1-15-2017; Subrogation--Difficulty Increases when Claimant Doesn't Take the Initiative by Shawn Biery; Lindsay Vanderford on the Importance of Documenting Absences and more

Synopsis: Subrogation--Difficulty Increases When Claimant Doesn’t Take the Initiative!! Research and Analysis From Shawn Biery, J.D., M.S.C.C.

Editor’s comment: We advise our clients, law students and seminar attendees to always pay attention to subrogation issues and to insure close awareness, sometimes even intervening after Petitioner files a third party claim. It is even less common when a Petitioner in a WC claim has a potentially viable third party claim which isn’t pursued until the employer files the third party action. In a recent case, the Illinois 1st District Appellate Court has sent the question back to the Cook County trial court to determine whether an injured worker would be adequately represented in a subrogation case if she were not allowed to directly intervene.  


In A&R Janitorial v. Pepper Construction Co., 2017 IL App (1st) 170385 (December 27, 2017) (HOWSE) the appellate court reversed and remanded a matter finding the hearing court erred in denying employee's petition to intervene in action filed by her employer against Defendants as employee's subrogee pursuant to Section 5(b) of Workers' Compensation Act.


Factually, Teresa Mroczko was working for A&R Janitorial at a Blue Cross Blue Shield building in Chicago when a desk fell on her. Pepper Construction Co. was hired to replace carpeting as part of a renovation project, and it is alleged an employee of its subcontractor, Perez & Associates, moved the desk that fell on Mroczko.

Mroczko filed a WC claim against her employer for which she has received more than $342,000 in benefits to date of the initial decision, according to the appellate court’s decision. In June 2015, Mroczko filed a personal injury claim against Pepper Construction, Perez & Associates, Interface America Inc., and the Blue Cross and Blue Shield Association. The claim was dismissed as untimely in December 2015 as she had not filed within the applicable WC two year statute of limitations. Her  argument was the injury was the direct result of construction work, and said the four-year statute of limitations for bringing such a claim was applicable. However the circuit court said the two-year statute of limitations under the Workers’ Compensation Act applied to her third-party claim for liability.

Her employer however timely filed a complaint to protect its subro rights against Pepper Construction Co. and Perez & Associates in August 2014. So Mroczko, in November 2016, petitioned the court to intervene in her employer’s claim, saying she would not be adequately represented by attorneys for A&R Janitorial—arguing they would only seek their recovery for amounts paid in workers’ compensation benefits. She argued she should still be entitled to additional damages for pain and suffering.

The trial court in December 2016 denied the petition to intervene under the doctrine of res judicata (or claim preclusion to some) which prevents a party from filing the same claim against the same party after a court has already ruled on the merits in an identical case.

Mroczko filed an appeal, and while the case was pending, her employer filed an amended complaint seeking damages to cover pain and suffering, which the circuit court allowed. The underlying case settled for $850,000 while the appeal was pending.

The appellate court said whether Mroczko’s interests would be adequately protected if she were not allowed to intervene is a threshold issue the trial court neglected to answer. As such, the trial court abused its discretion by applying an improper legal standard in denying the petition, the appellate court said. The appellate court said Mroczko clearly has an interest in her employer’s case, because the employer was seeking to recover damages for her pain and suffering.

The court in part noted “Appellant contends plaintiffs cannot adequately represent her interests based on her argument that plaintiff has an incentive to settle for an amount less than, or equal to, what plaintiff paid in the workers’ compensation claim”. “On appeal, plaintiff contends it will adequately represent appellant’s interests because plaintiff may not be fully indemnified if it does not pursue maximum damages.”

Mroczko also argued her employer’s attorney had a conflict of interest—and the employer argued to refute the allegations of a conflict by arguing it never represented Mroczko, a statement the appellate court said was “incongruent” with its argument that it has every incentive to pursue maximum damages in the third-party liability case. In short, the appellate court said the statement called into question whether Mroczko’s employer was adequately representing her interest in the subrogation case.

The appellate court remanded the case for the trial court to reach a decision on whether Mroczko’s rights will be adequately represented if she is not allowed to directly intervene in the case.

We will report on any follow up decision as it becomes available. The takeaway for interested observers regardless of the final decision in this particular case, is how important it is to ensure timely filing of any third party claim when subrogation is potentially viable. We track the subrogation deadlines in claims with any potential viability and report same to our clients on all claims we defend to ensure any potential recovery is not lost due to a lack of filing.

This article was researched and written by Shawn R. Biery, JD, MSCC, who also testified as an expert witness in the underlying claim. You can reach Shawn with any questions about subrogation issues or any other employment or workers’ compensation related questions at sbiery@keefe-law.com.


Synopsis: A Recent Federal District Court Decision Echoes Our Recommendation – Document, Document, Document. Thoughts and Analysis by Lindsay R. Vanderford, JD. 

Editor’s comment: On October 31, 2017, the USDC for the Middle District of Pennsylvania granted summary judgment against an employee claiming age-based harassment and a hostile work environment after being terminated for an overabundance of non-FMLA related absences.


Mary Beth Bertig was a nurse’s aide working for a hospital named Julia Ribaudo Healthcare Group. She suffered from cancer and asthma. In a one year period from 2013 – 2014, while she was certified for Family and Medical Leave Act (FMLA) leave for her cancer and asthma, she incurred thirteen intermittent absences. Though some of these absences were related to her cancer and asthma, several others were unrelated. Due to the employer’s diligent documentation of these absences, litigation ended at the summary judgment level, well before major ongoing litigation and its related costs would be realized.


Under the hospital's policies, employees were subject to termination when they accrue seven absences in a rolling twelve month time frame. When Claimant Bertig reached and exceeded this allowance, the hospital terminated her employment.


The question before the court, and a consistent issue for employers, is whether an employee can lawfully be terminated for non-FMLA absences while others are authorized under the FMLA. Employer concerns include whether an employee will later claim they reported leave under an FMLA basis, so termination should not have been a consideration.


The Ruling


The USDC for the Middle District of Pennsylvania (Judge James Munley) summarized its reasoning as follows:


Bertig was entitled to take leave under the FMLA; however, by her own admission, most of her absences between April 2013 and April 2014 were unrelated to her cancer and asthma. Setting FMLA approved absences aside, Bertig still missed ten days of work for unrelated reasons, three absences more than allowed by employees prior to consideration of termination. (Bertig v. Julia Ribaudo Healthcare Group, 3:15-cv-2224-JJM).

Thoughts for Employers – Document, Document, Document


Judge Munley’s decision to dismiss Bertig’s claims was largely facilitated by her employer’s diligent policy for documenting absences and discipline. Therefore, three critical strategies are:


Document Absences In Detail

Bertig’s supervisor documented each absence and the reasons for the absence on an endorsed one-page report. These reports became the key to later consideration of termination and central to the court’s grant of summary judgment, as the employer had an actual document explaining why the employee was absent on any of the thirteen occasions discussed supra.


We at KCBA would be happy to provide thoughts and documentation to help you document absences in detail and gain success should a similar situation ever arise for your business. Just send a reply to Lindsay at her email below.


Audit Absences Prior to Making a Decision on Termination

While termination is being considered, be sure its basis is supported by those detailed reports. Confirm the pertinent absences serve as the basis for the termination decision, and verify neither approval under the FMLA or the Americans with Disabilities Act (ADA) could have been involved.


Conduct Ongoing and Interactive Discipline Processes

Unfortunately, some employers have not had sufficient dialogue with an employee to advise of expectations and whether or not they are being met. Engaging in “progressive discipline” and supporting an argument the employer did all it could to help the employee succeed leading up to termination adds a strong defense against an FMLA or ADA claim.


This article was researched and written by Lindsay R. Vanderford, JD. Lindsay can be reached with any questions related to workers’ compensation defense and employment law defense at lvanderford@keefe-law.com.

1-9-2018; Will IL WC Wage Differential Claims Disappear for Low-Medium-Level Workers?; Will IL, IN, WI, MI and IA Work Comp Systems Ever More to Virtual Hearings; New IRS Mileage Rate and More

Synopsis: Will IL WC Wage Diff Claims Disappear for Low and Medium Wage Workers?


Editor’s comment: We have been asked repeatedly about Illinois workers’ comp odd concept of wage differential benefits. I have attacked/criticized this concept repeatedly during my years as a defense attorney. The problem with wage differential awards is the concept strongly encourages malingering, hiding and other balderdash by injured workers to get on the gravy train.


Here is how that works. You have an injured worker who has to be able to occasionally lift up to 75lbs to do their job. There is no dispute they unfortunately blow out a shoulder in a job that pays them $11 an hour. The worker gets shoulder surgery and ends up with a 40lbs. lifting restriction. Thereafter the injured worker disappears from sight.


Some Claimant attorneys in this nutty State will ask for total and permanent disability benefits, asserting the worker cannot return to the prior job due to the post-accident work restriction. Most Arbitrators and Commissioners, in pretrial settings, will quickly put the kibosh on T&P awards/settlements because the money is simply too high and the outcome egregious because the worker will be asking for lifetime benefits at our high minimums and maximums for T&P awards plus our goofy Rate Adjustment Fund benefits. It is not impossible for exposure on a mid-range IL WC T&P claim to exceed $2M. That is wildly high for a worker who simply had one operation to one shoulder! Most hearing officers balk at such claims.


Plan B for some Arbitrators and Commissioners are wage differential awards. Some of the hearing officers will say Claimant can and should be making “minimum wage”—the current federal minimum wage is fairly low at $7.25 per hour. There is no sign the federal minimum wage is going up under the current conservative folks in the White House and U.S. Congress. Since Claimant has disappeared and no one knows if he/she has a job, the Arbs and Commissioners will “impute” a minimum wage job to the worker and argue the worker should get the benefit of hiding to receive wage loss diff benefits.


In the case of the worker above, they were making $11 per hour and “imputing” a $7.25 per hour minimum wage would entitle the worker to wage diff of $100 a week or $5,200 a year. For a 25-year-old worker with a 50 year work expectancy, they could receive an award worth $260,000. Most folks, including me, consider that a LOT of money for a single operation to one shoulder.


New IL Minimum Wage Never-Ending Increases May End Wage Diff for Mid and Low-Paid IL Workers


Please note the next Illinois state-wide election is in 11 months. All Democratic gubernatorial candidates have signed off on a minimum wage of $15 per hour or $600 a week. If a Dem wins and gets into the Governor’s mansion, the IL minimum wage will almost certain rise dramatically within a month of the election.


Cook County raised their minimum wage to $10 an hour on July 1, 2017. The wage rises to $11 on July 1, 2018 and to $12 in July 2019. It hits $13 an hour in 2020, and subsequent annual increases will be at the rate of inflation, not to exceed 2.5 percent. The suburbs will be a year behind the city, which will reach $13 an hour by July 2019.


The City of Chicago's ordinance already raised the hourly minimum wage to $12 in 2018, and $13 in 2019, indexed annually to the Consumer Price Index (CPI) after 2019.


So jobs in Chicago are at no less than $480 a week right now and $520 in one year and should continue to rise basically forever. It mildly boggles the mind on how an Arbitrator or Commissioner can accurately ascertain the values of Section 8(D-1) benefits when the amounts of future wages are certain to increase and may eventually double based on legislatively required increases in the minimum wage based on the CPI.


In short, wage loss for middle and low wage workers appears to be ending. For IL WC Arbitrators and Commissioners, it would be challenging to “set” a wage diff award, as the minimum wage is going to be spiral for the rest of the lives of all IL workers.


We appreciate your thoughts and comments. Please post them on our award-winning blog.


Synopsis: Will IL, IN, WI, MI and IA Workers’ Comp Systems Ever Move to “Virtual WC Hearings?”


Editor’s comment: As I have told my readers repeatedly, IL Workers’ Comp adjudication costs are very high for a State of our size. Everything also moves very, very slooooooooowwww. We also have more hearing officers than any of our sister States. The State of Illinois, as one of the five states where KCB&A provides great defense work, remains reluctant to implement Virtual Hearing technologies to streamline hearings and save money.


Disputed IL WC claims can be torturous to litigate for the defense--we have lots and lots of defense clients who truly cannot stand coming to IWCC arbitration hearings to sit around all day and then find out their contested claim is continued. This is even tougher with a contested claim and lots of defense witnesses—no one wants to take a number of supervisors away from their work sites to sit and sit and do nothing. Our clients would love to have virtual hearings set by the hearing officer and proceed online as planned.


We recently became aware the State of New York has moved to Virtual Hearings to prevent long auto drives, insure hearings are actually conducted and save lots of extra unneeded expense. We consider this concept a model for all states to follow.


Take a look at this link: http://www.wcb.ny.gov/virtual-hearings/


You will learn New York WC Virtual Hearings allow injured workers, attorneys/representatives, witnesses and other participants to attend hearings online. Participants will no longer have to travel to a hearing site to attend their hearing.

Virtual Hearings will be rolled out gradually to districts throughout New York State after the successful completion of the Board's Virtual Hearing pilot.

When a New York citizen, attorney or witness is eligible to attend a hearing virtually, they will see a notification of "Virtual Hearing Available"  at the bottom of your hearing notice, along with detailed instructions.


Virtual Hearings for Claimants


To take part in a New York Virtual Hearing, they must:



How they attend a Virtual Hearing


1.      Enter their Hearing ID, first name, last name and email address; select continue

2.      Select their Role

3.      Wait for the hearing to be called


Webinar Virtual Hearing Training


The New York WC Board is hosting a series of webinar training sessions for attorneys and representatives to provide instructions on how to attend their hearings virtually, as well as how to use the new check-in procedure when appearing in person.


Virtual Hearings for Witnesses and Other Participants



We hope the powers-that-be get moving on using technology to streamline hearings, save money and bring our WC systems to the 21st Century. We appreciate your thoughts and comments. Please post them on our award-winning blog.




Editor’s comment: On December 14, 2017, the Internal Revenue Service released the optional standard mileage rates to use for 2018 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes.. Beginning January 1, 2018, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:

•54.5 cents per mile for business miles driven—this rate is used for IME’s or what some call Section 12 examinations.

18 cents per mile driven for medical or moving purposes

•14 cents per mile driven in service of charitable organizations

The standard mileage rates for business, medical and moving purposes are based on an annual study of the fixed and variable costs of operating an automobile. The business mileage rate and the medical and moving expense rates each increased 1 cent per mile from the rates for 2017. The charitable rate is set by statute and remains unchanged.


Synopsis: The KCB&A Monday Law Updates are archived on the KCB&A blog!

Editor’s comment: If you are looking for any article previously written in this update, or just want to browse through a host of insightful articles dealing with our Illinois Comp system, stop on over to KCBA Blog and take a look. The blog currently includes archived articles dating back to August 2008.

Synopsis: Another of Gene’s Friends Publishing an Amazing New Book—take a look online at www.ShellyKewWrites.com!!

1-1-2018; Biery + Ignoffo Analyze Cook Cty MSA Ruling with Nat'l Impact; IL WC Costs Will Drop Under This Administration, Happy New Year!! and more

Synopsis: Another Six-Figure Reminder That You MUST Consider Medicare’s Interests When Ending All Litigation!! Analysis by Shawn R. Biery, J.D., MSCC and Matt Ignoffo, J.D., MSCC


Editor’s comment: We constantly have clients contact us regarding “guidance” they have received which creates more confusion on whether they “need to do an MSA” or explaining why they don’t believe Medicare applies to their case.  We again confirm YOU MUST ALWAYS CONSIDER MEDICARE’S INTERESTS. This doesn’t mean you always need an MSA, or frankly, that you need to do more than identify the MMI release in many cases. But you always should take a look and see if Medicare has any potential impact on any settlement—not just workers’ compensation.


In a recent (November 26, 2017) United States District Court for the Northern District of Illinois opinion on Paraskevas v. Price, the Court concluded that Medicare did not abuse its discretion in finding the state court settlement order was not on the merits and was therefore not binding on CMS when seeking reimbursement of conditional payments. In the claim, the Court found settlement compensated Plaintiff not only for the wrongful death action, but also the estate's survivor claims in connection with the medical malpractice claim and because of that compensation, Medicare had a right to reimbursement for conditional payments. Medicare had sought that reimbursement in a decision and the Court found that Medicare's decision was affirmed, and Plaintiff owed $105,000 plus interest in reimbursement of conditional payments.


Briefly, Toula Paraskevas ("Plaintiff") sued Thomas E. Price as the Secretary of the United States Department of Health and Human Services ("Defendant," "Medicare," or the "Secretary"). Plaintiff was the surviving spouse of her deceased husband George Paraskevas ("George"), who had been diagnosed with prostate cancer in April 2007 and passed away on January 2, 2012. From George's diagnosis until his death, Medicare conditionally paid medical bills totaling $253,546.73 on George's behalf.


In 2009, Plaintiff and her husband George filed a medical malpractice lawsuit in the Circuit Court of Cook County, Illinois against George's primary care physician, his urologist, and their respective practice groups. In fall of 2012, Plaintiff tentatively settled the case, both the estate's survival claims and the wrongful death claims with George's primary care physician and his practice group for $250,000 plus costs. Those defendants were dismissed from the case. However, they were again added to the case on September 11, 2013 after the tentative settlement broke down. On September 23, 2013, the state court granted the urologist and his practice group's motion to dismiss for failure to state a claim. The primary care physician and his practice group remained in the case. The state court also granted Plaintiff leave to file a second amended complaint; however, counsel failed to file the second amended complaint.


In December 2013, settlement was tentatively set with the PCP and his practice group paying $250,000 plus costs of $8,664.10, totaling $258,664.10 (an amount which had been previously agreed upon) and $175,000.00 of same was to be distributed to the next of kin, with $25,000 going towards attorneys' fees and $8,664.10 for expenses. Plaintiff's counsel prepared the required documents for filing the settlement in the state court and requesting distribution of the settlement proceeds to the next of kin.  


Plaintiff then filed the second amended complaint, eliminating the estate's survival claims pursuant to the ISA, leaving only the wrongful death claims pursuant to the IWDA. In conjunction with the second amended complaint, Plaintiff filed what she called a "Motion to Approve Settlement and Distribution, to Confirm that Settlement is Made Exclusively Pursuant to the Wrongful Death Act, and To Dismiss." The motion stated that the "settlement should be ascribed wholly to damages in the wrongful death action," and therefore not based on the value of the medical bills paid by Medicare, in what Medicare (and most informed observers!) saw as a clear attempt by Plaintiff to deny Medicare reimbursement of the $253,546.73 it had paid on George's behalf.


Plaintiff was at least smart enough to alert Medicare as to the settlement proceedings and they did engage in discussions about Medicare's potential entitlement to reimbursement from a settlement but did not reach an agreement prior to the approval of settlement on February 3, 2014. The state court approved Plaintiff's settlement for $250,000 plus $8,664.10 in costs without any hearing essentially signed the order verbatim as prepared by Plaintiff counsel.


On January 27, 2014, the MSPRC had issued a final demand letter, seeking reimbursement in the amount of $171,537.04 in the event that Plaintiff settled her state court case. On February 10, 2014, Plaintiff appealed the MSPRC's final demand letter. There was a considerable delay. A redetermination decision was not issued within the requisite sixty-day period, so Plaintiff filed a federal claim for declaratory relief. The District Court heard the case and dismissed the case for failure to exhaust administrative remedies. Plaintiff then proceeded through the administrative process and was unsuccessful at every stage (several appeals and requests for redetermination).


Of note, on January 6, 2016, the ALJ held a telephonic hearing with Plaintiff's counsel appearing on her behalf and in response to the ALJ directly inquiring as to the existence of a formal written agreement memorializing Plaintiff's state court settlement, Plaintiff's counsel represented that he believed there was a general release and that he would provide that release for the record. However, he could not do so. After the hearing concluded, Plaintiff submitted two affidavits obtained from her attorneys. The affidavits explicitly stated that Plaintiff's counsel and opposing counsel could not locate any written settlement agreement.


The final level prior to this Federal District Court decision was a MAC review of the ALJ's decision. The MAC determined that Plaintiff attempted to convert her lawsuit containing estate survival and medical malpractice claims into a wrongful death suit exclusively under the IWDA in order to shield herself from having to reimburse Medicare. The MAC also found that Plaintiff's counsel "did not document, in any way, the assertions that the matter was settled exclusively under the IWDA." Moreover, Plaintiff made no mention and provided no explanation for the fact that the settlement recovery was identical to the amount of the preliminary settlement that fell apart. The MAC rejected Plaintiff's position that the state court made a determination on the merits when it signed the order stating that the lawsuit and settlement were pursuant to only the IWDA. Notably, the MAC found that there was nothing in the record that reflected whether the Illinois court ever held a hearing on this matter. On August 16, 2016, the MAC ultimately affirmed Medicare's entitlement to reimbursement but reduced the total dollar amount to $105,000.00 plus interest.


This Federal District Court found Plaintiff's position lacking in complete truth and concluded Medicare not only had the statutory authority to seek reimbursement, Medicare also, as a federal body implementing federal law, did not waive its objections by not appearing in the state court proceedings. The MAC's decision was affirmed, and the Secretary's final decision stands.


There are always arguments for both positions, however the over-riding position should always be that Medicare’s interests are considered. This reimbursement could have been further limited if the Plaintiff would have made the effort toward Medicare earlier in the case in our opinion. There are also various strategies we likely would have employed to lessen the impact of the conditional payments—but it is always easier to critique after the fact than to litigation in the moment. Our continuing message to our readers and clients who are handling such claims is patent—ALWAYS CONSIDER MEDICARE’S INTERESTS.


We have two MSCC certified attorneys at Keefe, Campbell, Biery & Associates, including our name-partner Shawn R. Biery who authored the bulk of this article. As you can see from this ruling, it is crucially important to consider everything in front of you when resolving claims and to utilize an actual knowledgeable counselor at your side when determining how to manage the many facets of litigation. We have those folks available at Keefe, Campbell, Biery & Associates and are available to assist. Contact any of our attorneys and we will find a way!


We appreciate your thoughts and comments. Please post them on our award-winning blog. For specific Medicare issues, you can also always reach our certified Medicare consultants Shawn R. Biery at sbiery@keefe-law.com and Matt Ignoffo at mignoffo@keefe-law.com.



Synopsis: Gene Keefe Assures My Readers--IL WC Benefits Will Keep Dropping Under This Administration. The IL Appellate Court, WC Division Takes the Helm On Steering the Lower Courts To Follow IWCC Rulings for Better or Worse. Kudos to Our Justices for Adherence to the Law!


Editor’s comment: Our IL Appellate Court, WC Division critiqued a Circuit Court judge for “injudicious” conduct when he openly claimed the IL Workers’ Compensation Commission was pre-determined to reach a particular outcome, and found substantial evidence supported the Commission’s decision. In the last couple of years, the Appellate Court, WC Division seems to have heard the call to lower WC benefits/awards. They appear to be letting the IWCC make the controlling decision on causation and other fact-based issues and this Commission seems to be about as fair and moderate as I can recall in a legal career spanning almost four decades.


In Sysco Food Service of Chicago v. IWCC, No. 1-17-0435WC, issued 12/22/2017, Claimant was a food delivery driver. While working on Nov. 6, 2009, Donohue claimed he fell out of the back of his truck and landed on both knees.


Six days later, on Nov. 12, 2009, Donohue first sought medical treatment from Dr. Regan at the Illinois Bone and Joint Institute. Dr. Regan ordered an MRI of Claimant’s left knee, revealing a tear at the posterior horn of the medial meniscus. Dr. Regan recommended surgery, and Donohue underwent the procedure in January 2010. Donohue returned to work, without medical restrictions. On Feb. 22, 2010. Claimant returned to see Dr. Regan, complaining of significant pain in his left knee. Dr. Regan noted swelling in the knee and took Donohue off all work.


The employer sent Claimant to see Dr. Kevin Walsh for an IME in July 2010. Dr. Walsh noted Claimant had a degenerative condition of the knees but said the condition had not been caused or accelerated by Donohue’s work accident. Dr. Walsh also opined Claimant could return to work without any restrictions.


Dr. Regan released Donohue to return to work in August 2010 and recommended Donohue wear a knee brace. Claimant worked an 11.5-hour shift on his first day back and complained of pain to a supervisor at the end of the day. The next day, Sysco’s nurse called him and told him he could not return to work because of the condition of his left knee.


Sysco arranged a “fit for duty test” for Claimant in September 2010. The test report indicated Claimant was able to perform the duties associated with his job, but he might not be able to perform successfully over an entire shift.


In November 2010, Dr. Regan reported Claimant was fit to return to full duty as a truck driver. Dr. Walsh saw Claimant that same month. He opined Claimant did not require work restrictions as a result of the 2009 work accident but said it would be reasonable to restrict Donohue’s activities because of the degenerative knee condition. Sysco still did not allow Claimant to return to work as a delivery truck driver. It offered him an alternative position as a security guard instead.


In June 2011, Dr. Regan opined he believed the 2009 accident caused the meniscal tear in Donohue’s knee, and the accident “probably aggravated a pre-existing chondromalacia” as well. Dr. Regan further noted Claimant had degeneration in the left knee and said he could not issue an opinion as to whether the degeneration was caused by the normal aging process or was related to the 2009 accident.


Arbitrator Erbacci heard the claim and found Claimant entitled to benefits for the torn meniscus in his left knee but determined the continuing degeneration was not compensable.

The Illinois Workers’ Compensation Commission panel, led by Commissioner Lamborn upheld the Arbitrator’s decision, but Cook County Circuit Court Judge Robert Lopez Cepero reversed to add the degeneration as compensable. Judge Cepero noted the Commission did not reference Dr. Regan’s June 2011 report and suggested the Commission willfully ignored it because it was “determined to reach a particular outcome.” Judge Cepero summarily ruled Claimant was entitled to wage loss differential benefits under Section 8(d-1) and ordered the claim back to the IWCC for the purpose of calculating the amount due to Claimant in wage differential benefits.


On remand, the IWCC awarded Claimant wage differential benefits of $394.68 per week, commencing on Jan. 16, 2012.


The employer then appealed. At the second trip to the reviewing courts, Circuit Court Judge James McGing reversed the IWCC’s wage differential award, finding the Commission miscalculated Claimant’s award. After another remand, the IWCC recalculated Donohue’s wage differential benefits as $347.51 per week. Another appeal by the employer followed. After the third time the claim was in the Circuit Court, Judge McGing upheld the award.


The Illinois Appellate Court, WC Division then considered all three appeals for the first time. After reviewing the record, the Appellate panel found Judge Cepero erred in reversing the IWCC’s finding there was no causal connection between the degenerative condition of Donohue’s knee and the work accident.


The Appellate Court acknowledged both Drs. Regan and Walsh documented the presence of a degenerative condition, and the majority said it was up to the Commission, and not the reviewing courts, to assess the persuasive weight of each doctor’s opinion on causation. The Appellate ruling said it was clear the IWCC considered Dr. Regan’s June 2011 report/opinions but the Commission panel accorded no weight to his statement Claimant’s work accident “probably aggravated a pre-existing chondromalacia.”


The Appellate ruling said the fact the IWCC decision did not make specific note of the report/opinion in its original decision was not, on its own, sufficient to support a conclusion the Commission ignored the report. The Appellate ruling also confirmed the content of the report also did not justify a finding the IWCC’s conclusion on compensability was against the “manifest weight of the evidence,” in light of Dr. Walsh’s contrary opinion and Claimant’s testimony his knee was “as good as it was before the operation.”


In seeing the Circuit Court determine the IWCC’s causation ruling relating to the degenerative condition was against the manifest weight of the evidence, the Appellate Court said Judge Cepero “impermissibly reweighed the evidence and usurped the Commission’s fact-finding function.” The ruling further confirmed there was “simply no justification” for Judge Cepero to accuse the Commission of being determined to reach a particular outcome. “The accusation is not only without support in the record, it is injudicious,” the court said. The Appellate Court ruling went on to find Judge Cepero also erred in ordering the Commission to summarily calculate and award wage differential benefits to Donohue.


The Appellate Court confirmed Claimant was not medically restricted from pursuing his usual and customary line of employment as a truck driver, and it noted he said he was willing to return to the job. The problem was Sysco would not return him to work based on its belief he was physically unfit to do his job. In order to qualify for a wage differential award, the Appellate Court outlined, “a worker must be partially incapacitated from pursuing his usual and customary line of employment ‘as a result’ of an injury.”


Sysco’s belief Claimant couldn't work as a truck driver for them doesn't mean he was incapacitated from pursuing his usual and customary line of employment, the appellate ruling said. “Clearly, the reasons given by an employer for not restoring an injured employee to his pre-accident position may be relevant to the question of whether the employee is incapacitated from pursuing his usual and customary line of employment in a case where the employee’s physical ability to return to his usual line of work is a disputed issue,” the court outlined, but they found this was not such a situation. As Claimant said he was ready, willing and able to return to work as a truck driver, and his treating physician authorized him to return to work without restrictions, the court said he was not entitled to wage differential benefits.


To read the decision, Sysco of Chicago v. IWCC We appreciate your thoughts and comments. Please post them on our award-winning blog.