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

Intoxication: "Did You Ever Get High Joel?" - Back to WC Index
While intoxication and ingestion of an illegal substance in the workplace may be "Risky Business," it will not result in forfeiture of workers' compensation benefits in Illinois. The mere fact that an employee has ingested an illegal substance prior to the injury or death will not defeat a claim for benefits. Claimant and a co-worker began work on a scaffold at the 47th floor of a condominium building. During lunch, they smoked marijuana. As the claimant attempted to access the scaffolding, he fell to his death.

Intoxication which does not incapacitate an employee from following his occupation is not sufficient to defeat a claim for compensation even though the intoxication may contribute to cause the injury or death. This rule applies where the claimant ingested an illegal substance. OSHA records established unsafe working conditions could have exposed employees to fall hazards while using the scaffolding. A 12 to 24 inch gap existed between the building and the scaffolding and safety belts were not attached until the employees were on the scaffolding. His death could have been the result of these unsafe conditions. Therefore, his intoxication by ingestion of an illegal substance could not operate to forfeit his widow's claimed for workers' compensation benefits. Lakeside Architectural Metals v. Industrial Comm'n, No. 1-94-0243 WC (1st Dist., Oct. 28, 1994)

Bending And Stooping: Compensable - Back to WC Index
Bending and stooping to perform specific and unique job tasks can be found to be compensable. Claimant's duties required him to bend and stoop to read an air gauge approximately one foot off the ground and to do so on the uneven ground. This was different both in type and frequency from the bending and stooping to which the average member of the general public could be expected to ordinarily engage. Kemp v. Industrial Comm'n, ___ Ill. App. 3d ___, 636 N.E.2d 1237, 201 Ill. Dec. 805 (5th Dist. 1994)

Rough Riders: Truck Driving Repetitive Trauma Claims Compensable - Back to WC Index
Truck driver repetitive trauma claims resulting from rough rides or vibrations in truck cabs can be accepted as compensable if supported by competent medical testimony and where the driving environment includes worn seats, flattened springs, and old trucks. Claimant's back injury resulting from his years of driving an autohauler was compensable. Testimony concerning the age and quality of the truck cab, and the description of a very rough ride, created a risk greater than someone who commuted to work every day. Defense of these claims requires the respondent to establish a relatively new, cushioned, smooth-operating truck cab. Cassens Transport Co., Inc. v. Industrial Comm'n, 262 Ill. App. 3d 324, 633 N.E.2d 1344, 199 Ill. Dec. 353 (2d Dist. 1994)

Delayed Bending: Compensable - Back to WC Index
A medical opinion that bending four days later completed a rupture of a disk and caused a free fragment established petitioner's claim as compensable. Albrecht-Hamlin Chevrolet, Inc. v. Industrial Comm'n, 262 Ill. App. 3d 655, 635 N.E.2d 134, 200 Ill. Dec. 33 (5th Dist. 1994)

Speeding Alone: Not A Wilful Violation Of Statute - Back to WC Index
Injuries received in a one-car accident operated by a young and inexperienced driver while completing an errand for an employer were compensable. His speeding was negligent but not wilful and wanton and such conduct did not take him out of the scope of employment. Excessive speed alone does not disqualify an employee from coverage under the Act. Stembridge Builders, Inc. v. Industrial Comm'n, 263 Ill. App. 3d 878, 636 N.E.2d 1088, 201 Ill. Dec. 656 (2d Dist. 1994)

Going To And From The Fed Ex Box (Ceas Revisited): Compensable - Back to WC Index
Claimant's petition for rehearing in the Ceas case was granted and the court's opinion published in our Fall, 1993 Review of Recent Decisions was withdrawn. The appellate court has affirmed the Commission's decision finding the claimant had proved the risk of this type of injury was increased as a consequence of her work. The Commission had found as follows:

At the end of the workday, decedent had been told by her boss to prepare and mail a number of Federal Express envelopes. It was typical of the boss to make this type of last minute demand of decedent. Decedent rushed to prepare the employer's envelopes. She then hurriedly left the office. Her immediate destination was the Federal Express box located on the premises where she would mail the envelopes. In the process of quickly going down the stairs, decedent lost her footing, fell down the stairs and incurred the fatal injury. But for the employer's habit of requiring last minute preparation and mailing of Federal Express envelopes and the resulting stress that it placed on decedent, there would have been no fatal fall.

Going To And From The Doctor's Office: Not Compensable - Back to WC Index
Petitioner's injuries sustained while coming from a doctor's appointment for treatment of a prior work-related injury were not compensable. He had punched out at his regular time. The accident occurred as he left the clinic. An employee injured going to medical treatment immediately after an injury is still entitled to compensation. Injuries occurring on the way to or from a doctor's office will not be accepted as compensable where the visit occurred after the employee's working hours rather than immediately after the injury. Lee v. Industrial Comm'n, 262 Ill. App. 3d 1108, 635 N.E.2d 766, 200 Ill. Dec. 427 (1st Dist. 1994)

Not Advancing Employer's Interest: Compensation Denied - Back to WC Index
Injuries received from jumping off a tree stand platform while cutting a tree limb on the personal farm of the employer/father were not compensable. Claimant was a treasurer and manager of operations for the employer who owned two grocery stores and a farm. The purpose of cutting the limb out of the tree was to assist the claimant, his father, and the claimant's brother when they deer hunted. He was not performing a duty at the direction of or for the private benefit of the employer. Their actions did not advance the employer corporation's interest. Pryor v. Industrial Comm'n, ___ Ill. App. 3d ___, 640 N.E.2d 364, 203
Ill. Dec. 705 (5th Dist. 1994)

Sexual Assault On Premises: Compensable - Back to WC Index
Claimant's rape on company premises arose out of her employment. She was a dietary supervisor for a hospital and was attacked by intruders in an isolated hallway. She was raped repeatedly for two hours and found 12 hours later. The claimant was treated for post- traumatic stress disorder and was deemed permanently and totally disabled.

The court found her assault arose out of her employment. This decision was based upon a security supervisor's testimony that the claimant in a post-attack interview stated her attackers believed she was a nurse because she wore a white uniform. The court held her working environment created an increased risk of sexual assault because nurses were more prone to being assaulted than other females since they symbolized a strong maternal element. The wearing of a white uniform in an area of the hospital frequented by nurses resulted in a compensable claim since those conditions created an increased risk of sexual assault. Rush-Presbyterian St. Luke's Medical Ctr. v. Industrial Comm'n, 258 Ill. App. 3d 768, 630 N.E.2d 1175, 197 Ill. Dec. 51 (1st Dist. 1994)

SUBROGATION/LIEN CASES - Back to Table of Contents

Employer's Lien: Loss Of Consortium - Back to WC Index
An employer has no right to assert a lien upon any recovery a wife obtains in an independent structural work claim for loss of consortium since the employer's right to claim a workers' compensation lien is expressly limited to actions brought by the injured employee or his personal representative. The Court was concerned with the wife recovering damages for loss of the decedent's wages and also retaining the workers' compensation benefits. The Court required the plaintiff to join the loss of consortium action with a wrongful death claim so the employer would not pay twice. The employer could claim a lien in the wrongful death action and recoup any benefits it paid to the plaintiff's spouse for the employee's death. Schrock v. Shoemaker, 159 Ill. 2d 533, 640 N.E.2d 937, 203 Ill. Dec. 787 (1994)

Employer's Lien: 50% Allocation For Loss Of Consortium = Good Faith Settlement - Back to WC Index
Allocation of one-half of the total settlement to the wife is fair and reasonable. The court applied an appropriate standard focusing on its responsibility to protect the workers' compensation lien. This trial judge adequately examined the settlement and concluded the parties might well have reached the same allocation even if there had been no lien. Blagg v. F.W.D. Corp., ___ Ill. App. 3d ___, 637 N.E.2d 1233, 202 Ill.Dec. 497 (2d Dist. 1994)

Lien Reimbursement: Medical Management Services Included - Back to WC Index
Rehabilitation and management services can be included in the employer's liens so long as evidence establishes the services were for the benefit of the petitioner rather than for exclusive management or cost-containment efforts by the carrier. Cole v. Byrd, ___ Ill. App. 3d ___, 639 N.E.2d 254, 203 Ill. Dec. 215 (4th Dist. 1994)

Lien Waivers: Setoffs Against Judgments - Back to WC Index
A trial court's setoff of 100% of the amount of the waived workers' compensation lien was appropriate under section 5(b). Plaintiff was injured while rebuilding the Arlington Park racetrack. He and his wife filed suits against the defendant construction company alleging violations of the Structural Work Act. The defendant brought acontribution action against Corley's employer. Corley and the employer entered into a settlement agreement whereby the employer agreed to waive its $404,635 workers' compensation lien in exchange for release from liability. The jury awarded $2,909,535, and the circuit court allowed defendant's setoff of the full amount of the workers' compensation lien. The plaintiffs argued the lien should be reduced by the 25% attorneys' fee as set forth in section 5(b) and $4,150 as the employer's proportionate share of costs and expenses.

Since section 5(b) specifically refers to paying the employee's attorneys "out of any reimbursement" when an employer waives its right to reimbursement, it is not under any duty or obligation to contribute to the employee's cost of obtaining a recovery. Therefore, a waiver of a workers' compensation lien creates a setoff for the remaining defendant for the entire amount of the waived lien. Corley v. James McHugh Construction Co., ___ Ill. App. 3d ___, 639 N.E.2d 1374, 203 Ill. Dec. 555 (1st Dist. 1994)

OCCUPATIONAL DISEASE CASES - Back to Table of Contents

Disablement: PTD Award Upheld - Back to WC Index
The claimant established disablement due to breathing problems from inhaling coal and rock dust but failed to establish he left his employment for health reasons. Evidence which established breathing problems when the mine shut down in 1986 was not sufficient to show permanent and total disability. He was able to bid for other jobs. Since his seniority was low, he was concerned he would have to work as a laborer. He did not believe he could perform such work. Petitioner was laid off and collected unemployment for six months while looking for other work. Despite his pneumoconiosis, his pulmonary specialist determined he was capable of gainful employment. Mere identification of pneumoconiosis and his disablement due to a breathing problem was not sufficient for a PTD award. His lack of effort at returning to work and his layoff/voluntary retirement status defeated any claim he could have made for a PTD award. Meadows v. Industrial Comm'n, 262 Ill. App. 3d 650, 634 N.E.2d 1291, 199 Ill. Dec. 937 (5th Dist. 1994)

Disablement From Earning Wages - Back to WC Index
The claimant failed to establish disablement due to pneumoconiosis within two years of the date the claimant stopped working. An employee seeking compensation must show he contracted an occupational disease and was disabled from earning full wages at the work in which he was last exposed. The court defined disablement under section 1(e) as impairment in the function of the body or the event of becoming disabled from earning wages. In this case, the event which caused the claimant to stop working was a heart attack not the pneumoconiosis. Forsythe v. Industrial Comm'n, 263 Ill. App. 3d 463, 636 N.E.2d 56, 200 Ill. Dec. 865 (5th Dist. 1994)

Benefits Prior To Death Denied - Back to WC Index
The Commission's denial of benefits to a worker prior to his compensable death was proper. The treating pulmonary specialist did not rule out his ability to perform work during the period prior to his death. Kieffer and Company, Inc. v. Industrial Comm'n, 263 Ill. App. 3d 294, 636 N.E.2d 7, 200 Ill. Dec. 816 (2d Dist. 1994)

Increased Permanency Award Upheld - Back to WC Index
The court refused to reverse a Commission determination increasing a permanency award from the 5% to 30% of a man. Petitioner's breathing problems began in 1975 and became gradually worse to the point he could not walk more than 20 to 30 yards or climb a few steps without catching his breath. He was disabled from work as a coal miner due to his respiratory problems although he was not totally disabled from working in any capacity. Freeman United Coal Mining Co. v. Industrial Comm'n, 263 Ill. App. 3d 478, 636 N.E.2d 77, 200 Ill. Dec. 886 (5th Dist. 1994)

Blastomycosis: 8(d)(1) Upheld - Back to WC Index
A trial court's reversal of the Industrial Commission's 8(d)(1) award for benefits was improper where claimant's initial bout with blastomycosis placed him at a greater risk than the general public to contract subsequent fungal infections. A restriction to avoid exposure to airborne soil and to seek other employment supported an 8(d)(1) award despite the trial court's finding he could return to work without endangering health. Resolution of such evidentiary conflicts is manifestly the province of the Commission, not the circuit court. Consolidation Coal Co. v. Industrial Comm'n, ___ Ill. App. 3d ___, 639 N.E.2d 886, 203 Ill. Dec. 327 (5th Dist. 1994)

Permanency Award Upheld: 75 Year Old Retiree - Back to WC Index
Rejection of claimant's petition for permanent and total benefits was proper since claimant was 75 years of age at the time of the arbitration and had retired at age 65. He conducted no search for employment nor did he retire on the recommendation of a doctor. Shelton v. Industrial Comm'n, No. 5-93-0358WC, 1994 WL 476401 (5th Dist., Sept. 2, 1994)

PERMANENT/TOTAL CASES - Back to Table of Contents

Permanent Total Award Reversed: Too Much Education - Back to WC Index
A staff attorney's psychological injury resulting from an altercation with his supervisor was compensable. His mental disorder was the result of the trauma, but he failed to prove he was permanently and totally disabled. Although medical opinions established the claimant was unable to sustain gainful work activities, none found his condition permanent. He had made some strides in treatment and was able to function in a less threatening situation. The claimant's years of experience and education qualified him for a wide variety of jobs both legal and non-legal. A psychologically traumatized attorney will not easily be deemed permanently and totally disabled. Chicago Park District v. Industrial Comm'n, 263 Ill. App. 3d 835, 635 N.E.2d 770, 200 Ill. Dec. 431 (1st Dist. 1994)

Permanent Total Award: Insufficient Medical Evidence And Retirement - Back to WC Index
Two doctors found the claimant partially disabled due to mild, simple coal workers' pneumoconiosis and mild pulmonary emphysema caused by exposure to coal dust. They believed the claimant should not work around coal dust. An examining physician did not believe the claimant suffered from coal worker pneumoconiosis and did not believe he was impaired as the result of any respiratory problem. The court held none of the experts testified that simple coal workers' pneumoconiosis was disabling. No prima facie showing had been made by the claimant that he fit into the odd lot category. Evidence revealed the claimant retired on January 31, 1980, at the age of 64. He filed his application on January 22, 1985 and at the time of the hearing, was 72 years old. Since he retired, his breathing problems had not become worse. His medical history revealed a number of other lines of employment outside the mines, but the claimant had made no effort to seek employment. While there is no per se rule that a retired person is not entitled to permanent total disability benefits, the fact of retirement is significant. He was not totally physically disabled based upon the medical evidence, and he had failed to sustain his burden to recover under an odd lot theory. Old Ben Coal Co. v. Industrial Comm'n, 261 Ill. App. 3d 812, 634 N.E.2d 285, 199 Ill. Dec. 446 (5th Dist. 1994)

Permanent Total Award: Insufficient Medical Evidence - Back to WC Index
Where no physician determined the claimant was unable to perform any job, no permanent and total (PTD) award could be sustained. The claimant did present evidence of physical limitations and was 50 years old at the time of the hearing. He had a ninth grade education and had always worked as a laborer. His back injury prevented the claimant from performing his former job as a diesel mechanic. PTD awards require medical testimony that the claimant is totally disabled or unable to perform any task for which there is a well-known labor market. Eliciting testimony from medical providers that the claimant is unable to return to his former job is not proof of PTD under the Act. Peabody Coal Co. v. Industrial Comm'n, 259 Ill. App. 3d 356, 631 N.E.2d 422, 197 Ill. Dec. 419 (5th Dist. 1994)

Permanent Total Award Reversed: No Odd Lot - Back to WC Index
The trial court correctly reversed an award for permanent total disability (PTD). It was reduced to 25% of a man. No medical opinion established he was incapable of performing any type of work although his return to his occupation as a driver was unlikely. The claimant also failed to attend job interviews arranged by the rehab manager for a position as a cab dispatcher. His failure to make any attempt to find work was significant. This evidence supported the court's finding that while he could not return to truck driving, he was capable of being regularly employed in a well-known branch of the labor market. Claimants who do not try to return to work, fail to look for work or focus on retirement will be scrutinized carefully when they pursue PTD benefits. Schoon v. Industrial Comm'n, 259 Ill. App. 3d 587, 630 N.E.2d 1341, 197 Ill. Dec. 217 (3d Dist. 1994)

CAUSAL CONNECTION CASES - Back to Table of Contents

Causal Connection By Implication - Back to WC Index
There is no requirement the Industrial Commission specifically address causal connection in its decisions. The petitioner stepped off a soil pipe and strained his left foot. He had four surgical procedures and was awarded 100% of the left foot. While the Commission did not specifically address the causation issue, a relationship existed because of claimant's testimony, the scenario offered by the treating physicians and the chain of surgical procedures performed. A finding of causal connection can be implicit. Illinois Bell Telephone Co. v. Industrial Comm'n, ___ Ill. App. 3d ___, 638 N.E.2d 307, 202 Ill. Dec. 661 (1st Dist. 1994)

Quality Of Causation Opinion Crucial - Back to WC Index
Petitioner met his burden of proving he had a stroke which was caused at least in part by work-related physical stress where the medical testimony against causation was vacillating, contradictory, and weak. Three physicians who testified regarding no causal relationship qualified their opinions by not ruling out lifting as a cause for the condition. Where medical testimony conflicts on causation and medial opinions challenging causation allow for the work episode to be a contributing factor, a finding in favor of causation is likely.

Opinions from physicians challenging causal relationship should be well-grounded in medicine and science and articulated firmly ruling out the work event as a possible contributing cause. Boyd Brothers, Inc. v. Industrial Comm'n, 263 Ill. App. 3d 514, 636 N.E.2d 46, 200 Ill. Dec. 855 (5th Dist. 1994)

EXCLUSIVE REMEDY CASES - Back to Table of Contents

Battery: Specific Intent To Injure - Back to WC Index
The exclusivity provisions of the Illinois Workers' Compensation Act barred plaintiff's complaint based on a battery where the complaint failed to allege defendants were specifically aware of the dangers of various chemicals to which the plaintiff was exposed or that they intentionally misrepresented these dangers to the plaintiff. In the absence of such allegations, there was no support for the conclusion defendants specifically intended to injure plaintiff. The complaint did not allege the defendants were aware of the specific risks faced by plaintiff or that they fraudulently misrepresented the risks involved. Plaintiff alleged he was injured as a result of risks inherent in his employment. This is precisely what the Workers' Compensation Act was meant to cover. Glowacki v. Moldtronics, Inc., 264 Ill. App. 3d 19, 636 N.E.2d 1138, 201 Ill. Dec. 706 (2d Dist. 1994)

Dual Capacity Doctrine - Back to WC Index
The dual capacity doctrine did not apply where the plaintiff could not establish a second capacity of the employer which generated obligations unrelated to those flowing from the first, that of employer. This test was extended to apply to co-employees and agents of the employer. The defendant's duty as plaintiff's boss was to furnish him with a safe place to work. This is related to the common-law duty of a landowner to a provide safe premises. Plaintiff's claim against the defendant was barred. Reynolds v. Clarkson, 263 Ill. App. 3d 432, 636 N.E.2d 91, 200 Ill. Dec. 900 (4th Dist. 1994)

Timing: Must Be Raised As Affirmative Defense At Trial - Back to WC Index
Defendant's argument on appeal that plaintiff's claim was barred by the exclusivity provisions of the Workers' Compensation Act came too late. The exclusivity provision is an affirmative defense which is waived if not asserted by the employer at trial. The employer is free to interpose this affirmative defense or not. Geise v. The Phoenix Company of Chicago, Inc., 159 Ill. 2d 507, 639 N.E.2d 1273, 203 Ill. Dec. 454 (1994)

Specific Intent Not Substantial Certainty Is Proper Test - Back to WC Index
The exclusivity provisions of the Workers' Compensation Act barred a suit against a pizza delivery company brought by relatives of a delivery person killed by assailants during a delivery. The relatives of the decedent alleged the business knew with substantial certainty that delivery men would be attacked. They alleged decedent's death was not accidental. The court affirmed the trial judge's dismissal holding the "not accidental" exception to the exclusive remedy rule required the employer to specifically intend its actions to injure the employee. Bercaw v. Domino's Pizza, Inc., 258 Ill. App. 3d 211, 630 N.E.2d 166, 196 Ill. Dec. 469 (2d Dist. 1994)

JURISDICTION CASES - Back to Table of Contents

Commission Jurisdiction: Untimely Appeal - Back to WC Index
The Industrial Commission retained jurisdiction despite respondent's attorney's untimely filing of its statement of exceptions. Different carriers and attorneys were retained for the separate accident dates which were consolidated for trial. The arbitrator failed to send decisions to one of the attorneys. Plaintiff's counsel objected to the Commission's jurisdiction to review the arbitrator's decision since the review was filed outside the 30-day period. Counsel was allowed to proceed with the review. Where counsel of record fails to receive notice of a decision, the Commission retains the jurisdiction to entertain a late filing of a petition for review. Upchurch v. Industrial Comm'n, 261 Ill. App. 3d 104, 634 N.E.2d 434, 199 Ill. Dec. 595 (5th Dist. 1994)

Principally Localized: Situs Of Employment Test Applied - Back to WC Index
Decedent's employment was principally localized in Illinois since he received his dispatch orders and pay from Illinois, turned in his paperwork and washed his trailer in Illinois. Under section 1(b)(2) of the Act there are three bases for acquiring Illinois jurisdiction: (1) contract for hire is made in Illinois; (2) accident occurred in Illinois, and (3) claimant's employment is principally localized in Illinois. Factors used to determine situs of employment relationship are as follows: (1) center from which employee works; (2) source of pay; (3) place employment contract was formed; (4) the existence of a facility from which the employee receives assignments and is controlled and to which employee will return after out-of-state assignments are complete; and (5) quantity of time employee spends in a particular locale. Montgomery Tank Lines v. Industrial Comm'n, 263 Ill. App. 3d
218, 640 N.E.2d 296, 203 Ill. Dec. 637 (1st Dist. 1994)

Employment Agreement: Last Act Necessary - Back to WC Index
An employment agreement signed in Nevada was the last act necessary to validate an employment contract. The application for employment stated the petitioner would not become an employee until he signed the employment agreement. Therefore, Nevada not Illinois had jurisdiction. Ford Aerospace and Communication Service, Inc. v. Industrial Comm'n, 262 Ill. App. 3d 1115, 635 N.E.2d 872, 200 Ill. Dec. 533 (1st Dist. 1994)

CONTRIBUTION CASES - Back to Table of Contents

Kotecki: Wave Bye-Bye To The Defense - Back to WC Index
The Kotecki defense is not automatic. It is an affirmative defense the employer must raise and prove. This employer had contractually waived the defense and was liable for unlimited contribution. Paragraph 8(c) of its contract required the employer to assume the "entire liability" for its own negligence and liability for any violations of the Structural Work Act. The employer agreed to indemnify and save the defendant harmless from any damages it was required to pay because of the employee's negligence. This contract was an agreement to make contribution. Contracts between employers and other contractors can waive Kotecki's protection and expose employers to unlimited contribution. Herington v. J.S. Alberici Construction Co., Inc., ___ Ill. App. 3d ___, 639 N.E.2d 907, 203 Ill. Dec. 348 (5th Dist. 1994)

Kotecki: Retroactivity - Back to WC Index
Kotecki applies retroactively to all actions which were pending at the time that the decision was announced. This includes actions pending on direct review in the appellate court. Moore v. Centreville Township Hosp., 158 Ill. 2d 543, 634 N.E.2d 1102, 199 Ill. Dec. 748 (1994)

Kotecki: Retroactivity - Back to WC Index
The Kotecki rule limiting an employer's contribution liability applies retroactively to all cases pending at the time of the decision and applies to claims alleging wilful and wanton misconduct by the employer. Lannom v. Kosco, 158 Ill. 2d 535, 634 N.E.2d 1097, 199 Ill. Dec. 743 (1994)

Kotecki: Application To Structural Work Act - Back to WC Index
The Kotecki cap applies where the underlying action, whether on behalf of the employer or an independent action for the surviving spouse, is based upon the Structural Work Act. Kotecki is not limited to a particular form of action. Gavrick v. Creative Construction, Ltd., 260 Ill. App. 3d 488, 636 N.E.2d 774, 201 Ill. Dec. 342 (1st Dist. 1994), appeal allowed, No. 77219 (Ill. Oct. 6, 1994)

Good Faith Settlement: Loan Receipt Agreement Invalid - Back to WC Index
Loan receipt agreements frustrate the purpose and goal of the Contribution Act which is to encourage settlements of claims. The public policy favoring settlements of claims recognizes a tortfeasor should be able to "buy its peace" with the injured plaintiff, pay its money and be done with the litigation.

Since plaintiff must repay the amount of the loan to the settling tortfeasor, the remaining tortfeasors necessarily bear a larger share of the plaintiff's damages than might be warranted by an analysis of comparative fault. Consequently, the remaining tortfeasors are less likely to settle since they have little to lose by taking the matter to trial. Such loan agreements undermine rather than promote the private settlement of disputes. As a result, such agreements are not considered "good faith" settlements within the meaning of the Act. This ruling applies only to this case and to all settlement agreements executed after the date of the filing of the opinion (9/29/94). In Re Guardianship of Clifford A. Babb v. City of Champaign, Docket Nos. 74352, 74382 and 74383, 1994 WL 528072 (Ill., Sept. 29, 1994)

Assignment Of Lien - Back to WC Index
Section 21 of the Workers' Compensation Act does not prohibit an employer from assigning its lien. It only refers to whether a "payment, claim, award or decision" is assignable. An employer's lien is not a payment, claim, award or decision as used in this section. Gonzalez v. Evanston Fuel & Material Co., ___ Ill. App. 3d ___, 637 N.E.2d 691, 202 Ill. Dec. 152 (1st Dist. 1994)

EMPLOYER/EMPLOYEE RELATIONS CASES - Back to Table of Contents

Independent Contractor Status Established - Back to WC Index
Petitioner was an independent contractor despite being paid an hourly wage for carpentry, mowing, fencing, plumbing and electrical work done without supervision on farm property owned by an attorney. Respondent was only interested in having certain tasks and projects completed. The method and manner in which those tasks were done was left entirely to the discretion of the claimant. The respondent did not supervise the claimant, who was free to begin and end work as he wished. While certain factors were indicative of an employer/employee relationship, the circumstances as a whole confirmed the claimant's status as an independent contractor. Davis v. Industrial Comm'n, 261 Ill. App. 3d 849, 634 N.E.2d 1117, 199 Ill. Dec. 763 (4th Dist. 1994)

MISCELLANEOUS CASES

19(g): Limited To Decisions Providing For Payment Of Compensation - Back to Table of Contents - Back to WC Index

Section 19(g) does not provide a right to a judgment to recover TTD benefits paid to an unentitled employee. Only awards or decisions providing for payment of compensation may be reduced to judgment under this provision. The Court is not going to allow TTD credits to be pursued under section 19(g), despite an award which says the employer "shall have credit for all amounts paid, if any." This was not an adjudication of liabilities. This statement was inadvertent and not intended to constitute a decision under the Act. Section 19(g) is limited to Commission decisions providing for payment of compensation. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282, 203 Ill. Dec. 463 (1994)

Medical Records - Back to Table of Contents - Back to WC Index
Insurers act as representatives or agents of employers and because of this relationship, a workers' compensation insurer should be furnished medical reports pursuant to section 8(a). Petitioner argued section 8(a) did not allow insurance companies directly request medical records of employees with work-related injuries. Mercer v. Carle Foundation Hosp., 261 Ill. App. 3d 245, 633 N.E.2d 192, 198 Ill. Dec. 730 (4th Dist. 1994)

Physician Lien Recovery - Back to Table of Contents - Back to WC Index
A physician may pursue an action directly against an injured worker for amounts unpaid by the employer under the Workers' Compensation Act. Defendant's argument that the Physicians Lien Act abrogated this right was rejected. Piller v. Weippert, 260 Ill. App. 3d 677, 633 N.E.3d 174, 198 Ill. Dec. 712 (2d Dist. 1994)

Appellate Jurisdiction - Back to Table of Contents - Back to WC Index
Claimant's failure to include either a receipt showing proof of payment of the probable costs of the record or an affidavit setting forth that such payment had been made deprived the circuit court of subject matter jurisdiction. Strict compliance with section 19(f)(1) is required. Bess v. Industrial Comm'n, 264 Ill. App. 3d 225, 636 N.E.2d 1021, 201 Ill. Dec. 589 (5th Dist. 1994)

Appeal Bond Dischargeable - Back to Table of Contents - Back to WC Index
When an employer files an appeal bond under section 19(f)(2) to appeal from an award which calls for periodic payments and the award is confirmed on appeal, the bond is dischargeable upon final adjudication of the rights of the parties if the employer pays the amount due on the award. The bond was only intended to protect the claimant during the pendency of the appeal and was not intended to insure payment of the award. Moorhead Machinery/Westinghouse v. Industrial Comm'n, 263 Ill. App. 3d 936, 636 N.E.2d 965, 201 Ill. Dec. 533 (4th Dist. 1994)

19(g): Appropriate Method To Pursue Payment Of An 8(d)(1) Award - Back to Table of Contents - Back to WC Index
Where the employer failed to tender an amount sufficient to satisfy the 8(d)(1) award, pursuit of payment under section 19(g) was appropriate. The court allowed the action against the employer but would not permit a direct action against the carrier. McAnally v. Butzinger Builders, 263 Ill. App. 3d 504, 636 N.E.2d 19, 200 Ill. Dec. 828 (5th Dist. 1994)

Statute Of Limitations - Back to Table of Contents - Back to WC Index
An employer will not be estopped from asserting a statute of limitations bar to a workers' compensation claim where the claims representative informed the petitioner of the date his claim would be barred by the statute of limitations. Galiher v. Industrial Comm'n, 263 Ill. App. 3d 471, 636 N.E.2d 52, 200 Ill. Dec. 861 (5th Dist. 1994)

8(d)(1) Award - Back to Table of Contents - Back to WC Index
Wage differential awards are to be based upon "full performance" of petitioner's job. Claimant's average of 1,073.4 hours per year constituted full performance of his particular occupation. Forest City Erectors v. Industrial Comm'n, 264 Ill. App. 3d 436, 636 N.E.2d 969, 201 Ill. Dec. 537 (1st Dist.1994)

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