NEWSLETTER - May 2006

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May 2006

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• Firm Happenings
• Case Law Updates
  1. New Case On Mental Stress Not Favorable To Employers
  2. Supreme Court Confirms That The Time Limit For Reviewing Section 8(d)1 Awards Is Controlled By Section 19(h)
  3. Fifth District Appellate Court Determines That Two Minutes Is Too Late

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Firm Happenings

Our website continues to evolve as we have added a "Breaking News" link to post cases or developments that occur between our monthly newsletters that visitors to our site should know about. Last month, just after our newsletter was posted we received advance sheets on Pickneyville Community Hospital v. Industrial Commission, which continues the unfortunate trend of the Appellate and Supreme Courts to expand the compensability of mental stress cases under the Worker's Compensation Act. We posted our summary of it under the "Breaking News" link on April 7, and it is reprinted below as part of our regular newsletter. Don't forget to click on the link when you visit our site for further developments in caselaw affecting your business.

We are happy to announce that Grace DiGerlando will be returning to the firm. Grace and her family relocated to Michigan last year but found they couldn't resist returning to the Chicago area. We look forward to Grace's return in mid-June.

On the litigation front, we have continued our streak of success at the Illinois Worker's Compensation Commission. Mike Inman received a favorable decision from Arbitrator Erbacci on a slip and fall claim by a retail store worker. The claimant stated that she turned on a carpeted floor to get a product for a customer when her shoe stuck and she fell, injuring her knee. The Arbitrator agreed with Mike that the petitioner produced no evidence of any defect in the carpeting, nor did she show that any aspect of her employment - such as whether she was carrying something or was hurrying - increased the risk of her falling on the carpet, which was in an area accessible to the public.

In another case, the Commission reversed an award of medical benefits to a claimant who had been injured in 1995, filed three more claims for injuries in 1997, but introduced no medical records of treatment for any of her claimed injuries between the years of 1996 and 2000. The Arbitrator had awarded medical bills for the treatment in 2001 and beyond, and open medical for the injuries from the 1995 accident. The Commission agreed with Jack Shanahan that the award of medical bills should be reversed, reducing the award to the petitioner by over $10,000.00, and that the claimant's treatment after 1996 was not causally related to any of her work injuries.

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Case Law Update

New Case On Mental Stress Not Favorable To Employers

The 5th District Appellate Court of Illinois has issued a decision concerning physical injuries resulting from mental stress on the job that will kick the door open even wider for claimants who wish to attribute diseases from underlying conditions to the stress they are under at work. Following in the line of the Supreme Court's unfortunate Baggett decision, the Court upheld a Commission decision that an employee who suffered a cerebral hemorrhage while giving a speech at a testimonial dinner for a retiring doctor sustained a compensable work injury from the aggravation to her underlying hypertension caused by her mental stress from giving the speech.

In Pickneyville Community Hospital v. The Industrial Commission (No. 5-05-0204WC, 5th Dist., March 2006) the petitioner, the Director of Nursing for the respondent, suffered an intracerebral hemorrhage and stroke while giving a speech at a dinner for a retiring physician. The issues on appeal were whether the dinner was a voluntary recreational activity and therefore not a work activity pursuant to Section 11 of the Act, and whether the petitioner's cerebral hemorrhage and stroke were medically causally related to the alleged work injury.

The bulk of the Appellate Court's decision dealt with the issue of whether the dinner was a voluntary recreational activity. The Appellate Court determined that it was not, and found that the dinner was a work activity covered by the Act since the petitioner was "ordered or assigned" to both attend and to speak at the dinner. In reaching this conclusion, the Appellate Court noted that the petitioner testified that the respondent's chief executive officer, John Schubert, had assigned her to speak at the dinner during a meeting. The Court also found the testimony of Dr. Fozard, the petitioner's personal physician and the respondent's chief of staff until 1997, to be persuasive. Dr. Fozard testified that "to the best of his knowledge," it was Schubert who had asked the claimant to give the speech. It is interesting to note that neither the Commission nor the Appellate Court attributed much weight to the testimony of Mr. Schubert, who testified that he did not order anyone to speak at the event or direct or require any employees to attend the event.

The Appellate Court also rejected the respondent's medical causal connection argument, and noted that the Commission's decision was not against the manifest weight of the evidence. The experts on each side were in agreement that the petitioner had a long standing history of hypertension. The petitioner's experts opined that the stress of the speech led to an acute elevation of blood pressure that caused the hemorrhage and stroke. The respondent's experts, on the other hand, opined that the cause of the hemorrhage and stroke was the untreated hypertension. However, one of the respondent's expert physicians opined that it was possible, if the petitioner was very nervous about giving the speech, that it could have caused a release in adrenaline that would result in elevated blood pressure causing increased stresses on the blood vessels and possibly playing a role in the hemorrhage. In summation, the Appellate Court noted that the Commission had ample evidence from which it could conclude that the speech was a causative factor that accelerated or aggravated the petitioner's preexisting condition of hypertension.

Supreme Court Confirms That The Time Limit For Reviewing Section 8(d)1 Awards Is Controlled By Section 19(h)

In Cassens Transport Co. v Industrial Commission, the Supreme Court held that an employer does not have an unlimited right to ask the Commission to review and modify a Section 8(d)(1) award for wage differential. The Court deferred a response on the larger issue of whether such an award can be reviewed due to a change in economic circumstances only, rather than due to a change in the physical disability.

The petitioner sustained an injury in August of 1988 for which he was awarded wage differential benefits of $203.55 per week under Section 8(d)(1). Ten years after the award, the employer obtained wage documentation indicating that the claimant in the year 2002 was earning a wage which exceeded the original accident wage. The employer filed a Motion to Suspend Benefits, arguing that the wage discrepancy, upon which the prior award was based, no longer existed. The Commission denied the Motion, holding that the phrase "for the duration of his disability" refers to the duration of the employee's physical or mental disability, not the duration of the economic disability. The Circuit Court affirmed.

The Appellate Court agreed with the dismissal of the Motion to Suspend Benefits, but held that the Commission and the Court did not have jurisdiction to even entertain the Motion, since Section 19(h) has a 30-month time frame in which to bring such a Motion. The Appellate Court had held that even though the wage differential language of Section 8(d)(1) indicates the benefits are to be paid "for the duration of his disability", this did not give the Commission endless jurisdiction beyond the 30-month period of Section 19(h). In addition to the jurisdictional argument, the Appellate Court also relied on Petrie v. Industrial Commission, 160 Ill.App.3d 165 (1987), which held that "disability" under section 8(d)1 means physical disability and not economic disability.

The Supreme Court granted the request to review the decision as involving a substantial question warranting consideration by the Court. The Court reviewed all of the sections of the Workers' Compensation Act which granted the Commission authority to modify a final award. This included Section 19(f) for clerical errors, Section 19(h) (30-month time frame to review when disability has recurred, increased, diminished or ended), and Section 8(f) (in cases of permanent total disability when the employee returns to work or is able to do so, and earns as much as before the accident). The Court pointed out that each of these provisions contains specific language authorizing a Review. However, Sec. 8(d)(1) regarding wage differential benefits contains no such specific language regarding Review. The Court therefore refused to read such language into Section 8(d)(1). The Court held that the award under Section 8(d)(1) had become final once the 30-month time frame for review under Section 19(h) had passed, and therefore the Commission no longer had jurisdiction to reopen the award after that point in time.

Therefore, the Supreme Court did not address the subsequent argument about whether the disability must be physical, or whether it can be economic. The current state of the law is that the change in condition for 19(h) review of an 8(d)1 award requires a change in the claimant's physical condition, not simply an increase (or decrease) in his earnings. One further note, under the recent legislative changes, the parties now have 60 months to file a Petition under Section 19(h) for accidents or diseases which occurred on or after February 1, 2006.

Fifth District Appellate Court Determines That Two Minutes Is Too Late

In a case sure to keep Plaintiff's attorneys awake at night, the 5th District recently upheld a trial court's order dismissing a claim as not timely filed within the statute of limitations when the Plaintiff's attorney's courier arrived at the clerk's office at 4:02 p.m. on the last day of the limitations period. The clerk's office officially closed at 4:00. According to the opinion, the clerk on staff actually took possession of the document, inquired of the courier what it was, then handed it back to the courier and advised that it was too late to be filed on that day. The complaint was filed on the following day, but the trial court granted Defendant's motion to dismiss on the basis that the complaint was not filed within the two year statute of limitations.

The Appellate Court affirmed, noting that Plaintiff had two years to file her action, that the clerk's office hours had been publicly published as closing at 4:00 p.m. and that the courier was late. The fact that the clerk actually received the document before handing it back did not save the Plaintiff since it was not tendered to the clerk until after closing time at the clerk's office.

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