Heyl Royster


Heyl Royster


High Court Denies Leave to Appeal in AMA Rating Report Case: What This Means for Your Claims


By: Brad Elward, belward@heylroyster.com

In late November the Illinois Supreme Court denied the employer’s petition for leave to appeal in the decision of Corn Belt Energy Corp. v. Illinois Workers’ Compensation Comm’n, 2016 IL App (3d) 150311WC, which held that section 8.1b of the Workers’ Compensation Act, the so-called AMA impairment rating report provision, did not require the claimant to obtain and introduce an AMA impairment report as set forth in subsection (a) of the Act. Moreover, at about the same time, the Appellate Court, Workers’ Compensation Commission Division, handed down two decisions interpreting subparagraph (b) of the Act, which contains the various factors the Commission is to consider when determining permanent partial disability.

Now that the dust has settled, we want to revisit section 8.1b and provide you with a status report on how section 8.1b can be used to help determine and control permanency awards in your cases.

The Act

Section 8.1b was enacted as part of the 2011 Workers’ Compensation Reform and welcomed by employers across the state as a means to link permanency awards to the American Medical Association (AMA) impairment rating system. Section 8.1b, entitled “determination of permanent partial disability,” provides:

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 in 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 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. 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.

820 ILCS 305/8.1b.

At the time of passage there had been great hope that the provision would help reduce what had been perceived as unwarranted permanency awards by requiring the Commission to consider the AMA impairment rating report as one of five factors in evaluating permanency.

Prior to mid-2016, it had been the position of much of the defense bar that section 8.1b placed the burden of obtaining and offering an AMA impairment rating report into evidence on the claimant. In some cases, the defense had taken the position that the failure of the claimant to offer such a report meant the claimant had failed to comply with section 8.1b and therefore, failed to make a prima facie case of disability. Thus, the claimant should get a zero award of permanency.

Judicial Interpretation

In 2016, two cases were decided by the appellate court holding that a section 8.1b impairment report is not required. First, in Corn Belt Energy, and later in Central Grocers v. Illinois Workers’ Compensation Comm’n, 2016 IL App (3d) 150557WC-U (a Rule 23 decision), the Appellate Court, Workers’ Compensation Commission Division, held that “[s]ubsection (a) does not contain any language which obligates either a claimant or an employer to submit a PPD impairment report,” and “it contains no language limiting the Commission’s ability to award PPD when no report is submitted.” Corn Belt Energy, 2016 IL App (3d) 150311WC, ¶ 45.

According to the appellate court, subsection (a) of section 8.1b is addressed “only to a ‘physician *** preparing a [PPD] impairment report.” Id. “It sets forth what a physician should include in his or her report and establishes that the report must be ‘in writing.’” Id.

According to the appellate court, an AMA impairment rating report may be submitted by either party and when one is admitted into evidence, it must be considered by the Commission, along with other identified factors in subsection (b), in determining the claimant’s level of PPD. However, none of the factors set forth in the statute is to be the sole determinant of the claimant’s disability, and, in accordance with Continental Tire of the Americas, LLC v. Illinois Workers’ Compensation Comm’n, 2015 IL App (5th) 140445WC, ¶¶ 18-19, nothing in section 8.1b precludes a PPD award when no AMA impairment rating report is submitted by either party or when the report submitted is valued at zero impairment. Corn Belt Energy, 2016 IL App (3d) 150311WC, ¶ 48.

According to Corn Belt Energy, when the Commission issues its decision, it must “set forth each of the aforementioned factors in its decision along with the basic facts applicable to each factor.” Id. ¶ 52. However, in that case, the court concluded that the Commission did not explain the relevance or weight it attributed to each factor when determining claimant's level of disability, and thus, “the Commission failed to comply with section 8.1b(b) of the Act.” Id. As a result, the appellate court reversed the Commission’s PPD award and remanded the case back to the Commission for compliance with the Act’s requirements.

In November 2016, the appellate court released two additional cases interpreting subsection (b) of section 8.1b. First, in Flexible Staffing Services v. Illinois Workers’ Compensation Comm’n, 2016 IL App (1st) 151300WC, the court confirmed that whether the Commission has adequately articulated and evaluated the section 8.1(b) factors will be reviewed under a manifest weight of the evidence standard of appellate review. Flexible Staffing, 2016 IL App (1st) 151300WC, ¶ 22. Second, and related to the first, the appellate court made it clear that it is giving the Commission great deference in its evaluation of the five factors:

Quite simply, we owe the Commission considerable deference on such medical questions. *** It is not within our purview to rebalance the five factors set forth in section 8.1b(b) and substitute our judgment for that of the Commission.

Id. ¶ 32.

Third, the decision also made it clear that despite the factors enunciated in subsection (b), these factors are not exclusive. “[T]he Commission remains free to evaluate other relevant considerations.” Id. ¶ 22. Although this statement appears to run contrary to section 8.1b’s specific language and its intent, the interpretation now stands.

On the same day it handed down Flexible Staffing, the appellate court also released Con-Way Freight, Inc. v. Illinois Worker’s Compensation Comm’n, 2016 IL App (1st) 152576WC, which involved a claimant who sustained injuries when a dolly weighing several thousand pounds ran over both feet. At the time of the injury in December 2011 the claimant was 42 years old; he sustained factures to the right fourth and fifth metatarsals, a dislocation of the proximal interphalangeal joints of the fifth toe on the right side, and a fracture of the cuboid and proximal phalanx of the left foot. That same day an orthopedic surgeon, performed surgery and two surgical screws were placed in the claimant's foot. Con-Way Freight, Inc., 2016 IL App (1st) 152576WC, ¶ 3.

Following the surgery, the claimant followed up with his physician approximately once per month for two months and was released to return to light duty work on March 27, 2012. He was discharged from care and released to work full duty beginning April 4, 2012. Id. ¶ 4.

The employer obtained the AMA impairment rating report of Dr. Mark Levin, who stated that the claimant had no impairment respecting the left foot and four percent impairment respecting the right foot. The arbitrator nevertheless awarded 30 percent PPD relating to the right foot and 8 percent PPD of the left foot. The Commission affirmed.

On appeal the employer argued that the section 8.1b “require[d] the impairment rating to be the primary factor to be considered in establishing [PPD].” Id. ¶ 17 (emphasis in original). Moreover, it argued that, under this plain language, “the other four factors can either increase or decrease the impairment rating, but the impairment rating must be given primary significance.” Id. The employer argued that the Commission’s PPD award should be reduced because the Commission ignored Dr. Levin's impairment rating and did not consider the impairment rating as the “primary factor.” The employer suggested that, as a matter of law, a PPD award of only 5 to 10 percent loss of use of the right foot and 0 percent loss of use of the left foot was appropriate. Id.

The appellate court disagreed, and said that “[n]othing within this statutory language allows us to require the Commission to treat the impairment rating as the ‘primary factor.’” Id. ¶ 23. In fact, the court said, “such a requirement would be contrary to the plain language of the statute. The Commission is obligated to weigh all of the factors listed within section 8.1b(b) and make a factual finding with respect to the level of the injured worker’s permanent partial disability, with no single factor being the sole determinant of disability.” Id. According to the court, the Commission in Con-Way Freight “properly followed section 8.1b(b)'s requirement by weighing Dr. Levin's report along with the four other listed factors, making specific findings with respect to each enumerated factor.” Id.

According to the appellate court, there were other factors considered by the Commission that warranted its departure from the two AMA impairment ratings offered by the employer. Namely, the record included evidence that since the claimant had returned to work full duty, he had noticed increased pain and other symptoms in his right foot and his pain worsened in cold weather, when driving long distances, and when pressing his foot on the pedal of the truck. The claimant took over-the-counter pain medication daily to relieve the pain and removed his boot while driving. The injury had affected his ability to walk his dog as far as he did prior to the accident, he no longer rides his bicycle as much as he used to, and his right foot continually throbs. The claimant also testified that his left foot had a constant tingling sensation, numbness, and a loss of range of motion in the fifth toe. Id. 26.

The appellate court observed, “[a]lthough Dr. Levin opined that, under the AMA Guides, the claimant sustained a 4 % impairment rating for the right foot and no permanent partial impairment for the left foot, it was up to the Commission to determine what weight to give to Dr. Levin's report.” Id., ¶ 27. The court found that the Commission had “adopted the arbitrator's analysis, in which the arbitrator evaluated the other four factors listed in section 8.1b, in conjunction with Dr. Levin's report, and made specific finding with respect each of the factors in determining the appropriate amount of PPD benefits.” Id. Thus, the appellate court affirmed the Commission’s decision.

Tips on Handling Your Case

Given the recent flurry of appellate court activity, where do these decisions leave your claims handling in respect to a section 8.1b AMA impairment rating report? From the cases, we know that if a report is desired, it will almost always have to be obtained and offered by the employer. Since the Supreme Court’s November order denying the employer’s petition for leave to appeal in Corn Belt Energy, the claimant’s bar will undoubtedly take the position that it no longer needs to obtain such a report and will not do so. Most AMA impairment reports work to drive down the ultimate disability rating and we do not anticipate that claimant’s will be in a hurry to move their cases in that direction. Employers will have to obtain and offer AMA impairment rating reports.

Given that, what is the next step in defending a claim for permanency falling within section 8.1b?

Since the employer will now carry the burden of obtaining and introducing an AMA impairment report, we recommend that a report be obtained once the claimant reaches maximum medical improvement (MMI). While each case will need to be examined on its own merits, our experience has found that AMA impairment ratings are typically lower than the percentages seen in the former Q-Dex and that AMA impairment rating reports do put downward pressure on the overall permanency award.

As far as introducing evidence to address the remaining factors stated in subsection (b), the recent decisions of Flexible Staffing and Con-Way Freight make it clear that the appellate court is not looking to substantially interfere with the Commission’s determinations, absent a complete refusal to address the factors, as was the case in Corn Belt Energy. As was the case prior to enactment of section 8.1b, we will continue to fully develop our evidence showing lack of impairment and disability.

At Heyl Royster we have received good benefits from using and arguing AMA impairment rating reports and we do believe they are influential with the arbitrators and Commission. Our experience has shown that AMA impairment rating reports are not a waste of time and that they are an important factor to be considered along with the other elements of subsection (b).

While legislative efforts are underway to introduce a more strongly worded section 8.1b that truly makes the AMA impairment report an important factor, until then we will have to proceed with the suggestions outlined above.