WCLA MCLE 12-1-11
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2011 Year End CLE Wrap Up & Review
Thursday December 1, 2011
12:00 noon to 1:00 pm
James R. Thompson Center Auditorium,
Chicago, IL
• 1.0 Hour General MCLE Credit
2012 WCLA MCLE SCHEDULE
• One Hour Lunch Time Programs: January 31,
2012; February 29, 2012; March 29, 2012;
April 17, 2012; May 16, 2012; June 21, 2012;
July 10, 2012; August 8, 2012; September 13,
20102; October 2, 2012; November 7, 2012;
December 6, 2012
• 2012 WCLA Medical Seminar in September
• 2012 Appellate Court Luncheon?
• Two 3 hour ETHICS & PROFESSIONALISM
Bootcamps?
Traveling Employees
January 2011
• Cox v. IWCC, 406 Ill.App.3d 541 (2010): Appellate
Court reverses IWCC decision that Petitioner was not
in the course of his employment; traveling employee
in company vehicle had re-entered course of his
employment even if personal trip to bank was
deviation
• Johnson v. IWCC, No. 2-10-0148WC, 8-15-2011:
Appellate Court says Will County sheriff was back “in
the course of his employment” when he was
responding to dispatch in his patrol car, after leaving
county to perform personal errand (Commission had
denied benefits 2-1 for personal deviation) DE NOVO!
Medical Bills
February 2011
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Tower Automotive v. IWCC: 407 Ill.App.3d 427 (2011): “remand this matter to the
Commission with directions to award the claimant the amount actually paid to the
providers of medical services rendered to him as a result of his injuries of June 30,
2005”
ELVIS RIDGEWAY v. TLC, INC., 11 IWCC 920: This award is not subject to the fee
schedule based on the Appellate Court's recent holding in Tower Automotive v.
IWCC …the Court held that the amendatory change to § 8(a) giving rise to the fee
schedule (i.e., P.A. 94-0277) applies to claims for accidents occurring on or after
February 1, 2006. Petitioner's accident occurred before February 1, 2006.
CAROLYN OCCHUIZZO v. JOLIET PUBLIC SCHOOL DISTRICT 86, 11 IWCC 0190: The
Commission notes that a very recent decision by the Appellate Court supports
Respondent's conclusion that it should only be held liable for the amount paid by
Medicare for Petitioner's treatment. Tower Automotive …The Commission notes
that the Court limited this decision to workers' compensation cases arising from
accidents that occurred prior to the implementation of the fee schedule. Because
the case at hand involves an accident that occurred on January 31, 2001, the
Commission finds that Respondent is only required to pay the $ 38,511.62 paid by
Medicare to Petitioner's medical providers.
Medical Bills
February 2011
• Award for More than Negotiated Rate? No?
DONNA J. THORPE v. PALOS COMMUNITY HOSPITAL, 11 IWCC 1041; Following
Arbitrator’s finding AFFIRMED: “The charges for the second opinion appointment
with Dr. Schlenker on June 5, 2008 (PX5), the charges for the surgery at Palos
Community Hospital on July 7, 2008 and the charges from Palos Anesthesia
Associates and Associated Cardiovascular were incurred and paid, at the
negotiated rate, by the Petitioner's husband's group medical insurance (BC/BS of
Illinois) in the amount of $ 10,250.57. No objections were made with regard to the
amounts paid. The Arbitrator finds that the Petitioner has sustained her burden of
proof that these medical charges constitute reasonable, necessary and causally
related to the accident of August 21, 2007 and notes that the treatment dates on
the account statement correspond to the medical records for treatment provided
by Dr. Schlenker. Moreover, the hospital and related surgical charges correspond to
the surgery that Dr. Chow performed. Accordingly, the Arbitrator concludes that
these amounts, paid at the negotiated rate and submitted at arbitration as
Petitioner's Exhibit # 7, constitute reasonable and necessary medical treatment
pursuant to Section 8(a) of the Act.”
Arising Out Of
March 2011
• MWRD v. IWCC, 407 Ill. App. 3d 1010 (2011): “Under the "street risk"
doctrine, where the evidence establishes that the claimant’s job requires
that she be on the street to perform the duties of her employment, the
risks of the street become one of risks of the employment, and an injury
sustained while performing that duty has a causal relation to her
employment. Potenzo… In such a circumstance, it is presumed that the
claimant is exposed to risks of accidents in the street to a greater degree
than if she had not been employed in such a capacity, and the claimant
will be entitled to benefits under the Act.
• STANISLAWA MIYNARCZTK v. SOPHIE OBROCHTA, 11 IWCC 0747: Potenzo
cited by Commission; fall by traveling cleaning lady in her driveway
returning to company vehicle after lunch break not compensable
48 Hour Rule
April 2011
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Mulligan v. IWCC, 408 Ill.App.3d 205 (2011): Respondent’s evidence (Dr. Kornblatt
records review & Dr. Hopkinson IME) barred as violating 48 hour rule of Section 12
because Respondent failed to turn over reports prior to “set for hearing”
(bifurcated over 2 years)
Sandra Lindsey v. American Liberty School Bus, 11 IWCC 0993: With respect to the
issue of EVIDENCE, the Arbitrator concludes that Petitioner's objection to the
second report of respondent's examining physician and any testimony related to
that report must be upheld. Petitioner's attorney stated that he never received a
copy of Dr. Troy's second report prior to the deposition. Respondent's attorney
appeared for her partner at the last minute due to serious illness and could not
provide proof that the report had been tendered to Petitioner's attorney 48
hours prior to the deposition. The Arbitrator must therefore sustain Petitioner's
objection pursuant to Section 12 of the Act as recently discussed in Mulligan…The
Arbitrator notes that despite Petitioner's attorney's objection, he nevertheless
questioned both Petitioner and Dr. Silver about the second examination. The
Arbitrator finds it difficult to believe there could be any prejudice or surprise to
Petitioner after reading Dr. Troy's initial examination report.
City of Chicago/Baumgardner
May 2011
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City of Chicago v. IWCC, 409 Ill.App.3d 258 (2011): “The employer maintains that
the Act prohibits two permanency awards for the same current condition of illbeing even if that current condition of ill-being is the result of two separate
industrial accidents. The employer presents a question of statutory interpretation,
which is reviewed de novo…Based upon the foregoing, we find that the claimant is
not entitled to an award under both section 8(d)(1) and section 8(d)(2) for the
same condition of ill-being.”
Baumgardner v. IWCC, 409 Ill.App.3d 274 (2011): Petitioner “contends that the Act
does not preclude a scheduled PPD award where wage-differential benefits have
been granted under section 8(d)(1) based on a second, aggravating injury to the
same body part prior to the arbitration hearing on both claims…We note that the
claimant asserts that, because the facts presented are undisputed, the
Commission's finding with regard to permanency presents a question of law
subject to de novo review. We disagree…We cannot say that the Commission's
denial of a scheduled PPD award under section 8(e) for the April 1996 injury is
against the manifest weight of the evidence.”
HB 1698
June 2011
• PA97-0018, effective 6-28-11, but know your
applicability dates! (e.g. TPD gross 6-28-11?
But AMA Guides 9-1-11)
• Know your new zones! (Cook County,
Wheaton, Zones 1-5) But be aware that 19(b)’s
will follow Arbitrator, not venue!
• Check the web site regularly! www.iwcc.il.gov
• Join the group email news service! Register at
http://www.iwcc.il.gov/news.htm
AMA Guides
August & September 2011
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Sec. 8.1b. Determination of permanent partial disability. For accidental injuries that occur
on or after September 1, 2011, permanent partial disability shall be established using the
following criteria:
(a) A physician licensed to practice medicine in all of its branches preparing a permanent
partial disability impairment report shall report the level of impairment in writing. The
report shall include an evaluation of medically defined and professionally appropriate
measurements of impairment that include, but are not limited to: loss of range of motion;
loss of strength; measured atrophy of tissue mass consistent with the injury; and any other
measurements that establish the nature and extent of the impairment. The most current
edition of the American Medical Association's "Guides to the Evaluation of Permanent
Impairment" shall be used by the physician in determining the level of impairment.
(b) In determining the level of permanent partial disability, the Commission shall base its
determination on the following factors: (i) the reported level of impairment pursuant to
subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at
the time of the injury; (iv) the employee's future earning capacity; and (v) evidence of
disability corroborated by the treating medical records. No single enumerated factor shall
be the sole determinant of disability. In determining the level of disability, the relevance and
weight of any factors used in addition to the level of impairment as reported by the
physician must be explained in a written order.
AMA Guides
August & September 2011
• Impairment DOES NOT EQUAL disability! “The
relationship between disability and
impairment remains both complex and
difficult, if not impossible, to predict.” AMA
Guides, pg. 5.
• “Although treating physicians may perform
impairment ratings on their patients, it is
recognized that these are not independent…”
AMA Guides, pg. 23.
AMA Guides
August & September 2011
• Is AMA Impairment Rating MANDATORY? Petitioner’s BOP?
• What does “shall” mean? Mandatory or directory? Nelson v.
IWCC, 194 Ill.App.3d 10 (1990); O’Brien v. White, 219 Ill.2d 86
(2006): mandatory-directory dichotomy concerns the
consequences of failure to fulfill an obligation; legislature’s
intention to make provision mandatory is judged primarily by
whether there is an explicit, specific penalty attached to not
fulfilling obligation
• Who should do AMA Impairment rating?
– Respondent beware? You wanted it?
– Petitioner beware? Better to fight with “(v) evidence of disability”?
• Does Section 12 apply? 48 hour rule? Hearsay? Yes, to all?
Medical Treatment
October 2011
• Workers' Compensation Preferred Provider Program Administrator
List: Approved Companies: No Companies have been approved at
this time
http://insurance.illinois.gov/Consumer/approvedWCPPPList.pdf
• PPP Notices: IWCC-Approved PPP Notification Form (required);
General Notification Form (optional); Workplace Notice (required)
• SHANNA CHRISTENSEN v. THE ANIMAL HOSPITAL OF GURNEE, 11
IWCC 1023: Petitioner exceeds two choices; What is emergency
treatment? “Does not count as Petitioner's second choice of
provider. In so finding, we note that Petitioner was still in the acute
phase of her work injury. She sought emergency treatment at Lake
Forest Hospital only four days after her accident for "sharp pain" in
her left elbow”; some treatment found to be “unreasonable”; Does
this trigger NONPAYMENT of Sec. 8.2(e)? “excessive or
unnecessary”; Applicability?
Utilization Review
November 2011
• ROBERT URBAN v. DOMINICK‘S, 11 IWCC 1025:
We find the opinions of Dr. Nam and Dr. Malek to be more reliable
than the opinions of Dr. Wehner or Dr. Casterjon's utilization
reviews…We find Petitioner credibly testified that his shoulder
symptoms improved "rather nicely and speedily" after he
underwent trigger point injections and physical therapy…The
treatment records from Dr. Nam and Dr. Malek similarly
demonstrate that Petitioner had ongoing symptoms that did not
respond to the brief course of treatment at Concentra, but resolved
with injections and physical therapy as recommended by both Dr.
Nam and Dr. Malek…We are similarly unpersuaded by Dr.
Castrejon's utilization review because he did not review all of
Petitioner's treatment records.