WCLA MCLE 7-10-12

1. WCLA MCLE 7-10-12 • The Secrets of 19(h) • Tuesday July 10, 2012 • Guest Speaker: Mark Matranga, Wiedner & McAuliffe • Guest Speaker: Amylee Hogan, James M. Ridge & Associates • 12:00 pm to 1:00 pm • James R. Thompson Center Auditorium, Chicago, IL • 1 Hour General MCLE Credit

2. MCLE Update • HB1084 signed by Governor 6-29-12, effective immediately, PA97-0719: Amends the Workers' Compensation Act. Provides that all arbitrators shall be appointed by the Governor with the advice and consent of the Senate (currently the initial appointments of arbitrators made under P.A. 97-68 are made by the Governor with the advice and consent of the Senate, with all appointments thereafter being made by the Commission) • Will County Forest Preserve District: shoulder is not the arm; Petition for Rehearing/Reconsideration & Certification DENIED 7-5-12

3. 19(h)820 ILCS 305/19(h) • As to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months, or 60 months in the case of an award under Section 8(d)1, after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended. On such review, compensation payments may be re-established, increased, diminished or ended. The Commission shall give 15 days' notice to the parties of the hearing for review. Any employee, upon any petition for such review being filed by the employer, shall be entitled to one day's notice for each 100 miles necessary to be traveled by him in attending the hearing of the Commission upon the petition, and 3 days in addition thereto. Such employee shall, at the discretion of the Commission, also be entitled to 5 cents per mile necessarily traveled by him within the State of Illinois in attending such hearing, not to exceed a distance of 300 miles, to be taxed by the Commission as costs and deposited with the petition of the employer. When compensation which is payable in accordance with an award or settlement contract approved by the Commission, is ordered paid in a lump sum by the Commission, no review shall be had as in this paragraph mentioned.

4. Deadline Runs From What? • Date of final Arbitrator’s Decision or Commission decision (even if judicial review is taken) • Cuneo Press v. IIC, 51 Ill.2d 548 (1972): It is respondent's contention that the petition under section 19(h) was not timely filed and we agree…considered by this court in…and it was held that the statutory limitation is not tolled by reason of judicial review of the award.…it was held that the period of limitation begins to run from the date on which the award of the arbitrator is affirmed by the Industrial Commission. • Eschbaugh v. IIC, 286 Ill.App.3d 963 (1996): After examining the history and purposes of the limitations period on review of awards under section 19(h) of the Act, we are compelled to hold that the time provision set forth in section 19(h) of the Act is jurisdictional…strong Illinois precedent holding that time limitations of the Act are jurisdictional. Having concluded that the time provision of section 19(h) is jurisdictional, we can readily dismiss claimant's contentions that employer consented to the jurisdiction of the Commission by executing a section 19(h) proceeding stipulation form and waived the limitations period by partaking in a hearing on the merits of claimant's section 19(h) petition. It is well settled that the issue of subject matter jurisdiction cannot be waived, stipulated to, or consented to by the parties.

5. Collateral Deadline Attack • Dallas v. Ameren Cips, 402 Ill.App. 3d 307 (2010): Respondent cannot assert Disability has “diminished or ended” argument as collateral attack against an award in a 19(g) proceeding brought by Petitioner; costs and attorneys fees affirmed • Arenas v. Polyfoam, 04 IIC 0714: Denial of Respondent’s 19(h) Petition brings award of attorneys fees and costs to Petitioner’s counsel

6. Reloading 19(h) • Behe v. IIC, 365 Ill.App.3d 463 (2006): Petitioner argues the 30-month limitations period began anew from the date of the denial of his first section 19(h) petition. In support of this argument, Petitionener relies on Hardin Sign, 154 Ill.App.3d 386 (1987)…However, unlike the Petitioner in Hardin, in this case, the Commission, pursuant to claimant's first section 19(h) petition, determined that Petitioner had not experienced a change in circumstances warranting an increase in the original award. Petitioner did not appeal this finding. Under this rationale, a Petitioner may preserve his right of review in perpetuity so long as a successive section 19(h) petition is filed within 30 months of the denial of the previous section 19(h) petition. This reasoning is contrary to the express language of the Act… any reading of section 19(h) that allows for endless filings of petitions renders the 30-month requirement meaningless and is not an acceptable interpretation. Therefore, the denial of a section 19(h) petition does not toll the 30-month limitations requirement. As such, Petitioner’s second section 19(h) petition was untimely, and the Commission properly determined it did not have jurisdiction to review the petition.

7. 19(h) & Wage-Differential • Cassens Transport v. IIC, 218 Ill.2d 519 (2006) • This case requires us to interpret section 8(d)(1)…This is a matter of statutory construction, presenting a question of law that we review de novo. • This court recently noted that the Act specifies only two instances where the Commission may modify a final award…Section 19(f) gives the Commission limited authority to correct clerical errors…Section 19(h) gives the Commission authority to review an installment award within 30 months of its entry when a party alleges that the employee's disability has recurred, increased, diminished, or ended • Cassens has asked the Commission to reopen an installment award based on the allegation that Ade's disability has diminished or ended. Section 19(h) authorizes the Commission's jurisdiction for this purpose, but only for 30 months following the award's issuance, a time limit that Cassens has exceeded. • For the reasons stated above, we hold that the Commission has no jurisdiction to modify the award. This holding makes it unnecessary to address Cassens' arguments as to the definition of "disability" in section 8(d)1 and, accordingly, the appellate court's discussion of that issue was improper. • “60 months” added by PA94-277, applicable to injuries occurring after 2-1-06

8. 19(h) & Wage-Differential • “Disability” • Petrie v. IIC, 160 Ill.App.3d 165 (1987): Petitioner wants to change PPD award to wage-differential through timely filed 19(h) • Petitioner contends that he is entitled to a more accurate award calculation for his physical disability, based on increase in economic disability • From our review of the Act, we conclude that when the legislature used the term disability in section 19(h) it was referring to physical and mental disability and not economic disability • 19(h) & PTD? King v. IIC, 189 Ill.2d 167 (2000): In contrast to section 8(f), section 19(h) grants employers the right to have certain compensation awards reviewed, but only within 30 months…The remedy provided in section 8(f) is separate from the remedy contained in section 19(h), citing Superior Coal, 321 Ill. 40 (1926) ($23.33/mo!)

9. 19(h) & TTD • Poore v. IIC, 298 Ill.App.3d 719 (1998) • Petitioner files 19(h) requesting additional medical, TTD & PPD • Commission grants additional medical but denies additional PPD and denies additional TTD (relying on Briggs, 212 Ill.App.3d 318 (1989)) • Appellate Court REVERSES • Petitioner “does not have to prove an increase in his permanent disability to be entitled to TTD benefits…all claimant must show is that his disability destabilized and required more treatment or recovery time and that, consequently, he was temporarily and totally disabled…comports with the spirit and purpose of the Act.” • Lacked “guidance” of World Color Press, 249 Ill.App.3d 105 (1993), distinguishing Briggs in that PPD increase justifies additional TTD based on idea of destabilization • 19(h) can be used to get more TTD even without PPD increase

10. Flores v. IWCCNo.1-11-0552WC, filed 6/25/12 • DA 9-18-2000, landscaper involved in MVA (00WC63694) • Right femoral FX (ORIF) and lumbar strain(?) • Arbitrator decision: 50% leg (affirmed by IWCC 1-30-03) • 3-31-05: Petitioner files 19(h) and presents evidence about treatment to back and VE evidence about ability to work countered by Respondent’s medical expert and VE • 4-28-10 : Commission decides Petitioner failed to prove “material change” that is “causally connected” (10 IWCC 417) • Appellate Court: material change is question of fact; “the medical evidence presented is sufficient to sustain the Commission’s finding that the claimant’s workplace accident is unrelated to his herniated disc” • 8(a) denied as not necessary: not causally connected

11. Tony L. Curtis v. Village of Lansing11 L 50114 • DA 9-1-00 (02WC005894) • 1-25-05: Arbitrator Decision: 40% hand (final) • 1-21-10: Petitioner files Petition for medical and TTD (Respondent paid all stipulated medical expenses and stipulated that Petitioner was off work for 18 weeks) • 1-13-11: Commission denies TTD, finding that “Maintenance under a vocational rehabilitation situation is provided under Section 8(a), but that is not the same as TTD…no provision of Section 8(a) provides the relief sought by the Petitioner” • BUT, 8(a): “physical, mental and vocational rehabilitation” including maintenance • AND WHAT ABOUT 8(b): “continuing as long as the total temporary incapacity lasts” • Cir. Ct.: hinges entirely on the legal question of whether Section 19(h) bars Petitioner from seeking TTD more than 30 months after award • De novo review • Circuit Court says Section 8 has no time limit but 19(h) does (Isn’t that the point?!) • N0 discussion of Poore (you don’t need increase in PPD to get TTD) • Ickes v. H&F, 04 IIC 0502: TTD not governed by 30 month time limitation in 19(h)