NEWSLETTER - March 2006

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March 2006

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• Firm Happenings
• Illinois Workers' Compensation Commission Update
• Circuit Court Update
• Case Law Update
  1. Improper Manifestation Date Bars Repetitive Trauma Claim
  2. Benefits that Accrue Prior To Death Are Payable To The Worker's Estate
  3. Petitioner's Testimony Not Sufficent To Find Bills Reasonable

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Firm Happenings

As this is our inaugural website newsletter, we are pleased to announce that the Inman & Fitzgibbons website is up and running. We will report firm news, Commission and court news and caselaw developments here approximately on the first of each month, so stay tuned to this page for the latest developments.

Most recently, we are pleased to announce that Christopher Henson joined our firm effective December 12, 2005. Chris has over 10 years of general liability, employment law and workers compensation experience and has been a great addition to the firm.

On the litigation front, Steve Murdock recently received “zeros” on three cases he tried at the end of 2005, a true accomplishment given the current state of the Commission. Two of the cases were consolidated, involving the same claimant with different repetitive trauma claims. The Arbitrator agreed with Steve's argument that the petitioner's job duties were not causative of the injury in either case. In the second case, the Arbitrator found that the petitioner failed to even establish the actual job duties that allegedly cause the repetitive trauma injury.

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Illinois Workers' Compensation Commission Update

The much discussed changes and amendments to the Worker's Compensation Act have now fully taken effect with the passage of February 1, 2006. The Amendments to the Act were first signed into law by Governor Blagojevich on July 20, 2005, but many of the most pertinent changes – concerning the creation of temporary partial disability; changes in PPD and TTD minimums and the wage differential maximum; and changes regarding death benefits – came into effect for accident dates arising on or after February 1, 2006. In addition, the Commission has established a fee schedule for medical charges related to treatment for work related injuries, and has posted it on their official website. By the admission of the Fee Advisory Board, the schedule is a work in progress, but they met their obligation of having one in place by February 1, 2006. We will no doubt have further news and commentary as the impact of the amendments is felt by employers, insurers and practitioners at the Commission.

Circuit Court Update

The Circuit Court of Cook County has once again raised its filing fees, increasing the fee for an Appearance in a Law Division case by $20.00 to $163.00, and making similar increases across the boards on civil filings. They have also introduced a self-filing system wherein attorneys and clerks can file-stamp their documents and drop them into a depository, so long as the filings are done prior to the day the filings are due. Whether the majority of attorneys will change their habits and actually have documents completed prior to the day they are due remains to be seen, but the new system will speed up the filing process for clerks.

Case Law Update

Until claims are filed and litigated that involve accident dates that arise after the amendments to the Act have become effective, our worker's compensation case law updates will reflect decisions rendered under the Act prior to the amendments as the majority of cases that our clients are concerned with will be pre-amendment cases for the next year or two.

Improper Manifestation Date Bars Repetitive Trauma Claim

The Appellate Court recently addressed the issue of what constitutes the manifestation date in a repetitive trauma claim. Durand v. Industrial Commission, 358 Ill. App. 3d 239 (3 Dist. 2005). The petitioner filed her Application on January 12, 2001 alleging a repetitive trauma injury date of September 8, 2000. She had worked for the respondent for eleven years, much of it involving scanning policies and loading them into her computers, as well as entering data using a keyboard. On September 8, 2000 the petitioner underwent an EMG which revealed mild carpal tunnel syndrome and her doctor opined that the symptoms were work-related. The respondent's IME physician testified that the petitioner's job was not causative in her condition. During her testimony the petitioner admitted that back in January of 1998 she was having problems with her wrists and that she felt it was work-related. She admitted this was also so in 1997. The arbitrator had found the case compensable and rendered an award. The Commission reversed, finding that the petitioner's claim had been filed more than three years after the proper “manifestation date”. The Circuit Court affirmed.

The Appellate Court pointed to the seminal repetitive trauma case of Peoria County Bellwood Nursing Home vs. Industrial Commission in reciting that an injury manifests itself when both the fact of the claimant's injury and its causal relationship to their employment would have become plainly apparent to a reasonable person. The Court specifically rejected the petitioner's contention that her injury manifested itself on the date when her EMG confirmed she had the condition. The court stated that the Peoria County Bellwood standard does not require a diagnosis by a physician, but rather has to do with when the condition and its causation would have become plainly apparent to a reasonable person. The Court then focused on the petitioner's own testimony that she knew she was having problems with her wrists in 1997 and that she had told her supervisor she felt it was work-related. The Court held that the Commission's finding that the injury manifested itself in 1997, therefore, was not against the manifest weight of the evidence. Therefore, the Court affirmed the dismissal of the claim as being more than three years beyond the proper accident date or manifestation date.

Please note, however, that the Supreme Court granted leave to appeal this matter, giving them one last opportunity to confirm or reverse this decision. We expect a decision later this year on what is an excellent case, right now, for employers.

Benefits that Accrue Prior To Death Are Payable To The Worker's Estate

In the recent case of Nationwide Bank and Office Management vs. Industrial Commission 361 Ill.App.3d 207 (1 Dist. 2005) the First District Appellate Court affirmed that benefits that accrued to a claimant who was injured at work and then who died from unrelated causes belonged to the employee's estate. Therefore, the respondent was liable for the awarded TTD and medical even though the case continued beyond the widow's subsequent death.

Petitioner Alvin Sokolec filed an Application alleging injuries on April 3, 1990. On June 17, 1993 he died of unrelated causes. His widow continued to pursue the claim, and the matter was arbitrated on a 19(b) petition after his death. The arbitrator awarded more than three years of TTD, constituting the period from the accident date to the date of death, and medical expenses of over $700,000.00. No award was entered for permanency or any benefits after the petitioner's date of death. After the employer filed a Review, the widow also died with no surviving dependents. The Commission found that the widow's death did not abate the claim, and that the respondent was still liable to pay the award. The Circuit Court then reversed, and held that her death did in fact abate the claim.

The Appellate Court reversed again and agreed with the Commission that because the amount of benefits awarded to the claimant had already accrued prior his death, they became assets of the estate, which were payable by the respondent regardless of the existence of beneficiaries. In other words, the subsequent passing of the claimant's only beneficiary, his widow, before the Commission's decision became final did not relieve the employer of paying the award of TTD and medical to the petitioner's estate since the benefits had accrued before the date of the petitioner's death. Please note, though, that this case did not involve an award of permanency benefits or any benefits that accrued after the claimant's death.

Petitioner's Testimony Not Sufficent To Find Bills Reasonable

In the case of Land and Lakes Company vs. Industrial Commission, the Appellate Court addressed an issue regarding the admission of medical bills into evidence. (No. 2--04--0674WC, 2nd Dist., August 2005) The petitioner had an undisputed accident and was eventually awarded 67 weeks of TTD and $17,676.00 in medical expenses, as well as an order for future surgery. The employer appealed the award of the medical bills, arguing that the petitioner did not present an adequate foundation for the admission of those bills. During the petitioner's testimony, he was presented with each bill. He identified the service he received and testified that the balance remained unpaid. However, on cross-examination he acknowledged that he had never actually contacted the providers to verify the balances and had no personal knowledge of the unpaid balances. The employer then objected to the introduction of the bills into evidence on the basis that the claimant had failed to lay a proper foundation. This was overruled by the arbitrator who awarded the medical bills as well as the TTD and prospective medical sought. The Commission affirmed, which was then affirmed by the Circuit Court.

The Appellate Court reversed on this issue. It first noted that the Illinois Rules of Evidence govern proceedings before the Commission. The Court further noted that a petitioner seeking admission into evidence of a bill that has not been paid can only establish the reasonableness by the testimony of a person having knowledge of the services rendered and the usual and customary charges for those services. In this instance, the only foundational testimony came from the claimant - that he received the bills and believed that they remained unpaid. The Court ruled that this does not meet the foundational requirements for admitting bills, since he was not someone familiar with the providers' business practices nor was he someone who could testify about the reasonableness of the charges. The Court held that it was error to admit the bills over the employer's objection. It therefore reversed the award of medical expenses, but remanded the cause back for another hearing specifically on the reasonableness of the medical expenses only. At this hearing the claimant would have the opportunity (apparently the second) to lay a proper foundation for the admissibility of the medical bills.

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