In a recent case upheld by the Commission – Shea v. RPRD Dyckman, Inc. – a truck driver’s claim for benefits was denied after the Arbitrator found that he failed to meet both prongs of the compensability analysis for claims of purely psychological injury, or a psychological injury with no associated physical trauma.
In these cases, a claimant must show that:
- He experienced a severe and sudden emotional shock; and,
- The psychological injury was immediately apparent.
In this case, the claimant, a semi-truck driver, was involved in a motor vehicle accident. Immediately after the accident, he heard screams and saw a man lying in the road with horrific head injuries. At trial, he testified that he experienced shock, felt sick, was irritable and agitated, worried constantly, and had trouble sleeping.
He also testified that he was able to perform his regular job duties within days of the accident, had looked for work as a truck driver after the accident, and did not seek psychological treatment until seven months after the alleged date of accident.
In denying benefits, the Arbitrator cited the above in finding that the claimant failed to prove he had sustained an accident arising out of and in the course of his employment.
Colin Mills recently preserved a victory before the Commission on a claimant’s review of a favorable arbitration decision. In this matter, the petitioner sustained a herniated lumbar disc as a result of a work-related injury. TTD and medical benefits were paid through the date that our Section 12 Examiner opined that the petitioner had reached maximum medical improvement and could return to work without restrictions. However, the petitioner continued treating and sought approval for a lumbar fusion and continued TTD benefits. After trial, the Arbitrator found no medical causal connection between the alleged accident and the petitioner’s condition of ill-being and need for further medical treatment. The petitioner filed a Review Petition, but after briefing and Colin’s oral argument, the Commission affirmed and adopted the Arbitrator’s Decision. Based on the recommended treatment, and the lost time and anticipated permanency that would have followed, the savings to our client totaled over $100,000.00.
On Wednesday, the Senate Committee on Assignments advanced several proposals by the Illinois Chamber Of Commerce for workers’ compensation reform to the Senate Labor Committee. The following five proposals are posted for hearing next week:
SB 2625, sponsored by Sen. McCarter, Sen. Righter, Sen. Duffy and Sen. Oberweis: overturns Interstate Scaffolding decision and allows an employer to discontinue temporary benefits when an employee is discharged for “misconduct”;
SB 2622, sponsored by Sen. McCarter, Sen. Righter, Sen. Duffy, Sen. Oberweis and Sen. Althoff: establishes a primary cause standard for determining whether the workplace contributed/caused the injury; defines the scope of “traveling employee” to employment-related travel” or the injury occurs while actively engaged in the duties of employment.
SB 2626, sponsored by Sen. McCarter, Sen. Righter, Sen. Duffy and Sen. Oberweis: provides for clearer methodology in determining an injured worker’s average weekly wage
SB 2623, sponsored by Sen. McCarter, Sen. Righter, Sen. Duffy and Sen. Oberweis: overturns the Will County Forest Preserve decision and restores that a shoulder injury award calculation is based upon being part of the arm; allows an employer credit for awards previously paid for “body as a whole” injuries;
SB 2624, sponsored by Sen. Radogno, Sen. McCarter, Sen. Righter, Sen. Duffy, Sen. Brady, Sen. Althoff Sen. Luechtefeld, Sen. Barickman, Sen. Rezin, Sen. Oberweis, Sen. Rose and Sen. LaHood : encompasses all the provisions of the four above bills.
Inman & Fitzgibbons actively participates in the efforts of the Illinois Chamber of Commerce in support of Illinois employers. If you have any questions about these efforts, please contact Partner Steve Murdock.
In a surprise move this morning, House Speaker Michael Madigan filed HB 4479, legislation to cut the corporate income tax in half from 7% to 3.5%.
According to the press released issued from his office this morning, it will save Illinois businesses $500 to $700 million in Fiscal Year 2014 and up to $1.5 billion in Fiscal Year 2015.
Click HERE for text of HB 4479.
Click HERE for text of the press release.
Thanks to our friends at the Illinois Chamber of Commerce for the update.
In a recent case successfully defended by I &F, Petitioner had filed Petitions under Sec. 8(a) and 19(b) seeking authorization for a cervical fusion and 3 years of TTD benefits. Accident and notice were disputed. Petitioner alleged an injury to his neck at work on August 26, 2008. Respondent did not have any information regarding a work accident until the filing of the Application in January 2009. Petitioner saw a reputable treating neurosurgeon in May 2009 and provided that doctor with a detailed history of the accident. The neurosurgeon documented the neck complaints as related to the accident and opined that the Petitioner was in need of a cervical fusion. Petitioner’s attorney also obtained an IME from a well known occupational doctor, with no particular expertise in spinal issues, who concluded that the petitioner suffered an injury to his neck when struck by a dock plate on August 26, 2008 and that he needed further medical treatment to his neck as well as work restrictions.
Handling attorney Terry Donohue immediately subpoenaed records from all known medical providers and quickly established that there was no mention of any cervical accident or even treatment in the treating records for many months. From these records we were also able to demonstrate that the Petitioner was, in fact, obtaining regular medical treatment during this long interval and therefore had access to doctors to whom he could have described the accident. The records also revealed prior neck complaints.
We next arranged an IME from an experienced practicing spinal surgeon and provided him with all relevant records. Our IME observed a wide variety of pain complaints, and multiple non-organic pain signs. From this examination, along with the voluminous subpoenaed records provided, our doctor opined there was no causal connection to the alleged work accident, and further questioned whether an accident ever even occurred.
The depositions of both IME doctors were taken. Due to the care taken in selecting a highly qualified doctor and providing that doctor with all relevant medical records as well as a detailed understanding of the issues involved, our doctor presented as far more credible and better informed than Petitioner’s IME.
At trial Petitioner was repeatedly confronted with the medical records showing that it was many months and numerous medical visits after the accident until Petitioner finally articulated neck complaints and a history of the alleged accident. In addition to the medical evidence, attendance timecards were effectively presented during cross examination to establish that the Petitioner had been untruthful, and that he actually had left work early on that date with an unrelated illness. We also rebutted Petitioner’s explanation, that he feared he would be fired if he notified the employer immediately, by presenting documentation of multiple other prior work accident notifications previously turned in by the Petitioner. Two witnesses from Respondent also testified that, contrary to Petitioner’s testimony, that he had not notified them of the alleged accident until many months later.
As the evidence against him mounted, the Arbitrator observed the Petitioner become increasingly agitated and confrontational. In his Decision, the Arbitrator viewed the Petitioner as exhibiting a complete lack of forthrightness and a lack of respect for the Commission. The Arbitrator found no accident, and denied the requested cervical fusion, and the claim for 3 years of TTD benefits.
Unrelated or unnecessary spinal fusions often present very significant and dangerous exposure scenarios for Respondents if not defended vigorously. This case illustrates how a comprehensive defense based on a thorough presentation of medical and factual evidence can effectively defeat such claims.
Inman & Fitzgibbons recently prevailed at arbitration and on review in a recent case handled by Jynnifer Bates on the petitioner’s 19b / 8(a) Motion for additional medical treatment. The petitioner’s claim was accepted with respect to his diagnosed herniated disc, for which he treated conservatively. Respondent denied additional medical treatment after its IME doctor opined that the petitioner had reached maximum medical improvement and was able to return to full duty work. Petitioner continued to treat. In January 2011, the petitioner was discharged from physical therapy, and he stated that he experienced 85% improvement in his condition.
The Arbitrator found that the treatment that the petitioner through the date of trial was medically causally related to his work accident, and that the treatment rendered through the date of trial was reasonable and necessary. He awarded 12% person as a whole for the petitioner’s herniated disc, and found that the petitioner was in need of no additional medical treatment, and that he had reached maximum medical improvement for his compensable accident. The Arbitrator also awarded TTD benefits and payment of medical expenses through the date of the petitioner’s discharge from physical therapy.
Petitioner appealed to the Commission on the issues of the claimed entitlement to additional medical treatment, his entitlement to vocational rehabilitation, and the nature and extent of his injury. Petitioner argued that the petitioner had experienced significant improvement, but not maximum medical improvement, at the time of trial. The Commission affirmed the Arbitrator’s decision, and found that the petitioner failed to show that he was entitled to additional medical treatment, and that an Arbitrator is permitted to reach a finding regarding maximum medical improvement even in the absence of a medical expert’s categorical statement regarding a petitioner’s permanent condition. The Commission also affirmed the Arbitrator’s decision that the petitioner’s injury was valued at 12% person as a whole, thereby affirming that the petitioner was not entitled to vocational rehabilitation or wage differential benefits.
The Commission has announced March 19 and June 19 as the Chicago open house dates for the first half of 2014.
The program will begin at 9:15 am. After an overview of the court process, visitors will observe arbitration hearings and review-level oral arguments. After oral arguments end, there will be a question-and-answer period with commissioners. The program will end around 12 noon.
There is no charge to attend, but registration is limited. When the Commission announced an open house in Chicago in January 2010, the seats filled up on the day it was announced. Subsequent programs also filled up and have been well-received. In all, over 800 people have signed up to attend. You can read the announcement and sign up here.