Workers’ Compensation Law

The newsletter of the ISBA’s Section on Workers’ Compensation Law

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2006 Articles

Attorneys’ pleas for fees pays off By Cameron B. Clark January 2006 In Alvarado v. Industrial Commission, the Illinois Supreme Court, in a decision delivered by Justice Thomas, addressed the issue of whether the Commission may award attorney fees to a claimant’s former attorney several months after the Commission approved a settlement between the claimant and his employer.
Benefits slip away from claimant By Carol A. Cesaretti 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.).
Carpenter bypasses employer’s attempts to detour benefits By Arnold G. Rubin January 2006 In order to recover for benefits under the Illinois Workers’ Compensation Act, it is well accepted that a claimant’s work-related injury must “arise out of and in the course of the employment.”
Co-Editor’s notes By Richard D. Hannigan September 2006 Have you started to accumulate your hours of education for the mandatory Minimum Continuing Legal Education?
Co-editor’s notes By Richard D. Hannigan March 2006 Congratulations go out to our Chair, John Adams, Vice Chair, Deborah Benzing and Secretary, John Sheperd, as well as all of the lecturers who presented the ISBA with two educational seminars in February of this year.
Co-Editor’s notes By Richard D. Hannigan January 2006 MCLE (minimum, not mandatory, continuing legal education) is here. The officers of the Workers’ Compensation Section, John Adams, Deborah Benzing, John Shepard, the co-editors and all of the counsel section members are working to deliver quality material to assist you in meeting your bi-yearly requirements.
Commission lacks jurisdiction to review Section 8(d)(1) award By Carol A. Cesaretti March 2006 In its recent decision in Cassens Transport Co. v. Industrial Commission, 2006 WL 360186 (Ill., 2006), the Illinois Supreme Court held that the Commission lacked jurisdiction to reopen or modify a 10-year-old wage differential award under the Workers’ Compensation Act.
The contract for hire: The exclusive test for determining jurisdiction By Cameron B. Clark March 2006 This article will focus on the Supreme Court’s analysis of the issue presented before it. For a full discussion of the facts surrounding the Mahoney decision, please refer to the March 2005  issue of the ISBA Worker’s Compensation Law Newsletter, Vol. 42, No. 3. 
Double denial results in single victory for injured claimant By Cameron B. Clark March 2006 In Dunlap v. Nestle USA, Inc., 2005 U.S.App. LEXIS 27070 (7th Circuit 2005), the United States Court of Appeals for the Seventh Circuit in a decision issued by Judge Wood, addressed the issue of whether the exclusivity provisions of the Act precluded the injured worker from pursuing a tort action against his employer.
Editor’s note By Richard D. Hannigan December 2006 Although the ISBA marks time from the third week in June to the third week in June, I am a traditionalist and mark time from January to December.
Editor’s note By Richard D. Hannigan June 2006 John Adams’ tenure as Chairperson has come to an end. He has had a great year and has set the bar high for the incoming Chairperson, Deborah Benzing, and all others who follow.
Employer avoids “commutation” order By Arnold G. Rubin January 2006 Section 24 of the Illinois Workers’ Compensation Act provides authority for the Commission to order and direct an employer to deposit the commuted value of the total unpaid compensation with the State Treasurer or with any savings and loan association or State or national bank or trust company doing business in the State.
Estate wins debate over abatement of claim By Cameron B. Clark January 2006 In Nationwide Bank, the appellate court was faced with the question of whether or not a claim abated upon the death of the injured worker’s spouse.
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 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 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.
Hospital Director of Nurses suffers stroke while giving speech at physician’s retirement dinner - held compensable By James W. Stevenson 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.
Illinois Appellate Court holds injury at company picnic not compensable when there was no penalty for non-attendance By Michael A. Moore 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.
Illinois jurisdiction By William R. Gallagher 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.
Inclusion of net profits not allowed in calculation of average weekly wage By Richard D. Hannigan 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 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.
Medical community remains skeptical of Multiple Chemical Sensitivity (MCS) By Edyta Salata March 2006 In Bernardoni v. Indus. Comm’n., 298 Ill. Dec. 530, 840 N.E. 2d 300 (2005), the appellate court held that petitioner failed to show that multiple chemical sensitivity (hereinafter “MCS”) was a generally accepted syndrome in the medical community.
The Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2006 By Bradford J. Peterson 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 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.
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 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. 
Payment of award of medical bills directly to medical provider/Section 19(g) and hourly attorney fee set at $250 By James W. Stevenson 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.
Payments related to replacing and servicing claimant’s prosthesis included in employer’s subrogation claim By Janet D. Pallardy 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).
Pekin Insurance v. Anthony Hiera By Carol A. Cesaretti March 2006 In this Fourth District case, the appellate court affirmed the decision of the trial court granting Hiera’s motion for an immediate UM arbitration and denying Pekin’s motion to stay said proceedings.
Pension Board hearing must comply with Industrial Commission finding because of collateral estoppel By James W. Stevenson 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.
Petitioner’s non-compliance with vocational rehabilitation insufficient to deny compensation By Kevin S. Botha December 2006 In this Rule 23 decision, the Appellate Court addressed the issues of intervening accidents, vocational rehabilitation and Petitioners choice of physicians.
Respondent appeals nature and extent award of 22.5% loss of use of each arm and 22.5% loss of use of each hand By Richard D. Hannigan June 2006 In this Rule 23 case, it was not disputed that the Petitioner developed bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome.