WCLA MCLE 1 27 15 Case Law Update

WCLA MCLE 1 -27 -15 • Case Law Update • Tuesday January 27, 2015 • 12: 00 pm to 1: 00 pm • James R. Thompson Center , Chicago, IL • 1 Hour General MCLE Credit

PPG Industries v. IWCC 2014 IL App (4 th) 130698 WC • Carrie Bond v. PPG Industries, 10 WC 016545, 12 IWCC 1147 • Petitioner's claim is not barred by the Statute of Limitations. Respondent raised the Statute of Limitations as a defense during the hearing. When counsel for Petitioner questioned Petitioner about her work duties for Respondent from 1979 to the present, Respondent objected citing the Statute of Limitations and arguing that any work activities Petitioner engaged in more than three years before the alleged date of accident were beyond the State of Limitations and should not be considered in addressing liability. In support thereof, Respondent's counsel cited the Act's three-year statute of limitations. • In cases of repetitive trauma, the date of an accidental injury is the date on which the injury manifests itself, meaning the date on which both the fact of the injury and the casual relationship of injury to the claimant's employment would have become plainly apparent to a reasonable person. (citation). Contrary to the Respondent's position that the Statute of Limitations bars testimony or information regarding Petitioner's job duties for a period not to exceed three years from the manifestation date, case law clearly indicates that the past work history of an employee should be considered.

PPG Industries v. IWCC 2014 IL App (4 th) 130698 WC • The issue presented by this appeal concerns a matter of statutory interpretation. In particular, whether section 6(d) of the Act (820 ILCS 305/6(d) (West 2008)) limits the evidence a claimant may present regarding his or her work activities to only those activities occurring within the three years prior to the filing of the claimant’s application for adjustment of claim or manifestation date of his or her repetitive-trauma injury. • (L)ooking to the plain and ordinary language of section 6(d), we find no evidentiary limitation. Section 6(d) provides limits with respect to the filing of a claim for benefits, not what evidence may be presented to support any particular claim. • The real issue presented by the employer’s challenge to claimant’s testimony is whether evidence of her entire work history for the employer was relevant to her claim and admissible into evidence. This is an evidentiary issue that was for the Commission to resolve and was not governed by the Act’s statute of limitations.

Farris v. IWCC 2014 IL App (4 th) 130767 WC • Danny Farris v. Phoenix Corp. , 05 WC 026805, 07 IWCC 0409, 11 IWCC 0610 • On review, Petitioner maintains that his testimony is credible, unrebutted and consistent with the medical records. Petitioner asserts that any inconsistencies between his testimony and the medical records are minor and inherent in the history taking process. We find that Petitioner met his burden of proving he sustained accidental injuries arising out of and in the course of his employment with Respondent on April 26, 2005 • We find that Respondent's original stipulation regarding the duration of Petitioner's temporary total disability is binding. See Walker v. Industrial Comm'n, 345 Ill. App. 3 d 1084, 1088 (2004)

Farris v. IWCC 2014 IL App (4 th) 130767 WC • The Footnote: 1. We note that the employer could have challenged the circuit court’s initial reversal of the Commission in this appeal, but failed to do so. Pace Bus Co. v. Industrial Comm’n, 337 Ill. App. 3 d 1066, 1069, 787 N. E. 2 d 234, 236 -37 (2003). Therefore, the employer has waived any claim that the circuit court’s initial reversal order was erroneously entered. • The following background information is gleaned from the record on appeal without consideration of the transcripts contained within the claimant’s appendix. • On July 14, 2010, the arbitrator conducted a hearing on remand. The transcript for that hearing is included in the record on appeal. At that hearing, the arbitrator admitted the CT myelogram report into evidence and admitted the transcript of George’s inconsistent statement to Herwig for the limited purpose of impeaching his in-court testimony. The arbitrator did not hear testimony from any witnesses on July 14, 2010.

Farris v. IWCC 2014 IL App (4 th) 130767 WC • In the present case, the employer’s request for summons did not include the Commission inthe caption of the pleading. However, it is undisputed that the employer timely filed the requestfor summons with the circuit court, named the Commission as a party in interest in the body ofthe pleading, and listed its address and its attorney of record in the body of the pleading. In the present case, the employer’s request for summons did not include the Commission inthe caption of the pleading. However, it is undisputed that the employer timely filed the requestfor summons with the circuit court, named the Commission as a party in interest in the body ofthe pleading, and listed its address and its attorney of record in the body of the pleading • Rock Island County was not the county where the claimant could be found because heresided in Sangamon County. Therefore, we agree with the claimant that the employer shouldhave filed the request for summons in the circuit court in Sangamon County. However, webelieve that the circuit court properly transferred the case to Sangamon County.

Farris v. IWCC 2014 IL App (4 th) 130767 WC • Initially, we note that the employer argues that the arbitrator was in the best position to determine the claimant’s credibility. This is not the law. The Commission is the finder of fact, and it is the Commission that we owe deference on factual issues. • when a party appeals to the appellate court following the entry of a judgment of the circuit court in a workers’ compensation proceeding, it is the decision of the Commission, not the judgment of the circuit court, which is under consideration. • In the present case, the record does not include the testimony of the claimant. We must presume, therefore, that the Commission properly assessed the claimant’s credibility and considered his testimony along with other competent evidence in finding that a compensable accident occurred.

Omron Electronics v. IWCC 2014 IL App (1 st) 130766 WC • In summary, the evidence leads to the rational conclusion that Craig acquired Neisseria meningitides in Brazil, a country where the incidence rate of the Neisseria meningitides is 2 to 6 times higher than the rate in the United States. Craig's pre-existing upper respiratory infection made him more likely to acquire Neisseria meningitides and shortened the incubation period from two to ten days, to approximately two days. We reverse the Arbitrator's Decision and find that Belinda is entitled to an award of death benefits under Section 7(a), burial expenses under Section 7(f), and reasonable and necessary medical expenses in the amount of $ 10, 359. 69 under Section 8(a).

Omron Electronics v. IWCC 2014 IL App (1 st) 130766 WC • This matter involves a claim under the Illinois Workers’ Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2006)) and the Workers’ Occupational Diseases Act (Occupational Diseases Act) (820 ILCS 310/1 et seq. (West 2006)) filed by E. Belinda Bauer, wife and special administrator for Craig Bauer (employee), for benefits in connection with the death of the employee due to alleged exposure to Neisseria meningitides while on a business trip to Brazil for the employer, Omron Electronics. • The arbitrator held that the employee did not sustain an accident/exposure that arose out of and in the course of his employment. He found that the special administrator failed to prove, by a preponderance of the evidence, that the employee was infected with Neisseria meningitides while in Brazil. He found that the evidence in total supported a finding that the employee contracted meningitis while in the United States before he left for Brazil. • The special administrator sought review of this decision before the Commission. The Commission unanimously reversed the arbitrator’s decision. It found that the special administrator proved by a preponderance of the evidence that the employee acquired Neisseria meningitides during the course of his travels to Brazil. It found that the opinions of Dr. Stratton and Dr. Drew were more persuasive than the opinions of Dr. Coe and Dr. Zar.

Omron Electronics v. IWCC 2014 IL App (1 st) 130766 WC • The employer’s argument is not a legal argument, but one based on the sufficiency of the evidence. The Commission’s factual findings are reviewed under the manifest weight of the evidence standard. • Nothing in the statutory language requires proof of a direct causal connection. ” Sperling, 129 Ill. 2 d 416 (1989). A causal connection may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury. Consolidation Coal Co. 265 Ill. App. 3 d 830 (1994). “In addition, a chain of events suggesting a causal connection may suffice to prove causation even if the etiology of the disease is unknown. ” • The Commission found that the opinions of Dr. Stratton and Dr. Drew were more persuasive than those of Dr. Coe and Dr. Zar. The Commission is charged with resolving conflicts in medical opinion evidence. We cannot say based uponthe record before us that the Commission’s decision is contrary to the manifest weight of the evidence.

The Levy Co. v. IWCC 2014 IL App (1 st) 131338 WC • Jorge Merlos v. The Levy Co. , 08 WC 038667, 19(b) tried 10 -14 -09 • 9 -8 -10: Commission Decision affirms & adopts Arbitrator; based on the mechanics of Petitioner's accident, his course of treatment, the chain of events, the opinions of Doctors Bergin and Ghanayem and the law, the Arbitrator concludes that Petitioner's present condition of ill-being is causally related to accident of June 16, 2008 • Based on the opinions of Doctors Bergin and Ghanayem, the radiologist's interpretation of the lumbar MRI and the testimony of the Petitioner, the Arbitrator concludes that Petitioner is entitled to the prospective medical care that Dr. Bergin has recommended. • “Connected cases”: 06 WC 00534 v. Walsh, settled & approved 8 -1 -12; 06 WC 007848 v. The Levy Co. , settled & approved 8 -1 -12

The Levy Co. v. IWCC 2014 IL App (1 st) 131338 WC • After filing the two claims arising from his shoulder injuries, the claimant returned to work on May 31, 2007, subject to permanent restrictions. He apparently was engaged in full and unrestricted duty on June 16, 2008, when he suffered the back and neck injury that was the subject of claim number 08 WC 38667. • As a basis for his rejection of the settlement contracts, the arbitrator stated that he viewed the “presentation of [those contracts] as a way of circumventing” his ruling denying severance. The arbitrator further noted that Levy objected to the approval of the settlement contracts. In a notice to the Commission on July 19, 2012, Arbitrator Cronin reiterated this finding. The Commission entered an order approving each of the settlement contracts, making no reference to the severance issue. • Circuit Court entered an order (1) confirming the Commission’s jurisdiction to approve the settlement agreements; (2) denying Levy’s motion to set aside the agreements; (3) noting that case No. 08 WC 38667 is not settled and remains active; and (4) remanding that case to the Commission for further proceedings. Levy now appeals.

The Levy Co. v. IWCC 2014 IL App (1 st) 131338 WC • Levy first argues that the Commission was without jurisdiction to approve the settlement contracts for two of the three consolidated cases. According to Levy, the arbitrator’s denial of the motion to sever caused all three cases to remain pending; accordingly, the submission to the Commission of settlement contracts in two of those cases, without a reversal of the order denying severance, constitutes an impermissible interlocutory “appeal. ” This argument is unsupported and without merit. • Next, Levy argues that the Commission erred in accepting the settlement agreements without hearing testimony or reviewing evidence by the parties as to all three consolidated cases. Specifically, Levy contends that it will now be foreclosed on remand from presenting evidence or testimony in support of its theory of case number 08 WC 38667, that the claimant’s condition of ill-being was the cumulative result of all three injuries, as opposed to a separate and unrelated injury as maintained by the claimant. Levy also suggests that it was not given a full opportunity to present its case to the Commission. Again, Levy provides no legal support whatsoever for its perception that it will be prejudiced in its efforts to defend case number 08 WC 38667 before the arbitrator.

Rob Red Remodeling v. IWCC 2014 IL App (1 st) 130974 WC • Zenon Lemanski v. Bob Red Remodeling, 07 WC 035515, 12 IWCC 0229 • IT IS THEREFORE ORDERED BY THE COMMISSION that Respondent pay to Petitioner the sum of $ 466. 67 per week for a period of 168 -3/7 weeks, that being the period of temporary total incapacity for work under § 8(b) of the Act. • IT IS FURTHER ORDERED BY THE COMMISSION that Respondent pay to Petitioner the sum of $ 130, 174. 00 for medical expenses under § 8(a) of the Act. • IT IS FURTHER ORDERED BY THE COMMISSION that Respondent pay to Petitioner future reasonable and necessary medical expenses related to the traumatic brain injury and specifically pay for a home health care assistant three times a week for 8 hours a day under § 8(a) of the Act. • IT IS FURTHER ORDERED BY THE COMMISSION that commencing October 20, 2010 Respondent pay to Petitioner the sum of $ 466. 67 per week for life under § 8(f) of the Act for the reason that the injuries sustained caused the total permanent disability of the Petitioner. • IT IS FURTHER ORDERED BY THE COMMISSION that Respondent's Motion for Costs and Fees under Supreme Court Rule 206(e), Respondent's Motion to Suspend Benefits under Section 19(d) and Respondent's Motion for Sanctions under Supreme Court Rule 137 are hereby denied.

Rob Red Remodeling v. IWCC 2014 IL App (1 st) 130974 WC • It is undisputed that claimant, Zenon Lemanski, suffered a work-related accident on July 27, 2007, when he fell 11 feet from a rooftop while performing duties for respondent. underwent a left craniotomy, performed by Dr. Leonard Kranzler. • Claimant was examined by Dr. Victor Forys, at the request of his attorney… board certified in internal medicine; diagnosed traumatic brain injury • At respondent’s behest, claimant was examined by Dr. Felise Zollman recommended a neuropsychological assessment • Dr. Anna Wegierek, a psychologist, opined that claimant’s “neuropsychological instability” prevented him from continuing “his daily living activities without supervision”

Rob Red Remodeling v. IWCC 2014 IL App (1 st) 130974 WC • Respondent moved, inter alia, to terminate payment of benefits under the Act, arguing claimant’s failure to obtain appropriate care in accordance with Zollman’s recommendations constituted an injurious practice. See 820 ILCS 305/19(d) • The arbitrator denied respondent’s motion to terminate benefits, and he found that claimant was permanently and totally disabled. • Court went on to find that the Commission did not abuse its discretion in denying respondent’s motion to terminate benefits in accordance with section 19(d) of the Act (820 ILCS 305/19(d) (West 2010)). Respondent now appeals.

Rob Red Remodeling v. IWCC 2014 IL App (1 st) 130974 WC • Respondent raises four main issues. First, it challenges the Commission’s decision that claimant is permanently and totally disabled. Second, it contends that the Commission should have granted its motion to suspend benefits due to claimant’s purported refusal to follow Zollman’s recommendations regarding medical treatment. Third, it argues that Forys was not a “valid choice within [claimant’s] chain of referral of doctors pursuant to section 8(a)” of the Act (820 ILCS 305/8(a) (West 2010)). Fourth, it contends that the trial court erred in dismissing its case for its alleged failure to file an appropriate bond. • Claimant’s final point raises a question regarding our jurisdiction: submitted an affidavit stating that he is the president of Respondent and that he has authority to bind the corporation to any financial obligation. As such respondent complied with the requirements of the Act for perfecting an appeal.

Rob Red Remodeling v. IWCC 2014 IL App (1 st) 130974 WC • Respondent first argues that the Commission erred in finding claimant permanently and totally disabled. We review this finding using the manifest-weight standard. Thus, we will not reverse unless an opposite conclusion is clearly apparent. This is not the case here. • Benefits may be suspended or terminated if the employee refuses to submit to medical, surgical, or hospital treatment essential to his recovery, or if the employee fails to cooperate in good faith with rehabilitation efforts. Thus, the question before us is whether the course of treatment chosen by claimant was unreasonable. This issue presents a question of fact, which we review using the manifest-weight standard. We cannot say that this finding is contrary to the manifest weight of the evidence. Indeed, we note that, in essence, respondent is complaining that claimant chose to followthe advice of his treating physician rather than that of Zollman.

Rob Red Remodeling v. IWCC 2014 IL App (1 st) 130974 WC • Finally, respondent contends that Forys was not within the allowable chain of referral, as claimant had purportedly previously elected to treat with Kranzler and Gourineni, which would make Forys claimant’s third chosen doctor. This issue presents a question of fact subject to review using the manifest-weight standard. • If either Kranzler or Gourineni was not a choice with the meaning of Section 8(a), Forys would be claimant’s second choice and respondent would not be shielded from liability for his services. • We cannot say that the Commission’s conclusion that Kranzler was providing emergency services is against the manifest weight of the evidence. As noted, claimant was transported by ambulance to the emergency room • Moreover, given that this is a medical issue, we owe increased deferencethe Commission due to its expertise in such matters.

RG Construction v. IWCC 2014 IL App (1 st) 132137 WC • 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. ’”