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Processing Workers' Compensation Claims in Illinois

Published online by Cambridge University Press:  20 November 2018

Lois R. Sincere
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Abstract

The substitution of no-fault compensation for recoveries at tort law in cases of work-related injuries would, according to turn-of-the-century reformers, minimize resort to adjudication. Charges of unanticipated controversy and excessive litigation under state compensation statutes, however, have been raised periodically for several decades.

This article presents the findings of current research into the prevalence of disputes, attorney involvement, and court suits under workers' compensation legislation in Illinois, the locale of specific criticism. The author offers an explanation of the obstacles to discovering the incidence of work-related injuries, along with a description of the handling of both undisputed and disputed claims. By following the itinerary of a sample of 6, 652 compensation claims filed during 1978 through several stages of administrative and judicial processing, she then examines the persistence of these primarily disputed claims from initiation to resolution. Her major finding is that under workers' compensation legislation in Illinois, litigation, whether defined as attorney involvement or court action, may not be as excessive as charged. The research uncovers the need for more precise standards for defining a surfeit of controversy and offers suggestions for meeting this need.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 7 , Issue 4 , Fall 1982 , pp. 1073 - 1107
Copyright
Copyright © American Bar Foundation, 1982 

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References

1 The history of legislative action can be found in Walter F. Dodd, Administration of Workmen's Compensation, chs. 2 & 3 (New York: Commonwealth Fund, 1936); Roy Lubove, The Struggle for Social Security, 1900–1935, ch. 3 (Cambridge: Harvard University Press, 1968). By 1920 all but a few states had some form of remedial legislation; today all do. For a discussion of how negligence doctrine made it difficult to recover damages, see Dodd, supra, at 3–11. Evidence from German statistics that injured workers had valid tort claims in only a minority of cases is reported by 1 Arthur Larson, The Law of Workmen's Compensation 27 (New York: Matthew Bender, 1978).Google Scholar

2 E.g., the New York Employers' Liability Commission reported in 1910 that “there will be no questions left to litigate save, first, is the injured workman within the act, second, what shall be the compensation for his injury within the limits of the act.” Dodd, supra note 1, at 53. Reduction of litigation was only one of several objectives of compensation legislation, but the uncertainty and cost associated with tort recoveries may have convinced some employers that no-fault compensation combined with insurance was preferable to the vagaries and occasional excesses of jury awards. For some evidence of a growing percentage of trial court victories by injured workers prior to the change in law, see Lawrence M. Friedman, A History of American Law 423 (New York: Simon & Schuster, 1973); Posner, Richard A., A Theory of Negligence, 1 J. Legal Stud. 29, 92 (1972).Google Scholar

3 For a historical study of California's Industrial Accident Commission, which describes the expectation of minimal administrative intervention and rational cooperation among interested parties, see Philippe Nonet, Administrative Justice: Advocacy and Change in a Government Agency 42–45 (New York: Russell Sage Foundation, 1969). An early advocate of compensation legislation advised that “with a proper administrative system, counsel for claimants will rarely be needed or employed.” E. H. Downey, Workmen's Compensation 79 n.7 (New York: Macmillan Co., 1924).Google Scholar

4 Alfred F. Conard & Robert I. Mehr, Costs of Administering Reparation for Work Injuries in Illinois 46–48 (Urbana-Champaign: University of Illinois, College of Law, 1952); Linda Darling-Hammond & Thomas J. Kneisner, The Law and Economics of Workers' Compensation 32–37 (Santa Monica, Cal.: Rand Corp., Institute for Civil Justice, 1980); Herman Miles Somers & Anne Ramsay Somers, Workmen's Compensation 178–79 (New York: John Wiley & Sons, 1954); U.S., National Commission on State Workmen's Compensation Laws, The Report of the National Commission on State Workmen's Compensation Laws 119 (Washington, D.C.: Government Printing Office, 1972) [hereinafter referred to as Report]. Somers & Somers (id. at 179) commented: “The litigious atmosphere causes delay in settling claims. Delay is itself a provocative cause of more litigation.” Delay, expense, and excessive controversy are typically blamed on attorney involvment more than are the lack of certainty and fairness of payment, but the possibility that lawyers ensure more adequate benefits has not been completely overlooked. See, e.g., id. at 188; Conard & Mehr, supra, at 54; and U.S., National Commission on State Workmen's Compensation Laws, Compendium on Workmen's Compensation 212 (Washington, D.C.: Government Printing Office, 1973) [hereinafter referred to as Compendium].Google Scholar

5 Nonet, supra note 3; Stevenson, Douglas F., The Illinois Workmen's Compensation System: A Description and Critique, 27 DePaul L. Rev. 675 (1978). If early compensation proponents anticipated a minimal amount of legal controversy, their enthusiasm for a simple and speedy remedy for injured workers obscured the extent of the need for at least statutory interpretation. “While the elements of compensable harm are simple—the existence of an employment relation, injury, and a causal connection between the employment and the injury—their application was found not to be.”Brodie, Abner, The Adequacy of Workmen's Compensation as Social Insurance: A Review of Developments and Proposals, 1963 Wis. L. Rev. 57, 63. One early plea for statutory clarity to avert litigation was made, however, by Bohlen, Francis H., A Problem in the Drafting of Workmen's Compensation Acts, 25 Harv. L. Rev. 328 (1912).Google Scholar

6 I prefer that the term “litigation” refer only to action in court in contrast to usage elsewhere that calls any attorney involvement “litigation.” See, e.g., Stevenson, supra note 5, who uses the term in the broader sense to refer to contested claims, not court suits.Google Scholar

7 Stevenson (id.) attributes increasing litigation to self-serving provocation by plaintiffs' attorneys, encouraged (especially in cases of permanent partial disability) by the generous scale of benefits on which contingent fees are based. His evidence is the seemingly dramatic increase in the number of disputed claims filed in Illinois between 1950 and 1977:Google Scholar

Id. at 678 n.14.Google Scholar

8 “Because of the paucity of reliable statistics on the types of litigation that account for the growth, various groups for their own purposes have made hard-to-verify claims about the increase in litigation.”Andrews, Lori B., Review Article: Suing as a First Resort: A Review of Marks's The Suing of America and Lieberman's The Litigious Society, 1981 A.B.F. Res. J. 851, 853. Concern about the unanticipated volume of compensation disputes has been compounded by uncertainty about its cause. Some have attributed growing attorney involvement in compensation disputes to a general tendency toward litigiousness in American society. See Jethro K. Lieberman, The Litigious Society (New York: Basic Books, 1981). Some explanations have centered on specific types of issues, particularly the extent of disability. See, e.g., Compendium, supra note 4, at 189; Conard & Mehr, supra note 4, at 52; Somers & Somers, supra note 4, at 183. Employees' lack of knowledge about their legal rights has been another recurring theme. See, e.g., Lack of WC Knowledge Seen as Key to Increased Litigation, Nat'l Underwriter (Property & Casualty Ed.), 24 July 1981, at 22; Nonet, supra note 3, at 56.Google Scholar

9 Berkowitz reported on the handling of contested and uncontested compensation claims state by state, relying primarily on self-reported information. Monroe Berkowitz, The Processing of Workmen's Compensation Cases, U.S., Department of Labor, Bureau of Labor Standards (Washington, D.C.: Government Printing Office, 1967). The meager systematic data available generally focus on narrow issues such as the cost or promptness of payment rather than on dispositions. Conard & Mehr, supra note 4; Cooper & Co., Promptness of Payment in Workers' Compensation, in 3 Research Report of the Interdepartmental Workers' Compensation Task Force 63 (Washington, D.C.: Department of Labor, 1979).Google Scholar

10 Ill. Rev. Stat. ch. 48, §§ 138.1–.30, 172.36–.62 (1981). With the passage of no-fault compensation legislation, responsibility for dispute resolution was shifted in most states from courts to boards or commissions. These administrative agencies have been considered superior to courts for performing the kinds of tasks needed to implement legislation—surveillance, investigation, statistical compilation, and policy initiation. See Downey, supra note 3, ch. 4; Lubove, supra note 1, at 33. Fourteen states tried court administration before 1920, but most changed to the commission form. A recent argument against the suitability of courts has been made by Bruce R. Boals, Administration of Workmen's Compensation in Tennessee, in 3 U.S., National Commission on State Workmen's Compensation Laws, Supplemental Studies for the National Commission on State Workmen's Compensation (Washington, D.C.: Government Printing Office, 1973) [hereinafter cited as Supplemental Studies].Google Scholar

11 Rules Governing Practice Before the Industrial Commission Under the Workers' Compensation and Occupational Diseases Acts, effective April 30, 1981 (pamphlet [Chicago]: Industrial Commission of Illinois, 1981). Revised almost every year since 1977 by the Commission, Rules Governing Practice requires approval, generally granted routinely, by the state legislature's Joint Committee on Administrative Rules. It also provides for some IC discretion on operational procedures.Google Scholar

12 I conducted interviews with staff members of the National Council on Compensation Insurance, the National Safety Council, the U.S. Department of Labor and its Bureau of Labor Statistics, and the Illinois Department of Labor.Google Scholar

13 All documentary materials for the state are stored in the Chicago office, and all claims for injuries in Cook County (Chicago and numerous suburbs) are processed in that office.Google Scholar

14 The Chicago headquarters in the State of Illinois Building houses the five commissioners and most of the IC staff; in addition to some 150 clerical employees, the staff includes the Commission Secretary, 15 arbitrators (out of a statewide total of 26), specialized assistants, and supervisors of various departments (data processing, filing, docketing, and insurance). The Secretary, appointed by the IC according to statute, supervises all records, files, and documents as well as hires and fires personnel in the several recordkeeping departments. Another permanent office is located in Peoria, with one arbitrator. Ten additional arbitrators are assigned to specific areas throughout the state; they hold hearings in various public buildings. I interviewed a number of commissioners, arbitrators and other staff members, clerks, and private attorneys. I also attended the Central States Annual Meeting of the International Association of Industrial Accident Boards and Commissions in June 1981 and heard formal and informal discussions by representatives of other groups such as physicians and insurance carriers.Google Scholar

15 “Downstate” refers to all areas outside Cook County. The majority of downstate disputed claims were filed in Chicago, but claims were accepted at either office for the convenience of claimants and their attorneys and sent by the IC to the appropriate area.Google Scholar

16 Docket sheets (2 per case and 300 cases per docket book) are small computer-printed forms giving the names of the employee (or other petitioner), employer, petitioner's attorney (and occasionally respondent's attorney), and dates of the accident and the filing. Space is provided for recording all legal action, i.e., monetary awards or denials and the type of resolution and by whom made, and such entries, including the date of the action and the date entered, are handwritten in the docket books by clerks. During the time I was using the docket books to gather data, no entries were made for the cases in my sample.Google Scholar

17 Case files were often in the offices of arbitrators, commissioners, or attorneys, and those from Peoria were not available until the cases were resolved. A spot check comparing docket entries with case files, which contained legal forms and documents, revealed that the docket entries were substantially, if not completely, accurate, though less informative than the case files. In those cases where 1 checked the case files because of seemingly inconsistent docket entries (e.g., a settlement concluded after a dismissal), I found that the docket entries were correct and usually indicated actual practice, not clerical errors.Google Scholar

18 Substantive changes in law would usually affect only accidents occurring after passage of new legislation; procedural changes would go into effect on a specified date. I note instances where procedural changes could have affected the findings.Google Scholar

19 There were a number of problems in using identifying numbers from the docket books to draw my sample. In theory claims are numbered sequentially at the time of filing; in practice some numbers are skipped. Sometimes docket sheets were bound out of order or had been replaced with small sheets showing awards or settlements only. Nonetheless I feel that drawing my sample by taking all cases whose numbers ended with zero yielded a sample with no significant danger of bias. Moreover, it allowed me to check missing numbers against a computer-based information system to discover whether a docket page was missing or a number had been skipped.Google Scholar

20 The last number in the 1978 docket book was 67,311, but this number overstates the universe of filed claims. Of the cases whose numbers ended with zero, 67 actual claims were missing from the docket books (and thus excluded from my sample). In addition, 102 numbers were accidentially skipped in the filing process. Assuming that these 102 unused numbers represent 1,020 cases, the universe contains about 66,300 cases.Google Scholar

21 Even though the sample for this study was drawn from cases filed in 1978, citations refer to current statutes (Ill. Rev. Stat. ch. 48, §§ 138.1–.30 (1981)—Workers' Compensation Act; and Ill. Rev. Stat. ch. 48, §§ 172.36–.62 (1981)—Occupational Diseases Act). Relevant differences will be noted. Occupational diseases are disabilities that occur “as a result of a long standing or long developing exposure to an occupational hazard” rather than as a result of an accidental injury or illness. Arthur O. Kane, Occupational Diseases, in Illinois Workers' Compensation Practice 1981, at 9–4 (Springfield: Illinois Institute for Continuing Education, 1981). Lynch has argued that attorneys are reluctant to initiate disputes in occupational disease cases. Roberta Lynch, Occupational Disease in Illinois: Who's Paying the Bills? A Study of the Workers' Compensation Program for Occupational Disease in the State of Illinois (Chicago: Chicago Area Committee on Occupational Safety & Health, n.d.). For a thorough study of occupational diseases as a national problem, see Peter S. Barth with H. Allan Hunt, Workers' Compensation and Work-related Illnesses and Diseases (Cambridge, Mass.: MIT Press, 1980).Google Scholar

22 Workers' Compensation Act, Ill. Rev. Stat. ch. 48, § 138.1 (1981).Google Scholar

23 Illinois expanded its coverage in 1975 to include domestic servants employed for at least 40 hours a week for at least 13 weeks a year. Excluded from coverage are itinerant farm workers, some volunteers, and, by explicit exclusion in 1980, real estate brokers, broker-salesmen, and salesmen paid by commission. Civil employees of the federal government are covered by federal compensation legislation, as are longshoremen/harbor workers; and railroad and maritime workers are exempted from all compensation legislation. In Illinois, suits for damages may be filed for workers injured or killed while engaged in specified construction jobs under the Structural Work Act, id. ch. 48, §§ 60–69.Google Scholar

24 Id. ch. 48, § 138.2.Google Scholar

25 Temporary total disability benefits are required only when incapacitation lasts more than 3 working days; payment begins on the fourth. If the lost worktime continues for 14 days or more, compensation is to begin on the day after the accident. Ill. Rev. Stat. ch. 48, § 138.8(b) (1981). The rate of compensation is two-thirds of the employee's average weekly wage (§ 138.8(b)(1)), computed according to statutory provisions and subject to certain legal minimums and maximums. Specified minimum weekly amounts range from $100.90 for a single worker to $124.30 for a worker with four or more children; in spite of these minimums, weekly payments may not be more than the employee's average weekly wage. § 138.8(b)(1). The maximum rate of compensation for temporary total disability is 133§ percent of the state's average weekly rate in industries covered under the Unemployment Insurance Act, § 138.8(b)(4). Cases of permanent partial disability were said by all informants to comprise the bulk of contested cases involving attorneys. Permanent partial disability benefits are payable on a weekly basis for the number of weeks corresponding to the percentage of physical impairment, i.e., loss of use of affected body members, as defined by statute, and are provided in addition to temporary total disability compensation. Benefits for partial or total loss, or loss of use, of specific body members and other types of injuries are scheduled; that is, certain body members are enumerated with the appropriate number of weeks for which compensation is to be paid for their loss or loss of use, and benefits are specified for serious and permanent disfigurement, for fractures of certain bones, and for amputation of certain parts of the body. § 138.8(c) and (e). An amendment in 1975 (§ 138.8(d)(2)) added to these provisions another referred to as “man as a whole” figured at 500 weeks. In cases of permanent partial disability which do not involve scheduled injuries, an employee is to be paid compensation equal to 66⅔ percent of the difference between the average amount he would be able to earn in the full performance of his duties in the job he had when injured and the average amount he is earning (or is able to earn) in some suitable employment for the duration of his disability, regardless of the number of his dependents. The maximum weekly benefit levels for permanent partial disability are frozen at $282.25 or 100 percent of the state's average weekly wage from January 1, 1981, through December 31, 1983; for accidents occurring in 1978, maximum benefits were $230.05 as of January 15 and $241.12 as of July 15, according to figures supplied by the IC's Legal Department. Weekly compensation for the rest of a worker's life if he cannot return to work (permanent total disability) and weekly benefits to the family in cases of death are based on 66⅔ percent of the worker's average weekly wage, subject to minimums (lower minimums than those for temporary total disability (§ 138.8(b)(2)) and maximums (§§ 138.8(f) and 138.7(a)). For cases of permanent total disability and death, the rate cannot be less than 50 percent of the state's average weekly wage in industries covered under the Unemployment Insurance Act. § 138.8(b)(4.1). The maximum weekly compensation rate for cases of death, permanent total disability, and a few specified serious injuries is 133⅓ percent of the state's average weekly wage. § 138.8(b)(4). In no case may total benefits for dependents in death cases exceed $250,000 or 20 years, whichever is greater (§ 138.8(b)(4.2)); in addition, employers are to pay $1,750 toward funeral expenses. § 138.7(f).Google Scholar

26 Id. § 138.6(b). Except for a provision specifying lost workdays, Illinois's requirements for reporting are essentially the same as those of the federal Occupational Safety and Health Act of 1970—any work-related death, injury, or illness other than a minor injury requiring only first aid treatment and not involving medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. See U.S., Department of Labor, Occupational Safety & Health Administration, Recordkeeping Requirements Under the Occupational Safety and Health Act of 1970 (rev. booklet, Washington, D.C.: Government Printing Office, 1978).Google Scholar

27 Official First Report of Injury Forms were typically distributed to employers by their carriers, who must get IC approval to reproduce them with additional information such as the name of the carrier and instructions to the insured to send one copy to the IC and two copies to the carrier. According to informants, employers send First Reports to the IC as do carriers; although I have no hard evidence, some duplication seems likely.Google Scholar

28 Although by both statute (Ill. Rev. Stat. ch. 48, § 138.6(b) (1981)) and administrative rule, fatal injuries must be reported immediately and all other cases between the 15th and 25th days of each month, in practice, there is a steady flow of reports throughout the month.Google Scholar

29 Employers' failure to file reports of work-related injuries is a petty offense (id.); the provision has never been enforced. The 1980 amendment ensured confidentiality by providing that aggregate statistics identify neither employees nor employers. The compilation of aggregate figures has been neglected, according to IC officials, because of insufficient funds and problems with computer programs.Google Scholar

30 But cf. results of my counting reported infra at p. 1081.Google Scholar

31 Illinois Department of Labor, Bureau of Employment Security, Illinois Wage and Salary Employment and Labor Force, 1978–1979 (Chicago: Illinois Department of Labor, Bureau of Employment Security, n.d.), reported 1978 employment at 5,001,583. The figure of 400,000 may have stemmed from published figures of the U.S. Bureau of Labor Statistics of about 1 workplace injury for every 11 workers nationally. Memorandum from William Mead, Acting Assistant Commissioner for Occupational Safety and Health Statistics, U.S. Department of Labor, Bureau of Labor Statistics, to persons interested in the OSHS Program, Program Bull. no. 46—Dec. 1980. U.S., Bureau of the Census, Statistical Abstract of the United States: 1980, table 722 at 433 (Washington, D.C.: Government Printing Office, 1980), estimates that in 1978, 13,000 work-related deaths and 2,200,000 injuries were reported nationally. But the Illinois estimate is high compared with statistics gathered by the National Council on Compensation Insurance, Revised Workers' Compensation Rates—Illinois (New York: National Council on Compensation Insurance, 1978), which show that 157,635 work-related injuries were reported by insurance companies (excluding self-insurers and a few other nonmembers) during the three-year policy period of 1972–75. For a cynical, but not necessarily inaccurate, explanation of the difficulty of obtaining correct statistics on such injuries, see Daniel M. Berman, Death on the Job ch. 2 (New York: Monthly Review Press, 1978).Google Scholar

32 When First Reports are attached to Final Reports, one must determine whether the First Reports are initial filings or duplicates of previously filed First Reports. Some Final Reports reported injuries for recent months and thus possibly doubled as First Reports. For March, 21 First Reports were on out-of-state forms; for May, 19.Google Scholar

33 If this information were as widely known as informants reported, one wonders why as many as 7,000 reports were received during a two-week period, some with letters attached. Informants believed that many small businesses, out of ignorance or indifference, send no reports. For evidence of such ignorance or indifference several decades ago, see Earl S. Klein, Work Accidents to Minors in Illinois 51 (Chicago: University of Chicago Press, 1938; New York: Arno Press, reprinted ed., 1974).Google Scholar

34 It was reported that to reduce nurses' clerical tasks many employers send duplicates of forms required by their industrial clinics rather than IC forms; as a result, each visit made by workers to these clinics, even for the most minor nonreportable injury, was said to be reported. My own research verified that the IC received a number of forms prominently stamped “First Aid Only.”.Google Scholar

35 One-half of 50 states studied in 1971 were unable to estimate contested compensation cases as a percentage of all reported cases; in 11 states contested claims represented less than 5 percent of all compensable injuries, and in the remaining 14 states contested cases represented from 5 to more than 50 percent of these injuries. Report, supra note 4, at 107. Some have lamented the absence of uniform criteria and definitions among the states. See, e.g., Monroe Berkowitz & Stephen McConnell, Uniform Data Systems and Related Problems in Workers' Compensation, [Document 1] of vol. 2, Research Report of the Interdepartmental Workers' Compensation Task Force (Washington, D.C.: Department of Labor, 1979).Google Scholar

36 See text at note 7 supra.Google Scholar

37 And to interested parties on request. E.g., the figures have been used by the National Safety Council in its annual publications and in turn by the U.S. Bureau of the Census, Statistical Abstract, supra note 31.Google Scholar

38 Douglas F. Stevenson told me that the figures he presented had come from the statistician's reports except those for more recent years, which came from the final identifying numbers in the docket books. Telephone interview (Mar. 17, 1982). Current clerical practice would suggest that he used docket books for 1975–77. See note 20 supra.Google Scholar

39 General Motors Corp., Fisher Body Div. v. Industrial Comm'n, 62 Ill. 2d 106, 338 N.E.2d 561 (1975).Google Scholar

40 City of Chicago v. Industrial Comm'n, 63 Ill. 2d 99, 345 N.E.2d 477 (1976). See also Ahlers v. Sears, Roebuck & Co., 73 Ill. 2d 638, 383 N.E.2d 207 (1978) (a settlement contract approved by the Commission is in legal effect an “award” for purposes of determining a deduction for previous injury from an award for a later injury, inter alia).Google Scholar

41 Except in cases of radiological exposure (25 years) and coal miners' pneumoconiosis (5 years), disputed claims must be filed within 3 years after the date of the accident if compensation has not been paid, or within 2 years after the date of the last payment, whichever is later.Google Scholar

42 Ill. Rev. Stat. ch. 48, § 138. 19(h) (1981).CrossRefGoogle Scholar

43 The rights relinquished by employees when a lump-sum settlement is approved are listed prominently on the form for both undisputed and disputed cases: right to arbitration, IC review, further medical treatment, and additional benefits. Although claimants are not bound by any settlement unless it is officially approved, informants reported that injured workers seldom realized they did not relinquish legal rights by signing private settlements not approved by the IC.Google Scholar

44 According to informants, the secretary to the arbitrators (not to be confused with the official IC secretary) assigned arbitrators prior to 1980 in sequence.Google Scholar

45 My sample included one settlement contract for which the motions arbitrator had withheld approval. Some grounds for rejecting settlements (Rule 7-(1)(C)) are: the claimant is still under medical care or undergoing rehabilitative treatment; he or she has not returned to work for at least 60 days; the accident resulted in one of several specified disabilities. Rules Governing Practice, supra note 11. Rejected contracts or petitions for lump-sum payment must remain in the official file (id., Rule 7-(5)) until the case is assigned to an arbitrator for hearing, and the case may not be assigned to the arbitrator who rejected it.Google Scholar

46 Another major task is to keep a record on each carrier that handles covered employers' workers' compensation insurance.Google Scholar

47 Report, supra note 4, at 107.Google Scholar

48 By 1982 the date for the “automatic continuance” was six months, although in some situations cases were eligible for hearing within 15 days. In addition, attorneys could force a formal hearing with an arbitrator's approval. At the time of my study such action was seldom taken, but informants in 1982 reported that it is now done more often by respondents' attorneys. Rules Governing Practice, supra note 11, provided that by agreement a case could be advanced to a date earlier than that set by administrative procedures; in cases of disagreement, “the Commission in its discretion may advance the cause upon a hearing had on the petition of either side where good cause is shown that the case merits an immediate hearing.”id. Rule 2-(6). In 1980 the IC had spelled out conditions constituting good cause—claimant is unable to work and is not receiving temporary total disability or medical benefits to which he or she is entitled.Google Scholar

49 According to the 1979 Information Handbook published by the IC for distribution to injured workers, “Though the law does not require that you be represented by an attorney, it may be in your best interest to retain one. The employer is always represented by an attorney.” Illinois Industrial Commission, Summary of Illinois Workmen's Compensation Act and Illinois Occupational Diseases Act as Amended 7–1-77, at 7 (pamphlet; Chicago: Illinois Industrial Commission, 1979) [emphasis added]. Vehement opposition by respondent-attorneys to this admonition resulted in the following modification for the 1981 Handbook: “Both the employer and the employee may retain and frequently do retain legal counsel.” Illinois Industrial Commission, Information Handbook: Illinois Workers' Compensation Act and Illinois Occupational Diseases Act as Amended 9–15-80, at 26 (Chicago: Illinois Industrial Commission, 1981).Google Scholar

50 A position instituted in the summer of 1978 and filled by a nonlawyer. It appeared that the pro se counselor was able to encourage, if not actually press, settlements between unrepresented claimants and respondents' attorneys. By contrast, attorneys in Minnesota are employed by its commission “to advise both employees and employers of their legal rights, to attempt to settle a controversy if possible, and to conduct the handling of the case should it go to hearing. These attorneys handle cases from the filing of the original claim up through the State supreme court.” Compendium, supra note 4, at 204.Google Scholar

51 The Chicago Bar Association and the Cook County Bar Association.Google Scholar

52 Informants have suggested and observation has confirmed that a stranger or an unsponsored newcomer would have little chance to win anything for a client because, in the words of a regular, “He just wouldn't know all the rules and procedures,” especially the informal ones. In its Rules Governing Practice, supra note 11, the IC provides that only attorneys licensed to practice in Illinois “may appear on behalf of parties to litigation before the Industrial Commission,” including settlements, although licensed out-of-state attorneys may appear with IC approval.Google Scholar

53 For an excellent discussion of the effect on case outcomes of criminal law attorneys' familiarity with each other, see Herbert Jacob, Felony Justice, esp. at 34–37 (Boston: Little, Brown & Co., 1977). See also Stevenson, supra note 5, at 699, who in referring to the worth of specific injuries commonly accepted by both attorneys and arbitrators, noted: “One learns these ‘standards’ only by being associated with the Commission for they are never printed or published in any manner.”.Google Scholar

54 Ill. Rev. Stat. ch. 48, § 138.19(a) (1981). In claims for permanent disability (partial or total) or for death, the statute allows a committee to be chosen instead of a single arbitrator, but I was not aware of any cases using committees.Google Scholar

55 Id. § 138.4(h). For corroboration that these practices exist, despite statutory restrictions, see Lynch, supra note 18, at 20. See also Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978).Google Scholar

56 Such attorney withdrawal may be caused by an uncooperative client or a weak claim.Google Scholar

57 The prevalence of multiple filings for the same injury involving different attorneys appeared to me to be less frequent than some informants thought. See, e.g., Stevenson, supra note 5, at 683, where he reports one case of filings by 11 attorneys involving the same injury. More common, but still not typical, were multiple filings by the same attorney for a specific worker claiming injuries on different dates.Google Scholar

58 At the IC, the term “closed” refers to cases resolved by a settlement contract and was more an administrative than a legal distinction.Google Scholar

59 No administrative personnel were available for routine dismissals in downstate areas, where arbitrators alone dismissed claims.Google Scholar

60 Beginning in August 1981, if cases more than 3 years old appeared on the call sheets, they were automatically assigned to arbitrators for “trial” and were removed permanently from the call sheets; failure of plaintiffs or their attorneys to appear at these scheduled hearings could result in dismissal by the arbitrator. Except for these cases, cases filed before August 1981 could proceed under the old system if both counsel agreed.Google Scholar

61 IC policy held that attorneys' failure to keep accurate records of dismissals was their problem, not the IC's responsibility. Attorneys for plaintiffs did report, however, that they tried to avoid dismissal by an arbitrator because of the inconvenience, if not difficulty, in reinstating cases.Google Scholar

62 One informant suggested a more exotic reason: if a worker owed money to a lender, a privately arranged settlement could allow the worker to avoid having the payment attached and at the same time pay the attorney's fee.Google Scholar

63 In a few cases, dismissed claims were formally reinstated only to be dismissed again; in some cases, entries of dismissal in the docket books were made long after a settlement had been officially approved and entered, indicating attorneys' failure to report settlements as required and the absence of a procedure for assuring more accurate information.Google Scholar

64 See text at note 48 supra.Google Scholar

65 Only when cases were set for hearing did an arbitrator enter continuance dates on the outside of case files. Thus there was no way of finding out how many times a case had been continued before that stage.Google Scholar

66 Exceptions were cases more than 3 years old or those in which attorneys waited until the scheduled hearing date to request a continuance.Google Scholar

67 Few of the 1978 cases had been on the call sheets for 3 or more years, and the outcomes of most of these cases were not the result of automatic assignments. Also, only in Cook County did arbitrators assume responsibility for the progress of disputed cases more than 3 years old. Responsibility was not tantamount to speedy resolution, nor did having an arbitration hearing date guarantee that one would be held. Several arbitrators used the first automatically scheduled date for old cases as a pretrial conference to narrow the issues. In practice, on the first date scheduled, a large group of attorneys routinely lined up before the arbitrator to get continuances of 3 months, by which time the parties would—they hoped—have settled their differences.Google Scholar

68 If the disabling condition is temporary, arbitrators' awards do not bar later determination of compensation for additional temporary benefits or benefits for permanent disability. Ill. Rev. Stat. ch. 48, § 138.19(b) (1981).Google Scholar

69 Settlements resolving filed claims must be officially approved. In cases of installment awards (typically paid weekly), either party may reopen the case within 30 months if the nature of the disability changes. Ill. Rev. Stat. ch. 48, § 138.19(h) (1981). (See text at note 42 supra.) The procedure for reopening is identical with that for review of arbitration decisions.Google Scholar

70 For interviews with injured workers who signed settlements (or “compromise and release” agreements), see James N. Morgan, Marvin Snider, & Marion G. Sobol, Lump Sum Redemption Settlements and Rehabilitation (Ann Arbor: University of Michigan, 1959). See also Louise B. Russell, Compromise and Release Settlements, in Supplemental Studies, supra note 10.Google Scholar

71 Stevenson, supra note 5, at 696–99. Support for prehearing agreements is found in Posner, supra note 2, where it is argued that insurance companies and industrial commissions realize economies in administrative and policing costs and that the disincentive effects of tying weekly compensation to the inability to return to work are avoided.Google Scholar

72 Ill. Rev. Stat. ch. 48, § 138.16(a) (1981).CrossRefGoogle Scholar

73 For an excellent explanation for insurance companies' desire to make settlements and close cases filed in automobile accident cases, see H. Laurence Ross, Settled Out of Court (2d ed. Chicago: Aldine Publishing Co., 1980).Google Scholar

74 I did not discover whether most of these claimants suffered financial hardships because of the long delay. Evidence that they probably do can be found in Cooper & Co., supra note 9, at 75. The period during which agreements were struck, however, varied considerably from a few months to several years after filing.Google Scholar

75 Ill. Rev. Stat. ch. 48, § 138.9 (1981).Google Scholar

76 According to statutory requirements for the alleged disability.Google Scholar

77 An additional method (a “walk-through”) was provided by IC directive: the claimant's attorney could request immediate approval of the settlement by the daily motions arbitrator for good cause (e.g., the claimant was moving out of state immediately).Google Scholar

78 For these cases, docket entries showing a “trial” date and an arbitrator assignment usually meant that both counsel had agreed to a hearing and had appeared before an arbitrator selected by blind draw. Not included among these cases were those in which a lump-sum payment was requested after an arbitration award and which were eventually entered in the docket books as settlements following an award.Google Scholar

79 At least until the change described at notes 86 and 87 infra.Google Scholar

80 Ill. Rev. Stat. ch. 48, § 138.19(b) (1981). This held true even in cases decided after a statutory amendment became effective in 1981 requiring written “findings of fact and conclusions of law.”Id.§ 138.19(b) (1981).Google Scholar

81 One arbitrator sat in Peoria and 10 others were responsible for specified downstate areas.Google Scholar

82 Ill. Rev. Stat. ch. 48, § 138.14 (1981).CrossRefGoogle Scholar

83 According to Rules Governing Practice, supra note 11, Rule 3(5): “The rules of evidence shall apply in all proceedings … either upon arbitration or review.” Court reporters recorded proceedings as required by Ill. Rev. Stat. ch. 48, § 138.16 (1981).Google Scholar

84 Chairs line the walls of the hearing rooms (ostensibly for observers), and while these hearings are formally open to the public, some arbitrators and commissioners inquired about the identity of unknown observers. Because of unfavorable media reports in Chicago several years ago, attorneys were sensitive about strangers.Google Scholar

85 See note 48 supra. In addition, if one attorney refused to complete a stipulation agreement on the date of a scheduled hearing and his opponent wanted a hearing, the arbitrator could allow the case to be heard and sanction the recalcitrant attorney; this did not appear to happen often, if ever.Google Scholar

86 Before an arbitrator heard a case, counsel for both sides filled out and signed a stipulation form listing all statutory areas of possible disagreement.Google Scholar

87 Because respondent-attorneys are usually paid for the time they spend rather than on a contingent-fee basis, complaints from them about waiting periods were fewer.Google Scholar

88 Some of these cases were later reopened because of a change in disability. Review department records indicated that about 4 such cases, which may be reopened within 30 months after an installment arbitration award (Ill. Rev. Stat. ch. 48, § 138.19(h) (1981)), were reviewed each week. 1 have excluded these cases and petitions seeking formal reinstatement of DW Ped cases from my discussion here of cases on review. Both kinds of cases were docketed, assigned, and set for hearing in the same manner as the typical petition for review of an arbitration decision, but only those opened under § 138.19(h) (1981) and review petitions were eligible for oral arguments.Google Scholar

89 Id. § 138.13 (1981). In practice this person usually represents the party of the appointing governor.Google Scholar

90 Id. § 138.19(e) (1981).Google Scholar

91 Oral argument was seldom waived by the parties, but according to Rules Governing Practice, supra note 11, failure of the appellant to file a summary more than 15 days prior to oral argument or of either party to file appropriate briefs constituted waiver. According to an IC official, argument was waived when both attorneys agreed that a case was not “important enough” to justify the time required to prepare the documents.Google Scholar

92 IC rules provided time limits for each side, including rebuttals, of 5 minutes when the nature and extent of disability was the sole issue (excluding cases of permanent total disability and death) and 10 minutes for all other cases. Efficiency and expediency were the goals. The shorter time allowed for oral argument on the nature and extent of disability would seem to indicate that questions about the seriousness of a particular injury required less time because ascertaining the truth was extremely difficult, no matter how much time was allowed. Of course, making such ascertainments is precisely the purpose of this administrative agency.Google Scholar

93 According to informants, beginning in 1982 the chairman was not always in attendance at oral arguments.Google Scholar

94 In contrast with arbitration hearing rooms, the desk in each commissioner's hearing room was slightly elevated.Google Scholar

95 In contrast to review hearings, where claimants were the chief witnesses. Rules Governing Practice, supra note 11, Rule 5-(4) provided for the presence of petitioners (claimants) at oral arguments:. The petitioner, at his own request, or at the request of the hearing commissioner, shall present himself for examination at the time set for oral argument. In the event that neither the petitioner nor the hearing commissioner request the presence of the petitioner, the respondent may request his presence, subject to the discretion of the hearing commissioner, and if such presence is ordered by the hearing commissioner, the respondent shall pay … sufficient monies to defray the necessary expense of travel … and reimbursement for any loss of wages.Google Scholar

96 During three weeks of each month, one day a week was reserved for oral arguments for Chicago cases and another day for all downstate cases (except those in the Peoria area); during the fourth week, commissioners traveled downstate to take testimony in their assigned areas and to preside over oral arguments in Springfield for the Peoria-area cases. Downstate attorneys not handling Peoria-area cases had to travel to Chicago for oral arguments. I collected no data to determine whether there were any differences between the number of Cook County cases and the number of downstate cases. Oral arguments were more convenient, however, for attorneys in Cook County than for most downstate attorneys.Google Scholar

97 Although the chairman presided over almost all oral arguments (but see note 93 supra), she did not always attend deliberations for deciding cases. Participating attorneys agreed that the initial hearing commissioner was perceived as the most influential because he had heard full testimony; he may also serve to assure that there are no flagrant miscarriages of justice. The purpose of having the full commission take part in decisions is to make and disseminate policy. The chairman's attendance at most deliberations puts her stamp on current policy, which is especially important following recent legislation requiring the IC to establish precedents. Ill. Rev. Stat. ch. 48, § 138.19(e) (1981). Formally, of course, each commissioner has an equal voice.Google Scholar

98 On petitions requesting review of arbitration decisions, the docket books had entries only for the date the petition was filed, by whom, the date the transcript was produced, and the final resolution. For some cases in the sample, the date of oral arguments had been entered, but in mid-1981 clerks were told not to continue such entries; docket entries for hearings by commissioners had never been made. There was thus no way for me to know whether a hearing had been held or in which cases oral arguments had been held.Google Scholar

99 Ill. Rev. Stat. ch. 48, § 138.19(e) (1981).CrossRefGoogle Scholar

100 Id.Google Scholar

101 Either party may petition to have all or an unpaid part of an award in a lump sum if “it appears to be in the best interest of the parties” and is approved by the assigned commissioner; for cases of total disability no petition for a lump sum may be filed until 6 months after the injury. When such petitions are granted, the lump sum must be equal to the “total sum of the probable future payments capitalized at their present value upon the basis of interest calculated at 3% per annum with annual rests.”Id. ch. 48, § 138.9 (1981).Google Scholar

102 Bill Barnhart, On LaSalle Street: Adlai's Promise Is Less than Thoughtful, Chicago Tribune, Oct. 13, 1982, § 3, at p. 3, cols. 3–6.Google Scholar

103 Ill. Rev. Stat. §§ 138.19(k), (l) (1981).CrossRefGoogle Scholar

104 Id. §§ 138.19(f), (l) (1981).Google Scholar

105 Id. § 138.19(f)(2) (1981).Google Scholar

106 According to IC records, 234 of all claims filed in 1978 had progressed into the state court system by September 1981.Google Scholar

107 Ill. Rev. Stat. ch. 110A, § 302(a) (1981). See also Albert E. Jenner, Jr., & Philip W. Tone, Historical and Practice Notes, Ill. Ann. Stat. ch. 110A, 302 478 (Smith-Hurd 1968).Google Scholar

108 From the enactment of Illinois workers' compensation legislation in 1911 through the 1981 term, in only 13 cases involving the IC has there been an appeal or a petition for certiorari to the United States Supreme Court, 14 U.S. 293, 15 U.S. 236, but only one case was heard, Chicago & E. Ill. R.R. v. Industrial Comm'n, 284 U.S. 296 (1932). Many of these cases involved employees of railroads and questions of interstate commerce for determining whether injured workers were subject to state or federal legislation. Within the past five years, the Illinois supreme court has considered, under its rule-making power, having intermediate appellate courts handle appeals from circuit courts in workers' compensation cases, but informants said that labor interests resist the proposed change. The court's vacillation is reported in Albert E. Jenner, Jr., & Arthur M. Martin, Supplement to Historical and Practice Notes, Ill. Ann. Stat. ch. 110A, at p. 313 (Smith-Hurd Supp. Pamph. 1982–83).Google Scholar

109 Myszkowski v. Industrial Comm'n, 68 Ill. 2d 205, 369 N.E.2d 827, 827 (1877); Pazara v. Industrial Comm'n, 81 Ill. 2d 76, 405 N.E.2d 767, 767 (1980) (the court will not “set aside a decision of the Industrial Commission merely because the court might have made a finding different from that of the Commission or might have drawn inferences other than those reasonably drawn by the Commission”); Spiegel, Inc. v. Industrial Comm'n, 64 Ill. 2d 226, 356 N.E.2d 39, 40 (1976) (“It is the responsibility of the Industrial Commission to determine disputed facts, judge credibility of witnesses, and resolve conflicting testimony”).Google Scholar

110 Stevenson, supra note 5.Google Scholar

111 Stevenson makes no mention of court suits in his charges of a “litigation explosion”—he is talking of litigation in the broadest sense. Id. IC records confirmed the accuracy of the extrapolated figure here: 234 disputes filed in 1978 had in fact progressed into the state court system; see note 106 supra. Cf., however, Jeff Brody, Work Comp Caseload Chafes Supreme Court, Irks Business, Crain's Chi. Bus., May 5, 1982, at 1, col. 2.Google Scholar

112 In spite of the difficulty, it has been reported that only 40.4 percent of all claims for work injuries are uncontested; see Cooper & Co., Promptness of Payment in Workers' Compensation, prepared for the Interdepartmental Workers' Compensation Task Force (1976) and reported in Darling-Hammond & Kniesner, supra note 4, at 35 table 2.3.Google Scholar

113 Stevenson, supra note 5.Google Scholar

114 Stevenson has discounted both rising employment and increasing numbers of accidents as explanations for the increase in the number of disputes. Id. That some correlation exists, however, between the general economy and the number of compensation disputes is indicated by Curley, John, Penny Pinchers: Fearing Loss of Jobs, Many Consumers Cut Purchases, Save More, Wall St. J., Nov. 24, 1982, at 1.Google Scholar

115 Compendium, supra note 4, at 205, raises an empirical question by asserting that the dollar amounts of workers' compensation benefits are disputed or litigated less often than are other claims for personal injury. See, however, Alfred F. Conard et al., Automobile Accident Costs and Payments, esp. 154–58 (Ann Arbor: University of Michigan Press, 1964).Google Scholar

116 That represented claimants improve their chances of receiving disability benefits under social security is reported by Fialka, John J., Growth Industry: Disability-Claim Cases Under Social Security Are a Boon to Lawyers, Wall St. J., Jan. 14, 1982, at 1.Google Scholar