AMA Ratings and Illinois Workers’ Compensation Settlements

One of the awful strategies by the people who wish to destroy the Illinois workers’ compensation system are from those who want your settlement to be tied to something called AMA ratings.  Those are medical impairment ratings that have nothing to do with actual disability or how your injury will affect your body and ability to work in the future.

When the Illinois workers’ compensation laws were amended, one of the compromises is that AMA ratings were one of the items an Arbitrator was to consider when determining what a case is worth.  The goal by the people who put this change in to place has been to make it the sole way that case value is determined.  That would be terrible for injured workers as the value of most cases would be nothing.  It’s essentially a play to try to eliminate the work comp system in Illinois.

This is what has happened in Indiana where it’s pretty much impossible to find a lawyer to help an injured worker as a result.  To be honest, lawyers are in this for the money, even the ones like me that genuinely like to help people.  We have staffs to pay and families to support so if your case has no value then we’d have to help everyone for free.  Of course that isn’t going to happen which is what the insurance companies want. If they get their way, they’ll be able to deny you medical treatment for no reason and tell you that if you don’t like it, get a lawyer.  Right now that’s not a problem, but if we end up like Indiana or some other states it would be.  Workers would get screwed.

As it stands now, insurance companies will tell injured workers who don’t have lawyers that their settlement offer will be based on AMA ratings.  To see how that works you can look at a recently decided case for a firefighter with a completely torn biceps muscle that required surgery. A doctor who does a ton of ratings and IME exams for insurance companies (e.g. a hired gun) said that the injured worker had a 0% impairment rating.

Without a lawyer this person would have been told their impairment rating is 0%, but they’ll “generously” give him a couple thousand of dollars.  At trial what happened is the Arbitrator looked at the whole picture (which they are supposed to do) and noted that he had permanent work restrictions and continuing pain and tenderness.

It’s absurd to suggest that there is no impairment here, but that’s what these hired guns do.  The Arbitrator saw right through that and actually applied the law in awarding a 25% loss of use of the arm.  The insurance company appealed and the decision was upheld.

So justice prevailed in this case, but that’s not the goal of an insurance company.  Much like us lawyers, they are in this to make money.  They make money by limiting what they pay to you. The good guys won this round, but you can bet the insurance companies will do whatever they can to avoid making a proper payment in the next case.

If you have any questions about this post or simply want to talk to an Illinois workers’ compensation attorney, please call us at (312) 346-5578 or fill out our contact form online.  We are based in Chicago, but help with cases throughout Illinois via our state wide network of aggressive, experienced and like minded attorneys who fight for their clients.

Telling your story at trial

I’m honest.  To a fault.  I say that because I always tell people the truth even when I know that is not what they want to hear.

Take for example a recent caller to my office.  Nice woman.  Injured her elbow at work.  It’s a compensable case.  The bills have been paid.  She had three months of physical therapy and one cortisone injection.   She’s back to work at her normal job and her elbow feels fine.  She has a good lawyer who secured an offer of $15,000.00 for her.

She’s upset because the offer doesn’t include pain and suffering benefits, punitive damages or compensate her for not being able to lift up her newborn grandson when he was born.  She told me that she “wants to tell her story” and “knows that if a Judge heard it” that she’d get a lot more money.

I’m sympathetic to her.  If I was a grandparent I’d want to hold my grandchild.  Problem is that the Illinois Workers’ Compensation Act doesn’t allow for pain and suffering or punitive damages.  The other problem is that the Arbitrator (no Judges in work comp in IL) has her case and about 1,000 others on his/her docket.  They don’t want to hear her story or anyone else’s.  They want to move cases.  They’ll hear what happened if there is a reasonable dispute between the two parties and make a decision from there.  But in a case like this where there is a good recovery and a very reasonable settlement offer, they feel they’d be wasting there time with a trial.  And they are right.

What I let her know is that if it goes to trial, she’ll probably end up with less from spite out of the Arbitrator who ended up in a trial that didn’t need to happen.  He’ll punish her for using up resources and costing the insurance company money.  That’s not fair, but my job is to tell her how the law really works.  We fight like hell for our clients, but there is no fight to be had here.

Another caller to my office wanted to tell her story too and she has a good reason to go to trial, but a bad reason for wanting to tell her story.  She had a major back fusion and is permanently disabled from working.  The insurance company isn’t making a fair offer and if I had to guess it’s because they think she’ll die at some point due to other health issues.

I estimated that a fair value for the case is $300,000.00 and said she should go to trial because the offer isn’t fair and this way she’ll get to keep her medical rights open for the rest of her life as relates to the back injury.  She felt that if she could just tell her story that she’d end up with a million dollars.

I had to let her know that there was literally a 0% chance of that happening which isn’t what she wanted to hear, but again, I don’t concern myself with that.  It’s the truth.  If she lives to 100 she might see a million dollars in life time benefits or more, but there is no way to get that in a lump sum now.  Her thought was that the stress of the case has made her blood pressure go up and lead to a heart condition.  The truth is that has contributed to her being permanently disabled and is already taken in to consideration.

I do get that it can be therapeutic to have your day in court and the second caller should go to court.  But if you are doing it because you think you are in a unique situation that will lead to the law not being applied and you ending up with a windfall, you are fooling yourself. As a lawyer, it’s our job to take the emotion out of a situation and make objective recommendations.  Even when you wish that we wouldn’t.

“My lawyer has been on vacation for two months!”

Lawyers can (and should) take vacations.  Everyone should.  But when your life becomes a vacation at the expense of your clients then maybe what you really are is retired and not the right attorney for them.

Take a recent caller to my office who has been told by his lawyer’s secretary that he’s on vacation every time he calls and that it’s been going on that way for two months.

I get that winter in Chicago isn’t the greatest even if this winter has been somewhat milder than those in years past.  But if you are going out of town and not taking phone calls, calling adjusters, filing trial motions, etc. then you are not being an attorney to your clients.

There are a ton of lawyers that I know of who spend their winters in warmer climates.  Most of those are really just figure heads at their firms and have partners and associates who do all of the work for them.  Others are a bit shady IMO because they go away and hire, young, inexperienced attorneys to handle their case load.  These young lawyers need training and supervision.  Instead their bosses are taking off the training wheels and saying “good luck,” all at the expense of some unsuspecting clients.

But the lawyer that my caller is talking about seems to be worse as he is kind of winding down his practice and doesn’t appear to have anyone working on his files while he is gone.  It’s disgraceful, plain and simple.

There are a bunch of questions that I recommend you ask an attorney before you hire them.  If they are older, it’s perfectly reasonable to ask if they work year round.  If they don’t have any partners, it’s reasonable to ask who covers their cases when they are not available.

Remember, you are hiring them.  They work for you.  They aren’t your employee, but you have a right to expect a certain level of customer service and performance.  If you aren’t getting that then you should call them out on it and/or find a different firm.  It doesn’t cost anything to switch firms and is possible if you don’t wait too long.

Governor Rauner Wants To Gut Workers’ Comp – A Perfect Response

I couldn’t say this better myself so I won’t.  I didn’t know that 70% of lawsuits in Illinois were businesses suing other businesses.  That’s a big number.

Governor With No Budget Takes Aim at Injured Workers and the Casualties of Corporate Negligence

It’s Past Time for Gov. Rauner to Govern: Cutting Benefits for Workers Injured on the Job and Compensation for People Harmed by Corporate Wrongdoing Won’t Bring Business or Revenue to Illinois

Statement from Illinois Trial Lawyers President Perry Browder
January 27, 2016

A legal system fair to the interests of individuals and businesses not only ensures a level playing field for both parties – it also protects the taxpayer. But if Gov. Bruce Rauner has his way, the burden of caring for injured persons would shift from the companies that caused the harm to the taxpayers.

In his State of the State address today, Gov. Rauner renewed his attack on our courts and his demand that lawmakers roll back the financial safeguards that our state’s workers’ compensation and tort systems afford to the vast majority of Illinoisans.

Across Illinois, seniors, individuals with disabilities and other vulnerable citizens are going without vital services because Gov. Rauner is holding the budget hostage until he succeeds in upending our legal system – among other items in his agenda. Yet his proposals relating to workers’ compensation and tort cases would do nothing to improve the state’s financial standing or fund the state services necessary to support individuals in need of critical assistance.

The governor and his big business and insurance supporters continue their push to undercut the rights of injured workers in order to maximize insurance industry profits. They ignore the fact that the 2011 rewrite of the workers’ compensation system – those changes sought by the business community, and which were largely to the detriment of men and women injured on the job – is producing the desired result: lower costs for insurance companies and employers.

As the Illinois Workers’ Compensation Commission stated in its FY 2014 report, Illinois employers experienced the largest decrease in workers’ comp premiums among all 50 states. And the commission anticipates further savings once the full effects of the 2011 workers’ comp overhaul are felt.

No matter how many benefits are cut, medical reimbursements are lowered, and claims are denied, the state’s businesses won’t see additional savings without our leaders addressing the promises previously broken by the insurance industry. Strictly regulating insurance premiums, not further curtailing injured workers’ rights, is the key to managing employers’ workers’ compensation costs.

The governor also seeks to squelch the civil justice system’s authority to hold wrongdoers accountable in an effort to shield the profits of his big business allies – at the expense of those who suffer due to their malfeasance and the taxpayers who would be left holding the bill.

More than 70 percent of court actions in Illinois are initiated by businesses suing other businesses or individuals for money, but the governor has not proposed limiting the access of corporations, banks and investment companies to the court system. The fact is that very few injured Americans ever file lawsuits. In Illinois, the number of civil cases filed has dropped 33 percent from 2010 to 2014.

Eroding the constitutional rights of citizens to access the courts that their tax dollars fund would send the message that our civil justice system is mainly for the use of corporate actors and the wealthy, rather than something that belongs to everyone, regardless of their means.

Gov. Rauner should abandon his campaign to enlist our legal system into the exclusive service of his phenomenally wealthy supporters, and instead focus on real, meaningful solutions to fix our state’s problems. The state budget cannot be balanced on the backs of those injured due to no fault of their own.

Frozen Shoulder and Illinois Work Injuries

No, not talking about feeling cold in the winter.

Do you have pain and stiffness in your shoulder that has gotten worse over time? Has it gotten to the point where you no longer can physically move your shoulder? Did a slow dull pain begin in your shoulder that has gradually limited the way you can use your shoulder. If so, you may have a condition known as frozen shoulder.

Frozen shoulder happens when the group of tendons around your shoulder joint swells and stiffens. That swelling causes adhesions that don’t allow your shoulder to move properly. The cause of frozen shoulder can’t always be directly identified, but sometimes it occurs after a shoulder injury, surgery, or from overuse of the shoulder.  Occasionally it is also attributed to a side effect of diabetes. There are other risk factors that make up the general group of people who may develop frozen shoulder such as, women over 40 are more likely to suffer from the issues associated with frozen shoulder.

We’ve worked with a lot of injured workers who have this condition and it does seem that the most common way they get it is after trauma from a fall.  An example would be slipping on ice at work and then putting your hand down to brace your fall.  Sometimes the pressure that creates leads to an eventual frozen shoulder.  The other popular one seems to be after failed shoulder surgeries.

The good news is just as you can have frozen shoulder, your shoulder can literally go through a thawing process that will allow you to regain mobility. The treatments for frozen shoulder include everything from pain medication and exercise to cortisone shots and electrical nerve stimulation. In only a small amount of cases, a minimally invasive surgery is performed to remove the scar tissue built up in the shoulder.  Once your shoulder begins to thaw out, it will slowly improve mobility. This process may take several months, perhaps even physical therapy, but there is hope.

Over the years we’ve helped hundreds of people with this condition.  It sucks.  I have a torn rotator cuff myself and while it’s pretty asymptomatic now, when it did act up it was unbearable.  I can’t even imagine how awful a frozen shoulder problem would be as it would clearly impact every activity of daily life.

My best advice, and it’s not really legal advice, is to not ignore this problem and immediately see a doctor.  Yes that can help any potential work comp claim, but more importantly, seeing an orthopedic doctor right away can increase your chances of catching this early enough that it doesn’t become a long term problem.

Bonus tip, don’t listen to any insurance adjuster who tries to tell you that your frozen shoulder isn’t related to your initial work injury.  If you can trace it back to the original accident (e.g. you wouldn’t have had surgery were it not for the work accident) then you should get benefits under the Illinois Workers’ Compensation Act.  This is true even if you had a pre-exisisting condition which was made worse by the job accident.

Any questions about any of this or if you want to talk about a case, contact us at any time.  It’s always free and confidential.

How To Choose The Right Law Firm (Or Not The Wrong One)

It’s easy to choose the right Illinois workers’ compensation law firm in some respects.  You want to find a firm who only handles work comp cases or at least makes that primarily what they do.  In other words, if they do work comp and DUI and divorce, that’s bad, but if they do work comp and social security disability claims that’s alright, or if they are job injuries and some car accidents that can be ok, unless they are handling too many auto cases.  You don’t want them to not have time for you because they are on a two week trial.

There are a million posts like this out there, so I won’t bore you with another one. I will though give you what I think is a big red flag and serves as a warning for when not to hire a lawyer if they do something.

An e-mailer to my office was upset because he had e-signed documents for a firm in Chicago to represent him, but a month had gone by and he hadn’t heard if the case was even filed yet.  That’s unusual because cases are almost always filed right away since there is no cost and it makes the representation official.

What was worrying though was that he told me he had never even spoken with a lawyer.  Instead, he talked to a paralegal who did all of the intake on the case.  He’s never actually spoken to an attorney.

This tells you that this firm will take any case that comes through the door.  Instead of vetting cases to see if they are good claims and talking to potential clients to see if they’d like to work with them, some paralegal just signs up the cases and says something to the effect of, “A lawyer will get back to you.”

So why should this worry you?  So many reasons.  First, if they get a reputation for taking any case that walks through the door, there is a chance that they get known as a firm that takes on crap cases.  So an insurance adjuster is going to look at your case as possibly being b.s. because of the company you keep.  Second, in my experience, these firms tend to go through staff and lawyers like hot cakes.  So what happens is that one lawyer might be handling your case this month and then next month it could be someone else.  It’s a recipe for disaster.

Because many of these cases don’t have great value and because the firm owners want to keep as much as they can for themselves, it’s common for new attorneys (e.g. the ones that just got licensed to practice law in late November) to be assigned to your case.  So they have pretty much no idea what they are doing and are gaining experience on the fly by “handling” your case.  Your life is in the hands of someone who potentially knows less about Illinois work comp law than you do.

Hiring an attorney isn’t like a marriage because you don’t have to love your lawyer for them to be the right fit for you.  But it’s not a blind date either where you show up and hope things are going to work out.  You absolutely should vet any attorney before you hire them.  It doesn’t have to be a long discussion, but at the very least you should know who you’ll be working with and ask about their experience.

And if it’s a law clerk or paralegal or secretary that is going to be your main or only point of contact, then keep looking.

Ugh, not the best Chicago work comp lawyer

If you read my blog, you know that I get really frustrated by attorneys who do not look out for their clients.

The latest nominee for the worst workers’ compensation law firm in Chicago comes from a recent caller to my office.

She hurt her back while working a couple of years ago and hired an attorney.  That lawyer directed her to treat medically with a buddy of his.  I can only assume they have a tit for tat type relationship where they refer each other patients/clients.

Her back injury was serious enough that she had to see an orthopedic doctor and have surgery. Her lawyer also told her to keep on seeing his buddy.

She’s better now and the insurance company and the attorney agree that the case is worth $75,000.00.  Problem is that the buddy doctor ran up a huge bill (over $30,000.00) that the insurance company doesn’t want to pay.  They are right to not pay it because the treatment wasn’t reasonable or necessary.  The real doctor (the orthopedic) also ordered physical therapy which the insurance company did pay for.

Now this lawyer is not looking out for his client, but instead his buddy.  He’s telling her that the buddy will get paid out of the settlement.  That’s complete and utter nonsense.

This attorney is a scumbag and so is this doctor.  His “treatment” appears to be a lot of massage therapy and ice packs.  It’s one of those doctor owned facilities that has tons of people in them and while they are technically supervised by a doctor, low paid staff provides all of this “therapy.”  They are used to not getting paid most of their bill, but it’s still a windfall for them.  It would be hitting the lottery if this attorney can convince his client to accept a settlement where most of the money goes to the doctor.

It’s OK for an attorney to suggest a medical provider for you if you don’t have one.  It’s not alright for them to insist you see a certain doctor and the treatment should have stopped once she began seeing the orthopedic surgeon.

I don’t blame the injured worker although I do think she should have questioned this whole arrangement, especially when she was getting the phony treatment along with the real physical therapy.

An attorney should look out for you.  While everyone in our state wide network does do that, not all lawyers do. Because of that, you have to look out for you as well.  And if your lawyer insists that you treat with a certain medical office, get a new attorney as fast as you can.  Those types of lawyers only lead to disaster.

IL Work Comp – Injuries on a probationary period

A caller to my office was very upset.  He had been injured while moving materials at work.  He told me that he couldn’t get medical treatment because he was a “probationary employee” and wasn’t going to received medical coverage until he had been on the job for six months.  His boss also told him that he wasn’t eligible for workers’ compensation benefits while on probation.

First things first, unless you have a contract that guarantees your employment (usually a union worker), you are always a probationary employee.  By that I mean you can be terminated any time for any reason.  That’s what the term “at will” employment means.

Because a probation term is just a made up phrase by some employers to try and make you feel you have to justify your existence or to allow them to deny you benefits like health insurance, people do also make the mistake of thinking that there is a waiting period before getting workers’ compensation benefits.

There isn’t.

You are eligible for workers’ compensation benefits the moment you are hired.  It’s rare, but we’ve helped injured workers who got in to an accident on their first day on the job.  They have the same rights as a 40 year employee would.  In other words, it doesn’t matter that he doesn’t have health insurance.  Since he was injured while working, the workers’ compensation insurance has to pay for 100% of his medical care.

Another caller a while back told me they heard this immediate coverage only applied to workers in Chicago.  Not sure where they heard that, but that’s not true either.  Whether you are in a small town in southern or central Illinois or Rockford or anywhere else, you have the same rights under the Illinois Workers’ Compensation Act.

Big picture, you can see that there are a lot of myths out there about the Illinois work comp system and most of them serve to only hurt employees.  So bottom line is that you can’t go off of rumors, especially if the legal advice you are getting isn’t from a lawyer or if it’s the insurance adjuster (who has a competing interest with you) tells you something that doesn’t seem right.

It’s always free to call us (312-346-5578) or fill out our contact form to get help with your case or simply just ask a question.  We don’t promise that you’ll like what we have to say, but we’ll always tell it to you straight and look out for your best interests.

When You Have A Full Duty Release But Still Are In Pain

One of the most common Illinois workers’ compensation calls I get is when a worker gets injured, seeks medical care, treats with the doctor for a while and then gets discharged to return to work on a full duty basis.  Many of those callers tell me that they don’t believe that they can do the job or that if they go back to work they will re-injure themselves.  A lot of them work in construction or other heavy labor jobs so their concerns are legitimate.

The problem for them is that you can’t take yourself off work and expect to get paid work comp benefits or even keep your job if you don’t show up to work.  So the question that really matters is, what are your supposed to do in this situation?

First thing I ask is who is your doctor.  I’m stunned by the number of people who get sent to a company doctor and only treat with that doctor.  You have a choice to see a physician of your own choosing at their expense and you should definitely do this.  The “company doctor” places have an incentive to say that you are fine.  They care about the employer who is paying the bill so in my experience, in most situations they’ll say you are fine.  They make money by not treating you because that keeps more patients coming through the door.

If your doctor says you can’t work and theirs says you can, that’s why you have a lawyer.  In most situations a Judge will find a regular treating physician to be more credible than one hand picked by the company.

If your doctor says you can return to work and you aren’t comfortable doing so, my advice is usually to tell you to try and see what happens.  Just be careful.  In other words, don’t tough it out for three months if you notice in the first week that you have shooting pain from your back going down your leg.  Give it a credible, honest effort and if problems develop you can then go back to the doctor (preferably yours) and tell them what happened when you tried to return to work.

Beware that it’s possible that you will be under surveillance when you return to work.  I get that it can be frustrating to have to even go through this, but it’s your job to listen to your doctors.  Give it a good faith effort and know that if things don’t work out, there are protections for you.

The bottom line though is that you aren’t allowed to make medical decisions for yourself. That sounds ludicrous as it’s your body, your injury and your life we are talking about.  If you want benefits though, while nobody can make you have a surgery or other invasive medical procedure, you can’t choose to stay at home and get paid if no doctor thinks that is medically necessary.

As I said, this is one of the common calls we get.  If you have concern about your situation whether it’s this or any other Illinois work comp issue, call us any time for a free consultation at (312) 346-5578 or fill out our form online.  We are based in Chicago, but help with work injuries everywhere in Illinois via our state wide group of like minded lawyers.

Don’t be your own worst enemy

We blog a lot about lazy lawyers who don’t fight for their clients and end up hurting the case or in some instances, destroying it.

But it’s not just lawyers you need to look out for.  You need to look out for you.

There is a lot an injured worker can do to hurt their case. Number one on that list is to lie.  If you lie to your doctor or embellish your injuries, you are setting yourself up to lose the case.

Two cases which just came out show other dangers of workers doing things wrong and causing harm to their own case.

In the first claim, a worker hurt on the job asked permission to leave and go to the hospital, but didn’t actually report a work related injury.  He had just returned to work from another injury so the employer assumed that’s why he was going to the hospital.  It turns out that he had injured his shoulder in which what was a new accident. Under Illinois law, you have to report within 45 days of an injury that it happened at work and if you don’t you can lose your right to bring a case and receive benefits.

That’s what happened in this claim.  My guess is that he was worried about rocking the boat and didn’t want to say anything.  This case ended up all the way to the appellate court of Illinois and he lost. And from what I can read he would have won had he only said that his arm was hurting him while working.  It was the truth and the truth, like always, was the way to go.

In a second claim, an injured worker with a terrible knee and leg injury had a light duty restriction which his employer could not accommodate.  Under Illinois law, the insurance company has to continue to pay him benefits and offer him vocational rehabilitation which would assist him in finding a job within his restrictions.  Long story short is that he didn’t cooperate with the voc rehab efforts and had his benefits terminated.  To make matters worse he quit his job even though he wasn’t working.

Sometimes the work comp process sucks.  That’s just a fact. But if you don’t cooperate, whether it’s blowing off doctor appointments or not cooperating in a job search or not showing up for an IME, you can risk losing your benefits.  Sometimes you have to suck it up and do what’s needed. Most people I tell that to don’t want to hear that, but only crappy attorneys tell you what you want to hear.  We always give it to you straight.  I wouldn’t want to go to an IME exam either, especially if I knew that it was going to be a joke, but you not showing up will cause you to lose your day in court.

This guy made it worse by resigning.  You never want to resign a job while you are under active care and don’t have a job somewhere else to return to. It’s quite possible that he cost himself more than $200,000.00 because he can no longer make a wage differential claim if his new job ends up paying much less than his old one.

Most of the mistakes that people make in these cases are done out of emotion.  It’s honestly one of the biggest reasons to have an attorney because a good lawyer will take emotion out of the case and make offer objective guidance based on experience and a logical analysis of the case facts.

If you would like help finding the right lawyer for your workers’ compensation case, or if you just have a question, call us at (312) 346-5578 or fill out our form online. We help throughout the state of Illinois.

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