Illinois Appellate Court Limits Uninsured Motorist Claim for Workers’ Compensation Benefit Claim – Burcham v. West Bend Mut. Ins. Co.

446352_coffee_ring.jpgAn Illinois employee who was involved in a car accident during the course of his employment sought to recoup payments from both his employer’s workers’ compensation policy and its car insurance policy. When the insurance company denied his claims, the employee filed a lawsuit in order to recoup those costs. And while the Illinois Appellate Court allowed some of the plaintiff’s claims, it denied others in Burcham v. West Bend Mutual Insurance Co., 2011 IL App (2d) 101035.

In 2007, the plaintiff, Curtis Burcham, was driving a truck for his employer, P&M Mercury Mechanical Corporation (P&M), when he was struck by an uninsured motorist. Burcham sustained multiple injuries from the truck accident and had to undergo several surgeries. Because the accident occurred while Burcham was working, his employer, P&M, paid for his medical expenses and lost wages out of its workers’ compensation policy. To date, P&M has paid $490,000 for medical expenses, more than $100,000 for temporary-total incapacity, and continues to pay $925 per week based on Burcham’s 2/3 weekly wage.

P&M also had an uninsured and underinsured motorist policy through West Bend Mutual Insurance Company. Since the other driver involved in Burcham’s truck accident was not insured, he sought to receive additional payments from West Bend under P&M’s truck insurance policy. However, West Bend denied the claim, citing a provision in its policy that it “will not pay for any element of loss if a person is entitled to receive payment for the same element of loss under any worker’s compensation, disability benefits or similar law.” West Bend’s position was that since Burcham was already receiving workers’ compensation payments for the truck accident that he was not entitled to any money from West Bend’s uninsured motorist policy.


To support his argument, Burcham cited an a different provision in West Bend’s policy that stated that “no one will be entitled to receive duplicate payments for the same elements of loss under this coverage form and any liability coverage form, medical payments coverage, endorsement or underinsured motorists’ coverage endorsement attached to this coverage part.” Burcham argued that while he might not be entitled to the damages already covered by P&M’s workers’ compensation policy, that he was entitled to receive additional payments from West Bend.

The trial court agreed with Burcham and ordered West Bend to pay for the following elements of loss:

  1. disfigurement not awarded in his worker’s compensation claim;
  2. loss of a normal life;
  3. increased risk of future harm;
  4. pain and suffering;
  5. the discounted amount of the medical expenses totaling $188,524.96 pursuant to Wills v. Foster;
  6. loss of earnings in excess of the amount actually paid in the workers’ compensation claim.

West Bend appealed this decision, arguing that Burcham was not entitled to any of the above payments for his truck accident. After reviewing the case facts and the provisions of West Bend’s insurance policy, the Illinois Appellate Court upheld some, but not all, of the trial court’s rulings. The appellate court found that Burcham was entitled to collect benefits from the uninsured motorist policy for any “disfigurement not awarded in his workers’ compensation policy,” which would include claims of disfigurement, increased risk of future harm, and pain and suffering. However, the court held that Burcham was not allowed to recoup benefits for any damages that were covered under the workers’ compensation policy, including loss of a normal life, the discounted amount of his medical expenses, or any additional loss of earnings. The appellate court decision seems to be a win-win for both parties; West Bend was able to decrease its total payments to Burcham, while Burcham was still able to recover benefits above those covered by his workers’ compensation policy.

Kreisman Law Offices has been handling Illinois workers’ compensation claims for more than 36 years in and around Chicago, Cook County, and surrounding areas, including Lisle, Glen Ellyn, Rosemont, Chicago Ridge, Winthrop Harbor, Palos Hills, and Rolling Meadows.

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