Illinois Workers Compensation Lawyer Blog

Federal court approves a $6.2 million settlement against sears

Thu, 11 Feb 2010 14:41:10 -0500

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.

Recession expected to have mixed impact on Workers' Compensation insurance market

Thu, 11 Jun 2009 16:09:08 -0500

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."

Illinois employer's promise to pay benefits triggers penalties

Sat, 14 Feb 2009 11:29:58 -0500

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.

Berwyn mayor stops firefighter's from exercising while on duty

Thu, 12 Feb 2009 16:03:04 -0500

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?

OSHA hits Illinois painting company with 17 citations

Mon, 02 Feb 2009 10:57:21 -0500

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.

Illinois lawmakers reviving bill on "prevailing factor"

Sun, 01 Feb 2009 11:32:33 -0500

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.

Illinois Workers' Compensation Commission erred by finding miner's claim was abated

Mon, 12 Jan 2009 16:06:54 -0500

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.

Illinois Supreme Court rules on 2000 bridge deaths

Wed, 07 Jan 2009 15:33:46 -0500

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."

Illinois Appellate Court ruling allows benefits for undocumented immigrant

Tue, 06 Jan 2009 15:04:12 -0500

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."

Illinois Genetic Privacy, Anti-Discrimiation Law Takes Affect

Mon, 05 Jan 2009 14:42:26 -0500

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.

IIllinois employer responsible for TTD benefits

Thu, 18 Dec 2008 11:45:35 -0500

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.

Illinois worker fails to prove inability to return to his former job

Tue, 16 Dec 2008 11:21:34 -0500

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.

Illinois machine operator secures workers comp benefits

Mon, 15 Dec 2008 10:51:11 -0500

The Illinois Workers Compensation Commission awarded permanent total disability benefits to an employee who suffered an embolic stroke and brain damage after shoveling snow for several hours at work.

Where expert medical testimony indicates that a claimant's work activity increased his blood flow, thereby causing a pre-existing benign tumor in his heart to break up and cause obstructions in blood flow, the worker's resulting brain damage and other injuries are compensable under the WCA.

Illinois Carpenter's termination for cause blocks TTD benefits

Fri, 12 Dec 2008 16:16:12 -0500

An Illinois employee is not entitled to collect TTD benefits after he voluntarily removes himself from the workforce for reasons unrelated to his injury. An employee's termination for cause constitutes such a voluntary removal.

The worker, a union carpenter, injured his head and neck while working. He eventually returned to light-duty work. The employer accommodated the worker's restrictions, but subsequently terminated him for defacing company property. Specifically, the worker had written religious inscriptions with permanent marker on the walls and shelves in a storage room. The arbitrator found the claimant not entitled to TTD benefits after his termination. However, the Illinois Workers' Compensation Commission and circuit court disagreed. The Illinois appellate court reversed the decision of the Illinois Workers' Compensation Commission and the circuit court, holding that the worker was not entitled to collect TTD benefits after he voluntarily removed himself from the workforce for reasons unrealted to his injury.

The overriding purpose of the Illinois Workers' Compensation Act is to compensate an employee for for lost earnings resulting from a work-related disability. Allowing an employee to collect TTD benefits from his employer after he was removed from the workforce as a result of volitional conduct unrelated to his injury would not advance the goal of compensating an employee for a work-related injury. Rather, it would provide a windfall by continuing to compensate the employee despite the fact that the cause of the lost earnings after the employee's departure is unrelated to the injury.

In this case, the court noted that the worker presented evidence that his condition had not stabilized at the time he was discharged. However, he had been released to light duty work and had been able to perform such work for the defendant. Further, the claimant admitted he did not have permission from the employer to write on the walls and shelves in the storage room and that the writings were not related to his job duties. The carpenter tacitly conceded that he was removed from the workforace as a result of volitional acts unrelated to his injury. But for his conduct in defacing the employer's property, the claimant would have continued receiving TTD benefits until his condition had stabilized. The court
concluded that the worker's volitional acts resulting in termination for cause rendered him no longer entitled to TTD benefits.

Illinois employer's refusal to approve surgery extends TTD period

Thu, 11 Dec 2008 16:35:39 -0500

Where a doctor's opinion regarding the permanency of a worker's condition is based on the worker's inability to undergo surgical intervention due to the employer's failure to provide authorization, then the worker has not yet reached maximum medical improvement.

On November 24, 2000 the employee was severely injured when he fell from a broken chair and landed on a concrete floor. An MRI of the thoracic spine confirmed a herniated disk with spinal cord encroachment and displacement. The arbitrator awarded 238 weeks of temporary total disability benefits from Dec. 5, 2000 through June 30, 2005, permanent total disability benefits, medical expenses and penalties and fees pursuant to Sections 19(k), 19(l) and 16. Upon review the Illinois Workers' Compensation Commission modified the arbitrator's decision by vacating the permanency award and extending the award for temporary total disability through March 7, 2007, the date of the hearing. The arbitrator awarded TTD through June 20, 2005, the date the treating doctor opined that the claimant was permanently and totally disabled from returning to work. However, the Commission noted that the employer refused to authorize recommended fusion surgery for the claimant. On March 10, 2005, a shoulder specialist recommended right shoulder arthroscopic surgery, but again the employer would not approve the surgery. The treating doctor's opinion as to the permanent nature of the employee's condition was based on the employee's inability to undergo surgical intervention due to the employer's failure to provide authorization. Because surgical intervention is still pending, the Illinois Workers' Compensaiton Commission found that the employee has not yet reached maximum medical improvement. Therefore, the employee was entitled to 326 weeks of temporary total disability benefits, through the date of the hearing.

Furthermore, the record was clear that the intention of the parties was to try this case pursuant to Section 19(b) of the WCA. The parties did not list nature and extent as one of the issues in dispute and therefore were not prepared to argue nature and extent of the employee's disability. Based on the lack of notice and potential prejudice, the Illinois Workers' Compensation Commission vacated the arbitrator's permanency award.