WHAT NOW?: CASE LAW UPDATE

Transcription

1 WHAT NOW?: CASE LAW UPDATE Presented and Prepared by: Daniel R. Simmons Springfield, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2013 Heyl, Royster, Voelker & Allen J-1

2 WHAT NOW?: CASE LAW UPDATE I. PROCEDURAL LAW... J-4 A. Recouping Overpayment of Benefits An employer cannot enforce a credit for overpayment in a section 19(g) proceeding.... J-4 B. Combating Fraud The anti-fraud provisions of section 25.5 are constitutional; application of section J-4 C. Filing Judicial Reviews The mailbox rule does not apply to judicial review filings under section 19(f).... J-6 D. Penalties and Attorneys Fees Penalties and attorneys fees are not recoverable for a failure to authorize medical care.... J-7 E. Insurance Coverage Proceedings before the commission should be stayed pending resolution of insurance coverage issues in a civil case.... J-8 F. Final and Appealable Orders A decision by the circuit court to remand for entry of dismissal may be considered a final and appealable order, thereby conferring appellate jurisdiction on the appellate court.... J-10 G. Non-Final Language A remand by the commission for further determinations on vocational rehabilitation issues is non-final despite language in the commission s decision stating that the order is subject to remand only after the time for appeal has expired.... J-11 H. Collateral Estoppel A decision by the U.S. Department of Labor denying a petitioner benefits under the Black Lung Benefits Act for coal miner s pneumoconiosis does not bar the petitioner from relitigating in an occupational disease proceeding whether he had CWP and whether it was related to his employment.... J-12 I. Waiver of Compliance with Rules A party may stipulate to waive the timely filing of the transcript on review and if so stipulated, that party cannot rely on a later filing of the transcript to defeat jurisdiction on review... J-14 J. Section 19(g) Statute of Limitations... J-16 J-2

3 K. Treater v. IME... J-16 II. SUBSTANTIVE LAW... J-16 A. Medical Benefits A petitioner may recover medical benefits for prospective surgery to cure a disfigurement even where the alleged disfigurement may not be compensable as such under section 8(c)... J-16 B. Compelling FCE An employer nor the commission can compel a petitioner to undergo a Functional Capacity Evaluation (FCE) event where requested by or beneficial to a section 12 Independent Medical Examiner physician.... J-18 C. Permanency Permanency benefits for injuries to shoulders are governed not by a percentage of an arm but as a person as a whole.... J-19 D. PTD Benefits Properly Denied for Failure to Establish Job Search... J-19 E. Manifest Weight of the Evidence... J-20 F. Loaned/Borrowed Employees... J-22 G. Exclusive Remedy Provision... J-24 H. Statutory Interpretation of Section 5 (a) Regarding Immunity... J-25 I. Traveling Employees A temporary worker who is injured while traveling from his temporary employment to his hotel room is considered a traveling employee under the act and it s reasonable for the employer to assume that the employee will rent a hotel room rather than commute the 200 miles between the employee s residence and his temporary work assignment.... J-26 J. Independent Contractors... J-28 K. Accident... J-29 L. Causal Connection... J-31 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. J-3

4 WHAT NOW?: CASE LAW UPDATE The following summaries represent the published decisions of the appellate court, Workers Compensation Commission Division, over the course of The decisions this year focused heavily on the procedural points. I. PROCEDURAL LAW A. Recouping Overpayment of Benefits An employer cannot enforce a credit for overpayment in a section 19(g) proceeding. In Patel v. Home Depot USA, Inc., 2012 IL App (1st) , the Appellate Court, First District considered a case where a petitioner sought to enforce an arbitrator s award, but the respondent held a credit that was larger than the award. In this case, the respondent had a credit of $27, for overpayment of temporary total disability benefits. At arbitration, the petitioner was awarded a sum of $22, The petitioner sought to enforce that award by way of a 19(g) petition to the circuit court. The respondent refused to pay the award, noting that it held a credit in excess of the amount requested by the petitioner. The circuit court refused to allow the respondent to rely on the credit in place of the award, ordering the respondent to pay the full amount ordered by the commission. In addition, the circuit court awarded the petitioner attorneys fees of $47,000, costs of $5, and interest of $13, The respondent brought the case to the appellate court, again arguing that its credit should negate any duty to pay the petitioner. The appellate court affirmed the circuit court s decision, holding that section 19(g) applies only to compensation and does not recognize a credit as compensation. According to the court, a respondent must pay the full amount of the award, and then seek to recover the credit for overpayment in a separate civil action against the petitioner. In this case, the appellate court refused to honor the respondent s credit and awarded the petitioner attorneys fees, costs and interest. In doing so, the appellate court further complicated the procedure for the respondent to enforce its credit for overpayment of temporary total disability benefits. B. Combating Fraud The anti-fraud provisions of section 25.5 are constitutional; application of section People v. Oshana, 2012 IL App (2d) , is the first reported case construing the new fraud provision, section There, the petitioner alleged that he injured his right arm, shoulder, neck, and back in a work injury that occurred on October 12, He was provided with off-work slips from his treating physician. He advised his physician that he had severe disability. The J-4

5 petitioner told his physician that he was required to use crutches, a walker, and spent most of his time in bed. He also claimed he had to crawl to the bathroom. The insurance carrier performed surveillance on multiple occasions and caught the petitioner working at construction sites, using both arms to perform tasks. The insurance carrier then took a recorded statement from the petitioner after most of the surveillance had been performed. In the recorded statement, petitioner denied he was working. The insurance carrier submitted documentation to the Workers Compensation Fraud Unit who then submitted this documentation to the Kane County State s Attorney. The petitioner was indicted on two counts of worker s compensation fraud pursuant to sections 25.5(a)(1) and (a)(2). Those provisions read as follows: It is unlawful for any person, company, corporation, insurance carrier, health care provider, or other entity to: 1. Intentionally present or cause to be presented any false or fraudulent claim for the payment of any worker s compensation benefit. 2. Intentionally make or cause to be made any false or fraudulent material statement or material representation for the purpose of obtaining or denying any worker s compensation benefit. 820 ILCS 305/25.5(a)(1), (a)(2). The petitioner was found guilty on both counts and was sentenced to 24 months of probation and ordered to pay restitution to the insurance carrier of $22, in addition to fines and fees to the state. On appeal, the appellate court reversed the trial court regarding its finding that the petitioner presented a false or fraudulent workers compensation claim under section 25.5(a)(1). As it noted, the petitioner s original accident was an accepted injury that did take place. The appellate court also found that the petitioner was not required to report that he was working light duty. The act makes criminal only affirmative fraud a false or fraudulent claim or statement not mere silence. However, the appellate court affirmed the conviction with respect to count II under section 25.5(a)(2). They noted the petitioner made several false or fraudulent statements for the purpose of obtaining workers compensation benefits. The recorded statement to the insurance carrier was not the basis of their decision because it was ambiguous; when the petitioner said he was not working, he could have been referring to the fact that he was not working for any other employer at the time of the accident. However, the court based its decision on the fact that the petitioner fraudulently misrepresented to his doctor and the IME doctor the extent of his disability and level of pain. The appellate court held the petitioner s statements that he was limited to crutches, the use of a walker and was in bed most of the time were intentionally made for the purpose of obtaining workers compensation benefits. J-5

6 In addition, the appellate court found that the Workers Compensation Fraud Act was not unconstitutional but rather clear and unambiguous. The court also rejected the petitioner s contention that section 25.5 could not be constitutional where there was no harm caused by the infraction. According to the court, The conduct of making fraudulent claims or statements in order to obtain workers compensation benefits poses a similarly broad risk to the public by undermining the fairness and integrity of the workers compensations system, which was designed to provide prompt and equitable compensation for employment-related injuries. Oshana, 2012 IL App (2d) , at 39. With respect to the restitution order, the court found that the term complete restitution to the victims of the fraud means just that full payment for all of the victim s expenses that are reasonable. But restitution may not be ordered for costs that were not related to the acts for which the petitioner was convicted. The appellate court ordered the petitioner to pay the costs of the respondent s IME and the insurance carrier s attorney s fees for the criminal trial, but it vacated the award of restitution for the respondent s surveillance costs because there was no proof the surveillance was performed as a result of the petitioner s fraudulent statements. They reduced the restitution order to $12, and affirmed the trial court s order of 24 months of probation as well as fines and fees to the State. The Oshana case demonstrates the importance of obtaining clear and specific recorded statements as well as the importance of the use of video surveillance in claims where fraud is suspected. If the recorded statement had been clear and if the questions to the petitioner were specifically referring to whether he had worked for any employer after the accident, the petitioner s conviction under section 25.5(a)(1) likely would have been affirmed by the appellate court. C. Filing Judicial Reviews The mailbox rule does not apply to judicial review filings under section 19(f). In Gruszeczka v. Illinois Workers Compensation Comm n, 2012 IL App (2d) WC, the Appellate Court, Second District, Workers Compensation Commission Division considered a case where the petitioner failed to comply with the time limits for filing a petition for judicial review. In that case, the arbitrator denied the petitioner s claim for benefits, and the commission upheld the arbitrator s decision. The record reveals that the commission s decision was issued on April 20, On May 4, 2009, the petitioner mailed his petition for judicial review to the circuit court in DeKalb County. On May 14, 2009, the petition for judicial review was filed-stamped by the circuit clerk, more than 20 days after the commission s decision was issued. Based on those dates, the respondent filed a motion to dismiss the petition for judicial review arguing that the petition was not timely filed. The motion to dismiss was based on section 19(f)(1) of the act, which states that judicial review of a commission decision shall be commenced within 20 days of receipt of the notice of decision. The motion to dismiss was ultimately denied by the circuit court, but the court also affirmed the commission s denial of benefits. Both the petitioner and respondent appealed that decision to the Second District J-6

7 Appellate Court. The petitioner argued that the denial of benefits was improper, and the respondent argued that the motion to dismiss was improperly denied. The appellate court reversed the circuit court, and found that the circuit court lacked subjectmatter jurisdiction to hear the judicial review. The appellate court relied on a strict statutory interpretation of section 19(f)(1), and found that the petitioner failed to comply with the 20-day window to file the petition for judicial review. The appellate court specifically noted that the act does not include a mailbox rule and explained that the act required the petition to be filestamped within 20 days, not just mailed. In this case, the appellate court seems to have reached its limit with regard to flexibility in the act s appellate procedures. Where typographical errors and substantial compliance were allowed, the failure to comply within the time period to file an appeal was strictly construed. In United States Cold Storage, Inc. v. Illinois Workers Compensation Comm n, 2013 IL App (3d) WC, the court held that the employer failed to satisfy the Workers Compensation Act s bond requirements. The employer neglected to identify a surety for the bond that could be accepted by the circuit court clerk and, as a result, the circuit court lacked jurisdiction over the employers appeal. The court noted that the records showed that the initial bond document was not file-stamped by the clerk. Neither the initial bond and document nor a later, untimely bond document identified as a surety for the bond. The clerk could not have accepted a surety when one was provided. As a result, the employer failed to satisfy the bond requirements set forth in section 19(f)(2) of the act and the circuit court lacked jurisdiction over the employer s appeal. D. Penalties and Attorneys Fees Penalties and attorneys fees are not recoverable for a failure to authorize medical care. In Hollywood Casino-Aurora, Inc. v. Illinois Workers Compensation Comm n, 2012 IL App (2d) WC, the Appellate Court, Second District, Workers Compensation Commission Division considered whether a petitioner can be awarded 19(k) penalties for the respondent s refusal to authorize medical treatment that has not yet taken place. In that case, the petitioner needed a battery replacement for her spinal cord stimulator. The treating physician sent correspondence to the claims adjuster seeking authorization for the battery replacement procedure, but did not receive a final response for a number of months. Approximately eight months after the initial request, the petitioner filed a petition for penalties and fees for failure to authorize the battery replacement procedure. The battery replacement procedure was authorized shortly after the petition for penalties and fees was filed, but the petitioner continued to seek penalties and fees. The commission awarded the petitioner $40,750 in penalties under section 19(k) of the act, but denied attorneys fees under section 16. The respondent sought judicial review of the commission s decision, and the circuit court reversed the commission s decision. J-7

8 The circuit court concluded there was no legal basis for awarding penalties and fees where there was a delay in authorizing treatment. The petitioner appealed the circuit court s decision to the appellate court. The appellate court affirmed the ruling of the circuit court, relying on the statutory language of section 19(k) of the act. Specifically, the appellate court explained that 19(k) dealt with delay of payment or underpayment of benefits. Because the medical treatment requested was never actually completed, payment was never due. The appellate court held there was no provision in the act authorizing the commission to assess penalties against an employer for a delay in authorizing reasonable and necessary medical treatment. Justices Stewart and Holdridge each dissented, arguing that majority had read section 19(k) too narrowly. Justice Stewart noted, [d]elaying authorization for medical services is simply one means of delaying payment. Hollywood Casino-Aurora, Inc., 2012 IL App (2d) WC, at 27. He added, The majority s narrow interpretation allows an employer to completely refuse to provide medical services required by an injured worker and suffer no penalty. Id. at 26. Justice Holdridge, while agreeing with Justice Stewart s dissent, further added the record established a refusal to pay even under the majority s analysis because the adjuster had possession of all information necessary to determine if the surgery was needed for almost six months before asking for further information, and then only authorized the surgery once a petition for penalties had been filed. In this case, the appellate court held that the act did not allow for penalties to be assessed against a respondent for failure to authorize reasonable and necessary medical treatment. In Morton s Steakhouse v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC U, the appellate court affirmed the commission s finding that the petitioner sustained an accidental injury arising out of and in the course of his employment with the respondent. The court also affirmed an award of penalties and attorneys fees. Penalties and attorneys fees were awarded because of the respondent s failure to pay TTD benefits. The court noted that the employer s examining physician had issued four reports before the period of disputed TTD in which he offered an opinion that a causal connection existed between the petitioner s condition of ill-being and his employment. The petitioner s treating physician had also found a causal connection and had also recommended surgery. The employer offered the petitioner full duty employment and terminated TTD benefits. The respondent offered light duty work and reinstated TTD just before arbitration on a petition for immediate hearing, however, it never paid what it promised. The respondent also did not pay TTD benefits after the petitioner s surgery. The respondent offered no opinion testimony establishing that the petitioner could return to work during the post operative period. E. Insurance Coverage Proceedings before the commission should be stayed pending resolution of insurance coverage issues in a civil case. In Travelers Insurance v. Precision Cabinets, Inc., 2012 IL App (2d) WC, the petitioner sought benefits from Precision Cabinets for injuries he suffered in the course of his employment. Precision Cabinets entered into an agreement with Employers Consortium, Inc. (ECI) to provide J-8

9 outsourced employee-related services, and the petitioner was deemed a borrowed employee by the arbitrator. Pursuant to its contract with Precision Cabinets, ECI secured a workers compensation policy from Travelers Insurance. This policy included four endorsements providing workers compensation coverage to leased workers provided by ECI to the endorsed ECI clients, but the endorsements did not include Precision Cabinets at the time of the petitioner s accident. The arbitrator determined that Precision Cabinets had workers compensation coverage and ECI had no workers compensation coverage based on the lack of endorsement. The commission, however, found that ECI did have workers compensation coverage, and found ECI and Precision Cabinets jointly and severally liable for the petitioner s work related injuries. The commission stated that all ECI employees were covered by the Travelers policy, regardless of any provisions or endorsements attempting to limit Travelers liability. The circuit court reversed the commission, finding that Precision Cabinets was not endorsed until after the petitioner s accident and, therefore, Travelers owed no coverage. The second district looked to section 4(a)(3) of the act and determined that this section required that the policy cover all the employees and the entire compensation liability of ECI. The court also relied on the language section 4(a)(3) that stated that any provisions in a policy attempting to limit the liability of the insurance carriers shall be wholly void. In sum, the court reversed the circuit court s holding and affirmed the commission s decision, finding that by choosing to purchase workers compensation coverage, ECI purchased it for all of its employees, including the petitioner. Further, ECI s failure to secure an endorsement adding Precision Cabinets to the Travelers policy until after the petitioner s accident was ineffective to withdraw the petitioner from the operation of the act. In Hastings Mutual Ins. Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) , the appellate court considered a complex case involving an attempt to cancel a workers compensation insurance policy and parallel proceedings before the commission and in the circuit court. In that case, the petitioner filed a claim against Ultimate Back Yard and its insurer, Hastings Mutual. For approximately five months, the insurer was providing temporary total disability and medical benefits to the petitioner. At that point, Hastings withdrew its acceptance of the petitioner s claim and pursued a declaratory judgment action based on its cancellation of the workers compensation insurance for Ultimate Back Yard. Before the circuit court, Hastings Mutual argued that it sent a notice of cancellation to Ultimate Back Yard on January 14, 2008, prior to the injured worker s accident. In addition, Hastings Mutual filed a motion to stay the proceedings with the commission. Both the petitioner and Ultimate Back Yard filed motions to dismiss the declaratory judgment action, as well as responses to the motion to stay the commission s proceedings. The next month, the petitioner proceeded with the workers compensation claim, and an arbitrator ruled against Hastings Mutual on the issue of insurance coverage. Shortly thereafter, the trial court ruled against Hastings Mutual on the declaratory judgment, and declared the motion to stay moot, in light of the arbitrator s similar decision. The circuit court also granted the motion to J-9

10 dismiss filed by the petitioner and Ultimate Back Yard, finding that the commission had authority to decide the coverage issue. Rather than consenting to proceeding at the commission, Hastings Mutual filed another motion to stay or sever the commission proceedings on the insurance coverage issue. The circuit court denied Hastings Mutual s motion to stay, and Hastings took the case to the appellate court. On appeal, the petitioner argued that the insurance coverage issue required the specialized expertise of the commission. In response, Hastings Mutual argued that its appeal presented an issue of law with regard to its compliance with section 4(b) of the act. Ultimately, the appellate court held that Hastings appeal presented an issue of law, which would best be handled by the circuit court. The appellate court noted that the central issue was whether Hastings complied with the statutory requirements of section 4(b) in cancelling the workers compensation policy. The appellate court reversed the circuit court, and directed the circuit court to stay the proceedings before the commission until the coverage issue was resolved. In this case, the appellate court decided that the circuit court was better equipped to resolve a dispute about the interpretation of the Workers Compensation Act. In doing so, it took the coverage dispute out of the hands of the commission. F. Final and Appealable Orders A decision by the circuit court to remand for entry of dismissal may be considered a final and appealable order, thereby conferring appellate jurisdiction on the appellate court. In Edmonds v. Illinois Workers Compensation Comm n, 2012 IL App (5th) WC, the appellate court considered the preliminary question of whether it had jurisdiction over a case where the circuit court reversed a commission decision awarding benefits, and remanded the case for proceedings consistent with the court s ruling. The circuit court had reversed the commission, finding that the petitioner s occupational disease claim was barred by the doctrine of collateral estoppel due to a federal proceeding on the same issues, which had determined the petitioner did not have coal workers pneumoconiosis (CWP). In its reasoning, the appellate court noted when the circuit court reverses the decision of an administrative agency and remands the matter to the agency for further proceedings, the circuit court s order is not final for purposes of appeal. However, if, on remand, the agency has only to act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters or merely make a mathematical calculation, then the order is final for purposes of appeal. Edmonds, 2012 IL App (5th) WC, 19. In this case, the circuit court vacated the decision of the commission and remanded the matter to the commission to enter a decision consistent with [the circuit court s] findings. Id. Under these circumstances, we find that the trial court s order was final for purposes of appeal as the commission has only to act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters. Id. J-10

11 G. Non-Final Language A remand by the commission for further determinations on vocational rehabilitation issues is non-final despite language in the commission s decision stating that the order is subject to remand only after the time for appeal has expired. In Supreme Catering v. Illinois Workers Compensation Comm n, 2012 IL App (1st) WC, the appellate court held that a decision of Workers Compensation Commission remanding to arbitrator for further proceedings on issue of vocational rehabilitation was interlocutory and thus not final and appealable. The commission had reversed the arbitrator s award, made an award of TTD benefits and medical expenses, and remanded to the arbitrator for a determination of the petitioner s need for vocational rehabilitation, his need for maintenance, and his need for further treatment, as well as the nature and extent of his permanent disability, purportedly pursuant to Thomas v. Industrial Comm n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980). The commission decision also provided that the remand would take place only after the latter of expiration of the time for filing a written request for summons to the circuit court has expired without the filing of such a written request, or after the time of completion of any judicial proceedings, if such a written request has been filed. Supreme Catering, 2012 IL App (1st) WC at 9. According to the appellate court, a decision of the commission which remands the case to the arbitrator for further proceedings on the issue of vocational rehabilitation is not a final order. In such cases, it does not matter whether the remand is for the purpose of providing the specifics of a generalized plan ordered by the commission or for a determination of whether vocational rehabilitation should be ordered. In either case, further proceedings are required before an administrative decision is final. Likewise, the court said, it does not matter whether the remand arises in an expedited hearing where the nature and extent of permanent disability is not an issue, or in a proceeding where the commission determines that the claimant s condition has not yet reached permanency and vacates an arbitrator s permanency award. Id. at 18. In either type of proceeding, a remand for further hearing on the issue of vocational rehabilitation requires further administrative involvement, and the decision of the commission is not final. The court found, it is apparent in this case that the commission s decision, remanding for a determination of the need for vocational rehabilitation, requires further administrative proceedings. Id. at 19. Thus, the commission s decision was not a final, appealable order, and the circuit court lacked jurisdiction on review. A finding of permanency on two different grounds, with no majority concurrence on the precise nature of the permanency benefits, is a non-final order and must be remanded. The appellate court held that a commission decision which awarded benefits, but in which the two majority commissions disagreed as to which type of permanency benefit, was not a final decision and must be remanded. In University of Illinois Hosp. v Illinois Workers Compensation Comm n, 2012 IL App (1st) WC, both the petitioner and the employer appealed from a circuit court order which confirmed a Workers Compensation Commission decision awarding J-11

12 the petitioner benefits pursuant to the act for injuries she allegedly received while in the employ of University Hospital. The two appeals were consolidated for review. The appellate court vacated the judgment of the circuit court and remanded the cause to the commission for entry of a final decision with regard to the petitioner s request for permanent disability benefits. At issue in the appeal was an interpretation of section 19(e) of the Workers Compensation Act, which provides, in relevant part, that a decision of the Commission shall be approved by a majority of a panel of 3 members of the Commission. 820 ILCS 305/19(e). In this case, the record affirmatively demonstrated there was no approval by a majority of the 3 member panel of commissioners regarding the petitioner s entitlement to a permanent disability award. In a rather interesting and unusual ruling, just one commissioner, Commissioner Dauphin, found the petitioner was entitled to PPD benefits and was not entitled to PTD benefits under the oddlot theory. A second commissioner, Commissioner Mason, dissented in part and concluded the petitioner had proved that she was permanently and totally disabled under the odd-lot category and was entitled to PTD benefits. The third commissioner, Commissioner Lindsay, dissented from the entire decision and found the petitioner was not entitled to benefits because she had failed to prove that her injury and current condition of ill-being were causally related to her employment. Therefore, although the two commissioners found that the petitioner was entitled to receive benefits, they did not agree with regard to a permanency award. Because a majority of the commissioners did not approve the PPD award, the decision issued by the commission is not final because it does not dispose of the petitioner s request for permanent disability benefits in accordance with the unambiguous language of section 19(e). In Dial Corp. v. Illinois Workers Compensation Comm n, 2013 IL App (2d) WC, the appellate court held that it did not have jurisdiction to consider the petitioner s appeal. The trial court vacated the commission s award of medical expenses and remanded the case to the commission to determine whether the petitioner paid any out of pocket medical expenses for which she was not reimbursed. The court noted that the trial court s order required the commission to resolve a disputed issue of fact concerning whether the petitioner paid any out of pocket medical bills for which he was not reimbursed. Accordingly, the petitioner s appeal was deemed to be premature. The court noted that its decision to not deprive the parties to the right to judicial review because once the commission resolved the out-of-pocket medical expenses question, its decision would be reviewable by both the trial and appellate courts. H. Collateral Estoppel A decision by the U.S. Department of Labor denying a petitioner benefits under the Black Lung Benefits Act for coal miner s pneumoconiosis does not bar the petitioner from relitigating in an occupational disease proceeding whether he had CWP and whether it was related to his employment. In Edmonds v. Illinois Workers Compensation Comm n, 2012 IL App (5th) WC, the appellate court held that the petitioner s occupational disease claim was not barred under the doctrine of collateral estoppel by a United States Department of Labor determination that he J-12

13 did not suffer from coal workers pneumoconiosis (CWP). The arbitrator had found the CWP compensable and found that the claim had been timely filed within two years of the date of last exposure. The commission affirmed. On judicial review, the circuit court reversed, finding that the doctrine of collateral estoppel precluded any finding that petitioner had CWP within two years after his last date of exposure because the United States Department of Labor had found to the contrary in a proceeding for benefits under the Black Lung Benefits Act (30 U.S.C. 901 et seq. (2000)). According to the appellate court, at issue was whether the department s November 25, 2002, decision denying petitioner benefits under the federal Black Lung Benefits Act precluded the petitioner from establishing timely disablement under section 1(f) of the act (820 ILCS 310/1(f)). The court reviewed the question de novo, noting that the applicability of collateral estoppel is a question of law. Collateral estoppel applies when a party participates in two separate and consecutive cases arising out of different causes of action and some controlling factor or question material to both cases has been fully and completely resolved by a court of competent jurisdiction against a party in the former suit. Edmonds, 2012 IL App (5th) WC, 20. The doctrine prohibits relitigation in the later proceeding of an issue actually decided in the earlier proceeding. For collateral estoppel to apply, three threshold requirements must be established: (1) the issue decided in the prior adjudication must be identical to the issue in the current action; (2) the party against whom estoppel is asserted must have been a party or in privity with a party in the prior action; and (3) the prior adjudication must have resulted in a final judgment on the merits. Id. at 21. In this case, the appellate court found identity issues, because whether petitioner had CWP was at issue in both the proceeding before the department and this proceeding. It further held that the party against whom estoppel is asserted, in this case petitioner, was a party to the claim before the department. The court also said it had no doubt that the district director s decision was final. Regulations pertaining to the procedure for pursuing a claim under the Black Lung Benefits Act expressly provide that the failure to request a hearing before the Office of Administrative Law Judges within 30 days after the issuance of a proposed decision and order (or a revised proposed decision and order) renders the proposed decision and order final. 20 C.F.R (2002). The petitioner conceded that he did not appeal the revised proposed decision and order issued on November 25, 2002; thus, the district director s decision was final. The court then said, [a] more difficult question is whether the district director s determination constituted an adjudication for purposes of collateral estoppel. Edmonds, 2012 IL App (5th) WC, 22. After reviewing the various aspects of the federal proceeding and concluding that the hearing before the department director was more limited, the appellate court concluded that the federal proceeding was not an adjudication and that the circuit court s conclusions were wrong. The court observed: J-13

14 In the federal proceeding, the amount of medical evidence claimant could submit was restricted. Further, there was no formal hearing and the powers of the district director are clearly limited. For instance, the district director is authorized to make determinations with respect to claims under the Black Lung Benefits Act, conduct conferences and informal discovery proceedings, compel the production of documents by the issuance of subpoena, prepare documents for the signature of the parties, and issue appropriate orders. 20 C.F.R (a) (2002). However, unlike an administrative law judge, a district director is not expressly authorized to conduct formal hearings, administer oaths and examine witnesses, compel the appearance of witnesses by the issue of subpoenas, or issue decisions and orders with respect to claims under the Black Lung Benefits Act. Edmonds, 2012 IL App (5th) WC, 27. As a result, the appellate court reversed the circuit court and remanded for reinstatement of the commission s decision. I. Waiver of Compliance with Rules A party may stipulate to waive the timely filing of the transcript on review and if so stipulated, that party cannot rely on a later filing of the transcript to defeat jurisdiction on review. A rather interesting procedural question was addressed in Ingrassia Interior Elements v. Illinois Workers Compensation Comm n, 2012 IL App (2d) WC, concerning the timely filing of the transcript of arbitration on review. During a hearing before the arbitrator, the petitioner and the respondent both signed a request for hearing form, which contained the following stipulation: Both parties agree that if either party files a Petition for Review of Arbitration Decision and orders a transcript of the hearings, and if the Commission's court reporter does not furnish the transcript within the time limit set by law, the other party will not claim the Commission lacks jurisdiction to review the arbitration decision because the transcript was not filed timely. Ingrassia Interior Elements, 2012 IL App (2d) WC, 4. An evidentiary hearing commenced a few months later and at the beginning of this hearing, respondent informed the arbitrator that it would like to put a line through [the standard stenographic stipulation] and *** ask[ed that] the Commission follow the mandates under section 19(b) of the Act. Id. at 4. ( Unless a petition for review is filed by either party within 30 days after the receipt by such party of the copy of the decision and notification of time when filed, and unless such party petitioning for a review shall within 35 days after the receipt by him of the copy of the decision, file with the Commission either an agreed statement of the facts appearing upon the hearing before the Arbitrator, or if such party shall so elect a correct transcript of evidence of the proceedings at such hearings, then the decision shall become the decision of the Commission and in the absence of fraud shall be conclusive. ). The form was filed only thereafter. J-14

15 After losing before the arbitrator, the petitioner filed a petition for review with the commission, and ordered the transcript. In short, the transcript was not filed within the time set by section 19(b). Before the commission, the employer moved to dismiss the review for failure to file a timely transcript. The employer s motion was denied and the issue raised by the employer on judicial review. The circuit court reversed the commission, dismissing the appeal. The appellate court reversed, and reinstated the commission s decision. While initially framing the issue as whether the fact that a transcript was not filed within the time period specified in section 19(b) of the act deprived the commission of jurisdiction to review the decision of the arbitrator. The appellate court narrowed the question to whether respondent waived its ability to object to the fact that neither a transcript nor an agreed statement of facts was filed within the statutory time period. In response, the appellate court stated that the answer turns on whether the stipulation became binding at the time the parties, by signing the request for hearing form, exchanged their promises not to object to jurisdiction in the event the transcript was not timely filed or whether it was ineffective until the request for hearing form was filed with the arbitrator, which was after respondent's purported repudiation of the agreement. Id. at 12. Relevant to this question is section of title 50 of the Code (50 Ill. Adm. Code , which provides as follows: Id. at 13. Before a case proceeds to trial on arbitration, the parties (or their counsel) shall complete and sign a form provided by the Industrial Commission called Request for Hearing. However, in the event a party (or his counsel) shall fail or refuse to complete and sign the document, the Arbitrator, in his discretion, may allow the case to be heard and may impose upon such party whatever sanctions permitted by law the circumstances may warrant. The completed Request for Hearing form, signed by the parties (or their counsel), shall be filed with the Arbitrator as the stipulation of the parties and a settlement of the questions in dispute in the case. Both respondent and the trial court read this regulation as clearly stating that a request for hearing form does not become binding until it is filed with the arbitrator. The appellate court responded, [w]e see nothing in this provision that speaks to when a request for hearing form and the stenographic stipulation contained therein becomes binding. Moreover, we note that much of a request for hearing form consists of what are essentially requests for evidentiary admissions intended to limit the issues that are in dispute. Id. Moreover, it said, [i]t would be an odd rule indeed that would allow a party to recant such an admission on the eve of a hearing, thereby depriving an opponent of the opportunity to conduct discovery on an issue. Id. J-15

16 J. Section 19(g) Statute of Limitations In Curtis v. Illinois Workers Compensation Comm n, 2012 IL App (1st) WC, the court held that the petitioner s section 19(h) petition was untimely. Section 19(h) clearly provides that either party may petition the Workers Compensation Commission to reopen an award for a period of only 30 months after the date of the commission s decision. In this case, the 30 months began to run on January 25, 2005 and the petitioner did not file his section 19(h) petition until January 21, 2010, almost 60 months after the final decision was issued. The petitioner argued that section 19(h) only covered permanency and did not cover temporary total disability. Accordingly, the 30 month rule should not apply because the petitioner s condition had destabilized and he was therefore entitled to TTD benefits once more. The court rejected that argument, stating that TTD benefits were included in the 30 month rule and that to hold otherwise would read the 30 month rule out of the act. K. Treater v. IME In Verela v. Illinois Workers Compensation Comm n, 2013 IL App (2d) WC, the court upheld the commission s finding that the petitioner failed to prove that her condition of illbeing was causally related to her work place accident. There were a number of medical opinions in the case. The commission relied on the opinions of several treaters and an IME physician who concluded that the petitioner s injury had resolved despite the fact that other treaters indicated that the petitioner still needed medical treatment. The court noted that the commission was not required to accept the opinions of treating physicians over those of an IME physician. The commission was at liberty to place appropriate weight on medical opinions as it saw necessary provided that the medical opinions were reasonable. The court found that the commission s decision to give more weight to the opinions of physicians who supported the respondent s position was not against the manifest weight of the evidence. II. SUBSTANTIVE LAW A. Medical Benefits A petitioner may recover medical benefits for prospective surgery to cure a disfigurement even where the alleged disfigurement may not be compensable as such under section 8(c). In Dye v. Illinois Workers Compensation Comm n, 2012 IL App (3d) WC, a four justice majority of the appellate court reversed a unanimous commission decision to deny medical benefits associated with a prospective cosmetic surgery intended to relieve a small indentation in the petitioner s forehead. The petitioner had suffered an injury at work when a hose she was using snapped loose and the nozzle struck her in the forehead. She was diagnosed with a concussion and eventually returned to work without restrictions. Two years later, she was examined by a neurologist, who said that no further treatment was necessary and that the dent would not cause her any trouble in the future. The petitioner was then seen by a dermatologist, who recommended an injection procedure to cure the indent. J-16

17 The arbitrator and commission denied the prospective cosmetic surgery, finding that at best the evidence was unclear as to whether the petitioner had an observable disfigurement. The appellate court, in a 4-1 decision, reversed the commission, remanding the case and ordering that the employer pay for the prospective cosmetic surgery. In so doing, the appellate court relied on section 8(a), which states in relevant part: The employer shall provide and pay * * * all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury. 820 ILCS 305/8(a). Dye, 2012 IL App (3d) WC at 10. According to the court, the dent constituted a disfigurement and the prospective surgery alleviated that disfigurement. Moreover, the court reached this conclusion even though the indentation may not rise to the level of disfigurement for the purposes of permanency under section 8(c). The court also rejected the commission s reliance on the neurologist s opinion that the indent would not cause any further problems and needed no additional care. According to the court, the evidence clearly shows that, as a result of the January 27, 2007, industrial accident, petitioner suffered a disfigurement and clearly demonstrates that the disfigurement is observable to the naked eye. Id. at 12. Given these facts, the court said, we conclude that the Commission s denial of prospective cosmetic medical care on the basis that it was unclear whether petitioner had an observable disfigurement is against the manifest weight of the evidence. Id. Justice Turner dissented on the prospective medical ruling, arguing that the majority had interjected its own observations and inferences into the analysis and reweighed the evidence, thereby, failing to defer to the commission concerning a fact issue. Justice Turner noted the petitioner provided little evidence as to the appearance of the indentation, which under both descriptions is small. Instead of providing photographs of the indentation, she simply showed it to the arbitrator, who did not describe the indentation for the record. Id. at 22. He added, The lack of photographs raises a red flag as to how observable the indentation is. The arbitrator s statement after seeing the indentation provides no information as it is vague and subject to different interpretations. While the majority concludes the arbitrator s statement clearly indicates petitioner had a disfigurement observable to the naked eye (supra at 18), one can just as reasonably infer the arbitrator was questioning the need to fix something so trifling, i.e., you have got to be kidding. In fact, the record does not disclose how close the arbitrator was to the claimant when the arbitrator made the statement. Id. In American Airlines, Inc. v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC, a number of issues were before the appellate court. The court affirmed the commission s J-17

18 determination that the petitioner s injuries were causally related to her employment, that the petitioner was entitled to TTD benefits and that awarded medical bills were consistent with the manifest weight of the evidence. With regard to medical bills, however, the appellate court remanded the case back to the commission for the limited purpose of specifying what medical bills the commission awarded the petitioner and what credits the respondent was entitled to receive. The parties stipulated at arbitration that the respondent had already paid certain medical bills and that the respondent was entitled to a credit for the bills paid. The respondent argued on appeal that the arbitration award simply had an amount awarded for medical bills and did not clearly delineate what medical bills were awarded and what credits the respondent was entitled to receive. In light of the stipulation, the court agreed with the respondent that the matter had to be remanded to the commission for the purpose of having the commission clarify what medical bills were awarded and what credits the respondent was entitled to receive. The record simply was not clear about bills and credits and the commission, as the finder of fact, had to clarify its award in that regard. B. Compelling FCE An employer nor the commission can compel a petitioner to undergo a Functional Capacity Evaluation (FCE) event where requested by or beneficial to a section 12 Independent Medical Examiner physician. In W.B. Olson, Inc. v. Illinois Workers Compensation Comm n, 2012 IL App (1st) WC, the employer Olson challenged the commission's refusal to order the petitioner submit to an FCE, as recommended by Dr. Tonino, the petitioner s physician. In response, the petitioner argued that the issue presented a question of statutory construction and that the act did not provide any authority enabling the commission to require the petitioner to submit to an FCE. The appellate court agreed with the petitioner and found that nothing in the act compelled the petitioner to undergo an FCE. According to the court, section 12 of the Act is the only statutory provision permitting an employer to require a claimant to submit to any type of medical evaluation. See 820 ILCS 305/12 (West 2010); W.B. Olson, Inc., 2012 IL App (1st) WC, 45. That section provides, in relevant part, that [a]n employee * * * shall be required, if requested by the employer, to submit himself * * * for examination to a duly qualified medical practitioner or surgeon selected by the employer. 820 ILCS 305/12 (West 2010); W.B. Olson, Inc., at 45. Thus, the language of section 12 expressly limits the right of an employer to demand an examination by a medical practitioner or surgeon. Referencing Dorland s Illustrated Medical Dictionary, the appellate court concluded that, [a] medical practitioner is one who has complied with the requirements and who is engaged in the practice of medicine. Dorland s Illustrated Medical Dictionary 1248 (25th ed. 1974); Id. The court continued, [a] physical therapist is person skilled in the techniques of physical therapy and qualified to administer treatments prescribed by a physician and under his supervision. (citing Dorland's Illustrated Medical Dictionary 1597 (25th ed. 1974)). In the court s mind, [c]learly, a physical therapist does not fall within the meaning of a medical practitioner as specified in section 12. Id. J-18

19 The appellate court used the same analysis in its assessment of section 19(c) of the act, which grants the commission the authority to order an impartial physical or mental examination of a petitioner whose mental or physical condition is in issue. See 820 ILCS 305/19(c) (West 2010). The court observed, Yet, that authority is similarly limited to examinations by a member or members of a panel of physicians. See 820 ILCS 305/19(c); W.B. Olson, Inc., 2012 IL App (1st) WC, 46. C. Permanency Permanency benefits for injuries to shoulders are governed not by a percentage of an arm but as a person as a whole. In Will County Forest Preserve District v. Illinois Workers Compensation Comm n, 2012 IL App (3d) WC, the Appellate Court, Third District, Workers Compensation Commission Division considered a case involving a right shoulder injury. The case proceeded to arbitration, and the arbitrator made an award of 25 percent loss of use of a person as a whole. The commission adopted the decision of the arbitrator, and the circuit court further affirmed the decision. The respondent sought review of the case by the appellate court. On appeal, the respondent argued that an award based on a person as a whole was improper because the petitioner failed to establish that his injuries prevented him from pursuing the duties of his usual and customary line of employment, Will County, 2012 IL App (3d) WC at 11, given that the petitioner returned to his regular job with no modification to his job duties. It was the respondent s contention that the award should have been based on a percentage loss of use of the arm, pursuant to section 8(e)(10) of the act. The appellate court upheld the award based on a person as a whole because the plain language of the act establishes that the arm and shoulder are distinct parts of the body. Therefore, if the petitioner sustained an injury to his shoulder, an award for a percentage loss of use of an arm would be improper. The court relied upon the petitioner s medical records to support its findings, and noted that those records clearly established an injury to the shoulder, as opposed to the petitioner s arm. In this case, the appellate court held that an injury to the petitioner s shoulder should result in an award based on a percentage loss of use of a person as a whole, and not an award based on a percentage loss of use of an arm. Despite the fact that shoulder injuries had routinely resulted in awards based on a percentage loss of use of an arm, the commission looked to the language of the act to conclude that this was improper. D. PTD Benefits Properly Denied for Failure to Establish Job Search In Professional Transportation, Inc. v. Illinois Workers Compensation Comm n, 2012 IL App (3d) WC, a petitioner sustained bilateral knee injuries which ultimately required knee replacements. Following the knee replacement procedures, the petitioner was provided with permanent work restrictions. The respondent s expert physician opined that the petitioner would be able to return to his regular job as a van driver. The petitioner s treating physician, by way of J-19

20 a functional capacity evaluation, concluded that the petitioner would not be able to return to his regular job. At trial, the petitioner testified that he had applied to nine separate car dealerships looking for work. In addition, the petitioner stated that he reviewed the job section in the newspaper for a year and a half, and was unable to obtain employment within his restrictions. Based on this evidence, the arbitrator awarded the petitioner 65 percent loss of use of his right leg, but denied the petitioner s request for an odd-lot permanent total disability award. The petitioner appealed the case to the commission, and the award was modified to provide the petitioner with permanent total disability based on the odd-lot theory. The circuit court affirmed the commission s decision, and the respondent brought the case to the Appellate Court, Workers Compensation Commission Division. At the appellate court, the respondent argued that the medical evidence did not support a permanent total disability award, and that the petitioner s job search was not sufficiently diligent to support a permanent total disability award under the odd-lot theory. The appellate court agreed, noting that both the medical evidence and the job search were insufficient for a permanent total disability award. The appellate court explained that the petitioner s job search was meager, and found that he had not put forth enough effort to establish a permanent total disability award. Finally, the appellate court relied upon the petitioner s medical records in finding that he should be capable of some type of work. Although the medical evidence revealed a dispute regarding the types of work he could perform, all of the petitioner s physicians agreed that he would be capable of some level of employment. In this case, the appellate court held that the petitioner failed to present sufficient evidence to establish a permanent total disability award. Specifically, the appellate court indicated that a more thorough job search would be required before a permanent total disability award would be appropriate. E. Manifest Weight of the Evidence In Wood Dale Electric v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC, the court held that the petitioner was entitled to a wage differential award despite his retirement and that the employer was not entitled to credit for pension benefits paid. The petitioner retired three years early after suffering a work related shoulder injury. The petitioner was no longer able to work at his previous job as a journeyman electrician and sought work through a vocational specialist. Before deciding to retire early, he accepted a job as a school bus driver. The bus driver job paid him $12.50 per hour for 20 hours per week as opposed to $37.80 per hour that he would have received as an electrician. The court held that the petitioner s voluntary decision to remove himself from the work force did not preclude a wage differential award. A wage differential award is determined by comparing the petitioner s prior earning capacity to the amount he is earning or is able to earn in some suitable employment or business after the accident. J-20

21 The court also held that the respondent could not use a section 8(j) credit for retirement pension benefits that the petitioner received upon his retirement. The parties did not dispute that the pension payments were the result of normal pension retirement benefits and were wholly unrelated to the petitioner s workers compensation accident. Under section 8(j), the employer receives no credit for benefits that would have been paid irrespective of the occurrence of a workers compensation accident. The court found that, while the petitioner s retirement was early, retirement was something that the petitioner would have done at some point and that payment of retirement pension benefits were separate and apart from the petitioner s workers compensation claim. Accordingly, the respondent was not entitled to a credit for pension benefits paid. The court agreed with the commission s finding that the petitioner was an independent contractor and not an employee at the time he was injured. In this case, the court noted that there were facts suggesting both that the petitioner was an employee and an independent contractor. After a lengthy discussion of the facts, the court noted that the evidence regarding the most important factor in determining an employer/employee relationship was the right of the employer to control the employee s work. In this case, the court noted that the evidence on that issue was conflicting and evidence concerning several of the other factors cut both ways. The court found that there was sufficient evidence to support the commission s finding of no employer/employee relationship, particularly considering the evidence suggesting that the employer did not control the manner in which the petitioner performed his work. The evidence was in conflict, therefore it was the commission s province to weigh the evidence and decide among competing inferences. The court concluded that it could not say that the commission s decision was against the manifest weight of the evidence, i.e., that the opposite conclusion was clearly apparent. Justices Hoffman and Stewart dissented. The justices agreed that the commission s province is to weigh the evidence when the evidence is well balanced and decide among competing inferences. They concluded that the evidence was not well balanced. In their view, the evidence supporting a finding that the petitioner was an employee far outweighed any evidence supporting the conclusion that he was an independent contractor. As a result, they believe that the decision was against the manifest weight of the evidence. In Stidwell v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, the court upheld the commission s decision to award permanent partial disability benefits and to deny the petitioner s claim of permanent total disability. The petitioner was diagnosed with carpal tunnel syndrome and was recommended for surgery. Her treating physician put a one-handed work only restriction on the petitioner based on the surgical recommendation. He made it clear that if the petitioner underwent the surgery, it was very likely that the petitioner would recover within four to six weeks and be able to resume her former occupation. The petitioner declined to have the surgery. At arbitration, the petitioner claimed that she fit into the odd lot permanent total disability category because of what she claimed was a permanent work restriction. The court noted that the commission correctly found that the work restriction would be permanent under the assumption that the petitioner received no further medical care for her condition. The court J-21

22 found that the commission s decision was not against the manifest weight of the evidence and denied the petitioner s claim of permanent total disability benefits. In Illinois Tool Works v. Illinois Workers Compensation Comm n, 2013 IL App (2d) WC-U, the commission originally found that the petitioner was entitled to a permanent partial disability award of 40 percent of a person as a whole. The circuit court reversed, finding that the commission s denial of wage differential benefits was against the manifest weight of the evidence. The circuit court remanded the matter to the commission with instructions to award the petitioner a wage differential. The commission followed the circuit court s direction and entered a wage differential award. The court found that the commission s original award of 40 percent of a person as a whole was not against the manifest weight of the evidence and vacated the wage differential award. The court noted that the commission found that the petitioner did not conduct a diligent job search before accepting work at $8 per hour. The petitioner also had a vocational expert testify that the petitioner could expect to earn between $8 to $12 per hour, and possibly as high as $15 per hour, in suitable work. The court found that essentially taking the first job that came along did not establish what the petitioner was able to earn and that the expert s testimony was vague on earning ability. Accordingly, the petitioner did not carry her burden of proof and the commission denied the wage differential award and instead awarded permanent partial disability. The court found that, under those facts, the commission and its decision was not against the manifest weight of the evidence and the denial of wage differential benefits was appropriate. F. Loaned/Borrowed Employees In Illinois Ins. Guar. Fund v. Virginia Surety Co., Inc., 2012 IL App (5th) , the petitioner was injured on the job while his employer, T.T.C. Illinois (T.T.C.) was lending him to MGM Company, Inc. (MGM). The workers compensation insurer for T.T.C. subsequently became insolvent, and the Illinois Insurance Guaranty Fund (the Fund) made payments to the petitioner. The Fund then filed this action for reimbursement from MGM s workers compensation insurer, Virginia Surety Company, Inc. The circuit court granted summary judgment in favor of the Fund, but the appellate court reversed, finding that Virginia Surety was not required to compensate T.T.C. s employees based on the following analysis. It is undisputed that the petitioner was a borrowed employee at the time of the accident. The facts indicated that T.T.C. intended to procure its own workers compensation coverage and that MGM needed coverage only for its own employees. As such, Virginia Surety disregarded MGM s leased employees, including the petitioner who was a leased employee of T.T.C., in MGM s premium calculations. The court analyzed three statutes to make its determination. The first argument was based on section 1(a)(4) of the act, which states that the rights and remedies of the workers compensation system are available to borrowed employees, the borrowing employer is primarily liable for compensable injuries, and the lending employer has a right of action against the borrowing employer to recover any compensation. The employers are authorized to reverse this J-22

23 payment priority. The court looked to the Wisconsin Supreme Court s application of a similar law where the Wisconsin Supreme Court found that the purpose of this law was to ensure the employee would be compensated. The court in this case agreed, and stated that the Illinois legislature meant to ensure that one of the two employers would financially prepare for employee accidents, and did not require both a lending employer and a borrowing employer to procure identical coverage for the same employees. The court went on to state that this type of duplicative coverage would not provide a double benefit, but would instead unnecessarily increase the cost of using a temporary staff and would give insurers a windfall whenever employees were loaned. Accordingly, the court held that section 1(a)(4) does not require duplicative coverage where the lending employer is contractually obligated to obtain coverage for leased employees. The court then looked to section 4(a)(3) of the act, which requires that an employer s policy cover all the employees. The court found that this means that an employer and its insurer cannot selectively omit an employee or employees from the coverage of a workers compensation policy. The court found that this does not suggest that a borrowing employer must duplicate the coverage that a lending employer has procured. Finally, the Fund relied on section 546(a) of the code, which states that a petitioner must be required to first exhaust all coverage provided by any other insurance policy before the Fund is obligated. Here, the court found that because MGM s coverage was limited to only its employees, not leased employees, the Virginia Surety policy was not other insurance within the meaning of section 546(a). Thus, the court held that none of the three statutes relied upon by the Fund shifted liability to Virginia Surety, ultimately holding that when a lending employer has workers compensation coverage, a borrowing employer is not required to obtain duplicative coverage. In Prodanic v. Grossinger City Autocorp., Inc., 2012 IL App (1st) , the petitioner brought a wrongful death action on behalf of her decedent who suffered fatal injuries when he was repairing a garage door on the premises of Grossinger City Autocorp, Inc. (City Autocorp). The trial court granted summary judgment in favor of City Autocorp on the basis that the decedent was a borrowed employee of City Autocorp and, therefore, the Workers Compensation Act provided the exclusive remedy. The decedent was hired by Grossinger Chevrolet (Chevrolet), and at the time of his injury he was working on the premises of City Autocorp, doing business as Grossinger City Toyota (Toyota). The decedent was hired as a driver for Gary Grossinger and to perform maintenance work. Gary was the only person who could discharge the decedent and the decedent was hired through Chevrolet, but Gary considered the decedent an employee of both entities. One workers compensation policy covered the employees of all Grossinger dealership, and each dealership paid its share. City Autocorp moved for summary judgment arguing that the decedent was a borrowed employee at the time of the accident, and the petitioner asserted that there was a genuine issue J-23

24 of material fact as to whether the decedent really was a borrowed employee. The court found that City Autocorp could call the decedent and tell him to come in and write a list of tasks for him to perform, and it could also stop the decedent from working if they felt his manner of work was unsafe. The record showed that it was unnecessary to control the decedent s work as he was self-sufficient and did not need instructions. The court affirmed the trial court s summary judgment order in favor of City Autocorp as the evidence showed that City Autocorp had the right to control the decedent, even if it did not necessarily exercise this right. G. Exclusive Remedy Provision In Glasgow v. Associated Banc-Corp., 2012 IL App (2d) , the petitioner was injured during a bank robbery while working as a bank teller for a branch of Associated Banc-Corp. In her complaint, she alleged that the bank s conduct was outrageous and that she suffered permanent injuries and psychiatric conditions. The trial court dismissed the complaint, determining that the Workers Compensation Act was the petitioner s exclusive remedy. Petitioner alleged that the bank was robbed twice previously, and that she and a coworker advised their supervisor that the bank lacked a security guard and bullet proof glass, and that the bank should not have open cash drawers, should not keep its vault open throughout the business day and should have a male teller present. According to the petitioner s complaint, the bank knowingly and willfully failed to provide adequate bank security and the bank s refusal to increase security measures constituted an intentional act of inviting another robbery. The defendants responded that their decision not to implement tighter security standards did not rise to the level of a specific intent to inflict injury as necessary, nor were the bank robbers in any way controlled or authorized by the bank. The court affirmed the dismissal, ruling that the petitioner did not allege that the defendants specifically intended that its actions would injure her or that the defendants commanded or authorized her injuries, nor could she reasonably make these allegations based on the facts. As such, the court found that the workers compensation payments that the petitioner was receiving were her only available remedy. In Rodriguez v. Frankie s Beef/Pasta and Catering, 2012 IL App (1st) , the trial court granted the defendant s motion for summary judgment on petitioner s negligence claim, finding that the petitioner s exclusive remedy was through the Workers Compensation Act. The petitioner contended that the exclusive remedy provision does not apply in a claim where the employer negligently hired and retained an employee and that a genuine issue of material fact exists as to whether the injury arose out of employment. The petitioner s claim arose from an altercation between Edan Maya and Jose Rodriguez, both employees of the defendant, where Maya shot Rodriguez. The record showed that Maya and Rodriguez had a verbal argument the day before the shooting, which started when Rodriguez taunted Maya about another employee being a better fry cook. The court found that the evidence was clear that the owner of the restaurant was unaware of the tensions between the parties, and that he did not believe Maya posed a serious threat of harm. Further, the owner did J-24

25 not authorize Maya s actions. The court declined to create a new exception to the act s exclusivity provision based on negligent hiring/retention. Looking at the petitioner s second argument concerning whether the shooting arose out of employment, the court declined to agree with the petitioner that the shooting was a purely personal dispute. First, the record showed that the altercation involved an argument about who was a better fry cook (a position at their employment) and, second, the court found that it was unlikely he would have been involved in the altercation had he not been employed by the defendant. Ultimately, the court affirmed summary judgment in favor of the employer. H. Statutory Interpretation of Section 5 (a) Regarding Immunity In Mockbee v. Humphrey Manlift Company, Inc., 2012 IL App (1st) , the petitioner brought a negligence action against defendants Harris Industries and R. Harris Electric (Harris) after she was injured when she fell into a floor opening of a manlift platform at the Quaker Oats Company plant where she worked. Petitioner contended that Harris, as safety inspectors of the manlift platform, owed her a duty of care and breached that duty when they failed to note the need for a safety guardrail required by OSHA. Quaker Oats hired Harris to inspect, maintain and repair the manlift platforms. Harris periodically inspected the manlifts and performed work on them. Harris never made any representations that it would inspect the manlifts for OSHA compliance, but managers of Quaker Oats said it was Quaker Oats expectation that Harris would ensure compliance with OSHA. Also, Harris had no authority to perform safety work unless expressly directed by Quaker Oats. The trial court granted summary judgment for Harris on the issue of proximate cause. The trial court declined to reach Harris s claim that it was entitled to immunity under the Workers Compensation Act. Harris raised this issue in its cross-appeal. This court affirmed summary judgment, but on the basis that Harris was entitled to immunity under section 5(a) of the act. Section 5(a) provides that there is no common law right to recover damages from any service organization retained by the employer. Harris asserted that section 5(a) precludes the petitioner s claim because (1) it is a service organization (2) retained by the employer (3) to provide safety service, advice or recommendations to Quaker Oats. The petitioner s only dispute is with Harris s claim that it is a service organization. The petitioner claims that including Harris as a service organization extends the language of the act beyond its meaning, and Harris went beyond safety inspections and also performed maintenance and repair. Further, the petitioner contended that allowing a party who had paid nothing towards workers compensation benefits to invoke the act s immunity would be wrong. Harris argued that it was retained to perform safety inspections, it was not under contract to perform continuing maintenance and could not perform maintenance without express authorization. Further, Harris argues that petitioner s claim is directly related to the negligence of its performance of safety inspections. J-25

26 The court looked to section 5(a), and noted that there can be no dispute that the legislature added service organization to the statutory language to expand the class of entities entitled to immunity. The court discussed that the apparent purpose of the amendment was to promote safety inspections. Further, the court found that if entities that did not contribute to workers compensation benefits were to be excluded from this immunity, the Illinois legislature would have used language to this effect. Harris was found to fall within the plain meaning of service organization. I. Traveling Employees A temporary worker who is injured while traveling from his temporary employment to his hotel room is considered a traveling employee under the act and it s reasonable for the employer to assume that the employee will rent a hotel room rather than commute the 200 miles between the employee s residence and his temporary work assignment. In this case, Venture-Newberg Perini Stone and Webster v. Illinois Workers Compensation Comm n, 2012 IL App (4th) WC, the petitioner was a union pipefitter, working at a nuclear power plant more than 200 miles from his home when he was injured in a motor vehicle accident while traveling from his motel to the jobsite. The petitioner had been hired by Venture- Newberg through his local Springfield, Illinois, union, and took the job because no jobs were available in the Springfield area. The petitioner filed workers' compensation action against Venture-Newberg, which was initially denied by the arbitrator, but found compensable by the commission on two grounds. First, the commission concluded the petitioner was in the course of his employment while traveling to work because the course or method of travel was determined by the demands or exigencies of the job rather than by the petitioner s personal preference as to where he chose to live. Second, the commission found the petitioner was a traveling employee at the time of the accident. On review, the circuit court set aside the commission s decision. The appellate court, in a 3-2 decision, reversed the circuit court and reinstated the commission s decision to award benefits. According to the court, a traveling employee is defined as one who is required to travel away from his employer's premises in order to perform his job. Venture-Newberg Perini Stone and Webster, 2012 IL App (4th) WC, 13. The court noted it was undisputed that (1) the petitioner 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 petitioner was assigned to work were not the premises of his employer. According to the majority, these facts established the petitioner's status as a traveling employee. However, the majority did not end its analysis there. This is not to say that the claimant's status as a traveling employee necessarily satisfied his burden of establishing that his injury arose out of and in the course of his employment. 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 his employment. Id. at 14. The test of whether a traveling employee's injury arose out of and in J-26

27 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. Id. In addressing this test the appellate court noted, 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. Id. at 15. Therefore, the commission properly concluded that the petitioner's injury, sustained when the vehicle in which he was riding to work from the lodge at which he was staying skidded on a public highway, arose out of and in the course of his employment. In a very interesting dissent joined by Justice Turner, Justice Hudson argued that the circuit court s reversal of the commission s decision should have been upheld. According to the dissent, [t]he majority notes that claimant was employed by respondent and he was assigned to work at a facility operated by another entity. Based on these findings, the majority concludes that claimant qualifies as a traveling employee since the premises at which the claimant was assigned to work were not the premises of his employer. Id. at 21. The dissent believed this interpretation expand[ed] the definition of a traveling employee beyond its intended scope. Id. As the dissent explained: Id. at 22. Significantly, claimant presented no evidence that he was required to travel away from his assigned work location in order to perform his job. Indeed, claimant's position required no travel from the work site at all. Further, claimant was not required to go to any other location prior to reporting to the Cordova plant. To the contrary, claimant's employment was fixed at a single location. Moreover, when claimant accepted the position with respondent he was aware that the job was located 200 miles from his residence. He voluntarily chose to work for respondent because no work was available within Local 137's home territory. I believe that the majority's position will lead to anomalous and unintended results. It would allow an employee who voluntarily chooses to live remotely from the place of employment to become a traveling employee and receive workers' compensation benefits for injuries while traveling to and from work from a temporary residence. Perhaps more significantly, under the approach taken by the majority, everyone hired at the Cordova plant on a temporary basis, even individuals residing in close proximity to the plant, would arguably became a traveling employee. According to Justice Hudson, I would hold that in cases such as this, where an employee is hired on a temporary basis only and is assigned by the employer to work at one specific jobsite J-27

28 for the duration of the employment, that assigned location becomes the employer's premises for purposes of the application of the traveling-employee rule. Of course, if the employee is directed or required to work away from the assigned location during the period of temporary employment, the employee would then become a traveling employee under the law. Id. at 26. This interpretation, he added, would lead to results more grounded in the true considerations of a given case and be more consistent with the purpose of the traveling-employee rule. That is, it is the requirements or directions of the employer, not a voluntary decision by the employee, that determines whether an individual is classified as a traveling employee. Id. In Northern Illinois Special Recreation Ass n v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, the court upheld the commission finding that the petitioner was a traveling employee at the time of her injury. The petitioner was leaving to do work related duties from her office. She went out to turn her car on to warm it up with the intent of going back in the office to get her coat and other items necessary for her trip. She was injured when she slipped and fell while closing the car door. The court found that the commission s conclusion that the petitioner was a traveling employee at the time of her slip and fall was not against the manifest weight of the evidence. In Johnson Contracting Co. v. Illinois Workers Compensation Comm n, 2013 IL App (3d) WC-U, the court upheld the commission s finding that the petitioner sustained accidental injuries when he fell from his work vehicle while the vehicle was parked in the petitioner s personal driveway. The evidence presented was sufficient to support a finding that the petitioner fell within the definition of a traveling employee. The employer contended that the petitioner was removing work materials from his work van with the intent to store them at his home, violating company and union policy. The employer maintained that it could not have anticipated or foreseen the conduct that caused the petitioner s injuries. The court noted that no written rule was submitted into evidence at arbitration. The petitioner was not disciplined for his actions. There was testimony that the petitioner and his conduct was consistent in the trade. The tests 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. The court found that the commission could reasonably conclude from the evidence in the record that the petitioner was a traveling employee and was therefore entitled to compensation. J. Independent Contractors In Labuz v. Illinois Workers Compensation Comm n, 2012 IL App (1st) WC, both the petitioner and the employer appealed the circuit court s decision, which awarded the petitioner certain benefits for his injuries. The petitioner testified that he worked as a truck driver for JKC Trucking Co., Inc. He stated that he had to watch a training video and submit to a drug test for his employment, but that he did not receive any benefits from the company. A month after he began his work, the petitioner signed a document indicating that he was an independent contractor, but he testified that he did not understand what the document said (the document was in English and he spoke Polish) and only signed it because he knew he had to in order to J-28

29 continue his work. The petitioner did not own his own truck, and only drove trucks bearing JKC s logos. He had to report his movements to JKC and request authorizations for repairs, and JKC would sometimes instruct him which routes to take. Another witness, an employee of a company who leased workers to JKC, testified that the petitioner was an independent contractor. He testified regarding the differences between JKC employees and independent contractors, including how the equipment was used, how they were paid and how they were instructed. The arbitrator found that the petitioner was an employee of JKC, relying on the control that JKC had over the petitioner and the use of JKC s equipment. The arbitrator noted the contract signed by the petitioner, but found that the signature was invalid as the petitioner did not understand English. The arbitrator awarded benefits, but denied any penalties against JKC. Both the petitioner and JKC sought review of the decision, and the commission unanimously affirmed. The circuit court then affirmed the commission s decision. The appellate court first looked at a jurisdictional issue raised by JKC, where JKC argued that the circuit court should have dismissed the petitioner s petition for review as he failed to effect proper service. JKC contended that section 19(f) of the act required service on a particular commission member, not the commission generally. The court disagreed, finding that the purpose of the statute is to timely and adequately notify the commission of the proceedings, and that this is no less accomplished if the commission receives notice as an entity rather than an individual member. The court also found that there was enough evidence to support the commission s decision that the petitioner was an employee of JKC. The court also reviewed the petitioner s contention that penalties should have been enforced against JKC. The court found that there were reasonable arguments for JKC s position that the petitioner was an independent contractor, and affirmed the commission s decision denying penalties. The court remanded the issue of petitioner s weekly wage, as the petitioner did not work continuously the year from which the calculations were made, so it was improper to divide his yearly wage by 52 week K. Accident In Fisher v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, the appellate court affirmed the commission s finding that the petitioner failed to prove that the petitioner s decedent was exposed to a harmful level of Freon arising out of and in the course of the decedent s employment. The court found that the factual evidence presented at the arbitration hearing was sufficient to support the commission s determination that the decedent s death was not causally related to exposure to Freon. The American Conference of Governmental Industrial Hygienist has determined that the safe exposure level for Freon is 1000 parts per million. In this case, test results showed, at most, a Freon exposure of 15 parts per million. Medical testimony established that if the decedent was exposed to Freon at 15 parts per million, it would not be a factor in his sudden cardiac death and would not aggravate any pre-existing cardiovascular J-29

30 disease. The petitioner did not present any evidence establishing the decedent s exposure to a claimed harmful level of Freon. The court found that the commission s denial of compensation was not against the manifest weight of the evidence. In Smeltz v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, multiple issues were present before the court. Of main interest is the court s ruling on accident. The court noted that the petitioner was injured on two separate occasions while she was holding up a mattress and folding a sheet under its corner in order to make a bed. The court agreed with the respondent that the potential for injury associated with the activity was a common risk faced by the general public. The commission found that, because the petitioner was exposed to the risk more frequently than the general public, she faced an increased risk of injury as a result of her employment. The finding was predicated on the determination that the petitioner was required to clean multiple hotel rooms each day. Cleaning the rooms included making king size beds with flat sheets that had to be tucked under the mattress twice in order to form hospital corners. In a specially concurring opinion, Justice Stewart disagreed that the petitioner s job of making beds was risk neutral. In his view, neutral risks include things like stray bullets, dog bites, lightning strikes and hurricanes. In this case, the petitioner was hired to perform a job and that one of her jobs was to make beds. The petitioner s injuries did not arise out of the employment because they were subjected to a neutral risk to a greater degree than the general public, rather, they are entitled to compensation because they were injured as a result of a risk distinctly associated with their employment. In other words, the petitioner was injured performing the very tasks she was hired to perform. In Hain v. Illinois Workers Compensation Comm n, 2013 IL App (2d) WC-U, the petitioner sustained a compensable work accident, however, the question of whether a cervical spine condition was related to the work accident was in dispute. The court upheld the commission s findings that the cervical condition of ill-being was not causally related to his work accident. The petitioner was injured on November 17, 2006 when he was installing a gas tank in a vehicle that fell on top of him. He testified that he immediately felt symptoms in his neck along with other compensable parts of his body. When he first sought medical care, he did not report neck symptoms. He made one report of some pain and stiffness in the lower part of his neck, however, there were no reports of neck symptoms by the petitioner until over six months later. The court found that the commission correctly acted as a fact finder in determining that the passage of time could lead to a denial of the cervical spine condition on a causal connection basis and that such a finding would not be against the manifest weight of the evidence. In Matros v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, the court affirmed the commission s finding that the petitioner failed to prove his claimed psychological disability was related to two different shoulder injuries. The court noted that the commission relied on a psychologist s notes that the petitioner presented unshaven and unkempt and reported having little motivation to do anything and basically laid around the house. Despite those claims, the record showed that the petitioner vacationed for two weeks in Hawaii and took another vacation in Spain. The doctor also reviewed surveillance with regard to appearance and J-30

31 behavior and testified that they were inconsistent with how the petitioner presented himself. The doctor opined that the petitioner was malingering and capable of work. Based on the record presented, the court found that the denial of benefits was not against the manifest weight of the evidence. In Worek v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, the court upheld the commission s finding that the petitioner failed to establish that he suffered injuries arising out of and in the course of his employment. The commission was entitled to give weight to evidence and determine credibility of witnesses. The commission found that the petitioner had a lack of credibility. He described his prior condition as minor back pain despite lengthy treatment for severe cervical and lumbar pain according to his treating physician. The petitioner had suggested to a co-worker that the co-worker lie concerning the alleged work accident, stating I am going to need you on this one. Another co-worker testified that he had told the petitioner a few days before the petitioner s claimed accident that he had injured his back in a non-work related injury that resulted in a herniated disc and that the petitioner shook his head, smiled and left. The arbitrator and commission thought that the conversation was quite suspicious. Finally, the arbitrator noted that the petitioner s mannerisms and demeanor while testifying indicated a lack of truthfulness. The court deferred to the commission in making findings of fact and that all of the commission s finding of fact were not against the manifest weight of the evidence. In Illinois State Treasurer v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, the commission concluded that the petitioner s injuries arose out of her employment. The court found that the commission s decision was against the manifest weight of the evidence because there was no evidence supporting a reasonable inference that the petitioner s employment exposed her to a risk not shared by the general public. The petitioner testified that she fell while attempting to change her shoes so that she could go downstairs to answer the doorbell and pick up the mail. The petitioner presented no evidence suggesting that the risks of performing those ordinary activities were somehow heightened by virtue of her employment. The petitioner s employer was uninsured, therefore the Illinois State Treasurer was involved in the case as custodian of the injured workers benefit fund. L. Causal Connection In Kawa v. Illinois Workers Compensation Comm n, 2013 IL App (1st) WC-U, although the petitioner had a compensable work accident, the commission found that the petitioner had reached maximum medical improvement and was not entitled to temporary total disability, medical or vocational rehabilitation and maintenance benefits after the MMI finding. The court found the commission s ruling to be against the manifest weight of the evidence and awarded the petitioner benefits. The court found that the commission s finding was based on the petitioner s failure to participate and attend a multi-disciplinary pain program. The petitioner s failure made it impossible to assess the psychological aspect of his condition of ill-being. The court found that the commission s finding was against the manifest weight of the evidence because the chain of events leading up to the MMI finding and after clearly established a causal J-31

32 nexus between the accident and the petitioner s various condition of ill-being. The court noted that the record contained no intervening cause that broke the chain of events leading up to the petitioner s conditions of ill-being at the time of arbitration. The court disagreed with the commission s finding that the petitioner s refusal to participate in the pain management program brought all potential benefits to an end. The court specifically noted that the commission found that the refusal to participate in pain management was not an injurious practice. In Illinois School of Health v. Illinois Workers Compensation Comm n, 2012 IL App (1st) WC-U, the court upheld the commission s finding that the petitioner failed to prove that her right knee condition was causally related to her work accident. At the time of the petitioner s first medical visit, she did not complain of right knee pain. She was not in distress. She did have a calf injury. Two days later, she reported that her knee gave out. She gave histories to later treaters that her patella dislodged and was positioned laterally over the right knee following her work accident and that she experienced severe pain and swelling of her entire right knee following the work accident. The court found that the commission had authority to resolve factual disputes and that the determination that the petitioner was not credible and did not have a causally related knee injury was not against the manifest weight of the evidence. J-32

33 Daniel R. Simmons - Partner Dan concentrates his practice in the areas of workers' compensation and general insurance defense, including auto liability, premises liability and thirdparty defense of employers. Since graduation from law school in 1984, he has spent his entire legal career at Heyl Royster in the Springfield office. He became a partner in Dan has extensive litigation experience. He has taken numerous cases to jury verdict both in state and federal courts. Additionally, he has arbitrated hundreds of workers' compensation claims before the Illinois Workers' Compensation Commission. Dan appreciates that his clients' goal is to conclude claims in the most efficient, economical means possible and strives to achieve that goal through motion practice, settlement or trial. Dan is a frequent author and lecturer on civil liability and workers' compensation issues. His speaking is both to clients and to Illinois attorneys for continuing legal education. Dan continues to provide writing and speaking services to the Property Loss Research Bureau/Liability Insurance Research Bureau's annual conference that is routinely attended by over 2,500 senior claims professionals from around the United States. Professional Recognition Martindale-Hubbell AV Rated Professional Associations Lincoln-Douglas American Inn of Court (past president and program director) Illinois State Bar Association Sangamon County Bar Association Central Illinois Claims Adjusters' Association Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit Education Juris Doctor, University of Iowa, 1984 Bachelor of Arts (Magna Cum Laude) - Political Science, Speech and Humanities, Augustana College, 1981 Dan is a past president and program director of the Lincoln-Douglas American Inn of Court. The Inn is designed to promote legal education, civility and collegiality among members of the bar. J-33 Learn more about our speakers at