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Newsletter articles from 2008
Borrowing employer to reimburse loaning employer for workers’ compensation benefits paid
In 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.
The Commission giveth and the Appellate Court taketh away
In 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.
Unless you have been out of the country or in a coma this is not news to you.
The ISBA Section Counsel members thank John Shepherd of Williams and McCarthy (Rockford)for the dedication and leadership he has shown as chairman of our section for the past year.
Workers' Compensation updates from Editor Rich Hannigan.
The co-editors of this newsletter appreciate the positive feedback we have received for each issue that we have produced.
Employee seeking to include per diem in average weekly wage has the burden of proving real economic gain
In 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.
Extra scrutiny revisited
The 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.”
Making a list and checking it twice
Parties to personal injury claims of Medicare beneficiaries who continue ignoring their duties under federal law could get a wake up call next year.
Personal comfort doctrine
This 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 review
The 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.
Section 12 Medical Examination Reports: Admissible as admission against interest?
For 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.
Street risk or positional risk?
Issues 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.
When should an application for dedimus postestatem be granted?
According 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).
Workers’ compensation benefits, FMLA, and retaliatory discharge
The 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”).