NEWSLETTER - July 2006

Back to Newsletter Index...

July 2006

---

• Firm Happenings
• Illinois Workers Compensation Commission Update
• Case Law Updates
  1. Fall From Chair Turns Out To Be Petitioner's Problem, Not Employer's
  2. Wet Leaves In Employer's Parking Lot Constitute Hazardous Condition
  3. Cubs Win! Cubs Win! – In Appellate Court

---

Firm Happenings

As recently reported, Grace DiGerlando has re-joined the firm, following a temporary relocation to Michigan and her recent return to the Land of Lincoln. Grace will be handling cases in Chicago and in Carlinville. Please refer to our Venue link on the website for an updated list of our attorneys and the venues they cover.

Also, our Attorneys link now contains our pictures! When you click on the link for one of our attorneys you can now see who you are working with, as well as their contact information and educational and professional background.

Finally, on the litigation front, we have continued our streak of success at the Illinois Worker's Compensation Commission. Tom Fitzgibbons recently obtained a favorable decision from the Commission in Holt v. American Engineering, reversing an Arbitrator's award against our insured, in a case discussed below in the Case Law Update.

Also, Scott McCain received a favorable decision from Arbitrator Black, refuting a claim for permanent total disability. In that case, the petitioner sustained a triceps muscle herniation which was surgically repaired after a shelving unit fell on it. After surgery, the petitioner developed a stretch injury to the right radial nerve which developed into a right radial neuropathy.

The petitioner was subsequently referred to pain management and the treating physician imposed a permanent three pound lifting restriction. We obtained vocational rehabilitation expert testimony that the petitioner did not exhibit a good faith effort to find employment, and also that it was reasonable to believe that the petitioner could find employment earning eight to ten dollars an hour, consistent with her pre-injury wages.

The petitioner pursued a permanent total disability award at trial, on which the exposure, if awarded, exceeded $700,000.00. Prior to trial, the petitioner had made a settlement demand of $250,000.00. Following trial, Arbitrator Black agreed with Scott's argument that the petitioner did not meet the burden of proof required to establish an award of permanent and total disability benefits. Instead, he entered an award of 100% of the arm, totaling $62,238.00.

---

Illinois Workers Compensation Commission Update

The Commission recently named the three additional Commissioners called for in the Amendments to the Act passed last year, who will help form a third panel before whom Reviews of arbitration decisions are heard. This will work to expedite the Review hearing and oral argument process and ease the current backlog of cases pending on Review.

The new Commissioners are David Gore as the Employee representative, Yolaine Dauphin as the Public representative and Nancy Lindsay as the Employer representative. The Governor also re-appointed Commissioners Sherman and Rink to new terms. All of these appointments require Senate confirmation.

Anticipating that, the Commission has shuffled the panels so that new Commissioners are seated with experienced members on each of the three panels, which are expected to begin hearing Reviews as of August 1, 2006. The proposed panels are as follows:

• Panel A: Pigott, DeMunno, Lindsay
• Panel B: Sherman, Dauphin, Ulrich
• Panel C: Gore, Rink, Basurto

---

Case Law Update

Fall From Chair Turns Out To Be Petitioner's Problem, Not Employer's

In Patrick Holt v American Engineering, the petitioner had a compensable accident against American Engineering. He sustained significant injuries and permanent restrictions as a result of that accident. While receiving vocational rehabilitation for that injury he was sent to a job interview. While at the interview Mr. Holt fell off of the chair he was sitting on. He then filed a new application alleging that incident as a new accident.

American Engineering was insured by another insurer at the time of the second alleged accident and was defended by Tom Fitzgibbons on that claim. At arbitration the first respondent was found liable for an award of 65% of a man as a whole. As to the second respondent, the arbitrator found that the petitioner sustained a compensable accident while falling off of the chair while on a vocational rehabilitation directed job interview. The arbitrator awarded 3 4/7 weeks of TTD against the second respondent.

Both cases were reviewed to the Workers' Compensation Commission. On review, the award against the first respondent was upheld. As to the second respondent, however, Tom argued that the petitioner failed to prove an increased risk as to the chair he was sitting on and thus that the petitioner failed in his burden of proof on the issue of accident. The Commission agreed, and the arbitrator's decision against the second respondent was reversed, with a finding that the petitioner failed to prove that his accident arose out of and in the scope of his employment.

Wet Leaves In Employer's Parking Lot Constitute Hazardous Condition

Adding to the caselaw of what constitutes a hazardous condition in an employer-controlled parking lot, the Commission has recently found that an accumulation of wet leaves that causes or contributes to an accident can constitute an accident arising out of and in the course of the employment. In Kincaid v. Household Finance, the claimant testified that she slipped and fell on wet leaves after parking her car in a lot and walking toward the entrance of her employer's workplace. The parties stipulated that the claimant was instructed to park in the lot by her employer and that the employer provided maintenance for the parking lot.

The employer argued that there was no defect or hazardous condition in the parking lot and that the claim was not compensable. The Commission disagreed, citing caselaw that a slip or fall in a lot provided and controlled by the employer is generally compensable when hazardous conditions are present. The Commission noted that leaves accumulated in the parking lot from trees surrounding the perimeter of the property, and in combination with the rain on the morning of the accident resulted in a hazardous condition that caused the petitioner's injuries.

Cubs Win! Cubs Win! – In Appellate Court

A former assistant trainer for the Chicago Cubs brought a retaliatory discharge claim against the Cubs after the team failed to renew his contract after it expired in December 2004. The trainer claimed that he was not retained after he reported improprieties in the licensing of the head trainer, along with other allegations of the head trainer's improper activities. Plaintiff was employed per a written contract that expired on December 17, 2004. After the season ended in October of that year, he was advised that his services were not going to be needed, but the Cubs paid his wages until the contract expired.

Plaintiff's claim was dismissed on motion of the ball club's attorneys, and on appeal the dismissal was upheld. The Appellate Court held that no Illinois case has found retaliatory discharge for employees with fixed duration employment contracts, as opposed to at-will employees. Further, the Court reiterated that a retaliatory discharge claimant must allege and prove that he was discharged in retaliation for activities protected by statute, or that the discharge violates a clear mandate of public policy. Although Plaintiff's employment was guided by the Athletic Trainer's Practice Act, the Court found nothing in the statute prohibiting retaliatory conduct, and that the tort of retaliatory discharge is very narrowly construed.

Newsletter Archives:

Newsletter Index

2008 November June 2007 October February

2006 December September August July June May April March

See also more recent posts on our blog: http://inmanfitzgibbons.wordpress.com