Expedited and Emergency Hearings 19(b-1) v. 19(b)

1. Expedited and Emergency Hearings19(b-1) v. 19(b) Petitioner and Respondent Perspectives September 6, 2012 James R. Thompson Center, Chicago, IL 1 Hour General MCLE Credit WCLA Young Lawyers Section Jon C. Walker Daniel R. Simones Michael S. Powalisz Brandon C. Hall

2. 19(b-1) and 19(b)Refresher • Emergency Hearings. • Employee not receiving medical, surgical, hospital services or TTD. • Such petitions shall have priority over all other petitions and shall be heard by the Arbitrator and Commission with all convenient speed. Language and substance the same in both 19(b-1) and 19(b)

3. HISTORY OF 19(b-1) • ENACTED IN 1983 IN RESPONSE TO COMPLAINTS THAT IT WAS TAKING TOO LONG TO RESOLVE EMERGENCY SITUATIONS UNDER SECTION 19(b). • Section 19(b-1) seeks to provide a means of quickly resolving the single question of whether the employee is entitled to receive workers’ compensation benefits. Choi Sun v. Industrial Comm’n, 695 N.E. 2d 862 (1998) (citing 83 General Assembly House of Representatives) See 83d ILL. Gen. Assemb., House Proceedings, June 16, 1983 at 28-29 (Statements of Representative McPike.)

4. 19(b-1) Distinguished • Such Petition shall contain the following information and shall served on the employer at least 15 days before it is filed: • The name and address, if known, of each witness to the accident and of each other upon whom the employee will rely to support his allegations; • The dates of treatment related to the accident by medical practitioners, and the names and addresses of such practitioners, including dates of treatment related to the accident at any hospital and the names and addresses of such hospitals; • A signed authorization permitting the employer to examine all medical records of all practitioners and hospitals; • Complete copies of any reports, records, documents and affidavits in the possession of the employee on which the employee will rely to support allegations, provided that the employer pay reasonable cost production; • List of any reports, records, documents and affidavits which the employee has demanded by subpoena and intends to rely to support allegations. • A copy of a signed report by a medical practitioner, relating to the employee’s current inability to return to work because of the injuries incurred as a result of the accident or such other documents or affidavits which show that the employee is entitled to receive compensation pursuant to paragraph (b) of Section 8 of this Act or medical, surgical or hospital services pursuant to paragraph (a) of Section 8 of this Act.

5. 19(b-1) Limited to Section 8(a) and 8(b) • For medical treatment and TTD only. • Permanency not at issue. • 19(b-1) petition not permitted for Vocational Rehabilitation and/or Maintenance.

6. EMPLOYEE MUST NOT BE WORKING • In Kaplan Trucking Co., Inc. v. Industrial Comm’n, Appellate Court, First District, concluded that 19(b-1) relief was not available to employee who had returned to work. 553 N.E. 2d 37 (1990) • Facts of Kaplan: • Sustained back injury on 7/18/1986. • Kept off work from July 1986 through March 1987. • Released by his physician in March of 1987. • 19(b-1) filed in June of 1987. • “When a claimant is able to work, the benefits of the expedited proceeding under Section 19(b-1) are not available to him.”

7. TOTAL INABILITY TO WORK? • In Sun Choi v. Industrial Comm’n, Supreme Court of Illinois concluded inability to work should be construed to equate to the term temporary total disability and not complete incapacity. 695 N.E.2d 862 (1998) • Facts of Sun Choi: - Claimant injured back while lifting patient in intensive care unit. • Her physician recommended sedentary work. • Employer admitted she had been injured and that they had refused to provide benefits under 8(a) and (b) of Act. • However, Employer contended 19(b-1) was defective because she failed to attach medical report showing her total inability to work. • Arbitrator awarded benefits, but Commission vacated because no medical report stating claimant totally incapable of work. - Circuit Court and Appellate Court agreed. • Supreme Court noted no requirement that employee is unemployable or must establish unavailability of employment. TTD is the standard.

8. What if employee is working but requires medical treatment under section 8 (a)? • Language of Act: If the employee is not receiving medical, surgical or hospital services as provided in paragraph (a) of Section 8 or compensation as provided in paragraph (b) of Section 8, the employee, in accordance with Commission Rules, may file a petition for an emergency hearing by an Arbitrator on the issue of whether or not he is entitled to receive payment of such compensation or services as provided therein. • Such petition shall contain the following information and shall be served on the employer at least 15 days before it is filed: (x) a copy of a signed report by a medical practitioner, relating to the employee’s current inability to return to work because of the injuries incurred as a result of the accident or such other documents or affidavits which show that the employee is entitled to receive compensation pursuant to paragraph (b) of Section 8 of this Act or medical, surgical or hospital services pursuant to paragraph (a) of Section 8 of this Act. • Kaplan Trucking v. Industrial Comm’n, Appellate Court seems to suggest claimant must be off work in addition to requiring medical treatment.

9. Petitioner’s 15 Day Requirement • After serving Employer, wait 15 days, then: - File Petition with Commission; - Serve Employer with Filed Petition. (Commission stamp) • Commission will assign Arbitrator and schedule pre-trial hearing to review sufficiency of 19(b-1) petition.

10. Respondent’s 15 Day Requirement • Upon receipt of unfiled petition, ensure file is ready for hearing (records, Section 12, witnesses). • Upon receipt of filed petition, Respondent must tender to Petitioner: • Complete copies of reports, records, documents, and affidavits in possession of the employer on which the employer intends to rely in support of in response. • The employer may file a motion to challenge the sufficiency of the petition. This is handled at the mandatory pre-trial hearing.

11. Service • All service must be by personal service or by certified mail and with evidence of receipt. • All service on the employer must be at the premise where the accident occurred if the premises are owned or operated by the employer, otherwise at the employee’s principal place of business or at the employer’s principal place of business. • After initial service in each case service shall be made on the employer’s attorney or designated representative.

12. WARNING • ANY EMPLOYER WHO DOES NOT TIMELY FILE AND SERVE WRITTEN RESPONSE WITHOUT GOOD CAUSE MAY NOT INTRODUCE ANY EVIDENCE TO DISPUTE ANY CLAIM OF THE EMPLOYEE BUT MAY CROSS EXAMINE THE EMPLOYEE OR ANY WITNESS BROUGHT BY THE EMPLOYEE AND OTHERWISE BE HEARD.

13. DISCOVERY??? • No document or other evidence not previously identified by either party with the petition or written response, or by any other means before the hearing, may be introduced into evidence without “good cause.” • If, at the hearing, material evidence is discovered which was not previously disclosed, the Arbitrator may extend the time for closing proof on the motion of a party for a reasonable period of time which may be more than 30 days.

14. The Courts take this seriously • In Mobil Oil Corp v. Industrial Comm’n (2002), the Arbitrator’s decision barring testimony of three witnesses in 19(b-1) proceeding was not abuse of discretion when the witnesses were not disclosed on the response, there was no attempt to amend response and there was no good cause shown for the failure to list the witnesses. 764 N.E. 2d 539. See also Fermi National Accelerator Lab v. Industrial Comm’n, 586 N.E.2d 750 (1992); University of Illinois v. Industrial Comm’n, 596 N.E.2d 823 (1992).

15. Mandatory Pre-Trial Conference • Arbitrator will hold a pre-trial conference within 20 days after the Petition for Emergency Hearing is filed. • Notice of pre-trial conference will be sent by the Commission to all parties of record. • Any challenges to sufficiency will be heard at pre-trial conference. • If Petition is found to be insufficient, Arbitrator will allow Petitioner 5 business days to cure defect. • If at pre-trial conference Arbitrator finds 19(b-1) to be sufficient, case will be set to be tried within 15 days.

16. Ordering Transcript at the Hearing • Parties to order copy of transcript of proceedings at the close of testimony or when proofs are closed. • If party or parties elect not to order transcript, it is unlikely it will be received in sufficient time for the use in statement of exceptions and supporting brief or response, in the event of petition for review. • The Commission will not consider the unavailability of transcript as good cause for failure to file a timely statement of exceptions and supporting brief or response.

17. EXPEDITED ARBITRATION DECISION Arbitrator’s Decision to be filed with the Commission within 25 days after proofs are closed. *No specific rule addressing proposed decisions, typically 7 days given Arbitrator’s requirement.*

18. On Review • Petition for Review: 30 days to appeal 19(b-1) decision. (Same as any other hearing) • Must contain – (a) Certificate of Service on opposing party (certified or personal); and (b) certification that payment for transcript to Court Reporter. • Appellant must file a Statement of Exceptions and Supporting Brief within 15 days of the Petition for Review. Appellee may elect to file Response within 15 days from the last day allowed for Appellant to file Exceptions and Brief.

19. Expedited Commission Decision •The Commission shall file its decision no more than 90 days after the filing of the Petition for Review, and not later than 180 days from the filing of the Petition under Section 19(b-1), whichever is sooner. •Commission does not lose jurisdiction if deadline not met.Orkin Pest Control v. Industrial Comm’n, 543 N.E.2d 1047 (1989)

20. TIMELINE IN PRACTICE • October 1, 2012 – Employee serves Employer with unfiled 19(b-1) Petition. (certified mail) • October 16, 2012 – Employee files 19(b-1) petition at Commission and serve Employer with file stamped petition. (certified mail) • October 31, 2012 – Employer responds and evidence to be used at hearing. (certified mail) • November 5, 2012 – Commission schedules mandatory pre-trial. (within 20 days of filed petition) • November 20, 2012 – Arbitrator hears case and closes proof. (within 15 days of mandatory pre-trial) • December 15, 2012 – Arbitrator files Decision. (25 days from closing proofs) • January 14, 2013 - Deadline for Petition for Review. (30 days from Arbitration Decision) • January 29, 2013 – Deadline for Appellant’s Statement of Exceptions and Brief. (15 days from Petition for Review) • February 13, 2013 – Deadline for Appellee’s Statement of Exceptions and Brief. (15 days from deadline for Appellant’s brief) • April 14, 2013 – Deadline for Commission Decision. (90 days from Petition for Review or 180 days from filing 19(b-1) Petition, whichever is sooner.

21. 19(b-1) ADVANTAGES OVER 19(b) • 19(b) has no requirement of: • Disclosing witnesses or disclosing evidence (sharing information resolves conflicts); • Mandatory pre-trial set by Commission; • Expedited arbitration decision (25 days from closing proofs); • Expedited Commission decision (90 days from petition for review)

22. Benefits to Employer/Respondent • Expedited decision on causation, TTD and need for surgery or medical treatment. • Expedited decision inherently limits TTD exposure. • Disputed claims adjudicated quickly.

23. Filing tips • Petitioner should disclose to Respondent ahead of time intent to pursue 19(b-1). • No benefit in surprising Respondent with 19(b-1) package delivered by certified mail or hand delivery. • Take Section 12 or medical causation depositions prior to 19(b-1). • Do not file 19(b-1) to compel discovery for video surveillance or other evidence -these are for emergency hearings.

24. After 19(b-1) Final Decision • Continue the expedited process… THE FINAL FRONTIER: 19(p) VOLUNTARY ARBITRATION

25. 19(p) Voluntary Arbitration • Parties may voluntarily agree to submit such application for adjustment of claim for decision by an arbitrator where the only dispute is TTD, PPD or medical expenses. (In reality, a decision on permanency to resolve case – the continuation of 19(b-1)). • Findings of fact made by an arbitrator within his or her powers shall be conclusive. • No Review to Commission – only appeal to Circuit Court of County. • Advisory Board shall compile a list of certified Commission Arbitrators, the Chairman shall select 5 to serve – the parties, by agreement, shall select 1 of the 5. • Parties agree on Arbitrator and bound by Decision.