The valuation of permanent disability benefits including the type and extent of such benefits as well as the issue of penalties. The types and amounts of benefits are statutory which leaves the Industrial Commission powerless toward a remedy where no benefit is provided for.
Once it has been determined that this is a compensable claim, i.e. that there was an accident that arose out of and in the course the employment, then the next question is almost always what is the nature and extent of injury. In this sense, injury cases are medical cases, that present medical questions. Consequently, it is important for workers' compensation practitioners on both sides to gather all available medical information, including reports and records from treating doctors and hospitals as well as the reports of examining physicians. Once the medical condition reaches a state of permanency, then it can be determined what the value, or the disability, of the case involves. Permanency is open to different interpretations, but in general it is defined as a long period of time without substantial change in the condition. Once that injury has reached a state of permanency, then the next step is to try to evaluate the amount of that permanency.
There are basically two types of disability. Permanent partial disability and permanent total disability. To determine permanent partial disability, the Act has divided the body into several parts. The Act has given each both part a specific value, or number of weeks. To determine the value of each individual case, one must pick the injury, and determine what percentage disability that body part has. Then, the statutory amount of weeks is multiplied by the percentage's disability, and the value of the case is, thereby, determined. For example, the Act states that a thumb is worth 70 weeks. If the medical testimony shows that there is a 10% loss of use of the function of a thumb, then one would take 10% of the 70 weeks and come to the permanent partial disability evaluation of 7 weeks disability. The Act provides statutory guidelines for body parts as follows:
- Thumb -- 70 weeks.
- First, or index finger -- 40 weeks.
- Second, or middle finger -- 35 weeks.
- Third, or ring finger -- 25 weeks.
- Fourth, or little finger -- 20 weeks.
- Great Toe -- 35 weeks.
- Each toe other than great toe -- 12 weeks.
- The loss of the first or distal phalanx of the thumb or of any finger or toe shall be considered to be equal to the loss of one-half of such thumb, finger or toe and the compensation payable shall be one-half of the amount above specified. The loss of more than one phalanx shall be considered as the loss of the entire thumb, finger or toe. In no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.
- Hand -- 190 weeks. The loss of 2 or more digits, or one of more phalanges of 2 or more digits, of a hand may be compensated on the basis of partial loss of use of a hand, provided further, that the loss of 4 digits, or the loss of use of 4 digits, in the same hand shall constitute the complete loss of a hand.
- Arm -- 235 weeks. Where an accidental injury results in the amputation of an arm below the elbow, such injury shall be compensated as a loss of an arm. Where an accidental injury results in the amputation of an arm above the elbow, compensation for an additional 15 weeks shall be paid, except where the accidental injury results in the amputation of an arm at the shoulder joint, or so close to shoulder joint that an artificial arm cannot be used, or results in the disarticulation of an arm at the shoulder joint, in which case compensation for an additional 65 weeks shall be paid.
- Foot -- 155 weeks.
- Leg -- 200 weeks. Where an accidental injury results in the amputation of a leg below the knee, such injury shall be compensated as loss of a leg. Where an accidental injury results in the amputation of a leg above the knee, compensation for an additional 25 weeks shall be paid, except where the accidental injury results in the amputation of a leg at the hip joint, or so close to the hip joint that an artificial leg cannot be used, or results in the disarticulation of a leg at the hip joint, in which case compensation for an additional 75 weeks shall be paid.
- Eye -- 150 weeks. Where an accidental injury results in the enucleation of an eye, compensation for an additional 10 weeks shall be paid.
- Loss of hearing of one ear -- 50 weeks; total and permanent loss of hearing of both ears -- 200 weeks.
- Testicle -- 50 weeks; both testicles -- 150 weeks.
- For the permanent partial loss of use of a member or sight of an eye, or hearing of an ear, compensation during that proportion of the number of weeks in the foregoing schedule provided for the loss of such member or right of an eye, or hearing of an ear, which the partial loss of use thereof bears to the total loss of use thereof bears to the total loss of use of such member, or sight of eye, or hearing of an ear.
Hearing Loss
- Loss of hearing for compensation purposes shall be confined to the frequencies of 1,000, 2,000 and 3,000 cycles per second. Loss of hearing ability for frequency tones above 3,000 cycles per second are not to be considered as constituting disability for hearing.
- The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average in decibels for the thresholds of hearing for the frequencies of 1,000, 2,000 and 3,000 cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average 30 decibels or less in the 3 frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average 85 decibels or more in the 3 frequencies, then the same shall constitute and be total or 100% compensable hearing loss.
- In measuring hearing impairment, the lowest measured losses in each of the 3 frequencies shall be added together and divided by 3 to determine the average decibel loss. For every decibel of loss exceeding 30 decibels an allowance of 1.82% shall be made up to the maximum of 100% which is reached at 85 decibels.
- If a hearing loss is established to have existed on July 1, 1975 by audiometric testing the employer shall not be liable for the previous loss so established nor shall he be liable for any loss for which compensation has been paid or awarded.
- No consideration shall be given to the question or whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.
- No claim for loss of hearing due to industrial noise shall be brought against an employer or allowed unless the employee has been exposed for a period of time sufficient to cause permanent impairment to noise levels in excess of the following:
Slow Response
Hours Per Day
90
8
92
6
95
4
97
3
100
2
102
1 1/2
105
1
110
1/2
115
1/4
This subparagraph (f) shall not be applied in cases of hearing loss resulting from trauma or explosions . . .
Statutory Permanent Total Disability- The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of 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.
Any employee who has previously suffered the loss or permanent and complete loss of the use of any of such members, and in a subsequent independent accident loses another or suffers the permanent and complete loss of the use of any one of such members the employer for whom the injured employee is working at the time of the last independent accident is liable to pay compensation only for the loss or permanent and complete loss of the use of the member occasioned by the last independent accident . . .
The Industrial Commission's decisions are published and are generally helpful in evaluating a particular case. If a party has a case involving particular injury, he could look up the cases with similar body parts and similar injuries that have been decided by the Commission, review the decisions, and try to compare that case to his own case to determine the number of weeks that should be paid. The Commission decisions are available for inspection at the Commission's headquarters or may be purchased. An index with summaries of Commission decisions are included a book called "Q-Dex". In this index, cases are grouped by issues, for example: arising out of, causal connection, and the nature and extent of injuries.
In those cases that do not involve a specific body part, or if it is sustained that do not presently incapacitate one from pursuing other suitable employment, or if one sustains injuries partially incapacitating him from his usual and customary line of employment but not resulting in impairment of earning capacity, then an employee may elect to be compensated for the percentage of loss of a person as a whole. The whole person is figured at 500 weeks. A person as a whole would be used for such things as back injuries, neck injuries, heart attacks, strokes, or other types of injuries whereby an employee is unable to return to the same job and has to be retrained and take some other type of job. For example, in the event that a person sustains a back injury, but is unable to return to his job as involved in heavy lifting but is able to work in some other field, he would be compensated for a percentage of a man; say, for example, 25% loss of use of a man, would pay 125 weeks.
There are also two types of permanent total disability awards under the Act, i.e., specific permanent total disability and non-specific permanent total disability. Section 8(e) of the Act calls for certain "specific permanent total awards". This section provides that "in specific case of loss" or "permanent complete loss of the use" of both hands, arms, feet, legs, eyes, or any two of them constitute permanent total disability. So two members or their permanent and complete loss of use in one accident is thus an automatic permanent total disability under Section 8(e). An employee can actually receive a permanent total award and still be able to return to some other gainful employment.
There is also a non-specific permanent total disability. It is seen in many things such as severe back conditions, heart attacks, black lung, or other disabling injuries. In general, a person is determined to be disabled when he cannot perform any services except those which are so limited in quantity, dependability, or quality that there is no reasonably stable market for them. It is well established that an employee may be rendered totally and permanently disabled for the purposes of determining workers' compensation benefits by a mental disorder as well as by a physical one. Evidence that an employee has been, or is able to earn occasional wages, or to perform certain useful services, neither precludes the finding of total disability nor requires a finding of partial disability. For purposes of the Act, a person is totally disabled when he cannot perform any services except for those which no reasonably stable labor market exists. In 1979, the Courts and the Commission expanded this concept. In A.M.T.C. of Illinois, Inc. v. Industrial Commission, 757 Ill.2d 482, 397 N.E.2d 804, 34 Ill.Dec. 132, the Court stated that, "if a claimant's physical disability is limited in nature so that he is not obviously unemployable, then it is not unreasonable that the burden of him to establish the unavailability of work to a person in his circumstances. This burden can be met by showing that reasonable efforts were made to secure suitable employment . . . the kind of employment that can be performed by a person in his circumstances. If the employee can show that he has a substantial disability and has been disqualified from work by his employer, he may fall into an "odd-lot" category, which refers to those who are employable in only a limited capacity."
Penalties
The Act does allow for penalties in certain circumstances. The purpose of a penalty is to expedite compensation and penalize unreasonable or bad faith delay in payment. The employer generally has a burden of showing a reasonable belief that the delay in payment was justified. There are other penalties involved in the Act, and these are found in Section 19 of the Act. Section 19(l) provides a penalty of Ten Dollars ($10.00) per day for failure to pay weekly compensation benefits, to a maximum penalty of Two Thousand Five Hundred Dollars ($2,500.00). Section 19(k) of the Act is used primarily to penalize employers for non-payment of awards or settlements. The penalty for non-payment of an award or settlement under this section is fifty percent (50%) of the unpaid amount.
Section 19(m) provides for a twenty-five percent (25%) increase in compensation if an accidental injury is directly and proximately caused by the employer's willful violation of a health and safety standard under the Health and Safety Act in force at the time of the accident. The Commission has been reluctant to award penalties under this benefit, claiming that it is not appropriate for the Commission to determine whether there has been a violation of the Health and Safety Act. Section 16 allows the Commission to award attorneys' fees when there has been a violation of 19(k). These, is in all of the other ones, are based on an unreasonable denial of payment. Failure to pay because of a good faith belief that no payment is due will not warrant a penalty. If an employer acts reasonably in relying on medical opinions to contest liability, it will also generally insulate against penalties.