figHting tHe Strategic battle to win tHe war workers ... · 15567848_1.DOCX . A-2 Kevin J. Luther - Partner Kevin has spent his entire legal career at Heyl Royster, beginning in 1984

© 2010 Heyl, Royster, Voelker & Allen

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A Century of ServiCeHeyl, RoysteR, VoelkeR & Allen • 1910-2010

heyl, Royster, Voelker & Allen

25th annual claims Handling Seminars

figHting tHe Strategic battle to win tHe warworkers’ compensationThursday, May 20, 2010Bloomington, Illinois

May 20, 2010 IN RE: 25th Annual Claims Handling Seminars Dear Seminar Attendee: On behalf of the firm, I want to welcome you to our 25th Annual Claims Handling Seminars. Our attorneys have endeavored to prepare materials and presentations which will benefit you in your daily work, whether you are a claims professional, risk manager, corporate counsel or employer. Please be sure to fill out the database update and evaluation form which is with your materials. Your feedback regarding this seminar and your suggestions for future topics are very important to us. We also ask that you be sure to provide your e-mail address since we are now distributing publications such as our Quarterly Review of Recent Decisions and Below the Red Line, our workers’ compensation newsletter, via e-mail. In order to receive Continuing Education verification, be sure to sign the attendance sheet at the registration table both before the session begins and immediately following the conclusion of our sessions this afternoon. Attendance verification certificates will be e-mailed only to those who sign the attendance sheet both at the beginning and end of the seminar. This is a memorable year for Heyl Royster. In addition to presenting our seminars today, we are celebrating 100 years of service to our clients. In 1910, when Clarence Heyl began our law firm in Peoria, his goal was to provide his clients with excellent legal representation. Over the past 100 years, we have grown to more than 100 lawyers and have five offices located strategically throughout the state of Illinois. While much has changed, our commitment to excellence has remained constant. As we begin our second hundred years, we would like to thank you for the privilege of representing you and the opportunity to advocate on your behalf. Once again, we appreciate your taking the time to join us today, and thank you for your confidence in selecting us as your attorneys. HEYL, ROYSTER, VOELKER & ALLEN By: Gary D. Nelson Managing Partner 309.676.0400 [email protected]

Workers’ Compensation agenda

Fighting the Strategic Battle to Win the War thurSday, May 20, 20101:00 - 4:30 p.M.BlooMington, illinoiS

1:00 p.m. Welcome and introductions– Kevin luther, rockford

1:05 p.m. the ongoing msa Battle: strategies to Close Files With msa potential – Brad peterson, urbana

1:20 p.m. moving the stalled File: strategies for Bringing the Case to Closure When the petitioner’s attorney and the system present delay – gary Borah, Springfield

1:30 p.m. developing Facts through the internet and social networking sites: electronic informal investigation and discovery – Stacie linder, peoria

1:50 p.m. Update From the illinois Workers’ Compensation Commission– Bruce Bonds, urbana

2:00 p.m. a View From the Commissioner: thoughts and Comments From the Bench– commissioner nancy lindsay

2:30 p.m. Break

2:45 p.m. ttd Fact scenarios: Interstate Scaffolding Case and How to suspend ttd – Kevin luther, rockford

3:05 p.m. When a simple Case turns Complex: Back strain to Wage differential to permanent total disability to death from Unrelated Cause – Bruce Bonds, urbana

3:25 p.m. repetitive trauma defense strategies: arm Yourself for Battle – toney tomaso, urbana

3:45 p.m. preparing for Battle to Win the War: strategies to Leverage a good result – craig young, peoria

4:05 p.m. Case Law Update – dan Simmons, Springfield

4:25 p.m. Closing remarks – Kevin luther, rockford

4:30 p.m. Cocktail reception

RockfordChicago

Peoria

Urbana

Springfield

EdwardsvilleSt. Louis

ILLINOIS

Workers’ Compensation ContaCt attorneys

Heyl, royster, Voelker & allen

peoria(309) 676-0400 Bradford B. [email protected]

springfield(217) 522-8822gary l. [email protected]

edWardsVille(618) 656-4646Bruce l. Bonds (Lawrenceville and Mt. Vernon Calls)

[email protected]

Craig s. young (Collinsville Call)

[email protected]

toney J. tomaso(Belleville Call)

[email protected]

state of missouri(618) 656-4646James [email protected]

roCkford(815) 963-4454kevin J. [email protected]

urBana(217) 344-0060 Bruce l. [email protected]

peoriaBloomingtonGalesburgPeoriaRock Island

springfieldCarlinvilleClintonDecaturQuincySpringfieldWinchester

urbanaDanvilleJolietKankakeeMattoonUrbanaWhittington/Herrin

illinois arBitration Hearing sitesrockfordChicagoDe KalbGenevaOttawaRock FallsRockfordWaukeganWheatonWoodstock

edwardsvilleBellevilleCollinsvilleLawrencevilleMt. Vernon

www.heylroyster.com

The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted.

WORKER’S COMPENSATION FIGHTING THE STRATEGIC BATTLE TO WIN THE WAR Welcome and Introductions .................................................................................................................................. A-1

The Ongoing MSA Battle: Strategies to Close Files With MSA Potential ............................................... B-1

Moving the Stalled File: Strategies for Bringing the Case to Closure When the Petitioner’s Attorney and the System Present Delay ............................................................... C-1

Developing Facts Through the Internet and Social Networking Sites: Electronic Informal Investigation and Discovery ............................................................................................ D-1

Update From the Illinois Workers’ Compensation Commission ............................................................... E-1

A View From the Commissioner: Thoughts and Comments From the Bench ...................................... F-1

TTD Fact Scenarios: Interstate Scaffolding Case and How to Suspend TTD ......................................... G-1

When a Simple Case Turns Complex: Back Strain to Wage Differential to Permanent Total Disability to Death from Unrelated Cause ..................................................................... H-1

Repetitive Trauma Defense Strategies: Arm Yourself for Battle ................................................................. I-1

Preparing for Battle to Win the War: Strategies to Leverage a Good Result ........................................ J-1

Case Law Update ......................................................................................................................................................... K-1


A-1

WELCOME AND INTRODUCTIONS

Presented and Prepared by: Kevin J. Luther

[email protected] Rockford, Illinois • 815.963.4454

Heyl, Royster, Voelker & Allen PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE

© 2010 Heyl, Royster, Voelker & Allen 15567848_1.DOCX

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Kevin J. Luther - Partner

Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has been in the Rockford office since it opened in 1985. Kevin is currently in charge of the firm's workers' compensation practice group. Kevin concentrates his practice in the areas of workers' compensation, employment law, and employer liability. He supervises the workers' compensation, employment law, and employer liability practice groups in the Rockford office. He has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims. He has also tried numerous liability cases to jury verdict. Kevin has co-authored a book with Bruce Bonds of the firm's Urbana office entitled Illinois Workers' Compensation Law, 2009-2010 Edition, which was recently published by West.* The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. He also is the contributing editor of the Workers' Compensation Report for the Illinois Defense Counsel Quarterly. Kevin is a frequent speaker to industry and legal professional groups. Kevin is a member of the Winnebago County Bar Association in its workers' compensation and trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel (Board of Directors). Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp.,

Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim.

Richard Urbanski v. Deichmueller Construction Co., Defined jurisdictional issue in workers' compensation review.

Publications Illinois Workers’ Compensation Law, 2009-2010

ed. (Vol. 27, Illinois Practice Series), published by West (2009)*

"Economic Disability and Earning Capacity: A Historical Analysis for Wage Differential Claims," Illinois Defense Counsel Quarterly (2006)

"The Normal Daily Activity Exception to Workers' Compensation Claims," Illinois Defense Counsel Quarterly (2004)

"The Age Discrimination in Employment Act: A Seventh Circuit Perspective," Illinois Defense Counsel Quarterly (1998)

"The Impact of Federal Legislation on the Employer/Employee Relationship in Illinois," Illinois Defense Counsel Quarterly (1996)

"An Overview of Repetitive Trauma Claims," Illinois Bar Journal (1992)

Professional Recognition Martindale-Hubbell AV rated Selected as a Leading Lawyer in Illinois. Only

five percent of lawyers in the state are named as Leading Lawyers.

Named to the 2009 Illinois Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.

Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel

(Board of Directors) Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and

Central Districts of Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor, Washington University School of

Law, 1984 Bachelor of Arts-Economics and Mathematics

(Summa Cum Laude), Blackburn University, 1981

* For more information, visit the West website at: http://west.thomson.com/productdetail/159286/40843543/productdetail.aspx

Learn more about our speakers at www.heylroyster.com

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THE ONGOING MSA BATTLE: STRATEGIES TO CLOSE FILES WITH MSA POTENTIAL

Presented and Prepared by: Bradford J. Peterson

[email protected] Urbana, Illinois • 217.344.0060



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I. INTRODUCTION ............................................................................................................................................ B-3 II. PROPERLY EVALUATING CASES FOR AN MSA ISSUE .................................................................... B-3 III. SETTLEMENT STRATEGIES ......................................................................................................................... B-4

A. Future Medical Treatment Not Reasonably Anticipated ................................................ B-4 B. Settlement Where Multiple Claims Are Involved .............................................................. B-6 C. Zero Allocation ............................................................................................................................... B-6 D. Settlement Below MSA Thresholds ........................................................................................ B-7 E. Evaluate Prescription Expenses ................................................................................................ B-7 F. Await Denial of Social Security Appeal ................................................................................. B-7 G. MSA Second Opinion? ................................................................................................................ B-8 H. Stipulated Arbitration .................................................................................................................. B-8

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I. INTRODUCTION

Compliance with the Medicare Secondary Payer Act, 42 U.S.C. § 1395(y)(b)(2), has evolved substantially since the publication of the Patel Memo in July 2001. In the succeeding nine years, the Center for Medicare and Medicaid Services has produced many Memoranda clarifying the compliance standards under the Act. Many of the CMS Memoranda that have been published are intended to provide guidance with regard to the CMS approval process and to further limit the number of Set-Aside proposals submitted to CMS by virtue of the settlement review thresholds. In addition, however, several provisions of the Memoranda were also intended to close loopholes and tighten the noose of the Medicare Secondary Payer Act around workers’ compensation claims. Just as the Medicare approval process has evolved over time, so have strategies developed to address MSA issues in the handling of workers’ compensation claims. Some strategies can successfully avoid the necessity of creating an MSA while others are used to avoid the need to submit a Medicare Set-Aside proposal to CMS for approval. Set forth herein are strategies for effectively closing workers’ compensation claims involving Medicare Set-Aside issues. In addition, this article and presentation will address the various means employed in preparing settlement contract language to address the myriad Medicare Set-Aside issues that arise in particular cases. Also, we look at recent developments and their potential effect on the handling of workers’ compensation claims with MSA issues. II. PROPERLY EVALUATING CASES FOR AN MSA ISSUE

The first issue to address when you have a potential Medicare Set-Aside issue is to identify whether the facts trigger the Medicare Secondary Payer Act thereby requiring a creation of a Medicare Set-Aside account. The first determination is made by addressing whether the petitioner is eligible for Medicare. Eligibility can be based on three different criteria:

1. 65 or older; 2. On Social Security Disability for 24 months or longer; 3. Suffering from a qualifying end stage renal disorder.

Such claimants are commonly referred to as class 1 beneficiaries for purposes of CMS review thresholds.

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Secondly, the claim must be evaluated for whether the petitioner has a reasonable expectation of Medicare enrollment within 30 months of the settlement. Factors to be analyzed with regard to the reasonable expectation standard are:

1. The individual has applied for Social Security Disability benefits; 2. The individual has been denied Social Security Disability benefits, but

anticipates appealing that decision; 3. The individual is in the process of appealing and/or refiling for Social Security

Disability benefits; 4. The individual is 62 years and 6 months of age, i.e., may be eligible for

Medicare based on his or her age within 30 months or; 5. The individual has an end stage renal disease condition but does not yet

qualify for Medicare based thereon. Beneficiaries who meet the reasonable expectation standard are commonly referred to as class 2 beneficiaries for purposes of the CMS review thresholds. Application of the above criteria to the facts of your case will establish whether you need to further consider an MSA as a part of closure of your claim. Another factor that will be addressed below is whether the petitioner, in fact, will have future medical expense, thereby requiring an MSA. III. SETTLEMENT STRATEGIES

Several strategies have evolved over the last nine years with regard to the settlement of claims that present issues with regard to Medicare Set-Aside allocations. Different strategies can carry different degrees of risk as to whether they could potentially be viewed as an attempt to intentionally shift liability for medical expenses to Medicare in violation of 42 C.F.R. § 411.24(c)(2) (2006). Therefore, each strategy has to be carefully assessed with regard to its potential application to a pending claim and whether the strategy can be successfully implemented without violating 42 C.F.R. § 411.24(c)(2)(2006).

A. Future Medical Treatment Not Reasonably Anticipated

Perhaps one of the most frustrating situations that arises in handling workers’ compensation claims with MSA issues are those cases in which the medical condition is such that an average person would not expect the petitioner to undertake future medical treatment. In such situations, vendors who prepare MSA proposals oftentimes create proposals that, in fact, contain a substantial amount of future treatment. Such claims include claims of back strain, carpal tunnel syndrome, concussion, epicondylitis and fractures. The need for a Medicare Set-Aside arrangement is premised upon a fundamental proposition that future medical treatment is reasonably anticipated. Therefore, in cases where a substantial question exists as to whether future medical treatment is, in fact, necessary, litigants should consider acquiring a statement

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from the treating physician that future treatment is not reasonably anticipated for the petitioner. Such a statement would need to be acquired from a treating physician as opposed to an examining physician. Where such a statement is acquired, the parties must then decide whether a zero allocation is going to be prepared based thereon and submitted to Medicare for approval, or whether the claim is going to be settled and concluded without further consideration of the MSA issue. The safest route would be to use the physician’s statement as a means to acquire a zero MSA and submit that MSA to CMS for approval (if the total settlement meets the appropriate threshold amount). The parties may consider settling cases with a physician’s statement and withhold submission to CMS even if the amounts exceed the thresholds, although such a procedure does involve a slight risk. In its April 22, 2003 policy Memoranda, CMS set forth the following question and answers:

20) If the settling parties of a WC case contend that a WC settlement is not intended to compensate an injured individual for future medical expenses, does CMS still require that a Medicare set-aside arrangement be established?

ANSWER: It is unnecessary for the individual to establish a set-aside arrangement for Medicare if all of the following are true:

a. The facts of the case demonstrate that the injured individual is only being

compensated for past medical expenses, (i.e., for services furnished prior to the settlement);

b. There is no evidence that the individual is attempting to maximize the other aspects of the settlement (e.g., the lost wages and disability portions of the settlement) to Medicare’s detriment; and

c. The individual’s treating physicians conclude (in writing) that to a reasonable degree of medical certainty the individual will no longer require any Medicare-covered treatments related to the WC injury.

Memo, April 22, 2003 to all Regional Administrators from CMS Director, Thomas L. Grissom with answers to frequently answered questions. http://www.cms.gov/WorkersCompAgencyServices/Downloads/42203Memo.pdf The aforementioned question and answer suggests that Medicare may require more than simply a physician statement in order to avoid a Medicare Set-Aside allocation. Such an interpretation by CMS of the Medicare Secondary Payer Act, however, is fundamentally unsound. It is the author’s position that medical documentation that future medical treatment is not reasonably anticipated alone should be sufficient evidence that the parties are not attempting to improperly shift liability to Medicare in violation of the Medicare Secondary Payer Act. CMS would have a very difficult time proving that the parties, in fact, “intended” to shift responsibility to Medicare. The reliance upon such a physician statement is itself inherently reasonable. One must keep in mind that the standard is whether future medical treatment is “reasonably anticipated.” The

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standard is not whether the petitioner “might” need future medical treatment or whether the petitioner “could” need future medical treatment. This standard should also be used in the communication with the treating physician when soliciting such an opinion. The question should be presented as to whether future medical treatment is “reasonably anticipated” for the petitioner.

B. Settlement Where Multiple Claims Are Involved

Oftentimes we face petitioners who have filed multiple claims for different accidents and resulting injuries. Many such instances may involve some claims that were clearly compensable while others are highly disputed. Furthermore, some of the claims may involve a likelihood of future medical treatment whereas others may not. When presented with such situations, consideration should be given to settling the claims on the case(s) where future medical treatment is not reasonably anticipated. This can be successful where these are the clearly compensable claims. Where the claims involving future medical expense are highly disputed, attempts can be made to negotiate dismissal of those claims. Such claims would not trigger the need for a Medicare Set-Aside account if no permanency or future medical is paid on those claims. Once again, care must be taken to avoid the appearance that the parties are improperly attempting to shift responsibility to Medicare. As such, this strategy is generally limited to where disputed claims are being dismissed without any previous payment of medical or TTD benefits. In addition, the compensable claim that is accepted and settled on contracts cannot appear to be for a materially inflated amount that might suggest that the parties are improperly co-mingling settlement of both claims on a single contract.

C. Zero Allocation

In claims where a substantial dispute exists as to compensability, one may consider a zero allocation Set-Aside. This strategy may prove successful in those cases where substantial evidence exists in support of a defense of non-compensability. It is most likely to be successful where evidence contradicts a causal connection between the alleged injury and the workplace. In such instances, care should be taken to insure that the vendor preparing the Medicare Set-Aside allocation is acutely aware of the disputed nature of the claim and the basis of that dispute. They also need to be acutely aware that the claim is being submitted for a “zero allocation” proposal. When thresholds are met, the zero allocation will be submitted to Medicare for their approval. It will be incumbent upon the vendor to highlight for CMS the disputed nature of the claim as well as the evidence in support of non-compensability or lack of causal connection. It is unlikely that CMS will approve a zero allocation where the facts present a “close case” as to compensability or the settlement sum is sizable. This strategy will be most successful when employed in those cases in which there is a clear case for non-compensability or causal connection and the settlement amount objectively appears to be a substantial compromise of the full value of the claim.

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D. Settlement Below MSA Thresholds

When the need for a Medicare Set-Aside account has been determined, it must then be evaluated as to whether the Medicare Set-Aside will need to be approved by CMS. Settlement thresholds are established at $25,000 for claims involving current beneficiaries and $250,000 for petitioners who meet the standard for future beneficiaries. If the settlement value of the claim (including the settlement amount) is near one of these thresholds, an effort should be undertaken to get the petitioner to accept an amount below the applicable threshold. The benefit to the petitioner is that he will not have to wait receipt of settlement funds pending CMS approval for the Set-Aside. Of course, the benefit for the respondent is a lower overall settlement amount.

E. Evaluate Prescription Expenses

CMS has recently changed the methodology in which future prescription expenses are calculated. The result has been a very substantial increase in the funding that CMS requires for future prescription expenses. Prior to this change, prescription drug expenses constituted on average 26 percent of the total Medicare Set-Aside allocation. It was anticipated that this percentage would increase to 40 percent or greater based on the new CMS standard. Instances have arisen within the last six months where MSA proposals have been rejected and the CMS recommended amount has been catastrophically higher. Instances include occasions where the CMS recommended amount was five times the amount of the MSA proposal. One of the key driving forces to these increases is the prescription drug expense. Insurance adjusters and defense attorneys need to scrutinize Medicare Set-Aside proposals with regard to future prescription expenses. Future prescription expenses are commonly included for medications that the petitioner has not taken in many months or many years. In such instances efforts should be made to require the vendor to redraft the MSA proposal. The MSA vendor should be provided information, including medical documentation illustrating why the future prescription drug expense is not reasonably anticipated. In addition, treating medical personnel can be enlisted, if necessary, to specifically address what medications may, in fact, be required in the future.

F. Await Denial of Social Security Appeal

As previously indicated, one of the factors that CMS uses to identify class 2 beneficiaries is if the petitioner has applied for and been denied Social Security Disability but has appealed that denial. In instances where your petitioner has a previously denied Social Security claim on appeal, you may wish to consider awaiting the outcome of that appeal before proceeding with settlement negotiations. In a large percentage of cases, such denials will be affirmed on appeal. If the appeal is denied by the Social Security Administration, the petitioner would no longer qualify for class 2 beneficiary status and a Medicare Set-Aside account would not be necessary. This, of course, presumes that the petitioner does not otherwise qualify as a class 1 or class 2 beneficiary. Generally, petitioner’s attorneys are willing to delay settlement if it is a reasonable

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possibility that an MSA issue can be eliminated by simply awaiting the Social Security appeal decision. Clearly, if the appeal is denied and you are able to avoid an MSA, there can be substantial savings to the insurer with regard to the cost of that claim.

G. MSA Second Opinion?

Vendors who prepare Medicare Set-Aside accounts are essentially consultants to the insurance carrier and defense counsel. The preparation of the MSA proposal itself does not trigger contact with the petitioner or the petitioner’s attorney. As such, the proposal that is initially generated should be deemed privileged as between the vendor, the insurer and defense counsel. In instances where the vendor produces an unacceptably high MSA amount, consideration should be given to securing a “second MSA opinion.” The results of the first MSA need not be disclosed.

H. Stipulated Arbitration

Stipulated arbitration can be employed as a strategy to avoid a Medicare Set-Aside in limited circumstances. Generally, Medicare acknowledges that they will honor the administrative law decisions of state workers’ compensation arbitrators providing there was not an intent to shift liability to Medicare for future medical expenses. If you have a case in which the petitioner is claiming multiple injuries/conditions but one injury/condition that would require future medical treatment is disputed, you may wish to consider a stipulated arbitration. Essentially, the petitioner’s attorney agrees that the overwhelming evidence illustrates that a particular injury/condition is unrelated to the accident. Unfortunately, the petitioner may have reported to physicians by history that they believe the claim is related or there may be some other nominal evidence suggesting that compensation has certainly been sought for this particular claim. That raises concerns with regard to whether Medicare may ultimately honor a settlement contract if an MSA is not done. In such a situation, the parties can proceed with a stipulated arbitration and the arbitrator would enter an award based on a finding that that particular condition is not related. It is also, of course, incumbent that the arbitrator’s decision would further reflect that the petitioner is not being compensated for that particular injury/condition. The award would be written solely on conditions (or claims) that do not involve future medical expense. The arbitration award will further specify that any future medical care on the compensable claim is not causally related.

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Bradford J. Peterson - Partner

Brad has spent his entire career with Heyl Royster beginning in 1987 in the Urbana office. He became a partner with the firm in 1997. Brad concentrates his practice in the defense of workers' compensation, construction litigation, auto liability, premises liability and insurance coverage issues. In recent years, Brad has become a leader in the field on issues of Medicare Set-Aside trusts and workers' compensation claims. He has written and spoken frequently on the issue. He was one of the first attorneys in the State of Illinois to publish an article regarding the application of the Medicare Secondary Payer Act to workers' compensation claims "Medicare, Workers' Compensation and Set-Aside Trusts," Southern Illinois University Law Journal (2002). Brad is a member of the Champaign County, Illinois State, and American Bar Associations. He currently serves on the Illinois State Bar Association Assembly and has also served several previous terms. He has also been a member of the ISBA Bench and Bar Section Council and served as its chairman 2000-2001. Currently, he serves as a member of the ISBA Workers' Compensation Council and is past editor of the Workers' Compensation Section Newsletter. Significant Cases West v. Kirkham, 207 Ill. App. 3d 954 (4th Dist.

1991) Recognized that trial court may find plaintiff contributorily negligent as a matter of law.

Propst v. Weir, 937 F. 2d 338 (7th Cir. 1991) Application of qualified immunity for university officials in First Amendment Retaliatory Transfer claim.

Publications "Medicare, Workers' Compensation and Set-

Aside Trusts," Southern Illinois University Law Journal (2002)

"Survey of Illinois Law-Workers' Compensation," Southern Illinois University Law Journal (1991)

Public Speaking “Medicare Set-Asides and the SCHIP Extension

Act” Illinois State Bar Association Advanced Workers' Compensation Seminar 2008

“Medicare Set-Aside Issues and Update” 22nd Annual HRVA Claims Handling Seminar 2007

“Workers’ Compensation and Medicare Set-Aside Proposals” Illinois State Bar Association Hot Topics and Workers’ Compensation 2005

“Aggressive and Successful Workers’ Compensation Defense Strategies for Today’s Industrial Commission” 19th Annual HRVA Claims Handling Seminar 2004

Professional Associations Champaign County Bar Association Illinois State Bar Association American Bar Association Illinois Association of Defense Trial Counsel

Court Admissions State Courts of Illinois United States District Court, Central District of

Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court

Education Juris Doctor, Southern Illinois University, 1987 Bachelor of Science (with honors), Illinois State

University, 1984


C-1

MOVING THE STALLED FILE: STRATEGIES FOR BRINGING THE CASE TO CLOSURE WHEN THE PETITIONER’S ATTORNEY AND THE SYSTEM PRESENT DELAY

Presented and Prepared by: Gary L. Borah

[email protected] Springfield, Illinois • 217.522.8822



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MOVING THE STALLED FILE: STRATEGIES FOR BRINGING

THE CASE TO CLOSURE WHEN THE PETITIONER’S ATTORNEY AND THE SYSTEM PRESENT DELAY

I. THE ILLINOIS WORKERS’ COMPENSATION SYSTEM ..................................................................... C-3 II. RED LINE CLAIMS ........................................................................................................................................ C-4 III. RESPONDENT’S REQUEST FOR HEARING .......................................................................................... C-5 IV. TERMINATION OF TEMPORARY TOTAL DISABILITY ...................................................................... C-6 V. RESPONDENT’S 19(B) PETITION ............................................................................................................ C-6 VI. SCHEDULING AN IME ................................................................................................................................ C-7 VII. VOCATIONAL REHABILITATION ............................................................................................................ C-7 VIII. WHEN ALL ELSE FAILS, MAKE A SETTLEMENT OFFER ................................................................... C-7 IX. SOME CLAIMS IMPROVE WITH AGE .................................................................................................... C-8 X. SUMMARY ..................................................................................................................................................... C-8

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MOVING THE STALLED FILE: STRATEGIES FOR BRINGING THE CASE TO CLOSURE WHEN THE PETITIONER’S ATTORNEY

AND THE SYSTEM PRESENT DELAY One of the many frustrations employers and injured workers alike have with the Illinois workers’ compensation process is the delay often involved in resolving claims. Many times the delay is justified due to prolonged necessary medical treatment and therapy, delays occasioned by the busy schedules of physicians who need to be deposed, or the time frequently required for a meaningful and productive vocational rehabilitation plan and job search. However, in some instances, the delay is due to the procrastination and inactivity of the attorneys. Petitioners’ attorneys frequently choose to concentrate on their good, high dollar claims to the neglect of lesser valued claims with questionable compensability and/or minimal injuries. In this presentation, we will review the options available to employers to accelerate the resolution of claims. I. THE ILLINOIS WORKERS’ COMPENSATION SYSTEM

While it is easy to fault the Illinois workers’ compensation system for delays in concluding claims, the truth is that the system rarely causes delay in resolution of claims. The Illinois Workers’ Compensation Commission has arbitrators geographically dispersed around the state who hear cases on a monthly basis. In downstate Illinois, it is rare that an arbitrator is not available to hear a claim when both parties and their attorneys are present and ready for trial. The arbitrators hear a number of claims each month and occasionally an arbitrator’s schedule will be so crowded that not all claims can be reached for trial, but that is the exception rather than the rule. Additionally, if a claim is not reached for trial one month, the arbitrators usually will give that claim priority on the next docket cycle, or agree to hear a case off docket the following month. Thus, at the trial level, delays are rarely occasioned by the arbitrator’s unavailability to hear a trial. However, there has been a delay in resolution of claims on appeal. Historically, it requires approximately one year from the time of appeal to the Illinois Workers’ Compensation Commission’s review decision. With the addition of a third review panel, that backlog of appealed cases seems to have been significantly reduced, and in recent months, claims on appeal are being heard and decided more quickly. Once a case is appealed, there is little either party can do to accelerate the appeal process. The Illinois Workers’ Compensation Commission has a schedule of deadlines which apply to each case and are generally strictly enforced. There is little either party can do to accelerate the appeal process. Waiver of oral argument will accelerate the decision date somewhat.

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II. RED LINE CLAIMS

As is well known, the Illinois Workers’ Compensation Commission will dismiss any claim which has been on file for more than three years without a specific request by one party or the other to continue the matter. Such cases of three years of age or older are referred to as being “above the red line.” Such continuance requests must be accompanied by an explanation of why the matter has not been resolved and what further activity is required before the case can be taken to trial. Illinois Workers’ Compensation Commission Rule 7020.60(b) (2)(c) states:

C) Cases on file 3 or more years. i) In all cases which have been on file at the Industrial Commission for

three years or more, the parties or their attorneys must be present at each status call on which the case appears. The case will be set for trial unless a written request has been made to continue the case for good cause. Such request shall be made part of the case file. The written request must be received by the Arbitrator at least fifteen days in advance of the status call date and contain proof of service showing that the request for a continuance was served on all other parties to the case and/or their attorneys. Any objection to a continuance in such case must be received by the Arbitrator at least seven days prior to the status call date and contain a similar proof of service. The Arbitrator shall rule on such requests for continuances or objections thereto at the status call. The parties must appear at the status call even if there is no objection to the continuance.

ii) Failure of the Petitioner or the Petitioner's attorney to request or answer a request for a continuance in accordance with subsection (b)(2)(C)(i) above and to appear at the monthly status call on which the case appears shall result in the case being dismissed for want of prosecution, except upon a showing of good cause.

As noted above, petitioners’ attorneys often procrastinate on claims with complex issues, questionable compensability, and/or minor injuries. Those typically are the cases which rise to above the red line. Once a claim has become an above the red line case, respondents can object to further continuances. Arbitrators are increasingly placing pressure on petitioners’ attorneys to take such claims to trial. If there is no good reason for a continued delay (petitioner still treating, true inability to obtain necessary deposition, etc.), most arbitrators will pressure the petitioners’ attorneys to conclude their claim at the next docket cycle. To increase the possibility of a red line claim being forced to resolution, respondents should fully prepare the claim for trial, serve notice of trial on petitioner’s attorney, and appear at the docket call ready for trial and objecting to further continuance. Although the first time the case appears above the red line, the arbitrator is unlikely to dismiss the case without allowing petitioner’s attorney another opportunity to finalize trial preparation, most arbitrators will impose an order for a future trial date certain, on which date the case must be tried. In advance of the docket, respondents should serve on the arbitrator and petitioner’s attorney a letter stating there will be an objection to any effort to continue the red line claim.

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Once a claim has been dismissed for want of prosecution, Rule 7020.90 of the Rules Governing Practice before the Illinois Workers’ Compensation Commission provides that petitioner has 60 days from receipt of the dismissal order to file a petition for reinstatement. The petition must be in writing and must set forth the reason the cause was dismissed and the grounds relied upon for reinstatement. If a petition is filed within the required 60 days, the Commission typically will reinstate the claim (e.g., Alexander v. Carmax, 03 IL.W.C. 04415, 04 IL.W.C. 03221, 08 I.W.C.C. 1025, 2008 WL 4635628 (Sept. 8, 2008)). If the petition for reinstatement is not filed within the 60-day period, the Commission generally will not reinstate the claim (e.g., Golemis v. Aramark, 04 IL.W.C. 57456, 09 I.W.C.C. 1222, 2009 WL 5067511 (Nov. 16, 2009)). III. RESPONDENT’S REQUEST FOR HEARING

Prior to a claim reaching red line status, a respondent can set a case for trial. Historically, arbitrators have been reluctant to force petitioners to trial until petitioners’ attorneys feel ready to try the claim. However, the rules do allow a respondent to schedule a claim for trial under appropriate circumstances. Illinois Workers’ Compensation Commission Rule 7030.20(c)(2) provides:

2) A Respondent may file a motion requesting a date certain for trial if Respondent claims that: A) Respondent has not received in the prior 6 months any bills or other evidence that Petitioner is under medical care or undergoing physical or vocational rehabilitation related to the alleged accidental injuries, and B) Respondent has evidence establishing that Petitioner has not been entitled for the prior 6 months to temporary total disability benefits as a result of the alleged accidental injuries, and such benefits have not been paid for that period.

Thus, a respondent can only schedule a case for trial if the petitioner has had no medical treatment, nor entitlement to TTD in the previous six months. While the arbitrators rarely force petitioners to trial, serving of a trial notice under section 7030.20 does cause most arbitrators to begin to put pressure on petitioners’ attorneys to bring their cases to trial. It sometimes requires two to three trial notices before an order for trial date certain will be entered. Serving of a trial notice is an effective step to begin the claim resolution process, even if it does not succeed the first time in achieving a trial. Even if a trial is not accomplished, an order for trial date certain should be requested from the arbitrator. Once a trial date certain order has been entered, the arbitrators will pressure petitioners to present their claim for trial.

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IV. TERMINATION OF TEMPORARY TOTAL DISABILITY

It is well established by Illinois case law that once a petitioner reaches maximum medical improvement temporary total disability can be terminated (Nascote Industries v. Industrial Comm’n, 353 Ill. App. 3d 1067, 820 N.E.2d 570, 289 Ill. Dec. 794 (5th Dist. 2004)). Once benefits have been terminated, petitioners and their attorneys are generally eager to resolve claims. Thus, adjusters, case managers, and respondents’ attorneys should all seek to move the claim toward maximum medical improvement (MMI) at the earliest possible date. Regular inquiries should be made of the physicians as to when MMI is anticipated. It is generally preferable to have an MMI opinion from a treating physician rather than just an examiner, although an examiner’s opinion alone is generally an adequate basis to terminate TTD. While the Commission may disagree with such termination, penalties are usually avoided if there is a reasonable basis for the examiner’s opinion that maximum medical improvement has been reached. Respondents should not terminate TTD just to harass or “starve” out a petitioner, but when appropriate, termination of TTD is an effective tool to cause petitioners and their attorneys to take steps toward resolving their claims. V. RESPONDENT’S 19(B) PETITION

If it is felt that TTD cannot safely be terminated, the respondent can petition for a 19(b) hearing. The 2006 revisions of the Illinois Workers’ Compensation Act provide circumstances under which an employer can schedule a 19(b) hearing. The relevant portions of the section read: Provided the employer continues to pay compensation pursuant to paragraph (b)

of Section 8, the employer may at any time petition for an expedited hearing on the issue of whether or not the employee is entitled to receive medical, surgical, or hospital services or other services or compensation as provided in paragraph (a) of Section 8, or compensation as provided in paragraph (b) of Section 8. When an employer has petitioned for an expedited hearing, the employer shall continue to pay compensation as provided in paragraph (b) of Section 8 unless the arbitrator renders a decision that the employee is not entitled to the benefits that are the subject of the expedited hearing or unless the employee’s treating physician has released the employee to return to work at his or her regular job with the employer or the employee actually returns to work at any other job.

820 ILCS 305 §19(b) The obvious disadvantage of utilizing this section of the Act is, of course, that compensation payments must continue to the petitioner while the claim is brought to trial and while the matter is under consideration by the arbitrator. However, where an unusual legal question is presented, an employer can avail itself of this section of the Act to obtain a compensability ruling before incurring prolonged temporary total disability or medical payments.

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VI. SCHEDULING AN IME

Scheduling an independent medical examination (IME) can sometimes cause stalled cases to go off dead center. This is particularly effective when petitioner and their attorneys are concerned about future medical treatment and are delaying conclusion of the case with indecision about the need for future medical treatment. Obtaining an IME opinion concerning the need for future medical treatment can be a helpful tool to prod such cases along, especially if the IME is obtained with a credible physician respected by both parties. VII. VOCATIONAL REHABILITATION

Vocational rehabilitation can sometimes be an effective tool to force petitioners to deal with their claims. A significant percentage of workers’ compensation petitioners do not like the vocational rehabilitation process. In particular, they dislike the process of a regular job search. Implementation of a vocational rehabilitation plan and pressure to conduct a meaningful job search can be effective in forcing older claims to resolution. More and more attorneys and petitioners seem willing to accept up front payment for vocational rehabilitation, settle their workers’ compensation claim, and conduct a job search effort on their own after settlement. While the assistance of a qualified vocational counselor can be invaluable to the petitioner sincerely seeking a job, a post settlement job search is more effective. Petitioners no longer have an incentive (continuance of maintenance payments) to drag out or delay the job search. The petitioner’s job search is more effective because the petitioner truly needs a job and therefore makes a more committed effort to finding alternative employment. Vocational rehabilitation should be undertaken with the goal of placing a petitioner in new employment. Vocational rehabilitation should not be undertaken with the sole purpose of finding a basis to terminate benefits, although it often has that benefit. Difficult petitioners with questionable claims rarely make a valid effort at a job search. Once it has been firmly established that the petitioner is not being cooperative with the job search efforts, maintenance benefits can be terminated. However, it is important that a solid basis of non-cooperation is established. Benefits should not be terminated until petitioner has been given every opportunity to cooperate, has failed the job search effort and unquestionably shown a lack of cooperation. The Commission generally upholds a suspension of maintenance benefits under such circumstances. (Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749, 574 N.E.2d 99, 158 Ill. Dec. 305 (1st Dist. 1991)). Again, once benefits have been suspended or terminated, petitioners and their attorneys become more active in seeking to resolve their claims either by settlement or trial. VIII. WHEN ALL ELSE FAILS, MAKE A SETTLEMENT OFFER

There is a long established thought in the insurance defense industry that a settlement offer should not be made until a settlement demand has been received. Sometimes, one simply cannot get a petitioner to submit a settlement demand. It can be helpful to simply make an

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unsolicited settlement offer. It is particularly helpful when the cause of the delay is inactivity by the attorney rather than by an obstinate petitioner. A settlement offer compels the petitioner’s attorney to speak with the petitioner and inform him of the amount of the offer. Such an offer is most effective if a deadline for response can be imposed. The petitioner and his attorney must feel there is something to be lost if the response is not promptly made. For instance, if the IME physician’s deposition has not yet been taken, the settlement offer can be made with the understanding that a response must be received by the deadline or the deposition will be scheduled. The petitioner’s attorney should be informed that once the physician’s deposition scheduling fee has been incurred, the offer will be withdrawn. While a meaningful demand may not be received in response, making an offer can sometimes be an impetus to start the negotiation process. IX. SOME CLAIMS IMPROVE WITH AGE

Usually, the more promptly a claim is resolved the better for both petitioner and respondent. It is sometimes said the only good file is a closed file. In most instances, that is true. It is to the benefit of both parties to resolve the claim as promptly as possible. However, there are some difficult claims that do, for whatever reason, get better with age. A petitioner who is not motivated to work, who has had benefits suspended for a valid reason, whose attorney may have concern for proceeding with the case, may ultimately return to work in some capacity rather than continuing without payment. Sometimes the facts do change in favor of the respondent. It is difficult to predict when this will happen. And, the criteria for such claims would be virtually impossible to outline. Nevertheless, respondents should not lose sight of the fact that sometimes cases do get better with age. Thus, despite pressure to resolve claims and close files, some consideration should be given to simply letting claims linger until the facts change in favor of the employer. Additionally, it seems arbitrators sometimes subliminally reason that the older a claim is before going to trial, the more questionable the compensability must be. A claim more than three years old must have some compensability issue or some question regarding the legitimacy of the claimed injury or petitioners’ attorneys would seemingly bring the case to trial more quickly. Thus, it would seem arbitrators may be somewhat more reluctant to accept petitioners’ claims of disability on older files than they are on claims of more recent injury. While such factor is totally intangible, it is a valid consideration for adjusters and respondents’ attorneys as older claims linger on the docket. X. SUMMARY

It will always be difficult to force claims to resolution before a petitioner chooses to resolve the claim. Nevertheless, the conclusion date of the claim can be accelerated somewhat if the respondent makes a persistent effort toward claims resolution. There is no hard and fast answer

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that applies to every case. The best technique to resolve the claim is case specific and can vary significantly from one claim to another. While there are many claims where none of the above suggestions for claim resolution will be effective, most claims can be resolved more promptly if a concerted effort for resolution is made by the claims handler and the respondent’s attorney.

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Gary L. Borah - Partner

Gary has spent his entire legal career with Heyl Royster beginning in 1975 in the Springfield office. Born in Mt. Erie, Illinois, Gary became a partner with the firm in 1981. He has handled a wide range of cases, including workers' compensation, medical malpractice, products liability, automobile, construction accidents, and coverage issues. Gary concentrates his practice in the area of workers' compensation and employment law. He has made presentations for the Law Ed Seminars of the Illinois State Bar Association, and has frequently spoken to management and insurance audiences on workers' compensation and risk management. He regularly counsels self-insureds on their unique problems, offering experience and insight for implementing successful programs. He currently supervises the workers' compensation practice group in Heyl Royster's Springfield office. Gary has been designated one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Record, a designation awarded to only the top five percent of lawyers in the state. Public Speaking “Repetitive Trauma - The Defenses are in the

Details” Heyl Royster 2008

“Dollars and Cents: Top Ten Things Everyone Should Know Regarding Workers” SafeWorks Work Injury Conference 2006

“Investigating and Resolving the Death Case” Heyl Royster 2007

“Cumulative Trauma Disorders and Job Site Analysis: Minimizing Risk in the Workplace and the Courts” Midwest Rehabilitation 2008

“Hot Topics in Illinois Workers” Midwest Rehabilitation 2006

“Penalties, Penalties, and More Penalties: The Changes to Section 19 and Strategies for Minimizing Penalty Exposure” Heyl Royster 2006

“The Illinois Workers' Compensation Reform Act 2005” CorVel Corporation 2005

“Top Ten Things Every Employer Should Know About Workers' Compensation” Illinois Land Improvement Contractors Association 2006

“Trade-Offs in Claims Management” Hortica Insurance 2006

“Top Ten Things Every Employer Should Know About Workers' Compensation” Gateway Rehabilitation Workers' Compensation Spring Conference 2007

Professional Recognition Martindale-Hubbell AV Rated. Selected as a Leading Lawyer in Illinois. Only


Professional Associations Workers' Compensation Lawyers' Association American Bar Association Illinois State Bar Association (past member

Workers' Compensation Section Council) Sangamon County Bar Association


Illinois United States Court of Appeals, Seventh Circuit

Education Juris Doctor, University of Toledo, 1975 Bachelor of Science-Agricultural Science,

University of Illinois, 1971


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DEVELOPING FACTS THROUGH THE INTERNET AND SOCIAL NETWORKING SITES: ELECTRONIC INFORMAL INVESTIGATION AND DISCOVERY

Presented and Prepared by: Stacie K. Linder

[email protected] Peoria, Illinois • 309.676.0400



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I. WHAT IS INFORMAL DISCOVERY? ....................................................................................................... D-3

A. Search Engines .............................................................................................................................. D-3 B. Social Networking Sites ............................................................................................................. D-4

1. Facebook .......................................................................................................................... D-4 2. MySpace ........................................................................................................................... D-5 3. Twitter ................................................................................................................................ D-6

II. CONDUCTING SEARCHES ........................................................................................................................ D-7

A. Web Searches ................................................................................................................................ D-7 B. Searching Social Networking Sites ........................................................................................ D-7

1. A Note on Privacy Settings ........................................................................................ D-7 2. Locating the Petitioner’s Profile .............................................................................. D-8 3. Obtaining Evidence from the Profile ..................................................................... D-9

III. HOW SEARCH ENGINES AND SOCIAL NETWORKING SITES

HAVE AFFECTED WORKERS’ COMPENSATION CASES ...............................................................D-10 IV. A QUICK POINTER ON ETHICAL CONSIDERATIONS ...................................................................D-12 V. CONCLUSION ............................................................................................................................................D-12

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In recent years, the internet and use of social networking sites has changed the way we communicate and share information about ourselves. Social networking sites have given individuals the ability to learn more about their “friends” without directly communicating. People frequently post information about the more mundane aspects of their lives that they would probably not share with someone during a verbal conversation. This presents employers, claims adjusters and attorneys with an opportunity to informally investigate workers’ compensation petitioners and witnesses. I. WHAT IS INFORMAL DISCOVERY?

Informal discovery is factual research obtained without document requests, interrogatories, subpoenas, or depositions. Informal discovery can be conducted at any time and it is free. There are thousands of electronic sources that can provide information on petitioners and witnesses. However, the most common and most useful sources are search engines and social networking sites. Search engines are an excellent place to start.

A. Search Engines

The most common search engines are Google, Yahoo and Bing. Google is the leading online search engine and expends a large amount of money for research and development. Its main goal is to transform the way the world finds and stores information. Yahoo was one of the earliest search engines. However, in recent years Yahoo has began to push more commercial content on users. Thus, Yahoo users will likely have to wade through various links that are irrelevant to the search performed. One of the newest search engines to hit the net is Bing from Microsoft. Bing touts itself as “the decision machine.” According to their commercials, its focus is providing you with more refined search results with only the information you’re seeking. So although Google is the search engine most likely to produce relevant results, don’t forget to take a couple minutes to give other search engines a try because you will receive different results in a different order. If you don’t have enough time to run searches on multiple engines, consider trying a search engine that compiles results from the main search engines into one listing. Two examples of these types of search engines are www.beaucoup.com and www.dogpile.com. Using these sites may result in information overload, but you will have all of the results collected without having to go to numerous different engines.

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B. Social Networking Sites

Social network is a term referring to the relationships that tie us to other people. It is the social structure that maps out the relationships between individuals. Although we technically all belong to one giant social network, we also belong to smaller, tighter social networks that are defined by our families, friends, where we live, work, went to school, hobbies, interests, etc. As we meet people, we typically engage in basic background discussions, such as: “What do you do?,” “Where do you work?,” “Where did you go to school?” Through these questions and others, we frequently come across similar interests and/or realize that we have relationships with the same individuals. The goal of social networking sites is to turn this verbal dialogue into a visual framework available for all of your connections (and sometimes your connection’s connections) to see. Thus, by connecting to someone online, people can see relationship connections visually and can identify topics they have in common without having to speak to each other. Social networking sites also allow us to share our lives with “friends” without having to speak or write to each other. Social networking sites allow you to post messages on your site for others to read. The sites also allow you to post photos, videos, and music. People use social networking sites to join groups related to their interests and hobbies. As individuals begin to communicate in this fashion there is a tendency to over-share with others that you would not normally provide with this information. For example, a few months ago, a very casual acquaintance began posting details about her pregnancy in excruciating detail. This information was not sent directly to me, but rather it was posted on her page for anyone connected to her to read. This seems to be the result of our demand for instant and constant communication. Use of social networking sites is an important tool when handling workers’ compensation cases because it is a potential fount of useful information that would otherwise be undiscoverable. In order to identify useful evidence, it is important to have an understanding of main social networking sites and the information users frequently provide on their profiles.

1. Facebook

Facebook was launched on February 4, 2004 by Harvard student Mark Zuckerberg and his college roommates. Initially, the service was limited to Harvard students, but it quickly expanded to other Boston colleges, Ivy League schools and then other colleges. In September of 2005, Facebook expanded to allow high school students, age 13 and over, to join. Facebook finally became open to the general public on September 26, 2006. There is no fee to join this service. Facebook is currently the largest social networking site, boasting over 350 million users and more than 200 million “active users.” The average person has 120 “friends” with whom they share information. Perhaps the most interesting statistic about Facebook is that the fastest growing demographic of users is currently individuals 35 years old and older.

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Facebook profiles have areas of standard profile information, but users are not forced to provide anything more than a name and a valid email address to join. Although users may adjust privacy settings, the default setting is to allow all users to search for you and view all content posted on your profile. Currently, a Facebook Profile may contain the following information:

Profile picture Wallan area where the user and user’s friends can post short messages

Status messages Wall posts from friends Activity tracking

Videos Notes Friends

Friends in Common Info Tab

Basic Information Contact Information Likes and Interests Education and Work

Photos Photo Albums Tagged Photos Profile Pictures

Various Third Party Applications This type of information may be beneficial for claims adjusters and employers defending workers’ compensation claims. For example, a petitioner may regularly post status messages on his Wall identifying his daily activities. This information may identify whether he is working outside his restrictions, or it may identify an accident history that conflicts with the history he provides to his medical providers or during arbitration. Additionally, the petitioner may post information about his scheduled activities for the day which may assist investigators conducting surveillance.

2. MySpace

MySpace is a social networking site which began in August 2003. The design of the site was based upon another social networking site called Friendster. MySpace continued to gain market share and ultimately became the most popular social networking site in June 2006. Its time at the top was cut short in April 2008 when Facebook became the leading social networking site. MySpace is available to anyone 13 years old and older. Privacy for children between the ages of 13 and 15 is automatically set “private.” Users who are 16 and older have the ability to alter their

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privacy settings to allow for “public” access. Similar to Facebook, when a user’s privacy settings are “private,” access is limited to the user’s direct friends. Other than minors, the default privacy setting is for public access. As of August 2006, there were more than a million MySpace accounts. These numbers have dwindled as Facebook and Twitter have gained popularity. However, some individuals still prefer MySpace over other social networking sites. Although Facebook and MySpace offer similar content for profiles, MySpace allows users more control over the content of their page. MySpace allows users to post music and music videos on their profiles. Additionally, users can enter HTML code to alter the backgrounds of their individual profiles. The content of MySpace Profiles is as follows:

Moodsusers can select emoticons to depict their current mood Background Information

About Me Who I’d Like to Meet Interests Relationship Status Zodiac Sign

Blogs Music and Videoscan be linked in from other users and MySpace Musician profiles Commentssimilar to the Facebook Wall Bulletinsposts made for all of the user’s contacts to see Groups MySpace Instant Message Polls

3. Twitter

Twitter began in 2006 and functions differently than other social networking sites such as Facebook and MySpace. It is a Microblogging service that allows users to post “tweets.” Tweets are text-based posts of up to 140 characters that are displayed on the website and delivered to “followers.” The interface for Twitter is remarkably simple. There is a search feature where you can find individuals by their name or email address. Upon finding the user, you simply click their name to view all of their tweets. Users have the option of restricting access to their Twitter pages and limiting who is permitted to follow them. However, due to the simple nature of the site, it appears that most users allow public access to their profile.

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Twitter’s main focus is “news” thus it is extremely popular with news agencies and celebrities. Oftentimes we hear news personnel advising listeners to “follow them on Twitter.” In most cases, Twitter will not provide the depth of information that can be found on Facebook and MySpace profiles. II. CONDUCTING SEARCHES

A. Web Searches

When conducting a web search on a petitioner, it is most efficient to start with a simple name search. If the individual has a fairly common last name, try adding their city of residence to the search, their employer, or their spouse’s name if you have it, or any other information contained in your file that may yield positive results. One useful tip is to use double quotes (“search term“) if you want to search for a phrase. When searching Google, and is assumed between words that are not enclosed in quotation marks. If you would like to conduct a search using or between words, simply capitalize OR between each word. Double quotes can also be used when searching for a term on Yahoo. Yahoo allows users to add AND, OR, NOT, and AND NOT as long as the connectors are capitalized. As you wade through the results, you may identify additional search terms as you learn more about the petitioner. Once you’ve completed the basic web search, consider running a search on social networking sites.

B. Searching Social Networking Sites

Since Facebook is currently the most popular social networking site, we will focus on how to conduct a complete search of a petitioner using that service. After signing up for the service, it is a good idea to consider the privacy settings for your profile. If you do not plan to actively use the site for personal use, you may wish to leave the privacy settings on the default settings because anyone that searches for you would only be able to obtain your name.

1. A Note on Privacy Settings

For users who wish to alter the privacy settings to more restricted access, follow these steps.

1. Go to the Accounts tab on the top right after you sign in.

2. Select Privacy Settings

3. There are five sections of privacy: Profile Information, Contact Information, Applications and Websites, Search, and Block List.

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4. To fully restrict your privacy, you must go into each privacy section and customize each

option. 5. When available, select the “Only You” option which will allow only you to view that

information.

6. There are sections where the most restrictive option is “Only Your Friends.” Selecting this option will ensure that only those people you have accepted as a friend can see your information.

7. The most important section to visit when altering privacy settings is the Search section. The default search setting allows for anyone that searches for your name in a search engine will be able link directly into your profile. Change this setting so that your profile is restricted from a public search.

2. Locating the Petitioner’s Profile

In order to search for a petitioner, it is important to understand that your access to information will depend in part on the privacy settings the user selected for their profile. However, useful information can be obtained from users’ restricted profiles if you know how to search. Follow these steps to begin a basic search:

1. After signing on to Facebook, there will be a Search box in the top center of the screen. Simply type the petitioner’s name into the box.

2. If the petitioner has a fairly common name, you may be able to narrow your results by selecting a geographic area. Please note that narrowing someone down by a geographic area will only work if that individual has joined the geographic area you select.

3. If you review the search results but have no luck identifying the petitioner, consider setting your geographic region to the same geographic region the petitioner would have selected. Some individuals set their privacy settings to permit only individuals from the same geographic region to find them using a search.

4. Another option is to search by the individual’s email address. Take caution if no results are returned, as Facebook will ask whether you want to send an invitation asking them to join.

5. If you cannot locate the petitioner’s profile, consider using a search engine to identify the name of the petitioner’s spouse or children. Whitepages.com often provides the names of family members living in a household. If you can identify the names of family members, conduct a search to obtain their profiles.

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3. Obtaining Evidence from the Profile

Once you identify the petitioner’s profile, the information you are able to collect will depend on the privacy settings set by the petitioner. On the petitioner’s profile you will see links across the top. Although the links will vary depending on the petitioner’s privacy settings, some common options are: Photos, Wall, Info, Friends, Events, Notes, Videos, etc.

a) Photos

The individual’s profile picture is posted in the top left of the page. Immediately below the picture you may find hyperlinks to “View Photos of ____.” By clicking View Photos, you will be taken to portion of the profile that shows tagged photos, photo albums, and profile pictures. Tagged photos contain pictures that may be linked to photo albums uploaded in someone else’s Facebook. Note that when you click on a tagged photo, the name of the photo album and the name of the owner of the album is located on the bottom right of the picture. Since some individuals “untag” photos of themselves, click the hyperlinked photo album name to get access to all of the photos in that album. This will allow you to see whether there are any additional photos of the petitioner in the album that were not tagged. Once you have looked through the entire album, you can sometimes select the link located on the top left of the photo that says either “Back to ______________’s Photos” or “_____________’s Photos.” If there is sufficient access, you will be able to see additional photo albums that may contain photos of the petitioner. As mentioned above, on the page you linked into by selecting the link under the petitioner’s profile picture, you may also find Photo Albums posted by the petitioner and profile pictures. Please note that if the user has removed the link to view pictures, you may still be able to obtain photo albums of the petitioner by obtaining links to albums from the Wall feed which is discussed below.

b) The Wall Tab

Information available on the Wall will vary greatly depending on the user’s privacy settings. On a viewable wall, you will see information posted by the Profile owner and anyone else who has posted on the Wall. To filter the results there is a magnifying glass on the upper right side. Once you click it, three options will appear. Petitioner + Friends are the default view. Just Petitioner shows you posts made by the petitioner only. Just Friends removes all posts by the Petitioner. The Wall may provide you with information about when the petitioner makes posts on other users’ walls. It may also provide you with information about items that have been added or subtracted from the user’s profile.

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At the bottom of the Wall feed there is a light grey box with a link that allows you to view “Older Posts.” Do not forget to review the older posts, as it often contains useful information.

c) Information Tab

Under this tab, you will find links to background information, contact information, education and work history, groups, and pages. If you click the links into the various groups and pages the petitioner belongs to, you may identify additional posts the petitioner has made on the group’s page. The education and work history link may provide you with information about whether the petitioner is working somewhere else. If you select the hyperlink for the employer’s name, it will link you into other individuals that have listed the same employer.

d) Friends

On the profile, you will see a box on the left hand side titled “Friends.” If your petitioner is not an active user of Facebook, or if they have a restricted profile, do not forget to check out the links to their friends pages. To view all of the petitioner’s friends, select “See All.” Another box will pop up listing all of the petitioner’s friends. Sometimes individuals have over 400 friends, thus it may be necessary to narrow down the results. A search box will appear in the upper right hand corner. First, try typing in the petitioner’s last name which will likely produce family members. TIP: Hold down Ctrl when clicking on the individual’s name to open that person’s profile in a new window. Review the different individuals’ pages to see whether they have posted anything about the petitioner, including photos and Wall posts. Also determine whether the petitioner has posted anything on the person’s Wall. Second, if you have access to the petitioner’s Wall, you can identify individuals that post regularly. You may also be able to identify individuals that the petitioner spends a lot of time with. Search the Friend list for these individuals, and review their pages for information. Third, if the petitioner has listed any family members under the Information tab, search Friends for these individuals. III. HOW SEARCH ENGINES AND SOCIAL NETWORKING SITES HAVE AFFECTED

WORKERS’ COMPENSATION CASES

Research has shown that users of social networking sites post personal information about themselves that they oftentimes would not share during a face to face conversation. Petitioners that are supposedly too disabled to work may post locations and dates for upcoming sports

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competitions, may boast about new businesses they are launching, and may post time stamped photographs showing their physical activities. Some employees may even identify another injury that actually caused the injury they are claim was caused by work. According to an article from Business Insurance called “Comp Cheats Confess on All Social Networking Sites,” Roberto Ciniceros, Comp Cheats Confess on All Social Networking Sites, Business Insurance, Sept. 7, 2009, available at http://www.businessinsurance.com/article/20090906/ISSUE01/309069984 (last accessed Apr. 15, 2010). Special Investigator Pierre Khouri believes social networking sites are a “new kind of video camera” for investigators. Investigators can obtain profile pictures, addresses, and schedules from the petitioner’s social networking site. This allows them to find and track petitioners with greater ease. The article also identifies cases where social networking has assisted in the investigation of workers’ compensation claims.

1. In Los Angeles, a warehouse worker filed a workers’ compensation claim for a back injury. Traditional surveillance proved fruitless. Once the investigator found the petitioner’s Facebook page, he learned that the petitioner participated in bowling tournaments and identified the bowling alley he frequented. When the investigator visited the bowling alley, he found a large banner congratulating the petitioner for rolling a perfect game and the date of the game. Shockingly, the date of the game was after the alleged injury date.

2. In another case, a petitioner alleged a permanent and total back injury. His social networking website indicated that he was also working as a judo instructor. Additionally, the site provided the dates and locations of the classes he was teaching.

3. A different petitioner alleged that he was not able to get out of bed after suffering a work related injury. However, his profile provided his scheduled competition dates to perform as a rodeo bronco rider. The investigator was able to obtain videos of him riding bucking broncos.

4. Several investigators reported that various petitioners had posted information about bands they play in during their free time. Since bands frequently post their engagement dates, investigators have been able to obtain video of petitioners performing highly physical concerts.

5. A petitioner in Florida posted information about his side business of selling jerky at flea markets. This information was used to compromise his workers’ compensation claim.

Our firm has used social networking websites and search engines to obtain information about petitioners that has been useful in defending claims.

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In one case, a petitioner was alleging an injury to his back. We found out that this petitioner had secretly moved to Iowa and was working with another company even though he claimed he was completely incapable of working due to his injury. We provided his profile picture, his address, and information about his employer to an investigator in order to obtain surveillance to use against him. In another case, a petitioner’s Facebook and MySpace pages provided us with an accident history that conflicted with the report she provided her employer and her physicians. This petitioner also posted information on co-workers’ pages that caused us to further question her claim. It is important to remember not every petitioner’s social networking profile will be “smoking gun” that blows the case out of the water. However, information on social networking sites can often lead to the discovery of evidence that can be used against the petitioner. Additionally, you will likely gain some extra insight into the life of the petitioner which will help you further evaluate the claim. IV. A QUICK POINTER ON ETHICAL CONSIDERATIONS

Legally, there are no court rules, statutes, or laws that specifically prevent you from searching a petitioner’s social networking profile. However, there are laws against direct contact with a petitioner that is represented by counsel. Thus, you should never contact a petitioner, represented or not, over their social networking page. If a petitioner has set the privacy settings to prevent you from accessing information on his or her page, do not sent them a friend request! In addition to violating court rules, your investigation will not yield the type of results you are looking for if the petitioner is aware of your access to their page. Additionally, do not ask a third party to contact a witness or the petitioner to request access to the petitioner’s page. In a civil case, an attorney contacted a third party and asked the person to send a friend request to a witness. This third party did not identify why the request was being made. An informal ethics opinion was then issued finding that this was unacceptable behavior. Thus, the best rule of thumb is to only access information that is available to you without having to send a friend request. V. CONCLUSION

Web searches and social networking searches are free, can be completed without expending a significant amount of time, and can result in huge rewards. For these reasons, we recommend conducting searches of all petitioners. If you have any questions about how to conduct a search or need any further assistance, please contact any of our workers’ compensation attorneys.

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Stacie K. Linder - Associate

Stacie is an associate in our Peoria office. She has experience in a wide variety of litigation matters, workers' compensation defense, and real estate and business transactions. Stacie has worked on a variety of claims including will contests, workers' compensation arbitrations, real estate transactions, and automobile accidents. Selected Publications "Workers' Compensation Appellate

Procedures," ABA Committee Newsletter (2007)

Professional Recognition Prairie State Legal Services – Outstanding

Commitment to Pro Bono Services, 2008

Professional Associations Peoria Bar Association (Young Lawyers

Committee; Chair, Membership Committee) Illinois State Bar Association American Bar Association Abraham Lincoln American Inn of Court


Illinois

Education Juris Doctor (Honors), Drake University Law

School, 2006 Bachelor of Science-Business, Miami University,

2003


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UPDATE FROM THE ILLINOIS WORKERS’ COMPENSATION COMMISSION

Presented and Prepared by: Bruce L. Bonds




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I. NEWS FROM THE ILLINOIS WORKERS’ COMPENSATION COMMISSION .............................. E-3

A. Public Commissioner Paul Rink Retires ................................................................................ E-3 B. Mitchell Weisz New Acting Chairman ................................................................................... E-3

C. Mileage Rate ................................................................................................................................... E-3 II. UPDATE FROM THE RULES TASK FORCE ............................................................................................ E-4 III. AT THE IWCC ................................................................................................................................................. E-4 A. Filed Cases Have Declined 7% Since 2004 and 20% Since 2001................................. E-4 B. Arbitrator Decisions Increased Over 35% . . . ..................................................................... E-5 C. The Outcome of Appeals on Review in FY08...................................................................... E-5

D. Cost Savings Are Being Experienced As a Result of Use of the CPI-U Instead of the CPI-M .......................................................................................... E-6

E. WC Rates 2006-2009: IL v. Nation .......................................................................................... E-6 F. . . . Surrounding States Still Have a Significant Economic Advantage Over Illinois in Workers’ Compensations Costs and Premiums ................................... E-7

IV. EMPLOYER CONCERNS WITH RESPECT TO THE 2005 AMENDMENTS GOING FORWARD ............................................................................................ E-7 A. Employer Concerns of 2005 Amendments Going Forward ........................................... E-7

B. Charges for Surgical Hardware and Implants ..................................................................... E-7 C. Application of Utilization Review ............................................................................................ E-7

D. Enhance the Impartiality of the Illinois Workers’ Compensation Adjudication System ...................................................................................... E-8 E. Acknowledge Workers Have Responsibility to Be Alcohol and Drug Free In Work Places ................................................................................. E-8 F. Revise Workers’ Compensation Fraud Statute ................................................................... E-8

E-3


I. NEWS FROM THE ILLINOIS WORKERS’ COMPENSATION COMMISSION

A. Public Commissioner Paul Rink Retires

Effective February 26, 2010, public Commissioner Paul Rink has retired. Mr. Rink leaves vacant the public commissioner position on Panel B which also consists of employee representative Barbara Sherman and employer representative Kevin Lamborn. Until a new commissioner is appointed, the Commission will be endeavoring to cover Commissioner Rink’s place during oral arguments and review calls with one of the two other public commissioners to wit, Yolaine Dauphin and James DeMunno. There is no time table for appointment of Commissioner Rink’s replacement which, as with most things at the Illinois Workers’ Compensation Commission, will no doubt be done in secret.

B. Mitchell Weisz New Acting Chairman

Effective March 22, 2010, Mitch Weisz was appointed Acting Chairman of the Illinois Workers’ Compensation Commission by Governor Pat Quinn. He was appointed to finish the term of retiring Commissioner Paul Rink which expires January 2013. Amy Masters has returned to her previous position of Secretary of the Commission/Operations Manager. Mr. Weisz was formerly a petitioners’ attorney. On the IWCC website, he has posted the following message:

I would like to take this opportunity to express how honored and privileged I am to join the dedicated staff of the IWCC. Together we will evaluate ideas generated from both within the Commission and outside sources to progressively improve our implementation of the Workers’ Compensation Act. Collectively we are committed to providing efficient, timely, and respectful service to the employees and businesses in the State of Illinois. Above all, we aim to administrate the Act within the law fairly and equally on behalf of the workers and employers of the great state of Illinois. Your input is exceedingly valuable to me and I look forward to hearing from you. Please feel free to email me at [email protected] or call 312-814-6560.

C. Mileage Rate

Effective January 1, 2010 through June 30, 2010, the mileage rate as set by the Governor’s travel control board has been reduced to 50 cents per mile. This is the amount to be paid for travel expenses for section 12 medical evaluations.

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II. UPDATE FROM THE RULES TASK FORCE

To date the Committee appointed by former acting chairman, Amy Masters, to review and revise the rules governing to practice for the Illinois Workers’ Compensation Commission has met twice, both times in Chicago. A March meeting which had been scheduled in Springfield was canceled due to the retirement of Kathryn Kelley, the former general counsel of the Commission. Now that Amy Masters is no longer the acting chair, it is not clear when the group will meet again. To date, issues which have been discussed, including the rules dealing with:

1. Arbitrator disqualification.

2. Mandatory e-filing of employer’s first report of accident (Form-45).

3. Changes to the rules that disadvantage downstate counsel.

4. Rules dealing with settlement contracts which have not been approved and/or rejected. It is hoped that in the future the Committee will also deal with rules that will make it easier for the employer to obtain a trial and stop or curtail the petitioner’s counsel from setting all cases every month.

III. AT THE IWCC

A. Filed Cases Have Declined 7% Since 2004 and 20% Since 2001

53,00054,00055,00056,00057,00058,00059,00060,00061,00062,000

20042005

20062007

2008

61,554

57,042

56,203

57,882

57,004

IWCC Cases Filed

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B. Arbitrator Decisions Increased Over 35% . . .

C. The Outcome of Appeals on Review in FY08

Petitioners • 72% Cases Affirmed • 9% Cases Reversed • 15% Cases Modified with Increase in Benefits • 4% Cases Modified with Decrease in Benefits

Respondents

• 66% Cases Affirmed • 6% Cases Reversed • 6% Cases Modified with Increase in Benefits • 21% Cases Modified with Decrease in Benefits

0

500

1000

1500

2000

2500

3000

3500

4000

2000 2004 2005 2006 2007 2008

2,606

3,759 3,5783,899

3,644 3,594

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D. Cost Savings Are Being Experienced As a Result of Use of the CPI-U Instead of the CPI-M

E. WC Rates 2006-2009: IL v. Nation

Illinois Rate Changes since 2005: • 2006 = +6.5% • 2007 = +2.0% • 2008 = +1.6% • 2009 = +3.5% • Total = +13.6%

2006-2009= -17.4%

• FL: -18.6% + 6.8% (nearly -70% since 2006) • CO: -16% (-26.5% since 2006) • AR: nearly -20% the past two years • PA: -19% since 2006 • NY: -22% since 2006

Source: NCCI Illinois State Advisory Forums

‐5

0

5

10

15

20

25

2006 2007 2008 2009 2010 Total

Application of CPI-U Resultsin 5.16% Savings in 2010(down 1.48% 1/09 – 1/10)

CPI‐U

CPI‐M

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F. . . . Surrounding States Still Have a Significant Economic Advantage Over Illinois in Workers’ Compensations Costs and Premiums

State 2008 Ranking 2006 Ranking

Illinois 11 21

Missouri 28 25

Wisconsin 34 35

Iowa 41 45

Indiana 50 50

IV. EMPLOYER CONCERNS WITH RESPECT TO THE 2005 AMENDMENTS GOING

FORWARD

A. Employer Concerns of 2005 Amendments Going Forward

• Requiring the workplace to be the principle cause of an injury – HB6159 provides that an injury by accident is compensable only if the accident was the

“prevailing factor” in causing both the resulting medical condition and disability

• Allow credit for previous man as a whole claims and limit permanent partial disability to 100% of a man as a whole

• Allow reopening of wage differential cases for changes in economic circumstances

B. Charges for Surgical Hardware and Implants

• IL: Current 65% of charge – No limit on charge

• Other States: Cost plus from 0 to 60% – Average 20% over cost

C. Application of Utilization Review

• Require medically defined objective evidence for disability determinations

• Require UR reports to be presumptively valid and admissible

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D. Enhance the Impartiality of the Illinois Workers’ Compensation Adjudication System

• Merit review of all future arbitrators

• Requirement that all future arbitrators have 10 years of experience in workers’ compensation

• Apply impartiality ethics akin to Illinois court’s review of judges

E. Acknowledge Workers Have Responsibility to Be Alcohol and Drug Free In Work Places

• HB5721 would provide no compensation as payable if an injury was caused primarily by the intoxication of the employee, the influence of alcohol or certain drugs not prescribed by a physician, where the combined influence of alcohol and drugs affected the employee to the extent the intoxication constituted departure from the employment

F. Revise Workers’ Compensation Fraud Statute

• SB3832 (Brady) provides that the Illinois Workers’ Compensation Commission may recall a decision or settlement when fraud has been determined to be committed related to the case

• Lack of prosecution by State’s Attorney

• Filing of alleged fraud complaint is chilled by requiring a complainant’s name be reported to the employer or employee

• Lack of information about fraud convictions

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Bruce L. Bonds - Partner

Bruce is the immediate past Chair of our state-wide workers' compensation practice group and has spent his entire legal career with Heyl Royster beginning in 1982 in the Peoria office. He concentrates his expertise in the area of workers' compensation, third-party defense of employers, and employment law. He served as a technical advisor to the combined employers group in the negotiations which culminated in the 2005 revisions to the Illinois Workers' Compensation Act.

Bruce was recently appointed by Amy Masters, Acting Chairman of the Illinois Workers' Compensation Commission, to a committee of attorneys who will be reviewing and making recommendations for revisions to the rules governing practice before the Illinois Workers' Compensation Commission.

With extensive experience before the Illinois Workers' Compensation Commission, Bruce has defended employers in thousands of cases during the course of his career. As a result of his experience and success, his services are sought by self-insureds, insurance carriers, and TPAs.

Bruce is an adjunct professor of law at the University of Illinois College of Law where he has taught workers' compensation law to upper-level students since 1998.

Bruce has co-authored a book with Kevin Luther of the firm's Rockford office entitled Illinois Workers' Compensation Law, 2009-2010 Edition, which was recently published by West.* The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois.

Bruce is a frequent speaker on workers' compensation issues at bar association and industry-sponsored seminars.

Bruce has served as Vice-Chair of the ABA Committee on Employment, Chair of the Illinois State Bar Association Section Council on Workers' Compensation, and currently serves on the Employment Law Committee of the Chicagoland Chamber of Commerce and the Illinois Chamber of Commerce Workers' Compensation Committee. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Record; another survey published recently by Chicago Lawyer Magazine named Bruce one of the "Best Lawyers in Illinois" for 2008.



Public Speaking “The 2005 Amendments, 3 Years Later: The

Respondent” SafeWorks 16th Annual Work Injury Conference 2008

“Update on the Illinois Workers’ Compensation Act and Medical Fee Schedule” Illinois-Iowa Safety Council Annual Convention 2008

“Impact of the New Medical Fee Schedule” SafeWorks 14th Annual Work Injury Conference 2006

“Penalties, Penalties and More Penalties, The Changes to Section 19 and Strategies for Minimizing Penalties Exposure” CCMSI 2008

Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only



Professional Associations American Bar Association (Past Vice-Chair of

Employment Law Committee) Illinois State Bar Association (Past Chair

Workers' Compensation Law Section Council) Champaign County Bar Association Illinois Association of Defense Trial Counsel

(Member, Workers' Compensation Committee) Defense Research Institute Illinois Self-Insurers Association




Law, 1982 Bachelor of Arts-Finance, University of Illinois,

1979



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A VIEW FROM THE COMMISSIONER: THOUGHTS AND COMMENTS FROM THE BENCH

Presented and Prepared by: Nancy H. Lindsay

Commissioner Illinois Workers’ Compensation Commission

The views of independent presenters may not represent the views of Heyl, Royster, Voelker & Allen.

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Nancy H. Lindsay Commissioner Illinois Workers' Compensation Commission Nancy Lindsay was appointed to the Illinois Workers' Compensation Commission in June of 2006, as an employer representative. Prior to her appointment, Commissioner Lindsay was engaged in the private practice of law. For over twenty years she represented small businesses, major corporations, self-insured businesses, and insurance companies at all levels of workers' compensation proceedings throughout Central Illinois. Commissioner Lindsay received her law degree from St. Louis University School of Law, a Master's Degree in Legal Studies from the University of Illinois at Springfield, and her undergraduate degree, summa cum laude and Phi Beta Kappa, from Illinois College where she was also honored with the College's Young Alumnus Award in 1991. While engaged in private practice she was active in various community groups, taught part-time in the Business Department at Illinois College, and belonged to numerous professional organizations focusing on workers' compensation issues. Over the years, she has been a frequent lecturer on workers' compensation law and related issues. Commissioner Lindsay divides her professional time between Springfield and Chicago, thereby constantly testing the limits of the "traveling employee." She currently presides over review hearings in Chicago, Peoria, and Quincy. She resides in Springfield, Illinois, and, with two teenage children, can only dream of hobbies, free time, and high school graduation.

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TTD FACT SCENARIOS: INTERSTATE SCAFFOLDING CASE AND HOW TO SUSPEND TTD

Presented and Prepared by: Kevin J. Luther

[email protected] Rockford, Illinois • 815.963.4454



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I. GENERAL TTD PRINCIPLES ...................................................................................................................... G-4

A. Supreme Court Addresses Propriety of TTD Termination Where Employee Is Fired for Violating Company Rules ................................................ G-4

1. Factual Background ...................................................................................................... G-5 2. Procedural History ........................................................................................................ G-5 3. Supreme Court Analysis ............................................................................................. G-6 4. What Does Interstate Scaffolding Mean in Other TTD Termination Settings? ........................................................................... G-7

II. RECURRING TTD PATTERNS ................................................................................................................. G-11

A. Petitioner Was Off Work and Had Not Yet Returned to Work Prior to the Economic Layoff ..................................................................................... G-11

B. Petitioner Returned to Work with Restrictions (Perhaps Light Duty) and the Employer Accommodated the Restrictions at a Lower Wage Rate, and the Petitioner Is Laid Off ................................................................................................................. G-11

C. The Petitioner Returns to Work with Restrictions to His Former Job, Was Not at MMI, the Employer Accommodated the Restrictions with No Wage Loss, and the Petitioner Is Laid Off ................................................................................................. G-11

D. Petitioner Returned to Work with Restrictions, Was Not at MMI, and Was Able to Perform His Former Job Because the Restrictions Do Not Interfere with Job Performance ............................................ G-12

E. Petitioner Is at MMI without Restrictions, Returns to Former Employment, Then Laid Off .................................................................................................... G-12

F. Petitioner Is at MMI with Restrictions, Returns to Former Employment, but No Accommodation is Necessary, and Is Then Laid Off .................................................................................................................. G-12

G. Petitioner Is at MMI with Restrictions, Restrictions Interfere with Regular Job Duties, Employer Accommodated the Restrictions, and Then Petitioner Is Laid Off .................................................................... G-12

H. Petitioner Is at MMI with Restrictions, Is Laid Off, then Obtains Same Employment Elsewhere at a Lower Wage ............................................................ G-13

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I. Petitioner Is Not at MMI, Obtains Employment Elsewhere After Being Laid Off, Subsequent Employer Accommodates Restrictions at a Lower Wage ................................................................................................ G-13

J. Petitioner Is Not at MMI Because She Delays in Arranging Future Surgery/Treatment, Is Working Light Duty at the Same or Reduced Rate, and Is Then Laid Off .................................................................................................................. G-13

K. Petitioner Not at MMI, Offered Modified-Duty Work and Refuses, and Is Then Laid Off ................................................................................................ G-13

III. LIMITING TTD EXPOSURE DURING LAYOFFS ................................................................................. G-14 IV. ADDITIONAL TTD ISSUES ....................................................................................................................... G-14

A. TTD and Illegal Aliens .............................................................................................................. G-14 B. TTD and Failure to Attend IME .............................................................................................. G-15 C. TTD and Unemployment Compensation .......................................................................... G-15 D. TTD and Incarceration .............................................................................................................. G-16 E. TTD and Retirement .................................................................................................................. G-16 F. Occasional Wages and TTD Liability ................................................................................... G-17 G. TTD Liability and Social Security Benefits ......................................................................... G-17 H. TTD and Unsanitary or Injurious Practices ........................................................................ G-17

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I. GENERAL TTD PRINCIPLES

Temporary total disability benefits are awarded for the period of time from when an employee is injured until he/she has recovered as far as the character of the injury will permit. Mechanical Devices v. Industrial Comm'n, 344 Ill. App. 3d 752, 760, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist. 2003). A person is considered totally disabled when he or she cannot perform any services except those that are so limited in quantity, dependability, or quality that there is no reasonably stable market for them. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 122, 675 N.E.2d 175, 221 Ill. Dec. 268 (1st Dist. 1996). The dispositive test for determining TTD duration is whether the petitioner’s condition has stabilized, i.e., reached maximum medical improvement (MMI). Mechanical Devices v. Industrial Comm'n, 344 Ill. App. 3d 752, 759, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist. 2003). The factors to consider in deciding whether a petitioner’s condition has stabilized include: (1) a release to return to work; (2) the medical testimony about the petitioner’s injury; and (3) the extent of the injury; and (4) whether the injury has stabilized. Land and Lakes Co. v. Industrial Comm'n, 359 Ill. App. 3d 582, 594, 834 N.E.2d 583, 296 Ill. Dec. 26 (2d Dist. 2005). This test sets the outer boundary for TTD benefits and a demarcation between entitlement to TTD benefits and permanency. A person may not have reached MMI but is nevertheless no longer receiving TTD benefits because he is back to work and performing his former job, even with restrictions. A petitioner seeking TTD benefits must prove not only that he did not work but also that he was unable to work. Anders v. Industrial Comm'n, 332 Ill. App. 3d 501, 507, 773 N.E.2d 746, 266 Ill. Dec. 11 (4th Dist. 2002). However, “unable to work” does not mean that the petitioner is obligated to look for other work. In Lukasik v. Industrial Comm'n, 124 Ill. App. 3d 609, 615, 465 N.E.2d 528, 80 Ill. Dec. 416 (1st Dist. 1984), the court did note that the period of temporary total disability may terminate before the petitioner has recovered to the full extent. In Lukasik, while the record reflected that the petitioner may not have fully recovered as of the date TTD was terminated, the Appellate Court found that the Commission could properly have determined that he was no longer totally disabled and unable to work. The court found no basis from the evidence to justify petitioner’s failure to seek any employment following his release for light work, and the court therefore denied TTD benefits at that point.

A. Supreme Court Addresses Propriety of TTD Termination Where Employee Is Fired for Violating Company Rules

On January 22, 2010, the Illinois Supreme Court issued its much-awaited decision in Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132, 923 N.E.2d 266, 337 Ill.

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Dec. 707 (2010). The issue before the court was whether an employer’s obligation to pay temporary total disability (TTD) workers’ compensation benefits to an employee ceases when the employee is terminated for conduct unrelated to the injury. The Supreme Court broadly held that an employer’s obligation to pay TTD benefits continues until the employee’s medical condition has stabilized or until the petitioner is capable of reentering the work force. This month’s issue of Below the Red Line focuses on the Interstate Scaffolding decision and the effect it may have on how employers handle other TTD issues.

1. Factual Background

The petitioner, Jeff Urban, an employee of Interstate Scaffolding, injured his head, neck, and back in an accident while in the course and scope of his employment. His physician released him for light duty, and he continued to work for Interstate Scaffolding in that capacity. After writing some religious “graffiti” on a wall in a storage room on the employer’s premises, he was fired for defacement of property. Following his termination, the employer ceased paying his TTD benefits.

2. Procedural History

Arbitrator Hennessy heard the case and determined that the petitioner’s TTD benefits ended on the date of his termination for cause. According to the arbitrator’s decision, “[n]otwithstanding the divisive, conflicting testimony regarding the arguments and confrontations of May 25, 2005, at the [employer’s] place of business and the unusual basis for the termination of the Petitioner, this Arbitrator finds the Petitioner is not entitled to temporary total disability benefits subsequent to his termination of May 25, 2005.” Interstate Scaffolding, 236 Ill. 2d at 139. Arbitrator Hennessy did not provide any explanation for the termination of the TTD benefits after the petitioner’s termination. On review, the Illinois Workers’ Compensation Commission overturned Arbitrator Hennessey’s ruling and held that the petitioner was entitled to TTD benefits beyond the date of his termination “based on the fact that [the claimant’s] condition had not stabilized as of the June 29, 2005, Arbitrator’s hearing.” Id. at 143. The Commission did not make any findings with regard to Urban’s termination. The circuit court confirmed the Commission’s decision, and the matter proceeded to the Appellate Court, Workers’ Compensation Division, which in a 3-2 decision reversed the Commission’s decision on the issue of TTD. The court concluded that although the petitioner’s condition had not stabilized and even the employer’s IME had opined a need for cervical surgery, he was not entitled to TTD benefits because he was terminated “for cause” on May 25, 2005. In reaching this decision, The Appellate Court majority reviewed several factually similar Illinois decisions and concluded that “the critical inquiry in determining whether the employee is entitled to TTD benefits after leaving the work force centers on whether the departure was voluntary.” Id. The majority believed that the petitioner, by violating work rules and defacing company property, had voluntarily withdrawn himself from the work force and therefore was not

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entitled to continued TTD benefits. According to the Appellate Court, “[t]he overriding purpose of the Illinois workers’ compensation scheme is to compensate an employee for lost earnings resulting from a work-related disability.” Interstate Scaffolding, Inc. v. Workers’ Compensation Comm’n, 385 Ill. App. 3d 1040, 1047, 896 N.E.2d 1132, 324 Ill. Dec. 913 (3d Dist. 2008). Removing one’s self from the work force by violating company rules is not the same as losing earnings from a work-related disability. Two of the five justices dissented. Although agreeing with the majority in principle – that TTD may be terminated when an employee is fired for violating company rules – the two dissenting justices advocated that if the employee can establish that the medical restrictions resulting from the work-related injury prevents him from securing employment at pre-injury work levels, TTD benefits should be payable for the loss of earning capacity. Following the decision and on motion of the petitioner, two of the justices made the appropriate finding under Supreme Court Rule 315(a) that the case involved significant issues warranting Supreme Court review.

3. Supreme Court Analysis

The Supreme Court accepted the employee’s petition for leave to appeal and after extensive briefing (including an amicus brief on behalf of the Association of Illinois Defense Counsel authored by Heyl Royster), the Supreme Court held that as a matter of law an employer’s obligation to pay TTD benefits to an injured employee does not cease because the employee has been discharged, even for cause. When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains whether the petitioner’s condition has stabilized. In reaching this conclusion, the Supreme Court cited section 8(b) of the Act, which states: “weekly compensation . . . shall be paid . . . as long as the total temporary incapacity lasts.” Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Comm’n, 236 Ill. 2d 132, 142, 923 N.E.2d 266, 337 Ill. Dec. 707 (2010). The court then noted that the Commission’s determination of how long the petitioner was temporarily totally incapacitated was a question of fact that could only be disturbed if it was against the manifest weight of the evidence. The Supreme Court took issue with the fact that while the Appellate Court admitted there was sufficient evidence that the petitioner had yet to reach MMI, it nonetheless failed to uphold the Commission’s decision.

Practice Pointer #1: If you have a situation where the petitioner has been terminated for a voluntary act of misconduct while working with restrictions, consider whether an IME could be conducted to find the petitioner has reached MMI.

Looking to the language of the Act, the court noted that there was no statutory language providing that TTD benefits can be terminated, suspended, or denied when an employee is

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discharged for “volitional conduct.” Since the Act failed to specifically grant the Commission the power to evaluate whether the discharge was the result of an employment decision, the Commission lacked the power to make such a determination. Thus, the court held that the Commission’s only focus in such cases must be whether the petitioner is at MMI or ready to re-enter the work force.

Practice Pointer #2: If the petitioner is not at MMI but is capable of working, consider performing a formal or informal job search to identify other jobs available to the petitioner within the restrictions. If it can be shown that the petitioner was capable of re-entering the work force, even if he is not at MMI, he would not be entitled to TTD benefits.

According to the court, the Commission’s exclusive focus in determining whether an employee is entitled to TTD is whether the petitioner’s condition has stabilized (reached MMI) or whether the employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury. Therefore, whenever a petitioner has not yet reached MMI and he remains temporarily totally disabled as a result of his work-related injury, Interstate Scaffolding says he will be entitled to TTD benefits, regardless of whether he has been terminated for violating company rules or not.

4. What Does Interstate Scaffolding Mean in Other TTD Termination Settings?

The Supreme Court’s ruling makes it clear that the Act provides TTD benefits to an employee so long as he is not at MMI or is temporarily totally disabled as a result of his work injury. Although this has been the relevant standard for many years, the court’s strict interpretation of the Act likely means that judicial exceptions will not be allowed and that absent a guiding provision of the Act, the sole determinative issue is whether the employee has reached MMI. While it is very possible that the decision may cause the Commission to be reluctant to terminate a petitioner’s TTD benefits prior to MMI, there are still valid arguments for terminating TTD in various situations that have not been specifically overruled by Interstate Scaffolding. Interstate Scaffolding does not say that a petitioner is entitled to be paid TTD benefits ad infinitum. Terminating TTD remains one of the most effective ways of bringing a case to rapid conclusion, and thus grounds for terminating TTD should be carefully evaluated.

a) Terminating TTD When Providing Employment within Restrictions

Employers frequently terminate TTD benefits pre-MMI by providing employees with temporary employment within the physician’s restrictions while they continue to receive treatment and heal. Such practices should not be affected because the thrust of Interstate Scaffolding centers on how an employer can terminate TTD benefits when an employee has not reached MMI and has not received a full release to return to work.

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b) Terminating TTD When the Employee Refuses to Work Within the Restrictions

Illinois law is well-settled that TTD benefits can be cut off if the employee refuses work falling within the physical restrictions prescribed by his doctor. See, 820 ILCS 305/8(d); Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 166, 601 N.E.2d 720, 176 Ill. Dec. 22 (1992). Under this section of the Act, employees who refuse to comply with an employer’s offer of light-duty work within the physician’s restrictions should not be entitled to TTD. Gallentine v. Industrial Comm'n, 201 Ill. App. 3d 880, 559 N.E.2d 526, 147 Ill. Dec. 353 (2d Dist. 1990). However, with the advent of temporary partial disability, which entitles the employee to a temporary wage differential, current law suggests that the employer may still be obligated to cover the partial TTD until the petitioner reaches MMI.

c) Terminating TTD Based on Employee Layoffs

Another scenario, although not specifically addressed by the court in Interstate, is whether an employee is entitled to TTD benefits when the employee is laid off for reasons unrelated to the injury by the employer prior to reaching MMI. There are cases that have held that the employee is entitled to TTD benefits unless the employer could obtain employment for the employee within the restrictions elsewhere. See, Whitney Productions, Inc. v. Industrial Comm’n, 274 Ill. App. 3d 28, 653 N.E.2d 965, 210 Ill. Dec. 770 (2d Dist. 1995). However, a recent decision by the Illinois Workers' Compensation Commission reached a contrary result. In Gonzalez v. ITT Industries, IL.W.C. 16303, 09 I.W.C.C. 1182, 2009 WL 5067488 (Nov. 9, 2009), the petitioner was not entitled to TTD after he was released with a light-duty restriction when all employees had been laid off due to the economy. The Commission concluded that the petitioner was not temporarily totally disabled because the release to light-duty work fundamentally meant that he was not totally disabled. Since the petitioner was not placed at a disadvantage over the able-bodied employees, he was not entitled to TTD. In other words, because all of the employees were laid off, the petitioner had not been treated any differently than his co-workers. Finally, the Commission questioned whether the petitioner needed restrictions because he testified that there had been a change in his condition since the accident, even though his doctor eventually released him at MMI. According to Gonzalez, when a petitioner is laid off, consideration must be given to whom is affected by the layoff, the extent of the petitioner’s restrictions and whether it is possible to show that the petitioner is at MMI. Gonzalez is likely to be appealed, and we will keep you advised when the judiciary resolves the issue raised in that case.

In Residential Carpentry, Inc. v. Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 975, 910 N.E.2d 109, 331 Ill. Dec. 36 (3d Dist. 2009), the petitioner was performing work as a carpenter. On the date of the occurrence, the petitioner claims that he noticed a sharp pain in his shoulder. The petitioner underwent conservative treatment, including injection and physical therapy. The petitioner’s treating physician recommended surgery even though the petitioner had slight improvement.

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The petitioner testified that the respondent refused to authorize the procedure. The petitioner returned to work and then alleged an aggravation/injury. The petitioner was examined by a treating physician and was placed on some work restrictions, which were honored by the respondent. Approximately one and one-half years later, the petitioner was laid off. The petitioner testified that he unsuccessfully attempted to be rehired by the employer. He claimed that he attended regular union meetings in an effort to secure employment. The petitioner testified that he had a conversation with the respondent’s superintendent, who told him that they were “not busy” but that there were “problems” with respect to the petitioner’s last job and that he would be better off to seek employment elsewhere. The petitioner testified that he attempted to obtain a position with 15 to 20 other contractors, and the petitioner did keep and introduced a written log documenting his efforts in looking for work. Medically, the petitioner continued under the care of his treating physician, who continued to suggest that the petitioner undergo surgery. At trial, the employer presented testimony of the safety director. The safety director testified that he did not discuss the petitioner’s restricted duty request for work with the petitioner’s supervisor. The safety director testified that the petitioner never contacted him with respect to employment, but at the same time the safety director testified that he did not make decisions regarding hiring. The safety superintendent testified that at the time of trial, there were some light-duty jobs available. The arbitrator awarded the petitioner 28 weeks of TTD benefits and also ordered that the respondent pay for reasonable related medical expenses and approve the surgical procedure that was recommended by the treating physician. Penalties and attorneys’ fees were imposed for refusal to approve that surgery. On the issue of temporary total disability, the Appellate Court noted that to be entitled to TTD benefits, the petitioner must show not only that he did not work but that he could not work. Archer Daniels Midland Co. v. Industrial Comm’n, 138 Ill. 2d 107, 561 N.E.2d 623, 149 Ill. Dec. 253 (1990). The Appellate Court stated that in this particular case the dispute was not over whether the petitioner’s condition has stabilized; rather, the issue “is whether the claimant’s condition renders him totally disabled.” On this issue of whether or not the petitioner was totally disabled, the respondent pointed out that the petitioner worked his regular job for 25 months before being laid off. The Appellate Court noted that the petitioner’s treating physician did impose work restrictions on the petitioner, which were honored, and the petitioner continued to work the final 17 months in a capacity that was less than full work duty. The Appellate Court then noted that because the petitioner was able to work in some capacity despite his condition means that the petitioner was not “obviously unemployable,” so it stated that the petitioner then had to establish that there was no employment available to a person in his condition. This reasoning suggests that once it is shown that the petitioner is “not obviously

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unemployable,” the burden actually shifts to the petitioner to establish that there is no employment available to him or her. To this end, the Appellate Court noted that the petitioner did provide evidence of a diligent job search. (He put into evidence his written job log and also testified that he remained in contact with his union and, from time to time, employer to determine if work was available.) In doing this, the Appellate Court noted that the petitioner “had fulfilled this burden,” and it was for the respondent to show the petitioner was not otherwise employable during this period. In reviewing the record, it noted that the respondent did not fulfill its burden. It did not show that the petitioner was not otherwise employable during this period of time. It noted that merely showing that the petitioner continued to work under medical restrictions did not establish that the petitioner was “otherwise employable.” This is significant because it suggests that even when the petitioner is not at MMI (the petitioner was under restrictions and also had a surgical recommendation), it suggests that there is a requirement on the petitioner to show that he is not “obviously unemployable;” and if he does so, then the burden shifts to the employer. The Appellate Court next considered the petitioner’s argument that the petitioner was laid off for economic reasons, but it concluded that given the evidence, there was an “inference that the respondent was not being forthcoming when it told the claimant it had no work for him.”

d) Terminating TTD Where Employee Fails to Cooperate with Medical Care or Rehabilitation Efforts

The Workers’ Compensation Act provides specific scenarios where an employer may terminate TTD benefits. Under section 19(d), TTD benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery or if the employee fails to cooperate in good faith with rehabilitation efforts. See, 820 ILCS 305/19(d); R.D. Masonry, Inc. v. Industrial Comm’n, 215 Ill. 2d 397, 830 N.E.2d 584, 294 Ill. Dec. 172 (2005); Hayden v. Industrial Comm’n, 214 Ill. App. 3d 749, 574 N.E.2d 99, 158 Ill. Dec. 305 (1st Dist. 1991) (holding that TTD justifiably terminated by the employer when the injured employee was unwilling to cooperate with vocational placement efforts). A petitioner’s “unreasonable delay” in choosing to undergo surgery prescribed by his or her treating physician can result in the denial of TTD benefits. Walker v. Industrial Comm’n, 345 Ill. App. 3d 1084, 804 N.E.2d 135, 281 Ill. Dec. 509 (4th Dist. 2004).

e) Terminating TTD Where the Employee Violates Rules Set Forth in a Collective Bargaining Agreement or Policy Handbook

Interstate Scaffolding involved what might be termed a “tenuous” termination – one in which there was not a violation of a clearly defined work rule. Had the employee violated a clearly defined work rule applying to all employees, such as a rule prohibiting employee drug use or

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one imposed through a union agreement, it is possible that the Illinois Supreme Court might have addressed the issue differently. We expect efforts to try to distinguish Interstate Scaffolding when violations of well-defined rules results in termination of employment, and employers then attempt to cut off TTD benefits. II. RECURRING TTD PATTERNS

A. Petitioner Was Off Work and Had Not Yet Returned to Work Prior to the Economic Layoff

In this situation, the petitioner may be owed TTD benefits regardless of the economic layoff because the petitioner’s inability to work is due solely to the injury. From a defense standpoint, our strategy should be to get an opinion that the petitioner is at MMI, either from the treating doctor or through a section 12 IME. We also want to show that the petitioner had no restrictions or can return to his/her usual and customary line of employment. If we can show this, then no TTD benefits will be due and owing. However, we may be required to offer vocational rehabilitation and maintenance benefits during the petitioner’s vocational rehabilitation. If we are required to offer vocational rehabilitation, the goal is to get the petitioner back to work in his/her usual and customary line of employment or get him/her back to work earning at or near the prior earnings in their usual and customary line of employment.

B. Petitioner Returned to Work with Restrictions (Perhaps Light Duty) and the Employer Accommodated the Restrictions at a Lower Wage Rate, and the Petitioner Is Laid Off

It can be argued the petitioner is only entitled to temporary partial disability benefits. The petitioner returned to work and was paid for that work, albeit at a lower wage. The section 8(a) TPD benefit paid represents the inability to work at the former level. If that individual is let go because of an economic layoff, the employer may only have to continue to pay the TPD benefit and not the full TTD rate. The petitioner, to the extent he/she was able to work, was in the same position as the other non-injured workers. See, Gonzalez v. ITT Industries, 07 IL.W.C. 16303, 09 I.W.C.C. 1182, 2009 WL 5067488 (Nov. 9, 2009, Indust. Comm.).

C. The Petitioner Returns to Work with Restrictions to His Former Job, Was Not at MMI, the Employer Accommodated the Restrictions with No Wage Loss, and the Petitioner Is Laid Off

A strong argument can be made for terminating all TTD benefits. Our defense should be to show that the petitioner’s restrictions did not interfere with his job duties. This will require testimony from the employer that the employee did return to his usual and customary line of employment. We should argue that the petitioner was able to perform his usual and customary line of employment. We should again attempt to obtain an opinion that the petitioner is at MMI.

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We should also introduce evidence through the employer that all employees, even those performing the petitioner’s old job, were laid off. We want to be able to show that the economy was the sole reason for the petitioner’s layoff and not the petitioner’s injury.

D. Petitioner Returned to Work with Restrictions, Was Not at MMI, and Was Able to Perform His Former Job Because the Restrictions Do Not Interfere with Job Performance

The defense in this situation should be raised that the petitioner is in no different position than the other non-injured employees who were also let go and is therefore not owed TTD. We again should obtain testimony from the employer that the petitioner was able to perform his usual and customary line of employment despite having the restrictions. We should also attempt to obtain an opinion that the petitioner is at MMI.

E. Petitioner Is at MMI without Restrictions, Returns to Former Employment, Then Laid Off

In this situation, no TTD benefits are due and owing because it is clear that the sole reason for the petitioner’s layoff was the economy. The petitioner’s attorney will more than likely send the petitioner back to the doctor to get a note indicating the petitioner could not return to his former job or is not at MMI. If this does happen, we would need to dispute this with an opinion that the petitioner is at MMI and can return to work without restrictions.

F. Petitioner Is at MMI with Restrictions, Returns to Former Employment, but No Accommodation is Necessary, and Is Then Laid Off

No TTD benefits are due and owing in this situation because petitioner is at MMI. We must again prove that the petitioner is able to perform his usual and customary line of employment even with the restrictions. We should also argue that the petitioner is not entitled to maintenance or vocational rehabilitation because he/she was able to return to his/her former employment with no accommodation.

G. Petitioner Is at MMI with Restrictions, Restrictions Interfere with Regular Job Duties, Employer Accommodated the Restrictions, and Then Petitioner Is Laid Off

Since the petitioner is at MMI, no TTD benefits are due and owing. However, since the restrictions interfere with the petitioner’s regular job duties, it is possible that we would be responsible for vocational rehabilitation and maintenance benefits. If this is the case, the key will be to get the petitioner back to work at or near their prior earnings in order to avoid a section 8(d)1 wage differential. The employer will also want to show that the petitioner was able to perform his/her usual and customary line of employment.

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H. Petitioner Is at MMI with Restrictions, Is Laid Off, then Obtains Same Employment Elsewhere at a Lower Wage

In this situation, the petitioner will likely push for a section 8(d)1 wage differential. Our defense should be that the petitioner has returned to work in his usual and customary line of employment even with his restrictions, so even if the petitioner is earning less, he is unable to prove that he is entitled to a section 8(d)1 wage differential. We will want to develop as broad of a definition of the petitioner’s usual and customary line of employment as possible to include his current employment.

I. Petitioner Is Not at MMI, Obtains Employment Elsewhere After Being Laid Off, Subsequent Employer Accommodates Restrictions at a Lower Wage

Petitioner will argue that she is entitled to temporary partial disability benefits since she is still on light duty. We will want to show that the petitioner is at MMI, and her condition has stabilized to avoid temporary partial disability benefits. We will also want to show that the petitioner’s current job falls within her usual and customary line of employment to avoid a section 8(d)1 wage differential. We may also want to wait it out and see if the petitioner’s wages increase in order to reduce a potential wage differential.

J. Petitioner Is Not at MMI Because She Delays in Arranging Future Surgery/Treatment, Is Working Light Duty at the Same or Reduced Rate, and Is Then Laid Off

In this situation, a strong argument can be made to deny TTD or temporary partial disability benefits. According to section 19(d) of the Act, if a petitioner refuses to submit to medical, surgical, or hospital treatment as is reasonably essential to promote recovery, the Commission may reduce or suspend the compensation of any such injured employee. We should therefore argue that the petitioner’s failure to continue with treatment is the reason she is not at MMI and is not able to return to her former line of employment. See, Walker v. Industrial Comm’n, 345 Ill. App. 3d 1084, 804 N.E.2d 135, 281 Ill. Dec. 509 (4th Dist. 2004).

K. Petitioner Not at MMI, Offered Modified-Duty Work and Refuses, and Is Then Laid Off

No TTD benefits should be due and owing since the petitioner refused to accept a bona fide job offer. The Appellate Court has made clear that if a petitioner does not take a bona fide job offer, benefits will be denied. City of Springfield v. Industrial Comm’n, 216 Ill. App. 3d 1027, 576 N.E.2d 568, 159 Ill. Dec. 899 (4th Dist. 1991). If the petitioner does not accept a bona fide job offer, TTD benefits should be terminated if the employer is going to accommodate the petitioner’s modified-duty restrictions.

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III. LIMITING TTD EXPOSURE DURING LAYOFFS

It should be argued that an employee should not receive TTD benefits (or even wage differential benefits) where the cause of his inability to work is due solely to the economic conditions and not due in any way to his restrictions or inability to find work. The defense should be raised that the petitioner’s medical restrictions are not the reason why the petitioner is not currently working. Additionally, it should be argued that the petitioner is not currently temporarily and totally restricted from work. If the injured worker would not be hired regardless of his physical condition, but rather due to economic conditions, the worker should not be able to receive TTD benefits. It is important to note that if the petitioner’s disability does not impair their ability to find other work, then petitioner is in no worse position than their coworkers who were also laid off for economic reasons. By focusing on whether the petitioner is in the same position as their coworkers who were laid off, this might let us skirt the idea that a petitioner’s ability to look for work is not a factor in the TTD analysis. In the end, if a petitioner cannot find work because economic conditions are tight, then the ultimate burden will default to the employer, and the employer will be required to find work or show that work is available in the same manner as one does in a permanent total disability situation. This might fit into the argument that there must be a showing, regardless of whose burden, that the inability to work results from the disability. The approach to these claims should also be to aggressively pursue a section 12 IME (and perhaps a Functional Capacity Assessment) with the goal of minimizing the petitioner’s restrictions and to actively seek to find them alternative employment. The defense of these claims will be fact oriented and will require that (a) the restrictions are not as severe as claimed, and (b) the restrictions did not interfere with performance of petitioner’s former job, and therefore the petitioner is not temporarily and “totally” disabled. IV. ADDITIONAL TTD ISSUES

A. TTD and Illegal Aliens

The Illinois Workers’ Compensation Act expressly includes aliens in its definition of employee. However, it is unclear whether individuals who are in the United States “illegally” are entitled to benefits under the Act. In a recent case, when a petitioner was unable to return to work in a light-duty capacity solely due to her illegal immigration status, no TTD benefits were owed by the employer. Gomez v. Illinois Sportservice, 03 IL.W.C. 19746, 07 I.W.C.C. 0798, 2007 WL 2152828 (2007). In Gomez, after a work-related injury in July of 2003, the petitioner was restricted to sedentary, then light duty. The employer could not accommodate the restriction and paid the petitioner TTD benefits. When the employer found out that the petitioner had used a false Social Security number at the time of hire, it suspended TTD benefits. At arbitration, the employee’s human

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resource manager testified that the employer could accommodate the light-duty restriction but refused to offer the work because it learned that petitioner was not a U.S. citizen. The arbitrator found that the petitioner could not return to work “solely due to her illegal immigration status” and denied further TTD benefits. The arbitrator did order the employer to pay petitioner’s reasonable and necessary medical expenses. On review, the Commission affirmed the arbitrator’s decision. In Miezio v. Z-Wawel Construction, 00 I.I.C. 0341, 98 IL.W.C. 16088, 2000 WL 33418770 (2000), the petitioner was released to work with restrictions following a work-related injury, but the employer could not accommodate the restrictions. The employer instituted vocational rehabilitation benefits and paid the petitioner TTD until it discovered that the petitioner was not a U.S. citizen. At arbitration, the arbitrator found that the petitioner was not entitled to further TTD benefits because the petitioner was unable to work solely due to his citizenship status. On review, the Commission upheld the decision to deny further TTD benefits. However, the arbitrator found, and the Commission agreed, that the petitioner was entitled to a percentage of loss of the person-as-a-whole. The Commission found that the petitioner was not entitled to wage differential or permanent total disability benefits in part because he was not legally able to return to work in his preinjury capacity. The Commission found it unnecessary to decide whether his citizenship status alone precluded a wage-differential award. TTD benefits may be awarded to undocumented aliens in Illinois. An award of such benefits has been held not to be preempted by federal immigration law. See, Economy Packing Co. v. Illinois Workers’ Compensation Comm’n, 387 Ill. App. 3d 283, 901 N.E.2d 915, 327 Ill. Dec. 182 (1st Dist. 2008).

B. TTD and Failure to Attend IME

If an employer complies with the requirements of section 12 in arranging an IME, a petitioner must attend the scheduled examination. The employer must pay the appropriate travel expenses prior to the scheduled examination and must also schedule the exam at a reasonably convenient time and place. Refusal to attend the exam does allow the employer the right to suspend the payment of temporary total disability benefits. However, those benefits will need to be reinstated once the petitioner does attend the examination. It must also be clear that the petitioner refused to attend an exam. The petitioner will no doubt claim that he/she was unable to attend the exam because he/she could not obtain travel or because of some other issue. The employer should argue that the petitioner simply refused to attend the IME in order for the employee to suspend temporary total disability benefits. See, Anders v. Industrial Comm’n, 332 Ill. App. 3d 501, 773 N.E.2d 746, 266 Ill. Dec. 11 (4th Dist. 2002).

C. TTD and Unemployment Compensation

In Illinois, a petitioner can collect both temporary total disability benefits and unemployment compensation at the same time. The Illinois Supreme Court addressed this issue in Crow’s Hybrid Corn Co. v. Industrial Comm’n, 72 Ill. 2d 168, 380 N.E.2d 777, 20 Ill. Dec. 568 (1978). In Crow’s

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Hybrid Corn, the Supreme Court held that the unemployment compensation statute and the workers’ compensation statute were not mutually exclusive and that the receipt of temporary total disability is not inconsistent with the receipt of unemployment benefits for the same period. The court also noted that the unemployment compensation statute states a petitioner is not eligible for unemployment compensation or should receive reduced benefits if the petitioner is receiving remuneration under the workers’ compensation statute and states that once disability benefits are received, either the unemployment compensation should be reduced or the unemployment compensation fund should be reimbursed. To give the employer credit for the unemployment compensation payments suggests the unemployment compensation fund should be liable for that period of disability for which the petitioner receives unemployment benefits, but is the disability attributable to his employment? The Illinois Workers’ Compensation Commission came to a different conclusion. In Herrera v. Cabrini Retreat Center, Inc., 06 IL.W.C. 5742, 08 I.W.C.C. 0317, 2008 WL 1794742 (2008), the Commission held that the respondent was eligible for an offset of unemployment compensation earnings against temporary total disability benefits pursuant to section 8(j) of the Workers’ Compensation Act. Section 8(j) of the Act contains broader language concerning credits due the employer than that of the unemployment compensation statute and does not specifically address when a petitioner receives unemployment compensation. Why the Commission chose to give a credit to the employer for unemployment benefits rather than the unemployment compensation fund a credit for the TTD payments is not clear. Until the courts in Illinois consider both statutes and decide how they should interact with each other, employers should always seek a credit for the amounts of unemployment compensation received by the petitioner.

D. TTD and Incarceration

The issue of whether or not TTD benefits should be suspended due to incarceration has not been directly addressed in Illinois. In a recent Commission decision, Mills v. AAA Chicago Cartage, Inc., 03 IL.W.C. 023408, 08 I.W.C.C. 0079, 2008 WL 458718 (2008), the petitioner agreed not to collect TTD benefits during the period in which he was incarcerated due to a violation of his probation. The Commission found that the employer was entitled to a credit for the benefits it paid to the petitioner during that time frame. However, neither the arbitrator nor the Commission elaborated as to why this was agreed upon and whether this creates any implications for future scenarios. It should be argued that the petitioner is unable to work due to his/her affirmative act of breaking the law or committing a crime, and therefore TTD benefits can be suspended.

E. TTD and Retirement

If the petitioner was receiving TTD benefits and retires, in order to terminate TTD benefits, the key will be to show that the petitioner could have worked but chose not to when the petitioner retired. In City of Granite City v. Industrial Comm’n, 279 Ill. App. 3d 1087, 666 N.E.2d 827, 217 Ill. Dec. 158 (5th Dist. 1996), the petitioner suffered a knee injury while working as a police officer. Following surgery, the petitioner returned to a light-duty position. He worked intermittently for

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several months until he took disability retirement. The petitioner sought TTD benefits following his retirement. The Illinois Workers’ Compensation Commission denied this request, finding that the petitioner voluntarily left his light-duty job and removed himself from the work force in order to collect a pension. The Appellate Court affirmed the Commission’s decision and noted that the petitioner did not present any evidence demonstrating that his injury had not stabilized, that he had not been released for light-duty work, or that he could not perform light-duty work. However, in Land and Lakes Co. v. Industrial Comm’n, 359 Ill. App. 3d 582, 834 N.E.2d 583, 296 Ill. Dec. 26 (2d Dist. 2005), the Appellate Court noted that there was competent evidence that the petitioner was unable to work and that he retired not by choice but because he needed income. The court distinguished Land and Lakes based on the fact that the petitioner in Land and Lakes could have worked, but instead chose not to work. In order to terminate TTD benefits when the petitioner retires, it must be shown that the petitioner could have worked in some capacity but chose not to when the petitioner retired.

F. Occasional Wages and TTD Liability

The earning of occasional wages does not necessarily preclude temporary total disability benefits. When a petitioner’s medical condition has not stabilized and treatment continues, work as a bus driver for a different employer averaging 3 hours per day, 10 to 15 hours per week, was held to be “occasional” rather than “continuous” work and did not support a denial of TTD. See, Mechanical Devices v. Industrial Comm’n, 344 Ill. App. 3d 752, 800 N.E.2d 819, 279 Ill. Dec. 531 (4th Dist. 2003).

G. TTD Liability and Social Security Benefits

In Schmidgall v. Industrial Comm'n, 268 Ill. App. 3d 845, 644 N.E.2d 1206, 206 Ill. Dec. 153 (4th Dist. 1994), discussed with approval in the Interstate Scaffolding decision, the petitioner had not been released by his physicians to return to work and had elected to receive Social Security disability benefits. The Commission, however, denied his claim for TTD benefits finding that he had withdrawn himself from the work force since he was receiving Social Security pension benefits. The Appellate Court reversed the Commission’s decision, noting that the petitioner was not receiving Social Security benefits because he had left the work force, but rather because he had not been released by his doctor and was not physically capable of working at that time. Applying this analysis more generally, it appears that when an employee has not yet reached MMI and a physician has not released a petitioner to return to work with temporary restrictions, the employee is entitled to TTD benefits. Thus, the result in Schmidgall appears consistent with Interstate Scaffolding.

H. TTD and Unsanitary or Injurious Practices

A suspension of benefits pursuant to section 19(d) is appropriate only after a petition has been properly filed by the employer and an order for suspension has been issued by the Commission.

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Evidence did support a finding that the petitioner was actively retarding his medical recovery in Gallego v. Industrial Comm’n, 168 Ill. App. 3d 259, 522 N.E.2d 692, 119 Ill. Dec. 30 (1st Dist. 1988) (finding that the petitioner was binding his hand in a deliberate attempt to impair circulation and prolong recovery).

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Kevin J. Luther - Partner

Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has been in the Rockford office since it opened in 1985. Kevin is currently in charge of the firm's workers' compensation practice group. Kevin concentrates his practice in the areas of workers' compensation, employment law, and employer liability. He supervises the workers' compensation, employment law, and employer liability practice groups in the Rockford office. He has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims. He has also tried numerous liability cases to jury verdict. Kevin has co-authored a book with Bruce Bonds of the firm's Urbana office entitled Illinois Workers' Compensation Law, 2009-2010 Edition, which was recently published by West.* The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. He also is the contributing editor of the Workers' Compensation Report for the Illinois Defense Counsel Quarterly. Kevin is a frequent speaker to industry and legal professional groups. Kevin is a member of the Winnebago County Bar Association in its workers' compensation and trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel (Board of Directors). Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp.,

Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim.

Richard Urbanski v. Deichmueller Construction Co., Defined jurisdictional issue in workers' compensation review.



"Economic Disability and Earning Capacity: A Historical Analysis for Wage Differential Claims," Illinois Defense Counsel Quarterly (2006)

"The Normal Daily Activity Exception to Workers' Compensation Claims," Illinois Defense Counsel Quarterly (2004)

"The Age Discrimination in Employment Act: A Seventh Circuit Perspective," Illinois Defense Counsel Quarterly (1998)

"The Impact of Federal Legislation on the Employer/Employee Relationship in Illinois," Illinois Defense Counsel Quarterly (1996)

"An Overview of Repetitive Trauma Claims," Illinois Bar Journal (1992)

Professional Recognition Martindale-Hubbell AV rated Selected as a Leading Lawyer in Illinois. Only



Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel

(Board of Directors) Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and

Central Districts of Illinois United States Court of Appeals, Seventh Circuit


Law, 1984 Bachelor of Arts-Economics and Mathematics

(Summa Cum Laude), Blackburn University, 1981



H-1

WHEN A SIMPLE CASE TURNS COMPLEX: BACK STRAIN TO WAGE DIFFERENTIAL TO PERMANENT TOTAL DISABILITY TO DEATH FROM UNRELATED CAUSE

Presented and Prepared by: Bruce L. Bonds




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WHEN A SIMPLE CASE TURNS COMPLEX: BACK STRAIN TO WAGE DIFFERENTIAL TO PERMANENT TOTAL DISABILITY

TO DEATH FROM UNRELATED CAUSE

I. INTRODUCTION ........................................................................................................................................... H-3 II. FACTS ............................................................................................................................................................... H-3 III. POST-OPERATIVE COURSE ...................................................................................................................... H-5 IV. STRATEGY ....................................................................................................................................................... H-7 V. FINAL RESOLUTION................................................................................................................................. H-10 VI. POTENTIAL ISSUES AND LESSONS .................................................................................................... H-11

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WHEN A SIMPLE CASE TURNS COMPLEX: BACK STRAIN TO WAGE DIFFERENTIAL TO PERMANENT TOTAL DISABILITY

TO DEATH FROM UNRELATED CAUSE I. INTRODUCTION

In this section, we present a study of an actual case handled by the author which reflects many of the twists and turns a case may take from accident to resolution. At each step we will explore what was done and perhaps what should have been done to minimize the costs of this claim. We will also explore the law as it applies to unusual situations, including where an individual is laid off for economic reasons while on permanent restrictions, whether an individual who could not work for unrelated problems is entitled to TTD while under permanent work restrictions, and whether a claim under the man as a whole provisions of section 8(d)(2) survive the death of the petitioner prior to the entry of an award. II. FACTS

Petitioner was a 59-year-old maintenance supervisor (birth date: September 26, 1947) when he was injured in the course and scope of his employment on January 16, 2007. A high speed door broke and came down on a machine the petitioner was driving, striking him on the head. The petitioner was knocked to the ground but did not lose consciousness. He was taken to the emergency room where x-ray noted an old C6-C7 spinous process fracture in his neck and what appeared to be non-displaced transverse process fractures at L1 and L3. Physical examination was normal to near normal, including full range of motion in the back and neck; however, the petitioner complained of bitter pain even after receiving morphine and was unable to sit up or even attempt to walk. Ultimately, he was released from the emergency room with a diagnosis of blunt trauma, left chest contusion, and left L1 and L3 transverse process fractures non-displaced. The petitioner had an average weekly wage of $1,005.94, a TTD rate of $669.96, and a PPD rate of $603.02. The petitioner had a prior history of workers’ compensation injuries and settlements, including a fusion at L5-S1 in 1982 from which he had experienced ongoing back and right leg pain, but had been able to work prior to the accident of January 16, 2007. In addition, in 2006 he had experienced a work related right shoulder injury.

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1. Based on these facts what investigation should be performed? Answer: Obtain complete medical records of all prior injuries with a focus on the 1982 fusion and the nature of the recovery. Obtain copies of all prior workers’ compensation settlements from the Illinois Workers’ Compensation Commission.

2. What is the case value at this point assuming a good recovery? Answer: Section 8(d)(2) of the Illinois Workers’ Compensation Act sets the minimum for fractured transverse processes at three weeks each. A more probable value would be 5 percent loss of a person as a whole.

The petitioner continued to complain of back pain radiating down both legs, with the right leg being worse than the left, and ultimately underwent an MRI scan on February 23, 2007. The MRI scan revealed:

1. Mild central spinal stenosis at L5-S1;

2. Non-displaced healing transverse process fractures.

Following the MRI scan the petitioner was seen by an orthopedic surgeon who felt the spinal stenosis at L4-L5 was significant and recommended surgery in the form of a laminotomy at L3-L4 (where there was only slight narrowing) and L4-L5 (where the orthopedist opined that the canal was only one-third of its normal size, notwithstanding that the MRI findings indicated that this was only “a mild” finding. The petitioner’s complaints of leg pain radiating down the outside of his thigh and the outside of his calf around to the front of his leg were considered consistent with the L5 distribution (L4-L5). The treating doctor noted he wanted to make sure he did not perform a surgery on the petitioner that made the scans look better without helping the petitioner’s symptoms.

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1. What is the significance of the finding of mild “central” spinal stenosis? 2. What, if any, evidence is there that the surgical problem is causally

related to the accident of January 16, 2007? 3. How might the employer/respondent respond to this surgical request? Answer: Section 12 IME with respect to the issues of causation as well as reasonableness and necessity of surgery. Utilization review pursuant to section 8.7 to address the reasonableness and necessity of the surgery given the relatively minimal findings and the presence of significant pre-existing spinal stenosis.

On March 20, 2007, the petitioner underwent surgery in the form of a laminotomy at L3-L4 and L4-L5 for an admission diagnosis of “lumbar stenosis.”

Assuming a full recovery, what is the value of the case at this point? Answer: Approximately 25 percent loss of use of a person as a whole pursuant to section 8(d)(2).

III. POST-OPERATIVE COURSE

Post-operatively the petitioner continued to complain of pain radiating to his legs, as well as depression. A post-operative MRI scan of his lumbar spine in May 2007 showed that the lumbar spine was “now nicely opened.” It appears surgery did make the scans look better without relieving the petitioner’s symptoms. On June 11, 2007, he was released to return to work by his occupational medicine doctor with a 20-pound lifting restriction. He was to start working two hours per day for three weeks and build up until he was working full time. Shortly after “returning to work” the petitioner sought treatment from a psychiatrist for depression and post-traumatic stress disorder and asked to be taken off work. The doctors, however, indicated that he should continue to work as previously outlined. The petitioner underwent an independent medical evaluation on June 13, 2007 with an orthopedic surgeon due to his slow progress. Of interest, the petitioner gave a history that

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subsequent to the 1982 lumbosacral fusion, he had constant low back pain running down his right lower extremity and that he estimated that surgery provided him with only 50 percent improvement. He acknowledged he continued to have constant low back and leg pain but was able to work and was not on medication. He claimed the problem was significantly exacerbated by the January 16, 2007 work accident. Although there were objective findings, significant symptom magnification was detected. Specifically, there was an inconsistent response to straight leg raising between the sitting and supine positions, the presence of pain on simulated trunk rotation, and it was noted that the amount of quadriceps weakness demonstrated on manual testing was physiologically inconsistent with the petitioner’s ability to walk normally. On August 21, 2007, the petitioner returned to his occupational medicine doctor, complaining of continued low back pain radiating down his right leg. Nonetheless, his restrictions were increased to 25 to 30 pounds lifting. The petitioner was found to be at maximum medical improvement by his treating doctor on September 25, 2007, given a permanent lifting restriction of 25 to 30 pounds. No offer was made at that time as this particular carrier has a policy of soliciting a demand prior to extending an offer. On October 31, 2007, the petitioner’s plant closed as his company was going out of business and he was laid off for economic reasons. He remained on restrictions of no lifting greater than 25 to 30 pounds.

Is petitioner entitled temporary total disability when working with permanent restrictions at the time his employer goes out of business for economic reasons? Answer: Probably. There is a line of decisions holding that the focus should be on the employee’s restrictions and inability to perform his or her usual employment, not the economic related layoff (Ford Motor Co. v. Industrial Comm’n, 126 Ill. App. 3d 739, 467 N.E.2d 1018, 81 Ill. Dec. 896 (1st Dist. 1984); National Lock Co. v. Industrial Comm’n, 166 Ill. App. 3d 160, 519 N.E.2d 1172, 117 Ill. Dec. 5 (2d Dist. 1988)). A recent decision, however, suggests that petitioner may need to show a failed job search in order to continue to receive TTD under these circumstances (Residential Carpentry, Inc. v. Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 975, 910 N.E.2d 109, 331 Ill. Dec. 36 (3d Dist. 2009).

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What is the case value at this point?

_________________________________________________________________________________________

_________________________________________________________________________________________

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On October 15, 2007, the petitioner completed a two-day functional capacity evaluation. It concluded that the petitioner was fully cooperative but would be limited to a “sedentary” position. Subsequent to the FCE, the petitioner followed-up with his occupational medicine doctor, who after reviewing the FCE placed permanent restrictions of 20 pound lifting occasionally, 15 pound lifting frequently, which he thought would be in the “light” category. The petitioner was told to follow-up prn. Again, the carrier did not extend an offer but a demand was solicited. In November 2007, the petitioner who is now 60 years old, applied for social security disability. On January 7, 2008, the petitioner’s counsel indicated the petitioner was, in their opinion, permanently and totally disabled, and extended a demand of $440,000.00 cash plus a Medicare Set-Aside. Petitioner has a G.E.D. plus a two-year associate’s degree in accounting from a junior college. IV. STRATEGY

1. Verify permanent total disability calculation.

2. Take steps to reduce the claim to a wage differential under section 8(d)(1).

a) A labor market survey was obtained which revealed the petitioner, who had previously earned approximately $25.00 per hour, could earn in the $10.00 to $12.00 per hour range.

b) A rated age was sought from reputable insurance companies and revealed that although he was age 60 chronologically, physiologically the petitioner’s rated age would be between 62 and 68.

c) The next step is to calculate the costs in purchasing a rated age annuity that would pay the petitioner weekly benefits based on the assumption that he could find a job for both $10.00 and $12.00 per hour for the duration of the disability.

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What is the duration of disability under Illinois workers’ compensation law? Answer: “Life” not “work life.”

Why are we using a rated life annuity?

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After completing the labor market survey, obtaining a rated age, and pricing the value of the potential wage differential based on a rated age life expectancy, the lump sum value of the claim was determined to be between $200,000.00 and $230,000.00. A MSA was priced and came back at $54,000.00. Subsequent to completing the above, in March 2008 authority was requested from the carrier based on the above calculation. Unfortunately, due to the value of the case and the organization of this particular carrier, authority was not rapidly obtained. In June 2008, a new adjuster was assigned to this case, and in October 2008 yet another new adjuster was assigned to this case. On October 20, 2008, the carrier’s home office asked if we would be entitled to take a credit from the prior man as a whole settlement from the 1982 back fusion.

Under the Illinois Workers’ Compensation Act, is a credit available for a prior man as a whole settlement under section 8(d)? Answer: No. The credit is available for prior settlements based on loss of use of a scheduled body part pursuant to section 8(e)(17). A credit is not available as to prior person as a whole settlements under section 8(d)(2) (Page Enterprises, Inc. v. Industrial Comm’n, 78 Ill. 2d 287, 399 N.E.2d 1312, 35 Ill. Dec. 784 (1980); Consolidated Freightways v. Industrial Comm’n, 237 Ill. App. 3d 549, 604 N.E.2d 962, 178 Ill. Dec. 439 (3d Dist. 1992)).

In November 2008, the petitioner’s condition deteriorated (according to him) and he commenced treatment for chronic pain and increased weakness. He was prescribed various pain medicines, ultimately including morphine. Later in October 2008, total authority was extended of

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$284,200.00 and an offer was extended at $190,000.00 plus the $54,000.00 MSA, for a total of $244,000.00. The petitioner’s counsel countered in December 2008 at a flat $400,000.00 plus the MSA. Although additional settlement authority was available, it was decided at that point to proceed with vocational rehabilitation, since the petitioner had a G.E.D. and a two-year associate’s degree in accounting. In addition, an independent medical evaluation was ordered to verify the current condition. The examining doctor concluded the petitioner should be able to work with a lifting limit of up to 25 pounds but indicated that based on his significant chronic and ongoing pain, he would not be able to work at any capacity until he was off all pain medicine. There were findings of symptom magnification, including discrepancies in straight leg raising tests when supine versus sitting, as well as the absence of muscle atrophy in the right leg (symptomatically), which one would expect if the radiating pain was significant. The petitioner’s position in early February 2009 was that if the case could not be settled for $400,000.00, they would seek an award of permanent total disability at the time of arbitration. There was, however, a suggestion that they might settle the case for $300,000.00 if it was rapidly forthcoming. No counter offer was extended as the carrier wished to proceed with vocational rehabilitation. During the Spring and Summer of 2009, the petitioner’s condition continued to deteriorate. He was not able to fully cooperate with the vocational consultant because he was on morphine to control his pain. He also restarted his psychiatric treatment for chronic depression and at one point threatened to harm both his attorney and counsel for the respondent. By the early Summer of 2009 he had requested a motorized wheelchair as he was no longer able to ambulate. An unrelated matter, no doubt affecting his mental status, was the death of his three-year-old granddaughter in early August 2009 from spinal meningitis. In September 2009, an updated MSA was sought and the value, as expected, had increased from $54,000.00 to $76,407.00, primarily because of the increase in expected future pharmacy costs. After a fair amount of back and forth negotiations with significant input and activity by an annuity specialist, the case was settled in October 2009 for $290,000.00 ($160,000.00 cash and $130,000.00 structured) plus $76,407.00 for the Medicare Set-Aside. After the agreement had been reached but before the contracts had been approved, the petitioner was diagnosed with metastatic terminal cancer. Medical records revealed a tumor had been detected as long as 18 inches and as wide as five inches, running upward from his testicles. He was given less than six months to live.

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If the petitioner died from unrelated causes prior to the settlement, would his claim survive? Answer: Probably yes. Awards based on a percentage loss of use of a person as a whole under section 8(d)(2) survive an employee’s death when the death is unrelated to the accidental injury and shall be paid to the beneficiaries of the deceased employee as provided in section 7(g). This applies even if there was no award at the time of death (Electro-Motive Div. v. Industrial Comm’n, 250 Ill. App. 3d 432, 621 N.E.2d 145, 190 Ill. Dec. 276 (1st Dist. 1993). The claim shall proceed as if the death had not occurred and the award shall be distributed to the dependents of the deceased petitioner (Freeman United Coal Mining Co. v. Industrial Comm’n, 386 Ill. App. 3d 779, 901 N.E.2d 906, 327 Ill. Dec. 173 (4th Dist. 2008)).

The petitioner’s position was the settlement was done and we should proceed with the approval as soon as possible. Our position was that no settlement is final until the arbitrator has stamped his or her approval and that this information changed the value of the case.

1. How would the petitioner’s diagnosis of a terminal disease affect the value of the case?

2. Is an employee who has permanent restrictions which the employer

cannot accommodate entitled to temporary total disability benefits where they are also unable to work as a result of unrelated health conditions (e.g.; cancer, Parkinson’s)?

3. Would it change the petitioner’s entitlement to temporary total

disability benefits if the employer could have accommodated the restrictions but the petitioner was not working due to the unrelated health conditions?

V. FINAL RESOLUTION

An offer of $200,000.00 was extended as even if the petitioner lived only six months, no doubt the case could be arbitrated in that time frame. The case was ultimately settled for $235,000.00 cash.

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VI. POTENTIAL ISSUES AND LESSONS

1. Serious consideration could have been given as to whether the petitioner’s deteriorating condition and chronic pain during the prior 12 months was related to the metastatic cancer as opposed to his chronic low back pain. No doubt that would have required another IME.

2. Claims of this sort do not get better with age. Note this individual was paid TTD at almost $670.00 per week from August 2008 until the Spring 2010. For many months these payments were made while the carrier was endeavoring to obtain appropriate authority. During that time frame, not only were the payments made, additional medical was incurred, and the petitioner’s condition deteriorated. Often it makes sense to pay a little bit more upfront and get the case closed, rather than run the risk of the case value exploding.

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Bruce L. Bonds - Partner

Bruce is the immediate past Chair of our state-wide workers' compensation practice group and has spent his entire legal career with Heyl Royster beginning in 1982 in the Peoria office. He concentrates his expertise in the area of workers' compensation, third-party defense of employers, and employment law. He served as a technical advisor to the combined employers group in the negotiations which culminated in the 2005 revisions to the Illinois Workers' Compensation Act.

Bruce was recently appointed by Amy Masters, Acting Chairman of the Illinois Workers' Compensation Commission, to a committee of attorneys who will be reviewing and making recommendations for revisions to the rules governing practice before the Illinois Workers' Compensation Commission.

With extensive experience before the Illinois Workers' Compensation Commission, Bruce has defended employers in thousands of cases during the course of his career. As a result of his experience and success, his services are sought by self-insureds, insurance carriers, and TPAs.

Bruce is an adjunct professor of law at the University of Illinois College of Law where he has taught workers' compensation law to upper-level students since 1998.

Bruce has co-authored a book with Kevin Luther of the firm's Rockford office entitled Illinois Workers' Compensation Law, 2009-2010 Edition, which was recently published by West.* The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois.

Bruce is a frequent speaker on workers' compensation issues at bar association and industry-sponsored seminars.

Bruce has served as Vice-Chair of the ABA Committee on Employment, Chair of the Illinois State Bar Association Section Council on Workers' Compensation, and currently serves on the Employment Law Committee of the Chicagoland Chamber of Commerce and the Illinois Chamber of Commerce Workers' Compensation Committee. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Record; another survey published recently by Chicago Lawyer Magazine named Bruce one of the "Best Lawyers in Illinois" for 2008.



Public Speaking “The 2005 Amendments, 3 Years Later: The

Respondent” SafeWorks 16th Annual Work Injury Conference 2008

“Update on the Illinois Workers’ Compensation Act and Medical Fee Schedule” Illinois-Iowa Safety Council Annual Convention 2008

“Impact of the New Medical Fee Schedule” SafeWorks 14th Annual Work Injury Conference 2006

“Penalties, Penalties and More Penalties, The Changes to Section 19 and Strategies for Minimizing Penalties Exposure” CCMSI 2008




Professional Associations American Bar Association (Past Vice-Chair of

Employment Law Committee) Illinois State Bar Association (Past Chair

Workers' Compensation Law Section Council) Champaign County Bar Association Illinois Association of Defense Trial Counsel

(Member, Workers' Compensation Committee) Defense Research Institute Illinois Self-Insurers Association




Law, 1982 Bachelor of Arts-Finance, University of Illinois,

1979



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REPETITIVE TRAUMA DEFENSE STRATEGIES: ARM YOURSELF FOR BATTLE

Presented and Prepared by: Toney J. Tomaso




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I. INVESTIGATION: IS IT TRULY A REPETITIVE TRAUMA JOB? .......................................................... I-3

A. Interview the Employee’s Supervisor ...................................................................................... I-3

B. Interview the Employee’s Co-Workers ................................................................................... I-4

C. Conduct a Site Visit and Observe the Job(s) the Employee Performs ....................................................................................................................... I-5

D. Review and Analyze the Job Description(s) Provided By Employer .................................................................................................................. I-5

E. Review and Analyze Job Description Video ......................................................................... I-6

F. Do You Need to Get an Expert Involved? ............................................................................. I-7

G. Review Employee’s Prior Records ............................................................................................ I-9 II. TRIAL PREPARATION: REAPING THE REWARDS

FROM YOUR THOROUGH INVESTIGATION ......................................................................................I-11 III. CONCLUSION ...............................................................................................................................................I-12

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I. INVESTIGATION: IS IT TRULY A REPETITIVE TRAUMA JOB?

The first question which needs to be asked is whether the accident was actually caused by a repetitive trauma position. If the employee is alleging injury as a result of repetitive workplace activities, we first must establish whether those duties were sufficiently repetitive to cause an injury. This is the primary focus of the initial investigation which will then lead us to further inquiry as to whether the employee has established sufficient evidence to establish a repetitive trauma type position which is causally related to the current symptoms the employee is suffering from.

A. Interview the Employee’s Supervisor

It is a tenet of good investigation, as well as good lawyering, that a team works better than an individual in accomplishing certain goals. It is imperative to identify your team and utilize all resources at your disposal in order to accomplish your goal. The obvious goal is to defend a potential workers’ compensation claim against the employee. Assisting you in this endeavor must be the employee’s supervisor/manager. You need to identify who this individual is (or in some cases there may be multiple individuals). You want to focus on this supervisor’s firsthand knowledge and access to the actual employee. There are certain situations where the employee’s supervisor is one who is in an office all day, off-site, and only observes the employee working every other week for a five to ten minute time span. This supervisor is not going to be very helpful in pursuing your investigation and determining whether you can establish an accident defense. You need to identify who can provide firsthand information regarding what the employee specifically does, the frequency of those activities, the weights involved with those activities, the various duties which make up the employee’s job, and the various locations and machines they may utilize in order to accomplish their duties. You must identify that individual in order to get the best information possible before deciding whether you have a viable accident defense, and therefore the means to dispute the claim. Once you identify the individual who will best shed light on this subject matter your focus needs to turn to what the employee’s specific duties entailed. Make sure you ask the right questions in order to get a clear understanding of what the employee was required to do each day. If that means taking a recorded statement or having them write down the information for you then make that request. The employee may do many different jobs and wear several different “hats” during his employment with the employer. If the injured employee is alleging an accident date from March 1, 2010, then you want to focus on the employee’s repetitive activities from March 1, 2010, and back in time for anywhere between three to six months. Because the

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employee is alleging repetitive activities your analysis should not simply be what the employee was doing on March 1, 2010. Rather, it should be focused on what has the employee been doing for the past three to six months or even longer if those activities have been consistent on behalf of his employer. What you want to be able to accomplish is getting a clear understanding of what the employee has been doing for the past three to six months. Obtaining detailed information will assist you in potentially winning this battle. If you can establish there is a genuine question of fact as to whether the employee was working a position for his employer which was repetitive in nature, then you are well on your way to establishing a significant defense which can be utilized later.

B. Interview the Employee’s Co-Workers

If the employee who has alleged a repetitive trauma injury last worked for the employer within a recent time sequence, then it stands to reason a great many individuals who worked alongside the employee, and possibly did the exact same duties as the employee, will still be present at the worksite and be available to discuss the facts surrounding this claim. It is prudent and many times worthwhile to work through the employee’s supervisor in order to identify who these individuals are, and take the time to interview them first by phone, and then if necessary in person. These fellow employees will also be able to shed light on the subject matter of the nature of the employee’s duties over the past three to six months. These are the individuals who can lay a proper foundation that they did the same activities the employee did during the time sequence. This is germane to the discussion regarding whether the employee’s alleged injuries are related to an actual repetitive trauma position with the employer. Explain to these individuals they have not done anything wrong but you are simply on a fact finding mission in order to shed light on what they do. If you tell these people that they are experts in this field and you are simply asking them to describe what they do, it typically puts them at ease and allows them to open up. Be aware some of these individuals will feel as though they need to “toe the company line” and tell you what they think you want to hear, but you need to do your best in order to get the truth versus what this fellow employee thinks you want to hear. You can utilize a supervisor or manager to remind the fellow employee that when they do speak with you they should be open and honest and simply tell the truth. Oftentimes co-workers will share information about the injured employee which you were not aware of to begin with (such as activities outside the workplace) and provide you with further avenues to explore for investigative purposes. They will also oftentimes provide great insight into how an employee does the job required in a simple and layperson approach which may be more helpful than a job description. What you need to accomplish, initially by phone and later through a site visit (see below), is to get a clear mental picture of what takes place in the area or areas where the injured employee works, so that ultimately you can explain it to an attorney and if necessary this information will then help an attorney explain it to an arbitrator.

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C. Conduct a Site Visit and Observe the Job(s) the Employee Performs

After you have had the opportunity to initially interview the employee’s supervisor and co-workers it is always advisable to conduct a site visit. Unless you have been to this location before and personally observed the activities and duties of this injured employee, operating the same equipment and utilizing the same materials, it would be recommended to go to the site and learn more about the job activities. Specifically, you must look at those activities performed by the injured employee during the time sequence in question. Take the opportunity to observe other employees performing this job and clearly identify all duties and pieces of equipment used by the injured employee at the time of your visit. This should not be a simple five minute walk through, but spend enough time to observe all facets of the actual duties being performed by the employee. This is where your initial interview questions come into play. If you find out that the job duties differ between the hour the employee was working and the volume of the activities increased during a certain part of the day or depending upon which day of the week it is, it is imperative to visualize and observe these duties in order to lay a foundation for your knowledge as to what the employee was doing at the time of the alleged repetitive trauma injury. It is not always available, but if the actual employee who has alleged the injury has returned to the workplace, take advantage of the opportunity to go in and observe that employee doing those activities which allegedly caused the injury. As they say, a picture is worth a thousand words. Having a picture of the actual employee doing the job for which they were allegedly injured can prove to be very beneficial. As noted above, there is sometimes a gap between what is written in a job description and what is actually observed during a site visit. This also gives you the added benefit of getting to know your client. This is a relationship driven industry and in order to serve the needs of your client it is imperative to know what they do and what takes place on a day-to-day basis at their facility. When the next claim comes in, and it is explained to you that the employee was hurt on the XYZ line while working with the folding bin that produces the hanger clips which will eventually go to the galvanizing line for purposes of shipment, you will know exactly what goes in to that process.

D. Review and Analyze the Job Description(s) Provided By Employer

Although you will be conducting various interviews and site visits so that you can, based upon firsthand knowledge and information, determine what the employee’s job duties consist of, it will also be incumbent upon you to obtain a copy of the job description from the employer. Most employers will have a job description which covers all duties for the employee’s position. You first want to confirm when the job description was made, who created it, and if it needs to be updated. Your focus needs to be on its accuracy. If after your review of the document, and

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comparing same to your prior interview notes, and site visit notes, it appears inadequate and inaccurate, then you will need to have a conversation with the employer in order to have an updated version completed. Many times the job description itself is a document which has been provided from a corporate office out of state which does not accurately reflect what takes place in regard to the employee’s position. Some job descriptions, due to these inaccuracies, may actually hurt your cause and continued defense on the issue of accident. Generally speaking, a job description will be utilized for purposes of exploring your accident and medical causal connection defense. This document can be turned over to medical experts, FCE examiners and other defense experts. Before you provide them with such documentation you want to ensure the foundation for the document is accurate and reliable. It will not do for the injured employee or other witnesses to poke holes in the foundation of this document by explaining to the judge how woefully inadequate and out of date it is. This would lead to the injured employee’s argument that if any of the defense experts relied upon this job description report and this report is lacking in reliability, then it stands to reason the opinions rendered by the defense experts will likewise be unreliable.

E. Review and Analyze Job Description Video

CASE SAMPLE: Gill Athletics case where after a site visit it appeared the duties being performed were very light and would not necessarily lead to carpal tunnel syndrome. A video was made, then sent to IME physician, and relied upon by defense expert as the basis why this activity could not cause CTS. Although this is not as common as a job description report, some employers have job description videos which will provide great insight as to what the injured employee does on a day to day basis. We can utilize this video at the time of trial if a proper foundation can be laid. To that end, you must ensure the job description accurately depicts what the injured employee was doing at the time of the alleged injury and beforehand. If the video is out of date or simply shows one aspect of the employee’s duties which only makes up a small percentage of the time of their overall activities, then it may not be a useful tool to use. This is where your thorough investigation and understanding of the job duties comes into play. If, after performing a site visit, a job description video does not exist, and you believe it would be prudent to have one created for defense purposes, then make the request of the employer in order to have that done. An example based upon a recent litigation experience was conducting a site visit, getting a firsthand impression of the actual duties the injured employee was conducting at the time of the alleged repetitive trauma injury, and determining that those specific activities were neither significant nor repetitive in nature. As a result, a video was created by the employer and said video was then provided to the employer’s defense expert (IME physician) who cited the video in his report for the proposition that it was not a repetitive

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trauma task the employee was performing and therefore could not lead to the carpal tunnel syndrome the employee was suffering from at the time of the examination. If such a video is made in order to bolster the employer’s defenses, then you must ensure a proper foundation can be laid regarding the video and the employee cannot argue the video fails to depict with 100% accuracy the job he was performing at the time of the injury in question. Therefore, the video must represent activities between the date of the loss and going backwards in time three to six months. Again, you will need to utilize the expertise of the employee’s supervisor and possibly his co-workers in order to achieve this accuracy and develop a job description video. Some employers will not allow for any type of videotaping taking place within the four walls of their facility. Make sure you explain to the employer, and any corporate representative who needs to give you permission to conduct the videotaping, where this video could be used. A doctor or multiple defense experts may review this video, it may be used at the time of trial, and entered into evidence, and it may be viewed and obtained by the employee and his attorney. The employer cannot take a proprietary interest in this video but rather it will be put into the litigation “stream” so that multiple sources will have access to it. Make sure this is understood so before it is utilized for litigation purposes and placed into evidence, the employer is fully aware of who will have access to it.

F. Do You Need to Get an Expert Involved?

The purpose behind getting an expert involved is to lend specific credence to your opinion that this is not a repetitive trauma job. Believing the job was not repetitive and having a job description report which purports to say the same thing may not be enough to dispute and/or win a case. This is where getting an exercise physiologist or a physical therapist involved in order to do a thorough investigation and analysis of the actual job which the employee was performing at the time of the alleged repetitive trauma is a good idea. This analysis will typically take one to four hours to complete. The evaluator will need to work with a representative from the employer to ensure they are getting a complete picture of what the employee was doing at the time of the alleged repetitive trauma. Again, as noted above, if your evaluator cannot provide a thorough foundation for their opinions, then their ultimate findings can be questioned and determined to be unreliable. They must show everything they reviewed was an accurate portrayal of what the injured employee was doing at the time of the alleged repetitive trauma. If this is not done appropriately then time and money are wasted. Ask the employer to provide the evaluator with accurate productivity logs and/or records to show what the actual employee was doing for the months leading up to the alleged accident date. This will ensure accuracy and reliability for the evaluator’s report. You can then lay the

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proper foundation regarding these productivity logs/records at a later date with the help of an employer representative. You next must decide whether you want the job site evaluator to provide the “ultimate opinion” in his report, or if you simply want the evaluator to state the facts as he observed them during his evaluation. Specifically, do you want this evaluator to comment on whether or not there is a causal relationship between the alleged repetitive trauma/activities and the subsequent symptoms which the employee is allegedly suffering from? Or, do you simply want the evaluator to render an opinion on what the employee was doing and whether, according to national standards, these activities were repetitive in nature? It is also imperative to have the evaluator explain in this report the significant difference between repetitive activities and use of force and grip in conducting these activities. Any expert in this field will tell you it is not enough the employee is conducting repetitive activities. Rather, the employee must also show the activities required forceful gripping and maneuvering of their hands and upper extremities in order to accomplish their workplace duties. Both of these aspects of the equation must be present in order to create a situation where a repetitive trauma injury can come about. You must have both frequency and sufficient force in order to establish the employee’s job could cause a repetitive trauma injury. If your evaluator has not fully explained this in his report, then you must ask for a supplemental report in order to make sure this is perfectly clear. Ensure your evaluator has relied upon national standards in order to lay out his analysis and conclusions. The two standards which are most utilized come from the National Institute for Occupational Safety and Health (NIOSH) and from the United States Department of Labor, Occupational Safety and Health Administration (OSHA). You can utilize the web sites provided by these two agencies in order to assist you in identifying whether or not the employee’s job activities were sufficiently repetitive in nature to be characterized as such by these national institutions. Have a records review done by a qualified physician in order to weigh in on the issue of medical causal connection. Your investigation from the first day, up and through the use of a job site evaluation, will be used in conjunction with a defense of accident in order to show that the employee did not suffer a repetitive trauma injury because that employee’s duties were not repetitive or forceful enough in nature to constitute such an injury. Utilize every aspect of the investigation in order to go on to the second defense, that of medical causal connection, and utilize the services of a records review physician in order to begin laying the groundwork of that defense. Why begin with a records review? Because, if the result of the records review opinion report from the physician hurt the employer’s position and do not support a causal connection defense then you are not required to turn over the records review report. Although it may cost an additional amount of money, it is well worth the price paid in order to avoid getting a detrimental opinion back from the defense expert and then needing to turn it over to your

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attorney because you began with an independent medical examination and not a records review. If the records review comes back positive, then you can take the next step which is an independent medical examination as outlined below. It is imperative that you have established a reliable foundation for any and all materials provided to the records review physician, including the history of the activities the employee was allegedly performing at the time of the repetitive trauma based upon the history given by the employee’s supervisor, co-workers, and the site visit. Likewise, make sure your records review physician has received an accurate job description, and if one has been created, a job description video, and lastly, if one has been completed, a job site evaluation report. All of the tools gathered in your arsenal to create a defense can then be turned over to the defense expert in order to lend credence to their opinions. If necessary, send the employee for an independent medical examination pursuant to 820 ILCS 305/12 at employer’s request. Again, find a qualified physician in the specific area in which you will be seeking an opinion. In most circumstances you will want either an orthopedic surgeon or an occupational medicine specialist. As outlined above, when dealing with the issue of a records review physician, make sure you provide your IME physician with the appropriate foundation by which they can rely upon and issue opinions in the employer’s favor. You will want the records review and IME physician to provide you with the “ultimate opinion” which is on the issue of medical causal connection and whether or not the specific duties the employee complained of could have resulted in a repetitive trauma injury. This physician will be able to lend credence to your accident and medical causal connection defenses. If the doctor can rely upon the foundation of your records, including the job site evaluation, based upon the national standards, then your physician can comment that the duties being performed by the employee were not repetitive enough in nature to cause such an injury, therefore refuting accident and medical causal connection. This is exactly what you want to accomplish, and this is why you have done all of the leg work to create a foundation from which to work and establish your defenses.

G. Review Employee’s Prior Records Another aspect to lend credibility to an accident and medical causal connection defense is to identify and obtain pre-accident medical records in order to flush out the issue of whether or not the employee suffered from a pre-existing condition. If you can show the employee treated at other facilities or at the same facility where he is currently treating, for the same or similar condition from which he current suffers, then it will only add strength to your two defenses. If the employee is alleging a carpal tunnel claim (bilateral), and you can show in the years preceding the alleged repetitive trauma accident date this employee underwent treatment for carpal tunnel syndrome wherein it was objectively proven this condition existed based upon an EMG/NCV test, then make sure this information is obtained and shared with your experts (records review physician and IME physician). Establishing a pre-existing condition can lead to

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additional medical defenses, and if the employee had a prior workers’ compensation claim, we potentially have the ability to seek a credit pursuant to the Illinois Workers’ Compensation Act. You also want to identify within the confines of the pre-accident treatment records as well as the post-accident treatment records whether this employee has a positive medical history for risk factors which could potentially lead to such injuries as carpal tunnel syndrome. Please make yourself aware of the medical literature which stands for the proposition that these risk factors and their presence in a patient increases the likelihood these patients will be diagnosed with certain conditions. Take the example of carpal tunnel syndrome. Most physicians will opine that risk factors include smoking, diabetes, rheumatoid arthritis, thyroid disorders, pregnancy, menopause, obesity, sex, and others. If you can further your investigation and identify pre-accident, as well as post-accident jobs the employee had with other employers besides your client, then it would be best to obtain the employment/personnel records from those various facilities in order to identify what specifically the employee has done, or is currently doing for those different employers. Again, this is another piece of the puzzle which may aid in your continued defense of this case. If you can establish the employee worked at another job wherein his duties were clearly repetitive in nature and required forceful gripping and twisting, then providing that information to your defense experts at the time of trial will help with your overall defense position. If an Application for Adjustment of Claim has yet to be filed with the IWCC, then it may be difficult to get your hands on these materials and records without the ability to issue a subpoena. However, if a claim is not pending before the IWCC, that is where your persuasion skills come into play so as to request these employee/personnel materials from various employers in order to aid you in your continued defenses. You should also look into, investigate and be aware of the employee’s hobbies. As noted above, this is something you can generally learn from interviewing the employee’s supervisor and fellow workers. Most employees will spend time either on the factory floor or in a break room talking about what they like to do in their free time. If you can identify what these activities are some of them may further aid you in your defense on accident and medical causal connection. For example, if you have an employee who enjoys bow hunting, you can establish this is a repetitive activity which requires forceful gripping and grasping which could lead to certain conditions such as carpal tunnel syndrome, lateral epicondylitis, and others. Besides obtaining this information through these sources you may also want to do some computer assisted research on social networking pages (such as Twitter, Facebook and MySpace) in conjunction with surveillance on the employee in order to come up with the information regarding hobbies and extra-curricular activities. These avenues may fail, but when they succeed, these are wonderful tools to have in your arsenal in order to continue with your defense position and to use during the continued fight with the employee.

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II. TRIAL PREPARATION: REAPING THE REWARDS FROM YOUR THOROUGH INVESTIGATION

Following your investigation, you will have an excellent idea of who will serve as a trial witness on behalf of the employer if this matter must go to a full arbitration hearing. You will have already identified who has firsthand knowledge of the employee’s duties, who witnessed the employee perform those duties on a regular, routine basis, and who witnessed the employee perform those duties during the pertinent time sequence in question. You will want to identify both a supervisor and, potentially, a co-employee, who will serve as a witness in this capacity on behalf of the employer. Allow your attorney the opportunity to interview these individuals in order to determine if they will make reasonably good witnesses on behalf of the employer (as opposed to a “nervous Nelly” who will fold like a house of cards at the time of trial when they experience confrontation). You want to ensure these trial witnesses have firsthand knowledge based upon their observation of the employee performing the various duties so that they can withstand any type of cross examination which would question their ability to recall an accurate description of the employee’s workplace duties. These witnesses must be able to describe in detail the specific work duties, the manner in which an individual’s body parts are used in order to complete those duties, and be able to describe all activities performed by the employee at the various locations and machines, or on various pieces of equipment within the plant or facility. They must have an understanding of the duration of these activities by the employee in question. These witnesses must be able to lay a proper foundation and withstand scrutiny. Oftentimes you may not have a witness, who can provide a proper foundation regarding these issues, or your potential witness is unavailable or their “liability” as a witness at the time of trial is so great that you choose not to have them testify on behalf of the employer. Under those circumstances, it would still be important to have them available and be present at the time of trial to serve a prophylactic effect wherein they prevent the employee from lying. If the employer does not have a witness present, it serves as temptation for the employee to begin to fabricate testimony as to what he did, was required to do, or what his duties entailed. If the employee begins to think, while on the stand giving testimony, that his version of events will go unchecked by the employer because no one is present who would know any better, they are more apt to lie. It is incumbent upon you and the attorney to make sure an employer representative is sitting at the arbitration hearing table in order to check the accuracy and foundation of the information being provided by the employee. Although this witness may never provide testimony, that individual may serve to be a preventative mechanism which is put in place to stop the employee from lying about what he actually did at work. You may also, through your investigation, identify co-workers who are sympathetic to the injured employee’s cause. You may find friends or relatives of the injured employee who work

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alongside him who will not hesitate to explain this is definitely a repetitive trauma job and you could see how easily one could sustain a repetitive trauma injury such as carpal tunnel syndrome. Do not be bashful about talking with these individuals because you can first identify who these individuals are and disclose their identity to the supervisor. You can also identify potential witnesses who could be used by the employee at some later point if the matter is arbitrated. Again, half of the battle is preparing for a trial. Since there is no formal discovery in workers’ compensation, and since we do not know who is going to be presented as a witness on behalf of the employee at the time of trial, then this initial investigation may shed some light on the subject matter. Most certainly, if you see this individual appear at the workers’ compensation docket call, you will have a pretty good understanding of what that individual will testify to at the time of trial. Just because it turns out to be bad news, or news which is not helpful to your defense position, do not discard your notes or the information contained therein regarding this witness. It should be assumed this witness, and co-worker, may provide testimony which will hurt the employer’s case when it is arbitrated. III. CONCLUSION

You can be successful in arguing the defense of an accident in a repetitive trauma case. This is not a lost cause. These claims can be won and we have had excellent results when the facts are on our side. Some of our more notable victories have been in cases asserting an accident defense and are as follows:

Peterson v. Advantage Logistics (repetitive trauma to legs, neck and back, resulting in fibromyalgia; Petitioner was a picker on a line).

Stone v. Austin-Westran (repetitive trauma to bilateral knees; Petitioner was a spot welder in a fabrication department).

McDonald v. University of Illinois (bilateral carpal tunnel claim; Petitioner worked as a janitor).

Bailey v. Kraft Foods (right hand carpal tunnel claim; Petitioner working as a forklift driver).

Coon v. University of Illinois (bilateral carpal tunnel claim; Petitioner worked as a data entry specialist).

Harvey v. Kraft Foods, Inc. (bilateral foot/ankle claim; Petitioner was on feet as a line worker).

Patton v. Courtesy Ford (bilateral carpal tunnel claim; Petitioner was a service technician/data entry specialist).

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In each of these examples, the respondent was able to prevail at arbitration (and on appeal in certain cases) based upon the ability to investigate and build a proper defense in order to educate the arbitrator on the reality of the employee’s job duties versus the simple and often inaccurate allegations put forth by the employee, setting forth mis-information establishing a repetitive trauma claim or leaving out other elements and factors which would play into either an accident and/or medical causal connection defense. Choose your weapons carefully. What you use and establish in this battle will dictate whether you can argue this employee has failed in his burden to show he suffered a repetitive trauma injury because the duties he performed at the time in question were not repetitive or, they were repetitive but did not have the required force and grip associated with same to allow it to rise to the level of a repetitive trauma claim which could be determined compensable under the Illinois Workers’ Compensation Act. Do not be mistaken; this is a battle you can win. Focus on the investigation; use the team approach, and follow up on every point in order to establish your defenses and ultimately prove the employee did not suffer a compensable injury which was repetitive in nature, and that the current condition is not medically causally connected to the activities he performed for the employer.

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Toney J. Tomaso - Partner

Toney is a partner in the Urbana office who concentrates his practice in the areas of workers' compensation, third-party defense of employers, asbestos class action litigation, insurance coverage issues and automobile liability claims. Toney has successfully defended hundreds of workers' compensation claims before various arbitrators throughout the State of Illinois, as well as before all three panels of the Illinois Workers' Compensation Commission. Toney was a member of a three attorney trial team which handled a class action lawsuit arising out of a medical malpractice class action which lasted approximately eight weeks in East Central Illinois. During the course of this litigation, he was required to depose approximately one-half of the class, prepare defense experts, and participate in all phases of the eight-week trial. Significant Cases Land v. Montgomery, Eight week medical

malpractice class action lawsuit.

Public Speaking “Case Study: Respondent Attorney Trial

Strategy Perspective” SafeWorks Illinois 17th Annual Work Injury

Conference, Champaign, IL 2009 “Workers Compensation Law Update” Lorman

Seminar 2008 “Arising Out Of When Should Your Case Be

Arbitrated” Heyl Royster 2008 “Recent Developments In Workers’

Compensation” Risk and Insurance Management Society 2007

Professional Associations Champaign County Bar Association (Bench and

Bar and Computer/Technology Committees) Illinois State Bar Association American Bar Association Will County Bar Association Illinois Trial Lawyers Association Illinois Association of Defense Trial Counsel


Illinois

Education Juris Doctor, Louisiana State University, 1995 Bachelor of Arts (Golden Key Honor Society),

University of Illinois, 1992


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PREPARING FOR BATTLE TO WIN THE WAR: STRATEGIES TO LEVERAGE A GOOD RESULT

Presented and Prepared by: Craig S. Young

[email protected] Peoria, Illinois • 309.676.0400



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I. INTRODUCTION ............................................................................................................................................. J-3 II. MAKING THE DECISION TO DEFEND .................................................................................................... J-3

A. Controlling Medical Expense ..................................................................................................... J-5 B. Avoid Long Term TTD Exposure ............................................................................................... J-6 C. Foster Positive Environment in the Workplace ................................................................... J-7 D. Send a Message to Petitioners’ Attorneys ............................................................................ J-8 E. Avoid Permanent Total and/or Wage Differential Exposure ......................................... J-8 F. Keep Medicare Options Open ................................................................................................... J-9 G. Maintain Settlement Options ................................................................................................. J-10 H. You Just Might Win .................................................................................................................... J-10

III. CONCLUSION .............................................................................................................................................. J-10

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I. INTRODUCTION

In recent years, we have discussed the impact of the Rod Blagojevich administration on workers’ compensation exposure for employers in Illinois. Without doubt, policies of the former administration established an environment before the Illinois Workers’ Compensation Commission which was as hostile towards employers as any other period in our state’s history. Unfortunately, we have not seen significant change in that trend under the new administration. Employers continue to face the most difficult workers’ compensation environment in recent times, and perhaps ever. If anything, potential exposures presented by many workers’ compensation cases have dramatically increased in the past couple of years, due to factors outside the workers’ compensation system, such as Medicare and healthcare issues. In the face of these difficulties, employers, their insurance carriers, third party administrators, and workers’ compensation managers, continue to face difficult decisions with regard to defense and trial of cases. As potential exposures increase, and as decisions from the Workers’ Compensation Commission continue to be very employee-oriented, many employers continue to pursue the strategy of accepting and paying most cases, regardless of legitimate defenses which may exist. The understandable attitude of many employers is “Why should I defend a case I know I will lose anyway?” As other presenters in this seminar have documented, there are far too many situations in which employers are receiving unfavorable results from the Workers’ Compensation Commission in settings where viable defenses exist. Two years ago, the author of this paper discussed the value of making the decision to defend legitimately defensible cases, even when the potential result from the Workers’ Compensation Commission is uncertain. As previously outlined, the leverage which can be obtained from a viable defense can often result in significant savings, even when the result at arbitration is likely to be unfavorable. In the two-year period since this last presentation, the potential exposures existing for employers who simply accept and pay all claims have dramatically increased. Current trends with Medicare issues, permanent total and wage differential exposures, long term TTD issues, and medical treatment issues have dramatically increased the potential exposures on cases which are voluntarily accepted. In today’s environment, the savvy employer must apply a sophisticated analysis to every case, and make an informed decision as to how best to use viable defenses in the ongoing effort to reduce overall workers’ compensation exposure. II. MAKING THE DECISION TO DEFEND

It must be stated at the outset that the decision to defend first and foremost must be based upon an accurate analysis of the facts and the law, as it pertains to each case. It is never good strategy to deny or defend compensable cases, and it is never good strategy to deny any

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workers’ compensation benefit, when the facts and the law indicate compensability. Such action not only raises the potential for penalties, it simply is bad case management strategy. When a benefit is owed, the best strategy is to pay it promptly, and then aggressively manage the case to conclusion. The more difficult case management decision develops in those scenarios when a legitimate defense exists, but defense counsel is suggesting that the Workers’ Compensation Commission might not accept that defense. Many employers in such situations opt to accept the inevitable, save some money on defense, and voluntarily pay defensible claims before proceeding to trial before the Workers’ Compensation Commission. This decision is often made even when there is a good chance of prevailing before a certain arbitrator, because of a concern the favorable decision at arbitration might be reversed on review. As our firm has discussed in the past, in order to properly make the decision to defend or accept compensability, the employer must look beyond the simple question of whether or not the case will be won or lost at trial. The more important question is whether or not the ultimate expense of the claim can be reduced through an aggressive defense. The difficulty for many employers in making this decision is that the savings associated with an aggressive defense is not always traceable directly to the bottom line in today’s workers’ compensation climate where many defensible cases are lost at trial. In making the “pay or defend” analysis, employers must consider not only the chances of winning the case and paying nothing, but also what will be paid on the claim if defenses are abandoned and benefits are voluntarily accepted. This calculation must include the awareness that voluntary acceptance of a defensible claim means that TTD and medical benefits will paid until the petitioner, the petitioner’s attorney, the petitioner’s treating doctors, and the Workers’ Compensation Commission decides those benefits should end. Also, when a defensible claim is voluntarily accepted, employers must understand that an elevated permanency amount will be paid pursuant to settlement, or will be obtained by the petitioner at trial. As will be discussed below, these elevated amounts are increasing daily, as more and more wage differential and permanent total awards are sought, and as Medicare presents additional costs to settlement. Once a claim is voluntarily accepted, the employer loses leverage to limit or reduce many benefits which will develop over the course of the claim, and the employer also loses leverage to negotiate a settlement at an amount which would be awarded by the Commission. Clearly, in today’s environment there is little doubt that arbitration of defensible claims will sometimes result in the case being found compensable and benefits being awarded. No employer in today’s environment can blindly assume that an aggressive defense will always result in a favorable decision if the case is tried. Unfortunately, this is true even as to cases which are clearly defensible based on the law and the facts. There are far too many examples of cases which are clearly not compensable being found compensable by our Workers’ Compensation Commission. A decision to voluntarily accept and pay a defensible claim, however, eliminates numerous opportunities to reduce workers’ compensation costs, and guarantees a result in which the ultimate amount paid will be the absolute maximum. Giving up valid defenses often reduces or eliminates the ability to manage the claim at all levels, and surrenders control of all

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TTD, medical, and permanency decisions to the petitioner, petitioner’s attorney, the petitioner’s doctors, and the Workers’ Compensation Commission. Conversely, aggressively asserting viable defenses will present many options throughout the pendency of the case to reduce, sometimes dramatically, the ultimate cost of the case.

A. Controlling Medical Expense

It is no secret that medical costs are perhaps the largest driver of workers’ compensation expense. Even in clearly compensable cases which are accepted, aggressive strategies must be employed to try and end medical treatment, and limit that treatment to those expenses which are truly reasonable and necessary to cure the effects of the injury. Limiting these expenses can be difficult, even in clearly compensable cases. More difficult decisions arise when the work comp manager is faced with the dilemma of approving or denying certain medical treatment on cases which are arguably defensible. We all have experienced the situation of deciding whether to approve or deny treatment when a viable defense exists, but defense counsel is suggesting that the defense might not be won at arbitration. The tendency is to decide that it is better to begin the treatment immediately, complete it as soon as possible, and then move the case toward resolution. This decision can be especially difficult when a legitimate accident defense exists, but preliminary medical indicates the injury might not be very serious. If it is not certain that the accident defense would prevail, the temptation is to pay for “a little” medical, “a little” TTD, and then resolve the case. Unfortunately, this often backfires. Once the accident defense is conceded, it becomes difficult or impossible to raise it at a later time. Far too many workers’ compensation decision makers have been faced with the dilemma of seeing a strain case develop into a surgical case, at which point there is regret for having given up the accident defense. By removing the pressure of the denied case from the petitioner, as well as from the petitioner’s doctors, it becomes far too easy for the petitioner to progress through the system and continue to experience physical difficulty while drawing TTD. With unfortunate frequency, the medical community remains far too likely to continually elevate the treatment levels as the petitioner continues to complain. This occurs often, even in the absence of objective evidence to document a condition of ill-being. In many cases, this scenario can be controlled by asserting a valid accident defense prior to authorizing TTD and medical treatment. It is not uncommon for a petitioner who is refused the opportunity to progress unchallenged through the system to look for other resolution options. Sometimes the mere presence of timing issues associated with getting a disputed case to trial can be a factor in forcing the petitioner to bring medical and TTD to conclusion. Even in cases which are accepted as compensable, legitimate disputes can arise as to the reasonableness and necessity of treatment, or causal connection. Perhaps the most common example of this is when a treater decides that conservative treatment has failed and surgery is necessary, and a credible IME physician has rendered the opinion that surgery is not

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appropriate. It is not uncommon for defense counsel to advise that the Workers’ Compensation Commission is likely to follow the treater’s opinion over the opinion of the IME physician. At the same time, it is often clear in these cases that the surgery will likely not help the petitioner, and in fact, might make the petitioner worse. As an example, there is a growing body of evidence-based medicine which documents the non-effectiveness of fusion surgeries in many occupational injuries. Despite that growing body of evidence, we see an ever-increasing frequency in some medical communities for fusions to be recommended on a regular basis, simply because conservative treatment has failed. In many of these situations, it might be appropriate to employ a strategy which is directed toward trying to keep the fusion surgery from occurring. While this can be difficult when the Workers’ Compensation Commission is willing to award the surgical benefit, refusing to voluntarily accept the surgery when credible evidence questioning the necessity of the surgery exists sometimes presents opportunities to bring a case to conclusion prior to the surgery. In some cases, this strategy can be the difference between a settled case with closed medical, and a very expensive permanent total case with open-ended medical exposure. While the disputed surgical case is probably the best example of how medical containment strategies can dramatically reduce exposure, the savvy case manager should not always accept and authorize every conservative treatment measure recommended by treating physicians. When credible medical evidence exists, either by way of IME testimony or UR testimony to deny certain conservative treatments, those defenses should be asserted even in scenarios where the potential of losing that defense at trial exists. There are ever-increasing examples of the medical community being willing to extend therapy, work hardening, glorified chiropractic treatment, and other pain management techniques almost forever. It also must be remembered that our system tends to progress patients along a treatment continuum, and as conservative treatment measures become protracted, the petitioner is simply progressing to more and more serious treatment, ultimately leading to surgery or other more serious medical interventions. These causal relationship and necessity of treatment issues will not always present certain results at trial, but when credible evidence exists to refute treatment, denial of such treatment will likely be advisable.

B. Avoid Long Term TTD Exposure

Most good claims handlers are aware that one of the most important strategies for limiting workers’ compensation expense is to limit TTD exposure whenever possible. It is always best to avoid even initiating TTD, if there is evidence to support TTD denial. Most cases are not going to progress in a positive direction, as long as the petitioner is able to continue working without pay. Aggressively relying upon any credible evidence which may be available to support a refusal to pay TTD is always good claims handling strategy. Like so many other issues, there are numerous factual scenarios presented in which the Workers’ Compensation Commission would be likely to award TTD, if the issue is tried. Sometimes the dispute may be as to overall compensability, if an accident defense exists. Other times, the dispute may be medical in nature, and may turn on the question of disputed medical opinions

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as to whether or not the petitioner can work. Also, the employer may have a job offer available which matches an IME physician’s restrictions, but does not match the restrictions placed on the petitioner by the treating physicians. In many such scenarios, defense counsel may advise that these issues are likely to be lost in front of certain arbitrators. The employer’s evidence may be strong, but the reality may be that the Commission, in addressing the evidence, would be likely to award the TTD benefits. In far too many situations, employers opt for voluntarily continuing TTD in these scenarios. Although statistical evidence to document this strategy would be impossible to compile, it is clear that in a majority of cases, the ability to end the TTD benefit often moves the case to resolution prior to any trial. This is often true, even when it is clear to all of the parties that the petitioner would have a reasonably good chance of prevailing on the TTD issue at trial. The prospect of being without a TTD check for an extended period of time while the trial and review process takes place, is often a factor which prompts the petitioner to voluntarily return to work and move toward case closure. As a result, claims handlers should be very aggressive at asserting evidence which allows for termination of TTD. Special care must be taken in this scenario to make reasonable judgments as to the evidence available on the disputed TTD issue. An experienced claims handler will not only try to determine what the Commission’s result might be at trial, but also try to determine what the true status of the petitioner’s inability to work is. If the best medical evidence documents that the petitioner really isn’t capable of returning to work, terminating TTD will likely not positively affect the outcome. It is not enough to have some evidence to justify termination of TTD, it is important to have credible evidence. When such evidence exists, an aggressive termination of TTD makes sense, even if there is concern that the petitioner might win the dispute at trial.

C. Foster Positive Environment in the Workplace

Employers often overlook the benefits to the workplace of consistently following the credible evidence in workers’ compensation cases. Unfortunately, it is a reality that if an employer’s workforce becomes aware that certain types of claims are automatically accepted and paid, the frequency of those types of claims will dramatically increase. This is especially true when a certain department or segment of the workforce is prone to similar type injuries. The best way to insure that claims will increase in the future is to simply accept and pay any and all claims presented regardless of the evidence. When an employer has credible evidence to deny a case, there are benefits to asserting that denial, even if there is a likelihood the case will be lost at trial. Fellow employees will be less likely to file copycat claims, if they are aware the employer is ready and willing to defend those claims and take them to trial regardless of the result. As is true with all of these disputed situations, special care must be taken to reasonably evaluate the evidence, and to make these compensability decisions upon that reasonable evaluation. As was demonstrated in the Supreme Court’s recent decision in the Interstate Scaffolding case, the courts can sometimes author decisions which are extremely problematic in the workplace.

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Some commentators on the Interstate Scaffolding case have suggested that this case stands for the proposition that you can “hit the boss, and collect TTD.” While the Interstate Scaffolding case certainly does not stand for that proposition, it does raise the potential argument that an employee terminated for cause as a result of his own bad act could, in certain scenarios, receive TTD. This case is an example of a legal principle which should be carefully analyzed in each individual case. To the extent an employer can isolate any facts in an individual case which can be distinguished from the facts in Interstate Scaffolding, all requests for workers’ compensation benefits sought by employees who are terminated for their own bad acts should be denied. Even if it is assumed that some of those denied claims would ultimately be held compensable by the Workers’ Compensation Commission, the negative impact on overall workers’ compensation expenses of voluntarily accepting workers’ compensation claims from petitioners who are terminated as a result of their own bad acts could create astronomical workers’ compensation costs in the workplace. The best strategy for reducing workers’ compensation claims in the workplace is to consistently and fairly pay those claims which are supported by the evidence, and consistently and fairly deny those claims which are not supported by the evidence. An employer cannot afford to be voluntarily paying claims not supported by the evidence, simply out of fear that the claim might be lost at trial.

D. Send a Message to Petitioners’ Attorneys

Although of lesser importance, employers also need to be aware of those situations in which a proper message should be sent to petitioners’ attorneys. In some settings, petitioners’ attorneys will not be as likely to continually file claims, if they are aware the employer will assert legitimate defenses. Conversely, some petitioner’s attorneys become aware that certain employers always pay cases, even when defenses exist, and those attorneys therefore become prolific filers of cases against that employer. The unfortunate reality is there are many petitioners’ attorneys who will file workers’ compensation claims on behalf of their clients, regardless of the approach of the employer. In some instances, however, petitioner’s attorneys, especially more accomplished petitioner’s attorneys, will decide not to pursue certain types of claims against employers who they know will consistently assert viable defenses. They simply make a business decision that it is not cost-effective for them to pursue such claims.

E. Avoid Permanent Total and/or Wage Differential Exposure

One of the most troubling trends in decisions from the Workers’ Compensation Commission over the last couple of years has to do with the dramatic increase in the number of permanent total and wage differential decisions. More and more petitioners have become unwilling to close their cases for reasonable permanency amounts, and have become more aggressive at asserting the right to long term or lifetime benefits. This trend is likely due in part to the liberalization of the Illinois Workers’ Compensation Commission over the last couple of years, and also due to a significant amount of advertising by petitioners’ attorneys in which the potential for lifetime benefits is promoted. Physicians who are prone toward doing and saying what their patients desire, often cooperate with this trend, both in terms of recommendations for never-ending treatment, as well as opinions documenting a petitioner’s inability to return to work. The

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unfortunate reality is some employees when presented with the prospect of retiring on work comp will aggressively pursue that option, and in far too many cases, they will be able to garner some evidence to support their position. This move toward more frequent attempts to obtain long term benefits such as permanent total or wage differential benefits is one of the primary reasons for asserting viable defenses available to the employer. Gone are the days of employees getting hurt, being treated, getting better, returning to work, and reasonably closing their cases. While many compensable cases will progress in that fashion, far too many cases in today’s environment appear to be simple at the outset, only to ultimately present long term exposure. The best strategy for an employer to avoid this scenario is to consistently and aggressively present viable defenses at every point in the case. If a viable accident defense exists, do not initiate the payment of benefits. When a case is compensable, be certain to aggressively assert any defense which may be available to ongoing benefits, whether those benefits be TTD or medical. The employer, who allows the prospect of losing an issue at trial to result in the voluntary acceptance of benefits which can be reasonably disputed, will far too often be presented with the potential for permanent total or wage differential exposure.

F. Keep Medicare Options Open

One of the most difficult recent developments in workers’ compensation practice has been the advent of Medicare’s efforts to protect their rights pursuant to the Medicare Secondary Payer Act. Every work comp claims handler is aware of the issues presented by Medicare, and of the difficulty the Medicare issue often presents when attempting to resolve cases. The expense of settling cases has been dramatically increased in those settings when Medicare’s future interests must be protected. Numerous strategies are employed to manage the Medicare exposure as we attempt to resolve workers’ compensation cases. Often these strategies might result in the decision not to set up a Medicare Set-Aside trust. Obviously, when this decision has been made, there needs to be good evidence available to support that decision. One of the most important factors which needs to be looked at in deciding whether or not a set-aside trust should be set up for certain medical treatment is whether or not the treatment has been consistently denied by the employer. If a claim has been accepted, or if a medical benefit has been voluntarily accepted, that voluntary payment might limit the ability to avoid a set-aside even when there is credible medical evidence to dispute future Medicare exposure. In short, it is becoming more and more important for employers to be able to document that they have consistently denied certain treatment. In some cases, this consistent denial could be the difference between a settlement closing all issues without a set-aside, and the inability to settle a case due to the amount of a necessary Medicare Set-Aside.

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G. Maintain Settlement Options

It must always be remembered that denying a workers’ compensation case or denying certain benefits doesn’t mean that the employer will never pay anything. Often, the greatest cost savings will be presented by a settlement and close out which would not have been available but for the defenses previously asserted by the employer. A strategy which contemplates taking every denied case to trial, regardless of the strength of the denial, is not likely to be effective in an overall effort to control workers’ compensation costs. The greatest cost control strategy is sometimes presented by the case which is settled and closed out for a lump sum after the aggressive assertion of defenses has limited the potential for more expensive long term benefits. The savvy claims handler will always recognize this strategic option available in those cases which have been properly denied. It is a reality that many properly denied cases will be lost at trial by the employer, and in those scenarios, the employer needs to keep an open mind toward the most cost-effective resolution. When viable defenses are asserted, the employer maintains the ability to use some creativity in negotiating case resolution. Often an arbitrator who is very likely to decide against an employer at trial will be much more employer friendly at a pretrial. This pretrial opportunity is lost when an employer voluntarily gives up a defense and accepts compensability. Numerous other creative options for case resolution will present themselves when employers properly assert viable defenses. Very little opportunity for case closure exists when the petitioner is never challenged and questionable benefits are paid on a voluntary basis.

H. You Just Might Win

Of course the best reason to consistently assert viable defenses is the fact that many cases can in fact be won before the Commission. While there is a wide variance in results expected from different arbitrators, the employer should never give up on the possibility of winning those cases which truly are defensible. Far too many opportunities for an outright win in a workers’ compensation case are lost due to an employer’s willingness to simply accept and pay claims based on a belief that the Commission is going to find all cases compensable. III. CONCLUSION

It is no secret that the environment faced by employers before the current Illinois Workers’ Compensation Commission remains very difficult. We have not yet seen the changes necessary to improve the environment for employers. Until such changes occur, either at the legislative or administrative levels, it seems likely the majority of decisions from the Commission, at all levels, will be in favor of petitioners. This unfortunately is sometimes true, even when credible evidence in favor of the employer exists. Employers however, must continue the effort to limit and reduce workers’ compensation costs, even in the face of this difficult legal environment. Although every case must be judged on a case-by-case basis, it is clear that a workers’ compensation policy of paying most cases due to a fear of losing the case at trial will be costly. While the cost of

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defense always must be factored into the claims handling analysis, the cost of that defense often will be trivial compared to the savings available to the employer who aggressively asserts viable defenses. As increasingly expensive issues such as sky-rocketing healthcare costs, Medicare Set-Aside exposure, and increased permanency values, including permanent total and wage differential exposures, continue to develop, employers must be vigilant in attempting to control those costs. Often, the only viable strategy available to an employer to control these costs is to aggressively assert viable defenses, even when the chance of success at trial is uncertain.

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Craig S. Young - Partner

Craig practices and has a leadership role in the firm's workers' compensation and employment law practice groups. Craig began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in 1985. He has spent his entire career with Heyl Royster and became a partner in 1993. He is recognized as a leading workers' compensation defense lawyer in the state of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. He has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves on the steering committee for the workers' compensation committee of the Defense Research Institute. He also chairs DRI's Program Committee and in that role has assisted in nationally acclaimed teleconferences on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Record. Craig is actively involved in supporting many local charitable organization and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Public Speaking “Elements of a Winning Workers’

Compensation Program” Downstate Illinois Occupational Safety & Health Day 2010

“Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers’ Compensation” Risk Control Workshop 2010

“Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues” Lorman Education Services 2008

The Implications of ADA, FMLA and Collective Bargaining Agreements on the Workers’ Compensation Claim Defense Research Institute 2008

“The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement” Lorman Education Services 2008

“Medicare Set-Aside Agreements-The Rest of the Story” Defense Research Institute 2007

“Workers' Compensation and Illegal Aliens” Defense Research Institute 2006



Peoria County Bar Association 2008 Distinguished Community Service Award

Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association - Board Member

and Chair of By-laws Committee Defense Research Institute - Workers'

Compensation Steering Committee - Program Chair



Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude),

Bradley University, 1982


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CASE LAW UPDATE

Presented and Prepared by: Daniel R. Simmons

[email protected] Springfield, Illinois • 217.522.8822



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CASE LAW UPDATE I. DOES THE CLAIM ARISE OUT OF AND IN THE COURSE OF THE PETITIONER’S EMPLOYMENT WITH THE RESPONDENT? ............................................. K-3

A. Altercation........................................................................................................................................ K-3 B. Intoxication ...................................................................................................................................... K-4 C. Recreation ........................................................................................................................................ K-4 D. Innocent Victim of Shooting ..................................................................................................... K-5 E. Smoking ............................................................................................................................................ K-5 F. Personal Comfort .......................................................................................................................... K-6

II. IMPOSITION OF PENALTIES AND ATTORNEYS’ FEES ..................................................................... K-7

A. Penalties and Amputation Claims ........................................................................................... K-7 B. Penalties Declined ......................................................................................................................... K-8 C. Penalties Award Affirmed ........................................................................................................... K-8

III. INTERSTATE SCAFFOLDING, INC. V. ILLINOIS WORKERS’ COMPENSATION COMMISSION ............................................................................................................. K-9 IV. PERMANENT PARTIAL DISABILITY AWARDS ..................................................................................... K-9

A. Waiver on Appeal .......................................................................................................................... K-9 B. Simultaneous Award of Permanent Partial and Permanent Total Disability Benefits .................................................................................... K-10

V. VARIOUS PROCEDURAL ISSUES .......................................................................................................... K-11

A. Circuit Court Appeal Bond Must Be Exact ........................................................................ K-11 B. Time for Appeal and Attempt to Dismiss for Lack of Subject Matter Jurisdiction ..................................................................................... K-11 C. Longshore v. Workers’ Compensation ............................................................................... K-12 D. Declaratory Judgment on Coverage Issue ........................................................................ K-12 E. Manifest Weight Argument Unsuccessful ........................................................................ K-13 F. Claim of Corporate Unfairness in Handling Claims Unsuccessful .................................................................................................................. K-13 G. Chiropractor Is Not a Third-Party Beneficiary of Workers’ Compensation Policy ............................................................................................. K-14

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CASE LAW UPDATE

I. DOES THE CLAIM ARISE OUT OF AND IN THE COURSE OF THE PETITIONER’S EMPLOYMENT WITH THE RESPONDENT?

A. Altercation

Bassgar, Inc. v. Illinois Workers’ Compensation Comm’n, 394 Ill. App. 3d 1079, 917 N.E.2d 579, 334 Ill. Dec. 753 (3d Dist. 2009) – The petitioner suffered an injury to his left arm at work as a result of a physical altercation with his supervisor. The petitioner was charged with and convicted of battery for his role in the incident. The arbitrator concluded that the altercation was related to the work, but denied recovery, finding that the criminal conviction collaterally estopped the petitioner from asserting that the supervisor was the aggressor. The commission on review rejected the arbitrator’s finding that the battery conviction collaterally estopped the petitioner from relitigating the identity of the aggressor.

The Appellate Court confirmed the commission decision. The court restated the law on compensability in cases involving injuries caused by an altercation. Where a physical confrontation occurring at a petitioner’s place of employment involves a personal dispute unrelated to work, any injury that results is not considered to have risen out of the employment. An injury resulting from a fight between two employees involving a work related issue, however, is considered a risk incidental to the employment and is therefore compensable under the Illinois Workers’ Compensation Act (Act). In that context, the “aggressor defense” provides that, even if a fight is work related, an injury to the aggressor is not compensable under the Act. The rationale for the aggressor defense is that the petitioner’s own rashness negates the causal connection between the employment and the injuries so that the work is neither the proximate nor a contributing cause of the injury. Identifying the aggressor in a work place altercation is a question of fact for the commission to decide. In making the determination of who the aggressor was in a work place altercation for purposes of the aggressor defense, the fact that one party made the first contact is not decisive. The party’s conduct has to be examined in light of the totality of the circumstances that include the conduct of the other participant or participants in the altercation. In this case, the court found that the petitioner’s arm injury was compensable under the Act even though the petitioner initiated a verbal dispute with his supervisor. The evidence showed that the petitioner walked away from his supervisor following the verbal dispute. While walking away, the supervisor responded by grabbing the petitioner and throwing him against a table, injuring the petitioner’s arm. As a result, the petitioner was found not to be the aggressor for purposes of the Workers Compensation Act and therefore was not barred from recovery. The issues in the petitioner’s battery case were not identical to the issue of who was the aggressor for workers’ compensation purposes, therefore the battery conviction in the criminal case did not bar the petitioner from proceeding with his workers’ compensation case and was not dispositive of the issue of who the aggressor was for purposes of workers’ compensation liability.

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B. Intoxication

Lenny Szarek, Inc. v. Illinois Workers’ Compensation Comm’n, 396 Ill. App. 3d 597, 919 N.E.2d 43, 335 Ill. Dec. 522 (3d Dist. 2009) – The petitioner was injured when he fell through a hole in the second story floor of a house in which he was working. Following the incident, the petitioner tested positive for the presence of both marijuana and cocaine. The respondent denied the claim. The arbitrator and commission awarded benefits and penalties and attorney’s fees against the respondent.

The Appellate Court affirmed the finding of compensability, but reversed the award of penalties and attorney’s fees. The employer’s expert witness testified that the petitioner used marijuana within one and a half days of the accident. The expert could not state that the petitioner’s marijuana intoxication was the sole cause of the accident. The petitioner’s co-workers testified at arbitration. They testified that the petitioner was performing his job prior to and at the time of his injuries in a workman-like fashion. The court found that although the petitioner had safely negotiated similar holes in the flooring while working in numerous other houses, but for the existence of the hole at the worksite, the petitioner could not have fallen through it. Accordingly, even if the petitioner’s drug impairment was a contributing cause of the injury, it could not have been the sole cause of the injury because of the hole in the floor by necessity had to be a contributing cause to the injury. That the hole in the floor existed definitionally exposed the petitioner to a risk of harm beyond that to which the general public is exposed. The combination of the employer’s expert’s testimony and the testimony of the petitioner’s co-workers were not enough to show that the petitioner was so intoxicated that he abandoned his employment. As a result, the Appellate Court found that a finding of compensability was appropriate. The court further found that it was not unreasonable for the employer to interpose an intoxication defense. In order to avoid penalties and attorney’s fees, an employer must show that the delay or lack of payment was reasonable and not vexatious and unreasonable. In this case, the court found that the respondent had a reasonable basis for not paying benefits, therefore penalties and attorney’s fees were not appropriate.

C. Recreation

Elmhurst Park Dist. v. Illinois Workers’ Compensation Comm’n, 395 Ill. App. 3d 404, 917 N.E.2d 1052, 334 Ill. Dec. 977 (1st Dist. 2009) – The petitioner worked at a fitness facility operated by his employer, a park district. The petitioner injured his right leg while playing in a volleyball game on the respondent’s premises during a work shift. The arbitration and commission awarded benefits.

The Appellate Court affirmed. The court found that the petitioner’s participation in a team game at his place of employment was not recreational within the meaning of the exclusion of workers’ compensation benefits for an injury incurred while participating in voluntary recreational activities under section 11 of the Act. The petitioner worked at a fitness facility that was operated by the city park district. The petitioner, who was a fitness supervisor, was asked by a co-worker to participate in the team game. The petitioner first declined the invitation because he was not feeling well and had other work to do. The petitioner’s co-worker persisted in her

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request and told the petitioner that the game would be cancelled without his participation. As a result of that request, the petitioner decided to help out because he felt that it was part of his job, which was to promote classes and programs of the park district. The court held that the petitioner’s participation in the team game was not recreational within the meaning of exclusion of workers’ compensation benefits for an injury incurred while participating in voluntary recreational activities. In this case, the court found that the recreational activity was a part of the petitioner’s job duties and was not within the meaning of the recreational activities exclusion under section 11 of the Act.

D. Innocent Victim of Shooting

Restaurant Development Group v. Hee Suk Oh, 392 Ill. App. 3d 415, 910 N.E.2d 718, 331 Ill. Dec. 309 (1st Dist. 2009) – The petitioner worked as a bartender for the respondent. The petitioner was standing near the bar when a stray bullet fired from outside the restaurant went through the floor to ceiling windows and struck her in the back. The evidence showed that the restaurant was located in a high crime area with rival street gangs feuding over turf. The petitioner bartended near the restaurant’s floor to ceiling windows which were adjacent to the street, exposing the petitioner’s body to the exterior of the restaurant and placing her at a higher risk of injury for random gunfire than the general public. The arbitrator and commission awarded benefits.

The Appellate Court affirmed. For purposes of determining whether a workers’ compensation petitioner’s injury arose out of her employment, the risk of being struck by a stray bullet is a neutral risk, which has no particular employment or personal characteristics. Whether a workers’ compensation injury caused by a neutral risk arises out of employment, is dependent upon whether the petitioner was exposed to a risk to a greater degree than the general public. In making that comparison, a specific neighborhood should not be targeted, rather, a broad cross section of the public needs to be considered in terms of whether there is a greater risk of harm. The court specifically found that the petitioner’s exposure was not simply a matter of positional risk, which is not compensable. The risks that the petitioner were exposed to, including being struck by a stray bullet, were conditions of her employment that were not the same that the general public is commonly exposed to. Taking all of the facts together as a whole, the court found that the commission correctly found as a matter of factual determination that the petitioner was exposed to a risk greater than that faced by the general public. The risk was not positional risk, rather, it was risk associated with the petitioner’s employment. The commission decision was supported by facts and was not against the manifest weight of the evidence, therefore the commission’s finding of compensability would not be disturbed on review.

E. Smoking

Global Products v. Illinois Workers’ Compensation Comm’n, 392 Ill. App. 3d 408, 911 N.E.2d 1042, 331 Ill. Dec. 812 (1st Dist. 2009) – The petitioner alleged that he sustained an employment related injury to his low back when he slipped and fell at work. The employer disputed compensability, claiming that the petitioner’s smoking was an intervening cause that broke the

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chain of causation back to the original work injury so as to deny compensation. The arbitrator and commission disagreed, finding in favor of the petitioner on compensability and also awarding the petitioner penalties and attorney’s fees.

The Appellate Court agreed that the petitioner’s smoking did not break the chain of causation, however, the court found that the smoking defense was enough to avoid imposition of penalties and attorney’s fees. The facts in the case showed that the petitioner was a smoker and was a smoker before his first surgery. The petitioner’s doctor told the petitioner that he should quit smoking because there are problems with healing after surgery that come with being a smoker. There was no evidence that the petitioner smoked cigarettes intentionally to slow his recovery following surgery. The petitioner also testified that he made a good faith effort to quit smoking that was not successful. The employer acknowledged at arbitration that it is commonly accepted by the medical community that smoking is an addiction. In order for an employer to be relieved of liability by virtue of an intervening cause, the intervening cause must completely break the causal chain between the original work related injury and the ensuing condition. As long as a “butfor“ relationship exists between the original event and the subsequent condition, an employer remains liable. Unlike an intervening cause defense, there is no requirement that an injurious practice be the sole cause of a petitioner’s condition of ill-being for the commission to reduce or deny compensation. The commission, in its discretion, may reduce an award in whole or in part if it finds that a petitioner is doing things to slow his recovery. In this case, the Appellate Court held that the petitioner’s smoking did not rise to the level of intervening cause to break the chain of causation back to the original work injury so as to deny compensation because a “butfor” relationship still existed between the original work injury and the petitioner’s subsequent condition. The court further found that the employer’s denial of workers’ compensation benefits did not warrant imposition of penalties and attorneys fees on the employer. The court found that the respondent’s physician’s testimony was relatively compelling about a break in the chain of causation even though that testimony did not ultimately persuade the commission. As a result, the court found that the employer could legitimately rely on the testimony of the physician in denying benefits so that an award of penalties and attorneys fees in addition to a finding of compensability was not appropriate.

F. Personal Comfort

Circuit City Stores, Inc. v. Illinois Workers’ Compensation Comm’n, 909 N.E.2d 983, 330 Ill. Dec. 961 (2d Dist. 2009) – The petitioner was working when a co-worker asked him for help dislodging a bag of chips she had purchased from the vending machine. The petitioner went with the co-worker to the hallway and saw the bag stuck in the machine. He shook the machine from the front, with no success. He also shook it from the side with no success. He then testified that he took one step forward and hit the machine with his shoulder, but the machine did not move. His hip followed while he was encountering the machine and he struck the machine and fell to the ground and was injured. The arbitrator and commission found that the claim was compensable.

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The Appellate Court confirmed the finding of compensability. The court found that the petitioner’s injury arose out of his employment with the respondent. The petitioner was injured when he struck the vending machine that the employer had provided for the convenience of its customers and employees. The petitioner was trying to dislodge a bag of chips for a co-employee. The evidence showed that the employer knew that products occasionally got stuck in the vending machine. The court found that the evidence supported a finding that the injury also occurred in the course of the employment. Even though the petitioner was injured when he was helping another employee in her attempt to dislodge a stuck bag of chips from the company vending machine, the fact that the petitioner would come to the aid of a fellow employee was reasonably foreseeable. The court found that the personal comfort doctrine did not apply because the petitioner was not trying to get a bag of chips for himself, rather, he was trying to get the bag of chips for his co-worker. Instead, the court said that the Good Samaritan doctrine was applicable instead. Under the Good Samaritan doctrine, when an employee leaves his work to render aid to a third party, the determination of whether an injury occurs in the course employment hinges on whether the employee’s departure from work was reasonably foreseeable. While the court admitted that the decision by the petitioner to help his co-worker was not of an urgent nature, the decision to help clearly was matter of collegiality and good team spirit. As a result, the court found that the decision by the petitioner to help his co-worker retrieve the stuck bag of chips was reasonably foreseeable, thereby making the decision that the injury occurred in the course of the petitioner’s employment correct under the Good Samaritan doctrine.

II. IMPOSITION OF PENALTIES AND ATTORNEYS’ FEES

As is apparent from the first section of this update, imposition of penalties and attorneys’ fees is a hot button issue with the Appellate Court over the past year. In the preceding section, the court vacated imposition of penalties and attorneys’ fees in several cases where respondents had good faith defenses, but where compensability was ultimately found to exist. The court has also examined the issue of penalties and attorneys’ fees in several other cases that will be addressed here.

A. Penalties and Amputation Claims

Greene Welding and Hardware v. Illinois Workers’ Compensation Comm’n, 396 Ill. App. 3d 754, 919 N.E.2d 1129, 336 Ill. Dec. 204 (4th Dist. 2009) – The petitioner sustained a total amputation of his right ring finger and a partial amputation of his right middle finger. The arbitrator awarded statutory permanency benefits of 100 percent of the right ring finger and 50 percent of the right middle finger. The arbitrator denied the petitioner’s request for penalties and attorneys’ fees. The commission affirmed the permanency award, but reversed on penalties and attorneys’ fees and awarded penalties and attorneys’ fees to the petitioner. The Appellate Court affirmed the award of penalties and attorneys’ fees. The court held that, in amputation cases, petitioners are entitled to immediate payment of permanent partial disability

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where there has been a statutory loss. Statutory amputations are to be paid immediately and promptly. The court specifically rejected the respondent’s claim that statutory benefits for amputations do not have to be made until maximum medical improvement is reached and that there is a grace period of 60 days to begin payment of statutory amputation benefits. If there is a statutory amputation, a petitioner is entitled to immediate and prompt payment of statutory loss benefits with the exception of those periods of time where the petitioner is not working and is collecting temporary total disability benefits.

B. Penalties Declined

Reynolds v. Illinois Workers’ Compensation Comm’n, 395 Ill. App. 3d 966, 918 N.E.2d 1098, 335 Ill. Dec. 285 (3d Dist. 2009) – The respondent’s case supporting no compensability was based on three different doctors’ reports. One doctor’s report questioned whether the petitioner’s cervical and disc herniation injuries might have been caused by a series of gradual events as opposed to a sudden event. Another doctor stated that the petitioner’s MRI showed degenerative disc disease. A third doctor offered an opinion that the petitioner’s symptoms were related to degenerative changes and were not the result of an injury. The arbitrator found in the petitioner’s favor on compensability and also awarded penalties and attorneys’ fees. The commission affirmed. The circuit court affirmed the compensability finding, but reversed and vacated the award of penalties and attorneys’ fees. The Appellate Court affirmed the circuit court. The court found that, generally, when an employer acts in reliance upon reasonable medical opinion or where there are conflicting medical opinions, penalties ordinarily will not be imposed if an employer decides to delay or refuse payment of benefits. The relevant question is whether the employer’s reliance was objectively reasonable under the circumstances. In this case, the court noted that the respondent was relying on the opinions of three different physicians to support its case that the claim was not compensable. The Appellate Court specifically found that the commission abused its discretion in imposing penalties. An abusive discretion occurs when no reasonable person could agree with the position taken by the commission. The court discussed the physician’s opinions and concluded that no reasonable person could conclude that the employer was not entitled to rely on the physician’s opinions in defending the case. In light of the court’s finding that the commission abused its discretion, the Appellate Court affirmed the circuit court’s finding that the penalties and attorneys’ fees award should be vacated.

C. Penalties Award Affirmed

Residential Carpentry, Inc. v. Illinois Workers’ Compensation Comm’n, 389 Ill. App. 3d 975, 910 N.E.2d 109, 331 Ill. Dec. 36 (3d Dist. 2009) – An award of penalties and attorneys’ fees was made by the arbitrator and commission and eventually affirmed by the Appellate Court. The employer refused to pay for rotator cuff and clavicle surgery (to remove bone spurring) that was recommended by the treating physician. The court found that the denial was not made in good faith. There was evidence that bone spurs that the employer claimed were not caused by the carpenter’s work injury did not impinge on the rotator cuff before the injury. The treating

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physician offered an opinion that degenerative changes in the carpenter’s shoulder remained asymptomatic until they were aggravated by a work injury. Importantly, there was evidence that it was unreasonable to have a doctor operate on one part of the carpenter’s shoulder, but not on another part that could be addressed during the same procedure. The court did not find compelling the respondent’s position that it authorized the repair of the rotator cuff, but only denied authorization for the clavicle resection portion of the surgery. The court found that everything was related to the petitioner’s work injury and was sufficiently unimpressed by the respondent’s argument that it upheld the award of penalties and attorney’s fees for the denial of surgery. III. INTERSTATE SCAFFOLDING, INC. V. ILLINOIS WORKERS’ COMPENSATION

COMMISSION

Interstate Scaffolding is undoubtedly the most important decision to come out in the past year. The Illinois Supreme Court held, as a matter of first impression, that an employer was required to continue paying TTD benefits after termination of the petitioner’s employment. The most important element to take away from Interstate Scaffolding is that the only inquiry concerning whether TTD is still owed is whether the petitioner has reached a level of maximum medical improvement. The circumstances of the petitioner’s departure from employment with the respondent are irrelevant for the purposes of determining whether TTD is still owed. A previous section of these materials is entitled “TTD Fact Scenarios - Interstate Scaffolding and How to Suspend TTD.” Please refer to that section for an in-depth discussion of Interstate Scaffolding and how best to approach TTD situations where maximum medical improvement has not yet been reached.

IV. PERMANENT PARTIAL DISABILITY AWARDS

A. Waiver on Appeal

TTC Illinois, Inc./Tom Via Trucking v. Illinois Workers’ Compensation Comm’n, 396 Ill. App. 3d 344, 918 N.E.2d 570, 335 Ill. Dec. 225 (5th Dist. 2009) – The employer through the Illinois State Insurance Guarantee Fund sought to reverse awards to a petitioner for permanency relating to a back injury. The arbitrator and commission found in the petitioner’s favor and the Appellate Court affirmed. The majority of the Appellate Court’s decision centered on whether a petition to reinstate was properly heard by the arbitrator. The court noted that the respondent’s attorney essentially agreed that the reinstatement could occur on a convenient date for both parties when they were before the arbitrator on some other matter, therefore the respondent waived any objection to the case when it was reinstated. The petitioner was later involved in an explosion that rendered him permanently and totally disabled. The award of permanency for a low back condition and causal connection were made at the arbitration and commission levels. The commission affirmed an award of 25 percent of a person as a whole for the low back condition. In addition to finding that the petitions to reinstate were properly awarded by the arbitrator, the court specifically found that the respondent waived any argument that the low

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back condition was not causally related or that the amount of permanency was inappropriate because the respondent cited no legal authority in its brief on appeal.

B. Simultaneous Award of Permanent Partial and Permanent Total Disability Benefits

Beelman Trucking v. Illinois Workers’ Compensation Comm’n, 233 Ill. 2d 364, 909 N.E.2d 818, 330 Ill. Dec. 796 (2009) – The petitioner had an undisputed accident in which he was paralyzed in both legs, had paralysis below the shoulder in his left arm with surgical amputation of the right arm above the elbow. The Illinois Supreme Court held that the petitioner was entitled to an award of statutory permanent total disability benefits because of the bilateral leg paralysis. Despite the fact that the petitioner was rendered permanently and totally disabled because of the leg injuries, the petitioner was also entitled to a permanent partial disability award for the loss of use for each of his arms. Although a number of issues are addressed in the opinion, the primary issue concerned whether a petitioner could receive both statutory permanent total disability benefits as well as permanent partial disability benefits for the loss of use of his arms. In finding that there could be recovery for both permanent total and permanent partial disability, the court found that the Illinois Workers’ Compensation Act (Act) permitted a worker to recover for the loss of two members under section 8(e)(18) that provides for statutory permanent total disability as well as for any scheduled losses beyond those two losses compensated under that section. In other words, the injuries to the petitioner’s legs qualify for statutory permanent total disability under section (e)(18), however, that section does not exclude other “cases” of injury that might be subject to specific awards. In this case, the petitioner had both legs and both arms severely injured, the leg injuries led to the conclusion of a statutory permanent total disability. Although he was a permanent total because of the leg injuries, he was still entitled to recover permanent partial disability for the arm injuries. The court specifically noted that the Act does not allow a worker to avoid statutory permanent total disability by itemizing specific losses that otherwise would fall under that section. In other words, if a petitioner is permanently and totally disabled because of the statutory loss, the petitioner cannot avoid the statutory permanent total disability finding by simply calling those losses something else. Although it is difficult to understand why it would be in the petitioner’s best interest to do so in this case, he could not have avoided statutory permanent total disability by calling the leg injuries 100 percent of each leg. Given that permanent total disability is payable for the duration of the petitioner’s life, a hypothetical scenario can be envisioned where a petitioner who dies not long after permanency starts to accrue might make a claim for individual losses for each arm and each leg because of a permanency award under that scenario would be significantly higher than a permanency award for each arm and permanent total disability for the leg injuries that would end upon the petitioner’s death.

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V. VARIOUS PROCEDURAL ISSUES

A. Circuit Court Appeal Bond Must Be Exact

Securitas, Inc. v. Illinois Workers’ Compensation Comm’n, 395 Ill. App. 3d 1033, 918 N.E.2d 1291, 335 Ill. Dec. 478 (5th Dist. 2009) – The employer appealed from an order of the circuit court confirming a decision of the Illinois Workers’ Compensation Commission awarding benefits. The commission had set the bond for pursuing a circuit court appeal at $10,100.00. The employer submitted a bond of $10,000.00 rather than the full amount of $10,100.00. The Appellate Court held that the employer’s failure to submit the full amount of the bond as fixed by the commission was insufficient to vest the Appellate Court with jurisdiction. The error as to the amount of the bond was a matter of substance rather than form so that the employer’s position that it substantially complied with the bond amount was not acceptable for jurisdictional purposes. The court noted that filing an appropriate bond is a jurisdictional prerequisite to judicial review in a matter coming to the circuit court and the Appellate Court thereafter from the commission.

B. Time for Appeal and Attempt to Dismiss for Lack of Subject Matter Jurisdiction

Hagemann v. Illinois Workers’ Compensation Comm’n, No. 3-08-0989 WC, 2010 WL 305357 (3d Dist. Jan. 22, 2010) – The petitioner filed an application for adjustment of claim seeking workers’ compensation benefits for injuries he sustained while driving a semi-tractor trailer to haul grain. The grain farm for which he worked moved to dismiss the application, arguing that the business fell under the agricultural enterprise exemption of the Illinois Workers’ Compensation Act (Act). The arbitrator granted the motion to dismiss and the commission affirmed. The petitioner filed a circuit court appeal of the commission decision. The circuit court denied the farm’s motion to dismiss and allowed an interlocutory appeal to the Appellate Court. The Appellate Court held that the time to perfect the notice of appeal to the circuit court began with the receipt of notice of the commission decision and further held that a genuine issue of material fact precluded dismissal of the case for lack of subject matter jurisdiction. The employer contended that the appeal to the circuit court was not timely perfected because the summons lacked a return date and was not issued within 20 days after receipt of the decision. The court held that the Act did not require that summons be issued within 20 days after receipt of the decision and omission of a return date did not defeat the circuit court’s jurisdiction. In addressing the substance of the motion, the court held that there was a genuine issue of material fact as to whose grain the petitioner was hauling at the time of his injury and whether the petitioner was engaged in carriage that was covered by the agricultural enterprise exemption to the Workers’ Compensation Act. The existence of the genuine issue of material fact precluded dismissal of the petitioner’s appeal to the circuit court from the commission’s decision finding a lack of subject matter jurisdiction. The court noted that if the hauling was

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merely extraneous to the employer’s agricultural enterprise, the exemption did not apply, but if the hauling was fundamental to the agricultural enterprise, the exemption did apply. Given that the case should not have been dismissed for lack of subject matter jurisdiction, the Appellate court remanded the case to the commission for further proceedings.

C. Longshore v. Workers’ Compensation

National Maintenance & Repair v. Illinois Workers’ Compensation Comm’n, 395 Ill. App. 3d 1097, 918 N.E.2d 581, 335 Ill. Dec. 236 (5th Dist. 2009) – The employer was a repair facility for barges and tow boats that crossed the Mississippi River. The arbitrator found that the plant barge on which the petitioner was injured was a land based facility so that the Illinois Workers’ Compensation Commission had concurrent jurisdiction over the injury with the Longshore and Harbor Workers’ Compensation Act. The commission affirmed. The Appellate Court affirmed. The court held that the plant barge on which the petitioner was injured theoretically could be navigable on the Mississippi River, but was used as a land based structure so that the Illinois Workers’ Compensation Act was not pre-empted by the Federal Longshore and Harbor Workers’ Compensation Act. The Illinois Workers’ Compensation Commission therefore had concurrent jurisdiction over the claim and had authority to award the petitioner benefits for the injury. Although it was physically possible to move the plant barge by towing it to another location, the barge was fixed to the shore with mooring lines and a “spud” and received electricity from a land based source. Those facts caused the court to conclude that the barge was essentially a land based structure so that the federal act did not preempt the workers’ compensation act.

D. Declaratory Judgment on Coverage Issue

Country Mut. Ins. Co. v. D and M Tile, Inc., 394 Ill. App. 3d 729, 916 N.E.2d 606, 334 Ill. Dec. 191 (3d Dist. 2009) – The president of a corporation brought a workers’ compensation claim against his company. The workers’ compensation insurer brought a declaratory judgment action against the corporation and the president seeking to establish that it had no obligation to defend or indemnify the corporation against the president’s workers’ compensation claim. The circuit court awarded summary judgment to the insurer. The Appellate Court affirmed. The court found that the corporation president was a bona fide corporate officer who voluntarily opted out of coverage under the Workers’ Compensation Act. The issue of whether the president elected to withdraw himself from coverage was a question of law over which the circuit court had jurisdiction. The president filled out the policy application and listed his name and position as president in the portion of the application electing to withdraw officers of the corporation from coverage. The president signed the application. Finally, the president’s salary was not included in the policy’s premium calculation.

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E. Manifest Weight Argument Unsuccessful

R & D Thiel v. Illinois Workers’ Compensation Comm’n, No. 1-08-3666 WC, 2010 WL 480993 (1st Dist. Feb. 9, 2010) – The commission ordered the employer to pay for the petitioner’s medical services and to authorize payment for epidural injections and diagnostic arthroscopy of the petitioner’s knee. The circuit court affirmed the decision. The Appellate Court affirmed and remanded the case to the commission for further proceedings. At issue was a disagreement between the arbitrator and the commission on causation. The arbitrator found that there was no causal relationship between the petitioner’s work related accident and his condition of ill-being at the time of hearing, therefore the arbitrator declined to order the employer to pay for prospective epidural injections or the right knee arthroscopy. The commission reversed that finding and ordered the prospective treatment. The Appellate Court noted that the commission explained its decision with valid citations to facts in the record. The court noted that the issue of whether it might have reached the same conclusion as the commission in making credibility determinations different than those made by the arbitrator is not the test of whether the commission’s determination is supported by the manifest weight of the evidence. The appropriate test is whether there is sufficient evidence in the record to support the commission’s determination. While reasonable people could differ on interpretations to give to the evidence in the record, the Appellate Court concluded that the commission’s decision was based on facts in the record and therefore cannot be said to be against the manifest weight of the evidence.

F. Claim of Corporate Unfairness in Handling Claims Unsuccessful

Burzic v. Illinois Workers’ Compensation Comm’n, 391 Ill. App. 3d 202, 912 N.E.2d 187, 332 Ill. Dec. 1 (1st Dist. 2009) – The petitioner filed a petition for rule to show cause against the workers’ compensation carrier for allegedly practicing a policy of unfairness and handling in processing his claim for benefits under the Illinois Workers’ Compensation Act (Act). The commission and circuit court denied the petition for rule to show cause. The Appellate Court affirmed. A company-wide policy of unfairness in the handling of a multitude of claims is required before an insurer or its agent can be subject to discipline. The evidence presented by the petitioner failed to support his petition for rule to show cause against the claims manager and the insurance carrier for unreasonable or vexatious delay in payment of benefits due under the Act. The court noted that there was no evidence in the record that would have supported a conclusion that the claims manager was following any corporate policy in denying the petitioner future maintenance benefits or vocational rehabilitation services. Whether an employer’s conduct justifies the imposition of penalties for unreasonable or vexatious delay is ordinarily a factual question to be resolved by the commission. Penalties and attorney’s fees were not awarded by the arbitrator or commission.

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G. Chiropractor Is Not a Third-Party Beneficiary of Workers’ Compensation Policy

Martis v. Grinnell Mut. Reinsurance Co., 388 Ill. App. 3d 1017, 905 N.E.2d 920, 329 Ill. Dec. 82 (3d Dist. 2009) – A chiropractor who treated an injured worker filed a class action against the workers’ compensation insurer, asserting claims including breach of contract and unjust enrichment. The circuit court dismissed all of the claims with the exception of the breach of contract claim and certified the class as to that claim. The Appellate Court reversed. As a matter of first impression, the court held that the chiropractor was not a third-party beneficiary of the workers’ compensation insurance policy and had no right to enforce the policy by way of a breach of contract action. It must appear from the language of the contract that the contract was made for the direct and not merely incidental benefit of the third person in order for that person to be a third-party beneficiary. An intention to benefit a third party must be shown by an expressed provision in the contract identifying the third-party beneficiary by name or by description of the class to which the third party belongs. If a contract makes no mention of the chiropractor or the class to which he belongs, he is not a third-party beneficiary of the contract. Although there was a policy provision making the workers’ compensation insurer liable to “any person entitled to benefits” under the act, the provision did not identify any third parties. The court also noted that the employee and his personal representative or beneficiary were the only entities entitled to benefits under a workers’ compensation policy. Accordingly, the chiropractor was not legally a third-party beneficiary and could not pursue his claim against the workers’ compensation insurance carrier.

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Daniel R. Simmons - Partner

Dan concentrates his practice in the areas of workers' compensation and general insurance defense, including auto liability, premises liability and third party defense of employers. Since graduation from law school in 1984, he has spent his entire legal career at Heyl Royster in the Springfield office. He became a partner in 1996. Dan has extensive litigation experience. He has taken numerous cases to jury verdict both in state and federal courts. Additionally, he has arbitrated hundreds of workers' compensation claims before the Illinois Workers' Compensation Commission. Dan appreciates that his client’s goal is to conclude claims in the most efficient, economical means possible and strives to achieve that goal through motion practice, settlement or trial. Dan is a frequent author and lecturer on civil liability and workers' compensation issues. His speaking is both to clients and to Illinois attorneys for continuing legal education. Dan continues to provide writing and speaking services to the Property Loss Research Bureau/Liability Insurance Research Bureau's annual conference that is routinely attended by over 2,500 senior claims professionals from around the United States. Dan is a past president and program director of the Lincoln-Douglas American Inn of Court. The Inn is designed to promote legal education, civility and collegiality among members of the bar.

Professional Recognition Martindale-Hubbell AV Rated

Professional Associations Lincoln-Douglas American Inn of Court (past

president and program director) American Bar Association Illinois State Bar Association Sangamon County Bar Association Central Illinois Claims Adjusters' Association



Education Juris Doctor, University of Iowa, 1984 Bachelor of Arts (Magna Cum Laude) - Political

Science, Speech and Humanities, Augustana College, 1981


Documents

figHting tHe Strategic battle to win tHe war workers ... · 15567848_1.DOCX . A-2 Kevin J. Luther - Partner Kevin has spent his entire legal career at Heyl Royster, beginning in 1984