New Case Law: Mortons & Gooden

August 1, 2006

Two new decisions were recently released by the Illinois Appellate Court, Workers' Compensation Commission Division. The first was an appeal of a case decided by our own Valerie Peiler during her tenure as an arbitrator: Mortons of Chicago v. Industrial Comm'n (Jane Rooch), No. 1-05-2461WC (1st District, July 12, 2006).

Facts: This is one of those cases that started out well, but definitely did not improve with continued appeal. The petitioner was a restaurant server who injured her knee on the job. After arthroscopic surgery, her physician determined that she could not return to waiting tables. Her earnings (apparently true) the year before the accident (1998) were $44,400.

According to the Court opinion, there were two other servers who had the same level of experience and seniority as the petitioner. They earned $44,300 and $43,700 in 1998. The petitioner had previously earned a bachelors degree in paralegal studies, but had never worked as a paralegal because she made more waiting tables. In 2000, she secured a paralegal job at $34,000. In 2000, the two co-workers at Mortons were earning $50,000 and $54,500.

In reality, there was evidence submitted of other co-workers with approximately the same seniority and assignments (since the assignments also dictated wages - i.e. they would earn more on weekend nights) as petitioner had. The other servers omitted by both the Commission and the courts actually earned less in those following years than they had in 1998 - so two servers earned more but the others earned less. On that basis, Arbitrator Peiler found petitioner had not proved her case by a preponderance of the evidence, since her wages could have gone up or down. Ergo, no wage differential benefits were awarded.

The Commission majority (Rink and Kinnaman) reversed, awarding a differential based on the incremental increase in the two selected co-workers wages between 1998 and 2000. Commissioner DeMunno filed a special concurrence, stating that Commissioner Stevenson had dissented at the time of oral argument, but had then left the Commission before the decision was written. A corrected decision by Rink and Kinnaman (same special concurrence) two months later corrected the calculation of the benefits and increased them by about $37.00 to $227.00 per week. Another corrected decision was issued five months after that, but did not change the rates. This was signed by Commissioner Rink, with the same special concurrence by DeMunno and a new special concurrence by Commissioner Pigott, who had since replaced Kinnaman.

Decision: On appeal, there were three issues.

1. The respondent argued that the petitioner had failed to prove her earnings capacity after the injury. The Court agreed with the Commission, finding that the co-workers wages were valid evidence of earnings capacity and also criticizing the respondents apparent numerous mathematical errors in its proposed calculation of the benefits. However, the Court neglected to even mention the other co-workers whose earnings decreased after the petitioner's accident.

2. The respondent argued that the wage differential decision was invalid, because the final decision was not signed by a majority of the Commissioners who heard the case at oral argument. The Court held that since a majority of those Commissioners signed the decision (i.e., the second Commission decision) that set the final benefit rate, the final Commission decision (i.e., the third Commission decision) was valid.

3. The petitioner also raised the issue of the sufficiency of the bond, based on the Cook County court form that did not include language stating that if the review were not successfully prosecuted, Mortons would be required to pay the award and the costs of the proceedings. The Court held that this language already appears in the statute and is therefore implicitly included as part of any bond in workers' compensation appeals. In a footnote, the Court suggested that Cook County should update its form, which still referred to a writ of certiorari.

Analysis: Apparently, the respondents appeal strategy here was to try to get the arbitrators original decision reinstated. The results demonstrate (yet again) the paramount importance of winning at the Commission level, as this sets the standard for subsequent appeals. Here, the Commission overruled the weight assigned by the arbitrator to the varying evidence, but it also apparently overlooked a significant portion of the evidence itself. This is perhaps an instance where a results-oriented Commission reached its decision notwithstanding a large body of evidence seemingly to the contrary. As I believe Val and Frank have commented in the past, the increasing irrelevancy of the arbitrators decisions calls into question either the continued necessity of even having arbitrators or else the necessity of having an appeal to the Commission, where the Commissioners are one step removed from being able to make legitimate credibility determinations. Such determinations would be best made by the trier, who is able to observe the witnesses firsthand. This case also reminds all of us of the archaic circuit court bond requirement that should be repealed. Although these issues remain unresolved, they need to be considered in any litigation plan in the near future.

The second case is Gooden v. Industrial Comm'n, No. 1-05-3756WC (1st District, July 12, 2006). (The court opinion can be accessed here.)

Facts: This case is a good defense result upheld by Commission, circuit court and appellate court, no small feat these days. The respondent held company picnic and employees were given the option of attending the picnic or working their regular jobs that day. Either way, they were paid full wages for the day. There was no evidence of any negative consequences for choosing not to attend the picnic. The injury allegedly occurred while the petitioner was playing sports at the picnic.

Decision: The court held that this situation was exactly that envisioned by Section 11s exception to coverage for recreational activities. Therefore, the claim was dismissed.

Analysis: This is a good example of effective risk prevention planning (as far as the company picnic policy) and also was well handled as far as producing sufficient evidence at trial to establish the defense. That's one for the defense.