WCLA MCLE 12-5-13

• 2013 Year End Review• Thursday December 5, 2013• 12:00 pm to 1:00 pm• James R. Thompson Center , Chicago, IL• 1 Hour General MCLE Credit

January 2013 Two Plus TwoVenure-Newberg-Perini v. IWCC, 2012IL App (4th) 110847WC• Appellate Court, 12-6-12, 3-2 decision, reverses Circuit Court • Our first question, then, is whether the claimant qualified as a traveling employee. A "'traveling employee'" is

defined as "one who is required to travel away from his employer's premises in order to perform his job." Cox v. Illinois Workers' Compensation Comm'n, 406 Ill. App. 3d 541 (2010). It is undisputed that (1) the claimant in this case was employed by Venture-Newberg; (2) he was assigned to work at a nuclear power plant in Cordova, Illinois, operated by Exelon in excess of 200 miles from his home; and 3) the premises at which the claimant was assigned to work were not the premises of his employer. These facts establish the claimant's status as a traveling employee. (Manifest weight?)

• The test of whether a traveling employee's injury arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged at the time of his injury and whether that conduct might have been anticipated or foreseen by Venture-Newberg… The question is one of fact to be resolved by the Commission, and its determination should not be disturbed on review unless it is against the manifest weight of the evidence…In this case, the Commission found that Venture-Newberg must have anticipated that the claimant, recruited to work at Exelon's facility over 200 miles from the claimant's home, would be required to travel and arrange for convenient lodging in order to perform the duties of his job, and that it was reasonable and foreseeable that he would travel a direct route from the lodge at which he was staying to Exelon's facility… This determination is clearly not against the manifest weight of the evidence.

January 2013 Two Plus TwoIngrassia Interior v. IWCC, 2012 IL App (2d) 110670WC

• Appellate Court, 12-10-13, 5-0 (special concurrence), Circuit Court reversed; decision of the Commission reinstated; remanded to IWCC for further proceedings

• The sole issue before this court is whether the fact that a transcript was not filed within the time period specified in section 19(b) of the Act deprives the Commission of jurisdiction to review the decision of the arbitrator. Under the circumstances of this case, we conclude that it does not. Generally, we apply the de novo standard when we review a jurisdictional issue. However, in this case, the meaning of an administrative regulation is also at issue. We owe substantial deference to an agency's construction of its own regulations…courts afford considerable deference to the interpretation placed on a statute by the agency charged with its administration…This is true regarding even questions of jurisdiction. Thus, where reasonable minds could disagree as to the extent of an agency's jurisdiction, we defer to the agency's interpretation if the interpretation is defensible.

• Nothing in this provision speaks to when a "request for hearing" form—and the stenographic stipulation contained therein—becomes binding. …"request for hearing" form consists of what are essentially requests for evidentiary admissions intended to limit the issues that are in dispute. It would be an odd rule indeed that would allow a party to recant such an admission on the eve of a hearing… In sum, the Commission's construction of section 7030.40 is reasonable. Nothing in the plain language of the section conflicts with the Commission's interpretation, and the interpretation is entirely consistent with contract law. Accordingly, the trial court should have deferred to it… [T]he court should defer to the agency's interpretation if the interpretation is reasonably defensible.

• Concurrence: I write separately in order to state my position that our supreme court's holding in Pocahontas Mining , 301 Ill. 462,(1922), is directly on point in the instant matter. The court in Pocahontas observed that, when the term "jurisdiction“ is utilized in discussing a question of filing of the transcript before the Commission, the term does not refer to the power of a court to hear cases but, rather, the term describes "the statutory authority given to [the Commission] to hear and consider cases under the Compensation act.”…In the instant matter, we could not be clearer in our holding than to repeat the words that our supreme court pronounced in 1922. It cannot be doubted and certainly will not, for a moment, be questioned that the Commission had subject matter jurisdiction and did not lose that jurisdiction simply because the transcript was not filed within the time period required under the Act.

January 2013 Two Plus TwoShawn Dorris v. Continental Tire,11WC046624

• DA 9-18-11• 38 yo tire press operator• Left wrist arthroscopy for repair of peripheral TFCC tear by Dr. David Brown• “At the request of Respondent’s counsel, Dr. Brown prepared a permanent partial disability

impairment report dated August 27, 2012” • (i) 6% upper extremity impairment (report admitted)• (ii) press operator is “labor-intensive job”• (iii) “somewhat younger”… “PPD more extensive”• (iv) no alleged future earning capacity impact• (v) loss of motion; pain; loss of strength; home activities• 13% loss of use of the hand• Status: Arbitration Decision Rendered (Final)

January 2013 Two Plus TwoJeffrey Garwood v. Lake Land College, 12WC004194

• DA 9-12-11• 54 yo vocational computer instructor• Left knee arthroscopy medial & lateral meniscus tears (debrided) & chondromalacia (chondroplasy &

synovectomy)• “Petitioner was examined by Dr. Joseph T. Monaco at Respondent’s request on August 3, 2012…provided an

impairment rating”• (i) 8% impairment of lower extremity (Closely deposed: “The Arbitrator notes these concessions by Dr.

Monaco”)• (ii) Now instructor in construction occupations• (iii) No evidence as to impact of age• (iv) Could be issues with accommodations if he were to lose job• (v) Credible testimony as to pain and stiffness; corroborated by diagnoses and need for surgery; objectively

corroborated by IME• 20% loss of use of the left leg• Status: Pending Oral (Respondent Review)

February 2013 More App. Ct & More AMAU of I Hospital v. IWCC,2012 IL App(1st)113130WC

• Appellate Court 12/21/2012• Vacate the judgment of the Circuit Court and remand the cause to the Commission for entry

of a final decision with regard to the claimant’s request for Permanent disability benefits• Ordered supplemental briefing on the issue of jurisdiction• Subject matter jurisdiction cannot be waived, stipulated to, or consented by the parties.• Only final determinations of the Commission are appealable…if it determines the litigation on

the merits and it is not final if the order leaves disputed matters pending and undecided• 19(e): “a decision of the Commission shall be approved by a majority of 3 members of the

Commission.”• The two Commissioners who found that claimant was entitled to benefits did not agree with

regard to a permanency award; the third Commissioner found that claimant was not entitled to benefits because of no causation

• Not final because no 19(e) majority

February 2013 More App. Ct & More AMADye v. IWCC,2012 IL App (3d) 110907WC• Confirmed by LaSalle County Circuit Court• Appellate Court Decision 12/31/2012; reverse in part (prospective medical) affirm in part

(denial of penalties)• 8(a) “incurred…even if they have not been performed or paid for”• Commission Decision against the manifest weight of the evidence• Petitioner suffered a disfigurement as defined by the Supreme Court in Superior Mining

309 Ill. 339 (1923)• Observable to the naked eye• Different standard of severity for 8(a) medical and 8(c) permanency?• Affirm denial of penalties under manifest weight• Dissent: “Simply showed it (dent) to the Arbitrator;” No photos are a “red flag;” maybe

Arbitrator was being sarcastic!

February 2013 More App. Ct & More AMAMichael Arscott v. Con-Way Freight,12WC003876

• DA 1/10/2012• 57 yo freight truck driver• “Arthroscopic surgery to repair the meniscus”• “Respondent had Dr. Sanjay Patari, an orthopedist, perform an AMA Impairment Rating.” (report

admitted)• (i) PPI rating of 20% lower extremity, 8% whole person [Table 16-3; pg. 509; adjustment must have

been -1 to move to B position 20% for CDX Class 2 Meniscal injury Total (medial and lateral)]• (ii) usual employment• (iii) 57 years old on date of loss• (iv) regular job• (v) residual symptoms which are generally consistent with the surgery performed• Award: 20% loss of use of the left leg• Status: Review Decision Pending; N&E/No Hearing (Petitioner Review)

February 2013 More App. Ct & More AMARobert Riley v. Con-Way Freight,12WC011083, 13IWCC0759

• DA 12/05/2011• 46 yo truck driver sales representative• DX proximal fibular FX and ACL tear (R leg)• 2/27/2012 Dr. McIntosh performed ACL repair• (i)“8/31/2011 at the request of the claimant’s attorney, Dr. McIntosh prepared a PPI rating pursuant to

the AMA Guidelines (sic)… opined the Petitioner had 7% impairment of the extremity, 3% WPI. PX2, RX2”• (ii) returned to usual employment• (iii) 46 yo on date of loss• (iv) no evidence of diminished earning capacity• (v) stiffness, achiness, weather sensitivity, ladder difficulty “generally consistent with the surgery

reflected in the records of Dr. McIntosh” • Award: 27.5% loss of use of the left leg• Status: Respondent Review, Commission Decision Rendered 8-27-13, Affirm & Adopt (Final)

February 2013 More App. Ct & More AMACurtis Oltman v. Continental Tire, 12WC011777, 13IWCC0744• DA 1/31/2012• 49 yo labor trainer• Non-displaced fracture of the left “wrist” (R hand dominant)• Dr. Brown splinted and treated• (i) “3/15/2012 Dr. Brown prepared an AMA rating report in which he opined that the claimant had a

0% impairment at the level of the left wrist. RX2. Dr. Brown testified in deposition in support of his findings and treatment course, as well as the bases for his impairment rating. See generally RX1.”

• (ii) returned to usual and customary employment• (iii) 49 yo• (iv) continues to work as before the incident• (v) The claimant described some minor residual symptoms in his wrist• Award: 5% loss of use of the left hand• Status: Respondent Review; Commission Affirms & Adopts; CC Summons by Respondent 9-9-13

February 2013 More App. Ct & More AMATimothy Brown v. Con-Way Freight, 12WC004657

• DA 10/18/2011

• 51 yo freight truck driver sales representative

• Full thickness rotator cuff tear Left shoulder

• 12-16 -11 Dr. Davito performed rotator cuff repair surgery

• (i) “At the Respondent’s request, the claimant was examined by Dr. David Fetter, an orthopedist, on 9/11/2012. See RX 2. Following the examination, Dr. Fetter prepared a report including an AMA impairment rating, which he calculated to be 6% upper extremity impairment, which converted to 4% whole person impairment.”

• (ii) returned to his usual employment

• (iii) 51 years old

• (iv) continues to work in that position at the same rate of pay

• (v) “Claimant described some weakness and fatigue in the shoulder, with occasional swelling and pain. While the weakness is not well borne out in the records, the occasional discomfort is consistent with the undisputed surgery…though his treating orthopedist does not assess permanent disability or limitations.”

• Award: 10% loss MAW (would be about 20% arm due to Will County)

• Status: Arbitration Decision Rendered (Final)

February 2013 More App. Ct & More AMAMartha Mansfield v. Ball Chatham CSD, 12WC014648

• DA 11/3/2011• 58 yo bus driver and custodian• 3/6/12 Dr. Schopp performs left medial menisectomy and cyst decompression• (i) 6/15/12 Respondent’s IME Dr. Michael Lewis deposed: “impairment was 1% of a lower extremity…Dr. Lewis

acknowledged that impairment as defined by the Guides was not the same as disability...unable to produce intake form…focused on Petitioner’s condition at the time of the examination” (? Of MMI?)

• (ii) Extensive description of job duties; “given job duties PPD will be larger than individual who performs sedentary or desk work.”

• (iii) 58 yo “no testimony concerning how long she expected to continue to work”• (iv) Future earning capacity is “relatively undiminished”• (v) “Petitioner testified” weakness, pain, decreased range of motion, weather changes; Arbitrator find Petitioner

was credible; “corroborated by PT records”• “Not simply a calculation, but an evaluation of all the factors…No single factor” • Award: 17.5% loss of use of the left leg• Status: Arbitration Decision Rendered (Final)

March 2013 Recent Appellate Court CasesWood Dale Electric v. IWCC, 2013 IL App(1st) 113394WC• 2-11-13• Before addressing the issues raised by Wood Dale, we find need to address the question of our own

jurisdiction. Although neither party raises a jurisdictional issue, we have a duty to consider our jurisdiction and to dismiss this appeal if our jurisdiction is lacking… However, there lies an important distinction between the typical remand order and the circuit court's remand order in this case: here, the remand order was entered in excess of the circuit court‘s jurisdiction. ..The circuit court did not, however, enjoy jurisdiction over any issues relating to the claimant's right to the pension benefits themselves, as such matters are not governed by the Act… When a court acts beyond its limited jurisdiction, the portion of the judgment that exceeds the court's jurisdiction must be considered void and must be vacated.

• The parties agree that Wood Dale presents us with an issue of statutory interpretation. The interpretation of a statute is a issue of law, and we review it de novo… Here, the parties do not dispute that the pension payments, unlike those in Tee-Pak and Elgin, are the result of normal pension retirement benefits, wholly unrelated to the claimant's workers’ compensation accident. Accordingly, under the rule in Tee-Pak and Elgin, those payments cannot entitle Wood Dale to a credit against its liability under the Act.

• In the alternative to its credit argument, Wood Dale asserts that the claimant should not be entitled to a wage differential benefit under the Act because he has voluntarily removed himself fromthe work force by electing to retire. We disagree.

March 2013 Recent Appellate Court CasesTony L. Curtis v. IWCC & Village of Lansing, 2013 IL App (1st) 120976WC• On appeal, Petitioner argues that the Commission erred in denying his request for additional TTD benefits for the interval

of temporary disability that followed his causally-connected surgery. According to Petitioner , section 19(h) of the Act does not apply to TTD benefits.

• In light of the foregoing, we find that Petitioner’s petition is untimely under section 19(h). With an exception not relevant here, section 19(h) clearly provides that either party may petition Commission to reopen an agreement or award under the Act for compensation paid in installments for a period of only 30 months after the date of the Commission’s decision.

• Petitioner contends that the term “disability” as used in section 19(h) was intended to refer only to permanency… we engage in statutory construction.

• When section 19(h) is read as a whole, it is clear that the legislature did not intend to limit the scope of section 19(h) only to permanency benefits. Rather, the statute was meant to cover TTD benefits as well. Accordingly, as Petitioner’s position to the contrary finds no support in the statute, and we reject it.

• Petitioner filed his request for additional TTD benefits pursuant to section 8(a) of the Act. As the Commission correctly noted, however, section 8(a) governs medical expenses, not TTD benefits, and there is no provision in section 8(a) that provides for the relief Petitioner requests…For the reasons set forth above, we affirm the judgment of the circuit court of Cook County, which confirmed the decision of the Commission.

March 2013 Recent Appellate Court CasesCTA v. IWCC,2013 IL App (1st) 120253WC• At issue is whether the Commission erred in finding that the claimant established a compensable

psychological injury under the "mental-mental injury" theory that our supreme court announced in Pathfinder• However, relying upon this court's decision in General Motors Parts Division 168 Ill. App. 3d 678 (1988), the

employer argues that a claimant may recover under Pathfinder only if she proves that a sudden, severe emotional shock caused her to suffer a psychic injury that was "immediately apparent.”…We disagree. As a preliminary matter, we find General Motors inapposite. The case at bar involves a claim of psychological injuries stemming from a single, traumatic, work-related incident. Accordingly, it falls squarely within the ambit of Pathfinder

• General Motors, on the other hand, involved a claim of psychological injuries that appeared to have arisen gradually from a variety of factors

• Pathfinder does not compel the claimant to prove, in addition ,that the psychological injury resulting from the emotional shock was "immediately apparent.”Under Pathfinder, the emotional shock needs to be sudden not the ensuing psychological injury

• The Commission‘s finding that the claimant's delay in obtaining medical treatment was not a bar to recovery given her credible testimony and Dr. Kelley's unrebutted psychological opinion was not against the manifest weight of the evidence

April 2013 Utilization ReviewTime Frame for Initial UM Decision, WCUM - 17 - Prospective Review Timeframes

• For prospective review, the organization issues a determination:

• (a) As soon as possible based on the clinical situation, but in no case later than 72 hours of the receipt of request for a utilization management determination, if it is a case involving urgent care; or

• (b) Within 15 calendar days of the receipt of request for a utilization management determination, if it is a non-urgent case.

• (c) For non-urgent cases this period may be extended one time by the organization for up to 15 calendar days:

• (i) Provided that the organization determines that an extension is necessary because of matters beyond the control of the organization; and

• (ii) Notifies the worker, prior to the expiration of the initial 15 calendar day period of the circumstances requiring the extension and the date when the plan expects to make a decision; and

• (iii) If a worker fails to submit necessary information to decide the case, the notice of extension must specifically describe the required information, and the worker must be given at least 45 calendar days from receipt of notice to respond to the plan request for more information.

April 2013 Utilization Review“Case Involving Urgent Care”• Case Involving Urgent Care: Any request for a utilization management determination with

respect to which the application of the time periods for making non-urgent care determinations a) could seriously jeopardize the life or health of the consumer or the ability of the consumer to regain maximum function, orb) in the opinion of a physician with knowledge of the consumer’s medical condition, would subject the consumer to severe pain that cannot be adequately managed without the care or treatment that is the subject of the case. (Note: This definition is derived from the Department of Labor’s definition of “claim involving urgent care.”)

• Interpretive Note for term “Case Involving Urgent Care”:While the URAC standards are silent on the methods by which a claim is determined to be a “case involving urgent care,” the Department of Labor claims regulation (29 C.F.R. § 2560.503-1(m)(1)) specifies that whether a claim is a “claim involving urgent care” is to be determined by an individual acting on behalf of the health benefits plan applying the judgment of a prudent layperson who possesses an average knowledge of health and medicine. Any claim that a physician with knowledge of the claimant's medical condition determines is a “claim involving urgent care” shall be treated as a “claim involving urgent care.

April 2013 Utilization Review“Peer Clinical Review”• WCUM - 13 - Peer Clinical Review Cases• The organization conducts peer clinical reviews for all cases where a certification is not

issued through initial clinical review or initial screening. (Mandatory)• WCUM - 14 - Peer Clinical Reviewer Qualifications• Individuals who conduct peer clinical review:• (a) Are appropriate health professionals; (Mandatory)• (b) Are qualified, as determined by the medical director or clinical director, to render a

clinical opinion about the medical condition, procedures, and treatment under review; and (Mandatory)

• (c) Hold a current and valid license: (Mandatory)• (i) In the same licensure category as the ordering provider; or• (ii) As a doctor of medicine or doctor of osteopathic medicine.

April 2013 Utilization ReviewRecent Appellate Court Cases• Elite Staffing v. IWCC, No. 1-11-3253WC, 12-28-12 (Rule 23):“Claimant asks us to impose

sanctions against respondent pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) for bringing a frivolous appeal. Claimant contends that the instant appeal was not undertaken in good faith and was only intended to cause unnecessary delay, needlessly increasing the cost of litigation of this case. However, given the conflicting medical evidence of record, as well as the utilization review report, we decline claimant's request for sanctions.”

• Reyes v. IWCC, No.2-11-0715WC, 6-25-12 (Rule 23): Employer points to the utilization review which certified only 12 chiropractic sessions as medically necessary; however, a utilization review is not definitive and, instead, must be considered "along with all other evidence and in the same manner as all other evidence, in the determination of the reasonableness and necessity of the medical bills or treatment." 820 ILCS 305/8.7(i) (West 2008)…Although other evidence was conflicting, it was within the province of the Commission to resolve those conflicts… The Commission appropriately weighed the conflicting evidence and an opposite conclusion is not clearly apparent.

April 2013 Utilization ReviewRecent Appellate Court Cases• Edmar Heating v. IWCC, No. 2-10-1250WC (Rule 23): “The employer argues that the Commission abused its discretion

when it upheld the arbitrator's decision to exclude the employer's Exhibit No. 10, which was a report that stemmed from the utilization review performed of the claimant's chiropractic treatment. During the June 15, 2009, arbitration hearing, the claimant's counsel objected to the report on hearsay grounds, and the arbitrator sustained the objection and excluded the report. Although the employer had sent the claimant a letter on February 16, 2009, communicating its intent to introduce the utilization review report into evidence during the hearing, the claimant did not indicate that he was objecting to the report until the employer's counsel moved to introduce it at the hearing four months later. The employer argues that the claimant waived any objection to the admission of the report by this dilatory conduct and that the report should have been admitted. We disagree.”

• “The employer has presented no authority for the proposition that a party to a workers' compensation proceeding waives an objection to the admission of evidence, even though the party objected at the time the opposing party moved for its admission, merely because the party failed to announce its intention to object to the evidence before the hearing. … The claimant's objection to the admission of the utilization review report was timely and proper. Moreover, because the claimant had not stipulated to the admission of object to its admission on hearsay grounds and should have prepared to meet such an objection. At a minimum, the employer could have moved for a continuance so the author of the report could testify and be cross-examined at the hearing. The employer failed to do so. Its only argument in favor of admission was that the claimant had failed to object prior to the hearing. The employer does not argue that the report was not hearsay or that it fell within a hearsay exception. Accordingly, the Commission's decision to exclude the report was not an abuse of discretion.”

April 2013 Utilization ReviewRecent Commission Decisions• Redmon v. GSI, 13IWCC0262 (3-18-13): A Peer Review Report was prepared on March 2, 2012, by Dr. Darryl Thomas, a

Texas board certified orthopedic surgeon, with regard to the medical necessity of a left De Quervain's release. Dr. Thomas reviewed various treatment records pertaining to Petitioner and was of the opinion Petitioner sustained an injury on September 15, 2007, secondary to repetitive trauma. Dr. Thomas determined that the proposed surgery was not necessary as Petitioner had not first attempted a three month trial of conservative care and splinting as recommended by Official Disability Guidelines. According to Dr. Thomas, Petitioner had been non-compliant with splinting and there was no evidence of recent conservative care other than an injection in November of 2011. (Res. Ex. 10)…Respondent is ordered to authorize and pay for three months of conservative treatment (splinting and injections) as recommended by Dr. Thomas, Respondent's peer review physician. Should conservative treatment not resolve Petitioner's symptoms (as Dr. Thomas acknowledged it is generally only successful in the majority of cases), Respondent is ordered to authorize and pay for surgery to Petitioner's left hand and wrist as recommended by Dr. Baker, including all necessary and reasonable pre-surgical and post-surgical care.

• Dicanio v. Cook County, 13IWCC0208 (2-27-13): Utilization review was performed by both an orthopaedic surgeon and a chiropractor, and neither found any reason to continue the treatments beyond the initial six visits. Upon review of the medical record, the Arbitrator notes no evidence of improvement, either subjective or objective in nearly eighteen months of treatment…The Arbitrator finds that any treatment by Rehabilitation, Inc. after 06/06/08, the last date for which there is any objective evidence of improvement to be unreasonable and unnecessary, and Respondent is not liable for those bills. The bills for which Respondent is liable shall be paid pursuant to the medical fee schedule and Respondent shall receive credit for all amounts paid.

April 2013 Utilization ReviewRecent Commission Decisions• Hernandez v. Tyson, 13IWCC0182 (2-20-12): Respondent submitted a Coventry utilization review regarding the medical

necessity of Dr. Ramirez's treatment. Chiropractic treatment and physical therapy from September 27, 2007 through November 8, 2007 was not certified. Dr. Ramirez filed a three page appeal of the non certification. Coventry responded with another non certification (RX1)…Although he was injured at work, and although his current condition of ill-being is causally related to the accidental injury, he received excessive unnecessary medical treatment …. Petitioner's testimony regarding that treatment was unconvincing. Dr. Ramirez's testimony was unpersuasive. Respondent has previously authorized payments of $ 10,738.01 of $34,583.00 in billings. Based upon the foregoing, $ 10,738.01 of Neck and Back Clinic billing is awarded, but no more…Respondent has relied upon medical opinions from Physicians Immediate Care, thereafter from utilization review, and thereafter from Dr. Phillips in its denial of benefits. Petitioner has not met his burden of proof on this issue. Based upon the foregoing, the Arbitrator finds that Petitioner's claim for penalties and attorneys' fees is denied.

• Escoto Lopez v. Hilton, 13IWCC0152 (2-1513): Pursuant to her attorney's direction, the petitioner saw Dr. Giri Gireesan on September 30th, whose assessment was discogenic back pain. ..She returned to Dr. Gireesan on November 1st and on the 7th, at which time he opined that an MRI of her lumbar spine revealed a mild diffuse disc bulge with a superimposed small, shallow central disc protrusion with annular fissure at L4-5 and mild bilateral facet degenerative changes. Dr. Gireesan recommended lumbar epidural steroid injections. Utilization reviews by Dr. Lisa Gill on November 16th and December 23rd was a denial of certification of the epidural injections because of the negative radicular findings and studies…The petitioner failed to prove that the lumbar epidural steroid injections recommended by Dr. Gireesan are reasonable medical care necessary to relieve the effects of the work injury.

April 2013 Utilization ReviewRecent Commission Decisions• Santoyo v. Scelebrations, 13IWCC0129 (2-7-13): While the Commission finds that Petitioner's lumbar and knee conditions

were related to her work accident, the Commission is not prepared to award medical expenses. The Commission notes that because the Arbitrator found no causation, he did not address the issue of the reasonableness or necessity of the medical charges, which at least on first glance appear to be unusually high. This case was tried under Section 19(b). Therefore, the case has to be remanded in any event for a determination of any additional temporary total disability benefits and/or permanent partial disability benefits, perhaps with the benefit of a utilization review analysis. Therefore, the Commission remands the case to the Arbitrator to consider the appropriate award of medical expenses.

• English v. Cook County, 13IWCC0109 (2-7-13): The Commission affirms the Arbitrator's granting of the § 8(a) Petition, but modifies the amount awarded. Dr. Markarian made a blanket opinion that the post-operative treatment is entirely appropriate, medically necessary and within the standard of care, but he did not opine why. The GENEX Utilization Reviewers, Physician Advisors Dr. Trotter and Dr. Kraft, base their opinions on guidelines and reviewed medical records as noted in their reports. The Commission gives more weight to the opinions of Dr. Trotter and Dr. Kraft than those of Dr. Markarian regarding Petitioner's post-operative care. For those charges before June 2009, the Commission awards 24 physical therapy sessions from October 17, 2008 through December 10, 2008 and 10 work conditioning sessions from March 23, 2009 through April 3, 2009, as per the GENEX Utilization Review reports.

May 2013 Mental/MentalDiaz v. IWCC, 2013 IL App (2d) 120294 WC• This case requires us to consider the proof necessary for a claimant to recover in a workers' compensation claim for a

psychological disability in the absence of a physical injury, a type of case commonly known as a "mental-mental" claim. The sole issue raised by the claimant in this appeal is whether, as a police officer, he was improperly held to a higher standard of proof than workers in other occupations. We hold, as a matter of law, that the Commission applied the wrong standard to this claim. Accordingly, we reverse the decision of the Commission and remand for further proceedings.

• When there is no question of inference or weight to be given evidence, and all the Commission does is apply the law to the undisputed facts, review is de novo… Second, the issue in this case is whether the Commission held the claimant to a higher standard of proof than is required in a mental-mental claim. …Whether a claimant must prove certain elements to establish a compensable claim is purely a question of law and it is therefore reviewed de novo.

• Commission did not find that the claimant failed to prove any of the Pathfinder requirements that he suffered a sudden, severe emotional shock that was traceable to a definite time and place and that caused his psychological injury. Instead, the Commission adopted "a more narrow construction of Pathfinder as expressed in the General Motors decision." The claimant asserts that the Commission misapplied General Motors' interpretation of Pathfinder.

May 2013 Mental/MentalDiaz v. IWCC, 2013 IL App (2d) 120294 WC

• Read in context, General Motors uses the phrase "an uncommon event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment" to distinguish compensable claims from a mental disability that arises from the ordinary job-related stress common to all lines of employment.

• Nothing in Pathfinder requires that the "sudden, severe emotional shock" which must be proved should be considered within the context of the claimant's occupation or training.

• The Commission applied an incorrect standard of proof and failed to provide compensation to an injured worker in a compensable mental-mental claim. The claimant suffered a sudden, severe emotional shock on May 29, 2007, that resulted in his developing posttraumatic stress disorder. The accident arose out of and in the course of the claimant's employment, and his condition of ill-being was causally related to the accident. The psychological harm the claimant suffered is compensable under the Act.

May 2013 Mental/MentalDiaz v. IWCC, 2013 IL App (2d) 120294 WC Dissent

• I respectfully dissent• In reversing the Commission in this case, the majority rejects General Motors' interpretation of

Pathfinder to the extent it suggests the determination of whether a sudden, severe emotional shock occurred must be "considered within the context of the claimant's occupation or training

• I believe General Motors is a fair interpretation of our supreme court's decision in Pathfinder. The claimant's occupation and training are part of the circumstances that must be considered in determining whether an event causing a sudden, severe shock has occurred. Naturally, for an event to cause sudden, severe shock, it must be out of the normal work routine; otherwise it would not cause a shock

• Additionally, while I agree with the de novo standard of review used in this case, I note this court utilized the manifest-weight-of-the-evidence standard of review in a recent mental-mental case where the facts were undisputed. See Chicago Transit Authority 2013 IL App (1st) 120253WC… I find the court's application of the different standards of review inconsistent and disagree with Chicago Transit Authority's reasoning for applying a manifest-weight-of-the-evidence standard.

June 2013 Update (Legislative)HB3390; PA98-0040• Effective immediately; signed into law 6-28-13• Notice of Intent to File for Review in Circuit Court: “The changes made

to this subdivision (f)(1) by this amendatory Act of the 98th General Assembly apply to any Commission decision entered after the effective date of this amendatory Act of the 98th General Assembly.”• IWCC Form IC25• Affidavit

June 2013 Update (Legislative)HB3390 Interpreter • (820 ILCS 305/9) (from Ch. 48, par. 138.9)

Sec. 9. Any employer or employee or beneficiary who shall desire to have such compensation, or any unpaid part thereof, paid in a lump sum, may petition the Commission, asking that such compensation be so paid….Prior to approval of any pro se Settlement Contract Lump Sum Petition, the Commission or an Arbitrator thereof shall determine if the unrepresented employee, if present, is able to read and communicate in English. If not, it shall be the responsibility of the Commission to provide a qualified, independent interpreter at the time such Petition is heard, unless the employee has provided his or her own interpreter.

June 2013 Update (Legislative)HB3390,Arbitrator Personnel Code References

• Sec. 14…Each arbitrator appointed after June 28, 2011 after November 22, 1977 shall be required to demonstrate in writing and in accordance with the rules and regulations of the Illinois Department of Central Management Services his or her knowledge of and expertise in the law of and judicial processes of the Workers' Compensation Act and the Occupational Diseases Act… The All arbitrators shall be subject to the provisions of the Personnel Code, and the performance of all arbitrators shall be reviewed by the Chairman on an annual basis. The changes made to this Section by this amendatory Act of the 97th General Assembly shall prevail over any conflict with the Personnel Code. The Chairman shall allow input from the Commissioners in all such reviews.

June 2013 Update (Legislative)HB3390,WC Handbook• Sec. 15a. The Beginning January 1, 1981, the Commission shall prepare and

publish a handbook in readily understandable language in question and answer form containing all information as to the rights and obligations of employers and employees under the provisions of this Act. Upon receipt of first report of injury, as provided for in subsection (b) of Section 6 of this Act, the Commission shall determine that a copy of the handbook has been forwarded to the injured employee or his beneficiary. The handbook shall be made available free of charge to the general public and be maintained on the Commission's Internet website. The Commission shall provide informational assistance to employers and employees regarding their rights and obligations under this Act and the process and procedure before the Commission.

June 2013 Update (Legislative)HB3390,Circuit Court Review• Section 19(f)(1)…A proceeding for review shall be commenced within 20 days of the receipt of notice of the decision

of the Commission…The Commission shall not be required to certify the record of their proceedings to the Circuit Court, unless the party commencing the proceedings for review in the Circuit Court as above provided, shall file with pay to the Commission notice of intent to file for review in Circuit Court. the sum of 80¢ per page of testimony taken before the Commission, and 35¢ per page of all other matters contained in such record, except as otherwise provided by Section 20 of this Act. Payment for photostatic copies of exhibit shall be extra. It shall be the duty of the Commission upon such filing of notice of intent to file for review in the Circuit Court payment, or failure to pay as permitted under Section 20 of this Act, to prepare a true and correct typewritten copy of such testimony and a true and correct copy of all other matters contained in such record and certified to by the Secretary or Assistant Secretary thereof. The changes made to this subdivision (f)(1) by this amendatory Act of the 98th General Assembly apply to any Commission decision entered after the effective date of this amendatory Act of the 98th General Assembly. No In its decision on review the Commission shall determine in each particular case the amount of the probable cost of the record to be filed as a part of the summons in that case and no request for a summons may be filed and no summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court proof of payment by filing with the Commission of the notice of the intent to file for review in the Circuit Court a receipt showing payment or an affidavit of the attorney setting forth that notice of intent to file for review in the Circuit Court payment has been given in writing made of the sums so determined to the Secretary or Assistant Secretary of the Commission, except as otherwise provided by Section 20 of this Act.

June 2013 Update (Legislative)HB3390,Transcript Deposit Fund• Sec. 19a. Money received by the Commission pursuant to subsection (f) of

Section 19 of this Act shall be paid into a trust fund outside the State Treasury and shall be held in such fund until completion of the record for which the payment was made. The Secretary of the Commission shall be ex-officio custodian of such trust fund which shall be used only for the purpose specified in this section. Upon completion of the record the Secretary shall pay the amount so held to the person entitled thereto for preparation of the record. Within 60 days after the effective date of this amendatory Act of the 98th General Assembly, the Secretary of the Commission shall transfer all remaining funds to the Injured Workers' Benefit Fund for the purpose of paying claims from injured employees who have received a final award for benefits from the Commission against the employer in Fiscal Year 2013.

June 2013 Update (AMA Case)Frederick Williams v. Flexible Staffing, 11WC046390; 13IWCC0557

• Unanimous decision 5-29-13 • “Timely Petition for Review having been filed by the Respondent

herein… after considering the issues of nature and extent, Section 8.1b, Section 19(e)…modifies the Decision of the Arbitrator as stated below and otherwise affirms and adopts the Decision of the Arbitrator…”• “The Commission modifies the Arbitrator’s Decision, decreasing

Petitioner’s partial disability award from 30% to 25% loss of use of the right arm pursuant to Section 8(e) of the Act. All else is affirmed and adopted”• Status: CC Summons by Respondent, 6-21-13

June 2013 Update (Medical Bills)Springfield Urban League v. IWCC, 2013 IL App (4th)120219WC• The employer next argues that this court must remand to the Commission for a determination of a dollar

amount owed to claimant pursuant to the medical fee schedule. We disagree.• The employer does not argue claimant failed to establish that her medical bills were necessary and causally

connected to her work injury. The employer did not object to the introduction of claimant's medical bills. The employer argues it cannot be ordered to pay medical expenses according to the fee schedule "when the fee schedule amount is unknown.“

• Pursuant to the Act, the employer must adjust the medical bills to conform to the fee schedule of section 8.2 of the Act... We note in response to the employer's concerns regarding coding and bundling that the fee schedule requires that services be reported with the Current Procedural Terminology (CPT) codes and in accordance with the HCPCS Level II, U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244 (2006), no later dates or editions. See 50 Ill. Adm. Code 7110.90 (2012).

• The Commission's decision ordering the employer to "pay any unpaid, related medical expenses according to the fee schedule and provide documentation with regard to said fee schedule payment calculations to Petitioner," complies with the statutorily mandated procedures set forth in the Act. Therefore, we need not remand to the Commission for a determination of a dollar amount owed to claimant pursuant to the medical fee schedule.

July 2013 Traveling Employee & Wage DifferentialMlynarczyk v. IWCC,2013 Il App (3d) 120411WC• Unanimous, 5-30-13• We reverse the decision of the Commission and remand the matter to

the Commission to reinstate the arbitrator’s awards of medical expenses, TTD benefits, and PPD benefits.• With respect to the narrow issue of whether claimant is a traveling

employee, we agree with claimant that the de novo standard of review applies.• In the present case, claimant did not work at a fixed job site. Rather, her

duties required her to travel to various locations throughout the Chicago land area. As such, we find that she qualifies as a traveling employee.

July 2013 Traveling Employee & Wage DifferentialMlynarczyk v. IWCC, 2013 Il App (3d) 120411WC

• The test whether a traveling employee’s injury arose out of and in the course of employment is the reasonableness of the conduct in which she was engaged at the time of the injury and whether that conduct might have been anticipated or foreseen by the employer… manifest weight

• In this case, the Commission determined that even if it had found claimant to be a traveling employee, it would still deny compensation. We conclude that this finding is against the manifest weight of the evidence…Since claimant is a “traveling employee,” her exposure to the hazards of the streets is, by definition, greater quantitatively than that of the general public, as long as her conduct at the time of the injury was reasonable and foreseeable to the employer

• In so holding, we find misplaced the Commission’s concern that such a holding would render compensable “ANY movement by [claimant] at any time during the day or night.” (Emphasis in original.) The Commission does not explain why it believes this would be the case, and we note that an employee seeking benefits under the Act would still be required to establish that his injury arose out of and in the course of his employment as well as the reasonableness of the conduct…

July 2013 Traveling Employee & Wage DifferentialUnited Airlines v. IWCC, 12 Il App (1st) 121136WC

• Unanimous decision, 6-3-13• For the reasons which follow, we reverse the judgment of the circuit court and reinstate

the decision of the Commission• The parties do not dispute that the claimant is entitled to wage differential benefits; they

dispute only the amount and duration of the award• The Commission's conclusion, that section 8(d)(1) requires the wage differential award to

be calculated as of the date of the hearing, is a matter of statutory construction, which is a question of law. Issues of law are considered de novo on review without deference to the Commission's determination… The statute, under its plain and ordinary language, does not contemplate multiple figures to be computed and awarded at future dates. Therefore, we agree with the Commission's interpretation of section 8(d)(1), that it requires the wage differential to be determined as of the date of the arbitration hearing

July 2013 Traveling Employee & Wage DifferentialUnited Airlines v. IWCC, 12 Il App (1st) 121136WC

• In so holding, we reject UAL's argument that the Commission's interpretation of section 8(d)(1) disregards the supreme court's decision in Cassens… In our view, under Cassens and section 8(d)(1), the parties have the ability to present relevant evidence regarding the duration of the claimant's physical or mental disability and the claimant's earning capacity, including factors such as wage increases, overtime, and increased hours of work. However, the award must be calculated as of the date of the arbitration hearing. As Cassens noted, when considering the average wages of the past and present positions and factors beyond wages, awards may be imperfect.

• In this case, UAL presented evidence of the claimant's future earning capacity, including evidence of the 2005-2009 SOR wage schedule, which included step increases over a ten-year period. It was the duty of the Commission to factor this evidence, along with evidence pertaining to the duration of the claimant's disability, into its determination of the award as of the date of the hearing. The Commission determined that as of the date of the arbitration hearing, the claimant should receive $277.06 per week, finding that he had been earning $21 per hour as a ramp service worker and $10.61 per hour as an SOR…we cannot hold that the Commission's finding is against the manifest weight of the evidence.

August 2014Proposed Decisions• 1. Always submit your proposed decision in Microsoft

Word format; generally two weeks after proofs are closed. No PDFs.

• 2. Send one copy to the Arbitrator via e-mail, and then send a hard copy via snail mail or by hand delivery.

• 3. Use the most recent decision form available at http://www.iwcc.il.gov/forms.htm#ARB . For instance, if it’s a 19(b), use that form and so on.

• 4. Please do not forget to include the AMA language, if appropriate.

• 5. Proofread your document.

• 6. Use page numbers.

• 7. Refer to an exhibit by citing the exhibit number and page number. (E.g. PX #1 p.3)

• 8. Cite cases correctly, including the Lexis cite. A brief explanation why the case is being cited is vital. Attach a copy of the case, if necessary.

• 9. Address each issue listed in dispute on the stipulation sheet. Alternative award paragraphs are acceptable.

• 10. Acknowledge obvious problem(s) in your case; do not sweep them under the rug. The decision should reflect that “the Arbitrator” has weighed both sides of the evidence.

• 11. Please make sure that benefit calculations are correct; show your math for all awards, especially penalties.

• 12. Remove advocacy language out of the decision (e.g. “obviously,” “liar,” “clearly”).

• 13. Avoid sans-serifed fonts, studies have shown that they are less professional in appearance. The default professional font is “New York Times.” Use a 12 pt. font and double-space your document.

• 14. Never use backslashes in the body of your document (e.g. 08/14/13).

• 15. Never refer to exhibits that were excluded at trial.

September 2013 AMA Impairment Rating (Young Lawyers)Chapter 1: Conceptual Foundations and Philosophy Impairment vs. Disability

• Impairment: a significant deviation, loss, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease.•Disability: activity limitations and/or participation restrictions

in an individual with a health condition, disorder or disease.“The relationship between impairment and disability remains both complex and difficult, if not impossible, to predict.” (page 5) “Impairment and disability are complex concepts that are not yet amenable to evidence-based definition.” (page 9)

September 2013 AMA Impairment Rating (Young Lawyers)Chapter 2: Practical Application of the Guides

- Only permanent impairment may be rated according the Guides, and only after MMI.

- The Guides does not permit the rating of future impairment.- “Although treating physicians may perform on their patients, it is

recognized that these are not independent and therefore may be subject to greater scrutiny.” (page 23)

September 2013 AMA Impairment Rating (Young Lawyers)Highest Rating Must Be Used• The method producing the higher rating must be used. (Page 20)• EXAMPLE: With ACL and meniscus tear, ACL gives option of Class 0,

0% impairment.• Meniscus tear 1-25%, cannot be 0%.• Look to see if meniscus tear will offer highest rating even with ACL

tear.

September 2013 AMA Impairment Rating (Young Lawyers)What the AMA 6th Edition Does Not Take Into Account

• Restrictions or Functional Capacity Evaluation. (page 6)• Future problems (Prospective medical treatment, Osteoarthritis,

arthritis, joint replacements, deterioration). (page 20, Table 2-1, #11)• Multiple surgeries or number of surgeries or surgery at all.• Multiple injuries (full thickness rotator cuff tear with torn labrum and

impingement). (page 387)• Impact on ability to work. “In some cases, the referring source may ask

the physician rater to assess the medical impairment’s ability to work. This is beyond the scope of the guides.” (page 24)

September 2013 AMA Impairment Rating (Young Lawyers)Pain and Subjective Complaints• 6th Edition takes into account pain and subjective complaints.• The Functional History uses the QuickDash for upper extremities, Lower Limb

Questionnaire for lower extremities, Pain and Disability Questionnaire for spinal injuries. • These questionnaires rely on subjective and pain complaints.• “The Guides is based on objective criteria. Subjective complaints (e.g, fatigue,

difficulty concentrating, sleep difficulties, and weakness) when not accompanied by demonstrable clinical signs or other independent, measurable abnormalities are generally not given impairment ratings.” (page 24)• Functional History is based on subjective reports that are attributable to

impairment. (page 406)

September 2013 AMA Impairment Rating (Young Lawyers)The Components of a 6th Edition Impairment Rating

(1) Diagnosis;Grade Modifiers:• (2)Functional History;• (3) Physical Examination;• (4) Clinical Studies;(5) Impairment Calculation and Rating.Five part process – (1)determine diagnosis, (2)-(4) then add or subtract grade modifiers, (5) finally calculate rating.

October 2013 Case At Every Level Gruszeczka v. IWCC, 2013 IL 11412• Holding: Where a workers’ compensation claimant’s request for circuit court review of an

Industrial Commission decision was mailed within the 20days called for by statute, but was not received by the clerk of circuit court until the twenty-fourth day, the statute’s ambiguity was resolved by applying the “mailbox” rule to hold that the filing was timely and that subject matter jurisdiction in the circuit court was not lacking; if this construction is not what the legislature intended, it needs to clearly so set forth.

• The interpretation of a statute is a question of law that we review de novo.• Unlike the appellate court, we do not believe that this question can be answered merely by

consulting a dictionary.• Alliance argues that Kelly and Wilkins apply here because circuit court review of a Commission

decision is a “new action” with a “20-day statute of limitations.” We disagree with this characterization and find that the Kelly/Wilkins test leads inescapably to the conclusion that the date of mailing should control when a party seeks judicial review of a Commission decision. Clearly, when a party seeks review of a Commission decision in the circuit court, the party is not instituting an entirely new cause of action.

October 2013 Case At Every LevelTiburzi Chiropractic v. Kline & Rovey 2013 IL App (4th) 121113 • Pursuant to the Act, the employer must adjust the medical bills to conform to the fee schedule found in section

8.2. 820 ILCS 305/8.2 (West 2010). "Except as provided under subsections (e-5), (e-10), (e-15), and (e-20), a provider shall not bill or otherwise attempt to recover from the employee the difference between the provider's charge and the amount paid by the employer or the insurer on a compensable injury." 820 ILCS 305/8.2(e) (West 2010).

• In the case sub judice, plaintiff relies on the exception in subsection (e-20) (820 ILCS 305/8.2(e-20) (West 2010)), which states as follows: "Upon a final award or judgment by an Arbitrator or the Commission, or a settlement agreed to by the employer and the employee, a provider may resume any and all efforts to collect payment from the employee for the services rendered to the employee and the employee shall be responsible for payment of any outstanding bills…

• We agree with defendant that plaintiff's compensable services under the Act are not recoverable…Contrary to plaintiff's argument, it did not treat defendant as a private-pay patient. Instead, plaintiff submitted its bill to defendant's workers' compensation insurance carrier.

• Accordingly, the trial court erred in awarding plaintiff a monetary judgment in the amount of $2,010.Although we find subsection (e-20) does not allow plaintiff to recover for compensable services in excess of the fee schedule, we find it does allow plaintiff to recover for services not compensable…Here, the workers‘ compensation insurer paid nothing for the 20 cold packs, each billed in the amount of $10. Thus, plaintiff is entitled to judgment in the amount of $200, plus costs.

October 2013 Case At Every LevelJulia Garcia v. Magid Glove,12 L 50560, Judge Robert Lopez Cepero, 9/23/2013

• The motion for a full 20% attorneys’ fee is hereby granted• No connection between Section 16a and Section 8(d)1• Set of prerequisite conditions not present in Section 8(d)1• Matter of law and statutory construction Section 16a does not apply to

8(d)1• Section 16a: “However, except as hereinafter provided in this Section, in

death cases, total disability cases and partial disability cases, the amount of an attorney's fees shall not exceed 20% of the sum which would be due under this Act for 364 weeks of permanent total disability based upon the employee's average gross weekly wage prior to the date of the accident…”

October 2013 Case At Every LevelLourdes Oliver v. Posen-Robbins School District, 13 IWCC 0297, 12 WC 017743• Similar to the decedent's spouse in Builder's Square, the Petitioner only offered conjecture as to what caused her to fall, failing to offer

evidence or information allowing the Arbitrator to form a reasonable inference to explain the accident. Petitioner's claim that she slipped and fell due to a coffee spill is based solely upon the smell of coffee on her pants later that night and her assertion that she noticed liquid on the floor from thirty (30) feet away. During her testimony, Petitioner admitted that she saw no brown discoloration on a floor where she slipped, despite the light colored flooring. Further, Petitioner testified that she did not notice any liquid around her when she was on the floor. She testified that she saw liquid on the floor from 30 feet away; and tried to avoid it as she walked closer to it.

Ms. Doris Sams also testified that she had been watching the area of the hallway where the accident happened for approximately three to five (3-5) minutes and remembered that the area was clear, with no defects on the ground or liquid spilled. The Arbitrator finds the testimony of Ms. Sams to be credible.

The testimony of Ms. Sams parallels the testimony of the coworker in Builder's Square. The coworker was a friend of the decedent and had no reason to have bias against her. Similarly, Ms. Sams testified that the Petitioner was well-respected at the school, indicating that Ms. Sams had no bias or reason to testify in an untruthful manner as to the conditions surrounding the Petitioner's fall. During her entirely testimony, Ms. Sams had no doubt that the area where Petitioner fell was clear and that there were no defects on the floor contributing to the accident. Based upon the testimony of Doris Sams, it is unlikely that the accident occurred in the way the claimant testified that it happened. Petitioner's testimony contradicts the testimony of Ms. Sams as Ms. Sams saw nothing spilled on the floor and Petitioner also admitted that she did not notice any discoloration on the floor. Petitioner did not allege that she slipped on coffee until the arbitration hearing, and she presented no evidence to link the coffee smell to the fall.

The Arbitrator finds that the Petitioner has not proven, by a preponderance of the evidence, that she sustained an accidental injury arising out of and in the course of her employment.

October 2013 Case At Every LevelNicholas Duncan v. Federal Whalen Moving, 12WC034355• DA 6/16/2012• 39 yo mover driver• Left knee arthroscopy & chondroplasty femoral condyle by Dr. Sumerville• (i) Dr. John Cherf; 1% LEI =1% WPI; “impairment does not equate to PPD;” PE grade modifier

is zero; did not consider SX report• (ii) “Arbitrator notes is medium to heavy work… more adversely affected…greater amount of

PPD”• (iii) “Younger individual…PPD will be more extensive …live with PPD longer”• (iv) “Appears to be diminished…RTW with restrictions …difficulty working as a mover…

presently works spotting trucks”• (v) “Credibly testified…pain…corroborated…diagnosis…necessity of subsequent surgery…

precedent pursuant to Section 19(e)”• Award: 25% loss of use of the Left leg (9-4-13)• Status: Arbitration Decision Rendered

October 2013 Case At Every LevelSteven Miller v. ConWay Freight, 12WC041880

• DA 9/14/2011• 49 yo sales rep/driver• Dr. Westin performs arthroscopic repair partially torn rotator cuff, acromioplasty, distal

clavicle resection• (i) Dr. Westin “by request of the Respondent;” 7% UEI; 4% WPI; “QuickDash…physical exam”• (ii) “Judicial notice…medium to heavy work…PPPD will be larger than…lighter work”• (iii) “Petitioner is 51…older individual…PPD may be more extensive …than younger

individual”• (iv) No evidence that FEC is diminished: RTW in full duty capacity• (v) “Surgery…pain noted…loss of range of motion…loss of strength”• Award: 12% whole person (60 weeks=23.72% arm)• Status: Respondent Review filed

November 2013 Judicial ActivismSisbro v. IIC, 207 Ill. 2d 193 (2003)• Reverses Appellate Court: “We disagree.”• Aggravation of pre-existing condition• To obtain compensation under the Act, a claimant bears the burden of showing,

by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment… It has long been recognized that, in preexisting condition cases, recovery will depend on the employee's ability to show that a work-related accidental injury aggravated or accelerated the preexisting disease such that the employee's current condition of ill-being can be said to have been causally-connected to the work-related injury and not simply the result of a normal degenerative process of the preexisting condition. • “need not be the sole causative factor, nor even the primary causative factor, as

long as it was a causative factor”

November 2013 Judicial Activism Vogel v. IIC, 354 Ill.App.3d 780 (2005)• DA:7-10-98; Fusion 3-12-99; MVA 6-9-99; RTW 3-13-00; MVA 4-17-00

& 6-18-00• Treater Boury:”MVA aggravated condition”• IME Skaletsky: biological reasons• App. Ct.: “When a claimant’s condition is weakened by a work-related

accident, a subsequent accident that aggravates the condition does not break the causal chain”

Workers’ Compensation Lawyers Association

MCLE Schedule 2014• Tuesday January 21, 2014 • Wednesday February 12, 2014

(Special 3 hour Professional Conduct beginning at 8:30am)• Wednesday February 26, 2014• Thursday March 27, 2014 • Tuesday April 15, 2014 • Wednesday May 14, 2014

• Thursday June 19, 2014• Tuesday July 8, 2014• Wednesday August 13, 2014 • Thursday September 11, 2014 • Tuesday October 7, 2014 • Wednesday November 5, 2014• Thursday December 4, 2014