WCLA MCLE WCLA MCLE Year End Wrap Up & Legislative Update Thursday December 2, :00 pm to 1:00 pm James R. Thompson Center Auditorium, Chicago, IL 1 Hour General MCLE Credit

Temporary Partial Disability Dyan McBride v. State of IL; 09IWCC0914 DA yo mental health technician sustains fractures to right arm resulting from fall Prior to injury “regularly worked voluntary overtime” 52 weeks prior to DA: $28, straight (AWW $550.56) + $ total OT ($183.62/week) RTW light duty doing paperwork, but no OT; RTW full duty Full capacity = Gross straight time actually earned ($ )+ average weekly OT ($183.62/week or $2570 total) = $11, TPD = 2/3($11, $ actual net earnings)= 2/3( $ ) = $ “Section 8(a) of the Act regarding TPD places none of the AWW limitations found in Section 10 of the Act regarding OT, nor does it limit the OT to the straight time rate” Credit based on weeks paid not % paid under old schedule

Temporary Partial Disability Copperweld Tubing, 402 Ill. App. 3d 630: 8(d)1 vacated & remanded to Commission with instruction to omit “evidence properly excluded by Section 10 of the Act” (voluntary overtime); Any impact on calculation of TPD? "Temporary partial disability benefits shall be equal to two- thirds of the difference between the average amount that the employee would be able to earn in the full performance of his or her duties in the occupation in which he or she was engaged at the time of the accident and the net amount which he or she is earning in the modified job provided to the employee by the employer.” Anybody have a case?

Interstate Scaffolding Steele v. Kelly Services, 06WC46872, 10 IWCC 949: NO TTD: “Further, Ms. Gardner testified that restricted duty is available at Kelly Services and has been from September 2006 through the present. Ms. Gardner testified that restricted duty is within the Kelly Services office and can be sedentary, no lifting, pushing, pulling, bending or stooping. An employee may sit or stand as needed. While the petitioner has various periods during which he has been placed under restrictions, the petitioner did not present to Kelly Services seeking employment within those restrictions. The Arbitrator takes into consideration the recent decision in Interstate Scaffolding wherein the court found that if employment is terminated for an unrelated cause and the claimant's condition has not yet stabilized, TTD is due and owing. However, the Arbitrator notes the respondent in this matter did not terminate the petitioner, the petitioner voluntarily left his employment. An employer cannot be held responsible when an employee refuses to appear for work and voluntarily abandons their job.” Affirmed by unanimous IWCC. See also Gill v. Meany, Inc., 09WC24525; 10 IWCC 0935: voluntary retirement cuts off TTD

Greene Welding (amputations) Alejandro Garcia v. River Docks, 08WC 42973, 10 IWCC 837 : “Further, where the claimant suffers clear, unquestionable statutory amputations with no existing dispute, the Respondent's delay in payment warrants an assessment of penalties under Section 19(k) and attorney's fees under Section 16 of the Workers' Compensation Act. See Kinnaird v. Greene Welding & Hardware, 08 IWCC 0812; Lester v. Industrial Commission, 256 Ill.App.3d 520.In the case at bar, the claimant suffered clear, indisputable traumatic amputations of the right 4th and 5th digits at the scene of the occurrence on July 31, 2008, when his severed little finger and ring finger were placed on ice, accompanying Petitioner to University of Chicago Hospitals same day, at which time surgeons performed an unsuccessful replantation of the right ring finger. On August 12, 2008, Dr. Ginard Henry, primary surgeon, performed a second surgical procedure which was a completion amputation of the failed right 4th digit replantation, along with other right hand surgery. At this point in time Respondent was clearly aware that the Petitioner had complete loss by traumatic amputation of his right 4th and 5th digits. However, Respondent unreasonably failed to immediately pay to Petitioner permanent partial disability compensation of 100% for each of those digits pursuant to Section 8(e). It was not until March 10, 2009 a check was issued to claimant, Alejandro Garcia, in the sum of $ 12, In the Kinnaird Decision where Section 19(k) penalties and attorney's fees under Section 16 were awarded, the Petitioner had returned to work 2 3/7 weeks following the traumatic amputations, but the Respondent did not pay for the statutory amputations before an additional month had passed, a total of 6 3/7 weeks having elapsed from the date of the traumatic amputations. In contrast, in the case at bar Respondent did not pay the statutory amputation benefits to Mr. Garcia, as required by Section 8(e) of the Act, until over approximately 30 weeks following August 12, 2008, at which time, the date upon which the Respondent had become clearly aware Petitioner had suffered traumatic amputations of the 4th and 5th digits of his right hand.Kinnaird v. Greene Welding & Hardware, 08 IWCC 0812;Lester v. Industrial Commission, 256 Ill.App.3d 520

Greene Welding (cont.) Garcia, cont.: “Further, AIG Claim Services, representing Respondent in the case at bar, addressed the Petitioner's attorney under fax dated March 9, 2009, contrary to black letter law, advised "As your client was deemed MMI, please prepare and forward your settlement demand to conclude this matter.“ This ignorance of the law was inexcusable and deprived Petitioner of his full Worker's Compensation benefits. That same argument contending statutory amputation benefits need not be paid until Petitioner was MMI was made by another Respondent in Lester contending that payment was not due regarding a statutory amputation until the claimant has reached maximum medical improvement. In rejecting this argument, the Illinois Appellate Court in Lester stated it was the intent of the Legislature that an employee who suffers amputation should be compensated immediately when no dispute exists as to the liability of the accident, that ruled recently in Kinnaird. See Lester. However, the Respondent, further ignored applicable Worker's Compensation Statutory Law, there being a provision in effect on the date of occurrence, July 31, 2008, a change effective since February 1, 2006, providing under 820 ILCS 305/8(b)4.1 Minimum Rate for Amputation of a Member... under Section 8(e) is increased to 50% of SAWW. The SAWW at the time of the accidental injury to the Petitioner, July 31, 2008, was $ , and 50% of that number produces a minimum PPD rate of $ , which PPD rate is higher than the PPD rate as extended against Petitioner's AWW of $ per week. Respondent clearly demonstrated unreasonable and vexatious behavior by carelessly making a late payment for statutory amputation benefits when the law was clear on this point. As such, applying the minimum rate for amputation pursuant to 820 ILCS 305/8(b) 4.1 establishing an appropriate PPD rate of $ produces a total for amputation benefits in the amount of $ 22, Respondent paid a total of $ 12, resulting in an underpayment of $ 9, ”Lester KinnairdLester820 ILCS 305/8(b)

Dismissal & Reinstatement TTC Illinois, 396 Ill. App. 3d 344 (2010): technical compliance with reinstatement rule not required; case reinstated after 21 months Alejandro Rodriguez v. Total Doors, 05WC037659, 10 IWCC 772; DA ; Filed ; Dismissed ; Petition to Reinstate filed (notice received ); NOM for ; Respondent filed Motion to Dismiss Petition to Reinstate ; Granted ; Affirmed “lack of due diligence”; Respondent’s request for fees denied

Intervening Injuries Menard v. IWCC, No WC, filed : Application filed for anxiety/mental illness caused by conflicts at work Petitioner fired : Petitioner falls while attending IME : files 2 nd App for fall

Menard (cont.) Arbitrator awards benefits for mental-mental case and for IME fall Commission reverses mental-mental case, but affirms IME fall finding Petitioner was under the direction of the employer even though she had been fired Circuit Court of Jackson County reverses: No employer employee relationship existed Appellate Court affirms, citing Skelgas: attendance at IME was not a condition of the employment

Other Issues Uninsured employers: Keating hearings pending before IWCC; rules to follow? Anybody have a case? Medical records subpoenas: Has the Holtkamp Trucking crisis blown over? Anybody have a Holtkamp experience?

Legislative Update Senate & House Special Committees on Workers’ Compensation Reform Changing standard of causation (no more aggravation of pre- existing condition) AMA guidelines for PPD Binding utilization review Wage-differentials (change in economic circumstances, prior credit, cap at retirement age) Alcohol & drugs Choice of medical Collectively bargained workers’ compensation