Illinois Workers’ Compensation Commission Updated Personnel and Procedures – The Arbitrator Shuffle 2016
Permanent Partial Disability Awards In Illinois and Impairment Ratings: What’s Going On?
There were multiple amendments to the Illinois Workers’ Compensation Act in 2011. Prior to 2011, AMA guidelines had never been included in the Illinois Workers’ Compensation Act in any form. In what was to represent a landmark change, permanent impairment ratings pursuant to AMA guidelines were to be used for the first time effective September 1, 2011 in determining permanent partial disability in Illinois Workers’ Compensation cases.
Illinois employers anticipated this modification would result in fair and reasonable permanent partial disability awards by the Commission. It was anticipated the modification would result in awards that were no longer based on a loose and subjective standard. Employers were eager to see fair permanent disability awards based on objective medical criteria which documented a true percentage loss of a claimant’s ordinary health and function. Has this occurred over the past four years since the Act was amended? The answer seems to be a resounding NO!
Before the Act was amended in 2011, we analyzed permanent partial disability values for work related injuries based on a body of case law that had been created by the Commission over time. For 30 years, the Commission analyzed cases and published written decisions. The Commission rendered percentage loss of use PPD awards based on the Commission’s interpretation of what they felt represented a reasonable percentage disability, based on historic awards for similar injuries.
Essentially, the percentage disability figures were awarded with a recitation of the evidence and possibly some citations to awards for “similar” previous injuries. We had become accustomed to expecting a certain percentage disability award for a work related diagnosis, despite the fact that often the disability or impairment documented objectively in the medical records seemed nominal at best.
For example, cases involving minor neck or back strains were routinely compensated at 2% loss of use of the man as a whole. Cases involving a diagnosed unoperated disc herniation would be routinely compensated at 10% loss of use of the man as a whole, because historically that is simply what the Commission did. It seemed to matter very little how excellent a claimant’s recovery was and the final medical findings. If a work related diagnosis was believed by the Commission, an award in the customary percentage disability amount followed. Frequently, the PPD awards did not appear to be supported by objective factual evidence. Hence, real change was necessary. Real change was necessary to stop percentage permanent partial disability awards that were simply arbitrary and subjective. With the 2011 amendment, the awards were finally to have a medical and scientific basis for the percentage impairment or disability to the body part. At least, based on the language of the Act, that is what employers anticipated would occur. It has not.
Generally, the Commission appears to be rendering slightly lower PPD awards in cases over the past four years. However, on a regular basis, Commission decisions analyzing PPD and rendering percentage loss PPD awards fail to follow the plain language of the amended Act. The Commission PPD awards continue to appear arbitrary and subjective despite the legislative changes and the inclusion of AMA guidelines. As of September 2011, the Act was changed to outline specific criteria to be utilized in determining permanent partial disability awards. The prior body of case law created by the Commission before September 2011 should not have any impact on awards made after September 2011. Current awards must be based on Section 8.1b of the Act which is entitled AMA Guides. This section states as follows:
“Sec.8.1b. Determination of Permanent Partial Disability. For accidental injuries that occur on or after September 1, 2011, permanent partial disability shall be established using the following criteria:
(a) a physician licensed to practice medicine and all of its branches preparing a permanent partial disability impairment report shall report the level of impairment in writing. 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. The most current addition of American Medical Associations “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. 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 written order.”
The plain language of this section infers that the permanent partial impairment (PPI) rating pursuant to AMA guidelines is the primary factor to be utilized in determining permanent partial disability. While the language of 8.1b(b)(v) states no single enumerated factor shall be the sole determinant of disability, the language identifies the PPI rating as the primary factor in determining disability which the other factors must be shown to impact. An impairment rating is based on a percentage for a reason. The percentage represents an objective medical analysis of the percentage deviation from an individual’s normal health and function. The plain language of Section 8.1b(b)(v) of the Act specifically states that it is this impairment rating which is utilized in determining the level of disability and the other four factors must be explained in written order as to their relevance and weight in determining disability in addition to the impairment rating.
However, the Commission is not analyzing cases consistent with the language of Section 8.1b.
Generally, the Commission appears to reach conclusions as to percentage PPD awards which state all five factors are taken into account in rendering the award. However, more often than not, the conclusion as to the PPD award does not explain the weight given to the other factors in addition to the impairment rating. Frequently, Commission awards do not explain the specific reasoning as to how percentage disability figures inflate beyond the rating. This gives the impression that conclusions are being reached as to percentage disability awards without truly taking into account the impairment rating which provides a medical analysis of the percentage loss of function of the body part involved. It gives the impression the Commission is simply continuing to make arbitrary and subjective PPD awards despite amendments to the Act which were supposed to put an end to this practice.
The utilization of AMA guidelines in determining permanent partial disability awards was to represent a major change in Illinois Workers’ Compensation practice and Commission decision making. Impairment ratings pursuant to AMA guidelines were to represent the primary factor in determining permanent disability awards. I believe this statement is supported by the plain language of the Act.
Additionally, a review of the legislative history debates regarding the 2011 amendments support my statement. A negotiation took place between business and labor as to whether AMA guidelines would be utilized in Illinois and their role. Business interests sought strict compliance with AMA guidelines in determining permanent disability payouts and awards. While the final legislation that was enacted does not require strict compliance with AMA guidelines, it is to be the primary factor in determining PPD entitlement. This is supported by the legislative history and debate concerning the legislation which took place prior to the enactment of the amendments in September of 2011.
Debates concerning the AMA section of the amended Act took place May 29, 2011 on the 68th legislative day. At that time, Representative John Bradley, who was apparently involved in negotiations over this issue, was questioned whether there was an agreement between the governor and Caterpillar, a major Illinois employer, for strict AMA guidelines. Representative Bradley stated :
“I…their…their shaking their heads no, there was no agreement between myself and Caterpillar as a negotiator. There was no agreement between the Senate. I would say that Navistar, Mitsubishi, Marriott, Hyatt, United Airlines, Ford Motor Company, Walmart, Commonwealth Edison, American Airlines, all are satisfied. Pepsi, are all satisfied with the language. And on the AMA guidelines on the negotiation that took place, we really got down to one sentence. In that one sentence in that bill was whether or not we were going to have strict AMA State with no ability to take into the unique circumstances of an individual, or we were going to have a State which allowed for the taking into account, for the unique circumstances of an individual…
…and the line from where we started and where we ended up was very close, and so we had a decision to try to make as to where to drop that line, in terms of where it would fall and it was a very close discussion it was a very thoughtful and a very deliberate discussion and we dropped it just short, just short, of where the Peoria based company wanted it to be…” see 97th General Assembly House of Representatives Transcription Debate, 68th legislative day(5/29/2011), page 30.
Thus, the legislative history supports the conclusion that while the impairment rating pursuant to AMA guidelines is not strictly used in determining PPD awards, it is to be the primary factor utilized. The drafters of this section understood that there would not be strict compliance with AMA guidelines, but intended the language to require AMA guidelines to be of primary importance. Certainly, evidence of unique circumstances of an individual may change the percentage permanent partial disability award, but it was anticipated PPD awards would be close to PPI ratings.
It simply was not the intention of the drafters of the amendment to the Act that the Commission would now issue what appeared to be arbitrary and subjective percentage disability awards based on general statements that all five factors were considered and still issue inflated PPD awards far in excess of the PPI rating in most instances. It was not the intention that the Commission would determine an arbitrary numeric disability award which appeared to bear little resemblance to the impairment rating which is to represent the true percentage deviation of function of the body part based on medical and expert analysis. Certainly, it was not intended for the Commission to inflate a PPD award beyond the rating without a real analysis and explanation of the factors used “in addition” to the rating. If an “additional” factor increases PPD value the importance and weight attributed to the factor must be outlined and specific criteria established.
In recent weeks, the Workers’ Compensation Commission Division of the Appellate Court rendered a decision in which it provides some analysis of Section 8.1b of the Act in Continental Tire of the Americas, LLC vs. Illinois Workers’ Compensation Commission, 2015 IL App(5th) 140445WC. In this case, the employer appealed a judgment of the Circuit Court confirming the Commission’s decision which awarded petitioner 5% loss of use of the left hand. The case involved a minor accident and injury. Petitioner tripped and fell while taking out trash and suffered a chip fracture of the triquetral bone in the left wrist. Petitioner was treated conservatively. He was discharged from care approximately four weeks post injury at which time he was noted by the treating doctor to be much better and doing great. The treating doctor did not believe petitioner suffered any residual functional loss to the left wrist or hand. It was expected some soreness would go away over time. In the final report, the treating doctor concluded petitioner had not sustained any permanent impairment based on AMA guidelines. His PPI rating was zero. After considering the evidence, the Commission awarded petitioner 5% loss of use of the left hand.
The employer appealed and claimed permanent partial disability should have been denied because 1) petitioner did not present a physician’s report supporting a finding of permanent partial impairment and 2) under the manifest weight of the evidence standard, the Commission failed to give proper weight to the treating doctor’s impairment report.
The Court disagreed with the employer’s arguments. The Court stated that 8.1b of the Act does not require the claimant to submit an impairment rating report of an expert physician into evidence. It only requires the Commission consider a report, regardless of which party submitted it. Further, the Court states that 8.1b of the Act does not specify the weight the Commission must give to the physician’s impairment rating report. The Court states that the Commission weighed all factors in determining a permanent disability award and the award did not violate the language of the Act as a matter of law. The Court did not find sufficient evidence under the manifest weight of the evidence standard to reverse the finding of the Commission that petitioner sustained permanent injuries to the extent of 5% loss of use of the left wrist.
The employer’s arguments in this case centered primarily on the sufficiency of petitioner’s evidence. The Court ruled sufficient evidence was presented and the Commission satisfied its duties in evaluating all the evidence and rendering an award of 5% loss of use of a hand. The Court did not provide extensive direction in analyzing and interpreting Section 8.1b or in particular 8.1b(b)(v). The Court does not provide guidance or criteria in determining PPD values when considering the other factors “in addition” to the rating.
It does not appear that Continental Tire’s attorney’s contended the impairment rating was to be the primary factor in determining permanent disability based on the language of Section 8.1b(b)(v). Rather, Continental argued the evidence was insufficient to support any permanent disability award and the Court disagreed. The Court found sufficient evidence existed to support a finding of permanent disability of 5% of a hand. Although the Court states Section 8.1b does not specify the weight that the Commission must give to the physician’s report, in our view, the report is the primary factor to be considered based on the plain language of Section 8.1b(b)(v) as well as the legislative history.
Employers must demand the Commission analyze permanent partial disability awards taking the PPI rating as the primary factor. Employers must insist on Commission decisions which specifically explain the weight and relevance given to other factors, if they are to inflate a PPD award beyond the PPI rating. If the Commission is to increase a PPD value beyond the percentage impairment rating, the reason and significance of the evidence used must be fully explained by the Commission in its analysis. As employers and employer representatives, we must demand the Commission render disability awards that truly reflect a percentage functional loss that is evidence based. We cannot accept Commission decisions which simply reach conclusions which appear to ignore the impairment rating. The intent of the amendment to the Act was for the impairment ratings to be meaningful and not simply lost in the shuffle.
