Workers’ Compensation Law

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

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2017 Articles

The amount of evidence required to rebut the statutory presumption in 6(f) of the Act By Monica J. Kiehl September 2017 In Johnston v. Illinois Workers’ Comp. Comm’n, et al., the Appellate Court considered the correct standard to be used when rebutting the statutory presumption contained in Section 6(f) of the Act, finding that it is an “ordinary rebuttable presumption,” which merely requires the employer to offer some evidence to show that a petitioner’s condition was caused by something other than his or her occupation.
Anthony R. Holstine v. The Illinois Workers’ Compensation Commission et al.; NO. 2-16-0339WC (Rule 23 decision) When is an 8(d)1 award mandatory? By Deborah Benzing June 2017 Given the Court’s expression of preference of 8(d)(1) awards, respondents should be careful to always consider the use of vocational experts to address whether the injury resulted in an impairment of the capacity to earn or, although unlikely, establish a waiver of 8(d)(1) benefits by claimant on the record when asserting that permanency should be based on 8(d)(2) as opposed to 8(d)(1).
Appellate court affirms decision to deny lump sum order taking overpayments into account By Timothy J. O’Gorman November 2017 A summary of <i>Marie Salisbury v. Illinois Workers’ Compensation Commission</i>.
Appellate court does not extend traveling employee doctrine to police officer commuting to mandatory training By Guy R. Spayth, Jr. January 2017 In Jason Allenbaugh v. IWCC, the Third District Appellate Court, Workers’ Compensation Division, refused to extend workers’ compensation benefits to a police officer who was involved in an automobile accident while traveling to police headquarters to attend a mandatory training session.
Appellate Court establishes statutory guideline for wage differential benefit calculation By Gerald W. Napleton September 2017 The issue in Crittenden v. The Illinois Workers’ Compensation Commission dealt specifically with Section 8(d)(1)’s language concerning “the average amount which a claimant is able to earn in some suitable employment or business after the accident.”
Appellate Court upholds dismissal of Marque Medicos class action suit By Jim Byrnes September 2017 On June 30, 2017, the First District of the Illinois Appellate Court issued a decision affirming an order by Judge Rita Novak of the Circuit Court of Cook County, dismissing with prejudice a class action suit filed by Marque Medicos Fullerton, LLC and other plaintiffs against various workers’ compensation carriers
Appellate court warns practitioners to comply with Supreme Court Rule 341(h)(3) or have their brief stricken By Richard D. Hannigan January 2017 The Appellate Court's decision in Dayton Freight Lines v. IWCC et al. contained an admonition: "In the past we have noted the deficiencies in the briefs which we have received but nevertheless addressed the issues raised and the resolve those appeals without striking the offending brief or appendix. In the future, however, this court may not be so inclined. Practitioners would be well advised to heed our warning."
Attorney fee-share agreements and Rule 1.5(e) of the Illinois Rules of Professional Conduct By Cameron B. Clark January 2017 In Ferris, Thompson, & Zweig, Ltd., v. Esposito, the appellate court determined that the Plaintiff’s complaint over enforcement of an attorney fee-share agreement should not have been dismissed.
Beware of rustlers (and rustlers beware) By Herbert Franks November 2017 Rustlers employ various tactics to lure their quarry. Many will advertise that even if you are represented, they will evaluate your case and tell you its true value. Some advertise to other lawyers that they will pay 50% of the fee to any referring attorney. Others may also have bartenders and beauticians helping them to receive referrals of your cases.
Bringing the insurance carrier into the case By Martin J. Haxel March 2017 An obscure provision of the Workers’ Compensation Act allows a claimant to bring the insurance carrier into the case and have an award entered against it and the employer.
Can CMS dictate to their attorney what defenses it must raise in the context of defending WC cases? By Richard D. Hannigan September 2017 CMS argued that the Atty. Gen.’s refusal to raise the employer/employee defendants constituted a conflict of interest such that special counsel should be appointed. However, the Constitution of the State of Illinois gives the Atty. Gen. the authority to decide what arguments, strategies and litigation tactics to employee in defending claims.
Case analysis and comments By Robert M. Harris September 2017 When do the facts draw an inference that an accident aggravated a pre-existing degenerative condition? A look at Nanette Schroeder v. The Illinois Workers’ Compensation Commission (Swift Transportation).
Country Preferred Insurance Company v. Lori Groen By Herbert Franks June 2017 A setoff provision in an employee’s uninsured motorist policy providing that payments made pursuant to the Worker’s Compensation Act will reduce the amount payable under the policy is enforceable and applicable to payments made by the employer to the employee’s medical providers.
Does Holocker v. IWCC take down Interstate Scaffolding? By Richard D. Hannigan September 2017 The answer is that Holocker helps to clarify Interstate Scaffolding. The respondent’s attorney should use this case as a textbook outline on how to defeat a claim for temporary total disability benefits when the employee has been terminated by his employer prior to reaching maximum medical improvement.
Editor’s notes By Richard D. Hannigan November 2017 An introduction to this issue from Editor Rich Hannigan.
Editor’s notes By Richard D. Hannigan September 2017 News and updates from editor Rich Hannigan.
Editor’s notes By Richard D. Hannigan June 2017 A message and introduction to the issue from Editor Rich Hannigan.
Editor’s notes By Richard D. Hannigan March 2017 News and updates from Editor Rich Hannigan.
Editor’s notes By Richard D. Hannigan January 2017 News and updates from Editor Rich Hannigan.
Failure to file proof of service proves fatal for Circuit Court appeal By Brent Eames March 2017 The case of Springfield Coal Company, LLC v. IWCC, et al. should send a clear message to practitioners that strict compliance with section 19(f)(1) is expected by reviewing courts.
A fee for all or, How do I argue that my prior attorneys are entitled to twenty cents in attorney fees? By Richard D. Hannigan November 2017 Joiner v. IWCC is a must-read for attorneys representing injured workers before the Commission. It involves a case where the Claimant not only terminated one attorney but three attorneys. The last attorney was terminated nine days after she conveyed a $290,000 offer to Claimant.
How temporary partial disability came to be and its application since 2011 By Joshua A. Humbrecht November 2017 TPD marks an effort to balance the financial well-being of the injured worker and the employer’s ability to receive some gainful services of physically limited workers for the money extended in temporary benefits.
The interplay, if any, between a wage differential award and a total permanent award By Lawrence A. Scordino January 2017 A look at Chlada v. Illinois Worker’s Compensation Commission, 2016 Il. App (1st) 150122WC, July 8, 2016.
1 comment (Most recent January 18, 2017)
Intervening injuries and the chain of causation By Herbert Franks March 2017 The Third District Appellate Court recently issued an opinion limiting application of an employer’s intervening injury defense.
Interview with Madam Chairman Joann Fratianni and Ron Rascia By Richard D. Hannigan September 2017 Newsletter editor Rich Hannigan interviews Joanne Fratianni and Ron Rascia.
Is the respondent entitled to a credit for the overpayment of $192,594 in death benefits before the hearing & what does it take to receive commutation of the award? By Mark Jeep June 2017 Marie Salisbury, Widow of Charles Salisbury, deceased v. Ill. Workers’ Compensation Comm’n., 2017 IL App (3d) 160138WC, addresses two issues: 1) the authority of the Commission to allow Respondent a credit against the ultimate award due to an overpayment of benefits to claimant and; 2) the standard required for granting a motion to commute an award for periodic payments to a lump sum payout.
Moran v. IWCC: The flood gates of mental-mental claims did not just break open, but the water is clearer By Joshua A. Humbrecht January 2017 The First District Appellate Court, Workers’ Compensation Division, reversed a Commission decision denying Petitioner’s mental-mental claim as failing to prove he sustained accidental injuries arising out of and in the course of his employment.
Murff v. Illinois Workers’ Compensation Commission: Appellate court examines post-decision benefits By Joseph Guyette June 2017 Specifically, the Appellate Court examined the scope of Section 19(h), and whether an increase in economic disability can justify modifying a final order made pursuant to an arbitration hearing.
Once an IWCC settlement contract is final does IWCC still have jurisdiction to hear any motions? By Richard D. Hannigan June 2017 It would appear from the decision in Millennium Knickerbocker Hotel v. IWCC and Rudy Guzman, Jr. that unless there is an issue regarding penalties the commission lacks jurisdiction to hear any motion.
Pens vs. Bolts: What accidents are made of By Robert J. Finley & Gabriella Bruno March 2017 In two recent decisions, the Appellate Court penned for practitioners the nuts and bolts of the “arising out of” component contributing to accident issues at the Commission.