WCLA MCLE 1-22-13
• Two Plus Two: 2 Appellate Court Decisions & 2
Arbitration Decisions: Traveling Employee,
Transcript on Review & AMA Guides
• Tuesday January 22, 2013
• 12:00 pm to 1:00 pm
• James R. Thompson Center , Chicago, IL
• 1 Hour General MCLE Credit
Ronald Daugherty v. The Venture-Newberg
06 WC 018366
• Arbitration Decision 4-18-08
• DA 3-24-06
• Union pipefitter injured in MVA on way from
motel to job site
• “Further, Petitioner was not a traveling
employee of Newberg…Petitioner was not
required to accept the Newberg job at the
Cordova Plant under the union contract. Rather it
was his voluntary choice to take the job outside
local union territory, which would require travel
and temporary lodging.”
Ronald Daugherty v. The Venture-Newberg
10 IWCC 0752
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Commission Decision 8-5-10 (2-1): “The Commission views the evidence and applicable law differently and
finds that Petitioner sustained an accident arising out of and in the course of his employment…”
An employee will be considered in the course of employment while traveling to or from work if the course
or method of travel is determined by the demands or exigencies of the job rather than by his own personal
preference as to where he chooses to …Another exception to the general rule is that of the traveling
employee.…It has been held that injuries are compensable where traveling employees were engaged in
activities other than those they were specifically instructed to perform by their employers. A traveling
employee is one who is required to travel away from the employer's premises in order to perform his job.
The key factors to this test are 'reasonableness' and 'foreseeability’ of the activity the employee was
performing when he was injured.
In the Commission's view, Petitioner was in the course of his employment while traveling to work on the
date of the accident since the course or method of travel was determined by the demands or exigencies
of the job, rather than by his own personal preference …multiple witnesses, including Petitioner, testified
consistently regarding the exigencies of the job. Although Respondent did not demand that Petitioner
lodge within a certain distance from the plant in order to perform the work that was required, Petitioner
had to stay, as a practical matter, a reasonable commuting distance from the plant.”
Respondent could not meet its obligations under the General President's Agreement for Maintenance
Contract with Exelon were it not for the willingness of employees like Petitioner to work long hours and
make themselves available in the event of an emergency.
The Venure-Newberg-Perini v. IWCC
2010 MR 509
• Circuit Court Seventh Judicial Circuit, Sangamon
County, 8-28-11
• Undisputed facts
• “Misapplied the law to the facts…decision of the
Commission is improper as a matter of
law…decision of Arbitrator denying the claim is
reinstated.”
• Not “demands” of job but “personal preference”;
not a traveling employee
• “Inequitable and unjust result” (What standard of
review is this?)
The Venure-Newberg-Perini v. IWCC
2012IL App (4th) 110847WC
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Appellate Court, 12-6-12, 3-2 decision, reverses Circuit Court
Our first question, then, is whether the claimant qualified as a traveling employee.
A "'traveling employee'" is defined as "one who is required to travel away from
his employer's premises in order to perform his job." Cox v. Illinois Workers'
Compensation Comm'n, 406 Ill. App. 3d 541 (2010). It is undisputed that (1) the
claimant in this case was employed by Venture-Newberg; (2) he was assigned to
work at a nuclear power plant in Cordova, Illinois, operated by Exelon in excess of
200 miles from his home; and 3) the premises at which the claimant was assigned
to work were not the premises of his employer. These facts establish the claimant's
status as a traveling employee. (Manifest weight?)
The test of whether a traveling employee's injury arose out of and in the course of
his employment is the reasonableness of the conduct in which he was engaged at
the time of his injury and whether that conduct might have been anticipated or
foreseen by Venture-Newberg… The question is one of fact to be resolved by the
Commission, and its determination should not be disturbed on review unless it is
against the manifest weight of the evidence…In this case, the Commission found
that Venture-Newberg must have anticipated that the claimant, recruited to work
at Exelon's facility over 200 miles from the claimant's home, would be required to
travel and arrange for convenient lodging in order to perform the duties of his job,
and that it was reasonable and foreseeable that he would travel a direct route
from the lodge at which he was staying to Exelon's facility… This determination is
clearly not against the manifest weight of the evidence.
Filing Transcript on Review
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Section 19 (b): “(S)uch party petitioning for a review shall within 35 days after the receipt by
him of the copy of the decision, file with the Commission either an agreed statement of the
facts appearing upon the hearing before the Arbitrator, or if such party shall so elect a correct
transcript of evidence of the proceedings at such hearings, then the decision shall become
the decision of the Commission and in the absence of fraud shall be conclusive…The
Commission, or any member thereof, may grant further time not exceeding 30 days, in which
to file such agreed statement or transcript of evidence.
Rule 7030.40: Before a case proceeds to trial on arbitration, the parties (or their counsel)
shall complete and sign a form provided by the Industrial Commission called Request for
Hearing. However, in the event a party (or his counsel) shall fail or refuse to complete and
sign the document, the Arbitrator, in his discretion, may allow the case to be heard and may
impose upon such party whatever sanctions permitted by law the circumstances may
warrant. The completed Request for Hearing form, signed by the parties (or their counsel),
shall be filed with the Arbitrator as the stipulation of the parties and a settlement of the
questions in dispute in the case.
IC09: Both parties agree that if either party files a Petition for Review of Arbitration Decision
and orders a transcript of the hearings, and if the Commission's court reporter does not
furnish the transcript within the time limit set by law, the other party will not claim the
Commission lacks jurisdiction to review the arbitration decision because the transcript was
not filed timely.
IC11: Extend the time allowed to file the transcript or the agreed statement of facts by
30 days past the time allowed by statute or stipulation.
Roger Seymour v. Ingrassia Interior
07 WC 17047
• DA 3-24-07
• 4-11-08 Pre-trial conference on 19(b); stenographic
stipulation signed by both parties
• 6-13-08 case tried; Respondent refused to sign
stenographic stipulation
• 7-7-08 Arbitration decision filed; CASE DENIED
• 7-25-08 Petitioner files Petition for Review
• 10-9-08 Respondent files Motion to Strike (76 days)
• 11-6-08 Return date on Review issued (12-26-08)
• 12-9-08 Petitioner tenders transcript to Commissioner &
motion to strike heard
• 8-27-10 Motion to Strike DENIED
Roger Seymour v. Ingrassia Interior
07 WC 17047
• Commission Order, 8-27-10, 2-0
• Respondent’s motion to strike review of the Arbitration
Decision for lack of subject matter jurisdiction is denied
• Walker, 345 Ill.App. 3d 1084 (2004): stenographic
stipulation bound Respondent and trumps statutory
provision under Rule 7030.40
• Contreras, 306 Ill.App.3d 1071 (1999): stipulation preserves
Commission’s jurisdiction
• Lane, 06 IWCC 805: due diligence is important
• Why is denial of motion to strike reviewable? Why is it not
interlocutory?
Ingrassia Interior v. IWCC
2010 MR 644
• Seventeenth Judicial District, Winnebago County, 6-30-11
• “Stenographic stipulation is recognized as an approved means to
waive the objection to the untimely filing” of the transcript
• Respondent objected and was “in no way” bound by stenographic
stipulation
• In the absence of stipulation, the filing date of the transcript cannot
be extended to Return Date on Review
• Commission erred in denying Motion to strike; “GRANTED”(?)
• Decision of Arbitrator is final [19 (b): “shall become the decision of
the Commission and in the absence of fraud shall be conclusive”;
19(f): “the decision of the Commission shall, in the absence of
fraud, be conclusive unless reviewed…”]
Ingrassia Interior v. IWCC
2012 IL app (2d) 110670WC
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Appellate Court, 12-10-13, 5-0 (special concurrence)
Circuit Court reversed; decision of the Commission reinstated; remanded to IWCC for further proceedings
The sole issue before this court is whether the fact that a transcript was not filed within the time period specified in section
19(b) of the Act deprives the Commission of jurisdiction to review the decision of the arbitrator. Under the circumstances of
this case, we conclude that it does not. Generally, we apply the de novo standard when we review a jurisdictional issue.
However, in this case, the meaning of an administrative regulation is also at issue. We owe substantial deference to an
agency's construction of its own regulations…courts afford considerable deference to the interpretation placed on a statute
by the agency charged with its administration…This is true regarding even questions of jurisdiction. Thus, where reasonable
minds could disagree as to the extent of an agency's jurisdiction, we defer to the agency's interpretation if the interpretation
is defensible.
Nothing in this provision speaks to when a "request for hearing" form—and the stenographic stipulation contained
therein—becomes binding. …"request for hearing" form consists of what are essentially requests for evidentiary admissions
intended to limit the issues that are in dispute. It would be an odd rule indeed that would allow a party to recant such an
admission on the eve of a hearing… In sum, the Commission's construction of section 7030.40 is reasonable. Nothing in the
plain language of the section conflicts with the Commission's interpretation, and the interpretation is entirely consistent
with contract law. Accordingly, the trial court should have deferred to it… [T]he court should defer to the agency's
interpretation if the interpretation is reasonably defensible.
Concurrence: I write separately in order to state my position that our supreme court's holding in Pocahontas Mining , 301 Ill.
462,(1922), is directly on point in the instant matter. The court in Pocahontas observed that, when the term "jurisdiction“ is
utilized in discussing a question of filing of the transcript before the Commission, the term does not refer to the power of a
court to hear cases but, rather, the term describes "the statutory authority given to [the Commission] to hear and consider
cases under the Compensation act.”…In the instant matter, we could not be clearer in our holding than to repeat the words
that our supreme court pronounced in 1922. It cannot be doubted and certainly will not, for a moment, be questioned that
the Commission had subject matter jurisdiction and did not lose that jurisdiction simply because the transcript was not filed
within the time period required under the Act.
820 ILCS 305/8.1b
Determination of Permanent Partial Disability
For accidental injuries that occur on or after September 1, 2011, permanent partial disability
shall be established using the following criteria:
(a) A physician licensed to practice medicine in all of its branches preparing a permanent partial
disability impairment report shall report the level of impairment in writing. The report shall
include an evaluation of medically defined and professionally appropriate measurements of
impairment that include, but are not limited to: loss of range of motion; loss of strength;
measured atrophy of tissue mass consistent with the injury ;and any other measurements
that establish the nature and extent of the impairment. The most current edition of the
American Medical Association's "Guides to the Evaluation of Permanent Impairment" shall be
used by the physician in determining the level of impairment.
(b) In determining the level of permanent partial disability, the Commission shall base its
determination on the following factors: (i) the reported level of impairment pursuant to
subsection (a); (ii) the occupation of the injured employee; (iii) the age of the employee at the
time of the injury; (iv) the employee's future earning capacity; and (v) evidence of disability
corroborated by the treating medical records. No single enumerated factor shall be the sole
determinant of disability. In determining the level of disability, the relevance and weight of
any factors used in addition to the level of impairment as reported by the physician must be
explained in a written order.
AMA Guides Commission Decisions
• Frederick Williams v. Flexible Staffing, Inc. 11WC046390
• Zachary Johnson v. Central Transport 11WC041328
• ALL CASES AVAILABLE AT www.wcla.info (MCLE EVENT ARCHIVE;
11-12-12) http://www.wcla.info/mcle_archive.php
CASES W/O AMA:
Jaelene Bryan v. Pinckneyville Correctional Center 11WC047483
Terrence Davis v. City of Springfield 12WC009378
Terry Wadkins v. Pinckneyville Correctional Center 12WC002866
Cheryl Edwards v. State of Illinois (Murray Center) 12WC007449
Ricky Belton Lee, Jr. v. Chester Mental Health Center 11WC041595
Derek Richardson v. Tamms Correctional Center 12WC008263
Scott Day v. City of Bloomington 11WC047768
Shawn Dorris v. Continental Tire
11WC046624
• DA 9-18-11
• 38 yo tire press operator
• Left wrist arthroscopy for repair of peripheral TFCC tear by Dr. David
Brown
• “At the request of Respondent’s counsel, Dr. Brown prepared a
permanent partial disability impairment report dated August 27,
2012”
• (i) 6% upper extremity impairment (report admitted)
• (ii) press operator is “labor-intensive job”
• (iii) “somewhat younger”… “PPD more extensive”
• (iv) no alleged future earning capacity impact
• (v) loss of motion; pain; loss of strength; home activities
• 13% loss of use of the hand
Jeffrey Garwood v. Lake Land College
12WC004194
• DA 9-12-11
• 54 yo vocational computer instructor
• Left knee arthroscopy medial & lateral meniscus tears (debrided) &
chondromalacia (chondroplasy & synovectomy)
• “Petitioner was examined by Dr. Joseph T. Monaco at Respondent’s
request on August 3, 2012…provided an impairment rating”
• (i) 8% impairment of lower extremity (Closely deposed: “The
Arbitrator notes these concessions by Dr. Monaco”)
• (ii) Now instructor in construction occupations
• (iii) No evidence as to impact of age
• (iv) Could be issues with accommodations if he were to lose job
• (v) Credible testimony as to pain and stiffness; corroborated by
diagnoses and need for surgery; objectively corroborated by IME
• 20% loss of use of the left leg