AVERAGE WEEKLY WAGE - Back to Table of Contents - Back to WC Index

R. A. Cullinan & Sons v. Industrial Comm'n, 1991 Ill. App. LEXIS 1313, 575 N.E.2d 1240, 159 Ill. Dec. 180 (3d Dist. 1991), held that since claimant was a seasonal worker, his overtime wages are not considered in calculating the average wage. The court applied the Illinois-Iowa Blacktop, Inc. v. Industrial Comm'n, 180 Ill. App. 3d 885, 536 N.E.2d 1008, 129 Ill. Dec. 958 (3d Dist. 1989) case holding it was error for the Commission to have included claimant's overtime wages in its average wage calculation.

REPETITIVE TRAUMA/ARISING OUT OF - Back to Table of Contents - Back to WC Index

Caterpillar Tractor Co. v. Industrial Comm'n, 215 Ill. App. 3d 229, 574 N.E. 2d 1198, 158 Ill. Dec. 805 (4th Dist. 1991), held that the Industrial Commission on review is free to consider a new theory of recovery sua sponte. The claimant did not present a repetitive trauma theory at arbitration. The Commission sua sponte considered the theory for the first time on review and found the evidence presented warranted a reversal of the arbitrator's denial of benefits.

The court held that pleadings and proceedings in workers' compensation cases are informal and designed to expedite and achieve a right result. It held the Commission must decide cases on the evidence presented and is not restricted to the information provided on the form. The Commission's decision in this case was decided on evidence admitted and not on a specific theory presented. The court found that the respondent's rights were not unduly prejudiced by the Commission's determination that the petitioner was entitled to benefits under a repetitive trauma theory.

The court found that a medical report of Dr. Conner was sufficient to alert the respondent to the fact that claimant's repetitive overhead work aggravated his preexisting condition. There was also a disability form completed by the plaintiff which claimed the repetitive nature of the work was responsible for his injury. Based on these documents, the court found that the respondent was aware of evidence of repetitive trauma and failed to refute these facts despite advance knowledge of the evidence. On this basis, the appellate court refused to reverse the Commission's decision awarding benefits.

On any claim where repetitive trauma is mentioned in any document, report or form, the employer must marshal evidence and testimony to refute the repetitive trauma theory. If such comments are ignored, the Commission on review can award benefits based upon that evidence even if the petitioner does not raise it at arbitration. The court has given the Industrial Commission broad authority to decide a case as it sees fit and if there is such evidence in the record, the appellate court will not interfere.

Peabody Coal Co. v. Industrial Comm'n, 213 Ill. App. 3d 64, 571 N.E.2d 1182, 157 Ill. Dec. 163 (5th Dist. 1991), held that the arbitrator's finding of causal connection based upon the treating physician's testimony is not against the manifest weight of the evidence and the appellate court will not disturb such a finding despite the long history of prior back problems and surgeries. The IME physician found that abnormalities revealed on an MRI scan were from the previous surgeries and not the result of the acute strain claimant suffered while entering a scoop. The treating physician felt that the problems the petitioner had following the subject injury were based upon claimant's pain following the injury, the physical examination of the claimant and the history given by the claimant.

The treating physician's opinions based upon petitioner's account of symptomatology will be affirmed despite a qualified IME physician's opinion to the contrary. The arbitrator is free to choose between the treating physician and the IME physician. If he chooses the treating physician, the decision will not be reversed on appeal.

Hansel & Gretel Day Care Center v. Industrial Comm'n, 215 Ill. App. 3d 284, 574 N.E.2d 1244, 158 Ill. Dec. 851 (3d Dist. 1991), reversed the award of benefits to the claimant who alleged an injury while attempting to stand from a small child's chair. The court held that the claimant failed to establish that she was exposed to a risk not common to the general public. The history she gave to the treating and IME physician was that her knee could lock or go out while she was walking, turning, getting out of bed or, in short, performing activities of everyday life. The appellate court reversed the Commission's finding that the incident aggravated claimant's preexisting condition. Cases involving exposures from trivial or common activities such as walking, standing or activities of everyday life can be successfully challenged on review.

Brady v. Louis Ruffolo & Sons Construction Co., 1991 Ill. LEXIS 36 (May 20, 1991), the Supreme Court reaffirmed its previous objection of the Positional Risk Doctrine holding that the location of the petitioner's work place and its adjacency to the heavily traveled roadway was only incidental to the chain of circumstances that caused the injury. 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 traveled roadway when he was injured when a truck loaded with gravel struck the respondent's building as the claimant worked inside. The court held that the record established that the triggering event, the collision between the truck and the car, occurred approximately 350 feet from the respondent's building on a snowy day when the roadway was icy and slippery. This decision affirmed the Third District's decision finding that the conditions of claimant's employment did not increase the risk of injury beyond that to which the general public in that vicinity was exposed.

Cary Fire Protection Dist. v. Industrial Comm'n, 211 Ill. App. 3d 20, 569 N.E.2d 1338, 155 Ill. Dec. 727 (2d Dist. 1991), held that a volunteer fireman injured during his participation in a water fight tournament sponsored by the Fireman's Association was an injury which did not arise out of and in the course of his employment despite the fact that his participation in the firefighting tournament enhanced the skills of the participating firefighters and the activity was similar to that engaged in at the fire district's training drills.

The Commission reversed the arbitrator's finding of compensability upon strict compliance of section 11. The arbitrator concluded that the injury did arise out of and in the course of his employment based upon the fact that the firefighting tournament was a useful training device, and that the fire chief was designated as president of the Association, and the program was an instrument for training and education of firefighters. The Industrial Commission's reversal was based upon the fact that the participants were not ordered nor were they assigned to participate in the tournament. The employer paid none of the costs of the program. The employer was a separate and distinct entity from the Association, although they shared many of the same members. The court held that the Commission's finding that by participating in the water fighting tournament, the claimant was engaged in a voluntary recreational activity under section 11.

Kozak v. Industrial Comm'n, 1991 Ill. App. LEXIS 1130 (1st Dist. 1991), held that the petitioners failed to prove that the decedent suffered fatal accidental injuries arising out of and in the course of his employment because the conduct giving rise to the death was a voluntary undertaking by the decedent. The decedent was participating in a tennis round, robin tournament conducted for the purpose of selecting a tennis team to represent the respondent corporation in a national invitational championship. The petitioner conceded the participation in the tennis program was voluntary but argued the program was not a recreational activity rather they contended it was a promotional activity which inured to the benefit of the employer. The court held that except for the payment of wages and expenses associated with the competition, the employer did not sponsor the activity. It was implicit in the Commission's decision that tennis was a recreational activity. Pursuant to section 11, such voluntary participation in a recreational activity renders an injury incurred during such participation noncompensable unless the employee is ordered or assigned by the employee to participate in the program.

Wheelan Funeral Home v. Industrial Comm'n, 208 Ill. App. 3d 832, 567 N.E.2d 662, 153 Ill. Dec. 704 (3d Dist 1991), reaffirmed the liberal view of compensation for heart attack claims in Illinois citing the long-standing rule that a preexisting heart condition does not preclude the Commission's finding that a heart attack is compensable. The court held that a funeral worker's employment requiring him to handle a very large funeral on the day before his heart attack was sufficient work-related stress to cause a heart attack. The court found that working a large funeral service, moving funeral cars during that service and the fact that his clothing became wet requiring a complete change of clothes before he returned to work was significant work-related stress. The treating physicians causally connected his work activities to the heart attack on an aggravation theory. This case is another example of the court's willingness to focus on occurrence testimony regarding the circumstances in the work place which could or might aggravate preexisting cardiovascular diseases and defects rather than placing emphasis on the scientific and medical evidence of causation.

R. A. Cullinan & Sons v. Industrial Comm'n, 1991 Ill. App. LEXIS 1313, 575 N.E.2d 1240, 159 Ill. Dec. 180 (3d Dist. 1991), held that the claimant was not the aggressor and therefore should be awarded benefits for injuries received in an altercation with a co-worker. The Industrial Commission reversed the arbitrator's finding that theclaimant was the aggressor accepting claimant's testimony that the aggressor threatened to kill the claimant and then hit him five to six times with a 20-inch steel pipe. The aggressor testified that he carried the metal pipe beside his leg because he did not know what he would encounter when he met the claimant. The aggressor denied that he struck the first blow and claimed that he did not threaten to kill the claimant. The appellate court refused to reverse the factual determination made by the Industrial Commission on this issue.

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

Kotecki v. Cyclops Welding Corp., 1991 Ill. LEXIS 26 (1991), held that contribution can be sought against an employer at common law but not in an amount greater than the workers' compensation liability of the employer. The court applied the Minnesota rule striking a balance between the interests of the employer as a participant in the workers' compensation system and the equitable interest of the third party plaintiff in not being forced to pay more than its established fault.

Knowles v. Mid-West Automation Systems, Inc., 211 Ill. App. 3d 682, 570 N.E.2d 484, 156 Ill. Dec. 8 (1st Dist. 1991), held that a subrogation suit filed on behalf of the workers' compensation carrier but in the name of the injured worker was properly dismissed since the suit could not be brought in the name of a dead person. The court noted the employer could have sued in its own name or in the name of the decedent's personal representative but chose not to do so and was barred by the statute of limitations. The First District affirmed rejecting the carrier's claim that the complaint was not filed by the worker but on behalf of the employer as a subrogation action. The complaint neither mentioned the Workers' Compensation Act, subsequent death of the employee or the employee's name. The case was dismissed because the plaintiff failed to comply with the threshold obligation of filing in the proper legal capacity within the statute of limitations.

Schroeder v. Morton Grove Police Pension Bd., et al., 1991 Ill. App. LEXIS 1553 (1st Dist. 1991), held that an injured municipal policeman's duty-related pension benefits could not be reduced by the amount of his workers' compensation settlement because he contributed to his pension fund before, during and after the repeal of section 1(b)(1) of the Act. Those contributions created an additional vested contract right which could not be constitutionally diminished or impaired.

The petitioner police officer was injured on duty in 1983. He was left mentally disabled and received a duty-related disability pension. He then filed a workers' compensation claim which was settled for $89,500. The pension board reduced his disability pension in the amount of the settlement under the Workers' Compensation Act. The court followed Gualano v. City of Des Plaines, 139 Ill. App. 3d 456, 487 N.E.2d 1050, 94 Ill. Dec. 173 (1st Dist. 1985), which defined vesting in a contractual sense. That court held the contractual relationship between the state and the employee is formed and governed by the actual terms of the contract or pension at the time the employee initially contributes to the system. Since duty-related pension benefits were based upon vested contractual rights, the pension board could not reduce the pension by the workers' compensation award.

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

Dobrydnia v. Indiana Group, Inc., 209 Ill. App. 3d 1038, 568 N.E.2d 1002, 154 Ill. Dec. 781 (3d Dist 1991), held that plaintiff's loss of consortium claim should be dismissed because her recovery is barred by section 5(a) of the Workers' Compensation Act. Plaintiff's husband was injured in the course of his employment. He brought an action to recover damages occasioned by the negligence of defendants and their failure to inspect a certain boiler. Plaintiffs also sought damages for loss of consortium. The defendants filed a motion to dismiss the loss of consortium claim as being barred by section 5(a). The court cited Fregeau v. Gillespie, 96 Ill. 2d 479, 451 N.E.2d 870, 71 Ill. Dec. 716 (1983), which held that the exclusivity provisions in section 5(a) operate not only to prohibit an action by an employee but also by anyone wholly or partially dependent upon him or anyone otherwise entitled to recover damages for such injury. The exclusivity provisions of section 5(a) preclude actions by a spouse of the employee for loss of consortium.

Copass v. Illinois Power Co., 211 Ill. App. 3d 205, 569 N.E.2d 1211, 155 Ill. Dec. 600 (4th Dist. 1991), held that in order to avoid the exclusive remedy rule in Illinois, a plaintiff must allege a specific intent to injure, not merely allege that the defendants believe their actions were substantially certain to cause injury. Illinois has adopted the specific intent to injure standard and rejects the substantial certainty standard, as do most states. The court held that an employee alleging an intentional tort against his employer or co-employee must allege that the defendant acted deliberately with specific intent to injure the employee. Under this standard the plaintiff's counts against the defendants failed.

Cashmore v. Builder's Square, Inc., 211 Ill. App. 3d 13, 569 N.E.2d 1353, 155 Ill. Dec. 742 (2d Dist. 1991), held that a common-law action against an employer could be maintained where the workers' compensation claim remained on appeal. The court held that the proceedings had not yet established whether the worker was entitled to benefits under the Act and the employer had not admitted workers' compensation exposure by merely paying medical bills. The court agreed that the employee's negligence action would be barred if he received compensation pursuant to an agreement executed and approved by the Commission, but there had been no such agreement executed in this case. The court held that an employee with a pending workers' compensation claim who is uncertain of his ground for recovery, can file a common-law action to toll the statute of limitations.

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

Hayden v. Industrial Comm'n, 214 Ill. App. 3d 749, 574 N.E.2d 99, 158 Ill. Dec. 305 (1st Dist. 1991), affirmed the Commission's determination that the petitioner was no longer entitled to temporary total disability and medical benefits because of the petitioner's unwillingness to cooperate with vocational placement. The court placed emphasis on the fact that the petitioner had reached a state of permanency and was released to return to work. The petitioner was engaged in household duties and was able to participate in some sports activities. Petitioner testified that he had not been doing anything lately to secure a job. He expressed no interest in a training position and declined to pursue a manager/trainee position. The only medical restriction petitioner had was that he not work at unprotected heights.

The court agreed with the Commission's determination that the petitioner's absence of good faith in cooperating with vocational rehab efforts justified termination of TTD benefits. The court cited the recent Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill. 2d 107, 561 N.E.2d 623, 149 Ill. Dec. 253 (3d Dist. 1990) case requiring a claimant make a good faith effort to cooperate with rehab efforts.

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

Myers v. International Harvester Co., 212 Ill. App. 3d 325, 570 N.E.2d 1189, 156 Ill. Dec. 467 (3d Dist. 1991), held that the judgment order entered against the defendant pursuant to section 19(g) was premature and improperly entered since proceedings for review were pending before the Industrial Commission.

The respondent had filed a request with the Industrial Commission seeking a hearing to resolve disputed issues concerning the cost and expense of a whirlpool ordered by the Commission concerning the plaintiff who was permanently and totally disabled. Prior to any hearings by the Commission, the plaintiff filed a complaint for judgment in the circuit court pursuant to section 19(g). On July 12, 1990, the court entered judgment in favor of the plaintiff and ordered the defendant to provide the plaintiff with an installed whirlpool. On appeal the defendant argued the trial court improperly entered judgment against it since proceedings for review were pending before the Commission. The court agreed holding that the statute specifically provides that entry of judgment is not possible when review proceedings are pending.

Rogers v. Industrial Comm'n, 213 Ill. App. 3d 837, 572 N.E.2d 375, 157 Ill. Dec. 306 (3d Dist. 1991), held that the prior settlement agreement was intended to cover all of claimant's disability arising from the drill press accident and as such the settlement contract precluded the claimant from subsequently pursuing an additional claim for a continuing shoulder condition. The claimant suffered an injury to the left hand and shoulder arising from an incident in June of 1982. The settlement contract referred to 35 percent of the left arm with a close out of sections 8(a) and 19(h). The settlement contracts had been altered in 1984 by some unknown party by interlineation. The word arm was scratched out and the word hand was handwritten in its place and the percentage modified from 35 to 25 percent. The dollar amount remained unchanged. There was testimony concerning an alleged call to Commissioner Black regarding changing the settlement refer to a hand, since the claimant was still having problems with the left shoulder.

The court held that the doctrine of res judicata applied despite claimant's argument that his hand and shoulder injuries are separate "claims" for which recovery could be sought. The court found that it was just as clear that both related injuries existed at the time of the settlement negotiations and the same facts and evidence were necessary to sustain award for either injury. Additionally, the settlement agreement specifically referred to waiving additional benefits for any future disability flowing from the incident itself rather than the particular injuries. The settlement contract barred any further claim. The court lacked jurisdiction to adjudicate claimant's application for adjustment of claim.

Settlement contract language should close out any and all injuries and disabilities that arose from the incident date or dates alleged. This case would support a closeout of all injuries whether specifically referred to or not.

Old Ben Coal Co. v. Industrial Comm'n, 1991 Ill. App. LEXIS 827 (5th Dist. 1991), held that the circuit court did not lack subject matter jurisdiction because the employer's written request for summons failed to name petitioner as a party in interest and failed to include his last known address as required by statute. The court found that the petitioner was named in the body of the request twice and in the caption once. The certificate of service named both the petitioner's attorneys of record. The court also found that the summons had sufficient information for the clerk to properly notify the claimant and his attorneys of the pending appeal and the claimant failed to show prejudice as a consequence of the employer's omission. The appellate court found that under the circumstances, the respondent was in substantial compliance with the material provisions of section 1 of the Act. The circuit court did have subject matter jurisdiction over the cause of action. Claimant's motion to quash was properly denied.

Chambers v. Industrial Comm'n, 213 Ill. App. 3d, 571 N.E.2d 1001, 156 Ill. Dec. 1021 (1st Dist. 1991), held that petitioner's written request for summons substantially complied with the requirements of section 19(f) despite the fact that the written request failed to name respondent's attorney of record, designate a return date or include the addresses of the named parties. The court found that the certificate of mailing did specifically name the parties of interest and the attorneys of record and included their addresses.

The trial court sua sponte questioned jurisdiction and dismissed the proceeding for lack of subject matter jurisdiction based upon those failures in the written request.

The court cited the six elements required to commence review of a final decision. Those elements are: 1) a written request for summons; 2) the listing of a designated return date; 3) the name of all parties in interest; 4) the addresses of all parties in interest; 5) the names of the attorneys of record for all parties in interest; and 6) the addresses of the attorneys of record. The court reviewed the relevant case law and found that the respondent was not prejudiced by the petitioner's failure to strictly comply. It was also noted that respondent's attorney did file a timely appearance and an extensive brief on the merits of the case and failed to initially complain that the court lacked jurisdiction.

Deichmueller Construction Co. v. Industrial Comm'n, 215 Ill. App. 3d 272, 574 N.E.2d 1208, 158 Ill. Dec. 815 (3d Dist. 1991), held that where there was no authority given to respondent's attorney during the 20 day filing period under which it could be said the attorney could obligate the respondent to pay the amount of the bond, the statutory language set forth in Illinois Armored Car Corp. v. Industrial Comm'n, 205 Ill. App. 3d 993, 563 N.E.2d 951, 150 Ill. Dec. 824 (1st Dist. 1990) would apply. The court requires the signature on the bond to be by the person with the corporate authority to bind the employer. This case will require appeal bonds to be delivered to the insured employer at the earliest point of appeal. It will require identification of the appropriate person on behalf of the employer to sign the bond. It is recommended that the bond be signed prior to the receipt of the Industrial Commission's decision on appeal. The court requires that the bond be filed within the 20 day filing period following receipt of the decision of the Commission.

Notman v. Thrif-T-Mart and Industrial Comm'n, 1991 Ill. App. LEXIS 1239 (3d Dist. 1991), confirmed an arbitrator's authority to dismiss a case with prejudice for failure to comply with the arbitrator's order to produce tax records on the issue of dependency in a death claim. The arbitrator's order dismissed petitioner's case with prejudice and specifically advised the petitioner that if she failed to file a petition for review within 15 days after receipt of the order the arbitrator's decision would be entered as the decision of the Commission.

The petitioner failed to file a petition for review within 15 days but did file a motion for reinstatement. The court refused to equate the dismissal with prejudice as a dismissal for want of prosecution. The court confirmed the arbitrator's inherent power to dismiss claimant's cause for failure to produce pursuant to section 19(b) which allows an arbitrator to make inquiries and investigations as deemed necessary. The court held that the Commission properly dismissed the petition for reinstatement on the ground that it lacked jurisdiction since the claimant failed to file a petition for review within 15 days after the arbitrator entered his decision.

Mattern v. Industrial Comm'n, 216 Ill. App. 3d 653, 576 N.E.2d 539,159 Ill. Dec. 870 (3d Dist. 1991), held that the mailing of a petition for review within sufficient postage which was refused by an employee of the Commission should not be the basis for an order dismissing the review on the ground that the petition was not filed within the 15 day limit mandated by the Workers' Compensation Act. The petition for review arrived at the Industrial Commission office with 20 cents postage due and a Commission employee refused delivery. When the petitioner later refiled the petition, the respondent moved to dismiss on the ground that it had nothing filed within the 15 day limit. The majority opinion by Justice Stouder suggests that the Act is humane legislation designed to provide employees with prompt and definite compensation and should be liberally construed to effect its purpose. The amount of the postage was deemed small and the failure to provide the correct postage appeared to be inadvertent. The court found that the respondent was not prejudiced as its attorney received the petition within the 15 day time period. Based upon those facts, the court found that the petitioner sufficiently complied with the requirements of 19(b). Justice McCullough issued a dissent stating that there was no duty on the Commission to accept the postage due envelope.

MEDICAL EXPENSES - Back to Table of Contents - Back to WC Index

Zephyr, Inc. v. Industrial Comm'n, 215 Ill. App. 3d 669, 576 N.E.2d 1, 159 Ill. Dec. 332 (1st Dist. 1991), held that despite the lack of explicit statutory language in section 8(a) referring to home modification a fair reading of the statute does not preclude such compensation. The court held that such provision is consistent with the statute's general purpose of fully compensating employees for work-related injuries. The court affirmed the Commission's order of home modifications within the meaning of section 8(a). The petitioner received an award ordering the respondents to pay $275,491 to remodel claimant's home.

The court modified its decision upon denial of the rehearing petition on July 26, 1991 remanding the matter to the Commission to establish a procedure for payment of the monies to the claimant to remodel his home.

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

Williams v. Industrial Comm'n, 216 Ill. App. 3d 536, 576 N.E.2d 383, 159 Ill. Dec. 714 (1st Dist. 1991), affirmed the Commission's denial of causal connection. The Commission's judgment regarding the credibility of witnesses will not be disturbed on appeal. The Commission did not find the petitioner's testimony credible, and petitioner failed to present medical evidence as to causal relationship. Petitioner then argued that causation was established by the chain of events despite the complete lack of medical testimony on causation. The appellate court agreed that medical evidence is not necessary to show causation but held that the petitioner was wrong in contending that the court must find as a matter of law that the Commission erred. This case is an example of a deference the appellate court gives to the Commission on factual determinations based upon the Commission's judgment as to the credibility of the petitioner and respondent's witnesses.

Ditola v. Industrial Comm'n, 216 Ill. App. 3d 531, 576 N.E.2d 379, 159 Ill. Dec. 710 (1st Dist. 1991), the Commission affirmed a TTD award and agreed with an arbitrator's finding that a subsequent intervening automobile accident accounted for more of petitioner's disability than a prior work accident. The Industrial Commission held that the evidence did not justify a finding of 30 percent loss of use of the left leg. It concluded that the work accident was only responsible for 5 percent loss of use of the leg. The Commission reduced the permanent partial disability award to 10 weeks of compensation. The appellate court affirmed the Commission's findings. It determined that the petitioner had returned to work and had no further treatment between May 2 and December 13, 1983, the date of the auto accident. The court held that the complaints of the petitioner regarding knee problems during that time was accounted for by the Commission's finding of 5 percent loss of use.

A subsequent intervening accident can cut off an obligation for TTD benefits and also be argued to reduce permanency and/or apportion permanency between the industrial accident and the subsequent intervening event.

Old Ben Coal Co. v. Industrial Comm'n, 1991 Ill. App. LEXIS 827 (5th Dist. 1991), the appellate court affirmed the Commission's finding of permanent and total disability resulting from the occupational pneumoconiosis. The court noted the fact that the Commission expressly found the petitioner's testimony to be "highly credible." They also relied upon the treating physicians' opinion supporting causal relationship. Those physicians testified that the pneumoconiosis suffered by the claimant was caused by exposure to coal dust during the course of his employment. It was a contributing factor to the severe respiratory impairment and consequent disability. The appellate court would not disturb the Commission's reliance upon this evidence. The court also found that the claimant was in fact disabled when he last worked on July 16, 1982. The court rejected the employer's claim that the petitioner failed to prove that disablement occurred within two years after the last date of exposure to hazards of occupational disease as required by section 1(f). The court noted the claimant had difficulties for two years prior to ceasing employment. His inability to breathe when he returned home from work on July 16 and the advice of his physician within three days thereafter to quit mining was the result of his condition.

Heritage House v. Industrial Comm'n, 1991 Ill. App. LEXIS 1370 (4th Dist. 1991), held the appellate court affirmed the Commission's finding of causal relationship between claimant's fall at work and subsequent back injury. The work-related incident itself was undisputed. There was also evidence that the petitioner had suffered loss of consciousness on prior occasions. The court affirmed the Commission's finding that the evidence demonstrated the claimant experienced a loss of consciousness on October 16, 1985 on which date her husband found her in a semi-conscious state. She had no back problems prior to this incident and immediately experienced pain which on the following day Dr. Couch described to an acutely herniated disc. The timing of these events combined with the petitioner's testimony and the medical testimony regarding the possibility of a seizure leading to a lumbar injury supported the Commission's determination as to causal relationship.

PSYCHOLOGICAL IMPAIRMENT CASES - Back to Table of Contents - Back to WC Index

City of Springfield v. Industrial Comm'n, 214 Ill. App. 3d 301, 573 N.E.2d 836, 158 Ill. Dec. 23 (4th Dist. 1991), held that the claimant failed to show he was exposed to a situation of greater dimensions than the day-to-day emotional strain and tension which all employees experience. The petitioner was a 17 year veteran fire inspector who claimed psychological impairment resulting in panic attacks due to increased work load, political tensions, disputes concerning interpretation of rules and discrimination by supervisors. He claimed that these work exposures resulted in increased anxiety and psychological impairment. Respondent's evidence revealed these factors as common to many fire department employees. The court cited Chicago Board of Education v. Industrial Comm'n, 169 Ill. App. 3d 459, 523 N.E.2d 912, 120 Ill. Dec. 1 (1st Dist. 1988), holding that if the non-traumatically induced mental disorder is due to a gradual deterioration of mental processes, the causal connection between the employment and the disability must be established by showing the employment exposed the employee to an identifiable condition of the employment that was not common and necessary to all or to a great many occupations.

The court concluded that mental disorders not resulting from trauma must arise in a situation of greater dimension than the day-to-day emotional strain and tension which all employees must experience. The petitioner must prove that the employment conditions when compared with non-employment conditions were the "major contributory cause" of the mental disorder. This is one of the first references in recent cases to a new level of proof for causation. The court is going to require the petitioner to prove the employment conditions as a major contributory cause of the mental disorder to prevail. This is a different level of proof from most workers' compensation cases which only require the employment exposure to be a causative factor.

Hudgens v. Industrial Comm'n, 1991 Ill. App. LEXIS 1391 (5th Dist. 1991), involved claims of physical and psychological injury. Regarding the psychological injuries, the petitioner was a truck driver for the respondent and testified that she was subject to several incidents of sexual harassment. Co-workers such as loaders and mechanics made comments to her about "going to bed with her" and "getting into her pants." She complained regarding these incidents and was examined by two psychiatrists. Dr. Wolfgram testified that she was suffering from major depression and that these incidents aggravated her already depressed state. He testified that there was a causal relationship between those incidents and her inability to perform her job. He testified that her psychological problems were permanent. Petitioner was also examined by psychiatrist Wiedershine at the request of the respondent. He testified that the sexual harassment she received while working was causing her psychological problems. He did not believe her condition was permanent and attributed some of her psychological problems to unstable family relationships.

The arbitrator found that the petitioner's present condition being not causally connected to the incidents described. The Commission found the petitioner did suffer injuries which arose out of and in the course of her employment, but concluded that the injuries and her condition of ill-being were not connected. The appellate court found the Commission's decision against the manifest weight of the evidence. The appellate court reversed noting that both Drs. Wolfgram and Wiedershine testified that petitioner's psychological problems were connected with the injuries alleged. Based on those medical records, the court held that the Commission's finding of no causation was against the manifest weight of the evidence.

Amoco Oil Co. v. Industrial Comm'n, 1991 Ill. App. LEXIS 1392 (1st Dist. 1991), affirmed the Industrial Commission decision finding the petitioner was psychologically, permanently and totally disabled. A large number of doctors testified for the respondent and for the petitioner on the issue of causation with respect to the psychological condition. The arbitrator and Commission found in favor of the petitioner based upon the medical opinions of petitioner's physicians. Such a finding would not be disturbed on appeal. The Industrial Commission determines witness credibility and resolves all conflicts in medical evidence. The court found that there was evidence in the record that claimant's accident of March 4, 1981 was a causative factor in aggravating his preexisting emotional condition. Based on that fact, a prima facie case had been made by the petitioner and the Commission's acceptance of that evidence would not be disturbed on review.

MISCELLANEOUS CASES

Debt Collection - Back to Table of Contents - Back to WC Index
Oak Park Hosp. v. Eugene Smuda, et al., 214 Ill. App. 3d 1032, 574 N.E.2d 804, 158 Ill. Dec. 691 (1st Dist. 1991), held that proceedings of the Industrial Commission should not bar a hospital from pursuing its own independent claim against the person receiving medical services from a medical provider. The Workers' Compensation Act does not restrict the hospital's avenues of collection from the recipient of medical services. The circuit court had jurisdiction to consider the hospital's demand to examine defendant's non-exempt assets despite a claim that the medical services were part of a compensation claim.

Intoxication - Back to Table of Contents - Back to WC Index
Riley v. Industrial Comm'n, 212 Ill. App. 3d 62, 570 N.E.2d 887, 156 Ill. Dec. 411 (3d Dist. 1991), held that while intoxication is not a per se bar to workers' compensation benefits. Under the circumstances it was reasonable to conclude that the petitioner was unable to perform his work properly and therefore not carrying out his employment responsibilities when he had his one-car accident. The petitioner testified that he had at least five glasses of wine throughout the afternoon. On his way home from a meeting, he was to deliver a tool to one of his customers. He was unable to do so because he fell asleep at the wheel and struck a utility pole. The court affirmed the Commission's conclusion that his injury did not arise out of his employment.

Penalties - Back to Table of Contents - Back to WC Index
Crockett v. Industrial Comm'n, 1991 Ill. App. LEXIS 1277 (1st Dist. 1991), reversed the Commission's decision which disallowed petitioner's claim for penalties and attorneys' fees finding the respondent's reliance on a subsequent intervening accident to be unreasonable under the circumstances. The appellate court found that the respondent's action in delaying benefitsfailed to meet the objective standard of reasonableness. The court noted that the description of the accident was characterized as a "re-exacerbation of the lumber area" by Dr. Kenney. The petitioner was at home preparing for work when her right leg buckled and she twisted her lower back while carrying luggage down the stairs. Although she did not fall at the time, she did twist her ankle. The appellate court's imposition of penalties and attorneys' fees for unreasonably withholding benefits was warranted since petitioner was anxious to return to work for financial reasons and entered into bankruptcy proceedings over the course of her illness. Reliance upon intervening incidents which can be characterized as re-exacerbation can support an award of penalties.

Attorneys' Fees - Back to Table of Contents - Back to WC Index
Spinak, Levinson & Assoc. v. Industrial Comm'n, 209 Ill. App.3d 120, 568 N.E.2d 41, 154 Ill. Dec. 41 (1st Dist. 1990), held that attorneys' fees are limited to 20 percent of compensation recovered and paid. A claim for attorneys' fees on a theory of quantum meruit was rejected since the parties had entered into a standard fee agreement. The Industrial Commission was bound to award fees only in compliance with the terms of the Workers' Compensation Act. The court denied a request for "extraordinary" services even though the statute does allow the Industrial Commission to award fees beyond those specifically enumerated in the Act for such services.

Section 8(d)(1) Wage Differential - Back to Table of Contents - Back to WC Index
City of Springfield v. Industrial Comm'n, 1991 Ill. App. LEXIS 1303, 576 N.E.2d 568, 159 Ill. Dec. 899 (4th Dist. 1991), reversed a Commission finding that the claimant was permanently and totally disabled. The Commission found that respondent's offer of re-employment was not a bona fide offer because as a condition of re-employment the respondent refused to make up the difference in salary between that which the claimant originally earned as a master mechanic and the reduced salary he would earn in any of the positions offered. The respondent's offer also included a restriction that if problems continued with the knee after he accepted re-employment he would be charged with sick time should he be unable to work. The Commission found the offer to be a sham and held the claimant was permanently and totally disabled. The petitioner was also recovering from a heart attack and aneurism which were not work-related. The appellate court found that the respondent was statutorily obligated under section 8(d) of the Act to pay benefits based upon claimant's diminished earning capacity and found that any attempt to evade payment of these payments as a condition of re-employment would have been improper. The court stated:

Despite the chicanery attempted by respondent, we conclude the Commission's determination the offer was not bona fide is against the manifest weight of the evidence because the conditions placed upon that offer were legally unenforceable.

Offers of re-employment which condition re-employment upon waiver of rights under the Act are not enforceable.

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