WCLA MCLE 11-12-12
• AMA Guides: Illinois Workers’ Compensation
Commission Decisions
• Monday November 12, 2012
• Springfield Hilton; Springfield, IL
• 12 noon to 3pm
• 3 hours general CLE credit
Commission Decisions from 1981-2011
• 1979-1980 General Assembly debated what standards
the Commission should use to determine permanency;
All, including medical guidelines were rejected
• HB 3250: Starting January 1, 1981, all decisions of the
Commission shall set forth in writing the reasons for
the decision
• Until September 1, 2011, llinois Workers’
Compensation Act remained “silent” as to how the
Commission was supposed to determine permanency
when the injury was less than 100% loss of use of the
body part
Factors to Be Considered in PPD
81 IIC 001
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Occupation
Age
Inability to engage in certain kinds of work or activities
Skill
Training
Pain
Stiffness
Spasms
Limitation on motion
Tenderness
Atrophy
Lack of coordination
Soreness
Diminished reflexes
Dizziness
Other relevant criteria
“PHYSICAL IMPAIRMENT IS THE FIRST CONSIDERATION”
What the Commission Says About PPD
The permanent results from various types of injuries are not the same in each case
nor are they static over time. Not only do permanent results of particular
disabilities differ among individuals (some heal better than others, some have
sufficient training and ability to return to work where others can not) but the
results of injuries also change over time as medical technology and society
changed. The availability of work that can be done by people with physical
limitations has increased as medical and industrial technology has changed.
Availability and expertise of physical and vocational rehabilitation experts is
improving, and employers are increasingly willing to provide rehabilitation or
different work to employees with limitations due to industrial injuries. All of these
factors must be reflected in Commission decisions. As reality further changes,
parties must bring in evidence of relevant medical, technological and social
conditions to insure that Commission decisions accurately reflect them. (page 5)
820 ILCS 305/8.1b
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.
Commission Decisions Without
Impairment Ratings
Jaelene Bryan v. Pinckneyville Correctional Center 11WC047483
Terrence Davis v. City of Springfield 12WC009378
Terry Wadkins v. Pinckneyville Correctional Center 12WC002866
Cheryl Edwards v. State of Illinois (Murray Center) 12WC007449
Ricky Belton Lee, Jr. v. Chester Mental Health Center 11WC041595
Derek Richardson v. Tamms Correctional Center 12WC008263
Scott Day v. City of Bloomington 11WC047768
Jaelene Bryan v. Pinckneyville Correctional Center
11WC047483
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Date of Arbitration: 02/22/2012 (Granada)
Accident: 12/01/2011
35 year old correctional Officer
Foot caught in phone cord causing her left leg to twist & strike the floor
MRI: posterior horn incomplete medial meniscus tear
Symptoms: stopped running 3-7 days a week, gained 15 pounds in 3 months,
walking and standing on concrete aggravated pain; concurrent employment as a
photographer affected due to difficulty kneeling
“Arbitrator notes that no impairment report is contained in the record. However
this does not preclude the Arbitrator from making a finding of PPD, since no single
factor, or lack thereof, shall be the determining factor. This interpretation of the
Act has been confirmed by the unanimous vote of the Commission… ”
5% loss of use of the left leg
3-23-12 Petitioner filed Review
6-26-12 Review voluntarily dismissed
FINAL?
Terrence Davis v. City of Springfield
12WC009378
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Date of Arbitration: 06/11/2012 (Gallagher)
Date of Accident: 02/28/2012
45 year old Police Officer
Hydroplaned driving on wet pavement, went
through a fence and struck a pole injuring left
hand and arm
• Diagnosis: possible contusion of the 5th finger’s
metacarpal joint
• Symptoms: pain when the hand is bumped
Terrence Davis v. City of Springfield
12WC009378 (cont.)
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“The Arbitrator initially finds that at the time of the trial counsel for both the
Petitioner and Respondent waived their rights to an AMA impairment rating”
“The Arbitrator is not able to use an AMA impairment rating in determining the
extent of the PPD because both Petitioner and Respondent’s counsel waived their
rights to same.”
“Petitioner was 45 years old and employed as a police officer…there was no
evidence of any effect on future earning capacity.”
“Treating physician diagnosed as having a contusion of the MP joint”
“The Arbitrator further finds that the Petitioner’s age, employment, and future
earning capacity not relevant to any determination of permanent partial
disability.”
2% loss of use of the hand awarded
Decision date 7-11-12; No review filed
Section 19(b): “Unless a petition for review is filed…the decision shall become the
decision of the Commission and in the absence of fraud shall be conclusive.”
Terry Wadkins v. Pinckneyville Correctional Center
12WC02866
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Date of arbitration: 06/12/2012 (McCarthy)
Date of Accident: 12/17/2011
54 year old Correctional Officer
Tendonosis with underlying moderate AC joint osteoarthritis
“Section 8.1(b) of the Act states that five factors must be considered in
determining the extent of permanent partial disability, for accidents
occurring on or after September 1, 2011.”
“Here there was no physicians report using the AMA Guides offered into
evidence.”
Analysis of treating records and full duty release but subsequently retired
“The Arbitrator believes the positive findings reported by Dr. Choi,
including the MRI, provide a basis for an award.”
2% loss of person as a whole awarded
8-22-12 Cross Reviews filed
Cheryl Edwards v. State of Illinois (Murray Center)
12WC007449
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Date of Arbitration: 07/06/2012 (Granada)
Date of Accident: 01/17/2012
53 year old Mental Health Tech II
Attacked by resident resulting in cervicalgia; Discharged from care on
04/25/2012 with no complaints of pain; Petitioner testified her symptoms
wax and wane and are exacerbated by strenuous activity
• “Applying this standard to this claim, the Arbitrator first notes: Petitioner
is a Mental Health Tech II: is 53 years old: has no alleged lost future
earning capacity; and has complaints of neck and back pain corroborated
by the medical records that show a diagnosis of Cervicalgia. The
Arbitrator further notes that there was no reported level of impairment
pursuant to the AME Guides to the Evaluation of Permanent Impairment.
Based on these factors, the Arbitrator concludes that the Petitioner has
sustained injuries resulting in 1% loss of use of the person as a whole.”
• Decision dated 8-9-12; No Review filed; FINAL
Ricky Belton Lee, Jr. v. Chester Mental Health Center
11WC041595
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Date of Arbitration: 07/10/12 (Luskin)
Date of Accident: 09/27/11
30 year old Security Therapy Aid
While separating two fighting residents, injured his left hand
Diagnosed with a traction injury and treated for numbness; testified that his left
hand is numb for about 15 minutes in the morning
“Applying this standard to this claim, the Arbitrator first notes that no level of
impairment was determined by any physician. The Arbitrator therefore relies on
the other four factors to make a determination. The petitioner was 30 years old at
the time of the injury and was employed as a Security Therapy Aid. He has
continued to work in that capacity at the time of trial and it appears he will be able
to continue doing so without difficulty or medical impairment. The petitioner’s
complaints are corroborated by the medical records, but are consistent with a
sprain/strain injury to his non-dominant hand. Following conservative care, the
petitioner returned to his regular job duties.”
3.5% loss of use of the left hand
Decision 8-1-12; no review filed; FINAL
Derek Richardson v. Tamms Correctional Center
12WC08263
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Date of Arbitration: 07/12/12 (Luskin)
Date of Accident: 02/11/12
32 year old Correctional Officer
Twisted knee while kneeling and felt a pop; 04/12/12 arthroscopic knee surgery;
06/06/12 released from care noting minimal soreness
Testified that he had persistent soreness, stair claiming was difficult and
occasionally uses over the counter medication for symptom control
“Applying this standard to this claim, the Arbitrator first notes that no AMA
guideline impairment rating was determined by any physician. The Arbitrator must
therefore rely exclusively on the other four factors in making a determination.”
“The petitioner is a correctional officer, 32 years old at the time of the incident
and having just turned 33 years old at the time of the trial. He has continued to
work in his pre-injury capacity and not evidence of any earning impairment is
apparent from the documentation or testimony. Lastly, the petitioner testified as
to some residual complaints in his knee which are consistent with the knee surgery
delineated in the medical records.”
17.5% loss of use of the left leg
Decision 8-1-12; no review filed; FINAL
Scott Day v. City of Bloomington
11WC047768
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Date of Arbitration: 07/17/12 (Pulia)
Date of Accident: 11/22/11
33 year old Police Officer
Petitioner stepped on a big wheel causing him to go down into the splits, twisted
right knee
Diagnosed as having a PCL sprain of the right knee
Unable to return to playing softball; unable to be recertified for Pressure Points
and Control Tactics; squatting was painful
“In the case at bar the parties stipulated that neither one was going to offer into
evidence the reported level of impairment pursuant to subsection (a)”
“Only 33 years of age”(?)
Failure to recertify “could negatively impact his overall earning capacity in the
future”
Based on “treating medical records, petitioner sustained…”
5% loss of use of the left leg awarded
Decision 8-3-12; no review filed; FINAL; settled?
Fundamentals of AMA Guides
• “Impairment Rating: Consensus–derived percentage estimate
of loss of activity” (5)
• “The relationship between impairment and disability remains
both complex and difficult, if not impossible to predict.”(5)
• “The Guides is not intended to be used for direct estimates of
work participation restrictions.” (5)
• “In disability evaluation, the impairment rating is one of
several determinants of disablement… most amenable to
physician assessment..integrated with contextual
information..” (6) (“Doctors do impairment; Judges do
disability”)
• “Precision, accuracy, reliability, and validity are critical issues
in determining impairment.” (7)
Fundamentals of AMA Guides
• Table 1-6: Determine CDX and then adjust based on PE, CS, FH. (14)
• Table 2-1: “greatest dysfunction; ” “method producing higher rating
must be used” (20)
• “Clinical knowledge, skill and ability” (20)
• Treating physicians are not independent and are subject to greater
scrutiny (23)
• “With the patient’s consent” (24)
• “Only after the status of MMI is determined” (24)
• “A clear, accurate and complete report must be provided” (28)
• Data collection form “must be used to document the data and be
attached with the final report” (28)
• Three step process and discussion “is required” (28)
AMA Guides Commission Decisions
• Frederick Williams v. Flexible Staffing, Inc. 11WC046390
• Zachary Johnson v. Central Transport 11WC041328
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Frederick Williams v. Flexible Staffing
11WC046390
Facts
DA 10-7-11
45 year old welder grabs for 400 lb rail
Right istal biceps tendon rupture
Dr. Aribindi performs surgery
RTW full duty, despite complaints; no job
Dr. Mark Levin does AMA impairment rating: 6%
UEI; 4% WPI
• Arbitrator’s Decision 7-24-12
• Cites Section 8.1b (factors i-v)
Frederick Williams v. Flexible Staffing
11WC046390
Factor (i) Reported Level of Impairment
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Dr. Levin’s report admitted; identifies himself as CEDIR (AADEP certification)
6% UEI and “disability” of WP 4%
“Impairment does not equate to PPD”
“Does not include loss of range of motion” or “other measurements” (see 8.1b(a))
DX Elbow Regional Grid, Table 15-4, pg. 399: CDX 1; Distal biceps tendon rupture; Residual loss of
strength, functional with normal motion; default position C is 5% UEI (3,4,5,6,7)
Physical Exam PE grade modifier 2 because “moderate problem” (Table 15-8, pg. 408; range of
motion moderate decrease; 12%-23% UEI?); Arbitrator notes: “moderate problem”
Clinical Studies CS grade modifier NA because “diagnosis was biceps tendon rupture;” probably
meant “If a finding is used for placement of a diagnosis within a specific class in a DBI grid, that
same finding cannot be used as a grade modifier.” section 15.3c, pg.407; Arbitrator says “surgical
report could have been used in this way” (Table 15-9, pg. 410; GMCS =2?)
Table 2-1, Fundamental Principles of the Guides, pg.20, #12: “If the Guides provides more than one
method to rate a particular impairment or condition, the method producing the higher rating must
be used.”
Functional History FH grade modifier 1 because Quick DASH score 23, Arbitrator notes that it is not
included so she cannot “review his findings.” (Table 15-7, pg. 406)
Net Adjustment = (GMPE-CDX) + (GMCS-CDX) + (GMFH-CDX) = (2-1) + NA + (1-1) = 1 + NA + 0 =
NetAdjustment +1
Move one space to right from default C 5% = 6% UEI x 60% = 4%WPI (Table 15-11, pg. 420)
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Frederick Williams v. Flexible Staffing
11WC046390
Factors (ii) through (iv)
Factor (ii): Occupation of the injured employee
“Arbitrator takes judicial notice to be medium to heavy
work;” therefore, “PPD will be larger than individual
who performs lighter work.”
Factor (iii): Age of Employee at the Time of Injury
44 yo “somewhat younger individual;” therefore, “PPD
more extensive than that of an older individual
because he will have to live with PPD longer.”
Factor (iv): Employee’s Future Earning Capacity
“Appears to be undiminished…returned to full-time
duties…told he no longer had a job…may negatively
affect Petitioner’s future earning capacity.”
Frederick Williams v. Flexible Staffing
11WC046390
Factor (v) Evidence of Disability
• Demonstrated evidence of disability corroborated by his
treating medical records
• Credibly testified
• Pain, numbness, tingling and loss of range of motion
• Corroborated by treating medical records of Dr. Aribindi
• Corroborated by “diagnosis; necessity of surgery; course of
treatment”
• “Last visit”: loss of range of motion
• “Evidences a disability as indicated by commission
decisions regarded as precedent pursuant to section 19(e).”
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Frederick Williams v. Flexible Staffing
11WC046390
Determination of PPD
“Not simply a calculation, but an evaluation of
all five factors” as stated in 8.1b
No sole determinant
“Therefore applying section 8.1b” PPD is 30%
loss of use of the right arm
Status: Motion for correction of clerical error
filed 8-13-12
Zachary Johnson v. Central Transport
11WC041328
Facts
• DA 10-17-11
• 28 year old truck driver; door falls on right hand
• Right small finger metacarpal neck fracture with
angulation
• Treated conservatively with splint by company clinic;
RTW full duty for Respondent
• IME Dr. Cohen
• Dr. Vender does AMA impairment rating: 7% “index”
finger =1% hand=1% UEI
• Arbitrator’s Decision 7-24-12
• Cites Section 8.1b (Factors i-v)
Zachary Johnson v. Central Transport
11WC041328
Factor (i) Reported Level of Impairment
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Dr. Vender’s report admitted; no certification identified
“No evidence or argument rebutting Dr. Vender’s rating” (unlike Williams)
DX Metacarpal FX, Table 15-2, pg. “391” (sic, pg. 393); CDX 1, Proximal phalanx,
middle phalanx, metacarpal; residual symptoms, consistent objective findings
and/or functional loss, with normal motion; default position c is 6% digit
(4,5,6,7,8)
Physical Exam PE grade modifier 2 because moderate alignment deformity
present, 35 degree apex dorsal angualtion; Table 15-8, pg. 408
Clinical Studies CS grade modifier 0 because no evidence of arthritis on xray; table
15-9, pg. 410 (but why not GM 1?)
Functional History FH grade modifier 2 because Quick Dash = 50; Table 15-7, pg.
406, moderate problem
Net Adjustment = (GMPE-CDX) + (GMCS-CDX) + (GMFH-CDX) = (2-1) + (0-1) + (2-1)
= 1 + (-1) + 1 = Net Adjustment +1
(GMCS 0 hurts more than NA in Wiiliams)
Move one space to right from default C 6% = 7% digit x 10% = 1% hand x 90% =
1% UEI x 60% = 0% WPI (Table 15-12, pg. 421)
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Zachary Johnson v. Central Transport
11WC041328
Factors (ii) through (iv)
Factor (ii): Occupation of the Injured Employee
“Continues to be employed as truck driver” (no
analysis of type of job like Williams)
Factor (iii): Age of Employee at the Time Injury
28 yo “younger individual” and PPD “may not be more
extensive than that of an older individual” (Williams
was “somewhat younger”)
Factor (iv) Employee’s Future earning Capacity
“No evidence that future earning capacity has
diminished…age increases liklihood of long career as
truck driver” (offered job by Respondent unlike
Williams)
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Zachary Johnson v. Central Transport
11WC041328
Factor (v) Evidence of Disability
Petitioner’s treating medical records finds that
FX with angulations was treated
conservatively and healed
References to Drs. Cohen & Vender (treating
medical records?)
Only 8 weeks before RTW full duty
“Arbitrator also finds persuasive Commission
decisions…minimal PPD award is appropriate”
(nod to section 19(e) like in Williams)
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Zachary Johnson v. Central Transport
11WC041328
Determination of PPD
“Not simply a calculation, but an evaluation of
all five factors” as stated in 8.1b
No sole determinant
“Therefore applying section 8.1b” PPD is 10%
loss of use of the right hand
Status: 9-20-12 Settlement contract approved
(8.5% hand)
Summary
• AMA ratings can (and should?) be bolstered or disputed (even small
jump can represent large % change in impairment)
• Classify occupation (heavier = more PPD?)
• Analyze age (older = more PPD?)
• Earning capacity (RTW mitigates PPD?)
• Evidence of disability (You know what this is!)
• Corroborated by treating medical records (diagnosis, treatment, lost
time can be corroborative?)
• Previous IWCC decisions still important (19(e)?)
• “Impairment does not equate to PPD”
• PPD is an “evaluation” NOT simply a “calculation”
• Congratulations, you’re still a lawyer or a judge!
• Haircut? Buzzcut? Beheading? (35% arm to 30% arm is about 15%
reduction in value)
CONCLUSION
• Petitioners: Make sure to do your work in
presenting evidence addressing all existing
factors; explain absence of AMA (waiver?)
• Respondents: Make sure the AMA raters show
their work and attach all relied upon
documents to their reports; explain absence
of AMA (waiver?)
• Both Parties: Address all factors in proposed
decisions