A personal injury plaintiff alleges that: defendant negligently trained, supervised, controlled, managed, and hired employees, so as to allow them to negligently and recklessly operate a forklift in such a manner as to strike plaintiff, causing him injuries. Plaintiff has to present material facts to prove that he has a right to tort damages, and that defendant is civilly liable for his alleged injuries.

A plaintiff cannot pursue a tort action against a defendant if they have an employer-employee relationship. Whether a claimant may pursue a tort action, or is confined to workers’ compensation proceedings depends on whether the acts complained of were normally within an employer-employee relationship.

An employee is: every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.

In determining whether an employment relationship exists: any person rendering service for another, other than as an independent contractor is presumed to be an employee. The most important element in an employer-employee relationship is the alleged employer’s control over the alleged employee with respect to the means and manner in which he is performing the job.

For example, an employer-employee relationship existed between plaintiff and defendant if plaintiff provided services to defendant as a laborer. Defendant had exercised its right to direct and control the mode and manner plaintiff did his work. When defendant did not like the way plaintiff completed a task, defendant’s supervisors would instruct plaintiff as to the correct procedure. When Plaintiff finished an assignment, defendant’s supervisors would direct plaintiff to his next assignment.

When an employer-employee relationship exists between plaintiff and defendant, plaintiff may not pursue a tort action against defendant, and is confined to workers’ compensation for his alleged injuries. Because plaintiff’s injuries are compensatable under worker’s compensation, his right to recover benefits provided by workers’ compensation is the exclusive remedy against defendant.

Liability for workers’ compensation shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of employment. This means that an employer, whether it is negligent or not, has to pay for any injuries that its employees sustain in the course of their duties.

The right to recover workers’ compensation is the sole and exclusive remedy of the employee. This means that an insured employer is not liable for its employees’ industrial injuries under general tort principles. An injured employee’s only remedy is a claim for workers’ compensation.

Can a witness be incriminated for testifying in a deposition in a worker’s compensation, noncriminal proceeding that he used unlawful substances in the past?

There is persuasive authority that might allow a witness to be compelled to testify whether s/he used illegal drugs in the past. Liability for workers’ compensation may exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment in cases, including where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.

If an employee’s injury is caused by his or her unlawful use of a controlled substance, it may be necessary for the employer to ask if the employee had used illegal drugs in the past since that would be a factor in determining whether the employee’s injuries resulted from his/her own intoxication.

If the workers’ compensation case involves a psychiatric injury compensable as a mental disorder which causes disability or need for medical treatment, in order to establish that a psychiatric injury is compensable, an employee may need to demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury. This may allow an employer to inquire into an employee’s past drug use to determine if the employee’s psychiatric injury was caused predominantly by the actual events of employment, or the employee’s own use of illegal substances.

If there is a witness’ communications to a psychotherapist as a patient, the evidence code may not provide for privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if the issue has been tendered by the patient. For example, if the witness is a patient of a pschotherapist, by claiming that the patient has psychiatric injuries, the patient puts his mental condition in issue. There might not be privilege concerning communications with a psychotherapist.

As to the privilege against self-incrimination, the US Constitution states that persons may not be compelled in a criminal cause to be a witness against themselves. The self-incrimination privilege can be claimed in any proceeding, whether criminal, civil, or administrative.

However, the privilege against self-incrimination of a witness is not to keep out probative evidence. The privilege is only to prevent testimony which might be used against him in a subsequent criminal suit. A self-incrimination claim may be rejected if under the circumstances, the witness may not reasonably apprehend that the disclosures could be used against him in a criminal prosecution. For example, a warning against self-incrimination would not be required in a case involving narcotic addiction if narcotic addiction is not criminal conduct.

A party seeking civil relief may not refuse on the grounds of the privilege to testify on matters relevant to his recovery. Courts in several jurisdictions have recognized that injustice may result where the parties to litigation, exercising the constitutional privilege against self-incrimination, refuse to testify concerning matters relevant and material to the issues of the pending cause. To permit relief to someone who refuses to testify on matters which, if known, could prevent recovery, is unfair.

In a workers compensation case for civil relief, a witness who used illegal drugs in the past may be compelled to testify but may not be subject to criminal liability if narcotic addiction is not criminal conduct.

The workers’ compensation system is a tradeoff. In exchange for timely payments, workers give up their common law right to sue their employer for injuries they sustained on the job. Employers, shielded by the possibility of expensive litigation, are required to insure against the possibility of job related injuries. Most employers purchase commercial insurance, but they can self-insure in some situations. The system–designed to limit an employer’s exposure to liability and therefore increase their bottom line- is being attacked.

Employers are not arguing for a repeal of the Illinois Workers Compensation Act, undoubtedly because they receive some benefit from limiting their liability. However, they do claim that Illinois’ current system places too much of the financial burden on the employer. That is why many Illinois employers, including Peoria-based Caterpillar, supported the recent Senate bill that was voted down by Democrats on April 14, 2011. Championed by Rep. Sen. Kyle McCarter of Lebanon, the bill, most notably, would have required injured workers to prove that their workplace is at least 50 percent responsible for the injury or illness. Regardless of the possible merits of the change in the law, it would have drastically changed an injured worker’s ability to be compensated for his injury.

Although the Democrats thwarted this particular bill, both sides of the aisle are looking for some kind of reform, and the Democrats have their own proposals. In fact, Gov. Pat Quinn, in addition to other proposals, has called for a 30 percent cut in rates paid to medical providers. With a similar proposal from the Republicans in the Senate, it is likely that the two sides will find some common ground before the end of the term in June. It remains to be seen what that final bill will look like, but it is evident that the rights of an injured worker in Illinois will likely change before 2011 is over.