Borrowing employer to reimburse loaning employer for workers’ compensation benefits paidBy Shaun M. FalveyWorkers’ Compensation Law, September 2008In Surestaff, Inc. v. Open Kitchens, Inc., (No.1-06-3225), Fifth Division (July 25, 2008), the appellate court held that the jury was properly instructed that a borrowing employer within the meaning of §305/1(a)(4) of the Workers’ Compensation Act (“the Act”) bears the burden of proving the existence of an agreement by a loaning employer to waive its right to reimbursement from the borrowing employer for workers’ compensation benefits paid to a temporary employee.
Editor’s notesBy Richard D. HanniganWorkers’ Compensation Law, September 2008Workers' Compensation updates from Editor Rich Hannigan.
Employee seeking to include per diem in average weekly wage has the burden of proving real economic gainBy Erica N. RoginaWorkers’ Compensation Law, September 2008In United Airlines v. Workers’ Compensation Commission, 382 Ill.App.3d 437, 887 N.E.2d 888 (1st Dist. 2008), Justice Hoffman, writing for a unanimous court, vacated the Commission’s calculation of the petitioner’s average weekly wage, finding that the per diem paid to the petitioner is not to be automatically included in the average weekly wage, but rather, as a workers’ compensation claimant, the petitioner must meet her burden of proof on this issue by establishing that she actually realized an economic gain.
Section 12 Medical Examination Reports: Admissible as admission against interest?By William R. GallagherWorkers’ Compensation Law, September 2008For those of us who represent employees in workers’ compensation cases, it has been a common practice to have the employer or workers’ compensation insurer obtain a Section 12 examination by a physician of their choosing, the primary purpose of which is to obtain an expert medical opinion as to what might be one or more disputed issues, namely, is the employee still temporarily totally disabled; is there a medical causal relationship between the accident or repetitive trauma and the condition in question; is additional medical care/treatment necessary, etc.
When should an application for dedimus postestatem be granted?By John W. PowersWorkers’ Compensation Law, September 2008According to Rules Governing Practice Before the Workers Compensation Commission, evidence depositions of any witness may be taken before hearing only upon stipulation of the parties or upon a dedimus potestatem order. 50 Ill. Adm. Code 7030.60(a) (2008).
The Commission giveth and the Appellate Court taketh awayBy Kevin S. BothaWorkers’ Compensation Law, June 2008In Beelman Trucking v. IWCC (2008 WL 901460), the appellate court reversed the Commission’s award of both §8(e)(10) and statutory PTD under §8(e)(18), holding that the Commission does not have the power to award benefits for specific losses of permanent partial disability as well as permanent total disability resulting from the same accident.
Extra scrutiny revisitedBy Richard D. HanniganWorkers’ Compensation Law, June 2008The S&H Floor Covering Inc. v. Illinois Workers’ Compensation Commission decision affirmed that it may be time to give credence to Cook v. Industrial Commission and provide for “an extra degree of scrutiny” when determining whether there is sufficient support for the Commission’s decision especially when the Commission makes credibility determinations regardless of the arbitrator’s findings.”
Sanctions at the Circuit Court LevelBy Richard D. HanniganWorkers’ Compensation Law, June 2008Rarely will the courts allow sanctions pursuant to Supreme Court Rule 137.
Workers’ compensation benefits, FMLA, and retaliatory dischargeBy Kevin LeFevourWorkers’ Compensation Law, June 2008The recent Seventh Circuit decision of Dotson v. BRP US Inc., 520 F.3d 703; 2008 U.S.App.LEXIS 5897 (7th Cir., 2008) may not be a statement of new law; however, it does provide detailed guidance for employee discharge cases involving workers’ compensation claims under Illinois law and the Family Medical Leave Act (“FMLA”).
Personal comfort doctrineBy Brad A. AntonacciWorkers’ Compensation Law, March 2008This article will analyze the personal comfort doctrine in relation to both the “in the course of” and “arising out of” requirements. This article will also review the case law regarding the personal comfort doctrine and illustrate recent Illinois Workers’ Compensation Commission decisions with respect to the personal comfort doctrine.
Recent cases involving utilization reviewBy Kevin MechlerWorkers’ Compensation Law, March 2008The 2005 amendments to the Illinois Workers’ Compensation Act included the provision for utilization review to evaluate proposed or provided health care services to determine the appropriateness and necessity of those services. 820 ILCS 305/8.7.
Street risk or positional risk?By Bradford J. PetersonWorkers’ Compensation Law, March 2008Issues of compensability for claims of traveling employees often involve a distinct analysis as compared to other classes of employees. The recent case of Potenzo v. Illinois Workers’ Compensation Commission created a further distinction, not just as to traveling employees, but further applied a concept of positional risk for traveling employees subject to an assault.
Private investigator’s actions lead to invasion of privacy claimBy Michael R. LiedLabor and Employment Law, February 2008Private investigators can be a helpful tool for business. However, it is important to assure that the investigation does not cross over the line to create an invasion of privacy.
Attorney signature on appeal bond not sufficientBy Mark CosiminiWorkers’ Compensation Law, December 2007Section 19(f) of the Act sets forth the requirements for seeking a judicial review of a Commission decision and states in part.
The policy, the whole policy and nothing but the policyBy Kristen A. WadiakWorkers’ Compensation Law, December 2007In a recent case of first impression, the Fifth District Appellate Court of Illinois decided that the Defendant, an insurance company, was not allowed to pick and choose which parts of their uninsured policy were applicable regarding issues of workers’ compensation setoffs.
A tort plaintiff, but no defendantBy Michelle L. LaFayetteWorkers’ Compensation Law, December 2007To the workers’ compensation practitioner, it is well-established a worker can only seek compensation from his employer pursuant to the provisions of the Workers’ Compensation Act or the Occupational Diseases Act for injuries arising out of and in the course of his employment. See, 820 ILCS 305/1 et seq.
Private investigator’s actions lead to invasion of privacy claimBy Michael R. LiedLabor and Employment Law, November 2007Private investigators can be a helpful tool for business. However, it is important to assure that the investigation does not cross over the line to create an invasion of privacy.
Exclusive remedy updateBy Brad E. BleakneyWorkers’ Compensation Law, September 2007We are all familiar or should be familiar with the exclusive remedy provisions of the Act. Section 5(a) of the Workers Compensation Act specifically provides that payment under the Act shall be the exclusive remedy for an injured employee:
Waiver of Section 5b lienBy Richard D. HanniganWorkers’ Compensation Law, September 2007Did you use to worry that you waived your Section 5 lien when you entered into a settlement contract?
