I&F Convinces Commission to Reinstate Permanency Award in lieu of Permanent Total

In a case appearing for the 3rd time before the IWCC, the Commission reinstated its prior permanency award instead of original Permanent Total award. In a case that was initially tried in September 2007, the Arbitrator found the claimant to be permanently and totally disabled and the decision was affirmed by the Commission.

Following our successful appeal to the Circuit Court, the Commission’s original decision was set-aside and remanded by the Circuit Court due to “a substantial sparsity of objective evidence . . . most, if not all of the physicians’ findings are based on petitioner’s subjective statements.” In this case, the petitioner, a 41-year old nurse, was assisting a resident when the resident fell backward on top of the petitioner on a carpeted floor on May 1, 2004. Accident was not disputed. The petitioner experienced immediate pain in her tailbone area. X-rays taken on that day did not reveal a coccyx fracture. Later x-rays, MRI scans and bone scans all revealed no fractures. The petitioner was diagnosed with a tailbone contusion but claimed extreme disability and never returned to work.

In a March 2010 decision, the Circuit Court further noted that the Arbitrator based her permanent and total disability award on a September 26, 2006 letter to the petitioner’s attorney from a treating physician who indicated that he did not believe that [the petitioner] could work as she appeared disabled and could not sit or stand for any length of time.” However, the Arbitrator did not address the rest of the same letter, in which the doctor indicated that “he did not have any objective findings, either radiological or physical, to explain her symptoms.” The Arbitrator did not comment on the seven medical opinions advising that the petitioner did not need further treatment and was at MMI. The Circuit Court was very critical of the lower courts in its decision setting aside the Commission’s decision. The Circuit Court advised the Commission on remand to “weigh the medical evidence and draw inferences from the testimony of the claimant and exhibits admitted into evidence.” The Court noted that it was “concerned about the disconnect between the lack of objective findings and the subjective complaints of [the petitioner] together with the lack of discussion of this important factor by either the Arbitrator or the Commission.”

In 3+ years following the Circuit Court set-aside the decision and remanded the case back to the Commission, in which time the claimant did not secure a briefing schedule or oral argument date, the Commission issued a new decision in April 2013 and awarded 20% MAW and 97 weeks of TTD benefits. The claimant appealed to the Circuit Court, and in October 2015, argued that the claimant’s due process rights were violated since she was not allowed to file a brief or participate in oral arguments at the Commission before a new decision was rendered. The Circuit Court agreed and vacated the April 2013 Commission decision and remanded the case back to the Commission for briefs and oral argument.

Following briefs and oral arguments by both parties before the Commission, the Commission issued a decision (for the 3rd time) in November 2016 and essentially reinstated its complete and well-reasoned decision to award permanency benefits in lieu of a Permanent Total award.

The Petitioner has appealed to the Circuit Court for a 3rd time.

Congratulations to I&F Partner Mark Carter for the excellent result.

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