If You Are Hurt At Work Does Your Employer Have To Take You Back?

Nobody wants to lose their job. Nobody wants to get hurt on the job either.  Almost every person I talk to, even if they don’t love their job, wants to work and live their life.

A big concern of some of my callers who get hurt while working in Illinois is if they take time off work per the doctors orders, will there job be waiting for them when they get back?

As Covid has shown, nothing is certain.  That said, under the law, it is illegal to let someone go if they get while working in Illinois.  There have been cases where wrongly fired workers got in the seven figures for being illegally terminated.  That’s not to say it doesn’t happen.

The reason most people don’t lose their job, aside from the potential illegal nature of it, is TTD benefits.  TTD or temporary total disability is compensation you receive while you are injured and off work with restrictions.  In many cases, you will be completely off work and then released back to work with some restrictions such as no lifting over 20 pounds.

Under Illinois law, if an employer can’t or won’t accommodate your restrictions, you continue to get TTD benefits until you have a full duty release with no restrictions.  That can cost the employer and the insurance company thousands of dollars so they are motivated to get you back to work.  In fact I’d argue that in most cases your job becomes more secure once you file a work comp case because they get nervous that your attorney will assert your rights on your behalf.

If they don’t bring you back, your settlement value also greatly increases which is more motivation for them to take you back when they can.  Cases that would be worth $50,000.00 could suddenly be worth $300,000.00.  That’s a huge incentive for them to find a job for you.

Every Illinois case is of course different, but generally speaking there are a lot of protections for injured workers.  The safest thing you can do, aside from focusing on your health, is to document anything said to you. If your boss says, “If you file for work comp you are never coming back here” then write down what they said, where you were, who else heard it, when it was, etc.  I’d likely advise my clients to confirm what they said to them in an email to see if they are dumb enough to email back and confirm it.

Again though, the goal isn’t to sue.  The goal is to get healthy and get back to work.  We can support that and help make it happen.  And the good news is that generally speaking your employer does have to take you back and most often they do.

Twisting Injuries On The Job

I read once that if something drives you crazy, you should scream in to a pillow.  I don’t do that, but if I did it would be because of the calls I get and cases I read about where I can’t believe the problems an insurance company is causing an injured worker.

Work comp insurance companies in Illinois have a right to fight cases and they should have that right.  I don’t want some liar or faker to get benefits because when they do it hurts the workers with real injuries.  They can fight good people over real disputes, but the ones that make me scream are the ones that shouldn’t be fought but are.

This annoyance came to mind when I read about a worker who hurt his knee while working on an assembly line.  He was walking on a rubber mat while doing his normal job duties which required him to walk up and down the line, pull parts and put garage door panels together.  While walking he turned to check instructions on a clipboard.  As he turned his body his knee twisted and he tore his meniscus.  The end result was a surgery.

To me this was an injury that was clearly a risk of his job duties. When that happens the only thing the insurance company should be doing is supporting you in getting the medical treatment that you really need.  Delaying attempts by them can make a minor injury more serious and a serious injury life altering.

Yet what happens is that there are doctors out there that will say something like “Twisting and hurting your knee shows it was already hurt” even when there is no history of knee problems.  Or they will pretend like there was no risk in walking up and down all day while ignoring how the employer benefits from the workers doing these tasks.

Twisting injuries are almost always good cases.  It’s almost always a risk of the job even if it seems like a basic act.  Workers should not get punished when they are hurt in these manners.

The good news is that this worker of course won his trial and his appeal.  The bad news is that he even had to go through that nonsense in the first place.  Insurance companies should pay the good cases and fight the bad cases.  Instead they try to save money by contesting cases that are clearly compensable. It’s enough to make a guy want to scream in to a pillow.

Incentive Pay And Illinois Work Comp Law

When it comes to calculating what a case is worth, the biggest factor is your injury, treatment and recovery. But it’s not the only factor. The other huge issue is what is your average weekly wage. (“AWW”).  That dollar amount is used to calculate your benefit rates.  The more you earn, the higher your weekly payout and settlement will be.  Illinois work comp law has us look at the 52 weeks prior to the accident to determine what the right amount is.

If you are a salaried employee and make $52,000.00 a year, then your average weekly wage is $1,000.00.  If you are an hourly employee, we look at your hourly wage and actual weeks worked to determine what the proper AWW is.

Most employees AWW calculations are straight forward.  Some aren’t though. If you work overtime, for example, that may or may not be included in your calculation.  The same is true if you have a second job.

For other workers there is pay that isn’t guaranteed like incentive pay.  A new Illinois Circuit Court ruling has clarified how that pay should be used in determining what you made and it’s a huge win for workers.

A union worker got injured on the job.  His testimony was that his compensation was based on the union bargaining agreement.  Part of this pay included “rank payout” which was a system that created an incentive to do a good job and rewarded those who did the best.

The insurance company argued that this additional pay should not be included.  At first they won and the Illinois Workers’ Compensation Commission didn’t include it in in the calculation. On appeal though the Circuit Court found that since the incentive pay was a contractual obligation so it was included in his calculation and brought his yearly compensation to over $90,000.00 and his AWW to over $1,743.00.

Given how serious this injury was, the work of his lawyer in getting this right literally put many more thousands of dollars in the pocket of the injured worker.

Bottom line is that you should have EVERY dollar you make looked at in determining what you really earned.  Sometimes stuff like holiday pay doesn’t get included when it should.  Other times you want something included and it’s not.  Either way, you should look in to it all.

Bonus tip, just because the insurance company wrongly paid you off of one wage doesn’t mean you can’t retroactively get reimbursed once the right wages are calculated.  We’ve been involved in cases where a worker was off the job for more than a year and then when we discovered the true wages they received a lump sum of over ten thousand dollars.  Getting the right wages is huge.

Putting On Your Seat Belt Can Be A Work Injury

We are Chicago work comp attorneys who will talk to you for free about any Illinois work comp case. If we can’t help, we likely no somebody who can.  Call us any time at 312-346-5578 for a free consultation or fill out our contact form and we’ll call you.

A common misconception is that if you are at your job and get injured, you have a case.  You might, but still have to show that something about your job duties contributed to you getting injured or that your job put you at an increased risk of injury.  So if you slip on a wet floor in the bathroom, that’s likely a case. If you are just walking and your knee gives out for no reason, you might not have a case.

Some injuries don’t seem like they’d be a case, but can be. For example, everyone who drives a car has to use a seat belt.  That’s not a risk associated with just your job.  If you hurt your arm putting on your seat belt at work, a bad lawyer would tell you that you have no case. A good one would explore to see if your job increased your risk of injury.

This is exactly what happened in a recent claim involving a bus driver. She was getting ready for her route when she reached up with her right arm to pull down her seat belt.  In doing so she felt a pop which turned out to be a torn rotator cuff.

She won her case at trial because as a bus driver, her seat belt was positioned at a greater height than that of a typical car seat belt.  There was also a unique design in that it was a farther distance away which caused the driver to have to reach more.  Both of these things put her at a greater risk of injury.

Beyond that, the employer of course benefits from her buckling up and it’s expected she’d do so. It’s part of her job duties and she was instructed to do it.

So while a basic description of how she got hurt doesn’t sound like much, when you dig further you see that this is clearly a strong case. The Illinois Workers’ Compensation Commission agreed and found in her favor even after the company appealed the Arbitrator’s initial ruling that also went for her.

The bottom line is that any attorney who knows what they are talking about would have taken the time to properly interview this worker and discover that it was really a great case.  Of course it also takes a lawyer who knows how to win trials and is willing to do the work to make that happen.  Fortunately for this driver that it exactly what happened.

How A Judge Decides If You Need Surgery Or Not

In a normal world, your treating doctor stating that you need treatment would be enough to get it approved as long as you were injured at work. That’s not how Illinois workers’ compensation law works unfortunately.  In a lot of cases, your doctor says you need surgery and the insurance company sends you to their own doctor.  That hired gun says you don’t need surgery and now all of the sudden your work comp benefits are denied.

The solution to this problem is to go to trial.  The question is, how do you win a trial to get medical benefits approved so you can get the treatment you need and not have to pay for it?

While every case depends on the facts, the #1 thing an Arbitrator will look for is, is the surgery your doctor wants to do reasonable.  By that I mean is it a common surgery that is medically accepted? Or is it an experimental procedure that isn’t yet widely used.  The more common it is, the more likely it is that it will be awarded.

The second thing an Arbitrator looks for is the likelihood for success if you have that surgery.  This is where your attorney’s effort and knowledge comes in to play.  They will need to take the deposition of your treating doctor and have them testify as to how likely it is that the surgery will succeed. The higher the percentage, the better chance you have to win. On the flip side, even if the insurance company doctor doesn’t think you need a surgery, it’s helpful to get them to admit that it’s usually a successful procedure.

The surgery doesn’t have to make you 100% for it to be considered successful. Instead it has to make you better. If your pain before surgery is 9/10 and ends up as 3/10 when you done healing from surgery, that’s considered a success in most cases.

The third factor that an Arbitrator looks at are the risks of the surgery.  If there is a decent chance it could make your situation worse it might not get approved. If it might not work because you are smoking and won’t quit, it might not get approved. If you want a back surgery and there is a risk of paralysis if it goes wrong, you might lose your case.

Like any other trial, winning comes down to the facts, your credibility and the credibility of your doctor versus their doctor.  And of course if you have an attorney with a track record of success in winning these claims, that helps your chances a lot too.

If you have any questions about getting a medical procedure approved after a work injury or anything else, contact us any time for a free consultation. We help everywhere in Illinois.

 

You Can’t Help An Injured Worker Who Doesn’t Want Help

Here’s a rant.

I had a really frustrating call with the relative of an injured worker lately.  Their family member was catastrophically injured on the job and has been left a paraplegic. They spent months in a rehab facility and were eventually discharged to home.  The issue since they’ve been at home is that it’s been almost a month and they haven’t been able to get in house physical therapy.  They do have a nurse, but the family believes the person is very unqualified as they haven’t treated a similar patient in the past.  The insurance adjuster told the wife of the injured worker that they had to use this specific nurse.

There are a ton of red flags in this situation.  The most pressing of course are the lack of physical therapy and trouble with the nurse. It’s a problem that we or any other reputable work comp law firm can solve.  The injured worker, if his doctor ordered physical therapy, should get it.  There is no reasonable dispute that a paraplegic would need that.  A quick call to the adjuster from an attorney should solve that problem.

As for the nurse, the insurance adjuster lied.  They don’t get to pick your medical providers.  You get to do that.  So we’d simply fire that nurse and get a better one in place.

The family hasn’t gotten a lawyer despite the serious injury and the worker getting walked all over.  They told their relative that they didn’t want to make waves or get anyone upset!!!

I will never understand that mentality.  They aren’t suing anyone, they are making a claim for benefits.  That is happening with or without a lawyer.  An attorney just formalizes the process and protects you.  This person and his wife have what is a life altering injury and they are getting abused by an insurance adjuster who doesn’t care about them.

Aside from the problems they know about, they likely don’t realize that the insurance company can be made to modify their home to make it wheel chair accessible.  They can likely get a van or other vehicle to make sure he can travel around as needed.  In fact anything a doctor thinks he needs to aid his recovery and life can likely be available.

I let the relative know what we can do, but don’t expect to hear from anyone.  You can’t help an injured worker who doesn’t want the help.  It’s true in serious injury cases like this and those that are not as problematic.  There is a mentality that almost never can be overcome.  They are getting taken advantage of in a terrible way and are worried about hurting their abuser.

All we could do is make clear that we are here for a free consultation whenever they want and happy to help if they want. But 23+ years of being a lawyer has taught me that you almost never can help an injured worker who doesn’t want the help.  You only can hope that they don’t have regret down the road before it’s too late.

An IME When You Have Two Injuries

Most Illinois work comp cases involve an injury to one body part.  If you are off work for that work injury, an IME doctor would look at whatever body part is injured when they examine you on behalf of the insurance company.

In some claims though you could injure two body parts.  It’s really common to have a back injury along with a problem with your leg or arm.  This happens a lot in falls, car crashes or when you overcompensate for one problem and cause another.  It’s also very common to have back and neck injuries.

In a lot of cases where there are two injuries the reality is that only one of them keeps you from working.  For example, you might have a herniated disc in your back and a strain in your shoulder.  The back is the big problem while the shoulder needs minimal care.

In other cases though you could have two really big injuries. A recent caller to my office had a torn rotator cuff and a herniated disc in his back. He’d been off work for a while when the insurance company sent him for an IME.  The doctor they sent him to is a back specialist and only examined his back.  The report he wrote also only discussed his back and said that he could return to work. As a result his TTD benefits were cut off.

This is an insurance company scam.  My guess is that they asked the doctor to comment about the shoulder and he verbally told them that the rotator cuff was torn and the worker couldn’t do his job which involved a lot of overhead lifting.  It’s a common insurance company tactic to discuss what the doctor will say both before and after the exam takes place.  The other option is that had another doctor do a record review and were told what is obvious, that this worker can’t work right now.

So even though he’s clearly off work for the shoulder problem, they rely on the back IME report that says he can work and cut off his benefits.  It’s a clearly shady action although fortunately a problem we can likely solve right away.  But it creates problems and stress for this worker that shouldn’t happen.

What I don’t suggest you do is talk too much at the IME. If the doctor asks what hurts, tell him/her everything that bothers you.  But don’t confront the doctor when they only exam one body part and not the other.  It’s not your job to do their job for them or to point out their errors.  Doing so could actually hurt your case in the end. Some IME doctors are so arrogant and put off by being talked to that they’ll write things in their report to hurt you out of spite.

This is part of what can be maddening about Illinois work comp.  To you this is your health and your life.  At times to the insurance company it’s just a game.  They are playing a game with your life and livelihood.

Should I Get A Work Comp Lawyer? Everything Seems Fine

Most people don’t want to hire a lawyer. I don’t blame them. I wouldn’t want one if I didn’t need one either.  I feel the same way about going to the doctor.  I’ll go if I really have to, but I really do’t want to.

I bring this up because I get a lot of calls that go something like this:

I was hurt at work and all my friends say I should get a lawyer, but I think everything is going fine. Do I need one?

I’m probably the only attorney who will tell people when they don’t need a lawyer.  I’m of course in this to make money, but I take a long term approach that doing the right/honest thing is always the way to go. If I give someone free advice and get nothing back but good karma then that’s all fine by me.

Your need for a lawyer in an Illinois work comp case increases based on the severity of your injury.  If you have a minor strain or contusion, as long as your bills are being paid, getting an attorney probably won’t change much. On the other hand, when you have to have surgery, treat medically for months, miss a lot of time from work or are worried about a job change, getting a lawyer in your corner is just smart.

I say this because even when it seems like everything is going alright, it might not be.  I talked to a suburban policeman recently who had surgery.  His bills have been paid, but a nurse case manager is going to every doctor’s appointment with him.  They aren’t allowed to do that.  She also is making what seems like friendly “small talk” with him, but in reality is a tricky insurance industry way of seeing if you are violating your medical restrictions.  Believe it or not, “What did you do this weekend?” is a loaded question.

The point is that insurance companies are not your friend.  The whole relationship is business to them.  At every point in your case they are seeking how they can either cut off your benefits or limit them.  Maybe they approve a MRI, but make you get a cheaper one that is not as reliable.  Maybe they approve physical therapy, but only two times a week, not the three your doctor thinks you need.  Perhaps they ask you what you are doing this weekend to assist themselves in conducting surveillance on you.

When you have an attorney, the insurance company can’t talk to you.  That doesn’t mean they won’t try to limit what they pay on a case.  What it does mean is that it will make it a lot harder for them to be successful.  And if something does go wrong, you’ll have an attorney ready to go who knows your case and has a claim filed so it’s easier to get in to court and get results.  In the meantime they deal with the insurance company, unpaid bills or any other headaches that come up.

I hear two arguments from injured workers as to why they are hesitant to get a lawyer: 1. I’m not the suing type. 2. I don’t want to get less money in the end.

Almost nobody is the suing type. But the insurance company is staffed by professionals who as discussed want to screw you over.  Getting a lawyer isn’t a lawsuit when you are hurt at work. We simply file the claim with the Illinois Workers’ Compensation Commission and protect you.  There is no lawsuit.  You aren’t making waves or causing trouble. You are looking out for yourself and leveling the playing field.

As for the cost.  It’s nothing up front to get a work comp attorney and we don’t take anything from the weekly pay you are getting. Our fee is 20% of the settlement we get for you and in almost every situation I’ve seen, workers who don’t get a lawyer get offered less if they get offered anything at all.

That’s my rant/advice for today.  If you have any questions and want to speak with a lawyer for free, you can contact us any time. No pressure and it’s all confidential.

CNA Wins Work Comp Case For Falling On A Sidewalk

Generally speaking, if you fall on a public sidewalk while not doing your job duties, it’s not a workers’ compensation case.  But it’s also not as simple as that and if you do fall, you have to look at why you fell and why you were walking in the area where the accident took place.

For example, if you are carrying a big box of work supplies and fall in part because of that, your employer is benefiting and that would likely be a case.

Or consider a recent court decision involving a CNA at St. Joseph Hospital.

Her job involved taking care of patients on the overnight shift. She clocked out as usual early in the morning and then grabbed a drink and talked to her co-workers who were getting ready to start their work day.  While this talk may have been trivial, it certainly makes sense and benefits the employer that they’d occasionally talk about patients too.

One co-worker warned her that it had been sleeting all night and that it was slick outside. She exited the hospital toward the employee only parking lot and on her way fell on the icy sidewalk.

The insurance company for the hospital tried to argue that she didn’t have a case because the sidewalk was public.  That argument didn’t carry weight.

What the Arbitrator found was that she was taking the path to the employee only parking lot and exited a door that the general public is not allowed to enter.  Those two factors made this not a risk that the general public had to face but instead one that was unique to the workers.

The test we use as lawyers is, is there some restriction on the general public?  In this case the answer was obviously yes.  Employers benefit by having their workers park in employee only lots and if a worker gets injured in that lot or going to or from that lot, it’s likely a work related injury.

These cases show the benefit of having an experienced attorney on your claim.  Another defense the insurance company tried to use was getting testimony on weather data that stated it wasn’t sleeting.  That of course as nothing to do with the truth that the ground was slippery or that she reported right away that she fell on ice.  And nobody testified that the sidewalk wasn’t icy.  Lesser attorneys though would have told this injured worker to settle for a reduced amount instead of taking the case to trial.

When Your Employer Won’t Turn In Your Work Injury

In 23+ years of being an attorney I’ve heard all sorts of crazy things.  The one I hear a lot lately is from people who are hurt on the job, but can’t get benefits because their employer hasn’t turned the accident in to their insurance company.

When that happens you can’t get a claim number which means you will have trouble getting medical care.  And of course it means that you won’t be compensated for your time off work.

Often this occurs by employers who lie and tell their workers to say they didn’t get hurt at work. They promise they will “take care of them” and handle the bills.  This almost never happens, especially when the injury is serious.  And they certainly won’t pay you a settlement.

So how do you handle this problem?

The only way to really force your employer to do the right thing is to file an application for adjustment of claim with the Illinois Workers’ Compensation Commission.  This will get your claim assigned to an Arbitrator with a status date.  If the company doesn’t report it then, they will likely lose their insurance.  I’ve never seen this tactic not work.

The other thing you can do is look up your employer’s insurance company at the Illinois Workers’ Compensation Commission website.  We’ve been involved in a bunch of cases where the attorney who handled the case was the first person to notify the insurance adjuster than an accident happened.  Insurance companies like to be notified, but hate when that happens because they know their client isn’t trustworthy and it prevents them from doing the type of investigation they want to do.

As for any employer who tries to discourage you from reporting a claim to their insurance, ask what you’d do if you were in a car accident. Would you not report that you hit someone and were ticketed because you were worried about your rates going up?  Of course not.  The alternative would be that you get sued.  This is what insurance is for.

The good news is that most employers don’t act this way, even if they think you weren’t hurt at work.  The other good news as explained above is that it’s a really easy problem to solve.  The bad news is that you have to even deal with this nonsense. Delays in medical care can make small injuries in to big ones.

As always, if you have concerns or want to discuss a case, call us for free at any time.

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