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

Compensable Sexual Assault - Back to WC Index
Petitioner's psychiatric injuries resulting from five acts of nonconsensual sexual intercourse between the claimant and her supervisor were deemed physical assaults and compensable. These acts of nonconsensual sexual assault involved physical trauma. It was appropriate for the Commission to characterize claimant's injuries as "physical-mental" trauma as opposed to "mental-mental" trauma. This case presented a question of first impression. The court was convinced that physical contact explicit in nonconsensual sexual intercourse is sufficient to meet the requirements of physical contact necessary for the "physical-mental" trauma theory of recovery. Petitioner was properly awarded benefits for post-traumatic stress disorder based upon her unrebutted testimony regarding repeated sexual assaults against her by her supervisor over a five month period. The City of Springfield v. Industrial Comm'n, No. 4-95-0926WC, 1997 WL 362795 (4th Dist., June 30, 1997).

SUBROGATION/LIEN CASES - Back to Table of Contents

No Liens Against UM Recovery - Back to WC Index
An employer may not assert a workers' compensation lien against proceeds of a claim under an employer-paid underinsured motorist's insurance policy. Section 5(b) refers to liability in tort; not contractual liability. An employer is not entitled to assert its workers' compensation lien because the Act allows such liens to attach only to actions in tort. Terry v. State Farm Mutual Automobile Ins. Co., 287 Ill. App. 3d 8, 677 N.E.2d 1019, 222 Ill. Dec. 485 (2d Dist. 1997).

CAUSATION CASES - Back to Table of Contents

Ambiguous Opinion Fails - Back to WC Index
An Illinois Industrial Commission finding of causation was reversed where the treating physician's initial opinion, which was favorable on causation became ambiguous as he was presented with petitioner's lengthy history of back problems prior to the work incident. Petitioner failed to establish the causal relationship between the accident and his condition of ill being which necessitated surgery when his treating physician's opinion became ambiguous at best. The court concluded that Dr. Harms did not render an opinion on causation, but merely stated "It was impossible to say either way". Such ambiguous testimony is not sufficient for petitioner to carry his burden of proof. Village of Oreana v. Industrial Comm'n, No. 4-96-0202WC, 1997 WL 362787 (4th Dist., June 30, 1997).

TTD CASES - Back to Table of Contents

TTD Termination/Failure To Cooperate - Back to WC Index
A Commission award ending TTD because petitioner failed to reasonably cooperate with rehabilitation was upheld. Petitioner failed to take steps to obtain his GED, failed to visit the library to research vocational opportunities despite directions to do both and gave no indication he was interested in vocational rehabilitation services. He forced an interview to be rescheduled because he was not given 48 hours notice. When he eventually appeared for the interview, he was unshaven, dirty, and failed to dress properly despite instructions on how to dress and appear. The Commission could reasonably conclude petitioner was malingering and not sincere in his efforts at rehabilitation. Termination of TTD benefits was proper. Stone v. Industrial Comm'n, 286 Ill. App. 3d 174, 675 N.E.2d 280, 221 Ill. Dec. 373 (2d Dist. 1997).

Ability to Work - Back to WC Index
Petitioner's employer was properly awarded a credit for all TTD paid during a 3-year period when petitioner earned income selling real estate. Petitioner was disabled from a knee injury which occurred during his employment as a "keg helper" for a beer distributor. He was unable to continue in that work for 86 5/7 weeks. While collecting TTD, he worked consistently and regularly in a stable competitive labor market as a real estate sales person earning between $22,000 and $36,000 a year. The court rejected petitioner's contention that real estate sales did not bar his TTD benefits because the sales were merely occasional income. Petitioner was required to prove that he not only did not work but that he was unable to work. The test for whether a person may receive TTD benefits is whether that person is unable to work in a stable labor market. The evidence showed he worked and competed successfully with other brokers selling houses and collecting TTD. The employer's credit was proper. Dolce v. Industrial Comm'n, 286 Ill. App. 3d 117, 675 N.E.2d 175, 221 Ill. Dec. 268 (1st Dist. 1996).

EMPLOYER/EMPLOYEE RELATIONSHIP CASES - Back to Table of Contents

Extra Hazardous Coverage - Back to WC Index
A trucking employer must pay premiums for its employees and the outside haulers who were independent contractors because their work was extra hazardous by nature. The nature of this activity requires automatic workers’ compensation coverage of all persons engaged in the activity. Pursuant to section 3 of the Act, a trucking employer has liability under the Act for injuries to outside haulers who are independent contractors. As a result, the trucking company was liable under its policy to the compensation insurer for premiums to cover the outside haulers. Wausau General Ins. Co. v. Kim’s Trucking Inc., No. 1-96-2070, 1997 WL 342184 (1st Dist., June 20, 1997).

Right To Control - Back to WC Index
Petitioner's job as an unlicensed private duty nurse at respondent's nursing home contained both elements of an independent contractor and an employee relationship. Respondent controlled petitioner's activities and the method and manner in which she performed her duties. The entire scope of her work was controlled by respondent. All necessary equipment to perform her duties was provided by respondent. The head nurse gave petitioner regular instructions pertaining to the care and condition of her patients. She was supervised for more complex tasks necessary for patient care and instructed to provide a verbal report to the nurse in charge whenever she left duty. Respondent retained the right to discharge claimant for any violations of its rules, regulations, or unprofessional conduct. Furthermore, claimant’s work was directly related to respondent's business. These factors established an employer/employee relationship. As an employee, petitioner was entitled to workers' compensation benefits for her injuries. Netzel v. Industrial Comm'n, 286 Ill. App. 3d 550, 676 N.E.2d 270, 221 Ill. Dec. 749 (1st Dist. 1997).

PENALTY CASES - Back to Table of Contents

Frivolous Appeal - Back to WC Index
The Industrial Commission does not have authority to determine whether an appeal to the circuit court is frivolous or made for the purposes of delay and if so to award penalties and costs. Section 16 and 19(k) of the Act do not authorize the Commission to award penalties for vexatious delay when that delay is based on taking an alleged frivolous appeal to the circuit court. The Commission does not have such power. A petitioner must seek such relief pursuant to Supreme Court Rule 137. Commission powers do not include consideration of pleadings in the circuit court. Krantz v. Industrial Comm'n, No. 5-96-0228WC, 1997 WL 368044 (5th Dist., June 30, 1997).

Coverage Disputes: No Basis For Nonpayment - Back to WC Index
A coverage dispute which arises because of an employer's failure to comply with its policy provisions regarding reporting even small accidents is no basis for refusing to pay for petitioner's injuries. The employer’s policy to take care of small workers' compensation claims internally and not submit those reports to the insurance company provided a basis for the carrier to challenge coverage for the accident because the employer did not comply with its policy provisions. As a result, petitioner did not receive payment of medical bills and other benefits under the Act. Coverage disputes are not a legitimate basis for nonpayment of compensation to a petitioner. The reason petitioner was not paid was due to the employer's own actions which delayed reporting of the incident to the insurance company. Their conduct alone created the need for this litigation and justified the award of additional penalties under section 19(k) as well as attorney's fees. Such coverage disputes are the responsibility of the employer and arise from the employer's own conduct. Penalties will be awarded when a petitioner bears the burden of nonpayment due to such coverage issues. McMahan v. Industrial Comm'n, No. 4-96-0272WC, 1997 WL 306747 (4th Dist., June 6, 1997).

EVIDENCE CASES - Back to Table of Contents

Conflicting Opinions - Back to WC Index
Where there is conflicting medical evidence and opinion as to whether the petitioner who worked in the coal mine industry for 25 years actually had pneumoconiosis or not, the Industrial Commission's decision setting aside the arbitrator's award and finding the claimant did not have pneumoconiosis is not against the manifest weight of the evidence. The appellate court is reluctant to reverse where the Commission chose to rely on the opinions of Dr. Tuteur and Dr. Sugar who found claimant did not have coal worker's pneumoconiosis or at least significant pneumoconiosis. The Commission found that any pulmonary impairment that existed was caused by smoking one-half pack of cigarettes per day for 50 years. Freeman United Coal Mining Co. v. Industrial Comm'n, 286 Ill. App. 3d 1098, 677 N.E.2d 1005, 222 Ill. Dec. 471 (5th Dist. 1997).

Sole Medical Opinion - Back to WC Index
Evidence in this record was sufficient to support the Commission's decision finding a causal connection between petitioner's right shoulder condition and the accident of June 6, 1992. Dr. Coe's opinion was the only opinion in the record regarding causation, but his opinions were inconsistent and ambiguous. An inference could be drawn either way regarding whether causation existed between the right shoulder condition and the accident in June. There was nothing in the record to show that he suffered from problems with the right shoulder. This evidence combined with Dr. Coe's opinion was sufficient for the Commission to infer and find a causal connection between the right shoulder condition and the accident. While petitioner failed to provide credible expert testimony as to causation, the employer failed to establish that the award of 25% loss of use of the right arm was against the manifest weight of the evidence since petitioner's testimony was unrebutted and respondent offered no expert opinion against causation. Kraft General Foods v. Industrial Comm'n, 287 Ill. App. 3d 526, 678 N.E.2d 1250, 223 Ill. Dec. 119 (2d Dist. 1997).

RETALIATORY DISCHARGE CASES - Back to Table of Contents

Inability To Perform Job Duties - Back to WC Index
Petitioner's retaliatory discharge action for violation of section 4(h) of the Workers' Compensation Act based upon a refusal to recall or rehire could not prevail since the petitioner refused to return to work as a roof bolter without restrictions. He chose to rely upon his physician's restrictions. Petitioner repeatedly admitted that he could not perform all of the job duties of a roof bolter within the restrictions of Dr. Wilkinson. Under Illinois law, an employer need not retain an at-will employee who's medically unable to return to his assigned position. An employer is not obligated to assign such an employee to another position rather than terminate the employment. If petitioner's treating doctor's restrictions are valid, petitioner could no longer perform his job and under Illinois law, this inability to perform the job is a valid, nonpretexual reason to terminate him and to not recall as an employee. Cochrum v. Old Ben Coal Co., 287 Ill. App. 3d 219, 678 N.E.2d 1093, 223 Ill. Dec. 85 (5th Dist. 1997).

CONTRIBUTION AND KOTECKI CASES - Back to Table of Contents

Co-Employee Bar To Contribution - Back to WC Index
The Illinois Supreme Court held the co-employee immunity bar prevails over the right to contribution. Where co-employee immunity under the Workers' Compensation Act would bar a direct suit against the co-employee it will also bar a third-party contribution action against the co-employee. Plaintiff Ramsey was a passenger in Ricky Baker's truck. He sustained a broken jaw as a result of a collision. Both the plaintiff and Baker were co-employees of the third-party defendant. The defendant driver, Morrison, filed a third-party complaint for contribution against Ricky Baker. The co-employee immunity is a fundamental and important facet of the workers' compensation system which must prevail over the third-party's right to contribution. The central purpose of the workers' compensation system is to place the cost of employee injuries on the industry. To allow contribution from a co-employee would entirely defeat the effect of the immunity granted to co-employees and defeat the central purpose of the Workers' Compensation Act. Contribution from a co-employee would allow the cost of employee injuries to be placed on the co-employee and force them to subsidize the employer's payment of workers' compensation benefits. The Court's holding keeps the cost of workplace injuries on the industry and employers rather than co-employees. Ramsey v. Morrison, 175 Ill. 2d 218, 676 N.E.2d 1304, 222 Ill. Dec. 100 (1997)

Waiver Of Kotecki - Back to WC Index
The Illinois Supreme Court held Illinois law and public policy do not prohibit enforcement of a contract where an employer agrees to remain liable to an injured employee for the full amount of damages attributable to the employer's negligence without regard to the Kotecki liability cap. Such a liability cap on an employer's contribution liability in a third-party action may be relinquished by contract. An employer can voluntarily decide to forego the protection of the Act by virtue of a promise made in a contract. Nothing in the Kotecki decision prohibits an employer from agreeing to remain liable for its pro rata share of damages caused by its negligence notwithstanding the employer's ability to avail itself of the Kotecki cap. Braye v. Acher-Daniels-Midland Co., 175 Ill. 2d 201, 676 N.E.2d 1295, 222 Ill. Dec. 91 (1997)

No Kotecki Cap - Back to WC Index
The Kotecki liability cap does not apply to a public employer providing benefits under the Pension Code. Petitioner was a Chicago fireman who lost his life in a training exercise. The manufacturers and distributors of the training device were sued and they brought a third-party claim for contribution against the employer. The manufacturers were allowed to seek unlimited contribution. The court saw no reason for reading into the Pension Code and the Contribution Act any limitation on the city's liability when being sued as a third-party defendant under the Contribution Act in a case where the city employee suffered a fatal injury. McNamee v. Federated Equipment & Supply Co., 286 Ill. App. 3d 806, 677 N.E.2d 8, 222 Ill. Dec. 195 (1st Dist. 1997)

MISCELLANEOUS CASES

Waiver Of Benefits - Back to Table of Contents - Back to WC Index
A contract between an employer and an employee which terminates the employment relationship and provides for payment of sick leave benefits in exchange for waiver of a workers' compensation claim is not against public policy. The Villiage of Oak Park v. Schwerdtner, No. 1-96-1783, 1997 WL 251294 (1st Dist., May 14, 1997)

Jurisdiction - Back to Table of Contents - Back to WC Index
The trial court has jurisdiction to interpret provisions in a settlement contract relating to workers' compensation claims. It has jurisdiction over contract matters ancillary to disputes arising under the Act. Emery Worldwide Freight Corp. v. Snell, No. 1-96-2887, 1997 WL 280462 (1st Dist., May 27, 1997)

Paternity - Back to Table of Contents - Back to WC Index
A petition for death benefits on behalf of an heir of the decedent may continue even though the decedent died before paternity proceedings to establish him as the father were completed. The probate division of the circuit court had declared a son of the administrator of the decedent's estate as decedent's sole heir. The trial court properly refused to enjoin proceedings before the Commission on claimant's behalf since section 9 of the Paternity Act of 1984 contemplates a paternity action surviving the death of a putative father. In re Estate of Robert Lee Medlen, 286 Ill. App. 3d 860, 677 N.E.2d 33, 222 Ill. Dec. 220 (2d Dist. 1997)

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