Case name: Cramer v. Viacom Outdoor, 17 (ILWCLB 225 (Ill.W.C.Comm 2009).
Cramer, a sales assistant for the defendant, fractured her left arm at an employer-sponsored charity bowling event when she slipped and fell on a bowling lane. Cramer had workerd at the office until 1:30 p.m. and then departed for the event a a local bowling alley.
She was paid her regular wages for the time she attended the event. Evidence was presented by the defendant that if Cramer had not attended, she still would have been paid her regular wages, provided she performed her regular office duties.
Cramer testified that she felt pressured to attend the event. The human resources manager testified that employees were not ordered or assigned to attend the event. The arbitrator denied benefits pursuant to Secion 11 of the Illinois Workers' Compensation Act.
]]> The exclusionary language in Section 11 does not apply in the event that the injured employee was ordered or assigned by the employer to participate in the recreational program. In this case, employees were encouraged to participate and support the event. Cramer testified she felt pressure to attend. However, there was no evidence that employees were ordered or assigned to attend the event. Indeed, the attendance record shows that 10 of the 36 employee staff did not sign up to attend the event although they did make a donation. There was no evidene presented that any of the employees who did not attend the event were disciplined or discriminated against in any way by the company. Additionally, there was no evidence of employer conduct from which the arbitrator could infer a "constructive elimination" of the empoloyee's choice of whether to participate in the event. The arbitrator concluded that the element of choice of whether to participate in the event remained with Cramer.Upon review the Illinois Workers' Compensation Commissino affirmed and adopted the decision of the arbitrator.
]]>Case name: Goolsbey v. Rockford Memorial Hosptial, 17 ILWCLB 224 (Ill.W.C.Comm.2009)
Goolsby, a hospital employee, testified that she was walking down a hallway shen she suddenly fell. Two visitors were walking in front of her at the time and came back to assist her. Goolsby testified that it felt like her foot caught on something. She does not know which foot got sutck. She testified that she was not rushing at the time of the incident, she did not know what caused her to fall, and she did not notice anything that would have caused her to fall.
A couple of weeks after the incident she went back to look at the area to determine what could have caused the incident. She testified that there appeared to be dimpling of the tile in the area where she fell and believed this could have caused her accident. The hallway was open to the general public. A nurse testifed that she came to assist Goolsby immediately after the fall and did not see any subtance on the floor or defect in the surface of the floor.
]]> A maintenance superviosr testifed that the floor had not been waxed, finished or burnished at any time around the date of the accident. As Goolsby failed to prove she sustained injuries arising out of and in the course of her employment, the arbitrator denied benefits. The Commission modified the decision to find the accident occurred in the course of employment, and otherwise affirmed and adopted.Goolsby admitted there was no slippery substance on the floor that caused her to fall. Although she was carrying a beeper and few sheets of paper, she admitted that carrying these items did not cause her accident. no witness tetified to a problem or defect with the floor. According to a security officer, Goolsby stated that she simply lost her footing. Goolsby's testimony that she returned to the accident scene a couple of weeks after the fall to figure out what could have happened constitutes mere speculation and conjecture. Accordingly, Goolsby failed to meet her burden of proving the injury arose out of her employment.
]]>Case name: Owens v. United Parcel Services Inc., 17 IlWCLB 215 (Ill.W.C.Comm.2009).
Owens was hired as a driver's helper for the defendant for the holiday season from November 2006 through December 31, 2006. On Dec. 14, 2006, Owens was delivering a package for work when he slipped on a step and fell forward, hitting the inside of his right knee on a wooden deck. He was diagnosed with a right knee contusion and sprain and was prescribed medication and a knee brace. On April 10, 2007, Owens sprained his right ankle when he stepped off a sidewalk and into a grass covered hole. The arbitrator awarded benefits. Upon review, the Illinois Workers' Compensation Commission modified the arbitrator's decision to find that the April 2007 incident was a significant enough event to constitute an intervening accident that broke the causation chain between the Dec 14, 2006, work accident and Owens present condition of ill-being. In so finding, the Commission relied on the mechanism of the accidents, the doctors' foundational knowledge of the events and Wise's overall credibility. As such, the Commission reduced the benefit award.
]]> Owen's medical records from Jan. 8, 2007, showed that Owens was experiencing right knee pain, occasional giving out, and tenderness at the medial aspect of the right knee, but that there was no swelling. By the Jan 12. 2007, the doctor noted that there was much less tenderness and that Owens had a very difficult time pinpointing an area of pain. He opined that Wise's condtion would resolve in two weeks and discharged Wise from his care. Based on this evidence, the Commission determined that Wise's pain was lessening and he was on his way to recovery.Although Wise's treating doctor opined that Wise's symptoms after April 2007, were due to the work accident, the Commission found the doctor did not have a complete and thorough understanding of Wise's medical history. As the doctor could not properly attribute Wise's current condition to the work accident, the Commission discounted and placed little weight on his causation opinion.
In contrast, the defendant's examining doctor was provided with a complete set of Wise's medical records, along with a medical history as provided by Wise. Based on the information, the examining doctor opined that Wise's current condition of ill-being and the need for surgery arises from the April 2007 accident. Specifically, the doctor found that the twisting of Wise's ankle in April 2007 was the type of mechanism that one would expect to see in a medial meniscus tear injury. Given the doctor's complete understanding of what occurred, the Commisison relied on the examining doctor's causation opinion.
]]>Case name: Wise v. Maine Township HSD No. 207, 17 ILWCLB 220 (Ill.W.C.Comm. 2009).
Based on the testimony of a vocational rehabilitation consultant, the arbitrator found that Wise was not entitled to an award of permanent total disability under Section 8(f). The consultant found there was a stable labor market for Wise with potential earnings between $8 and $10 per hour. The arbitrator found that Wise was in good physical condition after the work inijury, was capable of performing medium-level work, and was no longer under medical care. The arbitrator also found that Wise did not conduct a diligent job search and that both vocational counselors identified an amount that Wise could earn after the injury.
]]> The arbitrator denied permanent total disability benefits and awarded wage differential benefits under Section 8(d)1. On appeal, the Illinois Workers' Compensation Commission vacated the arbitrator's wage differential award, finding an award of permanency was premature. Rather, the Commission found that Wise appeared to be a suitable candidate for vocational rehabilitation and training, which was not adequately explored by the parties.The Commission agreed with the arbitrator that Wise was employable and had transferable skills which were identified by the consultant. Based on the opinions of the consultant, along with the labor market survey, Wise may be capable of earning more than $10 per hour. In the Commission's view, Wise was employable and may benefit from additional vocational rehabilitation services as recommended by both testifying vocational consultants. A retraining program would likely make Wise more marketable and increase his earning capacity.
]]>Roby Ziegler, press secretary for the Illinois Attorney General's Office says that the only issue addressed in this case is whether past due child support could be deducted from a workers' compensation award or settlement. There are no other cases addressing this issue.
Under the Illinois Workers' Compensation Act, a debtor cannot place a lien against a settlment or award. Ziegler points out that in this situation , the word "lien" is too broad.
Frank Bartholomew fathered his son with Elizabeth Black. He subsequently signed a paternity agreement with Black.
The trial court decided that Bartholomew could not dissipate any of his workers' compensation settlement without a court order. It awarded Black twenty percent of the net settlement and reached a conclusion that Bartholomew still owed over $6,000 in child support.
The court distributed the proceeds of Bartholomew's workers' compensation case, paying black $20,474 and placing $9,217 in a trust that would go toward child support arrearage and any interest accrued.
Bartholomew disagreed and filed an appeal. His contention was that " a request for payment of an arrearage pursuant to a child support lien for payment of a past due support obligation is a debt that is barred from collection from his compensation settlement."
Bartholomew cited the provision of the Illinois Workers' Compensation Compensation Act that bars liens, debts, penalties or damages.
The Appellate court disagreed with Bartholomew stating that Illinois' child support statutes contained an exception in colelction of child suppoprt payment
]]>The case was filed by the Equal Employment Opportunity Commission on behalf of John Bava, a Sears service tech. Bava was injured when he fell down a flight of stairs while at a customer's home. Bava's took leave according to Sears' rules and while he was still disabled by his injuries, attempte, on several occasions, to return to work. Sears would not accommodate his physical restrictions.
Instead, after Bava exhausted his leave time, Sears terminated him.
]]> Over 200 Sears workers are eligible to receive a portion of the settlement. The EEOC is asking injured Sears employees who were teminated under the Sears workers' compensation leave policy, to complete claim forms which provides the EEOC with information about their injuries including the extent, their ability to return to work at Sears and whether Sears had tried to accommodate their return to work.The average amount each terminated worker would receive is approximately $26,300. Some workers were found to be ineligible.
Karen Ward, senior counsel for the advocacy group Equip for Equality in Chicago, hopes that other businesses will take notice and that this settlement is a "wake-up" call for those employes who are inflexible about their policies on workers' compensation and medical leave for their employees injured at work.
Case name: Illinois, Sate of Dept. of Healthcare and Family Services b. Bartholomew, 17 ILWCLB211 (Ill.App.Ct., 4th 2009).
Bartholomew received a workers' compensation settlement of $175,000. The trial courted ordered that the mother of Bartholomew's child recieve $20,473.51 from the settlement as current child support and that $9,216.77 be applied toward child support arrearages and interest due to the Illinois Department of Health and Family Services under an administrative support order
Bartholomew did not object othe use of his workers' compensation settlement to pay current child support. He argued, however, that workers' compensation benefits are exempt from judicial process for child support arrearages pursuant to WCA Section 21. Specifically, Bartholomew, contended that a request for payment of an arrearage pursuant to a child support lien for payment of a past due suuport obligation is a debt that is barred from collection from his compensation settlement. The Illinos Appellate Court disagreed and affirmed the trial court, reasoning that the court's order was proper based on the statutory exception to income exemptions for the collection of child support.
Section 15(d) of the Income withholding for Support Act specifically includes workers' compensation payments in the definition of income. The section also states that any other state or local law purporting to exempt statutorily defined income does not apply to proceedings involving the collection of child support. The court concluded that although Section 21 of the WCA exempts workers' compensation awards from liability for debts, Section 15(d) of the Withholding Act creates an exception to that exemption for the collection of child support, including arrearages.
Furthermore, the court explained that applyng Bartholomew's workers' compensation settlement funds to his past due child support also serves the intent of the WCA to surnish a measure of financial protection to the worker and his dependents for injuries received by him which arose out of and in the course of his employment. Sections 7 and 8 of the WCA recognize a workers' dependents are intended beneficiaries.
Case name: Carreno v. Cambridge Homes, 17ILWCLB 210 (Ill.W.C..Comm. 2009).
In a previous decision, the Illinois Workers' Compensation Commisison awarded Carreno 165 weeks of temporary total disability, $113,780 in medical expenses, and permanent partial disability for 250 weeks at $186 per week. After appeals to the Circuit court, appellate court and Supreme Court, the employer issued 18 checks. Two checks were made payable to Carreno and his attorney, representing TTD, PPD and interest, and 16 checks were made payable to Carreno, his attorney and corresponding medical providers.
]]> Carreno filed a petition for penalties and attorney's fees, contending that the employer improperly tendered the medical expense award by making Carreno's medical providers payees on the checks. In a decision summarized at 14ILWCLB 98, the Commission agreed and granted the petition, finding the employer's inclusion of medical providers as payees on the checks representing the medical expense award was unreasonable and vexatious. However, the Circuit Court remanded for a more detailed explanation regarding why the employer's inclusion of the names of medical providers on Carreno's checks was vexatious. The court also ordered the Commission to calculate the interest on Carreno's unpaid award, which the court determined to be $113,779.85.On remand the Illinois Workers' Compensation Commission explained that the employer's actions were unsupported by the law. The employer cited no law to support the conclusion that its conduct was reasonable, and the Commission was unaware of any law that would provide a reasonable basis for including the names of Carreno's medical providers on checks issued in payment of the award. Furthermore, the employer presented nothing to show that they could have met the standard of objective reasonableness required by the court in Board of Education v. Industrial Commission in a belief that it was proper to include the medical providers on checks issued to Carreno. The Illinois Workers' Comensation Commission therefore, found the employer acted contrary to WCA Section 21 and Mentzer v. Van Scvoc. The employer presented nothing that would lead to the conclusion that it reasonably believed its method of tender was proper under the law.
The Illinois Workers' Compensation Commission concluded that the employer acted unreasonably and vexatiously when it included Carreno's various medical providers as joint payees ont Carreno's checks. Carreno was therefore entitled to addtional compensation pursuant to Section 19(k) in the amount of $56,889.93, representing 50% of the amount wrongfully withheld. Carreno was further entitled to attorney's fees pursuant to Section 16 in the amount of $34,133.96, representing 205 of the amount wrongfully withheld and the amount of additonal compensation awarded herin pursuant to Section 19(K).
]]>Case name: Ruberstell v. US Foodservice, 17ILWCLB 209 (Ill.W.C.Comm.2009)
The Illinois Workers' Comensation Commissioin remanded the case to the arbitrator to determine whehter payments of medical expenses by Ruberstell's group health carrier qualified as being made pursuant to the Illinois Workers' Compensation Act Section 8(j). As the manifestation date of the injury was determined by the Illinois Workers' Compensation to be Jan.16, 1998, Ruberstell would have had to file his application by Jan. 16. 2001, unless he filed the claim within two years from the date of the last payment of compensation related to his injury.
]]> Ruberstell filed his application for benefits Dec.12, 2001. By stipulation of the parties, treatment was rendered on Ruberstell's back and neck, which were the subject of the arbitrator's finding of permanent total disability. It was further stipulated that bills were paid by the employer through company insurance and paid for by the company well past Dec., 12, 1999. In finding the statute of limitations tolled, the arbitrator relied on the appellate court's decision in Legris v. Industrial Commission. The arbitrator found this case dispositive for the propostion that payments by the group health carrier that qualify under Section 8(j) constitutes payment of compensation within the meaning of Section 6(d). Legris held that medical payments are compensation for determining the tolling of the statute of limitations. Compensation under the language of Section 6(d) extends the time for filing to two years after payment of that compensation. Therefore, even under the amended manifestation date of injury found by the Commission the filing was timely. Under the authority of Legris, the filing of the claim on Dec. 12, 2001, was within two years from the date of last payment of compensation and therefore timely for the purposes of the statute of limitations.Upon review, the Illinois Workers' Compensation Commission affirmed and adopted the arbitrator's decision.
]]>Case name: Warner v. Kewanee Hospital, 17 ILWCLB 175 (Ill.W.C.Comm.2009).
Warner, a nurse at the defendant's hospital injured her back while helping to lift an unresponsive patient from a vehicle. She underwent a course of injections for discogenic pain. However, because she reported only minimal relief from the injections, her doctor recommended an artificial disk replacement, which if denied by insurance, could be substituted with a fusion. The arbitrator denied Warner's request for surgery. Based on Warner's lack of credibility, in addition to an opioid dependence, insignificant MRI findings, and lack of other objective findings to support her complaints, the arbitrator concluded that Warner was not a surgical candidate and denied any additional treatment. Upon review, the Illinois Workers' Compensation affirmed and adopted the decision of the arbitrator.
]]>Case name: Johnson v. Will County Sheriff, 17 ILWCLB 131 (Ill.W.C.Comm.2009).
Johnson, a deputy sheriff, was injured in a motor vehicle accident while on duty and responding to a dispatcher's call to assist another deputy, who had arrested an intoxicated driver. Before the accident, Johnson left his assigned patrol area, without permission to pick up his personal mail from a post office. Upon receiving the the dispatch call, he informed the other deputy that he would arrive in three to five minutes. However, Johnson was actually 10 to 15 minutes from the deputy's location. The accident occurred outside the county and prior to reentering his patrol area. While on duty, deputy sheriff's are prohibited from leaving their assigned patrol area without first securing permission from a supervisor. The arbitrator awarded benefits. However, the Illinois Workers' Commission reversed, reasoning that Johnson was engaged in a personal deviation at the time of the accident. Also, the accident arose out of Johnson's own misconduct. Therefore, Johnson failed to prove he sustained an accident arising out of and in the course of his employment.
As in Checker, Johnson embarked on a personal deviation when he left his assigned patrol area and the county to conduct a personal errand. He was injured prior to returning to his assigned patrol area. Therefore, Johnson sustained injuries while still engaged in a personal deviation, and his accident was not compensable.
Furthermore, the Illinois Workers' Compensation Commission found that the acicdent arose out of Johnson's own misconduct, as he violated a work rule by leaving his assigned patrol area without securing permission from his supervisor. Also, when Johnson received his assignment to assist the deputy, he failed to inform the dispatcher of his actual location. When the other deputy requested Johnson's estimated time of arrival, Johnson told him that he would arrive on the scene within three to five minutes. The Illinois Workers' Compensation Commission further found that Johnson exceeded the speed limit at the time of his accident in an atempt to cover his rule violation.
]]>Case name: Giunta v. Chicago, City of, 17 ILWCLB 140 (Ill.W.comm. 2009).
The arbitrator awarded Giunta permanent disabilty benefits under Section 8(e)12 for 10 percent loss of use of the right leg. On appeal, the Illinois Workers' Compensation Commission found that the arbitrator erred in denying Giunta's request for a continuance
]]> Section 12 of the Illinois Workers' Compensation Act obligates an employer's examining doctor to tender to the employee, in writing and as soon as practicable, an exact copy of the report the doctor provided to the employer. In this case, Giunta failed to avail himself of all available remedies to obtain the reports of the defendant's Section 12 examiners prior to trial. However, the Commission found that Giunta acted in good faith reliance on the representation of the defendant's attorney that he would provide Giunta's attorney with a copy of any report generated as a result of the examination. The defendant's attorney informed Giunta on the date of the trial of the defendant's refusal to tender the reports. Based on this element of surprise, the arbitrator should have granted Giunta's request for a continuance so that he could obtain the medical reports and determine whether he should present the doctor's testimony or allow the arbitrator to close proofs without considering the doctor's findings and opinions. However, pursuant to Giunta's interest of bringing the case to a conclusion and avoiding further delay, the Commission declined to remand the case to the arbitrator and instead issued a decision based on the evidence presented.The Illinois Workers' Compensation Commission went on to modify the arbitrator's disability award, increasing the permanent disability to 50 percent loss of use of the right leg, with a credit due the defendant for the 25 percent loss of use caused by a previous injury. After the second accident, Giunta was restricted to walking no more than 15 blocks. Giunta testified that hisknee feels worse not than it did prior to the second accident.
]]>Case name: Giunta v. Chicago, City of, 17 ILWCLB 140 (Ill.W.comm. 2009).
The arbitrator awarded Giunta permanent disabilty benefits under Section 8(e)12 for 10 percent loss of use of the right leg. On appeal, the Illinois Workers' Compensation Commission found that the arbitrator erred in denying Giunta's request for a continuance
]]> Section 12 of the Illinois Workers' Compensation Act obligates an employer's examining doctor to tender to the employee, in writing and as soon as practicable, an exact copy of the report the doctor provided to the employer. In this case, Giunta failed to avail himself of all available remedies to obtain the reports of the defendant's Section 12 examiners prior to trial. However, the Commission found that Giunta acted in good faith reliance on the representation of the defendant's attorney that he would provide Giunta's attorney with a copy of any report generated as a result of the examination. The defendant's attorney informed Giunta on the date of the trial of the defendant's refusal to tender the reports. Based on this element of surprise, the arbitrator should have granted Giunta's request for a continuance so that he could obtain the medical reports and determine whether he should present the doctor's testimony or allow the arbitrator to close proofs without considering the doctor's findings and opinions. However, pursuant to Giunta's interest of bringing the case to a conclusion and avoiding further delay, the Commission declined to remand the case to the arbitrator and instead issued a decision based on the evidence presented.The Illinois Workers' Compensation Commission went on to modify the arbitrator's disability award, increasing the permanent disability to 50 percent loss of use of the right leg, with a credit due the defendant for the 25 percent loss of use caused by a previous injury. After the second accident, Giunta was restricted to walking no more than 15 blocks. Giunta testified that his knee feels worse not than it did prior to the second accident.
]]>
Case name: Negrete v. National Railraod Passenger Corp. (Amtrak), 16 ILWCLB 211 (7th Cir. 2008).
Negrete, a former track-repair worker for Amtrak claimed that a work related back injury left him permanently disabled and unable to work. The U.S. District Court, Northern District of Illinois dismissed his lawsuit against Amtrak on the grounds that he had "intentionally flouted discovery deadlines, hidden and tampered with evidence and lied in his deposition." The 7th Circuit found that dismissal of the suit was an appropriate sanction under the circusmtances. Negrete's misconduct, which the 7th Circuit described as "appalling" included withholding names of physicians who had treated him for his injury, tampering with medical evidence, grossly understating rental income he received, misrepresenting his physical abilities, and missing 21 discovery deadlines. In response to Negrete's allegation that he was uneducated the 7th Circuit stated, "It does not take a graduate degree to understand that it is unacceptable to hide evidence and lie in a deposition."
Case name: Vasquez v. Hospira Inc., 16 ILWCLB 210 (Ill.W.C.Comm.2008).
Vasquez died as a result of an accident arising out of and in the course of his employmnet. He had three children. All were at least 18 years of age at the time of his death. The arbitrator found that the decedent's widow failed to prove that the oldest child was enrolled as a full time student in an accredited educational institution at the time of his father's death. The arbitrator concluded that pursuant to Section 7(a) of the Illinois Workers' Compensation Act., the decedent's widow was entitled to receive death benefits from July 2, 2004, through Sept. 5, 2004, the day before her remarriage, or a total of 9-3/7 weeks. Thereafter, as the decedent had no minor children nor any children under the age of 25 enrolled as a full time student at an accredited educational institution, she was entitled to receive a lump sum payment equal to two years of compensation benefits, or $52,404.56
]]> The Illinois Workers' Compensation Commission modified the arbitrator's decision with respect to his finding that the Vasquez's oldest child was not entitled to receive death benefits pursuant to Section 7(a). The Commission found that the child was enrolled in an accredited educational institution within the meaning of the act at the time of the decedent's death, July 1, 2004. The child was enrolled as a full time student for the spring of 2003, fall of 2003 and spring of 2004 semesters. He intended to continue taking classes on a full time basis in the fall of 2004. The deadline for registration was Aug. 23, 2004. The Commission therefore found that the son was enrolled in an accredited educational institution until he failed to enroll for the fall 2004 semester on Aug. 23, 2004. Because the decedent's death July, 2004 occurrred while the child was enrolled in an accredited educational insittution within the meaning of the act, the child was entitled to receive death benefits pursuant to Section 7(a) until he ceased to be enrolled as of Aug. 23, 2004.The Commission further found that should the child re-enroll as a full time student in an accredited educational institution prior to reaching age 25, he will again become eligible for benefits. The period beginning Aug. 23, 2004, whe his enrollment ceased, and ending when he re-enrolls as a full time student in an accredited educational institution will contstitute a break in the educational continuum as contemplated in Drives Inc. v Industrial Commission.
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