Understanding Permanency Awards Under Illinois Workers’ Compensation

The Illinois Workers’ Compensation Commission uses both statutory guidance and decades of expertise to determine permanency for an injured worker.  The Illinois Workers’ Compensation Act provides three types of benefits:

1. Medical benefits pursuant to Section 8(a)
2. TTD or lost time benefits pursuant to Section 8(b), and
3. Permanency benefits pursuant to several sections:

• Section 8(e) – specific or scheduled loss to a member (think appendage)
• Section 8(d)2 – loss of use to a person (such as an injury to the spine)
• Section 8(d)1 – a wage loss
• Section 8(c) – disfigurement
• Section 8(f) – permanent total disability.

Each of the permanency sections address an injured worker’s right to permanency benefits once MMI has been achieved and after necessary medical care has been provided.  There are other types of benefits, but they are not relevant to the inquiry regarding PPD benefits post MMI with a full duty release.

The Illinois Workers’ Compensation Commission (IWCC) is empowered by statute to determine the disability resulting from the effects of a work injury.  For injuries occurring after September 1, 2011, the IWCC considers 5 factors set forth in Section 8.1b(b) of the Act in determining permanent disability:

1. Any AMA Rating
2. The IW’s position and job demands
3. The IW’s age
4. The imposition or lack thereof of work restrictions
5. Any evidence of disability in the treating records.

This determination and award of permanency will be made after an injured worker reaches MMI.  Further, permanency for loss of use will be made even if all medical expenses have been paid, TTD liability has been satisfied, and the injured worker is released to return to work without restrictions.  An award of permanency benefits after a release to return to full duty work might best be understood by considering the statutory history behind such awards.

The IWCC received a statutory directive for determining the nature and extent of injuries from the State legislature some 55 years ago. Codified in Section 19(e), beginning January 1, 1981, the IWCC was required to begin issuing written decisions setting forth findings of fact, conclusions of law, and the rationale for its decision.  Thus, all permanency awards were to be in writing with an explanation as to the basis for the award.

The IWCC noted while the Illinois Workers’ Compensation Act assigns a value to members and parts of the body, the Act does not precisely specify the amount of compensation payable when an injury results in less than 100% loss of use.  Simply stated, there are no standards for determining permanent disability for less than a 100% loss of use set forth in the Act.  Thus, the IWCC had to determine permanency on a case-by-case basis with little guidance from the legislature.

To comply with the legislative directive, the IWCC reviewed over 20 awards of compensation from the Illinois Supreme Court and developed a protocol as well as a list of factors for adjudicating permanency.  The IWCC first determines what the injured worker could do before the injury that can no longer be done or must be done in a limited manner or differently because of the injury.  Second, the IWCC determines the importance to the injured worker of the function that has been lost — how often was that movement performed, and can it be performed any longer — and given the skills, training, and age — how significant will the loss of that use be to the injured worker’s life in the future.  The list of factors compiled to determine permanency may be set forth as follows:

• occupation
• age
• inability to engage in certain kinds of work or activities
• skill, training
• pain
• stiffness
• weakness
• spasms
• limitations of motion
• tenderness
• atrophy
• lack of coordination
• soreness
• diminished reflexes, and
• dizziness and other related criteria.

The IWCC must rely on its expertise developed over the years to weigh these factors and determine the nature and extent of an injury.  It has done so, issuing written decisions since 1981 that include permanency awards which practitioners consult to assess exposure and settlement ranges for like injuries.

In summary, the IWCC will consider a myriad of factors in determining the nature and extent of the injury, and award permanency accordingly even if the injured worker is released to return to work without restrictions once found at MMI.  If you have any questions regarding permanency awards, please reach out to our attorneys here.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.