REPETITIVE TRAUMA CASES - Back to Table of Contents - Back to WC Index

In Three "D" Discount Store v. Industrial Comm'n, 198 Ill. App. 3d 43 (4th Dist. 1990), the appellate court modified its Opinion upon denial of rehearing and Justice Barry delivered the opinion of the court altering its decision previously filed on February 23, 1989. This case involved a 46 year old petitioner who claimed repetitive trauma caused carpal tunnel syndrome in his hands. The petitioner failed to establish any specific and identifiable date as to when the injury manifested itself. The previous court found that the evidence showed that the injury could have manifested itself at any time between January, 1984 and August 10, 1984. It held in its decision of February 23, 1989, that the petitioner had failed to establish an identifiable date on which the injury manifested itself. The appellate court in February reversed the Commission decision finding it against the manifest weight of the evidence. Upon rehearing, Justice Barry held that the petitioner is still required to prove a precise and identifiable date when the accidental injury manifested itself. The definition of manifested itself remains the date on which both the facts of the injury and causal relationship of the injury to the petitioner's employment would have become plainly apparent to a reasonable person. This test is an objective one and applying these tests to these facts, Justice Barry and the court reconsidered their previous position and now hold in favor of the petitioner.

Reciting the facts in detail, Justice Barry found that it was not until July 10 when the petitioner met with Dr. McKechnie that it became clear that the petitioner's condition necessitated surgery. The court reviewed deposition testimony and found that it could be reasonably inferred that the petitioner first learned that his condition of ill-being was work-related at some point between July 10 and the first of August, 1984. The court applied the reasonable person test to these facts and determined that although the petitioner persisted in employment until August 10, a reasonable person in these circumstances would have been on notice that the condition was both work-related and medically disabling on July 10, 1984.

The court reasoned that an employee who continues to work on a regular basis despite his own progressive ill-being should not be punished for merely trying to perform his duties without complaint. The court emphasized that the peculiar facts of each case must be closely analyzed in repetitive trauma cases to be fair to the employee, employer and employer's compensation carrier.

This case provides the arbitrators and commissioners with an even broader ability to "reasonably infer" as to when the petitioner first learned that his condition of ill-being was work-related.

LIEN CASES - Back to Table of Contents - Back to WC Index

Zuber v. Illinois Power, 135 Ill. 2d 407, 553 N.E.2d 385 (1990), held that reimbursement under section 5(b) of the Illinois Workers' Compensation Act is not limited to amounts accrued by the time of the judgment or settlement of the common law action but rather include as well the future compensation payments the employer is relieved from making by reason of the third-party recovery.

In this case, the plaintiff filed a common law action and settled it for a lump sum payment of $302,466.54 and an annuity of $900.00 per month for life. The Workers' Compensation carrier stopped paying death benefits upon the settlement of the common law action and claimed a lien of $73,128.63 representing benefits paid up to the date of the settlement. There was no dispute as to the employer's recovery of 75 percent of its lien for past payments, and that a 25 percent attorney fee was assessed against the lien amounts. The court further established the pro rata share of expenses at the same proportion as the amount of the lien bore to the total lump sum payment and costs of the annuity recovered in the third-party action.

The plaintiff appealed from the circuit court's order apportioning fees and costs. The appellate court agreed with the plaintiff that the fees and costs were recoverable under section 5(b) must be assessed not only against the past compensation benefits paid by the employer for which the employer may claim a lien but also against thefuture compensation benefits the employer is relieved from paying as a result of the third-party recovery.

The court interpreted section 5(b) and determined that the references in section 5(b) to the employer's reimbursement and to the repayment to the employer of "the amount of compensation paid or to be paid" denote one and the same thing. The court held that an employer benefits from the third-party recovery both when it is repaid workers' compensation benefits already paid to the plaintiff, and when it is relieved of its obligation to make compensation payments in the future. The court felt it was appropriate to impose fees and costs in relation to both benefits and held that section 5(b) was intended to achieve that end.

DiVarco v. W. J. Lazynski, Inc., (Ill. App. LEXIS 820) (1st Dist. 1990), involved a Structural Work Act claim by the widow of a construction worker who was killed on the job. At the time the common law action was settled, only the widow was a plaintiff and her only theory of liability was under the Structural Work Act. The decedent's employer sought to assert a lien against the workers' compensation benefits paid to the widow. The trial court held the lien did not attach to the settlement and the First District affirmed. It determined the widow's cause of action under the Workers' Compensation Act is derivative based upon the rights of the employee to be compensated by his employer. In contrast, the widow's cause of action under the Structural Work Act is an independent cause of action, personal to the widow and based upon her loss of support. As the only plaintiff in the action was the employee's widow asserting her own personal claim rather than the personal representative of decedent's estate, the lien did not attach.

Koshel v. Public Building Commission of the City of Chicago, et al., Ill. App. LEXIS 765 (1st Dist. 1990), involved a claimant that was injured when she fell on a newly waxed floor at the daily center. The petitioner was an employee of the Circuit Clerk of Cook County. The claim for compensation benefits was filed against the employer and benefits were paid. A personal injury suit was also filed and settled. The employer asserted its lien on the proceeds of the settlement, and the plaintiff objected arguing she was not an employee of Cook County but rather was an employee of the Clerk of the Circuit Court. The court held that Cook County, although not a direct employer of the employee in the Circuit Clerk's office, it nevertheless had a right to assert its lien. The court found that the County Board had a legal obligation to pay workers' compensation to employees of the Circuit Clerk's office, and their lien for those monies attached to the proceeds of a personal injury negligence action.

"ARISING OUT OF" and "IN THE COURSE OF" - Back to Table of Contents - Back to WC Index

Witt v. Industrial Comm'n and Chicago Transit Authority, 195 Ill. App. 3d 679, 552 N.E.2d 1183 (1st Dist. 1990), involved a petitioner who suffered a minor injury when his CTA patrol car was rear-ended. Approximately eight months later, he again injured his back when he picked up a box from the trunk of his squad car. A third injury occurred three weeks after the petitioner returned to work after the second incident. He suffered back and leg pain after stepping in a hole. The first and third accidents were stipulated but the second accident was challenged, and the history did not refer to the time, place nor mention the workplace.

The Commission refused to adopt Dr. Gorski's opinion based on the lack of information provided him concerning her ten years of medical records which evidence problems prior to 1980. The court held that the evidence permitted the Commission to conclude that the permanent disability of drop foot or continued back pain was not related to employment. The doctor's opinion on causation was one which was not fully informed opinion. He did not know the petitioner's prior medical problems, and the petitioner conveniently forgot about prior medical problems. Based on that presentation, the arbitrator and the Commission was free to discount that testimony and deny causal relationship.

Brady v. Industrial Comm'n, 192 Ill. App. 3d 1, 548 N.E. 2d 441, 139 Ill. Dec. 168 (3d Dist. 1990), held the petitioner failed to prove it sustained accidental injuries arising out of his employment. The Commission affirmed the decision of the arbitrator which decision was affirmed by the appellate court. The court noted that the arbitrator found that there was no dispute that the petitioner at the time of the accident was in the course of his employment since he was an estimating engineer and was at his place of employment in a metal building 47 feet from a heavily travelled roadway when he was injured when a truck loaded with gravel struck the respondent's building as claimant worked inside. The court decided that the arbitrator's conclusion that the petitioner's employment did not place him in an increased risk beyond that to which the general public was subjected was correct. The court held that the location of petitioner's workplace and its adjacency to the heavily travelled roadway was only incidental in the chain of circumstances that caused petitioner's injury. The environment of the employment was not a contributing factor to petitioner's injury, the but-for aspect notwithstanding. The court held that reasonable men could conclude that members of the general public outside respondent's building were equally exposed to the hazard of being struck by the disabled truck. In light of all the evidence, the court ruled that the conditions of the claimant's employment did not increase his risk of injury beyond that to which the general public in that vicinity was exposed.

American Electric Cordsets v. Industrial Comm'n, 198 Ill. App. 3d 87, 555 N.E.2d 823 (2d Dist. 1990), held that uncontradicted testimony demonstrated the claimant who slipped and fell in her employer's parking lot while returning to work from a lunch break did arise out of and in the course of her employment. The appellate court in affirming the award of compensability distinguished the case of Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d 52 (1989), noting that it was not controlling under these facts. In Caterpillar, the Supreme Court held that merely stepping off a curb and twisting an ankle rather than slipping, tripping or falling was not compensable. In the instant case, the claimant slipped on the surface of the parking lot which was under the control of the employer. There was no evidence in this case that members of the public regularly used the employer's lot. Furthermore, the employer offered no evidence to rebut the inference that the pavement's condition caused the fall. The petitioner alleged that the condition of the asphalt upon which she fell was slippery and greasy.

A claimant will succeed despite the Caterpillar decision when they fall at work or in a parking lot if the employer has control over the condition of the premises, and the petitioner fell because of that hazardous condition. Furthermore, it is significant whether the parking lot where the fall occurred was open to the public generally or not.

Sekora v. Industrial Comm'n, Ill. App. LEXIS 854 (2d Dist. 1990), held that petitioner's broken leg sustained during unauthorized horseplay on a motorcycle was not a compensable injury. The trial court properly affirmed the Commission's finding that petitioner's horseplay was outside the scope of employment at the time of his injury. The petitioner car salesman was in the process of returning all-terrain cycles to a service garage when the vehicle flipped over injuring him. He had been given instructions that the vehicles should be walked back and not driven. The petitioner argued that the respondent had acquiesced in the custom of employees riding the vehicles in the field to attract customers and argued that this riding experience benefitted the employer such that the activity did arise out of employment. The appellate court held that the Commission could find that the two men one of whom who was on duty and the other who was not, were engaged in horseplay and not working or trying to gain knowledge of the vehicle's operation. On that factual determination, the court held that the injury did not arise out of petitioner's employment.

Lubin Management Co. v. Industrial Comm'n, Ill. App. LEXIS 917 (1st Dist. 1990), held that a petitioner employed as a maintenance manager of an apartment complex who was injured in an auto accident occurring off premises while assisting a tenant did arise out of and in the course of employment, and the Commission's decision finding the injury compensable was not against the manifest weight of the evidence which showed the employer was aware and gave implied approval of the petitioner's action. There was evidence that the petitioner had assisted tenants who were off the premises and noted that he did so in the interest of maintaining good landlord tenant relations. There was no evidence that the employer instructed the petitioner to discontinue providing such assistance to the tenants after being informed that the activity took place.

Hopkins v. Industrial Comm'n, 196 Ill. App. 3d 347, 553 N.E.2d 732, 143 Ill. Dec. 25 (3d Dist. 1990), held that a back injury to an employee occurring when he turned in a chair did not arise out of the petitioner's employment. The court held that there was no suggestion that the chair was defective or unusual in any way. The court held that more is required than the fact that the accident occurred at claimant's workplace.

Adams Truck Lines v. Industrial Comm'n, 193 Ill. App. 3d 814, 550 N.E.2d 1148 (3d Dist. 1990), involved a claimant who submitted an application for employment with the respondent in which he denied ever having suffered a job injury or back injury or ever receiving workers' compensation benefits. A month after being hired, he allegedly suffered an unwitnessed injury to his back. The employer contested petitioner's claim for benefits. In the course of the hearing, the petitioner admitted contrary to his employment application that he had twice before suffered back injuries for which he had received benefits. Following the hearing, the arbitrator denied benefits to the petitioner finding he had failed to prove an accidental injury that arose out of and in the course of employment. The petitioner appealed the decision to the Commission and no new evidence was presented. The Commission reversed and awarded benefits. The employer appealed and contended the falsified employment application impeached the plaintiff's testimony and cast doubt on his credibility. The appellate court affirmed the award and held that the plaintiff's denial on his employment application of receiving workers' compensation benefits was a collateral matter and could not be used to impeach him. The court ignored the credibility issue and focused on whether the current incident was work-related or not. The appellate court saw no reason to disturb the Commission's decision to believe claimant's testimony.

Another interesting feature to the Adams Truck Lines case is the fact that there were specially concurring opinions concerning the standards of review. Justice Barry and Justice McCullough drafted specially concurring opinions suggesting to the Commission that they now apply a "due deference standard of review" to its arbitrator's decisions taking into account that in most cases only the arbitrators actually view the witnesses and hear testimony. This recommendation was made with reference to the increasing case load and lengthening delay between filing of cases and final resolution. Despite that recommendation, the opinions of Justices McCullough and Barry were concurring ones on the facts in this case.

EXCLUSIVE REMEDY - Back to Table of Contents - Back to WC Index

Dildine v. Hunt Transportation, Inc., 196 Ill. App. 3d 392, 553 N.E.2d 801, 143 Ill. Dec. 94 (3d Dist. 1990), held that an injured mechanic was a joint employee of two wholly-owned subsidiary corporations as a matter of law. The common law negligence actions against either were barred by the exclusivity provisions of the Act. The evidence showed that both companies were wholly-owned subsidiaries of a holding company which filed consolidated tax returns on behalf of the companies. The defendant had a workers' compensation policy that listed the employer corporation as an additional insured which had been the policy under which the benefits were paid to the petitioner. The manager of the holding company was able to give direction to the employees of both subsidiaries and occasionally plaintiff would do work for the other company. Based on these facts, the trial court held the plaintiff was a joint employee. The most important consideration in determining joint employment is the right to control the individual. Applying that test to this case, the court concluded the plaintiff was a joint employee of both companies.

Bragado v. Cherry Electrical Products Corp., 191 Ill. App. 3d 136, 547 N.E.2d 643 (2d Dist. 1989), held that the Workers' Compensation Act did not preclude a former employee's suit for monetary damages relating to pain, suffering, and aggravation of her injury when her former employer allegedly coerced her to return to work prematurely by cutting off her temporary total disability benefits. The court held that the retaliatory discharge claim could be brought against the former supervisors as well as the former employer but held that the retaliatory discharge claim could not be maintained against the company which administered the Workers' Compensation benefits program since there was no evidence that the company had authority to discharge the employee. The petitioner and the court made it clear that the common law action was not an attempt to pursue TTD benefits; rather the action taken relative to those benefits under the Act constituted a retaliation for her pursuit of compensation under the Act. The court held that whether the plaintiff was entitled to TTD or whether the defendant's use of a doctor's release as a pretext to terminate benefits are clearly issues to be decided before the Industrial Commission. Whether the defendants discharged plaintiff to retaliate for her assertion of rights under the Act or use the termination of benefits as a means of coercing her to forego her other rights are issues to be decided in the circuit court.

Carrillo v. Hamling, Ill. App. LEXIS 884 (2d Dist. 1990), held that the defendant's status as plaintiff's co-worker does not shield the defendant from liability for plaintiff's injuries resulting from defendant's intentional acts under the exclusivity provision of the Workers' Compensation Act. In this instance, the plaintiff police officer was summoned to defendant's residence regarding a domestic dispute, and the defendant struck the plaintiff during an altercation. The defendant claimed that police officers were on duty around the clock and attempted to use his status as a co-employee to bar plaintiff's action. The court held that this status could not be used as a shield to insulate the defendant from liability.

Gonzalez v. PreStress Engineering Corp., 194 Ill. App. 3d 819, 551 N.E.2d 793 (4th Dist. 1990), held that where a petitioner files a claim and loses, and the employer decides to terminate the petitioner because he falsely reported the injury as work-related, the employer was not held liable for retaliatory discharge. The petitioner tried to show that the employer terminated employees who filed workers' compensation claims, but the employer was able to demonstrate that many of these employees were immigrant workers who failed to report to work after seasonal layoffs.

DEATH CASES - Back to Table of Contents - Back to WC Index

Dillon v. Industrial Comm'n, 195 Ill. App. 3d 599, 552 N.E.2d 1082 (1st Dist. 1990), held that while an illegitimate child of the deceased employee may recover under the Workers' Compensation Act under some circumstances, the award of compensation is not to be made to an illegitimate child unless paternity is proved. The court held that the Industrial Commission decision denying the claim for compensation was supported where the claimant failed to prove paternity. There was no evidence such as blood tests excluding the husband of the daughter's mother from paternity. The court relied heavily on the presumption that if the woman is lawfully married at the time a child is born to her, there is a strong presumption that the lawful husband is the father of the child. In the absence of blood tests excluding that husband from paternity, the presumption of his paternity had not been overcome. The Commission properly concluded that the claimant failed to prove the minor child was the daughter of the decedent.

Owens Corning Fiberglas Corp. v. Industrial Comm'n, Ill. App. LEXIS 874 (4th Dist. 1990), held that the widow had an independent cause of action for death benefits under the Illinois Workers' Occupational Diseases Act separate from an award of disability benefits to the decedent. In this case, the claimant was awarded permanent partial disability benefits (PPD) for asbestosis prior to his death. At his death, the wife's claim for death benefits was created and the appellate court held that the claimant had an independent cause of action for the death benefits separate from the decedent's disability benefits. This was reinforced by the fact the decedent's disability claim brought on during his lifetime was for asbestosis while the claimant's claim for death benefits was for the decedent's death due to mesothelioma.

EMPLOYER/EMPLOYEE RELATIONSHIP CASES - Back to Table of Contents - Back to WC Index

Earley v. Industrial Comm'n, 197 Ill. App. 3d 309, 553 N.E.2d 1112 (4th Dist. 1990), held that where there is ample evidence to support petitioner's employment status as employee and an equal amount to establish an independent contractor status, the Industrial Commission's findings will not be disturbed. The court held that because the facts of the case were susceptible to either interpretation, it was the Industrial Commission's providence to determine the claimant's employment status, and if the determination was not against the manifest weight of the evidence, it would not be overturned.

Young American Realty v. Industrial Comm'n, Ill. App. LEXIS 917 (4th Dist. 1990), held that a carpenter was an employee rather than an independent contractor where the respondent exerted a significant degree of control over the means by which the petitioner accomplished his work. Although the petitioner controlled the details of the project, the evidence supported the conclusion that the respondent more than merely hired the petitioner to complete the project. The respondent directly oversaw the project on a daily basis. This was the decision of the appellate court despite other factors which indicated an independent contractor relationship such as a failure of the respondent to deduct withholding taxes from social security and a failure to provide fringe benefits or to indicate whether the petitioner would be engaged for future projects. The court held those criteria as not decisive.

County of Tazewell v. Industrial Comm'n, 193 Ill. App. 3d 309, 549 N.E.2d 805, 140 Ill. Dec. 154 (4th Dist. 1989), held that where the county had the right to direct and control the manner of work that a snow plow driver performed evidenced the control necessary to make the county a borrowing employer for purposes of workers' compensation benefits. The exercise of the right to direct and control the manner of the performance of the work established the employer/employee relationship.

19(b)(1) CASES - Back to Table of Contents - Back to WC Index

E.L. Kaplan Trucking Co., Inc. v. Industrial Comm'n, 195 Ill. App. 3d 640, 553 N.E.2d 37 (1st Dist. 1990), held that in order to recover on a 19(b)(1) petition, the petitioner must show that he is not receiving TTD or medical under section 8(a), and is currently unable to work. If both elements cannot be established, then the claimant is not eligible to proceed under section 19(b).

The case involved a petition under 19(b) following a back injury sustained by an employee on July 14, 1986. He was examined by a doctor and missed a few days of work. He returned to work and reinjured his back. On that day, he was terminated. He received treatment and was released by his doctor to return to work but to avoid heavy lifting. The arbitrator, in response to the petition for expedited benefits, awarded TTD and medical which was affirmed by the Commission. The circuit court confirmed and the employer appealed. The First District reversed. The Act required that the claimant show a current inability to work in order to be entitled to emergency and expedited benefits under section 19(b). In this instance, the claimant failed to show a current inability to work, and in fact, presented evidence that he was working when the petition was filed.

Nelson v. Industrial Comm'n, 194 Ill. App. 3d 10, 550 N.E.2d 1047 (1st Dist. 1990), held that the Industrial Commission did not lose jurisdiction to modify an award where it failed to render a written decision within 90 days after the petition for review was filed under section 19(b)(1). The appellate court held that the time limits for a decision by the Industrial Commission following a petition for review of decision were directory rather than mandatory, and the Commission did not lose jurisdiction to modify the arbitrator's award by failing to enter the written decision within the statutory time period.

CALCULATION OF INTEREST ON AWARD CASES - Back to Table of Contents - Back to WC Index

Hughes v. Industrial Comm'n, 196 Ill. App. 3d 143, 553 N.E.2d 113 (4th Dist. 1990), held that section 19(n) does not provide for interest on amounts accruing after the arbitrator's award but before the date of payment.

Pierce v. Tee-Pak, Inc., 196 Ill. App. 3d 544, 553 N.E.2d 1104 (4th Dist. 1990), held for a petitioner deciding that interest under section 19(n) is payable on benefits that accrue to the date of arbitration, and that interest pursuant to the Code of Civil Procedure, section 2-1303 calculated on benefits accrued after the arbitrator's decision applied retroactively on an award accepted in 1986.

Section 19(n) interest will accrue on benefits which exist as of the date of the arbitrator's decision. Section 2-1303 interest applies to benefits that accrue after the arbitrator's decision. Interest is then calculated on the sum from the date it accrues until paid at section 2-1303 interest rates.

CAUSAL CONNECTION CASES - Back to Table of Contents - Back to WC Index

Antonopoulos v. Industrial Comm'n, 195 Ill. App. 3d 689, 552 N.E.2d 1190 (1st Dist. 1990), is another example of the appellate court's deference to the Commission's findings on causal connection. The court held that the question of causal connection is one within the unique providence of the Industrial Commission and will not be disturbed unless it is contrary to the manifest weight of the evidence. In this case, there was conflicting medical opinions as to whether there was a causal relationship between the work incident and petitioner's condition of ill-being. The appellate court held that there was ample and credible medical evidence in the record to support the Commission's determination of no causal relationship. Deference was given to the Commission's determination given the conflicting medical reports.

Once an arbitrator and the Commission decide which set of medical opinions are to be accepted, the decision will not be reversed even if it can be argued that the decision is against the manifest weight of the evidence. In the instant case, the evidence was conflicting as to whether the petitioner's injuries, dizzy spells, and high blood pressure and ear aches were the result of the blow to the head or due to an infectious disease.

In summary, there was enough medical testimony on either side for the Commission to pick one and not have the decision set aside.

McDaniel v. Industrial Comm'n, Ill. App. LEXIS 590 (1st Dist. 1990), held that the Industrial Commission's decision that the petitioner's mental problems were not caused or aggravated by her work injury would not be overturned. The court again deferred to the Industrial Commission's province to determine medical causation issues. In the instant case, a doctor testified that claimant's knee injury had caused her mental disability while another doctor testified that the soft tissue injury such as the petitioner suffered was not the cause of such psychological disability. The testimony of two psychiatrists on whether the knee injury had caused her mental disability were conflicting. The arbitrator decided to accept the doctor who testified that her mental disability was not causally connected to the work accident. The Commission adopted the arbitrator's finding and rejected the other doctor's testimony on causation.

Ludwig v. Ottawa Industrial Sand Co., 192 Ill. App. 3d 729, 549 N.E.2d 1 (3d Dist. 1989), held that evidence concerning an employee's stressful working conditions and his physical exertion on the date prior to his death was sufficient to establish causal connection between his employment and his fatal myocardial infarction. The appellate court reversed an Industrial Commission denial of benefits for the fatal myocardial infarction. The court held that the medical opinion in the record that the stressful work situation could contribute to the decedent's death was sufficient for causation. The court restated the rule in heart attack cases that a preexisting heart condition does not preclude an award under the Workers' Compensation Act. The only proof required to establish causal relationship such that a heart attack is work-related is that the employee show that the stress of the employee's work was one causative factor. He need not exclude every other possible contributing factor. There was evidence in this case that the petitioner had been working very hard and suffered stress as a result of increased work pressures several months before his death and suffered stress from unusually heavy physical exertion on the day before his death.

Heart attack cases are liberally construed by the Industrial Commission and appellate court as to causation. If work exertion whether physical or emotional can be established by medical opinion to be one causative factor, benefits will be awarded despite a preexisting heart condition or other more likely contributing factors.

Frigo v. Illinois Industrial Comm'n and Kelly Beverly Plumbing, Ill. App. LEXIS 836 (1st Dist. 1990), held that a denial of workers' compensation benefits was proper where the evidence supported no disability although the accident was work-related. The arbitrator found that the condition of ill-being was the result of a nonwork-related accident which occurred 16 months later. The evidence revealed that the petitioner continued to work for 16 months without complaint to a physician. The medical opinion in the case suggested no causal relationship between the work accident and the subsequent need for surgery in 1988. The Commission pointed to the January 4, 1988, emergency room records indicating the petitioner fell in a hole on the previous day while hunting. This subsequent accident broke any causal link between the original incident and the claimant's present condition of ill-being.

The Industrial Commission and appellate courts will sustain defenses on causal relationship where sufficient time has passed between resolution of symptoms related to the original accident, and where the petitioner has received no medical attention and continued to work during the intervening period. The petitioner was unable to connect his present condition of ill-being to a job injury which occurred 16 months before where he had an intervening incident while hunting.

8(d)(1) WAGE DIFFERENTIAL CASES - Back to Table of Contents - Back to WC Index

Durfee v. Industrial Comm'n, 195 Ill. App. 3d 886, 533 N.E.2d 8 (5th Dist. 1990), held that an award for wage differential where the petitioner claimed loss of earnings was not warranted where the evidence indicated the petitioner had voluntarily abandoned his regular and original field of employment as an equipment repairman in favor of religious work.

The claimant was awarded 10 percent permanent disability as a result of a groin muscle injury and brought a suit challenging the Industrial Commission decision denying him a wage differential under section 8(d)(1) of the Act. The appellate court held that the record revealed a physician had suggested that the petitioner attempt a work trial and place no restrictions on the petitioner during that work trial period. The petitioner did not attempt to return to work but elected to remain in a job which he enjoyed and which coincided with his clerical interests. Despite the fact that the petitioner claimed that this was the best job he could find, there was no evidence that he attempted to obtain a position as a computer operator or any other form of employment. The court held that the Commission could have reasonably concluded that the petitioner, while having suffered an injury, had not shown a loss of earning capacity under section 8(d)(1).

Before a petitioner can recover under 8(d)(1), he must establish that he has attempted to return to work at his prior job and could not perform the job. After establishing that initial requirement, he must show that he has obtained the best job which he can do before an 8(d)(1) will be entered.

MISCELLANEOUS CASES - Back to Table of Contents - Back to WC Index

Beasley v. Industrial Comm'n, Ill. App. LEXIS 838 (5th Dist. 1990), held that petitioner's failure to present a receipt showing payment of the probable costs of record pursuant to section 19(f)(1), deprived the circuit court of subject matter jurisdiction.

Gulf Interstate Geophysical/Gulf Interstate Piping v. Industrial Comm'n, 198 Ill. App. 3d 307 (5th Dist. 1990), held that a petitioner could pursue a supplemental award in Illinois for work-related injuries even though he previously received benefits under the Indiana Workers' Compensation statute.

In this case, petitioner was working in Indiana pursuant to an Illinois contract of employment. The petitioner filed and settled in Indiana, and the settlement stated that this was a full and final settlement. The petitioner subsequently filed in Illinois. The respondent objected on the grounds that the Indiana settlement precluded the petitioner from filing an Illinois claim, and that Illinois was without jurisdiction.

The court found that the state has no legitimate interest in precluding another state from granting a supplemental compensation award when the second state would have had the power to apply its workers' compensation law originally. The only exception is where there is some unmistakable language by the state legislature or judiciary which would bar filing a compensation claim in another state. A settlement contract that this is a full and final settlement does not affect the right to bring the action in another state. The court did hold that the second recovery is supplemental, and that the petitioner must provide a credit to the respondent for payments made in the first state.

Presson v. Industrial Comm'n, Ill. App. LEXIS 770 (5th Dist. 1990), held that the Commission's decision to reduce petitioner's claim for TTD and permanency was not against the weight of evidence where the petitioner, although able to do so, refused to perform less strenuous work offered to her.

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