CASE LAW SUMMARIES NOVEMBER 2020

12/09/2020 9:53 AM | Judy Pfeiffer (Administrator)

Course of Employment- Deviations - Claimant wins benefits for parking lot wipeout despite violating company policy

Case name: Patton v. DB Schenker, 20 IWCC 0377.

Ruling: The Commission awarded benefits to the claimant for injuries sustained when he slipped and fell on ice in the parking lot while heading out to his car just before his lunch break.

What it means: A claimant’s violation of his employer’s policy, by going out to his car before clocking out for lunch to start his vehicle and warm it up, does not constitute a sufficient deviation to remove him from the course and scope of his employment. The claimant did not deviate from his normal path from the main entrance to his car. The claimant did not behave recklessly or negligently when he hurried to his car. Hurrying to his car a few minutes early did not negate the fact that there were patches of ice on the parking lot pavement. The claimant, or any other employee, could have slipped and fallen on the same patch of ice if he had left during his designated lunch break 5 to 10 minutes later.

Summary: The claimant was employed at a warehouse that sells no products. He works in a guard station on the road leading to the warehouse.  The facility, which also includes the parking lot, where the claimant worked was not owned or controlled by the employer. Both parties agree that the parking lot is used by both employees and any visitors of the facility. Petitioner testified that his supervisor told him to park in the parking lot and all the other employees also parked in the lot. Mr. Wilson denied supervisors told employees to park in the parking lot. The claimant testified that he usually ate lunch in his car. On March 3, 2019, the claimant was scheduled to work 6 p.m. to 6 a.m. He went outside a few minutes before midnight to warm up his car before his lunchbreak. While going to his car he slipped on ice and fell, injuring his back. While it was getting dark when he arrived, Petitioner noticed no snow or ice on the ground when he arrived at work.  The claimant testified that he regularly warmed up his car before clocking out for his lunch break so the car was already warm when he ate his lunch. Petitioner testified that his supervisor gave him permission to do so and was never reprimanded or disciplined for doing so. He testified that he personally witnessed other workers engaging in the same behavior. The supervisor testified this practice of going to his car before clocking out violated company policy. The arbitrator found that the claimant voluntarily exposed himself to an unnecessary personal danger solely for his own convenience.

This case requires the Commission to consider two questions: 1) whether the parking lot where Petitioner and other employees parked is part of Respondent’s premises; 2) whether Petitioners violation of the Respondents policies regarding clocking in and out for lunch break sufficiently took Petitioner out of the course of his employment. The Illinois Appellate Court has identified three factors used to determine whether an employer provided a parking lot for the use if its employees: 1) whether the parking lot is owned by the employer; 2) whether the employer exercises control or dominion over the parking lot; and 3) whether the parking lot is a route required by the employer.                                           

Upon review, the Commission reversed the arbitrator and awarded benefits. The totality of the evidence established that the parking lot was a “route required by the employer” because it was the only way to reach the main entrance via the parking lot and there were no alternative places where employees can park and employees had to navigate the parking lot to enter the building. Therefore, the lot was considered part of the employer’s premises. The Commission also found that the claimant’s injuries resulted directly from a hazardous condition on the employer’s premises and, therefore, arose out of the employment. Although, the Commission explained that it does not condone the claimants attempt to circumvent the employers established attendance policies. The claimant’s violation of the policy did not warrant a finding that his injury did not arise out of, or in the course of employment.

The Commission found that the Petitioner sustained injuries that arose out of and in the course of his employment and Petitioner’s current condition of ill-being regarding his lumbar spine was causally related to the work accident. The Commission awarded appropriate TTD benefits in relation to Petitioner’s work injury.

Arising out of Employment- Parking Lot Exception- WCA doesn’t cover sales associate’s fall in store parking lot

Case name: Hoots v. Dollar General, 20 IWCC 0483.

Ruling: In denying benefits, the Commission held that the claimant’s accident in a parking lot near her employer’s store did not arise out of her employment. The Petitioner was not a traveling employee because the Petitioner provided no evidence that she was paid for her travel time or for any travel expenses. The Petitioner was not at any greater risk than the general public. The arbitrator also noted there was no damage or defect noted in the lot. The arbitrator found that black ice on the parking lot would present the same risk to the general public it would to petitioner, given that the petitioner provided no credible evidence she entered or exited the store any more frequently each day of training than any customer who came into the store would.

What it means: Where the claimant parks in a lot near her employers store, but the lot is not owned or controlled by the employer, the employer does not direct her to park in the lot, and there is no evidence that the lot is a route required by the employer, or the employer has not provided the parking lot to its employees, an injury would not arise out of the employment.

Summary: The claimant, a sales associate trainee, was hired to work at a store not yet open. She was assigned to train at another location. The training was mandatory. The training location was next to a strip mall. There was some parking adjacent to the store, and additional parking in the adjacent strip mall. The claimant testified that she was not instructed to park in a specific location and was permitted to park in any lot. The Petitioner also testified that she did not know who owned or maintained the Dollar General Parking Lot and was trying to figure out who owned the lot when she fell. She stated that the general public can park anywhere in the Dollar General Lot. On November 19, 2017, she was scheduled to start at 8:00 a.m. She arrived at 7:50 a.m. and it was cold, wet and misty outside. She pulled into the lot and parked in a spot in a row across from the parking spots adjacent to the store. She got out of her car and walked towards the store while carrying her purse, a drink, and a folder for training. As she was walking, she slipped on some black ice and fell landing on her left ankle, knee and leg. The arbitrator denied benefits, finding the claimant failed to prove an accident arising out of and in the course of employment.

In affirming, the Commission explained that the claimant’s accident was not compensable pursuant to Walker Bros. v. Ill. Workers’ Comp. Comm’n, 2019 IL App. (1st) 181519WC, the Illinois Appellate Court stated that in determining whether the parking lot exception applies, it must be determined whether the employer provided the parking lot in question to its employees. The factors to be considered include (1) whether the parking lot was owned by the employer; (2) whether the employer exercised control or dominion over the parking lot; and (3) whether the parking lot was a route required by the employer.

The Petitioner argued that the fall was compensable pursuant to DeHoyas v. Industrial Comm’n, 26 Ill. 2d 110 (1962), in which the court held that as long as an employer provides parking which is customarily used by its employees, the employer is responsible for the maintenance and control of the lot. The Petitioner contends that her fall was compensable as she was attending a mandatory training, the employer provided the lot in question and permitted her to park in the lot and the black ice was a hazardous condition on the employer’s premises. As such, she was exposed to a greater risk of injury than the general public.

The employer’s control or dominion over the parking lot is a significant factor. Here, the claimant fell in a parking lot that was neither owned nor controlled by the employer. The claimant confirmed that the employer did not direct her to park in the lot and other lots were available. There was also no evidence that the parking lot was a route required by the employer. Further, the lots were open to the general public, including customers of nearby stores. Based upon the analysis in Walker Bros. v. IWCC, the Commission found the claimant failed to prove an accident arising out of and in the course of her employment.

Arising out of Employment- Increased Risk- Correctional officer secures benefits for injury whole traversing sidewalk

Case name: Little v. Illinois, State of Dept. of Corrections, 20 IWCC 0461.

Ruling: The Commission awarded benefits to the claimant for injuries sustained when she fell while traversing a sidewalk at a correctional facility.

What it means: Where the claimant’s multiple job duties require that she traverse a sidewalk repeatedly throughout her shift and in a brisk manner, the claimant’s work activity represents a quantitively increased risk over that faced by the general public.

Summary: The claimant, a corrections officer, worked at the Pittsfield Work Camp. Her duties included safety and security of staff and offenders. In this capacity, she regularly walked the sidewalks inside the fenced area to all the different areas of the camp. Petitioner testified that depending on her duties she can walk this sidewalk many times a day. In this capacity, she regularly walked the sidewalks inside the fenced area to all the different areas of the camp, including the housing units, gym and dietary locations. On April 3, 2016, the claimant was having a discussion with an offender when she noticed a vehicle pulled into the parking lot prior to visiting hours. The claimant then called out to a coworker and started walking toward him in an attempt to talk to him regarding an offender. As the claimant was walking briskly, which was not normal pace, she stepped off the edge of the sidewalk into the gravel area, which was about an inch or two lower than the sidewalk, and twisted her right ankle and fell. The arbitrator awarded benefits.

The arbitrator found that given the fact that petitioner was walking briskly on the sidewalk; that the gravel on the north side of the sidewalk was ½ to 2 inches lower than the sidewalk, causing a drop off the pitched sidewalk; that petitioner walks this sidewalk many times a day depending on her job duties; that only respondent employees are allowed to walk this sidewalk alone; that visitors of inmates only walk this sidewalk when they are escorted by a Correction’s Officer; that the area where petitioner was, was a fenced in area that the general public is not allowed unless escorted by a Correction’s Officer during visiting hours and that petitioner was in the performance of her duties at the time of injury since she was walking towards a coworker to discuss an inmate issue, the arbitrator found the petitioner was at a greater risk than the general public, and therefore sustained an accidental injury that arose out of an in the course of her employment by respondent on 4/3/16 when she fell off the edge of the sidewalk onto her right side.

The Commission noted that although the level of the gravel edging along the sidewalk was not uniform, the described variations did not constitute a defect. The first step in analyzing risk is to determine whether the claimant’s injuries resulted from an employment-related risk. Risks are distinctly associated with employment when at the time of the injury, “the employee was performing acts [s/he] was instructed to perform by [her/his] employer or acts which the employee might reasonably be expected to perform incident to [her/his] duties.

While the evidence indicates the level of the gravel edging along the sidewalk was not uniform, the Commission did not believe the described variations constituted a defect and, therefore, found that the claimant was not exposed to an employment risk. As the claimant was not exposed to an employment risk, the Commission conducted a neutral risk analysis. Injuries resulting from a neutral risk generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to a greater degree than the general public. The evidence demonstrated that in addition to being assigned to either the gym or entrance control, the claimant was also the primary placement officer, which meant she dealt with any issues regarding the inmate’s beds, assignments, or any other problems. Her job responsibilities resulted in her repeatedly traversing the sidewalk at a fast pace in order to sufficiently do both jobs. The Commission found the claimant’s testimony of repeatedly traversing the sidewalk represented a quantitively increased risk over that faced by the general public. As such, the claimant sustained an accidental injury arising out of and in the course of employment.

Calculation of Preinjury Wages- Bonuses-Claimant successfully proves bonus compensation should be included in AWW

Case name: Pistorius v. Zurich North America, 20 IWCC 0463.

Ruling: On remand from the Circuit Court, the Commission held that the claimant sustained an accident arising out of and in the course of employment and awarded medical expenses and temporary total disability benefits.

In a case involving either or both psychological and physical injuries, both are compensable under the Act when they are related to and caused by a work-related physical injury. In “physical-mental” cases, even a minor physical contact or injury may be sufficient to trigger compensability. Moreover, an employer takes its employees as it finds them, even in cases involving mental stress.

What it means: Where the employer offers “bonus compensation” to the claimant and claimant provides credible testimony and evidence this compensation is part of an incentive-based pay program involving diary management, sufficient evidence establishes that the bonus compensation should be included in the claimant’s average weekly wage.

                A physical-mental case is compensable even when there is a minor physical contact or injury. The work-related physical trauma need not be the sole causative factor but need only be a causative factor of the subsequent mental condition.

Summary: The claimant was working as a claim’s handler for the employer. Her duties included reviewing assigned claims for subrogation potential, obtaining experts if needed, obtaining and reviewing any necessary contracts to determine a responsible party, and attempting to recover attorney’s fees. She would sometimes attend mediations and prepare case summaries. She alleged that on May 27, 2014, she was entering an elevator in the building where she worked when the door hit her right shoulder and upper back, causing severe pain. The arbitrator denied benefits, and the Commission affirmed. On appeal, the Circuit reversed and remanded it to the Commission.

First on remand from the Circuit Court, the Commission held that claimant sustained an accident arising out of and in the course of employment and awarded medical expenses and temporary total disability benefits. In order to obtain compensation under the Act, a claimant must prove that some act or phase or her employment was a causative factor in her ensuing injures. An accidental injury need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor in the resulting condition of illbeing; a chain of events which demonstrates a previous condition of good health, an accident, and subsequent injury resulting in a disability is sufficient to prove a causal nexus between the accident and the employee’s injury. On remand, the IWCC held the evidence supported a finding of the accident because a chain of events which demonstrates a previous condition of good health, an accident, and subsequent injury resulting in a disability may be sufficient to prove a causal nexus between the accident and the employee’s injury. In this case, the Petitioner claims both physical injuries and psychological injuries resulted from the accident. In these “physical-mental” cases, even a minor physical contact or injury may be sufficient to trigger compensability.

 Second, additionally on review, the claimant argued that the arbitrator should have included bonus compensation in the calculation of the claimant’s average weekly wage. The parties disputed the Petitioner’s average weekly wage for the year prior to the accident. The Arbitrator ruled that Petitioner failed to establish which portion of her total annual earnings constituted a bonus that would not be included in the annual weekly wage calculation. The claimant in a workers’ compensation proceeding has the burden of establishing her average weekly wage.  On review, the Petitioner’s primary argument is that the Arbitrator should have included bonus compensation in the calculation of the AWW. The claimant testified regarding the employer’s performance management program, particularly diary management. The claimant explained that the employer used diaries to follow up on other carriers, check on demands, prepare demands, prepare case summary reports, schedule telephone calls and document any tasks necessary. She also testified that she had monthly meetings with her manager regarding diary management and how much money she had recovered versus the goal amount. Also, the claimant testified that diary management had a direct impact on the bonuses and compensation. She noted that untimely completing the diary entries affected the performance reviews and bonus compensation. The Commission found the claimant’s unrebutted testimony sufficiently specific to establish that her bonus compensation was part of a formal, incentive- based pay program. Accordingly, the Commission determined that the bonus compensation must be included in calculating the claimant’s average weekly wage.

Last, the Commission then considered whether Petitioner established a causal connection regarding her “physical-mental” claim. Petitioner contends that the pre-existing psychological condition was aggravated by her work-related accident. As noted earlier, even a minor physical contract or injury may be sufficient to trigger compensability. Petitioners medical records and even Dr. Jacker’s Section 12 report establish that Petitioner suffered at least a minor physical contact or injury. Therefore, the Commission found there was a causal connection between the work accident and her psychiatric condition.

Calculation of Preinjury Wages- Part -Time Workers- Bus driver’s AWW calculation requires adjustment to avoid windfall

Case name: Defries v. American School Bus Co, LLC, 20 IWCC 0465.

Ruling:  The Commission held that a school bus driver’s average weekly wage should not be based on a 40- hour work week but rather should be calculated based on total earnings divided by the number of weeks in which there were earnings.

What it means: Where the claimant is hired as a part time seasonal employee with a guarantee of 20 hours per week, her average weekly wage calculation should be based on total earnings divided by the number of weeks in which there were earnings. The calculation should not be based on a 40- hour week regardless of the claimant being ready and willing to work 40 hours per week.

Summary: On Oct. 10, 2018, the claimant injured her right shoulder while performing her duties as a school bus driver. Petitioner drove two routes in the morning (taking the children to school) and two routes in the afternoon (taking the kids home from school) approximately a week before October 10, 2018. Prior to that time, Petitioner only drove one route in the morning and one route in the afternoon. Petitioner eventually was diagnosed with a rotator cuff injury. The Respondents witness, Timothy Poole, testified that Petitioner’s schedule changed October 5, 2018 from one route in the morning and one route in the afternoon to two routes in the morning and two routes in the afternoon. The claimant testified that she was not provided 40 hours of work each week, but was ready, willing and able to work 40 hours every week if assigned. She earned $16.25 an hour. In calculating the claimant’s average weekly wage, the arbitrator divided the claimant’s gross earnings for the 52 weeks preceding the injury, $18,753.39, by $16.25 to find she worked 1,154.05 hours during this year. The 1,154.05 hours was divided by 40 hours a week to arrive at 28.85 actual weeks worked by the weeks, equals $650.03 as the claimant’s average weekly wage.

The arbitrator noted this was the second method of calculating average weekly wage set forth in Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 756 N.E 2d 822 (2011).  This method of calculating AWW was delineated by the Illinois Supreme Court in Sylvester v. Industrial Commission. Using this method, if any employee loses 5 or more calendar days in a work year, whether or not the days are in the same work week, the employee’s earnings are not divided by 52 weeks but by “…the number of weeks and parts thereof…. “ In this case the Petitioner lost well over 5 days of work in the year as her wage statement shows. The AWW calculation of $650.03 is correct pursuant to Sylvester. The Arbitrator found that Petitioner’s gross earnings for the 52 weeks preceding the injury were $18.753.39 and her AWW was $650.03 This method is used if an employee loses five or more calendar days in a work year. Here, the claimant lost well over five days of work in the year. On appeal, the employer argued that the arbitrator’s calculation was incorrect because the claimant worked for another employer during the “time lost” period- the summer of 2018.

The employer argued that the claimant worked 46 of the 52 weeks at issue and the proper calculation is to divide $18,753.39 by 46 weeks, resulting in an average weekly wage of $407.68.

The underlying dispute is whether “time lost” under the Act is to be measured in this case by a 40-hour work week. The Petitioner was hired as a part time seasonal employee with a 20-hour guarantee for route pay.

Upon review, the Commission modified the average weekly wage calculation. The Commission explained that although the claimant testified she was ready and willing to work 40 hours per week, she was hired as a part-time seasonal employee with a guarantee of 20 hours per week. In general, for a part time employee, the average weekly wage calculation is based on the total earnings divided by the number of weeks in which there were earnings. Accordingly, the Commission reduced the average weekly wage to $407.68 as calculated by the employer. Furthermore, Illinois case law provides that a windfall should be avoided in calculating the average weekly wage. In this case, the claimant, working a 20-hour week at $16.25, would be expected to make $325 per week. The arbitrator’s award effectively doubled that amount.

Regarding the issue of temporary disability in this case, the Commission affirmed the award, but modified the amount to reflect the Commission’s recalculation of the average weekly wage, finding that the AWW is $650.03, the Petitioner’s gross earnings for the 52 weeks preceding the injury were $18,753.39.

More case law summaries available for download.

Permanent Disability Benefits- PTD- Symptoms from wrist fracture, CRPS support PTD determination

Case name: Clark v. Illinois State of Elgin Mental Health Center, 20 IWCC 0449.


Permanent Disability- Permanent Total Disability- Claimant’s head injury merits award of PTD benefits

Case name: Olson v. McKesson Corp., 20 IWCC 0486.


Medical & Rehabilitation Benefits- Further Benefits- Claimant secures shoulder surgery for torn rotator cuff

Case name: Pinales v. Koch Foods, 20 IWCC 0456.


Benefit Payment Procedures- Unreasonable & Vexatious Conduct- Employers denial of benefits without explanation warrants section 19(k) benefits

Case name: Meyer v. Jewel Food Stores, 20 IWCC 0451.


Benefit Payment Procedures- Delays- Employer escapes penalties, fees for erroneously terminating benefits

Case name: Malloy v. Synergy Co. d/b/a Nuance Solutions, 20 IWCC 0446.


Authority of Arbitrator- Award Adjudication- Claimant secures resolution of issues despite pending section 8(a) petition

Case name: Barickello v. Engler, Meier & Justus Inc., 20 IWCC 0452.


Employer/Employee Categories- Contractors- Evidence points to independent contractor relationship between claimant, horse stable

Case name: Gutierrez v. Hondo Ranch d/b/a FJK Enterprises, 20 IWCC 0387.


Arising out of Employment- Unexplained Accidents- WCA doesn’t cover nurse’s wipeout while descending staircase at work

Case name: Mbuthia v. Shapiro Developmental Center, 20 IWCC 0383.


Course of Employment- Work-Related Travel- Claimant wins benefits for fall after misjudging steps

Case name: Sims v. South Berwyn School District No. 100, 20 IWCC 0412.


Causal Relationship- Quantum of Proof-Treating doctor provides convincing testimony of causal connection

Case name: Madrigal v. Chicago Meat Authority, 20 IWCC 0391.


Causal Relationship- Conditions Aging Process- Claimant fails to connect work accident to current knee condition

Case name: Buffkins v. Bi-state Development/Metro , 20 IWCC 0398.


Temporary Disability Benefits- Temporary Total Disability- Claimant secures TTD after employer denies approval for recommended evaluation

Case name: American Coal Co. v. IWCC, 2020 IL App (5th) 190522WC; Motion to publish granted 11/16/20.


Temporary Disability Benefits- Temporary Total Disability- Owner of business secures TTD despite occasionally performing work duties

Case name: Musselman v. Shelter Builders, 20 IWCC 0396.


Permanent Disability Benefits- Permanent Partial Disability- Police officer’s career-ending ankle injury warrants 40% PPD award

Case name: Peoria, City of v. IWCC, Unpublished Rule 23 Decision; 2020 IL App (3rd) 190746WC-U. Case can be cited as precedential beginning January 1, 2021.


Permanent Disability Benefits- Permanent Partial Disability- Claimant’s age, medical evidence support increase in PPD award

Case name: Evans v. Chicago, City of, 20 IWCC 0413.


Medical & Rehabilitation Benefits- Maintenance Benefits- Claimant wins maintenance despite employer’s challenge to his job search

Case name: Heinz v. Combs d/b/a Tec Builders, 20 IWCC 0401.


Authority of Commission- Jurisdiction- Claimant fails to rescind arbitrator’s approval of settlement contract

Case name: Rojas v. Northwest Community Hospital, 20 IWCC 0405.

Download a copy of the November case summaries.

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