1. WCLA MCLE The Commission Reverses the Arbitrator: Extra Scrutiny? Tuesday April 13, 2010 John W. Powers (Cullen, Haskins, Nicholson & Menchetti, P.C.) & Richard H. Victor (Golstein, Bender & Romanoff), Presenters James R. Thompson Center Auditorium Chicago, IL 1 hour general MCLE credit

2. Issues What is the jurisdiction of the Commission to review the Arbitrator’s decision? Standard of review? What justifies the Commission reversal of an Arbitrator’s decision? Will a reviewing Court apply extra scrutiny when the Commission reverses the Arbitrator? What difference does this all make?

3. Workers’ Compensation Act Sec. 18. All questions arising under this Act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Commission. Sec. 19(b)… The jurisdiction of the Commission to review the decision of the arbitrator shall not be limited to the exceptions stated in the Petition for Review. Sec. 19(e)…If a petition for review and agreed statement of facts or transcript of evidence is filed… the Commission shall promptly review the decision of the Arbitrator and all questions of law or fact which appear from the statement of facts or transcript of evidence. In all cases in which the hearing before the arbitrator is held after December 18, 1989, no additional evidence shall be introduced by the parties before the Commission on review of the decision of the Arbitrator. In reviewing decisions of an arbitrator the Commission shall award such temporary compensation, permanent compensation and other payments as are due under this Act... The Commission may adopt in whole or in part, the decision of the arbitrator as the decision of the Commission. When the Commission does so adopt the decision of the arbitrator, it shall do so by order. Whenever the Commission adopts part of the arbitrator's decision, but not all, it shall include in the order the reasons for not adopting all of the arbitrator's decision.

4. Commission Review: “Sui Generis” Rodriguez v. IIC 371 Ill. 590 (1939) “In Pocahontas Mining 301 Ill. 462 (1922), we said: A review of an arbitrator's decision by the commission, as stated in the Andrus case, supra, is sui generis, since it is neither a review of the record made by the arbitrator nor a trial de novo but a combination of the two... The jurisdiction of the commission to review the evidence before the arbitrator and to consider any further evidence properly presented to it is original jurisdiction as distinguished from appellate jurisdiction… The award of the arbitrator, (is) like the report of the master in chancery…but if it is contested before the commission, the jurisdiction of the commission to review is original jurisdiction as certainly as the action of the circuit court in reviewing or passing upon the master's report and entering final decree is original jurisdiction…We are of the opinion that regardless of whether the commission hears testimony in addition to that heard by the arbitrator, it exercises an original jurisdiction and is in no way bound in such case as this by the arbitrator's findings.”

5. Berry v. Industrial Commission 99 Ill.2d 401 (1984) In its order setting aside the decision of the Commission, the circuit court commented that the arbitrator was in a significantly better position to view witnesses, to weigh the testimony, and to determine the weight to be given to the evidence than was the Commission. This comment ignores the fact that it is the peculiar province of the Industrial Commission to determine the credibility of witnesses, to weigh the testimony, and to determine the weight to be given to the evidence. Regardless of whether or not the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator's findings.

6. Cook v. Industrial Commission 176 Ill.App.3d 545 (1988) In a long line of cases, appellate courts have held that the Commission has original jurisdiction; it may both consider evidence that was presented to its fact-finding agent, the arbitrator, and consider evidence that is first presented to the Commission. See Pocahontas Mining; & Dunker (1984) 126 Ill.App.3d 349…The Commission has authority to determine all unsettled questions and is not bound by the arbitrator's findings, even when it merely reviews the evidence presented at arbitration...In cases where the Commission has rejected the arbitrator's factual findings without receiving any new evidence, it is the function of this court on review to examine the entire record and weigh the evidence to determine whether the factual findings of the Industrial Commission were against the manifest weight of the evidence…While recognizing that the Commission is in no way bound by an arbitrator's decision, we note that the arbitrator's decision is not without legal effect. Quick (1972) 53 Ill.2d 46 & Lewandowski (1969) 44 Ill.2d 204. Further, we note that in performing its role as reviewer of the record, the Commission is at a practical disadvantage as compared to the arbitrator. The arbitrator, having heard the live testimony, is actually in a better position to evaluate that evidence … Luckenbill (1987) 155 Ill.App.3d 106 & Peabody Coal (1924) 311 Ill. 338. Accordingly, in cases where the Commission has rejected the arbitrator's factual findings without receiving any new evidence, we apply an extra degree of scrutiny to the record in determining whether there is sufficient support for the Commission's decision.

7. Post-Cook Cook Followed, Then Not Kress Corp. 190 Ill.App.3d 72 (1989): Kress maintains that while the Commission is not bound by the arbitrator's decision, recent decisions by this court demonstrate that the court will carefully scrutinize Commission decisions which are contrary to those of the arbitrator, especially where no new evidence is presented to the Commission… Adams Truck Lines, 193 Ill.App.3d 814 (1990): The employer relies on our statement in Orkin Exterminating Co. 172 Ill.App.3d at 757 (1988) that an arbitrator's decision is not without legal effect when determining if a decision of the Commission is against the manifest weight of the evidence and our statement in Cook that an extra degree of scrutiny will be applied to the record when the Commission overturns an arbitrator's decision without receiving any additional evidence. Neither of these decisions establishes any basis for changing the standard of review presently employed by the Commission. Further the amendment to Section 19(e) of the WCA makes no change in the standard of review but merely sets forth procedural requirements governing matters on review. Even if we wished to do so, this court may not refashion a rule of review of our own accord, for any such change would be contrary to the holdings in supreme court cases, which are controlling…Such a change must come either from our supreme court or from our legislature.

8. Post-Cook Cook Distinguished/Criticized Dillon 195 Ill.App.3d 599 (1990): Even if an extra degree of scrutiny is applied to the record in making such a determination, that application does not establish a basis for the rule proposed by claimant Dillon that the decision of the arbitrator must stand unless it is clearly against the manifest weight of the evidence. The rule claimant Dillon advances is a misstatement of the standard of review expressed above and properly employed by the Commission. Komatsu Dresser 235 Ill.App.3d 779 (1992): The respondent argues that because the Commission overturned the arbitrator's decision, it is clear that the Commission did not give due deference to the arbitrator's decision and, in particular, the Commission did not give due deference to the arbitrator's determination of credibility. In support of this argument, the respondent cites to this court's decision in Cook…This argument is without merit. In Dillon, this court repudiated…that a court of review is required to give extra scrutiny to a commission’s decision overturning the arbitrator’s determination without considering additional evidence and reiterated the standard of review…

9. S&H Floor Covering 373 Ill.App.3d 259, 870 N.E.2d 821, 312 Ill.Dec. 377 (2007) Thereafter, several courts disagreed with Cook's reasoning. See Dillon (finding “regardless of whether the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator's findings"); J& J Transmissions 243 Ill.App.3d (1993)(finding Cook is an inaccurate statement of the law and citing Dillon as controlling); Hartsfield 241 Ill.App.3d 1055 (1993)(holding the standard announced in Cook was not followed by this court); Boatman 256 Ill.App.3d 1070 (1993)(finding Cook has been rejected as an incorrect statement of the law). Although not appropriate in this case, we will consider giving credence to Cook, which provides for "an extra degree of scrutiny" to be applied to the record in determining whether there is sufficient support for the Commission's decision, especially when the Commission makes credibility determinations regardless of the arbitrator's findings.

10. Jerry Hosteny v. Arming Johnson 04WC059684 & 04WC059685 42 year old journeyman painter 1) feels “pop” in neck carrying ladder (DA 6-4-04) and then later 2) feels pain in neck (DA 8-2-04), but keeps working C5/6 discectomy and fusion Arbitrator Galicia (1-4-06) awards medical, TTD & 40% MAW (>$200K) “Petitioner’s account is substantiated by the histories in the medical records” & “ Petitioner credibly testified”

11. Hosteny v. Arming Johnson 07IWCC1108 & 07IWCC1109 (8-17-07) Lindsay & Ruth: Petitioner continued to work full duty on and after June 4, 2004 and did not seek any treatment until July 15, 2004…. In fact, other than a vague note of "painting since March", nothing in the contemporaneous records of Dr. Fiedler, the second doctor Petitioner sought treatment with, reflect any specific incident involving Petitioner carrying or lifting a ladder or feeling or hearing a pop in his neck. …Thus, it appears to the Commission that Petitioner did not claim his neck condition was work-related until after he was told he had a pinched nerve and had to be off work. Based on the above noted evidence, the Commission finds that Petitioner's testimony regarding the alleged June 4, 2004 accident was not credible, and his claim for any benefits related to this alleged accident are denied. The Commission finds that Petitioner failed to prove he sustained accidental injuries arising out of and in the course of his employment on August 2, 2004. As was the case with regard to the case involving his alleged June 4, 2004 accident, Petitioner's contemporaneous medical records do not disclose any evidence of the reporting by Petitioner of a work injury. Petitioner already had sought treatment for neck and left arm pain on July 15, 2004 with Dr. Gamble, and continued to have the same complaints through his last visit with Gamble on July 29, 2004. Other than a vague note of "painting since March", nothing in the contemporaneous records of Dr. Fiedler, the first doctor Petitioner sought treatment with after Dr. Gamble, reflect any specific incident involving Petitioner carrying or lifting a ladder or being injured while performing work activities. The first time a specific history is noted in the medical records regarding carrying a ladder was the September 28, 2004 report of Rana. DeMunno dissents: Arbitrator’s decision is well-reasoned and supported by the evidence in the record

12. Hosteny v. IWCC ___Ill.App.3d___, No. 1-08-3238WC (12-29-09) Claimant's suggestion that we abandon the deferential standard of review outlined above in favor of a stricter standard when the Commission's credibility findings are contrary to those of the arbitrator. In Cook, this court stated that "in cases where the Commission has rejected the arbitrator's factual findings without receiving any new evidence, …an extra degree of scrutiny to the record in determining whether there is sufficient support for the Commission's decision.” However, this holding has since been repudiated in almost every reported case that has cited it... Claimant directs us to our recent decision in S&H Floor Covering. However, S&H did not resurrect the extra-degree-of- scrutiny standard referenced in Cook. In S&H, the employer urged us to reconsider precedent that the Commission is not required to give deference to the arbitrator's findings regarding credibility. We responded that it "may very well be time to reconsider the Commission's prerogative to determine credibility regardless of the arbitrator's decision… We then reviewed Cook and referenced the cases departing from that decision before concluding that we would "consider giving credence" to Cook. However, we did not actually determine the viability of Cook’s extra-degree-of-scrutiny standard as it was unnecessary for us to do so. In any event, as the overwhelming weight of authority cited above suggests, Cook is a misstatement of the appropriate standard of review. Accordingly, we decline to apply to this case the extra-degree-of- scrutiny referenced in Cook. In this case, the arbitrator found that claimant "credibly testified" regarding the events surrounding the June 4, 2004, and August 2, 2004, accidents, and therefore awarded claimant benefits. A majority of the Commission, however, disagreed, concluding that claimant's testimony regarding the accidents lacked credibility … Claimant insists that the Commission's finding that he lacked credibility is contrary to law. According to claimant, the evidence upon which the Commission relied is insufficient to support a finding that his testimony was not credible. Claimant further asserts that his testimony was "uncontradicted." As such, he maintains that the Commission, as the trier of fact, was without discretion to discount his testimony unless it was impeached, contradicted by positive testimony or circumstances, or found to be inherently improbable... We disagree…We find that there was sufficient factual evidence in the record to support the Commission's decisions. Although an employee's testimony about an alleged accident might be sufficient, standing alone, to justify an award of benefits under the Act, it is not enough where consideration of all facts and circumstances demonstrate that the manifest weight of the evidence is against it.

13. Manuel Robledo v. R&D Thiel 04WC004443 33 year old laborer fell from ladder on 1-4-04 Right knee & back injuries Petitioner’s 19(b) & 8(a) Petition Arbitrator Kinnaman awards TTD & medical for “soft tissue low back and right knee injuries” Denies “prospective care in the form of epidural injections or a right knee arthroscopy”

14. Robledo v. R&D Thiel 07IWCC0555 (6-5-07) Pigott, DeMunno, Lindsay: After considering the entire record, the Commission modifies the Decision of the Arbitrator by finding that Petitioner established a causal connection between the accident and the lumbar spine disc abnormalities shown on MRI as well as the right knee osteochondral fracture and possible meniscal tear … As stated at the outset, the Arbitrator found that Petitioner established causation but only as to soft tissue back and right knee injuries. The Arbitrator questioned Dr. Freedberg's finding of an "obvious osteochondral fracture fragment" and stated that this was not supported by the doctor's own examination or the right knee MRI. The Commission views the evidence differently…Arbitrator elected to rely on Dr. Ghanayem's assessment of Petitioner's back condition as a "soft tissue injury" but the Commission notes that Respondent's original examiner, Dr. Mercier, conceded that the lumbar spine MRI showed a central disc protrusion and small annular tear. Based on the mechanism of Petitioner's injury (with Petitioner consistently describing falling at least eight feet and landing on his right side on a hard surface), the lumbar spine and right knee MRI reports, the opinions of Drs. Freedberg and Montella and the concessions made by Dr. Mercier, the Commission modifies the Decision of the Arbitrator and finds that Petitioner established causation as to the L4-5 disc protrusion and annular tear as well as the osteochondral patellar fracture and possible meniscal tear of the right knee. Consistent with this finding, and in reliance on the treatment recommendations …, the Commission further modifies the Decision of the Arbitrator by ordering Respondent to authorize and pay for the lumbar spine epidural injections and right knee diagnostic arthroscopy.

15. R&D Thiel v. IWCC ___Ill.App.3d___, No. 1-08-3666WC (2-9-10) According to R&D, the Commission "cherry picked" … and ignored significant portions …also asserts Dr. Montella’s records and opinions "strain the limits of credibility," pointing to his frequent changes in diagnoses despite the claimant's unchanging physical examinations, …concludes that the Commission's findings "defy logic" and are both "nonsensical and inconsistent” Ignoring the hyperbole, we address R&D's arguments along with its invitation for us to apply an "extra degree of scrutiny" in cases such as this where the Commission rejects the credibility findings of an arbitrator. In S&H, responding to "more than a few cases where the Commission has made credibility findings contrary to those of the arbitrator," this court opined that “it may very well be time to reconsider the Commission's prerogative to determine credibility regardless of the arbitrator's decision." However, recognizing, as we must, that the Commission exercises original jurisdiction and is not bound by an arbitrator's findings, we are, nevertheless, faced with the obligation of determining whether the Commission's credibility findings which are contrary to those of the arbitrator are against the manifest weight of the evidence. A resolution of the question can only rest upon the reasons given by the Commission for the variance. When the Commission gives no reasons for a contrary credibility determination, its decision may be lacking in findings which make meaningful judicial review possible; and, in such cases, the appropriate remedy is to remand the matter back to the Commission with directions to make the necessary findings. However, when, as in this case, the Commission gives its reasons for making credibility findings contrary to those made by the arbitrator, our inquiry on review is whether the findings are against the manifest weight of the evidence... In arriving at its decision, the Commission relied upon the consistency of the claimant's descriptions of the mechanism of his injury; the MRI's of the claimant's lumbar spine and right knee; the opinions of doctors; and the concessions made by Dr. Mercier in his deposition...As the trier of fact, exercising original jurisdiction, the Commission resolved the issues … Although in some respects contrary to the findings of the arbitrator, we cannot say based upon the record before us that the Commission's decision is contrary to the manifest weight of the evidence.