July 2021 - CASE LAW SUMMARIES (Part 2)

08/30/2021 3:43 PM | Judy Pfeiffer (Administrator)
VIII.                 PERMANENT DISABILITY BENEFITS

Delgado v. PNR Painting Plus Inc. 17 WC 23580, 21 WC 0161 (IWCC April 7, 2021)

Petitioner worked as a house painter for approximately 15 years and was earning $20.00 per hour on the date of injury. On July 15, 2017, he fell from a ladder injuring his head and right ankle. Petitioner was 30 years old at the time of the injury. After pursuing medical treatment, petitioner was released to work with restrictions of no carrying greater than 10 pounds, no standing more than 5 minutes, no excessive climbing and the ability to lift or elevate his leg. Due to the permanent restrictions, petitioner was unable to return to work as a painter. He located employment working for another company in a sedentary position earning $15.00 per hour. Petitioner testified to ongoing pain and difficulty driving. The issue at hearing was the nature and extent of petitioner’s injury.

The Arbitrator considered the five factors outlined in Section 8.1(b) of the Illinois Workers’ Compensation Act in assessing permanency (i) the reported level of impairment pursuant to physician’s findings per the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records. The Arbitrator noted the parties did not present evidence of an AMA impairment rating and assigned no weight to the first factor. The Arbitrator assigned great weight to the second factor since petitioner worked as a professional house painter for 15 years and was unable to return to this profession. The Arbitrator assigned great weight to the third factor, since petitioner was only 30 years old at the time of the injury and had many years left in the work force and the injury limited his abilities in certain physical labor fields. In assessing factor four, the Arbitrator assigned great weight since petitioner earned $5.00 less per hour in his current job.  Finally, the Arbitrator assigned great weight to the fifth factor since petitioner testified to ongoing pain and difficulty driving. The medical records also documented residual pain, stiffness and deficits with the likelihood he would develop subtalar arthrosis and require injections in the future.  After considering all five factors, the Arbitrator awarded 25% loss of use of the person as a whole. The Commission affirmed the award.

Blacker v. Fox Developmental Center, 15 WC 38891, 21 WC 0045 (IWCC February 1, 2021)

Petitioner worked as a support service worker and her job duties primarily included housekeeping. She had concurrent employment as a school bus driver. Petitioner alleged an injury to her right foot while attempting to move a housekeeping cart and was eventually diagnosed with a complex regional pain syndrome. There was no dispute regarding her diagnosis or treatment. She eventually underwent a functional capacity evaluation, which found she could function at the medium physical demand level. Although there was some disagreement as to whether she required permanent sedentary or light to medium restrictions, all agreed she was unable to return to work full duty.  The parties disagreed as to whether petitioner could continue driving a school bus and the primary issue at trial was the nature and extent of her injury.

In assessing permanency, the Arbitrator considered the five factors enumerated in Section 820 ILCS 305/8.1b(b) of the Illinois Workers’ Compensation Act as follows: (i) the reported level of impairment pursuant to physician’s findings per the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records.  At trial, neither party submitted an AMA impairment rating and the Arbitrator gave no weight to the first factor. The Arbitrator considered assigned great weight to the second factor and reasoned petitioner was unable to continue working as a support service worker and also agreed with petitioner’s witnesses that she also lost access to her employment as a bus driver. The Arbitrator assigned some weight to the third factor, noting petitioner was 52 years old when the accident occurred and was well under retirement age and must live with the residual symptoms and lost many years of work in her chosen fields. The Arbitrator gave some weight to the fourth factor since the labor market survey submitted at trial suggested she had a diminished earning capacity. Finally, the Arbitrator gave significant weight to the fifth factor since the medical records corroborate petitioner’s testimony of continued symptoms that affect her daily activities and given her reduced physical demand level noted on the functional capacity evaluation.  After considering all five factors, the Arbitrator awarded 47.5% loss of the person as a whole pursuant to Section 8(d)2 of the Act. The Commission affirmed the Arbitrator’s decision.

Garay v. Lowes Chicago O’Hare, 15 WC 10352, 21 WC 0105 (IWCC March 5, 2021)

Petitioner worked as a houseman at a hotel and alleged a twisting injury to his left knee. He was eventually diagnosed with an aggravation of significant degenerative osteoarthritis and underwent a knee replacement. Per the opinion of its Section 12 examiner, respondent disputed that the need for surgery was causally related to the work injury. Petitioner testified to some residual knee pain and that he continued working for respondent, although his co-workers assisted him and permitted him to perform lighter duty tasks when needed. 

The Arbitrator found petitioner’s condition causally related to the work injury and in assessing permanency, considered the five factors enumerated in Section 820 ILCS 305/8.1b(b) of the Illinois Workers’ Compensation Act as follows: (i) the reported level of impairment pursuant to physician’s findings per the AMA Guides; (ii) the occupation of the injured employee; (iii) the age of the employee at the time of the injury; (iv) the employee’s future earning capacity; and (v) evidence of disability corroborated by the treating medical records.  Neither party submitted an AMA rating into evidence and the Arbitrator assigned no weight to the first factor. The Arbitrator assigned moderate weight to the second factor since petitioner’s job required lifting and setting up banquet tables. However, petitioner returned to full duty work after his surgery, although he required assistance on occasion. The Arbitrator gave moderate weight to the third factor since petitioner was 62 at the time of the injury and it was more difficult for him to recover from the injury, although he also had less time left in the work force. The Arbitrator gave less weight to the fifth factor since petitioner returned to his pre-injury employment and there was no evidence of a reduced earning capacity, although the Arbitrator acknowledged it would be more difficult for him to seek employment in the general work force. Finally, the Arbitrator considered the fifth factor and assigned significant weight since petitioner had residual symptoms with activity noted in the medical records.  After considering all five factors, the Arbitrator awarded 47.5% loss of use of the left leg per Section 8(e)12 of the Act.

IX.              AUTHORIZATION & PAYMENT OF MEDICAL PERSONNEL

Davis v. Tyson Foods, 18 WC 18489, 21 WC 0154 (IWCC April 5, 2021)

Petitioner alleged injuries to his low back and right ankle on May 25, 2018 after he slipped and fell on a banana in the employee breakroom. Following the incident, respondent directed petitioner to an occupational medical clinic.  He then pursued treatment on his own with a chiropractor. While under the care of the chiropractor, petitioner presented to the emergency room on two occasions due to severe lower back pain. Thereafter petitioner pursued treatment with an orthopedic surgeon who eventually referred petitioner to pain management. Respondent accepted liability for the work injury, although it disputed liability on the basis of causal connection pursuant to a Section 12 opinion finding that petitioner did not require any further treatment and was not a surgical candidate. It further disputed liability for some of petitioner’s medical expenses as it maintained he exceeded his two chains of medical providers.

The Arbitrator found petitioner’s condition causally related to the work injury. The Arbitrator further held petitioner did not exceed his two choices of medical providers and reasoned respondent directed petitioner to the occupational health clinic and it was not a provider chosen by petitioner.  The Arbitrator further found the emergency room visits did not constitute a choice of provider since Section 8(a) of the Act excludes emergency treatment provider choice. The Arbitrator differentiated the case from Wolfe v. Indust. Comm’n, 416 N.E. 2d (1985), which found an emergency room visit constituted a choice of medical provider. The Arbitrator reasoned that in Wolfe petitioner had seen his treating doctor the same day he went to the emergency room and made no attempt to contact his doctor prior to going to the emergency room. In the present case, petitioner’s emergency room visits were due to severe low back and right leg pain.  The Commission affirmed the decision.

X.      RETALIATION

Siwak v. Xylem Inc., 20 ILWCLB 108 (N.D. Ill. 2021)

Plaintiff filed a charge against his former employer alleging retaliatory discharge in 2019 after he filed and settled a workers’ compensation claim in 2017. The employer pursued summary judgement given the time between his 2017settlement and the 2019 termination.  Plaintiff argued summary judgement was improper since the termination letter stated the plaintiff reached a settlement for his workers’ compensation clam and therefore his employment was to be terminated based on the settlement agreement.

The District Court granted the summary judgement motion reasoning for purposes of a retaliatory discharge claim, the causality requirement needs more than sequential connection and the ultimate issue is the employer’s motive in termination. The Court reasoned plaintiff’s termination letter did not prove the employer had a motive to punish or retaliate against him for the workers’ compensation claim. Rather, the letter showed the employer believed his separation was a component of the settlement agreement.  Since the employer reasonably believed plaintiff had resigned as part of his settlement agreement, it defeated the causation element to the retaliatory discharge claim.

XI.        EMPLOYEE’S TORT ACTION AGAINST EMPLOYER

Vrchota v. DD&G Development & Restorations, 13 WC 34611, 21 WC 0169 (IWCC April 13, 2021)

Petitioner alleged lacerations arising out of his employment on October 9, 2013. Respondent disputed petitioner was an employee and contended he was an independent contractor. It further disputed accident regardless of the employment relationship. Petitioner pursued a civil liability claim against respondent arising from the same incident in which the employer maintained petitioner was an independent contractor, which was against its interests in that case. Following the hearing, the Arbitrator found petitioner was an independent contract and denied benefits under the Act.

Petitioner timely appealed the decision to the Commission. While pending on review, respondent filed a Motion to Dismiss the appeal arguing petitioner executed a settlement and release of his civil claim against respondent for the injury at issue and a dismissal order stated “said cause having been settled by agreement of the parties.” Respondent argued the dismissal order was a public record and subject to judicial notice and petitioner was precluded from continuing his workers’ compensation claim pursuant to Sections 5(a) and 11 of the Illinois Workers’ Compensation Act.

The Commission found the dismissal order was subject to judicial notice since Illinois Courts “recognize documents containing readily verifiable facts from sources of indisputable accuracy may be judicially noticed if doing so will aid in the efficient disposition of a case.” While the Commission could not take judicial notice of the settlement document, the order documenting a settlement by agreement of the parties was subject to judicial notice. The Commission found petitioner was disqualified from obtaining an award since he received payment from the employer. The Commission cited to the holding in Rhodes v. Indust. Comm’n, 92 Ill.2d 467 (1982), wherein the Supreme Court held if an employee receives payment from his employer as a result of a common law action, he is disqualified from obtaining an award under the Workers’ Compensation Act. To hold otherwise would frustrate the legislative intention underlying Section 5 of the Act.

Torrijos v. International Paper Co., 2021 IL App (2d) 191150

Plaintiff worked as a temporary employee for a staffing agency and was eventually placed at a packaging company. Plaintiff injured her arm while working for the company and filed a claim and received workers’ compensation benefits. Plaintiff subsequently pursued a negligence claim against the packaging company. The packaging company argued it was a borrowing employer under Section 1(a)(4) of the Illinois Workers’ Compensation Act and the exclusivity remedy provision barred the claim. However, there was a dispute as to whether the packaging company was a borrowing employer. The trial court granted the packaging company’s summary judgement motion.

The Appellate Court affirmed and reasoned the packaging company was a borrowing employer and the exclusive remedy provision extends to borrowing and loaning employers. The Court found the packaging company had direction and control and the plaintiff worked the same shift as the packaging company employees, used the company’s equipment and was supervised by the packaging company. The packaging company had control over her work hours and the right to terminate. The Court also found it significant the plaintiff interviewed with the packaging company and completed an application. As such, the plaintiff impliedly consented to the borrowed employee relationship.

      XII.       EMPLOYEE’S TORT ACTION AGAINST THIRD PARTY

Simmons v. Citation Oil and Gas Corp., 29 ILWCLB 110 (S.D. Ill. 2021)

Citation owned an oil field and hired an independent contractor to extract oil from an elevated pumpjack. There was an explosion in a trailer owned by the contractor that killed one of the contractor’s employees. The estate filed a third-party cause of action against Citation, the owner and operator of the oil field.  Pursuant to its service contract, Citation subsequently filed a third-party complaint for contribution and indemnity against the independent contractor pursuant to the Illinois Joint Tortfeasor Contribution Act. There was a provision in the contract that the contractor would indemnify “any and all losses…in any amount”. The independent contractor argued its damages would be capped at its total workers’ compensation liability and that the Illinois Construction Contract Indemnification for Negligence Act made the indemnification provision of its contract void as a matter of public policy and moved for dismissal.

The Court denied the motion to dismiss reasoning that while the employer’s contribution to a third party is generally limited to its workers’ compensation liability as discussed in Kotecki v. Cyclops Welding Corp., 146 Ill. 2d (1991), this can be waived by contract. The Court found the language in the indemnification provision constituted a waiver of the damages cap.  The Court also found the indemnity provision valid and enforceable since it was limited to the contractor’s pro rata share of damages. 

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