WCLA Case Law Summaries


  • 06/26/2020 10:16 AM | Judy Pfeiffer (Administrator)

    I.          Status of Employment

    Larson v. Quad City Skydiving Center, 28 ILWCLB 56 (Ill. W.C. Comm. 2020).

    The Petitioner was a pilot flying for the Respondent’s skydiving operations.  The flight hours she logged while working for Respondent went towards her license for her airline transit pilot certificate, which is required for her to become a commercial pilot.  While flying with the Respondent, the Petitioner crashed a plane during a landing attempt.  The Petitioner did not receive, nor did she expect to receive any money.  There was no employment contract and the Petitioner agreed to be an unpaid pilot while flying for Respondent.  A representative for the Respondent testified that no pilots were paid in the past and the Respondent did not have workers’ compensation insurance as they had no employees.  Various pilots testified on behalf of the Respondent that they all flew voluntarily for the Respondent and never received payment from the Respondent. 

    The Arbitrator found Petitioner established that an employee-employer relationship existed between her and the employer.  The Commission reversed the Arbitrator’s decision and denied benefits to the Petitioner. The Commission found the Petitioner failed to prove an employer-employee relationship with Respondent.  The Commission compared the pilot Petitioner to the volunteer teacher petitioner in Board of Education v. Industrial Commission [cite], where the Supreme Court found that a college student volunteering at a public school in order to obtain hours for her graduation requirement was not an employee.  Both the Petitioner and the college student had no expectation of payment and had no expectation that the fact that the Petitioner was volunteering at the school would lead to any future gainful employment with the Respondent.  The Commission found there was no consideration, payment, or other compensation in exchange for the Petitioner volunteering to fly the Respondent’s plane. 

    Commissioner Tyrell dissented and adopted the opinion of the Arbitrator that there was an employer-employee relationship.  He opined the facts distinguished the Petitioner from the claimant in Board of Education v. Industrial Commission as the school still employed full-time teachers, while the Respondent in the instant case did not employ full-time pilots and relied solely on volunteer pilots. 

    II.        Arising Out of Employment

    Martin v. AT&T, 28 ILWCLB 57 (Ill. W.C. Comm. 2020).

    The Petitioner alleged she sustained an accident that arose out of and in the course of her employment when she tripped on the Respondent’s stairwell as she was returning to work to retrieve her cell phone.

    The Arbitrator initially found that the Petitioner did not sustain an accident that arose out of and in the course of her employment.  The decision  was affirmed by the Commission and the Circuit Court.  The Appellate Court reversed the Circuit Court’s order, vacated the Commission’s decision, and remanded the matter back to the Commission for further consideration. The Appellate Court ruled the Petitioner’s accident was in the course of her employment since the incident occurred on the employer’s premises within a reasonable time before and after work. The Appellate Court then turned to whether the accident “arose out of” her employment.  It analyzed  the categories of risk.  The Appellate Court rejected that the accident should be analyzed as a neutral risk.  The Court found that the matter should be assessed as an employment related risk.  The Appellate Court highlighted that the Arbitrator and Commission’s decisions addressed that the stair was missing a piece of strip tread, but the Commission failed to explain the significance of the missing tread. 

    The case appeared before the Commission on remand from the Appellate Court to allow the Commission to determine whether the defect in the step contributed to Petitioner’s fall. The Commission concluded the condition of the stair was defective and contributed to the Petitioner’s accident. It further concluded the injury arose out of and in the course of the Petitioner’s employment.  The Petitioner’s testimony indicated her boot caught on a safety strip that had rolled up.  The Petitioner’s supervisor testified that she did not think the stairs were defective enough to cause someone to fall.  However,  the supervisor did not inspect the area until after maintenance had been performed. 

    McArthur v. Kohl’s Department Stores, 28 ILWCLB 58 (Ill. W.C. Comm. 2020).

    The Petitioner worked as a sales associate in the shoe department of a department store.  On the date of accident, the Petitioner was taking a break in the designated break room.  She retrieved her cell phone from her purse and when sitting down in a break room chair, the chair slid out from under her causing her to land on her left side.  The Petitioner testified the chair landed on her.  She finished her work day and then sought treatment for her neck, back, and left side of her body.

    The Arbitrator found the Petitioner did not sustain an accident that arose out of and in the course of her employment.  The Arbitrator acknowledged the personal comfort doctrine and found that  the Petitioner satisfied the “in the course of” prong, but found the Petitioner did not prove the incident arose out of her employment since she did not testify there was any moisture or debris around the chair and there was no evidence the chair was broken or defective. The Petitioner was also retrieving her personal cell phone from her purse to check her personal messages.  The Arbitrator noted that Petitioner was not retrieving a work phone.  The Arbitrator found the Petitioner misjudged the location of her seat and the chair shifted as she tried to sit on it.  The Arbitrator identified additional cases in which injuries under the personal comfort doctrine were deemed compensable when the environment the employer controls or provided caused the Petitioner to be exposed to additional hazards they would not otherwise be exposed to.   The Arbitrator found it significant that the act of misjudging a seat of a chair is not a unique hazard of employment but rather a happenstance personal to the Petitioner.  The Commission affirmed the Arbitrator’s decision and corrected a scrivener’s error.

    III.       Accidental Injury

    Stout v. Gerresheimer Glass, 28 ILWCLB 59 (Ill. W.C. Comm. 2020).

    The Petitioner was a millwright.  He had been working as a millwright since 1991. He testified that his position required him to perform work above shoulder level 90% of the time.  He also provided what he thought to be an accurate description of his job duties.  Petitioner sustained a prior right shoulder dislocation with another employer in 1996.  The prior injury required surgeries. He sustained another injury to the right shoulder with the Respondent in 2002 but did not file a claim..  Petitioner reported pain to his right shoulder on September 1, 2017 and underwent arthroscopic surgery to the right shoulder on November 16, 2017.  He claimed at the time of his surgery, that he discussed his job duties with his physician.  Further,  the Petitioner believed that his right shoulder condition was related to his duties at work.  The Petitioner texted HR and stated that he  wanted to file a claim on November 16, 2017.  He alleged that the injury arose out of the repetitive use of his shoulder. The Petitioner later returned to work and eventually underwent a total shoulder replacement in February 2018.  The Petitioner returned to work without restrictions in October 2018.  

    The Arbitrator found that Petitioner did not meet his burden of proving accident and causation. The Arbitrator noted the job description for the Petitioner did not include repetitive activities and did not specify that the Petitioner lifted on a continued or repetitive basis.  He noted the Petitioner’s treating physician did not opine there was any correlation between the Petitioner’s job duties and his shoulder condition.  Further, the physician attested in the Petitioner’s disability paperwork that the shoulder condition was not related to work.  The Arbitrator found the opinions of the IME physician more persuasive than that of the treating physician.

    The Commission reversed the Arbitrator’s decision and found the Petitioner sustained a compensable accident and found causal connection between the accident and his condition of ill-being.  The Commission found the Petitioner established that most of his work was performed above the shoulder level for many years and that the IME physician relied on an inaccurate job description in forming his opinions.  The Commission found the opinions of the treating physician was more credible and that the treating physician had a more complete understanding of the Petitioner’s job duties. The Commission agreed with the treating physician that the Petitioner’s repetitive work placed continuous stress on his shoulder, which accelerated his arthritis and the need for a shoulder replacement.

    IV.       Causal Relationship

    Burkey v. Carle Foundation Hospital, 28 ILWCLB 60 (Ill. W.C. Comm. 2020).

    The Petitioner worked as a floor maintenance man.  He testified that on February 13, 2017, his left ankle caught on the elevator floor and he fell onto his knees.  He was later diagnosed with tendinosis and a longitudinal tear of the left ankle and foot. The Petitioner was also diagnosed with congenital conditions to the left ankle.  He was not aware of the congenital condition. His treating physician recommended the Petitioner undergo left foot and ankle procedures to repair the tendon and to correct the congenital deformities.  The Respondent’s IME diagnosed the Petitioner with pre-existing conditions and indicated such were not related to his work injury.

    The Arbitrator found the Petitioner’s condition of ill-being was not causally related to the work accident.  The Arbitrator found the IME physician’s causation opinion was more persuasive than the treating physician. The Commission reversed the Arbitrator’s decision and remanded the case for further proceedings regarding temporary total compensation or permanent disability. The Commission opined the Petitioner’s pre-existing conditions were asymptomatic prior to his accident and the congenital deformities needed to be corrected along with the Petitioner’s tendon repair to increase the likelihood that a tendon repair would not fail.  The Commission relied on the opinions of the treating physician.

    Wyse v. Lakeshore Recycling Systems, 28 ILWCLB 61 (Ill. W.C. Comm. 2019).

    The Petitioner was employed as a roll-off truck driver for Respondent for 13 years.  On June 8, 2016, the Petitioner twisted his body while pulling a tarp over a metal stud and fell to the ground landing on concrete and grass.  He reported a popping in his right knee and was subsequently diagnosed with a meniscal tear. He also had preexisting issues and treatment for right knee arthritis.  The Petitioner underwent right knee arthroscopy and partial medial meniscectomy.  Petitioner’s treating physician recommended that Petitioner undergo a right knee replacement 

    The Arbitrator found that Petitioner sustained an accidental injury arising out of and in the course of his employment and that his right knee condition was causally connected to the work-related accident.  The Commission affirmed the Arbitrator’s decision.  The Commission found the Petitioner’s treating physician had ample opportunities to examine the Petitioner and evaluate his condition.  However,  the IME physician only examined the Petitioner once and was unaware of the twisting mechanism of accident and the surface areas involved in the accident.  The Commission opined the treating physician had more complete information relating to the Petitioner’s mechanism of injury and ongoing condition than the IME physician. The Commission affirmed the Arbitrator’s award of future treatment for a total knee replacement. The Commission also found the Petitioner credible and that his off-work activities (participating in a 5K, deep see fishing, falling from a bicycle, hiking, and walking) did not affect his credibility or causal connection.

    V.        Permanent Disability Benefits

    Bukala v. City of Joliet, 28 ILWCLB 62 (Ill. W.C. Comm. 2020).

    The Petitioner was a patrol officer for the City of Joliet. He sustained a fracture to the left distal tibia during a fall he sustained while chasing a suspect on August 18, 2016.  He underwent an open reduction and internal fixation of the distal fibular fracture.

    The Arbitrator found that Petitioner was permanently and partially disabled to the extent of  32.5% loss of use of the left leg.  The Commission modified the Petitioner’s award.  The Commission cited the Illinois Supreme Court in Eagle Discount Supermarket v. Industrial Comm., where the Court determined a distal fibula fracture is classified as a part of the foot when determining permanency.  The Commission found the Petitioner was permanently and partially disabled to the extent of 25% loss of use of the left foot.  The Commission relied on the testimony of the Petitioner that he had not sought treatment for two years prior to trial and he was capable of working full duty without difficulty.

    Hawkins v. Village of Beecher, 28 ILWCLB 63 (Ill. W.C. Comm. 2020).

    Petitioner was employed as a part-time police officer with the Respondent. She sustained injuries on February 22, 2014 to her left shoulder, back, and right hip while restraining an individual.  Petitioner underwent conservative treatment, including physical therapy and injections.  Petitioner was later able to return to work as a police officer on a full-time basis.

    The Arbitrator found that the Petitioner was permanently and partially disabled to the extent of 15% loss of use of the right leg  and 7.5% loss of use of the person as a whole.  The Commission modified the Arbitrator’s permanency award of 7.5% loss of use of the person as a whole and found the Petitioner entitled to 3% loss of use of the person as a whole.  The Commission adopted the Arbitrator's Section 8.1(b) analysis , but found the evidence supported a reduction in permanency due to the minor nature of the injury.  The Commission relied on the fact that Petitioner was diagnosed with a low back and right shoulder strain.

    VI.       Medical & Rehabilitation Benefits

    Adams v. City of Carbondale, 28 ILWCLB 64 (Ill. W.C. Comm. 2019).

    The Petitioner was a solid waste collector for the City of Carbondale.  She sustained an injury to her right shoulder on April 14, 2014 from repetitive lifting.  She was diagnosed with a rotator cuff tear and underwent two arthroscopic procedures.  The case had previously been tried pursuant to a Section19(b) petition on September 17, 2015.  The Arbitrator found that Petitioner sustained a compensable accident and that the current condition of ill-being was causally connected to the work-related accident.  The Arbitrator awarded medical expenses and TTD benefits.  

    The Petitioner subsequently underwent an FCE placing her at the medium physical demand level and she was placed at MMI on November 18, 2015.  The Respondent could not accommodate her restrictions but did not terminate the Petitioner from employment. The Petitioner retained vocational services in December 2016. She also underwent a second arthroscopic surgery for her shoulder in March 2017.  The Respondent offered the Petitioner employment as a utility maintenance worker in December 2017. The Respondent disputed payment of vocational services given the Respondent offered a temporary position, which later became a permanent position to the Petitioner. On another 19(b), the Arbitrator found that the petitioner proved both a work accident and causal connection between her work accident and her right shoulder condition.  The Arbitrator awarded TTD and reasonable and related medical services.  In the petitioner’s bill exhibits included a bill for vocational rehabilitation. The Respondent appeared indicated that the decision of the Arbitrator should not have awarded the vocational rehabilitation bill and two other medical charges. 

    The Commission modified the decision of the Arbitrator. The issues on Review, included the  payment of two medical bills, a healthcare visit from May 11, 20015 and a bill for emergency department services from May 12, 2015, which the records showed were related to abdominal pain.  The Review also included a bill for vocational rehabilitation services.  The Commission found the Petitioner failed to prove that the medical treatment from May 11, 2015 and May 12, 2015 was casually related to her April 12, 2014 accident.  Regarding vocational rehabilitation, the Commission found no precedent to preclude an award of vocational rehabilitation services .  The Commission found that the circumstances were appropriate for the Petitioner to utilize vocational rehabilitation.

    VII.     Evidence

    Eppenstein v. Langlois Roofing, 28 ILWCLB 65 (Ill. W.C. Comm. 2019).

    The Petitioner was a journeyman roofer.  He alleged that he sustained an injury on August 8, 2017.  Petitioner was moving insulation materials and rolls weighing over 200 pounds when he slipped and fell.  The instant case was consolidated with another case arising out of an accident which Petitioner sustained while working for another respondent, All Sealants. 

    The Petitioner moved to admit a Fee Schedule Analysis.  Respondent objected to the admission of the Fee Schedule Analysis based on hearsay.  It also reserved any additional objection to the admission of the Analysis.   The Petitioner cited no exceptions to the hearsay rule or present a witness to lay the proper foundation for the admission of the Analysis.  The Arbitrator admitted the Petitioner’s Fee Schedule Analysis over Respondent’s objection. The Arbitrator allowed both Respondents until July 5, 2019 to submit their own fee schedule assessments.  Only All Sealants provided a fee schedule assessment.

    The Commission found the Petitioner’s Fee Schedule Analysis should not have been admitted into evidence.  The Commission noted that the document should have been excluded based on hearsay and lack of foundation.  The Commission noted that the person who prepared the Fee Schedule Analysis was not present at the hearing to testify, the Respondent had no opportunity for cross examination regarding the qualifications of the preparer, the method of calculation, or to verify the accuracy of the document.  The Commission modified the Decision of the Arbitrator to exclude the Fee Schedule Analysis and struck any references made by the Arbitrator to it.  Excluding the Fee Schedule Analysis resulted in the Commission vacating the $121,243.06 award to the Petitioner as compensation for medical expenses.  The Commission awarded medical bills pursuant to the statutory Fee Schedule.

    VIII.    Insurance Practice & Procedures

    IWCC Insurance Compliance Dept. v. Collier, 28 ILWCLB 66 (Ill. W.C. Comm. 2019).

    The Petitioner, Illinois Workers’ Compensation Commission and Insurance Compliance Department, brought an action against the Respondent alleging violation of Section 4(a) of the Illinois Workers’ Compensation Act.  They alleged that Respondent failed to carry workers’ compensation insurance.  A hearing regarding the insurance compliance case was held on November 14, 2016 and no one appeared on behalf of the Respondent. 

    The Commission found that the Respondent was knowingly and willfully in noncompliance with Section 4 of the Act from at least July 20, 2005 to November 20, 2011 (2,325 days) and owed a fine of $500.00 per day, or $1,162,500.00.

     What was opinion of IME doctor?

    --IME doctor opinion is never mentioned. 

     RIGHT LEG

     Consider adding the details of the 8.1(b) analysis.

     Precedent regarding what specific issue? The vocational services that preceded her surgery or job placement?  

    Specific services were not outlined in opinion.

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  • 05/05/2020 5:52 PM | Judy Pfeiffer (Administrator)

    I.                   Status of Employment

    Qualizza v. Tile Roofs Inc., 28 ILWCLB 34 (Ill. W.C. Comm. 2020).

    The Petitioner worked for the Respondent as a roofer.  Before working for the Respondent, he worked at Mortenson Roofing, which was owned by the same woman who owned Respondent’s company.  The companies operated out of the same building and the Petitioner was the superintendent / foreman of the roofing projects.  Mortenson Roofing paid for the Petitioner’s work-related travel expenses, supplies, provided him a company truck.  Most of the crew he managed were employees of Mortenson Roofing.  After the Petitioner was semi-retired, he opened a business at the request of Mortenson Roofing.  Mortenson Roofing continued to provide work supplies, and they were the Petitioner’s only client.  The only difference was that the Petitioner was paid through the company instead of personally.  The Petitioner then fell from some scaffolding and injured himself while working.  He did not carry workers’ compensation insurance for his newly established business. 

    The Arbitrator found that no employer / employee relationship existed between the Petitioner and the Respondent and denied the claim.  On appeal, the Commission reversed the decision of the Arbitrator and found that the substance of the relationship between the Petitioner and the Respondent stayed the same after he opened up his own company.  The Respondent still provided supplies, employees, and was the Petitioner’s only client.  As such, the Petitioner was a de facto employee and established an employee / employer relationship.

    II.                Accidental Injury

    Nickens v. Continental Tire of North America, 28 ILWCLB 45 (Ill. W.C. Comm. 2019).

    The Petitioner worked for the Respondent for 37 years and testified his job required repetitive and forceful use of his hands including gripping tools, lifting weights, stripping wires, and twisting caps.  The Petitioner also performed computer use.  He eventually developed left hand carpal tunnel and cubital tunnel syndrome.  Both the Petitioner’s treating physicians and the IME doctor agreed with his diagnosis and causally related the Petitioner’s condition to work if his job duties involved repetitive use of power drills and forceful gripping of tools.  The Petitioner’s testimony of his job duties was corroborated by his supervisor. 

    The Arbitrator denied benefits finding that the Petitioner did not sustain repetitive trauma injuries and failed to establish his condition was work related.  The Commission reversed based on both doctors’ opinions, which supported by the Petitioner’s and the supervisor’s testimony that he had job duties with repetitive use of his hands and forceful gripping and twisting, which would be a contributing factor to his diagnosis.  The Commission found that the treating physician’s explanation of cumulative micro-traumas the Petitioner sustained that resulted in his eventual diagnosis of carpal tunnel syndrome was compensable in similar cases and justified awarding benefits here.

    Hodge v. Illinois, State of / Dept. of Corrections, 28 ILWCLB 46 (Ill. W.C. Comm. 2019).

    The Petitioner worked in several positions for the Respondent.  He initially worked as a correctional officer before a senior public service administrative warden.  The latter position required Petitioner to conduct inspections, write up reports, keep logs, and type up reports.  While working as a public service administrative warden, the Petitioner was diagnosed with arthritis in both hands.  He was subsequently transferred to an internal security investigator position, which required seven to eight hours of typing per day and shooting firearms five times per year.  While shooting in June of 2014, the Petitioner noticed pain in his hands.  

    The Arbitrator denied benefits finding that the Petitioner failed to establish he sustained an accidental injury arising out of his employment and failed to establish that his current condition of ill-being was causally connected to the work activities.  The Commission reversed the decision of the Arbitrator and found that the Petitioner established that he sustained an accident at work based in part on repetitive trauma.  The Petitioner provided unrebutted testimony that his job duties included more hand related tasks, including shooting firearms and his carpal tunnel syndrome developed only after starting this new position.  The Commission stated that the records proved that the Petitioner developed carpal tunnel syndrome and the fact that he had underlying osteoarthritis did not prevent the Commission from finding that the Petitioner established that he sustained work related carpal tunnel syndrome.

    III.             Arising Out of Employment

    Ludtke v. DeKalb, County of, 28 ILWCLB 35 (Ill. W.C. Comm. 2020).

                The Petitioner was a maintenance worker who was assigned to the courthouse.  On the day of the injury, he brought coffee and lunch to work.  He temporarily parked in another employee’s designated spot in order to drop off his coffee and lunch in the courthouse.  He was then planning on moving his car to the main parking area.  After dropping off his food and walking back to his car, the Petitioner slipped and fell in the parking lot.  The Petitioner testified that he could have parked elsewhere and was not required to eat lunch in the courthouse.

                The Arbitrator denied benefits based on accident.  The Arbitrator found that falling on ice was not a risk peculiar to the Petitioner’s employment and he was not exposed to a risk greater than the general public.  The Commission reversed and found that because the lot was under the exclusive control of the Respondent, the hazardous condition on its premises was a risk incidental to the Petitioner’s employment and he did not need to prove he was exposed to a risk greater than the general public.  The Commission relied on the Appellate Court’s explanation that a parking lot is considered to be on the employer’s premise when it is controlled by Respondent and provides access for its employees.  The Commission further found that the Petitioner’s temporary use of the nearest parking spot was reasonable and foreseeable.

    McAlexander v. Mt. Vernon School District No. 80, 28 ILWCLB 36 (Ill. W.C. Comm. 2020).

                The Petitioner was an aide at a middle school.  She was hurrying to class and tripped and fell on the strip that separated the tile from carpet.  The evidence at trial established that the ledge separating the surfaces was higher than the tile.  The Arbitrator found that because the strip was higher and the hallway was not open to the general public, the Petitioner sustained an accident that arose out of and in the course and scope of her employment.  The Commission affirmed the Arbitrator’s finding that the Petitioner was engaged in a work-related task at the time of her fall and the strip between the surfaces was a risk incidental to her employment that caused her to fall. 

    Baldock v. Vandalia Correctional Center, 28 ILWCLB 37 (Ill. W.C. Comm. 2019).

                The Petitioner was a lieutenant at a correctional facility where he was required to perform routine, daily inspections of the premises for safety.  One day he was inspecting the gym and while doing so, his knee buckled and he felt pain in his knee.  He testified that he stepped to the right to avoid hitting a boxing bag, causing his knee to buckle. 

    The Arbitrator found that the only evidence of the Petitioner having to sidestep the bag was on the Application for Adjustment of Claim and there was no evidence indicating there was any defect in the ground.  Based on this finding, the Arbitrator denied benefits and found that the Petitioner was subject to a personal risk that and did not arise out of his employment.  The Commission affirmed the Arbitrator’s denial of benefits.

    IV.             Course of Employment

    Anderson v. Homewood Flossmoor High School, 28 ILWCLB 38 (Ill. W.C. Comm. 2019).

                The Petitioner was an athletic director at a high school.  On the night of the accident, he was required to be at school for orientation.  At 4:30pm, he lifted weights and told a co-worker he was going to run on the treadmill.  Shortly thereafter, he was found unresponsive on the treadmill and pronounced dead at the scene. 

                The Arbitrator denied benefits and found that the Petitioner’s exercise on the treadmill was a personal risk, not associated with his work.  The Petitioner was not required to exercise as part of his employment and therefore it was voluntary recreation under Section 11 of the Act.  The Commission affirmed the Arbitrator’s denial of benefits and found that “a program” under Section 11 is not narrowly interpreted and expressly includes athletics such as exercise.  The Commission categorized the Petitioner’s activities on the treadmill as “exercise.” 

    V.                Calculation of Preinjury Wages

    Fedorov v. Highland Park, Park District, 28 ILWCLB 47 (Ill. W.C. Comm. 2020).

    The Petitioner worked part time for the Respondent as an ice-skating instructor.  He also owned his own business and he taught ice skating lessons.  The Petitioner was the sole shareholder of his private business and claimed the net profits as income, but did not pay wages to anyone, including himself.  The Respondent knew that the Petitioner owned and operated the private business.  The Petitioner sustained an injury to his knee while teaching lessons to children.  The Petitioner was performing work for Respondent at the time of the accident.  

    The Arbitrator awarded benefits.  However, the Arbitrator did not include the wages from his concurrent employment from the Petitioner’s private business in calculating the average weekly wage.  The Arbitrator relied on the Illinois Appellate Court’s rulings that held that if the self-employment wages were not paid to the Petitioner as wages from an employer, it could not be included in the average weekly wage calculations.  The Commission amended the period of benefits, but otherwise affirmed and adopted the Arbitrator’s ruling regarding exclusion of the concurrent employment wages.

    VI.             Permanent Disability Benefits

    Perry v. Speedway Super America, 28 ILWCLB 39 (Ill. W.C. Comm. 2019).

    The Petitioner was a gas station cashier who sustained a work-related injury that required several neck and back surgeries.  Following her treatment, she underwent an FCE that stated she could perform activities at the sedentary physical demand level with no lifting over 10 lbs.  The Arbitrator found that the Petitioner was permanently and totally disabled.  The Commission modified the decision of the Arbitrator.  The Commission found that the Petitioner failed to establish that she was permanently and totally disabled to the extent of 65% loss of use of the person as a whole.  The Circuit Court remanded the matter back to the Commission to make a credibility determination in connection with the medical opinions offered at hearing.  On remand, the Commission reaffirmed its prior decision and found that the Petitioner was not permanently and totally disabled.  This decision was based on her treating physician’s opinion that she was not totally disabled and her submaximal effort on the FCE.

    White v. Rich Township High School No. 227, 28 ILWCLB 48 (Ill. W.C. Comm. 2019).

    The Petitioner was a part time high school police liaison officer with the Respondent and a full-time police office with another employer.  While working for the Respondent, the Petitioner sustained injuries to his neck and shoulder resulting in permanent sedentary work restrictions.  Both the treating physician and the IME examiner agreed that the Petitioner could not return to police work.  The Petitioner testified that he did not look for work following his work accident or participate in vocational rehabilitation.  The Respondent offered him a position monitoring surveillance cameras within his restrictions, which the Petitioner declined.  A labor market survey was prepared.  The labor market survey set forth that there was gainful employment available for the Petitioner.  The Petitioner would earn much less than he previously earned.

    The Arbitrator found that the Petitioner was not entitled to receive wage differential benefits and instead found that Petitioner was permanently and partially disabled to the extent of 50% loss of use of a person under 8(d)2.  The Commission affirmed the denial of wage differential benefits and reasoned the Arbitrator’s finding that Petitioner sustained a loss of occupation.  The Commission explained that because the Petitioner did not engage in a job each, he did not prove his impairment of earning capacity under 8(d)1.   

    Alvarez v. Chicago, City of / Dept. of Water Management, 28 ILWCLB 49 (Ill. W.C. Comm. 2019).

    The Petitioner was a truck driver for the Respondent.  He sustained a back injury that required a lumbar fusion resulting in permanent light duty work restrictions.  His job as a truck driver required the medium physical demand level.  The Petitioner testified he applied for 1,500 jobs without success.  The Respondent did not offer him a position within his restrictions.  The Respondent introduced a labor market survey that stated employment was available but required computer skills which the Petitioner did not have.  The Petitioner’s labor market survey stated that no stable labor market existed. 

    The Arbitrator found that the Petitioner was permanently and totally disabled.  The Commission affirmed the decisions of the Arbitrator and found that the Petitioner was an odd-lot permanent total.  The Commission reasoned that the Petitioner fulfilled his burden of looking for work and completed a diligent and unsuccessful job search.  The Commission further found that the Respondent did not fulfill its burden of finding suitable employment for the Petitioner.  As such, it found that the Petitioner to be permanently and totally disabled under the odd lot category. 

    Hondros v. Illinois, State of / Dept. of Corrections, 28 ILWCLB 50 (Ill. W.C. Comm. 2020).

    The Petitioner was a 77-year-old prison maintenance worker who injured his hand at work.  Following treatment for the work injury, the Petitioner received permanent restrictions of no lifting over 10 pounds, no repetitive activity, no climbing, and no significant use of tools or equipment.  The Respondent did not accommodate the Petitioner’s restrictions during or after the date he reached his MMI on July 30, 2015.  A Transferable Skills Analysis was completed and set forth that the likelihood of the Petitioner finding alternative gainful employment was poor. 

    The Arbitrator awarded temporary total disability benefits through July 30, 2015, maintenance benefits from July 31, 2015 through March 12, 2019, and permanent total disability benefits commencing March 13, 2019.  The Commission held that the maintenance benefits were unnecessary as he was permanently and totally disabled as of July 31, 2015 when he reached MMI.  After the Petitioner was placed at MMI from his treating physician, the employer confirmed in writing that it could not accommodate the Petitioner’s restrictions and the vocational counselor opined he would likely not find alternative employment.  Thus, the Commission vacated the maintenance benefits and awarded PTD benefits commencing July 31, 2015. 

    Alvarez v. 2542 Inc. d/b/a Select Ultra Lounge, 28 ILWCLB 51 (Ill. W.C. Comm. 2019).

    The Petitioner was a cocktail server for the Respondent.  While working, her supervisor pushed her causing her to fall and cut her arm on a box.  The Petitioner received nine stitches for the laceration and eventually developed a scar.  At trial, the Arbitrator noted a three to four-inch scar on her arm.  The Arbitrator found that the Petitioner was disfigured to the extent of 25 weeks of disfigurement.  On review, the Commission noted the scar one to one and a half inches in length.  The Petitioner acknowledged it had shrunk since trial.  The Commission reduced the award to 15 weeks of disfigurement.

    VII.          Medical & Rehabilitation Benefits

    Mosley v. Illinois, State of / Shapiro Developmental Center, 28 ILWCLB 52 (Ill. W.C. Comm. 2019).

    The Petitioner was a mental health technician who sustained an injury to her neck and back while transferring a disabled patient from the bed to a wheelchair during a fire alarm.  She underwent surgery and was released with permanent restrictions following an FCE.  The Respondent was unable to accommodate the Petitioner’s restrictions and she began a vocational rehabilitation program.  The vocational counselor recommended the Petitioner obtain her GED and complete a computer training program.  The Petitioner completed the recommendations of the vocational counselor.  The Petitioner was receiving maintenance benefits during this time.  However, the Petitioner ultimately failed the computer course because she failed to sit for the final examination.  The record showed that the Petitioner had difficulty finding employment and unreliable transportation and family hospitalizations hindered her ability to find work.

    At the trial, the Arbitrator awarded maintenance benefits finding that she fully participated in her vocational rehabilitation process throughout five years of vocational rehabilitation programs.  On review, the Commission held that the evidence proved the Petitioner was non-compliant with vocational rehabilitation and she did not conduct a valid job search.  Based on this, it vacated the award of maintenance benefits from January 27, 2015 through February 15, 2016 on the basis that she did not undergo a valid job search.

    VIII.       Authority of Commission

    Centeno v. (Minute Men of Illinois), IWCC, 28 ILWCLB 55 (Ill. App. Ct., 2nd 2020).

    The Petitioner sought benefits for a work injury which occurred on October 7, 2010.  The Arbitrator awarded TTD and medical benefits after a 19(b) hearing.  The Commission reduced the medical benefits awarded, but otherwise affirmed the decision of the Arbitrator.  The case was appealed to the Circuit Court.  The Circuit Court increased the weekly TTD rate, but otherwise affirmed the Commission’s decision.  The Illinois Appellate Court affirmed. 

    While this matter was pending in the Illinois Appellate Court, the Petitioner filed another 19(b) motion.  During this second hearing, the Petitioner gave testimony suggesting he was employed under two different identities.  The Petitioner’s attorney asked for a bifurcation at that time on the basis of a breakdown in the attorney client relationship.  The Arbitrator granted the request for the bifurcation.  When the hearing began again, the Petitioner’s attorney sought to withdraw the 19(b) motion and end the hearing.  The Arbitrator denied this request and also denied benefits.  The Commission affirmed and the Circuit Court affirmed the Commission’s decision.

    The Appellate Court affirmed the Commission’s ruling finding it was not against the manifest weight of the evidence.  The Illinois Appellate Court held that the Petitioner did not have an absolute right to withdraw a 19(b) motion after the hearing began and testimony was given.  It reasoned that the issue was forfeited because it was not addressed in the Petitioner’s statement of exceptions and supporting brief to the Commission and it found no merit in this argument.  The Court also found no error was committed by the Commission in relying on a transcript from another case in reaching its decision.  Lastly, the Court found no error in the direction to obtain enforcement of unpaid benefits at the Circuit Court.  

    Restivo v. Mach Mining LLC, 28 ILWCLB 40 (Ill. W.C. Comm. 2020).

    The Petitioner filed an Application for Adjustment of Claim alleging he contracted an occupational disease while working.  The Petitioner died during the pendency of the claim.  The Petitioner’s widow was substituted as the Petitioner.   The Arbitrator found that the Petitioner did not prove that he sustained a compensable injury.  The Commission affirmed the Arbitrator’s denial of benefits.  The Commission separately explained that the widow was properly substituted in as the Petitioner and she did not need to take any further steps to pursue the claim.  The majority of the Commission explained that the Act, Commission Rules, and case law do not require a separate probate or Circuit Court ruling be made before someone can be properly substituted in on a workers’ compensation claim.  However, the new taker does need to qualify as a dependent as defined by the Act.

    IX.             Benefit Payment Procedures

    Hudson v. Illinois, State of / Dept. of Corrections, 28 ILWCLB 41 (Ill. W.C. Comm. 2019).

    The Petitioner was a nurse at a corrections facility.  She sustained an injury to her ankle after stepping in a pothole on the Respondent’s premises.  While treating for this injury, the Petitioner passed away from unrelated causes.  She had not reached MMI from the work injury treatment.  The Arbitrator declined to award permanent disability benefits because the Petitioner had not reached MMI.  The Commission affirmed and adopted the Arbitrator’s ruling.  The Commission explained that the administrator of the estate may recover benefits accrued until the date of death.  An estate’s recovery is limited to benefits due from the date of MMI though the date of death.

    Frasco v. Cook County Clerk of Circuit Court, 28 ILWCLB 53 (Ill. W.C. Comm. 2019).

    The Petitioner was a court reporter who sustained an injury to her knee after her shoe became caught in a hole in the ground causing her to fall.  She received treatment for her back treatment and underwent a total knee replacement as a result of her work injury.  Following her treatment, the IME examiner recommended that the Petitioner required permanent sedentary work restrictions.  The Petitioner required continued narcotic use and accommodations to and from her desk with limited walking.  The Respondent instructed the Petitioner to return to work in a light duty capacity.  The Petitioner presented to work and waited for reinstatement paperwork to be completed.  However, the Petitioner left due to pain.  The Respondent terminated TTD benefits after this date.  At trial, the supervisor testified the Petitioner could not return to work if on narcotics.

    The Arbitrator awarded medical, TTD benefits, and penalties under sections 19(l), 19(k), and attorney’s fees under section 16.  The Arbitrator found that the light duty position was not a valid accommodation and did not meet her restrictions.  The Commission also found that the light duty assignment was not valid since it did not accommodate all of the Petitioner’s restrictions and affirmed the penalties against the Respondent.  Further, even though the Respondent’s restrictions of limited walking and continued narcotic use were not accommodated, the Petitioner still attempted to return but the Respondent did not complete her reinstatement documents. 

    Reagan v. Tiffany & Co., 28 ILWCLB 54 (Ill. W.C. Comm. 2020).

    The Petitioner was a sales associate clerk who slipped and fell at work injuring her right hip. While receiving medical treatment, she developed pain in her left hip from overcompensation.  The Respondent disputed payment for the left hip condition.  The Petitioner testified that the TPD benefits she did receive from the Respondent were irregular. 

    The Arbitrator awarded TTD benefits, TPD benefits, medical, prospective medical care, and penalties and attorney’s fees under sections 19(k), 19(l), and 16.  On review, the Commission agreed with the Arbitrator’s findings that the Respondent failed to present any evidence to rebut the presumption of unreasonable delay, the Respondent failed to provide a response within 14 days of Petitioner’s demand for payment, and Respondent did not provide a written denial of benefits.  However, the Commission disagreed with the penalties under sections 19(k) and attorney’s fees under section 16 as it did not find that the Respondent’s conduct was vexatious.  It was persuaded by the Respondent’s argument that calculating benefits was difficult with the Petitioner’s irregular and fluctuating hours.  Further, the Commission confirmed that the benefits were denied based on the report of the IME examiner, who did not find causation to the bilateral hip condition.  As such, the Commission affirmed the $10,000.00 in penalties under section 19(l) but vacated the penalties under sections 19(k) and 16. 

    X.                Claim Filing Procedures

    Hernandez v. Accurate Personnel Services, 28 ILWCLB 42 (Ill. W.C. Comm. 2020).

    The Petitioner filed an Application for Adjustment of Claim in March 2015.  In August 2015, the Arbitrator dismissed the claim for want of prosecution.  An E-Notice of Dismissal was generated from the Commission three days later.  The Petitioner filed a Petition to Reinstate on November 20, 2018.  The Petitioner argued that the claim was in settlement negotiations and that he did not receive the E-Notice of Dismissal.  He stated that he only learned that the case was dismissed after trying to obtain a hearing date.  The Petitioner stated on the record that his firm has an office email to receive Commission Notices and that he did not receive the Dismissal.  The Respondent argued that the Reinstatement was not filed within 60 days of the dismissal and that the Arbitrator did not have jurisdiction to hear the matter.  The Arbitrator granted the Petitioner’s reinstatement and approved a settlement contract between the parties. 

    The Commission affirmed the Arbitrator’s holding.  The Commission explained that the E-Notice does not contain the email addresses of recipients, so there is no evidence of where the E-Notification was sent.  The Commission found that the Petitioner’s statements on the record were credible and were enough to rebut the E-Notice presumption.  The Commission also found that the claim was being diligently pursued as was evidenced by the fact that the Petitioner’s attorney requested and tried to obtain a hearing date.

    XI.             State Court Authority & Procedures

    Anderson v. Greif Packaging LLC, 28 ILWCLB 43 (N.D. Ill. 2020).

                A Plaintiff filed a claim in Illinois state court alleging the Defendant wrongfully terminated him in retaliation for filing a workers’ compensation claim.   The Defendant removed the claim to U.S. District Court.  However, the Plaintiff’s motion to remand to state court was granted because under Craig v. Ford Motor Co., the Court established actions alleging retaliatory conduct under 4(h) of the Act cannot be removed to federal court.  

    XII.          Insurance Practices & Procedures

    IWCC v. Koev, 28 ILWCLB 44 (Ill. W.C. Comm. 2020).

    An employee of the Respondent was injured at work on July 16, 2012.  The Respondent did not carry workers’ compensation insurance as required by the law.  The Injured Workers’ Benefit Fund paid benefits in the amount of $24,766.57 to the injured worker.  The Illinois Workers’ Compensation Commission then brought an action against the Respondent for failing to carry workers’ compensation insurance.  The Commission found that the Respondent had not carried the mandatory insurance for 898 days and he was not made aware of this action in the past as there had only been one claim filed at the IWCC.  The Respondent did not appear for the hearing or show any willingness to cooperate or settle.  As such, the Commission assessed a penalty of $400.00 per day for 898 days ($359,200.00) plus $24,766.57, for a total of $383,966.57.

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  • 03/20/2020 8:46 AM | Judy Pfeiffer (Administrator)

    Download a copy

    I.                   ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

    McCarty v. Illinois State University, 19 I.W.C.C. 0375 (July 23, 2019)

    The Arbitrator found that Petitioner sustained accidental injuries arising out of and in the course of her employment when she slipped on stairs as her work qualitatively and quantitively placed her at a greater risk of injury than the general public.  The Commission affirmed and adopted the decision of the Arbitrator.

    Petitioner was employed as a building service worker for Respondent.   Petitioner’s job duties included janitorial and cleaning assignments.  On November 25, 2015, Petitioner was working in a 28-story dormitory for the university.  The dormitory consisted of 5 houses and an elevator stopped on the third floor of each house.  In order to reach the other two floors, Petitioner had to traverse stairs.  The stair surfaces were concrete and covered in a metal slate.  On the alleged date of injury, Petitioner claimed the dormitory was insufficiently staffed so Petitioner had to cover an extra area, including a stairway.  Petitioner had to traverse the stairs to perform her work on her regular floors and the extra areas.  She also traversed the stairs to replenish cleaning supplies.  Petitioner claimed she was moving faster than normal and while traversing the staircase and carrying cleaning materials she slipped on the stairs and twisted her right foot.

    The Arbitrator found that Petitioner was subjected to an increased risk resulting from an increased workload because of staffing deficiencies requiring Petitioner to increase the frequency and manner (speed) when using the stairs.  The Arbitrator found this quantitively and qualitatively increased her risk.  The Arbitrator also found that using stairs were the only means of travel between most floors.

     

    Almanza v. Caterpillar, Inc., 19 I.W.C.C. 0396 (July 30, 2019)

    The Arbitrator found that Petitioner sustained accidental injuries arising out of and in the course of his employment when he was “hurrying” upstairs to complete a task on a backed-up assembly line when he turned to go up the stairs he felt a pop and pain in his left knee. The Commission affirmed and adopted the Arbitrator’s decision.

    Petitioner was employed by Respondent as an assembler.  Petitioner worked on a line fairly new to him and he fell behind on his duties.  A coworker agreed to assist the Petitioner but advised him to hurry as he had his own work to complete.  The coworker was on a platform near Petitioner.  To  assist the coworker, the Petitioner rushed up stairs and as he turned to go up the stairs he felt a pop and pain in his left knee.  Petitioner testified he recalled this happening on April 20, 2012.  Respondent argued that the accident occurred on April 19, 2012 based upon testimony of the Section Manager who testified petitioner informed him that on April 19, 2012 he felt a pop in his left knee when he was walking. 

    The Arbitrator found that the date of accident was April 19, 2012 and found that Petitioner’s left knee injury arose out of and in the course of his employment based upon an incident report of May 1, 2012 when an on-site nurse documented that Petitioner was ascending stairs when his left knee popped.  A witness, who testified on behalf of Petitioner, supported Petitioner’s testimony that he was working quickly and that he noticed pain in the left knee while on a stair.  The Arbitrator found that the Petitioner was hurrying upstairs to complete a task which arose of his employment. 

    The Commission affirmed and adopted the decision of the Arbitrator.

    DeLeon v. Fresenius Medical Care, 19 I.W.C.C. 0365 (July 19, 2019)

    The Arbitrator found that Petitioner failed to prove that she sustained accidental injuries arising out of and in the course of her employment on December 2, 2010.  On review, the Commission reversed the Arbitrator and found the Petitioner did sustain accidental injuries arising out of and in the course of her employment.  The Commission found that the Petitioner’s slip and fall on ice in a parking lot occurred in the course of her employment.

    Petitioner was a patient care technician for the Respondent working with dialysis patients.  Respondent’s facility was located in an office building shared by a childcare center and vascular clinic.  There was a parking lot where members of the public and employees could park.  The parking lot was not owned, maintained or controlled by the Respondent.  Witnesses testified there were no specific parking spots designated for employees.  Petitioner and a co-worker arrived at work at 4:00 a.m. on December 22.  It was dark and the parking lot was icy and slippery.  Petitioner walked from her parking spot to the door to enter the Respondent’s facilities.  As Petitioner approached the door she slipped on ice and fell.  The co-worker testified that the heshe saw Petitioner  fall partially on the sidewalk and partially on the parking lot.

    The Arbitrator found that Petitioner’s fall did not arise out of her employment.  The Arbitrator noted the Petitioner did not fall on Respondent’s premises (either the sidewalk or parking lot).  The Arbitrator noted Respondent did not own or maintain the area where Petitioner fell and the parking lot was open to the general public.  The Arbitrator also found the Respondent did not require Petitioner to use the entrance and the Respondent did not direct the Petitioner to park in the area where she parked.

    The Commission on review reversed the Arbitrator’s decision.  In determining whether the Petitioner’s accident was in the course of employment, the Commission found the parking lot was part of the employer’s premises.  “Additionally, there is no dispute that Respondent's employees customarily park in the parking lot. In similar circumstances, the Illinois Supreme Court determined that "if the employer provides a parking lot which is customarily used by its employees, the employer is responsible for the maintenance and control of that parking lot.   De Hoyas v. Indus. Comm'n, 26 Ill. 2d 110, 113 (1962).  After analyzing the relevant facts, the Commission finds the parking lot is part of the employer's premises” 

    The Commission found the accident arose out of Petitioner’s employment as the Petitioner’s injuries resulted directly from the “hazardous” condition of the parking lot.

    Hasan v. Eagle Sports Range, 18 I.W.C.C. 02799 (August 16, 2019)

    The Arbitrator found that Petitioner’s injuries arose out of and in the course of his employment.  The Commission affirmed and adopted the decision of the Arbitrator.

    Petitioner worked as a salesperson and firearms instructor for Respondent’s gun store.  Respondent also had an on-site firing range.  Petitioner had an Illinois Concealed Carry permit and an instructor’s permit.  On October 25, 2017, the Petitioner clocked into work, loaded bullets into an ammunition clip, loaded the clip into a pistol and “racked” the pistol (advancing a bullet into the firing chamber).  As Petitioner holstered the firearm, the pistol discharged and a bullet went into Petitioner’s right leg.

    The Arbitrator found the Petitioner was in the course of his employment when the gun discharged as he had clocked in and holstered his gun so he could go on the sales floor to do his job duties.  The Arbitrator also found that Petitioner’s injury arose out of his employment since the risk of injury was incidental to his employment.  Respondent encouraged employees to wear loaded firearms on its premises.  Employees being armed discouraged any robberies and made potential customers comfortable being around employees that displayed guns and wore guns.

    Lannon v. I.W.C.C. and S&C Electric Co. 2020 Ill. App. (1st D.) 181903WC

    In an unpublished decision of the Illinois Appellate Court, First District, the Court affirmed the Circuit Court’s reversal of the Commission finding that Petitioner failed to establish that he sustained accidental injuries arising out of and in the course of his employment.

    Petitioner worked as a general machinist for the Respondent.  On May 2, 2016, the Petitioner was operating a press machine.  He reached to pull a lever down when something popped in his left shoulder.

    The Arbitrator found Petitioner sustained an accidental injury and awarded benefits including prospective medical care.  The Commission on review reversed the Arbitrator’s decision finding that the Petitioner was injured while “reaching,” which the Commission characterized as a “neutral risk,” and that Petitioner failed to prove that his reaching performed at work was qualitatively or quantitatively different from that of the general public.

    The Circuit Court of Cook County reversed the decision of the Commission.  The Circuit Court in a de novo review standard agreed with the Commission that the act of reaching is a neutral risk. Contrary to the Commission, the Circuit Court found the Petitioner’s job duties required him to reach up and pull a lever down on a machine hundreds of times per day (quantitatively different from the general public).

    Petitioner testified he pulled the levers between 100 and 200 times per day.  When he pulled the lever down on the date of the accident, he felt something pop in his left shoulder. 

    The Appellate Court first determined that the Circuit Court applied the incorrect standard of review and should have determined whether the Commission decision was against the manifest weight of the evidence.  The Appellate Court determined there were material facts in dispute.  In reviewing the Commission’s decision, using the manifest weight standard, the Court found that the Commissioner erroneously found that the Petitioner’s reaching was not qualitatively or quantitively different from the general public.  The Court stated, “risks are distinctly associated with the claimant’s employment whenever the injury-producing act was required by the claimant’s specific job duties, even if the injury-producing act is an activity of daily living, like reaching or pulling.”  The Court determined that the McAlister v. IWCC, 430 Ill. Dec. 434 (1st D. 2019) decision meant that “if the injury producing act was required by the claimant’s job duties, the claimant has established an accidental injury arising out of his employment by that fact alone, and there is no need to perform a neutral risk analysis.”  The Court, in dicta, stated even if McAlister is overturned on appeal to the Supreme Court, the Petitioner proved that his neutral risk activities were quantitively different from the general public.

    Purcell v. University of Illinois 19. I.W.C.C. 0432 (August 13, 2019)

    The Arbitrator found that the Petitioner was not a traveling employee and that Petitioner’s injury that occurred when she was walking to a personnel services building of the Respondent and attempted to hop over a chain barrier fence did not arise out of her employment.  The Commission affirmed and adopted the Arbitrator’s decision.

    Petitioner worked as an administrative assistant for the Respondent.  Petitioner claimed her job required her to leave her office in the undergraduate library daily to perform duties around the campus.  Petitioner would generally walk to other buildings on the campus or take a bus.  She decided what routes to take and managed her own schedule.  On the day of injury, Petitioner took a bus to work and intended to go to the personal services building to drop off her timecard which she had to do every other Friday.  On her route, she  hopped over a chain fence when the heel of her shoe became caught and she fell dislocating her elbow.  Petitioner admitted on cross-examination she was an hourly employee and not paid for lunch or for travel to and from work.  Petitioner admitted about 10-15 feet to the left of where she fell there was no fence.

    The Arbitrator found that Petitioner’s job did not require her to leave the office building unless requested by her supervisor who testified this was uncommon for petitioner.  Her supervisor also testified Petitioner could return her timecard during any time of the day.  The Arbitrator cited the Dodson v. Industrial Commission, 308 Ill. App. 3rd 572 (5th D. 1999) case to support his finding that even if the petitioner was a traveling employee she exposed herself to an unnecessary danger by hopping over a fence when just 15 feet away she did not need to do so.

    Bruno v. Conifer Care Continuom Solutions, LLC. 19 I.W.C.C. 0424 (August 8, 2019)

    The Arbitrator denied that Petitioner sustained an accident arising out of her employment when Petitioner reached behind her while sitting on a toilet to flush the toilet with a malfunctioning handle.  The Commission reversed.

    Petitioner worked for a third-party medical billing representative for the Respondent.  On July 12, 2016, during her workday, she went to the ladies restroom located in an employee-only area.  While sitting on a toilet, she reached behind her with her right arm to flush the toilet.  Petitioner testified that the toilet did not immediately flush and she had to push the handle harder.  When Petitioner pushed the handle harder, she experienced a sharp pain in her right shoulder which traveled down her elbow.  The Arbitrator denied benefits and found that Petitioner failed to establish that she sustained a compensable accident.

    The Commission, in a 2-1 decision, found Petitioner’s injuries were compensable based on the personal comfort doctrine.  The Commission found that Petitioner was injured in the course of her employment as the injury occurred in facilities provided by the Respondent; Petitioner did not use the facilities in an unreasonable or unforeseen manner and Petitioner was attempting to flush a toilet with a malfunctioning handle.  The Commission found the injury arose out of Petitioner’s employment since flushing the toilet was a neutral risk and from a quantitative standpoint, the Petitioner was exposed to a greater risk of injury due to her employment given the frequency with which she was forced to utilize the facilities.   The Commission also noted that the handle malfunctioned and concluded that Petitioner was qualitatively exposed to a greater risk.

    The Dissenting Commissioner noted that the Arbitrator did not find Petitioner credible since her “accident” was unwitnessed and Petitioner waited 17 days before seeking any medical treatment.  The Petitioner also claimed that at the time she had to push the toilet handle she felt a “ripping” sensation in her shoulder.  The Dissenting Commissioner agreed that the Petitioner’s incident was in the course of her employment but did not arise out of her employment.  The Dissenting Commissioner noted that no evidence was submitted actually proving the toilet handle was defective – only testimony that sometimes it required more than one flush. 

    II.                OCCUPATIONAL DISEASE

    Goddard v. Emerald Performance Materials 19 I.W.C.C. 0430 (August 12, 2019)

    Woolsey v. Global Brass 19 I.W.C.C. 0461 (August 26, 2019)


    III.             CAUSAL RELATIONSHIP

    Parks v. Qual-A-Wash 19 I.W.C.C. 0420 (August 6, 2019)


    IV.             AVERAGE WEEKLY WAGE

    Beattie v. IWCC & St. Clair County Sheriff’s Dept.  2020 Ill. App. (5th D.) 190041WC


    V.                COMPUTATION OF AWARDS

    O’Kane v. City of Chicago, 19 I.W.C.C. 0374 (July 22, 2019)

    Carter v. Chicago Transit Authority 19 I.W.C.C. 0455 (August 23, 2019)


    VI.             PERMANENCY BENEFITS

    Allen v. Ford Motor Company, 19 I.W.C.C. 0377 (July 23, 2019)

    McGrane v. Trane Chicago, 19 I.W.C.C. 0379 (July 24, 2019)

    Hoffman v. State of Illinois/Menard Correctional Center, 19 I.W.C.C. 0393 (July 25, 2019)

    Butler v. State of Illinois, Choate Mental Health 19 I.W.C.C. 0427 (August 8, 2019)


    VII.          MEDICAL AND REHABILITATION BENEFITS

    Smith v. Superior Express, 19 I.W.C.C. 0417 (August 2, 2019)

    Cruse v. Choate Mental Health Center, 19 I.W.C.C. 0419 (August 6, 2019)


    VIII.       CLAIM FILING PROCEDURES

    Jones v. Ford Motor Company, 19 I.W.C.C. 0414 (August 2, 2019)

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  • 11/29/2019 11:30 AM | Judy Pfeiffer (Administrator)

    I.   ARISING OUT OF EMPLOYMENT 

    Buckley v. Molly Maids, 16 WC 32369, No 19 I.W.C.C. 0196 (April 18, 2019) 

    The Petitioner worked full time for the Respondent as a maid.   She worked there for nearly 20 years.   Her main duties included mopping, vacuuming, sanitizing kitchens and bathrooms, dusting mini-blinds, ceiling fans, cobwebs, baseboards and doorframes and unloading and reloading the car with supplies.   On the day of the incident she was dusting the levers of the mini-blinds and she was holding the bottom of the mini-blinds so she would get a good wipe on it but then it starting coming loose and she reached up too quick and that is when she felt a pop.   She noticed immediate pain in her left arm.  She notified her boss via text.   She went to the occupational health clinic on the day of the accident, that being September 21, 2016.    

    The Arbitrator denied the claim finding the activity was a neutral risk.    

    The Arbitrator determined, based on the facts nothing in the records suggested the Petitioner’s employment contributed to the risk of raising her arm so as to constitute a qualitative increase in the risk faced by the general public.   There was nothing in the record to indicate the Petitioner had to raise her arms more frequently than the general public.   The Arbitrator denied the claim.    

    On review the Commission reversed the Arbitrator’s Decision and found the activity being performed by the petitioner was an employment risk.   The Commission relied upon Mytnik v. Illinois Workers' Compensation Commission, 2016 Ill. App. (1st) 152116WC.   

    In Mytnik the claimant worked on an assembly line where he installed rear suspension on vehicles using an articulating arm to fasten bolts and brackets.   At the time of his injury, the claimant was reaching down to grab a bolt that had fallen on the assembly line where he felt pain down the right side of his back and hip.  The Appellate Court found the act of bending may be an act performed by the general public on a daily basis, however, the evidence established that bolts would regularly fall out of the articulating arm during the assembly process and that the claimant had to run down there and bend over and reach and pick up before the rotating platform ran over it.   

    The Commission determined that the Petitioner’s act of raising her arm may have been an act performed by the general public on a daily basis however that was not the whole of the Petitioner’s testimony.   The petitioner testified that in the process of holding the bottom of the mini-blind, and then attempting to dust it the mini-blind became loose and she quickly reached upward with her left arm to prevent the mini-blind from falling.   The Commission ruled it was in error that the Arbitrator determined that nothing by way of the Petitioner’s employment contributed to the risk of raising her arm.    

    The Commission stated:  “Here, the act of dusting the mini-blind, was a required part of the Petitioner’s job duties.   There was no testimony or evidence to the contrary.  The fact the mini-blind had loosened, began to fall and Petitioner attempted to prevent the mini-blind from falling further by suddenly lifting her left arm was a risk incidental to, belonging to, and connected to Petitioner’s dusting duties.” 

    Maria E. Portela and Thomas J. Tyrrell authored the opinion and there was a dissent by Deborah Simpson.    

    Sims v. State of Illinois, Jacksonville Correctional Center, 17 WC 25254; 19 I.W.C.C. 0195 (April 18, 2019)  

    Arbitrator Hemenway denied the claim on the basis the Petitioner failed to prove the accident arose out of the employment.   The Petitioner was a correctional officer at the Jacksonville Correctional Center.   On December 18, 2016 he slipped on ice as he was returning from his “chow break” located in the gatehouse.  To get to the gatehouse he had to leave the tower, walk across the parking lot, and then walk on the sidewalk.   As he was returning from chow break he exited the gatehouse, walked down a long sidewalk, turned left and walked towards the parking lot.   He lost his footing before he got to the parking lot.   He testified everything was covered with snow and ice.    

    The path to the gatehouse was open to the public.   The petitioner testified the pathway is in a secure area of the prison.   He can eat in the break room or any other room where they are assigned to eat.   

    The Petitioner sought medical care.   The Arbitrator had found the Petitioner was exposed to a neutral risk and that the Petitioner failed to establish that he was exposed to a risk of falling snow and ice to a greater degree than that of the general public.   The Arbitrator also indicated the Petitioner failed to prove that the risk of falling on snow and ice while walking in a public lot was qualitatively or quantitatively increased due to his job duties.    

    The Commission reversed the Arbitrator and stated:  “However, a risk-analysis is unnecessary if the injury occurred on the employer’s premise due to an unsafe or hazardous condition.   Our Supreme Court has held that accidental injuries sustained on the employer’s premises within a reasonable time before or after work arise “in the course of” employment.   Archer Daniels Midland Co. v. Industrial Commission, 91 Ill.2d 210, 215, 437 N.E.2d 609, 62 Ill. Dec. 921 (1990).   Further, where the injury was due to the dangerous condition of the employer’s premises, courts have consistently approved an award of compensation.  Hiram Walker & Sons, Inc. v. Industrial Commission, 41 Ill.2d 429, 244 N.E.2d 179 (1968) holding that claimant’s fall in employer’s ice-covered parking lot was compensable; Mores-Harvey v. Industrial Commission, 345 Ill. App.3d 1034, 804 N.E. 2d 1086, 281 Ill. Dec. 791 (2004) (The presence of a hazardous condition on the employer’s premises that causes a claimant’s injury supports the finding of a compensable claim.”); Suter v. Illinois Workers' Compensation Commission, 2013 Ill. App. (4th) 130049WC; 998 N.E.2d 971, 376 Ill. Dec. 261 (where the claimant slipped on ice in a parking lot furnished by employer shortly after she arrived at work, the claimant was entitled to benefits under the Act as a matter of law).    

    The Commission also stated:  “The fact that the walkway in the case at bar was also used by the general public is immaterial to the issue of compensability as petitioner’s injury was caused by a hazardous condition on the employer’s premises.”  The Commission goes on to state:  “(t)he hazardous condition on the employer’s premises renders the risk of injury incidental to employment without having to prove that she was exposed to the risk of that hazard to a greater extent than are members of the general public”. 

    In the present case, it was undisputed that the walkway where Petitioner fell was on the employer’s premises and that the walkway and parking lot were covered in snow and ice.  Petitioner’s testimony he slipped and fell on the ice was not rebutted by the Respondent and was bolstered by the Employer’s First Report of Injury and the contemporaneous medical record.  The Commission found that the injury was caused by the snow and ice which represented a dangerous condition or defect on the employer’s premises.   As there was a hazardous condition on the employer’s premises, a neutral risk analysis was not warranted.   Petitioner’s injury is a compensable claim. 

    The Commission then went on to state that they could have also found this case compensable under the “Personal Comfort Doctrine”.    

    The Commission then reviewed the medical evidence and took into consideration the 5 factors under Section 8.1(b) of the Act and awarded the petitioner 1% of a man as a whole.    

    Read the full report.

  • 10/31/2019 11:25 AM | Judy Pfeiffer (Administrator)

    Arising Out of Employment:

    Crusoe v. Harper College, 27 ILWCLB 144 (Ill. W.C. Comm. 2019).

    The Petitioner was a custodial services supervisor at a college. He was walking through a hallway en route to an inspection when his left knee got stuck in the carpet and buckled. On his investigation report, he noted that he was walking through the hallway when he heard his knee pop and was “clueless” about the cause of the incident. At trial, the Petitioner testified that the floor below the carpet was defective.

    The Arbitrator denied benefits because there was no mention of his knee getting stuck in the carpet in his initial treatment records and instead noted that he hurt himself while walking. Further, the Arbitrator indicated that if the carpet was defective, the Petitioner had ample time to provide notice or make a report as the custodial supervisor and never did. Because the Arbitrator found he hurt himself while walking and the act of walking does not expose him to an increased risk of injury compared to the general public, his injury did not arise out his employment. The Commission affirmed noting that he suffered from an idiopathic condition, which was a personal risk unrelated to his employment.

    Increased Risk:

    Stewart v. Jewel Food Stores / New Alberton’s Inc., 27 ILWCLB 145 (Ill. W.C. Comm. 2019).

    The Petitioner worked in a “recoup room” in a warehouse recouping damaged product that could be salvaged. He initially reported that he injured himself after he tripped over a tote of product falling onto his tailbone. However, his medical records indicated that he hurt himself when he went to sit down on a chair and it rolled out from under him and / or that he tripped on a bench. The Arbitrator denied benefits based on the surveillance footage of the alleged accident. The footage showed the Petitioner attempt to sit down, miss his chair, immediately stand up after the fall and continue working. The Arbitrator noted that the Petitioner misjudged the location of the chair and that’s what caused him to fall, not any defect with the chair or the surrounding area. Since the risk of him missing his chair was not related to his work and was just as likely to happen outside of work, the Arbitrator found it was a neutral risk. No evidence was presented to show he was quantitatively or qualitatively exposed to this risk greater than the general public. The Commission affirmed and adopted the Arbitrator’s denial of benefits.

    Jackson v. Loretto Hospital, 27 ILWCLB 146 (Ill. W.C. Comm. 2019).

    The Petitioner worked as a medical records technician for a hospital. When entering work one day, she stumbled on steps walking upstairs in the hospital. The Arbitrator denied

    benefits noting there was no defect in the staircase, and she did not have to perform any special task that necessitated her need to carry anything or hurry while taking the stairs. The Arbitrator explained that stairs are a neutral risk and a fall is not compensable if the Petitioner does not face a risk of injury to a greater degree than that faced by the general public. The Commission affirmed and adopted the Arbitrator’s decision.

    Course of Employment:

    Newson v. Chicago Lighthouse for People Who Are Blind or Visually Impaired, 27 ILWCLB 147 (Ill. W.C. Comm. 2019).

    The Petitioner is a customer service representative for the Respondent, who is located in the basement of a college student union. The student union is open to all students and occupies multiple businesses, but the Respondent was the only employer in the basement. In order to get to work, the Petitioner has to enter the student union, walk down a hall, and either take the elevator or stairs down to the basement. The Petitioner was walking to work one day and slipped and fell on a wet floor in the common area of the student union, injuring her ankle. The Arbitrator awarded benefits.

    The Commission reversed, finding that the Petitioner did not prove the injury occurred in the course of employment. The Commission found that because the Petitioner was not instructed on which route to take to work and the union had many entrances all open to the general public, the Petitioner was not exposed to a greater risk. They specifically found that the requirement of walking through the lobby two times per day in order to travel to and from work did not establish increased risk.

    Pickett v. Chester Mental Health Center, 27 ILWCLB 148 (Ill. W.C. Comm. 2019).

    The Petitioner is an activity therapist at a mental health center, who provided leisure activities for patients. He often provided music for the patients during gym sessions. One day while on break, the Petitioner went to his car to get a CD he had forgotten and intended to use during that day’s gym session. While walking to his car, he slipped and fell on ice in the parking lot, injuring his knee. The Petitioner was assigned to park in a specific area of the parking lot which only employees could use. The public and visitors had to park in a separate parking lot.

    The Arbitrator awarded benefits finding that the Petitioner’s actions were within the scope of his employment since he was performing a duty he was hired to perform. The Arbitrator also found that the accident arose out of the Petitioner’s employment because he slipped on ice in a parking lot controlled by the Respondent. The Commission affirmed.

    Walker Brothers Inc. v. (Ramsey), IWCC, 27 ILWCLB 155 (Ill. App. Ct., 1st 2019).

    The Petitioner was a cook with the Respondent. On the day of his accident he was parked in a neighboring parking lot of another business waiting for a co-worker to arrive and open the restaurant. When the co-worker arrived, the Petitioner rushed to follow him and slipped

    and fell in the neighboring business’s parking lot. The Respondent had a longstanding agreement with the neighboring business that 13 of the Respondent’s employees could park in its lot from January through October. These parking spaces were open to the public and there was no sign indicating that they were reserved for the Respondent’s employees.

    The Commission found that the Petitioner’s injury arose out of and in the course and scope of his employment and awarded benefits. The Circuit Court affirmed the Commission’s decision. The Illinois Appellate Court reversed as a matter of law. They found that the Respondent did not own, control, or contribute toward maintenance of the neighboring lot. There was no evidence to support the Petitioner’s claim he was required to park there. Rather, they found that the evidence suggested most employees did not park there because it required them to cross the street. Based on this, the Appellate Court found the neighboring lot was not provided by the Respondent and the Petitioner’s injuries did not arise out of and in the course and scope of his employment.

    Wylie v. Illinois State of / Dept. of Juvenile Justice, 27 ILWCLB 156 (Ill. W.C. Comm. 2019).

    The Petitioner was a juvenile justice specialist at a youth correction center. In this position she supervised, interacted, and participated with the youths. She would take the kids on field trips, including day trip to a swimming pool. While at the pool on day, she dove in and injured her shoulder. The Respondent’s written rules did not prohibit swimming.

    The Arbitrator denied benefits finding that the Petitioner failed to prove she sustained an injury arising out of and in the course of her employment. The Commission reversed. They found she was a traveling employee because she was required to take the youths to the pool that day. Because the Petitioner was required to interact with the students, and that is what she was doing while swimming with them at the pool, they found her injury also arose out of her employment. Further, they found it was reasonable and foreseeable that she would swim that day and there were no rules preventing her from swimming.

    Ciaccio v. Riverside Medical Center, 27 ILWCLB 157 (Ill. W.C. Comm. 2019).

    The Petitioner was a trauma registrar and emergency preparedness specialist at a medical center. She also served as a chairperson on the Respondent’s “Partners in Care Committee” where she oversaw committee fundraisers. The Petitioner oversaw a “treadmill-a-thon” where employees exercised on treadmills or bikes for 24 hours in an effort to fundraise. During this event, the Petitioner tripped and fell over a barrier and fractured her wrist. The Petitioner testified she was encouraged to serve on this committee by her employer and was paid normal wages during the fundraiser which took place during normal office hours.

    The Arbitrator denied benefits based on Section 11 of the Act. Upon review, the Commission affirmed the denial of benefits, but rejected the Arbitrator’s application of Section 11. The Commission found that while exercising could be a recreational activity under Section 11, the exercise at this fundraiser was done to raise money and not for play and was therefore not a recreational activity under Section 11. The Commission found that the Petitioner failed to

    prove she was required as part of her job to participate in this fundraiser and it was a voluntary act that did not arise out of and in the course of her employment.

    Accidental Injury:

    Aden v. Tyson Foods Inc., 27 ILWCLB 149 (Ill. W.C. Comm. 2019).

    The Petitioner had finished his shift and was waiting in his car outside the Respondent’s premises for his co-workers so he could drive him home. The Petitioner exited his car briefly and while doing so, was attacked and stabbed by a co-worker. The Petitioner had not spoken to the assailant that day but did have a prior work dispute with him years earlier. The Petitioner had previously reported the assailant for failing to assist him with work. The assailant had made multiple threats to the Petitioner after reporting him.

    The Arbitrator found a compensable accident and awarded benefits. The Commission affirmed based on the facts that the Petitioner was not the aggressor and the evidence proving the attack was work-related and not personal. The Commission found this risk was peculiar to the Petitioner’s employment and not one shared by the general public.

    Breitbarth v. Pepsi, 27 ILWCLB 150 (Ill. W.C. Comm. 2019).

    The Petitioner is a truck hiker / case picker who puts cases of beverages on pallets and uses a forklift to take those pallets to a staging area. In this position, he stands on his feet between 2-12 hours per day, working 50-70 hours per week. The Petitioner was diagnosed with plantar fasciitis and tarsal tunnel syndrome in his feet.

    The Arbitrator denied benefits indicating that the Petitioner failed to prove a compensable condition. He based his denial on the fact there was no medical evidence supporting causation and the initial medical histories did not indicate a work injury. He also relied on the Respondent’s expert who opined that plantar fasciitis is degenerative and can only be caused by cumulative trauma with high impact activities, which the Petitioner did not do at work. The Commission affirmed and adopted the Arbitrator’s opinion.

    Download the full report.

  • 09/30/2019 12:04 PM | Judy Pfeiffer (Administrator)

    Status of Employment:  

    Oleksy v. WK Heating Inc., 27 ILWCLB 122 (Ill. W.C. Comm. 2018). 

    Petitioner sustained injuries while working for respondent, who installed and maintained heating and cooling systems. Respondent paid petitioner with checks made out to the business owned by petitioner.  Petitioner received a Form 1099 with no taxes or Social Security deducted from his pay.  Respondent instructed petitioner to take out workers’ compensation insurance through his own corporation and there was no written contract between petitioner and defendant.  Respondent claimed he paid petitioner per unit installed, while petitioner claimed he received payment on an hourly basis.  Respondent provided blueprints, but respondent did not dictate or control the way petitioner installed the furnaces.  Petitioner used job materials provided by respondent. Petitioner did not receive paid time off, vacation, or health insurance from respondent. The Arbitrator found that the claimant failed to prove an employer/employee relationship with the respondent.   

    Petitioner appealed to the Commission and the majority affirmed and adopted the Arbitrator’s decision.  Commissioner Tyrrell dissented, finding that respondent paid petitioner an hourly wage, he did not have experience in the HVAC business, and defendant exercised control over the petitioner’s work. Further, Commissioner Tyrrell found respondent’s testimony “patently absurd” that he had no employees, only independent contractors.  


    Arising Out of Employment: 

    Stadelbacher v. Choate Mental Health,27 ILWCLB 123 (Ill. W.C. Comm. 2018). 

    Petitioner worked as a public service administrator and training director at respondent’s mental health facility.  At the end of her workday, she left the employee lounge through an exit-only door with the most direct path to the parking lot. She climbed several steps to a concrete slab, and then walked onto a grassy area where she stepped into a hole and injured her left knee. Another exit existed from the employee lounge directly to the staff parking area, but it required a longer walk due to a retaining wall.  The arbitrator found that petitioner’s injury arose out of her employment and awarded benefits to petitioner, distinguishing the facts from the Illinois Appellate Court’s decision in Dodson v. Industrial Commission.  The arbitrator noted there clearly was a defective area with a deep hole that caused petitioner’s knee injury, while no such defect existed in Dodson.  Furthermore, the exit petitioner used was marked with an exit sign in the employee lounge, which indicated it was a designated exit.  This exit also seemed to be the general path all employees took who left by that door.   

    Respondent appealed and the majority of the Commission affirmed and adopted the opinion of the arbitrator.  Commissioner Coppoletti dissented, finding that petitioner’s accident did not arise out of her employment.  In her dissenting opinion, Commissioner Coppoletti argued that petitioner utilized an unsafe path for her own convenience even though respondent provided a safe route. 

    Tindall v. Illinois, State of/Menard Correctional Center, 27 ILWCLB 124 (Ill. W.C. Comm. 2019). 

    Petitioner, a correctional supply supervisor at the prison, sustained injuries to his right shoulder and hand when he fell forward while traversing stairs.  After he arrived for his shift, he walked up a flight of stairs on the outside of a door already open.  Petitioner then turned around to walk down a flight of stairs that led to his office.  He carried a cup of soda in his right hand and keys in his left hand. While trying to locate the key to his office door, petitioner caught his toe on one of the steps and fell forward.  His testified his office door was locked for security reasons and he had a cup of soda in his hand as there was no water fountain near his office.  The arbitrator awarded benefits to petitioner, finding he was exposed to an employment risk to which the general public is not exposed, even though a fall while traversing stairs is usually a neutral risk.  Although there was no testimony about whether the general public used the stairs, the arbitrator inferred that the stairs were not open to the general public since the stairs were in a prison.  Further, he did not have a water fountain near his office, so it was necessary for him to have a cup of soda in his hand.  His accident arose out of his employment.  

    Respondent appealed to the Commission.  The Commission majority affirmed and adopted the decision of the arbitrator. Commissioner Simpson dissented, stating there was no evidence the stairs were defective or dangerous and petitioner did not have to use the stairs excessively in the course of his employment.  As a result, Commission Simpson found the risk of falling unrelated to petitioner’s employment.  

    Read the full report.

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