WCLA Case Law Summaries


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  • 06/28/2021 7:20 AM | Judy Pfeiffer (Administrator)
    I.  Common Body Movements

    Peterson v. Toltech Plumbing, 29 ILWCLB 56 (Ill. W.C. Comm. 2021) – 21 IWCC 0095

    The petitioner sustained an injury after changing a water meter in a customer’s basement.  After completing the project, the petitioner moved his tool bucket to a chair and sat down. While holding the channel locks in this left hand, he leaned over to put his tools in the bucket when the chair went backwards causing him to move forward and grab the arm rest to catch his balance.  As a result of the fall the petitioner felt a tear in his shoulder.  The petitioner testified that he sat in a chair. His supervisor  testified that it was common for plumbers to use assistive devices, such as a chair to perform their jobs.  The Arbitrator found that the petitioner sustained a compensable injury.

    The Commission affirmed and adopted the decision of the Arbitrator.  The Commission specifically noted that since the Arbitrator’s decision, the Illinois Supreme Court issued its decision in McAllister v. Ill. Workers’ Comp. Comm’n.  The Commission adopted the decision of the Arbitrator but sought to provide a new analysis consistent with the holding set forth in McAllister.  The Commission stated that McAllister explained that the first step in a risk analysis is to determine whether the petitioner’s injuries arose out of an employment-related risk.  McAllister provided that a risk is distinctly associated with the petitioner’s employment if at the time of the occurrence, the employee was performing (1) acts instructed to perform by the employer; (2) acts they had a common-law or statutory duty to perform; or (3) acts that the employee might reasonably be expected to perform incidental to assigned duties.  McAllister stated that the court in Caterpillar Tractor provided the proper test for assessing whether an injury arises out of employment when the petitioner is injured performing job duties involving common bodily movements or routine everyday activities.  The Commission stated that the holdings in  Sisbro and Caterpillar Tractor made it clear that common bodily movements and everyday activities were compensable and employment related if the common bodily movements resulted in an injury and had its origin in some risks connected with or incidental to employment so as to create a causal connection between the employment and the accidental injury. 

    The Commission noted the petitioner provided credible testimony, which was corroborated by his supervisor, that his job duties included putting tools in his bucket and he was required to use a chair to perform his job duties.  The Commission noted that sitting in the chair to put away tools was incidental to the petitioner’s assumed duties and therefore, the injury was due to a risk distinctly associated with his employment.  The Commission further found the petitioner was a travelling employee at the time of his injury since  he had to travel away from his employer’s office to install meters. The Commission noted use of the chair and putting away his tools were reasonable and foreseeable.

    Commissioner Coppoletti dissented with Commissioner’s Mathis and Parker in this decision, relying on the Appellate Court decision of Noonan v. Illinois Workers’ Compensation Commission.  In Noonan,   the injured worker sustained an injury while bending over to pick up a dropped pen when his chair rolled out from underneath him.  The Appellate Court found that the accident did not rise out of employment., The Court relied on the same risk analysis subsequently adopted by the Illinois Supreme Court in McAllister.  The Appellate Court noted that the act of reaching to the floor while sitting in a chair was not required by the injured workers’ job duties. 

    II.  Increased Risk

    Eskridge v. Chicago Board of Education. 29 ILWCLB 57 (Ill. W.C. 2021), 21 IWCC 0111

    The Commission reversed the decision of the Arbitrator and found that the petitioner sustained an accidental injury which arose out of and in the course of her employment.  The Commission provided further analysis with regard to fall injuries.  The Commission noted that  a causal connection needs to be made between the fall and some risk incidental to or connected with an activity the injured workers must perform to fulfill their duties.  Petitioners are required to present evidence supporting a reasonable inference that their fall stemmed from a risk related to their employment.  Walking up a set of stairs does not, by itself, expose an injured worker to a risk greater than the general public.  The Commission found the petitioner presented evidence of a risk incidental to her employment.  The Commission noted that the stairs the petitioner walked up were not “average” stairs.  The stair were cement, worn, uneven, and lacked treading.  There were 25 steps.  The petitioner  was required to traverse the stairs in order to sign in and out. The Commission relied on Elliot v. Industrial Commission and Ervin c. Industrial Commission in finding that  an idiopathic fall is compensable if the employment significantly contributed to the injury by placing the employee in a position which increases the dangerous effects of the fall.    The Commission found that the stairs increased the petitioner’s risk of injury.  Therefore, her accident arose out of her employment.

    The Commission further found causal connections between the petitioner’s right knee and lower back conditions.  The Commission relied on the testimony of the treating provider over that of the IME physician.  The Commission awarded prospective medical care and TTD from January 20, 2011 through September 9, 2018.
    III.  Employment-Related Risk

    Novak v. MVP Plumbing, 29 ILWCLB 58 (Ill. W.C. 2021) 21 IWCC 0090

    The petitioner was a 61-year-old plumber foreman, who injured his right knee as a result of traversing staircases multiple times, while carrying tools and equipment weighing up to 70 pounds.  His treating physician recommended he undergo a total knee replacement.  The petitioner’s expert, Dr. Tonino agreed that the procedure would be appropriate, and opined his stair climbing aggravated his pre-existing condition. Respondent’s retained expert, Dr. Lieber, opined the petitioner had reached MMI a few weeks after the incident and that his knee symptoms were causally related to his prior knee conditions.  The Arbitrator found the opinions of Dr. Tonino more persuasive than those of Dr. Lieber, and awarded 16 weeks of TTD, unpaid medical bills, and prospective care in the form of the total knee replacement. 

    The Commission affirmed the decision of the Arbitrator but stated that after the initial Arbitrator decision was rendered and oral arguments presented to the Commission, the Supreme Court issued the decision of  McAllister v. Illinois Workers’ Compensation Commission.   The Commission utilized the arising out of analysis set forth in McAllister.  The Commission noted that  the petitioner’s injury occurred when he traversed stairs while carrying heavy tools and equipment.  The petitioner was performing job duties which were incidental to his assigned duties and was an act which his employer would have reasonably expected him to perform.  The Commission affirmed the Decision of the Arbitrator finding that the Petitioner’s injury arose out of his employment because it was caused by a risk distinctly associated with his employment.

    IV. Repetitive Conditions

    Reece v. Illinois State University, 29 ILWCLB 59 (Ill. W.C. Comm. 2021) 21 IWCC 0093

    The petitioner filed three applications for adjustment of claim with three different dates of accident all involving allegations of bilateral carpal tunnel syndrome caused by repetitive trauma.  The petitioner worked as a food service sanitation laborer with the respondent for approximately 12 years.  The position required the petitioner to load and unload a dishwasher, spray dishes and pots and pans before going into the washer, lifting dishes and pots and pans, sweeping, mopping, taking out the trash, cleaning ovens, fryers, walls, shelves and char broilers, and cleaning out the freezers.  The petitioner testified that she  used both hands to perform these tasks.  She was required to use both hands to forcefully grip the sprayer.  The petitioner testified that she hand washed industrial sized pots and pans, which weighed 7-10 pounds.  She hand washed the pots by forcefully scrubbing them.  The petitioner reported pain in both hands while performing her work duties that required gripping and grasping.  She was diagnosed with bilateral carpal tunnel syndrome and underwent surgery.

    Arbitrator Granada found that the petitioner met her burden and established that she sustained a compensable repetitive trauma accident.  The petitioner also established that she provided timely notice of the accident, and that the bilateral carpal tunnel syndrome was causally connected to the work-related accident.  Arbitrator Granada found the testimony of the petitioner’s treating physician persuasive and that the testimony supported the fact that petitioner was engaged in repetitive work activities requiring the use of both hands for an extended period of time.  Further, the petitioner was required to forcefully grip or hold items, which  contributed to aggravating her bilateral carpal tunnel syndrome and caused the eventual need for surgery.  The IME Physician opined that the petitioner’s job did not require any of the factors he believed would cause carpal tunnel, which included forceful gripping/pinching, awkward hand positioning for extended periods of time, or vibration.  The IME physician relied on the petitioner’s increased risks of obesity, gender, and smoking.  Arbitrator Granada relied on the medical records, which did not show any pre-existing issues that kept the petitioner off work or medical diagnoses prior to her February 16, 2017 diagnosis.  He noted the IME physician was not provided a fully accurate picture of the physical requirements of the petitioner’s job duties.  PPD was awarded for 7.5% loss of use of each arm, lost-time benefits, and payment of outstanding medical charges.

    The Commission affirmed and adopted the decision of the Arbitrator.

    V. Preexisting Injuries

    Buffano v. Fred Groves Servicenter d/b/a Fred Groves, 29 ILWCB 60 (Ill. W.C. Comm. 2021)

    The petitioner worked as a mechanic.  He had certificates in auto, air, and welding.  The petitioner was test driving a customer’s vehicle when he was rear-ended by another vehicle.  He testified he had no pain when the vehicle was struck, but noticed pain in the shoulder, headache, and nausea when he got home. The petitioner subsequently reported neck pain and shoulder pain.  The medical records revealed that the petitioner previously received medical treatment for his cervical spine pre-dating his date of accident with the Respondent and the petitioner had not plateaued in his care at the time of the May 4, 2012 auto accident. 

    The Arbitrator found that the left shoulder and cervical spine conditions were not causally connected to the work-related motor vehicle accident.  The Arbitrator relied on the prior records and the fact no neck pain was mentioned until 10 days after the date of accident. 

    The Commission reversed the decision of the Arbitrator in part and affirmed in part. Specifically, the Commission reversed the Arbitrator’s denial on the issue of causation with respect to the petitioner’s cervical spine condition.  The petitioner had pre-existing cervical spine treatment that was ongoing prior to the May 4, 2012 motor vehicle accident at work.  Just one day prior to the accident, the petitioner’s treating physician noted the petitioner’s condition had not yet plateaued.  The Commission noted that  treatment records from four days after the accident documented that the petitioner complained of discomfort and concerns of whiplash.  He was subsequently diagnosed with cervical facet syndrome and a sprain.  The petitioner’s current therapy was put on hold in order to reevaluate the neck condition.  The Commission found there had been a change in the Petitioner’s condition of the neck, which necessitated diverse treatment from what the petitioner had been receiving pre-accident and that the accident was the provocateur for the change. Reasonable and necessary medical expenses for the neck through September 6, 2012 were also awarded and permanent disability for 2.5% loss of use of a person as a whole. 

    VI. Assaults

    Restrepo v. Elite Staffing Inc., 29 ILWCLB 61 (Ill. W.C. Comm. 2021) – 21 IWCC 0109

    The petitioner was employed by Elite Staffing as a line cook at the Summer House Santa Monica restaurant on September 29, 2015.  The petitioner was collecting buckets of water to clean his station.  Another co-worker was also beginning to clean his station at the same time. The petitioner testified that he accidentally spilled water on his co-worker when he was dropping water to clean his station.  The co-worker verbally responded to the petitioner and tried to hit the Petitioner with a fryer basket but did not touch the petitioner while inside of the restaurant.  The co-worker eventually followed the petitioner outside while the petitioner was walking to an outdoor storage unit and hit the petitioner in the face.  The co-worker began to kick the petitioner.  The petitioner sustained injury to his right ankle. The petitioner was terminated from Elite Staffing and subsequently gained employment as a restaurant manager elsewhere.  The new employment required the petitioner be on his feet for 9 hours a day.

    The co-worker testified at hearing.  He testified that on the date of the accident, the petitioner emptied a bucket of water on the co-worker’s shoes and then dumped two additional buckets of water on the co-worker.  The co-worker testified that the act was intentional on the part of the petitioner and that the petitioner was trying to start a fight. He testified that he asked the petitioner if he had a problem and the two agreed to go outside.  It was the co-workers’ impression that the petitioner went outside to fight and he felt forced to go outside with the petitioner.  He testified that in the alley, he pushed the petitioner and the petitioner threw several punches at him.  The co-worker punched the petitioner, who fell to the ground. He testified that the petitioner continued to throw punches, but he hit the petitioner one more time and left. 

    The petitioner’s manager testified that the petitioner told him immediately following the incident that he purposefully splashed the co-worker.  He further testified that the petitioner went outside to fight his co-worker. 

    Arbitrator Harris found that the petitioner failed to prove that an accident occurred arising out of and in the course of his employment with the respondent on September 29, 2015.  The petitioner’s claim for compensation was denied.  Arbitrator Harris concluded that the claimed accident did not arise out of and in the course of employment because the petitioner was the aggressor of the altercation.  The altercation negates all causal connection between the work and the injury and the petitioner took himself out of the scope of his employment by initiating the altercation on work premises.  Moreover, the altercation was not proven to be based on a work-related reason.  Arbitrator Harris relied upon the 2004 Illinois Supreme Court decision of Franklin v. Industrial Comm’n. The Court held that fights arising from a purely personal dispute do not arise out of employment.  The Court further stated that injuries to the aggressor in such a fight are not compensable. 

    Arbitrator Harris denied the claim under both theories.  The Arbitrator found that the petitioner was the aggressor and that the basis of the dispute was not work related.  He further noted the “aggressor defense’ applied only when the petitioner’s conduct negated the causal connection between the employment and the fight and the issue of who made the first contact is important, but not decisive.  A petitioner’s conduct must be judged in the light of the totality of the circumstances.  He found the petitioner was less credible than the co-worker and his manager.   He found the Petitioner to be the aggressor for dumping water onto the co-worker and voluntarily entering the alley first to start the fight.  Arbitrator Harris also relied on testimony that employees were not allowed to be in the alley and that the Petitioner left the employer’s premises when he entered the alley. 

    The Commission affirmed and adopted the decision of the Arbitrator.  The Commission corrected various clerical errors as well as correcting the case caption to read “Elite Staffing, Inc. and Summer House, a subsidiary of Lettuce Entertain Your Enterprises. Inc.”

    VII. Previous Settlement

    Nunez v. Chicago Transit Authority, 29 ILWCLB 62 (Ill. W.C. Comm. 2021) 21 IWCC 0096

    The petitioner is a carpenter/bus repairmen who sustained an injury to his left collarbone on June 18, 2017 when he tried to move a jammed seat.  He admitted to having left collarbone issues prior to this injury.  The petitioner settled two prior workers’ compensation cases for head, left shoulder, and left sternoclavicular conditions arising out of an October 10, 2012 work incident.  The prior claims were disputed and the petitioner was placed at full duty in February 2014 but returned to work with assistance through June 28, 2017. The Petitioner began treating with Dr. Garelick and a clavicle resection was recommended.  Settlement contracts for the 2013 claims were approved by Arbitrator Huebsch on September 28, 2017 resolving the disputed claims for $10,000.00 on a disputed based “in full and final settlement of any and call claims . . . for all accidental injuries allegedly incurred on October 10, 2012, and including any and all results, developments or sequelae, fatal or non-fatal, allegedly resulting from such accidental injuries.”   The petitioner’s Application in this instant matter was filed after the 2013 claims settlement contracts were signed and two days before they were approved by the Arbitrator.

    The respondent argued that the prior settlement barred the instant claim and alleged that the petitioner engaged in subterfuge by filing his Application in the instant case after his counsel had signed the contract for the prior claims. Arbitrator Mason rejected the respondent’s argument and noted she had no basis to conclude that the Respondent was unaware of the June 28, 2017 accident on September 15, 2017, the date the respondent’s counsel appeared to have signed the settlement contract for the 2013 claims.  She was not able to conclude that the prior settlement agreement barred recovery in the instant claim as the language described the specific event of October 10, 2012.  She noted that the respondent had enough knowledge to include the subsequent accident date of June 28, 2017 or more broadly language of “any and all accidental injuries occurring through the date of contract approval” on the contract but failed to do so.  The Arbitrator awarded TTD, unpaid medical bills and prospective care with Dr. Garelick in the form of a follow up visit and surgery if Dr. Garelick continued to recommend it.

    The Commission affirmed and adopted the decision of the Arbitrator.  Commissioner Coppoletti concurred with Commissioners’ Mathis and Tyrrell, but dissented in regards to the order for authorization of medical treatment. Commissioner Coppoletti noted ordering the respondent to authorize medical treatment was meaningless where there was no enforcement mechanism under the Act.

    VIII. Disfigurement

    Laule v. Village of Niles, 29 ILWCLB 63 (Ill. W.C. Comm. 2021) 21 IWCC 0137

    The petitioner was a patrol officer with the Village of Niles until his retirement on September 15, 2018.  He testified that he sustained a work-related injury on May 17, 2016, when he assisted in detaining three subjects trying to escape. He tackled a subject to the ground, injuring his right and left arms and his knee.  At trial, the petitioner displayed the scars he claimed were the result of the accident.  He noted a scar on his left forearm that was the size of a dime and discolored.  The Arbitrator also noted a scar on the petitioner’s right elbow that was larger, but less visible and a larger than dime sized scar on the petitioner’s kneecap. 

    Arbitrator Fruth found that the scarring on the petitioner’s arms was causally related to his work accident of May 17, 2016 and awarded two weeks of permanency for the right arm and two weeks of permanency for the left arm  He also awarded a credit to the Respondent for $132.06 for charges paid by Blue Cross Blue Shield of Illinois for medical treatment from May 23, 2016.  He noted the scarring of the right knee was not below the knee and that Section 8(c) of the act provides for disfigurement below the knee to be compensable. 

    On March 11, 2021, the parties appeared before Commissioner Flores for an agreed videoconference of the Petitioner’s disfigurement and the evidence recorded at that time was shared with the panel.  The Commission observed the points of disfigurement on the right elbow, one red and the size of a dime, with two smaller white marks, all indented.  On the left forearm, the Commission found one point of disfigurement, which was white and the size of a quarter.  Given such, the Commission modified the decision of the Arbitrator and awarded five weeks of benefits regarding the right elbow and an additional five weeks of benefits regarding the disfigurement of the Petitioner’s left forearm.  The Commission otherwise affirmed and adopted the remainder of the Arbitrator’s decision.

    IX. Percentage Loss of Use

    Heifner v. Lawrence Correctional Center, 29 ILWCLB 64 (Ill. W.C. Comm. 2021) 21 IWCC 0110

    The petitioner was a 30-year-old correctional officer with the respondent since March 2004.  The petitioner injured his right knee on January 15, 2019 when he twisted his right knee while running to respond to a service call.  The petitioner underwent a right knee arthroscopy with meniscectomy, chondroplasty of the medial femoral condyle, and chondroplasty and debridement at the patellofemoral articulation. The petitioner reached MMI on January 6, 2020. He continued to experience residual symptoms.  The doctor recommended glucosamine and chondroitin sulfate for the petitioner’s knee symptoms.   The petitioner testified to having pain and stiffness after prolonged activity after surgery and reported swelling and pain after working 16 hour mandated shifts.  He was not able to complete firearm requalification while kneeling, but was allowed to qualify while standing. 

    Respondent disputed TTD benefits from March 25, 2019 through August 6, 2019 due to the petitioner’s failure to attended two IME appointments. The petitioner testified that he confused the first date and that he failed to receive notice for the second examination due to moving to a new address. The Petitioner attended a third scheduled IME on August 6, 2019. 

    The Arbitrator awarded permanency of 20% loss of use of the right leg and unpaid TTD benefits. The Arbitrator found that the provisions of Section 12 did not apply for denial of TTD in this matter as there was no instances of refusal or obstruction, but rather credible instances of confusion of the date and not receiving notice. In assessing permanency, the Arbitrator relied on an analysis of factors set forth in Section 8.1(b).  The Arbitrator gave greater weight based on the petitioner’s younger age of 30, position as a correctional officer, and evidence of disability contained in the medical records. However, the Arbitrator noted that while there was no direct evidence of reduced earning capacity in the record, based on the severity of the injuries and testimony concerning symptoms with prolonged standing or working ling shifts, the Arbitrator found it reasonable to conclude that such repercussions may manifest in the future.  The Arbitrator accorded less weight to that factor.

    The Commission modified the Arbitrator’s decision with regard to permanent disability.  The Commission found that the Arbitrator’s analysis of the factor (iv) was flawed. The Commission noted there was an absence of direct evidence demonstrating reduced future earning capacity, but the Arbitrator opined “such repercussions may manifest in the future.”  The Commission found that language to be impermissible speculation and struck the language. The Commission found in absence of any reliable evidence of a reduced earning capacity, such weighed in favor of reduced permanent disability.  However, the Commission did not reduce the petitioner’s award for PPD for 20% loss of use of the right leg.

    Commissioner Coppoletti concurred with the decision with the exception of the award for TTD from April 30, 2019 through August 5, 2019.  She would have vacated benefits based on the petitioner’s failure to attend the rescheduled Section 12 evaluation.

    X. Credits

    Smyth v. City of Joliet, 29 ILWCLB 65 (Ill. W.C. Comm. 2021) 21 IWCC 0103

    The petitioner was a residential property inspector for the City of Joliet.  She alleged two accidents: an automobile collision on September 24, 2014 resulting in injury to the cervical spine, left knee and right shoulder and a slip and fall at a job site on January 31, 2017 in which she sustained a temporary exacerbation of her cervical condition. 

    The Arbitrator found the right shoulder condition causally connected to the September 24, 2014 incident and awarded TTD, unpaid medical bills, and authorization of all treatment recommended by treating physicians, including arthroscopic surgery to the right shoulder.  The Arbitrator also awarded a credit for $14,210.30 under Section 8(j) of the Act in “whole pay” benefits.  The Petitioner testified to being a member of the AFSCME Local 440.  The  collective bargaining agreement stated that sick leave pay may be used for illness, injury, or off the job disability with a provision that the employer pay the difference between any payments received under  the employee’s regular salary for six months.  The Arbitrator calculated that the “make whole” benefits were paid from January 27, 2015 through June 27, 2015 and totaled $14,120.30. 

    The Commission affirmed the Arbitrator’s decision as to causation, prospective medical treatment, TTD, and all credits except the make whole credit.  The Commission modified the decision of the Arbitrator with regard to the make-whole credit finding no credit should have been afforded to the respondent. The Commission found Tee-Pak, Inc. v. Industrial Comm’n of Illinois to be controlling in this matter.  The Appellate Court stated that under Section 8(j) of the act, “the employer received no credit for benefits which would not have been paid irrespective of the occurrence of a workers’ compensation accident.”  The Commission noted that the respondent failed to show that the salary payments received by the Petitioner between January 27, 2015 and June 27, 2015 were limited to employment related disabilities and therefore, the Respondent should not have been awarded the benefits representing 1/3 of the Petitioner’s salary above the TTD benefits paid for that time.  Pursuant to Tee-Pak, Inc., the respondent received no credit for benefits which would have been paid irrespective of the occurrence of a workers’ compensation accident.

    In the instant case, the respondent failed to prove that the salary payments provided to the petitioner were limited to employment-related disabilities.  Accordingly, the respondent did not prove its entitlement to the credit.  The Commission vacated the award of the credit. 

    XI. Jurisdiction

    Aureus Medical Group v. (Tyler), IWCC, 29 ILWCLB 66 (Ill. App. Ct. 3d 2021)

    The petitioner worked as a travelling nurse and received a telephone call from a recruiter for the respondent staffing company, which was located in Nebraska, offering the petitioner a position to work as an operating room nurse in South Bend, Indiana.  The petitioner sustained injuries to her right shoulder and right knee while working at the hospital in South Bend.  The petitioner subsequently filed an Application for Adjustment of Claim in Illinois.  The matter proceeded to Arbitration hearing. 

    At Arbitration, the principal issue was whether the State of Illinois had jurisdiction over the claim.  The petitioner testified that she worked as a “travelling” operating room nurse for the majority of her career.  She worked in temporary assignments at hospitals across the country. She testified that she applied for employment with the Respondent in 2016 and received a call from a recruiter for the respondent discussing a position at a hospital in South Bend, Indiana.  The petitioner was required to take a competency examination, which she completed in Lockport, Illinois.   Thereafter, the recruiter offered the petitioner the position.  However, petitioner had additional prerequisites to complete prior to beginning employment. She completed a phone interview from her home in Illinois with a representative from the hospital in South Bend, completed a drug test and physical in Illinois, completed an Indiana Nursing license application and printed such application in Illinois.  The petitioner received an email with a contract with the Respondent in Lockport, Illinois and electronically signed and forwarded the contract to the Respondent from Lockport, Illinois. She also completed a tuberculosis test in Illinois.  The petitioner received and completed a modification agreement from Lockport, Illinois.  The petitioner had to have a copy of her bachelor’s degree transcript mailed to the licensing authority, which was conducted from Illinois.  After receiving her Indiana nursing license, the petitioner began working at the hospital in South Bend, Indiana.  

    The Arbitrator found Illinois had jurisdiction because the last act necessary to give validity to the contract for hire occurred in Illinois.  The Arbitrator determined that the last act necessary to form a contract of hire occurred when the Petitioner accepted the contract by typing her name and transmitting the document from Illinois. 

    The Commission affirmed and adopted the decision of the Arbitrator.  The circuit Court of Will County confirmed the Commission’s decision.  The Appellate Court affirmed the decision in an unpublished opinion.

    The respondent challenged Illinois’ jurisdiction and argued that after the contract was signed, there were multiple conditions precedent to give validity to the contract for hire and that the last act to give validity was obtaining an Indiana nursing license, which occurred in Indiana.  The Appellate Court determined that Illinois exercised jurisdiction over the claim since the contract for hire was made in Illinois.  The Appellate Court stated that a contract for hire is made where the last act necessary to give validity to the contract occurred.  The Court applied the manifest weight of the evidence standard of review. In this case, the Appellate Court could not say the Commission’s conclusion that the Petitioner signing the contract and submitting the contract to the Respondent while in Illinois was the last act necessary to give validity to the contract for hire was against the manifest weight of the evidence.

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  • 05/14/2021 7:19 AM | Judy Pfeiffer (Administrator)

    I.        ARISING OUT OF EMPLOYMENT

    Nicole Weston v. State of Illinois, Department of Children and Family Services, 17 WC 08811, 21 IWCC 0070 (February 18, 2021)

    Respondent hired Petitioner on January 30, 2017.  She was required to attend an orientation program that ended on March 1, 2017.  Petitioner testified that she was directed to park in the lot in front of the building or a second parking lot close to Respondent’s building.  On the date of the accident, Petitioner was wearing rain boots with decorative shoelaces.  At lunchtime, she left the Respondent’s building to go to her car to get her lunch.   While doing so, her shoelace got caught in the sidewalk causing her to fall and injure her right knee. 

    The Arbitrator denied the case based on accident.  He held that the evidence submitted did not establish that the Respondent owned, maintained, or controlled the sidewalk where Petitioner fell.  Further, he explained that even if she could prove “in the course of” of component, Petitioner failed to prove her accident “arose out of” her employment because the risk of getting her shoelace caught in the sidewalk is not a risk incidental to her employment.  Because Arbitrator found no accident, he denied all other benefits.  The Commission affirmed and adopted the Arbitrator’s decision.

    II.                  ACCIDENTAL INJURY

    Jocelyn Cahill v. City of Chicago, 15 WC 11742, 21 IWCC 0057 (February 8, 2021)  

    Petitioner worked for Respondent as a 911 operator and first responder for 15 years.  Her duties included receiving emergency calls and documenting information on a computer, which required repetitive typing and the use of a touch screen.  Petitioner testified she did not have an ergonomic keyboard and had a faulty mouse at her work station. 

    Petitioner developed bilateral carpal tunnel syndrome.  She began treatment with Dr. Blair Rhode.  Dr. Rhode considered her work station, number of calls received, and preexisting risk factors.  He opined that Petitioner’s diagnosis was causally related to her job duties.  Dr. Rhode acknowledged a debate in the medical community with respect to repetitive typing causing carpal tunnel, but explained that Petitioner’s work with Respondent was “high exposure” which would create a causal relationship between her job duties and diagnosis.

    Respondent arranged an Independent Medical Examination with Dr. John Fernandez.  Dr. Fernandez reviewed medical records, a job description, and a “job video” of her work station.  Based on this information, he opined that her bilateral carpal tunnel was not causally related to her job duties.  He opined that her duties did not include flexion of the hands or physical gripping or grasping necessary to cause carpal tunnel syndrome. 

    The Arbitrator found Dr. Fernandez to be more credible.  The Arbitrator denied the case based on accident.  On appeal, the Commission reversed, finding Petitioner sustained a compensable accident.  The Commission explained that Dr. Fernandez’s opinion did not consider the frequency or force required for Petitioner’s job duties, which Dr. Rhode considered in his opinion.  Lastly, the Commission explained that the Respondent takes it employees as it finds them and even if Petitioner had some risk factors that contributed to her diagnosis, her job duties were a cause in her diagnosis and condition of ill-being and a finding of accident and causation was proper.

    McWilliams v. Rockford Mass Transit District, 12 WC 22502, 21 IWCC 0064 (February 17, 2021)

    Petitioner filed a repetitive trauma claim for bilateral carpal tunnel syndrome to his hands and wrists allegedly resulting from his duties as a bus driver.  Petitioner testified that he worked as a bus driver for the Respondent for 20 years.  In this capacity, he used his hands and wrists extensively by operating the steering wheel, opening and closing the door with handles and levers, and using levers and gauges to adjust ramps and signs.  Petitioner also testified there were often vibrations from the roads and potholes.  Petitioner produced a video of his job duties, which was admitted into evidence at trial.

    Petitioner presented to his treating physician in January of 2012.  At that time, there was mention that he had a known history of bilateral carpal tunnel syndrome.  However, he had not actively treated for several years.  His physician diagnosed probable bilateral progressive carpal tunnel syndrome.  Petitioner presented to another specialist, Dr. Brian Bear, who agreed with the diagnosis of work related bilateral carpal tunnel syndrome and performed bilateral carpal tunnel releases.

    Respondent arranged an Independent Medical Examination with Dr. Bryan Neal.  Dr. Neal attended a demonstration of Petitioner’s job duties of a bus driver, reviewed his medical records, and reviewed the video produced by Petitioner.  He opined that his bilateral carpal tunnel diagnosis was not causally related to his job duties. 

    The Arbitrator found that Petitioner did not sustain his burden of proving that a repetitive trauma accident caused his bilateral carpal tunnel syndrome.  The Arbitrator found Dr. Neal’s opinion more persuasive concluding that he had a better understanding of Petitioner’s work duties. 

    On review, the Commission reversed.  The Commission found Dr. Bear more persuasive because he reviewed Petitioner’s job description and his opinion was supported by other physicians.  The Commission also relied heavily on Greater Peoria Mass Transit District, which had a similar fact pattern to the instant case and found that carpal tunnel syndrome can be aggravated by the occupational duties of a bus driver.  Based on this, the Commission found that Petitioner sustained an accident that arose out of and in the course of his employment and his condition was causally related to the accident.  The Commission awarded TTD benefits, medical bills, and permanency.

    III.     CAUSAL RELATIONSHIP

    Regina Damm v. State of Illinois / Chester Mental Health Center, 18 WC 6363, 21 IWCC 0050 (February 3, 2021)

    Petitioner worked a security therapy aide for the Respondent.  On the date of the accident, Petitioner tried to prevent a patient from leaving his room.  The patient attacked Petitioner when she tried to stop him from leaving the room.  Petitioner testified that she injured her head, neck, back, and left elbow in the accident. 

    She began extensive treatment for her back and neck.  Petitioner testified that prior to the accident she had been treating for her neck and back, requiring chronic pain medications and multiple cervical MRIs.  She testified that after the accident, her symptoms worsened and changed.  Her treating physician recommended a cervical disc replacement surgery. 

    The Respondent arranged an Independent Medical Examination with Dr. Chabot.  Dr. Chabot opined that her neck and back conditions were preexisting and not causally related to the work accident. 

    The Arbitrator found that Petitioner’s neck and back injuries were causally related to her work accident and awarded medical bills, TTD, and prospective treatment as recommended by her treating physicians.  The Arbitrator found that although she had preexisting conditions, she was working full duty for the Respondent until the date of injury and there had been no prior surgical recommendations. 

    The Commission affirmed the Arbitrator’s finding of causation to her back, but reversed the finding to her neck, holding that she did not prove her neck was causally related to the work accident.  The Commission reasoned that her prior treatment was so severe she had a cervical MRI two months before her work accident.  Further, they did not find any evidence in the record to support Petitioner’s testimony that her symptoms changed following the accident.  Since they did not find causation to the neck, they also reversed the reward for prospective medical for her neck and remanded to determine TTD owed and a permanency award. 

    Cherry Bell v. Automotive Club of Southern CA, 17 WC 2772, 21 IWCC 0059 (February 9, 2021)

    Petitioner worked for the Respondent as an insurance agent, selling home and auto policies.  She created policies that would then be submitted to a superior for review.  Petitioner testified that she began to have difficulty at work, feeling that she did not have adequate training, felt bullied, and the work environment was hostile.  She testified that her superior purposefully deleted her work to get her in trouble and sabotage her success.  She began treatment for emotional trauma and was diagnosed with anxiety and depression.

    At trial, Petitioner testified that she did not have any other stressors at home.  However, she did have a pending civil lawsuit against a contractor for unsatisfactory home repairs.  Petitioner had also been hospitalized for suspected carbon monoxide poisoning. 

    Respondent called several witnesses to rebut Petitioner’s testimony.  Her superior denied Petitioner’s allegations of deleting her work and testified it was not possible for her to do so.  They also submitted several emails from Petitioner to Respondent.

    The Arbitrator found that Petitioner did not prove that she sustained an accident that arose out of and in the course and scope of her employment.  He explained that Petitioner failed to prove her mental disorder arose from a situation of a greater dimension than day to day emotional strain and tension that all employees face, as required by Pathfinder.  He did not find any evidence of deleted emails or bullying by Respondent and no proof of sudden and severe work-related emotional shock traceable to a definite time and place to justify benefits.  Based on this, he denied accident.  The Commission affirmed the Arbitrator’s decision in its entirety.

    David Duffin v. City of Chicago, 16 WC 17014 & 17 WC 873, 21 IWCC 0001 (January 4, 2021)

    Petitioner worked as a hoisting engineer for Respondent.  He sustained two separate work injuries to his neck while working.  The first injury was on April 13, 2016 while operating a backhoe.  The second injury was on December 15, 2016 while lifting a propane tank. 

    Prior to April 13, 2016, Petitioner had undergone a lumbar fusion, but returned to full duty work for Respondent.   Petitioner never received treatment to his neck prior to April 13, 2016.  After these accidents, he was diagnosed with several cervical herniations.  He received injections.  Ultimately, the physician recommended that he under a cervical fusion and an FCE.

    Respondent arranged an IME with Dr. Daniel Troy.  Dr. Troy did not review any prior records or Petitioner’s prior FCE.  He agreed that Petitioner did not have any cervical complaints prior to this injury.  He also agreed that a fusion was reasonable and necessary treatment.  However, he opined that Petitioner’s condition was degenerative and not causally related to the work accidents.

    The Arbitrator found that Petitioner’s condition of ill-being was causally related to the work injuries.  He reasoned that the chain of events proved causation since Petitioner was asymptomatic and working full duty prior to these accidents.  Further, all doctors agreed he did not treat for his neck prior to these injuries.  Based on this, the Arbitrator awarded prospective medical, medical bills, TTD benefits, and penalties.  The Commission affirmed. 

    Paula Apeles v. Graphics Packaging, 14 WC 27826, 21 IWCC 0026 (January 15, 2021)

    Petitioner worked for Respondent as a machine operator.  One day, she tripped and fell over a box injuring her left elbow, shoulder, and hip.  She later complained of pain to her neck and back.  Respondent disputed causation to her neck and back. 

    Prior to this injury, Petitioner had a cervical discectomy and fusion.  When she first began treatment for this accident, she did not mention neck or back pain complaints.  Petitioner testified she did not mention the pain to her neck and back because she thought it would go away.  Petitioner had a post-op appointment with her doctor who performed her fusion and did not mention a work injury. 

    The Arbitrator found that Petitioner failed to prove that her current condition of ill-being to her neck and back was causally related to her work injury.  He found it significant that Petitioner did not mention injuries to her neck and back after the accident or to her prior doctor.  Further, the medical records did not prove any aggravation to her prior injuries.  The Commission affirmed.

    IV.     EMPLOYEE IMPROPER CONDUCT 

    Antonio Reid v. City of Chicago, 14 WC 34954, 21 IWCC 0067 (February 18, 2021)

    Petitioner works for Respondent as a construction laborer.  He was driving a vehicle issued by the Respondent when he was hit by an 18-wheeler truck.  Petitioner injured his right thumb, neck, back, and right shoulder. 

    Petitioner took a drug test on the date of the accident.  He tested positive for marijuana.  Petitioner testified that he was “exposed to marijuana” two weeks prior to the accident and was not impaired on the date of the accident.  Respondent admitted a single page drug test at trial, but submitted no evidence rebutting Petitioner’s testimony regarding impairment.

    At trial, the Arbitrator found that the Petitioner sustained an accident that arose out of and in the course and scope of his employment and awarded medical bills and a permanency award.  The Arbitrator held that although Section 11 of the Act creates a rebuttable presumption that an employee’s injury is not compensable if there is a positive drug test, no presumption arises by mere evidence of consumption of cannabis without evidence of impairment due to consumption of an illicit substance.  As Petitioner testified he was not impaired and Respondent did not rebut at trial, the Arbitrator found he was not impaired and the presumption did not apply to the instant case. 

    The Commission affirmed the finding of accident and causation, but modified the decision regarding the medical bill award.  The Commission agreed with the Arbitrator’s analysis and further added that the police officer only issued a ticket for the semi-truck driver that struck Petitioner and did not issue Petitioner a citation on the date of the accident, further supporting he was not impaired.  As such, there was no proof of impairment to trigger the Section 11 intoxication presumption.  

    V.      CALCULATION OF PREINJURY WAGES

    Jeffrey Turner v. State of Illinois / Choate Mental Health Center, 18 WC 24533, 21 IWCC 0079 (February 26, 2021)

    Petitioner worked for Respondent as a mental health tech II.  Petitioner testified that on the date of the accident, he parked in a lot several feet away from Respondent’s building that was maintained by Respondent.  After parking his vehicle, Petitioner turned to walk into Respondent’s building and slipped and fell on ice injuring his mouth, chin, and teeth. 

    Regarding his wages, Petitioner testified that he normally worked 37.5 hours per week and also worked overtime every week.  He testified that overtime from the Respondent was both voluntary and mandatory.  He testified that most of his overtime was mandatory.

    Respondent’s timekeeper testified at trial.  She testified that 90% of Petitioner’s overtime was voluntary.  She also testified that his overtime was not consistent and was not the exact same overtime every day. 

    The Arbitrator found accident and awarded medical bills, TTD benefits, and a permanency award.  In calculating wages, the Arbitrator held that Petitioner established that he consistently worked a number of overtime hours each week and because he worked overtime every week in the 52 weeks prior to his injury, the Arbitrator included his overtime wages in his AWW calculations.  

    The Commission affirmed the Arbitrator’s holding but reversed the inclusion of overtime wages in the AWW calculation.  It explained that it relied on the Appellate Court’s holding in Airborne Express, which required a set number of overtime hours per week in order to be included.  Since overtime was not set and Petitioner sporadically volunteered for overtime, it was not consistent and mandatory and is therefore excluded in AWW calculations. 

    VI.     TEMPORARY TOTAL DISABILITY BENEFITS

    Patrick Sanko v. Aldridge Electric, Inc., 17 WC 004978, 21 IWCC 0010 (January 8, 2021)

    Petitioner injured his right foot on November 9, 2016 while working for the Respondent.  While treating for his injury, he was placed on light duty work.  Petitioner testified that while on light duty, he would work one to two days per week, but would still be paid for a full 40 hour work week.  He worked light duty through April of 2017.  He then remained off through the date of trial in 2019.

    There was conflicting testimony in the record regarding Petitioner’s return to work.  Petitioner testified that his supervisor told him to stop working and to “go get workers’ compensation” in April of 2017.  His supervisor testified that he offered Petitioner light duty work, but Petitioner refused.  The supervisor testified Petitioner was then terminated.

    The Arbitrator found Petitioner’s testimony more credible than the supervisor’s testimony and awarded TTD benefits through the date of trial.  The Arbitrator held that since Petitioner’s condition had not yet stabilized because he was still treating and the Respondent never contacted him to return to work, he was still entitled to TTD benefits.  The Commission affirmed and adopted the Arbitrator’s decision. 

    Daniel McAleer v. Exxon Mobil, 11 WC 1305, 21 IWCC 0009 (January 8, 2021)

    The case proceeded to trial on two separate occasions.  In the first trial, the Arbitrator found Petitioner’s right shoulder, arm, and hand injuries were causally connected to the work related accident, but did not find that the neck, back, left arm, and wrist conditions were causally related.  The instant trial was to determine ongoing causation to Petitioner’s right shoulder, TTD benefits, and nature and extent. 

    Following the first trial, Petitioner continued to treat for his right arm and unrelated neck injuries.  He underwent two shoulder surgeries and pain management for his neck.  Petitioner completed a FCE after his first shoulder surgery, which placed him at the medium-heavy category of no lifting over 20 pounds.  He never completed another FCE after his second shoulder surgery.  Petitioner testified he had not returned to work in his pre-injury capacity. 

    The Arbitrator found causation and awarded TTD benefits through May 1, 2017, the date of trial.  On review, the Commission modified the TTD benefit award.  They found the MMI date to be October 20, 2016, the last date of treatment with his pain management doctor.  The Commission reasoned that the FCE was no longer valid and the last visit from the pain management doctor was the MMI date even if most of the treatment was for the non-related neck treatment.  The rest of the decision was affirmed.             

    Editor’s Note – this case is currently on appeal to the Circuit Court of Cook County 2021L050062.

    VII.     COMPUTATION OF AWARDS

    Claudio Marchese v. City of Chicago, 11 WC 020577, 21 IWCC 0049 (February 2, 2021)

    Petitioner is a 56 year old foreman lineman for Respondent.  On June 18, 2010, he injured his neck and shoulders after prying off a lid to a 200 pound manhole cover.  He treated conservatively and was released to full duty on August 4, 2010.  He worked full duty with the Respondent until his retirement on January 31, 2011.  Subsequently, he experienced more pain and underwent surgeries to his shoulder and neck.  Petitioner currently works for a union hall and has been released from treatment. 

    The Arbitrator found that Petitioner’s current condition of ill-being regarding his shoulder and neck was causally connected to the work related accident.  However, the Arbitrator denied TTD benefits reasoning that Petitioner voluntarily removed himself from the workforce and was not entitled to receive TTD benefits.

    On appeal, the Commission held that Petitioner was entitled to receive TTD benefits.  It reasoned that this case was similar to the facts in Land & Lakes where the Court held that Petitioner did not retire by choice, but was forced to retire prematurely because he was no longer able to physically perform his job for Respondent.  Similarly here, there is no evidence in the record that Petitioner chose not to work even though he could have returned to work.  The Commission held that Petitioner’s choice to retire was not voluntary.  Accordingly, Petitioner was entitled to receive TTD benefits through his full duty release after his shoulder and neck surgeries, which occurred after he retired. 

    VIII.    PERMANENT DISABILITY BENEFITS

    IX.       MEDICAL & REHABILITATION  BENEFITS

    X.        BENEFIT PAYMENT PROCEUDRES

    XI.      HEARING LEVEL PROCEDURES

    XII.     EVIDENCE

    XIII.     INJURED WORKERS’ BENEFIT FUND


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  • 04/26/2021 6:42 AM | Judy Pfeiffer (Administrator)

    I.                   STATUS OF EMPLOYMENT

    Cuello v. Tran, 18 WC 34394, 21 IWCC 0002 (IWCC January 4, 2021)

    This matter proceeded to hearing before the Commission pursuant to a Section 4(d) claim. Petitioner sustained injuries to his foot on September 11, 2018 after he fell from a ladder while working on a remodeling project under the direction of Respondent, Forest2000.  Petitioner testified he worked for Respondent in the Spring of 2018. They agreed he would be paid cash until checks could be arranged, although he only received cash through the duration of his employment, and he was paid hourly and not per project.  Petitioner did not complete a W-4 form and the Respondent did not withhold taxes.  Petitioner further testified Respondent directed his schedule, breaks, and manner in which he should perform his job duties and provided the necessary tools and work truck.  On the date of the accident, Respondent actually set up the ladder from which Petitioner fell.

    Respondent testified that he paid petitioner cash since Petitioner did not have legal documentation to work. Although Respondent testified he gave some direction regarding start times for jobs, Petitioner came and went whenever he wanted. Respondent testified the equipment used on the jobs was his equipment, with the exception of possible painting tools.  Respondent further testified he was unaware that construction workers, electrical workers and workers in industries using sharp cutting tools were entitled to workers’’ compensation insurance and he thought he had all necessary insurance.

    An insurance agent further testified at hearing.  He acknowledged recommending workers’ compensation coverage to Respondent and provided a premium quote, although Respondent ultimately declined coverage.

    The Commission found Respondent was engaged in an extra hazardous business and was subject to the Illinois Workers’ Compensation Act and required to provide workers’ compensation insurance. The Commission further found Petitioner was an employee of Respondent and reasoned that the Respondent controlled Petitioner’s schedule, directed the manner in which he performed his job duties and Respondent assisted in the performance of the specific job duty that resulted in Petitioner’s injury. Finally, the Commission had to consider whether Respondent knowingly failed to provide workers’ compensation insurance that would have otherwise covered Petitioner’s claim.  The Commission found Respondent knowingly failed to provide insurance.  It was not persuaded by Respondent’s position that he thought he had insurance that “covered everything” since the insurance agent testified that Respondent needed workers’ compensation insurance.  The Commission was also not persuaded by an argument that there was a language barrier since the insurance agent was mostly fluent in Respondent’s native language and there were no communication barriers.  In light of the above, the Commission found Respondent was no longer afforded the benefits and protections of the Act and could be sued in civil court.

    II.                   ACCIDENT

    Pate v. State of Illinois- Illinois Department of Corrections- Parole, 15 WC 25533, 20 IWCC 0759 (IWCC Dec. 20, 2020)

    Petitioner worked as a parole agent for Respondent.  His job duties involved investigating whether a house was suitable for a parolee’s release, checking on a parolee’s progress, transporting parolees to the penitentiary, attending court dates and training.  Petitioner was assigned a squad car to perform his duties.  Petitioner spent most of his workday in the car.  The car was equipped with a cage that restricted his movement.  He entered and exited his car up to 30 times per day.  He logged 1,500 to 2,000 per month miles in the car.

    On the date of accident, Petitioner was conducting an investigation regarding the placement of a parolee.  He parked on the wrong side of the street so the driver’s door was on the curb side.  He explained that he did this so other patrol cars would notice he was there.  He shimmied out of the car, while wearing a side arm and protective vest.  Petitioner place his foot down to exit the car.  He was wearing hiking boots and he stepped into a low spot in the grass.  He felt his left knee pop and twist.  He continued the investigation, but his left knee felt strange.  Petitioner emailed his supervisor about the incident and spent the rest of the day completing paperwork. 

    Petitioner sought medical treatment for his left knee.  Petitioner underwent an MRI study, which revealed a lateral meniscal tear.  Petitioner was eventually released to return to work without restrictions.  At the request of his attorney, Petitioner was examined by Dr. Chudik almost three years later.  Dr. Chudik confirmed that the accident caused a meniscal tear.  He noted that Petitioner could continue to work without restrictions, but that Petitioner remained symptomatic. 

    The Arbitrator found that Petitioner sustained accidental injuries that arose out of and in the course of his employment.  The Arbitrator found that Petitioner was a traveling employee.  Respondent argued that Petitioner’s injury was not foreseeable since he did not fall and there was no evidence that the grass was defective.  The Commission disagreed and stated that it was unrebutted that Petitioner stepped in a low spot and it was foreseeable that a parole agent, acting in the course of his regular duties, would encounter hazards at various locations.  The Commission found that the act was also distinctly associated with Petitioner’s employment since he was acting in the ordinary course of his employment.  The Commission further noted that the injury was caused by a hazard on the property.  Accordingly, the Commission found that Petitioner sustained a compensable accident.

    The Arbitrator found that Petitioner’s knee condition was causally connected to the work-related accident.  Respondent argued that the Commission should find that Petitioner reached maximum medical improvement in 2015 and discount Dr. Chudik’s report as not credible.  The Commission agreed with Respondent.  The Commission noted that Petitioner was released from medical care in 2015 and reported no symptoms.  Further, he did not seek any medical treatment despite stating that he continued to experience symptoms in his left knee.  Accordingly, the Commission found that Petitioner reached maximum medical improvement in 2015 and the gap in treatment broke the chain of causation.  Further, the Commission found there was no causal connection between the work accident and any symptoms in the right knee. 

    The Commission modified the Arbitrator’s award of medical expenses based on causation.  It awarded payment of medical bills through the date of maximum medical improvement.  The Commission corrected the Arbitrator’s award of temporary total disability benefits since it reflected the incorrect number of weeks. 

    The Arbitrator found that Petitioner was permanently and partially disabled to the extent of 12.5% loss of use of the left leg and 2.5% loss of use of the right leg.  The Commission modified the decision of the Arbitrator and found that Petitioner was permanently and partially disabled to the extent of 10% loss of use of the leg.  The Commission noted there was no impairment report, so it accorded no weight to that factor.  The Commission found that Petitioner worked in a dangerous job and now had difficulty performing the job.  Petitioner was 48.  The Commission found he would be in the work force for a long period of time.  Since there was no evidence regarding Petitioner’s earning capacity, the Commission accorded it no weight.  The Commission noted that although it did not agree with Dr. Chudik’s opinion about causation, it did find that Dr. Chudik’s report corroborated Petitioner’s testimony he was not symptom free following the work-related accident.  Accordingly, it accorded some weight to the last factor.  Based on the five factors, the Commission found that Petitioner was permanently and partially disabled to the extent of 10% loss of use of the left leg.

    Marrero v. Islamorada Fish Company, 16 WC 24292, 21 IWCC 0016 (IWCC Jan. 26, 2021)

    Petitioner worked for Respondent as a part-time cook and dish washer.  Petitioner worked 6-hour shifts, five days a week.  He stood the entire shift and was required to wear non-slip kitchen shoes, chef’s pants, a shirt, and a hat.  Over Christmas, Petitioner worked 12 hour shifts occasionally.  Petitioner testified that his feet began to hurt.  He reported the pain to “Mandy.”  No accident report was completed.  Petitioner began medical treatment for his bilateral ankle complaints.  He underwent fusion surgery for this left ankle.  He later underwent a revision surgery to the left ankle.   

    The general manager testified on behalf of Respondent.  He testified that the area where Petitioner worked was flat and level.  He also testified that it was rare for an employee to work a double shift.  He testified that employees were supposed to report all injuries to management.  The manager testified that Petitioner notified him that he was undergoing surgery for his feet but indicated that it was for a problem he had had since birth.  He did not report that it was related to work. 

    The Section 12 physician testified that Petitioner’s condition was not causally related to his employment.  He opined that the treatment and restrictions were reasonable, but unrelated to employment.

    The Arbitrator found that Petitioner failed to establish that he sustained a compensable accident.  The Arbitrator also found that Petitioner did not establish that he provided timely notice of the accident nor that the employment caused Petitioner’s current condition of ill-being.  Thus, the Arbitrator denied payment of benefits.

    The Commission modified the decision of the Arbitrator with regard to accident, notice and medical causation.  The Commission noted that the Arbitrator’s decision was issued prior to McAllister v. Illinois Workers’ Compensation Commission, 20 IL 124828 (2021).  The Commission noted that Petitioner alleged that he sustained a repetitive trauma injury.  The Commission found that given the totality of the circumstance of Petitioner’s work, including his prolonged repetitive standing, and spinning in non-slip shoes, which were required by Respondent, Petitioner’s activities were such that might reasonably be expected to be performed.  Accordingly, the Commission found that Petitioner sustained an accident arising out of and in the course of his employment.  The Commission reversed the decision of the Arbitrator.

    The Commission found that Petitioner failed to provide timely notice to Respondent of the accident.  The Commission noted that Petitioner informed Respondent of his injury and pre-existing condition but failed to inform Respondent that the employment had some impact on or aggravation of the pre-existing medical condition.  The Commission stated there was no clear evidence that Respondent had knowledge of any connection between Petitioner’s work activities and the pre-existing ankle injury until after the 45-day notice period had run.  Accordingly, the Commission found that Petitioner failed to provide timely notice of his accident to Respondent. 

    The Commission also found that Petitioner failed to establish medical causation.  The Commission found there was no evidence that Petitioner’s pre-existing foot condition was aggravated as a result of his work activities.  The Commission relied on the opinions of the Section 12 physician, who opined that Petitioner’s degenerative foot condition was the sole cause of the injury.  He noted that although standing on his feet created an increase in symptoms, it did not change the condition or make it worse. 

    Commissioner Parker concurred that Petitioner sustained a compensable accident; however, he dissented with the majority and would have found that Petitioner provided timely notice and that the condition was casually connected to the work-related accident.  Commissioner Parked noted that Petitioner advised Respondent that the double shifts were causing him pain and that he was having foot surgery.  Thus, it was his opinion that Petitioner provided timely notice to Respondent.  The Commissioner also noted that the Section 12 physician noted that the work activities placed increased stress on the feet and increased his symptoms.  Accordingly, he would have found that Petitioner’s work activities caused an aggravation of the pre-existing condition. 

    Higueros v. La Villa Banquets, 17 WC 9838, 20 IWCC 0769 (IWCC December 29, 2020)

    Petitioner worked as a busboy and server.  After completing his shift on March 4, 2017, petitioner observed an argument in the parking lot while taking garbage to the dumpster. Petitioner’s co-workers were also observing the altercation.  Petitioner then witnessed a man striking a woman who was laying on the ground and another woman in a vehicle screaming for help.  Petitioner testified that despite the fact the police had been called, he felt the need to intervene as he believed the man would have killed the woman.  Petitioner struck up a conversation with the man during which he told him he could not do this on the property, that he had to leave and the police were coming.  During this discussion, the woman entered the vehicle and drove away.  The man became increasingly aggressive and went to his vehicle to retrieve an item. Petitioner and his co-workers then began walking away from the scene when the man attacked petitioner and struck him in the face with a sharp object.

    A witness for the Respondent testified there were no formal policies regarding disputes on the premises, although Respondent did not condone getting involved in disputes as the police should handle any issues. The witness further testified that during training, they are told to speak to a manager if there are any problems.

    After considering the evidence and testimony, the Commission found petitioner was in the course of his employment when the incident occurred. It reasoned the incident occurred immediately after his shift ended and petitioner was rendering aid when the incident occurred, which does not remove someone from the course of employment.

    In addressing the arising out of component, the Commission considered the three categories of risk: employment risks, personal risks and neutral risks. Petitioner argued he worked as a bus boy until late at night and he was exposed to a greater risk of responding to altercations involving intoxicated patrons.  The Commission found Petitioner’s accident did not arise out of his employment. It found the mere risk of working in a bar was insufficient to prove increased risk and Petitioner did not present evidence as to potential increased crime rates in the area surrounding the bar. The Commission found it significant that there had never been an incident like this on the Respondent’s premises. It further reasoned there was no evidence that established Petitioner’s actions to assist the woman were necessitated by the conditions of his employment.

    Dunn v. Cook County, 12 WC 43254, 20 IWCC 0774 (IWCC December 31, 2020)

    Petitioner worked as a public health nurse and her duties required that she visit clinics, see patients, and supervise staff.  On January 7, 2011, Petitioner visited a clinic that had recently reopened after a remodel.  She testified the clinic had new linoleum flooring that was slippery and had a heavy coat of wax. Petitioner attempted to sit on an exam stool to answer a phone in an area of the clinic not open to the general public. When she sat down, the stool slid out from under her and she fell on the floor. She testified that the stool was round with 4-5 legs on rollers and no arms or back. Petitioner alleged injuries to her hip, leg and back. 

    The Arbitrator found Petitioner’s accident did not arise out of her employment and denied benefits.  On appeal, the Commission reversed and found  Petitioner’s injury was due to an employment related risk. In so finding, the Commission followed the Illinois Supreme Court decision in McAlister v. Ill. Workers’ Comp., 2020 IL 124848.  It noted that when an employee is injured performing a common bodily movement or routine everyday activity, we must determine whether the employee was injured performing one of three employment related acts: (1) acts the employee was instructed to perform, (2) acts the employee had a common-law or statutory duty to perform, or (3) acts the employee may reasonably be expected to perform incidental to his or her job duties.  In this case, the Commission found Petitioner sustained a compensable injury as she was exposed to an employment related risk. IT reasoned the Petitioner was sitting down to answer a phone call and the act of sitting on the stool while performing her job duties was an act she could reasonably be expected to perform in completion of her job duties. The Commission further noted it also found the accident compensable under a neutral risk analysis due to the qualities of the chair provided by the Respondent and as it was not used by the general public. Since Petitioner was required to sit on the chair while performing her job duties, use of the chair qualitatively and quantitatively increased her risk of injury.

    Reischauer v. Governors State University, 16 WC 13564, 20 IWCC 0762 (IWCC December 23, 2020)

    Petitioner worked as a training specialist for Governors State University, which would contract with the Department of Children and Family Services (DCFS) to provide training for DCFS case workers and private agency case workers.  Petitioner would commute from her resident in Bloomington, Illinois to her primary place of employment at the DCFS Office of Training in Springfield, Illinois.  In performance of her job duties, DCFS would also send her to different sites through the state for training.  On March 22, 2016, Petitioner was attending a mandatory Training of Trainers conference in Joliet, Illinois, which took place quarterly. During the conference, Respondent paid for her lodging and Petitioner received mileage reimbursement for her travel and a per diem for meals.  During a lunch break, Petitioner traveled to a restaurant and returned to the conference parking lot.  While walking in front of the building along a sidewalk, she caught her toe on an uneven area and fell.  She alleged injuries to her right hand, left foot and right knee.

    The Arbitrator found Petitioner was a traveling employee and since a defect in a city sidewalk caused her fall, she was subject to the Street Risk Doctrine and sustained an injury that arose out of and in the course of her employment.  The Street Risk Doctrine finds that if the evidence establishes the Petitioner’s job requires that she be on the street in performance of her job duties, that the risks of the street become risks of the employment.  The Arbitrator found Petitioner was exposed to a hazard since the sidewalk was uneven.  The Commission affirmed the Arbitrator’s Decision that the injury arose out of and in the course of the employment and modified the Decision on other grounds.

    Martin v. State of Illinois/Depart. Of Security, 12 WC 36359, 21 IWCC 0013 (IWCC January 11, 2021)

    Petitioner worked as an unemployment claims processor for the State of Illinois. He was returning from a break on March 17, 2011 when he and a co-worker were shot at the entrance of the Respondent’s building. At the time they were shot, Petitioner testified he heard someone yell “hey, unemployment.” Petitioner testified that the employees were required to take their breaks outside, use a particular door for ingress and egress, and the neighborhood in which they worked was very dangerous. Petitioner sustained a superficial wound to the head and alleged psychological trauma.

    The Arbitrator found Petitioner’s accident arose out of and in the course of his employment. It reasoned Petitioner was in the course of his employment since employee’s were required to take breaks outside, use a particular door for ingress and egress and he was shot near the door the employees were required to use, and as such, the Arbitrator found this area was an extension of Respondent’s premises. The Arbitrator further found Petitioner’s accident arose out of his employment since the Respondent required the employees to take breaks outside, he worked in a very dangerous neighborhood and was responsible for granting or denying unemployment to residents in the neighborhood, placed Petitioner at a greater risk of injury.  The Arbitrator was also persuaded by Petitioner’s testimony that he heard someone yell “hey, unemployment” when he was shot as evidence that the shooting was not random.  The Commission affirmed the Arbitrator’s finding of accident but modified unrelated portions of the Decision.

    Hernandez v. City of Chicago, 10 WC 02706, 21 IWCC 0029 (IWCC January 22, 2021)

    Petitioner worked as a parking aid enforcement officer.  On December 16, 2009, she walked her normal route with her partner when she slipped and fell on an icy and unlevel sidewalk, which was under construction.  Petitioner alleged injuries to her back, neck and shoulders.

    The Arbitrator found petitioner sustained an accidental injury that arose out of and in the course of her employment.  The Arbitrator reasoned that Petitioner was walking her assigned route and had to cross the dangerous area in performance of her job duties that required her to check all vehicles up and down the block. The Arbitrator found the performance of her job duties in such an environment exposed Petitioner to a greater risk of injury.

    III.                  EVIDENCE

    Williams v. Capital Healthcare and Rehab Centre, 13 WC 39671, 20 WC 0766 (December 29, 2020)

    IV.                   MEDICAL CAUSATION

    Pelivanovic v. Our Lady of Resurrection, 10 WC 38521, 20 IWCC 0747 (IWCC Dec. 18, 2020)

    V.                   AUTHORIZATION & PAYMENT OF MEDICAL BILLS

    Wagner v. Walgreens Distribution Center, 18 WC 17063, 20 IWCC 0745 (December 17, 2020)

    VI.                   PENALTIES

    Verduzco v. Wal-Mart Stores, Inc., d/b/a as Sam’s Club, 21 IWCC 0037, 17 WC 08585 (January 16, 2021)

    VII.                   PERMANENCY

    Stone v. Central Illinois Truss, 08 WC 51795, 21 IWCC 0028 (IWCC Jan. 22, 20121)

    VIII.                   BENEFIT PAYMENT PROCEDURES

    Valadez v. Harvey, City of, 29 ILWCLB 18 (Ill. W.C. Comm. 2020)

    IX.                   OTHER ISSUES

     Gilliam v. Ford Motor Co., 29 ILWCLB 30 (Ill. W.C. Comm. 2021)

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    Q-Dex On-Line®  was the source for the cases used in the research.


  • 03/23/2021 4:48 PM | Judy Pfeiffer (Administrator)
    I.                   EMPLOYER/EMPLOYEE RELATIONSHIP

    Muniz v. Routine Maintenance,  10 WC 39469, 20 IWCC 651

    This is an Injured Workers’ Benefit Fund case so all issues were in dispute.  Petitioner testified he was hired to clean gutters by the Respondent, Routine Maintenance. Petitioner responded to an ad in the paper and met with Carlos, the office manager, who hired him to clean gutters at a residential complex.  Petitioner had no experience cleaning gutters.  Petitioner was a union bricklayer and had been laid off when he answered the ad.

    Petitioner signed a job application on the date of hire.  He testified that if he refused to sign anything given to him by the Respondent he would not be allowed to work.  Petitioner drove his own vehicle to job sites and used his own ladder for “small homes,” but the Respondent provided him with ladders if Petitioner’s ladders were too short.  Respondent would set the rate of pay for a job and pay Petitioner after the job was complete.  Petitioner received checks from the Respondent and worked a total of three days prior to his accident.  Respondent also chose the job sites where Petitioner worked.

    On the date of the accident, Petitioner met the crew at the Respondent’s office.  Carlos loaded up a company vehicle, rented ladders from a hardware store and drove to the job site.  Carlos advised the crew what to do once they arrived at the job site.  The weather was “cold and windy.”  Carlos told the crew, including Petitioner, to climb up the ladders and clean the gutters. 

    As Petitioner was coming down a ladder, a gust of wind caught him in the back.  No one was steadying the ladder.  Petitioner felt the ladder slip from the gutter so he jumped off the ladder and caught a balcony with his armpits.  Petitioner could not keep a hold of the balcony and fell another 30 feet.  Petitioner fractured his pelvis in three places, suffered a fractured hip, fractured vertebrae, fractured collarbone, and bilateral shoulder injuries requiring surgical repair.

    On cross-examination Petitioner admitted the application he signed stated it was a “contract” and that it listed Petitioner as an independent contractor.  The “contract” required Petitioner to carry his own workers’ compensation insurance.  Petitioner claimed he never read the agreement and did not understand the agreement.  Petitioner received a check in the mail for the days worked.  He never received a W-2, never received a set number of jobs, and admitted he could decline jobs.

    The "contract" executed by the parties, identified by Mr. Majernik, the owner of the Respondent,  was submitted into evidence. It provided that Petitioner (contractor) was an independent contractor hired by Carlos (contractee). The document specified that no employment relationship was established. Petitioner represented that he owned a business. While Carlos had the right to "control the results to be accomplished," Petitioner had the right to control the "manner or means by which the task" was to be performed. Petitioner was free to take work from other entities. However, Petitioner was not allowed to solicit Respondent's customers while working on a job for Respondent. Petitioner could refuse any job offered by Carlos that he not already accepted in writing and was responsible for all taxes.  He was also required to have workers’ compensation insurance. Either side could terminate the contract upon completion of a contemplated job or after a 30-day notice. Carlos would send Petitioner an invoice for fees and Petitioner had the obligation to pay the fees.

    The Arbitrator found an employer-employee relationship existed between Petitioner and the Respondent.  The Arbitrator focused on the activities of the Respondent on the date of the accident, such as Carlos overseeing the job site, overseeing Petitioner’s work, and supplying the 40-foot ladder that Petitioner used that day.  The Arbitrator also noted Petitioner’s nature of the work was as an unskilled laborer and had nothing to do with Petitioner’s prior skills as a bricklayer.  Finally, the Arbitrator noted that the Supreme Court has held that the parties’ description of the relationship between them is only factor to consider.

    The Commission affirmed the Arbitrator’s decision and found Petitioner more credible than the Respondent’s owner, who attempted to downplay the nature of the employment relationship.  The Commission noted that “(i)t makes little sense for Petitioner to set up an independent company to perform professional activities he had never done before. His testimony that he had no expertise in gutter cleaning was not rebutted and it would appear likely that Carlos would have in some way directed his work.”

    II.                ACCIDENTAL INJURIES ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

    Burnett v. Windmill Nursing Pavilion, 17 WC 2548, 20 IWCC 0633

    Petitioner, a 51-year-old certified nursing assistant, testified she felt a cramp in her left foot on December 12, 2016 while walking.  Petitioner presented to Ingalls Memorial Hospital the next day “complaining of left foot pain and swelling for one day. She denied any injury. The onset was gradual. The mechanism of injury was listed as "none." And "it occurred-at home."

    On the second visit to Ingalls, Petitioner reiterated that the injury occurred at home and that she was unsure of how she was injured.  At a subsequent medical appointment, Petitioner advised the physician that she had severe pain and swelling of her left foot which began on December 13, 2016,the day after the accident, following a period of prolonged walking.

    The Arbitrator denied the claim  and found that Petitioner did not sustain a compensable accident.  The Arbitrator found that Petitioner’s claim of sustaining an injury through  prolonged walking was a neutral risk such that the Petitioner must prove either quantitively or qualitatively of an increased risk.  The Arbitrator was willing to consider a qualitative increased risk if the injury occurred at work.  However, Petitioner provided a history that the injury occurred at home, so the Arbitrator did not consider whether Petitioner was subjected to an increased risk qualitatively.   

    The Commission, although affirming and adopting the Arbitrator’s decision, acknowledged that the McAllister decision of the Illinois Supreme Court was issued after the Arbitrator’s decision and so the Commission wanted to clarify the issue.  The Commission noted that  Petitioner’s work as a certified nursing assistant required her to walk.  Petitioner testified she would be required to be on her feet from the time she arrived to do her job duties until she left.  On the date of the accident, Petitioner went to the laundry area to get a bedsheet and began having a cramp in her foot while walking back to her unit.

    The Commission noted since transporting laundry was one of petitioner’s job duties, walking to the laundry might reasonably be expected to be incidental to her job duties.  However, the Commission found that Petitioner’s testimony was contradicted by the initial medical records, which did not indicate the walking occurred at work.  The Commission therefore found the Petitioner was not credible.

    Rees v. Buffalo Grove Park District, 17 WC 34480, 20 IWCC 0722

    Petitioner worked in maintenance for the Respondent. On the date of accident, Petitioner claimed a work-related injury after closing a van door on his right index finger.  Respondent disputed liability and claimed that Petitioner’s accident was not “peculiar to the employment” and slamming a finger in the door of a vehicle was a “neutral risk.”

    Petitioner testified on the date of the accident he completed a job at the Respondent’s golf dome and drove his vehicle back to the Respondent’s yard to unload equipment.  Petitioner opened the passenger door to retrieve a bucket filled with his tools when another of the Respondent’s work vehicles started to pull in the yard.  Petitioner began to rush. With the bucket in his left hand, he closed the right passenger door with his right hand and the door slammed into his right index finger.

    The Arbitrator found that Petitioner was in a crowded terminal, a place he had a right to be, unloading his truck when the accident occurred.  The Commission interpreted the Arbitrator’s decision as finding the Petitioner’s accident involved an “employment related risk” activity.  The Commission noted the McAllister Supreme Court decision and concluded that under McAllister the Commission reached the same decision as the Arbitrator.

    The Commission noted Petitioner was unloading his work van and parking his van in the employer's garage. He used his right hand to close the passenger door of one of Respondent's vans in response to a big truck with a trailer pulling in and approaching his van. The video surveillance confirmed Petitioner's testimony that he noticed the truck. The act of closing the door to move the van so that the truck could park is "within the reasonable contemplation of what the employee may do in the service of the employer."  Respondent's Superintendent of Facilities and Planning agreed that the trucks  park in that area every night, are required to park in that location due to space constraints, and that Petitioner would have to move his vehicle for the truck to park in its designated spot. Thus, Petitioner was injured while performing an act the Respondent might reasonably expect him to perform to fulfill his job duties.

    Tabb v. Chicago Transit Authority, 14 WC 11506, 20 IWCC 0735

    Petitioner was employed as a bus driver for the Respondent.  On the date of accident, Petitioner was driving northbound on her route.  The Lincolnwood Mall was at the end of her route.  When the bus arrived at the Mall, Petitioner allowed her passengers to exit the bus.  Petitioner needed to use the restroom, which was located in the Mall.  Petitioner testified she was always punctual and on this day she was "kind of in a rush, because was already a little late- some minutes late."  As Petitioner was exiting the bus and reached the last stair her foot went between the bus and the curb, a seven to eight-inch gap. Petitioner grabbed the railing on the bus door and her body turned as she fell.  The history provided to Petitioner at Concentra indicted “I was getting off the bus and stepped on the curb and twisted my ankle.”   

    The Arbitrator denied the claim and found that Petitioner’s fall did not arise out of or in the course of her employment.  The Commission reversed.  The Commission found that Petitioner was a traveling employee.  The Commission found that Petitioner’s fall occurred in the “course of her employment” as her fall occurred at a place she might reasonably have been while performing her duties.  The Commission also found petitioner’s fall arose out of her employment.  The Commission cited Nee v. Illinois Workers’ Compensation Commission and noted that Petitioner “tripped on a curb while alighting from her assigned bus.” The Commission referred to the “street risk” doctrine that when, as in this case, the claimant's job requires [her] to travel the streets, the risks of the street become one of the risks of[her] employment. [citations omitted]." Nee at, 26. As the Supreme Court of Illinois held in C.A. Dunham Co. v. Industrial Commission, 16 Ill. 2d 102, 111, 156 N.E.2d 560 (1959), "where the street becomes the milieu of the employee's work, [s]he is exposed to all street hazards to a greater degree than the general public."

    Brustin v. (Brustin & Lundblad, Ltd.), 14 WC 2328, 19 IWCC 0220

    Petitioner was an attorney and president of the Respondent.  Petitioner was 81 years of age and supervised the office, although he did not do day-to-day legal work, he  tried a jury case earlier in the year.  On the date of accident, Petitioner received a call from his office that a client and important referral source arrived early for an appointment.  Petitioner therefore dressed and left his home in a high-rise apartment.  He proceeded to walk to his bus stop to take the bus to his office for his client meeting.

    As petitioner walked on a public sidewalk, he tripped and fell forward onto the sidewalk.  Petitioner attributed the fall to an elevation issue with the sidewalk.   Petitioner admitted he filed a civil suit against the City of Chicago and the case had been dismissed on summary judgment.  The affidavit supporting the summary judgment motion indicated that the discrepancy in the sidewalk was approximately 1 1/8 to 1 7/18 inches.

    The Arbitrator found that Petitioner’s fall did not arise out of or in the course of Petitioner’s employment.  The Arbitrator found that Petitioner was not a traveling employee as he was on his way to his office where he performed all of his work duties.  While the firm supplies a CTA bus pass to its employees, no evidence revealed that the Petitioner was paid for his travel time from his home to the office.  Public Service Company v. Industrial Commission, 370 Ill. 334 (1938).  The Arbitrator also denied Petitioner’s claim that he was on a “special mission” because the client he was meeting was not only a current client but a major source of referrals and considered a unique client.  The Arbitrator noted that the “special mission” has to be extraordinary in relation to routine duties.  The Arbitrator found this not to be the case.  The Commission affirmed and adopted the decision of the Arbitrator.

    Brueggemann v. Mueller Water Products, Inc., 17 WC 4842, 20 IWCC 0654

    Petitioner, 63 years of age, alleged a repetitive trauma injury.  Petitioner’s job required him to use a machine and assemble ¾ inch and 1-inch valves by hand. The job required him to use a machine to create the bodies and keys, and assemble all the parts, test them, put the finishing goods on the parts, and then box them. He would have to twist the valves together, drill a hole, and tap them with a hammer. Petitioner would also rotate the machine twice to make sure the valve was lubricated. He would make about 130 valves per day.  Petitioner testified that the larger the valve, the more pressure that was required to open and close the valve because of the key size. The assembled valve weighed about 2.875 pounds.  Between 2003 and 2011, he worked on heavier valves and would only work on a certain part of the process. The employees  rotated the process daily during that period.  

    Ms. Horath testified on behalf of the respondent. She was the lead production supervisor.  She stated that completing 130 valves per day would be a high average.

    Petitioner presented to Dr. Peterson at HSHS Medical Group on November 1, 2016 for right wrist pain. The injury date was listed as October 26, 2016. Petitioner reported a 6-month history of right wrist pain. He recalled that his right wrist was hurting in December 2015, but he was going to be off work for two weeks and thought the wrist pain would resolve. The pain improved but worsened over the last six months. His wrist pain was located in the right and left dequervains' s area. He reported that his issues began on December 1, 2015.

    It was now constant and made worse by repetitive use. The examination revealed tingling, although negative for numbness, clumsiness, and weakness. The diagnosis was synovitis and tenosynovitis of the left and right hand, and ankylosis. The records indicated that the medical causation was listed as related to work activities. (emphasis added). Petitioner received work restrictions to avoid forceful gripping and repetitive flexion and extension of the wrists. He was to wear a wrist brace while working and sleeping. Therapy was recommended.

    Respondent obtained a musculoskeletal investigation report from Dr. Richard Wyatt on January 25, 2017. The report indicated that the time Petitioner spent performing his tasks were varied, cycle times were expanded, forces were below the referenced levels and no extreme deviated postures were observed. There was no increased likelihood of developing bilateral carpal tunnel from the job. The nature, duration and frequency of his job would not qualify as repetitive or traumatic. The weight was less than 2 pounds and the cycle time was 4.32 minutes. Petitioner was provided breaks.  Petitioner’s job did not meet the level for NIOSH standards for repetition. There was no force/repetition, or posture present in the job. The work processes as analyzed were well within the ergonomic levels and did not present risk factors at a level to result in a cumulative trauma or repetitive motion injury to the hands, wrists, or fingers. (emphasis added).

    Dr. Jeffrey Smith, a board-certified orthopedic surgeon with an added certification for hand problems, testified on April 11, 2019. He saw the Petitioner on January 17, 2017 for right wrist pain. Petitioner was a machinist and his wrist had been bothering him for a year or two. He could not recall if the Petitioner described his specific duties. Dr. Smith noted that Petitioner's condition could be caused by a host of different things, including repetitive motion and an acute injury. He stated that over time as the ligament stretches and does not function with motion, the wrist moves in an out of its balanced situation. This causes an increased wear to the joint between the scaphoid and the radius and leads to premature wear to the point of painful arthritic condition. He stated that repetitive motion, when the wrist is loaded of a flexion-extension nature, could contribute to the condition. (emphasis added).

    Dr. Wyatt, a board-certified in CPE ergonomics, testified on July 29, 2019. He

    performed an ergonomic assessment of a valve assembler or angle meter coordinator in

    January 2017. He observed the posture of the employee performing the job and asked about the workspace. He measured a lot of the forces with a force gauge. They also tried to get the actual production rates to determine the repetitiveness of the job. He had production data from November 2016.  The production sheet revealed that an employee built about 14 valves per hour. He determined that this was not repetitive as the NIOSH standard for repetitive is a cycle time of less than 30 seconds and using the same motion.

    In the instant case, a person was using a lot of different motions in a 4-minute cycle. This was a lot slower than a faster pace position.  Dr. Wyatt stated that the valve bodies weighed one pound. He stated that the only forceful portion of the job was using wrenches; however, when measured, the force was not high because of the valve size. The wrench pull force was less than three pounds. There was no high force required to perform his job . He stated a high force would be 30 to 40 pounds with a bad posture.  He stated that there were really good ergonomic futures in the work cells. The valves were located in a tipper which eliminated a lot of the awkward posture and bending over to obtain the parts.  There was also no exposure to vibration.  The completed box of parts weighed 36 pounds but this was only moved a few times per shift and was a horizontal move. Dr. Wyatt did not find any evidence that would lead to a hand or wrist disorder. He stated that the job was not repetitive and there was no evidence this job would lead to a musculoskeletal disorder. (emphasis added).

    The Arbitrator found that Petitioner failed to prove by a preponderance of credible evidence that his right hand/wrist condition arose out of and in the course of his employment.  Based on the records and opinions of Dr. Petersen, Dr. Smith, Dr. Wyatt and Dr. Brown, the Arbitrator found the only doctors that had any details and an accurate understanding of Petitioner's work activities were Dr. Wyatt and Dr. Brown. The Arbitrator found no credible evidence to support a finding that Dr. Petersen or Dr. Smith had a detailed and accurate understanding of Petitioner's work activities.

    The Commission reversed the Arbitrator’s decision and found that Petitioner sustained a compensable accident.  The Commission noted that there was conflicting evidence as to the frequency of Petitioner's job duties. Petitioner testified that he assembled about 130 valves per day while Ms. Horath testified that the 130-figure was on the higher end. Dr. Wyatt based his opinion on an even lower production rate.

    The Commission, however, was not persuaded by Dr. Wyatt's opinion. Dr. Wyatt was not aware of the production rates during the first ten years of Petitioner's employment. Further, Dr. Wyatt was unaware of the fact that the valves would not always fit together properly, which could change the force required to work on the ill-fitting valves.

    The Commission found that the evidence supported that Petitioner's job duties required him to use his hands consistently on a daily basis and that his duties were forceful in nature. The Commission found Petitioner's job duties were repeated sufficiently enough to cause his injury.

    The Commission found the evidence supported a finding that Petitioner's pre-existing condition was aggravated by his job duties. Petitioner testified that his condition improved while he was off work for eleven days and then progressively worsened upon his return to work. Respondent's company physician indicated that the work activities were a cause in his condition. Dr. Smith, who performed the surgery, also testified that the work activities were a cause in his condition. Dr. Smith explained that repetitive motion, when the wrist is loaded in a flexion-extension nature, can contribute to Petitioner's condition. The Commission found the opinion of Dr. Smith more persuasive than Dr. Brown's opinion. Dr. Brown performed a record review only and his opinion was premised, in part, upon the accuracy of the musculoskeletal investigation report prepared by Dr. Wyatt. As stated above, the Commission found Dr. Wyatt's opinions were based upon an incomplete understanding of Petitioner's work history.  Based upon the evidence as a whole, the Commission found  that Petitioner established accident and causal connection.

    Martin v. Holland Trucking, 17 WC 18743, 20 IWCC 0696

    Petitioner worked as a long-haul truck driver for the Respondent and claimed that his over the road truck driving duties caused injury to his low back conditions.  Petitioner, a 46-year-old truck driver, testified that he worked for the respondent as a city and road truck driver for 21 years. He usually worked 10-12 hours per shift, driving for around 8 hours, and then loading trailers on the docks for 2-3 hours. His duties included pulling up dock plates that weighed 50-75 lbs., and sometimes restacking 25-50 lb. freight pieces which had fallen over. Prior to 2017, Petitioner would sometimes drive older tractors. Although the newer tractors, which he had driven more recently, were equipped with air ride seats to provide more cushioning, not all of the cushions worked as well as the others and some would still "bottom out" on rough roads. Petitioner testified that 2-4 times per month, the trucks he operated would bottom out. When that happened, his back would hurt, his legs would go numb and his feet would tingle. While driving, the truck's vibrations would also cause those symptoms.

    The Arbitrator found Petitioner failed to prove he sustained a repetitive accident, and

    failed to prove any causal connection of his current condition to his work activities. Although

    the Arbitrator found Petitioner truthful in most respects, he found that Petitioner's testimony

    regarding the problems with the trucks' air ride seats and air suspensions was not corroborated

    by written documentation, specifically, that Petitioner's daily Driver Vehicle Inspection Reports ("DVIR's") did not mention problems with the seats or air suspensions.  The  Arbitrator also found that the causation opinion of Respondent's Section 12 expert, Dr. Van Fleet, was more persuasive than the treating opinions of Dr. McAskill and Dr. Sasso. The Arbitrator noted that Dr. Van Fleet had more personal knowledge of the physical requirements of driving a truck because of his own prior truck driving experience. The Arbitrator found Dr. Sasso's opinions were, "quite limited," because he did not obtain a history from Petitioner of the

    specific work duties he performed and was unaware of Petitioner's claims regarding inadequate air cushioning or air suspensions.

    The Commission reversed the decision of the Arbitrator.  The Commission found the causation opinions of Petitioner's treating physicians, Drs. McAskill and Sasso, to be credible. Dr. McAskill had knowledge of Petitioner's job duties and testified that Petitioner's duties contributed to and aggravated his current spine condition. Contrary to the Arbitrator's finding, Dr. McAskill did not testify that he would defer his causal connection opinion to a spine surgeon; only that he would consider doing so. Also, the Commission found that Dr. Sasso  obtained a history from Petitioner.  Dr. Sasso also had experience treating long-haul delivery drivers who developed low back conditions. Dr. Sasso testified that Petitioner’s repetitive work as a long-haul driver exacerbated his symptoms and contributed to his need for low back surgery. He found Petitioner's complaints were consistent with L4-5 stenosis, and that while his job duties did not cause his degenerative conditions, they exacerbated them.

    The Commission noted that under Illinois law, an injury need not be the sole factor, or even the primary factor of an injury, as long as it is "a" causative factor. Sisbro Inc. v. Industrial Commission, 207 1,11.2d 193, 205 (2003). Dr. Sasso testified that the treatment Petitioner received was reasonable and related to his condition, and that surgery would improve his function and reduce his pain.  Dr. Van Fleet only examined Petitioner once, on September 6, 2017. Then, he noted Petitioner's difficulty walking and standing up straight. Dr. Van Fleet did not believe Petitioner exaggerated his symptoms, although he found Petitioner to be credible. Dr. Van Fleet agreed Petitioner would likely need surgery to decompress at L4-5 and likely L5-S-1.  He did not believe that the need for surgery was related to Petitioner's job duties.  However, Dr. Van Fleet admitted that Petitioner's duties could have exacerbated his preexisting degenerative disc disease, and that repetitive trauma can aggravate spinal stenosis.  Dr. Van Fleet acknowledged that he did not know what type of seats Petitioner sat on while driving during the 20 years prior to his accident. He did not know how often Petitioner drove trucks with bad suspension systems or how much bouncing Petitioner experienced while driving his trucks. Dr. Van Fleet admitted he was not a truck expert. The Commission did not find his prior experience driving trucks, which were not  semi-trailers that Petitioner operated on a daily basis, made his causation opinion more credible than Dr. McAskill' s or Dr. Sasso’s. The Commission adopted the causation opinions of Dr. McAskill and Dr. Sasso

    III.             MEDICAL CAUSATION

    Walquist Farm Partnership v. IWCC, (January 11, 2021)

    This is a Rule 23 Illinois Appellate Court decision. However, since it was issued after January 1, 2021 the decision may be cited for its persuasiveness, but not as precedent.

    Petitioner was a farm hand for the Respondent.  On March 5, 2014, he and another person were unloading a 55-gallon drum of iodine that weighed over 400lbs.  While unloading the drum from a truck, the drum “jerked” as it slid off the truck.  Petitioner claimed he “jerked (my) back out of whack.”  Petitioner admitted at arbitration that he underwent back surgery in 2004 and experienced “on and off” back pain.  On cross-examination, Petitioner admitted he sustained several work injuries on the farm and because he was worried about his job he did not report the injury until the next day.  Petitioner also admitted that in the year or two before his injury he would take Aleve for back pain.  However, he never missed more than three days of work as a result of the back pain

    At the initial medical visit, the physician ordered an MRI of Petitioner’s back.  The physician did  not mention any accidental injury.  At Petitioner’s request, the doctor corrected the “error” and issued a supplemental report stating that Petitioner did mention the work accident.  Petitioner later sought consultation with a neurosurgeon, who, after injections failed, performed back surgery on Petitioner. 

    The Appellate court reviewed the medical records and found the following:...


    II. ACCIDENTAL INJURIES ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT

    III. MEDICAL CAUSATION

    IV. INTOXICATION

    V. MEDICAL PAYMENT/AUTHORIZATION

    VI. TEMPORARY TOTAL DISABILITY BENEFITS

    VII. PERMANENCY BENEFITS

    VIII. PROCEDURAL ISSUES

    IX. POST-ARBITRATION ISSUES

    X. OTHER ISSUES

    READ MORE.

    Q-Dex On-Line®  was the source for the cases used in the research.

  • 01/29/2021 12:35 PM | Judy Pfeiffer (Administrator)

    I.                   EMPLOYER/EMPLOYEE RELATIONSHIP

    Stirratt v. TRDA Wood Products, Inc, d/b/a Chicagoland Wholesale Mulch and Reasonable Tree Experts; Payroll Distribution Account 2 and Illinois State Treasurer, as ex-officio custodian of the Injured Workers’ Benefit Fund, 11 WC 14118, 20 IWCC 0590 (IWCC Oct. 6, 2020)

    Petitioner was employed as a tree climber by TRDA Wood Products, Inc.  TRDA was owed by Kurt Fife.  Petitioner previously worked as a tree cutter before working at TRDA.  He did not receive formal training.  He testified that his job duties required him to climb, trim and cut down branches of trees.  Petitioner also performed maintenance duties.  TRDA provided him with his equipment.  Petitioner wore a company shirt to work.  Petitioner drove a company vehicle to customer’s homes.  He could not drive the vehicle for personal reasons.  Mr. Fife provided Petitioner instruction as to which trees he was supposed to work on.  

    Mr. Fife testified that Petitioner was required to sign an agreement stating that he consented to work on a part-time basis for TRDA as a subcontract laborer.  Petitioner signed the agreement, but testified that he did not understand it.  Petitioner testified that Mr. Fife directed his hours, negotiated with customers and dealt with customer complaints.  Petitioner received hourly pay and was not paid directly by the customer. 

    On the date of accident, Petitioner was at a customer’s home.  He was directed by Mr. Fife to trim a tree.  Petitioner was coming down from the tree, lost his balance and fell 15 feet to the ground.  Petitioner fractured his right ankle.  Mr. Fife offered Petitioner $400 to sign a release of liability, which Petitioner accepted to help pay for medical care. 

    Petitioner underwent three surgeries to the right ankle.  Petitioner unable to work from April 1, 2011 through October 25, 2012.  Petitioner testified via deposition.  When Petitioner’s evidence deposition was taken, Petitioner was serving a four-year sentence for theft and burglary. 

    Mr. Fife testified that he has workers’ compensation insurance.  However, he could not name the carrier.  A subpoena from the National Council on Compensation Insurance reflected that there was no policy for TRDA.

    The Arbitrator found that Respondent was operating under and subject to the Workers’ Compensation Act.  The Arbitrator also found that an employment relationship existed between Petitioner and Respondent.  The Arbitrator noted that Petitioner’s work duties fell within the nature of the work performed by Respondent.  The Arbitrator found it significant that Petitioner had no customers of his own, did not receive a percentage of the price that Respondent negotiated and was paid an hourly rate.  Further, Respondent provided equipment to Petitioner and Petitioner was unskilled.  The Arbitrator did not accord any weight to the independent contractor agreement signed by Petitioner.  The Arbitrator found that an employer-employee relationship existed because TRDA controlled the manner of Petitioner’s work.

    The Arbitrator noted that Respondent did not present any evidence regarding accident.  It was undisputed that Petitioner fell out of a tree, which clearly arose out of and in the course of his employment.  The unrebutted testified also established that timely notice was provided to Respondent.  Respondent did not offer any medical evidence disputing medical causation.  Based on the chain of events analysis, the Arbitrator found that the current condition of ill-being of the right ankle was causally connected to the work-related accident.

    The Arbitrator noted that neither Petitioner nor Respondent submitted any wage documentation.  However, both parties’ witnesses testified that Petitioner earned $20 per hour and worked between 15-20 hours per week.  Accordingly, the Arbitrator found that the average weekly wage was $300 per hour, or $20 per hour, 15 hours per week.  The Arbitrator found there was no dispute as to Petitioner’s age, marital status and payment of medical bills.  He found that Petitioner was entitled to receive TTD benefits and found that Petitioner was permanently and partially disabled to the extent of 35% loss of use of the leg.  The Arbitrator found that a $400 credit existed for the payment made by Respondent to release liability.  the award was entered against the Injured Workers’ Benefit Fund. The Commission affirmed the decision of the Arbitrator.

     Cervantes v. McCann Construction and Injured Workers’ Benefit Fund, by Illinois State Treasurer, as ex-officio Custodian, 09 WC 30437, 20 IWCC 0593 (IWCC Oct. 8, 2020)

    The main issue dispute was employer-employment relationship.  Petitioner testified that he was employed by Respondent earning $14 per hour.  Petitioner testified that he had been employed for two weeks prior to the alleged accident.  He did not fill out an application.  He further testified that he did not own his own company.  Petitioner rode to work with Mr. McCann, who offered him the job.  Petitioner used his own tools.

    Petitioner testified that Mr. McCann offered him the job.  Petitioner was not hired to be a subcontractor.  Petitioner did not fill out a W-4 form or any tax forms.  He denied telling Mr. McCann that he owned a handyman service. 

    On the date of accident, Petitioner arrived at the job site with Mr. McCann.  Mr. McCann told Petitioner what work to perform.  As Petitioner was removing siding from the customer’s house, his leg fell into a window well, which gave way and caused him to fall, injuring his knee.  Petitioner received medical treatment for his right knee condition.  At the time of the hearing, an MRI study was recommended for the right knee.

    Mr. McCann also testified.  He testified that he obtained employees through a staffing agency.  He testified that Petitioner asked him for work and gave him a card with a real estate company on one side and a handyman service on the other side.  He hired Petitioner on three occasions as a subcontractor.  Petitioner was paid a percentage of the amount Mr. McCann received for each job and was paid in cash.  He further testified that he never saw Petitioner crawl down a window well, did not see him ice his knee and did not have an accident reported to him.  He testified that Petitioner continued to work for him on other occasions and did not have any difficulty performing his job.  Further, Petitioner did not report any injury to him.

    The Arbitrator found that Respondent was operating under the Act.  She further found that Petitioner failed to establish an employer-employee relationship.  The Arbitrator found Petitioner’s testimony was not credible.  The Arbitrator noted that Mr. McCann and Petitioner’s testimony was contradictory.  Further, the photographs offered into evidence did not support Petitioner’s testimony regarding the accident.  Specifically, the pictures taken of the window well did not show a complete split which would have allowed Petitioner’s leg to fall through it.  It was also significant that the amount paid to Petitioner for the work he performed was not consistent with his testimony regarding his earnings.  Since the Arbitrator did not find that an employee-employer relationship existed, the other issues in dispute were moot and denied.

    The Commission affirmed the decision of the Arbitrator.  The Commission noted that Mr. McCann did not control how Petitioner performed his work or how fast he worked.  Further, the Commission did not find Petitioner’s testimony that he was paid hourly to be credible.  The Commission also found that Petitioner used his own tools to perform the work.  Accordingly, no employee-employee relationship existed.

    II.                ACCIDENTAL INJURIES “ARISING OUT OF” AND “IN THE COURSE OF” EMPLOYMENT

    McCormick v. Francis P. O’Meara, D.D.S, P.C, 17 WC 37946, 20 IWCC 0515 (IWCC Sept. 15, 2020)

    Petitioner slipped and fell in a bathroom while working for Respondent.  The bathroom was located in a common area of the building Respondent’s office was located in.  The Arbitrator found that Petitioner failed to establish that she sustained a compensable accident because the accident did not arise out of an increased risk of her employment.  The Arbitrator applied a neutral risk analysis. 

    The Commission reversed the decision of the Arbitrator.  The Commission noted that although the bathroom was located in a common area, it required a key to open it.  The Commission found that the bathroom was not accessible to the general public because the general public did not have access to the area because the door was locked.  The Commission also noted that the bathroom was the only option for Petitioner to use due to her employment.  Since Petitioner was limited to the use of the bathroom, the Commission found that the risk should be considered distinctly associated with the employment. 

    The Commissions also found that the accident would be compensable under a neutral risk analysis.  The Commission found that Petitioner was subject to an increase risk quantitatively and qualitatively.  The Commission noted that Petitioner had to use the bathroom since Respondent did not provide a bathroom to Petitioner.  Further, the owner of the building set the door to lock quickly forcing Petitioner to rush to get into the bathroom.  Petitioner slipped on hand cream on the bathroom floor.  Thus, she sustained a compensable accident arising out of and in the course of her employment.

    The Commission also found that Petitioner’s current condition of ill-being was causally connected to the work-related accident.  The Commission found that Petitioner never experienced prior neck or back complaints.  The Commission rejected the opinion of the Section 12 physician due to the fact that he relied on a gap in treatment, which was credibly explained due to lack of insurance and Petitioner not knowing how to get treatment.

    Having found that Petitioner sustained an accidental injury and that the current condition of ill-being was casually connected to the work-related accident, the Commission awarded payment of TTD benefits and medical expense.  It also awarded payment for medical treatment.  

    Clarke v. Evanston Skokie School District #65, 16 WC 13114, 20 IWCC 0533 (IWCC Sept. 16, 2020)

    The Commission reversed the decision of the Arbitrator regarding accident.  The Arbitrator found that Petitioner failed to establish that she sustained accidental injuries arising out of and in the course of her employment.  The Commission found that Petitioner sustained a compensable accident.

    Petitioner was employed by Respondent as a special education teacher.  Petitioner walked through the hallway frequently.  Petitioner was walking down the hallway past two water fountains when she slipped and injured her leg.  Since she was in so much pain, she was not able to check to see if her clothes were wet following the fall.

    A witness for Respondent testified that she did not observe any water in the hallway where Petitioner fell nor was Petitioner’s clothing wet.  She acknowledged that the students used the water fountains. 

    The Arbitrator found that Petitioner’s accident did not have any origin in a risk connected with or incidental to her employment.  The Arbitrator also found that Petitioner failed to establish there was water on the floor where she slipped.

    The Commission reversed the decision of the Arbitrator.  The Commission found it significant that Petitioner consistently testified that she slipped.  The Commission found that water was frequently on the floor from the water fountains and it was reasonable to conclude that Petitioner slipped and fell as a result of the water on the floor.  The risk of the water was a risk incidental to her employment since her job required her to water between eight classrooms through the day, which she was doing at the time of the accident.

    The Commission also found that Petitioner’s current condition of ill-being was casually connected to the work-related accident.  Accordingly, the Commission awarded payment of medical bills admitted into evidence.  The Commission also awarded payment of TTD benefits and PPD benefits in the amount of 7.5% loss of use of the leg.

    Martinez v. General Mills, 09 WC 09385, 20 IWCC 0546 (IWCC Sept. 21, 2020)

    Petitioner was employed by Respondent as a QRO technician.  Petitioner was walking at work when she felt a pop in her left calf.

    The Arbitrator found that Petitioner failed to establish that she sustained a compensable accident.  The Arbitrator found that the accident was in the course of employment; however, it did not arise out of the employment.  Petitioner argued that her accident was either distinctly associated with the employment or she was exposed to a risk greater than the general public since she was walking fast and stepped over a threshold.  However, the Arbitrator noted that the medical records all documented that Petitioner sustained an injury while walking.  Therefore, the Arbitrator found that walking did not arise out of a result of some risk of the employment.  Based on the finding of accident, the Arbitrator denied benefits.  The Commission affirmed the decision of the Arbitrator.

    III.             MEDICAL CAUSATION

    City of Elgin v. Illinois Workers’ Compensation Commission, 2020 IL App (2d) 190713WC-U, unpublished opinion (2d Dist. 2020)

    Petitioner was employed as a police officer.  He was assigned to transport two prisoners to the courthouse.  As Petitioner was driving, one of the prisoner’s kicked out the dividing window of the car and dived out of the car.  The prisoner ended up in front of the squad car and Petitioner had to drive across the traffic lanes avoid hitting him.  Petitioner fired three shots at the prisoner and hit him twice in the back.  The prisoner survived.  Petitioner received medical treatment for acute trauma.  Petitioner was on administrative leave with full salary.  He was anxious, depressed and fidgety. 

    Petitioner received medical treatment for PTSD.  A Section 12 physician concluded that Petitioner was malingering and this incident would not have been traumatic for a police officer.  At the request of his attorney, Petitioner was examined by a neuropsychologist, who concluded that Petitioner had PTSD and was actively symptomatic.  At the disability board hearing, two other physicians found that Petitioner had anxiety, but not PTSD.  During his divorce hearing, Petitioner stated that he was mentally and physically healthy. 

    Petitioner was not released to return to work, but struggled to pay his bills.  Accordingly, he was forced to return to work to pay the bills.  He worked as a doorman and bouncer. Petitioner experienced flashbacks and had difficulty sleeping. 


    The Commission found that the shooting incident caused PTSD.  The Commission awarded TTD benefits and medical bills.  No TPD was awarded.  Both parties filed a Petition for Review to the circuit court.  The circuit court confirmed the decision of the Commission regarding accident, causation, TTD and medical benefits, but remanded the case to the Commission to consider TPD benefits.  The Commission awarded TPD benefits.  Respondent appealed and the circuit court confirmed the decision of the Commission.

    Respondent argued that Petitioner did not experience a sudden, severe emotional shock because he did not witness any grave bodily harm.  Respondent argued that Petitioner could not be shocked by his own actions in shooting the prisoner because he chose to shoot him.  The court found that parts of the incident, including when the prisoner kicked in the window divider or when the prisoner tried to enter another car on the street and take an innocent person hostage.  Further, the fact that Petitioner was forced to shoot someone indicates that he was in a highly emotional situation.

    The court noted that Petitioner was functioning in his job until he was interrogated about the incident.  At that time, he sought medical treatment.  The court noted that while the family physician set forth that Petitioner could return to work, the specialists in the case did not agree.  Further, while Petitioner could perform many mundane job functions, it could still be unsafe to allow him to work as a police officer armed with a gun.  Petitioner only waited a month before seeking treatment and complained of symptoms immediately following the accident.  Last, Petitioner’s self-evaluation of his mental health could easily be disregarded since self-assessments are not infallible.  The court deferred to the Commission regarding credibility of the medical experts.  The court held that the Commission’s finding that Petitioner sustained a sudden, severe emotional shock was not against the manifest weight of the evidence. 

    The court noted that since it found that Petitioner continued to experience PTSD, Respondent was liable for payment of ongoing medical bills.  The court reduced the payment of TPD benefits due to a miscalculation, but did award payment of them.

    Jordan v. City of Peoria, 16 WC 35797, 20 IWCC 0531 (IWCC Sept. 16, 2020)

    Petitioner worked for Respondent as a police office.  Petitioner tripped and fell while chasing a suspect and landed on his outstretched arms.  Petitioner received medical treatment for the right wrist, including surgery.  He testified that while in physical therapy he experienced an increase in pain in the shoulder.  He sustained an injury to the right shoulder in work conditioning.  Petitioner underwent surgery for the right shoulder condition.  Petitioner also began experiencing pain in the left shoulder.  Surgery was recommended for the left shoulder condition.  Petitioner did not report left shoulder pain until several months after the work-related accident.

    The physician treating Petitioner for his shoulder condition opined that the left shoulder condition was causally connected to the work-related accident. The Section 12 physician disagreed and stated that the current condition of ill-being was not causally connected to the work-related accident.

    The Arbitrator found that Petitioner’s left shoulder condition was casually connected to the work-related accident.  The Arbitrator relied on the opinions of the treating physician.  The Arbitrator further denied reimbursement for a no-show fee to Respondent’s Section 12 exam.

    The Commission reversed the decision of the Arbitrator.  The Commission noted that Petitioner received medical treatment for eight months without complaining of left shoulder pain.  The Commission relied on the Section 12 examination which failed to note any significant findings regarding the left shoulder.  The Commission further noted that the treating doctor’s opinions were based on the history provided by Petitioner.  Based on the lack of documentation for the left shoulder complaints, the Commission found that Petitioner failed to establish medical causation.

    The Commission also failed to award reimbursement for the no show fee.  In the instant case, Petitioner was not aware of the examination until after the date had passed.  Since there was no evidence that Petitioner refused to attend the appointment, the Commission did not award reimbursement for the no show fee.

    IV.             INTOXICATION

    Green v. City of Chicago, Dept. of Aviation, 17 WC 02494, 20 IWCC 0589 (IWCC Oct. 6, 2020)


    V.                PERMANENCY BENEFITS

    Patton v. State of Illinois, DOC Stateville and Michael Frerichs as State Treasurer and Ex-Officio Rate Adjustment Fund, 11 WC 34624, 20 IWCC 0542 (IWCC Sept. 21, 2020)


    VI.             DEPENDENTS

    Johns v. Koch Foods, Inc., 17 WC 21116, 17 WC 21117, 20 IWCC 0538 (IWCC Sept. 18, 2020)

    Petitioner filed two applications for adjustment of claim in connection with two work related accidents.  The cases were consolidated for hearing.

    Read more

  • 12/09/2020 9:53 AM | Judy Pfeiffer (Administrator)

    Course of Employment- Deviations - Claimant wins benefits for parking lot wipeout despite violating company policy

    Case name: Patton v. DB Schenker, 20 IWCC 0377.

    Ruling: The Commission awarded benefits to the claimant for injuries sustained when he slipped and fell on ice in the parking lot while heading out to his car just before his lunch break.

    What it means: A claimant’s violation of his employer’s policy, by going out to his car before clocking out for lunch to start his vehicle and warm it up, does not constitute a sufficient deviation to remove him from the course and scope of his employment. The claimant did not deviate from his normal path from the main entrance to his car. The claimant did not behave recklessly or negligently when he hurried to his car. Hurrying to his car a few minutes early did not negate the fact that there were patches of ice on the parking lot pavement. The claimant, or any other employee, could have slipped and fallen on the same patch of ice if he had left during his designated lunch break 5 to 10 minutes later.

    Summary: The claimant was employed at a warehouse that sells no products. He works in a guard station on the road leading to the warehouse.  The facility, which also includes the parking lot, where the claimant worked was not owned or controlled by the employer. Both parties agree that the parking lot is used by both employees and any visitors of the facility. Petitioner testified that his supervisor told him to park in the parking lot and all the other employees also parked in the lot. Mr. Wilson denied supervisors told employees to park in the parking lot. The claimant testified that he usually ate lunch in his car. On March 3, 2019, the claimant was scheduled to work 6 p.m. to 6 a.m. He went outside a few minutes before midnight to warm up his car before his lunchbreak. While going to his car he slipped on ice and fell, injuring his back. While it was getting dark when he arrived, Petitioner noticed no snow or ice on the ground when he arrived at work.  The claimant testified that he regularly warmed up his car before clocking out for his lunch break so the car was already warm when he ate his lunch. Petitioner testified that his supervisor gave him permission to do so and was never reprimanded or disciplined for doing so. He testified that he personally witnessed other workers engaging in the same behavior. The supervisor testified this practice of going to his car before clocking out violated company policy. The arbitrator found that the claimant voluntarily exposed himself to an unnecessary personal danger solely for his own convenience.

    This case requires the Commission to consider two questions: 1) whether the parking lot where Petitioner and other employees parked is part of Respondent’s premises; 2) whether Petitioners violation of the Respondents policies regarding clocking in and out for lunch break sufficiently took Petitioner out of the course of his employment. The Illinois Appellate Court has identified three factors used to determine whether an employer provided a parking lot for the use if its employees: 1) whether the parking lot is owned by the employer; 2) whether the employer exercises control or dominion over the parking lot; and 3) whether the parking lot is a route required by the employer.                                           

    Upon review, the Commission reversed the arbitrator and awarded benefits. The totality of the evidence established that the parking lot was a “route required by the employer” because it was the only way to reach the main entrance via the parking lot and there were no alternative places where employees can park and employees had to navigate the parking lot to enter the building. Therefore, the lot was considered part of the employer’s premises. The Commission also found that the claimant’s injuries resulted directly from a hazardous condition on the employer’s premises and, therefore, arose out of the employment. Although, the Commission explained that it does not condone the claimants attempt to circumvent the employers established attendance policies. The claimant’s violation of the policy did not warrant a finding that his injury did not arise out of, or in the course of employment.

    The Commission found that the Petitioner sustained injuries that arose out of and in the course of his employment and Petitioner’s current condition of ill-being regarding his lumbar spine was causally related to the work accident. The Commission awarded appropriate TTD benefits in relation to Petitioner’s work injury.

    Arising out of Employment- Parking Lot Exception- WCA doesn’t cover sales associate’s fall in store parking lot

    Case name: Hoots v. Dollar General, 20 IWCC 0483.

    Ruling: In denying benefits, the Commission held that the claimant’s accident in a parking lot near her employer’s store did not arise out of her employment. The Petitioner was not a traveling employee because the Petitioner provided no evidence that she was paid for her travel time or for any travel expenses. The Petitioner was not at any greater risk than the general public. The arbitrator also noted there was no damage or defect noted in the lot. The arbitrator found that black ice on the parking lot would present the same risk to the general public it would to petitioner, given that the petitioner provided no credible evidence she entered or exited the store any more frequently each day of training than any customer who came into the store would.

    What it means: Where the claimant parks in a lot near her employers store, but the lot is not owned or controlled by the employer, the employer does not direct her to park in the lot, and there is no evidence that the lot is a route required by the employer, or the employer has not provided the parking lot to its employees, an injury would not arise out of the employment.

    Summary: The claimant, a sales associate trainee, was hired to work at a store not yet open. She was assigned to train at another location. The training was mandatory. The training location was next to a strip mall. There was some parking adjacent to the store, and additional parking in the adjacent strip mall. The claimant testified that she was not instructed to park in a specific location and was permitted to park in any lot. The Petitioner also testified that she did not know who owned or maintained the Dollar General Parking Lot and was trying to figure out who owned the lot when she fell. She stated that the general public can park anywhere in the Dollar General Lot. On November 19, 2017, she was scheduled to start at 8:00 a.m. She arrived at 7:50 a.m. and it was cold, wet and misty outside. She pulled into the lot and parked in a spot in a row across from the parking spots adjacent to the store. She got out of her car and walked towards the store while carrying her purse, a drink, and a folder for training. As she was walking, she slipped on some black ice and fell landing on her left ankle, knee and leg. The arbitrator denied benefits, finding the claimant failed to prove an accident arising out of and in the course of employment.

    In affirming, the Commission explained that the claimant’s accident was not compensable pursuant to Walker Bros. v. Ill. Workers’ Comp. Comm’n, 2019 IL App. (1st) 181519WC, the Illinois Appellate Court stated that in determining whether the parking lot exception applies, it must be determined whether the employer provided the parking lot in question to its employees. The factors to be considered include (1) whether the parking lot was owned by the employer; (2) whether the employer exercised control or dominion over the parking lot; and (3) whether the parking lot was a route required by the employer.

    The Petitioner argued that the fall was compensable pursuant to DeHoyas v. Industrial Comm’n, 26 Ill. 2d 110 (1962), in which the court held that as long as an employer provides parking which is customarily used by its employees, the employer is responsible for the maintenance and control of the lot. The Petitioner contends that her fall was compensable as she was attending a mandatory training, the employer provided the lot in question and permitted her to park in the lot and the black ice was a hazardous condition on the employer’s premises. As such, she was exposed to a greater risk of injury than the general public.

    The employer’s control or dominion over the parking lot is a significant factor. Here, the claimant fell in a parking lot that was neither owned nor controlled by the employer. The claimant confirmed that the employer did not direct her to park in the lot and other lots were available. There was also no evidence that the parking lot was a route required by the employer. Further, the lots were open to the general public, including customers of nearby stores. Based upon the analysis in Walker Bros. v. IWCC, the Commission found the claimant failed to prove an accident arising out of and in the course of her employment.

    Arising out of Employment- Increased Risk- Correctional officer secures benefits for injury whole traversing sidewalk

    Case name: Little v. Illinois, State of Dept. of Corrections, 20 IWCC 0461.

    Ruling: The Commission awarded benefits to the claimant for injuries sustained when she fell while traversing a sidewalk at a correctional facility.

    What it means: Where the claimant’s multiple job duties require that she traverse a sidewalk repeatedly throughout her shift and in a brisk manner, the claimant’s work activity represents a quantitively increased risk over that faced by the general public.

    Summary: The claimant, a corrections officer, worked at the Pittsfield Work Camp. Her duties included safety and security of staff and offenders. In this capacity, she regularly walked the sidewalks inside the fenced area to all the different areas of the camp. Petitioner testified that depending on her duties she can walk this sidewalk many times a day. In this capacity, she regularly walked the sidewalks inside the fenced area to all the different areas of the camp, including the housing units, gym and dietary locations. On April 3, 2016, the claimant was having a discussion with an offender when she noticed a vehicle pulled into the parking lot prior to visiting hours. The claimant then called out to a coworker and started walking toward him in an attempt to talk to him regarding an offender. As the claimant was walking briskly, which was not normal pace, she stepped off the edge of the sidewalk into the gravel area, which was about an inch or two lower than the sidewalk, and twisted her right ankle and fell. The arbitrator awarded benefits.

    The arbitrator found that given the fact that petitioner was walking briskly on the sidewalk; that the gravel on the north side of the sidewalk was ½ to 2 inches lower than the sidewalk, causing a drop off the pitched sidewalk; that petitioner walks this sidewalk many times a day depending on her job duties; that only respondent employees are allowed to walk this sidewalk alone; that visitors of inmates only walk this sidewalk when they are escorted by a Correction’s Officer; that the area where petitioner was, was a fenced in area that the general public is not allowed unless escorted by a Correction’s Officer during visiting hours and that petitioner was in the performance of her duties at the time of injury since she was walking towards a coworker to discuss an inmate issue, the arbitrator found the petitioner was at a greater risk than the general public, and therefore sustained an accidental injury that arose out of an in the course of her employment by respondent on 4/3/16 when she fell off the edge of the sidewalk onto her right side.

    The Commission noted that although the level of the gravel edging along the sidewalk was not uniform, the described variations did not constitute a defect. The first step in analyzing risk is to determine whether the claimant’s injuries resulted from an employment-related risk. Risks are distinctly associated with employment when at the time of the injury, “the employee was performing acts [s/he] was instructed to perform by [her/his] employer or acts which the employee might reasonably be expected to perform incident to [her/his] duties.

    While the evidence indicates the level of the gravel edging along the sidewalk was not uniform, the Commission did not believe the described variations constituted a defect and, therefore, found that the claimant was not exposed to an employment risk. As the claimant was not exposed to an employment risk, the Commission conducted a neutral risk analysis. Injuries resulting from a neutral risk generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to a greater degree than the general public. The evidence demonstrated that in addition to being assigned to either the gym or entrance control, the claimant was also the primary placement officer, which meant she dealt with any issues regarding the inmate’s beds, assignments, or any other problems. Her job responsibilities resulted in her repeatedly traversing the sidewalk at a fast pace in order to sufficiently do both jobs. The Commission found the claimant’s testimony of repeatedly traversing the sidewalk represented a quantitively increased risk over that faced by the general public. As such, the claimant sustained an accidental injury arising out of and in the course of employment.

    Calculation of Preinjury Wages- Bonuses-Claimant successfully proves bonus compensation should be included in AWW

    Case name: Pistorius v. Zurich North America, 20 IWCC 0463.

    Ruling: On remand from the Circuit Court, the Commission held that the claimant sustained an accident arising out of and in the course of employment and awarded medical expenses and temporary total disability benefits.

    In a case involving either or both psychological and physical injuries, both are compensable under the Act when they are related to and caused by a work-related physical injury. In “physical-mental” cases, even a minor physical contact or injury may be sufficient to trigger compensability. Moreover, an employer takes its employees as it finds them, even in cases involving mental stress.

    What it means: Where the employer offers “bonus compensation” to the claimant and claimant provides credible testimony and evidence this compensation is part of an incentive-based pay program involving diary management, sufficient evidence establishes that the bonus compensation should be included in the claimant’s average weekly wage.

                    A physical-mental case is compensable even when there is a minor physical contact or injury. The work-related physical trauma need not be the sole causative factor but need only be a causative factor of the subsequent mental condition.

    Summary: The claimant was working as a claim’s handler for the employer. Her duties included reviewing assigned claims for subrogation potential, obtaining experts if needed, obtaining and reviewing any necessary contracts to determine a responsible party, and attempting to recover attorney’s fees. She would sometimes attend mediations and prepare case summaries. She alleged that on May 27, 2014, she was entering an elevator in the building where she worked when the door hit her right shoulder and upper back, causing severe pain. The arbitrator denied benefits, and the Commission affirmed. On appeal, the Circuit reversed and remanded it to the Commission.

    First on remand from the Circuit Court, the Commission held that claimant sustained an accident arising out of and in the course of employment and awarded medical expenses and temporary total disability benefits. In order to obtain compensation under the Act, a claimant must prove that some act or phase or her employment was a causative factor in her ensuing injures. An accidental injury need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor in the resulting condition of illbeing; a chain of events which demonstrates a previous condition of good health, an accident, and subsequent injury resulting in a disability is sufficient to prove a causal nexus between the accident and the employee’s injury. On remand, the IWCC held the evidence supported a finding of the accident because a chain of events which demonstrates a previous condition of good health, an accident, and subsequent injury resulting in a disability may be sufficient to prove a causal nexus between the accident and the employee’s injury. In this case, the Petitioner claims both physical injuries and psychological injuries resulted from the accident. In these “physical-mental” cases, even a minor physical contact or injury may be sufficient to trigger compensability.

     Second, additionally on review, the claimant argued that the arbitrator should have included bonus compensation in the calculation of the claimant’s average weekly wage. The parties disputed the Petitioner’s average weekly wage for the year prior to the accident. The Arbitrator ruled that Petitioner failed to establish which portion of her total annual earnings constituted a bonus that would not be included in the annual weekly wage calculation. The claimant in a workers’ compensation proceeding has the burden of establishing her average weekly wage.  On review, the Petitioner’s primary argument is that the Arbitrator should have included bonus compensation in the calculation of the AWW. The claimant testified regarding the employer’s performance management program, particularly diary management. The claimant explained that the employer used diaries to follow up on other carriers, check on demands, prepare demands, prepare case summary reports, schedule telephone calls and document any tasks necessary. She also testified that she had monthly meetings with her manager regarding diary management and how much money she had recovered versus the goal amount. Also, the claimant testified that diary management had a direct impact on the bonuses and compensation. She noted that untimely completing the diary entries affected the performance reviews and bonus compensation. The Commission found the claimant’s unrebutted testimony sufficiently specific to establish that her bonus compensation was part of a formal, incentive- based pay program. Accordingly, the Commission determined that the bonus compensation must be included in calculating the claimant’s average weekly wage.

    Last, the Commission then considered whether Petitioner established a causal connection regarding her “physical-mental” claim. Petitioner contends that the pre-existing psychological condition was aggravated by her work-related accident. As noted earlier, even a minor physical contract or injury may be sufficient to trigger compensability. Petitioners medical records and even Dr. Jacker’s Section 12 report establish that Petitioner suffered at least a minor physical contact or injury. Therefore, the Commission found there was a causal connection between the work accident and her psychiatric condition.

    Calculation of Preinjury Wages- Part -Time Workers- Bus driver’s AWW calculation requires adjustment to avoid windfall

    Case name: Defries v. American School Bus Co, LLC, 20 IWCC 0465.

    Ruling:  The Commission held that a school bus driver’s average weekly wage should not be based on a 40- hour work week but rather should be calculated based on total earnings divided by the number of weeks in which there were earnings.

    What it means: Where the claimant is hired as a part time seasonal employee with a guarantee of 20 hours per week, her average weekly wage calculation should be based on total earnings divided by the number of weeks in which there were earnings. The calculation should not be based on a 40- hour week regardless of the claimant being ready and willing to work 40 hours per week.

    Summary: On Oct. 10, 2018, the claimant injured her right shoulder while performing her duties as a school bus driver. Petitioner drove two routes in the morning (taking the children to school) and two routes in the afternoon (taking the kids home from school) approximately a week before October 10, 2018. Prior to that time, Petitioner only drove one route in the morning and one route in the afternoon. Petitioner eventually was diagnosed with a rotator cuff injury. The Respondents witness, Timothy Poole, testified that Petitioner’s schedule changed October 5, 2018 from one route in the morning and one route in the afternoon to two routes in the morning and two routes in the afternoon. The claimant testified that she was not provided 40 hours of work each week, but was ready, willing and able to work 40 hours every week if assigned. She earned $16.25 an hour. In calculating the claimant’s average weekly wage, the arbitrator divided the claimant’s gross earnings for the 52 weeks preceding the injury, $18,753.39, by $16.25 to find she worked 1,154.05 hours during this year. The 1,154.05 hours was divided by 40 hours a week to arrive at 28.85 actual weeks worked by the weeks, equals $650.03 as the claimant’s average weekly wage.

    The arbitrator noted this was the second method of calculating average weekly wage set forth in Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 756 N.E 2d 822 (2011).  This method of calculating AWW was delineated by the Illinois Supreme Court in Sylvester v. Industrial Commission. Using this method, if any employee loses 5 or more calendar days in a work year, whether or not the days are in the same work week, the employee’s earnings are not divided by 52 weeks but by “…the number of weeks and parts thereof…. “ In this case the Petitioner lost well over 5 days of work in the year as her wage statement shows. The AWW calculation of $650.03 is correct pursuant to Sylvester. The Arbitrator found that Petitioner’s gross earnings for the 52 weeks preceding the injury were $18.753.39 and her AWW was $650.03 This method is used if an employee loses five or more calendar days in a work year. Here, the claimant lost well over five days of work in the year. On appeal, the employer argued that the arbitrator’s calculation was incorrect because the claimant worked for another employer during the “time lost” period- the summer of 2018.

    The employer argued that the claimant worked 46 of the 52 weeks at issue and the proper calculation is to divide $18,753.39 by 46 weeks, resulting in an average weekly wage of $407.68.

    The underlying dispute is whether “time lost” under the Act is to be measured in this case by a 40-hour work week. The Petitioner was hired as a part time seasonal employee with a 20-hour guarantee for route pay.

    Upon review, the Commission modified the average weekly wage calculation. The Commission explained that although the claimant testified she was ready and willing to work 40 hours per week, she was hired as a part-time seasonal employee with a guarantee of 20 hours per week. In general, for a part time employee, the average weekly wage calculation is based on the total earnings divided by the number of weeks in which there were earnings. Accordingly, the Commission reduced the average weekly wage to $407.68 as calculated by the employer. Furthermore, Illinois case law provides that a windfall should be avoided in calculating the average weekly wage. In this case, the claimant, working a 20-hour week at $16.25, would be expected to make $325 per week. The arbitrator’s award effectively doubled that amount.

    Regarding the issue of temporary disability in this case, the Commission affirmed the award, but modified the amount to reflect the Commission’s recalculation of the average weekly wage, finding that the AWW is $650.03, the Petitioner’s gross earnings for the 52 weeks preceding the injury were $18,753.39.

    More case law summaries available for download.

    Permanent Disability Benefits- PTD- Symptoms from wrist fracture, CRPS support PTD determination

    Case name: Clark v. Illinois State of Elgin Mental Health Center, 20 IWCC 0449.


    Permanent Disability- Permanent Total Disability- Claimant’s head injury merits award of PTD benefits

    Case name: Olson v. McKesson Corp., 20 IWCC 0486.


    Medical & Rehabilitation Benefits- Further Benefits- Claimant secures shoulder surgery for torn rotator cuff

    Case name: Pinales v. Koch Foods, 20 IWCC 0456.


    Benefit Payment Procedures- Unreasonable & Vexatious Conduct- Employers denial of benefits without explanation warrants section 19(k) benefits

    Case name: Meyer v. Jewel Food Stores, 20 IWCC 0451.


    Benefit Payment Procedures- Delays- Employer escapes penalties, fees for erroneously terminating benefits

    Case name: Malloy v. Synergy Co. d/b/a Nuance Solutions, 20 IWCC 0446.


    Authority of Arbitrator- Award Adjudication- Claimant secures resolution of issues despite pending section 8(a) petition

    Case name: Barickello v. Engler, Meier & Justus Inc., 20 IWCC 0452.


    Employer/Employee Categories- Contractors- Evidence points to independent contractor relationship between claimant, horse stable

    Case name: Gutierrez v. Hondo Ranch d/b/a FJK Enterprises, 20 IWCC 0387.


    Arising out of Employment- Unexplained Accidents- WCA doesn’t cover nurse’s wipeout while descending staircase at work

    Case name: Mbuthia v. Shapiro Developmental Center, 20 IWCC 0383.


    Course of Employment- Work-Related Travel- Claimant wins benefits for fall after misjudging steps

    Case name: Sims v. South Berwyn School District No. 100, 20 IWCC 0412.


    Causal Relationship- Quantum of Proof-Treating doctor provides convincing testimony of causal connection

    Case name: Madrigal v. Chicago Meat Authority, 20 IWCC 0391.


    Causal Relationship- Conditions Aging Process- Claimant fails to connect work accident to current knee condition

    Case name: Buffkins v. Bi-state Development/Metro , 20 IWCC 0398.


    Temporary Disability Benefits- Temporary Total Disability- Claimant secures TTD after employer denies approval for recommended evaluation

    Case name: American Coal Co. v. IWCC, 2020 IL App (5th) 190522WC; Motion to publish granted 11/16/20.


    Temporary Disability Benefits- Temporary Total Disability- Owner of business secures TTD despite occasionally performing work duties

    Case name: Musselman v. Shelter Builders, 20 IWCC 0396.


    Permanent Disability Benefits- Permanent Partial Disability- Police officer’s career-ending ankle injury warrants 40% PPD award

    Case name: Peoria, City of v. IWCC, Unpublished Rule 23 Decision; 2020 IL App (3rd) 190746WC-U. Case can be cited as precedential beginning January 1, 2021.


    Permanent Disability Benefits- Permanent Partial Disability- Claimant’s age, medical evidence support increase in PPD award

    Case name: Evans v. Chicago, City of, 20 IWCC 0413.


    Medical & Rehabilitation Benefits- Maintenance Benefits- Claimant wins maintenance despite employer’s challenge to his job search

    Case name: Heinz v. Combs d/b/a Tec Builders, 20 IWCC 0401.


    Authority of Commission- Jurisdiction- Claimant fails to rescind arbitrator’s approval of settlement contract

    Case name: Rojas v. Northwest Community Hospital, 20 IWCC 0405.

    Download a copy of the November case summaries.

  • 10/15/2020 1:51 PM | Judy Pfeiffer (Administrator)
    I.                   Status of Employment
    Skolimowski v. Bekin Van Lines Operations, 20 IWCC 0296
    Petitioner and her husband responded to an advertisement for an over the road truck driver position. On the application, Petitioner’s husband characterized his position as an owner-operator and they both signed the application. Petitioner’s husband and Respondent entered into an independent contractor agreement that listed the husband as the “contractor”. The agreement indicated the contractor would direct the operation and performance of all services and was responsible for determining the method and manner of travel, servicing of equipment, labor, income tax, business taxes, employer and employee taxes and fuel taxes. Both Petitioner and her husband had commercial driver licenses and traveled together across the country moving commercial business, although Petitioner’s husband owned the cab. Defendant supplied the uniforms bearing the company’s name and a logbook. Petitioner’s husband was paid by the mile and received a 1099. He would then issue a separate 1099 to Petitioner. Petitioner alleged an injury to her lower back on October 9, 2005 while pushing a heavy pallet jack. Respondent denied liability for the injury and maintained she was not an employee. 
    The Arbitrator found Petitioner was not an employee of Respondent and denied all benefits.  The Commission affirmed the Decision and reasoned Petitioner and her husband did not work assigned shifts and were not provided assigned loads. Rather, they would solicit loads by contacting the dispatcher and the loads were not guaranteed. The Commission further reasoned that although Respondent provided the delivery date, it had no control over the manner of delivery or performance of work and Petitioner could choose her own routes and schedule breaks and meals. Petitioner’s husband could also hire his own employees and he was permitted to drive for other companies if he removed Respondent’s signage. The Commission further found the manner of payment significant and that Petitioner and her husband were responsible for taxes.  Although Respondent provided uniforms and equipment and Petitioner worked as a driver, which fell under the Respondent’s general business of moving product, the Commission did not believe these facts negated the other evidence presented at trial.
    A dissenting opinion disagreed with the majority and found Petitioner was an employee of Respondent. The Commissioner did not find the independent contractor agreement persuasive.  Rather, the Commission noted the proper analysis as outlined in Roberson v. Indus. Comm’n, 225 Ill. 2d 159 (2007) was whether the employer controlled the manner in which the person performs the work, dictated the schedule, paid the worker hourly, withheld income and social security taxes, whether the employer could discharge the employee and whether the employer supplied materials and equipment. The Commissioner found Respondent exercised substantial control over the activities, required Petitioner to complete a job application and undergo a physical examination, required Petitioner to wear a uniform and provided training on driving and log books. Further, although Respondent did not mandate the routes driven, it provided a mileage limit. The Commissioner further found it significant that the truck owned by Petitioner’s husband and leased to the Respondent bore Respondent’s name, as did the trailers attached to the truck. 

    II.               Course of Employment

    MacDonnell-Dayhoff v. Village of Western Springs Police Department, 20 IWCC 0441
    Petitioner worked as a school crossing guard for the Village in the mornings and as a receptionist for the Village in the afternoon. On February 6, 2014, Petitioner parked her vehicle in angled parking on the street in front of the Village Hall and slipped on snow and ice while exiting her vehicle. Petitioner testified she parked in this location due to its proximity to the corner where she worked as a crossing guard and as a receptionist. The Village owned and maintained the parking area and also had two other parking lots. Petitioner was not instructed by the Respondent or the Village where to park and the Village permitted parking in the angled spots in front of the building. At trial, Petitioner maintained she was a traveling employee.
    The Arbitrator denied benefits and found Petitioner was exposed to a neutral risk as she chose to park on a public street in a space open to the general public. Petitioner had the opportunity to park in the Village lots, which were well maintained with frequent snow and ice removal, although Petitioner chose not to park in the lots. The Arbitrator reasoned Petitioner was exposed to the same dangers due to snow and ice as members of the general public while parked in a public parking area.
    On appeal, the Commission majority found Petitioner was not a travelling employee as her job did not require travel between job sites or travel away from her employer’s premises. However, the majority reversed the Arbitrator’s Decision and found Petitioner’s accident arose out of and in the course of her employment. The Commission first found Petitioner fell in a parking space provided by the employer. It reasoned the Village owned and maintained the lot where Petitioner parked, permitted her to park in this area and waived the four hour parking limit. Further, while the parking lot was also open to the general public, Petitioner was exposed to a hazardous condition on the employer’s premises and Petitioner did not need to prove she was exposed to the risk of hazard to a greater extent than the general public.

    III.            Accidental Injury

    Laidlaw v. Illinois, State of/Dept. of Corrections, 20 IWCC 419
    Petitioner alleged repetitive trauma injuries to her hands that resulted in carpal tunnel syndrome and lateral epicondylitis. She worked as a supervisor in the Bureau of Identification department of the Illinois Department of Corrections. Her office included a chest high counter approximately four and a half feet high where she fingerprinted inmates. Petitioner testified there are 14 motions in the process of fingerprinting that is completed by rolling the fingers in ink and then on the fingerprint card. She fingerprinted approximately 40 people per day. She further testified her job duties included using a paper cutter to cut down the fingerprint cards and cut up old ID cards, used a hole puncher for mug shots, created ID cards, assembled files and took DNA samples. However, for at least a few years Petitioner also worked for the union and her job duties also consisted of union duties. Petitioner’s treating physician opined her condition was related to her job duties that required repetitive fingerprinting.
    Respondent secured a Section 12 examination. Based on the examination and Petitioner’s description of her job duties, the expert found Petitioner’s job duties were a likely contributor to her condition, although he did not have a job description. The Section 12 examiner subsequently reviewed a job description, besides other evidence, including her union duties. He noted the job duties varied more than he initially believed and she performed duties beyond fingerprinting.  The expert further noted it was significant that Petitioner’s symptoms did not improve one and a half years after her retirement. As such, the expert found Petitioner’s condition was unrelated to her job duties.
    The Arbitrator found Petitioner failed to prove she sustained an accidental injury that arose out of and in the course of her employment.  The Arbitrator reasoned Petitioner testified to a variety of job duties. The Commission reversed and found Petitioner proved her job duties performed over 30 years were repetitive and required force and flexion and Petitioner’s statements were consistent that she attributed her symptoms to her employment. Further, Petitioner’s treating doctor opined her condition was causally related to her job duties that required repetitive fingerprinting and found the Respondent’s experts explanation for why he changed his opinion unpersuasive.
    Beshears v. KLN Enterprises, 20 IWCC 0436
    Petitioner worked as a regional sales manager, which often required travel to various states for food shows, meetings and sales calls. Petitioner testified her job duties required her to be on her feet for extended periods of time on hard surfaces. Petitioner noted increasing pain in September 2013 and while attending a food show in Texas her symptoms significantly worsened and she had difficulty ambulating. She testified that she notified her supervisor of the injury the following day. Petitioner further testified she cancelled a food show the following week due to the injury and notified her supervisor. The medical records note a chronic history of left hip and foot pain and there was no reference to an acute onset of foot pain in the records from September 2013. After Petitioner described her job duties at length to her doctor, which included a statement she was on her feet for 12 to 18 hours per day, the treating physician opined Petitioner sustained a stress fracture due to her job duties. Petitioner did not testify at trial that her job duties required her to be on her feet for 12 to 18 hours per day.
    At trial, Respondent presented witness testimony that Petitioner did not report the condition as work related until March 2014. Respondent also obtained a Section 12 examination. The expert opined there was no evidence to support a specific accident to the foot as Petitioner described a gradual onset of symptoms in September 2013. However, the doctor noted stress fractures are consistent with repetitive trauma and walking upright at work would cause stress to the second metatarsal and lead to a stress fracture.
    The Arbitrator found Petitioner met her burden of proof that she sustained an accidental injury that arose out of and in the course of her employment. The Arbitrator relied on the opinions of Petitioner’s treating doctor and Respondent’s Section 12 examiner and noted Petitioner’s job required her to stand or walk extensively in the performance of her job duties. The Commission reversed the Arbitrator’s Decision and found Petitioner failed to meet her burden of proof. It reasoned Petitioner did not testify at trial that her job required her to be on her feet for 12 to 18 hours per day, as she reported to the treating doctor. As such, she failed to present the necessary

    evidence to support the treating doctor’s causation opinion. The Commission also noted that Respondent’s Section 12 examiner opined the stress fracture was not due to a work injury and testified stress fractures are typically due to activities of daily living and caused by upright ambulation on a repetitive basis.

    IV.             Causal Relationship

    Rominski v. Service Drywall & Decorating, 20 IWCC 0089
    Petitioner worked as a journeyman carpenter and alleged an injury to his lower back on February 9, 2016 after he slipped and fell down eight to nine stairs at work. After pursuing conservative treatment, Petitioner was diagnosed with a herniated disc and underwent injections and a lumbar fusion. Respondent obtained a Section 12 examination and the doctor opined Petitioner’s examination was normal and there was nothing on the MRI to support his subjective symptoms.  The doctor opined Petitioner sustained a soft tissue injury and the subjective complaints were inconsistent with the objective findings.
    The Arbitrator found Petitioner failed to prove his back condition was causally related to the work injury.  On appeal, the Commission reversed the Arbitrator’s Decision and found the lower back condition related to the work incident. While Petitioner had a slight fender bender in 2011, the condition resolved with physical therapy and Petitioner received no treatment for his lower back from 2012 through the February 2016 work injury. The Commission also found it significant that Petitioner was capable of working full duty as a journeyman carpenter until the work accident.  Petitioner also sought immediate treatment and continued to complain of back pain throughout his care. The Commission reasoned Petitioner proved causation based on the chain of events with no evidence of symptoms in the years prior to the accident and the development of a debilitating condition immediately thereafter, which was supported by the medical records.
    Meyer v. Aramark, 20 IWCC 0439
    Petitioner worked as a bulk fold and belt operator beginning in June 2018. Her job duties included carrying large bags of linen and sorting and folding soiled and clean items onto conveyor belts and industrial hampers. She alleged a left hand and wrist injury on August 21, 2018, addressed in a separate decision, and a right hand and wrist injury on September 5, 2018.  Petitioner argued a chain of events analysis as her hands and wrists were fine before the alleged accidents. Petitioner also presented the opinion of her treating physician that found causation between the condition of ill-being and her job duties.
    The Arbitrator found Petitioner’s right hand and wrist conditions were causally related to the September 5, 2018 work injury. The Commission reversed the Arbitrator’s Decision and found the right hand and wrist complaints were not related to her job duties and rejected the chain of events theory as the evidence demonstrated Petitioner had prior right hand deficits due to a preexisting brachial plexus injury that contradicted her testimony. The Commission reasoned it was more likely than not that Petitioner’s right hand and wrist complaints were residual symptoms from her preexisting brachial plexus injury and due to deconditioning after a long absence from the work force.

    V.               Permanent Disability Benefits

    Sexton v. Illinois, State of/Secretary of State, 20 IWCC 0435
    Petitioner worked as a chief engineer and his job duties included operation and maintenance of buildings, including the refrigeration systems, heating units and water pumps. Approximately 85% of his day involved supervisory duties and 15% involved engineering labor that required use of vibratory tools, pipe wrenches and hammer drills. Petitioner alleged bilateral carpal and cubital tunnel injuries due to his repetitive job duties.  After undergoing carpal and cubital tunnel releases, Petitioner underwent a Section 12 examination that demonstrated he had ongoing pain to palpation over the bilateral medial elbow scars, positive bilateral elbow Tinel’s with tapping over the cubital tunnel and reduced grip and pinch strength. Petitioner testified to weakness in his hands with gripping and pushing and pain when using a wrench.
    In assessing permanency, the Arbitrator considered the five factors of Section 8.1(b) of the Illinois Workers’ Compensation Act.  The Arbitrator assigned no weight to the first factor as neither party offered an impairment rating and no weight to the fourth factor as Petitioner’s earning capacity was not permanently impacted by the injury. For the second factor that considered Petitioner’s occupation, the Arbitrator assigned some weight and noted Petitioner performed supervisory duties for 85% of his shift and labor for the remaining 15%. The Arbitrator assigned some weight to the third factor as Petitioner was 57 years old and had remaining work life and experienced ongoing symptoms with certain work tasks. Considering the fifth factor, the Arbitrator noted inconsistencies between Petitioner’s subjective complaints at trial and the medical records. The treating physician’s records reflect Petitioner reported 95% improvement of the symptoms on his left side and 99% improvement on the right. However, the last physician to examine Petitioner was Respondent’s Section 12 examiner and the report confirmed Petitioner’s subjective complaints of loss of strength. In considering the five factors, the Arbitrator awarded 7.5% loss of use of each hand and arm. 
    On appeal, the Commission modified the Arbitrator’s Decision finding that while it agreed with the weight the Arbitrator assigned to each factor, an award of 12.5% loss of use of the right dominant hand and arm and 7.5% loss of use of the left hand and arm was more appropriate.
    Harness v. City of Springfield, 20 IWCC 0182
    Petitioner worked as an auto body technician and sustained an injury to his left shoulder. He underwent a left shoulder arthroscopy with arthroscopic subacromial decompression, open distal clavicle excision, and open biceps tenodesis in the subpectoral region. The post-operative diagnoses were left shoulder pain with severe AC joint arthritis and bicipital tendinosis. The medical records noted objective improvement following surgery with excellent range of motion and strength, although Petitioner reported ongoing subjective pain complaints. Following a valid FCE, the treating doctor found Petitioner capable of lifting 21-50 pounds, 40 pounds floor to waist, front carry lift of 40 pounds and overhead lifting of 11-20 pounds. Respondent accommodated the permanent restrictions until the shop closed and Petitioner retired. At trial, Petitioner testified he had since reopened his own body shop a week before the hearing and intended to do flat rate insurance work.  After completing his first job, he took longer to do the work than the time allotted by the insurance company.  Petitioner testified to ongoing pain and cramping if he exceeded his restrictions.
    The Arbitrator considered the five factors of Section 8.1(b) of the Illinois Workers’ Compensation Act to assess permanency. The Arbitrator assigned no weight to the first factor as neither party offered an AMA impairment rating into evidence. The Arbitrator assigned great weight to the second factor in considering the occupation of the employee as Petitioner could no longer perform his job duties as a body technician and retired. While Petitioner recently reopened his own body shop, he took longer to perform the work. In addressing the third factor, although the Arbitrator acknowledged Petitioner’s work life expectancy was shorter than a younger worker, he will experience ongoing issues for the rest of his life and assigned greater weight to this factor. The Arbitrator assigned little weight to the fourth factor addressing Petitioner’s future earnings capacity as the parties offered no credible evidence on this issue and the anticipated future earnings from his new business were unknown. The Arbitrator assigned great weight to the fifth factor as the records demonstrated Petitioner received permanent restrictions that precluded him from working his regular job and testified to ongoing pain.  After considering all five factors, the Arbitrator awarded 35% loss of use of the person as a whole.
    On appeal, the Commission modified the award and reduced it to 27.5% loss of use of the person as a whole. In modifying the award, the Commission addressed the second and third factors and reasoned Petitioner was a retired worker with a part time business and as such, he should not be compensated for a loss of occupation. Rather, the Commission found Petitioner’s permanency should be focused on the fifth factor and agreed with the Arbitrator’s analysis of said factor.

    VI.            Medical & Rehabilitation Benefits

    Salas v. City of Chicago/Dept. of Transportation, 20 IWCC 0292
    Petitioner sustained an injury to his left knee on December 7, 2005 while working as a cement finisher. He reached maximum medical improvement on January 3, 2008 and received permanent restrictions that precluded him from returning to work.  Petitioner underwent a vocational rehabilitation assessment on February 11, 2009 that found Petitioner could perform some jobs if the city accommodated his restrictions or he would require vocational rehabilitation. Vocational rehabilitation training commenced by Petitioner on a periodic basis and then Respondent provided vocational rehabilitation services as of May 18, 2012. Petitioner participated fully in vocational services between 2012 and 2017. Petitioner then engaged his own vocational rehabilitation counselor and his counselor issued a report on December 5, 2017 that found Petitioner was no longer a viable vocational candidate as he was not employable in a stable labor market.
    At trial, the Arbitrator awarded maintenance benefits from January 4, 2008 through the date of hearing on August 15, 2018 and thereafter awarded permanent total disability benefits to commence on August 16, 2018.
    The Commission affirmed the Arbitrator’s Decision but modified the date of termination for maintenance benefits. The Commission found that despite having a very large workforce, the Respondent failed to accommodate the restrictions and although the case met the requirements, the Respondent never secured a vocational assessment pursuant to Commission Rule 9110.10.  Rather, the Respondent did not timely initiate the vocational process. Based on the December 5, 2017 vocational rehabilitation report, the Commission found Petitioner permanently totally disabled as of December 5, 2017 and modified the Arbitrator’s decision and awarded maintenance benefits from January 4, 2008 through December 5, 2017 and permanent total disability benefits commencing December 6, 2017.

    VII.         Benefit Payment Procedures

    Brewster v. City of Chicago, 20 IWCC 0369
    Petitioner worked as a truck driver. On June 25, 2015, Petitioner sustained an injury to his lower back.  He underwent an L5-S1 laminectomy on January 24, 2018 and was released to full duty work on June 19, 2018. Petitioner did not attempt to return to work as he continued to take narcotic medication for the injury. Petitioner returned to the doctor on June 27, 2018 and received a light duty note. The treating doctor subsequently recommended an FCE on July 10, 2018 due to Petitioner’s “inability to work full duties safely.” An FCE determined Petitioner could not perform the full demands of his job as a truck driver and on August 7, 2018 the doctor provided permanent restrictions of no lifting greater than 20 pounds, limited bending and walking and no driving. Petitioner testified he provided the work status note to Respondent’s nurse and the adjuster and spoke to his general foreman. Respondent did not accommodate Petitioner’s restrictions since June 27, 2018. Respondent did not present medical evidence of Petitioner’s condition from June 27, 2018 through August 7, 2018 and argued it was not liable for TTD benefits based on the prior June 19, 2018 full duty release.
    The Arbitrator awarded TTD benefits between June 27, 2018 and August 7, 2018. The Arbitrator found the Respondent failed to present any basis for non-payment of benefits during this period and concluded Respondent’s delay in payment was unreasonable within the meaning of Section 19(l) and its behavior was vexatious within the meaning of Section 19(k). The Arbitrator awarded penalties under Sections 19(l) and 19(k) and attorney’s fees pursuant to Section 16.  The Commission affirmed the Arbitrator’s award of penalties pursuant to Section 19(l) but reversed the award of penalties and attorney’s fees under Sections 19(k) and 16.  It reasoned that penalties under Section 19(k) are reserved for situations where there is a delay and the delay is deliberate or the result of bad faith or improper purpose. The Commission found Respondent’s skepticism of the restrictions after the initial full duty release reasonable and its behavior did not meet the standard for an award of penalties under Section 19(k).  The Commission also vacated the award for attorney fees as Section 16 provides for an award of fees only when awarded penalties under Section 19(k).

    VIII.      Hearing Level Procedures

    Benge v. Knapheide Manufacturing Co., 20 IWCC 0366
    Petitioner filed three Applications for Adjustment of Claim alleging three separate accidents against the same employer. Two of the Applications alleged injuries in 2014 to the back and were consolidated in 2016 and a third Application alleged an injury to the left hand in 2002.  Petitioner filed a Motion for Reassignment to consolidate all three claims. Respondent opposed the motion arguing Petitioner continued treatment for the 2002 claim for the left hand injury, while the 2014 claims alleging injuries to the lower back were postured for hearing.
    The Commission denied Petitioner’s Motion for Reassignment and found Respondent showed good cause for objecting to the consolidation. The Commission reasoned that while Rule 9030.10(d) indicates cases shall be reassigned if either the claimant files multiple Applications against the same employer or the claimant files multiple Applications against different employers but arising out of injury to the same body part, there is an exception. While the language of the rule indicates the cases shall be consolidated upon motion of any party, modification of Rule 9030.10(d) in November 2016 added language that the Commission can make an exception based on a showing of good cause by the objecting party. The Commission further reasoned that requiring the parties to conduct two separate hearings based on the specific circumstances of this case was consistent with Section 16 of the Act that requires the process and procedures before the Commission be as simple and summary as reasonably possible.

    Download pdf.

  • 10/15/2020 1:08 PM | Judy Pfeiffer (Administrator)
    I.                   Arising Out of Employment

    Butler v. Illinois, State of/Veterans Home of Anna, 20 IWCC 0348

    Petitioner worked as a secretary for a residential facility. She alleged multiple injuries from a fall due to a broken chair.  Petitioner testified she returned to her workstation when the floor mat slid and she grabbed her chair.  When she grabbed her chair, two bolts in the chair broke and Petitioner fell.  Petitioner testified the floor was slippery and the floor mats did not have slip resistant backing.  Petitioner provided her own desk and chair due to the condition of the employer’s equipment and the employer did not object. Witness testimony and injury reports reflect Petitioner’s chair broke as she attempted to sit down.  There was a dispute as to whether Petitioner was merely sitting down when the chair broke or if the incident occurred due to the floor mat.

    The Arbitrator found Petitioner sustained an accidental injury that arose out of and in the course of her employment.  The Arbitrator reasoned that it was irrelevant whether the injury occurred due to the floor mat or while Petitioner was merely sitting down in the chair as the accident occurred due to an unsafe or hazardous condition on the employer’s premises.  The Arbitrator was not persuaded by Respondent’s argument that the incident constituted a personal risk as Petitioner used her own chair and reasoned she used personal equipment for the benefit of the employer to which the employer acquiesced.  The Commission affirmed the Decision.

    Giglio v. Illinois, State of/Police, 20 IWCC 0334

    Petitioner alleged an injury to his neck and upper back on February 14, 2018 while performing a burpee exercise during a six month cadet training program.  His training supervisor noticed the claimant stopped the exercise and brought him in front the class to finish the work out to “make an example of him.” Petitioner did not immediately report the incident as he desired to complete the academy.  Although Petitioner testified to ongoing pain, he completed the remainder of the session that week.  Thereafter he sought treatment on February 17, 2018 and reported increasing pain during training at the police academy, although he did not report the specific incident. He was diagnosed with cervical radiculopathy.  After this evaluation, Petitioner reported the incident to his supervisor via text message and they discharged him from the academy to return in the next class.  Petitioner did not return to the academy until the following session in June 2018.

    The Arbitrator found Petitioner sustained an accidental injury that arose out of and in the course of his employment. Although Petitioner did not immediately report the incident when it occurred, the Arbitrator reasoned Petitioner did not want to jeopardize completing the academy.  While Petitioner did not report the specific incident during his initial evaluation on February 17, 2018, the Arbitrator noted Petitioner reported pain that originated during training at the police academy.  The Commission affirmed the Arbitrator’s Decision.

    II.                Course of Employment

    Suits v. Marquette Group, 2020 IL App (3d) 190491 WC-U

    Petitioner worked for a marketing company on the seventh floor of a building. Her employer permitted a 30 minute lunch break and two 15 minute breaks. Petitioner and other colleagues often walked during the breaks. The employer encouraged the practice, implemented a wellness program and provided pedometers. Petitioner alleged two separate injuries that occurred while walking. She first alleged an injury on June 6, 2012 when she tripped on a raised piece of concrete three blocks from the employer’s premises and a second accident on November 14, 2012 when she twisted her ankle and fell one half block from the employer’s premises.

    The Arbitrator found the accidents did not arise out of or in the course of Petitioner’s employment. The Commission affirmed the Decision, which was then affirmed by the Circuit Court. Petitioner appealed to the Appellate Court.  The Court found the Decision was not against the manifest weight of the evidence. In denying accident, the Court noted that while Petitioner was engaged in an act of personal comfort, she did so off the employer’s premises and cited Eagle Discount Supermarket v. Indus. Comm’n, 82 Ill. 2d 331 (1980), in finding the most important factor to consider was the location of the accident.  Petitioner sustained injuries off the employer’s premises and she was exposed to risks outside the employer’s control.

    Lonergan v. Sanctuary Hospice, 20 IWCC 0344

    Petitioner worked as a nurse liaison and her job duties included traveling to doctors’ offices and hospitals.  She testified 90% of her job duties required travel to various facilities. On January 17, 2014, Petitioner left a meeting at an assisted-living facility when she slipped and twisted her knee. Petitioner did not testify to the cause of her fall and the medical records indicated her knee gave out. She subsequently theorized she could have slipped on ice or tripped on uneven asphalt.

    The Arbitrator found Petitioner was a traveling employee and her accident arose out of and in the course of her employment. The Commission reversed the Arbitrator’s Decision and found that while Petitioner was a traveling employee, she still had the burden to prove compensability and Petitioner failed to prove the cause of her fall. The evidence suggested Petitioner did not know the cause of her injury and her indication it could have occurred due to ice or uneven asphalt was mere speculation.

    III.             Accidental Injuries

    Boston v. River Birch Senior Living LLC, 20 IWCC 0365

    Petitioner worked as a CNA supervisor and her job duties required that she be on call for one to two weeks per month. While completing her shift, Petitioner discovered another caregiver left her assignment without finishing her tasks and used her on call phone to report this to her manager. While driving home after her shift, Petitioner received threatening text messages on her personal phone from the co-worker she reported. Petitioner reported this to her manager. She then received a call from the co-worker that she was at the Petitioner’s home. Petitioner returned home where the co-worker confronted her and Petitioner testified she pushed the co-worker as she felt threatened and a physical altercation ensued. Petitioner left and returned a few hours later when they engaged in another physical altercation. Although the incident occurred off the employer’s premises, Petitioner maintained her injuries arose out of and in the course of her employment as she was on call when the incident occurred. 

    The Arbitrator found Petitioner failed to prove her accident arose out of and in the course of her employment and reasoned all communication with the co-worker occurred via Petitioner’s personal cell phone. Further, Petitioner did not attempt to prevent the altercation by calling the police or contacting her employer after she knew the co-worker was waiting for her at home or after the first physical altercation. The Arbitrator also found it significant that Petitioner pushed the co-worker and the fight ensued, although Petitioner testified this was due to a perceived threat. Nevertheless, the Arbitrator found it significant that Petitioner was the first to make personal contact. The Arbitrator reasoned any actions Petitioner took after she was aware the co-worker was waiting for her in the parking lot became personal actions. The Commission affirmed.

    Eaton v. Morris Hospital, 20 IWCC 0330

    Petitioner alleged bilateral carpal tunnel syndrome due to her repetitive job duties as a nurse.  Petitioner’s treating physician reviewed a job description, which indicated Petitioner’s job required her to use her hands and fingers for pushing, pulling and repetitive grasping for seven or more hours per day. However, at trial Petitioner did not testify that her job duties required repetitive grasping and pulling or that she experienced symptoms while performing her job duties. Petitioner testified at trial that her job did not require fine manipulation. Respondent obtained a Section 12 examination and the doctor opined Petitioner’s carpal tunnel syndrome was idiopathic in nature and not related to her job duties as there was no evidence of highly repetitive flexion and wrist extension coupled with forceful grasping.

    The Arbitrator found Petitioner proved she sustained an accidental injury that arose out of and in the course of her employment after finding the treating doctor’s opinion persuasive. The Arbitrator reasoned the treating doctor reviewed the job description in formulating his opinions. 

    The Commission reversed the Arbitrator’s Decision and found Petitioner failed to prove her condition of ill-being was causally related to her job duties. The Commission reasoned the treating doctor based his opinion on assumptions made after reviewing the job description, which Petitioner did not corroborate through her trial testimony.  She also did not testify that she experienced carpal tunnel symptoms while performing her job duties at work and only testified that she experienced pain while sleeping. The Commission further reasoned the medical records did not document carpal tunnel symptoms until one year after she last worked for Respondent. The Commission further found Respondent’s Section 12 examiner’s opinion persuasive as the doctor had a more accurate and complete understanding of Petitioner’s condition and job duties.

    IV.             Permanent Disability Benefits

    Sanders v. Chicago, City of/Dept. of Water Management, 20 IWCC 0343

    Petitioner worked as a construction laborer and sustained injuries to his right knee, right elbow, left finger and right foot resulting from a motorcycle accident that occurred while en route to a restaurant to use the restroom.

    The Arbitrator awarded a wage differential pursuant to Section 8(d)1 for the right knee injury and 5% loss of use of the right arm and 15% loss of use of the left little finger pursuant to Section 8(e). The Commission affirmed the Arbitrator’s wage differential award under Section 8(d)1 but vacated the award under Section 8(e).  The Commission reasoned that pursuant to the holding in General Electric Co. v. Indust. Comm’n, 89 Ill. 2d 432 (1982), compensation is proper under either Section 8(d)1 or 8(e), although compensation cannot be awarded under both sections for injuries resulting from the same accident.

    Bush v. Illinois, State of/Dept. of Transportation, 20 IWCC 0358

    Petitioner worked as a highway maintainer and testified his job required forceful gripping and pulling of pipes with large pipe wrenches. He was diagnosed with bilateral ulnar and median neuropathies and left epicondylitis and underwent bilateral carpal tunnel releases and ulnar nerve transpositions. He also received an injection for his left elbow epicondylitis/interstitial partial tear. Petitioner attributed his upper extremity conditions to his repetitive job duties.  The medical records reflect Petitioner had a prior radius fracture and underwent open reduction internal fixation and a carpal tunnel release. At trial, Petitioner testified he still experienced reduced strength and grip strength in both arms and hands. He also reported pain in his right elbow. Petitioner further testified that while he returned to his full duty job, he could no longer engage in extra work as a tree trimmer, although he presented no evidence as to income loss.  The parties proceeded to hearing regarding the nature and extent of the injuries.

    In assessing permanency, the Arbitrator considered the five factors of Section 8.1(b).  The Arbitrator assigned no weight to the first factor as neither party presented an impairment rating. In considering the second factor, the Arbitrator assigned significant weight due to Petitioner’s job as a highway maintainer, which required significant repetitive use of his upper extremities and he continued to experience symptoms. The Arbitrator assigned minimal weight to the third factor as Petitioner failed to present any evidence of lost income due to his inability to perform extra work as a tree trimmer. Given Petitioner’s age of 50, the Arbitrator assigned moderate weight to the fourth factor as Petitioner would live with the effects of the injury for the remainder of his work and natural life. Finally, the Arbitrator assigned significant weight to the fifth factor, but primarily focused on the nature of the treatment and Petitioner’s residual symptoms. The Arbitrator awarded 12.5% loss of use of the right hand, 15% loss of use the left hand, 12.5% loss of use of the right arm and 20% loss of use of the left arm.

    The Commission majority affirmed the Arbitrator’s Decision. However, a dissenting Commissioner found that since Petitioner actually returned to his full duty work, the second factor weighed in favor of decreased permanent disability. Additionally, in considering the fifth factor, the Commissioner found the Arbitrator failed to actually compare Petitioner’s subjective complaints to the medical records. When doing so, the Commissioner found the records did not wholly support Petitioner’s subjective complaints and weighed in favor of decreased permanent disability. As such, the Commissioner would have awarded 7.5% loss of use of the right hand, 10% loss of use of the left hand, 10% loss of use of the right arm and 15% loss of use of the left arm.

    V.                Death Benefits & Beneficiaries

    Holley v. American Coal Co., 20 IWCC 0345

    Decedent filed an Application for Adjustment of Claim on July 31, 2015 alleging injuries due to workers’ pneumoconiosis. He died on April 28, 2016 after refusing treatment for stomach cancer. The Application was amended to list the Estate of decedent as the Petitioner. Thereafter, the parties proceeded to hearing on May 15, 2019 and decedent’s daughter testified at hearing among other witnesses. The Arbitrator found decedent’s condition causally related to his job duties as a coal miner and awarded permanency benefits. After the hearing, Petitioner’s counsel filed a “Petition to Amend Application for Substitution of Party” to substitute decedent’s daughter as Petitioner before the Commissioner without objection by Respondent’s counsel. The Commissioner granted the Petition as decedent’s daughter was an eligible beneficiary under the Act. The majority affirmed the Decision as decedent’s daughter was an eligible dependent under the Act and distinguished this case from Ill. State Treasurer v. Estate of Kormany, 140 N.E.3d 821 (2019), which held that the Commission’s jurisdiction was suspended until a representative of the Estate was properly appointed, as there was no finding in Kormany that the deceased claimant died with a spouse or dependent.

    A dissenting Commissioner disagreed and found Kormany controlled and compelled the Commission to vacate the Decision of the Arbitrator until a representative of the Estate was properly appointed. The Commissioner maintained that if a claimant dies of unrelated causes then there must be a legal representative appointed to prosecute the claim and the Commission did not possess authority to appoint a representative.

    VI.             Claim Filing Procedure

    Ramsey v. Illinois Emergency Management Agency, 20 IWCC 0350

    Petitioner worked as an office coordinator and alleged repetitive trauma injuries to her thumbs and elbows. Petitioner suffered from symptoms since 2011 and on December 1, 2016, she told her doctor that her symptoms were attributable to her job duties over 20 years. She filed an Application for Adjustment of Claim on January 8, 2018. Petitioner testified she wore hand braces every day while at work. Respondent’s witness testified that while he saw Petitioner wearing braces in the office, he was unaware the underlying condition was related to her job duties until he received a letter from her attorney in January 2018.

    The Arbitrator found December 1, 2016, the date of her evaluation during which Petitioner attributed her symptoms to her job duties, was the appropriate accident date. As a result, the Arbitrator further found Petitioner failed to provide proper notice within the requirements of the Illinois Workers’ Compensation Act. The Commission affirmed the Arbitrator’s Decision and reasoned that while her supervisor saw her wearing braces at work, it did not constitute actual, defective or inaccurate notice of an alleged injury and Respondent did not need to prove undue prejudice.

    VII.          Petitions to Review

    Sloniker v. Aspen Construction Systems, 20 IWCC 0337

    Petitioner previously received a wage differential award pursuant to Section 8(d)1, which was based in part on Petitioner’s low back pain due to an annular tear at L4-5. Respondent filed a Petition under Section 19(h) a few years later alleging Petitioner’s disability diminished and the wage differential benefits should be terminated and the award converted to an award under Section 8(d)2. Respondent argued the medical records after hearing suggested that Petitioner’s annual tear resolved and as such, Petitioner’s disability diminished or ended. Respondent relied in part on an office note composed by the treating doctor’s nurse practitioner that indicated Petitioner’s annular tear resolved following an updated MRI. The medical records and imaging also suggested new findings at L5-S1. 

    The parties presented conflicting opinions regarding Petitioner’s condition. Petitioner’s treating doctor testified that while his nurse practitioner indicated otherwise in the office note, the presence or absence of an annual tear needs to be confirmed through discography. Nevertheless, the MRI demonstrated other findings of disc degeneration consistent with his clinical presentation and some signal from the area near the prior annular tear. The treating doctor found there was not a material anatomic change in Petitioner’s condition. Respondent’s expert testified that the treating doctor believed the annual tear resolved per the medical records. The expert reviewed the MRI and noted there was no annular tear to “any significant degree” and they always leave some remnant left on imaging but nothing significant. Respondent’s expert also believed Petitioner only experienced a lumbar strain and attributed his degenerative disease to Petitioner’s age.

    The Commission denied Respondent’s Petition and found the opinions of the treating doctor most persuasive. The Commission reasoned Respondent’s expert did not refute the treating doctor’s testimony that the MRI demonstrated an ongoing signal that could suggest a persistent annular tear. Further, the fact Respondent’s expert noted annular tears leave remnants behind on MRI suggested there was still something present on the MRI, although the expert did not find it significant. The Commission also considered whether the annular tear diminished and if that diminished Petitioner’s disability and was persuaded by the treating doctor’s testimony that the presence of an annular tear needs to be confirmed by discography. Nevertheless, even if the annular tear diminished, that did not necessarily support a finding that Petitioner’s disability itself diminished to the point where his pain decreased and he could return to his prior job. The Commission further reasoned the Respondent’s expert did not review the prior MRIs which would make it difficult to determine if the pathology changed. The Commission also noted the expert’s diagnosis of a lumbar strain and age related degenerative disease was not persuasive as the diagnosis and causation had been adjudicated by the Arbitrator at hearing.

    Download pdf.

  • 09/21/2020 7:48 AM | Judy Pfeiffer (Administrator)

    Status of Employment/ Right to Control: Garrett v. Chad-Nic Management Services Inc. d/b/a Shiloh Commons, 28 ILWCLB 111 (Ill. W.C. Comm. 2020).

    The Petitioner was working in an apartment complex in a maintenance capacity when injured. Respondent argued that the Petitioner was an independent contractor and an employment relationship did not exist. Petitioner argued he was an employee of Respondent, the apartment management company.

    The Petitioner was paid a base hourly rate for hours worked and submitted time sheets. He was paid twice a month, the same as the other employees of the company. He was not paid per job or project completed. Respondent furnished tools, provided to the Petitioner with shirts to wear at work and provided daily tasks to be completed.    

    The Arbitrator took into account Respondent’s right to control the Petitioner in determining if an employment relationship existed. The Arbitrator found that the Respondent, through the property manager, controlled the manner in which the Petitioner performed his work and found the Petitioner was an employee of Respondent. The Commission affirmed and adopted the decision of the Arbitrator.   

    Arising Out of Employment/ Mental Disabilities: Carpenter v. Chicago Transit Authority, 28 ILWCLB 112 (Ill. W.C. Comm. 2020).

    The Petitioner was employed as a bus driver for the City of Chicago. On the date of the alleged accident she was driving a CTA bus when she witnessed two men shooting at each other. The bus was in the crossfire and was not far from the location of the shooting. Neither of the men were injured, nor was the Petitioner or anyone on the bus.  The Petitioner alleged severe emotional shock and claimed a “mental-mental” injury.

    The case discussed the Illinois Supreme Court case Pathfinder Co. v. Industrial Commission. In Pathfinder, the court reasoned when there is a direct observation of a shocking physical situation, that causes a Petitioner’s mental stress, that mental stress could be compensable. Additionally, where there is a sudden, se­vere emotional shock traceable to a definite time, place, and cause, which leads to psychological injury or harm, that Petitioner has suffered an accident within the meaning of the Workers Compensation Act.  

    The Arbitrator reviewed the video footage of the incident and determined that it was reasonable that the Petitioner would have felt her life was in danger which caused mental stress. This was supported by her testimony and the mental health medical records. The Commission affirmed and adopted the decision of the Arbitrator. 

    Arising Out of Employment/ Employment Risks: Cook v. Illinois, State of/Dept. of Human Services, 28 ILWCLB 113 (Ill. W.C. Comm. 2020).

    The Petitioner was employed as a mental health technician, which required her to work with mentally challenged patients in their homes. On the date of accident, she was walking into the kitchen to clean dishes after lunch. She had nothing in her hands at the time. She rolled up her sleeves in preparation to wash the dishes. In rolling up her sleeves, she struck her left hand on the wall. She sustained a contusion of her left hand and underwent surgery. The Respondent denied the case, stating there was no increased risk associated with mechanism of injury, of her hand hitting the wall.

    The Arbitrator reasoned that the Petitioner’s work in cleaning up after patients and rolling up her sleeves to clean dishes put her at an increased risk of injury. The Arbitrator also reasoned that the injury was compensable under personal comfort doctrine because rolling up her sleeves to avoid getting water on her clothing was a reasonable act of personal comfort. The Arbitrator indicated the injury was compensable under both of these theories.

    The Respondent appealed the Arbitrator’s decision. The Commission determined that the Petitioner was injured due to employment related risk. Commissioner Coppoletti dissented stating the majority opinion focused its risk analysis on the act of rolling up her sleeves and not the injury of hitting her hand on the wall. Hitting her hand on the wall was a neutral risk and nothing about her employment increased the risk of hitting her hand on the wall.

    Course of Employment/Scope of Duties: Maddy v. Purdy Brothers Trucking, 28 ILWCLB 114 (Ill. W.C. Comm. 2020).

    The Petitioner’s job title was spotter for a trucking company. His job required him to move tractor-trailers to different docks for a customer’s processing plant.  His employer offered the processing plant the option, at an additional cost, to remove loads from trailers. On the date of the accident the Petitioner unloaded a trailer, at the request of a plant employee, and injured his knee and wrist. The unloading service was not paid for by the plant for this load.

    Respondent argued that the employee was not in the scope of his employment because he was not permitted to help unload trailers unless that service was paid for.

    The Arbitrator reasoned that at the time of the accident, the Petitioner unloading a trailer, would not be deemed unreasonable or unusual. The Arbitrator concluded that the employer acquiesced to the Petitioner removing the loads from the trailer without charging the customer. The Respondent appealed the decision and the Commission affirmed and adopted the decision.

    Causal Relationship/ Skeletal Conditions:  Fornear v. Illinois, State of/Dept. of Cor­rections, 28 ILWCLB 115 (Ill. W.C. Comm. 2020).

    The Petitioner alleged a repetitive trauma to his bilateral hips due to his work as a correctional officer. He alleged that he repeatedly traversed multiple flights of stairs throughout his shift and did so while wearing a 12-pound duty belt.

    The Respondent secured the opinion of a Section 12 examiner who opined that the Petitioner’s greater trochanteric bursitis was related to his tight iliotibial bands, and not related to his work duties. The Section 12 doctor noted that the Petitioner’s hips had deteriorated so much that any normal daily activity would be an overexertion.

    The Arbitrator found the Petitioner failed to prove bilateral hip injury was causally related to a repetitive trauma due to his work duties. The Commission affirmed the decision noting the Section 12 examiner was credible as the Petitioner still had pain despite being off work for 7 years. Commissioner McCarthy dissented to the majority opinion noting that the Petitioner’s job duties could have aggravated the tight iliotibial bands on both hips.

    TPD – Petitioner wins award despite not requesting such benefits Robinson v. Walmart, 28 ILWCLB 116 (Ill. W.C. Comm. 2020).

    Petitioner was involved in a work accident at her retail job. Following her accident, Petitioner was placed off work but she continued to be compensated for serving as a caretaker for her mother. The Arbitrator acknowledged that normally a petitioner is entitled to TTD benefits while they are off work. Here, because Petitioner testified that she was compensated for her role as a caretaker, she was not entitled to TTD benefits. The Commission modified the Arbitrator’s decision by awarding TPD benefits for the period while Petitioner was off work from her retail job but earned some income even though she did not formally request the benefits. 

    In this case, the Commission reasoned that while Petitioner did receive some income for her work as a caretaker, her condition did not stabilize enough for her to return to her retail job. Therefore, Petitioner was entitled to TPD benefits for the period she was off work from her retail job. As such, the Commission can award warranted benefits even if a petitioner does not formally request them.

    Permanency Value / PPD Benefits Gabriel v. Menards, 28 ILWCLB 117 (Ill. W.C. Comm. 2020).

    Petitioner was employed as millwright whose job required a heavy demand level. Petitioner injured his back in a lifting accident and was diagnosed with degenerative lumbar spine disease and a disk herniation. Petitioner pursued conservative treatment, and ultimately a functional capacity evaluation was obtained which found Petitioner could work at a medium demand level. Petitioner was placed at maximum medical improvement with lifting restrictions that were less than what his job required but Petitioner’s employer was able to accommodate his restrictions.

    After conducting a permanency analysis, the Arbitrator found Petitioner’s injury carried exposure of 25% LOU of the person as a whole. The Commission reduced the permanent disability award to 15% LOU of the person as a whole. The Commission reasoned that Petitioner returned to work full duty, continued with his normal position and received assistance when lifting heavy items when necessary. Although Petitioner testified that he changed careers to find something less physically demanding, there was no evidence that any doctor ever recommended a change in careers. Further, Petitioner never sought additional medical treatment nor did he complain of any ongoing low back symptoms while he continued to work for his employer. The Commission found there was no evidence that Petitioner was unable to find another job in his original profession within his permanent lifting restrictions, instead he independently decided he wanted to pursue a more sedentary job.

    Permanency Value / PPD Benefits Parr v. University of Illinois, 28 ILWCLB 118 (Ill. W.C. Comm. 2020).

    Petitioner injured his right ankle when he fell off a ladder while working as a building mechanic. Petitioner underwent surgery and his postoperative diagnosis was an acute traumatic displaced bimalleolar fracture of the right lower leg.

    The Arbitrator found that Petitioner sustained a 40% loss of use of the right leg under Section 8(e) of the Act. The Commission modified the award by applying Petitioner’s permanent disability to the right foot instead of the leg. The Commission reasoned that Petitioner’s fractures were located at the ankle joint, and the implanted hardware did not extend far past that joint. Additionally, the medical records, which included imaging and operative reports, office notes, and physical therapy records only supported an injury to Petitioner’s right ankle.

     

    Medical / Rehabilitation Benefits – Vocational Rehabilitation – Bucaro v. Illinois Guaranty Fund, 28 ILWCLB 119 (Ill. W.C. Comm. 2020).

    Petitioner injured his left shoulder while working as an elevator mechanic. Petitioner’s treatment included four injections, two surgeries, and he was eventually released with permanent restrictions. Petitioner was given permanent restrictions pursuant to a functional capacity test when he was finally released at maximum medical improvement. Petitioner requested in writing that his employer either accommodate his permanent restrictions or commence a vocational rehabilitation service. Petitioner’s employer did not respond to Petitioner’s written request, and he hired a vocational rehabilitation service on his own. The rehabilitation provider’s services did not lead to any employment, and as such Petitioner ultimately found work on his own with another elevator company. Petitioner’s new job accommodated his permanent restrictions and gave him a pay raise although his job title remained the same as his prior job.

    At trial, the Arbitrator found Petitioner was not entitled to vocational rehabilitation services based on his return to an identical job with higher earnings. The Commission reversed the Arbitrator’s findings regarding the vocational rehabilitation and ordered the employer to pay for the services. The Commission reasoned that Petitioner’s entitlement to vocational rehabilitation services should not be determined by the end result achieved by Petitioner’s efforts to look for work. Therefore, the purpose of vocational rehabilitation is to find suitable employment for a petitioner. In awarding, vocational rehabilitation, the Commission noted that the evidence demonstrated that Petitioner’s potential loss of job security was due to a compensable injury, and there was a likelihood he could obtain employment upon completion of his training.

    Medical / Rehabilitation Benefits – Pain Treatments – Vasquez v. Walmart, 28 ILWCLB 120 (Ill. W.C. Comm. 2020).

    Petitioner worked as a forklift driver who injured her left wrist in a work accident when she pulled a rope to open an overhead dock door. Petitioner was diagnosed with a TFCC tear and CRPS of her left arm. One of Petitioner’s doctors recommended a dorsal column stimulator, but her orthopedic specialist did not believe she met the criteria of CRPS and recommended she be evaluated by a pain management specialist instead to confirm her diagnosis.

    The Arbitrator found causation satisfied but questioned the severity of her condition based on surveillance footage. The Arbitrator denied recommendations for the stimulator reasoning it was not reasonable or necessary. On appeal, the Commission agreed there was insufficient evidence to justify the need for the stimulator given the unreliability of Petitioner’s reported symptoms based on video surveillance. However, the Commission found that a treating doctor’s uncontroverted recommendation for further evaluation was appropriate to confirm Petitioner’s diagnosis and then determine the best treatment plan.

    Authority of Commission – Review of Settlement Agreements – Cowger v. CPC Logistics Inc., 28 ILWCLB 121 (Ill. W.C. Comm. 2020).

    The parties entered into a settlement contract, to resolve this matter for $100.00 on a disputed basis. The contract was approved by the Arbitrator, and then three weeks later, an attorney filed a petition for review on Petitioner’s behalf seeking rescission of the Arbitrator’s approval of the contract and review of all issues related to the claim.

    The Commission reviewed this case to determine if the settlement contract was properly executed in order to determine if its approval should be upheld. The Commission found the settlement contract was not properly executed and therefore vacated the Arbitrator’s approval. The Commission reasoned that Section 9070.10(b) of the Illinois Administrative Code states that settlement contract forms must be completed in full and accompanied by an appropriate signed physician’s report concerning the nature, extent, and probable duration of the disability resulting from the alleged accident. Here, the Commission found that the settlement contract at issue was not completed in full because there were multiple inconsistencies with the settlement contract and accompanying documents, including whether disputed medical bills have been paid by the employer.

    Garrett v. Chad-Nic Management Services, Inc.
    20 I.W.C.C. 0265
    18 WC 32235

    Carpenter v. CTA - (No Citation)

    Cook v. State of Illinois/Dept. of Human Services
    20 I.W.C.C. 0269
    18 WC 04529

    Maddy v. Purdy Brothers Trucking
    20 I.W.C.C. 0274
    19 WC 05686

    Fornear v. State of Illinois/Dept. of Corrections - (No Citation)

    Robinson v. Wal-Mart - (No Citation)

    Gabriel v. Menards
    20 I.W.C.C. 0260
    15 WC 24061

    Parr v. University of Illinois
    20 I.W.C.C. 0261
    19 WC 18610

    Bucaro v. Illinois Guaranty Fund - (No Citation)

    Vasquez v. Wal-Mart
    20 I.W.C.C. 0290
    18 WC 05413

    Cowger v. CPC Logistics, Inc.
    20 I.W.C.C. 0289
    19 WC 09703

    Download a copy.

  • 08/05/2020 8:49 AM | Judy Pfeiffer (Administrator)

    I.          Slips & Falls / Parking Lots / Arising Out Of & In The Course Of- Reiman v. St. Joseph                                Memorial Hospital., 28 ILWCLB 68 (Ill. W.C. Comm. 2019).

                Petitioner, a 77-year-old women, fell on the sidewalk while walking to her car that was parked in the employer’s parking lot. Although Petitioner offered no testimony as to what exactly caused her fall, she testified that she did notice some ice on the sidewalk and parking lot when she fell. Petitioner also testified that it was sleeting at the time of the accident. Therefore, Petitioner assumed she slipped and fell on ice. Petitioner testified she was required to park in the area in which she fell.

                Respondent presented no less than six witnesses and two certified weather reports to counter Petitioner’s allegation that there was ice on the sidewalk and the parking lot. Nearly all of the witnesses, except one, testified there was no ice on either the sidewalk or parking lot at the time in question. Moreover, both of the certified weather reports introduced by Respondent showed there was no rain, snow, sleet, or any other type of precipitation on the date of the accident.   However, there was evidence of salt present in the area of the fall. Respondent’s witnesses testified the employer did not direct or require its employees to park in a designated parking area.

                The Arbitrator found Petitioner’s statement that she was required to park in the area where she fell not credible. The Arbitrator also noted the Petitioner’s statement that it was sleeting at the time of the accident was contradicted by the two certified weather reports. Nevertheless, the Arbitrator still found Petitioner’s accident was due to ice. The Arbitrator based this finding on Petitioner’s statement to her treatment providers that she fell on ice, and also on the fact that there was some salt on the ground at the time of Petitioner’s fall. Although the Arbitrator noted there was conflicting evidence as to whether there was ice on the sidewalk based on the presence of salt, which is designed to eliminate ice, the Arbitrator reasoned there must have still been ice since the presence of the salt did not “completely leave out the possibility of ice.”

                After determining Petitioner fell on ice, the Arbitrator found her claim to have both arisen out of and occurred in the course of her employment based primarily on the finding in Dukich v. Ill. Workers’ Comp. Comm’n, 86 N.E.3d 1161 (injuries arising out of the natural accumulations of ice and snow to be compensable, but slips and falls due to rain are not to be compensable.) Although the Arbitrator classified her risk as a neutral risk, no analysis was provided to show how this neutral risk became compensable risk based on either a qualitative or quantitative theory basis. On appeal, the Commission affirmed and adopted the Arbitrator’s decision in full without further comment.

    II.        Slips & Falls / Parking Lots / Arising Out Of & In The Course Of - Hamby v. United                         Contractors., 28 ILWCLB 67 (Ill. W.C. Comm. 2020).

                Petitioner, who ran a water truck for a paving crew, walked to his truck when he stepped on a large rock, causing him to roll his ankle and fall on his right shoulder. Petitioner’s truck was parked in the entrance area of a gravel pit owned by the Respondent.

                The Arbitrator found that Petitioner’s accident arose out of and in the course of his employment with Respondent. The Arbitrator used a neutral risk analysis to arrive at this conclusion.

                On appeal, the Commission affirmed the Arbitrator’s decision but noted that the Arbitrator’s neutral risk analysis was unnecessary since the risk in question, exposure to a “large” three inch in diameter rock, which was within a sea of similar rocks in a gravel pit, constituted a defect on Respondent’s premises such that it made the risk of injury a risk distinctly associated with the Petitioner’s employment rather than a neutral risk. The Commission did not explain why a three inch rock located in a gravel pit full of similar sized rocks constituted a “defect”, while a two or two and a half inch rock did not constitute a “defect”.

    III.       Slips & Falls / Parking Lots / Arising Out Of & In The Course Of - Graves v. The State of      Illinois, 28 ILWCLB 78 (Ill. W.C. Comm. 2020)

                Petitioner, a Circuit Court Judge, walked from her assigned parking spot to the Circuit Court building when she tripped and fell in an empty parking lot. The parking lot in question was limited to employees only and not accessible to the general public. Petitioner carried a backpack full of work materials as she walked to work. Lastly, Petitioner had to traverse several different uneven surfaces, including uneven gravel, in order to get from the assigned parking spot to the Circuit Court building. Petitioner testified she took was the most direct route, and the other potential routes from her assigned parking spot to her work were even more hazardous.

                The Arbitrator awarded Petitioner benefits after finding that Petitioner’s accident arose out of and in the course of her employment based on an increased neutral risk theory. The Arbitrator emphasized that the parking lot was for employees only, that Petitioner was instructed to park in said lot, that she carried a heavy backpack full of work materials, and that the path between the parking lot and the Circuit Court building required traversing over several uneven surfaces as support for the finding of an increased risk of injury. On appeal, the Commission affirmed the Arbitrator’s decision in its entirety.

    Read more about:

    IV.       Bending Over / Neutral Risk v. Employment Risk - Gomez v. City of Northlake, 28 ILWCLB 69 (Ill. W.C. Comm. 2019).

    V.        Reaching / Neutral Risk vs. Employment Risk - Estill v. Ball-Chatham CUSD #5, 28                           ILWCLB 79 (Ill. W.C. Comm. 2019)

    VI.       Aggravation of Preexisting Condition- Stuber v. Murray Developmental Center, 28 ILWCLB 71 (Ill. W.C. Comm. 2020).

    VII.     Employer/Employee Relationship - Lingenfelter v. Cloverleaf Golf Course, Inc., 28 ILWCLB 72 (Ill. W.C. Comm. 2019).

    VIII.    Overtime / AWW Calculations / Permanency - Pate v. Warren G. Murray Developmental Center, 28 ILWCLB 73 (Ill. W.C. Comm. 2019). 

    IX.       TTD / TPD / Voluntary Abandonment of Accommodated Light Duty Work - Adams v. Hayes Mechanical Contractors, 28 ILWCLB 74 (Ill. W.C. Comm. 2019).

    X.        Appeal to the Commission / Filing of Transcripts / Vocational Testimony- Rosario v.            City of Chicago., 28 ILWCLB 76 (Ill. W.C. Comm. 2019).

    XI.       Interlocutory Appeals - Montgomery v. Illinois Workers’ Compensation Com’n., 28 ILWCLB 77 (Ill. App. Ct., 3rd 2020).

    XII.     Repetitive Trauma / Repetitive Use - Bartlett v. State of Illinois Dep. of Transportation, 28 ILWCLB 81 (Ill W.C. Comm. 2019)

    XIII.    Use of Drugs / Intoxication - Deaton v. Southeast Personnel Leasing Inc., 28 ILWCLB 82 (Ill.  W.C. Comm. 2020).

    XIV.    Permanency Value / PPD Benefits - Queiro v. JBS USA, 28 ILWCLB 83 (Ill. W.C. Comm.          2020).

    XV.      Prospective Medical - O’Connor v. Trimark Marlinn, 28 ILWCLB 84 (Ill. W.C. Comm. 2019)

    XVI.    Penalties / Unreasonable & Vexatious Conduct - Weatherspoon v. Metropolitan    Water Reclamation District, 28 ILWCLB 86 (Ill. W.C. Comm. 2019).

    XVII.   Jurisdiction - Tyler v. Aureus Medical Group, 28 ILWCLB 87 (Ill. W.C. Comm. 2019).

    XVIII. Vocational Services / Rule 9110.10 - Broner v. Saks Fifth Avenue, 28 ILWCLB 85 (Ill. W.C.      Comm. 2020).

    Download the complete June 2020 Case Law Summaries.

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