2002 summary of cases regarding Illinois workers compensation law.

Section 19(f) Recall Proper to Amend Penalties when Miscalculated under McMahan
Bunnow v. Industrial Comm'n
1st Dist., 24 January 2002, 1-00-3895WC

On review the Industrial Commission issued an award including penalties. The following day the Illinois Supreme Court issued the McMahon decision allowing penalties for vexatious non-payment of medical expenses. Before the Commission issued its decision, claimant filed a petition for reconsideration under McMahon. The Commission's decision awarded penalties but not for the non-payment of medical expenses. Claimant then filed an amended motion to reconsider and a petition under section 19(f) moving for the correction of a clerical error. The appellate court ruled that a motion to reconsider is not a procedure allowed by the Act. However, section 19(f) filings are allowed, even at the Commission level. Since McMahon required penalties to be calculated as (TTD benefits + medical expenses) * 0.5, the motion under section 19(f) was proper. The appellate court remanded the case with instructions to recalculate the penalties with the medical expenses included in the calculation.

Workers' Compensation Lien Attached to Wrongful Death Settlement thus Eliminating an Award Under the Act
Padgett v. Industrial Comm'n
1st Dist., 24 January 2002, 1-01-0149WC

Claimant was a child of the deceased injured worker and was a beneficiary in a civil case against a hospital which allegedly caused the death of the injured worker while receiving treatment for work related injuries. The arbitrator found that the civil settlement was subject to the employer's workers' compensation lien under section 5(b) and amounted to more than claimant's potential recovery under the Act. Respondent was entitled to a credit against the amount of its liability to claimant up to the full amount of the civil settlement. Thus, claimant was precluded from recovery under the Illinois Workers' Compensation Act. The appellate court affirmed.

Fall on Ice in Parking Lot Compensable when it Occurred During Tasks of Employment
Homerding v. Industrial Comm'n
1st Dist., 21 February 2002, 1011175WC

Claimant slipped and fell in the rear of an icy parking lot of a strip mall while making a second trip to her car to retrieve tools of her trade as a beauty operator. The employer did not own or maintain the parking lot. The arbitrator found the case compensable, awarded benefits and penalties. The Industrial Commission reversed the arbitrator and found the case not compensable. The appellate court reversed the Industrial Commission and held the case compensable. It focused on the fact that at the time of the accident claimant had already begun her workday and was injured while performing a task that advanced employer's interests. The trip to the car also allowed her to carry out her usual employment duties.

Vocational Rehabilitation Benefits May Not be Awarded Under Section 19(b-1)
Mobile Oil Corporation v. Industrial Comm'n
3rd Dist., March 2002, 3-00-0931WC

Claimant filed a 19(b-1) petition for TTD and medical benefits. He also sought vocational rehabilitation benefits. The Arbitrator awarded, TTD, medical expenses and awarded vocational rehabilitation expenses and maintenance even though he had been released to return to work. The Industrial Commission affirmed. The appellate court held that vocational rehabilitation benefits and maintenance may not be awarded as relief in a hearing conducted pursuant to section 19(b-1) of the Act.

Aggravation of Degenerative Condition Not Compensable
Sisbro, Inc. v. Industrial Comm'n
4th Dist., 8 February 2002, 4-01-0007 WC

Claimant sought benefits for a degenerative condition in his right foot. He twisted his right ankle in a pothole while delivering dairy products for Sisbro. The Industrial Commission found the case compensable and awarded benefits. The appellate court reversed the Commission. It held that claimant was not entitled to compensation, regardless of whether his condition of ill-being was caused by a work-related aggravation of a preexisting condition, if his physical condition was so deteriorated that his condition of ill-being could have been produced by normal daily activity. The court acknowledged that claimant's condition (Charcot arthropathy) was caused by the work injury but denied compensation because any activity could have caused the condition given his preexisting diabetic neuropathy.

Aggravation of Pre-existing Hypertension Compensable under "Mental-Physical" Analysis
City of Springfield v. Industrial Comm'n
7th Dist, 25 February 2002, 4-00-0563WC

Claimant was assigned to duties as a detective investigating criminal activities by juvenile offenders, interviewing suspects and victims of crime, and making arrests, including drug arrests at crack houses. He investigated gang activity and his life had been threatened many times. He was diagnosed with hypertension in the early 1990. His treating physician opined that the claimant's hypertension had been exacerbated by his stressful job duties and that his hypertension was uncontrollable in his workplace. He further opined that the claimant was disabled from his job and that continued work in law enforcement would be detrimental to the claimant's health. The arbitrator denied benefits and the Industrial Commission reversed. The appellate court affirmed the Industrial Commission. It rejected respondent's argument that the case had to be analyzed under either a "mental-mental" theory or the "physical-mental" theory. The court held that claimant was not seeking compensation for psychological injuries so a "mental-physical" analysis was appropriate. Claimant must prove only that some act of employment was a causative factor, not the sole, or even the principal causative factor. The case was compensable since it was uncontroverted that the claimant's job-related stress aggravated his pre-existing hypertension (a physical condition) to the point where the claimant could no longer engage in police work without endangering his health.

Widows Claim Denied when Decedent Corporate Officer Elected to Exclude Self from Coverage
D. Mayer Landscaping v. Industrial Comm'n
1st Dist., 7 March 2002, 1011004WC

Claimant was the widow of a corporate officer of killed while working in his own landscaping business. Decedent previously elected to exclude himself from coverage under the Act. The court rejected the widow's claim that decedent was acting in a dual capacity when he was killed. It also rejected the widow's claim that her right to sue under the Act was independent and therefore not dependent on the decedents' election to exclude himself under the policy of insurance. Thus, benefits were denied.

Penalties Proper on Non-Payment of PPD Award when only Medical Bills Disputed on Review
Zitka v. Industrial Comm'n
1st Dist., 14 March 2002, 1-01-0955WC

The arbitrator awarded 73 3/7 weeks TTD and 45% man as a whole plus all medical bills submitted by claimant. Respondent filed a timely petition for review of the case but challenged only the medical award. The Industrial Commission revised the medical award and remanded the case to the arbitrator for further testimony on the issue. Shortly prior to the Commission's decision was issued, claimant filed a petition for penalties under sections 19(k) and 19(l). Respondent paid the PPD and TTD award shortly after receiving the Commission's decision. At the hearing on the petition for penalties, the Commission awarded penalties against the respondent for failing to pay the PPD and TTD awards in a timely fashion. The penalties amounted to $32,791 under 19(k) and $6,558 under 19(l). The appellate court affirmed finding that respondent had waived any challenge to the PPD and TTD awards, thus the awards were payable immediately. Failure to pay these awards supported penalties even though the medical benefit aspect of the case was on review.

Pertillo Doctrine Applies to Workers' Compensation Cases and Precludes Exparte Communications with Claimants Health Care Providers
Hydraulics v. Industrial Comm'n
2nd Dist., 4 April 2002

Counsel for respondent sent a videotape and a job description to claimant's treating physician and asked whether the evidence changed his mind as to causation. The doctor clarified his opinion by stating that no causal connection existed between the injury and the work activities. The arbitrator excluded the testimony as a violation of the Petrillo Doctrine which precludes ex-parte communications with health care providers as a violation of the physician patient privilege. The Industrial Commission affirmed as did the appellate court. It held that Petrillo applies to worker's compensation cases. The court noted that workers' compensation practice, while not subject to discovery procedures as provided under the Code of Civil Procedure, nonetheless has analogous avenues for securing information from treating physicians. It state that every competent, non-ex-parte method of acquiring medical information referenced in Petrillo as a basis for barring ex-parte contact, including subpoenas, release of relevant records, interrogatories, oral depositions, and live testimony, can be found in an analogous form within the Workers' Compensation Act.

McMahan v. Industrial Comm'n Applies Retroactively
American Airlines v. Industrial Comm'n
1st Dist., 14 February 2002, 1001545WC

The appellate court held that McMahan v. Industrial Comm'n 183 Ill. 2d 499 (1998) allowing penalties for non-payment of medical expenses applies retroactively.

Mental Stress Causally Related to Gastrointestinal Illness
Baggett v. Industrial Comm'n
Supreme Court, 15 March 2002, Docket No. 90385

The Illinois Supreme Court reversed the Industrial Commission, holding that it applied the wrong legal standard to a "mental-physical" claim. Claimant, a high school industrial arts teacher for the Marion school district (District), collapsed at work from gastrointestinal tract bleeding which led to a myocardial infarction, cardiac arrest, and resulting anoxic brain damage, rendering him permanently and totally disabled. Claimant alleged that the mental stress from his job was a causative factor in the development of the peptic ulcer that led to his disability. The arbitrator awarded benefits but the Industrial Commission held that petitioner failed to prove that he had an accident under the Act because there was no evidence that he was subject to more stress than hi co-workers and that there was no unusual job stress at the time of his collapse. The appellate court affirmed the Industrial Commission. The Supreme Court reviewed the case de novo, finding that the Industrial Commission and appellate court applied improper legal standards. It held that claimant need only prove that some act or phase of the employment was a causative factor of the resulting injury. Moreover, claimant need only prove that the usual job stress is greater than those facing the general public. He is not required to prove that the job stress is greater than that of coworkers or that unusual levels of stress existed at the time of injury. The court found that claimant's job as a school teacher subjected him to stress greater than the general public and that the work stress was a causative factor in the aggravation of his ulcer which led to his disablement. The arbitrator's award of permanent total disability was reinstated.

Decision of Improperly Constituted Commission Panel is Null and Voids
Daniels v. Industrial Comm'n
Supreme Court, 23 May 2002, Docket No. 90318

The Commission's appointment of two arbitrators to fill vacancies on panel "B" was beyond the statutory authority of the Commission because it was up to the Governor to appointment replacements. Thus, the decision of the commission was null and void. The case was remanded to the Commission for another hearing.

Failure to Award Wage Differential not Against Manifest Weight of Evidence
Pietrzak v. Industrial Comm'n
1st Dist., 18 April 2002. 1-01-2006WC

The appellate court affirmed the Commission's permanency award rather than a wage differential when evidence of a labor market survey supported the existence of jobs within claimant's restrictions at or near his prior wage level. The fact that claimant selected a job earning substantially less the his pre-injury earnings was not sufficient to require a wage differential award.

Commission Lacked Subject Matter Jurisdiction where City of Chicago Passed Ordinance Precluding Recovery by Police Officers and Firefighters under the Act
Jones v. Industrial Commission
3rd Dist., 15 May 2002

Claimant police officers and firefighters were precluded from seeking benefits under the Act because the City of Chicago passed an ordinance providing for medical care and precluding recovery under the Illinois Workers' Compensation Act. The fact that the City stipulated to jurisdiction during trial had no impact on the Commission's subject matter jurisdiction because it cannot be waived, stipulated to or consented to by the parties. Further, subject matter jurisdiction may be raised at any time and may be raised sua sponte if necessary.

Retroactive Pay Raise Included in Average Weekly Wage Calculation
City of Chicago v. Industrial Comm'n
1st Dist., 23 May 2002 1-01-2959WC

The arbitrator awarded permanent total benefits based on an AWW of $670.82, excluding a retroactive pay raise because the raise was not in effect at the time of the injury. The Commission reversed the arbitrator and included the pay raise, increasing the AWW to $698.83. The appellate court affirmed the Commission, finding that section 10 of the Act required inclusion of the retroactive pay raise because it was remuneration for work he completed during the relevant 52-week period prior to the injury.

Credit Allowed for prior Settlement in Iowa under Section 8(e)
Keil v. Industrial Comm'n
3rd Dist., 12 June 2002, 3-01-0166WC

Claimant received an award of 50% of a leg but the arbitrator refused to give credit for a prior settlement in Iowa for 17.5% or the same leg. The Commission applied the credit in whole. The appellate court held that the statue does not restrict such credits to Illinois claims and affirmed the Commission's application of the credit. The manner in which the credit is to be determined is a factual matter for the Commission.

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