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Practice Alert - June 16, 2008

The Illinois Workers' Compensation Commission announced today that Arbitrator Jennifer Teague will serve as Commissioner DeMunnos temporary replacement, effective immediately. Commissioner DeMunno serves as the Public Member on Panel C of the Commission. Arbitrator Teague shares with Chairman Ruth a background as a petitioners attorney and the outlook that comes with representing the worker. She is the Arbitrator whose decision was recently overturned by the Appellate Court because she improperly awarded permanent disability benefits for both a specific loss and a permanent total disability in the same claim. (Beelman Trucking v. IWCC, 381 Ill. App. 3d, 2008).

Panel C will now consist of Commissioner Gore as the employee representative, Arbitrator Teague as the neutral Public member, and Commissioner Basurto as the employers representative. With Arbitrator Teague serving as the public member of Panel C, a majority of the Panel is now strongly petitioner-oriented. Those claims now assigned to Commissioner DeMunno will be the primary responsibility of Arbitrator Teague and she and her staff will have the first voice in the decision on those cases.

Arbitrator Teague was scheduled to be on vacation for the month of July, so no decision has been announced by the IWCC as to how her arbitration docket will be managed during her temporary assignment. The maximum duration of this temporary assignment is 6 months.

Case Law: S & H Flooring v. Illinois Workers' Compensation Commission

June 12, 2007

In a decision issued today, a majority of the Appellate Court has expressed a willingness to apply a heightened level of scrutiny to cases wherein the Commission reverses an Arbitrators decision by reversing the Arbitrators findings on credibility. The Court issued its opinion in S & H Flooring v. Illinois Workers' Compensation Commission, Dkt. 4-06-0245WC, 6/12/07, stating It may very well be time to reconsider the Commissions prerogative to determine credibility regardless of the arbitrators decision.

Please note the Court refused to apply a heightened scrutiny standard in this case, where the employer introduced NO medical evidence in support of its defense AND the employers witnesses on the issue of accident/causation actually lent support (through their testimony that employee limped for one year at the end of each work day) to a finding of repetitive trauma.

The Court seems to be saying that when employer has presented solid evidence on all issues, including accident, that is persuasive to the Arbitrator, and the Commission reverses, at least in significant part, by reversing credibility findings, the Court will give that Commission decision a greater degree of scrutiny. However, if even one core issue, such as accident or causation, is not closely contested on the evidence, the de novo standard will be applied.

Employer's CGL Policy Does Not Cover Employer's Liability Above Kotecki Cap

The Illinois Supreme Court issued a ruling on Friday January 19, 2007 that impacts insurance coverage in construction cases.

In Virginia Surety Company, Inc. vs. Northern Insurance Company of New York, Docket No. 102036, the Supreme Court ruled that a commercial general liability policy of insurance (CGL) issued to a subcontractor does not provide coverage for damages above the Kotecki cap.

This case arose out of a June 4, 1997, injury to James Smith, an employee of DeGraf Concrete Construction, Inc. (DeGraf) which occurred while he was performing cement masonry work in Addison, Illinois. DeGraf was performing work on this jobsite pursuant to a construction subcontract it had entered into with Capital Construction Group, Inc. (Capital), the general contractor for the project. The contract between Capital and DeGraf contained language constituting a waiver of DeGraf's limited liability under the case of Kotecki vs. Cyclops Welding Corp., 146 Ill.2d 155, 164-65 (1991). (Kotecki held that employer's maximum liability in a third-party suit for contribution is limited to its liability to the employee under the Workers' Compensation Act. Subsequent cases, including Braye vs. Archer-Daniels-Midland Company, 175 Ill.2d 201 (1997), held that an employer could waive the limited liability protection provided by Kotecki.)

New Case Law: Mortons & Gooden

August 1, 2006

Two new decisions were recently released by the Illinois Appellate Court, Workers' Compensation Commission Division. The first was an appeal of a case decided by our own Valerie Peiler during her tenure as an arbitrator: Mortons of Chicago v. Industrial Comm'n (Jane Rooch), No. 1-05-2461WC (1st District, July 12, 2006).

Facts: This is one of those cases that started out well, but definitely did not improve with continued appeal. The petitioner was a restaurant server who injured her knee on the job. After arthroscopic surgery, her physician determined that she could not return to waiting tables. Her earnings (apparently true) the year before the accident (1998) were $44,400.

According to the Court opinion, there were two other servers who had the same level of experience and seniority as the petitioner. They earned $44,300 and $43,700 in 1998. The petitioner had previously earned a bachelors degree in paralegal studies, but had never worked as a paralegal because she made more waiting tables. In 2000, she secured a paralegal job at $34,000. In 2000, the two co-workers at Mortons were earning $50,000 and $54,500.

Impact of New Legislation

January 13, 2006

By Francis M. Brady

The Governor has now appointed members of the Medical Fee Advisory Board. There are three representatives from the employee class; three from the employer; and three from the medical provider class. The Board is responsible for making rules implementing the Fee Schedule now being constructed.

The Board met in public in the Oral Argument room at the Illinois Workers' Compensation Commission in Chicago on January 13, 2006. Valuable presentations were made by Chairman Dennis Ruth followed by Glen Boyle and Brent Veninga. Mr. Boyle is project manager and is charged with developing, and making usable, the fee schedule contemplated by Section 8.2 of the recent workers' compensation legislation.

Mr. Veninga is a representative of Ingenix. He, too, made an instructive presentation consisting of his comments and PowerPoint slides. From its own base, augmented with information from the Illinois Department of Public Health, Ingenix is compiling the huge amount of data required to build the fee schedule.

  • 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
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