Dual Recovery in Catastrophic Injury Cases: Recent Appellate Decision Expands Liability for Illinois Respondents

September 2024

Ashley L. Krenz

In the case of The American Coal Co. v. Illinois Workers’ Compensation, the Fifth District Appellate Court of Illinois determined that claimants may recover under both sections 8(e)(18) and 8(d)(2) of the Illinois Workers' Compensation Act in catastrophic accidents. This ruling could lead to increased liability for respondents when recovery is awarded under both sections.

The petitioner, a longwall shear operator, was severely injured in a work accident in which he was crushed between a 20-ton piece of steel equipment and a coal block, causing him to lose consciousness. He was airlifted to the hospital and underwent multiple surgeries, including a colon resection requiring a temporary colostomy bag. The petitioner also permanently lost his vision due to optic nerve damage. After weeks in rehabilitation, he continued to suffer from various health issues, including severe pain in his lumbar spine, left hip, and a permanent lack of abdominal muscle control due to the extensive surgeries.

The petitioner testified about his ongoing pain, which he described as life-ruining, and his reliance on hydrocodone. He also suffered from psychological issues, including anxiety, depression, and PTSD, as well as nightmares of the incident. His injuries also led to social isolation, due to his fear of losing control of his bowel movements, a side effect of the colostomy reversal surgery. The petitioner stated that his injuries ended his career, largely due to his blindness and the extensive damage to his abdomen.

The Arbitrator found that the petitioner’s injuries arose from his employment and awarded:

1. Statutory permanent total disability benefits of $1,008.40 per week for life, for 100% loss of use of each eye, pursuant to section 8(e)(18).
2. Permanent partial disability benefits of $775.18 per week for 21 weeks, pursuant to section 8(d)(2) of the Act, for five transverse fractures to claimant’s lumbar spine at L1, L2, L3, L4, and L5, and a spinous process fracture at L4.
3. Additional permanent partial disability benefits of $775.18 per week for 300 weeks representing 60% loss of claimant’s body as a whole, pursuant to section 8(d)(2) of the Act, for “non-scheduled” injuries to claimant’s spine, hip, abdomen, and head (psychological issues).

The Arbitrator reasoned that without additional compensation, the petitioner would be uncompensated for other injuries that could further impact his earning capacity. The Arbitrator also stated that awarding benefits under both sections 8(d)(2) and 8(e)(18) did not result in double recovery, referencing the Illinois Supreme Court decision in Beelman Trucking v. Illinois Workers’ Compensation Comm’n.

The respondent appealed the Arbitrator’s decision, and both the Illinois Workers’ Compensation Commission and the Circuit Court respectively affirmed and confirmed. The respondent then appealed to the Fifth District Appellate Court of Illinois, arguing that the Commission erred in awarding PPD benefits for non-scheduled body parts under section 8(d)(2) in addition to PTD benefits under section 8(e)(18). The respondent contended that section 8(e)(18) did not permit additional compensation for non-scheduled losses, arguing that the legislature intended to limit compensation to scheduled body parts only. However, the Appellate Court rejected this argument, citing the Illinois Supreme Court’s ruling in Beelman Trucking, which allowed recovery for additional losses resulting in “increased disability.” The Appellate Court relied on the statutory language of the Illinois Workers' Compensation Act and the intent of the legislature, emphasizing that the Act is remedial and should be liberally construed to provide financial protection for injured workers. The Appellate Court opined that while section 8(e)(18) does not explicitly provide for non-scheduled losses, the rationale from prior cases supports compensation for such losses when they result in actual increased disability:

“The plain reading of section 8(d)(2) provides compensation when the employee sustains serious and permanent injuries ‘covered by the aforesaid paragraphs (c) and (e) in addition thereto other injuries,’ which partially incapacitated him from pursuing the duties of his usual and customary line of employment and resulted in an impairment of earning capacity…Here, the award under section 8(e)(18) is statutorily authorized, provided claimant lost vision in both eyes…[t]he loss of use of both of claimant’s eyes immediately entitled him to compensation under section 8(e)(18) of the Act. Claimant also suffered additional serious and permanent injuries pursuant to section 8(d)(2) from the same accident that partially incapacitated him for his underground mining duties for employer…Despite the fact that section 8(e)(18) does not explicitly provide for recovery involving the loss of non-scheduled body parts…denying compensation beyond the two members compensable under section 8(e)(18) would leave additional losses uncompensated, where the additional losses above and beyond the specific case of loss of two members increased claimant’s actual disability and further impaired claimant’s earning capacity. As such, in the instant case, we hold that the Act permits an employee to recover for the loss of two members under section 8(e)(18), as well as to recover additional non-scheduled losses under section 8(d)(2). As the Commission correctly noted, the statutory permanent total disability in this case falls far short of addressing the full scope of claimant’s injuries from this accident. To conclude otherwise would force this court to ignore the purpose of the Act, which is to provide “a flow of benefits to compensate for lost wages” and to compensate workers for the loss of industrial earning capacity.”

The decision in The American Coal Co. has affirmed and has broadened prior Illinois Supreme Court decisions allowing for the petitioner to recover under multiple sections of the Illinois Workers’ Compensation Act. This decision increases potentially the respondent’s liability in cases in which the petitioner can recover for injuries that incapacitate the petitioner and his earning capacity, resulting in actual increased disability. However, it appears that this will be narrowly applied to catastrophic type injuries in which there is an automatic 8(e)(18) loss coupled with non-scheduled losses. Nevertheless, it is important to be aware that there may be instances where the petitioner is able to recover under both sections 8(e)(18) and 8(d)(2) of Illinois Workers’ Compensation Act. However, if the respondent can show there is no actual increase in disability for an 8(d)(2) nonscheduled injury, it may be able to prevent the petitioner’s recovery under that section.

If you have a claim involving similar issues or have any questions regarding this decision, contact your BCM Law, P.C. attorney for guidance.