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

Edward Hines Lumber Co v. Industrial Comm'n, 1990 Ill. App. LEXIS 1768 (1st Dist. 1990), held that compulsory overtime hours are included in the average weekly wage calculation at straight-time rates. The petitioner in the Hines case was required to work 10 hours per day, six days per week, and if he refused, was subject to termination. The court determined that the average wage in this case was his average number of hours worked (67 per week) multiplied by his straight-time rate. A key factor in this case is that the overtime was mandatory and regularly worked.

Where employees regularly work overtime, their actual hours worked should be included in the calculation of their average weekly wage at straight-time rates.

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

Pryor v. Industrial Comm'n, 201 Ill. App. 3d 1, 558 N.E.2d 788, 146 Ill. Dec. 825 (5th Dist. 1990), confirmed an Industrial Commission ruling supporting a denial of compensability where evidence revealed that any activity associated with daily living could have caused a herniated disc. The petitioner's act of bending over associated with his employment was not a risk greater than that faced by the outside world.

The claimant had underwent a previous laminectomy and there was testimony that the petitioner's back was a "time bomb" waiting to go off. The medical testimony indicated the disc would herniate without any trauma or with very minor activities. The court relied on the principle that recovery is properly denied where the employees health has so deteriorated that any normal daily activity is an over exertion. The act of bending over does not establish, as a matter of law, the existence of a risk greater than those faced outside of work. The arbitrator found for the claimant indicating the work activity of bending over aggravated his preexisting low back condition. This was reversed by the Commission and confirmed by the appellate court.

Hatfill v. Industrial Comm'n, 202 Ill. App. 3d 547, 560 N.E.2d 369, 148 Ill. Dec. 67 (4th Dist. 1990), held that an injury on the employer's parking lot did not arise out of and was not incidental to employment where the injury resulted from a personal deviation by the employee and resulted from a risk personal to the employee. The petitioner jumped over a ditch in the employer's parking lot to avoid an accumulation of water at the base of an incline on his way to his car. The court cited several cases and determined that this risk was personal to the employee and not incidental to employment. This issue is a question of fact, and the court deferred to the arbitrator's finding in this regard.

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

Insurance Co. of North America v. Andrew, et al., 1990 Ill. App. LEXIS 1913 (2d Dist. 1990), held that a release executed by an injured employee entered into without the employer's consent or without court order protecting the employer's Workers' Compensation lien was invalid. The defendant could not use the release as  affirmative defense to suit brought by the plaintiff as subrogee of the employer to recoup benefits paid under the Act.

The Insurance Company of North America sought reimbursement of its Workers' Compensation benefits paid to an injured employee. The defendant moved to dismiss the complaint asserting the release signed by the injured employee. The motion alleged that the plaintiff's action brought as subrogee was released and barred by the prior settlement. The court held that the plain statutory language provides that a release or settlement entered into without the employer's consent or without an order of the court protecting the employer is not valid. The release only contained the employee's signature with no indication that the plaintiff (INA) consented to the agreement. The release signed by the employee was not effective to bar INA's cause of action as subrogee of the employer because there was no indication that the plaintiff consented to the release or that the plaintiff was indemnified or protected by court order.

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

Miller v. Reynolds, 200 Ill. App. 3d 166, 558 N.E.2d 673, 146 Ill. Dec. 710 (2d Dist. 1990), held that a 61 year old housekeeper injured in a fall from a ladder outside of the house while baiting an animal trap was barred from maintaining a common-law negligence action. Her exclusive remedy was under the Workers' Compensation Act. The claimant was a live-in housekeeper. The testimony from the employer in the civil action indicates her job was inside the house and did not involve climbing ladders. The employer would have fired her if he had knowledge she was on a ladder. The plaintiff obtained a jury verdict for $375,000 under a theory of negligence. A special interrogatory to the jury as to whether the claimant's injuries arose out of and in the course of employment was responded to negatively. On this basis, the claimant argued the exclusivity of the Workers' Compensation Act should not bar her negligence verdict. The appellate court rejected this argument and held that the jury verdict must be reversed. The court determined that an act outside of the employee's regular duties which is undertaken in good faith to advance the employer's interests, whether or not actually assigned, is within the course of employment. Based on the Workers' Compensation Act's liberal interpretation of employment, the exclusive remedy doctrine applied.

Meerbrey v. Marshall Field and Co., Inc., 139 Ill. 2d 455 (1990), held that the exclusive remedy provisions of the Workers' Compensation Act barred the employee's suit against his employer where the plaintiff employee has failed to allege the employer committed or expressly authorized its agent to commit an intentional tort upon the plaintiff. The court also held that the exclusive remedy provisions of the Act do not bar employees from pursuing a common-law action against coemployees for injuries arising out of intentional torts. The coemployee should not be permitted to assert that the plaintiff's injuries were accidental, and therefore, barred by the exclusive remedy provisions when he himself has committed the intentional tort.

The Supreme Court affirmed the appellate court decision referred to in the February 1990 Case Law Update.

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

Gallentine v. Industrial Comm'n, 201 Ill. App. 3d 880, 559 N.E. 2d, 526, 147 Ill. Dec. 353 (2d Dist. 1990), held that a claimant was not entitled to TTD benefits where she refused to accept positions offered within her medical restrictions. The court deferred to the Industrial Commission stating that the issue of TTD benefits is a question of fact for the Commission to decide, and unless that decision is against the manifest weight of the evidence, it will not be disturbed on  review. The court noted that TTD is paid until such time as a claimant has recovered as much as the character of the injury will permit and until the condition is stabilized. The claimant must show not only that she did not work, but that she was unable to work.

The petitioner was a K-Mart employee who injured her back while stocking shelves. During her last visit with the orthopedic surgeon, she was released to return to work with a restriction of no heavy  lifting, and she could not sit or stand for extended periods. She returned to work for an hour and a half and developed pain while watching another employee operate a cash register. She did not return to work although she testified she sought work elsewhere within her limitations. The respondent attempted to provide the claimant with a job of a cashier which was within her work restrictions. The appellate court believed there was sufficient evidence to support the Commission's determination that she was able to return to work and was not entitled to TTD after that release.

The court also confirmed the Commission's denial of a chiropractor's bill as being unreasonable and unnecessary. The court confirmed the petitioner has the burden of proving the reasonableness and necessity of the chiropractic expense by a preponderance of the evidence. There was testimony for medical physicians that the chiropractic treatment was unbeneficial and unwarranted, and it was within the province of the Commission to deny the chiropractic bill as unnecessary and unreasonable based upon that evidence.

Dexheimer v. Industrial Comm'n, 202 Ill. App. 3d 437, 559 N.E.2d 1034, 147 Ill. Dec. 694 (1st Dist. 1990), held that TTD was properly terminated by the respondent where a private investigator's observations revealed the petitioner shoveling loads of top soil without any evidence of impairment in the claimant's movements while working. The petitioner had been on TTD for an extended period of time. The testimony of the private investigator, and respondent's examining doctor were sufficient to terminate benefits. The examining doctor found the petitioner had no impairment of motion or function and could return to work and do all of his ordinary activities. This case reveals the value of monitoring petitioners on extended periods of TTD with surveillance and periodic medical evaluations. In this case, the arbitrator, Commission, circuit and Appellate courts held that the petitioner was not entitled to TTD on the basis of the evidence noted above.

Archer Daniels Midland Co. v. Industrial Comm'n, 138 Ill. 2d 107, 561 N.E.2d 623, 149 Ill. Dec. 253 (1990), the Illinois Supreme Court reversed an appellate court determination finding that the petitioner had not failed to cooperate with vocational rehabilitation. The court found that respondent's termination of benefits was unjustified. The court held that despite the claim delaying completion of the locksmithing course, the record supported the conclusion that the petitioner did not fail to cooperate, and therefore, termination of benefits was unjustified. The Supreme Court held that the petitioner remained entitled to TTD benefits despite the fact the evidence revealed the petitioner made no attempts to secure employment after completion of his course but had made such efforts prior to completing the course by contacting several employers and determining that no locksmithing jobs were available. The court held that the burden shifted to the employer to prove that the petitioner was capable of engaging in some type of regular and continuous employment, and that such employment was reasonably available. It is significant that the employer did not offer the petitioner any light duty work and made no showing of any other suitable light work was available to him. This case demonstrates the value of cooperation by the employer in identifying suitable work within restrictions. Even though this petitioner was arguably able and qualified to be a locksmith, and all of the doctors agreed that locksmithing was a suitable activity, he could not find work.

PERMANENT PARTIAL DISABILITY CASES - Back to Table of Contents - Back to WC Index

Marathon Oil Co. v. Industrial Comm'n, 203 Ill. App. 3d 809, 561 N.E.2d 141, 148 Ill. Dec. 835 (5th Dist. 1990), held that a petitioner need not be reduced to a state of total physical helplessness for permanent and total award to stand. Total disability exists when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable labor market for them.

In this case, the petitioner suffered an injury to his pelvis, ankle and underwent a cervical laminectomy resulting from an accident involving a skid which slipped off of a truck. There was medical testimony in conflict regarding the extent of the claimant's disability. The respondent also presented surveillance testimony regarding activities inconsistent with his claimed disability. A private investigator observed him unloading several cart loads of cans from a pick-up truck and observed him working under the hood of his car as well as unloading a cheese truck. The petitioner admitted these activities as well as cutting wood and riding a motorcycle but testified that he did these things to "test himself." The appellate court deferred to the Industrial Commission's findings. The arbitrator awarded the permanent and total, and the Commission modified it to 50 percent of a man.

The fact that a worker cannot perform very strenuous physical labor or his previous heavy duty job does not mean that he is necessarily permanently and totally disabled. Modified work, light duty employment and outside activities inconsistent with the claimed disability, if substantiated, can avoid a permanent and total award.

Illinois Mutual Ins. Co. v. Industrial Comm'n, 201 Ill. App. 3d 1018, 559 N.E.2d 1019, 147 Ill. Dec. 679 (3d Dist. 1990) (No. 3-89-0709, filed 8/24/90), held that a finding of permanent and total disability under the Act for head injury could be supported by claimant's testimony regarding an unwitnessed automobile accident and despite rather vague and conflicting medical testimony. Numerous mental and psychological tests were performed with inconclusive or differing results. The appellate court affirmed the arbitrator and Commission's decisions awarding permanent and total disability. The arbitrator and the Commission prepared a detailed opinion and chose to rely on the claimant's testimony and the treating doctor and chose to discount the respondent's evidence and medical testimony. Such a determination by the arbitrator and Commission will not be overturned on appeal.

The case involved an insurance claim's adjuster who was involved in an automobile accident which involved a total of $350 in repair work to the bumper. He hit his head during the accident, drove home, took some aspirin and called the office. At a later date, he was hospitalized for 25 days and had recurring headaches. He returned to work three months later. He had a reduced ability to think and accepted a lesser position. After one year, he left his job and did not seek any other employment.

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

Carroll v. Industrial Comm'n, 205 Ill. App. 3d 885, 563 N.E.2d 890 (5th Dist. 1990), held that Illinois did not maintain jurisdiction over the petitioner who was an Idaho resident who suffered an accident in the state of Washington where the original contract of hire in 1966 took place in Illinois. The court found that the fact that the original place of hire was Illinois did not lead to an automatic finding of jurisdiction. The claimant had not worked out of the Illinois terminal since 1970, and had not lived in Illinois since 1969. The claimant had been involuntarily transferred to Nebraska and had no recall rights back to Chicago. The court found that claimant's lack of significant contacts with the state of Illinois and the length of time between the date of injury and his transfer was significant. The petitioner's injury occurred in 1988 approximately 18 years after his transfer to Nebraska, and 19 years since he had last resided in the state of Illinois. The claimant's attempt to invoke Illinois jurisdiction based upon the place where the contract was made in 1966 was insufficient. The place where the contract is made is only one of a number of factors used to determine jurisdiction.

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

Burd v. Industrial Comm'n, 1991 Ill. App. LEXIS 75 (3d Dist. 1991), involved an appeal by the claimant from an Industrial Commission decision which was confirmed by the trial court denying claimant fees for services rendered by his fiancee pursuant to section 8(a) of the Act. Claimant was injured in 1986 and rendered a paraplegic. Unrebutted medical testimony established that the claimant could not exist in his house without assistance provided by either a home care service or a "significant other." This was due to the need for assistance in case of an emergency, assisting with bath and showers. The claimant sought compensation for his fiancee's services.

At arbitration, an award was made for expenses for home care service, but the arbitrator found that the fiancee was not entitled to payment for hours spent caring for the claimant, since she had occupied the residence as the claimant prior to the injury and continued to work full-time after his injury. The appellate court relied of Dr. Szymke's testimony and held that many of the tasks performed by the fiancee were necessitated by claimant's injury, and they were not considered ordinary household duties. They noted that the fiancee was not the claimant's spouse, and therefore, compensation for performance of housekeeping services was not automatically barred. The evidence that the claimant required 24 hour per day care was unrebutted in the record. Based on these facts, the court held that this petitioner was entitled to payment for home care services rendered by his fiancee.

Ernest Nichols v. Mississippi Valley Airlines, 204 Ill. App. 3d 4, 562 N.E.2d 1 (3d Dist. 1990), held that in a 19(g) action the only issue is whether the award has been paid. The court will not review the Commission's decision or otherwise construe the statute under such a review.

In this case, the arbitrator found the claim compensable and awarded TTD and medical expenses. The defendant deducted medical expenses from their payment of the award, because the plaintiff's former employer had paid them prior to the arbitration hearing. In an attempt to seek recovery of the unpaid portion of the award, the plaintiff filed the application for judgment on the Industrial Commission's award. The defendant argued on appeal that the trial court erred in finding that it was required to pay the plaintiff's medical expense. The defendant contended that since those expenses had already been paid by the former employer, it should not be required to pay them again. The court rejected that argument and held that the defendant was precluded from raising this issue on appeal from a 19(g) proceeding.

Credits for previous payments of medical or TTD must be asserted at the time of the arbitration for double payment and double recovery will occur.

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

Hebeler v. Holland Co., 1991 Ill. App. LEXIS 43 (2d Dist. 1991), held that petitioner's subsequent activities broke the causal link between his injury and eventual diagnosis of a disc. His original injury resulted in an acute lumbar strain only. The neurological exam failed to show any objective symptoms of injury, but a month later, the disc was diagnosed. Between the initial injury and the diagnosis of the disc, the claimant engaged in activities requiring physical exertion and a great deal of bending at the waist. The appellate court determined that the Commission did not err in finding the petitioner failed to prove causal connection.

MISCELLANEOUS CASES

Subject Matter Jurisdiction - Back to Table of Contents - Back to WC Index
Advance Transportation Co. v. Industrial Comm'n, 202 Ill. App. 3d 449, 559 N.E.2d 1038, 147 Ill. Dec. 698 (1st Dist. 1990), held that failure to designate a return date of the summons pursuant to section 19(f)(1) did not cause the circuit court to loose subject matter jurisdiction over the case.

Collateral Estoppel - Back to Table of Contents - Back to WC Index
Owens v. Industrial Comm'n, 203 Ill. App. 3d 818, 561 N.E.2d 147 (5th Dist. 1990), held that the issue of causal relationship raised in the pending Workers' Compensation case was barred under the doctrine of collateral estoppel. Minor children of the decedent Owens sought Workers' Compensation benefits after the decedent died of a drug overdose eight months after suffering an accident while working for the respondent. Judgment in a prior civil suit for wrongful death pursuant to the Structural Work Act resolved the causal connection issue between the same parties. The arbitrator held that the doctrine of collateral estoppel barred the claim.

Section 19(e) - Back to Table of Contents - Back to WC Index
Square D Co. v. Industrial Comm'n, (No. 1-89-2197), held that the Commission's statement that it considered the entire record before it implies that it adopted the arbitrator's findings of fact and conclusions of law. This meets the statutory requirements delineated in section 19(e) of the Act. The court suggested that the Commission in the future explicitly state that they have considered the entire record when adopting arbitrator's decisions.

Appeal - Back to Table of Contents - Back to WC Index
Illinois Armored Car v. Industrial Comm'n, 205 Ill. App. 3d 993, 563 N.E.2d 591 (1st Dist. 1990), held that the respondent's attorney was not "the one against whom the award was made" under section 19(f)(2), and therefore, the filing of a bond executed by the employer's attorney as opposed to a corporate officer of the employer was not perfected. The court further found that the subsequent filing of an affidavit by the respondent's president stating the attorney was authorized to execute the bond was insufficient to cure the jurisdictional defect. Without a proper appeal bond, the circuit court lacked jurisdiction.

Celeste v. Industrial Comm'n, 205 Ill. App. 3d 423, 562 N.E.2d 1148 (5th Dist. 1990), held that section 19(f)(2) provides that the bond is required of "the one against whom the Commission has rendered an award for payment of money." The court held that the employee did not have to file a bond because the legislative intent is that the employee shall be protected by the bond. Clearly, section 19(f)(2) bond requirements apply to an employer on appeal but not to employees.

Attorneys' Fees - Back to Table of Contents - Back to WC Index
Spinak Levinson and Associates v. Industrial Comm'n, 1990 Ill. App. LEXIS 1975 (1st Dist. 1990), held that petitioner's attorney's fee was limited to the $100 nominal attorney fee award where the arbitrator's award did not exceed the offer made to the pro se petitioner despite the fact that the arbitration itself secured the claimant's rights to future medical benefits. The court held that where an offer was rejected and the later award of permanent disability did not exceed the original written offer, the attorney's fee is limited to the nominal $100 award.

Section 19(g) - Back to Table of Contents - Back to WC Index
Evans v. Corporate Services, 1990 Ill. App. LEXIS 1948 (2d Dist. 1990), held that section 19(g) of the Act provides in absolute terms that a certified copy of the award or decision is required and must be presented to the circuit court. The circuit court's inquiry is limited to the determination of whether the requirements of 19(g) have been met. If no such certified copy is filed with petitioner's application or made part of the record, the statute has not been followed, and the trial court is without authority to enter judgment on the award.

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