97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5532

 

Introduced 2/15/2012, by Rep. Dwight Kay

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 305/6  from Ch. 48, par. 138.6
820 ILCS 310/1  from Ch. 48, par. 172.36

    Amends provisions of the Workers' Compensation Act and the Workers' Occupational Diseases Act creating certain rebuttable presumptions regarding certain conditions of a firefighter, emergency medical technician (EMT), or paramedic by: deleting language including bloodborne pathogens and tuberculosis as conditions to which those provisions apply; adding language making those provisions applicable to an EMT or paramedic cross trained as a firefighter (rather than any EMT or paramedic); and making other changes in the wording of those provisions. Adds language providing that any condition or impairment of health of an employee employed as a firefighter, EMT, or paramedic resulting directly or indirectly from any bloodborne pathogen or tuberculosis resulting in any disability to the employee shall be rebuttably presumed to arise out of and in the course of the employee's firefighting, EMT, or paramedic employment and shall be rebuttably presumed to be causally connected to the hazards or exposures of the employment, subject to specified conditions.


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FISCAL NOTE ACT MAY APPLY
STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

 

 

A BILL FOR

 

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1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Workers' Compensation Act is amended by
5changing Section 6 as follows:
 
6    (820 ILCS 305/6)  (from Ch. 48, par. 138.6)
7    Sec. 6. (a) Every employer within the provisions of this
8Act, shall, under the rules and regulations prescribed by the
9Commission, post printed notices in their respective places of
10employment in such number and at such places as may be
11determined by the Commission, containing such information
12relative to this Act as in the judgment of the Commission may
13be necessary to aid employees to safeguard their rights under
14this Act in event of injury.
15    In addition thereto, the employer shall post in a
16conspicuous place on the place of the employment a printed or
17typewritten notice stating whether he is insured or whether he
18has qualified and is operating as a self-insured employer. In
19the event the employer is insured, the notice shall state the
20name and address of his insurance carrier, the number of the
21insurance policy, its effective date and the date of
22termination. In the event of the termination of the policy for
23any reason prior to the termination date stated, the posted

 

 

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1notice shall promptly be corrected accordingly. In the event
2the employer is operating as a self-insured employer the notice
3shall state the name and address of the company, if any,
4servicing the compensation payments of the employer, and the
5name and address of the person in charge of making compensation
6payments.
7    (b) Every employer subject to this Act shall maintain
8accurate records of work-related deaths, injuries and illness
9other than minor injuries requiring only first aid treatment
10and which do not involve medical treatment, loss of
11consciousness, restriction of work or motion, or transfer to
12another job and file with the Commission, in writing, a report
13of all accidental deaths, injuries and illnesses arising out of
14and in the course of the employment resulting in the loss of
15more than 3 scheduled work days. In the case of death such
16report shall be made no later than 2 working days following the
17accidental death. In all other cases such report shall be made
18between the 15th and 25th of each month unless required to be
19made sooner by rule of the Commission. In case the injury
20results in permanent disability, a further report shall be made
21as soon as it is determined that such permanent disability has
22resulted or will result from the injury. All reports shall
23state the date of the injury, including the time of day or
24night, the nature of the employer's business, the name,
25address, age, sex, conjugal condition of the injured person,
26the specific occupation of the injured person, the direct cause

 

 

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1of the injury and the nature of the accident, the character of
2the injury, the length of disability, and in case of death the
3length of disability before death, the wages of the injured
4person, whether compensation has been paid to the injured
5person, or to his or her legal representative or his heirs or
6next of kin, the amount of compensation paid, the amount paid
7for physicians', surgeons' and hospital bills, and by whom
8paid, and the amount paid for funeral or burial expenses if
9known. The reports shall be made on forms and in the manner as
10prescribed by the Commission and shall contain such further
11information as the Commission shall deem necessary and require.
12The making of these reports releases the employer from making
13such reports to any other officer of the State and shall
14satisfy the reporting provisions as contained in the "Health
15and Safety Act" and "An Act in relation to safety inspections
16and education in industrial and commercial establishments and
17to repeal an Act therein named", approved July 18, 1955, as now
18or hereafter amended. The reports filed with the Commission
19pursuant to this Section shall be made available by the
20Commission to the Director of Labor or his representatives and
21to all other departments of the State of Illinois which shall
22require such information for the proper discharge of their
23official duties. Failure to file with the Commission any of the
24reports required in this Section is a petty offense.
25    Except as provided in this paragraph, all reports filed
26hereunder shall be confidential and any person having access to

 

 

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1such records filed with the Illinois Workers' Compensation
2Commission as herein required, who shall release any
3information therein contained including the names or otherwise
4identify any persons sustaining injuries or disabilities, or
5give access to such information to any unauthorized person,
6shall be subject to discipline or discharge, and in addition
7shall be guilty of a Class B misdemeanor. The Commission shall
8compile and distribute to interested persons aggregate
9statistics, taken from the reports filed hereunder. The
10aggregate statistics shall not give the names or otherwise
11identify persons sustaining injuries or disabilities or the
12employer of any injured or disabled person.
13    (c) Notice of the accident shall be given to the employer
14as soon as practicable, but not later than 45 days after the
15accident. Provided:
16    (1) In case of the legal disability of the employee or any
17dependent of a deceased employee who may be entitled to
18compensation under the provisions of this Act, the limitations
19of time by this Act provided do not begin to run against such
20person under legal disability until a guardian has been
21appointed.
22    (2) In cases of injuries sustained by exposure to
23radiological materials or equipment, notice shall be given to
24the employer within 90 days subsequent to the time that the
25employee knows or suspects that he has received an excessive
26dose of radiation.

 

 

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1    No defect or inaccuracy of such notice shall be a bar to
2the maintenance of proceedings on arbitration or otherwise by
3the employee unless the employer proves that he is unduly
4prejudiced in such proceedings by such defect or inaccuracy.
5    Notice of the accident shall give the approximate date and
6place of the accident, if known, and may be given orally or in
7writing.
8    (d) Every employer shall notify each injured employee who
9has been granted compensation under the provisions of Section 8
10of this Act of his rights to rehabilitation services and advise
11him of the locations of available public rehabilitation centers
12and any other such services of which the employer has
13knowledge.
14    In any case, other than one where the injury was caused by
15exposure to radiological materials or equipment or asbestos
16unless the application for compensation is filed with the
17Commission within 3 years after the date of the accident, where
18no compensation has been paid, or within 2 years after the date
19of the last payment of compensation, where any has been paid,
20whichever shall be later, the right to file such application
21shall be barred.
22    In any case of injury caused by exposure to radiological
23materials or equipment or asbestos, unless application for
24compensation is filed with the Commission within 25 years after
25the last day that the employee was employed in an environment
26of hazardous radiological activity or asbestos, the right to

 

 

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1file such application shall be barred.
2    If in any case except one where the injury was caused by
3exposure to radiological materials or equipment or asbestos,
4the accidental injury results in death application for
5compensation for death may be filed with the Commission within
63 years after the date of death where no compensation has been
7paid or within 2 years after the date of the last payment of
8compensation where any has been paid, whichever shall be later,
9but not thereafter.
10    If an accidental injury caused by exposure to radiological
11material or equipment or asbestos results in death within 25
12years after the last day that the employee was so exposed
13application for compensation for death may be filed with the
14Commission within 3 years after the date of death, where no
15compensation has been paid, or within 2 years after the date of
16the last payment of compensation where any has been paid,
17whichever shall be later, but not thereafter.
18    (e) Any contract or agreement made by any employer or his
19agent or attorney with any employee or any other beneficiary of
20any claim under the provisions of this Act within 7 days after
21the injury shall be presumed to be fraudulent.
22    (f) Any condition or impairment of health of an employee
23employed as a firefighter, or an emergency medical technician
24(EMT) cross trained as a firefighter , or a paramedic cross
25trained as a firefighter which results directly or indirectly
26from any bloodborne pathogen, lung or respiratory disease or

 

 

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1condition, heart or vascular disease or condition,
2hypertension, tuberculosis, or cancer resulting in any
3disability (temporary, permanent, total, or partial) to such
4the employee shall be rebuttably presumed to arise out of and
5in the course of such the employee's firefighting, EMT, or
6paramedic employment and, further, shall be rebuttably
7presumed to be causally connected to the hazards or exposures
8of the employment. This presumption shall also apply to any
9hernia or hearing loss suffered by such an employee employed as
10a firefighter, EMT, or paramedic. However, this presumption
11shall not apply to any employee who has been employed as a
12firefighter, EMT, or paramedic for less than 5 years at the
13time he or she files an Application for Adjustment of Claim
14concerning this condition or impairment with the Illinois
15Workers' Compensation Commission. The Finding and Decision of
16the Illinois Workers' Compensation Commission under only the
17rebuttable presumption provision of this subsection shall not
18be admissible or be deemed res judicata in any disability claim
19under the Illinois Pension Code arising out of the same medical
20condition; however, this sentence makes no change to the law
21set forth in Krohe v. City of Bloomington, 204 Ill.2d 392.
22    (g) Any condition or impairment of health of an employee
23employed as a firefighter, emergency medical technician (EMT),
24or paramedic which results directly or indirectly from any
25bloodborne pathogen or tuberculosis resulting in any
26disability (temporary, permanent, total, or partial) to the

 

 

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1employee shall be rebuttably presumed to arise out of and in
2the course of the employee's firefighting, EMT, or paramedic
3employment and, further, shall be rebuttably presumed to be
4causally connected to the hazards or exposures of the
5employment. However, this presumption shall not apply to any
6employee who has been employed as a firefighter, EMT, or
7paramedic for less than 5 years at the time he or she files an
8Application for Adjustment of Claim concerning this condition
9or impairment with the Illinois Workers' Compensation
10Commission. The Finding and Decision of the Illinois Workers'
11Compensation Commission under only the rebuttable presumption
12provision of this paragraph shall not be admissible or be
13deemed res judicata in any disability claim under the Illinois
14Pension Code arising out of the same medical condition;
15however, this sentence makes no change to the law set forth in
16Krohe v. City of Bloomington, 204 Ill.2d 392.
17(Source: P.A. 95-316, eff. 1-1-08.)
 
18    Section 10. The Workers' Occupational Diseases Act is
19amended by changing Section 1 as follows:
 
20    (820 ILCS 310/1)  (from Ch. 48, par. 172.36)
21    Sec. 1. This Act shall be known and may be cited as the
22"Workers' Occupational Diseases Act".
23    (a) The term "employer" as used in this Act shall be
24construed to be:

 

 

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1        1. The State and each county, city, town, township,
2    incorporated village, school district, body politic, or
3    municipal corporation therein.
4        2. Every person, firm, public or private corporation,
5    including hospitals, public service, eleemosynary,
6    religious or charitable corporations or associations, who
7    has any person in service or under any contract for hire,
8    express or implied, oral or written.
9        3. Where an employer operating under and subject to the
10    provisions of this Act loans an employee to another such
11    employer and such loaned employee sustains a compensable
12    occupational disease in the employment of such borrowing
13    employer and where such borrowing employer does not provide
14    or pay the benefits or payments due such employee, such
15    loaning employer shall be liable to provide or pay all
16    benefits or payments due such employee under this Act and
17    as to such employee the liability of such loaning and
18    borrowing employers shall be joint and several, provided
19    that such loaning employer shall in the absence of
20    agreement to the contrary be entitled to receive from such
21    borrowing employer full reimbursement for all sums paid or
22    incurred pursuant to this paragraph together with
23    reasonable attorneys' fees and expenses in any hearings
24    before the Illinois Workers' Compensation Commission or in
25    any action to secure such reimbursement. Where any benefit
26    is provided or paid by such loaning employer, the employee

 

 

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1    shall have the duty of rendering reasonable co-operation in
2    any hearings, trials or proceedings in the case, including
3    such proceedings for reimbursement.
4        Where an employee files an Application for Adjustment
5    of Claim with the Illinois Workers' Compensation
6    Commission alleging that his or her claim is covered by the
7    provisions of the preceding paragraph, and joining both the
8    alleged loaning and borrowing employers, they and each of
9    them, upon written demand by the employee and within 7 days
10    after receipt of such demand, shall have the duty of filing
11    with the Illinois Workers' Compensation Commission a
12    written admission or denial of the allegation that the
13    claim is covered by the provisions of the preceding
14    paragraph and in default of such filing or if any such
15    denial be ultimately determined not to have been bona fide
16    then the provisions of Paragraph K of Section 19 of this
17    Act shall apply.
18        An employer whose business or enterprise or a
19    substantial part thereof consists of hiring, procuring or
20    furnishing employees to or for other employers operating
21    under and subject to the provisions of this Act for the
22    performance of the work of such other employers and who
23    pays such employees their salary or wage notwithstanding
24    that they are doing the work of such other employers shall
25    be deemed a loaning employer within the meaning and
26    provisions of this Section.

 

 

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1    (b) The term "employee" as used in this Act, shall be
2construed to mean:
3        1. Every person in the service of the State, county,
4    city, town, township, incorporated village or school
5    district, body politic or municipal corporation therein,
6    whether by election, appointment or contract of hire,
7    express or implied, oral or written, including any official
8    of the State, or of any county, city, town, township,
9    incorporated village, school district, body politic or
10    municipal corporation therein and except any duly
11    appointed member of the fire department in any city whose
12    population exceeds 500,000 according to the last Federal or
13    State census, and except any member of a fire insurance
14    patrol maintained by a board of underwriters in this State.
15    One employed by a contractor who has contracted with the
16    State, or a county, city, town, township, incorporated
17    village, school district, body politic or municipal
18    corporation therein, through its representatives, shall
19    not be considered as an employee of the State, county,
20    city, town, township, incorporated village, school
21    district, body politic or municipal corporation which made
22    the contract.
23        2. Every person in the service of another under any
24    contract of hire, express or implied, oral or written, who
25    contracts an occupational disease while working in the
26    State of Illinois, or who contracts an occupational disease

 

 

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1    while working outside of the State of Illinois but where
2    the contract of hire is made within the State of Illinois,
3    and any person whose employment is principally localized
4    within the State of Illinois, regardless of the place where
5    the disease was contracted or place where the contract of
6    hire was made, including aliens, and minors who, for the
7    purpose of this Act, except Section 3 hereof, shall be
8    considered the same and have the same power to contract,
9    receive payments and give quittances therefor, as adult
10    employees. An employee or his or her dependents under this
11    Act who shall have a cause of action by reason of an
12    occupational disease, disablement or death arising out of
13    and in the course of his or her employment may elect or
14    pursue his or her remedy in the State where the disease was
15    contracted, or in the State where the contract of hire is
16    made, or in the State where the employment is principally
17    localized.
18    (c) "Commission" means the Illinois Workers' Compensation
19Commission created by the Workers' Compensation Act, approved
20July 9, 1951, as amended.
21    (d) In this Act the term "Occupational Disease" means a
22disease arising out of and in the course of the employment or
23which has become aggravated and rendered disabling as a result
24of the exposure of the employment. Such aggravation shall arise
25out of a risk peculiar to or increased by the employment and
26not common to the general public.

 

 

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1    A disease shall be deemed to arise out of the employment if
2there is apparent to the rational mind, upon consideration of
3all the circumstances, a causal connection between the
4conditions under which the work is performed and the
5occupational disease. The disease need not to have been
6foreseen or expected but after its contraction it must appear
7to have had its origin or aggravation in a risk connected with
8the employment and to have flowed from that source as a
9rational consequence.
10    An employee shall be conclusively deemed to have been
11exposed to the hazards of an occupational disease when, for any
12length of time however short, he or she is employed in an
13occupation or process in which the hazard of the disease
14exists; provided however, that in a claim of exposure to atomic
15radiation, the fact of such exposure must be verified by the
16records of the central registry of radiation exposure
17maintained by the Department of Public Health or by some other
18recognized governmental agency maintaining records of such
19exposures whenever and to the extent that the records are on
20file with the Department of Public Health or the agency.
21    Any injury to or disease or death of an employee arising
22from the administration of a vaccine, including without
23limitation smallpox vaccine, to prepare for, or as a response
24to, a threatened or potential bioterrorist incident to the
25employee as part of a voluntary inoculation program in
26connection with the person's employment or in connection with

 

 

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1any governmental program or recommendation for the inoculation
2of workers in the employee's occupation, geographical area, or
3other category that includes the employee is deemed to arise
4out of and in the course of the employment for all purposes
5under this Act. This paragraph added by Public Act 93-829 is
6declarative of existing law and is not a new enactment.
7    The employer liable for the compensation in this Act
8provided shall be the employer in whose employment the employee
9was last exposed to the hazard of the occupational disease
10claimed upon regardless of the length of time of such last
11exposure, except, in cases of silicosis or asbestosis, the only
12employer liable shall be the last employer in whose employment
13the employee was last exposed during a period of 60 days or
14more after the effective date of this Act, to the hazard of
15such occupational disease, and, in such cases, an exposure
16during a period of less than 60 days, after the effective date
17of this Act, shall not be deemed a last exposure. If a miner
18who is suffering or suffered from pneumoconiosis was employed
19for 10 years or more in one or more coal mines there shall,
20effective July 1, 1973 be a rebuttable presumption that his or
21her pneumoconiosis arose out of such employment.
22    If a deceased miner was employed for 10 years or more in
23one or more coal mines and died from a respirable disease there
24shall, effective July 1, 1973, be a rebuttable presumption that
25his or her death was due to pneumoconiosis.
26    Any condition or impairment of health of an employee

 

 

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1employed as a firefighter, or an emergency medical technician
2(EMT) cross trained as a firefighter , or a paramedic cross
3trained as a firefighter which results directly or indirectly
4from any bloodborne pathogen, lung or respiratory disease or
5condition, heart or vascular disease or condition,
6hypertension, tuberculosis, or cancer resulting in any
7disability (temporary, permanent, total, or partial) to such
8the employee shall be rebuttably presumed to arise out of and
9in the course of such the employee's firefighting, EMT, or
10paramedic employment and, further, shall be rebuttably
11presumed to be causally connected to the hazards or exposures
12of the employment. This presumption shall also apply to any
13hernia or hearing loss suffered by such an employee employed as
14a firefighter, EMT, or paramedic. However, this presumption
15shall not apply to any employee who has been employed as a
16firefighter, EMT, or paramedic for less than 5 years at the
17time he or she files an Application for Adjustment of Claim
18concerning this condition or impairment with the Illinois
19Workers' Compensation Commission. The Finding and Decision of
20the Illinois Workers' Compensation Commission under only the
21rebuttable presumption provision of this paragraph shall not be
22admissible or be deemed res judicata in any disability claim
23under the Illinois Pension Code arising out of the same medical
24condition; however, this sentence makes no change to the law
25set forth in Krohe v. City of Bloomington, 204 Ill.2d 392.
26    The insurance carrier liable shall be the carrier whose

 

 

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1policy was in effect covering the employer liable on the last
2day of the exposure rendering such employer liable in
3accordance with the provisions of this Act.
4    Any condition or impairment of health of an employee
5employed as a firefighter, emergency medical technician (EMT),
6or paramedic which results directly or indirectly from any
7bloodborne pathogen or tuberculosis resulting in any
8disability (temporary, permanent, total, or partial) to the
9employee shall be rebuttably presumed to arise out of and in
10the course of the employee's firefighting, EMT, or paramedic
11employment and, further, shall be rebuttably presumed to be
12causally connected to the hazards or exposures of the
13employment. However, this presumption shall not apply to any
14employee who has been employed as a firefighter, EMT, or
15paramedic for less than 5 years at the time he or she files an
16Application for Adjustment of Claim concerning this condition
17or impairment with the Illinois Workers' Compensation
18Commission. The Finding and Decision of the Illinois Workers'
19Compensation Commission under only the rebuttable presumption
20provision of this paragraph shall not be admissible or be
21deemed res judicata in any disability claim under the Illinois
22Pension Code arising out of the same medical condition;
23however, this sentence makes no change to the law set forth in
24Krohe v. City of Bloomington, 204 Ill.2d 392.
25    (e) "Disablement" means an impairment or partial
26impairment, temporary or permanent, in the function of the body

 

 

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1or any of the members of the body, or the event of becoming
2disabled from earning full wages at the work in which the
3employee was engaged when last exposed to the hazards of the
4occupational disease by the employer from whom he or she claims
5compensation, or equal wages in other suitable employment; and
6"disability" means the state of being so incapacitated.
7    (f) No compensation shall be payable for or on account of
8any occupational disease unless disablement, as herein
9defined, occurs within two years after the last day of the last
10exposure to the hazards of the disease, except in cases of
11occupational disease caused by berylliosis or by the inhalation
12of silica dust or asbestos dust and, in such cases, within 3
13years after the last day of the last exposure to the hazards of
14such disease and except in the case of occupational disease
15caused by exposure to radiological materials or equipment, and
16in such case, within 25 years after the last day of last
17exposure to the hazards of such disease.
18(Source: P.A. 95-316, eff. 1-1-08; 95-331, eff. 8-21-07.)