I&F Prevails in Repetitive Trauma Claim

In a case recently tried by Partner Colin Mills, the Arbitrator found that Petitioner failed to prove by a preponderance of the evidence that she sustained accidental injuries to her bilateral hands due to repetitive work activities that arose out of and in the course of her employment with Respondent. As such, Petitioner’s claim for medical benefits, temporary total disability benefits, and permanent partial disability benefits was denied.

In support of her decision, the Arbitrator first found that Petitioner’s alleged “manifestation dates” did not correlate with the medical evidence introduced at trial. Further, the Arbitrator found that the opinions of Respondent’s Section 12 Examiner were more credible than those of the treating physician, as the Section 12 Examiner was better prepared and more informed to opine on the causal relationship of Petitioner’s job duties to her condition.   Specifically, the Arbitrator noted the importance of the fact that the Section 12 Examiner was provided with a job video analysis and written job description on which to base his causation opinions. Conversely, on cross-examination, Petitioner’s treating physician was only able to testify that he had a vague idea of Petitioner’s job duties, and that his opinions were not based on a thorough understanding of Petitioner’s job duties.

This excellent result netted a significant savings for Respondent, and reflects the importance of thorough expert witness preparation.

Governor Quinn appoints Ron Rascia Acting Chairman of the IWCC

Former IWCC Chairman Michael Latz resigned on November 30th and Governor Quinn has appointed Ronald A. Rascia as Acting Chairman, effective today. Chairman Rascia first joined the Commission in 2011 as General Counsel, and later added the duties of the Secretary of the Commission. Assistant Secretary Brendan O’Rourke will serve as Acting Secretary.

Chairman Rascia worked for the Illinois Attorney General for nine years as a supervising attorney in the General Law Bureau, where he defended State agencies in state and federal courts. As an attorney in the private sector, he served as General Counsel to Northwestern Golf Company and Platinum Financial Group.

Chairman Rascia earned a BA in Economics from DePaul, and both a JD and LLM in Intellectual Property from John Marshall Law School.

I&F Successfully Defends Alleged Claim of Permanent & Total Disability

Attorney Lauren Waninski of Inman & Fitzgibbons successfully defended a claim where the claimant alleged he was entitled to a permanent total disability award. The claimant alleged that he was permanently and totally disabled after a hit-and-run accident at work and two lumbar spine fusion surgeries. At trial, I&F introduced evidence refuting the claimant’s alleged accident and established that the claimant failed to produce any evidence documenting he was involved in a hit-and-run. The claimant also failed to produce a the necessary reports and medical records supporting his testimony. The Arbitrator noted the petitioner’s testimony on the issue of accident was outweighed and deemed not credible in light of the more credible testimony and documentary evidenced offered by Respondent. The Arbitrator found the claimant did not establish that he sustained a compensable accident arising out of and in the course of his employment with Respondent. The Arbitrator denied benefits to the claimant and rendered all other issues moot. Inman & Fitzgibbons saved the client over $72,000.00 in disputed medical expenses, over $60,000.00 in disputed TTD benefits, and over $500,000.00 in a potential permanent total disability payout.

OSHA Reporting & Record-Keeping: What Will Be Required in 2015?

The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently announced a new rule, effective January 1, 2015, that will require employers to notify OSHA when an employee is killed on the job, requires hospitalization from a work-related injury, suffers an amputation, or loses an eye. Additionally, this new rule updates the list of employers that are partially exempt from OSHA’s recordkeeping requirements.

Beginning in 2015, employers will be required to notify OSHA of work-related fatalities within eight hours. Further, employers must also report work injuries that require hospitalization (in-patient stays), limb amputations, or losses of an eye within 24 hours. Under the previous rule, employers were required to report only work-related hospitalizations or fatalities that involved three or more employees. Again, these new reporting requirements pertain to all workplaces that fall under federal OSHA jurisdiction, even those that are exempt from routinely keeping OSHA records of serious employee injuries and illness either due to the nature of its industry (since 1982, this has been comprised of establishments in the divisions of retail trade, finance, insurance and real estate, and the service industry if the three year average lost workday case rate for their major industry group was 75 percent or less of the overall three year average of the lost workday case rate for private industry), or due to company size (fewer than 10 employees at all times during the previous calendar year, regardless of industry).  It should also be noted that OSHA has added 25 additional industries to the list of those that are exempt from the requirement to routinely keep injury and illness records.

Please visit https://www.osha.gov/recordkeeping2014/records.html for more information regarding new record keeping rules and requirements.

As a practical matter, it can be expected that the number of reportable instances will increase dramatically under the new rule. For instance, it is more likely that an incident could occur requiring only one worker to be hospitalized, which would previously not have been reportable. Also, it has been noted that OSHA now considers losses of fingertips without bone loss as amputations, which would now require reporting. After filing a report with OSHA, employers can expect interaction, if not an inspection. As such, it is recommended that the employer be fully aware and knowledgeable as to what OSHA standards apply in order to ensure full compliance.

To help employers comply with the new regulation, OSHA is in the process of developing a website so that employers can report the incidents electronically. However, employers may also continue to report these instances by telephone (1-800-321-OSHA), or by calling the nearest Area Office.

Thanks to Partner Colin Mills for keeping up with these developments.

Illinois Arbitration territory changes in 2015

News from the IWCC on the changing venues:

Zone 4, which now consists of New Lenox and Ottawa, will add Kankakee as a new site. Zone 6, which now consists of Geneva, Wheaton, will add Elgin as another new hearing site. To view the new accident location table, go to http://www.iwcc.il.gov/location.xls

All Chicago cases that were assigned to Zone 6 arbitrators will be reassigned to new Arbitrators Bocanegra and Fruth. To fill out the new arbitrators’ caseloads, other Chicago cases will be reassigned.

As of now, all Collinsville/Belleville cases are set in Collinsville as the IWCC has not been able to reserve the Belleville location during the trial cycles.

CMS Database Brings Transparency to Payments made to Doctors

As our employer and insurance industry clients are well-aware, skyrocketing medical costs have greatly contributed to rising exposure and expense in workers’ compensation claims.  Often, respondents in workers’ compensation claims are in the dark as to the doctors’ motivation for prescribing a given course of care.   Although opinions certainly differ as to the 2010 Affordable Care Act, one part of that Act may become a useful tool for investigating this question by proving a tool to examine the relationship between doctors and the pharmaceutical industry.

As a result of The Physician Payment Sunshine Act, the Centers for Medicare & Medicaid Services has released an Open Payments database that provides information regarding the payments made to physicians from pharmaceutical and medical equipment companies whose products they prescribe.  For now, the information only documents payments made from August 2013 through December 2013, but it is anticipated that information for all of 2014 will published in 2015. The database is also limited in other ways, such as not including payments made for research on new products and not including payments made to a physician’s assistant or nurse.

However, the database has documented and identified approximately $1.3 Billion in payments that have been made to approximately 360,000 medical professionals, 873 teaching hospitals, and 1,379 purchasing organizations.  While the database is currently constrained in its coverage and clumsy when it comes to user-friendliness, it signifies the beginning of a very useful and important tool in identifying the influence of pharmaceutical companies upon medical professionals.  The Open Payments data can be found at:

http://www.cms.gov/openpayments/index.html

Be sure to return in June of 2015, when a significantly larger set of information will be released. Thanks to I&F attorney Michael Bantz for covering this important issue.

Quinn Announces that Workers’ Compensation Loss Costs Drop Nearly 20%

According to Gov. Quinn and the IWCC, “Indications are coming in to show the 2011 changes to the Workers’ Compensation Act are delivering significant savings to Illinois businesses.”  The National Council on Compensation Insurance reported a 19.3% drop in loss costs since 2011.  To read the press release, go to http://www.iwcc.il.gov/PR090414.pdf

In addition, a 2014 Oregon study found Illinois had the largest savings in the country as a percentage of study median. To read the press release, go to http://www.iwcc.il.gov/PR101614.pdf

IWCC Denies Correctional Officer’s Repetitive Trauma Claim

The Commission recently affirmed an Arbitration decision in Dryden v. Centralia Correctional Center, in determining that the Petitioner failed to prove that his work duties as a correctional officer caused his bilateral carpal tunnel syndrome. In a 2-1 decision, the Commission affirmed the Arbitrator’s findings that the Petitioner’s job duties were not varied or sufficiently repetitive and that the medical opinion of the section 12 examiner was more informed and persuasive than the medical opinion of the treating physician.

The Petitioner in this case was a correctional officer that had been employed by the Respondent since 1997. He alleged a work accident on March 21, 2011. It was noted that the Petitioner was a reservist and had been deployed throughout his employment, most significantly from 2003 through 2009.

At Trial, the Petitioner testified that he had no upper extremity complaints as of 2009. The Petitioner further testified that he believed that his upper extremity complaints developed as a result of his work at the Respondent during the five months between October 2009 and March 2010. The Petitioner testified that he worked a variety of positions on the 7:00am to 3:00pm shift from October 2009 through March 2010, which had different duties and involved different upper extremity motions. The Petitioner testified that he worked the segregation unit for approximately 25 shifts that time period. The Petitioner testified that the position of a segregation officer required him to manipulate large Folger-Adams keys that weighed approximately one pound, as well as padlock keys, small cuff keys and standard-sized door keys. It was indicated that the segregation unit at the Respondent facility included only 30 cells and that the duties were divided amongst two officers during each day shift. It was noted that the majority of the key manipulation occurred between 8:00am and 11:30am. Aside from those 25 shifts working in the segregation unit, the petitioner worked as a dayroom officer, which required him to perform wing checks, inspect cells and inspect property boxes for contraband. He also worked in the control room, during which time he was required to operate a control panel with buttons, switches and a telephone. It was noted that the Petitioner worked full duty at the Respondent except for two brief periods in 2011.

In a job analysis report for the correctional officer position, it was indicated that the correctional center was a medium security facility in which the inmates used their own keys to let themselves in and out of their cells and were able to go to other areas of the prison. It was also noted that the inmates were locked in their cells at approximately 9:30pm by officers working the 3:00pm to 11:00pm shift and were not unlocked until approximately 4:30am by escort officers working the 11:00pm to 7:00am shift.

The Petitioner first reported his condition to his treating physician on March 21, 2011 and noted that the numbness and tingling in his upper extremities over the course of the previous year. An EMG taken on that date revealed mildly delayed median sensory latency in the left and right wrist. The treating physician recommended bilateral CTS releases on April 14, 2011 and administered Kenalog injections on August 29, 2011 with minimal temporary relief. The treating physician testified that his understanding of the Petitioner’s job duties came directly from the petitioner himself. He opined that the Petitioner’s upper extremity symptoms manifested in approximately March of 2010. He was unaware of the Petitioner’s military service. The treating physician even acknowledged that his opinion would be stronger if he had toured the Respondent’s facility and observed the type of activities that the Petitioner performed on a daily basis.

At Trial, the Respondent offered the report of the section 12 examiner, who had actually toured several correctional centers, including the Respondent’s facility, and had performed the actual duties of a correctional officer during his tour. In addition, it was indicated that the examiner also reviewed the job analysis report, DVD and job descriptions. The examiner opined that the Petitioner’s job duties as a correctional officer did not cause or aggravate his carpal tunnel syndrome.

The Arbitrator determined that the Petitioner failed to meet his burden of proof on the issue of accident. The Arbitrator indicated that the petitioner’s job duties were varied and not sufficiently repetitive to rise to the level of accident. The Arbitrator also determined that the opinions of the section 12 examiner were more persuasive than the opinions of a treating physician as a result of his better understanding of the Petitioner’s job duties. The Arbitrator also noted that the Petitioner testified that he believed his symptoms developed between October 2009 and March 2010, which was not consistent with his alleged March 21, 2011 date of accident.

Upon review, the Commission affirmed the decision of the Arbitrator in a 2-1 decision. The dissenting Commissioner’s opinion pointed to the Petitioner’s detailed testimony concerning his job duties. It also referenced the information that was not included in the job analysis; such as opening 150 doors per day or the number of times that the Petitioner would have to cuff and uncuff an inmate per day. The dissenting Commissioner opined that with the Petitioner’s credible testimony and the medical opinions of the treating physician, he met the burden of proof that his work activities were a causative factor in his bilateral carpal tunnel syndrome.

Bottom Line:  This case highlights an important issue for Illinois employers.  Disputed repetitive trauma cases are difficult to win but not impossible. We often see that the opinions of treating doctors in these cases are based on incorrect, inaccurate or incomplete information.  Care must be taken to obtain accurate information regarding job duties and provide it to the Section 12 examiner.    Illustrating this issue for the Arbitrator and Commission provides a basis for them to conclude that the Section 12 opinion is more credible than that of the treating doctor.

Thanks to attorney Mark Carter for this excellent summary.

IWCC Announces New Arbitrator Assignments

Effective November 1, Arbitrator Stephen Friedman will take over the Chicago call formerly handled by Arbitrator Kelmanson, and Arbitrator Michael Nowak will take over the Collinsville/Belleville call formerly handled by Arbitrator Zanotti.

The IWCC is creating new Chicago calls for Arbitrators Bocanegra and Fruth that will take effect January 1, 2015. Because cases are continued for 90 days at a time, some cases are now being reassigned for the January calls. According to the IWCC, their computer database may show the new arbitrator, but until January 1 the current arbitrator retains jurisdiction.

2015 Fee Schedule Rates to Increase by 1.70%

According to news published by the IWCC, 2015 medical fee schedule rates will increase 1.70% on January 1, 2015.  According to the IWCC, the 2015 rates will be 38% lower than medical inflation since the fee schedule took effect in 2006.

Section 8.2(a) of the Illinois Workers’ Compensation Act provides that, each year, fee schedule rates shall increase or decrease by the percentage change in the Consumer Price Index-U (CPI-U) in the previous year.

The 2015 rates will be posted as soon as the vendor, Optuminsight, calculates them and obtains information about new and deleted codes. The rates are usually posted at the end of the year. The IWCC will give notice on their web page when the new rates are available.

Commission Unanimously Affirms PTSD Not Related to MVA Involving Death of Pedestrian

As we previously reported, I&F successfully defended a claim for PTSD allegedly caused by accident in which petitioner, a medical supply driver, struck and killed a pedestrian while making a delivery.  Following the accident, the petitioner received six months of treatment for anxiety. He then stopped treating for  1 ½ years. When he resumed treatment, he was diagnosed with PTSD by his primary care physician, a psychiatrist, and a psychologist. He embarked on a lengthy course of treatment that involved counseling. The petitioner’s psychologist testified that PTSD was caused by the accident and recommended EDMR (eye movement desensitization and reprocessing). She also testified that the petitioner was unable to work and may never be able to do so.

The evidence adduced  at the 19(b) trial by our firm established that none of the treating providers ever restricted the petitioner from driving. Furthermore, at trial, the petitioner admitted that during the course of his treatment he engaged in recreational driving to California, recreational driving to Florida, and weekly motorcycle club meetings to which he drove his motorcycle.  The Arbitrator adopted the opinion of the respondent’s IME doctor, who testified that someone who continues to drive a car and ride a motorcycle does not fit the diagnosis of PTSD incurred while driving a vehicle. The Arbitrator noted that both of those put the petitioner in situations similar to or perhaps more dangerous from a risk perspective than his actual driving behavior in the context of this claim. The Arbitrator also found the significant gap in treatment to be telling.

I&F also established that none of the petitioner’s providers fulfilled the DSM-IV criteria by assessing the petitioner for exaggeration or malingering through utilization of objective pathology to look at whether the petitioner had a credible response pattern.  The respondent’s IME doctor was the only medical professional in this case that actually assessed the validity of the petitioner’s symptom presentation. The respondent’s IME doctor testified that the petitioner failed multiple objective tests, establishing a pattern of a malingering approach to presentation of symptoms indicating non-credible simulation for secondary gain.

The Arbitrator concluded that the accident caused a “temporary period of upset,” but that the petitioner failed to prove that the accident caused PTSD. Prior to trial, the settlement demand was in excess of $500,000.00.  The petitioner appealed the Arbitration Decision. In a unanimous decision, the Commission affirmed and adopted the Arbitration Decision in its entirety.

Congratulations to Scott McCain for the excellent result.

I&F Presenting at 7th Annual Workers’ Compensation Conference on September 24

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Partners Thomas Fitzgibbons and Steven Murdock, along with our friends at the Illinois Chamber of Commerce, will be discussing the AMA Impairment Ratings used in determining Permanent Partial Disability and Workers’ Compensation Fraud at the 7th Annual Workers’ Compensation Conference for Illinois Employers at the Hilton in Lisle on September 24, 2014.

If you are interested in attending, please contact Pam Holleman at (855)239-6150 or pholleman@ilchamber.org

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I&F Opens Three New Offices

We are excited to announce that we have opened the following new offices:

• Milwaukee, Wisconsin
• Indianapolis, Indiana
• Des Moines, Iowa

Inman & Fitzgibbons was founded with the goal of delivering the highest quality legal services in a timely and cost-effective manner. The firm has since grown to become a regional firm representing employers in the areas of workers’ compensation, subrogation and general liability defense. Throughout that time, client service has remained the firm’s first priority. Our new offices, together with our offices in Chicago, Champaign, and St. Louis, Missouri, will ensure that the firm continues to achieve rapid and cost efficient solutions for our clients.

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Governor Quinn Appoints Four New Arbitrators

Governor Pat Quinn appointed four new arbitrators to the Commission:

Maria Bocanegra is an attorney at Katz Friedman, specializing in workers’ compensation. She previously worked as a judicial assistant to the Honorable David Furman and as a case administrator for the United States Bankruptcy Court in the District of Colorado. Ms. Bocanegra was also appointed to the Illinois Department of Labor’s Labor Advisory Board in 2013. She holds a J.D. from DePaul University and a B.A. from Quincy College.

Stephen Friedman is currently a Managing Partner of Rusin, Maciorowski & Friedman, Ltd., specializing in workers’ compensation defense. Previously, he was an associate and a partner at Rooks, Pitts and Poust practicing workers’ compensation and personal injury defense. He earned both a J.D. and a B.A. from the University of Illinois.

Steven Fruth is currently a trial attorney at the Chicago Transit Authority. Previously, he served as a Circuit Judge in the Circuit Court of Cook County and as the Staff Counsel at Allstate Insurance Company. He holds a J.D. from the John Marshall Law School and a B.A. from Southern Illinois University.

Michael Nowak is an attorney at Becker, Paulson, Hoerner & Thompson, P.C., focusing primarily on workers’ compensation law. Previously, he was a partner in his own firm, representing injured workers. Mr. Nowak has served as an arbitrator for the St. Clair County Arbitration Center as well as a member of the Judicial Nominating Committee for the U.S. District Court, Southern District of Illinois. He holds a J.D. from Northern Illinois University and a B.A. from Eastern Illinois University

Claimant’s Involvement with Family Business not Considered “Return to Work”

This recent case illustrates one facet of the limits of the Respondent’s ability to mitigate TTD exposure prior to a claimant reaching MMI.  In Sunny Hill of Will County. v. Illinois Workers’ Comp. Comm’n, 2014 IL App (3d) 130028WC, the claimant’s ownership of and contributions to a business that was run with her two daughters did not represent “a return to work” and did not preclude TTD.  The Third District Appellate Court relied on the fact that the claimant did not follow a regular schedule, did not draw a paycheck, did not keep track of her hours, and did not distribute any of the profit from the store to herself.

The claimant had suffered two separate injuries to her right shoulder, in September of 2007 and on December 5, 2008, and had undergone three surgeries.  She had been restricted from working continuously and was still restricted at the time of arbitration.  The claimant opened the flower store with her daughters in 2007.  The claimant owned a 53% share of the business and was present at the store at least three days a week, with duties that consisted of answering the phone, taking the orders, taking faxes, assisting with preparing arrangements, and babysitting her grandchildren.  However, the Court noted that when the business had its first profitable year in 2010, the profits were distributed to her daughters, and also found that she had not taken a salary or income of any kind as of the time of Arbitration, in June of 2011.  The Court also emphasized the fact that her schedule was erratic and unrecorded.

The Respondent argued that the Commission failed to apply the “stable market test,” specifically whether there was a reasonably stable market for the claimant to work in.  However, the Court found that this issue was not pertinent, as, “the essence of the TTD determination is…whether the claimant’s condition has stabilized.”  The Court acknowledged that a claimant’s ability to work may be an indicator that they have reached MMI with a stabilized condition, depending on the physical demands of the type of work that they are doing.  The Court also responded to cited language from City of Granite City v. Indus. Comm’n (1996), 279 Ill. App. 3d 1087, at 1090, “to show entitlement to TTD benefits, claimant must prove not only that he did not work, but that he was unable to work,” finding that while a literal application of language would require TTD denial when a claimant was working, the Court declined apply the rule in such a way, stating that evidence that a claimant is working is only a factor in determining whether a claimant’s condition has stabilized.

The Court’s ruling here indicates that a claimant who is restricted from working one position is still entitled to TTD even if they are working at another, less physically demanding job so long as it is clear that their condition has not stabilized.  While the Court did not address temporary partial disability (TPD) here, likely because the claimant did not earn any wages from her work at the flower shop, the customary approach to such a situation would be to use TPD benefits. It should also be noted that the similar cases cited in the decision that involved alternative employment and entitlement to TTD were all from before 2005, when the Illinois Workers’ Compensation Act was amended to include TPD.

Thanks to Attorney Micahel Bantz for this excellent summary.

 

NCCI Recommending a 5.5% Drop to Advisory Rates for 2015

The National Council on Compensation Insurance (NCCI) advisory rates determine the premiums businesses pay for workers’ compensation insurance.  On July 30, 2014 Governor Quinn announced that NCCI has filed a request for lower workers’ compensation rates in Illinois, recommending a 5.5% drop in the advisory rate for 2015. With the implementation of the proposed rate reduction, the advisory rate level will have dropped 18.1% below the advisory rate level prior to the 2011 workers’ compensation reform legislation.  This will be the fourth rate reduction in five years since the reforms were enacted.

The Illinois Department of Insurance (DOI) estimates that the proposed reduction in advisory rates could result in overall reduction in premiums of up to $143 million in 2015, with the total savings since the reforms were enacted of $458 million. If the DOI accepts the filing, to be effective January 1, 2015, employers are advised to contact their insurance agent prior to their 2014 renewal date to determine the impact on their premium.

Thanks to attorney Scott McCain for the update on this issue.

I&F Preserves Arbitration Win before Commission

In September 2013, Lauren Waninski recorded a win in a disputed case involving a claimant who alleged a rotator cuff tear after an altercation at work.  The claimant had undergone a diagnostic study several days prior to his alleged date of injury which showed proof of a rotator cuff tear.  In a trial that included physician depositions and testimony from the claimant, the Arbitrator found that the claimant failed to meet his burden of proof that an accident arose out of and in the course of his employment with the employer with respect to the alleged right shoulder injury.  In defeating the claimed injury to the right shoulder, Lauren saved the employer potential trial exposure up to $47,000.00.

A Petition for Review was filed by the petitioner.  In July 2014, after reviewing the trial transcript, party briefs and listening to oral arguments on this highly disputed claim, the Commission affirmed the Decision of the Arbitrator finding that the petitioner did not sustain an accident and rendering all other issues moot.

 

Commission Adopts IME in Degenerative Knee Claim and Denies Knee Replacement

The Commission recently modified an Arbitrator’s decision in part in a case – Antonio Rice v. Chicago Construction Specialists, Inc., in denying prospective medical treatment, modifying an award of TTD benefits and determining a date in which the petitioner reached maximum medical improvement. The Commission found the opinion of the IME physician to be more persuasive and better supported by the facts than the opinion of the treating physician/surgeon.

In this case, the petitioner had been a construction laborer since 1986 and began working for the Respondent on November 7, 2011. On the first date of employment, the petitioner was assigned to push a full wheelbarrow to a dumpster and to empty it in the dumpster. The empty wheelbarrow weighed approximately 15 pounds and a full wheelbarrow weighed approximately 90 pounds. The petitioner testified that he pushed the wheelbarrow to the dumpster between 20 and 30 times during his first day on the job before he felt his left knee pop. He notified his supervisor and went to the emergency room on November 8, 2011 due to his pain. He subsequently underwent a partial medical meniscectomy on January 27, 2012 and the treating physician opined that the tear was small and frayed, but with no sharp edge, and could have occurred acutely or over time. The treating physician related the tear to the work accident based on the Petitioner’s history. The petitioner’s condition improved and eventually plateaued and he was released from physical therapy on June 30, 2012. On July 13, 2012, the Petitioner was seen by the treating physician and noted continued intermittent pain and swelling; lack of full extension of his left knee and medial joint line tenderness. The treating physician recommended a left total knee replacement.

On January 10, 2012, the petitioner underwent an IME, who noted no loose bodies and associated the Petitioner’s popping event on November 7, 2011 to no more than a patellofemoral event related to Grade IV arthritis. The IME physician opined that the work accident did not cause an aggravation or acceleration of the left knee problem and that his symptoms and problems were the same that he was having in 2011. The IME physician opined that the petitioner’s symptoms were related to degenerative arthritis, that knee replacement was in no way related to the accident and that he was at MMI. The IME physician later testified that given the Petitioner’s advanced arthritis, it was expected that his symptoms would wax and wane. He also testified that the Petitioner was going to need a total knee replacement regardless of the injury.

At Trial, there was witness testimony that the Petitioner walked with a limp prior to his work accident. There was also evidence of the Petitioner’s well-documented pre-existing left knee condition, including prior arthroscopic procedures in November 2006 and December 2009. The petitioner also underwent a left knee arthroscopy and partial medical meniscectomy on December 28, 2010 following left knee popping episodes in December 2010 while getting out of a chair and getting out of a car, respectively. The petitioner twisted his left knee again and underwent a left knee arthroscopy and lateral chondroplasty on May 10, 2011. Prior to his work accident in November 2011, the petitioner had an antalgic gain; diffused tenderness of the knee; mild degenerative changes and he lacked full extension of his left knee. It was also noted that the Petitioner sought treatment for his left knee one month prior to his work accident.

At Trial, the Arbitrator awarded TTD benefits through the hearing date and a prospective award for the total knee replacement. On review, the Commission found that the (meniscal) fraying and the need for the arthroscopic surgery to be causally related to the Petitioner’s work accident. However, the Commission determined that the petitioner returned to his pre-injury condition and reached MMI as of June 30, 2012 and was not entitled to TTD benefits beyond that date and that the left total knee replacement recommendation was not related to the Petitioner’s November 7, 2011 work accident.

It its decision, the Commission noted that the treating physician indicated that the Petitioner’s need for the total knee replacement was based on his degenerative condition and prior surgeries, along with the accident. However, the Commission found the opinion of the IME physician that the petitioner was going to need a total knee replacement regardless of his November 7, 2011 work injury to be more persuasive. The Commission noted that the IME physician’s opinion was supported by the fact that the Petitioner had Grade 4 degenerative left knee arthritis and had two prior surgeries. The Commission also noted that the Petitioner’s pre-accident medical examination findings from May 10, 20111 through October 10, 2011 were virtually identical to the post-accident findings beginning on March 5, 2012.

The Commission modified the Arbitrator’s decision and found that the petitioner was only entitled to TTD benefits from November 7, 2011 through June 30, 2012 and that he the Petitioner was not entitled to the total left knee replacement.

Thanks to Senior Attorney Mark Carter for this important summary of a recent decision illustrating effective reliance on an IME and perseverance through the Commission review level.

I&F Champaign Celebrates Second Anniversary

View of downtown Champaign including I&F South

View of downtown Champaign including I&F South

Inman & Fitzgibbons was founded over 24 years ago with the goal of delivering the highest quality legal services throughout the entire state of Illinois in a timely and cost-effective manner.  In support of that goal, I&F opened the doors to its Champaign office, led by Partner and Danville native Colin Mills, in the summer of 2012.

Since 1990, Inman and Fitzgibbons has grown to become a regional firm representing Illinois, Iowa, Wisconsin, Missouri, and Indiana employers in the areas of workers’ compensation, subrogation and general liability defense.  Client service has always been, and remains, the firm’s first priority.

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Exaggeration and Misrepresentations by Petitioner Result in Reduction of Award by Commission

In a victory for Respondents at large, the Commission reduced an Arbitrator’s award from 30% loss of use to the man as a whole to 22.5% loss of use to the man as a whole.

In this case, the petitioner, a certified nursing assistant, was injured in a motor vehicle accident. An FCE ultimately limited her to occasionally lifting 14.8 pounds at the chair to floor height, and occasionally lifting 20 pounds from desk to chair height. Additionally, the FCE limited the petitioner to standing for 40 minutes duration for up to a total of 4 hours. The petitioner was unable to return to work as a certified nursing assistant and obtained a different job within her restrictions through vocational rehabilitation. Based upon the foregoing, the Arbitrator awarded “loss of occupation” benefits pursuant to Section 8(d)(2) of the Act in the amount of 30% loss of use to the man as a whole.

The respondent appealed the Arbitrator’s award to the Commission. The Commission concluded that the petitioner exaggerated the true nature of her physical condition at trial to such a degree that the Arbitrator’s award of 30% loss of use to the man as a whole was excessive.

Specifically, the Commission noted that at trial on May 13, 2013, the petitioner testified that her then present symptoms were severe, including a feeling that her veins were bursting, that her legs would swell up, that she would lose her balance, and that she would have to sit for an hour or two before work due to pain.  Notwithstanding this testimony that would appear to warrant medical attention, the petitioner had not treated since 2011. In addition, the Commission noted that the petitioner’s then testified to condition had dramatically worsened as compared to her condition upon discharge from physical therapy on December 8, 2011. The Commission found it incredible that the petitioner chose to live with her claimed symptoms rather than seek medical treatment for her claimed worsening of symptoms.

The evidence the Commission found most telling was misrepresentations the petitioner made to her treating physicians while actively treating. The evidence adduced at trial established that the petitioner repeatedly told one treating physician that she was scheduled to follow up with a surgeon for a surgical consultation but she never did so. Furthermore, the petitioner told another treating physician that she was going to seek chiropractic care but she never did so. Finally, the petitioner failed to inform one of her physicians that this physician’s colleague had previously discharged her from his care after testing negative for opiates (despite having been prescribed them for a year) and after the petitioner failed to provide a urine sample for a toxicology test and then tried to obtain a urine sample from a third person.

This case demonstrates how important it is for defense counsel to adduce evidence at trial that impugn a petitioner’s credibility. Here, the misrepresentations made by the petitioner and her exaggeration of her symptoms at trial that did not comport with the medical evidence allowed for sufficient evidence to warrant a reduction in the award by the Commission.

Thanks to Scott McCain for the summary.