The City of Chicago v. The Illinois Workers' Compensation Commission, 2001 Ill. App. LEXIS 327, 947 N.E.2d 863 (1st Dist. 2011) 
By: Sean M. Abernathy - Associate - Nyhan, Bambrick, Kinzie & Lowry

Updated: June 28, 2011


The Petitioner, a laborer in the sewer department, was diagnosed with acute sciatica and a herniated disk at L4-L5 after pushing a wheelbarrow full of bricks. It was not disputed that the accident arose out of and in the course of Petitioner’s employment. Petitioner underwent a microdiscectomy at L4-L5 and a subsequent microdiscectomy at L3-L4. He was then released to medium duty and full duty work following a course of work hardening. After returning to work, a trench Petitioner was working in partially collapsed on him. Petitioner did not immediately seek medical care, but sought attention for pain in his lower back 23 days later. Petitioner received a course of epidural steroid injections and eventually returned to medium duty work following some 11 months of treatment.

At trial, the Arbitrator granted permanency awards under both 8(d)(1) and 8(d)(2) for Petitioner’s injuries, citing Consolidated Freightways v. Industrial Commission, 604 N.E.2d 962 (1992) for support. The Arbitrator noted that Petitioner’s injuries were different in nature because Petitioner had been able to return to work after the first injury, but was precluded from returning to work following the second.

On appeal, the Commission affirmed and adopted the Arbitrator’s decision. The Cook County circuit court confirmed the Commission decision. The City of Chicago then appealed to the Appellate Court. At issue was whether the Commission erred in awarding PPD benefits under both 8(d)(1) and 8(d)(2) for the same condition of ill being. Also argued was whether the Commission erred in awarding medical expenses based on the proofs presented and whether the Commission erred in awarding Petitioner penalties and attorney fees for unreasonable delay in payment of benefits.

As to whether the Commission erred in awarding PPD benefits under 8(d)(1) and 8(d)(2), the court found that Petitioner was not entitled to an award under both sections for the same condition of ill being. The court held:

Where a claimant has sustained two separate and distinct injuries to the same body part and the claims are consolidated for hearing and decision, unless there is some evidence presented at the consolidated hearing that would permit the Commission to delineate and apportion the nature and extent of permanency attributable to each accident, it is proper for the Commission to consider all the evidence presented to determine the nature and extent of the claimant’s permanent disability as of the date of the hearing.

The court found that Petitioner presented evidence of one condition of ill being, which could only be compensated either as a percentage of the person as a whole or as a wage differential. Thus, the court vacated the award under 8(d)(2). The court also affirmed the award of penalties and attorney fees, and reversed the award of medical expenses. The issue of medical expenses was remanded to the Commission for further proceedings.


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