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Reform: An Up to the Minute Primer

June 2015

By Francis M. Brady

There has been a flurry of activity regarding Illinois Workers' Compensation Practice in this spring's legislative session. The Firm has been monitoring developments in both chambers. To date, action in the Senate has centered on reforms sought by the business community and supported by the Governor. The Senate measure denies benefits except where the work accident is more than 50% responsible for the employee's injury compared to other causes; limits the coverage afforded traveling employees; establishes credits for 8(d)(2) awards; and makes further cuts in the Fee Schedule.

Consideration in the House has followed a different path. There is legislation now pending focusing on the role of insurance carriers relative to rate setting and premium reduction. Other House measures, like those in the Senate, address causation and traveling employees though, unlike the Senate, they simply codify language from Appellate Court decisions which represents the current practice. House legislation does, however, create a right to contribution, though whether employers would gain any practical benefit from that right is questionable.

Ron Rascia Appointed Acting Chairman

December 2014

By Francis M. Brady

Governor Quinn has appointed Ronald A. Rascia Acting Chairman of the Illinois Workers' Compensation Commission, effective today. Chairman Rascia has been serving the Commission as General Counsel and Secretary.

Prior to joining the Commission in 2011, Chairman Rascia worked for nine years in the Office of the Illinois Attorney General as a supervising attorney in the General Law Bureau, defending State agencies in state and federal courts. As an attorney in the private sector, he served as General Counsel to Northwestern Golf Company and Platinum Financial Group. His tenure as Chairman was not specified beyond his "acting" status.

Former Chairman Michael Latz resigned on November 30th. Brady, Connolly & Masuda, P.C. joins the Commission in thanking Mr. Latz for his service and wishes him the best in his future endeavors.

BCM Presents to Arbitrators and Commissioners

July 2014

By John P. Connolly

At the invitation of Commissioner Michael Latz, I participated in the annual continuing education of the Illinois Workers' Compensation Commissioners, Arbitrators and Staff. The Chairman requested that I address the critical topic of the impact of workers' compensation costs in a depressed economy from an employer's perspective.

Detailed for the Commissioners and Arbitrators were the adverse exposures represented by wage differential and odd lot permanent total claims and their influence on businesses already here or thinking of coming to Illinois. Chairman Latz's invitation provided a welcome opportunity to apprise the decision makers of the outlook of the insurance industry and business community.

The Firm is proud of its efforts to educate stakeholders in the workers' compensation system. We welcome the opportunity to share our insights on areas of interests in recent case decisions. Topics that have recently been addressed by BCM lawyers include:

What's The Point In Settling

July 2014

For the workers' compensation respondent, settling carries three main goals: termination of past and present litigation, prevention of future litigation, and minimization of exposure. When a settlement agreement occurs, these goals are embodied in the wording of the settlement contract. Respondents must be aware of the advantages and pitfalls that can arise from including various terms or from excluding certain language in the contract. This article provides a brief overview of the pertinent case law, and important points to consider with each settlement.

Workers' compensation settlement contracts are governed by contract law, including the concepts of mutual intent and consideration. Hagene v. Derek Polling Constr., 388 Ill.App.3d 380, 902 N.E.2d 1269 (Ill.App., 5th Dist., 2009). The courts will therefore typically enforce unambiguous terms as written. Countryman v. Industrial Comm'n, 292 Ill.App.3d 738, 686 N.E.2d 61 (Ill.App. 2 Dist., 1997). However, whether a contract is ambiguous or clear is a question of law, and if the contract is ambiguous its interpretation is a question of fact subject to rules of contract construction and parol evidence. Id. One rule of construction commonly cited by the appellate courts is the tenet that the more specific provision controls over the more general provision. Mayhew v. Industrial Comm'n, 304 Ill.App.3d 557, 710 N.E.2d 909 (1999). As with general contract law, courts will also look toward the intent of the parties, which is discerned from the language used as well as the circumstances of the transaction. Hagene.

The courts have nonetheless expressed disfavor toward strictly interpreting contracts to find that a party has relinquished statutory rights. Hagene, supra; Gallagher v. Lenart, 226 Ill.2d 208, 874 N.E.2d 43 (2007). In most circumstances, an explicit statement waiving a specific right is required before the courts will imply such a right has been extinguished. Id. Therefore, if it is the intent of the agreement to terminate litigation of these issues, the contract drafter must carefully tailor the language to accomplish this.

Making Change Work: AMA Standards Part II

There is more we can do to promote the trend of decreasing permanency awards, specifically, at the end of Part I of this article. Even though the Commission has been somewhat critical of the impairment ratings to date, these critiques give respondents ways to improve and bolster this evidentiary tool. Remember, most, if not all, of the evidence presented for factors other than the impairment rating tends to come from petitioner’s own testimony. And, when there is no evidence from the respondent rebutting the testimony, the Arbitrator has no choice but to weigh the factor in petitioner’s favor. How do we combat this?

In order to strengthen defenses under the “new” approach, here are some tips for ensuring that at trial your hard work on the file will pay off and you will see those permanency awards decrease.

Impairment Rating Report

  • Decide whether an AMA rating is right for your case (is the petitioner at MMI, is it cost effective given the nature of the injury?). In all cases for date of injury after September 1, 2011 you have the right to obtain an AMA rating. Without a rating, no weight will be assessed for this factor;
  • Ensure that the medical provider is certified for the 6th Edition of the AMA Guidelines;
  • Ensure the doctor has secured a functional history intake form, QuickDASH, PDQ or other recommended questionnaire from petitioner and that the doctor provides it to you before deposition or trial. Not providing it can undermine the opinion and less weight may be given to the rating;
  • Scrutinize the report! Make sure the doctor used the diagnosis that would result in the highest impairment;
  • The medical records should be reviewed by the evaluator prior to the examination so that petitioner’s complaints can be verified;
  • Consider obtaining the rating when the petitioner has returned to full duty work so that any limitations due to work activity can be corroborated;
  • Assess whether you need the doctor’s deposition prior to trial. A deposition can allow the doctor to go through his analysis in a more detailed manner on the record and add credibility to his testimony where needed.

BCMs New Location

Brady, Connolly & Masuda, P.C. started the New Year in new offices. Having outgrown our address of the last decade, we're now practicing at 10 South LaSalle, Suite 900, 60603-1016. All other contact information, e mail, phone, fax and the like, remain the same.

Our new building blends the old and the new with a streamlined tower sitting atop a four story stone base. This sculpted granite base belonged to the Otis Building which occupied the site from 1909 until the mid-1980's construction of the structure we now occupy. The architects of the modern building, mindful the famous Chicago architectural firm of Holabird and Root designed its predecessor, saved the foundation.

We at Brady, Connolly & Masuda, P.C. are proud to have grown steadily over the years into space that simultaneously preserves rich tradition and addresses future challenges. We look forward to welcoming you to our new offices at any time you can stop by but, certainly, at our formal Open House on March 20, 2014. Invitations will be out shortly.

  • 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
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
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