WCLA MCLE 11-12-12

1. WCLA MCLE 11-12-12 • AMA Guides: Illinois Workers’ Compensation Commission Decisions • Monday November 12, 2012 • Springfield Hilton; Springfield, IL • 12 noon to 3pm • 3 hours general CLE credit

2. Commission Decisions from 1981-2011 • 1979-1980 General Assembly debated what standards the Commission should use to determine permanency; All, including medical guidelines were rejected • HB 3250: Starting January 1, 1981, all decisions of the Commission shall set forth in writing the reasons for the decision • Until September 1, 2011, llinois Workers’ Compensation Act remained “silent” as to how the Commission was supposed to determine permanency when the injury was less than 100% loss of use of the body part

3. Factors to Be Considered in PPD81 IIC 001 • Occupation • Age • Inability to engage in certain kinds of work or activities • Skill • Training • Pain • Stiffness • Spasms • Limitation on motion • Tenderness • Atrophy • Lack of coordination • Soreness • Diminished reflexes • Dizziness • Other relevant criteria • “PHYSICAL IMPAIRMENT IS THE FIRST CONSIDERATION”

4. What the Commission Says About PPD The permanent results from various types of injuries are not the same in each case nor are they static over time. Not only do permanent results of particular disabilities differ among individuals (some heal better than others, some have sufficient training and ability to return to work where others can not) but the results of injuries also change over time as medical technology and society changed. The availability of work that can be done by people with physical limitations has increased as medical and industrial technology has changed. Availability and expertise of physical and vocational rehabilitation experts is improving, and employers are increasingly willing to provide rehabilitation or different work to employees with limitations due to industrial injuries. All of these factors must be reflected in Commission decisions. As reality further changes, parties must bring in evidence of relevant medical, technological and social conditions to insure that Commission decisions accurately reflect them. (page 5)

5. 820 ILCS 305/8.1b Determination of Permanent Partial Disability For accidental injuries that occur on or after September 1, 2011, permanent partial disability 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)the reported level of impairment pursuant to subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee's future earning capacity; and (v) 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.

7. Commission Decisions Without Impairment Ratings Jaelene Bryan v. Pinckneyville Correctional Center 11WC047483 Terrence Davis v. City of Springfield 12WC009378 Terry Wadkins v. Pinckneyville Correctional Center 12WC002866 Cheryl Edwards v. State of Illinois (Murray Center) 12WC007449 Ricky Belton Lee, Jr. v. Chester Mental Health Center11WC041595 Derek Richardson v. Tamms Correctional Center 12WC008263 Scott Day v. City of Bloomington 11WC047768

8. Jaelene Bryan v. Pinckneyville Correctional Center 11WC047483 • Date of Arbitration: 02/22/2012 (Granada) • Accident: 12/01/2011 • 35 year old correctional Officer • Foot caught in phone cord causing her left leg to twist & strike the floor • MRI: posterior horn incomplete medial meniscus tear • Symptoms: stopped running 3-7 days a week, gained 15 pounds in 3 months, walking and standing on concrete aggravated pain; concurrent employment as a photographer affected due to difficulty kneeling • “Arbitrator notes that no impairment report is contained in the record. However this does not preclude the Arbitrator from making a finding of PPD, since no single factor, or lack thereof, shall be the determining factor. This interpretation of the Act has been confirmed by the unanimous vote of the Commission… ” • 5% loss of use of the left leg • 3-23-12 Petitioner filed Review • 6-26-12 Review voluntarily dismissed • FINAL?

9. Terrence Davis v. City of Springfield 12WC009378 • Date of Arbitration: 06/11/2012 (Gallagher) • Date of Accident: 02/28/2012 • 45 year old Police Officer • Hydroplaned driving on wet pavement, went through a fence and struck a pole injuring left hand and arm • Diagnosis: possible contusion of the 5th finger’s metacarpal joint • Symptoms: pain when the hand is bumped

10. Terrence Davis v. City of Springfield 12WC009378 (cont.) • “The Arbitrator initially finds that at the time of the trial counsel for both the Petitioner and Respondent waived their rights to an AMA impairment rating” • “The Arbitrator is not able to use an AMA impairment rating in determining the extent of the PPD because both Petitioner and Respondent’s counsel waived their rights to same.” • “Petitioner was 45 years old and employed as a police officer…there was no evidence of any effect on future earning capacity.” • “Treating physician diagnosed as having a contusion of the MP joint” • “The Arbitrator further finds that the Petitioner’s age, employment, and future earning capacity not relevant to any determination of permanent partial disability.” • 2% loss of use of the hand awarded • Decision date 7-11-12; No review filed • Section 19(b): “Unless a petition for review is filed…the decision shall become the decision of the Commission and in the absence of fraud shall be conclusive.”

11. Terry Wadkins v. Pinckneyville Correctional Center12WC02866 • Date of arbitration: 06/12/2012 (McCarthy) • Date of Accident: 12/17/2011 • 54 year old Correctional Officer • Tendonosis with underlying moderate AC joint osteoarthritis • “Section 8.1(b) of the Act states that five factors must be considered in determining the extent of permanent partial disability, for accidents occurring on or after September 1, 2011.” • “Here there was no physicians report using the AMA Guides offered into evidence.” • Analysis of treating records and full duty release but subsequently retired • “The Arbitrator believes the positive findings reported by Dr. Choi, including the MRI, provide a basis for an award.” • 2% loss of person as a whole awarded • 8-22-12 Cross Reviews filed

12. Cheryl Edwards v. State of Illinois (Murray Center) 12WC007449 • Date of Arbitration: 07/06/2012 (Granada) • Date of Accident: 01/17/2012 • 53 year old Mental Health Tech II • Attacked by resident resulting in cervicalgia; Discharged from care on 04/25/2012 with no complaints of pain; Petitioner testified her symptoms wax and wane and are exacerbated by strenuous activity • “Applying this standard to this claim, the Arbitrator first notes: Petitioner is a Mental Health Tech II: is 53 years old: has no alleged lost future earning capacity; and has complaints of neck and back pain corroborated by the medical records that show a diagnosis of Cervicalgia. The Arbitrator further notes that there was no reported level of impairment pursuant to the AME Guides to the Evaluation of Permanent Impairment. Based on these factors, the Arbitrator concludes that the Petitioner has sustained injuries resulting in 1% loss of use of the person as a whole.” • Decision dated 8-9-12; No Review filed; FINAL

13. Ricky Belton Lee, Jr. v. Chester Mental Health Center11WC041595 • Date of Arbitration: 07/10/12 (Luskin) • Date of Accident: 09/27/11 • 30 year old Security Therapy Aid • While separating two fighting residents, injured his left hand • Diagnosed with a traction injury and treated for numbness; testified that his left hand is numb for about 15 minutes in the morning • “Applying this standard to this claim, the Arbitrator first notes that no level of impairment was determined by any physician. The Arbitrator therefore relies on the other four factors to make a determination. The petitioner was 30 years old at the time of the injury and was employed as a Security Therapy Aid. He has continued to work in that capacity at the time of trial and it appears he will be able to continue doing so without difficulty or medical impairment. The petitioner’s complaints are corroborated by the medical records, but are consistent with a sprain/strain injury to his non-dominant hand. Following conservative care, the petitioner returned to his regular job duties.” • 3.5% loss of use of the left hand • Decision 8-1-12; no review filed; FINAL

14. Derek Richardson v. Tamms Correctional Center12WC08263 • Date of Arbitration: 07/12/12 (Luskin) • Date of Accident: 02/11/12 • 32 year old Correctional Officer • Twisted knee while kneeling and felt a pop; 04/12/12 arthroscopic knee surgery; 06/06/12 released from care noting minimal soreness • Testified that he had persistent soreness, stair claiming was difficult and occasionally uses over the counter medication for symptom control • “Applying this standard to this claim, the Arbitrator first notes that no AMA guideline impairment rating was determined by any physician. The Arbitrator must therefore rely exclusively on the other four factors in making a determination.” • “The petitioner is a correctional officer, 32 years old at the time of the incident and having just turned 33 years old at the time of the trial. He has continued to work in his pre-injury capacity and not evidence of any earning impairment is apparent from the documentation or testimony. Lastly, the petitioner testified as to some residual complaints in his knee which are consistent with the knee surgery delineated in the medical records.” • 17.5% loss of use of the left leg • Decision 8-1-12; no review filed; FINAL

15. Scott Day v. City of Bloomington11WC047768 • Date of Arbitration: 07/17/12 (Pulia) • Date of Accident: 11/22/11 • 33 year old Police Officer • Petitioner stepped on a big wheel causing him to go down into the splits, twisted right knee • Diagnosed as having a PCL sprain of the right knee • Unable to return to playing softball; unable to be recertified for Pressure Points and Control Tactics; squatting was painful • “In the case at bar the parties stipulated that neither one was going to offer into evidence the reported level of impairment pursuant to subsection (a)” • “Only 33 years of age”(?) • Failure to recertify “could negatively impact his overall earning capacity in the future” • Based on “treating medical records, petitioner sustained…” • 5% loss of use of the left leg awarded • Decision 8-3-12; no review filed; FINAL; settled?

16. Fundamentals of AMA Guides • “Impairment Rating: Consensus–derived percentage estimate of loss of activity” (5) • “The relationship between impairment and disability remains both complex and difficult, if not impossible to predict.”(5) • “The Guides is not intended to be used for direct estimates of work participation restrictions.” (5) • “In disability evaluation, the impairment rating is one of several determinants of disablement… most amenable to physician assessment..integrated with contextual information..” (6) (“Doctors do impairment; Judges do disability”) • “Precision, accuracy, reliability, and validity are critical issues in determining impairment.” (7)

17. Fundamentals of AMA Guides • Table 1-6: Determine CDX and then adjust based on PE, CS, FH. (14) • Table 2-1: “greatest dysfunction; ” “method producing higher rating must be used” (20) • “Clinical knowledge, skill and ability” (20) • Treating physicians are not independent and are subject to greater scrutiny (23) • “With the patient’s consent” (24) • “Only after the status of MMI is determined” (24) • “A clear, accurate and complete report must be provided” (28) • Data collection form “must be used to document the data and be attached with the final report” (28) • Three step process and discussion “is required” (28)

18. AMA Guides Commission Decisions • Frederick Williams v. Flexible Staffing, Inc. 11WC046390 • Zachary Johnson v. Central Transport 11WC041328

19. Frederick Williams v. Flexible Staffing11WC046390Facts • DA 10-7-11 • 45 year old welder grabs for 400 lb rail • Right istal biceps tendon rupture • Dr. Aribindi performs surgery • RTW full duty, despite complaints; no job • Dr. Mark Levin does AMA impairment rating: 6% UEI; 4% WPI • Arbitrator’s Decision 7-24-12 • Cites Section 8.1b (factors i-v)

20. Frederick Williams v. Flexible Staffing11WC046390Factor (i) Reported Level of Impairment • Dr. Levin’s report admitted; identifies himself as CEDIR (AADEP certification) • 6% UEI and “disability” of WP 4% • “Impairment does not equate to PPD” • “Does not include loss of range of motion” or “other measurements” (see 8.1b(a)) • DX Elbow Regional Grid, Table 15-4, pg. 399: CDX 1; Distal biceps tendon rupture; Residual loss of strength, functional with normal motion; default position C is 5% UEI (3,4,5,6,7) • Physical Exam PE grade modifier 2 because “moderate problem” (Table 15-8, pg. 408; range of motion moderate decrease; 12%-23% UEI?); Arbitrator notes: “moderate problem” • Clinical Studies CS grade modifier NA because “diagnosis was biceps tendon rupture;” probably meant “If a finding is used for placement of a diagnosis within a specific class in a DBI grid, that same finding cannot be used as a grade modifier.” section 15.3c, pg.407; Arbitrator says “surgical report could have been used in this way” (Table 15-9, pg. 410; GMCS =2?) • Table 2-1, Fundamental Principles of the Guides, pg.20, #12: “If the Guides provides more than one method to rate a particular impairment or condition, the method producing the higher rating must be used.” • Functional History FH grade modifier 1 because Quick DASH score 23, Arbitrator notes that it is not included so she cannot “review his findings.” (Table 15-7, pg. 406) • Net Adjustment = (GMPE-CDX) + (GMCS-CDX) + (GMFH-CDX) = (2-1) + NA + (1-1) = 1 + NA + 0 = NetAdjustment +1 • Move one space to right from default C 5% = 6% UEI x 60% = 4%WPI (Table 15-11, pg. 420)

21. Frederick Williams v. Flexible Staffing11WC046390Factors (ii) through (iv) • Factor (ii): Occupation of the injured employee • “Arbitrator takes judicial notice to be medium to heavy work;” therefore, “PPD will be larger than individual who performs lighter work.” • Factor (iii): Age of Employee at the Time of Injury • 44 yo “somewhat younger individual;” therefore, “PPD more extensive than that of an older individual because he will have to live with PPD longer.” • Factor (iv): Employee’s Future Earning Capacity • “Appears to be undiminished…returned to full-time duties…told he no longer had a job…may negatively affect Petitioner’s future earning capacity.”

22. Frederick Williams v. Flexible Staffing11WC046390Factor (v) Evidence of Disability • Demonstrated evidence of disability corroborated by his treating medical records • Credibly testified • Pain, numbness, tingling and loss of range of motion • Corroborated by treating medical records of Dr. Aribindi • Corroborated by “diagnosis; necessity of surgery; course of treatment” • “Last visit”: loss of range of motion • “Evidences a disability as indicated by commission decisions regarded as precedent pursuant to section 19(e).”

23. Frederick Williams v. Flexible Staffing11WC046390Determination of PPD • “Not simply a calculation, but an evaluation of all five factors” as stated in 8.1b • No sole determinant • “Therefore applying section 8.1b” PPD is 30% loss of use of the right arm • Status: Motion for correction of clerical error filed 8-13-12

24. Zachary Johnson v. Central Transport11WC041328Facts • DA 10-17-11 • 28 year old truck driver; door falls on right hand • Right small finger metacarpal neck fracture with angulation • Treated conservatively with splint by company clinic; RTW full duty for Respondent • IME Dr. Cohen • Dr. Vender does AMA impairment rating: 7% “index” finger =1% hand=1% UEI • Arbitrator’s Decision 7-24-12 • Cites Section 8.1b (Factors i-v)

25. Zachary Johnson v. Central Transport11WC041328Factor (i) Reported Level of Impairment • Dr. Vender’s report admitted; no certification identified • “No evidence or argument rebutting Dr. Vender’s rating” (unlike Williams) • DX Metacarpal FX, Table 15-2, pg. “391” (sic, pg. 393); CDX 1, Proximal phalanx, middle phalanx, metacarpal; residual symptoms, consistent objective findings and/or functional loss, with normal motion; default position c is 6% digit (4,5,6,7,8) • Physical Exam PE grade modifier 2 because moderate alignment deformity present, 35 degree apex dorsal angualtion; Table 15-8, pg. 408 • Clinical Studies CS grade modifier 0 because no evidence of arthritis on xray; table 15-9, pg. 410 (but why not GM 1?) • Functional History FH grade modifier 2 because Quick Dash = 50; Table 15-7, pg. 406, moderate problem • Net Adjustment = (GMPE-CDX) + (GMCS-CDX) + (GMFH-CDX) = (2-1) + (0-1) + (2-1) = 1 + (-1) + 1 = Net Adjustment +1 • (GMCS 0 hurts more than NA in Wiiliams) • Move one space to right from default C 6% = 7% digit x 10% = 1% hand x 90% = 1% UEI x 60% = 0% WPI (Table 15-12, pg. 421)

26. Zachary Johnson v. Central Transport11WC041328Factors (ii) through (iv) • Factor (ii): Occupation of the Injured Employee • “Continues to be employed as truck driver” (no analysis of type of job like Williams) • Factor (iii): Age of Employee at the Time Injury • 28 yo “younger individual” and PPD “may not be more extensive than that of an older individual” (Williams was “somewhat younger”) • Factor (iv) Employee’s Future earning Capacity • “No evidence that future earning capacity has diminished…age increases liklihood of long career as truck driver” (offered job by Respondent unlike Williams)

27. Zachary Johnson v. Central Transport11WC041328Factor (v) Evidence of Disability • Petitioner’s treating medical records finds that FX with angulations was treated conservatively and healed • References to Drs. Cohen & Vender (treating medical records?) • Only 8 weeks before RTW full duty • “Arbitrator also finds persuasive Commission decisions…minimal PPD award is appropriate” (nod to section 19(e) like in Williams)

28. Zachary Johnson v. Central Transport11WC041328Determination of PPD • “Not simply a calculation, but an evaluation of all five factors” as stated in 8.1b • No sole determinant • “Therefore applying section 8.1b” PPD is 10% loss of use of the right hand • Status: 9-20-12 Settlement contract approved (8.5% hand)

29. Summary • AMA ratings can (and should?) be bolstered or disputed (even small jump can represent large % change in impairment) • Classify occupation (heavier = more PPD?) • Analyze age (older = more PPD?) • Earning capacity (RTW mitigates PPD?) • Evidence of disability (You know what this is!) • Corroborated by treating medical records (diagnosis, treatment, lost time can be corroborative?) • Previous IWCC decisions still important (19(e)?) • “Impairment does not equate to PPD” • PPD is an “evaluation” NOT simply a “calculation” • Congratulations, you’re still a lawyer or a judge! • Haircut? Buzzcut? Beheading? (35% arm to 30% arm is about 15% reduction in value)

30. CONCLUSION • Petitioners: Make sure to do your work in presenting evidence addressing all existing factors; explain absence of AMA (waiver?) • Respondents: Make sure the AMA raters show their work and attach all relied upon documents to their reports; explain absence of AMA (waiver?) • Both Parties: Address all factors in proposed decisions