WCLA MCLE 12-4-14
• 2014 Year End Review & Update
• Thursday December 4, 2014
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
WCLA MCLE 1-21-14
• Case Law Update: Venture Newberg & Villa Park
• Tuesday January 21, 2014
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
THE VENTURE—NEWBERG-PERINI, STONE & WEBSTER v. IWCC
2013 IL 115728, Opinion filed December 19, 2013
• Not only does the case law fail to support Daugherty’s position that he qualified for the traveling employee
exception, but the appellate court position raises serious policy concerns. For example, while an employee
who chooses to relocate closer to a temporary jobsite can receive benefits if injured on the way to work, an
employee who permanently resides close to the job site is not entitled to benefits if injured on the way to
work. Because we conclude that Daugherty was not a traveling employee at the time of the accident, we
need not consider whether the injury was compensable.
• Therefore, the Commission’s finding that Daugherty’s method of travel was determined by the demands and
exigencies of the job, rather than his personal preference, was against the manifest weight of the evidence.
• While there is no question that Daugherty was seriously injured, the facts of this case do not support
Daugherty’s argument that he was entitled to workers’ compensation benefits. Daugherty made the
personal decision to accept a temporary position with Venture at a plant located approximately 200 miles
from his home. Venture did not direct Daugherty to accept the position at Cordova, and Daugherty accepted
this temporary position with full knowledge of the commute it involved. Daugherty was not a traveling
employee.
• Additionally, Daugherty’s course or method of travel was not determined by the demands and exigencies of
the job. Venture did not reimburse Daugherty for travel expenses or time spent traveling. Venture did not
direct Daugherty’s travel or require him to take a certain route to work. Instead, Daugherty made the
personal decision to accept the position at Cordova and the additional travel and travel risks that it entailed.
Village of Villa Park v. IWCC
2013 IL App (2d) 130038WC, filed 12-31-13
• On appeal, the Village argues that the Commission’s determination that the claimant’s back injury
arose out of a risk inherent in his employment is against the manifest weight of the evidence.
Specifically, the Village contends that the Commission erred in relying on the personal-comfort
doctrine because there was no evidence that the claimant’s use of the stairs was related to
anything necessary for his health or comfort. The Village also contends that the Commission erred
in determining that the claimant’s daily, frequent use of the stairs exposed him to a greater risk
than that to which the of the general public is exposed when traversing stairs. We disagree.
• In this case, the claimant was working in the police station to which he was assigned at the time
of his fall on April 5, 2007. Consequently, there is no dispute on the question of whether his injury
occurred “in the course of” his employment.
• Falling while traversing stairs is a neutral risk, and the injuries resulting therefrom generally do
not arise out of employment. Illinois Consolidated Telephone Company, 314 Ill. App. at 353. As
with personal risks, however, an exception to noncompensability under the Act exists where the
requirements of the claimant’s employment create a risk to which the general public is not
exposed. Id. “The increased risk may be qualitative or quantitative, such as where the claimant is
exposed to a common risk more frequently than the general public.” Id.
Village of Villa Park v. IWCC
2013 IL App (2d) 130038WC, filed 12-31-13
• We believe that the facts of this case support the Commission’s finding that the
claimant’s fall and resulting injury arose both out of and in the course of his
employment with the Village and that its holding in this regard is not against the
manifest weigh of the evidence.
• The evidence of record supports the Commission’s finding that the claimant was
“continually forced to use the stairway” both for his personal comfort and “to
complete his work related activities.” Specifically, the evidence established that
the claimant was required to traverse the stairs in the police station a minimum
of six times per day. This fact, coupled with evidence that the claimant informed
his superiors, prior to his fall on April 5, 2007, that he had injured his knee and
the testimony of Deputy Chief Budig that he had seen the claimant walk with a
limp on numerous occasions prior to April 5, 2007, certainly supports the
inference that the Village required the claimant to continuously traverse the stairs
in the police station, knowing that he had an injured knee.
Brais v. IWCC
2014 IL App (3d) 120820 WC; filed 05/08/2014
• Because the instant case involves a special hazard, it is analogous to Bommarito,
Litchfield Healthcare Center, and Metropolitan Water Reclamation District of Greater
Chicago. The claimant’s presence on the sidewalk approaching the steps to the
courthouse’s front door was occasioned by the demands of her employment, which
required her to attend a meeting in the administration building two blocks from her
office. Her attendance at the meeting was for the benefit and accommodation of her
employer.
• This case does not merely involve the risks inherent in walking on a sidewalk which
confront all members of the public. This case involves a cracked and defective sidewalk
which was a contributing cause of the claimant’s injury. Because the claimant
encountered a special hazard or risk as a result of using a sole or usual access route, her
injury arose out of her employment. Application of the existing case law to the
undisputed facts in this case reveals that the only reasonable inference that can be
drawn from the evidence is that the claimant’s injuries arose out of her employment.
• For the foregoing reasons, the judgment of the circuit court confirming the decision of
the Commission is reversed, the decision of the Commission is reversed, and this cause is
remanded to the Commission for further proceedings.
Chairman’s Update
Michael P. Latz
Illinois Workers’ Compensation Commission
February 26, 2014
Chairman’s Update - Overview
• Common Misconception
• HB 1698 Reform Legislation
• Current Legislation
• Wage Differential
• Admissibility of Proposed Decisions As Evidence
• Reassignment of Arbitrators
• Rules Of Professional Conduct
• Civility at the Commission
Wage Differential
• Are Wage Differential Claims under 8(d)(1) Subject to the Statutory
Attorney Fee Under Section (16)(a) of the Illinois Workers’ Compensation
Statute?
Garcia v. Magid Glove & Safety; 04 WC 09555.
In a recent Cook County Circuit Court case, the Judge reversed the decision
of the Commission -and the Judge awarded petitioner’s attorney fees
above the statutory fee of 820 ILCS 305 (16)(a). The Petitioner’s attorney
argued that wage differential awards under 820 ILCS 305 (8)(a) do not fall
within the definition of the disabilities outlined in (16)(a), and thus are not
subject to statutory attorney fees set forth in (16)(a).
WCLA 3-27-14
• The Five Factors of Section 8.1b
• Thursday March 27, 2014
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Frederick Williams v. Flexible Staffing
14 IWCC 0576
• On remand the Commission makes the following clarification to support its
conclusion, modifies the Decision of the Arbitrator as stated below and otherwise
affirms and adopts the decision of the Arbitrator.
• We understand Respondent's argument that Dr. Levin's A.M.A. impairment rating
of 6% of the upper extremity was not given enough weight by the Arbitrator.
However, we do not agree with the great weight that Respondent wants placed
on this rating because to do so would be to disregard the other factors and give
them no weight at all. Section 8.1b of the Act requires the consideration of five
factors in determining permanent partial disability
• Section 8.1b also states, "No single 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." We initially note that the term
"impairment" in relation to the A.M.A. rating is not synonymous with the term
"disability" as it relates to the ultimate permanent partial disability award.
Frederick Williams v. Flexible Staffing
14 IWCC 0576
• Based on the above, the Commission finds that the 6% impairment
rating by Dr. Levin does not adequately represent Petitioner's actual
disability in this case. When considering the other four factors, we
find that Petitioner's permanent partial disability is 25% loss of use of
the right arm. The Commission modifies the Arbitrator's Decision, to
decrease Petitioner's partial disability award from 30% to 25% loss of
use of the right arm pursuant to Section 8(e) of the Act.
• Discussion of other factors
Is An Impairment Rating Necessary?
Marque Smart v. Central Grocers
• Arbitrator’s Decision, 12WC008366, 5/23/2013
• The Arbitrator finds that a permanent partial disability can and shall be awarded in the absence
of an impairment rating or impairment report being introduced.
• It is axiomatic that the plain and ordinary meaning of statutory words be used in determining
how to construe the law. The plain language of the Act dictates that an impairment rating is but
one of the factors to be use in determining permanent partial disability.
• Further, the use of the word "factor" merely shows that it is to be considered. Further, the fact
that the Act dictates that no single factor shall be determinant shows that logically, the converse
is also true. This means that the absence of one of the enumerated factors cannot be
determinant of the permanent partial disability award.
• Further, Petitioner's Exhibit # 14, a memorandum from the Illinois Workers' Compensation
Commission dictates that "If an impairment rating is not entered into evidence, the Arbitrator is
not precluded from entering a finding of disability." The plain language of this memorandum
indicates that an Arbitrator is not precluded from entering a finding of disability in the absence of
an impairment rating. The language is definitive and leaves no room for misinterpretation.
Accordingly, the Arbitrator finds that the absence of an impairment rating does not preclude this
Arbitrator from making a finding as to disability
Is An Impairment Rating Necessary?
Marque Smart v. Central Grocers
• Commission Decision, 14 IWCC 0374, 5/20/2014
• Decision of Arbitrator Affirmed & Adopted (2-1)
• Dissent: It is cardinal rule of statutory construction that the word "shall" is mandatory, as opposed
to the word "may" which is directory.
• That provision does not apply to any other of the specified factors. Therefore, while the
impairment rating is not the exclusive factor, it is a factor of such importance that the relevance
and weight of any other factor must be "explained in a written order." That language indicates to
me that the General Assembly intended the impairment rating to be a fundamental basis for a
disability award and deviation from that rating shall be explained. In my opinion the impairment
rating becomes a preeminent piece of evidence, similar to a proper utilization review report,
which presumptively absolves an employer from the imposition of penalties and fees if it acts in
accordance with the report.
• Finally, I believe the interpretation of the new section 8.1b is of sufficient importance that it
should be addressed by the Appellate Court or the General Assembly. I hope this dissent brings
this issue to their attention for possible clarification or amendment. For these reasons, I
respectively dissent from the decision of the majority.
WCLA MCLE 4-15-2014
• Case Law Update: Compass Group; Paluch; City of Chicago; Mansfield
• Tuesday April 15, 2014
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Compass Group v. IWCC
2014 IL App (2d)121283WC
• Petitioner’s cross-appeal
• Home modifications: “Commission erred when it did not award him the costs of certain
modifications he made to his house… it appears that under no circumstances would the
Commission accept the recommendation of a physical therapist regarding a home
modification…Respondent contends that the prescription of a physician is required.
Whether the law requires the prescription of a physician presents a question of law.
Thus, de novo review is appropriate…our research indicates that there is no requirement
that the opinion of a physician is necessary to support such an award.
• “As the Commission applied the incorrect legal standard, we vacate that portion of its
decision and remand for further proceedings on this issue. There is no absolute
requirement that an award of the type sought here be supported by the testimony of a
physician, so long as competent evidence establishes the reasonableness and necessity of
the award. On remand, the Commission should evaluate the opinions of the physical
therapists as it would any other such witness in light of all appropriate facts and
circumstances.”
City of Chicago v. IWCC
st
2014 IL App (1 ) 121507WC
• However, some, but not all, of the claimant’s claims before the Commission are barred
by principles of collateral estoppel. “Collateral estoppel prohibits the relitigation of an
issue essential to and actually decided in an earlier proceeding by the same parties or
their privies.”
• Administrative agency decisions made in adjudicatory, judicial, or quasi-judicial
proceedings may have collateral estoppel effect.
• However, the Board’s decision does collaterally estop the claimant from relitigating the
issues of whether he was disabled after August 3, 2009, and whether his work-related
injuries rendered him unable to work as a paramedic after that date. As noted, the Board
decided that he was fully recovered and fully able to perform his job as a paramedic by
that date. In order to award TTD and TPD benefits after that date, the Commission would
have to reach a contrary conclusion.
• Because the Commission’s award of TPD benefits commenced on October 6, 2009, it is
barred by collateral estoppel. Accordingly, we do not need to address the City’s
alternative argument that the Commission’s award of TPD benefits was against the
manifest weight of the evidence.
Mansfield v. IWCC
2013 IL App (2d) 120909WC
• AWW: Claimant next argues the Commission incorrectly calculated her average weekly wage. Claimant argues that her
actual earnings should be construed to include the gross profit of her business, SCATHOME. On cross-appeal, the employer
argues the Commission incorrectly calculated claimant’s average weekly wage as including profits from claimant’s selfemployment, providing piano lessons in her home.
• In Paoletti, the claimant sustained an injury to his back while working as a refuse scavenger for the employer. 279 Ill. App.
3d 988 (1996). As in this case, the claimant’s tax returns showed the business did not pay him any wage or salary, but he
did receive the net profits. This court noted that “[t]he question of whether net profits should be considered in calculating
a claimant’s average weekly wage is of first impression in Illinois.” In holding that the claimant’s business profits should not
be included in the calculation of his average weekly wage, this court stated that it “would be legislating from the bench if
[it] were to hold that ‘actual earnings’ should be construed to include net profit.”
• Citing to a Tennessee Supreme Court decision, the Paoletti court went on to suggest an exception might exist such that
business income could be included in the calculation of average weekly wage where evidence was presented of the wage
of another employee performing similar duties as claimant. P&L Construction Co. v. Lankford, 559 S.W.2d 793 (1978)
• Therefore, while we adhere to Paoletti’s holding that a claimant’s business income should not be included in the
calculation of average weekly wage, we decline to further recognize an exception to this holding based on Lankford.
Accordingly, to the extent the Commission included net profits of claimant’s business in its calculation of her average
weekly wage, the Commission erred.
• We note the Commission affirmed and adopted the arbitrator’s finding that claimant earned from the employer an
average weekly wage of $247.97 in the year preceding her injury. Claimant was paid in 19 biweekly installments during the
year preceding her injury and had earned $9,422.86. There was no indication in the record regarding how many days she
worked during those weeks or how many hours per day she worked. The claimant’s average weekly wage was properly
calculated by dividing $9,422.86 by 38 (19 biweekly payments) for an average weekly wage of $247.97. We therefore
reverse that portion of the circuit court’s judgment modifying the Commission’s determination of the claimant’s average
weekly wage, set aside the Commission’s decision on the issue of average weekly wage, and remand to the Commission
for recalculation of the claimant’s average weekly wage and the benefits to which she is entitled which are dependent
thereon, and for further proceedings.
WCLA MCLE 5-14-14
• Recent Commission Decisions: AWW to Voc Rehab
• Wednesday May 14, 2014
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Julie Meierdirks v. Northbrook School District # 28
07WC039919, 12IWCC0647
• In support of the Arbitrator's finding that an accident did not occur arising out of
and in the course of the petitioner's employment by the respondent, the
Arbitrator states as follows:
• Petitioner fell while walking in a normal fashion without carrying any items and
on what was termed by all parties as "industrial carpeting without defect
• The applicable risk category in this case is neutral risk as specifically cited in the
case, "By itself, the act of walking across a floor at the employer's place of
business does not establish a risk greater than that faced by the general public."
(Illinois Consolidated Telephone Company)
• In the case at issue, the petitioner did not present any evidence explaining the
cause of her fall. In fact, the petitioner testified that there was industrial
carpeting without any defect and she was not carrying anything in her hands nor
was she walking at an increased rate at the time of the fall. Therefore, no direct
evidence was presented establishing a cause for the petitioner's fall which is the
petitioner's burden in this case.
WCLA MCLE 6-19-14
• The Notice Defense: Myth or Reality
• Thursday June 19, 2014
• Amylee Hogan Simonovich; Ridge & Downes
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Tolbert v. IWCC
2014 IL App (4th) 130523 WC
• ¶ 81 In the present case, the Commission's finding that the claimant did not give sufficient notice
under section 6(c) is contrary to the manifest weight of the evidence. Within 45 days of his accident,
i.e., exposure to the fungus causing histoplasmosis, the employer was aware that the claimant was
suffering from chest and lung issues, knew that the claimant was working in dusty conditions, and
knew that his doctors did not want him working around dust. The employer knew of the claimant's
conditions and knew the type of work environment to which he was exposed. Although the claimant
and his doctors initially thought that he was suffering from cancer, this inaccuracy in his notice to the
employer has not prejudiced the employer in this proceeding. Therefore, the manifest weight of the
evidence does not support the Commission's finding of a lack of notice under section 6(c) of the Act.
• Under these facts, to require the claimant to prove the exact date on which he inhaled the dust that
caused the histoplasmosis and to prove that he gave notice 45 days from that date would require the
claimant to do the impossible. (citation).
• ¶ 84 The legislature has mandated a liberal construction of the notice requirement… This allows an
employee suffering from an accidental injury of the type presented in this case to establish a date of
accident from which notice and limitations periods begin to run and, at the same time, allows the
employee to be compensated for an accidental injury when its causal connection to current conditions
of ill-being are not readily apparent…should be flexible, fact-specific, and guided by considerations of
fairness.
WCLA MCLE 7-8-14
• Case Law Update: Sunny Hill & Folta (& Legislative Update)
• Tuesday July 8, 2014
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Folta v. Ferro Engineering
st
2014 IL App (1 ) 123219, 6-27-14
• This court has, on multiple occasions, rejected Ferro Engineering’s proposed definition of
compensability (synonymous with an injury that arises out of or in the course of employment)
and instead articulated a definition related to plaintiff’s ability to recover under the Act.
• “Recoverability”: where plaintiffs’ injuries were of such a nature that they could not recover
under the Act, the fourth Meerbrey exception would apply to allow them to bring a common-law
suit against their employer.
• Such an interpretation of compensability is consistent with the purposes of the Act’s exclusivity
bar as explained by our supreme court …stated that the exclusivity bar is rooted in the fear of
double recovery and the desire to prevent the proliferation of litigation.
• Our holding is confined to the specific fact pattern before us today, in which an injured
employee’s potential claim under the Act is time-barred before he ever learns of it, thus
necessarily depriving him of any potential for compensation under the Act.
• Thus, for the foregoing reasons, we reverse the judgment of the trial court, insofar as we find that
plaintiff’s suit against Ferro Engineering is not barred by the exclusivity provisions of the Act and
the Workers’ Occupational Diseases Act, and we remand for further proceedings.
Sunny Hill of Will County v. IWCC
2014 IL App (3d) 130028WC, 6-26-14
• Claimant's "work" at the flower shop did not establish her condition had
stabilized. Claimant opened the flower shop with her daughters as a way of
grieving the loss of her husband and son. Although she is the majority owner, her
daughters run the business.
• We take this opportunity to address this court's statement in Granite City,
that"[t]o show entitlement to TTD benefits, claimant must prove not only that he
did not work, but that he was unable to work." Here, claimant's activities at the
flower shop could arguably be characterized as “work.” A literal application of the
preceding language in Granite City might therefore dictate a denial of TTD
benefits, a result we do not believe was intended by Granite City. We believe the
quoted language in Granite City should not be interpreted to mean a return to
any work will result in the denial of TTD benefits, but rather evidence of such
work may be probative of whether the employee's condition has stabilized which,
according to the supreme court in Interstate Scaffolding, is the proper focus of
the TTD analysis.
Sunny Hill of Will County v. IWCC
2014 IL App (3d) 130028WC, 6-26-14
• The arbitrator found TTD benefits were appropriate because (1)
claimant's presence at the flower shop and occasional assistance to
her daughters there did not constitute a "return to work" and (2) she
had not yet reached MMI nor had she been released to return to
work. The Commission adopted the arbitrator's decision. Based on
this evidence, we find the Commission's award of TTD benefits is not
against the manifest weight of the evidence.
• For the reasons stated, we affirm the circuit court's judgment,
confirming the Commission's decision, and remand the cause for
further proceedings pursuant to Thomas, 78 Ill.2d 327
Matuszczak v. IWCC
2014 IL App (2nd) 130532WC, filed 9/30/2014
• On appeal, the employer argues the Commission’s finding that claimant was not entitled to TTD benefits
following his June 2011 termination from employment was neither contrary to law nor against the manifest
weight of the evidence. It maintains that, although Interstate Scaffolding prohibits the automatic suspension
or termination of TTD benefits when a claimant is fired for reasons unrelated to his injury, it does “not
proscribe all use of discretion [by the Commission] when deciding whether an employer remains liable for
TTD” following an employee’s discharge.
• Here, the parties disagree on whether the Commission utilized the correct legal analysis in vacating the
arbitrator’s award of TTD benefits following claimant’s termination from his employment. This issue presents
a question of law and is subject to de novo review.
• Cleary, the supreme court’s holding in Interstate Scaffolding prohibits the automatic denial of TTD benefits
to an injured employee when the employee has been discharged from work by the employer. However, that
is not the extent of the court’s holding. In addition to proscribing the denial of TTD based solely on an
employee’s discharge, the court also clearly held that when an employee who is entitled to benefits under
the Act is terminated for conduct unrelated to his injury, the employer's TTD obligation continues “until the
employee’s medical condition has stabilized.” This is true even in cases of for-cause dismissal.
• Additionally, we find nothing in the supreme court’s decision that would show the result in Interstate
Scaffolding was dependent upon the claimant’s knowledge, or lack thereof, as to whether his conduct could
result in termination…Whether claimant was appropriately discharged, or knew he could be as a result of his
conduct, was not an appropriate consideration for the Commission under the circumstances presented
WCLA MCLE 8-13-14
• Some More Case Law (Update): Young, Dig Right In, Carter
• Wednesday August 13, 2014
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Young v. IWCC
th
2014 IL App (4 ) 130392WC (7-7-14)
• Injury arose out of an employment-related risk and is compensable…record shows claimant was
injured while performing his job duties, i.e., inspecting parts
• Evidence unequivocally shows claimant was performing acts that the employer might reasonably have
expected him to perform so that he could fulfill his assigned duties on the day in question
• Manifest weight of the evidence supports a finding that claimant's injury arose out of his employment
• When a claimant is injured due to an employment-related risk—a risk distinctly associated with his or
her employment—it is unnecessary to perform a neutral-risk analysis to determine whether the
claimant was exposed to a risk of injury to a greater degree than the general public. A neutral risk has
no employment-related characteristics. Where a risk is distinctly associated with the claimant's
employment, it is not a neutral risk
• Record does not support the Commission's finding that claimant embellished the accident descriptions
he provided to his doctors by stating that he stretched "far" or "overstretched" reaching into the box
• Reluctant to set aside the Commission's decision on a factual question…will not hesitate to do so when,
as in this case, the clearly evident, plain, and indisputable weight of the evidence compels an opposite
conclusion…Under the facts of this case, an opposite conclusion from that of the Commission is clearly
evident and its decision is against the manifest weight of the evidence
WCLA MCLE 9-11-14
• Current Issues Involving Medical Bills
• Thursday September 11, 2014
• 12:00pm to 1:00pm
• James R. Thompson Center, Chicago, IL
• 1 Hour General MCLE Credit
Maria Gomez v. Speedway Superamerica LLC
14 IWCC 0444 (Jun. 6, 2014)
Appendix E
Review
•
Petition for Review filed by Petitioner
•
Modifies the decision of the Arbitrator and otherwise affirms and adopts the Decision of the Arbitrator.
•
Specifically finds that all treatment, including but not limited to, treatment with Dr. Harsoor, Alivio, Rogers Park One Day Surgery Center, Dr. Michael,
Metro South, Oak Park Medical Center was excessive and unnecessary.
•
Pursuant to Section 8.2(e), these providers shall not bill or otherwise attempt to recover from the Petitioner for medical services or treatment that have
been determined to be excessive or unnecessary.
•
In support of this specific finding, the Commission relies on the reports of Drs. Goldberg, Graf and the utilization review reports.
•
The Commission discusses at length the medical evidence suggesting additional care and surgery was not medically indicated and finds Dr. Michael’s
medical opinions unsupported by the evidence.
Notes
•
Specific reference to Section 8.2(e) in support of its decision to hold harmless both parties
•
The Commission decides against the providers for treatment prior to 9/1/11. Again, is this retroactive application allowed?
• Ambulatory Surgical Care v. Charter Oaks, 12 L 002006, appeal pending, issues:
promissory estoppel & jurisdiction of IWCC
WCLA MCLE 10-7-14
Evidence Update
Jack Cannon
Dennis M. Lynch
Healy Scanlon Law Firm
RG Construction v. IWCC
2014 IL App (1st) 132137WC-U
Rule 23, filed 11/21/2014
• Arbitrator :“I offered the opportunity to take this deposition, but I felt it only fair that the [employer] pay for
it since I think under the Act the only thing that [claimant] needs to do is have a certified record or have
these records via subpoena which I understand[he has]adhered to those requirements”
• Commission: "While we are in agreement with the decision of the Arbitrator on this issue, we further
address [the employer's] constitutional argument. We find no violation [of the employer's] Fourteenth
Amendment right to due process. The Arbitrator offered to continue the hearing if [the employer] elected to
obtain the depositions of the Drs. Nam and Silver, but [the employer] declined. The treatment records were
therefore properly admitted pursuant to Section 16 of the Act
• On judicial review, the circuit court of Cook County confirmed the Commission's decision. The employer
appeals, arguing it was denied its due process right to cross-examine witnesses and present rebuttal
evidence by the admission into evidence of claimant's medical records, which contained the opinions of two
of claimant's treating physicians
• Appellate Court: “The employer does assert that ‘[i]t is undeniable that the doctors' records contain
opinions beyond medical and surgical matters admissible pursuant to Section 16.’ However, it cites no
authority for this statement other than section 16 itself. After reviewing the statutory language, we find no
indication that the legislature intended to exclude a treating doctor's opinion, which was offered during the
course of the doctor's treatment of the employee and memorialized in the doctor's treating records, from
the phrase ‘medical and surgical matters.’”
WCLA MCLE 11-5-14
• Appellate Court Luncheon
• Wednesday November 5, 2014
• 12:00 pm to 2:00 pm
• University Club, 76 E. Monroe, Chicago, IL
• 1 Hour General MCLE Credit
Practice Tips: IWCC to Circuit Court
• Review 820 ILCS 305/19(f)(1), (2) & (3)
• Review Supreme Court Rules 330-384 plus Rules 22(i) and 23
• Do you have a final, appealable decision? (e.g. 19(f) motion for
clerical error)
• IWCC is necessary party to Circuit Court review
• Motion to Quash Summons if question regarding Circuit Court review
• Strict v. Substantial compliance
• Circuit Court Remand to IWCC: final? Appeal as protective measure?
WCLA MCLE Schedule 2015
• Tuesday January 27, 2015
• Thursday February 12, 2015
(Special 3 hour Professional
Conduct beginning at 8:30am)
• Wednesday February 25, 2015
• Thursday March 26, 2015
• Thursday April 9, 2015
• Wednesday May 6, 2015
• Thursday June 4, 2015
•
•
•
•
•
•
Tuesday July 14, 2015
Wednesday August 12, 2015
Thursday September 10, 2015
Tuesday October 20, 2015
Wednesday November 18, 2015
Thursday December 17, 2015