WCLA MCLE W.B. Olson: Voc Rehab & FCE’s Thursday December 6, :00 pm to 1:00 pm James R. Thompson Center, Chicago, IL 1 Hour General MCLE Credit Richard E. Aleksy; Corti, Aleksy & Castaneda Daniel J. Ugaste; Nyhan, Bambrick, Kinzie & Lowry

Bonus Issue TTD Stipulation Binds Respondent on Causation Hector Fontalvo v. Food Team, 12 IWCC 565 The Commission finds Petitioner's current cervical condition is causally related to the May 31, 2006 work accident. The Commission reached this decision based on a couple of different factors. One, the Commission notes that the parties stipulated on the Request for Hearing form that Petitioner was temporarily totally disabled from June 1, 2006 through October 22, 2009 for a total of 176-4/7 weeks. Pursuant to the Appellate Court's holding in Walker, 345 Ill. App. 3d 1084 (2004), the Commission holds the parties and the Commission are bound by the previous stipulation and the Commission cannot ignore or change the stipulation entered into by the parties. Furthermore, any subsequent activities or lack thereof by the Commission and the parties has not negated the earlier stipulation of temporary total disability benefits entered into by the parties. Additionally, since there cannot be an award on an underlying benefit without first finding in favor of the threshold issue of causation, the Commission finds based on the stipulation that Petitioner's cervical condition is causally related to the May 31, 2006 work accident.Walker, 345 Ill. App. 3d 1084 (2004),

Vocational Rehabilitation Section 8(a) The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto. If as a result of the injury the employee is unable to be self-sufficient the employer shall further pay for such maintenance or institutional care as shall be required…Any vocational rehabilitation counselors who provide service under this Act shall have appropriate certifications which designate the counselor as qualified to render opinions relating to vocational rehabilitation. Vocational rehabilitation may include, but is not limited to, counseling for job searches, supervising a job search program, and vocational retraining including education at an accredited learning institution. The employee or employer may petition to the Commission to decide disputes relating to vocational rehabilitation and the Commission shall resolve any such dispute, including payment of the vocational rehabilitation program by the employer. The maintenance benefit shall not be less than the temporary total disability rate determined for the employee. In addition, maintenance shall include costs and expenses incidental to the vocational rehabilitation program. (Underlined portions added by PA94-277, eff , applicable to injuries after ).

FCE & Sections 12 & 19(c) Sec. 12. An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, at any time and place reasonably convenient for the employee, either within or without the State of Illinois, for the purpose of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this Act. An employee may also be required to submit himself for examination by medical experts under subsection (c) of Section 19. Sec. 19(c) (1) At a reasonable time in advance of and in connection with the hearing under Section 19(e) or 19(h), the Commission may on its own motion order an impartial physical or mental examination of a petitioner whose mental or physical condition is in issue, when in the Commission's discretion it appears that such an examination will materially aid in the just determination of the case. The examination shall be made by a member or members of a panel of physicians chosen for their special qualifications by the Illinois State Medical Society. The Commission shall establish procedures by which a physician shall be selected from such list.

Petitioner Chooses Voc Rehab David Hir v. City of Joliet, 04 IIC 0614: “Petitioner may accept the assistance of a vocational counselor chosen by Respondent, or he may select a rehabilitation provider of his own choosing. Costello v. Baxter Healthcare, 95 IIC 451; see Thut v. Mike Nicholas, Inc., 89 IIC 392; Avenarius v. Consolidated Freightways, 86 IIC 1498.”

IME & FCE Walden Pomelow v. Blaw-Knox, 07 IWCC 1113: Respondent filed Motion to Suspend Compensation Benefits and to Continue Trial Setting for failure to attend FCE ; denied by Arbitrator; Commission affirmed denial: “Under Section 12, Petitioner was required to submit himself to a qualified medical practitioner…not to an industrial rehabilitation consultant…The Commission concludes that Respondent did not have the right to terminate Petitioner’s benefits upon Petitioner’s refusal to attend a functional capacity evaluation” Contrary result: Sandra Rainford v. Jewel, 07 IWCC 1624: TTD terminated by Commission on date when IME Dr. Kelikian had recommended FCE but Petitioner refused to do it

Craig Kolin v. W.B. Olson 06WC DA year old construction laborer 2 x’s SX right knee by Dr. Chan & 2 nd opinion from Dr. Bush-Joseph FCE = “light medium,” then aborted work hardening 1 st IME Dr. Tonino: released with FCE restrictions : 1 st 19(b): accommodated job offer was inappropriate (two hours driving each way) Petitioner begins Voc Rehab with Tom Grzesik Dr. Bush-Joseph recommends knee replacement, Dr. sporer does it FCE = “light medium” Got CDL, truck driving job fell through for insurance reasons Continued Voc Rehab with Grezesik, 80 resumes per month 2 nd IME Dr. Tonino: MMI & recommended FCE Respondent Voc expert Daniel Minnich, refused permission, but formulated plan

Craig Kolin v. W.B. Olson 06WC Arbitrator’s Decision Petitioner was credible Grzesik was credible Minnich is “less than credible” Grzesik was “appropriate…The Commission in the past has found that the right to select a voc rehab specialist is akin to selecting a medical provider and that the petitioner’s choice is the appropriate one.” Citing Roper Contracting, 349 Ill.App.3d 500 (2004) Award for “vocational rehabilitation expenses due and owing to Mr. Grzesik” Award for maintenance

Craig Kolin v. W.B. Olson 06WC Commission Decision 11 IWCC 0126; ; A & A with clarifications The Arbitrator correctly stated that Petitioner “has the right to select his vocational rehabilitation counselor under Section 8(a),” but distinguishes Roper Commission finds Petitioner to be “credible overall” despite surveillance Commission finds Minnich to “less than credible” Commission finds it “unnecessary and inappropriate to order either a repeat FCE or formal voc rehab” Dissent: Is Voc Rehab necessary? To be effective, must know true capabilities and new FCE should be done Circuit Court confirms

W.B. Olson, Inc. v. IWCC 2012 IL App (1 st ) WC Voc Rehab Filed Respondent argues that “appropriateness of Voc Rehab is contrary to manifest weight” NO. Section 8(a) is “flexible” and is not limited to “formal training” even though Respondent argued its plan was “more focused” and would have resulted in a “more expedient return to work” “In light of our resolution of this issue, we need not address the claimant’s argument that, as a matter of law, Section 8(a) confers upon claimants the right to select their vocational rehabilitation provider and precludes employers from dictating that choice.” Respondent “next argues that the Commission erred in requiring it to pay for the services rendered by Grzesik.” NO. “The fact that the Commission determined that future vocational rehabilitation were not necessary does not negate the legal or factual basis for the award of payment of reasonable and necessary services previously rendered.”

W.B. Olson, Inc. v. IWCC 2012 IL App (1 st ) WC FCE Respondent “also challenges the Commission’s refusal to order that the claimant submit to an FCE, as recommended by Dr. Tonino.” NO. Statutory construction=matter of law=de novo “Thus, the explicit language of section 12 expressly limits the right of an employer to demand an examination by a medical practitioner or surgeon.” PT is not medical practitioner. Dorland’s Illustrated Medical Dictionary. Nor section 19(c): similarly limited to a panel of “physicians” No due process violation “merely because a section 12 examiner lacks authority to require additional FCE testing”