I&F Prevails where Petitioner Fails to Paint Picture of Work Related Repetitive Trauma

Tina Freund was recently successful in obtaining a zero award with the denial of all benefits for alleged repetitive trauma claims to aclaimant’s knees, resulting in bilateral knee replacements. The respondent’s exposure under the 19(b) hearing included over $110,000.00 in medical bills and almost a year of TTD benefits ($38,000.00) plus potential exposure for a significant wage loss claim.

The claimant in this case was a 52 year old union painter who testified that he frequently climbed ladders, kneeled to paint baseboards, lifted heavy buckets of paint and performed other job duties that aggravated his osteoarthritis in both knees, requiring bilateral arthroplasties. However, the evidence showed that the claimant had sought treatment for severe “bone on bone” osteoarthritis in both knees prior to being hired by the respondent, that he was not forthcoming during his pre-employment physical about his medical history, that he had no specific trauma to his knees while working for the respondent and that he failed to report his symptoms to the respondent in a timely manner.

The Arbitrator found that parts of the claimant’s testimony were not credible, including his description of his job duties (which was inconsistent with that of his supervisor) and his explanation as to why he was not truthful during his pre-employment physical.  The Arbitrator also found the claimant not credible when he alleged ignorance about repetitive trauma conditions when his resume clearly showed he had experience as a field supervisor and had filed five prior worker’s compensation claims.  In finding for the Respondent, the Arbitrator also gave greater weight to the testimony of Dr. James Cohen, the respondent’s IME physician, who opined that the petitioner’s bilateral knee condition was purely degenerative due to advanced arthritis which pre-existed when the petitioner was hired, that the claimant would have needed knee replacements even if he had not worked for the respondent and that the claimant’s job duties neither caused nor accelerated his knee osteoarthritis. The cases are pending on review.

Workers’ Compensation Preferred Provider Programs Approved

The Illinois Department of Insurance has announced the approval of three workers’ compensation Preferred Provider Programs: Corvel, Coventry and HFN.

Their contact information can be found here.

We are not yet aware of the specific providers in the Corvel or Coventry networks.  The members of the HFN network can be found here.

I&F Announces 2012 Docket Coverage

As you know, the IWCC has significantly changed the prior venue system with the creation of the so-called “Super Venue” system which divides the state into geographic areas composed of three smaller hearing sites.  Inman and Fitzgibbons will continue its practice of assigning a dedicated attorney or attorneys to the individual hearing sites to cover the status calls. The updated coverage list with links to the assigned attorney appears below:

VENUE  /  COUNTY  /  ATTORNEY

• Bloomington (McLean County); Stephen M. McClary and Colin M. Mills

• Chicago (Cook County); All Attorneys

• Collinsville (Madison County/St. Clair County); Mark S. Carter and Kevin J. Deuschle

• Geneva (Kane County); G. Steven Murdock and Kristin A. Thomas

• Herrin (Williamson County/Franklin County); Kevin J. Deuschle and Lauren E. Zimmer

• Joliet (Will County); Jill A. Baker and Mark S. Carter

• Kewanee (Henry County); Scott C. McCain and Kristin A. Thomas

• Mount Vernon (Jefferson County); Scott C. McCain and Kristin A. Thomas

• Ottawa (LaSalle County); Kevin J. Deuschle and Kristin A. Thomas

• Peoria (Peoria County); G. Steven Murdock, Judy A. Nash, and Jynnifer E. Bates

• Quincy/Winchester (Adams County/Scott County); Lauren E. Zimmer

• Rockford (Winnebago County); Terrence M. Donohue, Cynthia A. Freund, and Jynnifer E. Bates

• Springfield/Carlinville (Sangamon County/Macoupin County); Lauren E. Zimmer and Jack M. Shanahan

• Urbana (Champaign County); Colin M. Mills and Lauren E. Zimmer

• Waukegan (Lake County); Judy A. Nash and Scott C. McCain

• Wheaton (DuPage County); Terrence M. Donohue, Kathleen T. Ulbert, and Jynnifer E. Bates

• Woodstock (McHenry County); Mark S. Carter and Kathleen T. Ulbert

2012 Fee Schedule is Online

The IWCC has announced that the 2012 Fee Schedule is online.

To view the fee schedule rates for 2012, click here.

Note that the 2012 rates have been separated into hospital and nonhospital sections. You can only obtain information from one section at a time. Click on the region to see a list of counties in that region.

For 2006-2011, click the “archived fee schedule” button.

Thorough Witness Prep Produces Recent I&F Win

At times Respondents are presented with scenarios where the medical evidence and histories appear very consistent and contemporaneous with the accident and the defense largely consists of a supervisor or co-worker testifying that the Petitioner said he injured himself outside of work. The importance of developing and nurturing that witness testimony into even more evidence was illustrated in a recent favorable decision for I&F.

In that case petitioner had filed Petitions under Sec. 8(A) and 19(b) and a Penalties Petition, demanding authorization for knee surgery and prior and ongoing TTD benefits. Petitioner alleged that on August 8, 2011 he injured his knee while pushing a cart of laundry up an incline at work. Petitioner went to the ER that day with knee pain and gave a history of injuring his knee pushing a cart at work, although the date referenced was one week prior. He followed up 3 days later providing the same mechanism of injury, but this time stated that it occurred 3 days ago. He then had an MRI 5 days later which showed a torn medial and lateral meniscus with effusion. Two different board certified orthopedic surgeons both then obtained consistent histories of the accident, and related the condition and the need for surgery to the accident. There was no medical evidence of prior knee treatment. Our defense as trial started consisted of: the initial medical note with a one week prior date reference; the expected testimony of a supervisor that Petitioner told him a couple of weeks prior to the alleged accident date that his knee was hurting; and an IME that despite the MRI tears, that Petitioner suffered only a strain from the accident and that pushing a cart could not have caused the tears.

I&F Attorney Terry Donohue met at great length with the supervisor in an effort to uncover all potentially helpful information for our defense. On the morning of trial, the supervisor observed another employee of Respondent present, apparently as an occurrence witness for Petitioner. The supervisor and Attorney Donohue then had work attendance records immediately faxed over showing that this employee could not have worked the day of the alleged accident. Then during direct examination, Petitioner and his witness both testified that the witness was there and witnessed the event and physically helped the Petitioner after it occurred. They both committed to this version of events during cross examination. Our supervisor then testified that Petitioner advised him his knee was hurt before the alleged accident date, and further presented the critical documentation that the supposed witness did not even work that day.

This was subsequently met with a series of objections, and vigorous cross examination of our supervisor regarding the possibility of error in these records. The supervisor patiently explained the accuracy of the attendance system, which was based on individual hand print scans, and the impossibility that the witness worked that day. Petitioner was even given a continuance to bring in rebuttal witnesses. This only resulted in our securing more complete documentation and even another witness to testify that petitioner’s alleged witness was definitely not at work that day, and that Petitioner also told her that his knee was hurting previously. Petitioner’s rebuttal witnesses were not helpful and his case grew progressively worse and less believable.

The arbitrator found Petitioner and his witness were not credible and held that Petitioner had failed to prove a compensable accident. Petitioner’s request for nearly a year in TTD as well as the prospective knee surgery were all denied.

Happy Holidays

Inman and Fitzgibbons wishes you and your families a happy and healthy Holiday Season and New Year.

I&F Case Study: The IME and Issues of Necessary Medical Treatment

Although reasonable people might disagree as to the benefits of chiropractic care in the WC arena, there is no arguing the fact that a long term course of care with a chiropractor for a back injury can lead to a difficult claim.  It’s also no secret that the Commission can express a preference for the opinions of treaters as opposed to IMEs on questions of necessary medical care.   That said, a recent case litigated by Jack Shanahan of I&F shows us the importance of not giving up on a good IME opinion in this situation.

In this case the Commission upheld a favorable decision by the Arbitrator on a disputed back injury claim in which petitioner underwent years of dubious chiropractic care, and ultimately was recommended for a lumbar fusion surgery by a doctor affiliated with the chiropractic clinic.  The Arbitrator adopted our IME opinion and denied our liability for any medical bills following the August 29, 2008 IME.  In addition, the Arbitrator adopted our Utilization Review report and denied most of the chiropractic care, even some that preceded August 29, 2008.

By virtue of the Arbitrator’s finding on causal connection, the Arbitrator denied petitioner’s request for over one year in additional TTD benefits, close to $40,000.00 in submitted medical bills, and severely reduced the demanded 25% man as a whole PPD award.  In the end, respondent owed petitioner no benefits whatsoever for TTD after prior credits were counted, and the Arbitrator found that a prior PPD advance was sufficient for petitioner’s PPD award.  The Commission affirmed the decision following Petitioner’s review.

I&F prevails where legal secretary cannot establish manifestation date of condition

I&F recently scored another repetitive trauma win when the Commission affirmed an Arbitration decision finding that petitioner failed to prove the manifestation date of her condition.  In this case, the petitioner began working for the respondent as a legal secretary in 1990. She filed two repetitive trauma claims against the respondent alleging that her job duties had caused bilateral carpal tunnel syndrome. In one case, she alleged an accident date of August 23, 2005. In the other case, she alleged an accident date of June 30, 2006. The cases were consolidated and tried together. Inman & Fitzgibbons represented the respondent for the alleged August 23, 2005 date of accident. The defense of the other case was handled by a different firm.

At trial, the petitioner testified that she was working on a “big case” in August of 2005, and that she told her supervisor on August 23, 2005 that her hands were bothering her. An ergonomic keyboard was provided on August 23, 2005. The petitioner didn’t seek treatment for carpal tunnel symptoms until June 30, 2006, and she was not formally diagnosed with carpal tunnel syndrome until March 2007. The petitioner didn’t miss any time from work until August 10, 2006, at which time she moved to Texas in part because she thought taking a break from work and resting her hands might help. The petitioner admitted at trial that she know nothing about carpal tunnel syndrome and didn’t have time to investigate what it was when she moved to Texas in August of 2006.

We argued that under the Illinois Supreme Court case of Durand v. Industrial Commission, 224 Ill.2d 53 (2007), the petitioner failed to prove a manifestation date of August 23, 2005. In Durand, the court expressed a preference for setting the manifestation date on either the date on which the petitioner requires medical treatment or the date on which a petitioner can no longer perform work activities.  Given that the petitioner didn’t seek treatment until June 30, 2006 and didn’t miss any time from work until August 10, 2006, the Arbitrator agreed that the petitioner didn’t meet her burden of proving a manifestation date of August 23, 2005. The fact that she wasn’t diagnosed with carpal tunnel syndrome until March 2007 and that she acknowledged not knowing about carpal tunnel syndrome in August 2006 also doomed her attempt to establish a manifestation date of August 23, 2005. All benefits were awarded on the companion case involving the alleged accident date of June 30, 2006.

The petitioner’s attorney appealed the Arbitrator’s decision and oral arguments were held. In a unanimous decision, the Commission affirmed the decision of the Arbitrator. The petitioner did not appeal to the Circuit Court.  Congratulations to Scott McCain for the great result.

I&F wins where petitioner fails to carry burden of proof

The Commission recently reversed an unfavorable decision by the Arbitrator as to our client’s liability for renewed treatment and lost time five months after the prior treating physician deemed the claimant at MMI. Our client had paid benefits on a repetitive trauma claim for a couple of years through surgery and follow up care necessitated by the petitioner’s persistent ongoing complaints. In July of 2009, the treating surgeon determined that no further care was necessary and that petitioner was capable of continuing in her regular job.

Petitioner continued to have complaints in her hand and arm, and sought treatment with a new physician in November of 2009. This doctor took petitioner off of work, and ultimately performed new surgery after an MRI showed findings “vastly different” from a prior MRI done by the previous physician. The new doctor testified via report that he had a “passive understanding” of petitioner’s job duties and their relation to her symptoms, but noted he would need more information concerning her job and her prior medical condition to opine on causation.

Despite this obvious hole in petitioner’s case, the Arbitrator found causal connection between the treatment and lost time commencing in November 2009 and the work accident alleged in our case. Following briefing and oral argument on Review, the Commission agreed with us that petitioner failed to carry her burden of proof of causation between the renewed treatment in November 2009 and the work accident. In so doing, the Commission reversed nearly two years of TTD exposure and tens of thousands of dollars in medical bills. The decision also lowers the potential PPD value of the injury, and cuts off our client’s liability for ongoing medical care. We are now looking at a PPD award or settlement based solely on the first surgery the petitioner underwent following our work accident.

BOTTOM LINE: A basic principle of Illinois Worker’s Compensation is that the petitioner maintains the burden of proving all of the elements of his or her claim. Even though repetitive trauma claims have historically been notoriously difficult to defend in Illinois, this case illustrates how experienced counsel can assist in determining when benefits are proper.

Congratulations to Jack Shanahan for the outstanding result.

Arbitrator Jerry Jutila passes away

The IWCC has announced that Arbitrator Jerry Jutila passed away on December 8, 2012. Arbitrator Jutila joined the Commission as an arbitrator in 2004, served as acting chairman in 2008, then returned to his arbitrator position. He was widely respected as an intelligent, thoughtful, and fair person.

While he struggled with his illness, Arbitrator Jutila worked on a document, “Lessons Learned on the Eighth Floor,” intended to help train the new arbitrators. It was just distributed to arbitrators this past week. Full of practical advice, writing tips, humor, and gentle guidance (“Listen to the other side.” “We are public servants and have a duty to be helpful.”), he told arbitrators, “At the end of the day, you are going to derive a great deal of satisfaction” from helping people resolve conflicts.

Before coming to the Commission, Arbitrator Jutila represented injured workers for decades, at the firms May, Decker and Associates; Collins, Jutila and Shovlain; and Gibson and Kopsick.

He was a Life Fellow of the Illinois State Bar Association since 1996 and was a member of numerous professional law associations and was honorably discharged from the U.S. Air Force Security Service, where he served as Staff Sergeant and Intelligence Analyst.

Inman and Fitzgibbons offers its condolences to Arbitrator Jutila’s wife, Barb, and their extended circle and echoes the statement of the Commission that his passing is an enormous loss.

Changes continue at IWCC

The IWCC announced today that Governor Quinn has appointed Ruth White as a commissioner. Nancy Lindsay, formerly appointed to the Commission to serve as the employer representative on Panel B, has now been appointed to serve as an arbitrator. This week, Arbitrator Mathis will cover former Arbitrator White’s Springfield call, and Arbitrator Lindsay will observe as part of her training.

Arbitrator Tobin appointed to bench

Arbitrator Jeffrey Tobin has been appointed to fill a judicial vacancy in the Seventh Judicial Circuit in the Jacksonville area. He will no longer hear workers’ compensation cases. He will spend the next weeks writing his outstanding decisions.

In November, Arbitrator Falcioni will cover the Mt. Vernon call, while Arbitrator Luskin will handle Urbana, and Arbitrator Andros will appear in Decatur.

Governor Quinn announces appointments of 7 Commissioners

More news from the Governor’s office:

Governor Pat Quinn today announced the appointments of 7 commissioners to the Illinois Workers’ Compensation Commission (IWCC). Commissioners review workers’ compensation appeals, and today’s appointments relate to the package of reforms to the workers’ compensation system that Governor Quinn led through the General Assembly and signed earlier this year.

“We set out to review and reform our entire workers’ compensation system in Illinois, and that’s what we have done,” Governor Quinn said. “Our reforms continue protections for workers, while also saving our businesses millions and improving Illinois’ business climate. These commissioners will ensure that Illinois workers’ compensation cases are judged fairly so that workers and business can have confidence in our system.”

Commissioners sit on one of three IWCC panels that review appeals by petitioners or respondents to an arbitrator’s decision. To ensure balanced reviews, each panel consists of three commissioners: a commissioner representing the public, a labor commissioner representing the employee community, and a business commissioner representing the employer community.

The Governor appointed commissioners to seven positions that were on expired terms. Five commissioners were reappointed. Commissioner Molly Mason was appointed as an arbitrator on Friday. Three commissioners, Yolaine Dauphin, Thomas Tyrrell, and Chairman Mitchell Weisz, are in the midst of four year terms, set to expire on Jan. 21, 2013.

Commissioners by panel:	Panel A	Panel B	Panel C
Employee representatives:	Thomas Tyrrell	Charles DeVriendt	David Gore
Public representatives:	Daniel Donohoo	Yolaine Dauphin Michael	Paul Latz
Employer representatives:	Kevin Lamborn	Nancy Lindsay	Mario Basurto

 

Governor Quinn has appointed:

• Mario Basurto of Cook County has more than 15 years of experience as an attorney and legal supervisor and has been a commissioner with the Illinois Workers’ Compensation Commission since 2005. Previously, Mr. Basurto worked as an attorney for the firm Dranias, Harrington & Wilson, and as an in-house trial attorney and assistant legal supervisor for the Law Offices of Lauren Meachum, where he was exclusively responsible for over 70% of the firm’s largest corporate client, United Parcel Service. Mr. Basurto is an active member in such organizations as the Chicago Bar Association, the Hispanic Lawyers Assication and the Puerto Rican Lawyers Association. He received a J.D. and a B.A. from the University of Illinois. Mr. Basurto will be serving as a Commissioner on Panel C.

• Charles DeVriendt of Will County has nearly 30 years of experience as a workers’ compensation attorney through his private practice, DeVriendt and Associates, and has served as an arbitrator with the Illinois Workers’ Compensation Commission since 2004. Mr. DeVriendt previously served as Assistant General Counsel at the Chicago Park District, Assistant Corporation Counsel at the City of Chicago and served as a police officer at the Chicago Police Department. He holds a J.D. from DePaul University, and a B.A. from St. Joseph College. Mr. DeVriendt will be appointed as a Commissioner on Panel B.

• Daniel R. Donohoo of Madison County has more than 25 years of experience as a CPA and county recorder and has served as a Commissioner with the Illinois Worker’s Compensation Commission since May of 2010. Mr. Donohoo served for over 20 years as the recorder for Madison County in addition to being a board member for four years. He has worked at the firms Schoppet & Schoppet and Croxford, Donohoo & Co. Mr. Donohoo is a member of ABA, ISBA, AICPA and ILCPA and has been a member of Governor Quinn’s Taxpayer Action Board. He holds a J.D. from Thomas L. Cooley Law School and a B.A. from Southern Illinois University-Edwardsville. Mr. Donohoo will be serving as a Commissioner on Panel A.

• David L. Gore Jr. of Will County has nearly 20 years of experience as an attorney and has served as a commissioner with the Illinois Workers’ Compensation Commission since 2006. Previously, he was a partner at the firm Gore & Gore, specializing in workers compensation cases. Mr. Gore has also served as Assistant State’s Attorney for Chicago, staff attorney with the Illinois Legislative Reference Bureau and Contract Administrator for an intellectual property protection company. In addition, he has served as staff representative of the United Steelworkers of America, ALF-CIO-CLC. Gore holds a J.D., an M.A. and a B.A. from University of Illinois at Urbana-Champaign. Mr. Gore will be serving as a Commissioner on Panel C.

• Kevin W. Lamborn of DuPage County has more than 20 years of experience as a prosecutor in several divisions of the Cook County States’ Attorney and has served as a commissioner with the Illinois Workers’ Compensation Commission since 2007. Mr. Lamborn previously worked as an attorney and partner for the firm McAuley & Lamborn and as an associate attorney for the municipal practice law firm Storino, Ramello & Durkin. He holds a J.D. from The John Marshall Law School and a B.A. from Valparaiso University. Mr. Lamborn will be serving as a Commissioner on Panel A.

• Michael Paul Latz of Cook County has more than 20 years of experience as an attorney in private practices and in the public sector. Mr. Latz is currently Of Counsel with the firm Ancel Glink Diamond Bush DiCianni & Kraftheffer. Previously, he was an associate and partner for Bollinger, Rueberry & Garvey and associate at Potter & Schaffner and O’Conner, Schiff & Meyer. He has also served as assistant state’s attorney for Cook County. He holds a J.D. and a B.A. from University of Notre Dame. Mr. Latz will be serving as a Commissioner on Panel C.

• Nancy H. Lindsay of Sangamon County has more than 30 years of experience as an attorney specializing in workers’ compensation and has served as a commissioner with the Illinois Workers’ Compensation Commission since 2006. Previously, Ms. Lindsay taught business law at Illinois College in Jacksonville for nearly 20 years. She has served as a member and president for the Morgan County Bar Association and is currently a member of the Illinois State Bar Association. Ms. Lindsay holds a J.D. from Saint Louis University School of Law, a M.A. from Sangamon State University and a B.A. from Illinois College. Ms. Lindsay will be serving as a Commissioner on Panel B.

Arbitrator coverage announced for October

News from the IWCC.  In the wake of the recent terminations, an while we wait for the new appointees to complete their training, the calls of former arbitrators for the rest of October will be handled as follows:

Former arbitrator	Arbitrator
DeVriendt	Mason
Galicia	Black
Giordano	Falcioni
Hagan	Pulia
Lammie	Cronin
Nalefski	Mathis
Peterson	Dollison
Prieto	Pulia 10/17; Kane thereafter

 

Also, Arbitrators Jutila (Chicago) and Neal (Collinsville) are out on medical leave. Arb. Jutila’s call will be handled by Arb. Williams; various arbitrators will cover for Arb. Neal.

All tried-but-undecided cases will be redistributed soon among arbitrators. Partially tried cases will also be reassigned among arbitrators. The Commission will prepare and pay for a transcript. If parties want a new trial, they can present a motion immediately to the newly assigned arbitrator, who will determine if sufficient cause exists to grant a new trial. 

There will be no pro se arbitrator during October. The IWCC requests that settlement contracts be sent to the assigned or covering arbitrator. 

Governor Quinn Announces New Arbitrators

Governor Pat Quinn today announced the appointments of 29 arbitrators in Illinois’ workers’ compensation system.  The appointments are part of a package of reforms to the workers’ compensation system that Governor Quinn pushed through the General Assembly and signed earlier this year.

“These arbitrator appointments are a key step in ensuring that our workers’ compensation system is professional, transparent, and fair for both workers and employers,” Governor Quinn said. “These reforms are crucial to improving Illinois’ business climate, and this new group of arbitrators will be the most credentialed and experienced group of professionals Illinois has ever had in place to judge workers’ compensation cases.”

Under the new law, all newly-appointed arbitrators must be attorneys. Five sitting arbitrators who are not attorneys were reappointed based on their years of experience and exemplary performance, as allowed under the reform law. In total, 24 of the 29 total arbitrator appointees are attorneys.

Nine sitting arbitrators were not reappointed by the Governor: John Dibble, Gilberto Galicia, James Giordano, Kathleen Hagan, Robert Lammie, Andrew Nalefski, Richard Peterson and Joseph Prieto. One arbitrator, Charles DeVriendt, will be appointed to the Commission. Former arbitrator Jennifer Teague resigned as of July 30, 2011.

Governor Quinn has appointed:

• Peter Akemann of Kane County has more than 10 years of experience in State government and has been with the Illinois Workers’ Compensation Commission since 1994. Previously Mr. Akemann worked as a regional claims manager for the Illinois Department of Transportation, is the President of the Children’s Theatre of Elgin / Fox Valley Theatre Co., and has been an active member of community organizations such as the YMCA and the Youth Leadership Academy. He holds a master’s of education from Northern Illinois University, an M.A. from Northwestern University, and a B.S. from Brigham Young University. Mr. Akemann has been appointed to a 1-year term as an arbitrator.

• George Andros of Cook County has more than 30 years of experience practicing law and has been with the Illinois Workers’ Compensation Commission since 2005. Mr. Andros holds a J.D. from DePaul University and a B.S. in Management from Northern Illinois University. Previously he was an instructor in real estate law at South Suburban and Moraine Valley Colleges, a senior member of the City of Palos Hills Planning and Zoning Commission, a speaker at the University of Chicago Center for Continuing Education on Medical-legal issues and a speaker for the Illinois Institute of Continuing Legal Education. Mr. Andros has been appointed to a 1-year term as an arbitrator.

• Milton Black of Lake County has more than 30 years of experience in civil litigation with an emphasis on workers’ compensation, negligence and wrongful death. Mr. Black has been with the Illinois Workers’ Compensation Commission since 2004, while serving on the Board of Directors of the Workplace Injury Litigation Group, the American Bar Association Employer Liability Section and Trial and Insurance Practice Section. He holds a J.D. from DePaul University. Mr. Black has been a lecturer at numerous workplace injury and workers’ compensation seminars and was appointed to the Select Committee of Judges and Lawyers by the Illinois Supreme Court. Mr. Black has been appointed to a 3-year term as an arbitrator.

• Kurt Carlson of Cook County has more than 15 years of experience as a workers’ compensation attorney, and has been an arbitrator with the Illinois Workers’ Compensation Commission since 2004. Previously he represented both employers and injured workers at the Macey, Chern and Diab, Teplitz & Bell, and Power & Cronin law firms. Mr. Carlson also served in the U.S. Army Medical Corp before obtaining his B.A. from the University of Wisconsin and a J.D. from the John Marshall Law School in Chicago. Mr. Carlson has been appointed to a 2-year term as an arbitrator.

• Brian Cronin of Cook County has more than 20 years of experience in the finance and business, and has been an arbitrator at the Illinois Workers’ Compensation Commission since 1996. Previously Mr. Cronin was an independent and head trader, broker, trading floor manager and an options specialist for several firms, including the Chicago Board of Trade, Barclays Bank, and O’Connell & Piper Associates. He holds an MBA in Finance and Business Policy from the University of Chicago, and an MBA in Management and Finance from the University of Notre Dame. Mr. Cronin has been appointed to a 2-year term as an arbitrator.

• Carolyn Doherty of DuPage County has more than 20 years of experience in workers’ compensation, insurance law, and has served as an attorney with the Illinois Workers’ Compensation Commission since 1998. Ms. Doherty also serves as an Arbitrator in Cook and DuPage County Mandatory Arbitration systems on a rotational basis. She holds a J.D. from the John Marshall Law School and a B.A. from Marquette University, and previously worked as an associate at the Sedgwick, Detert, Moran and Arnold, Hanson & Peters, and Schoen & Smith law firms. Ms. Doherty has been appointed to a 2-year term as an arbitrator.

• Greg Dollison of Cook County has more than 20 years of experience with the Workers’ Compensation Commission as a review coordinator, and has moderated negotiations between employers and union representatives. He has served as an arbitrator for the IWCC since 2004. Mr. Dollison has B.S. in City and Regional Planning from the Illinois Institute of Technology and attended Roosevelt University. Mr. Dollison has been appointed to a 2-year term as an arbitrator.

• Anthony Erbacci of Cook County has more than 25 years of extensive experience in State government and insurance and labor law. He has served as a staff attorney at the Illinois Workers’ Compensation Commission since 1996 and has been an arbitrator since 1997. Previously Mr. Erbacci served as the Deputy General Counsel of Office of the Special Deputy Receiver, Inc., as Deputy Director of Statewide Enforcement and Chief of Medical Prosecutions at the Illinois Department of Professional Regulation, and as Counsel for the Illinois Department of Labor. He received a J.D. from the John Marshall Law School and a B.A. from DePaul University. Mr. Erbacci has been appointed to a 3-year term as an arbitrator.

• Robert Falcioni of Will County has served as a staff attorney and as Acting Commissioner at the Illinois Industrial Commission (Illinois Workers’ Compensation Commission), and has been an arbitrator since 1997. He has more than 20 years of law experience is an adjunct faculty member and instructor of the paralegal program at South Suburban College. Previously Mr. Falcioni was managing partner at Falcioni and Britt, after serving as an attorney at the Charles R. Stone, Hyatt Legal Services and Zalutsky, Pinski and DiGiacamo law firms. He holds a J.D. from Chicago-Kent School of Law at the Illinois Institute of Technology and a B.S. from Illinois State University. Mr. Falcioni has been appointed to a 3-year term as an arbitrator.

• Barbara Flores of Cook County brings more than five years of law experience as Corporate Counsel of Alden Management Services, previously in the Labor and Employment law department at the U.S. Postal Service, and as an Assistant Attorney General in the Labor and Employment Unit at the Office of the Attorney General. Ms. Flores also previously worked at the firm Rock, Fusco and Garvey and at the AIDS Legal Council of Chicago. She holds a J.D. from Chicago-Kent School of Law at the Illinois Institute of Technology, and a B.S. from the University of Illinois. Ms. Flores has been appointed to a 2-year term as an arbitrator.

• Joann Fratianni-Atsaves of Lake County has more than 30 years of workers’ compensation law experience, having served as a Commissioner (Public Member) for three years and as an arbitrator with the Illinois Workers’ Compensation Commission since 1993. She previously has worked at the Anthony V. Fanone and Osterkamp, Jackson and Hollywood law firms, is a Fellow of the Illinois Bar Foundation, current assembly member of the Illinois State Bar Association, and a member of the Lake County Bar Association Board of Directors. She received J.D. from Northern Illinois University and a B.A. from the University of Illinois. Ms. Fratianni-Atsaves has been appointed to a 3-year term as an arbitrator.

• Gerald Granada of Cook County has 17 years of experience of workers’ compensation law, and is currently an Associate Attorney at Ancel, Glink, Diamond, Bush, DiCianni & Rolek. Previously, he worked as a civil trial and workers’ compensation defense attorney at Meachum, Spahr, Cozzi, Postel, Zenz & Matyas, and as an associate attorney at Cullen, Haskins, Nicholson & Menchetti. Mr. Granada has been appointed to a 1-year term as an arbitrator.

• Douglas Holland of LaSalle County has more than 20 years of experience with the Illinois Workers’ Compensation Commission. Mr. Holland has served as an arbitrator with the Commission since 1989, and prior to that served for three years as a Commissioner. He is a farmer and entrepreneur, and holds a B.A. from Sangamon State University, and attended Illinois Valley Community College. Mr. Holland has been appointed to a 1-year term as an arbitrator.

• Gerald Jutila of Cook County brings more than 30 years of experience representing injured or deceased workers and their families. He has served as Acting Chairman of the Illinois Workers’ Compensation Commission, and has been an arbitrator since 2004. Previously he was an attorney at May, Decker and Associates, managing partner at Collins, Jutila and Shovlain, and counsel at Gibson and Kopsick. Mr. Jutila is a Life Fellow of the Illinois State Bar Association since 1996 and has been a member of numerous professional law associations. He was honorably discharged from the U.S. Air Force Security Service, where he served as Staff Sergeant and Intelligence Analyst. Mr. Jutila has been appointed to a 1-year term as an arbitrator.

• David Kane of Cook County has 30 years of overall workers’ compensation law experience as a staff attorney and a former Acting Commissioner of the Illinois Industrial Commission (Illinois Workers’ Compensation Commission). He has been an arbitrator since 1990. He holds a J.D. from DePaul University and a B.A. from Northwestern University. Mr. Kane has been appointed to a 3-year term as an arbitrator.

• Svetlana Kelmanson of Cook County brings eight years of law experience, having served as a staff attorney at the Illinois Workers’ Compensation Commission, and as a law clerk at the Appellate Court of Illinois First District. Ms. Kelmanson also worked at the Law Offices of Chicago-Kent College of Law’s Low-Income Taxpayer Clinic and the Employment Discrimination / Civil Rights Clinic, and at the law firm Sachnoff & Weaver. She holds J.D. with high honors from Chicago-Kent College at the Illinois Institute of Technology and a B.S. from the University of Illinois. Ms. Kelmanson has been appointed to a 3-year term as an arbitrator.

• Jacqueline Kinnaman of Cook County has served as a Commissioner of the Illinois Industrial Commission (Illinois Workers’ Compensation Commission) for more than 10 years, and has been an arbitrator since 2004. Ms. Kinnaman previously represented public employees as an attorney for the American Federation of State, County and Municipal Employees (AFSCME) Council 31, and as General Counsel of the West Virginia Education Association. She attended the University of Wisconsin Law School, during which she also worked in the legal counsel office of Governor Schreiber. Ms. Kinnaman has been appointed to a 1-year term as an arbitrator.

• Edward Lee of DuPage County has more than 30 years of overall workers’ compensation law experience. He served as a U.S. Army Armor Officer, representing soldiers or the Army in court martial cases. Mr. Lee worked in private practice specializing in workers’ compensation law, representing both respondents and petitioners. He has been an arbitrator at the Illinois Workers’ Compensation Commission since 1997, and in 2004 served on the Review Board dealing with disciplinary issues concerning Arbitrators and Commissioners. He holds a law degree from John Marshall Law School and attended Tulane University for his undergraduate studies. Mr. Lee has been appointed to a 2-year term as an arbitrator.

• Joshua Luskin of Cook County has 15 years of law experience and is currently a partner at the law firm Nyhan, Bambrick, Kinzie & Lowry, specializing in workers’ compensation. Previously, Mr. Luskin has served as an arbitrator with the Cook County Mandatory Arbitration program, a Lieutenant in the U.S. Navy Judge Advocate General’s Corps as a prosecutor, as counsel of the Champaign County State’s Attorney’s Appellate Prosecutor and a Champaign County Assistant State’s Attorney. He holds a J.D. from University of Michigan and a B.A. from Macalester College. Mr. Luskin has been appointed to a 2-year term as an arbitrator.

• Molly Mason of Cook County has more than 25 years of workers’ compensation law experience, served as a Commissioner with the Illinois Workers’ Compensation Commission since 2007 and as a staff attorney since 2003. Ms. Mason previously worked at law firms Corti, Freeman & Aleksy, and Burke & Burke, and has published several articles in the Illinois Bar Journal. She holds a J.D. from Loyola University, and a B.A. from Harvard University. Ms. Mason has been appointed to a 2-year term as an arbitrator.

• Stephen Mathis of Sangamon County served for 10 years as Legal Counsel and Staff Analyst for the Illinois Senate Staff, and has been an arbitrator with the Illinois Workers’ Compensation Commission since 1996. He holds a J.D. from John Marshall Law School and a B.S from the University of South Florida and has more than 20 years of workers’ compensation law experience. Mr. Mathis has been appointed to a 1-year term as an arbitrator.

• Neva Neal Mundstock of Sangamon County has more than 25 years of experience in workers’ compensation and has been an arbitrator at the Illinois Workers’ Compensation Commission since 1981. She has studied Administrative Law and the National Judicial College and holds a B.A. from the University of Illinois at Springfield. Ms. Neal Mundstock has been appointed to a 1-year term as an arbitrator.

• Peter O’Malley of DuPage County has more than 20 years of workers’ compensation experience as a staff attorney of the Illinois Workers’ Compensation Commission since 1995 and as an arbitrator since 2003. Previously Mr. O’Malley represented petitioners and respondents in workers’ compensation cases at Kubiesa, Power &Cronin and Bullaro, Carton & Stone. He holds a J.D. from the John Marshall Law School and a B.S. from Marquette University. Mr. O’Malley has been appointed to a 1-year term as an arbitrator.

• Maureen Pulia of Cook County brings extensive experience in business, government and workers’ compensation. She has been a staff attorney for Illinois Workers’ Compensation Commission and has been an arbitrator since 2003. Previously, Ms. Pulia was the Director of Access Health, Trustee of the Village of Westchester, and product manager of systems and management at Baxter Healthcare. She holds a J.D. and a B.S. from DePaul University. Ms. Pulia has been appointed to a 1-year term as an arbitrator.

• Deborah Simpson of Kane County has more than 25 years of government and law, having served since 2000 in the Office of the Illinois Attorney General’s Administrative Review / Civil Prosecutions Unit. Previously Ms. Simpson was attorney at the State’s Attorney’s Offices for Kane, Vermilion and Cook Counties. She has been a part-time instructor at the Danville Area Community College, and is a member of several community organizations. She holds a J.D. from the John Marshall Law School and a B.A. from DePaul University. Ms. Simpson has been appointed to a 2-year term as an arbitrator.

• Lynette Thompson-Smith of Cook County has been Special Assistant Attorney General of the Illinois Industrial Commission Bureau since 1989. Her previous experience includes working as an Associate at the City of Chicago’s Office of the Corporation Counsel prosecuting license violations, as a law clerk at the Circuit Court of Cook County and as a law clerk at the Office of the Cook County Public Defender. She received a Certificate of Completion from the International Workers’ Compensation College of the International Association of Industrial Accident Boards and Commissions at Salve Regina University, Rhode Island and received her Doctorate at Rutgers School of Law in 1983. Ms. Thompson-Smith has been appointed to a 3-year term as an arbitrator.

• Jeffrey E. Tobin of Morgan County has been an arbitrator with the with the Illinois Workers’ Compensation Commission since 2004. Mr. Tobin holds a J.D. from T.M. Cooley Law School. Prior to joining the Commission, Mr. Tobin worked at Pratt & Tobin, P.C. from 2000 through August 2002 resolving workers’ compensation claims. In 2002, Mr. Tobin was Partner at Thomson, McNeely & Tobin, P.C. handling workers’ compensation and personal injury claims. Mr. Tobin has been appointed to a 2-year term as an arbitrator.

• Ruth White of Sangamon County has been an arbitrator with the Illinois Workers’ Compensation Commission for the last 30 years. Ms. White graduated from the University of Illinois, College of Law in 1973 and started working at the Law Office of Richard Grummon. Ms. White served as special Assistant to the Attorney General from 1976-1978 and joined the Workers’ Compensation Commission (formerly known as the Industrial Commission) in 1979. Ms. White has been appointed to a 1-year term as an arbitrator.

• Robert Williams of Cook County has more than 30 years of experience practicing law in government and in the private sector, and has been an arbitrator with the Illinois Workers’ Compensation Commission since 1997. Previously, Mr. Williams has served as Chief of the Chicago Industrial Commission bureau of the Office of the Illinois Attorney General, as legal counsel for the Illinois Office of the Comptroller and as corporate counsel in the City of Chicago’s law department. He also was an associate at Washington, Kennon, Bryant & Hunter, holds an MBA from the University of Illinois, a J.D. from Loyola University, and a B.S. from Le Moyne-Owen College. Mr. Williams has been appointed to a 2-year term as an arbitrator.

IWCC affirms an Inman & Fitzgibbons win based upon Dr. Shermer’s IME

It is often said that in a battle of opposing medical opinions (treating physician vs. IME), odds are usually in favor of the claimant that her physician’s opinions will be adopted over those of the respondent’s IME.  This is not always the case, such as in a victory by Steve Murdock with the assistance of a Dr. Shermer IME opinion.

 

In a case involving a back strain superimposed on pre-existing degenerative lumbar disk disease and for which medical treatment continued for more than four years, the IWCC drew the line on the date of Dr. Shermer’s second evaluation of the claimant when he determined the claimant had had more than enough treatment for the injury, which he described simply as a lumbar strain, and had reached MMI without any documented basis for additional treatment or restrictions.  Several thousands of dollars of medical treatment were incurred by the claimant subsequent to this evaluation, but liability for this was denied by the IWCC as unrelated and unnecessary.  The IWCC Commission panel affirmed the arbitrator’s findings in which he adopted Dr. Shermer’s opinions.

 

We commend the Illinois Workers’ Compensation Commission for drawing a line in this case and putting a stop to what we believe was unnecessary and unreasonable medical treatment and ongoing functional restrictions that were simply unsupported by the treating medical documentation.

 

So What’s Happening with the WC Reform?

As we’ve reported in past blog posts, amendments to the Workers’ Compensation Act were passed into law this summer, with many of the provisions taking effect on or before September 1, 2011, including changes with and at the Illinois Workers’ Compensation Commission. In addition to the termination of all existing IWCC Arbitrators on July 1, 2011, the Illinois Workers’ Compensation Commission WC Advisory Board was also terminated and a new Board appointed. The IL WC Advisory Board is now responsible for review applications of those interested in serving as IWCC Arbitrator, including those arbitrators who were terminated on July 1, 2011 interested in returning to the position.

The WC Advisory Board has reviewed several applications, and we believe they have a “short list” of those in the running to serve as IWCC Arbitrators. However, we have not been privy to any insider information as to which arbitrators may be returning, and which ones may be leaving. Stay tuned for updates as we monitor this very closely.

A new WC Medical Fee Advisory Board has also been appointed by the Governor consisting of: Jason Keller (Illinois AFL-CIO), Dianne McGuire, Barb Molloy (Molloy Consulting), Kim Moreland (Rising Medical Solutions), John Smolk (United Airlines), Dr. Avi Bernstein, Dr. William McAndrew and Dr. Michael Vender. The WC Medical Fee Advisory Board advises the IWCC on the establishment of fees for medical services and the accessibility of medical treatment, and consists of three employee representatives, three employer representatives and three medical professionals. (There currently remains one vacancy for an employee representative with the current appointments.)

Speaking of the Fee Schedule, with the 2011 amendments, the Medical Fee Schedule was cut by 30% across the board on 2011 for any and all medical services rendered. Recently, the IWCC announced that with the coming new year there will be a 3.77% increase in fees for services incurred after January 1, 2012. (When the Medical Fee Schedule was created with the 2005 amendments, it allowed for annual increases to account for inflation.)

In the meantime, we have learned that independent arbitrators have been hired to serve on a contract basis to hear the claims of IWCC employees, including arbitrators with pending claims. These independent arbitrators are H. Case Ellis, Daniel Leahy, Alan Rosen, and Edward J. Schoenbaum.

Finally, the 2011 amendments require that each venue have a minimum of three arbitrators assigned to it. This is a logistical issue given the size of some of the existing downstate venues, which barely have enough of a case load to occupy one arbitrator. To meet the requirements of the 2011 amendments and overcome this issue, there is currently discussion of “super venues” which will consist of six “super venues” that will consist of three locations at which cases will be heard. This is still in the preliminary planning stage, but it looks as though cases will return to a 90-day trial call cycle at the IWCC and be assigned to one arbitrator. The downstate cases will then come up for hearing on that arbitrator’s trial call but can be heard under 19(b) at any of the three locations within the “super venue,” so long as it is before the arbitrator to whom the case is assigned. Confused? Many are confused, which is one reason this is still in the preliminary phase. If you want to get some idea as to what these “super venues” will look like, here you go:

Region : Hearing sites

1 : Collinsville, Herrin, Mt. Vernon

2 : Quincy, Springfield, Urbana

3 : Bloomington, Kewanee, Peoria

4 : Geneva, Joliet, Ottawa

5 : Rockford, Waukegan, Woodstock

6 : Wheaton (Three Chicago arbitrators will be assigned to appear in Wheaton.)

Changes are happening at the IWCC, and we’ll continue to monitor this and keep you updated. Please contact our office if you have any specific questions or would like to offer some feedback on the changes. We would enjoy hearing from you!

Quinn signs law banning WC benefits following serious criminal convictions

From the Decatur Tribune, Governor Pat Quinn today signed legislation to prevent workers convicted of serious crimes from claiming workers’ compensation benefits for injuries resulting from those crimes. Senate Bill 1147 prohibits workers from receiving benefits or attorney fees for injuries sustained in the commission of forcible felony, aggravated DUI or reckless homicide.

“Our workers’ compensation system is designed to protect workers injured on the job, not those who commit crimes,” said Governor Quinn. “Earlier this year, I passed and signed a comprehensive overhaul of our workers’ compensation system. This is another tool to make sure that workers’ compensation benefits go only to those who deserve them.”

After being charged with a forcible felony, aggravated DUI or reckless homicide, the new law also prevents employees from collecting benefits or attorney’s fees until their criminal case has concluded. Acquittal or dismissal, however, does not automatically guarantee benefits; after the conclusion of the criminal case, workers are able to pursue benefits similar to any other workers’ compensation claim.

Senate Bill 1147 was sponsored by Sen. William Haine (D-Alton) and Rep. Dwight Kay (R- Glen Carbon), and is effective immediately.

Apply to be an Arbitrator!

As we await the Governor’s signature on the recent changes to the Act, the Commission has put out word that applications are now being accepted for the position of IWCC Arbitrator.  From the IWCC Website:

House Bill 1698 provides that the governor will appoint all arbitrator positions. The governor has not yet signed the bill, but the Governor’s Office has gone ahead and set up a web page for applications.  All existing arbitrators must apply if they wish to be appointed.

Apply here.

General Assembly Passes WC Reform Bill

Over the course of the past year, employers and insurers in and outside of Illinois have demanded reform of Illinois ’ Workers’ Compensation Act and the Illinois Workers’ Compensation Commission. As the legislative session drew to a close on May 31, 2011, the Illinois General Assembly finally took notice of those demands (at least to some extent yet to be determined) and passed legislation that will comprehensively reform workers’ compensation in Illinois . The Governor is expected to sign the bill into law sometime this week, perhaps even today, and the changes take effect immediately upon becoming law unless noted otherwise. Whether this is the answer to the “call for reform” employers requested is yet to be seen and will likely be debated for some time to come. Some of the key highlights from the reform bill include:

• New standards of conduct, continuing education and initial qualifications are required for Arbitrators and Commissioners, and their decisions must be based only evidence and inquiries contained within the record of the proceedings.
• All current arbitrators will be terminated effective July 1, 2011 and subject to reappointment by the Governor with the consent of the Senate to new three-year terms (the current arbitrators will continue to perform until reappointment or until a replacement is appointed).
• Effective January 1, 2012, the Medical Fee Schedule will undergo an overhaul, eliminating the current 29 geo-zips and creating four non-hospital fee regions and fourteen hospital fee regions throughout the State, and effective September 1, 2011 there will be a 30% reduction across the fee schedule amounts as a whole.
• Out-of-state providers shall be reimbursed at the lesser of the amount from the fee schedule in the State in which the provider is located or the Illinois fee schedule amount for the region in which the employee resides.
• Utilization review procedures and requirements are more stringent and well-defined, but in exchange the IWCC “shall” consider an admissible UR review “along with all other evidence” in determining reasonableness and necessity of treatment.
• For accidents occurring on or after September 1, 2011, wage differential benefits shall be paid until the age of 67 or for 5 years, whichever is later, rather than for the employee’s life expectancy as was the case in the past.
• Carpal tunnel syndrome PPD claims are capped at 15% loss of use of the hand (based upon 190 weeks for the full value of the hand), except when there is “clear and convincing evidence” that the award should be higher, but in no case shall it be paid at more than 30% loss of use of the hand.
• Employers can now create a PPO program, which must first be approved by the Illinois Department of Insurance, for workers’ compensation claims and through which their employees must treat with providers in that network for injuries claimed to arise out of and in the course of the employment. (Employees can get out of the network upon proof to the IWCC that the care received by the two choices of physician within the network is inadequate.  Employees can also “opt out” of the PPO in writing , but lose one of their two choices of physician as a result.)
• In determining PPD awards for accidents on or after September 1, 2011, the IWCC is required to consider the opinions of medical providers as to impairment ratings, which are to be based upon objective examination findings and AMA guidelines.
• The State is starting a “pilot collective bargaining program” limited to “construction employers” only, in which those employers and the unions representing their employees can essentially create their own workers’ compensation system, preferred medical providers and alternative dispute resolution procedures to resolve disputed claims outside of or in supplement to the Illinois Workers’ Compensation Commission.
• For accidents occurring on or after September 1, 2011, no compensation shall be payable if (i) the employee’s intoxication is the proximate cause of the employee’s accidental injury or (ii) at the time the employee incurred the accidental injury, the employee was so intoxicated that the intoxication constituted a departure from the employment.
• Stricter fines and provisions are added for workers’ compensation fraud and failure to procure workers’ compensation insurance.
• IWCC employee claims are to be handled outside of the IWCC.
• As of September 1, 2011, workers’ compensation rate setting advisory organizations are to recalculate workers’ compensation advisory premium rates and assigned risk pool premium rates, and stricter and detailed reporting requirements have been created for insurers of workers’ comp in Illinois .

Please note that this is not intended to be a comprehensive review of all of the new provisions, but simply summarizes some of the key points. If you would like a more detailed explanation of the 2011 Illinois Workers’ Compensation Reform legislation, how it fell short of the true reform demanded by employers and what you might expect with these changes, please contact us, and we will be happy to provide a presentation to you and your organization regarding this.