbitrator awarded 25% loss of use to the left arm and 15 % loss of use to the right arm under Section 8(e) of the Act for the first accident, a wage differential for the second accident, and no permanency for the third accident. The Commission converted the Arbitration award as to the first accident to 18.8% loss of use to the person as a whole under Section 8(d)2 of the Act (see, Will County Forest Preserve v. Illinois Workers’ Compensation Comm’n, 970 N.E.2d 16, 361 Ill. Dec. 16 (2012)), and affirmed the award of the wage differential for the second accident and finding of no causation as to the third accident. The Appellate Court declined to apply Baumgartner, and held that the Commission awards of 18.8% loss of use to the person as a whole for the first accident, plus a wage-differential under Section 8(d)1 for the second accident, were not against the manifest weight of the evidence.
Most recently, in William Pisano v. Illinois Workers’ Compensation Comm’n (City of Chicago), 2018 IL App (1st) 172712WC (December 7, 2018), the employee filed three Applications for Adjustment of Claim for three workers’ compensation accidents. The three cases were consolidated and tried together. The Commission affirmed the Arbitration Decision as to the 8(e) awards in the first case and the wage differential in the second case.
Ultimately, the Appellate Court concluded that the Commission’s original award of 20% loss of use to the right arm was not against the manifest weight of the evidence as the employee had sustained only one injury to the elbow in the first accident, and none of the other accidents involved a loss of use to the elbow. However, as the employee alleged a right wrist injury in both the first and the second accidents, and the second accident resulted in a wage loss, the employee could only receive one award for that condition. The Appellate Court vacated the 8(e) award of 30% loss of use to the right hand from the first accident. The Court affirmed the award of wage differential benefits under Section 8(d)1 as to the second accident, as sufficient evidence was presented to support the Commission’s award of wage differential benefits due to the petitioner’s second and third accidents.
In the wake of Pisano, it is clear that each body part should be reserved separately at the onset, and adjusted as the claim progresses, especially if it appears that a claimant may ultimately claim entitlement to a wage differential award.
Per Pisano, the body parts involved in the wage loss claim are not eligible for separate compensation in that case, or any of the other cases being tried at the same time. However, if the petitioner injures separate body parts in the earlier cases, which are not re-aggravated in the case that results in the wage loss, the employee could receive an award under Section 8(d)2 or 8(e) for the body parts that are NOT involved in the wage loss case.