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

General Tire and Rubber Co. v. Industrial Comm'n, 221 Ill. App. 3d 641, 582 N.E.2d 744 (5th Dist. 1991), held that overtime is specifically excluded from the calculation of wage but vacation pay could be included as a part of the employee's average weekly wage. The court concluded that if the Legislature had intended to exclude vacation pay it would have specifically stated it.

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

All Steel, Inc. v. Industrial Comm'n, 221 Ill. App. 3d 501, 582 N.E.2d 240 (2d Dist. 1991), held that petitioner's act of going to the parking lot to warm his car during his lunch breach is a reasonably necessary act of personal comfort which occurred in the course of his employment. The petitioner was injured while retrieving a fire extinguisher from his employer's premises. He fell on his way back to put out a fire in his car. Attempting to warm his car during the lunch break facilitated his departure at the close of his shift. The court was able to find a causal relationship between this act and petitioner's injury because of the snow and ice in the doorway of respondent's building. It is significant that the petitioner was injured on the employer's premises while performing his act of personal comfort. The court's determination of compensability focused on the fact that the condition of the employer's premises was at least a causative factor in the injury.

Fermi National Accelerator Lab v. Industrial Comm'n, No. 2-91-0356WC, 1992 Ill. App. LEXIS 28 (2d Dist. 1992) (January 15, 1992), upheld a Commission determination that both the injury away from work at a shopping mall while ambulating on crutches and the original injury suffered at work while stepping off a stoop on respondent's premises constituted a single accident. The petitioner originally twisted his right ankle while stepping off of a stoop on respondent's premises. The court distinguished the Caterpillar case determining that rocks upon which claimant stepped were not natural and the surrounding area could be considered a "defect." The court determined that the claimant's use of crutches was the result of the original incident. The Commission's determination that the two falls constituted a single compensable accident was not against the manifest weight of the evidence despite the fact that the slip and fall nine days later took place away from work at a shopping mall.

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

Robinson v. Liberty Mutual Ins. Co., 222 Ill. App. 3d 443 (1st Dist. 1991), held that a worker's compensation carrier is entitled to a lien against a medical malpractice settlement under section 5(b) of the Act for such payments that occurred after the act of malpractice which aggravated the employee's injury.

The court held that the carrier was not entitled to a lien in connection with portions of payment that occurred during a two and one-half year period between the petitioner's original injury and the surgery that aggravated the injury. The lien in this case was limited to the amount the employer was required to pay because of the malpractice.

Porro v. M.W. Powell Co., No. 1-89-2245, 1991 Ill. App. LEXIS 2133 (1st Dist. 1991) (December 24, 1991), held that a trial court's allocation of forty percent settlement to the wife for loss of consortium was reasonable and not an abuse of discretion despite the fact that the employer's lien could not attach to the wife's allocation. The court held that under Page v. Hibbard, 119 Ill. 2d 41, 518 N.E.2d 69 (1987), the employer's lien recovery under section 5(b) is not absolute. The trial court must scrutinize any settlement to make sure the allocation for loss of consortium is fair and reasonable. The court found no abuse of discretion in this case.

Sulser v. Country Mutual Ins. Co., No. 71569, 1992 Ill. LEXIS 21 (February 20, 1992), held that an insurer may reduce payments due an insured under uninsured motorist coverage by the amount of workers' compensation benefits received by the insured.

Plaintiff's husband was killed in a motor vehicle accident involving an underinsured motorist. The underinsured motorist benefits totalled $100,000. The policy specified that any amounts received by the insured from worker's compensation would be deducted from coverage. The plaintiff recovered $50,000 from the uninsured motorist and then sought payment from Country Mutual in the amount of $50,000, that is $100,000 (the limit of the underinsured motorist benefit), less the $50,000 recovered from the underinsured motorist. Because the plaintiff received more than $50,000 in workers' compensation benefits, Country Mutual contended it had no further obligation to the plaintiff under the policy.

After a review of the various statutes and cases on point, the court held that parties may contract to agree to any terms they choose unless the agreement is contrary to public policy. The plaintiffs agreed to the terms of their contract with Country Mutual. The court determined that a set-off of workers' compensation benefits is not contrary to public policy. Because the plaintiffs received $50,000 from the tort-feasor's insurance coverage and $50,000 from workers' compensation, Country Mutual has no obligation to them under the uninsured motorist policy.

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

Echelbarger v. Dixon Publishing Co., 221 Ill. App. 3d 457, 582 N.E.2d 295 (2d Dist. 1991), held that the Exclusive Remedy Doctrine barred plaintiff's common law suit for damages for outrageous delay in payment of workers' compensation benefits. The plaintiff alleged that the employer and its third party administrator caused him to suffer mental anguish, physical trauma and loss of services by withholding or delaying payments. The plaintiff alleged that the defendant's outrageous delay forced him to settle his claim for far less than it was worth. The court held that section 19(k) was the employee's exclusive remedy and his common law action was barred.

Fitzgerald v. Paul L. Pratt and Pratt & Callis, P.C., No. 5-90-0017, 1992 Ill. App. LEXIS 59 (5th Dist. 1992), held that plaintiff's common law right of action against the defendants was not barred by section 5(a) of the Workers' Compensation Act where plaintiff's suit was for sexual harassment assault and failure to provide a safe work place. The plaintiff worked as a secretary for the defendant and alleged intentional infliction of emotional distress for sexual harassment. The court cited Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 564 N.E.2d 1222 (1990), which held that the exclusive remedy provision does not bar employees from pursuing common law actions against co-employees for injuries arising out of intentional torts.

Village of Winnetka v. Illinois Industrial Comm'n, No. 1-90-3153WC, 1992 Ill. App. LEXIS 176 (1st Dist.) (February 7, 1992), held that a municipal ordinance enacted pursuant to the state Pension Code which provided medical and hospital expenses could bar an injured fireman from bringing a workers' compensation claim. The court's interpretation of section 22-307 held that no common law or statutory right to recover damages against such city or village was allowed where the city or village enacts an ordinance pursuant to sections 22-301 or 22-306.

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

Aetna Casualty & Surety Co. v. Crowther, Inc., 221 Ill. App. 3d 275, 581 N.E.2d 833 (3d Dist. 1991), held that a workers' compensation insurance carrier can obtain personal jurisdiction over aFlorida contractor in a declaratory judgment action to determine coverage where the out-of-state contractor hires Illinois residents. The court found that the hiring of Illinois residents was sufficient contact to sustain personal jurisdiction.

Franz v. McHenry County College, 222 Ill. App. 3d 1002 (2d Dist. 1991), held that a trial court lacked subject matter jurisdiction over plaintiff's complaint regarding the credit given to respondent for sick leave benefits paid. The plaintiff filed a complaint and application for entry of judgment pursuant to section 19(g) of the Workers' Compensation Act attempting to obtain review of the arbitrator's award so as to modify it to include matters extrinsic to the record. These matters involved predecision claims pertaining to the use of sick leave which should have been ruled on or clearly incorporated into the award.

The court held that in a section 19(g) proceeding the trial court exercises very limited and special statutory jurisdiction to permit the speedy entry of judgment on an award. The requirements of the court's subject matter jurisdiction are strictly construed. The plaintiff was first required to exhaust all remedies in proceedings before the Commission as a condition precedent to obtaining review in the circuit court. The court held that the plaintiff could not sit idly by permitting an arbitrator's decision to become final and then assert a claim in a collateral proceeding such as this one. The plaintiff could not be allowed to relitigate the arbitrator's decision in a section 19(g) proceeding designed for the entry of judgment.

Taylor v. Industrial Comm'n, 221 Ill. App. 3d 701, 583 N.E.2d 4 (1st Dist. 1991), held dismissal of appeal for lack of subject matter jurisdiction was proper. The claimant failed to file a request for summons as required under section 19(f). The court dismissed for lack of subject matter jurisdiction despite the fact that the appeal provisions of section 19(f) had been substantially complied with and the summons had actually been issued. The court cited Whitmer v. Industrial Comm'n, 187 Ill. App. 3d 409, 549 N.E.2d 353 (1989). The court held that it was well-established that a reviewing court must sua sponte inquire into its jurisdiction and if it determines that jurisdiction is lacking, the reviewing court must decline to proceed. This is another example of the highly technical aspects of appeal from the Illinois Industrial Commission to the circuit court.

MEDICAL EXPENSE CASES - Back to Table of Contents - Back to WC Index

General Tire & Rubber Co. v. Industrial Comm'n, 221 Ill. App. 3d 641, 582 N.E.2d 744 (5th Dist. 1991), held that challenges to medical expenses as being reasonable and necessary require the application of a reasonableness standard. Section 8(a) is limited to expenses which are reasonably required to cure or relieve from the effects of the accidental injury. The court held that a respondent is required to pay for medical expenses which are usual and customary for similar services in the community where the services are rendered. The respondent in the instant case provided no clear evidence that the doctor's charges were unreasonable. Challenges to the reasonableness of physician or hospital charges will require evidence that the charges were not usual and customary for similar services in a community where the services were rendered.

The court also ruled on travel expenses related to petitioner's care by a treating physician. The petitioner travelled approximately 100 miles to treat with his physician. The Commission found it was reasonable and necessary for the petitioner to travel and included $1,588 in medical expenses for travel. In affirming the Commission's ruling, the court noted that the doctor had been petitioner's treating physician since 1984, and was familiar with petitioner's condition and medical history. The court found that it was reasonable for the petitioner to seek the medical care from someone he knew and trusted. Furthermore, there was no evidence presented showing that there was any other surgeon in the area that would treat the petitioner with surgery. The only orthopedic surgeon in the area gave testimony that the surgery was not necessary. The court found that it was reasonable for the petitioner to seek treatment from someone who was willing to perform surgery to relieve his pain. The courts are willing to award travel expense for a petitioner seeking treatment from a physician who has cared for the plaintiff for some time.

Rousey v. Industrial Comm'n, No. 4-91-0333WC, 1992 Ill. App. LEXIS 100 (4th Dist. 1992) (January 30, 1992), denied a wife's request for maintenance expenses despite support from Dr. Eilers. The claimant required supervision akin to what one would provide a child. The petitioner suffered serious brain injury but recovered and was self-sufficient to the extent he could attend to his basic needs, get about the community on his own, and feed and clothe himself without assistance. He could drive, hunt and perform limited routine household chores and interact with his children to a limited extent. The court found that claimant's spouse provided no medical assistance. In denying the wife's claim for maintenance expenses, the court held that in the absence of medical care or active attendance to claimant's basic needs, a Commission's determination that the claimant's spouse is performing household duties which are not compensable within the meaning of the Act is not against the manifest weight of the evidence.

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

Dickerson v. Industrial Comm'n, No. 5-90-0810WC, 1991 Ill. App. LEXIS 2114 (5th Dist. 1991) (December 20, 1991), held that section 1(f) does not contain a discovery rule and petitioner's claim for benefits is barred because his disablement did not occur within three years of exposure. The petitioner brought an occupational disease claim on May 18, 1983, alleging he had contracted silicosis arising out of and in the course of his employment with the respondent between 1959 and 1971. The court affirmed its previous decision in Goodson v. Industrial Comm'n, 190 Ill. App. 3d 16, 545 N.E.2d 975 (1st Dist. 1989), holding the action barred where disablement occurred more than three years after the last date of exposure. The court found section 1(f) of the Act operates as a statute of repose, and it is not subject to a discovery rule.

Hutson v. Industrial Comm'n, No. 5-90-0842WC, 1992 Ill. App. LEXIS 45 (5th Dist. 1992) (January 16, 1992), held that the Industrial Commission applied the proper standard in awarding the claimant permanent disability to the extent of sixty percent of a man pursuant to section 8(d)(2) of the Act. Petitioner was a coal miner for 27 years and developed pneumoconiosis as a result of his work place exposure to coal dust.

The petitioner established through his treating physician that he was "considerably impaired." The doctor did not indicate, however, that the claimant was totally disabled. The doctor testified it would be very difficult to state that the claimant was disabled from doing heavy manual labor was a result of his respiratory problems. The court held that the claimant did not make out a prima facie case that he fell in the odd lot category. The burden remained upon him to show that considering his present condition, in light of his age, experience, training and education that he was permanently and totally disabled under section 8(f) of the Act. The court affirmed the Commission's finding of permanency and determined that the claimant failed to prove that as a result of the occupational disease he was unable to perform other regular and continuous employment for which he was qualified.

Freeman United Coal Mining Co. v. Industrial Comm'n, No. 5-91-0383WC, 1992 Ill. App. LEXIS 178 (5th Dist. 1992) (February 5, 1992), held where there is conflicting medical testimony on causal relationship, the appellate court will defer to the Commission and its decision to rely upon the opinions of the decedent's treating physician and of the pathologist who performed the autopsy. The Industrial Commission concluded the experts determined that the decedent's pulmonary disease was severe enough to start a causal chain. The conclusion is implicit in the opinion expressed by the experts that the decedent's pneumoconiosis was a factor contributing in his death. The court held in light of all the evidence it was not against the manifest weight of the evidence for the Commission to have reached the decision in favor of the claimant. This is another example of the appellate court's deference to the Industrial Commission's determination regarding conflicting medical evidence.

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

Knecht v. Radiac Abrasives, Inc., 219 Ill. App. 3d 979, 579 N.E.2d 1248 (5th Dist. 1991), upheld a judgment awarding compensatory damages on a record with conflicting evidence. The court found that a jury could find for plaintiff where a return to work slip placed limitations upon the plaintiff for only two weeks. The plaintiff could have performed his old job after two weeks but did not return because he believed the personnel director discharged him when he ushered him to the door and told him not to return accusing him of being "in cahoots" with his doctor. The court believed that the verdict on compensatory damages was supported by this evidence. The court also held that a jury has the freedom to refuse to impose punitive damages in a retaliatory discharge case. The court also refused to allow testimony from the employer regarding the employer's previous handling of workers' compensation claims.

Melton v. Central Illinois Public Service Co., 220 Ill. App. 3d 1052, 581 N.E.2d 423 (4th Dist. 1991), held that the retaliatory discharge doctrine in Illinois as stated in Kelsay and Hinthorn does not extend to threats of discharge or actual discipline short of discharge. The petitioner could be sanctioned for excessive absences from work under the employer's policies even if the absences were due to work-related injuries. The court refused to expand the tort retaliatory discharge to include threatened retaliation or discipline. A plaintiff must show a coerced resignation or actual discharge in order to state a valid cause of action for retaliatory discharge. Merely a threat to discharge or discipline is not sufficient to state a claim under Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978).

MISCELLANEOUS CASES

Discoverable Videotape - Back to Table of Contents - Back to WC Index
Neuswanger v. Ikegai America Corporation, 221 Ill. App. 3d 280, 582 N.E.2d 192 (3d Dist. 1991), held that a videotape prepared by an expert for the employer's workers' compensation insurance carrier can be discovered in a subsequent common law action against a product manufacturer.

Carriers and employers should carefully consider the benefit of a videotape or other report produced while handling the workers' compensation claim. It may be discoverable in the subsequent third party claim.

Appeal - Back to Table of Contents - Back to WC Index
Sapp v. Industrial Comm'n, 222 Ill. App. 3d 1068 (4th Dist. 1991), held that the appellate court could not determine whether the Industrial Commission's decision was against the manifest weight of the evidence where the appellant's brief merely cited transcripts and medical reports. The court held that appellate counsel are urged to make certain that the record on appeal contains all of the necessary transcripts to enable the appellate court to review the issues raised. Merely citing such documents in briefs is not sufficient. The record on appeal must contain the actual transcript.

McDuffee v. Industrial Comm'n, 222 Ill. App. 3d 105, 583 N.E.2d 598 (2d Dist. 1991), reversed the trial court's granting of a motion to quash summons in dismissing claimant's appeal. The court found that the claimant's petition for recall was not a petition for rehearing or reconsideration on the merits. It was for clarification as to what was being granted. The court held that the claimant's request for summons was properly and timely filed after receipt of the Commission's corrected decision. The limitations period for appeal began at the time the Commission issued the corrected decision not the earlier decision.

Subpoena Practice - Back to Table of Contents - Back to WC Index
Jones v. Industrial Comm'n, No. 2-91-0422WC, 1992 Ill. App. LEXIS 29 (2d Dist. 1992), held that the act of securing written medical records by means of a deficient subpoena does not contravene principles set forth in Petrillo v. Syntax Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952 (1st Dist. 1986). The Commission rules require that unless otherwise agreed by the parties, witnesses or documents may only be subpoenaed to appear or be produced at the time and place set for hearing of the cause. The court held that the subpoena did violate the Commission rule in that it required the doctor to appear at a time and place other than the time and place set for hearing when there was no agreement between the parties to do otherwise. The court held that the Commission had discretion to examine the records in denying the claim despite the violations of the Commission rules regarding subpoenas.

Independent Contractor - Back to Table of Contents - Back to WC Index
Peesel v. Industrial Comm'n, No. 1-91-0047WC, 1992 Ill. App. LEXIS 15 (1st Dist.) (January 10, 1992), reversed a Commission finding of independent contractor status. While the claimant owned and operated equipment leased to the employer, the evidence showed the employer controlled the work and could discharge the claimant at will. The respondent failed to produce evidence on the issue of the right to control the work performed and failed to rebut testimony from the petitioner regarding the respondent's right to discharge. The court also found the contract significant in that it did not describe the claimant as an independent contractor. There was also testimony that respondent's vice-president had assured him that he was covered by his workers' compensation insurance.

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