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

Stray Dog Assault - Back to WC Index
Petitioner's injuries resulting from an attack by a stray dog while making rounds as a security guard at 4:40 a.m. arose out of and in the course of petitioner's work. This claimant was exposed to a risk greater than that of the general public. Petitioner was where the general public would not and should not be. Since the incident occurred at 4:40 a.m. on school grounds at a time when claimant was to protect the property against intruders, his confrontation with the dog occurred while he was in the performance of his watch duties, and the injuries resulted from his performance of tasks in protecting both the school grounds and himself. His injuries were compensable. The Springfield School Dist. No. 186 v. Industrial Comm'n, 293 Ill. App. 3d 226, 687 N.E.2d 334, 227 Ill. Dec. 260 (4th Dist. 1997).

Payment Of Prospective Medical Expenses - Back to WC Index
Medical expenses under section 8(a) have been "incurred" under the statute when the specific medical procedures or treatments have been prescribed by a medical service provider. The term "incurred" as used in the statute refers to the necessity of the medical treatment or procedure not the costs. The court refused to limit the scope of section 8(a) to paid for treatments.Plantation Manufacturing Co. v. Industrial Comm'n, 294 Ill. App. 3d 705, 691 N.E.2d 13, 229 Ill. Dec. 77 (2d Dist. 1997).

Settlement Contracts And General Release Provisions - Back to WC Index
Settlement contract language releasing all claims incurred through the date of the agreement would not release an accident date which the employer knew about but which accident date was not included on the contract. The employer tried to bar pursuit of that claim relying upon the general release of all accident claims through the date of settlement. A contract, which lists three distinct accident dates but fails to identify a back claim of August 15, 1991, does not relieve that date. Specific provisions of a release override general provisions. Where multiple injuries and accidents exist, each and every accident date and description should be included on the contract. Countryman v. Industrial Comm'n, 292 Ill. App. 3d 738, 686 N.E.2d 61, 226 Ill. Dec. 712 (2d Dist. 1997).

CONTRIBUTION AND KOTECKI CASES - Back to Table of Contents

Kotecki And The Pension Code - Back to WC Index
A public employer's third-party contribution liability is limited pursuant to Kotecki to the amount of benefits paid to an injured firefighter under the Illinois Pension Code. Differences in the lien rights of section 5(b) of the Workers' Compensation Act and Pension Code 22-308 did not preclude an application of Kotecki to article XXII, division 3 of the Pension Code. Kotecki was not based on the reasonableness of the employer's lien or the determination of any particular amount of compensation. It focused on the underlying purpose of the Workers' Compensation scheme, which is in part to limit an employer's liability to what it is already paying in benefits under a no-fault system. Note: This decision reversed the appellate court’s opinion cited in our Summer, 1997 issue. McNamee v. Federated Equipment & Supply Co., Inc., Docket No. 82954, 1998 WL 66727 (Ill., Feb. 20, 1998).

Kotecki Waived By Contract Again - Back to WC Index
This decision reaffirmed the Court's interpretation of parties' contract language establishing a waiver of the Kotecki cap can be waived by contract. The contract in Liccardi contained an agreement to indemnify and hold harmless from all lawsuits. Liccardi v. Stolt Terminals, (Chicago), Inc., 178 Ill. 2d 540, 687 N.E.2d 968, 227 Ill. Dec. 486 (1997).

EXCLUSIVE REMEDY - Back to Table of Contents

Exclusive Remedy Applies To A UM Claim - Back to WC Index
The claimant received all of his workers' compensation benefits from an injury while riding in a van owned by his employer and driven by a co-employee. His pursuit of uninsured motorist benefits under the auto policy was barred since the co-employee was immune from suit under the Workers' Compensation Act. The employer's insurance carrier stood in the shoes of both the driver and the owner of the uninsured motor vehicle. Petitioner received compensation benefits and was barred from bringing a civil action for the same injuries against the co-employee, employer and insurer. Atlantic Mutual Ins. Co. v. Phallon Payton, 289 Ill. App. 3d 866, 682 N.E.2d 1144, 225 Ill. Dec. 67 (1st Dist. 1997), appeal denied, 174 Ill. 2d 554, 686 N.E.2d 1157, 227 Ill. Dec. 1 (1997).

LIEN CASES - Back to Table of Contents

Lien Recovery And Medical Malpractice - Back to WC Index
An employer can assert its section 5(b) lien for workers' compensation benefits paid to a petitioner to prevent a double recovery where petitioner's workplace injury as exacerbated by alleged medical malpractice. Before the employer knew of plaintiff's malpractice claims, it agreed to pay medical, TTD, and permanency as required by section 8 of the Act. Shortly after the settlement, plaintiffs filed an action seeking medical, temporary total disability, and permanent partial disability caused by the malpractice. A distinct possibility exists that the employer already paid compensation benefits to the petitioner for damages that actually arose from the doctor's alleged malpractice. The employer paid compensation for an injury (negligent treatment) caused under circumstances creating a legal liability for damages on the part of the doctor. The court did not want to penalize the employer for settling petitioner's workers' compensation claim before it became aware of the doctor’s alleged negligence. The employer was entitled to assert its workers' compensation lien. Kozak v. Moiduddin and Rembos, 294 Ill. App. 3d 365, 689 N.E.2d 217, 228 Ill. Dec. 345 (1st Dist. 1997).

Liens And Legal Malpractice - Back to WC Index
An employer's section 5(b) lien does not attach to proceeds of an employee's pending legal malpractice action to recover damages from an attorney for failing to timely institute an action against a third-party tortfeasor responsible for the work injury. Woodward v. Pratt, Bradford & Tobin, P.C., 291 Ill. App. 3d 807, 684 N.E.2d 1028, 226 Ill. Dec. 32 (5th Dist. 1997), appeal denied, 175 Ill. 2d 556, 689 N.E.2d 1147, 228 Ill. Dec. 726 (1997).

Setoff Rules For Lien Waivers - Back to WC Index
Statutory attorneys' fees and costs under section 5(b) of the Act are only recoverable from any reimbursement that the plaintiff’s employer receives. A plaintiff is not entitled to reduce any setoff awarded or otherwise shift the burden of 5(b) payments to a defendant when a plaintiff employer waives its right to reimbursement under the Act. Plaintiffs are not entitled to produce setoffs awarded to a defendant by the amount of the statutory attorneys' fees and costs given the lien waiver. This section is inapplicable where the plaintiff employer has received no reimbursement of its statutory workers' compensation lien because of a waiver. The statutory workers' compensation employer must first recover for the setoff to apply. Branum v. Slezak Construction Co., Inc., 289 Ill. App. 3d 948, 682 N.E.2d 1165, 225 Ill. Dec. 88 (1st Dist. 1997), appeal dismissed, 175 Ill. 2d 523, 688 N.E.2d 1153, 228 Ill. Dec. 176 (1997).

Lien Enforcement - Back to WC Index
The Industrial Commission did not have jurisdiction to enforce the lien. The court found no statutory provision authorizing the Industrial Commission to enforce a lien. Section 5 of the Act allows enforcement of the lien in the circuit court where third-party actions pend. Section 5 does not reference the Commission enforcing liens. Scott v. Industrial Comm'n, 292 Ill. App. 3d 290, 686 N.E.2d 609, 226 Ill. Dec. 826 (2d Dist. 1997).

HERNIA CASES - Back to Table of Contents- Back to WC Index

An award of 7½ percent of a man pursuant to section 8(d)2 of the Act for claimant's hernia was upheld despite petitioner's release to return to work without restrictions. Evidence established petitioner had repeatedly complained to his doctor of pain and pulling on both sides of his groin following surgery. The employer had provided light duty from the time of his return until his retirement. Other employees assisted the petitioner with required lifting. This evidence was sufficient to support the Commission’s 7½ percent award.  Caterpillar, Inc. v. Industrial Comm'n, No. 3-97-0487 (3d Dist., February 6, 1998).

COVERAGE CASES - Back to Table of Contents- Back to WC Index

An insurer's complaint for declaratory judgment on a coverage issue was properly dismissed where that issue had been properly before the Industrial Commission.  Following trial of the workers' compensation case, the employer's insurer filed a declaratory action claiming it had no liability because of cancellation of the policy for nonpayment of premium. The insurer had appeared before the arbitrator and failed to establish the alleged cancellation had met the procedural requirements under the Workers' Compensation Act. The court properly dismissed the complaint for declaratory judgment. Casualty Ins. Co. v. Kendall Enterprises, Inc., ___ Ill. App. 3d ___, 692 N.E.2d 752, 229 Ill. Dec. 763 (1st Dist. 1998)

RETALIATORY DISCHARGE - Back to Table of Contents- Back to WC Index

The Supreme Court held a plaintiff may not bring a retaliatory discharge action against an employee or agent who on behalf of the plaintiff's former employer discharged the plaintiff. The limited tort of retaliatory discharge recognized in Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353, 23 Ill. Dec. 559 (1978), will not be expanded to allow claims against such parties. The only proper defendant in a retaliatory discharge action is plaintiff's former employer. Buckner v. Atlantic Plant Maintenance, Inc., No. 83321 (Ill., April 16, 1998).

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