WCLA Case Law 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.

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  • 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.

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  • 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.

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

    I.          Status of Employment

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

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

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

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

    II.        Arising Out of Employment

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

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

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

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

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

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

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

    III.       Accidental Injury

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

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

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

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

    IV.       Causal Relationship

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

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

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

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

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

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

    V.        Permanent Disability Benefits

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

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

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

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

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

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

    VI.       Medical & Rehabilitation Benefits

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

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

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

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

    VII.     Evidence

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

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

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

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

    VIII.    Insurance Practice & Procedures

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

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

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

     What was opinion of IME doctor?

    --IME doctor opinion is never mentioned. 

     RIGHT LEG

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

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

    Specific services were not outlined in opinion.

    Download pdf copy

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

    I.                   Status of Employment

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

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

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

    II.                Accidental Injury

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

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

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

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

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

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

    III.             Arising Out of Employment

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

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

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

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

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

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

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

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

    IV.             Course of Employment

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

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

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

    V.                Calculation of Preinjury Wages

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

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

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

    VI.             Permanent Disability Benefits

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

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

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

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

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

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

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

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

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

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

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

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

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

    VII.          Medical & Rehabilitation Benefits

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

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

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

    VIII.       Authority of Commission

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

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

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

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

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

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

    IX.             Benefit Payment Procedures

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

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

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

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

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

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

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

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

    X.                Claim Filing Procedures

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

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

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

    XI.             State Court Authority & Procedures

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

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

    XII.          Insurance Practices & Procedures

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

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

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

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

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

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

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

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

     

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

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

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

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

    The Commission affirmed and adopted the decision of the Arbitrator.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    II.                OCCUPATIONAL DISEASE

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

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


    III.             CAUSAL RELATIONSHIP

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


    IV.             AVERAGE WEEKLY WAGE

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


    V.                COMPUTATION OF AWARDS

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

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


    VI.             PERMANENCY BENEFITS

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

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

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

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


    VII.          MEDICAL AND REHABILITATION BENEFITS

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

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


    VIII.       CLAIM FILING PROCEDURES

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

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

    I.   ARISING OUT OF EMPLOYMENT 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Arising Out of Employment:

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

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

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

    Increased Risk:

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

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

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

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

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

    Course of Employment:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Accidental Injury:

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

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

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

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

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

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

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

    Status of Employment:  

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

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

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


    Arising Out of Employment: 

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

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

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

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

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

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

    Read the full report.

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