More on Temporary Total Disability Liability: Surgery
Must Be Pursued - Back to Table of Contents - Back to WC Index
Author: Kevin J. Luther, Rockford

In recent decisions, the Appellate Court of Illinois has focused on the concept of maximum medical improvement when considering temporary total disability issues. A good question, however, is whether or not an individual who has reached a maximum level of medical improvement is entitled to TTD even if there is also a surgical recommendation by a treating physician.

In Walker v. Industrial Comm’n, 345 Ill. App. 3d 1084, 804 N.E.2d 135, 281 Ill. Dec. 509 (4th Dist. 2004), the claimant was employed as an electrical utility foreman. While at work, he ruptured a disc in his back and eventually underwent a laminectomy. He returned to work for about two months and then injured his back again while slipping on ice. He underwent a second laminectomy and did not return to work.

The physician who performed the first two laminectomies stated that he could not do anything further for the claimant’s condition. A second opinion was obtained, and that physician stated that the petitioner could either accept his condition with permanent light-duty restrictions or undergo surgery. That second opinion physician stated that if the claimant elected against surgery, then the claimant would then have reached a point of maximum medical improvement.

The claimant did not undergo the third surgery. At arbitration, he testified that he currently had back pain along with pain down both legs. He stated that he wanted the surgery because he believed it would help the back and leg pain, although he noted that “it would not help a whole lot.” The evidence at trial was that the claimant was not able to pursue the essential functions of his electrical utility foreman position.

The employer paid TTD benefits up to a date even after the consulting physician stated that the claimant was at a maximum level of medical improvement if no surgery was accomplished. Because the claimant indicated a desire for surgery at trial, the arbitrator concluded that an inference exists that the claimant had not reached a maximum level of medical improvement. The arbitrator therefore awarded TTD benefits up to the trial date and continuing thereafter.

The Industrial Commission modified the arbitrator’s decision while reducing the amount of TTD benefits significantly from 112 weeks to 29 6/7 weeks. The end date for TTD benefits in the Industrial Commission decision was the date that a physician noted that the claimant was at a maximum level of medical improvement without surgery. The circuit court affirmed the Industrial Commission decision.

The appellate court noted that when a court is to determine the duration of TTD benefits, the only question that needs to be asked and answered is whether the claimant has reached a maximal level of medical improvement and, if so, when. The appellate court noted that once the claimant’s condition is no longer temporary, then entitlement to TTD benefits ceases even though the claimant may thereafter be entitled to receive permanent total or partial disability benefits. See, e.g., Freeman United Coal Mining Co. v. Industrial Comm’n, 318 Ill. App. 3d 170, 741 N.E.2d 1144, 251 Ill. Dec. 966 (5th Dist. 2000).

The appellate court noted that the record was devoid of any evidence showing that the claimant had taken steps to obtain the recommended surgery. The claimant waited approximately a year and a half to decide whether to undergo the recommended surgical procedure while continuing to collect temporary total disability benefits. The appellate court noted that the Industrial Commission found the claimant’s lengthy delay in considering surgical options to be unreasonable. The claimant asserted that the Industrial Commission erred in terminating TTD benefits for his delay in seeking surgery because the Industrial Commission could not “force” the claimant to have surgery. The appellate court, however, noted that in previous decisions holding that a claimant cannot be forced to undergo surgery, it was so determined because of a “justifiable fear.” In the present case, the appellate court concluded that the claimant did not have a “justifiable fear” because the claimant actually indicated at arbitration that he wanted the surgery. Because the claimant took no substantial steps to undergo surgery but made the assertion to the arbitrator at hearing that he did want the surgery, the appellate court determined that the claimant’s delay could allow him to secure additional TTD benefits during a time period which he would not otherwise be entitled. The Industrial Commission’s decision that the 19-month delay by the claimant was unreasonable was an appropriate inference to be drawn from the evidence.

The appellate court did modify one aspect of the Industrial Commission decision. On the “stipulation sheet” or “request for hearing” forms completed by both sides at the time of arbitration, it was stipulated that the claimant had suffered 84 weeks of temporary total disability. As such, the appellate court noted that the Industrial Commission was without power to reduce TTD benefits below the stipulated level of 84 weeks. Where a party stipulates to a fact, that party cannot later claim that the fact is incorrect. Employer attorneys should realize that any stipulations with respect to TTD will serve as a legal “minimum” for TTD liability.

News From the Industrial Commission - Back to Table of Contents - Back to WC Index
Author: Bruce L. Bonds, Urbana

Change continues to be the order of the day at the Illinois Industrial Commission. First, as many of you are already aware, the name of the Illinois Industrial Commission changed to the Illinois Workers’ Compensation Commission effective January 1, 2005. This name change was enacted because of confusion perceived to be created by the current name which does not bear any reference to workers’ compensation.

In addition, the Industrial Commission has hired seven new arbitrators who took over their dockets effective December 1, 2004. Milton Black, Charles DeBriendt, and Gerald Jutila will be assigned to the Chicago docket. Greg Dollison will handle a second Joliet docket as well as the Kankakee docket. Jacklyn Kinnaman, formerly a Commissioner for 14 years, will handle two-thirds of the Geneva call. Robert Lammie will handle a second Wheaton docket, and Jeffrey Tobin will handle the Carlinville/Jacksonville/Lawrenceville/Mt. Vernon/Quincy and Taylorville dockets. As a result of these hirings, the average case load per arbitrator will be reduced from 4,200 to 3,300 cases per arbitrator.

Some of these hirings may ultimately be in doubt, however, due to a recent decision by Judge Patrick McCann of the Cook County Circuit Court. On November 29, 2004, Judge McCann ruled that State of Illinois fees imposed last year on Illinois employers to fund the Illinois Industrial Commission were improper. The ruling in a lawsuit filed by the Illinois Chamber of Commerce struck down state fee increases on the basis they were excessive and unconstitutional. The fees were part of a plan by Illinois Governor Blagojevich to tax Illinois employers so that they would wholly fund the Illinois Industrial Commission. The Commission had previously been supported by tax payers. The fees in question, however, generated over 30 million dollars in revenue, whereas the Industrial Commission traditionally needed only 12 or 13 million dollars to operate. The plan apparently was to send the excess fees to the General Revenue Fund. The court struck down the fees as unconstitutional and ordered the fees generated to date to be placed in escrow pending resolution of further appeals. It is anticipated that this matter will be ultimately appealed to the Illinois Supreme Court. Meanwhile, the Commission claims that they have funds to continue operating notwithstanding the dramatic increase in their recent staff and other outlays.

In addition, the long vacant business commissioner slot on the Illinois Industrial Commission has now been filled. The Governor appointed Natalie Romo, formerly an attorney with the Hennessy & Roach firm to fill the vacant position. This should help resolve a backlog in cases pending before Panel B, which hears a significant number of downstate reviews. Commissioner Romo will serve on Panel B with Commissioners Sherman and Rink.

Finally, many of you and/or your insureds have probably been receiving revised hearing notices from the Industrial Commission. Chairman Ruth has changed the policy for case continuances. For many years, cases have been on the docket on a 90-day cycle. Other than emergency hearings, only cases on the docket can be heard. Chairman Ruth has reduced the 90-day cycle to a 60-day cycle. What this means is that cases will be up for potential hearing on any and/or all issues every other month. This will require your defense counsel to attend more rather than fewer hearings.

Sidewalk and Parking Lot Falls - Back to Table of Contents - Back to WC Index
Author: Kevin J. Luther, Rockford

In Litchfield Healthcare Center v. Industrial Comm’n, 349 Ill. App. 3d 486, 812 N.E.2d 401, 285 Ill. Dec. 581 (5th Dist. 2004), an employee of the nursing home had parked her car in a parking lot that was maintained by the respondent. She walked into her place of employment and clocked in. She realized that she had forgotten an item necessary for work, and then returned to her car to obtain that item. There is no dispute that the item that she was retrieving from her car was necessary for her to do her job.

When she was walking to her car, she stepped onto a sidewalk and was walking with a co-employee when she tripped and fell. The claimant stated that because the concrete was not level, she rolled her ankle, and sustained an injury that led to surgery.

Exhibits were introduced in evidence that included photographs. The photographs did show varying heights in the adjoining sidewalk slabs. The arbitrator found that the petitioner sustained injuries that arose out of and in the course her employment. The Industrial Commission reversed. A circuit court reversed the decision of the Industrial Commission and reinstated the arbitrator’s award that found compensability.

The main issue before the appellate court was whether or not the injury arose out of the claimant’s employment. The appellate court discussed the various categories of “risk.” There are three types of risk: risks that are distinctly associated with the employment, a personal risk, and a neutral risk, which has no particular personal or employment characteristics. In applying this analysis, the appellate court determined that the risk of tripping on the sidewalk is a neutral one, and therefore the question of whether the injury arose out of her employment rests on a determination whether she was exposed to a risk to a greater extent than to which the general public was exposed.

The appellate court found that the Industrial Commission’s finding of no compensability was against the manifest weight of the evidence. The appellate court determined that the claimant was exposed to a defective sidewalk that created a risk of tripping thereon more frequently than the general members of the public. Where an injury to an employee takes place in an area that is the usual route to the employer’s premises and if that route has special risks or hazards, the hazard becomes part of the employment. A dissenting justice argued that the Industrial Commission’s determination that there was no special hazard or risk was not against the manifest weight of the evidence.

In Vill v. Industrial Comm’n, 351 Ill. App. 3d 798, 814 N.E.2d 917, 286 Ill. Dec. 691 (1st Dist. 2004), the claimant was a security officer who entered the employee parking lot and parked her car in a place that was very narrow. The claimant claimed that she had to squeeze out of her car because there was only six inches between her car and the car next to her. Upon exiting the car, she claims that she twisted her knee before the knee hit the ground.

The medical records and other witnesses contradicted the testimony of the petitioner. The arbitrator found that a compensable accident took place, but the Industrial Commission reversed the decision, which was confirmed by the circuit court.

The appellate court confirmed the decision of the Industrial Commission, finding that the Industrial Commission’s denial was not against the manifest weight of evidence. They noted the inconsistent history of how the accident occurred, and they further noted that the Industrial Commission found that there was no defect in the parking lot that caused the injury.

Both of these decisions underscore the necessity of a thorough investigation to determine whether or not initially the claimant stated that a defect caused the injury, and secondly, whether an actual defect did exist. Early investigation is imperative as well as the examination of all initial reports and medical records that document how the incident did take place.

How Good Is a “Ghere Objection?” - Back to Table of Contents - Back to WC Index
Author: Kevin J. Luther, Rockford

Workers’ Compensation practitioners who attend and take evidence depositions of treating and examining physicians have become familiar with what is known as a “Ghere objection.” This objection originated in the appellate court decision of Ghere v. Industrial Comm’n, 278 Ill. App. 3d 840, 663 N.E.2d 1046, 215 Ill. Dec. 532 (4th Dist. 1996).

In Ghere, a treating physician had never treated an injured worker for an alleged heart condition. The treating records never mention the condition of the petitioner’s heart. At an evidence deposition, the claimant’s attorney asked causal connection questions to that treating physician with respect to the heart condition. The appellate court concluded that the employer’s attorney was truly surprised. It held that the physician’s causation opinion had gone beyond the contents of the medical records and because that opinion was not previously and appropriately disclosed, that opinion was not admissible.

In Homebrite Ace Hardware v. Industrial Comm’n, 351 Ill. App. 3d 333, 814 N.E.2d 126, 286 Ill. Dec. 476 (5th Dist. 2004), the employee was injured when lifting buckets. He felt pain in his low back and was treated for low back pain that involved a herniated disc. He returned to work with restrictions.

It does not appear that there was any mention of a neck problem in the six-to eight-week period after the accident. The petitioner testified that he had never experienced any neck problems before the injury, but was eventually referred to a neurosurgeon who treated him for the low back as well as for the cervical pain as it developed. Prior to an evidence deposition, this treating neurosurgeon did not provide either the petitioner or the respondent’s counsel with a report or opinion regarding the causal connection between the accident and both the neck and low back problems.

At this deposition, the neurosurgeon testified that there was causal connection between both the neck and low back problems and the work accident. This testimony was made over a “Ghere objection.” The neurosurgeon also testified that the claimant was in need of neck surgery, which had not taken place because it was not authorized.

The arbitrator found causal connection and ordered the respondent to authorize the neck surgery. The Industrial Commission confirmed the arbitrator’s decision, and the Industrial Commission decision was affirmed by the circuit court.

The appellate court noted that Ghere did not set forth a bright-line rule that undisclosed opinion testimony constitutes a surprise. The appellate court felt that the neurosurgeon’s records contained details about treatment of the claimant’s neck and therefore, the employer was put on notice that the neurosurgeon might testify as to the causal connection between the neck condition and the work accident. Accordingly, the employer’s argument that this testimony and opinion should have been excluded was rejected.

It is worth noting that with respect to evidentiary rulings involving Industrial Commission cases, those rulings will not be disturbed absent an abuse of discretion. According to Trettenero v. Police Pension Fund of the City of Aurora, 333 Ill. App. 3d 792, 801, 776 N.E.2d 840, 267 Ill. Dec. 468 (2d Dist. 2002), an abuse of discretion occurs where “no reasonable person” would take the view adopted by the lower tribunal.

As many workers’ compensation practitioners have realized for several years, any defense to a workers’ compensation claim that involves “laying in the weeds” and making a “Ghere objection” may not be successful and is not recommended. It would appear that if the body part in controversy in the workers’ compensation claim is mentioned by a treating doctor in his or her records, then that could be sufficient to put the employer “on notice” of the potential opinion.

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

Denial of Coal Worker’s Pneumoconiosis Affirmed - Back to Table of Contents - Back to WC Index

Docksteiner v. Industrial Comm’n, 346 Ill. App. 3d 851, 806 N.E.2d 230, 282 Ill. Dec. 255 (5th Dist. 2004). Claimant worked as a coal miner for approximately 25 years during which time he was exposed to, and breathed, coal mine dust. The claimant was employed by Peabody at its Eagle No. 2 mine. On July 12, 1993, Peabody closed that mine and the claimant has not worked as a miner since. On March 4, 1997, the claimant filed an application for adjustment of claim under the Occupational Disease Act asserting that he suffered shortness of breath as a result of his coal dust exposure. The court affirmed the Industrial Commission’s denial of benefits based on section 1(f) of the Occupational Disease Act because claimant did not prove that his disablement had occurred within two years of his last exposure.

Attorney’s Fees Not Available for First Attorney
When Application Dismissed - Back to Table of Contents - Back to WC Index

Alvarado v. Industrial Comm’n, 347 Ill. App. 3d 352, 807 N.E.2d 494, 282 Ill. Dec. 870 (1st Dist. 2004). The Goldstein law firm filed claimant’s application for adjustment of claim in 1996. Claimant discharged Goldstein and hired Ribbeck as counsel. Ribbeck filed a second application for the same date of injury in 1999. In 1997, Goldstein filed a petition for attorney’s fees on the 1996 claim. Subsequently, the 1996 case was dismissed by claimant without notice to Goldstein and the 1999 case was settled. Five months after the settlement contract was approved, Goldstein filed a petition for attorney’s fees. The Industrial Commission granted Goldstein’s petition. The appellate court reversed and found that the Commission had no jurisdiction to reopen the case five months after a lump-sum contract had been approved. It noted that section 19(f) of the Act provides that a settlement contract becomes final unless a petition for review is filed within 20 days.

Commission’s Reversal of Arbitrator Not Entitled to Extra Scrutiny - Back to Table of Contents - Back to WC Index

Sleeter v. Industrial Comm’n, 346 Ill. App. 3d 781, 805 N.E.2d 1227, 282 Ill. Dec. 210 (4th Dist. 2004). Claimant was awarded benefits by the arbitrator. The Industrial Commission reversed and found claimant not credible. Claimant argued that the appellate court should weigh the Commission’s decision with extra scrutiny because the Commission reversed the arbitrator who found him credible. The appellate court rejected claimant’s argument and specifically noted that it is the function of the Commission to decide questions of fact, judge the credibility of witnesses, and resolve conflicting evidence. The Commission’s determination on a question of fact will not be disturbed on review unless it is against the manifest weight of the evidence. The Commission exercises original rather than appellate jurisdiction and is in no way bound by the arbitrator’s findings. It specifically rejected the argument that an extra degree of scrutiny must be applied to a decision of the Commission that reverses the decision of an arbitrator.

Normal Daily Activity Exception – It’s Alive! It’s Alive! - Back to Table of Contents - Back to WC Index

Twice Over Clean, Inc. v. Industrial Comm’n, 348 Ill. App. 3d 638, 809 N.E.2d 778, 284 Ill. Dec. 212 (3d Dist. 2004). Twice Over Clean involved a petitioner who suffered a heart attack. Claimant testified that he was engaged in removing asbestos that had previously been collected into large bags, each of which weighed around 40 to 45 pounds. Later that evening, he had a heart attack. There was medical testimony for and against causation. The appellate court in Twice Over Clean I, 337 Ill. App. 3d 805, 786 N.E.2d 1096, 272 Ill. Dec. 262 (3d Dist. 2003) noted that it is well established that a preexisting heart disease will not preclude a workers’ compensation award for a heart attack where work-related stress contributed to the heart attack. However, one exception to this rule is when the heart disease is so far gone that any stress, even the most ordinary exertion, will bring on the heart attack. The appellate court reversed the Industrial Commission and relied on Sisbro, Inc. v. Industrial Comm’n, 327 Ill. App. 3d 868, 764 N.E.2d 1163, 262 Ill. Dec. 46 (4th Dist. 2002) (Sisbro I).

Sisbro I held that a claimant is not entitled to compensation, regardless of whether his condition was caused by work, if his physical condition was so deteriorated that his condition of ill-being could have been produced by normal daily activities. The Illinois Supreme Court issued Sisbro II, 207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003), which reversed Sisbro I and held that the “Normal Daily Activity Exception” applies where the preexisting condition alone was the cause of the injury. Subsequently, the Illinois Supreme Court directed the appellate court in Twice Over Clean to vacate its judgment and to reconsider it in light of Sisbro II.

On reconsideration in Twice Over Clean II, the appellate court maintained its reversal of the Industrial Commission and held that the normal daily activity limitation barred compensation. It noted that “any activity or no activity could put sufficient stress on petitioner’s heart to result in a myocardial infarction.” The appellate court was careful to note that its decision did not violate the analytical framework set forth in Sisbro II since it did not hold that claimant proved a causal connection and deny compensation. Rather, it held that petitioner failed to prove “sufficient causal connection” between his work and his injury. It held that a work activity is a “sufficient cause” of the aggravation of a preexisting condition if the work activity presented risks greater than to which the general public is exposed and the claimant’s condition was not so deteriorated that his injury could have occurred through normal daily activity.

Because petitioner’s condition was so deteriorated that any normal activity would have been sufficient to cause petitioner’s heart attack, he failed to prove sufficient causal connection between his work and his subsequent heart attack to receive workers’ compensation benefits. Therefore, the decision of the Industrial Commission awarding him benefits is against the manifest weight of the evidence. (Opinion issued after original was ordered vacated by Supreme Court in light of Sisbro). Now on appeal to the Illinois Supreme Court.

Only One Aggressor in a Fight - Back to Table of Contents - Back to WC Index

Franklin v. Industrial Comm’n, 211 Ill. 2d 272, 811 N.E.2d 684, 285 Ill. Dec. 197 (2004). The Industrial Commission denied benefits to a claimant who was involved in an altercation with a co-worker. The court noted that generally, injuries arising from an assault by a co-worker at the workplace during work hours are compensable if the assault arose in the course of a dispute involving the conduct of the work. However, where the party seeking compensation was the aggressor, the party’s acts are not within the scope of employment and are not compensable. The Industrial Commission held that both parties to the fight were mutual combatants and denied benefits. The appellate court reversed and held that as a matter of law, there cannot be two aggressors. Only the initial aggressor is to be denied benefits. The Illinois Supreme Court agreed with the appellate court that a typical fight involving two employees has only one aggressor. The case was remanded to the Industrial Commission for a determination of whether claimant was the aggressor.

TTD Not to Be Awarded After Claimant Misses Section 12 Examination - Back to Table of Contents - Back to WC Index

R.D. Masonry, Inc. v. Industrial Comm’n, 349 Ill. App. 3d 752, 812 N.E.2d 382, 285 Ill. Dec. 562 (1st Dist. 2004). While the case was on appeal relative to a prior 19b award, petitioner was instructed not to attend a medical exam scheduled by respondent pursuant to section 12 of the Illinois Workers’ Compensation Act. In a subsequent 19b hearing, the Industrial Commission awarded TTD benefits even though claimant refused to attend the section 12 exam. The appellate court reversed and held that claimant’s refusal to attend a section 12 exam required a suspension of TTD so no benefits could be awarded after the date the claimant refused to attend the exam. The Commission reasoned that since respondent was contesting the claimant’s right to receive benefits under the Act during the 19b appeal, and had not paid claimant any such benefits at the time it requested the examination, a suspension of TTD was not required. This reasoning was flatly rejected by the court. It held that claimant’s compliance with section 12 is not restricted to cases where the employer acknowledges his liability and makes compensation payments. It applies to all cases where the employee is entitled to receive disability payments, and whether he is entitled to them is not dependent on whether the employer acknowledges liability by making payments.

Permanent Total in Favor of 83-Year-Old Claimant Upheld - Back to Table of Contents - Back to WC Index

Max Shepard, Inc. v. Industrial Comm’n, 348 Ill. App. 3d 893, 810 N.E.2d 54, 284 Ill. Dec. 401 (1st Dist. 2004). Claimant tripped over a box while working at a delicatessen and suffered a comminuted fracture of the left tibia and fibula. The treating physician noted that petitioner had some loss of function, would not be able to return to delicatessen work and was not sure whether vocational rehabilitation was appropriate given his age. The arbitrator awarded 60% loss of use of the leg. The Industrial Commission reversed and awarded permanent and total disability benefits. The appellate court upheld the award of total and permanent disability despite the fact that claimant failed to introduce any evidence that work was not available to him.

Failure to Include Appendix in Brief on Appeal Warrants Dismissal of Appeal - Back to Table of Contents - Back to WC Index

Keefe v. Freedom Graphic Systems, Inc., 348 Ill. App. 3d 591, 810 N.E.2d 189, 284 Ill. Dec. 536 (1st Dist. 2004). Respondent filed an appeal of a 19g decision reducing an award to a judgment but failed to include in the brief a copy of the arbitrator’s decision and a copy of the Commission’s decision in the appendix as required by Supreme Court Rule 341. Further, respondent failed to respond to a rule to show cause why the brief should not be stricken. Thus, the claimant’s motion to dismiss the appeal was granted.

Sylvester to Be Applied Retroactively and Commission’s Reversal of Arbitrator in Favor of Petitioner Upheld - Back to Table of Contents - Back to WC Index

Freesen, Inc. v. Industrial Comm’n, 348 Ill. App. 3d 1035, 811 N.E.2d 322, 285 Ill. Dec. 81 (4th Dist. 2004). The arbitrator held that claimant’s seizure disorder was not related to the work injury. The Industrial Commission reversed and held that claimant’s seizures were related to the work injury. The Commission relied on the testimony of the treating physician who stated that “it is quite possibl[e] that he may have had an occult head injury at the time of his fall that only manifested itself later on.” The appellate ourt affirmed, ruling that the Commission’s decision was not against the manifest weight of the evidence. The court went on to hold that the Commission’s calculation of the average weekly wage under Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 756 N.E.2d 822, 258 Ill. Dec. 548 (2001) was proper, even though it applied Sylvester retroactively.

Wages Considered Concurrent Despite Layoff - Back to Table of Contents - Back to WC Index

Flynn v. Industrial Comm’n, 211 Ill. 2d 546, 813 N.E.2d 119, 286 Ill. Dec. 62 (2004). Claimant worked as an asphalt driver from March through November from 1979 to 1996 making $22.59 per hour. In the winter of 1997, while laid off from his asphalt job, he was injured while working for a temporary employer. As a result of the injury, he became disabled from his work as an asphalt driver and could earn only $9 per hour. The arbitrator awarded a wage differential including both wages in the calculation of the average weekly wage. The Industrial Commission reversed and held that the asphalt wages were not to be included under section 10. The Supreme Court reversed and held that the wages as an asphalt driver would be included in the calculation of the average weekly wage even though the claimant was laid off at the time of his injury. It included the asphalt wages because of his employment history of rehire after the layoff in addition to the fact that he was subject to rehire at any time during the layoff. Thus, claimant’s relationship with his asphalt employer was not wholly severed at the time of his injury.

Award for Coal Dust Exposure Not Against Manifest Weight - Back to Table of Contents - Back to WC Index

Peabody Coal Co. v. Industrial Comm’n, 349 Ill. App. 3d 493, 812 N.E.2d 59, 285 Ill. Dec. 470 (5th Dist. 2004). Claimant worked in a coal mine for 22 years and retired in 1977. Within six months of his retirement, claimant was examined at his attorney’s request and was found to have coal worker’s pneumonoconiosis. Claimant was also examined by the employer’s physician who found no disease. The Industrial Commission found the case compensable and the appellate court affirmed. The court noted that it is the function of the Industrial Commission to decide conflicting medical evidence and its decision will only be set aside if it is against the manifest weight of the evidence.

Claimant Is Entitled to Maintenance Self-Initiated During Job Search - Back to Table of Contents - Back to WC Index

Roper Contracting v. Industrial Comm’n, 349 Ill. App. 3d 500, 812 N.E.2d 65, 285 Ill. Dec. 476 (5th Dist. 2004). Claimant injured his shoulder on January 17, 2000 in the course of his employment. He reached a state of maximum medical improvement on March 21, 2001. On April 10, 2001 he initiated his own job search. Respondent offered formal vocational rehabilitation on September 21, 2001. The Industrial Commission awarded 50% of a person, TTD to March 21, 2001 and maintenance to September 21, 2001. Respondent argued that maintenance was not payable from March 21, 2001 to September 21, 2001 because claimant had not requested vocational rehabilitation and it had not been offered. The appellate court disagreed holding that maintenance payments were payable during claimant’s job search because it qualified as a self-initiated rehabilitation plan under the Illinois Workers’ Compensation Act.

Decision by IC With Improperly Appointed Commissioner Valid - Back to Table of Contents - Back to WC Index

Peabody Coal Co. v. Industrial Comm’n, 349 Ill. App. 3d 1023, 813 N.E.2d 263, 286 Ill. Dec. 206 (5th Dist. 2004). Robert Madigan was appointed commissioner on January 1, 2001. Upon his resignation, Governor George Ryan appointed Paul Rink as a temporary commissioner until a permanent commissioner was appointed. At the same time, Ryan appointed Diane Ford to the position held by Rink. Ford signed the decision of the Industrial Commission. The appellate court raised the issue of the constitution of the panel sua sponte. It held that the decision of the Commission was valid despite the improper appointment of Ford. Under the Defacto Officer Doctrine, the Industrial Commission decision was valid because Ford was acting under color of title.

Wage Differential Awarded by Appellate Court - IC Reversed - Back to Table of Contents - Back to WC Index

Yellow Freight Systems v. Illinois Industrial Comm’n, 351 Ill. App. 3d 789, 814 N.E.2d 910, 286 Ill. Dec. 684 (1st Dist. 2004). Claimant suffered an aggravation of a preexisting shoulder injury. The arbitrator awarded 45% of an arm and the Industrial Commission awarded 40% of a person. The appellate court reversed and awarded a wage differential under section 8(d)1 despite the fact that claimant accepted a lower paying job as a security guard, refused to apply for higher paying positions with the employer, and was found by the Commission not to have shown any evidence of an appropriate job search.

Knee Injury While Exiting Vehicle Not Compensable - Back to Table of Contents - Back to WC Index

Vill v. Industrial Comm’n, 351 Ill. App. 3d 798, 814 N.E.2d 917, 286 Ill. Dec. 691 (1st Dist. 2004). Claimant arrived at work and parked in a lot designated, but not owned or maintained, by the employer. The crowded conditions of the parking lot required claimant to park close to an SUV. While squeezing out of her vehicle with her uniform in hand, claimant twisted her knee and sustained a torn meniscus. The arbitrator made an award but the Industrial Commission found the case not compensable. The appellate court upheld the decision of the Industrial Commission and held that the risk of exiting a motor vehicle confronts all members of the general public. Thus, the claim was not compensable.

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