October 02, 2012

Employer Cannot Appeal Commission Order Sending Case Base to Arbitrator

October 02, 2012

Supreme Catering vs. The Illinois Workers’ Compensation Commission No. 2012 IL App. (1st 111220 WC)

Renee Diaz filed an Application claiming work-related injuries while operating a catering truck.  Supreme did not dispute the injury, but claimed that Diaz was an independent contractor.  The arbitrator found that he failed to prove an employer/employee relationship and denied the claim.  The Commission reversed, finding Diaz an employee and ordered Supreme to pay TTD and medical expenses.  The Commission also stated that it considered “the nature and extent of the injury,” but reached no decision on that issue, and remanded the case to the arbitrator to determine Diaz’ “need for vocational rehabilitation and/or maintenance,” medical treatment, and the nature and extent of his disability.  Apparently, Supreme’s Section 12 evaluator recommended an FCE and indicated that it was likely Diaz would need rehabilitation before returning to work.

Supreme appealed.  The Circuit Court concluded that the Commission did not sufficiently explain the grounds for reversing the arbitrator, and remanded the case to the Commission.  The Commission thereupon issued a second decision explaining the basis for its ruling.  Supreme again appealed, and this time the Circuit Court affirmed.

The appellate court refused to reach the merits of Supreme’s appeal, holding that only final determinations of the Commission are appealable.  For the court, the question was whether administrative involvement in the case had been terminated, versus whether the Commission had ordered further administrative proceedings.  Here, there was no determination of the nature and extent of Ruiz’ injuries.  The Commission awarded only temporary benefits and remanded for further proceedings, including a determination of whether he was entitled to vocational rehabilitation.

The Commission decision cited Thomas vs. Industrial Commission, where the Supreme Court held that an arbitrator may determine the claimant’s temporary disability with permanent disability being determined upon remand, and that such a decision did not divest either the Commission or the courts of jurisdiction to consider the temporary award.  However, the appellate court in Supreme Catering stated that neither Thomas, nor Section 19(b) of the Act permits carte blanche judicial review of non-final decisions.   The court held that the remand for a determination of vocational rehabilitation benefits is interlocutory and, therefore, non-appealable.

According to the court, if the Commission had determined all issues regarding the payment of compensation “up to the date of hearing,” such that the decision would be “conclusive as to all other questions except the nature and extent of said disability,” the Commission’s decision would have been reviewable.  But since the Commission also remanded to the arbitrator for a determination of a vocational rehabilitation plan, the decision was interlocutory rather than final and appealable.  The court cited an earlier Supreme Court case, International Paper, stating, “If judicial review is allowed before this determination is made, the Courts will invariably be faced with piecemeal review of such cases, as litigants dissatisfied with the individualized rehabilitation program repeat the entire administrative and judicial review process.”

Therefore, even though Commission decisions contain language reciting that remand will take place only after the time of completion of any judicial proceedings, if a Request for Summons in the Circuit Court has been filed, where the Commission enters a generalized order of vocational rehabilitation and remands the case to the arbitrator for the development of a specific plan, the decision of the Commission will not be considered final because administrative involvement in the case has not been completed.


In a long line of cases the courts have developed the concept that Section 19(b) decisions and proceedings on petitions for immediate hearing, or cases which are the equivalent of such proceedings, can be appealed only if all issues except nature and extent have been decided.  In Supreme Catering, this was not the case – the Commission had remanded the case to the arbitrator for determining a vocational rehabilitation plan.  Thus, an employer such as Supreme Catering, faced with a case where there is an evident good faith defense on the issue of employment, must await the outcome of a second trial before it will be permitted to challenge the substantive issue in the courts.

It is difficult to explain to one’s client that an appeals court has refused to address the substantive issue in the case.  If the court had affirmed the finding of employment, the employer would at least have had the satisfaction of knowing the issue had been presented and decided.  With the court declining jurisdiction, the employment issue may never be reached.  Judicial economy is a great concept, but in this case the accident date was May, 2005.  If Supreme Catering wishes to have its ultimate day in court on the employment issue, it will not see the end of the case until the tenth anniversary of the accident, if then.