WCLA MCLE 12-14-2017 Year-End Wrap up & Review Thursday December 14, 2017 12:00 noon to 1 pm James R. Thompson Center Auditorium, Chicago, IL 1 hour general MCLE credit

WCLA 2018 MCLE SCHEDULE Tuesday January 23, 2018 Monday February 12, 2018 (Lincoln’s Birthday observed, Special 3 hour Professional Conduct beginning at 8:30am)  Wednesday February 21, 2018  Thursday March 22, 2018  Tuesday April 10, 2018  Wednesday April 25, 2018 (Coinciding with IWCC Judicial Training, Special 3 hour Spring Medical Seminar beginning at 1 pm)  Wednesday May 2, 2018  Thursday June 7, 2018  Tuesday July 10, 2018 Wednesday August 8, 2018  Thursday September 13, 2018 ? September 2018 Fall Medical Seminar (coinciding with IWCC Judicial Training September 13 & 14, 2018)  Tuesday October 9, 2018 Wednesday November 7, 2018 Thursday December 13, 2018  All programs will be held in the JRTC Assembly Hall which is the auditorium on the Concourse (basement) level of the James R. Thompson Center (State of Illinois Building) at 100 W. Randolph in Chicago. All programs begin at 12:00 noon and end at 1:00 pm, except as otherwise indicated.

NCCI Data 9-1-2011 -8.8% $2.42 billion 1-1-2012 +3.5% +3.7% Date Rate Recommendation Loss Cost Total Premium # of Policies 9-1-2011 -8.8% $2.42 billion 1-1-2012 +3.5% +3.7% $2.60 billion 1-1-2013 -3.8% -3.5% $2.68 billion 188,018 1-1-2014 -4.5% -5.8% $2.75 billion 1-1-2015 -5.5% -6.2% $2.83 billion 1-1-2016 No filing $2.72 Billion 1-1-2017 -12.9% -13.4% 1-1-2018 -10.9% -11.4% Total -42.9% -36.6%

HB 2622 State Fund 5/26/2017: Passed Both Houses (House 67-51; Senate 32-20-1) Creates the Illinois Employers Mutual Insurance Company (IEMIC) Nonprofit, independent public corporation to provide workers compensation to employers at the “highest level of service and savings” Board of Directors appointed by Governor with A&C of Senate Board sets rates $10 million loan from IWCC Operations Fund to be paid off in 5 years

Governor Rauner Vetoes HB2622 “Today I veto House Bill 2622 from the 100th General Assembly, which will create a state-sponsored workers’ compensation insurance company. This bill will also require the Department of Insurance to provide a loan of $10 million out of the operations fund of the Workers’ Compensation Commission to capitalize the new organization. Illinois currently has the most competitive market for workers’ compensation insurance in the country with over 300 participants. Maintaining this state of affairs is in the best interest of every employer and job creator required to purchase this insurance. This legislation would instead disrupt the functioning market by inserting new and unnecessary layers of government interference due to an unfounded belief that the current competitive system is broken. Furthermore, this bill would divert needed funds from the Workers’ Compensation Commission, which could impact the backlog of cases and increase the cost of claims. The $10 million loan it this legislation demands of the Commission is not likely to have any meaningful impact in providing better access to affordable insurance. This bill does nothing to address the actual cost drivers and broken aspects of our workers’ compensation system, which are significant contributors to the flight of businesses and jobs from Illinois and obstacles to the efficient and effective system that injured workers deserve. Instead it directs attention at a fabricated problem. Therefore, pursuant to Section 9(b) of Article IV of the Illinois Constitution of 1970, I hereby return House Bill 2622, entitled “AN ACT concerning regulation,” with the foregoing objections, vetoed in its entirety.”

Speaker Madigan’s Response to Rauner’s Veto of HB2622 Gov. Bruce Rauner has sided with big insurance companies and against Illinois employers, House Speaker Michael J. Madigan said, criticizing the governor’s veto of legislation offering Illinois businesses the ability to reduce workers’ compensation costs. “The governor’s actions show his real agenda is not to do what’s in the best interest of Illinois employers, but only to serve the interests of multibillion-dollar insurance companies and further enrich corporate CEOs,” Madigan said. “Instead of helping local employers reduce their workers’ compensation insurance costs, the governor has blocked reform to protect corporate profits. House Democrats will push to override the governor’s veto and provide relief for Illinois employers.” Madigan and House Democrats passed House Bill 2622, which would provide employers with relief from workers’ compensation costs. While Rauner has consistently identified reduced workers’ compensation costs as a way to turn the state’s business climate around, the governor vetoed the bill last week. The measure would have created a not-for-profit insurance provider that would be able to sell workers’ compensation insurance to businesses throughout the state. The Illinois Employers Mutual Insurance Company would offer the same quality insurance as for- profit companies, but would be committed to delivering the best value for businesses, not turning a profit for investors. This competition would also encourage for-profit insurers to offer lower-cost options for Illinois employers. Twenty other states, including Missouri, Kentucky, California and Texas, currently offer employers the option of purchasing workers’ compensation coverage through a state-run, non-profit insurer. Americans for Insurance Reform, a coalition of 100 consumer and public interest groups, studied similar state-administered workers’ compensation insurers currently in place in other states. Their report concluded that these state options operate at a high level of efficiency, resulting in “far lower expenses” and lower overhead costs. “The governor’s veto rejected competition that would give Illinois employers the same advantages employers have in other states,” Madigan said. “House Democrats continue to try to meet the governor half way by putting forward real reforms that make Illinois a competitive place for business, but the governor continues to show that his only interest is padding the profits of insurance companies, big businesses and corporate CEOs.” 10-25-17: Veto Override Fails (65-50-1)

HB2525 The Omnibus WC Bill 5/31/17: Passed both Houses: (House: 64-51; Senate 35-19) Rate regulation & premium review (pre-filing & excessive premiums) In the course of & arising out of (Sisbro?) Traveling employee (Venture-Newberg?) Safety & RTW programs Shoulder = Arm; Hip = Leg (Will County Forest Preserve) Contribution from previous employers for repetitive trauma Section 8.1b (Cornbelt?)

HB2525 The Omnibus WC Bill Electronic billing (administrative fine) Abolishes 2-year Arbitrator rotation No appeal bond for SOI Penalty for non-authorization of medical treatment (Hollywood Casino?) Fraud Self-insurance oversight WC Premium Rates Task Force

HB2525 The Omnibus WC Bill (SA#2) No TTD waiting period for volunteer firefighters MAW credit for injuries to “same part of the spine”: 1) cervical through thoracic; 2) lumbar and the rest Evidence-based drug formulary ASTC’s

Governor Rauner Vetoes HB2525 Today, I veto House Bill 2525, which addresses Illinois’ Workers’ Compensation System. Illinois remains in a fiscal and economic crisis that taxes and regulations cannot solve. The only way to truly improve our state’s financial status is to grow our economy through the creation of jobs and opportunity. Our workers’ compensation insurance is one of the most expensive in the nation, and the statutory scheme underlying these costs is riddled with problems and stakeholders that stand in the way of getting injured employees back to health and encouraging employers to invest in Illinois again. We need thoughtful reform of this system, and we must focus our efforts on solutions that encourage economic growth while also making sure we are providing efficient and effective care to injured workers. Unfortunately, this bill does not make the changes necessary to achieve those goals. It fails to acknowledge the cost-drivers that are putting our state at a competitive disadvantage for jobs and growth. Instead, it imposes additional regulatory structures where they are not needed. This legislation does not represent real reform. It does not address the competitive disadvantages that are resulting in the disappearance of jobs in our manufacturing sector, where middle-class workers once could find opportunities for growth and advancement. It will not stop the flood of hardworking individuals who are leaving our state when these opportunities are lacking. Therefore, pursuant to Section 9(b) of Article IV of the Illinois Constitution of 1970, I hereby return House Bill 2525, entitled “AN ACT concerning employment,” with the foregoing objections, vetoed in its entirety.” 10/27/17 Total Veto Stands-No Positive Action Taken

Terry Noonan v. City of Chicago 08WC018511; 12IWCC1453 Petitioner testified that on the date in question he was sitting back down in his chair to fill out forms when he knocked his pen off his desk onto the floor. He indicated that when he reached to retrieve the pen the chair, which apparently was on rollers, chair slid out from underneath him, forcing him to stick his right arm out to brace his fall and hitting the palm of his right hand on the floor. He continued to work that day, but testified that the pain to his wrist gotworse during the course of the day. Respondent paid TTD & Medical No testimony to the effect that the chair in question was defective, that Petitioner was somehow in a hurry or under pressure to get a particular project completed, or that the floor or even his work space was somehow contributory to the fall. Indeed, there is not even any testimony as to the type of floor involved, whether carpeted or not. Based on this description, and absent any extenuating circumstances, the Arbitrator finds that Petitioner failed to prove that the simple act of sitting in a rolling chair and reaching for a pen exposed him to an increased risk of injury that was beyond what members of the general public are regularly exposed to. Accordingly, the Arbitrator finds that Petitioner failed to prove by a preponderance of the evidence that he sustained accidental injuries arising out of his employment on March 31,2008. As a result, Petitioner's claim for compensation is hereby denied.

Terry Noonan v. City of Chicago 08WC018511; 12IWCC1453; 14IWCC1137 IWCC 12/26/2012: Affirms and adopts the Decision of the Arbitrator Circuit Court 3/14/2016: reversed and remanded. The Court noted the issue before it was whether the Commission's determination that Plaintiff failed to prove he sustained accidental injuries arising out of his employment on March 31, 2008 was against the manifest weight of the evidence…For some reason, the Commission found it noteworthy that there was no testimony as to the type of floor that was involved. The Court is unsure how the type of floor affects the outcome of this case. Plaintiff showed that he sustained an injury which arose out of and in the course of his employment with Defendant. Whether this injury occurred on carpeting or on a tile floor is irrelevant to the conclusion that an injury arose out of and in the course of Plaintiffs employment. For these reasons, the Court reverses the Commission's Decision and remands it for a calculation of the benefits owed to Plaintiff. On remand, IWCC 12/26/2014: As the Circuit Court mistakenly applied erroneous legal standards in contradiction of the Act and well established case law in determining that the Commission's December 26,2012 Decision was against the manifest weight of the evidence, the Commission is foreclosed from applying the Order of the Circuit Court here, as doing so would require us to depart from well established existing authority… Petitioner provided no evidence the risk of injury in the manner suffered was directly ·associated with or peculiar to his employment. There was no evidence presented that the setup of his workstation created a unique hazard or the job duties themselves contributed to the injury. Further, there is no evidence that Petitioner was exposed to the risk of injury to a greater degree than the general public by reason of his employment. There is no evidence that a quantitative risk existed from the time he spent bending in an office chair or that a qualitative risk existed due to defective or unusual flooring, chair, workspace set-up, or some other special risk or hazard unique to his work environment.

Noonan v. IWCC 2016 IL App (1st) 152300WC Petitioner appeal, arguing the Commission’s finding that he failed to prove he sustained an injury arising out of his employment and its denial of benefits was against the manifest weight of the evidence. We reverse in part, vacate in part, and reinstate the Commission’s original decision. First, we address the Commission’s decision to ignore the circuit court’s March 14, 2014,remand order. In its decision dated December 26, 2014, the Commission addressed the circuit court’s remand order as follows: “The Commission concludes the Circuit Court did not make any findings based on the correct legal standard in determining the Commission’s decision finding failed to prove he sustained an injury arising out of his employment was against the manifest weight of the evidence. As the Circuit Court mistakenly applied erroneous legal standards in contradiction of the Act and well established case law in determining that the Commission’s December 26, 2012, Decision was against the manifest weight of the evidence, the Commission is foreclosed from applying the Order of the Circuit Court here, as doing so would require us to depart from well established existing authority.” Its frustration notwithstanding, the Commission could not simply ignore the circuit court’s order. No matter how defective the circuit court’s reasoning may have been, the Commission was charged with following the court’s order, reversing the Commission and ordering it to award benefits.

Noonan v. IWCC 2016 IL App (1st) 152300WC Second we address the circuit court’s March 12, 2015, order from which claimant appeals. The court entered that order after claimant sought judicial review of the Commission’s December 2014 decision and opinion on remand. In the order, the court found the Commission’s original decision should have been upheld and held its previous order, reversing and remanding to the Commission, was “of no consequence.” The circuit court acted without authority when ordering that the Commission’s original decision should have been upheld and its previous order was “of no consequence.” The matter was before the court for purposes of reviewing the Commission’s decision and opinion on remand, and the court was limited by the Act to confirming or setting aside that decision. The court should not have addressed previous orders entered in the matter by either it or the Commission. Although we find the circuit court committed error in connection with its March 2015 order, that error does not affect our review of the matter. “Where, as here, the [circuit] court reverses the Commission’s initial decision and the Commission enters a new decision on remand, this court must decide whether the Commission’s initial decision was proper.”

Noonan v. IWCC 2016 IL App (1st) 152300WC An injury arises out of one’s employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. A risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties. Consistent with these principles, this court has categorized the risks to which an employee may be exposed as “(1) risks that are distinctly associated with the employment; (2) risks that are personal to the employee; and (3) neutral risks that do not have any particular employment or personal characteristics.” The fact that he was reaching to retrieve a dropped pen and used a pen to fill out forms does not warrant an opposite conclusion. The risk of injury at issue was simply not one “distinctly associated” with claimant’s employment. Evidence presented in this case failed to similarly establish claimant’s actions—reaching to retrieve a dropped object while sitting in a chair—were acts the employer might reasonably have expected him to perform incident to his clerk duties.

Noonan v. IWCC 2016 IL App (1st) 152300WC Instead, we find the risk of falling from a chair while reaching to the floor is one which claimant would have been equally exposed to apart from his work for the employer. Thus, it presents a neutral risk and is compensable only when claimant establishes he was quantitatively or qualitatively exposed to the risk to a greater degree than the general public. (See SB12). For the reasons stated, we reverse the circuit court’s March 14, 2014, judgment, reversing the Commission’s initial decision and remanding to the Commission for an award of benefits to claimant; vacate the Commission’s December 26, 2014, decision and opinion on remand; vacate the circuit court’s March 12, 2014, decision, finding its previous remand order was “of no consequence”; and reinstate the Commission’s initial December 26, 2012, decision.

Noonan v. IWCC 2016 IL App (1st) 152300WC Justice Holdridge concurring: However, even if I were to reject that distinction and find this case analogous to Young and Autumn Accolade, I would nevertheless decline to rely upon those cases because, in my view, they apply an incorrect analysis. A claimant may not obtain benefits for injuries caused by activities of everyday living(such as bending, reaching, or stooping), even if he was ordered or instructed to perform those activities as part of his job duties, unless the claimant’s job “required him to perform those activities more frequently than members of the general public or in a manner that increased the risk.” Adcock. In other words, such injuries should be analyzed under neutral risk principles. Justice Stewart dissenting: The majority then determines that an employer would not reasonably expect a clerical worker to bend over to pick up a dropped pen. This finding defies common sense. In my view, any employer should reasonably expect a clerical employee to bend over and pick up a dropped pen. Accordingly, I would find that the acts that resulted in the claimant’s injury were distinctly associated with his employment. Further, in my view, if a worker is injured performing an everyday activity, such as “bending over,” and that activity is incidental to his employment, the injury results from an employment risk, and a neutral-risk analysis should not be employed.

Mytnik v. IWCC 2016 IL App (1st) 152116WC In this case, the Commission found that claimant failed to prove a work accident because his act of bending down to pick up a bolt did not expose him to a greater risk of injury than the general public. In other words, the Commission determined claimant’s injury was the result of a non- compensable neutral risk. Implicit in its decision is a determination that claimant’s injury did not result from an employment-related risk. Similar to the risk involved in Young, in this case we find that the risk associated with the act of bending down to pick up a fallen bolt was an employment-related risk. While the act of “bending” maybe an act performed by the general public on a daily basis, the evidence established that bolts would regularly fall out of the articulating arm during the assembly process.

Carl Crittenden v. City of Chicago DA 4-11-08 Dr. Singh light duty; Dr. Chmell cannot RTW to old job Voc Expert Blumenthal for Petitioner Target job paid $11/hr Various jobs would be OK: customer service to bus driver $8.25/hr to $13.78/hr (bus driver) Voc Expert Bose for Respondent GED recommended Contact 10 employers/wk Non-compliance ?? what Petitioner could earn

Carl Crittenden v. City of Chicago 08WC19505; 14IWCC0884 Arbitrator’s decision Arbitrator finds that Petitioner is partially incapacitated from pursuing his usual and customary line of employment and that he is entitled to benefits under Section 8( d)1. Respondent shall pay Petitioner wage differential benefits of$581.06 week for the duration of the disability, because the injuries sustained caused a loss of earnings, as provided in Section 8(d)1. There was no dispute as to how much Petitioner would be earning, i.e., $32.79 per hour, if he could still perform that job. Blumenthal and Bose did not rely on identical histories, but their opinions overlapped in that they both targeted cashier and customer service jobs when they evaluated Petitioner in 2010 and 2011, noting Petitioner's past retail experience. Blumenthal noted Petitioner was earning $11.00 per hour when he left his part-time job at Target. Blumenthal projected earnings of $8.25 to $13.78 per hour. Bose did not criticize this projection or make a projection of her own. The Arbitrator selects $11.00 per hour as a reasonable wage. The Arbitrator arrives at a wage differential rate of $581.06 by multiplying $32.79 by 40 hours to arrive at $1,311.60, subtracting $440.00 [$11.00/hour x 40] to arrive at $871.60 and dividing $871.60 by 2/3.

Carl Crittenden v. City of Chicago 08WC19505; 14IWCC0884 IWCC Decision The Commission finds it is more reasonable to determine, based on a review of all of the evidence, that the Petitioner is capable of earning $13.78 per hour. This results in a weekly wage differential of $506.93. The Commission believes that the Petitioner did not provide the effort that he should have in performing his job search, and exaggerated the difficulties he encountered in dealing with the Respondent's initial method of vocational assistance. This lack of effort was also supported by the testimony of Julie Bose. When a claimant is receiving weekly benefits while performing a search for alternative employment, the search is his "job" during this time. Petitioner has clearly shown entitlement to a wage differential, however his lack of effort in obtaining alternative suitable employment leads us to determine that he is capable of earning the highest amount that Mr. Blumenthal opined he was capable of earning, $13.78 per hour. Proper weekly wage differential should be $506.93 per week. ($581.06 by Arbitrator).

Crittenden v. IWCC 2017 IL App (1st) 160002WC The claimant now appeals… For the following reasons, we reverse, vacate the Commission's decision, and remand this matter to the Commission with directions The sole issue on appeal is whether the circuit court erred by confirming the Commission's decision regarding the amount of the wage differential award First, as discussed in further detail below, we find that the issue raised in this case requires this court to interpret the language of the Act. To that extent, we employ a de novo standard of review. However, once we have set forth the proper interpretation of the Act, the issue of whether the Commission properly calculated the wage differential award under the statute as we have interpreted it is subject to a manifest weight of the evidence standard of review.

Crittenden v. IWCC 2017 IL App (1st) 160002WC 8(d)1: “the average amount which he…is able to earn in some suitable employment or business after the accident” No Illinois court has set forth an interpretation of the particular method the Commission is required to use to establish "the average amount which [the employee] is able to earn in some suitable employment or business after the accident," in the event that the employee has not returned to work. Accordingly, we find this to be an issue of first impression and proceed to interpret the Act to resolve this legal issue. If the claimant is not working at the time of the calculation, the Commission must rely on functional and vocational expert evidence We hold that in order to calculate a wage differential award, the Commission must identify, based on the evidence in the record, an occupation that the claimant is able and qualified to perform, and apply the average wage for that occupation to the wage differential calculation. As a corollary to this holding, the claimant is required to introduce evidence sufficient for the Commission to identify an occupation that the claimant is able and qualified to perform and the average wage for that occupation

Melanie Martin v. AT&T 15 WC 029983; 16 IWCC 0609 Petitioner falls on stairs going to get personal cell phone at end of shift. IWCC affirms and adopts Arbitrator’s denial of benefits Petitioner had already signed out of work, had already walked down the final stairway and was just about out the door when she realized she had forgotten her personal cell phone Petitioner was not carrying anything other than her purse Petitioner's decision to walk back up the stairs was solely for her own personal benefit Significant that petitioner never testified that the stairwell was not accessible to the general public. She also clearly testified that she had other access to and from the ground floor and the second floor where she worked, that being an elevator. Petitioner was not instructed by her employer to use the elevator or the stairwell. The choice was hers. Arbitrator notes that the step on which petitioner alleged she fell did have a small section of the nonslip strip missing. However , the picture shows that the strip was not raised or buckled and in fact even where the piece was missing, the height of the strip was exactly the same as that around the perimeter of the strip, namely 1/ 8". Based on the above, as well as the credible evidence, the arbitrator finds the petitioner has failed to prove by a preponderance of the credible evidence that she sustained an accidental injury that arose out of and in the course of her employment Circuit Court confirmed 5-4-17. Case in the Appellate Court.