JULY 2021 CASE LAW SUMMARIES (Part1)

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

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

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

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

II.                ARISING OUT OF EMPLOYMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.              OCCUPATIONAL DISEASE

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

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

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

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

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

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

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

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

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

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

IV.              CAUSAL RELATIONSHIP

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

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

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

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

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

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

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

V.                EMPLOYEE IMPROPER CONDUCT

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

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

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

VI.              CALCULATION OF PREINJURY WAGES

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

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

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

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

VII.                    TEMPORARY TOTAL DISABILITY BENEFITS

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

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

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

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

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