Workers’ Compensation Lawyers Association
MCLE
• Amputations: Definitions, Accrual,
Payment & Penalties
• Thursday March 25, 2010
• Thomas R. Lichten (Petitioner)
• Richard S. Zenz (Respondent
• James R. Thompson Center Auditorium
• Chicago, IL
• 1 hour general MCLE credit
What Are The Issues?
• When is there an Amputation?
• Other Special Issues? (Medical, 2nd Injury Fund,
Attorneys Fees)
• Are There Special Rates That Apply?
• When Do Amputations Accrue? (Greene Welding)
• When Should Respondents Pay? (GW)
• Do Amputations Present Penalty Situations? (GW)
Section 8(e)8
Fingers, Thumbs & Toes
• 8. The loss of the first or distal phalanx of the thumb or of
any finger or toe shall be considered to be equal to the
loss of one-half of such thumb, finger or toe and the
compensation payable shall be one-half of the amount
above specified. The loss of more than one phalanx shall
be considered as the loss of the entire thumb, finger or
toe. In no case shall the amount received for more than
one finger exceed the amount provided in this schedule
for the loss of a hand.
Section 8(e)9
Hand
• The loss of 2 or more digits, or one or
more phalanges of 2 or more digits, of a
hand may be compensated on the basis of
partial loss of use of a hand, provided,
further, that the loss of 4 digits, or the loss
of use of 4 digits, in the same hand shall
constitute the complete loss of a hand.
• What about the FOOT? Section 8(e)11?
Section 8(e)10
Arm
•
•
“Where an accidental injury results in the amputation of an arm below the
elbow, such injury shall be compensated as a loss of an arm. Where an
accidental injury results in the amputation of an arm above the elbow,
compensation for an additional 15 weeks(*) or an additional 17 weeks (if the
accidental injury occurs on or after February 1, 2006) shall be paid, except
where the accidental injury results in the amputation of an arm at the
shoulder joint, or so close to shoulder joint that an artificial arm cannot be
used, or results in the disarticulation of an arm at the shoulder joint, in which
case compensation for an additional 65 weeks (*) or an additional 70 weeks
(if the accidental injury occurs on or after February 1, 2006) shall be paid.
* “If the accidental injury occurs on or after the effective date of this
amendatory Act of the 94th General Assembly but before February 1, 2006”
or before 7-20-05 and between 11-16-05 and 2-1-06
Section 8(e)12
Leg
•
•
Where an accidental injury results in the amputation of a leg below the
knee, such injury shall be compensated as loss of a leg. Where an
accidental injury results in the amputation of a leg above the knee,
compensation for an additional 25 weeks (*) or an additional 27 weeks (if
the accidental injury occurs on or after February 1, 2006) shall be paid,
except where the accidental injury results in the amputation of a leg at the
hip joint, or so close to the hip joint that an artificial leg cannot be used, or
results in the disarticulation of a leg at the hip joint, in which case
compensation for an additional 75 weeks (*) or an additional 81 weeks (if
the accidental injury occurs on or after February 1, 2006) shall be paid.
* “If the accidental injury occurs on or after the effective date of this
amendatory Act of the 94th General Assembly but before February 1, 2006”
or before 7-20-05 and between 11-16-05 and 2-1-06
Section 8(e)13
Eye
• Where an accidental injury results in the enucleation of
an eye, compensation for an additional 10 weeks (*) or
an additional 11 weeks (if the accidental injury occurs on
or after February 1, 2006) shall be paid.
• * “If the accidental injury occurs on or after the effective
date of this amendatory Act of the 94th General
Assembly but before February 1, 2006” or before 7-2005 and between 11-16-05 and 2-1-06
What is an “Amputation”?
• Edward E. McMorran & Co., 290 Ill. 569 (1919): “It cannot be
reasonably said that the loss of one-sixteenth of an inch of the first
joint of a finger is the loss of the first phalange or that the legislature
so intended…We are of the opinion…that the Industrial Commission
erred in making an award for 17 1/2 weeks, at six dollars per week,
for permanent partial disability”
• Macon County Coal Company, 367 Ill. 458 (1937): 50% loss for
“One third of the bone of the distal phalange was removed by the
doctor and the finger at present is three-eighths of an inch shorter
than the corresponding finger on his left hand…The findings of the
arbitrator and Industrial Commission that the injury amounted to the
loss of the first phalange of the second finger were well within the
range of the evidence”
What is an “Amputation”?
Colbert v. GMP-Genpak, 07IWCC0309
• “The real issue in controversy is whether petitioner sustained a 50%
statutory loss of the right long finger due to amputation pursuant to
Section 8(e) of the Act. Upon review of Edward E. McMorran & Co.
v. Industrial Commission…and Macon County Coal Co. v. Industrial
Commission, 367 Ill. 458, …the Arbitrator concludes that petitioner
sustained extensive trauma to the right middle finger, to the extent of
a 50% statutory loss. Relying upon both Dr. Dillon and Dr. Levin, at
the very least, petitioner lost 3 millimeters of bone. Lastly, the
Arbitrator determines that the appearance of the right distal phalanx
is approximately 1/2 the size of the left distal phalanx. Thus, the
respondent shall pay the petitioner 17.5 weeks of permanent partial
disability at the rate of $ 542.17, as provided in section 8(e) of the
Act, for a 50% statutory loss of a right middle finger.”
• 3 mm = .118 inches = .944/8 of an inch
Section 7(f)
Naming the 2nd Injury Fund
• The State Treasurer, or his duly authorized representative, shall be
named as a party to all proceedings in all cases involving claim for
the loss of, or the permanent and complete loss of the use of
one eye, one foot, one leg, one arm or one hand.
• The State Treasurer or his duly authorized agent shall have the
same rights as any other party to the proceeding, including the right
to petition for review of any award. The reasonable expenses of
litigation, such as medical examinations, testimony, and transcript of
evidence, incurred by the State Treasurer or his duly authorized
representative, shall be borne by the Second Injury Fund.
Section 16a(F)
Attorneys Fees
• (F) In the following cases in which there is no dispute
between the parties as to the liability of the respondent
to pay compensation in a timely manner or in the
proper amount and there is no dispute that the accident
has resulted in:…
(3) the amputation of a finger, toe, or member;
or…
(5) the enucleation of or 100% loss of vision of an
eye; the legal fees, if any, for services rendered are to be
fixed by the Illinois Workers' Compensation Commission
at a nominal amount, not exceeding $100.
Section 8(a)
• Where the accidental injury results in the amputation
of an arm, hand, leg or foot, or the enucleation of an
eye, or the loss of any of the natural teeth, the employer
shall furnish an artificial of any such members lost or
damaged in accidental injury arising out of and in the
course of employment, and shall also furnish the
necessary braces in all proper and necessary cases. In
cases of the loss of a member or members by
amputation, the employer shall, whenever necessary,
maintain in good repair, refit or replace the artificial limbs
during the lifetime of the employee.
Section 8(b)4
Maximum Rate
• Different from regular PPD Max
• From July 1, 1977 and thereafter such maximum weekly
compensation rate... for amputation of a member or
enucleation of an eye under paragraph (e) of this
Section shall be increased to 133-1/3% of the State's
average weekly wage in covered industries under the
Unemployment Insurance Act.
• Modern Drop Forge, 284 Ill.App.3d 259 (1996): 60% up
to the TTD Max; so, rate is 60%; max is TTD max
Section 8(b)4.1
Minimum Rate
• 4.1. Any provision herein to the contrary notwithstanding,
the weekly compensation rate for compensation
payments under subparagraph 18 of paragraph (e) of
this Section and under paragraph (f) of this Section and
under paragraph (a) of Section 7 and for amputation of
a member or enucleation of an eye under paragraph
(e) of this Section, shall in no event be less than 50% of
the State's average weekly wage…
• Accidents on and after 2-1-06; See Sec. 95, PA94-277
• Not limited to AWW
• 50% of thumb, finger or toe(?)
Applicability of Section 8(b)4.1
Minimum Rate
• PA 94-277: “Section 95. Applicability. The
amendatory changes to the first paragraph
of subsection (f) of Section 7 relating to
payment for burial expenses, subsections (a)
and (b) of Section 8, and subsections (h),
(k), and (l) of Section 19 of the Workers'
Compensation Act and subsections (k) and
(k-1) of Section 19 of the Workers'
Occupational Diseases Act apply to
accidental injuries or diseases that occur
on or after February 1, 2006.”
What is a “Member”?
• No definition in Act
• Lippens v. AJL, 91IIC25: finger is a member; Porter v.
Selectability, 96IIC0320, finger is not a member; (66 2/3%)
• No cases since Modern Drop Forge?
• Websters’ defines toe and finger as a “member” of the hand
or foot
• Section 8(e): “listed amounts apply to … the loss of…or
complete loss of use of the member specified”: thumb,
fingers, toes are specified in scheduled losses
• Section 8(e)17 (credit for prior loss): “the loss by amputation
or partial loss by amputation of any member, including hand,
arm, thumb or fingers, leg, foot or any toes”
Greene Welding
919 N.E.2d 1129, 336 Ill.Dec.204 (filed 12-23-09)
Arbitration
• Petitioner Bobby Kinnaird (06WC08348)
• DA 12-9-05: “(U)ndisputed…amputation injuries to his right ring and
right middle fingers.”
• Arbitrator White 2-2-07: “The Arbitrator has reviewed the medical
records … and finds that Petitioner did suffer loss of bone to the
right middle finger into the distal phalanx which results in a statutory
award of 50% loss of use of the middle finger…(17.5 wks)…the
Petitioner suffered bone loss below the distal phalanx resulting in his
entitlement to 100% loss of use of the right ring finger (25 wks).”
• Arbitrator: “The respondent shall pay the petitioner the sum of
$200.69 per week …” (Note before applicability of new minimum)
• Arbitrator: “Petition for Penalties and Fees is denied.”
Greene Welding
919 N.E.2d 1129, 336 Ill.Dec.204 (filed 12-23-09)
Commission
• Commission (Lamborn, Sherman, Dauphin) 08IWCC0812, 7-3-08:
“The operative report from December 9, 2005 (the date of accident),
noted complete amputation right ring finger at the distal phalanx
level and right middle finger debridement of skin, soft tissue and
bone. The pre-operative diagnosis was noted as partial amputation
of the right ring finger and partial amputation of the right middle
finger.”
• “Respondent contends that payment is not due regarding a statutory
amputation until the claimant has reached MMI. The Appellate Court
in Lester v. Industrial Commission, 256 Ill. App.3d 520…(1993),
stated that it was the intent of the legislature that an employee who
suffers amputation should be compensated immediately when no
dispute exists as to the compensability of the accident. Here there
was a clear statutory amputation injury with no dispute…”
Greene Welding
919 N.E.2d 1129, 336 Ill.Dec.204 (filed 12-23-09)
Commission
•
•
•
“In the case at hand, there are clear, unquestionable statutory
amputations and Petitioner had returned to light duty work almost a
month and a half before the first check was issued to Petitioner (and
about 80 days from the accident date). This is consistent with a recent
Commission decision of Lierly v. Methode Electronics, 06 IWCC 0901
where payment of statutory payment of PPD was found unreasonable
within 60 days. The Commission finds that Respondent did not pay any
statutory benefits until after Petitioner had retained counsel.”
“(T)he appropriate benefit rate to be $ 200.47 per week with the total
accrued, towards the statutory loss, during this time being $2,322.27.
The Commission finds there was an unreasonable and vexatious
delay…Respondent's failure to pay these bills ($782) unreasonable and
vexatious.”
19(k): $1552.14 (50% accrued + medical); and Section 16 fees:
$620.85 (20% of accrued + medical)
Greene Welding
919 N.E.2d 1129, 336 Ill.Dec.204 (filed 12-23-09)
Appellate Court
• App. Ct. (unanimous): “Employer maintains that the court in Lester
was unclear as to when payment of statutory amputation benefits
were to be paid. We find the Lester court's holding to be clear.
Statutory amputations benefits are to be paid ‘immediately’ and
‘promptly.’”
• “In Modern Drop Forge Corp. v. IC 284 Ill. App. 3d 259…(1996), the
court cited the same passage from Lester cited above in affirming
the Commission's finding of unreasonable and vexatious delay even
where the employer's rationale for delaying payment was to see if
the claimant would elect a wage-differential remedy under section
8(d)(1) of the Act instead of the section 8(e) amputation benefit…
even if the claimant later elected a wage-differential remedy, any
amount he previously received under section 8(a) would be offset
against the future award.”
Greene Welding
919 N.E.2d 1129, 336 Ill.Dec.204 (filed 12-23-09)
Appellate Court
• “Here, the employer maintained before the Commission that it
delayed payment of section 8(e) benefits until claimant achieved
maximum medical improvement (MMI). The Commission rejected
that as a justification, noting that there was no logical reason to
withhold the statutory amputation benefit until claimant reached
MMI…employer abandons the MMI argument and argues that it did
not have sufficient guidance from the court or the Commission to
know when it should pay the statutory amputation benefit.”
• “We reject any implication that a grace period exists…a bright-line
test for payment of such benefits. Where there is no dispute
regarding whether a claimant's amputation injuries arose out of
and in the course of his or her employment, statutory benefits
for amputation are to be paid no later than the time at which the
employer reasonably knows the extent of the amputation and is
capable of calculating the appropriate average weekly wage.”
Greene Welding
919 N.E.2d 1129, 336 Ill.Dec.204 (filed 12-23-09)
Appellate Court
• “The Commission held that benefits were unreasonably and
vexatiously delayed when they were not paid until after claimant
sought assistance of legal counsel to secure the payment of those
benefits. It also noted that at least 80 days had passed since the
accident, and there was no dispute that claimant's injuries arose out
of and in the course of his employment. Further, employer had made
no showing that the delay was justified. We cannot say that the
Commission's finding that claimant was entitled to penalties and
attorney fees was against the manifest weight of the evidence.”
• Petitioner sought Rule 375(b) sanctions BUT: “We find that although
the employer's argument is unpersuasive, it is not so lacking in
foundation in law and evidence as to merit sanctions.”