WCLA MCLE 11-6-2013 Judicial Activism: Nineteen Cases Wednesday November 6, 2013 12:00 pm to 1:00 pm...

WCLA MCLE 11-6-2013 Judicial Activism: Nineteen Cases Wednesday November 6, 2013 12:00 pm to 1:00 pm James R. Thompson Center, Chicago, IL 1 Hour General MCLE Credit

General Rule An accident that occurs while an employee is commuting to or from work does not arise out of and in the course of employment and is therefore not compensable under the Act. Commonwealth Edison Co. v. Industrial Commn, 86 Ill. 2d 534, 537-38 (1981); Warren v. Industrial Commn, 61 Ill. 2d 373, 377 (1975). The rationale for this rule is that the employees trip to and from work is the result of the employees decision where to live, which is a matter of no concern to the employer. Martinez v. Industrial Commn, 242 Ill.App. 3d 981, 985 (1993). Nevertheless, there are several exceptions to this rule. But

Traveling Employee Exception Generally, injuries incurred while traveling to and from the workplace are not considered to arise out of and in the course of ones employment. The determination whether an injury to a traveling employee arose out of and in the course of employment, however, is governed by different rules than are applicable to other employees. Venture-Newberg Perini Stone & Webster v. Illinois Workers Compensation Commn, 2012 IL App (4th) 110847WC. Thus, for instance, a traveling employee is deemed to be in the course of his employment from the time the employee leaves home until he or she returns. Cox v. Illinois Workers Compensation Commn, 406 Ill. App. 3d 541, 545 (2010). Accordingly, we initially address whether claimant is a traveling employee.

Ronald Daugherty v. The Venture-Newberg 06 WC 018366 Arbitration Decision 4-18-08 DA 3-24-06 Union pipefitter injured in MVA on way from motel to job site Further, Petitioner was not a traveling employee of NewbergPetitioner was not required to accept the Newberg job at the Cordova Plant under the union contract. Rather it was his voluntary choice to take the job outside local union territory, which would require travel and temporary lodging.

Ronald Daugherty v. The Venture-Newberg 10 IWCC 0752 Commission Decision 8-5-10 (2-1): The Commission views the evidence and applicable law differently and finds that Petitioner sustained an accident arising out of and in the course of his employment An employee will be considered in the course of employment while traveling to or from work if the course or method of travel is determined by the demands or exigencies of the job rather than by his own personal preference as to where he chooses to Another exception to the general rule is that of the traveling employee.It has been held that injuries are compensable where traveling employees were engaged in activities other than those they were specifically instructed to perform by their employers. A traveling employee is one who is required to travel away from the employer's premises in order to perform his job. The key factors to this test are 'reasonableness' and 'foreseeability of the activity the employee was performing when he was injured. In the Commission's view, Petitioner was in the course of his employment while traveling to work on the date of the accident since the course or method of travel was determined by the demands or exigencies of the job, rather than by his own personal preference multiple witnesses, including Petitioner, testified consistently regarding the exigencies of the job. Although Respondent did not demand that Petitioner lodge within a certain distance from the plant in order to perform the work that was required, Petitioner had to stay, as a practical matter, a reasonable commuting distance from the plant. Respondent could not meet its obligations under the General President's Agreement for Maintenance Contract with Exelon were it not for the willingness of employees like Petitioner to work long hours and make themselves available in the event of an emergency.

The Venure-Newberg-Perini v. IWCC 2010 MR 509 Circuit Court Seventh Judicial Circuit, Sangamon County, 8-28-11 Undisputed facts Misapplied the law to the factsdecision of the Commission is improper as a matter of lawdecision of Arbitrator denying the claim is reinstated. Not demands of job but personal preference; not a traveling employee Inequitable and unjust result (What standard of review is this?)

The Venure-Newberg-Perini v. IWCC 2012 IL App (4 th ) 110847WC Appellate Court, 12-6-12, 3-2 decision, reverses Circuit Court Our first question, then, is whether the claimant qualified as a traveling employee. A "'traveling employee'" is defined as "one who is required to travel away from his employer's premises in order to perform his jobIt is undisputed that 1) the claimant in this case was employed by Venture-Newberg; 2) he was assigned to work at a nuclear power plant in Cordova, Illinois, operated by Exelon in excess of 200 miles from his home; and 3) the premises at which the claimant was assigned to work were not the premises of his employer. These facts establish the claimant's status as a traveling employee. (Manifest weight?) The test of whether a traveling employee's injury arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged at the time of his injury and whether that conduct might have been anticipated or foreseen by Venture-Newberg The question is one of fact to be resolved by the Commission, and its determination should not be disturbed on review unless it is against the manifest weight of the evidenceIn this case, the Commission found that Venture-Newberg must have anticipated that the claimant, recruited to work at Exelon's facility over 200 miles from the claimant's home, would be required to travel and arrange for convenient lodging in order to perform the duties of his job, and that it was reasonable and foreseeable that he would travel a direct route from the lodge at which he was staying to Exelon's facility This determination is clearly not against the manifest weight of the evidence.

Stanislawa Mlynarczyk v. Sophie Obrochta 08WC001595 Facts DA 12-5-07 60 year old janitorial worker Fell on ice and snow in driveway at home and fractured left arm Husband & wife team using Respondents unmarked vehicle (facts & circumstances relating to use of vehicle?) Had completed cleaning assignments and had gone home for meal (unpaid meal time) Went out again to meet another cleaning crew for evening assignment

Stanislawa Mlynarczyk v. Sophie Obrochta 08WC001595 Arbitration Decision Arbitrator Hennessy, 1-26-10 In this case, the employer supplied a van for transportation so that the Petitioners husband could drive himself, the Petitioner and other employees to an from job sitesThe employer clearly benefitted from providing transportation Becker, 308 Ill.App.3d 278 (1999) (expands the range of employment by providing means of transportation) She was a travelling employee and the risk of injury was a risk to which the Petitioner, by virtue of her employment, was exposed to a greater degree than the general public. Potenzo, 378 Ill.App.3d113 (2007) Award for Petitioner: Medical, 54 weeks TTD, 65% loss of hand, penalties & fees

Stanislawa Mlynarczyk v. Sophie Obrochta 11 IWCC 0747 Commission Decision Unanimous, 7-29-11 (T)he Commission reverses the Decision of the Arbitrator and finds that Petitioner failed to prove she sustained accidental injuries arising out of and in the course of her employment While the Commission does not find Petitioner to be a traveling employees, it notes that petitioner had not yet left her property or even entered a vehicle when she was injured, was not paid for time between jobs or mileage for travel and was not exposed to any of the risks of a traveling employee. Even if the Commission found petitioner to be a traveling employee, it would not circumvent the requirement that the injury arise out of and in the course of the employment Concern: ANY movement by Petitioner at any time during the night or day would lead to a compensable claim

Stanislawa Mlynarczyk v. Sophie Obrochta 11 MR 766 Circuit Court Decision Will County Circuit Judge Bobbi N. Pentrungaro, 5-16-12 The Decision of the Commission is affirmed. Not a traveling employee: This finding is not in error (N)ot injured in the course of employmentnot paid by the employer for their time during this lunch break.

Mlynarczyk v. IWCC 2013 IL App (3d) 120411WC Appellate Court Opinion Unanimous, 5-30-13 We reverse the decision of the Commission and remand the matter to the Commission to reinstate the arbitrators awards of medical expenses, TTD benefits, and PPD benefits. With respect to the narrow issue of whether claimant is a traveling employee, we agree with claimant that the de novo standard of review applies. In the present case, claimant did not work at a fixed job site. Rather, her duties required her to travel to various locations throughout the Chicago land area. As such, we find that she qualifies as a traveling employee.

Mlynarczyk v. IWCC 2013 IL App (3d) 120411WC Appellate Court Opinion The test whether a traveling employees injury arose out of and in the course of employment is the reasonableness of the conduct in which she was engaged at the time of the injury and whether that conduct might have been anticipated or foreseen by the employer manifest weight In this case, the Commission determined that even if it had found claimant to be a traveling employee, it would still deny compensation. We conclude that this finding is against the manifest weight of the evidenceSince claimant is a traveling employee, her exposure to the hazards of the streets is, by definition, greater quantitatively than that of the general public, as long as her conduct at the time of the injury was reasonable and foreseeable to the employer In so holding, we find misplaced the Commissions concern that such a holding would render compensable ANY movement by [claimant] at any time during the day or night. (Emphasis in original.) The Commission does not explain why it believes this would be the case, and we note that an employee seeking benefits under the Act would still be required to establish that his injury arose out of and in the course of his employment as well as the reasonableness of the conduct

Kertis v. IWCC 2013 IL App (2d) 120252WC At issue is whether the claimant's injuries, suffered while he was walking through a public parking lot en route to the St. Charles office where he worked, arose out of his employment. The determination of whether an injury to a traveling employee arose out of and in the course of employment is governed by different rules than are applicable to other A "traveling employee" is one whose work requires him to travel away from his employer's office. It is not necessary for an individual to be a traveling salesman or a company representative who covers a large geographic area in order to be considered a traveling employeeRather, a traveling employee is any employee for whom travel is an essential element of his employment.A traveling employee is deemed to be in the course of his employment from the time that he leaves home until he returnsAn injury sustained by a traveling employee arises out of his employment if he was injured while engaging in conduct that was reasonable and foreseeable, i.e., conduct that "might normally be anticipated or foreseen by the employer.

Kertis v. IWCC 2013 IL App (2d) 120252WC Thus, travel was clearly an essential element of the claimant's job, rendering him a traveling employee as a matter of law Accordingly, the dispositive question is whether the claimant was injured while engaging in conduct that was reasonable and that might reasonably be anticipated or foreseen by the employer. The undisputed evidence establishes that both of these conditions were satisfiedThe claimant's job duties required him to travel from the Hoffman Estates office to the St. Charles office on a regular basis, and the employer did not provide employee parking at the St. Charles office. Accordingly, the claimant was required to park on the street or in a nearby parking lot. It was both reasonable and foreseeable that the claimant would regularly park in a municipal parking lot close to the St. Charles office and walk to the office from that lot. Thus, under the rules applicable to traveling employees, the undisputed facts establish that the claimant's injuries arose out of his employment. (U)nder the analysis applicable to traveling employees, we do not need to address the claimant's alternative argument that he was exposed to a neutral risk more frequently than members of the general public by virtue of his employment.

Jeffrey Cox v. Berger Excavating 06WC050930 DA 7-27-06 Petitioner construction foreman Company pick-up truck Leaves work early with permission Stops at bank to get money: 1) personal reason & 2) buy work cooler MVA in intersection shortly before re-entering Route 12

Jeffrey Cox v. Berger Excavating 06WC050930 (T)he Arbitrator is not persuaded that the Petitioner had a dual purpose to also withdraw cash to purchase a cooler for drinks for his crew. Petitioner's testimony, that he withdrew money to buy a cooler, lacked credibilityThe Arbitrator notes, however, that even if the Petitioner had a "dual purpose", it is of no consequence since it is clear that the detour would have been made anyway (to get cash to pay the carpenters), regardless of the alleged business purpose, and would therefore be considered to be "personal". The Arbitrator finds that the car accident occurred before the Petitioner returned to the northbound lanes of Route 12. based upon the Arbitrator's review of the pictures of the area where the accident occurred as well as Petitioner's own testimony as to the accident. Thus, while the Petitioner was in the process of returning to his regular route home not actually returned to that route. However, an employee is not covered while driving a company vehicle if the employee engages in a deviation from his employment or a "frolic and detour." Such actions remove the employee from the course of his employment. An employee will resume his work-related travel once he re-enters the course of his employment following a personal deviation.

Cox v. IWCC 406 Ill. App.3d 541 (2010) The claimant argues that the facts of this case support the proposition that, at the time of his accident, he was a traveling employee operating a motor vehicle in a foreseeable manner. A "traveling employee" is one who is required to travel away from his employers premises in order to perform his job.Contrary to the Commissions finding, the facts of this case establish, without question, that the claimant was a traveling employee.

Cox v. IWCC 406 Ill. App.3d 541 (2010) The determination of whether an injury to a traveling employee arose out of and in the course of employment is governed by different rules than are applicable to other employees. As a general rule, a traveling employee is held to be in the course of his employment from the time that he leaves home until he returns. However, a finding that a claimant is a traveling employee does not relieve him from the burden of proving that his injury arose out of and in the course of employment. The test for determining whether an injury to a traveling employee arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged and whether the conduct might normally be anticipated or foreseen by the employer.Under such an analysis, a traveling employee may be compensated for an injury as long as the injury was sustained while he was engaged in an activity which was both reasonable and foreseeable.

Cox v. IWCC 406 Ill. App.3d 541 (2010) The real question for resolution in this case is whether, at the time of his injury, the claimant was in the course of his employment with Berger. The Commission found that he was not. We disagree. (U)nless it is against the manifest weight of the evidence. In such situations, the transportation is considered to expand the 'in the course of' element while apparently providing a risk incidental to the exigencies of employment that satisfy the 'arising out of element. We believe this evidence is more than sufficient to support the inference that the claimant went to the bank for personal reasons and not to withdraw money for any purpose connected to his work. However, we do not believe that the fact that the claimant deviated several hundred feet from his route home for personal reasons necessarily resolves the question of whether his injuries arose out of and in the course of his employment.

Cox v. IWCC 406 Ill. App.3d 541 (2010) The claimants deviation from the least circuitous route to his home in order to go to the bank for personal reasons appears to be insubstantial.Although the claimant made this slight deviation from his route home in order to go to the bank, at the time of his accident, he had already made his withdrawal and was again on his way home. We believe, therefore, that he had re-entered the course of his employment at the time of his injury. We reject the Commissions finding that he had not returned to the course of his employment because he had not actually returned to his usual route home when he was involved in the vehicular collision. The proper question is whether the facts establish that he was on his way home when he was injured. We, therefore, reverse the judgment of the circuit court, vacate thedecision of the Commission, and remand this matter to the Commission for further proceedings consistent with this decision.

Potenzo v. IWCC 378 Ill.App.3d 113 (2007) Jewel truck driver injured by unknown assailant while making a delivery at store in Uptown (4355 N. Sheridan) Arbitrator, IWCC & Circuit Court all deny benefits Petitioner failed to prove that he suffered an injury that arose out of his employment Appellate Court reverses: manifest weight

Potenzo v. IWCC 378 Ill.App.3d 113 (2007) The claimant argues that, as a traveling employee, he was exposed to all street risks to a greater degree than the general publicWe agree. (C)laimant was a traveling employee whose duties required him to travel the streets and unload a truck in areas accessible to the public. The risk of being assaulted, although one to which the general public is exposed, was a risk to which the claimant, by virtue of his employment, was exposed to a greater degree than the general public. No personal motive for the attack Activity reasonably foreseeable by Jewel

Potenzo v. IWCC 378 Ill.App.3d 113 (2007) C.A. Dunham, 16 Ill.2d 102 (1959): P wins; traveling employee killed in plane explosion set by another passenger Schulteis, 96 Ill.2d 340 (1983): P loses; not a traveling employee; assaulted at office and failed to show it was work-related Springfield School District, 293 Ill.App.3d 226 (1997): P wins; traveling(?) security guard bit by stray dog Heath, 256 Ill.App.3d 1008 (1993): not mentioned by App. Court; relied on by Arbitrator; P loses; vs. Jewel, store clerk shot dead by unknown assailant in store

Ruth Lindquist v. Metropolitan Water Reclamation District 06WC000113 DA 11/09/05 Petitioner account clerk Responsible for making deposits Leaves office to go to bank branch about 1 blocks away Stumbled on 6 driveway on public sidewalk, fell and fractured both arms

Ruth Lindquist v. Metropolitan Water Reclamation District 06WC000113 Arbitrator Jutila, 1/24/07 Petitioners claim for compensation is denied. Parties stipulate to in the course of Arising out of: Respondent cites Best Foods Anomolous situation: on-premises (prove less) v. off-premises (prove more) Petitioner must prove that she was exposed to the hazard to a greater degree than the general public. Petitioner has failed to prove a greater degree of exposure to the hazard.

Ruth Lindquist v. Metropolitan Water Reclamation District 08 IWCC 492 Commission Decision, 5/22/08, 2-1 (Mason & Rink, Lindsay dissenting) After considering the entire record, the Commission reverses the Decision of the Arbitrator and finds that Petitioner's accidental fall of November 9, 2005 arose out of her employment The Arbitrator found that Petitioner's accident did not arise out of her employment. He acknowledged that Petitioner was required to make regular trips to the bank on behalf of Respondent but found, citing Caterpillar that these trips did not place her at an increased risk of injury.Caterpillar The Commission agrees and notes that Petitioner's argument finds support in HomerdingIn the instant case, it is undisputed that Petitioner fell while performing a required task. It is this fact which distinguishes the instant case from Caterpillar and Best Foods.HomerdingBest Foods While the Commission finds it unnecessary to reach the issue of whether Petitioner was exposed to an "increased risk", it notes that the claim is also compensable under this alternative analysis. Petitioner was regularly required to traverse the streets in order to make deposits on behalf of Respondent and was thus exposed to the risk of the "dip" in the driveway with greater frequency than members of the general public. In City of Chicago the Supreme Court held that "where the proof establishes that the work of the employee requires him to be on the street to perform the duties of his employment, the risks of the street become one of the risks of the employmentCity of Chicago Dissent: Petitioner was injured on a public street while making a random, one-time delivery. She was not required by her employer to take the route she chose. She testified there were no defects or debris where she fell. Furthermore, she was unsure whether she stumbled or not. While the bank deposits were in the purse Petitioner was carrying with her, there is nothing in the record to suggest the purse contributed to her fall. While her job duties took her to the place of injury that alone should not be enough to establish liability. The Petitioner was exposed to no greater risk than that of the general public and compensation should have been denied.

Metropolitan Water Reclamation District of Greater Chicago v. IWCC 08 L 050623 Judge James Tolmaire, Circuit Court of Cook County, 8/24/09 (T)his Court finds the Commissions decision contrary to law and against the manifest weight of the evidence. The Commissions decision is reversed. Carterpillar and Best Foods control Thus the decision of the Commission is contrary to law as it applied the wrong standard for compensable injuries(1) her presence at the site of the fall was required in the performance of her duties and (2) she was exposed to a risk common to the general public but to a degree greater than other persons. Reliance on Homerding and City of Chicago is misplaced

Metropolitan Water Reclamation District of Greater Chicago v. IWCC 407 Ill.App3d 1010 (2011) Hoffman, McCullough, Hoffman & Stewart; Holdridge specially concurring Based on the record presented, the manifest weight of the evidence established that the injuries sustained by the claimant on November 9, 2005, arose out of and in the course of her employment with the District, and, as a consequence, she is entitled to benefits under the Act. We, therefore, reverse the judgment of the circuit court and reinstate the decision of the Commission which awarded the claimant benefits under the Act. Accordingly, the risk that the claimant would be injured as a result of a fall while traversing a public sidewalk and commercial driveway was neutral in natureSuch an increased risk may be either qualitative, such as some aspect of the employment which contributes to the risk, or quantitative, such as when the employee is exposed to a common risk more frequently than the general public. Potenzo

Metropolitan Water Reclamation District of Greater Chicago v. IWCC 407 Ill.App3d 1010 (2011) Under the "street risk" doctrine, where the evidence establishes that the claimants job requires that she be on the street to perform the duties of her employment, the risks of the street become one of risks of the employment, and an injury sustained while performing that duty has a causal relation to her employment. Potenzo In such a circumstance, it is presumed that the claimant is exposed to risks of accidents in the street to a greater degree than if she had not been employed in such a capacity, and the claimant will be entitled to benefits under the Act. City of Chicago. A six-inch "dip" in a commercial driveway is a street hazard, and, though the risk of tripping and falling on such a hazard is a risk faced by the public at large, it was a risk to which the claimant, by virtue to her employment, was exposed to a greater degree than the general public. Moreover, even if the claimant were required to present proof that she faced an increased risk, she has met that burden. she was required to use the public way in making the bank deposits two or three times each week. The Commission specifically found that this evidence established that the claimant was exposed to the risk the "dip" in the driveway with greater frequency than members of the general public.

Metropolitan Water Reclamation District of Greater Chicago v. IWCC 407 Ill.App3d 1010 (2011) Holdridge concurring: As this case is simply one where the Commission found that the claimant was exposed to risk greater than the general public by virtue of the number of times she was required by her employment to be exposed to the sidewalk defect, I see no need to go further with analysis of the so-called "street risk" doctrine. The doctrine, which is in essence the "traveling employee" doctrine (See Potenzo), does nothing to clarify what a claimant must do to establish that his or her injuries arose out of their employment. (P)articularly unappealing doctrine because raises a lot of questions

Johnson v. IWCC 2011 IL App (2d) 100418WC Johnson v. IWCC, 2011 IL App (2d) 100418WC: Appellate Court says Will County sheriff was back in the course of his employment when he was responding to dispatch in his patrol car, after leaving county to perform personal errand (Commission had denied benefits 2-1 for personal deviation) DE NOVO!

Denzil Smothers v. WCFPD 09 WC 04916 DA 6-2-08; 49 year old heavy equipment operator feels searing pain in right shoulder while yanking on tailgate Prior injury 5-8-03 (pro se): right lateral epicondylar reconstruction and right carpal tunnel release; full duty; no more treatment (04WC022167: 15% arm; 15% hand) Dr. Fuentes (Parkview) Operative report: superior and anterior labrum debrided; full thickness tear of anterior portion of supraspinatus tendon; acromioplasty; rotator cuff was repaired using swivel lock and two anchors Released by PT to medium/heavy job He readily admits to performing his full duties, yet has to make significant modifications because of his shoulder condition Petitioners IME Dr. Coe

Denzil Smothers v. WCFPD 09 WC 04916 (Arb. Decision 9-9-09 ) Whether Petitioner's injury should be compensated as a partial disability to the whole person under Section 8(d)(2) of the Act. Due to the issue of credit, Respondent claims that Mr. Smothers is entitled only to compensation for a specific, scheduled loss of use of the right arm under Section 8(e) of the Act? Similar to Guynes 06 IWCC I0883, where the Arbitrator found that Petitioner's symptoms to her hands caused a permanent change in the manner in which she performs her job duties. She was a caseworker, who held the same post injury job as before. An Award of 20% 8(d)(2) for injuries to the hands was affirmed. Here Petitioner's testimony was clear, unrebutted and medically corroborated that he had significant pain and weakness which caused him to do virtually all work activities left handed, when possible, after attempting to perform them for short periods of time right hand, thus significantly altering the manner in which he performs his duties.Guynes 06 IWCC I0883, The mere fact that Petitioner's injured body part happens to be one of those enumerated in the 8(e) schedule, standing alone, does not deprive the Commission of its authority to award partial disability to the whole person under 8(d)(2). The express, unambiguous terms of 8(d)(2), allow such an award, where Petitioner has sustained injuries covered by Section 8(e) which partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity. 820 ILCS 305/8(d)(2).820 ILCS 305/8(d)(2) General Assembly did not intend 8(e) to impose any limit upon the Commission's power to award compensation under 8(d). In General Elec., 89 Ill.2d 432 ("Williamson" case), Supreme Court reviewed the legislative history and determined that the 1975 amendments were intended to render the 8(e) schedule non-exclusive.General Elec., 89 Ill.2d 432

Denzil Smothers v. WCFPD 09 WC 04916 (Arb. Decision cont.) In General Elec. Co., 144 IIl.App.3d 1003, ("Campbell" case), the Appellate Court expressly followed Williamson, holding that a claimant whose injuries were sustained after the effective date of the 1975 statutory amendments may proceed under either 8(d) or 8(e), but not both. In the case at bar, Petitioner clearly sustained injuries which partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity, which is the exact language of 8(d)(2). In doing some work activities, such as sawing branches, he can only apply the forces necessary with his left, non- dominant arm. Other work activities he will begin with his right arm, but it weakens or tires easily and he will have to then use his left arm. Either is a partial incapacity within the meaning of section 8(d)(2), and neither is inconsistent with his full duty release, as he will perform such duties, albeit with modifications for the partial incapacity. The Arbitrator Awards 25% partial disability under Section 8(d)(2). The Arbitrator notes that the same surgery in the case of a maintenance mechanic, with overhead restrictions and some loss of earnings, resulted in an Award of 50% 8(d)(2). Clemmons, 04 IIC 0316. Because the Award is under Section 8(d)(2), there is no credit to Respondent under Section 8(e) 17 See Isaars, 138 Ill. App. 3d 392 (1985). Clemmons, 04 IIC 0316.Isaars, 138 Ill. App. 3d 392 (1985).

Denzil Smothers v. WCFPD & WCFPD v. IWCC & Smothers Commission : 10 IWCC 00582; unanimous decision; affirmed & adopted; 7-14-10 Will County Circuit Court: 10 MR 673; Judge Bobbi N. Petrungaro; 1-3-11 Incorrectly determined that Petitioner was entitled to MAW as opposed to loss of arm (to which prior credit would have applied)? Clearly erroneous standard: Citing General Electric, 89 Ill.2d 432 (1982); Lusietto, 174 Ill. App.3d 121 (1988); McDaneld, 307 Ill.App.3d 1045 (1999), The current trend in the law is to allow the Commission to choose between Section 8(d)2 or Section 8(e)testimony supportspartially incapacitates Commission was not clearly erroneous in its application of the facts to the law. Manifest weight? Record indicates that The Commissions decision was not against the manifest weight of the evidence.

WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC Unanimous Appellate Court Opinion On appeal, Respondent argues that the Commissions award of benefits pursuant to Section8(d)2 was erroneous. According to Respondent, the record establishes that Petitioner has returned to work at full duty. Respondent also points out that Petitioner is under no medical restrictions. Thus, Respondent reasons, it was improper to award Petitioner benefits under section 8(d)2 on the basis that Petitioner proved a partial incapacity from pursuing the duties of his usual and customary line of employment. Instead, Respondent maintains, the Commission should have awarded Petitioner benefits for a scheduled loss to the right arm as set forth in section 8(e)(10). Respondent concedes that the injury to claimants right shoulder partially incapacitated himAccording to Respondent, Petitioner failed to establish that this partial incapacity prevents him from pursuing his usual and customary line of employment because claimant has returned to work at full duty resuming all prior job activitiesThe determination of the extent or permanency of an employees disability is a question of factmanifest weight ? The Commissions award of benefits Section 8(d)2 on the basis that the injury to claimants right shoulder partially incapacitate[s] him from pursuing the duties of his usual and customary line of employment is against the manifest weight of the evidence. The record simply does not support this finding.

WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC Because Petitioner has failed to prove entitlement to benefits under the third Section 8(d)2, we must determine whether PPD benefits are appropriate under another provision of the Act. Respondent insists that claimants shoulder injury should be compensated as a scheduled loss to the right arm under section 8(e)(10). However, Respondents argument assumes that an injury to the shoulder is an injury to the arm. Stautory construction because this court has not had occasion to consider the classification of a shoulder injury (?) Dictionary definitions: The word arm is defined as the segment of the upper limb between the shoulder and the elbow; commonly used to mean the whole superior limb. Stedmans Medical Dictionary 127 (27th ed. 2000); see also Websters Third New International Dictionary defining arm as a human upper limb *** the part of an arm between the shoulder and the wrist. This definition clearly indicates that the shoulder is not part of the arm. Other jurisdictions: MD, IA, AR, AZ Because the plain and ordinary meaning of the statute establishes that the arm and the shoulder are distinct parts of the body, if Petitioner sustained an injury to his shoulder, an award for a scheduled loss to the arm would be improper.

WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC Here, the evidence clearly establishes an injury to the shoulder, not to the arm by reference to surgical report While the injury to Petitioners right shoulder may impact the use of his arm, the initial injury was to his shoulder, and a scheduled award for the loss of use of the right arm would therefore be inappropriate. Since Petitioners shoulder injury does not qualify as a scheduled loss to the arm, we turn to other provisions of the Act for guidance. We find applicable the first subpart of section 8(d)2. That provision provides for a person-as-a- whole award where the permanent injuries are not covered by section 8(c) or 8(e) of the Act. In sum, although we disagree with the Commissions rationale, we ultimately find that the Commission properly awarded claimant benefits for an injury to the person as a whole under section8(d)2 of the Act. Accordingly, we affirm the judgment of the circuit court of Will County, whichconfirmed the decision of the Commission. Before concluding, we are cognizant that the applicability of the first subpart of section 8(d)2was not raised below. We also acknowledge respondents suggestion that any argument that a shoulder is not an arm for purposes of the statutory schedule has been waived because claimant didnot raise this issue at the trial level. In fact, our review of the record indicates that while the latterissue was not raised before the Commission, it was raised in front of the circuit court. In any event,waiver is a rule of administrative convenience. Klein Construction/Illinois Insurance GuarantyFund v. Workers Compensation Commn, 384 Ill. App. 3d 233, 238 (2008). We may overrideconsiderations of waiver in furtherance of providing a just result. Klein Construction/IllinoisInsurance Guaranty Fund, 384 Ill. App. 3d at 238. We also point out that we may affirm a decisionof the Commission if there is any legal basis in the record to do so, regardless of whether theCommissions reasoning is correct or sound

WCFPD v. IWCC & Smothers 2012 IL App (3d) 110077WC Before concluding, we are cognizant that the applicability of the first subpart of section 8(d)2 was not raised below. We also acknowledge Respondents suggestion that any argument that a shoulder is not an arm for purposes of the statutory schedule has been waived because Petitioner did not raise this issue at the trial level. In fact, our review of the record indicates that while the latter issue was not raised before the Commission, it was raised in front of the circuit court. In any event, waiver is a rule of administrative convenience. Klein Construction, 384 Ill. App. 3d 233 (2008). We may override considerations of waiver in furtherance of providing a just result. We also point out that we may affirm a decision of the Commission if there is any legal basis in the record to do so, regardless of whether the Commissions reasoning is correct or sound.

Cassens v. IIC 218 Ill.2d 519 (2006) Respondent files Motion to Suspend Benefits on 8(d)1 wage- differential award entered 10 years earlier Appellate Court says 19(h) applies and Commission lacks jurisdiction after 30 months; no right to re-open under 8(d)1 Supreme Court agrees, no independent right to re-open under 8(d)1 New Section 19(h): 60 months in the case of an award under Section 8(d)1

E.R. Moore v. IWCC 71 Ill.2d 353 (1978) The finding of a permanent medical disability does not, however, resolve the question of whether an employee is totally and permanently disabled within the meaning of section 8(f) of the Workmen's Compensation Act As noted above, the degree of the disability is dependent upon the extent to which the medical disability has impaired the employee's earning capacity or ability to work. Evidence that the employee has been or is able to earn occasional wages or to perform certain useful services neither precludes a finding of total disability nor requires a finding of partial disability. For the purposes of section 8(f), a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. Conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering health or life, such employee is not totally and permanently disabledThe focus of the Commission's analysis is on the degree to which the employee's medical disability impairs his employability. In arriving at its determination, the Commission must consider the employee's age, experience, training and capabilities. The initial burden of proving the extent of the disability is on the employee to show that, as a result of a work-connected injury, he is unable to perform or obtain regular and continuous employment for which he is qualified. When, however, the nature or extent of the disability, coupled with the factors mentioned above, indicates that the employee cannot perform any services except those for which no reasonably stable labor market exists, the Commission may enter an award for total permanent disability despite the employee's failure to show that work was not available When the employee has made the above showing, it is incumbent upon the employer to come forward with evidence to show not only that the employee is capable of engaging in some type of regular and continuous employment, but that such employment is reasonably available. (2 A. Larson, Workmen's Compensation sec. 57.61, at 10 -- 136 to 10 -- 137.) Placing this burden on the employer is justified in that it is much easier for the employer, by virtue of his contact with the labor market, to prove the claimant's employability than it is for the employee to attempt to prove the universal negative of being totally unemployable. This burden of proof is somewhat similar to that borne by the employer who files a petition seeking to modify an award pursuant to section 8(f) (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(f)).

Sylvia Timms v. CTA 10 WC 020440 DA 3-18-10 51 yo bus operator struck and killed passenger Spoke with paramedics, CPD an manager saw that she was shaken up and was given comp psych 4-27-10 administratively separated 5-28-10 began treating with psychologist Dr. D. Kelley for anxiety disorder 7-120-10 citing Pathfinder, unrebutted opinion of Dr. Kelley and credible testimony of Petitioner, Arbitrator finds accident and awards TTD on 19(b) 3-11-11 Commission affirms & adopts on 2-1 vote; dissenter says Petitioner did not really know what happened 12-20-11 Circuit Court confirms, Petitioner is credible

CTA v. IWCC 2013 IL App (1 st ) 120253WC At issue is whether the Commission erred in finding that the claimant established a compensable psychological injury under the "mental-mental injury" theory that our supreme court announced in Pathfinder However, relying upon this court's decision in General Motors Parts Division 168 Ill. App. 3d 678 (1988), the employer argues that a claimant may recover under Pathfinder only if she proves that a sudden, severe emotional shock caused her to suffer a psychic injury that was "immediately apparent.We disagree. As a preliminary matter, we find General Motors inapposite. The case at bar involves a claim of psychological injuries stemming from a single, traumatic, work-related incident. Accordingly, it falls squarely within the ambit of Pathfinder General Motors, on the other hand, involved a claim of psychological injuries that appeared to have arisen gradually from a variety of factors Pathfinder does not compel the claimant to prove, in addition,that the psychological injury resulting from the emotional shock was "immediately apparent.Under Pathfinder, the emotional shock needs to be sudden not the ensuing psychological injury The Commissions finding that the claimant's delay in obtaining medical treatment was not a bar to recovery given her credible testimony and Dr. Kelley's unrebutted psychological opinion was not against the manifest weight of the evidence

Ismael Diaz v. Village of Montgomery 07WC040520 DA 5-29-07 28 year old police officer Confronted by subject with gun, toy gun with orange tip Could not sleep that night and following day began to feel anxiety 6-1-07 seeks treatment at Rush Copely believing dehydration, followed up 4 days later at Dryer Clinic and began treatment for post traumatic stress disorder Arbitrator awards 15% loss MAW

Ismael Diaz v. Village of Montgomery 07WC040520 Arbitrator Hennessy, 5-13-10 The records of Dreyer Medical Clinic confirm that Petitioner's condition of ill-being is causally related to the May, 2007 incident. The records confirm that the incident caused Petitioner to develop anxiety and panic attacks Subsequent to Pathfinder, numerous Commission decisions have upheld psychiatric disability claims for police officers: Meginnis v. Village of Riverdale Police Department, upholding permanent total disability award for a police officer who suffered posttraumatic stress disorder as a result of involvement in a shooting incident; Verkler v. Village of Bourbonnais, upholding permanent partial disability award for police dispatcher who suffered post-traumatic stress disorder after taking a call from a citizen involved in a violent home invasion incident; Kaminski v. Elgin Police Department, affirming 50% person as a whole disability award for a police officer diagnosed with posttraumatic stress disorder subsequent to involvement in a fatal shooting incident. The Arbitrator concludes and finds that an accident occurred on May 29, 2007 that arose out of and in the course of Petitioner's employment by Respondent.

Ismael Diaz v. Village of Montgomery 11 IWCC 0739 2-1 Commission Decision; July 25, 2011 The Commission hereby reverses the Arbitrator's decision and finds that Petitioner failed to prove that he sustained a compensable accident. It is well established that recovery for psychological disability absent physical trauma is permitted under the Act. In Pathfinder Pathfinder In finding that Petitioner failed to prove accident, we rely on General Motors 168 Ill.App.3d 678 (1988 The court rejected the idea that Pathfinder was meant to be read broadly to include cases involving any mental disability which can be traced to any nonphysical traumatic work related incidentThe Commission adopts a more narrow construction of Pathfinder as expressed in the General Motors decision. In this case, Petitioner is a police officer and is trained in weapons training. Petitioner is also trained to handle encounters with subjects who are considered armed and dangerous.General Motors 168 Ill.App.3d 678 (1988 In Sole v. Livingston County, 10 IWCC 1121, the Commission affirmed the Arbitrator's decision denying benefits to the claimant who worked as a dispatcher at a 911 call center. The claimant alleged that he sustained posttraumatic stress disorder after handling a call involving a residential fire.Sole v. Livingston County, 10 IWCC 1121, In Ushman v. City of Springfield, 08 IWCC 0234, the Commission affirmed the Arbitrator's finding that Petitioner failed to prove that he sustained a compensable accident. The claimant, a police officer, was involved in a chase of a murder suspect who was considered to be armed and dangerous. The suspect fired his rifle at the claimant, and the claimant fired three shots at the suspect. The Arbitrator found that "the occurrence on December 16, 2004 would not be an uncommon event of significantly greater proportion than that to which he is subjected as a police officer."Ushman v. City of Springfield, 08 IWCC 0234,

Ismael Diaz v. Village of Montgomery 11 IWCC 0739 (Dissent) I respectfully disagree with the majority opinion and would affirm and adopt the Arbitrator's decision. I believe that Petitioner has established that he sustained compensable psychological injuries, namely posttraumatic stress disorder. Whether the handgun was a real gun or a toy gun is immaterial. The subject, at all times, was treated as armed and dangerous. Not an event that is common or anticipated in the general working population or among police officersuncommon event of significantly greater proportion than what he would otherwise be subjected to in the normal course of his employment In Kaminski v. Elgin Police Department, 02 WC 30545, the Commission adopted the Arbitrator's finding that the claimant, a police officer, sustained compensable accidents on August 25, 2001, and September 4, 2001. On August 25, 2001, the claimant was investigating the abduction and sexual assault of a 9 year old boy. In Verkler v. Village of Bourbonnais, 95 WC 28975, the Commission affirmed and adopted the Arbitrator's decision awarding compensation to a claimant who [*15] was a dispatcher for respondent's police department. The claimant received an emergency telephone call from a woman who reported that there was an intruder in her home who was stabbing people, including children. Kane County Circuit Court confirms IWCC denial (11MR377)

Diaz v. IWCC 2013 IL App (2d) 120294 WC This case requires us to consider the proof necessary for a claimant to recover in a workers' compensation claim for a psychological disability in the absence of a physical injury, a type of case commonly known as a "mental-mental" claim. The sole issue raised by the claimant in this appeal is whether, as a police officer, he was improperly held to a higher standard of proof than workers in other occupations. We hold, as a matter of law, that the Commission applied the wrong standard to this claim. Accordingly, we reverse the decision of the Commission and remand for further proceedings. When there is no question of inference or weight to be given evidence, and all the Commission does is apply the law to the undisputed facts, review is de novo Second, the issue in this case is whether the Commission held the claimant to a higher standard of proof than is required in a mental-mental claim. Whether a claimant must prove certain elements to establish a compensable claim is purely a question of law and it is therefore reviewed de novo. Commission did not find that the claimant failed to prove any of the Pathfinder requirements that he suffered a sudden, severe emotional shock that was traceable to a definite time and place and that caused his psychological injury. Instead, the Commission adopted "a more narrow construction of Pathfinder as expressed in the General Motors decision." The claimant asserts that the Commission misapplied General Motors' interpretation of Pathfinder.

Diaz v. IWCC 2013 IL App (2d) 120294 WC Read in context, General Motors uses the phrase "an uncommon event of significantly greater proportion or dimension than that to which the employee would otherwise be subjected in the normal course of employment" to distinguish compensable claims from a mental disability that arises from the ordinary job-related stress common to all lines of employment. Nothing in Pathfinder requires that the "sudden, severe emotional shock" which must be proved should be considered within the context of the claimant's occupation or training. The Commission applied an incorrect standard of proof and failed to provide compensation to an injured worker in a compensable mental-mental claim. The claimant suffered a sudden, severe emotional shock on May 29, 2007, that resulted in his developing posttraumatic stress disorder. The accident arose out of and in the course of the claimant's employment, and his condition of ill-being was causally related to the accident. The psychological harm the claimant suffered is compensable under the Act.

Diaz v. IWCC 2013 IL App (2d) 120294 WC Dissent I respectfully dissent In reversing the Commission in this case, the majority rejects General Motors' interpretation of Pathfinder to the extent it suggests the determination of whether a sudden, severe emotional shock occurred must be "considered within the context of the claimant's occupation or training I believe General Motors is a fair interpretation of our supreme court's decision in Pathfinder. The claimant's occupation and training are part of the circumstances that must be considered in determining whether an event causing a sudden, severe shock has occurred. Naturally, for an event to cause sudden, severe shock, it must be out of the normal work routine; otherwise it would not cause a shock Additionally, while I agree with the de novo standard of review used in this case, I note this court utilized the manifest-weight-of-the-evidence standard of review in a recent mental-mental case where the facts were undisputed. See Chicago Transit Authority 2013 IL App (1st) 120253WC I find the court's application of the different standards of review inconsistent and disagree with Chicago Transit Authority's reasoning for applying a manifest-weight-of-the-evidence standard.Chicago Transit Authority 2013 IL App (1st) 120253WC I find the court's application of the different standards of review inconsistent and disagree with Chicago Transit Authority's reasoning for applying a manifest-weight-of-the-evidence standard.

Interstate Scaffolding Facts Union carpenter suffers heat exhaustion and related head and neck injuries on 7-02-03 Treatment by Dr. James Young Released to and RTW light duty with Respondent in 2-05; Petitioner paid TPD Petitioner writes religious slogans on walls at work in 4-05 (Jesus is the way, the truth and the life John 14:6) Respondent terminates Petitioners employment on 5-25-05 for defacing company property

Interstate Scaffolding Arbitration Arbitrator Leo Hennessy, 03WC45987, 8-30-05 (tried 6-28-05) (R)estricitons were still in effect on trial date Parties stipulated to and Respondent given credit for payment of TTD or maintenance through 5-25-05 Notwithstanding the divisive, conflicting testimony regarding the arguments and confrontations of May 25, 2005 at the Respondents place of business and the unusual basis for the termination of the Petitioner, this Arbitrator finds the Petitioner is not entitled to temporary total disability benefits subsequent to his termination of May 25, 2005.

Interstate Scaffolding Commission Unanimous Commission modifies (Basurto, Rink & Gore), 06IWCC1010, 11-16-06 The Commission modifies the Decision of the Arbitrator and finds that Petitioner is entitled to additional TTD from May 25, 2005 through June 28, 2005, a period of 5 weeks, based on the fact that Petitioners condition had not stabilized as of the June 29, 2005 Arbitrators hearing.

Interstate Scaffolding Circuit Court Judge Bobbi Petrungaro, Will County, confirms, 07MR100, 10-2-07 The Commission determined that the Petitioner was not fired for cause and was on light duty when terminated by the Respondent employer. The determination of when recovery or stabilization of condition occurs is a question of fact to be determined by the Commission, and unless its findings are contrary to the manifest weight of the evidence, they will not be set aside on review.

Interstate Scaffolding Appellate Court 3-2 Decision (Grometer, McCullough, Hoffman) reverses & denies benefits, 385 Ill.App.3d 1040 (2008) Issue: At issue in this case is whether claimant is entitled to payment of TTD benefits following his termination Holding: We hold that an employee is not entitled to collect TTD benefits after he voluntarily removed himself from the work force for reasons unrelated to his injury. Standard of review: The period during which a claimant is temporarily totally disabled is a question of fact for the Commission; therefore, manifest weight

Interstate Scaffolding Appellate Court Law applied: The dispositive issue is whether the claimants condition has stabilized, i.e. whether the claimant has reached MMI. Medical supports no MMI: Thus, there was sufficient evidence to support the Commissions finding that claimants condition had not stabilized. End of story? No: Although we agree that claimant was still temporarily totally disabled at the time of his termination, the more interesting aspect of this appeal is whether claimant is entitled to TTD benefits following his discharge from respondents employ.

Interstate Scaffolding Appellate Court Summary of findings below: In confirming the decision of the Commission, the circuit court stated that the Commission determined that the claimant was not fired for cause. We find no language to this effect in the Commissions decision. To the contrary, as respondent conceded during oral arguments, the arbitrator relied on the claimants discharge in deciding that claimants discharge in deciding that claimant was not entitled to TTDThus, the Arbitrator tacitly concluded that claimants termination was for cause. The Commission affirmed that portion of the Arbitrators decision. WHAT?

Interstate Scaffolding Appellate Court Case of first impression?: Nevertheless, the parties have not provided us with any authority addressing the impact of an employees termination on his entitlement to TTD benefits subsequent to the date of dismissal. Appellate Court doesnt really like Respondents cited non- cooperation cases, including Gallentine: (T)hey are not directly on point. So what does majority rely on?

Interstate Scaffolding Appellate Court City of Granite City: Petitioner is not entitled Schmidgall: Petitioner is entitled Professor Larson summarizes other jurisdictions and finds 2 different approaches Approach 1(volitional act bar): Some jurisdictions deny compensation to employees who, after resuming employment following a work related injury, are terminated for misconduct where the disability played no part in the discharge(Citing cases from Feds, LA, MS, MI & VA)These courts reason that an employee should not be rewarded with disability benefits where the unemployment was not related to the disability but rather to a volitional act over which the employee exercised some control.

Interstate Scaffolding Appellate Court Approach 2 (proximate cause): Other jurisdictions hold that an employees discharge from light-duty work for misconduct unrelated to his disability does not automatically bar the employee from receiving disability benefits. These courts allow the employee to collect benefits if he can establish that the work-related disability hampers the employees ability to obtain or hold new employment(Citing cases from NJ, NC & MN)causal connection between the wages lost and the injury...loss in wages was proximately caused by the injury.

Interstate Scaffolding Appellate Court So, which Approach does Appellate Court favor? Approach 1 (volitional act bar): We find that allowing an employee to collect TTD from his employer after he was removed from the work force as a result of a volitional conduct unrelated to his injury would not advance the goal of compensating an employee for a work- related injury. Instead, it would provide a windfall Comports with Granite City & Schmidgall: in that it focuses on the reason the employee was removed from the work force

Interstate Scaffolding Appellate Court Applying Approach 1 (volitional act bar) to this case Claimant tacitly conceded that he was removed from the work force as a result of volitional acts unrelated to his employment Simply stated, but for his conduct in defacing respondents property, claimant would have continued receiving TTD benefits until his condition stabilized Oops! Petitioner was not receiving TTD benefits at the time of his termination! During oral arguments, we were advised that at the time that claimant was employed in the light-duty position, he was receiving a salary from respondent as well as a separate benefit from respondents insurance carrier.

Interstate Scaffolding Appellate Court (Dissent) Donovan & Holdridge The majority has announced a new principle which provides that temporary disability benefits may be discontinued where an employee upon returning to work light duty or to a rehabilitation assignment, is terminated from the work force as a result of his volitional acts of conduct (or misconduct) that are unrelated to his disabling condition. Though I accept the general principle, I cannot join in the remainder of the decision because the majority provides no standards for practical application of the newly announced principle. In addition, I disagree with the outright reversal of the Commissions decision.

Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010) In this appeal we are asked to consider whether an employers obligation to pay temporary total disability (TTD) workers compensation benefits to an employee who was injured in the course of his employment ceases when the employer terminates the employee for conduct unrelated to the injury. We permitted the Illinois Trial Lawyers Association and the Illinois AFL-CIO to file amicus curiae briefs in support of Urban. In addition, the Illinois Association of Defense Trial Counsel and the Illinois Self Insurers Association were permitted to file amicus curiae briefs on behalf of Interstate.

Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010) Thus, the issue before us is one of lawwhether an employers obligation to pay temporary total disability benefits to an employee who suffered a work-related injury ends if the employee returns to work for a light-duty assignment and, while working light duty, is terminated for conduct unrelated to his injury. Our review, therefore, is de novo. It is a well-settled principle that when a claimant seeks TTD benefits, the dispositive inquiry is whether the claimants condition has stabilized, i.e., whether the claimant has reached maximum medical improvement. We have reviewed the appellate court judgment and find that neither the majority nor the dissent has reached the correct conclusion on the issue before this court.

Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010) Looking to the Act, we find that no reasonable construction of its provisions supports a finding that TTD benefits may be denied an employee who remains injured, yet has been discharged by his employer for volitional conduct unrelated to his injury. A thorough examination of the Act reveals that it contains no provision for the denial, suspension, or termination of TTD benefits as a result of an employees discharge by his employer. Nor does the Act condition TTD benefits on whether there has been cause for the employees dismissal. Such an inquiry is foreign to the Illinois workers compensation system. The appellate court found that permitting the termination of benefits to an employee who is justifiably discharged comports with the [position] taken in Granite City and Schmidgall. We disagree.

Interstate Scaffolding (Supreme Court) 236 Ill.2d 132 (2010) For the reasons stated above, we hold that an employers obligation to pay TTD benefits to an injured employee does not cease because the employee had been dischargedwhether or not the discharge was for cause. When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimants condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits.

J.S. Masonry 369 Ill.App.3d 591, 861 N.E.2d 202 (2007) Petitioner bricklayer fell from scaffold and sustained multiple injuries Respondent alleged that Petitioner had violated safety rule by failing to pin gate Arbitrator Peiler denied benefits due to violation of safety rule (no arising out of) Unanimous Commission (Akemann, Pigott, Rink) reverses and awards medical and TTD Even if Petitioner violated a safety rule, he was still performing his work tasks at the time of the incident

J.S. Masonry (Appellate Court) 369 Ill.App. 3d 591 (2006) Circuit Court confirms Unanimous Appellate Court affirms Respondent argues that Commission erred as a matter of law that Petitioners injuries arose out of his employment because failure to fasten the safety gate was a violation of rules and took Petitioner out of the scope of his employment Respondent relies on Saunders: riding on forklift to get lunch Petitioner relies on Chadwick: failure to use safety belt

J.S. Masonry (Appellate Court) 369 Ill.App. 3d 591 (2006) The Petitioner was performing duties for which he was hired; although he may have been performing his duties in a negligent manner, he was doing exactly the thing he was employed to do; without regard to the factual dispute as to whether he violated a company rule 5 month delay in shoulder complaints not contrary to the manifest weight of the evidence, despite lack of explicit causation opinion TTD award not contrary to the manifest weight of the evidence despite lack of off-work slips

Clinton Dwyer v. Circuit City Stores 05WC012173 DA 3/6/2005 Petitioner 21 yo installation worker Co-worker asks for help to get stuck item from vending machine next to break room Petitioner body checked machine and fractured right hip requiring surgery Store director testified that she knew of problems with the machine, knew that employees used it and that Petitioner did not receive reprimand for violation of rule by shaking machine

Arbitration Decision 05WC012173 Arbitrator Andros in Woodstock Tried 6/8/06 and decision entered 9/22/06 Medical $60K; TTD 12 3/7 weeks (as stipulated); 35% loss right leg The true issue is whether the personal comfort doctrine applies Cites Eagle Discount and Ill. Cons. Tel. It is the finding of the Arbitrator that the action of the Petitioner was not so outrageous or unusual in that people, who encounter vending machines that hang up the desired product, jostle the machine to get the product.

Commission Decision 07IWCC1483 November 14, 2007 Commissioners DeMunno & Gore affirm and adopt Commissioner Basurto dissents: The personal comfort doctrine is intended for the petitioner's personal comfort. In this instance, the petitioner was not on break, nor was he purchasing an item from the vending machine. He was helping a coworker retrieve chips from the machine. It was not his personal comfort. Therefore, in order to find this compensable, the personal comfort doctrine must be extended to encompass the personal comfort of third parties. Assuming, that one makes that leap, his actions were unreasonable and unforeseeable.

Circuit Court Decision 07 MR 360 July 10, 2008 Circuit Court of McHenry County, Honorable Maureen P. McIntyre, presiding Commission decision set aside, reversed and dismissed In the course of contrary to the manifest weight: personal comfort does not apply to co-workers Arising out of contrary to manifest weight(?): no increased risk; chose to hit/check the machine

Appellate Court Decision Circuit City Stores v. IWCC 391 Ill.App.3d 913, 909 N.E.2d 983, 330 Ill.Dec. 961 July 14, 2009 (modified and rehearing denied) Justices Holdridge, McCullough, Hoffman, Hudson and Donovan Circuit Court reversed and Commission decision reinstated Personal comfort addresses only the in the course of element The Commission's finding that Dwyer's injury arose out of his employment is not contrary to law. Regarding the manifest weight of the evidence, there is no question that Circuit City provided the vending machine for use by its employees. Under these circumstances, a rational trier of fact could have found that the injury originated in a risk incidental to his employmentthus creating the requisite causal connection. Accordingly, the Commission's finding on this matter is not against the manifest weight of the evidence.

Appellate Court Decision Circuit City Stores v. IWCC 391 Ill.App.3d 913, 909 N.E.2d 983, 330 Ill.Dec. 961 As for the in the course of requirement, the Commission found that Dwyer's injury qualified under the personal comfort doctrine. That finding is contrary to law. By its own terms, the personal comfort doctrine applies to employees who sustain injuries while seeking their own personal comfort (Jessica Hubner in the instant case, not Dwyer). The doctrine has never been applied, and does not apply, to injuries sustained by an employee while assisting a coworker who is seeking personal comfort. We need not belabor this point because a separate doctrine, the so- called good Samaritan doctrine, is applicable instead. In light of this evidence, it was reasonably foreseeable that an employee might ask a coworker for assistance to dislodge a product from the machine. It was also reasonably foreseeable that the coworker would come to the aid of a fellow employee. The remaining question, then, is whether Dwyer's manner of rendering aid crossed the line of foreseeability and thus took him outside the scope of his employment.

Johnson v. IWCC 2011 Il App (2d) 100418WC Johnson v. IWCC, 8-15-2011: Appellate Court says Will County sheriff was back in the course of his employment when he was responding to dispatch in his patrol car, after leaving county to perform personal errand Commission had denied benefits 2-1 for personal deviation, reversing Arbitrator De Novo standard?

Peoria County Bellwood v. IIC 115 Ill.2d 524 (1987) The more narrow issue presented in this appeal is what is meant by the term "accidental injury" within the meaning of the Act. In the instant case, the claimant was found to have presented sufficient medical evidence to establish that her injury was work related. We do not believe that finding is against the manifest weight of the evidence. However, whether the claimant's injury is "accidental" is the crux of this case. We believe that the purpose behind the Workers' Compensation Act is best served by allowing compensation in a case like the instant one where an injury has been shown to be caused by the performance of the claimant's job and has developed gradually over a period of time, without requiring complete dysfunction. In order to achieve this result we believe the case of International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84, and that line of cases following International Harvester, should be interpreted so as to include a case like the instant one. We do not believe that in so doing we are partaking in judicial legislation; rather we are engaging in necessary and proper judicial statutory interpretation so as to implement the purpose of the Workers' Compensation Act.International Harvester Co. v. Industrial Com. (1973), 56 Ill. 2d 84 The Workers' Compensation Act was intended to provide financial protection for injured workers regardless of a showing of negligence or contributory negligence, while precluding the employee from common law tort remedies. To that end, it has been consistently held that the Act should be liberally construed to accomplish its purpose and objects. Requiring complete collapse in a case like the instant one would not be beneficial to the employee or the employer because it might force employees needing the protection of the Act to push their bodies to a precise moment of collapse. Simply because an employee's work-related injury is gradual, rather than sudden and completely disabling, should not preclude protection and benefits. The Act was intended to compensate workers who have been injured as a result of their employment. To deny an employee benefits for a work-related injury that is not the result of a sudden mishap or completely disabling penalizes an employee who faithfully performs job duties despite bodily discomfort and damage. As the appellate court correctly stated, an employee who alleges injury based on repetitive trauma must still meet the same standard of proof as other claimants alleging an accidental injury. There must be a showing that the injury is work related and not the result of a normal degenerative aging process.

Durand v. IIC 224 Ill.2d 53 (2006) Policy administrator at insurance company alleges carpal tunnel syndrome 01/29/98: problems September/October 97 No treatment, no lost time until 08/15/00: 1 st MD visit, 1.5 years of symptoms 09/08/00: positive EMG 11/06/00: IME Dr. Pomerance, no causation 11/29/00: Orthopedic consult 01/12/01: Application filed, DA 9/8/00 02/12/01 & 06/04/01: surgeries 05/09/02: Arbitration hearing

Durand Arbitration Petitioners case: her own testimony; treating records; expert testimony from examining doctor Dr. Robert Martin Respondents case: Petitioners supervisor; IME Dr. Pomerance testimony Arbitrator Neal awards benefits: $16,000 medical; 9 5/7 weeks TTD; 15% loss of use of each hand; total $33,257.16 Based on treating records, Dr. Martins testimony, unpersuasive testimony of supervisor and Dr. Pomerance SOL defense rejected: Although Petitioner had experienced CTS symptoms well before 09/08/00, that was the first time she was officially diagnosed

Durand Commission 2 (Akemann & Serkland) to 1(Sherman) decision reverses Arbitrator Petitioner failed to file her Application within the Statute of Limitations September/October 1997 is the date of accident/manifestation date (!!!) fact of the injury and its causal relationship to her employment was plainly apparent to the Petitioner and to a reasonable person alike Shermans dissent: this penalizes a diligent worker

Durand Appellate Court Circuit Court Peoria County (Judge Barra) confirms 3(Hoffman, McCullough, Callum) to 2(Holdridge, Donovan) affirms SOL bar Manifest weight of the evidence Petitioner was of the belief that she had CTS and that it was job- related in 1997 Dissent: belief is not the same thing as being plainly apparent

Durand v. IIC (Supreme Court) 224 Ill.2d 53 (2006) 4 (Fitzgerald et al.) to 2 (Garman, Karmeier) reverses Appellate Court and Commission An employee suffering from RSI must point to a date within the limitations period on which both (1) the injury and (2) its causal link to the employees work became plainly apparent to a reasonable person Review of previous case law: typically either the date on which the employee requires medical treatment or the date on which the employee can no longer perform work activities Was the date chosen by the Commission contrary to the manifest weight of the evidence? Yes.

Durand v. IIC (Supreme Court) 224 Ill.2d 53 (2006) Petitioner herself was not sure Dr. Pomerance noted gradual onset Dr. Martin did not use legal standard for manifestation date Petitioner would have had a hard time proving September/October 1997 Reasonable person would not have known of the injury or its putative relationship to the employment before receiving medical treatment Dissent: it was actually apparent to her, this is enough for manifest weight

Sisbro v. IIC 207 Ill. 2d 193 (2003) Reverses Appellate Court: We disagree. Aggravation of pre-existing condition To obtain compensation under the Act, a claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment It has long been recognized that, in preexisting condition cases, recovery will depend on the employee's ability to show that a work-related accidental injury aggravated or accelerated the preexisting disease such that the employee's current condition of ill-being can be said to have been causally-connected to the work-related injury and not simply the result of a normal degenerative process of the preexisting condition. need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor Normal daily activity exception: still a defense? IIC follows law: Denbow 03IIC440; Crader 03IIC599

Vogel v. IIC 354 Ill.App.3d 780 (2005) DA:7-10-98; Fusion 3-12-99; MVA 6-9-99; RTW 3-13-00; MVA 4-17-00 & 6-18-00 Treater Boury:MVA aggravated condition IME Skaletsky: biological reasons App. Ct.: When a claimants condition is weakened by a work-related accident, a subsequent accident that aggravates the condition does not break the causal chain

WCLA MCLE 11-6-2013 Judicial Activism: Nineteen Cases Wednesday November 6, 2013 12:00 pm to 1:00 pm...

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