28th Annual Claims Handling Seminar

Transcription

Peoria
Heyl, Royster, Voelker & Allen
28th Annual
Claims Handling Seminar
Suite 600
Chase Building
124 S.W. Adams Street
Peoria, IL 61602
309.676.0400
Springfield
3731 Wabash Ave.
PO Box 9678
Springfield, IL 62791
217.522.8822
Urbana
Suite 300
102 E. Main Street
PO Box 129
Urbana, IL 61803
217.344.0060
Rockford
2nd Floor, PNC Bank Building
120 West State St.
PO Box 1288
Rockford, IL 61105
815.963.4454
Edwardsville
Suite 100, Mark Twain Plaza III
105 West Vandalia Street
PO Box 467
Edwardsville, IL 62025
618.656.4646
Chicago
Workers’ Compensation
Suite 1203, 19 S. LaSalle Street
Chicago, IL 60603
312.853.8700
Wednesday, May 22, 2013
Bloomington, Illinois
© 2013 Heyl, Royster, Voelker & Allen
heylroyster.com
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
gnelson@heylroyster.com
Workers’ Compensation Agenda
Stay One Step Ahead
Wednesday, May 22, 2013
1:00 - 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
Workers’ Compensation
Attorneys
Peoria
Rockford & Chicago
Attorneys:
Attorneys:
Bradford B. Ingram - bingram@heylroyster.com
Craig S. Young - cyoung@heylroyster.com
James M. Voelker - jvoelker@heylroyster.com
James J. Manning - jmanning@heylroyster.com
Stacie L. Hansen - shansen@heylroyster.com
Vincent M. Boyle - vboyle@heylroyster.com
Kevin J. Luther - kluther@heylroyster.com
Brad A. Antonacci - bantonacci@heylroyster.com
Lynsey A. Welch - lwelch@heylroyster.com
Dana J. Hughes - dhughes@heylroyster.com
Kelly A. Cordes - kcordes@heylroyster.com
Dockets Covered:
Dockets Covered:
Chicago • Geneva • Ottawa
Rockford • Waukegan • Wheaton
Woodstock • Rock Island
Bloomington • Peoria • Rock Island
Springfield
Edwardsville
Attorneys:
Gary L. Borah - gborah@heylroyster.com
Daniel R. Simmons - dsimmons@heylroyster.com
John O. Langfelder - jlangfelder@heylroyster.com
Brett E. Siegel - bsiegel@heylroyster.com
Attorneys:
Dockets Covered:
Collinsville
Toney J. Tomaso - ttomaso@heylroyster.com
James A. Telthorst - jtelthorst@heylroyster.com
Dockets Covered:
Quincy • Springfield
State of Missouri
Urbana
Attorney:
Attorneys:
Bruce L. Bonds - bbonds@heylroyster.com
John D. Flodstrom - jflodstrom@heylroyster.com
Bradford J. Peterson - bpeterson@heylroyster.com
Toney J. Tomaso - ttomaso@heylroyster.com
Jay E. Znaniecki - jznaniecki@heylroyster.com
Joseph K. Guyette - jguyette@heylroyster.com
James A.Telthorst - jtelthorst@heylroyster.com
Appellate:
Brad A. Elward - belward@heylroyster.com
Dockets Covered: Statewide
Dockets Covered:
Herrin • Joliet • Mt. Vernon • Urbana
Peoria
Springfield
Urbana
Rockford
Edwardsville
Chicago
Suite 600
124 SW Adams St.
Peoria, IL 61602
309.676.0400
3731 Wabash Ave.
PO Box 9678
Springfield, IL 62791
217.522.8822
102 E. Main St.
Suite 300
PO Box 129
Urbana, IL 61803
217.344.0060
Second Floor
120 W. State St.
PO Box 1288
Rockford, IL 61105
815.963.4454
Mark Twain Plaza III
Suite 100
105 W. Vandalia St.
PO Box 467
Edwardsville, IL 62025
618.656.4646
Suite 1203
19 S. LaSalle Street
Chicago, IL 60603
312.853.8700
www.heylroyster.com
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
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.
WELCOME & INTRODUCTIONS Presented and Prepared by:
Craig S. Young
cyoung@heylroyster.com
Peoria, Illinois • 309.676.0400
PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE • CHICAGO
A-1
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.
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)
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.
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)
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.
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
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Learn more about our speakers at www.heylroyster.com
EVALUATING IMPAIRMENT USING AMA GUIDES 6TH EDITION Presented and Prepared by:
Dr. Stephen Weiss
PMRI
B-1
B-2
B-3
B-4
REDUCING PERMANENCY EXPOSURE USING AMA RATINGS Presented and Prepared by:
Craig S. Young
cyoung@heylroyster.com
C-1
REDUCING PERMANENCY EXPOSURE USING AMA RATINGS
I.
INTRODUCTION........................................................................................................................................... C-3
II.
WORKERS’ COMPENSATION COMMISSION INTERPRETATION
OF AMA STATUTE ....................................................................................................................................... C-4
A.
B.
C.
D.
III.
PRACTICAL LESSONS LEARNED............................................................................................................. C-6
A.
B.
C.
D.
E.
F.
IV.
The Occupation of the Injured Employee .......................................................................... C-4
The Age of the Employee at the Time of the Injury ........................................................ C-5
The Employees Future Earning Capacity ............................................................................. C-5
Evidence of Disability Corroborated by the Treating
Medical Records ........................................................................................................................... C-5
Is an AMA Rating Needed in Every Case? ......................................................................... C-6
Who Should Perform the AMA Rating? ............................................................................... C-6
Are the Other Four Factors Important? ............................................................................... C-7
Pro se Strategies ........................................................................................................................... C-7
Pretrial Strategies ......................................................................................................................... C-8
Trial Strategies ............................................................................................................................... C-8
CONCLUSION ............................................................................................................................................... C-9
C-2
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
C-4
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 “QDex” 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
C-5
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
C-6
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.
C-8
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.
C-9
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.
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)
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.
as Leading Lawyers.
 Peoria County Bar Association 2008
Distinguished Community Service Award
 Peoria County Bar Association (Second Vice
President; Chair, Professional Standards
Committee; Vice Chair, Budget Committee)
 Defense Research Institute (Chair, National
Workers' Compensation Committee)
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
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.
Court Admissions
Illinois
Education
 Bachelor of Arts-History (Summa Cum Laude),
Bradley University, 1982
C-10
APPEAL ME! MEANINGFUL CHANGE WILL REQUIRE APPELLATE REVIEW Presented and Prepared by:
Brad A. Elward
belward@heylroyster.com
D-1
APPEAL ME! MEANINGFUL CHANGE WILL REQUIRE APPELLATE REVIEW
I.
2013-2014 WATERSHED YEAR ............................................................................................................... D-3
II.
SIGNIFICANT PROVISIONS RIPE FOR APPEAL ................................................................................. D-3
A.
B.
C.
D.
E.
III.
Utilization Reviews, 820 ILCS 305/8.7 ................................................................................... D-4
Codification of “Accident,” 820 ILCS 305/1(d)................................................................... D-6
AMA Ratings, 820 ILCS 305/8.1b  Determination of
Permanent Partial Disability .................................................................................................... D-6
Carpal Tunnel Syndrome, 820 ILCS 305/8(e)(9) ................................................................ D-7
Intoxication, 820 ILCS 305/11 .................................................................................................. D-7
CASE STUDY: CONSIDERATIONS IN LOOKING FOR “THE PERFECT”
AMA RATING CASE..................................................................................................................................... D-9
A.
B.
The Statute, 820 ILCS 305/8.1b  Determination of Permanent
Partial Disability ........................................................................................................................... D-9
Keys Aspects for Consideration Regarding Section 8.1b ............................................D-10
1.
2.
IV.
WHAT, THEN, IS THE IDEAL CASE FOR APPEAL?  SOME THOUGHTS ..............................D-11
A.
B.
C.
V.
The definition of “shall.” ...........................................................................................D-10
Application of the remaining factors. ..................................................................D-11
Example 1 .....................................................................................................................................D-11
Example 2 ......................................................................................................................................D-12
Other Thoughts...........................................................................................................................D-12
CONCLUSION – PREPARATION FOR APPEAL BEGINS AT TRIAL .............................................D-12
D-2
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.
D-3
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
D-4
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
D-5
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.”


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
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
D-6
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
(i)
(ii)
(iii)
(iv)
(v)
The reported level of impairment pursuant to subsection (a);
The occupation of the injured employee;
The age of the employee at the time of the injury;
The employee’s future earning capacity; and
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.


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
D-7
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
D-8
(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.



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
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
D-9
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
(i)
(ii)
(iii)
(iv)
(v)
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
D-10
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)
(ii)
(iii)
(iv)
(v)
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:


IV.
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.
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.
D-11
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
D-12
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.
D-13
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.

"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)
 Named to the Illinois Super Lawyers list (20082013). 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.
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.
 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)
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.
Court Admissions
 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
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)
D-14
SO FAR SO GOOD – AMA DECISIONS AND PRO SE CONTRACT RESULTS Presented and Prepared by:
Toney J. Tomaso
ttomaso@heylroyster.com
Urbana & Edwardsville, Illinois • 217.344.0060
Joseph K. Guyette
jguyette@heylroyster.com
Urbana, Illinois • 217.344.0060
E-1
SO FAR SO GOOD – AMA DECISIONS AND PRO SE CONTRACT RESULTS
I.
INTRODUCTION............................................................................................................................................ E-3
II.
CASE ILLUSTRATIONS................................................................................................................................. E-4
III.
CONCLUSION ............................................................................................................................................. E-13
E-2
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.
2.
3.
4.
5.
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.
Occupation: The arbitrator noted that the petitioner was still employed as a truck driver
following his treatment.
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.
Future earning capacity: No evidence of the diminished future earning capacity.
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.
2.
3.
4.
5.
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.
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.
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.
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.
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.
1.
2.
3.
4.
5.
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.
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.”
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.”
Future earning capacity: There was no evidence of diminished future earning capacity,
so the arbitrator did not place any weight on that factor.
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.
2.
3.
4.
5.
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).
Occupation: The arbitrator noted the petitioner was still employed in the same position
that he enjoyed before the accident date in question.
Age: The arbitrator asked for the petitioner’s date of birth and took into consideration
the fact petitioner is 43 years of age.
Future earning capacity: There was no evidence submitted by the petitioner which
would lay a proper foundation regarding diminished future earning capacity.
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.
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.
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.
1.
2.
3.
4.
5.
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.
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.
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.”
Future earning capacity: No evidence was presented to show a diminishment in the
petitioner’s future earning capacity as a result of this injury.
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.
E-9
1.
2.
3.
4.
5.
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.
Occupation: The arbitrator noted the petitioner returned to his usual employment.
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.
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.
1.
2.
3.
4.
5.
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.
Occupation: The arbitrator noted the petitioner returned to his regular job as a
driver/sales representative.
but did not indicate that it affected the permanency award.
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.
1.
2.
3.
4.
5.
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.
Occupation: The petitioner returned to his regular job.
but did not indicate how this impacted the permanency award.
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.
1.
2.
3.
4.
5.
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.
Occupation: The petitioner returned to her regular position.
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.”
Future earning capacity: The arbitrator found the petitioner’s future earning capacity
was “relatively undiminished as a result of the injuries.”
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.
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.
3.
4.
5.
Occupation: The petitioner returned to his regular position as a building superintendent
for the bank.
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.
Future earning capacity: The petitioner did not present any evidence of diminished
future earning capacity.
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
 Champaign County Bar Association
 Will County Bar Association
 Illinois Trial Lawyers Association
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.
Court Admissions
Illinois
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.
Education
 Juris Doctor, Louisiana State University, 1995
 Bachelor of Arts (Golden Key Honor Society),
University of Illinois, 1992
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)
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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.
 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.
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.
Court Admissions
Illinois
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.
Education
 Bachelor of Science-Environmental Science,
Bowling Green State University, 2001
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)
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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
bbonds@heylroyster.com
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.
B.
Appointments ................................................................................................................................ G-6
News from the Venues ............................................................................................................... G-6
1.
2.
3.
4.
III.
19(b) Hearings ................................................................................................................ G-6
Venue Procedures: ........................................................................................................ G-6
Pro se Settlements ........................................................................................................ G-7
General Observation About Downstate Venues................................................ G-7
UTILIZATION REVIEW: POTENTIAL PITFALLS .................................................................................... G-7
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
Which Guidelines Must Be Used to Evaluate Treatment?............................................. G-7
Cooperation with Utilization Review .................................................................................... G-8
Is a Utilization Review Required Before Treatment May Be Denied? ....................... G-8
Burden of Proof: Section 8.7(4) ............................................................................................... G-9
Depositions..................................................................................................................................... G-9
Penalties........................................................................................................................................... G-9
Utilization Review Appeals ....................................................................................................... G-9
Must All Utilization Review Functions Be Performed
within the State of Illinois? ....................................................................................................G-10
Can I Obtain a Utilization Review and a Section 12 IME? ...........................................G-10
Is the Utilization Review Determination Dispositive? ...................................................G-10
Beware of Petitioner’s Counsel Laying in the Weeds! ..................................................G-11
Conclusions and Observations Regarding the Use of
Utilization Review From the Trenches ................................................................................G-11
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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)
(2)
(3)
(4)
(5)
The provider network shall include an adequate number of occupational and
non-occupational providers.
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.
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.
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.
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 wcc.infoquestions@illinois.gov, 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 michael.latz@illinois.gov 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.
-
C.
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?”
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.
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E.
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?
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.”
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F.
What does this mean?
Some plaintiffs’ attorneys claim they are entitled to attorney’s fees and expenses for
taking the deposition.
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?
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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.
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I.
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J.
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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.
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.
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
Commerce Workers' Compensation Committee. He
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.
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 industrysponsored 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
 Inducted as a Fellow in the College of Workers'
Compensation Lawyers
as Leading Lawyers.
 Named to the Illinois Super Lawyers list (20122013). 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.
 Illinois State Bar Association (Past Chair
Workers' Compensation Law Section Council)
(Member, Workers' Compensation Committee)
 Defense Research Institute
 Illinois Self-Insurers Association
Court Admissions
Illinois
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
shansen@heylroyster.com
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MAKING CANDID CAMERA WORK: YOU HAVE THE GOODS ON
THE PETITIONER, HOW DO WE GET IT INTO EVIDENCE?
I.
AUTHENTICATION ...................................................................................................................................... H-3
A.
B.
II.
Proving the Evidence Accurately Reflects What Appeared on the Site ................... H-3
Proving the Evidence Is Attributable to a Certain Person............................................. H-5
RELEVANCE.................................................................................................................................................... H-8
A.
B.
C.
Addressing Relevance Issues Prior to Trial ......................................................................... H-8
Relevance Issues to Overcome for Trial Admissibility .................................................... H-8
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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MAKING CANDID CAMERA WORK: YOU HAVE THE GOODS ON
THE PETITIONER, HOW DO WE GET IT INTO EVIDENCE?
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
H-5
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
H-6
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.
H-7
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
H-8
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).
H-9
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
H-10
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.
H-11
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.





“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)
 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.
 Peoria County Bar Association (Young Lawyers
Committee; Chair, Membership Committee)
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)
Court Admissions
Illinois
Education
 Juris Doctor (Honors), Drake University Law
School, 2006
 Bachelor of Science-Business, Miami University,
2003
Public Speaking
 “Kids Say the Darndest Things”—Effective
Claims Investigation Using Social Media”
Heyl Royster Workers’ Compensation Claims
Handling Seminar (2012)
H-12
I WANT A DIVORCE! CAN I OBTAIN A RESIGNATION WHEN THE WORK COMP CASE IS SETTLED Presented and Prepared by:
Kevin J. Luther
kluther@heylroyster.com
Rockford & Chicago, Illinois • 815.963.4454
I-1
I WANT A DIVORCE! CAN I OBTAIN A RESIGNATION
WHEN THE WORK COMP CASE IS SETTLED
I.
I WANT A DIVORCE! CAN I OBTAIN A RESIGNATION WHEN THE
WORK COMP CASE IS SETTLED? ............................................................................................................. I-4
A.
B.
II.
RETALIATORY DISCHARGE ........................................................................................................................ I-4
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
III.
Statutory Remedy .......................................................................................................................... I-4
Civil Remedy .................................................................................................................................... I-4
When Can an Employee Be Terminated? – An Employer Cannot
Fire an Employee for Filing a Claim for Workers’ Compensation ............................... I-5
Terminate an Employee Before a Workers’ Compensation
Claim is Filed .................................................................................................................................... I-5
Terminate an Employee Because a Claim for Workers’ Compensation
was Filed Against a Prior Employer ......................................................................................... I-5
An Employer Can Terminate a Petitioner for Legitimate
Other Reasons ................................................................................................................................. I-6
Other Reasons – Poor Job Performance ............................................................................... I-6
Other Reasons – Employee Misconduct................................................................................ I-6
Other Reasons – Inability to Return to Work After Injury ............................................... I-6
Other Reasons – Failure to Return to Work After Being
Medically Cleared ........................................................................................................................... I-7
Failure to Return to Work After Employer’s IME ................................................................ I-7
Other Reasons – Fraudulent Claim .......................................................................................... I-8
The Stated Reason for Discharge Must Be Genuine ......................................................... I-8
RETALIATORY DEMOTION OR CONSTRUCTIVE DISCHARGE.....................................................I-10
A.
IV.
Wrongful Discharge Liability ...................................................................................................... I-4
Employment-at-Will Doctrine ................................................................................................... I-4
No Cause of Action for Retaliatory Demotion ..................................................................I-10
PROCEDURES FOR DISCHARGING A PETITIONER ..........................................................................I-10
I-2
V.
PROCEDURES FOR DISCHARGING A PETITIONER ..........................................................................I-12
A.
B.
VI.
Discharge Procedures.................................................................................................................I-12
Caution: Considerations Before Discharging .....................................................................I-12
DEFAMATION ...............................................................................................................................................I-13
I-3
I WANT A DIVORCE! CAN I OBTAIN A RESIGNATION
WHEN THE WORK COMP CASE IS SETTLED
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,
I-4
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).
I-5
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.
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.
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
I-6
give the disabled employee special rights which must be considered when discharge is
contemplated.
J.
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).
I-7
L.
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
I-8
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)
I-9
●
III.
Receiving one wage garnishment
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:
I-10
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.
I-11
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.
I-12
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.
I-13
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.
I-14
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.
I-15
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.
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)
 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.
 Winnebago County Bar Association
 State Bar of Wisconsin
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.
Court Admissions
 State Courts of Illinois and Wisconsin
 United States District Court, Northern and Central
Districts of Illinois
Education
 Juris Doctor, Washington University School of
Law, 1984
 Bachelor of Arts-Economics and Mathematics
(Summa Cum Laude), Blackburn University,
1981
I-16
WHAT NOW?: CASE LAW UPDATE Presented and Prepared by:
Daniel R. Simmons
dsimmons@heylroyster.com
Springfield, Illinois • 217.522.8822
J-1
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
J-2
K.
II.
Treater v. IME ................................................................................................................................ J-16
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
J-3
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
J-4
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.
2.
Intentionally present or cause to be presented any false or fraudulent
claim for the payment of any worker’s compensation benefit.
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.
J-5
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 subjectmatter 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 filestamped 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)
121219WCU, 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 oddlot 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 illbeing 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 VentureNewberg 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
J-29
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
J-30
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
J-31
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.
J-32
Daniel R. Simmons
- Partner
Dan concentrates his practice in the areas of workers'
compensation and general insurance defense,
including auto liability, premises liability and thirdparty 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.
 Lincoln-Douglas American Inn of Court (past
president and program director)
 Sangamon County Bar Association
 Central Illinois Claims Adjusters' Association
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.
Court Admissions
Illinois
Education
 Juris Doctor, University of Iowa, 1984
 Bachelor of Arts (Magna Cum Laude) - Political
Science, Speech and Humanities, Augustana
College, 1981
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.
J-33

28th Annual Claims Handling Seminar

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