Heyl, Royster, Voelker & Allen 28th Annual Claims Handling ... 2013/Heyl Royster - Workers... · May 22, 2013 IN RE: 28th Annual Claims Handling Seminar Dear Seminar Attendee: On

heylroyster.com

© 2013 Heyl, Royster, Voelker & Allen

Workers’ Compensation

Wednesday, May 22, 2013Bloomington, Illinois

PeoriaSuite 600Chase Building124 S.W. Adams StreetPeoria, IL 61602309.676.0400

Springfield3731 Wabash Ave.PO Box 9678Springfield, IL 62791217.522.8822

UrbanaSuite 300102 E. Main StreetPO Box 129Urbana, IL 61803217.344.0060

Rockford2nd Floor, PNC Bank Building120 West State St.PO Box 1288Rockford, IL 61105815.963.4454

EdwardsvilleSuite 100, Mark Twain Plaza III105 West Vandalia StreetPO Box 467Edwardsville, IL 62025618.656.4646

ChicagoSuite 1203, 19 S. LaSalle StreetChicago, IL 60603312.853.8700

Heyl, Royster, Voelker & Allen

28th Annual Claims Handling Seminar

May 22, 2013 IN RE: 28th Annual Claims Handling Seminar Dear Seminar Attendee: On behalf of the firm, I want to welcome you to our 28th Annual Claims Handling Seminar. Our attorneys have endeavored to prepare materials and presentations which will benefit you in your daily work, whether you are a claims professional, risk manager, corporate counsel or employer. Please be sure to fill out the database update and evaluation form which is with your materials. Your feedback regarding this seminar and your suggestions for future topics are very important to us. We also ask that you be sure to provide your e-mail address since we are now distributing via e-mail publications such as our Quarterly Review of Recent Decisions and Below the Red Line, our workers’ compensation newsletter, as well as others listed on the form. In order to receive Continuing Education verification, be sure to sign the attendance sheet at the registration table both before the session begins and immediately following the conclusion of our sessions this afternoon. Attendance verification certificates will be e-mailed only to those who sign the attendance sheet both at the beginning and end of the seminar. Once again, we appreciate your taking the time to join us today, and thank you for your confidence in selecting us as your attorneys. HEYL, ROYSTER, VOELKER & ALLEN By: Gary D. Nelson Managing Partner 309.676.0400 [email protected]

Workers’ Compensation agenda

Stay One Step aheadWednesday, May 22, 20131:00 - 4:30 p.M.BlOOmingtOn, illinOiS

1:00 p.m. Welcome & introductions – Craig young, peoria

1:05 p.m. symposium on taking advantage of ama ratings

1:05 p.m. Evaluating Impairment Using AMA Guides 6th Edition – dr. stephen Weiss, pMRI

1:40 p.m. reducing permanency exposure Using ama ratings – Craig young, peoria

2:00 p.m. Appeal Me! Meaningful Change Will Require Appellate Review – Brad elward, peoria

2:10 p.m. so Far so good – ama decisions and pro se Contract results – Toney Tomaso, Urbana & edwardsville; Joe Guyette, Urbana

2:35 p.m. Break

3:00 p.m. Business Perspective on Workers’ Compensation Reform – How Did We Get Here and Where We Would Like To Go – doug Whitley, president of Illinois Chamber of Commerce

3:25 p.m. 2011 Amendments – A View From The Trenches – Bruce Bonds, Urbana

3:40 p.m. Making Candid Camera Work: You Have The Goods on The Petitioner, How Do We Get It Into Evidence? – stacie Hansen, peoria

3:55 p.m. i Want a divorce! Can i obtain a resignation When the Work Comp Case is Settled – Kevin Luther, Rockford & Chicago

4:15 p.m. What Now?: Case Law Update – dan simmons, springfield

4:30 p.m. Cocktails & Hors d’oeuvres

PeoriaAttorneys:Bradford B. Ingram - [email protected] S. Young - [email protected] M. Voelker - [email protected] J. Manning - [email protected] L. Hansen - [email protected] M. Boyle - [email protected]

Dockets Covered:Bloomington • Peoria • Rock Island

SpringfieldAttorneys:Gary L. Borah - [email protected] R. Simmons - [email protected] O. Langfelder - [email protected] E. Siegel - [email protected]

Dockets Covered:Quincy • Springfield

UrbanaAttorneys:Bruce L. Bonds - [email protected] D. Flodstrom - [email protected] J. Peterson - [email protected] J. Tomaso - [email protected] E. Znaniecki - [email protected] K. Guyette - [email protected]

Dockets Covered:Herrin • Joliet • Mt. Vernon • Urbana

Rockford & ChicagoAttorneys:Kevin J. Luther - [email protected] A. Antonacci - [email protected] A. Welch - [email protected] J. Hughes - [email protected] A. Cordes - [email protected]

Dockets Covered:Chicago • Geneva • OttawaRockford • Waukegan • WheatonWoodstock • Rock Island

EdwardsvilleAttorneys:Toney J. Tomaso - [email protected] A. Telthorst - [email protected]

Dockets Covered:Collinsville

State of MissouriAttorney:James A.Telthorst - [email protected]

PeoriaSuite 600124 SW Adams St.Peoria, IL 61602309.676.0400

Springfield3731 Wabash Ave.PO Box 9678Springfield, IL 62791217.522.8822

Urbana102 E. Main St.Suite 300PO Box 129Urbana, IL 61803217.344.0060

RockfordSecond Floor120 W. State St.PO Box 1288Rockford, IL 61105815.963.4454

EdwardsvilleMark Twain Plaza III Suite 100105 W. Vandalia St.PO Box 467Edwardsville, IL 62025618.656.4646

ChicagoSuite 120319 S. LaSalle StreetChicago, IL 60603312.853.8700

www.heylroyster.com

Appellate:

Brad A. Elward - [email protected]

Dockets Covered: Statewide

Workers’ Compensation attorneys

Heyl, royster, Voelker & allen

The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

WORKERS’ COMPENSATION STAY ONE STEP AHEAD Welcome & Introductions ...................................................................................................................................... A-1

Evaluating Impairment Using AMA Guides 6th Edition ................................................................................ B-1

Reducing Permanency Exposure Using AMA Ratings .................................................................................. C-1

Appeal Me! Meaningful Change Will Require Appellate Review ............................................................. D-1

So Far So Good – AMA Decisions and Pro Se Contract Results ................................................................ E-1

Business Perspective on Workers’ Compensation Reform – How Did We Get Here and Where We Would Like To Go .......................................................................... F-1

2011 Amendments – A View From The Trenches .......................................................................................... G-1

Making Candid Camera Work: You Have The Goods on The Petitioner, How Do We Get It Into Evidence? ....................................................................................................................... H-1

I Want a Divorce! Can I Obtain a Resignation When the Work Comp Case is Settled ...................... I-1

What Now?: Case Law Update ................................................................................................................................ J-1


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WELCOME & INTRODUCTIONS

Presented and Prepared by: Craig S. Young

[email protected] Peoria, Illinois • 309.676.0400

Heyl, Royster, Voelker & Allen PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE • CHICAGO


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Craig S. Young

- Partner

Craig is Chair of the firm's workers' compensation practice group. Craig began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in 1985. He has spent his entire career with Heyl Royster and became a partner in 1992. He is recognized as a leading workers' compensation defense lawyer in the state of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. He has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves as Chair of the Workers' Compensation Committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organization and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award.

Public Speaking “Workers’ Compensation Reform in Illinois”

Presented in numerous locations (2012) “Elements of a Winning Workers’ Compensation

Program” Downstate Illinois Occupational Safety & Health Day (2010)

“Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers’ Compensation” Risk Control Workshop (2010)

“Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues” Lorman Education Services (2008)

Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only

five percent of lawyers in the state are named as Leading Lawyers.

Peoria County Bar Association 2008 Distinguished Community Service Award

Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Second Vice

President; Chair, Professional Standards Committee; Vice Chair, Budget Committee)

Defense Research Institute (Chair, National Workers' Compensation Committee)

Court Admissions State Courts of Illinois United States District Court, Central District of

Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court

Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude),

Bradley University, 1982

Learn more about our speakers at www.heylroyster.com

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EVALUATING IMPAIRMENT USING AMA GUIDES 6TH EDITION

Presented and Prepared by: Dr. Stephen Weiss

PMRI



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REDUCING PERMANENCY EXPOSURE USING AMA RATINGS

Presented and Prepared by: Craig S. Young




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REDUCING PERMANENCY EXPOSURE USING AMA RATINGS I. INTRODUCTION ........................................................................................................................................... C-3

II. WORKERS’ COMPENSATION COMMISSION INTERPRETATION OF AMA STATUTE ....................................................................................................................................... C-4

A. The Occupation of the Injured Employee .......................................................................... C-4 B. The Age of the Employee at the Time of the Injury ........................................................ C-5 C. The Employees Future Earning Capacity ............................................................................. C-5 D. Evidence of Disability Corroborated by the Treating

Medical Records ........................................................................................................................... C-5

III. PRACTICAL LESSONS LEARNED ............................................................................................................. C-6

A. Is an AMA Rating Needed in Every Case? ......................................................................... C-6 B. Who Should Perform the AMA Rating? ............................................................................... C-6 C. Are the Other Four Factors Important? ............................................................................... C-7 D. Pro se Strategies ........................................................................................................................... C-7 E. Pretrial Strategies ......................................................................................................................... C-8 F. Trial Strategies ............................................................................................................................... C-8

IV. CONCLUSION ............................................................................................................................................... C-9


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REDUCING PERMANENCY EXPOSURE USING AMA RATINGS I. INTRODUCTION

The reforms passed to the workers’ compensation statute in September of 2011 attracted great attention, but none more so than those portions of the legislation implementing the American Medical Association’s Guides to the Evaluation of Permanent Impairment. Some petitioner’s attorneys, led by the Illinois Trial Lawyers Association, consider the implementation of the AMA Guides as the beginning of the end of workers’ compensation in the state of Illinois. Countering this extreme position, some employers have assumed inclusion of the AMA Guides in the workers’ compensation statute would result in dramatic reduction in permanency amounts. Approximately a year and a half after implementation of the new statute, we have enough history to understand that both of these extreme positions are inaccurate. It is important to understand, however, the manner in which the AMA Guides can be used to reduce permanency exposures as compared to settlements and awards entered prior to adoption of the new statute. The pertinent portions of the reform legislation addressing the AMA Guides are contained in Section 8.1b (820 ILCS 305/8.1b). That section states:

a. A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” shall be used by the physician in determining the level of impairment.

The application of the AMA Guides to a permanency rating is identified further:

b. In determining the level of permanent partial disability, the Commission shall base its determination on the following factors: (i) the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records.

No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.

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II. WORKERS’ COMPENSATION COMMISSION INTERPRETATION OF AMA STATUTE

Very quickly following adoption of the workers’ compensation statute addressing AMA Guides, the Illinois Workers’ Compensation Commission began defining the statute. Early in the process, the commission addressed their interpretation of whether or not the new statutory language would require an AMA rating in every case. In a memo dated November 28th of 2011 from the Chairman of the Commission, it was stated that the commission had voted unanimously to provide the following recommendations to the arbitrators:

1. An impairment rating is not required to be submitted by the parties with a settlement contract.

2. If an impairment rating is not entered into evidence, the arbitrator is not precluded from entering a finding of disability.

While it is unclear under what authority the chairman issued this memo, especially in light of the statutory language indicating there shall be an AMA rating included in the establishment of permanent partial disability, this memo has been relied upon by petitioner’s attorneys to proceed forward with case resolution pursuant to settlement or trial absent an AMA rating. While the legal and appellate implications of this interpretation of the statute will be addressed elsewhere in these materials, for practical considerations, it is important to note that the current position of the Workers’ Compensation Commission is that an AMA rating is not necessary in every case, and it remains common for settlement contracts to be approved, and cases to be arbitrated without an AMA rating being put into evidence by either party. In those cases where AMA ratings are presented in conjunction with a settlement contract, or admitted into evidence at trial, it is clear the Industrial Commission is utilizing those ratings to reduce permanency exposures to some degree. While we are a long way away from establishment of a “new Q-Dex,” most arbitrators understand the purpose of implementing the AMA Guides was to move in the direction of some reduction in permanency amounts. The reduction seen thus far both with pro se settlement contracts, and with arbitration awards, will be addressed elsewhere in these materials. It is clear that in arriving at permanency determinations under the new statute, the arbitrators are relying on the statutory language which refers to four other factors beyond the AMA rating. In most situations when an arbitrator directly addresses an AMA rating, either in verbal comments, or in a decision, there are specific statements as to why the other four factors would result in a permanency finding higher than the AMA rating. While there is variance from arbitrator to arbitrator, some consistent trends have developed.

A. The Occupation of the Injured Employee

This factor obviously comes into play more significantly when the petitioner is involved in an occupation requiring physical labor. In the event the injury addresses a body part which is used significantly in the occupation, the arbitrators will often refer to this factor when attempting to

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support a higher permanency amount. On occasion, this factor can be relied upon to argue for a lower permanency amount when the occupation does not involve significant labor, or regular use of the body part in question.

B. The Age of the Employee at the Time of the Injury

This is a confusing factor, and the lack of consistency seen by the arbitrators in implementation of this factor demonstrates that confusion. Some arbitrators take the position this factor means a younger person should get a higher permanency award, since they would be living with the disability for a longer period of time. Other arbitrators take the opposite position and claim an older person has more difficulty healing and managing an injury or a restriction, and permanency amounts should be elevated based upon this factor when the petitioner is older. In fact, in many situations, the age of the petitioner has little or no bearing on the disability level and there are some arbitrators who accept this argument.

C. The Employee’s Future Earning Capacity

This factor is one often cited by the arbitrators in support of higher permanency determinations. Even in situations where the petitioner has been released to return to work without restriction, there is often mention of the fact the injury or disability could impact earnings in the future. It is always important to point out that such statements are speculative, and often unsupported by any evidence in the record. In the event the petitioner’s future earning capacity is diminished, section 8(d)(1) allows for a permanency award which contemplates that reduction in earning capacity. Solid advocacy can often eliminate the impact of this factor on a permanency determination.

D. Evidence of Disability Corroborated by the Treating Medical Records

This has emerged as the most utilized factor in addressing a permanency determination. Petitioner’s attorneys will often cite to the medical record to argue for increased disability, even when the AMA rating is low. In many cases, however, a very strong argument can be made that the medical records do not corroborate permanent disability. Most arbitrators are very likely to consider the medical records more closely, given the fact the statute now clearly defines this as one of the factors to be looked to in consideration of permanent disability. The positive result of this statutory structure for determination of permanent disability is that there is a decided trend downward in the permanency determinations as compared to those determinations prior to adoption of the statute. While it is abundantly clear the arbitrators are committed to permanency awards higher than the AMA rating, it is also clear they understand the purpose of the new statute was to reduce permanency awards in some fashion. It is also clear we now have a structure, with five factors to be considered, as opposed to an accepted “Q-Dex” permanency amount to be awarded to particular injuries, regardless of the true disability. Arbitrators are specifically noting each of the five enumerated factors, and effectively presenting

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evidence on each of these factors can make a difference in the ultimate permanency determination. III. PRACTICAL LESSONS LEARNED

A. Is an AMA Rating Needed in Every Case?

While the AMA issue presents many strategic concerns, the initial analysis of whether an AMA rating is needed on a particular case may be one of the most important strategic decisions. This decision will always be impacted by the strategy of the petitioner’s attorney. Some petitioner’s attorneys take the position they will do everything they can to avoid the admission of an AMA rating. Other petitioner’s attorneys understand the statutory requirement, and on their own as a burden of proof matter, are making sure an AMA rating is admitted in every case. Some understanding of how the petitioner will approach the AMA issue must always enter into the defense strategy.

One issue to consider when deciding on an AMA rating is whether or not the respondent intends to allege the AMA issue as a burden of proof element to be satisfied by the petitioner. In the event you have a case which you are trying to position for appeal on the “shall” language in the statute, you clearly will not be pursuing an AMA rating. Although the best argument is that the statute requires an AMA rating as a burden of proof element for the petitioner, the respondent needs to be aware that by obtaining their own AMA rating, that evidence will be before the arbitrator and in essence, the respondent will have satisfied this burden of proof for the petitioner. While strategy with regard to appellate practice will be discussed elsewhere in these materials, a clear understanding of this strategy is necessary early in the case as an AMA rating is considered. As will be discussed in more detail below, there are also cases in which the respondent may be able to take advantage of the AMA issue without performing an official rating. With some injuries, it is possible to do an “informal” AMA rating with the attorney basically analyzing what an AMA rating would be. The arbitrators are gaining some understanding as to where an appropriate AMA rating will fall with regard to particular injuries. If the case can be positioned for resolution by presenting informal evidence of an AMA rating, the respondent may decide to avoid the expense of that rating.

B. Who Should Perform the AMA Rating?

The statute clearly states the AMA rating should be performed by a physician licensed to practice medicine in all its branches, and while this leaves open the possibility for virtually any licensed physician to perform the AMA rating, it is important to make sure the rating is done competently, and performed by a physician who can assist in the admission of the rating into evidence. It is mandatory that the rating be done pursuant to the 6th Edition of the AMA Guides. Not all physicians are aware of this, especially since other states use different editions. Also, some level of expertise in performing the AMA rating is necessary. While the process is not that

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complicated, it is very apparent when a physician is not following the guides in arriving at the rating. Numerous competent physicians are available to perform respected and credible AMA ratings, and those physicians should be used when a rating is necessary. It is also important for the rating to be performed by a physician who can assist in the admission of the rating into evidence. Many petitioners’ attorneys will be employing any available tactic to keep the AMA rating out of evidence. The statute is very clear that in the event the AMA report is the subject of objection, a deposition will be necessary. An AMA rating therefore needs to be performed with a physician within the state of Illinois (for convenience and expense purposes), and with a physician who can support his rating, and his criteria for formulating that rating, under cross examination from petitioner’s attorney.

C. Are the Other Four Factors Important?

More so than ever before, good advocacy is necessary in arguing for lower permanency ratings. Petitioner’s attorneys, and some arbitrators, are always going to be looking for some basis to keep permanency levels elevated, even when the AMA rating is low. It is not uncommon for arguments to be advanced based on the other four factors, even when there exists no compelling evidence to support those factors. Good claims handling directed toward ruling out the other four factors is important, and effective advocacy on these factors in pretrials, pro se settlement hearings, and trials is paramount. In many cases, the defense attorney can establish at trial that the other four factors should have little or no impact on the permanency rating. When this can be established, the AMA rating becomes more important. Even if the arbitrator refuses to follow the evidence, many cases can be positioned for appeal in the event the case is appropriate for such strategy.

D. Pro se Strategies

Arbitrators across the state are becoming well versed at utilizing AMA ratings in conjunction with pro se settlement hearings. While the arbitrators have always been the entity to protect the petitioner in pro se settlement hearings, they are even more likely to fulfill that role, given the recent statutory changes. As always, it is important to consult defense counsel as to how each particular arbitrator treats the AMA rating in the pro se setting. In general, arbitrators are approving pro se settlements at lower levels, given the AMA issue. An arbitrator will usually go out of their way to explain to the petitioner that the AMA rating reduces permanency amounts compared to that previously expected. It is important to keep in mind that arbitrators are not going to approve pro se settlements for the amount of the AMA rating. Generally, however, the arbitrators are willing to approve pro se settlement for 10-15% less than previously expected in the event a good AMA rating is available. Some arbitrators will move even lower. Often a question arises as to whether or not it is necessary to go to the expense of an AMA rating on a simple pro se. While some arbitrators will entertain arguments regarding what an

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AMA rating “would” be if performed, most arbitrators will only reduce a permanency settlement based on the AMA issue, if an AMA rating is available to consider at the time of the pro se settlement contract approval hearing. Again, consult with defense counsel as to an arbitrator’s tendency in this regard is appropriate.

E. Pretrial Strategies

Arbitrators, even petitioner-oriented arbitrators, have always been more likely to present more conservative positions in the pretrial setting. This tendency has been highlighted with the AMA issue. An arbitrator is always looking for an opportunity to remove a case from his or her docket by way of settlement, and if there is a strong AMA rating to be presented to an arbitrator in the pretrial setting, it often can be used to force a more favorable settlement. This is also a very appropriate setting for utilization of “informal” AMA ratings. Even if the expense of an AMA rating has not yet been incurred, the expected AMA rating can be argued in the pretrial setting. arbitrators will often suggest that avoiding the expense of the AMA rating, which will likely result in an expected or known amount, could be an additional catalyst for settlement. The pretrial setting is also an opportunity to emphasize the other four factors, and also determine what petitioner’s strategy may be relative to the permanency evidence.

F. Trial Strategies

Trial strategy has become increasingly complex in recent years, and the advent of the AMA issue on permanency determinations has increased that complexity. Effective advocacy is more important than ever in the effort to reduce permanency amounts and overall exposure. Early and detailed planning involving the claims handler and defense counsel is necessary. Regardless of how the AMA issue is utilized throughout the pendency of the case leading up to trial, an informed decision as to admission of AMA evidence at trial is always necessary. Even if the respondent has previously obtained an AMA rating, there may be reason to avoid admission of that AMA rating at trial. Perhaps the case presents as one in which the respondent should argue the petitioner’s burden of proof, and if the petitioner decides not to enter an AMA rating, the respondent may decide not to do so as well. This decision often interplays with the other defenses, the validity of those defenses, and the significance of the respondent’s exposure. The respondent, at trial, will also want to focus on the other four factors when such evidence supports reduced permanency. Particular attention to medical records which document little or no permanency is crucial. Effective cross examination of the petitioner on the other four enumerated factors can also have a big impact on reducing permanency amounts. In many cases, it is possible at trial to establish that the other four factors have little or no impact on permanency. In such cases, the AMA rating becomes more important, and defense counsel may be able to effectively position a case for appeal, if appropriate.

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IV. CONCLUSION

Over the next several years, we will see numerous decisions from the Industrial Commission addressing permanency determinations under the new statute. While all of those decisions will not result in dramatically reduced permanency amounts, the system as a whole is currently being implemented in such a way that permanency amounts are going down. AMA ratings and the other four factors enumerated by the new statute are being used in both settlements and trials to reduce exposure, and with effective advocacy the permanency exposure for employers across the state can be reduced. While it is too early for any empirical data to be compiled with regard to reduction in permanency amounts, we are generally seeing a 10-15 percent decrease in permanency amounts since implementation of the new statute. While petitioner’s attorneys will always attempt to oppose this reduction, the savvy claims handler can use the strategies outlined above to obtain better and lower permanency resolutions.

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Craig S. Young

- Partner

Craig is Chair of the firm's workers' compensation practice group. Craig began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in 1985. He has spent his entire career with Heyl Royster and became a partner in 1992. He is recognized as a leading workers' compensation defense lawyer in the state of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. He has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves as Chair of the Workers' Compensation Committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organization and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award.

Public Speaking “Workers’ Compensation Reform in Illinois”

Presented in numerous locations (2012) “Elements of a Winning Workers’ Compensation

Program” Downstate Illinois Occupational Safety & Health Day (2010)

“Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers’ Compensation” Risk Control Workshop (2010)

“Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues” Lorman Education Services (2008)

Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only


Peoria County Bar Association 2008 Distinguished Community Service Award

Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Second Vice

President; Chair, Professional Standards Committee; Vice Chair, Budget Committee)

Defense Research Institute (Chair, National Workers' Compensation Committee)



Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude),

Bradley University, 1982


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APPEAL ME! MEANINGFUL CHANGE WILL REQUIRE APPELLATE REVIEW

Presented and Prepared by: Brad A. Elward




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APPEAL ME! MEANINGFUL CHANGE WILL REQUIRE APPELLATE REVIEW I. 2013-2014 WATERSHED YEAR ............................................................................................................... D-3

II. SIGNIFICANT PROVISIONS RIPE FOR APPEAL ................................................................................. D-3

A. Utilization Reviews, 820 ILCS 305/8.7 ................................................................................... D-4 B. Codification of “Accident,” 820 ILCS 305/1(d) ................................................................... D-6 C. AMA Ratings, 820 ILCS 305/8.1b Determination of

Permanent Partial Disability .................................................................................................... D-6 D. Carpal Tunnel Syndrome, 820 ILCS 305/8(e)(9) ................................................................ D-7 E. Intoxication, 820 ILCS 305/11 .................................................................................................. D-7

III. CASE STUDY: CONSIDERATIONS IN LOOKING FOR “THE PERFECT” AMA RATING CASE ..................................................................................................................................... D-9

A. The Statute, 820 ILCS 305/8.1b Determination of Permanent Partial Disability ........................................................................................................................... D-9

B. Keys Aspects for Consideration Regarding Section 8.1b ............................................D-10

1. The definition of “shall.” ...........................................................................................D-10 2. Application of the remaining factors. ..................................................................D-11

IV. WHAT, THEN, IS THE IDEAL CASE FOR APPEAL? SOME THOUGHTS ..............................D-11

A. Example 1 .....................................................................................................................................D-11 B. Example 2 ......................................................................................................................................D-12 C. Other Thoughts ...........................................................................................................................D-12

V. CONCLUSION – PREPARATION FOR APPEAL BEGINS AT TRIAL .............................................D-12 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

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APPEAL ME! MEANINGFUL CHANGE WILL REQUIRE APPELLATE REVIEW I. 2013-2014 WATERSHED YEAR

The next twelve to eighteen months will be a watershed moment for many of the provisions enacted as part of the 2011 amendments to the Workers’ Compensation Act. Many cases are already in front of the Workers’ Compensation Commission for resolution, and some have even reached the circuit court judicial review level. As these cases move forward, each of us will need to be on alert for potential “good” and “bad” cases that may end up in the appellate court. As we all know, presenting a seemingly good issue to the appellate court with unfavorable facts may well produce the opposite of our desired outcome. Ensuring that only those cases with the most favorable fact patterns and legal framework are presented for appellate review will be crucial to obtaining the most favorable interpretations of the new amendments. Indeed, there are two general considerations for employers and adjusters: (1) do I have a current case which might present an opportunity for appellate review; and (2) how do I posture my new claims to create the best record going forward? For the former cases, our concern is whether the case is best postured for an appellate court review. In the latter, our concern is ensuring our case is best postured for achieving a positive result that can be upheld on appellate court review. It is important to keep in mind that setting up the proper case for an appeal will take planning and perhaps additional financial resources. Moreover, it may require that a carrier pay a little more to defend a case than normal in order to present the best case for appeal and to position an issue for a favorable appellate court determination. As a reminder, the appellate court evaluates a commission decision through the standard of review based on the issue before the court. Legal issues are reviewed de novo, or anew, with no deference to the commission’s findings. Fact questions are evaluated under the manifest weight of the evidence standard and the salient question is whether an opposite result is clearly apparent. Significant deference is given to the commission’s fact-findings. Discretionary rulings are reviewed under an abuse of discretion standard, which asks whether no reasonable person in the position of the commission would have reached the result below. II. SIGNIFICANT PROVISIONS RIPE FOR APPEAL

Of the provisions enacted by the 2011 amendments, the following are the most significant in terms of requiring or at least being subject to appellate interpretation. Determining which standard of review will apply will depend on the individual case and issue on appeal.

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A. Utilization Reviews, 820 ILCS 305/8.7

Section 8.7 governing utilization review was strengthened by the amendments and now reads:

(a) As used in this Section: “Utilization review” means the evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care of nationally recognized peer review guidelines as well as nationally recognized treatment guidelines and evidence-based medicine based upon standards as provided in this Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section applies to prospective review of necessary first aid or emergency treatment.

* * * (i) Upon receipt of written notice that the employer or the employer’s agent or insurer wishes to invoke the utilization review process, the provider of medical, surgical, or hospital services shall submit to the utilization review, following accredited procedural guidelines.

(1) The provider shall make reasonable efforts to provide timely and complete reports of clinical information needed to support a request for treatment. If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable nor collectible by the provider or claimant from the employer, the employer’s agent, or the employee. The reporting obligations of providers shall not be unreasonable or unduly burdensome. (2) Written notice of utilization review decisions, including the clinical rationale for certification or non-certification and references to applicable standards of care or evidence-based medical guidelines, shall be furnished to the provider and employee. (3) An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the

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grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section. (4) When a payment for medical services has been denied or not authorized by an employer or when authorization for medical services is denied pursuant to utilization review, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review pursuant to subsection (a) is reasonably required to cure or relieve the effects of his or her injury. (5) The medical professional responsible for review in the final stage of utilization review or appeal must be available in this State for interview or deposition; or must be available for deposition by telephone, video conference, or other remote electronic means. A medical professional who works or resides in this State or outside of this State may comply with this requirement by making himself or herself available for an interview or deposition in person or by making himself or herself available by telephone, video conference, or other remote electronic means. The remote interview or deposition shall be conducted in a fair, open, and cost-effective manner. The expense of interview and the deposition method shall be paid by the employer. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties. Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition. Nothing shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

An admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this Section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12. (j) When an employer denies payment of or refuses to authorize payment of first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that

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denial or refusal to authorize complies with a utilization review program registered under this Section and complies with all other requirements of this Section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act and if that denial or refusal to authorize does not comply with a utilization review program registered under this Section and does not comply with all other requirements of this Section, then that will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of whether the employer may be responsible for the payment of additional compensation pursuant to Section 19(k) of this Act.

The changes to this section made by this amendatory act of the 97th General Assembly apply only to health care services provided or proposed to be provided on or after September 1, 2011. Concerning this provision, the anticipated areas of appellate litigation include the following:

What constitutes the “expense of interview and the deposition method” as far as the employer’s obligation to pay?

What weight is given to the UR report and how is that affected by the employee’s physician’s refusal to cooperate or the employee’s refusal to appeal?

B. Codification of “Accident,” 820 ILCS 305/1(d)

The definition of “accident” was modified to provide, “[t]o obtain compensation under this act, an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment.” Concerning this provision, the anticipated areas of appellate litigation include the following:

What constitutes a preponderance of the evidence? How does the former “might or could be ‘a’ cause” standard apply in the face of this

preponderance language?

C. AMA Ratings, 820 ILCS 305/8.1b Determination of Permanent Partial Disability

For accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria:

(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of

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tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” shall be used by the physician in determining the level of impairment. (b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors: (i) The reported level of impairment pursuant to subsection (a); (ii) The occupation of the injured employee; (iii) The age of the employee at the time of the injury; (iv) The employee’s future earning capacity; and (v) Evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.

Concerning this provision, the anticipated areas of appellate litigation include the following:

What is the meaning of “shall” and is a written report mandatory? How do we balance an AMA report versus the remaining factors?

D. Carpal Tunnel Syndrome, 820 ILCS 305/8(e)(9)

Section (e)(9) was amended to add, “[i]f the accidental injury involves carpal tunnel syndrome due to repetitive or cumulative trauma, in which case the permanent partial disability shall not exceed 15% loss of use of the hand, except for cause shown by clear and convincing evidence and in which case the award shall not exceed 30% loss of use of the hand.”

E. Intoxication, 820 ILCS 305/11

The intoxication defense was modified as follows:

No compensation shall be payable if (i) the employee’s intoxication is the proximate cause of the employee’s accidental injury or (ii) at the time the employee incurred the accidental injury, the employee was so intoxicated that the intoxication constituted a departure from the employment. Admissible evidence of the concentration of (1) alcohol, (2) cannabis as defined in the Cannabis Control Act, (3) a controlled substance listed in the Illinois Controlled Substances Act, or (4) an intoxicating compound listed in the Use of Intoxicating Compounds Act in the employee’s blood, breath, or urine at the time the employee incurred

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the accidental injury shall be considered in any hearing under this Act to determine whether the employee was intoxicated at the time the employee incurred the accidental injuries. If at the time of the accidental injuries, there was 0.08% or more by weight of alcohol in the employee’s blood, breath, or urine or if there is any evidence of impairment due to the unlawful or unauthorized use of (1) cannabis as defined in the Cannabis Control Act, (2) a controlled substance listed in the Illinois Controlled Substances Act, or (3) an intoxicating compound listed in the Use of Intoxicating Compounds Act or if the employee refuses to submit to testing of blood, breath, or urine, then there shall be a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the employee’s injury. The employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries. Percentage by weight of alcohol in the blood shall be based on grams of alcohol per 100 milliliters of blood. Percentage by weight of alcohol in the breath shall be based upon grams of alcohol per 210 liters of breath. Any testing that has not been performed by an accredited or certified testing laboratory shall not be admissible in any hearing under this Act to determine whether the employee was intoxicated at the time the employee incurred the accidental injury. All sample collection and testing for alcohol and drugs under this Section shall be performed in accordance with rules to be adopted by the Commission. These rules shall ensure:

(1) compliance with the National Labor Relations Act regarding collective bargaining agreements or regulations promulgated by the United States Department of Transportation; (2) that samples are collected and tested in conformance with national and State legal and regulatory standards for the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable sample; (3) that split testing procedures are utilized; (4) that sample collection is documented, and the documentation procedures include: (A) the labeling of samples in a manner so as to reasonably preclude the probability of erroneous identification of test result; and

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(B) an opportunity for the employee to provide notification of any information which he or she considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs and other relevant medical information; (5) that sample collection, storage, and transportation to the place of testing is performed in a manner so as to reasonably preclude the probability of sample contamination or adulteration; and (6) that chemical analyses of blood, urine, breath, or other bodily substance are performed according to nationally scientifically accepted analytical methods and procedures.

The changes to this section made by Public Act 97-18 apply only to accidental injuries that occur on or after September 1, 2011. Concerning this provision, the anticipated areas of appellate litigation include the following:

When does the intoxication become the proximate cause of the injury? Did the intoxication constitute a departure from the employment? What level of evidence shifts the burden to the employee and how much evidence is

necessary to overcome the rebuttable presumption? We also anticipate challenges to the collection and testing procedures used to determine the level of intoxication. III. CASE STUDY: CONSIDERATIONS IN LOOKING FOR “THE PERFECT” AMA RATING

CASE

A. The Statute, 820 ILCS 305/8.1b Determination of Permanent Partial Disability

For accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria: (a) A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment. The most current edition of the American Medical Association’s “Guides to the Evaluation of Permanent

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Impairment” shall be used by the physician in determining the level of impairment. (b) In determining the level of permanent partial disability, the Commission shall base its determination on the following factors: (i) The reported level of impairment pursuant to subsection (a); (ii) The occupation of the injured employee; (iii) The age of the employee at the time of the injury; (iv) The employee’s future earning capacity; and (v) Evidence of disability corroborated by the treating medical records. No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.

B. Keys Aspects for Consideration Regarding Section 8.1b

There are two obvious aspects of section 8.1b that may require appellate court interpretation. A claim must be closely scrutinized to determine how the facts of the case relate to each.

1. The definition of “shall.”

First, the question of what the term “shall” means in the context of this act. The petitioner’s bar is claiming this term is permissive and that it is not necessary that an AMA rating be submitted in order to determine disability. This view is currently supported by the commission, which issued a memorandum in November 2011, stating as follows:

An impairment report is not required to be submitted by the parties with a settlement contract, and

If an impairment rating is not entered into evidence, the arbitrator is not precluded from entering a finding of disability.

Commission Memorandum re: Section 8.1b, November 28, 2011. The appellate court has recently resorted to using the dictionary to define terms used in statutes and we anticipate they will do the same here and construe “shall” as mandatory. In one case, the court observed, the definition of “may” is “possibility, probability or contingency,“ while the definition of “shall” is “‘a word of command’ and is ‘imperative or mandatory.’“ People v. Howard, 372 Ill. App. 3d 490, 509, 865 N.E.2d 472 (1st Dist. 2007) (Fitzgerald Smith, P.J., dissenting), quoting Black’s Law Dictionary 883, 1233 (5th ed. 1979). In another case, albeit unpublished, the court stated that use of the word “shall” is not dispositive of the question of whether a statute is

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mandatory or directory. According to that court, legislative intent determines the term’s effect. MacRunnels v. McConnaughay, 2012 IL App (2d) 110627-U.

2. Application of the remaining factors.

Section 8.1b states that in determining the level of permanent partial disability, the Commission “shall” base its determination on the following factors:

(i) The reported level of impairment pursuant to subsection (a); (ii) The occupation of the injured employee; (iii) The age of the employee at the time of the injury; (iv) The employee’s future earning capacity; and (v) Evidence of disability corroborated by the treating medical records.

The provision further states that “[n]o single enumerated factor shall be the sole determinant of disability.” 820 ILCS 305/8.1b. In determining the level of disability, “the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.” The questions here are how do we balance these factors to arrive at disability? Which cases should be selected as ones best suited for appellate court review? Here are some general thoughts:

In testing the meaning of the term “shall,” do not pick a case with potential high disability exposure.

To maximize the impact of the AMA rating, admit direct evidence that reduces the impact of the remaining factors.

IV. WHAT, THEN, IS THE IDEAL CASE FOR APPEAL? SOME THOUGHTS

A. Example 1

The petitioner works as a secretary and her job does not involve lifting more than ten pounds, bending, or twisting actions. She is 33 years of age, has no detriment to her earning potential, and her other medical records indicate she was released to return to work without restrictions. The petitioner has not obtained an AMA rating. This case is a candidate for pushing to trial and raising the failure to obtain an AMA rating. This is a case where the disability, even without an AMA rating, will likely be low and there is little at risk in the event the appellate court deems the word “shall” to be directory.

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B. Example 2

Assume the petitioner has an operated herniated lumbar disc and works as a dock loader. His job requires him to lift up to 75 lbs on a regular basis. The surgery was largely successful but he has residual disabilities and a lifting restriction of 50 lbs regularly and 75 lbs on occasion. The employer agrees to accommodate the employee and enables him to return to his former job. Suppose further that he is 26 years old and has had other medical issues affecting his shoulders and neck. If the AMA report demonstrates an eight percent disability and the commission adopts this report and awards ten percent of a person, this case presents a potential for reversal on appeal because of the other factors impacting the determination. If the same individual’s case is tried and the disability is determined to be 25 percent, the mere fact that the AMA rating is lower may not be sufficient to justify reversal given the other factors. In such a case, pushing an appeal might well produce bad law that could negatively impact future cases.

C. Other Thoughts

In the final consideration, the commission’s decision on disability will be reviewed under a manifest weight of the evidence standard, which means that it will be difficult to overcome whatever result the commission reaches absent some showing it disregarded one or more of the factors. However, we can help make the commission’s decision the right decision by having a full and complete record justifying each of the noted factors. In the context of an AMA rating, it may well be necessary to present affirmative evidence to support the non-existence of the remaining factors. For example, in an operated carpal tunnel case where the AMA rating is five percent of a hand, it may well be that there are few if any other factors supporting an increased award of permanency. If the surgery is performed and is successful and the individual returns to her former job without any restrictions, there is a compelling argument that the AMA rating alone should determine permanency. If affirmative evidence establishes the claimant can return to work, that her job duties are not impacted at all, and that she has made a full recovery, any award of permanency that strays too far from the AMA rating will be subject to a reversal on a manifest weight basis. Indeed, this example presents the best case for a disability award closely tracking an AMA rating because the four other factors are either neutral or indicative of no permanency. V. CONCLUSION – PREPARATION FOR APPEAL BEGINS AT TRIAL

A good appeal begins with good trial preparation. Cases involving any of the 2011 amendment provisions should be viewed as potential appeals from day one and sufficient attention devoted to developing a proper factual basis for the case. Moreover, all procedural steps must be followed to the letter so that an otherwise valid AMA rating, or UR report, is not discarded

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because of a failure to comply with the strict letter of the statute. Once this evidence is harnessed and presented, we can then prepare a detailed proposed decision for submission to the arbitrator, outing the evidence as it best impacts the desired level of disability. We do anticipate that the proper defense of select cases will be a little more expensive, but in the long run, will be well worth the time and effort. Establishing a favorable body of law interpreting these noted sections of the act will produce benefits for years to come.

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Brad A. Elward

- Partner

Brad concentrates his work in appellate practice and has a significant sub-concentration in workers' compensation appeals. He has been with the firm since 1991 and has handled all aspects of civil appeals, ranging from preparation of initial appeal documents through the drafting of appellate briefs and oral arguments. Brad handles workers' compensation cases before the Workers' Compensation Commission, the circuit courts, and the Appellate Court, Workers' Compensation Commission Division. Brad has authored more than 275 briefs and argued more than 125 appellate court cases, resulting in more than 60 published decisions. He has appeared before every Illinois Appellate Court District and has significant experience with interlocutory appeals. He has also authored amicus curiae briefs before the Illinois Supreme Court on behalf of the Association of Illinois Defense Trial Counsel. In addition to his workers' compensation appeals, Brad has also handled appeals involving complex asbestos and procedural issues (including venue and forum non conveniens) and served as a senior motion writer and team leader on multi-billion dollar diminished value and salvage title class action litigation. Brad has taught courses on workers' compensation law for Illinois Central College as part of its paralegal program and has lectured on appellate practice before the Illinois State Bar, Peoria County Bar, and Illinois Institute for Continuing Legal Education. Brad has also written and published five books and over twenty articles on naval aviation and military related topics. Brad is the current editor of the firm's workers' compensation newsletter, published monthly. Publications "Survey of Illinois Law: Workers'

Compensation," Southern Illinois University Law Journal (2010)

"Rule 315(a) Petitions for Leave to Appeal: A Practice Primer," Illinois Defense Counsel Quarterly (2009)

"Workers' Compensation Practice on Appeal," Northern Illinois University Law Review (2002)

Public Speaking “Appeal Bonds and Sureties”

Appellate Lawyers Association (2012) “Workers' Compensation Appeals to the

Commission, Circuit and Appellate Court” Winnebego County Bar Association (2011)

Professional Recognition Named to the Illinois Super Lawyers list (2008-

2013). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Professional Associations Appellate Lawyers Association (Vice President;

Director 1997-99; Rules Chairman, 1999-2001; Rules Committee, 2005-06; event coordinator; past moot court competition judge)

Illinois State Bar Association (Workers' Compensation Section Council, 1998-2000)

Peoria County Bar Association (Vice Chair, CLE Committee)

Illinois Association of Defense Trial Counsel (IDC Quarterly Associate Editor)

Court Admissions State Courts of Illinois United States Court of Appeals, Seventh and

Eighth Circuits United States District Court, Central and

Southern Districts of Illinois Education Juris Doctor, Southern Illinois University

(Magna Cum Laude), 1989 Bachelor of Science-Economics, University of

Illinois, 1986


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SO FAR SO GOOD – AMA DECISIONS AND PRO SE CONTRACT RESULTS

Presented and Prepared by: Toney J. Tomaso

[email protected] Urbana & Edwardsville, Illinois • 217.344.0060

Joseph K. Guyette

[email protected] Urbana, Illinois • 217.344.0060



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SO FAR SO GOOD – AMA DECISIONS AND PRO SE CONTRACT RESULTS I. INTRODUCTION ............................................................................................................................................ E-3

II. CASE ILLUSTRATIONS ................................................................................................................................. E-4

III. CONCLUSION ............................................................................................................................................. E-13


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SO FAR SO GOOD – AMA DECISIONS AND PRO SE CONTRACT RESULTS I. INTRODUCTION

The statute, 820 ILCS 305/8.1b, went into effect September 1, 2011. What is on everyone's mind is how the new statute has changed the landscape in workers' compensation. By no means have we had enough time to give a definitive answer to that question; however, we want to provide you with the latest update as to what is going on in the workers’ compensation trenches. There are cases currently working their way through the court system so that we can get some clarity on the issue as to what impact the AMA Guides and ratings will have on your everyday claims in the state of Illinois. What can we share with you? This will be a review and analysis of what is going on around the state of Illinois. Generally speaking, we are seeing a definitive benefit to the use of AMA exams and ratings. We have approached this from a cost benefit analysis, and you must do this for every case. You must keep in mind the cost of the AMA exam will be close to the cost of an IME. So, it is best to make sure the amount of money in controversy covers the amount of money you would spend on the report. For example, if you have a finger claim, with a small average weekly wage, then the benefit of the AMA report may simply be outweighed by the value of the claim negating the need for the report. Make sure this is considered before moving forward with your AMA rating. Due to the inherent benefit of the AMA ratings and section 8.1b, our position is to get a rating in almost every case. The attorneys at Heyl Royster, in all six of our offices, are constantly communicating about what we experience out in the field with different arbitrators and commissioners. We also have our ears to the ground as to what others have experienced. The application of this new statute, which we bargained for on behalf of business interests, is vital to our clients’ arsenal of defense weapons. As such, we on the front lines want to make sure you know what an excellent weapon we have with this new statute. Please take advantage of it at every turn. Do not fall prey to the petitioners bar’s latest tactic. They have reached a consensus that the AMA guides and this statute have no meaning and is a throwaway portion of the act. Further, they are threatening all out warfare on any AMA rating. Meaning, if you get one, they will force that defense expert who rendered such a finding to sit for a deposition. It is Heyl Royster's position that these ratings can be as important and useful as an IME. We all know the answer to the question, would you still move forward with an IME if you knew the petitioner's attorney was going to object to it thus forcing an evidence deposition. We all know the answer is a definitive yes. If you let them get away with that thought, then you are doing yourself and your clients a great disservice. The cost savings to you and your clients can be substantial. We encourage you to take advantage of section 8.1b and set a precedent so that we can establish a new norm as to the permanency value to claims. As you have probably heard before, what we are embarking on is a journey where in the end we want to have the Q-Dex re-written with awards which are conservative and more in line with the objective findings of the AMA ratings. We are all in this fight for the long haul. Please help us help you build a better tomorrow for workers' compensation defense.

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II. CASE ILLUSTRATIONS

Zachary Johnson v. Central Transport In Zachary Johnson v. Central Transport, 11 WC 41328, the petitioner was a right-hand dominant truck driver who suffered a right small finger metacarpal fracture with angulations when a truck door fell onto his right hand on October 17, 2011. He treated conservatively, and eight weeks following the accident was released to return to work full duty with no restrictions. The petitioner had not received any medical treatment since December of 2011. He continued working his regular duties and actually took another job working as an over the road truck driver earning more money. The petitioner made subjective complaints of right hand stiffness in cold weather and experiencing periodic pain throughout the day. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: 1 percent of the right hand per Dr. Vendor, who was

apparently hired by respondent. Petitioner did not offer an AMA impairment rating. 2. Occupation: The arbitrator noted that the petitioner was still employed as a truck driver

following his treatment. 3. Age: The arbitrator noted that the petitioner was 28 years old. Because he was younger,

the arbitrator reasoned that his PPD may not be as extensive as that of an older individual.

4. Future earning capacity: No evidence of the diminished future earning capacity. 5. Evidence of disability corroborated by medical records: Arbitrator spent the most

time discussing this. She noted respondent’s IME doctor felt petitioner's susceptibility to cold would resolve over time, his grip strength was relatively symmetrical and functional difficulties associated with this type of injury are minimal. Dr. Vendor, who completed the AMA impairment rating, noted complaints of sporadic numbness in petitioner's right palm and sporadic soreness in the owner aspect of his right hand. Petitioner also was noted to have normal range of motion of his right small finger.

Surprisingly, the arbitrator noted that prior commission decisions lend support to the conclusion that a minimal PPD award was appropriate. She cited a 2007 commission decision with a similar injury, but the petitioner in that claim suffered 50 percent strength loss in the hand. In that case the petitioner was awarded 7.5 percent loss of use of the left hand. The petitioner in the case at hand had no loss of strength, as noted by the arbitrator. The arbitrator then awarded 10 percent loss of use of the right hand, which is a higher percentage than was awarded in the case she cited which illustrated evidence of 50 percent loss of use of the hand strength. This would be approximately 93.2 percent loss of use of the right small finger.

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Frederick Williams v. Flexible Staffing, Inc. In Frederick Williams v. Flexible Staffing, Inc., 11 WC 46390, the petitioner was right-hand dominant and suffered an accident on October 7, 2011. He was performing welding on a rail which slipped off a house. The petitioner tried to catch the rail with his right hand and injured his right arm. He was diagnosed with a distal biceps tendon rupture. Surgery was performed on November 7, 2011 which included a repair of the right elbow distal biceps tendon rupture. The petitioner underwent physical therapy following surgery and was placed at MMI on March 7, 2012 by the treating physician. The treating physician noted a lack of range of motion of approximately 5 to 10 degrees in supination of the forearm. Pursuant to section 8.1(b), the arbitrator noted the following: 1. AMA impairment rating: Respondent’s IME physician, Dr. Mark Levin provided an AMA

disability rating noted to be four percent of the whole person or six percent upper extremity impairment. The arbitrator was critical of Dr. Levin's AMA rating. She claimed he did not include loss of range of motion or any other measurements that establish the nature and extremity of the impairment pursuant to section 8.1b. She noted that Dr. Levin did not consider a grade modifier for clinical studies and also failed to include documentation regarding how he determined the functional history modifier.

2. Occupation: The arbitrator noted that the petitioner was a welder/fabricator, which she took judicial notice to be medium to heavy work. She concluded that the petitioner's permanent partial disability will be greater than then that of someone who performs lighter work.

3. Age: The petitioner was 44 years old at the time of the accident. Since the arbitrator concluded that he was somewhat younger, she felt that his disability would be more extensive than that of an older individual because the petitioner will have to live with his condition longer.

4. Future earning capacity: The arbitrator noted the petitioner's future earning capacity appeared to be undiminished as a result of his injuries because he was medically returned to his full-time duties. However, when petitioner attempted to return to work he was told they no longer had a job. The arbitrator concluded that this may negatively affect his future earning capacity, despite the fact that it did not appear that his job loss had any relationship to his injury.

5. Evidence of disability corroborated by medical records: The arbitrator concluded that the petitioner credibly testified that he currently experiences pain, numbness or tingling and loss of range of motion because his complaints regarding his right arm were corroborated by the treating medical records.

The arbitrator then awarded 30 percent loss of use of the right arm.

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Shawn M. Dorris v. Continental Tire In Shawn M. Dorris v. Continental Tire, 11 WC 46624, the petitioner hurt his left forearm and wrist while attempting to pull a stuck tire from a mold on September 18, 2011. An MRI of the left wrist revealed a peripheral TFCC tear. On December 1, 2011, the petitioner underwent a left wrist arthroscopy with repair of the peripheral TFCC tear. The petitioner returned to work with restrictions on December 12, 2011, and began a course of physical therapy shortly thereafter. The petitioner was released by his surgeon on May 7, 2012. At that time, the petitioner estimated he was only 80 percent better, but he exhibited good range of motion and grip strength. At arbitration, the petitioner testified that he continued to have left wrist and forearm pain. Further, the petitioner explained that he had lost strength and range of motion in his hand and wrist. The petitioner acknowledged that he was able to return to his regular position, but claimed he had to alter his work activities to compensate for his left hand. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: Six percent upper extremity impairment, per the treating

surgeon, Dr. David Brown. The AMA rating was performed at the request of the respondent, and there is no indication an AMA rating was presented by the petitioner.

2. Occupation: The arbitrator noted the petitioner returned to his regular position, and also that he held a “labor intensive job.” The arbitrator found “that petitioner’s permanent partial disability will be greater based on this regard than an individual who performs lighter work.”

3. Age: The arbitrator noted the petitioner was 38 years old at the time of his injury. The arbitrator found the petitioner “to be a somewhat younger individual and conclude[d] that petitioner’s permanent partial disability will be more extensive than that of an older individual because he will have to live with the permanent partial disability longer.”

4. Future earning capacity: There was no evidence of diminished future earning capacity, so the arbitrator did not place any weight on that factor.

5. Evidence of disability corroborated by medical records: The arbitrator noted the petitioner’s medical records established a loss of grip strength and limited range of motion. Further, the petitioner testified that he continued to have left wrist and forearm pain.

Ultimately, the arbitrator awarded the petitioner 13 percent loss of use of his left hand. Terry Cottingham v. Breckert’s Chevrolet, Inc. In Terry Cottingham v. Breckert’s Chevrolet, Inc., 12 WC 3136 (pending), the petitioner was a mechanic/supervisor in an autobody shop (affiliated with a car dealership), when he suffered an injury to his left knee. This occurred when a clamp slipped off of the automobile frame at the time petitioner was standing next to the clamp, resulting in the clamp striking the medial aspect

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of petitioner’s left knee. This accident occurred on October 12, 2011. Petitioner’s family physician referred him for an MRI to rule out any pathology at the left knee. The MRI confirmed both the lateral and medial meniscus of the left knee were torn. Surgery was conducted on November 29, 2011, which was followed by physical therapy. Following the first surgery, petitioner continued to complain of left knee pain and eventually underwent an assessment and evaluation with another orthopedic surgeon. Ultimately, the second doctor surgically repaired the left knee on February 14, 2012 (which was again followed by physical therapy). The second surgery included an arthroscopy with partial lateral/medial meniscectomies and identification of proximal partial ACL tear. The car dealership where petitioner worked closed. Petitioner purchased the auto repair shop portion of the dealership and opened it on his own, and is currently the owner/operator of same, engaging in the same or similar duties he performed when employed with respondent. There has been no active medical treatment for the petitioner since mid-July 2012, when he was found to be at MMI. Pursuant to section 8.1b, the arbitrator did note the following during an April 2013 pretrial hearing as it relates to the “nature and extent” of the injury to petitioner for settlement evaluation and recommendation purposes: 1. AMA impairment rating: 13 percent loss of use of the left leg (LEI) pursuant to a

December 2012 opinion report issued by Dr. Jon Petersen. This is the equivalent of five percent person as a whole (WPI). Petitioner did not offer a rebuttal AMA impairment rating, but rather had petitioner’s treating surgeon issue a supplemental report after reviewing the AMA report/rating. Petitioner’s expert did not object to the findings and conclusions reached by Dr. Petersen, but simply reported it does not take into account the petitioner’s “present” complaints (as of April 2013), nor does it take into account future medical care and treatment the petitioner might require (surgery).

2. Occupation: The arbitrator noted the petitioner was still employed in the same position that he enjoyed before the accident date in question.

3. Age: The arbitrator asked for the petitioner’s date of birth and took into consideration the fact petitioner is 43 years of age.

4. Future earning capacity: There was no evidence submitted by the petitioner which would lay a proper foundation regarding diminished future earning capacity.

5. Evidence of disability corroborated by medical records: The focus of discussion regarding this issue dealt with petitioner’s expert opining the petitioner may require future medical care and treatment in the form of an additional surgery (total knee replacement). We asked the arbitrator to take this issue into account when rendering his opinion as to a “nature and extent” recommendation since the parties were so far apart based upon prior settlement negotiations. Petitioner is still having aching pain in the left knee despite prior surgeries. However, petitioner was not experiencing any locking, giving way, swelling, or other symptoms which would suggest recurrent mechanical difficulties. Petitioner was heading towards a total knee replacement, but that surgery should be put off for the future as long as possible. In order to assist the petitioner in this regard, it was recommended the petitioner avoid extensive stair climbing and

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carrying of heavy objects. Petitioner was told to wear a knee brace/support when performing autobody work.

Arbitrator Gallagher, following the pretrial hearing, provided a recommendation of 30 percent loss of use of a left leg. Respondent’s exposure, based upon the facts of this case if the accident pre-dated the AMA ratings and the statutory changes to the act, would have a value of 45 percent to 55 percent loss of use of a leg. The petitioner had drawn a line in the sand at 50 percent loss of use of the leg. When he did so, we made the decision to get an AMA rating/report and then either move forward with a pretrial conference or a full trial. At this time the parties are still working on settlement terms based upon the arbitrator’s recommendation. Michael Arscott v. Con-Way Freight, Inc. In Michael Arscott v. Con-Way Freight, Inc., 12 WC 3876, the petitioner was a truck driver who injured his left knee while exiting his tractor. An MRI scan shortly after the accident revealed a torn left meniscus. The meniscus was arthroscopically repaired on May 22, 2012, and the petitioner returned to work at full duty on July 2, 2012. The petitioner was fully released at maximum medical improvement on August 7, 2012. At arbitration, the petitioner testified that he was able to return to all his regular job duties, and continued to perform a home exercise program. The petitioner explained that he occasionally had to take over-the-counter pain medication, but did not need a knee brace. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: 20 percent impairment to the lower extremity, or eight

percent disability to the person, per Dr. Sanjay Patari, who was hired by the respondent. The decision does not mention any impairment rating offered by the petitioner.

2. Occupation: The arbitrator noted the petitioner had returned to his usual employment. 3. Age: The arbitrator noted the petitioner was 57 years old as of the date of the loss, but

did not indicate the impact of this finding on the arbitration decision. 4. Future earning capacity: There was no evidence of diminished future earning capacity. 5. Evidence of disability corroborated by medical records: The arbitrator noted the

petitioner “describes some residual symptoms in the knee, which are generally consistent with the surgery performed.”

The arbitrator ultimately agreed with the respondent’s doctor’s impairment rating, awarding 20 percent loss of use of the leg. Jeffrey N. Garwood v. Lake Land College In Jeffrey N. Garwood v. Lake Land College, 12 WC 4194, the petitioner injured his left knee when he tripped and fell while walking to his vehicle on September 12, 2011. An MRI of the left knee taken about a month later revealed mild chondromalacia and arthritis involving the patellar femoral compartment and a complete tear of the posterior horn of the lateral meniscus. After conservative treatment failed to resolve his symptoms, the petitioner underwent arthroscopic

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surgery on December 2, 2011. Following additional physical therapy, the petitioner was released at maximum medical improvement on May 7, 2012. At that time, the treating surgeon noted, “improved range of motion and good strength” in the petitioner’s knee. In addition, there was no tenderness, effusion or swelling noted. At arbitration, the petitioner testified that he was able to return to his regular job, but sits down whenever he can. The petitioner explained that he occasionally takes Aleve for residual knee pain, and has difficulty walking long distances. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: Eight percent loss of the lower extremity, which translated to

three percent whole person impairment, per Dr. Joseph T. Monaco. The impairment rating was performed by Dr. Monaco at the request of the respondent. There is no indication that the petitioner presented an AMA rating at the time of arbitration.

2. Occupation: At the time of arbitration, the petitioner had a different job than he held at the time of his accident. The arbitrator did not indicate how this factored into the decision.

3. Age: The arbitrator noted the petitioner was 53 years old at the time of his accident. According to the arbitrator, “no evidence was presented as to how petitioner’s age might affect his disability.”

4. Future earning capacity: No evidence was presented to show a diminishment in the petitioner’s future earning capacity as a result of this injury.

5. Evidence of disability corroborated by medical records: The arbitrator noted the petitioner complained of ongoing problems with pain and stiffness in his injured left knee, which limits his ability to stand and walk. Further, the arbitrator found that these complaints were corroborated by the petitioner’s medical records.

The arbitrator awarded the petitioner 20 percent loss of use of his left leg. Timothy Brown v. Con-Way Freight In Timothy Brown v. Con-Way Freight, 12 WC 4657, the petitioner was a freight truck driver who hurt his left shoulder on October 8, 2011, while moving some cargo. An MRI scan shortly after the accident revealed a full thickness rotator cuff tear. The petitioner underwent surgery to repair the rotator cuff on December 16, 2011. The surgeon released the petitioner to return to work at full duty on April 11, 2012, noting only minor ache, excellent range of motion, and strength against resistence. At arbitration, the petitioner testified that he had some concerns about the strength and endurance of his shoulder, but acknowledged that he was able to do his regular job.

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Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: Six percent of the upper extremity, which translated to four

percent of a person as a whole per Dr. Fedder, who was retained by the respondent. The decision does not reference any AMA rating presented by the petitioner.

2. Occupation: The arbitrator noted the petitioner returned to his usual employment. 3. Age: The arbitrator noted the petitioner was 51 years old as of the date of the accident,

but did not indicate how this impacted the permanency award. 4. Future earning capacity: There was no evidence of diminished future earning capacity. 5. Evidence of disability corroborated by medical records: The arbitrator indicated the

petitioner continued to complain of weakness and fatigue in the shoulder, with occasional swelling and pain. According to the arbitrator, “While the weakness is not well borne out in the records, the occasional discomfort described is consistent with the undisputed surgery.”

The arbitrator ultimately awarded ten percent loss of use of a person as a whole, which would be equivalent to approximately 19.8 percent loss of use of the arm. Robert Todd Riley v. Con-Way Freight, Inc. In Robert Todd Riley v. Con-Way Freight, Inc. 12 WC 11083, the petitioner injured his right knee when he slipped off a forklift in the course and scope of his employment as a freight truck driver on December 5, 2011. X-rays taken shortly after the accident revealed an acute closed comminuted fracture of the proximal end of the right fibula. Subsequent imaging studies revealed the petitioner also had a right ACL tear, which would require reconstruction. On February 27, 2012, the petitioner underwent arthroscopic ACL repair. Following a course of work hardening, the petitioner’s surgeon released the petitioner to full duty as of July 9, 2012. On August 7, 2012, the petitioner was released at maximum medical improvement, with full range of motion. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: Seven percent of the lower extremity, which translated to

three percent of a person as a whole, per the petitioner’s surgeon, Dr. McIntosh. The arbitrator’s decision indicated the rating was requested by the petitioner’s attorney. It does not appear the respondent presented an AMA rating at trial.

2. Occupation: The arbitrator noted the petitioner returned to his regular job as a driver/sales representative.

3. Age: The arbitrator noted the petitioner was 46 years old as of the date of the accident, but did not indicate that it affected the permanency award.

4. Future earning capacity: There was no evidence of diminished future earning capacity. 5. Evidence of disability corroborated by medical records: The arbitrator noted that the

petitioner claimed some stiffness and achiness in his right knee, along with some weather sensitivity and difficulty climbing ladders. According to the arbitrator, “These

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complaints are generally consistent with the surgery reflected in the medical records of Dr. McIntosh.”

The arbitrator awarded the petitioner 27.5 percent loss of use of the right leg. Curtis Oltmann v. Continental Tire of the Americas, LLC In Curtis Oltmann v. Continental Tire of the Americas, LLC, 12 WC 11777, the petitioner injured his left wrist when he tripped and fell over a guard railing on January 31, 2012. X-rays taken shortly after the accident revealed a non-displaced fracture. The fracture was splinted, but surgery was not necessary. On February 29, 2012, the petitioner reported to his treating physician that he was feeling “a lot better” and he was released to return to full duty at maximum medical improvement. At that time, the treating physician indicated the petitioner had good range of motion, and suggested that any residual symptoms would improve over time. The treating physician, Dr. David Brown, prepared an AMA rating report finding that the petitioner had a zero percent impairment at the left wrist. The parties took Dr. Brown’s deposition, in support of his findings and treatment course, as well as the basis for his impairment rating. At arbitration, the petitioner testified that he had returned to his regular position, but still had some discomfort in his left wrist. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: Zero percent of the left wrist, per the treating physician, Dr.

Brown. The decision does not indicate whether the rating was requested by either party. 2. Occupation: The petitioner returned to his regular job. 3. Age: The arbitrator noted the petitioner was 49 years old as of the date of the accident,

but did not indicate how this impacted the permanency award. 4. Future earning capacity: There was no evidence of diminished future earning capacity. 5. Evidence of disability corroborated by medical records: The arbitrator noted the

petitioner continued to complain of “minor residual symptoms in the wrist.” There is no indication these complaints were substantiated by medical records.

The arbitrator ultimately awarded the petitioner five percent loss of use of his left hand. Martha Mansfield v. Ball Chatham Community School District #5 In Martha Mansfield v. Ball Chatham Community School District #5, 12 WC 14648, the petitioner injured her left knee while picking up some paper in the course and scope of her employment as a school custodian on November 3, 2011. An MRI taken approximately a month after the accident revealed small knee effusion and medial meniscal tear with an associated parameniscal cyst. On March 6, 2012, the petitioner underwent an arthroscopic partial medial meniscectomy and cyst decompression.

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On June 12, 2012, the petitioner was released to return to work without restrictions. At that time, the petitioner continued to complain of difficulty going down steps, and occasional sharp pains in her knee. Further, the petitioner reported ongoing slight stiffness of the knee. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: One percent of a lower extremity, which converted to a one

percent impairment of a person as a whole, per Dr. Michael Lewis. The AMA rating was performed at the request of the respondent, by a doctor chosen by the respondent.

2. Occupation: The petitioner returned to her regular position. 3. Age: The arbitrator noted the petitioner was 58 years old at the time of her injury. The

arbitrator’s decision specifically noted that there was “no testimony concerning how long she expected to continue to work.”

4. Future earning capacity: The arbitrator found the petitioner’s future earning capacity was “relatively undiminished as a result of the injuries.”

5. Evidence of disability corroborated by medical records: The arbitrator noted that the physical therapy records prior to the petitioner’s release indicated she continued to complain of pain, stiffness and difficulty walking up and down steps. The arbitrator found that the petitioner’s testimony regarding ongoing symptoms was corroborated by her medical records.

Ultimately, the arbitrator awarded the petitioner 17.5 percent loss of use of her left leg. The final paragraph of the arbitrator’s decision noted that, “In making a permanent partial disability evaluation, consideration is not given to any single factor as the sole determinate.” Michael W. Manion v. Old National Bank In Michael W. Manion v. Old National Bank, 12 WC 28686, the petitioner injured his right knee on March 27, 2012, while squatting down to pick up some materials. Imaging studies taken shortly after the accident revealed a partial tear of the right medial meniscus, which required arthroscopic repair. The petitioner underwent an arthroscopic partial medial meniscectomy on June 14, 2012. The petitioner was released from treatment at maximum medical improvement on July 15, 2012. This was a pro se settlement, and the petitioner had an opportunity to discuss his ongoing complaints with the arbitrator. The petitioner stated that he felt fine, but later acknowledged that he had some difficulty performing a full squat with his right leg. After being released, the petitioner returned to his regular job, without restrictions. Pursuant to section 8.1b, the arbitrator noted the following: 1. AMA impairment rating: Two percent of the right leg per Dr. Thomas L. Sutter. The

respondent requested and presented the AMA rating. The petitioner did not have a separate rating report.

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2. Occupation: The petitioner returned to his regular position as a building superintendent for the bank.

3. Age: At the time of the accident, the petitioner was 61 years old. The arbitrator noted that, at age 61, the petitioner may take longer to fully recover than a younger worker.

4. Future earning capacity: The petitioner did not present any evidence of diminished future earning capacity.

5. Evidence of disability corroborated by medical records: The petitioner repeatedly told the arbitrator that he felt fine. The arbitrator asked multiple times if there was anything the petitioner could tell her to assist in her evaluation of this case. Ultimately, the petitioner explained that he had some difficulty performing a full squat with his right leg. At the time he was released, the petitioner had told his treating physician that he felt fine. As such, the claim regarding an inability to perform a squat was unsupported by the medical records.

Ultimately, the arbitrator awarded the petitioner ten percent loss of use of a right leg. III. CONCLUSION

The update and news is a mixed bag thus far. Some arbitrators are not giving the AMA ratings their due in our opinion. Others are taking them into account in a clear and meaningful way. It is our job to make every arbitrator and commissioner understand the value and effect of the AMA ratings. We want the discounted values taken into consideration from this point forward in time. If it takes a deposition and some appellate filings to make it so, then it will be well worth the fight and eventual cost. Generally speaking, we are seeing a 15 percent to 20 percent reduction in the value of claims. The more intelligent petitioners’ attorneys understand that and are not fighting, but simply agreeing to the reduction. The other attorneys who are fighting, who are forcing depositions, simply do not want to capitulate to the law until they are forced to do so. Do not let them bully you as petitioners’ attorneys are apt to do in order to get their way. Do not let them fool you into thinking the AMA ratings are meaningless. We look forward to working with you on this very important fight as we educate the petitioners’ bar, the arbitrators and the commissioners so that the business community enjoy the fruits of their victory when the AMA guides and ratings were put into effect on September 1, 2011.

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Toney J. Tomaso

- Partner

Toney is a partner in the Urbana office who concentrates his practice in the areas of workers' compensation, third-party defense of employers, asbestos class action litigation, insurance coverage issues and automobile liability claims. Toney has successfully defended hundreds of workers' compensation claims before various arbitrators throughout the State of Illinois, as well as before all panels of the Illinois Workers' Compensation Commission. Toney was a member of a three attorney trial team which handled a class action lawsuit arising out of a medical malpractice class action which lasted approximately eight weeks in East Central Illinois. During the course of this litigation, he was required to depose approximately one-half of the class, prepare defense experts, and participate in all phases of the eight-week trial. Significant Cases Land v. Montgomery - Eight week medical

malpractice class action lawsuit. Public Speaking “Case Study: Respondent Attorney Trial

Strategy Perspective” SafeWorks Illinois 17th Annual Work Injury Conference, Champaign, IL (2009)

“Workers Compensation Law Update” Lorman Seminar (2008)

“Arising Out Of Issue – Do They Really Have All the Facts They Need” Heyl Royster (2008)

“Recent Developments In Workers’ Compensation” Risk and Insurance Management Society (2007)

Professional Associations Champaign County Bar Association Illinois State Bar Association Will County Bar Association Illinois Trial Lawyers Association Illinois Association of Defense Trial Counsel


Illinois Education Juris Doctor, Louisiana State University, 1995 Bachelor of Arts (Golden Key Honor Society),

University of Illinois, 1992


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Joseph K. Guyette

- Associate

Joe began his career with Heyl Royster, clerking in the Urbana office. Following graduation from law school, he joined the firm's Urbana office as an associate in August of 2004. During law school, he served as Articles Editor for the University of Illinois Journal of Law, Technology & Policy. Joe concentrates his practice in the areas of workers' compensation defense, professional liability and employment matters. Joe devotes a portion of his practice to representing the firm's clients at depositions of plaintiffs and fact witnesses in asbestos personal injury matters. Joe has taken several bench and jury trials to verdict, and has drafted and argued numerous dispositive motions. Joe has handled workers' compensation arbitration hearings at venues throughout the state, and has argued multiple cases before the Workers' Compensation Commission. Joe regularly handles depositions of expert witnesses and treating physicians in both civil and workers' compensation matters. Publications "Review of a Workers' Compensation Claim,"

Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2011)

"Settlement Contracts – New Law and What You Need to Know," Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2009)

Professional Recognition Named to the 2012 and 2013 Illinois Super

Lawyers Rising Stars list. The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation.

Professional Associations Illinois State Bar Association Champaign County Bar Association


Illinois Education Juris Doctor, University of Illinois, 2004 Bachelor of Science-Environmental Science,

Bowling Green State University, 2001


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BUSINESS PERSPECTIVE ON WORKERS’ COMPENSATION REFORM – HOW DID WE GET HERE AND WHERE WE WOULD LIKE TO GO

Presented and Prepared by: Doug Whitley

President and CEO Illinois Chamber of Commerce



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Doug Whitley

- President and CEO, Illinois Chamber of Commerce

As president and CEO of the Illinois Chamber of Commerce, Douglas L. Whitley leads the Chamber’s charge to aggressively promote the interests of Illinois business. Whitley has been a registered Illinois lobbyist for more than 30 years. Whitley has a long record of business leadership and expertise in taxation and regulation, which he has earned in a career spanning the public and private sectors. Before joining the Illinois Chamber, Whitley was President of Ameritech Illinois. Whitley served two years as Director of the Illinois Department of Revenue during the administration of Governor Jim Edgar. Prior to that, Whitley was president of the Taxpayers’ Federation of Illinois for 14 years. In earlier years, he was a legislative staff member in the Illinois House of Representatives. Throughout his career, Whitley has held leadership positions with numerous business and civic organizations. Whitley co-founded and co-chairs the Transportation for Illinois Coalition. Whitley’s other leadership positions have included the Illinois Business Roundtable, Chicagoland Chamber of Commerce, the Economic Club of Chicago and Chicago’s Work Force Development Board. Whitley has served on numerous commissions and advisory boards including Governor Quinn’s Economic Recovery Commission, the Advisory Board to the Illinois Department of Employment Security and the Illinois Workforce Investment Board of the Illinois Department of Commerce and Economic Opportunity. A lifelong Illinois resident, Whitley spent his youth in Atwood, a small, central Illinois farming community of 1,200, where he achieved the rank of Eagle Scout. Whitley holds a bachelor’s degree in government and history from Southern Illinois University. Western Illinois University granted him an honorary doctorate degree. Whitley and his wife Joanne live in Kane County; they have three children.

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2011 AMENDMENTS – A VIEW FROM THE TRENCHES

Presented and Prepared by: Bruce L. Bonds

[email protected] Urbana, Illinois • 217.344.0060



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2011 AMENDMENTS – A VIEW FROM THE TRENCHES I. PREFERRED PROVIDER PROGRAMS ..................................................................................................... G-3 II. THE “SYSTEM” AS VIEWED FROM THE TRENCHES ........................................................................ G-6

A. Appointments ................................................................................................................................ G-6 B. News from the Venues ............................................................................................................... G-6

1. 19(b) Hearings ................................................................................................................ G-6 2. Venue Procedures: ........................................................................................................ G-6 3. Pro se Settlements ........................................................................................................ G-7 4. General Observation About Downstate Venues................................................ G-7

III. UTILIZATION REVIEW: POTENTIAL PITFALLS .................................................................................... G-7

A. Which Guidelines Must Be Used to Evaluate Treatment? ............................................. G-7 B. Cooperation with Utilization Review .................................................................................... G-8 C. Is a Utilization Review Required Before Treatment May Be Denied? ....................... G-8 D. Burden of Proof: Section 8.7(4) ............................................................................................... G-9 E. Depositions ..................................................................................................................................... G-9 F. Penalties........................................................................................................................................... G-9 G. Utilization Review Appeals ....................................................................................................... G-9 H. Must All Utilization Review Functions Be Performed

within the State of Illinois? .................................................................................................... G-10 I. Can I Obtain a Utilization Review and a Section 12 IME? ........................................... G-10 J. Is the Utilization Review Determination Dispositive? ................................................... G-10 K. Beware of Petitioner’s Counsel Laying in the Weeds! .................................................. G-11 L. Conclusions and Observations Regarding the Use of

Utilization Review From the Trenches ................................................................................ G-11 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

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2011 AMENDMENTS – A VIEW FROM THE TRENCHES As we approach the two-year anniversary of the implementation of the 2011 Amendments to the Illinois Workers’ Compensation Act, we are beginning to be able to discern the practical effect of these amendments on our day-to-day practice. I. PREFERRED PROVIDER PROGRAMS

By way of background, the 2011 Amendments created a program called “PPPs” or Preferred Provider Program which are networks to be utilized for the treatment of work related injuries. The intent of PPPs was to give the employer some measure of control over where the employee seeks treatment and to help ensure that the treatment rendered for work related injuries is cost effective and improved outcomes. The amendments mandated the following requirements for all PPPs:

(1) The provider network shall include an adequate number of occupational and non-occupational providers.

(2) The provider network shall include an adequate number and type of physicians or other providers to treat common injuries experienced by injured workers in the geographic area where the employees reside.

(3) Medical treatment for injuries shall be readily available at reasonable times to all employees. To the extent feasible, all medical treatment for injuries shall be readily accessible to all employees.

(4) Physician compensation shall not be structured in order to achieve the goal of inappropriately reducing delay or denying medical treatment or restricting access to medical treatment.

(5) Before entering into any agreement, the program shall establish terms and conditions that must be met by non-institutional providers, wishing to enter into an agreement with the program. These terms and conditions may not discriminate unreasonably against or among non-institutional providers.

At its most basic, the PPP must be in place at the time of the accident; the employer will provide a written list of physicians in the program to an injured worker upon notice of the injury. The employer is then responsible for the payment of all medical expenses and referrals from the PPP physician. If an employer does not establish a PPP, the injured worker retains the right to the choice of two physicians (similar to the law prior to the 2011 Amendments). The injured worker also has the right to decline the program in writing. The employee is then limited to the choice of only one physician. If an injured worker believes the medical care provided by the PPP physician has been inadequate or improper, he can file a written petition with the Illinois Workers’ Compensation Commission. Within five days of hearing, the commission must render a decision regarding the

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case. If it is determined that the care has been inadequate or improper, then the injured worker’s choice of physician is reinstated. Although the use of PPPs became effective immediately upon the Governor’s signature back in the summer of 2011, the Department of Insurance spent nearly two years establishing rules to govern the implementation and use of Preferred Provider Programs. These rules have been published and were effective as of March 4, 2013. They can be accessed via links from the commission website at www.iwcc.il.gov. There are currently only six workers’ compensation Preferred Provider Programs who have sought and obtained approval from the Illinois Department of Insurance. They are as follows: Corvel Healthcare Corp. Coventry Healthcare Workers’ Compensation, Inc. HFN, Inc. Quality First Medical Centers, Inc. Aetna Workers’ Compensation Access, LLC Continental Indemnity Co. When the injured employee notifies the employer of the injury, or files a claim for workers’ compensation with the employer, the employer must notify the employee of their right to be treated by a physician of his/her own choice from the preferred provider network and a method by which the list of participating network providers may be accessed. The commission has created a form to provide this notice.

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________ Employer name/letterhead

NOTICE OF PREFERRED PROVIDER PROGRAM

FOR WORKERS' COMPENSATION MEDICAL CARE Underlined spaces are fill-in-the-blank fields.

(employer) has received your report of a work-related injury. Please be advised that we have established a Preferred Provider Program (PPP) for medical treatment for workers' compensation cases, pursuant to the Illinois Workers' Compensation Act (820 ILCS 305/8(a) and 8.1(a). Our PPP has been approved by the Illinois Department of Insurance as required under the Act. (employer) recommends that you obtain your medical care from the PPP network for any work-related injury because we believe it will provide good treatment for you. You may decline to be treated by providers in our PPP now or at any time throughout your treatment for this work-related injury. Such declination must be made to us in writing, and will count as one of your two choices of medical providers. We may not be required to pay for medical services outside or beyond your two choices of medical providers and the chain of referrals therefrom. However, not receiving treatment from our PPP will not be considered a choice of physicians if: 1) there is no medical provider in the PPP that provides treatment you need and you comply with all pre-authorization requirements; or 2) the Illinois Workers' Compensation Commission has determined that the treatment provided to you by our PPP is inadequate. To obtain the list of medical providers in the PPP, _________________________. To decline participation in the PPP, you must do so in writing; direct it to _________________________. If you have questions about the employer's PPP network, please contact _________________________. If you have any questions about your rights under the law, please call the Public Information Unit at the Illinois Workers' Compensation Commission at 312/814-6611, toll-free 866/352-3033, email the IWCC at [email protected], or check the Commission's website at www.iwcc.il.gov/. Received by: _________________________________________________

Signature _________________________________________________

Name (please print) _________________________________________________

Date IWCC 10/18/11

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Although PPPs were provided for by the statute nearly two years ago, their use is in its infancy. Experience gained from employers operating in other states suggest that PPPs may result in reduced employer costs while delivering higher quality and improved medical results. Whether that is true or not remains to be seen. II. THE “SYSTEM” AS VIEWED FROM THE TRENCHES

A. Appointments

Chairman Mitch Weisz who had headed the Illinois Workers’ Compensation Commission since March 22, 2010 was not reappointed by the Governor. On March 25, 2013, Governor Quinn appointed commissioner Michael Latz as chairman. Chairman Latz was formerly a “public” commissioner. At the time of his appointment he used a statement indicating:

I am honored to serve as chairman and grateful for this opportunity. I will do everything in my power to make the workers’ compensation program successful and to continue implementing the legislative reform. I will enthusiastically work to ensure that claims are resolved fairly and promptly. Please feel free to e-mail me at [email protected] or call at 312-814-6560.

Prior to his appointment to be chairman, Latz had served as a commissioner since October 2011. Governor Quinn also renewed the appointments of business commissioners Mario Basurto and Ruth White, as well as the employee representative, commissioner Tyrrel. Former commissioner Yolaine Dauphin was not reappointed and with the promotion of former commissioner Latz, there are now two “public member” commissioner slots open on the commission.

B. News from the Venues

1. 19(b) Hearings

Many downstate arbitrators are now requiring pre-trial hearings before proceedings on any emergency hearing filed under section 19(b).

2. Venue Procedures:

Many downstate arbitrators are attempting to streamline the process on the docket call days by use of a system of cards carrying letters and numbers, rather than having attorneys stand in long lines for extended periods of time. Under the current system, especially in Zone 2, attorneys will take a numbered card from the stack which will represent their “place in line” for routine and non-contested matters, and a “lettered” card from a stack which will give them their “place in line” for contested matters, pre-trial matters or any other non-routine matters.

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3. Pro se Settlements

Pro se settlements are generally reviewed at 1:00 p.m. on the date of the docket call and with the exception of extremely small dockets (such as Quincy), there are no cases arbitrated on the date of the docket call. The attorneys in our practice group are often asked whether a settlement or proposed settlement with a pro se will be approved. The answer is “depends on the arbitrator.” Some arbitrators will aggressively insist on higher settlement amounts, notwithstanding an AMA rating. Others will more or less “rubber stamp” virtually any agreement. Under the current system, although each case must be formally filed and assigned a “WC” number before being presented for contract approval, a pro se petitioner can be presented for contract approval before any arbitrator presiding at the venue to which their case has properly been assigned. In a “close case,” please contact us to discuss when and before whom you might wish to present your pro se petitioner for settlement approval.

4. General Observation About Downstate Venues

With the elimination of a number of downstate venues, there are significantly more cases assigned to each docket than prior to the 2011 Amendments. In most instances, no cases are arbitrated on the docket call day. The consolidation has also caused a fair amount of inconvenience for the parties and their attorneys. For example, a petitioner who lives and was injured in Danville, Illinois, now part of Zone 2, would have their case venued in Urbana. It is possible, however, that should they wish to proceed on an emergency hearing under section 19(b), they might have to request a hearing in Quincy, Illinois, on the opposite end of the state, depending on where the arbitrator to whom the case has been assigned is presiding that particular month. III. UTILIZATION REVIEW: POTENTIAL PITFALLS

Under Section 8.7 of the Amendments to the Workers’ Compensation Act, “utilization review means the evaluation of proposed or provided healthcare services to determine the appropriateness of both the level of healthcare services medically necessary and the quality of healthcare services provided to a patient . . . the evaluation must be accomplished by means of a system that defines the utilization of healthcare services based on standards of care of nationally recognized peer review guidelines, as well as nationally recognized treatment guidelines on evidence base medicine based upon standards as provided in this Act . . .”

A. Which Guidelines Must Be Used to Evaluate Treatment?

There are a number of different guidelines for evaluating the efficacy of treatment. To date, Illinois has not adopted or accepted any specific set of guidelines.

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1. Many of the “guidelines” themselves are proprietary and can only be viewed if

purchased.

2. Beware of doctors retained to perform utilization reviews based on one set of guidelines or another if they do not follow those same guidelines in their practice!

B. Cooperation with Utilization Review

Section 8.7 further indicates “upon receipt of written notice that the employer, the employer’s agent or insurer which is to invoke the utilization review process, the provider of medical, surgical, or hospital services shall submit to the utilization review following the procedural guidelines.” The provider shall make reasonable efforts to provide timely and complete reports of clinical information needed to support a request for treatment. If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable nor collectable by the provider or petitioner from the employer, the employer’s agent, or the employee. The reporting obligations of provider shall not be unreasonable or unduly burdensome.

- What does this mean? - What is a failure to make a “reasonable effort” that would support a denial of

payment? - What obligations placed on a provider would be considered “unreasonable” or

“unduly burdensome?”

C. Is a Utilization Review Required Before Treatment May Be Denied?

Section 8.7 further indicates:

(i)(3) An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section.

1. The petitioner’s counsel will argue that the reasonableness and necessity of

treatment cannot be attacked via an IME/Section 12 examination, but only under a utilization review as provided in this Section.

2. Note that this section does not use the typical words “reasonable and necessary,”

however. It refers to deny in treatment which is “excessive and unnecessary.”

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3. Be careful: If you deny treatment without a utilization review, you may have waived the issue and subjected your insured penalties.

D. Burden of Proof: Section 8.7(4)

When a payment for medical services has been denied or not authorized by the employer or when authorization for medical services is denied pursuant to utilization review, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review pursuant to subsection (a) is reasonably required to cure or relieve the effects of her injury.

- What evidence must a petitioner marshal to show by a preponderance of the evidence that a variance is necessary?

- At a minimum, must petitioner provide the utilization review to the treating physician and obtain a report outlining the reasons for the need for the variance?

E. Depositions

The 2011 Amendments address the process by which a deposition can be taken of the utilization review medical professional. It further indicates “the expense of interview and the deposition method shall be paid by the employer.”

- What does this mean? - Some plaintiffs’ attorneys claim they are entitled to attorney’s fees and expenses for

taking the deposition.

F. Penalties

A valid utilization review report may shield the employer from the imposition of penalties but it is not dispositive on the issue of the reasonable necessity of the treatment. Section 8.7 clearly states “[a]n admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment.”

G. Utilization Review Appeals

The utilization review process provides for at least two levels of appeal where treatment has been denied or non-certified. Both the plaintiff and the treating physician may initiate those appeals. Is the plaintiff required to exhaust their appeal remedies before seeking hearing on the reasonableness and necessity of proposed treatment?

- NO! Although this would be common sense, strictly interpreted, the act does not require that all appeals be exhausted before seeking hearing under section 19(b).

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H. Must All Utilization Review Functions Be Performed within the State of Illinois?

- NO! Although the Director of Department of Insurance issued a bulletin on December 20, 2012 reporting to require all utilization review functions be performed in the State of Illinois, this was subsequently clarified in a subsequent bulletin of January 19, 2013 to indicate that utilization review functions can be performed anywhere in the continental United States.

I. Can I Obtain a Utilization Review and a Section 12 IME?

- YES! In serious cases it would be wise to do so. Recommended practice would be to obtain a utilization review and submit that report along with all of the other medical records to your examining physician for comment. This should enhance the credibility of the utilization review report and might be a way of getting it into evidence without the need for a deposition under a utilization review doctor.

J. Is the Utilization Review Determination Dispositive?

- NO! Pursuant to section 8.7(i)(5):

An admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this Section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12.

But do not accept petitioner’s argument that the utilization review should not carry significant weight. As former Arbitrator Giordano stated in Albert v. Roadway Express, 05 IL.W.C. 22555, 08 I.W.C.C. 0216, 2008 WL 728102 (Feb. 25, 2008), where some treatment was approved and other treatment was denied (2:1), he:

[P]resumes that the Legislature, applying URAC guidelines in the Statute, did not intend to give complete deference to opinions of treating physicians over that of examining physicians. Otherwise, the creation of utilization review programs would be meaningless and have no real effect on the determination of the appropriateness of the level of care and the treatment that is provided.

Arbitrators, commissioners, judges and even members of the petitioners’ bar need to be reminded of this! Moreover, the Guides to the Evaluation of Permanent Impairment, Sixth Edition themselves indicate “although treating physicians may perform impairment ratings on their patients, it is recognized that they are not independent, therefore, maybe subject to greater

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scrutiny.” While that refers to AMA evaluations and not utilization reviews, the bias remains the same.

K. Beware of Petitioner’s Counsel Laying in the Weeds!

The recent appellate court decision of Edmar Heating and Cooling v. IWCC, 2011 IL App (2d) 101250WC-U, in a Rule 23 order provided an interesting real world example of the type of thing that often happens at arbitration. Although the employer had sent petitioner’s counsel a letter four months prior to the hearing communicating its intent to introduce a utilization report into evidence during the hearing, petitioner did not indicate that he was objecting to the report until the employer’s counsel moved to introduce it at the hearing. The employer argued that the petitioner had waived any objection to the admission of the report by oscillatory conduct and that the report should have been admitted. The appellate court disagreed, eventually holding that “no response is not the same as acquiescence.” As a practical matter, the employer could have and should have moved for a continuance so the author of the report could testify and be cross examined at the hearing. Unfortunately, in this case the employer failed to do so. Accordingly, the commission’s decision to exclude the report was found by the appellate court not to be an abuse of discretion.

L. Conclusions and Observations Regarding the Use of Utilization Review From the Trenches

1. There is a significant amount of over treatment and perhaps even more since the effective date of the 2011 Amendments which reduced medical provider compensation by an additional 30 percent.

2. Utilization review non-certification has a stronger chance of being followed by

the commission and courts when it addresses physical medicine treatment such as chiropractic care and physical therapy.

3. Generally speaking, utilization review non-certification is less likely to prevail

where surgery and other invasive treatments are recommended and there is credible evidence of chronic pain or other disability.

4. It is important to use high quality utilization review performed by doctors who are of the same qualification as treating doctors, who are well versed in treatment standards, write thorough reports and are experienced at giving deposition testimony.

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Bruce L. Bonds

- Partner

Bruce is a past Chair of our state-wide workers'

compensation practice group and has spent his entire legal career with Heyl Royster beginning in 1982 in the Peoria office. He concentrates his expertise in the area of workers' compensation, third-party defense of employers, and employment law. He served as a technical advisor to the combined employers group in the negotiations which culminated in the 2005 revisions to the Illinois Workers' Compensation Act. More recently, Bruce worked as a technical advisor to the Illinois Chamber of Commerce as well as a number of Illinois legislators and State agencies in the process that resulted in the 2011 Amendments to the Illinois Workers' Compensation Act.

Bruce was appointed by Mitch Weiss, Chairman of the Illinois Workers' Compensation Commission, to a committee of attorneys who reviewed and made recommendations for revisions to the Rules Governing Practice before the Workers' Compensation Commission.

With extensive experience before the Illinois Workers' Compensation Commission, Bruce has defended employers in thousands of cases during the course of his career. As a result of his experience and success, his services are sought by self-insureds, insurance carriers, and TPAs.

Bruce is an Adjunct Professor of law at the University of Illinois College of Law where he has taught Workers' Compensation Law to upper-level students since 1998.

Bruce has co-authored a book with Kevin Luther of the firm's Rockford office entitled Illinois Workers' Compensation Law, 2009-2010 Edition, which was published by West. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. The 2012-2013 Edition of this treatise was published in October of 2012, and is scheduled to be updated annually.

Bruce is a frequent speaker on workers' compensation issues at bar association and industry-sponsored seminars.

Bruce has served as Vice-Chair of the ABA Committee on Employment, Chair of the Illinois State Bar Association Section Council on Workers' Compensation, and currently serves on the Employment Law Committee of the Chicagoland Chamber of Commerce and the Illinois Chamber of

Commerce Workers' Compensation Committee. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin; another survey published recently by Chicago magazine named Bruce one of the "Best Lawyers in Illinois" for 2008. Professional Recognition Martindale-Hubbell AV Rated Inducted as a Fellow in the College of Workers'

Compensation Lawyers Selected as a Leading Lawyer in Illinois. Only


Named to the Illinois Super Lawyers list (2012-2013). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Professional Associations Illinois State Bar Association (Past Chair

Workers' Compensation Law Section Council) Champaign County Bar Association Illinois Association of Defense Trial Counsel

(Member, Workers' Compensation Committee) Defense Research Institute Illinois Self-Insurers Association



Education Juris Doctor, Washington University School of

Law, 1982 Bachelor of Arts-Finance, University of Illinois,

1979


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MAKING CANDID CAMERA WORK: YOU HAVE THE GOODS ON THE PETITIONER, HOW DO WE GET IT INTO EVIDENCE?

Presented and Prepared by: Stacie L. Hansen




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I. AUTHENTICATION ...................................................................................................................................... H-3

A. Proving the Evidence Accurately Reflects What Appeared on the Site ................... H-3 B. Proving the Evidence Is Attributable to a Certain Person ............................................. H-5

II. RELEVANCE .................................................................................................................................................... H-8

A. Addressing Relevance Issues Prior to Trial ......................................................................... H-8 B. Relevance Issues to Overcome for Trial Admissibility .................................................... H-8 C. Probative Value Must Outweigh Unfair Prejudice ........................................................... H-9

III. HEARSAY ........................................................................................................................................................ H-9

IV. BEST EVIDENCE ......................................................................................................................................... H-10

V. CONCLUSION ............................................................................................................................................ H-10


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Social media is a useful source of information on plaintiffs, witnesses, experts, and jurors. There are many ways in which social media evidence can be used in litigation. It can have a profound impact on a case and the information is readily available depending on an individual’s privacy settings. Although this information is available and can be very accessible, getting social media into evidence is a very complicated matter. Since the use of social media in litigation is relatively new, we do not have any specific rules on how to overcome evidentiary hurdles in order to make the information admissible. Until such rules are developed and case law guidance becomes more available, it is very difficult to say with any certainty whether a judge will admit it into evidence. Below, we will address the primary issues affecting the admissibility of social media evidence with tips and recommendations on its effective use. The main hurdles to the admissibility of social media information are: authentication, relevance, hearsay, and the best evidence rule. These hurdles must be addressed in all cases, whether tried before a judge, a jury or an administrative body (such as the workers’ compensation commission). I. AUTHENTICATION

Illinois law requires that evidence be authenticated in order to be admissible. The Illinois rules on authentication are Illinois Rules of Evidence 901-903. The party seeking to admit the evidence bears the burden of showing that there is sufficient evidence “to support a finding that the matter in question is what its proponent claims.” Evid. Rule 901(a). The rule outlines various methods of satisfying the authentication requirement. Many of these options will not be useful in authenticating social media evidence. For example, the act allows for authentication of handwriting by a non-expert opinion or identification through voice recognition. Obviously, since social media evidence is purely electronic, it cannot be authenticated in this fashion.

A. Proving the Evidence Accurately Reflects What Appeared on the Site

A printout from a social media site or a screen grab of the social media site can be authenticated under Rule 901 through the testimony of a witness with knowledge. Many adjusters and attorneys will perform social media searches to gather evidence. When informally discovering this evidence, the best practice is to preserve this evidence immediately. Social media is constantly changing and posts can be deleted very easily. For this reason, immediate preservation is essential. However, preservation through printouts alone is not enough. Whoever accesses the information must properly preserve it. The individual must be able to demonstrate when it was accessed, from where it was accessed, and that the resulting printout is a true and accurate copy of the information obtained on that date. That individual must also be available to authenticate the information at trial. Authentication at trial will generally involve

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testimony confirming that the printout accurately reflects what appeared on the website on the date it was accessed. This is similar to the steps used to authenticate a photograph or other demonstrative evidence. This aspect of authentication is relatively easy to secure, but consideration needs to be given to who is the best person to testify about authenticity. Although attorneys, paralegals and adjusters frequently perform these types of searches, it is always best practice to elicit this testimony through an independent witness or investigator. Attorneys cannot call themselves to the stand to testify about how they gathered this information. Claims representatives are also not the best choice to testify about preservation and collection of this data. Initial searches may be performed by attorneys or claims personnel; however, once the information is located, strategic decisions must be made as to how the evidence can be used and how to preserve it. In workers’ compensation cases or cases involving an employee/employer relationship, these searches should never be done by the employer or the human resources department. The NLRB has issued various memoranda addressing the proper use of social media in the workplace. Even in situations where a union is not involved, an employee is protected by the NLRB. When employers gather this information, they potentially open themselves up to charges by the NLRB. Furthermore, Illinois’ Right to Privacy in the Workplace Act, 820 ILCS 55/10, makes it illegal for employers to request or require an employee or prospective employee to facilitate access to the person’s social media website. The act further makes it illegal to demand access in any manner to an employee’s account or profile. This is an issue that could create serious employment law implications. The language in this statute is relatively vague and open to some interpretation. One could argue it is illegal for an employer to send a Facebook “friend” request to an employee. Given these complicated legal issues, it is best for employers to avoid doing these searches. Instead, the employer should request these tasks be completed by their insurance carrier or the attorney. Regardless of who is performing the search, it is imperative that the search be performed by individuals with knowledge of the proper use of these sites. Attorneys must comply with the rules of ethics in performing these searches. Claims personnel must also abide by the Illinois Insurance Code and other ethical requirements. While Illinois does not have any laws in place specifically addressing such searches, the generally accepted practice is that anything in the public domain can be searched and obtained without incident. Individuals are not allowed to have any contact with a represented party. This means that when a party is represented you cannot send a “friend” request, subscribe, follow, connect, private message, or communicate in any way with that party. Further, you cannot use “pretexting” to gain access to an individual’s page. This means that you cannot pretend to be someone else, nor can you gain access through any deceptive means. It can be very easy to violate these rules if the search is performed by someone that does not completely understand how these sites work.

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B. Proving the Evidence Is Attributable to a Certain Person

The more complicated issue with authenticating social media information is proving that the information comes from the source the proponent claims posted it. For example, during an informal search, an attorney locates a plaintiff’s social media profile. The attorney recognizes the plaintiff’s picture as the profile picture and confirms the date of birth, location, and place of employment. Later, at trial, the plaintiff takes the stand and denies that it is her profile, claims that she did not make a particular statement, or claims that her site was hacked. When this happens, it can be nearly impossible to lay a proper foundation for authentication from the printout. This is because the printout has no independent method for authentication on its own merit. In workers’ compensation cases and other matters with no discovery, the best option for authenticating social media posts is through circumstantial evidence. It is much easier to authenticate photographs from social media sites than written posts attributable to the petitioner. For photographs, authentication can be completed by the individual laying the foundation for the evidence. For authentication of posts, the circumstantial evidence needs additional verifiable information from the profile to show the profile likely belongs to the petitioner. This type of evidence includes, but is not limited to: profile pictures, hometown, relationships with family members’ pages, work histories and educational histories. Courts have held that the burden of proof for authentication in this fashion requires only that there is sufficient evidence for the trier of fact to decide whether they believe the profile is in fact the petitioner’s. In civil matters, attorneys should take some additional steps to satisfy the authentication requirements as there are additional tools that can be used to secure this evidence before trial. In civil matters, attorneys first need to issue preservation letters to ensure that a plaintiff does not delete or alter the evidence on the social media sites. Written discovery can be used to force the plaintiff to identify any and all of their social media accounts. Requests to produce can be used to get copies of the plaintiff’s page, messages, and posts on other pages from them. Authorizations can be requested which allow the social media sites to release information about the owners of pages, the content of the pages, and IP addresses used to access and post on that page. Requests to admit are useful tools to address and overcome authentication issues. Depositions are a good time to obtain admissions on posts, confirmation of ownership of profiles, and admissions on social media use. It is important too for attorneys, defendants and claims handling personnel to consider authentication issues throughout the entire handling process. Without prompt attention to these issues as they arise, there is a greater chance that there will be more difficult authentication issues as the case comes close to trial. There are various ways to obtain admissible Facebook evidence. As stated above, obtaining a consent to release private Facebook information is the easiest option. The release should identify the name of the person giving consent, a statement that he or she is the owner of the account associated with the specific profile user ID, and the login email address. It should then advise the social media site that it is voluntarily authorized to release reasonably available data

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from the social media profile for a designated period of time. The authorization should also contain language stating that the authorizer will indemnify the social media site against all claims for damages, compensation, and/or costs with respect to damages or losses to a third party resulting from the release of the data. Finally, the release should state to whom the site is authorized to release the data. Typically, this should be the user or the user’s legal representative. Some of the areas which can be requested are: profile information, recent logins (past 2-3 days from process date), status updates, notes, shares, wall posts, friends list, groups, events, videos, applications, received messages, sent messages, photos and users’ comments. The authorization should be signed and notarized. An alternative for collection of social media evidence is the plaintiff’s consent for the profile to be accessed for the purpose of collecting information. This requires the plaintiff to provide his username, login email and password to a third party, such as a forensic examiner, to perform the collection of data. Generally, plaintiffs are more uncomfortable giving their password than authorizing Facebook to release the information. Another feature Facebook provides is the ability for a user to download an archive of their entire Facebook page. This is not a forensic tool and it only captures what is currently on the page. It does not give access to deleted information and can be easily manipulated. However, for initial discovery purposes, plaintiffs might find this more agreeable that the previous two methods. The download archive function will include the following: active sessions, account status changes, address book, city and hometown information, data authentication cookies (which could potentially be used to tie the profile back to another device), email addresses, family members connected to the profile, notification settings, phone numbers, recognized devices (identifies phones that are connected to the profile), photos, posts, friend lists, groups, messages and info profiles. In some cases it may be necessary to try to obtain a forensic examination of a plaintiff’s computer or cell phone. The forensic examiner can examine the hard drive and determine whether the computer was used by a particular person, whether a social media site was accessed from that computer, and whether a particular post was viewed by the computer. This type of evidence is very strong evidence that the user of the computer is the source of a post. Forensic examinations of computers, smart phones, and other devices used to access a page may provide sufficient information from secondary sources (internet history, recovered pages from the hard drive, notification emails) to show that the owner of the device is the owner of the profile. It is very difficult to authenticate an individual’s profile through the social media sites themselves without authorization from the profile owner. Even though the absolute best method of authentication is from the original source, it is not always possible with social media due to the Stored Communication Act. Under this act, social media sites are not permitted to release profile content to anyone other than profile owners. The act even prohibits production of content from a profile upon receipt of a civil subpoena. In Thayer v. Chiczewski, the court held that there is no civil court exception to the Stored Communications Act. Thayer v. Chiczewski, No. 07 C 1290, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009). If one cannot obtain consent or authorization from

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the profile owner, the last alternative is to subpoena the social media site for basic subscriber information. The Stored Communication Acts permits sites to provide basic information in response to a civil subpoena when the information is indispensible to the case and not already within the party’s possession. In the case of Facebook, this requires a valid California or federal subpoena which is personally served on Facebook’s registered agent. In response, Facebook may produce basic subscriber information including access logs showing the creation date and time of the user’s profile. As part of this information, the IP address that was used to access the internet and create the profile will be produced. Upon obtaining this general information, one would next need to send a separate subpoena to the internet service provider to obtain the user’s (plaintiff’s) IP address. This method is complicated, since a home with a router will have one IP address but could have multiple devices connecting to it. Also, if the plaintiff uses free Wi-fi services, such as those offered at McDonalds and Starbucks, there is no way to confirm it was the petitioner who accessed that IP address. Finally, the IP address may belong to a business that has many computers connected it. This method is obviously very work intensive and there is no guarantee that it will provide favorable results. Given the difficulty in authenticating social media evidence, this evidence is used infrequently at trial. Despite these difficulties, social media evidence is still a very important part of claims handling. Social media evidence can be used to push for a more reasonable settlement, it can provide useful background information on various individuals involved with a claim, and it may lead you to the discovery of other more easily authenticated information than can be uncovered using other methods. In most cases, social media evidence is not the “smoking gun” - type of evidence that a case hinges upon. In those types of cases, it is worthwhile to take these additional steps necessary to make the evidence admissible. In more cases, the information discovered on social media can lead your investigation down new avenues, potentially provide you with better defenses, and affect your evaluation of a claim. This is especially true in Illinois workers’ compensation cases. Full authentication is nearly impossible for comp cases. However, profiles may provide information about the petitioner’s outside interests. For example, the petitioner may post about or “like” specific musical groups. These musical groups may be performing a concert near the petitioner’s home town. Traditional surveillance can be obtained of the petitioner at that event. Alternatively, the petitioner may be an avid bowler, equestrian, landscaper, motor cross rider, tennis player, etc. Social media may provide information about where the petitioner frequently performs these activities and at what time the petitioner is frequently there. Again, one can obtain surveillance of these locations. Another possibility is that a petitioner may post information about vacation plans. Even if that petitioner plays it safe at home because he is aware of the potential for surveillance, he will likely never expect to be watched on vacation where he feels free to let his guard down. In situations where the social media evidence cannot be used to develop more easily authenticated evidence, attorneys can argue that there is sufficient evidence in the profile for its admission into evidence. Unfortunately, there is simply no way to confirm prior to trial whether the arbitrator will find these arguments compelling.

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II. RELEVANCE

In order for evidence to be admissible, it must also be relevant to the cause of action. This means that the evidence must have sufficient probative value to warrant admission.

A. Addressing Relevance Issues Prior to Trial

Relevancy will likely need to be addressed prior to trial to overcome any objections to formal discovery requests. When using formal discovery methods to obtain/request social media evidence from parties with private profiles, it is common to object to the request based on relevance. When attempting to discover social media evidence, claims personnel, attorneys and defendants need to be realistic about what information they most likely will be able to obtain and tailor their requests accordingly. The scope of the requests must not be an overly broad fishing expedition. In Keller v. National Farmers Union Property & Casualty Co., the court denied a request for, “a full printout of all of social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from [date of accident] to the present.” Keller v. National Farmers Union Property & Co., No. CV 12-72-M-DLC-JCL, 2013 WL 872066 (D. Mont. Mar. 8, 2013). That being said, many courts have ruled that social media evidence is itself discoverable. In EEOC v. Simply Storage Mgmt., LLC, the court held that social media content is discoverable regardless of whether the profile user deems the content “private.” EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010). Illinois has very liberal discovery policies which make relevant all evidence that is reasonably calculated to lead to the discovery of relevant information. Given this threshold, courts are more likely to allow attorneys to discover private social media evidence when the requests are not overly broad. Sometimes a user’s public profile contains evidence suggesting that there is more discoverable, relevant information in their private profile. In order to argue for its discovery, informal social media searches must be conducted first. The public information can be submitted to the judge in arguing for an order to compel production. Requests for the production of private data should be narrowly tailored to a specific social media site and to relevant periods of time in order to defeat relevance objections from plaintiff’s counsel.

B. Relevance Issues to Overcome for Trial Admissibility

Consideration must also be given to whether social media evidence will be deemed relevant and admissible at trial. Pursuant to the Rules of Evidence, this means that the proffered information must have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Courts must consider whether the evidence has a direct and logical connection to the proposition to be proved. When there is a reasonable connection, the evidence will be deemed

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relevant. Most often, social media evidence is used in civil litigation to undermine the plaintiff’s allegations of mental anguish, depression, or significant injury.

C. Probative Value Must Outweigh Unfair Prejudice

Evidence is also inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the trier of fact, or creates undue delay. If a plaintiff objects to the admission of social media evidence on the ground of unfair prejudice, the judge will consider the effect the evidence will have on the parties’ ability to have a fair trial. If the nature of the social media evidence would unfairly influence or mislead the trier of fact, it will be deemed inadmissible at trial. One potential example involving social media would be photographs of a plaintiff smoking marijuana at a party three months after the accident. If there is no indication that the plaintiff was high at the time of the accident in question, the photographs likely will be found inadmissible. The photographs would unfairly prejudice the plaintiff as they would only serve to turn the trier of fact against him for reasons unrelated to the cause of action. III. HEARSAY

A third potential hurdle to the admissibility of social media evidence is hearsay. Hearsay is an out of court statement that is offered for the truth of the matter asserted. Generally, hearsay is inadmissible at trial. However, there are various exceptions to the “hearsay rule” that may offer arguments for the admission of certain hearsay social media statements. For example, when the individual who made the statement on social media is available as a trial witness, the hearsay statement may be admitted to show a then-existing mental, emotional or physical condition. The statement in question must be made to establish the then-existing state of mind, emotion, sensation or physical condition. This can be useful as many people post to social media as events are happening. Other exceptions that apply when the witness is available at trial may depend on the facts of the case. Analysis of hearsay is a fact intensive situation that will need to be assessed on a case-by-case basis. More frequently than not, a hearsay exception will apply to situations where the witness is unavailable at trial. The witness’ unavailability can be due to a privilege from testifying, a refusal to testify despite a court order to do so, a lack of memory on the subject matter of the declarant’s statement, an inability to testify due to death, a physical or mental illness or infirmity, or the witness’ absence from the hearing. The most common exception applicable to unavailable declarants using social media evidence is the exception concerning “statements against interest.” This exception only applies to a party to the suit. If the plaintiff makes a statement on social media that is contrary to his or her interests in the suit, it may be admissible as an admission against the person’s interest. In Lorraine v. Markel Am. Ins. Co., the court held that electronically made or stored evidence qualifies as admissions against interest. Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, (D. Md. 2007).

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Of course, social media statements are also admissible when they are offered for a non-hearsay purpose. If a statement is being offered to prove something other than the truth of the matter asserted, it is not hearsay. There are many reasons why a statement may be offered other than to prove the truth of the statement. Some examples are to show the declarant’s state of mind, for impeachment, to show the declarant had knowledge or information contrary to his or her present statements, to prove the declarant’s ability to understand and communicate information, or to prove effect on the hearer’s state of mind. IV. BEST EVIDENCE

Illinois Evidence Rule 1004 requires that a party seeking to utilize a writing, record or photograph at trial must ordinarily produce the original to establish its admissibility. Since social media is always changing and information can be added or deleted easily, information collected today may not be available tomorrow. In situations where the evidence has been deleted or altered, Rule 1004 permits secondary sources of evidence when the original has been lost or destroyed, when the original is no longer obtainable, when the original is in possession of the opponent, or when the evidence itself is merely a collateral matter. If a plaintiff deletes a relevant post, then a secondary source (a printout) of the page will become admissible since the original has been destroyed. In situations where a plaintiff changes privacy settings so that the post is not longer viewable to the general public, a printout will be admissible since the original is no longer obtainable. If social media evidence is destroyed after a preservation letter was issued to the plaintiff in a civil case, there may be spoliation issues that need to be addressed with the court. V. CONCLUSION

Social media evidence is an important litigation tool that must be used properly and responsibly. When using social media as part of claim management, it is essential that it be used ethically and responsibly. Represented parties should never be contacted directly over social media. It is permissible to view all information that is in the public domain, but it is never proper to send a “friend” request, a connection request, a message or to create a post. It is also improper to follow someone on Twitter or subscribe to their social media feeds. If this is done, it is considered to be per se contact. It is also improper to permit someone to contact or connect to a plaintiff using deception or a pretext. If a profile is private and you have a reasonable basis for believing there is discoverable information, attempt to obtain that information through traditional discovery methods. If you are able to gather useful information through informal discovery because the plaintiff has allowed you, as the general public, access, consideration must be given as to how to best use this evidence. If the evidence could potentially be used at trial, obtaining a printout of the page

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may be insufficient. In certain situations, it may be necessary for a third party, such as an investigator, who can later testify at trial, to this evidence. Strategic decisions need to be made between the claims personnel and the attorney handling the matter on how to proceed with the collection and preservation of the evidence. Attorneys will need to determine whether information can be secured during the discovery process to overcome issues regarding authenticity and relevance. Further, attorneys will need to develop strategies for overcoming evidentiary objections that will be raised in an attempt to keep it out. In situations where evidentiary issues cannot be overcome, the evidence may still have a useful impact on the claims handling process. Social media can provide a lot of personal information on a plaintiff or witness that would otherwise never be known. Social media may provide evidence about a plaintiff’s social interests and activities that could affect the claim. This evidence may result in the development of admissible surveillance. Alternatively, information obtained from a social media site can be used when deposing treating physicians to question their knowledge about a plaintiff’s actions. Inadmissible evidence can also be used during negotiations for more favorable settlements. Information from a social media search may assist claims handling personnel in obtaining more detailed information from a plaintiff during a recorded statement prior to the involvement of counsel. Thus, even though there are some issues affecting the admissibility of social media evidence, it is a useful litigation tool that should not be overlooked.

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Stacie L. Hansen

- Associate

Stacie started with Heyl Royster as a summer associate while in law school, and then joined the firm's Peoria office in 2006 after graduation. While in law school, she was active on the Drake Journal of Agricultural Law, serving as a note editor. In 2005, she received a CALI Excellence for the Future Award in Agricultural Law. Stacie dedicates a significant portion of her practice to the defense of employers in workers' compensation cases. She handles cases on the Peoria, Bloomington and Kewanee dockets. She has effectively argued numerous claims before the Illinois Workers' Compensation Commission. In the past, she has handled a variety civil matters ranging from representing defendants in auto accidents and premises liability claims to representing corporations in shareholder disputes. She has experience in all aspects of case preparation and has trial experience. Additionally, Stacie has successfully mediated several complex claims. Stacie has a special interest in the use of social media in litigation and in formulating and drafting social media policies. She frequently speaks to clients, claims representatives and attorneys on these issues. Additionally, she has co-authored a variety of articles on Workers' Compensation and Workers' Compensation Appeals. Stacie was previously named a Rising Star by Super Lawyers and has been recognized by the Peoria County Bar Association for her commitment to pro-bono services. Publications "Social Media for Public Employees," Heyl

Royster Governmental Newsletter (2010) "Supreme Court Addresses Propriety of TTD

Termination Where Employee is Fired for Violating Company Rules," Below the Red Line – Heyl Royster Workers' Compensation Newsletter (2010)

"Workers' Compensation Appellate Procedures," ABA Committee Newsletter (2007)

Public Speaking “Kids Say the Darndest Things”—Effective

Claims Investigation Using Social Media” Heyl Royster Workers’ Compensation Claims Handling Seminar (2012)

“Effective Use of Social Media as a Litigation Tool for the Defense” Heyl Royster Claims Handling Seminar (2012)

“Social Media: What Is It and Hot to Get It Admitted into Evidence” National Association of Railroad Trial Counsel (2012)

“Workers Compensation Legislation Update” Heyl Royster Spring Seminar for Commercial Litigation Clients (2012)

“Effective Use of Social Media in Informal Discovery” RIMS - Bloomington, Illinois (2011)

“Discovery of Social Networking Information” National Association of Railroad Trial Counsel, Special Litigation Conference XXI (2011)

Professional Recognition Outstanding Commitment to Pro Bono

Services, 2008 Named to the 2011 Illinois Super Lawyers

Rising Stars list. The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation.

Professional Associations Peoria County Bar Association (Young Lawyers

Committee; Chair, Membership Committee) Illinois State Bar Association


Illinois

Education Juris Doctor (Honors), Drake University Law

School, 2006 Bachelor of Science-Business, Miami University,

2003


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I WANT A DIVORCE! CAN I OBTAIN A RESIGNATION WHEN THE WORK COMP CASE IS SETTLED

Presented and Prepared by: Kevin J. Luther

[email protected] Rockford & Chicago, Illinois • 815.963.4454



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I. I WANT A DIVORCE! CAN I OBTAIN A RESIGNATION WHEN THE

WORK COMP CASE IS SETTLED? ............................................................................................................. I-4

A. Wrongful Discharge Liability ...................................................................................................... I-4 B. Employment-at-Will Doctrine ................................................................................................... I-4

II. RETALIATORY DISCHARGE ........................................................................................................................ I-4

A. Statutory Remedy .......................................................................................................................... I-4 B. Civil Remedy .................................................................................................................................... I-4 C. When Can an Employee Be Terminated? – An Employer Cannot

Fire an Employee for Filing a Claim for Workers’ Compensation ............................... I-5 D. When Can an Employee Be Terminated? – An Employer Cannot

Terminate an Employee Before a Workers’ Compensation Claim is Filed .................................................................................................................................... I-5

E. When Can an Employee Be Terminated? – An Employer Cannot Terminate an Employee Because a Claim for Workers’ Compensation was Filed Against a Prior Employer ......................................................................................... I-5

F. An Employer Can Terminate a Petitioner for Legitimate Other Reasons ................................................................................................................................. I-6

G. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Poor Job Performance ............................................................................... I-6

H. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Employee Misconduct ................................................................................ I-6

I. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Inability to Return to Work After Injury ............................................... I-6

J. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Failure to Return to Work After Being Medically Cleared ........................................................................................................................... I-7

K. Failure to Return to Work After Employer’s IME ................................................................ I-7 L. An Employer Can Terminate a Petitioner for Legitimate

Other Reasons – Fraudulent Claim .......................................................................................... I-8 M. The Stated Reason for Discharge Must Be Genuine ......................................................... I-8

III. RETALIATORY DEMOTION OR CONSTRUCTIVE DISCHARGE .....................................................I-10

A. No Cause of Action for Retaliatory Demotion ..................................................................I-10

IV. PROCEDURES FOR DISCHARGING A PETITIONER ..........................................................................I-10

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V. PROCEDURES FOR DISCHARGING A PETITIONER ..........................................................................I-12

A. Discharge Procedures .................................................................................................................I-12 B. Caution: Considerations Before Discharging .....................................................................I-12

VI. DEFAMATION ...............................................................................................................................................I-13 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

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I. I WANT A DIVORCE! CAN I OBTAIN A RESIGNATION WHEN THE WORK COMP CASE IS SETTLED?

A. Wrongful Discharge Liability

Whether the injured employee can be terminated is a frequently asked question in workers’ compensation cases. The employer often has a legitimate need to terminate the petitioner’s employment but fears the employee cannot be terminated due to the work-related injury. This section will review the law prohibiting discrimination against injured employees, review circumstances under which an injured employee cannot be fired, and review circumstances where an injured employee can be terminated. Additionally, state and federal issues are identified and discussed.

B. Employment-at-Will Doctrine

Illinois is still an employment-at-will state. This means that both the employer and the employee can terminate an employment relationship at any time for any reason or no reason at all. As a practical matter for the employer, this means that if the employer discharges a worker for misconduct and the worker is able to prove that he was not guilty of the misconduct, the employer is nevertheless not liable. The employer does not need a reason to fire the worker in the first place. The employment-at-will doctrine will be discussed in more detail elsewhere in this program. However, it is important to note that there are numerous exceptions to the employment-at-will doctrine, one of which is retaliatory discharge. II. RETALIATORY DISCHARGE

A. Statutory Remedy

Section 4(h) of the Illinois Workers’ Compensation Act provides in relevant part:

It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.

B. Civil Remedy

The “tort” of workers’ compensation of retaliatory discharge was judicially created by the Illinois Supreme Court in the 1978 case of Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (Dec. 4,

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1978, rehearing denied Jan. 25, 1979). In Kelsay, the Illinois Supreme Court acknowledged that Illinois employees may serve at will and that no cause of action had previously existed to prevent their discharge. The court concluded that the cause of action should exist to permit employees to avail themselves of their statutory rights to recover under the Illinois Workers’ Compensation Act and to remedy such discharges. It was felt that the act would be a right without a remedy if employees face discharge for filing workers’ compensation benefits. Thus, under Kelsay, a discharged employee can sue their employer in a civil action. A discharged employee cannot sue a supervisor or other agent of the employer who discharged the employee. The proper defendant in a retaliatory discharge action is the former employer. Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 694 N.E.2d 565 (1998).

C. When Can an Employee Be Terminated? – An Employer Cannot Fire an Employee for Filing a Claim for Workers’ Compensation

The Illinois Supreme Court has held that the Workers’ Compensation Act establishes a public policy of the state to provide for a uniform compensation system for injured employees and that the public policy further provides that employees should not have to risk their jobs to take advantage of that system. Therefore, an employee has a right to sue if he or she is discharged because he or she filed a workers’ compensation claim, notwithstanding the state’s general policy towards at-will employment. See Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981). In a successful lawsuit, the terminated employee can recover back wages, front pay (subject to mitigation), emotional distress, and punitive damages. There is no authority for requiring reinstatement, however. The statute of limitations for the filing of a workers’ compensation retaliatory discharge is five years from the date of the alleged firing. Claims for workers’ compensation retaliatory discharge brought by municipal employees are not subject to the one-year statute of limitations provided by the local governmental employees Tort Immunity Act. Collins v. Town of Normal, 2011 IL App (4th) 100694, 951 N.E.2d 1285.

D. When Can an Employee Be Terminated? – An Employer Cannot Terminate an Employee Before a Workers’ Compensation Claim is Filed

It is not necessary that the employee actually have filed the claim at the time of his discharge. If an injured employee indicates that he plans to file a claim for compensation, he is protected from retaliation.

E. When Can an Employee Be Terminated? – An Employer Cannot Terminate an Employee Because a Claim for Workers’ Compensation was Filed Against a Prior Employer

If an employer learns that an employee has filed a workers’ compensation claim with a prior employer, this cannot be the basis for discharging the employee, nor should it be the basis for refusal to hire. See Darnell v. Impact Industries, Inc., 105 Ill. 2d 158, 473 N.E.2d 935 (1984).

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Similarly, a seasonal employer cannot refuse to rehire an employee because he or she filed a workers’ compensation claim in the prior season.

F. An Employer Can Terminate a Petitioner for Legitimate Other Reasons

Just because an employee has filed a claim for workers’ compensation does not mean the employee is protected for life. Retaliatory discharge simply protects an employee from being fired because he or she filed a claim. It does not protect an injured employee from being treated just like any other employee and, in fact, they should be. Therefore, it is permissible to discharge an employee for the reasons discussed below.

G. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Poor Job Performance

Well-documented poor job performance can be the basis for discharge even if the employee has filed for workers’ compensation. See Herman v. Power Maintenance & Constructors, LLC, 388 Ill. App. 3d 352, 903 N.E.2d 852 (4th Dist. 2009). However, it should be of sufficient level that any other employee would also be discharged. Moreover, if an employer has a progressive disciplinary system for that type of performance deficiency, no disciplinary steps should be skipped before discharge.

H. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Employee Misconduct

Violations of work rules that would ordinarily result in discharge can also result in the discharge of the petitioner. Some of these grounds that have been successfully used are:

● Failure to follow established procedure ● Employee dishonesty (e.g., falsification of employment application, theft) ● Fighting ● Failure to report a work-related injury according to established policy I. An Employer Can Terminate a Petitioner for Legitimate Other Reasons –

Inability to Return to Work After Injury

An employee who will never be able to return to his or her old job may be discharged. There is no requirement that an employee be given permanent light duty. Also, an employee who may not return to work for the foreseeable future can be discharged even if they may ultimately recover and be fit for work. For example, one court held that a 22-month work-related absence was sufficient to justify discharge without resulting in retaliatory discharge liability. Slover v. Brown, 140 Ill. App. 3d 618, 488 N.E.2d 1103 (5th Dist. 1986). However, both the ADA and FMLA

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give the disabled employee special rights which must be considered when discharge is contemplated.

J. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Failure to Return to Work After Being Medically Cleared

If an employee has been released to work and fails to report at the designated time, he or she may be discharged. Hess v. Clarcor, Inc., 237 Ill. App. 3d 434, 603 N.E.2d 1262 (2d Dist. 1992) (the court held that the discharge of employees due to excessive absenteeism was not retaliatory even though the employees’ failure to return to work was a result of compensable injuries). Often, employers have a rule that suggests that a certain number of unexplained absences will be deemed a resignation. If your company has this, you should wait the required number of days. Further, if the employee is in contact and simply refused to return to work because he or she disagrees with his or her doctor’s release, the employee can usually be dismissed. However, when clearing an employee to return to work, an employer may not rely solely on an IME when the employer is faced with conflicting medical opinions between the employer’s IME and the employee’s doctor. Grabs v. Safeway, Inc., 395 Ill. App. 3d 286, 917 N.E.2d 122 (1st Dist. 2009).

K. Failure to Return to Work After Employer’s IME

Two plaintiffs filed a complaint against their former employer alleging that they had been discharged in retaliation for filing a workers’ compensation claim. In both cases, the employer obtained a medical opinion pursuant to section 12 that both plaintiffs could return to work without restrictions. Both plaintiffs failed to report to work or call in their absences three days in a row following the IMEs. Grabs v. Safeway, Inc., 395 Ill. App. 3d 286, 917 N.E.2d 122 (1st Dist. 2009). Both plaintiffs sustained work-related injuries and were examined by physicians chosen by the employer, who opined that they could return to work without restrictions. The employer had a “no–fault” attendance policy, which provided that an employee could be terminated for job abandonment if he or she failed to come in to work or call in as absent for three days in a row. Subsequent to the receipt of the reports of its section 12 examining doctors, the employer changed the plaintiffs’ attendance coding from work-related injury, which did not require them to call in their absences, to require that the plaintiffs either return to work or call in their absences. At the time of their terminations, both employees had 19(b) petitions pending, which alleged that they were unable to return to work. In both instances, the arbitrator ruled in their favor, finding that they could not return to work. The appellate court stated that the employer may not rely solely on an IME in terminating an employee for failing to report to work. An employer who acts solely on an IME doctor’s opinion to discharge an injured employee will subject itself to a retaliatory discharge lawsuit. Grabs v. Safeway, Inc. 395 Ill. App. 3d 286, 917 N.E.2d 122 (1st Dist. 2009).

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L. An Employer Can Terminate a Petitioner for Legitimate Other Reasons – Fraudulent Claim

An employee who files a fraudulent claim can be discharged. See Gonzalez v. Prestress Engineering Corp., 194 Ill. App. 3d 819, 551 N.E.2d 793 (4th Dist. 1990). In such a case, the discharge is related to employee dishonesty, as opposed to his exercising his rights under the Workers’ Compensation Act. It is important to distinguish a fraudulent claim from one in which the employee is merely unsuccessful. Therefore, these cases should be handled carefully.

M. The Stated Reason for Discharge Must Be Genuine

If an employer has set procedures for discipline, those procedures should be followed. If the reason for discharging the employee usually only results in a suspension, he or she should only be suspended. When a petitioner is fired and brings a retaliatory discharge lawsuit, the employee bears the initial burden of proving that he or she was discharged for a reason against public policy. Then the burden shifts to the employer. Clemons v. Mechanical Devices Co., 184 Ill. 2d 328, 704 N.E.2d 403 (1998). Presumably, there will not be any smoking guns in the employer’s file (e.g., memo to supervisor: find a reason to fire this employee). Therefore, the petitioner will have to prove his or her case by showing that he or she was treated differently from other employees and that the only thing that distinguishes him or her from the other employees is the fact that he or she filed a workers’ compensation action. If the first enforcement of a particular disciplinary rule is against a workers’ compensation petitioner, the court will likely presume the petitioner would have been excused from compliance but for the filing of the workers’ compensation claim. If an employee has year after year of glowing evaluations, it will be difficult to persuade the court that the employee suddenly turned bad after the employee filed the claim. If an employer has set procedures for discipline, those procedures should be followed. If the reason for discharging the employee usually only results in a suspension, he or she should only be suspended. Ultimately, if an employer bases the discharge decision on the exact grounds which would apply to any other employee and treats the petitioner no better or no worse than another employee, the employer will likely be safe from retaliatory discharge liability. It is the decision-making process which should be consistent with that of other employees. Although workers’ compensation is the most well-known area giving rise to retaliatory discharge claims, Illinois recognizes the cause of action to protect employees who are exercising certain other clearly mandated public policy rights. In order to state a cause of action based on other public policy grounds, the employee must be able to show that he or she was discharged for

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exercising certain rights and that those rights have been recognized in Illinois as a clearly mandated public policy. Some examples are discussed below. Courts have found that an employee may not be discharged because he or she reported illegal activity of co-workers or supervisors to the authorities or to the company itself. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981) (where the employee was fired for reporting information that a co-worker might be violating the Criminal Code, there was held to be a valid cause of action of retaliatory discharge). Employees have been found to be protected for reporting occupational hazards, such as asbestos, or for refusing to handle radioactive material in a hazardous manner. Sherman v. Kraft General Foods, Inc., 272 Ill. App. 3d 833, 651 N.E.2d 708 (4th Dist. 1995). See also Leweling v. Schnadig Corp., 276 Ill. App. 3d 890, 657 N.E.2d 1107 (1st Dist. 1995) (where the court held that economic legislation does not advance health or safety and, therefore, employees’ claims of reporting company’s noncompliance did not rise to the level of retaliatory discharge). An employee cannot be fired for refusing to engage in an illegal accounting activity or other illegal activities. Russ v. Pension Consultants Co., Inc., 182 Ill. App. 3d 769, 538 N.E.2d 693 (1st Dist. 1989). This protection, however, does not extend to in-house lawyers. The Illinois Supreme Court has held that an in-house lawyer can be fired even for refusing to engage in illegal activity, such as destruction of evidence or other unethical behavior. Balla v. Gambro, Inc., 145 Ill. 2d 492, 584 N.E.2d 104 (1991). When given a choice between losing one’s job and losing one’s license to practice law, in-house counsel must be willing to sacrifice their job. While access to workers’ compensation benefits is a protected public policy, the ability to file a separate civil action against the employer is not. Therefore, if the employee sues (or threatens to sue) the employer for personal injuries not covered by workers’ compensation or for some other actions, such as defamation or the like, the employee may not be protected from discharge. Filing a claim for a work-related injury is protected from retaliatory discharge, but filing a health claim for a non-work-related injury is not, at least according to one court. Price v. Carmack Datsun, Inc., 109 Ill. 2d 65, 485 N.E.2d 359 (1985) (where filing a claim for health insurance under employer’s group policy was not retaliatory discharge, as it did not violate a clearly mandated public policy). In addition to public policy issues, certain other activities are specifically protected from discharge by statute. Some of these are:

● Filing a discrimination lawsuit (state or federal) ● Consuming legal substances outside of the workplace (e.g., alcohol or

tobacco)

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● Receiving one wage garnishment

III. RETALIATORY DEMOTION OR CONSTRUCTIVE DISCHARGE

A. No Cause of Action for Retaliatory Demotion

Illinois does not recognize a cause of action for retaliatory demotion. The Illinois Supreme Court has held in the context of a workers’ compensation claim that an employee who quits after he or she was demoted cannot sue for retaliatory discharge or demotion. The court reasoned that it was simply too difficult to determine what constitutes a demotion and would, therefore, result in too much litigation. Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877 (1994). Constructive discharge occurs when the employee is not actually fired, but the employer makes the conditions of continued employment so onerous that any reasonable person would feel compelled to quit. Most courts that have addressed this issue have found that a constructively discharged employee cannot sue for retaliatory discharge. The Illinois Supreme Court has not ruled on this issue. However, it would seem that the reasoning that the supreme court applied to disallow retaliatory demotion cases would apply similarly here. Grey v. First Nat’l Bank of Chicago, 169 Ill. App. 3d 936, 523 N.E.2d 1138 (1st Dist. 1988); Scheller v. Health Care Service Corp., 138 Ill. App. 3d 219, 485 N.E.2d 26 (4th Dist. 1985) (overruled by Hinthorn v. Roland’s of Bloomington, Inc., 151 Ill. App. 3d 1006, 503 N.E.2d 1128 (4th Dist. 1987)). Employers should note that they cannot avoid a retaliatory discharge action by giving the employee the choice of resigning or being fired. Courts treat such a choice as a firing for retaliatory discharge purposes. IV. PROCEDURES FOR DISCHARGING A PETITIONER

Although injured employees who are being considered for discharge for disciplinary purposes should be treated the same as other employees, the fact that there is the potential for the retaliatory discharge action warrants careful compliance with procedures to ensure that the discharge is warranted and that the reasons therefore are carefully documented. In order to better defend against retaliatory discharge claims, the procedure for disciplining and discharging employees should focus on three separate areas or phases. These areas or phases are the normal policy implementation, incident investigation, and response and discharge procedures. In order to ensure consistency in dealing with petitioners and other potential retaliatory discharge claimants, the employer should follow a pattern and practice of consistent policies throughout. These will include:

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1. Uniform evaluations: Although it is typical for many different supervisors

to give evaluations, the employer should have a consistent policy regarding them. Some supervisors tend to be more lenient and use evaluations as a means to encourage improvement rather than document deficiencies.

2. Uniform enforcement of work rules: If the employer has a set policy

regarding discipline, it should be followed. If that involves progressive discipline, those steps should be consistently taken.

3. Document minor infractions: Typically, first offenses for minor infractions

do not involve discharge. However, they should be documented so as to form a basis for discharge if they are repeated.

Incident investigation should, at a minimum, provide for the following steps:

1. An employee’s supervisor should promptly report a disciplinary infraction to the human resources department.

2. A supervisor should document the relative events and grounds for which

discharge is sought. 3. If there are witnesses, they should be interviewed and sign statements. 4. Determine applicable policies (e.g., employee handbook, collective

bargaining agreement, etc.). 5. Evaluate past infractions of the employee in question. 6. Evaluate how past infractions of the rule in question have been handled

for other employees. 7. Consult with your attorney. Usually, this is your workers’ compensation

attorney, but you should make sure he or she is knowledgeable in employment law issues.

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V. PROCEDURES FOR DISCHARGING A PETITIONER

A. Discharge Procedures

1. A discharge interview should be conducted with two management people present. Usually, this is the employee’s supervisor and a human resources officer.

2. A discharge memo should be presented to the employee containing the

grounds for discharge and a statement of the discharge. 3. Both company representatives should prepare a report of the interview,

especially their recollection of statements and admissions made by the employee.

B. Caution: Considerations Before Discharging

Even though there may be legitimate grounds for termination, it may be more detrimental to the employer to terminate the employee than to continue the employment relationship. A termination from employment has a significant impact on the value of most workers’ compensation claims. The workers’ compensation claim value may increase due to the following factors:

1. The period of temporary total disability is extended: A terminated injured employee has no incentive to get back to work. The discharged employee must continue in a disability mode to continue to receive income. Thus, discharged employees frequently attempt to remain in a disability mode long after they have actually recovered from their injuries. Doctors often endorse the claimed disability, and TTD costs rise significantly.

2. Termination increases the vocational disability: The Workers’

Compensation Commission arbitrator considers the impact of the work injury on the employee’s ability to earn a living. If the job injury compromises the employee’s employability, termination will drive the value of the workers’ compensation claim up dramatically. Further, even if the injury does not restrict the employee’s employability, the mere fact that the employee is without employment at the time of arbitration can serve to increase the permanency value of the claim.

3. Workers’ compensation loss experience will be increased, thereby

increasing insurance premium base.

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If TTD and permanency values of the workers’ compensation claim are increased, the employer’s loss experience is impacted so that greater workers’ compensation insurance premiums will be assessed.

4. Credibility with the arbitrator can be compromised.

While Workers’ Compensation Commission arbitrators are not critical of legitimate terminations, the employer must consider the impact the termination will have on future claims. The same arbitrator is likely to hear the employer’s future workers’ compensation claims. If there is a history of that employer having terminated many of its employees, credibility with the arbitrator will be lost. Credibility with the arbitrator is critical to a successful defense of workers’ compensation claims. If the arbitrator feels that the employer has a history of employee terminations which are of questionable validity, the arbitrator is likely to harshly judge that employer in all arbitration awards.

VI. DEFAMATION

Defamation is another tort theory which may be raised in the employment setting. Defamation claims most frequently arise in the context of job references, evaluations, and termination notices. A statement is defamatory if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him. Four categories of statements are considered so obviously harmful to a person’s good name or reputation that they are considered defamatory as a matter of law.

1. Words that impute the commission of a criminal offense; 2. Words that impute infection with a loathsome communicable disease; 3. Words that impute an inability to perform or want of integrity in the

discharge of duties of office or employment; or 4. Words that prejudice a party or impute a lack of ability in his trade,

profession, or business.

Costello v. Capital Cities Communications, Inc., 125 Ill. 2d 402, 414, 532 N.E.2d 790 (1988). Defamation claims are difficult to establish in the employment context because courts recognize a conditional privilege for statements which are motivated by legitimate business and social interests. In deciding whether a statement is privileged, the court looks only at the occasion of the statement to determine whether, as a matter of general policy, the occasion created a recognized duty or interest that makes the communication privileged.

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Under Illinois law, three classes of conditionally privileged occasions are recognized:

1. Situations in which some interest of the person who publishes the defamatory matter is involved;

2. Situations in which some interest of the person to whom the matter is

published or of some other third person is involved; and 3. Situations in which a recognized interest of the public is concerned.

Kuwik v. Starmark Star Marketing and Admin., Inc., 156 Ill. 2d 16, 619 N.E.2d 129 (1993). Once a qualified privilege has been established, a communication is only actionable if the employee can show that the defendant abused the privilege. An abuse of a qualified privilege may consist of any reckless act which shows a disregard for the defamed party’s rights, including the failure to promptly investigate the truth of the matter, limit the scope of the communication, or communicate the information to only the proper parties. Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 658 N.E.2d 1225 (1st Dist. 1995). Although the Illinois legislature has created a conditional privilege for employers who give accurate job references, a recent decision by the United States Court of Appeals for the Ninth Circuit, interpreting Alaska law, suggests that an employer may be able to insulate itself completely from liability for defamation arising in the context of a job reference by securing a carefully drafted release. In Cox v. Nasche, 70 F. 3d 1030 (9th Cir. 1995), the plaintiff sought employment as an aviation safety inspector with the Federal Aviation Administration (“FAA”). As part of the FAA’s application process, the plaintiff was required to sign a release form authorizing the FAA to contact former employers and to inquire about his prior employment. The release provided, in relevant part, as follows:

AUTHORITY FOR RELEASE OF INFORMATION. I authorize any duly accredited representative of the Federal Government . . . to obtain any information relating to my activities from . . . employers . . . This information may include, but is not limited to, . . . achievement, performance, attendance, personal history, [and] disciplinary . . . information. * * * I Direct You to Release such information upon request of the duly accredited representative of any authorized agency regardless of any agreement I may have made with you previously to the contrary. * * * I Release any individual, including records custodians, from all liability for damages that may result to me on account of compliance or any attempts to comply with this authorization.

Cox, 70 F. 3d at 1030-1031.

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As a result of its prehire investigation of the plaintiff which involved interviews with representatives of his former employer, the FAA declined to hire the plaintiff. The plaintiff filed an action for defamation and other related torts against his former employer and supervisor. The defendants moved for summary judgment claiming that the release signed by the former employee created an absolute privilege against the defamation action. Unlike a qualified privilege, an absolute privilege bars a defamation action even for maliciously made statements. In granting summary judgment to the defendants, the court relied extensively on the Restatement, Second, Torts § 583, which provides that:

The privilege conferred by the consent of the person about whom the defamatory matter is published is absolute. The protection given by it is complete, and it is not affected by the ill will or personal hostility of the publisher or by any improper purpose for which he may make the publication.

Restatement, Second, Torts § 583, comment f. The court found that the defendants were privileged because the publication was within the scope of the consent contained in the release.

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Kevin J. Luther

- Partner

Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has practiced in the Rockford office since it opened in 1985. He supervises the workers' compensation, employment law, and employer liability practice groups in the firm's Rockford and Chicago offices. He is the immediate past chair of the firm's statewide workers' compensation practice group.

Kevin concentrates his practice in the areas of workers' compensation, employment law, and employer liability.

He has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims. He has also tried numerous liability cases to jury verdict.

Kevin has co-authored a book with Bruce Bonds of the firm's Urbana office entitled Illinois Workers' Compensation Law, 2009-2010 Edition, which was published by West. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. The 2012-2013 Edition of this treatise was published in October of 2012, and is scheduled to be updated annually.

He has also authored a law review article on Illinois employment law. Kevin is a frequent speaker to industry and legal professional groups.

Kevin is a member of the Winnebago County Bar Association in its workers' compensation and trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel, formerly on the Board of Directors. Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp. -

Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim.

Richard Urbanski v. Deichmueller Construction Co. - Defined jurisdictional issue in workers' compensation review.

Publications Co-author, "Survey of Illinois Law: Employment

Law," Southern Illinois University Law Journal (2010)

Co-author, Illinois Workers’ Compensation Law, 2009-2010 ed. (Vol. 27, Illinois Practice Series), published by West (2009); Co-Author, Illinois Workers' Compensation Law, 2012-2013 ed. (Vol. 27, Illinois Practice Series), published by West (2012)

Public Speaking “Ethics of Social Media”

Illinois Workers’ Compensation Commission Judicial Training, Chicago (2012)

“A Program on the Extent to Which Employers May Monitor/Restrict Employees” St. Mary’s Occupational Health & Wellness (2012)

Professional Recognition Martindale-Hubbell AV rated Selected as a Leading Lawyer in Illinois. Only five

percent of lawyers in the state are named as Leading Lawyers.

Named to the 2013 Illinois Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel

Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and Central

Districts of Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor, Washington University School of

Law, 1984 Bachelor of Arts-Economics and Mathematics

(Summa Cum Laude), Blackburn University, 1981


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WHAT NOW?: CASE LAW UPDATE

Presented and Prepared by: Daniel R. Simmons

[email protected] Springfield, Illinois • 217.522.8822



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WHAT NOW?: CASE LAW UPDATE I. PROCEDURAL LAW ....................................................................................................................................... J-4

A. Recouping Overpayment of Benefits An employer cannot enforce a credit for overpayment in a section 19(g) proceeding. ............................... J-4

B. Combating Fraud The anti-fraud provisions of section 25.5

are constitutional; application of section 25.5. ................................................................... J-4

C. Filing Judicial Reviews The mailbox rule does not apply to judicial review filings under section 19(f). ............................................................................. J-6

D. Penalties and Attorneys’ Fees Penalties and attorneys’ fees

are not recoverable for a failure to authorize medical care. .......................................... J-7

E. Insurance Coverage Proceedings before the commission should be stayed pending resolution of insurance coverage issues in a civil case. ...................................................................................................................... J-8

F. Final and Appealable Orders A decision by the circuit court

to remand for entry of dismissal may be considered a final and appealable order, thereby conferring appellate jurisdiction on the appellate court. .................................................................................................................... J-10

G. Non-Final Language A remand by the commission for further

determinations on vocational rehabilitation issues is non-final despite language in the commission’s decision stating that the order is subject to remand only after the time for appeal has expired. ................. J-11

H. Collateral Estoppel A decision by the U.S. Department of Labor

denying a petitioner benefits under the Black Lung Benefits Act for coal miner’s pneumoconiosis does not bar the petitioner from relitigating in an occupational disease proceeding whether he had CWP and whether it was related to his employment. ................................................... J-12

I. Waiver of Compliance with Rules A party may stipulate to waive

the timely filing of the transcript on review and if so stipulated, that party cannot rely on a later filing of the transcript to defeat jurisdiction on review................................................................................................................. J-14

J. Section 19(g) Statute of Limitations ................................................................................... J-16

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K. Treater v. IME ................................................................................................................................ J-16 II. SUBSTANTIVE LAW .................................................................................................................................... J-16

A. Medical Benefits A petitioner may recover medical benefits for prospective surgery to cure a disfigurement even where the alleged disfigurement may not be compensable as such under section 8(c)..................................................................................................................................... J-16

B. Compelling FCE An employer nor the commission can compel a

petitioner to undergo a Functional Capacity Evaluation (FCE) event where requested by or beneficial to a section 12 Independent Medical Examiner physician. ................................................................................................... J-18

C. Permanency Permanency benefits for injuries to shoulders are

governed not by a percentage of an arm but as a person as a whole. .................. J-19

D. PTD Benefits Properly Denied for Failure to Establish Job Search ........................... J-19

E. Manifest Weight of the Evidence .......................................................................................... J-20

F. Loaned/Borrowed Employees ................................................................................................ J-22

G. Exclusive Remedy Provision .................................................................................................... J-24

H. Statutory Interpretation of Section 5 (a) Regarding Immunity .................................. J-25

I. Traveling Employees A temporary worker who is injured while traveling from his temporary employment to his hotel room is considered a traveling employee under the act and it’s reasonable for the employer to assume that the employee will rent a hotel room rather than commute the 200 miles between the employee’s residence and his temporary work assignment. .............................. J-26

J. Independent Contractors ......................................................................................................... J-28

K. Accident .......................................................................................................................................... J-29

L. Causal Connection ...................................................................................................................... J-31


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WHAT NOW?: CASE LAW UPDATE The following summaries represent the published decisions of the appellate court, Workers’ Compensation Commission Division, over the course of 2012. The decisions this year focused heavily on the procedural points. I. PROCEDURAL LAW

A. Recouping Overpayment of Benefits An employer cannot enforce a credit for overpayment in a section 19(g) proceeding.

In Patel v. Home Depot USA, Inc., 2012 IL App (1st) 103217, the Appellate Court, First District considered a case where a petitioner sought to enforce an arbitrator’s award, but the respondent held a credit that was larger than the award. In this case, the respondent had a credit of $27,357.47 for overpayment of temporary total disability benefits. At arbitration, the petitioner was awarded a sum of $22,798.54. The petitioner sought to enforce that award by way of a 19(g) petition to the circuit court. The respondent refused to pay the award, noting that it held a credit in excess of the amount requested by the petitioner. The circuit court refused to allow the respondent to rely on the credit in place of the award, ordering the respondent to pay the full amount ordered by the commission. In addition, the circuit court awarded the petitioner attorneys’ fees of $47,000, costs of $5,215.31 and interest of $13,679.08. The respondent brought the case to the appellate court, again arguing that its credit should negate any duty to pay the petitioner. The appellate court affirmed the circuit court’s decision, holding that section 19(g) applies only to compensation and does not recognize a credit as compensation. According to the court, a respondent must pay the full amount of the award, and then seek to recover the credit for overpayment in a separate civil action against the petitioner. In this case, the appellate court refused to honor the respondent’s credit and awarded the petitioner attorneys’ fees, costs and interest. In doing so, the appellate court further complicated the procedure for the respondent to enforce its credit for overpayment of temporary total disability benefits.

B. Combating Fraud The anti-fraud provisions of section 25.5 are constitutional; application of section 25.5.

People v. Oshana, 2012 IL App (2d) 101144, is the first reported case construing the new fraud provision, section 25.5. There, the petitioner alleged that he injured his right arm, shoulder, neck, and back in a work injury that occurred on October 12, 2006. He was provided with off-work slips from his treating physician. He advised his physician that he had severe disability. The

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petitioner told his physician that he was required to use crutches, a walker, and spent most of his time in bed. He also claimed he had to “crawl to the bathroom.” The insurance carrier performed surveillance on multiple occasions and caught the petitioner working at construction sites, using both arms to perform tasks. The insurance carrier then took a recorded statement from the petitioner after most of the surveillance had been performed. In the recorded statement, petitioner denied he was working. The insurance carrier submitted documentation to the Workers’ Compensation Fraud Unit who then submitted this documentation to the Kane County State’s Attorney. The petitioner was indicted on two counts of worker’s compensation fraud pursuant to sections 25.5(a)(1) and (a)(2). Those provisions read as follows:

It is unlawful for any person, company, corporation, insurance carrier, health care provider, or other entity to: 1. Intentionally present or cause to be presented any false or fraudulent

claim for the payment of any worker’s compensation benefit. 2. Intentionally make or cause to be made any false or fraudulent material

statement or material representation for the purpose of obtaining or denying any worker’s compensation benefit.

820 ILCS 305/25.5(a)(1), (a)(2). The petitioner was found guilty on both counts and was sentenced to 24 months of probation and ordered to pay restitution to the insurance carrier of $22,594.61 in addition to fines and fees to the state. On appeal, the appellate court reversed the trial court regarding its finding that the petitioner presented a false or fraudulent workers’ compensation claim under section 25.5(a)(1). As it noted, the petitioner’s original accident was an accepted injury that did take place. The appellate court also found that the petitioner was not required to report that he was working light duty. The act makes criminal only affirmative fraud – a false or fraudulent claim or statement – not mere silence. However, the appellate court affirmed the conviction with respect to count II under section 25.5(a)(2). They noted the petitioner made several false or fraudulent statements for the purpose of obtaining workers’ compensation benefits. The recorded statement to the insurance carrier was not the basis of their decision because it was ambiguous; when the petitioner said he was not working, he could have been referring to the fact that he was not working for any other employer at the time of the accident. However, the court based its decision on the fact that the petitioner fraudulently misrepresented to his doctor and the IME doctor the extent of his disability and level of pain. The appellate court held the petitioner’s statements that he was limited to crutches, the use of a walker and was in bed most of the time were intentionally made for the purpose of obtaining workers’ compensation benefits.

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In addition, the appellate court found that the Workers’ Compensation Fraud Act was not unconstitutional but rather clear and unambiguous. The court also rejected the petitioner’s contention that section 25.5 could not be constitutional where there was no harm caused by the infraction. According to the court, “The conduct of making fraudulent claims or statements in order to obtain workers’ compensation benefits poses a similarly broad risk to the public by undermining the fairness and integrity of the workers’ compensations system, which was designed to provide prompt and equitable compensation for employment-related injuries.” Oshana, 2012 IL App (2d) 101144, at ¶ 39. With respect to the restitution order, the court found that the term “complete restitution” to the victims of the fraud means just that – full payment for all of the victim’s expenses that are reasonable. But restitution may not be ordered for costs that were not related to the acts for which the petitioner was convicted. The appellate court ordered the petitioner to pay the costs of the respondent’s IME and the insurance carrier’s attorney’s fees for the criminal trial, but it vacated the award of restitution for the respondent’s surveillance costs because there was no proof the surveillance was performed as a result of the petitioner’s fraudulent statements. They reduced the restitution order to $12,923.56 and affirmed the trial court’s order of 24 months of probation as well as fines and fees to the State. The Oshana case demonstrates the importance of obtaining clear and specific recorded statements as well as the importance of the use of video surveillance in claims where fraud is suspected. If the recorded statement had been clear and if the questions to the petitioner were specifically referring to whether he had worked for any employer after the accident, the petitioner’s conviction under section 25.5(a)(1) likely would have been affirmed by the appellate court.

C. Filing Judicial Reviews The mailbox rule does not apply to judicial review filings under section 19(f).

In Gruszeczka v. Illinois Workers’ Compensation Comm’n, 2012 IL App (2d) 101049WC, the Appellate Court, Second District, Workers’ Compensation Commission Division considered a case where the petitioner failed to comply with the time limits for filing a petition for judicial review. In that case, the arbitrator denied the petitioner’s claim for benefits, and the commission upheld the arbitrator’s decision. The record reveals that the commission’s decision was issued on April 20, 2009. On May 4, 2009, the petitioner mailed his petition for judicial review to the circuit court in DeKalb County. On May 14, 2009, the petition for judicial review was filed-stamped by the circuit clerk, more than 20 days after the commission’s decision was issued. Based on those dates, the respondent filed a motion to dismiss the petition for judicial review arguing that the petition was not timely filed. The motion to dismiss was based on section 19(f)(1) of the act, which states that judicial review of a commission decision “shall be commenced within 20 days of receipt of the notice of decision.” The motion to dismiss was ultimately denied by the circuit court, but the court also affirmed the commission’s denial of benefits. Both the petitioner and respondent appealed that decision to the Second District

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Appellate Court. The petitioner argued that the denial of benefits was improper, and the respondent argued that the motion to dismiss was improperly denied. The appellate court reversed the circuit court, and found that the circuit court lacked subject-matter jurisdiction to hear the judicial review. The appellate court relied on a strict statutory interpretation of section 19(f)(1), and found that the petitioner failed to comply with the 20-day window to file the petition for judicial review. The appellate court specifically noted that the act does not include a “mailbox rule” and explained that the act required the petition to be file-stamped within 20 days, not just mailed. In this case, the appellate court seems to have reached its limit with regard to flexibility in the act’s appellate procedures. Where “typographical errors” and “substantial compliance” were allowed, the failure to comply within the time period to file an appeal was strictly construed. In United States Cold Storage, Inc. v. Illinois Workers’ Compensation Comm’n, 2013 IL App (3d) 110868WC, the court held that the employer failed to satisfy the Workers’ Compensation Act’s bond requirements. The employer neglected to identify a surety for the bond that could be accepted by the circuit court clerk and, as a result, the circuit court lacked jurisdiction over the employers appeal. The court noted that the records showed that the initial bond document was not file-stamped by the clerk. Neither the initial bond and document nor a later, untimely bond document identified as a surety for the bond. The clerk could not have accepted a surety when one was provided. As a result, the employer failed to satisfy the bond requirements set forth in section 19(f)(2) of the act and the circuit court lacked jurisdiction over the employer’s appeal.

D. Penalties and Attorneys’ Fees Penalties and attorneys’ fees are not recoverable for a failure to authorize medical care.

In Hollywood Casino-Aurora, Inc. v. Illinois Workers’ Compensation Comm’n, 2012 IL App (2d) 110426WC, the Appellate Court, Second District, Workers’ Compensation Commission Division considered whether a petitioner can be awarded 19(k) penalties for the respondent’s refusal to authorize medical treatment that has not yet taken place. In that case, the petitioner needed a battery replacement for her spinal cord stimulator. The treating physician sent correspondence to the claims adjuster seeking authorization for the battery replacement procedure, but did not receive a final response for a number of months. Approximately eight months after the initial request, the petitioner filed a petition for penalties and fees for failure to authorize the battery replacement procedure. The battery replacement procedure was authorized shortly after the petition for penalties and fees was filed, but the petitioner continued to seek penalties and fees. The commission awarded the petitioner $40,750 in penalties under section 19(k) of the act, but denied attorneys’ fees under section 16. The respondent sought judicial review of the commission’s decision, and the circuit court reversed the commission’s decision.

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The circuit court concluded there was no legal basis for awarding penalties and fees where there was a delay in authorizing treatment. The petitioner appealed the circuit court’s decision to the appellate court. The appellate court affirmed the ruling of the circuit court, relying on the statutory language of section 19(k) of the act. Specifically, the appellate court explained that 19(k) dealt with delay of payment or underpayment of benefits. Because the medical treatment requested was never actually completed, payment was never due. The appellate court held there was no provision in the act authorizing the commission to assess penalties against an employer for a delay in authorizing reasonable and necessary medical treatment. Justices Stewart and Holdridge each dissented, arguing that majority had read section 19(k) too narrowly. Justice Stewart noted, “[d]elaying authorization for medical services is simply one means of delaying payment.” Hollywood Casino-Aurora, Inc., 2012 IL App (2d) 110426WC, at ¶ 27. He added, “The majority’s narrow interpretation allows an employer to completely refuse to provide medical services required by an injured worker and suffer no penalty.” Id. at ¶ 26. Justice Holdridge, while agreeing with Justice Stewart’s dissent, further added the record established a refusal to pay even under the majority’s analysis because the adjuster had possession of all information necessary to determine if the surgery was needed for almost six months before asking for further information, and then only authorized the surgery once a petition for penalties had been filed. In this case, the appellate court held that the act did not allow for penalties to be assessed against a respondent for failure to authorize reasonable and necessary medical treatment. In Morton’s Steakhouse v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 121219WCU, the appellate court affirmed the commission’s finding that the petitioner sustained an accidental injury arising out of and in the course of his employment with the respondent. The court also affirmed an award of penalties and attorneys fees. Penalties and attorneys fees were awarded because of the respondent’s failure to pay TTD benefits. The court noted that the employer’s examining physician had issued four reports before the period of disputed TTD in which he offered an opinion that a causal connection existed between the petitioner’s condition of ill-being and his employment. The petitioner’s treating physician had also found a causal connection and had also recommended surgery. The employer offered the petitioner full duty employment and terminated TTD benefits. The respondent offered light duty work and reinstated TTD just before arbitration on a petition for immediate hearing, however, it never paid what it promised. The respondent also did not pay TTD benefits after the petitioner’s surgery. The respondent offered no opinion testimony establishing that the petitioner could return to work during the post operative period.

E. Insurance Coverage Proceedings before the commission should be stayed pending resolution of insurance coverage issues in a civil case.

In Travelers Insurance v. Precision Cabinets, Inc., 2012 IL App (2d) 110258WC, the petitioner sought benefits from Precision Cabinets for injuries he suffered in the course of his employment. Precision Cabinets entered into an agreement with Employers Consortium, Inc. (ECI) to provide

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outsourced employee-related services, and the petitioner was deemed a borrowed employee by the arbitrator. Pursuant to its contract with Precision Cabinets, ECI secured a workers’ compensation policy from Travelers Insurance. This policy included four endorsements providing workers’ compensation coverage to leased workers provided by ECI to the endorsed ECI clients, but the endorsements did not include Precision Cabinets at the time of the petitioner’s accident. The arbitrator determined that Precision Cabinets had workers’ compensation coverage and ECI had no workers’ compensation coverage based on the lack of endorsement. The commission, however, found that ECI did have workers’ compensation coverage, and found ECI and Precision Cabinets jointly and severally liable for the petitioner’s work related injuries. The commission stated that all ECI employees were covered by the Travelers policy, regardless of any provisions or endorsements attempting to limit Travelers’ liability. The circuit court reversed the commission, finding that Precision Cabinets was not endorsed until after the petitioner’s accident and, therefore, Travelers owed no coverage. The second district looked to section 4(a)(3) of the act and determined that this section required that the policy cover all the employees and the entire compensation liability of ECI. The court also relied on the language section 4(a)(3) that stated that any provisions in a policy attempting to limit the liability of the insurance carriers shall be wholly void. In sum, the court reversed the circuit court’s holding and affirmed the commission’s decision, finding that by choosing to purchase workers’ compensation coverage, ECI purchased it for all of its employees, including the petitioner. Further, ECI’s failure to secure an endorsement adding Precision Cabinets to the Travelers’ policy until after the petitioner’s accident was ineffective to withdraw the petitioner from the operation of the act. In Hastings Mutual Ins. Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) 101751, the appellate court considered a complex case involving an attempt to cancel a workers’ compensation insurance policy and parallel proceedings before the commission and in the circuit court. In that case, the petitioner filed a claim against Ultimate Back Yard and its insurer, Hastings Mutual. For approximately five months, the insurer was providing temporary total disability and medical benefits to the petitioner. At that point, Hastings withdrew its acceptance of the petitioner’s claim and pursued a declaratory judgment action based on its cancellation of the workers’ compensation insurance for Ultimate Back Yard. Before the circuit court, Hastings Mutual argued that it sent a notice of cancellation to Ultimate Back Yard on January 14, 2008, prior to the injured worker’s accident. In addition, Hastings Mutual filed a motion to stay the proceedings with the commission. Both the petitioner and Ultimate Back Yard filed motions to dismiss the declaratory judgment action, as well as responses to the motion to stay the commission’s proceedings. The next month, the petitioner proceeded with the workers’ compensation claim, and an arbitrator ruled against Hastings Mutual on the issue of insurance coverage. Shortly thereafter, the trial court ruled against Hastings Mutual on the declaratory judgment, and declared the motion to stay moot, in light of the arbitrator’s similar decision. The circuit court also granted the motion to

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dismiss filed by the petitioner and Ultimate Back Yard, finding that the commission had authority to decide the coverage issue. Rather than consenting to proceeding at the commission, Hastings Mutual filed another motion to stay or sever the commission proceedings on the insurance coverage issue. The circuit court denied Hastings Mutual’s motion to stay, and Hastings took the case to the appellate court. On appeal, the petitioner argued that the insurance coverage issue required the specialized expertise of the commission. In response, Hastings Mutual argued that its appeal presented an issue of law with regard to its compliance with section 4(b) of the act. Ultimately, the appellate court held that Hastings’ appeal presented an issue of law, which would best be handled by the circuit court. The appellate court noted that the central issue was whether Hastings complied with the statutory requirements of section 4(b) in cancelling the workers’ compensation policy. The appellate court reversed the circuit court, and directed the circuit court to stay the proceedings before the commission until the coverage issue was resolved. In this case, the appellate court decided that the circuit court was better equipped to resolve a dispute about the interpretation of the Workers’ Compensation Act. In doing so, it took the coverage dispute out of the hands of the commission.

F. Final and Appealable Orders A decision by the circuit court to remand for entry of dismissal may be considered a final and appealable order, thereby conferring appellate jurisdiction on the appellate court.

In Edmonds v. Illinois Workers’ Compensation Comm’n, 2012 IL App (5th) 110118WC, the appellate court considered the preliminary question of whether it had jurisdiction over a case where the circuit court reversed a commission decision awarding benefits, and remanded the case for proceedings consistent with the court’s ruling. The circuit court had reversed the commission, finding that the petitioner’s occupational disease claim was barred by the doctrine of collateral estoppel due to a federal proceeding on the same issues, which had determined the petitioner did not have coal workers’ pneumoconiosis (CWP). In its reasoning, the appellate court noted when the circuit court reverses the decision of an administrative agency and remands the matter to the agency for further proceedings, the circuit court’s order is not final for purposes of appeal. “However, if, on remand, the agency has only to act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters or merely make a mathematical calculation, then the order is final for purposes of appeal.” Edmonds, 2012 IL App (5th) 110118WC, ¶ 19. In this case, the circuit court vacated the decision of the commission and remanded the matter to the commission “to enter a decision consistent with [the circuit court’s] findings.” Id. Under these circumstances, “we find that the trial court’s order was final for purposes of appeal as the commission has only to act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters.” Id.

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G. Non-Final Language A remand by the commission for further

determinations on vocational rehabilitation issues is non-final despite language in the commission’s decision stating that the order is subject to remand only after the time for appeal has expired.

In Supreme Catering v. Illinois Workers’ Compensation Comm’n, 2012 IL App (1st) 111220WC, the appellate court held that a decision of Workers’ Compensation Commission remanding to arbitrator for further proceedings on issue of vocational rehabilitation was interlocutory and thus not final and appealable. The commission had reversed the arbitrator’s award, made an award of TTD benefits and medical expenses, and remanded to the arbitrator for a determination of the petitioner’s need for vocational rehabilitation, his need for maintenance, and his need for further treatment, as well as the nature and extent of his permanent disability, purportedly pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980). The commission decision also provided that the remand would take place “only after the latter of expiration of the time for filing a written request for summons to the circuit court has expired without the filing of such a written request, or after the time of completion of any judicial proceedings, if such a written request has been filed.” Supreme Catering, 2012 IL App (1st) 111220WC at ¶ 9. According to the appellate court, a decision of the commission which remands the case to the arbitrator for further proceedings on the issue of vocational rehabilitation is not a final order. In such cases, it does not matter whether the remand is for the purpose of providing the specifics of a generalized plan ordered by the commission or for a determination of whether vocational rehabilitation should be ordered. In either case, further proceedings are required before an administrative decision is final. Likewise, the court said, “it does not matter whether the remand arises in an expedited hearing where the nature and extent of permanent disability is not an issue, or in a proceeding where the commission determines that the claimant’s condition has not yet reached permanency and vacates an arbitrator’s permanency award.” Id. at ¶ 18. In either type of proceeding, a remand for further hearing on the issue of vocational rehabilitation requires further administrative involvement, and the decision of the commission is not final. The court found, it “is apparent in this case that the commission’s decision, remanding for a determination of the need for vocational rehabilitation, requires further administrative proceedings.” Id. at ¶ 19. Thus, the commission’s decision was not a final, appealable order, and the circuit court lacked jurisdiction on review. A finding of permanency on two different grounds, with no majority concurrence on the precise nature of the permanency benefits, is a non-final order and must be remanded. The appellate court held that a commission decision which awarded benefits, but in which the two majority commissions disagreed as to which type of permanency benefit, was not a final decision and must be remanded. In University of Illinois Hosp. v Illinois Workers’ Compensation Comm’n, 2012 IL App (1st) 113130WC, both the petitioner and the employer appealed from a circuit court order which confirmed a Workers’ Compensation Commission decision awarding

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the petitioner benefits pursuant to the act for injuries she allegedly received while in the employ of University Hospital. The two appeals were consolidated for review. The appellate court vacated the judgment of the circuit court and remanded the cause to the commission for entry of a final decision with regard to the petitioner’s request for permanent disability benefits. At issue in the appeal was an interpretation of section 19(e) of the Workers’ Compensation Act, which provides, in relevant part, that “a decision of the Commission shall be approved by a majority of a panel of 3 members of the Commission.” 820 ILCS 305/19(e). In this case, the record affirmatively demonstrated there was no approval by a majority of the 3–member panel of commissioners regarding the petitioner’s entitlement to a permanent disability award. In a rather interesting and unusual ruling, just one commissioner, Commissioner Dauphin, found the petitioner was entitled to PPD benefits and was not entitled to PTD benefits under the odd-lot theory. A second commissioner, Commissioner Mason, dissented in part and concluded the petitioner had proved that she was permanently and totally disabled under the odd-lot category and was entitled to PTD benefits. The third commissioner, Commissioner Lindsay, dissented from the entire decision and found the petitioner was not entitled to benefits because she had failed to prove that her injury and current condition of ill-being were causally related to her employment. Therefore, although the two commissioners found that the petitioner was entitled to receive benefits, they did not agree with regard to a permanency award. Because a majority of the commissioners did not approve the PPD award, the decision issued by the commission is not final because it does not dispose of the petitioner’s request for permanent disability benefits in accordance with the unambiguous language of section 19(e). In Dial Corp. v. Illinois Workers’ Compensation Comm’n, 2013 IL App (2d) 120332WC, the appellate court held that it did not have jurisdiction to consider the petitioner’s appeal. The trial court vacated the commission’s award of medical expenses and remanded the case to the commission to determine whether the petitioner paid any out of pocket medical expenses for which she was not reimbursed. The court noted that the trial court’s order required the commission to resolve a disputed issue of fact concerning whether the petitioner paid any out of pocket medical bills for which he was not reimbursed. Accordingly, the petitioner’s appeal was deemed to be premature. The court noted that its decision to not deprive the parties to the right to judicial review because once the commission resolved the out-of-pocket medical expenses question, its decision would be reviewable by both the trial and appellate courts.

H. Collateral Estoppel A decision by the U.S. Department of Labor denying a petitioner benefits under the Black Lung Benefits Act for coal miner’s pneumoconiosis does not bar the petitioner from relitigating in an occupational disease proceeding whether he had CWP and whether it was related to his employment.

In Edmonds v. Illinois Workers’ Compensation Comm’n, 2012 IL App (5th) 110118WC, the appellate court held that the petitioner’s occupational disease claim was not barred under the doctrine of collateral estoppel by a United States Department of Labor determination that he

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did not suffer from coal workers’ pneumoconiosis (CWP). The arbitrator had found the CWP compensable and found that the claim had been timely filed within two years of the date of last exposure. The commission affirmed. On judicial review, the circuit court reversed, finding that the doctrine of collateral estoppel precluded any finding that petitioner had CWP within two years after his last date of exposure because the United States Department of Labor had found to the contrary in a proceeding for benefits under the Black Lung Benefits Act (30 U.S.C. § 901 et seq. (2000)). According to the appellate court, at issue was whether the department’s November 25, 2002, decision denying petitioner benefits under the federal Black Lung Benefits Act precluded the petitioner from establishing timely disablement under section 1(f) of the act (820 ILCS 310/1(f)). The court reviewed the question de novo, noting that the applicability of collateral estoppel is a question of law. “Collateral estoppel applies when a party participates in two separate and consecutive cases arising out of different causes of action and some controlling factor or question material to both cases has been fully and completely resolved by a court of competent jurisdiction against a party in the former suit.” Edmonds, 2012 IL App (5th) 110118WC, ¶ 20. The doctrine prohibits relitigation in the later proceeding of an issue actually decided in the earlier proceeding. For collateral estoppel to apply, three threshold requirements must be established: (1) the issue decided in the prior adjudication must be identical to the issue in the current action; (2) the party against whom estoppel is asserted must have been a party or in privity with a party in the prior action; and (3) the prior adjudication must have resulted in a final judgment on the merits. Id. at ¶ 21. In this case, the appellate court found identity issues, because whether petitioner had CWP was at issue in both the proceeding before the department and this proceeding. It further held that the party against whom estoppel is asserted, in this case petitioner, was a party to the claim before the department. The court also said it had no doubt that the district director’s decision was final. Regulations pertaining to the procedure for pursuing a claim under the Black Lung Benefits Act expressly provide that the failure to request a hearing before the Office of Administrative Law Judges within 30 days after the issuance of a proposed decision and order (or a revised proposed decision and order) renders the proposed decision and order final. 20 C.F.R. § 725.419 (2002). The petitioner conceded that he did not appeal the revised proposed decision and order issued on November 25, 2002; thus, the district director’s decision was final. The court then said, “[a] more difficult question is whether the district director’s determination constituted an ‘adjudication’ for purposes of collateral estoppel.” Edmonds, 2012 IL App (5th) 110118WC, ¶ 22. After reviewing the various aspects of the federal proceeding and concluding that the hearing before the department director was more limited, the appellate court concluded that the federal proceeding was not an adjudication and that the circuit court’s conclusions were wrong. The court observed:

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In the federal proceeding, the amount of medical evidence claimant could submit was restricted. Further, there was no formal hearing and the powers of the district director are clearly limited. For instance, the district director is authorized to “make determinations” with respect to claims under the Black Lung Benefits Act, conduct conferences and informal discovery proceedings, compel the production of documents by the issuance of subpoena, prepare documents for the signature of the parties, and issue appropriate orders. 20 C.F.R. §725.351(a) (2002). However, unlike an administrative law judge, a district director is not expressly authorized to conduct formal hearings, administer oaths and examine witnesses, compel the appearance of witnesses by the issue of subpoenas, or “issue decisions and orders” with respect to claims under the Black Lung Benefits Act.

Edmonds, 2012 IL App (5th) 110118WC, ¶ 27. As a result, the appellate court reversed the circuit court and remanded for reinstatement of the commission’s decision.

I. Waiver of Compliance with Rules A party may stipulate to waive the timely filing of the transcript on review and if so stipulated, that party cannot rely on a later filing of the transcript to defeat jurisdiction on review.

A rather interesting procedural question was addressed in Ingrassia Interior Elements v. Illinois Workers’ Compensation Comm’n, 2012 IL App (2d) 110670WC, concerning the timely filing of the transcript of arbitration on review. During a hearing before the arbitrator, the petitioner and the respondent both signed a “request for hearing” form, which contained the following stipulation:

Both parties agree that if either party files a Petition for Review of Arbitration Decision and orders a transcript of the hearings, and if the Commission's court reporter does not furnish the transcript within the time limit set by law, the other party will not claim the Commission lacks jurisdiction to review the arbitration decision because the transcript was not filed timely.

Ingrassia Interior Elements, 2012 IL App (2d) 110670WC, ¶ 4. An evidentiary hearing commenced a few months later and at the beginning of this hearing, respondent informed the arbitrator that it “would like to put a line through [the standard stenographic stipulation] and *** ask[ed that] the Commission follow the mandates under section 19(b) of the Act.” Id. at ¶ 4. (“Unless a petition for review is filed by either party within 30 days after the receipt by such party of the copy of the decision and notification of time when filed, and unless such party petitioning for a review shall within 35 days after the receipt by him of the copy of the decision, file with the Commission either an agreed statement of the facts appearing upon the hearing before the Arbitrator, or if such party shall so elect a correct transcript of evidence of the proceedings at such hearings, then the decision shall become the decision of the Commission and in the absence of fraud shall be conclusive.”). The form was filed only thereafter.

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After losing before the arbitrator, the petitioner filed a petition for review with the commission, and ordered the transcript. In short, the transcript was not filed within the time set by section 19(b). Before the commission, the employer moved to dismiss the review for failure to file a timely transcript. The employer’s motion was denied and the issue raised by the employer on judicial review. The circuit court reversed the commission, dismissing the appeal. The appellate court reversed, and reinstated the commission’s decision. While initially framing the issue as whether the fact that a transcript was not filed within the time period specified in section 19(b) of the act deprived the commission of jurisdiction to review the decision of the arbitrator. The appellate court narrowed the question to whether respondent waived its ability to object to the fact that neither a transcript nor an agreed statement of facts was filed within the statutory time period. In response, the appellate court stated that the answer “turns on whether the stipulation became binding at the time the parties, by signing the ‘request for hearing’ form, exchanged their promises not to object to jurisdiction in the event the transcript was not timely filed or whether it was ineffective until the ‘request for hearing’ form was filed with the arbitrator, which was after respondent's purported repudiation of the agreement. Id. at ¶ 12. Relevant to this question is section 7030.40 of title 50 of the Code (50 Ill. Adm. Code 7030.40, which provides as follows:

Before a case proceeds to trial on arbitration, the parties (or their counsel) shall complete and sign a form provided by the Industrial Commission called Request for Hearing. However, in the event a party (or his counsel) shall fail or refuse to complete and sign the document, the Arbitrator, in his discretion, may allow the case to be heard and may impose upon such party whatever sanctions permitted by law the circumstances may warrant. The completed Request for Hearing form, signed by the parties (or their counsel), shall be filed with the Arbitrator as the stipulation of the parties and a settlement of the questions in dispute in the case.”

Id. at ¶ 13. Both respondent and the trial court read this regulation as clearly stating that a “request for hearing” form does not become binding until it is filed with the arbitrator. The appellate court responded, “[w]e see nothing in this provision that speaks to when a ‘request for hearing’ form—and the stenographic stipulation contained therein—becomes binding. Moreover, we note that much of a ‘request for hearing’ form consists of what are essentially requests for evidentiary admissions intended to limit the issues that are in dispute.” Id. Moreover, it said, “[i]t would be an odd rule indeed that would allow a party to recant such an admission on the eve of a hearing, thereby depriving an opponent of the opportunity to conduct discovery on an issue.” Id.

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J. Section 19(g) Statute of Limitations

In Curtis v. Illinois Workers’ Compensation Comm’n, 2012 IL App (1st) 120976WC, the court held that the petitioner’s section 19(h) petition was untimely. Section 19(h) clearly provides that either party may petition the Workers’ Compensation Commission to reopen an award for a period of only 30 months after the date of the commission’s decision. In this case, the 30 months began to run on January 25, 2005 and the petitioner did not file his section 19(h) petition until January 21, 2010, almost 60 months after the final decision was issued. The petitioner argued that section 19(h) only covered permanency and did not cover temporary total disability. Accordingly, the 30 month rule should not apply because the petitioner’s condition had destabilized and he was therefore entitled to TTD benefits once more. The court rejected that argument, stating that TTD benefits were included in the 30 month rule and that to hold otherwise would read the 30 month rule out of the act.

K. Treater v. IME

In Verela v. Illinois Workers’ Compensation Comm’n, 2013 IL App (2d) 120380WC, the court upheld the commission’s finding that the petitioner failed to prove that her condition of ill-being was causally related to her work place accident. There were a number of medical opinions in the case. The commission relied on the opinions of several treaters and an IME physician who concluded that the petitioner’s injury had resolved despite the fact that other treaters indicated that the petitioner still needed medical treatment. The court noted that the commission was not required to accept the opinions of treating physicians over those of an IME physician. The commission was at liberty to place appropriate weight on medical opinions as it saw necessary provided that the medical opinions were reasonable. The court found that the commission’s decision to give more weight to the opinions of physicians who supported the respondent’s position was not against the manifest weight of the evidence. II. SUBSTANTIVE LAW

A. Medical Benefits A petitioner may recover medical benefits for prospective surgery to cure a disfigurement even where the alleged disfigurement may not be compensable as such under section 8(c).

In Dye v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 110907WC, a four justice majority of the appellate court reversed a unanimous commission decision to deny medical benefits associated with a prospective cosmetic surgery intended to relieve a small indentation in the petitioner’s forehead. The petitioner had suffered an injury at work when a hose she was using snapped loose and the nozzle struck her in the forehead. She was diagnosed with a concussion and eventually returned to work without restrictions. Two years later, she was examined by a neurologist, who said that no further treatment was necessary and that the dent would not cause her any trouble in the future. The petitioner was then seen by a dermatologist, who recommended an injection procedure to cure the indent.

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The arbitrator and commission denied the prospective cosmetic surgery, finding that at best the evidence was unclear as to whether the petitioner had “an observable disfigurement.” The appellate court, in a 4-1 decision, reversed the commission, remanding the case and ordering that the employer pay for the prospective cosmetic surgery. In so doing, the appellate court relied on section 8(a), which states in relevant part:

The employer shall provide and pay * * * all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury. 820 ILCS 305/8(a).

Dye, 2012 IL App (3d) 110907WC at ¶ 10. According to the court, the dent constituted a disfigurement and the prospective surgery alleviated that disfigurement. Moreover, the court reached this conclusion even though the indentation may not rise to the level of disfigurement for the purposes of permanency under section 8(c). The court also rejected the commission’s reliance on the neurologist’s opinion that the indent would not cause any further problems and needed no additional care. According to the court, the evidence “clearly shows that, as a result of the January 27, 2007, industrial accident, petitioner suffered a ‘disfigurement’” and “clearly demonstrates that the disfigurement is observable to the naked eye.” Id. at ¶ 12. Given these facts, the court said, “we conclude that the Commission’s denial of prospective cosmetic medical care on the basis that it was ‘unclear’ whether petitioner had an ‘observable disfigurement’ is against the manifest weight of the evidence.” Id. Justice Turner dissented on the prospective medical ruling, arguing that the majority had interjected its own observations and inferences into the analysis and reweighed the evidence, thereby, failing to defer to the commission concerning a fact issue. Justice Turner noted the petitioner “provided little evidence as to the appearance of the indentation, which under both descriptions is small. Instead of providing photographs of the indentation, she simply showed it to the arbitrator, who did not describe the indentation for the record.” Id. at ¶ 22. He added, “The lack of photographs raises a red flag as to how observable the indentation is. The arbitrator’s statement after seeing the indentation provides no information as it is vague and subject to different interpretations. While the majority concludes the arbitrator’s statement clearly indicates petitioner had a disfigurement observable to the naked eye (supra at ¶ 18), one can just as reasonably infer the arbitrator was questioning the need to fix something so trifling, i.e., ‘you have got to be kidding.’ In fact, the record does not disclose how close the arbitrator was to the claimant when the arbitrator made the statement.” Id. In American Airlines, Inc. v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120107WC, a number of issues were before the appellate court. The court affirmed the commission’s

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determination that the petitioner’s injuries were causally related to her employment, that the petitioner was entitled to TTD benefits and that awarded medical bills were consistent with the manifest weight of the evidence. With regard to medical bills, however, the appellate court remanded the case back to the commission for the limited purpose of specifying what medical bills the commission awarded the petitioner and what credits the respondent was entitled to receive. The parties stipulated at arbitration that the respondent had already paid certain medical bills and that the respondent was entitled to a credit for the bills paid. The respondent argued on appeal that the arbitration award simply had an amount awarded for medical bills and did not clearly delineate what medical bills were awarded and what credits the respondent was entitled to receive. In light of the stipulation, the court agreed with the respondent that the matter had to be remanded to the commission for the purpose of having the commission clarify what medical bills were awarded and what credits the respondent was entitled to receive. The record simply was not clear about bills and credits and the commission, as the finder of fact, had to clarify its award in that regard.

B. Compelling FCE An employer nor the commission can compel a petitioner to undergo a Functional Capacity Evaluation (FCE) event where requested by or beneficial to a section 12 Independent Medical Examiner physician.

In W.B. Olson, Inc. v. Illinois Workers’ Compensation Comm’n, 2012 IL App (1st) 113129WC, the employer Olson challenged the commission's refusal to order the petitioner submit to an FCE, as recommended by Dr. Tonino, the petitioner’s physician. In response, the petitioner argued that the issue presented a question of statutory construction and that the act did not provide any authority enabling the commission to require the petitioner to submit to an FCE. The appellate court agreed with the petitioner and found that nothing in the act compelled the petitioner to undergo an FCE. According to the court, “section 12 of the Act is the only statutory provision permitting an employer to require a claimant to submit to any type of medical evaluation.” See 820 ILCS 305/12 (West 2010); W.B. Olson, Inc., 2012 IL App (1st) 113129WC, ¶ 45. That section provides, in relevant part, that “[a]n employee * * * shall be required, if requested by the employer, to submit himself * * * for examination to a duly qualified medical practitioner or surgeon selected by the employer.” 820 ILCS 305/12 (West 2010); W.B. Olson, Inc., at ¶ 45. Thus, the language of section 12 expressly limits the right of an employer to demand an examination by a “medical practitioner or surgeon.” Referencing Dorland’s Illustrated Medical Dictionary, the appellate court concluded that, “[a] medical ‘practitioner’ is ’one who has complied with the requirements and who is engaged in the practice of medicine.’ Dorland’s Illustrated Medical Dictionary 1248 (25th ed. 1974);” Id. The court continued, “[a] ‘physical therapist’ is ’person skilled in the techniques of physical therapy and qualified to administer treatments prescribed by a physician and under his supervision.’” (citing Dorland's Illustrated Medical Dictionary 1597 (25th ed. 1974)). In the court’s mind, “[c]learly, a physical therapist does not fall within the meaning of a ’medical practitioner’ as specified in section 12.” Id.

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The appellate court used the same analysis in its assessment of section 19(c) of the act, which grants the commission the authority to order “an impartial physical or mental examination of a petitioner whose mental or physical condition is in issue.” See 820 ILCS 305/19(c) (West 2010). The court observed, “Yet, that authority is similarly limited to examinations by ’a member or members of a panel of physicians.’” See 820 ILCS 305/19(c); W.B. Olson, Inc., 2012 IL App (1st) 113129WC, ¶ 46.

C. Permanency Permanency benefits for injuries to shoulders are governed not by a percentage of an arm but as a person as a whole.

In Will County Forest Preserve District v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 110077WC, the Appellate Court, Third District, Workers’ Compensation Commission Division considered a case involving a right shoulder injury. The case proceeded to arbitration, and the arbitrator made an award of 25 percent loss of use of a person as a whole. The commission adopted the decision of the arbitrator, and the circuit court further affirmed the decision. The respondent sought review of the case by the appellate court. On appeal, the respondent argued that an award based on a person as a whole was improper because the petitioner failed to establish that his injuries prevented him “from pursuing the duties of his usual and customary line of employment,” Will County, 2012 IL App (3d) 110077WC at ¶ 11, given that the petitioner returned to his regular job with no modification to his job duties. It was the respondent’s contention that the award should have been based on a percentage loss of use of the arm, pursuant to section 8(e)(10) of the act. The appellate court upheld the award based on a person as a whole because the plain language of the act establishes that the arm and shoulder are distinct parts of the body. Therefore, if the petitioner sustained an injury to his shoulder, an award for a percentage loss of use of an arm would be improper. The court relied upon the petitioner’s medical records to support its findings, and noted that those records clearly established an injury to the shoulder, as opposed to the petitioner’s arm. In this case, the appellate court held that an injury to the petitioner’s shoulder should result in an award based on a percentage loss of use of a person as a whole, and not an award based on a percentage loss of use of an arm. Despite the fact that shoulder injuries had routinely resulted in awards based on a percentage loss of use of an arm, the commission looked to the language of the act to conclude that this was improper.

D. PTD Benefits Properly Denied for Failure to Establish Job Search

In Professional Transportation, Inc. v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 100783WC, a petitioner sustained bilateral knee injuries which ultimately required knee replacements. Following the knee replacement procedures, the petitioner was provided with permanent work restrictions. The respondent’s expert physician opined that the petitioner would be able to return to his regular job as a van driver. The petitioner’s treating physician, by way of

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a functional capacity evaluation, concluded that the petitioner would not be able to return to his regular job. At trial, the petitioner testified that he had applied to nine separate car dealerships looking for work. In addition, the petitioner stated that he reviewed the job section in the newspaper for a year and a half, and was unable to obtain employment within his restrictions. Based on this evidence, the arbitrator awarded the petitioner 65 percent loss of use of his right leg, but denied the petitioner’s request for an “odd-lot” permanent total disability award. The petitioner appealed the case to the commission, and the award was modified to provide the petitioner with permanent total disability based on the “odd-lot” theory. The circuit court affirmed the commission’s decision, and the respondent brought the case to the Appellate Court, Workers’ Compensation Commission Division. At the appellate court, the respondent argued that the medical evidence did not support a permanent total disability award, and that the petitioner’s job search was not sufficiently diligent to support a permanent total disability award under the “odd-lot” theory. The appellate court agreed, noting that both the medical evidence and the job search were insufficient for a permanent total disability award. The appellate court explained that the petitioner’s job search was meager, and found that he had not put forth enough effort to establish a permanent total disability award. Finally, the appellate court relied upon the petitioner’s medical records in finding that he should be capable of some type of work. Although the medical evidence revealed a dispute regarding the types of work he could perform, all of the petitioner’s physicians agreed that he would be capable of some level of employment. In this case, the appellate court held that the petitioner failed to present sufficient evidence to establish a permanent total disability award. Specifically, the appellate court indicated that a more thorough job search would be required before a permanent total disability award would be appropriate.

E. Manifest Weight of the Evidence

In Wood Dale Electric v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 113394WC, the court held that the petitioner was entitled to a wage differential award despite his retirement and that the employer was not entitled to credit for pension benefits paid. The petitioner retired three years early after suffering a work related shoulder injury. The petitioner was no longer able to work at his previous job as a journeyman electrician and sought work through a vocational specialist. Before deciding to retire early, he accepted a job as a school bus driver. The bus driver job paid him $12.50 per hour for 20 hours per week as opposed to $37.80 per hour that he would have received as an electrician. The court held that the petitioner’s voluntary decision to remove himself from the work force did not preclude a wage differential award. A wage differential award is determined by comparing the petitioner’s prior earning capacity to the amount he is earning or is able to earn in some suitable employment or business after the accident.

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The court also held that the respondent could not use a section 8(j) credit for retirement pension benefits that the petitioner received upon his retirement. The parties did not dispute that the pension payments were the result of normal pension retirement benefits and were wholly unrelated to the petitioner’s workers’ compensation accident. Under section 8(j), the employer receives no credit for benefits that would have been paid irrespective of the occurrence of a workers’ compensation accident. The court found that, while the petitioner’s retirement was early, retirement was something that the petitioner would have done at some point and that payment of retirement pension benefits were separate and apart from the petitioner’s workers’ compensation claim. Accordingly, the respondent was not entitled to a credit for pension benefits paid. The court agreed with the commission’s finding that the petitioner was an independent contractor and not an employee at the time he was injured. In this case, the court noted that there were facts suggesting both that the petitioner was an employee and an independent contractor. After a lengthy discussion of the facts, the court noted that the evidence regarding the most important factor in determining an employer/employee relationship was the right of the employer to control the employee’s work. In this case, the court noted that the evidence on that issue was conflicting and evidence concerning several of the other factors cut both ways. The court found that there was sufficient evidence to support the commission’s finding of no employer/employee relationship, particularly considering the evidence suggesting that the employer did not control the manner in which the petitioner performed his work. The evidence was in conflict, therefore it was the commission’s province to weigh the evidence and decide among competing inferences. The court concluded that it could not say that the commission’s decision was against the manifest weight of the evidence, i.e., that the opposite conclusion was clearly apparent. Justices Hoffman and Stewart dissented. The justices agreed that the commission’s province is to weigh the evidence when the evidence is well balanced and decide among competing inferences. They concluded that the evidence was not well balanced. In their view, the evidence supporting a finding that the petitioner was an employee far outweighed any evidence supporting the conclusion that he was an independent contractor. As a result, they believe that the decision was against the manifest weight of the evidence. In Stidwell v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120408WC-U, the court upheld the commission’s decision to award permanent partial disability benefits and to deny the petitioner’s claim of permanent total disability. The petitioner was diagnosed with carpal tunnel syndrome and was recommended for surgery. Her treating physician put a one-handed work only restriction on the petitioner based on the surgical recommendation. He made it clear that if the petitioner underwent the surgery, it was very likely that the petitioner would recover within four to six weeks and be able to resume her former occupation. The petitioner declined to have the surgery. At arbitration, the petitioner claimed that she fit into the “odd lot” permanent total disability category because of what she claimed was a permanent work restriction. The court noted that the commission correctly found that the work restriction would be permanent under the assumption that the petitioner received no further medical care for her condition. The court

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found that the commission’s decision was not against the manifest weight of the evidence and denied the petitioner’s claim of permanent total disability benefits. In Illinois Tool Works v. Illinois Workers’ Compensation Comm’n, 2013 IL App (2d) 111256WC-U, the commission originally found that the petitioner was entitled to a permanent partial disability award of 40 percent of a person as a whole. The circuit court reversed, finding that the commission’s denial of wage differential benefits was against the manifest weight of the evidence. The circuit court remanded the matter to the commission with instructions to award the petitioner a wage differential. The commission followed the circuit court’s direction and entered a wage differential award. The court found that the commission’s original award of 40 percent of a person as a whole was not against the manifest weight of the evidence and vacated the wage differential award. The court noted that the commission found that the petitioner did not conduct a diligent job search before accepting work at $8 per hour. The petitioner also had a vocational expert testify that the petitioner could expect to earn between $8 to $12 per hour, and possibly as high as $15 per hour, in suitable work. The court found that essentially taking the first job that came along did not establish what the petitioner was able to earn and that the expert’s testimony was vague on earning ability. Accordingly, the petitioner did not carry her burden of proof and the commission denied the wage differential award and instead awarded permanent partial disability. The court found that, under those facts, the commission and its decision was not against the manifest weight of the evidence and the denial of wage differential benefits was appropriate.

F. Loaned/Borrowed Employees

In Illinois Ins. Guar. Fund v. Virginia Surety Co., Inc., 2012 IL App (5th) 113758, the petitioner was injured on the job while his employer, T.T.C. Illinois (T.T.C.) was lending him to MGM Company, Inc. (MGM). The workers’ compensation insurer for T.T.C. subsequently became insolvent, and the Illinois Insurance Guaranty Fund (the Fund) made payments to the petitioner. The Fund then filed this action for reimbursement from MGM’s workers’ compensation insurer, Virginia Surety Company, Inc. The circuit court granted summary judgment in favor of the Fund, but the appellate court reversed, finding that Virginia Surety was not required to compensate T.T.C.’s employees based on the following analysis. It is undisputed that the petitioner was a borrowed employee at the time of the accident. The facts indicated that T.T.C. intended to procure its own workers’ compensation coverage and that MGM needed coverage only for its own employees. As such, Virginia Surety disregarded MGM’s leased employees, including the petitioner who was a leased employee of T.T.C., in MGM’s premium calculations. The court analyzed three statutes to make its determination. The first argument was based on section 1(a)(4) of the act, which states that the rights and remedies of the workers’ compensation system are available to borrowed employees, the borrowing employer is primarily liable for compensable injuries, and the lending employer has a right of action against the borrowing employer to recover any compensation. The employers are authorized to reverse this

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payment priority. The court looked to the Wisconsin Supreme Court’s application of a similar law where the Wisconsin Supreme Court found that the purpose of this law was to ensure the employee would be compensated. The court in this case agreed, and stated that the Illinois legislature meant to ensure that one of the two employers would financially prepare for employee accidents, and did not require both a lending employer and a borrowing employer to procure identical coverage for the same employees. The court went on to state that this type of duplicative coverage would not provide a double benefit, but would instead unnecessarily increase the cost of using a temporary staff and would give insurers a windfall whenever employees were loaned. Accordingly, the court held that section 1(a)(4) does not require duplicative coverage where the lending employer is contractually obligated to obtain coverage for leased employees. The court then looked to section 4(a)(3) of the act, which requires that an employer’s policy cover all the employees. The court found that this means that an employer and its insurer cannot selectively omit an employee or employees from the coverage of a workers’ compensation policy. The court found that this does not suggest that a borrowing employer must duplicate the coverage that a lending employer has procured. Finally, the Fund relied on section 546(a) of the code, which states that a petitioner must be required to first exhaust all coverage provided by any other insurance policy before the Fund is obligated. Here, the court found that because MGM’s coverage was limited to only its employees, not leased employees, the Virginia Surety policy was not “other insurance” within the meaning of section 546(a). Thus, the court held that none of the three statutes relied upon by the Fund shifted liability to Virginia Surety, ultimately holding that when a lending employer has workers’ compensation coverage, a borrowing employer is not required to obtain duplicative coverage. In Prodanic v. Grossinger City Autocorp., Inc., 2012 IL App (1st) 110993, the petitioner brought a wrongful death action on behalf of her decedent who suffered fatal injuries when he was repairing a garage door on the premises of Grossinger City Autocorp, Inc. (City Autocorp). The trial court granted summary judgment in favor of City Autocorp on the basis that the decedent was a borrowed employee of City Autocorp and, therefore, the Workers’ Compensation Act provided the exclusive remedy. The decedent was hired by Grossinger Chevrolet (Chevrolet), and at the time of his injury he was working on the premises of City Autocorp, doing business as Grossinger City Toyota (Toyota). The decedent was hired as a driver for Gary Grossinger and to perform maintenance work. Gary was the only person who could discharge the decedent and the decedent was hired through Chevrolet, but Gary considered the decedent an employee of both entities. One workers’ compensation policy covered the employees of all Grossinger dealership, and each dealership paid its share. City Autocorp moved for summary judgment arguing that the decedent was a borrowed employee at the time of the accident, and the petitioner asserted that there was a genuine issue

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of material fact as to whether the decedent really was a borrowed employee. The court found that City Autocorp could call the decedent and tell him to come in and write a list of tasks for him to perform, and it could also stop the decedent from working if they felt his manner of work was unsafe. The record showed that it was unnecessary to control the decedent’s work as he was self-sufficient and did not need instructions. The court affirmed the trial court’s summary judgment order in favor of City Autocorp as the evidence showed that City Autocorp had the right to control the decedent, even if it did not necessarily exercise this right.

G. Exclusive Remedy Provision

In Glasgow v. Associated Banc-Corp., 2012 IL App (2d) 111303, the petitioner was injured during a bank robbery while working as a bank teller for a branch of Associated Banc-Corp. In her complaint, she alleged that the bank’s conduct was “outrageous” and that she suffered permanent injuries and psychiatric conditions. The trial court dismissed the complaint, determining that the Workers’ Compensation Act was the petitioner’s exclusive remedy. Petitioner alleged that the bank was robbed twice previously, and that she and a coworker advised their supervisor that the bank lacked a security guard and bullet proof glass, and that the bank should not have open cash drawers, should not keep its vault open throughout the business day and should have a male teller present. According to the petitioner’s complaint, the bank knowingly and willfully failed to provide adequate bank security and the bank’s refusal to increase security measures constituted an intentional act of “inviting” another robbery. The defendants responded that their decision not to implement tighter security standards did not rise to the level of a specific intent to inflict injury as necessary, nor were the bank robbers in any way controlled or authorized by the bank. The court affirmed the dismissal, ruling that the petitioner did not allege that the defendants specifically intended that its actions would injure her or that the defendants commanded or authorized her injuries, nor could she reasonably make these allegations based on the facts. As such, the court found that the workers’ compensation payments that the petitioner was receiving were her only available remedy. In Rodriguez v. Frankie’s Beef/Pasta and Catering, 2012 IL App (1st) 113155, the trial court granted the defendant’s motion for summary judgment on petitioner’s negligence claim, finding that the petitioner’s exclusive remedy was through the Workers’ Compensation Act. The petitioner contended that the exclusive remedy provision does not apply in a claim where the employer negligently hired and retained an employee and that a genuine issue of material fact exists as to whether the injury arose out of employment. The petitioner’s claim arose from an altercation between Edan Maya and Jose Rodriguez, both employees of the defendant, where Maya shot Rodriguez. The record showed that Maya and Rodriguez had a verbal argument the day before the shooting, which started when Rodriguez taunted Maya about another employee being a better fry cook. The court found that the evidence was clear that the owner of the restaurant was unaware of the tensions between the parties, and that he did not believe Maya posed a serious threat of harm. Further, the owner did

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not authorize Maya’s actions. The court declined to create a new exception to the act’s exclusivity provision based on negligent hiring/retention. Looking at the petitioner’s second argument concerning whether the shooting arose out of employment, the court declined to agree with the petitioner that the shooting was a purely personal dispute. First, the record showed that the altercation involved an argument about who was a better fry cook (a position at their employment) and, second, the court found that it was unlikely he would have been involved in the altercation had he not been employed by the defendant. Ultimately, the court affirmed summary judgment in favor of the employer.

H. Statutory Interpretation of Section 5 (a) Regarding Immunity

In Mockbee v. Humphrey Manlift Company, Inc., 2012 IL App (1st) 093189, the petitioner brought a negligence action against defendants Harris Industries and R. Harris Electric (Harris) after she was injured when she fell into a floor opening of a manlift platform at the Quaker Oats Company plant where she worked. Petitioner contended that Harris, as safety inspectors of the manlift platform, owed her a duty of care and breached that duty when they failed to note the need for a safety guardrail required by OSHA. Quaker Oats hired Harris to inspect, maintain and repair the manlift platforms. Harris periodically inspected the manlifts and performed work on them. Harris never made any representations that it would inspect the manlifts for OSHA compliance, but managers of Quaker Oats said it was Quaker Oats’ expectation that Harris would ensure compliance with OSHA. Also, Harris had no authority to perform safety work unless expressly directed by Quaker Oats. The trial court granted summary judgment for Harris on the issue of proximate cause. The trial court declined to reach Harris’s claim that it was entitled to immunity under the Workers’ Compensation Act. Harris raised this issue in its cross-appeal. This court affirmed summary judgment, but on the basis that Harris was entitled to immunity under section 5(a) of the act. Section 5(a) provides that there is no common law right to recover damages from any service organization retained by the employer. Harris asserted that section 5(a) precludes the petitioner’s claim because (1) it is a service organization (2) retained by the employer (3) to provide safety service, advice or recommendations to Quaker Oats. The petitioner’s only dispute is with Harris’s claim that it is a “service organization.” The petitioner claims that including Harris as a “service organization” extends the language of the act beyond its meaning, and Harris went beyond safety inspections and also performed maintenance and repair. Further, the petitioner contended that allowing a party who had paid nothing towards workers’ compensation benefits to invoke the act’s immunity would be wrong. Harris argued that it was retained to perform safety inspections, it was not under contract to perform continuing maintenance and could not perform maintenance without express authorization. Further, Harris argues that petitioner’s claim is directly related to the negligence of its performance of safety inspections.

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The court looked to section 5(a), and noted that there can be no dispute that the legislature added “service organization” to the statutory language to expand the class of entities entitled to immunity. The court discussed that the apparent purpose of the amendment was to promote safety inspections. Further, the court found that if entities that did not contribute to workers’ compensation benefits were to be excluded from this immunity, the Illinois legislature would have used language to this effect. Harris was found to fall within the plain meaning of “service organization.”

I. Traveling Employees A temporary worker who is injured while traveling from his temporary employment to his hotel room is considered a traveling employee under the act and it’s reasonable for the employer to assume that the employee will rent a hotel room rather than commute the 200 miles between the employee’s residence and his temporary work assignment.

In this case, Venture-Newberg Perini Stone and Webster v. Illinois Workers’ Compensation Comm’n, 2012 IL App (4th) 110847WC, the petitioner was a union pipefitter, working at a nuclear power plant more than 200 miles from his home when he was injured in a motor vehicle accident while traveling from his motel to the jobsite. The petitioner had been hired by Venture-Newberg through his local Springfield, Illinois, union, and took the job because no jobs were available in the Springfield area. The petitioner filed workers' compensation action against Venture-Newberg, which was initially denied by the arbitrator, but found compensable by the commission on two grounds. First, the commission concluded the petitioner was “in the course of” his employment while traveling to work because the course or method of travel was determined by the demands or exigencies of the job rather than by the petitioner’s personal preference as to where he chose to live. Second, the commission found the petitioner was a “traveling employee” at the time of the accident. On review, the circuit court set aside the commission’s decision. The appellate court, in a 3-2 decision, reversed the circuit court and reinstated the commission’s decision to award benefits. According to the court, a “traveling employee“ is defined as “one who is required to travel away from his employer's premises in order to perform his job.” Venture-Newberg Perini Stone and Webster, 2012 IL App (4th) 110847WC, ¶ 13. The court noted it was undisputed that (1) the petitioner 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 petitioner was assigned to work were not the premises of his employer. According to the majority, these facts established the petitioner's status as a traveling employee. However, the majority did not end its analysis there. “This is not to say that the claimant's status as a traveling employee necessarily satisfied his burden of establishing that his injury arose out of and in the course of his employment. A finding that a claimant is a traveling employee does not relieve him from the burden of proving that his injury arose out of and in the course of his employment.” Id. at ¶ 14. The test of whether a traveling employee's injury “arose out of” and “in

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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.” Id. In addressing this test the appellate court noted, “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.” Id. at ¶ 15. Therefore, the commission properly concluded that the petitioner's injury, sustained when the vehicle in which he was riding to work from the lodge at which he was staying skidded on a public highway, “arose out of” and “in the course of” his employment. In a very interesting dissent joined by Justice Turner, Justice Hudson argued that the circuit court’s reversal of the commission’s decision should have been upheld. According to the dissent, “[t]he majority notes that claimant was employed by respondent and he was assigned to work at a facility operated by another entity. Based on these findings, the majority concludes that claimant qualifies as a traveling employee since ‘the premises at which the claimant was assigned to work were not the premises of his employer.’” Id. at ¶ 21. The dissent believed this interpretation “expand[ed] the definition of a traveling employee beyond its intended scope.” Id. As the dissent explained:

Significantly, claimant presented no evidence that he was required to travel away from his assigned work location in order to perform his job. Indeed, claimant's position required no travel from the work site at all. Further, claimant was not required to go to any other location prior to reporting to the Cordova plant. To the contrary, claimant's employment was fixed at a single location. Moreover, when claimant accepted the position with respondent he was aware that the job was located 200 miles from his residence. He voluntarily chose to work for respondent because no work was available within Local 137's home territory. I believe that the majority's position will lead to anomalous and unintended results. It would allow an employee who voluntarily chooses to live remotely from the place of employment to become a traveling employee and receive workers' compensation benefits for injuries while traveling to and from work from a temporary residence. Perhaps more significantly, under the approach taken by the majority, everyone hired at the Cordova plant on a temporary basis, even individuals residing in close proximity to the plant, would arguably became a traveling employee.

Id. at ¶ 22. According to Justice Hudson, “I would hold that in cases such as this, where an employee is hired on a temporary basis only and is assigned by the employer to work at one specific jobsite

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for the duration of the employment, that assigned location becomes the employer's “premises” for purposes of the application of the traveling-employee rule. Of course, if the employee is directed or required to work away from the assigned location during the period of temporary employment, the employee would then become a traveling employee under the law.” Id. at ¶ 26. This interpretation, he added, would lead to results more grounded in the true considerations of a given case and be more consistent with the purpose of the traveling-employee rule. “That is, it is the requirements or directions of the employer, not a voluntary decision by the employee, that determines whether an individual is classified as a traveling employee.” Id. In Northern Illinois Special Recreation Ass’n v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 113644WC-U, the court upheld the commission finding that the petitioner was a traveling employee at the time of her injury. The petitioner was leaving to do work related duties from her office. She went out to turn her car on to warm it up with the intent of going back in the office to get her coat and other items necessary for her trip. She was injured when she slipped and fell while closing the car door. The court found that the commission’s conclusion that the petitioner was a traveling employee at the time of her slip and fall was not against the manifest weight of the evidence. In Johnson Contracting Co. v. Illinois Workers’ Compensation Comm’n, 2013 IL App (3d) 120195WC-U, the court upheld the commission’s finding that the petitioner sustained accidental injuries when he fell from his work vehicle while the vehicle was parked in the petitioner’s personal driveway. The evidence presented was sufficient to support a finding that the petitioner fell within the definition of a traveling employee. The employer contended that the petitioner was removing work materials from his work van with the intent to store them at his home, violating company and union policy. The employer maintained that it could not have anticipated or foreseen the conduct that caused the petitioner’s injuries. The court noted that no written rule was submitted into evidence at arbitration. The petitioner was not disciplined for his actions. There was testimony that the petitioner and his conduct was consistent in the trade. The tests for determining whether an injury to a traveling employee arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged and whether the conduct might normally be anticipated or foreseen by the employer. The court found that the commission could reasonably conclude from the evidence in the record that the petitioner was a traveling employee and was therefore entitled to compensation.

J. Independent Contractors

In Labuz v. Illinois Workers’ Compensation Comm’n, 2012 IL App (1st) 113007WC, both the petitioner and the employer appealed the circuit court’s decision, which awarded the petitioner certain benefits for his injuries. The petitioner testified that he worked as a truck driver for JKC Trucking Co., Inc. He stated that he had to watch a training video and submit to a drug test for his employment, but that he did not receive any benefits from the company. A month after he began his work, the petitioner signed a document indicating that he was an independent contractor, but he testified that he did not understand what the document said (the document was in English and he spoke Polish) and only signed it because he knew he had to in order to

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continue his work. The petitioner did not own his own truck, and only drove trucks bearing JKC’s logos. He had to report his movements to JKC and request authorizations for repairs, and JKC would sometimes instruct him which routes to take. Another witness, an employee of a company who leased workers to JKC, testified that the petitioner was an independent contractor. He testified regarding the differences between JKC employees and independent contractors, including how the equipment was used, how they were paid and how they were instructed. The arbitrator found that the petitioner was an employee of JKC, relying on the control that JKC had over the petitioner and the use of JKC’s equipment. The arbitrator noted the contract signed by the petitioner, but found that the signature was invalid as the petitioner did not understand English. The arbitrator awarded benefits, but denied any penalties against JKC. Both the petitioner and JKC sought review of the decision, and the commission unanimously affirmed. The circuit court then affirmed the commission’s decision. The appellate court first looked at a jurisdictional issue raised by JKC, where JKC argued that the circuit court should have dismissed the petitioner’s petition for review as he failed to effect proper service. JKC contended that section 19(f) of the act required service on a particular commission member, not the commission generally. The court disagreed, finding that the purpose of the statute is to timely and adequately notify the commission of the proceedings, and that this is no less accomplished if the commission receives notice as an entity rather than an individual member. The court also found that there was enough evidence to support the commission’s decision that the petitioner was an employee of JKC. The court also reviewed the petitioner’s contention that penalties should have been enforced against JKC. The court found that there were reasonable arguments for JKC’s position that the petitioner was an independent contractor, and affirmed the commission’s decision denying penalties. The court remanded the issue of petitioner’s weekly wage, as the petitioner did not work continuously the year from which the calculations were made, so it was improper to divide his yearly wage by 52 week

K. Accident

In Fisher v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 121261WC-U, the appellate court affirmed the commission’s finding that the petitioner failed to prove that the petitioner’s decedent was exposed to a harmful level of Freon arising out of and in the course of the decedent’s employment. The court found that the factual evidence presented at the arbitration hearing was sufficient to support the commission’s determination that the decedent’s death was not causally related to exposure to Freon. The American Conference of Governmental Industrial Hygienist has determined that the safe exposure level for Freon is 1000 parts per million. In this case, test results showed, at most, a Freon exposure of 15 parts per million. Medical testimony established that if the decedent was exposed to Freon at 15 parts per million, it would not be a factor in his sudden cardiac death and would not aggravate any pre-existing cardiovascular

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disease. The petitioner did not present any evidence establishing the decedent’s exposure to a claimed harmful level of Freon. The court found that the commission’s denial of compensation was not against the manifest weight of the evidence. In Smeltz v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120717WC-U, multiple issues were present before the court. Of main interest is the court’s ruling on accident. The court noted that the petitioner was injured on two separate occasions while she was holding up a mattress and folding a sheet under its corner in order to make a bed. The court agreed with the respondent that the potential for injury associated with the activity was a common risk faced by the general public. The commission found that, because the petitioner was exposed to the risk more frequently than the general public, she faced an increased risk of injury as a result of her employment. The finding was predicated on the determination that the petitioner was required to clean multiple hotel rooms each day. Cleaning the rooms included making king size beds with flat sheets that had to be tucked under the mattress twice in order to form hospital corners. In a specially concurring opinion, Justice Stewart disagreed that the petitioner’s job of making beds was risk neutral. In his view, neutral risks include things like stray bullets, dog bites, lightning strikes and hurricanes. In this case, the petitioner was hired to perform a job and that one of her jobs was to make beds. The petitioner’s injuries did not arise out of the employment because they were subjected to a neutral risk to a greater degree than the general public, rather, they are entitled to compensation because they were injured as a result of a risk distinctly associated with their employment. In other words, the petitioner was injured performing the very tasks she was hired to perform. In Hain v. Illinois Workers’ Compensation Comm’n, 2013 IL App (2d) 120074WC-U, the petitioner sustained a compensable work accident, however, the question of whether a cervical spine condition was related to the work accident was in dispute. The court upheld the commission’s findings that the cervical condition of ill-being was not causally related to his work accident. The petitioner was injured on November 17, 2006 when he was installing a gas tank in a vehicle that fell on top of him. He testified that he immediately felt symptoms in his neck along with other compensable parts of his body. When he first sought medical care, he did not report neck symptoms. He made one report of some pain and stiffness in the lower part of his neck, however, there were no reports of neck symptoms by the petitioner until over six months later. The court found that the commission correctly acted as a fact finder in determining that the passage of time could lead to a denial of the cervical spine condition on a causal connection basis and that such a finding would not be against the manifest weight of the evidence. In Matros v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 113646WC-U, the court affirmed the commission’s finding that the petitioner failed to prove his claimed psychological disability was related to two different shoulder injuries. The court noted that the commission relied on a psychologist’s notes that the petitioner presented unshaven and unkempt and reported having little motivation to do anything and basically laid around the house. Despite those claims, the record showed that the petitioner vacationed for two weeks in Hawaii and took another vacation in Spain. The doctor also reviewed surveillance with regard to appearance and

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behavior and testified that they were inconsistent with how the petitioner presented himself. The doctor opined that the petitioner was malingering and capable of work. Based on the record presented, the court found that the denial of benefits was not against the manifest weight of the evidence. In Worek v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 113277WC-U, the court upheld the commission’s finding that the petitioner failed to establish that he suffered injuries arising out of and in the course of his employment. The commission was entitled to give weight to evidence and determine credibility of witnesses. The commission found that the petitioner had a lack of credibility. He described his prior condition as minor back pain despite lengthy treatment for severe cervical and lumbar pain according to his treating physician. The petitioner had suggested to a co-worker that the co-worker lie concerning the alleged work accident, stating “I am going to need you on this one.” Another co-worker testified that he had told the petitioner a few days before the petitioner’s claimed accident that he had injured his back in a non-work related injury that resulted in a herniated disc and that the petitioner shook his head, smiled and left. The arbitrator and commission thought that the conversation was ”quite suspicious.” Finally, the arbitrator noted that the petitioner’s mannerisms and demeanor while testifying indicated a lack of truthfulness. The court deferred to the commission in making findings of fact and that all of the commission’s finding of fact were not against the manifest weight of the evidence. In Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120549WC-U, the commission concluded that the petitioner’s injuries arose out of her employment. The court found that the commission’s decision was against the manifest weight of the evidence because there was no evidence supporting a reasonable inference that the petitioner’s employment exposed her to a risk not shared by the general public. The petitioner testified that she fell while attempting to change her shoes so that she could go downstairs to answer the doorbell and pick up the mail. The petitioner presented no evidence suggesting that the risks of performing those ordinary activities were somehow heightened by virtue of her employment. The petitioner’s employer was uninsured, therefore the Illinois State Treasurer was involved in the case as custodian of the injured workers’ benefit fund.

L. Causal Connection

In Kawa v. Illinois Workers’ Compensation Comm’n, 2013 IL App (1st) 120469WC-U, although the petitioner had a compensable work accident, the commission found that the petitioner had reached maximum medical improvement and was not entitled to temporary total disability, medical or vocational rehabilitation and maintenance benefits after the MMI finding. The court found the commission’s ruling to be against the manifest weight of the evidence and awarded the petitioner benefits. The court found that the commission’s finding was based on the petitioner’s failure to participate and attend a multi-disciplinary pain program. The petitioner’s failure made it impossible to assess the psychological aspect of his condition of ill-being. The court found that the commission’s finding was against the manifest weight of the evidence because the chain of events leading up to the MMI finding and after clearly established a causal

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nexus between the accident and the petitioner’s various condition of ill-being. The court noted that the record contained no intervening cause that broke the chain of events leading up to the petitioner’s conditions of ill-being at the time of arbitration. The court disagreed with the commission’s finding that the petitioner’s refusal to participate in the pain management program brought all potential benefits to an end. The court specifically noted that the commission found that the refusal to participate in pain management was not an injurious practice. In Illinois School of Health v. Illinois Workers’ Compensation Comm’n, 2012 IL App (1st) 120055WC-U, the court upheld the commission’s finding that the petitioner failed to prove that her right knee condition was causally related to her work accident. At the time of the petitioner’s first medical visit, she did not complain of right knee pain. She was not in distress. She did have a calf injury. Two days later, she reported that her knee gave out. She gave histories to later treaters that her patella dislodged and was positioned laterally over the right knee following her work accident and that she experienced severe pain and swelling of her entire right knee following the work accident. The court found that the commission had authority to resolve factual disputes and that the determination that the petitioner was not credible and did not have a causally related knee injury was not against the manifest weight of the evidence.

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Daniel R. Simmons

- Partner

Dan concentrates his practice in the areas of workers' compensation and general insurance defense, including auto liability, premises liability and third-party defense of employers. Since graduation from law school in 1984, he has spent his entire legal career at Heyl Royster in the Springfield office. He became a partner in 1996. Dan has extensive litigation experience. He has taken numerous cases to jury verdict both in state and federal courts. Additionally, he has arbitrated hundreds of workers' compensation claims before the Illinois Workers' Compensation Commission. Dan appreciates that his clients' goal is to conclude claims in the most efficient, economical means possible and strives to achieve that goal through motion practice, settlement or trial. Dan is a frequent author and lecturer on civil liability and workers' compensation issues. His speaking is both to clients and to Illinois attorneys for continuing legal education. Dan continues to provide writing and speaking services to the Property Loss Research Bureau/Liability Insurance Research Bureau's annual conference that is routinely attended by over 2,500 senior claims professionals from around the United States. Dan is a past president and program director of the Lincoln-Douglas American Inn of Court. The Inn is designed to promote legal education, civility and collegiality among members of the bar.

Professional Recognition Martindale-Hubbell AV Rated

Professional Associations Lincoln-Douglas American Inn of Court (past

president and program director) Illinois State Bar Association Sangamon County Bar Association Central Illinois Claims Adjusters' Association


Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor, University of Iowa, 1984 Bachelor of Arts (Magna Cum Laude) - Political

Science, Speech and Humanities, Augustana College, 1981


Documents

Heyl, Royster, Voelker & Allen 28th Annual Claims Handling ... 2013/Heyl Royster - Workers... · May 22, 2013 IN RE: 28th Annual Claims Handling Seminar Dear Seminar Attendee: On