AN APPEAL FOR YOUR APPEALS (OR, I FOUGHT THE LAW AND THE LAW WON)

AN APPEAL FOR YOUR APPEALS (OR, I FOUGHT THE LAW AND THE LAW WON) Presented and Prepared by: Brad A. Elward belward@heylroyster.com Peoria, Illinois 309.676.0400 Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen K-1

AN APPEAL FOR YOUR APPEALS (OR, I FOUGHT THE LAW AND THE LAW WON) I. AN OVERVIEW OF THE APPEALS PROCESS IN WORKERS COMPENSATION CASES... K-3 A. A History of the Process... K-3 B. 2011 in Review... K-3 C. A Four-Year Window... K-3 II. CRITICAL SEGMENTS... K-4 A. The Circuit Court... K-4 B. The Appellate Court, Workers Compensation Commission Division... K-4 C. The Supreme Court... K-5 III. HOW DOES THE APPELLATE COURT LOOK AT YOUR CASE?... K-6 A. It Focuses on the Record From Arbitration... K-6 B. It Applies the Governing Standard of Review... K-7 1. Fact Questions... K-7 2. Discretionary Rulings... K-7 3. De Novo... K-7 IV. HOW TO USE AN APPEAL TO RESOLVE YOUR CLAIM... K-7 A. Resolve the Issues on the Merits... K-7 B. Advance the Case Toward Settlement... K-7 C. Understand the Appeal Decision Involves More Than Just Defense Costs... K-8 V. WHAT WE EXPECT FROM THE 2011 AMENDMENTS... K-8 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. K-2

AN APPEAL FOR YOUR APPEALS (OR, I FOUGHT THE LAW AND THE LAW WON) I. AN OVERVIEW OF THE APPEALS PROCESS IN WORKERS COMPENSATION CASES A. A History of the Process The appeals process in workers compensation cases begins with the petition for review filed with the Workers Compensation Commission and includes the judicial review to the circuit court, an appeal as a matter of right to the appellate court, and a dual discretionary appeal to the Supreme Court. The Commission is deemed the trier of fact and any deference on fact-findings is afforded to the Commission, not the arbitrator. In 1984, Illinois Supreme Court Rule 22(i) authorized the creation of a separate branch of the appellate court, called the Appellate Court, Industrial Commission Division, since 2005, known as Workers Compensation Commission Division, and empowered it to hear all cases concerning workers' compensation claims. Prior to that time, workers' compensation cases were appealable as a matter of right to the Illinois Supreme Court. Under Rule 22(i), the Industrial Commission Division consists of five justices, one from each appellate district, to be appointed by the Supreme Court Justice from that district. This Division was created to promote a more efficient handling of workers' compensation appeals, to alleviate the burden on the Supreme Court, and to create a more uniform body of law. B. 2011 in Review In 2011 there were 136 orders and decisions rendered by the Appellate Court, Workers Compensation Commission Division; of these, 116 were unpublished Rule 23 orders and 17 were published decisions. C. A Four-Year Window Summary of Workers Compensation Activity Year Total Appeals Filed Opinions Issued Rule 23 Orders 2010 183 12 105 2009 174 18 111 2008 199 14 107 2007 152 14 92 Given the numbers identified in subsection B above, it appears that the total number of appellate court filings in 2011 has continued to rise over the past few years. K-3

II. CRITICAL SEGMENTS A. The Circuit Court The circuit court review is the first purely appellate review of the process and is often referred to as the judicial review. Judicial reviews are governed by 820 ILCS 305/19(f), Supreme Court Rule 292, and Commission Rule 7060.10. To properly commence a judicial review, the party challenging the Commission s decision must file five documents: Written Request to Commence Review Proceedings Summons for each opposing party, counsel, and Commission (usually three) Receipt showing payment of the probable costs of preparing the record on appeal or an affidavit of counsel showing that payment has been made Appeal bond signed by the employer and surety Certificate of service All must be filed in person with the circuit court within 20 days of the receipt of the Commission s decision. Gruszeczka v. Illinois Workers Compensation Comm n, 2012 IL App (2d) 101049WC (mailbox rule does not apply to section 19(f) filings). This time period is considered jurisdictional and it cannot be extended by the parties agreement or by the circuit court. Of these five documents, the most critical is the employer s appeal bond. This bond must be signed by a representative of the employer who has the authority to financially bind the employer and by a surety authorized to issue surety bonds within the State of Illinois. Illinois does not allow a workers compensation carrier to post the policy in lieu of an appeal bond. How is the bond amount determined? Bonds are set at $100 over the outstanding amount of the award, with a maximum amount of $75,000. Venue is governed by the location of the party defendant in the judicial review, or, if no party defendant is located within the state, then the location of the accident. 820 ILCS 305/19(f)(1). B. The Appellate Court, Workers Compensation Commission Division At present, the Division consists of: Justice John T. McCullough, Appellate Court, Fourth District, Presiding Justice Justice Thomas E. Hoffman, Appellate Court, First District Justice Donald C. Hudson, Appellate Court, Second District Justice William E. Holdridge, Appellate Court, Third District Justice Bruce D. Stewart, Appellate Court, Fifth District K-4

Each justice also has a designated alternate in the event they are unavailable or have a conflict on the case. The court alternates between Chicago and Springfield and typically meets 10 times per year. C. The Supreme Court Appeals to the Illinois Supreme Court are governed by Supreme Court Rule 315(a), which also sets forth the general grounds for the filing of a Petition for Leave to Appeal (PLA). According to that Rule: Except as provided below for appeals from the Illinois Workers' Compensation Commission division of the Appellate Court, a petition for leave to appeal to the Supreme Court from the Appellate Court may be filed by any party, including the State, in any case not appealable from the Appellate Court as a matter of right. Whether such a petition will be granted is a matter of sound judicial discretion. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court's supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed. Supreme Court Rule 315(a). As pertaining to workers compensation appeals, the Rule adds: No petition for leave to appeal from a judgment of the five-judge panel of the Appellate Court designated to hear and decide cases involving review of Illinois Workers' Compensation Commission orders shall be filed, unless two or more judges of that panel join in a statement that the case in question involves a substantial question which warrants consideration by the Supreme Court. A motion asking that such a statement be filed may be filed as a prayer for alternative relief in a petition for rehearing, but must, in any event, be filed within the time allowed for filing a petition for rehearing. Supreme Court Rule 315(a). The time for filing such a request is within 21 days of the appellate court decision or order. Supreme Court Rules 315(a), 367(a). Filing for Supreme Court review is a two-step process, which first requires the issuance of a statement from at least two members of the appellate court that the case involves a substantial question which warrants consideration by the Supreme Court. If those statements are issued, the party seeking Supreme Court intervention must then file a Rule 315(a) petition for leave to appeal, the allowance of which is discretionary with the Court. K-5

The Supreme Court typically accepts between four and six percent of the PLAs filed with it annually. Of this number an even smaller percentage are workers compensation appeals. To place this in perspective, the Appellate Court, Workers Compensation Commission Division did not issue a single Rule 315(a) statement in 2011. One PLA was filed in 2010 (denied); one was filed in 2009 (allowed); three were filed in 2008 (one was allowed); and one was filed and denied in 2007. The most recent Supreme Court pronouncements on workers compensation law were: Interstate Scaffolding, Inc. v. Illinois Workers Compensation Comm n, 236 Ill. 2d 132, 923 N.E.2d 266 (2010) Beelman Trucking v. Illinois Workers Compensation Comm n, 233 Ill. 2d 364, 909 N.E.2d 818 (2009) Roberson v. Industrial Comm n, 225 Ill. 2d 159, 886 N.E.2d 191 (2007) There are at least two cases of interest to workers compensation practitioners currently pending before the Supreme Court on petition for leave to appeal: Gruszeczka v. Illinois Workers Compensation Comm n, 2012 IL App (2d) 101049WC (application of the mailbox rule to section 19(f) filings) Will County Forest Preserve District v. Illinois Workers Compensation Comm n, 2012 IL App (3d) 110077WC (whether a shoulder is an arm under the Act) Because of the need to obtain a written statement from at least two justices of the appellate court, and further discretion from the Supreme Court, for all practical purposes, the Appellate Court, Workers Compensation Commission Division, is the principal authority on workers compensation law in the state. III. HOW DOES THE APPELLATE COURT LOOK AT YOUR CASE? A. It Focuses on the Record From Arbitration The court considers only the evidence whether documentary or testimony, presented at arbitration and contained in the record on appeal. Thus, if the parties conduct a section 19(b) hearing on March 30, 2012, the appellate court record will stop as of that hearing date and the appellate court cannot consider any matters that transpire in the case after that date. K-6

B. It Applies the Governing Standard of Review The appellate court reviews each issue in the case through the prism of a standard of review. Three standards apply to issues based on the type of question involved: 1. Fact Questions Fact issues are governed by a manifest weight of the evidence standard. Under this standard, the appellate court asks whether an opposite result is clearly apparent. The manifest weight of the evidence standard applies to all questions of fact and credibility and where the Commission is required to review conflicting medical evidence. Where there is evidence in the record to support the Commission s decision, the Commission s ruling is to be affirmed. 2. Discretionary Rulings Discretionary rulings are governed by an abuse of discretion standard of review, which asks whether a reasonable person in the position of the Commission would have reached the same conclusion. This standard most frequently applies to admissibility of evidence issues, but also applies where the arbitrator is asked for leave to file pleadings or to reinstate a claim previously dismissed for want of prosecution. 3. De Novo A de novo standard of review applies to questions of law. These are most commonly associated with statutory interpretation. When reviewing a Commission decision on this standard, the appellate court affords no deference to the Commission s findings and can decide the issue anew. IV. HOW TO USE AN APPEAL TO RESOLVE YOUR CLAIM A. Resolve the Issues on the Merits The primary job of the appeal is to either set aside an adverse Commission decision (as appellant) or to uphold a favorable Commission decision (as appellee). B. Advance the Case Toward Settlement The appeal process is complex and time-consuming and requires different skills than needed to try a case before an arbitrator or the Commission. These factors in addition to the uncertainty make the filing of an appeal, or the threat to file and prosecute an appeal, a tool in moving your case toward settlement. The time delay in reaching a final appellate decision can provide leverage to compromise an award or obtain a closure of future medical and other rights such as those available under section 8(a) and 19(h). K-7

C. Understand the Appeal Decision Involves More Than Just Defense Costs The decision to appeal is based on three prongs: (1) the potential financial costs of the appeal, (2) the prospects for success on appeal, and (3) the implications of not appealing. While the first two are self-explanatory, the third prong involves an understanding of how the appeal impacts the claim, how it might impact settlement prospects, and the public perception of the employer based on its decision to pay the award or advocate its rights. V. WHAT WE EXPECT FROM THE 2011 AMENDMENTS Several of the 2011 amendments will need significant appellate court interpretation to fully understand the parameters of the new law. We anticipate that disputes on these issues will necessitate more appellate litigation and will require larger defense reserves in order to ensure that in each case our issues are fully preserved and the foundation set for appellate review. RESOURCES: Elward, Brad A., Workers Compensation Reviews And Appeals: A Review And Suggestion For Change, 22 N. Ill. U. L. Rev. 493 (Summer 2002) K-8

Brad A. Elward - Partner Brad concentrates his work in appellate practice and has a significant sub-concentration in workers' compensation appeals. He has been with the firm since 1991 and has handled all aspects of civil appeals, ranging from preparation of initial appeal documents through the drafting of appellate briefs and presentation of oral arguments. Brad handles workers' compensation cases before the Workers' Compensation Commission, the circuit courts, and the Appellate Court, Workers' Compensation Commission Division. Brad has authored more than 275 briefs and argued more than 125 appellate court cases, resulting in more than 60 published decisions. He has appeared before every Illinois Appellate Court District and has significant experience with interlocutory appeals. He has also authored amicus curiae briefs before the Illinois Supreme Court on behalf of the Association of Illinois Defense Trial Counsel. In addition to his workers' compensation appeals, Brad has also handled appeals involving complex asbestos and procedural issues (including venue and forum non conveniens) and served as a senior motion writer and team leader on multi-billion dollar diminished value and salvage title class action litigation. Brad has taught courses on workers' compensation law for Illinois Central College as part of its paralegal program and has lectured on appellate practice before the Illinois State Bar, Peoria County Bar, and Illinois Institute for Continuing Legal Education. He has also authored numerous articles on appellate and workers' compensation practice and writes a quarterly column on appellate practice for the Illinois Association of Defense Trial Counsel. Brad is the current editor of the firm's workers' compensation e-newsletter, published monthly. Brad has also written and published five books and over 20 articles on naval aviation and military related topics. Publications "Survey of Illinois Law: Workers' Compensation," Southern Illinois University Law Journal (2010) "Rule 315(a) Petitions for Leave to Appeal: A Practice Primer," Illinois Defense Counsel Quarterly (2009) Public Speaking Workers' Compensation Appeals to the Commission, Circuit and Appellate Court Winnebego County Bar Association (2011) Recent Changes and Developments in Illinois Workers' Compensation Appeals/Recent Cases IDC Fall Seminar (2011) Professional Recognition Named to the Illinois Super Lawyers list (2008-2012). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation. Professional Associations Illinois Appellate Lawyers Association (Secretary; Director 1997-99; Rules Chairman, 1999-2001; Rules Committee, 2005-06; event coordinator; past moot court competition judge) Illinois State Bar Association (Workers' Compensation Section Council, 1998-2000) American Bar Association (TIPS, Appellate Advocacy Committee, and Workers' Compensation Committee) Peoria County Bar Association Illinois Association of Defense Trial Counsel (IDC Quarterly Editorial Board; IDC Quarterly "Appellate Practice" columnist) Court Admissions State Courts of Illinois United States Court of Appeals, Seventh and Eighth Circuits United States District Court, Central and Southern Districts of Illinois Education Juris Doctor, Southern Illinois University (Magna Cum Laude), 1989 Bachelor of Science-Economics, University of Illinois, 1986 K-9 Learn more about our speakers at www.heylroyster.com