WCLA Case Law Summaries


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  • 08/30/2021 3:43 PM | Judy Pfeiffer (Administrator)
    VIII.                 PERMANENT DISABILITY BENEFITS

    Delgado v. PNR Painting Plus Inc. 17 WC 23580, 21 WC 0161 (IWCC April 7, 2021)

    Petitioner worked as a house painter for approximately 15 years and was earning $20.00 per hour on the date of injury. On July 15, 2017, he fell from a ladder injuring his head and right ankle. Petitioner was 30 years old at the time of the injury. After pursuing medical treatment, petitioner was released to work with restrictions of no carrying greater than 10 pounds, no standing more than 5 minutes, no excessive climbing and the ability to lift or elevate his leg. Due to the permanent restrictions, petitioner was unable to return to work as a painter. He located employment working for another company in a sedentary position earning $15.00 per hour. Petitioner testified to ongoing pain and difficulty driving. The issue at hearing was the nature and extent of petitioner’s injury.

    The Arbitrator considered the five factors outlined in Section 8.1(b) of the Illinois Workers’ Compensation Act in assessing permanency (i) the reported level of impairment pursuant to physician’s findings per the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records. The Arbitrator noted the parties did not present evidence of an AMA impairment rating and assigned no weight to the first factor. The Arbitrator assigned great weight to the second factor since petitioner worked as a professional house painter for 15 years and was unable to return to this profession. The Arbitrator assigned great weight to the third factor, since petitioner was only 30 years old at the time of the injury and had many years left in the work force and the injury limited his abilities in certain physical labor fields. In assessing factor four, the Arbitrator assigned great weight since petitioner earned $5.00 less per hour in his current job.  Finally, the Arbitrator assigned great weight to the fifth factor since petitioner testified to ongoing pain and difficulty driving. The medical records also documented residual pain, stiffness and deficits with the likelihood he would develop subtalar arthrosis and require injections in the future.  After considering all five factors, the Arbitrator awarded 25% loss of use of the person as a whole. The Commission affirmed the award.

    Blacker v. Fox Developmental Center, 15 WC 38891, 21 WC 0045 (IWCC February 1, 2021)

    Petitioner worked as a support service worker and her job duties primarily included housekeeping. She had concurrent employment as a school bus driver. Petitioner alleged an injury to her right foot while attempting to move a housekeeping cart and was eventually diagnosed with a complex regional pain syndrome. There was no dispute regarding her diagnosis or treatment. She eventually underwent a functional capacity evaluation, which found she could function at the medium physical demand level. Although there was some disagreement as to whether she required permanent sedentary or light to medium restrictions, all agreed she was unable to return to work full duty.  The parties disagreed as to whether petitioner could continue driving a school bus and the primary issue at trial was the nature and extent of her injury.

    In assessing permanency, the Arbitrator considered the five factors enumerated in Section 820 ILCS 305/8.1b(b) of the Illinois Workers’ Compensation Act as follows: (i) the reported level of impairment pursuant to physician’s findings per the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records.  At trial, neither party submitted an AMA impairment rating and the Arbitrator gave no weight to the first factor. The Arbitrator considered assigned great weight to the second factor and reasoned petitioner was unable to continue working as a support service worker and also agreed with petitioner’s witnesses that she also lost access to her employment as a bus driver. The Arbitrator assigned some weight to the third factor, noting petitioner was 52 years old when the accident occurred and was well under retirement age and must live with the residual symptoms and lost many years of work in her chosen fields. The Arbitrator gave some weight to the fourth factor since the labor market survey submitted at trial suggested she had a diminished earning capacity. Finally, the Arbitrator gave significant weight to the fifth factor since the medical records corroborate petitioner’s testimony of continued symptoms that affect her daily activities and given her reduced physical demand level noted on the functional capacity evaluation.  After considering all five factors, the Arbitrator awarded 47.5% loss of the person as a whole pursuant to Section 8(d)2 of the Act. The Commission affirmed the Arbitrator’s decision.

    Garay v. Lowes Chicago O’Hare, 15 WC 10352, 21 WC 0105 (IWCC March 5, 2021)

    Petitioner worked as a houseman at a hotel and alleged a twisting injury to his left knee. He was eventually diagnosed with an aggravation of significant degenerative osteoarthritis and underwent a knee replacement. Per the opinion of its Section 12 examiner, respondent disputed that the need for surgery was causally related to the work injury. Petitioner testified to some residual knee pain and that he continued working for respondent, although his co-workers assisted him and permitted him to perform lighter duty tasks when needed. 

    The Arbitrator found petitioner’s condition causally related to the work injury and in assessing permanency, considered the five factors enumerated in Section 820 ILCS 305/8.1b(b) of the Illinois Workers’ Compensation Act as follows: (i) the reported level of impairment pursuant to physician’s findings per the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records.  Neither party submitted an AMA rating into evidence and the Arbitrator assigned no weight to the first factor. The Arbitrator assigned moderate weight to the second factor since petitioner’s job required lifting and setting up banquet tables. However, petitioner returned to full duty work after his surgery, although he required assistance on occasion. The Arbitrator gave moderate weight to the third factor since petitioner was 62 at the time of the injury and it was more difficult for him to recover from the injury, although he also had less time left in the work force. The Arbitrator gave less weight to the fifth factor since petitioner returned to his pre-injury employment and there was no evidence of a reduced earning capacity, although the Arbitrator acknowledged it would be more difficult for him to seek employment in the general work force. Finally, the Arbitrator considered the fifth factor and assigned significant weight since petitioner had residual symptoms with activity noted in the medical records.  After considering all five factors, the Arbitrator awarded 47.5% loss of use of the left leg per Section 8(e)12 of the Act.

    IX.              AUTHORIZATION & PAYMENT OF MEDICAL PERSONNEL

    Davis v. Tyson Foods, 18 WC 18489, 21 WC 0154 (IWCC April 5, 2021)

    Petitioner alleged injuries to his low back and right ankle on May 25, 2018 after he slipped and fell on a banana in the employee breakroom. Following the incident, respondent directed petitioner to an occupational medical clinic.  He then pursued treatment on his own with a chiropractor. While under the care of the chiropractor, petitioner presented to the emergency room on two occasions due to severe lower back pain. Thereafter petitioner pursued treatment with an orthopedic surgeon who eventually referred petitioner to pain management. Respondent accepted liability for the work injury, although it disputed liability on the basis of causal connection pursuant to a Section 12 opinion finding that petitioner did not require any further treatment and was not a surgical candidate. It further disputed liability for some of petitioner’s medical expenses as it maintained he exceeded his two chains of medical providers.

    The Arbitrator found petitioner’s condition causally related to the work injury. The Arbitrator further held petitioner did not exceed his two choices of medical providers and reasoned respondent directed petitioner to the occupational health clinic and it was not a provider chosen by petitioner.  The Arbitrator further found the emergency room visits did not constitute a choice of provider since Section 8(a) of the Act excludes emergency treatment provider choice. The Arbitrator differentiated the case from Wolfe v. Indust. Comm’n, 416 N.E. 2d (1985), which found an emergency room visit constituted a choice of medical provider. The Arbitrator reasoned that in Wolfe petitioner had seen his treating doctor the same day he went to the emergency room and made no attempt to contact his doctor prior to going to the emergency room. In the present case, petitioner’s emergency room visits were due to severe low back and right leg pain.  The Commission affirmed the decision.

    X.      RETALIATION

    Siwak v. Xylem Inc., 20 ILWCLB 108 (N.D. Ill. 2021)

    Plaintiff filed a charge against his former employer alleging retaliatory discharge in 2019 after he filed and settled a workers’ compensation claim in 2017. The employer pursued summary judgement given the time between his 2017settlement and the 2019 termination.  Plaintiff argued summary judgement was improper since the termination letter stated the plaintiff reached a settlement for his workers’ compensation clam and therefore his employment was to be terminated based on the settlement agreement.

    The District Court granted the summary judgement motion reasoning for purposes of a retaliatory discharge claim, the causality requirement needs more than sequential connection and the ultimate issue is the employer’s motive in termination. The Court reasoned plaintiff’s termination letter did not prove the employer had a motive to punish or retaliate against him for the workers’ compensation claim. Rather, the letter showed the employer believed his separation was a component of the settlement agreement.  Since the employer reasonably believed plaintiff had resigned as part of his settlement agreement, it defeated the causation element to the retaliatory discharge claim.

    XI.        EMPLOYEE’S TORT ACTION AGAINST EMPLOYER

    Vrchota v. DD&G Development & Restorations, 13 WC 34611, 21 WC 0169 (IWCC April 13, 2021)

    Petitioner alleged lacerations arising out of his employment on October 9, 2013. Respondent disputed petitioner was an employee and contended he was an independent contractor. It further disputed accident regardless of the employment relationship. Petitioner pursued a civil liability claim against respondent arising from the same incident in which the employer maintained petitioner was an independent contractor, which was against its interests in that case. Following the hearing, the Arbitrator found petitioner was an independent contract and denied benefits under the Act.

    Petitioner timely appealed the decision to the Commission. While pending on review, respondent filed a Motion to Dismiss the appeal arguing petitioner executed a settlement and release of his civil claim against respondent for the injury at issue and a dismissal order stated “said cause having been settled by agreement of the parties.” Respondent argued the dismissal order was a public record and subject to judicial notice and petitioner was precluded from continuing his workers’ compensation claim pursuant to Sections 5(a) and 11 of the Illinois Workers’ Compensation Act.

    The Commission found the dismissal order was subject to judicial notice since Illinois Courts “recognize documents containing readily verifiable facts from sources of indisputable accuracy may be judicially noticed if doing so will aid in the efficient disposition of a case.” While the Commission could not take judicial notice of the settlement document, the order documenting a settlement by agreement of the parties was subject to judicial notice. The Commission found petitioner was disqualified from obtaining an award since he received payment from the employer. The Commission cited to the holding in Rhodes v. Indust. Comm’n, 92 Ill.2d 467 (1982), wherein the Supreme Court held if an employee receives payment from his employer as a result of a common law action, he is disqualified from obtaining an award under the Workers’ Compensation Act. To hold otherwise would frustrate the legislative intention underlying Section 5 of the Act.

    Torrijos v. International Paper Co., 2021 IL App (2d) 191150

    Plaintiff worked as a temporary employee for a staffing agency and was eventually placed at a packaging company. Plaintiff injured her arm while working for the company and filed a claim and received workers’ compensation benefits. Plaintiff subsequently pursued a negligence claim against the packaging company. The packaging company argued it was a borrowing employer under Section 1(a)(4) of the Illinois Workers’ Compensation Act and the exclusivity remedy provision barred the claim. However, there was a dispute as to whether the packaging company was a borrowing employer. The trial court granted the packaging company’s summary judgement motion.

    The Appellate Court affirmed and reasoned the packaging company was a borrowing employer and the exclusive remedy provision extends to borrowing and loaning employers. The Court found the packaging company had direction and control and the plaintiff worked the same shift as the packaging company employees, used the company’s equipment and was supervised by the packaging company. The packaging company had control over her work hours and the right to terminate. The Court also found it significant the plaintiff interviewed with the packaging company and completed an application. As such, the plaintiff impliedly consented to the borrowed employee relationship.

          XII.       EMPLOYEE’S TORT ACTION AGAINST THIRD PARTY

    Simmons v. Citation Oil and Gas Corp., 29 ILWCLB 110 (S.D. Ill. 2021)

    Citation owned an oil field and hired an independent contractor to extract oil from an elevated pumpjack. There was an explosion in a trailer owned by the contractor that killed one of the contractor’s employees. The estate filed a third-party cause of action against Citation, the owner and operator of the oil field.  Pursuant to its service contract, Citation subsequently filed a third-party complaint for contribution and indemnity against the independent contractor pursuant to the Illinois Joint Tortfeasor Contribution Act. There was a provision in the contract that the contractor would indemnify “any and all losses…in any amount”. The independent contractor argued its damages would be capped at its total workers’ compensation liability and that the Illinois Construction Contract Indemnification for Negligence Act made the indemnification provision of its contract void as a matter of public policy and moved for dismissal.

    The Court denied the motion to dismiss reasoning that while the employer’s contribution to a third party is generally limited to its workers’ compensation liability as discussed in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d (1991), this can be waived by contract. The Court found the language in the indemnification provision constituted a waiver of the damages cap.  The Court also found the indemnity provision valid and enforceable since it was limited to the contractor’s pro rata share of damages. 

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


  • 08/30/2021 3:36 PM | Judy Pfeiffer (Administrator)
    I.                   STATUS OF EMPLOYMENT

    Lusk v. Unckrich Corp. d/b/a Cardinal Pump Co., 2021 Ill. App. (5th) 200368.

    Plaintiff filed a complaint against his former employer in Illinois alleging retaliatory discharge for filing a workers’ compensation claim. Defendant filed a Motion to Dismiss asserting Illinois did not have general or specific personal jurisdiction because defendant was incorporated, maintained a principal place of business and did all hiring and firing out of Missouri and did not own or operate any businesses in Illinois. Plaintiff argued there was personal jurisdiction since plaintiff was in Illinois when defendant terminated him over the phone and since plaintiff performed most of his work in and filed his workers’ compensation claim in Illinois. There was also a dispute over the date of termination since defendant argued it was July 19, 2019 while at the Missouri home office and plaintiff contended it was during a phone call on July 23, 2019 while in Illinois. However, the evidence suggests plaintiff asked that his employment continue until he completed a job on July 23, 2019, after which the defendant terminated his employment.

    The trial court denied the Motion to Dismiss and the Appellate Court affirmed finding July 23, 2019 the proper termination date and the plaintiff was in Illinois when the termination occurred. Defendant argued exercising jurisdiction violated the federal due process clause. The Court noted, the federal due process clause permits personal jurisdiction over a nonresident if the defendant has “certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Whether the case meets the minimum contacts test depends on whether they are seeking general or specific personal jurisdiction.  Plaintiff contended there was specific jurisdiction pursuant to 2-209(a) of the Illinois Code of Civil Procedure, since the defendant committed a tort in Illinois when it terminated plaintiff over the phone on July 23, 2019 while he was in Illinois. Plaintiff further asserted there was general jurisdiction since defendant had continuous and systematic business operations in Illinois to render it “at home” in the state. The Appellate Court found plaintiff was terminated on July 23, 2019 and there was specific personal jurisdiction since plaintiff was in Illinois when the tort occurred. After finding sufficient minimum contacts, the Court then considered the reasonableness of litigation in Illinois. It found the litigation reasonable, noting defendant’s home office was located only 35 miles from the courthouse and defendant serviced clients in Illinois.  Additionally, Illinois had an interest in resolving a tort that occurred within its borders and to advance substantive social policy of compensating victims for torts occurring in Illinois. Further, since the injury occurred in Illinois and plaintiff resided in Illinois, it was reasonable to exercise personal jurisdiction over the defendant in Illinois.

    II.                ARISING OUT OF EMPLOYMENT

    Moreno v. Not Just Grass Inc., 14 WC 32681, 21 WC 0147 (IWCC March 31, 2021)

    Petitioner worked as a laborer and his job duties primarily included mowing lawns, trimming trees, lifting rock and stone, and occasionally moving trees and machinery.  He alleged injuries to his back on September 5, 2014 while bending over to pick up a gas can. Petitioner acknowledged he had not yet lifted the gas can when he felt a pop and sharp pain in his lower back and left leg. Petitioner pursued medical care and was diagnosed with a disc herniation.

    The Arbitrator applied a neutral risk analysis and found petitioner failed to prove his accident arose out of his employment since he was not exposed to a greater risk of injury.  The Arbitrator reasoned the act of bending was a movement consistent with normal daily activity. The Commission affirmed the Arbitrator’s decision and applied a neutral risk analysis, opining petitioner was not exposed to either a qualitative or quantitative increased risk.

    Petitioner appealed to the Circuit Court, which confirmed the decision of the Commission.  However, the Appellate Court reversed and remanded the case back to the Commission to consider the recent holding in McAlister v. IWCC, 126 N.E.3d 522 (2019).

    After considering the holding in McAlister, the Commission reversed the Arbitrator’s decision, finding that when analyzing an injury involving a common bodily movement, they must first consider whether the injury arose out of an employment related risk. The Commission further explained a risk is distinctly associated with employment if at the time of the injury, the petitioner is performing: (1) acts the employer instructed him to perform; (2) acts he had a common-law or statutory duty to perform; or (3) acts that he might reasonably be expected to perform incidental to his assigned duties. It was also unnecessary to consider whether petitioner was exposed to a risk of injury to a greater degree than the general public. The Commission found the act of bending to pick up a gas can  was incidental to his job duties as a laborer in the landscaping business.

    Jimenez v. Chicago Marriott Oak Brook, 18 WC 13761, 21 WC 0168 (April 7, 2021)

    Petitioner worked as a banquet server and on April 12, 2018, her supervisor instructed her to retrieve lids for coffee cups from a coffee shop in the hotel. Petitioner retrieved the lids, although they were the wrong size and she needed to go back to the coffee shop. Petitioner testified she was walking quickly back to the coffee shop due to customer complaints when she tripped and felt a pop in her left knee. She further testified there were no defects in the area she fell. Petitioner was diagnosed with a meniscus tear. Respondent acknowledged petitioner was in the course of her employment, although it denied the accident arose out of her employment.

    The Arbitrator found petitioner sustained an accidental injury that arose out of and in the course of her employment. The Commission affirmed and outlined the test in analyzing injuries that arise from everyday activities or due to common bodily movements. The Commission held these cases arise out of the employment if the employee was engaged in an act she might reasonably be expected to perform incidental to her employment or causally connected to fulfillment her job duties. In this case, petitioner was directed to retrieve the lids and was performing a job duty incidental to her work as a banquet server.  The fact it was an everyday activity was irrelevant to the analysis since she was performing an act incidental to her job duties and directed to perform by her supervisor.

    Leake v. Envoy Air, 16 WC 14444, 21 WC 0021 (January 13, 2021)

    Petitioner worked as a flight attendant, which required overnight travel. She alleged injuries to her body on June 11, 2015 after she was bitten by bed bugs while traveling for work in Iowa in an employer selected hotel. Petitioner reported many small bites, treated with medication, and testified to ongoing itching and scratching as of the trial.

    The Arbitrator found petitioner sustained an accidental injury that arose out of and in the course of her employment.  It reasoned petitioner was a traveling employee while on layover and an injury that occurred during her layover in a hotel occurred in the course of her employment. It also arose out of her employment since the exposure to bed bugs was reasonable and foreseeable, particularly considering the employer selected and paid for the hotel and since she was at higher risk of being bitten by bed bugs due to her frequent travel.  However, the Arbitrator declined to issue a permanency award. The Commission affirmed the decision and reasoned the petitioner’s condition resolved prior to hearing.

    Purdy Brothers Trucking LLC v. IWCC (Maddy)¸ 2021 IL App (3d) 200463WC-U

    Petitioner worked as a spotter for a trucking company and his job duties included moving trailers to designated areas at a customer’s plant depending on which dock the customer’s employees were working. On June 6, 2018, petitioner retrieved a trailer containing barrels used to ship products. A customer employee requested help moving the barrels from the trailer to a skid loader when petitioner fell and injured his knee and wrist. Petitioner testified he previously saw other spotters helping unload trailers and the respondent did not provide any training, job videos or manuals with directions on the requirements of a spotter. Respondent presented testimony from a terminal manager at trial that spotters were not permitted to load or unload trailers unless a customer pays for this service. The manager admitted he was unaware of any written documentation that covered the job responsibilities of a spotter.

    The Arbitrator found petitioner sustained an accidental injury that arose out of and in the course of his employment, which was affirmed by the Commission and Circuit Court.

    The respondent appealed to the Appellate court which found the Commission’s Decision that petitioner was exposed to an employment related risk since he was performing an act reasonably believed to be part of his job for the benefit of the employer, pursuant to the holding in McAllister v. IWCC, 126 N.E.3d 522 (2019) was not against the manifest weight of the evidence.  The Court reasoned defendant did not provide a manual or job video documenting the responsibilities of a spotter and the terminal manager was uncertain if the employer covered this during orientation. It further found respondent provided little guidance or supervision. Petitioner also testified to witnessing other spotters loading and unloading trailers. The Court was not persuaded by arguments petitioner engaged in a volunteer activity or deviated from his employment since the spotters routinely engaged in loading and unloading.

    Ahnert v. Pon North America Inc., 19 WC 06312, 21 WC 0098 (IWCC March 4, 2021)

    Petitioner worked as a mechanic beginning in 2000, which required him to repair industrial equipment and work on rail car movers. His job duties required squatting, kneeling, bending, heavy lifting and working in confined spaces in awkward angles. Approximately 16 years after he began working for respondent, petitioner developed neck pain and hand cramping consistent with nerve root compression at C5-6 that eventually required a cervical fusion. Petitioner’s treating doctor answered a hypothetical during his deposition and opined petitioner’s work activity contributed to the degeneration of the cervical disc. Respondent presented testimony that petitioner’s job required lifting 10-20 pounds, with occasional lifting of 50 pounds or more. Respondent also presented 19 work orders involving jobs performed by petitioner and argued only two or three of the jobs required heavy lifting or work in confined spaces at awkward angles. Respondent did not produce work orders prior to 2017.

    The Arbitrator found petitioner sustained an accidental injury that arose out of and in the course of his employment and reasoned petitioner’s condition was causally related to his job duties as a heavy equipment mechanic. The Arbitrator noted petitioner’s job duties were arduous and physically taxing and while the work orders demonstrated tasks that were not heavy or required working at awkward angles, the work orders did not rule out other jobs with heavy lifting or at awkward angles. There was also no evidence of a non-work-related injury to the cervical spine. Respondent also failed to offer any expert opinions and petitioner’s treating doctor opined the work activity was a contributing factor to his condition that necessitated surgery. The Commission affirmed the Arbitrator’s decision.

    III.              OCCUPATIONAL DISEASE

    Basil v. Patton Mining, 16 WC 16172, 21 WC 0155 (April 5, 2021)

    Petitioner worked in the coal mine industry for 33 years in positions that required underground work and exposed him to coal dust, silica dust, and roof bolting glue fumes.  He last worked on March 25, 2015, when the mine was shut down due to a fire. Petitioner operated his own tree trimming service after leaving the employ of respondent. Petitioner testified to breathing problems beginning in the early 1990s and noted issues with his stamina and difficulty walking distances. Petitioner’s examining doctor noted intermittent coughing and wheezing, associated with bronchospasm and chronic bronchitis, which was a manifestation of the bronchospasm. The doctor opined his x-rays also showed mild interstitial changes consistent with coal worker’s pneumoconiosis (CWP).  Petitioner’s doctor opined he had CWP due to long-term exposure to coal dust.  Petitioner also presented the opinion of a B-Reader, who performed an epidemiological evaluation of chest x-ray.  He opined petitioner’s x-rays were essentially normal, although he could still have CWP with a normal x-ray. At trial, petitioner testified he did not take any medication due to breathing issues. Respondent’s experts found petitioner did not have CWP or COPD and there was no evidence of lung pathology in the medical records or evidence of respiratory impairment due to coal dust exposure.

    At trial, the Arbitrator awarded benefits.  The Commission reversed and noted that although Section 1(d) of the Occupational Diseases Act creates a rebuttable presumption that a CWP diagnosis arises out of employment if the claimant worked for 10 or more years in coal mines, petitioner must still prove he has CWP.  The Commission reviewed the evidence and found petitioner failed to prove he had CWP. It found Respondent’s experts more persuasive, particularly opinions that with CWP, petitioner should have opacities in the upper lung zones, which were not present.  It further reasoned petitioner discontinued working in the mine due to the unforeseen closure and not due to respiratory issues. The medical records also did not support ongoing chronic respiratory ailments or complaints due to CWP after leaving the mine and his pulmonary function test was normal. The Commission believed petitioner’s current symptoms, which petitioner testified worsened after he stopped working for respondent, could be consistent with fatigue and an underlying esophageal condition. As such, the Commission found he did not meet his burden of proof that he had CWP and denied benefits.

    Demierre v, Elgin Police Dept., 15 WC 21341, 21 WC 0159 (IWCC April 7, 2021); 12 WC 25446, 21 WC 0158 (IWCC April 7, 2021)

    Petitioner worked as a police officer. On December 17, 2011, petitioner was exposed to a significant amount of blood and saliva while apprehending a suspect.  Petitioner admitted he did not have any open cuts or sores and he was uncertain whether the suspect had HIV or hepatitis. Petitioner underwent two negative blood tests within the month after the incident. Thereafter, on August 12, 2012, petitioner was exposed to the saliva of an infant.  The postmortem autopsy of the infant was positive for HIV and hepatitis, although there was no evidence petitioner was exposed to the infant’s blood or that petitioner had any open wounds or bites when he encountered the infant. Petitioner underwent further testing in the months following this incident, which were all negative.  At trial, petitioner expressed concern he may later develop HIV or hepatitis. Petitioner also claimed psychological trauma under a mental-mental theory due to the exposure. However, petitioner had not sought any mental health treatment.

    The Arbitrator denied benefits finding petitioner did not meet his burden of proof since he failed to prove he had a condition of ill-being causally connected to the incidents at work. He did not present any evidence the suspect was diagnosed with HIV or hepatitis and his bloodwork was negative. The Arbitrator further denied petitioner’s mental-mental claim and found petitioner’s testimony unpersuasive and that it did not rise to the level of a mental disorder or an emotional shock by a reasonable person standard. In so finding, the Arbitrator noted the Supreme Court’s holding in Pathfinder Co. v. Indust. Comm’n¸343 N.E.2d 913 (1976) which held petitioner can recover for mental-mental claims if he or she “suffers a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm, though no physical trauma or injury was sustained.” The Arbitrator further considered the elements necessary to prove a mental-mental claim involving non-traumatically induced mental disease, which include (1) The mental disorder arose in a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience; (2) The conditions exist in reality, from an objective standpoint; (3) The employment conditions, when compared with the non-employment conditions, were the major contributory cause of the mental disorder. The Arbitrator reasoned the evidence only demonstrated petitioner’s concerns were temporary and did not rise to the level of a true psychological injury, in part due to his lack of medical treatment and testimony at trial that he could deal with his exposure. The Commission affirmed the Arbitrator’s decision.

    Balensiefen v. IWCC (Emerald Performance Materials), 2021 IL App (3d) 200316WC-U

    Petitioner worked for respondent, which operated a factory that produced chemicals. He alleged iron deficiency and anemia due to chronic and repetitive exposure to hazardous chemicals at work. Although the employees wore protective gear, he testified there was still exposure to the chemicals. Petitioner had a history of multiple personal medical conditions, including GERD, hypothyroidism, hypertension, DVT, hyperlipidemia and atrial fibrillation. Petitioner presented the opinion of an expert who opined the sudden onset of anemia in the absence of a known bleed and his chronic chemical exposure caused or contributed to his condition.

    Respondent presented the opinion of its Section 12 examiner that petitioner’s anemia could be attributed to insufficient iron in his diet and inability to absorb iron from his food. She opined certain medications inhibit iron absorption, including those taken by petitioner for his personal medical conditions. The expert opined petitioner’s alleged chemical exposure did not cause his condition because the chemicals he was exposed to have not proven to cause anemia or inhibit iron absorption, there was nothing unique about petitioner’s condition, he responded well to oral medication and there was no temporal relationship between his exposure and onset of symptoms. Respondent submitted documentation into evidence from environmental protection agencies.  This included a report from the National Institute of Occupational Safety Hazard (NIOSH) that showed all airborne exposure levels were well below occupational limits except for one chemical.

    The Arbitrator found petitioner failed to prove there was a causal connection between his condition and employment. The Commission and Circuit Court affirmed. The Appellate Court found the Commission’s decision was not against the manifest weight of the evidence. It reasoned the Commission weighed the conflicting medical opinions and found Respondent’s expert more persuasive. The expert also found the condition due to petitioner’s medications, diet and medical history. Further, petitioner’s doctor admitted he was unaware of the extent of petitioner’s chemical exposure and admitted iron deficiency anemia was a common medical condition.  The NIOSH report also found acceptable airborne exposure levels.

    IV.              CAUSAL RELATIONSHIP

    Davydov v. Superior Brokerage Services, 16 WC 23007, 21 WC 0153 (IWCC April 5, 2021)

    Petitioner worked as a truck driver for Respondent. He alleged injuries to his right shoulder on April 28, 2016 when he pulled a handle while decoupling his trailer with his right arm and reported immediate pain. Petitioner had a preexisting right shoulder condition and underwent an MRI in November 2015 that revealed a full thickness rotator cuff tear. He underwent conservative treatment and as of February 2016, he reported ongoing pain and received an injection. Petitioner testified at trial that his symptoms improved following the injection and he did not believe he required any treatment until the work accident. He underwent a repeat MRI after the April 28, 2016 incident, which per the treating doctor revealed a massive rotator cuff tear and probable labral tear that was significantly worse after the incident.  The doctor noted the tear was larger with more retraction. Respondent’s Section 12 examiner opined petitioner’s tear was degenerative and the retraction was consistent with the natural progression of a full thickness tear in a 69-year-old man and was inconsistent with an acute injury. Respondent argued the presence of an objectively symptomatic pre-existing tear and recommendation for a surgical consultation precluded recovery of benefits.

    The Arbitrator found petitioner sustained an accidental injury that arose out of and in the course of his employment, although the Arbitrator found petitioner failed to prove his condition of ill-being was causally related to the accident. The Arbitrator gave greater weight to the opinion of the Section 12 examiner over the treating doctor.

    The Commission reversed and found petitioner’s condition causally related to the work incident. It reasoned a comparison of the pre- and post-accident MRIs demonstrated a change in size and retraction of the tear. It also found the Section 12 examiner’s opinions unpersuasive.  The Commission applied a chain of events analysis and noted prior to the accident petitioner was able to perform his job duties and was not able to after the accident due to pain and other symptoms.

    Lesniak v. Village of Bedford Park, 18 WC 01357, 21 WC  0091 (IWCC March 4, 2021)

    Petitioner worked as a maintenance employee and alleged injuries to his right shoulder and upper back on December 6, 2017 when he was struck in the back by a ladder.  Petitioner reported the incident the following day and was diagnosed with a labral tear, shoulder instability and rotator cuff tendinitis. Respondent sent petitioner for a Section 12 examination on April 13, 2018. The doctor opined petitioner’s mechanism of injury was inconsistent with the questionable findings of a labral tear, shoulder instability and rotator cuff tendinitis. He did not recommend any further medical treatment. Nevertheless, petitioner proceeded with a shoulder surgery and testified to residual symptoms at trial.

    The Arbitrator found petitioner sustained an accidental injury that arose out of and in the course of his employment when a gust of wind knocked over a ladder and struck petitioner. However, the Arbitrator found petitioner’s condition of ill-being after April 13, 2018, the date of Respondent’s IME, was not causally related to the work incident. The Arbitrator found respondent’s expert’s opinions more persuasive that the currently pathology was not causally related to the accident and mechanism of injury since petitioner’s arm was not elevated when the ladder struck him.  The Arbitrator further reasoned there was no evidence of shoulder instability or increased laxity and he had full active range of motion.  The Arbitrator also found the surgery was not medically reasonable or necessary.  The Commission affirmed the decision.

    V.                EMPLOYEE IMPROPER CONDUCT

    Bell v. R.J. Transportation, 16 WC 019664, 21 WC 0167 (IWCC April 7, 2021)

    Petitioner worked in a warehouse and on June 20, 2016 petitioner was picking orders, which required him to maneuver pallets.  He began his shift at 7 a.m. and injured his lower back while pulling a pallet.  A blood alcohol test obtained shortly after the incident demonstrated a blood alcohol content of .045% and .041%. Petitioner admitted to consuming alcohol the prior evening, although he denied feeling intoxicated at work. Respondent presented testimony from a medical toxicologist that due to petitioner’s blood alcohol content, he was at an increased risk of being involved in an accident and thus impaired due to alcohol intoxication. He testified petitioner’s blood alcohol content was likely between .056% and .076% at the time of the injury, although most likely around .061%.

    The Arbitrator found petitioner’s accident arose out of and in the course of his employment and since his blood alcohol content was below .08%, there was no rebuttable presumption that the intoxication was the proximate cause of the injury. As such, it was respondent’s burden to prove intoxication was the proximate cause of the injury and respondent presented no such evidence. The Commission affirmed the Arbitrator’s decision.

    VI.              CALCULATION OF PREINJURY WAGES

    Tantillo v. PTO Services, Inc., 12 WC 34352, 21 WC 0165 (IWCC February 9, 2021)

    Petitioner worked as a commercial truck driver and alleged injuries to his shoulder on June 2, 2012.  He testified he received $17.90 per hour, worked approximately 48 hours per week and worked overtime in 21 of 27 weeks prior to the accident. There were many issues at trial, including whether there was an employer-employee relationship and calculation of the average weekly wage.

    The Arbitrator found there was an employer-employee relationship and that petitioner sustained an accidental injury that arose out of and in the course of his employment.  The Arbitrator also calculated petitioner’s average weekly wage to be $967.08, which included overtime and regular earnings.

    The Commission affirmed the Arbitrator’s Decision regarding accident and causation and modified the average weekly wage calculation. It reasoned there was no evidence petitioner’s overtime was mandatory, only that he worked 55 hours per week. Although the wage statements reflect overtime earnings in 21 of 27 weeks, the hours worked varied significantly.  The Commission considered the holding in Airborne Express, Inc. v. Illinois Workers’ Compensation Comm’n, 865 N.E.2d 979 (2007), which stated in part “Although the claimant consistently worked overtime he did not work a set number of overtime hours each week.”  The Commission applied this reasoning in excluding overtime from the average weekly wage calculation and concluded that although petitioner worked some overtime, the hours were inconsistent and there was no evidence the overtime was mandatory.

    VII.                    TEMPORARY TOTAL DISABILITY BENEFITS

    Torres v. Radiac Abrasives, 18 WC 004741, 21 WC 0151 (IWCC April 2, 2021)

    Petitioner worked as a machine operator and sustained injuries to his wrists in May 2014. After undergoing treatment, petitioner reached maximum medical improvement and was released to return to work with permanent restrictions on January 4, 2018. Respondent accommodated the restrictions, although petitioner testified respondent pressured him to meet the production levels of his co-workers. Petitioner further testified to continued symptoms of swelling and difficulty moving his hands. On January 12, 2018, petitioner injured his right arm at work while withdrawing a molding press. Respondent changed petitioner’s job on January 16, 2018 and he was eventually terminated on March 12, 2018 after a verbal altercation with a supervisor. Thereafter, petitioner pursued further treatment with a surgeon for the right upper extremity claim and was taken off work . Respondent obtained a Section 12 opinion and the examiner diagnosed rotator cuff tendinitis and epicondylitis causally related to the work injury and although he noted petitioner should avoid using the arm, opined a more definitive diagnosis was necessary. Respondent obtained a second Section 12 opinion with a different doctor and while the doctor found petitioner should undergo further treatment, he opined petitioner was capable of full duty work.

    The Arbitrator found petitioner’s right shoulder and elbow conditions were causally related to the January 12, 2018 work injury and awarded past and prospective medical treatment. As it relates to TTD benefits, the Arbitrator noted petitioner was not under any active medical treatment upon termination since he was at MMI for his May 2014 claim and had not yet pursued treatment with the surgeon for the January 12, 2018 incident. Additionally, the Arbitrator found it significant respondent’s Section 12 examiner opined petitioner was capable of performing regular work. In light of the above and the fact petitioner was working in the new position without complaint before his termination, the Arbitrator denied TTD benefits.

    The Commission modified the Arbitrator’s decision regarding TTD benefits. It found petitioner entitled to TTD benefits as of the date his treating physician took him off work for his right upper extremity injury on March 21, 2018 and not on the date of his termination. It further awarded TTD benefits through the date of hearing since his treating doctor continued him off work. There was a dissenting opinion that would have affirmed the Arbitrator’s denial of TTD benefits since petitioner proved he was capable of working in the light duty position after the January 12, 2018 incident before his termination. The Commissioner further voiced concern the majority’s decision could result in a situation where an employee is entitled to receive both TTD benefits and salary continuation.

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  • 07/27/2021 7:52 AM | Judy Pfeiffer (Administrator)

    VII. PERCENT LOSS OF USE

    Vantrecce v. Comprehensive Behavioral Health, 19 WC 22482, 21 WC 00122 (March 15, 2021).

                Petitioner worked for Respondent as a home health care provider.  Petitioner sustained injuries to her back and left leg when she was attacked by a patient. Petitioner was released from care by her treating physician and returned to work full duty. She continued to experience soreness in her low back and had symptoms in her legs as she was diagnosed with sciatica/radiculopathy.

    The Arbitrator found that Petitioner sustained permanent disability of 5% loss of use of the person as a whole under Section 8(d)2. The Arbitrator placed significant weight on evidence of disability based on the Petitioner’s medical records. Diagnostic records showed Petitioner had spondylolisthesis, disk bulges, and foraminal stenosis. The Arbitrator found no evidence the injury had any effect on the claimant’s future earning capacity because Petitioner was able to return to her same job she was working prior to the accident how this factor was only given little consideration. As such, the Arbitrator mainly considered the medical records in awarding PPD.

    The Commission affirmed the Arbitrator’s permanency award but disagreed with the Arbitrator’s decision to give no weight to Petitioner’s future earning capacity.  The Commission found that Petitioner endured soreness and occasional pain related to the accident after returning to work. The Commission assigned some weight to this factor but did not change the permanent disability award.

    Donato, Anthony v. HD Plumbing & Heating17 WC 29615, 21 IWCC 0046 (February 1, 2021).

    Petitioner worked as a plumber for Respondent.  He sustained a torn rotator cuff when he fell off a ladder, requiring surgery. The Arbitrator found that Petitioner had failed to establish that his accident arose out of his employment.  Therefore, the Arbitrator denied payment of benefits.

    Petitioner appealed and the Commission reversed the decision of the Arbitrator, finding Petitioner established by a preponderance of evidence that he had sustained a compensable accident by conducting an analysis of the five factors under Section 8.1(b) to determine the nature and extent of the disability.  The Commission assigned a moderate weight to the first factor, an AMA impairment rating, as Respondent submitted a report indicating a 4% impairment of the person as a whole. The Commission gave greater weight to the second factor, Petitioner’s occupation, as he was still employed as a plumber, but could no longer perform overhead drilling. The Commission assigned some weight to the third factor, as Petitioner’s age at the time of the accident was 61 years old. The Commission gave no weight to the fourth factor because there was no evidence that Petitioner’s injury had any impact on his future earning capacity. The Commission gave greater weight to the fifth factor, evidence of disability corroborated by the treatment medical records. The Commission determined that Petitioner sustained permanently partial disability to the extent of 15% loss of the use of the person as a whole.

    Cross, Bonita v. Champaign County Headstart, 18 WC 02618 and 18 WC 06791, 21 IWCC 0052 (February 3, 2021).

    Petitioner worked for Respondent as preschool teacher and sustained an injury to her arm and shoulder. She was diagnosed with a SLAP tear and subsequently underwent surgery. The Arbitrator found Petitioner was permanently and partially disabled to the extent of 10% loss of use of the person as a whole.

    On appeal, the Commission increased the Arbitrator’s permanency award to 15 % loss of the person as a whole. The Commission assigned some weight to Petitioner’s age, which was 54 years old at the time of the accident meaning that she had several working years in her future. The Commission gave little weight to Petitioner’s future earning capacity because she returned to the same type of work she held prior to the injury. The Commission assigned greater weight to Petitioner’s occupation as she now requires assistance in performing some tasks such as lifting children. Finally, the Commission gave greater weight to the last factor. Petitioner had consistent and ongoing treatment for her shoulder and arm, underwent surgery for a SLAP tear.  Petitioner had decreased strength in her arm, which would inhibit her from lifting children in the event of an emergency.

    VIII. PERMANENT TOTAL DISABILITY

    Parra v. Admiral Heating and Ventilating, 12 WC 43353, 13 WC 0609, 21 WC 00123 (March 15, 2021).

                Petitioner sustained an injury to his right elbow while working for Respondent.  Petitioner alleged that he was permanently and totally disabled. Petitioner never underwent a functional capacity evaluation. Respondent’s Section 12 expert opined Petitioner could perform sedentary to light-duty work. Both Petitioner’s and Respondent’s vocational counselors stated that Petitioner could benefit from a vocational rehabilitation plan.

    The Arbitrator awarded permanent total disability benefits. Respondent appealed the decision. The Commission vacated the decision of the Arbitrator and remanded the case to the Arbitrator to award vocational rehabilitation services for Petitioner. The Commission was not convinced Petitioner was unable to work because of the restrictions for his right elbow. The Commission noted that no doctor had concluded Petitioner was medically, permanently, and totally disabled. Additionally, he failed to prove that no jobs were available to him due to his age, training, education, experience, and condition.

    IX. CHOICE OF PHYSICIAN

    Bockhom v. Three Springs Lodge, 18 WC 09957, 21 WC 00121 (March 15, 2021).

                Petitioner sustained two injuries to her left elbow while working for Respondent on February 14, 2017, and February 22, 2017. Petitioner sought treatment with her first choice of physician.  The physician referred her to an orthopedist who specialized in elbow injuries. After treatment, the orthopedist concluded that Petitioner had achieved maximum medical improvement. The Petitioner sought a second opinion due to continuing complaints in her left elbow. That doctor became the Petitioner’s second choice of physician under Section8(a). The second doctor treated the left elbow injury but referred Petitioner to a shoulder specialist when she complained of right shoulder pain.  The issue in dispute was whether Petitioner had exceeded her choice of medical providers.

                The Arbitrator found that Petitioner’s medical treatment fell within the choice of physicians allocated to Petitioner pursuant to Section 8(a).  The Commission found that the second physician referred Petitioner to the shoulder specialist.  Therefore, the shoulder doctor fell within Petitioner’s choice of physicians allotted by Section 8(a) and their chain of referrals. The Commission affirmed the decision.

    X. UNREASONABLE & VEXATIOUS CONDUCT

    Daciolas v. Chicago, City of, 15 WC 11389, 15 WC 32525, 17 WC 15385, 17 WC 15386, 21 WC 00118 (March 11, 2021).

    Petitioner worked in the Department of Forestry and sustained injuries resulting from four separate work injuries.  He sustained injuries to his left index finger, left shoulder, neck, left thumb and right knee. Respondent’s Section 12 examiner agreed with the treating physician that the Petitioner sustained work-related injuries and was not at maximum medical improvement at the time of the examination.

    The Arbitrator noted in the award that Respondent had not provided medical evidence it relied on rely on in refusing to pay TD benefits and medical expenses. The Arbitrator noted that both of Respondent’s Section 12 examining doctors agreed Petitioner sustained work-related injuries and was not at maximum medical improvement. The Arbitrator awarded temporary total disability benefits and medical expenses.  Additionally, the Arbitrator ordered Respondent to pay $64,025 under Section 19(k), $10,000 under Section 19(l), and $25,610 for attorney’s fees under Section 16. The Commission modified the Arbitrator’s decision and reduced the Section 19(k) penalties to $47,465 and Section 16 attorney’s fees to $18,986.  The Commission based its award of penalties only on the medical bills. The Commission otherwise affirmed the Arbitrator’s decision.

    XI. DELAYS

    Diaz v. Harvey Police Dept., 17 WC 35923, 21 WC 00126 (March 16, 2021).

    Petitioner worked as a probationary police officer for Respondent.  She sustained injuries to her head, neck, and right knee while involved in a car accident. She was ultimately released to return to work full duty and did not undergo treatment after November 20, 2017. The Petitioner alleged that Respondent refused to pay her medical bills without good cause and requested penalties and attorney’s fees. Petitioner also alleged that she sent several requests for payment and Respondent did not reply.  Respondent asserted this was due to its lack of funds and provided an order from a federal case where they were ordered to deplete three bank accounts to satisfy a previous judgment.

    The Arbitrator awarded the Section 19(1) penalty of $10,000 because Respondent did not provide just cause for its failure to pay benefits under section 8(a). Further, the Arbitrator noted that Respondent should have replied to the requests under Rule 9110.70(d). The Arbitrator found Respondent had acted in bad faith. The Commission affirmed the Arbitrator’s assessment of the Section 19(1) penalty but vacated the 19(k) penalties and Section 16 attorney’s fees using its discretion despite the Arbitrator finding that the employer acted in bad faith.

    XII.      PERSONAL RISKS

    Purcell, Emily v. University of Illinois16 WC 30424, 19 IWCC 0432 (August 13, 2019).

    Petitioner worked for Respondent as a temporary employee. Petitioner’s job duties required her to coordinate events among various departments on and off campus. Petitioner was traveling across campus to drop off her timecard when she hopped over a fence and fell on Respondent’s premises, injuring her right elbow. At trial, the Arbitrator found, that Petitioner was not a traveling employee.  The Arbitrator found that Petitioner’s injuries did not arise out of her employment. The Arbitrator relied on the fact that Petitioner took a shorter route that had a fence, despite acknowledging that there was a path with no obstructions 10 to 15 feet to the left of where she sustained her injuries. The Commission affirmed the decision of the Arbitrator.

    On review, the Illinois Appellate Court addressed whether Petitioner established that she was a traveling employee or that her accident arose out of her employment. First, the Court found that the Commission’s decision that Petitioner was not a traveling employee was not against the manifest weight of the evidence because the Commission relied on the testimony of Petitioner’s supervisor.  The Supervisor testified that Petitioner performing duties outside of her workspace was not common. Further, the Court reasoned that Petitioner was not assigned duties outside of her workspace on the day she sustained her injuries, and that employees turned in timecards outside of their work hours. Therefore, the Court did not need to decide whether Petitioner was a traveling employee. 

    Secondly, the Appellate Court held that Petitioner’s claim did not satisfy the “arising out of” requirement of the Act because Petitioner voluntarily placed herself in an unnecessary situation that was unrelated to her duties when she attempted to climb the fence. Further, Petitioner did not claim her actions were in an effort to avoid an obstruction or defect, and she acknowledged that there was a safer route 10 to 15 feet to the left of where she sustained her injuries. Therefore, Petitioner’s decision to hop over the fence was done for her own convenience and not her employer. Based on the record, the Appellate Court affirmed the Commission’s decision denying benefits to the Petitioner.

    XIII.     COMMON RISKS

    Vaughan, Lois M. v. Memorial Medical Center,16 WC 17341, 18 IWCC 0690 (November 8, 2018).

    Petitioner worked for Respondent as a technician.  She sustained injuries to her right knee, which included a fracture of the patella, when she exited her employer’s building and fell while walking to the parking lot. The Petitioner testified that on October 29, 2015, she was walking along a sidewalk outside her employer’s building.  As she stepped off the sidewalk curb and onto the parking lot, she did not notice the difference in height between the parking lot and the sidewalk curb.  This caused her to stumble and fall on her knee.

    The Commission found that Petitioner failed to establish that her injuries arose out of her employment. Petitioner asserted that her injuries were due to the conditions of her employment because of the height differential between the sidewalk curb and the parking lot, as the curb appeared to be level with the parking lot asphalt. The Commission found that the height differential between the parking lot and the sidewalk curb was due to design and not a defect. Furthermore, the Commission also found that the Respondent’s premises was free from defects, special hazards, and risks, such as water, ice, holes, rocks or debris. Therefore, the Commission denied the Petitioner’s claim for benefits.

    Petitioner appealed the Commission’s decision and the circuit court affirmed. On review, the Illinois Appellate Court held that the Commission’s decision was not against the manifest weight of the evidence. The potential fall from a misstep while stepping over a curb onto lower-level asphalt was not a risk to the Petitioner’s employment where there is no evidence of a defect. Therefore, the Court affirmed the Commission’s decision because the Petitioner failed to establish that her injuries arose out of her employment.

    XIV.     CREDIBILITY

    Podlasek, Mary Beth v. Dahl Landscape Co., Inc.18 WC 26682, 21 IWCC 0039 (January 26, 2021).

    Petitioner was working for a landscaping company.  She developed low back pain while loading plants into a customer’s vehicle. She was diagnosed with a posterior right paracentral disk protrusion/extrusion and several bulging disks. She underwent a laminotomy and diskectomy surgery.  Respondent later requested a Section 12 examination and the doctor opined Petitioner reached maximum medical improvement. Although Petitioner requested further medical treatment, Respondent denied additional treatment based on the Section 12 opinion.

    At trial, Petitioner testified she experienced pain daily, had excruciating pain when bending down, and could not walk for more than 20 minutes. Respondent presented her physical therapy notes into evidence, which include statements by Petitioner to her therapist on several occasions that her low back pain had significantly improved. Respondent also presented a surveillance video of Petitioner walking with a normal gait for more than 40 minutes and picking up dropped objects with no difficulty. The Arbitrator found Petitioner’s additional treatment was not causally related to her work injury and that she was not credible. Based on the contradiction between the surveillance video and Petitioner’s testimony, the Arbitrator found that Petitioner had reached MMI on the date of the Section 12 examination and any treatment after that date was not causally related to the work accident.

    The Petitioner appealed.  The Commission affirmed and adopted the decision of the Arbitrator.

    XV.      JURISDICTION

    Bowen Joseph, v. William A. Niekamp Truck Service14 WC 15914, 18 WC 0008 (January 4, 2018).

    Petitioner appealed two Circuit Court decisions regarding the issue of credits for the Petitioner’s right leg injury. In addressing the first decision of the Circuit Court, the Illinois Appellate Court noted that the lower court neither confirmed nor set aside the Commission’s denial of credit under Section 8(e)17. The Circuit Court characterized the Commission’s denial of credit as legally erroneous and against the manifest weight of the evidence. The Circuit Court determined Respondent to be entitled to a 22.5%  credit against the award of for injury to  Petitioner’s right leg. In doing so, the court entered a decision it deemed was justified by law. However, the Appellate Court found the Circuit Court should have set aside the decision of the Commission before entering its own decision. If the Circuit Court does not set aside the Commission’s decision to deny credit, then there are two conflicting decisions in effect. Respondent’s claim to credit under Section8(e)17 remained unresolved, and therefore, the Circuit Court’s decision was not appealable until it either confirmed or set aside the Commission’s decision to deny credit.

    In the second decision of the Circuit Court, Respondent challenged the denial of its Section 19(f) motion. The Appellate Court found this issue also remained unresolved and was therefore, not appealable. The Circuit Court determined that the Commission’s denial of Respondent’s Section 19(f) motion was moot because the calculation of credit had been corrected. Because a moot case should be dismissed, the second decision  did not resolve the case. 

    XVI.     EXCLUSIVE REMEDY PROVISION

    Ibarra, Elia v. Prospera LLC2021 WL 1921015, N.D. Ill. 2021 (May 12, 2021).

    Respondent required Petitioner to have a fingerprint scanned to be enrolled in their time tracking database. Petitioner filed a lawsuit in U.S. District Court, Northern District of Illinois, under Biometric Information Privacy Act (BIPA), alleging: (1) Respondent failed to develop and adhere to a publicly available retention schedule for biometric data; (2) Respondent collected and stored Petitioner’s biometric information without obtaining a release; and (3) Respondent disclosed Petitioner’s biometric information without obtaining consent for disclosure.

    The defendant filed a motion to dismiss and argued that Petitioner’s claims were preempted by the Workers Compensation Act because, as an employee, their exclusive remedy was under the Workers Compensation Act. The U.S. District Court denied the motion, explaining BIPA claims are not preempted by the Workers Compensation Act.

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  • 07/27/2021 7:37 AM | Judy Pfeiffer (Administrator)

    I. WORKING CONDITIONS

    Vazquez v. Chicago Transit Authority, 18 WC 36940, 21 WC 00114 (March 10, 2021).

    Petitioner worked for Respondent as a bus operator. She sustained injuries to her right shoulder, arm, and leg on November 2, 2018, while she was exiting the driver’s seat. Petitioner fell forward after getting her left foot caught in a trash bag. As Petitioner was falling, she caught herself before hitting the ground by using her right arm to grab onto a railing. Following the accident, Petitioner was diagnosed with a right thigh strain and a tear to her right rotator cuff. 

    The Arbitrator found Petitioner’s injuries compensable based on the Petitioner’s testimony, medical records, and surveillance video. The Arbitrator reasoned that the act of exiting the bus with limited space surrounding the driver’s seat, followed by a loss of balance due to stumbling over something on the floor, involved an increased risk directly related to Petitioner’s employment. The Arbitrator also found that the current condition of ill-being was causally connected to the work-related accident because there was no evidence of right shoulder symptoms before the accident. The Commission affirmed the Arbitrator’s decision.

    II. UNUSUAL BODY MOVEMENT

    Henderson v. Illinois State University, 11 WC 15795, 21 WC 00139 (March 22, 2021).

    Petitioner worked for Respondent as a building service laborer and sustained injuries to his back and right shoulder.  Petitioner testified that on August 19, 2010, he was on one knee cleaning the bottom half of an elevator, when he stood up and felt a sharp pain in his back. Petitioner then grabbed onto a rail, which was located near the center of the elevator wall, to pull himself up and felt a sharp pain in his right shoulder. Following this accident, Petitioner was diagnosed with a right rotator cuff tear. 

    The Arbitrator found that Petitioner sustained a compensable accident and awarded benefits accordingly. The Arbitrator reasoned that Petitioner’s job required him to be in an awkward and uncomfortable position because the Petitioner had to be on one knee for a period of time in order to clean the bottom half of the elevator walls, while also using the railing to hold and lift himself up with his right arm. Collectively, these factors created an increased risk of injury distinct to the Petitioner’s employment. The Commission affirmed the decision of the Arbitrator. 

    III. WORK RELATED TRAVEL

    Cox v. Illinois, State of, 13 WC 13610, 21 WC 00117 (March 11, 2021).

    Petitioner worked as a personal assistant for Respondent.  Her job duties required that she travel to her clients to provide care. Petitioner injured her shoulders and knees when she slipped and fell outside of Respondent’s building entrance after she turned in her time sheets. At trial, Petitioner testified that on April 1, 2013, she went to Respondent’s state office building to drop off her time sheets. As she exited the building, she slipped and fell on rock salt and gravel outside the building’s entrance.

    The Arbitrator found that Petitioner was a traveling employee, and that it was reasonably foreseeable that the Petitioner could slip and fall at Respondent’s office building while dropping off her time sheets.  Accordingly, the Arbitrator found that Petitioner’s fall was compensable under the Act. 

    On review, the Commission found that the traveling employee analysis was inapplicable since a traveling employee’s injury is compensable only if the injury occurs while the employee is traveling for work. In the instant case, Petitioner was not traveling for work.  Rather, she was on-site at the Respondent’s premises when she slipped and fell.  Accordingly, the Commission found that the standard “arising out of” analysis applied. Applying the “arising out of” analysis, the Commission found that the hazardous condition of the Respondent’s premises was an employment-related risk. Therefore, Petitioner's slip and fall arose out of her employment. Although the Commission disagreed with the applicability of the Arbitrator’s traveling employer analysis, the Commission affirmed the Arbitrator’s decision and awarded temporary total disability benefits, medical expenses, and permanent partial disability for Petitioner’s left leg injury.

    IV. REPETITIVE CONDITIONS

    Wilkins-Simmons v. Illinois, State of/Elgin Mental Health Center, 14 WC 024866, 21 WC 00127 (March 16, 2021).

    Petitioner sustained injuries to her right thumb while working for Respondent as a security therapy aid. Petitioner had various job duties, including pushing wheelchairs, removing garbage bags, opening doors, passing out food trays, bathing patients, doing laundry, changing patient’s clothes and diapers, restraining patients when necessary, and occasionally using a computer. On June 22, 2014, Petitioner was passing out food trays when she felt a severe pain in her right thumb. After seeking treatment, she was diagnosed with right wrist CMC joint arthritis, which was exacerbated as a result of the accident, and DeQuervain’s disease. 

    The Arbitrator found that the Petitioner sustained a repetitive trauma injury to her right thumb that arose out of and in the course of her employment.  The Arbitrator relied on that fact that (1) Petitioner had no prior symptoms involving her thumbs, wrists or hands until June 22, 2014; (2) Petitioner provided a detailed listing of 20 activities she performed at work that required the use of her hands; and (3) medical testimony indicated that Petitioner’s duties were both repetitive and strenuous enough to cause the cumulative trauma of arthritis. Further, the Arbitrator reasoned that despite the fact that Petitioner performed a variety of activities at work, it did not negate the repetitive nature of the work tasks she performed with her hands. The Commission affirmed the Arbitrator’s decision and awarded medical expenses, temporary total disability, and permanent partial disability.  

    Cesario-Farraj, Lori v. UChicago Argonne LLC, 16 WC 19582, 21 IWCC 0044 (February 1, 2021).

                Petitioner worked for Respondent as a Data Management Specialist.  She alleged injuries to her right hand due to repetitive data entry work. Petitioner testified that her working conditions significantly changed due to an increase in her work schedule by adding more shifts and a new ticketing system and assignment to update to user manuals, which required her to use the keyboard more. Petitioner developed soreness in her right hand, which continued to increase, and she was ultimately diagnosed with de Quervain’s disease and right trigger thumb.

                The Arbitrator determined that the Petitioner’s injuries were compensable because the injuries arose out of her employment. The Arbitrator reasoned that Petitioner had no prior symptoms with her hand and thumb, and that her symptoms manifested with an increased volume of hand-intensive job duties. Additionally, there was medical testimony by Petitioner’s doctor indicating that the Petitioner’s work activities, at a minimum, started the inflammation process. Upon review, the Commission affirmed and adopted the Arbitrator’s decision.

    Harvey, Ronald v. Northern Illinois University Foundation, 12 WC 16123, 21 IWCC 0063 (February 11, 2021).

                Petitioner worked for Respondent as a press operator.  He alleged injuries to his hands due to his repetitive and hand-intensive work. Petitioner testified that his job duties consisted of loading reams of paper into a printing press. During the loading process, Petitioner would grab 20 pounds of paper at a time, fan the papers to spread them, and then load the paper into the press. In addition to feeding paper, Petitioner would also trim paper to the proper size to feed the press. In January 2012, Petitioner sought treatment after having difficulties performing his job duties, and he was diagnosed with thumb CMC joint arthritis and bilateral carpal tunnel syndrome.

                The Arbitrator determined that the Petitioner’s injuries arose out of and in the course of his employment and awarded benefits for a compensable injury.  The Arbitrator reasoned that the repetitive nature of Petitioner’s job duties required him to load and feed the press machine for up to four hours of his eight-hour shifts. Further, the Arbitrator stated that Petitioner’s testimony described that he had to use his wrists in a forced flexion position to feed the reams of paper into the press machine. Lastly, the Arbitrator found the opinions of the Petitioner’s doctors credible as they stated that Petitioner’s bilateral carpal tunnel syndrome and thumb CMC joint arthritis were aggravated by repetitive work gripping activities and Petitioner’s highly repetitive position as a press operator.  The Commission affirmed the decision of the Arbitrator.  

    V. BACK CONDITIONS

    Cisneros v. Northshore University Health System, 18 WC 30297, 21 WC 00112 (March 10, 2021).

    Petitioner alleged an injury her lower back while she worked for Respondent as a medical assistant. On August 10, 2018, Petitioner attempted to pick up a heavy box when she felt a pop in her back and noted numbness in her right leg shortly thereafter. Petitioner sought treatment the following day and was diagnosed with a lower back strain, prescribed physical therapy and steroids, and received restrictions of no heavy lifting. In February 2019, Petitioner began treatment with a pain specialist due to her ongoing pain, who diagnosed two disk protrusions. The pain specialist recommended a transforaminal lumbar interbody fusion. At trial, the Arbitrator found that the Petitioner’s ongoing condition was not causally related to the work accident and only awarded temporary total disability benefits through November 2, 2018 and denied medical treatment after November 20, 2018 because Petitioner did not prove causation.

    On review, the Commission found that there was a causal connection between Petitioner’s ongoing spine treatment and the work accident. The Commission disagreed with the Arbitrator on causation because (1) prior to the accident, the Petitioner did not exhibit any symptoms nor receive treatment for back pain; (2) Respondent’s Section 12 exam supported the Petitioner’s subjective complaints; and (3) the Arbitrator did not consider testimony from the Petitioner’s treating doctors who recommended an EMG / NCV, back brace, therapy, and epidural steroid injections in November 2018. The Commission modified the temporary total disability award to 59-3/7 weeks, through October 2, 2019, and ordered payment of all outstanding medical expenses. 

    Maroney, Kevin v. Joe’s Towing and Recovery, 17 WC 14133, 19 IWCC 0484 (September 6, 2019).

                Petitioner worked for Respondent as a tow truck driver.  He slipped on snow and fell on his back on December 18, 2016. Petitioner was diagnosed with syncope, and acute back and neck pain. Petitioner was worked full duty and did not pursue treatment until April 2017, when he alleged a second work accident to his back due to driving on a rough road. At trial, the Arbitrator did not award benefits for the second accident in April 2017 but did find that the Petitioner’s current condition was causally related to the first accident in December 2016. Therefore, the Arbitrator awarded Petitioner temporary total disability benefits for 26-6/7 weeks, medical expenses, and permanent partial disability to the extent of 75% loss of use of the person as a whole for Petitioner’s herniated disks that required surgical repair.

                On review, the Commission found that the Petitioner sustained a work-related accident on December 18, 2016. However, the Commission found that   Petitioner’s current back condition, including the need for surgery in 2017, was not causally connected to the work-related accident in 2016. The Commission relied on testimony by the employer’s examining doctor, who testified that the work-related fall from December 18, 2016. did not cause herniated discs. Instead, the doctor opined the CT scan showed no signs that the Petitioner had sustained a herniated disk.  When comparing the CT to a scan taken in 2012, the physician did not find any changes between the 2012 and 2016 scan.  Based on the doctor’s testimony, the Commission vacated the TTD benefits and reduced the medical and PPD awards.

                The Circuit Court affirmed the Commission’s decision. On appeal, the Illinois Appellate Court found the Commission reasonably concluded that Petitioner’s current condition was not related to the work-related fall from December 18, 2016. Therefore, the court affirmed the Commission’s decision.

    Roesch Joseph, v. Afton Chemical, 18 WC 28785, 21 IWCC 0031 (January 25, 2021).

                Petitioner was working for Respondent as a chemical production officer on a conveyor belt line and felt a pop in his neck and back. Petitioner’s orthopedic spine surgeon diagnosed Petitioner with tandem stenosis and several disk herniations and performed a three-level cervical fusion. The doctor also recommended a lumbar fusion and opined the need for the lumbar surgery was causally connected to the work accident. Respondent sent the Petitioner for a Section 12 examination. The Section 12 physician opined that Petitioner only sustained lumbar and cervical strains, which did not require additional medical treatment.

                The Arbitrator found Petitioner’s cervical and lumbar spine conditions were both causally related to the work accident. The Arbitrator gave more weight to the treating doctor’s opinions than those of Respondent’s examining doctor. This weight was based on the treating doctor’s extensive treatment of Petitioner, comprehensive testimony, and detailed records. The Arbitrator noted that the Respondent’s examining doctor seemingly had no knowledge of tandem stenosis.  Further, the Respondent’s examining physician was not an orthopedic surgeon. The Arbitrator found Petitioner was entitled to prospective medical care and awarded payment for the recommended lumbar fusion.

    Respondent appealed the decision.  The Commission affirmed and adopted the decision of the Arbitrator.

    VI. PERMANENT PARTIAL DISABILITY

    Kaiser v. St. Michael’s Counseling Center Inc., 14 WC 33647, 21 WC 00142 (March 24, 2021).

    Petitioner worked as a nurse at a methadone clinic and her job duties required her to draw blood. On August 22, 2014, Petitioner was drawing blood from a patient when the patient jumped, causing the needle to stick Petitioner in the thumb and exposed Petitioner to the patient’s blood.. Petitioner knew the patient was a heroin addict and had hepatitis C, which concerned her for potentially contracting hepatitis C or HIV.  As a precaution, Petitioner underwent a 28-day course of antiviral medication.

    Petitioner alleged psychological trauma based on the amount of stress and anxiety that she endured after being stuck by the needle that she used to draw blood from the patient. Petitioner testified that the multiple and prolonged testing caused her daily stress for months. Based primarily on Petitioner’s testimony, the Arbitrator found that the Petitioner sustained 3.5% loss of use of the person as a whole due to her psychological trauma. On review, the Commission reversed the Arbitrator’s decision.  The Commission found that:   (1) despite Petitioner’s testimony about her concerns for potentially contracting a disease, Petitioner never followed up with her doctor for additional testing; (2)  Petitioner never exhibited any symptoms or tested positive for any disease after the work incident; (3) although Petitioner may have experienced stress due to the incident, there was no indication the stress level rose to the level for permanent disability; (4) Petitioner was never diagnosed with stress or an anxiety disorder; and (5) after the work incident, Petitioner continued her job as a nurse. Therefore, the Commission found that Petitioner failed to meet her burden of proving she sustained any permanent disability as a result of the work incident.

         

    VII. PERCENT LOSS OF USE

    Vantrecce v. Comprehensive Behavioral Health, 19 WC 22482, 21 WC 00122 (March 15, 2021).

    Donato, Anthony v. HD Plumbing & Heating, 17 WC 29615, 21 IWCC 0046 (February 1, 2021).

    Cross, Bonita v. Champaign County Headstart, 18 WC 02618 and 18 WC 06791, 21 IWCC 0052 (February 3, 2021).

    VIII. PERMANENT TOTAL DISABILITY

    Parra v. Admiral Heating and Ventilating, 12 WC 43353, 13 WC 0609, 21 WC 00123 (March 15, 2021).

    IX. CHOICE OF PHYSICIAN

    Bockhom v. Three Springs Lodge, 18 WC 09957, 21 WC 00121 (March 15, 2021).

    X. UNREASONABLE & VEXATIOUS CONDUCT

    Daciolas v. Chicago, City of, 15 WC 11389, 15 WC 32525, 17 WC 15385, 17 WC 15386, 21 WC 00118 (March 11, 2021).

    XI. DELAYS

    Diaz v. Harvey Police Dept., 17 WC 35923, 21 WC 00126 (March 16, 2021).

    XII.      PERSONAL RISKS

    Purcell, Emily v. University of Illinois, 16 WC 30424, 19 IWCC 0432 (August 13, 2019).

    XIII.     COMMON RISKS

    Vaughan, Lois M. v. Memorial Medical Center,16 WC 17341, 18 IWCC 0690 (November 8, 2018).

    XIV.     CREDIBILITY

    Podlasek, Mary Beth v. Dahl Landscape Co., Inc., 18 WC 26682, 21 IWCC 0039 (January 26, 2021).

    XV.      JURISDICTION

    Bowen Joseph, v. William A. Niekamp Truck Service, 14 WC 15914, 18 WC 0008 (January 4, 2018).

    XVI.     EXCLUSIVE REMEDY PROVISION

    Ibarra, Elia v. Prospera LLC, 2021 WL 1921015, N.D. Ill. 2021 (May 12, 2021).

    Read more in part 2.

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

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

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

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

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

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

    II.  Increased Risk

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

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

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

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

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

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

    IV. Repetitive Conditions

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

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

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

    The Commission affirmed and adopted the decision of the Arbitrator.

    V. Preexisting Injuries

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

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

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

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

    VI. Assaults

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

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

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

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

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

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

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

    VII. Previous Settlement

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

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

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

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

    VIII. Disfigurement

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

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

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

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

    IX. Percentage Loss of Use

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

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

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

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

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

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

    X. Credits

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

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

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

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

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

    XI. Jurisdiction

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

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

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

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

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

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

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

    I.        ARISING OUT OF EMPLOYMENT

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

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

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

    II.                  ACCIDENTAL INJURY

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

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

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

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

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

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

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

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

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

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

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

    III.     CAUSAL RELATIONSHIP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    IV.     EMPLOYEE IMPROPER CONDUCT 

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

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

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

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

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

    V.      CALCULATION OF PREINJURY WAGES

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

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

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

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

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

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

    VI.     TEMPORARY TOTAL DISABILITY BENEFITS

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

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

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

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

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

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

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

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

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

    VII.     COMPUTATION OF AWARDS

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

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

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

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

    VIII.    PERMANENT DISABILITY BENEFITS

    IX.       MEDICAL & REHABILITATION  BENEFITS

    X.        BENEFIT PAYMENT PROCEUDRES

    XI.      HEARING LEVEL PROCEDURES

    XII.     EVIDENCE

    XIII.     INJURED WORKERS’ BENEFIT FUND


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

    I.                   STATUS OF EMPLOYMENT

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

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

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

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

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

    II.                   ACCIDENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    III.                  EVIDENCE

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

    IV.                   MEDICAL CAUSATION

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

    V.                   AUTHORIZATION & PAYMENT OF MEDICAL BILLS

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

    VI.                   PENALTIES

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

    VII.                   PERMANENCY

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

    VIII.                   BENEFIT PAYMENT PROCEDURES

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

    IX.                   OTHER ISSUES

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

    READ MORE

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    III.             MEDICAL CAUSATION

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

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

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

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

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


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

    III. MEDICAL CAUSATION

    IV. INTOXICATION

    V. MEDICAL PAYMENT/AUTHORIZATION

    VI. TEMPORARY TOTAL DISABILITY BENEFITS

    VII. PERMANENCY BENEFITS

    VIII. PROCEDURAL ISSUES

    IX. POST-ARBITRATION ISSUES

    X. OTHER ISSUES

    READ MORE.

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

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

    I.                   EMPLOYER/EMPLOYEE RELATIONSHIP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    III.             MEDICAL CAUSATION

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

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

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

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


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

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

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

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

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

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

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

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

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

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

    IV.             INTOXICATION

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


    V.                PERMANENCY BENEFITS

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


    VI.             DEPENDENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    More case law summaries available for download.

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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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


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

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

    Download a copy of the November case summaries.

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