WCLA MCLE 11-6-2013 Judicial Activism: Nineteen Cases Wednesday November 6, 2013 12:00 pm to 1:00 pm...
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WCLA MCLE 11-6-2013 •Judicial Activism: Nineteen Cases •Wednesday November 6, 2013 •12:00 pm to 1:00 pm •James R. Thompson Center , Chicago, IL •1 Hour General MCLE Credit
WCLA MCLE 11-6-2013 Judicial Activism: Nineteen Cases Wednesday November 6, 2013 12:00 pm to 1:00 pm James R. Thompson Center, Chicago, IL 1 Hour General
WCLA MCLE 11-6-2013 Judicial Activism: Nineteen Cases Wednesday
November 6, 2013 12:00 pm to 1:00 pm James R. Thompson Center,
Chicago, IL 1 Hour General MCLE Credit
Slide 2
General Rule An accident that occurs while an employee is
commuting to or from work does not arise out of and in the course
of employment and is therefore not compensable under the Act.
Commonwealth Edison Co. v. Industrial Commn, 86 Ill. 2d 534, 537-38
(1981); Warren v. Industrial Commn, 61 Ill. 2d 373, 377 (1975). The
rationale for this rule is that the employees trip to and from work
is the result of the employees decision where to live, which is a
matter of no concern to the employer. Martinez v. Industrial Commn,
242 Ill.App. 3d 981, 985 (1993). Nevertheless, there are several
exceptions to this rule. But
Slide 3
Traveling Employee Exception Generally, injuries incurred while
traveling to and from the workplace are not considered to arise out
of and in the course of ones employment. The determination whether
an injury to a traveling employee arose out of and in the course of
employment, however, is governed by different rules than are
applicable to other employees. Venture-Newberg Perini Stone &
Webster v. Illinois Workers Compensation Commn, 2012 IL App (4th)
110847WC. Thus, for instance, a traveling employee is deemed to be
in the course of his employment from the time the employee leaves
home until he or she returns. Cox v. Illinois Workers Compensation
Commn, 406 Ill. App. 3d 541, 545 (2010). Accordingly, we initially
address whether claimant is a traveling employee.
Slide 4
Ronald Daugherty v. The Venture-Newberg 06 WC 018366
Arbitration Decision 4-18-08 DA 3-24-06 Union pipefitter injured in
MVA on way from motel to job site Further, Petitioner was not a
traveling employee of NewbergPetitioner was not required to accept
the Newberg job at the Cordova Plant under the union contract.
Rather it was his voluntary choice to take the job outside local
union territory, which would require travel and temporary
lodging.
Slide 5
Ronald Daugherty v. The Venture-Newberg 10 IWCC 0752 Commission
Decision 8-5-10 (2-1): The Commission views the evidence and
applicable law differently and finds that Petitioner sustained an
accident arising out of and in the course of his employment An
employee will be considered in the course of employment while
traveling to or from work if the course or method of travel is
determined by the demands or exigencies of the job rather than by
his own personal preference as to where he chooses to Another
exception to the general rule is that of the traveling employee.It
has been held that injuries are compensable where traveling
employees were engaged in activities other than those they were
specifically instructed to perform by their employers. A traveling
employee is one who is required to travel away from the employer's
premises in order to perform his job. The key factors to this test
are 'reasonableness' and 'foreseeability of the activity the
employee was performing when he was injured. In the Commission's
view, Petitioner was in the course of his employment while
traveling to work on the date of the accident since the course or
method of travel was determined by the demands or exigencies of the
job, rather than by his own personal preference multiple witnesses,
including Petitioner, testified consistently regarding the
exigencies of the job. Although Respondent did not demand that
Petitioner lodge within a certain distance from the plant in order
to perform the work that was required, Petitioner had to stay, as a
practical matter, a reasonable commuting distance from the plant.
Respondent could not meet its obligations under the General
President's Agreement for Maintenance Contract with Exelon were it
not for the willingness of employees like Petitioner to work long
hours and make themselves available in the event of an
emergency.
Slide 6
The Venure-Newberg-Perini v. IWCC 2010 MR 509 Circuit Court
Seventh Judicial Circuit, Sangamon County, 8-28-11 Undisputed facts
Misapplied the law to the factsdecision of the Commission is
improper as a matter of lawdecision of Arbitrator denying the claim
is reinstated. Not demands of job but personal preference; not a
traveling employee Inequitable and unjust result (What standard of
review is this?)
Slide 7
The Venure-Newberg-Perini v. IWCC 2012 IL App (4 th ) 110847WC
Appellate Court, 12-6-12, 3-2 decision, reverses Circuit Court Our
first question, then, is whether the claimant qualified as a
traveling employee. A "'traveling employee'" is defined as "one who
is required to travel away from his employer's premises in order to
perform his jobIt is undisputed that 1) the claimant in this case
was employed by Venture-Newberg; 2) he was assigned to work at a
nuclear power plant in Cordova, Illinois, operated by Exelon in
excess of 200 miles from his home; and 3) the premises at which the
claimant was assigned to work were not the premises of his
employer. These facts establish the claimant's status as a
traveling employee. (Manifest weight?) The test of whether a
traveling employee's injury arose out of and in the course of his
employment is the reasonableness of the conduct in which he was
engaged at the time of his injury and whether that conduct might
have been anticipated or foreseen by Venture-Newberg The question
is one of fact to be resolved by the Commission, and its
determination should not be disturbed on review unless it is
against the manifest weight of the evidenceIn this case, the
Commission found that Venture-Newberg must have anticipated that
the claimant, recruited to work at Exelon's facility over 200 miles
from the claimant's home, would be required to travel and arrange
for convenient lodging in order to perform the duties of his job,
and that it was reasonable and foreseeable that he would travel a
direct route from the lodge at which he was staying to Exelon's
facility This determination is clearly not against the manifest
weight of the evidence.
Slide 8
Stanislawa Mlynarczyk v. Sophie Obrochta 08WC001595 Facts DA
12-5-07 60 year old janitorial worker Fell on ice and snow in
driveway at home and fractured left arm Husband & wife team
using Respondents unmarked vehicle (facts & circumstances
relating to use of vehicle?) Had completed cleaning assignments and
had gone home for meal (unpaid meal time) Went out again to meet
another cleaning crew for evening assignment
Slide 9
Stanislawa Mlynarczyk v. Sophie Obrochta 08WC001595 Arbitration
Decision Arbitrator Hennessy, 1-26-10 In this case, the employer
supplied a van for transportation so that the Petitioners husband
could drive himself, the Petitioner and other employees to an from
job sitesThe employer clearly benefitted from providing
transportation Becker, 308 Ill.App.3d 278 (1999) (expands the range
of employment by providing means of transportation) She was a
travelling employee and the risk of injury was a risk to which the
Petitioner, by virtue of her employment, was exposed to a greater
degree than the general public. Potenzo, 378 Ill.App.3d113 (2007)
Award for Petitioner: Medical, 54 weeks TTD, 65% loss of hand,
penalties & fees
Slide 10
Stanislawa Mlynarczyk v. Sophie Obrochta 11 IWCC 0747
Commission Decision Unanimous, 7-29-11 (T)he Commission reverses
the Decision of the Arbitrator and finds that Petitioner failed to
prove she sustained accidental injuries arising out of and in the
course of her employment While the Commission does not find
Petitioner to be a traveling employees, it notes that petitioner
had not yet left her property or even entered a vehicle when she
was injured, was not paid for time between jobs or mileage for
travel and was not exposed to any of the risks of a traveling
employee. Even if the Commission found petitioner to be a traveling
employee, it would not circumvent the requirement that the injury
arise out of and in the course of the employment Concern: ANY
movement by Petitioner at any time during the night or day would
lead to a compensable claim
Slide 11
Stanislawa Mlynarczyk v. Sophie Obrochta 11 MR 766 Circuit
Court Decision Will County Circuit Judge Bobbi N. Pentrungaro,
5-16-12 The Decision of the Commission is affirmed. Not a traveling
employee: This finding is not in error (N)ot injured in the course
of employmentnot paid by the employer for their time during this
lunch break.
Slide 12
Mlynarczyk v. IWCC 2013 IL App (3d) 120411WC Appellate Court
Opinion Unanimous, 5-30-13 We reverse the decision of the
Commission and remand the matter to the Commission to reinstate the
arbitrators awards of medical expenses, TTD benefits, and PPD
benefits. With respect to the narrow issue of whether claimant is a
traveling employee, we agree with claimant that the de novo
standard of review applies. In the present case, claimant did not
work at a fixed job site. Rather, her duties required her to travel
to various locations throughout the Chicago land area. As such, we
find that she qualifies as a traveling employee.
Slide 13
Mlynarczyk v. IWCC 2013 IL App (3d) 120411WC Appellate Court
Opinion The test whether a traveling employees injury arose out of
and in the course of employment is the reasonableness of the
conduct in which she was engaged at the time of the injury and
whether that conduct might have been anticipated or foreseen by the
employer manifest weight In this case, the Commission determined
that even if it had found claimant to be a traveling employee, it
would still deny compensation. We conclude that this finding is
against the manifest weight of the evidenceSince claimant is a
traveling employee, her exposure to the hazards of the streets is,
by definition, greater quantitatively than that of the general
public, as long as her conduct at the time of the injury was
reasonable and foreseeable to the employer In so holding, we find
misplaced the Commissions concern that such a holding would render
compensable ANY movement by [claimant] at any time during the day
or night. (Emphasis in original.) The Commission does not explain
why it believes this would be the case, and we note that an
employee seeking benefits under the Act would still be required to
establish that his injury arose out of and in the course of his
employment as well as the reasonableness of the conduct
Slide 14
Kertis v. IWCC 2013 IL App (2d) 120252WC At issue is whether
the claimant's injuries, suffered while he was walking through a
public parking lot en route to the St. Charles office where he
worked, arose out of his employment. The determination of whether
an injury to a traveling employee arose out of and in the course of
employment is governed by different rules than are applicable to
other A "traveling employee" is one whose work requires him to
travel away from his employer's office. It is not necessary for an
individual to be a traveling salesman or a company representative
who covers a large geographic area in order to be considered a
traveling employeeRather, a traveling employee is any employee for
whom travel is an essential element of his employment.A traveling
employee is deemed to be in the course of his employment from the
time that he leaves home until he returnsAn injury sustained by a
traveling employee arises out of his employment if he was injured
while engaging in conduct that was reasonable and foreseeable,
i.e., conduct that "might normally be anticipated or foreseen by
the employer.
Slide 15
Kertis v. IWCC 2013 IL App (2d) 120252WC Thus, travel was
clearly an essential element of the claimant's job, rendering him a
traveling employee as a matter of law Accordingly, the dispositive
question is whether the claimant was injured while engaging in
conduct that was reasonable and that might reasonably be
anticipated or foreseen by the employer. The undisputed evidence
establishes that both of these conditions were satisfiedThe
claimant's job duties required him to travel from the Hoffman
Estates office to the St. Charles office on a regular basis, and
the employer did not provide employee parking at the St. Charles
office. Accordingly, the claimant was required to park on the
street or in a nearby parking lot. It was both reasonable and
foreseeable that the claimant would regularly park in a municipal
parking lot close to the St. Charles office and walk to the office
from that lot. Thus, under the rules applicable to traveling
employees, the undisputed facts establish that the claimant's
injuries arose out of his employment. (U)nder the analysis
applicable to traveling employees, we do not need to address the
claimant's alternative argument that he was exposed to a neutral
risk more frequently than members of the general public by virtue
of his employment.
Slide 16
Jeffrey Cox v. Berger Excavating 06WC050930 DA 7-27-06
Petitioner construction foreman Company pick-up truck Leaves work
early with permission Stops at bank to get money: 1) personal
reason & 2) buy work cooler MVA in intersection shortly before
re-entering Route 12
Slide 17
Jeffrey Cox v. Berger Excavating 06WC050930 (T)he Arbitrator is
not persuaded that the Petitioner had a dual purpose to also
withdraw cash to purchase a cooler for drinks for his crew.
Petitioner's testimony, that he withdrew money to buy a cooler,
lacked credibilityThe Arbitrator notes, however, that even if the
Petitioner had a "dual purpose", it is of no consequence since it
is clear that the detour would have been made anyway (to get cash
to pay the carpenters), regardless of the alleged business purpose,
and would therefore be considered to be "personal". The Arbitrator
finds that the car accident occurred before the Petitioner returned
to the northbound lanes of Route 12. based upon the Arbitrator's
review of the pictures of the area where the accident occurred as
well as Petitioner's own testimony as to the accident. Thus, while
the Petitioner was in the process of returning to his regular route
home not actually returned to that route. However, an employee is
not covered while driving a company vehicle if the employee engages
in a deviation from his employment or a "frolic and detour." Such
actions remove the employee from the course of his employment. An
employee will resume his work-related travel once he re-enters the
course of his employment following a personal deviation.
Slide 18
Cox v. IWCC 406 Ill. App.3d 541 (2010) The claimant argues that
the facts of this case support the proposition that, at the time of
his accident, he was a traveling employee operating a motor vehicle
in a foreseeable manner. A "traveling employee" is one who is
required to travel away from his employers premises in order to
perform his job.Contrary to the Commissions finding, the facts of
this case establish, without question, that the claimant was a
traveling employee.
Slide 19
Cox v. IWCC 406 Ill. App.3d 541 (2010) The determination of
whether an injury to a traveling employee arose out of and in the
course of employment is governed by different rules than are
applicable to other employees. As a general rule, a traveling
employee is held to be in the course of his employment from the
time that he leaves home until he returns. However, a finding that
a claimant is a traveling employee does not relieve him from the
burden of proving that his injury arose out of and in the course of
employment. The test for determining whether an injury to a
traveling employee arose out of and in the course of his employment
is the reasonableness of the conduct in which he was engaged and
whether the conduct might normally be anticipated or foreseen by
the employer.Under such an analysis, a traveling employee may be
compensated for an injury as long as the injury was sustained while
he was engaged in an activity which was both reasonable and
foreseeable.
Slide 20
Cox v. IWCC 406 Ill. App.3d 541 (2010) The real question for
resolution in this case is whether, at the time of his injury, the
claimant was in the course of his employment with Berger. The
Commission found that he was not. We disagree. (U)nless it is
against the manifest weight of the evidence. In such situations,
the transportation is considered to expand the 'in the course of'
element while apparently providing a risk incidental to the
exigencies of employment that satisfy the 'arising out of element.
We believe this evidence is more than sufficient to support the
inference that the claimant went to the bank for personal reasons
and not to withdraw money for any purpose connected to his work.
However, we do not believe that the fact that the claimant deviated
several hundred feet from his route home for personal reasons
necessarily resolves the question of whether his injuries arose out
of and in the course of his employment.
Slide 21
Cox v. IWCC 406 Ill. App.3d 541 (2010) The claimants deviation
from the least circuitous route to his home in order to go to the
bank for personal reasons appears to be insubstantial.Although the
claimant made this slight deviation from his route home in order to
go to the bank, at the time of his accident, he had already made
his withdrawal and was again on his way home. We believe,
therefore, that he had re-entered the course of his employment at
the time of his injury. We reject the Commissions finding that he
had not returned to the course of his employment because he had not
actually returned to his usual route home when he was involved in
the vehicular collision. The proper question is whether the facts
establish that he was on his way home when he was injured. We,
therefore, reverse the judgment of the circuit court, vacate
thedecision of the Commission, and remand this matter to the
Commission for further proceedings consistent with this
decision.
Slide 22
Potenzo v. IWCC 378 Ill.App.3d 113 (2007) Jewel truck driver
injured by unknown assailant while making a delivery at store in
Uptown (4355 N. Sheridan) Arbitrator, IWCC & Circuit Court all
deny benefits Petitioner failed to prove that he suffered an injury
that arose out of his employment Appellate Court reverses: manifest
weight
Slide 23
Potenzo v. IWCC 378 Ill.App.3d 113 (2007) The claimant argues
that, as a traveling employee, he was exposed to all street risks
to a greater degree than the general publicWe agree. (C)laimant was
a traveling employee whose duties required him to travel the
streets and unload a truck in areas accessible to the public. The
risk of being assaulted, although one to which the general public
is exposed, was a risk to which the claimant, by virtue of his
employment, was exposed to a greater degree than the general
public. No personal motive for the attack Activity reasonably
foreseeable by Jewel
Slide 24
Potenzo v. IWCC 378 Ill.App.3d 113 (2007) C.A. Dunham, 16
Ill.2d 102 (1959): P wins; traveling employee killed in plane
explosion set by another passenger Schulteis, 96 Ill.2d 340 (1983):
P loses; not a traveling employee; assaulted at office and failed
to show it was work-related Springfield School District, 293
Ill.App.3d 226 (1997): P wins; traveling(?) security guard bit by
stray dog Heath, 256 Ill.App.3d 1008 (1993): not mentioned by App.
Court; relied on by Arbitrator; P loses; vs. Jewel, store clerk
shot dead by unknown assailant in store
Slide 25
Ruth Lindquist v. Metropolitan Water Reclamation District
06WC000113 DA 11/09/05 Petitioner account clerk Responsible for
making deposits Leaves office to go to bank branch about 1 blocks
away Stumbled on 6 driveway on public sidewalk, fell and fractured
both arms
Slide 26
Ruth Lindquist v. Metropolitan Water Reclamation District
06WC000113 Arbitrator Jutila, 1/24/07 Petitioners claim for
compensation is denied. Parties stipulate to in the course of
Arising out of: Respondent cites Best Foods Anomolous situation:
on-premises (prove less) v. off-premises (prove more) Petitioner
must prove that she was exposed to the hazard to a greater degree
than the general public. Petitioner has failed to prove a greater
degree of exposure to the hazard.
Slide 27
Ruth Lindquist v. Metropolitan Water Reclamation District 08
IWCC 492 Commission Decision, 5/22/08, 2-1 (Mason & Rink,
Lindsay dissenting) After considering the entire record, the
Commission reverses the Decision of the Arbitrator and finds that
Petitioner's accidental fall of November 9, 2005 arose out of her
employment The Arbitrator found that Petitioner's accident did not
arise out of her employment. He acknowledged that Petitioner was
required to make regular trips to the bank on behalf of Respondent
but found, citing Caterpillar that these trips did not place her at
an increased risk of injury.Caterpillar The Commission agrees and
notes that Petitioner's argument finds support in HomerdingIn the
instant case, it is undisputed that Petitioner fell while
performing a required task. It is this fact which distinguishes the
instant case from Caterpillar and Best Foods.HomerdingBest Foods
While the Commission finds it unnecessary to reach the issue of
whether Petitioner was exposed to an "increased risk", it notes
that the claim is also compensable under this alternative analysis.
Petitioner was regularly required to traverse the streets in order
to make deposits on behalf of Respondent and was thus exposed to
the risk of the "dip" in the driveway with greater frequency than
members of the general public. In City of Chicago the Supreme Court
held that "where the proof establishes that the work of the
employee requires him to be on the street to perform the duties of
his employment, the risks of the street become one of the risks of
the employmentCity of Chicago Dissent: Petitioner was injured on a
public street while making a random, one-time delivery. She was not
required by her employer to take the route she chose. She testified
there were no defects or debris where she fell. Furthermore, she
was unsure whether she stumbled or not. While the bank deposits
were in the purse Petitioner was carrying with her, there is
nothing in the record to suggest the purse contributed to her fall.
While her job duties took her to the place of injury that alone
should not be enough to establish liability. The Petitioner was
exposed to no greater risk than that of the general public and
compensation should have been denied.
Slide 28
Metropolitan Water Reclamation District of Greater Chicago v.
IWCC 08 L 050623 Judge James Tolmaire, Circuit Court of Cook
County, 8/24/09 (T)his Court finds the Commissions decision
contrary to law and against the manifest weight of the evidence.
The Commissions decision is reversed. Carterpillar and Best Foods
control Thus the decision of the Commission is contrary to law as
it applied the wrong standard for compensable injuries(1) her
presence at the site of the fall was required in the performance of
her duties and (2) she was exposed to a risk common to the general
public but to a degree greater than other persons. Reliance on
Homerding and City of Chicago is misplaced
Slide 29
Metropolitan Water Reclamation District of Greater Chicago v.
IWCC 407 Ill.App3d 1010 (2011) Hoffman, McCullough, Hoffman &
Stewart; Holdridge specially concurring Based on the record
presented, the manifest weight of the evidence established that the
injuries sustained by the claimant on November 9, 2005, arose out
of and in the course of her employment with the District, and, as a
consequence, she is entitled to benefits under the Act. We,
therefore, reverse the judgment of the circuit court and reinstate
the decision of the Commission which awarded the claimant benefits
under the Act. Accordingly, the risk that the claimant would be
injured as a result of a fall while traversing a public sidewalk
and commercial driveway was neutral in natureSuch an increased risk
may be either qualitative, such as some aspect of the employment
which contributes to the risk, or quantitative, such as when the
employee is exposed to a common risk more frequently than the
general public. Potenzo
Slide 30
Metropolitan Water Reclamation District of Greater Chicago v.
IWCC 407 Ill.App3d 1010 (2011) Under the "street risk" doctrine,
where the evidence establishes that the claimants job requires that
she be on the street to perform the duties of her employment, the
risks of the street become one of risks of the employment, and an
injury sustained while performing that duty has a causal relation
to her employment. Potenzo In such a circumstance, it is presumed
that the claimant is exposed to risks of accidents in the street to
a greater degree than if she had not been employed in such a
capacity, and the claimant will be entitled to benefits under the
Act. City of Chicago. A six-inch "dip" in a commercial driveway is
a street hazard, and, though the risk of tripping and falling on
such a hazard is a risk faced by the public at large, it was a risk
to which the claimant, by virtue to her employment, was exposed to
a greater degree than the general public. Moreover, even if the
claimant were required to present proof that she faced an increased
risk, she has met that burden. she was required to use the public
way in making the bank deposits two or three times each week. The
Commission specifically found that this evidence established that
the claimant was exposed to the risk the "dip" in the driveway with
greater frequency than members of the general public.
Slide 31
Metropolitan Water Reclamation District of Greater Chicago v.
IWCC 407 Ill.App3d 1010 (2011) Holdridge concurring: As this case
is simply one where the Commission found that the claimant was
exposed to risk greater than the general public by virtue of the
number of times she was required by her employment to be exposed to
the sidewalk defect, I see no need to go further with analysis of
the so-called "street risk" doctrine. The doctrine, which is in
essence the "traveling employee" doctrine (See Potenzo), does
nothing to clarify what a claimant must do to establish that his or
her injuries arose out of their employment. (P)articularly
unappealing doctrine because raises a lot of questions
Slide 32
Johnson v. IWCC 2011 IL App (2d) 100418WC Johnson v. IWCC, 2011
IL App (2d) 100418WC: Appellate Court says Will County sheriff was
back in the course of his employment when he was responding to
dispatch in his patrol car, after leaving county to perform
personal errand (Commission had denied benefits 2-1 for personal
deviation) DE NOVO!
Slide 33
Denzil Smothers v. WCFPD 09 WC 04916 DA 6-2-08; 49 year old
heavy equipment operator feels searing pain in right shoulder while
yanking on tailgate Prior injury 5-8-03 (pro se): right lateral
epicondylar reconstruction and right carpal tunnel release; full
duty; no more treatment (04WC022167: 15% arm; 15% hand) Dr. Fuentes
(Parkview) Operative report: superior and anterior labrum debrided;
full thickness tear of anterior portion of supraspinatus tendon;
acromioplasty; rotator cuff was repaired using swivel lock and two
anchors Released by PT to medium/heavy job He readily admits to
performing his full duties, yet has to make significant
modifications because of his shoulder condition Petitioners IME Dr.
Coe
Slide 34
Denzil Smothers v. WCFPD 09 WC 04916 (Arb. Decision 9-9-09 )
Whether Petitioner's injury should be compensated as a partial
disability to the whole person under Section 8(d)(2) of the Act.
Due to the issue of credit, Respondent claims that Mr. Smothers is
entitled only to compensation for a specific, scheduled loss of use
of the right arm under Section 8(e) of the Act? Similar to Guynes
06 IWCC I0883, where the Arbitrator found that Petitioner's
symptoms to her hands caused a permanent change in the manner in
which she performs her job duties. She was a caseworker, who held
the same post injury job as before. An Award of 20% 8(d)(2) for
injuries to the hands was affirmed. Here Petitioner's testimony was
clear, unrebutted and medically corroborated that he had
significant pain and weakness which caused him to do virtually all
work activities left handed, when possible, after attempting to
perform them for short periods of time right hand, thus
significantly altering the manner in which he performs his
duties.Guynes 06 IWCC I0883, The mere fact that Petitioner's
injured body part happens to be one of those enumerated in the 8(e)
schedule, standing alone, does not deprive the Commission of its
authority to award partial disability to the whole person under
8(d)(2). The express, unambiguous terms of 8(d)(2), allow such an
award, where Petitioner has sustained injuries covered by Section
8(e) which partially incapacitate him from pursuing the duties of
his usual and customary line of employment but do not result in an
impairment of earning capacity. 820 ILCS 305/8(d)(2).820 ILCS
305/8(d)(2) General Assembly did not intend 8(e) to impose any
limit upon the Commission's power to award compensation under 8(d).
In General Elec., 89 Ill.2d 432 ("Williamson" case), Supreme Court
reviewed the legislative history and determined that the 1975
amendments were intended to render the 8(e) schedule
non-exclusive.General Elec., 89 Ill.2d 432
Slide 35
Denzil Smothers v. WCFPD 09 WC 04916 (Arb. Decision cont.) In
General Elec. Co., 144 IIl.App.3d 1003, ("Campbell" case), the
Appellate Court expressly followed Williamson, holding that a
claimant whose injuries were sustained after the effective date of
the 1975 statutory amendments may proceed under either 8(d) or
8(e), but not both. In the case at bar, Petitioner clearly
sustained injuries which partially incapacitate him from pursuing
the duties of his usual and customary line of employment but do not
result in an impairment of earning capacity, which is the exact
language of 8(d)(2). In doing some work activities, such as sawing
branches, he can only apply the forces necessary with his left,
non- dominant arm. Other work activities he will begin with his
right arm, but it weakens or tires easily and he will have to then
use his left arm. Either is a partial incapacity within the meaning
of section 8(d)(2), and neither is inconsistent with his full duty
release, as he will perform such duties, albeit with modifications
for the partial incapacity. The Arbitrator Awards 25% partial
disability under Section 8(d)(2). The Arbitrator notes that the
same surgery in the case of a maintenance mechanic, with overhead
restrictions and some loss of earnings, resulted in an Award of 50%
8(d)(2). Clemmons, 04 IIC 0316. Because the Award is under Section
8(d)(2), there is no credit to Respondent under Section 8(e) 17 See
Isaars, 138 Ill. App. 3d 392 (1985). Clemmons, 04 IIC 0316.Isaars,
138 Ill. App. 3d 392 (1985).
Slide 36
Denzil Smothers v. WCFPD & WCFPD v. IWCC & Smothers
Commission : 10 IWCC 00582; unanimous decision; affirmed &
adopted; 7-14-10 Will County Circuit Court: 10 MR 673; Judge Bobbi
N. Petrungaro; 1-3-11 Incorrectly determined that Petitioner was
entitled to MAW as opposed to loss of arm (to which prior credit
would have applied)? Clearly erroneous standard: Citing General
Electric, 89 Ill.2d 432 (1982); Lusietto, 174 Ill. App.3d 121
(1988); McDaneld, 307 Ill.App.3d 1045 (1999), The current trend in
the law is to allow the Commission to choose between Section 8(d)2
or Section 8(e)testimony supportspartially incapacitates Commission
was not clearly erroneous in its application of the facts to the
law. Manifest weight? Record indicates that The Commissions
decision was not against the manifest weight of the evidence.
Slide 37
WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC
Unanimous Appellate Court Opinion On appeal, Respondent argues that
the Commissions award of benefits pursuant to Section8(d)2 was
erroneous. According to Respondent, the record establishes that
Petitioner has returned to work at full duty. Respondent also
points out that Petitioner is under no medical restrictions. Thus,
Respondent reasons, it was improper to award Petitioner benefits
under section 8(d)2 on the basis that Petitioner proved a partial
incapacity from pursuing the duties of his usual and customary line
of employment. Instead, Respondent maintains, the Commission should
have awarded Petitioner benefits for a scheduled loss to the right
arm as set forth in section 8(e)(10). Respondent concedes that the
injury to claimants right shoulder partially incapacitated
himAccording to Respondent, Petitioner failed to establish that
this partial incapacity prevents him from pursuing his usual and
customary line of employment because claimant has returned to work
at full duty resuming all prior job activitiesThe determination of
the extent or permanency of an employees disability is a question
of factmanifest weight ? The Commissions award of benefits Section
8(d)2 on the basis that the injury to claimants right shoulder
partially incapacitate[s] him from pursuing the duties of his usual
and customary line of employment is against the manifest weight of
the evidence. The record simply does not support this finding.
Slide 38
WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC Because
Petitioner has failed to prove entitlement to benefits under the
third Section 8(d)2, we must determine whether PPD benefits are
appropriate under another provision of the Act. Respondent insists
that claimants shoulder injury should be compensated as a scheduled
loss to the right arm under section 8(e)(10). However, Respondents
argument assumes that an injury to the shoulder is an injury to the
arm. Stautory construction because this court has not had occasion
to consider the classification of a shoulder injury (?) Dictionary
definitions: The word arm is defined as the segment of the upper
limb between the shoulder and the elbow; commonly used to mean the
whole superior limb. Stedmans Medical Dictionary 127 (27th ed.
2000); see also Websters Third New International Dictionary
defining arm as a human upper limb *** the part of an arm between
the shoulder and the wrist. This definition clearly indicates that
the shoulder is not part of the arm. Other jurisdictions: MD, IA,
AR, AZ Because the plain and ordinary meaning of the statute
establishes that the arm and the shoulder are distinct parts of the
body, if Petitioner sustained an injury to his shoulder, an award
for a scheduled loss to the arm would be improper.
Slide 39
WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC Here,
the evidence clearly establishes an injury to the shoulder, not to
the arm by reference to surgical report While the injury to
Petitioners right shoulder may impact the use of his arm, the
initial injury was to his shoulder, and a scheduled award for the
loss of use of the right arm would therefore be inappropriate.
Since Petitioners shoulder injury does not qualify as a scheduled
loss to the arm, we turn to other provisions of the Act for
guidance. We find applicable the first subpart of section 8(d)2.
That provision provides for a person-as-a- whole award where the
permanent injuries are not covered by section 8(c) or 8(e) of the
Act. In sum, although we disagree with the Commissions rationale,
we ultimately find that the Commission properly awarded claimant
benefits for an injury to the person as a whole under section8(d)2
of the Act. Accordingly, we affirm the judgment of the circuit
court of Will County, whichconfirmed the decision of the
Commission. Before concluding, we are cognizant that the
applicability of the first subpart of section 8(d)2was not raised
below. We also acknowledge respondents suggestion that any argument
that a shoulder is not an arm for purposes of the statutory
schedule has been waived because claimant didnot raise this issue
at the trial level. In fact, our review of the record indicates
that while the latterissue was not raised before the Commission, it
was raised in front of the circuit court. In any event,waiver is a
rule of administrative convenience. Klein Construction/Illinois
Insurance GuarantyFund v. Workers Compensation Commn, 384 Ill. App.
3d 233, 238 (2008). We may overrideconsiderations of waiver in
furtherance of providing a just result. Klein
Construction/IllinoisInsurance Guaranty Fund, 384 Ill. App. 3d at
238. We also point out that we may affirm a decisionof the
Commission if there is any legal basis in the record to do so,
regardless of whether theCommissions reasoning is correct or
sound
Slide 40
WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC Before
concluding, we are cognizant that the applicability of the first
subpart of section 8(d)2 was not raised below. We also acknowledge
Respondents suggestion that any argument that a shoulder is not an
arm for purposes of the statutory schedule has been waived because
Petitioner did not raise this issue at the trial level. In fact,
our review of the record indicates that while the latter issue was
not raised before the Commission, it was raised in front of the
circuit court. In any event, waiver is a rule of administrative
convenience. Klein Construction, 384 Ill. App. 3d 233 (2008). We
may override considerations of waiver in furtherance of providing a
just result. We also point out that we may affirm a decision of the
Commission if there is any legal basis in the record to do so,
regardless of whether the Commissions reasoning is correct or
sound.
Slide 41
Cassens v. IIC 218 Ill.2d 519 (2006) Respondent files Motion to
Suspend Benefits on 8(d)1 wage- differential award entered 10 years
earlier Appellate Court says 19(h) applies and Commission lacks
jurisdiction after 30 months; no right to re-open under 8(d)1
Supreme Court agrees, no independent right to re-open under 8(d)1
New Section 19(h): 60 months in the case of an award under Section
8(d)1
Slide 42
E.R. Moore v. IWCC 71 Ill.2d 353 (1978) The finding of a
permanent medical disability does not, however, resolve the
question of whether an employee is totally and permanently disabled
within the meaning of section 8(f) of the Workmen's Compensation
Act As noted above, the degree of the disability is dependent upon
the extent to which the medical disability has impaired the
employee's earning capacity or ability to work. Evidence that the
employee has been or is able to earn occasional wages or to perform
certain useful services neither precludes a finding of total
disability nor requires a finding of partial disability. For the
purposes of section 8(f), a person is totally disabled when he
cannot perform any services except those for which no reasonably
stable labor market exists. Conversely, if an employee is qualified
for and capable of obtaining gainful employment without seriously
endangering health or life, such employee is not totally and
permanently disabledThe focus of the Commission's analysis is on
the degree to which the employee's medical disability impairs his
employability. In arriving at its determination, the Commission
must consider the employee's age, experience, training and
capabilities. The initial burden of proving the extent of the
disability is on the employee to show that, as a result of a
work-connected injury, he is unable to perform or obtain regular
and continuous employment for which he is qualified. When, however,
the nature or extent of the disability, coupled with the factors
mentioned above, indicates that the employee cannot perform any
services except those for which no reasonably stable labor market
exists, the Commission may enter an award for total permanent
disability despite the employee's failure to show that work was not
available When the employee has made the above showing, it is
incumbent upon the employer to come forward with evidence to show
not only that the employee is capable of engaging in some type of
regular and continuous employment, but that such employment is
reasonably available. (2 A. Larson, Workmen's Compensation sec.
57.61, at 10 -- 136 to 10 -- 137.) Placing this burden on the
employer is justified in that it is much easier for the employer,
by virtue of his contact with the labor market, to prove the
claimant's employability than it is for the employee to attempt to
prove the universal negative of being totally unemployable. This
burden of proof is somewhat similar to that borne by the employer
who files a petition seeking to modify an award pursuant to section
8(f) (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)).
Slide 43
Sylvia Timms v. CTA 10 WC 020440 DA 3-18-10 51 yo bus operator
struck and killed passenger Spoke with paramedics, CPD an manager
saw that she was shaken up and was given comp psych 4-27-10
administratively separated 5-28-10 began treating with psychologist
Dr. D. Kelley for anxiety disorder 7-120-10 citing Pathfinder,
unrebutted opinion of Dr. Kelley and credible testimony of
Petitioner, Arbitrator finds accident and awards TTD on 19(b)
3-11-11 Commission affirms & adopts on 2-1 vote; dissenter says
Petitioner did not really know what happened 12-20-11 Circuit Court
confirms, Petitioner is credible
Slide 44
CTA v. IWCC 2013 IL App (1 st ) 120253WC At issue is whether
the Commission erred in finding that the claimant established a
compensable psychological injury under the "mental-mental injury"
theory that our supreme court announced in Pathfinder However,
relying upon this court's decision in General Motors Parts Division
168 Ill. App. 3d 678 (1988), the employer argues that a claimant
may recover under Pathfinder only if she proves that a sudden,
severe emotional shock caused her to suffer a psychic injury that
was "immediately apparent.We disagree. As a preliminary matter, we
find General Motors inapposite. The case at bar involves a claim of
psychological injuries stemming from a single, traumatic,
work-related incident. Accordingly, it falls squarely within the
ambit of Pathfinder General Motors, on the other hand, involved a
claim of psychological injuries that appeared to have arisen
gradually from a variety of factors Pathfinder does not compel the
claimant to prove, in addition,that the psychological injury
resulting from the emotional shock was "immediately apparent.Under
Pathfinder, the emotional shock needs to be sudden not the ensuing
psychological injury The Commissions finding that the claimant's
delay in obtaining medical treatment was not a bar to recovery
given her credible testimony and Dr. Kelley's unrebutted
psychological opinion was not against the manifest weight of the
evidence
Slide 45
Ismael Diaz v. Village of Montgomery 07WC040520 DA 5-29-07 28
year old police officer Confronted by subject with gun, toy gun
with orange tip Could not sleep that night and following day began
to feel anxiety 6-1-07 seeks treatment at Rush Copely believing
dehydration, followed up 4 days later at Dryer Clinic and began
treatment for post traumatic stress disorder Arbitrator awards 15%
loss MAW
Slide 46
Ismael Diaz v. Village of Montgomery 07WC040520 Arbitrator
Hennessy, 5-13-10 The records of Dreyer Medical Clinic confirm that
Petitioner's condition of ill-being is causally related to the May,
2007 incident. The records confirm that the incident caused
Petitioner to develop anxiety and panic attacks Subsequent to
Pathfinder, numerous Commission decisions have upheld psychiatric
disability claims for police officers: Meginnis v. Village of
Riverdale Police Department, upholding permanent total disability
award for a police officer who suffered post- traumatic stress
disorder as a result of involvement in a shooting incident; Verkler
v. Village of Bourbonnais, upholding permanent partial disability
award for police dispatcher who suffered post-traumatic stress
disorder after taking a call from a citizen involved in a violent
home invasion incident; Kaminski v. Elgin Police Department,
affirming 50% person as a whole disability award for a police
officer diagnosed with post- traumatic stress disorder subsequent
to involvement in a fatal shooting incident. The Arbitrator
concludes and finds that an accident occurred on May 29, 2007 that
arose out of and in the course of Petitioner's employment by
Respondent.
Slide 47
Ismael Diaz v. Village of Montgomery 11 IWCC 0739 2-1
Commission Decision; July 25, 2011 The Commission hereby reverses
the Arbitrator's decision and finds that Petitioner failed to prove
that he sustained a compensable accident. It is well established
that recovery for psychological disability absent physical trauma
is permitted under the Act. In Pathfinder Pathfinder In finding
that Petitioner failed to prove accident, we rely on General Motors
168 Ill.App.3d 678 (1988 The court rejected the idea that
Pathfinder was meant to be read broadly to include cases involving
any mental disability which can be traced to any nonphysical
traumatic work related incidentThe Commission adopts a more narrow
construction of Pathfinder as expressed in the General Motors
decision. In this case, Petitioner is a police officer and is
trained in weapons training. Petitioner is also trained to handle
encounters with subjects who are considered armed and
dangerous.General Motors 168 Ill.App.3d 678 (1988 In Sole v.
Livingston County, 10 IWCC 1121, the Commission affirmed the
Arbitrator's decision denying benefits to the claimant who worked
as a dispatcher at a 911 call center. The claimant alleged that he
sustained posttraumatic stress disorder after handling a call
involving a residential fire.Sole v. Livingston County, 10 IWCC
1121, In Ushman v. City of Springfield, 08 IWCC 0234, the
Commission affirmed the Arbitrator's finding that Petitioner failed
to prove that he sustained a compensable accident. The claimant, a
police officer, was involved in a chase of a murder suspect who was
considered to be armed and dangerous. The suspect fired his rifle
at the claimant, and the claimant fired three shots at the suspect.
The Arbitrator found that "the occurrence on December 16, 2004
would not be an uncommon event of significantly greater proportion
than that to which he is subjected as a police officer."Ushman v.
City of Springfield, 08 IWCC 0234,
Slide 48
Ismael Diaz v. Village of Montgomery 11 IWCC 0739 (Dissent) I
respectfully disagree with the majority opinion and would affirm
and adopt the Arbitrator's decision. I believe that Petitioner has
established that he sustained compensable psychological injuries,
namely posttraumatic stress disorder. Whether the handgun was a
real gun or a toy gun is immaterial. The subject, at all times, was
treated as armed and dangerous. Not an event that is common or
anticipated in the general working population or among police
officersuncommon event of significantly greater proportion than
what he would otherwise be subjected to in the normal course of his
employment In Kaminski v. Elgin Police Department, 02 WC 30545, the
Commission adopted the Arbitrator's finding that the claimant, a
police officer, sustained compensable accidents on August 25, 2001,
and September 4, 2001. On August 25, 2001, the claimant was
investigating the abduction and sexual assault of a 9 year old boy.
In Verkler v. Village of Bourbonnais, 95 WC 28975, the Commission
affirmed and adopted the Arbitrator's decision awarding
compensation to a claimant who [*15] was a dispatcher for
respondent's police department. The claimant received an emergency
telephone call from a woman who reported that there was an intruder
in her home who was stabbing people, including children. Kane
County Circuit Court confirms IWCC denial (11MR377)
Slide 49
Diaz v. IWCC 2013 IL App (2d) 120294 WC This case requires us
to consider the proof necessary for a claimant to recover in a
workers' compensation claim for a psychological disability in the
absence of a physical injury, a type of case commonly known as a
"mental-mental" claim. The sole issue raised by the claimant in
this appeal is whether, as a police officer, he was improperly held
to a higher standard of proof than workers in other occupations. We
hold, as a matter of law, that the Commission applied the wrong
standard to this claim. Accordingly, we reverse the decision of the
Commission and remand for further proceedings. When there is no
question of inference or weight to be given evidence, and all the
Commission does is apply the law to the undisputed facts, review is
de novo Second, the issue in this case is whether the Commission
held the claimant to a higher standard of proof than is required in
a mental-mental claim. Whether a claimant must prove certain
elements to establish a compensable claim is purely a question of
law and it is therefore reviewed de novo. Commission did not find
that the claimant failed to prove any of the Pathfinder
requirements that he suffered a sudden, severe emotional shock that
was traceable to a definite time and place and that caused his
psychological injury. Instead, the Commission adopted "a more
narrow construction of Pathfinder as expressed in the General
Motors decision." The claimant asserts that the Commission
misapplied General Motors' interpretation of Pathfinder.
Slide 50
Diaz v. IWCC 2013 IL App (2d) 120294 WC Read in context,
General Motors uses the phrase "an uncommon event of significantly
greater proportion or dimension than that to which the employee
would otherwise be subjected in the normal course of employment" to
distinguish compensable claims from a mental disability that arises
from the ordinary job-related stress common to all lines of
employment. Nothing in Pathfinder requires that the "sudden, severe
emotional shock" which must be proved should be considered within
the context of the claimant's occupation or training. The
Commission applied an incorrect standard of proof and failed to
provide compensation to an injured worker in a compensable
mental-mental claim. The claimant suffered a sudden, severe
emotional shock on May 29, 2007, that resulted in his developing
posttraumatic stress disorder. The accident arose out of and in the
course of the claimant's employment, and his condition of ill-being
was causally related to the accident. The psychological harm the
claimant suffered is compensable under the Act.
Slide 51
Diaz v. IWCC 2013 IL App (2d) 120294 WC Dissent I respectfully
dissent In reversing the Commission in this case, the majority
rejects General Motors' interpretation of Pathfinder to the extent
it suggests the determination of whether a sudden, severe emotional
shock occurred must be "considered within the context of the
claimant's occupation or training I believe General Motors is a
fair interpretation of our supreme court's decision in Pathfinder.
The claimant's occupation and training are part of the
circumstances that must be considered in determining whether an
event causing a sudden, severe shock has occurred. Naturally, for
an event to cause sudden, severe shock, it must be out of the
normal work routine; otherwise it would not cause a shock
Additionally, while I agree with the de novo standard of review
used in this case, I note this court utilized the
manifest-weight-of-the-evidence standard of review in a recent
mental-mental case where the facts were undisputed. See Chicago
Transit Authority 2013 IL App (1st) 120253WC I find the court's
application of the different standards of review inconsistent and
disagree with Chicago Transit Authority's reasoning for applying a
manifest-weight-of-the-evidence standard.Chicago Transit Authority
2013 IL App (1st) 120253WC I find the court's application of the
different standards of review inconsistent and disagree with
Chicago Transit Authority's reasoning for applying a
manifest-weight-of-the-evidence standard.
Slide 52
Interstate Scaffolding Facts Union carpenter suffers heat
exhaustion and related head and neck injuries on 7-02-03 Treatment
by Dr. James Young Released to and RTW light duty with Respondent
in 2-05; Petitioner paid TPD Petitioner writes religious slogans on
walls at work in 4-05 (Jesus is the way, the truth and the life
John 14:6) Respondent terminates Petitioners employment on 5-25-05
for defacing company property
Slide 53
Interstate Scaffolding Arbitration Arbitrator Leo Hennessy,
03WC45987, 8-30-05 (tried 6-28-05) (R)estricitons were still in
effect on trial date Parties stipulated to and Respondent given
credit for payment of TTD or maintenance through 5-25-05
Notwithstanding the divisive, conflicting testimony regarding the
arguments and confrontations of May 25, 2005 at the Respondents
place of business and the unusual basis for the termination of the
Petitioner, this Arbitrator finds the Petitioner is not entitled to
temporary total disability benefits subsequent to his termination
of May 25, 2005.
Slide 54
Interstate Scaffolding Commission Unanimous Commission modifies
(Basurto, Rink & Gore), 06IWCC1010, 11-16-06 The Commission
modifies the Decision of the Arbitrator and finds that Petitioner
is entitled to additional TTD from May 25, 2005 through June 28,
2005, a period of 5 weeks, based on the fact that Petitioners
condition had not stabilized as of the June 29, 2005 Arbitrators
hearing.
Slide 55
Interstate Scaffolding Circuit Court Judge Bobbi Petrungaro,
Will County, confirms, 07MR100, 10-2-07 The Commission determined
that the Petitioner was not fired for cause and was on light duty
when terminated by the Respondent employer. The determination of
when recovery or stabilization of condition occurs is a question of
fact to be determined by the Commission, and unless its findings
are contrary to the manifest weight of the evidence, they will not
be set aside on review.
Slide 56
Interstate Scaffolding Appellate Court 3-2 Decision (Grometer,
McCullough, Hoffman) reverses & denies benefits, 385 Ill.App.3d
1040 (2008) Issue: At issue in this case is whether claimant is
entitled to payment of TTD benefits following his termination
Holding: We hold that an employee is not entitled to collect TTD
benefits after he voluntarily removed himself from the work force
for reasons unrelated to his injury. Standard of review: The period
during which a claimant is temporarily totally disabled is a
question of fact for the Commission; therefore, manifest
weight
Slide 57
Interstate Scaffolding Appellate Court Law applied: The
dispositive issue is whether the claimants condition has
stabilized, i.e. whether the claimant has reached MMI. Medical
supports no MMI: Thus, there was sufficient evidence to support the
Commissions finding that claimants condition had not stabilized.
End of story? No: Although we agree that claimant was still
temporarily totally disabled at the time of his termination, the
more interesting aspect of this appeal is whether claimant is
entitled to TTD benefits following his discharge from respondents
employ.
Slide 58
Interstate Scaffolding Appellate Court Summary of findings
below: In confirming the decision of the Commission, the circuit
court stated that the Commission determined that the claimant was
not fired for cause. We find no language to this effect in the
Commissions decision. To the contrary, as respondent conceded
during oral arguments, the arbitrator relied on the claimants
discharge in deciding that claimants discharge in deciding that
claimant was not entitled to TTDThus, the Arbitrator tacitly
concluded that claimants termination was for cause. The Commission
affirmed that portion of the Arbitrators decision. WHAT?
Slide 59
Interstate Scaffolding Appellate Court Case of first
impression?: Nevertheless, the parties have not provided us with
any authority addressing the impact of an employees termination on
his entitlement to TTD benefits subsequent to the date of
dismissal. Appellate Court doesnt really like Respondents cited
non- cooperation cases, including Gallentine: (T)hey are not
directly on point. So what does majority rely on?
Slide 60
Interstate Scaffolding Appellate Court City of Granite City:
Petitioner is not entitled Schmidgall: Petitioner is entitled
Professor Larson summarizes other jurisdictions and finds 2
different approaches Approach 1(volitional act bar): Some
jurisdictions deny compensation to employees who, after resuming
employment following a work related injury, are terminated for
misconduct where the disability played no part in the
discharge(Citing cases from Feds, LA, MS, MI & VA)These courts
reason that an employee should not be rewarded with disability
benefits where the unemployment was not related to the disability
but rather to a volitional act over which the employee exercised
some control.
Slide 61
Interstate Scaffolding Appellate Court Approach 2 (proximate
cause): Other jurisdictions hold that an employees discharge from
light-duty work for misconduct unrelated to his disability does not
automatically bar the employee from receiving disability benefits.
These courts allow the employee to collect benefits if he can
establish that the work-related disability hampers the employees
ability to obtain or hold new employment(Citing cases from NJ, NC
& MN)causal connection between the wages lost and the
injury...loss in wages was proximately caused by the injury.
Slide 62
Interstate Scaffolding Appellate Court So, which Approach does
Appellate Court favor? Approach 1 (volitional act bar): We find
that allowing an employee to collect TTD from his employer after he
was removed from the work force as a result of a volitional conduct
unrelated to his injury would not advance the goal of compensating
an employee for a work- related injury. Instead, it would provide a
windfall Comports with Granite City & Schmidgall: in that it
focuses on the reason the employee was removed from the work
force
Slide 63
Interstate Scaffolding Appellate Court Applying Approach 1
(volitional act bar) to this case Claimant tacitly conceded that he
was removed from the work force as a result of volitional acts
unrelated to his employment Simply stated, but for his conduct in
defacing respondents property, claimant would have continued
receiving TTD benefits until his condition stabilized Oops!
Petitioner was not receiving TTD benefits at the time of his
termination! During oral arguments, we were advised that at the
time that claimant was employed in the light-duty position, he was
receiving a salary from respondent as well as a separate benefit
from respondents insurance carrier.
Slide 64
Interstate Scaffolding Appellate Court (Dissent) Donovan &
Holdridge The majority has announced a new principle which provides
that temporary disability benefits may be discontinued where an
employee upon returning to work light duty or to a rehabilitation
assignment, is terminated from the work force as a result of his
volitional acts of conduct (or misconduct) that are unrelated to
his disabling condition. Though I accept the general principle, I
cannot join in the remainder of the decision because the majority
provides no standards for practical application of the newly
announced principle. In addition, I disagree with the outright
reversal of the Commissions decision.
Slide 65
Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010) In
this appeal we are asked to consider whether an employers
obligation to pay temporary total disability (TTD) workers
compensation benefits to an employee who was injured in the course
of his employment ceases when the employer terminates the employee
for conduct unrelated to the injury. We permitted the Illinois
Trial Lawyers Association and the Illinois AFL-CIO to file amicus
curiae briefs in support of Urban. In addition, the Illinois
Association of Defense Trial Counsel and the Illinois Self Insurers
Association were permitted to file amicus curiae briefs on behalf
of Interstate.
Slide 66
Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010)
Thus, the issue before us is one of lawwhether an employers
obligation to pay temporary total disability benefits to an
employee who suffered a work-related injury ends if the employee
returns to work for a light-duty assignment and, while working
light duty, is terminated for conduct unrelated to his injury. Our
review, therefore, is de novo. It is a well-settled principle that
when a claimant seeks TTD benefits, the dispositive inquiry is
whether the claimants condition has stabilized, i.e., whether the
claimant has reached maximum medical improvement. We have reviewed
the appellate court judgment and find that neither the majority nor
the dissent has reached the correct conclusion on the issue before
this court.
Slide 67
Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010)
Looking to the Act, we find that no reasonable construction of its
provisions supports a finding that TTD benefits may be denied an
employee who remains injured, yet has been discharged by his
employer for volitional conduct unrelated to his injury. A thorough
examination of the Act reveals that it contains no provision for
the denial, suspension, or termination of TTD benefits as a result
of an employees discharge by his employer. Nor does the Act
condition TTD benefits on whether there has been cause for the
employees dismissal. Such an inquiry is foreign to the Illinois
workers compensation system. The appellate court found that
permitting the termination of benefits to an employee who is
justifiably discharged comports with the [position] taken in
Granite City and Schmidgall. We disagree.
Slide 68
Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010)
For the reasons stated above, we hold that an employers obligation
to pay TTD benefits to an injured employee does not cease because
the employee had been dischargedwhether or not the discharge was
for cause. When an injured employee has been discharged by his
employer, the determinative inquiry for deciding entitlement to TTD
benefits remains, as always, whether the claimants condition has
stabilized. If the injured employee is able to show that he
continues to be temporarily totally disabled as a result of his
work-related injury, the employee is entitled to TTD benefits.
Slide 69
J.S. Masonry 369 Ill.App.3d 591, 861 N.E.2d 202 (2007)
Petitioner bricklayer fell from scaffold and sustained multiple
injuries Respondent alleged that Petitioner had violated safety
rule by failing to pin gate Arbitrator Peiler denied benefits due
to violation of safety rule (no arising out of) Unanimous
Commission (Akemann, Pigott, Rink) reverses and awards medical and
TTD Even if Petitioner violated a safety rule, he was still
performing his work tasks at the time of the incident
Slide 70
J.S. Masonry (Appellate Court) 369 Ill.App. 3d 591 (2006)
Circuit Court confirms Unanimous Appellate Court affirms Respondent
argues that Commission erred as a matter of law that Petitioners
injuries arose out of his employment because failure to fasten the
safety gate was a violation of rules and took Petitioner out of the
scope of his employment Respondent relies on Saunders: riding on
forklift to get lunch Petitioner relies on Chadwick: failure to use
safety belt
Slide 71
J.S. Masonry (Appellate Court) 369 Ill.App. 3d 591 (2006) The
Petitioner was performing duties for which he was hired; although
he may have been performing his duties in a negligent manner, he
was doing exactly the thing he was employed to do; without regard
to the factual dispute as to whether he violated a company rule 5
month delay in shoulder complaints not contrary to the manifest
weight of the evidence, despite lack of explicit causation opinion
TTD award not contrary to the manifest weight of the evidence
despite lack of off-work slips
Slide 72
Clinton Dwyer v. Circuit City Stores 05WC012173 DA 3/6/2005
Petitioner 21 yo installation worker Co-worker asks for help to get
stuck item from vending machine next to break room Petitioner body
checked machine and fractured right hip requiring surgery Store
director testified that she knew of problems with the machine, knew
that employees used it and that Petitioner did not receive
reprimand for violation of rule by shaking machine
Slide 73
Arbitration Decision 05WC012173 Arbitrator Andros in Woodstock
Tried 6/8/06 and decision entered 9/22/06 Medical $60K; TTD 12 3/7
weeks (as stipulated); 35% loss right leg The true issue is whether
the personal comfort doctrine applies Cites Eagle Discount and Ill.
Cons. Tel. It is the finding of the Arbitrator that the action of
the Petitioner was not so outrageous or unusual in that people, who
encounter vending machines that hang up the desired product, jostle
the machine to get the product.
Slide 74
Commission Decision 07IWCC1483 November 14, 2007 Commissioners
DeMunno & Gore affirm and adopt Commissioner Basurto dissents:
The personal comfort doctrine is intended for the petitioner's
personal comfort. In this instance, the petitioner was not on
break, nor was he purchasing an item from the vending machine. He
was helping a coworker retrieve chips from the machine. It was not
his personal comfort. Therefore, in order to find this compensable,
the personal comfort doctrine must be extended to encompass the
personal comfort of third parties. Assuming, that one makes that
leap, his actions were unreasonable and unforeseeable.
Slide 75
Circuit Court Decision 07 MR 360 July 10, 2008 Circuit Court of
McHenry County, Honorable Maureen P. McIntyre, presiding Commission
decision set aside, reversed and dismissed In the course of
contrary to the manifest weight: personal comfort does not apply to
co-workers Arising out of contrary to manifest weight(?): no
increased risk; chose to hit/check the machine
Slide 76
Appellate Court Decision Circuit City Stores v. IWCC 391
Ill.App.3d 913, 909 N.E.2d 983, 330 Ill.Dec. 961 July 14, 2009
(modified and rehearing denied) Justices Holdridge, McCullough,
Hoffman, Hudson and Donovan Circuit Court reversed and Commission
decision reinstated Personal comfort addresses only the in the
course of element The Commission's finding that Dwyer's injury
arose out of his employment is not contrary to law. Regarding the
manifest weight of the evidence, there is no question that Circuit
City provided the vending machine for use by its employees. Under
these circumstances, a rational trier of fact could have found that
the injury originated in a risk incidental to his employmentthus
creating the requisite causal connection. Accordingly, the
Commission's finding on this matter is not against the manifest
weight of the evidence.
Slide 77
Appellate Court Decision Circuit City Stores v. IWCC 391
Ill.App.3d 913, 909 N.E.2d 983, 330 Ill.Dec. 961 As for the in the
course of requirement, the Commission found that Dwyer's injury
qualified under the personal comfort doctrine. That finding is
contrary to law. By its own terms, the personal comfort doctrine
applies to employees who sustain injuries while seeking their own
personal comfort (Jessica Hubner in the instant case, not Dwyer).
The doctrine has never been applied, and does not apply, to
injuries sustained by an employee while assisting a coworker who is
seeking personal comfort. We need not belabor this point because a
separate doctrine, the so- called good Samaritan doctrine, is
applicable instead. In light of this evidence, it was reasonably
foreseeable that an employee might ask a coworker for assistance to
dislodge a product from the machine. It was also reasonably
foreseeable that the coworker would come to the aid of a fellow
employee. The remaining question, then, is whether Dwyer's manner
of rendering aid crossed the line of foreseeability and thus took
him outside the scope of his employment.
Slide 78
Johnson v. IWCC 2011 Il App (2d) 100418WC Johnson v. IWCC,
8-15-2011: Appellate Court says Will County sheriff was back in the
course of his employment when he was responding to dispatch in his
patrol car, after leaving county to perform personal errand
Commission had denied benefits 2-1 for personal deviation,
reversing Arbitrator De Novo standard?
Slide 79
Peoria County Bellwood v. IIC 115 Ill.2d 524 (1987) The more
narrow issue presented in this appeal is what is meant by the term
"accidental injury" within the meaning of the Act. In the instant
case, the claimant was found to have presented sufficient medical
evidence to establish that her injury was work related. We do not
believe that finding is against the manifest weight of the
evidence. However, whether the claimant's injury is "accidental" is
the crux of this case. We believe that the purpose behind the
Workers' Compensation Act is best served by allowing compensation
in a case like the instant one where an injury has been shown to be
caused by the performance of the claimant's job and has developed
gradually over a period of time, without requiring complete
dysfunction. In order to achieve this result we believe the case of
International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d
84, and that line of cases following International Harvester,
should be interpreted so as to include a case like the instant one.
We do not believe that in so doing we are partaking in judicial
legislation; rather we are engaging in necessary and proper
judicial statutory interpretation so as to implement the purpose of
the Workers' Compensation Act.International Harvester Co. v.
Industrial Com. (1973), 56 Ill. 2d 84 The Workers' Compensation Act
was intended to provide financial protection for injured workers
regardless of a showing of negligence or contributory negligence,
while precluding the employee from common law tort remedies. To
that end, it has been consistently held that the Act should be
liberally construed to accomplish its purpose and objects.
Requiring complete collapse in a case like the instant one would
not be beneficial to the employee or the employer because it might
force employees needing the protection of the Act to push their
bodies to a precise moment of collapse. Simply because an
employee's work-related injury is gradual, rather than sudden and
completely disabling, should not preclude protection and benefits.
The Act was intended to compensate workers who have been injured as
a result of their employment. To deny an employee benefits for a
work-related injury that is not the result of a sudden mishap or
completely disabling penalizes an employee who faithfully performs
job duties despite bodily discomfort and damage. As the appellate
court correctly stated, an employee who alleges injury based on
repetitive trauma must still meet the same standard of proof as
other claimants alleging an accidental injury. There must be a
showing that the injury is work related and not the result of a
normal degenerative aging process.
Slide 80
Durand v. IIC 224 Ill.2d 53 (2006) Policy administrator at
insurance company alleges carpal tunnel syndrome 01/29/98: problems
September/October 97 No treatment, no lost time until 08/15/00: 1
st MD visit, 1.5 years of symptoms 09/08/00: positive EMG 11/06/00:
IME Dr. Pomerance, no causation 11/29/00: Orthopedic consult
01/12/01: Application filed, DA 9/8/00 02/12/01 & 06/04/01:
surgeries 05/09/02: Arbitration hearing
Slide 81
Durand Arbitration Petitioners case: her own testimony;
treating records; expert testimony from examining doctor Dr. Robert
Martin Respondents case: Petitioners supervisor; IME Dr. Pomerance
testimony Arbitrator Neal awards benefits: $16,000 medical; 9 5/7
weeks TTD; 15% loss of use of each hand; total $33,257.16 Based on
treating records, Dr. Martins testimony, unpersuasive testimony of
supervisor and Dr. Pomerance SOL defense rejected: Although
Petitioner had experienced CTS symptoms well before 09/08/00, that
was the first time she was officially diagnosed
Slide 82
Durand Commission 2 (Akemann & Serkland) to 1(Sherman)
decision reverses Arbitrator Petitioner failed to file her
Application within the Statute of Limitations September/October
1997 is the date of accident/manifestation date (!!!) fact of the
injury and its causal relationship to her employment was plainly
apparent to the Petitioner and to a reasonable person alike
Shermans dissent: this penalizes a diligent worker
Slide 83
Durand Appellate Court Circuit Court Peoria County (Judge
Barra) confirms 3(Hoffman, McCullough, Callum) to 2(Holdridge,
Donovan) affirms SOL bar Manifest weight of the evidence Petitioner
was of the belief that she had CTS and that it was job- related in
1997 Dissent: belief is not the same thing as being plainly
apparent
Slide 84
Durand v. IIC (Supreme Court) 224 Ill.2d 53 (2006) 4
(Fitzgerald et al.) to 2 (Garman, Karmeier) reverses Appellate
Court and Commission An employee suffering from RSI must point to a
date within the limitations period on which both (1) the injury and
(2) its causal link to the employees work became plainly apparent
to a reasonable person Review of previous case law: typically
either the date on which the employee requires medical treatment or
the date on which the employee can no longer perform work
activities Was the date chosen by the Commission contrary to the
manifest weight of the evidence? Yes.
Slide 85
Durand v. IIC (Supreme Court) 224 Ill.2d 53 (2006) Petitioner
herself was not sure Dr. Pomerance noted gradual onset Dr. Martin
did not use legal standard for manifestation date Petitioner would
have had a hard time proving September/October 1997 Reasonable
person would not have known of the injury or its putative
relationship to the employment before receiving medical treatment
Dissent: it was actually apparent to her, this is enough for
manifest weight
Slide 86
Sisbro v. IIC 207 Ill. 2d 193 (2003) Reverses Appellate Court:
We disagree. Aggravation of pre-existing condition To obtain
compensation under the Act, a claimant bears the burden of showing,
by a preponderance of the evidence, that he has suffered a
disabling injury which arose out of and in the course of his
employment It has long been recognized that, in preexisting
condition cases, recovery will depend on the employee's ability to
show that a work-related accidental injury aggravated or
accelerated the preexisting disease such that the employee's
current condition of ill-being can be said to have been
causally-connected to the work-related injury and not simply the
result of a normal degenerative process of the preexisting
condition. need not be the sole causative factor, nor even the
primary causative factor, as long as it was a causative factor
Normal daily activity exception: still a defense? IIC follows law:
Denbow 03IIC440; Crader 03IIC599
Slide 87
Vogel v. IIC 354 Ill.App.3d 780 (2005) DA:7-10-98; Fusion
3-12-99; MVA 6-9-99; RTW 3-13-00; MVA 4-17-00 & 6-18-00 Treater
Boury:MVA aggravated condition IME Skaletsky: biological reasons
App. Ct.: When a claimants condition is weakened by a work-related
accident, a subsequent accident that aggravates the condition does
not break the causal chain