Will Illinois Be One of the Next States to Legalize Recreational Marijuana? Yes! Well…maybe.

When Illinois joined 22 other states to legalize the use of medical marijuana, we began informing our readers that this could be the first step on a slippery slope down which Colorado and Washington, and now Alaska, have already gone – legalization for recreational use.  We can certainly debate the pro’s and con’s of legalization of marijuana for recreational use, making it as available to the general public as cigarettes or alcohol, but the primary catalyst to the discussion of whether to take that next step has always been money.  The State of Illinois is in economic crisis and it needs revenue.  We have yet to see what additional revenue the State has collected from the implementation of the “Compassionate Use of Medical Cannabis Pilot Program Act,” which was signed into law by Governor Pat Quinn in August 2013, because the Act has not been fully implemented until this year.  But if we look to some of the other states that are ahead of us, you can see why state legislators have put forward legislation to legalize recreational marijuana in Illinois .  Yes, there IS a bill introduced in Springfield.

Reports indicate that Colorado, one of the first to legalize recreational marijuana (and give new meaning to John Denver’s “Rocky Mountain High”) is bringing in approximately $11,000,000 per month in sales and excise taxes on marijuana.  Yes, that is $11MM per month!  One source has estimated that if you adjust the numbers to the higher population in Illinois, that number in Illinois could result in monthly income as high as $26.8MM per month, or about $321.5MM per year!  Similarly, Washington, which also legalized recreational marijuana in time for the Superbowl between the Denver Broncos and the Seattle Seahawks (ironic really), is averaging $2,400,000 per month. Using their taxation model and recalculating to Illinois population, you’ll see numbers still around $300MM per year.  Easy money is very tempting.

House Bill 4276 (HB4276) sponsored by Rep. Kenneth Dunkin (D – 5th Dist. Chicago) is quite simply titled, “CANNABIS REGULATION&TAXATION.”  The bill would create the Cannabis Regulation and Taxation Act. It would permit, for persons 21 years of age or older: (1) possessing, consuming, using, displaying, purchasing, or transporting cannabis accessories; (2) possessing, growing, processing, or transporting no more than 8 cannabis plants and possession of the cannabis produced by the plants on the premises where the plants were grown; (3) transferring 30 grams or less of cannabis or up to 6 immature cannabis plants to a person who is 21 years of age or older without remuneration; and (4) assisting another person who is 21 years of age or older in any of these acts.

This bill would also create an excise tax imposed at the rate of 10% of the sale price of the sale or transfer of cannabis from a cannabis cultivation facility to a retail cannabis store or cannabis product manufacturing facility. It would also amend the Unified Code of Corrections to create a new regulatory offense classification of offense, which is not to be considered a criminal offense, but a fine only for the amount specified in the offense or for which community service may be imposed for violations of this Act, and it would change various currently existing penalties for the possession of more than 30 grams of cannabis and for producing or possessing more than 8 cannabis sativa plants.  According to the Illinois General Assembly website as of May 20, 2016, this bill had been referred to the Rules Committee back in August 2015 and advanced no further.  While it did pass out of both House and Senate last year, Governor Rauner used his veto power to put it to rest.  In a nutshell, this bill has died in the initial planting stage.

But, there is another bill currently active that decriminalizes the possession of 10 grams or less of marijuana.  Senate Bill 2228 (SB2228) has bipartisan sponsorship in both the Senate (14 sponsors) and the House (9 sponsors).  This bill, while not setting up a more formalized legalization and taxation of recreational marijuana, is a first step in that direction and has gained some traction.  In short, the bill will amend the Cannabis Control Act, providing that that the possession of 10 grams or less of cannabis will be a civil law violation punishable by a minimum fine of $100 and a maximum fine of $200.  (Currently marijuana possession of up to 10 grams is a class B misdemeanor  punishable by fines up to $1,500 and up to six months in jail.)  The law will also create the offense of unlawful use of cannabis-based product manufacturing equipment as a Class 2 felony. It will continue to permit any municipality or unit of local government to impose a fine for the possession of cannabis and  not invalidate or affect those local ordinances.  It will also amend the Illinois Vehicle Code by providing that a person shall not drive or be in actual physical control of any vehicle, snowmobile, or watercraft within this State when the person has, within 2 hours thereof, a tetrahydrocannabinol (THC) concentration in the person’s whole blood or other bodily substance of 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood or 10 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of other bodily substance from the unlawful consumption of cannabis (rather than a cannabis THC concentration in any amount as currently exists in the Illinois Vehicle Code). It will also amend various other Acts to so as to conform with this new law, and it would take effect immediately upon being signed into law.  This more recent bill incorporates the changes that Rauner wanted to see in HB4276 (i.e. lower allowed possession and higher fines).  With that being the case, it is strongly anticipated that Governor Rauner will sign off on the bill should it make its way to his desk.

On May 18, 2016, SB 2228 passed in both the House and the Senate.  Next stop?  Governor Rauner’s desk.  It may be a very happy Memorial Day Weekend for some.

Thanks to I&F Partner Steve Murdock for this timely reporting.  Steve has  counseled Illinois businesses on this issue since it arose and we encourage Illinois employers and insurers to reach out to him with any questions as to how this might affect the workplace.

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I&F’s Michael Bantz Prevails in Accident Dispute

Attorney Michael Bantz recently secured a favorable Arbitration decision in a case where the Petitioner had claimed that she had hurt her low back while lifting a bag of salt.  In this case, the Respondent was able to prove that the Petitioner did not have a work accident.  The Arbitrator found that that the Petitioner’s testimony was less reliable than the medical records, which did not contain any reference to the alleged work accident.  The Petitioner’s testimony also conflicted with statements that she made to several different treating physicians, as well as the testimony of a witness from the employer.  In weighing the inconsistent testimony of the Petitioner against the testimony of a witness from the employer and the medical records, the Arbitrator found the petitioner was not credible and did not award any benefits.  A review of this Decision is not being sought before the IWCC.

Congratulations to Michael for the excellent result.

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Be Careful What You Ask For

Partner Terry Donohue from our office recently prevailed at trial in a claim in which the question of whether the petitioner had an accident was heavily disputed. The petitioner testified to a work injury in July  of 2011 that occurred when she was unloading a semi-truck when a box above her became loose and fell, striking her right shoulder area. She finished her shift without reporting anything, and then called off the second day without saying anything about a work injury. Petitioner then went to the emergency room on the third day and said she hurt her shoulder/clavicle three days ago, but gave no mechanism of injury.  At trial, petitioner stated that prior right shoulder and neck treatment was different than her current problem. She testified that the accident absolutely occurred and that the respondent should have surveillance video proving the same.  She also alleged that the respondent was likely withholding statements corroborating the accident from co-workers.  Petitioner testified that she did not immediately claim a work injury because she was afraid she would get fired.

Respondent presented testimony of petitioner’s supervisor and a loss prevention manager. They each testified that the petitioner, after failing to show up on the third day with no explanation, was finally reached on the fourth day.  At that time she stated that she fell in the shower at home and injured herself. They further testified that petitioner voiced frustration at that time because her group medical insurance was not going to start for another 2 weeks.  The petitioner’s supervisor and the loss prevention manager also testified that, about two weeks later, the petitioner changed her story and said this was actually a work injury.  The loss prevention manager testified to his subsequent investigation and statements from co-workers confirming that no accident had been witnessed by these employees or discussed with petitioner.

The loss manager also confirmed that there was video footage of the alleged date of accident.  The video was offered into evidence after the parties and the arbitrator viewed the video which, contrary to the petitioner’s testimony, did not show any accident or suggestion of pain or injury on the part of the petitioner.

In addition to the factual evidence and testimony, we subpoenaed medical records showing significant prior treatment to the petitioner’s allegedly injured shoulder and neck. We also obtained the opinion and testimony of an IME shoulder specialist, who stated that there was no evidence of an acute accident, either in the medical histories or from his own examination and review of the diagnostic studies,

Congratulations to Terry for the excellent result!

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I&F’s Judy Nash Goes 2 for 2 on Appeal

I&F’s Judy Nash recently recorded a pair of wins on behalf of Illinois employers.  In the first, the Circuit Court of Lake County affirmed the Commission finding that the petitioner failed to establish a compensable injury that allegedly occurred in a fall in the lady’s room on the premises of the employer.  Following a hearing over the course of three days, Judy was successful in obtaining a decision finding that the petitioner, a Records Input Operator for a municipality in the northern suburbs, was not credible and the evidence established that she did not sustain a compensable work injury.  In support of its denial, the respondent produced security camera footage of the petitioner immediately following the alleged fall at work walking in the hallway and a witness who was in the lady’s room at the time of the alleged injury.  Additionally several Police Officers testified in support of the respondent’s position and an on-site inspection of the ladies room was conducted by the Arbitrator.   This result represented a significant savings for the respondent as the petitioner had two failed rotator cuff repairs and had been recommended for a shoulder replacement.

Judy was also successful before the Appellate Court on an issue involving Section 11 of the Act.  A Rule 23 decision from the Appellate Court affirmed the decision of the Circuit Court, Commission and Arbitrator  finding a Fire Department employee’s two knee injuries that occurred while he was participating in a voluntary recreational program were not compensable pursuant to section 11 of the Act because he was engaged in a voluntary activity.    The petitioner alleged two separate knee injuries while jogging and during exercise at the city’s health club.  Petitioner was a participant in a City sponsored fitness challenge program offered to all employees and spouses. The petitioner underwent a left knee arthroscopic partial medial meniscectomy followed by a right arthroscopic partial medial meniscectomy.  At trial, the respondent produced the petitioner’s employment contract to establish that he had no formal requirement relating to physical fitness.

Congratulations to attorney Judy Nash for the excellent results.

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Lenhart v. IWCC: A Lesson to be Prepared for Anything

The Illinois Appellate Court has in the past held that if a claimant fails to present evidence regarding his entitlement to a wage differential award, then he implicitly waives his right to such an award. The Lenhart case suggests that there are exceptions to that rule.

The claimant in that case worked as a dockworker and truck driver. He filed an Application for Adjustment of Claim alleging a low back injury resulting from a December 2004 accident. Accident and causation were not disputed. The employer also did not dispute that the claimant could no longer perform the same physical demand level as a result of the accident. However, the parties disputed the extent of the claimant’s injuries.

At the arbitration hearing, the claimant presented evidence in an attempt to show that he was permanently and totally disabled (PTD), which the employer disputed. At the conclusion of the arbitration hearing, the arbitrator found that the claimant proved that he was permanently and totally disabled as a result of the work-related accident under an odd-lot theory. The employer appealed the arbitrator’s decision.

On appeal, the employer asked the Commission to reverse the arbitrator’s permanent total disability benefits award and enter judgment awarding the claimant wage differential benefits based on the vocational expert testimony. The claimant did not argue that he was entitled to an award based on a wage differential calculation, but instead requested the Commission to affirm the arbitrator’s PTD award. The Commission reversed the arbitrator’s PTD award and modified the award to PPD benefits representing 75% loss of use of the whole person. The claimant appealed the Commission’s decision to the Circuit Court. The Circuit Court entered a judgment confirming the Commission’s decision.

  • APPELLATE COURT DECISION

On appeal to the Illinois Appellate Court, the claimant raised two alternative issues. First, the claimant argued that the Commission’s finding that he failed to prove that he was entitled to PTD benefits was against the manifest weight of the evidence. Second, the claimant advanced an alternative argument that the Commission erred in failing to consider his right to receive PPD benefits based on a wage differential award.

The Court upheld the Commission’s finding that the claimant failed to prove that he was permanently and totally disabled under an odd-lot theory. However, the Court also held that the Commission erred in failing to determine whether the claimant was entitled to a PPD benefit award based on a wage differential calculation, rather than a percentage of a person as a whole award, and remanded the case to the Commission for a determination of whether the claimant was entitled to a PPD award based on a wage differential calculation.

In coming to this conclusion, the Court reasoned that the employer raised the question of whether the claimant should receive a wage differential by arguing the issue in its brief before the Commission, and that it was an issue that appeared from the evidence of record. The Court determined that the employer’s medical expert and vocational expert testimony, as well as the stipulation that the claimant could no longer meet the physical demands of his usual and customary line of employment, were enough to meet the requirements to qualify for a wage differential award.

The Court determined that although the claimant did not request a wage differential award, nothing in the record suggested that the claimant explicitly elected to waive his right to recover a wage differential award under section 8(d)(1).

The Court distinguished its prior holding that if a claimant fails to present evidence regarding his entitlement to a wage differential award, then he implicitly waives his right to such an award. The Court indicated that even though the claimant did not pursue PPD benefits, the record contained evidence relevant to the claimant’s entitlement to a wage differential award. Also, nothing in the record suggested that the claimant’s request for the PTD benefits should be construed as an election, express or implied, with respect to his right to PPD benefits. The Court held that in cases where a claimant unsuccessfully seeks PTD benefits and does not make an alternative request for PPD benefits, the claimant is still entitled to PPD benefits when the evidence supports such an award. The Court further held that, in such cases, the Commission is obligated to consider a wage differential award when there is evidence in the record that could support a wage differential award, regardless of which party presented the evidence, and when nothing in the record suggests that the claimant elected to waive his right to recover such an award.

  • DISCUSSION

From a Respondent’s perspective, it is important to note that the petitioner need not specifically request a wage differential award in order to qualify and potentially be awarded a wage differential award. Employers or their agents must be prepared to defend against a wage differential award even if the petitioner has never requested one, particularly if the employer stipulates that the claimant cannot meet the physical demands of his usual and customary line of employment and there is evidence in the record that may support a wage differential award. The Court’s preference for a wage differential award over an 8(d)(2) person as a whole PPD award is also emphasized in this decision and worth noting.

Thanks to attorney Allison Mecher for the excellent summary of this important case.

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Petitioner’s Claim for Surgery goes Up In Smoke

A recent decision by the Illinois Worker’s Compensation Commission gives Petitioners yet another incentive to quit smoking.  In Carolyn Schoonover, Petitioner v. Porta Cmty. Unit Sch. Dist.. #202, Respondent, 05 IL. W.C. 51841 (Ill. Indus. Com’n Aug. 18, 2015), the Petitioner’s surgeon had recommended a lumbar spine surgery but was unwilling to proceed with that surgery until the Petitioner had quit smoking cigarettes.  The surgeon’s insistence that the Petitioner quit smoking was based upon the effects that smoking would have on her recovery from surgery and also due to its negative impact on her underlying diagnosis as well.  The Petitioner’s own surgeon testified that the Petitioner had “delayed her own treatment by her continued smoking, and this is going to affect the level of function and degree of disability…”

The Respondent’s expert neurosurgeon testified that “smokers have a much higher rate of chronic low back pain and have a much higher, much longer healing rate for any soft tissue back injury, up to 30% longer.”

The Commission found that the Petitioner had not only failed to quit smoking but had been less than honest about her efforts to quit smoking.  The Commission found that the Petitioner had reached MMI on the date that her surgeon had informed her that he would not proceed with surgery unless the Petitioner quit.  The Commission also noted that the Petitioner’s failure to quit smoking, under the circumstances, was indicative of the true nature of the Petitioner’s condition, contrary to the Petitioner’s statements.  The Commission found that this case involved a Petitioner “who complains of significant and severe symptoms, but who is unwilling to do what she needs to do in order to obtain relief. In our view, this indicates that her symptoms must not be as significant as she claims, or she would have ended her smoking long ago.”

As an important side note here, the Arbitrator and Commission did hold the Respondent liable for the treatment associated with Petitioner’s smoking cessation efforts.

Keep in mind that in instances where the Petitioner fails to cooperate with rehabilitation efforts or is engaging in injurious practice, this can be a legitimate basis to terminate benefits.  As this case demonstrates, this can include a situation where an injured employee chooses to continue smoking rather than quitting, where quitting is required by a physician in order to proceed with surgery.

Thanks to attorney Michael Bantz for the summary of this important case for Illinois employers.

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Lauren Waninski elected to Women’s Bar Association Board of Directors

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Congratulations to Associate Lauren L. Waninski on her election to the Women’s Bar Association of Illinois (WBAI) Board of Directors.  Lauren has been a member of the WBAI since her time at the John Marshall Law School and currently serves as Co-Chair of the Website Committee, Co-Chair of the Newsletter Committee and a Delegate of the First District House of Delegates. Lauren will serve on the Board of Directors beginning a two-year term this 2016-2017 bar year.  She will be sworn in during the WBAI Installation Dinner on June 8, 2016. Additional details can be found online at https://wbaillinois.org/.

An Eye for an Eye? A look at compensation for the loss of an eye.

Determining the appropriate amount of compensation for the loss of an eye has always been somewhat difficult.  In Gilbert & Shughart Painting v. IIC, 136 Ill.App.3d 163 (1985), the court had to decide what the extent of loss should be awarded for an eye to a claimant who lost almost complete use of his eye, but whose corrected vision was almost totally restored to normal.  The court reasoned that the permanent, uncorrectable reduction of the claimant’s near vision, and his diminished stereo vision and depth perception, provided further justification for an award of 100% of the left eye.

In a case filed nearly 10 years after that decision,  Miroslaw Dziadkowiec v. Barrett Enterprises, 06IWCC0592, the Commission awarded 100% loss of the eye despite the fact that the claimant’s corrected vision was much improved by an artificial lens and glasses.

The trend appears to be that the Commission can base its award for loss of vision on several factors including corrected vision, uncorrected vision or a hybrid of both.  So when dealing with a loss of vision claim, what evidence does the respondent put forth to mitigate its liability and permanent partial disability (PPD) exposure?

Both of these cases date back prior to the 2011 amendments to the Illinois Workers’ Compensation Act.  The respondent can now look to Chapter 12 of “The Visual System,” AMA Guides to the Evaluation of Permanent Impairment. This chapter focuses on the pertinent eye examination and the visual acuity measurements with best correction to determine a best corrected visual acuity score for each eye.  Visual acuity is defined as the sharpness of vision, usually as measured with the use of a Snellen eye chart. 20/20 is considered normal visual acuity, although some people can see even better (such as 20/15 or 20/10).  (If you can read the bottom row of letters on the eye chart, your visual acuity is very good).

The use of the AMA Guides to the Evaluation of Permanent Impairment should be considered as allowed by the amendments to the Act in 2011. The amendments to the Act allow for the use of AMA guidelines for impairment ratings for all accidents with dates of accident on or after September 1, 2011.  It is important to note that the Act does not provide for compensation for impairment, but rather for disability.  Therefore, these guidelines should be considered as a starting point as the arbitrator must then consider all other factors including medical records, age, and occupation of the claimant to then translate the impairment rating into permanent partial disability (PPD).  Obtaining such an impairment rating to show a claimant’s best corrected visual acuity score for each eye may now lead to a lower PPD value.

Thanks to attorney Lauren Waninski for the review.

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I&F Prevails in Causation Dispute involving Pre-Existing Condition

Attorney Kristin Thomas recently had a favorable arbitration and Commission decision affirmed by the Circuit Court of Cook County. In this case, petitioner was pulling cable at work when he had a pop in his shoulder. He subsequently underwent surgery for an accepted rotator cuff tear. Three months after the accident, Petitioner began complaining of neck symptoms, for which he ultimately underwent a three level fusion and never returned to work. Medical causation between the cervical spinal complaints and the alleged worked accident were at issue. The cervical spine complaints were denied based on our IMEs with two physicians, as Petitioner had pre-existing conditions and severe degenerative disc disease, for which he underwent cervical surgery two years prior to his work accident.

In a trial that included physician depositions and testimony from the claimant, the Arbitrator found that Petitioner failed to meet his burden of proof regarding medical causation with respect to the compensable work accident and alleged cervical spine injury. In defeating the alleged cervical spine injury, Kristin saved the employer potential trial exposure up to $275,000.00. The case will not be appealed to the Appellate Court.

Congratulations to Kristin for the excellent result.

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What’s New in 2016? A Look at 2 Recent IWCC Cases

In this post I&F veteran attorney Lauren Waninski reports on some interesting new cases making their way through the Illinois WC system:

  • When employment  extends to the home

Bolingbrook Police Dept. v. IWCC, 2015 Ill. App. 3d. 130896WC

In Bolingbrook Police Dept. v. IWCC, the Appellate Court confirmed the decision of the Commission.  At issue was whether the petitioner’s injuries were in the course of his employment for the respondent.  The petitioner, a police officer, was injured when lifting his work bag into the trunk of his personal vehicle at his home. The court reasoned that because the petitioner was provided with the option of keeping his work bag with him at his personal residence for safekeeping, the safekeeping of the work bag was a job-related undertaking and thus furthered the employer’s interests when the petitioner performed tasks before and after a shift.  As such, the court found the petitioner’s injuries occurred in the course of his employment for the respondent.

Possible Implications:

How far does this reasoning extend to injuries sustained outside the work place? Many employees carry bags filled with items they use for work. At what point will these items be considered ‘requisite’ to their employment? Gym shoes for gym teachers? Books for librarians? IPads for teachers? Is an injury sustained while working from home now considered to be in the course of employment because it furthers the employer’s interests?

Employers should be fully aware of the tasks their employees perform before and after their shifts and determine what, if any, of those tasks are requirements of the employment. Further, employers should consider how those tasks may be construed by the courts to be in furtherance of the employment.

  • When a dispute based on Notice isn’t enough to defeat a Penalties Petition

Oliver v. IWCC, 2015 Ill. App. 1st, 143836WC

In Oliver v. IWCC, the respondent denied benefits based on the petitioner’s failure to report his accident on the day of and coincidentally the last day of his employment. The petitioner reported his accident to his employer six days later. The court found that penalties pursuant to Sections 19(k) and attorneys’ fees pursuant to Section 16 (19(k) and 16 require more than an “unreasonable delay” in payment of benefits) were appropriate based on the respondent’s deliberate decision not to honor its statutory obligations to the petitioner based solely on the petitioner’s failure to report the accident on the day it occurred.

Possible implications:

Generally, the notice requirement states that the claimant must provide notice of a work-related injury within 45 days to the employer. Denying a claim based on notice alone may not be enough, even if notice is provided after the 45 day time period. The respondent should also consider other options for a basis of denial, specifically accident and medical causation, when denying benefits.

Thanks to attorney Lauren Waninski for bringing these cases to our attention.

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I&F Welcomes Jack Arnold to the Chicago Office

Inman & Fitzgibbons is pleased to announce that Jack Arnold has joined the firm and will be based in our Chicago office.

Jack graduated from John Marshall Law School in May of 2015. During law school, he participated in the Business Enterprise Law Clinic, worked as law clerk at personal injury firm, and in the compliance department of a legal consulting firm. He then worked with corporate counsel in an investment firm. Jack is a member of the Chicago Bar Association, Illinois State Bar Association, and American Bar Association. Jack will join the Employers Liability Defense, General Insurance Defense, and Workers’ Compensation Defense practice groups.

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John E. Cunningham, IL WC veteran, passes away

Inman and Fitzgibbons and the Illinois Workers’ Compensation community mourns the loss of Mr. John E. Cunningham Esq. who practiced before the Commission for over 40 years and was held in the highest esteem by his colleagues.

John E. Cunningham Esq., age 85, Navy veteran of the Korean War, was born June 30, 1930, and passed away March 28, 2016. Mr. Cunningham practiced law for 50 years and had worked for Zurich Insurance as an investigator and then at Wausau/Nationwide as a trial compensation attorney along with his private practice. He also enjoyed golf and in his later years woodworking.

Visitation will be held Friday from 4-8pm at Smith-Corcoran Funeral Home, 185 E. Northwest Highway, Palatine. Prayers will begin Saturday 9:30am from the funeral home to St. Theresa Church for Mass at 10am.

In lieu of flowers, donations to Blue Cap, 2155 Broadway, Blue Island, IL 60406. For info, 847-359-8020 or visit John’s memorial at http://www.smithcorcoran.com.

Important Impairment Rating Reminder!

The 2011 Amendments to the Illinois Workers’ Compensation Act allow Arbitrators to use five factors to determine the level of a claimant’s permanent partial disability. One of these factors is the reported level of impairment pursuant to an AMA impairment rating.

The Act specifies that “the most current edition” of the AMA’s “Guides to the Evaluation of Permanent Impairment” shall be used by the physician in determining the level of impairment. To comply with the Act, employers must ensure that any physician performing an impairment rating is using the most current edition of the AMA Guides. At this time, the Sixth Edition is the most current version, but also includes any addenda issued by the AMA.

Failure of the physician to use the most current edition of the AMA Guides can open the door for the claimant’s attorney to attack the physician’s impairment rating at a deposition, possibly reducing the weight given to it at Arbitration. It may also reduce the value of the impairment rating in any settlement negotiations. Obtaining an impairment rating can be expensive for the employer, and it only accounts for one of the five factors used to determine permanency, so the goal is maximizing the value of the impairment rating. Ensuring use of the most current edition of the AMA Guides is essential to attain this goal.

Accordingly, prior to obtaining an impairment rating, employers or their agents should make sure that the doctor performing the rating is using the Sixth Edition of the AMA Guides and has a subscription to receive any addenda issued by the AMA.

Thanks to attorney Allison Mecher for this essential reminder.

Arising from a Squat ≠ Accident Arising out of Employment

Partner Steve Murdock recently prevailed in a Section 19(b)/8(a) Trial on the defense that an employee arising from a squatting position is not at a greater risk for injury than a member of the general public, particularly when the squatting position is for about 15 minutes and the employee is neither lifting or carrying anything as he arose.  In this case, the employee was participating in some emergency training exercises with fellow employees.  While doing so, he went into a squat position for approximately 15 minutes.  When he stood up, he felt a pop in his knee, but was able to carry on with the rest of his daily activities.  An initial examination later that day failed to reveal any abnormalities.  A subsequent examination about five weeks later for continued knee pain complaints, including an MRI, again failed to reveal any abnormalities.  The claimant saw an orthopedic surgeon approximately four months later, after going on two snow skiing trips to Colorado and Michigan, complaining of worsening knee pain, and this doctor found a possible meniscal injury on the MRI films.  Respondent’s Section 12 IME found the MRI films to be normal as did the treating physician who prescribed the MRI.

The arbitrator found that the claimant failed to prove he was exposed to a risk greater than that to which the general public is exposed on the alleged date of accident.  In doing so, the arbitrator found that there was no other evidence aside from the claimant’s initial medical history and his testimony that he arose from a squatting position to standing after about 15 minutes and felt a popping sensation in the right knee.  There was nothing peculiar about the employment location or anything regarding equipment he was lifting or carrying when this occurred that would place the claimant at a greater risk for this injury than the risk to which the general public is equally exposed.  For that reason, the arbitrator found that the claimant failed to prove a compensable accident.

On the issue of causation, the arbitrator noted that three doctors, the occupational medicine physician, the claimant’s first choice of doctor and the respondent’s IME, found the claimant had nothing more than a strained knee at the time of the incident.  The MRI radiologist also reported normal findings on the MRI.  The only doctor to suggest possible internal derangement was the claimant’s second choice of physician, who first saw the claimant about eight months after the incident and after the claimant “may have tweaked” his knee while snow skiing.  The arbitrator concluded that the petitioner failed to establish by a preponderance of the evidence a medical causal connection between the possible internal derangement and the alleged accident.

Maintenance Benefits: No Reward for Lackluster Job Search

In a recent Commission case, Roman Sobolyev v. Yellow Transportation, 15 I.W.C.C. 0623, the Commission rejected Petitioner’s claim for maintenance benefits and found that he performed an inadequate job search.  The Commission’s evaluation of Petitioner’s job search, or lack thereof, outlined the Commission’s expectations of what constituted a legitimate job search to justify awarding maintenance benefits.

In this case, Petitioner was a truck driver who sustained work-related injuries to his right middle finger, right shoulder, and low back.  Following the accident, Petitioner received temporary compensation and medical benefits.  At trial, the Arbitrator found that Petitioner was unable to return to his previous employment due to his work-related condition but also found Petitioner’s job search to be fraught with inconsistencies and inadequacies, resulting in a denial of maintenance benefits.  At trial, Petitioner admitted a forty-seven (47) page job search log and testified that he contacted over three thousand employers, searched ethnic newspapers, and used the internet in the course of his job search.

The Arbitrator found that Petitioner’s testimony and job search log lacked credibility and sufficiency.  Specifically, the Arbitrator found it highly questionable that Petitioner searched for jobs in states in which he was not residing.  He also found that the job log “lack[ed] sufficient proof to be considered adequate.”  Only three pages of the log identified the employer, the person with whom he spoke, and the position for which he applied.  Throughout the job log, Petitioner also failed to identify the positions for which he was applying and applied for several jobs that he was physically incapable of performing.  Furthermore, Petitioner never indicated whether any resumes or applications were submitted to the alleged employers.

In reaching their respective decisions, the Arbitrator and Commission relied on several prior Commission decisions addressing job searches.  In Wheeler v. Baldwin Manufacturer, 11 W.C. 34788, the Commission found Petitioner’s job search to be inadequate where he applied for positions for which he was unqualified or at places that were not hiring.  In Burnett v. Weaver Enterprises, 09 I.W.C.C. 1255, and Sparkman v. Aventine Renewable Energy, 11 I.W.C.C. 0492, the Commission found job searches to be inadequate where the employee made no in-person job applications and failed to list specific details regarding his search (e.g., dates of contact, persons contacted, positions applied for, outcome of contact).

In the end, the Arbitrator found that “irrespective of the lack of credibility of Petitioner’s testimony of his job search, this Arbitrator cannot find a list of employers and phone numbers evidence of an adequate job search.”  The Commission agreed.

From a defense standpoint, the Commission’s Decision not only offers insight as to what constitutes an inadequate job search, but also confirms that the Commission will thoroughly examine the evidence in evaluating the reasonableness of an employee’s job search.  Perhaps the Commission said it best in Witherspoon v. White County Coal Company, 11 I.W.C.C. 0114, when it stated that “[t]he law is clear.  It does not emphasize the number of contacts but recognizes the type and quality of contacts in job searches.

Thanks to I&F attorney Dane Kurth for this excellent summary.

I&F HR Training Seminar Reminder!!

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On March 31 and April 1, Steven Murdock will hit on some of the myths and pitfalls of employers and their claims administrators – including mistaken assumptions of law, and obligation oversights – and provide ways of avoiding them with the goal to help attendees discuss these beyond this presentation and prevent these in the future.

REGISTRATION:
Thurs, March 31, 2016 – 9:30 am – 11:00 am 
300 S. Wacker Dr., 8th Floor Conference Room,
Chicago, 60601

OR 

Fri, April 1, 2016 – 7:30 am – 9:00 am
750 Warrenville Road, Ste 400,
Lisle, 60532

Both locations include light breakfast, all written materials, and certificate

Early Bird – (for everybody – sign up before Mar 21) – $40.00
Member (For members of Illinois Chamber or local Chamber partners) – $50.00
Non-Member – $60.00

This seminar is pre-approved to offer 1.5 HRCI credits
This seminar is pre-approved to offer 1.5 SHRM- PDCs
This seminar is submitted for approval to offer 1.5 CLEs

To register or for questions about this event contact Pam Holleman:

(855) 239-6150 or pholleman@ilchamber.org

1st District Actively Engineers Investigation of Wage Differential in the case of Injured Stationary Engineer

The calculation of wage differential benefits is not always simple arithmetic. A recently decided 1st District Appellate Court case is an instructive reminder of the process Illinois courts use in determining a wage differential benefits award and the Respondent’s potential exposure in these types of cases.

The fact pattern in Jackson Park Hospital v. The Illinois Workers’ Compensation Commission et al. (Kathy Jenkins, Appellee) had a long and tortured history; only a few points are necessary for our discussion of wage differential benefits. The petitioner was employed as a stationary engineer and suffered injuries to her neck, low back, and left knee in a work-related accident. She was given permanent work restrictions and the Respondent accommodated those restrictions by placing her in a public safety officer position within its security department. Though most public safety officers start out making $8.34 per hour, the petitioner continued to make her pre-injury wage of $23.61 per hour. Eventually, the petitioner was fired from her job as a public safety officer.

At the arbitration hearing, the Arbitrator found that the petitioner was unable to perform the required physical activities of her prior occupation of stationary engineer. However, the Arbitrator also concluded that the petitioner did not prove an impairment of earning capacity as a result of her physical incapacity as she continued to make the same rate of pay as she did before her injury. He denied her request for a wage differential award and instead awarded permanency benefits of 40% loss of use of the man as a whole. The decision was later adopted by the Commission.

The Appellate Court reversed the Commission’s decision. The Court found that the Commission and Arbitrator erred by not conducting an analysis to determine whether the claimant’s post-injury wages reflected her true earning capacity in a competitive job market.

The Court found that the Commission should admit and consider all evidence relevant to the claimant’s true earning capacity. The Court wrote that “it was the duty of the Commission to admit and factor all of the evidence concerning the nature of the claimant’s post-injury employment with the employer, not simply compare her pre- and post-injury wages. It was also the duty of the Commission to factor other evidence concerning positions available to the claimant in the competitive job market based on her restrictions and job skills and determine whether her disability has resulted in an impairment of earning capacity.”

What does it mean?

An Arbitrator must factor all of the evidence in determining if a wage differential award is appropriate, and not just compare pre- and post-injury salaries. The Respondent should also consider using vocational rehabilitation counselors to provide evidence of the earning capacity of the petitioner in the relevant labor market.

Thanks to attorney Frank Johnston for the summary of this informative case.

Cook County Circuit Court affirms two IWCC Decisions in favor of Employer

In a two-pack of cases that we previously reported on, I&F Partner Steven Murdock secured affirmation from the Cook County Circuit Court that the Illinois Workers’ Compensation Commission’s Decisions finding that the claimant was not credible were not contrary to the manifest weight of the evidence presented at trial.  (The arbitrator had also found the claimant not credible in his testimony.)   The first of the two underlying cases involved an accident for which liability was accepted, but for which the nature and extent of the injuries as well as medical causal connection for some of the treatment and lost time was fully disputed.  In that case, the arbitrator and the IWCC found unanimously that the claimant’s testimony as to the extent of his injuries did not match the initial medical history and treatment and that his other inconsistencies throughout the trial created a general lack of credibility on the part of the claimant.  It was found that the petitioner did, in fact, sustain injury, but only to the extent of 15% loss of use of his right hand, not the permanent total disability he claimed following two unrelated surgeries to that hand.

In the second claim, the petitioner alleged exposure to repetitive trauma resulted in an injury to his right shoulder.  In this case, the arbitrator again found the claimant’s testimony not credible and also found that the claimant failed to prove an exposure to repetitive trauma when he had been off work for almost 75% of the four years prior to the alleged manifestation date secondary to prior claims.  The claim was also denied on issue of notice and causal connection, and no benefits of any kind were awarded in this claim.

The Cook County Circuit Court issued its decision after briefing and oral arguments agreeing with our client’s position that the findings of the IWCC were not contrary to the manifest weight of the evidence and should not be disturbed.  The claimant has stated he intends to file further appeal.

 

 

 

Continual Use of Stairway Found Compensable

The Second District Appellate Court recently affirmed the Commission’s holding that a community service officer’s accident while walking down a stairway at the police station arose out of and in the course of his employment.

In Village of Villa Park v. Illinois Workers’ Comp. Comm’n, the claimant fell down stairs when his right knee buckled. At the time of accident he was on duty and going down to the locker room at the police station; thereby, allegedly injuring his right knee and lower back. He testified that several months prior to the work accident, while on vacation, he slipped on ice and injured the same knee. That same day he fell off a woodpile and further twisted his knee. After these initial falls, the claimant was diagnosed with complex tears and knee surgery was recommended.

The Courts at all levels, found the right knee condition to be unrelated to the work accident; however, the back condition was deemed to be related to a compensable work accident. The Court found when an employee is continually forced to use a stairway, both for personal comfort and to complete their work related tasks, and the employer knows of the employee’s weakened condition, the employee’s employment placed the employee in a position with a greater risk of falling. Further, the frequency with which the employee is required to traverse the stairs, in this case approximately six times per day, constituted an increased risk on a quantitative basis for that to which the general public is exposed.

This is an important case as employers tend to analyze risk in the work place by examining job duties and looking to eliminate obviously hazardous environments.  This case highlights the fact that employers will have exposure to injuries to employees with pre-existing conditions where the “risk” is something as routine or mundane as ordinary stair climbing.

Thanks to attorney Kristin Thomas for preparing this excellent summary.

Appellate Court provides new interpretation of Average Weekly Wage calculation

The Illinois Appellate Court recently held in ABF Freight System v. IWCC, 2015 IL App (1st) 141306WC, that the Commission was required to calculate AWW based solely on the wages from the position in which the claimant was working at the time of his accident.

In this case, the claimant sustained an injury to his back in a compensable accident on August 22, 2011 and subsequently underwent a lumbar surgery to address a lumbar disc herniation. Prior to the accident, the claimant had begun working for the Respondent on December 11, 2010 as a non-union, casual employee and worked approximately 19 hours/week for 14 weeks through March 19, 2011. He subsequently obtained his certification as a spotter, at which time he became employed as a full-time employee and worked approximately 36.6 hours per week. He worked in that position for 22 weeks prior to his compensable work accident on August 22, 2011. The claimant earned more as a certified spotter than he did as a causal employee. The Commission only counted the wages that the claimant earned as a certified spotter in its AWW calculation. Respondent contended that it should have used both periods during which the claimant worked for the Respondent, which would have resulted in a lower AWW. The Circuit Court affirmed the Commission’s decision.

Section 10 of the Act provides as follows:

“the compensation shall be computed on the basis of the ‘average weekly wage’ which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employees last full pay period immediately preceding the date of injury, illness or disablement excluding overtime and bonus, divided by 52.”

On appeal to the Appellate Court, the employer contended that “employment” meant the period during which the employee worked for the employer, which would encompass both the period claimant worked as a certified spotter and the period he was a casual employee, which would have resulted in a lower AWW. The Appellate Court rejected that argument and found that the employer’s position was contrary to the purpose and intent of the Act.

The Appellate Court indicated that where the language of a statute is clear, the Court must give effect to its plain language. The Court added that if the meaning of an enactment is not clear from the statutory language, the Court may look beyond the language and consider the purpose behind the law, the evils that the law was designed to remedy and the consequences that may result from construing the law one way or another. The Court added that the intent of the legislature was to make an employee whole after the loss of future earnings to due injury. The Court found that the claimant was no longer a casual employee and that his earnings as a casual employee no longer provided insight into his future earnings. The Court reasoned that the claimant was a spotter and would be losing the wages of a spotter, as opposed to the wages of a casual employee, as a result of his work injury. The Court found that if they were to presume that the legislature intended to measure claimant’s loss by something to which it bears no relationship, they would be attributing to it an absurd and unjust intent.

The Court found the employer’s position regarding the AWW calculation untenable for two reasons; the first being contrary to the purpose of the Act and the second requiring the Court to impute an absurd, unjust intent to the legislature. The Court found that the term “employment,” as used in section 10 of the Act, referred to the occupation in which the employee was working at the time of the injury, i.e., as a spotter. The Court found that the Commission properly used claimant’s employment at the time of his injury in calculating his AWW.

What it means:          The Appellate Court attributed the term “employment” in section 10 to the specific position that the employee was working at the time of his injury and not to (1) the same employer with which he was working during the 52-week period that preceded his accident or (2) the length of time that he had been in a specific position at the time of his accident. It’s unclear whether the Court would have found the employer’s position concerning AWW to be untenable had the claimant worked as a casual employee for 20 weeks and a spotter for 3 weeks.

Thanks to partner Mark Carter for following this issue and providing this summary.