WCLA MCLE

bull 2009 WCLA MCLE Wrap Up Review amp Updatebull Wednesday December 30 2009bull 1200 noon to 1 pmbull James R Thompson Center Auditorium

Chicago ILbull 1 hour general MCLE credit

Economy Packing (January 2009)bull Undocumented worker entitled to PTD bull Zendejas v JampJ Brothers Construction 09IWCC650 (6-26-09) ldquoWhile

awarding a determinate period of temporary total disability benefitshellipthe Arbitrator ruled Petitioner could not receive ongoing temporary total disability benefits because Respondents section 12 examiner Dr Kornblatt determined Petitioner reached maximum medical improvement (MMI) The Arbitrator further considered Petitioners present inability to work attenuated from his medical condition and instead a result of his immigration status as an illegal alien To begin a petitioners immigration status has no bearing on his eligibility for any benefits under the Act As the Illinois Appellate Court held in Economy Packing Co 387 Ill App 3d 283 295 (2008) lsquothe Act allows workers compensation benefits to be awarded to undocumented aliens and an award of such benefits is not preempted by federal immigration lawrsquo Therefore should the medical evidence prove Petitioner to be temporarily totally disabled Petitioner may receive temporary total disability benefitsrdquo

Economy Packing (January 2009)bull Undocumented worker entitled to PTD bull Zendejas v JampJ Brothers Construction 09IWCC650 (6-26-09) ldquoWhile

awarding a determinate period of temporary total disability benefitshellipthe Arbitrator ruled Petitioner could not receive ongoing temporary total disability benefits because Respondents section 12 examiner Dr Kornblatt determined Petitioner reached maximum medical improvement (MMI) The Arbitrator further considered Petitioners present inability to work attenuated from his medical condition and instead a result of his immigration status as an illegal alien To begin a petitioners immigration status has no bearing on his eligibility for any benefits under the Act As the Illinois Appellate Court held in Economy Packing Co 387 Ill App 3d 283 295 (2008) lsquothe Act allows workers compensation benefits to be awarded to undocumented aliens and an award of such benefits is not preempted by federal immigration lawrsquo Therefore should the medical evidence prove Petitioner to be temporarily totally disabled Petitioner may receive temporary total disability benefitsrdquo

City of Chicago (February 2009)bull 48 hour rule does not begin with depositionbull Corona v Chicago Park District 09IWCC580 (6-9-09)

ldquoArbitrator rejected Respondents sect12 examination report based on Marks v Acme (found violation of the 48 hour rule in Section 12) finding the trial began with the initial doctors deposition Clearly Respondents sect12 here would be the same violation and the report properly rejected Regardless even if Marks is considered killed by Townsend v City of Chicago Respondent had from before (date of dep of treater) until the hearing began hellip to obtain their sect12 and did not get it until shortly before proofs closed The fact that the trial had begun shows of itself a violation of the 48 hour rule as the report was clearly not tendered lsquoprior to hearingrsquordquo

Hagene Settlement KTS (March 2009)

bull ldquoEssentially the Respondent wants us to decide this case in a vacuum looking only to the four corners of the documenthellipFortunately we do not find ourselves to be so constrained by IL lawrdquo

bull Settlement was for 30 loss of use of the arm ldquoThat was the full extent of the settlement thus making it clear that no part of the settlement was for past unpaid medical bills related to the incidentrdquo

bull ldquoA waiver of important statutory rights must be explicitrdquo compared to waiver of lien rights in Gallagher 226 Ill2d 208

bull ldquoWhen we consider the entire contract in the context of all surrounding circumstances we conclude that the parties did not intend to discharge the Respondentrsquos statutory obligation to pay the Petitionerrsquos past related medical bills What is clear from the surrounding circumstances is that the settlement was premised on the understanding that the Respondent had in fact paid all outstanding medical bills to the date of the settlement as indicated in the contract recitalrdquo

bull Update Does it really matter which box is checked

Chamorro UR (March 2009)bull Bellamy v Flexway 09IWCC1090 (10-27-09) ldquoAfter considering the entire record

the Commission modifies the Decision of the Arbitrator by vacating the award of prospective care ie the intradiscal biacuplasty recommended by Dr Jain The specific record before us does not convince us that Petitioner was a good candidate for this procedure as of hellipthe date of the second 19(b) hearing When the Arbitrator ordered the procedure she cited a concession made by Dr Babus the utilization review physician who responded to Dr Jains appeal letter Dr Babus did in fact acknowledge that patients in a study hellip showed improvements in several pain assessments after undergoing intradiscal biacuplasty This study however specifically excluded patients with pending workers compensation claims a fact not noted by the Arbitratorrdquo

bull Early v United 09IWCC839 (8-10-09) ldquoThe Commission also affirms the Arbitrators award of prospective surgery The Commission like the Arbitrator assigns greater weight to the opinions of Petitioners treating hand surgeon Dr Schiffman than to those of Respondents Section 12 examiner and utilization review physicianshellipthe second utilization review physician who addressed the appeal of the initial denial acknowledged that ACOEM and ODG do not address the specific issues associated with the procedurerdquo

bull UR Win some lose some based on quality of UR

Legislative Update (April 2009)

bull No news is good news Or is it Pressure upbull Donrsquot think that ldquocollectively bargained

workersrsquo compensationrdquo or ldquoalternative dispute resolutionrdquo will go away

bull Tell your clients about the negativesbull Protect your job

Overtime (May 2009)bull Lorea v Centralia Correctional 09IWCC1236 (11-19-09) ldquoPetitioner testified that

generally overtime for correctional officers such as himself was available lsquoevery day on every shiftrsquo Correctional officers who wished to work OT put their names on a voluntary OT list Because of personnel shortage if not enough officers signed up lsquopeople get mandatedrsquohellipIt is well established that lsquothose hours in excess of an employees regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each weekrsquo should not be included in the AWW calculations See Airborne Express 372 Ill App 3d 549 (2007) Respondent concedes that roll call pay in the sum of $3326 a week and one percent of Petitioners OT pay in the sum of $244 a week should be included in the AWW calculations yielding an average weekly wage of $ 103357 We find that the rest of Petitioners OT wages is not includable in the AWW calculationsrdquo

bull Bond v PPG 09IWCC0469 (5-15-09) ldquoOvertime is excluded from the calculation of a claimants AWW unless the claimant is required to work OT as a condition of her employment or the OT hours are part of the claimants consistent weekly schedule Airborne Express The Commission finds that Respondent adhered to a voluntary OT policy in that only employees who voluntarily lsquosigned uprsquo to work OT were ever contacted with OT opportunities As such only employees who volunteered to work OT could be lsquoforcedrsquo to do sordquo

Hagene Settlement KTS (March 2009)

bull ldquoEssentially the Respondent wants us to decide this case in a vacuum looking only to the four corners of the documenthellipFortunately we do not find ourselves to be so constrained by IL lawrdquo

bull Settlement was for 30 loss of use of the arm ldquoThat was the full extent of the settlement thus making it clear that no part of the settlement was for past unpaid medical bills related to the incidentrdquo

bull ldquoA waiver of important statutory rights must be explicitrdquo compared to waiver of lien rights in Gallagher 226 Ill2d 208

bull ldquoWhen we consider the entire contract in the context of all surrounding circumstances we conclude that the parties did not intend to discharge the Respondentrsquos statutory obligation to pay the Petitionerrsquos past related medical bills What is clear from the surrounding circumstances is that the settlement was premised on the understanding that the Respondent had in fact paid all outstanding medical bills to the date of the settlement as indicated in the contract recitalrdquo

bull Update Does it really matter which box is checked

Chamorro UR (March 2009)bull Bellamy v Flexway 09IWCC1090 (10-27-09) ldquoAfter considering the entire record

the Commission modifies the Decision of the Arbitrator by vacating the award of prospective care ie the intradiscal biacuplasty recommended by Dr Jain The specific record before us does not convince us that Petitioner was a good candidate for this procedure as of hellipthe date of the second 19(b) hearing When the Arbitrator ordered the procedure she cited a concession made by Dr Babus the utilization review physician who responded to Dr Jains appeal letter Dr Babus did in fact acknowledge that patients in a study hellip showed improvements in several pain assessments after undergoing intradiscal biacuplasty This study however specifically excluded patients with pending workers compensation claims a fact not noted by the Arbitratorrdquo

bull Early v United 09IWCC839 (8-10-09) ldquoThe Commission also affirms the Arbitrators award of prospective surgery The Commission like the Arbitrator assigns greater weight to the opinions of Petitioners treating hand surgeon Dr Schiffman than to those of Respondents Section 12 examiner and utilization review physicianshellipthe second utilization review physician who addressed the appeal of the initial denial acknowledged that ACOEM and ODG do not address the specific issues associated with the procedurerdquo

bull UR Win some lose some based on quality of UR

Legislative Update (April 2009)

bull No news is good news Or is it Pressure upbull Donrsquot think that ldquocollectively bargained

workersrsquo compensationrdquo or ldquoalternative dispute resolutionrdquo will go away

bull Tell your clients about the negativesbull Protect your job

Overtime (May 2009)bull Lorea v Centralia Correctional 09IWCC1236 (11-19-09) ldquoPetitioner testified that

generally overtime for correctional officers such as himself was available lsquoevery day on every shiftrsquo Correctional officers who wished to work OT put their names on a voluntary OT list Because of personnel shortage if not enough officers signed up lsquopeople get mandatedrsquohellipIt is well established that lsquothose hours in excess of an employees regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each weekrsquo should not be included in the AWW calculations See Airborne Express 372 Ill App 3d 549 (2007) Respondent concedes that roll call pay in the sum of $3326 a week and one percent of Petitioners OT pay in the sum of $244 a week should be included in the AWW calculations yielding an average weekly wage of $ 103357 We find that the rest of Petitioners OT wages is not includable in the AWW calculationsrdquo

bull Bond v PPG 09IWCC0469 (5-15-09) ldquoOvertime is excluded from the calculation of a claimants AWW unless the claimant is required to work OT as a condition of her employment or the OT hours are part of the claimants consistent weekly schedule Airborne Express The Commission finds that Respondent adhered to a voluntary OT policy in that only employees who voluntarily lsquosigned uprsquo to work OT were ever contacted with OT opportunities As such only employees who volunteered to work OT could be lsquoforcedrsquo to do sordquo

Chamorro UR (March 2009)bull Bellamy v Flexway 09IWCC1090 (10-27-09) ldquoAfter considering the entire record

the Commission modifies the Decision of the Arbitrator by vacating the award of prospective care ie the intradiscal biacuplasty recommended by Dr Jain The specific record before us does not convince us that Petitioner was a good candidate for this procedure as of hellipthe date of the second 19(b) hearing When the Arbitrator ordered the procedure she cited a concession made by Dr Babus the utilization review physician who responded to Dr Jains appeal letter Dr Babus did in fact acknowledge that patients in a study hellip showed improvements in several pain assessments after undergoing intradiscal biacuplasty This study however specifically excluded patients with pending workers compensation claims a fact not noted by the Arbitratorrdquo

bull Early v United 09IWCC839 (8-10-09) ldquoThe Commission also affirms the Arbitrators award of prospective surgery The Commission like the Arbitrator assigns greater weight to the opinions of Petitioners treating hand surgeon Dr Schiffman than to those of Respondents Section 12 examiner and utilization review physicianshellipthe second utilization review physician who addressed the appeal of the initial denial acknowledged that ACOEM and ODG do not address the specific issues associated with the procedurerdquo

bull UR Win some lose some based on quality of UR

Legislative Update (April 2009)

bull No news is good news Or is it Pressure upbull Donrsquot think that ldquocollectively bargained

workersrsquo compensationrdquo or ldquoalternative dispute resolutionrdquo will go away

bull Tell your clients about the negativesbull Protect your job

Overtime (May 2009)bull Lorea v Centralia Correctional 09IWCC1236 (11-19-09) ldquoPetitioner testified that

generally overtime for correctional officers such as himself was available lsquoevery day on every shiftrsquo Correctional officers who wished to work OT put their names on a voluntary OT list Because of personnel shortage if not enough officers signed up lsquopeople get mandatedrsquohellipIt is well established that lsquothose hours in excess of an employees regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each weekrsquo should not be included in the AWW calculations See Airborne Express 372 Ill App 3d 549 (2007) Respondent concedes that roll call pay in the sum of $3326 a week and one percent of Petitioners OT pay in the sum of $244 a week should be included in the AWW calculations yielding an average weekly wage of $ 103357 We find that the rest of Petitioners OT wages is not includable in the AWW calculationsrdquo

bull Bond v PPG 09IWCC0469 (5-15-09) ldquoOvertime is excluded from the calculation of a claimants AWW unless the claimant is required to work OT as a condition of her employment or the OT hours are part of the claimants consistent weekly schedule Airborne Express The Commission finds that Respondent adhered to a voluntary OT policy in that only employees who voluntarily lsquosigned uprsquo to work OT were ever contacted with OT opportunities As such only employees who volunteered to work OT could be lsquoforcedrsquo to do sordquo

Legislative Update (April 2009)

bull No news is good news Or is it Pressure upbull Donrsquot think that ldquocollectively bargained

workersrsquo compensationrdquo or ldquoalternative dispute resolutionrdquo will go away

bull Tell your clients about the negativesbull Protect your job

Overtime (May 2009)bull Lorea v Centralia Correctional 09IWCC1236 (11-19-09) ldquoPetitioner testified that

generally overtime for correctional officers such as himself was available lsquoevery day on every shiftrsquo Correctional officers who wished to work OT put their names on a voluntary OT list Because of personnel shortage if not enough officers signed up lsquopeople get mandatedrsquohellipIt is well established that lsquothose hours in excess of an employees regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each weekrsquo should not be included in the AWW calculations See Airborne Express 372 Ill App 3d 549 (2007) Respondent concedes that roll call pay in the sum of $3326 a week and one percent of Petitioners OT pay in the sum of $244 a week should be included in the AWW calculations yielding an average weekly wage of $ 103357 We find that the rest of Petitioners OT wages is not includable in the AWW calculationsrdquo

bull Bond v PPG 09IWCC0469 (5-15-09) ldquoOvertime is excluded from the calculation of a claimants AWW unless the claimant is required to work OT as a condition of her employment or the OT hours are part of the claimants consistent weekly schedule Airborne Express The Commission finds that Respondent adhered to a voluntary OT policy in that only employees who voluntarily lsquosigned uprsquo to work OT were ever contacted with OT opportunities As such only employees who volunteered to work OT could be lsquoforcedrsquo to do sordquo

Overtime (May 2009)bull Lorea v Centralia Correctional 09IWCC1236 (11-19-09) ldquoPetitioner testified that

generally overtime for correctional officers such as himself was available lsquoevery day on every shiftrsquo Correctional officers who wished to work OT put their names on a voluntary OT list Because of personnel shortage if not enough officers signed up lsquopeople get mandatedrsquohellipIt is well established that lsquothose hours in excess of an employees regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each weekrsquo should not be included in the AWW calculations See Airborne Express 372 Ill App 3d 549 (2007) Respondent concedes that roll call pay in the sum of $3326 a week and one percent of Petitioners OT pay in the sum of $244 a week should be included in the AWW calculations yielding an average weekly wage of $ 103357 We find that the rest of Petitioners OT wages is not includable in the AWW calculationsrdquo

bull Bond v PPG 09IWCC0469 (5-15-09) ldquoOvertime is excluded from the calculation of a claimants AWW unless the claimant is required to work OT as a condition of her employment or the OT hours are part of the claimants consistent weekly schedule Airborne Express The Commission finds that Respondent adhered to a voluntary OT policy in that only employees who voluntarily lsquosigned uprsquo to work OT were ever contacted with OT opportunities As such only employees who volunteered to work OT could be lsquoforcedrsquo to do sordquo

ADA (June 2009)bull EEOC v Sears ND IL No 04C7282 Record $62 million settlement arising

from a WC claim ldquoSears maintained an inflexible leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities in violation of the ADArdquo

bull Grabs v Safeway 917 NE2d 122 (2009)Does the Workers Compensation Act give the Illinois Workers Compensation Commission the exclusive authority to determine whether an injured employee may return to work such that when an employer is faced with conflicting medical opinions from the employees doctor and the employers IME the employer may not rely upon the IME opinion to terminate the employee under the employers attendance policy for failing to return to work before the Commission has adjudicated the pending dispute over the conflicting medical opinionsldquo Answer YES ldquoAn employer may not rely solely on an IME in terminating an employee for failing to return to workhelliprdquo

Beelman Trucking (July 2009)bull Petitioner entitled to both statutory (two member loss) permanent

total and permanent partial disability lossesbull Any casesbull Christeen Kitchen v City of Chicago 09IWCC0374 (4-16-09)

ldquoBeelman Trucking 381 Ill App3d (2009) indicating that there was overwhelming competent evidence from Petitioners doctor an occupational therapist a rehabilitation consultant that a voice activated computer and environmental control system were appropriate appliances hellip It was deemed that said modifications would allow him to benefit both physically and psychologicallyBased on the above set of facts and the Illinois case law the Commission finds that Petitioner failed to provide sufficient medicalexpert evidence to support the claim that an exterior second story lift is reasonable and necessary under Section 8(a) of the Actrdquo

Smalley Steel Ring (August 2009)bull Arbitratorrsquos final decision cannot be re-opened or set asidebull Ricardo Estrada v Complete Temporary Labor 08WC31145

ldquoRespondents Motion alleges fraud on the part of Petitioner It incorporates medical records not contained in the arbitration transcript While the Commission is concerned about any allegation of fraud it cannot venture outside the record and has no power to set aside the Decision of the Arbitrator The Supreme and Appellate Courts have repeatedly made it clear that fraud is not a basis for extending the Commissions authority and that Section 19(f) allows recall of a decision lsquoin only one instance ie to correct clerical or computational errorsrsquo Smalley Steel Ring Company v Illinois Workers Compensation Commission 386 IllApp3d 993 996 (2nd Dist 2008) The Circuit Court is the appropriate forum for Respondents allegations Ming Auto Body v Industrial Commission 387 IllApp3d 244 (2008)rdquo

Beelman Trucking (July 2009)bull Petitioner entitled to both statutory (two member loss) permanent

total and permanent partial disability lossesbull Any casesbull Christeen Kitchen v City of Chicago 09IWCC0374 (4-16-09)

ldquoBeelman Trucking 381 Ill App3d (2009) indicating that there was overwhelming competent evidence from Petitioners doctor an occupational therapist a rehabilitation consultant that a voice activated computer and environmental control system were appropriate appliances hellip It was deemed that said modifications would allow him to benefit both physically and psychologicallyBased on the above set of facts and the Illinois case law the Commission finds that Petitioner failed to provide sufficient medicalexpert evidence to support the claim that an exterior second story lift is reasonable and necessary under Section 8(a) of the Actrdquo

Smalley Steel Ring (August 2009)bull Arbitratorrsquos final decision cannot be re-opened or set asidebull Ricardo Estrada v Complete Temporary Labor 08WC31145

ldquoRespondents Motion alleges fraud on the part of Petitioner It incorporates medical records not contained in the arbitration transcript While the Commission is concerned about any allegation of fraud it cannot venture outside the record and has no power to set aside the Decision of the Arbitrator The Supreme and Appellate Courts have repeatedly made it clear that fraud is not a basis for extending the Commissions authority and that Section 19(f) allows recall of a decision lsquoin only one instance ie to correct clerical or computational errorsrsquo Smalley Steel Ring Company v Illinois Workers Compensation Commission 386 IllApp3d 993 996 (2nd Dist 2008) The Circuit Court is the appropriate forum for Respondents allegations Ming Auto Body v Industrial Commission 387 IllApp3d 244 (2008)rdquo

Smalley Steel Ring (August 2009)bull Arbitratorrsquos final decision cannot be re-opened or set asidebull Ricardo Estrada v Complete Temporary Labor 08WC31145

ldquoRespondents Motion alleges fraud on the part of Petitioner It incorporates medical records not contained in the arbitration transcript While the Commission is concerned about any allegation of fraud it cannot venture outside the record and has no power to set aside the Decision of the Arbitrator The Supreme and Appellate Courts have repeatedly made it clear that fraud is not a basis for extending the Commissions authority and that Section 19(f) allows recall of a decision lsquoin only one instance ie to correct clerical or computational errorsrsquo Smalley Steel Ring Company v Illinois Workers Compensation Commission 386 IllApp3d 993 996 (2nd Dist 2008) The Circuit Court is the appropriate forum for Respondents allegations Ming Auto Body v Industrial Commission 387 IllApp3d 244 (2008)rdquo

Circuit City Stores (September 2009)

bull Good Samaritan doctrine entitles chipsrsquo rescuer to compensation

bull Any cases

Penalties (October 2009)bull Global Products 911 NE2d 1042 (2009) Appellate Court takes away penalty

award from cigarette smokerbull Lenny Szarek Inc 03-08-0530-WC (October 20 2009) ldquoRespondent

argues that the facts available to it justified its denial of benefits to claimant We agree It points to claimants urine tests that revealed what it terms lsquosevere marijuana intoxicationrsquo and Leikins opinions that were derived from them Respondent also contends that it was entitled to rely on Paganelis and Parro Those cases are distinguishable in that they involved alcohol rather than marijuana however since we had not articulated this distinction with any degree of detail in the past respondent was not unreasonable in seeking to analogize the present situation to those cases In sum a reasonable person in possession of the facts available to respondent could have concluded that claimant was not entitled to benefits under the Act In any event we do hold that an opposite conclusion to that drawn by the Commission is clearly apparent Accordingly the Commission decision to award penalties and fees was erroneous given the state of the record in this caserdquo

Elmhurst Park District (November 2009)

bull Released for publication December 7 2009 Fitness supervisor not engaged in voluntary recreational program when injured playing wallyball

Interstate Scaffolding (November 2008)

bull Argued in IL Supreme Court 9-24-09 available at wwwstateilus

bull Querio 09IWCC1057 TTD cut off for period of ldquosuspensionrdquo for failing random drug test

bull Moody 09IWCC294 TTD cut off on retirementbull Watts 09IWCC332 TTD cut off after firing for

saying something ldquoreprehensiblerdquo about a co-employee

bull Baize 09IWCC293 TTD not cut off P resigned but went to work for another ER

The Interstate Scaffolding ProblemWatts v Ingalls 09IWCC332

bull ldquoBut there was no damage to property here as in Interstate Scaffolding There was

no harmful or offensive touching There was no threatening or intimidating behavior There was no assault Without meaning to minimize what happened it was offensive language not conduct and all parties agree it was not aimed directly at Ms Ohern If Ms Greiss had not repeated it to her there would have been no offense taken by Ms OhernhellipThe Arbitrator has closely read and considered the Interstate Scaffolding case which was decided 3-2 and the Arbitrator would prefer more information as suggested in Justice Dixons dissent Would a similar employee who was not on light-duty have been terminated under the same circumstances without one of the less severe steps being taken first This case was tried before Interstate Scaffolding was published and so there is no evidence in the record about that But the majority decision does not require it in any event In the absence of that however it is possible that the respondent merely took advantage of the situation terminated the petitioner and cut off their liability for future TTD benefits In any event the Arbitrator has no jurisdiction to resolve employment disputes He is not empowered by the Interstate Scaffolding case to make inquiries along those lines because apparently it is not considered relevant As indicated above the Arbitrator then feels he has no choice but to follow the Courts leadrdquo

• WCLA MCLE
• Economy Packing (January 2009)
• City of Chicago (February 2009)
• Hagene Settlement KTS (March 2009)
• Chamorro UR (March 2009)
• Legislative Update (April 2009)
• Overtime (May 2009)
• ADA (June 2009)
• Beelman Trucking (July 2009)
• Smalley Steel Ring (August 2009)
• Circuit City Stores (September 2009)
• Penalties (October 2009)
• Elmhurst Park District (November 2009)
• Interstate Scaffolding (November 2008)
• The Interstate Scaffolding Problem Watts v Ingalls 09IWCC332

Penalties (October 2009)bull Global Products 911 NE2d 1042 (2009) Appellate Court takes away penalty

award from cigarette smokerbull Lenny Szarek Inc 03-08-0530-WC (October 20 2009) ldquoRespondent

argues that the facts available to it justified its denial of benefits to claimant We agree It points to claimants urine tests that revealed what it terms lsquosevere marijuana intoxicationrsquo and Leikins opinions that were derived from them Respondent also contends that it was entitled to rely on Paganelis and Parro Those cases are distinguishable in that they involved alcohol rather than marijuana however since we had not articulated this distinction with any degree of detail in the past respondent was not unreasonable in seeking to analogize the present situation to those cases In sum a reasonable person in possession of the facts available to respondent could have concluded that claimant was not entitled to benefits under the Act In any event we do hold that an opposite conclusion to that drawn by the Commission is clearly apparent Accordingly the Commission decision to award penalties and fees was erroneous given the state of the record in this caserdquo

Elmhurst Park District (November 2009)

bull Released for publication December 7 2009 Fitness supervisor not engaged in voluntary recreational program when injured playing wallyball

Interstate Scaffolding (November 2008)

bull Argued in IL Supreme Court 9-24-09 available at wwwstateilus

bull Querio 09IWCC1057 TTD cut off for period of ldquosuspensionrdquo for failing random drug test

bull Moody 09IWCC294 TTD cut off on retirementbull Watts 09IWCC332 TTD cut off after firing for

saying something ldquoreprehensiblerdquo about a co-employee

bull Baize 09IWCC293 TTD not cut off P resigned but went to work for another ER

The Interstate Scaffolding ProblemWatts v Ingalls 09IWCC332

bull ldquoBut there was no damage to property here as in Interstate Scaffolding There was

no harmful or offensive touching There was no threatening or intimidating behavior There was no assault Without meaning to minimize what happened it was offensive language not conduct and all parties agree it was not aimed directly at Ms Ohern If Ms Greiss had not repeated it to her there would have been no offense taken by Ms OhernhellipThe Arbitrator has closely read and considered the Interstate Scaffolding case which was decided 3-2 and the Arbitrator would prefer more information as suggested in Justice Dixons dissent Would a similar employee who was not on light-duty have been terminated under the same circumstances without one of the less severe steps being taken first This case was tried before Interstate Scaffolding was published and so there is no evidence in the record about that But the majority decision does not require it in any event In the absence of that however it is possible that the respondent merely took advantage of the situation terminated the petitioner and cut off their liability for future TTD benefits In any event the Arbitrator has no jurisdiction to resolve employment disputes He is not empowered by the Interstate Scaffolding case to make inquiries along those lines because apparently it is not considered relevant As indicated above the Arbitrator then feels he has no choice but to follow the Courts leadrdquo

• WCLA MCLE
• Economy Packing (January 2009)
• City of Chicago (February 2009)
• Hagene Settlement KTS (March 2009)
• Chamorro UR (March 2009)
• Legislative Update (April 2009)
• Overtime (May 2009)
• ADA (June 2009)
• Beelman Trucking (July 2009)
• Smalley Steel Ring (August 2009)
• Circuit City Stores (September 2009)
• Penalties (October 2009)
• Elmhurst Park District (November 2009)
• Interstate Scaffolding (November 2008)
• The Interstate Scaffolding Problem Watts v Ingalls 09IWCC332

Elmhurst Park District (November 2009)

bull Released for publication December 7 2009 Fitness supervisor not engaged in voluntary recreational program when injured playing wallyball

Interstate Scaffolding (November 2008)

bull Argued in IL Supreme Court 9-24-09 available at wwwstateilus

bull Querio 09IWCC1057 TTD cut off for period of ldquosuspensionrdquo for failing random drug test

bull Moody 09IWCC294 TTD cut off on retirementbull Watts 09IWCC332 TTD cut off after firing for

saying something ldquoreprehensiblerdquo about a co-employee

bull Baize 09IWCC293 TTD not cut off P resigned but went to work for another ER

The Interstate Scaffolding ProblemWatts v Ingalls 09IWCC332

bull ldquoBut there was no damage to property here as in Interstate Scaffolding There was

no harmful or offensive touching There was no threatening or intimidating behavior There was no assault Without meaning to minimize what happened it was offensive language not conduct and all parties agree it was not aimed directly at Ms Ohern If Ms Greiss had not repeated it to her there would have been no offense taken by Ms OhernhellipThe Arbitrator has closely read and considered the Interstate Scaffolding case which was decided 3-2 and the Arbitrator would prefer more information as suggested in Justice Dixons dissent Would a similar employee who was not on light-duty have been terminated under the same circumstances without one of the less severe steps being taken first This case was tried before Interstate Scaffolding was published and so there is no evidence in the record about that But the majority decision does not require it in any event In the absence of that however it is possible that the respondent merely took advantage of the situation terminated the petitioner and cut off their liability for future TTD benefits In any event the Arbitrator has no jurisdiction to resolve employment disputes He is not empowered by the Interstate Scaffolding case to make inquiries along those lines because apparently it is not considered relevant As indicated above the Arbitrator then feels he has no choice but to follow the Courts leadrdquo

• WCLA MCLE
• Economy Packing (January 2009)
• City of Chicago (February 2009)
• Hagene Settlement KTS (March 2009)
• Chamorro UR (March 2009)
• Legislative Update (April 2009)
• Overtime (May 2009)
• ADA (June 2009)
• Beelman Trucking (July 2009)
• Smalley Steel Ring (August 2009)
• Circuit City Stores (September 2009)
• Penalties (October 2009)
• Elmhurst Park District (November 2009)
• Interstate Scaffolding (November 2008)
• The Interstate Scaffolding Problem Watts v Ingalls 09IWCC332

Interstate Scaffolding (November 2008)

bull Argued in IL Supreme Court 9-24-09 available at wwwstateilus

bull Querio 09IWCC1057 TTD cut off for period of ldquosuspensionrdquo for failing random drug test

bull Moody 09IWCC294 TTD cut off on retirementbull Watts 09IWCC332 TTD cut off after firing for

saying something ldquoreprehensiblerdquo about a co-employee

bull Baize 09IWCC293 TTD not cut off P resigned but went to work for another ER

The Interstate Scaffolding ProblemWatts v Ingalls 09IWCC332

bull ldquoBut there was no damage to property here as in Interstate Scaffolding There was

no harmful or offensive touching There was no threatening or intimidating behavior There was no assault Without meaning to minimize what happened it was offensive language not conduct and all parties agree it was not aimed directly at Ms Ohern If Ms Greiss had not repeated it to her there would have been no offense taken by Ms OhernhellipThe Arbitrator has closely read and considered the Interstate Scaffolding case which was decided 3-2 and the Arbitrator would prefer more information as suggested in Justice Dixons dissent Would a similar employee who was not on light-duty have been terminated under the same circumstances without one of the less severe steps being taken first This case was tried before Interstate Scaffolding was published and so there is no evidence in the record about that But the majority decision does not require it in any event In the absence of that however it is possible that the respondent merely took advantage of the situation terminated the petitioner and cut off their liability for future TTD benefits In any event the Arbitrator has no jurisdiction to resolve employment disputes He is not empowered by the Interstate Scaffolding case to make inquiries along those lines because apparently it is not considered relevant As indicated above the Arbitrator then feels he has no choice but to follow the Courts leadrdquo

• WCLA MCLE
• Economy Packing (January 2009)
• City of Chicago (February 2009)
• Hagene Settlement KTS (March 2009)
• Chamorro UR (March 2009)
• Legislative Update (April 2009)
• Overtime (May 2009)
• ADA (June 2009)
• Beelman Trucking (July 2009)
• Smalley Steel Ring (August 2009)
• Circuit City Stores (September 2009)
• Penalties (October 2009)
• Elmhurst Park District (November 2009)
• Interstate Scaffolding (November 2008)
• The Interstate Scaffolding Problem Watts v Ingalls 09IWCC332

The Interstate Scaffolding ProblemWatts v Ingalls 09IWCC332

bull ldquoBut there was no damage to property here as in Interstate Scaffolding There was

no harmful or offensive touching There was no threatening or intimidating behavior There was no assault Without meaning to minimize what happened it was offensive language not conduct and all parties agree it was not aimed directly at Ms Ohern If Ms Greiss had not repeated it to her there would have been no offense taken by Ms OhernhellipThe Arbitrator has closely read and considered the Interstate Scaffolding case which was decided 3-2 and the Arbitrator would prefer more information as suggested in Justice Dixons dissent Would a similar employee who was not on light-duty have been terminated under the same circumstances without one of the less severe steps being taken first This case was tried before Interstate Scaffolding was published and so there is no evidence in the record about that But the majority decision does not require it in any event In the absence of that however it is possible that the respondent merely took advantage of the situation terminated the petitioner and cut off their liability for future TTD benefits In any event the Arbitrator has no jurisdiction to resolve employment disputes He is not empowered by the Interstate Scaffolding case to make inquiries along those lines because apparently it is not considered relevant As indicated above the Arbitrator then feels he has no choice but to follow the Courts leadrdquo

• WCLA MCLE
• Economy Packing (January 2009)
• City of Chicago (February 2009)
• Hagene Settlement KTS (March 2009)
• Chamorro UR (March 2009)
• Legislative Update (April 2009)
• Overtime (May 2009)
• ADA (June 2009)
• Beelman Trucking (July 2009)
• Smalley Steel Ring (August 2009)
• Circuit City Stores (September 2009)
• Penalties (October 2009)
• Elmhurst Park District (November 2009)
• Interstate Scaffolding (November 2008)
• The Interstate Scaffolding Problem Watts v Ingalls 09IWCC332