AVERAGE WEEKLY WAGE - Back to Table of Contents

Profits Or Business Income Not Included - Back to WC Index
Petitioner's business income should not be included in the calculation of average wage. Profits from a business are not considered wages under the Act. Paoletti v. Industrial Comm'n, 279 Ill. App. 3d 988, 665 N.E.2d 507, 216 Ill. Dec. 447 (1st Dist. 1996)

Fringe Benefits Not Included - Back to WC Index
The value of fringe benefits such as pension contributions are not included in the calculation of petitioner's average wage. These benefits were not paid by the employer based upon the number of hours commonly regarded as a day's work for his employment. They were actually paid to the union and not directly to the petitioner. Section 10(g) of the Act makes no reference to the inclusion of fringe benefits in determining wage. Ogle v. Industrial Comm'n, ___ Ill. App. 3d ___, 673 N.E.2d 706, 220 Ill. Dec. 562 (1st Dist. 1996)

Overtime Hours Included - Back to WC Index
Where petitioner's normal workweek was a mandatory 48 hours, the overtime hours should be included in the average wage calculation at straight time so as to not reflect overtime earnings. Petitioner worked overtime 42 out of 52 weeks, and worked 48 hours each of those weeks. Ogle v. Industrial Comm'n, ___ Ill. App. 3d ___, 673 N.E.2d 706, 220 Ill. Dec. 562 (1st Dist. 1996)

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

Idiopathic Fall Not Compensable - Back to WC Index
Petitioner failed to establish his employment significantly contributed to his injury by placing him in a position of greater risk of injury from falling. An idiopathic fall results from internal or personal weakness of the claimant as opposed to an unexplained fall. Petitioner's injury was described as "left knee giving way causing the injury." While petitioner testified he did not know what made him fall, the Commission found an idiopathic injury resulting from his knee giving out. Stapleton v. Industrial Comm'n, 282 Ill. App. 3d 12, 668 N.E.2d 15, 217 Ill. Dec. 830 (5th Dist. 1996)

Repetitive Trauma Claim Denied - Back to WC Index
Petitioner's repetitive trauma claim was not compensable. He had a long history of back problems, and the medical evidence did not make any reference to a work-related injury until 14 months after the alleged incident. Petitioner was a scanner for Venture stores and claimed repeated lifting of boxes of merchandise aggravated her low back. Petitioner had not proved a causal relationship between the work activity and her back surgery. The treating physician's opinion as to causation was phrased as "may well have caused" her condition of ill-being. The Commission was not required to accept his equivocal and ambiguous opinion as an undeniable truth that claimant's condition was indeed caused by repeated bending and lifting at work. McRae v. Industrial Comm'n, No. 5-96-0124WC, 1996 WL 748327 (5th Dist., Dec. 30, 1996)

SUBROGATION/LIEN CASES - Back to Table of Contents

Lien Waiver and Loss Of Consortium Claims - Back to WC Index
Plaintiffs sought damages for personal injuries and loss of consortium in a products liability action against defendants. One of the defendants brought a third-party complaint against the employer seeking contribution. The employer had fully satisfied its total liability under the Act by settling with the plaintiff and by waiving its workers' compensation lien. Dismissal of the defendant's third-party complaint for contribution was proper since an employer cannot be held liable for contribution on a loss of consortium claim in excess of its workers' compensation lien. Funes v. B&B Equipment, Inc., et al., 282 Ill. App. 3d 272, 668 N.E.2d 54, 217 Ill. Dec. 869 (1st Dist. 1996)

Lien Waiver and Medical Expense Evidence - Back to WC Index
An employer's lien waiver was not a bar to relevant evidence as to the amount of expenses despite being paid by the employer since such evidence could naturally and legitimately influence the jury's perception of the legitimacy of plaintiff's claim of inability to return to work and the extent of his pain and suffering. Kelly v. HCI Heinz Construction Co., 282 Ill. App. 3d 36, 668 N.E.2d 596, 218 Ill. Dec. 112 (4th Dist. 1996)

Lien Recovery and Death Case Damages - Back to WC Index
An employer's lien attaches to any recovery by an injured employee or his personal representative in an action against a third-party regardless of the manner in which the damages are allocated. There is nothing in section 5(b) that suggests a limitation on the employee's obligation of reimbursement from the third-party recovery. There is no statutory requirement that damages recovered by the employee or his personal representative match up with the workers' compensation benefits paid on behalf of the employee. Borden v. Servicemaster Management Services, 278 Ill. App. 3d 924, 663 N.E.2d 153, 215 Ill. Dec. 403 (1st Dist. 1996)

Lien Recovery: Attorneys' Fees 25% Not 33 1/3% - Back to WC Index
Plaintiff's counsel's offer to reduce an employer's statutory lien by a one-third contingent fee agreed upon in the common law action was rejected. An employer's statutory workers' compensation lien can only be reduced by 25%. An attorney contingent agreement does not supersede the statutory fee amount of 25%. Swets v. Tovar, ___ Ill. App. 3d ___, 673 N.E.2d 1048, 220 Ill. Dec. 627 (1st Dist. 1996)

Lien Recovery: Attorneys' Fees Again - Back to WC Index
Reaffirmed the holding in Swets that petitioner's counsel was only entitled to his 25% fee plus costs despite a contingent fee contract providing him with a one-third fee. American States Ins. Co. v. Marshall Bailey, et al., No. 1-95-3264, 1996 WL 767502 (1st Dist., Nov. 27, 1996)

STATUTE OF LIMITATIONS CASES - Back to Table of Contents

Estoppel - Back to WC Index
An employer is estopped from raising the statute of limitations as a defense where a claims adjuster lulls a claimant into a false sense of security with both a settlement offer and open negotiations. An employer has no duty to advise the claimant when the applicable statute of limitations would expire but can be estopped from raising the defense where negotiations occur close to the expiration of the limitation period. In this case, the adjuster misled the claimant into believing that a settlement offer remained open and that negotiations would continue. He knew when he commenced settlement negotiations the offer and negotiations would end two months and five days later when the statute of limitations expired. Negotiations which occur close to the expiration of the statute of limitations require the adjuster to be in good faith and inform the claimant that the settlement offer and negotiations would terminate when the statute runs. Tegeler v. Industrial Comm'n, 173 Ill. 2d 498, 672 N.E.2d 1126, 220 Ill. Dec. 114 (1996)

CAUSATION CASES - Back to Table of Contents

Suicide - Back to WC Index
Decedent's suicide after injuries to his left arm and neck was held compensable. A letter from a physician caused decedent to become distraught. Both petitioner and respondent's experts described decedent's receipt of Dr. Shea's letter as a "triggering event for the suicide." Decedent's suicide was part of an unbroken chain of events from injury to death. His suicide was not an independent intervening cause that would have occurred even in the absence of the injuries. Petitioner was not required to establish the work injury was the sole or principal cause of the suicide. Petitioner need only show the injury was a causative factor. Bocian v. Industrial Comm'n, 282 Ill. App. 3d 519, 668 N.E.2d 1, 217 Ill. Dec. 816 (1st Dist. 1996)

Aggravation Theory - Back to WC Index
Petitioner's childhood asthma was aggravated by exposure to substances in the workplace. Petitioner had not suffered complications from his childhood asthma (age three) until he began working for the employer and was exposed for years to pulmonary irritants. His work environment at least aggravated his underlying condition to the point he was diagnosed with an occupational disease. General Cooperage Co. v. Industrial Comm'n, ___ Ill. App. 3d ___, 672 N.E.2d 910, 220 Ill. Dec. 93 (1st Dist. 1996)

PERMANENT TOTAL CASES - Back to Table of Contents

No Stable Labor Market - Back to WC Index
Proffering medical evidence of permanent disability alone was insufficient to shift the burden of proving unavailability of employment to the employer. Petitioner failed to establish work was not available and a diligent but unsuccessful attempt to find work was made. Claimant did not attempt a job search nor did he show that no stable labor market existed for any of his services. Petitioners who submit medical evidence of permanent and total disability have not met their prima facie case for a permanent and total award. To shift the burden, a petitioner must initially look for work and fail to find any or submit evidence of no stable labor market for any of petitioner's services. Alano v. Industrial Comm'n, 282 Ill. App. 3d 531, 668 N.E.2d 221, 217 Ill. Dec. 836 (1st Dist. 1996)

Causation, Retirement and Occasional Wages - Back to WC Index
Petitioner's claim for permanent and total disability upheld despite a previous retirement. He had returned to gainful part-time employment one year after his retirement from working 11 years as a car salesman. He developed physical problems following a heated argument at work regarding service to a customer. He was diagnosed with a left pontine infarction with right hemiparesis and speech impairment. He did return to work after recovery on an on-call basis for a different dealership. Petitioner's examining physician, Dr. Greenberg, found causal relationship in favor of the petitioner. His symptoms began immediately after the altercation. He was called out of retirement and successfully performed his job until the confrontation and resulting stroke. He walks with a cane and has permanent weakness of the right side. His house was retrofitted to accommodate his disabilities. The fact he earns occasional wages or performs certain useful services did not preclude the permanent and total disability finding. Steve Foley Cadillac/Hanley Dawson v. Industrial Comm'n, 283 Ill. App. 3d 607, 670 N.E.2d 885, 219 Ill. Dec. 207 (1st Dist. 1996)

Odd Lot Proof - Back to WC Index
Petitioner must do more than make a prima facie case of permanent and total disability. She must prove by a preponderance of the evidence that she falls into the odd lot category. The term prima facie when discussing odd lot means "initially." Petitioner must initially establish she falls under the odd lot category before the burden shifts to the employer to show availability of work. The Commission is not obligated to find permanent and total disability simply because the petitioner puts on evidence that she could not find a job. Petitioner was not obviously unemployable. There was no medical evidence she was totally disabled. Petitioner had not sought employment since August of 1989 for reasons not related to the injury in 1988. Petitioner's treating physician, Dr. Marrese, found she could return to light duty. She admitted she could perform light duty. The Commission was not obligated to accept the contrary opinion of a vocational expert that the claimant was unemployable. Respondent had introduced medical evidence she was capable of light duty work and qualified for some types of work. Courier v. Industrial Comm'n, 282 Ill. App. 3d 1, 668 N.E.2d 28, 217 Ill. Dec. 843 (5th Dist. 1996)

EXCLUSIVE REMEDY CASES - Back to Table of Contents

Voluntary Acceptance Of Payments Not A Bar - Back to WC Index
In a case of first impression, the court held an employee's estate was not barred from suing an attorney for improper advice that resulted in the loss of the common law cause of action for wrongful death of the employee where the estate applied for and accepted workers' compensation benefits after the common law action was dismissed due to the attorney's negligent advice. Plaintiff did not apply for workers' compensation benefits until after the court had decided plaintiff's lawsuit against decedent's employer was barred for failure to comply with the statute of limitations. Prior to applying for benefits, the plaintiff had merely accepted payments made voluntarily by the employer. Voluntary acceptance of payments without an affirmative act to seek those benefits will not operate as a bar to recovery of civil damages against an employer or co-employee. Wells v. Enloe, 282 Ill. App. 3d 586, 669 N.E.2d 368, 218 Ill. Dec. 425 (5th Dist. 1996)

AIDS Confidentiality Act - Back to WC Index
Alleged violations of the AIDS Confidentiality Act which occurred a number of days after plaintiff was treated for injuries related to being struck in the eye by an intravenous catheter which was followed by a prophylactic course of the drug AZT which was administered to diminish the possibility of infection by the AIDS virus were not barred by the exclusive remedy doctrine. Plaintiff was a security officer for the defendant hospital and was assisting emergency room personnel when blood from a patient who tested HIV positive came in contact with his eye. Respondent had dual capacities. It had changed from an employer providing statutorily-required medical treatment to a medical provider which owed plaintiff the same duty it owed all other patients similarly situated. They were required to provide confidentiality regarding his AIDS test. Plaintiff's claims for violations of the AIDS Confidentiality Act were not barred by the exclusive remedy doctrine. Goins v. Mercy Center for HealthCare Services, et al., 281 Ill. App. 3d 480, 667 N.E.2d 652, 217 Ill. Dec. 563 (2d Dist. 1996)

FCE Malpractice Claim - Back to WC Index
Petitioner's injury during a functional capacity evaluation at a therapy clinic was not work-related. It was a separate and distinct injury and was not sustained while the petitioner was engaged in her line of duty as an employee. Greenberg v. Orthosport, Inc., 282 Ill. App. 3d 830, 668 N.E.2d 1012, 218 Ill. Dec. 180 (1st Dist. 1996)

Filing And Voluntary Acceptance - Back to WC Index
Plaintiff's common law action was barred by the exclusive remedy doctrine where she filed a claim under the Act within weeks of her injury and accepted compensation pursuant to the Act for two years before filing the common law action. Plaintiff made a choice to proceed under the Act and her assertions of an intentional tort in the common law case were legally inconsistent with her filing for and accepting benefits under the Act. Zurowska v. Berlin Industries, Inc., 282 Ill. App. 3d 540, 667 N.E.2d 588, 217 Ill. Dec. 499 (1st Dist. 1996)

PPD CASES - Back to Table of Contents

Aggravation - Back to WC Index
An award of 10% loss of use to the man as a whole was appropriate for petitioner's lumbar strain and resultant limitations. Petitioner was a 68 year old school teacher who strained her degenerative back while attempting to move a pile of books. The doctors could not agree on what condition petitioner suffered from and what necessitated the surgery. The Commission's findings regarding nature and extent of the injury would not be disturbed. Sorenson v. Industrial Comm'n, 281 Ill. App. 3d 373, 666 N.E.2d 713, 217 Ill. Dec. 44 (1st Dist. 1996)

Fifteen Percent Award Upheld - Back to WC Index
An award of 15% permanent partial disability for coal worker's pneumoconiosis was upheld. Petitioner was a 61 year old retired coal miner who was exposed to coal dust over three decades of work. He was left with breathing difficulties that limited his activities. He was not disabled from performance of other types of employment. As a result, he did not fall into the odd lot category and had not sustained his burden of proving permanent and total disability. The court said it would affirm the Commission's decisions if there is any legal basis in the record which would sustain the decision regardless of whether the particular reasons or findings contained in the decision are correct or sound. Freeman United Coal Mining Co. v. Industrial Comm'n, 283 Ill. App. 3d 785, 670 N.E.2d 1122, 219 Ill. Dec. 234 (5th Dist. 1996)

TTD CASES - Back to Table of Contents

Ending TTD Payments - Back to WC Index
Prior to taking disability retirement, petitioner had been offered temporary light duty work. At the time of his retirement, he was working at a desk in a uniform on deceptive practices cases and receiving full benefits and working 40 hours a week. Duration of TTD is controlled by claimant's ability to work and his continuation in the healing process. He must prove not only that he did not work but that he is unable to work. There was no medical evidence in this case that the claimant could not return to light duty work, nor evidence his injury had not stabilized. The respondent's obligation for future TTD payments ended. City of Granite City v. Industrial Comm'n, 279 Ill. App. 3d 1087, 666 N.E.2d 827, 217 Ill. Dec. 158 (5th Dist. 1996)

Current Inability To Work - Back to WC Index
Jurisdictional requirements of section 19(b-1) require the petition contain a copy of a signed report by a medical practitioner relating the employee's current inability to return to work to the accident. When a petitioner is able to return to work, the benefits of expedited proceedings under section 19(b-1) are not available. It is not sufficient to claim an inability to return to a prior position. If the claimant is released to work with restrictions or limitations, this is not proof of a current inability to work. Choi v. Industrial Comm'n, No. 1-95-2233WC, 1996 WL 466707 (1st Dist., Aug. 16, 1996)

PENALTY CASES - Back to Table of Contents

Pay Amputations - Back to WC Index
An award of penalties was upheld for delay in payment of benefits for amputation. Respondents risk nothing when they begin payment for an undisputed section 8(e) injury such as amputation. If petitioner elects a different remedy, such as an 8(d)(1) award, the employer would be entitled to a credit for those amounts paid. Modern Drop Forge Corp. v. Industrial Comm'n, 284 Ill. App. 3d 259, 671 N.E.2d 753, 219 Ill. Dec. 586 (1st Dist. 1996)

Attorneys' Fee and Punitive Damages - Back to WC Index
The Commission's award of penalties for a 65-day delay in paying an award was appropriate. Petitioner's request for $48,400 in attorneys' fees based upon a $200-per-hour rate plus a multiplier for work he claimed was unique, significant and a vindication of the Act was rejected. The Act's general intent is to limit fees to no more than 20% of the award. They rejected petitioner's attorney's efforts to obtain a "punitive award in the form of attorney's fees." The purpose of the Act is to provide relief to a petitioner, not to provide a method whereby claimant's attorneys can obtain increased fees. Stephens v. Industrial Comm'n, 284 Ill. App. 3d 269, 671 N.E.2d 763, 219 Ill. Dec. 596 (1st Dist. 1996)

DEATH CASES - Back to Table of Contents

No Dependents Award Abates - Back to WC Index
Death awards to workers leaving no dependents are abated upon claimant's death. Section 7 provides death benefits only to dependents. It would be illogical for the legislature to have provided that only dependents of employees who die as a result of work-related accidents may make a claim for death benefits, but that non-dependent heirs of employees who die of unrelated causes may collect an accrued award. Giles v. Industrial Comm'n, No.  -95-0474WC, 1996 WL 566186 (5th Dist., Oct. 4, 1996)

MISCELLANEOUS CASES

Two Doctor Rule - Back to Table of Contents - Back to WC Index
Claimants may be allowed to choose which physicians were first and second choices by controlling which bills are submitted for reimbursement. Where there is evidence of doctor shopping, the court may enforce the two doctor limitation. The reasonable and necessary requirement of section 8(a) provides a limiting mechanism on the employer's liability for any medical treatment incurred as a result of doctor shopping. Courier v. Industrial Comm'n, 282 Ill. App. 3d 1, 668 N.E.2d 28, 217 Ill. Dec. 843 (5th Dist. 1996)

Medical Evidence - Back to Table of Contents - Back to WC Index
The Industrial Commission is not required as a matter of law to give more weight to a treating physician's testimony than that of an examining physician, although on numerous occasions, the Commission has given more weight to a treating physician's opinion. Prairie Farms Dairy v. Industrial Comm'n, 279 Ill. App. 3d 546, 664 N.E.2d 1150, 216 Ill. Dec. 222 (5th Dist. 1996)

Fraud Recovery - Back to Table of Contents - Back to WC Index
Commission decisions are conclusive in the absence of fraud. An approved settlement stemming from back injuries allegedly received at work could be vacated since section 19(f) of the Act provides that fraud is a basis upon which a Commission decision may be reexamined. The circuit court had jurisdiction to hear the fraud claim. Roadside Auto Body, Inc. and Liberty Mutual Ins. Co. v. Scott A. Miller, ___ Ill. App. 3d ___, 673 N.E.2d 1145, 220 Ill. Dec. 724 (2d Dist. 1996)

Attorneys' Fees - Back to Table of Contents - Back to WC Index
While section 16 confers upon the Commission the power to resolve all disputes and issues regarding attorneys' fees, the Commission lacked jurisdiction to reopen an award and apportion fees. No petition was filed to correct the Commission's decision pursuant to section 19(f) nor was any timely proceeding for review filed under the Act. Beverly Hoshor and Patricia L. Hayes v. Industrial Comm'n, 283 Ill. App. 3d 295, 671 N.E.2d 347, 219 Ill. Dec. 433 (3d Dist. 1996)

Section 19(h) Petition - Back to Table of Contents - Back to WC Index
The Commission properly dismissed a section 19(h) petition since it lacked subject matter jurisdiction because the 19(h) petition was not filed within the required 30-month period. Eschbaugh v. Industrial Comm'n, No. 5-96-0071WC, 1996 WL 748235 (5th Dist., Dec. 30, 1996)

Marital Property - Back to Table of Contents - Back to WC Index
The Supreme Court held that workers' compensation awards constitute marital property where the claim accrued during the marriage. In re Marriage of John G. DeRossett and Cynthia L. DeRossett, 173 Ill. 2d 416, 671 N.E.2d 654, 219 Ill. Dec. 487 (1996)

Coverage - Back to Table of Contents - Back to WC Index
A workers' compensation carrier was not liable for benefits under the Illinois Workers' Compensation Act where the policy issued by the insurer only provided coverage for claims under the workers' compensation laws of California. Ohio Casualty Ins. Co. v. Mitchell Southwell, ___ Ill. App. 3d ___, 673 N.E.2d 404, 220 Ill. Dec. 492 (1st Dist. 1996)

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