Articles Posted in Workers Compensation

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We all know about the dangers of second-hand smoke, but lesser known is the danger of second-hand exposure to asbestos. A recent Chicago case hinged on this very issue and the trial court found that when an employee’s family is exposed to asbestos fibers by way of the employee’s clothes that the employer is not liable. Nelson v. Aurora Equipment Co., No. 2-08-0186 (May 29, 2009).

Upon appeal the Illinois Appellate Court for the Second District found that in cases where employees who are exposed to asbestos fibers at work then bring the deadly mineral home on their work clothes and thereby expose family members that it does not result in liability to the employer. The Appellate Court concluded that Aurora Equipment Company owed no duty to the wife of an employee under premises liability law because the wife was not on Aurora’s land.

The case had been brought by the wife’s husband after she died from mesothelioma and colon cancer in 2004. The mesothelioma was allegedly from second-hand exposure to asbestos from both her husband and son’s clothes. The plaintiffs alleged that since the father and son were exposed to asbestos fibers and dust while working at Aurora Equipment and that the wife and mother was exposed to the same asbestos fibers found on their work clothes, that the estate would be entitled to recovery for her death.

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It makes sense that when an employee is injured on the job that the employer would want their physicians to examine the employee in addition to the employee’s physician. However, according to a recent ruling by the Illinois First District Appellate Court while the employer may continue to have the employee examined by their own doctors they are not allowed to rely exclusively on their physicians’ examinations when terminating an employee for not returning to work in a timely manner following an injury.

In Grabs, et al. v. Dominick’s Finer Foods, LLC, No. 1-08-3007, the plaintiff employee was injured while working at a Dominick’s in Cook County and filed an Illinois workers’ compensation claim. Initially Dominick’s approved the workers’ compensation claim and paid the employee’s medical bills and temporary total disability benefits. But when the employee’s physician continued to recommend that he remained off work Dominick’s retained its own medical exam of the employee. During this “independent” medical exam, the employer’s physician found that the employee’s injury was not work-related and that he was able to return to work without any restrictions. However, the employee chose to continue to follow his own physician’s advice and remained off of work.

When the employee did not show up for work Dominick’s applied its no-fault attendance policy and terminated the employee. Under this policy an employee can be terminated for job abandonment if he or she fails to come into work or call in absences.

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The Illinois Appellate Court reversed a ruling by a Circuit Court judge who had denied Illinois workers’ compensation benefits to a Circuit City employee. The main issue was whether or not the employee had been acting within the scope of his employment. Circuit City Stores, Inc. v. Illinois Workers’ Compensation Commission, No. 2-08-0722 WC.

The employee, Clinton Dwyer, testified that a co-worker had asked for his help in dislodging a bag of snack chips from a vending machine near an employee break room at his Circuit City store. Dwyer said that he tried shaking the machine, but failed to dislodge the chips. He then shook the machine from side to side, which still did not dislodge the chips. Then he hit the machine with his shoulder and hip, at which point he fell to the floor and was complaining of hip pain.

Dwyer was later taken to a nearby hospital where x-rays showed an impacted, slightly displaced fracture through the right femoral neck. He was sent to Chicago’s Rush University Medical Center for immediate treatment and underwent surgery the same day.

A Circuit City representative testified at a hearing that the snack machines were maintained near the break area for customers and “for the convenience and comfort of employees.” But Dwyer wasn’t on break at the time and was therefore in violation of company protocol when he went to the machine. However, the representative testified that Dwyer wasn’t disciplined for violating company policy.

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According to an Illinois Appellate Court, if an injured employee is fired for conduct related to his or her Illinois workers’ compensation claim, then he or she is not entitled to benefits for temporary disability under the Illinois Workers’ Compensation Act. Interstate Scaffolding, Inc. v. Workers’ Compensation Commission, 2008 WL 4658600 (W.C. Comm. Div., Oct. 20).

In Interstate Scaffolding, an Illinois worker was injured on the job when the emergency team dropped him from a backboard. The worker hit his head and suffered a concussion, blurred vision and other medical issues.

After returning to work with restrictions to light duty, the worker was found to have written “religious maxims” on the walls of a storage room. A few months later he was in a verbal confrontation with an assistant to the company’s president. Shortly after this occurred the worker was fired.

The legal question of first impression was whether or not this worker lost the right to his temporary total disability benefits (TTD) when he was fired for conduct that was allegedly unrelated to his workers’ compensation claim.

Under Illinois law, claimants seeking TTD benefits must prove only that they are not working, but that they are unable to work. The dispositive inquiry is whether the claimant’s condition has stabilized and whether the claimant has reached his or her maximum medical improvement. This requires a medical release to return to work, medical testimony or evidence concerning the claimant’s injury and the extent of the injury. Once the claimant has reached maximum medical improvement, the disabling condition has become permanent so he is no longer eligible for TTD benefits.

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The Illinois Supreme Court recently reversed a prior ruling by the Illinois Appellate Court regarding employer immunity under the Workers’ Compensation Act (Daniel Ioerger, et al. v. Halverson Construction Company, Inc., No. 105912 (December 18, 2008).) In 1999, Midwest Foundation Corporation and Halverson Construction Company entered into a joint venture for an Illinois Department of Transportation project to repair a bridge over the Illinois River.

The profits, losses and liabilities resulting from the project were to be shared 60-40 between the two companies, with Midwest getting the larger share. As part of this agreement, Midwest was responsible for providing the labor and covering the workers’ compensation insurance.

During the project, four of Midwest’s iron workers were working from a platform suspended over the Illinois River. While they were working the platform collapsed, which caused them to fall into the river. Three of the iron workers were injured and one died.

The three injured workers and the estate of the deceased worker received workers’ compensation benefits through Midwest’s workers’ compensation insurance. But the four parties also filed an Illinois construction site accident lawsuit against Halverson, the joint venture, and various other defendants. The plaintiffs sought to recover damages for their injuries and the one worker’s death.

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Consider a case where an Illinois roofer was burned when a tar pot ignites. This construction worker can claim damages against the site developer for negligence. Many building project developers are mindful of the fact that many workers in the construction industry are exposed to dangerous conditions. But in some cases a project owner’s negligence may result in a subcontracted workers’ injury, in which case the project owner would be liable.

This situation applies when the control of the job’s safety clearly rests in the hands of the builder or owner of the project. The relevant company can be held responsible for a construction accident when one of its workers is placed in such a dangerous situation that his/her injuries were foreseeable and predictable.

Let’s return to the example of the roofer working with a pot of molten hot roofing material that resembles tar. This heated material is smoothed over the roof and will waterproof the roofing surface once it cools and hardens. In order to get this roofing material up to the roof that may be some 30 feet above ground, several construction workers must hoist the heated containers to the roof. Dealing with such burning hot material is inherently dangerous and requires the owner to provide a safe environment in which to complete this process.

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The Illinois Supreme Court recently affirmed a ruling by the Illinois Appellate Court in favor John Van Cleve, a Maxit employee, who was injured while working. Maxit, Inc. v. John Van Cleve, et al., No. 105532.

Van Cleve was driving during his working hours when he was injured in car accident. He filed both a claim under his employer’s underinsured-motorist policy and a workers’ compensation claim against his employer. In 2004 he settled the underinsured-motorist claim for $800,000, which was to compensate for his injuries. At that point Van Cleve signed a document releasing his employer from any future claims.

Then in 2005, Van Cleve and Maxit, his employer, agreed to a $200,000 settlement of Van Cleve’s workers’ compensation claim. The settlement agreement was approved by the Industrial Commission, which is the court that handles all workers’ compensation claims.

However, even though they had agreed to the workers’ compensation settlement, Maxit later filed a lawsuit against Van Cleve alleging that he was not entitled to the workers’ compensation payment because of his earlier underinsured-motorist settlement. The trial court ruled in favor of Maxit and agreed that the earlier release barred Van Cleve from further recovery under the Workers’ Compensation Act.

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Illinois Appellate Court ruled that Illinois Insurance Guaranty Fund (IIGF) is responsible for paying Illinois workers’ compensation benefits to a worker who was injured on the job (Virginia Surety Co. v. Adjustable Forms, Inc.). This ruling came in spite of IIGF’s claims that the Chicago worker was also covered under Virginia Surety Co.’s policy and therefore it should be paying the Illinois workers’ compensation benefits.

Michael Hadrys, an Adjustable Forms employee, was injured while working on a construction project in Illinois called the River East Project. And as is typical in the construction industry, his insurance was an owner controlled insurance program (OCIP) meaning that it was covered through the owner of the job and not his direct employer. The OCIP was being covered by Reliance Insurance Co., who have since folded, and that’s when things get complicated.

Typically, when an insurance company folds all its claims are handled by the Illinois Insurance Guaranty Fund (IIGF), provided that there is no other insurance company involved to take over the claim. However, in this case because Hadrys’s employer, Adjustable Forms, actually also had its own insurance through a different provider, Virginia Surety Co. Therefore the IIGF argued that it was not responsible for paying Hadrys’s workers’ compensation claim, but that Virginia Surety Co. was. Yet the Illinois Appellate Court disagreed.

The case revolved around whether or not Virginia Surety Co. was actually responsible for insuring Hadrys at the time of his Illinois construction site injury. The IIGF said that it was because it was an alternate form of insurance for Hadrys’s employer. Virginia Surety Co. said that it was not because Adjustable Forms insurance policy stated that it would cover injured employees unless they had other insurance.

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Chicago area Metra worker Leonard Brzinski was denied recovery for injuries he suffered after falling into a sinkhole while working. Under the Federal Employers’ Liability Act (FELA), a train company employee can bring suit for injuries suffered on the job due to the employer’s negligence.

Brzinski arrived at work in Orland Park, Illinois, to investigate an accident. He was walking along the service road that ran parallel to the railroad tracks for the purpose of taking photographs. While he was walking, the ground gave way and Mr. Brzinski stepped into an 18-inch sinkhole with his left foot and injured himself.

Brzinski filed suit against Metra seeking recovery for his injuries. The defendant, Metra, filed a motion for summary judgment stating (1) Leonard was not one of the employees statutorily allowed to recover under FELA and (2) that Metra had no actual or constructive notice of the sinkhole that caused the injury.

The trial court granted Metra’s motion on the second argument- that Leonard failed to establish that Metra was or should have been on notice of the sinkhole defect. Therefore Metra was not responsible for Brzinski’s injuries.

Brzinski appealed to the Illinois Appellate Court, who affirmed the decision of the trial court. The appeals court further stated that their decision was partly because of the consequences that would occur if they did side with the plaintiff despite his lack of proof. Namely, that every railroad would be liable for damages to an employee who was injured while working for them whether it was due to the railroad’s negligence or not. The court did not feel this was the intention of the FELA statute.

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Consider the following scenario. You work at a Chicago manufacturing factory. One day the machine you operate becomes jammed. In order to try to remove the jammed material you remove the machine’s guard and place your hand inside. But as you do this the machine starts up and crushes your hand. You are now permanently disabled and unable to do your job. What are your legal options?
Because of Illinois worker’s compensation law you are limited to recover against your employer in the Illinois Industrial Commission and cannot bring a separate civil lawsuit directly against your employer. But if your injury at work involved a machine or product then you may be able to recover damages from the manufacturer in a product liability claim brought as a separate civil suit.

The most common product liability claim from work-related injuries is due to the product’s lack of safety features, such as a guard or an automatic shut-off that is activated when the guard was removed, or a release lever that kills the power instantly. When a product fails to include a reasonable safety feature that makes it unduly dangerous to its user then the manufacturer can be held liable for any injuries sustained while operating the machine.

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