Practice Alerts

June 12, 2007

In a decision issued today, a majority of the Appellate Court has expressed a willingness to apply a heightened level of scrutiny to cases wherein the Commission reverses an Arbitrator's decision by reversing the Arbitrator's findings on credibility.   The Court issued its opinion in S & H Flooring v. Illinois Workers’ Compensation Commission, Dkt. 4-06-0245WC, 6/12/07, stating “It may very well be time to reconsider the Commission’s prerogative to determine credibility regardless of the arbitrator’s decision”.

Please note the Court refused to apply a heightened scrutiny standard in this case, where the employer introduced NO medical evidence in support of its defense AND the employer's witnesses on the issue of accident/causation actually lent support (through their testimony that employee limped for one year at the end of each work day) to a finding of repetitive trauma.

The Court seems to be saying that when employer has presented solid evidence on all issues, including accident, that is persuasive to the Arbitrator, and the Commission reverses, at least in significant part, by reversing credibility findings, the Court will give that Commission decision a greater degree of scrutiny.  However, if even one core issue, such as accident or causation, is not closely contested on the evidence, the de novo standard will be applied.

This case is important reading both as it reflects the Court's recognition of the current atmosphere and emphasizes the importance of preparing a full defense for all litigation.

We at Brady, Connolly & Masuda have long thought the “de novo” standard, whereby the Commission looks afresh at all the evidence, needed re-evaluation.  The justification for allowing de novo review (that new evidence could be introduced on appeal) was removed years ago. 

This decision provides hope for business and insurance as it indicates the Court’s recognition that at least some present day Commission practices require critical assessment.

Feel free to call us with any questions on the meaning of this decision and its application to your file handling.