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Workers’ Compensation FLASHPOINTS May 2020

May 15, 2020Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

The appellate court filed a long opinion at the end of March that addresses multiple issues, primarily that of a petitioner’s credibility and whether a petitioner can voluntarily dismiss a petition pursuant to §19(b) of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., after the arbitration hearing has commenced. This decision is reviewed this month, and also included is the now repealed emergency amendment to the Illinois Workers’ Compensation Commission Rules that addressed the COVID-19 pandemic and protections for first responders and essential workers.

Appellate Court: No Abuse of Discretion by Arbitrator and Commission in Denying Petitioner’s Motion To Withdraw §19(b) Petition

The court addressed the question of a petitioner’s ability to withdraw a §19(b) petition after a hearing commenced and other issues in Centeno v. Illinois Workers’ Compensation Commission, 2020 IL App (2d) 180815WC. The §19(b) petition that is the subject of this case was the second §19(b) petition filed by the petitioner. The first §19(b) petition alleged an accidental injury occurring October 7, 2010. The petitioner claimed a left ankle fracture, a left knee sprain, and a low-back sprain/strain. An arbitrator awarded temporary total disability (TTD), medical expenses incurred, and prospective medical care. The arbitrator denied the request for penalties and attorneys’ fees. The Commission modified the award of medical expenses by reducing the amount of expenses incurred and affirmed the rest of the decision. Both parties filed for judicial review, upon which the court increased the weekly TTD rate and confirmed the rest of the decision. The appellate court affirmed the judgment.

While the case was pending on appeal, the petitioner filed a second §19(b) petition. The hearing began December 21, 2015, before Arbitrator Doherty. The petitioner claimed TTD and medical expenses incurred since the date of the first hearing, unpaid TTD benefits and medical expenses awarded at the first hearing, prospective medical care awarded at the first hearing that had not yet been authorized by the respondent, and penalties and attorneys’ fees. The respondent disputed any causal connection between the work accident and the petitioner’s condition of ill-being subsequent to the issuance of the prior decision.

At the second hearing, the petitioner testified he was unable to work due to continued back pain and that he had treated with Dr. McNally and his last visit to the doctor before the first §19(b) hearing was December 21, 2011. The petitioner did not return to Dr. McNally until April 3, 2014. There were also visits in June 2014 and August 2015. Dr. McNally continued to recommend a discogram and surgery, which he had recommended prior to the first §19(b) hearing.

The petitioner denied applying for work with any employer for the last five years. He admitted working for Countywide Landscaping before the injury in this case, but denied working there after October 2010. A job application for Countywide dated May 13, 2013, contained his Social Security number, which he admitted was his but he could not recall if he lived at the address on the application. He denied receiving a W-2 wage statement from 2013 from Countywide with the name “Nelson Centeno” and his social security number. He testified that “Nelson Centeno” was his name since he had been in Illinois and denied identifying as a “Roberto Morales.” He did not remember being arrested by a West Chicago police officer in 2014 or being charged with identity theft and forgery.

He denied filing an application for adjustment of claim against Countywide under the name “Roberto Morales” for an accident on August 7, 2014. He denied living in Bridgeport, Connecticut, despite being shown an IRS notice from 2007 that listed his name and social security number. He denied the photo contained on a United States resident card issued November 24, 2011, with the name “Roberto Morales” was him.

After his testimony, his attorney advised that there was a breakdown in the relationship and requested a continuance. The attorney explained that he had to resolve the conflict as to whether he would be discharged before going further. The respondent’s attorney objected and wanted to present witnesses who would challenge the petitioner’s credibility. The arbitrator granted the request.

The hearing resumed January 25, 2016, but the petitioner did not appear. His attorney continued to represent him and moved to withdraw the §19(b) petition. The arbitrator denied the motion because the only reason for the continuance was to allow the attorney to resolve the ethical issues.

The respondent called a detective from the West Chicago Police Department who investigated a case of identity theft involving the name “Nelson Centeno.” The detective spoke to a person at Countywide in 2014 who admitted to purchasing the name “Nelson Centeno” and a social security card with a fraudulent number. At the police station, the person admitted his name was “Roberto Morales.” The detective was at the December 21, 2015, hearing and identified the petitioner at that hearing as both “Roberto Morales” and “Nelson Centeno.”

Countywide’s office manager testified. She had been the office manager since 2011. She identified wage ledgers showing pay dates to “Nelson Centeno” in 2006, 2007, 2008, 2013, and 2014. In February 2014, Centeno asked her to change his payroll checks to “Roberto Morales.” She told him she could not do that without something telling her that is who he was. He later produced a resident card and social security card with his name “Roberto Morales.” She identified wage ledger pay dates to “Roberto Morales” for 2006, 2007, 2008, 2009, 2010, and 2014. She was not sure what happened between the years 2010 and 2014 or whether “Roberto Morales” who worked for Countywide in 2014 was the same “Roberto Morales” who worked there before 2014. She wrote a letter in May 2015 to the child support enforcement services in Connecticut of a change in identity from “Nelson Centeno” to “Roberto Morales.” She included in the letter the fact that “Roberto Morales” filed an application for adjustment of claim against Countywide for an accident on August 7, 2014, claiming injuries to his back and legs.

The arbitrator filed a decision denying the claim. The arbitrator noted the petitioner had not been treated for his left ankle or leg after the first §19(b) hearing. As for the back condition, she found the gap in treatment with Dr. McNally was “detrimental” to his claim of continued causation between the October 2010 injury and his low-back condition. She found he was temporarily totally disabled only through September 7, 2012, the date of the first §19(b) hearing based on the significant gap in treatment between 2011 and 2014. She wrote that “substantial evidence was presented which places great doubt on [claimant’s] claimed inability to work during his currently claimed period of TTD commencing 9/7/12 through the present.” 2020 IL App (2d) 180815WC at ¶22. She denied the request for penalties and attorneys’ fees and determined it was premature to address the claim for penalties and fees stemming from the respondent’s failure to pay the previously awarded medical expenses because the appeal was pending.

The petitioner filed for review, and the Commission affirmed and adopted the decision. The Commission commented that the petitioner’s actions were disingenuous. The Commission determined the transcripts in the Centeno case and Morales case must be considered together. The Commission amended the application for adjustment of claim in both cases to reflect the name “Nelson Centeno a/k/a Roberto Morales.” 2020 IL App (2d) 180815WC at ¶23. The Commission further attached to its decision the arbitrator’s decision and considered the transcript from the Roberto Morales case as the Commission’s Exhibit 1 to allow a reviewing court the full understanding of the dishonest nature of the petitioner. The Commission stated in conclusion that it had not seen “a more prolific liar” since the petitioner in Walker v. Illinois Medi-Car, Inc., 2017 IL App (2d) 160368WC-U, and that “Nelson Centeno aka Roberto Morales under any nom de plume cannot be believed and has no credibility.” 2020 IL App (2d) 180815WC at ¶24.

On appeal of the circuit court judgment, the petitioner raised six issues. His first claim was that the Commission’s decision was “null and void” because, by moving to withdraw the §19(b) petition, the Commission did not have the power to proceed to a hearing and issue a decision. 2020 IL App (2d) 180815WC at ¶27. The court held the issue was forfeited because the petitioner failed to include a discussion of this issue in the statement of exceptions and brief before the Commission. The court’s analysis went further and noted that its research had not found any provision of the Act or the Commission rules that govern voluntary dismissals after an arbitration hearing has commenced. The standard of review that applies to a motion to voluntarily dismiss an action after a trial or hearing has begun is whether the trial court abused its discretion. The court found that the arbitrator did not abuse her discretion because the motion was clearly filed after the hearing commenced and the respondent would be prejudiced since testimony unfavorable to the petitioner’s position had been elicited. The court rejected the argument that the decision was “null and void” and that the petitioner had the absolute right to withdraw the petition after the hearing commenced and testimony unfavorable to him had been elicited, relying in part on Brewerton Coal Co. v. Industrial Commission, 324 Ill. 89, 154 N.E. 412 (1926). 2020 IL App (2d) 180815WC at ¶¶33 – 35.

The second argument was that “the Commission was without authority to consider the transcripts and evidence in the Morales case.” 2020 IL App (2d) 180815WC at ¶37. The court found no merit to the argument and found that “the Commission properly took judicial notice of the Morales case.” 2020 IL App (2d) 180815WC at ¶39. This information was verifiable and aided in the efficient disposition of the case by providing “a full understanding of the dishonest nature of [claimant],” i.e., that claimant admitted that he used the stolen identity of Nelson Centeno. The court also pointed out that “the respondent proffered evidence of the Morales case at the second section 19(b) hearing.” Id.

The next argument involved the issues in the case. The respondent stipulated it was contesting liability for medical and TTD based only on causal connection. The petitioner argued the Commission violated the stipulation by deciding the case on a different basis, i.e., that he had reached maximum medical improvement and was capable of working. The court described this as a misunderstanding of the decision. The arbitrator found the petitioner failed to sustain his burden of proving a causal connection between his injury and his condition of ill-being subsequent to the first §19(b) hearing September 7, 2012, based on “the significant gap in treatment between 2011 and 2014.” 2020 IL App (2d) 180815WC at ¶42. Thus, the Commission did decide the case on causal connection. The Commission, as the trier of fact, was not required to accept petitioner’s testimony that he was unable to work or Dr. McNally’s records, which indicated he was unable to work, especially with the evidence that placed his credibility in doubt.

The court then addressed the argument that the Commission violated the law of the case doctrine by concluding it was without authority to award the previously awarded medical expenses, TTD, and prospective medical care. The court disagreed based on the decision in Millennium Knickerbocker Hotel v. Illinois Workers’ Compensation Commission, 2017 IL App (1st) 161027WC, 76 N.E.3d 825, 412 Ill.Dec. 759, which held that the circuit court is the proper venue to seek enforcement of a final award of the Commission. 2020 IL App (2d) 180815WC at ¶47. The only method for enforcing a final award of the Commission is in the circuit court pursuant to §19(g). The appellate court decision in Centeno I was filed June 21, 2016, and no further appeals were taken. That made the Commission’s first §19(b) award final. When the Commission issued its decision in this case on December 15, 2017, it correctly determined the only method to seek enforcement was in the circuit court. The court disagreed with the petitioner’s argument that Millennium Knickerbocker Hotel was distinguishable because it did not involve a petitioner presenting a second §19(b) petition.

The petitioner claimed the Commission erred in failing to award attorneys’ fees and penalties for the nonpayment of the uncontested portion of medical bills, TTD, and prospective medical care awarded at the first §19(b) hearing. The court found the petitioner forfeited the issue of entitlement to attorneys’ fees and penalties based on the respondent’s failure to pay for the prospective medical care awarded at the first §19(b) hearing because he failed to raise it before the arbitrator. He had also forfeited the issue of entitlement to attorneys’ fees and penalties based on the respondent’s delay in paying $17,389 in TTD because he failed to raise it in this appeal. The court did find the Commission erred in failing to award penalties and attorneys’ fees for uncontested amounts of TTD ($1,101.57) and medical bills ($66,781.33) awarded at the first §19(b) hearing. 2020 IL App (2d) 180815WC at ¶59. The petitioner had appealed the award of medical expenses, but it was only to challenge the Commission’s reduction of the medical expenses by $30,461.68. At the time of the arbitrator’s decision in the second §19(b) hearing, the remaining $66,781.33 in medical expenses were undisputed. Id. As a result, the Commission’s decision was against the manifest weight of the evidence and the case was remanded for a determination on penalties and fees.

The final issue was the denial of medical and TTD relative to his back condition subsequent to the date of the first §19(b) hearing. The court found Arbitrator Doherty’s and the Commission’s determinations, particularly with respect to the petitioner’s lack of credibility, were not against the manifest weight of the evidence. The arbitrator found that the “more-than-two-year gap in treatment was ‘detrimental’ ” to the claim of continued causal connection. 2020 IL App (2d) 180815WC at ¶64. This gap also served as the basis for finding temporary total disability up to September 7, 2012. In affirming and adopting these findings, the Commission emphasized the claimant’s lack of credibility based on his use of two identities, employment with Countywide while claiming to be unable to work, and that he filed a workers’ compensation claim against Countywide alleging a back injury in August 2014. The petitioner argued Dr. McNally’s treatment plan did not change and his records were unrebutted. The court commented that this ignored the fact that Dr. McNally was not aware of the employment with Countywide after the first §19(b) hearing. His records reflected the petitioner’s last day of work was October 7, 2010, and the petitioner indicated on the patient registration form that he was not employed. The arguments failed to establish that the Commission’s decision was against the manifest weight of the evidence.

Commission Repeals Emergency Amendment to Rule 9030.70 of Rules Governing Practice Before the Workers’ Compensation Commission for Protection of First Responders and Essential Frontline Workers Most Susceptible to Exposure to COVID-19

The Commission’s emergency amendment to Rule 9030.70 of the Rules Governing Practice Before the Workers’ Compensation Commission, approved April 16, 2020, was enacted without going through the normal rulemaking process. See §5-40 of the Administrative Procedure Act, 5 ILCS 100/1-1, et seq. The Commission repealed the rule April 27, 2020, in response to a suit filed by the Illinois Retail Merchants Association and the Illinois Manufacturers’ Association. The amendment modified the rules of evidence for practice before the Commission to ensure that first responders and essential frontline workers would be afforded the full protection of the Workers’ Compensation Act if they were exposed to or contracted the virus.

Rule 9030.70(a) states that the Illinois Rules of Evidence shall apply to all proceedings before the Commission, either upon arbitration or review, except to the extent they conflict with the Workers’ Compensation Act, the Workers’ Occupational Diseases Act, 820 ILCS 310/1, et seq., or the Rules Governing Practice Before the Workers’ Compensation Commission.

The amendment had added subsections (1) and (2) to Rules 9030.70(a), which had read:

1) In any proceeding before the Commission in which the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.

2) The term “COVID-19 First Responder or Front-Line Worker” means any individuals employed as police, fire personnel, emergency medical technicians, or paramedics, and all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the crucial personnel identified under Section 1 Parts 7, 8, 9, 10, 11, and 12 of Executive Order 2020-10 dated March 20, 2020.

According to Chairman Brennan, with the repeal of the Rule, things are back to the status quo. Whether the Governor issues an executive order remains to be seen.

For more information on workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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