In Continental Tire of the Americas, LLC, v. Illinois Workers' Compensation Comm'n, 2015 IL App (5th) 140445WC, which was released late on Friday, November 6, 2015, the Appellate Court, Workers' Compensation Commission Division, offered the first insight into how it views section 8.1b of the Workers' Compensation Act – the so-called AMA impairment rating provision – since its adoption in 2011. In the case, the claimant slipped and fell at work and fractured his left wrist. The claimant's wrist was placed in a splint and he was restricted to light duty work. The claimant was ultimately released to full duty work with no restrictions and returned to work earning the same rate of pay he did prior to the accident. He also worked more hours.

When the claimant returned to work, his physician said the claimant's wrist was doing great and was much better, with good range of motion and no tenderness. The claimant testified that he continued to have some pain in his hand when he grabbed tires and when playing golf.

The arbitrator found the claimant was entitled to a five percent loss of use of his left hand. Although the claimant did not introduce an AMA impairment report, the employer did offer a report, prepared by the treating orthopedist, which concluded the claimant's impairment rating was zero. Despite the zero impairment AMA report, the arbitrator found and the Commission affirmed that the remaining factors from section 8.1b(b) justified the five percent award.

Appellate Disposition

On appeal, the employer argued that the AMA zero impairment report foreclosed the Commission from considering the remaining four factors under section 8.1b(b) as a matter of law. According to the employer, the zero impairment rating meant that the remaining factors could not be considered, and no permanency could be awarded. Alternatively, the employer argued the Commission had failed to explain how any of the remaining factors impacted the disability analysis. The employer argued that the Commission essentially restated general facts in response to the remaining section 8.1b(b) factors and did not explain why or how those facts justified a departure from the zero percent AMA impairment rating beyond noting minor residual symptoms.

The appellate court rejected the employer's argument and unanimously affirmed the Commission's decision. At the outset, the appellate court summarized the employer's argument as follows:

First, the employer asks us to interpret section 8.1b under a de novo standard of review and hold that the claimant was required under section 8.1b to submit a medical report in support of his disability. The employer emphasizes that the claimant did not offer any subsection (a) report that supported a permanent impairment; instead, the only report in the record is the report that it obtained from Dr. Brown, which contains a 0% impairment rating. Therefore, the employer argues that we must reverse the Commission's award as a matter of law under a de novo statutory interpretation of section 8.1b of the Act.

Continental Tire, 2015 IL App (5th) 140445WC, ¶ 15.

In addressing this argument, the appellate court commented:

The language of section 8.1b(b) requires the Commission to consider a report prepared by a physician that includes an opinion concerning the level of the claimant's impairment. The record in the present case establishes that the Commission considered Dr. Brown's impairment report in determining the claimant's permanent partial disability. The Commission's consideration of this report complies with section 8.1b's requirements. The statute does not require the claimant to submit a written physician's report. It only requires that the Commission, in determining the level of the claimant's permanent partial disability, consider a report that complies with subsection (a), regardless of which party submitted it. In addition, section 8.1b does not specify the weight that the Commission must give to the physician's report. Instead, section 8.1b(b) states that "[n]o single enumerated factor shall be the sole determinant of disability." 820 ILCS 305/8.1b(b) (West 2012) (emphasis added).

Continental Tire, LLC, 2015 IL App (5th) 140445WC, ¶ 17.

Given this remark, the appellate court concluded, "nothing within the statutory language of section 8.1b requires the Commission to automatically adopt Dr. Brown's reported level of impairment merely because the parties submitted only one subsection (a) report." Continental Tire, 2015 IL App (5th) 140445WC, ¶ 18.

The court further stated, "[t]o the contrary, 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. Furthermore, it said, "[t]he Commission in the present case properly followed section 8.1b(b)'s requirement by weighing Dr. Brown's [AMA] report along with the other listed factors. Therefore, the Commission's award does not violate the language of the Act as a matter of law." Id.

Looking at the remaining factors, the appellate court held the Commission's decision was not against the manifest weight of the evidence. The court observed:

Under the manifest weight of the evidence standard, we must give proper deference to the weight that the Commission gave to each of the factors listed in section 8.1b(b). There was sufficient evidence to support the Commission's findings with respect to each of the factors, and nothing in the record indicates that it gave improper weight to any one factor. Therefore, we cannot reverse its finding that the claimant sustained permanent injuries to the extent of 5% loss of use of his left wrist under the manifest weight of the evidence standard.

The Commission outlined its findings on all of the factors listed within section 8.1b(b), including a finding that the claimant had some minor residual symptoms in his wrist, including occasional pain in his left hand and some problems with his wrist when he worked around the house, played golf, or lifted something heavy. In its analysis, the circuit court correctly concluded that the claimant's reported symptoms are corroborated by Dr. Brown's opinion that it is "not uncommon to have some residual soreness for a time after this."

Continental Tire, 2015 IL App (5th) 140445WC, ¶¶ 21-22.

The appellate court concluded that nothing in the claimant's testimony or medical evidence compelled the court to second-guess the Commission's factual findings with respect to the nature and extent of the claimant's disability.

Implications of the Decision

Continental Tire is the first appellate court decision to offer any insights into how the appellate court views section 8.1b. What is clear from the decision is that the Commission is free to award permanency even though the AMA report yields zero impairment, so long as the Commission discusses the remaining factors. The decision is not completely clear as to what level the Commission must explain its rational, although a reading of the case shows the Commission did not provide a great deal of analysis. Many of the factors "explained" were done so only generally and were based on subjective complaints of pain. Moreover, the Commission noted that the physician had admitted that the bone chip in the claimant's wrist had not reattached to the bone when he last saw him and that sometimes bone chips will not reattach. Yet there was no effort by the Commission to explain how this bone chip impacted permanency or justified a departure from the AMA zero impairment rating.

It is also clear that the Commission is not to give any one factor more precedence over the other factors when assessing disability under section 8.1b(b). The appellate court stated that "no single factor [is] the sole determinant of disability." Continental Tire, 2015 IL App (5th) 140455WC, ¶ 18.

What is not completely apparent from the decision, however, is who bears the burden of obtaining the AMA impairment rating report and the consequences of the claimant failing to obtain a report, where the employer does not obtain an AMA impairment rating report. While the court was not squarely asked to determine whether section 8.1b(a) required an AMA impairment report in all cases, at one point in the opinion, the court stated:

The statute does not require the claimant to submit a written physician's report. It only requires that the Commission, in determining the level of the claimant's permanent partial disability, consider a report that complies with subsection (a), regardless of which party submitted it. Id. ¶ 17.

Yet at another location the decision says that "[s]ection 8.1b(a) requires a licensed physician to prepare a permanent partial disability report setting out the level of the claimant's impairment in writing." Id. ¶ 10 (emphasis added). Moreover, at oral argument at least one justice commented, "[i]f your argument was there was no report at all, you would have an argument." (Oral argument recording, at 3:57). This seemed to be acknowledged by the claimant's counsel as well, when he stated the following:

Counsel: All I have to make sure is that it [the AMA impairment rating report] is in the record. So if they buy it [the employer obtains the AMA impairment report] and I put it in evidence, then I have satisfied my requirement that a physician's report with a level of impairment is in the record.

Court: Why would you want to put it in if it is zero?

Counsel: Because it is required by the statute that it be there.

(Oral argument recording, at 24:51).

Both questions – whether an AMA report is mandatory and who is obligated to produce it – are set for disposition by the appellate court in early-to-mid 2016 and we will keep you posted of those developments. Heyl Royster is defense counsel on that case. We will also keep you up to speed on all other developments regarding section 8.1b of the Act.