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Age Restriction in Park Not a Liability Shield

The Chicago Park District must do more to publicize playground age restrictions if it wants them to be the basis of legal immunity, a state appeals panel has ruled.

The First District Appellate Court, in an unpublished order decision by Justice Robert E. Gordon, found that signs must be posted at the park and that any ordinances restricting the age of users of playground equipment must be published in order for the park district to claim immunity.

The case, Artenia Bowman v. Chicago Park District, involved a 13-year-old girl who fractured her ankle on a slide with a hole in it, which the park district claimed was intended for children under 12. In July 2011, the child’s mother filed a complaint in Cook County Circuit Court seeking recovery of medical expenses. Bowman alleged that the park district had received several complaints about the broken slide and had failed to fix it.

The park district raised an affirmative defense, arguing that the girl was in violation of an ordinance restricting the use of playgrounds for younger children to those between ages 5 and 12. Whether or not there was a sign indicating the age restriction on the day the girl was injured remained in question, but the trial court granted summary judgment to the park district in June 2013.

On appeal, Judge Gordon wrote that there was no evidence that the park district took measures to enforce the age restrictions, and that there was no way for a child to know that such a restriction existed.

Paul Greenberg of Briskman Briskman & Greenberg represented Bowman. Greenberg noted that while the ordinance in question refers to park equipment intended for use by younger children, it does not specify which equipment or locations are age-restricted. Greenberg said that the ruling is important because the park district will now have to publicize the ordinance and/or post signs if it wants to restrict playground users to certain age groups.

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Personal injury claim not barred by workers’ compensation exclusivity, Illinois Appellate Court rules

An Illinois Appellate Court recently ruled that a worker who allegedly sustained exposure to asbestos while working for his employer between 1966 and 1970 was not barred from pursuing a personal injury claim by the exclusive remedy provisions of the Illinois Workers’ Compensation Act. The claim was not compensable under the Act, as the statute of repose had expired.

In the case of Folta v. Ferro Engineering, James Folta allegedly sustained exposure to asbestos while working for the defendant, his employer, in the time period between 1966 and 1970. Forty-one years later, on May 17, 2011, he was diagnosed with peritoneal mesothelioma. 

Generally, the no-fault compensation provided under the Workers’ Compensation Act is the exclusive remedy for workers whose injuries arise out of and in the course of their employment. However, a statute of repose limits asbestos claims under the Act to a 25-year period from the time the employee was exposed. Another statute of repose limits claims under the Illinois Workers’ Occupational Diseases Act to a three-year period.

The First District Appellate Court ruled that because the plaintiff’s workers’ compensation claim was time-barred, his injury was “not compensable under the Act,” and he could therefore pursue a civil lawsuit against his employer.

Appellate court rules worker’s injury in fall compensable

The Appellate Court of Illinois reversed the judgment of a trial court in a workers’ compensation case, ruling that the worker’s injury in a fall was compensable.

The claimant, Jane R. Brais, suffered an injury to her wrist when she tripped on a faulty sidewalk outside the Kankakee County courthouse, where she worked in the circuit clerk’s office. The trial court affirmed the arbitrator’s decision to deny benefits because the injury did not arise out of the worker’s employment. However, the appeals court reversed and remanded the cause case to the Illinois Workers’ Compensation Commission.

The appeals court found that the claimant was required to attend a meeting at a nearby building and was returning to work through the only entrance that was open at the time. The court found that the cracked sidewalk was a contributing cause of the worker’s injury and that it was a special hazard. The court also said that using the cracked sidewalk was a hazard that was part of the worker’s employment; even though the public also used the sidewalk, the employee was exposed to a greater risk than the public because of the demands of her work. The court said that the only reasonable inference based on the evidence was that the worker’s injuries arose out of her employment.

Special Hazard Rule Covers Employee in Workers’ Compensation Case

In an unpublished opinion, The Illinois Appellate Court held that a bus driver’s injury — resulting from tripping over a mat while leaving a work meeting — arose out of her employment.

The bus driver claimed an injury to her leg while attending a compulsory meeting for 200 workers held at a school. The driver claimed to have tripped over a bunched-up mat as she exited, resulting in a knee injury and distal fracture. The driver claimed workers’ compensation benefits.

The employer did not dispute that the driver was in the course of her employment at the time of the injury, but did dispute the allegation that the injury arose out of her employment.

The Illinois Appellate Court held that the worker was entitled to benefits because she was required to be at the location where the accident occurred and because the location was controlled by her employer. The court rejected the employer’s argument that the case involved the risks inherent to walking on a mat that confront any member of the public. According to the court, the bunched-up mat constituted a “dangerous condition of the premises,” adding that special hazards, when encountered as a result of using ordinary access routes, arise out of employment.

Illinois Supreme Court Allows Mailbox Rule in Workers’ Compensation Case

The Illinois Supreme Court upheld the “mailbox rule” as it applies to workers’ compensation cases. The court held that the petitioner’s appeal to the circuit court was timely filed because it was postmarked by the filing deadline.

Justice Robert R. Thomas, writing for the majority in the 5-2 decision, said that upholding the rule in such cases would bring “harmony and consistency” to the process of review in workers’ compensation cases, because the rule is presumed at other stages of an appeal.

The court also noted that the Illinois General Assembly has specified when the rule is not applicable and in state courts the modern trend is to allow the mailbox rule, essentially equating time of mailing with time of filing.

The decision overturned a ruling by the Workers’ Compensation Commission Division of the Illinois Appellate Court.

The case stems from a lower back injury that a worker received while pulling pins from the ground as part of roadwork for a construction contractor. The worker’s initial claim was denied by an arbitrator, and that decision was upheld by McHenry County Associate Judge Thomas A. Meyer.

The worker’s circuit court filings were received on May 14, 2009, four days after the Illinois Workers’ Compensation Act’s statutory deadline for “commencing” an appeal.

The high court said that the question was whether a proceeding is begun when the appropriate filings are placed in the mailbox or when they are file-stamped by the court clerk. The court observed that appeals to the commission and to the appellate court follow the mailbox rule, and the same rule should apply at every stage of review. The court also said that the legislature is aware that courts have construed statutes as including the mailbox rule and they have precluded it only in the case of certain documents filed under the Election Code.

Employee Claims Retaliation for Filing Workers’ Compensation Claim

An Illinois woman claims she was fired from a retail store because she filed a workers’ compensation claim.

Cynthia Hewitt filed a lawsuit against Casey’s General Store in Maryville. According to the lawsuit, Hewitt began working at the store in September 2011. She claims that she fell and injured her back while moving a tall stepladder inside the store on February 28, 2012. After the injury, Hewitt filed a successful workers’ compensation claim, receiving $220 per week in benefits for total temporary disability beginning March 3, 2012.

Hewitt says in the complaint that she underwent surgery on her back in July 2012 and was approved by her doctor six months later to return to light duty work, meaning she could lift a maximum of 15 pounds. She claims the store refused to assign her to light duty work.

In March 2012, Hewitt says her doctor approved her return to work with no restrictions, and her disability payments ceased. However, according to the lawsuit, the store refused to allow her to return to work. Hewitt claims she applied for unemployment benefits but was denied because her employer had reported that she was “discharged.”

The complaint alleges that the employer’s actions are a violation of the Illinois Workers’ Compensation Act. The lawsuit seeks damages in excess of $50,000.

Employee Denied Workers’ Compensation Benefits for Fall from Chair

The Illinois Workers’ Compensation Commission ruled that a Department of Human Services worker was not entitled to compensation for a fall from a chair, because her work did not expose her to an increased risk of falling.

A security therapy aide employed by the Department of Human Services testified that she was writing notes while sitting on a plastic chair when the chair slipped out from under her and she fell, injuring her back, head and right hand. The worker testified that the floors had been waxed the previous night, and though the chair was not on wheels, it slipped on the floor.

The workers’ compensation arbitrator found that the accident arose out of and in the course of the worker’s employment and awarded permanent partial disability benefits and medical expenses. However, the commission reversed the arbitrator’s decision, finding that the aide was not eligible for benefits.

The commission found that the worker was not exposed to increased risk of falling merely by being seated in the chair and that she did not show how her injuries arose out of her employment. The commission found that the aide did not show a causal relationship between the floors being waxed the previous night and her falling out of her chair.

Worker Claims He Was Fired After Applying for Workers’ Compensation Benefits

A lawsuit has been filed alleging that a worker was fired after applying for workers’ compensation benefits.

Roger Johnson filed suit June 11 in St. Clair County Circuit Court, claiming that he was wrongly discharged. The plaintiff alleges that he was employed by defendant Commercial Transport when he sustained injuries on April 30, 2012. According to the complaint, Johnson filed for workers’ compensation benefits shortly after his injury.

The complaint alleges that Johnson’s employment was terminated after he applied for benefits, a violation of the Illinois Workers’ Compensation Act. The lawsuit states that Johnson lost wages and health and pension benefits and suffered mental anguish and damage to his reputation.

Johnson is seeking damages in excess of $50,000 as well as punitive damages in excess of $50,000, plus costs.

Under the Illinois Workers’ Compensation Act, an employer may not retaliate against a worker for exercising his or her rights in regards to workers’ compensation by discharging, harassing, refusing to rehire, or discriminating against the employee in any way, and violation of this provision may give rise to a cause of action in court.

Nursing Home Sued in Wrongful Death Case

A wrongful death lawsuit has been filed against a nursing home on the South Side of Chicago after a patient, who was allegedly prescribed an overdose of medication, died.

A representative of Sonya Eli file the lawsuit in Cook County Circuit Court, alleging that the woman’s
doctors wrote a prescription for a dangerous combination and dosage of medicine, causing her January 2011 death.

The lawsuit claims that the nursing home, Rainbow Beach Nursing Center, was negligent in administering incorrect doses of medication and failed to properly monitor the patient’s condition. The lawsuit seeks more than $200,000 in damages.

While nursing home residents should be entitled to the highest standard of care, this is often not the case. Neglect, abuse and medical malpractice occur at nursing homes and assisted living facilities all too often, resulting in personal injury or even death. For the victims and families of those who have been victimized, seeking legal representation is often the first step toward proper compensation for harm suffered.

Nursing homes in Illinois are inspected and regulated by the Illinois Department of Public Health (IDPH). The Department conducts more than 10,000 surveys each year, responding to more than 5,000 annual complaints. IDPH also issues quarterly reports of nursing home violations.

Paul Greenberg is a Chicago medical malpractice lawyer and medical malpractice attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

Study Shows Safety Inspections Protect Workers and Do Not Hurt Businesses

Researchers have determined that random inspections of businesses in the United States have a measurable impact on the risk of workers being hurt on the job. Inspections lower the danger for workers, and have no negative effect on the businesses being inspected. The report was published in the journal Science.

According to the study, workplaces chosen randomly for inspections by the California Occupational Safety and Health Administration (OSHA) showed 9.4 percent fewer injuries, than those that did not receive inspections.

The study also found that safety inspections had no measurable negative impact on business. The companies studied had no greater rate of job loss, decreased sales, or reduced credit ratings than those that did not receive inspections.

Over the four decades of its existence, OSHA has been criticized by labor organizations, which claim it does not do enough to protect workers, and business groups, which claim that it creates unnecessary expenses.

The claim of runaway costs was part of the inspiration for the study. Three professors from Harvard Business School, Boston University and the University of California, decided to put the claim to a test. The researchers said they had no particular expectations, because the rhetoric on both sides was so vitriolic that it was difficult to determine the facts, until the study was complete.

Michael Toffel, of Harvard Business School, one of the authors of the study, said “It seemed like a real puzzle that people had such strong opinions without a whole lot of evidence.”

Contact and Chicago construction accident lawyer or Chicago construction accident attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

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