This is the best time of year to settle your Illinois workers' compensation case

Fair or not, sometimes Illinois workers’ compensation law is a game.  You are looking at your case based on how it affects your life because, after all, it’s your life and health that is being messed with when you get hurt while working.

But from the insurance company standpoint, specifically the adjuster who usually is in charge of settling your case, they are looking out for their own financial well being.  For many of them, that means getting a bonus based on the number of cases that they close by the end of the year.

A lot of insurance company workers don’t get paid based on how good of a job they do, but instead based on how many files they are able to move.  So while they won’t just give you whatever you want, they are thinking of themselves this time of year, so if there is a case they can settle, they will.

In the insurance industry (and I know this from my former days as a defense attorney) there is a saying that there is no good file other than a closed file.  When your case is open that means they are paying lawyer or nurse case managers or investigators and possibly more medical bills.  Insurance companies like fixed numbers, not the possibility of having to pay more. 

So what happens is that the insurance adjuster will set what is called a reserve on your case.  That in plain English is the most that they expect to spend on your claim.  If they stay below the reserve number, they can usually close a case without having to get the approval of a supervisor.  And if they close your file and a bunch of others, that’s more money in their pocket for Christmas presents or a trip or whatever. 

Beyond that, they are really getting pressure at this time of year from their supervisors to move files because they supervisors also get compensated this way.  So we’ll see a lot of “settlement days” this time of year where they’ll meet with attorneys en masse and try to work out a lot of cases.

Now you don’t want to even think about settling if you are still under medical care or not working due to an injury. But if your back to work and don’t need to see the doctor again, your attorney should really be pushing for a settlement and be aggressive about it.

Come spring time, the insurance company will not be as anxious to get rid of you.  They’ll settle if it makes sense, but at this time of the year, they’ll practically beg you to do it.

I remember once long ago an adjuster telling me that she’d settle for what I asked for – which was more than the case was worth – but only if I promised to have the contracts approved before the end of the year.  That was really the first time I realized how the business really works and I’ve seen it many times since.

So if you do want a settlement, remember, there is no better time of year than now to make it happen.

 

Do your TTD and Medical benefits continue before a settlement is approved?

A reader of my blog contacted me because he had a question about the settlement of his Illinois workers’ compensation case.  To be clear, his claim is not being handled by my office or anyone that I recommend in my state wide network of attorneys.  But like many readers, he contacted me because he knows I will answer questions.

The gist of his complaint is that his case was settled in July and it is now October and he still hasn’t been paid the settlement.  Before he agreed to settle, he was receiving TTD benefits and had occasional medical treatment that is no longer being paid.

First off, I question why he would settle his case if he was still receiving medical care and being paid for being off of work.  If he is, then the settlement contracts should be for a larger dollar amount and there needs to be some built in protection for his medical costs.  If he was my client, I would want to know that he has a suitable job waiting for him that he can work and will not cause a big wage loss.  In the alternative, I’d want to know that this is really best for him.  For example, some clients have moved out of state to be closer to family with the settlement they’ve received.

So it’s unusual to settle in this type of situation, but not unheard of if the dollar amount is fair and in your best interests, not that of your lawyer or the insurance company.

But if you are going to settle a case while you are getting paid, you should insist that a clause be inserted in to the contract that will require the insurance company to pay you up until the approval date by an arbitrator.  This will protect you if there are delays and will motivate the insurance company attorney to act fast.

We typically use this type of clause when we’ve gone to trial on a case and won and have a client that is receiving weekly benefits for something like a wage differential or permanent disability.  Typically what happens is someone in the insurance company after a year or two has gone by will contact your lawyer and ask to settle the case outright.  They don’t always do that after the trial, but eventually an underwriter comes in and wants to get the case off their books so they agree to settle for a fair amount.

When that happens, we’ll insist that the weekly benefit checks be continued until the contract is approved.   Otherwise you are likely going to lose out on a few thousand dollars while some paper pushers are dotting their I’s and crossing their T’s.  That’s their problem, not yours and you shouldn’t suffer as a result.

What’s insane about the question from this reader is that I can’t imagine any circumstance where the insurance company wouldn’t have agreed to continue TTD benefits has his attorney asked for it.  They have no leverage in this situation because if the settlement goes away, they still are paying TTD.

My guess is that the attorney didn’t want to risk losing a settlement so instead of acting in the best interests of his client, he acted in his own best interests.  Which is rather sad.

 

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Workers' compensation benefits in Illinois after a death

A reader asked the following:

My husband was on workers compensation and after awhile died of heart attack.  The compensation for the claim settlement never came about even though he was deemed disable from work injury.  I was told that since he died the claim was closed and I was not entitled to any claim compensation.  Is that true?

I don’t claim to be the best attorney in the world, but it stuns me how many incompetent ones are out there.  This is not true.  If you have a work injury and die of unrelated causes, your estate can make a claim for a settlement.

My guess is that the lawyer who handled this case isn’t actually incompetent, but rather just not very experienced with Illinois workers’ compensation claims.

In some personal injury claims, if you die of unrelated causes after an accident, the case is pretty much done.  I’d bet a nickel that the lawyer here is more of an auto accident guy that a work comp guy. 

In Illinois, we attorneys are not by law allowed to call ourselves experts or specialists.  But just as you would look for a doctor that focuses on one area of medicine, you should be seeking a firm that focuses primarily on work injuries.  When you get someone that is more of a jack of all trades, that’s when trouble starts.

We can’t promise you a result, but we do guarantee that every lawyer in our state-wide network of attorneys has a primary focus on representing injured workers.  That, in my opinion, is the first step toward having a successful case result.  Of course they also provide great customer service which shouldn’t be that hard, but for whatever reason is for many firms.  By that I mean the lawyers I work with and recommend will return your phone calls, explain the law to you and fight to get the best result possible.

When you have an attorney like this, you don’t need to worry about simple questions, such as what happens to a case when a worker dies, being answered incorrectly.

On another note, in a case like this, I’d want to know if the job injury somehow contributed to the heart attack.  Perhaps the decedent gained a ton of wait after his injury and that contributed to his death.  Perhaps the medication he was on played a role.  Maybe it was nothing, but you always want to try and overturn every stone to see what might be there.  If in fact the job accident contributed to the heart attack, his widow could be entitled to hundreds of thousands of dollars.  It all goes back to the point of getting an advocate for your case that knows what they are doing.

 

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A new insurance company lie in Illinois

I have a good friend that is a workers’ compensation lawyer in Florida.  I have referred him cases and the ones that he’s able to take on he does a great job with them.  The problem is that he has to turn down a lot of clients because in many cases he can only get them a settlement from the insurance company if they are willing to quit their job.  It sounds pretty illegal to me and it would never happen in Illinois, but it does prevent him from taking some cases on.  Of course it’s the workers that end up getting screwed over in the end.

I say it could never happen in Illinois because if the insurance company doesn’t want to offer a settlement we can force one by going to arbitration.

But recently a caller to my office told me that the insurance company told him that any payment for permanent partial disability to him would have to come with a resignation and if he didn’t provide one he’d get nothing.

That is a total lie.  They might not voluntarily pay anything, but again we can easily get him compensated by filing a trial motion. 

Nothing in Illinois law requires you to resign.  Ever.  They wanted my caller to do that because he is fairly old and had a major injury that does not allow him to return to his old job.  If he were to resign it would greatly reduce the amount of money that the insurance company would have to pay him.

So essentially he was lied to in order to save some money.  That’s a pretty immoral thing to do, but it’s the type of nonsense that you see all of the time.  It just happens that this is the first time I’ve heard this angle.

Like with any other workers’ compensation claim in Illinois, you have to realize that the insurance company has a competing interest to what’s best for you.  That doesn’t mean you are always going to get in to a battle or go to trial.  It does mean that you are going to look out for yourself and not take legal advice from someone with a competing interest from you.

And overall, if they are saying something that sounds ridiculous, they are probably just throwing a dart against the wall and hoping that it sticks. 

Do I Need a Lawyer if I'm Injured at Work?

A reader contacted us and wanted to know if she needed an attorney.  The insurance company assigned her a nurse case manager to her claim.  That person told her a lawyer isn’t needed.  Her co-workers are telling her she’s crazy if she tries to go at this alone and that the nurse case manager is trying to screw her over.

So who is right?

I’d say that they both are, but that’s a bit misleading.  The nurse case manager is never going to tell you that you need an attorney.  She has a conflict of interest as she works for the insurance company.  Their goal is to limit what they have to pay for your care.  So she’ll never you say you need a lawyer because if they are breaking the law or taking away benefits you are entitled to, they don’t want you to know that you could do better.

That said, there are certainly times an attorney won’t make much of a difference.  This is especially true with minor injuries that heal quickly.  It could also be true in cases where there is an amputation, but no job or wage loss.  It could even be true in a death case if all the benefits are being paid, but with both amputations and death cases, if there is no dispute, the lawyer fee is limited to $100 so there would be no reason not to get help.

But in general the co-workers are correct.  Things don’t always get out of hand in these cases, but if they do and you aren’t already represented, it will greatly delay your ability to get in to court to get a fair hearing.

Most people I talk to that don’t get a lawyer make that decision because they don’t want to pay the 20% fee when the case is ready to settle.  The problem is that there’s no guarantee you will even get a settlement offer and when you do, it’s most likely to be a low ball offer.  This is especially true since the law on settlements changed in 2011 with the introduction of AMA guidelines being a factor in these cases.  Those guidelines have caused many offers to be woefully low.

But the biggest benefit you’ll get from having an attorney, or at least if you have one that really looks out for you, is that you’ll not get taken advantage of along the way.  Most people don’t know that the nurse case manager isn’t supposed to talk to your doctor, cancel your appointments or in any way interfere with your treatment.  Some people don’t know that they shouldn’t give a recorded statement.  Others will end up paying co-pays with their doctors or out of pocket expenses.  If you are being sent for an IME you should know what to expect.  Once you settle your case, it closes out your medical rights forever for that injury.  A good attorney will make sure that your future needs are looked out for.  If you settle without taking in to consideration any future Medicare or social security issues, you might end up owing the government a bunch of money.

I could go on and on, but the point is that you don’t know what you don’t know.  And that is the biggest benefit for having an attorney.  I talk to people every month who want to re-open a case because they’ve realized that they should have had representation.  But once the case is done, it’s done forever.

 

I’d say that they both are, but that’s a bit misleading.  The nurse case manager is never going to tell you that you need an attorney.  She has a conflict of interest as she works for the insurance company.  Their goal is to limit what they have to pay for your care.  So she’ll never you say you need a lawyer because if they are breaking the law or taking away benefits you are entitled to, they don’t want you to know that you could do better.

That said, there are certainly times an attorney won’t make much of a difference.  This is especially true with minor injuries that heal quickly.  It could also be true in cases where there is an amputation, but no job or wage loss.  It could even be true in a death case if all the benefits are being paid, but with both amputations and death cases, if there is no dispute, the lawyer fee is limited to $100 so there would be no reason not to get help.

But in general the co-workers are correct.  Things don’t always get out of hand in these cases, but if they do and you aren’t already represented, it will greatly delay your ability to get in to court to get a fair hearing.

Most people I talk to that don’t get a lawyer make that decision because they don’t want to pay the 20% fee when the case is ready to settle.  The problem is that there’s no guarantee you will even get a settlement offer and when you do, it’s most likely to be a low ball offer.  This is especially true since the law on settlements changed in 2011 with the introduction of AMA guidelines being a factor in these cases.  Those guidelines have caused many offers to be woefully low.

But the biggest benefit you’ll get from having an attorney, or at least if you have one that really looks out for you, is that you’ll not get taken advantage of along the way.  Most people don’t know that the nurse case manager isn’t supposed to talk to your doctor, cancel your appointments or in any way interfere with your treatment.  Some people don’t know that they shouldn’t give a recorded statement.  Others will end up paying co-pays with their doctors or out of pocket expenses.  If you are being sent for an IME you should know what to expect.  Once you settle your case, it closes out your medical rights forever for that injury.  A good attorney will make sure that your future needs are looked out for.  If you settle without taking in to consideration any future Medicare or social security issues, you might end up owing the government a bunch of money.

I could go on and on, but the point is that you don’t know what you don’t know.  And that is the biggest benefit for having an attorney.  I talk to people every month who want to re-open a case because they’ve realized that they should have had representation.  But once the case is done, it’s done forever.

What if my employer doesn't have workers' compensation insurance?

Illinois law requires most employers to carry workers’ compensation insurance. It’s estimated that more than 90% of Illinois employees are covered. When a worker gets hurt on the job, the employer’s insurance company pays out benefits to that worker.

The law specifically says that employers must insure all employees who work in Illinois, as well as those who are hired in Illinois or injured here. Employers who work for themselves and have no employees do not need to get workers’ compensation insurance, but if they have just one employee, even if it’s a part-time employee, the law applies and they must carry insurance. Employees are covered by Illinois workers’ compensation law the minute they get hired. There is no waiting period.

Employees generally aren’t allowed to sue their employers for negligence after a work injury, even if it was the employer’s fault. That’s just the way the law works. It’s a trade-off. Employers are protected from lawsuits and employees are given benefits without having to prove fault or go through the litigation process. However, if an employer knowingly fails to carry insurance for its employees, then an injured employee may be able to sue their employer in court.

You can search online to see if your employer has coverage, although your employer is supposed to post this information in a place where employees can easily see it. Employers who break the law and fail to get insurance can be fined up to $500 per day. Employees who report employers for non-compliance are allowed to remain anonymous. 

If your employer tells you that you can’t file a claim because they don’t have insurance, don’t take that as the final answer. Find out if they really do have insurance. Similarly, if your employer tells you that you don’t qualify for workers’ compensation, look into it for yourself. We talk to people whose employers seem to do anything they can to keep them from filing a claim. They do this to save money but it can really hurt your health and your ability to continue to work and be financially independent. Don’t get intimidated.

There are some rare exceptions, but the general rule is that employers have to carry insurance coverage for their Illinois employees. If you suffer an injury, the benefits you’re entitled to under Illinois law can make a big difference. Not only can you get coverage of 100% of your medical expenses, including doctor visits, tests, prescriptions, and even surgery, but you can collect 2/3 of your average weekly wage if you can’t work because of your injury. If you have questions, don’t hesitate to give us a call.

Can I get workers' compensation for my injury?

Most people who suffer a job injury don’t know much about workers’ compensation, which makes sense. It’s not something you’d look into unless and until you have a need for it. So one of the main questions we get about Illinois work injury law is “Am I covered?”

This area of law is very fact specific, so we don’t usually have a good answer until we talk to the person and ask them questions about what happened, what their job entails, where they work, etc. However, if you’re looking for the basics, here is what matters:

How your injury relates to your job. This is a huge question with many relevant factors. In general, however, your injury has to be caused by your job. If you fall off a ladder while changing a light bulb in the retail store where you work, then that is work related. Even if you are a cashier, you were doing something for your employer. If you have a heart attack while doing your job as a cashier, then that probably isn’t work related. A heart attack while the retail store is being robbed would be another story. Again, there are so many possible scenarios.

Whether you are an employee. In order to be eligible for workers’ compensation in Illinois, you have to be an employee. Part-time and brand-new employees should be covered. Volunteers and independent contractors are not included – just make sure you really are an independent contractor. Employers sometimes mislabel their employees.

The date of your injury. There are deadlines for filing a claim and notifying your employer. If you miss these deadlines, it could hurt your claim or possibly end it altogether. The law in Illinois requires you to notify your employer of a work injury within 45 days. The deadline for filing a claim is longer, although you shouldn’t delay. You have three years from the date of injury or two years from the last payment of benefits (if you received any), whichever is later.

Your doctor’s opinion. If you haven’t yet seen a doctor, it’s important that you do so. The medical opinion of a reputable doctor is extremely important in a workers’ compensation claim. If the insurance company has to pay you because you can’t work, they’re going to make sure it’s true that you can’t work. They’ll be looking for a credible opinion.

Whether you call us or talk to another attorney, you’ll likely get asked more specific questions. If you’re new to this area of law, the main things to do are see a doctor and notify your employer. Skipping these steps, or putting them off, can hurt your claim. Then, you can look into what you need to do to get medical benefits and temporary total disability payments if they haven’t already started.

Nursing home employees face unique risks on the job

We get a good number of calls from Illinois nursing home employees who have suffered a work accident or injury. It makes sense, considering the physical nature of the job. In fact, nursing home employees are often considered high risk for work injuries.

For example, nursing home employees are at risk for slip and fall accidents, as floors aren’t always kept clear of water and other substances. And workers are often in a hurry due to the demands of residents and patients. The workers are moving equipment and most significantly, they are lifting and moving residents. On top of all of this, their work is unpredictable and an agitated patient can turn a routine task into something dangerous. Even the exposure to illness is greater than it is for most other types of employees.

So it’s not a surprise that we hear from nursing home employees who are wondering whether they have a workers’ compensation claim. And in fact, many of them do. This means that they get their medical care paid for, and if they can’t work, they can get temporary total disability payments, which should cover 2/3 of their lost wages.

In order for an injury to be covered, it has to “arise out of and in the course of” your employment, according to Illinois workers’ compensation law. This essentially means that it has to be caused by your job. It’s impossible to specifically define what that means because each situation is different and the particular facts matter – where you were, what you were doing, etc.

Some people ask whether it matters if you had an existing injury or condition. Usually, it does not matter and you should still be covered if your job aggravated or accelerated your existing condition. These cases might be contested, meaning that the insurance company is denying your claim and saying your injury was not work related, but a good attorney will be able to tell you whether you still have a shot. Many times the insurance company is just trying to get out of paying.

Nursing home employees also are susceptible to repetitive stress or repetitive trauma injuries. These are injuries that occur over time from using a part of your body in the same way over and over again. For example, lifting heavy objects day after day can eventually cause an injury, as can repeated bending, twisting, or reaching. These injuries usually aren’t sudden. Again, this might make your case a little more complicated, since the insurance company might see a opportunity to deny your claim, but if you have a good doctor and an experienced attorney, you should be able to prove your work injury.

Before worrying about whether you have a claim for benefits, get the medical attention that you need. Put your health first. It’s best for you and for your claim if you see a doctor when necessary. Then, you can notify your employer, file a claim and hopefully starting getting your benefits.

Independent contractors and work injuries in Illinois

Unfortunately, not all workers are considered employees under Illinois workers’ compensation law. This matters because only employees get benefits, which include payment of medical expenses and lost pay.

Independent contractors are not employees under this law and not entitled to coverage if injured on the job. It can be frustrating because many employers treat their employees and independent contractors the same. What’s worse is that some employers label their employees as “independent contractors” because it’s in their own best interest. For one, if that worker gets hurt, the employer doesn’t have to pay workers’ compensation. 

The law in Illinois addresses this situation by creating its own definitions of employee and independent contractor. Ultimately, it’s not up to your employer to pick and choose. So the number one piece of advice lawyers should give an injured independent contractor is to make sure they’re truly an independent contractor under the law.

So what’s the legal difference? It comes down to how much control your employer has over your work. The more control they have, the more likely it is that you’re an employee, even if they call you a contractor. If, on the other hand, you are very independent, then their label of independent contractor might be correct.

More specifically, here is what we mean by control. If your boss sets your hours, hands out your assignments, requires a uniform, provides a uniform, provides tools or equipment, or requires you to perform your job in a certain way, it shows control. If you decide when, where and how to do your work, then there is less control.

It can be difficult to judge how much control your employer has over your work, especially if you’ve only had a handful of jobs. An experienced workers’ compensation attorney should have a broader perspective because they have evaluated similar situations for many, many workers. They will be able to explain how the law works in your specific situation.

The take-away here is to not give up on benefits because your employer calls you an independent contractor. Make sure. Get legal advice. If you’re actually an employee and eligible for benefits, it can make a big difference. A work injury, especially one that prevents you from doing your job or a serious injury that requires surgery and a long recovery, can really turn things upside down. Workers’ compensation benefits, if you’re eligible, can help you keep control of your life.

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When to report a work accident to your employer

In Illinois, employees are entitled to certain benefits if they get injured on the job. For any injury that arises out of your employment you should be eligible for payment of 100% of your medical expenses and payment of a portion of your lost wages if you are unable to work while you recover. In order to get these benefits, you have to follow a few rules.

One of the initial rules you need to be aware of is employer notification. The law says that you must notify your employer of a job injury within 45 days. If you fail to do this, your claim for benefits could be denied and you might miss out on the compensation you need, even if you have a legitimate work injury. That said, if you think you have already missed the deadline, don’t give up. Check with an experienced Illinois work injury attorney as soon as possible.

Ideally, you should notify your employer much sooner than 45 days. It doesn’t have to be complicated. You can just tell your supervisor that you got hurt and include the when and where. Your notice is considered sufficient if it gives them enough information to look into it further. However, like most things, it’s safest to put it in writing. Don’t forget to include the date.

The problem with delaying on this is that the more time that passes, the harder it is to prove that your job caused the injury. And the connection to your job is what will get you benefits. For example, if you come back after a long weekend and tell your boss “I hurt my back at work last week” they might be suspicious that you actually hurt yourself at home over the weekend. 

Don’t trust that your employer, or their insurance company that is paying out the benefits, is going to give you the benefit of the doubt. Even if you have a good relationship with your employer, they’ll most likely jump at the chance to deny your claim. The insurance company makes money when they don’t pay, and their priority is their bottom line.

For most work accidents, the date of injury is clear. It’s the date on which you had the accident. For repetitive trauma injuries, on the other hand, the date of injury is less clear. The law says that you have 45 days from the date on which you realized that your injury was caused by your work. So this could be the day that you see your doctor for the pain in your hand and wrist and they tell you that it’s carpal tunnel syndrome and most likely caused by your work. Again, as soon as you know you have a work injury, let your employer know.

Some employers require you to fill out an accident report after something happens. Make sure you follow this, because you don’t want to get fired or face other consequences from your employer. However, your claim for workers’ compensation is not at risk if you fail to do so. The law requires you to notify your employer but does not require you to fill out an employer’s accident report in order to get benefits. Don’t let your employer convince you otherwise.

There’s no real risk in reporting your injury ASAP, but there’s a lot to lose if you wait too long. The law’s 45-day rule is a good guideline, but sooner is usually better. If you have questions before reporting your injury or concerns about your employer’s reaction, it’s confidential and free to talk to an attorney first.

When the company doctor says there's nothing wrong with you

One of the more frustrating situations we see in workers’ compensation law is when someone has a legitimate injury but is told they’re completely fine. The worker might be hearing this from their boss, or their employer’s insurance company, or even from a doctor affiliated with their employer. Why would they do this? Because injured workers cost them money.

Some employers have a rule that an injured worker has to be seen at a particular doctor’s office or a company clinic. Obviously, that doctor is going to be a bit biased toward the company. They know that it’s in the company’s best interest if you aren’t hurt because then they won’t have to pay workers’ compensation benefits.

You can imagine how frustrating this is to an employee who gets hurt on the job. It’s frustrating for us, too. Our job is to look out for injured workers and their rights, and these types of situations are the exact opposite: employers looking out for only themselves and their bottom line.

The good news is that you don’t have to continue to see the company doctor or go to the company clinic. States have different rules on this, and in Illinois injured employees are allowed to choose their own doctor. Go to a doctor you know and trust, or one that has been recommended by a reliable source.

Your doctor’s opinion on how you were injured, why you were injured, what treatment is best and what you need in order to recover, are central to your workers’ compensation case. Your doctor’s credibility is extremely important. A doctor who is essentially a hired gun of the employer is not going to have the final say, as long as you have a trustworthy doctor in your corner.

Along these same lines, don’t use your lawyer’s hired gun either. Don’t let your attorney direct your medical care or send you to some doctor they send all their clients to. Sure, it might get you a favorable report, but in the long run it will hurt your case. The people who are a part of the local workers’ compensation law community, including the arbitrator who is essentially the judge in your case, will know exactly what’s going on. And the result is that they won’t trust the doctor’s opinion and they might not trust you, either.

Your health should be your first priority. If you know something isn’t right, don’t get discouraged if you get brushed off by the company doctor. Go get a second opinion. And if you are worried about pursuing a claim and what it entails, talk to an experienced lawyer about your concerns. A free consultation is a good place to start, and it’s completely confidential.

Returning to work after injury - what if your job is gone?

Imagine that you have finally reached the point where you can return to your job after a work injury. It seems like good news, but what if there is no job for you when you return? The unfortunate reality is that you can’t turn around and go back to getting workers’ compensation benefits instead. Once you have been released by your doctor to return to work, you no longer qualify for temporary total disability payments.

After an injury, doctors often put restrictions on what the employee can do physically. Maybe they can’t lift anything over 10 pounds, for example. If your employer can’t give you work that allows for your restrictions, then you are entitled to temporary total disability payments. TTD payments are 2/3 of your average weekly wage. In other words, if you can’t perform your required job duties, then you are off work and your employer, or their insurer, gives you 2/3 of your pay while you’re out. 

In most cases, the injured worker’s doctor is eventually able to lift their restrictions because they have healed, or healed enough to go back to work. A recent situation involved a home health aide who was injured on the job. She was unable to work while recovering, due to the restrictions from her doctor. However, when her restrictions were lifted and she was able to return to her job, there simply weren’t any clients available for her to work with. She essentially had no job to return to, and no paycheck either.

Honestly, there’s not much she can do. The employer didn’t appear to do anything unethical or against the law. Although an employer can’t fire an employee because they are injured or because they file a claim for compensation, they don’t have to guarantee that your job will be there for you when you return. This rule often is misunderstood to mean that you can’t be fired while out on workers’ compensation, and that’s not true. The law is there to protect workers from being fired in retaliation for asserting their rights after an injury.

The silver lining is that we have found that your job is actually there more often after a work injury than it would be if you took a leave for a non-work injury.  That’s because the case can have more value if there is no job to return to so often the insurance company will encourage your employer to take you back.

Our promise is to tell it like it is, even if it’s not what you want to hear. And that’s the reality for the injured home health aide. Her only option may be to look for a new job. The law puts this unfortunate timing issue on the employee. It doesn’t seem fair, but that’s how it works.

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When a lawyer doesn't tell you their real practice focus

I didn’t know that the Yellow Pages is still in existence, but it is.  Apparently some attorney in a very rural county in southern Illinois has an ad on there that says he has more than 20 years of successfully handling Illinois workers’ compensation claims.

The problem for one of his clients that ended up calling me is that it’s not clear if that is true.  His website lists many practice areas (criminal, real estate, estate planning, civil litigation), but does not mention any history of handling accidents in the workplace in Illinois.

It’s certainly possible that his website isn’t up to date or that he chose not to mention it there.  But for the caller to my office, it appears that because the case is somewhat disputed, this “successful” lawyer has chosen to bury his head in the sand.

Workers’ compensation law isn’t rocket science.  But neither is most areas of law if you have years of handling those cases.  So if you want to get a divorce, even though I’m a lawyer I wouldn’t know how to handle that, at least not in a way that makes it worth you compensating me for it.  On the other hand, if you are hurt on the job, I can help you as can anyone in my network.

My theory is that a lot of lawyers hear injury and they think that means big bucks.  That’s not true and they underestimate the difficulty in successfully handling a case from beginning to end.  And they certainly aren’t taking these cases because it’s in the best interests of the client.

Insurance companies only hire lawyers that focus on defending these cases every day.  So if your representation isn’t up to par, there is a great chance they will get crushed or at least put you in a position to get less than you deserve.

I wish attorneys would be more straight forward with what they do.  If your call is about something not work comp related, all I can do is give general advice (possibly) and then refer you to someone else.  I usually know people for most situations.  If your call is about workers’ compensation, I can give you lots of advice and if needed, someone that I work with and is a part of my state wide network will put your case on the right track.

Before you do hire an attorney, you should look up their website.  If their practice categories seem to be all over the board or if there main focus seems to be something else, don’t hire them.  They might get you a good result, but they don’t give you the best chance for a good result.

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When should you see a doctor after you are hurt at work?

A recent caller to my office was somewhat freaking out.  She had hurt herself while working on a Saturday, but as of the following Tuesday she hadn’t gone to a doctor or the emergency room.  She was hoping that her foot would start to feel better and like many of the people that we talk to, she wanted to just keep working and not have to deal with it. That is an understandable position and usually the sign of a hard working client.

Now that she realizes her problem is getting worse, she wants to see a doctor.  But a friend of hers told her that if you don’t go to get medical help within 24 hours of your injury, you aren’t allowed to get workers’ compensation benefits.

Allegedly that is the law in some other state, but it’s not the law in Illinois.  There is no time limit as to how quickly you have to see a physician, but I will say that the longer you wait, the harder it is to prove your condition is related to the original accident.

The reason behind this is that if you are on a witness stand some day and tell the Arbitrator that you hurt your back in April, but didn’t see a doctor until October, he/she will look at you with skepticism.  All of the Arbitrators are experienced and know how painful a back injury can be.  So if you say that you were able to go six months without any medical intervention, it will raise suspicions that something happened in between that really caused your trouble.  This doesn’t end your chances at a case, but certainly can hurt them.

I hate going to the doctor and other than bugging a buddy that’s an ER doc for advice, I usually just try to figure things out on my own.  So that makes me somewhat of a hypocrite because my advice to you is to never try and tough out an injury that is bothering you for more than a couple of days.  Perhaps the pain will go away, but it’s also possible your delay in treatment will cause you to get much worse.  If you go to the doctor, worst case scenario is that you waste an hour or so of your life because you get better right away.  Best case scenario is your injury doesn’t get out of hand and any potential case doesn’t end up in litigation because you created a potential defense.  Doesn’t it make more sense to just get checked out?

The other lesson from this phone call is that you should not take legal advice from friends that are not attorneys.  They likely have your best interests at heart, but don’t always know what they are talking about.  In this situation, the friend didn’t know that the laws are different from one state to another.  Many other times people confuse what the law actually is because they are going off something that they heard or improperly comparing their experience to yours.  So ask a lawyer.  We’ll always talk to you for free and so will many other firms.

You don't have to be doing your job duties to get work comp benefits

There are lots of insurance company tricks out there as well as bad employers who will lie to you.
 
An example of this came up recently with a gentleman that I consulted with on an accident.  He didn’t need the help of me or any lawyer in my network because fortunately his injuries were very minor.  His normal job involves working on an assembly line.  He took a break and went to the locker room to relax for ten minutes.  As he got up, he stumbled on some loose carpet and reached out to catch his fall.  In the process he cut his hand.
 
The good news is that it could have been much worse. As he was telling the story, I assumed that he was going to tell me that he tore his rotator cuff or hurt his back because we see that a lot when it comes to these types of accidents.  So fortunately there wasn’t much of an injury.  The bad news is that when he asked to go to the hospital they said no because he wasn’t hurt while working, as if that should matter when it comes to his health.
 
But the reality is that even though his job duties don’t involve being in the locker room, it’s reasonably expected that he will go in there so any accident that happens there is covered under workers’ compensation laws in Illinois.
 
I’ve seen similar nonsense with insurance companies telling workers that since they weren’t doing their normal job, they aren’t covered.  That’s pure baloney.  If your normal job is to sit behind a desk and the boss tells you to go make a delivery, well then you better do what the boss says or you’ll get fired.  So if you get hurt while doing what the boss says to do, you receive Illinois workers’ compensation benefits.
 
The exception to this is if you are engaged in horseplay.  For example, if your company has a golf cart at the warehouse and you go for a joy ride in it and crash, that wouldn’t be a work comp case that we could win for you.  But if you are operating it normally and it’s for the benefit of your employer then any injury you get would be covered.
 
In this case, the break the worker took is for his benefit, but also for that of the employer as it allows him to work better when he returns to the line.  He did end up going to the ER and just wants his bill paid.  He hasn’t actually talked to the insurance company yet, so I’m optimistic that will happen.
 
But don’t let anyone tell you that you have no case or can’t make a case, especially when that result benefits them, not you.  Talk to a lawyer.  It’s free and will help you make an educated decision or in this case, figure out what you can do on your own to get the benefits you are entitled to.

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