Underlying Conditions, Covid and Illinois Workers’ Compensation

The number of people who have died from Coronavirus is staggering.  We have passed 90,000 total deaths including more than 4,000 in Illinois.

Some of these people who have died were elderly and had pre-existing conditions. Others were younger and healthy before they got sick.

Whether you pass away or simply get infected, if you can prove you got Covid 19 from your job, you have a workers’ compensation case.  While some people like to argue that those with underlying conditions shouldn’t count toward the Covid death toll (I strongly disagree), it’s important to know what that argument means when it comes to Illinois work comp laws.

There is a legal principle in Illinois that says your employer takes you as they find you.  In simple terms this means that you don’t get punished because you have a pre-existing condition that gets worse from doing your job.  So if you have a bad back to begin with and then it gets worse from lifting on the job, you’d have a case.

In the same respect, let’s say you work at a nursing home, meatpacking plant or any other place in Illinois.  You’ve got a heart problem or COPD or diabetes, etc.  You are not healthy necessarily, but you are able to work.  If you get sick and die from Covid, your loved ones would have a work comp case if you caught it on the job.  Even if your life expectancy was only a couple of years, up to 25 years of death benefits would be received.

And of course these rules don’t just apply when someone dies.  If you have an underlying condition, it’s certainly more likely that Covid will hit you harder.  You don’t get punished if that happens. In fact it likely makes your case worth more.

It’s important to know that more than one in four people are considered to have an existing health problem.  That is a huge number.  Fortunately Illinois workers comp law protects those people and doesn’t allow insurance companies to come up with b.s. defenses to deny you benefits if you get sick or hurt.

The bottom line is that you shouldn’t worry about what anyone is saying about this terrible virus and instead focus on what the law is.  If you have been infected or simply have any questions, you are welcome to call us any time at 312-346-5578 for a free consultation.  We help all over Illinois.

I Can’t Get My Lawyer To Make A Settlement Demand

When people call us looking for a new Illinois work comp attorney for their case, we want to know why they aren’t happy with their lawyer.  While it costs you nothing to switch lawyers, we want to make sure that we can do a better job than your current attorney if we are going to take over.

In some cases the lawyer is doing everything right, but is not explaining what they are doing to the client.  In other cases they are doing a terrible job and it’s smart of you to switch law firms.

One injured worker who called us recently wanted to switch firms because, “I can’t get my lawyer to make a settlement demand.”  She was anxious to get the case over with and didn’t understand why her attorney wasn’t trying to get the case resolved. Upon closer look, it was clear that she was right to be mad.  She had been back to work without any physical problems for almost a year and had her last visit with the doctor over six months ago.

The question is, when should your lawyer make a settlement demand?

The answer can depend on the unique facts of your case. I once represented a man who desperately wanted his case over so he could move out of state and be near his grandchildren. That claim we rushed along as soon as he needed no more medical care.  In most cases though, this is what you should think about:

1. Be released back to work and able to do your job without problems.

2. Be discharged by your doctor from treatment.

3. Will you need future medical care for something like removing hardware put in in a surgery?

4. Is your job secure?

5. Do you have permanent restrictions?

6. What part of your body is injured?

7. Are you at risk for a re-injury on the job?

8. What time of year is it?

All of these items can influence when we’d tell a client to try and settle a case.  Some might not make sense until you dig deeper. For example, insurance companies are more desperate to resolve claims the closer it gets to the end of their business year.  So sometimes it makes sense to aggressively go for a settlement in November even if you haven’t been back to work long.  You may end up with much more money albeit by taking a chance.

In general though we tell clients that at least a month to three months of working without problem and being discharged from a doctor is a good idea before making a settlement demand.

What I don’t get is why some lawyers in Illinois like this one wait too long to do the work.  They only get paid if the case gets resolved.  So if the client wants to settle and is all better, you’d think that they would do what they can to try and make that happen.

Bottom line is that the answer depends on your goals and case facts, but in most cases once you are discharged from medical treatment you should start thinking about it.  Even if you aren’t going to make a settlement demand for six weeks, you can start making sure all of your bills are paid, getting medical records, etc.

To Win, You Have To Prove An Accident And Causation

I try not to write too overly lawyerly on here, but some things are legal issues that have no plain English explanation.  So bear with me on this one.

When you are hurt on the job in Illinois, you have to prove that your injury arose out of, and in the course of, your employment.  In simple terms, you must show you were hurt while doing your job duties in a way that benefits your employer.

Showing you had an accident isn’t enough to win benefits.  You also must show that your injuries and need for treatment are “causally connected” to the accident.  I first learned about “casually connected” when I took a workers comp class in law school way back in 1996.  Essentially it means that you must show that your injuries are a result of the accident.  You don’t have to prove it’s the only cause or primary cause, but must show it’s at least a contributing factor.

The #1 way that insurance companies fight cases that seem like they should be accepted is by saying you have a pre-existing condition.  This is their way of stating that your injuries aren’t “causally connected” to the accident, but instead you had a temporary problem and everything is related to the older injury.  It’s not always a successful defense, but certainly is one they will try any time that they can.  This includes trying to pin problems on medical treatment you needed 10-20 years ago.

There are other ways that causal connection comes in to play in Illinois work comp cases. If you need a surgery, for example, you have to show that your accident made that surgery necessary.  This issue came up in a recent Illinois Workers’ Compensation Commission case.  A machinist testified that he reached down to pull a lever and felt a pop in his left shoulder.  Eventually he was diagnosed with a torn rotator cuff.

The Judges found that he did in fact have a work related accident.  There was no dispute that what he said happened actually happened.  The Judges, however, also believed the IME doctor who testified that the job duties, without significant force, couldn’t have caused a torn rotator cuff.

So in as plain English as I can describe it, causal connection requires you to have a credible doctor state that your need for treatment and/or being off work is related to getting hurt while working.

The other big argument when it comes to causal connection has to do with what is known as an intervening injury.  Let’s say you hurt your back while lifting a patient.  You report it to your boss, get medical treatment and start physical therapy.  One day you are driving home and get rear-ended.  Your physical therapy was almost complete, but now your back pain is worse.

So the legal argument becomes which accident is the reason you need medical treatment.  It’s not always obvious.  One case could result in an Arbitrator saying that the car accident changed the injury enough that it ended the work comp case.  Another case could say that your back was so broken down that the car accident was just a temporary aggravation.

These are the types of issues where a lawyer really earns their fee.  As an injured worker it’s not always easy to anticipate this type of problem coming up. When a lawyer gets a case, if they are doing their job, causal connection is part of their legal analysis in determining if you have a case.

I hope I didn’t confuse or bore you. If you have any questions about causation or anything else, you can always call or email us for free any time.

Illinois Worker Shoots Himself, Gets Work Comp Benefits

One of the first things every employee in Illinois should know about workers’ compensation law is that it’s a no fault law.  If you want to sue a doctor you have to prove the doctor was negligent.  But to claim work comp benefits you don’t need to show anyone was negligent and you can still get benefits even if you were the one who caused the accident.

This principle was on display in a recent case of a worker at a gun store.  He was a sales person and firearms instructor at a store with an on-site firing range.  His job duties involved selling guns and ammunition and teaching others how to safely use guns.

One day he came in to work and loaded bullets in to the clip of a pistol.  While he putting the gun in to a holster it went off and shot a bullet into his leg.

There is clearly nobody at fault here other than the injured worker.  Maybe it was bad luck, maybe he was careless.  Either way, this risk of injury was part of his employment.  His boss encouraged workers to carry loaded firearms.  The Arbitrator at trial found that the employer got a benefit from this, as it discouraged robbers and was also a helpful marketing tactic that lead to more sales.

The bottom line is that this accident and injury was a unique risk to his employment, so he was awarded benefits.

Fault simply does not matter when it comes to Illinois work comp cases.  In exchange for that, you give up your employer for negligence.  The only exception is if you are drunk/high or somehow engaging in “horseplay.” So if this worker was drunk he would have lost his case.  If he was clearly goofing off when this happened, he would not have been awarded benefits.

Fortunately this injured worker did not die and nobody else got hurt.  And fortunately for him, Illinois law is on his side and he doesn’t get punished for getting hurt while doing something his employer wanted him to do. All of his bills and lost time related to this injury were paid and he’s able to get a settlement for the permanent nature of his injury and how it will affect him in the future.

If you want to know if you have a case or are looking for representation, you can call us for free any time at 312-346-5578.  We help with cases everywhere in Illinois.

Three IL Work Comp Cases I Read About That You Should Know

Sometimes I read about a case that went to trial at the Illinois Workers’ Compensation Commission and think my readers would benefit from knowing about it, but I don’t want to do a full post on it. Here are three that fit the bill.

Case #1: A Village of Merrionette police officer left the station to go to his squad car.  Instead of walking on the sidewalk, he took a shortcut through the grass.  While doing this, he fell and hurt his ankle.  This was a shortcut other employees also took and he was never reprimanded for doing so.  His case went to trial and the Court ruled that he took an unnecessary risk that was for his own benefit and not part of his job duties.  As a result his claim wasn’t compensable under the Illinois Work Comp Act.

The lesson: Don’t take risks that you don’t have to, but also don’t give a recorded statement.  Whoever the insurance adjuster was on this case must have done a real thorough investigation and while I can’t say for sure, I’d bet this officer told them too much and it was used against him to beat his case.

Case #2: A candy factory worker was going down the stairs at work and slipped for no provable reason, resulting in an injury to her shoulder and back.  Generally speaking an unexplained fall on a stair is not a case. In this claim, however, the worker testified that she went up and down the stairs eight times a day and it was the only way to get from the break room to the work areas.  Since the public couldn’t use these stairs, she was found to be at an increased risk of injury because of the number of times she had to go up and down and won benefits.

The lesson: Don’t accept a denial of your case without talking to a lawyer.  If your attorney knows what they are doing they will ask all the right questions to make sure they have all the information needed to see if there is a way to win.  Also having a real trial attorney makes a big difference.

Case #3: A severely disabled man went to trial and won his case.  He was found to be permanently and totally disabled due to a severe hip and back injury. Because he went to trial he kept his medical rights open.  His condition got worse and his treating doctor recommended a Tempur-pedic adjustable bed, a La-Zy lift recliner and a motorized scooter.  It might not seem like it, but those are medical devices because they are being recommended by a doctor to ease pain.  The insurance company fought it even though they were recommended by several treating doctors.  Ultimately the Court found that there was a change in the injured worker’s physical condition and ordered the insurance company to pay for these devices.

The lesson: If there is something that would assist you in either getting better or being more physically comfortable, talk to your doctor about it.  If your doctor agrees then it’s a medical benefit and could be covered as part of your case.

One Illinois Workers’ Compensation Law That Is Not Followed

Every now and then you will hear a story on the news about some state that repealed some crazy law.  Or you learn about some ridiculous sounding law that is never enforced.  For example, in Illinois it’s illegal to possess more than $600 worth of salamanders.  Raise your hand if you know anyone who has ever been arrested for that.  In Texas, it used to be illegal to milk your neighbor’s cow.

The Illinois Workers’ Compensation Commission generally enforces all of the provisions of the Illinois Workers’ Compensation Act.  But there is one law that injured workers and employers for whatever reason choose to ignore.

Under Illinois law, you are entitled to vocational rehabilitation benefits if your work injury causes a reduction and your earning power and there is evidence that vocational assistance will increase your ability to earn more.  You typically prove this by showing that you can’t go back to your old job and a job search has lead you to find either no jobs or ones that pay you less than you’d earn in your old job.  If you don’t look for work on your own, you likely won’t get this benefit and will reduce the value of your case.  This law is heavily followed and enforced.

What isn’t followed is a law that says when you miss more than 365 days the employer must provide a written vocational assessment that addresses the medical care you’ve had and if appropriate, what rehabilitation you need in order to get back to work.  That could include ordering voc rehab for you which generally allows you to choose a person who can help you with resume, job search, etc. at no cost to you.  It can even include paying for you to go back to school if that is appropriate.

I’m not saying this never happens.  What I am saying is that I just read a court case about this being enforced because it didn’t happen. It’s the first time in my 23 years in practice that I can recall reading about this benefit being an issue in a case.  And I almost never see a copy of these reports because it almost never happens.  Why?  Because generally speaking it doesn’t really change much. Every now and then you’ll see some insurance company that does this either because they think they have a novel strategy or someone actually knows the law, but it’s really rare.

There might be times when it’s a good strategy for you to consider enforcing this rule. It’s usually when you want voc rehab but it’s been denied. Otherwise, if you’ve been off work for over a year and are getting benefits, I’d probably just chill and work out what you need to do to protect yourself with your lawyer.  There is no need to draw attention to your case by asking for this report as it may make their defense of your claim more aggressive than normal.

 

Illinois Work Comp and Sham Jobs

Some of the ways insurance companies try to defraud you are in plain sight.  They tell you your case is under investigation when it’s really not.  They send a nurse to talk to your doctor when it’s against the law.  These are things that shouldn’t happen under Illinois work comp law, but they do.

Whatever they do, it’s done to save them money. Period.  They want to save money on your medical bills, time off of work and most of all, on what they pay you for a settlement, if anything.

One way we determine what your case is worth is if you have any physical restrictions and if so, does your employer have a job for you within those restrictions.  If you were making $40 an hour when you got hurt and can now only work a job making $15 an hour, your case would likely be worth a few hundred thousand dollars.  On the other hand, if you had a serious injury but can get back to work at the same rate, your case would be worth much less.

So insurance companies are motivated to have you get back to work.  What can happen is that they tell the employer to find a job for you.  The employer might not want to take you back because they have nothing for you to do, but get worried about their insurance rates going up.  So they create a sham job where you are paid the same amount as before, but aren’t really doing much of anything.  I’ve seen workers have to stuff envelopes, sit at the door or answer phones even though it had nothing to do with their skill set or experience.

What happens is that the insurance company will settle for a smaller amount because you no longer have a wage differential from the old job and the current one.  It’s not like you get nothing, but it’s not uncommon for the case to be worth 5-10 times less than it normally would be.  Once you settle the employer waits a month or two and then gets rid of you.

The big question is, how do you fight this?

First, if you think it’s a sham job, you can get in a game of chicken.  See if they let you work it for six months or so before engaging in settlement discussions.  They might get rid of you and make clear your case is a wage differential worth in the six figures

Second, when negotiating, your lawyer should argue the fact that it’s not a real job because it doesn’t exist anywhere else.  As a result you have diminished earning potential and your case is worth more.

Third, request vocational rehabilitation to secure evidence from a job counselor as to what the real job market it for you.

Finally, don’t be afraid to take the good evidence you have and go to trial.  If you are doing a job nobody has done before or one that nobody with your qualifications has done or if they are paying you way more than someone normally gets paid in that job, it can be proof that you are entitled to a wage differential award.

The bottom line is that while you usually can’t flat out turn down a job offer, if you know it’s not a real one, make sure that you talk to a lawyer and get a game plan together.  It could literally be the difference of hundreds of thousands of dollars.

What Is Man As A Whole Under Illinois Workers’ Compensation Law?

Some Illinois work comp legal terms make total sense and need no explanation. Others for whatever reason are very confusing and if you’ve never been involved in a work injury case before they seem like a foreign language.

One such term that comes to mind right away is “man as a whole.”  When you settle your case, you get a percentage of loss of use to a certain body part. It’s a legal fiction that tries to state that you’ve somehow lost a certain amount of use to a part of your body. I call it a fiction because it is something you get even if you make a full recovery.

If you hurt your knee, your settlement will be based on a percentage loss of the leg. If you hurt your elbow, you will be paid based on a percentage of the arm.  If you hurt your wrist it’s based on a loss of the hand.  Each body part is assigned a certain value.  A leg is worth 200 weeks of benefits.  So if your leg got cut off, you’d receive 200 weeks of benefits. If you had a surgery and an Arbitrator awarded you 25% loss of the leg, you’d get 50 weeks of benefits even if you can walk.

There is no loss of use of the back or neck or head.  They are all grouped in to something called “man as a whole.”  What that means that if you get a concussion or a back fusion from the job, it’s called man as a whole even though they are different body parts.  Man as whole injuries are the most valuable cases in Illinois work comp as they are based off of 500 weeks of benefits.

You’ll never have a 100% loss of the man as a whole case because if you had your head cut off you’d of course die and if you back or neck were so seriously injured you’d receive permanent disability benefits.  But it’s not uncommon to have such a big injury that you get 40% loss of a man as a whole as your settlement which is the same as you’d get for having a leg cut off.

As of now (an important case related to it is under appeal), if you hurt your shoulder, it’s actually considered a loss of use as the man (another way to say man as a whole case).  This is important because if you hurt your arm or any other body part and get a settlement, if you ever have an injury to that same body part in the future, your future settlement would be reduced by the old one. For example, if in 2015 you settled a work comp case for 15% of the leg, if in 2020 you had a new injury that was worth 25% of the leg, you’d only get 10% of the leg as the insurance company gets credit for the old injury.

But for man as a whole cases, there is no credit.  So you can get 35% loss of the man in 2015, 40% loss of the man in 2018 and 35% loss of the man in 2020 (total of 110%) and get paid the full amount each time.  This is really important and a good lawyer won’t put the settlement to any body part if they can avoid it.

These body parts are worth the most because if you have injuries to any of them then the rest of your body will not function well. It’s not common sense stuff for sure.  If you want to talk with one of our lawyers for free about it, you can call or email us any time. We help injured workers everywhere in Illinois.

IL Work Comp – “Does My Job Have To Send Me To A Doctor?”

One of the hardest things about getting hurt on the job is trying to educate yourself on what Illinois work comp laws and rules are while trying to deal with an injury and worry about having money to pay to live.  You can’t and shouldn’t be expected to know  everything or anything which is one reason why I write this blog and always offer free consultations to anyone who wants to talk about a case.

Right away after an accident, many injured workers have the same thought: “How am I going to pay for medical care?”  Most people don’t know that if you are hurt at work, you don’t need health insurance because work comp pays for 100% of your care related to your accident.

The other big issue is that some people believe that their company has to send them to a doctor.  This happens because many large employers contract with “company clinics” which is another way of saying doctor’s office that treats a lot of injured workers as well as regular patients.  Companies send workers there because it’s usually cheaper and often they will say a worker is fine when an objective doctor would say more care is needed.

A caller to my office had a different problem though. He was hurt at a large employer and was waiting for them to tell him what doctor to treat with.   He thought that is how Illinois work comp cases work.  After getting frustrated he called me asking,

“Does my job have to send me to a doctor?”

The answer is that they don’t.  But the bigger answer is you don’t have to go see their doctor for treatment unless you are in a union that requires it. You can see any doctor that you want to see and even if your union agreement requires you to also go to a company clinic, you can still see the doctor you want to see.

Whatever you do, you shouldn’t wait on anyone to send you to a doctor if you are in pain and need medical care.  The longer you wait to get medical help, the harder it is to prove that your need for treatment is related to the original injury.  When an employer or insurance company doesn’t let you know that you can get treatment, they often are just trying to delay you long enough that it will create a possible defense to your case.

Nothing is more important to your health.  You also don’t want to go bankrupt because you saw a doctor.  The great news is that if you are hurt at work, you can get the medical care you need with no co-pays and no out of pocket expenses and you can choose whichever doctor you want. Just be sure to tell them the truth about how you got hurt at work and make sure to notify your job that you were injured while working.

When You Can’t Look Your Lawyer In The Eye

Even before COVID 19, in many of the cases we get involved with, the client and the attorney never meet face to face.  In some cases that’s because the client lives out of state but was hurt in Illinois.  In others it’s because we email paperwork to sign up and the handling attorney and injured worker communicate via phone, email and text.  As long as the client is happy that makes sense.  Of course if there was going to be a court hearing, the client would come in to the office to prepare for trial with whichever attorney is handling their case.

In my experience and that of the attorneys throughout Illinois that I work with, as long as the injured worker is happy then we will work with you however you prefer.  Some injured workers want to be able to go see a lawyer in person, others don’t care.

With the quarantine, most people are choosing to limit their travel and face to face interactions. We all know about precautions you can make if you do come in to an office such as wear a mask, not get too close, etc.  You can also obviously have a Zoom meeting with a lawyer if that makes you comfortable.  I encourage you to do so if you can.

For some people though, they want to look you in the eye, in person.  That’s a reasonable want, but in most cases it’s not possible right now.  So how do you judge a lawyer’s character when you can’t be face to face.  Here are some thoughts:

  1. Do they seem to have no time for you on that first phone call?  That’s a bad sign. Not to say you should be on the phone with them for an hour, but if they are rushing you when they are making a sales pitch as to why you should hire them, then they probably won’t make time for you after you are signed up.
  2. Ask about their firm’s plan right now and for when things open back up.  If they don’t have one, again it’s a red flag.
  3. Find out how many attorneys are in their office.  If it’s only one that might be reason to be concerned especially if they are older.  Coronavirus tends to knock you out for a while.  If they don’t have a team in place and get sick, it’s their clients who will suffer.
  4. Nothing to do with the virus, but find out how many cases the attorney has taken to trial in the last year.  If it’s less than ten, it’s a bad sign.
  5. Ask what they can do for you now when the Illinois Workers’ Compensation Commission is closed.  If they have no plan, it’s a bad sign.
  6. Beyond all of this, for most firms you are getting an answering service right now. If you don’t get a quick call back right away, you should worry.

For us and many others, lawyers are in the office and taking calls directly when the phone rings.  We don’t promise to tell you what you want to hear, but always tell the truth. If you would like a free consultation, contact us at any time.

 

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