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PPD May Be Awarded Without an AMA Report

June 2016

By Francis M. Brady

In a decision published on June 28, 2016 (Corn Belt Energy Corporation v. The Illinois Workers' Compensation Commission, et al.), the Illinois Appellate Court affirmed an award of 3% loss of the whole person even though the record lacked an AMA Rating. The employer had appealed, arguing that Section 8.1(b) of the Illinois Workers' Compensation Act requires the injured worker provide an AMA opinion. The Court declined to so obligate the injured worker finding that, in fact, neither the worker nor her employer must submit a report. It determined that "clearly, the plain language of Section 8.1(b) places no explicit requirement (regarding submission of an AMA Rating) on either party." The Court conceded that when an AMA report "is admitted into evidence, it must be considered by the Commission, along with the other identified factors, in determining the claimant's level of PPD." But, it reiterated that "...nothing in the plain language of the Act precludes a PPD award when no PPD impairment report is submitted by either party."

The Court's decision also addresses the issue of causal connection. The evidence at trial, consisting only of treating medical records and petitioner's testimony, was clear that his conditions pre-existed the work accident. He had undergone a significant amount of chiropractic care before the trauma, not completely dissimilar from what he underwent afterwards. The employer contended the Commission could not award PPD because the worker "failed to present any medical opinion evidence" affirmatively tying his condition to the work accident. The Appellate Court disagreed, indicating that petitioner's evidence was sufficient to show, on a circumstantial basis, that his back and neck conditions were different, and more significant, after the work trauma.

New Case Law: Rare IWCC Reversal on Slip/Fall Case

First Cash Financial Services v. IC

In a 4-1 opinion, the appellates reversed the arbitrator, Commission and circuit court on the issue of arising out of. The claimant slipped and fell, dislocating her elbow, while entering the bathroom at the end of her shift to retrieve a personal item (a lunch container.) She did not notice any defect or debris on the floor. Three co-workers testified that they did not notice any debris on the floor, although they could not recall the last time the bathroom had been cleaned prior to the accident. The case was found by the arbitrator to be compensable, and the Commission and circuit court affirmed without comment.

The appellate majority analyzed the three types of risks that occur in the workplace: employment-related risks (such as defective or debris-laden surfaces; or duties that increase the risk of injury), employee-related risks (such as idiopathic physical conditions in an employee that could cause one to fall), and neutral risks (not increased by any employment-related factors). The latter two are not generally compensable. The court held that the arbitrator improperly speculated that it was possible that the floor was dirty, and required the employer to prove that it was not:

New Case Law: Radosevich v. IC - Interest on Awards

This opinion is a long read, especially the convoluted procedural history, including a prior remand. The first part deals with an employer getting slammed with attorneys fees for not paying an arbitration award in full within 30 days, despite its claim that it was trying to negotiate a lump-sum settlement. The circuit court further found that this refusal to pay subjected the employer to additional attorneys fees under Section 19(g) (the provision for judicial enforcement of Commission awards.) The appellate court affirmed all of this. Next, the appellate court addressed the issue of interest.

The arbitration award consisted of TTD and PTD that accrued prior to arbitration, as well as future PTD, maintenance, and home healthcare to be paid in fixed monthly amounts after the arbitration. No review was taken to the Commission. The 19(g) proceedings were filed one month after the arbitration decision became final. The employer made partial payments of the award over the next six months, but never did pay any interest prior to the circuit courts judgment. The judgment order included Section 19(n) interest on the benefits that accrued prior to arbitration. This interest was calculated for the period between the arbitration decision and the entry of the court judgment. However, the court applied interest under the Code of Civil Procedure Section 2-1303 on the weekly/monthly benefits payable after arbitration but prior to the circuit court judgment, up until the date of actual payment. On appeal, the claimant argued that Section 2-1303 interest should apply to the entire award entered by the arbitrator beginning the date that the award became final. The respondent agreed with the circuit courts calculation.

The appellate court had to answer a few questions: Was section 19(n) interest chargeable to the benefits that were not payable until after the arbitration award? Past decisions of the court indicated this was not the case. However, the court now has stated:

Reform: An Up to the Minute Primer (Redux) Part II

December 2015

By Francis M. Brady

The following concludes the Firm's review of all "reform" measures currently under consideration in the Illinois General Assembly.[1]


In 2011, reimbursement of certain medical charges under the existing Fee Schedule was reduced 30%. Even with that reduction, Illinois was, according to the Oregon Workers' Compensation Premium Rate Ranking Summary, still the 7th costliest state concerning workers' compensation. The Senate Republicans added language to SB0994 effectuating limitations of an additional 30% relative to reimbursement to care providers. The cuts, however, are not across the board. They impact specific services as follows: ambulatory surgical treatment centers; anesthesia services; hospital inpatient services, both standard and trauma; hospital outpatient services; and, professional services. No reductions would occur to reimbursement of emergency room services; evaluation, management, or physical medicine services.

Nature and Extent

The business community charges that the reforms of 2011, including the implementation of AMA Standards regarding impairment, simply nibble "around the edges of our tremendous cost problem here in Illinois" (Business Insurance, March 1, 2015). To rectify this imbalance, the language of the Senate Republicans in Amendment 1, SB0994 mandates that the Commission consider independent medical examinations along with treating medical records and, as well, can consider AMA Guidelines as the sole determinant of disability (820 ILCS 305/8.1(b)). To further reduce nature and extent exposures, language proposed by Senate Republicans credits an employer for past whole man recoveries secured by petitioner.

Two Arbitrators Appointed

December 2015

By Mark F. Vizza

Mr. Paul Cellini and Mr. Gary Gayle have been appointed Arbitrators by Governor Bruce Rauner.

Mr. Cellini brings 20 years of experience in workers' compensation law, having practiced in both the public and private sectors. He most recently served as staff attorney with the Illinois Workers' Compensation Commission. Mr. Cellini is a graduate of the University of Illinois and The John Marshall Law School.

Mr. Gayle, too, has long ties to Illinois Workers' Compensation. He has 35 years of experience including service as Executive Director of the Illinois Workers' Compensation Commission. Mr. Gayle is a graduate of the University of Missouri and the Chicago Kent College of Law.

Arbitrator Gayle will be assigned to the Chicago area while Arbitrator Cellini will be assigned to one of the downstate areas. Both should begin handling cases January 1, 2016 when the Arbitrator reassignments take effect.

Challenging Opioid Prescriptions

December 2015

By Jeffrey R. Gibellina

In a December 18, 2015 report, the Centers for Disease Control and Prevention (the "Centers"), announced that "since 2000, the rate of deaths from drug overdoses has increased 137%, including a 200% increase of overdose deaths involving opioids." The report defined "opioids" to "include drugs such as morphine, oxycodone, hydrocodone...fentanyl, and tramadol." Indeed, there has been a "15-year increase in overdose deaths involving prescription opioid pain relievers..."

The need to "encourage (safe) prescribing of opioid pain relievers..." is urgent according to the Centers. While promoting safer practices is laudable, there is an immediate need, particularly in Illinois Workers' Compensation, for a method of attacking the scourge more directly. Business and insurance should be aware that the Illinois Workers' Compensation Act does offer a means by which an employer can contest prescription opioids. Under Section 19(d) of the Act and Section 7110.40 of the Rules Governing Practice Before the Commission, an employer can ask the Commission to decide whether a worker, who has been prescribed opioids, is engaged in injurious practices tending to imperil or retard her recovery or, alternatively, whether the worker who refuses a detoxification program is acting unreasonably.

An Illinois employer attempted to actualize Section 19(d) and Rule 7110.40 in the case of Colleen M. Oberlander v. University of Chicago (2014). Unfortunately, the Illinois Workers' Compensation Commission (hereafter the Commission) held that petitioner did not need to "de-escalate an opioid regimen." The Commission focused on medical evidence from petitioner's primary treater reflecting that should she undertake the de-escalation, she would suffer a "severe reaction," possibly resulting in a heart attack. Another expert engaged by petitioner, testified that he thought that opioid detoxification was merely experimental and, at best, would result in intolerable pain.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
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