Illinois Workers Compensation Lawyer Blog

In May of 2000, coal miner Kenneth Van Houten died of a heart attack at the age of 61. Van Houten worked as a coal miner for 38 years where he was exposed to coal dust. He last worked as a miner in February of 1998 and filed a claim in 2000.

An Application for Adjustment of Claim was filed with the with the Illinois Workers' Compensation Commission, by his widow Artis.

The arbitrator ruled that Van Houten's death was a direct result of his exposure to coal dust over his 38 years of mining and that his lung disease was a causative factor in his death. Benefits were awarded as well as $4200 in funeral expenses.

The case was affirmed on appeal by the Commission, the circuit court and the appellate court.

Continue reading " Illinois Workers' Compensation Commission erred by finding miner's claim was abated " »

The Illinois Supreme Court resolved an issue about workers' civil lawsuits resulting from on-the-job injuries or deaths.

In the 2000 reconstruction of a bridge over the Illinois river, Springfield based Halvorson Construction Co and Tremont-based Midwest Foundation formed a joint venture which was called the Midwest Foundatin/Halvorson.
Under the joint venture agreement, Midwest Foundation paid the premiums for workers' compensation coverage. Midwest was to be reimbursed for the premiums by the joint venture.

On April 24, 2000, during the reconstruction, scaffolding broke away from the bridge. One worker was killed and three others were injured. The workers and their survivors received benefits under the Illinois Workers' Compensation Act.

Several of the workers injured filed lawsuits to collect civil damages from Halvorson and the joint venture.

The opinion written by Justice Lloyd Karmeier for the majority said that such lawsuits should not proceed. Under a joint venture an injured worker can collect workers' compensation benefits, but cannot file a civil suit against the joint venture, or any partner of the joint venture. They are covered under the immunity that extends to the employer paying workers' compensation benefits.

Dissenting Justice, Thomas Kilbride believes there were questions about whether Midwest Foundation was ever reimbursed for the premiums they paid. According to Justice Kilbride, "a lack of reimbursement could open the door for the filing of a civil lawsuit."

According to an Illinois state appeals court, an employer cannot deny permanent total disability benefits for undocumented workers on the basis that their illegal status would keep them from working in the U.S. legally.

On December 12, 2008, the 1st Judicial District Appellate Court said the 1986 Immigration Reform and Control Act does not preclude the payment of workers' compensation benefits to undocumented workers.

In May of 2002, Ramona Navarro, a Mexican national, slipped and hurt herself wile working for Economy Packing Co. An arbitrator of the Illinois Workers' Compensation Commission awarded Navarro 60 weeks of Temporary Total Disability benefits and Permanent Total Disability benefits for life. Navarro was also found to be an "odd-lot" worker, which meant she was permanently and totally disabled from doing her former job. Due to her limited skills she was unable to find other work.

The Illinois Workers' Compensation Commission agreed and the trial court upheld the decision. Economy Packaging appealed the decision arguing that "undocumented aliens" are unemployable because of their illegal status and regardless of their physical capabilities.

According to Economy, Navarro needed to prove that she was unemployable based on her age, training, education and experience in order to receive benefits under the odd-lot theory.

The appeals court disagreed. Navarro would still be able to work elsewhere had she not been injured while working for Economy even though immigration laws prevented Navarro from working legally in the U.S.

Additionally, the employer has the burden of providing "sufficient evidence that suitable jobs would be regularly and continuously available to the undocumented alien but for her legal inability to obtain employment."

A measure to assure privacy protections for genetic testing and to prohibit employers from discriminating against workers based on the results of genetic testing, takes affect Jan 1, 2009.

Senator Terry Link, D-Lake Bluff and Rep. Kathleen Ryg, D-Vernon Hills, sponsored SB 2399. The bill also requires consistency with federal law in the use of genetic testing by employers, employment agencies and labor organizations.

"Genetic testing and genetic information derived thereof shall be admissible as evidence and discoverable, subject to a protective order, in any actions alleging a a violation of this act, seeking to enforce Section 30 of this act through the Illinois Insurance Code, alleging discriminatory genetic testing or use of genetic information under the Illinois Human Rights Act or the Illinois Civil Rights Act of 2003, or requesting a workers' compensation claim under the Illinois Workers' Compensation Act."

A number of jurisdictions have taken action to restrict or stop genetic testing in the workplace. The use of such testing in employment and workers' compensation has created quite a controversial issue in recent years.

The Equal Employment Opportunity Commission settled a case involving genetic testing, with the Burlington Northern Santa Fe Railway for $2.2 million.

Burlington, together with medical exams, conducted undisclosed genetic testing, after the number of carpal tunnel syndrome claims filed by their employees increased.

According to Burlington, they had instituted the testing to comply with Occupational Safety and Health Administration workplace rules.

Employers may find the decision to conduct genetic testing increasingly difficult. The technology available to employers to determine an employee's predisposition to disease could help avoid OSHA violations as well as lawsuits alleging negligence in the employer providing a safer workplace.

However, employers who use genetic testing run the risk of violating workers rights under several state and federal statutes. Laws do allow pre-employment testing to determine if an applicant can perform a particular job or to determine if the application could be harmed by the job. However, excluding an applicant who may be "genetically sensitive" to a disease or injury could be considered discriminatory and a violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act.