WCLA MCLE 2009 WCLA MCLE Wrap Up Review

WCLA MCLE 2009 WCLA MCLE Wrap Up, Review & Update Wednesday December 30, 2009 12: 00 noon to 1 pm James R. Thompson Center Auditorium, Chicago, IL • 1 hour general MCLE credit • •

Economy Packing (January 2009) • Undocumented worker entitled to PTD • Zendejas v. J&J Brothers Construction, 09 IWCC 650 (6 -26 -09): “While awarding a determinate period of temporary total disability benefits…the Arbitrator ruled Petitioner could not receive ongoing temporary total disability benefits because Respondent's section 12 examiner, Dr. Kornblatt, determined Petitioner reached maximum medical improvement (MMI). The Arbitrator further considered Petitioner's present inability to work attenuated from his medical condition and, instead, a result of his immigration status as an illegal alien. To begin, a petitioner's immigration status has no bearing on his eligibility for any benefits under the Act. As the Illinois Appellate Court held in Economy Packing Co. , 387 Ill. App. 3 d 283, 295 (2008), ‘the Act allows workers' compensation benefits to be awarded to undocumented aliens and an award of such benefits is not preempted by federal immigration law. ’ Therefore, should the medical evidence prove Petitioner to be temporarily totally disabled, Petitioner may receive temporary total disability benefits. ”

City of Chicago (February 2009) • 48 hour rule does not begin with deposition • Corona v. Chicago Park District, 09 IWCC 580 (6 -9 -09): “Arbitrator rejected Respondent's § 12 examination report based on Marks v. Acme (found violation of the 48 hour rule in Section 12) finding the trial began with the initial doctor's deposition. Clearly, Respondent's § 12 here would be the same violation and the report properly rejected. Regardless, even if Marks is considered killed by Townsend v. City of Chicago, Respondent had from before (date of dep of treater) until the hearing began … to obtain their § 12 and did not get it until shortly before proofs closed. The fact that the trial had begun shows of itself a violation of the 48 hour rule as the report was clearly not tendered ‘prior to hearing’. ”

Hagene Settlement KTS (March 2009) • “Essentially, the Respondent wants us to decide this case in a vacuum, looking only to the four corners of the document…Fortunately, we do not find ourselves to be so constrained by IL law. ” • Settlement was for 30% loss of use of the arm: “That was the full extent of the settlement, thus making it clear that no part of the settlement was for past unpaid medical bills related to the incident. ” • “A waiver of important statutory rights must be explicit; ” compared to waiver of lien rights in Gallagher, 226 Ill. 2 d 208 • “When we consider the entire contract in the context of all surrounding circumstances, we conclude that the parties did not intend to discharge the Respondent’s statutory obligation to pay the Petitioner’s past related medical bills. What is clear from the surrounding circumstances is that the settlement was premised on the understanding that the Respondent had in fact paid all outstanding medical bills to the date of the settlement as indicated in the contract recital. ” • Update ? ? Does it really matter which box is checked?

Chamorro UR (March 2009) • • Bellamy v. Flexway, 09 IWCC 1090 (10 -27 -09): “After considering the entire record, the Commission modifies the Decision of the Arbitrator by vacating the award of prospective care, i. e. , the intradiscal biacuplasty recommended by Dr. Jain. The specific record before us does not convince us that Petitioner was a good candidate for this procedure as of …the date of the second 19(b) hearing. When the Arbitrator ordered the procedure, she cited a concession made by Dr. Babus, the utilization review physician who responded to Dr. Jain's appeal letter. Dr. Babus did in fact acknowledge that patients in a study … showed improvements in several pain assessments after undergoing intradiscal biacuplasty. This study, however, specifically excluded patients with pending workers' compensation claims, a fact noted by the Arbitrator. ” Early v. United, 09 IWCC 839 (8 -10 -09): “The Commission also affirms the Arbitrator's award of prospective surgery. The Commission, like the Arbitrator, assigns greater weight to the opinions of Petitioner's treating hand surgeon, Dr. Schiffman, than to those of Respondent's Section 12 examiner and utilization review physicians…the second utilization review physician, who addressed the appeal of the initial denial, acknowledged that ACOEM and ODG do not address the specific issues associated with the procedure. ” • UR: Win some ; lose some, based on quality of UR

Legislative Update (April 2009) • No news is good news? Or is it? Pressure up! • Don’t think that “collectively bargained workers’ compensation” or “alternative dispute resolution” will go away!!! • Tell your clients about the negatives!!! • Protect your job!!!

Overtime (May 2009) • • Lorea v. Centralia Correctional, 09 IWCC 1236 (11 -19 -09): “Petitioner testified that generally overtime for correctional officers such as himself was available ‘every day on every shift. ’ Correctional officers who wished to work OT put their names on a voluntary OT list. Because of personnel shortage, if not enough officers signed up, ‘people get mandated’…It is well established that ‘those hours in excess of an employee's regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each week’ should not be included in the AWW calculations. See Airborne Express, 372 Ill. App. 3 d 549 (2007). Respondent concedes that roll call pay in the sum of $33. 26 a week and one percent of Petitioner's OT pay in the sum of $2. 44 a week should be included in the AWW calculations, yielding an average weekly wage of $ 1, 033. 57. We find that the rest of Petitioner's OT wages is not includable in the AWW calculations. ” Bond v. PPG, 09 IWCC 0469 (5 -15 -09): “Overtime is excluded from the calculation of a claimant's AWW unless the claimant is required to work OT as a condition of her employment, or the OT hours are part of the claimant's consistent weekly schedule. Airborne Express. The Commission finds that Respondent adhered to a voluntary OT policy, in that only employees who voluntarily ‘signed up’ to work OT were ever contacted with OT opportunities. As such only employees who volunteered to work OT could be ‘forced’ to do so. ”

ADA (June 2009) • EEOC v. Sears, ND IL No. 04 C 7282: Record $6. 2 million settlement arising from a WC claim; “Sears maintained an inflexible leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. ” • Grabs v. Safeway 917 N. E. 2 d 122 (2009): "Does the Workers' Compensation Act give the Illinois Workers Compensation Commission the exclusive authority to determine whether an injured employee may return to work, such that when an employer is faced with conflicting medical opinions from the employee's doctor and the employer's IME, the employer may not rely upon the IME opinion to terminate the employee under the employer's attendance policy for failing to return to work, before the Commission has adjudicated the pending dispute over the conflicting medical opinions? “ Answer: YES! “An employer may not rely solely on an IME in terminating an employee for failing to return to work…”

Beelman Trucking (July 2009) • Petitioner entitled to both statutory (two member loss) permanent total and permanent partial disability losses • Any cases? • Christeen Kitchen v. City of Chicago, 09 IWCC 0374 (4 -16 -09): “Beelman Trucking, 381 Ill. App. 3 d (2009) indicating that there was overwhelming competent evidence from Petitioner's doctor, an occupational therapist, a rehabilitation consultant that a voice activated computer and environmental control system were appropriate appliances … It was deemed that said modifications would allow him to benefit both physically and psychologically. Based on the above set of facts and the Illinois case law, the Commission finds that Petitioner failed to provide sufficient medical/expert evidence to support the claim that an exterior second story lift is reasonable and necessary under Section 8(a) of the Act. ”

Smalley Steel Ring (August 2009) • Arbitrator’s final decision cannot be re-opened or set aside • Ricardo Estrada v. Complete Temporary Labor, 08 WC 31145: “Respondent's Motion alleges fraud on the part of Petitioner. It incorporates medical records not contained in the arbitration transcript. While the Commission is concerned about any allegation of fraud, it cannot venture outside the record and has no power to set aside the Decision of the Arbitrator. The Supreme and Appellate Courts have repeatedly made it clear that fraud is not a basis for extending the Commission's authority and that Section 19(f) allows recall of a decision ‘in only one instance, i. e. , to correct clerical or computational errors. ’ Smalley Steel Ring Company v. Illinois Workers' Compensation Commission, 386 Ill. App. 3 d 993, 996 (2 nd Dist. 2008). The Circuit Court is the appropriate forum for Respondent's allegations. Ming Auto Body v. Industrial Commission, 387 Ill. App. 3 d 244 (2008). ”

Circuit City Stores (September 2009) • Good Samaritan doctrine entitles chips’ rescuer to compensation • Any cases?

Penalties (October 2009) • Global Products, 911 N. E. 2 d 1042 (2009): Appellate Court takes away penalty award from cigarette smoker • Lenny Szarek, Inc. , 03 -08 -0530 -WC (October 20, 2009): “Respondent argues that the facts available to it justified its denial of benefits to claimant. We agree. It points to claimant's urine tests that revealed what it terms ‘severe marijuana intoxication’ and Leikin's opinions that were derived from them. Respondent also contends that it was entitled to rely on Paganelis and Parro. Those cases are distinguishable in that they involved alcohol rather than marijuana; however, since we had not articulated this distinction with any degree of detail in the past, respondent was not unreasonable in seeking to analogize the present situation to those cases. In sum, a reasonable person in possession of the facts available to respondent could have concluded that claimant was not entitled to benefits under the Act. In any event, we do hold that an opposite conclusion to that drawn by the Commission is clearly apparent. Accordingly, the Commission decision to award penalties and fees was erroneous given the state of the record in this case. ”

Elmhurst Park District (November 2009) • Released for publication December 7, 2009: Fitness supervisor not engaged in voluntary recreational program when injured playing wallyball

Interstate Scaffolding (November 2008) • Argued in IL Supreme Court 9 -24 -09; available at www. state. il. us • Querio, 09 IWCC 1057: TTD cut off for period of “suspension” for failing random drug test • Moody, 09 IWCC 294: TTD cut off on retirement • Watts, 09 IWCC 332: TTD cut off after firing for saying something “reprehensible” about a coemployee • Baize, 09 IWCC 293: TTD not cut off; P resigned but went to work for another ER

The Interstate Scaffolding Problem Watts v. Ingalls, 09 IWCC 332 • “But there was no damage to property here as in Interstate Scaffolding. There was no harmful or offensive touching. There was no threatening or intimidating behavior. There was no assault. Without meaning to minimize what happened, it was offensive language, not conduct, and all parties agree it was not aimed directly at Ms. Ohern. If Ms. Greiss had not repeated it to her, there would have been no offense taken by Ms. Ohern…The Arbitrator has closely read and considered the Interstate Scaffolding case, which was decided 3 -2, and the Arbitrator would prefer more information as suggested in Justice Dixon's dissent. Would a similar employee who was not on light-duty have been terminated under the same circumstances, without one of the less severe steps being taken first? This case was tried before Interstate Scaffolding was published, and so there is no evidence in the record about that. But the majority decision does not require it in any event. In the absence of that, however, it is possible that the respondent merely took advantage of the situation, terminated the petitioner, and cut off their liability for future TTD benefits. In any event, the Arbitrator has no jurisdiction to resolve employment disputes. He is not empowered by the Interstate Scaffolding case to make inquiries along those lines, because apparently it is not considered relevant. As indicated above, the Arbitrator then feels he has no choice but to follow the Court's lead. ”