May 10, 2011

Multiple Injuries to the Same Body Part Merit One Disability Award

May 10, 2011

The City of Chicago vs. The Illinois Workers’ Compensation Commission, et al. and Robert Baumgardner vs. Illinois Workers’ Compensation Commission, et al. No. No. 1-09-2320WC and No. 1-10-0727WC

In two decisions issued on the same day, the appellate court has held that multiple injuries involving the same part of the body merit only one permanency award.  Both cases involved Compensation Commission awards for wage loss under Section 8(d)1 of the Act.  However, in one case the Commission awarded both Section 8(d)2 and wage loss benefits, whereas in the second, the Commission rejected a claim that the claimant was entitled to a scheduled award under 8(e)12 and one for wage loss benefits as well.

The City of Chicago vs. The Illinois Workers’ Compensation Commission, et al. No. 1-09-2320WC

Thomas O’Rourke injured his low back in August, 2002 while working for the city of Chicago.  He underwent a microdiscectomy, participated in postoperative therapy and received two steroid injections.  He underwent a second surgery in March, 2003.  An FCE performed June 27, 2003 found him able to perform at the medium work level.  After work hardening, he was released to full duty effective July 10, 2003.

While the first case was pending, O’Rourke returned to work for the same employer and was reinjured in May, 2004.  After this occurrence, he received a course of epidural injections and underwent an FCE which found him able to perform at the medium work level.  He remained off work until May, 2005 when he returned to another position earning far less than his previous job.

The cases were consolidated and heard together, after which the arbitrator issued separate decisions for each claim.  For the August, 2002 injury, the Arbitrator awarded 20% loss of the person pursuant to Section 8(d)2; for the May, 2004 injury he awarded a wage loss pursuant to Section 8(d)1 of the Act.  The Commission affirmed and adopted this decision.

On appeal, the employer argued that there was no way to separate or apportion O’Rourke’s current condition of ill being into two separate claims.  The employer argued that the evidence did not establish that each accident caused separate and distinct conditions of ill being, only that O’Rourke’s general complaints were similar after both occurrences. Also, O’Rourke was functioning at the same work capacity level, medium, after the second accident, the same as after the first.  Further, the treatment O’Rourke received after both accidents was in the same region of the lumbar spine.  Thus, according to the employer, O’Rourke had only one claim for permanency, either wage loss under Section 8(d)1 or disability to the person under Section 8(d)2 of the Act, but not both.

The appellate court cited a previous decision, Freeman United Coal Mining Company vs. Industrial Commission, where Section 8(d) was interpreted:

“Under the plain language of Section 8(d), loss of earning capacity is addressed in both paragraphs 1 and 2.  However, loss of earning capacity comes into play in paragraph 2, only when an employee has an impairment of earning capacity and elects to be compensated under paragraph 2 e.g., chooses a percentage-of-the person-as-a -whole award.  The language is clear:  ‘or having resulted in an impairment of earning capacity, the employee elects to waive his right to recover under ***subparagraph 1.’ (Emphasis added.)…thus election demonstrates that an employee cannot recover both a wage-differential and percentage-of-the-person-as-a-whole award, but must choose between the two.  There is no language in the statute that allows doubling or dual compensation under both provisions.”

The employer maintained that under the unique facts of the case that there was only one condition of ill-being, the numbness and pain in O’Rourke’s legs resulting from his low back injuries.  That single condition of ill being was a single disability, either a functional disability as considered under Section 8(d)2 or a loss of earning capacity as contemplated by Section 8(d)1.

The court considered O’Rourke’s case one of first impression.  The court pointed out that at the time of the hearing, O’Rourke’s first injury had not resolved itself and “clearly was a factor” when he suffered the second injury.  The court considered this significant because the employer was arguing that it was not possible to determine which portions of O’Rourke’s condition of ill-being were attributable to which of the two accidents.

The court concluded that O’Rourke was not entitled to an award under both Sections 8(d)1 and 8(d)2 for the same condition of ill being, stating:

“Where a claimant has sustained two separate and distinct injuries to the same body and the claims are consolidated for hearing and decision, unless there is some evidence…that would permit the Commission to delineate and apportion the nature and extent of permanency attributable to each accident, it is proper for the  Commission…to determine the nature and extent of claimant’s permanent disability as of the date of the hearing.” (emphasis added)

The court held that the evidence did not permit a delineation of a separate condition of ill-being attributable to the accident but rather only one.  O’Rourke argued that had his claims have been adjudicated separately, he would have received two separate awards.  The court considered this proposition speculative: he returned to work after the first accident and performed full duties, an“indication that his first injury may have completely resolved itself prior to the second injury,” and thus there may have been no permanent injury.  The court reversed the Section 8(d)2 award and found that O’Rourke was entitled to a wage differential award only.

Justice Stewart dissented, stating he would affirm based on the ‘manifest weight of the evidence’ standard of review.  He agreed that a claimant with multiple injuries to the same body part resulting in one condition of ill being may recover only for one award for permanent partial disability.  However, whether a claimant has sustained separate compensable injuries is a factual determination to be made by the Commission.  Thus, he would have affirmed the Commission because allowing a separate PPD award for each accident was not against the manifest weight of the evidence.  (It should be noted that the majority rejected this line of reasoning, stating that the evidence presented established only that O’Rourke had suffered either a physical impairment or an impairment of earning capacity after the second accident.)

Robert Baumgardner vs. Illinois Workers’ Compensation Commission, et al. No. 1-10-0727WC

At the same time the court issued this decision, it also issued a decision involving Robert Baumgardner who sustained three injuries in April, 1996, May, 1998, and August, 1998.  As in O’Rourke, Baumgardner consolidated his three Applications for the arbitration hearing.  Following the first accident, Baumgardner underwent surgery for a torn lateral meniscus in the right knee.  Following an intervening incident at home, Baumgardner was injured at work in April, 1997, after which he was off work for three weeks.  In July, 1997, his surgeon stated that the December, 1996 and April, 1997 injuries exacerbated the initial injury sustained in April, 1996 and that the condition of the right knee was permanent.

Baumgardner returned to full duty effective May, 1997 but was advised not work on inclines or  in ditches.  His surgeon stated his prognosis was for steadily worsening osteoarthritis which might require future surgery. Despite these admonitions, Baumgardner resumed his previous duties and reinjured the right knee in May, 1998.  He was off work for another seven weeks,  and then sustained an injury to the right foot on August 7, 1998.  He was off work for approximately six weeks after this accident.  In December, 1998, he was reassigned as a result of his surgeon’s work restrictions resulting in a reduction of his hourly earnings.

Baumgardner testified that after the May, 1998 injury, he continued to experience pain and swelling in the right knee and that he underwent a total knee replacement in July, 2002.  As of the date of the arbitration hearing, he was performing light-duty work.  He took medication and used a cane if he was on his feet and moving about for long periods of time.

The arbitrator awarded Baumgardner wage loss benefits pursuant to Section 8(d)1.  The Commission affirmed the decision, rejecting the argument that Baumgardner was entitled to a separate, scheduled loss under Section 8(e)12 for the April, 1996  injury.  The Commission held that the nature and extent of permanent disability is to be determined at the time of arbitration and not based on a condition existing many years prior.  The Commission also found the condition of the right knee causally related to the second accident in May, 1998 and thus a wage differential award was appropriate.  Last, the Commission found that Baumgardner failed to present sufficient evidence with regard to his condition after the August, 1998 accident and thus no PPD benefits were due for that injury.

On appeal, Baumgardner argued that he was entitled to a scheduled PPD award under Section 8(e)12 for the April, 1996 right knee injury.  He contended that the Commission erred in finding that his condition of ill-being resulting from April, 1996 accident had to be evaluated as of the time of the arbitration hearing.  The appellate court rejected this argument, stating:

“The Act clearly contemplates a single determination as to the permanency of a claimant’s condition as a result of an employment accident.  Section 8(d)1 of the Act provides that the Commission may award a claimant wage-differential benefits ‘except in cases compensated under the specific schedule set forth in paragraph (e) of this Section.’  In addition, Section 8(e) states, in relevant part, that a claimant may be according to the scheduled award, ‘but shall not receive any compensation under any other provisions of this Act.’  In considering the application of these two provisions, the supreme court has held that compensation may be proper under either of these Sections but not both at once.”

The court considered it procedurally and practically proper for the Commission to consider all of the evidence presented to determine the nature and extent of permanent disability as of the date of the hearing, despite the fact that there were two separate and distinct injuries to the same body part.  The court noted that the claims were consolidated and continued over several years and that the Commission decision was issued more than 10 years after the second injury.

Baumgardner argued, as did O’Rourke, that he would have received a Section 8(e)12 award had he proceeded to hearing on that claim prior to the May, 1998 injury.  The court stated that this did not require a separate grant of a scheduled award.  The fundamental issues before the Commission were the nature and extent of injury and the appropriate type and amount of compensation to be awarded.  The court held that the Commission properly evaluated the evidence as to Baumgardner’s overall condition and entered a single award encompassing the full extent of disability resulting from both the April, 1996 and May, 1998 injuries.

Justice Stewart issued a special concurrence wherein he agreed that whether a claimant asserting separate claims for injuries to the same body part in a consolidated hearing is entitled to separate PPD awards is a factual determination to be made by the Commission.  In this case, the Commission made a specific finding that Baumgardner’s condition of ill-being related solely to the second accident.  Justice Stewart pointed out that if the Commission made a finding that a claimant proved separate compensable injuries from separate accidents that such an award should also be affirmed.  The concurrence disagreed with the legal conclusion that multiple injuries to the same body part must result in a single award and argued that the Commission must consider a claimant’s condition of ill-being prior to a second accident to remove any bias toward a single PPD award.

COMMENT:  The City of Chicago and Baumgardner decisions articulate a legal standard that there should be one award for permanent disability where there are multiple injuries to one body part.  The City of Chicago case is stated to be one of the first impression but a close reading of the majority holding reveals that the court reversed the Commission based on the manifest weight of the evidence.  There are certain hints contained in the decision that there was insufficient proof of O’Rourke’s disability after the first and before the second accidents.  But the court did state emphatically in both cases that the nature and extent of disability should be determined as of the date of the hearing.

Due to these decisions, the Commission may retreat from a practice it has made in the past of awarding both disability to the person or specific loss and wage loss or total permanent awards for subsequent injuries to the same body part.  Anticipating practice at the Commission regarding these types of cases, we will undoubtedly see petitioner attorneys resisting motions to consolidate and pushing cases to trial as soon as it is learned that their clients have sustained a subsequent injury to the same body part.  We will also likely see attorneys soliciting opinions from treating doctors as to the degree of disability after the first and before a second accident.  It will be the practice of Wiedner & McAuliffe to move to consolidate all subsequent injury claims, whether injuries to the same body parts or not, and certainly to resist premature trials whose intention is solely to gain a specific loss or disability to the person award before a second injury to the same body part stabilizes.