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Recent Appellate Court Decisions
In Marque Medicos v. Zurich, Travelers, Hartford, and AIG et al., 1-16-0756, (1st Dist. 2017), the First District Appellate Court-Sixth Division affirmed the dismissal of Plaintiffs’ (medical provider Marque Medicos; et al.) request for interest payments at 1% per month payable to the provider pursuant to the Illinois Workers’ Compensation Act (820 ILCS 305/8.2(d)(3).
The Plaintiffs contended in a four-count complaint the following:
Count 1. The Medical Providers were third-party beneficiaries of the standard
policies Defendants issued to employers, and that the Medical Providers
were therefore entitled to recover for employers’ breach of those policies.
Count 2. The Medical Providers had an implied private right of action to recover for
employers’ violation of Section 8.2(d)(3) of the Act.
Count 3. Employers breached contracts with the Medical Providers that were
Count 4. The Medical Providers sought an award of attorney fees and statutory
damages for Defendants’ vexatious and unreasonable refusal to pay
accrued interest for late payments, pursuant to Section 155 of the Illinois
The Appellate Court affirmed that the Circuit Court had subject-matter jurisdiction over the action and that all the claims were dismissed appropriately with prejudice. (Note: This is not the specialized division of the Appellate Court that hears workers’ compensation matters and an appeal may be pending.)
John F. Power, III
On April 13, 2017, the Workers’ Compensation Commission Division of the Appellate Court issued a Decision, affirming the Commission’s denial of benefits to a firefighter who suffered a cardiac condition. This is the first published Decision on the “rebuttable presumption” statute which was enacted by the legislature in 2008. A copy of the Court’s Decision in Johnston v. Illinois Workers’ Compensation Commission is attached.
The legislature created a rebuttable presumption in favor of firefighters who suffer from certain conditions, including heart disease and cancer. Such conditions are rebuttably presumed to be related to the firefighter’s employment and the exposures faced in that employment. The statute did not specifically address the amount of evidence required to rebut the presumption on the part of the employer. The Appellate Court has now determined that the employer need not present clear and convincing evidence to rebut the presumption, but rather is required to offer some evidence sufficient to support a finding that something other than the claimant’s occupation as a firefighter caused his/her condition.
This is a very significant opinion from the Appellate Court, since it helps define the weight of evidence required to rebut a presumption. The employer may present, for example, the opinion of a defense expert, opining that firefighter’s condition is not related to work place exposures, and, based on the Appellate Court opinion, the opinion should be sufficient to rebut the presumption. Once the presumption is rebutted, the burden of proof shifts back to the Petitioner, and a finder of fact (Arbitrator or Commission) is required to determine whether the Petitioner has proved his/her case by preponderance of the evidence. For non-municipal clients, the Appellate Court Decision is also reassurance that the Appellate Court will support reasonable defenses in appropriate cases.
John P. Fassola
Attorney at Law
Power & Cronin
In Con-way Freight, Inc. v. IWCC, 1-15-2576 WC (1st Dist. 2016), and Flexible Staffing Services v. IWCC, 1-15-1300 WC (1st Dist. 2016), the Workers’ Compensation Commission Division of the Illinois Appellate Court defined the proper weight to be given an AMA impairment rating when awarding permanency. The Flexible Staffing decision is notable, in particular, because the Appellate Court, for the first time, discusses the weight to be given to age as one of the factors to be considered.
In Flexible Staffing Services v. IWCC, the Workers’ Compensation Commission Division of the Illinois Appellate Court affirmed a circuit court decision which had confirmed the IWCC’s award of benefits. The petitioner suffered an accepted work accident when he was welding a section of rail. When the rail slipped, the petitioner attempted to grab it. The rail weighed over 400 pounds. The petitioner felt pain in his right arm and was diagnosed with a distal biceps tendon rupture. The petitioner eventually underwent a surgical repair of his right elbow. After physical therapy he was discharged from treatment and released to full unrestricted employment. The treating physician noted the petitioner had decreased range of motion. On the last office visit, the petitioner complained of numbness and diminished strength. When the petitioner returned to full duty, the Respondent discharged him from employment.
At the request of the employer, the petitioner was examined by Dr. Mark Levin. Dr. Levin conducted an AMA impairment rating and determined the petitioner had an impairment of 6% of the right upper extremity or 4% man as a whole.
In Noonan v. IWCC, 1-15-2300 WC (1st Dist. 2016), the Workers’ Compensation Division of the Illinois Appellate Court affirmed the IWCC decision which had found the Petitioner failed to meet his burden of proving a compensable accident.
In Noonan, the Petitioner was a clerk for a trucking company. He answered the phone and filled out truck driver sheets. While filling out a truck sheet, the Petitioner accidentally dropped his pen on the floor. The Petitioner was sitting on a wheeled chair. The Petitioner placed his left hand on the desk and reached for the pen with his right hand. As the Petitioner’s right hand got close to the pen, the wheeled chair went out from under him and the Petitioner stuck out his right hand to brace his fall. The Petitioner eventually required surgery for an injury to his right wrist.
The Arbitrator held the Petitioner failed to prove his right wrist injury arose out of his employment. Benefits were denied. The Arbitrator determined the Petitioner failed to prove that sitting in a rolling chair and reaching for a pen exposed him to a risk of injury beyond what members of the general public are exposed to. The Arbitrator’s denial of benefits was affirmed by the IWCC.
The Petitioner appealed to the circuit court. Judge Robert Lopez Cepero of the Circuit Court of Cook County reversed the IWCC decision and remanded the matter back to the IWCC for an award of benefits.
In Allenbaugh v. IWCC, 3-15-0284WC (3rd Dist. 2016) the Workers’ Compensation Commission Division of the Illinois Appellate Court affirmed the circuit court which had confirmed an IWCC finding that the petitioner’s injuries were not compensable.
In Allenbaugh the petitioner was a police officer. He was ordered to report to police headquarters for a mandatory training session. The mandatory training session was scheduled for a time outside of his usual shift. It had been snowing on the date of accident and there was ice and slush on the road. An oncoming vehicle crossed the centerline and forced the petitioner into a ditch. The petitioner suffered neck and back injuries.