Articles Posted in Workers’ Rights

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Lee Newsome sustained a serious injury to his right foot when a rail hanging from a crane fell on him. He was working for the Wisconsin Central Railroad. Newsome sued the railroad under the Federal Employers Liability Act (FELA) claiming that his injuries caused him a “loss of future earning capacity.” Wisconsin Central moved for partial summary judgment on Newsome’s loss of future earning capacity, arguing that the evidence did not support his claim. The U.S. Magistrate Judge handling this case denied Wisconsin Central’s motion, holding that there was a fact question for the jury.  According to the Magistrate Judge’s decision, the U.S. Supreme Court has held that the FELA allows for the awarding of damages for impairment of earning capacity.

“The FELA is a broad remedial statute to be construed liberally in order to effectuate its purpose. In addition to compensation for pain and suffering, the FELA allows damages for economic harms such as loss of past and future wages and impairment of earning capacity that result from injury.” Grunenthal v. Long Island RR Co., 393 U.S. 156, 160-62 (1968).”

There were no 7th Circuit Court of Appeals cases for the Magistrate Judge to rely on. However, there were other federal circuit court cases that stated that proofs necessary to recover future loss of earning capacity is allowed in the FELA context.

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The World Health Organization has declared that diesel fumes cause lung cancer. The announcement is important for people who are exposed to diesel exhaust in their work places. In the announcement, experts said diesel fumes were more carcinogenic than secondhand cigarette smoke.

Diesel exhaust now shares the W.H.O.’s Group 1 carcinogen status with smoking, asbestos, ultraviolet radiation, alcohol and other elements that pose cancer risks.

The United States and other developed nations require modern diesel engines to burn much cleaner than they did a decade ago. Most industries, like mining, already have limits on the amount of diesel fumes to which workers may be exposed.

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An Illinois District judge denied the U.S. government’s motion for summary judgment on the basis that the government had failed to establish that the plaintiff’s claim was not valid in James D. Fowler v. The United States of America, 08-CV-2785. The U.S. government had attempted to prove that the plaintiff was barred from receiving compensation from the post office because he had already received workers’ compensation directly from his employer. However, the district court disagreed with the U.S.’s classification of the plaintiff as a “borrowed employee,” thereby denying its motion for summary judgment.

The claims in Fowler arose out of an injury that James Fowler sustained at a while delivering mail to a Libertyville Post Office. Fowler was an employee of Eagle Express, a company which regularly contracted with the U.S. Postal Service to move mail between its various facilities. Under these “highway contract routes” (HCR) agreements, Eagle Express was responsible for covering all of the costs and duties associated with delivering mail on its required routes, including the payment and insuring of Eagle Express employees.

So even though Fowler was injured at the Libertyville Post Office while engaged in work for the U.S. Postal Service, his workers’ compensation claim was covered by Eagle Express. However, he sought to recovery additional damages from the U.S. Post Office based on the negligence of its employees in causing his injury based on the Federal Tort Claims Act. The FTCA allows parties to sue the U.S. for personal injury “caused by the negligent or wrongful act or omission” of any federal government employee “while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

However, the U.S. argued that it was not liable for Fowler’s injuries because he was a borrowed employee. Because the Illinois Workers’ Compensation Act is an exclusive remedy, an employee’s employer and any borrowing employer are immune from tort liability arising from an injury. Jorden v. U.S., Dist. Court, ND Illinois 2011. U.S. argued that just as Fowler was barred from pursuing a lawsuit against Eagle Express because he had already recovered workers’ compensation, so was Fowler barred from suing the U.S. Post Services based on his status as a borrowed employee.

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It is commonly acknowledged that employers have a duty to provide a safe, healthy environment to their employees. If an employer fails to provide a safe environment, perhaps resulting in a work injury, then that employer may be held liable for the employee’s injuries. However, a new Illinois Supreme Court decision extends an employer’s duty beyond just to its employee, but to the employee’s family as well.

The Illinois case of Cynthia Simpkins v. CSX Transportation,110662 (March 22, 2012), was filed after the wife of a CSX Transportation employee developed mesothelioma; the wife alleged that her mesothelioma was caused by exposure to asbestos on her husband’s work clothes. The trial court dismissed the case on the basis that CSX owed no responsibility to its employee’s wife because there was no direct relationship between her and CSX. However, both the Illinois Appellate Court and the Illinois Supreme Court reversed that ruling, although for different reasons.

The Illinois Appellate Court decision held that not only does an employer have a responsibility to its employee’s family members, but that the plaintiff had shown sufficient evidence to support its claims against CSX. Specifically, the court found that “it takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well.” Therefore, the appellate court found that Simpkins had provided evidence to suggest that CSX was negligent and did not fulfill its duty to her. And while the Illinois Supreme Court agreed that in theory an employer does have a duty to its employees’ family members, it did not agree that Simpkins had provided enough evidence to prove that CSX did in fact have a duty towards her.

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The Illinois Appellate Court affirmed a circuit court’s ruling regarding the venue in a railroad employee’s personal injury lawsuit. While the railroad company had wanted to transfer the case to Mississippi, the Illinois courts supported the plaintiff’s choice of Illinois as the case’s venue. Fennell v. Illinois Central Railroad Company, 2012 WL 19455 (Ill.App.2012).

The plaintiff, Walter Fennell, had been working for Illinois Central Railroad Company for over 35 years. In 2009, Fennell filed a Federal Employers Liability Act (FELA) lawsuit against Illinois Central Railroad. The FELA lawsuit alleged that Fennell was exposed to asbestos, diesel exhaust, environmental tobacco smoke, sand, and toxic fumes, dust, and gases during the tenure of his employment, which in turn resulted in Fennell’s current respiratory problems. Fennell was seeking compensation for the health problems he allegedly developed during the course of his employment with Illinois Central.

Shortly after Fennell was filed, Illinois Central sought to have the case dismissed under the doctrine of interstate forum non conveniens, which is a legal doctrine that allows a court to deny its jurisdiction if it finds that a different forum would be more convenient and more equitable. The defendant railroad argued that Mississippi would be a more convenient and fair location on the grounds that Fennell himself lived in Mississippi, that Fennell had worked in Mississippi for the majority of his career, and because the alleged injury likely occurred in Mississippi. However, the trial court denied the defendant’s motion and affirmed Illinois’s jurisdiction in the case; the defendants appealed this decision.

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Given the state of today’s economy, it has become commonplace to hear about companies trying to cut corners, to stretch every dollar, and maximize their workers’ responsibilities. However, UPS workers are raising questions about what cost these continual raised expectations have on workplace safety and employee health.

Like many companies across America, UPS employees are under pressure to increase productivity; however, at the same time UPS is pushing employees to reduce workplace injuries and workers’ compensation claims. These two goals seem contradictory, a point that is being made by both UPS employees and union officials who affirm that the longer hours and increased expectations has in fact resulted in more workplace injuries.

The local Chicago union is making a point to emphasize that their request to reduce employee workloads does not come from a desire to shirk their duties; rather, many UPS employees are committed to the company and applaud it as a good place to work. Take for example 45 year-old Joe Korziuk – he’s worked for UPS for over 20 years, performing a wide range of jobs, including driving tractor trailers, delivering packages, and even washing trucks. However, even this model employee has suffered work injuries, sustaining a concussion after a heavy box fell on him, and is experiencing the wear and tear of twenty years on the job in the form of knee and back pain.

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A former railroad worker found not able to pursue his Illinois railroad litigation case because his testifying medical experts were unable to identify the specific cause of the his injuries. The Illinois railroad litigation case was dismissed by the district court, a decision that was then affirmed at the appellate level in the case of Myers v. Illinois Central Railroad Co., d/b/a Canadian National/Illinois Central Railroad Co., No. 10-1279.

Timothy Myers, the 50 year-old plaintiff, had worked for the Illinois Central Railroad for 30 years as a brakeman, switchman, and conductor before retiring. He brought the Federal Employers’ Liability Act (FELA) lawsuit to recover damages for injuries he suffered from cumulative trauma sustained by his elbow, knee, neck and back.

Myers based his FELA lawsuit on reports from three doctors and an ergonomist that opined that his injuries were caused by the railroad’s negligence. However, the court did not consider any of this expert testimony when ruling on the railroad’s motion to dismiss the case. As a result, the court granted a summary judgment in favor of the Illinois Central Railroad, a decision which Myers sought to have appealed by the U.S. Court of Appeals.

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An Illinois chemical plant is denying allegations that toxins it dumped into the groundwater in the 1960s and 1970s is linked to a cancer cluster. Rohm & Haas Chemical Co. insists that the several brain cancer cases occurring among current or former residents near their Illinois plant are an unfortunate coincidence. However, the numerous plaintiffs, some with wrongful death claims, in Branham v. Rohm & Haas Co. disagree. The case is set for trial in Philadelphia and is anticipated to be an eight to 10 week trial.

In addition to the negligence claims against the Illinois plant, the plaintiffs have also accused the company of fraud and covering up the potential dangers of their dumping practices. The lawsuit involves an eight-acre sludge pond located about 50 miles northwest of Chicago that was the dumping site of the plant’s chemicals. The sludge pond was constructed without any liner to prevent these chemicals from leaking into the groundwater. Nearby residents used well water, or groundwater, on a daily basis for everything from drinking to showering and cleaning.

According to the plaintiff’s lawsuit, the toxins in the contaminated water eventually broke down into vinyl chloride, a carcinogen, which was then released into the air whenever the contaminated water was used. While over 30 plaintiffs have individual claims filed against Rohm & Haas, each relies on the same theory of negligence – that their cancers were caused by exposure to groundwater that was contaminated by toxins dumped by the chemical plant into the unlined sludge pond.

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A recent Illinois personal injury lawsuit received a large verdict award, granting $30.4 million to the plaintiff in Solis v. BASF Corp., No. 06 L 12105. Several other parties to the Illinois work place injury lawsuit had settled with the plaintiff prior to trial for undisclosed amounts, but BASF Corp. opted to take the case to trial rather than settling. The supply company’s gamble failed, as evidenced by the positive plaintiff verdict.

In Solis, the plaintiff developed bronchiolitis obliterans.pdf, or ‘popcorn lung disease’, after 18 years of working in various factories. Bronchiolitis obliterans has been linked to exposure to substances used to make microwave popcorn, such as diacetyl.

After being diagnosed with the life-threatening disease, Solis now has a reduced lung capacity of only 25 percent. This means that without a lung transplant the life-long nonsmoker and unmarried father of three could die if he develops the flu or other respiratory diseases. The 45 year-old Illinois resident brought a Cook County workplace injury lawsuit against several parties alleging that his current condition was a result of his exposure to fumes and dust particles while working with artificial butter flavoring.

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A recent Cook County work site injury lawsuit was settled for $3.375 million; Ortiz v. Cato Karabegovic, et al., No. 06 L 006651. Contributing to the settlement were two trucking companies, a truck driver, and a railroad company.

The plaintiff, Ortiz, was a mechanic working at a railroad yard on Chicago’s South Side. While working on the defendant Karabegovic’s truck, Ortiz was severely injured after being dragged for 30 feet underneath the moving truck. As a result of this incident, Ortiz sustained multiple fractures and severe nerve damage to his leg, which left him with a permanent foot drop. The 33 year-old Ortiz is no longer able to work as a mechanic as a result of the injury
However, there was some debate regarding who was liable for the plaintiff’s injury and to what degree the plaintiff contributed to his own accident. Issues of contributory fault are important in Illinois personal injury lawsuits because if the defense can prove that the plaintiff was more than 50% at fault then any judgment entered against the defense is reduced by the degree of plaintiff’s negligence. For example, if a jury returned a $100,000 verdict but found that the plaintiff was 40% negligent, then the jury award would be reduced by 40%, leaving the plaintiff with $60,000.

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