A little over a week ago the Illinois Appellate Court, Workers Compensation Division, issued its decision in the case of Murff v. IWCC, 2017 IL App (1st) 160005WC. At issue was the Court’s interpretation of Sections 19(h) and 8(a) of the Illinois Workers’ Compensation Act.
The factual background is a city garbage collector suffered a work-related injury and ended up with permanent restrictions. Those restrictions kept him from garbage collecting, but the city offered light-duty work in its rodent-control department for the same rate of pay – thereby attempting to defeat an argument for wage differential benefits due to a reduced earning capacity. The case went to hearing and an award was entered. Basically, all was fine until a few years later when the city decided to no longer off the light-duty work. Because the injured worker could also not return to garbage collecting and now faced a reduced earning capacity, he asked the Commission to award vocational (job assistance) benefits under the Act. He was denied.
First, the Court in Murff addressed that Section 19(h) – the Section of the Act that allows post-judgment modification of an award for a period of time – is only triggered when there is a change in physical disability; not a change in economic circumstances. Since the former garbage collector had no different restrictions or disability now than when he received his award, the Court found Section 19(h) did not apply and that the worker’s claim for further benefits was rightfully dismissed.
Second, the worker argued that he should be allowed to petition for vocational benefits under Section 8(a) of the Act alone, which is where one’s rights to vocational benefits even comes from. In a foreboding statement, the Court found Section 8(a) provided no independent right of review for a final award. If the legislature wanted to provide a right to review it needed to state so in the law’s language. Therefore, the only access a worker has to an award modification is through 19(h) – which again requires a change in physical disability.
The Court previously restricted rights to post-award benefits in Curtis v. IWCC, 2013 IL App (1st) 120976WC, finding that any further temporary total disability benefits must fall within the 30 month time-window for award modification under 19(h) (or 60 months under a “wage impairment” award). Piece by piece, the Court has restricted the amount of benefits available post-award and limited their recovery to a short few years post-decision.
The Murff decision is important to understand for two reasons. First, notice how the employer offered accommodated work for the same rate of pay, only to terminate the employment a couple years later. This is a warning shot to any injured worker and his or her attorney to remain diligent in fighting “sham” job offers intended for no other purpose than to reduce an award and the worker’s rights. Second, the most potentially disturbing aspect of Murff is the Court states Section 8(a) offers no independent right to review. Do you know what comes right before vocational benefits in Section 8(a)? Medical benefits. It has long been assumed medical rights remain open indefinitely post-award. It is a cornerstone of our practice. I am not so sure now. The Court did not address open medical rights in Murff or Curtis, but only because that question was not before it. It is not hard to see, however, that the same logic of Murff and Curtis could be extended to open medical benefits. It is hard to understate the dramatic impact this would have.
You might ask how it is possible the Court could potentially find something so contrary to decades of practice. Let us not forget in Will County Forest Preserve District v. IWCC, 12 IL App (3d) 110077WC, the same Appellate Court upended a century of Commission precedent where an injury to the shoulder was classified as an “arm” under the law. The Court, instead, found the shoulder to be part of a “person-as-a-whole.” What was the rationale for the dramatic departure with the way it has always been done? “This court has not had occasion to consider the classification of a shoulder injury.” Will County, 12 IL App (3d) 110077WC, ¶ 18. Meaning, no one’s ever asked us before.
Is it possible the only reason everyone thinks open medical rights continue under Section 8(a) indefinitely post-award is because no one has ever bothered to ask if that is true?