AVERAGE WEEKLY WAGE - Back to Table of Contents

Fringe Benefits Not Included In Average Wage Calculation - Back to WC Index
The plain ordinary meaning of section 10 of the Act provides that the average wage shall reflect the payment of wages for labor or services during the 52 weeks preceding the injury. Calculation of claimant's average wage exclusive of fringe benefits was correct. Wage was defined as payment of money for labor or services. It is what a worker lives on and not miscellaneous values that may or may not some day have a value to him depending upon a number of uncontrollable events. Therefore, the Commission's decision to exclude fringe benefits from the calculation of average wage was correct. Pluto v. Industrial Comm'n, 272 Ill. App. 3d 722, 650 N.E.2d 631, 208 Ill. Dec. 937 (1st Dist. 1995)

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

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 work-related injury were not compensable. 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, No. 77402, 1995 WL 561707 (1st Dist., Sept. 21, 1995)

Dog At Work For Protection: Compensable - Back to WC Index
Petitioner's injuries which resulted from an arrest for disorderly conduct were held to be compensable. The court found that the petitioner was entitled to compensation despite resisting arrest.

The petitioner was a painter who took his labrador retriever to the work site for protection while performing job assignments in the Chicago Transit Authority subway stations between the hours of 9:00 p.m. and 5:00 a.m. He and his crew had previously been attacked and robbed while working in the subway system. The claimant regularly brought his labrador retriever to the work site without any objection from the employer. The petitioner had never encountered any objection to the dog's presence in the CTA system until December 2, 1991. Two black men dressed like bums approached him and asked him to get the dog out of the subway station. They pulled out a badge and identified themselves as officers. They used profanity and told him he should remove the dog or he would go to jail. The petitioner put the dog in a nearby janitor's closet and turned around to get the names of the men. They began to arrest him. The claimant resisted and was injured in the process.

The court held the claimant was entitled to compensation. Violation of law in performing one's duties does not automatically remove an employee from the course of his employment. The court's ruling is significant in that it set aside a Commission decision on a factual question. Kochilas v. Industrial Comm'n, ___ Ill. App. 3d ___, 654 N.E.2d 568, 211 Ill. Dec. 106 (1st Dist. 1995)

Parking Lot Injury: Compensable - Back to WC Index
The petitioner was a Chicago police officer who sued the City of Chicago for negligence regarding injuries suffered when part of a city bridge fell on him. He parked his car in the police parking lot and a chunk of concrete fell from the bridge and struck him fracturing his arm. The city argued the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 1081, par. 1-101 et seq., now 40 ILCS 5/1-101 et seq.) barred the common law action. The court found that the Workers' Compensation Act was the guide for interpretation of the Pension Code concerning the issue of whether the officer's injuries arose out of and in the course of his employment. Since the public did not need to pass under the bridge as regularly as police officers, its use exposed employees to an increased risk. Petitioner's injuries did arise out of his employment and his exclusive remedy was under the Pension Code. The common law action was barred. Fligelman v. City of Chicago, No. 1-94-2801, 1995 WL 602877 (1st Dist., Oct. 13, 1995)

Intoxication Cases - Back to WC Index
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.

The Illinois Supreme Court affirmed the judgment of the Appellate Court, First District in Parro v. Industrial Comm'n, 260 Ill. App. 3d 551 cited in our Fall, 1993 review of decisions. The Commission was not required to accept claimant's assertion she drank no more than two sips of beer preceding the accident. The blood alcohol evidence established the claimant's level stood at .288 sometime after the accident and may have been as high as .408 at the time of the fall. The Commission's conclusion that intoxication was the sole cause of the accident was supported in the record and should not be overturned. Parro v. Industrial Comm'n, S. Ct. Docket No. 78332, 1995 WL 616718 (Oct. 19, 1995)

SUBROGATION/LIEN CASES - Back to Table of Contents

Lien Reimbursement: Medical Management Services Excluded - Back to WC Index
The Illinois Supreme Court reversed its decision in Cole, holding an employer's compensation insurer is not entitled to reimbursement for payments made to a rehabilitation management firm. This case was cited in our Fall, 1994 review of decisions.

The Illinois Supreme Court held that Nurse Peck provided rehabilitation management and consultation services for the insurer. Expenses related to managing and supervising medical treatment and care provided by others will not be a part of the employer's lien. Insurer's expenses are not considered compensation paid to the plaintiff. Such costs will not be included in lien reimbursement unless it constitutes medical services or treatment which directly benefit the employee. Cole v. Byrd, S. Ct. Docket No. 78062, 1995 WL 561692 (Sept. 21, 1995)

Statutory Employer's Right To Reimbursement - Back to WC Index
A statutory employer's insurer has a right to reimbursement under section 5(b), since the insurer is seeking reimbursement from the plaintiff rather than the statutory employer who is its insured. The trial court erred in holding the insurer could not seek reimbursement from the proceeds of the settlement and by failing to protect the insurer's lien and allowing plaintiff's suit to be dismissed without consent. Duggan v. Builders Associates, Inc., 271 Ill. App. 3d 744, 648 N.E.2d 1063, 208 Ill. Dec. 141 (1st Dist. 1995)

Lien Reduction: Consent Needed - Back to WC Index
An insurer's workers' compensation lien cannot be unilaterally reduced without consent and agreement of the employer and the carrier. Plaintiff's attorney presented a motion to adjudicate the insurer's lien and represented to the court that it had the discretion and authority to adjudicate the lien to zero. The court held that the attorney should not have made such representations to the court. It found no reasonable attorney should have represented to the court that it could have adjudicated the lien to zero or otherwise compromise the lien to one-third of the plaintiff's settlement without consent from the lienholder. The court affirmed the adjudication of the insurer's lien to the statutory amount pursuant to section 5(b) of the Act and remanded the case for further hearing on fees and sanctions pursuant to Supreme Court Rule 137. Fremarek v. Hancock, 272 Ill. App. 3d 1067, 651 N.E.2d 601, 209 Ill. Dec. 423 (1st Dist. 1995)

Lien Recovery For Out-of-State Payments: None For Connecticut Payments - Back to WC Index
Plaintiff filed a wrongful death and survival action in Illinois resulting from a plane crash that killed her husband. Hartford Insurance Company intervened to enforce its lien. The plaintiff settled her suit with the defendants for $375,000. The plaintiff had also applied for workers' compensation under a Connecticut statute and, as of the date of the settlement, had received over $200,000 in benefits with payments continuing. Plaintiff filed a motion for summary judgement asserting that under Connecticut law, the workers' compensation insurance carrier had no right to a lien on an employee's recovery from a third party for a product liability claim. The court determined, through a conflict of laws analysis, that Connecticut law applied rather than Illinois law, and as a result, the insurer had no valid lien claim at the time of decedent's injury. Connecticut law allowed for double recovery in product liability cases as a matter of public policy. Malatesta v. Mitsubishi Aircraft International, Inc., No. 1-94-0690, 1995 WL 529693 (1st Dist., Sept. 8, 1995)

Zuber Doctrine: $622,049.77 Attorney Fee Affirmed - Back to WC Index
The Chaney case held petitioner's attorney was entitled to an award of fees under section 5(b) of the Illinois Workers' Compensation Act and pursuant to Zuber v. Illinois Power Co., 135 Ill. 2d 407, 553 N.E.2d 385, 142 Ill. Dec. 871 (1990).

The petitioner worked for Guarantee Electric Company when his head was crushed by an overhead crane. He was permanently and totally disabled. Petitioner also filed a personal injury case against Granite City Steel. This case was settled for $7.5 million. $2.5 million went to Chaney's attorney pursuant to a retainer contract and $42,953.56 went to Chaney's attorneys for costs in prosecuting the lawsuit against Granite City Steel. $3.5 million was applied to the purchase of an annuity for Chaney and $415,733.14 went to Guarantee Electric Company to satisfy its workers' compensation lien. The balance of $1,041,313.30 went to Chaney's parents.

Pursuant to the Zuber doctrine, petitioner's attorney who had already received $2.5 million pursuant to a retainer contract claimed he was entitled to fees on the amount of compensation the employer was relieved from paying by virtue of the common law settlement.

The court determined the present cash value of the caretaking expenses, workers' compensation benefits and medical expenses for the petitioner totalled $5,263,199. This represented the present cash value of all future compensation due Chaney from his employer. The trial court added the $415,733.34 figure representing workers' compensation benefits paid to date and arrived at a total figure of $5,678,932.30 for the present value of the employer's total past and future workers' compensation liability to Chaney.

The court held petitioner's attorney was entitled to an additional $622,049.77 in fees from the employer relying on Zuber. This was a case of first impression since Zuber did not involve a situation where the attorney was fully compensated under his contract with the claimant as in this case.

The court reasoned that Zuber fees may be assessed against the amount of compensation paid up to the date of settlement as well as against future compensation which the employer is relieved from paying. Based on the reasoning of Zuber and the language of section 5(b), the court determined that petitioner's counsel did not receive a double recovery for the same services. According to the court he received two separate fees and both in extremely large amounts. Each fee was for separate functions and authorized under different laws. The one-third fee settlement was based upon a contract with the plaintiff. His additional fee was for substantially contributing to procurement of settlement monies out of which the employer was reimbursed. The court believed petitioner's attorney earned his fee under section 5(b) by negotiating a settlement with Granite City which relieved the employer from paying millions of dollars of compensation to the petitioner. Chaney v. National Steel, 272 Ill. App. 3d 850, 651 N.E.2d 731, 209 Ill. Dec. 553 (5th Dist. 1995)

Employer's Kotecki Protection Affirmed - Back to WC Index
The court construed Schrock v. Shoemaker, 159 Ill. 2d 533 (1994) as expressing the Supreme Court's concern with the balancing of the rights of the parties without exposing the employer to excessive liability in violation of the Kotecki rule. A third-party contribution action against an employer who paid workers' compensation benefits should not be dismissed with a waiver of the workers' compensation lien when the underlying claim was for loss of consortium by the employee's spouse who did not directly receive workers' compensation benefits from the employer. Waiver of the lien and dismissal of the employer was not an appropriate solution under the rule in Schrock because it would give the plaintiff a double recovery. The court's resolution included a review of Lannom v. Kosco, 158 Ill. 2d 535 (1994), which specifically approved of dismissals of third-party complaints against employers in cases involving loss of consortium when the employer waived its workers' compensation lien. Lannom did not require approval of the employer's dismissal upon waiver of the workers' compensation lien in this case. The court held that the trial court's dismissal of the defendant's second amended third-party complaint should be reversed. They ordered the employer was permitted to assert its lien against the employee's recovery in the third-party action. The court remanded the case to the circuit court for further proceedings consistent with the decision and held that the employer's liability to the defendant shall be limited to an amount no greater than its workers' compensation liability. Christensen v. Northern Illinois Gas Co., No. 2-94-1294, 1995 WL 571402 (2d Dist., Sept. 28, 1995)

JURISDICTION - Back to Table of Contents

Illinois Residence Key Factor In Determining Jurisdiction - Back to WC Index
The purpose of the Illinois Workers' Compensation Act is to benefit citizens of Illinois. Petitioner's status as a resident of Illinois and the fact that the original contract for hire was made in Illinois was sufficient to confer jurisdiction.

The petitioner originally applied for employment in Illinois in 1984 as a driver of a car hauling truck. He was trained in Illinois and worked out of the Illinois terminal until November of 1990. He voluntarily transferred to a new facility in Tennessee and received work assignments and paychecks from Tennessee. He was injured in 1992 in New Jersey. He returned to Illinois for treatment and testified at arbitration that he lived in Illinois. The arbitrator found Illinois had jurisdiction based upon the contract for hire being made in Illinois and awarded benefits. The court held petitioner was an Illinois resident. The Act was created to benefit and promote the general welfare of the people of the State of Illinois including the petitioner. The court made the following statement:

Clearly, when the claimant is an Illinois resident, the fact that the contract for hire was made in Illinois is sufficient to confer jurisdiction, and it is not necessary to evaluate the other factors. . . .

STATUTE OF LIMITATION CASES - Back to Table of Contents

Limitations Defense Upheld - Back to WC Index
Petitioner's claim for benefits was barred by the statute of limitations. The claimant was injured on July 29, 1987 and received a settlement offer from the carrier on May 23, 1990. Petitioner's mother worked as a secretary for the employer and was in charge of all of the workers' compensation claims. The petitioner and her mother did not accept the offer. They wanted to wait for a medical report. Petitioner and her mother received no further communication from the insurer until they received a letter dated December 15, 1990 advising them that the case had been closed because the statute of limitations had run.

In order for an employer to be estopped from raising the defense of statute of  limitations, there must be a showing of affirmative conduct on the part of the employer that lulls an employee into a false sense of security causing him to delay or waive the assertion of rights. There was no evidence of that in this case. The court found that the only delay came from the petitioner and her mother who did not accept the offer pending the receipt of a medical report. The court held there was no affirmative duty on the part of the insurer or employer to advise a claimant when the statute of limitations would run. The court also rejected petitioner's claim that failure of the employer to provide the petitioner with the workers' compensation booklet would estop the employer from asserting the statute of limitations defense. Tegeler v. Industrial Comm'n, No. 5-94-0643WC, 1995 WL 616627 (5th Dist., Oct. 19, 1995)

CAUSAL CONNECTION CASES - Back to Table of Contents

Slip And Fall At Work: At Least A Contributing Factor - Back to WC Index
The appellate court will not set aside an Industrial Commission finding favoring causal connection where the claimant suffered a work-related accident and underwent surgery within a month and a half to remove herniated discs. The treating physician opined that the accident was a causative agent in producing the claimant's condition of ill-being. The claimant need only prove some act or phase of employment was a causative factor in his ensuing injury to recover benefits under the Act. He need not prove it was the sole principal cause. The court acknowledged claimant already had a weakened back from the previous surgery. It noted he suffered a significant injury to his back which caused symptoms consistent with his disc injury. The court went on to state:

Whether this accident caused the herniation, or whether the flu or chiropractic manipulations did, is irrelevant as, in all probability, the accident started the chain of events culminating in the disc herniation.

EXCLUSIVE REMEDY CASES - Back to Table of Contents

Arbitrator's Decision: Res Judicata As To Employment Relationship - Back to WC Index
An arbitration decision can constitute res judicata on the issue of petitioner's employment status. Petitioner's employment relationship stipulation that he was an employee of the respondent was held to be res judicata on the issue when raised in the later common law case. The petitioner's election to pursue workers' compensation benefits under the Act precluded him from advancing an inconsistent position in the instant civil litigation. The stipulation at arbitration indicating he and the respondent were operating under an employee/employer relationship resulted in a memorandum of decision which found such a relationship existed. The court concluded the arbitrator's decision as to the existence of an employee/employer relationship was final for purposes of res judicata. The trial court's granting of summary judgment in favor of the defendants on the basis of the exclusive remedy provisions in the Illinois Workers' Compensation Act was proper. Esposito v. Dior Builders, 274 Ill. App. 3d 338, 653 N.E.2d 921, 210 Ill. Dec. 726 (1st Dist. 1995)

Intentional Tort Exception: Requires Proof Of Specific Intent To Injure - Back to WC Index
The court instructed the jury that an employee seeking to recover against his employer on an intentional tort theory must prove by a preponderance of the evidence that the employer specifically intended to injure plaintiff. The court rejected the substantial certainty test and required proof by a preponderance of the evidence that the employer specifically intended to injure plaintiff. This plaintiff claimed Ashland Oil Company and various supervisors employed by Ashland caused him to handle, inhale, smell and otherwise ingest toxic vapors and fumes and otherwise withheld the toxic and poisonous nature of these chemicals. Limanowski v. Ashland Oil Co., No. 1-92-3657, 1995 WL 521054 (1st Dist., Sept. 5, 1995)

Dual Capacity Exception: Malpractice Action Against Employer Hospital Allowed - Back to WC Index
The plaintiff's negligence action against her doctor and hospital employer was allowed. The hospital had dual capacities such that the exclusive remedy doctrine was no bar to plaintiff's lawsuit against the employer hospital. The hospital was not serving simply as an employer. The defendant hospital was a treating medical provider at the time of the surgical procedures, and its duties were unrelated to those obligations flowing from its role as plaintiff's employer. It owed the same duty to the plaintiff that it owed to every other patient which was to exercise a degree of reasonable care as the patient's known condition required. Plaintiff's lawsuit for malpractice was not barred by the exclusive remedy provision of section 5(a) of the Workers' Compensation Act. Dalton v. Community General Hosp., ___ Ill. App. 3d ___, 655 N.E.2d 462, 211 Ill. Dec. 433, cert. of importance denied (Oct. 13, 1995)

Dual Capacity Exception: A Corporate Officer's Entitlement To Benefits - Back to WC Index
This plaintiff filed an action against the corporation seeking recovery for personal injuries sustained in a farm truck accident. The defendant filed a motion to dismiss asserting the fellow servant doctrine precluded plaintiff from imputing his co-worker's negligence to their common law employer on the theory of respondeat superior. The trial court granted the motion and found the plaintiff and the negligent co-worker were members of the same department and that the fellow servant rule applied. He was not able to maintain a workers' compensation claim because the defendant had withdrawn from workers' compensation coverage for its corporate officers under section 3 of the Act.

The court refused plaintiff's request to abolish the fellow servant rule, and the case was remanded to the trial court to determine if plaintiff and his co-worker's duties were such that they were cooperating with each other at the time of the accident. The court also held plaintiff could seek recovery from a fellow officer of the corporation because at the time he was performing duties of manual labor unrelated to their positions as officers of the corporation. Heepke v. Heepke Farms, Inc., 271 Ill. App. 3d 935, 649 N.E.2d 958, 208 Ill. Dec. 598 (5th Dist. 1995)

Pension Code Exclusive Remedy Provision Affirmed - Back to WC Index
The petitioner was a Chicago police officer who sued the City of Chicago for negligence regarding injuries suffered when part of a city bridge fell on him. He parked his car in the police parking lot and a chunk of concrete fell from the bridge and struck him fracturing his arm. The city argued the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 1081, par. 1-101 et seq., now 40 ILCS 5/1-101 et seq.) barred the common law action. The court found that the Workers' Compensation Act was the guide for interpretation of the Pension Code concerning the issue of whether the officer's injuries arose out of and in the course of his employment. Since the public did not need to pass under the bridge as regularly as police officers, its use exposed employees to an increased risk. Petitioner's injuries did arise out of his employment and his exclusive remedy was under the Pension Code. The common law action was barred. Fligelman v. City of Chicago, No. 1-94-2801, 1995 WL 602877 (1st Dist., Oct. 13, 1995)

Exclusive Remedy: Loaned Employee - Back to WC Index
Plaintiff's negligence action against a borrowing employer was properly dismissed and barred by the exclusive remedy provisions of the Illinois Workers' Compensation Act. Plaintiff reported to the loaning employer each morning and was driven to various job sites by the loaning employer. He was paid by the loaning employer. He understood he was to follow the directions of the several companies that made use of his time. He was aware that he had to do work in accordance with the borrowing employer's requirements. Plaintiff had consented to work for the borrowing employer and follow the instructions of the borrowing employer's supervisors. There were no loaning employer representatives present at the facility. This plaintiff was well aware of the nature of his loaned employment which had placed him in his fifth temporary work assignment during his four week tenure with the loaning employer. Crespo v. Weber Stephen Products Co., No. 1-94-3221, 1995 WL 574311 (1st Dist., Sept. 29, 1995)

WAGE DIFFERENTIAL CASES - Back to Table of Contents

8(d)(1) Wage Differential Available To Chicago Bear Offensive Lineman - Back to WC Index
The appellate court held a wage loss differential award should have been entered in favor of the claimant as a matter of law. Evidence at trial created a presumption that but for petitioner's injury he would have been in full performance of his duties as a Bears offensive lineman after 1983. He was entitled to two-thirds of the difference between the average amount he would have been able to earn in the full performance of his duties as a lineman and the average amount he was able to earn in suitable employment after the injury. The court concluded professional football players were skilled workers contemplated under the statute and that the shortened work expectancy in claimant's career would not preclude him from a wage loss differential award. Albrecht v. Industrial Comm'n, 271 Ill. App. 3d 756, 648 N.E.2d 923, 208 Ill. Dec. 1 (1st Dist. 1995)

TEMPORARY TOTAL DISABILITY CASES - Back to Table of Contents

TTD Award Upheld: Continued Performance Of Regular Job Duties And Lay Off Notwithstanding - Back to WC Index
The appellate court refused to draw inferences different from those drawn by the Commission regarding TTD award. The employer challenged the arbitrator's and Industrial Commission's award of TTD arguing that the petitioner was not entitled to TTD benefits since the injury he received permitted him to continue to perform his regular job duties. His employment ended due to a lay off which was unrelated to his physical condition. The court characterized the issue on appeal as a question of fact and determined that the fact that the claimant was no longer receiving medical treatment and had the ability to do light work did not preclude a finding of temporary total disability. The court ignored the fact that the claimant was able to work with restrictions. They acknowledged there was evidence in the record to support the Commission's decision as well as evidence to support a different inference from the evidence. They refused to substitute their judgment for the judgment of the Commission. TTD awards sustained at the Industrial Commission level will not be easily reversed by the appellate court where the issue centers on the petitioner's ability to work, and the court can characterize the matter as a question of fact. Whitney Productions, Inc. v. Industrial Comm'n, 274 Ill. App. 3d 28, 653 N.E.2d 965, 210 Ill. Dec. 770 (2d Dist. 1995)

RETALIATORY DISCHARGE CASES - Back to Table of Contents

Retaliatory Discharge Action Pre-Empted By Federal Home Loan Bank Act - Back to WC Index
Plaintiff's common law action for retaliatory discharge was in direct conflict with the Federal Home Loan Bank Act which permits the employer to dismiss at pleasure without liability under state common law. Plaintiff's cause of action was pre-empted by the Federal Home Loan Bank Act. Confer v. Federal Home Loan Bank of Chicago, 271 Ill. App. 3d 1061, 649 N.E.2d 476, 208 Ill. Dec. 420 (1st Dist. 1995)

Retaliatory Failure To Rehire Or Recall: Reasonable Expectation Of Rehire - Back to WC Index
While on disability leave, the employer sent the plaintiff a notice of dismissal. This terminated the employer/employee relationship. Due to her discharge, the plaintiff could not establish a reasonable expectation of rehire as required for a cause of action under section 4(h) of the Illinois Workers' Compensation Act. As a result, defendants were entitled to summary judgment as a matter of law. Section 4(h) has a threshold requirement that a claim for retaliatory failure to recall or rehire must be based upon a reasonable expectation of the employee that he or she will be permitted to return. An employee who has been fired generally can have no reasonable expectation of rehire because the courts will not compel an employer to reinstate a discharged employee absent a statutory requirement of reinstatement. The Illinois Workers' Compensation Act contains no requirement of rehire but merely creates a cause of action for which money damages would ordinarily be adequate compensation. An employee who is fired in violation of the Workers' Compensation Act cannot establish a threshold requirement of a retaliatory refusal to rehire claim. Where an employee has been granted leave, the employer's approval of his temporary absence is prima facie evidence of an employee's reasonable expectation of recall at the end of his leave. An employer who fails to recall an employee may be subject to a cause of action for retaliatory failure to recall. Webb v. County of Cook and Edward J. Rosewell as County Treasurer for the County of Cook, No. 1-94-0908, 1995 WL 558941 (1st Dist., Sept. 21, 1995)

CONTRIBUTION CASES - Back to Table of Contents

Assignment Held Void Ab Initio - Back to WC Index
Defendant's assignment to the plaintiff of its right of contribution against the decedent's employer was invalid, since the defendant did not pay in excess of its effective pro rata share of the common liability. The plaintiff and the defendant City of Sycamore agreed that $500,000 represented the damages suffered by the plaintiff and, based upon this figure, settled the wrongful death suit. In exchange for release, the City paid the plaintiff $400,000 and assigned to the plaintiff its right of contribution against the employer whose lien was approximately $100,000. This lien was satisfied from the $400,000 settlement amount. The Supreme Court held the City had no right of contribution to assign. The purported assignment was void ab initio. Claudy v. Commonwealth Edison Co., S. Ct. Docket No. 76491, 1995 WL 646543 (Nov. 2, 1995)

MISCELLANEOUS CASES

Premature Unjust Enrichment - Back to Table of Contents - Back to WC Index
An employer's common law action for unjust enrichment to recover TTD benefits paid pursuant to an arbitrator's award which was reversed by the Commission was premature since an appeal regarding TTD was pending. Until the issue of entitlement to TTD benefits under the Act was finally determined such an action for unjust enrichment could not be filed. The court modified the trial court's dismissal indicating it should have been without prejudice to the plaintiff's right to refile its action at such a time as the extent of the entitlement to TTD benefits has been fully and finally determined under the Act. Scott Wetzel Services v. Regard, 271 Ill. App. 3d 478, 648 N.E.2d 1020, 208 Ill. Dec. 98 (1st Dist. 1995)

Jurisdiction: Strict Compliance Required - Back to Table of Contents - Back to WC Index
Strict compliance with the Act is required to vest subject matter jurisdiction in the circuit court. Evidence of the attorney's authority to sign the bond must be filed with the bond in order to invoke subject matter jurisdiction under the Act. Since there was nothing on file within the 20 day period which indicated respondent's attorney had authority to sign the bond, the dismissal for want of subject matter jurisdiction was appropriate. Berryman Equipment v. Industrial Comm'n, No. 2-94-1376WC, 1995 WL 494612 (2d Dist., Aug. 18, 1995)

IME Report As Defamation - Back to Table of Contents - Back to WC Index
Written statements contained in a consulting physician's report to an insurance company were protected against a defamation action by qualified privilege, but verbal statements made by the consulting physician to a workers' compensation claimant may be actionable. Barakat v. Matz, 271 Ill. App. 3d 662, 648 N.E.2d 1033, 208 Ill. Dec. 111 (1st Dist. 1995)

Evidence: Manifest Weight Lacking - Back to Table of Contents - Back to WC Index
The appellate court rarely reverses on the manifest weight of evidence standard. In this case, the appeals court determined that a review of the evidence indicated the arbitrator's decision which was adopted by the Commission was based upon incorrect facts and facts not found in the record. The court assessed the credibility of the claimant through the record differently than the arbitrator and held claimant's less than convincing testimony and the arbitrator's inaccurate decision supported the finding that the decision was against the manifest weight of the evidence. Imperial Bondware v. Industrial Comm'n, 273 Ill. App. 3d 725, 653 N.E.2d 399, 210 Ill. Dec. 494 (5th Dist. 1995)

Penalty Award Upheld - Back to Table of Contents - Back to WC Index
An 87 day delay in paying an award which has not been reviewed supported the arbitrator's award of penalties and attorneys' fees. The employer was allowed credit for the amount stipulated at arbitration as being paid before the award. Those amounts paid by the employer before the award would be deducted before calculation of penalties. Roodhouse Envelope Co. v. Industrial Comm'n, No. 4-94-0531WC, 1995 WL 571411 (4th Dist., Sept. 28, 1995)

Collateral Estoppel - Back to Table of Contents - Back to WC Index
Collateral estoppel did not apply where there was no final judgment on the merits in the prior litigation. The findings of the arbitrator and the Industrial Commission were not final because they were appealed to the circuit court. The petitioner had filed a workers' compensation claim against his employer alleging exposure to fumes and chemical solvents caused disability. After seeking review in the circuit court, the dispute was settled and the appeal was dismissed. Collateral estoppel could not apply where the workers' compensation appeal was dismissed after settlement and before a hearing on the merits. The circuit court judgment could not serve as a basis of collaterally estopping claimant's suit against the defendants. Arnett v. Environmental Science & Engineering, Inc. and Charles Jenkins, No. 3-94-0707, 1995 WL 547962 (3d Dist., Sept. 12, 1995)

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