Continuously Transversing a Curb Is an Increased Risk - Back to Table of Contents - Back to WC Index
Author: Kevin J. Luther, Rockford

In Nascote Industries v. Industrial Comm’n, 353 Ill. App. 3d 1056, 820 N.E.2d 531, 289 Ill. Dec. 755 (5th Dist. 2004), the appellate court, Industrial Commission division, had occasion to review what constitutes an “increased risk” with respect to workers’ compensation claims. Unfortunately, the appellate court affirmed a decision from the Industrial Commission which awarded compensation.

In Nascote Industries, the petitioner worked as a trimmer in a department of a factory which required her, in essence, to trim off excess flash. On the date of the occurrence, while placing a trimmed bumper on a rack, the petitioner turned and then stepped down out of the rack and onto the floor. The stepdown was approximately four to six inches. As she stepped down, her left foot turned over and popped, causing extreme pain.

The evidence established that there was nothing defective about the floor such as cracks, rocks, dirt, grease, or oil. The claimant stated that she simply stepped down onto the concrete floor when she felt pain in her ankle.

The claimant did testify that she was required to keep up with the press and that there were “cycle” speeds that were in the range of 70 to 75 seconds. She testified that the work was “fast paced.”

The petitioner did not immediately report the accident but worked the rest of her shift and the following day. She was off work the entire weekend and then reported the incident to her supervisor on the following Monday. The petitioner had also been treated for her left foot six months prior to this injury with a diagnosis of tarsal tunnel syndrome.

The arbitrator found that a compensable accident took place. This finding was affirmed by the Industrial Commission and the circuit court. The appellate court noted that a claimant must establish that she suffered a disabling injury which arose out of and in the course of her employment. “Arising out of” originates from a risk connected with, or incidental to, the employment and involves a causal connection between the employment and the accidental injury. A risk incidental to the employment is where it belongs to or is connected with what an employee has to do to fulfill one’s own duties. See Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 541 N.E.2d 665, 133 Ill. Dec. 454 (1989).

The employer argued that there was nothing unusual about the premises that contributed to the claimant’s injury. The employer argued that there was no increased risk of injury because a four- or six-inch step is one that is encountered by the general public on a daily basis. The Appellate Court, Fifth District, found that Caterpillar was distinguishable because Caterpillar, the employer, was not required to continuously transverse the curb, so there was not an increased risk of injury. In Nascote Industries, the appellate court reasoned that the claimant’s work was fast paced, and it also determined that stepping down onto the floor was a part of her work duties. The appellate court concluded that the claimant was not merely walking down a step and applied the manifest weight of evidence standard, and compensability was affirmed.

Surveillance Can Be Successful

In Ross v. Entenmann’s Bakery, 353 Ill. App. 3d 193, 818 N.E.2d 811, 288 Ill. Dec. 876 (1st Dist. 2004), the claimant worked as a bakery cleaner. He claimed that while performing his job, he felt a sharp pain in his back. He reported the incident to the supervisor and continued to work.

Twenty-one days after the occurrence, the petitioner began treatment with a treating physician and gave a history consistent with a work-related accident three weeks earlier. The diagnosis given was lumbar strain, and the petitioner was provided with a light-duty restriction.

During the time period that the claimant was on light duty, surveillance was done and the claimant was videotaped performing activities such as scooping gravel, raking, and attempting to lift or push a stranded motor vehicle. The petitioner was observed driving a van and lifting a concrete slab. On the date of the surveillance, the claimant sought treatment with his treating physician and did not identify any of the events that were displayed on the videotape. The treating physician continued to recommend treatment and thereafter continued to note the claimant’s ongoing back pain and problems.

Approximately four months later, the claimant was taken off work completely due to his back pain for approximately six months. Additional treatment, including physical therapy and a myelogram, was accomplished. The claimant was released to light-work duties but did not return to work.

Thereafter, the claimant sought treatment at an emergency room because he had injured his back while lifting a mattress while at home. The treating physician thereafter testified at deposition and rendered an opinion that the claimant’s back pain could or might be causally connected to the work-related event. On cross-examination the treating physician was confronted with the surveillance tape, and on cross-examination the treating physician testified that he could not state whether the work-related accident or the activities shown on the videotape were a cause of the petitioner’s alleged continuing back pain. The treating physician testified that if he had reviewed the surveillance tape on the date that he examined the petitioner, he probably would have returned the claimant to work in some capacity.

The employer did have an independent examination, and the evaluating physician concluded that the petitioner’s physical examination was normal with the exception of mild subjective complaints. The employer’s IME physician felt that no further treatment was necessary, and the petitioner could return to work without restrictions.

The arbitrator found that the petitioner sustained an accidental injury and awarded benefits to the claimant, including TTD benefits. The Industrial Commission reversed and found that the claimant failed to prove an accidental injury. The Industrial Commission found that the treating physician’s testimony, coupled with the surveillance tape, did not support a finding of causal connection. The Industrial Commission noted that the treating physician could not opine, after reviewing the videotape, that the claimant’s condition was a result of work duties. It noted that the videotape clearly demonstrated the claimant was engaged in heavy activities during the time period when the claimant alleged that he was disabled from work.

The appellate court affirmed the Industrial Commission decision. This appellate court decision does demonstrate that surveillance is a useful tool in the appropriate claim.

Illinois Supreme Court Speaks Again on the Normal Daily Activity Exception to Workers’ Compensation Claims - Back to Table of Contents - Back to WC Index
Author: Kevin J. Luther, Rockford

The IDC Monograph that appeared in the IDC Quarterly, third quarter of 2004, addressed the normal daily activity exception to workers’ compensation claims here in Illinois. The Monograph was prompted by the Illinois Supreme Court Decision in Sisbro II, which examined the compensability of aggravation of preexisting conditions in workers’ compensation claims. Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003). The conclusion of Sisbro II was that the normal daily living exception does so exist in the State of Illinois notwithstanding the assertion of some representatives of the plaintiffs’ bar to the contrary. The IDC Monograph identified Twice Over Clean II, which was an appellate court decision following Sisbro II. In Twice Over Clean II, the appellate court interpreted Sisbro II to provide that a claimant’s probability to injury during normal daily activities is not an “exception” that applies to bar recovery despite the existence of a “sufficient causal connection” between work and injury, but instead was a “limitation” on when a “sufficient causal connection” may be found in the first place. Compensation was denied in Twice Over Clean II, and the Illinois Supreme Court recently issued a new decision as analyzed below. Twice Over Clean, Inc. v. Industrial Comm’n, 214 Ill. 2d 403, 827 N.E.2d 409, 292 Ill. Dec. 880 (2005).

By way of factual background, the workers’ compensation claimant was employed as a laborer for the respondent and was assigned to an asbestos removal job. On January 2, 1997, while performing heavy labor, he suffered chest pains. After he finished work, he went to his hotel and did not feel like eating. He again experienced chest pains in the hotel and broke out in a cold sweat. He was taken by ambulance to a hospital and was admitted and diagnosed with an acute inferior myocardial infarction. He was eventually released and returned to his home in Peoria, where he received additional care from his internist and cardiologist.

One of his treating physicians authored a report that was admitted into evidence. That report stated that apart from smoking, the claimant had limited risk factors for coronary artery disease. Another report from a Dr. Cohen concluded that, in his opinion, the myocardial infarction was precipitated by the heavy lifting that he did all day long at work on January 2, 1997. The evidence deposition of Dr. Cohen was taken, and Dr. Cohen testified that the myocardial infarction could or might have been caused by the physical activity engaged in by the claimant on January 2, 1997. On cross-examination, Dr. Cohen concluded that the claimant had a 90 percent occlusion of the right coronary artery that was “very significant” and that any activity and no activity by a person having that degree of occlusion could put stress on the heart to result in a myocardial infarction. He testified that “anybody can experience a myocardial infarction at rest, really.” He agreed with the cross-examiner’s statement that “a person with that degree of occlusion is basically a heart attack waiting to happen.”

The respondent presented the evidence deposition of a Dr. Wilner. Dr. Wilner is board certified in internal medicine and cardiovascular diseases. He reviewed medical records and rendered an opinion that the claimant’s work activity was not a factor in the myocardial infarction based on the enzyme levels he had at the time of his admission. Those enzyme levels were within normal limits, indicating that the infarction had not occurred prior to the preceding five or six hours.

The arbitrator found that the heart attack arose out of and in the course of the employment. The Industrial Commission affirmed the award of compensation. The circuit court of Peoria County affirmed the Industrial Commission decision, but the appellate court reversed, applying the “normal daily activity exception” to defeat the workers’ compensation claim. See Twice Over Clean, Inc. v. Industrial Comm’n, 337 Ill. App. 3d 805, 786 N.E.2d 1086, 272 Ill. Dec. 262 (3d Dist. 2003).

The claimant filed a Petition for Leave to Appeal to the Supreme Court. The Petition for Leave to Appeal was initially denied, but a supervisory order was directed to the appellate court requesting that it reconsider its opinion in light of Sisbro II, 207 Ill. 2d 193 (2003).

The appellate court, in reconsidering its prior decision, held that in light of the claimant’s susceptibility to a heart attack outside of work, the claimant failed in the first instance to prove a “sufficient causal connection” between the work and his injury. Twice Over Clean, Inc. v. Industrial Comm’n, 348 Ill. App. 3d at 652. The Illinois Supreme Court, in its most recent Twice Over Clean, Inc. decision, stated that “this conclusion completely ignores the competent testimony in the record establishing that Haulk’s work activity contributed to his risk of heart attack and that his symptoms began while he was performing extremely stressful labor.” Twice Over Clean, Inc., 214 Ill. 2d 403, 413 (2005). The Illinois Supreme Court again noted that the Illinois Industrial Commission’s determination that a sufficient causal connection was demonstrated is not against the manifest weight of the evidence in light of the testimony from one of the treating physicians. It noted that if a causal connection between the work activity and the injury is shown by competent testimony, no “limitation” or “exception” to compensation can be imposed to defeat a right of recovery.

The Illinois Supreme Court noted that the respondent conceded in its brief that if the claimant’s history of onset of symptoms is accurate, then Dr. Cohen’s opinion on causal connection based on the history had adequate foundation and was entitled to be given weight by the trier of fact. The respondent also conceded in its brief that if the claimant’s testimony was accurate, the arbitrator’s reliance on that history was supported by the manifest weight of the evidence. The respondent also claimed, however, that the history testified to by the claimant was inaccurate because it conflicted with his description of the onset of symptoms that he gave to hospital personnel at the time of his admission on January 2, 1997. The respondent argued that the petitioner’s testimony contradicting the hospital records should be disregarded.

With respect to this factual issue, the Illinois Supreme Court referred in its decision to Horath v. Industrial Comm’n, 96 Ill. 2d 349, 449 N.E.2d 1345, 70 Ill. Dec. 741 (1983). In Horath, the supreme court held that the Industrial Commission’s decision denying compensation was not against the manifest weight of the evidence despite undisputed expert medical testimony establishing causal connection between the injury and the claimant’s disability. The Industrial Commission noted that the claimant gave a different account of his symptoms to his treating physicians immediately after the injury than what he had given to the doctor who testified at hearing. The Illinois Supreme Court held that the finding regarding causal connection involved the credibility of the claimant, and it noted that assessing credibility is a function of the Industrial Commission, not of the reviewing court. Horath, 96 Ill. 2d at 356-57.

The Illinois Supreme Court then noted that while some of the descriptions in the medical records reflect a different account of onset of symptoms than what the claimant’s testimony was before the arbitrator, it concluded that the “nature and progression of the symptoms,” as described in both the records and the testimony, were “similar.” In light of this, the Illinois Supreme Court could not state that based on this particular record, the arbitrator’s acceptance of the claimant’s testimony is without foundation or based on speculation or conjecture. It concluded that there was a reasonable basis for the acceptance of Dr. Cohen’s opinion based on that testimony. It held that the decision of the Industrial Commission was not against the manifest weight of the evidence.

The Illinois Supreme Court stated that the normal daily activity limitation is relevant to the question of causation, but in this particular case it could not be applied as a matter of law to defeat the claim. It reversed the appellate court’s decision which found that the claimant failed to prove a “sufficient” causal connection between the work and the injury because of the claimant’s susceptibility to a heart attack outside of work.

In conclusion, our current Illinois Supreme Court is prone to reject an argument that the “normal daily activity” exception bars recovery when the claimant’s physical condition has so deteriorated that the condition of ill-being could have been produced by normal daily activity despite a causal connection between the work and the condition. If the trier of fact (arbitrator and reviewing workers’ compensation commission panel) concludes that there is a causal connection between the work duties and the condition, then the Illinois Supreme Court may not apply the “normal daily activity” exception. Accordingly, these types of cases need to be won with a finding of lack of causal connection at the Workers’ Compensation Commission level for the normal daily living exception to be accepted and applied in the reviewing courts. Practitioners will need to develop overwhelming testimony and evidence that there is little or no credible causal connection evidence or opinions at the trial level which establish medical causal connection.

CMS/Medicare Set Aside Account Update - Back to Table of Contents - Back to WC Index
Author: Bradford J. Peterson, Urbana

On July 11, 2005, the Center for Medicare Services (CMS) issued its most recent Memorandum clarifying CMS policies and procedures for enforcement of the Medicare Secondary Payor Act. The July 11, 2005 Memorandum changed some requirements for submission of a Medicare Set Aside (MSA) proposal to CMS for approval and further clarified procedures applicable to Medicare Set Aside accounts.

Current Beneficiary Threshold

The most significant change is the Center for Medicare Services establishment of a $10,000 threshold for submission of settlements involving current (Class 1) beneficiaries. CMS will no longer review new Medicare Set Aside proposals for Medicare beneficiaries when the total settlement amount is less than $10,000. CMS stresses in their Memorandum that this is merely a workload review threshold and not a “safe harbor” threshold. Any settlement involving a current Medicare beneficiary that is less than $10,000 should not be submitted to CMS as they will not review such proposals. CMS still requires, however, that Medicare’s interests be protected even in those cases where the settlement is less than $10,000. Accordingly, where future medical treatment is reasonably contemplated involving a current Medicare beneficiary, the Medicare covered amounts for such treatment must still be placed in a Medicare Set Aside account or other custodial account arrangement.

Calculation of Settlement Amount

In calculating whether a case meets the required threshold, CMS states that the “computation of the total settlement amount includes, but is not limited to, wages, attorneys fees, all future medical expenses, and repayment of any Medicare conditional payments” as well as the total pay out for any annuities as opposed to the cost or present cash value. In addition, if any permanency or indemnity payments are made to the petitioner prior to the settlement, such amounts must be included in determining whether the threshold has been met.

Previous payments for past medical expenses and temporary total disability benefits are not included in calculating the settlement value.

Settlement Prior to CMS Approval

CMS has now approved of the concept of parties settling a workers’ compensation claim prior to Medicare approval of a Medicare Set Aside account. CMS recommends that the parties settling the workers’ compensation claim, prior to CMS approval, proceed with settlement of the indemnity portion of the claim and leave medical expenses open pending approval of the Medicare Set Aside account. Alternatively, CMS has agreed that the parties may proceed with settlement of both indemnity and medical expenses; however, they point out that the settlement of the medical expenses is “not binding upon CMS unless/until the parties provide CMS with documentation that the WCMSA has actually been funded for the full amount as specified by CMS . . .” CMS then points out that if a Medicare Set Aside is not funded in an amount approved by CMS then CMS may deny payment for services related to the workers’ compensation claim up to the full amount of settlement.

Medical Treatment Incurred Prior to Medicare Eligibility

Previously, CMS disallowed use of Medicare Set Aside account funds for medical treatment incurred prior to the beneficiaries’ enrollment in Medicare. CMS now allows future Medicare beneficiaries to use MSA funds to pay for related (Medicare covered) expenses prior to their actual enrollment in Medicare. CMS stresses that the beneficiary will need to provide a full accounting for any such funds expended prior to Medicare enrollment.

Compromise of Future Medical Expenses

CMS continues to maintain that the cost of future medical expenses will not be compromised or reduced by CMS when reviewing a MSA proposal. Even where the underlying workers’ compensation claim is disputed and all other aspects are compromised, CMS still insists that future Medicare covered expenses be fully funded in the MSA proposal. CMS has acknowledged, however, that compromise will be considered with regard to prior conditional payments for medical expenses that may have been paid by Medicare.

Post Approval Amendments to MSA

The most recent CMS Memorandum addresses the issue of whether MSA funds may be released to an individual where they lose Medicare entitlement. CMS states that MSA funds cannot be released to the individual even when they lose Medicare entitlement. CMS acknowledges, however, that funds from the MSA may continue to be used for covered expenses during any such period of non-eligibility for Medicare.

Termination or Release of MSA Funds

CMS acknowledges that situations may arise justifying a reduction in the amount of the Medicare Set Aside amount. A withdrawal (reduction) from the MSA for personal purposes will only be allowed where a treating physician concludes that the beneficiaries medical condition has substantially improved and that anticipated future medical expenses will be reduced by at least 25 percent of the outstanding Set Aside account balance. In addition, CMS will only review such requests that are submitted at least five years after the previous CMS approval of the Medicare Set Aside account.

Review of CMS Decisions

CMS continues to assert that there are no appeal rights stemming from a CMS determination of the appropriate amount of a Medicare Set Aside account. They acknowledge, however, that a claimant may request clarification from CMS in cases of mathematical errors or obvious mistakes, CMS may be requested to correct the error.
In cases where additional evidence not previously considered by CMS may warrant a change in the CMS determination, the claimant may resubmit the case with the additional evidence and request re-evaluation.

Conclusion

The Medicare Secondary Payor Act and CMS’s enforcement of the same continues to evolve. It is anticipated that there will be future policy and practice changes by CMS. In addition, possible legislative changes to the Secondary Payor Act continue to be discussed in Washington, D.C. For additional information or to review the July 11, 2005, Memorandum, see the CMS website at www.cms.hhs.gov/medicare/cob/attorneys/att_wc.asp.

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

Retaliatory Discharge Claim Barred by Tort Immunity - Back to Table of Contents - Back to WC Index

Cross v. City of Chicago, 352 Ill. App. 3d 1, 815 N.E.2d 956, 287 Ill. Dec. 312 (1st Dist. 2004). Claimant was discharged from his position as a probationary laborer from the Chicago Department of Water and brought a claim for retaliatory discharge for exercising his rights under the Workers’ Compensation Act. The appellate court upheld the entry of summary judgment in favor of the City of Chicago. It held that the Local Governmental and Governmental Employees Tort Immunity Act barred the action because the discharge was a discretionary policy determination which gave rise to governmental immunity.

Foundation Required to Admit Medical Records - Back to Table of Contents - Back to WC Index

National Wrecking Co. v. Industrial Comm’n, 352 Ill. App. 3d 561, 861 N.E.2d 722, 287 Ill. Dec. 755 (1st Dist. 2004). The appellate court held that the Industrial Commission improperly admitted hospital records without proper certification under section 16 of the Act. Further, records of treating physicians prepared at the request of claimant’s attorney are subject to a hearsay objection and are not admissible under Fencl-Tufo.

Circuit Court Bill of Discovery Held Improper - Back to Table of Contents - Back to WC Index

Walton v. Illinois Bell Telephone Co., 353 Ill. App. 3d 555, 818 N.E.2d 1242, 289 Ill. Dec. 39 (2d Dist. 2004). Claimant submitted himself to an independent medical exam with Dr. Gary Skaletzky who later reviewed a videotape and rendered an unfavorable opinion to the claimant. The employer refused to provide the claimant with a copy of the videotape so claimant filed an equitable bill of discovery in circuit court. In affirming the trial court’s dismissal of the bill of discovery, the appellate court noted that an equitable bill of discovery is an artifact of the era preceding the liberal allowance of discovery. Moreover, permitting the claimant to circumvent the Industrial Commission’s procedural rules could substantially undermine the intent of the Act.

Denial of Co-Worker’s Death Claim Upheld Despite Previous Finding of Causation - Back to Table of Contents - Back to WC Index

Setzekorn v. Industrial Comm’n, 353 Ill. App. 3d 1049, 820 N.E.2d 586, 289 Ill. Dec. 810 (5th Dist. 2004). Decedent’s surviving spouse claimed her husband’s death due to lung cancer was caused by his exposure to coal dust while employed by respondent. The decedent had previously obtained an award for co-workers pneumoconiosis and mild obstructive airways disease. The arbitrator and Industrial Commission denied death benefits, and the appellate court affirmed. It rejected claimant’s contention that lung cancer qualifies as a respirable disease under Section 1(d) of the Occupational Disease Act. It found that the Industrial Commission’s decision was not against the manifest weight of the evidence given the treating physician’s opinions and the general consensus that lung cancer is not related to coal dust exposure.

Appellate Court Reverses Award of TTD and Penalties Based on MMI - Back to Table of Contents - Back to WC Index

Nascote Industries v. Industrial Comm’n, 353 Ill. App. 3d 1067, 820 N.E.2d 570, 289 Ill. Dec. 794 (5th Dist. 2004). The appellate court reversed an award of TTD and penalties because the evidence showed that the claimant reached MMI in October of 2000. The Commission’s award of TTD after that date was reversed as were penalties for the failure to pay TTD. However, no credit was given to the respondent for TTD paid when the petitioner worked 20 hours per week. The benefits were considered maintenance during rehabilitation.

Lien Amount Controlled by Plain Language of Settlement Contract - Back to Table of Contents - Back to WC Index

Sheppard v. Rebidas, 354 Ill. App. 3d 330, 820 N.E.2d 1089, 290 Ill. Dec. 22 (1st Dist. 2004). Claimant settled three claims with his employer on three separate contracts. One settlement was for $50,000 and the other two were for $1 with an indication of no lost time. The claimant then filed and recovered $400,000 in a civil claim arising out of one of the accidents that settled for $1. The employer then asserted a lien in the amount of $90,000 claiming that all three cases were negotiated in unity and that some or most of the $50,000 settlement was attributed to the settlement contract that showed a settlement of $1. In quashing the lien, the court noted that the plain language of the settlement contract governed the amount of the lien. Therefore, the lien was quashed.

Intervening Motor Vehicle Accident Did Not Break Causal Connection Even Though It Caused a Failed Fusion - Back to Table of Contents - Back to WC Index

Vogel v. Industrial Comm’n, 354 Ill. App. 3d 780, 821 N.E.2d 807, 290 Ill. Dec. 495 (2d Dist. 2005). Claimant sustained an undisputed work injury and subsequently underwent a cervical fusion. While recovering from the fusion, he was involved in a motor vehicle accident that aggravated the fusion. The Industrial Commission found that the motor vehicle accident was an intervening cause and that the respondent was not liable for the failed fusion. The appellate court reversed and found that the motor vehicle accident did not break the causal connection between the work injury and the failed fusion because the claimant had not yet recovered from the first surgery. It held that the motor vehicle accident was not an intervening cause even if it caused the failed fusion because the failed fusion would not have occurred but for the work injury. It distinguished other cases where intervening causes were found based on the fact that these cases involved full recoveries from the work injury before the intervening injury whereas the claimant was still off and recovering in this case.

Wage Differential Award May Not be Set Aside More Than 30 Months After Award or Settlement - Back to Table of Contents - Back to WC Index

Cassens Transport Co. v. Illinois Industrial Comm’n, 354 Ill. App. 3d 807, 821 N.E.2d 1274, 290 Ill. Dec. 700 (4th Dist 2005). The employer sought to modify a wage differential award more than 30 months after the award had been entered under Section 8(d)1. The court ruled that any motion to modify the award must be brought under Section 19(h) within 30 months of the award and no such relief is allowable under Section 8(d)1. Therefore, the Motion to Modify the Award was dismissed with prejudice.

Illinois Has Jurisdiction over Injury in Florida Because the Claimant Was Hired in Illinois - Back to Table of Contents - Back to WC Index

Mahoney v. Industrial Comm’n, 355 Ill. App. 3d 267, 823 N.E.2d 110, 291 Ill. Dec. 100 (1st Dist. 2005). In 1969, the claimant was hired by United Airlines in Illinois. In 1993, the claimant was transferred to Florida and became a resident there. He was then injured in 1999 in Florida. The arbitrator and Industrial Commission found no jurisdiction in Illinois but the appellate court reversed. It held that the site of the contract for hire is the sole determinant of jurisdiction under the Act for injuries occurring outside of Illinois. The fact that there was a 30-year lapse in time between the claimant’s date of hire in Illinois and the fact that he changed his residence to Florida did not terminate jurisdiction in Illinois.

Circuit Court’s Assessment of 19(k) Penalties Reversed - Back to Table of Contents - Back to WC Index

Armour Swift-Eckrich v. Industrial Comm’n, 355 Ill. App. 3d 708, 823 N.E.2d 1103, 291 Ill. Dec. 517 (2d Dist. 2005). A decision of the arbitrator was filed on November 27, 2000, and neither party appealed. On March 14, 2001, the claimant filed a Petition for Penalties under Section 19(k) and 16 for failure to pay the award. On the same date, the employer sent payment of the award with interest via overnight mail to the claimant explaining that the award had not been previously paid due to personnel changes at the third-party administrator. The Industrial Commission denied claimant’s Petition for Penalties however the circuit court reversed and awarded attorney’s fees under Section 16(k) and penalties under Section 19(k) in the amount of 50 percent of the award. In reversing the circuit court, the appellate court noted that the delay of 78 days was not unusually long. Further, the voluntary payment of interest showed the employer’s conduct was not vexatious or intentional. Finally, the court noted that while penalties under Section 19(l) are mandatory, substantial penalties under Section 16 and 19(k) are discretionary and require a finding of factious or intentional refusal to pay which was not present in the instant case.

The Industrial Commission’s Finding of Co-Workers Pneumoconiosis Upheld - Back to Table of Contents - Back to WC Index

Peabody Coal Co. v. Industrial Comm’n, 355 Ill. App. 3d 879, 823 N.E.2d 1107, 291 Ill. Dec. 521 (5th Dist. 2005). Claimant worked for employer as a coal miner for 37 years. He retired in 1997 when the coal mine was shut down. The arbitrator denied benefits based on the respondent’s examining physician who concluded that the claimant’s condition of ill being was related to his 20-year smoking history. The Industrial Commission reversed, relying on the employee’s treating and examining physicians. The appellate court upheld the Industrial Commission decision finding that there was evidence in the record to support the Commission’s decision so that it was not against the manifest weight of the evidence.

Ghere Objection Overruled - Back to Table of Contents - Back to WC Index

Kishwaukee Community Hosp. v. Industrial Comm’n, 356 Ill. App. 3d 915, 828 N.E.2d 283, 293 Ill. Dec. 313 (2d Dist. 2005). Petitioner claimed bilateral carpal tunnel syndrome from allegedly repetitive work activities. Counsel for respondent objected to Dr. Glasgow’s causation opinion based on Ghere v. Industrial Comm’n, 278 Ill. App. 3d 840, 663 N.E.2d 1046, 215 Ill. Dec. 532 (4th Dist. 1996). In overruling the objection and allowing the testimony, the court noted that respondent knew in advance that claimant treated with Dr. Glasgow for carpal tunnel syndrome, and thus, should not have been surprised that the doctor rendered opinions regarding causation. Absent some sort of surprise, the testimony was admissible.

Failure to Name Industrial Commission as Party on Notice of Appeal to Appellate Court Not Fatal to Jurisdiction - Back to Table of Contents - Back to WC Index

Boyd Elec. v. Dee, 356 Ill. App. 3d 851, 826 N.E.2d 493, 292 Ill. Dec. 352 (1st Dist. 2005). The arbitrator and Industrial Commission found claimant’s bilateral avascularacrosis causally-related connected to a work injury and awarded benefits. The employer appealed, challenging the Industrial Commission finding of accidental injury and medical causation. The employer named the Industrial Commission as a party to its Notice of Appeal to the circuit court but failed to list the Industrial Commission as a party on the Notice of Appeal to the appellate court. The appellate court ruled that the failure to list the Industrial Commission as a named party on the Notice of Appeal to the appellate court is not fatal to its exercise of jurisdiction over the claim because the Industrial Commission is not an indispensable party. The remaining findings of the Industrial Commission were affirmed.

Appellate Court Limits Inquiry to Medical Causation in Repetitive Trauma Analysis - Back to Table of Contents - Back to WC Index

Edward Hines Precision Components v. Industrial Comm’n, 356 Ill. App. 3d 186, 825 N.E.2d 773, 292 Ill. Dec. 185 (2d Dist. 2005). Claimant delivered trusses that were secured to a flat bed truck with an average of ten straps per load. The straps were tightened with either a wrench or a pry bar. The claimant testified that tightening the straps required the application of substantial force so that the load would not shift when the truck was moving. The arbitrator found that claimant failed to prove a causal connection between his condition of ill being and his employment activities. The Industrial Commission reversed and found the case compensable. The employer argued that the claimant spent less than 10 percent and probably closer to 2 percent of his work day tying down loads. In affirming the Industrial Commission, the appellate court noted that there is no legal requirement that a certain percentage of the work day be spent on a task in order to support a finding of repetitive trauma. It held that the issue for the Industrial Commission to decide was whether the job activity was repeated sufficiently to cause the injury. The repetitive nature of the task performed by the claimant is relevant only to the question of whether the task caused the condition. The appellate court concluded that the Industrial Commission’s finding of causation was not against the manifest weight of the evidence.

Settlement Contract Must Retain Section 5(b) Lien Rights - Back to Table of Contents - Back to WC Index

Borrowman v. Prastein, 356 Ill. App. 3d 546, 826 N.E.2d 600, 292 Ill. Dec. 459 (4th Dist. 2005). The claimant and his employer settled his workers’ compensation claim for $230,000. At the time the case was settled, claimant was pursuing a medical malpractice claim that related to the work-related injury. Upon settlement of the medical malpractice claim, the employer filed a Motion to Adjudicate the Lien in circuit court. The circuit court held that the employer was entitled to be reimbursed $175,000 from the medical malpractice settlement. On appeal, the claimant argued that the Defendant was not entitled to reimbursement because the settlement contract concluded all issues for $230,000. The appellate court agreed finding that the employer’s failure to retain its lien rights in the settlement contract amounted to a waiver of its rights under Section 5(b).

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