WCLA MCLE 2 27 13 More Appellate Court

WCLA MCLE 2 -27 -13 • More Appellate Court Cases & More AMA Cases • Wednesday February 27, 2013 • 12: 00 pm to 1: 00 pm • James R. Thompson Center , Chicago, IL • 1 Hour General MCLE Credit

Martha Aragon v. U of I Hospital 00 WC 002595 • • • Arbitration Decision 1/29/2009 DA 10/21/1999 54 year old cleaner “Noticed pain in her hands” Dr. Gonzalez & Dr. Fernandez diagnosed work-related bilateral carpal tunnel IME Dr. Papierski says no causation Dr. Bittar does bilateral CTR SX; “incomplete recovery” Job offer? Job search? “Causally related to an aggravation of her CTS by her work activities over the years of her service” Medical & TTD awarded 25% right hand & 22. 5% left hand Cross reviews filed

Martha Aragon v. U of I Hospital 10 IWCC • Commission Decision 5/26/2010 • Commissioner Dauphin: “Modifies and corrects the Decision of the Arbitrator as stated below and otherwise affirms and adopts; ” Agrees no PTD; Affirms medical, TTD & PPD • Commissioner Mason: Concurring & Dissenting; Affirm causation; Would award odd-lot PTD (not bona fide job offer and VE testimony) • Commissioner Lindsay, Dissenting: “I respectfully disagree on the issue of causation. ”

U of I Hospital v. IWCC 2012 IL App(1 st)113130 WC • • Appellate Court 12/21/2012 Vacate the judgment of the Circuit Court and remand the cause to the Commission for entry of a final decision with regard to the claimant’s request for Permanent disability benefits Ordered supplemental briefing on the issue of jurisdiction Subject matter jurisdiction cannot be waived, stipulated to, or consented by the parties. Only final determinations of the Commission are appealable…if it determines the litigation on the merits and it is not final if the order leaves disputed matters pending and undecided 19(e): “a decision of the Commission shall be approved by a majority of 3 members of the Commission. ” The two Commissioners who found that claimant was entitled to benefits did not agree with regard to a permanency award; the third Commissioner found that claimant was not entitled to benefits because of no causation Not final because no 19(e) majority

Linda Dye v. Plymouth Tube 09 WC 033325 • • Arbitration Decision 05/10/2010 DA 1/27/2007 53 yo furnace operator struck in head by steel cylinder Concussion & closed head trauma; RTW within about 1 week; follow up by Dr. Ricca 2/29/2009 “separately” follow up treatment with Dr. Garg; “no problem” 4/23/2010 follow up with Dr. Lomax of Soderstrom Dermatology from Yellow Pages; “dent” in head recommends “fat grafting” 4/30/2010 At hearing Arbitrator “took notice” of “that indentation” Arbitrator denies treatment with Dr. Lomax (past and prospective) as violation of “ 2 doctor rule”

Linda Dye v. Plymouth Tube 09 WC 033325; 11 IWCC 0206 • • • Commission Decision 2/28/2011 No dispute regarding causation No violation of “ 2 doctor rule”: Accordingly, with Dr. 's Amit Garg, Ricca and Rakesh Garg all within the same referral chain, Dr. Soderstrom becomes Petitioner's second physician choice, and thus is not outside the 2 -doctor rule. The Commission also affirms the Arbitrator's denial of prospective medical benefits for Petitioner's cosmetic surgery. Dr. Rakesh Garg noted that Petitioner's physical exam was unremarkable, and, even after noting the indentation, opined that nothing else needed to be done…there was no major problem with Petitioner's right frontal area. The facts in this claim do not seem to rise to the level of those in Williams v. Village of Bellwood, which awarded a claimant compensation for a disfigurement. 01 I. I. C. 0857. Accordingly, there is no precedent for awarding medical expenses for a procedure such as that prescribed to Petitioner where the evidence is at best unclear as to whether Petitioner has an observable disfigurement. Prospective medical denied; penalties denied

Dye v. IWCC 2012 IL App (3 d) 110907 WC • Confirmed by La. Salle County Circuit Court • Appellate Court Decision 12/31/2012; reverse in part (prospective medical) affirm in part (denial of penalties) • 8(a) “incurred…even if they have not been performed or paid for” • Commission Decision against the manifest weight of the evidence • Petitioner suffered a disfigurement as defined by the Supreme Court in Superior Mining 309 Ill. 339 (1923) • Observable to the naked eye • Different standard of severity for 8(a) medical and 8(c) permanency? • Affirm denial of penalties under manifest weight • Dissent: “Simply showed it (dent) to the Arbitrator; ” No photos are a “red flag; ” maybe Arbitrator was being sarcastic!

820 ILCS 305/8. 1 b 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.

Basic AMA Guides Analysis • • Maximum Medical Improvement Determine Diagnosis (DBI) & Class (CDX) (0 -4) Default Impairment is middle # in array of 5 in CDX Adjust Default by Net Adjustment for Grade Modifiers (GM): – Functional History (FH) (0 -4) – Physical Examination (PE) (0 -4) – Clinical Studies (CS) (0 -4) • Net Adjustment for each GM is GM minus CDX • Move Default Impairment to left or right based on Net Adjustment Formula (e. g. -2 net adjustment moves 2 spaces to left) • Never leave the CDX (e. g. +4 does not go into next CDX) • Combine Impairments if necessary

Terry Wadkins v. Pinckneyville Correctional Center 12 WC 02866 Commission Affirms Award with NO AMA Guides • • • Date of arbitration: 06/12/2012 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 1 -31 -13 Unanimous Commission Affirms & Adopts

AMA Guides Commission Decisions • • • Frederick Williams v. Flexible Staffing, Inc. 11 WC 046390 Zachary Johnson v. Central Transport 11 WC 041328 Jeffrey Garwood v. Lake Land College 12 WC 004194 Shawn Dorris v. Continental Tire 11 WC 046624 Michael Arscott v. Con-Way Freight 12 WC 003876 Robert Riley v. Con-Way Freight 12 WC 011083 Curtis Oltman v. Continental Tire 12 WC 011777 Timothy Brown v. Con-Way Freight 12 WC 004657 Martha Mansfield v. Ball Chatham CSD 12 WC 014648

Frederick Williams v. Flexible Staffing 11 WC 046390 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. 1 b (factors i-v) • • •

Frederick Williams v. Flexible Staffing 11 WC 046390 Factor (i) Reported Level of Impairment • • • 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. 1 b(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. 3 c, 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 = Net. Adjustment +1 Move one space to right from default C 5% = 6% UEI x 60% = 4%WPI (Table 15 -11, pg. 420)

• • • Frederick Williams v. Flexible Staffing 11 WC 046390 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 11 WC 046390 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). ”

• • Frederick Williams v. Flexible Staffing 11 WC 046390 Determination of PPD “Not simply a calculation, but an evaluation of all five factors” as stated in 8. 1 b No sole determinant “Therefore applying section 8. 1 b” PPD is 30% loss of use of the right arm Status: Respondent filed Petition for Review, 12 -6 -12; ROR 3 -15 -13

Zachary Johnson v. Central Transport 11 WC 041328 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. 1 b (Factors i-v)

Zachary Johnson v. Central Transport 11 WC 041328 Factor (i) Reported Level of Impairment • • • 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)

• • • Zachary Johnson v. Central Transport 11 WC 041328 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)

• • Zachary Johnson v. Central Transport 11 WC 041328 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)

• • Zachary Johnson v. Central Transport 11 WC 041328 Determination of PPD “Not simply a calculation, but an evaluation of all five factors” as stated in 8. 1 b No sole determinant “Therefore applying section 8. 1 b” PPD is 10% loss of use of the right hand Status: 9 -20 -12 Settlement contract approved (8. 5% hand)

Jeffrey Garwood v. Lake Land College 12 WC 004194 • DA 9 -12 -11 • 54 yo vocational computer instructor • Left knee arthroscopy medial & lateral meniscus tears (debrided) & chondromalacia (chondroplasy & synovectomy) • “Petitioner was examined by Dr. Joseph T. Monaco at Respondent’s request on August 3, 2012…provided an impairment rating” • (i) 8% impairment of lower extremity (Closely deposed: “The Arbitrator notes these concessions by Dr. Monaco”) • (ii) Now instructor in construction occupations • (iii) No evidence as to impact of age • (iv) Could be issues with accommodations if he were to lose job • (v) Credible testimony as to pain and stiffness; corroborated by diagnoses and need for surgery; objectively corroborated by IME • Award: 20% loss of use of the left leg • Status: Respondent filed Petition for Review 1 -25 -13; ROR 3 -29 -13

Shawn Dorris v. Continental Tire 11 WC 046624 • DA 9 -18 -11 • 38 yo tire press operator • Left wrist arthroscopy for repair of peripheral TFCC tear by Dr. David Brown • “At the request of Respondent’s counsel, Dr. Brown prepared a permanent partial disability impairment report dated August 27, 2012” • (i) 6% upper extremity impairment (report admitted) • (ii) press operator is “labor-intensive job” • (iii) “somewhat younger”… “PPD more extensive” • (iv) no alleged future earning capacity impact • (v) loss of motion; pain; loss of strength; home activities • Award: 13% loss of use of the hand • Status: Arbitration Decision Rendered 11 -27 -12

Michael Arscott v. Con-Way Freight 12 WC 003876 • • • DA 1/10/2012 57 yo freight truck driver “Arthroscopic surgery to repair the meniscus” “Respondent had Dr. Sanjay Patari, an orthopedist, perform an AMA Impairment Rating. ” (report admitted) (i) PPI rating of 20% lower extremity, 8% whole person [Table 16 -3; pg. 509; adjustment must have been -1 to move to B position 20% for CDX Class 2 Meniscal injury Total (medial and lateral)] (ii) usual employment (iii) 57 years old on date of loss (iv) regular job (v) residual symptoms which are generally consistent with the surgery performed Award: 20% loss of use of the left leg Status: Arbitration Decision Rendered 1 -24 -13

Robert Riley v. Con-Way Freight 12 WC 003876 • • • DA 12/05/2011 46 yo truck driver sales representative DX proximal fibular FX and ACL tear (R leg) 2/27/2012 Dr. Mc. Intosh performed ACL repair (i)“ 8/31/2011 at the request of the claimant’s attorney, Dr. Mc. Intosh prepared a PPI rating pursuant to the AMA Guidelines (sic)… opined the Petitioner had 7% impairment of the extremity, 3% WPI. PX 2, RX 2” (ii) returned to usual employment (iii) 46 yo on date of loss (iv) no evidence of diminished earning capacity (v) stiffness, achiness, weather sensitivity, ladder difficulty “generally consistent with the surgery reflected in the records of Dr. Mc. Intosh” Award: 27. 5% loss of use of the left leg Status: 2 -13 -13 Respondent filed Review

Curtis Oltman v. Continental Tire 12 WC 011777 • • • DA 1/31/2012 49 yo labor trainer Non-displaced fracture of the left “wrist” (R hand dominant) Dr. Brown splinted and treated (i) “ 3/15/2012 Dr. Brown prepared an AMA rating report in which he opined that the claimant had a 0% impairment at the level of the left wrist. RX 2. Dr. Brown testified in deposition in support of his findings and treatment course, as well as the bases for his impairment rating. See generally RX 1. ” (ii) returned to usual and customary employment (iii) 49 yo (iv) continues to work as before the incident (v) The claimant described some minor residual symptoms in his wrist Award: 5% loss of use of the left hand Status: 1 -28 -13 Respondent filed Review

Timothy Brown v. Con-Way Freight 12 WC 004657 • • • DA 10/18/2011 51 yo freight truck driver sales representative Full thickness rotator cuff tear Left shoulder 12 -16 -11 Dr. Davito performed rotator cuff repair surgery (i) “At the Respondent’s request, the claimant was examined by Dr. David Fetter, an orthopedist, on 9/11/2012. See RX 2. Following the examination, Dr. Fetter prepared a report including an AMA impairment rating, which he calculated to be 6% upper extremity impairment, which converted to 4% whole person impairment. ” (ii) returned to his usual employment (iii) 51 years old (iv) continues to work in that position at the same rate of pay (v) “Claimant described some weakness and fatigue in the shoulder, with occasional swelling and pain. While the weakness is not well borne out in the records, the occasional discomfort is consistent with the undisputed surgery…though his treating orthopedist does not assess permanent disability or limitations. ” Award: 10% loss MAW (would be about 20% arm due to Will County) Status: 1 -14 -13 Arbitration Decision Rendered

Martha Mansfield v. Ball Chatham CSD 12 WC 014648 • • • DA 11/3/2011 58 yo bus driver and custodian 3/6/12 Dr. Schopp performs left medial menisectomy and cyst decompression (i) 6/15/12 Respondent’s IME Dr. Michael Lewis deposed: “impairment was 1% of a lower extremity…Dr. Lewis acknowledged that impairment as defined by the Guides was not the same as disability. . . unable to produce intake form…focused on Petitioner’s condition at the time of the examination” (? Of MMI? ) (ii) Extensive description of job duties; “given job duties PPD will be larger than individual who performs sedentary or desk work. ” (iii) 58 yo “no testimony concerning how long she expected to continue to work” (iv) Future earning capacity is “relatively undiminished” (v) “Petitioner testified” weakness, pain, decreased range of motion, weather changes; Arbitrator find Petitioner was credible; “corroborated by PT records” “Not simply a calculation, but an evaluation of all the factors…No single factor” Award: 17. 5% loss of use of the left leg Status: Arbitration Decision Rendered 1/07/2013