WCLA MCLE
• WCLA MCLE Year End Wrap Up & Legislative
Update
• Thursday December 2, 2010
• 12:00 pm to 1:00 pm
• James R. Thompson Center Auditorium,
Chicago, IL
• 1 Hour General MCLE Credit
Temporary Partial Disability
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Dyan McBride v. State of IL; 09IWCC0914
DA 6-13-06
52 yo mental health technician sustains fractures to right arm resulting from fall
Prior to injury “regularly worked voluntary overtime”
52 weeks prior to DA: $28,629.12 straight (AWW $550.56) + $9548.07 total OT
($183.62/week)
RTW light duty 6-19-06 doing paperwork, but no OT; RTW full duty 10-1-06
Full capacity = Gross straight time actually earned ($9368.60)+ average weekly OT
($183.62/week or $2570 total) = $11, 939.28
TPD = 2/3($11, 939.28 - $6266.45 actual net earnings)= 2/3( $5672.83) =
$3781.88
“Section 8(a) of the Act regarding TPD places none of the AWW limitations found
in Section 10 of the Act regarding OT, nor does it limit the OT to the straight time
rate”
Credit based on weeks paid not % paid under old schedule
Temporary Partial Disability
• Copperweld Tubing, 402 Ill. App. 3d 630: 8(d)1 vacated &
remanded to Commission with instruction to omit “evidence
properly excluded by Section 10 of the Act” (voluntary
overtime); Any impact on calculation of TPD?
• "Temporary partial disability benefits shall be equal to twothirds of the difference between the average amount that the
employee would be able to earn in the full performance of his
or her duties in the occupation in which he or she was
engaged at the time of the accident and the net amount
which he or she is earning in the modified job provided to
the employee by the employer.”
• Anybody have a case?
Interstate Scaffolding
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Steele v. Kelly Services , 06WC46872, 10 IWCC 949: NO TTD: “Further, Ms.
Gardner testified that restricted duty is available at Kelly Services and has been
from September 2006 through the present. Ms. Gardner testified that restricted
duty is within the Kelly Services office and can be sedentary, no lifting, pushing,
pulling, bending or stooping. An employee may sit or stand as needed. While the
petitioner has various periods during which he has been placed under restrictions,
the petitioner did not present to Kelly Services seeking employment within those
restrictions. The Arbitrator takes into consideration the recent decision in
Interstate Scaffolding wherein the court found that if employment is terminated
for an unrelated cause and the claimant's condition has not yet stabilized, TTD is
due and owing. However, the Arbitrator notes the respondent in this matter did
not terminate the petitioner, the petitioner voluntarily left his employment. An
employer cannot be held responsible when an employee refuses to appear for
work and voluntarily abandons their job.” Affirmed by unanimous IWCC.
See also Gill v. Meany, Inc. , 09WC24525; 10 IWCC 0935: voluntary retirement cuts
off TTD
Greene Welding (amputations)
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Alejandro Garcia v. River Docks, 08WC 42973, 10 IWCC 837 : “Further, where the claimant suffers clear,
unquestionable statutory amputations with no existing dispute, the Respondent's delay in payment
warrants an assessment of penalties under Section 19(k) and attorney's fees under Section 16 of the
Workers' Compensation Act. See Kinnaird v. Greene Welding & Hardware, 08 IWCC 0812; Lester v.
Industrial Commission, 256 Ill.App.3d 520 .In the case at bar, the claimant suffered clear, indisputable
traumatic amputations of the right 4th and 5th digits at the scene of the occurrence on July 31, 2008,
when his severed little finger and ring finger were placed on ice, accompanying Petitioner to University of
Chicago Hospitals same day, at which time surgeons performed an unsuccessful replantation of the right
ring finger. On August 12, 2008, Dr. Ginard Henry, primary surgeon, performed a second surgical
procedure which was a completion amputation of the failed right 4th digit replantation, along with other
right hand surgery. At this point in time Respondent was clearly aware that the Petitioner had complete
loss by traumatic amputation of his right 4th and 5th digits. However, Respondent unreasonably failed to
immediately pay to Petitioner permanent partial disability compensation of 100% for each of those
digits pursuant to Section 8(e). It was not until March 10, 2009 a check was issued to claimant, Alejandro
Garcia, in the sum of $ 12,782.63. In the Kinnaird Decision where Section 19(k) penalties and attorney's
fees under Section 16 were awarded, the Petitioner had returned to work 2 3/7 weeks following the
traumatic amputations, but the Respondent did not pay for the statutory amputations before an
additional month had passed, a total of 6 3/7 weeks having elapsed from the date of the traumatic
amputations. In contrast, in the case at bar Respondent did not pay the statutory amputation benefits to
Mr. Garcia, as required by Section 8(e) of the Act, until over approximately 30 weeks following August
12, 2008, at which time, the date upon which the Respondent had become clearly aware Petitioner had
suffered traumatic amputations of the 4th and 5th digits of his right hand.
Greene Welding (cont.)
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Garcia, cont.: “Further, AIG Claim Services, representing Respondent in the case at bar, addressed the
Petitioner's attorney under fax dated March 9, 2009, contrary to black letter law, advised "As your client
was deemed MMI, please prepare and forward your settlement demand to conclude this matter.“ This
ignorance of the law was inexcusable and deprived Petitioner of his full Worker's Compensation
benefits. That same argument contending statutory amputation benefits need not be paid until
Petitioner was MMI was made by another Respondent in Lester contending that payment was not due
regarding a statutory amputation until the claimant has reached maximum medical improvement. In
rejecting this argument, the Illinois Appellate Court in Lester stated it was the intent of the Legislature
that an employee who suffers amputation should be compensated immediately when no dispute exists as
to the liability of the accident, that ruled recently in Kinnaird. See Lester.
However, the Respondent, further ignored applicable Worker's Compensation Statutory Law, there being
a provision in effect on the date of occurrence, July 31, 2008, a change effective since February 1, 2006,
providing under 820 ILCS 305/8(b)4.1 Minimum Rate for Amputation of a Member... under Section 8(e) is
increased to 50% of SAWW. The SAWW at the time of the accidental injury to the Petitioner, July 31,
2008, was $ 912.56, and 50% of that number produces a minimum PPD rate of $ 456.28, which PPD rate
is higher than the PPD rate as extended against Petitioner's AWW of $ 581.26 per week.
Respondent clearly demonstrated unreasonable and vexatious behavior by carelessly making a late
payment for statutory amputation benefits when the law was clear on this point. As such, applying the
minimum rate for amputation pursuant to 820 ILCS 305/8(b) 4.1 establishing an appropriate PPD rate of $
456.28 produces a total for amputation benefits in the amount of $ 22,357.72. Respondent paid a total of
$ 12,782.63 resulting in an underpayment of $ 9,575.09.”
Dismissal & Reinstatement
• TTC Illinois, 396 Ill. App. 3d 344 (2010):
technical compliance with reinstatement rule
not required; case reinstated after 21 months
• Alejandro Rodriguez v. Total Doors, 05WC037659,
10 IWCC 772; DA 6-20-05; Filed 8-26-05; Dismissed
12-16-08; Petition to Reinstate filed 3-3-09 (notice
received 1-10-09); NOM for 4-6-09; Respondent filed
Motion to Dismiss Petition to Reinstate12-24-09;
Granted 1-13-10; Affirmed 8-12-10 “lack of due
diligence”; Respondent’s request for fees denied
Intervening Injuries
• Menard v. IWCC, No.5-09-0354WC, filed 1116-10
• 4-1-99: Application filed for anxiety/mental
illness caused by conflicts at work
• Petitioner fired
• 2-20-00: Petitioner falls while attending IME
• 1-24-03: files 2nd App for fall
Menard (cont.)
• Arbitrator awards benefits for mental-mental case
and for IME fall
• Commission reverses mental-mental case, but
affirms IME fall finding Petitioner was under the
direction of the employer even though she had been
fired
• Circuit Court of Jackson County reverses: No
employer employee relationship existed
• Appellate Court affirms, citing Skelgas: attendance at
IME was not a condition of the employment
Other Issues
• Uninsured employers: Keating hearings
pending before IWCC; rules to follow?
Anybody have a case?
• Medical records subpoenas: Has the Holtkamp
Trucking crisis blown over? Anybody have a
Holtkamp experience?
Legislative Update
• Senate & House Special Committees on Workers’
Compensation Reform
• Changing standard of causation (no more aggravation of preexisting condition)
• AMA guidelines for PPD
• Binding utilization review
• Wage-differentials (change in economic circumstances, prior
credit, cap at retirement age)
• Alcohol & drugs
• Choice of medical
• Collectively bargained workers’ compensation