Subrogation - LEF, Trial Win. Robert Ostojic obtained a defense verdict for a tow truck firm (“Client’”) at trial. Plaintiff filed suit against a Client claiming that the Client negligently caused a fire when they towed a trailer without disengaging the brakes. Plaintiff claimed that the fire damaged Plaintiff’s property in excess of $175,000. Prior to trial, Plaintiff rejected all offers of settlement and refused to accept less than 100% of Plaintiff’s claimed damages. At trial, Robert utilized the testimony of the tow truck operator and a retired public fire investigator to show that Plaintiff’s theory of the case was wrong. Judgment was entered in favor of LEF’s Client and against Plaintiff.
Coverage - LEF, prevails on Motion for Summary Judgment on a Policy’s Suit Limitation condition. Howard B. Randell and Agne Ribikauskaite successfully argued that Co-Defendants’ Third-Party Complaint was time-barred by the insurance policy’s two-year suit limitations condition. The Superior Court of Connecticut, District of Hartford, agreed with our position that the Third-Party Complaint was time-barred under the policy, which required that any action be commenced within two years of the insured’s knowledge of loss or damage. The Third-Party Complaint was dismissed with prejudice, even though the underlying Complaint had been filed after the time period had expired.
Workers’ Compensation - A Real Pain. Appellate Court Affirms Pain Caused by Pre-Existing Condition as Compensable Despite Lack of Physical Change. Petitioner alleged that working full-time as a dental hygienist for the respondent’s health department caused her to sustain a repetitive trauma injury to her left shoulder. She claimed that 85% of her work from 2005 through 2019 was cleaning and sealing patients’ teeth, which required her left arm to be elevated at a 90-degree angle with her wrist bent towards her body. The claimant testified that over time her shoulder developed pain that affected her sleep and was heightened following her work week, although she reported her pain began in 2019. She underwent multiple injections, physical therapy, and surgery. Although an MRI revealed severe rotator cuff tendinosis, subtle tears, and mild impingement of the rotator cuff, her treating physician noted that the petitioner’s repetitive work activities were a “contributory cause of pain at her left shoulder,” which could occur in “patients who have pre-existing rotator cuff pathology.” Petitioner underwent an IME and the doctor concluded Petitioner’s work activities did not aggravate or cause her rotator cuff tear and disagreed with Petitioner’s treating physician regarding whether repetitive activities without significant trauma at the waist level would permanently aggravate a shoulder condition. The arbitrator concluded that the claimant failed to prove by a preponderance of the evidence that she sustained an accident arising out of and occurring in the course of her employment and that there was no evidence in the treating medical records to support her work-related etiology.
Upon the claimant’s petition, the Commission reviewed the decision and found that she sustained a compensable injury, noting that the claimant’s condition was not the natural progression of her pre-existing condition and that the work duties aggravated her condition, as Petitioner was not receiving treatment for her shoulder prior to 2019 and her pain was alleviated by not working. The employer appealed with respect to accident and causation, the underlying issue being whether repetitive work activity that results solely in pain from a pre-existing non-work-related condition is compensable under the Act in the absence of a concomitant worsening of the underlying non-work-related condition. This was an issue of first impression in Illinois.
The court held that when a pre-existing condition is asymptomatic and then becomes painful as the result of work-related activity, the condition is compensable. This is true even in the absence of any organic or structural change in the preexisting condition. It noted that other than the natural progression of pre-existing conditions, the condition is aggravated by something and that the pain suffered is a compensable aggravation of the pre-existing condition and that the claimant satisfied her burden to set forth sufficient evidence that her work activities were a contributing factor to her left shoulder pain. Tazewell County v. IWCC, 2025 IL App (4th) 230754WC.
Moving forward, this case serves as a reminder of the importance of a complete and thorough IME opinion. The appellate court upheld the Commission’s finding that the claimant’s increased pain was a result of her work duties as she was able to complete her tasks prior to the date of injury and had not received recent treatment. An IME report is essential in disputing this testimony and, if possible, additional expert opinion citing to an alternative source of her pain (i.e. natural progression, age, etc.) is crucial in disputing this opinion.
Insurance Coverage – UM/UIM Owned Auto Exclusion Not Violative of Illinois Public Policy. Named insureds’ adult daughter was involved in an automobile accident with an underinsured motorist while operating her vehicle which was covered under her own policy. Daughter received UIM benefits under her insurance and then sought additional recovery under her parents’ auto and umbrella policies. Both policies included an exclusion for UM/UIM coverage for any “relative” who owns an auto which is insured for UM/UIM coverage on a primary basis under any other policy. Daughter argued that the exclusion was void on public policy grounds as it operated to deny coverage to her even though she was an insured under the liability portion of her parents’ policies. While acknowledging that Illinois law mandates UM/UIM coverage, the Court noted that the Insurance Code contains an exception which allows insurers to exclude vehicles that are available for the insured’s or their resident relatives’ use that are not listed on the policy. As the State's public policy is reflected in Illinois statutes, the Court held that the exclusions were valid. The Court also rejected the daughter's arguments of waiver and estoppel finding that the doctrines could not be utilized to create coverage which does not otherwise exist. This case was handled by Patti Deuel of LEF’s coverage department. Beard v. Economy Preferred Insurance Company, 2025 IL App (1st) 231694-U.
