AVERAGE WEEKLY WAGE - Back to Table of Contents

Concurrent Employment: Lay Off Status - Back to WC Index
Concurrent employment includes a full-time occupation as a sheet-metal worker even though the petitioner had been laid off from such work at the time of his injury. Despite a temporary layoff, petitioner's earnings as a sheet-metal worker were included in his wage computation for a work-related injury that occurred while working part-time as a maintenance worker for the respondent. The part-time employer knew petitioner worked concurrently as a sheet-metal worker. The temporary layoff did not sever petitioner's employment relationship because he was subject to recall as a sheet-metal worker. Jacobs v. Industrial Comm'n, ___ Ill. App. 3d ___, 646 N.E.2d 312, 206 Ill. Dec. 945 (2d Dist. 1995)

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

Descending Stairs: Carrying Knives Increased Risk - Back to WC Index
Petitioner's injuries did arise out of employment. He fell while going down non-defective stairs carrying bakery knives weighing 50 pounds. While there was no evidence to show the stairs caused the fall, the fact he carried knives increased the dangerous effects of the fall when they hit the petitioner in the chest increasing the impact of the fall. Nabisco Brands, Inc. v. Industrial Comm'n, 266 Ill. App. 3d 1103, 641 N.E.2d 578, 204 Ill. Dec. 354 (1st Dist. 1994)

SUBROGATION/LIEN CASES - Back to Table of Contents

Lien Waiver: 100% Set Off - Back to WC Index
Corley v. James McHugh Construction Co., 266 Ill. App. 3d 618, 639 N.E.2d 1374, 203 Ill. Dec. 555 (1st Dist. 1994) was affirmed. The defendant gets a 100% setoff where the employer waives its entire workers' compensation lien. With a waiver there is no reimbursement to the employer and therefore no 25% fee reduction. Thies v. Korte-Plocherm Construction Co., Inc., 268 Ill. App. 3d 217, 644 N.E.2d 523, 205 Ill. Dec. 967 (5th Dist. 1994)

Contribution Liability: Not Reduced By Lien Recovery Reductions - Back to WC Index
A third-party plaintiff can recover the full amount of its judgment against a third-party defendant employer limited only by the Kotecki rule. The employer is still required to pay statutory fees and costs and is not entitled to reduce its contribution liability by those amounts. Rice v. McDonald's Corp., 268 Ill. App. 3d 201, 644 N.E.2d 482, 205 Ill. Dec. 926 (5th Dist. 1994)

Waiver Of Lien: Good Faith Finding Sustained - Back to WC Index
An employer's waiver of its workers' compensation lien as a part of settlement with a plaintiff/employee constitutes adequate consideration under section 2(c) of the Contribution Act since the employer gives up the right to seek reimbursement from the plaintiff. The courts consistently find settlements in "good faith" where the plaintiff receives a lump sum settlement amount and a waiver of the employer's workers' compensation lien. Halleck v. Coastal Building Maintenance Co., No. 2-94-0065, 1995 WL 104391 (2d Dist., Mar. 13, 1995)

CAUSAL CONNECTION CASES - Back to Table of Contents

Carpal Tunnel Causation: Manifestation Before Retirement - Back to WC Index
Petitioner's carpal tunnel syndrome claim was denied where he failed to distinguish the nature of a recent injury from an older one. This petitioner did not suffer carpal tunnel symptoms until one month after his retirement and the treating doctor's opinions on causation were made without knowledge of all of the facts. He failed to prove the injury was not the result of normal aging. Petitioner's pre-existing injury and residual effects from those injuries to the arm had already been compensated. He did not establish that his current claims of carpal tunnel and cubital tunnel syndrome were the result of the work he performed for the three years prior to his retirement. Cochran v. Industrial Comm'm, Rule 23, Nos. 3-94-0389WC & 3-94-0390WC (3d Dist., Feb. 1, 1995) Tazewell Co. Aff'd.

Manifestation Of Symptoms: One Year Delay Accepted - Back to WC Index
A causal relationship existed between petitioner's work injury and his symptoms which manifested over one year after the date of accident. Petitioner was struck in the head by a joist at work and one year after the injury began to experience physical problems. The arbitrator relied on a physical therapist report indicating cervical bulging was often found after a direct blow to the head. There was a dissent arguing for no causal connectionbecause the claimant did not see the physician who had treated the injury until after he bumped his head at home causing his symptoms to reoccur. A treating neurologist found no causal relationship between the previous disability and his current complaints. The dissent contended that based upon the chain of events and medical histories, the petitioner sustained an intervening accident which broke the causal connection between the work accident and his subsequent condition. Augie & Earl's Chevrolet v. Industrial Comm'n, Rule 23, No. 3-94- 0375WC (3d Dist., Feb. 3, 1995) Henry Co. Aff'd.

Repetitive Trauma: Six Months Of Work Sufficient Aggravation - Back to WC Index
Six months of employment as a carpenter was sufficient exposure to constitute an aggravation of petitioner's underlying and pre-existing carpal tunnel syndrome despite petitioner's 45 year history of working as a carpenter. The court determined that repetitive trauma injuries become compensable when they manifest themselves. R.L. Sohol Carpentry, Inc. v. Industrial Comm'n, Rule 23, No. 3-94-0430WC (Feb. 6, 1995) Will Co. Rev'd.

Bowling Causation: No Break - Back to WC Index
Petitioner's bowling activity on February 14, 1992, did not constitute an intervening accident breaking the causal connection between his November 30, 1990 accident and his present condition of ill-being.

He was injured on November 30, 1990, while sitting at a work bench. He was struck in the head while lifting parts. On February 18, 1991, he underwent a medial fasciectomy and foraminotomy at C6-7 with posterior decompression of the nerve root. He was released on April 25, 1991 to regular work. His condition improved after surgery, but he still had lingering numbness and pain in the neck, shoulder, and left arm. On October 24, 1991, another MRI revealed a recurrent herniated disc at C6-7 on the left. Following the bowling incident on February 14, 1992, he underwent a second surgery on May 8, 1992, and did not return to work after the bowling incident.

The Industrial Commission determined claimant's bowling incident was an intervening cause or accident. The appellate court held claimant's condition would not have progressed to the point it did but for the original work-related accident. Claimant's recurrent disc problems stemmed from the original November 30, 1990 incident while bending under his work bench to pick up parts. Eight months after the surgery and four months prior to the bowling incident, the second MRI revealed recurrent disc pathology. The mere fact petitioner experienced an upsurge of neck pain while bowling a few months later does not defeat causation. The MRI taken after the bowling incident revealed the same progression of the disc injury. Absent the initial injury, there would have been no recurrent disc defect and no condition which could have been aggravated by bowling. Petitioner's doctor concluded bowling had nothing to do with his current condition of ill-being and problems were still the direct result of the work incident in 1990. Teska v. Industrial Comm'n, 266 Ill. App. 3d 740, 640 N.E.2d 1, 203 Ill. Dec. 574 (1st Dist. 1994)

EXCLUSIVE REMEDY - Back to Table of Contents

Common Law Death Claim Barred Despite Lack Of Compensability - Back to WC Index
Claimant's common law death claim was barred by the exclusive remedy doctrine despite a determination that the death was not compensable. The workers' compensation death claim was not compensable because the next of kin were not dependent upon the decedent. Despite this determination, the death did arise out of and in the course of decedent's employment. This finding barred the common law death claim pursuant to the exclusive remedy doctrine. Laird v. Baxter Health Care Corp., No. 1-92-4213 WC, 1994 WL 705323 (1st Dist., Dec. 19, 1994)

Barred As To All - Back to WC Index
Plaintiff's common law suit against other members of a joint venture was barred by the exclusive remedy doctrine. Plaintiff was an employee of Newberg Construction which was a member of a joint venture. The court found that section 5 also bars any claim against petitioner's employer and any other member of the joint venture. The court relied on Smith v. Metropolitan Sanitary Dist. (1979) 77 Ill. 2d 313, which applied section 5 to bar plaintiff's action for negligence in violation of the Structural Work Act against a member of a joint venture. The same legal principles which govern partnerships applies to determine the rights and liabilities of members of a joint venture. Moran v. Gust K. Newberg/Dugan & Meyers, ___ Ill. App. 3d ___, 645 N.E.2d 489, 206 Ill. Dec. 484 (1st Dist. 1994)

JURISDICTION CASES - Back to Table of Contents

Act Of Legal Representation: Six Months To Sue Thereafter - Back to WC Index
The filing of a workers' compensation claim by the father of a minor petitioner did constitute an act of legal representation pursuant to section 5(a). The minor petitioner's rejection of the Workers' Compensation Act within six months of the appointment of a legal representative preserved his right to pursue common law remedies. The father's role as legal representative of the minor petitioner took effect when he filed a workers' compensation claim with the Industrial Commission naming himself as "father and next friend" in the pleadings. Stilp v. Mid States Corporation Conveying and Fabricating Specialists, 268 Ill. App. 3d 265, 644 N.E.2d 41, 205 Ill. Dec. 825 (1st Dist. 1994)

Contract Of Employment: Establish By Referral System - Back to WC Index
An agreement between a local labor union and contractors establishing a referral system for hiring out of the Illinois union hall conferred jurisdiction over petitioner's injuries which occurred in Indiana. The key factor in determining jurisdiction was the union agreement and referral system. This agreement demonstrated the employer's intent that the union local act as their exclusive agent. The employer and local members agreed employment would be handled exclusively through the union hall as agent for both the employer and its members. The contract of employment was deemed executed at the union hall located in Illinois. Hunter Corporation v. Industrial Comm'n, ___ Ill. App. 3d ___, 645 N.E.2d 259, 206 Ill.
Dec. 254 (1st Dist. 1994)

Circuit Court: Paramount Jurisdiction Over Coverage Issue - Back to WC Index
While the Industrial Commission and circuit court have concurrent jurisdiction regarding determination of coverage issues, where questions of law exist, jurisdiction of the circuit court is paramount. The trial court's jurisdiction in this case was paramount where an issue of law was presented in a declaratory judgment suit. Employers Mutual Companies v. George Skilling, 163 Ill. 2d 284, 644 N.E.2d 1163, 206 Ill. Dec. 110 (1994)

TTD/19(b) CASES - Back to Table of Contents

Stacking 19(b) Petitions Upheld - Back to WC Index
Both the arbitrator and Commission had jurisdiction to decide petitioner's second 19(b) petition while his first 19(b) decision remained on appeal. An award pursuant to section 19(b) does not bar an arbitrator from making additional determinations in a case as to the nature of claimant's disability. Each 19(b) petition was a separate proceeding involving separate and distinct periods of time. Each section 19(b) decision was a separate and appealable order. Elmhurst-Chicago Stone Co. v. Industrial Comm'n, No. 2-94-0396WC, 1995 WL 77581 (2d Dist., Feb. 24, 1995)

TTD Termination: Award of Retirement Benefits Insufficient - Back to WC Index
Petitioner's award of social security retirement benefits did not automatically end his right to TTD benefits. This claimant had not removed himself from the work force. His doctors had removed him from employment. Whether the claimant desired work was only relevant if he was physically able to do so. The court could not accept the determination that receipt of social security retirement benefits automatically terminated his entitlement to TTD especially when the claimant was still totally disabled. The court reversed the termination of benefits which began on the date when the petitioner received social security retirement benefits and remanded to the Commission with instructions to award a period of TTD terminating on the date the Commission determined that the claimant was as far recovered from the nature of the injuries as would permit. Successful termination of TTD benefits must be with reference to the stabilization of petitioner's condition and determining whether the claimant is as far recovered as the nature of his injuries would permit. Schmidgall v. Industrial Comm'n, ___ Ill. App. 3d ___, 644 N.E.2d 1206, 206 Ill. Dec. 153 (4th Dist. 1994)

RETALIATORY DISCHARGE CASES - Back to Table of Contents

No Tort Of Retaliatory Demotion Or Discrimination - Back to WC Index
Illinois law recognizes a tort of retaliatory discharge but no tort of retaliatory demotion or retaliatory discrimination. Furthermore, a claim of retaliatory discharge cannot be predicated on section 4(h) of the Illinois Workers' Compensation Act. The tort of retaliatory discharge is a limited tort and an exception to the at-will employment doctrine. The Supreme Court refused to open broad new avenues of litigation for less defined types of retaliatory conduct in the work place. Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877, 206 Ill. Dec. 625 (1994)

MISCELLANEOUS CASES

Spoilation Of Evidence: Carrier As Defendant - Back to Table of Contents - Back to WC Index
An injured plaintiff may allege a negligent spoilation of evidence claim against an insurer where the injury resulted from the malfunctioning propane heater which was lost by the workers' compensation insurer. The negligence action would also be joined with the plaintiff's product liability action against the manufacturer of the heater. The Court rejected the wilful and wanton spoilation of evidence counts since the complaint alleged only that the insurer's agent placed the heater in a closet and that it later could not be found. These allegations were not sufficient to sustain a wilful and wanton count. Boyd v. Travelers Ins. Co., Docket No. 75466, 1995 WL 19269 (Filed 1/19/95)

19(g): Five Year Statute Of Limitation - Back to Table of Contents - Back to WC Index
A five year statute of limitations applied to causes of action for collection of unpaid workers' compensation benefits pursuant to section 19(g). The five year period provided in section 13-205 of the Code of Civil Procedure applied rather than the ten year period in section 13-206 because the liability resulted from a statute. An action to enforce such liability was a "civil action not otherwise provided for" and was therefore covered by the five-year statute of limitations. Blacke v. Industrial Comm'n, 268 Ill. App. 3d 26, 644 N.E.2d 23, 205 Ill. Dec. 807 (3d Dist. 1994)

Remand For Additional Evidence - Back to Table of Contents - Back to WC Index
The Commission has the authority to remand a case to the arbitrator for introduction of further evidence on causation. Such a remand did not violate section 19(e) which prohibits introduction of additional evidence before the Commission. It does not prohibit introduction of evidence before an arbitrator, and the Commission has the power to remand a case to an arbitrator. Honda of Lisle v. Industrial Comm'n, ___ Ill. App. 3d ___, 646 N.E.2d 318, 206 Ill. Dec. 951 (2d Dist. 995)

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