a n i l i n o i s l f i heyl royster workers’ …...a n i l l i n o i s l a w f i r ma newsletter...
TRANSCRIPT
A n I l l I n o I s l A w F I r m
A Newsletter for Employers and Claims Professionals
Heyl RoysteRWoRkeRs’ Compensation
neWsletteRSpring 2008
In This Issue
• IllinoisWorkers’ Compensation CommissionReversesControversialHemorrhoidDecision
• PreparingYourClaimforAdministrativeReviewFollwingaCommissionRuling
• Workers’CompensationCaseSummaries
Bruce L. BondsChair, WC Practice Group
A word From thePrActIce GrouP chAIr
Can it be that Spring is finally here? Spring means golf, cookouts, yard work and . . . . the annual Heyl Royster Bloomington Seminar! Please mark your calendarforThursday,May 15,andplantobewithus at the Doubletree Hotel in Bloomington, Illinois, at 1:00 p.m. This year the Heyl Royster Work Comp Team will answer the question, “Should Your Claim Be Tried?” Topics will include an assessment of recent appellateandIllinoisWorkers’CompensationCom-missionreviewingpaneltrends,howtonavigatethetriplethreatof19(k),19(l),andSection16penaltiesand attorneys fees, and an in-depth discussion of uti-lizationreview,whatitisandwhenitshouldbeused,featuring a CorVel utilization nurse, Tara Kerz, and myself. Of course, we will also bring you up to date onwhatisnewattheIllinoisWorkers’CompensationCommission,aswellasthelatestonthesearchforanew chairman. As you have no doubt heard by now, ChairmanRuthwillbesteppingdownnolaterthanthefall of 2008. Invitations have been mailed so please join us! You can register for the seminar at www.heylnewsletters.com.
While we hope all of you can attend our annual seminar, we realize it is not possible for many of you to attend. Whether you can attend or not, if you would like an “in-house” seminar targeted to a topic of spe-cific concern, our practice group would be happy to visit you at your place of business.
Inthis,ourSpring2008Workers’CompensationNewsletter,CraigYoungaddressestherecentrever-sal of a controversial decision awarding benefits for hemorrhoids. Brad Elward, our appellate specialist, outlines the steps necessary to prepare a claim for
administrativereviewintothecircuitcourtandhowtonavigate the dangerous shoals of filing an appeal bond. Finally, Jim Voelker provides an extensive update on recentdecisionsoftheIllinoisWorkers’CompensationCommission andAppellate Court, Industrial Com-missiondivision,includingafewgooddecisionsforemployers on the exclusion of overtime from average weekly wage, the denial of a repetitive trauma case basedonlackofnotice,andthereversalofanoddlotpermanent total decision.
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IllInoIs workers’ comPensAtIon commIssIon reverses controversIAl hemorrhoId decIsIonBy Craig S. Young, Peoria [email protected]
Our office recently handled the case of Baird v. Penn Landscaping, 06 IL.W.C. 33317, 08 I.W.C.C. 0009, 2008 WL 458753, Jan. 3, 2008. The case was unusual in that the claimed injury was hemorrhoids. One might imagine the ribbing I took after losing this case at arbitration. All joking aside, the decision finding compensability by the arbitrator, and the Illi-noisWorkers’CompensationCommission’sultimatereversalofthatdecision,presentsinterestinglessonsregardingthecurrentstateoftheCommissionaswellas proper claims handling practices.
The petitioner in this case claimed he developed hemorrhoidsfromliftingandplacinglandscapingmatsas a result of his work with a landscaping company. This activity involved carrying mats from a trailer to a work area, then affixing the mats with staples. All witnesseswere inagreement that thematsweighedabout 50 pounds.
Although there was disputed evidence as to exactly how often the petitioner had experienced hemorrhoids prior to this incident, itwasundisputed thathehadproblems with hemorrhoids off and on both beforeand after the alleged accident. The petitioner’s treating physician rendered a written opinion that there was a definite relationship between the petitioner’s work and his symptoms. The doctor, at the time of his treatment, also believed the petitioner needed surgery to treat his hemorrhoids.
The respondent obtained an IME opinion from Dr. David Fletcher. He offered a detailed opinion as to causation with regard to hemorrhoids and testified that the exact cause of hemorrhoids is controversial. Headmittedthatliftingorvigorousstrainingcouldbeanaggravatingcauseofhemorrhoids,butinorderforthattooccur,thereneededtobevigorousliftingandstrainingknownasavalsalvamaneuver,inwhicha
person is continuously bearing down. Based upon the fact this activity was not described as part of the work, and also upon the fact the petitioner had a history of his hemorrhoidal problems waxing and waning, Dr. Fletcher rendered the opinion that the hemorrhoidswere not caused by the work injury.
Some of the most striking testimony came from the petitioner at trial. The petitioner admitted his hem-orrhoid problems had waxed and waned throughout thecourseofhislife,andfurtheradmittedthatasofthe time of trial he did not have any hemorrhoidal symptoms. He further testified that the only reason he had not returned to work is that his treater hadrecommended surgery at the time of his last outbreak, and he “was not going to take this condition to a new employer.”
The case was tried on a 19(b) petition. Based upontheevidence,thearbitratorfoundaccidentandcausation, awarded 49 weeks of TTD covering the period from the claimed injury through the date of trial, $647.00 in outstanding medical bills, and pro-spectively awarded the surgery recommended by the treating physician. As disappointing as the decision wasontheissuesofaccidentandcausation,therealdilemma was presented by the fact the decision left no option for the case to be closed. Without a condition of hemorrhoidspresentasofthetimeoftrial,therewasno treatment which could take place, and certainly no surgical procedure could ensue. Theoretically, the respondent could remain responsible for TTD on an ongoingbasis,untilthepetitionermightsufferanad-ditional hemorrhoidal episode andproceed forwardwith the surgical treatment.
The case was reviewed, and the Illinois Workers’ CompensationCommission(inatwo-to-onedecision)reversed. It is important to note the Illinois Workers’ CompensationCommissionrelieduponboththemedi-cal opinions of Dr. Fletcher as well as the history of the pre-existing hemorrhoidal condition presented by the respondent at trial. At trial, our office focused heavily on the medical records, which identified a pre-exist-ing condition. We also presented testimony from the respondent, which identified that the petitioner had reported a hemorrhoidal problem in the two-week
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period prior to the claimed injury. Based upon this evidence,theCommissionfoundthepetitionerfailedtoproveacausalrelationshipbetweentheallegedac-cident and his hemorrhoid condition.
There are at least two interesting issues identified by this unusual case. First, the arbitrator’s decision identifies the ongoing difficult trend we see with the current Commission. One can never take any case lightly, as certain arbitrators and commissioners can literally find anything compensable. On a positive note,thedecisionoftheIllinoisWorkers’Compensa-tion Commission “may” identify a favorable trend. In recent years, we have become accustomed to winning cases at arbitration, only to have the Illinois Workers’ CompensationCommissionrendertheirowninterpre-tation of the evidence and reverse. This case was just the opposite. In a lengthy decision, the Illinois Work-ers’ Compensation Commission carefully reviewed the compelling evidence in the case, and specifically reversed the findings of the arbitrator. In so doing, the Commission used language which virtually appeal-proofed its decision. While one case certainly cannot identify a trend, the time and attention taken by the IllinoisWorkers’CompensationCommissiontocitethe evidence to support its decision is encouraging.
The other important lesson from this case is that in today’s environment, every case, even one involving hemorrhoids, must be taken seriously. It would have been easy to dismiss a case involving hemorrhoids as insignificant. In this case, we had a very detailed IME conducted by a credible and competent IME physician. Our doctor’s opinions were based upon medical sci-ence,andweremuchmoredetailedthantheopinionsoffered by the treater. This gave us a strong basis for argumentbeforetheIllinoisWorkers’CompensationCommission, and the Commission followed thatmedical analysis. We also offered at trial witness testimony to support the medical records regarding the petitioner’s pre-existing hemorrhoidal condition. While the medical records themselves identified a pre-existing problem, it was testimony from the respondent which raised a question as to whether the petitioner hadsufferedfromhemorrhoidsinthetwoweekspriorto the alleged accident. This testimony also was found
to be important by the Illinois Workers’ Compensation Commission.
The case demonstrates the fact that no case in today’s environment can be taken lightly. Had the arbitrator’s decision been followed, the case couldhave ultimately presented significant ongoing TTD and medical exposure. Thus, this case also shows that it is not necessary to accept and pay questionable cases out of fear that the Commission will find everything compensable. Because the respondent took the time todevelopandpresentcredibleevidencetosupportitscase,andbecauseadecisionwasmadetoarguethecase aggressively at the Commission level, a favorable result was obtained.
PrePArInG Your clAIm For AdmInIstrAtIve revIew FollowInG A commIssIon rulInGBy Brad A. Elward, Peoria [email protected]
A workers’ compensation appeal officially com-mencesassoonastheCommissionissuesitsopinionand decision on review. Upon receipt of the Commis-sion’s decision, the appealing party has 20 days within which to perfect its review. 820 ILCS 305/19(f)(1). Perfecting a judicial review requires counsel to file an assortment of court papers, including a writtenrequest to commence proceedings, proof of payment tothecommissionoftheprobablecostoftherecord,summons, and a surety bond. Unilever Best Foods North America v. Illinois Workers’ Compensation Comm’n, 374 Ill. App. 3d 314, 870 N.E.2d 1000 (1st Dist. 2007). The latter must be signed by the employer, as the party against whom the award was entered, and supported by a surety. Deichmueller Const. Co. v. Industrial Comm’n, 151 Ill. 2d 413, 603 N.E.2d 516 (1992). All sureties must be approved by the State of Illinois. 820 ILCS 305/19(f)(1)(2). In some counties, the surety must have a certificate of approval on file locally; in others, such as Cook and DuPage County,
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only certain pre-approved agents may sign the bond on behalf of the surety.
Given these filing requirements and the shortened timeframeforperfectingajudicialreview,itiscriticalthatcertainmattersconcerningtheappealbeconsid-eredassoonasthecaseisarguedbeforetheCommis-sion. Early consideration of these issues will save time later and make it easier for counsel to obtain the surety bond and file the documents in a timely manner.
The Decision to AppealThe first and most important question is whether
you intend to file a review from an adverse Commis-sion decision. While this may seem like a forgone conclusion, the decision to appeal should be madeon a complete analysis of the likely appellate issues and the standard of review applicable to those issues. As you reach the Commission stage of the litigation, the issues of the case are already apparent – accident, arising out of, in the course of, average weekly wage, and permanency, to name a few. These issues, or at least a portion of them, will likely continue through the remainder of the appeal. The strength of these is-sues must be assessed in order to put your best foot forward during the appellate review.
The Standards of ReviewThe three standards of review are: manifest weight
of the evidence, abuse of discretion, and de novo. The most common standard is manifest weight of the evidence, which asks whether an opposite result isclearly apparent. Certified Testing v. Illinois Workers’ Compensation Comm’n, 367 Ill. App. 3d 938, 856 N.E.2d 602 (4th Dist. 2006). This standard applies to fact issues and questions of credibility, and deference is given to the Commission’s conclusions and findings.
Anabuseofdiscretionoccurswhenno reason-able person would adopt the view taken by the lower tribunal. Certified Testing v. Illinois Workers’ Com-pensation Comm’n, 367 Ill. App. 3d 938, 856 N.E.2d 602 (4th Dist. 2006). It applies to discretionary mat-ters addressed by the arbitrator or Commission, such as whether leave to refile after dismissal should have
been granted, or evidentiary matters. This standard is difficult and rarely results in reversal.
The final standard, de novo,isperhapstherarest,and applies to questions of law. City of Chicago v. Il-linois Workers’ Compensation Comm’n, 373 Ill. App. 3d 1080, 871 N.E.2d 765 (1st Dist. 2007). Under the de novostandard,thecircuitcourtandappellatecourtarefreetodecidetheissueanewandthereisnodefer-ence afforded to the Commission. Such issues might include interpretation of a particular statutory section, such as section 10’s average weekly wage or who can sign an appeal bond on behalf of an employer.
The standard of review should be the ultimate guide to whether a given case, or issue, should be appealed. Once a case is argued before the Commission, counsel fully understands the nature of the issues presented and where the case is likely to go. Thus, the potential issuesforappealcanbediscussedandpre-evaluatedsothatoncetheCommission’sdecisionisrendered,any remaining issues can be quickly discussed and resolved. Making decisions whether or not to appeal basedonapplicationof thestandardof reviewwillresult in more informed and better decisions. We have all had cases where the decision baffles us, or where weknow,butjustcannotprove,thatthepetitioner’sinjury was not work-related or that the petitioner is exaggerating or working elsewhere. Naturally, such situations frustrate us. However, focusing our efforts ontheissuespresentedandthecontrollingstandardofreviewwillhelpensurethebestdecisionconcerningwhether to appeal.
The Surety Bond If an appeal is chosen, the second question con-
cerns the surety bond. As noted above, the surety bond is jurisdictional and must be filed within the 20-day period following receipt of the Commission decision. Freedom Graphics Sys., Inc. v. Industrial Comm’n, 345 Ill. App. 3d 716, 802 N.E.2d 1262 (1st Dist. 2003). This aspect of the appeal is undoubtedly themostproblematic,andpresentsthemostpotentialfor danger, as an error with the surety bond can result in dismissal of the appeal for lack of jurisdiction. As
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noted earlier, section 19(f)(1) of the Act requires that a surety bond be filed by the party against whom the award was rendered – the non-municipal employer. Typical questions that arise here are: (1) Who can sign the appeal bond for the employer? (2) What happens if my employer has gone out of business or is now bankrupt? (3) If the employer is out of business, has the business been purchased by another entity and who retained the liabilities?
Who can sign the appeal bond for the employer?A quick call to the employer at the completion of
theCommissionoralargumentcanprovideadditionaltime to locate the appropriate individualwithin thecorporation who can sign the surety bond. The bond shouldindicatethefullnameandtitleoftheindividualsigning the bond. Appropriate individuals include the company officers, owner (if a sole proprietorship), or directors. We have also used high-level managers, who have the authority to bind the company from a claim perspective. In any event, the individual selected must be someone who can bind the company or corporation financially.
What happens if my employer has gone out of business or is now bankrupt?
A significant problem case arise where the em-ployer has gone out of business or is bankrupt. In the former scenario, the employer must be located and convincedthatheorsheneedstosignthebondeventhough the business is no longer a going concern. In the latter, you may have to work with bankruptcy coun-sel, which can be time-consuming. Another related question is, if the employer is out of business, has the business been purchased by another entity and who retained the liabilities? In many cases, the employer sold only the assets and good will, and retained the liabilities. In that event, the new employer entity can-not(andwillnot)signthebond,andtheformerownermust be tracked down. This can prove difficult in some cases, especially where there is ill-will between the two owners,ortheformerownerhasretiredandmovedaway. In a worst-case scenario of which we are aware,
an employer sold his business and essentially “went underground”. The current owners contended they did not know how to reach the former owner, who legally retained the liabilities. Facing the expiration of the 20-day period with no employer, we recommended thattheinsurancecarriersignthebondsinceitwascontractually responsible for the award. We procured an independent surety bond for the insurer, the appeal was filed and progressed through oral arguments, with no one raising an issue concerning the sufficiency of the bond.
The SuretyThe surety is also of concern. Here, there are a
number of options, although these may be altered by theparticularfactsorthejurisdictionwherethecircuitcourt review is pending. The safest option is to pur-chase an independent surety bond from a surety such as Old Republic or The Hartford, which are widely rec-ognized throughout the State. Bonds typically cost ap-proximately $20 per $1,000 of award, and are capped at $75,000.00. Thus, a $58,000 surety bond would run about $1,160. Surety bonds are purchased on an annual basis and must be renewed each year, usually at the same price, and must be released by the circuit court via motion at the conclusion of the appeal.
Anotheroptionistohavetheworkers’compensa-tion insurance carrier sign the bond as a surety. Here, the sole caveat is whether the carrier is approved by the State of Illinois. An insurance carrier’s status can be readily checked by consulting the current version of the Illinois Department of Financial and Profes-sional Regulation, Division of Insurance, Summary of Annual Statements. Most venues accept a surety bond signed by the workers’ compensation carrier. The benefit here is obvious - a surety signed by the carrier orobtainedthroughadifferentdivisionofthecarriercosts less or nothing at all.
There has been some litigation recently concern-ing uninsured employers who cannot afford a surety bond or situations where a surety will not issue a bond. In those cases, the employers’ appeals have typically
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been dismissed for failure to comply with the strict language of section 19(f)(1).
ConclusionAsthisshortoverviewshows,preparingforthe
judicialrevieworappealbeginsassoonasthecaseisargued before the Commission. Given the short time constraints within which to perfect a circuit courtreview – 20 days from receipt of the Commission’s decision – it is clear that certain issues must be ad-dressed early or at least discussed so that the decision of whether to appeal can be made in short order.
workers’ comPensAtIon cAse summArIesBy James M. Voelker, Peoria [email protected]
N o t i c e S u f f i c i e n t B e c a u s e Respondent could Have Inferred Work Injury
S & H Floor Covering, Inc. v. Illinois Workers’ Compensation Comm’n, 373 Ill. App. 3d 259, 870 N.E.2d 821 (4th Dist. 2007) – The petitioner worked as a flooring installer for S & H Flooring and filed a repetitive trauma claim for an injury to his right knee. The testimony showed that the petitioner last worked for the employer on August 2, 2002. After that day of work, he drove to Wichita, Kansas to install a floor at a relative’s home. Upon arriving in Wichita, he testified he was barely able to walk because of pain in his right knee. The petitioner told Craig Jones, a foreman for co-respondentCushingCommercialCarpets,thatheinjured his knee while working on a job for a relative. The project manager for S & H Flooring testified that hespokewiththepetitionerbeforeheleftonAugust12 and no injury was mentioned. The petitioner ap-peared normal and did not limp. The project manager subsequently spoke with the petitioner’s wife who told himthatthepetitionerinjuredhimselfwhileinstall-ing a floor at a relative’s home. The arbitrator denied
benefits but the Illinois Workers’ Compensation Com-mission reversed.
S & H Flooring filed an appeal claiming that the petitioner failed togivepropernotice and failed toprove that he sustained an accidental injury that arose out of and in the course of his employment with S & H Flooring. As to notice, the court stated that the employer was put on notice that the petitioner injured himselfatworkandcouldhaveinferredthatitwasawork-related injury. With respect to whether the peti-tionerprovedthathehadsustainedaccidentalinjuriesthat arose out of the course of his employment, the appellatecourtreliedonthemanifestweightstandard,finding that there was sufficient evidence in the record to support the Commission’s decision and findings regarding the credibility of the witnesses. The court concluded by stating that although not appropriate in this case it would consider giving “an extra degree of scrutiny” to the Commission’s decision where the Commission makes credibility determinations regard-less of the arbitrator’s findings.
Federal Preemption Rejected for Land-Based Injury in “Twilight Zone” Permanent Total Award Upheld
Federal Marine Terminals, Inc. v. Illinois Workers’ Compensation Comm’n, 371 Ill. App. 3d 1117, 864 N.E.2d 838 (1st Dist. 2007) – Petitioner, a longshore-man,fellinaland-basedwarehouseinjuringhisknee,shoulders, left hand and back in March of 1999. He underwent knee surgery in July of 1999 and was re-leased to work. He continued to complain of hand and back pain and eventually underwent a cervical fusion and lumbar laminectomy. The treating surgeons related the back surgery to his work injury and released him toworkasawarehousecheckerwithrestrictionsofno climbing or transporting injured workers. He was essentially restricted to administrative duties. The respondent’s vocational expert testified that the peti-tionercouldnotreturntoworkforrespondentduetotherestrictions,butthattherewasastablelabormarketwith positions that fit his restrictions. The petitioner’s vocational expert testified that there was no stable labor
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marketforthepetitionerandthathecouldnotperformthe jobs outlined by respondent’s vocational expert. The arbitrator and Illinois Workers’ Compensation Commission found that the petitioner was permanently and totally disabled. The respondent appealed arguing that the permanent total award was not supported by the evidence and that the claim was preempted by the Federal Longshoreman and Harbor Workers’ Act. The appellatecourtheldthatthefederalandstatecourtshaveconcurrentjurisdictionoverland-basedinjuriesthat fall within the coverage of the federal act. Thus, respondent’s motion to dismiss was properly denied. It also affirmed the Commission’s finding of permanent and total disability deferring to the Commission’s reli-ance on the petitioner’s vocational expert and rejecting the respondent’s vocational expert.
Overtime Wages Excluded from Average Weekly Wage Calculation if Overtime Is Voluntary
Airborne Exp., Inc. v. Illinois Workers’ Compen-sation Comm’n, 372 Ill. App. 3d 549, 865 N.E.2d 979 (1st Dist. 2007) – The Commission awarded benefits and included overtime in the calculation of the petitioner’s average weekly wage. The respondent appealed contending that the average weekly wage should not have included overtime. The appellate court reversedtheIllinoisWorkers’CompensationCommis-sion finding that it was undisputed that the petitioner’s regular work week consisted of five eight-hour shifts. The uncontradicted evidence also established that the petitioner was not required to work overtime as a condition of his employment, but rather he used his seniority and requested to work overtime. Therefore, it was properly excluded from the calculation of his average weekly wage.
Wage Differential Properly Based on Pre-injury Wage Rate Rather than Similar Employee
Taylor v. Illinois Workers’ Compensation Comm’n,372 Ill. App. 3d 327, 867 N.E.2d 1147 (4th Dist. 2007) – The petitioner suffered an injury to his left knee inawork-relatedaccidentandwasawardedawagedifferential of $143.92 per week by the arbitrator.
The wage differential was based on the fact that the petitioner’s treating physician placed the petitioner onapermanent restriction thatprecludedhimfromdriving a truck. The petitioner remained employed withtherespondentasadispatcherearninglessthanhe did as a truck driver. The petitioner’s previous job was assigned to co-employee Wes Trosper.
The petitioner sought review with the Illinois Workers’CompensationCommissionandtheCom-missionissuedacorrecteddecisionreducingthewagedifferential award to $121.49 per week, which equaled two-thirdsofthedifferencebetweenhiscurrentearn-ings and his average weekly wage. The petitioner then soughtreviewintheappellatecourtclaimingthattheCommission improperly refused to use the wages of Wes Trosper in calculating the wage differential award. The appellate court found that the Commission’s decisionwasnotagainstthemanifestweightoftheevidencebecauseitwasnotclearthatthepetitionerwould have made the same wage Wes Trosper made in the same position since Trosper had more seniority and was more likely to successfully bid on lucrative routes than the petitioner would have been. The court notedthatitwasproperfortheCommissiontocalcu-late the petitioner’s wage loss based on his pre-injury earningswhenothermethodsofdeterminingpost-ac-cident earnings were too speculative.
Truck Driver Who Signed an Independent Contractor Agreement Deemed an Employee
Roberson v. Illinois Workers’ Compensation Comm’n (P.I. & I. Motor Exp., Inc.), 225 Ill. 2d 159, 866 N.E.2d 191 (2007) – The petitioner worked for P.I.& I. as an employee truck driver from March to May, 2000. He then bought his own truck and on May 15, 2000 signed an independent contractor agreement. Roberson was responsible for all costs and expenses associated with operating his truck, including fuel,tolls, license plates and taxes. The contract permitted Roberson to have employees and he was required to haveworkers’compensationinsuranceforhimselfandany employees. He was also required to carry liability insurance coverage. The contract specifically pro-
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vided that it was not intended to create an employee/ employer relationship and that P.I. & I. shall have no direction or control over Roberson except in the results to be obtained.
The arbitrator found that Roberson was not an employee of P.I. & I. The Commission reversed, finding that P.I. & I. not only had a right to control Roberson’s work activities, but had in fact done so. The appellatecourtreversedtheCommissionandfoundthat the petitioner was not an employee. The Supreme CourtreversedtheappellatecourtandreinstatedtheCommission’s decision. It found that no single factor is determinative of the employment relationship and the significance of the factors will change depending on the work involved. It ruled that the Commission’s decisionwasnotagainstthemanifestweightofevi-dence. It noted that Roberson’s work fell entirely in the scope of P.I. & I.’s business and that P.I. & I. used independent contractor drivers almost exclusively. Finally, the Court noted that there was a growing ten-dency nationally to classify owner-drivers of trucks as employees when they perform a continuous service that is an integral part of the employer’s business.
Odd-Lot Permanent Total Reversed by Appellate Court for Lack of Vocational Expert Evidence
Westin Hotel v. Illinois Workers’ Compensation Comm’n, 372 Ill. App. 3d 527, 865 N.E.2d 342 (1st Dist. 2007) – The petitioner worked as a painter for the Westin Hotel and injured his back and left leg when try-ing to prevent a cart from tipping over. The arbitrator andtheIllinoisWorkers’CompensationCommissionfoundthepetitionertobeanodd-lotpermanenttotal--onewhothoughnotaltogetherincapacitatedtowork,isso handicapped that he will not be employed regularly in any well-known branch of the labor market--and the respondent sought review in the appellate court. In reversing the Commission’s finding that the petitioner was an odd-lot permanent total the appellate courtnoted that the petitioner has the burden of proving by a preponderance of the evidence that he in fact fit into the odd-lot category. The petitioner had relied on Dr. Coe,anoccupationalmedicinespecialist,tosupport
his contention that he was an odd-lot permanent total. The courted noted that the most recent cases making an odd-lot determination rely on evidence from rehabili-tation service providers or vocational counselors. The court noted that two other physicians who reviewed the case did not feel that the petitioner was permanently and totally disabled. The appellate court ruled that the Commission’s reliance on Dr. Coe’s opinion to sup-port its odd-lot permanent total finding was against the manifest weight of the evidence since Dr. Coe is not a vocational expert and did not order a vocational evaluation of the petitioner. Moreover, the petitioner failed to perform any sort of job search.
Uninsured Motorist Carrier Entitled to Credit for Workers’ Compensation Settlement
Taylor v. Pekin Ins. Co., 376 Ill. App. 3d 834, 876 N.E.2d 1048 (5th Dist. 2007) – Petitioner was injured inamotorvehicleaccidentwhileinthecourseofhisemployment with Herr Funeral Home. He received workers’ compensation benefits of $162,588.33 from Pekin Insurance. He then received an uninsured motor-ist award in the amount of $250,000. The uninsured motoristcoveragewasprovidedunderHerr’sautomo-bile insurance by Pekin Insurance. It issued a check in the amount of $87,412 to plaintiff in full satisfaction of the arbitration award. Pekin Insurance asserted thatitwasentitledtoaset-offinthefullamountofthe workers’ compensation lien of $162,588.33. The trial court agreed and the plaintiff appealed. The ap-pellatecourtheldthatPekinInsurancewasentitledtoaset-offfortheworkers’compensationlien,althoughthe lien was to be reduced by $40,467, the amount of statutory attorneys’ fees paid to petitioner’s attorney in the workers’ compensation case.
Award of Unspecific Vocational Rehabilitation Reversed by Appellate Court
Consolidated Freightways v. Illinois Workers’ Compensation Comm’n, 373 Ill. App. 3d 1077, 870 N.E.2d 839 (1st Dist. 2007) – The petitioner sus-tained a work-related accident while employed by Consolidated. The arbitrator awarded temporary total
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disability benefits and medical benefits, but denied petitioner’s request for vocational rehabilitation ben-efits. The Illinois Workers’ Compensation Commission affirmed the TTD and medical award but also ordered that Consolidated be required to provide the petitioner with “meaningful vocational rehabilitation.” Consoli-datedappealedclaimingthattheCommission’sorderforvocationalrehabilitationwasinappropriatebecausetherewasnoevidenceintherecordthatsaidserviceswould increase the petitioner’s earning capacity.
The appellate court held that the Commission’s decisioncontaininggeneralizedordersforvocationalrehabilitation without a specific plan is interlocutory in nature and not appealable. It further held that the Commission’s decision ordering the employer to pro-vide “meaningful vocational rehabilitation” without specifying the services of the offer is both confusing and inappropriate. Therefore, it remanded the case to the Commission for further proceedings.
Odd-Lot Permanent Total Awarded for Bilateral Knee Injury Despite Lack of Job Search
City of Chicago v. Illinois Workers’ Compensation Comm’n, 373 Ill. App. 3d 1080, 871 N.E.2d 765 (1st Dist. 2007) – Petitioner, an iron worker, injured both knees in a work-related fall. The arbitrator awarded 25 percent of each leg. The Commission reversed and found the petitioner to be an odd-lot permanent total. The appellate court upheld the Commission’s decision despite the fact that the petitioner did not present any evidence of a job search. It held that an odd-lot per-manent total may be proven either by an unsuccessful job search or by evidence that the petitioner cannot be regularly employed in a well-known branch of the labor market based on age, skills, training, experience and education. The appellate court acknowledged that there was a dispute between the vocational experts inthecasebutsustainedtheCommission’sdecisionthat gave more weight to the employee’s vocational expert.
Improperly Executed Bond Warrants Dismissal of Appeal
Unilever Best Foods North America v. Illinois Workers’ Compensation Comm’n, 374 Ill. App. 3d 314, 870 N.E.2d 1000 (1st Dist. 2007) – The respondent filed a petition for judicial review of the Commission’s decision in the Circuit Court of Cook County. Unilever filed a bond executed by Sandy S. Echeveste, one of its attorneys. In addition to the bond, Unilever filed a “Statement of Authority in Support of Bond” which stated that Mark F. Slavin was authorized to sign the bond’s principal in lieu of one of Unilever’s corpo-rate officers. The Statement of Authority was signed by Unilever’s resource manager, Barry A. Patterson. Petitioner moved to quash the summons issued by the circuitcourtanddismisstheappealbasedonlackofsubject matter jurisdiction. Unilever filed a response that included affidavits of Barry Patterson and Mark Slavin. The affidavits stated that Unilever extended authorization to Mark F. Slavin and his law firm includ-ing associate attorney, Sandy Echeveste, who signed the bond. In dismissing the appeal, the appellate court noted the well-established authority that the trial court may not consider evidence filed after the expiration of the 20-day statutory review period in order to establish an attorney’s authority to sign an appeal bond. Since the affidavit filed by Unilever authorized only Mark F. Slavin to sign the bond, any subsequent affidavits clarifying authority to sign the bond could not be con-sidered. Therefore the appeal was dismissed.
Civil Claim Against Temporary Staffing Agency Dismissed Under Exclusivity Provisions of Illinois Workers’ Compensation Act
Behrens v. California Cartage Co., Inc., 373 Ill. App. 3d 860, 870 N.E.2d 848 (1st Dist. 2007) – The plaintiff, Behrens, was employed by People Link Staffing Solutions, Inc., a temporary employment agency that loaned its employees to California Cartage. Cynthia Smith worked as a dispatcher for California Cartage Company and was also employed by Staffing Resources, Inc., a temporary employment agency that loaned its employee to California Cartage Company.
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Behrens alleged that she was injured by Smith’s negligence and filed a civil complaint against Cali-fornia Cartage Company and Staffing Resources, Inc., Smith’s employer. The trial court granted summary judgment in favor of California Cartage and Staffing Resources, Inc. extending the exclusive remedy pro-visionsoftheIllinoisWorkers’CompensationActtothe loaning and borrowing employers. The appellate courtupheldthecourt’sruling,notingthatSmithwasunderthedirectionandcontrolofCaliforniaCartage,not Staffing Resources when she allegedly injured Behrens. Behrens was also under the direction and control of California Cartage Company, so he and Smith were essentially acting as co-employees. Thus therecouldbenoclaimofrespondeatsuperioragainstStaffing Resources, Inc.
Cab Driver Deemed Independent ContractorWest Cab Co., Inc. v. Illinois Workers’ Compensa-
tion Comm’n, 376 Ill. App. 3d 396, 876 N.E.2d 53 (1st Dist. 2007) – The petitioner leased a cab from West Cab Company on a regular basis. He was shot and killed by an armed assailant and death benefits were sought by his surviving children. The petitioners filed anapplicationforadjustmentofclaimagainstWestCab Company, Northwest Cab Company and North-west Package Delivery Service, Inc. The arbitrator foundthatthepetitionerfailedtoprovethatthedece-dent was an employee of any of the three defendants and was acting as an independent contractor. The Il-linoisWorkers’CompensationCommissionreversedthearbitratorandfoundthedecedent’sdeatharoseoutof and in the course of his employment with all three respondents. All three respondents, who were owned by the same person, sought relief in the appellate court, which then reversed the Commission. It relied on Yel-low Cab Company v. Industrial Commission, 238 Ill. App. 3d 650 (1992), which enumerated nine different factorsusedtodeterminetheissueofwhetherornotthe alleged employer controls the method and man-ner of the work to be done. The appellate court noted that in the instant case only two of the nine factors were present: the cab was painted with the company’s
name,and the leasecontainedaprohibitionagainstsubleasing. Therefore, the appellate court reversed the Commission’s finding as against the manifest weight of the evidence. The appellate court further ruled that to the extent its decision was at odds with the holding inYellow Cab, that case was overruled.
Supreme Court Reverses Borrowman and Adopts Explicit Waiver Rule
Gallagher v. Lenart, 226 Ill. 2d 208, 874 N.E.2d 43 (2007) – The parties settled their workers’ compen-sationclaimandalumpsumsettlementcontractwasapproved by the arbitrator. The contract was silent on whethertherespondentretainedorwaiveditswork-ers’ compensation lien under section 5(b) of the Act. The circuit court ruled that respondent had waived itsworkers’compensationlienunderBorrowman v. Prastein, 356 Ill. App. 3d 546 (2005). The Illinois SupremeCourtreversedtheBorrowmanholdingandapplied an explicit waiver rule. Respondent does not waiveitsworkers’compensationlienunderasettle-mentcontractunlessthelanguageexplicitly providesfor such a waiver.
Exclusivity Provisions Do Not Protect Joint Venture Member
Ioerger v. Halverson Const. Co., Inc., 377 Ill. App. 3d 223, 878 N.E.2d 147 (3d Dist. 2007) – Two defendantsformedajointventureinordertoplaceabid with the Illinois Department of Transportation for a bridge repair project in Peoria, Illinois. The joint ven-ture won the bid; and during the course of the project thescaffoldingcollapsedandseveralironworkerswereinjured or killed. The ironworkers collected workers’ compensation benefits from their employer and then filed a civil action against Halverson and the joint venture for civil damages. The trial court granted a motion for summary judgment in favor of Halverson and the joint venture insulating them from liability under the exclusive remedy provision of section 5(a) of the Workers’ Compensation Act. The appellate court reversed the trial court finding that in order for Halverson and the joint venture to enjoy the Act’s
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immunity, it must also undertake its obligations. Al-though Halverson was required under the joint venture documentstoreimburseitsjointventurepartnerforworkers’compensationinsurancepremiums,itfailedto do so. Therefore Halverson was not insulated from liability under section 5(a) of the Act. It should be notedthat theIllinoisSupremeCourthasgrantedapetition for leave to appeal in this case.
Repetitive Trauma Claim Denied Based on Lack of Notice
White v. Illinois Workers’ Compensation Comm’n,374 Ill. App. 3d 907, 873 N.E.2d 388 (4th Dist. 2007)– The petitioner alleged repetitive trauma injuries to his right and left shoulders and back. The alleged date of accident was July 17, 2000, the last date that the petitioner worked for the respondent. The arbitrator foundthecasecompensablebuttheIllinoisWorkers’Compensation Commission reversed unanimously and heldthatthepetitionerfailedtogivetherespondenttimely notice of his accidental injuries. The appellate court affirmed the Illinois Workers’ Compensation Commission, finding that the petitioner failed to give notice of his alleged work injury within 45 days of the accident date. It noted that the accident date is the date on which the injury “manifests itself,” meaning that the date on which both the fact of the injury and the causal relationship of the injury to the petitioner’s employment would have become plainly apparent to a reasonable person. The court noted that although the employer knew the petitioner was injured within 45 days of the alleged accident, the record did not show notice of “industrial injuries.”
It further held that respondent was not required to show undue prejudice because the prejudice require-ment is not required unless some notice is given. The fact that the respondent knew of the injury but not of the industrial injury did not constitute defective notice under the Act. Finally, the court held that the 45-day notice period runs from the date of the injury alleged by the petitioner.
Random Attack on Delivery Driver Held Compensable Under Traveling Employee Doctrine
Potenzo v. Illinois Workers’ Compensation Comm’n, 378 Ill. App. 3d 113, 881 N.E.2d 523 (1st Dist. 2007) – The petitioner was employed by Jewel Food Stores as a delivery truck driver. During one of his visits to a Jewel Store, he was attacked from be-hind by an unknown assailant. The petitioner did not know who attacked him or why. The arbitrator and IllinoisWorkers’CompensationCommissiondeniedcompensability based on the lack of any evidence that the attack was related to his employment.
The appellate court reversed the Commission and found the case compensable. It determined the attack was neither a risk distinctly associated with his em-ployment nor was it personal to him. The attack was a result of a neutral risk. It further held that since the petitioner was a traveling employee, the risk of being assaulted,althoughonetowhichthegeneralpublicisexposed, was a risk to which the claimant, by virtue of his employment, was exposed to a greater degree than the general public. Thus, the case was found compensable.
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If you have questions about this newsletter, please contact:
Bruce L. BondsHeyl, Royster, Voelker & Allen102 East Main Street, Suite 300P.O. Box 129Urbana, Illinois 61803(217) 344-0060Fax (217) 344-9295E-mail: [email protected]
We recommend the entire opinion be read andcounselconsultedconcerningtheeffectthesedecisionsmay have upon your claims.
Also, feel free to contact any of our workers’ com-pensation lawyers at the following offices:
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Springfield, Illinois 62705National City Center, Suite 5751 N. Old State Capitol PlazaP.O. Box 1687(217) 522-8822Fax (217) 523-3902Gary L. Borah - [email protected] R. Simmons - [email protected] L. Pratt - [email protected] O. Langfelder - [email protected]
Urbana, Illinois 61803102 East Main Street, Suite 300P.O. Box 129(217) 344-0060Fax (217) 344-9295Bruce L. Bonds - [email protected] D. Flodstrom - [email protected] J. Peterson - [email protected] J. Tomaso - [email protected] K. Guyette - [email protected]
Rockford,Illinois6110�SecondFloorNational City Bank Building120WestStateStreetP.O. Box 1288(815) 963-4454Fax (815) 963-0399Kevin J. Luther - [email protected] A. Antonacci - [email protected] P. Crowley - [email protected] J. Roth - [email protected] A. Welch - [email protected] J. Hughes - [email protected]
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