MARCH 2021 CASE LAW SUMMARIES

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

I.                   STATUS OF EMPLOYMENT

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

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

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

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

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

II.                   ACCIDENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.                  EVIDENCE

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

IV.                   MEDICAL CAUSATION

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

V.                   AUTHORIZATION & PAYMENT OF MEDICAL BILLS

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

VI.                   PENALTIES

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

VII.                   PERMANENCY

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

VIII.                   BENEFIT PAYMENT PROCEDURES

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

IX.                   OTHER ISSUES

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

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