CASE LAW SUMMARIES OCTOBER 2020 - Part 1

10/15/2020 1:08 PM | Judy Pfeiffer (Administrator)
I.                   Arising Out of Employment

Butler v. Illinois, State of/Veterans Home of Anna, 20 IWCC 0348

Petitioner worked as a secretary for a residential facility. She alleged multiple injuries from a fall due to a broken chair.  Petitioner testified she returned to her workstation when the floor mat slid and she grabbed her chair.  When she grabbed her chair, two bolts in the chair broke and Petitioner fell.  Petitioner testified the floor was slippery and the floor mats did not have slip resistant backing.  Petitioner provided her own desk and chair due to the condition of the employer’s equipment and the employer did not object. Witness testimony and injury reports reflect Petitioner’s chair broke as she attempted to sit down.  There was a dispute as to whether Petitioner was merely sitting down when the chair broke or if the incident occurred due to the floor mat.

The Arbitrator found Petitioner sustained an accidental injury that arose out of and in the course of her employment.  The Arbitrator reasoned that it was irrelevant whether the injury occurred due to the floor mat or while Petitioner was merely sitting down in the chair as the accident occurred due to an unsafe or hazardous condition on the employer’s premises.  The Arbitrator was not persuaded by Respondent’s argument that the incident constituted a personal risk as Petitioner used her own chair and reasoned she used personal equipment for the benefit of the employer to which the employer acquiesced.  The Commission affirmed the Decision.

Giglio v. Illinois, State of/Police, 20 IWCC 0334

Petitioner alleged an injury to his neck and upper back on February 14, 2018 while performing a burpee exercise during a six month cadet training program.  His training supervisor noticed the claimant stopped the exercise and brought him in front the class to finish the work out to “make an example of him.” Petitioner did not immediately report the incident as he desired to complete the academy.  Although Petitioner testified to ongoing pain, he completed the remainder of the session that week.  Thereafter he sought treatment on February 17, 2018 and reported increasing pain during training at the police academy, although he did not report the specific incident. He was diagnosed with cervical radiculopathy.  After this evaluation, Petitioner reported the incident to his supervisor via text message and they discharged him from the academy to return in the next class.  Petitioner did not return to the academy until the following session in June 2018.

The Arbitrator found Petitioner sustained an accidental injury that arose out of and in the course of his employment. Although Petitioner did not immediately report the incident when it occurred, the Arbitrator reasoned Petitioner did not want to jeopardize completing the academy.  While Petitioner did not report the specific incident during his initial evaluation on February 17, 2018, the Arbitrator noted Petitioner reported pain that originated during training at the police academy.  The Commission affirmed the Arbitrator’s Decision.

II.                Course of Employment

Suits v. Marquette Group, 2020 IL App (3d) 190491 WC-U

Petitioner worked for a marketing company on the seventh floor of a building. Her employer permitted a 30 minute lunch break and two 15 minute breaks. Petitioner and other colleagues often walked during the breaks. The employer encouraged the practice, implemented a wellness program and provided pedometers. Petitioner alleged two separate injuries that occurred while walking. She first alleged an injury on June 6, 2012 when she tripped on a raised piece of concrete three blocks from the employer’s premises and a second accident on November 14, 2012 when she twisted her ankle and fell one half block from the employer’s premises.

The Arbitrator found the accidents did not arise out of or in the course of Petitioner’s employment. The Commission affirmed the Decision, which was then affirmed by the Circuit Court. Petitioner appealed to the Appellate Court.  The Court found the Decision was not against the manifest weight of the evidence. In denying accident, the Court noted that while Petitioner was engaged in an act of personal comfort, she did so off the employer’s premises and cited Eagle Discount Supermarket v. Indus. Comm’n, 82 Ill. 2d 331 (1980), in finding the most important factor to consider was the location of the accident.  Petitioner sustained injuries off the employer’s premises and she was exposed to risks outside the employer’s control.

Lonergan v. Sanctuary Hospice, 20 IWCC 0344

Petitioner worked as a nurse liaison and her job duties included traveling to doctors’ offices and hospitals.  She testified 90% of her job duties required travel to various facilities. On January 17, 2014, Petitioner left a meeting at an assisted-living facility when she slipped and twisted her knee. Petitioner did not testify to the cause of her fall and the medical records indicated her knee gave out. She subsequently theorized she could have slipped on ice or tripped on uneven asphalt.

The Arbitrator found Petitioner was a traveling employee and her accident arose out of and in the course of her employment. The Commission reversed the Arbitrator’s Decision and found that while Petitioner was a traveling employee, she still had the burden to prove compensability and Petitioner failed to prove the cause of her fall. The evidence suggested Petitioner did not know the cause of her injury and her indication it could have occurred due to ice or uneven asphalt was mere speculation.

III.             Accidental Injuries

Boston v. River Birch Senior Living LLC, 20 IWCC 0365

Petitioner worked as a CNA supervisor and her job duties required that she be on call for one to two weeks per month. While completing her shift, Petitioner discovered another caregiver left her assignment without finishing her tasks and used her on call phone to report this to her manager. While driving home after her shift, Petitioner received threatening text messages on her personal phone from the co-worker she reported. Petitioner reported this to her manager. She then received a call from the co-worker that she was at the Petitioner’s home. Petitioner returned home where the co-worker confronted her and Petitioner testified she pushed the co-worker as she felt threatened and a physical altercation ensued. Petitioner left and returned a few hours later when they engaged in another physical altercation. Although the incident occurred off the employer’s premises, Petitioner maintained her injuries arose out of and in the course of her employment as she was on call when the incident occurred. 

The Arbitrator found Petitioner failed to prove her accident arose out of and in the course of her employment and reasoned all communication with the co-worker occurred via Petitioner’s personal cell phone. Further, Petitioner did not attempt to prevent the altercation by calling the police or contacting her employer after she knew the co-worker was waiting for her at home or after the first physical altercation. The Arbitrator also found it significant that Petitioner pushed the co-worker and the fight ensued, although Petitioner testified this was due to a perceived threat. Nevertheless, the Arbitrator found it significant that Petitioner was the first to make personal contact. The Arbitrator reasoned any actions Petitioner took after she was aware the co-worker was waiting for her in the parking lot became personal actions. The Commission affirmed.

Eaton v. Morris Hospital, 20 IWCC 0330

Petitioner alleged bilateral carpal tunnel syndrome due to her repetitive job duties as a nurse.  Petitioner’s treating physician reviewed a job description, which indicated Petitioner’s job required her to use her hands and fingers for pushing, pulling and repetitive grasping for seven or more hours per day. However, at trial Petitioner did not testify that her job duties required repetitive grasping and pulling or that she experienced symptoms while performing her job duties. Petitioner testified at trial that her job did not require fine manipulation. Respondent obtained a Section 12 examination and the doctor opined Petitioner’s carpal tunnel syndrome was idiopathic in nature and not related to her job duties as there was no evidence of highly repetitive flexion and wrist extension coupled with forceful grasping.

The Arbitrator found Petitioner proved she sustained an accidental injury that arose out of and in the course of her employment after finding the treating doctor’s opinion persuasive. The Arbitrator reasoned the treating doctor reviewed the job description in formulating his opinions. 

The Commission reversed the Arbitrator’s Decision and found Petitioner failed to prove her condition of ill-being was causally related to her job duties. The Commission reasoned the treating doctor based his opinion on assumptions made after reviewing the job description, which Petitioner did not corroborate through her trial testimony.  She also did not testify that she experienced carpal tunnel symptoms while performing her job duties at work and only testified that she experienced pain while sleeping. The Commission further reasoned the medical records did not document carpal tunnel symptoms until one year after she last worked for Respondent. The Commission further found Respondent’s Section 12 examiner’s opinion persuasive as the doctor had a more accurate and complete understanding of Petitioner’s condition and job duties.

IV.             Permanent Disability Benefits

Sanders v. Chicago, City of/Dept. of Water Management, 20 IWCC 0343

Petitioner worked as a construction laborer and sustained injuries to his right knee, right elbow, left finger and right foot resulting from a motorcycle accident that occurred while en route to a restaurant to use the restroom.

The Arbitrator awarded a wage differential pursuant to Section 8(d)1 for the right knee injury and 5% loss of use of the right arm and 15% loss of use of the left little finger pursuant to Section 8(e). The Commission affirmed the Arbitrator’s wage differential award under Section 8(d)1 but vacated the award under Section 8(e).  The Commission reasoned that pursuant to the holding in General Electric Co. v. Indust. Comm’n, 89 Ill. 2d 432 (1982), compensation is proper under either Section 8(d)1 or 8(e), although compensation cannot be awarded under both sections for injuries resulting from the same accident.

Bush v. Illinois, State of/Dept. of Transportation, 20 IWCC 0358

Petitioner worked as a highway maintainer and testified his job required forceful gripping and pulling of pipes with large pipe wrenches. He was diagnosed with bilateral ulnar and median neuropathies and left epicondylitis and underwent bilateral carpal tunnel releases and ulnar nerve transpositions. He also received an injection for his left elbow epicondylitis/interstitial partial tear. Petitioner attributed his upper extremity conditions to his repetitive job duties.  The medical records reflect Petitioner had a prior radius fracture and underwent open reduction internal fixation and a carpal tunnel release. At trial, Petitioner testified he still experienced reduced strength and grip strength in both arms and hands. He also reported pain in his right elbow. Petitioner further testified that while he returned to his full duty job, he could no longer engage in extra work as a tree trimmer, although he presented no evidence as to income loss.  The parties proceeded to hearing regarding the nature and extent of the injuries.

In assessing permanency, the Arbitrator considered the five factors of Section 8.1(b).  The Arbitrator assigned no weight to the first factor as neither party presented an impairment rating. In considering the second factor, the Arbitrator assigned significant weight due to Petitioner’s job as a highway maintainer, which required significant repetitive use of his upper extremities and he continued to experience symptoms. The Arbitrator assigned minimal weight to the third factor as Petitioner failed to present any evidence of lost income due to his inability to perform extra work as a tree trimmer. Given Petitioner’s age of 50, the Arbitrator assigned moderate weight to the fourth factor as Petitioner would live with the effects of the injury for the remainder of his work and natural life. Finally, the Arbitrator assigned significant weight to the fifth factor, but primarily focused on the nature of the treatment and Petitioner’s residual symptoms. The Arbitrator awarded 12.5% loss of use of the right hand, 15% loss of use the left hand, 12.5% loss of use of the right arm and 20% loss of use of the left arm.

The Commission majority affirmed the Arbitrator’s Decision. However, a dissenting Commissioner found that since Petitioner actually returned to his full duty work, the second factor weighed in favor of decreased permanent disability. Additionally, in considering the fifth factor, the Commissioner found the Arbitrator failed to actually compare Petitioner’s subjective complaints to the medical records. When doing so, the Commissioner found the records did not wholly support Petitioner’s subjective complaints and weighed in favor of decreased permanent disability. As such, the Commissioner would have awarded 7.5% loss of use of the right hand, 10% loss of use of the left hand, 10% loss of use of the right arm and 15% loss of use of the left arm.

V.                Death Benefits & Beneficiaries

Holley v. American Coal Co., 20 IWCC 0345

Decedent filed an Application for Adjustment of Claim on July 31, 2015 alleging injuries due to workers’ pneumoconiosis. He died on April 28, 2016 after refusing treatment for stomach cancer. The Application was amended to list the Estate of decedent as the Petitioner. Thereafter, the parties proceeded to hearing on May 15, 2019 and decedent’s daughter testified at hearing among other witnesses. The Arbitrator found decedent’s condition causally related to his job duties as a coal miner and awarded permanency benefits. After the hearing, Petitioner’s counsel filed a “Petition to Amend Application for Substitution of Party” to substitute decedent’s daughter as Petitioner before the Commissioner without objection by Respondent’s counsel. The Commissioner granted the Petition as decedent’s daughter was an eligible beneficiary under the Act. The majority affirmed the Decision as decedent’s daughter was an eligible dependent under the Act and distinguished this case from Ill. State Treasurer v. Estate of Kormany, 140 N.E.3d 821 (2019), which held that the Commission’s jurisdiction was suspended until a representative of the Estate was properly appointed, as there was no finding in Kormany that the deceased claimant died with a spouse or dependent.

A dissenting Commissioner disagreed and found Kormany controlled and compelled the Commission to vacate the Decision of the Arbitrator until a representative of the Estate was properly appointed. The Commissioner maintained that if a claimant dies of unrelated causes then there must be a legal representative appointed to prosecute the claim and the Commission did not possess authority to appoint a representative.

VI.             Claim Filing Procedure

Ramsey v. Illinois Emergency Management Agency, 20 IWCC 0350

Petitioner worked as an office coordinator and alleged repetitive trauma injuries to her thumbs and elbows. Petitioner suffered from symptoms since 2011 and on December 1, 2016, she told her doctor that her symptoms were attributable to her job duties over 20 years. She filed an Application for Adjustment of Claim on January 8, 2018. Petitioner testified she wore hand braces every day while at work. Respondent’s witness testified that while he saw Petitioner wearing braces in the office, he was unaware the underlying condition was related to her job duties until he received a letter from her attorney in January 2018.

The Arbitrator found December 1, 2016, the date of her evaluation during which Petitioner attributed her symptoms to her job duties, was the appropriate accident date. As a result, the Arbitrator further found Petitioner failed to provide proper notice within the requirements of the Illinois Workers’ Compensation Act. The Commission affirmed the Arbitrator’s Decision and reasoned that while her supervisor saw her wearing braces at work, it did not constitute actual, defective or inaccurate notice of an alleged injury and Respondent did not need to prove undue prejudice.

VII.          Petitions to Review

Sloniker v. Aspen Construction Systems, 20 IWCC 0337

Petitioner previously received a wage differential award pursuant to Section 8(d)1, which was based in part on Petitioner’s low back pain due to an annular tear at L4-5. Respondent filed a Petition under Section 19(h) a few years later alleging Petitioner’s disability diminished and the wage differential benefits should be terminated and the award converted to an award under Section 8(d)2. Respondent argued the medical records after hearing suggested that Petitioner’s annual tear resolved and as such, Petitioner’s disability diminished or ended. Respondent relied in part on an office note composed by the treating doctor’s nurse practitioner that indicated Petitioner’s annular tear resolved following an updated MRI. The medical records and imaging also suggested new findings at L5-S1. 

The parties presented conflicting opinions regarding Petitioner’s condition. Petitioner’s treating doctor testified that while his nurse practitioner indicated otherwise in the office note, the presence or absence of an annual tear needs to be confirmed through discography. Nevertheless, the MRI demonstrated other findings of disc degeneration consistent with his clinical presentation and some signal from the area near the prior annular tear. The treating doctor found there was not a material anatomic change in Petitioner’s condition. Respondent’s expert testified that the treating doctor believed the annual tear resolved per the medical records. The expert reviewed the MRI and noted there was no annular tear to “any significant degree” and they always leave some remnant left on imaging but nothing significant. Respondent’s expert also believed Petitioner only experienced a lumbar strain and attributed his degenerative disease to Petitioner’s age.

The Commission denied Respondent’s Petition and found the opinions of the treating doctor most persuasive. The Commission reasoned Respondent’s expert did not refute the treating doctor’s testimony that the MRI demonstrated an ongoing signal that could suggest a persistent annular tear. Further, the fact Respondent’s expert noted annular tears leave remnants behind on MRI suggested there was still something present on the MRI, although the expert did not find it significant. The Commission also considered whether the annular tear diminished and if that diminished Petitioner’s disability and was persuaded by the treating doctor’s testimony that the presence of an annular tear needs to be confirmed by discography. Nevertheless, even if the annular tear diminished, that did not necessarily support a finding that Petitioner’s disability itself diminished to the point where his pain decreased and he could return to his prior job. The Commission further reasoned the Respondent’s expert did not review the prior MRIs which would make it difficult to determine if the pathology changed. The Commission also noted the expert’s diagnosis of a lumbar strain and age related degenerative disease was not persuasive as the diagnosis and causation had been adjudicated by the Arbitrator at hearing.

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