Illinois Workers Compensation Lawyer Blog

A Federal court recently approved a ADA payout by Sears in the amount of $6.2 millions. The EEOC filed a lawsuit aganst Sears alleging that the Sears' policy of terminating employees instead of providing them with a reasonable accommodation for their disabilities was in violation of the Americans With Disabilities Act.

The case was filed by the Equal Employment Opportunity Commission on behalf of John Bava, a Sears service tech. Bava was injured when he fell down a flight of stairs while at a customer's home. Bava's took leave according to Sears' rules and while he was still disabled by his injuries, attempte, on several occasions, to return to work. Sears would not accommodate his physical restrictions.

Instead, after Bava exhausted his leave time, Sears terminated him.

Continue reading "Federal court approves a $6.2 million settlement against sears" »

Harry Shuford, the chief economist at the National Council on Compensation insurance moderated a panel of insurance industry leaders. The panel addressed the issue of the effect the recession would have on Workers' Compensation. The panel concluded that a recession tends to place downward pressure on exposure. Their findings were told to attendees during the Casualty Actuarial Soeciety's ratemaking and product management seminar.

According to Shuford, recessions cause a decrease in employed workers. Wages continue to grow but at a much slower pace.

"In the first two of the three most recent recessions, claim frequency dipped dramatically," he said. "In the most recent recession of 2001, the downturn was already under way, and there was an increase in the rate of decline."

Continue reading "Recession expected to have mixed impact on Workers' Compensation insurance market" »

The Illinios Workers' Compensation Commission awarded medical expenses and temporary total disability benefits to an injured worker for multiple foot fractures and a plantar fasciitis condition. Also, the commission affirmed the aribtrator's assessment of penalties and attorney's fees for the employer's failure to pay temporary total disability benefits

The employee worked for the employer installing and servicing satellite dishes and receivers. On the date of the accident, the claimant fell 25 feet off a ladder while performing an installation, causing multiple fractures to his left heel. He also developed plantar fasciitis. The arbitrator awarded $512 in medical expenses and 38 weeks of temporary total disability benefits.

Continue reading "Illinois employer's promise to pay benefits triggers penalties" »

Citing the rising cost of workers' compensation claims from city workers, Berwyn Mayer Michael O'Connor has made the decision to ban firefighters from using exercising equipment while on duty.

According to O'Connor, Berwyn has paid $6 million in claims for all municipal deparments.

Stephen Petergal, 51, sustained a hernia while walking on a treadmill at the firehouse. Shortly thereafter, O'Connor banned of the use of exercise equipment to prevent further injuries from occurring.

Petergal is the first firefighter to sustain an injury on city exercise equipment. The Berwyn Firefighters Union Local 506 said the 24 hour shifts make it difficult for their members to maintain a regular exercise program.

A grievance has been filed against O'Connor.

Our thoughts: An out of shape firefighter runs a much larger risk of sustaining a serious injury. No, other city workers don't exercise while on duty, but how many other city workers run into burning buildings, up countless flights of stairs wearing hundreds of pounds of equipment? What was the mayor thinking?

Certified Painting Company in Alsip Illinois was fined $225,000 resulting from 17 citations by OSHA.

OSHA cited Certified painting for 8 willful and 9 serious violations involving workplace safety.

According to OSHA, Certified Painting was cited for allegedly failing to provide adequate carbon monoxide monitors, to provide and make sure that their workers were wearing protective clothing, to provide hygiene facilities and to ensure their employees were following the proper hygiene procedures after being exposed to lead and other hazardous materials. They also failed to provide US Coast guard life jackets and have available a lifesaving skiff where their employees were working over or near water.

They were cited for not providing fall protection equipment on scaffolding and for not maintaining a safety and health program. They failed to conduct regular inpsections of their job sites by a qualified person and failed to properly train their employees being exposed to hazardous materials.

Certified Painting Company performs industrial construction throughout the State of Illinois

The company has 15 days to contest the citations.

Legislation has been filed to change existing workers' compensation law to provide that an employee's injury is compensable only when a work accident is the "prevailing factor" in causing the injury and any disability resulting from the accident. Illinos Rep. David Reis, R-St. Marie, filed the legislation which he had done in previous legislative sessions, but without sucsess.

According Reis, workers' compensation insurance rates are too high. He believes that changing the requirement for compensability of an injury would have an affect on the cost of workers' compensation rates.

Jason Keller, the legislative director for the AFL-CIO believes that the legislation will not proceed in this session. "This did not go through an agreed-bill process," Keller told said. "I suspect it will not go anywhere." The agreed bill process involves both business and labor interests to sit down and agree on issues that affect workers' compensation.

Under HB 58, an "injury" would be defined as "an injury that has arisen out of and in the course of employment. An an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disabilty."

The definition of "prevailing factor" is "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability," according to HB 58.

The bill provides that an injury resulting "directly or indirectly from idiopathic (ie., obscure or unknown) causes is not compensable."

Reis said high workers' compensation costs are causing businesses to leave Illinois. Illinois premiums are 2 to 3 times higher than for similar businesses in neighboring states.

Jay Dee Shattuck, head of the Illinois Chamber Employment Law Council, says that Illinois employers would continue to challenge the current workers' compensation system including high rates.

According to Shattuck, the most problematic area of the system is in determining the compensability of a claim.

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.

The Illinois Workers' Compensation Commission held that the employer was responsible for temporary total disability benefits for an extended period while the worker was awaiting recall from a temporary layoff. The Commission awarded 173 weeks of TTD benefits and found the employee disabled to the extent of 40% of a person as a whole pursuant to Section 8(d)(2) of the WCA.

Where the employer fails to take any action after the employee's layoff from restricted work and the employee fails to look for employment for an extended period because he is awaiting recall by the employer, the employer is responsible for TTD payment, as it was the employer that caused the long absence from work.

Continue reading "IIllinois employer responsible for TTD benefits" »

The Illinois Workers' Compensation Commission held that and Illinois worker's permanent disability award was limited to 5% loss of use of a person as a whole pursuant to Section 8(d)(2) of the Illinois Workers' Compensation Act.

After returning from an out-of-town family emergency, the worker chose not to work for the defendant. Also, the worker failed to prove a permanent inability to return to his former job.

Where a worker no longer has light-duty work restrictions, the fact finder will not assume that the employer would not have permitted him to return to his regular job. The worker must prove a permanent inability to return to his former job in order to qualify for a wage differential award under Section 8(d)(1) of th WCA.

Continue reading "Illinois worker fails to prove inability to return to his former job" »