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2-21-2018 - WCLA MCLE Slides

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WCLA MCLE 2-21-18
Review of Commission Decision SummariesFebruary 21,201812:00 noon to 1 pmJames R. Thompson Center Auditorium, Chicago, IL1 hour general MCLE credit
Cher Smith v. Manhattan Park District11WC019917; 17IWCC0462
IWCC REVERSES (3-0) Arbitrator’s award of benefits for slip & fallon snowin parking lotThe mere fact that duties takethe employeeto the place of injury and that, butforthe employment, the employee would nothave beenthere is not sufficient to give rise to the right tocompensation.Theevidence establishes that the parking lot was open to and used by members ofthe generalpublic.Whilethe parking lot was also used by employeesof thePark District, there isno evidenceestablishing that the Park District instructed their employees to park in that lot.Rather, employeeswere free to park anywhere in the lot, park in the street, or park in the ParkDistrict's otherparking lot. Thus, the employees and members of the general public were exposed tothe samerisk.(Not in the course of?)IWCC findsthat theaccumulation of snow in the parkinglot representeda natural accumulationas there was no evidence that Respondent createdor contributedto a hazard. As the lot was open to the general public, Smith's fall resulted froma hazardto which she and the general public were equally exposed. Thus, the Commissionfinds thatSmith's injurydid not arise outof heremployment.
Mark Hoffman v. Advanced Mechanical15WC003170; 17IWCC0298
IWCC affirms and adopts 2-1 the Arbitrator’s decision awarding benefitsTheArbitrator concludes that the parties entered into an employment relationshipat themorning meeting on January 26, 2015 and that the activitiesPetitionerengaged inbetween thetime hearrivedat Respondent's offices that morning and the time of the accidentwere incidentalto his employment and in furtherance ofRespondent’sinterests.See,BolingbrookPolice Department V. IWCC, 2015 IL App (3d) 130869 WC, citing Sears, Roebuck&Co.Respondent’sargument fails, in lightof Petitioner'sand Murray's testimony that Petitioner underwent training, receivedsafety equipmentbearing Respondent's name, signed a W2 form and received a specificjob assignmentbefore leavingRespondent’spremises on the morning of January 26, 2015.Kertisv.lWCC: theAppellate Court noted that "special rules" apply to traveling employees and that ''the dispositive question indetermining the compensability of a traveling employee's claimis whetherthe employee wasinjured whileengaging in conduct thatwasreasonable andthat mightreasonably be anticipated or foreseen by the employer.The Arbitrator findsthat Petitioner’sconduct at the time of the accidentwasboth reasonable and foreseeable.Commission Dissent: Given Petitioner’sfailure to present atthe jobsite, the last act necessary for theformationof an employment contract did not occur.As suchno employer/employee relationshipexists. Evenassumingthelast act necessary was the passing of the drug test, suchact occurredafter Petitioner's fall. Petitioner testifiedhe couldnot recall if he was advised ofthe results of thedrug test at the timeof testing.
JohnBumphusv. Unique Personnel Consultants15WC027577; 17IWCC0240
IWCC affirms and adopts 3-0 the Arbitrator’s denial of benefitsArbitratorfinds that Petitioner has failed to present evidence of asingle, traumaticwork-related incident. Petitioner alleges injurywhen he went tothe Glen Carbon office ofRespondentto discuss his "reasonable accommodation" due to backpain. Petitionertestified that he became“flustered" but there was noevidence ofadefinite,sudden emotional event.Petitionerdid not present any objectivemedicalevidence supporting apsychological injury causationand disability. That said, the Arbitrator findsthatthiscase isdistinguishablefrom Chicago Transit Authority.Arbitratornotes thatPetitioner’sclaim wasfiled underthe Workers'CompensationAct and not the Occupational Diseases Act.Arbitrator findsthat Petitioner's alleged interactions with his co-workers did not rise to a level greater thanday-to-day emotionalstrain and tension which all employees must experience and that Petitioner has failedto presentobjective evidence of any psychological condition or disability.
NicolasaGaytan v. Flanders14WC041248;17IWCC0282
IWCC affirms & adopts 3-0 Arbitrator’s denial of benefits.The Arbitratornotes that the Illinois Supreme Court addressed this precise issue in the caseofLuciousLee v.IndustrialCommission,167Ill 2nd77 (1995). Inthat case, the Supreme Courtaffirmed the -denial of a claim made by an employee who was injuredwhile travellingto a follow-up medicalappointment, concluding thatthe claimant was not: 1) acting at the directionof hisemployer in going to anemployer approved clinic; 2) performing an act incidental to an assigned dutyof hisemployment; or 3)acting pursuantto his duty of employment. The Court inLuciousLeeconcluded that theclaimant's subsequent injuriessustained while attending a follow-up medical appointment did not arise out of and in thecourse ofthat claimant's employment.Inthe present case, the evidence is clear that the Petitioner was free to choose her medical providerand wasnot directed to go the employer-approvedclinic. Petitioner's attendanceat the follow-up medical visitwasalso not an act incidental toan assigneddutyof heremployment with Respondent. Finally, Petitioner was under no duty, statutoryor otherwiseto attend her follow-upappointment.
TimothySkorepav. Berwyn Park & Berwyn Police10WC036348; 17IWCC0278
IWCC affirms & adopts 3-0 Arbitrator’s award of benefitsThismatter presents a uniqueissuein which at the time ofinjury Petitioner, an auxiliary police officerwiththe Berwyn PoliceDepartment wasworking in his second job as a patrol officer with theBervynPark District. The testimony reflects that there is a significantcross-over betweenthe two jobs in that the Park District Police forceemploys exclusively BerwynAuxiliary Police Officers and part-timeofficers: the Petitionerwears his Berwyn Police Department uniform andcarries his policeradio while performing his Park District duties.Arbitratorfinds that the Petitioner at the timeofthe incidentwas actingin the course of his employment as Berwyn Park DistrictPatrol Officerand, thus an employee and employer existed between the two.An employer-employee relationshipdid notexistbetween Petitioner andthe BerwynPolice Department on August 21, 2010.The Arbitrator furtherfindsthat the incident thatcaused the injuryarose out of the course of employment asBerwynParkDistrict Patrolman. Petitionerdidnotintentionally pursuethe traffic Violatorwhile on patrol. Rather, he unexpectedly was confronted by the violator whenhe spunout in front of his vehicle at an intersection. As a civil servant ina markedpatrol car,Petitioner'sactions in trying to stop the violatorwere reasonablein light of the possible danger before him and thegeneral public. Additionally,given that theBerwynParkDistrict purposely hired Berwyn PoliceOfficers as patrol officers,it isforeseeable that theremight be similarsituations in which they might have to act in response to acrime orviolation that might not necessarily be on Park District property.
KenOlzewskiv. City of Highland Park14WC030155; 17IWCC0289
IWCC reverses (3-0) Arbitrator and awards benefits; Arb. based on Section 11 “voluntary recreational”Between 4pm and 5pm was mandatory physical fitness done at the station. Petitioner stated that was an hour during the contractual work day where they were expected to exercise in some way to improve their fitness. Petitioner stated at Station there was a fitness room/gym with equipment.; when injures, performing incline bench press.Here, Petitioner was not playing ball or walking to his car butrather workingout for wellness and fitness which clearly wasof benefittoRespondentandthe communityat large.Evidence indicatesthe intentof Respondent obtainingthe grant from the Departmentof HomelandSecurity, to obtain fitness equipment, fora wellnessand fitness programforitsfirefighters,whether considered mandatoryor not.Petitionerwas on a 24 hour shift and he had to be onpremises.Personal comfort doctrine wouldalso result in a findingforPetitioner as there had to be some downtime forpersonal comfortseeing that Petitioner had to be present at the station and remained on the clock forthe entiretyof his 24 hour shift. Again, Petitioner working out is of great benefit to himand Respondent and consideringthegrant(mandatory)intentwasforkeeping emergency personnel fit as a benefitforall.
VernellDixon v. CTA14WC035831; 17IWCC0329
IWCC affirms and adopts (3-0) Arbitrator’s denial of benefitsThereis no dispute that Petitioner was acting in the course of his employmentat thetime he picked up theunknown female/malecouple at thestop.Afterthe man spit towards Petitioner from the front doorarea, theman turned to face the front door in an attempt to push it open and leave, thus nolonger interactingwith thePetitioner. Oncethe male passenger turned his back to Petitioner and attempted to exit the bus, thePetitioner’s subsequentactionscannot be deemed to have been in furtherance of his employment.What transpiredthereafter were not actions by thePetitionerin the performanceof hiswork duties, butan act of exactingretribution or punishment onto the passenger, a deviation from his employment.AIternatively, the “aggressordefense'' is applicableandbars Petitioner fromrecovering anybenefits under the Act.The “aggressordefense'' provides that injuries suffered by the aggressorin afight related to the employer's work are not compensable under the Act as it breaks thecausal connectionbetween the employment and the injury.
Richard Powell v. Manchester Tank15WC029725; 17IWCC0205
IWCC modifies down (3-0) Arbitrator’s award of TTD through hearing dateSothat the record is clear, and there is no mistake as to the intentions or actions ofthis Commission, we have considered the record in its entirety. We have reviewed the facts ofthe matter, both from a legal and amedical/legalperspective. We have considered all ofthe testimony, exhibits, pleadings and arguments submitted by the Petitioner and theRespondent. Oneshould not and cannot presume that we have failed to review anyof therecord madebelow. Thoughourreview of therecord may or may not be different than the Arbitrator's, it should notbe presumedthat we have failed to consider any evidence taken below. Our review of thismaterial isstatutorily mandated and we assert that thishas beencompleted.The Commission finds that the Petitioner is not entitled to temporary total disabilityfrom April, 2016throughthe dateof theArbitration hearing due to thePetitioner’srefusal to workin alight duty capacity for the Respondent.Petitioner was performingactivities at homethat wentbeyond his restrictions, including mowingandworking in the vegetablegarden.Petitioner also testified to periods of prolonged sitting at home including sitting on alawnmowerand sitting on a 4-wheeler, which aggravated his work-related back condition. Hefurther testifiedon re-cross examination that when he was offered a light duty positionwiththe Respondent, he declined the position due to issues with sitting.
IoannisAdvis, widower v. NorthParkUniversity09WC036001; 17IWCC0290
2-6-09: DA; 3-15-11: TTD through MMI by treater; 11-27-11: maintenance11-28-11: DODConvertingtheArbitrator’saward from60% loss of theleft leg(129wks) tolossof use ofthe person-as-a-whole, we find an award of the loss of27.5% ofthe person-as-a-whole(137.5wks)is appropriate caseandmodifies upTheCommission mustnow address the questionof whether Sofia’ssurviving spouse is still entitled to takeon her permanent partial disability award after we have converted it from the specific loss of the use of a leg to a person-as-a-whole award.Accordingto our interpretationofElectro-Motive, anyunpaidpermanentpartial disability award for lossof theperson-as-a-wholesurvivesthe death of the injured employeeSofiaAdvis.Inaddition, according toour interpretationof Section 8(h)of theAct, as surviving spouseof theinured employee,Petitioner isentitled to receive any remaining unpaid person-as-a-whole permanentpartial disability benefitsawarded.
TimothySimmons v. Cintas Fire Protection15WC014703; 17IWCC0336
IWCC modifiesdown(2-1) from120 weeks to 100 weeks (8(c))First, the Arbitrator reviewed and weighed the five factors delineated in Section 8.1bof theAct in making hisdetermination. The Act specifies these factors are intended tobe consideredspecifically in the context of“permanentpartialdisability,”in other words, incases involvinga determination of benefits under sections 8(d) or 8(e).In awards underSection 8(c) fordisfigurement,any benefits under Sections8(d) or 8(e) are statutorily foreclosedper Section 8(c). Accordingly, thefive-factorsanalysis as performedby theArbitrator is given noweightin making our determinationforpurposesof 8(c)disfigurement benefits.Dissenter disagrees and would have used 8.1b to award 30% leg (64.5wks)
Mark Grady v. City of Bloomington15WC028154; 17IWCC0224
IWCC modifies down (3-0) from 15% left hand to 10% left handIWCC reviewsand weighs thefacts somewhatdifferently than did the Arbitrator. Specifically,IWCC takes notice thatwhile the claimant did suffer an avulsion fracture to the left wrist, he was prescribedlight dutyand lost no time from work prior to his release to full duty on April 27,2015The Commission notes the factors identified in Section 8.1b of the Act, as didthe Arbitrator. TheAMAimpairment rating of4% LUE. IWCC particularlynotes this as a relevantdistinction fromContinental Tirein which claimantalso suffered a wristfracture butlost no time from work. That petitioner was found by the Commission to have a 5% lossto thehand as permanent partial disability; however, that claimant had been assessed with a0% AMA rating.Arbitratorfurther noted theemploymentas a mechanic, his age,and the Petitioner'scomplaints as corroborated by the medical records, and assigned theseissues appropriate weight.Arbitratorgave no weight to the fact that there wasno evidencethat this injury hadanyeffect on thePetitioner'sfuture earning capacity.IWCC findsthat there wasaffirmativeevidence presented on this point, specificallyhis ongoingemployment and the raises he had received since the injury, which alsoweighedinon the Petitioner'sjob history. The Commission assigns this some weight.
Robert Brock v. Centurion Industries10WC00629; 17IWCC0302
IWCC modifies (3-0) vacates wage-differential and remands to Arbitrator “with instructions …Respondent to authorize the enrollment of Petitioner in avocrehab programwiththe objective being to return Petitioner to work as a welder.”Petitioner did unsuccessful self-directed jobsearchseeking employmentas awelder.Petitioner’s expert: Blaine,CRC, obtained information about Petitioner’s background and work history and reviewed medical records and concluded Petitionerwas precluded fromreturning to work asan industrialwelder, butthoughtPetitioner was capable of workingas a forkliftoperator and asa craneoperator. Blaine madepassing referenceto shopwelding, notingestimatedsalaryrange, butmade no suggestionabout returningtowelding.Respondent’s expert: Belmonte, CRC,reviewedPetitioner's medical records, metwithPetitioner and obtainedadditionmedical information and Petitioner’swork history.Belmonte concludedPetitionerhad notnecessarily lost access to his pre-accident career as an industrial welder providedPetitioner workedwithinmedicalrestrictions.Belmonte identifiedwelding as a growing fieldin ILandfound posted openings for welding jobs.Petitioner gets maintenance under Section8(a)whileparticipatinginvocational rehabilitation





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2-21-2018 - WCLA MCLE Slides