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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.

Employer Beware: The Duty to Preserve Evidence in Illinois

When an employee is involved in a work-related accident, especially one involving a machine, tool or other mechanical device, employers can be confronted with difficult questions regarding preservation of evidence. Employers, and their insurers, should have a good understanding of the importance of preserving evidence and a plan in place to ensure proper action is taken when an accident happens.

An employer’s proper preservation of evidence serves at least two important purposes. First, it protects the employer from potential liability for spoliation of evidence. This includes third-party actions against the employer as well as a potential direct action by an employee against her employer. In Schusse v. Pace Suburban Bus, 334 Ill.App.3d 960, (1st Dist. 2002), the appellate court held that an employee’s claim for negligent spoliation against his employer was not barred by the exclusive remedy provision of the Illinois Workers’ Compensation Act. Second, preserving evidence protects the employer’s ability to pursue subrogation against other potential at-fault parties, such as product manufacturers, installers and vendors.

When does an employer need to preserve evidence? In order for a duty to preserve evidence to exist, the Illinois Supreme Court has set forth a two-prong test. First, there must be an agreement, contract, statute, special circumstance, or voluntary undertaking which gives rise to a duty to preserve evidence. Second, there must be a showing that a reasonable person in the employer’s position should have foreseen that the evidence was material to a potential civil action. If both prongs of the test are not satisfied, there is no duty to preserve evidence.

The Michelangelo Syndrome

Peter J. Stavropoulos recently preserved a "zero" award saving his client $83,097.50 in past temporary total disability; a future stream of TTD at $966.25 per week; $35,165.28 in medical expenses already incurred, and future medical cost including a two-level cervical fusion.

Petitioner argued that his job duties required him to look up while painting a ceiling for eight hours daily over 5 months. The Arbitrator found him not to be credible siding instead with the employer's witnesses Peter adduced. They testified concerning the variety of duties performed by petitioner and the amount of time he spent not paining at all. Moreover, pre-trial investigation Peter conducted with the help of the adjuster allowed him to demonstrate to the Arbitrator that petitioner was a convicted felon and served 14 years of a 37-year sentence for murder and arson. Based on this investigation, Peter showed the Arbitrator that petitioner had, in fact, lied on his employment application.

After finding against petitioner on the issue of accident, the Arbitrator also considered whether the neck condition in question was caused or aggravated by any work activity (ceiling painting or otherwise). He disregarded the opinions of petitioner's chiropractor, concluding his testimony revealed he did not understand petitioner's job duties, nor even had a firm diagnosis. The Arbitrator also discounted the testimony of petitioner's treating orthopedic surgeon, Dr. Lorenz, whose answers to Mr. Stavropoulos' cross-examination showed he misunderstood, completely, petitioner's job duties.

  • 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
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Normal, IL 61761
Phone: 309-862-4914
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St. Louis, MO 63102
Phone: 314-300-0527
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