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. Accordingly, 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 at various locations in Illinois at least 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 a 1996 Illinois Supreme Court decision concerning workers’ compensation issues of significance to local practicing attorneys and the more significant published opinions of our division of the Appellate Court.
Illinois Supreme Court
Employer may be estopped from asserting statute of limitations defense when it participated in "lulling claimant into false sense of security"
Tegeler v. Industrial Comm’n (E.C. Baker & Sons, Inc.), 173 Ill. 2d 498 (1996)
The claimant was injured in a motor vehicle accident in the course of his employment. The claimant’s mother also worked for the employer as its corporate secretary. It was the mother who notified the company’s insurer of the claimant’s injuries. The claimant himself never dealt directly with the insurer except to give a statement about the accident. The claimant was treated by two orthopedic surgeons for two and three years, respectively, following the accident. Approximately two and a half years after the accident, the insurer called the claimant’s mother and asked that the claimant undergo an examination by the insurer’s chosen physician. The claimant complied. Two years and ten months after the accident, the insurer conveyed a settlement offer to the claimant’s mother, which she felt was too low and did not represent the full extent of the claimant’s injuries. The mother and the insurer’s agent apparently agreed to a further review of the claimant’s medical records. There was no further communication between the insurer and the mother or the claimant until approximately 36 months after the accident, at which time the insurer informed the claimant that the settlement offer was withdrawn and the case was closed because the statute of limitations for filing a claim had expired. The claimant filed a claim anyway, contending that the statute of limitations had been "tolled" by the actions of the insurer, which the claimant said led him to believe that his case was still under consideration by the insurer.
The arbitrator agreed that the claimant had reasonably relied on the insurer’s statements and actions with regard to his claim for benefits. The arbitrator awarded benefits. The Commission reversed the decision of the arbitrator, finding that the claim was not filed within the statutory period and that the burden of complying with the statute of limitations rests with the claimant, irrespective of the actions of the employer or the insurer. The circuit court confirmed the Commission, and the appellate court affirmed, with one justice dissenting. The dissenting justice noted that the employer had failed to comply with the rule requiring it to provide injured employees with a copy of the Handbook on Workers’ Compensation and Occupational Diseases. Therefore, according to the dissent, the employer was estopped from citing the statute of limitations as a defense. The rationale is that the claimant was never properly informed of his rights, nor of the applicable statute of limitations.
The Supreme Court reversed. It rejected the argument that failure to provide the employee handbook or other notice of the statute of limitations amounts to an automatic estoppel. However, the court found that the insurer’s actions reasonably led the claimant to believe that his claim was still under consideration. Justice McMorrow dissented. She believed that the insurer’s actions did not give rise to estoppel. However, she further stated that she believed the court should have given greater consideration to the assertion made by the dissent in the appellate court decision that failure to provide the statutorily-required handbook may amount to automatic estoppel.
Illinois Appellate Court
Commission did not abuse its discretion by denying claimant’s presumption that time records that had been destroyed would have shown the decedent did heavy lifting before he had his fatal heart attack.
Chidichimo v. Industrial Comm’n, 278 Ill. App. 3d 369 (1996)
The claimant filed an application for adjustment of claim under the Act alleging her husband sustained a fatal heart attack that arose out of and in the course of his employment. The claimant argued that the decedent’s heart attack was caused as a result of his lifting and moving 25 to 35 pound print magazines that day. The employer, however, contended that the decedent’s department was slow that day and that there was nothing for him to move. Moreover, the employer stated that the decedent’s heart attack occurred during his lunch break.
The arbitrator denied benefits, claiming that there was no accidental injury that arose out of or in the course of the claimant’s employment. The Commission affirmed and adopted the arbitrator’s decision. On judicial review, the circuit court remanded the case to the Commission to review additional evidence submitted by the claimant. On remand, the Commission affirmed. Subsequently, the circuit court confirmed the Commission’s decision.
On appeal, the claimant argued that the employer’s destruction of the decedent’s time records should give rise to a presumption in her favor that the decedent had in fact been lifting heavy magazines on that date.
The appellate court disagreed with the claimant. First, the court noted that the Act does not allow for pretrial discovery. Accordingly, the court said, no sanctions for discovery violations were possible. The court added that the time cards were destroyed during the company’s routine procedure more than one year after the third subpoena request. As a result, the court agreed with the Commission that there was no evidence that the time records were destroyed for any reason other than it was the routine procedure.
Second, the court indicated that the importance of the time cards was speculative at best. For example, the court stated that the employer produced independent evidence that rebutted any presumption that the decedent lifted magazines on the day of his heart attack. Further, the court said, the decedent’s heart attack occurred at 11:45 a.m., making it a possibility that the decedent never completed a production record for that day. Therefore, the court stated, the Commission did not abuse its discretion by denying the claimant a favorable presumption against the employer.
The test for determining whether a work-related injury caused an employee’s suicide does not include proving that unbearable physical pain alone was the causative factor.
Bocian v. Industrial Comm’n, 282 Ill. App. 3d 519 (1996)
The claimants, a surviving widow and her son, brought an action for death benefits under section 7 of the Act. The claimants contended that the decedent sustained accidental injuries while employed by the Town of Cicero Fire Department that caused his death by suicide. The arbitrator agreed with the claimants and awarded compensation.
On review, the Commission, with one dissent, denied the claimants’ claim for benefits. The Commission determined that the claimants had failed to prove a causal connection between the decedent’s work-related injuries and his subsequent suicide. Specifically, the Commission found that the evidence showed that the decedent was an unhappy individual who had expressed his desire to kill himself several times. Accordingly, the Commission concluded, the decedent’s suicide was causally connected to his distorted view of the future, not from his suffering physical pain as a result of his injuries.
The trial court reversed the Commission’s decision, finding that it was against the manifest weight of the evidence. The court stated that the evidence showed that the opposite conclusion was clearly apparent, as all the credible evidence led to the conclusion that the decedent’s injuries led to his suicide.
On appeal, the appellate court reviewed the law regarding the compensability of suicide. The court stated the Illinois Supreme Court has held that benefits should be awarded when a compensable injury gives rise to pain and depression that drive an employee to suicide. Further, the court explained that claimants are not required to prove that a work-related injury was the sole or principal cause of the suicide. Instead, claimants only need to show some evidence from which the reasonable inference could be drawn that the injury was a causative factor.
In applying the law to the facts before it, the appellate court affirmed the trial court’s ruling. The appellate court found that the claimants presented overwhelming evidence that established the reasonable inference that the decedent’s injury was a causative factor in his suicide. Particularly, the court noted that the record was replete with testimony from family members, workers, and friends who indicated that the decedent’s injury was the "line of demarcation in his mental and physical ability." The court explained also that both medical experts agreed that the decedent’s suicide was precipitated by major depression that did not manifest itself until after his work-related injuries occurred.
Finally, the court reiterated that the test for causation does not include showing that the decedent’s suicide was caused by his suffering from physical pain, as the Commission had ruled. Consequently, the court stated that the Commission’s requiring the claimants to show that unbearable physical pain drove the decedent to suicide was erroneous as a matter of law.
Commission did not err in admitting into evidence an additional surveillance video tape although the claimant’s due process rights were violated when he was not allowed to present rebuttal evidence to the video; a claimant’s business income should not be included in the calculation of average weekly wage.
Paoletti v. Industrial Comm’n, 279 Ill. App. 3d 988 (1996)
The claimant injured his back when he picked up a bag of garbage while working as a "refuse scavenger" for the Village of Winnetka. The claimant also owned a landscaping business. The claimant treated with the village’s doctor and was referred to another doctor, Dr. Rothman, who performed a laminectomy and a microdiskectomy on the claimant’s back.
Approximately two months after the surgery the Village requested Dr. Rothman to complete forms indicating what type of activities the claimant could do upon returning to work. Dr. Rothman recommended that a desk-type job would be appropriate but stated that the claimant could bend, squat, and lift occasionally, but could not climb.
Dr. Rothman completed two other forms approximately five and eight months after the surgery. In his last form, Dr. Rothman indicated that the claimant was permitted to resume activities, but not heavy lifting or bending.
At the arbitration hearing, a private investigator testified that he videotaped the claimant plowing his driveway, placing a can of paint into his truck, and hanging up Christmas lights on trees in front of his residence. Further, another doctor testified that the claimant could have returned to work as soon as two months after his accident and that Dr. Rothman’s restrictions were unrealistic.
The arbitrator found that the claimant sustained an accidental injury which arose out of and in the course of his employment and determined that he was permanently disabled to the extent of 60% loss of the person as a whole. The Commission affirmed and adopted the arbitrator’s decision, except that it modified the arbitrator’s decision regarding permanent disability in finding that the claimant was permanently disabled only to the extent of 20% loss of the person as a whole. The Commission stated that it relied on a video tape that was submitted as additional evidence over the claimant’s objection in modifying the arbitrator’s decision.
On appeal, the claimant contended that the Commission erred in failing to include the income generated by his landscaping business in calculating his average weekly wage. Second, the claimant argued that Commission erred in admitting into evidence the additional video tape. Third, the claimant argued that he was denied due process of law because he was not allowed to present rebuttal evidence to one of the witness’ testimony at trial and before the Commission concerning the additional video tape.
First, the appellate court stated that a claimant’s business income should not be included in the calculation of average weekly wage. The court explained that the question of whether net profits should be considered in calculating a claimant’s average weekly wage was of first impression in Illinois. The court said that the Act stated that actual earnings form the basis of the average weekly wage. Accordingly, the court reasoned, net profits could not be considered in the average weekly wage because the claimant’s net profits were clearly distinguished from his actual earnings.
Second, the appellate court found that the Commission did not err by admitting into evidence the additional surveillance video tape. Cf. 820 ILCS 305/19(e) (West 1992) (stating that after December 18, 1989, no additional evidence shall be introduced by the parties before the Commission on review of the decision of the arbitrator). The court explained that the Act states that it is within the sound discretion of the Commission to determine whether additional evidence should be allowed on review. Accordingly, because the tape related to the claimant’s physical condition, the Commission did not abuse its discretion.
Third, the appellate court found that the arbitrator erred in not permitting the claimant to present rebuttal evidence to the testimony of one of the doctors. The court explained that although the issue was one of first impression in Illinois, other states have held that a party is denied due process of law if that party is not permitted to present rebuttal evidence in workers’ compensation cases. Accordingly, the court stated that the arbitrator in the instant case should have allowed the claimant to rebut the testimony of the doctor. The court, however, then said that the error was harmless as the doctor merely related what other evidence, such as the video tapes and medical records, reported. Further, the court stated that the claimant was not prejudiced by not being able to testify that the doctor did not review with him any medical history.
Finally, the court stated that the Commission’s failing to allow the claimant to offer rebuttal evidence to the additional surveillance video also violated the claimant’s due process rights. The court concluded that this error was not harmless. The court explained that the Commission explicitly relied on the video when modifying the claimant’s award. Further, the court stated that rebuttal evidence concerning surveillance video tapes was important because although a tape showed that a claimant did heavy work, a tape could have excluded other material events, such as scenes with the claimant resting between the work or scenes where the claimant, although doing the work, was in constant pain. Therefore, the appellate court vacated the Commission’s award and remanded the cause to the Commission to allow the claimant the opportunity to present rebuttal evidence to the additional tape.
The Commission is allowed to disregard unrebutted medical testimony for nonarbitrary and legitimate reasons.
Sorenson v. Industrial Comm’n, 281 Ill. App. 3d 373 (1996)
The claimant, a 68 year old kindergarten teacher, injured her back while attempting to move a pile of books. The claimant had surgery approximately five months later. The claimant stated that after the surgery she felt better, but then the problems returned and she was in constant pain and unable to do the things that she used to do.
The record revealed that the claimant saw various doctors for treatment. One doctor stated that the claimant’s accident caused her back problem necessitating her surgery. Another doctor said that the claimant’s condition was due to an osteophyte on one of her discs. Overall, the various physicians did not agree on what the claimant suffered from, what necessitated her surgery, and whether the claimant suffered problems after the surgery.
The arbitrator found that the claimant suffered a lumbar strain that arose out of and in the course of her employment. The Commission determined that a causal connection existed between the claimant’s accident and her back strain, but did not find that a causal connection existed between the claimant’s condition and her back surgery. On judicial review, the circuit court modified the Commission’s award of medical benefits.
On appeal, the claimant contended that the Commission erroneously discounted the unrebutted testimony of one of her doctors regarding causal connection. The claimant argued that her doctor gave the only medical testimony on causal connection. Therefore, the claimant contended, the Commission was prohibited from discounting her doctor’s opinion and the Commission’s finding the opinion was "fatally flawed" was erroneous.
The appellate court disagreed. In reviewing the cases cited by the claimant, the appellate court stated that under Illinois law the testimony must not only be unrebutted, but it must also be sufficient to support a finding of causal connection. In applying this principle to the case before it, the court stated that the Commission’s decision to disregard the doctor’s testimony was not against the manifest weight of the evidence. The court explained that although the Commission cannot arbitrarily reject the testimony of witnesses, it has the discretion to disregard a witness’ statement.
In the instant case, the court said, the arbitrator gave specific and legitimate reasons for rejecting the doctor’s testimony. Specifically, the court noted that the arbitrator rejected the doctor’s testimony after concluding that the testimony showed the doctor’s apparent lack of understanding of the claimant’s course of treatment. Accordingly, the Commission’s decision finding no causal connection between the claimant’s surgery and the accident was not against the manifest weight of the evidence.
The burden is on the claimant to prove that he is incapable of gainful employment; merely proffering medical evidence of disability does not shift the burden of proof to the employer.
Alano v. Industrial Comm’n (County of Cook), 282 Ill. App. 3d 531 (1996)
The Commission awarded the claimant permanent partial disability (PPD) benefits the extent of 45% of the man-as-a-whole. Claimant argued that he was 100% disabled. The court noted that a claimant can generally prove permanent total disability by showing either: (1) Diligent attempts to find work, and that none was available; or (2) that based on his age, experience, training and education, he is unable to perform any but the most unproductive tasks for which no stable labor market exists.
The claimant argued that under Electro-Motive Division, General Motors Corp. v. Industrial Comm’n, 240 Ill. App. 3d 768 (1992), that test applies only if he fails to provide any medical evidence to support his claim of total disability. Here, the claimant offered the opinion of his doctor that claimant was unable to work. Thus, the claimant contended, once he proffered such evidence, the burden of proof shifted to the employer to show that work was available for him. The court rejected this argument, finding that the burden remains on the claimant, and that merely proffering evidence does not shift the burden of proof.
One justice specially concurred, stating that if the claimant is not "obviously unemployable," he has the burden of proffering evidence which the Commission finds credible that he is unable to work.
Two justices dissented. They contended that the plurality’s opinion effectively eliminated the "odd-lot" category (one who, though not all altogether incapacitated to work, is so handicapped that he will not be employed in any well-known branch of the labor market), wherein the burden of proof has indeed been found to shift to the employer once the claimant proffers evidence that he is an "odd-lot" candidate.
"Odd-lot" status: claimant must initially establish, by a reponderance of the evidence, that he falls into the odd-lot category before the burden shifts to the employer to show availability of work.
Lantner Courier v. Industrial Comm’n, 282 Ill. App. 3d 1 (1996)
The claimant injured her back while carrying suitcases for her employer, Courier. After treating with an orthopedic surgeon, the claimant underwent surgery. Subsequent to the surgery, the claimant’s doctor stated that the claimant would be temporarily disabled for ten weeks and had some permanent impairment. The doctor also imposed various restrictions and said that the claimant was not physically capable of performing her prior duties.
Another doctor examined the claimant pursuant to Courier’s request. That doctor stated that the claimant showed no indication for work restrictions and was capable of working.
After the claimant was released for light-duty work, the claimant attempted to work-part time for Courier, but her pain increased. Through Courier’s assistance, the claimant applied for various jobs. She stopped looking for work shortly thereafter when she was robbed while on a job interview. The claimant received treatment for a nervous breakdown after the robbery.
A certified rehabilitation counselor evaluated the claimant’s potential for rehabilitation and returning to work. The counselor stated that in his opinion the claimant was not employable in any occupation. At the request of Courier, the claimant was reevaluated by another rehabilitation center. According to that center, the claimant was employable in any one of sixteen jobs. At the time of the arbitration hearing, a complete labor market survey regarding the availability of employment options had not been completed.
The arbitrator awarded the claimant TTD and a weekly award for life for permanent total disability. The Commission awarded the claimant TTD benefits and permanent partial disability to the extent of 45% of the person as a whole. The Commission’s PPD award was for 225 weeks. The circuit court found that the Commission’s finding that the claimant was not permanently totally disabled was against the manifest weight of the evidence. Accordingly, the court required Courier to pay an additional sum in medical expenses.
On appeal, the claimant contended that the Commission’s finding that she was entitled to PPD benefits and not PTD benefits was against the manifest weight of the evidence.
The appellate court found that the Commission’s determining that the claimant was not permanently totally disabled was not against the manifest weight of the evidence. In explaining that the claimant did not meet the burden of proving that she was totally and permanently disabled, the court described the "odd-lot" doctrine.
The court said that under the "odd-lot" doctrine, the burden shifts to the employer to produce evidence that some type of regular and continuous employment is available to the claimant after the claimant makes a prima facie showing that he fits into an "odd-lot." The court explained that the term prima facie when discussing odd lot did not mean simply bringing forth sufficient evidence so that a finding in that party’s favor could be supported. Instead, the court reasoned, in odd lot cases the term prima facie meant "initially" and that a claimant must "initially" establish by a preponderance of the evidence that she falls into the odd-lot category before the burden shifts to the employer to show availability of work.
In the instant case, the court said, the claimant was not obviously unemployable and there was no medical evidence that she was permanently disabled. Accordingly, the claimant did not establish that she fit into the odd lot category and the burden never shifted to the employer. Therefore, because the claimant did not meet her burden of proving that employment was unavailable to a person in her circumstances, the Commission’s decision was not against the manifest weight of the evidence.
A dissenting justice disagreed with the majority’s finding that a claimant must make more than a prima facie case to shift the burden and stated that the majority’s odd-lot analysis was faulty.
The dissent stated that under Illinois law a claimant could make a prima facie case for odd-lot status in one of two ways. First, a claimant could meet the burden by showing diligent but unsuccessful attempts to find work. Second, a claimant could show that because of the claimant’s condition, age, training, education, and experience, the claimant is unfit to perform anything but the most menial tasks for which no stable job market exists. The dissent stated that in the instant case the claimant presented medical evidence that she was unemployable in any occupation. Consequently, the claimant met her burden of fitting into an odd lot and the burden shifted to her employer to show that some kind of work was regularly and continuously available. The dissent further noted that under this analysis the employer failed to meet its burden because it did not show that there were in fact jobs available that the claimant could perform.
Overtime hours are excluded from calculation of average weekly wage; however "straight time" hours beyond 40 hours per week are not excluded if they are part of claimant’s normal work week. Fringe benefits were properly excluded, however.
Ogle v. Industrial Comm’n (Welded Tube of America), 284 Ill. App. 3d 1093 (1996)
The claimant was a union member, and the union contract provided that workers would work beyond 40 hours per week as a matter of course. Section 10 provisions in effect at the time of the claimant’s injury provided that compensation was to be calculated on the basis of the average number of hours claimant actually worked in the 52 weeks preceding the injury. The claimant provided sufficient evidence that his average work week was 48 hours. Thus, claimant was entitled to compensation based on a 48 hour work week at his "straight-time" hourly wage rate. He could not include overtime pay; but could calculate his average wage rate based on actual number of hours worked multiplied by his normal hourly wage. Claimant also contended that his fringe benefits should be included in the calculation of his average weekly wage. However, the court found that there was no relationship between the number of hours worked and the amount of benefits (ie. pension contributions, etc.) which were paid on his behalf. Further, those benefits were not paid by the employer directly to claimant, but were rather paid directly to the union. Finally, the plain language of the statute makes no mention of the inclusion of such benefits in the calculation of average weekly wage. Thus, the court said, the Commission did not err in excluding fringe benefits from the calculation.
Commission may give more weight to a claimant’s examining doctor than a treating doctor.
Prairie Farms Dairy v. Industrial Comm’n, 279 Ill. App. 3d 546 (1996)
The claimant allegedly injured his back after he slipped and fell while working for his employer. The claimant subsequently treated with his physician, who diagnosed degenerative arthritis with spondylosis. The claimant continued to have back problems for the following five years and eventually underwent a laminectomy. The claimant’s doctor attributed the claimant’s condition to his work-place accident.
At his employer’s request, the claimant was examined by another physician. That physician opined that the claimant’s current symptoms were not related to his work-place accident and that surgery was not needed to cure any effects of that injury.
The arbitrator found that many of the claimant’s health problems were related to a stroke and other conditions of ill-being that were not related to the claimant’s accident. The arbitrator did find, however, an aggravation of a preexisting condition and awarded the claimant some TTD benefits. The Commission affirmed the arbitrator’s findings.
On judicial review, the circuit court reversed the Commission’s decision and remanded the cause back to the Commission. The circuit court stated that the Commission erred by giving greater weight to the claimant’s examining doctor than to his treating doctor. On remand, the Commission relied on the claimant’s doctor and awarded him medical benefits in full. The circuit court confirmed the Commission’s decision.
On appeal, the sole issue was whether the circuit court erred in finding that the Commission erred by disregarding the opinion of the claimant’s treating physician.
The appellate court first reviewed the law regarding the level of weight the Commission may assign to a treating physician. The court noted that it could not find any case which stated that, as a matter of law, the Commission must give more weight to a treating physician’s testimony than to the testimony of an examining physician. Instead, the court noted, numerous Illinois courts had held that the Commission may give more weight to a treating physician’s opinion. The court added that it was the Commission’s responsibility to determine what weight to give testimony and to resolve any conflicts in testimony.
Accordingly, the court stated, in the instant case the Commission could determine to assign more weight to the claimant’s examining physician’s testimony. Indeed, the court noted that the examining physician had performed as many tests as he could and had evaluated numerous laboratory tests in forming an opinion on the claimant’s condition. Therefore, the court stated, the Commission’s decision to rely on the examining physician’s opinion was not against the manifest weight of the evidence.
Commission may afford little weight to doctor’s report as it is the Commission’s responsibility to resolve conflicting medical evidence.
McRae v. Industrial Comm’n, ___ Ill. App. 3d ___ (1996)
The claimant allegedly injured her back while working as a "scanner" for Venture. The claimant testified that her duties included repeatedly lifting heavy boxes of merchandise. Approximately one year before she had started working for Venture, the claimant was diagnosed with chronic back syndrome. At that time, the claimant had back problems "off and on" for many years and had received chiropractic treatment for her back and her neck.
The arbitrator found that the claimant sustained an aggravation of a preexisting condition as the result of a work-related repetitive trauma. The Commission vacated the arbitrator’s decision on the basis that the claimant did not sustain an injury causally related to her employment. The Commission stated that the claimant had a long history of back problems and that the medical evidence did not make any reference to a work-related injury until 14 months after the alleged incident.
On judicial review, the circuit court reversed the Commission’s decision. The court stated that the Commission’s decision was against the manifest weight of the evidence because the claimant’s treating surgeon opined that the claimant’s condition was causally related to her work at Venture.
On appeal, the claimant’s employer contended that it is the Commission’s responsibility to judge the credibility of witnesses, and that whether the evidence supports an inference that the claimant did not sustain an accidental injury causally related to her work was a question of fact for the Commission to decide.
The appellate court agreed with the claimant’s employer that the Commission’s decision was not against the manifest weight of the evidence. In reviewing the medical evidence in the case, the appellate court stated that the only evidence of causation was a doctor’s report that stated that the claimant was injured at Venture and that the claimant’s repeated bending "may well have" caused her condition.
The court then explained that the Commission did not err by not giving much weight to the doctor’s statement because, as the Commission stated, the doctor’s statement came 14 months after the claimant’s injury and the doctor’s language was equivocal in that he used the words "may well have" in describing the possibility of a causal connection. Accordingly, the appellate court stated, although the Commission cannot arbitrarily reject medical opinions and uncontradicted testimony of witnesses, it did have the authority to reasonably draw inferences where conflicting evidence existed. The inference that the claimant’s condition was not causally related to her accident at work, the court said, was a reasonable inference given the other evidence in the record.
Two justices dissented from the majority’s opinion. The dissent explained that while it was true that the claimant had experienced low back symptoms and chronic low back syndrome before her accident, there were no medical records or other probative evidence that suggested a prior herniated disc. The dissent stated that the claimant testified that she did not feel low back pain until several months after she started working. Then, upon visiting the hospital, her doctor recommended that the claimant change occupations. The dissent said that the employer did not present any evidence that the claimant’s condition was not causally related to her employment except that she had experienced some back problems prior to her employment. The dissent accordingly reasoned that the evidence clearly proved a causal connection between the claimant’s accident and her herniated disc.
Honorable Michael J. Colwell is a Presiding 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 gratefully acknowledges the assistance of his law clerks, Margaret Graham Tebo and Kimberly D. Fahrbach, in the preparation of this article.