WCLA MCLE 2 29 12 Three Cases in

WCLA MCLE 2 -29 -12 • Three Cases in Sixty Minutes: Recent Appellate Court Decisions (Professional Transportation; Gruszeczka; Patel) • Wednesday February 29, 2012 • 12: 00 pm to 1: 00 pm • James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit

Professional Transportation v. IWCC No. 3 -10 -0783 WC, filed 1 -19 -12 • 03 WC 036743: DA 3/26/03 • Petitioner Barry Clarke, 60 yo van driver injured right knee stepping out of van • 4 -8 -03 Dr. Michalow does scope R knee • 10 -24 -04 Dr. Sheinkop does bilateral knee replacements (no causation L knee; can drive) • 7 -26 -05 Respondent IME Dr. Cohen ; RTW van driver • 9 -27 -05 FCE light/medium • 9 -29 -05 Petitioner IME Dr. Fletcher says sedentary work • Looked for work? ; 9 leads from VE (former air traffic controller and weather observer) • Disputed testimony that Respondent offered RTW (Commission says Arb incorrectly allowed testimony over hearsay objection) • VE says Petitioner can work as cashier

Professional Transportation v. IWCC No. 3 -10 -0783 WC, filed 1 -19 -12 • • • Arbitrator’s Decision: 65% loss of use of the right leg; no causation on left leg Commission Decision: “Commission finds that Petitioner provided sufficient evidence to prove up the fact that he is an odd-lot permanent total…pursuant to Section 8(f)” Overall, the Petitioner presented evidence that both supports and negates a finding of an "odd-lot" permanent total under Section 8(f) of the Act. It is likely that Petitioner could find some sit down/sedentary job and/or light to lightmedium job given his potential transferable skills, education and experience. However, it appears that Petitioner's age, Mr. Wolf's opinion that Petitioner has nontransferable skills and Petitioner's current physical restrictions and condition weigh heavier against finding that Petitioner is employable in a regularly wellknown branch of the labor market than does the possible that he has potential transferable skills, education and experience that would weigh in favor of such employment. The Supreme Court has stressed that an employee need not be reduced to total physical incapacity before a permanent total disability award may be granted. Furthermore, it is sufficient that one who, though not altogether incapacitated to work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market may qualify as an "odd-lot" permanent total. See City of Chicago 373 Ill. App. 3 d 1080 (2007).

Professional Transportation v. IWCC No. 3 -10 -0783 WC, filed 1 -19 -12 • • • Appellate Court: On appeal, Professional argues that the Commission's award of PTD benefits to the claimant on an "odd-lot" basis is against the manifest weight of the evidence An injured employee can establish his entitlement to PTD benefits under the Act in one of three ways, namely: by a preponderance of medical evidence; by showing a diligent but unsuccessful job search; or by demonstrating that, because of age, training, education, experience, and condition, there are no available jobs for a person in his circumstance. In this case, there is no medical evidence which could support a claim of total disability Further, in his brief before this court, the Petitioner makes no argument that applying for cashier positions at nine auto dealerships and looking in the Sunday newspaper constituted a diligent job search. We agree with the arbitrator that the evidence fails to support a finding that the Petitioner’s meager efforts to find work constituted a diligent but unsuccessful job search. Petitioner, who is not obviously unemployable, had the burden of proving by as preponderance of the evidence that he is so handicapped that he will not be employed regularly in any well-known branch of the labor market Wolf, Professional's vocational rehabilitation expert, concluded that Petitioner was capable of performing the duties…In contrast, Petitioner failed to introduce any evidence that there is no stable job market for a person of his age, skills, training, work history, and physical condition.

Patel v. Home Depot No. 1 -10 -3217, decided 2 -2 -12 • • • 10 -20 -03: 19(b) tried after TTD cut-off on 2 -14 -03 and further treatment denied Respondent stipulated that TTD owed from 11 -29 -01 to 10 -29 -02 (48 wks) and then paid “advances” through 2 -14 -03 (15 wks) 11 -2 -05: Commission awards “ 35 4/7 weeks TTD” for unspecified period (2 -14 -03 cut off to 10 -20 -03 hearing date? ) Note that 11 -29 -01 to 10 -20 -03 is 98 wks of TTD not 35 4/7 wks Commission also awards 19(k), 19(l) and 16 AF (total $22, 000) Commission gives Respondent unspecified “credit for its payment of $32, 357. 47. ” (TTD paid plus advances? ) Petitioner’s math: (98 weeks TTD + penalties + interest) – credit = $$ owed ($35, 000 + $22, 000 + $7, 000) - $32, 000 = $22, 000 Respondent’s math: (35 weeks TTD + penalties) – credit = No $$$ owed ($10, 000 + $22, 000) - $32, 000 = 0 4 -10 -09: Commission denies Petitioner’s Motion for Penalties and Fees for nonpayment of award (filed 2 -06? ); “dispute about what is payable, but Commission has no enforcement authority” and 19(g) provides for enforcement; Scott, 184 Ill. 2 d 202 (1998) says no penalties on penalties; pending 19(k) prevents filing of 19(g), Keystone Steel, 228 Ill. App. 3 d 429 (1992)

Patel v. Home Depot No. 1 -10 -3217, decided 2 -2 -12 • • • Petitioner files 19(g); Respondent files Motion to Dismiss “on the grounds that it was entitled to offset the credit against the benefit award. ” Judgment entered for Petitioner ($22, 000) plus $47, 000 attorneys fees, $5300 costs and $13, 000 interest The instant case involves the construction of section 19(g) of the Act (820 ILCS 305/19(g) (West 2008)). The construction of a statute is a question of law, which is reviewed de novo Home Depot sought involuntary dismissal of Patel's application for entry of judgment on the grounds that Home Depot does not owe Patel anything. Home Depot claims the decisions of both the arbitrator and the Commission "destroy" Patel's claim, as both state an award in favor of Patel and also the credit that Home Depot is entitled to because of its previous overpayments. Because the amount of the credit exceeds the amount of the award, Home Depot posits that the credit offsets the award to Patel and therefore Home Depot owes Patel nothing. We disagree. Although Home Depot may ultimately obtain the credit the arbitrator and the Commission granted, it is not entitled to that credit under section 19(g). See Illinois Graphics Co. v. Nickum, 159 Ill. 2 d 469 (1994). In the case sub judice, unlike the situation in Messamore, section 19(g) controls, so this court must follow the principle set forth in Illinois Graphics. Moreover, Home Depot is not seeking to apply its credit against future payments, but against the payment of benefits to which Patel was previously entitled.

Gruszeczka v. IWCC N 0. 2 -10 -1049 WC, filed 2 -14 -12 • 4 -20 -09: Commission decision affirming Arbitrator’s denial of benefits received by Petitioner’s attorney • 5 -4 -09: Petitioner’s lawyer mailed Review to Clerk of Circuit Court of De. Kalb County according to affidavit (14 days) • 5 -14 -09: Review file-stamped (24 days) • Respondent files Motion to Dismiss for late filing and to change venue • Motion to dismiss denied and motion to change venue granted (Mc. Henry) • Mc. Henry denies reconsideration of Motion to Dismiss and confirms Commission’s denial of benefits • Parties cross appeal to Appellate Court

Gruszeczka v. IWCC N 0. 2 -10 -1049 WC, filed 2 -14 -12 • • • Section 19(f)(1) of the Act provides that a proceeding for judicial review of a Commission decision “shall be commenced within 20 days of the receipt of notice of the decision. ” The timely filing of a request for the issuance of a summons and the timely exhibition of proof of payment for the probable cost of the record are jurisdictional requirements which must be strictly adhered to to vest subject-matter jurisdiction Petitioner urges the adoption of a “mailbox rule” applicable to the commencement of an action in the circuit court for judicial review under section 19(f)(1) of the Act, asserting that the time of the mailing of the documents necessary to prosecute such action is the time of filing for jurisdictional purposes We believe, however, that the reliance upon Harrisburg-Raleigh Airport Authority is misplaced, and we decline to follow Norris for the following reasons If a mailbox rule were to be engrafted upon the 20 -day commencement period mandated in section 19(f)(1), it is the legislature that must do so, not the judiciary under guise of statutory interpretation To commence means to begin or to start (Webster’s Third New International Dictionary 456 (1981)). . cannot understand how one can begin or start any action in the circuit court before the necessary documentation is presented to the clerk of the court…we vacate the judgment of the circuit court as having been entered in the absence of subject-matter jurisdiction and we dismiss the claimant’s appeal STEWART & HOLDRIDGE, dissenting: agree with the claimant and would hold that the mailbox rule applies to the filing of appeals from the Commission to the circuit court. Therefore, I respectfully dissent…Guidance in previous decisions which hold the mailbox rule applicable to the filing of jurisdictional documents in appeals. In doing so, I note that the mailbox rule has been applied to the filing of a petition for review from an arbitrator to the Commission…Ambiguity should be resolved in favor of mailbox rule

Gruszeczka v. IWCC N 0. 2 -10 -1049 WC, filed 2 -1 • What about general mailbox rule? (5 ILCS 70/1. 25): Unless An Act otherwise specifically provides, any writing of any kind or description required or authorized to be filed with, and any payment of any kind or description required or authorized to be paid to, the State or any political subdivision thereof, by the laws of this State: (1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark • What about other instances of mailbox rule in WC rules? At least 6 instances? For example, 7040. 10(d)(2)(B), authenticated transcript; 7040. 70(e)(2), statement of exceptions (both 2 days mailing time) • Venue? 19(f)(1) says “the county where any of the parties defendant may be found”

Fourth Bonus Case • Will County Forest Preserve District v. IWCC, No. 3 -11 -0077 WC, Opinion filed February 17, 2012 • However, respondent’s argument assumes that an injury to the shoulder is an injury to the arm. This court has not had occasion to consider the classification of a shoulder injury. Whether an injury to the shoulder is an injury to the arm under the statutory schedule presents an issue of statutory construction…Because the plain and ordinary meaning of the statute establishes that the arm and the shoulder are distinct parts of the body, if claimant sustained an injury to his shoulder, an award for a scheduled loss to the arm would be improper…Since claimant’s shoulder injury does not qualify as a scheduled loss to the arm, we turn to other provisions of the Act for guidance…We find applicable the first subpart of section 8(d)2. That provision provides for a person-as-a-whole award where the claimant sustains serious and permanent injuries not covered by section 8(c) or 8(e) of the Act…As such, we hold that benefits are proper under the first subpart of section 8(d)2 • Shoulder is not ARM! Shoulder is MAW! Matter of Law?