WCLA MCLE Case Law Update: Corn Belt & AMA’s July 12, :00 noon to 1 pm James R. Thompson Center Auditorium, Chicago, IL 1 hour general MCLE credit

Jamie Lind v. Corn Belt Energy 12WC Arbitrator’s Decision, 12WC039539, 11/04/2013 DA 08/30/2012 Chiropractic treatment for lumbar sprain/strain “Following consideration of the testimony and evidence presented, this Arbitrator finds the Petitioner experienced a loss of 3% loss of a man pursuant to Section 8(d)2.” Award: medical approximately $1500; no lost time?; 3% MAW ($10,688.25)

Jamie Lind v. Corn Belt Energy 14 IWCC 0651 Commission Decision, 14IWCC0651, 08/01/2014 Affirmed & adopted, 2-1 with dissent The Commission finds that a complete reading of this section of the Act indicates that a party is not required to provide an AMA rating report for the purpose of determining permanent disability. Instead, we find that the Act simply requires that if an AMA rating report has been provided, then the Commission must consider it, along with all the other criteria listed, when determining permanent disability.

Jamie Lind v. Corn Belt Energy 14 IWCC 0651 Commission Decision, 14IWCC0651, 08/01/2014 Affirmed & adopted, 2-1 with dissent In following the criteria laid out in Section 8.1b on review, the Commission notes that: (i) the reported level of impairment pursuant to subsection (a): An AMA report was not provided. (ii) the occupation of the injured employee: Petitioner worked as a lineman…was required to drive out to different locations in order to string electrical wires. Because Petitioner was required to work at different locations in order to do his job, he would find himself parking…in ditches on the side of the road… getting out of his truck was awkward… Petitioner had to twist his body in a certain way in order to exit his vehicle. (iii) the age of the employee at the time of the injury: Petitioner was 42 years old … (iv) the employee's future earning capacity: Petitioner testified that he now works as a serviceman and makes more than he did as a lineman. v) evidence of disability corroborated by the treating medical records: During his last visit with his chiropractor, Petitioner complained of ongoing right lower lumbar pain and paresthesia… escribed as mild, continuous burning…testified that he continues to have pain and discomfort in the low back…stiffens and becomes painful daily…testified that symptoms do not affect ability to work…a different position than the one he worked when the accident occurred.

Jamie Lind v. Corn Belt Energy 14 IWCC 0651 Commission Decision, 14IWCC0651, 08/01/2014 Affirmed & adopted, 2-1 with dissent Dissent: “I respectfully dissent from the decision of the majority. I disagree with the majority's interpretation of Section 8.1b of the Act. The lack of an AMA report regarding a level of impairment leaves the Trier of fact no evidence of level of impairment. To determine the level of disability in the present case, the weight and relevance of the remaining factors placed into evidence must be weighed. I find that petitioner has suffered a 1% loss of use of the person as a whole under Section 8(d)2 of the Act.”

Corn Belt v. IWCC 2016 IL App (3d) WC On appeal, the employer alternatively challenges the Commission's award of PPD benefits. It argues the Commission's award should be set aside due to noncompliance with section8.1b of the Act (820 ILCS 305/8.1b (West 2012)). Specifically, the employer contends claimant failed to introduce into evidence a PPD impairment report as described in section8.1b(a) of the Act and the Commission failed to adequately address the remaining factors for consideration identified in section 8.1b(b). The issues presented involve matters of statutory construction, which are subject to de novo review.

Corn Belt v. IWCC 2016 IL App (3d) WC The employer first argues section 8.1b of the Act "imposes a requirement that the claimant tender an AMA rating report." It maintains that because claimant presented no "AMA rating report" in the case at bar he failed to satisfy section 8.1b's requirements and was not entitled to a PPD award. We find the Commission's interpretation of section 8.1b is reasonable. First, subsection (a) of section 8.1b is addressed only to a "physician preparing a [PPD] impairment report.“ Second, subsection (b) of section 8.1b of the Act is addressed only to the Commission.820 ILCS 305/8.1b(b) (West 2012). It lists five factors upon which the Commission must base its determination of the level of PPD benefits…

Corn Belt v. IWCC 2016 IL App (3d) WC Clearly, the plain language of section 8.1b places no explicit requirement on either party. Nor does it make the submission of a PPD impairment report a prerequisite to an award of PPD benefits by the Commission. Rather, the section speaks in terms of what factors the Commission is required to consider when determining the appropriate level of PPD. We note this construction of the Act is consistent with our recent decision in Continental Tire Under the Act, a PPD impairment report may be submitted by either party. Further, when one is admitted into evidence, it must be considered by the Commission, along with other identified factors, in determining the claimant's level of PPD. None of the factors set forth in section 8.1b is to be the sole determinant of the claimant's disability. Further, nothing in the plain language of the Act precludes a PPD award when no PPD impairment report is submitted by either party. Consequently, we reject this contention by the employer.

Corn Belt v. IWCC 2016 IL App (3d) WC Finally, on appeal, the employer argues the Commission failed to comply with section 8.1b(b) by failing to explain the relevance and weight of the factors it used to determine claimant's level of disability. We agree. That section also provides that "[i]n determining the [claimant's] level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.“ IWCC did not explain the relevance or weight it attributed to each factor when determining claimant's level of disability. Thus, we find the Commission failed to comply with section8.1b(b) of the Act. We reverse the Commission's PPD award and remand for compliancewith the Act's requirements.

Corn Belt v. IWCC 2016 IL App (3d) WC Special Concurrence In Part & Dissent In Part Concur in parts that reverse PPD award and affirm causation My reading of section 8.1b of the Act leads me to conclude that, before the Commission can award PPD benefits, it must consider a PPD impairment report prepared in accordance with the requirements of section 8.1b(a). Stated otherwise, in the absence of its consideration of a PPD impairment report prepared in accordance with the requirements of section 8.1b(a),the Commission may not award PPD benefits. That is not to say that the level of impairment reported in a PPD impairment report is determinative of the issue. In this case, no PPD impairment report was presented to the Commission for its consideration. Consequently, I too believe that the portion of the circuit court's order affirming the Commission's PPD award must be reversed. However, unlike the majority, I would not remand the matter back to the Commission; I would vacate the PPD award.

Corn Belt v. IWCC 2016 IL App (3d) WC Causal Connection Employer argues the Commission erred in finding the existence of a casual connection because claimant failed to present any medical opinion evidence and, as a matter of law, a "chain of events" theory of causation "should not be available to a claimant who has an unwitnessed accident and a preexisting condition involving the same area of the body for which he now claims injury." We note the employer has failed to cite any authority to support itsposition. Additionally, this court has previously addressed and rejected a substantially similar argument. Specifically, in Price v. Industrial Comm'n.

Central Grocers v. IWCC 2016 IL App (3d) WC-U (Rule 23) Cites Corn Belt Plain language of section 8.1b places no explicit requirement on either party. Nor does it make the submission of a PPD impairment report a prerequisite to an award of PPD benefits by the Commission. In short, this court has concluded that while a PPD impairment report need not be submitted as a prerequisite to a PPD award, when a PPD impairment report is submitted by either party, it must be considered by the Commission in addition to the other factors set forth in section 8.1b Thus, in this case, the absence of a PPD impairment report did not preclude the Commission from awarding PPD benefits where it had before it evidence related to the four other factors to consider.

Central Grocers v. IWCC 2016 IL App (3d) WC-U (Rule 23) Special Concurrence The majority of this Division did not agree with my reasoning, and as a consequence, the majority holding in Corn Belt is now the interpretation of section 8.1 b and will remain so until reversed by the Supreme Court, overruled by a majority of this court in some later case, or the statute is amended by the legislature. Having noted my disagreement with the majority's interpretation of section 8.1 b in the separate opinion which I wrote in Corn Belt, I must now accept the holding ofthe majority on the issue and apply the law as pronounced. I concur.