JUNE 2021 CASE LAW SUMMARIES (PART 2)

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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