1. WCLA MCLE 12-17-15 2015 Year End Review & Update Thursday December 17, 2015 12:00 pm to 1:00 pm James R. Thompson Center, Chicago, IL 1 Hour General MCLE Credit

2. January 2015 Case Law Update RG Construction v. IWCC, 2014 IL App (1 st ) 132137WC Arbitrator :“I offered the opportunity to take this deposition, but I felt it only fair that the [employer] pay for it since I think under the Act the only thing that [claimant] needs to do is have a certified record or have these records via subpoena which I understand[he has]adhered to those requirements” Commission: "While we are in agreement with the decision of the Arbitrator on this issue, we further address [the employer's] constitutional argument. We find no violation [of the employer's] Fourteenth Amendment right to due process. The Arbitrator offered to continue the hearing if [the employer] elected to obtain the depositions of the Drs. Nam and Silver, but [the employer] declined. The treatment records were therefore properly admitted pursuant to Section 16 of the Act On judicial review, the circuit court of Cook County confirmed the Commission's decision. The employer appeals, arguing it was denied its due process right to cross-examine witnesses and present rebuttal evidence by the admission into evidence of claimant's medical records, which contained the opinions of two of claimant's treating physicians Appellate Court: “The employer does assert that ‘[i]t is undeniable that the doctors' records contain opinions beyond medical and surgical matters admissible pursuant to Section 16.’ However, it cites no authority for this statement other than section 16 itself. After reviewing the statutory language, we find no indication that the legislature intended to exclude a treating doctor's opinion, which was offered during the course of the doctor's treatment of the employee and memorialized in the doctor's treating records, from the phrase ‘medical and surgical matters.’”

3. February 2015 Legislative Update Time Line 3-11-15: House Labor Committee on Impact of 2011 WC Reforms 5-5-15: House Committee of the Whole 5-28-15: Senate Judiciary Committee: SB0994 Radogno; defeated 4-8 6-4-15: House passes HB1287 (Madigan) 6-30-15: Senate Committee of the Whole 8-4-15: Senate passes SB0162 (Raoul)

4. Legislative Update SB0994 (Radogno)/HB4246 (Durkin) Major contributing cause Traveling employee Workers’ compensation insurance(?) Man as a whole credit AMA Guides: “if such a report exists;” “not required…settlement contract” 30% reduction Medical Fee Schedule IWCC rules for electronic billing Eliminate 2 year Arbitrator rotation WC Ombudsman: “assist injured workers…” WEAR Commission: “more accessible to laypeople…prevent disputes…limit the opportunity for lengthy and expensive appeals” Computer system No appeal bond for State IWCC gets control of Fraud Unit

5. February 2015 Legislative Update HB1287 (Madigan) Passed House, 6-4-15, vote 63-39-4 Excessive premiums Safety & Return to Work programs Traveling Employee (Venture Newberg?) Arising out of and in the course of (Sisbro?) Contribution (?) action for repetitive trauma cases Self-insurance reporting What was voted down? No “Yes” votes (0-69-38): “Major contributing cause”

6. February 2015 Legislative Update Causation Proposal HB1287, HFA#1, Lost 0-69-38 (5-22-15) (f) The term "injury" as used in this Act means a medical condition or impairment that arises out of and in the course of the employment. An injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings. For an accidental injury to be compensable, the accident must be the major contributing cause of any resulting injuries. For the purpose of this Section, "major contributing cause" means the cause which is more than 50% responsible for the injury compared to all other combined for which treatment or benefits are sought. "Injury“ includes the aggravation of a pre-existing condition by an accident arising out of and in the course of employment, but only for so long as the aggravation of the pre-existing condition continues to be the major contributing cause of the injury.

7. February 2015 Legislative Update SB0162 (Raoul) Passed Senate 8-4-15, vote 36-19-1 Defines “arising out of and in the course of” (Sisbro?) Defines “traveling employee” (Venture Newberg?) Section 8.1b: Allows Sec.12 exam to be considered; no AMA necessary for award or settlement Electronic billing Repeals 2 year Arbitrator rotation Ombudsman: “attorney licensed to practice law in the State of Illinois…demonstrated experience” WEAR Commission: “Nothing in this Section shall be construed to allow or authorize the WEAR Commission to seek to or to diminish, restrict, limit, expand abrogate, alter or change in any way the current interpretation of any substantive or procedural provision of this Act by the Commission or any Court.” Computer System Fraud Unit to IWCC

8. March 2015 Another Case Law Update Sharwarko v. IWCC, 2015 IL App (1st) 131733WC According to our supreme court, the dispositive inquiry is whether the claimant has reached MMI. Interstate Scaffolding…There are, however, three recognized exceptions. TTD benefits may be suspended or terminated before an employee reaches MMI if he: (1) refuses to submit to medical, surgical, or hospital treatment essential to his recovery; (2) refuses to cooperate in good faith with rehabilitation efforts; or (3) refuses work falling within the physical restrictions prescribed by his doctor. The Commission obviously relied upon the opinions of Drs. Hoepfner, Vedner and Konowitz in concluding that the claimant "did not prove that he could not work." And based upon the opinions of Drs. Hoepfner, Vedner and Konowitz, we cannot say that the Commission's determination of this issue is against the manifest weight of the evidence as a contrary conclusion is not clearly apparent. We believe, as did the Commission, that when work for an injured employee falling within his medical restrictions is available, the employee's voluntary retirement is the equivalent to a refusal to work within those restrictions, authorizing the termination of TTD benefits before the employee has reached MMI. See City of Granite City.

9. April 2015 Recent AMA Cases Francisco Antunes v. Norwood Paper, 11WC040542, 15 IWCC 499 DA 9-9-11, 35 yo machine operator, Dr. Ho does left knee arthroscopy (medial meniscectomy etc.) Arbitrator “considers all factors set forth in Section 8.1b of the Act” (i) Respondent offered Dr. Karlsson rating “4% loss of the left leg which is equivalent to 2% loss of the whole person. Under cross-examination, Dr. Karlsson acknowledged …” (ii) through (v) The Arbitrator notes that Petitioner was 35 years old as of the first accident, at which point he had worked intermittently for Respondents for nine years. The Arbitrator considers that Petitioner has spent much of his adult life performing tasks of a physical nature. Petitioner credibly testified that his knee and ankle complaints affect his ability to engage in certain physical activities. Arbitrator awards 20% loss of use of left leg

10. April 2015 Recent AMA Cases Francisco Antunes v. Norwood Paper, 11WC040542, 15 IWCC 499 Commission modifies down to 12.5% loss of left leg Although Petitioner did not offer an impairment rating, the Commission is not obligated to directly follow the impairment rating of Dr. Karlsson. We note that Dr. Karlsson's impairment rating was specific to the medial meniscus tear and did not account for the chondral changes in the patellofemoral joint. Dr. Karlsson testified that some of these changes were related to the accident by way of an aggravation to a preexisting condition. The nature of Petitioner's employment as a temporary laborer is understood to be variable but physically demanding. Petitioner was thirty-five years old on September 9, 2011 and is expected to endure working for many years. No evidence was offered related to any impact on Petitioner's future earnings capacity and Petitioner is not under any physical restrictions related to the September 9, 2011 accident. We note that Dr. Ho and Dr. Karlsson expected Petitioner's left knee to remain somewhat symptomatic and Petitioner complains of swelling, instability, and pain in the left knee. Although Dr. Ho released Petitioner from active care at his last examination on February 4, 2013, he did not discount Petitioner's subjective complaints and administered an injection into Petitioner's left knee.

11. April 2015 Recent AMA Cases Kyle Stanczak v. Town of Normal, 12WC6285, 15 IWCC 459 DA 10-3-11, 24 yo trash collector, arthroscopic repair of SLAP lesion right shoulder Commission affirms Arbitrator’s award 10% loss whole person (19.76% right arm equivalent) (i) In this case, neither party submitted an AMA impairment rating. (ii) Petitioner testified that since April 1, 2013, when he was released to return to work, he has worked several heavy jobs, including a driver of a grapple truck: a landscape job in Carlock, Illinois where he mowed grass and moved 40 - 50 lb. blocks about 20 feet; that he has worked for Alpine Waste, a commercial dumpster company in Commerce City, Colorado and Erosion Control of Colorado, where he was required to shovel and carry heavy bales of hay. The Arbitrator finds that although Petitioner has permanent injuries, he has been engaged in physical employment since April 1, 2013, which has required regular use of his right shoulder (iii) Petitioner was only 24 years old at the time of his injuries. The Arbitrator considers Petitioner to be a younger individual and concludes that Petitioner will likely have to live and work for a longer period of time than an older individual with the same injuries.

12. April 2015 Recent AMA Cases Kyle Stanczak v. Town of Normal, 12WC6285, 15 IWCC 459 (iv) No evidence that Petitioner's future earning capacity has diminished as a result of this injury. (v) Petitioner sustained a repetitive trauma injury to his right shoulder…Dr. Dustman, ultimately performed an arthroscopy with arthroscopy repair of SLAP lesion…The diagnosis was SLAP lesion, impingement with AC joint changes. Post operatively Dr. Dustman described it as Petitioner having tolerable pain on December 6, 2012. Abduction and external rotation was slightly limited. There was expected weakness..Petitioner still had pain…discomfort…4 out of 5 strength …little bit of feeling of instability on occasion. Dr. Dustman felt Petitioner needed to work on a scapular strengthening program...Physical therapy notes show soreness due to working…fatigue quickly. Petitioner credibly testified that he continues to experience discomfort in his shoulder. The determination of PPD is not simply a calculation, but an evaluation of all five factors as stated in the Act. In making this evaluation of PPD, consideration is not given to any single enumerated factor as the sole determinant. Therefore, after applying Section 8.1b of the Act, 820 ILCS 305/8.1b and considering the relevance and weight of all these factors, the Arbitrator finds Petitioner is permanently disabled to the extent of 10% under Section 8(d)2 of the Act.820 ILCS 305/8.1b

13. May 2015 Recent Commission Decisions Susan Routt v. Wal-Mart Stores, 12WC026412; 14IWCC1051 IWCC reverses the Arbitrator's grant of Respondent's Motion to Dismiss and reinstates the Application for Adjustment of Claim The issue in this case is whether a dismissal for want of prosecution (DWP) precludes the filing of a new Application for Adjustment of Claim within the statute of limitations We first address Respondent's argument that the Commission no longer has jurisdiction to hear this Review because Petitioner failed to file an authenticated transcript by the return date on review. Petitioner filed a Motion to Extend Time to File Transcript on November 22, 2013 claiming that her attorney did not receive the transcript until November 21, 2013 even though the return date on review was November 15th. On December 9, 2013, Commissioner DeVriendt granted Petitioner's motion. We find that the Commission still has jurisdiction to hear this Review. Regarding Petitioner's second Application, we find that it is not barred by the dismissal of the first Application. The second Application was filed timely within the statute of limitations and we follow the Commission decision of Johnson v. IDOT. 6 IWCC 991 (11/14/06) and the Supreme Court case of Chicago Rawhide Mfg. Co. v. IC. 35 III. 2d 595 (1966). CC Summons filed by Respondent (Cook 15L50011); 7-9-15 Order Court’s Motion Cause Dismissed

14. June 2015 Causation: Past, Present & Future Thomas Hegland v. Fed Ex, 10WC013266, 15IWCC0103 IWCC Affirms & Adopts NO Causation While the Petitioner's current treating physician, Dr. Citow, has issued an opinion indicating that he believes there is a causal connection between the Petitioner's original accident and his current recommendation for a cervical spine fusion, the Arbitrator notes that the doctor's opinion is predicated upon an inaccurate history that the Petitioner's complaints of neck pain and tingling began at the time of the original accident, and continued unabated. It is clear from the records of Dr. Collins that the tingling in the fingers would wax and wane. The Arbitrator relies upon the opinion of Dr. Bernstein, who found that there was no causal connection between the original alleged injury and the Petitioner's subsequent cervical spine condition, based upon the change in the EMG findings, the fact that the Petitioner appeared to recover from his shoulder surgery and was able to complete an FCE indicating that he could perform unrestricted activity, and the gap in time between the original accident and the Petitioner's subsequent complaints of tingling and later neck pain. Considering the Petitioner's age and the change in the diagnostic findings, the Arbitrator agrees with Dr. Bernstein that the condition may be the result of a chronic degenerative change versus an acute injury from January 6, 2010. Most significantly, the Arbitrator finds that based upon the Petitioner's testimony and the treating medical records, the complaints involving the neck and fingertips did not occur until at least almost one month after the alleged accident. Based upon the lack of contemporaneous complaints involving the neck or fingertips at the time of the accident, a finding mat the Petitioner's alleged accident either caused injury to the Petitioner's cervical spine or aggravated a pre-existing condition to the cervical spine is precluded. Further, the Arbitrator finds it unlikely that the Petitioner sustained acute injuries to his neck, low back and shoulder on January 6, 2010 based upon the Petitioner's vague specifics regarding the original accident.

15. July 2015 Case Law Update Bell v. IWCC, 2015 IL App (4 th ) 140028WC By their plain terms, these provisions merely establish to whom benefits will be paid if the employee dies with a spouse or dependents before he has been fully compensated for his work-related injury. They do not limit the ability of a deceased employee’s estate to collect accrued, unpaid benefits that were due and owing to the employee while he was alive. Neither provision addresses what happens when an employee dies without leaving a surviving spouse or any surviving dependents, as in this case. Accordingly, neither provision should be read as barring an employee’s estate to collect accrued benefits under such circumstances. We reach the same conclusion here. In this case, Ms. Nash’s estate seeks only those PPD benefits that had accrued and were payable, due, and owing to Ms. Nash prior to her death. It does not seek future installment payments that would have accrued and become payable to Ms. Nash on some future date had she survived. Republic Steel and Nationwide Bank provide that such benefits may be collected by Ms. Nash’s estate. Sections 8(e)19 and 8(h) say nothing about what happens when an injured employee dies without leaving any eligible dependents. Thus, these sections of the Act do not defeat the employee’s estate’s right to collect benefits that accrued before the claimant’s death, as confirmed by Republic Steel.

16. August 2015 Return To Work Programs AKA Temporary Transitional Employment (TTE) Richard Lee v. Fluid Management, 11WC048656, final: “There is no statutory authority in the State of Illinois for Temporary Transitional Employment and the Act does not refer to Temporary Transitional Employment.” Anthony Berndt v. Hibar, 12WC010057, 14IWCC0152: “(E)ntity called ReEmployability sent a letter …referencing Petitioner’s work restrictions and indicating a transitional full-time job as thrift store sales assistant…extension of Petitioner’s employment with Respondent.” Petitioner presents and advises thrift store of restrictions. “(A)cted in good faith” TTD awarded for time after offer. Robert Przanowski v. Des Plaines, 11WC035540, 14IWCC1122: “temporary” is not “bona fide” offer of employment. Eric Alvarez v. Foodliner, 13WC020686, 15IWCC0443 : “temporary transitional employment…YMCA…Toys for Kids…senior center” Petitioner followed up in each case. Testimony of TTE vendor found to be “less than credible.” “The Illinois Workers’ Compensation Act no mention of TTE.” TTD & penalties awarded. Dan Perkins v. Turner Industries, 09WC044791, 15IWCC0468: The position with AllFacilities (CATALYST) was wholly subsidized by the workers' compensation insurance company and was clearly not found in a competitive job market. This is not competitive or real employment.

17. September 2015 YLS Section Vocational Rehabilitation/Maintenance/Odd Lot PTD National Tea 73 Ill.Dec. 575 (IL 1983) – Commission award of vocational rehabilitation was affirmed. Petitioner 42 years of age; Testing revealed low-average intelligence; 20 years as a meat cutter; Treating physician indicated petitioner could not and should not return to prior job 1) Loss of earning capacity: Petitioner sustained a lumbar injury, had a laminectomy, and his restrictions precluded him from returning to prior job; He attempted to RTW with Respondent but could not continue; Petitioner found employment with AMOCO, but the job ended. The Court did not give great weight to the argument that this was a general layoff as no other employees were laid off and noted that it was “at least as probable that claimant’s age, training and medical condition accounted for his unsuccessful attempts to secure employment; ” He made “numerous attempts” to secure employment and there was discussion of some employers asking for medical condition in applications for employment. 2) Evidence that rehabilitation will increase his earning capacity: Petitioner presented vocational expert opinion that “he was unaware of any job claimant could obtain, without training, in which he would be compensated at a rate similar to his pre-injury earnings;” Respondent “failed to produce any evidence that vocational rehabilitation is unnecessary.” 3) Appropriateness of vocational rehabilitation: The Court in National Tea Co. discussed the “necessity” of vocational rehabilitation and “appropriateness of rehabilitation programs” as a related question. The Court identified that the legislature has given little guidance on the issue and notes Rule 7110.10 as a step in the right direction. The Court also indicates that there should be a cost-benefit analysis in considering the reasonableness of the rehabilitation award in the relative costs and benefits, work-life expectancy, and ability and motivation to undertake the program.

18. October 2015 Another Case Law Update Adcock v. IWCC, 2015 IL App (2d) 130884WC 12 IWCC 1221 (Commission denies) The evidence establishes that the Petitioner did sustain a left knee injury. The Petitioner testified that he was sitting on his swivel chair and turning when he felt a pop in his knee. The Petitioner testified specifically that at the time of his injury, he was not pushing his chair, rather he was turning his body. Furthermore, Dr. Rochell testified that there was nothing specific at Petitioner's workplace that increased the risk of a left knee injury as it could have happened anywhere. The act of turning, even in a chair, is an activity of everyday life and does not constitute a compensable injury under the Illinois Workers' Compensation Act. Bailey, 12 I.W.C.C. 0399; Ikerman, 06 I.W.C.C. 1133; Wright, 03 I.I.C. 0465; Moreland, 01 I.I.C. 0702. The State of Illinois does not recognize the positional risk doctrine. Brady 143 Ill.2d 542 (1991). The injury does not arise out of the employment, however, if it results from a hazard to which the employee would have been equally exposed apart from the employment. Caterpillar 129 Ill.2d 52 (1989). The act of turning, whether standing or in a chair, is not a hazard greater than that faced by the general public. Nabisco Brands 266 Ill.App.3d 1103 (1994).Bailey, 12 I.W.C.C. 0399;Ikerman, 06 I.W.C.C. 1133; Wright, 03 I.I.C. 0465;Moreland, 01 I.I.C. 0702.Brady 143 Ill.2d 542 (1991). Caterpillar 129 Ill.2d 52Nabisco Brands 266 Ill.App.3d 1103 (1994). The Commission finds no evidence that the injury was caused by an increased risk connected with the Petitioner's work duties, or a defect in the chair or floor. The Petitioner's act of turning in his swivel chair did not expose him to a risk greater than that to which the general public is exposed, and it was not a risk distinctive to his employment.

19. October 2015 Another Case Law Update Adcock v. IWCC, 2015 IL App (2d) 130884WC Whether an injury arose out of and in the course of a claimants employment is a question of fact to be resolved by the Commission, and its determination will not be disturbed on review unless it is against the manifest weight of the evidence. Neutral risk of everyday living faced by all members of the general public. Petitioner’s injury is compensable only if the claimant was exposed to this (neutral) risk to a greater degree than the general public. Petitioner made that showing here. The claimant’s work duties required him to weld approximately 70 locks during one workday. Special concurrence maintains that, if an employee is injured while performing a common bodily movement that is required by his job duties, then the injury arose out of his employment, even if the physical action that caused the injury is something that virtually everyone does on a daily basis (such as walking or turning while sitting in a chair). For the special concurrence, all that matters is that the physical action is required by the employee’s job duties; if so, then the risk posed by the activity is assumed to be connected to the claimant’s employment, and it would be improper to engage in a neutral-risk analysis.

20. November 2015 Folta & Continental Tire (& Sunrise Assisted Living) Folta: Exclusive remedy bars civil suit against employer Continental Tire: 0% AMA rating and 5% loss of hand not contrary to law or manifest weight of the evidence Sunrise Assisted Living: Trial court did not err in denying Petitioner judgment under Section 19(g) and interest under Section 2-130 of the Code