Section 8(d)(1) Wage Loss Is Not Automatic - Back to Table of Contents - Back to WC Index
By: Kevin J. Luther, Rockford

Employers’ attorneys in workers’ compensation claims have been engaged in an uphill battle following the appellate court decision of Gallianetti v. Industrial Comm’n (Asplundh Tree Expert Co.), 315 Ill. App. 3d 721, 734 N.E.2d 482, 248 Ill. Dec. 554 (3d Dist. 2000). In Gallianetti, the appellate court concluded that section 8(d) of the Illinois Workers’ Compensation Act precluded an award based on percentage of person as a whole where the claimant presented sufficient evidence to show a loss of earning capacity. 315 Ill. App. 3d at 728. To qualify for a section 8(d)(1) wage differential award, the claimant must prove (1) partial incapacity that prevents him or her from pursuing his usual and customary line of employment, and (2) impairment of earnings. Gallianetti, 315 Ill. App. 3d at 730. Many petitioner’s attorneys and some arbitrators interpreted Gallianetti to automatically require a section 8(d)(1) award when there is some evidence of diminution in earnings.

In Pietrzak v. Industrial Comm’n (Landair Trans., Inc.), 329 Ill. App. 3d 828, 769 N.E.2d 66, 263 Ill. Dec. 864 (2002), the employee was released to return to work, but was restricted to light duty work. The petitioner’s earnings prior to the occurrence were $1,083.36 per week. Following the injury, the employer sold the company, and the new owner of the respondent did not have work for the employee within his restrictions. Subsequently, the employee secured employment as a terminal manager elsewhere earning $650.00 per week. The employer presented testimony from a vocational expert who testified that the employee was capable of earning, even with his restrictions, $35,000.00 to $50,000.00 in the transportation industry.

In Pietrzak, the arbitrator entered a wage loss differential award pursuant to section 8(d)(1). On a review before the Industrial Commission, the Industrial Commission reversed the decision of the arbitrator and found that the petitioner was entitled to a section 8(d)(2) award in the amount of 20 percent of loss of use of a person. The appellate court noted that there was ample evidence to establish a section 8(d)(2) award and that the case involved only an issue of manifest weight. The issue of permanency is a question of fact for the Industrial Commission to resolve. To distinguish Gallianetti, the appellate court noted that although the claimant testified that he still had symptoms, there was no evidence, even with his restrictions, that he was incapable of performing management duties in the transportation industry. Accordingly, the appellate court felt that there was ample evidence for the Industrial Commission to determine that the petitioner did not establish a wage differential award pursuant to section 8(d)(1).

In the face of increasing demands by petitioners’ attorneys for section 8(d)(1) wage differential claims in light of Gallianetti, the Pietrzak decision is a breath of fresh air. Section 8(d)(1) awards are not automatic merely because the claimant suffered a diminution in earning. These types of claims are to be reviewed on a case by case basis. Certainly, one cannot rely on the fact that the petitioner did not conduct a job search as set forth in Gallianetti. Rather, it would appear that most claims will need to be defended with the testimony of a qualified vocational expert who will be able to credibly establish that the petitioner’s earning capacity is not diminished, notwithstanding permanent restrictions from the work-related injury.

Heart Attack Resulting From Gastrointestinal Tract Bleeding Found Compensable in “Mental-Physical” Injury - Back to Table of Contents - Back to WC Index
By: Kevin J. Luther, Rockford

In Baggett v. Industrial Comm’n (Marion Cmty. Sch. Dist. No. 2), 201 Ill. 2d 187, 775 N.E.2d 908, 266 Ill. Dec. 836 (2002), the Supreme Court of Illinois considered a “mental-physical” stress claim. It is arguable that this decision reversed a line of cases which required the claimant to compare his or her stress exposure to that of other co-workers in mental-physical stress claims. This decision provides that the standard now requires a comparison of the employee to other members of the public, as opposed to co-workers in this type of stress claim.

The employee was a high school industrial arts teacher who collapsed at work. The testimony of the co-workers was that the claimant was required to do a full-day’s work in half days, and was five weeks behind his schedule. His industrial arts students required close supervision because of hazardous construction conditions, such as the use of scaffolds and other power tools. The respondent provided testimony that the employee was not working under any significant different type of stress than other teachers, and that he was involved in substantial non-school activity which contributed to his overall stress level.

A treating cardiologist testified that the employee’s heart attack was caused by blood loss resulting from a peptic ulcer. A gastroenterologist who examined the claimant after his collapse concluded that stress can be a causative factor in the bleeding resulting from the peptic ulcer, but that bleeding could also have been caused by other factors. A total of five doctors provided varying medical testimony as to whether or not stress caused the claimant’s injury. Based on this testimony, the arbitrator found the case compensable but the Industrial Commission reversed. The circuit court reversed and reinstated the arbitrator’s findings of compensability, but the appellate court reversed the circuit court, finding that the claim was not compensable. The Supreme Court of Illinois found that the special workers’ compensation appellate court had misunderstood the law and found the claim to be compensable.

The Supreme Court noted that the case involved a physical injury allegedly induced by mental stress in the workplace. This type of injury is commonly described as a “mental-physical” injury. The Supreme Court focused on two prior Supreme Court decisions, both of which were 25 years old. The Supreme Court cited its decisions of County of Cook v. Industrial Comm’n, 69 Ill. 2d 10, 70 N.E.2d 520, 12 Ill. Dec. 716, 3 (1977) and Wirth v. Industrial Comm’n, 57 Ill. 2d 475, 312 N.E.2d 593 (1974). It determined that each of these decisions confirms that the test for stress is whether working conditions exposed the worker to a risk greater than those facing the general public. The Supreme Court refused to accept the respondent’s argument that a claimant in a mental-physical stress claim must show a stress greater than that of their co-workers. Baggett, 266 Ill. Dec. at 842. In reviewing the facts of the case, the Supreme Court noted that the claimant’s stress was different than the stress generally experienced by the general public. It identified factors such as continuing stress during a period of time, stress as a result of completion deadlines, and the fact that the claimant’s students were inclined to horseplay and the claimant’s disciplinary duties further interfered with completing the course deadlines.

The Supreme Court also addressed a “causation” issue raised by the parties. The Industrial Commission noted that the claimant failed to show “any scientific correlation between the stress and the gastrointestinal bleeding.” The claimant’s attorney argued that the Commission used the term “scientific correlation” to describe a burden of proof. The Supreme Court noted that the claimant was not required to provide “conclusive” proof that stress was the causing factor of his bleeding. Instead, the employee must show that it was more probably true than not true that (1) he had an ulcer, and (2) that his ulcer was aggravated by the stress of his employment. In reviewing the medical testimony, the Supreme Court concluded that there was evidence to establish that work-related pressures caused stress which affected his ulcer which led to the claimant’s collapse at work.

In conclusion, the Supreme Court held that a claimant need not prove increased or unusual stress at the time of the injury, nor must a claimant demonstrate a sole, strict, scientific correlation between stress and a physical injury.

An Aggravation of a Pre-Existing Condition Is Not Compensable If the Condition of Ill-Being Could Have Been Caused by Normal Daily Activity - Back to Table of Contents - Back to WC Index
By: John D. Flodstrom, Urbana

Illinois employers have had a long standing struggle in defending claims involving aggravations of pre-existing conditions. Employers have been told that they must take their employees as they find them, even if the employee is the classic eggshell claimant who could be injured from virtually any type of activity. A recent appellate court decision, Sisbro, Inc. v. Industrial Comm’n, 327 Ill. App. 3d 868, 764 N.E.2d 1163, 262 Ill. Dec. 46 (4th Dist. 2002), provides employers with some assistance in this troublesome area of workers’ compensation law.

The petitioner in Sisbro fit the definition of an eggshell claimant. He had a pre-existing condition of diabetes, including an extensive history of problems with both feet. He suffered from diabetic neuropathy, a condition that interferes with the nervous system in the extremities and can lead to significant orthopedic problems.

The petitioner alleged that he twisted his right ankle when he stepped into a pothole as he was getting out of a delivery truck. Within a few months of the ankle injury, the petitioner was diagnosed with acute diabetic Charcot osteoarthropathy, which, in lay terms, means that he had a breakdown and collapse of the bones in his foot and ankle. The petitioner’s treating podiatrist testified that it was his opinion that the petitioner’s foot problems were related to the alleged work injury. There was also evidence that the pre-existing condition in the petitioner’s right foot was such that virtually any type of trauma could have caused the collapse.

The arbitrator concluded that the petitioner’s condition of Charcot arthropathy was causally related to the work injury and awarded benefits. The decision was affirmed by the Industrial Commission and the circuit court. On appeal, the appellate court reversed the decision and held that the petitioner did not have a compensable claim.

In reaching its holding, the appellate court acknowledged the general rule of law that a claim is compensable if there is evidence that a work accident aggravated or accelerated a pre-existing condition. There was no question the incident where the petitioner twisted his ankle while stepping in the pothole aggravated the pre-existing condition in the petitioner’s right foot. However, the appellate court went on to say that “a claimant is not entitled to compensation, regardless of whether his condition of ill- being was caused by work-related aggravation of a pre-existing condition, if his physical condition has so deteriorated that his condition of ill-being could have been produced by normal daily activity.” 764 N.E.2d at 1168. Since there was evidence in the record that virtually any activity could have brought on the petitioner’s Charcot arthropathy, the claim was denied. The petitioner’s own treating podiatrist testified that the petitioner could have developed Charcot arthropathy from normal, routine events, such as stepping off a curb or walking on an uneven surface.

The Sisbro decision does not affect any cases where a unique or significant work activity either causes a new condition or aggravates a pre-existing condition. It does offer help in situations where the employee is engaged in a normal daily activity.

It remains to be seen whether the Sisbro opinion will survive. The decision was appealed to the Illinois Supreme Court, and a ruling is expected later this year.

Vocational Rehabilitation: Uncertain Procedures In Uncertain Times - Back to Table of Contents - Back to WC Index
By: Daniel R. Simmons, Springfield

Proper procedure in cases where vocational rehabilitation is an issue is uncertain at best following a series of Industrial Commission decisions during the past year. The decisions are an outgrowth of the appellate court holding in Freeman United Coal confirming that temporary total disability and maintenance are separate and distinct benefits. A petitioner’s right to temporary total disability ends at the point where the petitioner reaches a level of maximum medical improvement. A petitioner may thereafter be entitled to maintenance benefits during a period of vocational rehabilitation. The Industrial Commission cases addressing fact patterns following Freeman show that there is a sharp division of opinion on what must be shown by the petitioner in order to be entitled to maintenance benefits and a program of vocational rehabilitation.

Some commissioners take what might be called a strict constructionist view on the ability of a petitioner to obtain vocational rehabilitation. Those commissioners find that, if a petitioner is in a position of having decreased earning power as a result of the work-related injuries, the petitioner has an affirmative obligation to ask the respondent to provide vocational rehabilitation services. If the respondent agrees with the petitioner’s request, a vocational rehabilitation plan should be framed according to Industrial Commission Rule 7110 on the Commission form and should be approved by the Industrial Commission. The respondent then proceeds to pay the petitioner maintenance benefits while the petitioner goes through the prescribed vocational rehabilitation program. If the respondent declines the petitioner’s request for vocational rehabilitation, the petitioner is obligated to present his case to the arbitrator for relief. It is up to the arbitrator at the hearing on the request for vocational rehabilitation and maintenance to determine if the petitioner is entitled to the program and, if so, to approve a vocational rehabilitation plan and to award appropriate maintenance. This view takes the position that there is no option for the petitioner to engage in a self-directed job search. While it is true that a petitioner is not prohibited from doing a self-directed job search, maintenance benefits are not available because previous Illinois Appellate Court cases have ruled that maintenance benefits are available only when the petitioner is in a prescribed vocational rehabilitation program. If the petitioner performs a self-directed job search and secures alternative employment, any request for an award of vocational rehabilitation and maintenance benefits at arbitration is waived because the petitioner did not follow the procedure of taking the denial of vocational rehabilitation to the arbitrator for resolution.

Other commissioners take a more liberal view of vocational rehabilitation availability. First, these commissioners do not agree with the holding in Freeman United Coal that temporary total disability rights necessarily end at the point where the petitioner reaches maximum medical improvement. They believe that the holding in Freeman United Coal is at odds with the Supreme Court ruling in National Tea and that a petitioner may be entitled to temporary total disability even after reaching maximum medical improvement. This view further disagrees with the contention that the petitioner has the initial obligation to request vocational rehabilitation. The employer is seen as having an affirmative obligation to provide vocational rehabilitation under Industrial Commission Rule 7110 if it is clear that the petitioner is not going to be able to return to his former job or has been off work for 120 consecutive days. If the employer refuses to comply with Rule 7110 and does not provide vocational rehabilitation services, the petitioner is recognized to have a right to perform a self-directed job search and receive maintenance benefits during the job search because the employer did not honor its obligation under the rule. This view also does not subscribe to the theory that the petitioner waives any claim for maintenance by not first presenting the request for vocational rehabilitation benefits to the arbitrator for decision. Finally, the commissioners advocating this view have held that a petitioner may be entitled to additional vocational rehabilitation and maintenance benefits, even if the petitioner successfully found work as a result of the self-directed job search.

One or more of the Industrial Commission decisions likely will reach the appellate court level for review. The eventual outcome of these cases will have no impact on cases where there is no question that the petitioner is entitled to vocational rehabilitation and maintenance. The problem arises where there is a dispute between the petitioner and the respondent concerning whether vocational rehabilitation and maintenance are appropriate. Given the unsettled nature of the law concerning proper procedure for obtaining vocational rehabilitation, consultation with counsel is recommended in situations where there is a dispute over whether the petitioner is entitled to vocational rehabilitation and maintenance so that a proper response to the petitioner’s request may be crafted.

Should you care to read the debate at the Industrial Commission level on this issue, please read Whennen v. Industrial Comm’n, (Flora Healthcare Center, respondent), 02 IIC 54 (January 25, 2002); Koch v. Industrial Comm’n, (City of Sycamore, respondent), 02 IIC 453 (June 6, 2002); and Grabis v. Industrial Comm’n, (Roper Contracting, respondent), 02 IIC 927 (December 27, 2002). If you do not have access to Industrial Commission decisions, please contact any of our firm’s workers’ compensation attorneys, and we will be happy to provide the decisions to you for review.

Case Law Update - Back to Table of Contents - Back to WC Index
By: James M. Voelker, Peoria

These represent some of the more significant decisions of the Illinois Supreme Court, the Appellate Court, Industrial Commission Division, and the Industrial Commission during the second half of 2002 and first three months of 2003.

Termination of TTD Based On Skipped IME Not Proper Where Insufficient Expenses Advanced - Back to Table of Contents - Back to WC Index

Anders v. Industrial Comm’n (OTR), 332 Ill. App. 3d 501, 773 N.E.2d 746, 266 Ill. Dec. 11 (4th Dist. July 2002). The Industrial Commission’s award of TTD and penalties was affirmed, despite the fact that claimant missed a section 12 independent medical exam. The expenses advanced were insufficient to defray the cost of travel to the exam and the claimant never received the train ticket sent by the employer. Thus, TTD was properly awarded and penalties were appropriate.

Industrial Commission Has No Jurisdiction to Pierce Corporate Veil - Back to Table of Contents - Back to WC Index

JMH Props. v. Industrial Comm’n (May), 332 Ill. App. 3d 831, 773 N.E.2d 736, 266 Ill. Dec. 1 (4th Dist. July 2002). Claimant filed two applications for adjustment of claim following an incident in which he was electrocuted while at work. One was against his employer, and the other was against the principal stockholder of the employer. Following a hearing, an arbitrator denied the claim against the principal stockholder but awarded benefits against the employer. Neither of those decisions was appealed. Claimant then filed in circuit court for a judgment on the award against the employer and a second count against the principal stockholder trying to pierce the corporate veil. Judgment was entered against the employer, but the claim against the principal stockholder was dismissed. The dismissal was not appealed. Claimant then sought relief at the Industrial Commission to pierce the corporate veil. The arbitrator found against the principal stockholder and pierced the corporate veil. The Industrial Commission affirmed. The appellate court reversed, finding that the Industrial Commission had no jurisdiction to pierce the corporate veil. It noted that the Industrial Commission, as an administrative agency, has no general or common law powers. The only powers it possesses are those granted to it by the legislature, and any action it takes must be specifically authorized by the legislature. To the extent that an agency acts outside its statutory authority, it is without jurisdiction. Piercing the corporate veil is an equitable remedy, and thus, beyond the jurisdiction of the Industrial Commission.

Spoliation Claim Not Barred By Exclusivity Provision of Act - Back to Table of Contents - Back to WC Index

Schusse v. Pace Suburban Bus Div. of the Reg’l Transp. Auth., 334 Ill. App. 3d 960, 779 N.E.2d 259, 268 Ill. Dec. 645 (1st Dist. August 2002). Plaintiff, an employee of defendant, was driving a Pace bus when the driver’s seat collapsed, allegedly causing a spinal cord injury to plaintiff. Plaintiff made a statement regarding his injury in a workers’ compensation form and submitted the statement to Pace. Plaintiff applied for workers’ compensation benefits. Defendant replaced the suspension system for the driver’s seat in the bus at issue in October 1990 and apparently destroyed the original seat. Plaintiff filed claims against the manufacturer of the seat and also filed a spoliation of evidence claim against his employer. The circuit court granted the employer’s section 2-619 motion to dismiss under the exclusivity provision of the Act. The appellate court reversed. It held that the spoliation claim did not arise out of and in the course of plaintiff’s employment with defendant and, therefore, was not barred by the exclusivity provision of the Act.

Exclusivity Provision of the Act Not Applicable to Injuries of Former Employees - Back to Table of Contents - Back to WC Index

Hunter v. Southworth Prods. Corp., 333 Ill. App. 3d 158, 775 N.E.2d 238, 266 Ill. Dec. 676 (4th Dist. August 2002). Decedent was employed by Exxon Mobil at the time it installed and modified a lift table in its plant. Subsequently, Exxon Mobil sold the plant to Tenneco who continued to use the lift table. Decedent was killed when the lift table fell on him while he was employed by Tenneco. Exxon Mobil asserted the exclusivity provisions of the Act as a bar to a third-party complaint filed against it. The issue was certified on appeal. The appellate court rejected the holding of an Oregon court that applied the exclusivity provisions to such facts. The appellate court distinguished the language of the Illinois Workers’ Compensation Act and held that Exxon Mobil was not entitled to the protection of the exclusivity provision of the Act because the Act defines “employer” and “employee” and authorizes recovery under the Act for injuries incurred when the employee is engaged in the line of duty as an employee. It was undisputed that Exxon Mobil was not the employer at the time of injury.

Concurrent Jurisdiction Exists Under Illinois Workers’ Compensation Act and Longshore and Harbor Workers’ Compensation Act for Land Based Injuries - Back to Table of Contents - Back to WC Index

McCoy v. Industrial Comm’n (Ceres Terminals, Inc.), 335 Ill. App. 3d 723,781 N.E.2d 365, 269 Ill. Dec. 568 (1st Dist. September 2002). Decedent was working on a dock untying the ropes of a ship that was about to leave shore. As he was attempting to untangle the ropes, members of the ship’s crew began to pull in the ropes. The decedent slipped and fell into the water, where he subsequently drowned. The Industrial Commission held that the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. §901 et seq. (1998)) provided the exclusive source of jurisdiction over the claim and denied the claim. The appellate court reversed. Under the Jensen doctrine, if the injury occurred on navigable water while the decedent was performing traditionally maritime functions, then the Commission does not have jurisdiction over the claims. If, however, the injury occurred on the dock rather than on the water, the Commission has jurisdiction. Applying the reasoning of the Supreme Court in Taylor and Minnie, the appellate court held that the decedent’s slip on the dock gave rise to his claim for benefits. Since this act took place on land, his injury was land based, and the Industrial Commission has concurrent jurisdiction with the Federal Act.

Injury While Playing Basketball at Company Picnic Compensable - Back to Table of Contents - Back to WC Index

Woodrum v. Industrial Comm’n (Bunn-O-Matic), 783 N.E.2d 1072, 270 Ill. Dec. 772 (4th Dist. January 2003). Claimant sustained an injury while playing basketball at a company picnic. The Industrial Commission found that claimant’s injury did not arise out of and in the course of his employment and denied benefits. It reasoned that claimant’s decision to play basketball while at the picnic was voluntary, and thus, his injuries were not compensable. The appellate court reversed. It held that the pivotal issue, which determines whether a recreational activity is within the coverage of the Act, is whether the employee is “ordered or assigned” to participate in the activity as stated in section 11 of the Act. In this case, claimant had the choice to either attend the picnic, take a personal/vacation day, or go without pay. The court held that as a matter of law where an employee must either go without pay or give up personal/vacation time in order to opt out of attending a company picnic, the only inference that can be drawn is that the employee was ordered or assigned the task of attending the picnic that day. It was as if the claimant’s job assignment for that day was to attend the picnic. Just as on any normal workday, claimant had a choice. He could either report to his assigned duties for the day, or if he did not wish to work that day, he could take a personal/vacation day to receive pay for that day, or he could receive no pay for that day. Thus, claimant fell under section 11 of the Act, and the injury was compensable.

Last Employer Liable for Entire Hearing Loss Under Occupational Disease Act - Back to Table of Contents - Back to WC Index

Hamilton v. Industrial Comm’n, 2003 Ill. LEXIS 18. Petitioner worked for American Can from 1970 to 1995 and was exposed to excessive levels of noise. American Can was sold to Silgan Container Corporation in 1995, and petitioner continued his work at the same facility and experienced additional noise exposure. The arbitrator found the hearing loss compensable and allocated the loss between the two employers. The Supreme Court held that such an allocation is contrary to section 1(d) of the Workers’ Occupational Diseases Act which provides: “The employer liable for the compensation in this Act provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease claimed upon regardless of the length of time of such last exposure ***.” Thus, the last employer was responsible for the entire loss even though most of the exposure and hearing loss was attributed to the first employer.

Juror Is Not an Employee of the State Under the Act - Back to Table of Contents - Back to WC Index

Jaskoviak v. Industrial Comm’n, 2003 Ill. App. LEXIS 255 (3d Dist. February 2003). Claimant received a jury summons from Will County and reported to respondent as directed. She later received a $7 check from respondent. On her questionnaire, claimant indicated her occupation was teacher and identified the school district for which she worked. On June 13, 1994, while being escorted with a group of jurors to a jury holding area, claimant lost her footing on a stairway and was injured. She then filed a claim under the Illinois Workers’ Compensation Act against Will County alleging that she was an employee. The Industrial Commission denied compensability, and the appellate court affirmed. It held that absent a contract for hire, either express or implied, there can be no liability under the Act. In this case there was no employment agreement evidenced by an offer on the part of the county or state to employ claimant and no acceptance by claimant. Claimant had no choice to accept or decline jury duty, and issuing a jury summons is not an “offer.” Thus, no employment relationship existed. Justice Goldenhersh dissented. He opined that section 1(b)(1) of the Act defines an “employee” as “[e]very person in the service of the State . . .” which required claimant to be considered an employee of Will County.

Prior 19(b) Determination On Causation Is Binding On Subsequent Decisions as “Law of the Case” - Back to Table of Contents - Back to WC Index

Irizarry v. Industrial Comm’n (Dynaweld, Inc.), 2003 Ill. App. LEXIS 271 (2d Dist. February 2003). Claimant sought benefits for injuries to his leg, head, neck, right shoulder, and back. The case was tried twice in 19(b) hearings by arbitrator Caliendo. It was tried a third time by arbitrator Akemann on permanency. Arbitrator Caliendo awarded TTD in the first hearing and found a causal connection between the industrial accident and petitioner’s injuries to his leg, neck, right shoulder and back. No appeal was taken from that decision. Arbitrator Akemann found that there was no objective evidence of an injury to petitioner’s head, neck, back or right shoulder. The Industrial Commission affirmed arbitrator Akemann’s decision. Petitioner appealed, claiming that arbitrator Caliendo’s prior decision acted res judicata and/or collateral estoppel. The appellate court reversed the Industrial Commission and held that arbitrator Caliendo’s prior decision acted as “Law of the Case,” thus precluding arbitrator Akemann from finding no causal connection between the industrial accident and petitioner’s injuries to his neck, back, and right shoulder. It remanded the case to the Industrial Commission for findings of permanency on those injuries.

Civil Case Improperly Dismissed Under Exclusivity Provisions of the Act When Petitioner Accepted but Did Not Seek Workers’ Compensation Benefits - Back to Table of Contents - Back to WC Index

Wren v. Reddick Cmty. Fire Prot. Dist., 2002 Ill. App. LEXIS 1385 (3d Dist. February 2003). Plaintiffs were volunteer firefighters who filed suit against the fire district after the fire truck they were riding on was involved in an accident. The trial court granted summary judgment in favor of defendants, Reddick Community Fire Protection District, holding that plaintiffs were barred by the exclusivity provisions of the Illinois Workers’ Compensation Act since they filed workers’ compensation claims and received benefits. The appellate court reversed. The court held that a party who seeks and accepts workers’ compensation benefits is prohibited from subsequently filing suit against the provider of those benefits. This rule applies even where the party receiving benefits is not an employee. One may not reap the benefits of the Act and then deny its applicability. However, a party may accept benefits voluntarily offered, and may even file a claim for benefits to protect his/her rights. It is only when one actively seeks benefits and obtains them as a result of those efforts that he/she is barred from pursuing a common law claim. Since plaintiffs in this case did not actively seek benefits, they were not barred from pursuing a civil action. To hold otherwise would allow employers to send payments to injured parties or bereaved families, characterize the payments as workers’ compensation benefits, and terminate any option the employee or family might have to avoid the exclusivity-of-remedy rule under the Act.

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