AVERAGE WEEKLY WAGE - Back to Table of Contents

Wage Calculation: What Is A Work Week? - Back to WC Index
There is no presumption that a work week for every employee in the labor force is 40 hours. When employment is non-continuous or less than "full-time," earnings may be divided by an entire work week even if the employee worked only a portion of the week. Ricketts v. Industrial Comm'n, 251 Ill. App. 3d 809, 623 N.E.2d 847, 191 Ill. Dec. 257 (4th Dist. 1993)

Wage Calculation: Free Meals Not Included - Back to WC Index
The value of free meals are excluded from the computation of average wage. Meals consumed at a restaurant while working were not viewed "as consideration for work" but more closely resembled a "bonus." Levkovitz v. Industrial Comm'n, ___ Ill. App. 3d ___, 628 N.E.2d 824, 195 Ill. Dec. 360 (1st Dist. 1993)

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

Store Premises Shooting - Back to WC Index
A stock clerk's head injuries from a gunshot while working late to unload a delivery did not arise out of and in the course of employment where there was no evidence the store itself was in a risky environment or that the attack was motivated by something related to the claimant's employment. Heath v. Jewel Cos. and Industrial Comm'n, ___ Ill. App. 3d ___, 628 N.E.2d 335, 194 Ill. Dec. 838 (1st Dist. 1993)

Parking Lot Configuration: Creates Hazard - Back to WC Index
Claimant's injuries sustained in a vehicular accident with a semi-trailer in the employer's parking lot arose out of her employment
because the configuration of the lot required semi- trucks to cross employee traffic to reach designated areas. This created a hazard to which the general public was not exposed. Hammel v. Industrial Comm'n, 253 Ill. App. 3d 900, 626 N.E.2d 234, 193 Ill. Dec. 201 (3d Dist. 1994)

Secondhand Smoke: Work-Related - Back to WC Index
Claimant's injuries from secondhand smoke emitted in respondent's facility arose out of an in the course of her employment, because the employer failed to control the smoking habits of its employees. Pechan v. Dynapro, Inc., 251 Ill. App. 3d 1072, 622 N.E.2d 108, 190 Ill. Dec. 698 (2d Dist. 1993)

SUBROGATION/LIEN CASES - Back to Table of Contents

Release of Contribution Liability - Back to WC Index
Settlement of a workers' compensation case does not close out an employer's contribution liability without appropriate release documents evidencing the party's intent to settle the contribution action. Any settlement of both a workers' compensation and common law claims for contribution should include a common law release and a good faith finding from the trial court. Kemp v. Bridge-stone/Firestone, 253 Ill. App. 3d 858, 625 N.E.2d 905, 192 Ill. Dec. 750 (4th Dist. 1993)

Spouse's Allocation - Back to WC Index
An employer's lien rights under section 5(b) include a requirement that the court scrutinize a settlement agreement and exclude amounts for the employee's lost time and medical expenses from the spouse's allocation under a consortium claim. Mitchell v. Atwood Enterprises, Inc., 253 Ill. App. 3d 475, 624 N.E.2d 878, 191 Ill. Dec. 690 (2d Dist. 1993)

OCCUPATIONAL DISEASE CASES - Back to Table of Contents

Proof of Disablement - Back to WC Index
A coal miner's occupational disease was compensable since he established the disability commenced within two years of the last exposure. Claimant's unrebutted testimony that he had breathing problems since 1976, and the doctor's diagnosis of pneumoconiosis constituted evidence the claimant was disabled within two years of his last employment. Hicks v. Industrial Comm'n, 251 Ill. App. 3d 320, 621 N.E.2d 293, 190 Ill. Dec. 424 (5th Dist. 1993)

Claimant failed to establish his respiratory problems were the result of his years of employment and exposure to hydrocarbons in the workplace where respondent's pulmonary expert found claimant's condition was the result of a long history of smoking and drinking. Sharkey v. Industrial Comm'n, No. 3-93-361 (3d Dist., January 18, 1994)

PERMANENT/TOTAL CASES - Back to Table of Contents

Odd Lot: Established - Back to WC Index
While the claimant's knee injury was not completely disabling, a permanent and total award can be sustained when claimant's limited functional and mental capacity fall within the odd lot category. The claimant was 52 years old, had a third grade education, an IQ of 73, and did not qualify for 66 known job titles and his former work was at best unskilled manual labor. City of Green Rock v. Industrial Comm'n, 255 Ill. App. 3d 895, 625 N.E.2d 1110, 192 Ill. Dec. 955 (3d Dist. 1993)

The evidence established the permanent total disability of a roofer where multiple physical injuries restricted his ability to sit for more than 45 minutes or stand without the use of a cane for more than 10 minutes. The claimant met his burden in proving odd lot where the evidence established no reasonably stable labor market for a person in his condition. Respondent did not prove such work existed on a regular and continuous basis. Contour Designs, Inc. v. Industrial Comm'n, ___ Ill. App. 3d ___, 627 N.E.2d 717, 194 Ill. Dec. 380 (5th Dist. 1994)

Odd Lot: Not Established - Back to WC Index
Claimant's application for permanent and total benefits was denied where he failed to establish pneumoconiosis was medically totally disabling, and he failed to prove odd lot status. No evidence was presented by the claimant to show a diligent job search or that he was not capable of work outside the mining industry. He retired in 1980, and filed his claim in 1985. While retirement is not a bar to an 8(f) award, it is a factor to be considered. This claimant did not fit into the odd lot category. Old Ben Coal Co. v. Industrial Comm'n, No 5-93-0275WC, 1994 WL 38868 (5th Dist., Feb. 10, 1994)

CAUSAL CONNECTION CASES - Back to Table of Contents

Time Gap Defense - Back to WC Index
A time lapse between an October 13, 1981 accident and a left knee surgery of June 14, 1984 supported a finding that a left leg condition was not the result of the October 13, 1981 accident. The claimant had returned to work the next day and worked for two years and eight months without any treatment. Such a time span with no treatment is too long to support a claim of causal connection. Boatman v. Industrial Comm'n, ___ Ill. App. 3d ___, 628 N.E.2d 829, 195 Ill. Dec. 365 (1st Dist. 1993)

Prior Settlement: No Bar to New Accident - Back to WC Index
A prior settlement of 50% of a man ($90,000) did not bar the claimant from having a compensable injury upon his return to work. Claimant settled his 1987 workers' compensation claim after an award of permanent and total disability for $90,000. He subsequently returned to work for the respondent and reported a new accident. General Refractories v. Industrial Comm'n, ___ Ill. App. 3d ___, 627 N.E.2d 1270, 194 Ill. Dec. 628 (3d Dist. 1994)

PENALTY CASES - Back to Table of Contents

TTD Termination: Employer's Burden - Back to WC Index
An employer failed to carry its burden of proving the reasonableness of its conduct in terminating compensation, where the basis for termination of benefits was a doctor's report which was not submitted. The employer made no effort to address claimant's on-going treatment or endeavor to counter the opinions of several other doctors who indicated the claimant was totally disabled. Miller v. Industrial Comm'n, ___ Ill. App. 3d ___, 627 N.E.2d 676, 194 Ill. Dec. 339 (3d Dist. 1993)

TTD Advance: Penalties For Failure To Pay - Back to WC Index
Employers who promise to advance money against future awards will be penalized if they refuse to pay as promised. An employer was assessed penalties for failure to pay, because the claimant had agreed to withdraw a 19(b) petition in reliance upon the employer's promise to advance six months of temporary total disability benefits. The employer's conduct was deemed intentional and frivolous. The statute makes no distinction as to liability to pay compensation imposed by an award or by a contract between the parties. Little Company of Mary Hosp. v. Industrial Comm'n, ___ Ill. App. 3d ___, 628 N.E.2d 537, 195 Ill. Dec. 73 (1st Dist. 1993)

Amputations: Pay Immediately - Back to WC Index
An award of penalties is proper where claimant suffered amputation of three fingers, and the employer failed to establish the delay in payment was reasonable. Claimants who receive amputations should be immediately compensated when no dispute exists. Lester v. Industrial Comm'n, ___ Ill. App. 3d ___, 628 N.E.2d 191, 194 Ill. Dec. 694 (1st Dist. 1993)

HEART ATTACK CASES - Back to Table of Contents

Work Stress - Back to WC Index
The appellate court sustained a claim regarding stressful work conditions where the decedent was deeply involved in a stressful attempt to bring a problem-ridden, long-delayed project to completion. The court determined there was evidence of extraordinary pressure on the decedent to finish the installation and that this stress had an effect on him. Ingersoll Milling Machine v. Industrial Comm'n, 253 Ill. App. 3d 462, 624 N.E.2d 829, 191 Ill. Dec. 641 (2d Dist. 1993)

PPD AWARD CASES - Back to Table of Contents

Dependency - Back to WC Index
Where the Industrial Commission's award was made after claimant's death, remand was appropriate to determine to whom the award should be paid where no evidence was presented at the hearing concerning the issue of dependency. Peabody Coal Co. v. Industrial Comm'n, ___ Ill. App. 3d ___, 627 N.E.2d 720, 194 Ill. Dec. 383 (5th Dist. 1994)

Voluntary 8(d)2: No Bar to PPD Award - Back to WC Index
Separate awards under sections 8(e) and 8(d)2 are appropriate where claimant has sustained multiple injuries arising from the same accident. An employer's voluntary payment of a wage differential is not inconsistent with awards under 8(d)2 and 8(e). The Commission had not awarded benefits under 8(d)1. The employer began making differential payments on its own initiative. Voluntary payment of a wage differential will not bar awards under 8(d)2 or 8(e). Jewel Food Cos., Inc. v. Industrial Comm'n, No. 1-92-3593WC, 1993 WL 513383 (1st Dist., Dec. 10, 1993)

EXCLUSIVE REMEDY CASES - Back to Table of Contents

Breach of Contract - Back to WC Index
A common law action alleging a wilful breach of a contractual agreement was not barred by the exclusivity provisions of the Illinois Workers' Compensation Act (820 ILCS 305/5(a)). Fredericks v. Liberty Mutual Ins. Co., ___ Ill. App. 3d ___, 627 N.E.2d 782, 194 Ill. Dec. 445 (5th Dist.
1994)

Separate Legal Persona - Back to WC Index
Where plaintiff's allegations were directed against only a single legal entity, Acme as plaintiff's employer, the complaint was barred as a matter of law by the exclusivity provisions of the Workers' Compensation Act. Plaintiff must allege and establish a distinct separate legal persona and a second capacity of the employer which generates obligations unrelated to those flowing from its status as an employer. Mayfield v. Acme Barrel Co., ___ Ill. App. 3d ___, 629 N.E.2d 690, 196 Ill. Dec. 145 (1st Dist. 1994)

Sex Harassment/Battery - Back to WC Index
A common law action alleging the employer committed a battery against an employee was not barred by the exclusivity provisions of the Act. Sutton v. Overcash, 251 Ill. App. 3d 737, 623 N.E.2d 820, 191 Ill. Dec. 230 (3d Dist. 1993)

MISCELLANEOUS CASES

Credits - Back to Table of Contents - Back to WC Index
The court reaffirmed its holdings in Killian v. Industrial Comm'n, 148 Ill. App. 3d 975, 500 N.E.2d 450, 102 Ill. Dec. 557 (1st Dist. 1986) and Consolidated Freightways v. Industrial Comm'n, 237 Ill. App. 3d 549, 604 N.E.2d 962, 178 Ill. Dec. 439 (3d Dist. 1992) by reversing the Commission's credit and subtraction of a 17% award for a prior injury against a current 20% award of permanency. Doyle v. Industrial Comm'n, No. 3-93-0066Wc (3d Dist., Dec. 15, 1993)

Evidence: Hearsay Objection - Back to Table of Contents - Back to WC Index
The Industrial Commission erred in admitting a Commission-ordered IME report and improperly relied upon it in determining its award where the claimant had not waived hearsay objections to the report. Newbern v. Industrial Comm'n, ___ Ill. App. 3d ___, 628 N.E.2d 532, 195 Ill. Dec. 68 (1st Dist. 1993)

Employer 19(h): No Material Decrease in Disability - Back to Table of Contents - Back to WC Index
An employer failed to establish a material decrease in claimant's disability despite claimant's improvement in corrected visual acuity (20/400 to 20/25) since the claimant continued to have pinhole vision problems. Given this continuing problem, the improvement of vision acuity in a limited field of vision did not constitute a material decrease in claimant's disability. Brooks v. Industrial Comm'n, No. 3-92-0557WC, 1993 WL 513946 (3d Dist., Dec. 13, 1993)

No Permanency: 19(b) Hearing Award - Back to Table of Contents - Back to WC Index
An arbitrator should not have decided permanency in a 19(b) hearing absent a clear statement in the record that the parties intended to try the issue of permanency. Jording v. Industrial Comm'n, 254 Ill. App. 3d 318, 624 N.E.2d 423, 191 Ill. Dec. 574 (3d Dist. 1993)

Notice - Back to Table of Contents - Back to WC Index
Notice requirements were satisfied where a co-worker observed the claimant approach the foreman in the break area after the unwitnessed accident. Claimant's testimony that he told the foreman, and the co-workers' observation of the conversation was sufficient proof of notice where respondent's only rebuttal evidence was a foreman's failure to recall the conversation. Gano Electric Contracting v. Industrial Comm'n, No. 4-93-0360WC, 1994 WL 49753 (4th Dist., Feb. 17, 1994)

Attorneys' Fees - Back to Table of Contents - Back to WC Index
The Commission has authority to enter an order allowing fees to be dispersed from claimant's compensation benefits. Section 16a provides that all attorneys' fees for representation shall be recoverable from compensation actually paid to such employees. Murphy v. Industrial Comm'n, No. 1-93-0544WC, 1994 WL 52566 (1st Dist., Feb. 18, 1994)

Hearing Loss - Back to Table of Contents - Back to WC Index
The court's decision in Young v. Industrial Comm'n, 248 Ill. App. 3d 876, 619 N.E.2d 773, 189 Ill. Dec. 72 (3d Dist. 1993), applies retroactively and excludes compensation for a hearing loss before 1975. John Deere Harvester Works v. Industrial Comm'n, ___ Ill. App. 3d ___, 629 N.E.2d 834, 196 Ill. Dec. 289 (3d Dist. 1994)

Appeal: Interlocutory - Back to Table of Contents - Back to WC Index
An award of vocational rehabilitation in addition to TTD benefits made the decision interlocutory and not subject to appeal. American Insulated Structures v. Industrial Comm'n, ___ Ill. App. 3d ___, 627 N.E.2d 1292, 194 Ill. Dec. 650 (4th Dist. 1994)

Appeal: Compliance With Supreme Court Rule 303 - Back to Table of Contents - Back to WC Index
Lack of actual notice of trial court's decision did not excuse failure to comply with Supreme Court Rule 303. Without compliance, the court lacked jurisdiction to entertain a section 2- 1401 petition. Mitchell v. Fiat-Allis, Inc., Docket No. 74463, 1994 WL 28668 (Feb. 3, 1994

Evidence: Collateral Estoppel - Back to Table of Contents - Back to WC Index
An employer is estopped from submitting evidence of a post-injury auto accident at a second 19(b-1) hearing where the respondent had a full opportunity at the first hearing to address the issue of the post-injury accident and causation. Lo Russo v. Industrial Comm'n and North Shore Cement, Inc. v. Industrial Comm'n, ___ Ill. App. 3d ___, 629 N.E.2d 753, 196 Ill. Dec. 208 (1st Dist. 1994)

Jurisdiction: Coverage Issues - Back to Table of Contents - Back to WC Index
Coverage disputes between an employer and its workers' compensation carrier regarding who is liable for payment of benefits is within the Commission's authority and jurisdiction. Textile Maintenance v. Industrial Comm'n, No. 2-93-0524WC, 1994 WL 91778 (2d Dist., Mar. 23, 1994) and Employers Mutual v. Skilling, ___ Ill. App. 3d ___, 629 N.E.2d 1145, 196 Ill. Dec. 301 (2d Dist. 1994)

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