WCLA MCLE 12-6-12

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WCLA MCLE 12-6-12
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W.B. Olson: Voc Rehab & FCE’s
Thursday December 6, 2012
12:00 pm to 1:00 pm
James R. Thompson Center , Chicago, IL
1 Hour General MCLE Credit
Richard E. Aleksy; Corti, Aleksy & Castaneda
Daniel J. Ugaste; Nyhan, Bambrick, Kinzie &
Lowry
Bonus Issue
TTD Stipulation Binds Respondent on Causation
• Hector Fontalvo v. Food Team, 12 IWCC 565
• The Commission finds Petitioner's current cervical condition is causally
related to the May 31, 2006 work accident. The Commission reached this
decision based on a couple of different factors. One, the Commission
notes that the parties stipulated on the Request for Hearing form that
Petitioner was temporarily totally disabled from June 1, 2006 through
October 22, 2009 for a total of 176-4/7 weeks. Pursuant to the Appellate
Court's holding in Walker, 345 Ill. App. 3d 1084 (2004), the Commission
holds the parties and the Commission are bound by the previous
stipulation and the Commission cannot ignore or change the stipulation
entered into by the parties. Furthermore, any subsequent activities or lack
thereof by the Commission and the parties has not negated the earlier
stipulation of temporary total disability benefits entered into by the
parties. Additionally, since there cannot be an award on an underlying
benefit without first finding in favor of the threshold issue of causation,
the Commission finds based on the stipulation that Petitioner's cervical
condition is causally related to the May 31, 2006 work accident.
Vocational Rehabilitation
Section 8(a)
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The employer shall also pay for treatment, instruction and training necessary
for the physical, mental and vocational rehabilitation of the employee,
including all maintenance costs and expenses incidental thereto. If as a result
of the injury the employee is unable to be self-sufficient the employer shall
further pay for such maintenance or institutional care as shall be
required…Any vocational rehabilitation counselors who provide service under
this Act shall have appropriate certifications which designate the counselor as
qualified to render opinions relating to vocational rehabilitation. Vocational
rehabilitation may include, but is not limited to, counseling for job searches,
supervising a job search program, and vocational retraining including
education at an accredited learning institution. The employee or employer
may petition to the Commission to decide disputes relating to vocational
rehabilitation and the Commission shall resolve any such dispute, including
payment of the vocational rehabilitation program by the employer. The
maintenance benefit shall not be less than the temporary total disability rate
determined for the employee. In addition, maintenance shall include costs and
expenses incidental to the vocational rehabilitation program. (Underlined
portions added by PA94-277, eff. 7-20-05, applicable to injuries after 2-1-06).
FCE & Sections 12 & 19(c)
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Sec. 12. An employee entitled to receive disability payments shall be required, if
requested by the employer, to submit himself, at the expense of the employer, for
examination to a duly qualified medical practitioner or surgeon selected by the
employer, at any time and place reasonably convenient for the employee, either within
or without the State of Illinois, for the purpose of determining the nature, extent and
probable duration of the injury received by the employee, and for the purpose of
ascertaining the amount of compensation which may be due the employee from time
to time for disability according to the provisions of this Act. An employee may also be
required to submit himself for examination by medical experts under subsection (c) of
Section 19.
Sec. 19(c) (1) At a reasonable time in advance of and in connection with the hearing
under Section 19(e) or 19(h), the Commission may on its own motion order an impartial
physical or mental examination of a petitioner whose mental or physical condition is in
issue, when in the Commission's discretion it appears that such an examination will
materially aid in the just determination of the case. The examination shall be made by
a member or members of a panel of physicians chosen for their special qualifications
by the Illinois State Medical Society. The Commission shall establish procedures by
which a physician shall be selected from such list.
Petitioner Chooses Voc Rehab
• David Hir v. City of Joliet, 04 IIC 0614:
“Petitioner may accept the assistance of a
vocational counselor chosen by Respondent,
or he may select a rehabilitation provider of
his own choosing. Costello v. Baxter
Healthcare, 95 IIC 451; see Thut v. Mike
Nicholas, Inc., 89 IIC 392; Avenarius v.
Consolidated Freightways, 86 IIC 1498.”
IME & FCE
• Walden Pomelow v. Blaw-Knox, 07 IWCC 1113: Respondent
filed Motion to Suspend Compensation Benefits and to
Continue Trial Setting for failure to attend FCE ; denied by
Arbitrator; Commission affirmed denial: “Under Section 12,
Petitioner was required to submit himself to a qualified
medical practitioner…not to an industrial rehabilitation
consultant…The Commission concludes that Respondent
did not have the right to terminate Petitioner’s benefits
upon Petitioner’s refusal to attend a functional capacity
evaluation”
• Contrary result: Sandra Rainford v. Jewel, 07 IWCC 1624:
TTD terminated by Commission on date when IME Dr.
Kelikian had recommended FCE but Petitioner refused to
do it
Craig Kolin v. W.B. Olson
06WC026612
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DA 2-1-06
52 year old construction laborer
2 x’s SX right knee by Dr. Chan & 2nd opinion from Dr. Bush-Joseph
5-16-07 FCE = “light medium,” then aborted work hardening
1st IME Dr. Tonino: released with FCE restrictions
3-21-08: 1st 19(b): accommodated job offer was inappropriate (two hours
driving each way)
Petitioner begins Voc Rehab with Tom Grzesik
Dr. Bush-Joseph recommends knee replacement, Dr. sporer does it
6-5-09 FCE = “light medium”
Got CDL, truck driving job fell through for insurance reasons
Continued Voc Rehab with Grezesik, 80 resumes per month
2nd IME Dr. Tonino: MMI & recommended FCE
Respondent Voc expert Daniel Minnich, refused permission, but
formulated plan
Craig Kolin v. W.B. Olson
06WC026612
Arbitrator’s Decision
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5-19-10
Petitioner was credible
Grzesik was credible
Minnich is “less than credible”
Grzesik was “appropriate…The Commission in the past has
found that the right to select a voc rehab specialist is akin
to selecting a medical provider and that the petitioner’s
choice is the appropriate one.” Citing Roper Contracting,
349 Ill.App.3d 500 (2004)
• Award for “vocational rehabilitation expenses due and
owing to Mr. Grzesik”
• Award for maintenance
Craig Kolin v. W.B. Olson
06WC026612
Commission Decision
• 11 IWCC 0126; 2-8-11; A & A with clarifications
• The Arbitrator correctly stated that Petitioner “has the right
to select his vocational rehabilitation counselor under
Section 8(a),” but distinguishes Roper
• Commission finds Petitioner to be “credible overall” despite
surveillance
• Commission finds Minnich to “less than credible”
• Commission finds it “unnecessary and inappropriate to
order either a repeat FCE or formal voc rehab”
• Dissent: Is Voc Rehab necessary? To be effective, must
know true capabilities and new FCE should be done
• Circuit Court confirms
W.B. Olson, Inc. v. IWCC
2012 IL App (1st) 113129WC
Voc Rehab
• Filed 11-5-12
• Respondent argues that “appropriateness of Voc Rehab is contrary to
manifest weight”
• NO. Section 8(a) is “flexible” and is not limited to “formal training” even
though Respondent argued its plan was “more focused” and would have
resulted in a “more expedient return to work”
• “In light of our resolution of this issue, we need not address the claimant’s
argument that, as a matter of law, Section 8(a) confers upon claimants the
right to select their vocational rehabilitation provider and precludes
employers from dictating that choice.”
• Respondent “next argues that the Commission erred in requiring it to pay
for the services rendered by Grzesik.”
• NO. “The fact that the Commission determined that future vocational
rehabilitation were not necessary does not negate the legal or factual
basis for the award of payment of reasonable and necessary services
previously rendered.”
W.B. Olson, Inc. v. IWCC
2012 IL App (1st) 113129WC
FCE
• Respondent “also challenges the Commission’s refusal to
order that the claimant submit to an FCE, as recommended
by Dr. Tonino.”
• NO. Statutory construction=matter of law=de novo
• “Thus, the explicit language of section 12 expressly limits
the right of an employer to demand an examination by a
medical practitioner or surgeon.” PT is not medical
practitioner. Dorland’s Illustrated Medical Dictionary.
• Nor section 19(c): similarly limited to a panel of
“physicians”
• No due process violation “merely because a section 12
examiner lacks authority to require additional FCE testing”
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