CASE LAW UPDATE FEBRUARY 2021

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.

Vitas J. Mockaitis,  President | Michelle Lafayette Vice President | Catherine Doan, Treasurer Christine M. Jagodzinski, Secretary

Copyright © 2016 WCLA.  All Rights Reserved.

Powered by Wild Apricot Membership Software