WCLA MCLE February Update Wednesday February 24, :00 noon to 1 pm James R. Thompson Center Auditorium, Chicago, IL 1 hour general MCLE credit

Evelyn Farrar v. United Airlines 12WC01363; 14IWCC DA stipulated, TTD & medical paid through June App filed, 08WC last TTD or medical paid App dismissed No Petition to Reinstate ever filed Pro Se App filed, 12WC No 8(j) stipulated Accordingly, the Arbitrator finds that Petitioner's claim No. 12WC13163 is barred

Evelyn Farrar v. United Airlines 12WC01363; 14IWCC0118 Arbitration Decision; summary affirm & adopt by IWCC Respondent's defense two-fold: dismissal became final upon the expiration of the period to file a petition to reinstate pursuant to the Commission rules. As such, the dismissal operates as res judicata Alternatively, Respondent argues that claim filed after the running of the statute of limitations Petitioner responds claim was filed within a year after the dismissal, allowed by the Code of Civil Procedure. It is well established that procedural aspects of matters before the Commission are governed by the Act and the Rules, rather than the Code of Civil Procedure. Preston, 332 Ill. App. 3d (2002).Preston, 332 Ill. App. 3d (2002). Dismissal is a final judgment with respect to Petitioner's rights to recover workers' compensation benefits from Respondent arising out of the work accident…operates as res judicata Furthermore, claim was filed after the running of the statute of limitations. Section 6(d) of the Act provides that "unless the application for compensation is filed with the Commission within 3 years after the date of accident, where no compensation has been paid, or within 2 years after the date of the last payment of compensation, where any has been paid, whichever shall be later, the right to file such application shall be barred."

“Well Established”? Farris v. IWCC, 2014 Il App(4 th ) WC : “Although the Code of Civil Procedure generally does not apply to workers' compensation proceedings, "where the Act or Commission rules do not regulate a topic, civil provisions have been applied to workers' compensation actions." IIT, 314 Ill.App.3d 149 (2000). See also Wal-Mart Stores, 324 Ill.App.3d 961(2001)(applying Sec of the Code of Civil Procedure for the dismissal of a judicial review lacking jurisdiction).” Kim Henriksen v. T&W Edmier, 04 IIC 87: Section of the Code of Civil Procedure, allows refiling of a second claim when done within one year of voluntary dismissal or within the remaining period of the statute of limitations, whichever is greater. The Code of Civil Procedure and Sup. Ct. Rules generally do not apply to workers' compensation proceedings in so far as or to the extent that the procedure is regulated by the WC Act. But where the WC Act or IWCC rules do not regulate a topic, civil provisions have been applied to WC claims. Citing IIT. Commission finds that the Act as well as the Rules are silent as to whether a Petitioner can re-file a claim after a voluntary dismissal. The Commission further finds that Section of the Code of Civil Procedure does allow for re-filing Application as it was done within one year of the voluntary dismissal of her prior Application. Based on the above, the Commission reinstates Petitioner's case and remands this matter to the Arbitrator.

Farrar v. IWCC 2016 IL App (1 st ) WC The only issue raised in this workers' compensation appeal is whether Sec of the Code of Civil Procedure applies to WC claims that are dismissed for want of prosecution. IWCC is granted authority to "make and publish procedural rules and orders" governing the litigation of claims so that the process and procedure "shall be as simple and summary as reasonably may be." Therefore, when the WC Act or the IWCC rules regulate a procedure, the Act or the rules apply, not the Code. Rule (a) governs reinstatement of claims dismissed for want of prosecution…Therefore, when the Commission DWP’s, Petitioner has 60 days from receipt of dismissal order to file a petition to reinstate. Petitioner argues there is no conflict between Code Sec and Rule because the Code provides for "refiling" while Rule provides for "reinstatement.“ Therefore, the Code should apply. We disagree. Rule intended to be the sole means for reviving a claim that is DWP’d. Because Petitioner failed to file petition to reinstate under the Rule, IWCC properly dismissed her refiled claim on res judicata and statute of limitations grounds.

Kristine Isern v. United Airlines 12WC026238; 14IWCC0585 Arbitration Decision 08/15/2013 (Benefits awarded) FA flying from DEN to LAG to fly out of JFK DEN parking & flight free This issue has been decided previously by IWCC on several occasions. Most recently and the controlling case law can be found in Susanne Larson v. United Airlines, Inc., 05IWCC0298. Arbitrator finds the Larson case on point and controlling and as such finds Ms. Isern at the time of her injury to be entitled to the status of a traveling employee. The Arbitrator notes, however, that while bound by Commission precedent to decide this issue in favor of Petitioner, the only case law on this rather narrow point of law is Commission precedent; there is no Appellate or Supreme Court case law on point. In the absence of Commission case law, the Arbitrator may well have found Respondent's arguments persuasive. However, Commission precedent is binding on the Arbitrator.

Kristine Isern v. United Airlines 12WC026238; 14IWCC0585 IWCC Decision 07/17/2014 (Arbitration decision reversed, benefits denied) In 12/2013, IL Sup. Ct. decided Venture-Newberg, 2013 IL , which determined that Petitioner was not a traveling employee at the time of the accident and explained criteria for what is a traveling employee within the meaning of the WCA…analysis is instructive, while the facts are not identical. Similar to Venture- Newberg, Petitioner made a personal choice to live in CO and to travel to NY, her home base or domicile. Similar to the Venture-Newberg, Respondent did not compensate Petitioner for time or travel expenses for voluntary commute to NY. Petitioner selected her own flight using leisure travel passes available to all airline personnel. The Respondent did not offer preferential utilization of the passes based on Petitioner's status as a commuting employee. “Likewise”…Petitioner made personal decision to accept a position with Respondent as a flight attendant based in NY although she lived in CO. Respondent did not direct Petitioner to accept the position. By accepting a position that required her to travel from CO to NY for work, Petitioner also accepted the travel risks that were entailed, including the risk of injury during the commute.

United Airlines v. IWCC 2015 IL App(1 st ) WC Circuit Court reversed the Commission's decision and reinstated the arbitrator's decision. The circuit court believed that the undisputed facts were distinguishable from the facts in Venture-Newberg (eg Petitioner in the present case, unlike the employee in Venture- Newberg, was not a temporary employee.) The issue that we must decide is whether the claimant was a traveling employee when she injured her knee on the United flight from Denver to New York. In the present case, however, the Circuit Court improperly reversed the IWCC decision under either standard of review. Therefore, we need not decide which standard of review applies.

United Airlines v. IWCC 2015 IL App(1 st ) WC In order to qualify as a traveling employee, the work-related travel "must be more than a regular commute from the employee's home to the employer's premises.“ Under a Venture-Newberg analysis, the undisputed facts of the present case establish that United had no control over where the claimant chose to live and derived no benefit from her choice to live in CO. This policy statement emphasizes that the court focused on the nature of the Petitioner’s travel, not on the permanency of the employment. The method and time of travel was the result of her personal choices for her own benefit and from which United derived no benefit. Under these facts, the IWCC ruled correctly in finding that Petitioner did not qualify as traveling employee at the time of her injury. We reverse the judgment of the circuit court and reinstate the IWCC decision.

Anthony Bucio v. Diversified Recycling 12WC013065, 15IWCC0750 Without lens, legally blind in left eye…with lens, cannot distinguish small things from 7 feet, cannot distinguish man from woman from 20 feet (“+16 lens 20/60 +2”) Dr. Golden-Brenner prepared an impairment rating according to the AMA 6th Edition Guides…reported an impairment rating of 0.4% based upon the AMA and reported Petitioner essentially has no functional disability when using his contact lens as a result of his November 6, 2011 incident. (See Fundamental Principle 14, p20). According to Dr. Golden-Brenner, “impairment rating is 0.4% of eye.” The Arbitrator does accord Dr. Golden-Brenner's rating a great deal of weight in her deliberation. 45 years old at the time of his injury…assigns this factor relatively little weight. Employed by Sterling Lumber as a laborer…does give this factor some weight in determination as occupation is physical in nature.

Anthony Bucio v. Diversified Recycling 12WC013065, 15IWCC0750 Arbitration Decision Petitioner testified he was making more money at the time of trial than he was when employed by Respondent. His current earning capacity has not diminished as a result of his injury which is a likely indication that his injury will have no bearing on his future earning capacity. The Arbitrator notes the following evidence of disability that is corroborated by the treating records: Petitioner must visit an optometrist every year for life…; Petitioner instructed by his doctor to wear the contact lens for no longer than 5-10 hours a day which means he must go for part of the day without the visual correction…Petitioner must use lubricating drops in his left eye. The Arbitrator accords a great deal of weight to the disability as evidenced by Petitioner's treating records and finds that Petitioner has suffered a significant, permanent disability. After careful consideration of the five factors, the Arbitrator awards Petitioner 25% of a left eye

Anthony Bucio v. Diversified Recycling 12WC013065, 15IWCC0750 Commission Decision, modifies up “Dr. Golden Brenner found a 0.4% of an eye impairment rating.” Using the American Medical Association's "Guides to the Evaluation of Permanent Impairment" evaluation, IWCC finds that the appropriate permanent partial disability award is a 45% loss of the eye. The impairment finding of Dr. Golden-Brenner is credible and unrebutted. Furthermore, Petitioner was only 45 years old at the time of accident, which is not a significant detriment to his employability, as is evidenced by the fact that he now earns more than he did pre-accident. Regarding permanent partial disability, the Commission views the evidence in a slightly different manner than does the Arbitrator, and thus modifies the award up to a 45% loss of use the left eye.

AMA Guides to Evaluation of Permanent Impairment Chapter 12 The Visual System “This chapter focuses on vision, that is the functional impairment of the visual system as a whole…The calculations in this chapter therefore do not consider anatomic changes to any component of the visual system by themselves, but only their functional consequences.” p281 “Nor do they consider the loss of vision in 1 eye without considering the remaining vision in the other eye (see Section 12.4b).” p282 “(T)he assessment of impairment is only a first step toward disability assessment and determination of monetary compensation: the ratings therefore do not consider the effect on specific job-related functions or on employability.” p282 “(This) chapter uses visual acuity and visual field as the key factors (see Section 1.8c) on which the impairment evaluation is based.” p282

AMA Guides to Evaluation of Permanent Impairment Chapter 12 The Visual System “Section 12.1a: Elements of a Visual Impairment Evaluation” p283 “Current Visual Symptoms” “Pertinent Visual History: …whether the history is consistent with the current complaints. Causes…Pre-existing conditions…” “Pertinent Eye Exam: Visual acuity measurements with best correction” (emphasis added). p283 Determine a best corrected visual acuity score for each eye. (no emphasis added). p287 Table 12-2 Severe Low Vision 20/200, Impairment Rating 50. p288 Consider reading acuity (optional). p290 Example 12-3: 25% visual impairment (25% VSI) due to scratched left eye, best corrected left eye visual acuity 20/400. p291