8-13-12; As the IWCC turns…will the dust settle before the clamor for more “reform”? Shawn R. Biery, J.D., MSSC notes AMA guides are finally appearing in IL Arbitration decisions with some...

In our view, the effect of the recent changes to the Illinois WC Act will still take years to fully develop as potential defense savings with the exception of the reduction in the medical fee schedule which appears to have lowered medical costs already. We now have the first decisions which consider the changes implemented with regard to setting permanency or PPD in Section 8.1b of the Act.

To recap, Section 8.1b (820 ILCS 305/8.1b) covers the determination permanent partial disability for accidental injuries which occur on or after September 1, 2011.

Permanent partial disability shall be established using the following criteria:

(a)  A physician licensed to practice medicine in all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing.

                               i.       The report shall include an evaluation of medically defined and professionally appropriate measurements of impairment that include, but are not limited to: loss of range of motion; loss of strength; measured atrophy of tissue mass consistent with the injury; and any other measurements that establish the nature and extent of the impairment.

                               ii.       The most current edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment" shall be used by the physician in determining the level of impairment.

(b)  In determining the level of permanent partial disability, the Commission shall base its determination on the following factors:

(i) the reported level of impairment pursuant to subsection (a);

(ii) the occupation of the injured employee;

(iii) the age of the employee at the time of the injury;

(iv) the employee's future earning capacity; and

(v) evidence of disability corroborated by the treating medical records.

The IL WC Act specifically states that “No single enumerated factor shall be the sole determinant of disability. In determining the level of disability, the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written order.”

Arbitrator Lynette Thompson-Smith has now issued what appear to be the first two decisions which directly address Section 8.1b permanent partial disability.

(1)  In Frederick Williams v Flexible Staffing, 11WC46390, Arbitrator Thompson-Smith was presented with an October 2011 injury to a 45-year old welder who suffered an undisputed distal biceps tendon rupture with surgery and eventual full duty release despite ongoing complaints. Dr. Mark Levin provided an impairment rating of 6% to the upper extremity or 4% of the person. The Arbitrator, in a detailed decision, confirmed that rating—factor (i)—and noted factor (ii) would increase PPD since his occupation was medium to heavy so the impairment would have more affect than someone who worked lighter work; noted factor (iii) would increase PPD as a younger individual would have to live with the PPD longer; noted factor (iv) future earning capacity would be undiminished due to the full duty return however the lack of job to return to would negatively affect future earning capacity so it appears this also increased PPD. Finally the Arbitrator confirmed factor (v) included evidence in treating records of loss of range of motion, as well as pain, numbness and tingling so there was evidence of disability in treating records. The Arbitrator awarded 30% loss of use of the right arm.

(2)  In Zachary Johnson v Central Transport, 11WC41328,  Arbitrator Thompson-Smith was presented with an October 2011 accident (causal connection was disputed at hearing with the Arbitrator confirming causal connection existed based partly on the opinion of reviewing MD Dr. Vender) to a 28-year old truck driver who suffered a right small finger metacarpal neck fracture with no surgery and eventual full duty release and return to work. Dr. Michael Vender provided an impairment rating of 7% finger/1% hand or 1% person. The Arbitrator, in another detailed decision, confirmed that rating—factor (i)—and noted factor (ii) appeared to have no effect since he returned to regular job; noted factor (iii) may not be as extensive as he was a younger individual and it would not impact him as much as it would an older person; noted factor (iv) future earning capacity would be undiminished due to the full duty return and likely long career ahead. Finally the Arbitrator confirmed factor (v) included evidence in treating records of being susceptible to cold and some pain & numbness in records provided evidence of disability in treating records however full duty return in 8 weeks minimized PPD. The Arbitrator awarded 10% loss of use of the right hand.

Based upon some research, this writer was able to locate prior decisions both lower and higher than the above awards in claims with similarity although with no claims which had perfectly matching fact patterns—in part because prior claims did not have the detailed analysis included in the above claims and now likely necessary in all claims of accident after September 1, 2011. It should be noted we have settled two recent biceps tendon ruptures with surgery for well under 30% of the arm, however there are multiple awards over 35% of the arm for similar injuries. On balance, both awards look to fall lower than a number of similar awards in the last 5 years so the guidelines (or possibly the simple need to detail factors in determining PPD) appear to have some lowering effect with the arm award being approximately 15% to 25% lower than the 35/40% awards located. This writer would still argue that an effective negotiation by a stellar attorney with a legitimate impairment rating is likely to provide more benefit to an Illinois employer than presenting for hearing and leaving the decision solely in the hands of even the most competent Arbitrator.

On a side note, Arbitrator Thompson-Smith has unwittingly quieted some of the chatter at the IWCC on several fronts and we should never again hear a Petitioner attorney argue “Dr. Vender would not find causal connection if it was water and he was falling out of a boat” since Dr. Vender is specifically cited by name in the causal connection section of the Johnson decision.

Our overall impression is that the changes to the Act with regard to PPD are providing Illinois employers some additional ammunition to control costs and initially appear to have a bit of a leveling effect on PPD values—If AMA ratings are obtained and used appropriately. It is likely to continue to take time for the full effect to be determined. This article was researched and written by Shawn R. Biery. For a copy of the decisions, please email Shawn at sbiery@keefe-law.com. We welcome and appreciate your thoughts and comments. Please feel free to email Shawn or post them on our award-winning blog.