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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Download a copy.
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.