Review of Illinois Workers Compensation

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1 Review of Illinois Workers Compensation april 2004 CONTENTS Around the Industrial Commission Industrial Commissioners Not Confirmed by Senate Commissioner Kinnaman Resigns Because of Ethics Legislation Attorney Susan Pigott Named New Labor Commissioner At the Arbitration Level Many New Arbitrators Fill the Ranks Around the State Legislature New Legislation Will Be Proposed Before the Appellate Court Industrial Commission Division Award of Attorney s Fees by Industrial Commission Reversed Denial of Petition to Reinstate Application Upheld Denial of TTD Upheld Where Claimant Rejected Back Surgery Denial of Benefits Upheld Based on Inconsistent Medical Histories Slip and Fall at Restaurant Parking Lot Held Compensable Before the Appellate Court of Illinois Non Industrial Commission Division Contribution Action Allowed Against Employer Despite Prior Settlement Plaintiff Entitled to Claim Full Medical Bill Despite PPO Discount Around the Office Great Trial Results New Faces Conclusion Spring is here and the baseball season begins.the legislature is in its spring session and the plaintiff s bar is pushing for legislative changes. Be aware and be prepared to call your legislators to lobby against an expansion of an already generous Illinois Workers Compensation Act. CONTACT INFORMATION Michael E. Rusin South Riverside Plaza Suite 1530 Chicago, Illinois

2 REVIEW OF ILLINOIS WORKERS COMPENSATION April 2004 By Michael E. Rusin Around the Industrial Commission Controversy continues at the Industrial Commission as the Senate has failed to act to confirm the Governor s most recent Industrial Commission appointments. As you will recall, in the summer of 2003, Governor Blagojevich and the Democrat controlled General Assembly enacted a statute to abolish the terms of the Industrial Commissioners so that the Governor could terminate the Republican appointed commissioners and appoint new and different commissioners. The Governor proceeded to appoint former petitioner s attorney Dennis Ruth as Chairman of the Industrial Commission. He appointed Jacqueline Kinnaman and Barbara Sherman as Labor Representatives, James Serkland and Paul Rink as Independent Representatives, and David Akemann and James DeMunno as Employer Representatives. All Industrial Commission appointments must be confirmed by the Senate. However, only Commissioners Kinnaman, Sherman and Akemann have been confirmed by the Senate. The remaining commissioners, including Chairman Ruth, have not been confirmed by the Senate. Despite the lack of Senate confirmation, all commissioners have been serving in their posts, hearing oral arguments, and rendering decisions. The failure of the Senate to confirm the commissioners raises a question as to the legitimacy of the Industrial Commission s decisions. Despite apparent authority, the non-confirmed commissioners do not have actual authority to make decisions. Any appeal from the Industrial Commission to the circuit court should question the legitimacy of the decisions of non-confirmed commissioners. The most controversial appointment is that of Commissioner James DeMunno as an Employer Representative. Generally, employer representatives have had a background working either for an insurance carrier or TPA or as a workers compensation defense attorney. Commissioner DeMunno s background was that of a petitioner s attorney. Business groups are not pleased with his appointment. Governor Blagojevich also sponsored ethics legislation which has resulted in the resignation of Commissioner Kinnaman. The new ethics legislation went into effect on February 1, The legislation prohibits state employees or their spouses from holding public office and lobbying the legislature in related matters. Commissioner Kinnaman s husband holds a position with a labor organization where he could lobby the legislature on workers compensation issues. Consequently, she resigned her post effective February 1, Commissioner Kinnaman s resignation has forced the suspension of oral arguments before Panel A of the Industrial Commission. A new commissioner has just been named to serve on Panel A with Commissioners Rink and De Munno. The newly appointed Labor Commissioner is Attorney Susan O. Pigott. Ms. Pigott has significant past experience in the workers compensation arena as a petitioner s attorney. She worked primarily for the well-known petitioner s firm Cullen, Haskins, Nicholson & Menchetti. To my knowledge she has not been in active practice for the last few years. Her - 1 -

3 background as a petitioner s attorney makes her an appropriate choice as a Labor Commissioner. Ms. Pigott earned her undergraduate degree from St Mary s College of Notre Dame and her law degree from Loyola University. Her term will expire in January, 2007 Former Commissioner Kinnaman has been involved in the workers compensation arena for many years. It would be surprising to see her completely abandon the industry. The ethics laws would not preclude her from being appointed by the Governor as an arbitrator. She is certainly qualified to serve as such. There had been delays at the Commission level because Panel A could not hear oral arguments. The resignation of Commissioner Kinnaman did not result in a temporary situation. Therefore, the Chairman could not appoint an arbitrator to serve as a commissioner temporarily. Such a procedure would be allowed if Commissioner Kinnaman were off on a medical leave, but she is not. The courts have ruled that the Governor must act to appoint a new commissioner in order for any decisions to be valid. I expect arguments will now be scheduled again with the appointment of Commissioner Pigott, even before she gets approved by the Senate. At the Arbitration Level The arbitration ranks have swelled. There are certainly now more than enough arbitrators to handle the pending cases. Despite the Chairman s insistence that more cases be tried, it doesn t appear that any more cases are being tried now than before. There are certainly fewer pretrials. At the Chairman s insistence, the arbitrators as a whole are not demanding pretrial conferences as they used to. However, most arbitrators remain willing to hold meaningful pretrials if the parties request. A negotiated settlement remains the quickest way to resolve a case in its totality. Even with more arbitrators, proceeding to trial is a lengthier and more complicated process. Remember virtually all the new arbitrators used to be petitioner s attorneys before they were appointed to adjudicate cases. We have yet to see how fair they will be to both parties. Great Link The Industrial Commission has established a link which allows parties to check the status of a case at the Industrial Commission. The link is At this juncture, you cannot check the Industrial Commission website to see if a petitioner has filed a case. However, if you have a case number, you can use this link, enter the case number, and determine the next status date for the case. You can also identify petitioner s attorney and the defense attorney. The link doesn t always work. Don t get discouraged if it doesn t work the first time you try it. Further, if you can t hook into it, check with your IT department and make sure you don t have any filters which prohibits access. This will certainly save you time and give you the chance to identify petitioner s attorney and the next status call date if you - 2 -

4 don t have a copy of the application. Of course, if this doesn t work, you can always call me and I will discover the information for you. Around the State Legislature Surprisingly, the legislature has been quiet with respect to workers compensation legislation. However, I expect this to change in this legislative session. This is labor s last good chance to enact legislation changing the WC Act before the next election. I don t believe they will waste it. Senate President Emil Jones has directed Senator Terry Link to hold discussions and make recommendations on WC legislation in the next few weeks. Many changes will be considered including raising the minimum PPD and TTD rates, raising the PPD rate from 60% to 66 2/3%, and increasing penalties for late payments under Section 19(l). Additionally, the proposed legislation will certainly try to change the definition of accident and make Illinois a positional risk state. The proposed legislation will be proposed to make sure Illinois employees are covered for acts of terrorism, but the result will be an expansion of liability to make Illinois employers responsible for all injuries at work whether or not caused by a work-related risk. Business groups should be ready to organize whatever resources they can to defeat any proposed legislation. Before the Appellate Court of Illinois Industrial Commission Division Award of Attorney Fees by Industrial Commission Reversed Industrial Commission Did Not Have Jurisdiction to Award Fees to Claimant s Former Attorneys Angel Alvarado v. Industrial Commission & Central Die Casting, WC, filed In 1996, Attorney Goldstein filed an application on behalf of petitioner alleging an accident of August 19, Goldstein withdrew his appearance on August 15, 1997 and Attorney Ribbeck substituted. Goldstein filed a petition for fees and on January 5, 1998, the arbitrator entered an order continuing the fee petition until settlement or resolution and ordered the employer not to issue any drafts until the fee petition was resolved. On August 11, 1999, Attorney Ribbeck filed a second application for the same accident date. The cases were consolidated. Subsequently, on January 17, 2001, petitioner voluntarily dismissed the first case. Shortly thereafter, Attorney Ribbeck settled the second case which included an attorney fee of $19, No fee was awarded or given to Attorney Goldstein. The settlement contract was approved March 14, On August 9, 2001, Goldstein filed a petition for attorney s fees. The Industrial Commission had a hearing and granted the petition. Attorney s fees were awarded to Goldstein in the amount of $1, The Commission concluded that Attorney Ribbeck filed a second application primarily to avoid the obligation to pay the attorney fee. The Commission referred - 3 -

5 the matter to the Attorney Registration and Disciplinary Commission to investigate whether Attorney Ribbeck violated ethical rules. Petitioner appealed to the trial court and the trial court affirmed. Petitioner then appealed to the appellate court, and the appellate court ruled that the Industrial Commission did not have jurisdiction to consider the subsequently filed fee petition. The court based its decision on a similar case, Hoshor v. Industrial Commission, 283 Ill.App.3d 295 (1996). In a similar case, an attorney filed a petition for fees a year after a settlement was approved. The court ruled that the approval of a settlement has the same legal effect as an award. An approved settlement becomes final unless a petition for review is filed with the Industrial Commission within 30 days. An appeal to the circuit court must be filed from a Commission decision within 20 days. The Industrial Commission s jurisdiction is not even extended by a claim of fraud. If fraud is claimed, a party may seek an action in equity in circuit court but not before the Industrial Commission. The court ruled that the approval of the settlement contract was a final decision. Therefore, there was no basis for the Commission to reopen that decision. Comment: I agree with this decision. I think the court does well to limit the Industrial Commission s jurisdiction. The Industrial Commission s jurisdiction is limited by the statute. The limitation is for good reason. The Industrial Commissioners need not be attorneys. Their jurisdiction should be limited to ensure that critical legal questions are resolved by the courts and not the Industrial Commission. Attorney Goldstein is not powerless to assert his lien. However, his action should not have been brought before the Industrial Commission. It should have been brought before the circuit court. The Commission should not have unlimited jurisdiction to reopen cases once decisions have been made or settlements have been approved. Denial of Petition to Reinstate Application Upheld Even Though Petition to Reinstate Was Timely Filed Johnnie D. Banks, Jr. v. Industrial Commission, No WC, filed Petitioner filed an application on November 2, After the filing of the application, the case appeared on the status call on multiple occasions and it was eventually dismissed on April 21, Notice of the dismissal was mailed to the parties on approximately May 12, Within 60 days, petitioner s attorney filed a petition to reinstate the case. However, the attorney didn t file a notice of motion and notice the petition for a hearing. On February 28, 2001, petitioner s new attorney filed a second petition to reinstate and sought a hearing before the Industrial Commission. The attorney argued that the initial petition to reinstate was timely filed and that petitioner had a meritorious claim. The arbitrator denied the petition to reinstate and the Industrial Commission affirmed. The trial court affirmed and the appellate court did also. The court noted that the case had been on file for several years without action. The court noted that the Industrial Commission properly dismissed the case pursuant to - 4 -

6 their rules. The court admitted that the petition to reinstate was timely filed. The court noted that the rules do not state that a petition to reinstate must be heard within a certain time. However, the court noted that the petition to reinstate in this case didn t comply with Rule (b) which requires that a timely petition to reinstate set forth the date on which the petition is to be heard by the arbitrator. Further, Rule requires that all motions be accompanied by a notice of motion form. The court noted that even though the petition was timely filed, the failure to present it for almost two years could pose a prejudice to the employer in presenting a defense. The denial of the petition to reinstate was upheld. Comment: This decision is helpful for employers. The Commission is too lenient in granting reinstatements after dismissals. Frankly, the Commission rule allowing cases to be continued for three years is overly generous. Even though the statute of limitations is three years, the Commission shouldn t allow cases to pend for three years without action. This is even more true since the statute of limitations is three years. Frequently, an application is filed alleging an accident almost three years earlier. The case then sits on the Industrial Commission docket for three years. By the time the Commission forces a case to hearing, the accident may be six years old. It is unfair to employers to force them to defend a case where the accident date is so old. The Commission should become more aggressive in cleaning their docket by dismissing old cases and not reinstating them. Claimant s Failure to Decide on Back Surgery Entitled Industrial Commission to Suspend TTD Benefits Employer s Stipulation to TTD Was Binding Despite Evidence to the Contrary Rodney Walker v. Industrial Commission, No WC, filed Petitioner filed an application with the Industrial Commission alleging an accident date of February 23, Petitioner slipped and fell and injured his back. Petitioner had a prior back injury followed by a laminectomy. He underwent a second laminectomy after this accident. His treating doctor didn t feel petitioner needed further treatment. Petitioner sought a second opinion from Dr. Robson on September 15, Dr. Robson recommended petitioner have a second surgery or simply live with his condition and his permanent restrictions. Dr. Robson felt that if petitioner didn t have surgery, he was at MMI. The employer didn t take petitioner back to work because of his permanent work restrictions. Petitioner didn t have any further medical care. A year later, petitioner returned to see Dr. Robson October 4, Petitioner did not decide to proceed with surgery. Dr. Robson felt petitioner was at MMI. The employer terminated TTD at that point

7 The case was tried before the arbitrator on April 19, At trial, petitioner testified that he wanted to have surgery. The arbitrator ruled in petitioner s favor on the issue of TTD. She awarded TTD from the date of the accident up through the date of the hearing, or 112 weeks. At the time of the arbitration hearing, respondent completed a stipulation sheet claiming that petitioner was only entitled to 84 weeks of TTD from the date of the accident through October 13, On appeal, the Industrial Commission reduced the TTD award. The Industrial Commission awarded TTD from the date of the accident only through September 15, At that juncture, petitioner was at MMI, according to Dr. Robson. Petitioner did not decide to have surgery. Petitioner didn t have any treatment until he went back to see Dr. Robson on October 4, Even then, petitioner didn t decide to have surgery. It was not until the date of trial that petitioner stated that he wanted to have surgery. Petitioner appealed to the circuit court and the circuit court modified the Industrial Commission decision. The circuit court found that the Industrial Commission was entitled to cut petitioner s TTD, but they could only cut it to the 84 weeks the respondent stipulated to at the time of trial. The parties appealed to the appellate court and the appellate court affirmed. The appellate court found that the Industrial Commission was justified in cutting off the TTD because petitioner was at MMI. The court noted that although at the time of trial petitioner was requesting surgery, there was no evidence that prior to trial petitioner had opted for surgery. The court noted that a claimant can t be forced to have surgery in order to improve his condition. The court noted multiple cases wherein the court refused to force a claimant to have surgery where the claimant was fearful of having surgery. In this case, petitioner never said that he wanted surgery and never said that he was afraid of surgery. In this case, petitioner simply didn t make a decision as to whether or not to have surgery until he showed up at trial. In this case, the Industrial Commission was therefore warranted in cutting off TTD benefits because of petitioner s inaction. However, the court ruled that the employer was bound by its stipulation at trial that petitioner was disabled for 84 weeks through the October 2000 cutoff date. Comment: This is a good decision from the court. It was an excellent decision from the Industrial Commission. Unfortunately, the employer made a poor decision at the time of trial in its trial stipulation. The employer stated on the trial stipulation sheet that petitioner was disabled through October 13, 2000 even though it had evidence to show that petitioner was only disabled through September 15, The employer was bound by its stipulation at trial. The fact that the employer paid TTD through October 13, 2000 was not an admission of liability. Employers must be wise in completing trial stipulation sheets. The payment of compensation is not an admission of liability, but the stipulation at the time of trial is an admission of liability and cannot be waived by the employer on appeal

8 Employers must carefully evaluate their evidence and stipulate only to what the evidence shows rather than simply stipulate to what s already been paid. It is not advantageous to make the claimant s job even easier by stipulating to a result which is contrary to the evidence. Commission s Denial of Benefits Based on Inconsistent Medical Histories Affirmed Objection to Commissioner Madigan Rejected by Split Court Christopher Sleeter v. Industrial Commission, No WC, filed Petitioner filed an application with the Industrial Commission alleging an accident date of June 10, At arbitration six years later, petitioner testified to a specific accident. He claimed that he was moving a box when his foot caught on an object on the floor and he twisted and fell. Medical records from treatment five months later and one month after petitioner filed an application were consistent with the trial testimony. However, contemporaneous medical records contradicted petitioner s testimony. Contemporaneous medical records showed petitioner denied any recent accident. Nevertheless, the arbitrator awarded benefits. The Industrial Commission reversed, finding petitioner not to be credible. The circuit court and the appellate court affirmed the Commission s denial. The court found that the Commission s decision was not contrary to the manifest weight of the evidence. The court noted that petitioner s testimony was inconsistent with the medical records of treatment shortly after the accident. The court noted that petitioner didn t give a consistent history of accident until November 1994 after he had filed an application with the Industrial Commission. The court also found that the Commission had justification to find petitioner not credible in part by his failure to participate in a work hardening program and failure to cooperate with therapists. Additionally, petitioner challenged the decision on appeal, claiming that it was void because Commissioner Madigan was not qualified to serve as a commissioner. The Act requires that in order to be appointed a commissioner, a candidate must be an attorney, an arbitrator for three years, or have four years of professional labor relations experience. Petitioner argued that Commissioner Madigan didn t possess any of those qualifications. Petitioner pointed out that there was nothing in the record of Commissioner Madigan when he was appointed to justify his appointment based on the statutory requirements. In a split 3-2 decision, the appellate court rejected that argument, ruling that it was up to the Governor to determine if the candidate had the requisite experience for the job. The majority refused to require respondent to prove that Madigan was qualified, but instead relied on the Governor s decision. The two-member dissent concluded that there was no evidence to support Commissioner Madigan s appointment. They would have ruled that the case should go back to the circuit court for a hearing as to Commissioner Madigan s qualifications. Comment: The decision is a good one for employers. The case was clearly not compensable. The contemporaneous medical records contained no history of an accident. Moreover, the - 7 -

9 medical histories contradicted a work injury on June 10, The decision affirming the denial of benefits was clearly correct. The challenge to Commissioner Madigan s qualifications is an interesting one. In the last 20 years, several politicians have been appointed as commissioners who did not appear to meet the qualifications of the statute. The fact that two members of this panel dissented shows that the court takes this issue seriously. It further supports my position that current case decisions may be subject to challenge based on the qualifications and status of the Commissioners. Employers should consider challenging unfavorable Commission decisions based on the qualifications of certain commissioners, especially those of commissioners who have been appointed but not yet confirmed by the Senate. Slip and Fall on Ice at Restaurant Parking Lot Held Compensable Because Petitioner Was Instructed Where to Park Janice Mores-Harvey v. Industrial Commission, No WC, filed Petitioner filed an application alleging an accident date of December 17, Petitioner worked as a waitress for Bob Evans Restaurant. She arrived at work at approximately 6:00 a.m. She parked her car behind her employer s restaurant in the parking lot that surrounded the building. She exited her car and fell on snow and ice. Petitioner testified that employees were directed to park on either the side or the back of the restaurant so that customers could park in front of the restaurant. The case was tried before an arbitrator and ruled compensable. Respondent appealed and the Industrial Commission reversed in a split decision. The circuit court reversed and reinstated the arbitrator s decision. The appellate court affirmed. The appellate court ruled that the case was compensable because petitioner was not free to park anywhere on the lot. Because petitioner was restricted to park on the side or in the back of the restaurant, her risk of injury was not common to the general public. Her risk of injury was increased. The court stated, We disagree with employer s contention that the presence of snow and ice in the entire lot compels a conclusion that claimant did not face any risk to a greater extent than other persons. By restricting where claimant could park her vehicle, the employer exercised control over its employees actions. In this way, the employee faced risks to a greater extent than the general public. Comment: In last year s Wal-Mart case, the appellate court ruled that a slip and fall on ice in a company parking lot open to the general public was not compensable. In that case, the evidence showed that employees were requested to but not required to park in a certain area. Shortly thereafter, the appellate court ruled in the Homerding case that a slip and fall on ice in a company parking lot was compensable if the employees were restricted in the area where they could park. This decision follows the Homerding case. It certainly appears that the court will seek to find exceptions to the Wal-Mart case if presented with slightly different facts. Employers would be wise not to designate required employee parking areas. If that restriction can be avoided, slips and falls in the parking lot should be non-compensable events

10 Before the Appellate Court of Illinois, Non-Industrial Commission Division Cases Contribution Action Allowed Against Employer Even Though Action Was Based on Vicarious Liability of Employee Who Entered into Good Faith Settlement with Plaintiff Equistar Chemicals v. BMW Constructors, No , filed , Third District. The plaintiff and a co-employee, Bromberek, were involved in a motor vehicle accident at Equistar. Both plaintiff and Bromberek were employees of BMW Constructors. Plaintiff filed a civil negligence suit against Bromberek and Equistar. Equistar filed a third party complaint for contribution against BMW. Plaintiff subsequently amended his lawsuit and made BMW a direct defendant as well. Bromberek filed a motion to dismissed based on the exclusive remedy provisions of the Workers Compensation Act. However, the court delayed ruling on this motion for a year and a half and Bromberek entered into a settlement for $5, with the plaintiff. The court found that the settlement was in good faith. BMW was not named in the written settlement agreement. It appears that BMW s potential liability in tort was based on alleged negligent actions taken by its employee Bromberek at the time of the incident. BMW filed a motion for summary judgment claiming that the settlement by Bromberek eliminated any potential claim for contribution premised on the vicarious liability of the actions of the settling party, Bromberek. The trial court agreed and dismissed the contribution claim. However, the appellate court reversed. The appellate court ruled that even though Bromberek settled with the plaintiff and even though BMW s liability is premised on Bromberek s actions, the claim for contribution must stand. The claim for contribution is a separate and distinct right of liability. The court found it significant that BMW was protected by the Kotecki cap. The court also found essentially that the settlement that the plaintiff made with Bromberek did not bear a reasonable relationship to the settling parties relative culpability. Comment: This case presents some rather unique facts. The decision by the appellate court is likely a fair one, but it is legally not correct. The plaintiff caused the trouble in the first place by filing a direct action against a co-employee and his employer. The plaintiff knew that such claims were barred by the exclusive remedy of the Workers Compensation Act, but he filed them anyway. The trial court created further problems by not ruling promptly that the direct actions against the co-employee and the employer should have been dismissed. The coemployee then settled for a nominal amount simply to save the costs of further litigation, a problem which would not have occurred if the trial court had ruled promptly and correctly. However, once the co-employee settled out, that should have served as a bar against any type of direct or contribution action against the employer since the employer s liability was premised solely on the co-employee s actions. Once the co-employee settled out that should have - 9 -

11 eliminated liability for the employer. This case should not be used as significant precedent because the facts presented are so distinct. Plaintiff Entitled to Claim Full Medical Bill Against Defendant Despite Insurance Company Discount Joyce Arthur v. Laurie Catour and Stenzel Brothers Auction Service, No , filed , Third District. Plaintiff filed a negligence action against the defendants. She incurred medical bills totalling approximately $19, Prior to the accident, petitioner had group medical insurance through Blue Cross/Blue Shield and her carrier paid the medical bills after applying a discount. The insurer was able to negotiate the bills and paid only approximately $13, Plaintiff argues that in presenting her case to the jury, she should be able to ask for $19, The defendant argued that plaintiff should only be able to ask for $13, since that was the extent of the bills paid in full by the carrier. The trial court ruled that plaintiff could only ask for the amount paid by the carrier. The trial court ruled that to allow the plaintiff to ask for more only punishes the defendants and presents a windfall for the plaintiff. Plaintiff appealed and the appellate court reversed in a split decision. The two-member majority ruled that plaintiff should be able to ask for the entire amount of the bills. The court ruled that the amount claimed by plaintiff was the actual amount of the bills and didn t represent any windfall. The majority ruled that the defendant shouldn t get the windfall of the plaintiff having purchased group medical insurance. The court reasoned that if plaintiff hadn t purchased the group medical insurance, she would have had to pay the total amount of the bills. The defendant shouldn t benefit from the fact that plaintiff purchased insurance coverage. The court noted that this issue had been analyzed by numerous jurisdictions with conflicting results. Courts in the District of Columbia, Wisconsin, and South Carolina have allowed plaintiffs to claim the full medical bills. However, courts in Pennsylvania, Virginia, Kansas and California have not. The dissenting justice held that petitioner should only be entitled to claim $13,500.00, the amount of the medical bills incurred and paid in full by the insurance carrier. The dissenting justice noted that the $6, difference never was and never will be an obligation of the plaintiff. Comment: This is a difficult issue that should be addressed legislatively. I disagree with the majority and agree with Justice Holdridge, the dissenting justice. If plaintiff had paid the medical bills herself, she should be able to claim the full amount from the defendant. However, she didn t pay the medical bills. They were submitted through her medical insurance, discounted, and paid in full. The amount that the carrier paid is the amount that should be subject to claim at trial

12 This is becoming an issue even at the Industrial Commission. Certain claimants attorneys are now stating that an employee is entitled to a judgment against the employer for all bills submitted. They are claiming that if an employer reduces and pays a bill, even pursuant to a PPO discount, the difference must be paid to the plaintiff. I think that s an outrageous argument that is totally unjustified. I don t think any such payments should be made and the issue should be forced to litigation. I think that argument is simply based on plaintiff attorney greed. The act requires only that reasonable and necessary bills be paid. Every bill submitted by a provider may not be reasonable. The employer can certainly enter into PPO arrangements with providers as well as engage in negotiations to reduce bills to reasonable amounts for services rendered. AROUND THE OFFICE Great Trial Results Our attorneys have been busy trying cases and getting good results. We recognize that the results are premised on team effort. It s critical that the employer, the carrier and the attorney work together to develop evidence to produce good rulings. Ed Tomkowiak had an excellent decision from Arbitrator Kane in Chicago in the case of Thomas Lorek v. Wal-Mart, 98 WC Petitioner claimed that he suffered repetitive injuries as a result of walking and running on a concrete floor as well as repetitive bending, stooping, etc. performing his job duties as a security guard. Petitioner claimed permanent and total disability as a result of alleged back and foot injuries. Petitioner s attorney claimed permanent and total disability. The arbitrator ruled petitioner had no accident and failed to prove causal connection. Brent Halbleib won a case before Arbitrator Giordano in Ottawa, Timothy Karns v. Ultra Foam, 00 WC In that case petitioner was claiming an injury while working at his employer s boss s home. Mr. Halbleib arranged for and presented several witnesses who denied that petitioner was working at the boss s home as an employee. Further, we presented witnesses to show that petitioner s alleged injury was the result of drug use rather than an on-the-job injury. The arbitrator ruled in our favor and denied that petitioner was a loaned employee. He further denied that petitioner sustained accidental injuries. Ted Powers obtained a denial in a case for State Farm Insurance from Arbitrator Peiler in Chicago (Robert Boardman v. Performance Floors, Inc., 02 WC 16787). In that case, petitioner claimed an accident date on November 1, 2001 while laying carpet. However, his supervisor testified that he didn t report any injury. Petitioner continued to work until terminated in March He then sought medical treatment and claimed a work injury. The arbitrator found petitioner not to be credible and denied compensation. Dan Arkin obtained a denial from Arbitrator Hagan for IRMA in the case of Shana Murnane v. Village of Hazel Crest, 02 WC Although petitioner claimed an injury of June 14, 1999, Mr. Arkin proved that the injury was only a minor one. Despite the fact that petitioner sought significant medical treatment over the last several years, the arbitrator found petitioner was not

13 entitled to permanent partial disability. Dan also obtained an excellent result for State Farm Insurance in the case of Tommie Williams v. Racz Littwin Construction, 03 WC In that case, petitioner claimed an injury date of July 17, 2003 which we disputed. After three different hearings and the presentation of multiple witnesses, Arbitrator Lee entered a denial finding petitioner not to be credible. The witness testimony and inconsistent medical records were the key to winning the case. Mark Rusin obtained an excellent result from the Industrial Commission in the case of David Adams v. Con-Way Central Express, 01 WC That case involved an accident date of April 27, Petitioner claimed that he injured his knee, but the employer disputed any such injury. The employer didn t have enough information to deny the case initially and it was accepted. Mr. Rusin presented the testimony of petitioner s supervisor and cross-examined petitioner s doctors. He convinced Arbitrator Erbacci to deny the case in total. Petitioner appealed and the Industrial Commission affirmed the denial. We now have a $46, credit that we can assert against petitioner. Mark also got an excellent result from Arbitrator Fratianni in the case of Abel Manzo v. Consolidated Freightways, 01 WC This case involved a truck driver who injured his shoulder and had multiple surgeries. We paid TTD but eventually stopped when petitioner was at MMI. His doctor gave him permanent restrictions, but our IME doctor felt petitioner could perform his normal work duties. The arbitrator sustained the denial of TTD. The arbitrator noted that petitioner didn t prove that a physician recommended vocational rehabilitation or job change. Further, petitioner didn t present evidence of a consistent job search. The arbitrator terminated TTD even before we had stopped paying. We currently have an overpayment credit of almost $14, Joe Marciniak obtained an excellent decision from Arbitrator Kane in the case of Charles Borawski v. Aerotek, 98 WC Petitioner claimed an injury date of November 3, However, Mr. Marciniak showed that petitioner had made numerous inconsistent statements about the date of the accident. Because of all the various inconsistencies we showed, the arbitrator found that petitioner wasn t credible. The arbitrator found that petitioner failed to prove accident and denied the case. Further, he analyzed the medical and found that petitioner failed to prove causal connection. New Faces We are pleased to have welcomed several new attorneys to the office in the last quarter. We have welcomed Attorney Joseph A. Marciniak, a seasoned veteran of workers compensation defense litigation. Mr. Marciniak is a 1990 graduate of ITT Chicago Kent College of Law. He has 14 years experience defending workers compensation claims. Most recently, he served as staff counsel for AIG Insurance and Safeco Insurance. In addition, we welcome Attorneys Steven Dyki and Patricia Hurt to our workers compensation defense practice. Mr. Dyki is a 1999 graduate of DePaul University College of Law. He has four and a half years of handling workers compensation claims. In addition to cases in Chicago, he will also be defending claims in Peoria and Mattoon. Ms. Hurt is our

14 newest associate. She is a 2003 graduate of Southern Illinois University School of Law. She has been involved in the workers compensation practice for several years as a paralegal and law clerk. Before that she was in the military for several years. She worked in our Carbondale office as a law clerk and since her graduation she has been working in our Chicago office. We are pleased to announce the arrival of another of our hopeful future attorneys. Attorneys Brent Halbleib and Cristina Nolan had a new baby girl on March 14, Baby Rhiannon Caoilinn joins her two sisters in the Halbleib-Nolan household. This means that Brent now lives in a house with four women. My best wishes and prayers are with him. CONCLUSION This job would not be nearly as much fun if it weren t for the politics at the Industrial Commission. It surprised me that the Governor did not act quickly to replace departing Commissioner Jacqueline Kinnaman, especially since the open position is a labor commissioner. Perhaps there was fighting among the unions over whoever gets to choose the next labor commissioner. The new appointment is somewhat surprising. While I expected to see a woman appointed to maintain the gender balance at the Commission, but I expected someone who was more involved in politics. The failure of the Senate to vote on the remaining commissioners and either accept or reject them is truly surprising, especially since Democrats control the Senate and Governor s Mansion. This lack of action by the Senate will certainly result in litigation over the legitimacy of the decisions of the Industrial Commission. These agency appointments shouldn t be that controversial. They don t get to decide where the next casino is going to open in Illinois nor how much money schools will get for education. They do, however, decide how much money employers spend on workers compensation. This is not a small line number on any employer s budget. Direct workers compensation costs and premiums are already significant. The Governor should at least give employers input as to who the employer representatives are on the Illinois Industrial Commission. Republican governors always allowed input from labor. The Governor apparently feels uninhibited because Democrats currently control the legislature. Frankly, I believe the hold-up has nothing to do with the individuals appointed and only involves politics. I am convinced that votes are being traded on this issue for other completely unrelated issues. One should never assume party unity when jobs and money for appropriations are at stake. I am cautiously pleased to report that there have been no legislative changes in Springfield. There are no major bills currently pending to change the Workers Compensation Act. However, employers must be wary since either chamber could quickly push a measure through committee and bring it to the floor of either house. Once approved by the legislature and the labor unions, it will be difficult for employers to discourage the Governor from signing any legislation. The influence of the plaintiffs attorneys is currently strong. That group was a strong and early supporter of the Governor and he has not forgotten their verbal and monetary support. It was significant

15 Fortunately, case decisions show that the courts are not willing to defer to the Industrial Commission on significant legal issues. The courts are willing to scrutinize issues concerning the legitimacy of commissioner appointments and status. The courts are willing to critically examine the jurisdiction of the Commission to decide legal issues. Such questions must be raised anytime a circuit court appeal is filed. If such issues are not raised in the circuit court, they may be barred from being raised in the appellate court. We recognize that the climate has changed at the Industrial Commission and that it has become more petitioner-friendly with the appointment of new commissioners and arbitrators whose prior employment was as petitioners attorneys. However, we can t change our case handling. We must continue to aggressively investigate questionable cases and critically examine medical opinions and recommendations. We can still win cases with solid investigation and the development of favorable evidence. I was planning to be in a different climate for a week this spring. I had hoped to attach to this newsletter some exotic pictures from a scuba diving trip in the Caribbean. I had planned to fly to Puerto Rico on March 20, 2004 and spend a week off the uninhabited Mona Island diving with migrating humpback whales. Instead, I inexplicably extruded an L4-L5 disc and underwent a microdiscectomy procedure on Monday, March 22, Fortunately, I was able to schedule surgery at 7:30 a.m. so that I could get back working at home by noon that same day. I was able to return to work at the office on March 24, I struggle to understand how individuals stay off work for weeks, months and years following minor injuries. I started teaching my fitness classes again on March 29, As a fortunate byproduct, I ve added swimming to my training regimen and now I ll have to add a Triathlon or two this summer to my racing schedule. It may take a month or two before I get back into peak racing form. Right now I would bet that I will run a 10K race at least before Mark Prior makes his first start for the Cubs this year. With the cancellation of my vacation, I have scheduled a trip to Hawaii for mid-june, Since I could not get underground photos of humpback whales, I will try to get photos of manta rays and/or sea turtles cruising the back wall of the Molokini crater off the island of Maui. Barring another bizarre injury I promise some excellent photos in my next newsletter and on our firm website. I have also always been tempted by the prospect of cycling down the Haleakala crater. Maybe I will do it this trip if I can get up a 2:30 am to see the sunrise at 10,000 feet in the middle of the Pacific. The sight must be awesome

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