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Wages for Short Timers

March 2018

By Kelly E. Kamstra

When a claimant is employed with an employer for at least a year prior to their workplace accident, the applicable average weekly wage is relatively straightforward to calculate. In situations where a claimant is employed less than a year prior to his or her workplace accident, a more involved analysis must take place.

Section 10 of the Illinois Workers’ Compensation Act addresses how an average weekly wage is to be calculated in cases where petitioner has worked less than a calendar year. The Commission can either add up claimant’s actual earnings for the period of her employment and divide by the weeks and parts worked; or, if her time has been really short, measure her AWW by the earnings data of a person working in a like job for the year preceding the claimant’s accident.

The question becomes, of course, what is a “really short” period of employment such that the IWCC will look to the earnings of a colleague.

Illinois: The State Of Comp

June 2017

By Francis M. Brady

Writing about developments in Springfield is a bit like forecasting Illinois weather: tricky due to sudden changes. My lawyer's tendency to avoid absolutes becomes even more pronounced when I handicap legislation. Still there are things you ought to know so, with the caveat that nothing is ever completely certain in the State Capitol, here is where Workers' Compensation reform stands "as I write."

HB 2622 enacting a State run Comp Insurance carrier (funded initially by a 10 million loan from the IWCC Operations Fund) was passed by the Senate last Friday and now is on the Governor's desk. He almost assuredly will exercise his veto.

Also last Friday the Senate amended HB 2525 and returned it to the House where it passed on a party line vote yesterday (May 31, 2017). I expect it, too, will be vetoed by the governor.


June 2017

By Beverly N. Masuda

The Firm recently marked 20 years of operation with another in its series of Annual Seminars. Drawing on their experiences as Arbitrator, Psychologist, and defense counsel, speakers illuminated the path to advantageous claims results.

Prominent among the speakers were Arbitrator Maria Bocanegra and Dr. Nancy Landre. As a litigator turned Judge, Arbitrator Bocanegra brought a breadth of perspective to her topic of procedures that, while tending to be overlooked, nevertheless could be employed to streamline and persuade. She called attention to Section 8.2 (a-3) of the Act, which limits the amount that can be charged when a prescription medication is dispensed outside a licensed pharmacy, for example, from a physician's office. She stressed the value of a thoroughgoing investigation into the totality of circumstances surrounding the prescription and delivery of a drug as opposed to simply turning the issue over to a vendor for pricing. She emphasized as well that she often wished evidence would be introduced not just on whether the drug represented reasonable and necessary care, but also, whether it might be replaced with a less costly substitute.

Springfield Report: Reform Lives!

Janurary 2017

By Francis M. Brady

In the closing days of the 2016 Legislative session, negotiations concerning Workers' Compensation have been reanimated. While there is likely not enough time to get agreement before the 2017 General Assembly is seated on Wednesday, January 11, 2017, the Governor's office, Senate, and House Democrats are all staking out positions. They all appear to be jockeying for position so it seems safe to say that Comp will be a topic of immediate concern as the new session opens.

Proposed legislation including changes to the allowable expense of care and credit for back injuries may be forthcoming from the Senate and/or Governor's office in the near future. In the meantime, this past Friday, January 6, 2017, Representative Jay Hoffman filed House Amendment #4 to Senate Bill 2901. The proposed legislation focuses on the alleged failure of the insurance industry to reduce premiums to reflect cost reductions; reclassifies shoulder and hip injuries as arm and leg conditions, respectively; allows for contribution relative to repetitive injuries; defines "arising out of"; and emphasizes the investigation of alleged fraud on the part of employers and their representatives.

More specifically, the legislation:

PPD May Be Awarded Without an AMA Report

June 2016

By Francis M. Brady

In a decision published on June 28, 2016 (Corn Belt Energy Corporation v. The Illinois Workers' Compensation Commission, et al.), the Illinois Appellate Court affirmed an award of 3% loss of the whole person even though the record lacked an AMA Rating. The employer had appealed, arguing that Section 8.1(b) of the Illinois Workers' Compensation Act requires the injured worker provide an AMA opinion. The Court declined to so obligate the injured worker finding that, in fact, neither the worker nor her employer must submit a report. It determined that "clearly, the plain language of Section 8.1(b) places no explicit requirement (regarding submission of an AMA Rating) on either party." The Court conceded that when an AMA report "is admitted into evidence, it must be considered by the Commission, along with the other identified factors, in determining the claimant's level of PPD." But, it reiterated that "...nothing in the plain language of the Act precludes a PPD award when no PPD impairment report is submitted by either party."

The Court's decision also addresses the issue of causal connection. The evidence at trial, consisting only of treating medical records and petitioner's testimony, was clear that his conditions pre-existed the work accident. He had undergone a significant amount of chiropractic care before the trauma, not completely dissimilar from what he underwent afterwards. The employer contended the Commission could not award PPD because the worker "failed to present any medical opinion evidence" affirmatively tying his condition to the work accident. The Appellate Court disagreed, indicating that petitioner's evidence was sufficient to show, on a circumstantial basis, that his back and neck conditions were different, and more significant, after the work trauma.

New Case Law: Rare IWCC Reversal on Slip/Fall Case

First Cash Financial Services v. IC

In a 4-1 opinion, the appellates reversed the arbitrator, Commission and circuit court on the issue of arising out of. The claimant slipped and fell, dislocating her elbow, while entering the bathroom at the end of her shift to retrieve a personal item (a lunch container.) She did not notice any defect or debris on the floor. Three co-workers testified that they did not notice any debris on the floor, although they could not recall the last time the bathroom had been cleaned prior to the accident. The case was found by the arbitrator to be compensable, and the Commission and circuit court affirmed without comment.

The appellate majority analyzed the three types of risks that occur in the workplace: employment-related risks (such as defective or debris-laden surfaces; or duties that increase the risk of injury), employee-related risks (such as idiopathic physical conditions in an employee that could cause one to fall), and neutral risks (not increased by any employment-related factors). The latter two are not generally compensable. The court held that the arbitrator improperly speculated that it was possible that the floor was dirty, and required the employer to prove that it was not:

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
One Metropolitan Square
211 North Broadway, Suite 2200
St. Louis, MO 63102
Phone: 314-300-0527
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