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Illinois Workers Compensation System Overhaul Became Law on September 1, 2011: How Does It Impact Your Workers Compensation Claim?

September 15th, 2011 by admin

Workers on the job in Illinois have new laws in place to protect them from injuries and harm now: as of September 1, 2011, the big, big changes made to the Illinois Workers’ Compensation Act are now the law of the land.

Which means that:

  • if you are a worker who is hurt on the job anywhere in the State of Illinois on or after September 1, 2011, then your injury claims will be governed by this new set of laws – and there are lots of differences between the new Illnois Workers’ Compensation Laws and those worker compensation statutes of the past.
  • even if you were injured before September 1, 2011, the procedures that control your Illinois workers’ compensation claim may change, because the process is governed by this new set of reforms.

What Are The Big Differences Between the Old Illinois Workers Compensation Act and the 2011 Workers Compensation Laws?

When Governor Pat Quinn signed this reform bill into law, he told everyone that one of its results will be to help companies by decreasing the insurance premiums that they have to pay for their workers’ compensation insurance coverage.  And it does — Illinois business will save millions now, some suggest a half-billion dollars a year, because of this new legislation.

However, many are concerned that it will not benefit Illinois working men and women.  For instance:

  • The new laws try to take people out of the courtrooms and into negotiation rooms.
  • The new laws also slash by 30% medical fees allowed to physicians and hospitals who care for workers who have been injured while working on the job.
  • Injuries themselves also got stripped; for example, claims for carpal tunnel syndrome  – an all-too-common and sometimes delibitating worker injury — are being heavily regulated now.

Many believe that this isn’t the end to this story: other laws (and lawsuits) will have to address the reforms that are in place now, because there are either holes in the laws, or they are just plain unfair.  Doctors, for example, are already suggesting that cutting their fees by a third was draconian and they may fight against this.

What Happens to Illinois Workers Now?  It’s Not Clear.

Right now, some believe that it will take years before the dust settles on the reforms that became effective this month.  This, despite the fact that an on the job work injury can be so devastating to a family.  When a father or mother is seriously injured while at work, so much so that he or she cannot do their job, then the family is in crisis.  The law should be swift in its protection, and there is a real concern that workers may suffer not just in their injuries but in getting deserved legal redress for them.

Workers on the job in the State of Illinois are vulnerable to all sorts of serious on the job work injuries as well as the risk of wrongful death while on the job in:

  • Construction Injuries
  • Explosions
  • Fires
  • Equipment Malfunction
  • Machine Malfunction
  • Electrocution
  • Railroad Workers (FELA) Job Site Injury
  • Mill Accidents
  • Falls
  • Slips
  • Longshoremen & Maritime Job Site Injury

If you have a question about how the reforms to the Illinois Workers’ Compensation Laws may impact you or a loved one and your workers compensation claim, please feel free to contact our offices by email or phone (see the toll-free number above).

Posted in Construction Injuries, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Illinois Wrongful Death, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Railroad Workers (FELA), Serious Personal Injury, Work Related, Workers’ Compensation, Wrongful Death | No Comments »

Workers Are No Safer From Fatal On the Job Work Injuries This Year: 12 Workers Die Each Day Working On The Job

August 30th, 2011 by admin

The Bureau of Labor Statistics is responsible for investigating and reporting the number of American workers who are killed on the job each year, and this week, the Secretary of Labor released their preliminary findings. It’s not good.

Imagine: you leave for work one morning, just like any other day, but that will be your last morning to see your wife, to tell your kids goodbye. No one gets advanced warning that they will die in a work injury beforehand.

Imagine: you give your spouse a quick peck on the cheek as you run out the door, never thinking that this will be the last time you will see them – because that day, they will be fatally injured while doing their job.

American Workers Are Still Being Fatally Injured On the Job and The Statistics Haven’t Decreased: 12 American Workers Die Each Day On The Job

The National Census of Fatal Occupational Injuries reports that there has not been any real change in making American workers safer — in 2010, the number of workplace fatalities was 4547, compared 4551 with 2009. Among its findings:

  • The number of fatal injuries among wage and salary workers increased by 2 percent in 2010.
  • Fatal work injuries in the private mining industry increased 74% percent.
  • Work-related fatalities resulting from fires more than doubled from 2009 to 2010, with the most Americans dying from fire last year than any year since 2003.
  • The number of fatal workplace injuries among police officers increased by 40%.

It is a Modern Tragedy to have any American Worker Die While On the Job, Doing His or Her Work

In response, Secretary of Labor Hilda L. Solis issued the following statement:

“No worker should have to sacrifice his or her life to earn a living. An average 12 workers die on the job every day, and that reality continues to drive the work of the Labor Department. When the Occupational Safety and Health Act was passed in 1970, the National Safety Council estimated that 14,000 workers died each year on the job. Now, with a workforce that has doubled in size, the annual number of fatalities has dropped significantly. But it’s not enough. We cannot relent from our enforcement of laws that keep our nation’s workers safe. One worker killed or injured on the job is one too many.

As our economy continues to strengthen and the workforce expands, we at the Department of Labor will remain resolute in our mission to ensure that safety is not sacrificed as America’s workers provide for themselves and their families. My constant focus is ‘good jobs for everyone,’ and safety is an essential part of that equation.”

Kenneth J. Allen & Associates Agrees With Secretary Solis: 12 American Workers Dying Each Day is Unacceptable

Having twelve Americans die EVERY DAY while working on their jobs is a shockingly high number for modern America today.  Representing families and loved ones who are dealing with this sort of tragedy gives a perspective to these numbers that only serves to excerbate how heartwrenching and unacceptable these statistics are … especially in our local community, where we have countless families who send loved ones off to mines and mills and other dangerous environments daily.

It is only through legislation, regulation, and judicial decision that employers will place people over profits.

Please be careful out there.

Posted in Construction Injuries, Defective Products, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Illinois Wrongful Death, Indiana Wrongful Death, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Product Liability, Railroad Workers (FELA), Serious Personal Injury, Work Related, Wrongful Death | No Comments »

Will Federal Budget Cutbacks Mean More Workers Hurt or Killed? Many Say Yes as OSHA Budget Cuts Proposed

August 4th, 2011 by admin

This week, the following press release was issued by Public Citizen, a national, nonprofit consumer advocacy group.  In it, the consumer advocates are crying out against proposed Congressional action that would cut back the amount of federal monies provided to OSHA, the Occupational Safety and Health Administration of the U.S. Department of Labor.

Currently, OSHA inspectors roam American workplaces, performing safety inspections and making sure that employers know and follow federal regulations designed to keep American workers safe.  This is very, very important for those who work in dangerous job sites like mills, mines, or construction sites.   It has been proven in courtrooms time and again that employers cannot be trusted to keep their people safe without the law requiring them to do so.

So, when Congress considers where to cut back, perhaps the safety of the American worker should not be dismissed easily.  Here, argued eloquently by Private Citizen, are some things to be considered:

Sen. Coburn is Dead Wrong on Worker Safety

Senator’s Report Distorts Data in Call for Cuts to OSHA Budget

WASHINGTON, D.C. – A deficit reduction report that Sen. Tom Coburn (R-Okla.) published in late July relies on misrepresented data when it calls for a $72.6 million cut to the Occupational Safety and Health Administration’s (OSHA) budget.

One section of the report, entitled “Back in Black,” urges Congress to eliminate OSHA training grants and shift the agency away from worksite inspections. Coburn, a member of the U.S. Senate’s “Gang of Six,” proposes that OSHA instead focus its resources on unproven voluntary safety programs.

“Sen. Coburn’s proposal would weaken OSHA and put workers’ lives in danger,” said Justin Feldman, worker health and safety advocate for Public Citizen’s Congress Watch division. “The report bends facts to conform to an anti-regulatory bent.”

The report misrepresents data several times, Feldman said. Attempting to show evidence of inefficiency at the agency, the report incorrectly asserts that the number of OSHA inspections declined between 2008 and 2010, a time when the agency’s budget was growing. OSHA’s official statistics, however, show that the number of inspections actually increased by 6 percent during this period.

In another case, Coburn’s report cites a Government Accountability Office (GAO) report as evidence that voluntary safety programs are effective. But the GAO report actually states that the programs have never been properly evaluated.

The Coburn report is particularly critical of OSHA’s training grant program, which pays for community organizations to provide health and safety trainings. Coburn calls for the outright elimination of this program, which trains more than 60,000 vulnerable, hard-to-reach workers each year.

“OSHA’s training grant program is one of the country’s only funding sources for worker health and safety education and accounts for just 2 percent of OSHA’s budget,” Feldman said. “Sen. Coburn, a physician, should see the importance of this program for public health.”

Posted in Construction Injuries, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Railroad Workers (FELA), Serious Personal Injury, Spinal Injuries, Work Related, Workers’ Compensation, Wrongful Death | No Comments »

Ability of Plaintiffs to File Class Actions is Vital: Congress Investigating Recent U.S. Supreme Court Decisions Harming Plaintiffs’ Class Action Rights

July 7th, 2011 by admin

Class action lawsuits allow individual plaintiffs to group together in one lawsuit and in one courtroom as they seek justice against a defendant that is all too often a huge, international corporation. Class action lawsuits level the David vs Goliath playing field in countless ways, and class action lawsuits have proven to be vital to justice when defendants are powerful, rich, and ruthless.

Consider these famous class action lawsuits in American history: (1) the breast implant litigation of the 1990s, settled for $3.4 billioin, where a class action lawsuit sought damages for women injured by silicone breast implants against the major implant makers (Corning, Baxter, Bristol-Meyers Squibb/MEC, 3M), (2) the Exxon-Mobil class action litigation after the Exxon Valdez oil spill, where those injured by the oil spill along 1300 miles of coastline took the oil and gas giants to judgment (not settlement) for $5 billion in damages, or (3) the nationwide tobacco product class action litigation, where the top six tobacco companies were sued by each state’s attorney general for injury and death caused by cigarette smoking, etc..

Movies are made about class actions: A Civil Action and Erin Brockovich are just two examples.

Senate Is Investigating Supreme Court’s Recent Impact on Class Action Lawsuits

The Senate Judiciary Committee is investigating recent opinions released by the United States Supreme Court and for details, the Opening Statement by SJC Chairman Patrick Leahy to the June 29, 2011 Hearing provides a good overview of what Congress is doing to help injured plaintiffs and their families:

This morning, we will highlight several recent Supreme Court decisions to examine the impact on the lives of hardworking Americans. Each of these decisions give corporations additional power to act in their own self-interest, and each limits the ability of Americans to have their day in court. This hearing is a continuation of previous hearings about how Supreme Court rulings affect Americans’ access to their courts. Especially in these tough economic times, American consumers and employees rely on the law to protect them from fraud and discrimination. They rely on the courts to enforce those laws intended to protect them. Unfortunately, these protections are being eroded by what appears to be the most business-friendly Supreme Court in the last 75 years.

Last week, in Wal-Mart v. Dukes, five men on the Supreme Court disqualified the claims of 1.5 million women who had spent nearly a decade seeking justice for sex discrimination by their employer, Wal-Mart. They ruled that the women did not share enough in common to support bringing a class action. Perhaps more troubling, they told those women that Wal-Mart could not have had a discriminatory policy against all of them, because it left its payment decisions to the local branches of its stores.

The case gives Wal-Mart, and the rest of corporate America, a clear path to avoid company-wide sex discrimination suits: Have your lawyers write a non-discrimination policy, then allow your local branches to implement compensation decisions, and you can hide behind your policy regardless of what really happened to your employees across America. Through this decision, a narrow majority of five justices have, again, made it harder to hold corporations accountable under our historic civil rights laws.

Earlier this month, in Janus Capital v. First Derivative Traders, the same five justices gave corporations another victory by shielding them from accountability even when they knowingly lie to their investors. In that case, the Court held that investors have no remedy when a corporation knowingly issues false statements from a shell entity it created to “make” the false statement. Some have said that the Janus decision provides Wall Street companies with a “license to lie.” Others have called the opinion “a roadmap for fraud.” Whichever phrase you use, the decision allows Wall Street companies to design new ways to evade accountability from the harm inflicted on hardworking Americans who have seen their life savings ravaged over the past few years by fraudulent investment schemes and corporate misconduct.

This term, the Supreme Court also issued a devastating decision that will harm the ability of consumers to band together when their phone company or other corporations falsely charge them small, unjustified, and unfair fees. Two months ago, in AT&T v. Concepcion, the Supreme Court, in another 5-4 opinion, held that companies can take advantage of the fine print on telephone bills and other contracts to bar customers from bringing class action lawsuits. What’s more, the Court held that states cannot prohibit such “mandatory arbitration clauses” — even if the state legislatures vote to do so — because such a law would be preempted by the Federal Arbitration Act. Justice Scalia and the four fellow conservatives on the Court, once again, misinterpreted Congress’ intent; they favored corporations and further weakened protections for consumers. Binding mandatory arbitration makes a farce of the American people’s constitutional right to a jury trial and the due process our Constitution guarantees to all Americans.. In arbitration, there is no transparency. There are no juries. There is no appellate review.

Like the Wal-Mart case, the AT&T case also denies consumers the right to bring their lawsuit as part of a class action. Class actions serve an important function in our justice system. If I have a claim for $50 or $100 against a company, the potential recovery is too small for me to hire a lawyer and seek redress. If I combine my claim with those of other people who also have a small claim, that would allow us to attain adequate representation and seek accountability. When consumers can band together, then corporations can be forced to account for their misconduct, even if the harm to each individual consumer is relatively small. Class actions are an essential way for everyday Americans to gain access to our courts.

The cases we are discussing today are just a few examples of how the Supreme Court’s recent decisions will hurt individual Americans and benefit large corporations who engage in misconduct. A study by Lee Epstein, William Landes and Richard Posner, entitled “Is the Roberts Court Pro-Business?” illustrates this phenomenon. It found that the Supreme Court ruled in a pro-business fashion in 29 percent of cases under Chief Justice Earl Warren. Under Warren Burger the figure was 47 percent. Under Chief Justice Rehnquist, it was 51 percent. Now, under Chief Justice Roberts it has risen to 61 percent. The point of today’s hearing is to put these statistics in context by examining some of the most troubling pro-business rulings from the Supreme Court’s term and to consider the lasting effect of these divisive rulings.

Over the past few years, the American people have grown frustrated with the notion that regardless of their conduct some corporations are too big to fail. The Supreme Court’s recent decisions may make some wonder whether the Supreme Court has now decided that some corporations are too big to be held accountable. You get the unfortunate feeling that many of the Justices view plaintiffs as a mere nuisance to corporations. We cannot ignore that sex discrimination in the workplace continues, that corporations continue to deceive consumers and that fraud continues on Wall Street. I believe that the ability of Americans to band together to hold corporations accountable when these things occur has been seriously undermined by the Supreme Court. These decisions have been praised on Wall Street, but will no doubt hurt hardworking Americans on Main Street.

Posted in Airplane & Train Crashes, Auto Accidents, Bus Crashes, Construction Injuries, Defective Products, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Illinois Wrongful Death, Indiana Wrongful Death, Insurance Claims, Job Site Injury, Longshoremen & Maritime, Medical Malpractice, Mill Accidents, Motorcycle Accidents, Other Jurisdictions, Product Liability, Semi-Truck Crashes, Serious Personal Injury, Transportation, Work Related, Wrongful Death | No Comments »

Good Samaritan Laws in Illinois and Indiana: Do You Risk a Lawsuit If You Stop to Help Someone at the Scene of an Accident?

April 28th, 2011 by admin

You’re driving home from work, or maybe it’s the end of a long weekend and you’re part of a parade of cars filled with families returning home. Or maybe you’re at work. In a mine, in a mill, on a train, or in a factory.  You could even be at school, or at the stadium for a game.

Suddenly, without warning: there’s an accident. A serious, scary accident where someone is seriously hurt. They’re in need – and if someone doesn’t help them, they may die.

This scenario becomes reality every day, in every state, in this country. Tragedies happen. Shockingly, however, not every state protects its citizens in the same way when they step up to render aid in an emergency. In fact, without Good Samaritan Laws in place, these do-gooders were sometimes later sued (yes, sued) for trying to help in a crisis.

For example, this winter in Fort Wayne, Indiana, there was a horrific car crash and an off-duty state trooper stopped to help the woman trapped inside her car.  It was only when a stranger, an ordinary citizen and good guy, stopped to help the trooper that they were able to set the woman free.

Illinois Good Samaritan Law

In 2011, the Illinois Good Samaritan Act was amended to clarify that the Illinois General Assembly’s purpose in passing the law was to ” …establish numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talents to help others. These protections …shall be liberally construed to encourage persons to volunteer their time and talents.”

The overall Good Samaritan Law for Illinois is found in 210 ILCS 50, where it provides:

Sec. 3.150. Immunity from civil liability.

(a) Any person, agency or governmental body certified, licensed or authorized pursuant to this Act or rules thereunder, who in good faith provides emergency or non‑emergency medical services during a Department approved training course, in the normal course of conducting their duties, or in an emergency, shall not be civilly liable as a result of their acts or omissions in providing such services unless such acts or omissions, including the bypassing of nearby hospitals or medical facilities in accordance with the protocols developed pursuant to this Act, constitute willful and wanton misconduct.
(b) No person, including any private or governmental organization or institution that administers, sponsors, authorizes, supports, finances, educates or supervises the functions of emergency medical services personnel certified, licensed or authorized pursuant to this Act, including persons participating in a Department approved training program, shall be liable for any civil damages for any act or omission in connection with administration, sponsorship, authorization, support, finance, education or supervision of such emergency medical services personnel, where the act or omission occurs in connection with activities within the scope of this Act, unless the act or omission was the result of willful and wanton misconduct.
(c) Exemption from civil liability for emergency care is as provided in the Good Samaritan Act.
(d) No local agency, entity of State or local government, or other public or private organization, nor any officer, director, trustee, employee, consultant or agent of any such entity, which sponsors, authorizes, supports, finances, or supervises the training of persons in the use of cardiopulmonary resuscitation, automated external defibrillators, or first aid in a course which complies with generally recognized standards shall be liable for damages in any civil action based on the training of such persons unless an act or omission during the course of instruction constitutes willful and wanton misconduct.
(e) No person who is certified to teach the use of cardiopulmonary resuscitation, automated external defibrillators, or first aid and who teaches a course of instruction which complies with generally recognized standards for the use of cardiopulmonary resuscitation, automated external defibrillators, or first aid shall be liable for damages in any civil action based on the acts or omissions of a person who received such instruction, unless an act or omission during the course of such instruction constitutes willful and wanton misconduct.
(f) No member or alternate of the State Emergency Medical Services Disciplinary Review Board or a local System review board who in good faith exercises his responsibilities under this Act shall be liable for damages in any civil action based on such activities unless an act or omission during the course of such activities constitutes willful and wanton misconduct.
(g) No EMS Medical Director who in good faith exercises his responsibilities under this Act shall be liable for damages in any civil action based on such activities unless an act or omission during the course of such activities constitutes willful and wanton misconduct.
(h) Nothing in this Act shall be construed to create a cause of action or any civil liabilities.

Indiana Good Samaritan Law

Indiana’s Good Samaritan Law is not the same as that of Illinois.  Indiana focuses upon protecting emergency medical professionals, whether they are licensed in Indiana or elsewhere, as they do their work at the scene of an emergency.

Indiana’s Good Samaritan Law is found at IC 16-31-6-1, where it provides:

IC 16-31-6
Chapter 6. Immunity From Liability

IC 16-31-6-1
Emergency medical technician services
Sec. 1. (a) A certified emergency medical technician or a certified emergency medical technician-basic advanced who provides emergency medical services to an emergency patient is not liable for an act or omission in providing those services unless the act or omission constitutes negligence or willful misconduct. If the emergency medical technician or emergency medical technician-basic advanced is not liable for an act or omission, no other person incurs liability by reason of an agency relationship with the emergency medical technician or emergency medical technician-basic advanced.
(b) This section does not affect the liability of a driver of an ambulance for negligent operation of the ambulance.
As added by P.L.2-1993, SEC.14. Amended by P.L.205-2003, SEC.33.

IC 16-31-6-2
Use of defibrillators
Sec. 2. (a) Except for an act of negligence or willful misconduct, a certified first responder who uses an automatic or semiautomatic defibrillator on an emergency patient according to the training procedures established by the commission under IC 16-31-2-9 is immune from civil liability for acts or omissions when rendering those services.
(b) If the first responder is immune from civil liability for the first responder’s act or omission, a person who has only an agency relationship with the first responder is also immune from civil liability for the act or omission.
As added by P.L.2-1993, SEC.14.

IC 16-31-6-3
Advanced life support
Sec. 3. An act or omission of a paramedic or an emergency medical technician-intermediate done or omitted in good faith while providing advanced life support to a patient or trauma victim does not impose liability upon the paramedic or emergency medical technician-intermediate, the authorizing physician, the hospital, or the officers, members of the staff, nurses, or other employees of the hospital or the local governmental unit if the advanced life support is provided:
(1) in connection with an emergency;
(2) in good faith; and
(3) under the written or oral direction of a licensed physician;
unless the act or omission was a result of negligence or willful misconduct.
As added by P.L.2-1993, SEC.14. Amended by P.L.205-2003,

SEC.34.

IC 16-31-6-4
Life support provided in connection with disaster emergency
Sec. 4. (a) This section does not apply to an act or omission that was a result of gross negligence or willful or intentional misconduct.
(b) An act or omission of a paramedic, an emergency medical technician-intermediate, an emergency medical technician-basic advanced, an emergency medical technician, or a person with equivalent certification from another state that is performed or made while providing advanced life support or basic life support to a patient or trauma victim does not impose liability upon the paramedic, the emergency medical technician-intermediate, the emergency medical technician-basic advanced, an emergency medical technician, the person with equivalent certification from another state, a hospital, a provider organization, a governmental entity, or an employee or other staff of a hospital, provider organization, or governmental entity if the advanced life support or basic life support is provided in good faith:
(1) in connection with a disaster emergency declared by the governor under IC 10-14-3-12 in response to an act that the governor in good faith believes to be an act of terrorism (as defined in IC 35-41-1-26.5); and
(2) in accordance with the rules adopted by the Indiana emergency medical services commission or the disaster emergency declaration of the governor.

Posted in Airplane & Train Crashes, Auto Accidents, Bus Crashes, Construction Injuries, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Insurance Claims, Job Site Injury, Longshoremen & Maritime, Medical Malpractice, Mill Accidents, Motorcycle Accidents, Pedestrian Accidents, Railroad Workers (FELA), School & Playground Injuries, Semi-Truck Crashes, Serious Personal Injury, Slip & Falls, Spinal Injuries, Sports & Boating Accidents, Transportation, Work Related, Workers’ Compensation | No Comments »

Ring on Your Finger? Take It Off! Ring Avulsion Is Real (Losing a Finger Because of a Ring)

November 18th, 2010 by admin

If you search for the term “ring avulsion” you’ll find lots of gory images of lost fingers and mangled hands, all due to the dangers of wearing a ring while on the job, working on the car or around the house, etc. There are also lots of medio-technical papers which aren’t inviting to the average reader since they’re filled with lots of medical jargon (and sometimes require a paid subscription).

New Article Explains Danger of Wearing a Ring

However, it was only this week that an excellent overview of the dangers of wearing rings while doing certain tasks was published online. If you want to know more about ring avulsion, check out CED Investigative Technologies’ latest article, “Ring Avulsion: the Danger of Wearing a Ring!Engineering Experts in Railroad Claims and Litigation Meet the Expert: Grant Bevill, Ph.D.”

This article is worth your time to read, whether you are a worker or a boss, and whether or not you work in the railroad industry, work construction, do mill work or mining, or any other type of thing that brings your hands into contact with heavy tools, electrical appliances, and the like.

Leave the Wedding Band at Home or in Your Pocket

Simply put, that wedding band or class ring may have sentimental value but you need to weigh that against permanent injury to your hand – including losing that ring finger.

And, if your wife or husband is disturbed about you leaving that ring off your finger (since the wedding band does mark you as mated in our society), then pull up those images that pop up when the phrase “ring avulsion” is searched. Only, don’t do this right before dinner.

Posted in Construction Injuries, Electrocution, Equipment and Machine Malfunction, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Railroad Workers (FELA), Serious Personal Injury, Work Related, Workers’ Compensation | No Comments »

The Miner Safety and Health Act of 2010 – Providing More Safety for Miners and Independent Investigation of Mining Accidents — May Never Become Law

August 11th, 2010 by admin

Right now, a statute has been proposed in the House of Representatives (H.R. 5663) that, if it becomes law, will change parts of both the Federal Mine Safety and Health Act of 1977 (FMSHA) and the Occupational Safety and Health Act of 1970 (OSHA).

If it passes, the new law would make some mining companies implement new safety measures for the protection of their employees as they work in the mines, as well as forcing the companies to adhere to new standards regarding employee rights – including new protections for whistleblowers and mining accident victims.

Finally, the proposal as it is currently written makes it mandatory for there to be independent, third-party accident investigations for certain mine accidents.

Which all sounds good, right? Except that H.R. 5663 may never become reality. Right now, opposition is growing to its passage.

Follow it here:

Posted in Construction Injuries, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Railroad Workers (FELA), Serious Personal Injury, Work Related, Workers’ Compensation, Wrongful Death | No Comments »

Federal Appeals Court Finds Illinois Law Applies To Retaliatory Discharge Lawsuits, Placing Bigger Evidence Burden on Plaintiffs

August 5th, 2010 by admin

On July 15, 2010, the United States Court of Appeals for the 7th Circuit released its opinion in Gacek v. American Airlines, Inc., No. 09-3131 (July 15, 2010) – and it’s big news for plaintiffs seeking justice from evildoing employers. The news isn’t good.

Illinois Retaliatory Discharge Plaintiff’s Burden of Proof

In the case, the Seventh Circuit considered Illinois workers suing for justice in federal court after being harmed for retaliatory discharge.

What is retaliatory discharge? In some jurisdictions, it’s known as “wrongful discharge” or “wrongful dismissal” and it happens when someone is fired without good cause as the employer retaliates against them – firing them in response to an action that the worker has taken. Whistleblowers, for example, risk retaliatory discharge by their employer.

In this month’s decision, all the 7th Circuit justices agreed, issuing a unanimous opinion written by Judge Posner which states that the legal standard in these lawsuits is not the federal standard used in federal court pursuant to McDonnell Douglas Corp. v. Green, but instead the Illinois state law standard which requires a plaintiff to prove causation.

What’s the difference? Under the federal standard found in McDonnell Douglas, the plaintiff only needs to show the employer’s reasons for firing the plaintiff were just pretext — unworthy of belief. That’s a lesser burden than having to prove causation.

Gacek and the Erie Doctrine

In the Gacek opinion, Judge Posner notes that in Clemons v. Mech. Devices Co., 704 N.E.2d 403, 407-08 (Ill. 1998), the Illinois Supreme Court rejected the McDonnell Douglas standard because the state high court was “… unwilling to expand the tort of retaliatory discharge by reducing plaintiff’s burden of proving the elements of the tort.”

With this precedent in place, the opinion relied upon the longstanding Erie doctrine which requires the federal courts to apply state law in substantive issues that come before it. The 7th Circuit felt legally bound to adhere to the Illinois Supreme Court’s rationale in Clemons.

No word yet on whether or not the decision will be appealed.

Posted in Construction Injuries, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Railroad Workers (FELA), Serious Personal Injury, Work Related, Workers’ Compensation, Wrongful Death | No Comments »

Whistleblowers Given New Online Protection by OSHA

July 21st, 2010 by admin

Whistleblowers are employees and workers who “blow the whistle” on wrongdoing in the workplace: they are witnesses to all sorts of unlawful practices, but especially important are those who come forward about dangerous safety and health code violations. These men and women undertake great risk to speak up about wrongs being done.

Whistleblowers are vital to the safety of any workplace, but especially the dangerous work environments found in steel mills, auto manufacturing plants, construction sites, and the like. Whistleblowers can save lives – often at the risk of their own.

This month, the Occupational Safety and Health Administration (OSHA) added online support to its whistleblower protection program, by creating a new whistleblower web site, www.whistleblowers.gov. According to OSHA, the new site is designed “…to provide workers, employers, and the public with easily accessible information about the 18 federal whistleblower protection statutes that OSHA currently administers.”

Whistleblowers.org – Information Hub for Workers Blowing the Whistle on Wrongdoing

At Whistleblowers.org, visitors can find current information regarding all the various statutes and agency regulations established under federal law to protect workers coming forward with evidence of employer wrongdoing (“whistleblower laws”). State laws are not covered by the new site.

According to the agency’s news release, “OSHA doesn’t work unless workers feel secure in exercising their rights,” said Assistant Secretary of Labor for OSHA David Michaels. “This Web page is part of OSHA’s promise to stand by those workers who have the courage to come forward when they know their employer is cutting corners on safety and health.”

The Federal Whistleblower Laws

Indiana, Illinois, and other states have their own set of laws protecting whistleblowers. However, the federal government has been proactive in protecting these workers and the following federal laws are in place to protect whistleblowers today (click here for links to the particular provision):

• Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. §660
• Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105
• Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. §2651
• International Safe Container Act (ISCA), 46 App U.S.C. §1506
• Safe Drinking Water Act (SDWA), 42 U.S.C. §300j-9(i)
• Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367
• Toxic Substances Control Act (TSCA), 15 U.S.C. §2622
• Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971
• Clean Air Act (CAA), 42 U.S.C. §7622
• Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9610
• Energy Reorganization Act (ERA), 42 U.S.C. §5851
• Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. §42121
• Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes Oxley Act (SOX), 18 U.S.C. §1514A
• Pipeline Safety Improvement Act (PSIA), 49 U.S.C. §60129
• Federal Rail Safety Act (FRSA), 49 U.S.C. §20109
• National Transit Systems Security Act (NTSSA), 6 U.S.C. §1142
• Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. §2087
• Section 1558 of the Affordable Care Act (ACA), P.L. 111-148
• 29 CFR Part 1977 – Discrimination Against Employees Exercising Rights under the Williams-Steiger Occupational Safety and Health Act
• 29 CFR Part 1978 – Rules for Implementing Section 405 of the Surface Transportation Assistance Act of 1982
• 29 CFR Part 1979 – Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
• 29 CFR Part 1980 – Procedures for the Handling of Discrimination Complaints under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002
• 29 CFR Part 1981 – Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002
• 29 CFR Part 24 – Interim Final Rule, Procedures for the Handling of Retaliation Complaints under the Employee Protection Provisions of Six Federal Environmental Statutes and Section 211 of the Energy Reorganization Act of 1974, as amended

Here at Kenneth J. Allen & Associates Law Firm, we commend those who have the courage and integrity to risk their jobs and livelihoods, and even their physical safety, to come forward and speak the truth about dangers in the workplace. If there is any way that we can be of help, please feel free to call.

Posted in Construction Injuries, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Railroad Workers (FELA), Work Related, Workers’ Compensation | No Comments »

Younger Workers More Likely to Be Injured or Killed On the Job Says CDC In New Report

April 23rd, 2010 by admin

Workers between 15 and 24 years old are TWICE as likely to be seriously injured on the job in this country, reports the Center for Disease Control in a new study, released this week.  And, lots of them are dying from on the job injuries, as well.

The Most Dangerous Jobs for Young Workers

According to the CDC, young workers are at the biggest risk of on the job work injury or death if they are working within the services industry (32%), doing construction work (28%), working wholesale and retail trade jobs (10%), or doing agriculture work (10%). They faced the highest risk of dying when working in in mining (36.5 per 100,000 FTE), agriculture (21.3 per 100,000 FTE), and construction (10.9 per 100,000 FTE).

Employers Told by Feds — Do More to Protect Young Workers

The federal agency warns employers that they need to take heed to this study, and do more to protect these young workers.

Specifically, the Report states:

The primary responsibility for workplace safety lies with employers (8). Thus, reductions in younger worker injuries and deaths will require employers to make changes in work environments and workplace practices….

Employers should assess injury hazards in their workplaces, take steps to remove or reduce the injury potential, and ensure their workers have the requisite training and personal protective equipment to perform their jobs safely. Employers should be aided by health and safety practitioners, as well as others, in providing better guidance and tools to improve young worker safety.

Reality Check: Will Employers Comply With the CDC Report?

What that warning to employers means to most companies today is allotting more money towards workplace safety.  Entering into the second quarter of 2010, does anyone really expect employers — especially in the most dangerous injuries — to revamp their budgets to protect their youngest employees?

Companies are looking for ways to cut costs, not add to them.  So, while this report is helpful and it would be wise to take heed of its warning, odds are high that nothing much is going to happen here. And young workers will continue to be seriously injured — and die — when on the job, just doing their work.

Bottom line?  Perhaps the best use of this report will be as an injured plaintiff’s exhibit in a personal injury trial.

The CDC Report is online and available for viewing as part of its April 23, 2010, edition of the CDC Morbidity and Mortality Weekly Report.

Posted in Construction Injuries, Electrocution, Equipment and Machine Malfunction, Explosions & Fires, Falls, Job Site Injury, Longshoremen & Maritime, Mill Accidents, Railroad Workers (FELA), Serious Personal Injury, Work Related, Workers’ Compensation, Wrongful Death | No Comments »

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