27th Annual Claims Handling Seminar

Transcription

1 Heyl, Royster, Voelker & Allen 27th Annual Claims Handling Seminar Peoria Suite 600 Chase Building 124 S.W. Adams Street Peoria, IL Springfield Suite 575, PNC Bank Building 1 North Old State Capitol Plaza PO Box 1687 Springfield, IL Now is the Time! Urbana Suite E. Main Street PO Box 129 Urbana, IL Rockford 2nd Floor, PNC Bank Building 120 West State St. PO Box 1288 Rockford, IL Edwardsville Suite 100, Mark Twain Plaza III 105 West Vandalia Street PO Box 467 Edwardsville, IL Workers Compensation Thursday, May 17, 2012 Bloomington, Illinois Chicago Theater District Business Center 60 W. Randolph St. Suite 220 Chicago, IL Heyl, Royster, Voelker & Allen heylroyster.com

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3 May 17, 2012 IN RE: 27th Annual Claims Handling Seminar Dear Seminar Attendee: On behalf of the firm, I want to welcome you to our 27th Annual Claims Handling Seminar. Our attorneys have endeavored to prepare materials and presentations which will benefit you in your daily work, whether you are a claims professional, risk manager, corporate counsel or employer. Please be sure to fill out the database update and evaluation form which is with your materials. Your feedback regarding this seminar and your suggestions for future topics are very important to us. We also ask that you be sure to provide your address since we are now distributing via publications such as our Quarterly Review of Recent Decisions and Below the Red Line, our workers compensation newsletter, as well as others listed on the form. In order to receive Continuing Education verification, be sure to sign the attendance sheet at the registration table both before the session begins and immediately following the conclusion of our sessions this afternoon. Attendance verification certificates will be ed only to those who sign the attendance sheet both at the beginning and end of the seminar. Once again, we appreciate your taking the time to join us today, and thank you for your confidence in selecting us as your attorneys. HEYL, ROYSTER, VOELKER & ALLEN By: Gary D. Nelson Managing Partner gnelson@heylroyster.com

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5 Workers Compensation Agenda Now Is the Time! Thursday, May 17, :00-4:30 p.m. Bloomington, Illinois 1:00 p.m. Welcome & Introductions Craig Young, Peoria 1:05 p.m. Where Have We Been and Where Are We Going: A Political Perspective on the 2011 Amendments and What They Might Mean for Employers Brad Ingram, Peoria 1:15 p.m. Use of AMA Impairment Ratings: Seize the Moment to Reduce PPD Awards! Bruce Bonds, Urbana 1:35 p.m. Establishing Accident and Causal Connection Seize the Moment to Require Work Relatedness by a Preponderance of the Evidence Craig Young, Peoria 1:50 p.m. Limitations on Awards for Repetitive Trauma Claims: Is There Finally Light at the End of the Carpal Tunnel? Kevin Luther, Rockford/Chicago 2:10 p.m. Medical Billing and Treatment Under the 2011 Amendments: Either UR or UR Not! Toney Tomaso, Urbana 2:30 p.m. Break 2:50 p.m. What s Old Is New Again. Prosecuting Workers Compensation Fraud Under the 2011 Amendments William Blumthal, Supervisor, Illinois Workers Compensation Fraud Unit 3:15 p.m Amendments Wrap-Up: Seizing the Moment and the Momentum! Craig Young, Peoria 3:20 p.m. Symposium on Social Media and Workers Compensation Claims a. Kids Say the Darndest Things Effective Claims Investigation Using Social Media Stacie Hansen, Peoria b. Social Media Investigation: How Much Is Too Much? The Impact on Employees Privacy Rights and Pointers to Avoid Litigation Jana Brady, Rockford 3:50 p.m. An Appeal for Your Appeals (or, I Fought the Law and the Law Won) Brad Elward, Peoria 4:00 p.m. What Has the Appellate Court Done For or Against Us Lately? Case Law Update Joe Guyette, Urbana 4:15 p.m. Does Anybody Really Know What Time It Is? New Arbitrators, Venues and Zones: A View from the Trenches Moderated Panel Discussion 4:30 p.m. Cocktails & Hors d oeuvres

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7 Workers Compensation Contact Attorneys Heyl, Royster, Voelker & Allen Peoria Attorneys: Bradford B. Ingram - bingram@heylroyster.com Craig S. Young - cyoung@heylroyster.com James M. Voelker - jvoelker@heylroyster.com James J. Manning - jmanning@heylroyster.com Stacie K. Hansen - shansen@heylroyster.com Timothy D. Gronewold - tgronewold@heylroyster.com Dockets Covered: Bloomington Peoria Kewanee Springfield Attorneys: Gary L. Borah - gborah@heylroyster.com Daniel R. Simmons - dsimmons@heylroyster.com John O. Langfelder - jlangfelder@heylroyster.com Jeffrey G. Cox - jcox@heylroyster.com Dockets Covered: Quincy Springfield Urbana Attorneys: Bruce L. Bonds - bbonds@heylroyster.com John D. Flodstrom - jflodstrom@heylroyster.com Bradford J. Peterson - bpeterson@heylroyster.com Toney J. Tomaso - ttomaso@heylroyster.com Jay E. Znaniecki - jznaniecki@heylroyster.com Joseph K. Guyette - jguyette@heylroyster.com Dockets Covered: Herrin Joliet Mt. Vernon Urbana Appellate: Brad A. Elward - belward@heylroyster.com Dockets Covered: Statewide Rockford & Chicago Attorneys: Kevin J. Luther - kluther@heylroyster.com Brad A. Antonacci - bantonacci@heylroyster.com Thomas P. Crowley - tcrowley@heylroyster.com Lynsey A. Welch - lwelch@heylroyster.com Dana J. Hughes - dhughes@heylroyster.com Dockets Covered: Chicago Geneva Ottawa Rockford Waukegan Wheaton Woodstock Kewanee Edwardsville Attorneys: Toney J. Tomaso - ttomaso@heylroyster.com James A. Telthorst - jtelthorst@heylroyster.com Dockets Covered: Collinsville State of Missouri Attorney: James A.Telthorst - jtelthorst@heylroyster.com Peoria Springfield Urbana Rockford Edwardsville Chicago Suite SW Adams St. Peoria, IL Suite N. Old State Capitol Plaza PO Box 1687 Springfield, IL E. Main St. Suite 300 PO Box 129 Urbana, IL Second Floor 120 W. State St. PO Box 1288 Rockford, IL Mark Twain Plaza III Suite W. Vandalia St. PO Box 467 Edwardsville, IL Theater District Business Center 60 W. Randolph St. Suite 220 Chicago, IL

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9 WORKERS COMPENSATION NOW IS THE TIME! Welcome & Introductions... A-1 Where Have We Been and Where Are We Going: A Political Perspective on the 2011 Amendments and What They Might Mean for Employers... B-1 Use of AMA Impairment Ratings: Seize the Moment to Reduce PPD Awards!... C-1 Establishing Accident and Causal Connection Seize the Moment to Require Work Relatedness by a Preponderance of the Evidence... D-1 Limitations on Awards for Repetitive Trauma Claims: Is There Finally Light at the End of the Carpal Tunnel?... E-1 Medical Billing and Treatment Under the 2011 Amendments: Either UR or UR Not!... F-1 What s Old Is New Again. Prosecuting Workers Compensation Fraud Under the 2011 Amendments... G Amendments Wrap-Up: Seizing the Moment and the Momentum!... H-1 Kids Say the Darndest Things Effective Claims Investigation Using Social Media... I-1 Social Media Investigation: How Much Is Too Much? The Impact on Employees Privacy Rights and Pointers to Avoid Litigation... J-1 An Appeal for Your Appeals (or, I Fought the Law and the Law Won)... K-1 What Has the Appellate Court Done For or Against Us Lately? Case Law Update... L-1 Does Anybody Really Know What Time It Is? New Arbitrators, Venues and Zones: A View from the Trenches... M-1 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted Heyl, Royster, Voelker & Allen

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11 WELCOME AND INTRODUCTIONS Presented by: Craig S. Young Peoria, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen A-1

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13 Craig S. Young - Partner Craig is Chair of the firm's workers' compensation practice group. He began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in He has spent his entire career with Heyl Royster and became a partner in He is recognized as a leading workers' compensation defense lawyer in the State of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. Craig has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves as Chair of the Workers' Compensation Committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organizations and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Public Speaking Workers Compensation Reform in Illinois Presented in numerous locations (2012) Elements of a Winning Workers Compensation Program Downstate Illinois Occupational Safety & Health Day (2010) Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers Compensation Risk Control Workshop (2010) Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues Lorman Education Services (2008) The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement Lorman Education Services (2008) Medicare Set-Aside Agreements-The Rest of the Story Defense Research Institute (2007) Resolving (or Alleviating) the Chronic Pain Case Heyl, Royster, Voelker & Allen (2007) Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Peoria County Bar Association 2008 Distinguished Community Service Award Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Board Member and Secretary-Treasurer) Defense Research Institute (Workers' Compensation Committee - Chair) Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude), Bradley University, 1982 A-2 Learn more about our speakers at

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15 WHERE HAVE WE BEEN AND WHERE ARE WE GOING: A POLITICAL PERSPECTIVE ON THE 2011 AMENDMENTS AND WHAT THEY MIGHT MEAN FOR EMPLOYERS Presented by: Bradford B. Ingram bingram@heylroyster.com Peoria, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen B-1

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17 Bradford B. Ingram - Partner Brad has spent his entire legal career with Heyl Royster, beginning in 1980 in the Peoria office. Born in Pekin, Illinois, He became a partner in the firm in His defense practice has included a wide variety of civil litigation matters. He is the partner in charge of the firm's Employment Law Practice Group. He also manages the defense of workers' compensation cases and civil rights and municipal claims in the Peoria office. Brad has handled a full range of employment law cases on behalf of employers in state and federal courts and before administrative agencies. These cases range from claims alleging discrimination to related tort claims such as defamation, intentional infliction of emotional distress, and wrongful termination. He has also handled breach of employment contract cases. He serves as counsel to the Eastern Illinois University Board of Trustees, where he advises the Board on a wide variety of legal issues confronting the University. He is a member of the National Association of College and University Attorneys. Brad has been active in legal professional organizations in the areas of workers' compensation and employment law. He is chair of the employment law committee of the International Association of Defense Counsel. Brad also serves on the Board of Governors of the College of Workers' Compensation Lawyers. He is a frequent speaker to legal and industry groups on topics involving employment, civil rights, and workers' compensation law. He also serves as a facilitative mediator having completed the Northwestern University Mediation Skills Training Program and is a member of several conflict resolution and mediation organizations. Publications Co-author, "Rule 41(a) Voluntary Dismissal in Federal Court Takes Effect Immediately Upon Filing, Not When Docketed," Illinois Defense Counsel Quarterly (2008) "Seventh Circuit Holds 42 U.S.C. Section 1981 Applies to Claims of Retaliatory Discharge," Illinois Defense Counsel Quarterly (2007) "Privity of Contract Required to State a Valid Claim Under Section 42 U.S.C. Section 1981," Illinois Defense Counsel Quarterly (2006) Public Speaking Defending Governmental Entities in Section 1983 Claims IDC Fall Conference, Chicago, IL 2009 Whistle Blower Protection in Illinois Peoria County Bar Association 2008 Harassment Awareness Training Illinois State Bar Association, Bloomington, Illinois 2007 Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Facilitative Mediator Completion of Northwestern University's Mediation Skills Training Curriculum, 2011 Professional Associations American Bar Association (Past Chair Workers' Compensation Law Committee) International Association of Defense Counsel (Chair Employment Law Section) National Association of College and University Attorneys College of Workers' Compensation Lawyers (Board of Governors) Illinois State Bar Association (Member, Alternative Dispute Resolution Section Council) Peoria County Bar Association The Association for Conflict Resolution Chicago Chapter Court Admissions State Courts of Illinois United States District Court, Central and Northern Districts of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, Drake University Law School, 1980 Bachelor of Arts-Political Science, Drake University, 1976 B-2 Learn more about our speakers at

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19 USE OF AMA IMPAIRMENT RATINGS: SEIZE THE MOMENT TO REDUCE PPD AWARDS! Presented and Prepared by: Bruce L. Bonds Urbana, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen C-1

20 USE OF AMA IMPAIRMENT RATINGS: SEIZE THE MOMENT TO REDUCE PPD AWARDS! I. EVALUATING THE PERMANENT PARTIAL DISABILITY UNDER THE 2011 AMENDMENTS TO THE ILLINOIS WORKERS COMPENSATION ACT... C-3 A. What Is the Difference Between Disability and Impairment?... C-4 B. Why Were the AMA Guides Included In the 2011 Amendments?... C-5 C. Who Can Prepare an AMA Rating Report?... C-5 D. Can a Treating Physician Perform an AMA Rating?... C-5 E. Can/Should the Workers Compensation Insurance Carrier or Plaintiff s Attorney Request an AMA Rating From the Treating Physician (Where They Are Qualified to Render One)?... C-6 F. Admissibility of AMA Ratings... C-6 G. Can a Physician Performing an IME Pursuant to Section 12 of the WC Act Provide an AMA Rating?... C-7 H. How Much Does an AMA Rating Cost?... C-7 I. When Is It Appropriate to Obtain an AMA Rating?... C-7 J. Can AMA Guides Be Used to Establish Work Restrictions?... C-7 II. HOW ARE AMA IMPAIRMENT RATINGS DETERMINED?... C-8 A. Diagnosis:... C-8 B. Modifiers:... C-8 C. What Are Typical AMA Ratings for Common Workers Compensation Injuries?... C-9 D. Conversions... C-9 E. Anomalies Between Illinois Workers Compensation Law and the AMA Guides?... C-10 III. IS SUBMISSION OF AN IMPAIRMENT RATING INTO EVIDENCE REQUIRED BEFORE AN ARBITRATOR CAN AWARD PPD BENEFITS?... C-10 A. Statutory Requirement... C-10 B. IWCC Interpretations (or It Depends on the Definition of What Is Is!)... C-11 C. Practical Considerations and Petitioners Anticipated Strategies... C-11 IV. LET S CREATE THE NEW Q-DEX: HOW TO SEIZE THE MOMENT TO REDUCE PPD AWARDS!... C-12 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. C-2

21 USE OF AMA IMPAIRMENT RATINGS: SEIZE THE MOMENT TO REDUCE PPD AWARDS! I. EVALUATING THE PERMANENT PARTIAL DISABILITY UNDER THE 2011 AMENDMENTS TO THE ILLINOIS WORKERS COMPENSATION ACT The 2011 amendments changed the criteria for evaluating permanent partial disability for injuries that occur on or after September 1, Pursuant to 820 ILCS 305/8.1(b), permanent partial disability for accidental injuries that occurred on or after that date 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) (ii) (iii) (iv) (v) the reported level of impairment pursuant to subsection (a) (e.g.; the AMA rating) the occupation of the injured employee the age of the employee at the time of the injury the employee s future earning capacity 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. 820 ILCS 305/8.1b C-3

22 A. What Is the Difference Between Disability and Impairment? It is important to differentiate between the concepts of disability and impairment. The AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition (the second printing of which is the most recent edition) indicates that: 1. Impairment is a significant deviation, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease. 2. Disability has been defined as activity limitations and/or participation restrictions in an individual with a health condition, disorder, or disease. 3. Impairment rating has been defined as a consensus-derived percentage estimate of loss of activity reflecting severity for a given health condition, and the degree of associated limitations in terms of activities of daily living ( ADL s ). 4. ADL s Basic self-care activities performed in one s personal life such as feeding, bathing, hygiene and dressing. Impairment and disability as used in the 2011 amendments are separate concepts. The AMA impairment rating is a component of the PPD percentage loss of use assessment, but there is not an equal sign between the impairment rating and PPD. Example: Both a lawyer and a pianist sustain an amputation of the non-dominant little finger. Both have the same impairment under the AMA Guides: 100% of the digit, 10% of the hand, 9% of the upper extremity or 5% of the whole person. The lawyer has no disability. The pianist is unable to perform his/her occupation and is therefore totally disabled from his occupation, although fully capable of many other jobs. The AMA Guides Sixth Edition clearly indicates that disability (or PPD) is a determination made by an administrative law judge and may or may not have a relationship to an impairment. All editions of the AMA Guides state that an impairment rating is not equal to a disability rating and is not intended to be a measure of disability since disability has to do with limitations or restrictions in job functions rather than the actual anatomic limitation. Nonetheless the fact that an AMA impairment rating will usually be significantly lower than the customary PPD award for the same injury should, if properly presented by knowledgeable counsel, reduce PPD awards going forward. All players in the WC system, including the Chairman of the IWCC and the most rabid plaintiffs attorneys, acknowledge this and anticipate lower PPD awards. C-4

23 B. Why Were the AMA Guides Included In the 2011 Amendments? 1. To provide greater uniformity in PPD awards. 2. To reduce the value of awards as AMA ratings are typically much lower than the typical PPD award for the same injury. C. Who Can Prepare an AMA Rating Report? 1. Section 8.1(b) of the Act requires that the report be prepared by a physician licensed to practice medicine in all of its branches. Thus, in Illinois, non-physicians such as chiropractors are not permitted to provide impairment ratings. The Act does not, however, require that the physician be certified to perform an AMA rating. Note that the AMA Guidelines themselves do permit impairment evaluations from medical doctors who are qualified in allopathic or osteopathic medicine or chiropractic medicine. The Guides also permit non-physician evaluators to analyze an impairment evaluation to determine if it was performed in accordance with the Guides. This will not be the case in Illinois pursuant to the 2011 amendments. 2. Presumably an impairment rating by a certified physician will carry more weight than one by a non-certified individual, although the certification is not required by either the AMA Guides or the Illinois statute. A physician can obtain certification by attending a two-day class which costs between $800 - $1,000. D. Can a Treating Physician Perform an AMA Rating? 1. An AMA impairment rating is customarily provided by treating physicians in other jurisdictions, including our nearby neighbor Indiana where the treating physician who is chosen by the employer may use AMA Guidelines to determine the injured worker s permanency. 2. The Guides themselves indicate that treating doctors should not be doing AMA impairment ratings as they are not independent, and therefore, their determinations may be subject to greater scrutiny, because they are considered biased in favor of the patient. The AMA Guides emphasize that the physician s role in performing an impairment evaluation is to provide an independent unbiased assessment of the individual s medical condition, including its effect on function and of limitations to the performance of Activities of Daily Living. The Guides explicit acknowledgment of the bias of treating physicians in favor of their patients brings a refreshing dose of common sense to a workers compensation system which has traditionally accorded greater weight to medical opinions expressed by an injured employee s treating physician, including issues of causal connection, work restrictions and the need for medical treatment. Ample case law, including International Vermiculite v. The Industrial Comm n, 77 Ill. 2d 1, 394 N.E.2d 1166, 31 Ill. Dec. 789 (1979), have articulated this conclusion. Examining physicians have often been considered hired guns, expressing opinions they were retained to C-5

24 give by the insurance carrier while the obvious financial gain the treating physician stands to reap from causally connecting the injury to the work incident (thus guaranteeing payment by workers compensation carrier), and recommending various modalities of treatment (for which the treating physician expects to be paid at a rate higher than health insurance or Medicare) have been ignored. E. Can/Should the Workers Compensation Insurance Carrier or Plaintiff s Attorney Request an AMA Rating From the Treating Physician (Where They Are Qualified to Render One)? 1. Respondent/WC Carrier: Not without prior written approval from the petitioner or his/her attorney. If a treating physician chooses to provide an AMA rating, he/she may do so but the respondent s attorney or insurance carrier cannot contact the petitioner s treating physician to request an impairment rating. To do so would be a violation of the physicianpatient privilege which has been applied to workers compensation cases in the case of Hydraulics, Inc. v. The Industrial Comm n, 329 Ill. App. 3d 166, 768 N.E.2d 760, 263 Ill. Dec. 679 (2d Dist. 2002). 2. Petitioners Attorney: They can request a rating from the treating physician (if the physician is qualified to perform one), but it is unclear whether the petitioner s attorney will routinely do so. If the petitioner s attorney does request a rating from the treating physician, practically speaking, who pays for it? The Act does not assign responsibility for paying for the rating and clearly the impairment rating does nothing to cure or relieve from the effects of the accidental injury which would trigger the respondent s responsibility to pay under section 8(a). If a petitioner needs to pay for the rating or obtain an IME to provide a rating, that might make smaller cases not worth pursuing. 3. Petitioners Strategies: Some petitioners attorneys advise that they will: (1) never request an AMA rating from a treating physician; (2) always object to any request by the respondent for an AMA rating by the treating physician; (3) seek sanctions under Petrillo and Hydraulics for any attempt by respondent to request an AMA rating from a treating physician without petitioner s agreement; and (4) object to any AMA rating provided by a physician retained for that purpose by the respondent as a means of increasing the costs of the respondent which would include both the cost of obtaining the report and the cost of a subsequent deposition; and (5) they will never fight an AMA rating with their own rating but will emphasize evidence of disability corroborated by medical records. F. Admissibility of AMA Ratings While an AMA rating is provided for by statute, there is no provision for the automatic admissibility of these ratings. Thus, any report containing an AMA rating would be considered hearsay and almost certainly would not be considered a medical record under section 16 of the Act which governs the automatic admissibility of certain treatment records. Thus, the deposition of the physician providing the AMA rating will likely be required. It seems equally C-6

25 likely that the petitioner s counsel will not agree to phone depositions and thus, these individuals will need to be deposed in person which will dictate the use of physicians for ratings in or near the state of Illinois. G. Can a Physician Performing an IME Pursuant to Section 12 of the WC Act Provide an AMA Rating? An IME physician can provide an impairment rating. Where a rating is performed by an IME physician or any other physician retained for that purpose, it is important that they be provided with the requirements of the statute and specifically address not only the AMA rating but the other factors specified, including 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. H. How Much Does an AMA Rating Cost? This number will vary from physician to physician but based on the seminars I have attended, the range which I have heard is that the AMA rating report will cost between $300 and $900 and a deposition between $1,000 and $1,500 for the doctor s testimony, if required. I. When Is It Appropriate to Obtain an AMA Rating? An AMA rating is appropriate once the patient reaches maximum medical improvement. This has been defined by the AMA Guides as a status where patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change. The Guides, does not permit the rating of future impairment. Robert D. Rondinelli, Guides to the Evaluation of Permanent Impairment 26 (2008). This is similar to the case law definition of maximum medical improvement in Illinois which is defined as the time at which the injured worker s injuries stabilizes or the injured worker has recovered as far as the permanent character of the injury will permit. Mobil Oil Corp. v. The Industrial Comm n, 309 Ill. App. 3d 616, 722 N.E.2d 703, 242 Ill. Dec. 919 (3d Dist. 2000). Contrary to common belief, an injured worker can receive medical treatment after a physician has determined that maximum medical improvement has been reached but that is not typical. J. Can AMA Guides Be Used to Establish Work Restrictions? No. The Guides indicate that they are not intended to be used for direct estimates of work participation restrictions. Impairment percentages derived according to the Guides criteria do not directly measure work participation restrictions. C-7

26 II. HOW ARE AMA IMPAIRMENT RATINGS DETERMINED? A. Diagnosis: 1. The Sixth Edition of the AMA Guides bases ratings initially on a diagnosis or what is known as a diagnosis based impairment or DBI. The impairment class is determined by the diagnosis as the key factor and then adjusted by other non-key factors referred to as modifiers. 2. Do not stack diagnosis to the same body part; the AMA rating is based one per region. Subsequent to the diagnosis, determination must be made as to whether the condition at MMI is no problem, a mild problem, a moderate problem, a severe problem, or a complete problem. These categories are assigned a number from 0 to 4. Most conditions at the time of maximum medical improvement are categorized as mild which the AMA Guides defines as symptoms with strenuous activity; no symptoms with normal activity in a completely independent person. rating. 3. Disputes over the proper diagnosis may significantly impact the AMA impairment B. Modifiers: Once a diagnosis has been made, the rating is adjusted by certain modifiers as follows: 1. Functional history: The functional history is based on subjective reports attributable to impairment. This can be determined by an oral history given by the injured worker or through the use of forms provided in the AMA Guides. a. The evaluating physician may use forms/questionnaires provided in the AMA Guides to establish the functional history. i. Quick DASH for upper extremity ii. Lower Limb Questionnaire iii. Pain Disability Questionnaire for spine b. Subjective complaints that are not clinically verifiable are generally not ratable under the Guides. 2. Physical exam: Greater weight is given to objective findings. The factors to be evaluated include, but are not limited to, stability, alignment, range of motion, muscle atrophy and deformity. 3. Clinical studies or objective test results. C-8

27 C. What Are Typical AMA Ratings for Common Workers Compensation Injuries? Spine Rating Typical Case Examples (WPI%) Non-specific cervical (neck) pain Cervical radiculopathy with fusion (resolved radiculopathy) Lumbar radiculopathy (single level, persistent) Lumbar pain with single level fusion (no radiculopathy) Lumbar pain with single-level fusion (with persistent single level radiculopathy) Lumbar pain with multi-level fusion (no radiculopathy) Lumbar radiculopathy with fusion (persistent single level radiculopathy) Sixth 1% - 3% WPI 4% - 8% WPI 10% - 14% WPI 5% - 9% WPI 10% - 14% WPI 5% - 9% WPI 10% - 14% WPI Extremity Rating Typical Case Examples UEI Arm, LEI Leg (To convert UEI to Hand Divide by 0.9) Digit Amputation Index at DIP joint Wrist Fracture residual symptoms and objective findings and/or functional loss with normal motion Wrist Fracture lack of 20 degrees flexion and of 20 degrees extension Lateral Epicondylitis residual symptoms without consistent objective findings (without surgery) Impingement Syndrome residual loss, functional with normal motion Carpal Tunnel Syndrome confirmed, s/p release, symptoms and no objective findings Partial Medial Meniscectomy symptoms, normal exam Cruciate Ligament Laxity moderate laxity (at MMI) Knee Arthritis moderate, 2 mm cartilage interval s/p Total Knee Replacement fair result Sixth 45% Digit 1% - 5% UEI 6% UEI 0% - 2% UEI 0% - 2% UEI 2% - 5% Hand 1% - 3% LEI 14% - 18% LEI 16% - 24% LEI 31% - 43% LEI D. Conversions 1. An injury to a thumb is 40% of an impairment rating to a hand, while an index-middle finger is 20% loss of use of a hand impairment, and a ring-little finger is 10% of a hand impairment. C-9

28 2. A hand impairment is determined by multiplying 0.9 times the upper extremity rating. 3. An upper extremity rating can be multiplied by 0.6 to obtain a whole person impairment rating. 4. A lower extremity rating can be multiplied by 0.4 to obtain a whole person impairment rating. E. Anomalies Between Illinois Workers Compensation Law and the AMA Guides? extremity). 1. The Guides treat a wrist fracture as an injury to the forearm (upper Illinois law treats an injury to the wrist as involving the hand. 2. The Guides treat a rotator cuff injury as an injury to the shoulder and assign of loss of use on the upper extremity. Illinois law may now treat shoulder injuries as a person as a whole. extremity. 3. The Guides treat carpal tunnel syndrome as an injury to the upper Illinois law treats it as an injury to the hand. 4. Successful surgery significantly reduces impairment under AMA Guides (the problem has been resolved). In Illinois, surgery or any invasive procedure significantly increases a PPD award even if the medical problem/injury is completely cured. III. IS SUBMISSION OF AN IMPAIRMENT RATING INTO EVIDENCE REQUIRED BEFORE AN ARBITRATOR CAN AWARD PPD BENEFITS? A. Statutory Requirement The plain language of section 8.1(b) mandates that PPD awards be established at least in part using impairment ratings. Specifically it states: Permanent partial disability shall be established using the following criteria... C-10

29 In determining the level of permanent partial disability, the Commission shall base its determination on the following factors. In determining the level of disability, the relevance in weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order. The word shall is defined by Meriam Webster s Collegiate Dictionary Tenth Edition as meaning will have to, must, and is used in laws, regulations or directives to express what is mandatory. Such as it shall be unlawful to carry firearms. B. IWCC Interpretations (or It Depends on the Definition of What Is Is!) Notwithstanding what appears to be an unambiguous statutory requirement that the Commission consider an AMA rating in any permanency award (as well as the common dictionary definition of the word shall ), the Commission voted unanimously to provide the following recommendations to the arbitrators regarding impairment ratings: An impairment report is not required to be submitted by the parties with a settlement contract. If an impairment rating is not entered into evidence, the arbitrator is not precluded from entering a finding of disability. C. Practical Considerations and Petitioners Anticipated Strategies 1. The practical effect of the Commission s conclusion will embolden many petitioners attorneys to object to the introduction of AMA ratings into evidence in hopes that the cost of obtaining the rating and securing its admission into evidence via evidence deposition (subsequent to a hearsay objection) will drive the cost of obtaining the AMA ratings up to a level that many carriers will not wish to incur in routine cases. Nonetheless the burden of proving all of the elements of a workers compensation claim remains on the injured worker and those elements must be proven by a preponderance of the evidence. Martin v. Industrial Comm n, 91 Ill. 2d 288, 437 N.E.2d 650 (1982). A petitioner who fails to submit an AMA rating into evidence runs the risk of a court determination that they have failed to meet this burden of proof, and thus, has not established any entitlement to PPD benefits. 2. As the directive that shall does not mean shall came from an unanimous Commission, it is likely that a case where permanent partial disability is awarded without consideration of an AMA rating would need to go to the circuit or appellate court in order to obtain a legal ruling on the appropriate compliance with statutory requirements. C-11

30 3. Petitioners are well aware of the fact that a typical AMA rating is dramatically lower than the typical permanent partial disability award and should be expected to exert a significant amount of energy in diluting, if not eliminating, their impact. 4. Absent an AMA award, the Commission, as noted by the Chairman in a recent speech, will decide cases based on the evidence that is before them, in light of the other four factors which include the occupation of the injured worker, the worker s age at the time of the accident, the injured worker s future earnings capacity, and the evidence of disability corroborated by the medical records of the treating physician. Practically speaking, there are only three rather than four of these factors to be considered, as in most instances where there is a significant impact on a petitioner s future earnings capacity, a wage differential award under section 8(d)(1) would be sought rather than a PPD award. The impact of the occupation and age of the injured worker on a PPD award is not entirely clear. Presumably the petitioner s attorney will argue that a young worker with a significant injury and a heavy job with many years left to perform should be entitled to a higher award, perhaps than an older worker with a similar injury, although this is by no means clear. 5. The factor which all petitioners counsel will be using whether an AMA rating is in evidence or not will be the evidence of disability corroborated by the medical records of the treating physician. a. Petitioners intend to satisfy this element via petitioners testimony at arbitration of what they notice about themselves at the time of arbitration that did not exist prior to that time and via introduction into evidence of the treating medical records. b. Whether or not similar subjective complaints contained in the records constitutes corroboration is anyone s guess. c. The reality is that in most instances after an individual has reached maximum medical improvement and is released to return to work at full duty with no restrictions, the medical records do not and have not historically corroborated permanent partial disability in any significant sense. That fact has not stopped the Commission from significant awards for relatively minor injuries (e.g.; 20% to 25% loss of use of a hand for an operated carpal tunnel with a full duty return to work). IV. LET S CREATE THE NEW Q-DEX: HOW TO SEIZE THE MOMENT TO REDUCE PPD AWARDS! A. Don t be distracted by the petitioner s claim that nothing has changed! 1. The petitioner s bar wants to pretend that AMA Guides do not exist and are not a statutory requirement. C-12

31 2. The petitioner s bar will argue that at most, AMA Guides are one element of five, not the primary element and consideration of them according to the Commission guidance is not required. 3. If an AMA rating is not entered into evidence, the petitioner s bar will argue that the determination of PPD awards is the same as it has always been; business as usual. 4. Even if AMA Guides are entered into evidence, the petitioner s bar will also argue that the key element in determination of PPD is the fifth element, to wit, evidence of disability corroborated by the medical records. B. Insist that shall means shall, and that an AMA rating is required in all cases. Petitioner s failure to submit an AMA rating into evidence represents a failure of meeting the burden of proof that the injured worker incurred a compensable injury and therefore no PPD award can be entered. Be willing to appeal if necessary! The AMA ratings were put into the statute for a reason and that reason was to decrease PPD awards. C. Argue that the petitioner s age and occupation are irrelevant where the petitioner is at MMI and has returned to full duty work with no restrictions, and where no further treatment is necessary. Petitioner s evidence of disability as corroborated by treating medical records is in the typical case, neither evidence of disability or corroborated by medical records. It is a legal fiction. Wage loss is also irrelevant; if there was a significant reduction in earnings petitioner would elect a wage differential under 8(d)(1). Absent concrete evidence of disability there is no basis for an award in excess of the AMA rating. D. Obtain an AMA rating from a physician qualified to perform one, preferably one who is certified (although that is not required). This is especially true now as we try to create a new Q-Dex, of dramatically reduced PPD values. While this will necessitate increased expense upfront, once the new customary values are understood there is the potential for significant cost savings from reduced disability awards. E. Until the evidentiary issues are clarified, obtain AMA ratings from physicians who are available to give evidence depositions. F. Provide any physician, IME or otherwise, from whom you have requested an AMA rating, with the specific terms of the statute so that not only is the AMA rating provided with the other items, but the additional provisions of section 8.1(b) referencing appropriate measurements, including, but not limited to, loss of range of motion, loss of strength, measured atrophy of tissue mass consistent with the injury, and other relevant measurements be included. Failure to do so may subject the impairment report to lacking appropriate foundation and therefore, inadmissible. C-13

32 G. Use AMA impairment ratings in pro se cases, especially in injuries which traditionally result in significant awards, as a means of showing the pro se petitioner the impairment rating, and challenge the arbitrator to state a basis for a higher award. H. Retain knowledgeable counsel who have studied the amendments and the strategies of the petitioner s bar and are prepared to aggressively and creatively advocate the significance of AMA ratings in reducing PPD awards. C-14

33 Bruce L. Bonds - Partner Bruce is a past Chair of our state-wide workers' compensation practice group and has spent his entire legal career with Heyl Royster beginning in 1982 in the Peoria office. He concentrates his expertise in the area of workers' compensation, third-party defense of employers, and employment law. He served as a technical advisor to the combined employers group in the negotiations which culminated in the 2005 revisions to the Illinois Workers' Compensation Act. More recently, Bruce worked as a technical advisor to the Illinois Chamber of Commerce as well as a number of Illinois legislators and State agencies in the process that resulted in the 2011 amendments to the Illinois Workers' Compensation Act. Bruce was appointed by Mitch Weiss, Chairman of the Illinois Workers' Compensation Commission, to a committee of attorneys who reviewed and made recommendations for revisions to the Rules Governing Practice before the Workers' Compensation Commission. With extensive experience before the Illinois Workers' Compensation Commission, Bruce has defended employers in thousands of cases during the course of his career. As a result of his experience and success, his services are sought by self-insureds, insurance carriers, and TPAs. Bruce is an adjunct professor of law at the University of Illinois College of Law where he has taught workers' compensation law to upper-level students since Bruce co-authored a book with Kevin Luther of the firm's Rockford office entitled Illinois Workers' Compensation Law, Edition, which was published by West. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. The Second Edition of this treatise is due for publication in the Spring of Bruce is a frequent speaker on workers' compensation issues at bar association and industrysponsored seminars. Bruce has served as Vice-Chair of the ABA Committee on Employment, Chair of the Illinois State Bar Association Section Council on Workers' Compensation, and currently serves on the Employment Law Committee of the Chicagoland Chamber of Commerce and the Illinois Chamber of Commerce Workers' Compensation Committee. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin; another survey published by Chicago magazine named Bruce one of the "Best Lawyers in Illinois" for Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Named to the 2012 Illinois Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation. Professional Associations American Bar Association (Past Vice-Chair of Employment Law Committee) Illinois State Bar Association (Past Chair Workers' Compensation Law Section Council) Champaign County Bar Association Illinois Association of Defense Trial Counsel (Member, Workers' Compensation Committee) Defense Research Institute Illinois Self-Insurers Association Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, Washington University School of Law, 1982 Bachelor of Arts-Finance, University of Illinois, 1979 C-15 Learn more about our speakers at

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35 ESTABLISHING ACCIDENT AND CAUSAL CONNECTION SEIZE THE MOMENT TO REQUIRE WORK RELATEDNESS BY A PREPONDERANCE OF THE EVIDENCE Presented and Prepared by: Craig S. Young cyoung@heylroyster.com Peoria, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen D-1

36 ESTABLISHING ACCIDENT AND CAUSAL CONNECTION SEIZE THE MOMENT TO REQUIRE WORK RELATEDNESS BY A PREPONDERANCE OF THE EVIDENCE I. INTRODUCTION... D-3 II. THE 2011 DEBATE PROCESS AND ULTIMATE RESULT... D-3 III. IV. POTENTIAL IMPACT OF STATUTORY CODIFICATION OF BURDEN OF PROOF STANDARD ON COMMISSION FINDINGS RELATING TO CAUSATION... D-4 ADDITIONAL CHANGES TO CAUSATION ANALYSIS CREATED BY STATUTORY CHANGES AND POLITICAL CLIMATE... D-7 V. PRACTICE POINTERS... D-7 A. Thoroughly Investigating the Petitioner's Medical History... D-8 B. Preparation of Exceptional Job Analyses... D-8 C. Investigate Outside Activities... D-8 D. Fully Document File for IME Physician... D-8 E. Selection of Credible IME Physicians... D-9 F. Be More Aggressive in Asserting Causation Defenses to Deny Claims... D-9 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. D-2

37 ESTABLISHING ACCIDENT AND CAUSAL CONNECTION SEIZE THE MOMENT TO REQUIRE WORK RELATEDNESS BY A PREPONDERANCE OF THE EVIDENCE I. INTRODUCTION A change to the causation standard was likely the most hotly debated topic in the discussions leading up to the workers compensation legislative reforms of Employer interest groups focused on other states which had tightened causation standards leading to significant reduction in workers compensation costs. Those interest groups correctly argued that Illinois liberal causation standard places the entire burden of an injury on the employer, even when the work injury is only a minor contributing factor to the physical condition. Employers pointed to states like Missouri and Florida where recent changes to the causation standard have substantially reduced costs. While the final legislation did not contain a clear redefinition of the causation standard, the focus on causation created by the debate, along with certain changes which did occur to the workers compensation statute with regard to burden of proof, have created additional opportunities for employers with regard to the issue of causation. II. THE 2011 DEBATE PROCESS AND ULTIMATE RESULT Throughout the legislative debate of 2011, employer interest groups advanced various versions of statutory language which attempted to redefine accident, injury, aggravation, and causal relationship. While numerous versions of statutory language emerged, the main focus was to craft language which would require the accident to be the primary factor in causing the resulting medical condition and disability. The ultimate proposal from employer groups to modify the causation standard included additions to section 5 of the Act as follows: (d) (e) The term accident as used in this Act means an occurrence arising out of the employment resulting from a risk incidental to the employment and in the course of the employment at a time and place and under circumstances reasonably required by the employment. The term injury as used in this Act means a condition or impairment that arises out of and in the course of employment. A condition or impairment caused by accident is compensable only if the accident was the primary factor in causing both the resulting medical condition and disability. The primary factor is defined to be the major contributory factor, in relation to other factors, causing both the resulting medical condition and disability. Injury includes the aggravation of a pre-existing condition by an accident arising out of and in the course of the employment, but only for so long as the aggravation of the pre-existing condition continues to be the primary factor causing the disability. D-3

38 (1) An injury is deemed to arise out of and in the course of the employment only if: (A) it is reasonably apparent, upon consideration of all circumstances, that the accident is the primary factor in causing the injury; and (B) it does not come from a hazard or risk unrelated to the employment to which employees would have been equally exposed outside of the employment. (2) An injury resulting directly or indirectly from idiopathic causes is not compensable. These changes were not included in the legislative reforms. Numerous bills remain pending before the legislature as we speak which would potentially change the causation standard if adopted. It does not appear there is much likelihood of a change any time soon. As a result, Illinois remains an any cause state as far as causation is concerned. The best interpretation of existing law therefore remains that in order to recover in Illinois an employee needs only show that the accident might or could have been a cause of his injury. The employee does not need to prove that the injury was the cause or even the primary cause. While this interpretation of the 2011 reforms is accurate and clearly represents the current state of causation law in Illinois, other legislative changes did occur which raise interesting questions regarding the current status of the causation standard in Illinois. Section 5 of the Workers Compensation Act was amended to include the following language: (d) To obtain compensation under this Act, an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of employment. 820 ILCS 305/1(d). This represents a new addition to the Act. While this is the exact standard which has been utilized for many years based upon case law precedent, the codification of the above language is the first time burden of proof or causation language appeared in the workers compensation statute. It is uncertain why the legislature would have chosen to codify this language which had, for many years, been recognized as the law in the State of Illinois established pursuant to case law precedent. III. POTENTIAL IMPACT OF STATUTORY CODIFICATION OF BURDEN OF PROOF STANDARD ON COMMISSION FINDINGS RELATING TO CAUSATION As mentioned above, the 2011 legislative reforms codify for the first time the previously existing recognized standard on burden of proof and causation. For the first time, rather than relying D-4

39 exclusively upon case law interpretation, the Workers Compensation Act clearly states that an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of employment. While this represents a codification of the law as it previously existed through case law, and therefore arguably does not change the causation standard, some consideration of the intent behind codification of this language in the statute is warranted. For years, the aggressive respondent s counsel has argued that the standards applied by the Industrial Commission to causation arguments do not satisfy this burden of the petitioner to prove their case by a preponderance of the evidence. By finding causation when the requirement is only that the work injury be found as a cause as opposed to the, or a primary cause arguably does not constitute satisfaction of the petitioner s burden of proof. In short, it is not clear this definition of causation satisfies the petitioner s burden of proving causation by a preponderance of the evidence. Part of the difficulty in enforcing this burden of proof which rests with the petitioner is the lack of clarity with regard to the meaning of preponderance of the evidence. Almost all of the case law defining preponderance of the evidence addresses non-workers compensation cases and therefore cases which ultimately are presented to juries. Illinois courts almost uniformly hold that preponderance of the evidence is a common phrase and requires no definition. Chicago City Ry. Co. v. Kastrzewa, 141 Ill. App. 10 (1st Dist. 1908); Scerrino v. Dunlap, 14 Ill. App. 2d 355 (1st Dist. 1957). Any terms or added language modifying preponderance is generally condemned. Language imposing the burden upon the plaintiff, such as stating that the evidence preponderates in favor of the plaintiff, even slightly, he prevails, is error. Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482 (1930). It is also improper to give instructions requiring the plaintiff to establish or show by a preponderance of the evidence or to instruct that the jury must be satisfied. Rolfe v. Rich, 149 Ill. 436 (1893); Rithmiller v. Keenan, 3 Ill. App. 2d 214 (2d Dist. 1954). Furthermore, it is error to impose a greater burden, such as the burden of convincing or satisfying the jury. Abrahamian v. Nickel Plate Ry. Co., 343 Ill. App. 353 (1st Dist. 1951). This well-established line of cases has traditionally held, however, that the preponderance standard does infer a greater weight of the evidence. Numerous accepted phrasing as to the definition of preponderance of the evidence exists. Definitions found acceptable include that evidence which, in the light of all the facts and circumstances in the case, and guided by these instructions is, in your judgment entitled to the greater weight and credit. Gleason v. Cunningham, 316 Ill. App. 286, 292 (4th Dist. 1942). Another court approved language which defined preponderance of the evidence as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. Travelers Ins. Co. v. Webster, 251 Ill. App. 3d 46, 50 (3d Dist. 1993). Illinois Pattern Jury Instructions reflect the court s reluctance to define the term. The civil jury instruction, which acts as the basis for criminal preponderance instruction, defines preponderance as [w]hen I say that a party has the burden of proof on any proposition, or use D-5

40 the expression if you find or if you decide, I mean you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true. Ill. Pattern Jury Instr. Civ (2011 Ed.). While there tends to be a reluctance to define preponderance of the evidence as a necessity of establishing causation by greater than a 50 percent probability, one Illinois court has defined the burden in percentage terms. In Department of Central Management Services v. Illinois State Labor Relations Board, 249 Ill. App. 3d 740, 748 (4th Dist. 1993), the court determined that when interpreting the Illinois Public Labor Relations Act, the term preponderance as intended in the statute meant majority. The court relied on Webster s definition of majority as a number greater than half of the total in conclusion that preponderance meant greater than 50 percent. It is relevant that this court was addressing a statute which required the plaintiff to prove a proposition by a preponderance of the evidence as opposed to case law. This is particularly instructive now that the legislature has chosen to codify in the workers compensation statute the petitioner s burden to prove his accident by a preponderance of the evidence. While it must be cautioned that the standard of proof on causation has not changed, and the language requiring the petitioner to prove their accident by a preponderance of the evidence has always been the law, aggressive respondent counsel should look for opportunities to argue the significance of the legislature s decision to codify by statute this preponderance of the evidence language. Any definition of accident includes the requirement that the claimed condition of disability be causally related to the accident. Although the exact meaning of preponderance of the evidence is not clearly defined in the case law, it does obviously embody the concept of proof by a greater weight of the evidence, or beyond 50 percent of the evidence. In numerous situations, prior decisions from the Industrial Commission which have found certain injuries and repetitive traumas to be a cause of an injury or condition of ill-being, arguably do not meet this standard. Petitioners, of course, have the argument this has always been the law, and even with this existing law, the Commission has always found causation any time the accident is considered to be a cause of the condition of ill-being. Petitioners will also point out that if the legislature had intended to change the causation standard, they certainly had the opportunity to do so based upon the strong debate to clearly require that the accident be the primary cause. While that is true, there is at least some significance to the fact that this burden of proof language has now been codified by statute. Certainly, this signals some intent by the legislature for the petitioner to prove causation by a greater weight of the evidence. As a result, there is a potential that even though the causation standard was not changed by statute, we now have an argument that evidence establishing the accident to be a cause of the injury is not sufficient. It must be emphasized that this is considered a novel, and extremely aggressive defense. Clearly, it is not certain there would be a high probability of prevailing on this defense, given the fact the standard has not clearly changed. In the right case, however, asserting this defense may be appropriate when the evidence is clear that the accident was only a minimal contributing factor to the injury or condition of ill-being. D-6

41 IV. ADDITIONAL CHANGES TO CAUSATION ANALYSIS CREATED BY STATUTORY CHANGES AND POLITICAL CLIMATE Of course in many cases, the respondent is able to develop evidence that the accident had no causative impact on the alleged injury or condition of ill-being. Pursuant to the very liberal manner in which the Industrial Commission has typically considered these cases, most such causation disputes have typically been won by the petitioner, especially when evidence establishing causation comes from the treating doctor. Irrespective of the interpretation given to preponderance of the evidence by the Commission and by the courts, other changes in the statute, and in the Commission s structure appear to be moving in a favorable direction for employers. A number of factors may be contributing to this positive trend. First of all, there was legislative change in the 2011 amendments which require arbitrators to apply the law more objectively, and more fairly. The statute now clearly requires that all commissioners and arbitrators shall: Dispose of all workers compensation matters promptly, officially and fairly, without bias or prejudice; Be faithful to the law and maintain professional competence; Not be influenced by partisan interest, public clamor, or fear of criticism; Be faithful to the canons of the code of judicial conduct; and Base decisions exclusively on evidence in the record. While this has always been the obligation of arbitrators and commissioners, it is questionable whether or not these standards have been followed by arbitrators and commissioners consistently. In particular on issues of causation, evidence presented by respondents has not always been fairly considered by the Workers Compensation Commission. Without any requirement to do so, the default manner in which causation disputes have been decided by the Commission has typically been to follow the opinion of the petitioner s treating doctor over the opinion of a respondent s IME doctor, even when the evidence offered by the respondent is clearly more compelling and rebuts causation by a preponderance of the evidence. Early trial results following implementation of the new Commission structure tends to indicate that the above-cited statutory language, along with the new political environment may have resulted in arbitrators looking more closely at compelling causation evidence offered by respondents. V. PRACTICE POINTERS As a result of the changing environment with regard to the Workers Compensation Commission s interpretation of the causation standard, the savvy claims professional will pay more attention to the causation issue and work more aggressively to develop causation evidence. Successful strategies will include: D-7

42 A. Thoroughly Investigating the Petitioner's Medical History As arbitrators and commissioners pay more attention to the causation issue, the importance of establishing pre-existing conditions or other causes for the petitioners condition of ill-being increases. In fact, petitioner s attorneys are currently aware of this and are presenting greater roadblocks to employers and respondents attempting to obtain this type of evidence. When there is concern of a pre-existing condition or a competing cause for the condition of ill-being, careful use of subpoenas and motions before the Commission if necessary to compel production of documents is important. Obtaining this information for cross examination of treating doctors and for bolstering the opinions of IME doctors is more important than ever B. Preparation of Exceptional Job Analyses There is likely no place where we will see a greater impact of a changing approach to causation than with repetitive trauma claims. More so than ever, when there is dispute relating to repetitive trauma, it is important for very good job analyses to be prepared by the respondent. Usually, it is best for these to be done by a professional and competent outside agency who will be able to provide the appearance of objectivity in preparing the job analysis. Detailed reports outlining forces and pressures exerted on the body, along with video analysis is important. Every effort to include a fair representation of all physical tasks associated with the job should be made. C. Investigate Outside Activities Typically employers and respondents have not done much investigation about activities the respondent may undertake outside of work because our Industrial Commission has almost uniformly ignored that type of activity. With the Commission looking closer at causation, outside activities will be more important. Even if surveillance is not possible, if evidence can be developed of hobbies or other interests which produce significant repetition, obtaining as much information as possible is important. D. Fully Document File for IME Physician In addition to obtaining pre-existing medical records, it is important that the IME physician have a complete and well-organized copy of the medical record. In particular, when objective testing has occurred in the form of x-rays, MRIs, CT scans, and other films, diagnostic quality copies of those films must be provided for direct review by the IME physician. When arthroscopic surgeries have taken place, pictures of the procedure will be available and should be obtained for review by the IME physician. While it has always been important to make sure an IME physician s opinion is bolstered by a complete copy of the medical record, that requirement is more relevant now than ever before. Credible opinions bolstered by a review of the objective evidence supporting the opinions will likely carry more weight moving forward with the Commission. D-8

43 E. Selection of Credible IME Physicians While it has always been important to select credible IME physicians, that requirement is more important now. IME physicians who have the reputation of saying whatever the respondent pays them to say are not helpful. While there is always the risk of a disfavorable opinion when the case is sent to a straight shooter for an opinion, it is important to use only credible IME physicians. We now have a much better chance of winning causation disputes when we have credible IME opinions, and we don t want to lose that opportunity by using physicians who simply do not carry any credibility with the Commission. F. Be More Aggressive in Asserting Causation Defenses to Deny Claims Previously, many claims handlers justifiably gave only cursory consideration to causation defenses. This occurred because it was understood that far too many good causation defenses would be lost before the Industrial Commission. This tendency to overlook causation defenses was especially true in repetitive trauma cases. That approach to causation defenses should change. A greater likelihood of winning the causation issue at trial should result in claims handlers denying more cases up front based upon a causation defense. It is hoped a more aggressive approach to defending cases based on causation could result in fewer unnecessary surgeries. Irrespective of the ultimate result at trial, this early denial will reap benefits for the claims handling process. D-9

44 Craig S. Young - Partner Craig is Chair of the firm's workers' compensation practice group. He began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in He has spent his entire career with Heyl Royster and became a partner in He is recognized as a leading workers' compensation defense lawyer in the State of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. Craig has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves as Chair of the Workers' Compensation Committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organizations and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Public Speaking Workers Compensation Reform in Illinois Presented in numerous locations (2012) Elements of a Winning Workers Compensation Program Downstate Illinois Occupational Safety & Health Day (2010) Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers Compensation Risk Control Workshop (2010) Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues Lorman Education Services (2008) The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement Lorman Education Services (2008) Medicare Set-Aside Agreements-The Rest of the Story Defense Research Institute (2007) Resolving (or Alleviating) the Chronic Pain Case Heyl, Royster, Voelker & Allen (2007) Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Peoria County Bar Association 2008 Distinguished Community Service Award Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Board Member and Secretary-Treasurer) Defense Research Institute (Workers' Compensation Committee - Chair) Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude), Bradley University, 1982 D-10 Learn more about our speakers at

45 LIMITATIONS ON AWARDS FOR REPETITIVE TRAUMA CLAIMS: IS THERE FINALLY LIGHT AT THE END OF THE CARPAL TUNNEL? Presented and Prepared by: Kevin J. Luther Rockford & Chicago, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen E-1

46 LIMITATIONS ON AWARDS FOR REPETITIVE TRAUMA CLAIMS: IS THERE FINALLY LIGHT AT THE END OF THE CARPAL TUNNEL? I. NEW AWARD LIMITATIONS FOR REPETITIVE CARPAL TUNNEL SYNDROME... E-3 II. MEDICAL LITERATURE AND RESEARCH... E-3 III. RECENT REPETITIVE TRAUMA ARBITRATION DECISIONS... E-4 A. Repetitive Trauma Typing/Keyboarding Carpal Tunnel Syndrome Denied (June 2011)... E-4 B. Repetitive Trauma Carpal Tunnel Syndrome for Factory Worker Denied (March 2011)... E-5 C. Repetitive Trauma Factory Worker Low Back Claim Denied (1987)... E-5 D. Repetitive Trauma Neck Injury Denied (November 2011)... E-6 E. Repetitive Trauma Factory Worker Neck Denied (March 2011)... E-8 F. Repetitive Trauma Factory Worker Low Back Denied (November 2011)... E-8 G. Repetitive Trauma Factory Worker Right Shoulder Denied (October 2011)... E-9 H. Repetitive Trauma Factory Worker Fibromyalgia and Severe Depression Denied (April 2008)... E-9 I. Recent Media Coverage of Carpal Tunnel Syndrome Claims... E-10 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. E-2

47 LIMITATIONS ON AWARDS FOR REPETITIVE TRAUMA CLAIMS: IS THERE FINALLY LIGHT AT THE END OF THE CARPAL TUNNEL? I. NEW AWARD LIMITATIONS FOR REPETITIVE CARPAL TUNNEL SYNDROME 820 ILCS 305/8(e)(a): Effective Date: Accident Occurring on or After June 28, 2011 In accidental injuries involving carpal tunnel syndrome due to repetitive trauma or cumulative trauma, the total number of weeks available for permanency pursuant to section 8(e) is 190 weeks. All other hand injuries are limited to 205 weeks. For repetitive trauma or cumulative trauma carpal tunnel syndrome claims, permanent partial disability pursuant to section 8(e) shall not exceed 15 percent loss of use of the hand, except for causes shown by clear and convincing evidence. In no event shall the award pursuant to section 8(e) in a repetitive trauma/cumulative trauma carpal tunnel claim exceed 30 percent loss of use of the hand. II. MEDICAL LITERATURE AND RESEARCH Many arbitrators and commissioners at the Illinois Workers Compensation Commission have for years assumed that there is an undeniable relationship between work-related hand movements and the development of carpal tunnel syndrome. However, there is mounting medical evidence and research which suggests that the work environment may not be an undeniable cause in the development of carpal tunnel syndrome. Many physicians, as well as arbitrators and commissioners, are very quick to conclude that repetitive or intensive computer keyboard use is a cause of carpal tunnel syndrome. This conclusion has been debunked by a number of medical studies. Arthritis & Rheumatism. 2007, 56 (11): This is a publication of the American College of Rheumatology. Many studies have examined what risk factors exist in the development of carpal tunnel syndrome. One study in Great Britain showed that risk factors associated with carpal tunnel syndrome were (1) previous wrist fracture, (2) rheumatoid arthritis, (3) osteoarthritis of the wrist and carpus, (4) obesity, (5) diabetes, (6) the use of insulin, (7) the use of sulphonylureas (used to manage type 2 diabetes), Metformin (also used to treat type 2 diabetes), and Thyroxine (used to treat hypothyroidism, which is an underactive thyroid). Interestingly, smoking, hormonereplacement therapy, the combined oral contraceptive pill, and oral corticosteroids were found not to be associated with carpal tunnel syndrome. Journal of Hand Surgery, Br. 2004, 29(4): One medical study examined whether or not carpal tunnel syndrome can be considered work related. The study showed that the primary risk factors in the development of carpal tunnel E-3

48 syndrome are: (1) being a woman of menopausal age, (2) obesity or lack of fitness, (3) diabetes or having a family history of diabetes, (4) osteoarthritis of the carpal metacarpal joint of the thumb, (5) smoking, and (6) lifetime alcohol intake. It concluded that except in cases of work that involve very cold temperatures (possibly in conjunction with load and repetition) such as butchery, the work environment is less likely than demographic- and disease-related variables to cause carpal tunnel syndrome. ANZ Journal of Surgery. 2002, 72(3): Many medical studies have supported a hypothesis that carpal tunnel syndrome causes are multifactorial. A recent study has concluded that factors such as obesity, hypothyroidism, and diabetes are more prevalent in the group of CTS patients that were examined in this study. It was significantly less with carpal tunnel syndrome patients who smoked. Annals of Plastic Surgery American Journal of Physical Medicine and Rehabilitation. 48(3): One medical study focused specifically on railroad workers. It concluded that in the population claiming that carpal tunnel syndrome was caused by railroad occupations, there was significant association between carpal tunnel syndrome and body mass index, age, and risk index, but not job classification. American Journal of Physical Medicine and Rehabilitation. 2002, 81(2): The risk factors for the development of carpal tunnel syndrome in women has been studied. There were findings of a higher risk of women with diabetes and myxoedema (severe hypothyroidism where the deficiency reduces cellular metabolism, which affects mental, physical, and cardiac health), but these contributed in only a small proportion of all cases in women. There was no link with psychologic problems or nonmusculoskeletal pain complaints. The increased incidence of carpal tunnel syndrome in women may be partly due to hormonal factors but is also related to an underlying propensity to musculoskeletal problems and their higher overall frequency in women. American Journal of Epidemiology. 2000, 151(6): III. RECENT REPETITIVE TRAUMA ARBITRATION DECISIONS A. Repetitive Trauma Typing/Keyboarding Carpal Tunnel Syndrome Denied (June 2011) The petitioner was a 65-year-old executive assistant/secretary who alleged that repetitive work duties, including typing/keyboarding, caused bilateral carpal tunnel syndrome. The petitioner previously had a right wrist fracture. Dr. J. Pomerance examined the petitioner, as well as the petitioner s work duties, and concluded that the petitioner s condition was not related to her work activities. The arbitrator found specifically that the opinion of Dr. Pomerance was persuasive and determined that the petitioner failed to prove that she sustained accidental injuries resulting from her repetitive work duties. Compensation was denied. 09 WC 7899, 09 WC 7900 (June 15, 2011). E-4

49 B. Repetitive Trauma Carpal Tunnel Syndrome for Factory Worker Denied (March 2011) The petitioner was a 51-year-old male who testified that he never had either right- or left-hand problems or numbness in the past before he started working for the respondent. He worked in a warehouse and testified that his work duties varied and required him to use his hands all day, including using a utility knife, lifting up items, and driving a fork truck. EMG testing revealed severe carpal tunnel syndrome on the left hand. The petitioner s treating physician testified that based on the petitioner s description of work duties, there was causal connection between the petitioner s carpal tunnel syndrome and his work duties. The respondent retained a section 12 orthopedic specialist who reviewed videotapes of the petitioner s work activities, as well as a complete set of all medical records and surveillance. The respondent s examiner, pursuant to section 12, concluded that the petitioner s work duties did not demonstrate activities that would lead to the development of carpal tunnel syndrome. The arbitrator found that there was insufficient evidence introduced to support the petitioner's claim that work duties were a causative factor resulting in the petitioner s carpal tunnel syndrome. He specifically found that there was insufficient evidence to support a claim that a repetitive gripping maneuver required in the operation of a forklift was a causative factor in the carpal tunnel syndrome. 00 WC (Apr. 1, 2011). C. Repetitive Trauma Factory Worker Low Back Claim Denied (1987) The petitioner was a mold maker who worked for the respondent for several years. On the date of the alleged accident, the petitioner worked from 3:30 p.m. until 12:30 a.m. At that time, the petitioner complained to his supervisor of back pain, and he was allowed to go home. The petitioner testified that his work duties that day required him to lift 75 to 100 pounds every 12 minutes. Approximately three days after the occurrence, testimony was introduced which established that the petitioner helped a friend, who happened to be his supervisor, lift and move a desk. This desk was approximately 100 pounds and was awkward to carry. After the incident of moving the desk outside of work, the petitioner did report to work and claimed that after a few hours his back gave out on him. At arbitration, the arbitrator found that the petitioner s low back claim followed repetitive heavy lifting. The Workers Compensation Commission reversed the arbitrator s decision. The Workers Compensation Commission denial was reversed. However, on appeal, the appellate court reinstated the WCC finding of no causal connection. E-5

50 The petitioner's attorney argued on appeal that there was no medical evidence whatsoever which tied the alleged intervening incident to the petitioner s disability, referring to the deskcarrying incident. The appellate court noted that the burden of establishing the elements of a claim is on the employee, not the employer. Furthermore, the appellate court noted that where the parties choose not to offer medical evidence on the issue of causal connection, the Workers Compensation Commission is not precluded from finding against the petitioner. In essence, it stated that medical testimony in this circumstance is not necessarily required to either establish or disprove causation and disability. The appellate court noted that the sequence of events supports the Workers Compensation Commission findings that the petitioner s condition was not causally related in light of the fact that the petitioner helped move a 100- to 200-pound desk up 12 stairs allegedly after his accident. The appellate court noted that the petitioner s delay in seeing a doctor until after the desk-lifting incident supports a reasonable inference that the desk-lifting incident activities, rather than lifting loads at work, caused the low back condition. It was noted that the petitioner relied entirely on his own testimony that his back started hurting at work. While uncorroborated evidence of an injured worker may be sufficient to support a work accident, in this particular situation the petitioner s testimony was insufficient. The testimony really merely recited a complaint by the petitioner to his supervisor, who allowed the petitioner to go home after nine hours of work. The appellate court felt that the Workers Compensation Commission was on solid footing in accepting the lifting incident as a reasonable alternative explanation for the petitioner s injuries, as opposed to repetitive work duties. Heston v. Illinois Industrial Comm n, 164 Ill. App. 3d 178, 517 N.E.2d 632, 115 Ill. Dec. 221 (5th Dist. 1987). D. Repetitive Trauma Neck Injury Denied (November 2011) The petitioner was an operator working first shift for the respondent. The petitioner testified that as an operator, she was to utilize a sonic hoist. The petitioner testified that the sonic hoist control kept going upwards, and because the petitioner was short, she was required to repetitively pull down the sonic hoist. She testified that at one point, the sonic hoist control went up from her workstation, and when she had to grab it and pull it down, she heard various snaps and pops in the base of her neck and shoulder. The petitioner did seek medical treatment on the day of the occurrence, but there was no notation in the medical records of a work-related injury. It was also discovered that a week prior to the occurrence, the petitioner was complaining of right shoulder pain and pain in the back/neck. The petitioner relied upon the opinions of her treating neurosurgeon, who performed neck surgery. The treating physician at deposition testified that because of the petitioner s history and description of work duties, he felt that the neck condition was related to work duties as well E-6

51 as the neck surgery. When asked to describe how the mechanics of the petitioner s restriction could cause injury to the neck, the treating physician stated that he could not make this explanation. When asked again about the mechanics and the basis of his causal-connection opinion, he offered the following: A. I don t know enough about the physics. One can almost say the forensics, the force being applied on a particular vector to then be able to say biomechanically how that then exactly translates into either a disc herniation or into a compression of a nerve root. I really don t have any training in that regard. On further cross-examination, the treating physician was asked the following question and provided the following answer: Q. You ve told us on direct examination when you were asked about the mechanics involved in what she says happened on July 15, 2008, that you do not have an opinion as to how those mechanics could result in a [herniated] disc at the C6-C7 level on the right side; is that correct? A. A disc herniation; that s correct. The treating physician further stated that his opinion that the petitioner's condition was work related was solely based on the history given to his physician s assistant by the petitioner that the petitioner had no symptoms prior to the day of the occurrence. Evidence was introduced, however, showing that the petitioner had similar symptoms in her right shoulder/neck prior to the occurrence. The treating neurosurgeon was also asked about the specific surgical findings. He admitted that all of the herniated discs in the neck (three levels) could have existed prior to the occurrence and that the surgical findings demonstrated significant pre-existing disease and processes which existed prior to the accident. The respondent offered a report from a neurosurgeon who reviewed all medical records, as well as a DVD of the petitioner s work duties, including the sonic lift operation. The examining neurosurgeon for the respondent concluded that the petitioner did not sustain any injury on the day as alleged, whether of a traumatic or repetitive-trauma nature. He concluded that the forces involved, as seen on the video of the workplace, were trivial and would not cause a traumatic injury. He noted that no repetitive motion-type injury was sustained. He noted that the surgery was consistent with individuals with degenerative disc osteophytes, fragmented discs, fissures in the annulus and ligaments, hypertrophic ligament, and central and foraminal stenosis. He concluded that what may or may not have occurred on the day of the occurrence did not aggravate, accelerate, or exacerbate the underlying conditions. He concluded that the petitioner s work duties were not a contributing factor to her symptoms or to her medical treatment. 08 WC (Nov. 17, 2011). E-7

52 E. Repetitive Trauma Factory Worker Neck Denied (March 2011) The petitioner started working for the employer in He was a warehouse worker, which required him to locate items, lift items, and operate pallet jacks, forklifts, and a high lift. The petitioner testified that in the years 2006 and 2007, he was required to operate a high lift, which would require him to look up in the air as the lift would retrieve and place items on shelves high above the floor. He testified that he would spend four hours per day on the high lift and some days as many as hours per shift. The petitioner testified that when he placed the pallets and items on the top, second, and thirdfrom-the top shelf, he would have to bend his neck so that he was looking straight up. The petitioner testified that as he would do his job and look up, he began to notice tingling in his hands and arms. The petitioner received medical treatment that included testing, and eventually he underwent neck surgery. The petitioner underwent an anterior cervical discectomy and fusion at the C4-5, C5-6, and C6-7 levels. The petitioner introduced the medical records of the treating neurosurgeon, which stated that the petitioner noticed the symptoms at work, but there was no specific opinion stating that the condition was related to work duties. Instead, the petitioner relied on a section 12 evaluator who frequently testifies in workers compensation claims throughout Illinois on behalf of petitioners. This physician concluded that the petitioner s neck injury was related to work. However, at evidence deposition, the petitioner s IME physician conceded that the petitioner s neck condition was pre-existing and that merely looking up and stacking items at work was simply symptom producing events. The respondent offered two opinions from section 12 physicians who opined that the petitioner s cervical/neck condition and surgery were not a result of any work-related accident, including any work associated with repetitive trauma. Significant evidence was introduced discounting the petitioner s description of the number of times that he was required to look up while operating the high lift. 12 IWCC 0435, 07 WC 16699, 07 WC (Mar. 25, 2011). F. Repetitive Trauma Factory Worker Low Back Denied (November 2011) The petitioner was a 41-year-old female who claimed that while working on a shipping dock, she noticed pain in her low back. She did not report any incident on the accident date which was alleged, and the respondent introduced the risk control manager, who testified that the respondent s work rules and policies required that an accident be reported immediately. All medical records subpoenaed were introduced. Those records showed inconsistent histories. At times, the petitioner would state to the medical providers that she had low back pain as a result of work duties, and in other portions it was noted that an injury was denied. There were E-8

53 some notations that the petitioner stated, Initially claims began at work later stated began at home. The arbitrator found that the petitioner s low back condition was not related to work duties. 08 WC (Nov. 29, 2011). G. Repetitive Trauma Factory Worker Right Shoulder Denied (October 2011) The petitioner alleged that repetitive work duties caused her right shoulder injury, which manifested itself on a certain date. The petitioner worked in a factory setting as an assembler. She described her job in great detail during the hearing and stated that during the course of her work duties, she began to develop right shoulder pain. The respondent offered into evidence a group of DVDs showing work activities done in the assembly line by the respondent. In addition, the respondent offered a written job description. The treating physician s records suggested that the petitioner complained of right shoulder pain due to overuse and repetitive activity of the shoulder. The respondent did have a section 12 examination by an orthopedic surgeon who specialized in shoulder surgery. This physician examined the petitioner on one occasion and also reviewed the petitioner s work duties. He testified that he did not believe the petitioner s work duties caused any injury and did not believe that the work duties were consistent with developing impingement syndrome. The respondent also introduced a DVD of the petitioner s work duties. The petitioner admitted that the DVD depicted the petitioner s work duties, but she claimed that the pace on the DVDs was not fast enough. On cross-examination of the petitioner s section 12 examiner at deposition, the petitioner s examining physician conceded that the activities demonstrated on the DVD of the respondent did not detail work activities that would be unduly stressing to the shoulders or upper extremities. The petitioner s examining physician also conceded that the MRI film showed findings that were consistent with long-standing degenerative conditions of the right shoulder and that it was a fair statement to conclude that there was no visual evidence of any aggravation due to work duties that you can point to in either shoulder. 07 WC 38872, 07 WC (Oct. 11, 2011). H. Repetitive Trauma Factory Worker Fibromyalgia and Severe Depression Denied (April 2008) The petitioner was a female employee for the respondent which operated a warehouse. The petitioner estimated that she would walk approximately seven-ten miles per day on a concrete surface in performing her work. She alleged repetitive-trauma injuries to multiple parts of her body, including her legs, back, neck, and upper extremities. E-9

54 The petitioner had a significant medical history, and these records were introduced into evidence by the respondent at the time of arbitration. The petitioner did present a rheumatologist who is board certified in internal medicine. He testified the petitioner s most serious problems were fibromyalgia and severe depression. This treating physician opined that the petitioner s condition was work related, but at evidence deposition he conceded that he lacked any knowledge of the petitioner s extensive past medical history concerning her physical and psychological conditions prior to her employment with the respondent. He based his opinions solely upon an understanding that the petitioner s past medical history documented no problems before she worked for the respondent in its warehouse. The arbitrator found that the petitioner s causal connection opinion from this physician was based on inaccurate and incomplete historical information, and therefore his opinion was not persuasive. The arbitrator noted that unlike the treating physician, the respondent s evaluating physician reviewed and considered the petitioner s significant past medical treatment and condition prior to her alleged accidents and employment with the respondent. The respondent s evaluating physician concluded that the petitioner s work environment did not cause the petitioner s conditions. The arbitrator found the opinions of the respondent s evaluating physician to be credible and persuasive. 01 WC 10117, 04 WC 02187, 08 IWCC 0459 (Jan. 4, 2006). I. Recent Media Coverage of Carpal Tunnel Syndrome Claims Workers comp claims at Menard are being denied after arbitrator switch By George Pawlaczyk and Beth Hundsdorfer Belleville News-Democrat (April 2012). A strategy of presenting old arguments to new arbitrators has resulted in a rarity at workers compensation hearing sites in Southern Illinois a string of denials for repetitive trauma claims filed by guards and other employees of the Menard Correctional Center. According to Illinois Attorney General Lisa Madigan s office, seven new claims made by current or former prison employees, including five retirees, recently were denied by arbitrators reassigned to the downstate hearing sites. Previously, these kinds of cases were primarily heard and nearly always approved by John Dibble and Andrew Nalefski, who were among eight arbitrators removed in 2011 following a series of investigative reports in the Belleville News-Democrat. The newspaper reported that at least 230 Menard employees, with the bulk of them being guards, received tax-paid settlements ranging from $20,000 to $80,000 after surgery for injuries they claimed were caused by turning keys and operating cell locking mechanisms. The payouts totaled about $10 million. Nearly all the claimants returned to work. E-10

55 Dibble declined to comment. Nalefski could not be reached for comment. What these decisions show is that the new arbitrators are looking very closely at our arguments and the evidence we're presenting, compelling petitioners to present contrary evidence to overcome these defenses, said Natalie Bauer, a spokeswoman for Madigan. These are the same arguments we made previously before arbitrators Dibble and Nalefski and lost but before the new arbitrators, they're being found as valid. With the new arbitrators in place, we're seeing very different results on behalf of the state and the taxpayers. The News-Democrat confirmed the rulings in the seven cases, which have been appealed to the nine-member Workers Compensation Commission in Chicago. The commission previously upheld repetitive trauma cases involving Menard guards. Fairview Heights attorney Tom Rich was the lawyer for all seven cases denied by the new arbitrators, and also represented most of the Menard repetitive trauma claims that have been filed since Jan. 1, He could not be reached Wednesday. The main reason given by three new arbitrators for denying the seven Menard claims is that the petitioners should have been aware at least three years before filing a claim that their symptoms of numbness and tingling, typical of carpal tunnel syndrome, and pain sometimes associated with cubital tunnel syndrome of the elbow, were caused by their jobs. By not filing until more than three years after they said their symptoms began, their claims could be denied. They are turning back the tunnels of Illinois, " said Chicago attorney Gene Keefe, a longtime critic of Illinois workers compensation system. In the hundreds of previous Menard cases, the so-called accident or manifestation date was almost always considered to be the day when a physician examined a claimant and determined that the injury was work-related. Under Illinois causation law, a claim can be approved if there is only the possibility that work conditions could have aggravated an existing condition. At least two of the seven cases were denied based partly on the arbitrator s finding that the medical claims were inconsistent. A former prison clerk, who waited until almost three years after she retired to get a medical test and later testified that her carpal tunnel got worse in retirement, was denied. A former guard, promoted to food supervisor who still works at the prison in Chester, was denied when an arbitrator discounted the written opinions of two physicians. Frank A. Sommario, a Chicago attorney and vice president of the Workers Compensation Lawyers Association Ltd., whose members represent plaintiffs and respondents, said the lawyers for the attorney general who represent the taxpayers should have tried harder on the earlier cases. E-11

56 Had they done IMEs (independent medical exams) or had they defended these claims in a dutiful way instead of just wasting taxpayers money, then we wouldn t be in this predicament, he said. Sommario said by IME he meant an examination conducted for a case involving a single claimant. Bauer, the spokeswoman for Madigan, said the attorney general s office did support and utilize at least two overall studies of the Menard prison, which showed that the duties of a guard did not cause carpal or cubital tunnel syndrome. She said they have regularly been used to defend individual cases. As we have always done, we will continue to vigorously defend the state in these cases, she said. However, one of the independent investigations, conducted by Missouri hand surgeon Dr. Anthony Sudekum in March 2011 at the prison, has actually been used by plaintiffs attorneys. While Sudekum reported that the duties of a Menard guard were performed at a leisurely and unhurried pace, and did not cause repetitive trauma, he concluded that this kind of work could possibly aggravate an existing condition. Under Illinois law, aggravation can be enough for a claim. Sommario disagreed with the new arbitrators interpretation of when the three-year filing period begins. In repetitive trauma cases, the manifestation date is usually the date the doctor advises the petitioner his diagnosis is related to the work activities, he said, I believe there is case law on this. Contact reporters George Pawlaczyk at gpawlaczyk@bnd.com and [618-] , and Beth Hundsdorfer at bhundsdorfer@bnd.com and [618-] Belleville News-Democrat and news service sources. All Rights Reserved. (This article was reproduced with permission from the Belleville News-Democrat, Copyright 2012) E-12

57 Kevin J. Luther - Partner Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has practiced in the Rockford office since it opened in He supervises the workers compensation, employment law, and employer liability practice groups in the firm s Rockford and Chicago offices. He is the immediate past chair of the firm s statewide workers compensation practice group. Kevin concentrates his practice in the areas of workers compensation, employment law, and employer liability. He has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims. He has also tried numerous liability cases to jury verdict. Kevin has co-authored a book with Bruce Bonds of the firm's Urbana office entitled Illinois Workers' Compensation Law, Edition, which was published by West. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. The Second Edition of this treatise is due for publication in the Spring of He has also authored a law review article on Illinois employment law. Kevin is a frequent speaker to industry and legal professional groups. Kevin is a member of the Winnebago County Bar Association in its workers' compensation and trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel, formerly on the Board of Directors. Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp. - Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim. Richard Urbanski v. Deichmueller Construction Co. - Defined jurisdictional issue in workers' compensation review. Publications Co-author, "Survey of Illinois Law: Employment Law," Southern Illinois University Law Journal (2010) Co-author, Illinois Workers Compensation Law, ed. (Vol. 27, Illinois Practice Series), published by West (2009) Co-author, "Economic Disability and Earning Capacity: A Historical Analysis for Wage Differential Claims," Illinois Defense Counsel Quarterly Monograph (2006) Public Speaking A Program on the Extent to Which Employers May Monitor/Restrict Employees St. Mary s Occupational Health & Wellness (2012) Workers Compensation, HIPAA and Employment Retaliatory Discharge Issues St. Mary s Occupational Health & Wellness (2011) Workers Comp Reform - What Does it Mean to You? Williams Manny (2011) Workers Compensation Case Law Update Winnebago County Bar Association (2011) Professional Recognition Martindale-Hubbell AV rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and Central Districts of Illinois United States Court of Appeals, Seventh Circuit Education Juris Doctorate, Washington University School of Law, 1984 Bachelor of Arts-Economics and Mathematics (Summa Cum Laude), Blackburn University, 1981 E-13 Learn more about our speakers at

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59 MEDICAL BILLING AND TREATMENT UNDER THE 2011 AMENDMENTS: EITHER UR OR UR NOT! Presented and Prepared by: Toney J. Tomaso Urbana, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen F-1

60 MEDICAL BILLING AND TREATMENT UNDER THE 2011 AMENDMENTS: EITHER UR OR UR NOT! I. A HISTORY OF UTILIZATION REVIEW IN ILLINOIS... F-3 II. HOW DOES UTILIZATION REVIEW WORK... F-3 III. WHAT DOES THE NEW UTILIZATION REVIEW STATUTE SAY:... F-5 IV VS. 2011, WHAT ARE THE CHANGES:... F-9 V. HOW DOES THE NEW STATUTE WORK:... F-9 VI. VII. VIII. IX. THE CHAIRMAN S INTERPRETATION OF THE 2011 CHANGES...F-10 WHO HAS THE BURDEN OF PROOF...F-11 CAN AN EMPLOYEE OBJECT TO MY UTILIZATION REVIEW REPORT...F-12 TO UR, OR NOT TO UR...F-13 X. DOES THIS MEAN NO MORE IME S...F-13 XI. PRACTICAL IMPLICATIONS WITH UTILIZATION REVIEW...F-14 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. F-2

61 MEDICAL BILLING AND TREATMENT UNDER THE 2011 AMENDMENTS: EITHER UR OR UR NOT! I. A HISTORY OF UTILIZATION REVIEW IN ILLINOIS Historically speaking, the concept of Utilization Review is not new. However, it is still relatively new in the State of Illinois and to the Illinois Workers Compensation Act. It was introduced in the 2005 amendment to the Illinois Workers Compensation Act (820 ILCS 305/8.7). Between 2005 and 2011, there was a significant learning curve to the use of Utilization Review (U.R.), for practitioners and insurance adjusters working within the State of Illinois. Many states outside of Illinois have been using Utilization Review for quite some time. Therefore, some readers of this material will have much more experience and a greater depth of knowledge with regard to Utilization Review in comparison to their counterparts, who only practice within the boundaries of the State of Illinois. A Utilization Review is an extension of the controls placed upon fee schedules, which were put into place to deal with the issue of cost control for reasonable and necessary medical treatment. If you have one (a medical fee schedule) without the other (Utilization Review), then both will be completely ineffective. The ways around each would be easily achieved by medical providers and facilities. Let s turn to an example in order to illustrate the point. If the Medical Fee Schedule takes a $100 doctor visit and controls the cost based upon a reasonable scale whereinafter a fee schedule review is completed, the cost of that $100 visit is lowered to $50, one would assume that would protect the costs involved for purposes of standardized treatment. However, in order to effectuate this cost savings, Utilization Review needs to be coupled with the fee schedule reduction or else you lose the benefit of that cost control. Continuing on with our example, if a medical provider learns that their bill is going to be cut in half based upon the fee schedule, then they may combat this by requiring the patient to undergo two visits at $50 each. This would make up the monetary loss that the provider suffered as a result of the fee schedule reduction. This course of action by the provider would circumvent the system and eliminate any cost savings, the general purpose behind the fee schedule to begin with. Again, as noted above, having one without the other would defeat the purpose of having controls in place. II. HOW DOES UTILIZATION REVIEW WORK The Utilization Review process is governed by URAC (Utilization Review Accreditation Commission). Let s discuss how this process actually works. In a typical circumstance, a treating physician will render an opinion as to the need for treatment concerning an injured worker. You make the decision to move forward with a Utilization Review, and the process begins. A registered nurse hired through your third party vendor handling the Utilization Review process will review all pertinent medical records. Please be aware, the review can only contain medical records which the treating physician reviewed and had access to in determining whether or not this form of treatment would be reasonable and necessary. If the review takes place months or years later for a retrospective review, updated medical records cannot be utilized to render an opinion above and beyond what the original physician had access to at the time. You must F-3

62 review the materials from an equal footing to that which the treating physician had at the time they rendered an opinion. If the registered nurse agrees with the doctor s opinion regarding future treatment, then the Utilization Review process stops, the treatment as recommended is certified, and ultimately the injured worker will move forward with that treatment if that is their choice. If the registered nurse disagrees with this course of treatment, then the Utilization Review process continues. The next step is the review of the materials by a medical provider from the same specialty as the physician who rendered an opinion as to what treatment was reasonable and necessary. If the Utilization Review expert/physician agrees with the treatment, then the Utilization Review process ends and the treatment is certified. If that physician/expert disagrees with the treatment prescribed, then the Utilization Review process continues to the next step, which is the appeal process. The appeal process is an important step for Utilization Review purposes, and a step where clear communication is needed to obtain a valid and beneficial report. At this point, the treatment provider and the Utilization Review provider/expert must communicate, usually within a set amount of days, in order to discuss the proposed treatment and the non-certification of same. The specific case involving the injured worker is discussed and an agreement is to be reached between these two physicians as to what would be a reasonable course of treatment at this time for the patient. If no such agreement can be reached, then a third Utilization Review provider gets involved with the case by reviewing the pertinent materials and making a decision. Under URAC standards, the third reviewer s opinion is dispositive and the process will stop there. Once the appeal process is ended, you can then rely upon the opinions contained therein. The burden will shift to the employee and you can utilize the Utilization Review report to defend this case and argue what is reasonable and necessary treatment in favor of the employer. One of the key elements to a good Utilization Review process is communication. Communication is what allows for a clear understanding of the issues in question and ultimately will allow for a fair and equitable decision to be made. When you boil it down to its simplest terms, when you have more than one mind trying to identify what is best for a patient, it is always more helpful than just simply having one mind (or one physician) issuing an opinion on this subject. This does not always happen between the reviewing physician who is handling the Utilization Review process and the physician who is treating the employee. Many doctors do not like to be questioned regarding their treatment plan and recommendations for their patients. Their willingness to cooperate in the process is sometimes compromised by ego. Many physicians will admit, however, that URAC standards are universal and unless the specific facts of the individual cases being dealt with take the case and the employee s need for additional care and treatment outside the realm of normal, the URAC standards are reasonable. Utilization Review is a national standardized method of determining what is reasonable and necessary treatment, based upon a particular set of facts. One might say every set of facts is unique, but in workers compensation cases there are many patterns that have the same nucleus of common elements that help provide standards by which the Utilization Review process can F-4

63 be established and developed. Utilization Review was developed in order to create a set of standards that is nationally recognized in order to control the amount of treatment and testing conducted by the providers in any given situation. Going back once again to our example above, the Utilization Review process would be used in order to determine if the reasonable and necessary treatment for that patient can be provided in one treatment visit or would it be reasonable to allow an additional visit. If more than one visit is recommended, then a determination will be made as to how many visits would be reasonable. If we did not have Utilization Review to serve as the support mechanism behind our medical fee schedule, then we would not see any cost savings because the marketplace would simply allow the providers to schedule additional treatment and billing opportunities. The obvious question is, why would this be important? As has been discussed, the 2011 amendments were clearly driven by the costs associated with the workers compensation system that was in place in the State of Illinois. The voices of businesses, insurance companies, and the defense bar became extraordinarily loud and focused on how workers compensation costs were becoming intolerable and how it was negatively impacting the ability to run a business in the State of Illinois. There was ample proof that businesses were relocating outside of the State of Illinois in order to afford themselves the protections of more beneficial workers compensation laws and realize a monetary benefit for their companies. Although the statute defines what Utilization Review means, it might be helpful to think of Utilization Review as a way to determine what treatment is reasonable and necessary under the specific factual circumstances of your case. You can have Utilization Review conducted for treatment that has already taken place (retrospective) or for treatment that is being recommended by a treating physician (prospective). Therefore, if the facts of your case warrant questions as to the prior treatment, or plans for future treatment, set forth by a treating physician on behalf of an injured worker, then moving forward with Utilization Review is an appropriate course of action (and as will be discussed below, a necessary course of action). III. WHAT DOES THE NEW UTILIZATION REVIEW STATUTE SAY: Let s analyze the recent changes to the Utilization Review section of the new Act, which went into effect on September 1, The statute, 820 ILCS 305/8.7, reads as follows: Section 8.7. Utilization review programs. (a) As used in this Section: "Utilization review" means the evaluation of proposed or provided health care services to determine the appropriateness of both the level of health care services medically necessary and the quality of health care services provided to a patient, including evaluation of their efficiency, efficacy, and appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. The evaluation must be accomplished by means of a system that identifies the utilization of health care services based on standards of care of nationally F-5

64 recognized peer review guidelines as well as nationally recognized treatment guidelines and evidence-based medicine based upon standards as provided in this Act. Utilization techniques may include prospective review, second opinions, concurrent review, discharge planning, peer review, independent medical examinations, and retrospective review (for purposes of this sentence, retrospective review shall be applicable to services rendered on or after July 20, 2005). Nothing in this Section applies to prospective review of necessary first aid or emergency treatment. (b) No person may conduct a utilization review program for workers' compensation services in this State unless once every 2 years the person registers the utilization review program with the Department of Insurance and certifies compliance with the Workers' Compensation Utilization Management standards or Health Utilization Management Standards of URAC sufficient to achieve URAC accreditation or submits evidence of accreditation by URAC for its Workers' Compensation Utilization Management Standards or Health Utilization Management Standards. Nothing in this Act shall be construed to require an employer or insurer or its subcontractors to become URAC accredited. (c) In addition, the Director of Insurance may certify alternative utilization review standards of national accreditation organizations or entities in order for plans to comply with this Section. Any alternative utilization review standards shall meet or exceed those standards required under subsection (b). (d) This registration shall include submission of all of the following information regarding utilization review program activities: (1) The name, address, and telephone number of the utilization review programs. (2) The organization and governing structure of the utilization review programs. (3) The number of lives for which utilization review is conducted by each utilization review program. (4) Hours of operation of each utilization review program. (5) Description of the grievance process for each utilization review program. (6) Number of covered lives for which utilization review was conducted for the previous calendar year for each utilization review program. (7) Written policies and procedures for protecting confidential information according to applicable State and federal laws for each utilization review program. (e) A utilization review program shall have written procedures to ensure that patient-specific information obtained during the process of utilization review will be: (1) kept confidential in accordance with applicable State and federal laws; and F-6

65 (2) shared only with the employee, the employee's designee, and the employee's health care provider, and those who are authorized by law to receive the information. Summary data shall not be considered confidential if it does not provide information to allow identification of individual patients or health care providers. Only a health care professional may make determinations regarding the medical necessity of health care services during the course of utilization review. When making retrospective reviews, utilization review programs shall base reviews solely on the medical information available to the attending physician or ordering provider at the time the health care services were provided. (f) If the Department of Insurance finds that a utilization review program is not in compliance with this Section, the Department shall issue a corrective action plan and allow a reasonable amount of time for compliance with the plan. If the utilization review program does not come into compliance, the Department may issue a cease and desist order. Before issuing a cease and desist order under this Section, the Department shall provide the utilization review program with a written notice of the reasons for the order and allow a reasonable amount of time to supply additional information demonstrating compliance with the requirements of this Section and to request a hearing. The hearing notice shall be sent by certified mail, return receipt requested, and the hearing shall be conducted in accordance with the Illinois Administrative Procedure Act. (g) A utilization review program subject to a corrective action may continue to conduct business until a final decision has been issued by the Department. (h) The Department of Insurance may by rule establish a registration fee for each person conducting a utilization review program. (i) Upon receipt of written notice that the employer or the employer's agent or insurer wishes to invoke the utilization review process, the provider of medical, surgical, or hospital services shall submit to the utilization review, following accredited procedural guidelines. (1) The provider shall make reasonable efforts to provide timely and complete reports of clinical information needed to support a request for treatment. If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable nor collectible by the provider or claimant from the employer, the employer's agent, or the employee. The reporting obligations of providers shall not be unreasonable or unduly burdensome. (2) Written notice of utilization review decisions, including the clinical rationale for certification or non-certification and references to applicable standards of care or evidence-based medical guidelines, shall be furnished to the provider and employee. F-7

66 (3) An employer may only deny payment of or refuse to authorize payment of medical services rendered or proposed to be rendered on the grounds that the extent and scope of medical treatment is excessive and unnecessary in compliance with an accredited utilization review program under this Section. (4) When a payment for medical services has been denied or not authorized by an employer or when authorization for medical services is denied pursuant to utilization review, the employee has the burden of proof to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the utilization review pursuant to subsection (a) is reasonably required to cure or relieve the effects of his or her injury. (5) The medical professional responsible for review in the final stage of utilization review or appeal must be available in this State for interview or deposition; or must be available for deposition by telephone, video conference, or other remote electronic means. A medical professional who works or resides in this State or outside of this State may comply with this requirement by making himself or herself available for an interview or deposition in person or by making himself or herself available by telephone, video conference, or other remote electronic means. The remote interview or deposition shall be conducted in a fair, open, and cost-effective manner. The expense of interview and the deposition method shall be paid by the employer. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties. Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition. Nothing shall prohibit any party from being with the deponent during the deposition, at that party's expense; provided, however, that a party attending a deposition shall give written notice of that party's intention to appear at the deposition to all other parties within a reasonable time prior to the deposition. An admissible utilization review shall be considered by the Commission, along with all other evidence and in the same manner as all other evidence, and must be addressed along with all other evidence in the determination of the reasonableness and necessity of the medical bills or treatment. Nothing in this Section shall be construed to diminish the rights of employees to reasonable and necessary medical treatment or employee choice of health care provider under Section 8(a) or the rights of employers to medical examinations under Section 12. (j) When an employer denies payment of or refuses to authorize payment of first aid, medical, surgical, or hospital services under Section 8(a) of this Act, if that denial or refusal to authorize complies with a utilization review program F-8

67 registered under this Section and complies with all other requirements of this Section, then there shall be a rebuttable presumption that the employer shall not be responsible for payment of additional compensation pursuant to Section 19(k) of this Act and if that denial or refusal to authorize does not comply with a utilization review program registered under this Section and does not comply with all other requirements of this Section, then that will be considered by the Commission, along with all other evidence and in the same manner as all other evidence, in the determination of whether the employer may be responsible for the payment of additional compensation pursuant to Section 19(k) of this Act. The changes to this Section made by this amendatory Act of the 97th General Assembly apply only to health care services provided or proposed to be provided on or after September 1, (Source: P.A , eff ; , eff. 11/16/05; P.A , eff ) IV VS. 2011, WHAT ARE THE CHANGES: In comparing the original version of the Utilization Review section of the Act (amended November 26, 2005) to the most recent amendment, there are not significant changes to the actual wording of the statute. There is only one section which was substantively changed, and that is subsection (i). Therefore, our focus will turn to this section. We will discuss general concepts as it relates to everyday practice and procedure utilizing the power of Utilization Review. V. HOW DOES THE NEW STATUTE WORK: The medical provider, upon receiving written notification from the employer, employer s agent, or insurance carrier invoking the Utilization Review process, must submit to Utilization Review and follow accredited procedural guidelines including: Provider shall make reasonable efforts to provide timely and complete reports of clinical information; If the provider fails to make such reasonable efforts, the charges for the treatment or service may not be compensable or collectible by the provider or employee from the employer, the employer s agent, or the employee; The reporting obligations of these providers shall not be unreasonable or unduly burdensome; and Once a Utilization Review has been done and findings are made (certification or noncertification of treatment), said decisions, including the clinical rationale, shall be furnished to the provider and employee (it would also be our recommendation to provide these findings to the employee s attorney if he has counsel of record). F-9

68 VI. THE CHAIRMAN S INTERPRETATION OF THE 2011 CHANGES This next section is the most important aspect to the changes in Section 8.7(i)(3). The statute as it reads limits an employer from denying payment of medical services (rendered or proposed to be rendered) based upon an accredited Utilization Review opinion. Meaning, if you, the employer, are going to question whether the medical treatment as previously undertaken or proposed is unreasonable or unnecessary, you will need to have that proven through the use of the Utilization Review process. You can no longer simply rely upon an IME or records review opinion from a physician. The statute, when strictly interpreted, only allows for a Utilization Review to deny medical treatment. We recently met with Mitch Weisz, Chairman of the Illinois Workers Compensation Commission and several other attorneys to discuss the topic of Utilization Review. It was the Chairman s position that this statute should be strictly interpreted (and it is our understanding he has passed along this directive to his commissioners and arbitrators). He wants all interested parties, when reading this section of the statute, to understand Utilization Review should be the only vehicle by which an argument can be made as to whether a course of treatment, or prior course of treatment, is reasonable and necessary under the factual circumstances of an individual case. One must be wary of an employee s attorney using this as a gotcha situation during the course of handling a claim. Beware of the employee s attorney who has no objection to your IME/records review opinion report that renders favorable opinions to your position on what would be considered reasonable and necessary medical treatment. At the time of trial this same attorney may object to the foundation of those opinions, arguing that an accredited Utilization Review was never conducted and therefore, any opinions regarding reasonable and necessary medical treatment by any employer-retained expert should be stricken. The arbitrators and/or commissioners, if they follow the instructions of the Chairman correctly, would have to sustain such an objection made by the employee s attorney, and strike the expert opinions the employer is attempting to rely upon as previously disclosed. This is exactly the situation any good employer s attorney would want to avoid, and this is an obvious pitfall to be cognizant and aware of in the future. Based upon this interpretation of the statute, one might conclude this is a major victory for the third parties which conduct Utilization Reviews. Generally speaking, when conducting independent medical examinations pursuant to Section 12 of the Act, one would typically spend $1,000 to $2,000 on an expert opinion, depending upon the physician who was asked to perform the work on behalf of the employer. If the purpose of your IME/records review was to make a determination regarding what would be considered reasonable and necessary medical treatment, then you should properly be seeking a Utilization Review opinion. Utilization Review opinions can be provided for a fee ranging between $300 and $600. This range will depend upon the extent of the medical records necessary to review. By and large, Utilization Review opinions can be obtained rather quickly in comparison to their IME counter-parts. As we all know, setting up an IME with a highly regarded physician, coordinating that appointment with the employee, and then actually getting your hands on that report can take anywhere between F-10

69 two and three months, if not longer, under normal circumstances. Utilization Review reports can typically be obtained (assuming the medical reports are available for review) within a couple of weeks. You can see how monies, which would typically go into an IME specialist s pocket for purposes of having an expert report obtained, are being taken out of that pocket and placed squarely into the coffers of third party Utilization Review experts. VII. WHO HAS THE BURDEN OF PROOF The other significant change which came about as a result of the recent amendments was the burden of proof for the Utilization Review reports. If a payment for medical services has been denied, or a request for medical treatment non-certified by an employer following a Utilization Review, then the burden of proof will shift to the employee to show by a preponderance of the evidence that a variance from the standards of care used by the person or entity performing the Utilization Review... is reasonably required to cure or relieve the effects of his or her injury. 820 ILCS 305/8.7(i)(4). Meaning, the burden shifts to the employee once the employer provides a Utilization Review report which denies the treatment is reasonable and necessary. At this point, it is up to the employee and his treatment provider or physician to establish why his specific factual circumstance is outside the realm of normal, therefore making the additional care and treatment undertaken by the provider (or proposed by the provider) reasonable and necessary. This burden shift is exactly what the employers bargained for during the course of the negotiations involving the most recent amendments to the Act. Previously, there was no such burden shifting when a valid Utilization Review report was obtained and disclosed by the employer. At our seminar in 2011, we discussed the latest results and case law concerning how effective Utilization Review had been for the employer. A majority of the cases clearly showed the arbitrator and/or commissioner considered the Utilization Review report, but disregarded it in favor of the treating physician s opinion as to what would be reasonable and necessary treatment. There were a select few cases wherein the Utilization Review report was heralded as the defining opinion as to what was reasonable and necessary, but those came in the form of cases dealing with chiropractic care, acupuncture, and physical therapy. The reality of Utilization Review following the 2005 amendment was that it was playing second fiddle to the treating physician s opinions regarding what treatment was required for the employee. Through the bargaining process, which brought about the 2011 amendments, teeth were put into the Utilization Review process. That comes in the form of the burden shifting the employee being required to overcome such a burden when a valid report is obtained and disclosed following a Utilization Review process. This beneficial change is something the employer should take advantage of at every turn. F-11

70 VIII. CAN AN EMPLOYEE OBJECT TO MY UTILIZATION REVIEW REPORT Once a Utilization Review report is disclosed which is favorable to the employer s position, it is still part of the discovery process in a workers compensation case. As you have probably heard many times before, there is no formal discovery process in workers compensation in the State of Illinois. However, the parties do have subpoena power and can collect medical records. Also, if an expert opinion is rendered regarding key issues such as accident, medical causal connection, or reasonable and necessary medical treatment, then a party has the right to object to that expert opinion in order to force the expert who rendered such an opinion to undergo cross examination at an evidence deposition. In the case of a Utilization Review report being disclosed, the employee s attorney has the right to object to the foundation of that report, thereby necessitating the evidence deposition of the physician who reviewed the medical evidence and issued the Utilization Review report. Pursuant to the new statutory language, the medical professional who was responsible for reviewing the records and issuing a Utilization Review opinion must be made available in the State of Illinois for a deposition (either in person, by telephone, videoconferencing, or other remote electronic means). This expense will be borne by the employer. Therefore, when you begin setting up the process of having a Utilization Review report/opinion obtained, you will want to identify who will be the reviewing physician, where their office is located, and confirm that they will be made available within the State of Illinois pursuant to the terms of the statute. At the very least, you need to make this defense expert aware of what the statute states and what obligations he will be forced to comply with if an objection to the foundation is made by the employee s attorney. If that Utilization Review expert will not travel to the State of Illinois, nor will they agree to conduct a deposition by phone or other electronic means, then you will not want to retain their services for that project or in the future. This is something that you must be wary of as you continue to use Utilization Reviews to protect your clients. An accredited Utilization Review report which is relied upon by an employer at the time of trial in a workers compensation hearing is one piece of evidence in an otherwise giant puzzle which needs to be put together by an arbitrator after all the evidence is heard. Meaning, the Utilization Review report will be considered along with all other admissible pieces of evidence in determining the reasonableness and necessity of medical bills and/or treatment. Nothing within Section 8.7 diminishes the employee s right to reasonable and necessary medical treatment or his choice of health care pursuant to Section 8(a) of the Act. If an employer reasonably relies upon a Utilization Review report from an accredited medical expert, and the necessary protocols and procedures are followed by that medical expert, then there is a rebuttable presumption in favor of the employer, regarding the reasonableness and necessity of the treatment, protecting the employer from penalty petitions. If an employee files a penalty petition pursuant to Section 19(k) of the Act, wherein they claim the employer was unreasonable or vexatious in their delay of payment of benefits, you will be protected from same if you have a Utilization Review report to rely upon in your defense against authorizing or payment of said medical benefits. The simple monetary advantage of spending at or around $500 on a Utilization Review report becomes readily apparent when it can be used as a shield to F-12

71 protect your client from a 19(k) penalty petition, which can become quite costly even if you have a reasonable basis for disputing ongoing medical treatment. These penalty petitions, which employee s attorneys are so fond of filing as a way of rattling their swords, can be disarmed through the use of a Utilization Review report. Again, as noted above, if the arbitrators and commissioners follow the instructions of Chairman Weisz wherein Utilization Review is the only means by which an employer can dispute reasonable and necessary medical treatment, then failing to do so may in turn subject your client, the employer, to Section 19(k) penalties. IX. TO UR, OR NOT TO UR Under what circumstances should you decide to pursue and obtain a Utilization Review report? Some typical questions which you would want to have addressed, based upon the factual circumstances of your case, would include (but not be limited to) the following: How much physical therapy is appropriate, and how much would be considered excessive? What is a reasonable amount of chiropractic care/treatment when dealing with adjustments? Do the patient s symptoms warrant MRI testing at this time? Are epidural steroid injections reasonable and necessary at this time? Is the patient a surgical case at this time, or should conservative measures be continued? Here are some situations you deal with on a regular basis where Utilization Review would not be reasonable or necessary for defense handling purposes: Is the injured party s current medical condition causally related to the alleged accident? Is this a compensable workers compensation claim? Can the injured worker return to the work place, and if so, should that worker be placed on any restrictions? What is the diagnosis and prognosis for the injured worker? X. DOES THIS MEAN NO MORE IME S It may be helpful once you have your Utilization Review report in place to also have your IME expert take it (Utilization Review report) into consideration during their review of the medical records. You may have more than one defense to present during the course of the litigated claim. Therefore, your Utilization Review report can be relied upon by other experts and your IME specialist can add to the credibility of your Utilization Review physician who reviewed the records by agreeing with the findings and adding some additional weight and credibility to those opinions. This would be characterized as a belts and suspenders approach, but as we all F-13

72 know, this never hurts in increasing our chances of prevailing with our defenses. You may want to take a conservative approach when asking your IME expert s opinion as to whether or not he agrees with the Utilization Review report findings. Meaning, if you already have a beneficial Utilization Review report, you do not want to potentially circumvent it by having your IME expert provide contradictory findings. Therefore, it might be advisable to request a records review opinion from your IME expert. Then, if there is a contradiction in findings on the subject matter which was dealt with in the Utilization Review report, you do not have an obligation to disclose your records review opinion. It is only at the time you receive a consistent finding from your IME expert conducting the records review that you can disclose it in order to lend credence and support to your Utilization Review report. In that same vein, if you are dealing with a case today wherein you have a beneficial IME opinion which outlines what would be reasonable and necessary medical treatment that clearly contradicts what the employee s treating physician is doing (or has done), it would be our recommendation to get a Utilization Review report to comply with the statute as noted above and also bolster the defense you have asserted and established based upon the IME opinions. XI. PRACTICAL IMPLICATIONS WITH UTILIZATION REVIEW Although a Utilization Review report is not dispositive in and of itself, the obvious benefit of obtaining such a report is that the burden will shift in favor of the employer. As noted above, that burden shift places a rather heavy burden on the employee to obtain an opinion report from his treating physician which asserts why the Utilization Review report de-certified the need for additional treatment. Do not underestimate the power of shifting the burden. For too many years that burden has clearly been on the employer. Now, with the changes in the 2011 amendment, we have some teeth that are finally going to allow the arbitrators and commissioners to rule in favor of the employers regarding what should be considered reasonable and necessary treatment. This should be one of your first lines of defense when dealing with this issue. Although we know our Utilization Review expert must make himself available in the State of Illinois for a deposition (either in person or by phone), this in and of itself should not be detrimental or a reason why you avoid obtaining such a report. It is becoming commonplace for doctors to have their evidence depositions conducted by phone or other electronic means. Employees attorneys may attempt to push you into not obtaining and using Utilization Review reports because they object on a regular basis to these reports. Do not be adversely affected by this obvious tactic to force you into using this defense mechanism less and less as time goes on. Do not allow them to bully you into giving up this statutory right, which is of excellent benefit to the employers. A great deal of time and effort was placed into negotiating this aspect of the Act and to avoid using it because some employee s attorney is going to force you to take a deposition is not a good reason to avoid using this statute. We need to establish right here and right now, the use of Utilization Review and its importance in defending claims so that for today and tomorrow, this vehicle, in order to call into question reasonable and necessary medical F-14

73 treatment, is something available to you and accepted by the arbitrators and commissioners on a regular basis. We are on the forefront of educating arbitrators and commissioners in the State of Illinois as to the usefulness of a Utilization Review and the URAC standards by which they are measured. This is an excellent opportunity to explain to the arbitrators and commissioners precisely what these standards are, why they have been in place for so many years in other states, and the obvious benefit these standardized practices have as they are applied in our everyday handling of claims in the State of Illinois. If we simply ignore this opportunity, then the arbitrators and commissioners will simply go on conducting business as usual and allowing the treating physician to dictate what is reasonable and necessary for the injured worker. A better plan of action is to call into question this treatment plan if it deviates from the normal course. If you are dealing with an exceptional case wherein a deviation from the normal course is understandable, then the process will allow for such a circumstance. However, do not let your claimant take advantage of you and your client. Stand your ground; use the statute which was brought about and negotiated for to your benefit. I believe it is essential that we begin the process of educating these arbitrators and commissioners as to why these standardized procedures are in place through URAC in order to show why the Utilization Review experts are even more credible than their treating physician counterparts. Now is the time to seize the day and take advantage of the statutory amendment providing us with a powerful tool in the form of Utilization Review. F-15

74 Toney J. Tomaso - Partner Toney is a partner in the Urbana office who concentrates his practice in the areas of workers' compensation, third-party defense of employers, asbestos class action litigation, insurance coverage issues and automobile liability claims. Toney has successfully defended hundreds of workers' compensation claims before various arbitrators throughout the State of Illinois, as well as before all panels of the Illinois Workers' Compensation Commission. Toney was a member of a three attorney trial team which handled a class action lawsuit arising out of a medical malpractice class action which lasted approximately eight weeks in East Central Illinois. During the course of this litigation, he was required to depose approximately one-half of the class, prepare defense experts, and participate in all phases of the eight-week trial. Professional Associations Champaign County Bar Association Illinois State Bar Association American Bar Association Will County Bar Association Illinois Trial Lawyers Association Illinois Association of Defense Trial Counsel Court Admissions State Courts of Illinois United States District Court, Central District of Illinois Education Juris Doctor, Louisiana State University, 1995 Bachelor of Arts (Golden Key Honor Society), University of Illinois, 1992 Significant Cases Land v. Montgomery - Eight week medical malpractice class action lawsuit. Public Speaking Case Study: Respondent Attorney Trial Strategy Perspective SafeWorks Illinois 17th Annual Work Injury Conference, Champaign, IL (2009) Workers Compensation Law Update Lorman Seminar (2008) Arising Out of Issue Do They Really Have All the Facts They Need Heyl Royster (2008) Recent Developments In Workers Compensation Risk and Insurance Management Society (2007) F-16 Learn more about our speakers at

75 WHAT S OLD IS NEW AGAIN. PROSECUTING WORKERS COMPENSATION FRAUD UNDER THE 2011 AMENDMENTS Presented and Prepared by: William M. Blumthal, Jr. Supervisor, Workers' Compensation Fraud Unit Illinois Department of Insurance Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen G-1

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77 New Tools for Combating Workers Compensation Fraud Enhanced Enforcement Efforts Under the Recent Reforms William M. Blumthal, Jr. Deputy Director Illinois Department of Insurance Workers Compensation Fraud Overview New Offense Enhanced Sentencing Provisions Enhanced Subpoena Power Changes to Notice Requirements Removal of 120 Day Requirement FRAUD BY MEDICAL PROVIDERS Billing for services NOT rendered G-2

78 820 ILCS 305/25.5(a) (9) (a) It is unlawful for any person, company, corporation, insurance carrier, healthcare provider, or other entity to: (9) Intentionally present a bill or statement for the payment of medical services that were not provided. 820 ILCS 305/25.5(a)(9) What this means... Medical providers who bill for services that are not provided can be charged under Section What this does not mean... Medical providers who bill a service at more than the statutory guidelines allow for can be charged under Section 25.5 Medical providers who bill a service at more than the usual and customary rate can be charged under Section 25.5 ENHANCED SENTENCING PROVISIONS 820 ILCS 305/25.5(b) G-3

79 Pre Reform Sentencing Under 820 ILCS 305/25.5(b) (b) Any person violating subsection (a) is guilty of a Class 4 felony. Any person convicted of any violation of this Section shall be ordered to pay complete restitution any person or entity so defrauded in addition to any fine or sentence imposed as a result of the conviction. Enhanced Sentencing Under 820 ILCS 305/25.5(b) (b) Sentences for violations for subsection (a) are as follows: (1) A violation in which the value of the property obtained or attempted to be obtained is $300 or less is a Class A misdemeanor. (2) A violation in which the value of the property obtained or attempted to be obtained is more than $300 but not more than $10,000 is a Class 3 felony. (3) A violation in which the value of the property obtained or attempted to be obtained is more than $10,000 but not more than $100,000 is a Class 2 felony. (4) A violation in which the value of the property obtained or attempted to be obtained is more than $100,000 is a Class 1 felony. Enhanced Sentencing Under 820 ILCS 305/25.5(b) (b) Sentences for violations for subsection (a) are as follows: (5) A person convicted under this Section shall be ordered to pay monetary restitution to the insurance company or self insured entity or any other person for any financial loss sustained as a result ofa violation of this Section, including any court costs and attorney fees. An order of restitution also includes expenses incurred and paid by the State of Illinois or an insurance company or self insured entity in connection with any medical evaluation or treatment services. G-4

80 Illinois Sentencing Generally (730 ILCS 5/ ) Misdemeanors: Felonies: Class A Murder Class B Class X Class C Class 1 Class 2 Class 3 Class 4 Relevant Sentencing Provisions (730 ILCS 5/ et. seq.) Class 4 Felony Previously imposed for all violations of subsection (a) Punishable by: 1 3 years in prison Periodic Imprisonment Impact Incarceration (Boot Camp) Probation / Conditional Discharge Fine up to $25,000 Relevant Sentencing Provisions Class A Misdemeanor Now possible for violations of subsection (a) in which the value is less than $300 Punishable by: Up to one (1) year in jail Impact Incarceration (Boot Camp) Periodic Imprisonment Electronic Home Detention Probation / Conditional Discharge Supervision Fine up to $2,500 G-5

81 Relevant Sentencing Provisions Class 3 Felony Now possible for violations of subsection (a) in which the value is $300 $10,000 Punishable by: 2 5 years in prison Periodic Imprisonment Impact Incarceration (Boot Camp) Probation / Conditional Discharge Fine up to $25,000 Forgery is also a Class 3 felony Relevant Sentencing Provisions Class 2 Felony Now possible for violations of subsection (a) in which the value is $10,000 $100,000 Punishable by: 3 7 years in prison Periodic Imprisonment Impact Incarceration (Boot Camp) Probation / Conditional Discharge Fine up to $25,000 Relevant Sentencing Provisions Class 1 Felony Now possible for violations of subsection (a) in which the value is more than $100,000 Punishable by: 4 15 years in prison Periodic Imprisonment Impact Incarceration (Boot Camp) Probation / Conditional Discharge Fine up to $25,000 G-6

82 Relevant Sentencing Provisions Class X Felony Not specifically mentioned in 25.5(b) Possible for offenders who are sentenced for a Class 1 or Class 2 felony violation of subsection (a) AND the offender has 2 prior Class 2 or greater felonies in his or her background Punishable by: 6 30 years in prison Fine up to $25,000 *This will likely be exceedingly rare, as employers are not generally hiring people with 2 prior Class 2 or greater felonies How do the new sentencing guidelines help? Attempt = Completed Offense Restitution explicitly includes Court Costs, Attorney Feesand MedicalCosts for Evaluation or Treatment Stiffer Penalties Greater interest from Prosecutors ENHANCED SUBPOENA POWER 820 ILCS 305/25.5(c) and 735 ILCS 5/8 802 G-7

83 Enhanced Subpoena Power Under 820 ILCS 305/25.5(c) (c)... With respect to the subject of any investigation being conducted, the fraud and insurance non compliance unit shall have the general power of subpoena of the Department of Insurance, including the authority to issue a subpoena to a medical provider, pursuant to section of the Code of Civil Procedure. Physician and Patient Privilege 735 ILCS 5/ Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, or in case of his or her death or disability, of his or her personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his or her life, health, or physical condition, or as authorized by Section , (4) in all actions brought by or against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administratorofhis of orher estate wherein the patient's physical ormentalcondition isanissue, issue, (5) upon an issue as to the validity of a document as a will of the patient, (6) in any criminal action where the charge is either first degree murder by abortion, attempted abortion or abortion, (7) in actions, civil or criminal, arising from the filing of a report in compliance with the Abused and Neglected Child Reporting Act, (8) to any department, agency, institution or facility which has custody of the patient pursuant to State statute or any court order of commitment, (9) in prosecutions where written results of blood alcohol tests are admissible pursuant to Section of the Illinois Vehicle Code, (10) in prosecutions where written results of blood alcohol tests are admissible under Section 5 11a of the Boat Registration and Safety Act, (11) in criminal actions arising from the filing of a report of suspected terrorist offense in compliance with Section 29D 10(p)(7) of the Criminal Code of 1961, or (12) upon the issuance of a subpoena pursuant to Section 38 of the Medical Practice Act of 1987; the issuance of a subpoena pursuant to Section 25.1 of the Illinois Dental Practice Act; the issuance of a subpoena pursuant to Section 22 of the Nursing Home Administrators Licensing and Disciplinary Act; or the issuance of a subpoena pursuant to Section 25.5 of the Workers' Compensation Act. Physician and Patient Privilege 735 ILCS 5/ Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, or in case of his or her death or disability, of his or her personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his or her life, health, or physical condition, or as authorized by Section , (4) in all actions brought by or against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administratorofhis of orher estate wherein the patient's physical ormentalcondition isanissue, issue, (5) upon an issue as to the validity of a document as a will of the patient, (6) in any criminal action where the charge is either first degree murder by abortion, attempted abortion or abortion, (7) in actions, civil or criminal, arising from the filing of a report in compliance with the Abused and Neglected Child Reporting Act, (8) to any department, agency, institution or facility which has custody of the patient pursuant to State statute or any court order of commitment, (9) in prosecutions where written results of blood alcohol tests are admissible pursuant to Section of the Illinois Vehicle Code, (10) in prosecutions where written results of blood alcohol tests are admissible under Section 5 11a of the Boat Registration and Safety Act, (11) in criminal actions arising from the filing of a report of suspected terrorist offense in compliance with Section 29D 10(p)(7) of the Criminal Code of 1961, or (12) upon the issuance of a subpoena pursuant to Section 38 of the Medical Practice Act of 1987; the issuance of a subpoena pursuant to Section 25.1 of the Illinois Dental Practice Act; the issuance of a subpoena pursuant to Section 22 of the Nursing Home Administrators Licensing and Disciplinary Act; or the issuance of a subpoena pursuant to Section 25.5 of the Workers' Compensation Act. 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84 What does that mean for us? Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except... [upon] the issuance of a subpoena pursuant to Section 25.5 of the Workers' Compensation Act. REMOVAL OF THE NOTICE REQUIREMENT Dear Mr. Smith, The Department of Insurance s Workers Compensation Fraud Unit has received a complaint from Michael Jones of 100 Main Street, Lombard, Illinois, alleging that you have committed workers compensation fraud... Notice of Investigation Prior to the recent amendments, employers and employees whose conduct was referred to the WCFU for investigation were entitled to notice of the referral (e)... Upon receipt of a report of fraud, the employee or employer shall receive immediate notice of the reported conduct, including the verified name and address of the complainant if that complainant is connected to the case and the nature of the reported conduct. G-9

85 Notice of Investigation Prior to the recent amendments, employers and employees whose conduct was referred to the WCFU for investigation were entitled to notice of the referral (e)... Upon receipt of a report of fraud, the employee or employer shall receive immediate notice of the reported conduct, including the verified name and address of the complainant if that complainant is connected to the case and the nature of the reported conduct. Practical Effects / Problems of Notice Potential targets were informed that an investigation was underway Surveillance was all but eliminated as an option in cases involving employee fraud The name and address of the person making the referral were made known to the target Removal of the Notice Requirement Allows for the person reporting the alleged fraud to remain unidentified unless and until a criminal prosecution is commenced Allows for the possibility of surveillance by insurance companies, SIUs, TPAs, and the WCFU Allows the WCFU to conduct an investigation without the target being made aware that a complaint has been filed G-10

86 REMOVAL OF 120 DAY REQUIREMENT Time s up... turn in your report Investigation Deadline Prior to the recent amendments, investigations were to be commenced and completed within 120 days of receipt of a complaint Reality of the 120 Day Requirement Clock started to run before the complaint was assigned for investigation Not all investigations are the same Many investigations simply cannot be completed that quickly Subpoena compliance took a significant portion of the 120 days allotted for investigation The number of cases referred to the WCFU made compliance with the 120 day requirement impossible Cases were not reviewed until they could be investigated in order to comply with the law G-11

87 Removal of the 120 Day Requirement Allows for more thorough investigations Allows for collection of all the relevant records Allows for better report writing Allows for more investigations to be open at any given time Gives us a better chance at a successful referral and prosecution HOW DOES THIS AFFECT ALL OF US? Curbing workers compensation fraud Empowerment Improves the likelihood that the general public will actually file a complaint + Provided investigators with more tools and removed limitations thathamperedinvestigations hampered + Provided prosecutors with more reason to charge cases involving workers compensation fraud, and gives them more leverage with regard to resolving cases arising under the Act G-12

88 What does this add up to? Convictions Fines Restitution Prison Sentences Chilling Effect WHAT DO WE NEED FROM YOU? Referring a case for investigation Workers Compensation Fraud Unit Mailing Address: 100 W. Randolph St. Suite Chicago, IL Hotline: (877) E mail: DOI.WorkCompFraud@illinois.gov Web Site: G-13

89 William M. Blumthal, Jr. Supervisor, Workers' Compensation Fraud Unit Illinois Department of Insurance Mr. Blumthal graduated from the University of Illinois in Urbana-Champaign in 2000 with a BA degree in Liberal Arts and Sciences. He went on to attend DePaul University's College of Law, graduating in 2003 with a Juris Doctor degree and a certificate in criminal law. After graduation, Mr. Blumthal began working for the Cook County State's Attorney's Office as an Assistant State's Attorney. During his time at the State's Attorney's Office, Mr. Blumthal worked in a number of different divisions, including Criminal Appeals, Traffic, Felony Review, Grand Jury, and the Felony Trial Division. In June of 2011, after nearly eight years with the Cook County State's Attorney's Office, Mr. Blumthal left to assume his current position at the Illinois Department of Insurance as Supervisor of the Workers' Compensation Fraud Unit. G-14

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91 2011 AMENDMENTS WRAP UP: SEIZING THE MOMENT AND THE MOMENTUM! Presented by: Craig S. Young Peoria, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen H-1

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93 Craig S. Young - Partner Craig is Chair of the firm's workers' compensation practice group. He began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in He has spent his entire career with Heyl Royster and became a partner in He is recognized as a leading workers' compensation defense lawyer in the State of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. Craig has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves as Chair of the Workers' Compensation Committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organizations and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Public Speaking Workers Compensation Reform in Illinois Presented in numerous locations (2012) Elements of a Winning Workers Compensation Program Downstate Illinois Occupational Safety & Health Day (2010) Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers Compensation Risk Control Workshop (2010) Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues Lorman Education Services (2008) The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement Lorman Education Services (2008) Medicare Set-Aside Agreements-The Rest of the Story Defense Research Institute (2007) Resolving (or Alleviating) the Chronic Pain Case Heyl, Royster, Voelker & Allen (2007) Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Peoria County Bar Association 2008 Distinguished Community Service Award Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Board Member and Secretary-Treasurer) Defense Research Institute (Workers' Compensation Committee - Chair) Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude), Bradley University, 1982 H-2 Learn more about our speakers at

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95 KIDS SAY THE DARNDEST THINGS EFFECTIVE CLAIMS INVESTIGATION USING SOCIAL MEDIA Presented and Prepared by: Stacie K. Hansen Peoria, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen I-1

96 KIDS SAY THE DARNDEST THINGS EFFECTIVE CLAIMS INVESTIGATION USING SOCIAL MEDIA I. TASKS FOR INSURERS... I-3 A. Search Tips and Tricks... I-4 B. Performing Ethical Searches... I-5 C. Securing and Preserving Information Obtained through Informal Discovery... I-6 II. ROLE OF INSUREDS... I-6 III. RESPONSIBILITIES FOR COUNSEL... I-7 A. Issuing Preservation/Retention Letters... I-8 B. Using Requests to Produce and Interrogatories to Access Information... I-8 C. Gaining Access to Deleted Accounts Through Written Discovery... I-9 D. Authorizations...I-10 E. Rules of Evidence...I-10 IV. CONCLUSION...I-12 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. I-2

97 KIDS SAY THE DARNDEST THINGS EFFECTIVE CLAIMS INVESTIGATION USING SOCIAL MEDIA During the week of March 13, 2010, Facebook was the number one traffic inducing website, beating out perpetual top dog Google. During that week, Facebook generated 7.07 percent of all web traffic while Google generated 7.03 percent. While only beating Google by a small margin, it shows how much Facebook is being used to search for content. Even more telling is the fact that Facebook had more than 845 million monthly active users at the end of December Of those, 483 million users were active daily users. Additionally, 425 million monthly active users access Facebook mobile products. These statistics show just how prevalent social media is in people s lives and why these sites can be a gold mine of information in litigation. By now, most people are familiar with what social networking is and how it works. Social networks are internet sites which provide a forum and opportunity for registered and nonregistered users to view information posted on those websites by various individuals and entities. The sites encourage users to share even the most mundane aspects of their daily lives. Sites such as Facebook are constantly changing and gaining additional access to various aspects of the user s life. For example, Facebook recently added the timeline feature. Facebook advertises timeline as a way to tell your life story through photos, friendships and personal milestones like graduating or traveling to new places. Additionally, Facebook has become integrated with other social networking sites and applications. For example, Facebook just purchased Instagram, a photo sharing website. Other applications now allow you to check yourself and other users into locations using GPS technology via your mobile phones. The integration of social media into our everyday lives makes it important to understand how these sites can be used in routine litigation strategy and discovery. Social media is not only useful in family and criminal litigation, but can influence personal injury, workers compensation, product liability, commercial litigation and employment cases. In order to properly use this technology, it is essential to understand how this can be used. Effective use of social media requires a unified effort between insurers, insured and counsel. Plaintiffs are now being counseled by their attorneys to avoid using social media and in some cases to delete their profiles entirely. Many attorneys are giving this advice during initial consultation, thus it becomes important to gather social media information as soon as possible after learning of a potential suit. Once you learn the plaintiff uses a social media website and has an accessible profile, it must be checked periodically throughout the litigation process. There is no specific rule of thumb on when to check these pages, but it will likely depend on the plaintiff s usage tendencies and the types of postings the plaintiff has made in the past. I. TASKS FOR INSURERS The first step in using social media evidence is for the carrier to commence discovery as early as possible in the litigation process. As soon as an adjuster becomes aware of a claim, it is I-3

98 beneficial to start the informal discovery process on social media websites. Informal discovery is factual research obtained without document requests, interrogatories, subpoenas, or depositions. Informal discovery can be conducted at any time, by anyone, and it is free. This type of discovery should begin as soon as a claim is reported. The search should not be limited to Facebook, but should also include search engines and other common social media pages. While counsel will likely need to conduct searches at other periods in the litigation process, adjusters should do the initial searches in the event the profile or information is deleted shortly thereafter. Practice Pointer: It is worth noting that plaintiffs can also use social media against defendants. Thus, adjusters should speak with defendants early in the claim process about the importance of not sharing information on these websites. A conversation of this nature will also likely occur between the defendant and counsel, but educating the defendant of the dangers as soon as possible can potentially avoid a problem. A. Search Tips and Tricks Sometimes gathering social media evidence is as simple as typing the plaintiff s name in the search box. However, as more individuals become aware of privacy settings it is increasingly difficult to gather information. There are some handy tricks and tips for gathering useful information without violating ethical rules. First, if a plaintiff does not have a profile, someone in their household probably does. If you do not have all of their names, conduct a search on or to identify the names of people in the household. Once you locate names, conduct social media searches for those individuals. Next, after you identify a plaintiff s page or a family member s page, do not stop your search after looking at their wall/timeline/tweet listing/page. Pay close attention to their photos, friend lists, and interests. Look at the plaintiff s photos, save any photos showing activities the plaintiff is doing. Make sure to check the date of when the photo was posted so you know whether it was pre- or post-injury. Also, take note of people who frequently appear in the photographs. Clearly, if an individual often appears in the photographs it is someone close to the plaintiff that interacts with them often. Check to see if these individuals are tagged in any of the photos. If they are, consider checking out their pages and their photographs for additional information about the plaintiff. Another recommendation is to see who frequently comments on the photographs or on the wall. Depending on the content of the posts, it may be sensible to check these people s profiles to see whether there is information on the plaintiff on their pages. Spending a couple minutes evaluating a plaintiff s friend list can result in beneficial information. According to a study from 2009, the average user has 120 friends on Facebook. Obviously checking each of these friends is not an efficient use of time. When searching friend lists, look for friends with the same last name or individuals identified as family members on the profile. Check these individuals pages in the hopes of finding beneficial photographs or information about the plaintiff. I-4

99 Do not forget about the plaintiff s likes. When a user likes a page, a connection is made. Frequently, users like local businesses and other entities they frequent. These likes can give you additional insight into the personal activities of a plaintiff. For example, an investigator located a plaintiff s Facebook profile and saw they liked a local bowling alley. On its face, this information did not seem relevant to the plaintiff s low back claim. Yet, when the investigator went to the bowling alley, he learned the plaintiff participated in a bowling league. As icing on the cake, the investigator also saw a huge banner congratulating the plaintiff on scoring a perfect game. The banner included the plaintiff s name and the date of the game. Unfortunately for the plaintiff, the date of the game coincided with the period of time the plaintiff was allegedly restricted from doing anything due to his low back complaints. While informal discovery and social media information is a useful tool in the litigation process, it will not always provide you with that essential piece of evidence to close the case. More often than not, you will gather pieces of information that will help guide you to make more informed decisions on how to proceed with the defense of the claim. In the bowling example above, the decision to hire an investigator to delve deeper into the plaintiff s bowling history only developed as a result of the content of his Facebook page. B. Performing Ethical Searches Since the use of social media information in claims and litigation is still relatively new, there has been little guidance from authoritative sources on the best way to handle, preserve and use this information. Nevertheless, some recommendations can be made. Any contact with plaintiffs via Facebook, MySpace, Twitter or other social networking sites may be viewed as an inappropriate and illegal contact with an opposing party. Therefore, the utmost care must be exercised and advice of counsel should be sought before endeavoring to use these resources. The Philadelphia Bar Association is one of the only entities in the country that has issued any sort of information and discussion regarding the use of social networking site information. The Philadelphia Bar Association issued an opinion in March 2009 in which an attorney from the bar had inquired whether or not it would be proper to obtain information contained in a social networking site of a potential adverse party. The article discussed the ways to get that information. One of the issues raised in the analysis was whether the information was posted as public. As detailed above, individual users on sites such as Facebook can modify their privacy settings. If no modifications are made, then that information is generally available to anyone with access to the internet. Some users have edited privacy settings so that only friends can access their information. One of the issues raised was whether an attorney or someone acting on their behalf can send a friend request to an individual on Facebook so as to become a friend and access this information. The recommendation from the Philadelphia Bar Association was that that would be an inappropriate manner in which to obtain information. Having another individual I-5

100 deliberately concealing the purpose of the friend request would allow the suggestion that the attorney was inducing an adverse party to provide information. Therefore, the following guidelines can be gleaned from a review of cases and bar position papers. Information contained in social networking sites on the internet can be used in claims and litigation. However, no deceptive practices should be incorporated or used in obtaining that information. There are no discovery rules or ethical guidelines that prohibit the use of social networking tools in formal and informal discovery. Based on all of the above, attorneys or claims professionals should not contact an adverse party through a friend request or tweet or other similar private message. The reason for this is that lawyers and claims professionals are not generally permitted to speak with an opposing party without an attorney present. The same prohibition applies to online communications, and is not ethically circumvented by utilizing a third party to contact the opposing party through a friend request or similar device. The bottom line is relatively straightforward: if information can be accessed through public means without deceptively requesting the information from the individual or one of the individual s friends, it is fair use. In 2010, the New York Bar Association issued an ethics opinion confirming that attorneys could access another party s social media site in an effort to gather potential impeachment evidence so long as the party s profile is available to all members in the network and the lawyer neither friends the other party nor directs someone else to do so. N.Y. State Bar Assoc., Ethics Opinion 843 (Sept. 10, 2010). C. Securing and Preserving Information Obtained through Informal Discovery When information is found during the informal discovery process, proper preservation is essential. Since it is easy to delete information from social media websites, it must to be preserved and stored as soon as it is discovered. Care must also be taken to ensure that it is properly preserved and stored to comply with the Rules of Evidence. In order to properly preserve social media evidence, it must be printed or stored electronically. Also, a date stamp must be included. Taking screen shots of the postings is an extra step that can be taken to preserve evidence electronically. While not absolutely necessary, screen shots add some additional credibility by showing that the information was not modified. The individual discovering and storing the evidence will need to sign an affidavit and may need to testify at trial. Consequently, the identity of the individual preserving the evidence must also be recorded. Proper preservation is essential to combat potential evidentiary arguments should the information be utilized at trial. II. ROLE OF INSUREDS Obviously, information available through the insured will vary greatly depending on the type of case and the relationship between the insured and the plaintiff. For example, in workers I-6

101 compensation cases, an employer is likely to have access to more information from a plaintiff s social media profile than in a personal injury claim in which a defendant has no relationship with the plaintiff. The role of an insured is likely greatest in workers compensation cases where there is no formal discovery process. However, in other cases in which an insured has a relationship with the plaintiff, the insured may have access to information a carrier does not. As noted in detail above, plaintiffs have attempted to circumvent discovery of their information by changing their privacy settings to prevent them from being viewed by the public. Early in the litigation process, if a carrier cannot obtain ethical access to a plaintiff s page, it needs to be determined whether the defendant/insured has access to this information despite the privacy settings. In laymen s terms, is the defendant already a friend of the plaintiff? As discussed above in detail, it is important for insureds to also understand that when the plaintiff is represented by counsel, it is not appropriate to have any contact with the plaintiff via social media profiles. Thus, if the insured is not already friends with the plaintiff, a request should not be sent to the plaintiff to make a new such connection. Additionally, the insured and insurer should never do anything dishonest or deceitful to gain access to a plaintiff s page. When a defendant is already friends with a plaintiff on social media or potentially has additional access to a plaintiff s page due to a friend-to-friend connection, there is no reason why the insured cannot provide the insurer with useful information derived from this connection. When relying on the insured for this information, the insurer and counsel must make sure that the insured understands how to ethically conduct these searches in order to avoid any potential issues with improper contact between the parties. In workers compensation cases, the respondent or employees of the respondent likely already have access to a private page of the petitioner. When the petitioner effectively uses privacy settings to restrict the profile, the attorney and carrier have no other alternative to access this type of information. Before asking a respondent to gather this information, it is best for the attorney and the employer to develop an agreed strategy for proceeding forward. III. RESPONSIBILITIES FOR COUNSEL While informal discovery searches can be conducted by carriers and insured, it should also be done by counsel at various points in time as the case progresses. Counsel can also use informal discovery searches to gain information about witnesses, experts, counsel and even jurors. Written discovery is useful for unearthing information that could not be obtained through informal discovery. As plaintiffs become more knowledgeable about privacy settings, gathering information through informal discovery is more difficult. Nonetheless, simply setting restrictive privacy settings is not enough to circumvent formal discovery rules. I-7

102 A. Issuing Preservation/Retention Letters As soon as possible once the litigation process begins, counsel should send a retention letter to plaintiff s counsel to prevent deletion of information or profiles from social media websites. This step should be performed whether or not you plan to use social media discovery; it does not hurt to preserve this potential evidence. In Torres v. Lexington Ins. Co., 237 F.R.D. 533 (U.S.D.C. p. 2), the plaintiff sued a hotel alleging a sexual assault occurring at the hotel caused social isolation, intense humiliation and mental anguish. During an informal discovery search, defense counsel found a social media account with a number of potentially damaging photographs. The photos and profile indicated the plaintiff was an aspiring singer and model, and called into question the severity of the alleged injuries from the incident. Defendant s counsel sent a spoliation letter and a request to produce to plaintiff s counsel. Two days later, the account was deleted. As a result of plaintiff s actions, the court issued serious sanctions including, but not limited to, dismissal of the mental anguish claim. Since it is relatively easy to delete information from social networking pages, it is wise to issue a preservation letter to prevent the plaintiff from deleting potential evidence. It is important to fight these battles against the plaintiff instead of expecting assistance from the site administrators. Sites, such as Facebook, routinely deny subpoena requests citing the Stored Communication Act, 18 U.S.C et seq. Pursuant to this statute, sites need only provide basic subscriber information to a party in a civil matter if the information is indispensable to the case and not within the party s possession. Further, Facebook will not comply with any subpoena unless it is a validly served California or federal subpoena. Out-of-state subpoenas must be domesticated and served personally. If you comply with these requirements, the information provided will not include any content such as wall posts or photos from the page. In almost all cases, it makes little sense to attempt to gather information from the sites directly. B. Using Requests to Produce and Interrogatories to Access Information Restrictive privacy settings are not enough to circumvent discovery requests. Social media evidence can be discovered in all aspects of formal discovery including during depositions. Counsel should not overlook the opportunity to discover this evidence in the initial written discovery process. In interrogatories, requests can be made for all screen names, sites used, and identities of any aliases used on these sites. A sample request would be: Identify the user name and address for any Facebook account maintained or accessed by you from (date) through the present. In document requests, counsel can tailor the request to gain access to the online accounts and media. Information that should be considered include: profiles, posts, messages (including forwards and replies), tweets, retweets, wall posts, comments, status updates, blog entries, comments, videos and pictures. An example of a request to produce is: I-8

103 For each Facebook account maintained or accessed by you, please produce your account data for the period of (date) through present. You may download and print your Facebook data by logging on to the Facebook account, selecting the Account Settings under the Account tab on your homepage, clicking the learn more link beside the Download your Information tab, and then following the directions on the Download your Information page. Allowing this self-collection method is more likely to be approved by the court because the plaintiff was provided with instructions, the request was limited to a specific period of time, and the plaintiff has the alternative of producing the information instead of allowing defense counsel direct access to the information. C. Gaining Access to Deleted Accounts Through Written Discovery Counsel can attempt to gather information from a deleted Facebook profile even in situations where the plaintiff deleted it. While counsel is also prevented by the same rules that prohibit insureds and insurers from contacting the plaintiff, counsel can use the formal discovery process to gain access to pages. Currently, there are no reported Illinois cases addressing discoverability of social media pages, although this type of information is being produced during the discovery process. It is worth noting that, even when a plaintiff deletes a Facebook profile at the start of litigation on the advice of counsel, the profile is not actually erased. When a Facebook profile is deleted, the profile is merely deactivated. This causes it to outwardly disappear from Facebook immediately. However, Facebook saves all profile information including friends, photos, interests, etc. To reactivate the account, a user need only sign on to Facebook from the main sign-on page. In order to permanently delete a Facebook page, a user must go to a specific page that is not easily located on the Facebook site and submit an official request. Once the request is processed, the profile page is deleted entirely with no option for recovery. While many attorneys warn clients to delete their pages, few understand this important distinction. In order to gain access to these deleted pages, counsel can use the written discovery process to identify and request access to previously held accounts. In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), a New York judge ordered production of the plaintiff s entire Facebook and Myspace profiles, including all private pages. The court pointed out that the privacy policies for the sites advise users that there is no expectation of privacy. In this situation, the plaintiff was ordered to execute a consent form authorizing Facebook and MySpace to provide the defendant with access to the pages. Similarly, in Bass v. Miss Porter s School, No. 3:08CV1807, 2009 WL (D. Conn. Oct. 27, 2009), the federal district court in Connecticut conducted an in camera inspection of the I-9

104 plaintiff s Facebook page. The defendant served written discovery requests on the plaintiff for production of documents specifically related to the claims in the case. Additionally, the defendant asked for any communications related to the allegations of the complaint. Following the inspection, the court ruled that the plaintiff s production was insufficient and therefore ordered the plaintiff to provide her complete profile to the defendant. In Ledbetter v. Wal-Mart Stores, Inc., No. 06-CV-01958, 2009 WL (D. Colo. Apr. 21, 2009), the court denied the plaintiff s request for a protective order regarding Facebook, MySpace and Meeup.com content. In McMillen v. Hummingbird Speedway, Inc., No CD, 2010 WL (Pa. Com. Pl. Sept. 9, 2010), a Pennsylvania court denied plaintiff s request for a protective order for his user name and log-in information on social media sites. The court ruled that there was no social media communications privilege, thus the plaintiff was ordered to produce usernames and passwords to the defendant. D. Authorizations Counsel can also send a written authorization for access to plaintiff s social media accounts to plaintiff s counsel, much like a release for medical records. Upon execution, this authorization allows defense counsel to access the plaintiff s profile directly. Companies such as LinkedIn have already developed their own consent forms to allow this type of access. Facebook s alternative is the download your entire profile link discussed above. If the plan is to attempt to obtain access a profile and content from the site administrator, an authorization is required. This authorization must permit disclosure to circumvent the Stored Communication Act discussed in detail above. In order to obtain a valid authorization, all biographical information, user account information, and the URL to the profile will be needed to identify the account. The authorization must specifically identify whether the production is to include photographs, videos, messages, etc. Once the authorization obtained, counsel can contact the site administrator in an effort to gather the information. If the administrator refuses, then a subpoena will need to be issued. Generally speaking, an authorization is less preferable than using a document request when trying to obtain access to this form of information. E. Rules of Evidence Information gathered during social media investigations can be useful in a number of different ways during the litigation process, such as in forcing a favorable settlement. However, special consideration must be given to the rules of evidence when planning to use this at trial. Applicable rules of evidence apply to social media information. That is, attorneys or other individuals seeking to use photographs, comments or connections discovered on an individual s social networking site, i.e. Facebook or Twitter, must satisfy specific requirements for admissibility under the rules of evidence. The federal rules of evidence provide a baseline for many states, though the exact rules of evidence for each state vary. Illinois has not universally adopted the federal rules of evidence. I-10

105 Under the federal rules, the preferred information must be relevant to the issue at hand. Relevant evidence is defined as having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Clearly, not all information posted or visible on a social networking site will satisfy this standard. Therefore, information found on a social networking site must have some ability to make the existence of any fact that is important to the case more or less probable. For example, photographs showing a plaintiff who claims soft tissue injuries of the neck ingesting alcohol at a party would not be relevant to any issue in the case. Conversely, photos of a plaintiff claiming soft tissue injuries drinking alcohol from a funnel and tube, which demonstrate the soft tissues of the neck being hyperextended, may be admissible to rebut plaintiff s testimony of her inability to do certain activities. Other evidentiary considerations will also likely come into play with this type of information. For example, Federal Rule of Evidence 403 dictates that evidence should not be admitted if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. In other words, otherwise relevant evidence may prove to be so prejudicial that it will not be admitted. For example, a photograph depicting an individual with asthma who claims difficulty with breathing lighting a marijuana cigarette may or may not be admissible. A court could find that the prejudicial effect of the ingestion of marijuana outweighs the probative value of the evidence. Therefore, any time this type of evidence is sought to be utilized, either in claims handling or litigation, careful consideration must be given to the legal context in which it is being used. Hearsay evidence is inadmissible unless it falls under one of the many exceptions to the rule. In State of Ohio v. Greer, No , 2009 WL (Oh. App. 8th Dist. Aug. 20, 2009), the court held that social networking posts by a party are not hearsay. The statements are admissible as admissions by a party opponent. Counsel needs to give special consideration to these evidentiary issues in order to avoid problems with admissibility at trial. Since this area of the law is very technical and fact driven, strategy becomes essential in determining how to best use this evidence throughout the litigation process. Pretrial disclosure of all of the aforementioned information can prove to be another tricky issue worthy of substantial consideration. Information and photographs in the possession of defense counsel must be shared with opposing counsel through normal discovery, assuming that normal discovery requests have been received. For example, if defense counsel obtains photographs of a plaintiff engaged in activities which postdate the occurrence, and which the plaintiff claims she was unable to perform, those photographs must be shared with plaintiff s counsel. Although there is some question as to the timing of production, the Illinois Rules of Evidence will not allow parties to produce evidence at the time of trial which was not previously disclosed. Good practice dictates that as soon as the information is discovered and an applicable discovery I-11

106 request has been received, the information should be produced without hesitation. Such information can also be valuable in terms of mediation; and should be produced prior to a mediation session. Often, parties will not attend a mediation individually. Rather, they will have friends or family members accompany them. Making the plaintiff aware of the subject information in advance of the mediation process can prove to be very beneficial in motivating a plaintiff toward settlement. IV. CONCLUSION Facebook and other social media is here to stay and its impact on litigation continues to grow. According to an ABA research piece, from January 1, 2010 through November 1, 2011 there were 674 published cases involving social media evidence in some capacity. Additionally, there have been nearly 300 federal court decisions through the end of 2009 that awarded sanctions for e-discovery violations. Insurers, insureds and counsel must understand how to benefit from this evidence and also how to defend cases against this evidence. Since it is a relatively new field, this area of the law is quickly changing and expanding. Having a solid understanding of how this evidence is found, gathered and used can quickly change the outcome of a claim. To be effective, we all need to work together when using this evidence. While not every case warrants an extensive social media evaluation, it is a beneficial and useful tool in litigation. All claims will not produce the smoking gun piece of evidence, but some will. Other times, social media evidence assists in the development of a more informed handling strategy. The information that parties place on the internet may be valuable in evaluating and defending claims. Since the public information and resources contained on social networking sites can be used to your advantage, it is worth investing some time to take a look. However, one must keep in mind the ethical and legal pitfalls that social networking presents. I-12

107 Stacie K. Hansen - Associate Stacie started with Heyl Royster as a summer associate while in law school, and then joined the firm s Peoria office in 2006 after graduation. While in law school, she was active on the Drake Journal of Agricultural Law, serving as a note editor. In 2005, she received a CALI Excellence for the Future Award in Agricultural Law. Stacie dedicates a significant portion of her practice to the defense of employers in workers' compensation cases. She handles cases on the Peoria, Bloomington and Kewanee dockets. She has effectively argued numerous claims before the Illinois Workers' Compensation Commission. She also handles a variety civil matters ranging from representing defendants in auto accidents and premises liability claims to representing corporations in shareholder disputes. She has experience in all aspects of case preparation and has trial experience. Additionally, Stacie has successfully mediated several complex claims. Stacie has a special interest in the use of social media in litigation and in formulating and drafting social media policies. She frequently speaks to clients, claims representatives and attorneys on these issues. Additionally, she has co-authored a variety of articles on Workers Compensation and Workers Compensation Appeals. Stacie was previously named a Rising Star by Super Lawyers and has been recognized by the Peoria County Bar Association for her commitment to pro-bono services. Publications Social Media for Public Employees, Heyl Royster Governmental Newsletter (2010) Supreme Court Addresses Propriety of TTD Termination Where Employee is Fired for Violating Company Rules, Below the Red Line Heyl Royster Workers Compensation Newsletter (2010) "Workers' Compensation Appellate Procedures," ABA Committee Newsletter (2007) Public Speaking Social Media: What Is It and How to Get It Admitted into Evidence National Association of Railroad Trial Counsel (2012) Workers Compensation Legislation Update Heyl Royster Spring Seminar for Commercial Litigation Clients (2012) Effective Use of Social Media in Informal Discovery RIMS - Bloomington, Illinois (2011) Developing Facts Through the Internet and Social Networking Sites: Electronic Informal Investigation and Discovery Heyl Royster Claims Handling Seminar (2010) Electronic Informal Discovery: Google, Facebook and Beyond Peoria County Bar Association Civil Practice Seminar (2010) Discovery of Social Networking Information National Association of Railroad Trial Counsel, Special Litigation Conference XXI (2011) Professional Recognition Outstanding Commitment to Pro Bono Services, 2008 (Peoria County Bono Plan) Named to the 2010 and 2011 Illinois Super Lawyers Rising Stars list. The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation. Professional Associations Peoria County Bar Association (Young Lawyers Committee; Past Chair, Membership Committee) Illinois State Bar Association American Bar Association Court Admissions State Courts of Illinois United States District Court, Central District of Illinois Education Juris Doctor (Honors), Drake University Law School, 2006 Bachelor of Science-Business, Miami University, 2003 I-13 Learn more about our speakers at

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109 SOCIAL MEDIA INVESTIGATION: HOW MUCH IS TOO MUCH? THE IMPACT ON EMPLOYEES PRIVACY RIGHTS AND POINTERS TO AVOID LITIGATION Presented and Prepared by: Jana L. Brady Rockford, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen J-1

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111 SOCIAL MEDIA INVESTIGATION: HOW MUCH IS TOO MUCH? THE IMPACT ON EMPLOYEES PRIVACY RIGHTS AND POINTERS TO AVOID LITIGATION Social media has inundated all aspects of business and society and is now the hotbed of labor and employment law litigation. On January 25, 2012, the National Labor Relations Board ( NLRB ) released an Operations Management Memo ( OM ), its second since taking on its first social media case in November of 2011, which sets forth its position concerning how much is too much when it comes to monitoring and restricting employees use of social media sites ( SMS ). In a nutshell, the message is: Social media policies should be specific and not overly broad such that they might chill activity protected by the National Labor Relations Act ( NLRA ). An employee s SMS activity will not likely be protected by the NLRA unless it relates to the workplace and involves other employees. How employers, attorneys, insurers, the media and the public are to apply this message in practice, while also chartering a myriad of other state and federal statutes and common law principles that might apply, is still being discovered given the evolving nature of the social media cases. By way of brief background, the NLRA, which applies to most private employers, was originally enacted in 1935 to protect the rights of employees, primarily with respect to unions. Its reach has grown over time. The NLRA created the NLRB which carries out and enforces the Act. On August 30, 2011, the NLRB published a Final Rule in the Federal Register requiring that employers post an 11"-by-17" poster which provides notice of NLRA rights in the work place. See 76 FR 54006; 29 C.F.R The poster can be found on the NLRB's website: nlrb.gov. On April 17, 2012, the NLRB announced that the implementation date of April 30, 2012 would be suspended in light of a district court ruling that questioned the enforcement mechanisms of the NLRA. Employee rights under the NLRA in the context of SMS cases stem from the NLRB's interpretation of section 7 of the NLRA. 29 U.S.C Section 7 of the NLRA states as follows: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. As it relates to social media, the terms "concerted activity" and "other mutual aid or protection" are the most important. The NLRB's test is whether the activity is engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. Meyers J-2

112 Industries, Inc. (Meyers I), 268 NLRB 493, 497 (1984). The NLRB will look at whether the employee had discussed postings with his co-workers and whether responses were posted by coworkers. See OFFICE OF THE GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, MEMORANDUM OM 12-31, REPORT OF THE ACTING GENERAL COUNSEL CONCERNING SOCIAL MEDIA CASES (2012) (hereinafter OM 12-31); OFFICE OF THE GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, MEMORANDUM OM 11-74, REPORT OF THE ACTING GENERAL COUNSEL CONCERNING SOCIAL MEDIA CASES (2011) (hereinafter OM 11-74). In the cases where the NLRB did not find concerted activity, the postings consisted of gripes or comments about what happened during work, but did not engage in any group discussion. "Mutual aid or protection" traditionally has been interpreted as meaning that the employee's comments must be in some way tied to the terms and conditions of employment in order to be protected. "Terms and conditions of employment" has been broadly interpreted to include everything from complaints about a supervisor to the type of food served to potential buyers of luxury automobiles. Id. The NLRB's pursuit of cases involving social media began with the matter of American Medical Response of Connecticut, Inc. ( AMR ), on November 2, There, AMR fired an employee over negative remarks the employee made about her supervisor on Facebook from her home computer. The posting drew comments from co-workers. The NLRB took the position that this was protected activity though the matter ultimately settled, with the employer agreeing to not discipline or discharge employees for discussing their wages, hours, and working conditions. OM 11-74, supra note 4. On April 27, 2011, the NLRB issued a news release stating that it approved a settlement with Build.com concerning a complaint that an employee was terminated for having posted comments about the company, which drew responses from other employees. The employees were not part of a union. As part of the settlement, the employer agreed to post a notice stating that employees have the right to post comments about terms and conditions of employment on their social networking pages without fear of punishment. Id. On May 24, 2011, the NLRB advised that a complaint had been filed against Knauz BMW, a Chicago area dealership, where one of its salesmen was fired after posting comments on Facebook criticizing the dealership for the quality of food and drink that it offered its customers and after the employee posted comments on Facebook about an accident involving one of its vehicles. Other employees joined in on the comments about the food and drink and expressed concern about how this could have a negative effect on their sales and commissions. The NLRB took the position that the employee was unlawfully terminated because the comments were a discussion of the terms and conditions of employment. On September 28, 2011, the administrative law judge found that there was no violation for the termination of the employee s employment because he was fired for the comments about the accident, which was not a concerted activity. The judge did find the employer in violation of the NLRA because its policies were overly broad. The unlawful provision of the employee handbook included: No one should be disrespectful or use profanity or any other language which injures the image or reputation of J-3

113 the Dealership. The other provisions that were found to be unlawful included a prohibition on employees from participating in interviews with, or answering inquiries concerning employees from practically anybody. The NLRB has appealed the ruling regarding the termination. In the NLRB's recent memo, OM 12-31, it reviewed 14 cases. Half of the cases involve questions about employer social media policies, five of which were found to be unlawfully broad. OM 12-31, supra note 4. The NLRB found that it is unlawful for a policy to forbid employees from making disparaging comments about the company through any media, including online blogs, other electronic media or through the media because it would reasonably be construed to restrict protected section 7 activity. The NLRB also found a policy to violate the NLRA which provided that employees should generally avoid identifying themselves as the employer s employees unless discussing terms and conditions of employment in an appropriate manner. Additionally, the NLRB found that an employer's disclaimer in a social media policy that nothing in the policy should be construed to prohibit employee rights under the NLRA was not enough to make the overall policy lawful. The NLRB did shine some light on what provisions might be acceptable, including a policy which prohibits the use of social media to post or display comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic. The NLRB also found that an employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws. It prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing launch and release dates and pending reorganizations. The other half of the cases addressed in OM involved the discharge of an employee after the employee posted comments on Facebook. Id. Many of the discharges were ruled to be unlawful because they stemmed from unlawful policies. One of the cases reviewed involved a collections agency that fired a worker for her expletive-laced Facebook post complaining about being transferred to another department. The post rallied support from co-workers. The worker was fired for violating the company's policy against disparaging remarks. The NLRB found that the discharge was unlawful. The provisions of the NLRA are just one of several restrictions placed upon employers' ability to monitor or restrict employees' use of social networking sites. Chief among them in Illinois is the Personnel Records Review Act. 820 ILCS 40/0.01, et seq. This act applies to businesses with five or more employees. It prohibits employers from gathering or keeping "a record of an employee's associations, political activities, publications, communications or nonemployment activities, unless the employee submits the information in writing or authorizes the employer in writing to keep or gather the information." This prohibition does not extend to: activities that occur on the employer's premises or during the employee's working hours with that employer which interfere with the performance of the J-4

114 employee's duties or the duties of other employees or activities, regardless of when and where occurring, which constitute criminal conduct or may reasonably be expected to harm the employer's property, operations or business, or could by the employee's action cause the employer financial liability. 820 ILCS 40/9. The Illinois courts have not interpreted this aspect of the Act, much less in the context of social networking sites. It appears to state, on the one hand, that an employer cannot keep any records regarding an employee's associations, political activities and the like, which oftentimes show up on social networking sites, but, if the employer does become aware of other types of activities during work hours or on the employer's premises that interfere with performance, then the employer must keep a record in the employee's personnel file. It also appears to state that employers may keep records so long as the employee authorizes it in writing, which might be integrated into the employers' social networking policy. The Illinois Eavesdropping Act prohibits eavesdropping, which includes monitoring of electronic communications, unless it is done with the consent of all parties. Again, a social networking policy signed by the employee would help protect against any violations of this Act. 720 ILCS 5/14-1, et seq. Employers also must be cognizant of the extent to which they use the Internet and social networking sites to screen candidates for open positions. Employers who search social networking sites to perform a background check on an applicant should consider the risks of doing so because the employer might learn information about the applicant's race, age, gender, sexual orientation, religious affiliation, or disability, which could place the applicant in a protected class. For example, the Illinois Right to Privacy in the Workplace Act makes it unlawful for an employer to refuse to hire or discharge any individual, or otherwise disadvantage any individual, because "the individual uses lawful products." 820 ILCS 55/1, et seq. In the context of social networking sites, this might take the form of an applicant or an employee's Facebook page which displays him smoking cigarettes and drinking alcohol. The Illinois Human Rights Act makes it a civil rights violation for an employer to inquire into or to use the fact of an arrest as a basis to refuse to hire a candidate or to treat an employee different than other employees. 775 ILCS 5/1-101, et seq. The fact of an arrest might show up on an individual's social networking site. If an employer decides to conduct a social networking site background check and decides not to hire an individual, if the employer comes across information which places the candidate in a protected class, the employer needs to document an independent basis for not hiring the individual. Or employers can train a specific person to sift through the Internet background check and eliminate any protected class information before giving it to the individual who makes hiring decisions. There are additional statutes that might come into play, as well as potential common law causes of action that might be filed against an employer for any intrusion on an employee's use of social networking sites, such as intrusion upon the seclusion of another, public disclosure of J-5

115 private facts, and false light common law claims, negligent hiring if an employer does not conduct a search that would have revealed certain information about criminal propensities for example, the federal Electronic Communications Privacy Act, 18 U.S.C. 2510, and Stored Communications Act. 18 U.S.C. 2701, et seq. There are additional areas of employment law that are unchartered as of yet. For example, to what extent must an employer become involved in a situation where two employees are friends on Facebook, perhaps one is a supervisor, but they are posting racial slurs or comments that would be considered sexual harassment which could subject the employer to liability. Until specific laws are passed and courts issue a consistent line of opinions, companies and their attorneys may be faced with uneven results when considering how to deal with social media. Each case needs to be dealt with on a case-by-case basis and discussed with legal counsel. The employer might be in a position where the employer must weigh the risks and benefits of taking certain actions and choosing to violate the National Labor Relations Act over the potential for being sued for racial discrimination or sexual harassment under Title VII of the Civil Rights Act of U.S.C. 2000e-2. This area of law is still developing since most laws were drafted before social networking became popular, but employers can lessen any expectation of privacy that employees might have, and violations of privacy, by taking the following steps: Establish a SMS policy that is specific and not overly broad. For example, it is permissible to prohibit the disclosure of "confidential information" so long as "confidential information" is defined. Have the employee sign an acknowledgment of receipt and agreement to the SMS policy. Include a provision that, if an employee identifies the employer on the employee's SMS, the employee should include language which makes it clear that the postings are the employees' personal views and that the employee is not a spokesperson for the employer. Incorporate by reference other existing policies including anti-harassment, antidiscrimination and non-disclosure policies. Require a written acknowledgement by employees that they are responsible for the content of their Internet postings during work hours, and/or when using employerowned computers and smart phones, and whenever their posting associates them in any way with the employer (including any private page that specifically identifies them as an employee of the company). Limit employee access to social media during the scope of work and when using employer-provided equipment. J-6

116 Make sure that employees are informed that a violation of the company s social networking policy could lead to discipline, including termination. Although you cannot rely upon a NLRA disclaimer to rescue an overly broad SMS policy, you should still include one. Enforce the policy. These materials were prepared with the assistance of Joseph V. Pumilia, law clerk, Heyl, Royster, Voelker & Allen. J-7

117 Jana L. Brady - Partner Jana Brady joined the firm's Rockford office following graduation from law school in 2003 and became a partner in She focuses her practice on the defense of civil litigation and federal practice, particularly in the context of employment law, civil rights, medical malpractice, correctional medicine, insurance coverage, school law, and nursing home cases. She also practices in the areas of health care law and creditors' rights in the context of lien adjudication. Publications Co-author, "Back Away from the 'Like' Button: The Potential for Employers' Liability in the Age of Social Networking," Illinois Defense Counsel Quarterly Monograph (2011) "Physician Disciplinary Records: TMI?!" IDC Defense Update, Vol. 11, No. 8 (2010) "What Constitutes an Invalid 'Blanket Consent' Within the Purview of Illinois' Mental Health and Developmental Disabilities Confidentiality Act?" Northern Illinois University Law Review (2002) "Uninsured and Underinsured Motorist Arbitration: Don't Be Put Off by Setoffs," DuPage County Bar Association Brief (2001) Assistant editor, Northern Illinois University Law Review Professional Associations Winnebago County Bar Association Illinois State Bar Association American Bar Association Illinois Association of Defense Trial Counsel (Vice Chair, Employment Law Committee) Defense Research Institute State Bar of Wisconsin Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern District of Illinois (including Trial Bar), and Eastern and Western Districts of Wisconsin Education Juris Doctor (Summa Cum Laude), Northern Illinois University College of Law, 2003 Bachelor of Arts-Sociology (Summa Cum Laude), McKendree College, 2000 Public Speaking A Program on the Extent to Which Employers May Monitor/Restrict Employees St. Mary s Occupational Health & Wellness (2012) Moot Court Prize Competition Champion, Best Oralist, Best Brief Northern Illinois University Moot Court (2002) J-8 Learn more about our speakers at

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119 AN APPEAL FOR YOUR APPEALS (OR, I FOUGHT THE LAW AND THE LAW WON) Presented and Prepared by: Brad A. Elward belward@heylroyster.com Peoria, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen K-1

120 AN APPEAL FOR YOUR APPEALS (OR, I FOUGHT THE LAW AND THE LAW WON) I. AN OVERVIEW OF THE APPEALS PROCESS IN WORKERS COMPENSATION CASES... K-3 A. A History of the Process... K-3 B in Review... K-3 C. A Four-Year Window... K-3 II. CRITICAL SEGMENTS... K-4 A. The Circuit Court... K-4 B. The Appellate Court, Workers Compensation Commission Division... K-4 C. The Supreme Court... K-5 III. HOW DOES THE APPELLATE COURT LOOK AT YOUR CASE?... K-6 A. It Focuses on the Record From Arbitration... K-6 B. It Applies the Governing Standard of Review... K-7 1. Fact Questions... K-7 2. Discretionary Rulings... K-7 3. De Novo... K-7 IV. HOW TO USE AN APPEAL TO RESOLVE YOUR CLAIM... K-7 A. Resolve the Issues on the Merits... K-7 B. Advance the Case Toward Settlement... K-7 C. Understand the Appeal Decision Involves More Than Just Defense Costs... K-8 V. WHAT WE EXPECT FROM THE 2011 AMENDMENTS... K-8 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. K-2

121 AN APPEAL FOR YOUR APPEALS (OR, I FOUGHT THE LAW AND THE LAW WON) I. AN OVERVIEW OF THE APPEALS PROCESS IN WORKERS COMPENSATION CASES A. A History of the Process The appeals process in workers compensation cases begins with the petition for review filed with the Workers Compensation Commission and includes the judicial review to the circuit court, an appeal as a matter of right to the appellate court, and a dual discretionary appeal to the Supreme Court. The Commission is deemed the trier of fact and any deference on fact-findings is afforded to the Commission, not the arbitrator. In 1984, Illinois Supreme Court Rule 22(i) authorized the creation of a separate branch of the appellate court, called the Appellate Court, Industrial Commission Division, since 2005, known as Workers Compensation Commission Division, and empowered it to hear all cases concerning workers' compensation claims. Prior to that time, workers' compensation cases were appealable as a matter of right to the Illinois Supreme Court. Under Rule 22(i), the Industrial Commission Division consists of five justices, one from each appellate district, to be appointed by the Supreme Court Justice from that district. This Division was created to promote a more efficient handling of workers' compensation appeals, to alleviate the burden on the Supreme Court, and to create a more uniform body of law. B in Review In 2011 there were 136 orders and decisions rendered by the Appellate Court, Workers Compensation Commission Division; of these, 116 were unpublished Rule 23 orders and 17 were published decisions. C. A Four-Year Window Summary of Workers Compensation Activity Year Total Appeals Filed Opinions Issued Rule 23 Orders Given the numbers identified in subsection B above, it appears that the total number of appellate court filings in 2011 has continued to rise over the past few years. K-3

122 II. CRITICAL SEGMENTS A. The Circuit Court The circuit court review is the first purely appellate review of the process and is often referred to as the judicial review. Judicial reviews are governed by 820 ILCS 305/19(f), Supreme Court Rule 292, and Commission Rule To properly commence a judicial review, the party challenging the Commission s decision must file five documents: Written Request to Commence Review Proceedings Summons for each opposing party, counsel, and Commission (usually three) Receipt showing payment of the probable costs of preparing the record on appeal or an affidavit of counsel showing that payment has been made Appeal bond signed by the employer and surety Certificate of service All must be filed in person with the circuit court within 20 days of the receipt of the Commission s decision. Gruszeczka v. Illinois Workers Compensation Comm n, 2012 IL App (2d) WC (mailbox rule does not apply to section 19(f) filings). This time period is considered jurisdictional and it cannot be extended by the parties agreement or by the circuit court. Of these five documents, the most critical is the employer s appeal bond. This bond must be signed by a representative of the employer who has the authority to financially bind the employer and by a surety authorized to issue surety bonds within the State of Illinois. Illinois does not allow a workers compensation carrier to post the policy in lieu of an appeal bond. How is the bond amount determined? Bonds are set at $100 over the outstanding amount of the award, with a maximum amount of $75,000. Venue is governed by the location of the party defendant in the judicial review, or, if no party defendant is located within the state, then the location of the accident. 820 ILCS 305/19(f)(1). B. The Appellate Court, Workers Compensation Commission Division At present, the Division consists of: Justice John T. McCullough, Appellate Court, Fourth District, Presiding Justice Justice Thomas E. Hoffman, Appellate Court, First District Justice Donald C. Hudson, Appellate Court, Second District Justice William E. Holdridge, Appellate Court, Third District Justice Bruce D. Stewart, Appellate Court, Fifth District K-4

123 Each justice also has a designated alternate in the event they are unavailable or have a conflict on the case. The court alternates between Chicago and Springfield and typically meets 10 times per year. C. The Supreme Court Appeals to the Illinois Supreme Court are governed by Supreme Court Rule 315(a), which also sets forth the general grounds for the filing of a Petition for Leave to Appeal (PLA). According to that Rule: Except as provided below for appeals from the Illinois Workers' Compensation Commission division of the Appellate Court, a petition for leave to appeal to the Supreme Court from the Appellate Court may be filed by any party, including the State, in any case not appealable from the Appellate Court as a matter of right. Whether such a petition will be granted is a matter of sound judicial discretion. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered: the general importance of the question presented; the existence of a conflict between the decision sought to be reviewed and a decision of the Supreme Court, or of another division of the Appellate Court; the need for the exercise of the Supreme Court's supervisory authority; and the final or interlocutory character of the judgment sought to be reviewed. Supreme Court Rule 315(a). As pertaining to workers compensation appeals, the Rule adds: No petition for leave to appeal from a judgment of the five-judge panel of the Appellate Court designated to hear and decide cases involving review of Illinois Workers' Compensation Commission orders shall be filed, unless two or more judges of that panel join in a statement that the case in question involves a substantial question which warrants consideration by the Supreme Court. A motion asking that such a statement be filed may be filed as a prayer for alternative relief in a petition for rehearing, but must, in any event, be filed within the time allowed for filing a petition for rehearing. Supreme Court Rule 315(a). The time for filing such a request is within 21 days of the appellate court decision or order. Supreme Court Rules 315(a), 367(a). Filing for Supreme Court review is a two-step process, which first requires the issuance of a statement from at least two members of the appellate court that the case involves a substantial question which warrants consideration by the Supreme Court. If those statements are issued, the party seeking Supreme Court intervention must then file a Rule 315(a) petition for leave to appeal, the allowance of which is discretionary with the Court. K-5

124 The Supreme Court typically accepts between four and six percent of the PLAs filed with it annually. Of this number an even smaller percentage are workers compensation appeals. To place this in perspective, the Appellate Court, Workers Compensation Commission Division did not issue a single Rule 315(a) statement in One PLA was filed in 2010 (denied); one was filed in 2009 (allowed); three were filed in 2008 (one was allowed); and one was filed and denied in The most recent Supreme Court pronouncements on workers compensation law were: Interstate Scaffolding, Inc. v. Illinois Workers Compensation Comm n, 236 Ill. 2d 132, 923 N.E.2d 266 (2010) Beelman Trucking v. Illinois Workers Compensation Comm n, 233 Ill. 2d 364, 909 N.E.2d 818 (2009) Roberson v. Industrial Comm n, 225 Ill. 2d 159, 886 N.E.2d 191 (2007) There are at least two cases of interest to workers compensation practitioners currently pending before the Supreme Court on petition for leave to appeal: Gruszeczka v. Illinois Workers Compensation Comm n, 2012 IL App (2d) WC (application of the mailbox rule to section 19(f) filings) Will County Forest Preserve District v. Illinois Workers Compensation Comm n, 2012 IL App (3d) WC (whether a shoulder is an arm under the Act) Because of the need to obtain a written statement from at least two justices of the appellate court, and further discretion from the Supreme Court, for all practical purposes, the Appellate Court, Workers Compensation Commission Division, is the principal authority on workers compensation law in the state. III. HOW DOES THE APPELLATE COURT LOOK AT YOUR CASE? A. It Focuses on the Record From Arbitration The court considers only the evidence whether documentary or testimony, presented at arbitration and contained in the record on appeal. Thus, if the parties conduct a section 19(b) hearing on March 30, 2012, the appellate court record will stop as of that hearing date and the appellate court cannot consider any matters that transpire in the case after that date. K-6

125 B. It Applies the Governing Standard of Review The appellate court reviews each issue in the case through the prism of a standard of review. Three standards apply to issues based on the type of question involved: 1. Fact Questions Fact issues are governed by a manifest weight of the evidence standard. Under this standard, the appellate court asks whether an opposite result is clearly apparent. The manifest weight of the evidence standard applies to all questions of fact and credibility and where the Commission is required to review conflicting medical evidence. Where there is evidence in the record to support the Commission s decision, the Commission s ruling is to be affirmed. 2. Discretionary Rulings Discretionary rulings are governed by an abuse of discretion standard of review, which asks whether a reasonable person in the position of the Commission would have reached the same conclusion. This standard most frequently applies to admissibility of evidence issues, but also applies where the arbitrator is asked for leave to file pleadings or to reinstate a claim previously dismissed for want of prosecution. 3. De Novo A de novo standard of review applies to questions of law. These are most commonly associated with statutory interpretation. When reviewing a Commission decision on this standard, the appellate court affords no deference to the Commission s findings and can decide the issue anew. IV. HOW TO USE AN APPEAL TO RESOLVE YOUR CLAIM A. Resolve the Issues on the Merits The primary job of the appeal is to either set aside an adverse Commission decision (as appellant) or to uphold a favorable Commission decision (as appellee). B. Advance the Case Toward Settlement The appeal process is complex and time-consuming and requires different skills than needed to try a case before an arbitrator or the Commission. These factors in addition to the uncertainty make the filing of an appeal, or the threat to file and prosecute an appeal, a tool in moving your case toward settlement. The time delay in reaching a final appellate decision can provide leverage to compromise an award or obtain a closure of future medical and other rights such as those available under section 8(a) and 19(h). K-7

126 C. Understand the Appeal Decision Involves More Than Just Defense Costs The decision to appeal is based on three prongs: (1) the potential financial costs of the appeal, (2) the prospects for success on appeal, and (3) the implications of not appealing. While the first two are self-explanatory, the third prong involves an understanding of how the appeal impacts the claim, how it might impact settlement prospects, and the public perception of the employer based on its decision to pay the award or advocate its rights. V. WHAT WE EXPECT FROM THE 2011 AMENDMENTS Several of the 2011 amendments will need significant appellate court interpretation to fully understand the parameters of the new law. We anticipate that disputes on these issues will necessitate more appellate litigation and will require larger defense reserves in order to ensure that in each case our issues are fully preserved and the foundation set for appellate review. RESOURCES: Elward, Brad A., Workers Compensation Reviews And Appeals: A Review And Suggestion For Change, 22 N. Ill. U. L. Rev. 493 (Summer 2002) K-8

127 Brad A. Elward - Partner Brad concentrates his work in appellate practice and has a significant sub-concentration in workers' compensation appeals. He has been with the firm since 1991 and has handled all aspects of civil appeals, ranging from preparation of initial appeal documents through the drafting of appellate briefs and presentation of oral arguments. Brad handles workers' compensation cases before the Workers' Compensation Commission, the circuit courts, and the Appellate Court, Workers' Compensation Commission Division. Brad has authored more than 275 briefs and argued more than 125 appellate court cases, resulting in more than 60 published decisions. He has appeared before every Illinois Appellate Court District and has significant experience with interlocutory appeals. He has also authored amicus curiae briefs before the Illinois Supreme Court on behalf of the Association of Illinois Defense Trial Counsel. In addition to his workers' compensation appeals, Brad has also handled appeals involving complex asbestos and procedural issues (including venue and forum non conveniens) and served as a senior motion writer and team leader on multi-billion dollar diminished value and salvage title class action litigation. Brad has taught courses on workers' compensation law for Illinois Central College as part of its paralegal program and has lectured on appellate practice before the Illinois State Bar, Peoria County Bar, and Illinois Institute for Continuing Legal Education. He has also authored numerous articles on appellate and workers' compensation practice and writes a quarterly column on appellate practice for the Illinois Association of Defense Trial Counsel. Brad is the current editor of the firm's workers' compensation e-newsletter, published monthly. Brad has also written and published five books and over 20 articles on naval aviation and military related topics. Publications "Survey of Illinois Law: Workers' Compensation," Southern Illinois University Law Journal (2010) "Rule 315(a) Petitions for Leave to Appeal: A Practice Primer," Illinois Defense Counsel Quarterly (2009) Public Speaking Workers' Compensation Appeals to the Commission, Circuit and Appellate Court Winnebego County Bar Association (2011) Recent Changes and Developments in Illinois Workers' Compensation Appeals/Recent Cases IDC Fall Seminar (2011) Professional Recognition Named to the Illinois Super Lawyers list ( ). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation. Professional Associations Illinois Appellate Lawyers Association (Secretary; Director ; Rules Chairman, ; Rules Committee, ; event coordinator; past moot court competition judge) Illinois State Bar Association (Workers' Compensation Section Council, ) American Bar Association (TIPS, Appellate Advocacy Committee, and Workers' Compensation Committee) Peoria County Bar Association Illinois Association of Defense Trial Counsel (IDC Quarterly Editorial Board; IDC Quarterly "Appellate Practice" columnist) Court Admissions State Courts of Illinois United States Court of Appeals, Seventh and Eighth Circuits United States District Court, Central and Southern Districts of Illinois Education Juris Doctor, Southern Illinois University (Magna Cum Laude), 1989 Bachelor of Science-Economics, University of Illinois, 1986 K-9 Learn more about our speakers at

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129 WHAT HAS THE APPELLATE COURT DONE FOR OR AGAINST US LATELY? CASE LAW UPDATE Presented and Prepared by: Joseph K. Guyette Urbana, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen L-1

130 WHAT HAS THE APPELLATE COURT DONE FOR OR AGAINST US LATELY? CASE LAW UPDATE I. CAUSATION/ARISING OUT OF THE COURSE OF EMPLOYMENT... L-5 A. The Appellate Court Held That the Petitioner Had Removed Himself From the Course of Employment, But Re-Entered the Course of Employment Prior to His Accident, Concluding the Petitioner s Injuries Were Compensable... L-5 B. The Commission Held That the Petitioner s Employment Placed Him in a Position That Increased the Dangerous Effects of His Unexplained Fall, Finding His Claim to Be Compensable... L-5 C. The Commission Held That the Respondent Was Not Responsible for a Series of Physical Therapy Visits Where the Petitioner Noted That He Was Not Experiencing Any Pain... L-6 D. The Commission Rejected Speculative Evidence Regarding the Cause of a Petitioner s Death, Where No Autopsy Was Performed... L-7 E. The Commission Upheld Compensability of the Petitioner s Claimed Shoulder Injury, Despite an Eight-Month Gap Between the Claimed Accident and Initial Treatment... L-7 F. The Commission Required Expert Evidence Regarding Causation and the Amount of Time It Took His Employer to Respond to a Heart Attack, Where He Claimed That Brain Damage Was Caused by a Delay in That Response... L-8 G. Due to the Lack of a Causal Connection Opinion, the Commission Overturned the Arbitrator s Findings That the Medical Records Showed a Trend Linking the Petitioner s Acute Accident and Her Carpal Tunnel Syndrome... L-8 H. The Commission Held That the Petitioner s Lay Testimony and Chain of Events Explanation of His Injury Were Insufficient, and He Would Need An Expert Medical Opinion to Causally Link His Injuries to the Claimed Accident... L-9 II. INTERPRETATION OF THE ACT... L-10 A. The Appellate Court Held That a Workers Compensation Claim Was the Exclusive Remedy for a Petitioner Who Had Been Leased Out by a Temporary Staffing Agency... L-10 L-2

131 B. The Appellate Court Held That the Tort Immunity Act s One Year Statute of Limitations Does Not Apply to a Retaliatory Discharge Claim Based on the Workers Compensation Act... L-11 C. The Appellate Court Held That the Petitioner Did Not Violate the Two-Physician Rule, Even Where the Medical Records Do Not Include Written Referrals for Each of the Petitioner s Four Physicians, and the Petitioner s Attorney Was Involved in a Number of the Referrals... L-11 D. The Appellate Court Held That an Award Must Be Issued to the Petitioner in a 19(g) Proceeding Even Where a Credit Exists That Is Larger Than the Award... L-12 E. The Appellate Court Held That the Respondent s Fraud Case Against a Petitioner Must Proceed Before the Workers Compensation Commission, Not at the Civil Court... L-13 III. AVERAGE WEEKLY WAGE/AWARD CALCULATION... L-14 A. The Appellate Court Held That an Injury to the Petitioner s Shoulder Should Be Subject to an Award Based on a Percentage Loss of Use of a Person As a Whole Instead of Loss of Use of an Arm... L-14 B. The Appellate Court Held That the Petitioner s Overtime and Incentive-Based Bonuses Should Be Included in the Calculation of His Average Weekly Wage... L-14 C. The Appellate Court Held That an Employer Is Entitled to an 8(j) Credit for the Amount of TTD That Was Paid to the Petitioner While She Was Also Receiving Her Full Salary... L-15 D. The Appellate Court Held That the Petitioner Failed to Establish a Sufficiently Diligent Job Search So As to Support an Award for Odd-Lot Permanent Total Disability... L-16 IV. TEMPORARY TOTAL DISABILITY... L-17 A. The Appellate Court Deferred to the Commission s Ability to Suspend TTD Benefits, Where the Petitioner Had Previously Refused Light Duty Work Within His Restrictions... L-17 V. MEDICAL TREATMENT... L-18 A. The Commission Holds That a Prosthetic Finger Is Reasonable and Necessary Medical Treatment Following an Amputation... L-18 L-3

132 VI. PENALTIES AND FEES... L-19 A. The Appellate Court Held That Undisputed Portions of an Arbitration Award Must Be Paid Even Where Other Portions Are Being Appealed to Avoid Penalties and Fees... L-19 B. The Appellate Court Held That the Petitioner Was Not Entitled to Section 19(k) Penalties for Failure to Authorize Medical Treatment That Had Not Yet Been Completed... L-19 VII. JURISDICTION... L-20 A. The Respondent s Failure to Comply With the Provisions Governing a Review by the Commission Did Not Deprive the Commission of Jurisdiction Because the Employer Had Substantially Complied With Those Rules... L-20 B. Substantial Compliance With the Procedures for Appealing a Case to the Circuit Court Is Not Found Where the Petitioner Failed to File a Petition for Judicial Review Within 20 Days After Receipt of the Commission s Decision... L-21 C. The Appellate Court Found That the Circuit Court Was the Proper Venue for Interpreting the Provisions of the Act, Rather Than the Commission... L-22 VIII. SUBROGATION/THIRD-PARTY PRACTICE... L-23 A. The Appellate Court Held That a Trial Court May Not Reduce a Respondent s Workers Compensation Lien in the Petitioner s Civil Case... L-23 B. The Appellate Court Held That a Respondent Cannot Be Liable in a Contribution Action to a Third Party, Where It Has Settled a Workers Compensation Claim and Waived Its Rights to a Workers Compensation Lien... L-24 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. L-4

133 WHAT HAS THE APPELLATE COURT DONE FOR OR AGAINST US LATELY? CASE LAW UPDATE I. CAUSATION/ARISING OUT OF THE COURSE OF EMPLOYMENT A. The Appellate Court Held That the Petitioner Had Removed Himself From the Course of Employment, But Re-Entered the Course of Employment Prior to His Accident, Concluding the Petitioner s Injuries Were Compensable In Johnson v. Illinois Workers Compensation Comm n, 2011 IL App (2d) WC, 956 N.E.2d 543, 353 Ill. Dec. 681 (2d Dist. 2011), the Appellate Court, Second District, Workers Compensation Commission Division considered a case where a police officer left his designated patrol area for a personal errand, against his employer s rules. Then, while responding to a call about a drunk driver, he was injured in an automobile accident. At arbitration, the respondent argued that the petitioner s injuries were not compensable because he had left the course of his employment at the time of his accident. The arbitrator found that the accident was compensable, but the Commission disagreed. The petitioner appealed the case to the circuit court, where the Commission was reversed. The circuit court concluded that the petitioner was within the scope of his employment at the time of the accident. The respondent brought the case to the appellate court, and argued that the automobile accident could not have occurred but for the petitioner s deviation from the course of his employment. The appellate court acknowledged that the petitioner had deviated from the course of his employment, but concluded that he had re-entered the course of his employment when he received the call to respond to an alleged drunk driver. As a result, the appellate court held that the petitioner was in the course and scope of his employment at the time of his accident, and his claim was compensable. In this case, the appellate court clarified that a petitioner must be in the course and scope of his employment at the time of the accident, even if he previously had left the course and scope of his employment. The respondent s argument that the petitioner would not have been at the site of the accident but for his deviation was ignored because that deviation ended prior to the accident. B. The Commission Held That the Petitioner s Employment Placed Him in a Position That Increased the Dangerous Effects of His Unexplained Fall, Finding His Claim to Be Compensable In Terrell v. Pet Dairy, 11 I.W.C.C (Dec. 16, 2011), the Commission considered a case where the petitioner suffered injuries as a result of an unexplained fall. In this case, the petitioner reported for work, and his supervisor noticed that he was acting strangely. The petitioner was L-5

134 taken for a drug and alcohol screen, but was allowed to return to his regular position that same day. Based on the arbitrator s decision, it is not clear whether the petitioner testified, but the petitioner was unable to present any evidence establishing the cause of his fall. The arbitrator s decision explained that falls resulting from epileptic seizures, fainting or other diseases or injuries that are internal or inherent to the petitioner are generally classified as idiopathic falls, and are not compensable. In this case, the arbitrator found the petitioner s injuries to be compensable, because his employment significantly contributed to his injury by placing him in a position that increased the dangerous effects of his fall. The only witness to the fall testified that the petitioner was standing on flat concrete, when he became stiff and fell onto his face. The arbitrator ignored this testimony, and found that the medical records suggested that the petitioner had fallen while standing on scaffolding. Further, the arbitrator relied on the medical records to find that the petitioner struck his head on a metal strip or bar while falling. Relying on those findings, the arbitrator found the petitioner s injuries were compensable, even though he had suffered an idiopathic fall. The respondent pursued a Commission review of the arbitrator s decision. Without further explanation, the majority of the Commission panel affirmed the arbitration decision. One commissioner dissented, noting that the testimony of the only eyewitness contradicted the arbitrator s findings. In this case, the Commission upheld the arbitrator s decision, finding the petitioner s claim to be compensable because his surroundings caused increased injuries following an idiopathic fall. C. The Commission Held That the Respondent Was Not Responsible for a Series of Physical Therapy Visits Where the Petitioner Noted That He Was Not Experiencing Any Pain In Martinez v. DSC Logistics, 11 I.W.C.C (Sept. 19, 2011), the Commission considered a case where the petitioner continued to attend physical therapy sessions, even after all the pain related to his claimed back injury had resolved. In this case, the petitioner sustained a compensable low back strain while lifting boxes at work. The arbitrator ordered the respondent to pay for all of the petitioner s medical treatment, and provided the petitioner with an award of 5 percent loss of use of a person as a whole. On review, the Commission upheld the arbitrator s permanency award, but found the respondent should not be responsible for a number of the petitioner s medical bills. Specifically, the Commission noted that the petitioner underwent eight physical therapy sessions where his pain complaints were zero on a scale of zero to ten. Following these physical therapy sessions, the petitioner was re-evaluated by his treating physician, again recording that the petitioner had no pain. The Commission deducted those bills from the amount awarded by the arbitrator, resulting in a savings of $5,000 to the respondent. L-6

135 In this case, the Commission held that the respondent should not be responsible for additional care and treatment after the petitioner s pain complaints have completely resolved. D. The Commission Rejected Speculative Evidence Regarding the Cause of a Petitioner s Death, Where No Autopsy Was Performed In Knaus v. Illinois State Tollway Authority, 11 I.W.C.C (Sept. 19, 2011), the Commission considered a case where a petitioner was found unresponsive in a job site restroom. After being taken to the hospital, the petitioner was pronounced dead, but no autopsy was performed because of the petitioner s religious beliefs. Both the petitioner and respondent presented records review reports at the time of arbitration. The respondent s expert suggested it was impossible to determine the cause of the petitioner s death without an autopsy. The petitioner s expert opined that the petitioner s job duties caused the heart attack that resulted in the petitioner s death. The arbitrator sided with the petitioner s expert, and awarded the widow workers compensation death benefits. The respondent sought a Commission review of the arbitrator s decision. The Commission overturned the arbitrator s decision, dismissing the petitioner s expert s report as speculative. The Commission noted that the petitioner s medical records revealed pre-existing heart problems, including prior coronary artery by-pass surgery. The Commission held that the petitioner was required to establish that an accidental injury aggravated or accelerated the preexisting condition, and that this determination must be based on evidence in the record. The Commission found that, without an autopsy, any causation opinion would be based only on speculation. In this case, the Commission required the petitioner to meet his burden of establishing causation through credible evidence, and found that a speculative causation report was insufficient to meet that burden. E. The Commission Upheld Compensability of the Petitioner s Claimed Shoulder Injury, Despite an Eight-Month Gap Between the Claimed Accident and Initial Treatment In Aguilar v. Preferred Freezer Services, 11 I.W.C.C (Aug. 24, 2011), the Commission considered a case where there was an eight-month gap between the petitioner s claimed accident and initial medical treatment. The petitioner reported a shoulder injury to his supervisor and was given pain medication. At that time, he did not see a doctor. The petitioner testified that he used heating pads and over-the-counter pain medication to treat his shoulder, but continued to have pain. After eight months, the petitioner finally sought medical treatment and was diagnosed with a rotator cuff tear. At that time, the petitioner s physician also causally related the rotator cuff tear to the claimed accident. L-7

136 At arbitration, the claimed accident was found to be compensable, and the respondent was required to pay for the rotator cuff surgery. In the decision, the arbitrator noted that the petitioner was uneducated and did not speak English. The arbitrator also noted that the petitioner did not know his employer would be responsible for necessary medical treatment. The respondent had the case reviewed by the Commission, but the arbitrator s decision was affirmed. In this case, the arbitrator and Commission seemingly relied upon the petitioner s lack of understanding of the workers compensation system to overlook an eight-month gap between the claimed accident and the onset of treatment. F. The Commission Required Expert Evidence Regarding Causation and the Amount of Time It Took His Employer to Respond to a Heart Attack, Where He Claimed That Brain Damage Was Caused by a Delay in That Response In Hayes v. Henry Pratt Co., 11 I.W.C.C (July 7, 2011), the Commission considered a case in which the petitioner alleged that brain damage was caused by the respondent s delay in responding to his heart attack while at work. In this case, the petitioner had significant preexisting heart problems, and he was not alleging that the heart attack was caused by his employment. Instead, the petitioner alleged that the inadequate response by his employer, following the onset of heart attack symptoms, resulted in brain damage that would not have occurred if the employer had properly responded. At arbitration, the petitioner s arguments were rejected, and compensability was denied. The petitioner filed a petition for review by the Commission. The Commission upheld the arbitrator s decision based on a lack of evidence presented by the petitioner. Specifically, the Commission noted that there was no evidence presented to establish how long it took the employer to respond to the petitioner s heart attack. Further, the petitioner failed to present any expert medical evidence to establish that the brain damage was caused or worsened by a delayed response by the employer. The Commission s decision noted that an inference could be made that a delay in responding could result in increased damage to the brain, but specifically required the petitioner to present evidence in that regard. In this case, the Commission required the petitioner to present evidence to support causation, even where an inference could be made that causation was present. G. Due to the Lack of a Causal Connection Opinion, the Commission Overturned the Arbitrator s Findings That the Medical Records Showed a Trend Linking the Petitioner s Acute Accident and Her Carpal Tunnel Syndrome In King-Alexander v. W. A. Howe Development, 11 I.W.C.C (June 30, 2011), the Commission considered a case involving an acute injury to the petitioner s neck, back and shoulder. After the L-8

137 accident, the petitioner began complaining of right hand symptoms, and was later diagnosed with carpal tunnel syndrome. The petitioner did not have a medical causation opinion linking the acute accident to her carpal tunnel syndrome. The arbitrator found that all of the petitioner s injuries were causally related to her employment, including her carpal tunnel syndrome. The arbitrator s decision indicated that the chain of events revealed by the medical records showed the carpal tunnel symptoms increasing over time. Further, the arbitrator found that there was no indication of carpal tunnel symptoms prior to the accident. The respondent sought Commission review of the arbitrator s decision, with regard to the diagnosis of carpal tunnel syndrome. The Commission reversed the arbitrator s finding, denying compensability for the carpal tunnel syndrome. The Commission s decision noted that the petitioner s carpal tunnel complaints began more than two months after the alleged accident date. Further, the Commission found that the claim was based on an acute accident, rather than repetitive trauma. Therefore, the Commission found that the petitioner s testimony regarding the repetitive nature of her job was irrelevant and insufficient to carry her claim. Finally, the Commission noted there was no causal connection opinion offered by any of the petitioner s physicians, while the respondent offered expert testimony to establish that the carpal tunnel syndrome was not related to the claimed acute accident. Ultimately, the Commission found that the right carpal tunnel syndrome was unrelated to the claimed accident, reversing the arbitrator s findings. In this case, the Commission reiterated the need for evidence to establish causal connection, and specifically found that the lack of symptoms prior to an accident is insufficient to carry a claim. H. The Commission Held That the Petitioner s Lay Testimony and Chain of Events Explanation of His Injury Were Insufficient, and He Would Need An Expert Medical Opinion to Causally Link His Injuries to the Claimed Accident In Gibson v. Pizza Hut, 11 I.W.C.C (May 10, 2011), the Commission considered a case where the petitioner attempted to causally link a twisting knee injury to a subsequent infection in his knee joint. At arbitration, the petitioner testified that he did not have any knee pain or injuries prior to his claimed accident. According to the petitioner, he twisted his knee while he was attempting to lift pizza pans. Shortly thereafter, the petitioner s knee became increasingly painful, and was ultimately diagnosed with an infection in the knee joint. At arbitration, the petitioner was awarded medical bills, temporary total disability, and a permanency award of 20 percent loss of use of his left leg. The respondent had the case reviewed by the Commission, arguing there was no causal connection between the claimed accident and the joint infection. The Commission agreed, vacating the arbitrator s award. The Commission noted that the petitioner s lay testimony and L-9

138 chain of events explanation was insufficient to establish causation. The Commission explained that none of the treating physicians actually opined that the work accident caused the infection, and that the causation issues in this case were too complex to be established without expert testimony. In this case, the Commission found that the petitioner needed expert medical testimony to establish causal connection, rejecting his chain of events claim. II. INTERPRETATION OF THE ACT A. The Appellate Court Held That a Workers Compensation Claim Was the Exclusive Remedy for a Petitioner Who Had Been Leased Out by a Temporary Staffing Agency In Mason v. John Boos & Co., 2011 IL App (5th) , 959 N.E.2d 209, 355 Ill. Dec. 181 (5th Dist. 2011), the Appellate Court, Fifth District considered a case where a temporary employee filed and settled a workers compensation claim against his temporary staffing agency, and then filed a civil action against the company that had leased him at the time of the accident. In this case, the petitioner was injured while operating a piece of machinery and received workers compensation benefits from the temporary staffing agency as a result of that injury. After the workers compensation case was settled, the petitioner brought a civil action against the company for whom he was working. That employer moved to dismiss the negligence complaint, and argued that the petitioner s exclusive remedy was the Workers Compensation Act. The petitioner s argument was based on the Employee Leasing Company Act. Specifically, the petitioner argued that the temporary staffing agency failed to properly register with the Illinois Department of Insurance. The appellate court rejected the petitioner s argument, noting that the staffing agency s failure to comply with the Employee Leasing Company Act would have no impact on the exclusivity of the Workers Compensation Act. The appellate court noted that the only exception to the exclusivity of the Workers Compensation Act is where an employer is uninsured. Specifically, section 4 of the Act allows an employee to bring a civil action against an employer who does not have workers compensation insurance. In this case, the temporary staffing agency had workers compensation insurance, even if the agency had failed to register with the Illinois Department of Insurance. As a result, the petitioner s negligence claim was properly dismissed. In this case, the appellate court held that the Workers Compensation Act is the exclusive remedy for an injured employee, even if the petitioner s employer has failed to register with the Department of Insurance. L-10

139 B. The Appellate Court Held That the Tort Immunity Act s One Year Statute of Limitations Does Not Apply to a Retaliatory Discharge Claim Based on the Workers Compensation Act In Collins v. Town of Normal, 2011 IL App (4th) , 951 N.E.2d 1285, 351 Ill. Dec. 621 (4th Dist. 2011), the Appellate Court, Fourth District considered a case where an employee of a municipality suffered a compensable injury and settled his workers compensation claim. After that, his employment contract was not renewed. Sixteen months after his contract was nonrenewed, the employee filed a retaliatory discharge claim pursuant to the Workers Compensation Act. The municipality moved to dismiss that claim based on the one year statute of limitations in the Tort Immunity Act. The circuit court agreed that the one year statute of limitations would bar the retaliatory discharge claim, and the employee s case was dismissed. The plaintiff/petitioner brought the case to the Fourth District Appellate Court, arguing that a different section of the Tort Immunity Act should be applied to allow the retaliatory discharge claim. Specifically, the plaintiff/petitioner argued that section 2-101(c) of the Tort Immunity Act specifically does not bar a municipality s liability for workers compensation claims. The plaintiff/petitioner argued that this section would apply to the retaliatory discharge claim, because it was brought pursuant to the Workers Compensation Act. The appellate court held that section 2-101(c) would apply to both the liability and procedural aspects of the Workers Compensation Act, allowing the retaliatory discharge claim to proceed. The appellate court concluded that an action falling under section 2-101(c) would be handled outside of the procedures dictated by the Tort Immunity Act. The appellate court ultimately remanded the case back to the circuit court for resolution of the retaliatory discharge claim. In this case, the appellate court held that the one year statute of limitations in the Tort Immunity Act could not be applied to bar a retaliatory discharge claim brought 16 months after a municipal employee s employment contract was not renewed. C. The Appellate Court Held That the Petitioner Did Not Violate the Two- Physician Rule, Even Where the Medical Records Do Not Include Written Referrals for Each of the Petitioner s Four Physicians, and the Petitioner s Attorney Was Involved in a Number of the Referrals In Absolute Cleaning/SVMBL v. Illinois Workers Compensation Comm n, 409 Ill. App. 3d 463, 949 N.E.2d 1158, 351 Ill. Dec. 63 (4th Dist. 2011), the Appellate Court, Fourth District considered a case where the respondent challenged the petitioner s referrals to various doctors, and argued that the petitioner had violated the two-physician rule. In this case, the petitioner injured her back and treated with a number of physicians. Specifically, the petitioner saw a primary care physician, a chiropractor, a back specialist, and a pain specialist. The treatment records revealed that the initial treatment took place with a chiropractor, who referred the petitioner to a family physician. The chiropractor then referred the petitioner to a back specialist, but provided the L-11

140 petitioner with a choice of two physicians for that referral. From there, the petitioner was referred to another pain specialist. At arbitration, it was held that the petitioner did not violate the two-physician rule. The Commission affirmed the arbitrator s decision and the circuit court did the same. At that point, the respondent took the case to the appellate court. Before the appellate court, the respondent argued that the petitioner had failed to present written referrals to each of the four physicians she had seen, and that the records reflected that the petitioner s attorney directed the chiropractor to make a referral to a specific physician. Further, the respondent argued that the petitioner s attorney s involvement in at least one of the referrals constituted an improper attempt to circumvent the two-physician rule. The appellate court held that the petitioner did not violate the two-physician rule. Specifically, the court found that the context of a physician s referral is irrelevant, so long as that physician ultimately makes a referral. The appellate court dismissed the notion that the petitioner s attorney s involvement was improper because it was the chiropractor who made the referral, not the petitioner s attorney. Further, the lack of a written referral was unimportant, because the treatment records reflected which physician made the referral, and when the referral was actually made. In this case, the appellate court held that the petitioner did not violate the two-physician rule, even though some of the referrals were made under questionable circumstances. The appellate court held the petitioner to very minimal standards for establishing the validity of a referral. Other than to confirm that a referral was made by one physician to another, the appellate court did not make any further inquiry into the context of any referrals. D. The Appellate Court Held That an Award Must Be Issued to the Petitioner in a 19(g) Proceeding Even Where a Credit Exists That Is Larger Than the Award In Patel v. Home Depot USA, Inc., 2012 IL App (1st) , the Appellate Court, First District considered a case where a petitioner sought to enforce an arbitrator s award, but the respondent held a credit that was larger than the award. In this case, the respondent had a credit of $27, for overpayment of temporary total disability benefits. At arbitration, the petitioner was awarded a sum of $22, The petitioner sought to enforce that award by way of a 19(g) petition to the circuit court. The respondent refused to pay the award, noting that it held a credit in excess of the amount requested by the petitioner. The circuit court refused to allow the respondent to rely on the credit in place of the award, ordering the respondent to pay the full amount ordered by the Commission. In addition, the circuit court awarded the petitioner attorneys fees of $47,000, costs of $5, and interest of $13, L-12

141 The respondent brought the case to the appellate court, again arguing that its credit should negate any duty to pay the petitioner. The appellate court affirmed the circuit court s decision, holding that section 19(g) applies only to compensation and does not recognize a credit as compensation. According to the court, a respondent must pay the full amount of the award, and then seek to recover the credit for overpayment in a separate civil action against the petitioner. In this case, the appellate court refused to honor the respondent s credit and awarded the petitioner attorneys fees, costs and interest. In doing so, the appellate court further complicated the procedure for the respondent to enforce its credit for overpayment of temporary total disability benefits. E. The Appellate Court Held That the Respondent s Fraud Case Against a Petitioner Must Proceed Before the Workers Compensation Commission, Not at the Civil Court In Country Insurance and Financial Services v. Roberts, 2011 IL App (1st) , 951 N.E.2d 1217, 351 Ill. Dec. 553 (1st Dist. 2011), the Appellate Court, First District considered a claim of fraud brought by an insurer against a workers compensation petitioner. In that case, the insurance company alleged that a petitioner had falsified a workers compensation claim and committed fraud in pursuing workers compensation benefits. The insurer filed a four-count complaint against the petitioner in the local circuit court, and the petitioner responded with a motion to dismiss. It was the petitioner s argument that the Commission would have jurisdiction over the fraud claims, instead of the circuit court. The circuit court agreed, noting that primary jurisdiction was with the Illinois Workers Compensation Commission. The insurer appealed the circuit court s order. The appellate court affirmed the order of the circuit court, noting that the Commission had special expertise in applying the Act. Because the insurer s complaint did not present a question of law which required a judicial interpretation of the Act, jurisdiction was properly with the Commission. In this case, the appellate court held that the Commission had special expertise in applying the Act, and required the insurer s fraud claims to be brought before the Commission instead of the circuit court. L-13

142 III. AVERAGE WEEKLY WAGE/AWARD CALCULATION A. The Appellate Court Held That an Injury to the Petitioner s Shoulder Should Be Subject to an Award Based on a Percentage Loss of Use of a Person As a Whole Instead of Loss of Use of an Arm In Forest Preserve District v. Illinois Workers Compensation Comm n, 2012 IL App (3d) WC, the Appellate Court, Third District, Workers Compensation Commission Division considered a case involving a right shoulder injury. The case proceeded to arbitration, and the arbitrator made an award of 25 percent loss of use of a person as a whole. The Commission adopted the decision of the arbitrator, and the circuit court further affirmed the decision. The respondent sought review of the case by the appellate court. On appeal, the respondent argued that an award based on a person as a whole was improper because the petitioner failed to establish that his injuries prevented him from pursuing the duties of his usual and customary line of employment, given that the petitioner returned to his regular job with no modification to his job duties. It was the respondent s contention that the award should have been based on a percentage loss of use of the arm, pursuant to section 8(e)(10) of the Act. The appellate court upheld the award based on a person as a whole because the plain language of the Act establishes that the arm and shoulder are distinct parts of the body. Therefore, if the petitioner sustained an injury to his shoulder, an award for a percentage loss of use of an arm would be improper. The court relied upon the petitioner s medical records to support its findings, and noted that those records clearly established an injury to the shoulder, as opposed to the petitioner s arm. In this case, the appellate court held that an injury to the petitioner s shoulder should result in an award based on a percentage loss of use of a person as a whole, and not an award based on a percentage loss of use of an arm. Despite the fact that shoulder injuries had routinely resulted in awards based on a percentage loss of use of an arm, the Commission looked to the language of the Act to conclude that this was improper. B. The Appellate Court Held That the Petitioner s Overtime and Incentive- Based Bonuses Should Be Included in the Calculation of His Average Weekly Wage In Arcelor Mittal Steel v. Illinois Workers Compensation Comm n, 2011 IL App (1st) WC, 961 N.E.2d 807, 356 Ill. Dec. 418 (1st Dist. 2011), the Appellate Court, First District, Workers Compensation Commission Division considered a case involving whether the petitioner s production bonus should be included in his average weekly wage. In this case, the petitioner worked at a steel mill, and his usual shift was eight hours. To meet production needs, however, the respondent often required the petitioner to work 12 hour shifts. The respondent referred to the 12 hours shifts as scheduled overtime, and those longer shifts were mandatory. Because of L-14

143 the mandatory nature of those longer shifts, those wages were included in the calculation of the petitioner s average weekly wage, at the regular hourly rate. The petitioner also requested that the production bonuses be included in his average weekly wage. The petitioner was a member of a union, and the collective bargaining agreement with the respondent included significant incentive pay related to the amount of steel produced by the plant. These production bonuses would be paid every two weeks, based on the amount of steel produced for that two-week period. The Commission held that the production bonuses should also be included in the calculation of the petitioner s average weekly wage. In reaching this conclusion, the Commission focused on two factors. First, the Commission noted that the bonuses were not gratuitous, and directly linked to production. Secondly, the Commission found that the bonuses were contemplated in the union contract, and constituted a large portion of the petitioner s compensation. As a result, the bonuses were properly included in the calculation of the petitioner s average weekly wage. The Commission s decision was upheld by the circuit court, and the respondent sent the case to the First District Appellate Court. In an unpublished decision, the court upheld the Commission s decision, as well as the reasoning included in the Commissions decision. C. The Appellate Court Held That an Employer Is Entitled to an 8(j) Credit for the Amount of TTD That Was Paid to the Petitioner While She Was Also Receiving Her Full Salary In Elgin Board of Education School District U-46 v. Illinois Workers Compensation Comm n, 409 Ill. App. 3d 943, 949 N.E.2d 198, 350 Ill. Dec. 710 (1st Dist. 2011), the Appellate Court, First District, Workers Compensation Commission Division considered whether a petitioner may be entitled to both temporary total disability benefits and her full salary, where accrued sick time was used while the petitioner was restricted from work. In this case, a teacher was injured and unable to work for a period of about four months. During that time, the petitioner used accrued sick time to receive her full salary while restricted from working. At arbitration, the petitioner s accident was found to be compensable, and she was granted TTD benefits for the period she was restricted from work. Because the petitioner had been receiving her full salary, however, the arbitrator granted the respondent an 8(j) credit for the amounts paid to the petitioner in sick leave. The petitioner had the arbitrator s decision reviewed by the Commission, arguing that the respondent should not be entitled to any credit. In reversing the arbitrator s decision, the Commission relied upon the case of Tee-Pak, Inc. v. Industrial Comm n. Pursuant to Tee-Pak, a respondent would not receive a credit for benefits it would have paid even if the petitioner had not suffered any injury. Essentially, Tee-Pak stands for the proposition that the respondent can only claim a credit for payments made pursuant to the Workers Compensation Act. Because the petitioner was able to use her sick leave whenever she wanted, regardless of whether she L-15

144 suffered an injury at work, the Commission did not allow the respondent a credit for those payments. The respondent brought the case to the First District Appellate Court, arguing that it had no intent to pay both temporary total disability benefits and the petitioner s full salary. The appellate court agreed with the respondent, reversing the Commission s decision. The appellate court noted that in Tee-Pak, the respondent had intended to pay both temporary total disability benefits and the petitioner s full salary. In this case, the respondent established that it was the petitioner s choice to use her accrued sick leave, but there was no intent for the respondent to pay both sick leave and TTD benefits. As a result, the appellate court concluded that the respondent was owed a credit for the amounts paid in sick leave, up to the amount owed for temporary total disability benefits. In this case, the appellate court limited the petitioner s ability to receive both salary and TTD benefits by looking to the intent of the respondent. D. The Appellate Court Held That the Petitioner Failed to Establish a Sufficiently Diligent Job Search So As to Support an Award for Odd-Lot Permanent Total Disability In Professional Transportation, Inc. v. Illinois Workers Compensation Comm n, 2012 IL App (3d) WC, a petitioner sustained bilateral knee injuries which ultimately required knee replacements. Following the knee replacement procedures, the petitioner was provided with permanent work restrictions. The respondent s expert physician opined that the petitioner would be able to return to his regular job as a van driver. The petitioner s treating physician, by way of a functional capacity evaluation, concluded that the petitioner would not be able to return to his regular job. At trial, the petitioner testified that he had applied to nine separate car dealerships looking for work. In addition, the petitioner stated that he reviewed the job section in the newspaper for a year and a half, and was unable to obtain employment within his restrictions. Based on this evidence, the arbitrator awarded the petitioner 65 percent loss of use of his right leg, but denied the petitioner s request for an odd-lot permanent total disability award. The petitioner appealed the case to the Commission, and the award was modified to provide the petitioner with permanent total disability based on the odd-lot theory. The circuit court affirmed the Commission s decision, and the respondent brought the case to the Appellate Court, Workers Compensation Commission Division. At the appellate court, the respondent argued that the medical evidence did not support a permanent total disability award, and that the petitioner s job search was not sufficiently diligent to support a permanent total disability award under the odd-lot theory. The appellate court agreed, noting that both the medical evidence and the job search were insufficient for a permanent total disability award. The appellate court explained that the petitioner s job search L-16

145 was meager, and found that he had not put forth enough effort to establish a permanent total disability award. Finally, the appellate court relied upon the petitioner s medical records in finding that he should be capable of some type of work. Although the medical evidence revealed a dispute regarding the types of work he could perform, all of the petitioner s physicians agreed that he would be capable of some level of employment. In this case, the appellate court held that the petitioner failed to present sufficient evidence to establish a permanent total disability award. Specifically, the appellate court indicated that a more thorough job search would be required before a permanent total disability award would be appropriate. IV. TEMPORARY TOTAL DISABILITY A. The Appellate Court Deferred to the Commission s Ability to Suspend TTD Benefits, Where the Petitioner Had Previously Refused Light Duty Work Within His Restrictions In Otto Baum Co., Inc. v. Illinois Workers Compensation Comm n, 2011 IL App (4th) WC, 960 N.E.2d 583, 355 Ill. Dec. 701 (4th Dist. 2011), the Appellate Court, Fourth District, Workers Compensation Commission Division considered a case where a respondent refused to pay temporary total disability benefits to a petitioner who had previously turned down light duty work within his restrictions. The petitioner was restricted from work following an accident August 6, On August 28, the petitioner was cleared for sedentary work, and returned to the job. One day later, the petitioner claimed he was reinjured, and was again restricted from working. On September 2, 2008, the petitioner was again offered light duty work within his restrictions. At that time, the petitioner refused the light duty work, claiming that he did not feel comfortable driving while taking pain medications. A week later, the petitioner again refused a light duty position, claiming that it was painful to drive to the job site. Finally, on November 11, 2008, the petitioner was cleared for sedentary work, and informed the respondent that he was ready to return. The respondent did not offer him a light duty position at that time, because he had previously refused light duty assignments. At arbitration, the petitioner was awarded TTD benefits from the day after the accident through the date he was initially cleared to return to work. The petitioner was also awarded TTD benefits for a short period after his re-injury after returning to sedentary work. The arbitrator found that the petitioner was not entitled to any additional TTD benefits because of his failure to take light duty positions within his restrictions on two occasions. Petitioner had the case reviewed by the Commission, and his TTD benefits were expanded. The Commission found the petitioner was owed TTD benefits for the period after he was cleared to L-17

146 return to sedentary work, when the employer refused to offer him a light duty position. The employer appealed, and the circuit court affirmed the Commission s decision. The respondent brought the case to the appellate court, and argued they had the right to terminate TTD benefits because of the petitioner s failure to cooperate with previous light duty offers. The appellate court agreed with the respondent s argument, but held that the Commission s award was not against the manifest weight of the evidence. In coming to this conclusion, the appellate court noted that it is within the Commission s discretion to terminate or suspend benefits in response to the petitioner s refusal to take a light duty job within his restrictions. The appellate court concluded that the Commission may have found that the petitioner s refusal was not so unjustified as to warrant the refusal to accommodate the petitioner s work restrictions or pay TTD benefits. In this case, the appellate court deferred to the Commission s broad discretion in determining when benefits can and should be suspended. This broad discretion is further supported by the manifest weight of the evidence standard normally applied by the appellate court in reviewing the Commission s decision. V. MEDICAL TREATMENT A. The Commission Holds That a Prosthetic Finger Is Reasonable and Necessary Medical Treatment Following an Amputation In Baisa v. PACTV/Prairie Packaging, 11 I.W.C.C (June 27, 2011), the Commission considered whether a prosthetic finger should be properly awarded under the Act following an amputation. In a work related accident, the petitioner s left middle finger was amputated. The respondent proceeded to pay the statutory amputation benefits, but denied the petitioner s request to provide a prosthetic finger. At arbitration, the respondent argued that the Act specifically requires the respondent to pay for a prosthetic for a work related loss of an arm, leg, hand, foot, eye or tooth. The respondent asserted that the Act did not contemplate the provision of a prosthetic for an amputated finger, and that the petitioner s award should be limited to the statutory amputation benefits. The arbitrator rejected this argument, holding that the respondent would have to pay for a prosthetic where it is both reasonable and necessary. Because the petitioner s physician suggested that the finger prosthetic would be both reasonable and necessary, and the respondent did not present any evidence to the contrary, the prosthetic finger was awarded. In this case, the Commission awarded the petitioner a prosthetic finger following an amputation, even though a prosthetic finger was not listed in the Act, while other body parts were specifically listed. L-18

147 VI. PENALTIES AND FEES A. The Appellate Court Held That Undisputed Portions of an Arbitration Award Must Be Paid Even Where Other Portions Are Being Appealed to Avoid Penalties and Fees In Jacobo v. Illinois Workers Compensation Comm n, 2011 IL App (3d) WC, 959 N.E.2d 772, 355 Ill. Dec. 358 (3d Dist. 2011), the Appellate Court, Third District, Workers Compensation Commission Division considered whether a respondent has an obligation to pay undisputed portions of an award while a case is on appeal. In that case, the respondent refused to pay undisputed portions of the petitioner s benefits until its entire appeal was resolved on an unrelated issue. Following arbitration, the respondent sought Commission review of the arbitrator s decisions regarding medical expenses, temporary total disability benefits and permanent total disability, and the petitioner sought review of the arbitrator s award regarding penalties and fees. Following the Commission s decision, the respondent did not pursue any further challenges, but the petitioner continued to appeal the denial of penalties and fees. Despite not seeking further review, the respondent did not pay the undisputed amounts of temporary total disability benefits, medical expenses and permanent total disability. The appellate court reversed the Commission s denial of penalties and fees, and remanded the case to the Commission for a further determination on the amounts of section 19(k) and (l) penalties and section 16 attorneys fees. Further, the appellate court held that any portion of the petitioner s benefits which are undisputed must be promptly paid or the respondent will be subject to penalties and attorneys fees pursuant to the Act. In this case, the appellate court held that undisputed portions of a workers compensation award must be paid to avoid penalties and fees, even if other portions of an award are still being appealed. B. The Appellate Court Held That the Petitioner Was Not Entitled to Section 19(k) Penalties for Failure to Authorize Medical Treatment That Had Not Yet Been Completed In Hollywood Casino-Aurora, Inc. v. Illinois Workers Compensation Comm n, 2012 IL App (2d) WC, the Appellate Court, Second District, Workers Compensation Commission Division considered whether a petitioner can be awarded 19(k) penalties for the respondent s refusal to authorize medical treatment that has not yet taken place. In that case, the petitioner needed a battery replacement for her spinal cord stimulator. The treating physician sent correspondence to the claims adjuster seeking authorization for the battery replacement procedure, but did not receive a final response for a number of months. Approximately eight months after the initial request, the petitioner filed a petition for penalties and fees for failure to authorize the battery replacement procedure. L-19

148 The battery replacement procedure was authorized shortly after the petition for penalties and fees was filed, but the petitioner continued to seek penalties and fees. The Commission awarded the petitioner $40,750 in penalties under section 19(k) of the Act, but denied attorneys fees under section 16. The respondent sought judicial review of the Commission s decision, and the circuit court reversed the Commission s decision. The circuit court concluded there was no legal basis for awarding penalties and fees where there was a delay in authorizing treatment. The petitioner appealed the circuit court s decision to the appellate court. The appellate court affirmed the ruling of the circuit court, relying on the statutory language of section 19(k) of the Act. Specifically, the appellate court explained that 19(k) dealt with delay of payment or underpayment of benefits. Because the medical treatment requested was never actually completed, payment was never due. The appellate court held there was no provision in the Act authorizing the Commission to assess penalties against an employer for a delay in authorizing reasonable and necessary medical treatment. In this case, the appellate court held that the Act did not allow for penalties to be assessed against a respondent for failure to authorize reasonable and necessary medical treatment. VII. JURISDICTION A. The Respondent s Failure to Comply With the Provisions Governing a Review by the Commission Did Not Deprive the Commission of Jurisdiction Because the Employer Had Substantially Complied With Those Rules In Shafer v. Illinois Workers Compensation Comm n, 2011 IL App (4th) WC, the Appellate Court, Fourth District, Workers Compensation Commission Division considered a case in which the respondent failed to include the correct case number on a petition for review. The claimant had filed Applications for Adjustment of Claim indicating injury dates of November 23, 2007 and November 30, Both cases proceeded to arbitration, and the arbitrator issued two separate decisions on April 10, The arbitrator found both claims to be compensable, and additionally authorized a surgical consultation that had previously been denied by the respondent. On May 23, 2008, the respondent filed a single petition for review challenging the arbitrator s findings with regard to both claims. The petition for review indicated the respondent was appealing both of the arbitrator s decisions issued on April 10, The petition accurately identified the case number associated with the first claim, but the second claim was misidentified as 07 WC 46127, instead of 07 WC The claimant did not object to the incorrect case number, but both parties were notified prior to oral arguments that they should be prepared to discuss whether the Commission had jurisdiction to review the incorrectly numbered claim. L-20

149 The Commission issued a decision finding that they properly had jurisdiction over the incorrectly numbered claim. The Commission found that the incorrect number amount[ed] to a clerical typographical error. The Commission concluded that the employer had substantially complied with the statute and rules allowing the review to proceed. In that same decision, Commissioner Yolaine Dauphin dissented, noting that strict compliance with the Act and the rules is required to enable the Commission to exercise jurisdiction on a review. On review by the circuit court, the claimant s arguments were rejected, and the Commission s decision was affirmed on all issues. The case was then appealed to the appellate court, which again affirmed the decision. The appellate court noted that the respondent had correctly identified the names of the parties and the date on which the arbitrator s decisions were issued. The appellate court concluded that the typographical error was not sufficient to withdraw jurisdiction from the Commission, and held that the Commission was correct in finding it had jurisdiction over the mis-numbered claim. In this case, the typographical error was not caught by either party, and the appellate court found that there was sufficient information to identify which claims were being appealed, even though the respondent had mis-numbered one of the claims. B. Substantial Compliance With the Procedures for Appealing a Case to the Circuit Court Is Not Found Where the Petitioner Failed to File a Petition for Judicial Review Within 20 Days After Receipt of the Commission s Decision In Gruszeczka v. Illinois Workers Compensation Comm n, 2012 IL App (2d) WC, the Appellate Court, Second District, Workers Compensation Commission Division considered a case where the petitioner failed to comply with the time limits for filing a petition for judicial review. In that case, the arbitrator denied the petitioner s claim for benefits, and the Commission upheld the arbitrator s decision. The record reveals that the Commission s decision was issued on April 20, On May 4, 2009, the petitioner mailed his petition for judicial review to the circuit court in DeKalb County. On May 14, 2009, the petition for judicial review was filedstamped by the circuit clerk, more than 20 days after the Commission s decision was issued. Based on those dates, the respondent filed a motion to dismiss the petition for judicial review arguing that the petition was not timely filed. The motion to dismiss was based on section 19(f)(1) of the Act, which states that judicial review of a Commission decision shall be commenced within 20 days of receipt of the notice of decision. The motion to dismiss was ultimately denied by the circuit court, but the court also affirmed the Commission s denial of benefits. Both the petitioner and respondent appealed that decision to the Second District Appellate Court. The petitioner argued that the denial of benefits was improper, and the respondent argued that the motion to dismiss was improperly denied. The appellate court reversed the circuit court, and found that the circuit court lacked subjectmatter jurisdiction to hear the judicial review. The appellate court relied on a strict statutory interpretation of section 19(f)(1), and found that the petitioner failed to comply with the 20-day L-21

150 window to file the petition for judicial review. The appellate court specifically noted that the Act does not include a mailbox rule and explained that the Act required the petition to be filestamped within 20 days, not just mailed. In this case, the appellate court seems to have reached its limit with regard to flexibility in the Act s appellate procedures. Where typographical errors and substantial compliance were allowed, the failure to comply within the time period to file an appeal was strictly construed. C. The Appellate Court Found That the Circuit Court Was the Proper Venue for Interpreting the Provisions of the Act, Rather Than the Commission In Hastings Mutual Ins. Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) , the Appellate Court, First District considered a complex case involving an attempt to cancel a workers compensation insurance policy and parallel proceedings before the Commission and in the circuit court. In that case, the petitioner filed a claim against Ultimate Back Yard and its insurer, Hastings Mutual. For approximately five months, the insurer was providing temporary total disability and medical benefits to the petitioner. At that point, Hastings withdrew its acceptance of the petitioner s claim and pursued a declaratory judgment action based on its cancellation of the workers compensation insurance for Ultimate Back Yard. Before the circuit court, Hastings Mutual argued that it sent a notice of cancellation to Ultimate Back Yard on January 14, 2008, prior to the injured worker s accident. In addition, Hastings Mutual filed a motion to stay the proceedings with the Commission. Both the petitioner and Ultimate Back Yard filed motions to dismiss the declaratory judgment action, as well as responses to the motion to stay the Commission s proceedings. The next month, the petitioner proceeded with the workers compensation claim, and an arbitrator ruled against Hastings Mutual on the issue of insurance coverage. Shortly thereafter, the trial court ruled against Hastings Mutual on the declaratory judgment, and declared the motion to stay moot, in light of the arbitrator s similar decision. The circuit court also granted the motion to dismiss filed by the petitioner and Ultimate Back Yard, finding that the Commission had authority to decide the coverage issue. Rather than consenting to proceeding at the Commission, Hastings Mutual filed another motion to stay or sever the Commission proceedings on the insurance coverage issue. The circuit court denied Hastings Mutual s motion to stay, and Hastings took the case to the appellate court. On appeal, the petitioner argued that the insurance coverage issued required the specialized expertise of the Commission. In response, Hastings Mutual argued that its appeal presented an issue of law with regard to its compliance with section 4(b) of the Act. Ultimately, the appellate court held that Hastings appeal presented an issue of law, which would best be handled by the circuit court. The appellate court noted that the central issue was whether Hastings complied with the statutory requirements of section 4(b) in cancelling the workers compensation policy. The appellate court reversed the circuit court, and directed the L-22

151 circuit court to stay the proceedings before the Commission until the coverage issue was resolved. In this case, the appellate court decided that the circuit court was better equipped to resolve a dispute about the interpretation of the Workers Compensation Act. In doing so, it took the coverage dispute out of the hands of the Commission. VIII. SUBROGATION/THIRD-PARTY PRACTICE A. The Appellate Court Held That a Trial Court May Not Reduce a Respondent s Workers Compensation Lien in the Petitioner s Civil Case In Johnson v. Tikuye, 409 Ill. App. 3d 37, 948 N.E.2d 298, 350 Ill. Dec. 229 (1st Dist. 2011), the Appellate Court, First District considered a case where a petitioner sought to have a respondent s workers compensation lien reduced by the court to conclude a civil case. In this case, a driving instructor was injured when a student crashed her vehicle during a driving lesson. The driving instructor filed a workers compensation claim and received an award. In addition, the driving instructor brought a civil claim for negligence against her student. Following binding arbitration in the civil case, judgment was entered for the instructor s damages. The amount ordered following the civil arbitration was less than the amount of the workers compensation award. As a result, the respondent filed a motion with the circuit court to enforce its lien for the entire amount of the civil arbitration award. In opposition to this motion, the driving instructor filed a motion to have an evidentiary hearing to determine what portion of the workers compensation award should be paid from the funds awarded in the civil arbitration. The circuit court reduced the workers compensation lien to approximately one third of the total amount paid in workers compensation benefits. The respondent appealed, and the appellate court reversed the trial court s ruling. The appellate court concluded that section 5(b) of the Act did not allow the circuit court to reduce the amount of the respondent s workers compensation lien. The plain language of that section dictates that the lien may be maintained to the extent of workers compensation benefits paid by the respondent. Essentially, the circuit court had no authority to reduce the respondent s lien. In this case, the appellate court held that the respondent was entitled to collect its entire workers compensation lien up to the amount awarded in the petitioner/plaintiff s civil case. L-23

152 B. The Appellate Court Held That a Respondent Cannot Be Liable in a Contribution Action to a Third Party, Where It Has Settled a Workers Compensation Claim and Waived Its Rights to a Workers Compensation Lien In McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) , 959 N.E.2d 186, 355 Ill. Dec. 158 (2d Dist. 2011), the Appellate Court, Second District considered a case where a third-party contractor filed a contribution suit against a respondent who had previously settled a workers compensation claim and waived its right to a lien. In that case, the petitioner was injured while working at a construction site and proceeded to file a workers compensation claim. The workers compensation case was settled, and the settlement contracts reflected that the respondent would waive any right to a workers compensation lien under section 5(b) of the Act. Following the resolution of the workers compensation claim, the petitioner filed a negligence claim against another contractor at the job site. Ultimately, that case was settled for an amount exceeding the workers compensation claim, and the third-party contractor specifically reserved the right to seek contribution against the respondent. The third-party contractor proceeded to file a contribution claim against the respondent, and the respondent filed a motion to dismiss. The circuit court dismissed the contribution action, noting that the respondent s liability in this case would be capped at the amount of the workers compensation benefits it had paid to the petitioner. Because the respondent had waived its lien rights, there is no possibility for additional recovery. The third-party contractor then took the case to the appellate court. The appellate court upheld the circuit court s ruling, noting that the respondent was not a party to the settlement agreement between the petitioner and the third-party contractor, where the third-party contractor reserved the right to seek contribution. Further, the appellate court noted that the respondent s lien waiver would eliminate its contribution liability. Finally, the appellate court noted there was no evidence of bad faith by either the petitioner or the respondent in reaching a settlement with regard to the workers compensation claim. In this case, the appellate court held that the respondent s liability for contribution was eliminated by waiving its rights to a workers compensation lien, even where the third-party contractor had specifically reserved the ability to seek contribution against the respondent in settling the civil case. L-24

153 Joseph K. Guyette - Associate Joe began his career with Heyl Royster, clerking in the Urbana office. Following graduation from law school, he joined the firm's Urbana office as an associate in August of During law school, he served as Articles Editor for the University of Illinois Journal of Law, Technology & Policy. Joe concentrates his practice in the areas of workers' compensation defense, professional liability and employment matters. Joe devotes a portion of his practice to representing the firm's clients at depositions of plaintiffs and fact witnesses in asbestos personal injury matters. Joe has taken several bench and jury trials to verdict, and has drafted and argued numerous dispositive motions. He has handled workers' compensation arbitration hearings at venues throughout the state, and has argued multiple cases before the Workers' Compensation Commission. He regularly handles depositions of expert witnesses and treating physicians in both civil and workers' compensation matters. Professional Recognition Named to the 2012 Illinois Super Lawyers Rising Stars list. The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation. Professional Associations Illinois State Bar Association American Bar Association Champaign County Bar Association Court Admissions State Courts of Illinois United States District Court, Central District of Illinois Education Juris Doctor, University of Illinois, 2004 Bachelor of Science-Environmental Science, Bowling Green State University, 2001 Publications "Review of a Workers' Compensation Claim," Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2011) "Settlement Contracts New Law and What You Need to Know," Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2009) L-25 Learn more about our speakers at

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155 DOES ANYBODY REALLY KNOW WHAT TIME IT IS? NEW ARBITRATORS, VENUES AND ZONES: A VIEW FROM THE TRENCHES Presented by: Craig S. Young cyoung@heylroyster.com Peoria, Illinois Kevin J. Luther kluther@heylroyster.com Rockford & Chicago, Illinois Bruce L. Bonds bbonds@heylroyster.com Urbana, Illinois Toney J. Tomaso ttomaso@heylroyster.com Urbana, Illinois Daniel R. Simmons dsimmons@heylroyster.com Springfield, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2012 Heyl, Royster, Voelker & Allen M-1

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157 Craig S. Young - Partner Craig is Chair of the firm's workers' compensation practice group. He began his career at Heyl Royster as a summer clerk while in law school and became an associate in the firm's Peoria office in He has spent his entire career with Heyl Royster and became a partner in He is recognized as a leading workers' compensation defense lawyer in the State of Illinois and has handled all aspects of Illinois workers' compensation litigation including arbitrations, reviews, and appeals. Craig has developed expertise in the application of workers' compensation to certain industries including hospitals, trucking companies, municipalities, large manufacturers, school districts, and universities. In addition to his expertise in litigated cases, Craig has developed a reputation for counseling employers regarding overall management of the workers' compensation risk. Through seminars and presentations to local and national industry groups, in-house meetings, regular claims review analysis, and day-to-day legal counsel, Craig assists his clients in looking beyond each individual case in an effort to reduce overall workers' compensation expense. His comprehensive approach to workers' compensation issues also includes third-party liability and lien recovery issues. Currently, Craig serves as Chair of the Workers' Compensation Committee of the Defense Research Institute. He has also chaired DRI's Program Committee, and in that role, chaired nationally acclaimed teleconferences and seminars on specific issues relating to workers' compensation defense. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Craig is actively involved in supporting many local charitable organizations and civic causes. He was the 2008 recipient of the Peoria County Bar Association's Distinguished Community Service Award. Public Speaking Workers Compensation Reform in Illinois Presented in numerous locations (2012) Elements of a Winning Workers Compensation Program Downstate Illinois Occupational Safety & Health Day (2010) Family Medical Leave Act (FMLA); Americans with Disabilities Act (ADA); and Workers Compensation Risk Control Workshop (2010) Medical Science, Industrial Commission Science - Understanding the Industrial Commission's Approach to Medical Issues Lorman Education Services (2008) The Employee Who Can't Return to Work: Wage Differentials, Vocational Rehabilitation & Job Placement Lorman Education Services (2008) Medicare Set-Aside Agreements-The Rest of the Story Defense Research Institute (2007) Resolving (or Alleviating) the Chronic Pain Case Heyl, Royster, Voelker & Allen (2007) Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Peoria County Bar Association 2008 Distinguished Community Service Award Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Board Member and Secretary-Treasurer) Defense Research Institute (Workers' Compensation Committee - Chair) Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, University of Illinois, 1985 Bachelor of Arts-History (Summa Cum Laude), Bradley University, 1982 M-2 Learn more about our speakers at

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159 Kevin J. Luther - Partner Kevin has spent his entire legal career at Heyl Royster, beginning in 1984 in the Peoria office. He has practiced in the Rockford office since it opened in He supervises the workers compensation, employment law, and employer liability practice groups in the firm s Rockford and Chicago offices. He is the immediate past chair of the firm s statewide workers compensation practice group. Kevin concentrates his practice in the areas of workers compensation, employment law, and employer liability. He has represented numerous employers before the Illinois Human Rights Commission and has arbitrated hundreds of workers' compensation claims. He has also tried numerous liability cases to jury verdict. Kevin has co-authored a book with Bruce Bonds of the firm's Urbana office entitled Illinois Workers' Compensation Law, Edition, which was published by West. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. The Second Edition of this treatise is due for publication in the Spring of He has also authored a law review article on Illinois employment law. Kevin is a frequent speaker to industry and legal professional groups. Kevin is a member of the Winnebago County Bar Association in its workers' compensation and trial sections. He is a member of the State Bar of Wisconsin, Illinois State Bar Association, and the American Bar Association, and has actively participated in sections relevant to his practice areas. He is a member of the Illinois Association of Defense Trial Counsel, formerly on the Board of Directors. Significant Cases Arlene Bernardoni v. Huntsman Chemical Corp. - Applied Frye principle to Illinois workers' compensation in the defense of an occupational disease/exposure claim. Richard Urbanski v. Deichmueller Construction Co. - Defined jurisdictional issue in workers' compensation review. Publications Co-author, "Survey of Illinois Law: Employment Law," Southern Illinois University Law Journal (2010) Co-author, Illinois Workers Compensation Law, ed. (Vol. 27, Illinois Practice Series), published by West (2009) Co-author, "Economic Disability and Earning Capacity: A Historical Analysis for Wage Differential Claims," Illinois Defense Counsel Quarterly Monograph (2006) Public Speaking A Program on the Extent to Which Employers May Monitor/Restrict Employees St. Mary s Occupational Health & Wellness (2012) Workers Compensation, HIPAA and Employment Retaliatory Discharge Issues St. Mary s Occupational Health & Wellness (2011) Workers Comp Reform - What Does it Mean to You? Williams Manny (2011) Workers Compensation Case Law Update Winnebago County Bar Association (2011) Professional Recognition Martindale-Hubbell AV rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Professional Associations Winnebago County Bar Association Illinois State Bar Association State Bar of Wisconsin American Bar Association Illinois Association of Defense Trial Counsel Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern and Central Districts of Illinois United States Court of Appeals, Seventh Circuit Education Juris Doctorate, Washington University School of Law, 1984 Bachelor of Arts-Economics and Mathematics (Summa Cum Laude), Blackburn University, 1981 M-3 Learn more about our speakers at

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161 Bruce L. Bonds - Partner Bruce is a past Chair of our state-wide workers' compensation practice group and has spent his entire legal career with Heyl Royster beginning in 1982 in the Peoria office. He concentrates his expertise in the area of workers' compensation, third-party defense of employers, and employment law. He served as a technical advisor to the combined employers group in the negotiations which culminated in the 2005 revisions to the Illinois Workers' Compensation Act. More recently, Bruce worked as a technical advisor to the Illinois Chamber of Commerce as well as a number of Illinois legislators and State agencies in the process that resulted in the 2011 amendments to the Illinois Workers' Compensation Act. Bruce was appointed by Mitch Weiss, Chairman of the Illinois Workers' Compensation Commission, to a committee of attorneys who reviewed and made recommendations for revisions to the Rules Governing Practice before the Workers' Compensation Commission. With extensive experience before the Illinois Workers' Compensation Commission, Bruce has defended employers in thousands of cases during the course of his career. As a result of his experience and success, his services are sought by self-insureds, insurance carriers, and TPAs. Bruce is an adjunct professor of law at the University of Illinois College of Law where he has taught workers' compensation law to upper-level students since Bruce co-authored a book with Kevin Luther of the firm's Rockford office entitled Illinois Workers' Compensation Law, Edition, which was published by West. The book provides a comprehensive, up-to-date assessment of workers' compensation law in Illinois. The Second Edition of this treatise is due for publication in the Spring of Bruce is a frequent speaker on workers' compensation issues at bar association and industrysponsored seminars. Bruce has served as Vice-Chair of the ABA Committee on Employment, Chair of the Illinois State Bar Association Section Council on Workers' Compensation, and currently serves on the Employment Law Committee of the Chicagoland Chamber of Commerce and the Illinois Chamber of Commerce Workers' Compensation Committee. He has been designated as one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin; another survey published by Chicago magazine named Bruce one of the "Best Lawyers in Illinois" for Professional Recognition Martindale-Hubbell AV Rated Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Named to the 2012 Illinois Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation. Professional Associations American Bar Association (Past Vice-Chair of Employment Law Committee) Illinois State Bar Association (Past Chair Workers' Compensation Law Section Council) Champaign County Bar Association Illinois Association of Defense Trial Counsel (Member, Workers' Compensation Committee) Defense Research Institute Illinois Self-Insurers Association Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Education Juris Doctor, Washington University School of Law, 1982 Bachelor of Arts-Finance, University of Illinois, 1979 M-4 Learn more about our speakers at

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163 Daniel R. Simmons - Partner Dan concentrates his practice in the areas of workers' compensation and general insurance defense, including auto liability, premises liability and thirdparty defense of employers. Since graduation from law school in 1984, he has spent his entire legal career at Heyl Royster in the Springfield office. He became a partner in Dan has extensive litigation experience. He has taken numerous cases to jury verdict both in state and federal courts. Additionally, he has arbitrated hundreds of workers' compensation claims before the Illinois Workers' Compensation Commission. Dan appreciates that his clients' goal is to conclude claims in the most efficient, economical means possible and strives to achieve that goal through motion practice, settlement or trial. Dan is a frequent author and lecturer on civil liability and workers' compensation issues. His speaking is both to clients and to Illinois attorneys for continuing legal education. Dan continues to provide writing and speaking services to the Property Loss Research Bureau/Liability Insurance Research Bureau's annual conference that is routinely attended by over 2,500 senior claims professionals from around the United States. Professional Recognition Martindale-Hubbell AV Rated Professional Associations Lincoln-Douglas American Inn of Court (past president and program director) American Bar Association Illinois State Bar Association Sangamon County Bar Association Central Illinois Claims Adjusters' Association Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit Education Juris Doctor, University of Iowa, 1984 Bachelor of Arts (Magna Cum Laude) - Political Science, Speech and Humanities, Augustana College, 1981 Dan is a past president and program director of the Lincoln-Douglas American Inn of Court. The Inn is designed to promote legal education, civility and collegiality among members of the bar. M-5 Learn more about our speakers at

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165 Toney J. Tomaso - Partner Toney is a partner in the Urbana office who concentrates his practice in the areas of workers' compensation, third-party defense of employers, asbestos class action litigation, insurance coverage issues and automobile liability claims. Toney has successfully defended hundreds of workers' compensation claims before various arbitrators throughout the State of Illinois, as well as before all panels of the Illinois Workers' Compensation Commission. Toney was a member of a three attorney trial team which handled a class action lawsuit arising out of a medical malpractice class action which lasted approximately eight weeks in East Central Illinois. During the course of this litigation, he was required to depose approximately one-half of the class, prepare defense experts, and participate in all phases of the eight-week trial. Professional Associations Champaign County Bar Association Illinois State Bar Association American Bar Association Will County Bar Association Illinois Trial Lawyers Association Illinois Association of Defense Trial Counsel Court Admissions State Courts of Illinois United States District Court, Central District of Illinois Education Juris Doctor, Louisiana State University, 1995 Bachelor of Arts (Golden Key Honor Society), University of Illinois, 1992 Significant Cases Land v. Montgomery - Eight week medical malpractice class action lawsuit. Public Speaking Case Study: Respondent Attorney Trial Strategy Perspective SafeWorks Illinois 17th Annual Work Injury Conference, Champaign, IL (2009) Workers Compensation Law Update Lorman Seminar (2008) Arising Out of Issue Do They Really Have All the Facts They Need Heyl Royster (2008) Recent Developments In Workers Compensation Risk and Insurance Management Society (2007) M-6 Learn more about our speakers at