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

Cook v. Industrial Comm'n, 231 Ill. App. 3d 729, 596 N.E.2d 746, 173 Ill. Dec. 122 (3d Dist. 1992), held that it was proper to calculate claimant's average wage by dividing total wages by the number of weeks worked rather than petitioner's hourly wage formula interpretation of section 10 which would create a windfall to a claimant.

The petitioner, during the year preceding the injury, worked 24 different weeks for the employer and the majority of the weeks were not full 40 hour weeks. The court distinguished the computation of average wage in short or casual employment cases and where probable regular earnings are used to determine the wage. The court rejected Peoria Roofing and Sheet Metal v. Industrial Comm'n, 181 Ill. App. 3d 616, 537 N.E.2d 381, 130 Ill. Dec. 314 (3d Dist. 1989) holding that this case was not in line with Hasler v. Industrial Comm'n, 97 Ill. 2d 46, 454 N.E.2d 307, 73 Ill. Dec. 447 (1983) where the court construed the predecessor to section 10 observing the purpose of the Act was to compensate or make whole and not provide a windfall. The court found that the petitioner's formula for calculating average wage by dividing total wages by plaintiff's hourly rate to arrive at actual hours worked and then dividing the hours by an eight hour workday to arrive at a figure representing full days worked, which figure was to be divided by a five day week to determine the number of full weeks worked, which was divided into total wages produced a windfall and was not a proper construction of section 10.

In summary, the court held that the Industrial Commission's commonsense formula of determining average wage by dividing claimant's total wages by the number of weeks worked was appropriate.

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

Kropp Forge Co. v. Industrial Comm'n, 225 Ill. App. 3d 244, 587 N.E.2d 1095, 167 Ill. Dec. 480 (1st Dist. 1992), confirmed an Industrial Commission decision of compensability where there was conflicting evidence as to whether the decedent was performing his work in an area where he was expected to be at the time he died. The decedent was fatally burned in one of the employer's furnaces. There was enough evidence presented for the Commission to reasonably infer that he was performing work in the area where he was expected to be at the time of his death. The fact that he violated safety rules was held to be irrelevant since the rules were not enforced. The claimant was found at 5:00 a.m. on October 4, 1985, inside furnace number 201 with his body in flames. The claimant was wearing his glasses. Four beer cans, pliers, a gauge, a wrench set, goggles and a hard hat were found with the body. A toxicology expert gave an opinion at arbitration that the petitioner was intoxicated but admitted he did not know the decedent's tolerance for alcohol and could not testify that he had abandoned his employment due to the alcohol consumption. None of the witnesses who saw the claimant prior to his death noticed the smell of alcohol or anything unusual about him. The intoxication defense failed because there was no evidence that he was so intoxicated that he had abandoned his employment.

Sangster v. Keller, 226 Ill. App. 3d 535, 589 N.E.2d 940, 168 Ill. Dec. 540 (2d Dist. 1992), held that injuries resulting from an accident which occurred on a driveway owned by the employer and used by its employees for ingress and egress to its facility, arose out of employment and was compensable under the Workers' Compensation Act. This court held that injuries that occur at a time when employees are leaving or arriving for work are compensable. The court held there is a certain risk associated with a claimant's use of a driveway that he would not otherwise be subjected to if he were not using the driveway along with other employees to access or exit the work place. The court found that regular and continuous use of the driveway by employees at starting and quitting times results in an increased risk beyond that which the general public was exposed, and therefore, injuries occurring as a result of vehicular accidents between two employees using an employer-owned driveway to  exit the work place shortly after concluding the work day arose out of and in the course of their employment.

Best Foods v. Industrial Comm'n, 231 Ill. App. 3d 1066, 596 N.E.2d 834, 173 Ill. Dec. 210 (1st Dist. 1992), held that a sprained ankle due to a fall on a sidewalk in front of the employer's premises is not compensable where there was no evidence that the claimant was exposed to a risk not common to the general public. The petitioner's departure from work was not affected in any way by other employees leaving at the same time. The petitioner did not know where she fell on the sidewalk and testified that there was no ice or snow on it at the time. There was no evidence that the claimant's fall was in any way caused by the condition of the sidewalk or by the presence of any broken concrete or defect in the walkway. These facts confirmed no evidence of a risk not common to the general public. The court did distinguish the Gray Hill v. Industrial Comm'n, 145 Ill. App. 3d 371, 495 N.E.2d 1030, 99 Ill. Dec. 295 (1st Dist. 1986), cert. denied, 479 U.S. 1089, 107 S. Ct. 1298 (1987) case where a slip and fall on a sidewalk was found compensable where there was a flurry of exiting employees combined with an icy sidewalk. The court felt that situation created a risk to which the claimant was more susceptible than the general public.

Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992), held that an injury resulting from sexual harassment by a co-employee arises out of employment. The court found that the harassment prone co-employee is as much a part of the victim's work environment as a defective tool. The claimant's subordinate status made her vulnerable to suffering emotional distress from the unwanted advances of a management level employee, therefore, her injuries arose from her employment barring her claim for intentional infliction of emotional distress. The district court held that plaintiff could not prevail in her claim for intentional infliction of emotional distress because the claim was preempted by the Illinois Workers' Compensation Act. The court compared sexual harassment to the assault by co-employees motivated by racial and ethnic prejudice found in Rodriguez v. Industrial Comm'n, 95 Ill. 2d 166, 447 N.E.2d 186, 68 Ill. Dec. 928 (1982).

STATUTE OF LIMITATION CASES - Back to Table of Contents - Back to WC Index

Wherry v. Industrial Comm'n, 599 N.E.2d 8, 174 Ill. Dec. 462 (4th Dist. 1992), held that the statute of limitations provision of section 6(c) of the Act applies to a claim for medical benefits. The petitioner was injured on August 21, 1972, and was off work for six months. All medical expenses were paid in the 1970's. In January of 1985, the claimant filed an application for compensation seeking recovery for medical expenses related to his injury in 1972. Petitioner argued that the limitations provision did not apply to a claim for medical expenses since medical expenses are not "compensation" within the meaning of that provision. This argument was rejected since acceptance of this argument would eliminate any limitation period for medical expenses. The court held that while the term compensation may exclude medical expenses in other sections of the Act, it does not exclude medical expenses as it is used in section 6(c) of the Act.

Whitney v. Industrial Comm'n, 229 Ill. App. 3d 1076, 594 N.E.2d 749, 171 Ill. Dec. 605 (3d Dist. 1992), held that a death claim for asbestos-related occupational disease is barred where there is no disablement within three years following the date of last exposure even though the claim is filed within three years from the date of death and within 25 years from the last exposure. The court cited the Goodson v. Industrial Comm'n, 190 Ill. App. 3d 16, 545 N.E.2d 975, 137 Ill. Dec. 214 (1st Dist. 1989) case which held that section 1(f) and 6(c) must be read together. The mere filing of an application within the appropriate number of years after death and exposure is not sufficient if the employee has not established disablement following the last exposure as required by section 1(f). The claimant argued the legislature intended to permit asbestos claimants to prove the onset of disability at any time within a 25 year window following the date of last exposure, and that the failure to simultaneous amend section 1(f) of the Act renders section 1(f) and 6(c) inconsistent. The court refused to amend section 1(f). It would not presume the failure to amend the Act was the result of oversight, and found no rule of construction which authorized it to declare that the legislature did not mean what the plain language of the statute imports.

Castaneda v. Industrial Comm'n, 231 Ill. App. 3d 734, 596 N.E.2d 1281, 173 Ill. Dec. 402 (3d Dist. 1992), held that claimant's carpal tunnel syndrome first manifested itself on April 26, 1985, not her last day of employment, June 19, 1987. The claim filed on September 26, 1988, was outside the three-year statute of limitations and was barred by section 6 of the Act.

The court found that the claimant first noticed problems with her hands at the time she was performing wiring and soldering work in April of 1985. She treated with a doctor on April 26 and May 1, 1985, and the doctor's notes reflected the fact that the claimant was relating her symptoms to work. The court found that the Commission's finding that the date of injury was April 26, 1985, was not against the manifest weight of the evidence and would not be set aside lightly.

The petitioner presented no evidence of any significance to the last day of work other than it being the last day she performed tasks for the employer. The record revealed she was laid off as the employer discontinued her position and she could not perform other positions. She did not seek any medical treatment at the time she was laid off and did not treat for over a year thereafter. The court will not assign the last day of employment as the date of accident for purposes of calculating the statute of limitations unless there is some significance to that date as it relates to a manifestation of the condition.

For purposes of calculating the statute of limitations for a repetitive trauma claim, the date that it manifests itself such that the claimant seeks treatment and becomes aware of its relationship to her employment will begin the running of the statute for purposes of filing the application for adjustment of claim.

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

Yonikus v. Industrial Comm'n, 228 Ill. App. 3d 333, 591 N.E.2d 890, 169 Ill. Dec. 386 (5th Dist. 1992), held that the doctrine of sovereign immunity bars claimant from seeking review of the Commission's decision in the circuit court of Illinois. The Illinois Constitution allows the state to deny state employees the right to review an adverse decision by the Commission. The trial court lacks subject matter jurisdiction in such a case.

Energy Erectors, Ltd. v. Industrial Comm'n, 230 Ill. App. 3d 158, 595 N.E.2d 641, 172 Ill. Dec. 280 (5th Dist. 1992), held that Illinois had no jurisdiction over petitioner's compensation claim where the contract of employment occurred outside of Illinois. The court held that the last act necessary to form an employment contract occurred in Virginia not Illinois. The decision to hire an applicant occurred at the job site. The petitioner was required to come to Virginia if he wanted the job. The superintendent testified that until the petitioner actually got to Virginia and filled out the papers, he would not be hired as an employee. The court cited Professor Larson's treatise for the rule that the place of acceptance is the place of contract. In the instant case, the offer of employment conditioned acceptance upon the act of the petitioner travelling to the job site in Virginia and signing various papers of employment. This finding was further supported by the fact that he was not paid for travel expenses or travel time. His pay commenced when he arrived at the job site.

Keystone Steel & Wire v. Cooksey, 228 Ill. App. 3d 429, 592 N.E.2d 1131, 170 Ill. Dec. 451 (3d Dist. 1992), held that the trial court lacked subject matter jurisdiction to hear petitioner's 19(g) petition in the circuit court as proceedings on review were pending before the Commission. Section 19(g) of the Act specifically provides that entry of judgment is not possible when review proceedings are pending. The trial court's entry of judgment was premature.

Mitchell v. Industrial Comm'n, 232 Ill. App. 3d 943, 598 N.E.2d 268, 174 Ill. Dec. 71 (4th Dist. 1992), held that the appellate court had jurisdiction to decide an appeal despite the fact the claimant did not file a notice of appeal of the circuit court decision within 30 days where petitioner filed a petition pursuant to section 2-1401 of the Code of Civil Procedure requesting that the circuit court withdraw its previous order. The section 2-1401 petition sought relief from the judgment based upon petitioner's attorney's claim that he did not receive a copy of the court judgment. The trial judge suggested that he file such a petition in an attempt to correct what was viewed as a clerical error. The court did hold that such a petition was not a proper vehicle to obtain the relief sought, but this was not a basis for dismissal for lack of jurisdiction. The court determined that it would not penalize the petitioner for relying on the directive of the circuit court. Accordingly, the appellate court held they had jurisdiction to decide the appeal.

McGee v. Ractian Construction Co., 231 Ill. App. 3d 929, 596 N.E.2d 1261, 173 Ill. Dec. 382 (4th Dist. 1992), held that the circuit court had subject matter jurisdiction to consider the cause and defendants challenge to plaintiff's strict compliance of section 19(g) was without merit. The court also ruled on plaintiff's appeal of the circuit court's order refusing to award attorneys' fees and costs. The appellate court acknowledged that unreasonable failure to pay even a minor amount of interest may not avoid the imposition of attorneys' fees and costs. The difference between the tender and the actual amount owed was $339.28. The petitioner claimed attorneys' fees and costs totalling $16,275.54. The court acknowledged that an award of those fees would be a harsh and unconscionable result which was not contemplated by the statute. The trial court found that the plaintiff had made no demand for payment before filing the petition, and that the defendant made a nearly complete tender of the amount owed eight days after suit was filed. The appellate court affirmed the trial judge's order since the dispute over the calculation of interest was to some extent caused by the failure of the plaintiff to request the arbitrator or the Commission to specify the interest in their respective decisions or for the Commission to subsequently set the interest rate.

Fisher v. Industrial Comm'n, 231 Ill. App. 3d 1061, 596 N.E.2d 831, 173 Ill. Dec. 207 (1st Dist. 1992), held that the trial court lacked subject matter jurisdiction due to petitioner's failure to file a written request for summons. The written request for summons is required by section 19(f)(1) of the Workers' Compensation Act. The court cited several previous decisions which require strict compliance with the statute in affirming the circuit court's dismissal of the cause for want of subject matter jurisdiction.

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

Higginbottom v. The Pillsbury Company, 232 Ill. App. 3d 240, 596 N.E.2d 843, 173 Ill. Dec. 219 (5th Dist. 1992), reversed a trial court finding of a good faith settlement pursuant to the Contribution Act between plaintiff and the third-party defendant employer.

The plaintiff and his employer settled the workers' compensation claim before the Illinois Industrial Commission. The employer filed a motion to dismiss the third-party complaint claiming immunity from suit since it had settled with the plaintiff. The employer requested the court find that the settlement had been given in good faith pursuant to section 2(c) extinguishing any claim for contribution by the third-party plaintiff.

The settlement did not include a waiver of the workers' compensation lien. The plaintiff would have to repay the workers' compensation benefits received under the settlement contract. The court held that for there to be a good faith finding concerning a settlement between an employer and an employee, there must be some net consideration extended by the employer to the employee. The court noted that statutory or obligatory benefits paid by an employer to an employee pursuant to the Workers' Compensation Act derived from a collateral source and were not deducted or set off from any later judgment against a third-party tort-feasor. Under this analysis, the court believed that the settlement agreement in the instant case would require the third-party plaintiff to pay more than his pro rata share and was thus not in good faith. The employer's failure to waive the lien as a part of the settlement meant that all of the monies extended to the plaintiff employee by the employer third-party defendant were the initial obligatory payments under the Workers' Compensation Act all of which could be recovered by the employer in retaining its lien. The court found that it was apparent that the employer was being asked to pay nothing to the employee by way of this agreement and that the third-party plaintiff was being asked to pay more than his pro rata share of liability to the plaintiff.

If third-party employers refuse to waive their lien as a part of a good faith settlement, consideration must be given to the plaintiff beyond the obligatory payments under the Workers' Compensation Act. The Higginbottom case does not require waiver of the lien for such settlements to be in good faith, but does require some consideration beyond the statutory obligation for payments under the Workers' Compensation Act before such settlements will be viewed as good faith settlements under the Contribution Act.

Selleck v. Industrial Comm'n, 598 N.E.2d 443, 174 Ill. Dec. 246 (4th Dist. 1992), held that the Illinois Industrial Commission was a proper forum for determination of the employer's entitlement to a credit pursuant to section 5(b) of the Act. The court found no reason to require the employer to file a separate action to protect its section 5(b) rights.

The petitioner obtained a jury verdict in the amount of $480,390 and repaid $23,104.47 to the employer as reimbursement for previously paid workers' compensation benefits. The petitioner filed an application for adjustment of claim six months after satisfaction of the common-law judgment. The arbitrator found in favor of the petitioner and awarded further benefits. The employer properly filed a claim for credit by virtue of the personal injury award received by the claimant. The arbitrator found in favor of the employer entitling them to the credit.

The court upheld the employer's entitlement to credit pursuant to section 5(b) against any future compensation to the claimant based on the claimant's recovery against the third-party tort-feasor. Respondents should file a notice of claim and credit in any pending workers' compensation claim to preserve the employer's entitlement to a credit against any award where the claimant has received money judgment or a settlement from a third-party tort-feasor.

CAUSAL CONNECTION AND BURDEN OF PROOF CASES - Back to Table of Contents - Back to WC Index

Reliance Elevator Company v. Industrial Comm'n, 600 N.E.2d 4, 175 Ill. Dec. 381 (1st Dist. 1992), held that petitioner's claim for death  enefits may be established by circumstantial evidence which leads to a logical and reasonable inference of a causal connection between the employment and the resulting injury. Petitioner was found laying face down on the floor with a screwdriver one foot away and a tool pouch approximately two feet away from an electrical control panel. The police officer observed the control panel was on and an electrical current was arcing between two contacts on the panel. There were no burn marks or electrocution marks on the decedent. Testimony included medical findings that the claimant had congestive cardiomyopathy and a 25 to 50% occlusion of the coronary arteries. He had an abrasion on his forehead, right cheek and forearm and according to the physicians, had a "sick heart." There was no evidence of a heart attack. The medical opinions concluded that he suffered a low voltage electrocution. His heart disease made him more susceptible to such an electrocution. The respondent argued that there was no direct or circumstantial evidence to show that the claimant was electrocuted during the course of his employment. The appellate court affirmed the Commission's finding that the circumstantial evidence combined with the deputy medical examiner's postmortem exam provided a strong and reasonable inference that the claimant died of a low voltage electrocution. This case affirms the Commission's authority to construct a compensable claim from circumstantial evidence without any direct evidence or proof that the incident took place.

Caterpillar v. Industrial Comm'n, 228 Ill. App. 3d 288, 591 N.E.2d 894, 169 Ill. Dec. 390 (3d Dist. 1992), affirmed an Industrial Commission finding that the petitioner suffered 100% permanent partial loss of use of the right hand when it was caught between a jig-mill and an engine block despite testimony that the injury was sustained while harvesting potatoes the weekend before he reported his injury to his foreman. The testimony of Dr. Beckenbaugh from the Mayo Clinic described petitioner's condition as Secretan's disease. This disease is a process initiated by a single traumatic injury to the hand which is perpetuated by minor trauma. According to the doctor, the crush injury sustained by the petitioner at work was not in and of itself the cause of Secretan's disease, but was to a reasonable degree of medical certainty, the initial injury which gave rise to the condition. He stated that the repetitive trauma, in conjunction with the initial injury, is the cause of Secretan's disease.

The court found the claimant's disability was compensable even though it was caused by nonwork-related trauma. The petitioner's burden of proof requires that he only show that some act or phase of employment was a causative factor of the resulting injury. This case affirms the liberal construction the courts are willing to place on petitioner's burden of proof requirements and willingness to find a causal relationship between the employment and conditions of ill-being.

Gust K. Newberg Construction v. Industrial Comm'n, 230 Ill. App. 3d 96, 594 N.E.2d 758, 171 Ill. Dec. 614 (3d Dist. 1992), held that where a petitioner filed separate claims for two injuries against separate employers, the arbitrator's finding awarding benefits to the petitioner against the first injury appropriate and not against the manifest weight of the evidence. Petitioner filed two applications for two injuries against two separate employers. The petitioner was initially injured on April 8, 1987. He continued to work for the first employer for a month after the accident and then was laid off. After the layoff, he returned to work for the second employer and was injured on January 5, 1988. He has not worked since that time. The first employer argued that the Commission's determination that the claimant's current condition of ill-being regarding his cervical spine and knee were caused by the initial injury was against the manifest weight of the injury. The first employer argued that the Commission's determination was incorrect due to the fact that the claimant continued to work after the original incident and was not restricted in his work duties until after the second incident. The appellate court disagreed.

The court found that the evidence established the claimant continued to work after the incident but was helped by his co-employees and did not lift heavy items but continued to work in order to make a living. His activities did not involve heavy lifting, and he testified that he became progressively worse as time passed. The appellate court was not going to punish the claimant for attempting to continue to be employed. The appellate court found that the medical evidence presented at arbitration established that the cervical disc and left knee injury were traceable to his work-related incident of April 8, 1987. On that basis, they concluded that the Commission's decision was supported by the evidence in the record.

The employer on the original incident is not going to be relieved of its obligation under the Workers' Compensation Act due to a subsequent incident which causes additional treatment and disability where the petitioner's employment after the original incident is not the same and he testifies to becoming progressively worse. The subsequent accident which makes his disability worse will not break the causal link between the current condition of ill-being and the original incident.

Peabody Coal Company v. Industrial Comm'n, 232 Ill. App. 3d 800, 596 N.E.2d 1287, 173 Ill. Dec. 408 (4th Dist. 1992), held that the trial court improperly set aside a Commission decision finding a causal relationship between petitioner's TMJ dysfunction and the original incident involving a trolley which came to an abrupt stop causing a whiplash-type injury. Medical opinions concluded that there was a causal relationship between the TMJ dysfunction and the accident of July 23, 1983. The appellate court refused to set aside the Commission's finding of causation despite the fact that the jaw clicking symptoms did not occur until several years later. Respondent's IME physician did not dispute petitioner's physician's conclusion as to causation although he would have expected symptoms of the disorder to appear earlier than they did. Based upon the medical testimony on causation, the Commission's decision was appropriate and the trial court should not have set aside the award.

Lenhardt Tool & Die Co. v. Industrial Comm'n, 232 Ill. App. 3d 693, 597 N.E.2d 1256, 174 Ill. Dec. 44 (5th Dist. 1992), held the Commission's original decision denying compensation based upon petitioner's extensive pre-existing history of problems in the knee was supported by the testimony of Dr. Holt. The circuit court's reversal on the basis of Dr. Stirnaman's opinion that the claimant had aggravated his pre-existing condition was wrong. The courts reaffirmed the precedent which establishes the Commission as the trier of fact including credibility of witnesses and choice between conflicting medical evidence. In the instant case, the Commission chose one of two opposing medical opinions. This choice will not be disturbed despite the circuit court selection of the opposite medical opinion. The appellate courts will defer to the Commission's conclusion concerning a choice between medical opinion.

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

Manis v. Industrial Comm'n, 220 Ill. App. 3d 657, 595 N.E.2d 158, 172 Ill. Dec. 95 (1st Dist. 1992), reversed a trial court's extension of TTD benefits. The appellate court confirmed the Commission's reduction of TTD benefits holding the claimant's condition had stabilized. The Commission's decision as to the duration of temporary total disability was not against the manifest weight of the evidence. The court rejected the arguments of both the claimant and the employer as to the TTD period holding once the injured employee's condition stabilized, he was no longer eligible for TTD benefits. The medical evidence suggested that claimant changed jobs to a less physically demanding job and noted that the claimant had permanent partial impairment. The court relied upon such testimony in support of its conclusion that the claimant's condition was permanent and had stabilized although the doctor had not expressed claimant's condition was permanent or had stabilized. The appellate court is willing to affirm disability through the point of stabilization of medical. This case can be used to support termination of benefits based upon such medical testimony.

HEARING LOSS CASES - Back to Table of Contents - Back to WC Index

Michalski v. Industrial Comm'n, 229 Ill. App. 3d 1079, 594 N.E.2d 747, 171 Ill. Dec. 603 (3d Dist. 1992), held in a case of first impression that permanent but only partial loss of hearing is to be calculated on the basis of 50 weeks pursuant to section 8(e)14. Two hundred weeks of compensation is to be awarded only when a claimant establishes permanent and total loss of hearing in both ears. The court affirmed the Commission's reduction in benefits based upon calculating the percentage of loss based upon the 50 week total rather than a 200 week total.

RETALIATORY DISCHARGE CASES - Back to Table of Contents - Back to WC Index

Miller v. J.M. Jones Co., 225 Ill. App. 3d 799, 587 N.E.2d 654, 167 Ill. Dec. 385 (4th Dist. 1992), appeal denied, 145 Ill. 2d 635, 596 N.E.2d 630, 173 Ill. Dec. 6 (1992), held that the trial court's dismissal of plaintiff's retaliatory discharge complaint on defendant's motion for directed verdict was proper where plaintiff failed to show an intent on the part of the defendant to interfere with plaintiff's rights under the Act. The court held that suspicions aroused by the fact that the company brought a new loss prevention safety manager into the company was not sufficient to establish a claim for retaliatory discharge. The petitioner injured his back in 1984 and 1985 and settled on contracts in 1987 resolving all issues including rehabilitation. The petitioner was sent a letter of termination referring to his medical restrictions making it impossible for him to be employed as a truck driver.

Hartlein v. Illinois Power Co., No. 72303, 1992 WL 246030 (Ill., October 1, 1992), held that the petitioner's claim did not support the trial and appellate court's ruling that the employer's directive to the petitioner regarding rehabilitation constituted a retaliatory discharge.

The petitioner injured his right foot in 1987 and was released on restrictions later that year. The company doctor in December of 1987 determined it would be unsafe for the claimant to return with those restrictions. Eventually, the claimant underwent rehabilitation and returned in 1988 as a meter reader. This assignment ended when his foot injury caused him more difficulty. The petitioner was rehabilitated and sent a list of prospective job listings for him to contact pursuant to the Act. Following that letter, the petitioner filed the instant action seeking a temporary restraining order. The Supreme Court found that the petitioner's right to a continuation of TTD was within the province of the Illinois Industrial Commission and the claimant did not have a clearly ascertainable right upon which to base a temporary restraining order.

The court held the following: (1) that Illinois law does not obligate an employer to retain an at will employee who is medically unable to return to his assigned position; (2) Illinois law does not obligate an employer to reassign such an employee to another position rather than terminate the employment; (3) an employer may fire an employee for excessive absenteeism even if the absenteeism is caused by a compensable injury; (4) that Illinois law allows employers to act on the basis of their employee's physical disability. It is only the request for benefits that state law puts off limits as a ground for decision.

The court found that the plaintiff was not discharged by the employer when they told him to contact other potential employers. The court noted that in order to receive TTD benefits under the Act, the claimant must establish not only that he did not work but that he was unable to work. The ultimate issue to be decided is the employer's motive in discharging the employee. The court found that there was no dispute that the plaintiff was unable to perform as an apprentice lineman or even as a meter reader and at the time of the employer's directive to seek other employment, the plaintiff had received approximately 16 months of TTD. The court found that while the ending of TTD benefits may be one of the by-products of undertaking rehabilitation, the eventual cessation of TTD benefits in no way makes such efforts on the employer's part discriminatory as defined by Kelsey.

OCCUPATIONAL DISEASE ACT CASES - Back to Table of Contents - Back to WC Index

Service Adhesive Company v. Industrial Comm'n, 226 Ill. App. 3d 356, 589 N.E.2d 766, 168 Ill. Dec. 366 (1st Dist. 1992), affirmed an Industrial Commission finding that the claimant was exposed to the chemical benzene during his employment as a glue maker for a year and a half while working for the respondent. The court found causal relationship based upon testimony of Dr. Hryhorczuk's testimony that the claimant's leukemia was most likely caused by his occupational exposure to benzene. Testimony at arbitration included claimant and fellow employees regarding the use of the chemical in an unventilated room. This was accepted over testimony of another employee that benzene was not used in the manufacture of glue. The respondent also raised notice and the statute of limitations as a defense. The court found that petitioner's telephone call to a secretary at work notifying the employer that he was hospitalized for hemorrhoids failed to inform the respondent that he had a disease which resulted from occupational exposure to benzene, but they found no prejudice to the employer as a result of lack of notice. The court also found that the application for adjustment of claim was notice of disablement which was given within three years of the last day of exposure. The petitioner was last employed on May 1, 1981 and filed his application for adjustment of claim on December 21, 1983 -- less than three years after the date of disablement.

HEART ATTACK CASES - Back to Table of Contents - Back to WC Index

Martin v. Industrial Comm'n, 227 Ill. App. 3d 217, 591 N.E.2d 108, 169 Ill. Dec. 228 (2d Dist. 1992), found no causal relationship between an employer's termination demand for return of company car and heart attack two days later. The Commission found the claimant had a history of chest pain and progressive coronary artery disease as well as a number of aggravating factors. The claimant smoked, drank and failed to follow dietary recommendations. The court also found that the claimant had a large amount of personal stress including marital problems. The woman with whom he was having an affair became pregnant. These non-occupational risk factors could account for his subsequent myocardial infarction.

Of particular interest is the court's handling of the argument that his heart attack was causally related to his termination and the employer's demand for the company car under threat of notification to the police. The petitioner had been recently informed of his poor work performance. The court held that the stress resulting from the fear of losing a job or actual termination is a normal and expected condition of employment life along with the accompanying insecurity and worry. They held that the claimant's allegation that there was a causal relationship between his termination and subsequent heart attack was without merit.

Cognato v. Industrial Comm'n, No. 1-91-0263WC, 1992 WL 143276 (1st Dist., June 26, 1992), demonstrates the liberal approach our appellate court has toward finding heart attack cases compensable. The employee died after tripping and falling while carrying a box of meat weighing 50 to 75 pounds. The cause of death was pericardial tamponade due to a ruptured myocardial infarction. Claimant's job included unloading boxes weighing 50 to 75 pounds. When he fell, he struck his head and did not move. He worked in a cold environment and complained of a blue right hand hours before the fall.

Respondent's medical evidence included the testimony of Dr. Michael Lesch. His opinion disputed causal relationship. He reasoned there was no causal connection because there was no data to show that effort affects the incidence of post-myocardial infarction ruptures and that the incidence of ruptures does not vary among the seasons of the year or geographic regions and effort does not affect the incidence of rupture. On Dr. Lesch's testimony, the Commission reversed the arbitrator's finding.

Dr. Lesch testified on cross-examination that proper treatment of a myocardial infarction patient was to limit his work activities and avoid exertion. Since his treatment included bed rest and minimal activity, the appellate court determined that exertion was a causative factor in the rupture of the myocardial infarction. Dr. Lesch testified that there was no evidence anywhere in the medical literature that correlates rupture to either physical exertion or temperature. The court found that Dr. Lesch's admissions concerning proper treatment of a myocardial infarction patient and his opinion of no causal connection between the decedent's work activities and death made no sense. Therefore, exertion is a causative factor and the cause of this employee's ruptured myocardial infarction. Justice McCullough and Stouder drafted a vigorous dissent holding that the appellate court should not reweigh evidence. The Commission found Dr. Lesch's reasoning acceptable and denied the claim. The dissenters concluded it was not their prerogative to reweigh the evidence and decide the case differently.

PERMANENT AND TOTAL CASES - Back to Table of Contents - Back to WC Index

ARA Services, Inc. v. Industrial Comm'n, 226 Ill. App. 3d 225, 590 N.E.2d 78, 168 Ill. Dec. 756 (1st Dist. 1992), held that the Commission's decision finding the claimant permanently and totally disabled pursuant to section 8(f) of the Act and denying benefits under section 8(e)18 of the Act was not against the manifest weight of the evidence.

The claimant had one year of high school, suffered the loss of an eye in 1959, suffered a low back injury in 1963, suffered an injury to his neck in 1966, and underwent a fusion of his lower spine in 1969. At age 51 while working as a field mechanic for the respondent, he felt a click in his neck while pushing a machine in December of 1983. He continued to have cervical strain type symptoms thereafter. In 1984, he underwent two surgeries. The first was a posterior cervical laminectomy from C2 to C5 and underwent a second surgery in which the laminectomy was extended to C7. He lost the feeling in his legs primarily on the right. As he was rehabilitated, he achieved some ability to drive.

The respondent contended the Commission decision was against the manifest weight of the evidence and that he should be disabled pursuant to section 8(e)18. Under this section, the respondent's liability for compensation would be limited to the loss of the member involved in the second accident, rather than the permanent total loss. They believed that the evidence showed the claimant had suffered a complete loss of the right leg and foot and that he was not incapable of working. This related to his ability to drive. The court disagreed.

The court reviewed the differences between an award pursuant to 8(e)18 and 8(f). The distinction between the two kinds of permanent total disabilities is that under section 8(f) there is a complete disability which renders the employee wholly and permanently incapable of work and he is left without a market for his skills and is otherwise unemployable. By contrast, section 8(e)18 is permanent and total only by legislative pronouncement. This section is not inconsistent with a continuing ability to work and in the event the pension is mandated, therefore it is not to be affected by an employee's return to work. The purpose behind section 8(e)18 is not merely to replace lost wages or to provide financial protection for workers' loss of earning power. It is broad enough to accommodate pain and inconvenience that accompany the specific case of loss of both hands, both feet, both arms or eyes even though the employee remains able to work.

The evidence in this case established that the petitioner was 56 years of age at the time of the hearing, had one year of high school eduction, could not spell or read well and the only type of work he performed since 1959 was that of a mechanic. His work required pushing heavy machines weighing 800 to 1,200 pounds unassisted and to carry tools weighing 20 to 25 pounds. Given his physical limitations and his problems walking and the fact that he suffered continual pain and could only be on his feet for two to three hours a day was evidence in support of permanent total disability under section 8(f).

The appellate court held that the respondent's evidence that he was capable of telephone solicitation work did not meet the respondent's burden of establishing the fact that regular and suitable employment was available for the petitioner. The appellate court was of the opinion that the petitioner had established that he was in the "odd-lot" category and was permanently totally disabled under section 8(f).

Grischow v. Industrial Comm'n, 228 Ill. App. 3d 551, 593 N.E.2d 720, 170 Ill. Dec. 831 (2d Dist. 1992), held that the Commission's modification of the arbitrator's finding of permanent and total disability was appropriate and the trial court improperly awarded permanent and total disability benefits to the petitioner. The Commission in its decision changed the permanent and total award to an award of 226-1/7 weeks of TTD and permanency to the extent of 40 percent of a person under section 8(d)2 of the Act. Of the five specific findings made by the Commission, the Commission's second finding noted that the claimant was involved in an auto accident several years after the alleged industrial accident. The Commission cited the claimant's answers to interrogatories arising from the common-law action as important. The claimant alleged she had not recovered from the effects of the collision in answers to those interrogatories. The Commission relied on Dr. Hejna who claimed the petitioner could perform full-time sedentary work and could lift up to 10 pounds occasionally, work above her shoulders and operate foot controls and drive a vehicle. Based upon conflicting evidence, the Commission decided the claimant was not permanently totally disabled and the trial court should have affirmed that decision.

Yaeger v. Industrial Comm'n, 232 Ill. App. 3d 936, 598 N.E.2d 263, 174 Ill. Dec. 66 (4th Dist. 1992), affirmed the Commission's decision finding the claimant permanently totally disabled. The petitioner suffered an injury from a fall in 1981. Within two months of the incident, the claimant had episodes of vertigo and tremors. There was conflicting medical testimony as to whether the fall caused or aggravated his condition such that the tremors and vertigo were disabling. The arbitrator awarded permanent total disability based upon the conflicting medical. The trial court found that the Commission decision was against the manifest weight of the evidence and remanded it back to the Commission. The Commission changed its decision from 95 percent of a man to 45 percent of man.

The appellate court had little difficulty in deciding the arbitrator's original decision in 1983 should have been sustained. The court noted at the time of the hearing claimant's treating doctor had not released him to return to work because he suffered from tremors and vertigo. A neurologist's opinion that his condition prevented him from returning to construction work supported the decision. The other physicians who examined the claimant who believed he could return to ground level activities was rebutted by the claimant's testimony before the Commission that he had attempted some soldering work but is tremors and vertigo made these tasks impossible. The court held that it was for the Commission based on its expertise in the area of workers' compensation to decide conflicting factual issues.

Baldwin Associates v. Industrial Comm'n, 232 Ill. App. 3d 928, 598 N.E.2d 999, 174 Ill. Dec. 367 (4th Dist. 1992), held in a three to two decision that a plumber-pipe fitter had established a prima facie case of permanent and total disability under section 8(f) of the Act. The claimant was awarded 20 percent of a leg for a knee injury by the arbitrator. He had lifting restrictions and difficulty walking up and down steps after the injury. He was 64 years of age and had indicated two years after the accident that he was not working and was retired. He had not sought employment or retraining because of his age. The majority opinion ignored this fact and focused on medical which indicated he was unable to return to work as a pipefitter. The employer failed to show that there was any work available to the claimant that could be performed on a sedentary basis or in any other capacity. This case stresses the need for such evidence on behalf of the employer in every case where permanent total disability is claimed.

The dissent focused on claimant's admission of retirement and desire not to seek employment or retraining because of his age. The dissent held "the Act was not designed to be a retirement system for persons in the claimant's position." They noted that none of the physicians testified that the claimant was permanently and totally disabled. At most, the doctors indicated the claimant could not return to work as a pipefitter. The dissent held that this did not meet the requirements of a determination the claimant was permanently and totally disabled.

MISCELLANEOUS CASES

Appeal Bond - Back to Table of Contents - Back to WC Index
Deichmueller Construction Co. v. Industrial Comm'n, No. 72439, 1992 WL 234990 (September 24, 1992), the Supreme Court affirmed the appellate court's holding that the attorney's signature on a section 19(f) bond was insufficient. The Illinois Supreme Court ruled that the decision would have only prospective application.

Interest and Attorneys' Fees - Back to Table of Contents - Back to WC Index
Poe v. Industrial Comm'n, 230 Ill. App. 3d 1, 595 N.E.2d 593, 172 Ill. Dec. 232 (2d Dist. 1992), held that the claimant was entitled to interest which continued to accrue because the respondent had not paid the full amount of the judgment including interest. The court found that the employer's delay in payment was not wilful. It related to interest on the award not payment of the award itself, therefore, attorneys' fees and costs were not awarded.

Neck Injuries - Back to Table of Contents - Back to WC Index
City of Alton v. Industrial Comm'n, 231 Ill. App. 3d 334, 596 N.E.2d 639, 173 Ill. Dec. 15 (5th Dist. 1992), held that the Commission had properly granted a section 19(h) petition increasing permanent disability benefits where the record showed the claimant's medical condition had improved since arbitration. The evidence revealed symptoms that the claimant felt were different from those at the initial arbitration. Petitioner did not establish they were materially greater at arbitration. Medical evidence submitted reflected the claimant's physical condition had improved since arbitration.

Collateral Estoppel - Back to Table of Contents - Back to WC Index
McCulla v. Industrial Comm'n, 232 Ill. App. 3d 517, 597 N.E.2d 875, 173 Ill. Dec. 901 (1st Dist. 1992), held that a pension board adjudication that the claimant's injury did not occur while on duty barred relitigation of that issue before the Commission. The "not in duty" pension awarded to the claimant barred his retrial before the Industrial Commission. The claimant had a full opportunity to adjudicate the issue of the work-related nature of his disability before that board. Petitioner was collaterally estopped from relitigating the issue before the Commission.

Loaned Employee - Back to Table of Contents - Back to WC Index
REO Movers v. Industrial Comm'n, 226 Ill. App. 3d 216, 589 N.E.2d 704, 168 Ill. Dec. 304 (1st Dist. 1992), upheld the finding that a loaned employee relationship existed. The court held that there was sufficient evidence in the record for the Commission to infer a contract of hire between the petitioner and the respondent and that the respondent had control over the petitioner regarding the manner of the work performed.

Declaratory Judgment - Back to Table of Contents - Back to WC Index
Conley v. Industrial Comm'n, 229 Ill. App. 3d 925, 594 N.E.2d 730, 171 Ill. Dec. 586 (4th Dist. 1992), held that the claimant failed to establish any facts at arbitration or before the Commission that suggested his attorney of record did not receive notice of the dismissal, and it could not be said that the Commission's decision denying claimant's petition to reinstate was an abuse of discretion.

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