Appellate Court Decisions on Permanency Factors – Evaluating Age as a Factor

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.