WCLA MCLE 12-17-15
2015 Year End Review & UpdateThursday December 17,201512:00 pm to 1:00 pmJames R. Thompson Center , Chicago, IL1 Hour General MCLE Credit
January 2015 Case Law UpdateRG Construction v. IWCC, 2014 IL App (1st) 132137WC
Arbitrator :“Ioffered the opportunity to take this deposition, but I feltit onlyfair that the [employer] pay for it since I think under theAct theonly thing that [claimant] needs to do is have a certifiedrecord orhave these records via subpoena which Iunderstand[he has]adheredto thoserequirements”Commission:"While we are in agreement with the decision of theArbitrator onthis issue, we further address [the employer's]constitutional argument. We find no violation [of the employer's]Fourteenth Amendmentright to due process. The Arbitrator offeredto continuethe hearing if [the employer] elected to obtain thedepositions ofthe Drs. Nam and Silver, but [the employer] declined.The treatmentrecords were therefore properly admitted pursuantto Section16 of the ActOnjudicial review, the circuit court of Cook County confirmed theCommission's decision. The employer appeals, arguingitwas denied its due process right tocross-examine witnessesand present rebuttal evidence by the admission into evidence of claimant'smedical records, which contained the opinions of two of claimant's treatingphysiciansAppellate Court: “Theemployer does assert that‘[i]t is undeniable that the doctors'records containopinions beyond medical and surgical matters admissible pursuant to Section 16.’ However, itcites no authority for this statement other than section 16 itself.After reviewing thestatutory language, we find no indication that the legislature intended to exclude a treatingdoctor's opinion, which was offered during the course of the doctor's treatment of theemployee and memorializedin the doctor's treating records, from the phrase‘medicaland surgical matters.’”
February 2015 Legislative UpdateTime Line
3-11-15: House Labor Committee on Impact of 2011 WC Reforms5-5-15: House Committee of the Whole5-28-15: Senate Judiciary Committee: SB0994Radogno; defeated 4-86-4-15: House passes HB1287 (Madigan)6-30-15: Senate Committee of the Whole8-4-15: Senate passes SB0162(Raoul)
Legislative UpdateSB0994 (Radogno)/HB4246 (Durkin)
Major contributing causeTraveling employeeWorkers’ compensation insurance(?)Man as a whole creditAMA Guides: “if such a report exists;” “not required…settlement contract”30% reduction Medical Fee ScheduleIWCC rules for electronic billingEliminate 2 year Arbitrator rotationWC Ombudsman: “assist injured workers…”WEAR Commission: “more accessible to laypeople…prevent disputes…limit the opportunity for lengthy and expensive appeals”Computer systemNo appeal bond for StateIWCC gets control ofFraud Unit
February 2015 Legislative UpdateHB1287 (Madigan)
Passed House, 6-4-15, vote 63-39-4Excessive premiumsSafety & Return to Work programsTraveling Employee (Venture Newberg?)Arising out of and in the course of (Sisbro?)Contribution (?) action for repetitive trauma casesSelf-insurance reportingWhat was voted down? No “Yes” votes (0-69-38): “Major contributing cause”
February 2015 Legislative UpdateCausation Proposal
HB1287, HFA#1, Lost 0-69-38 (5-22-15)(f) The term "injury" as used in this Act means amedical condition or impairment that arises out of and in the course of the employment. An injury, its occupational cause, and anyresulting manifestations or disability must be established to a reasonable degree of medical certainty, based onobjective relevantmedical findings. For an accidental injury tobe compensable, the accident must be the major contributingcause ofany resulting injuries. For the purpose of this Section,"major contributing cause" means the cause which is morethan 50% responsible for the injury compared to all other combined for which treatment or benefits are sought. "Injury“ includesthe aggravation of a pre-existing condition byan accidentarising out of and in the course of employment,but onlyfor so long as the aggravation of thepre-existing conditioncontinues to be the major contributing cause ofthe injury.
February 2015 Legislative UpdateSB0162 (Raoul)
Passed Senate 8-4-15, vote 36-19-1Defines “arising out of and in the course of” (Sisbro?)Defines “traveling employee” (Venture Newberg?)Section 8.1b: Allows Sec.12 exam to be considered; no AMA necessary for award or settlementElectronic billingRepeals 2 year Arbitrator rotationOmbudsman: “attorney licensed to practice law in the State of Illinois…demonstrated experience”WEAR Commission: “Nothing in this Section shall be construed to allow or authorize the WEAR Commission to seek to or to diminish, restrict, limit, expand abrogate, alter or change in any way the current interpretation of any substantive or procedural provision of this Act by the Commission or any Court.”Computer SystemFraud Unit to IWCC
March 2015 Another Case Law UpdateSharwarkov. IWCC, 2015 IL App (1st) 131733WC
According to our supreme court, the dispositive inquiry is whether the claimant has reached MMI.InterstateScaffolding…Thereare, however, three recognized exceptions. TTD benefits may be suspended or terminated before an employee reaches MMI if he: (1) refuses to submit to medical, surgical, or hospital treatment essential to his recovery; (2) refuses to cooperate in good faith with rehabilitation efforts; or (3) refuses work falling within the physical restrictions prescribed by his doctor.TheCommission obviously relied upon the opinions of Drs.Hoepfner,VednerandKonowitzin concluding that the claimant "did not prove that he could not work." And based upon the opinions of Drs.Hoepfner,VednerandKonowitz, we cannot say that the Commission's determination of this issue is against the manifest weight of the evidence as a contrary conclusion is not clearly apparent.We believe, as did the Commission, that when work for an injured employee falling within his medical restrictions is available, the employee's voluntary retirement is the equivalent to a refusal to work within those restrictions, authorizing the termination of TTD benefits before the employee has reached MMI. SeeCity of GraniteCity.
April 2015 Recent AMA CasesFranciscoAntunesv. NorwoodPaper, 11WC040542, 15 IWCC499
DA 9-9-11, 35yomachine operator, Dr. Ho does left knee arthroscopy (medial meniscectomy etc.)Arbitrator “considers all factors set forth in Section 8.1b of the Act”(i) Respondent offered Dr.Karlssonrating “4% loss of the left leg which is equivalent to 2% loss of the whole person. Under cross-examination, Dr.Karlssonacknowledged …”(ii) through (v) TheArbitrator notes that Petitioner was 35 years old as of the first accident, at which point he had worked intermittently for Respondents for nine years. The Arbitrator considers that Petitioner has spent much of his adult life performing tasks of a physicalnature. Petitioner credibly testified that his knee and ankle complaints affect his ability to engage in certain physical activities.Arbitrator awards 20% loss of use of left leg
April 2015 Recent AMA CasesFranciscoAntunesv. Norwood Paper, 11WC040542, 15 IWCC 499
Commissionmodifies down to 12.5% loss of leftlegAlthough Petitioner did not offer an impairment rating, the Commission is not obligated to directly follow the impairment rating of Dr.Karlsson. We note that Dr.Karlsson'simpairment rating was specific to the medial meniscus tear and did not account for the chondral changes in the patellofemoral joint. Dr.Karlssontestified that some of these changes were related to the accident by way of an aggravation to a preexisting condition.Thenature of Petitioner's employmentasa temporary laborer is understood to be variable but physically demanding.Petitionerwas thirty-five years old on September 9, 2011 and is expected to endure working for many years.No evidence was offered related to any impact on Petitioner's future earnings capacity and Petitioner is not under any physical restrictions related to the September 9, 2011 accident.Wenote that Dr. Ho and Dr.Karlssonexpected Petitioner's left knee to remain somewhat symptomatic and Petitioner complains of swelling, instability, and pain in the left knee. Although Dr. Ho released Petitioner from active care at his last examination on February 4, 2013, he did not discount Petitioner's subjective complaints and administered an injection into Petitioner's left knee.
April 2015 Recent AMA CasesKyleStanczakv. Town of Normal, 12WC6285, 15 IWCC 459
DA 10-3-11, 24yotrash collector, arthroscopic repair of SLAP lesion right shoulderCommission affirms Arbitrator’s award 10% loss whole person (19.76% right arm equivalent)(i) In this case, neither party submitted an AMA impairment rating.(ii) Petitioner testified that since April 1, 2013, when he was released to return to work, he has worked several heavy jobs, including a driver of a grapple truck: a landscape job inCarlock, Illinois where he mowed grass and moved 40 - 50 lb. blocks about 20 feet; that he has worked for Alpine Waste, a commercial dumpster company in Commerce City, Colorado and Erosion Control of Colorado, where he was required to shovel and carry heavy bales of hay. The Arbitrator finds that although Petitioner has permanent injuries, he has been engaged in physical employment since April 1, 2013, which has required regular use of his right shoulder(iii) Petitionerwas only 24 years old at the time of his injuries. The Arbitrator considers Petitioner to be a younger individual and concludes that Petitioner will likely have to live and work for a longer period of time than an older individual with the same injuries.
April 2015 Recent AMA CasesKyleStanczakv. Town of Normal, 12WC6285, 15 IWCC 459
(iv) Noevidence that Petitioner's future earning capacity has diminished as a result of this injury.(v) Petitionersustained a repetitive trauma injury to his rightshoulder…Dr. Dustman, ultimately performed an arthroscopy with arthroscopy repair of SLAPlesion…Thediagnosis was SLAP lesion, impingement with AC joint changes. Post operatively Dr. Dustman described it as Petitioner having tolerable pain on December 6, 2012.Abduction and external rotation was slightly limited. There was expected weakness..Petitionerstill hadpain…discomfort…4out of 5strength …littlebit of feeling of instability on occasion. Dr. Dustman felt Petitioner needed to work on a scapular strengthening program...Physicaltherapy notes showsorenessduetoworking…fatiguequickly.Petitionercredibly testified that he continues to experience discomfort in his shoulder.The determination of PPD is not simply a calculation, but an evaluation of all five factors as stated in the Act. In making this evaluation of PPD, consideration is not given to any single enumerated factor as the sole determinant. Therefore, after applying Section 8.1b of the Act,820 ILCS 305/8.1bandconsidering the relevance and weight of all these factors, the Arbitrator finds Petitioner is permanently disabled to the extent of 10% under Section 8(d)2 of the Act.
May 2015 Recent Commission DecisionsSusan Routt v. Wal-Mart Stores, 12WC026412; 14IWCC1051
IWCC reversesthe Arbitrator's grant of Respondent's Motion to Dismiss and reinstates the Application for Adjustment of ClaimTheissue in this case is whether a dismissal for want of prosecution (DWP) precludes the filing of a new Application for Adjustment of Claim within the statute oflimitationsWe first address Respondent's argument that the Commission no longer has jurisdiction to hear this Review because Petitioner failed to file an authenticated transcript by the return date on review.Petitionerfiled a Motion to Extend Time to File Transcript on November 22, 2013 claiming that her attorney did not receive the transcript until November 21, 2013 even though the return date on review was November 15th. On December 9, 2013, Commissioner DeVriendt granted Petitioner's motion. We find that the Commission still has jurisdiction to hear this Review.Regarding Petitioner's second Application, we find that it is not barred by the dismissal of the first Application. The second Application was filed timely within the statute of limitations and we follow the Commission decision ofJohnson v. IDOT. 6 IWCC 991(11/14/06) and the Supreme Court case of Chicago Rawhide Mfg. Co. v. IC. 35 III. 2d 595 (1966).CC Summons filed by Respondent (Cook 15L50011);7-9-15 Order Court’sMotion Cause Dismissed
June 2015Causation: Past, Present &FutureThomasHeglandv. FedEx, 10WC013266,15IWCC0103IWCC Affirms & Adopts NO Causation
While the Petitioner's current treating physician, Dr.Citow, has issued an opinion indicating that he believes there is a causal connection between the Petitioner's original accident and his current recommendation for a cervical spine fusion, the Arbitrator notes that the doctor's opinion is predicated upon an inaccurate history that the Petitioner's complaints of neck pain and tingling began at the time of the original accident, and continued unabated. It is clear from the records of Dr. Collins that the tingling in the fingers would wax and wane.The Arbitrator relies upon the opinion of Dr. Bernstein, who found that there was no causal connection between the original alleged injury and the Petitioner's subsequent cervical spine condition, based upon the change in the EMG findings, the fact that the Petitioner appeared to recover from his shoulder surgery and was able to complete an FCE indicating that he could perform unrestricted activity, and the gap in time between the original accident and the Petitioner's subsequent complaints of tingling and later neck pain. Considering the Petitioner's age and the change in the diagnostic findings, the Arbitrator agrees with Dr. Bernstein that the condition may be the result of a chronic degenerative change versus an acute injury from January 6, 2010.Most significantly, the Arbitrator finds that based upon the Petitioner's testimony and the treating medical records, the complaints involving the neck and fingertips did not occur until at least almost one month after the alleged accident. Based upon the lack of contemporaneous complaints involving the neck or fingertips at the time of the accident, a finding mat the Petitioner's alleged accident either caused injury to the Petitioner's cervical spine or aggravated a pre-existing condition to the cervical spine is precluded.Further, the Arbitrator finds it unlikely that the Petitioner sustained acute injuries to his neck, low back and shoulder on January 6, 2010 based upon the Petitioner's vague specifics regarding the original accident.
July 2015 Case Law UpdateBellv.IWCC, 2015IL App (4th) 140028WC
By their plain terms, these provisions merely establishto whom benefits will be paidifthe employeedies with a spouse or dependents before he has been fully compensated forhis work-relatedinjury. They do not limit the ability of a deceased employee’s estate tocollect accrued, unpaid benefits that were due and owing to the employee while he was alive.Neither provisionaddresses what happens when an employee dies without leaving a survivingspouse orany surviving dependents, as in this case. Accordingly,neither provisionshould be readas barringan employee’s estate to collect accrued benefits under such circumstances.We reach the same conclusion here. In this case, Ms. Nash’s estate seeks only thosePPD benefitsthat had accrued and were payable, due, and owing to Ms. Nash prior to her death.It doesnot seek future installment payments that would have accrued andbecomepayable toMs. Nashon some future date had she survived.Republic SteelandNationwide Bankprovide thatsuch benefits may be collected by Ms. Nash’s estate.Sections 8(e)19 and 8(h)say nothing about what happens when an injured employeedies withoutleaving any eligible dependents. Thus, these sections of the Act do not defeatthe employee’sestate’s right to collect benefits that accrued before the claimant’s death,as confirmedbyRepublicSteel.
August 2015 Return To WorkProgramsAKA Temporary Transitional Employment (TTE)
Richard Lee v. Fluid Management, 11WC048656, final: “There is no statutory authority in the State of Illinois for Temporary Transitional Employment and the Act does not refer to Temporary Transitional Employment.”Anthony Berndt v.Hibar, 12WC010057, 14IWCC0152: “(E)ntitycalledReEmployabilitysent a letter …referencing Petitioner’s work restrictions and indicating a transitional full-time job as thrift store sales assistant…extension of Petitioner’s employment with Respondent.” Petitioner presents and advises thrift store of restrictions. “(A)ctedin good faith” TTD awarded for time after offer.RobertPrzanowskiv. Des Plaines, 11WC035540, 14IWCC1122: “temporary” is not “bona fide” offer of employment.Eric Alvarez v.Foodliner, 13WC020686, 15IWCC0443 : “temporary transitional employment…YMCA…Toys for Kids…senior center” Petitioner followed up in each case. Testimony of TTE vendor found to be “less than credible.” “The Illinois Workers’ Compensation Act no mention of TTE.” TTD & penalties awarded.Dan Perkins v. TurnerIndustries, 09WC044791,15IWCC0468: Theposition withAllFacilities(CATALYST) waswholly subsidized by the workers' compensation insurance company and was clearly not found in a competitive job market. This is not competitive or real employment.
September 2015 YLS SectionVocational Rehabilitation/Maintenance/Odd Lot PTD
National Tea73Ill.Dec. 575 (IL 1983) –Commission award of vocational rehabilitation wasaffirmed. Petitioner42 years ofage; Testingrevealed low-averageintelligence; 20years as a meatcutter; Treatingphysician indicated petitioner could notandshould not return to priorjob1) Loss of earning capacity:Petitioner sustained a lumbar injury, had a laminectomy, and his restrictions precluded him from returning to priorjob; Heattempted to RTW with Respondent but could notcontinue; Petitionerfound employment with AMOCO, but the job ended. The Court did not give great weight to the argument that this was a general layoff as no other employees were laid off and noted that it was “at least as probable that claimant’s age, training and medical condition accounted for his unsuccessful attempts to secureemployment; ” Hemade “numerous attempts” to secure employment and there was discussion of some employers asking for medical condition in applications for employment.2) Evidence that rehabilitation will increase his earning capacity:Petitioner presented vocational expert opinion that “he was unaware of any job claimant could obtain, without training, in which he would be compensated at a rate similar to his pre-injuryearnings;” Respondent“failed to produce any evidence that vocational rehabilitation is unnecessary.”3) Appropriateness of vocational rehabilitation:The Court inNational Tea Co.discussed the “necessity” of vocational rehabilitation and “appropriateness of rehabilitation programs” as a related question.TheCourt identified that the legislature has given little guidance on the issueandnotes Rule 7110.10 as a step in the right direction. The Court also indicates that there should be a cost-benefit analysis in considering the reasonableness of the rehabilitation award in the relative costs and benefits, work-life expectancy, and ability and motivation to undertake the program.
October 2015 Another Case Law UpdateAdcock v. IWCC, 2015 IL App (2d) 130884WC
12 IWCC 1221 (Commission denies)The evidence establishes that the Petitioner did sustain a left knee injury. The Petitioner testified that he was sitting on his swivel chair and turning when he felt a pop in his knee. The Petitioner testified specifically that at the time of his injury, he was not pushing his chair, rather he was turning his body. Furthermore, Dr.Rochelltestified that there was nothing specific atPetitioner'sworkplace that increased the risk of a left knee injury as it could have happened anywhere.Theact of turning, even in a chair, is an activity of everyday life and does not constitute a compensable injury under the Illinois Workers' Compensation Act.Bailey,12I.W.C.C. 0399;Ikerman,06I.W.C.C. 1133;Wright,03 I.I.C. 0465;Moreland,01 I.I.C. 0702.The State of Illinois does not recognize the positional risk doctrine.Brady143Ill.2d542 (1991).The injury does not arise out of the employment, however, if it results from a hazard to which the employee would have been equally exposed apart from the employment.Caterpillar129Ill.2d52(1989). The act of turning, whether standing or in a chair, is not a hazard greater than that faced by the general public.NabiscoBrands266Ill.App.3d1103 (1994).TheCommission finds no evidence that the injury was caused by an increased risk connected with the Petitioner's work duties, or a defect in the chair or floor. The Petitioner's act of turning in his swivel chair did not expose him to a risk greater than that to which the general public is exposed, and it was not a risk distinctive to his employment.
October 2015 Another Case Law UpdateAdcock v.IWCC, 2015 IL App (2d) 130884WC
Whether an injury arose out of and in the course of a claimants employment is a question of fact to be resolved by the Commission, and its determination will not be disturbed on review unless it is against the manifest weight of the evidence.Neutralrisk of everyday living faced by all members of the general public.Petitioner’s injuryis compensable only if the claimant was exposed to this(neutral) riskto a greater degree than the general public.Petitioner made thatshowing here. The claimant’s work duties required him to weld approximately 70 locks during one workday.Special concurrencemaintains that, if an employee is injured whileperforminga common bodily movement that is required by his jobduties, thenthe injuryaroseoutofhis employment, even if the physical action that caused the injury is something that virtually everyone does on a daily basis (such as walking or turning while sitting in a chair). For the special concurrence, all that matters is that the physical action is required by the employee’s job duties; if so, then the risk posed by the activity is assumed to be connected to the claimant’s employment, andit wouldbeimproper toengage in a neutral-risk analysis.
November 2015Folta& Continental Tire (& SunriseAssisted Living)
Folta: Exclusive remedy bars civil suit against employerContinental Tire: 0% AMA rating and 5% loss of hand not contrary to law or manifest weight of the evidenceSunrise Assisted Living: Trial court did not err in denying Petitioner judgment under Section 19(g) and interest under Section 2-130 of the Code