The Illinois Commission - Super Sized!

Saturday, September 9, 2006 | 0

By Michael E. Rusin

Around the Commission

The Illinois Workers' Compensation Commission was super sized. Illinois Gov. Rod Blagojevich appointed three new commissioners, increasing the number of commissioners from seven to 10, including the chairman. The hiring of three commissioners was authorized by the new workers' compensation statute which was enacted July 20, 2005. It took the governor eleven months to appoint the three new commissioners. The appointments were effective June 26, 2006, and all require state Senate confirmation. The new commissioners are as follows:

David L. Gore Jr. was appointed as a labor representative. Gore is an attorney who attended the University of Illinois. He received a B.S. degree in marketing, an M.B.A., and a law degree in 1992. He worked as a petitioner's attorney at the family firm of Gore & Gore. Gore's term will expire in January 2007.

Yolaine Dauphin was appointed as a public representative. Dauphin received a Bachelor of Arts degree in political science and French from Northwestern University. She earned her law degree from the University of Chicago in 1984. She most recently worked as a clerk to Supreme Court Justice Charles Freeman. Her term will expire in 2009.

Nancy Lindsay was appointed to be a business representative. She is an attorney from central Illinois. Her educational resume includes a B.A. degree in English from Illinois College and an M.A. in legal studies from the University of Illinois at Springfield. She earned her law degree from St. Louis University in 1983. Her last employment was with a law firm in Jacksonville, Ill., named Rammelkamp Bradney. Her term will expire in 2009.

Blagojevich reappointed Commissioners Paul Rink, a public representative, and Barbara Sherman, a labor representative, to their positions. Their appointments expired in January. They were continuing to serve until they were reappointed or replaced. Obviously, both wanted to be reappointed as neither sought alternate employment even though their terms expired. Their terms will expire in January 2009.

The chairman decided to realign the panels so that new and experienced commissioners are working together. Effective Aug. 1, the panels will be realigned as follows:

Panel A: Susan Pigott, James DeMunno and Nancy Lindsay
Panel B: Barbara Sherman, Yolaine Dauphin and Ilonka Ulrich
Panel C: David Gore, Paul Rink and Mario Basurto

The realignment of the panels is not surprising. The realignment will diminish the impact of the newest commissioners who will almost certainly be told by the more experienced commissioners not to fight the system and simply agree with what they are told. It is somewhat surprising that the new panels will consist of one panel that is two women and one man, one panel that is all women, and one panel that is all men.

New State Average Weekly Wage Announced -- New Benefit Levels Set

The new state average weekly wage was announced for the time period July 15, 2006 through Jan. 14, 2007. The new state average weekly wage is $840.65. This creates a new temporary total disability maximum of $1,120.87. This makes the new death benefit and permanent total disability benefit minimum $420.33.

The maximum PPD rate also increased effective July 1, 2006, although that figure will not be released until December 2006. However, I estimate that the new PPD maximum will likely be in the range of $615 per week. The new maximum will create potential exposure in a simple back strain case to be the range of $6,000 to $9,000.

Medical Fee Schedule Rules Approved

The new Act created a medical fee schedule, which went into effect Feb. 1. The commission crafted emergency rules which went into effect the same day, Feb. 1. The rules had to be approved by the Senate and accepted by the Commission. These steps have now been taken and the medical fee schedule is now properly Illinois law. Many are now analyzing the beneficial effects of the medical fee statute. I expect the net impact of the medical fee schedule to be negligible in decreasing workers' compensation costs.

Workers' Compensation Fraud  Fraud WORKERS' COMPENSATION FRAUD - FRAUD INVESTIGATION UNIT ESTABLISHED

For the first time in the history of Illinois workers' compensation, workers' compensation fraud is now a criminal act. The new statute, effective July 20, 2005, establishes criminal penalties for all types of workers' compensation fraud. This includes employee fraud, employer fraud, and medical provider fraud. Moreover, any individuals who assist others in perpetuating workers' compensation fraud are guilty themselves.

Anyone who engages in workers' compensation fraud is guilty of a Class IV felony. A Class IV felony is subject to jail time of one to three years. Frankly, that's not a very severe penalty for the types of fraud we frequently see. A Class I felony is the most severe. A Class IV felony is just a step removed from a misdemeanor.

The statute authorized creation of a Fraud Unit to investigate workers' compensation fraud. Although the statute authorized the creation of this unit on July 20, 2005, the unit was not created until recently. The Fraud Unit was established on April 26, 2006 with two investigators, Ronald Palmer, a former Chicago police officer, and Don Kenah, a former insurance claims person. Their office is located on the 9th floor of the Thompson Center directly above the Illinois Workers' Compensation Commission.

Before the appellate court of Illinois, workers' compensation division

Slip and Fall on Clean Floor Held Not Compensable -- Workers' Compensation Commission Reversed

First Cash Financial Services v. Industrial Commission and Betsy Rios, No. 1-05-3403WC, filed July 26.

The petitioner was hired by employer in February 2002 as a cash advance loan teller. On Aug. 8, 2003, petitioner was getting ready to leave for work at approximately 4 p.m. She entered the employee bathroom to retrieve a container that she used to bring her lunch in. The bathroom was covered in ceramic tile. The bathroom was not accessible to the general public. The petitioner entered the bathroom and slipped and fell, injuring her left arm. Rios testified that she didn't know what caused her to slip and didn't observe anything on the floor. She didn't faint or black out. She was wearing open-toed sandals with heels. No one witnessed her fall. Rios suffered a significant injury to her left arm which included a dislocation of her left elbow.

Four of petitioner's co-workers testified at the hearing before the arbitrator. Each of the co-workers testified that they didn't observe any debris or water on the bathroom floor on Aug. 8, 2003. The co-workers testified that the employees took turns cleaning the bathroom, but no one could recall when the bathroom was last cleaned prior to Aug. 8, 2003.

The respondent hired an engineering consultant to investigate and test the floor to see if was safe and not slippery. He appeared and testified as to the condition of the bathroom floor tiles. The consultant testified that the slip resistance of the tiles was within national safety standards.

The employer disputed liability for petitioner's fall. The case was tried before an arbitrator and the arbitrator found the case compensable. The arbitrator disregarded the consultant's testimony. The arbitrator ruled that petitioner's fall was compensable because no evidence was presented showing "that the bathroom tiles were dry or free of hair, dust, debris, powder, makeup, tissue, oil, water droplets, or any of the many other possible substances."

The employer appealed to the commission and the commission affirmed. The employer appealed to the circuit court and the circuit court also affirmed.

The employer appealed to the appellate court and argued that the only reasonable inference that could be drawn from the evidence was that petitioner fell as a result of her own footwear or as a result of her hurrying to retrieve a personal item.

The appellate court agreed with the employer and reversed the case in its entirety. The court noted that petitioner has the burden of proving by a preponderance of the evidence that her injury arose out of the employment. The court analyzed slip and fall cases and stated that "the risks to which an employee may be exposed are categorized into three groups:

(1)risks distinctly associated with the employment;

(2)(2) risks personal to the employee, such as idiopathic falls, and

(3)(3) neutral risks that have no particular employment or personal characteristics."

The court stated that an injury resulting from an idiopathic fall arises out of the employment only where the employment conditions significantly contributed to the injury by increasing the risk of falling or the effects of the fall. The court stated that an injury resulting from a neutral risk, that is, one to which the general public is equally exposed, does not arise out of the employment. The court noted that the act of walking across a floor at an employer's place of business does not establish a risk greater than that faced by the general public. The court held that employment related risks associated with injuries sustained as a consequence of a fall are those to which the general public is not exposed such as the risk of tripping on a defect at the employer's premises, falling on uneven or slippery ground at the work site, or performing some work-related task which contributes to the risk of falling.

In this case, the court found that petitioner did not present any direct evidence explaining the cause of her fall. Rios testified that she didn't know why she fell, and no one witnessed her fall. The court reversed the commission which affirmed the arbitrator. The court noted that the arbitrator stated that no evidence was presented "that the bathroom tiles were dry or free of hair, dust, debris, makeup, tissue, oil, water droplets, or of any of the many other possible substances." The court ruled that the arbitrator improperly shifted the burden of proof to the employer to disprove the existence of a defect. Instead, the claimant had the burden of proving that the injury arose out of the employment. The court found that the manifest weight of the evidence justified a reversal. Petitioner didn't present any evidence establishing the cause of her fall and therefore failed to prove that her injury arose out of the employment.

One justice dissented. He found that the evidence was sufficient to support the compensability of petitioner's injury because there was not sufficient evidence to show when the bathroom had been cleaned.

Comment: Our firm handled this case. This case was tried, appealed and argued by Randy Stark in our office. This is an excellent decision from the court. The decision is a rare one. We lost this case at the arbitration, commission and circuit court levels. It is unusual for the appellate court to reverse the arbitrator, commission, and the circuit court.

The decision is an excellent one in summarizing the rules of law relating to the arising out of defense. The case decision reinvigorates the Caterpillar doctrine which states that a claimant must prove that a fall originated in a risk associated with the employment. Simply falling at work is not a compensable event if there is no evidence presented which shows that the fall was the result of a work-related risk rather than a risk commonly faced by the general public. The petitioner did not present any evidence as to a defect. We presented extensive evidence to show that there was in fact no defect. The arbitrator did improperly shift the burden of proof onto us. This case decision will give us a great deal of help in fighting new cases where unexplained falls are involved.

This was excellent work by Stark and shows not only fine legal skill but also perseverance in taking this case all the way up to the appellate court. The injury was a serious one and the exposure was significant. We appreciated our client's confidence in letting us pursue the case and obtain the correct result.

Commission's Decision Denying Claim for Fibromyalgia Upheld -- No Permanent Partial Disability Awarded (Rule 23 Order).

Vacha v. Industrial Commission and Jewel Food Stores, 02-05-1152WC, filed July 25, 2006.

Christine Vacha was employed as a part-time cashier for Jewel Food Stores. She tripped and fell Oct. 27, 1992. She treated for a neck and back sprain, a rib contusion and a hyperextended index finger. She treated with Dr. Lawrence Lieber, an orthopedic surgeon, for approximately two months, but then stopped. She started treating with another orthopedic surgeon, Dr. Bartucci, and saw him 17 times over the next five and a half years. She also received extensive treatment at Oak Forest Hospital. She was eventually diagnosed with fibromyalgia but had no significant objective findings. She claimed TTD benefits from the date of her accident for more than 10 years when the case was eventually tried in 2003.

The arbitrator denied the claim that petitioner's fibromyalgia was work-related. He awarded petitioner approximately nine months of TTD and medical bills through May 31, 1993. All other claimed benefits were denied. A claim for penalties and attorney's fees of over $140,000.00 was also denied.

No award was made for permanent partial disability. The employer presented some surveillance evidence that petitioner didn't have any significant problems. Despite her complaints of pain, surveillance showed her happy and smiling. The employer presented medical evidence by IME doctors who supported the causal connection defense and the denial of TTD.

Vacha appealed to the commission, circuit court and appellate court. However, everyone affirmed the decision of the arbitrator in denying PPD and awarding only eight months of TTD.

Comment: This is an excellent decision in a marathon-type case. This matter was handled by Ken Marshall in our office. Petitioner was trying for a permanent and total disability award in this case and wound up with essentially nothing. She wasted her whole life trying to build a case where none really existed. This is outstanding work from Marshall. He has been fighting this case for more than 13 years. Hopefully, it is finally over.

Denial of a Section 19(h) Petition Does Not Toll the 30-Month Limitations Period

Behe v. Industrial Commission and Sullivan Delivery Service, No. 2-05- 0813WC, filed May 5, 2006.

Kenneth Behe filed a claim with the commission for a work injury. On April 30, 1997, an arbitrator ruled in his favor and awarded him 30% loss of use of the man as a whole. Behe appealed to the commission, and the commission modified the decision on Dec. 30, 1997 and awarded 50% loss of use of the man as a whole.

On April 21, 1999, petitioner filed his first Section 19(h) petition alleging an increase in his disability. After a hearing and arguments, on Dec. 6, 2001, the commission entered an order denying the Section 19(h) petition.

On July 22, 2002, Behe filed a second Section 19(h) petition. The second Section 19(h) petition was filed within eight months of the last Section 19(h) decision - but it was filed 55 months after the first 19(h) decision. The employer filed a motion to dismiss alleging that the commission didn't have jurisdiction because the second Section 19(h) petition was filed outside the 30-month time period prescribed by the statute. The commission granted the motion to dismiss, finding that the denial of the first Section 19(h) petition did not extend the 30-month limitations period set forth in Section 19(h) of the Act. Behe appealed and the circuit court affirmed the dismissal. Behe appealed to the appellate court, and the appellate court also affirmed the dismissal.

Behe relied on the case of Hardin Sign Company v. Industrial Commission, 154 Ill.App.3d 386, 506 N.E.2d 1066 (1987). In that case, the court had allowed multiple Section 19(h) petitions. However, in the Hardin case, petitioner had received an award from the commission and had filed a first Section 19(h) petition. After the filing of the first Section 19(h) petition, the claimant got an award for additional benefits. Claimant subsequently filed a second Section 19(h) petition more than 30 months after his initial award and was awarded even more benefits.

The court distinguished the Hardin case and claimed that petitioner didn't have a right to file a second Section 19(h) petition here because his first Section 19(h) petition had been denied. Therefore, in the circumstance where one Section 19(h) petition has been denied, a second Section 19(h) petition cannot be filed more than 30 months after the date of the initial commission award. Comment: Based on the Hardin case, I would have expected the appellate court to rule differently in this case. The court draws an extremely fine line of distinction between the two cases. Although this Section 19(h) petition was filed by a claimant, I believe this decision harms employers more than employees. It will limit employers' rights to file a Section 19(h) petition to overturn an unfavorable commission decision where there is evidence that a claimant is not as disabled as he alleges.

Please note that under the new law, the employer will have 60 months after entry of a Section 8(d)(1) award to file a petition to change a wage differential award. However, the 30- month rule still applies to all other types of awards.

Knee Injury While Traveling Between Employer's Parking Garage and Place of Employment Arose Out of Employment

University of Illinois v. Industrial Commission and Burns, No. 1-05-2550WC, filed May 3, 2006.

Nadine Burns was employed by the University of Illinois Hospital as a nurse-midwife. She had a history of right knee problems. She had an arthroscopic surgery on her right knee in August of 1999 and again in October 2000.

On Dec. 18, 2000, Burns parked in a parking lot owned by the university and started walking to work. She testified that as she was walking through a doorway between the parking structure and a walkway, she tripped on a metal threshold and twisted her right knee.

She gave inconsistent histories in the emergency room. She reported to the triage nurse that she slipped on ice. However, she reported to another individual that she had tripped coming into the building. She gave an incident report to a police officer on the date of the accident. She reported that she tripped on a metal floor plate by the door that separated D-1 and the 948 walkway.

The university police officer performed an investigation. He inspected the accident scene and found no abnormality in the area of the doorway. The case was tried before an arbitrator who found that Burns failed to prove that her accident arose out of the employment. The arbitrator found that Burns didn't prove that there was a defect which caused her injury.

Burns appealed to the commission and the commission reversed. The commission believed petitioner's testimony and found that she was injured as a result of a defect in the walkway area.

The employer appealed to the circuit court who affirmed and to the appellate court who also affirmed. The employer argued that the Burns' injury did not arise out of the employment. However, the court found that the manifest weight of the evidence did not support a reversal. Burns testified that she tripped on a metal strip 12" wide and 3" high. The court said it was not error for the commission to rely on that testimony even though petitioner gave inconsistent histories and even though a university police officer examined the area and found no abnormality in the area where the petitioner said she tripped. The court refused to substitute its judgment for that of the commission.

Comment: This case is a frustrating one for the employer. Here Burns gives inconsistent histories. The employer arranges for a prompt investigation and has an officer actually do an inspection at the area where petitioner claims she fell. The officer testifies that there was no defect.

Unfortunately, the court was in the position of relying on petitioner's testimony or the officer's testimony. The employer could have made the case more compelling by actually having photographs of the accident site. With accurate photographs of the accident site, petitioner is in a much more difficult position to try to claim a defect.

Great Decisions Around the Office

Greg Rode obtained an excellent decision for AIG Insurance. In the case of McClain v. Universal Technical Institute, 03 WC 30802, 06IWCC464, petitioner filed an application alleging an accident date of Jan. 24, 2003. On that date, petitioner was employed as an automobile instructor. He had a long history of back problems including prior back surgeries. On Jan. 24, 2003, he was struck by a buggy on his shins and knocked backward. The accident was undisputed. Petitioner reported the incident and showed his scraped shins to his supervisor. However, the petitioner didn't report any back injury. Three days later, the employer sent him to a company clinic. The company clinic noted the admitted and accepted leg injury but didn't indicate any back injury.

On May 8, 2003, several months later, petitioner was washing his hands in a sink at work in a bent over position and developed severe back pain. Thereafter he sought significant additional medical care for his back claiming injuries Jan. 24, 2003 and May 8, 2003. Eventually he had surgery for spinal stenosis.

We presented testimony from petitioner's supervisor that petitioner didn't make any significant back complaints following the accident. The supervisor also contradicted petitioner's allegations of excessive overtime.

The arbitrator awarded 33 weeks of TTD and 20% loss of use of the man as a whole. The commission reversed and found that petitioner failed to prove causal connection. The arbitrator relied on the testimony of the treating physician who stated petitioner's condition was causally related. However, the commission viewed the evidence differently and relied on our IME opinion from Dr. Marshall Matz along with the records of other doctors, who did not identify a causal connection between petitioner's accident and his subsequent back surgery. The commission found that petitioner failed to establish causal connection and the large award was reversed.

Dan Egan obtained an excellent result for J. B. Hunt and their carrier, AIG Insurance in the cases of Timothy Ilg v. J. B. Hunt, 06 IWCC 443 and 444. Petitioner claimed a neck injury Oct. 28, 1998, which was admitted and repetitive trauma April 29, 1999, which resulted in a cervical spine fusion. We disputed the causal relationship between the alleged accident and the cervical fusion. The arbitrator denied liability for the cervical fusion and awarded 3% man as a whole. Petitioner appealed, but the commission affirmed and awarded only 3% man as a whole and not the medical bills, TTD or PPD associated with the cervical fusion.

Joe Marciniak obtained a similar favorable decision for West Bend Mutual Insurance in the cases of Thomas Cahill v. F. H. Ayer Mfg., 00 WC 66311 and 05 WC 15341. In this case, petitioner claimed repetitive trauma for an accident of May 31, 2000. That case was denied and the commission confirmed the denial. In the second case, with an admitted aggravation of a neck condition, petitioner claimed permanent and total disability. We contended petitioner was entitled to only a percentage award for PPD. The arbitrator agreed with our contention. Instead of awarding permanent and total disability, she awarded only 25% loss of use of the man as a whole and no TTD.

Mark Cosimini obtained a favorable decision for AIG Insurance in the case of Annie Burch v. GTE, 06 IWCC 369. In this case, petitioner claimed repetitive trauma as a result of working as a housekeeper for Verizon/GTE. She had a long history of physical complaints and diagnosed with fibromyalgia. She eventually had surgery on both of her knees for degenerative changes. The arbitrator denied the case and the majority of the commission affirmed. However, commissioner Pigott dissented and stated she would have ruled the case compensable. This case is yet another example of a claimant alleging repetitive trauma simply as a result of performing routine work activities.

Randy Stark obtained an excellent decision for CCMSI from Arbitrator Pulia in the case of Randel Sanders v. Alberici Constructors, 04 WC 2155. This claimant alleged an accident of Dec. 10, 2003 that we disputed. We felt that petitioner's condition was a pre-existing one. We investigated the petitioner's past medical history and identified extensive medical treatment prior to the date of the alleged accident. We also showed that petitioner was taking high levels of Oxycontin at the time of the accident. The employer investigated the case promptly. We showed that petitioner suffered, if anything, from a pre-existing condition rather than a work injury. The case was a dangerous one since petitioner had a prior diagnosis of RSD. We proved that petitioner wasn't credible, and compensation was denied.

Joe Marciniak obtained a denial from the commission on behalf of Safeco Insurance in the case of Charles Borawski v. Aerotek, 06 IWCC 400. In this case, the commission affirmed the denial issued by Arbitrator Kane. The denial was premised on an excellent recorded statement taken by the adjuster shortly after the accident. Petitioner changed his testimony at trial. However, we were able to cross-examine petitioner based on the recorded statement and we convinced the arbitrator to deny the case. Prompt and thorough investigation again definitely helped our ability to defend the case.

Brent Halbleib obtained a good decision from Arbitrator Andros on a Section 19(b) petition on behalf of State Farm Insurance. In the case of Barbara Feller v. Hennepin Food Mart, 04 WC 50678, petitioner was claiming 15 weeks of disputed TTD plus more than $10,000 in medical bills. We admitted a work accident of July 29, 2002, but claimed that petitioner's subsequent TTD and medical were the result of an intervening car accident. Arbitrator Andros relied on our IME doctor and denied the 19(b) petition.

Dan Egan also obtained an excellent decision from Arbitrator Andros on behalf of Sedgwick CMS in the case of Steven Shelton v. Initial Security, 05 WC 44771. In this case petitioner claimed an accident of Jan. 22, 2004. The claim had been initially accepted and we had paid almost $4,000 in TTD. However, we disputed whether petitioner sustained a compensable injury. We investigated the case and found significant prior complaints and treatment. We contended that petitioner didn't sustain an accident but only had a manifestation of symptoms while working. The arbitrator accepted our contention and denied benefits entirely.

Stuart Pellish received an impressive decision from Arbitrator Williams on behalf of Dominick's Finer Foods. In the case of Richard Affetto v. Dominick's, 04 WC 3847, 04 WC 3848 and 04 WC 55299, petitioner claimed multiple accident dates. Petitioner claimed that his cervical fusion was caused by a work injury and he was permanently and totally disabled. The case was tried pursuant to Section 19(b). The petitioner was demanding over $70,000 in TTD benefits and $140,000 in medical bills. Prior to trial, a settlement demand had been issued by petitioner's attorney for over $600,000. However, we convinced the arbitrator that petitioner's cervical fusion was not causally related to a work injury. The 19(b) petition was denied.

Finally, Dan Arkin obtained a great award for State Farm Insurance in the case of Anne McGatha v. Whitey's Ice Cream, 03 WC 21925. This case was tried against an extremely difficult petitioner's attorney. We admitted an accident April 16, 2003 but we contended that the injury was minor. Nevertheless, petitioner's attorney demanded an award of TTD, PPD and medical bills of over $58,000. We contended that most of petitioner's medical bills should be denied. We denied TTD and felt that the PPD was minimal. The arbitrator essentially agreed with all of our contentions. He awarded only 4% loss of use of the arm and $3,600 in medical bills. The total award was less than $4,500, a mere fraction of the almost $60,000 petitioner's attorney wanted.

These favorable decisions are primarily attributable to excellent investigation initially after an accident and subsequently with a careful investigation and analysis of claimants' pre-existing conditions and prior accidents.

Conclusion

The review process consisting of the appeal from the arbitration level to the commission level has been very slow for the past year. Part of the new statute was to increase the size of the commission from seven commissioners to ten commissioners. The purpose of the increase by three commissioners was to add a third panel of commissioners to hear appeals from the arbitration level to the commission level. The need for the extra panel of commissioners is difficult to explain. Over 15 years ago, a third panel of commissioners was temporarily added because of increased backlog.

At that juncture, the commission was backlogged. However, at that time the number of applications being filed at the commission was more than 20,000 higher than it is right now. The percentage of cases being tried and appealed was significantly higher. Moreover, back at that time the Act provided that evidence could be introduced on review, so commissioners not only read briefs and heard oral arguments, but they also sent several days a month holding review hearings and taking additional evidence on cases. The nature of the appeals process hasn't changed. The number of cases has decreased. Therefore, the justification for a third panel of commissioners is questionable at best. No matter the reason, the appeals process is really slow right now. After a petition for review is filed and a transcript of the evidence is prepared, the parties file briefs within 45 days. After that point it has been taking 12 months or more for the commission to schedule oral arguments. This even includes cases involving 19(b) petitions.

A third panel was appointed temporarily many years ago to wrap up the backlog. This panel is permanent. Of course it was easier for the governor to appoint this panel once he enacted a tax on employers to fund the commission. It's easier to create jobs in state government when you don't need state money to pay for the positions but instead you charge someone else to pay the salaries of the new state employees.

I won't predict in print how I expect the new panels to rule. However, if anyone wants to call and discuss the new appointments and realignment of panels, I would be glad to talk about it with you. At least starting in September 2006 we should see more action in getting appeals heard and cases decided that are pending on review.

We are all still adjusting to the new Act and the changes in the PPD amounts depending on the date of accident involved. Please remember to always double check the date of accident when reserving cases and making offers. The PPD schedule of losses was increased July 20, 2005 by 7.5%. It was reduced back to original levels from Nov. 16, 2005 to Jan. 31, 2006 and again readjusted upward on Feb. 1, 2006.

Temporary partial disability is now a reality and applies to all dates of accident Feb. 1, 2006, and after. Check with employers and determine what amounts are being paid to individuals who are brought back to limited duty assignments. You can expect petitions for penalties to start coming in on individuals who have not been properly paid temporary partial disability. Attorneys will be seeking penalties under Sections19(k) and (l). Nonpayment of benefits can result in an additional award of not only 50% of the unpaid or underpaid benefit but also $30 per day up to a total of $10,000.

With the new Act and new commissioners, you can expect a certain number of petitioners' attorneys will come up with some novel and different arguments in an effort to extract even more money on cases.

I met with the new fraud investigators and participated in a seminar on workers' compensation fraud this spring. Both investigators are dedicated to actively investigating all complaints. They recognized as do I that the statute isn't nearly as strong as it could have been in punishing fraud. Nevertheless, I believe that they will be worthwhile resources for us to consider when we identify a case of fraud or suspect a case of fraud that merits investigation.

Michael E. Rusin is a senior partner of the Chicago firm Rusin, Maciorowski, Friedman. He can be reached at merusin@rusinlaw.com or by phone at (312)454-5119.

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