WCLA MCLE 3 28 13 Recent Appellate Court

WCLA MCLE 3 -28 -13 • Recent Appellate Court Cases: 8(j) & Retirement; 19(h) & TTD; Mental/Mental • Thursday March 28, 2013 • 12: 00 pm to 1: 00 pm • James R. Thompson Center , Chicago, IL • 1 Hour General MCLE Credit

Section 8(j) • (j) 1. In the event the injured employee receives benefits, including medical, surgical or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recovery existed under this Act, then such amounts so paid to the employee from any such group plan as shall be consistent with, and limited to, the provisions of paragraph 2 hereof, shall be credited to or against any compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under this Act. In such event, the period of time for giving notice of accidental injury and filing application for adjustment of claim does not commence to run until the termination of such payments. This paragraph does not apply to payments made under any group plan which would have been payable irrespective of an accidental injury under this Act. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against him by reason of having received such payments only to the extent of such credit… 2. Nothing contained in this Act shall be construed to give the employer or the insurance carrier the right to credit for any benefits or payments received by the employee other than compensation payments provided by this Act, and where the employee receives payments other than compensation payments, whether as full or partial salary, group insurance benefits, bonuses, annuities or any other payments, the employer or insurance carrier shall receive credit for each such payment only to the extent of the compensation that would have been payable during the period covered by such payment.

Richard Bilson v. Wood Dale Electric 07 WC 030342 • DA 8 -7 -06 • 60 yo journeyman electrician fell and injured left shoulder ($37. 80/hr) • 8 -18 -06 Dr. Patek operates on full thickness rotator cuff tear • 2 -28 -07 FCE medium duty • Respondent does voc rehab • 9 -13 -07 Respondent “consents” to Petitioner taking school bus driver job, 20 hours at $12. 50 • No SSDI, but 3 pensions “vested as a matter of right; ” $4674. 40 gross per month

Richard Bilson v. Wood Dale Electric 07 WC 030342 • • Arbitrator awards 8(d)1 wage-differential $841. 33/week ($37. 80 x 40=$1512; 12. 50 x 20 = $250; $1512 -250=$1262 x 2/3 =$841. 33) Section 8(j) should be read as a whole. Paragraph 1 states that the condition precedent for an employer to receive credit "consistent with and limited to Paragraph 2", is receipt of benefits from "any group plan covering non-occupational disabilities contributed wholly or partially by the employer". Moreover, Paragraph I further states that "this paragraph does not apply to payments made under any group plan which would have been payable irrespective of an accidental injury under this Act". Respondent posits that Paragraph 2 should be read in isolation from Paragraph 1. This is not how Section 8(j) should be interpretted. The Arbitrator finds that Respondent is not entitled to a credit pursuant to Section 8(j) against any future wage differential payments payable to Petitioner, in accordance with Section 8(d)1. Illinois courts have consistently drawn a distinction between Disability Payments and Non. Disability Payments. Illinois courts have consistently held that employers receive no credit for benefits which would have been paid irrespective of the occurrence of a workers' compensation accident. Tee Pak, Inc. v. Industrial Commission, 141 Ill. App. 3 d 520 (1986). In this case there is no dispute between the parties that the 3 pensions Petitioner qualifies to receive on or after his 62 nd birthday are payable as a matter of right, and not contingent upon the showing of any duty disability.

Richard Bilson v. Wood Dale Electric 09 IWCC 0083 • 1 -27 -09 • The Arbitrator awarded a wage differential of $ 841. 51. However, the current average weekly wage in Illinois at the time was $ 840. 65, which was the maximum wage differential that could be awarded. The Commission modifies the award of the Arbitrator accordingly. • In addition, the Arbitrator found that Respondent was not entitled to any credit for pension benefits to which Petitioner was to receive. Petitioner testified that he had been a journeyman electrician for 42 years, 20 of which for Respondent. He planned on retiring upon his 65 th birthday prior to his accident; Petitioner was 60 years of age at the time of arbitration. The Commission finds that Respondent should be entitled to credit for pension benefits, but only for the pension benefits Petitioner accrued during the period of time he actually worked for Respondent. The Commission remands the case to the Arbitrator to determine the credit due Respondent based on the accrual of pension benefits during Petitioner's employment with Respondent.

Richard Bilson v. Wood Dale Electric 11 IWCC 0286 • • • 3 -19 -10 Arbitrator Decision: Respondent is entitled to a credit in the sum of $ 432. 40/wk commencing on May 27, 2008 and for the duration of Petitioner's disability, as and for pension benefit credits based on the accrual of pension benefits during Petitioner's employment with Respondent, pursuant to Section 8(j)(2) of the Act. 3 -2 -11 Commission Decision: Timely Petition for Review having been filed by the Petitioner and Respondent herein and notice given to all parties, the Commission, after considering the issues of wage rate, 8(j) credit, permanent partial disability, and being advised of the facts and law, affirms and adopts the Decision of the Arbitrator, which is attached hereto and made a part hereof. 10 -25 -11 Circuit Court (11 L 50366): Sets aside that part of the Commission's decision awarding Wood Dale a credit; "The parties disagree as to whether and to what extent (Bilson) is entitled to pension payments, given that he apparently has not yet retired. The record before this Court is insufficient to resolve the dispute. Therefore, this case is remanded to the Commission to determine, as a factual matter, the extent to which (Bilson) is entitled to receive pension benefits. Because his pensions are not disability pensions, (Bilson) will be entitled to receive the same amount from his pensions as he would have had his injury never occurred. "

Wood Dale Electric v. IWCC 2013 IL App(1 st) 113394 WC • • 2 -11 -13 Before addressing the issues raised by Wood Dale, we find need to address the question of our own jurisdiction. Although neither party raises a jurisdictional issue, we have a duty to consider our jurisdiction and to dismiss this appeal if our jurisdiction is lacking… However, there lies an important distinction between the typical remand order and the circuit court's remand order in this case: here, the remand order was entered in excess of the circuit court‘s jurisdiction. . . The circuit court did not, however, enjoy jurisdiction over any issues relating to the claimant's right to the pension benefits themselves, as such matters are not governed by the Act… When a court acts beyond its limited jurisdiction, the portion of the judgment that exceeds the court's jurisdiction must be considered void and must be vacated. The parties agree that Wood Dale presents us with an issue of statutory interpretation. The interpretation of a statute is a issue of law, and we review it de novo… Here, the parties do not dispute that the pension payments, unlike those in Tee-Pak and Elgin, are the result of normal pension retirement benefits, wholly unrelated to the claimant's workers’ compensation accident. Accordingly, under the rule in Tee-Pak and Elgin, those payments cannot entitle Wood Dale to a credit against its liability under the Act. In the alternative to its credit argument, Wood Dale asserts that the claimant should not be entitled to a wage differential benefit under the Act because he has voluntarily removed himself fromthe work force by electing to retire. We disagree.

Section 19(h) • “[A]s to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months, or 60 months in the case of an award under Section 8(d)(1), after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished, or ended. On such review, compensation payments may be re-established, increased, diminished, or ended. ” 820 ILCS 305/19(h) (West 2010).

Tony L. Curtis v. IWCC & Village of Lansing 11 L 50114 • • • DA 9 -1 -00 (02 WC 005894) 1 -25 -05: Arbitrator Decision: 40% hand (final) 1 -21 -10: Petitioner files Petition for medical and TTD (Respondent paid all stipulated medical expenses and stipulated that Petitioner was off work for 18 weeks) 1 -13 -11: Commission denies TTD, finding that “Maintenance under a vocational rehabilitation situation is provided under Section 8(a), but that is not the same as TTD…no provision of Section 8(a) provides the relief sought by the Petitioner” BUT, 8(a): “physical, mental and vocational rehabilitation” including maintenance AND WHAT ABOUT 8(b): “continuing as long as the total temporary incapacity lasts” Cir. Ct. : hinges entirely on the legal question of whether Section 19(h) bars Petitioner from seeking TTD more than 30 months after award De novo review Circuit Court says Section 8 has no time limit but 19(h) does (Isn’t that the point? !) N 0 discussion of Poore (you don’t need increase in PPD to get TTD) Ickes v. H&F, 04 IIC 0502: TTD not governed by 30 month time limitation in 19(h)

Tony L. Curtis v. IWCC & Village of Lansing 2013 IL App (1 st) 120976 WC, filed 3 -11 -2013 • • • On appeal, Petitioner argues that the Commission erred in denying his request for additional TTD benefits for the interval of temporary disability that followed his causally-connected surgery. According to Petitioner , section 19(h) of the Act does not apply to TTD benefits. In light of the foregoing, we find that Petitioner’s petition is untimely under section 19(h). With an exception not relevant here, section 19(h) clearly provides that either party may petition Commission to reopen an agreement or award under the Act for compensation paid in installments for a period of only 30 months after the date of the Commission’s decision. Petitioner contends that the term “disability” as used in section 19(h) was intended to refer only to permanency… we engage in statutory construction. When section 19(h) is read as a whole, it is clear that the legislature did not intend to limit the scope of section 19(h) only to permanency benefits. Rather, the statute was meant to cover TTD benefits as well. Accordingly, as Petitioner’s position to the contrary finds no support in the statute, and we reject it. Petitioner filed his request for additional TTD benefits pursuant to section 8(a) of the Act. As the Commission correctly noted, however, section 8(a) governs medical expenses, not TTD benefits, and there is no provision in section 8(a) that provides for the relief Petitioner requests…For the reasons set forth above, we affirm the judgment of the circuit court of Cook County, which confirmed the decision of the Commission.

Sylvia Timms v. CTA 10 WC 020440 • DA 3 -18 -10 • 51 yo bus operator “struck and killed passenger” • Spoke with paramedics, CPD an manager saw that she was “shaken up” and was given “comp psych” • 4 -27 -10 “administratively separated” • 5 -28 -10 began treating with psychologist Dr. D. Kelley for “anxiety disorder” • 7 -120 -10 citing Pathfinder, unrebutted opinion of Dr. Kelley and credible testimony of Petitioner, Arbitrator finds “accident and awards TTD on 19(b) • 3 -11 -11 Commission affirms & adopts on 2 -1 vote; dissenter says Petitioner did not really know what happened • 12 -20 -11 Circuit Court confirms, Petitioner is credible

CTA v. IWCC 2013 IL App (1 st) 120253 WC • • • At issue is whether the Commission erred in finding that the claimant established a compensable psychological injury under the "mental-mental injury" theory that our supreme court announced in Pathfinder However, relying upon this court's decision in General Motors Parts Division 168 Ill. App. 3 d 678 (1988), the employer argues that a claimant may recover under Pathfinder only if she proves that a sudden, severe emotional shock caused her to suffer a psychic injury that was "immediately apparent. ”…We disagree. As a preliminary matter, we find General Motors inapposite. The case at bar involves a claim of psychological injuries stemming from a single, traumatic, work-related incident. Accordingly, it falls squarely within the ambit of Pathfinder General Motors, on the other hand, involved a claim of psychological injuries that appeared to have arisen gradually from a variety of factors Pathfinder does not compel the claimant to prove, in addition , that the psychological injury resulting from the emotional shock was "immediately apparent. ”Under Pathfinder, the emotional shock needs to be sudden not the ensuing psychological injury The Commission‘s finding that the claimant's delay in obtaining medical treatment was not a bar to recovery given her credible testimony and Dr. Kelley's unrebutted psychological opinion was not against the manifest weight of the evidence