Insurance Bad Faith And Illinois Workers’ Compensation Law

By Mike Helfand on Posted in Tips if Injured

A lot of people have heard of the term “bad faith” when it comes to insurance claims. Most people do not know what it means. It applies when an insurance company acts dishonestly or fraudulently in how they handle a case.

A caller to our office actually had a great understanding of how bad faith law works as she used to be an insurance adjuster. She had been injured on the job in Chicago and can not go back to the work she was doing (not insurance anymore). Her doctor has given her permanent restrictions that her employer can not accommodate. She has had neck and shoulder surgeries. The insurance company has cut off her medical care and payments. She called me wanting to sue them for bad faith. Surprisingly, she did not yet have a lawyer even though her injuries were severe and three years old.

Bad Faith And Illinois Workers’ Compensation Law

Although bad faith is an insurance term, it does not apply to Illinois workers’ compensation cases. That is because work comp claims are not lawsuits, but instead administrative claims for benefits.

I told this to my caller and she said, “So does this mean the insurance company can do whatever they want and get away with it even if it is fraud?!?!” She was not happy with my answer, but fortunately gave me a chance to explain.

There is a process for going against the insurance company when they act inappropriately. It is not called a bad faith lawsuit, but you should not worry about terms. Worry about rights and results.

Under Illinois work comp law, we can file a petition for penalties (which go in your pocket) and fees (which cover our attorney fees so that is also more money in your pocket). The penalties can be severe, up to 50% of the amount they owe you, plus they have to actually pay what they owe. They can also have a $30 a day penalty up to $10,000 for unreasonable lateness with TTD benefits.

To get this, we have to show that their behavior was “unreasonable or vexatious” or there was an intentional underpayment. In plain English, this means that they did not pay benefits and did not have a good reason for their failure to pay. There is no real controversy and any denial is frivolous.

How To Get Penalties And Fees

To get these benefits, we file a motion for penalties and fees at the Illinois workers’ compensation commission. The employer (through their insurance company) then has 14 days to respond in writing to explain their reasons for the denial.

In other words, this can put pressure on them to do the right thing because they have a lot of risk and can not just blow you off anymore.

So while this is not a “bad faith” lawsuit, it is a way to hold them accountable for acting in bad faith. And that is really all that matters. You getting your benefits and them not getting away with a bunch of bs.

If you have a scenario you want to discuss, please reach out for a free consultation any time.

When Is The Repetitive Trauma Accident Date?

By Mike Helfand on Posted in Tips if Injured

Under Illinois workers’ compensation law, an injured worker has to notify their employer within 45 days of when they got hurt that they had an accident. The clock starts when you “knew or should have known” that an accident occurred.

When your foot gets run over by a forklift or you slip and fall on a wet floor, it is pretty easy to know when an accident occurred. And while you have up to 45 days to report it, you should do so ASAP as well as get medical care right away.

Not all work injuries happen at a specific moment in time. Some are from doing the same job activities over and over to the point that your body breaks down. This is known as a repetitive trauma claim. Common examples of this include getting carpal tunnel from typing all day, a back injury from lifting all of the time or shoulder injuries from too much overhead work. We also see this a lot when an employee suddenly gets a heavier workload.

So if it is a repetitive trauma injury, when is the accident date?

There are three different way to show an accident date from a repetitive activity. What applies to you will depend on your case facts. It is very important to understand all of this because insurance companies love to try to win these claims on a technicality that you did not report the accident in time.

The first one can not be used against you generally. There have been many cases where the date you told your employer that you were injured or hurting is the accident date. That makes sense in that you know there is a problem and if you mention work, you are aware that it is due to your job activities.

The second and most common date of accident is the date that you get a diagnosis. In other words, you go to the doctor, tell them about your pain and they tell you what is wrong with you. They might not state that the problem is work related, but it can often be inferred from their notes. This is where “should have known” comes into the equation.

The final way is the date you first missed work due to the condition. This is typically the doctor taking you off work, but if you call in and say something like, “My back is really sore from all of that extra work we did the last few days” then it is clear you know your problem is work related.

It would not surprise me if you read all of this and felt confused. It definitely can be. This is why we strongly recommend that you get medical care when you are in pain and alert your employer about the problem. There is nothing wrong with vaguely saying, “I’m seeing my doctor, I have had a lot of pain at the end of the work day lately.” That is essentially letting them know you have a work related accident.

When your lawyer files the case, we will choose an accident date based on one of these factors and do whatever we can to make sure you do not lose because you did not provide notice in time. The good news is that Arbitrators at the Illinois Workers’ Compensation Commission are not overly strict on this issue. But you should still be careful and always report as soon as you can.

Hopefully we did not confuse you too badly. If you would like a confidential free case review, please contact us any time at 312-346-5578 for help anywhere in Illinois.

Illinois Work Comp Insurance Says They Do Not Have To Follow The Law

By Mike Helfand on Posted in Benefits

This is a post that seems like it would be better written on April first because it seems like it must be a joke. But according to a caller to our office, one big insurance company is claiming that they do not have to honor Illinois workers’ compensation law.

The gist of the case is that a woman was robbed at knife point which led to a mental breakdown where she is scared to return to work. That is a reasonable response to an awful situation. She saw a psychologist who has taken her off of work and recommended treatment for post traumatic stress disorder.

She filed a claim and her employer put her in touch with their insurance company. They denied the claim which in of itself is not that unusual as it happens all of the time. By that, I mean work comp insurance companies wrongly deny cases all of the time in hopes that you will just go away.

What was crazy about this one though is that they said they “do not honor cases claiming a mental-mental injury.”

What Is a Mental-Mental Injury?

Most Illinois work injuries involve something physical happening. You lift a box and feel pain in your back. You type all day and get carpal tunnel. You slip on a wet floor and tear your ACL. You get the point.

Some cases, like this one, do not involve a physical injury. They do have a “mental” situation causing the injury meaning typically you see something or hear something that is stressful. And that does not result in a physical injury, but instead a mental one like PTSD. As a result, in Illinois, these are called mental-mental injuries.

To win a mental-mental case, you have to show a couple of things:

  1. The mental stress was one time, sudden and shocking. An example would be seeing a co-worker get killed or being robbed at gun point. These are not normal things and are certainly shocking. The general stress of a hard job or bad boss is not usually enough.
  2. An actual injury that you can prove. This is done by getting medical treatment. You can not just say you are stressed or have anxiety. You have to see a doctor, typically a psychologist or psychiatrist, to prove an actual injury.

The good news is that if your need for treatment is work related from a one time, sudden and shocking event, 100% of your medical care will be paid for by your employer’s workers’ compensation insurance. In other words, do not let the cost of treatment deter you from getting the help that you need.

And if you are taken off work by your doctor, you will receive compensation for your time off of work. That will last as long as it takes you to get better.

Back to the original point of this blog post. An insurance company can not pick and choose which laws to follow. They make bs denials of claims all of the time, but this was probably the most ridiculous way of doing it that I have ever seen in my 29 years of being an attorney. The good news is that pushing back on this is very easy and the problem is very solvable.

If you would like a free, confidential case review, please contact us any time at 312-346-5578. We cover all of Illinois.

An Illinois Work Comp Nurse Case Manager First

By Mike Helfand on Posted in Tips if Injured

I have been helping injured workers since 1997. I have seen a lot of crazy scenarios come up, but can still be surprised every now and then. I had this happen recently when it came to the behavior of a nurse case manager and their involvement in the medical care of an injured worker.

What made this case so unusual is the injured worker reached out not because the nurse case manager was interfering, but because they did not show up to the doctor’s appointment like they said they would. And then they wrote a report that the injured worker got. In the report it said that they DID attend the doctor’s appointment. The injured worker contacted us because they were upset that the nurse case manager lied.

Now I have received hundreds of calls over the years (if not thousands) of people upset with nurse case managers. For those who do not know, that is a worker assigned by the insurance company to monitor your medical care. They are allowed to ask for medical records and bills related to your work injury. There are lot of things that they should not do, but often do, including:

  • Try to schedule your appointments for you. They often do this based on their schedule, not what is best for you.
  • Tell you what medical care you can and can not have. This is not in any way up to them.
  • Go into the doctor’s appointment with you.
  • Talk to your doctor without your presence or permission.

They do these things at the request of the insurance company to try and interfere with your care. Other than getting copies of your medical records and bills, none of these things should happen. If they do, it can result in your work comp benefits being terminated or delayed.

Usually the calls we get are from injured workers upset with the interference. This recent caller was upset because the nurse case manager was not involved enough and certainly not as much as she said she was. I let them know that he likely dodged a bullet and that it is not a problem at all. I do have worries that she would end up lying in her reports in a way that could hurt him, but that does not seem to have happened yet. The good news is that we got involved before any major problems occurred.

And so while this was a first for me, the end result is the same. Beware the nurse case manager and their role in your case. They have a job to do and that job is not to look out for you or your best interests.

Illinois Work Injury When You Were Planning To Retire

By Mike Helfand on Posted in Benefits

Just about everyone wants to retire at some point. When you read a story about someone working in their 70’s or 80’s, it is not a good thing unless they are working by choice and not by need.

A lot of jobs come with pensions or other retirement benefits. So teachers, many union workers, state employees, etc. will have a set date they can retire and receive continuing compensation. You don’t have to retire at that time, but can and most do. As a result, it is common for many workers to schedule their retirement, often many months in advance.

But what happens when you have a retirement planned and then you sustain a work related injury?

First off, with respect to whether or not you will accrue enough time to still retire if you are off work due to an injury, that is a company specific question.

We can answer questions about your work comp benefits. Here are some important things to know.

  • Whether you retire or not, you can still have all of your medical bills paid for as relates to the work injury. So if you are hurt in October and planning to retire December 31, you can continue to get medical care paid for by workers’ compensation after your retirement date.
  • If you are completely authorized off any work by a doctor, you will continue to get TTD benefits, even after your retirement date. This means your doctor says no work at all.
  • If you have the ability to work but with restrictions, even if significant ones, getting TTD after the retirement date will be a challenge. Your employer can say that had you not retired, they would have work for you. And they will say this even if it is not true.
  • You can still get a settlement if you retire.
  • The settlement could be reduced by tens or hundreds of thousands of dollars if you have a major injury. That is because you would not be able to likely make a wage differential claim because once again your employer can state that they would have made some work for you. So a case that could have been worth $400,000 could suddenly be worth $75,000.

So if you do have a major injury and were planning on retiring, some thought needs to be put into your next steps. I would not do this without consulting an attorney first (you can call us for free at 312-346-5578) but it might be wise to try and rescind your retirement paperwork..

That does not mean that you will not retire soon. It just means that you should hold off doing so until your work comp case is resolved or we have an indication that you will make a complete and full recovery with no need for work restrictions.

In my experience, the farther out your retirement is, the easier it is to get the company to agree to the reversal. That said, it is often at their discretion unless your union can dictate how this can happen.

The bottom line is that a retirement does not take away your work comp rights, but it could limit them if it is not reversed. But doing so can have huge financial advantages for you when it comes to what your work comp case can ultimately be worth. So exploring it is a must if you have anything beyond a superficial injury. If you’d like a free case review so you can make an educated decision, please reach out any time.

If You Fall At Work Is It Workers Comp?

By Mike Helfand on Posted in Do I Have a Case?

One misunderstood aspect of Illinois workers’ compensation law is a belief that any injury or accident that happens at work is considered a workers’ compensation claim. Most are, but not all. For example, if you are sitting at your desk and have a stroke, it is not likely you would have a case. To win an Illinois work comp claim, you have to show your job contributed to the injury. Being at work is not enough.

The same is true with some falls at work. Most falls on the job are work related accidents. But not all of them.

To have a successful work comp claim for a fall on the job, the first thing you have to determine is why you fell. Here is an incomplete list of reasons you could fall that would likely mean you have a case:

  • wet floor
  • slippery floor
  • you are carrying work items and lost your balance
  • you are running to a meeting
  • carpet was loose
  • you fell over an object in the way
  • you fell in a hole
  • the ground was uneven
  • someone bumped into you
  • something bumped into you
  • you were working in an icy area

Those are 11 of the most common reasons people fall on the job. If you fell for one of those reasons and were hurt, it would be shocking if you did not have a good workers’ compensation claim. Unless you were drunk or engaging in horse play, if you were at work it should be a case.

Now here is a list of the most common reasons a fall on the job is not covered under the Illinois Workers’ Compensation Act

  • you do not know why you fell
  • you were off company property

Those two reasons are probably why 99% of cases that are not compensable are truly not a case.

The first one can be frustrating, but sometimes it can be overcome. If you are walking down the hallway at work and the next thing you know you fall to the ground, it is not unreasonable that you wouldn’t know why you fell, especially if you are in terrible pain. Often the true answer is “I slipped on something” but you did not look around to see what.

If you give a recorded statement to the insurance company and state that you do not know why you fell, that will likely end your case. It is one reason that we advise you never to do that. To win a case, you have to be able to explain why you fell.

The second reason is part of a fact analysis. It is why talking to an experienced Illinois work injury lawyer is important. If you work at a grocery store and park where the general public does, if while walking from your car you slip on ice in the parking lot, that would likely not be a case. That is because under Illinois law your employment did not increase your risk of injury as compared to the general public. The possible exception would be if your employer owned the parking lot.

On the other hand, if you are directed to park in a certain area for employees only, that increases your risk of injury. So a fall in that area would likely be a case.

The biggest warning I can give you is that insurance companies deny these cases wrongly more often than any other type of claim. Do not assume that if they turn down your claim that they are correct. Always seek a legal opinion.

If you would like a free case review, please call us any time at 312-346-5578. We have a state wide network of great Illinois work injury attorneys and have handled hundreds of fall cases.

When Your Employer Insists You Return To Work

By Mike Helfand on Posted in Tips if Injured

We are work injury attorneys who will do whatever we can to protect you. Please call us for free to discuss a case at 888-705-1766.

Here is a sadly very typical Illinois workers’ compensation experience. I am using an example of a recent caller, but this could be 100 different scenarios that all end the same way.

A woman was working at a factory in the Chicago area and fell on a wet floor. She hit her head on the way down which caused a huge gash. This was on a Friday. She went to the ER, got stitches and was told to take a few days off work and follow up with any problems.

She was hoping to go back to work that Monday, but she woke up with terrible head pain, had trouble walking and was vomiting. That is a sure sign of a concussion. She called in to work and told them what was wrong. Her boss got on the line and said that she better show up the next day. Total prick.

Her family took her back to the ER and she got to see a neurologist. He diagnosed a concussion and was admitting her for tests. He authorized her off work for the next two weeks. He also told her son that he wouldn’t be surprised if she needed a month or two to recover.

The worker is freaking out because her boss has insisted that she return despite how poorly she is doing. They wanted to know what to do.

The honest answer is that they have done everything correctly. The only thing left to do is not be intimidated by the bully boss. You provide the off work slip from the doctor and get follow up medical care. I know that can be difficult for some people, but that is what the law is.

What should happen next is that they should pay her until she is cleared and she should focus on her health. A concussion is a brain injury. This is serious business. Some jerk boss should not put her long term health at risk.

We see this happening with all sorts of scenarios. Employers who do not care about you or your health try to get you to ignore the law and what is best for you. You do not have to do this. And you should not be pressured in any way to return to work before you and your doctor feel that you are ready to do so.

Sadly we have seen too many injured workers cave and make their physical injuries much worse. In one case an injured worker went from having back pain to blowing out his back and needed a lumbar fusion surgery. That kept him off work for close to a year longer and will greatly affect him the rest of his life.

I know it can be hard when you are living paycheck to paycheck or you can not risk losing your job. We can almost always protect you. If you would like a free, confidential and no commitment consultation, please call us any time at 312-346-5320. We cover all of Illinois.

Medical Privacy and Illinois Workers’ Compensation

By Mike Helfand on Posted in Benefits

I recently read an article about medical privacy laws and it said that injured workers have it worse than anyone, including prisoners. Many injured workers are left to either disclose sensitive personal medical information or not pursue a claim at all. Of course, the insurance company hopes you choose the not at all route.

The article was written about work comp in general and was not targeted toward Illinois. I’m sure in some states that if you get injured on the job you have to turn over all of your lifetime medical records if asked. That is NOT the case in Illinois.

Under Illinois workers’ compensation law, the insurance company can ask for anything, but only have a right to view medical records that are related to your injury. So if you hurt your back on the job and also were in a car accident five years ago, they can access those old records if it mentions your back. But if you had a concussion with no back injury in that accident, they have no right to see that information.

The bigger concern is them having access to more sensitive records. This can include treatment for psychological issues, pregnancy, sexual assault, cancer care or anything else. The Illinois Workers’ Compensation Act protects you. You don’t have to share or discuss any of these things unless it somehow relates to your work injury. You are protected from sharing anything you don’t want to because it’s stigmatizing or could affect your present or future employment.

Of course, insurance companies bush boundaries. When they send you a medical release form, it typically allows them to access any and all medical records. They will tell you that if you do not sign it that it will delay your claim and may result in it being altogether denied.

Do not believe them. Yes, they have a right to medical records related to your injury. But one of the first things we do as Illinois work comp attorneys is limit the scope of the medical authorization and release form. We will cross out any language that says they can get all or most of your medical records and make sure it is limited to just treatment related to the same body part.

And in some cases, your injury is so obviously new and from a work accident that they do not need to access anything other than your current medical records.

Your right to privacy is important and should be protected. And that really is the best thing an Illinois work comp attorney can do for you. If they are not protecting you then what good are they?

Injuries When You Stop On The Way To Work

By Mike Helfand on Posted in Do I Have a Case?

Under Illinois workers’ compensation law, you are covered for work related injuries from the moment you start working until the moment you stop. That does not mean from when you clock in or clock out. It means that while your employer is benefiting from you, if you get hurt it is likely a work comp case.

So for example, if you are walking down a hallway on your way to start your shift and on company property, if you slip and fall on a wet floor, that is a case. If you clock out at the end of the day, but on your way out get hurt while helping a co-worker with a quick task, that is a case.

Generally speaking, injuries while you are commuting to or from work are not a case. The biggest exception is for traveling employees. If you drive to different customer sites every day, the moment you get into the car you are working for the benefit of the company. On the other hand, if you drive or take the train into a stand alone office every day, you are likely not covered under the Illinois Workers’ Compensation Act until you are actually at their place of business.

There are of course exceptions to all of this too. Or at least different ways to look at it. A recent caller presented a unique situation.

A Compensable Work Related Injury Driving From Home To Your Office

This worker is employed at a school. Most days he drives from his house to the school. Sometimes though he has to stop at one school where he occasionally works and then head on to the school where he normally works.

On this occasion, he stopped at the first school to pick up some supplies. As he began his drive to the second school where he would spend his day, he was rear-ended at a stop light and hurt his back. He called me wanting to know if this was a workers’ compensation case in addition to a personal injury lawsuit?

As an aside, the insurance company for the school had sent him a denial letter telling him that he is not covered for injuries that happen while commuting to school. They are 100% wrong in my opinion.

In this case, his work day started when he made a stop at that first school. It was done for their benefit. It would have been different if he just made a personal stop to see a friend or grab a coffee. He then went on to haul supplies. This was again for their benefit. It means he was working.

It can be argued that if you bring home work with you, you are still on the clock when doing that work or when you load it back into your car. There have been cases where workers drove a company vehicle that had the company logo and information on the side. The act of driving that vehicle around is advertising and serves to benefit the employer. So it’s arguable that if you had an accident in that car that it would be work comp.

Back to this case, I do not see a good argument against him having work comp benefits. And it would be important because the person who hit him has a very small insurance policy. Because of work comp laws in Illinois, he will get 100% of his medical care and time off paid for. And of course eventually he can get a settlement.

The moral of the story is do not ever listen to an insurance company that says you do not have a case. They might be right, but they are often wrong. And they certainly are not looking out for your best interests.

Work Place Violence And Illinois Work Comp

By Mike Helfand on Posted in Injuries

While most Illinois work injuries happen from things like lifting injuries, repetitive activities or slip and falls, some happen in ways that most workers could not reasonably expect. I am talking about work place violence.

Although it feels more common today than ever, I have been getting calls about work place violence since I first became an attorney in 1997. There are some common scenarios.

  • Co-workers get into a fist fight.
  • An angry customer attacks an employee.
  • An angry customer or co-worker throws an object without care where it goes to.
  • A deranged person off the street comes in and attacks you.
  • A criminal robs your place of employment at gun point.
  • Your boss rapes you.

And there are of course other ways that work place violence can happen. For it to be an Illinois workers’ compensation claim, you generally have to show that you were not the aggressor and that it happened as part of your job duties.

In other words, if you go up to a co-worker and scream in their face and push them in the chest and they respond by punching you, you were the aggressor and you would not likely get work comp benefits even if you were seriously injured. On the other hand, if you are minding your own business and someone attacks you because they don’t like how you did your job, that would be a case.

For an example like a boss sexually assaulting you, if they call you into a meeting to discuss something about the job, that would be a work comp case. If on the other hand they take you out for a drink and do it at their home, it is still a very gross crime, but your option would be to sue them as well as have them arrested.

For all of these scenarios, as attorneys we are looking to see what your actual injury is. If you get punched in the face and have swelling, but no real injury like a broken cheek bone, it is probably just a criminal matter. If you are robbed at gun point and do not have a physical injury, but have legit PTSD from that terrible experience, that would be a case. In fact, we have helped hundreds of Illinois workers with post traumatic stress from being robbed on the job.

Every one of these cases is fact specific. It requires an attorney who actually knows Illinois work comp law and has handled many similar cases in the past. If you do not go to an attorney like that, you risk not getting the benefits that you deserve.

In many of these cases, you also have the potential of a third party lawsuit. If the company knew your boss had acted aggressively in the past, you may have a right to sue them. If the customer attacks you without provocation, you could also bring an injury lawsuit against them as well. And while technically you could sue a homeless person, if they do not have the means to pay a judgment, it is likely not worth it.

If you call our office (312-346-5578) or start a live chat, you will speak with an attorney, usually right away. We will give you a free case review and help you understand what rights you have under Illinois work comp law. We are pretty direct and honest and will answer any legal questions you have in confidence.

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