News

March 01, 2007

Rick Gastineau, petitioner, whose regular job involved the laying of commercial flooring, alleged that he had an accidental injury for which he gave the statutory notice while employed by S & H Floor Covering, Inc.  His claim was denied by the arbitrator who concluded that something happened to claimant after he left work on August 2, 2002 and found further that the claimant did not provide proper notice of the alleged accident within the 45 days after the onset of his alleged injury.  The Commission reversed and found for the claimant and the Commission position was upheld by the appellate court.  However, the court went out of its way to speak favorably of a policy wherein the arbitrator’s decision would be given “an extra degree of scrutiny” when the witness credibility is the basis of the arbitrator’s decision.

The claimant testified that he left work for his employer on August 2, 2002.  He then took a leave of absence from his employer and drove to Wichita, Kansas to install flooring in his nephew’s girlfriend’s home.   He further testified that upon arrival in Wichita, he was barely able to walk because of pain in his right knee and was not able to begin installation for a week and never finished the installation because of knee pain.  He did not receive medical attention while in Wichita.  The employer provided testimony that on his last day at work, the claimant had no complaints and that he may have injured his knee when working as a floor installer in Wichita.

With reference to notice, the claimant’s wife spoke to the employer’s project manager to inform him that the claimant was injured and further notified the employer’s office that her husband was having knee problems that were going to require surgery.

Obviously, it is not unusual for the claimant and the employer to have disputes regarding accident and notice.  The fact that the arbitrator denied the claim and was subsequently reversed by the Commission is also not a novel situation.  As you know from our past newsletters, we have called attention to the fact that when this happens, the Commission decision is usually affirmed on the basis that the Commission is the decider of the facts.  The court has acknowledged the fact that it has heard frequent arguments complaining that the arbitrator’s decision should be controlling as the arbitrator has actually seen the witnesses, heard their testimony and made a judgment regarding witness credibility.  This has now led to a possible change in the reviewing court’s evaluation of the arbitrator’s decision.

The arbitrator’s decision as to accident is described by the court as follows:

Based on the foregoing evidence and his visual assessment of claimant’s credibility, the arbitrator found claimant did not suffer injuries arising out of and in the course of his employment.  The arbitrator noted claimant was able to perform all of his job duties up to his last day of employment with employer.  The arbitrator stated something happened to claimant after he left work on August 2, 2002, that dramatically changed his condition, preventing him for being able to walk, drive, or work.  In addition, the arbitrator found claimant did not provide proper notice to employer of his alleged accident.  Claimant’s September 20, 2002, phone call to employer occurred more than 45 days after the onset of his alleged injury.

With reference to notice, the arbitrator found that claimant did not provide proper notice to the employer of his alleged accident.  Claimant’s phone call to the employer occurred more than 45 days after the onset of his alleged injury.

The majority of the Commission found that the claimant did sustain accidental injuries in the form of a cumulative knee condition arising out of and in the course of his employment as a floor installer.  It pointed out that the treating physician opined that claimant’s work more than likely aggravated his degenerative condition.

With reference to notice, the majority of the Commission found that claimant provided proper notice 49 days after the injury occurred and that the employer suffered no prejudice in this delay, particularly in light of the communication from the claimant’s wife and the employer’s knowledge that claimant’s knee condition had worsened to the point that he could no longer return to work.

The appellate court affirmed the Commission on the basis that the decision was not against the manifest weight of the evidence.  Such a ruling would be consistent with most of the recent prior cases.  However, the court did provide a basis for citing the 1988 Cook case wherein the arbitrator’s finding was given more credence when the credibility of the witnesses provides the basis for the arbitrator’s decision:

In a long line of cases, appellate courts have held that the Commission has original jurisdiction; it may both consider evidence that was presented to its fact-finding agent, the arbitrator, and consider evidence that is first presented to the Commission.  The law is similarly well established that the Commission has authority to determine all unsettled questions and is not bound by the arbitrator’s findings, even when it merely reviews the evidence presented at arbitration.

In cases where the Commission has rejected the arbitrator’s factual findings without receiving any new evidence, it is the function of this court on review to examine the entire record and weigh the evidence to determine whether the factual findings of the Industrial Commission were against the manifest weight of the evidence.  While recognizing that the Commission is in no way bound by an arbitrator’s decision, we note that the arbitrator’s decision is not without legal effect.  Further, we note that in performing its role as reviewer of the record, the Commission is at a practical disadvantage as compared to the arbitrator.  The arbitrator, having heard the live testimony, is actually in a better position to evaluate that evidence.

Accordingly, in cases where the Commission has rejected the arbitrator’s factual finding without receiving any new evidence, we apply an extra degree of scrutiny to the record in determining whether there is sufficient support for the Commission’s decision.

Although not appropriate in this case, we will consider giving credence to Cook, which provided for “an extra degree of scrutiny” to be applied to the record in determining whether there is sufficient support for the Commission’s decision, especially when the Commission makes credibility determinations regardless of the arbitrator’s findings.

Editor’s Note:

The appellate court has opened the door to the future applicability of the Cookdecision.  The Cook opinion could be utilized to restrain the Commission’s tendency to ignore the arbitrator’s findings when the credibility of witness testimony is the basis for the decision.  Your Editor’s first reaction would be to question why the court did not apply the Cook opinion to this case because arbitrator’s finding as to the credibility of the witness testimony should have led to a reversal of the Commission.  One can only assume that the new standard will apply only to decisions when the parties have had the opportunity to argue the issue before the Commission.  Any party who has seen the Commission decisions misquote or summarily discount the arbitrator’s findings would be heartened by this present expression of the reference to the Cook opinion in this present S & H Floor Covering case.

Preparation of proposed findings should also emphasize the issue of credibility.  References should be made to the relationship of the witness to the parties; the appearance of veracity and the absence or presence of any bias on the part of the witness.

S & H Floor Covering v. Workers’ Compensation Commission, No. 4-04-0245WC, decided February 16, 2007

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105