The Journal of The DuPage County Bar Association

Back Issues > Vol. 10 (1997-98)

Worker’s Compensation Review 1997 Term Cases of Significance
By Honorable Michael J. Colwell

The Industrial Commission Division of the Illinois Appellate Court hears appeals that arise out of proceedings before the Illinois Industrial Commission. The Illinois Supreme Court assigns one judge from each of the five appellate districts to this panel. Consequently, the litigants appeal from the circuit court to the Industrial Commission Division instead of appealing to one of the five appellate districts. This panel hears oral arguments in Springfield and Chicago seven or eight times a year. The panel then issues the opinions and/or Rule 23 orders for each of the cases.

I have had the privilege of being assigned to the Industrial Commission Division since December 1994. This article reviews the more significant published opinions of our division of the appellate court in 1997.

ILLINOIS APPELLATE COURT CASES

Section 8(a) authorizes the Commission to award a claimant compensation for prescribed, but unperformed, surgical services.

Plantation Manufacturing Co. v. Industrial Comm’n (Rzao), Ill. App. 3d , 1997 WL 792745 (Ill. App. Dec. 29, 1997).

The claimant injured her back on August 21, 1985. Although the claimant’s treating physician recommended surgery, the claimant declined surgery. On April 2, 1988, an arbitrator found the claimant to be permanently partially disabled and awarded her temporary total disability benefits. The Commission subsequently affirmed that decision.

On January 16, 1991, the claimant’s treating physician again recommended surgery. This time, the claimant chose to proceed with the surgery, but the respondent refused to pay for the procedure. The claimant lacked the ability to pay for the procedure herself, and the claimant’s hospital refused to allow the surgery without the respondent’s authorization.

On October 20, 1992, the claimant filed a section 8(a) petition seeking an order for the respondent to pay for her recommended, but unperformed, surgery. The Commission found the claimant’s injury was causally connected to her accident and ordered the respondent to pay for the recommended surgery. The circuit court subsequently confirmed the Commission’s decision.

The issue was whether the Commission, pursuant to section 8(a), may award a claimant compensation for surgical services that are recommended and necessary, but unperformed at the time of the award.

The appellate court stated that specific medical procedures or treatments that have been prescribed by a medical service provider have been "incurred" within the meaning of section 8(a), even if they have not yet been paid for. The court found that section 8(a), according to applicable case law, authorizes the Commission to award prospective medical expenses. Accordingly, the court affirmed the Commission’s decision ordering the respondent to pay for the claimant’s prospective back surgery.

Security guard of an elementary school may receive compensation for an injury that resulted from an assault by a stray dog.

Springfield School Dist. No. 186 v. Industrial Comm’n (John M. DeAngelo), 687 N.E.2d 334, Ill. App. 3d (1997).

The claimant worked as a security guard at an elementary school. While making his rounds at 4:40 a.m., a dog ran into a classroom and grabbed the claimant by the pant cuff. The dog backed off and repeated his attack. Although the claimant did not notice any swelling or redness in his ankle, he felt shooting pain up his left leg into his spine, neck, head, and right arm. Subsequently, the claimant was diagnosed with chronic low back pain and neck pain of myofascial origin.

The arbitrator and Commission awarded the claimant benefits. On review, the appellate court confirmed the Commission’s award. The court explained that the record showed that the claimant was exposed to a risk greater than that of the general public and that a stray dog is a natural risk. The court stated that the claimant was at a location when and where the general public would not and could not be located. Further, the claimant’s confrontation with the dog occurred while the claimant was performing his watch duties, and his injuries resulted from protecting the school grounds and himself. Therefore, his injuries were causally related to his employment.

Two justices dissented, noting that it was "inescapable" that the claimant was exposed to a neutral risk. The dissent explained that there was no evidence in the record that suggested that dog attacks were more likely to occur at the school opposed to any other place. Further, there was nothing in the record that suggested that dogs were more frequently seen or around at 4:40 a.m. Therefore, as the dog was not damaging property, and the claimant was not attempting to remove the dog from the property, his injuries did not arise out of his employment.

Settlement agreement was a limited release.

Countryman v. Industrial Comm’n (FDL Foods), 292 Ill. App. 3d 738 (1997).

The claimant and the respondent entered into a settlement agreement on December 15, 1992, thereby settling several workers’ compensation claims. Subsequent thereto, the claimant filed an application for adjustment of claim for back injuries allegedly sustained on August 15, 1991. The respondent moved to dismiss the claimant’s application, arguing that the settlement agreement released all claims through December 15, 1992. The arbitrator granted the motion, the Commission affirmed, but the circuit court reversed.

The issue on appeal was whether the settlement agreement was a general release of all claims incurred through December 15, 1992, or a limited release of just those claims specifically contained in the agreement.

The settlement agreement listed three accident dates for injuries to claimant’s arms, wrists, and elbows, identified the time periods for which the claimant was temporarily totally disabled, and described the nature of the claimant’s injuries as bilateral carpal tunnel syndrome and elbow neuritis. The settlement agreement also repeatedly referred to settlement for "this incident" and required the respondent to pay the claimant to settle any and all claims for all accidental injuries allegedly incurred "as described herein," including any and all results or developments "allegedly resulting from such accidental injuries." The settlement amount represented a 25% loss of each arm less TTD benefits, group insurance payments, and unpaid medical expenses.

Only one sentence of the settlement agreement, found near the bottom of the first paragraph of the second page, contained general release language. That provision did not state, however, that the release was not limited to the injuries incurred on the specified dates nor did it refer to claimant’s back injury, even though the respondent admittedly knew that the claimant had injured his back prior to settlement.

The appellate court held that the settlement agreement did not bar the claimant’s back injury claim. The court found that the release was ambiguous as a matter of law because the general language conflicted with the specific language therein. Under the rules of construction, the more specific release provisions relating to the release from specified injuries and accidents controlled over the more general release provision.

The Commission lacked jurisdiction to enforce the insurer’s lien against a third-party wrongful death settlement.

Scott v. Industrial Comm’n (Travelers Insurance), 292 Ill. App. 3d 290 (1997).

The claimant, decedent’s wife, filed multiple claims for workers’ compensation benefits against the respondents. On July 15, 1992, the Commission awarded the claimant temporary total disability benefits; medical expenses; and sections 19(k) and 19(l) additional compensation and section 16 attorney fees from the insurer. In a companion case, the Commission further awarded the claimant section 19(k) additional compensation and section 16 attorney fees from the insurer, section 7(f) burial expenses, and a lifetime surviving widow’s benefit pursuant to section 7(a). The circuit court confirmed the Commission’s decision, and the appellate court affirmed.

On December 23, 1994, the insurer sought to present two motions in the Commission. The insurer asked the Commission to interpret its earlier 1992 decision and for a credit for and the issuance of an equitable lien in the proceeds of a January 15, 1993, settlement in a third-party wrongful death action. The insurer did not participate in the January 15, 1993, settlement because it had voluntarily withdrawn its lien and failed to refile a lien. In addition, the claimant filed a petition for additional compensation and attorney fees.

The Commission denied the insurer’s petition for interpretation and petition for credit. The Commission found that its 1992 decisions were not ambiguous. In addition, the Commission found that it lacked jurisdiction to determine the amount of a credit, and the circuit court was the proper forum for determining credit for funds received in settlement of third-party actions. The Commission awarded the claimant section 19(k) additional compensation and attorney fees. The circuit court confirmed the Commission’s decision.

The appellate court held that the Commission lacked jurisdiction to enforce the insurer’s lien against the settlement proceeds in the third-party wrongful death action, where the insurer voluntarily withdrew its lien and did not reinstate it. The appellate court also held that the claimant could not recover more than 50% additional compensation, even if she established more than one basis for recovery, as withholding of due compensation was a single injury.

Psychological injuries are compensable when the injuries are related to and caused by a physical trauma or injury.

City of Springfield v. Industrial Comm’n (B.K.), 291 Ill. App. 3d 734 (1997).

The Commission awarded the claimant benefits for a psychological injury she suffered after her supervisor forced her to engage in five acts of nonconsensual sexual intercourse over a five-month period. The claimant maintained that she suffered from depression because of the assaults and that, at times, she had contemplated suicide. A clinical psychologist diagnosed the claimant as suffering from generalized anxiety disorder and post-traumatic stress disorder. On appeal, the employer contended that the claimant did not establish a compensable psychic injury under the "physical-mental injury" theory.

The appellate court determined that the Commission’s using the "physical-mental" theory of recovery in awarding the claimant benefits was proper. The court explained that nonconsensual intercourse meets the requirement of physical conduct necessary for the "physical-mental" theory of recovery because rape, sexual assault, and battery are all physical bodily injury crimes in Illinois.

Next, the court upheld the Commission’s determination that there was a causal connection between the claimant’s injury and her employment. The court stated that the claimant’s testimony was unrefuted that she was pinned down and sexually assaulted several times during the five-month period. The court added that the Commission’s rejection of the employer’s argument that the contact was consensual because the claimant did not report it was a permissible inference that the Commission was allowed to draw. Therefore, the court affirmed the Commission’s decision.

Attorney fee award proper where employer’s basis for denying benefits was its dispute with its insurance agency.

McMahan v. Industrial Comm’n (Farmer’s Elevator), 289 Ill. App. 3d (1997).

The claimant injured his back while working for his employer. The arbitrator awarded the claimant benefits as well as attorney penalties and fees under sections 16, 19(k), and 19(l) of the Worker’s Compensation Act. 820 ILCS 305/16, 19(k), (l) (West 1994). The Commission modified the arbitrator’s award by eliminating the award of attorney fees under section 19(k). On appeal, the claimant argued that the arbitrator properly awarded section 19(k) penalties.

The appellate court found that evidence supported the Commission’s decision that the employer’s conduct in refusing to pay the claimant compensation was unreasonable and without just cause. The court explained that the employer was paying benefits until insurance coverage became an issue. The court stated that disputes between an employer and its insurance carrier were not a legitimate basis for nonpayment of compensation to a claimant. Therefore, since insurance was the only reason the employer quit paying benefits, the Commission could have held that the employer’s withholding benefits was unreasonable.

The court explained next that the Commission erred in reversing the arbitrator’s award of sections 19(k) and 16 penalties. The court explained that the Commission erroneously applied a higher standard to justify the denial of section 19(k) and section 16 penalties.

One justice dissented, noting that the arbitrator did not have authority to award fees or penalties under sections 16 and 19(k). Therefore, because it was under the Commission’s discretion to award penalties, and the Commission chose not to do so, its decision should not be disturbed.

Commission’s decision reversed where it erroneously credited claimant’s doctor with rendering an opinion the doctor did not make

Village of Oreana v. Industrial Comm’n (Tommy Gephart), 289 Ill. App. 3d 845 (1997).

The claimant worked as a public works superintendent in a water department. One day while working, the claimant attempted to hop over an 8-inch-high, 12-inch-wide snow drift. The claimant injured himself when he landed. The claimant’s physician diagnosed degenerative disc disease and performed surgery. It was undisputed that prior to the date of the snow drift incident, the claimant had long suffered from back problems.

The arbitrator found that the claimant failed to prove a causal connection between his surgery and the accident. The Commission reversed, and the circuit court confirmed the Commission’s decision. On appeal, the employer argued that no causal connection existed between the claimant’s accident and his surgery.

The appellate court agreed with the employer. The court stated that the record showed that the Commission credited the claimant’s doctor with rendering a diagnosis that he did not make. The court explained that the doctor never testified that the claimant sustained an aggravation of a preexisting injury. Instead, the doctor testified that the accident could have caused a back strain or an aggravation. Further, the doctor acknowledged that it was impossible for him to state whether the claimant’s surgery was necessitated by his accident. Therefore, the claimant had not brought forth any evidence that his surgery was causally related to his accident at work, and he could not receive benefits associated with the surgery or recuperation therefrom.

One justice dissented, noting that it was the Commission’s duty to weigh and resolve conflicts in the evidence. Accordingly, the dissent would have upheld the Commission’s drawing inferences from the doctor’s testimony that the claimant’s surgery was caused by his accident.

Sections 16 and 19(k) do not allow the Commission to award penalties for taking a meritless appeal.

Krantz v. Industrial Comm’n (Sahara Coal Co.), 289 Ill. App. 3d 447 (1997).

The claimant was injured while working as a maintenance repairman. The arbitrator found the claimant permanently partially disabled to the extent of 40% of the person as a whole. The Commission increased the award to 75% of the person as a whole. The claimant then filed a petition for attorney fees and penalties, arguing that his employer’s not paying him benefits while it filed an appeal with the circuit court was unreasonable and vexatious. The Commission declined to award penalties and fees, and the circuit court confirmed the Commission’s decision. On appeal, the question before the court was whether the Commission has the authority to determine whether an appeal to the circuit court is frivolous or made for the purpose of delay, and, if so, whether the Commission may award penalties and costs thereon.

The appellate court found that sections 16 and 19(k) of the Act do not allow the Commission to award penalties for the taking of a meritless appeal in the circuit court. The court explained that, by allowing the Commission to consider whether an appeal was meritless, the Commission would have to look at the circuit court’s judgment and the underlying merits of the appeal. As such a review would amount to a review of judicial proceedings, which is clearly beyond the Commission’s statutory powers, it could not be allowed.

The court added that claimants had a remedy to insure that employers do not behave vexatiously or unreasonably by filing a meritless appeal. The court explained that Supreme Court Rule 137 allows the circuit court to impose sanctions on a party who files a pleading that is not well grounded in fact, or is not warranted by existing law or a good-faith argument. Therefore, the claimant did have a remedy against his employer if he chose to utilize it.

Finding of causal connection was not against the manifest weight of the evidence.

Kraft General Foods v. Industrial Comm’n (Gianvecchio), 287 Ill. App. 3d 526 (1997).

The claimant filed two applications for adjustment of claim for injuries he sustained on February 1, 1992, and June 6, 1992, while working for respondent. As to the February 1, 1992, incident, an arbitrator found claimant suffered an injury to his right shoulder but awarded no permanency. That decision was not appealed. As to the June 6, 1992, incident, the arbitrator found claimant suffered an accident that was causally connected to the claimant’s condition of ill-being to both shoulders and awarded the claimant 5% loss of use of the left arm and 25% loss of use of the right arm. The Commission adopted and affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. Respondent appealed only the right arm award, contending that the Commission’s decision was against the manifest weight of the evidence.

The claimant’s expert examined the claimant and outlined both of the claimant’s accidents and subsequent treatments. The doctor attributed the claimant’s right shoulder injury to the February 1, 1992, accident and the left shoulder injury to the June 6, 1992, accident. In conclusion, however, he simply stated that the claimant’s conditions of ill-being were causally related to injuries he sustained on February 1, and June 6, 1992.

The respondent contended that the there was no conflict in the doctor’s letter since it clearly set out his opinion that the right shoulder condition was due to the February 1, 1992, accident and then, in conclusion, combined the two incidents and causation to form one succinct summary. The appellate court disagreed and found that the Commission could have found the doctor’s opinion inconsistent. It was unclear whether the doctor attributed the claimant’s right shoulder condition solely to the February accident or whether he opined that both accidents contributed to the condition. Thus, while the doctor’s opinion was the only opinion on causation, it was ambiguous and an inference could have been drawn either way. It is the Commission’s duty to resolve conflicts and in this case it did so by finding that the doctor opined a causal connection between the right shoulder condition and the accident in June. Based on this finding, the court also found that the doctor’s opinion was not the "sole" medical opinion and was not binding on the claimant as an admission against interest. Finally, the court found that the Commission’s decision regarding a causal connection between the claimant’s right shoulder condition and the accident of June 6, 1992, was not against the manifest weight of the evidence.

Presumption that pneumoconiosis arose out of employment did not come into play where there was no evidence claimant had pneumoconiosis.

Freeman United Coal Mining Company v. Industrial Comm’n, 286 Ill. App. 3d 1098 (1997).

The claimant worked in the coal mine industry for 25 years. He began having trouble breathing in 1970 or 1971. In 1985, the claimant was examined by a doctor. The doctor diagnosed the claimant with emphysema, chronic bronchitis, and coal workers’ pneumoconiosis. The doctor opined that the pneumoconiosis was caused by the claimant’s exposure to coal dust for 25 years, while his emphysema and chronic bronchitis were caused by his smoking and coal dust exposure.

The arbitrator found that the claimant suffered from pneumoconiosis that was causally related to and arose out of and in the course of his employment. The Commission reversed. The Commission stated that it believed the opinions of two of the employer’s doctors, who had testified that the claimant did not have pneumoconiosis and that the claimant’s condition was solely related to his history of smoking. The circuit court reversed the Commission’s decision, stating that the evidence in the matter gave rise to the rebuttable presumption that the claimant suffered from pneumoconiosis as a result of his coal mining employment. On remand, the Commission held in favor of the claimant. The employer appealed the decision to the appellate court.

The appellate court found that the circuit court erred in reversing the Commission’s decision. The court stated first that the circuit court misinterpreted section 1(d) of the Act. 820 ILCS 310/1(d) (West 1996). The court explained that, under section 1(d), a rebuttable presumption exists that, if a worker has pneumoconiosis, that condition was caused by his coal mine employment. Therefore, the rebuttable presumption only exists after it is settled that a worker does indeed have pneumoconiosis. As the dispute in the instant case centered on whether the claimant even had pneumoconiosis, the rebuttable presumption did not apply.

Next, the appellate court explained that interpreting conflicting medical opinions is the function of the Commission, and the Commission was allowed to adopt the opinions of the employer’s doctors. Therefore, the Commission could have reasonably relied on the doctors’ opinions, that the claimant’s condition was solely caused by his smoking, in denying him benefits.

In light of the respondent’s control over the claimant’s work performance, the claimant was an employee and not an independent contractor.

Netzel v. Industrial Comm’n (Presbyterian Nursing), 286 Ill. App. 3d 550 (1997).

On October 12, 1978, the claimant injured her back while working at the respondent’s nursing home as a patient’s private duty nurse. An arbitrator determined that the claimant failed to prove an employer/employee relationship existed and denied benefits. The Commission affirmed, but the circuit court set aside the Commission’s decision and remanded the cause for further proceedings. On remand, the Commission found an employer/employee relationship existed. The circuit court subsequently confirmed the Commission’s decision.

The appellate court, with two justices dissenting, initially noted that, when the facts are undisputed but permit more than one reasonable inference, as in this case, the determination of whether an employer/employee relationship existed is a question of fact that will not be disturbed on review unless it is contrary to the manifest weight of the evidence. Although the majority conceded that the claimant’s job contained elements of both an independent contractor and an employer/employee relationship, it found that the weight of the evidence supported the finding that the claimant was an employee entitled to benefits. The court focused primarily on the respondent’s right to control the manner in which the claimant performed her work. For instance, the claimant was subject to the respondent’s administrative regulations, the respondent’s head nurse gave the claimant regular instructions pertaining to the care and condition of her patient, the respondent required that the claimant’s performance of complex tasks be supervised, the respondent required the claimant to provide a verbal report to the nurse in charge whenever she left duty, and the respondent had the right to discharge claimant for any violations of its rules and regulations or for unprofessional conduct or improper patient care.

Termination of TTD benefits because of the claimant’s failure to cooperate with rehabilitation efforts was not against manifest weight of the evidence.

Stone v. Industrial Comm’n (Olson Construction), 286 Ill. App. 3d 174 (1997).

On April 2, 1990, the claimant injured his lower back while working for the respondent. An arbitrator awarded the claimant 219 4/7 weeks of temporary total disability benefits but terminated the claimant’s benefits as of January 20, 1994, because of the claimant’s failure to reasonably cooperate with rehabilitation. The Commission affirmed the arbitrator’s termination of benefits, and the circuit court confirmed the Commission’s decision.

The appellate court initially noted that the question of whether a claimant reasonably cooperated with rehabilitation efforts is generally a question of fact that will not be reversed unless it is against the manifest weight of the evidence. The court then found that the Commission’s decision to terminate the claimant’s TTD benefits as of January 20, 1994, was not against the manifest weight of the evidence. The court noted that over the three-month period that the claimant received rehabilitative counseling, he failed to take any steps to obtain his GED or to visit the library to research vocational interests, despite directions to do both; he failed to indicate that he was interested in vocational rehabilitation services; he forced an interview to be rescheduled; and he appeared unshaven, dirty, and improperly dressed for an interview, despite a counselor’s advice as to how to dress and appear.


Honorable Michael J. Colwell
is a Justice of the Illinois Appellate Court, Second District. He received his Undergraduate Degree in 1969 from Loras College and his Law Degree in 1972 from DePaul University.

Justice Colwell acknowledges the assistance of his law clerks, Kimberly D. Fahrbach and Kirk M. Zapp, in the preparation of this article.


 
 
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