I got a call from a really nice woman who had hurt her shoulder a few years ago, had surgery and returned to work on light duty. While working light duty she lifted a box overhead, felt a pain in the same shoulder and went to the doctor. After a MRI she discovered that she had re-torn her rotator cuff and needed another surgery. She’s expected to be off work for at least six months and is currently receiving TTD benefits.
The issue is that three years ago she was working around 35 hours a week at $15 an hour as she had just started the job. Now she’s working about 50 hours a week and makes over $20 an hour. She has an attorney who told her that the TTD is based on the original accident date from three years which of course means a big financial loss for her.
Her attorney is wrong.
Temporary aggravations don’t result in a new case, but this is clearly way more than a temporary aggravation. It’s a separate, new accident and that means that a new case should be filed with the higher average weekly wage and as a result, higher TTD.
Just because it’s the same body part doesn’t mean you can’t file more than one case at a time. While we discourage our clients from filing a case for every minor thing (because it makes you look like being a hurt employee is your job), if you have real treatment and a real injury you should of course file a case, even if there’s more than one accident open at once.
Some people work in dangerous jobs. Some people have bad luck. Others try to do more than they probably should and their body breaks down. None of that stops you from having a case or more than one case at once.
I really don’t get why this attorney is giving such bad advice. It can’t be a laziness thing because this doesn’t require much work. Perhaps they only dabble in Illinois work comp law and don’t know what they are doing. Either way, when you have a work related injury that gets worse from a work activity, you can have two cases and if this results in a higher wage payout for you that’s allowed too.