WCLA MCLE 12-1-11

• • • • • 2011 Year End CLE Wrap Up & Review Thursday December 1, 2011 12:00 noon to 1:00 pm James R. Thompson Center Auditorium, Chicago, IL 1.0 Hour General MCLE Credit

2012 WCLA MCLE SCHEDULE

• • • • One Hour Lunch Time Programs: January 31, 2012; February 29, 2012; March 29, 2012; April 17, 2012; May 16, 2012; June 21, 2012; July 10, 2012; August 8, 2012; September 13, 20102; October 2, 2012; November 7, 2012; December 6, 2012 2012 WCLA Medical Seminar in September 2012 Appellate Court Luncheon?

Two 3 hour ETHICS & PROFESSIONALISM Bootcamps?

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Traveling Employees January 2011

Cox v. IWCC, 406 Ill.App.3d 541 (2010): Appellate Court reverses IWCC decision that Petitioner was not in the course of his employment; traveling employee in company vehicle had re-entered course of his employment even if personal trip to bank was deviation Johnson v. IWCC, No. 2-10-0148WC, 8-15-2011: Appellate Court says Will County sheriff was back “in the course of his employment” when he was responding to dispatch in his patrol car, after leaving county to perform personal errand (Commission had denied benefits 2-1 for personal deviation) DE NOVO!

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Medical Bills February 2011

Tower Automotive v. IWCC: 407 Ill.App.3d 427 (2011): “remand this matter to the Commission with directions to award the claimant the amount actually paid to the providers of medical services rendered to him as a result of his injuries of June 30, 2005” ELVIS RIDGEWAY v. TLC, INC., 11 IWCC 920: This award is not subject to the fee schedule based on the Appellate Court's recent holding in Tower Automotive v. IWCC …the Court held that the amendatory change to § 8(a) giving rise to the fee

schedule (i.e., P.A. 94-0277) applies to claims for accidents occurring on or after

February 1, 2006. Petitioner's accident occurred before February 1, 2006.

CAROLYN OCCHUIZZO v. JOLIET PUBLIC SCHOOL DISTRICT 86, 11 IWCC 0190: The Commission notes that a very recent decision by the Appellate Court supports

Respondent's conclusion that it should only be held liable for the amount paid by Medicare for Petitioner's treatment. Tower Automotive …The Commission notes that the Court limited this decision to workers' compensation cases arising from

accidents that occurred prior to the implementation of the fee schedule. Because the case at hand involves an accident that occurred on January 31, 2001, the Commission finds that Respondent is only required to pay the $ 38,511.62 paid by Medicare to Petitioner's medical providers.

Medical Bills February 2011

• Award for More than Negotiated Rate? No? DONNA J. THORPE v. PALOS COMMUNITY HOSPITAL, 11 IWCC 1041; Following Arbitrator’s finding AFFIRMED: “The charges for the second opinion appointment with Dr. Schlenker on June 5, 2008 (PX5), the charges for the surgery at Palos Community Hospital on July 7, 2008 and the charges from Palos Anesthesia Associates and Associated Cardiovascular were incurred and paid, at the negotiated rate, by the Petitioner's husband's group medical insurance (BC/BS of Illinois) in the amount of $ 10,250.57. No objections were made with regard to the amounts paid. The Arbitrator finds that the Petitioner has sustained her burden of proof that these medical charges constitute reasonable, necessary and causally related to the accident of August 21, 2007 and notes that the treatment dates on the account statement correspond to the medical records for treatment provided by Dr. Schlenker. Moreover, the hospital and related surgical charges correspond to the surgery that Dr. Chow performed. Accordingly, the Arbitrator concludes that

these amounts, paid at the negotiated rate and submitted at arbitration as Petitioner's Exhibit # 7, constitute reasonable and necessary medical treatment pursuant to Section 8(a) of the Act.”

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Arising Out Of March 2011

MWRD v. IWCC, 407 Ill. App. 3d 1010 (2011): “Under the "street risk" doctrine, where the evidence establishes that the claimant’s job requires that she be on the street to perform the duties of her employment, the risks of the street become one of risks of the employment, and an injury sustained while performing that duty has a causal relation to her employment. Potenzo… In such a circumstance, it is presumed that the claimant is exposed to risks of accidents in the street to a greater degree than if she had not been employed in such a capacity, and the claimant will be entitled to benefits under the Act.

STANISLAWA MIYNARCZTK v. SOPHIE OBROCHTA, 11 IWCC 0747: Potenzo cited by Commission; fall by traveling cleaning lady in her driveway returning to company vehicle after lunch break not compensable

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48 Hour Rule April 2011

Mulligan v. IWCC, 408 Ill.App.3d 205 (2011): Respondent’s evidence (Dr. Kornblatt records review & Dr. Hopkinson IME) barred as violating 48 hour rule of Section 12 because Respondent failed to turn over reports prior to “set for hearing” (bifurcated over 2 years) Sandra Lindsey v. American Liberty School Bus, 11 IWCC 0993: With respect to the issue of EVIDENCE, the Arbitrator concludes that Petitioner's objection to the second report of respondent's examining physician and any testimony related to that report must be upheld. Petitioner's attorney stated that he never received a copy of Dr. Troy's second report prior to the deposition. Respondent's attorney appeared for her partner at the last minute due to serious illness and could not

provide proof that the report had been tendered to Petitioner's attorney 48

hours prior to the deposition. The Arbitrator must therefore sustain Petitioner's objection pursuant to Section 12 of the Act as recently discussed in Mulligan…The Arbitrator notes that despite Petitioner's attorney's objection, he nevertheless questioned both Petitioner and Dr. Silver about the second examination. The Arbitrator finds it difficult to believe there could be any prejudice or surprise to Petitioner after reading Dr. Troy's initial examination report.

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City of Chicago/Baumgardner May 2011

City of Chicago v. IWCC, 409 Ill.App.3d 258 (2011): “The employer maintains that the Act prohibits two permanency awards for the same current condition of ill being even if that current condition of ill-being is the result of two separate industrial accidents. The employer presents a question of statutory interpretation, which is reviewed de novo…Based upon the foregoing, we find that the claimant is

not entitled to an award under both section 8(d)(1) and section 8(d)(2) for the

same condition of ill-being.” Baumgardner v. IWCC, 409 Ill.App.3d 274 (2011): Petitioner “contends that the Act does not preclude a scheduled PPD award where wage-differential benefits have been granted under section 8(d)(1) based on a second, aggravating injury to the same body part prior to the arbitration hearing on both claims…We note that the claimant asserts that, because the facts presented are undisputed, the Commission's finding with regard to permanency presents a question of law subject to de novo review. We disagree…We cannot say that the Commission's

denial of a scheduled PPD award under section 8(e)

against the manifest weight of the evidence.”

for the April 1996 injury is

HB 1698 June 2011

• • • • PA97-0018, effective 6-28-11, but know your applicability dates! (e.g. TPD gross 6-28-11? But AMA Guides 9-1-11) Know your new zones! (Cook County, Wheaton, Zones 1-5) But be aware that 19(b)’s will follow Arbitrator, not venue!

Check the web site regularly! www.iwcc.il.gov

Join the group email news service! Register at http://www.iwcc.il.gov/news.htm

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AMA Guides August & September 2011

Sec. 8.1b. 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.

AMA Guides August & September 2011

• • Impairment DOES NOT EQUAL disability! “The relationship between disability and impairment remains both complex and difficult, if not impossible, to predict.” AMA Guides, pg. 5.

“Although treating physicians may perform impairment ratings on their patients, it is recognized that these are not independent…” AMA Guides, pg. 23.

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AMA Guides August & September 2011

Is AMA Impairment Rating MANDATORY? Petitioner’s BOP?

What does “shall” mean? Mandatory or directory? Nelson v. IWCC, 194 Ill.App.3d 10 (1990); O’Brien v. White, 219 Ill.2d 86 (2006): mandatory-directory dichotomy concerns the consequences of failure to fulfill an obligation; legislature’s intention to make provision mandatory is judged primarily by whether there is an explicit, specific penalty attached to not fulfilling obligation Who should do AMA Impairment rating?

– – Respondent beware? You wanted it?

Petitioner beware? Better to fight with “(v) evidence of disability”?

Does Section 12 apply? 48 hour rule? Hearsay? Yes, to all?

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Medical Treatment October 2011

Workers' Compensation Preferred Provider Program Administrator List: Approved Companies: No Companies have been approved at

this time

http://insurance.illinois.gov/Consumer/approvedWCPPPList.pdf

PPP Notices: IWCC-Approved PPP Notification Form (required); General Notification Form (optional); Workplace Notice (required) SHANNA CHRISTENSEN v. THE ANIMAL HOSPITAL OF GURNEE, 11 IWCC 1023: Petitioner exceeds two choices; What is emergency treatment? “Does not count as Petitioner's second choice of provider. In so finding, we note that Petitioner was still in the acute phase of her work injury. She sought emergency treatment at Lake Forest Hospital only four days after her accident for "sharp pain" in her left elbow”; some treatment found to be “unreasonable”; Does this trigger NONPAYMENT of Sec. 8.2(e)? “excessive or unnecessary”; Applicability?

Utilization Review November 2011

• ROBERT URBAN v. DOMINICK‘S, 11 IWCC 1025 : We find the opinions of Dr. Nam and Dr. Malek to be more reliable than the opinions of Dr. Wehner or Dr. Casterjon's utilization reviews…We find Petitioner credibly testified that his shoulder symptoms improved "rather nicely and speedily" after he underwent trigger point injections and physical therapy…The treatment records from Dr. Nam and Dr. Malek similarly demonstrate that Petitioner had ongoing symptoms that did not respond to the brief course of treatment at Concentra, but resolved with injections and physical therapy as recommended by both Dr. Nam and Dr. Malek…We are similarly unpersuaded by Dr. Castrejon's utilization review because he did not review all of Petitioner's treatment records.