NEWSLETTER - June 2006

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June 2006

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• Case Law Updates:
  1. Denied Sec. 19(H) Petition does not extend 30 month limitations period
  2. Traversing high threshold across usual employee access router deemed increased risk
  3. City prevails in Police Chase Injury Claim (ii)

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Case Law Updates:

Denied Sec. 19(H) Petition does not extend 30 month limitations period

The Appellate Court has ruled that a petitioner cannot file successive Section 19(h) petitions, requesting an increase in permanency, simply as a means to extend the 30 month limitations period under Section 19(h).  In Beac vs. Industrial Commission, the Commission had made an award of 50% man as a whole on December 30, 1997.  The petitioner then filed a Section 19(h) petition on April 21, 1999, which was well within the 30 month period allowed under Section 19(h).  The petition was denied on December 6, 2001 by the Commission. 

The petitioner then filed a second Section 19(h) petition on July 22, 2002. This was now outside of the 30 month limitations period going back to the original award of December 30, 1997, but within 30 months of the December 6, 2001 denial of the original Section 19(h) petition.

The Court clarified a previous decision in the case of Hardin Sign Company v. Industrial Commission, 153 Ill.App.3d 386 (1987), which had held that a decision on a Section 19(h) petition did toll the 30 month limitations period for purposes of a subsequent Section 19(h) filing.  However, in Hardin, the “decision” on the 19(h) petition was favorable to the claimant.  In the instant case, the original Section 19(h) petition had been denied, with the original award left to stand as the only “decision”. 

The Court reasoned that to permit claimants to simply file successive Section 19(h) petitions, regardless of their merit, would frustrate the purpose of Section 19(h), and would allow claimants to hold their claims open indefinitely.  In Hardin, the granting of the original Section 19(h) petition essentially constituted a new “award”, creating a new date from which the 30 month limitations period should run.  Where the 19(h) petition is denied, however, the claimant does not restart the clock on the 30 month window specified in section 19(h). 
Beac vs. Industrial Commission, Case No. 2-05-0813WC, Appellate Court, 2ND District, May 5, 2006)

Traversing high threshold across usual employee access router deemed increased risk

In University of Illinois vs. Industrial Commission, the petitioner alleged a work injury on December 18, 2000.  She testified that she was walking from an employee parking area and was carrying a bag containing three books as well as a crock pot of food for a mandatory monthly midwife service meeting she was to attend.  She testified that she was proceeding through the parking structure toward a walkway that passed over the street and connected with the hospital.  As she passed through the doorway between the parking structure and the walkway, she tripped on a metal threshold and twisted her right knee. 

She described the metal strip as approximately 12 inches wide, three inches high, and going up on an angle.  Although the emergency room record from later that afternoon contained a history that she slipped on ice, a separate handwritten emergency note indicated that she simply indicated that she tripped going between the buildings.  Additionally, she reported the incident to a University police officer that afternoon as well, and the police report contained the history that she tripped over the metal floor plate separating the walkway from the hospital from the parking structure.  The officer noted he viewed the threshold and did not find anything wrong with it.

The arbitrator denied the claim, finding that she had not proven an accident arising out of her employment.  The Commission reversed, and the Circuit Court then affirmed the reversal. On appeal the employer argued the petitioner was not exposed to a risk greater than that to which the general public is exposed.

The Appellate Court held that this case involved more than just the risk inherent in walking across a common threshold.  The Court specifically noted the Commission's fact-finding that this was a metal strip approximately 12 inches wide and three inches high and that it was not willing to overturn the Commission's finding that the strip, due to its height, constituted a hazardous condition.  The Court further held that the Commission could have reasonably inferred that the walkway was a usual access route from the parking facility for employees of the hospital. 

The Court adopted the finding in Litchfield Health Care Center v. Industrial Commission that when an injury to an employee arriving for work takes place in an area of the employer's premises that constitutes a usual access route for employees, and is caused by some special risk or hazard located thereon, the “arising out of” requirement is satisfied.  University of Illinois vs. Industrial Commission, Case No. 1-05-2550WC, May 3, 2006.

City prevails in Police Chase Injury Claim

The First District Appellate Court recently upheld a verdict denying a Plaintiff's claim for damages for injuries suffered when he was struck by a vehicle being pursued by a police car as he traversed a sidewalk in Chicago.  Plaintiff sued the City of Chicago for negligence and willful and wanton conduct in causing the pursuit and the subsequent reckless conduct by the driver of the pursued car.  The negligence claim was dismissed on a motion for directed verdict at the close of Plaintiff's case, and this was upheld by the Appellate Court based on the Tort Immunity Act. 

As for the subsequent verdict on the willful and wanton count, the Court reiterated prior holdings that a police officer cannot be found guilty of willful and wanton misconduct when pursuing a vehicle being driven recklessly so long as the officer also does not pursue the vehicle recklessly.  The evidence in the case at bar showed the officer never exceeded the speed limit, slowed at intersections, and had his lights and siren activated.  These findings were sufficient to negate a finding of willful and wanton misconduct. 

The Court further noted that Plaintiff failed to prove a proximate cause between his injuries and the police officer's pursuit as the driver's decision to hop the curb onto the sidewalk was independent of the pursuit and not made necessary by it.  The Court noted that to hold otherwise would encourage reckless conduct by those who flee the law, as the more recklessly they drove, the less likely the officer would be to pursue them and face the prospect of civil liability for any resulting injuries.  Wade v. City of Chicago, Case No. 1-04-0642.

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