Workers’ Compensation Law

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

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2008 Articles

Appellate court affirms the award of travel expenses to petitioner for travel to and from a treating physician By Kevin S. Botha September 2008 In a recent Rule 23 decision, the appellate court affirmed the judgment of the circuit court that confirmed the decision of the Illinois Workers’ Compensation Commission awarding travel expenses to Petitioner for travel to and from the Petitioner’s treating physician.
Are utilization review reports admissible into evidence? Petitioner vs. Respondent By Anita M. DeCarlo & Kelly Johnson March 2008 Until recently, the only vehicle to dispute the reasonableness or necessity of treatment was via a Section 12 examination.
Attorney fees for the discharged attorney: Does it pay to be the second attorney? By Richard D. Hannigan June 2008 Ted Collison, a prominent Petitioner’s attorney from Northbrook, was kind enough to forward an appellate court decision regarding attorney fees.
Borrowing employer to reimburse loaning employer for workers’ compensation benefits paid By Shaun M. Falvey September 2008 In Surestaff, Inc. v. Open Kitchens, Inc., (No.1-06-3225), Fifth Division (July 25, 2008), the appellate court held that the jury was properly instructed that a borrowing employer within the meaning of §305/1(a)(4) of the Workers’ Compensation Act (“the Act”) bears the burden of proving the existence of an agreement by a loaning employer to waive its right to reimbursement from the borrowing employer for workers’ compensation benefits paid to a temporary employee.
Claimant not entitled to TTD when terminated for cause: The Interstate Scaffolding case By Lindsey S. Strom December 2008 The Interstate Scaffolding case is currently the hot topic in the world of Workers’ Compensation.
The Commission does not have the power to award permanent partial disability and permanent total disability when the injuries arise out of the same accident By Joseph Mulvey December 2008 In Beelman Trucking v. Workers’ Compensation Comm’n, 886 N.E.2d 479 (5th Dist., 2008), the Fifth District addressed three issues: (1) whether Petitioner was entitled to an award of PPD under section 8(e)(10) and PTD under section 8(e)(18); (2) whether Petitioner was entitled to a voice activated computer system under section 8(a); and (3) whether Petitioner was entitled to reimbursement under section 8(a) for increased car insurance premiums related to the handicap modifications endorsement.
The Commission giveth and the Appellate Court taketh away By Kevin S. Botha June 2008 In Beelman Trucking v. IWCC (2008 WL 901460), the appellate court reversed the Commission’s award of both §8(e)(10) and statutory PTD under §8(e)(18), holding that the Commission does not have the power to award benefits for specific losses of permanent partial disability as well as permanent total disability resulting from the same accident.
Editor’s note By Richard D. Hannigan December 2008 Unless you have been out of the country or in a coma this is not news to you.
Editor’s note By Richard D. Hannigan June 2008 The ISBA Section Counsel members thank John Shepherd of Williams and McCarthy (Rockford)for the dedication and leadership he has shown as chairman of our section for the past year.
Editor’s notes By Richard D. Hannigan September 2008 Workers' Compensation updates from Editor Rich Hannigan.
Editor’s notes By Richard D. Hannigan March 2008 The co-editors of this newsletter appreciate the positive feedback we have received for each issue that we have produced.
Employee seeking to include per diem in average weekly wage has the burden of proving real economic gain By Erica N. Rogina September 2008 In United Airlines v. Workers’ Compensation Commission, 382 Ill.App.3d 437, 887 N.E.2d 888 (1st Dist. 2008), Justice Hoffman, writing for a unanimous court, vacated the Commission’s calculation of the petitioner’s average weekly wage, finding that the per diem paid to the petitioner is not to be automatically included in the average weekly wage, but rather, as a workers’ compensation claimant, the petitioner must meet her burden of proof on this issue by establishing that she actually realized an economic gain.
Extra scrutiny revisited By Richard D. Hannigan June 2008 The S&H Floor Covering Inc. v. Illinois Workers’ Compensation Commission decision affirmed that it may be time to give credence to Cook v. Industrial Commission and provide for “an extra degree of scrutiny” when determining whether there is sufficient support for the Commission’s decision especially when the Commission makes credibility determinations regardless of the arbitrator’s findings.”
Full-time employee’s overtime to be included in average weekly wage calculation when less than 40 regular hours are worked in a week By Christopher K. Triska December 2008 Based on the finding in Airborne Exp., Inc. v. Illinois Workers’ Compensation Com’n, we have all grown accustomed to simply ignoring and excluding overtime wages indicated in wage statements when the overtime is not mandatory or a consistent part of an employee’s work week. Airborne Exp., Inc. v. Illinois Workers’ Compensation Com’n, 865 N.E.2d 979 (1st Dist. 2007).
If you do not ask the respondent to pay for the medical provider’s expenses does the medical provider count as a choice? By Richard D. Hannigan June 2008 In Comfort Masters v. The Workers’ Compensation Commission et al. (Onasis Youanis) No. 1—07—1951WC, filed May 20, 2008 by the Appellate Court of Illinois, First District, Workers’ Compensation Commission Division, the five justices unanimously answered in the negative.
Illinois Workers Compensation Annual Report 2007 By Brad E. Bleakney December 2008 On October 2, 2008, the Commission released its Annual Report of Operations.
Interview with Arbitrator Gerald Jutila October 31, 2008/November 13, 2008 By Richard D. Hannigan December 2008 Hannigan: First, I’d like to thank you for allowing me to sit down with you. How are you doing today?
IWCC expands employer’s obligation to include unrelated medical treatment By Mark Cosimini December 2008 There are two aspects of every Workers’ Compensation claim which have remained constant for decades.
Making a list and checking it twice By Chris Gullen December 2008 Parties to personal injury claims of Medicare beneficiaries who continue ignoring their duties under federal law could get a wake up call next year.
Mandatory overtime and average weekly wage By Brad E. Bleakney December 2008 The 18-year battle over including or excluding overtime hours in the calculation of average weekly wage continues to rage.
Personal comfort doctrine By Brad A. Antonacci March 2008 This article will analyze the personal comfort doctrine in relation to both the “in the course of” and “arising out of” requirements. This article will also review the case law regarding the personal comfort doctrine and illustrate recent Illinois Workers’ Compensation Commission decisions with respect to the personal comfort doctrine.
A policeman’s disability application cannot be denied based upon one dissenting doctor selected by the Police Pension Board By Daniel P. Jakala & Stanley H. Jakala March 2008 Police Officer Wade was an officer with 20 years of police service. In April 2002, as Wade was escorting a handcuffed prisoner down a steep embankment, the prisoner stumbled and fell, causing the plaintiff to suddenly fall and injure his right knee
Recent cases involving utilization review By Kevin Mechler March 2008 The 2005 amendments to the Illinois Workers’ Compensation Act included the provision for utilization review to evaluate proposed or provided health care services to determine the appropriateness and necessity of those services. 820 ILCS 305/8.7.
Sanctions at the Circuit Court Level By Richard D. Hannigan June 2008 Rarely will the courts allow sanctions pursuant to Supreme Court Rule 137.
Section 12 Medical Examination Reports: Admissible as admission against interest? By William R. Gallagher September 2008 For those of us who represent employees in workers’ compensation cases, it has been a common practice to have the employer or workers’ compensation insurer obtain a Section 12 examination by a physician of their choosing, the primary purpose of which is to obtain an expert medical opinion as to what might be one or more disputed issues, namely, is the employee still temporarily totally disabled; is there a medical causal relationship between the accident or repetitive trauma and the condition in question; is additional medical care/treatment necessary, etc.
Street risk or positional risk? By Bradford J. Peterson March 2008 Issues of compensability for claims of traveling employees often involve a distinct analysis as compared to other classes of employees. The recent case of Potenzo v. Illinois Workers’ Compensation Commission created a further distinction, not just as to traveling employees, but further applied a concept of positional risk for traveling employees subject to an assault. 
When should an application for dedimus postestatem be granted? By John W. Powers September 2008 According to Rules Governing Practice Before the Workers Compensation Commission, evidence depositions of any witness may be taken before hearing only upon stipulation of the parties or upon a dedimus potestatem order. 50 Ill. Adm. Code 7030.60(a) (2008).
Workers’ compensation benefits, FMLA, and retaliatory discharge By Kevin LeFevour June 2008 The recent Seventh Circuit decision of Dotson v. BRP US Inc., 520 F.3d 703; 2008 U.S.App.LEXIS 5897 (7th Cir., 2008) may not be a statement of new law; however, it does provide detailed guidance for employee discharge cases involving workers’ compensation claims under Illinois law and the Family Medical Leave Act (“FMLA”).