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

Idiopathic Falls - Back to WC Index
An employee's death after an unexplained fall down a flight of stairs did not arise out of employment. Merely walking down stairs is not a hazard uniquely related to employment. It is an ordinary activity engaged in by the general public, and is not a risk greater than those faced outside of work. William G. Ceas & Co. v. Industrial Comm'n, No. 1-92-0406WC, 1993 WL 77525 (1st Dist., March 19, 1993)

Section 11 Recreation Cases - Back to WC Index
Plaintiff's negligence suit was not barred by the exclusive remedy doctrine where the record established that the company party was a voluntary recreational program within the meaning of section 11 of the Act. All employees were invited and relieved of their duties for the day, but the employees were not required to attend the party. Glassie v. Papergraphics, ___ Ill. App. 3d ___, 618 N.E.2d 885, 188 Ill. Dec. 315 (1st Dist. 1993)

An injury to a correction officer while playing basketball did not arise out of and in the course of employment, despite evidence of employer control and receipt of benefit from sponsoring the team. There was no evidence that he was ordered or assigned to play. While an employer's control over the recreational activity may corroborate a claim that an employee's participation was ordered or assigned, it is not of itself sufficient to support an award of benefits independent of proof of an employer's assignment or direction to participate in the activity. Pickett v. Industrial Comm'n, No. 1-92-1631WC, 1993 WL 293607 (1st Dist., Aug. 6, 1993)

"On Call" Cases - Back to WC Index
A police officer's injury received during a traffic accident while returning to the station after eating lunch did arise out of and in the course of his employment because he was subject to being on call. His radio was turned on, and he would have responded to any request for assistance or emergency that he encountered. He was not acting outside of his employment- related duties or engaged in any purely personal diversion or enterprise. The employer retained authority over the employee by actively monitoring a police radio during the course of his return trip to the station. City of Springfield v. Industrial Comm'n,
244 Ill. App. 3d 408, 614 N.E.2d 478, 185 Ill. Dec. 344 (4th Dist. 1993)

Intoxication Cases - Back to WC Index
A claim for benefits was upheld where evidence established petitioner was able to perform his work after consuming alcohol. He was specifically performing a job task when he slipped and fell on oil. The defense of intoxication could only succeed if the employer could show that either the intoxication was the sole cause of the injury or that the intoxication was so excessive as to constitute an abandonment of his employment. Lock 26 Construction v. Industrial Comm'n, 243 Ill. App. 3d 882, 612 N.E.2d 989, 184 Ill. Dec. 113 (5th Dist. 1993)

Petitioner's injuries sustained in a fall down stairs while working as a bartender were not compensable despite witness testimony that she was not intoxicated and able to perform her job. The blood alcohol tests and medical expert testimony confirmed she was intoxicated (BAC .288). The medical testimony of intoxication was more persuasive than evidence she could continue in her employment. Parro v. Industrial Comm'n, No. 1-92-3132WC 1993 WL 263557 (1st Dist., July 16, 1993)

Travelling Employees - Back to WC Index
Industrial Commission reversed an award of permanent total disability for an emergency room physician who was injured while traveling to a hospital. The court found he was paid for time spent in respondent's hospital. While the respondent may have considered the physician's driving distance in setting the hourly rate, it did not pay for travel time. Martinez v. Industrial Comm'n, 242 Ill. App. 3d 981, 611 N.E.2d 545, 183 Ill. Dec. 282 (4th Dist. 1993)

A travelling employee may be compensated for injuries sustained while he is engaged in recreational activities as long as those activities are reasonable and foreseeable. The court found claimant's unexplained direction of travel was not work-related. Bailey v. Industrial Comm'n, 247 Ill. App. 3d 204, 617 N.E.2d 305, 187 Ill. Dec. 97 (1st Dist. 1993)

A travelling employee's injury was work-related since he was travelling a direct route from a motel to the job site and was carrying in his truck several items of equipment belonging to the employer. This activity was reasonable and foreseeable at the time of his injury. Chicago Bridge & Iron v. Industrial Comm'n, ___ Ill. App. 3d ___, 618 N.E.2d 1143, 188 Ill. Dec. 573 (5th Dist. 1993)

Assaults - Back to WC Index
Where an employer's scheduling policy was the cause of an assault, injuries arising from an attack by a co-worker were compensable. Such assaults at the workplace during work hours are compensable if the result of a work dispute, and the petitioner is not the aggressor. Village of Winnetka v. Industrial Comm'n, No. 1-92-4423WC, 1993 WL 284104
(1st Dist., July 30, 1993)

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

Petitioner's injuries resulting from intentional torts committed by a supervisor and co- workers were unexpected and unforeseen and not authorized by the employer. As a result, these injuries were "accidental" under the Act, and petitioner's common-law action against the employer based on respondent superior was barred by the exclusive remedy doctrine.

Although the Act prohibits an employee from pursuing a negligence action against a fellow employee for workplace injuries, it does not prohibit an employee from seeking redress against a co-employee for injuries arising out of intentional torts. The court sustained plaintiff's actions against a co-worker and supervisor who committed intentional torts upon her. Richardson v. County of Cook, No. 1-92-0818, 1993 WL 281854 (1st Dist., July 27, 1993)

Plaintiff's common-law action was barred by the exclusive remedy doctrine where defendant's duties as agent of the employer and as owner were so intertwined to be indistinguishable. The court was unable to find a breach of duty unrelated to the employer's duty to provide a safe scaffold and distinctly flowing from defendant's role as property owner. Mere ownership of the premises does not trigger liability under the Structural Work Act. Incandela v. Giannini, No. 2-92-0675, 1993 WL 335162 (2d Dist., Sept. 1, 1993)

Plaintiff's common-law action against a co-employee nurse who directed the plaintiff to return to work contrary to recommendations of physicians resulting in petitioner receiving further injury was barred by the exclusive remedy doctrine. The employee had received benefits by settling her compensation case. While the Act does not provide the exclusive remedy for an individual injured as a result of a co-employee's intentional conduct, the individual is, in effect, bound to an election of remedies upon receiving compensation under the Act. Vance v. Dinatha Wentling, No. 2-92-0954, 1993 WL 340939 (2d Dist., Sept. 7, 1993)

Plaintiff's common-law action against an employer for failure to provide medical care was barred by the exclusive remedy doctrine. Whatever duty the defendant owed to the decedent arose out of the employer-employee relationship where plaintiff made no allegations that the defendant committed an intentional tort. Handzel v. Kane-Miller Corp., 244 Ill. App. 3d 244, 614 N.E.2d 206, 185 Ill. Dec. 72 (1st Dist. 1993)

Plaintiff's common-law action against an employer was barred by the exclusive remedy doctrine because she admitted filing her claim with the Commission and receiving benefits following an award. While mere receipt of workers' compensation benefits may not bar plaintiff's action, filing an application for adjustment of claim alleging the death was accidental and thus compensable was inconsistent with her common-law complaint alleging the death was intentionally caused by the employer and falls outside of the Act's exclusivity provisions. James v. Caterpillar, Inc. and Spectrulite Consortium, Inc., 242 Ill. App. 3d 538, 611 N.E.2d 95, 183 Ill. Dec. 242 (5th Dist. 1993), appeal denied, 151 Ill. 2d 564, 616 N.E.2d 335, ___ Ill. Dec. ___ (1993)

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

An employer was estopped to assert the statute of limitations defense where the employee detrimentally relied on the insurer's payment of medical bills and arrangement of independent medical examinations. The insurer also failed to advise the employee of the three-year statute of limitations. Herlihy Mid-Continent Co. v. Industrial Comm'n, No. 1-92-1437WC, 1993 WL 306950 (1st Dist., Aug. 13, 1993)

A civil suit for the use and benefit of the compensation carrier to recover sums paid under the Act for death and funeral expenses was time barred by the one year statute of limitations found in section 8-101 of the Illinois Tort Immunity Act. Estate of Ken Herington v. County of Woodford, No. 4-93-0190, 1993 WL 343399 (4th Dist., Sept. 9, 1993)

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

It was within the Commission's discretion to use the iron worker's earnings on the date of injury to obtain the average weekly wage, rather than speculate on a possible change in wage rates between the date of injury and the Commission's award where the wage on the date of the injury was the only evidence in the record. The court also ruled the maximum rates contained in section 8(b)(4) apply to 8(d)(1) awards. Fernandes v. Industrial Comm'n, 246 Ill. App. 3d 261, 615 N.E.2d 1191, 186 Ill. Dec. 134 (4th Dist. 1993)

Petitioner was not disqualified from a continuing 8(d)(1) award because he left the employer for a job with less hours per week. There was no evidence the status of the claimant's disability had changed. He continued to be entitled to benefits under 8(d)(1) for the duration of his disability and did not have to prove he was unable to find employment at wages he received as a surface grinder. Rutledge v. Industrial Comm'n, 242 Ill. App. 3d 329, 611 N.E.2d 526, 183 Ill. Dec. 263 (1st Dist. 1993)

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

A State of Illinois subrogation suit for recovery of its workers' compensation lien was subject to the two year statute of limitations. The term "employer" under the Act expressly includes the State when it is asserting a right of reimbursement under section 5(b). The State is to be treated no differently than any other employer. People of the State of Illinois, ex rel, Illinois Department of State Police v. Mamok, 247 Ill. App. 3d 366, 617 N.E.2d 310, 187 Ill. Dec. 102 (1st Dist. 1993)

An employer is entitled to reimbursement of compensation payments made to the extent the plaintiff has obtained a recovery in a common-law suit. To hold otherwise would permit a double recovery. The court remanded the case for an evidentiary hearing to determine if benefits paid to the plaintiff for a second injury could be included in the lien against plaintiff's recovery in the common-law action involving the first work-related injury. Fret v. Tepper and Illinois Department of Transportation, ___ Ill. App. 3d ___, 618 N.E.2d 526, 187 Ill. Dec. 935 (1st Dist. 1993)

A borrowing employer is entitled to the Kotecki limitation on its contribution liability. The court rejected an argument that the Kotecki limitation applied only to an employer paying workers' compensation benefits out of its own pocket. Costiloe v. Allis-Chalmers Corp., 245 Ill. App. 3d 896, 615 N.E.2d 798, 185 Ill. Dec. 928 (3d Dist. 1993)

Decedent's wife's cause of action for recovery of death benefits under the Structural Work Act was not subject to a lien for death payments made by the employer. Her cause of action was a distinct one brought on behalf of a dependent of a deceased person in the dependent's individual capacity and not a cause of action in which the employee or his personal representative was plaintiff. Schrock v. Shoemaker, 246 Ill. App. 3d 372, 615 N.E.2d 1298, 186 Ill. Dec. 241 (4th Dist. 1993)

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

There was no recovery for a non-traumatically induced mental disease where petitioner alleged that his schizophrenia was caused by his employment. Factors allegedly contributing to his schizophrenia were the same for every employee. He failed to show the pressure to not produce scrap, a closely timed production schedule, or a change to new machine were conditions that were extraordinary. Runion v. Industrial Comm'n, 245 Ill. App. 3d 470, 615 N.E.2d 8, 185 Ill. Dec. 713 (5th Dist. 1993)

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

Petitioner's burden of proof in a repetitive trauma claim requires the claimant establish a repetitive job task. He must establish he performed the same task in a repetitive fashion on a daily basis. Petitioner acknowledged he did not perform the same task every day but performed a limited number of rigorous tasks in awkward positions on a regular cycle over a period of 12 years. The Commission's denial of compensation was upheld on this evidence where there was conflicting medical testimony as to causation. Petitioner failed to prove a repetitive trauma claim by not establishing use of particular tools or objects or lifting on a daily basis. Williams v. Industrial Comm'n, 244 Ill. App. 3d 204, 614 N.E.2d 177, 185 Ill. Dec. 43 (1st Dist. 1993)

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

Section 1(f) is applicable to a claim based upon coal miner's pneumoconiosis. The employee was able to prove disablement with his testimony and that of the treating physicians concerning breathing problems which began four to five years prior to leaving employment. Plasters v. Industrial Comm'n, 246 Ill. App. 3d 1, 615 N.E.2d 1145, 186 Ill. Dec. 88 (5th Dist. 1993)

An executive secretary failed to show her condition of ill-being was caused by an exposure in her workplace since her symptoms were long term in nature and many had occurred prior to starting at work. Respondent's expert found her condition to be genetic and not the result of her work environment. Weekley v. Industrial Comm'n, 245 Ill. App. 3d 863, 615 N.E.2d 59, 185 Ill. Dec. 764 (2d Dist. 1993)

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

The court affirmed a reversal of an Industrial Commission denial of benefits. The court reviewed the employer's examining doctor's opinions and found that he never stated that the September 27 incident was not the cause of the injury. He merely said "it's difficult to tell." The court accepted the treating surgeon's opinions concerning causal relationship and did not penalize the employee for a 21 month delay in treatment in light of his fear of a second back operation. Montgomery Elevator Co. v. Sabask and Illinois Industrial Comm'n, 244 Ill. App. 3d 563, 613 N.E.2d 822, 184 Ill. Dec. 505 (3d Dist. 1993)

The court held a causal connection between a condition of ill-being and a work-related accident can be established by showing a chain of events where an employee has a history of prior good health and following a work-related accident, the employee is unable to carry out his duties because of a physical or mental condition. A court is more likely to sustain psychological impairment claim where it originates from trauma, and there is good before and after causation testimony. BMS Catastrophe v. Industrial Comm'n, 245 Ill. App. 3d 359, 614 N.E.2d 473, 185 Ill. Dec. 339 (4th Dist. 1993)

The medical evidence and claimant's testimony supported a Commission finding that the claimant's condition of ill-being was the result of the first accident despite first treatment and lost time occurred after the second injury. He had not healed sufficiently from this incident before another occurrence caused him to suffer a recurrence of his back injury. Returning to work alone is not determinative that the injury was not caused by the initial accident. Testimony established it was only through the use of medicine and a self-imposed lifting restriction that he was able to return to work. J & J Transmissions v. Industrial Comm'n, 243 Ill. App. 3d 692, 612 N.E.2d 877, 184 Ill. Dec. 1 (2d Dist. 1993)

MISCELLANEOUS CASES

Penalty Decisions - Back to Table of Contents - Back to WC Index
The Commission's award of penalties and attorneys' fees was proper where employer paid only a portion of award rather than appealing the decision. Death from an unrelated cause does not terminate the employer's obligation to pay the balance of the award to decedent's wife. Electro-Motive Division, General Motors Corp. v. Industrial Comm'n, No. 1-92- 0762WC, 1993 WL 284102 (1st Dist., July 30, 1993)

A circuit court did not have subject-matter jurisdiction in a small claims suit to consider an award of fees for representation in a workers' compensation review proceeding. Muller v. Jones, 243 Ill. App. 3d 711, 613 N.E.2d 271, 184 Ill. Dec. 244 (4th Dist. 1993)

Hearing Loss Calculation - Back to Table of Contents - Back to WC Index
A plain reading of section 16(d) discloses a legislative intent that employers not be held liable for any hearing loss occurring prior to July 1, 1975. The arbitrator had only given the employer credit for compensable loss occurring prior to July 1, 1975. Young v. Industrial Comm'n, No. 3-92-0783WC, 1993 WL 306806 (3d Dist., August 6, 1993)

TTD/Two Doctor Rule - Back to Table of Contents - Back to WC Index
A petitioner was entitled to TTD through the date of release despite seeking treatment from a third choice physician at his own expense. The court required the claimant to pay for medical expenses after exceeding his employer paid treatment choices under section 8(a). Adams v. Industrial Comm'n, 245 Ill. App. 3d 459, 614 N.E.2d 533, 185 Ill. Dec. 399 (5th Dist. 1993)

19(h) Petition - Back to Table of Contents - Back to WC Index
Despite the Briggs decision prohibiting TTD awards after permanency determinations, where a condition continues to degenerate resulting in an increase in permanent disability, additional TTD can be awarded. World Color Press v. Industrial Comm'n, ___ Ill. App. 3d ___, 619 N.E.2d 159, 188 Ill. Dec. 795 (5th Dist. 1993)

Ex Parte Hearing - Back to Table of Contents - Back to WC Index
An arbitrator's determination to proceed ex parte was improper because the employer had not received the statutory notice of hearing. The arbitrator did not have jurisdiction without proper notice. The award was void. Greenlee Tool v. Industrial Comm'n, 245 Ill. App. 3d 500, 614N.E.2d 900, 185 Ill. Dec. 459 (2d Dist. 1993)

8(j) Credits - Back to Table of Contents - Back to WC Index
Credits under section 8(j) are against payments for temporary total disability and cannot be setoff from a permanent partial disability award. Bettis v. Oscar Mayer Foods Corp., 242 Ill. App. 3d 689, 610 N.E.2d 1354, 183 Ill. Dec. 110 (4th Dist. 1993)

Supreme Court Rule 137 - Back to Table of Contents - Back to WC Index
Supreme Court Rule 137 sanctions for frivolous pleadings do not apply to workers' compensation cases. Lawlyes v. Industrial Comm'n, 246 Ill. App. 3d 226, 614 N.E.2d 547, 185 Ill. Dec. 413 (3d Dist. 1993)

Fraud - Back to Table of Contents - Back to WC Index
Supreme Court refused to re-open Industrial Commission case which had been settled for nine years despite plaintiff's allegation of fraud by his attorney, Richard Price. He claimed he did not authorize a settlement in full and was told the sum paid was a partial payment. Colvin v. Hobart Brothers, No. 74197, 1993 WL 271023 (July 22, 1993)

Evidence: Additional Medical Testimony - Back to Table of Contents - Back to WC Index
Claimant's attempt to have additional medical testimony presented live on review was properly rejected where the doctor did not say he was unavailable on the date of arbitration. Wantroba v. Industrial Comm'n, ___ Ill. App. 3d ___, 618 N.E.2d 672, 188 Ill. Dec. 102 (1st Dist. 1993)

De Minimis Exception to Petrillo - Back to Table of Contents - Back to WC Index
An ex parte communication with a treating doctor does not always lead to a sanction. The employee failed to establish disclosure of any private or confidential information regarding his treatment. The employer should not have been sanctioned, and the Commission should have considered the doctor's evidence deposition before reaching a determination. Illinois Bell Telephone Co. v. Industrial Comm'n, No. 1-92-1222WC (1st Dist., July 16, 1993)

Jurisdiction - Back to Table of Contents - Back to WC Index
A 14 year gap between the date of hire in Illinois and the injury, and no significant contacts during that period, supported a finding of no jurisdiction over an injury which occurred out of state. United Airlines v. Industrial Comm'n, No. 1-92-2248WC, 1993 WL 315989 (1st Dist., August 20, 1993)

Illinois Pension Code - Back to Table of Contents - Back to WC Index
Pension Code Section 9-159(c) provides that any disability benefits paid or recoverable under the Workers' Compensation Act shall serve to offset Pension Code duty disability benefits. DiFoggio v. Retirement Board of the County Employees Annuity and Benefit Fund of Cook County, No. 74563, 1993 WL 371637 (Sept. 23, 1993)

Retaliatory Discharge - Back to Table of Contents - Back to WC Index
Demotion and reduction of hours are covered activities under section 4(h) of the Act. The court found little difference between the retaliation by loss of employment by termination and retaliation by reduction of hours and demotion. Employers cannot circumvent the public policy recognized in Kelsay by performing retaliatory and discriminatory actions short of termination. Zimmerman v. Buchheit of Sparta, Inc., 245 Ill. App. 3d 679, 615 N.E.2d 791, 185 Ill. Dec. 921 (5th Dist. 1993)

Standard of Review Cases - Back to Table of Contents - Back to WC Index
Industrial Commission decision to increase TTD and PPD award should not be set aside by the trial court on issues of credibility. Lopez v. Plastic Management Corp., No. 1-92- 0063WC (1st Dist., Jan. 15, 1993)

A trial court properly set aside the Commission's award of 100% loss of use of hand where record was devoid of any evidence in support of finding of 100% loss of use to the claimant's right hand. There was no testimony he could not use his right hand and no medical evidence to support such a finding. The court held the Commission's decision on this issue was simply arbitrary and without basis in the record. Bryant v. Industrial Comm'n, No. 1-92-0808WC, 1993 WL 293557 (1st Dist., Aug. 6,
1993)

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