Review of Illinois Workers Compensation OCTOBER 2013

Transcription

1 Review of Illinois Workers Compensation OCTOBER 2013 contents BEFORE THE ILLINOIS WORKERS COMPENSATION Personnel Changes at the Commission Level Personnel Changes at the Arbitration Level Medical Fee Schedule Rate Changes TTD and PPD Rate Updates BEFORE THE ILLINOIS LEGISLATURE STATUTORY CHANGES Court Rules That the Mailbox Rule Applies When a Party Seeks Judicial Review of a Workers Compensation Commission Decision in the Circuit Court. IN THE APPELLATE COURT OF ILLINOIS, WORKERS COMPENSATION COMMISSION DIVISION Court Reverses Commission s Denial of Compensation for Traveling Employee Who Fell in His Home Driveway. Court Upholds Commission s Award of Wage Differential Benefits and Rejects Evidence of Claimant s Increased Future Earnings. Court Rejects Claimant s Argument That Overtime Hours Should Be Included in the Wage Differential. Petitioner Sustains Two Back Injuries Working for Two Different Employers. Court Affirms That Second Accident Was an Intervening Accident. Court Rejects Denial of PPD for the First Accident. Repetitive Trauma Claim Insurer Denied the Right to Intervene Despite Claimant s Modification of Accident Date from May 12, 2009 to October 14, Appeal Dismissed. Neck Injury Sustained By Caregiver Allegedly Helping Patient in Assisted Care Facility Found Compensable. Court Refuses to Reverse Commission. Court Awards Benefits to Police Officer Who Claims Mental Injury After Being Threatened With a Toy Gun Commission Decision Reversed. Appellate Court Reverses Denial of TTD and Medical in Favor of Claimant Who Was Involved in Motor Vehicle Accident, But Refused Medical Treatment at Rehabilitation Institute of Chicago. PERMANENT IMPAIRMENT RATINGS AND PPD WHAT IS THE COMMISSION GOING TO DO? WHAT SHOULD EMPLOYERS DO? GREAT DECISIONS AROUND THE OFFICE NEW ATTORNEYS IN OUR OFFICE CONCLUSION PERSONAL Some changes in personnel at the Illinois Workers Compensation Commission are promising. A new Chairman and a new Commissioner are welcome. Downstate Arbitration reassignments will occur in the near future and you may need a major league scorecard to figure out who is going where and the new assignment means to your case. Maximum Rates are going up again they really need to be capped. Changes in the makeup of the Workers Compensation Commission Division of the Appellate Court have resulted in less than favorable rulings. There is one Appellate Justice from each of the five Appellate Districts in the state. The justices serve on the WC Division on a voluntary basis. Somehow we need to encourage more conservation volunteers to apply. Contact Information Michael E. Rusin merusin@rusinlaw.com 10 S. Riverside Plaza Suite 1530 Chicago, IL

2 REVIEW OF ILLINOIS WORKERS COMPENSATION October, 2013 By Michael E. Rusin BEFORE THE ILLINOIS WORKERS COMPENSATION COMMISSION Personnel Changes at the Commission Level The Commission has been working with a short staff for quite some time. At the end of March, 2013, Governor Quinn terminated Chairman Mitchell Weisz and Public Commissioner Yolaine Dauphin. This was a positive move for employers. Chairman Weisz spent his entire career as a petitioner s attorney. He did not enact any policies or procedures which favored employers or even balanced the system. Similarly, the decision to not reappoint Commissioner Dauphin is also a good move for employers. She was the most petitioner oriented public member of the Commission. Panel B that she served on including Commissioners DeVriendt and White was the most petitioner oriented Panel at the Commission. That Panel reversed more favorable decisions than either of the other two Panels. The Public Commissioner from Panel C, Attorney Michael Latz was appointed by the Governor as Chairman of the Commission. The end result of these actions created significant delays. Neither Panel B nor Panel C of the Commission could really function because neither had a public representative. Commissioner Donohoo was pressed on several occasions into triple duty but this really wasn t fair. Currently, the three Panels at the Commission are listed below. Commissioners by Panel Panel A Panel B Panel C Employee Representatives Thomas Tyrrell Charles DeVriendt David Gore Public Representatives Daniel Donohoo Vacant Vacant Employer Representatives Kevin Lamborn Ruth White Mario Basurto New Appointments - On August 9, 2013, Governor Quinn appointed one new public Commissioner. He appointed Attorney Michael Brennan as a Commissioner. He will likely be assigned one of the public Commissioner spots on either Panel B or C. Attorney Michael Brennan is a double graduate of DePaul University where he received a Bachelor of Arts Degree and also a Juris Doctorate from DePaul University College of Law. He is an extremely experienced attorney having been admitted to practice since His term will expire in January, He was most recently associated with the law firm of Adelson, Testan, Brundo, Novell & Jimenez, a California workers compensation defense firm. Prior to that, Attorney Brennan spent most of his career (almost 20 years) working for the venerable but now defunct workers compensation defense firm of Kane, Doy & Harrington. 1

3 Commissioner Brennan s appointment is pending approval by the Illinois State Senate. It is somewhat odd that despite two vacancies at the Illinois Workers' Compensation Commission, Governor Quinn chose only to appoint one Commissioner. The appointment of Commissioner Latz to serve as Chairman is a good one. He has demonstrated that he is fair minded and much more likely to impose rules that are fair to both parties. Similarly, the appointment of Attorney Brennan appears to be a good one. He is knowledgeable, experienced and even minded. Governor Quinn still needs to appoint one more Public Commissioner. No other changes are expected at the Commission in the near future as all other Commissioners terms don t end until January, 2015 or January, By that time we may have a new Governor. Personnel Changes - At the Arbitration Level The changes in the Workers' Compensation Act in 2011 drastically changed the arbitrators position. Arbitrators no longer are given lifetime appointments. Instead, their appointments are only for three years. Further, any appointments had to be confirmed by the Senate. Moreover, the new Act required the Commission to assign no fewer than three arbitrators to each hearing site. Also, no arbitrator was to hear cases in any county for more than two years in every three year term. Since the new statute has been in effect for more than two years, all the downstate arbitrators are going to have to be reassigned by the end of the year. No reassignments have been published yet, but we certainly expect some significant changes in arbitration assignments. Recently, Governor Quinn reappointed 12 existing arbitrators whose terms were expiring and he appointed three new arbitrators. The currently sitting arbitrators who terms have been extended three more years are William Gallagher, Carolyn Doherty, Joshua Luskin, Robert Williams, Barbara Flores, Deborah Simpson, Brian Cronin, Curt Carlson, Gregory Dollison, Edward Lee, Molly Mason and Douglas McCarthy. The three new arbitrators that have been appointed include Molly Dearing, Jeff Huebsch and Ketki Steffen. All the new appointments are attorneys. Molly Dearing is a downstate attorney. She attended the University of Illinois for her undergraduate work and Southern Illinois University Law School. She is a younger lawyer at 31 years old having been admitted to the Illinois Bar in She most recently has been working defending workers compensation claims made against the State of Illinois for the Illinois Attorney General in Carbondale, Illinois. Ketki Steffen is a more experienced attorney. She was admitted to the Illinois Bar in 1991 and worked for over 18 years at the Cook County State s Attorney s Office. She 2

4 worked briefly as a Circuit Court Judge from 2010 to Most recently, she has been in private practice in Elgin, Illinois. Attorney Jeff Huebsch is the most experienced of the three new arbitrators. He is 55 years old and was admitted to practice in He worked defending claims on behalf of the law firm of Power & Cronin for many years. He has extensive experience representing employers especially municipal employers. All three of these new arbitrators will need to be approved by the Senate. Governor Quinn has not terminated any other existing arbitrators. I do expect the Commission to publish new calendars and make reassignments in the downstate venues once the new arbitrators have been confirmed by the Senate. Medical Fee Schedule Rate Changes The Commission has published changes to the medical fee schedule. The medical fee schedule rates will increase by 1.52% on January 1, Attached please find a schedule listing the annual adjustments to the fee schedule since it was put into effect February 1, This table is published by the Commission. It is really fortunate that we had a 30% reduction in 2011 or else this fee schedule would be useless in holding fees in check. Annual Adjustments Effective date CPI-Medical CPI-U / IL fee schedule Annual Difference February 1, % 4.90% 0.53% January 1, % 3.80% -0.46% January 1, % 1.97% -2.55% January 1, % 5.37% 2.11% January 1, % -1.48% -4.79% January 1, % 1.01% -0.02% September 1, 2011* % % January 1, % 3.77% 0.58% January 1, % 1.69% -2.36% January 1, % 1.52% -0.82% Cumulative 30.33% -7.45% % *Effective 9/1/11, pursuant to HB1698, all fees were reduced by 30%. Section 8.2(a) of the Illinois Workers' Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year. 3

5 TTD and PPD RATE UPDATES Attached please find a current rate table listing the newest TTD and PPD maximums. Please note that this state s average weekly wage increased again effective July 15, The new state average weekly wage is $ This raises the maximum TTD rate to $1, It increases the minimum permanent total disability and death rate to $ The new PPD maximum effective 7/1/13 will be announced in December, Please make sure to keep the minimum and maximum rates in mind when paying benefits. Minimum benefits rates have not changed since the state s minimum wage has not changed. However, Governor Quinn has proposed that the State of Illinois increase its minimum wage to $10.00 an hour. This would make Illinois minimum wage the highest in the nation. It truly appears that Governor Quinn really works hard on coming up with as many ideas as he can to penalize Illinois employers and drive even more employers out of state. BEFORE THE ILLINOIS LEGISLATURE STATUTORY CHANGES On June 28, 2013, Governor Quinn signed House Bill 3390 making changes to the Illinois Workers' Compensation Act. The changes are fairly minor. One has to wonder what prompted the Legislature to go through the trouble of enacting it. First, the legislation amends section 9 of the Workers' Compensation Act to provide as follows: Prior to approval of any pro se settlement contract lump sum petition, the Commission or an arbitrator thereof shall determine if the un-represented employee, if present, is able to read and communicate in English. If not, it shall be the responsibility of the Commission to provide a qualified, independent interpreter at the time such petition is heard, unless the employee has provided his or her own interpreter. As an employer attorney, we have always investigated whether or not a claimant is able to read and speak English prior to lump sum settlement contract approval. We have always arranged for an interpreter or arranged for the petitioner to have an interpreter. We are no longer obligated to do this. It is now the statutory responsibility of the Commission to provide an interpreter for all pro se petitioners. Second, the new law amends section 19 of the Act with respect to filing appeals from the Commission to the Circuit Court. The new Act requires that the party filing the appeal file a Notice of the Intent to File for Review in Circuit Court. This change in the statute replaces the prior requirement that the parties obtain a certified receipt showing that the probable cost of the record has been paid to the Commission. It eliminates a $35.00 filing fee. This change applies to all Commission decisions entered after June 28, A new form IC-25 has been created and is posted on the Commission s website. This document must be filed prior to the filing of a Circuit Court appeal. 4

6 IN THE SUPREME COURT OF ILLINOIS Court Rules That the Mailbox Rule Applies When a Party Seeks Judicial Review of a Workers Compensation Commission Decision in the Circuit Court. Mark Gruszeczka v. Illinois Workers' Compensation Commission and Alliance Contractors, Docket No Ill (filed August 1, 2013). This case involves a disputed workers compensation claim filed by petitioner alleging an accident date of July 21, After a trial before an arbitrator, the arbitrator issued a decision in May, 2008 finding that petitioner failed to prove that his sustained an accident and failed to prove causal connection. Petitioner filed an appeal to the Commission. After briefs and argument, the Commission issued a decision affirming the arbitrator s decision denying benefits on April 15, Petitioner s attorney received a copy of the Commission s decision on April 20, The Workers' Compensation Act requires that any appeals be filed in the Circuit Court within 20 days of receipt of the Commission s decision. Petitioner s attorney stated that she mailed the appeal documents to the Circuit Court on May 4, The Circuit Court actually received the documents and file-stamped them on May 14, 2009, 24 days after petitioner s attorney received the Commission s decision. Respondent filed a motion to dismiss the appeal as non-timely. The appeal was late because it was filed 24 days not 20 days after receipt of the Commission decision. The Circuit Judge denied the motion to dismiss the appeal, but nevertheless ruled that the Commission s decision was proper to deny benefits. Petitioner then appealed to the Appellate Court and the Appellate Court dismissed the appeal on the basis of no subject matter jurisdiction. The Appellate Court found that petitioner s appeal was not timely because the appeal was not filed with the Circuit Court within 20 days. Petitioner appealed to the Supreme Court and the Supreme Court reversed in a split decision. The majority ruled that the Mailbox Rule does apply to Illinois Workers' Compensation Commission decisions. The court majority analyzed all of the case law involving appeals from Commission decisions. The court notes that the Mailbox Rule has already been held to apply to appeals from the arbitrator to the Commission and from the Circuit Court to the Appellate Court. In view of that fact, the court concluded that petitioner s Circuit Court appeal was timely and should be considered. Two members of the Supreme Court issued a lengthy dissent requiring parties to get appeals filed timely or else have them dismissed. Comment: Petitioner s attorney has engaged in lengthy litigation in a case which was ruled noncompensable by the arbitrator, the Commission and the Circuit Court. Petitioner appealed to the Supreme Court and the Supreme Court has now held only that the Appellate Court must consider petitioner s appeal as to his denied accident. The 5

7 likelihood of a reversal by the Appellate Court on the issues of accident and causation are remote. Routinely, employers have a very difficult time winning cases over a technical error by claimant s counsel. For some reason, technical errors by claimants counsel rarely seem to result in dismissals. Frankly, the Legislature should modify the appeal time allowed from the Commission decision to Circuit Court appeal. The parties have 30 days to appeal an arbitrator decision to the Commission. However, the parties have only 20 days to appeal a Commission decision in the Circuit Court. The parties have 30 days to appeal a Circuit Court decision to the Appellate Court. There is no reason why the time period to appeal from the Commission to the Circuit Court is so short at only 20 days. Frankly, it is not difficult problem for employees because they do not need to file a bond in the Circuit Court. However, for employers, we are required to file a Bond in the Circuit Court signed by a corporate officer in order to pursue an appeal. For us, the 20 day appeal period is unreasonably short. IN THE APPELLATE COURT OF ILLINOIS, WORKERS COMPENSATION COMMISSION DIVISION Court Reverses Commission s Denial of Compensation for Traveling Employee Who Fell in His Home Driveway. Stanislawa Mlynarczyk v. Illinois Workers' Compensation Commission and Sophie Obrochta d/b/a Janitorial By Sophie 2013 Ill. App (3d) WC, filed May 30, 2013 Respondent operated a home and commercial cleaning service. Petitioner and her husband both worked for the respondent. Respondent provided petitioner s husband with a minivan. The husband would drive petitioner and other employees to various job sites. On December 5, 2007, petitioner and her husband started work at 6:30 a.m. They drove to clean a church in Downers Grove, Illinois and then drove to clean two homes. They finished their work at about 2:30 p.m. and because of cancellations had no further work that day. Respondent offered them a cleaning job at 4:30 p.m. as an extra job. They agreed to perform this job. Petitioner and her husband went home for lunch. They stayed at home for about 90 minutes from 2:30 to 4:00 p.m. At 4:00 p.m., petitioner and her husband left their home and began walking to the car to drive to the next job. As petitioner was walking to the car, she slipped and fell on ice on a public sidewalk leading from the house to the driveway. She suffered a wrist fracture. 6

8 Respondent disputed the claim arguing that petitioner was not a traveling employee and even if she was her accident did not arise out of and in the course of her employment because she was still on private property when her accident occurred. The case was tried before an arbitrator who found the case compensable. Respondent appealed to the Commission and the Commission reversed. The Commission stated Claimant testified that she fell on her personal driveway while walking to a vehicle to go to work. Claimant testified that she did not know if there was ice under the snow on the sidewalk and driveway. The public sidewalk and private driveway were in the same condition as it related to the ice and snow. Claimant was not carrying anything when she fell. She had her purse on her shoulder. The Commission finds that petitioner failed to prove that she was exposed to a risk that was connected or incidental to her employment and therefore fails to prove that the injuries she sustained as a result of her fall on December 5, 2007 arose out of her employment. Petitioner appealed this decision to the Circuit Court and the Circuit Court affirmed the denial. Petitioner appealed to the Appellate Court and the Appellate Court reversed. The Appellate Court found that petitioner was a traveling employee. The court explained A traveling employee is one who is required to travel away from her employer s premises to perform her job. It is not necessary for an individual to be a traveling salesman or a company representative who covers a large geographic area to be considered a traveling employee. In the present case, the claimant did not work at a fixed job site. Rather, her duties required her to travel to various locations throughout the Chicagoland area. As such, we find that she qualifies as a traveling employee. The court then found that petitioner s accident did arise out of and in the course of her employment finding that petitioner s accident did not occur on private property. The court based its ruling primarily on petitioner s testimony that she fell on a public sidewalk leading from the house to the driveway. The court noted that respondent presented no evidence to the contrary. Respondent contended that a traveling employee cannot sustain an accident in the course of employment when they have left the physical confines of his or her home on the way to a job assignment but sustain an accident on private property. However, respondent cited no case law to this effect and the court rejected that argument. Comment: This is an extremely frustrating case to accept from the Appellate Court. It does not appear that the respondent had a good argument that petitioner was not a traveling employee. However, respondent had a great argument that petitioner s accident did not arise out of and in the course of her employment since it does not appear that she left her home premises at the time of the accident. The case apparently hinged on petitioner s testimony that she did not fall on her private driveway, but instead she fell on a public sidewalk between her house and the driveway. It appears respondent did not offer any evidence as to exactly where the accident occurred. However, frankly, it is likely the employer did not know exactly where petitioner fell and was at the mercy of 7

9 petitioner s own self-serving testimony. What is clear is petitioner never exited the driveway of her own home at the time the accident occurred. I could accept this decision if petitioner was carrying equipment back and forth to the car, but she was not. Petitioner was simply walking from her house to her car when she slipped and fell on a natural accumulation of snow and ice. Court Upholds Commission s Award of Wage Differential Benefits and Rejects Evidence of Claimant s Increased Future Earnings. Court Rejects Claimant s Argument That Overtime Hours Should Be Included in the Wage Differential. United Airlines, Inc. v. Workers' Compensation Commission and Richard Young, 2013 Ill. App. (1 st ) WC (filed June 3, 2013). Petitioner was employed by United Airlines as a ramp service worker. He sustained a right wrist injury on December 28, At the time, he was earning $20.66 per hour and he averaged 44 hours a week. He underwent medical treatment and eventually returned to work on April 19, Two days later, on April 21, 2006, he then suffered a right shoulder injury. He underwent treatment for that second injury and eventually was released to return to work July 20, 2007 with permanent restrictions. Because of his permanent restrictions, he could not return to work as a ramp service worker. He was provided with vocational rehabilitation placement assistance. He was placed in February, 2008 back working at United Airlines as a stations operations representative (SOR). He began earning $20.63 per hour. He proved that if he was still working as a ramp service worker he would have been earning $19.81 per hour. However, shortly after his return to work his wages as an SOR were reduced to $9.92 an hour per union scale for a beginning SOR. At the time of trial, he was earning $10.60 an hour and he was eligible for a wage increase to $11.07 an hour within the next few weeks. Per the union contract, there was a ten year progressive pay scale for both positions. Petitioner admitted that he would be at the top pay scale for an SOR in Respondent produced clear and convincing evidence that within the next eight years petitioner s wages as an SOR would increase and that by 2018 he would actually be earning more than he did as a ramp service worker. A dispute existed as to whether or not overtime hours should be included in the calculation. However, evidence showed that because of United Airlines financial distress, overtime hours were drastically reduced. Overtime hours for ramp service workers were only allowed in emergency situations. Petitioner demanded wage differential benefits. The arbitrator agreed and awarded wage differential benefits. However, the arbitrator awarded wage differential benefits only through April 13, 2018 since respondent had proved that petitioner would at that juncture 8

10 be earning more per hour as an SOR than he would have earned as a ramp service worker. At that juncture, petitioner would no longer have any wage loss and no right to wage differential benefits. Petitioner filed an appeal to the Commission and the Commission reversed the arbitrator. The Commission awarded petitioner wage differential benefits at a rate of $ per week commencing April 27, 2009 and continuing for the duration of his disability (essentially lifetime). Respondent appealed to the Circuit Court. On March 20, 2012, the Circuit Court reversed the Commission and reinstated the arbitrator s decision. Petitioner then appealed to the Appellate Court. The Appellate Court reversed the Circuit Court and reinstated the Commission s decision. The Appellate Court ruled that the wage differential statute [Section 8(d)(1)] did not provide for a varying amount to be paid out at various future dates. Rather, the award has to be based on the average amount of the claimant s wages at the time of the accident and the average amount which the claimant is earning or able to earn in some suitable employment after the accident. The court held The statute, under its plain and ordinary language, does not contemplate multiple figures to be computed and awarded at future dates. Therefore, we agree with the Commission s interpretation of section 8(d)(1), that it requires the wage differential to be determined as of the date of the arbitration hearing. The court specifically rejected the concept that the Commission could or should award decreasing wage differential benefits. The court held In our view, under Cassens and Section 8(d)(1), the parties have the ability to present relevant evidence regarding the duration of the claimant s physical and mental disability and the claimant s earning capacity, including factors such as wage increases, overtime, and increased hours of work. However, the award must be calculated as of the date of the arbitration hearing. As Cassens, noted when considering the average wages of the past and present positions and factors beyond wages, awards may be imperfect. (Cassens, 218 Ill.2d at 531). The court concluded that the Commission s determination of the wage differential was correct. The Commission essentially awarded complete wage differential based on what petitioner would have been earning if he was still employed as a ramp service person on the date of trial compared to what he was actually earning as an SOR on the date of trial. The court found the Commission properly rejected overtime hours in the calculation because petitioner failed to prove that he would have been working the overtime hours currently. Comment: The employer did an excellent job here proving that petitioner was not entitled to wage differential benefits for life. He was entitled to decreasing wage differential for several years only. We know that wage differential awards are extremely unfair to employers primarily because they are very difficult to change and they are awarded for life. The employer in this case put petitioner in a position where he had a temporary wage loss, but not a permanent wage loss. Petitioner had the full ability and 9

11 opportunity to increase his wages over the next several years. These were not merit increases. Petitioner would get increases automatically as a result of the union contract. Certainly, a reasonable interpretation of the Workers' Compensation Act should have allowed the Commission and its discretion to award benefits on a sliding scale. There is certainly nothing in the Act which prohibits the Commission from interpreting section 8(d)(1) rationally rather than interpreting it solely based on a snapshot of a claimant s earnings on the date of trial. The evidence clearly supported the arbitrator s decision. It is just a cop out to award a ridiculously high amount because the statute is imperfect. The Legislature amended section 8(d)(1) effective as to accidents on and after September 1, Benefits now for wage differential at least do not last for life. They last only until age 67 or for a maximum of five years from the date of a final award, whichever is later. This modification recognizes the unfairness of the current wage differential statute. The arbitrator clearly did a fair job in analyzing the evidence and coming up with an appropriate award. It merited affirmance by the higher courts. Petitioner Sustains Two Back Injuries Working for Two Different Employers. Court Affirms That Second Accident Was an Intervening Accident. Court Rejects Denial of PPD for the First Accident. National Freight Industries v. Illinois Workers' Compensation Commission and Andrew Smith/Andrew Smith v. Illinois Workers' Compensation Commission and Fischer Lumber, 2013 Ill. App. (5 th ) WC (filed June 13, 2013). This case involves a somewhat complicated and unusual set of facts. Petitioner filed two different claims against two different employers for two different accident dates. There was no question as to the two separate and distinct accidents working for the two different employers. The case became complex primarily because petitioner was scheduled for surgery on his back for his first accident when he suffered a second accident and was prescribed more surgery for his back. Let me summarize. On November 6, 2006, petitioner was employed by Fischer Lumber as a driver. He sustained an undisputed back injury while pulling some boxes off a truck. He received medical treatment, but he did not lose any significant time from work. Thereafter, he continued to work for the employer despite receiving medical treatment until he got laid off. In December, 2006, he had an MRI and it showed some disc abnormalities. Shortly after his layoff, he was then hired by National Freight as a spotter on January 19, He worked as a spotter for six months before he was finally able to begin working a driver. Although he was working full time for National Freight, he continued to seek medical treatment for his back injury from Fischer Lumber. He visited his surgeon, Dr. Kitchens on September 10, 2008 complaining of continued back pain. An MRI was done September 18, 2008 and showed disc abnormalities primarily at the L3-L4 level. Dr. 10

12 Kitchens recommended surgery and petitioner was scheduled for surgery on December 5, He was to have a right-sided L3-L4 discectomy. However, on the day prior to surgery, December 4, 2008, petitioner was involved in a motor vehicle accident while driving for National Freight. After that second accident petitioner claimed his back symptoms were worse. He returned to see Dr. Kitchens. Surgery was cancelled and more diagnostic tests were ordered. He eventually had another MRI done on December 10, Several different doctors reviewed the MRI films. Conflicting opinions were offered, but most of the doctors agreed that the new MRI showed disc abnormalities at L3-L4 and also L4-L5. Eventually, petitioner was prescribed surgery. This time, petitioner was to have a two-level laminectomy and fusion. Multiple doctor depositions were taken. Petitioner filed a request for hearing before the arbitrator pursuant to section 19(b). However, he may not have filed a proper Section 19(b) petition based on statements made by the attorneys at the commencement of the hearing. It is unclear from the record whether the parties intended to litigate the issue of permanent partial disability as part of the hearing. The arbitrator found that petitioner sustained two separate accidents. He found that the second accident was an intervening accident and was the cause of petitioner s current disability. He awarded TTD, medical bills as well as prospective medical treatment against the second respondent. He ordered the second respondent to pay for petitioner s two-level back surgery. With respect to the first case, the arbitrator found that petitioner was not at MMI at the time of his second accident. The arbitrator denied permanent partial disability. Petitioner appealed the denial of PPD. National Freight appealed the decision as to intervening accident and causation. However, the Commission confirmed the arbitrator s ruling and further appeals were taken to the Circuit Court which confirmed the Commission s decision. Appeals were then taken by petitioner and National Freight to the Appellate Court. The Appellate Court affirmed the Commission s decision as to the finding of an intervening accident. The Court found that although petitioner sustained his first accident, was not at MMI and had been prescribed surgery, he clearly had a second accident. The court found that as the result of the second accident he was disabled and he needed more extensive surgery than before. Since the Workers' Compensation Act does not allow for apportionment of medical treatment, the Commission had to award TTD and medical against one or the other respondent. The court ruled there was certainly more than enough evidence in the record to justify the Commission s decision to find the second accident to be responsible for petitioner s current treatment. The Appellate Court vacated the Commission s decision as to the denial of permanent disability in the first case. The court noted that in 19(b) hearings, permanent disability cannot be considered. The court cited several case decisions wherein the court had 11

13 previously ruled that permanent partial disability cannot be assessed in response to a petition for immediate hearing. Therefore, the denial of PPD was improper because PPD should not have been considered anyway. Moreover, the court ruled that even if PPD were to be considered, it should not have been denied in the first case. The court instructed the Commission to assess PPD when petitioner was at MMI for both of his accidents and award PPD appropriately between the two accidents. Comment: This complicated set of facts understandably led to a significant amount of litigation. I have never seen a case before where a claimant has an intervening accident for a second employer the day before he is scheduled for surgery for his first case. Obviously, his first employer benefited from the claimant s misfortune. They were able to avoid liability for the surgery. Many state statutes allow for apportionment between employers in circumstances like this. It would be a fair system, but the Illinois statute does not permit it. The Commission is forced to assign liability to one or the other employer. Based on the evidence, the Appellate Court was in no position to reverse the Commission s decision. Petitioner s treating doctor strongly supported the conclusion that petitioner suffered an intervening accident which worsened his condition. Therefore, the second employer had to be responsible for the continuing TTD and medical treatment. Frankly, I was more intrigued by the court s decision as to PPD. At first, I was annoyed that the court did not simply affirm the denial of PPD, but conceptually, their decision is a correct one. The Commission should properly apportion permanent partial disability between the first and second cases. My concern is always that the Commission will simply double up on the PPD awards because employers are not entitled to credit for prior PPD awards. If in fact the Commission is to award PPD to petitioner, it should only be after petitioner reaches MMI from his second case. At that juncture, a fair apportionment of PPD between the two cases would be appropriate. The Commission should not allow a hearing on PPD while petitioner is still treating for his second accident and then allow another PPD award at some later point in time ignoring the first PPD award. This would be especially true if for some reason after this second accident petitioner becomes entitled to either wage differential benefits or permanent total benefits. If the Commission awarded PPD in the first case and then wage differential or permanent total disability benefits in the second case, that would be unfair to the first employer. That would simply be an unwarranted bonus to the claimant. Repetitive Trauma Claim Insurer Denied the Right to Intervene Despite Claimant s Modification of Accident Date from May 12, 2009 to October 14, Appeal Dismissed. QBE Insurance Company v. Illinois Workers' Compensation Commission, Ronald Voges and G & S Foundry, 2013 Ill. App. (5 th ) WC (filed July 12, 2013). 12

14 Petitioner filed an application against respondent alleging repetitive trauma for an accident date of May 12, The application did not name any insurance carrier. Although petitioner filed his application alleging an accident date of May 12, 2009, he subsequently amended his application to allege an accident date of October 14, 2010 (seriously 17 months later). It is unclear from the decision when this amendment was made, but it appears it may have been done at trial or shortly before trial. After the hearing, the arbitrator issued a decision February 11, 2011 in petitioner s favor awarding TTD and medical bills. Presumably, because of the change in date of accident from May 12, 2009 to October 14, 2010, respondent s insurance coverage changed. It is not surprising that there would be a change in coverage 17 months later. After the arbitrator s decision was issued, QBE, presumably the carrier for the October 14, 2010 date of accident filed an appeal with the Commission. The employer (presumably for the prior carrier) also filed an appeal with the Commission. QBE subsequently filed a motion to intervene as an additional named party before the Commission. The Commission granted QBE s motion over petitioner s objection. The Commission considered the appeal by both QBE and the employer, but rejected it and affirmed the decision of the arbitrator. QBE then filed an appeal in the Circuit Court of St. Clair County naming all parties including the employer. The Circuit Court confirmed the Commission s decision and QBE appealed to the Appellate Court. The Appellate Court completely rejected and denied QBE s appeal. The court did not even consider the merits of QBE s appeal. The court instead ruled that QBE had no standing or jurisdiction in the Circuit Court. The Appellate Court ruled that QBE should not have been granted leave to intervene before the Commission. The Commission s decision granting the intervenor was reversed and the appeal filed by QBE was denied for lack of jurisdiction. Comment: This is truly an unfair and unjust result for QBE. We frequently have situations where a claimant seeks to modify the date of accident, especially in repetitive trauma cases. However, a claimant should not be able to simply amend the date of accident alleged at any time because there can be a change in coverage based on the date of accident alleged. The employer is entitled to have his defense presented by the carrier whose policy is in effect on the date of the accident alleged. The carrier is entitled to have a defense presented by its choice of counsel if the date is within their coverage. Petitioner should not have been allowed to proceed to trial with such a radical change in the date of accident unless and until defense counsel was offered the opportunity to check and make sure that coverage was proper. This situation can occur based on changed allegations from a claimant. It can also occur when the Commission simply decides to change the date of accident in a repetitive trauma case on its own. The Commission should obviously recognize that coverage can change for an employer and they should simply rule based on whether or not petitioner proved up an accident on the date alleged. The Commission should not simply change 13

15 the date of accident and force another carrier to pay a claim when it did not have a chance to present a defense. Neck Injury Sustained By Caregiver Allegedly Helping Patient in Assisted Care Facility Found Compensable. Court Refuses to Reverse Commission. Autumn Accolade v. Illinois Workers' Compensation Commission and Joan Shannon, 2013 Ill. App. (3d) WC (filed May 30, 2013). Petitioner was employed by respondent as a caregiver in an assisted care facility. She was hired in October, 2008 and claimed an injury March 15, She testified that she was assisting a female resident with a shower. She claimed that the resident was in the shower and petitioner had her right hand on the resident. She claimed that she turned to her left and extended her left arm to reach for the soap dish. She claimed she felt her neck pop and she experienced a shooting pain down her right arm into her armpit. She reported the injury, but continued to work. The following day, she saw her primary care physician and reported the onset of shooting pain down her right shoulder when she reached at work the day before. An MRI was done and it showed a large central disc herniation at C6-C7. The employer disputed the accident on the basis that petitioner did not sustain a work injury. Petitioner s manager testified that petitioner reported an injury. The manager testified that petitioner reported that she simply turned her head and something popped in her neck. The manager testified that the resident who was getting into the shower was very mobile. No lifting of the resident was required. Petitioner s own handwritten statement states only that the resident showered and during shower something popped in my back. Petitioner obtained an IME and the IME doctor concluded that petitioner s work incident aggravated her cervical disc disease to the point of requiring treatment. The employer arranged for an IME with Dr. Marc Soriano. Dr. Soriano took a history from petitioner and concluded that the incident of March 15, 2009 was the proximal cause of a herniated disc at the C6-C7 level. He concluded that the incident led to the need for surgery. The case was tried before an arbitrator and the arbitrator ruled in petitioner s favor. Contrary to respondent s assertions, the arbitrator concluded that the placement of the soap dish increased petitioner s risk of injury. The arbitrator concluded that assisting the resident by holding the resident with one hand to prevent her from falling increased her risk of injury. The arbitrator found that petitioner s job duties ensuring the safety of the resident requiring petitioner to hold onto the resident increased her risk of injury. Petitioner was awarded TTD, medical bills and PPD for 30% loss of use of the man as a whole. Respondent appealed, but the Commission affirmed. Respondent appealed to the Circuit Court and the Circuit Court affirmed. 14

16 Respondent appealed to the Appellate Court and the Appellate Court easily affirmed. The Appellate Court rejected the employer s argument that petitioner was simply reaching and had no increased risk. The Appellate Court found the question of whether petitioner sustained an accident was an issue of fact and there were certainly enough facts to support the Commission s decision. Comment: I understand the employer s frustration in this case. Petitioner did not sustain any significant work injury. She had a preexisting condition of severe degenerative changes in her neck. She was simply at work when she turned her head and her neck popped. This could have happened anywhere. No matter what she said eventually at trial, at the time of the incident petitioner was not doing anything strenuous. She was not placing any pressure on her arms or neck at the time of her incident. This was simply a personal condition that became exacerbated at work. However, the chance of a successful trial result and certainly the chance of success on appeal was completely eliminated once the employer got an IME report which stated that the accident caused a disc herniation at least at one level. If the employer had obtained a favorable IME report, its chance of success would have been significantly improved. Frankly, I am surprised the Appellate Court even published this decision since it appears to be such a routine affirmance of a Commission decision. The only reason they published the decision would appear to be discourage other employers from filing appeals in cases like this involving disputed accident claims. This decision again showcases the fact that the Legislature needs to tighten down on the standard of causation needed to prove a workers compensation claim. Employers should not be required to pay for personal, preexisting medical conditions. Court Awards Benefits to Police Officer Who Claims Mental Injury After Being Threatened With a Toy Gun Commission Decision Reversed. Ismael Diaz v. Illinois Workers' Compensation Commission and Village of Montgomery, 2013 Ill. App. (2d) WC (filed April 16, 2013). Petitioner was employed by the Village of Montgomery as a police officer and claimed a mental-mental injury May 29, The case was tried before an arbitrator and he ruled the case compensable. Petitioner appealed to the Commission and the Commission reversed in a two to one decision. Petitioner appealed to the Circuit Court and the Circuit Court affirmed the denial of compensation. Petitioner appealed and the Appellate Court reversed awarding benefits. Petitioner testified that on May 29, 2007 he responded to a call about a disturbance between two neighbors. While dealing with the call, another neighbor became upset because police cars were blocking his driveway. The third neighbor reportedly went into his house and came out what appeared to be a handgun. The third neighbor began walking towards petitioner and his partner with the gun. Within ten to 15 seconds after 15

17 seeing the third neighbor with the gun, petitioner realized that the gun was just a toy. The third neighbor then retreated into his home and was eventually arrested. Petitioner admitted that he did not have any mental problems on the date of the incident, May 29, He denied experiencing any anxiety after the incident. Two days later, on May 31, 2007, petitioner testified that he responded to another call involving an accident with injuries and felt anxious. Another day later, on June 1, 2007, during roll call, petitioner experienced dizziness, heart palpitations and nervousness. He was taken to the hospital because a heart attack was feared. Several days later, he was seen at Dreyer Clinic and diagnosed with posttraumatic stress disorder. He continued to work for several months, but complained of anxiety. He underwent a fitness for duty evaluation August 21, 2007 and was diagnosed with posttraumatic stress disorder. He was then off work and received psychological treatment from August 1, 2007 through October 23, He then returned to light duty work for a month and full duty work on November 30, He was awarded approximately 12 weeks of TTD and 15% loss of use of the man as a whole by the arbitrator. The Commission reversed and found that petitioner failed to prove an accident. The Commission ruled In finding that petitioner failed to prove accident, we rely on General Motors Parts Division v. Industrial Commission, 168 Ill. App. 3d 678, 522 N.E.2d 120 (1988). In General Motors, the court interpreted the Pathfinder decision and concluded that compensation is limited to the narrow group of cases in which an employee suffers a sudden, severe emotion shock which results in immediately apparently psychic injury and is precipitated by an uncommon event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment. The Commission adopts a more narrow construction of Pathfinder as expressed in the General Motors decision. In this case, petitioner is a police officer and is trained in weapons training. Petitioner is also trained to handle encounters with subjects who are considered armed and dangerous. We acknowledge that petitioner s encounter with the subject on May 29, 2007, presented a dangerous and precarious situation. We find, however, that the encounter that petitioner had with the subject on May 29, 2007, is not an uncommon event of significantly greater proportion than what he would otherwise be subjected to in the normal course of employment. The Circuit Court affirmed but the Appellate Court reversed and ruled the case compensable. The Appellate Court found that the Commission applied the wrong standard of law in evaluating the case. The court found that petitioner s exposure was a sudden emotional shock beyond that to which employees are exposed in every day work environment. The court felt that the Commission applied a higher standard of petitioner because he was a police officer. The court found that this claimant s exposure should be compared to members of the general public. Police officers should not be held to a higher standard simply because they are trained to deal with difficult situations. The 16

18 court held We believe that whether a worker has suffered the type of emotional shock sufficient to warrant recovery should be determined by an objective, reasonable person standard, rather than a subjective standard that takes into account the claimant s occupation and training. To the extent that the holding in General Motors would require, in a mental-mental claim, that the precipitating event be viewed in the context of the claimant s occupation and training, we reject the court s decision in that case and decline to follow it. Justice Turner dissented. Justice Turner concluded that the case was not compensable and that the court should not have reversed the Commission. Justice Turner noted that the undisputed facts show that petitioner did not suffer a sudden, severe emotional shock. He noted The record contains no evidence that the claimant had any immediate mental or emotional disturbance when he witnessed a man with a gun that the claimant quickly realized was a toy. The claimant testified he did not experience any immediate anxiety after the accident and was fine the next day as well. It was not until two days after the incident that he felt some anxiety when responding to an accident with injuries. Comment: The Appellate Court has demonstrated on several occasions that they are more likely to award compensation to police officers in questionable cases. They had been willing to reverse the Commission and grant disability to police officers using a strained logic. In this case, the court again substituted its judgment for the Commission and refused to allow the Commission to interpret the facts and evidence. This decision will pave the way for a more generous interpretation of the law involving mental-mental injuries. Appellate Court Reverses Denial of TTD and Medical in Favor of Claimant Who Was Involved in Motor Vehicle Accident, But Refused Medical Treatment at Rehabilitation Institute of Chicago. Bryon Kawa v. Illinois Workers' Compensation Commission and Ford Motor Co., 2012 Ill. App. (1 st ) WC (filed June 3, 2013). Let me try to summarize a lengthy and horrendous majority decision from the Appellate Court. The claimant was involved in an undisputed accident while working as an engineer. He suffered a motor vehicle accident on February 13, As a result of the motor vehicle accident, he suffered an injury to the right shoulder and lesser injuries to the right knee and low back. The shoulder injury was diagnosed as an acromioclavicular separation. Petitioner came under the care of Dr. Koh. He performed surgery on May 10, 2007 and again on September 10, The employer monitored petitioner s care and arranged IMEs with Dr. Blair Rhode on several occasions. He agreed with petitioner s surgeries. Dr. Rhode s physical examination showed inconsistencies and he felt there was a significant psychological component to petitioner's continued complaints of pain. Dr. Rhode recommended and Dr. Koh agreed that petitioner should participate in a multidisciplinary pain management program. 17