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.

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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.

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.

In it’s second year, The Illinois Workers’ Compensation Fraud Unit (WCFU) reported that the number of cases it investigated and referred to prosecutors doubled. According to the Illinois Division of Insurance, there was an increase of 168% over 2006- and referred 58 cases for prosecution, an increase of 346%. In 2007, the unit opened 102 investigations.

In 2007 the total fraud dollar amount increased by 949% in 2007 to $6,486,771. In 2006, the approximate total fraud dollar was $618,391. Employer based fraud increased from one to seven and with total fraud amounts increase to $4,333.405 up from $24,000.00

According to Jim Jordan, a spokesman for the Illinois Division of Insurance, the WCFU is required to present their findings to the Workers’ Compensation Advisory Board on Tuesday and to answer any questions the Board may have about the report.

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