Workers’ Compensation Lawyers Association MCLE Amputations: Definitions, Accrual, Payment & Penalties Thursday March 25, 2010 Thomas R. Lichten (Petitioner) Richard S. Zenz (Respondent James R. Thompson Center Auditorium Chicago, IL 1 hour general MCLE credit

What Are The Issues? When is there an Amputation? Other Special Issues? (Medical, 2 nd Injury Fund, Attorneys Fees) Are There Special Rates That Apply? When Do Amputations Accrue? (Greene Welding) When Should Respondents Pay? (GW) Do Amputations Present Penalty Situations? (GW)

Section 8(e)8 Fingers, Thumbs & Toes 8. The loss of the first or distal phalanx of the thumb or of any finger or toe shall be considered to be equal to the loss of one ‑ half of such thumb, finger or toe and the compensation payable shall be one ‑ half of the amount above specified. The loss of more than one phalanx shall be considered as the loss of the entire thumb, finger or toe. In no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand.

Section 8(e)9 Hand The loss of 2 or more digits, or one or more phalanges of 2 or more digits, of a hand may be compensated on the basis of partial loss of use of a hand, provided, further, that the loss of 4 digits, or the loss of use of 4 digits, in the same hand shall constitute the complete loss of a hand. What about the FOOT? Section 8(e)11?

Section 8(e)10 Arm “Where an accidental injury results in the amputation of an arm below the elbow, such injury shall be compensated as a loss of an arm. Where an accidental injury results in the amputation of an arm above the elbow, compensation for an additional 15 weeks(*) or an additional 17 weeks (if the accidental injury occurs on or after February 1, 2006) shall be paid, except where the accidental injury results in the amputation of an arm at the shoulder joint, or so close to shoulder joint that an artificial arm cannot be used, or results in the disarticulation of an arm at the shoulder joint, in which case compensation for an additional 65 weeks (*) or an additional 70 weeks (if the accidental injury occurs on or after February 1, 2006) shall be paid. * “If the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006” or before and between and

Section 8(e)12 Leg Where an accidental injury results in the amputation of a leg below the knee, such injury shall be compensated as loss of a leg. Where an accidental injury results in the amputation of a leg above the knee, compensation for an additional 25 weeks (*) or an additional 27 weeks (if the accidental injury occurs on or after February 1, 2006) shall be paid, except where the accidental injury results in the amputation of a leg at the hip joint, or so close to the hip joint that an artificial leg cannot be used, or results in the disarticulation of a leg at the hip joint, in which case compensation for an additional 75 weeks (*) or an additional 81 weeks (if the accidental injury occurs on or after February 1, 2006) shall be paid. * “If the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006” or before and between and

Section 8(e)13 Eye Where an accidental injury results in the enucleation of an eye, compensation for an additional 10 weeks (*) or an additional 11 weeks (if the accidental injury occurs on or after February 1, 2006) shall be paid. * “If the accidental injury occurs on or after the effective date of this amendatory Act of the 94th General Assembly but before February 1, 2006” or before and between and

What is an “Amputation”? Edward E. McMorran & Co., 290 Ill. 569 (1919): “It cannot be reasonably said that the loss of one-sixteenth of an inch of the first joint of a finger is the loss of the first phalange or that the legislature so intended…We are of the opinion…that the Industrial Commission erred in making an award for 17 1/2 weeks, at six dollars per week, for permanent partial disability” Macon County Coal Company, 367 Ill. 458 (1937): 50% loss for “One third of the bone of the distal phalange was removed by the doctor and the finger at present is three-eighths of an inch shorter than the corresponding finger on his left hand…The findings of the arbitrator and Industrial Commission that the injury amounted to the loss of the first phalange of the second finger were well within the range of the evidence”

What is an “Amputation”? Colbert v. GMP-Genpak, 07IWCC0309 “The real issue in controversy is whether petitioner sustained a 50% statutory loss of the right long finger due to amputation pursuant to Section 8(e) of the Act. Upon review of Edward E. McMorran & Co. v. Industrial Commission…and Macon County Coal Co. v. Industrial Commission, 367 Ill. 458, …the Arbitrator concludes that petitioner sustained extensive trauma to the right middle finger, to the extent of a 50% statutory loss. Relying upon both Dr. Dillon and Dr. Levin, at the very least, petitioner lost 3 millimeters of bone. Lastly, the Arbitrator determines that the appearance of the right distal phalanx is approximately 1/2 the size of the left distal phalanx. Thus, the respondent shall pay the petitioner 17.5 weeks of permanent partial disability at the rate of $ , as provided in section 8(e) of the Act, for a 50% statutory loss of a right middle finger.”Edward E. McMorran & Co. v. Industrial CommissionMacon County Coal Co. v. Industrial Commission, 367 Ill. 458, 3 mm =.118 inches =.944/8 of an inch

Section 7(f) Naming the 2 nd Injury Fund The State Treasurer, or his duly authorized representative, shall be named as a party to all proceedings in all cases involving claim for the loss of, or the permanent and complete loss of the use of one eye, one foot, one leg, one arm or one hand. The State Treasurer or his duly authorized agent shall have the same rights as any other party to the proceeding, including the right to petition for review of any award. The reasonable expenses of litigation, such as medical examinations, testimony, and transcript of evidence, incurred by the State Treasurer or his duly authorized representative, shall be borne by the Second Injury Fund.

Section 16a(F) Attorneys Fees (F) In the following cases in which there is no dispute between the parties as to the liability of the respondent to pay compensation in a timely manner or in the proper amount and there is no dispute that the accident has resulted in:… (3) the amputation of a finger, toe, or member; or… (5) the enucleation of or 100% loss of vision of an eye; the legal fees, if any, for services rendered are to be fixed by the Illinois Workers' Compensation Commission at a nominal amount, not exceeding $100.

Section 8(a) Where the accidental injury results in the amputation of an arm, hand, leg or foot, or the enucleation of an eye, or the loss of any of the natural teeth, the employer shall furnish an artificial of any such members lost or damaged in accidental injury arising out of and in the course of employment, and shall also furnish the necessary braces in all proper and necessary cases. In cases of the loss of a member or members by amputation, the employer shall, whenever necessary, maintain in good repair, refit or replace the artificial limbs during the lifetime of the employee.

Section 8(b)4 Maximum Rate Different from regular PPD Max From July 1, 1977 and thereafter such maximum weekly compensation rate... for amputation of a member or enucleation of an eye under paragraph (e) of this Section shall be increased to 133 ‑ 1/3% of the State's average weekly wage in covered industries under the Unemployment Insurance Act. Modern Drop Forge, 284 Ill.App.3d 259 (1996): 60% up to the TTD Max; so, rate is 60%; max is TTD max

Section 8(b)4.1 Minimum Rate 4.1. Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State's average weekly wage… Accidents on and after ; See Sec. 95, PA Not limited to AWW 50% of thumb, finger or toe(?)

Applicability of Section 8(b)4.1 Minimum Rate PA : “Section 95. Applicability. The amendatory changes to the first paragraph of subsection (f) of Section 7 relating to payment for burial expenses, subsections (a) and (b) of Section 8, and subsections (h), (k), and (l) of Section 19 of the Workers' Compensation Act and subsections (k) and (k-1) of Section 19 of the Workers' Occupational Diseases Act apply to accidental injuries or diseases that occur on or after February 1, 2006.”

What is a “Member”? No definition in Act Lippens v. AJL, 91IIC25: finger is a member; Porter v. Selectability, 96IIC0320, finger is not a member; (66 2/3%) No cases since Modern Drop Forge? Websters’ defines toe and finger as a “member” of the hand or foot Section 8(e): “listed amounts apply to … the loss of…or complete loss of use of the member specified”: thumb, fingers, toes are specified in scheduled losses Section 8(e)17 (credit for prior loss): “the loss by amputation or partial loss by amputation of any member, including hand, arm, thumb or fingers, leg, foot or any toes”

Greene Welding 919 N.E.2d 1129, 336 Ill.Dec.204 (filed ) Arbitration Petitioner Bobby Kinnaird (06WC08348) DA : “(U)ndisputed…amputation injuries to his right ring and right middle fingers.” Arbitrator White : “The Arbitrator has reviewed the medical records … and finds that Petitioner did suffer loss of bone to the right middle finger into the distal phalanx which results in a statutory award of 50% loss of use of the middle finger…(17.5 wks)…the Petitioner suffered bone loss below the distal phalanx resulting in his entitlement to 100% loss of use of the right ring finger (25 wks).” Arbitrator: “The respondent shall pay the petitioner the sum of $ per week …” (Note before applicability of new minimum) Arbitrator: “Petition for Penalties and Fees is denied.”

Greene Welding 919 N.E.2d 1129, 336 Ill.Dec.204 (filed ) Commission Commission (Lamborn, Sherman, Dauphin) 08IWCC0812, : “The operative report from December 9, 2005 (the date of accident), noted complete amputation right ring finger at the distal phalanx level and right middle finger debridement of skin, soft tissue and bone. The pre-operative diagnosis was noted as partial amputation of the right ring finger and partial amputation of the right middle finger.” “Respondent contends that payment is not due regarding a statutory amputation until the claimant has reached MMI. The Appellate Court in Lester v. Industrial Commission, 256 Ill. App.3d 520…(1993), stated that it was the intent of the legislature that an employee who suffers amputation should be compensated immediately when no dispute exists as to the compensability of the accident. Here there was a clear statutory amputation injury with no dispute…” Lester v. Industrial Commission, 256 Ill. App.3d 520…(1993),

Greene Welding 919 N.E.2d 1129, 336 Ill.Dec.204 (filed ) Commission “In the case at hand, there are clear, unquestionable statutory amputations and Petitioner had returned to light duty work almost a month and a half before the first check was issued to Petitioner (and about 80 days from the accident date). This is consistent with a recent Commission decision of Lierly v. Methode Electronics, 06 IWCC 0901 where payment of statutory payment of PPD was found unreasonable within 60 days. The Commission finds that Respondent did not pay any statutory benefits until after Petitioner had retained counsel.”Lierly v. Methode Electronics, 06 IWCC 0901 “(T)he appropriate benefit rate to be $ per week with the total accrued, towards the statutory loss, during this time being $2, The Commission finds there was an unreasonable and vexatious delay…Respondent's failure to pay these bills ($782) unreasonable and vexatious.” 19(k): $ (50% accrued + medical); and Section 16 fees: $ (20% of accrued + medical)

Greene Welding 919 N.E.2d 1129, 336 Ill.Dec.204 (filed ) Appellate Court App. Ct. (unanimous): “Employer maintains that the court in Lester was unclear as to when payment of statutory amputation benefits were to be paid. We find the Lester court's holding to be clear. Statutory amputations benefits are to be paid ‘immediately’ and ‘promptly.’” “In Modern Drop Forge Corp. v. IC 284 Ill. App. 3d 259…(1996), the court cited the same passage from Lester cited above in affirming the Commission's finding of unreasonable and vexatious delay even where the employer's rationale for delaying payment was to see if the claimant would elect a wage-differential remedy under section 8(d)(1) of the Act instead of the section 8(e) amputation benefit… even if the claimant later elected a wage-differential remedy, any amount he previously received under section 8(a) would be offset against the future award.”Modern Drop Forge Corp. v. IC 284 Ill. App. 3d 259…(1996)section 8(d)(1)section 8(e)section 8(a)

Greene Welding 919 N.E.2d 1129, 336 Ill.Dec.204 (filed ) Appellate Court “Here, the employer maintained before the Commission that it delayed payment of section 8(e) benefits until claimant achieved maximum medical improvement (MMI). The Commission rejected that as a justification, noting that there was no logical reason to withhold the statutory amputation benefit until claimant reached MMI…employer abandons the MMI argument and argues that it did not have sufficient guidance from the court or the Commission to know when it should pay the statutory amputation benefit.”section 8(e) “We reject any implication that a grace period exists…a bright-line test for payment of such benefits. Where there is no dispute regarding whether a claimant's amputation injuries arose out of and in the course of his or her employment, statutory benefits for amputation are to be paid no later than the time at which the employer reasonably knows the extent of the amputation and is capable of calculating the appropriate average weekly wage.”

Greene Welding 919 N.E.2d 1129, 336 Ill.Dec.204 (filed ) Appellate Court “The Commission held that benefits were unreasonably and vexatiously delayed when they were not paid until after claimant sought assistance of legal counsel to secure the payment of those benefits. It also noted that at least 80 days had passed since the accident, and there was no dispute that claimant's injuries arose out of and in the course of his employment. Further, employer had made no showing that the delay was justified. We cannot say that the Commission's finding that claimant was entitled to penalties and attorney fees was against the manifest weight of the evidence.” Petitioner sought Rule 375(b) sanctions BUT: “We find that although the employer's argument is unpersuasive, it is not so lacking in foundation in law and evidence as to merit sanctions.”