Gallianetti Makes Wage Differential Awards Easier to Prove - Back to Table of Contents - Back to WC Index
    By: Lori Poppe Hiltabrand (Springfield)

Wage differential awards are available to plaintiffs where they are unable to return to work at their former job and find work at another job, which pays less. Under  8(d)(1), such an employee shall receive compensation for the duration of his or her disability equal to 66 2/3 percent of the difference between the average award which he or she would be able to earn in full performance of his former occupation at the time of his or her accident and the average amount which he or she is earning or is able to earn in some suitable employment or business after the accident.

The decision of Gallianetti v. Industrial Comm’n, 315 Ill. App. 3d 721, 734 N.E.2d 482, 248 Ill. Dec. 554 (3d Dist. 2000), reh’g denied (Sept. 12, 2000), addresses wage differential awards and suggests that arbitrators must enter 8(d)(1) awards where proved; they cannot award a man-as-a-whole instead. Gallianetti puts a burden on the employer either to actually find employment within petitioner’s restrictions/earning capacity or to be prepared to challenge information regarding the petitioner’s job search. In the past, arbitrators have taken into consideration efforts made by petitioner to obtain alternate employment, and have traditionally required proof from petitioner as to his diligence in conducting a job search.

In Gallianetti, petitioner was a 41-year-old high school dropout, who was employed as a union spray and tree trimming laborer. Petitioner injured his elbow in 1992 and, as a result of those injuries, he went through extensive treatment to the left elbow including two surgeries which left him with permanent restrictions. An FCE indicated that he would be unable to return to his normal job duties as a tree trimmer and that he was best suited for a sedentary type job, which would not place any demands on his left upper extremity.

Petitioner testified that he contacted the local union approximately four times between 1994 and 1995 in an attempt to find work. He also contacted several employers in his area but was unable to obtain alternate employment. Petitioner again conducted a job search in 1996, but he was only qualified to work at positions paying minimum wage. Petitioner also contacted employers identified in a labor market survey prepared by respondent but was unable to obtain a position with any of those employers. He eventually obtained full-time employment at a garage earning $5.50 per hour. A business representative for the local union testified that while there were approximately 30 classifications of employment with the union, based upon the restrictions found in the functional capacity evaluation, the petitioner would be unable to perform duties within any of the job classifications for which he was qualified.

The arbitrator determined that petitioner’s condition was causally connected to his injury and awarded TTD benefits through January 9, 1996. The arbitrator entered an award for 60 percent loss of use of a man-as-a-whole. The Commission modified the arbitrator's TTD award but affirmed the arbitrator’s decision.

The appellate court held that an award for a percentage of a person as a whole is proper only in those cases in which “a claimant suffers injuries that partially incapacitate him from pursuing the usual and customary duties of his line of employment, but do not cause him to suffer an impairment of earning capacity.” 820 ILCS 305/8(d)(1). They further held the only time that such an award is proper where a claimant suffers an impairment of earning capacity is if the claimant waives his right to recover under section 8(d)(1). According to the appellate court, the word “shall” in section 8(d)(1) (dealing with wage differential awards) means that where a claimant proves he is entitled to a wage differential award, the Commission is without discretion to award a percentage of a person as a whole instead.

To qualify for a wage differential award under section 8(d)(1), the claimant must prove (1) partial incapacity which prevents him from pursuing his “usual and customary line of employment” and (2) an impairment of earnings. The appellate court found that petitioner presented enough evidence that he was unable to return to his “usual and customary line of employment” as a tree trimmer. Petitioner’s testimony was corroborated by that of his treating physicians who interpreted the functional capacity evaluation. Respondent argued that while it was clear the petitioner was making significantly less than he had been when he worked for respondent, his job search from the point where the doctor said he was at maximum medical improvement was minimal. Additionally, respondent argued that there was no documentation that prospective employers did not have work available within petitioner’s restrictions.

While there were 21 jobs within the petitioner’s area, only one firm had openings within the claimant’s restrictions stating that there is no affirmative requirement under section 8(d)(1) that a claimant even conduct a job search. The court held that a claimant need only demonstrate an impairment of earnings. The court went on to hold that evidence of a job search is but one way to show impairment of earnings. The appellate court also rejected respondent’s argument that because the claimant did not provide any documentation regarding his job search, he should be denied a wage differential award. The court held that while there was no physical documentation regarding the job search, petitioner was able to name all of the employers to which he applied and additionally, the name of the person with whom he spoke. Because there was no challenge to any of this information by respondent, the court found that petitioner provided sufficient evidence regarding the nature and extent of his job search.

We can expect petitioners’ attorneys to cite Gallianetti from the point that there is no requirement that a claimant conduct a job search, but only demonstrate an impairment of earnings. The language in this case will make cases with high-wage, low-education employees difficult to settle in that they are virtually guaranteed a wage differential. It may also force employers to conduct more extensive vocational rehabilitation in an effort to avoid an extensive wage differential award.

Slip and Fall Accidents in the Workplace - Back to Table of Contents - Back to WC Index
    By: Craig S. Young (Peoria)

Employee injuries caused by slip and fall accidents are common in the workplace. Recently, both the Industrial Commission and the appellate court have become unpredictable in their analysis as to whether or not such falls constitute accidents arising out of the petitioner’s employment. While some of these cases represent bad law for the employer and others are favorable, they all demonstrate the importance of conducting a good arising out of analysis on each and every slip and fall case.

In Illinois Consolidated Telephone Co. v. Industrial Comm’n, 314 Ill. App. 3d 347, 732 N.E.2d 49, 247 Ill. Dec. 333 (5th Dist. 2000), the court, citing the personal-comfort doctrine, went so far as to affirm an Industrial Commission decision that a petitioner’s fall while descending stairs to use the restroom was compensable, even though petitioner was not carrying anything and there was nothing defective with the stairs.

Just prior to the accident, petitioner had left her work area on the first floor to use the only women’s bathroom which was located on the second floor. On her way back down the stairs, which were the only means of access to and from the restroom, she fell on the landing of the stairway located midway from the top to the bottom. Petitioner did not know if she slipped on the last step before the landing or on the landing itself. Further, there was nothing out of the ordinary about the size or angle of the stairs. There were handrails along the stairs but not on the landing between the flights. The steps had rubber treads, although some may have been worn, and the landing consisted of waxed tile flooring. She did not see any liquid or anything else on the floor of the stairway before she fell. She also noticed nothing about her shoes which  contributed to the fall and has since worn the same shoes without any problem.

In affirming the Industrial Commission finding that the accident arose out of and in the course of petitioner’s employment, the court referenced the personal-comfort doctrine, which holds that an employee may do those things that are necessary to his or her health and comfort, even though personal to himself or herself, and such acts will be considered incidental to the employment. The court found nothing unusual or unreasonable in petitioner’s walking up to the second floor to use the restroom or in her descent back to her work area. In fact, the stairs were the only means of access to the restroom. Thus, the fact that she was not performing her actual job duties at the time of the accident did not foreclose her right to compensation. After noting that petitioner was on the employer’s premises at a time when she was engaged in her employment in a place were she had a right to be, the court found that she was exposed to a greater risk than the general public because she was continually forced to use stairs to seek personal comfort during her workday. The court also found that it would not have been unreasonable for the Industrial Commission to have inferred that the accident was attributable to worn stair treads, the lack of a handrail on the landing, or slipperiness of the landing itself. Hence, compensability of the petitioner’s fall was upheld.

In Knox County YMCA v. Industrial Comm’n, 311 Ill. App. 3d 880, 725 N.E.2d 759, 244 Ill. Dec. 286 (3d Dist. 2000), reh’g denied (Apr. 3, 2000), the court upheld the Industrial Commission’s finding that petitioner’s fall on stairs while leaving cardiopulmonary resuscitation (CPR) class arose out of and in the course of her employment. Petitioner was employed by the YMCA as a director of the PALS program, which required her to watch children of working parents during the day. On the day of the accident, the PALS program took place at a local school. Petitioner was scheduled to work the 3:00 p.m. to 6:00 p.m. shift and was also scheduled to attend a mandatory CPR class back at the YMCA beginning at 6:00 p.m. Since there was no time allotted between the end of her shift and the start of the CPR class, petitioner stopped at a restaurant and purchased a sandwich and soft drink. After restaurant and purchased a sandwich and soft drink. After attending ten minutes of the CPR class, which was held on the second floor, she was told she could leave. While descending the stairs to the first floor on her way out of the YMCA, she fell and was injured.

At the hearing, petitioner testified that the stairwell was well lit, had railings on both sides, and had runners on each stair, which were in good shape. At the time of her fall, she was wearing tennis shoes, carrying her soft drink in one hand and her purse in the other. She had purchased the soft drink for dinner and took her purse with her to hold paper and pen needed for the CPR class. In explaining her fall, she testified that she thought she had reached the bottom but in actuality had two more stairs to go before reaching the bottom. On cross-examination, she admitted, however, that she was familiar with the stairs, nothing about the stairs caused her to fall, and that the stairs were not defective.

In affirming the Industrial Commission’s reverse of the arbitrator’s denial of the claim, the court recognized that there was no evidence that the stairway was poorly lit, that the stairs were defective, or that the stairs in any way caused the fall. The court further acknowledged that, in and of itself, the act of descending a staircase at the employer’s place of business does not establish a risk greater than that faced by the general public. Neverthe-less, the court accepted the Industrial Commission’s finding that the presence of the soft drink in one hand and the purse in the other, both of which the petitioner would not have had absent the mandatory CPR class, increased the risk to the petitioner. In rejecting the respondent’s argument that there was no evidence that the presence of the soft drink and purse increased the risk of an accident occurring while descending stairs, the court found that the Industrial Commission could have inferred that the presence of the soft drink and purse blocked the petitioner’s view or caused the claimant to lose her balance, inducing the fall.

While the Illinois Consolidated Telephone Co. and Knox County YMCA cases are certainly not good law for employers, they should be viewed within the context of the appellate court’s reluctance to apply the manifest weight of the evidence standard to overturn an Industrial Commission decision.  I tried the Knox County YMCA case before the arbitrator and argued it in front of the Industrial Commission. The arbitrator found the claim not compensable, and the Industrial Commission reversed. At oral argument, it was clear the Commissioners had an agenda of finding the case compensable. At one point during the argument, one Commissioner even made the absurd statement that he believes all falls in the workplace should be held compensable. Ultimately, the Industrial Commission relied upon the slimmest of facts (the coke in the hand) to find compensability. They completely ignored the petitioner’s affirmative statement that the reason for her fall was the fact that she simply missed the last step. Rather than perform a traditional arising out of analysis, the appellate court simply refused to address the Industrial Commission’s decision finding that it was not against the manifest weight of the evidence.

Fortunately, the most recent decision from the appellate court addressing slip and fall injuries is much more favorable for respondents. In Wal-Mart, Inc. v. The Industrial Comm’n, et al.,   4-01-0037WC (4th Dist., Dec. 11, 2001), the court did find the Industrial Commission’s decision of compensability in a slip and fall case as against the manifest weight of the evidence. The case involved a situation in which the petitioner, Heather Parry, was leaving the Wal-Mart store for her meal break at approximately 3:00 p.m. The parking lot was covered with ice and snow due to a storm.  She slipped on the ice in the parking lot injuring her back. The facts at arbitration revealed that there was some dispute as to whether or not the petitioner actually fell in the parking lot or at her home. Taking the facts most favorable to the petitioner, the appellate court noted that the petitioner fell in the public parking lot that was used by both patrons and employees. While there was a portion of the parking lot in which the employees were encouraged to park, they were not required to park in that area. The petitioner had not driven herself to work on that day but had lent her car to her roommate. Her roommate had arrived at Wal-Mart to pick her up for the meal break and was picking the petitioner up in the area of the parking lot where the employees were asked to park.

Both the arbitrator and the Industrial Commission had found that the accident did arise out of the petitioner’s employment, and the appellate court reversed. The court appropriately applied traditional arising out of analysis and noted that for an accident to arise out of one’s employment, an injury must: (1) have an origin and some risk connected with or incidental to the employment; or (2) be caused by some risk to which the employee is exposed to a greater degree than the general public by virtue of the employment. The court noted that the evidence established that the entire Wal-Mart parking lot was available for use by both patrons and employees alike and that the fall, therefore, resulted from a hazard to which she and the general public were equally exposed. The court did not seem to be swayed by the fact that there was ice and snow on the parking lot and characterized this as a hazard to which both employees and the general public were equally exposed.

The court’s decision in the Wal-Mart case is significant because of its strong reliance upon the arising out of analysis in finding the fall noncompensable. While the court did not specifically reverse the Illinois Consolidated Telephone Co. or Knox County YMCA cases, it also did not avoid the issue based upon a manifest weight of the evidence argument. The Wal-Mart case represents solid authority for denying slip and fall cases on company premises if there is an argument that the risk was one to which the general public is exposed and one which is not peculiar to the petitioner’s employment. The court’s characterization of ice and snow as a risk to which the general public is exposed is also significant.

It is certain that petitioners’ attorneys will use the Illinois Consolidated Telephone Co. and Knox County YMCA cases to argue that virtually any fall on the company premises should be compensable. The more recent Wal-Mart case, however, makes it clear this is not correct. Every case should be analyzed on a case-by-case basis, and the decision to accept or deny a slip and fall case in the workplace should involve an analysis of whether or not the petitioner was involved in a risk peculiar to her employment. Claims based on facts identical to those presented in the Illinois Consolidated Telephone Co. and Knox County YMCA cases should be denied. The Wal-Mart case is solid recent authority to affirm that petitioners must still prove that their fall arises out of the employment.

CASE LAW UPDATE - Back to Table of Contents - Back to WC Index

These represent some of the more significant decisions of the Illinois Supreme Court, the Apellate Court, Industrial Commission Division, and the Industrial Commission, over the past quarter.

Step Ladder - Back to Table of Contents - Back to WC Index

Cook County Dept. of Public Health v. Industrial Comm'n., and Floressa Bershadsky, Ill. Cir. Court Cook County, No. 99 L 51230 (Oct. 11, 2000) - Petitioner's fall off a stepladder while reaching for paper cups while working as a dental assistant held compensable. Her duties were not risks common to the general public. Claimant's duties were peculiar to her employment.

Allergic Reaction Not Compensable - Back to Table of Contents - Back to WC Index

Rodin v. Industrial Comm’n., 316 Ill. App. 3d 1224, 738 N.E.2d 955, 250 Ill. Dec. 486 (1st  Dist., Sept. 28, 2000) – Petitioner’s injuries due to an allergic reaction to food consumed at a work luncheon held not compensable. The risk petitioner might have an allergic reaction to food containing preservatives was unrelated to petitioner’s employment. He would have been equally exposed to such risk apart from work.

Compensable Assault Claim - Back to Table of Contents - Back to WC Index

Bulatovic v. Global Protection Associates, Ill. Ind. Comm’n., Nos. 95 WC 68426, 00 IIC 0662 (Sept. 5, 2000) – The Industrial Commission found petitioner’s injuries which were sustained while working as a security guard were compensable. He was placed in a position of increased risk of being a victim of criminal conduct by the nature of his employment. He was required to be in a high crime area throughout the day. This distinguished his risk from the risk of being a victim of criminal conduct common to the public.

Parking Lot Fall Denied - Back to Table of Contents - Back to WC Index

Kreis v. Advocate Home Health, Ill. Ind. Comm’n., Nos. 96 WC 54332, 00 IIC 0737 (Oct. 31, 2000) – The Industrial Commission denied petitioner’s claim for benefits where she fell in front of respondent’s business in a strip mall parking lot. Respondent did not own or control the lot. The Commission found petitioner’s employment did not increase her risk of injury. Petitioner was a nurse receptionist who injured her left arm when she slipped and fell on ice and snow after she had finished her work for the day and was cleaning off the windows of her van.

CALCULATION OF AVERAGE WEEKLY WAGE- Back to Table of Contents

Casual/Temporary Employee Calculation - Back to Table of Contents - Back to WC Index

Maloney v. Metropolitan Pier and Exposition Authority, Ill. Cir. Ct. Cook County, No. 99 L 50850 (Aug. 9, 2000) – The Commission properly calculated petitioner’s wage for 14 days worked over a five week period by dividing the total wages by five weeks rather than two and four-fifths weeks. Petitioner was not a full-time employee and worked for several different employers before and after his injury and was considered a casual or temporary employee. Claimant’s request that his wage be calculated at the number of hours times his hourly rate was excessive and would result in a windfall.

Wage Calculation Windfall - Back to Table of Contents - Back to WC Index

Sylvester v. Industrial Comm’n., 314 Ill. App. 3d 1100, 732 N.E.2d 751, 247 Ill. Dec. 696 (4th Dist., June 28, 2000), appeal granted, 192 Ill. 2d 710 (Ill. Nov. 29, 2000) – The appellate court reversed a circuit court affirmance of the Industrial Commission’s calculation of wage and determined petitioner’s average wage was to be calculated by dividing the earnings by the number of weeks and parts remaining after time lost had been deducted. The evidence indicated the petitioner lost four weeks of work in the 52 week period prior to the injury, and that this loss of time was not due to the fault of the petitioner who only worked for the respondent and was on call to work at all times by the respondent and never refused work when called. Respondent argued claimant would receive a windfall. The court agreed its decision provided claimant with an income higher than what he actually earned prior to the injury. The court held this did not provide him with a windfall.

8(a) MEDICAL EXPENSE CASES - Back to Table of Contents

Reopening a Case Ten Years Later Under Section 8(a) Upheld - Back to Table of Contents - Back to WC Index

Harris v. Thunderbird Motor Freight, Ill. Ind. Comm’n., No. 84 WC 81392, 00 IIC 0659 (Aug. 31, 2000) – The Commission held the 30-month limitation set forth in section 19(h) did not apply to 8(a) medical expenses. An employer’s liability under section 8(a) continues as long as it is necessary to relieve the effects of the industrial injury. The burden of establishing causal relationship remains with the petitioner.

Heart Attack and Death Causally Connected to Fire - Back to Table of Contents - Back to WC Index

In Ford Motor Co. v. Industrial Comm’n, 319 Ill. App. 3d 1099, 745 N.E.2d 725, 253 Ill. Dec. 602 (1st Dist. 2001), a worker at the Ford Motor Company attempted to put out a fire that broke out in the plant with a co-worker. Neither were wearing protective masks during the approximately 30 minutes that the fire lasted. Significant smoke was emitted by the fire as well as burnt substances filling the air. After the fire was extinguished, decedent returned to his shift. Later that evening, the decedent began to experience significant breathing difficulty. The following day he went to the hospital complaining of chest pain and abdominal discomfort. The decedent was treated, released, but returned to the hospital four days later where he suffered a massive heart attack and died. The death certificate listed the cause of death as cardiac arrest. However, an expert testifying for the decedent, stated that the inhalation of fumes at work coupled with the decedent’s history of smoking and diabetes weakened his resistance to infection. The cardiac manifestations were due to the severe lung problems and lowered oxygen levels. The appellate court affirmed the Commission’s decision that the death was compensable finding that the decedent’s exposure to smoke and fumes aggravated his underlying preexisting condition.

Gratuitous Volunteer Not An Employee Under the Act - Back to Table of Contents - Back to WC Index

In Pearson v. Industrial Comm’n, 318 Ill. App. 3d 932, 743 N.E.2d 685, 252 Ill. Dec. 817 (3d Dist. 2001), appeal denied, 195 Ill. 2d 555 (2001),  petitioner filed a claim against the Township Fire Protection District alleging injuries he purportedly sustained while serving as a volunteer fireman. Petitioner did, in fact, serve as a volunteer fireman but was terminated for failing to attend meetings. The petitioner observed a field fire subsequent to his termination from the volunteer fire department and volunteered to assist the fireman put out the fire. He directed fireman to a gate where they could gain access to the field. Although he was not requested to provide assistance, petitioner volunteered to get his tractor and disk to help put out the fire and was told by the Assistant Fire Chief that his assistance would be appreciated. After being directed to drive around the fire with his tractor and disk to prevent further spreading, petitioner drove his tractor into a deep washout in the field and was injured. Petitioner admitted that he had no expectation of compensation for his efforts, but he believed that he had been requested to help and that he did so out of concern for his neighbors. He asserted an emergency doctrine, where a quasi contract for employment arises when the claimant risks his or her life to protect the lives and health of others. The Commission denied compensability, and the appellate court affirmed finding that Illinois has yet to adopt the emergency doctrine, and even if it had, the case involved only the protection of crops, not human life. The court further pointed out that an employer/employee relationship did not exist in the absence of payment or expected payment of consideration by the employer to the employee. The court determined that petitioner’s actions were purely gratuitous and compensation was, therefore, denied.

STEWARDESS STRESS CASE COMPENSABLE - Back to Table of Contents

Appellate Court Requires Penalties for Denial by Respondent - Back to Table of Contents - Back to WC Index

In Matlock v. Industrial Comm’n, 321 Ill. App. 3d 167, 746 N.E.2d 751, 253 Ill. Dec. 930 (1st Dist. 2001), reh’g denied (Apr. 24, 2001), the appellate court upheld an award of penalties and attorneys’ fees finding that the employer’s refusal to pay workers’ compensation benefits was unreasonable. There, the claimant was a flight attendant who was allegedly traumatized by an encounter with an unruly passenger, during which she was exposed to poison gas. She required medical treatment and continued counseling for which her employer resisted paying. The court found that the claimant met her burden of establishing work-related psychological injury under the Workers’ Compensation Act under both a physical-mental theory, because of the gas exposure and a mental-mental theory, and because of the trauma of trying to maintain a safe environment during a Trans Atlantic flight. The court found that the employer had no reasonable basis to contest its liability and unreasonably delayed in paying benefits. The employer’s expert, a clinical psychologist, disagreed with the diagnosis of post-traumatic stress disorder and concluded that claimant’s problems stemmed more from her anger at the employer. He did not release the claimant to return to work, however, and found her to still be in need of psychotherapy. He diagnosed claimant as suffering from adjustment disorder with anxiety. The unreasonable delay in paying benefits determined by the appellate court is based on the fact that the occurrence took place in November 1997. The employer was aware of the occurrence and sent the claimant for counseling but did not attempt to obtain a medical evaluation to controvert the findings of the doctors until March of 1998. The employer refused to pay for further treatment after three sessions even though the employer’s counselor felt the claimant was in need of continued psychotherapy. Given the totality of the circumstances in that case, the employer’s conduct was determined to be unreasonable.

In Insulated Panel v. Industrial Comm’n, 318 Ill. App. 3d 100, 743 N.E.2d 1038, 252 Ill. Dec. 882 (2d Dist. 2001), the appellate court affirmed the award of benefits to an employee engaged in recreational activity while in Hawaii on business. While on business in Hawaii to install an industrial freezer, the claimant and two other co-workers were walking toward a lagoon in an unrestricted area, walking on lava rocks that formed the coastline. As the lava rocks became larger as the claimant walked on the coast, he had to jump between the rocks, thereby increasing the hazard. At one point, the lava rocks upon which the claimant stepped gave way, and he fell approximately 20 feet. The court found that even though the recreational activities of this traveling employee fell outside the scope of employment, any injuries incurred during those activities are compensable under the during those activities are compensable under the Workers’ Compensation Act as long as the recreational activity and the employee’s conduct were reasonable and foreseeable.

Injury on Permanently Moored Riverboat Casino Not Covered Under the Jones Act - Back to Table of Contents - Back to WC Index

In Lance Grobe v. Hollywood Casino – Aurora, Inc., 2-00-1268 (2d Dist., Nov. 2, 2001), petitioner was injured on a riverboat casino located on the Fox River in Aurora. He filed a Jones Act claim against the casino which the trial court dismissed with prejudice. The appellate court affirmed the dismissal. It noted that the general purpose of the Jones Act is to provide heightened legal protection to seamen injured in the course of employment because seamen are exposed to the “peril of the sea.” To qualify as a seaman under the Jones Act, a maritime employee must have a substantial employment related connection to a vessel “in navigation.” Since at the time of the plaintiff’s injury, the defendant had no intention to resume cruising, and the defendant’s casinos had been permanently withdrawn from navigation for almost two months, the claim did not warrant protection under the Jones Act. Thus, the case would be adjudicated under the Illinois Workers’ Compensation Act.

We recommend the entire opinion be read and counsel consulted concerning the effect these decisions may have upon your claims.