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Recent Appellate Court Decisions
In Con-way Freight, Inc. v. IWCC, 1-15-2576 WC (1st Dist. 2016), and Flexible Staffing Services v. IWCC, 1-15-1300 WC (1st Dist. 2016), the Workers’ Compensation Commission Division of the Illinois Appellate Court defined the proper weight to be given an AMA impairment rating when awarding permanency. The Flexible Staffing decision is notable, in particular, because the Appellate Court, for the first time, discusses the weight to be given to age as one of the factors to be considered.
In Flexible Staffing Services v. IWCC, the Workers’ Compensation Commission Division of the Illinois Appellate Court affirmed a circuit court decision which had confirmed the IWCC’s award of benefits. The petitioner suffered an accepted work accident when he was welding a section of rail. When the rail slipped, the petitioner attempted to grab it. The rail weighed over 400 pounds. The petitioner felt pain in his right arm and was diagnosed with a distal biceps tendon rupture. The petitioner eventually underwent a surgical repair of his right elbow. After physical therapy he was discharged from treatment and released to full unrestricted employment. The treating physician noted the petitioner had decreased range of motion. On the last office visit, the petitioner complained of numbness and diminished strength. When the petitioner returned to full duty, the Respondent discharged him from employment.
At the request of the employer, the petitioner was examined by Dr. Mark Levin. Dr. Levin conducted an AMA impairment rating and determined the petitioner had an impairment of 6% of the right upper extremity or 4% man as a whole.
The arbitrator applied the five factors set forth in Section 8.1(b) of the Act and determined the petitioner suffered a 30% loss of use of the right arm. The IWCC reduced this award to 25% of the right arm. The circuit court remanded the case back to the IWCC with a direction to explain the reasoning for its decision.
The IWCC noted that Dr. Levin had placed the petitioner’s AMA impairment at 6% of the right upper extremity. The Commission explained that pursuant to Section 8.1(b) no single enumerated factor shall be the sole determinant of disability. The IWCC then considered the other four factors. The petitioner was a welder which is a physically demanding job. A person with heavier job duties would suffer a greater degree of disability. The petitioner was 45 years old. The petitioner would live longer with his disability which would warrant an increase in the level of disability. The petitioner has an impaired future earning capacity. After the petitioner was released to full duty, the Respondent refused to employ him. The petitioner has difficulty when he attempts to use welding equipment. The petitioner testified he has been unsuccessfully looking for a job as a welder. The IWCC reviewed the petitioner’s medical records and determined that they were consistent with the evidence of disability. The medical records contained the petitioner’s continued complaints of pain and documented his lack of sensation and lack of range of motion. Based on the five factors set forth in the Act, the IWCC determined the petitioner had permanent partial disability of 25% loss of use of the right arm. This decision was confirmed by the circuit court.
The Respondent argued before the appellate court that the IWCC misapplied Section 8.1(b) of the Act and that the award was against the manifest weight of the evidence. The appellate court disagreed and affirmed the circuit court’s confirmation of the IWCC’s award.
Pursuant to Section 8.1(b) of the Act, the IWCC considers five factors when awarding permanency. The five factors are:
1. The level of impairment;
2. The occupation of the injured employee;
3. The age of the employee at the time of the injury;
4. The employee’s future any capacity; and
5. The evidence of disability supported by the medical records.
The Act provides that no single enumerated factor shall be the sole determinant of disability. In this case, the petitioner testified that his job was physically demanding. There Court found evidence in the record to support the Commission’s decision that the job of welder is physically demanding.
The appellate court also determined that it is obvious that a younger person will live longer than an older person. Therefore, the Court held that petitioner’s young age supported an increased level of disability. This is notable because, prior to this ruling, there had been some confusion on whether the relative youth of a claimant might actually argue in favor of a lower permanency award.
Even though the petitioner was released to full duty, the petitioner testified that he did not feel he could still perform his job. The Respondent refused to re-employ the petitioner. The petitioner testified he had difficulty using the welding equipment that he owns. Therefore, the Court found evidence in the record to support the petitioner’s diminished future earning capacity.
The treating medical records supported the petitioner’s complaints of pain along with the limited range of motion in his right arm. The Commission could consider that information in additional to the impairment rating in determining disability. Overall, the Court held that the Commission was not bound by the impairment rating and had correctly weighed the additional factors.
In Con-way Freight, Inc. v. IWCC, the Appellate Court again affirmed a permanency award that was greater than the AMA impairment rating. The petitioner suffered a compensable accident resulting injuries to both feet. The petitioner underwent surgery to his right foot. Eventually he was discharged from treatment and released to full employment. At the request of the employer, the petitioner underwent an AMA impairment rating exam with Dr. Mark Levin. Dr. Levin determined the petitioner had 0% impairment for the left foot and 4% impairment to the right foot.
The arbitrator awarded 30% loss of the right foot and 8% loss of the left foot. The arbitrator’s decision contained specific findings for each of the five factors in Section 8.1(b) of the Act. The arbitrator’s decision was affirmed by the IWCC review panel and the circuit court. The employer argued that the AMA impairment rating should be the primary factor to consider when establishing permanency.
The appellate court affirmed the circuit court which had confirmed the IWCC’s award of 30% of the right foot and 8% of the left foot. The appellate court discussed Continental Tire of the Americas, LLC v. IWCC, 43 N.E.3d 556 (5th Dist. 2015) and Cornbelt Energy Corp. v. IWCC, 56 N.E.3d 1101 (3rd Dist. 2016). In both of these cases, the appellate court held that an AMA impairment rating is not required to determine permanency. In Continental Tire, the appellate court held that Section 8.1(b) of the Act does not specify the weight that the Commission must give to an AMA impairment rating. The plain language of the statute does not require the IWCC to treat an impairment rating as the primary factor in determining permanency. The IWCC is obligated to weigh all of the five factors listed in Section 8.1(b). No single factor is determinative.
Editor’s Note: Since September 1, 2011 the IWCC has awarded permanency at a higher percentage than that specified in an AMA impairment rating in multiple cases. Con-way Freight and Flexible Staffing Services confirm that an AMA impairment rating is not any more important than the other five factors when establishing a permanency award. The permanency award of the IWCC is not limited to the percentage specified in an AMA impairment rating. In Flexible Staffing Services, neither side presented evidence regarding the petitioner’s earning capacity or age. The IWCC made a factual finding from the record that the relative youth of the claimant served to increase the permanency of his injury. The Appellate Court endorsed this analysis.