1. WCLA MCLE 3-22-2018 Case Law Update March 22, 2018 12:00 noon to 1 pm
James R. Thompson Center Auditorium, Chicago, IL
1 hour general MCLE credit

2. Menard v. IWCC, 450 Ill.App.3d 235 (2010) Travelling to/from IME Not Compensable
The facts in this case are almost indistinguishable from those in Skelgas, 400 Ill. 322 (1948). Here, claimant filed an application for adjustment of claim alleging a psychological injury while in respondent's employ. Claimant was subsequently discharged from respondent's employ. Thereafter, claimant underwent an IME at respondent's request. Claimant filed a second application for adjustment of claim alleging a physical injury while preparing to travel home from the IME. Like the employee in Skelgas, who traveled to Bloomington for the sole purpose of undergoing the IME at the employer's request, the sole reason claimant was in Chicago was to attend the IME requested by respondent. Claimant suggests that Skelgas is bad law and that the decision "should never have been authored or, once authored, should have been overturned many years ago in order to more accurately comport with the purpose of the Act." However, claimant cites no authority for these propositions.
Claimant also suggests that, in attending the IME in Chicago, she was acting within the scope of her employment because she attended the examination at the direction of respondent. This argument has been rejected by our supreme court. In Skelgas, for instance, the court acknowledged that under section 12 of the Act, an employer has the right to have an employee requesting workers' compensation benefits undergo an independent medical examination. However, the court described this "statutory right" as being "entirely independent of the relationship of employer and employee." In a subsequent case, the supreme court explained that the failure of an employee to accept medical treatment at the request of an employer does not constitute a term or condition of employment since the failure to comply with the employer's request "results only in the suspension or reduction of an award of compensation benefits, not in the suspension or termination of the employment relationship." Lee, 167 Ill. 2d 77 (1995); see also King, 301 Ill.App.3d 958 (1998). Therefore, we find unpersuasive claimant's argument that her attendance at the IME constituted a condition of her employment.

3. Perez v. IWCC 2018 IL App (2d) 170086WC
Commission issued a decision on remand, ordering the employer to pay $17, for medical expenses under sections 8(a) and 8.2(e) of the Act, representing the total amount of $17, paid by claimant’s husband’s health insurance provider under its group health insurance plan “and deductibles/copays of $ ”
On appeal, Petitioner argues the Commission erred in ordering the employer to pay medical expenses in a lower amount negotiated and paid by a third party insurance carrier, and not the stipulated fee schedule amounts.
“The employer shall provide and pay the negotiated rate, if applicable, or the lesser of the health care provider’s actual charges or according to a fee schedule…”

4. Perez v. IWCC 2018 IL App (2d) 170086WC
In cases of statutory construction, the cardinal rule is to ascertain and give effect to the intent of the legislature.
Contrary to claimant’s assertion, there is no limiting language that requires the employer to pay the negotiated rate only when it is negotiated by the employer or the employer’s own insurance carrier.
Contrary to claimant’s argument, the plain language of section 8(a) of the Act indicates that the legislative intent was to provide relief to injured employees only to the extent reasonably required to cure or relieve claimant from the effects of a workplace injury.
Specifically, the Act provides that the employer shall pay medical expenses “limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.” (Emphasis added.) Id. Here, consistent with the legislative intent of the statute, and specifically in regards to her medical expenses, claimant was cured or relieved from the effects of her injury once the employer paid the negotiated rate of $17, with a $0 balance remaining. See Tower Automotive, 407 Ill. App. 3d at 437 (“By paying, or reimbursing an injured employee, for the amount actually paid to the medical service providers, the plain language of the statute is satisfied.”). To award claimant any amount for medical expenses beyond the amount actually paid to the medical service providers would result in a windfall to claimant.

5. Dobbs Tire & Auto v. IWCC 2018 IL App (5th) 160297WC
Appeals were consolidated for purposes of oral argument and opinion
Stolte: Employer filed a motion to dismiss, stating that it had paid the award in full, including interest in the amount of 0.11% pursuant to section 19(n) of the Act. 820 ILCS 305/19(n). The employer requested that the circuit court dismiss the claimant’s motion, arguing that section of the Code (735 ILCS 5/2-1303) does not apply because the award had not been reduced to judgment at the time the award was paid. Granted. Employee appealed.
Adams: Circuit court ordered the employer to pay 9% interest ( ) on the award from the date that the circuit court affirmed the award. Employer appealed.

6. Peggy Stolte v. St. Anthony’s 11WC47860; 14IWCC0101
: Arbitration Decision (awarded benefits: 25% WP, approx. $29000)
: IWCC Affirmed
Cir. Ct. Confirmed
2015: App. Ct. Affirmed (2015 IL App (5th) WC-U)
1-6-16: Respondent says paid in full at .11% 19(n) interest3-9-16: Motion for Enforcement of Judgement & Interest at 9% Per Annum...19(g)”
Motion Dismissed

7. Ted Adams v. Dobbs Tire 02WC063120; 12IWCC0012
: Arbitration Decision (benefits awarded: PTD & $230,00 medical)
1-6-12: IWCC affirms
: Cir. Ct. Confirms
2013: App. Ct. Affirmed (2013IL App (5th) WC-U
: Respondent says paid in full at .13% 19(n) interest ($1000)
9-2-14: “Motion for Enforcement of Judgement & Interest at 9% Per Annum...19(g)”
: Motion Granted; Cir. Ct. orders interest at % ($72,000)

8. 19(g) Judgment on Award
19(g) Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court, and shall with like effect, be entered and docketed. The Circuit Court shall have power at any time upon application to make any such judgment conform to any modification required by any subsequent decision of the Supreme Court upon appeal, or as the result of any subsequent proceedings for review, as provided in this Act. Judgment shall not be entered until 15 days' notice of the time and place of the application for the entry of judgment shall be served upon the employer by filing such notice with the Commission, which Commission shall, in case it has on file the address of the employer or the name and address of its agent upon whom notices may be served, immediately send a copy of the notice to the employer or such designated agent.

9. 19(n) Interest
19(n) After June 30, 1984, decisions of the Illinois Workers' Compensation Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to the yield on indebtedness issued by the United States Government with a 26-week maturity next previously auctioned on the day on which the decision is filed. Said rate of interest shall be set forth in the Arbitrator's Decision. Interest shall be drawn from the date of the arbitrator's award on all accrued compensation due the employee through the day prior to the date of payments. However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, interest shall not further accrue from the date of such appeal. The employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.

10. Judgment Interest
Sec Interest on judgment. Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. Interest shall be computed and charged only on the unsatisfied portion of the judgment as it exists from time to time. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.

11. Father Radosevich v. IIC 367 Ill.App 3d 769 (2006)
No authority that requires an explicit refusal to pay an award before a claimant can bring a successful 19(g) Application.
Cases such as Ballard, 172 Ill. App. 3d 41 (1988), and Folks , 93 Ill. App. 3d 19 (1981), are cited for the proposition that a claimant is not entitled to section 19(n) interest on benefits that accrued after the arbitrator's award. However, upon further review of these cases and the clear language of section 19(n), specifically that “interest shall be drawn from the date of the arbitrator's award", we decline to follow Ballard, Folks, and cases with similar holdings.
In the case at bar, claimant is entitled to Sec. 19(n) interest on the arbitrator's award of September 17, 2002, which became the Commission's decision on October 16, 2002, through the date of payment, as to all amounts not included in the Sec. 19(g) judgment.

12. Dobbs Tire & Auto v. IWCC 2018 IL App (5th) 160297WC
Sole issue raised on appeal is whether the 9% judgment interest rate set forth in Section of the Code (735 ILCS 5/ applies to IWCC award prior to the award being reduced to judgment by Circuit Court pursuant to section 19(g) of the Act. 820 ILCS 305/19(g).
Requires this court to interpret the interplay between several statutory sections…Issues involving the interpretation of a statute present questions of law that we reviewed novo.
Appellate Court has found that such a judgment and interest award is contrary to law in Radosevich, 367 Ill. App. 3d 769 (2006), and Sunrise Assisted Living, 2015 IL App (2d)

13. Dobbs Tire & Auto v. IWCC 2018 IL App (5th) 160297WC
Reasoning in Radosevich and Sunrise Assisted Living is sound and clearly disposes of the issue raised in these appeals
Employer did not refuse to pay before Petitioner implemented section 19(g). When employer tendered full payment of what was owed, Petitioner was no longer entitled to judgment under Sec. 19(g). Without a judgment, Petitioner was not entitled to additional interest under Sec of the Code.
Sec (a)(8) of the Administrative Review Law (735 ILCS 5/3-111(a)(8) gives the circuit court’s affirmance of the arbitrator’s award on appeal the status of a judgment that could be enforced as other judgments, including the accrual of interest pursuant to section of the Code.
BUT…Administrative Review Law has no bearing on WCA sets forth specific procedure for review of IWCC award, interest on the award during this process, and the conversion of the award into a judgment at the conclusion of review.

14. Administrative Law Act
(735 ILCS 5/3-111)
Sec Powers of circuit court.(a) The Circuit Court has power... (8) in case of affirmance or partial affirmance of an administrative decision which requires the payment of money, to enter judgment for the amount justified by the record and for costs, which judgment may be enforced as other judgments for the recovery of money

15. Rechenberg v. IWCC 2018 IL App (2d) 170263WC
We agree with the employer’s argument and find the Cir. Ct. erred by reversing the IWCC decision
Parties first disagree on the appropriate standard of review...Employer maintains that IWCC decision should not be overturned unless it is against the manifest weight of the evidence while claimant argues that a clearly erroneous standard of review applies. We agree with the employer.
In certain cases, a clearly erroneous standard of review has been applied where the issue presented on appeal contained a mixed question of law and fact: “ A mixed question is one involving an examination of the legal effect of a given set of facts, that is, where the facts and law are established and the issue is whether the facts satisfy a certain statutory standard. ”
Here, the relevant underlying facts have not been “established” and are very much in dispute. Thus, we are not simply examining the legal effect of a given set of facts but, instead, considering the Commission’s resolution of disputed facts, including the manner in which it resolved evidentiary conflicts and assessed witness credibility. Thus, the appropriate standard of review in this case is the manifest-weight-of-the-evidence standard.
Additionally, we find that the clearly erroneous standard is inapplicable when reviewing decisions of the IWCC... We emphasize that, unless and until the supreme court directs otherwise, we continue to apply only the manifest weight-of-the-evidence and de novo standards of review when reviewing decisions of the IWCC

16. Rechenberg v. IWCC 2018 IL App (2d) 170263WC
Both parties’ medical experts largely agreed that the history and mechanism of injury described by Petitioner was not a reasonable or likely cause of the right shoulder condition
Prior to testifying at arbitration, Petitioner repeatedly and consistently described a repetitive-trauma type work injury. Dr. Alturi opined claimant’s right shoulder injuries were most “consistent with a traumatic rotator cuff tear from a fall that was painful.” He did not believe it was possible for claimant to have caused or aggravated her rotator cuff tear with the type of work activities she described to him, which involved constantly moving and repositioning a patient.
In providing his opinions, Dr. Izquierdo reiterated several times that “if there was a reported and documented moment or incident in time [claimant] could have made [her rotator cuff tear] bigger.” However, he also repeatedly stated that he was never provided with such a history by claimant. As a result, Dr. Izquierdo could not offer an opinion on causation based on a reasonable degree of medical certainty.

17. Rechenberg v. IWCC 2018 IL App (2d) 170263WC
Based on the history provided to him by claimant, whom the Commission found was not credible. The Commission’s credibility determination is also supported by the record.
First, IWCC found claimant was not credible regarding her December 2013 fall at home. It noted that although claimant tried to minimize the fall when testifying at arbitration, stating that she merely missed a single step, fell to her buttocks, and “bumped” her right shoulder, it was nevertheless significant enough that symptoms in claimant’s right upper extremity continued to bother her one month later.
Second, IWCC also found claimant was not credible because, contrary to her testimony at arbitration, neither her accident report nor the medical histories she provided delineated “a specific episode of sudden or significant pain while lifting a particular patient on January 18, ” The evidence at arbitration supports this finding, showing claimant’s first report of an “oh wow” or “oh boy” moment of experiencing symptoms was while testifying at arbitration. Her arbitration testimony also occurred after claimant attended Dr. Izquierdo’s deposition and heard him describe the importance of such a specific painful moment in time relative to claimant’s condition of ill-being. As the Commission found, claimant’s “subsequent testimony at arbitration gives a strong indication that an effort was made to closely conform to [Dr. Izquierdo’s] reasoning in order [to] show causation.”

18. Rechenberg v. IWCC 2018 IL App (2d) 170263WC
She argues that “ ‘[a] chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee’s injury. However, in this case, the Commission determined claimant’s descriptions of both her initial injury and her condition of ill-being prior to her alleged work accident were not credible.
Specifically, claimant testified to only three specific days that she worked during the relevant time period between her fall at home and her alleged January 18, 2014, work accident.
Here, the record contains sufficient support for the Commission’s decision, thus an opposite conclusion from that reached by the Commission is not clearly apparent. As a result, the Commission’s finding that claimant failed to prove a compensable injury was not against the manifest weight of the evidence.