WCLA MCLE Beelman Trucking: Permanent Total Disability and Specific Losses Tuesday July 28, :00 noon to 1:00 pm James R. Thompson Center Auditorium, Chicago, IL 1 hour general MCLE credit

WCLA MCLE Report WCLA Accredited CLE Provider renewed 16 seminars Average attendance 151 (220 high; 91 low) 3065 lawyer/hours of MCLE $16.32 per hour Already scheduling for 2010

Issue “Whether the Workers’ Compensation Commission’s award of permanent partial disability benefits in addition to statutory permanent total disability benefits is contrary to law.” (From Beelman’s Brief to the Appellate Court, emphasis added.)

Workers’ Compensation Act Section 8(e)18: “The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section. These specific cases of total and permanent disability do not exclude other cases.” 820 ILCS 305/8(e)18 Section 8(f): “(I)n the specific case of total and permanent disability as provided in subparagraph 18 of paragraph (e) of this Section, compensation shall be payable at the rate provided in subparagraph 2 of paragraph (b) of this Section for life.” 820 ILCS 305/8(f)

Previous Interpretations Arview v. IC, 415 Ill.522 (1953): “The loss of additional members over and above the two specified in the Act cannot convert such statutory permanent and total disability into a case of specific losses.” Freeman United Coal v. IC, 99 Ill.2d 487 (1984): Petitioner awarded TTD for a second work accident after he was statutory PTD for first accident Rodriguez v. City of Chicago, 97IIC0020: Petitioner can be entitled to specific loss in addition to statutory permanent total disability

Arview Denied specific losses in addition to statutory PTD 1 st injury: lost 100% R eye 2 nd injury: below knee amputations R & L legs; L arm amputation at shoulder Respondent wants to pay 1 specific loss (leg) and put statutory PTD on Second Injury Fund Petitioner wants all 3 specific losses from Respondent and statutory PTD (from whom?) Commission awards statutory PTD against Respondent Supreme Court says Respondent should pay for 1 leg and Second Injury Fund should pay statutory PTD

Freeman United Coal Petitioner is entitled to TTD for subsequent injury after he has been awarded and is receiving statutory PTD Statutory PTD for amputation of both legs RTW for Respondent Subsequently injures stump of left leg Commission awards TTD without any credit for statutory PTD Appellate Court affirms Respondent argued incorrectly that statutory PTD is the largest amount that an injured worker may receive and precludes any type of additional award

Rodriguez 1997 Commission Decision (Kinnaman, Dickett Smart) Petitioner struck by car sustains bilateral leg amputations and L hand crush injury RTW as emergency crew dispatcher Arbitrator T. Black awards statutory PTD but no specific loss Commission modifies and awards statutory PTD and 25% loss of use of the L hand Citing rationale in Freeeman

Jack G. Carson v. Beelman Trucking DA year old married truck driver with one child “Rendered quadriplegic…no sensation below the mid-chest level…right arm was surgically amputated above the elbow following the accident; and although his left arm remains, it is paralyzed below the level of the shoulder.”

Arbitration Decision 95WC02795 Arbitrator Teague, Belleville, 11/22/2005 “Other:…compensation for statutory PTD and/or PPD in addition to PTD; compensation for TTD/maintenance in addition to statutory PTD” Award of: $498.69/week for life pursuant to Section 8(e)18; $396.89/week for 250 weeks pursuant to Section 8(e) 10 for above the elbow amputation of the right arm and 235 weeks for paralysis of Petitioner’s left arm below the shoulder Relying on Freeman & Rodriguez: “Limiting Petitioner’s entitlements to the same maximum that would apply if he still enjoyed complete and unrestricted use of both upper extremities is illogical and inconsistent with the intent of the Act.”

Commission Decision 06IWCC0587 Commissioners Pigott, DeMunno, Basurto, 7/21/2006 Affirms and adopts Arbitrator’s award Modifies award for Right arm: increased to 300 weeks as provided in Section 8(e)10: “amputation so close to shoulder joint that an artificial arm cannot be used…compensation for an additional 65 weeks.”

Circuit Court Decision 06MR80 Judge William J. Becker, Clinton County, 1/23/07 “This Court agrees with the Commission that PPD benefits can be awarded in addition to statutory PTD benefits for injuries arising in the same accident. The logic of Freeman and the rationale of the Act lead this Court to believe that the Commission’s decision in Rodriguez is correct.”

Appellate Court Decision 381 Ill.App.3d 701 McCullough, Hoffman, Grometer, Holdridge (donovan dissenting in part), 3/31/2008 Reverses the Circuit Court and Commission in part and sets aside the PPD awards for the arms under Section 8(e)10 Beelman argues “that the award of 300 weeks pursuant to Section 8(e)10 is contrary to law. The facts show that award was based upon the injuries incurred in the same incident which resulted in the total and permanent disability awarded pursuant to Section 8(e)18. We agree…” Relying on Arview: “The employer is correct in arguing that the Commission does not have the power to award specific losses of permanent partial disability and permanent total disability resulting from the same accident.”

Supreme Court Decision Docket No Justice Garman delivered the opinion, concurred by Justices Fitzgerald, Freeman, Thomas, Kilbride, Karmeier and Burke, 5/21/2009 Appellate Court reversed and Commission award reinstated “Beelman’s argument that the legislature’s use of the words ‘total and ‘permanent’ serves as a cap on benefits for injuries sustained in a single accident is not supported by this Court’s prior interpretation of the statute.” “Case” in section 8(e)18 means “special set of circumstances” or “instance, ” not separate legal proceeding Distinguishes Arview because Carson is not trying to avoid the application of Section 8(e)18 by itemizing specific losses

Applicability of Beelman Trucking Are payments concurrent? Does it apply to less than 100% specific loss, like 35% loss of use of the arm? Does it apply to “regular” PTD (odd-lot or medical) under Section 8(f) as well as “statutory “ PTD under Section 8(e)18? Does it apply to whole person award under Section 8(d)2 as well as specific losses under Section 8(e)? Wage differential? What happens if Petitioner dies? (Jack Carson did recently)

Section 8(e) “(e) For accidental injuries in the following schedule, the employee shall receive compensation for the period of temporary total incapacity for work resulting from such accidental injury, under subparagraph 1 of paragraph (b) of this Section, and shall receive in addition thereto compensation for a further period for the specific loss herein mentioned, but shall not receive any compensation under any other provisions of this Act. The following listed amounts apply to either the loss of or the permanent and complete loss of use of the member specified, such compensation for the length of time as follows: “