2011 Illinois Appellate Court Case Synopses:

United Airlines v. IWCC, Qdex 2011-2-01

"Disability" for purposes of a §8(d)1 wage diminution award means physical or mental disability, not economic disability.

Tower v. IWCC, Qdex 2011-2-02 

Employer liability to reimburse medical expenses is limited to amount actually paid to service providers by employee's spouse's group insurance.  (Justice Stewart dissenting).

Overtime hours are to be included in an employee’s average weekly wage calculation if the number of extra hours worked is consistent OR if the employee is required to work the extra hours as a condition of his/her employment.

Metropolitan Water Reclamation District v. IWCC, Qdex 2011-2-03

Pursuant to the "street risk" doctrine, when an employee is required to be on public streets to perform her work duties, risks of the street become risks of the employment and it is presumed that she is exposed to those street risks to a greater degree than is the general public. (Justice Holdridge specially concurring finding this employee met her burden of proof as to accident but arguing against the "presumption" language).

Sanchez v. Rental Service Corporation, Qdex 2011-2-04

Pursuant to §5(b), an employer is entitled to a lien against a third party recovery for the full amount of WC benefits paid, regardless of whether the benefits were paid by its (now liquidated) insurance carrier or by the Insurance Guaranty Fund.

Mulligan v. IWCC, Qdex 2011-2-05 

§12 requires that an MD’s written report be furnished to the opposing party at least 48 hours prior to the date “set for hearing” or else the MD’s testimony is inadmissible. The purpose of this section is to prevent surprise medical evidence at hearing. To that end, the “set for hearing” date is the first hearing date, regardless of whether there are additional hearings thereafter. Further, the 48-hour rule applies to all MDs, whether they were treating or examining MDs or whether they performed a physical exam or merely a records review. The proponent of the medical evidence has the burden of proof to establish compliance with §12.

City of Chicago v. IWCC, Qdex 2011-2-06

In a consolidated case where the petitioner has suffered 2 accidents injuring the same body part, he must present sufficient evidence to establish which portion of the current disability is related to which accident in order to receive 2 permanency awards.

Bureaucratic inefficiencies are not a defense against penalties when it is acknowledged that the petitioner is owed wage differential benefits but they are not paid due to the employer’s bureaucratic inefficiencies.

Baumgardner v. IWCC, Qdex 2011-2-07

In a consolidated case where the petitioner has suffered 2 accidents injuring the same body part, it is proper for the Commission to consider all of the evidence presented to determine the nature and extent of the disability as of the date of the hearing and to enter a single award based on the condition as it exists on the hearing date.

Elgin Board of Education v. IWCC, Qdex 2011-2-08 

Average weekly wage: A teacher’s average weekly wage is determined by dividing her salary by the weeks worked. It is not relevant that she had an “annual” contract or that she opted to be paid over the calendar year instead of over the 40-week school year. Rather the second method of determining average weekly wage pursuant to §10 applies; accordingly her annual salary should be divided by the weeks worked.

§8(j) credit: Petitioner received her full salary while TTD by using her accumulated sick pay. The use of this sick pay impacted her retirement benefits and the Commission denied respondent §8(j) credit finding that pursuant to Tee-Pak, these were benefits that could have been used even if the lost time was not related to a work injury, therefore no credit was allowed. The Appellate Court distinguished Tee-Pak finding that in Tee-Pak, there was evidence the employer intended its employees to collect both TTD and salary whereas no such policy exists in this case. Therefore the §8(j) limitation to credit does not apply in this case and respondent was allowed credit for salary paid to the extent of its TTD liability. (Justice Holdridge dissenting).

Baldwin v. IWCC, Qdex 2011-2-09 

Review Perfection: Substantial compliance with the procedural requirements of §19(f)(1) confers subjective matter jurisdiction to the Circuit Court.  The employee filed 2 separate claims that were consolidated for hearing at arbitration and both the Arbitrator and Commission filed 2 decisions. The employee appealed but requested only one summons, although both case numbers were properly cited and all other procedural requirements were met. Absent a showing of prejudice, substantial compliance was sufficient to confer jurisdiction.

The Commission’s finding that petitioner failed to meet her burden of proof to establish an unexplained fall and then an idiopathic fall arose out of the employment was affirmed as it was not against the manifest weight of the evidence.

Absolute Cleaning v. IWCC, Qdex 2011-2-10 

Whether a medical referral from a treating doctor to another doctor was valid is a question of fact for the Commission whose decision will not be overturned on review unless it is against the manifest weight of the evidence.   Further, the origin of the referral (for instance, the doctor was recommended by petitioner’s attorney) does not matter as long the employee’s treating doctor ultimately made the referral.

Country Insurance and Financial Services v. Roberts, Qdex 2011-2-11

Jurisdiction to decide allegations of fraud against an employee involved in a WC suit lies with the Commission when the resolution of the allegations turns on questions of fact, as opposed to law. In this case, the various fraud theories presented questions of fact (petitioner's employment relationships; whether he had sustained a work accident and, if so, the nature of the injury; his representations to medical personnel).  Accordingly, jurisdiction rests with the Commission, not the Circuit Court

Johnson v. IWCC, Qdex 2011-2-12 

The Commission held that a deputy sheriff’s failure to obtain permission to run a personal errand outside his assigned patrol area, his failure to inform dispatch and another deputy that he was outside his patrol area when he was ordered to assist the other deputy and his speeding through an intersection to reach the deputy in a timely manner in order to cover-up his rule violation took petitioner outside the scope of his employment. It further held that his misconduct, and not a risk of the employment, was the cause of the high-speed auto accident

Applying the de novo standard of review to the undisputed facts, the Appellate Court reversed finding that the rule violation was insufficient to take petitioner out of the scope of his employment and that, as he was acting on a direct order to assist the other deputy when the accident occurred, the accident was due to a risk of the employment.  Accordingly, the accident arose out of and in the course of the employment. (Justices McCullough & Hudson dissenting).

Richter v. Village of Oak Brook, Qdex 2011-2-13 

An order of the Commission approving a settlement contract is a final adjudication of all matters in dispute up to the time of agreement and qualifies as a judgment on the merits such that the res judicata doctrine of collateral estoppel applies to the matters addressed in the contract.

Gross v. IWCC, Qdex 2011-2-14 

An expert witness’ opinion, in this case an examining MD, must be supported by facts and is only as valid as the facts upon which it is based.  The proponent of the expert testimony must lay a foundation that is sufficient to establish the basis for the expert's opinion.  If the expert's opinion is based on a guess or surmise, it is too speculative to be reliable.

Otto Baum Company v. IWCC, Qdex 2011-2-15

Petitioner had repeatedly refused respondent’s prior offers of restricted duty work.  He then presented himself to respondent for restricted duty but this time respondent did not offer it. The Commission awarded TTD benefits for this period of time and respondent appealed arguing the clearly erroneous standard of review should be applied.  The clearly erroneous standard of review applies to the review of an administrative agency's decision that involves mixed questions of law and fact.  However, the Supreme Court has never applied this standard to decisions of the Workers' Compensation Commission.  Further, it has held that whether a petitioner is entitled to TTD for any given period of time is a question of fact subject to the manifest weight standard of review.  Based on the Supreme Court's approach, the manifest weight standard was applied to the Commission’s award of TTD benefits which was affirmed.

Shafer v. IWCC, Qdex 2011-2-16 

A clerical error on the Petition for Review does not deprive the Commission of jurisdiction. Substantial compliance with the Act and the Rules governing procedures before the Commission is sufficient where, as here, the Act does not specifically require a particular form for the petition, the petition was timely filed, it was otherwise properly drafted and both the opposing party and the Commission were put on notice as to the case being appealed.

Mason v. John Boos & Co, Qdex 2011-2-17 

Failure of an employee leasing company to register with the Department of Insurance in violation of the Employee Leasing Act does not deprive the borrowing or loaning employers of the exclusive remedy provisions of the WC Act when, as here, the respondent had adequate WC insurance, the employee opted to pursue a claim under the WC Act and entered into a settlement contract thereby releasing any common law claims.

2011 Supreme Court Synopses: None issued