Transcript WCLA MCLE 7-9-13

WCLA MCLE 10-8-13
• A Case at Every Level: Recent Supreme Court, Appellate Court, Circuit
Court, Commission & Arbitration Decisions
• Tuesday October 8, 2013
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Gruszeczka v. IWCC
2012 ILL App (2d) 101049WC
• 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
DeKalb 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 (McHenry)
• McHenry denies reconsideration of Motion to Dismiss and confirms
Commission’s denial of benefits
• Parties cross appeal to Appellate Court
Gruszeczka v. IWCC
2012 ILL App (2d) 101049WC
• 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.” … 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
2012 ILL App (2d) 101049WC
• 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”
• Petition for Leave to Appeal GRANTED by Supreme Court 9-26-12
Gruszeczka v. IWCC
2013 IL 11412, filed 8/01/2013
• Holding: Where a workers’ compensation claimant’s request for circuit court review of an
Industrial Commission decision was mailed within the 20days called for by statute, but
was not received by the clerk of circuit court until the twenty-fourth day, the statute’s
ambiguity was resolved by applying the “mailbox” rule to hold that the filing was timely
and that subject matter jurisdiction in the circuit court was not lacking; if this
construction is not what the legislature intended, it needs to clearly so set forth.
• The interpretation of a statute is a question of law that we review de novo.
• Unlike the appellate court, we do not believe that this question can be answered merely
by consulting a dictionary.
• Alliance argues that Kelly and Wilkins apply here because circuit court review of a
Commission decision is a “new action” with a “20-day statute of limitations.” We
disagree with this characterization and find that the Kelly/Wilkins test leads inescapably
to the conclusion that the date of mailing should control when a party seeks judicial
review of a Commission decision. Clearly, when a party seeks review of a Commission
decision in the circuit court, the party is not instituting an entirely new cause of action.
Tiburzi Chiropractic v. David Kline & Rovey Seed
2013 IL App (4th) 121113, filed 9/16/2013
• Petitioner settles case: “whereby third-party defendant agreed to satisfy,
pursuant to the fee schedule, all medical bills for medically causally related
treatment received on or before June 10, 2010.”
• In May 2011, plaintiff, Tiburzi Chiropractic, filed a small-claims complaint
against defendant, David Kline, to collect the balance of fees charged
following the performance of chiropractic services. In November 2012, the
trial court found in favor of plaintiff and ordered defendant to pay $2,155.
• In July 2012, the trial court entered an order on defendant's section 19(g)
petition. The court found third-party defendant had made full payment
pursuant to the terms of the settlement contract lump-sum petition and
order, including payment pursuant to the fee schedule and section 8 of the
Act of "all medical bills for medically causally related treatment, including,
but not limited to, any bills for medical treatment provided by [plaintiff]."
Tiburzi Chiropractic v. David Kline & Rovey Seed
2013 IL App (4th) 121113, filed 9/16/2013
• Pursuant to the Act, the employer must adjust the medical bills to conform to the fee schedule found in
section 8.2. 820 ILCS 305/8.2 (West 2010). "Except as provided under subsections (e-5), (e-10), (e-15), and
(e-20), a provider shall not bill or otherwise attempt to recover from the employee the difference between
the provider's charge and the amount paid by the employer or the insurer on a compensable injury." 820
ILCS 305/8.2(e) (West 2010).
• In the case sub judice, plaintiff relies on the exception in subsection (e-20) (820 ILCS 305/8.2(e-20) (West
2010)), which states as follows: "Upon a final award or judgment by an Arbitrator or the Commission, or a
settlement agreed to by the employer and the employee, a provider may resume any and all efforts to
collect payment from the employee for the services rendered to the employee and the employee shall be
responsible for payment of any outstanding bills…
• We agree with defendant that plaintiff's compensable services under the Act are not recoverable…Contrary
to plaintiff's argument, it did not treat defendant as a private-pay patient. Instead, plaintiff submitted its bill
to defendant's workers' compensation insurance carrier.
• Accordingly, the trial court erred in awarding plaintiff a monetary judgment in the amount of
$2,010.Although we find subsection (e-20) does not allow plaintiff to recover for compensable services in
excess of the fee schedule, we find it does allow plaintiff to recover for services not compensable…Here, the
workers‘ compensation insurer paid nothing for the 20 cold packs, each billed in the amount of $10. Thus,
plaintiff is entitled to judgment in the amount of $200, plus costs.
Julia Garcia v. Magid Glove
12 L 50560, Judge Robert Lopez Cepero, 9/23/2013
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The motion for a full 20% attorneys’ fee is hereby granted
No connection between Section 16a and Section 8(d)1
Set of prerequisite conditions not present in Section 8(d)1
Matter of law and statutory construction Section 16a does not apply to
8(d)1
• Section 16a: “However, except as hereinafter provided in this Section, in
death cases, total disability cases and partial disability cases, the amount of
an attorney's fees shall not exceed 20% of the sum which would be due
under this Act for 364 weeks of permanent total disability based upon the
employee's average gross weekly wage prior to the date of the accident…”
Lourdes Oliver v. Posen-Robbins School District
13 IWCC 0297, 12 WC 017743
• IWCC unanimously affirms and adopts decision of the Arbitrator, 3/19/2013
• Lourdes Oliver ("Petitioner") testified that on February 23, 2012, she was employed by the PosenRobbins School District # 143.5 ("Respondent") as a second grade teacher at Gordon Elementary
School. Petitioner testified that she had been working for the Respondent for about sixteen (16)
years.
• Petitioner testified that on the morning of February 23, 2012, she finished making copies in the
office and was walking from the north entrance of the school, down the hallway to pick up her
class from the gym. Petitioner further testified that she was carrying a book in her hands and
wearing red pants with flat, rubber-soled boots. Petitioner stated that Ms. Doris Sams was also
present in the hallway, leaning against the wall near classroom 19. Petitioner testified that the
floor in the hallway was grey with black stripes and while walking down the hallway, she noticed
something shiny on the floor; about 30 feet ahead of her, which she described as a liquid.
Petitioner testified that she did not notice any color to the liquid and did not see it again after she
initially saw it from 30 feet away. Petitioner testified that she attempted to walk around the
alleged spill when slipped and fell in the area where she saw the substance, between classrooms
18 and 19, falling on her right shoulder and knee, having pain in her neck. She testified that when
she slipped, she was laying on the liquid. She testified that she reported a spill on the floor to the
principal and others while laying on the floor after her fall.
Lourdes Oliver v. Posen-Robbins School District
13 IWCC 0297, 12 WC 017743
• Petitioner also testified that later that night she noticed that her knee was skinned and that she had a small
spot on her pants that smelled like coffee. She brought the pants to the arbitration hearing and a dime-sized
white spot was apparent on the right knee. Although Petitioner testified that her pants smelled like coffee,
she denied drinking coffee or noticing brown discoloration in the area of the hallway where she saw the
liquid. The Arbitrator takes judicial notice that the pants displayed by petitioner do not have any stains on
them except a dime sized mark on the right pant by the knee area.
• Ms. Sams testified that on the morning of February 23, 2012, she was acting as a hall monitor and witnessed
Petitioner's accident. Ms. Sams stated that she remembered the accident clearly. Ms Sams also testified that
she was not reading anything at the time of Petitioner's fall and that she was able to observe the hallway
from where she stood. Ms. Sams stated that the hallway was very clear and well lit and that she had been
looking at the area where Petitioner fell for about three to five (3-5) minutes before the accident as she was
approximately five (5) to ten (10) steps away from the spot and did not observe anything or any
discoloration on the light gray floor. Ms. Sams testified that the hallway was clear. Ms. Sams stated that she
was standing by the wall near classroom 19 when she directly saw Petitioner slip and fall, approximately ten
(10) feet from where she was standing. She testified that Petitioner just fell and that Petitioner did not make
mention of any substance on the floor during the fifteen to twenty (15-20) minutes that it took for the
ambulance to come. Ms. Sams further testified that she hurried to Petitioner's assistance and that there was
no liquid spilled on the floor.
Lourdes Oliver v. Posen-Robbins School District
13 IWCC 0297, 12 WC 017743
• It is generally accepted by Illinois courts that a fall originating from an unknown, neutral
source is "unexplained." Builder's Square, 339 Ill. App. 3d 1006, 1010 (2003). An
unexplained fall will not be compensable where the claimant fails to present factual
evidence at the arbitration hearing, upon which the Commission could draw a
reasonable inference that the employment conditions contributed to the fall. Illinois
courts have consistently rejected the positional risk doctrine, and, as such, a claimant
alleging an unexplained fall has the burden of proving a reasonable inference that the fall
arose out of the employment. Id. Illinois courts have made it clear that an inference
alone is not enough to establish the compensability of an unexplained fall. Rather, the
claimant must prove that the inference was reasonable…In Builders Square, an
employee's husband brought a workers' compensation claim after his wife fell at work
and died. The decedent was working for the Respondent in the lawn and garden
department, when she fell while opening boxes of merchandise. In his witness testimony,
the decedent's coworker and friend stated that he saw her straighten up, then stagger
two or three steps backward, collapsing on the floor. The Illinois Appellate Court
determined that the decedent's fall at work was not compensable because her husband
failed to offer reasonable inferences to explain the fall.
Lourdes Oliver v. Posen-Robbins School District
13 IWCC 0297, 12 WC 017743
• Similar to the decedent's spouse in Builder's Square, the Petitioner only offered conjecture as to what caused her to fall, failing to
offer evidence or information allowing the Arbitrator to form a reasonable inference to explain the accident. Petitioner's claim that
she slipped and fell due to a coffee spill is based solely upon the smell of coffee on her pants later that night and her assertion that
she noticed liquid on the floor from thirty (30) feet away. During her testimony, Petitioner admitted that she saw no brown
discoloration on a floor where she slipped, despite the light colored flooring. Further, Petitioner testified that she did not notice
any liquid around her when she was on the floor. She testified that she saw liquid on the floor from 30 feet away; and tried to
avoid it as she walked closer to it.
Ms. Doris Sams also testified that she had been watching the area of the hallway where the accident happened for approximately
three to five (3-5) minutes and remembered that the area was clear, with no defects on the ground or liquid spilled. The Arbitrator
finds the testimony of Ms. Sams to be credible.
The testimony of Ms. Sams parallels the testimony of the coworker in Builder's Square. The coworker was a friend of the decedent
and had no reason to have bias against her. Similarly, Ms. Sams testified that the Petitioner was well-respected at the school,
indicating that Ms. Sams had no bias or reason to testify in an untruthful manner as to the conditions surrounding the Petitioner's
fall. During her entirely testimony, Ms. Sams had no doubt that the area where Petitioner fell was clear and that there were no
defects on the floor contributing to the accident. Based upon the testimony of Doris Sams, it is unlikely that the accident occurred
in the way the claimant testified that it happened. Petitioner's testimony contradicts the testimony of Ms. Sams as Ms. Sams saw
nothing spilled on the floor and Petitioner also admitted that she did not notice any discoloration on the floor. Petitioner did not
allege that she slipped on coffee until the arbitration hearing, and she presented no evidence to link the coffee smell to the fall.
The Arbitrator finds that the Petitioner has not proven, by a preponderance of the evidence, that she sustained an accidental
injury arising out of and in the course of her employment.
Nicholas Duncan v. Federal Whalen Moving
12WC034355 (9-4-13; Erbacci)
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DA 6/16/2012
39 yo mover driver
Left knee arthroscopy & chondroplasty femoral condyle by Dr. Sumerville
(i) Dr. John Cherf; 1% LEI =1% WPI; “impairment does not equate to PPD;” PE grade modifier is
zero; did not consider SX report
(ii) “Arbitrator notes is medium to heavy work… more adversely affected…greater amount of PPD”
(iii) “Younger individual…PPD will be more extensive …live with PPD longer”
(iv) “Appears to be diminished…RTW with restrictions …difficulty working as a mover…presently
works spotting trucks”
(v) “Credibly testified…pain…corroborated…diagnosis…necessity of subsequent
surgery…precedent pursuant to Section 19(e)”
Award: 25% loss of use of the Left leg (9-4-13)
Status: Arbitration Decision Rendered
Steven Miller v. ConWay Freight
12WC041880 (7-17-13; Thompson-Smith)
• DA 9/14/2011
• 49 yo sales rep/driver
• Dr. Westin performs arthroscopic repair partially torn rotator cuff, acromioplasty, distal
clavicle resection
• (i) Dr. Westin “by request of the Respondent;” 7% UEI; 4% WPI; “QuickDash…physical
exam”
• (ii) “Judicial notice…medium to heavy work…PPPD will be larger than…lighter work”
• (iii) “Petitioner is 51…older individual…PPD may be more extensive …than younger
individual”
• (iv) No evidence that FEC is diminished: RTW in full duty capacity
• (v) “Surgery…pain noted…loss of range of motion…loss of strength”
• Award: 12% whole person (60 weeks=23.72% arm)
• Status: Respondent Review filed