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WHAT HAS THE APPELLATE COURT DONE FOR OR AGAINST US LATELY? CASE LAW UPDATE 

Presented and Prepared by: Joseph K. Guyette

jguyette@heylroyster.com Urbana, Illinois • 217.344.0060

Heyl, Royster, Voelker & Allen PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE • CHICAGO

© 2012 Heyl, Royster, Voelker & Allen

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WHAT HAS THE APPELLATE COURT DONE FOR OR AGAINST US LATELY? CASE LAW UPDATE

I. CAUSATION/ARISING OUT OF THE COURSE OF EMPLOYMENT .............................................. L-5

A. The Appellate Court Held That the Petitioner Had Removed Himself From the Course of Employment, But Re-Entered the Course of Employment Prior to His Accident, Concluding the Petitioner’s Injuries Were Compensable .............................................................................. L-5

B. The Commission Held That the Petitioner’s Employment Placed Him in a Position That Increased the Dangerous Effects of His Unexplained Fall, Finding His Claim to Be Compensable .............................................. L-5

C. The Commission Held That the Respondent Was Not Responsible for a Series of Physical Therapy Visits Where the Petitioner Noted That He Was Not Experiencing Any Pain ............................................................................. L-6

D. The Commission Rejected Speculative Evidence Regarding the Cause of a Petitioner’s Death, Where No Autopsy Was Performed ....................................... L-7

E. The Commission Upheld Compensability of the Petitioner’s Claimed Shoulder Injury, Despite an Eight-Month Gap Between the Claimed Accident and Initial Treatment ................................................................................................. L-7

F. The Commission Required Expert Evidence Regarding Causation and the Amount of Time It Took His Employer to Respond to a Heart Attack, Where He Claimed That Brain Damage Was Caused by a Delay in That Response .......................................................................................................................................... L-8

G. Due to the Lack of a Causal Connection Opinion, the Commission Overturned the Arbitrator’s Findings That the Medical Records Showed a Trend Linking the Petitioner’s Acute Accident and Her Carpal Tunnel Syndrome ......................................................................................................................................... L-8

H. The Commission Held That the Petitioner’s Lay Testimony and “Chain of Events” Explanation of His Injury Were Insufficient, and He Would Need An Expert Medical Opinion to Causally Link His Injuries to the Claimed Accident .......................................................................................................................... L-9

II. INTERPRETATION OF THE ACT ............................................................................................................. L-10

A. The Appellate Court Held That a Workers’ Compensation Claim Was the Exclusive Remedy for a Petitioner Who Had Been Leased Out by a Temporary Staffing Agency ................................................................................................. L-10

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B. The Appellate Court Held That the Tort Immunity Act’s One Year Statute of Limitations Does Not Apply to a Retaliatory Discharge Claim Based on the Workers’ Compensation Act ........................................................... L-11

C. The Appellate Court Held That the Petitioner Did Not Violate the Two-Physician Rule, Even Where the Medical Records Do Not Include Written Referrals for Each of the Petitioner’s Four Physicians, and the Petitioner’s Attorney Was Involved in a Number of the Referrals ............................ L-11

D. The Appellate Court Held That an Award Must Be Issued to the Petitioner in a 19(g) Proceeding Even Where a Credit Exists That Is Larger Than the Award .............................................................................................................. L-12

E. The Appellate Court Held That the Respondent’s Fraud Case Against a Petitioner Must Proceed Before the Workers’ Compensation Commission, Not at the Civil Court ...................................................................................... L-13

III. AVERAGE WEEKLY WAGE/AWARD CALCULATION ....................................................................... L-14

A. The Appellate Court Held That an Injury to the Petitioner’s Shoulder Should Be Subject to an Award Based on a Percentage Loss of Use of a Person As a Whole Instead of Loss of Use of an Arm ............................................... L-14

B. The Appellate Court Held That the Petitioner’s Overtime and Incentive-Based Bonuses Should Be Included in the Calculation of His Average Weekly Wage ................................................................................................. L-14

C. The Appellate Court Held That an Employer Is Entitled to an 8(j) Credit for the Amount of TTD That Was Paid to the Petitioner While She Was Also Receiving Her Full Salary ...................................................................................... L-15

D. The Appellate Court Held That the Petitioner Failed to Establish a Sufficiently Diligent Job Search So As to Support an Award for “Odd-Lot” Permanent Total Disability ................................................................................. L-16

IV. TEMPORARY TOTAL DISABILITY ........................................................................................................... L-17

A. The Appellate Court Deferred to the Commission’s Ability to Suspend TTD Benefits, Where the Petitioner Had Previously Refused Light Duty Work Within His Restrictions .................................................................................................. L-17

V. MEDICAL TREATMENT ............................................................................................................................. L-18

A. The Commission Holds That a Prosthetic Finger Is Reasonable and Necessary Medical Treatment Following an Amputation ............................................ L-18

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VI. PENALTIES AND FEES ............................................................................................................................... L-19

A. The Appellate Court Held That Undisputed Portions of an Arbitration Award Must Be Paid Even Where Other Portions Are Being Appealed to Avoid Penalties and Fees .................................................................................................... L-19

B. The Appellate Court Held That the Petitioner Was Not Entitled to Section 19(k) Penalties for Failure to Authorize Medical Treatment That Had Not Yet Been Completed ...................................................................................... L-19

VII. JURISDICTION .............................................................................................................................................. L-20

A. The Respondent’s Failure to Comply With the Provisions Governing a Review by the Commission Did Not Deprive the Commission of Jurisdiction Because the Employer Had “Substantially Complied” With Those Rules ......................................................................................................................... L-20

B. Substantial Compliance With the Procedures for Appealing a Case to the Circuit Court Is Not Found Where the Petitioner Failed to File a Petition for Judicial Review Within 20 Days After Receipt of the Commission’s Decision ............................................................................................................. L-21

C. The Appellate Court Found That the Circuit Court Was the Proper Venue for Interpreting the Provisions of the Act, Rather Than the Commission ........................................................................................................................... L-22

VIII. SUBROGATION/THIRD-PARTY PRACTICE ......................................................................................... L-23

A. The Appellate Court Held That a Trial Court May Not Reduce a Respondent’s Workers’ Compensation Lien in the Petitioner’s Civil Case ........................................................................................................................................ L-23

B. The Appellate Court Held That a Respondent Cannot Be Liable in a Contribution Action to a Third Party, Where It Has Settled a Workers’ Compensation Claim and Waived Its Rights to a Workers’ Compensation Lien .................................................................................................. L-24

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.

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WHAT HAS THE APPELLATE COURT DONE FOR OR AGAINST US LATELY? CASE LAW UPDATE

I. CAUSATION/ARISING OUT OF THE COURSE OF EMPLOYMENT

A. The Appellate Court Held That the Petitioner Had Removed Himself From the Course of Employment, But Re-Entered the Course of Employment Prior to His Accident, Concluding the Petitioner’s Injuries Were Compensable

In Johnson v. Illinois Workers’ Compensation Comm’n, 2011 IL App (2d) 100418WC, 956 N.E.2d 543, 353 Ill. Dec. 681 (2d Dist. 2011), the Appellate Court, Second District, Workers’ Compensation Commission Division considered a case where a police officer left his designated patrol area for a personal errand, against his employer’s rules. Then, while responding to a call about a drunk driver, he was injured in an automobile accident. At arbitration, the respondent argued that the petitioner’s injuries were not compensable because he had left the course of his employment at the time of his accident. The arbitrator found that the accident was compensable, but the Commission disagreed. The petitioner appealed the case to the circuit court, where the Commission was reversed. The circuit court concluded that the petitioner was within the scope of his employment at the time of the accident. The respondent brought the case to the appellate court, and argued that the automobile accident could not have occurred but for the petitioner’s deviation from the course of his employment. The appellate court acknowledged that the petitioner had deviated from the course of his employment, but concluded that he had re-entered the course of his employment when he received the call to respond to an alleged drunk driver. As a result, the appellate court held that the petitioner was in the course and scope of his employment at the time of his accident, and his claim was compensable. In this case, the appellate court clarified that a petitioner must be in the course and scope of his employment at the time of the accident, even if he previously had left the course and scope of his employment. The respondent’s argument that the petitioner would not have been at the site of the accident but for his deviation was ignored because that deviation ended prior to the accident.

B. The Commission Held That the Petitioner’s Employment Placed Him in a Position That Increased the Dangerous Effects of His Unexplained Fall, Finding His Claim to Be Compensable

In Terrell v. Pet Dairy, 11 I.W.C.C. 1228 (Dec. 16, 2011), the Commission considered a case where the petitioner suffered injuries as a result of an unexplained fall. In this case, the petitioner reported for work, and his supervisor noticed that he was acting strangely. The petitioner was

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taken for a drug and alcohol screen, but was allowed to return to his regular position that same day. Based on the arbitrator’s decision, it is not clear whether the petitioner testified, but the petitioner was unable to present any evidence establishing the cause of his fall. The arbitrator’s decision explained that falls resulting from epileptic seizures, fainting or other diseases or injuries that are internal or inherent to the petitioner are generally classified as idiopathic falls, and are not compensable. In this case, the arbitrator found the petitioner’s injuries to be compensable, because his employment significantly contributed to his injury by placing him in a position that increased the dangerous effects of his fall. The only witness to the fall testified that the petitioner was standing on flat concrete, when he became stiff and fell onto his face. The arbitrator ignored this testimony, and found that the medical records suggested that the petitioner had fallen while standing on scaffolding. Further, the arbitrator relied on the medical records to find that the petitioner struck his head on a metal strip or bar while falling. Relying on those findings, the arbitrator found the petitioner’s injuries were compensable, even though he had suffered an idiopathic fall. The respondent pursued a Commission review of the arbitrator’s decision. Without further explanation, the majority of the Commission panel affirmed the arbitration decision. One commissioner dissented, noting that the testimony of the only eyewitness contradicted the arbitrator’s findings. In this case, the Commission upheld the arbitrator’s decision, finding the petitioner’s claim to be compensable because his surroundings caused increased injuries following an idiopathic fall.

C. The Commission Held That the Respondent Was Not Responsible for a Series of Physical Therapy Visits Where the Petitioner Noted That He Was Not Experiencing Any Pain

In Martinez v. DSC Logistics, 11 I.W.C.C. 0927 (Sept. 19, 2011), the Commission considered a case where the petitioner continued to attend physical therapy sessions, even after all the pain related to his claimed back injury had resolved. In this case, the petitioner sustained a compensable low back strain while lifting boxes at work. The arbitrator ordered the respondent to pay for all of the petitioner’s medical treatment, and provided the petitioner with an award of 5 percent loss of use of a person as a whole. On review, the Commission upheld the arbitrator’s permanency award, but found the respondent should not be responsible for a number of the petitioner’s medical bills. Specifically, the Commission noted that the petitioner underwent eight physical therapy sessions where his pain complaints were zero on a scale of zero to ten. Following these physical therapy sessions, the petitioner was re-evaluated by his treating physician, again recording that the petitioner had no pain. The Commission deducted those bills from the amount awarded by the arbitrator, resulting in a savings of $5,000 to the respondent.

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In this case, the Commission held that the respondent should not be responsible for additional care and treatment after the petitioner’s pain complaints have completely resolved.

D. The Commission Rejected Speculative Evidence Regarding the Cause of a Petitioner’s Death, Where No Autopsy Was Performed

In Knaus v. Illinois State Tollway Authority, 11 I.W.C.C. 0924 (Sept. 19, 2011), the Commission considered a case where a petitioner was found unresponsive in a job site restroom. After being taken to the hospital, the petitioner was pronounced dead, but no autopsy was performed because of the petitioner’s religious beliefs. Both the petitioner and respondent presented records review reports at the time of arbitration. The respondent’s expert suggested it was impossible to determine the cause of the petitioner’s death without an autopsy. The petitioner’s expert opined that the petitioner’s job duties caused the heart attack that resulted in the petitioner’s death. The arbitrator sided with the petitioner’s expert, and awarded the widow workers’ compensation death benefits. The respondent sought a Commission review of the arbitrator’s decision. The Commission overturned the arbitrator’s decision, dismissing the petitioner’s expert’s report as speculative. The Commission noted that the petitioner’s medical records revealed pre-existing heart problems, including prior coronary artery by-pass surgery. The Commission held that the petitioner was required to establish that an accidental injury aggravated or accelerated the pre-existing condition, and that this determination must be based on evidence in the record. The Commission found that, without an autopsy, any causation opinion would be based only on speculation. In this case, the Commission required the petitioner to meet his burden of establishing causation through credible evidence, and found that a speculative causation report was insufficient to meet that burden.

E. The Commission Upheld Compensability of the Petitioner’s Claimed Shoulder Injury, Despite an Eight-Month Gap Between the Claimed Accident and Initial Treatment

In Aguilar v. Preferred Freezer Services, 11 I.W.C.C. 0828 (Aug. 24, 2011), the Commission considered a case where there was an eight-month gap between the petitioner’s claimed accident and initial medical treatment. The petitioner reported a shoulder injury to his supervisor and was given pain medication. At that time, he did not see a doctor. The petitioner testified that he used heating pads and over-the-counter pain medication to treat his shoulder, but continued to have pain. After eight months, the petitioner finally sought medical treatment and was diagnosed with a rotator cuff tear. At that time, the petitioner’s physician also causally related the rotator cuff tear to the claimed accident.

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At arbitration, the claimed accident was found to be compensable, and the respondent was required to pay for the rotator cuff surgery. In the decision, the arbitrator noted that the petitioner was uneducated and did not speak English. The arbitrator also noted that the petitioner did not know his employer would be responsible for necessary medical treatment. The respondent had the case reviewed by the Commission, but the arbitrator’s decision was affirmed. In this case, the arbitrator and Commission seemingly relied upon the petitioner’s lack of understanding of the workers’ compensation system to overlook an eight-month gap between the claimed accident and the onset of treatment.

F. The Commission Required Expert Evidence Regarding Causation and the Amount of Time It Took His Employer to Respond to a Heart Attack, Where He Claimed That Brain Damage Was Caused by a Delay in That Response

In Hayes v. Henry Pratt Co., 11 I.W.C.C. 0662 (July 7, 2011), the Commission considered a case in which the petitioner alleged that brain damage was caused by the respondent’s delay in responding to his heart attack while at work. In this case, the petitioner had significant pre-existing heart problems, and he was not alleging that the heart attack was caused by his employment. Instead, the petitioner alleged that the inadequate response by his employer, following the onset of heart attack symptoms, resulted in brain damage that would not have occurred if the employer had properly responded. At arbitration, the petitioner’s arguments were rejected, and compensability was denied. The petitioner filed a petition for review by the Commission. The Commission upheld the arbitrator’s decision based on a lack of evidence presented by the petitioner. Specifically, the Commission noted that there was no evidence presented to establish how long it took the employer to respond to the petitioner’s heart attack. Further, the petitioner failed to present any expert medical evidence to establish that the brain damage was caused or worsened by a delayed response by the employer. The Commission’s decision noted that an inference could be made that a delay in responding could result in increased damage to the brain, but specifically required the petitioner to present evidence in that regard. In this case, the Commission required the petitioner to present evidence to support causation, even where an inference could be made that causation was present.

G. Due to the Lack of a Causal Connection Opinion, the Commission Overturned the Arbitrator’s Findings That the Medical Records Showed a Trend Linking the Petitioner’s Acute Accident and Her Carpal Tunnel Syndrome

In King-Alexander v. W. A. Howe Development, 11 I.W.C.C. 0646 (June 30, 2011), the Commission considered a case involving an acute injury to the petitioner’s neck, back and shoulder. After the

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accident, the petitioner began complaining of right hand symptoms, and was later diagnosed with carpal tunnel syndrome. The petitioner did not have a medical causation opinion linking the acute accident to her carpal tunnel syndrome. The arbitrator found that all of the petitioner’s injuries were causally related to her employment, including her carpal tunnel syndrome. The arbitrator’s decision indicated that the chain of events revealed by the medical records showed the carpal tunnel symptoms increasing over time. Further, the arbitrator found that there was no indication of carpal tunnel symptoms prior to the accident. The respondent sought Commission review of the arbitrator’s decision, with regard to the diagnosis of carpal tunnel syndrome. The Commission reversed the arbitrator’s finding, denying compensability for the carpal tunnel syndrome. The Commission’s decision noted that the petitioner’s carpal tunnel complaints began more than two months after the alleged accident date. Further, the Commission found that the claim was based on an acute accident, rather than repetitive trauma. Therefore, the Commission found that the petitioner’s testimony regarding the repetitive nature of her job was irrelevant and insufficient to carry her claim. Finally, the Commission noted there was no causal connection opinion offered by any of the petitioner’s physicians, while the respondent offered expert testimony to establish that the carpal tunnel syndrome was not related to the claimed acute accident. Ultimately, the Commission found that the right carpal tunnel syndrome was unrelated to the claimed accident, reversing the arbitrator’s findings. In this case, the Commission reiterated the need for evidence to establish causal connection, and specifically found that the lack of symptoms prior to an accident is insufficient to carry a claim.

H. The Commission Held That the Petitioner’s Lay Testimony and “Chain of Events” Explanation of His Injury Were Insufficient, and He Would Need An Expert Medical Opinion to Causally Link His Injuries to the Claimed Accident

In Gibson v. Pizza Hut, 11 I.W.C.C. 0467 (May 10, 2011), the Commission considered a case where the petitioner attempted to causally link a twisting knee injury to a subsequent infection in his knee joint. At arbitration, the petitioner testified that he did not have any knee pain or injuries prior to his claimed accident. According to the petitioner, he twisted his knee while he was attempting to lift pizza pans. Shortly thereafter, the petitioner’s knee became increasingly painful, and was ultimately diagnosed with an infection in the knee joint. At arbitration, the petitioner was awarded medical bills, temporary total disability, and a permanency award of 20 percent loss of use of his left leg. The respondent had the case reviewed by the Commission, arguing there was no causal connection between the claimed accident and the joint infection. The Commission agreed, vacating the arbitrator’s award. The Commission noted that the petitioner’s lay testimony and

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“chain of events” explanation was insufficient to establish causation. The Commission explained that none of the treating physicians actually opined that the work accident caused the infection, and that the causation issues in this case were too complex to be established without expert testimony. In this case, the Commission found that the petitioner needed expert medical testimony to establish causal connection, rejecting his “chain of events” claim. II. INTERPRETATION OF THE ACT

A. The Appellate Court Held That a Workers’ Compensation Claim Was the Exclusive Remedy for a Petitioner Who Had Been Leased Out by a Temporary Staffing Agency

In Mason v. John Boos & Co., 2011 IL App (5th) 100399, 959 N.E.2d 209, 355 Ill. Dec. 181 (5th Dist. 2011), the Appellate Court, Fifth District considered a case where a temporary employee filed and settled a workers’ compensation claim against his temporary staffing agency, and then filed a civil action against the company that had leased him at the time of the accident. In this case, the petitioner was injured while operating a piece of machinery and received workers’ compensation benefits from the temporary staffing agency as a result of that injury. After the workers’ compensation case was settled, the petitioner brought a civil action against the company for whom he was working. That employer moved to dismiss the negligence complaint, and argued that the petitioner’s exclusive remedy was the Workers’ Compensation Act. The petitioner’s argument was based on the Employee Leasing Company Act. Specifically, the petitioner argued that the temporary staffing agency failed to properly register with the Illinois Department of Insurance. The appellate court rejected the petitioner’s argument, noting that the staffing agency’s failure to comply with the Employee Leasing Company Act would have no impact on the exclusivity of the Workers’ Compensation Act. The appellate court noted that the only exception to the exclusivity of the Workers’ Compensation Act is where an employer is uninsured. Specifically, section 4 of the Act allows an employee to bring a civil action against an employer who does not have workers’ compensation insurance. In this case, the temporary staffing agency had workers’ compensation insurance, even if the agency had failed to register with the Illinois Department of Insurance. As a result, the petitioner’s negligence claim was properly dismissed. In this case, the appellate court held that the Workers’ Compensation Act is the exclusive remedy for an injured employee, even if the petitioner’s employer has failed to register with the Department of Insurance.

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B. The Appellate Court Held That the Tort Immunity Act’s One Year Statute of Limitations Does Not Apply to a Retaliatory Discharge Claim Based on the Workers’ Compensation Act

In Collins v. Town of Normal, 2011 IL App (4th) 100694, 951 N.E.2d 1285, 351 Ill. Dec. 621 (4th Dist. 2011), the Appellate Court, Fourth District considered a case where an employee of a municipality suffered a compensable injury and settled his workers’ compensation claim. After that, his employment contract was not renewed. Sixteen months after his contract was non-renewed, the employee filed a retaliatory discharge claim pursuant to the Workers’ Compensation Act. The municipality moved to dismiss that claim based on the one year statute of limitations in the Tort Immunity Act. The circuit court agreed that the one year statute of limitations would bar the retaliatory discharge claim, and the employee’s case was dismissed. The plaintiff/petitioner brought the case to the Fourth District Appellate Court, arguing that a different section of the Tort Immunity Act should be applied to allow the retaliatory discharge claim. Specifically, the plaintiff/petitioner argued that section 2-101(c) of the Tort Immunity Act specifically does not bar a municipality’s liability for workers’ compensation claims. The plaintiff/petitioner argued that this section would apply to the retaliatory discharge claim, because it was brought pursuant to the Workers’ Compensation Act. The appellate court held that section 2-101(c) would apply to both the liability and procedural aspects of the Workers’ Compensation Act, allowing the retaliatory discharge claim to proceed. The appellate court concluded that an action falling under section 2-101(c) would be handled outside of the procedures dictated by the Tort Immunity Act. The appellate court ultimately remanded the case back to the circuit court for resolution of the retaliatory discharge claim. In this case, the appellate court held that the one year statute of limitations in the Tort Immunity Act could not be applied to bar a retaliatory discharge claim brought 16 months after a municipal employee’s employment contract was not renewed.

C. The Appellate Court Held That the Petitioner Did Not Violate the Two-Physician Rule, Even Where the Medical Records Do Not Include Written Referrals for Each of the Petitioner’s Four Physicians, and the Petitioner’s Attorney Was Involved in a Number of the Referrals

In Absolute Cleaning/SVMBL v. Illinois Workers’ Compensation Comm’n, 409 Ill. App. 3d 463, 949 N.E.2d 1158, 351 Ill. Dec. 63 (4th Dist. 2011), the Appellate Court, Fourth District considered a case where the respondent challenged the petitioner’s referrals to various doctors, and argued that the petitioner had violated the two-physician rule. In this case, the petitioner injured her back and treated with a number of physicians. Specifically, the petitioner saw a primary care physician, a chiropractor, a back specialist, and a pain specialist. The treatment records revealed that the initial treatment took place with a chiropractor, who referred the petitioner to a family physician. The chiropractor then referred the petitioner to a back specialist, but provided the

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petitioner with a choice of two physicians for that referral. From there, the petitioner was referred to another pain specialist. At arbitration, it was held that the petitioner did not violate the two-physician rule. The Commission affirmed the arbitrator’s decision and the circuit court did the same. At that point, the respondent took the case to the appellate court. Before the appellate court, the respondent argued that the petitioner had failed to present written referrals to each of the four physicians she had seen, and that the records reflected that the petitioner’s attorney directed the chiropractor to make a referral to a specific physician. Further, the respondent argued that the petitioner’s attorney’s involvement in at least one of the referrals constituted an improper attempt to circumvent the two-physician rule. The appellate court held that the petitioner did not violate the two-physician rule. Specifically, the court found that the context of a physician’s referral is irrelevant, so long as that physician ultimately makes a referral. The appellate court dismissed the notion that the petitioner’s attorney’s involvement was improper because it was the chiropractor who made the referral, not the petitioner’s attorney. Further, the lack of a written referral was unimportant, because the treatment records reflected which physician made the referral, and when the referral was actually made. In this case, the appellate court held that the petitioner did not violate the two-physician rule, even though some of the referrals were made under questionable circumstances. The appellate court held the petitioner to very minimal standards for establishing the validity of a referral. Other than to confirm that a referral was made by one physician to another, the appellate court did not make any further inquiry into the context of any referrals.

D. The Appellate Court Held That an Award Must Be Issued to the Petitioner in a 19(g) Proceeding Even Where a Credit Exists That Is Larger Than the Award

In Patel v. Home Depot USA, Inc., 2012 IL App (1st) 103217, 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 $27,357.47 for overpayment of temporary total disability benefits. At arbitration, the petitioner was awarded a sum of $22,798.54. 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 $5,215.31 and interest of $13,679.08.

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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.

E. The Appellate Court Held That the Respondent’s Fraud Case Against a Petitioner Must Proceed Before the Workers’ Compensation Commission, Not at the Civil Court

In Country Insurance and Financial Services v. Roberts, 2011 IL App (1st) 103402, 951 N.E.2d 1217, 351 Ill. Dec. 553 (1st Dist. 2011), the Appellate Court, First District considered a claim of fraud brought by an insurer against a workers’ compensation petitioner. In that case, the insurance company alleged that a petitioner had falsified a workers’ compensation claim and committed fraud in pursuing workers’ compensation benefits. The insurer filed a four-count complaint against the petitioner in the local circuit court, and the petitioner responded with a motion to dismiss. It was the petitioner’s argument that the Commission would have jurisdiction over the fraud claims, instead of the circuit court. The circuit court agreed, noting that primary jurisdiction was with the Illinois Workers’ Compensation Commission. The insurer appealed the circuit court’s order. The appellate court affirmed the order of the circuit court, noting that the Commission had special expertise in applying the Act. Because the insurer’s complaint did not present a question of law which required a judicial interpretation of the Act, jurisdiction was properly with the Commission. In this case, the appellate court held that the Commission had special expertise in applying the Act, and required the insurer’s fraud claims to be brought before the Commission instead of the circuit court.

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III. AVERAGE WEEKLY WAGE/AWARD CALCULATION

A. The Appellate Court Held That an Injury to the Petitioner’s Shoulder Should Be Subject to an Award Based on a Percentage Loss of Use of a Person As a Whole Instead of Loss of Use of an Arm

In Forest Preserve District v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 110077WC, 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,” 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.

B. The Appellate Court Held That the Petitioner’s Overtime and Incentive-Based Bonuses Should Be Included in the Calculation of His Average Weekly Wage

In Arcelor Mittal Steel v. Illinois Workers’ Compensation Comm’n, 2011 IL App (1st) 102180WC, 961 N.E.2d 807, 356 Ill. Dec. 418 (1st Dist. 2011), the Appellate Court, First District, Workers’ Compensation Commission Division considered a case involving whether the petitioner’s production bonus should be included in his average weekly wage. In this case, the petitioner worked at a steel mill, and his usual shift was eight hours. To meet production needs, however, the respondent often required the petitioner to work 12 hour shifts. The respondent referred to the 12 hours shifts as scheduled overtime, and those longer shifts were mandatory. Because of

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the mandatory nature of those longer shifts, those wages were included in the calculation of the petitioner’s average weekly wage, at the regular hourly rate. The petitioner also requested that the production bonuses be included in his average weekly wage. The petitioner was a member of a union, and the collective bargaining agreement with the respondent included significant incentive pay related to the amount of steel produced by the plant. These production bonuses would be paid every two weeks, based on the amount of steel produced for that two-week period. The Commission held that the production bonuses should also be included in the calculation of the petitioner’s average weekly wage. In reaching this conclusion, the Commission focused on two factors. First, the Commission noted that the bonuses were not gratuitous, and directly linked to production. Secondly, the Commission found that the bonuses were contemplated in the union contract, and constituted a large portion of the petitioner’s compensation. As a result, the bonuses were properly included in the calculation of the petitioner’s average weekly wage. The Commission’s decision was upheld by the circuit court, and the respondent sent the case to the First District Appellate Court. In an unpublished decision, the court upheld the Commission’s decision, as well as the reasoning included in the Commissions’ decision.

C. The Appellate Court Held That an Employer Is Entitled to an 8(j) Credit for the Amount of TTD That Was Paid to the Petitioner While She Was Also Receiving Her Full Salary

In Elgin Board of Education School District U-46 v. Illinois Workers’ Compensation Comm’n, 409 Ill. App. 3d 943, 949 N.E.2d 198, 350 Ill. Dec. 710 (1st Dist. 2011), the Appellate Court, First District, Workers’ Compensation Commission Division considered whether a petitioner may be entitled to both temporary total disability benefits and her full salary, where accrued sick time was used while the petitioner was restricted from work. In this case, a teacher was injured and unable to work for a period of about four months. During that time, the petitioner used accrued sick time to receive her full salary while restricted from working. At arbitration, the petitioner’s accident was found to be compensable, and she was granted TTD benefits for the period she was restricted from work. Because the petitioner had been receiving her full salary, however, the arbitrator granted the respondent an 8(j) credit for the amounts paid to the petitioner in sick leave. The petitioner had the arbitrator’s decision reviewed by the Commission, arguing that the respondent should not be entitled to any credit. In reversing the arbitrator’s decision, the Commission relied upon the case of Tee-Pak, Inc. v. Industrial Comm’n. Pursuant to Tee-Pak, a respondent would not receive a credit for benefits it would have paid even if the petitioner had not suffered any injury. Essentially, Tee-Pak stands for the proposition that the respondent can only claim a credit for payments made pursuant to the Workers’ Compensation Act. Because the petitioner was able to use her sick leave whenever she wanted, regardless of whether she

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suffered an injury at work, the Commission did not allow the respondent a credit for those payments. The respondent brought the case to the First District Appellate Court, arguing that it had no intent to pay both temporary total disability benefits and the petitioner’s full salary. The appellate court agreed with the respondent, reversing the Commission’s decision. The appellate court noted that in Tee-Pak, the respondent had intended to pay both temporary total disability benefits and the petitioner’s full salary. In this case, the respondent established that it was the petitioner’s choice to use her accrued sick leave, but there was no intent for the respondent to pay both sick leave and TTD benefits. As a result, the appellate court concluded that the respondent was owed a credit for the amounts paid in sick leave, up to the amount owed for temporary total disability benefits. In this case, the appellate court limited the petitioner’s ability to receive both salary and TTD benefits by looking to the intent of the respondent.

D. The Appellate Court Held That the Petitioner Failed to Establish a Sufficiently Diligent Job Search So As to Support an Award for “Odd-Lot” Permanent Total Disability

In Professional Transportation, Inc. v. Illinois Workers’ Compensation Comm’n, 2012 IL App (3d) 100783WC, 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 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

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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. IV. TEMPORARY TOTAL DISABILITY

A. The Appellate Court Deferred to the Commission’s Ability to Suspend TTD Benefits, Where the Petitioner Had Previously Refused Light Duty Work Within His Restrictions

In Otto Baum Co., Inc. v. Illinois Workers’ Compensation Comm’n, 2011 IL App (4th) 100959WC, 960 N.E.2d 583, 355 Ill. Dec. 701 (4th Dist. 2011), the Appellate Court, Fourth District, Workers’ Compensation Commission Division considered a case where a respondent refused to pay temporary total disability benefits to a petitioner who had previously turned down light duty work within his restrictions. The petitioner was restricted from work following an accident August 6, 2008. On August 28, the petitioner was cleared for sedentary work, and returned to the job. One day later, the petitioner claimed he was reinjured, and was again restricted from working. On September 2, 2008, the petitioner was again offered light duty work within his restrictions. At that time, the petitioner refused the light duty work, claiming that he did not feel comfortable driving while taking pain medications. A week later, the petitioner again refused a light duty position, claiming that it was painful to drive to the job site. Finally, on November 11, 2008, the petitioner was cleared for sedentary work, and informed the respondent that he was ready to return. The respondent did not offer him a light duty position at that time, because he had previously refused light duty assignments. At arbitration, the petitioner was awarded TTD benefits from the day after the accident through the date he was initially cleared to return to work. The petitioner was also awarded TTD benefits for a short period after his re-injury after returning to sedentary work. The arbitrator found that the petitioner was not entitled to any additional TTD benefits because of his failure to take light duty positions within his restrictions on two occasions. Petitioner had the case reviewed by the Commission, and his TTD benefits were expanded. The Commission found the petitioner was owed TTD benefits for the period after he was cleared to

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return to sedentary work, when the employer refused to offer him a light duty position. The employer appealed, and the circuit court affirmed the Commission’s decision. The respondent brought the case to the appellate court, and argued they had the right to terminate TTD benefits because of the petitioner’s failure to cooperate with previous light duty offers. The appellate court agreed with the respondent’s argument, but held that the Commission’s award was not against the manifest weight of the evidence. In coming to this conclusion, the appellate court noted that it is within the Commission’s discretion to terminate or suspend benefits in response to the petitioner’s refusal to take a light duty job within his restrictions. The appellate court concluded that the Commission may have found that the petitioner’s refusal was not so unjustified as to warrant the refusal to accommodate the petitioner’s work restrictions or pay TTD benefits. In this case, the appellate court deferred to the Commission’s broad discretion in determining when benefits can and should be suspended. This broad discretion is further supported by the “manifest weight of the evidence” standard normally applied by the appellate court in reviewing the Commission’s decision. V. MEDICAL TREATMENT

A. The Commission Holds That a Prosthetic Finger Is Reasonable and Necessary Medical Treatment Following an Amputation

In Baisa v. PACTV/Prairie Packaging, 11 I.W.C.C. 0607 (June 27, 2011), the Commission considered whether a prosthetic finger should be properly awarded under the Act following an amputation. In a work related accident, the petitioner’s left middle finger was amputated. The respondent proceeded to pay the statutory amputation benefits, but denied the petitioner’s request to provide a prosthetic finger. At arbitration, the respondent argued that the Act specifically requires the respondent to pay for a prosthetic for a work related loss of an arm, leg, hand, foot, eye or tooth. The respondent asserted that the Act did not contemplate the provision of a prosthetic for an amputated finger, and that the petitioner’s award should be limited to the statutory amputation benefits. The arbitrator rejected this argument, holding that the respondent would have to pay for a prosthetic where it is both reasonable and necessary. Because the petitioner’s physician suggested that the finger prosthetic would be both reasonable and necessary, and the respondent did not present any evidence to the contrary, the prosthetic finger was awarded. In this case, the Commission awarded the petitioner a prosthetic finger following an amputation, even though a prosthetic finger was not listed in the Act, while other body parts were specifically listed.

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VI. PENALTIES AND FEES

A. The Appellate Court Held That Undisputed Portions of an Arbitration Award Must Be Paid Even Where Other Portions Are Being Appealed to Avoid Penalties and Fees

In Jacobo v. Illinois Workers’ Compensation Comm’n, 2011 IL App (3d) 100807WC, 959 N.E.2d 772, 355 Ill. Dec. 358 (3d Dist. 2011), the Appellate Court, Third District, Workers’ Compensation Commission Division considered whether a respondent has an obligation to pay undisputed portions of an award while a case is on appeal. In that case, the respondent refused to pay undisputed portions of the petitioner’s benefits until its entire appeal was resolved on an unrelated issue. Following arbitration, the respondent sought Commission review of the arbitrator’s decisions regarding medical expenses, temporary total disability benefits and permanent total disability, and the petitioner sought review of the arbitrator’s award regarding penalties and fees. Following the Commission’s decision, the respondent did not pursue any further challenges, but the petitioner continued to appeal the denial of penalties and fees. Despite not seeking further review, the respondent did not pay the undisputed amounts of temporary total disability benefits, medical expenses and permanent total disability. The appellate court reversed the Commission’s denial of penalties and fees, and remanded the case to the Commission for a further determination on the amounts of section 19(k) and (l) penalties and section 16 attorneys’ fees. Further, the appellate court held that any portion of the petitioner’s benefits which are undisputed must be promptly paid or the respondent will be subject to penalties and attorneys’ fees pursuant to the Act. In this case, the appellate court held that undisputed portions of a workers’ compensation award must be paid to avoid penalties and fees, even if other portions of an award are still being appealed.

B. The Appellate Court Held That the Petitioner Was Not Entitled to Section 19(k) Penalties for Failure to Authorize Medical Treatment That Had Not Yet Been Completed

In Hollywood Casino-Aurora, Inc. v. Illinois Workers’ Compensation Comm’n, 2012 IL App (2d) 110426WC, 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.

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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. 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. 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. VII. JURISDICTION

A. The Respondent’s Failure to Comply With the Provisions Governing a Review by the Commission Did Not Deprive the Commission of Jurisdiction Because the Employer Had “Substantially Complied” With Those Rules

In Shafer v. Illinois Workers’ Compensation Comm’n, 2011 IL App (4th) 100505WC, the Appellate Court, Fourth District, Workers’ Compensation Commission Division considered a case in which the respondent failed to include the correct case number on a petition for review. The claimant had filed Applications for Adjustment of Claim indicating injury dates of November 23, 2007 and November 30, 2007. Both cases proceeded to arbitration, and the arbitrator issued two separate decisions on April 10, 2008. The arbitrator found both claims to be compensable, and additionally authorized a surgical consultation that had previously been denied by the respondent. On May 23, 2008, the respondent filed a single petition for review challenging the arbitrator’s findings with regard to both claims. The petition for review indicated the respondent was appealing both of the arbitrator’s decisions issued on April 10, 2008. The petition accurately identified the case number associated with the first claim, but the second claim was mis-identified as 07 WC 46127, instead of 07 WC 56127. The claimant did not object to the incorrect case number, but both parties were notified prior to oral arguments that they should be prepared to discuss whether the Commission had jurisdiction to review the incorrectly numbered claim.

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The Commission issued a decision finding that they properly had jurisdiction over the incorrectly numbered claim. The Commission found that the incorrect number “amount[ed] to a clerical typographical error.” The Commission concluded that the employer had substantially complied with the statute and rules allowing the review to proceed. In that same decision, Commissioner Yolaine Dauphin dissented, noting that “strict compliance with the Act and the rules is required to enable the Commission to exercise jurisdiction on a review.” On review by the circuit court, the claimant’s arguments were rejected, and the Commission’s decision was affirmed on all issues. The case was then appealed to the appellate court, which again affirmed the decision. The appellate court noted that the respondent had correctly identified the names of the parties and the date on which the arbitrator’s decisions were issued. The appellate court concluded that the typographical error was not sufficient to withdraw jurisdiction from the Commission, and held that the Commission was correct in finding it had jurisdiction over the mis-numbered claim. In this case, the typographical error was not caught by either party, and the appellate court found that there was sufficient information to identify which claims were being appealed, even though the respondent had mis-numbered one of the claims.

B. Substantial Compliance With the Procedures for Appealing a Case to the Circuit Court Is Not Found Where the Petitioner Failed to File a Petition for Judicial Review Within 20 Days After Receipt of the Commission’s Decision

In Gruszeczka v. Illinois Workers’ Compensation Comm’n, 2012 IL App (2d) 101049WC, 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, 2009. 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 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 subject-matter 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

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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 file-stamped 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.

C. The Appellate Court Found That the Circuit Court Was the Proper Venue for Interpreting the Provisions of the Act, Rather Than the Commission

In Hastings Mutual Ins. Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) 101751, the Appellate Court, First District 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 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 issued 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

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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. VIII. SUBROGATION/THIRD-PARTY PRACTICE

A. The Appellate Court Held That a Trial Court May Not Reduce a Respondent’s Workers’ Compensation Lien in the Petitioner’s Civil Case

In Johnson v. Tikuye, 409 Ill. App. 3d 37, 948 N.E.2d 298, 350 Ill. Dec. 229 (1st Dist. 2011), the Appellate Court, First District considered a case where a petitioner sought to have a respondent’s workers’ compensation lien reduced by the court to conclude a civil case. In this case, a driving instructor was injured when a student crashed her vehicle during a driving lesson. The driving instructor filed a workers’ compensation claim and received an award. In addition, the driving instructor brought a civil claim for negligence against her student. Following binding arbitration in the civil case, judgment was entered for the instructor’s damages. The amount ordered following the civil arbitration was less than the amount of the workers’ compensation award. As a result, the respondent filed a motion with the circuit court to enforce its lien for the entire amount of the civil arbitration award. In opposition to this motion, the driving instructor filed a motion to have an evidentiary hearing to determine what portion of the workers’ compensation award should be paid from the funds awarded in the civil arbitration. The circuit court reduced the workers’ compensation lien to approximately one third of the total amount paid in workers’ compensation benefits. The respondent appealed, and the appellate court reversed the trial court’s ruling. The appellate court concluded that section 5(b) of the Act did not allow the circuit court to reduce the amount of the respondent’s workers’ compensation lien. The plain language of that section dictates that the lien may be maintained to the extent of workers’ compensation benefits paid by the respondent. Essentially, the circuit court had no authority to reduce the respondent’s lien. In this case, the appellate court held that the respondent was entitled to collect its entire workers’ compensation lien up to the amount awarded in the petitioner/plaintiff’s civil case.

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B. The Appellate Court Held That a Respondent Cannot Be Liable in a Contribution Action to a Third Party, Where It Has Settled a Workers’ Compensation Claim and Waived Its Rights to a Workers’ Compensation Lien

In McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, 959 N.E.2d 186, 355 Ill. Dec. 158 (2d Dist. 2011), the Appellate Court, Second District considered a case where a third-party contractor filed a contribution suit against a respondent who had previously settled a workers’ compensation claim and waived its right to a lien. In that case, the petitioner was injured while working at a construction site and proceeded to file a workers’ compensation claim. The workers’ compensation case was settled, and the settlement contracts reflected that the respondent would waive any right to a workers’ compensation lien under section 5(b) of the Act. Following the resolution of the workers’ compensation claim, the petitioner filed a negligence claim against another contractor at the job site. Ultimately, that case was settled for an amount exceeding the workers’ compensation claim, and the third-party contractor specifically reserved the right to seek contribution against the respondent. The third-party contractor proceeded to file a contribution claim against the respondent, and the respondent filed a motion to dismiss. The circuit court dismissed the contribution action, noting that the respondent’s liability in this case would be capped at the amount of the workers’ compensation benefits it had paid to the petitioner. Because the respondent had waived its lien rights, there is no possibility for additional recovery. The third-party contractor then took the case to the appellate court. The appellate court upheld the circuit court’s ruling, noting that the respondent was not a party to the settlement agreement between the petitioner and the third-party contractor, where the third-party contractor reserved the right to seek contribution. Further, the appellate court noted that the respondent’s lien waiver would eliminate its contribution liability. Finally, the appellate court noted there was no evidence of bad faith by either the petitioner or the respondent in reaching a settlement with regard to the workers’ compensation claim. In this case, the appellate court held that the respondent’s liability for contribution was eliminated by waiving its rights to a workers’ compensation lien, even where the third-party contractor had specifically reserved the ability to seek contribution against the respondent in settling the civil case.

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Joseph K. Guyette

- Associate

Joe began his career with Heyl Royster, clerking in the Urbana office. Following graduation from law school, he joined the firm's Urbana office as an associate in August of 2004. During law school, he served as Articles Editor for the University of Illinois Journal of Law, Technology & Policy. Joe concentrates his practice in the areas of workers' compensation defense, professional liability and employment matters. Joe devotes a portion of his practice to representing the firm's clients at depositions of plaintiffs and fact witnesses in asbestos personal injury matters. Joe has taken several bench and jury trials to verdict, and has drafted and argued numerous dispositive motions. He has handled workers' compensation arbitration hearings at venues throughout the state, and has argued multiple cases before the Workers' Compensation Commission. He regularly handles depositions of expert witnesses and treating physicians in both civil and workers' compensation matters. Publications "Review of a Workers' Compensation Claim,"

Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2011)

"Settlement Contracts – New Law and What You Need to Know," Below the Red Line - Heyl Royster Workers' Compensation Newsletter (2009)

Professional Recognition Named to the 2012 Illinois Super Lawyers Rising

Stars list. The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation.

Professional Associations Illinois State Bar Association American Bar Association Champaign County Bar Association

Court Admissions State Courts of Illinois United States District Court, Central District of

Illinois Education Juris Doctor, University of Illinois, 2004 Bachelor of Science-Environmental Science,

Bowling Green State University, 2001

Learn more about our speakers at www.heylroyster.com