Review of Illinois Workers Compensation

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					        Review of Illinois Workers’ Compensation
                                                 APRIL 2005

Around the Workers’ Compensation Commission
   •   New Personnel
   •   Red Line Cases


Before the Supreme Court of Illinois
   •   Heart Attack Case Ruled Compensable – Appellate Court
       Reversed for Applying “Normal Daily Activity” Limitation

Before the Appellate Court, Industrial Commission
   •   Court Affirms Commission’s Denial of Compensation
       Where Videotape Evidence Showed Petitioner Engaged in
       Heavy Activities
   •   Attorney’s Fees and Penalties Denied Despite 78-Day         The transformation is complete.
       Delay in Payment of Award                                   The Illinois Industrial Commission
   •   Court Awards Benefits for Hip Injury – Aggravation of Pre-   has become the Illinois Workers’
       Existing Condition of Avascular Necrosis                    Compensation Commission in more
   •   Court Affirms Award for Carpal Tunnel Syndrome for Truck     than just the name. The Governor
       Driver Who Attaches Straps to Load                          has changed the name and replaced
   •   Trip and Fall Sustained by Waitress on Newly Installed      Commissioners to make sure that this
       Carpeting Held Compensable – Finding of Causal              Commission is primarily for “workers”
       Connection Not Against Manifest Weight of the Evidence      and not industry. Our Governor fails to
   •   Back Award Reversed. Commission’s Decision Set Aside        realize that employers and carriers should
       as Contrary to Manifest Weight of the Evidence              have rights too and that they provide an
   •   Court Affirms Commission Award of Benefits in Repetitive      important need for the state – JOBS.
       Trauma Case Involving Nursing Assistant with Bilateral
       Carpal Tunnel Syndrome
                                                                   CONTACT INFORMATION
Before the Appellate Court, Non-Industrial Commission
Division                                                           Michael E. Rusin
   •                                                               312.454.5119
       Court Denies Employer’s Sec. 5(b) Lien as Against
       Medical Malpractice Settlement on the Basis of Waiver
                                                                   10 S. Riverside Plaza
Around the Office                                                   Suite 1530
   •   Honors and Awards                                           Chicago, IL 60606
   •   New Associates
   •   Great Case Decisions in the Office                 

                                            April 2005
                                        By Michael E. Rusin


  The first quarter of this year saw the Commission change its status call cycle from 90 days to 60
  days. Instead of cases showing up on the call only three to four times per year, they will now
  show up on the call five to six times per year. With a continuance cycle of only 60 days, the
  parties can request trial dates much more frequently. The Chairman is pushing the arbitrators to
  try more and more cases.

  The Commission schedule continues to include a vacation month for every arbitrator. In the
  past, with a 90-day continuance cycle, all cases that were to be on the call during the vacation
  month were given a 120-day continuance. With the new 60-day cycle, we expected that cases
  over the vacation month would be continued for an extra 30 days, but instead they are being
  continued for an extra 60 days. Therefore, all cases that fall on the status call during a vacation
  month are getting a 120-day continuance. Consequently, if a case shows up on the April call and
  the June call is the arbitrator’s vacation month, the case is being continued to August. This is
  true for both Chicago and downstate cases. Please note that the arbitrators’ vacation months
  vary. Most arbitrators are taking their vacation during the month of August. However, the
  vacation months include May through September, depending on the arbitrator. Please check the
  Workers’ Compensation Commission website to determine the vacation month for each

  New Commissioners

  The Governor made a significant change in Commissioners. The Governor essentially
  terminated Employer Commissioner David Akemann and Employer Commissioner Natalie
  Romo. Commissioner Akemann’s term expired in January 2005. The Governor chose not to
  reappoint him. Commissioner Romo was appointed in October 2004 for a term that was to end
  in January 2007. However, the Governor chose to not submit her name for confirmation by the
  Senate. According to the Commission website, both commissioners “resigned.”

  In their stead, the Governor appointed Attorneys Mario Basurto and Ilonka Munoz Ulrich.

  Commissioner Basurto had no prior workers’ compensation experience and was most recently
  employed as house counsel for Liberty Mutual Insurance Company. Commissioner Ulrich was
  appointed to the Commission after having worked as a petitioner’s attorney and also briefly as a
  defense attorney for Zurich North America Insurance Company.

  No explanation was given by the Governor for the changes and the resignations. This latest
  action completes the Governor’s transformation at the Commission. His actions started with
  terminating all Commissioners by law in July, 2003. He has now replaced all the
  Commissioners that were favorable for employers. Neither of the new appointments have any
  justifiable background as an employer representative.
The current Commission panels are now:

Panel A – Susan Piggott (employee), James DeMunno (public), and Mario Basurto (employer).
Panel B – Barbara Sherman (employee), Paul Rink (public), and Ilonka Munoz Ulrich

Red Line Cases

According to Commission rules, after a case is filed, it can be continued for up to three years
before it goes above the red line. Once a case goes above the red line, it should be set for trial or
dismissed. However, the Commission has been lax in pursuing resolution of older cases. The
Chairman recently held a training session for the arbitrators. They spent a week of training at a
facility near Lake Shelbyville in April 2005. One of the changes demanded by the Chairman
was that the arbitrators resolve red line cases. This means the arbitrators should be pushing
parties to resolve above-the-line cases. The arbitrators were instructed to not continue red line
cases unless a valid reason is given in writing for the continuance. It remains to be seen how
strict the arbitrators will be in forcing the parties to resolve these old cases. The red line cases
are as follows:

3-2-2005 – 02 WC 15000 and older
6-1-2005 – 02 WC 30000 and older
9-1-2005 – 02 WC 45000 and older
12-1-2005 – all 02 cases and older

Please remember that once a case is above the red line, it can automatically be set for trial by
petitioner’s attorney without notice. The arbitrators have stated that the Chairman insists that
continuances be denied if a request is made solely for an employer to get an IME.


Rumors continue to fly over whether or not we will have workers’ compensation legislation this
year. Three months ago I would have bet that we certainly would have revised legislation this
year. The Democrats continue to control both houses of the legislature and we have a pro union
Democratic Governor. The Governor’s Office has spent a fair amount of time talking with labor
groups and employer groups about workers’ compensation changes. Labor has a laundry list of
changes they want made. Many were contained in the previously submitted House Bill 805.
Labor wants higher benefits, increased maximums for wage loss cases and protection for
employees against balance billing by doctors. Back in January 2005, the Governor’s Office
essentially told the parties to agree on new legislation. The clear implication was that if an
agreement couldn’t be reached between the parties, the Governor would draft and submit
legislation for passage.

I don’t expect the parties to agree on legislation. Labor believes they don’t need to negotiate
because they have the votes. However, I really question whether the Governor has the political
power to craft and pass workers’ compensation legislation. Not all Democrats would support

increasing employer costs. There is strong indication that Chicago Mayor Daley would oppose
increasing employer costs that would affect city business and city costs.

Moreover, as in years past, other issues appear to have become significantly more important than
workers’ compensation legislative changes. There will be substantial pressure on the Governor
and the legislature to deal with the large deficits faced by the Chicago Board of Education and
also by the Chicago Transit Authority. Budget deficits will continue to be a significant issue,
and our reform Governor who was going to eliminate cronyism in state government has been
embarrassed by investigations showing that he has awarded loads of jobs and millions in state
contracts to campaign contributors and other friends.

At this juncture, workers’ compensation legislation doesn’t seem nearly as important as all the
other problems faced by the state and the Governor. For this reason, it may again take a back
seat during this legislative session.

Nevertheless, we can’t count it out yet. Even though the legislative session is to conclude at the
end of May 2005, budget delays pulled the legislative session all the way into July last year. I
am certain that the legislature doesn’t want that to happen again this year. I still find it hard to
believe the Legislature would make WC most costly. It is already unreasonably expensive and
too generous. Most states have worked to revise their WC laws to make them fairer, yet we are
considering the opposite.

Neighboring states have not been as foolish as our state has been. Major reforms have now been
enacted in Missouri where Republicans control the legislature and the Governor’s office. The
new legislation attacks repetitive trauma cases and restricts compensability to cases where the
job duties are the “prevailing” cause of the injury. The new law redefines “accident” to include
only events that are “an unexpected traumatic event or unusual strain identifiable by time and
place of occurrence producing at the time objective symptoms of an injury, caused by a specific
event during a single work shift.” It also disqualifies workers from benefits or reduces benefits
for those who engage in “post-injury misconduct” or those who violate safety regulations. It
reduces attorney fees and creates a review process to eliminate bad administrative law judges.
Missouri clearly and intelligently recognizes the importance of a fair system and the need to
attract not push away businesses. In addition to WC reform, the Missouri legislature also placed
new limits on civil lawsuits and caps on medical malpractice awards.


Heart Attack Case Ruled Compensable – Appellate Court Reversed for Applying “Normal
Daily Activity” Limitation

Twice Over Clean, Inc. v. Industrial Commission, Docket No. 98748, filed March 24, 2005.

This decision ends a tortured piece of litigation which dated back to 1997. Petitioner was
employed as a laborer for respondent and was assigned an asbestos removal job. On January 2,
1997 while working he suffered chest pains. According to the listed facts, he was performing
heavy labor at the time. After finishing work he went to the hospital where he was diagnosed
with an acute myocardial infarction.
He filed a case with the Commission. He testified that he helped carry 500-700 bags of asbestos
weighing 40-50 pounds each down four flights of stairs. While performing this work, he
developed chest pains. When petitioner went to the emergency room late that night, he reported
developing chest pains while lifting.

He had a coronary angiogram which revealed a 90% obstruction in the right coronary artery. He
was treated with an angioplasty. His treating doctor testified that he had a very significant
occlusion. He testified that petitioner’s work activities could have been a causative factor in his
myocardial infarction. Respondent presented a medical expert who opined that petitioner’s work
activity was not a factor in his myocardial infarction. The arbitrator ruled the case compensable.
The Commission affirmed, with one commissioner dissenting. The circuit affirmed, but the
Appellate Court reversed. The Appellate Court felt that petitioner’s pre-existing condition was
so severe that he was “a heart attack waiting to happen” and that he could have suffered a heart
attack even at rest. The Appellate Court applied the “normal daily activity” exception and
denied the case.

Petitioner appealed to the Supreme Court and the Supreme Court instructed the Appellate Court
to re-evaluate the case based on the Supreme Court’s ruling in Sisbro. The Appellate Court
reconsidered its decision and again denied the case. That decision was a surprise considering the
fact that the Supreme Court essentially ruled in Sisbro that there was no normal daily activity
exception in Illinois.

Not surprisingly, the Supreme Court reversed the Appellate Court decision. The Supreme Court
noted that in Sisbro, it rejected the argument that the “normal daily activity” exception bars
recovery when the claimant’s physical condition has so deteriorated that the condition of ill-
being could have been produced by normal daily activity, despite a casual connection between
the work and the condition. The court noted that in Sisbro, it held that “whether any normal
daily activity is an overexertion” or whether the “activity engaged in presented risks no greater
than those to which the general public is exposed” are matters to be considered in determining
whether a sufficient causal connection exists between the injury and the employment.

After considering the evidence in this case, the court found that the Commission’s decision was
not against the manifest weight of the evidence. The court found that petitioner’s testimony and
the testimony of his treating doctor were sufficient to justify an award. The court ruled the case
compensable based on a manifest weight standard.

Comment: This case and the Supreme Court’s prior decision in Sisbro, Inc. v. Industrial
Commission, 207 Ill.2d 193 (2003), severely limit the employer’s ability to defend cases based
on pre-existing conditions. Case law still exists which allows employers to deny liability in
cases where an individual has a significant pre-existing condition. However, if there is sufficient
evidence to justify a finding of a causal connection between the work activities and an
aggravation or acceleration of the pre-existing condition, the case will be considered
compensable. Employers must not only prove that the claimant suffered a pre-existing condition
but further that the work activities engaged in by the claimant posed no significant risk greater
than that to which the general public is exposed on a regular basis. In this case, the Commission

was compelled to rule the case compensable because of petitioner’s testimony that he was lifting
and carrying hundreds of heavy bags down several flights of stairs.


Court Affirms Commission’s Denial of Compensation Where Videotape Evidence Showed
Petitioner Engaged in Heavy Activities

Robert Ross v. Entenmann’s Bakery and Industrial Commission of Illinois, No. 1-03-2999WC,
filed October 13, 2004.

Petitioner filed an application alleging an accident date of April 4, 1996. Petitioner testified that
he injured his back at work while poking in a trash compactor. Petitioner promptly reported that
alleged accident but continued to work. He sought medical treatment from Dr. Bartucci, an
orthopedic surgeon, on April 25, 1996. He claimed a work injury three weeks earlier. X-rays
showed degenerative changes and petitioner was diagnosed with a back strain. Petitioner was
released for light work and continued to perform work duties until he underwent an unrelated
surgery on June 27, 1996.

On May 17, 1996, the employer videotaped petitioner raking gravel, attempting to push and/or
lift a stranded motorist’s vehicle, scooping gravel, driving a van, and lifting a large concrete slab.

Also on May 17, 1996, petitioner sought further treatment with Dr. Bartucci and complained of
continued back pain. Dr. Bartucci prescribed an MRI. That test was done on June 14, 1996 and
showed a bulging disc at L3-L4. Dr. Bartucci prescribed physical therapy.

Dr. Bartucci re-examined petitioner September 3, 1996 and petitioner complained of back pain.
Dr. Bartucci authorized petitioner off work. Petitioner was off work for six months. He had a
myelogram done February 14, 1997 and was released for light duty.

After a hearing before the arbitrator, petitioner was awarded TTD and medical. The employer
appealed and the Industrial Commission reversed. The Commission found that petitioner failed
to prove that he sustained accidental injuries which arose out of and in the course of his

Petitioner appealed to the circuit court and the denial was affirmed. Petitioner appealed to the
Appellate Court, and the denial was again affirmed. Petitioner claimed that his case was
supported by the testimony of Dr. Bartucci, who stated on direct examination that his condition
of ill-being was causally related to the work injury. However, the court noted that on cross-
examination following a review of the videotape, Dr. Bartucci testified that he would not be able
to state whether the work accident on April 4, 1996 or petitioner’s subsequent activities that he
engaged in on May 17, 1996 caused petitioner’s continuing back pain.

Respondent arranged for an IME with Dr. Charles Mercier. Dr. Mercier found a normal
examination October 25, 1996 and opined that petitioner did not need further medical treatment.
In view of Dr. Mercier’s report and Dr. Bartucci cross-examination admissions, the Appellate
Court found that the denial was appropriate.

Comment: This is an excellent case for employers and a surprising one for petitioner to have
appealed so far in view of the extremely damaging evidence. This is a case where the
surveillance evidence was very strong and was able to overcome even the testimony of the
treating physician. Here, petitioner reported a work injury that was at best questionable.
Following petitioner’s alleged work injury, he didn’t require any medical treatment nor did he
lose any time from work. He sought treatment for degenerative changes, but it appears he really
sought treatment in order to justify an illegitimate claim. It was wise for the employer to bolster
its surveillance evidence with a qualified medical opinion. The Commission is reluctant to deny
a case based solely on good surveillance evidence.

Attorney’s Fees and Penalties Denied Despite 78-Day Delay in Paying Award

Armour Swift-Eckrich v. Industrial Commission, No. 2-04-0508WC, filed February 2, 2005.

Petitioner filed a claim against the employer alleging an accident date of January 15, 1998. The
case was tried before an arbitrator and petitioner was granted an award on November 27, 2000 in
the amount of $30,000.00. Neither party filed an appeal and the decision became final 30 days
later. However, the employer did not pay the award.

On March 14, 2001, petitioner filed a petition for penalties and attorney’s fees for non-payment
of the award. On that same date, the employer sent via overnight delivery a draft in full payment
of the award. The payment was received March 15, 2001. The employer paid the $30,000.00
award plus $300.00 in interest.

Petitioner did not withdraw the petition for attorney’s fees and penalties. At a hearing before the
Commission, the employer contended that the delay in payment was due to personnel changes at
the third party administrator. The employer presented testimony that all of the original staff
handling the employer’s account as well as a newly hired examiner had recently quit working at
the third party administrator.

On August 8, 2001, the Commission entered an order denying the penalty petition.               The
Commission found that the delay in payment was due to the personnel changes.                   The
Commission noted that the employer had voluntarily added interest to the award.                The
Commission found that the delay in payment was not unreasonable and vexatious.

Petitioner appealed and the circuit court reversed. The circuit court instructed the Commission
to award penalties and attorney’s fees. Upon remand, the court awarded penalties of $15,000.00
and attorney’s fees of $6,000.00. The employer appealed, and the Appellate Court, in a 3-2
decision, reversed. The majority ruled that the delay in payment (78 days) was not sufficient by
itself to justify an award of penalties and attorney’s fees. The Appellate Court ruled that the
imposition of §19(k) penalties and attorney’s fees was discretionary. The court noted that the
penalty and attorney fee sections of the Act are severe ones and should be imposed only where
the Commission finds the employer’s conduct to be unreasonable and vexatious. In this case, the
fact that the delay was 78 days was insufficient to mandate the award where the employer proved
that the delay was the result of personnel changes.

The two-member dissent felt that the employer’s excuse was insufficient. They agreed with the
circuit judge and would have awarded penalties and attorney’s fees.

Comment: This is a very fortunate decision for this employer and employers. The general rule
of thumb has always been that decisions must be paid within 60 days or else penalties will be
awarded. In this case, the Commission and the courts found the “78-day delay” to be not
unreasonable and vexatious. In fact, there was not a 78-day delay, there was a 108-day delay
from the date of the decision to the date of payment. This was an extremely long period of time
and sets a new standard for employers at the Appellate Court level. This is definitely beneficial
to employers in arguing the defense to a delay in payment case. The case decision is a tenuous
one, though, since only three members of the Appellate Court ruled in the employer’s favor. It
would be reckless to rely on this decision to justify delay in payment. I strongly recommend that
decisions be paid within 60 days. It is not worth risking a penalty of 70% of the award (50% in
§19(k) penalties plus 20% in attorney fees). The justification for the delay here was weak and
will not likely be a successful argument before the current Commission.

Court Awards Benefits for Hip Injury – Aggravation of Pre-Existing Condition of
Avascular Necrosis

Boyd Electric v. William Dee and Industrial Commission, No. 1-04-1986WC, filed 3-9-05.

Petitioner was employed by respondent as a journeyman electrician in July 2000. He performed
construction work which required a variety of different activities including lifting and carrying
equipment, installing electrical outlets and overhead lights, cutting and bending conduit pipes,
and climbing up and down ladders. Petitioner testified that on March 26, 2001, he encountered
an 80-100 pound spool of wire. He reported that he lifted it and felt a sharp pain in his abdomen
and left leg.

He sought treatment with his family doctor the following day and complained of left upper leg
pain for the past month. Petitioner reported that his symptoms worsened at night and improved
during the day. Petitioner reported that he worsened after lifting an 80-pound object at work and
was barely able to walk the last few days.

Petitioner was referred to an orthopedic surgeon, Dr. Luke. Dr. Luke took x-rays and ordered an
MRI. The MRI showed avascular necrosis in both hips. Dr. Luke diagnosed petitioner with an
adductor strain. He diagnosed avascular necrotic changes in both hips which he felt were not
related to a work injury. Dr. Luke issued a note stating, “I am not convinced, nor do I believe his
avascular changes are secondary to a work-related injury.”

Dr. Luke referred petitioner to a hip specialist, Dr. Rosenberg. Dr. Rosenberg examined
petitioner and diagnosed avascular necrosis. He concluded that petitioner’s condition of
avascular necrosis was not caused by his work injury but “certainly was exacerbated by the
injury he sustained on May 26, 2001.”

The employer retained Dr. William Dobozi, a highly qualified orthopedic specialist, who
examined petitioner, reviewed records and films and opined that petitioner’s condition of
avascular necrosis was not caused or aggravated by his work injury.

The case was tried before an arbitrator who found the matter compensable. The arbitrator
adopted the opinion of Dr. Rosenberg and rejected the opinions of Dr. Luke and Dr. Dobozi.

The employer appealed but the Commission affirmed, with one commissioner dissenting.
Respondent filed an appeal to the circuit court, which affirmed. Respondent filed an appeal to
the appellate court, and the appellate court also affirmed. The appellate court ruled that the
Commission’s decision was supported by the opinion of Dr. Rosenberg. The court ruled that the
Commission’s decision was not contrary to the manifest weight of the evidence.
Significantly, the court was willing to affirm the Commission based on Dr. Rosenberg’s opinion
that petitioner’s avascular necrosis was “exacerbated” by the work injury. The court would not
overturn the case based on the contrary testimony of Dr. Dobozi, the examining physician, and
Dr. Luke, the initial treating physician.

Comment: This case again highlights the difficulty employers have in disputing pre-existing
conditions. The rule of law has always been that an aggravation of a pre-existing condition is
compensable. However, an exacerbation (a temporary increase in symptomology without
change in underlying disease) is not compensable. This case would support an argument that not
only is an aggravation a compensable event, but also an exacerbation of a pre-existing condition
is also compensable.

It is clear that petitioner suffered from a pre-existing condition of avascular necrosis. It is clear
that this was a progressive disease and that petitioner needed surgery as a result of his personal
condition. The Commission should have adopted the opinion of Dr. Luke, petitioner’s first
orthopedic surgeon, especially in view of admission by petitioner the day after the accident that
he had been having problems for a month. The evidence presented by respondent here was
strong. However, the court ruled it was insufficient to overcome the manifest weight of the
evidence standard. It is unclear from the decision, but the employer in this case may have to pay
for not only the left hip replacement but also the right hip as well.

Court Affirms Award for Carpal Tunnel Syndrome for Truck Driver Drives a Manual
Transmission Truck and Who Attaches Straps to Secure Loads

Edward Hines Precision Components v. Industrial Commission, No. 2-04-0608WC, filed 3-24-

Petitioner filed a claim for carpal tunnel syndrome alleging an accident date of May 14, 2001.
Petitioner testified that he was employed by the respondent as a truck driver. Petitioner drove an
18-wheel flatbed truck with a manual transmission. He shifted gears with his right arm and used
his left arm to steer. He delivered trusses that were secured to the flatbed truck with an average
of 5-10 straps per load. Petitioner estimated that he tightened 35-40 straps per day.

Petitioner received medical treatment and was diagnosed with bilateral carpal tunnel syndrome,
worse on the left side. Surgery was recommended for the left wrist. Petitioner’s treating doctor
testified that petitioner’s job duties could contribute to his carpal tunnel syndrome. The doctor
testified that repetitive forceful gripping could contribute to carpal tunnel syndrome.

Respondent presented the testimony of Dr. Michael Vender, a hand surgeon. He reviewed
petitioner’s job description and a job video along with the medical records. He performed an
examination. He concluded that petitioner had carpal tunnel syndrome, but it wasn’t related to
his job duties. Dr. Vender noted that petitioner’s forceful activities were done intermittently and
not persistently. He felt petitioner’s carpal tunnel syndrome was more likely caused by his
obesity and his history of smoking.

After a hearing before the arbitrator, the case was denied. The arbitrator found that petitioner’s
employment was not a causative factor in his carpal tunnel syndrome. The arbitrator noted that
petitioner spent 90% of his shift operating a truck and only intermittently strapping down loads.

Petitioner appealed and the Industrial Commission reversed. The Commission found the case
compensable, relying on the testimony of the treating doctor.

The employer appealed and the appellate court affirmed. The appellate court found that there
was no legal requirement that a certain percentage of the work day be spent on a task to support a
finding of repetitive trauma. The critical issue in this case, the court found, was one of
causation. The court recognized the conflicting medical evidence between the testimony of Dr.
Vender and the treating physician. The court found that the testimony of the treating physician
was sufficient to justify the award. The court noted, “The resolution of this case was essentially
based on the Commission’s evaluation of the credibility of the witnesses.” The court found that
the Commission’s decision wasn’t contrary to the manifest weight of the evidence since the
decision was supported by the testimony of the treating doctor. Therefore, the case was

Comment: This decision highlights the difficulty employer’s face in defending repetitive trauma
cases. In this case, petitioner claimed that he had repetitive job duties, but in fact, his job duties
weren’t that repetitive at all. At most he was tightening straps 40 times a day. If you break this
down, he was doing it approximately once every 12 minutes. That’s hardly very repetitive.
Nevertheless, petitioner was using his hands for a forceful activity at least intermittently. That
was enough for the treating doctor to say the carpal tunnel syndrome was caused by the work
duties. That was enough for the court to confirm the Commission.

The problem in all of these cases is for the employer to identify an alternate cause. Here, the
employer couldn’t identify an alternate cause for the carpal tunnel syndrome. The Commission
continues to refuse to believe that carpal tunnel syndrome can be idiopathic. They need to find a
cause other than the work duties in order for the employer to win. In this case, it was insufficient
for Dr. Vender to state that the condition could have been caused by petitioner’s obesity or his
past history of smoking. The Commission is very reluctant to attribute carpal tunnel syndrome to
obesity despite the fact that obesity creates pressure on the carpal ligament. This case doesn’t
make it any harder to defend carpal tunnel cases, but it certainly doesn’t make it any easier.

Trip and Fall Sustained by Waitress on Newly Installed Carpeting Held Compensable –
Finding of Casual Connection Was Not Against Manifest Weight of the Evidence

Tinley Park Hotel and Convention Center d/b/a Holiday Inn v. Industrial Commission, No. 1-04-
1307WC, filed 3-30-05

Petitioner was employed by respondent as a waitress and hostess at a restaurant. She worked for
the employer for approximately 20 years and had worked at this particular restaurant for a year
prior to the accident. Two weeks prior to her injury, the employer installed carpeting at the
restaurant. Prior to that, the flooring was painted concrete. After the carpeting was installed,
petitioner observed people tripping on the carpet. On September 22, 2001, petitioner was
working as a hostess. As she was walking some customers to their seats in the rear of the
restaurant, she tripped and fell. Petitioner claimed that she tripped on the carpet. Petitioner
claimed that her right foot got stuck on the carpet and she fell. Petitioner denied that she tripped
over her own feet. Petitioner broke her wrist and arm. On cross examination, petitioner denied
any defect in the carpet. Petitioner brought in a co-worker to testify that she had seen other
people stumble on the carpet.

The employer brought in a chief engineer who testified that there were no defects in the carpet.
The engineer stated that petitioner reported that her foot just basically stopped on the carpet and
she went down. The security director for the employer also testified. He saw the area where
petitioner fell and noticed no defects.

After a hearing, the arbitrator found that the case was not compensable. The arbitrator found no
risk of injury connected with petitioner’s employment nor any risk to petitioner greater than that
to which the general public is exposed. There was nothing about the carpet which made it risky.
The arbitrator found that walking on carpeting is an activity of daily life.

Petitioner appealed and the Industrial Commission reversed with one commissioner dissenting.
The Commission found that it was significant that the employer had changed the flooring. The
Commission found that the texture of the carpeting would be consistent with a rubber sole
sticking to the carpeting. Therefore, petitioner had an increased risk of injury and her accident
was compensable.

The employer appealed and the appellate court affirmed the award. The court analyzed the
Caterpillar Tractor decision. The court recognized that in Caterpillar, the court denied
compensation to an employee who stepped off a curb at work and twisted his ankle. The court
found that the risk of traversing curbs is common to the general public and therefore not
                                           - 10 -
The court refused to analyze this case as a question of law. Instead, the court viewed the case as
a question of fact and found that the Workers’ Compensation Commission’s decision was not
contrary to the manifest weight of the evidence. The court found that there were conflicting facts
as to whether or not the carpeting was defective. The court noted that petitioner presented
evidence that the carpet was new and that other people had tripped on the carpet.

Comment: This is an incredibly bad decision from the court. It of course stems from a bad
decision from the Commission which is a reflection of the change in commissioners. The
arbitrator made the correct decision in this case. This case wasn’t compensable. Petitioner
tripped and stumbled on carpeting. That’s a common occurrence on any type of carpeting.
Walking on carpeting cannot and should not be considered a risk peculiar to employment. All
members of the general public walk on carpeting. Carpeting isn’t inherently dangerous.

The court should have viewed this case as a Caterpillar case. Although the court considered
Caterpillar, it distinguished the case because petitioner presented evidence that other people had
tripped on the carpet. The fact is that people trip on carpeting constantly. There was no risk here
peculiar to the carpeting. There was no evidence that the carpeting was defective. In fact, all the
evidence showed that the carpeting was simply normal carpeting. The court should have
reversed the Industrial Commission and reinstated the decision of the arbitrator. However, it did
not and the decision was unanimous. There is little likelihood that this case will make it up to
the Supreme Court.

Back Award Reversed - Commission’s Award of Benefits Set Aside as Contrary to
Manifest Weight of the Evidence.

Chicago Messenger Service v. Industrial Commission, No. 1-04-1478WC, filed 3-30-05.

Petitioner was employed by respondent as a delivery driver. He worked on September 11, 2001.
He testified that while working, he lifted a 45-pound package and felt a clicking in his lower
back. He testified that on the morning of September 12, 2001, his back was still hurting. He
sneezed and felt severe low back pain.

He testified that on September 12, 2001, he reported the accident to his supervisor, Paul Korzen.
He also testified that he reported the accident to a dispatcher, Tom Ruiz. Petitioner testified that
he worked September 12, 2001 with a friend, Mehir Sahabi, and the friend did all the driving and

Petitioner first sought medical treatment four days later on September 15, 2001 in the emergency
room of Christ Hospital. He gave a history of injuring his back at work the prior Tuesday lifting
heavy boxes. Petitioner was diagnosed with a lumbar strain and referred to a clinic for follow-

Petitioner didn’t seek further medical treatment until returning to the emergency room October
16, 2001. On this occasion, he was referred to Midwest Orthopedics. Petitioner subsequently
                                              - 11 -
was seen by Dr. Lim, an orthopedic surgeon, October 18, 2001. Petitioner gave a history of a
work injury September 11, 2001. He saw other doctors and also reported a work injury
September 11, 2001.

However, contrary to petitioner’s testimony, Paul Korzen testified that he saw petitioner
September 12, 2001 and petitioner complained of back pain following an incident that morning
where he was drinking coffee and sneezed. Tom Ruiz testified that he heard a conversation
between petitioner and Korzen on September 12, 2001 where petitioner reported that he was
drinking coffee and sneezed and his back went out. Both witnesses denied that petitioner
reported any work injury that had allegedly occurred on September 11, 2001. This testimony
was further confirmed by two other witnesses, Tony Lopez and Milton Buzil.

Petitioner’s friend, Mehir Sahabi, testified that he drove with petitioner on September 12, 2001.
Sahabi didn’t testify that petitioner injured himself September 11, 2001 at work.

After a hearing before the arbitrator, the arbitrator ruled that petitioner’s claim was compensable.
The arbitrator stated that petitioner had little credibility because of the conflicting testimony, but
the arbitrator relied on the consistent medical records to support the finding that petitioner
sustained an accidental injury.

The employer appealed and the Industrial Commission affirmed, with one commissioner
dissenting. The dissenting commissioner found that petitioner should be denied compensation
for failing to prove an accidental injury.

Respondent appealed and the circuit court affirmed. Respondent appealed to the appellate court
and the appellate court surprisingly reversed. The appellate court ruled that the Commission’s
decision was contrary to the manifest weight of the evidence. The court found that the
Commission’s decision was inconsistent because it found that petitioner was credible when he
gave his medical histories to the doctor but not credible when he testified at trial about the
history he gave to the witnesses. The court found the Commission’s decision was inconsistent
because petitioner either had to be credible or not credible. He couldn’t be credible in one
circumstance and not credible in another. The court ruled,

       “The Commission’s findings here defy logic. It found that the claimant’s
       testimony, under oath, was not credible, but the statements he made to the medical
       providers were truthful, even though not given under oath. Testimony under oath
       and subject to cross-examination is the benchmark of credibility. If the claimant
       did not testify truthfully under oath, then he had no credibility.”

The court reversed the award in its entirety and found that petitioner failed to prove entitlement
to any benefits at all.

Comment: This unanimous decision denying benefits is a refreshing one. The court’s decisions
overall have been very unfavorable. It is good to see that they still are willing to look at the
evidence and make rulings on occasion that the Commission decision is contrary to the manifest
weight of the evidence. This willingness must be increased since there are fewer favorable
commissioners than ever. The dissenting commissioner here was Commissioner Stevenson, my
                                            - 12 -
former law partner. He was terminated by the Governor in July 2003 because he was too
employer-oriented. This appellate court decision certainly shows that Commissioner Stevenson
was correct in his analysis of the facts of this case. This decision gives hope and encourages
employers to continue to fight fraudulent cases.

It is good to see that the Court can see that some of the Commission’s decisions “defy logic.”
The Court should reach that conclusion more often.

Court Affirms Commission Award of Benefits in Repetitive Trauma Case Involving
Nurse’s Assistant with Bilateral Carpal Tunnel Syndrome

Kishwaukee Community Hospital v. Industrial Commission, No. 2-04-0512, filed 3-14-05.

Petitioner was employed by respondent as a nursing assistant. She had worked in that position
for the employer from 1969 until January 24, 2001. She was 55 years old and was 5’2” in height
and weighed 112 pounds. Petitioner testified that she was often assigned elderly patients, many
of whom had suffered strokes or had limited use of their limbs. They weighed between 150 and
250 pounds. Her job duties included changing sheets, bathing patients, moving patients from
beds to chairs and commodes, and pushing patients on gurneys. She usually worked with six
patients per shift.

On January 24, 2001, petitioner went to the emergency room complaining of stiffness, tingling
and soreness in both of her hands. She reported that she’d had symptoms for six or seven
months prior to that time. She was diagnosed with chronic bilateral wrist pain and bilateral
carpal tunnel syndrome. She sought treatment with an orthopedic surgeon. She was diagnosed
with bilateral carpal tunnel syndrome and degenerative joint disease in her left carpometacarpal
joint. Petitioner underwent bilateral carpal tunnel releases and a left thumb basilar joint
arthroplasty. Petitioner also had cubital tunnel syndrome and had left elbow surgery.
Petitioner’s treating surgeon opined there was a causal connection between her employment
duties and her condition of ill-being in her hands.

The employer retained a medical expert who examined petitioner, reviewed petitioner’s medical
records and analyzed her job duties. He found no causal connection between her condition of ill-
being in her hands and her job duties. He admitted that repetitively lifting 200-pound patients
could cause carpal tunnel syndrome. However, he did not believe petitioner’s job duties required

The arbitrator found that petitioner sustained accidental injuries and he awarded almost two
years of TTD and all of petitioner’s medical bills. The Industrial Commission affirmed and the
employer appealed to the circuit court. The circuit court affirmed and the employer appealed to
the appellate court. However, the appellate court confirmed the decision of the Industrial

The employer argued that petitioner did not sustain repetitive trauma. The court noted with
significance that petitioner had worked for the employer for over 30 years. The employer also
                                              - 13 -
argued that even if the carpal tunnel syndrome was causally related to the accident, the
carpometacarpal problems were not. The court found the delay in diagnosing and treating the
carpometacarpal problems was not a bar to recovery. The court noted that the carpal tunnel
symptoms may have masked petitioner’s other pain generators. The court rejected the
employer’s argument about accident, noting that petitioner’s job required her to engage in heavy
and repetitive lifting activities moving large and immobile patients.

The employer also sought reversal seeking to strike the testimony of Dr. Glasgow, the treating
physician. Dr. Glasgow never issued a report as to his opinion on causation prior to his
deposition. The court rejected the employer’s argument. The court noted that the doctor’s
records contained details about his treatment of petitioner’s conditions. Moreover, petitioner’s
attorney notified respondent that he intended to have Dr. Glasgow testify on the issue of
causation. The fact that Dr. Glasgow didn’t issue a report prior to the deposition was insufficient
to bar his testimony. The court distinguished this case from the Ghere case wherein the
physician’s testimony was barred because no written report had been issued and the doctor had
not treated petitioner for the condition upon which he was asked to give an opinion.

Comment: This decision is another bad one for employers on the issue of repetitive trauma. The
courts have not favored employers in repetitive trauma cases. The legal standard of causation is
too low and must be changed legislatively. The claimant only needs to prove that his job duties
were a cause of his condition. He doesn’t need to show that the job duties are the primary cause
or even the proximate cause.

Moreover, the court has been reluctant to overturn any Commission decision even where the
evidence shows the claimant’s job duties are not very repetitive. In this case, it’s clear that
petitioner did assist in the moving of patients, but she certainly didn’t do it continuously during
an eight-hour day.

Unfortunately, we have no definition of what repetitive means. It appears from the court
decisions that provided an activity done more than once in a day can be considered repetitive.
Certainly, the court’s sympathies were with the claimant who worked for the employer for over
30 years.


Court Denies Employer’s Sec. 5(b) Lien As Against Medical Malpractice Settlement on the
Basis of Waiver

Charles David Borrowman v. Dr. Rebeccah H. Prastein et al., No. 4-04-0559 (4th District) filed
March 28, 2005

Petitioner suffered a work-related injury April 7, 1995 when he fell and fractured his heel. He
received treatment from Dr. Prastein who repaired the fracture. Subsequently he developed a
bone infection and became much worse. More surgeries were performed and petitioner was left
with an injured foot along with multiple other systemic problems as a result of the infection,
including hearing loss, dizziness and balance problems.
                                              - 14 -
Petitioner was given a release to return to regular work as a result of the foot injury. He never
went back to work because of the other medical conditions. A dispute existed between petitioner
and respondent as to whether he could go back to work and whether the conditions were related
were related to the accident. On January 7, 2000, petitioner and respondent settled the pending
workers’ compensation case for $230,000.00.

Petitioner filed the medical malpractice case in October, 1997 and it was pending at the time of
the workers’ compensation settlement. The malpractice case was settled in July 2001 for
$750,000.00. Petitioner filed a petition to adjudicate the lien and the parties engaged in
discovery over the next two years. A hearing was held before the trial judge on January 8, 2004.
The parties presented evidence as to how much of the workers’ compensation settlement was
attributed to the medical malpractice. Petitioner claimed that he would have gotten the same
workers’ compensation settlement irrespective of the malpractice because of the severity of the
foot injury. Respondent claimed that the WC settlement was much higher as a result of the
malpractice. The trial judge granted a lien recovery of $175,973.00.

Both parties appealed to the appellate court. Petitioner claimed that respondent was not entitled
to a lien at all. Respondent claimed that it was entitled to a higher lien amount.

The court stated that the pivotal issue in the case was whether respondent was entitled to a lien at
all when it agreed to settle with petitioner knowing that a medical malpractice case was pending.
The court found that the workers’ compensation settlement contract barred the lien claim. The
court stated that the settlement contract entered into between the parties did not specifically
reserve the employer’s lien rights. The court ruled that since the employer knew about the
medical malpractice case and settled the workers’ compensation case without specifically
retaining the lien rights, that it waived its lien rights.

Comment: This is an outrageous and ridiculous ruling. The settlement contract entered into
between the parties did not waive the employer’s lien rights. It only waived rights under §§8(a)
and 19(h). At the time the parties settled the workers’ compensation claim; neither petitioner nor
respondent knew whether or not the medical malpractice case would be successful. The medical
malpractice case might have wound up in a judgment for the doctor. The fact that petitioner and
respondent agreed to a settlement in the workers’ compensation case in no way affected the civil
case. It is clear from the terms of the settlement that neither party intended for the employer to
waive its lien.

This decision is similar to the trial court’s decision in the case of Kozak v. Moiduddin, 294
Ill.App.3d 365, 689 N.E.2d 217 (1997) which is cited by the court. In that case, the trial court
denied the lien and the appellate court reversed and granted the lien to the employer. The same
thing should happen here. This case should get appealed to the Supreme Court and the Supreme
Court should overrule this improper ruling.

In the interim, employers must protect themselves. We have modified our settlement terms and
now we specifically retain an employer’s §5(b) lien rights in every case. We strongly
recommend that all settlement contracts be drafted to specifically retain the employer’s lien
                                            - 15 -

Three partners in our office Michael E. Rusin, Stephen J. Friedman, and John A. Maciorowski
have been named Illinois Super Lawyers by Chicago Magazine. A special section of the May
2005 edition of Chicago Magazine identifies the Illinois Super Lawyers. It is a nice honor and
we appreciate the recognition.


We are pleased to announce the addition of three new associates in our Chicago office, two of
whom are working in our workers’ compensation department and one in our civil department.
They are Joseph Basile, Judith Nash, and William Harrington.

Joe Basile received his B.S. from St. Louis University in 1976, and his J.D. with distinction from
John Marshall Law School in 1979. He is admitted to Federal U. S. District Trial Bar and the U.
S. Court of Appeals, 7th Circuit. Judy Nash received a B.G.S. degree from Roosevelt University
in 1977, the J.D. from IIT/Chicago Kent College of Law in 1980. She also is admitted to U. S.
Court of Appeals, 7th Circuit and U. S. District Court, Northern District of Illinois. Both Mr.
Basile and Ms. Nash have extensive experience defending WC cases in Illinois.

Bill Harrington graduated from Indiana University in 1987 and from Thomas M. Cooley Law
School in 1991. A former associate of the firm, we are pleased to welcome him back to the


Rob Sabetto obtained an excellent decision for EMC Insurance Companies in the case of David
Martin v. Lively Construction, 01 WC 50479. This case involved a claimant who was alleging
chemical burns from exposure to concrete. We disputed the case in its entirety and the arbitrator
denied the case. Petitioner appealed and the Industrial Commission reversed and awarded
penalties and attorney’s fees. We appealed and Judge Gardner in the Circuit Court of Cook
County reversed. He reinstated the arbitrator’s decision and denied compensation. Petitioner
has appealed to the appellate court. We hope the appellate justices see it the same way as the
circuit court judge.

Dan Arkin obtained an excellent decision for State Farm Insurance in the case of Tommy
Williams v. Racz-Littwin Construction, 05 IWCC 116. Mr. Arkin had tried that case before
Arbitrator Lee disputing accident. We brought in several witnesses and Arbitrator Lee ruled that
petitioner failed to prove accident. Petitioner appealed to the Industrial Commission, but Panel
A of the Commission affirmed the denial. Importantly, the insured cooperated and provided
valuable testimony at trial.

Ken Marshall obtained an excellent decision for Broadspire and Jewel Food Stores in the case
of Christine Vacha v. Jewel Food Stores, 05 IWCC 125. This was a long battle for Ken. The
accident occurred October 27, 1992. The case wasn’t tried until 2003 after petitioner had been
off work for 10 years claiming fibromyalgia. The arbitrator awarded six months of TTD but
                                           - 16 -
denied permanent partial disability. Petitioner appealed to the Industrial Commission and the
Commission affirmed the denial of permanent disability. The case could have been a huge one.
Ken really put a lot of effort into this case and it paid off. After 10 years, Ken is having a hard
time believing the case is finally over.

Steve Dyki got a good result for AIG in the case of Charles McCrone v. Verizon, 03 WC 48507.
The case involved an admitted back injury where petitioner claimed two unoperated herniated
discs. The attorney was demanding 9% man as a whole. We offered 7.5% man as a whole to
settle, but petitioner wouldn’t accept it. We disputed liability for one of the alleged herniated
discs, and the arbitrator granted an award of 5% loss of use of the man as a whole.

Joe Marciniak also obtained a fine decision for AIG Insurance in the case of Michael Kinzler v.
Avenue, Inc., 04 WC 48092. This case was tried before Arbitrator Fratianni with petitioner
claiming an injury September 17, 2004. We presented a witness who was with petitioner that
day and testified that petitioner didn’t have any accident. We also presented a foreman. We
showed that petitioner was doing a home remodeling job which likely was the cause of his
injury. The arbitrator found petitioner failed to prove accident and denied compensation in its

Rob Sabetto got a zero decision from Arbitrator Giordano for Wal-Mart in the case of Donna
Robb v. Wal-Mart Stores, 00 WC 62980. Although petitioner claimed an injury of May 27,
1999, we proved many inconsistencies between petitioner’s testimony and the medical evidence.
The arbitrator found no accident and no causal connection.

Greg Rode obtained a favorable decision from Arbitrator Andros on behalf of State Farm
Insurance in the case of Krzysztof Zdeb v. Hintz Electric, 03 WC 41554. This case involved an
undisputed accident where petitioner, an electrician, fell and fractured his right wrist. He had a
two-bone wrist fracture and a TFCC tear. He subsequently developed shoulder complaints and
demanded additional compensation for the right arm along with medical treatment. The
arbitrator found that petitioner failed to prove a causal connection between the accident and the
right shoulder injury. He awarded only 40% loss of use of the hand and denied compensation for
the right shoulder. We obtained an overpayment credit for TTD of over $3,000.00.

Mark Rusin obtained an excellent decision from Arbitrator Kane denying compensation in the
case of Robert Habasinski v. Westfield Ford, 04 WC 35031. This decision favored Farmers
Insurance when Mark proved that the accident arose out of horseplay rather than a true work

Mark Rusin also obtained an excellent decision for Safeco Insurance in the case of Greg Laveau
v. T&M Awning, 05 IWCC 231. This was a complicated case where petitioner suffered a back
injury that was accepted and had back surgery. However, we contended petitioner exceeded his
choice of doctors. Petitioner further had inconsistencies during medical appointments. He
claimed that he couldn’t go back to work and we faced a long-term TTD exposure. However,
although petitioner claimed over seven years of TTD, the arbitrator awarded only 39 3/7 weeks.
Petitioner appealed to the Industrial Commission and the Commission affirmed.

                                              - 17 -

It took him two years, but Democratic Governor Blagojevich has now completed his
transformation of the Workers’ Compensation Commission. He has now succeeded in replacing
all Commissioners and appointing only the people he really wanted. He did so without
consideration of employer interests knowing that the Democratic controlled Senate would back
his nominations. He has worked to form an alliance with Senate President Emil Jones despite
feuding with House Speaker Michael Madigan.

The Governor couldn’t simply replace all the arbitrators, many of whom are fair-minded
individuals because they are protected civil servants. Instead, he simply swelled the number of
arbitrators and appointed primarily petitioner’s attorneys as new arbitrators. Fairness is
becoming more difficult to find.

Court decisions continue to highlight the need for legislative changes that favor employers – we
need legislation to define accident and repetitive trauma – we need legislation to redefine
causation. Our statute is currently silent and court decisions on these issues are extremely
unfavorable. Missouri legislators and other states across the country have recognized the
unfairness of our current system and they are making changes. If Illinois doesn’t change, it will
drive away more business than it has already. If our legislators are actually foolish enough to
make our system more expensive while other states rein in costs, it will demonstrate incredible
short sightedness and loss of touch with the reality of today’s environment.

Court decisions continue to aggravate and elate. Repetitive trauma cases are continuing to
frustrate employers as more and more cases are being held compensable despite strong evidence
which supports denial. Employers have been willing to accept liability in cases where the
employment activities are truly repetitive, but not in cases where employees use their hands but
not in a repetitive and forceful manner. Treating doctors are quick to support claims. They don’t
care and there is a strong financial incentive for a treating doctor to support compensability (they
get paid more). Of course, you can’t fault them too much because all they need to say is that the
work activities were “one of the contributing causes” of the condition.

It is clear that employers can’t solve this dilemma by litigation alone. In the cases decided by the
Court this quarter, the employers presented excellent cases to the Commission – compelling
evidence to justify a denial. Yet the Commission awarded benefits and the Court affirmed
liability. If employers are to have any chance of success, they must get legislative change (like
in Missouri) redefining accident and the standard of causation. The Missouri bill should be
given to each Illinois legislator and the Governor to let them know what intelligent states are
doing to achieve system wide fairness.

This has been a tough quarter for me. I have been fighting a stress fracture in my left heel for
months and it is not healed yet. I have been unable to run or race in months and it is frustrating.
Rehabilitation has been swimming and biking – which of course means – I will redirect my
summer efforts into triathlon training. Summer triathlons are fun – I hope to complete in at least
two Olympic distance triathlons this summer – before I start fall marathon training.

                                               - 18 -
A short spring break trip allowed me to do some scuba diving off the Florida Keys, visit Key
West and South Beach. I attach a photo of one of my favorite fish – a blue Parrotfish and one of
my relatives – a hungry Barracuda. My brother and I ventured to St. Louis, MO to watch the
Fighting Illini battle for the NCAA Championship. The Illini were a special team this year and
we enjoyed every NCAA game. The Elite Eight game against Arizona in Chicago was likely the
best basketball game and greatest comeback we will ever see.

This June – Mike Jr. and I will travel back to the remote island of Bonaire – just off the coast of
Venezuela – and spend a week in the southern Caribbean exploring the depths of the ocean. We
will seek and must find the elusive Seahorse and photograph it. Bonaire has one of the top dive
locations in the world – Town Pier. At night it is an explosion of sea life and all the colors of the
rainbow. We will certainly try to photograph it and share our adventures with our friends.

                                               - 19 -