Section Newsletters

Articles on Workers’ Compensation Law

The elusiveness of the intoxication defense By Kevin S. Botha Workers’ Compensation Law, June 2007 In a recent Rule 23 decision, the Appellate Court affirmed the judgment of the Circuit Court that confirmed the decision the Worker’s Compensation Commission awarding benefits to claimant, where the defense was based on intoxication.
Notes from the Editor By Richard D. Hannigan Workers’ Compensation Law, June 2007 A message from the editor.
Overtime wages excluded from average weekly wage calculation if not worked on a regular and mandatory basis By Timothy S. McNally Workers’ Compensation Law, June 2007 In Airborne Express v. Illinois Workers’ Compensation Commission, 865 N.E.2d 979, 310 Ill.Dec. 259, 2007 WL 837246 (Ill.App. 1 Dist), the First District of the Appellate Court clarified the issue of the inclusion of overtime in calculating average weekly wage.
Radosevich, continued attorney fees under §19(g) By Mark P. Matranga Workers’ Compensation Law, June 2007 The last newsletter contained a discussion of the interest rate on Commission awards found in the Fourth District decision in Radosevich v. Industrial Commission, 367 Ill.App.3d, 856 N.E.2d 1, 305 Ill.Dec. 469(2006).
A rare reversal & remand of a manifest weight issue under the “Odd Lot” permanent disability theory By Kevin S. Botha Workers’ Compensation Law, June 2007 The claimant in this case (Westin Hotel v. Industrial Commission, 310 Ill.Dec. 18, 865 N.E.2d 342) was 54 years old when the injury occurred.
A Rule 23 decision with something for everyone By Richard D. Hannigan Workers’ Compensation Law, June 2007 This particular case was appealed on the issue of the nature and extent of the injury.
Wage Loss Differential By Richard D. Hannigan Workers’ Compensation Law, June 2007 Under §8(d)1 of the Workers’ Compensation Act an injured worker is entitled to a wage loss differential when it is proved that he is partially incapacitated and permanently prevented from pursuing his usual and customary line of employment and there is an impairment of earnings.
Another confusing interest case By Mark P. Matranga Workers’ Compensation Law, March 2007 The Appellate Court, Fourth District, has ventured into the interest calculation thicket with Radosevich v. The Industrial Commission, 367 Ill.App.3d, 856 N.E.2d 1, 305 Ill.Dec. 469.
The injured workers’ benefit fund By Vito D. DeCarlo & Anita M. DeCarlo Workers’ Compensation Law, March 2007 The Injured Workers’ Benefit Fund (IWBF) was created by the 2005 amendments to Section 4(d) of the Illinois Workers’ Compensation Act (820 ILCS 305).
Injury compensable regardless of alleged safety rule violation, as petitioner was in the scope of his employment By Jennifer J.C. Kerns Workers’ Compensation Law, March 2007 In J.S. Masonry, Inc. v. Industrial Commission, the First District of the Appellate Court had an opportunity to analyze the effect of an alleged safety rule violation on the claimant’s entitlement to benefits.
Repetitive trauma, date of accident and travel expenses for seeing treater By Richard D. Hannigan Workers’ Compensation Law, March 2007 In a Rule 23 Order filed on October 3, 2006, the Appellate Court dealt with the issue of repetitive trauma, date of injury, and travel expenses.
Respondents must meet their obligations in vocational rehabilitation By Kevin S. Botha Workers’ Compensation Law, March 2007 The Commission unanimously affirmed and adopted Arbitrator Tobin’s decision on review in Allen Lemme v. Monterey Coal Company, 06IWCC0967 (2006).
What we are never to discuss: Compensation to arbitrators, commissioner and the attorneys who practice before the Commission By Richard D. Hannigan Workers’ Compensation Law, March 2007 This article is strictly the author’s opinion and not necessarily the opinion of this council section, its member and the ISBA (or anyone else for that matter).
First District Appellate Court holds that specific reservation of workers’ compensation lien in settlement contract not required for lien to be enforceable By Michael A. Moore Workers’ Compensation Law, December 2006 An August 30, 2006, decision from the Illinois Appellate Court’s First District in the case of James Gallagher v. Lenart, No. 1-06-0065WC (2006 WL 2506210), held that an employer does not have to specifically reserve its workers’ compensation lien right in a workers’ compensation settlement agreement in order for that lien to be enforceable, and specifically rejected the reasoning of the Fourth District Appellate Court’s decision in Borrowman v. Prastein, 356 Ill.App.3d 546, 826 N.E.2d 600 (4th Dist. 2005).
GHERE no more? Certified Testing v. Ind. Comm’n, _ _ N.E.2d _ _ , 2006 WL 3060086 (Ill.App. 4th Dist.) By Brad E. Bleakney Workers’ Compensation Law, December 2006 If there is no discovery in Workers’ Compensation (except the subpoena), do you wonder why then the defense attorney always makes a demand for medical records supporting the claim when forwarding their appearance? The answer is the Section 12 objection, recently known as the Ghere objection.
Illinois jurisdiction By William R. Gallagher Workers’ Compensation Law, December 2006 The Illinois Workers’ Compensation Act contains a provision which defines the term “employee.” Included as part of this definition of “employee,” the Act provides a basis for Illinois jurisdiction.
Payments related to replacing and servicing claimant’s prosthesis included in employer’s subrogation claim By Janet D. Pallardy Workers’ Compensation Law, December 2006 The Illinois Appellate Court, Fifth District, rendered a decision on October 4, 2006, allowing Respondent a lien credit against a third-party judgment for payments made under the Workers’ Compensation Act pertaining to replacing and servicing claimant’s prosthesis. Crispell v. Industrial Commission, __ N.E.2d __, 2006 WL2879068 (Ill.App. 5 Dist).
Petitioner’s non-compliance with vocational rehabilitation insufficient to deny compensation By Kevin S. Botha Workers’ Compensation Law, December 2006 In this Rule 23 decision, the Appellate Court addressed the issues of intervening accidents, vocational rehabilitation and Petitioners choice of physicians.
Supreme Court modifies repetitive trauma standard By Mark Cosimini Workers’ Compensation Law, December 2006 Repetitive trauma cases have been recognized in Illinois since the Peoria Belwood decision was issued by the Supreme Court of Illinois.
Benefits slip away from claimant By Carol A. Cesaretti Workers’ Compensation Law, September 2006 The First District of the Illinois Appellate Court held that claimant’s slip and fall in the employee bathroom did not arise out of her employment. First Cash Financial Services v. Industrial Comm’n, 2006 WL 2072314 (1st Dist.).
Illinois Appellate Court holds injury at company picnic not compensable when there was no penalty for non-attendance By Michael A. Moore Workers’ Compensation Law, September 2006 A July 12, 2006, decision from the Illinois Appellate Court’s First District in the case of William Gooden v. The Industrial Commission, 2006 WL 1913879, denied compensation to an employee injured while participating in recreational activities at a company picnic pursuant to Section 11 of the Illinois Workers’ Compensation Act.
The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2006 By Bradford J. Peterson Workers’ Compensation Law, September 2006 The following article involves proposed legislation that can be killed modified or never make it to the Presidents desk for signature.
No causal connection for claimant, despite cracked helmet By Michelle L. LaFayette Workers’ Compensation Law, September 2006 In this Rule 23 decision, the Illinois Appellate Court held that a herniated disc was not causally connected to claimant’s work accident based upon a normal CT scan, unrestricted cervical range of motion, considerable gaps in medical care and treatment, and extended performance of full-duty activities.
No workers’ compensation benefits for injury at company-sponsored picnic By Michael R. Lied Labor and Employment Law, September 2006 Allstate Insurance planned a company picnic for July 21, 2000. The picnic occurred on Allstate’s grounds, it was attended exclusively by Allstate employees, and Allstate provided all the materials and equipment.
Not speculation or conjecture to rely on similarly situated employees to determine amount claimant would have earned in usual and customary employment By Carol A. Cesaretti Workers’ Compensation Law, September 2006 On July 12, 2006, the Appellate Court, First District, held that it was not speculation and conjecture for the commission to rely on similarly situated employees in determining the claimant’s earnings in her usual and customary employment in calculating a wage differential award. 
Hospital Director of Nurses suffers stroke while giving speech at physician’s retirement dinner - held compensable By James W. Stevenson Workers’ Compensation Law, June 2006 In Pinckneyville Community Hospital v. Industrial Commission, (Mary Downen) 2006 WL 922220 5th District Appellate Court March 30, 2006, Mary Downen, a Director of Nurses for the Pinckneyville Community Hospital, suffered an intracerebral hemorrhage and stroke while giving a speech at a dinner to honor a retiring physician.
Inclusion of net profits not allowed in calculation of average weekly wage By Richard D. Hannigan Workers’ Compensation Law, June 2006 This Rule 23 case involved a son who purchased the assets of his father’s business and incorporated his new venture.
Is it possible to file a 19(h) petition more than 30 months after a final award? By Richard D. Hannigan Workers’ Compensation Law, June 2006 The answer is: It depends. In Kenneth W. Behe v. Industrial Commission, 2006 WL 1382058 2nd District May 5, 2006 the Appellate Court discusses the issue of how many 19(h) Petitions can be filed.
Payment of award of medical bills directly to medical provider/Section 19(g) and hourly attorney fee set at $250 By James W. Stevenson Workers’ Compensation Law, June 2006 In Aurora East School District v. Don Dover, 363 Ill.App.3d 1048, 847 N.E.2d 623, 301 Ill.Dec. 298 2nd District March 21, 2006, Don Dover, employed by the Aurora East School District, received an award which included TTD benefits of $29,908.13, representing 59-6/7 weeks, and $85,015.04 in medical expenses.
Pension Board hearing must comply with Industrial Commission finding because of collateral estoppel By James W. Stevenson Workers’ Compensation Law, June 2006 In Daniel Mabie v. Village of Schaumburg, 847 N.E. 2d 796 (March 31, 2006) 1st District, Daniel Mabie, a fireman for the Village of Schaumburg, was injured on April 12, 1999, as a result of a fall down the fire station’s stairs.

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