Workers’ Compensation Mock Trial Presented to ASSE Joint Meeting with RIMS-Chicago November 15, 2011

Introduction Mike Scully Arbitrator Michael Milstein Petitioner Matt Belcher Petitioner’s attorney Rich Lenkov Respondent’s attorney Rob Seymour Surveillance expert

Timeline 9/5/10: Petitioner injures right knee while playing basketball. Seeks treatment with Dr. Anderson. No MRI ordered, prescribed pain medication. 10/5/10: Petitioner returns to Dr. Anderson, continuing to complain of pain. Given additional prescription for pain medication. Petitioner does not follow-up. 12/3/10: Chicago receives approximately 3-4 inches of snow. 12/5/10 at 8:30 am: Petitioner, a salesman for Munder Difflin (a paper company) slips and falls on snow and ice in the parking lot injuring his right knee while coming into work. The parking lot is not owned by the employer. The parking lot is open to the public. ◦ There is a contract with Mr. Plow to remove the snow and ice from the parking lot, but Mr. Plow has not done the job well and large amounts of snow and ice remained in the parking lot. ◦ Case is denied by Munder Difflin’s carrier

Timeline 12/5/10 at10:00 am: Petitioner is seen at the emergency room. ◦ X-rays do not reveal any abnormalities. Diagnosed with knee sprain and kept off work for 2 days. 12/6/10: Petitioner retains Matt Belcher. Mr. Belcher makes demand for TTD and medical treatment. 12/7/10: Petitioner presents to Dr. Kutem who orders an MRI, which reveals a torn medial meniscus. Dr. Kutem refers Petitioner to Los Expensivos Chiropracticos for chiropractic care. If chiropractic care is not successful, surgery recommended. 2/16/11: Surveillance of Petitioner. 12/7/10 - 3/13/11: Petitioner presents for 70 chiropractic sessions with minimal improvement. Petitioner incurs over $50, in chiropractic bills. 12/7/10 - 3/13/11: Petitioner is kept off work.

Timeline 3/21/11- Petitioner undergoes surgery to repair the torn meniscus. 4/4/11 - 5/30/11: Petitioner presents for physical therapy with Reputable Physical Therapy. 5/31/11- Petitioner is released to the medium physical demand level. 3/14/11 - 5/31/11: Petitioner is kept off work. 6/1/11: Petitioner returns to light duty, no lifting greater than 30 pounds frequently and need to alternate between sitting and standing. Petitioner continues to complain of pain and weakness in his right knee. 11/15/11: Trial set before Arbitrator Scully.

Discussion What are the key issues? Who is more credible? What evidence was strongest? Who should win? What did you think of the process?

2011 Illinois Workers’ Compensation Reform Key Components Carpal Tunnel Syndrome  Repetitive or cumulative traumas only  CTS awards capped at 15% loss of use of the hand (28.5 wks)  For “clear & convincing evidence” award can increase to 30% (57 wks) Preferred Physician Panels (PPPs)  If no PPP, current law applies: o employee can choose 2 doctors and all referrals  If PPP: o employee can opt out in writing and choose 1 doctor and all referrals o employee can opt in and choose 2 doctors all referrals Arbitrators  9 not re-appointed  21 re-appointed  8 newly appointed  3-year terms  Must be IL- licensed attorneys (current non- attorneys grandfathered in)  Minimum of three arbitrators in all venues Fee Schedule  If fee schedule amount is in place: charge shall be no more than 70% of fee scheduled amount  If not fee scheduled: reimbursement will be 53.2% (remains at 76% until 9/1/11 Intoxication  No compensation: o intoxication is proximate cause of injury o so intoxicated that the intoxication was departure from employment  Employee overcomes rebuttable presumption by proving, by preponderance of evidence, that intoxication was not “sole proximate cause” of injury PPD  AMA guidelines to be used to determine impairment along with 4 other factors (occupation, age, future earning capacity, evidence of disability in medical records)  No single factor shall determine disability Utilization Review  If UR denies treatment, employee has a burden to show treatment is reasonably required  UR only for extent & scope of treatment  UR professional must be available in IL or by phone for deposition Wage Differential  Age 67 or 5 years, whichever is later

Q & A Rich Lenkov: Mike Scully: Michael Milstein: Rob Seymour: Matt Belcher: