Make Sure You Know This When Settling Your Case

At some point, everyone who is hurt at work will be thinking about settling their Illinois workers’ compensation case.  A recent call showed some pretty bad lawyering and a warning sign of the one thing you must know when settling your case.

A woman had been hurt more than three years ago and was upset because it had taken her employer a year to file her case with the insurance company and while they paid her medical bills, she hadn’t been paid for her time off of work.  After some investigating we discovered that her bills were paid in 2016 which meant she still had time under the Illinois statute of limitations to file a case.

That was the good news.  The bad news is that we looked her name up at the Illinois Workers’ Compensation Commission and discovered her case was actually already settled.  She was a bit confused and it’s mostly because she had a terrible law firm in Chicago as her representation.

Her lawyer got her a quickie, low money settlement.  He never explained what that meant including the most important part: Once you settle your case it’s over and you can’t get any more money.

That sounds pretty basic to most people, but not everyone and you shouldn’t be expected to know that. Whether settling a case for $500,000 or $5,000, a lawyer should sit you down and make sure you are 100% aware that you can’t go back at a later date and re-open your case if you decide that you aren’t happy with the settlement or realize that you weren’t paid for all of your time off of work.

So it turns out in this case that she was really upset that her attorney hadn’t tried to get her compensated for the month she was off of work. He took the quick buck and kind of sold his client out.

The bottom line for you as a worker is to know that if you aren’t happy with the settlement, don’t sign.  Once it’s done, it’s really done unless the contract somehow requires them to pay more compensation. If you aren’t happy with what’s being offered or are worried about future medical care then you need to go to Arbitration.

Confused? Any questions?  Call us any time for help with cases throughout Illinois at 312-346-5578.

Are You An Independent Contractor Or Employee?

I’ve written on this blog a few times that one of the ways an employer, usually a trucking company but not always, tries to screw you out of Illinois workers’ compensation benefits is to call you an independent contractor when you are really an employee.  If you aren’t an employee then you can’t get benefits.

The IRS recently issued some guidelines on this issue because they lose a ton of money over it too.

The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work, not what will be done and how it will be done.  Whether an individual is an independent contractor or employee is unique to each case, but the following is what the IRS said that they look for:

To better determine how to properly classify a worker, consider these three categories – Behavioral Control, Financial Control and Relationship of the Parties.
Behavioral Control:  A worker is an employee when the business has the right to direct and control the work performed by the worker, even if that right is not exercised. Behavioral control categories are:
*         Type of instructions given, such as when and where to work, what tools to use or where to purchase supplies and services. Receiving the types of instructions in these examples may indicate a worker is an employee.
*         Degree of instruction, the more detailed instructions may indicate that the worker is an employee.  Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor.
*         Evaluation systems to measure the details of how the work is done points to an employee. Evaluation systems measuring just the end result point to either an independent contractor or an employee.
*         Training a worker on how to do the job — or periodic or on-going training about procedures and methods — is strong evidence that the worker is an employee. Independent contractors ordinarily use their own methods.
Financial Control: Does the business have a right to direct or control the financial and business aspects of the worker’s job?  In looking at this factor consider:
*         Significant investment in the equipment the worker uses in working for someone else.
*         Unreimbursed expenses, independent contractors are more likely to incur unreimbursed expenses than employees.
*         Opportunity for profit or loss is often an indicator of an independent contractor.
*         Services available to the market. Independent contractors are generally free to seek out other business opportunities.
*         The method of payment on the project. An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time even when supplemented by a commission. However, independent contractors are most often paid for a job by a flat fee.
Finally, the Relationship between the parties may determine the classification: The type of relationship depends upon how the worker and business perceive their interaction with one another. This includes:
*         Written contracts which describe the relationship the parties intend to create. Although a contract stating the worker is an employee or an independent contractor is not sufficient to determine the worker’s status.
*         Benefits. Businesses providing employee-type benefits, such as insurance, a pension plan, vacation pay or sick pay have employees. Businesses generally do not grant these benefits to independent contractors.
*         The permanency of the relationship is important. An expectation that the relationship will continue indefinitely, rather than for a specific project or period, is generally seen as evidence that the intent was to create an employer-employee relationship.
*         Services provided which are a key activity of the business. The extent to which services performed by the worker are seen as a key aspect of the regular business of the company.
Classifying an employee as an independent contractor with no reasonable basis for doing so makes an employer liable for employment taxes. Certain employers that can provide a reasonable basis for not treating a worker as an employee may have the opportunity to avoid paying employment taxes.

That’s a lot of legal speak right there, but in a nutshell just because your employer calls you an independent contractor doesn’t mean that you are one.  We’ve helped people with work injuries who were working as an employee for years only to be told one day that they were now independent contractors and would get a 1099.  Nothing changed in their job duties so of course when push came to shove we were able to succeed on their case.

Bottom line is that this can seem confusing, but if you want a FREE consultation to see if you have a case, contact us at any time.  We are always happy to speak with you and will always give a direct, honest legal opinion.

Who Pays You When You Skip Work To Go To The Work Comp Doctor?

Here’s a question from a reader that seems to come up a lot

Do I have to use my own sick days to attend doctor appointments related to a work injury?
Or do those follow the same guidelines of, after 3 days missed the insurance pays compensation?

It’s a common scenario.  You are hurt at work, but able to keep working.  You aren’t injury free though and have to see a doctor because of your accident.  Often times this means missing out on part or all of a day of work.  The question is, do you get paid for that time off and if so who pays for it?

The answer depends on your injury and the type of medical care available to you.  If the only option is to see a doctor during work hours, meaning that no other doctor could treat you before or after work, then workers’ compensation should pay you for any missed time.

On the other hand, if you could see a doctor after hours but choose to do it during the work day then you either don’t get paid or would have to use vacation pay or PTO through your employer to get compensated.

I was previously in physical therapy for example and went to one 6:00 p.m. session. I hated it because it was crowded since it was a popular time for treatment because it was after working hours for most people.  The PT people offered that I could come during the day and if this was a work injury and had I done that, I wouldn’t have been able to be paid by work comp for my time off because I did it out of my convenience.

While Illinois work comp laws are generally pretty friendly toward the injured worker, this is one of those situations I think is unfair.  But my job isn’t to tell you what I think the law should be, it’s to tell you what it is and how we can help you within the law to achieve success on your case.

The flip side to this situation would be if my doctor was a specialist and the only one in the area who could provide medical care for me and he only had appointments during my work time.  In that case work comp would have to pay me for missing work days to get medical care.

Like this reader, if you have any questions about if you about this or anything else, fill out our contact form or give us a call.  It’s always FREE and confidential.

Is There A Work Comp Lawyer Who Will Come To Me?

It’s a fact that most of the cases in the Chicago area, including the suburbs, are handled by Chicago based workers’ compensation attorneys.  So if you go to the court hearings in Wheaton or New Lenox and survey the lawyers, you’ll find that most of them are based out of downtown, especially the ones who are experienced.

If you don’t live in the City and maybe even if you do, you probably don’t want to go downtown.  It’s not always convenient, parking is expensive and if you have a recent injury the last thing you want to do is be in a car or walking around.

If the best and most experienced lawyers are in the City, but you don’t want to go there or can’t, what do you do?  The good news is that you never have to come downtown to hire a good Illinois work comp attorney.  Through the phone and e-mail we can learn about your case, tell you about us and sign you up.  We’ve had some cases where we got to know the clients like they were good friends, but never actually met them in person.  This is more common in cases where the client lives out of state, but was injured in Illinois, but it happens here too.

In the alternative, if you want to meet face to face, we can usually come to your house, meet you at a coffee shop or meet up at some other mutually convenient time and location.

This is all about customer service and it’s what good law firms do for their clients.  You still need to be invested in your case and do what is needed to make sure the case is successful.  But don’t hire the local guy who takes divorce, DUI’s, real estate closings and work comp just because you think he’s more convenient. In the long run you will be better off with someone who is 100% work comp, even if they aren’t up the street.

And above all else, don’t worry about coming in to Chicago.  It’s almost never needed in your case.  Focus on what law firm gives you the best chance of getting the best result.

Bonus tip, if you are downstate in central or southern Illinois, you could work with a Chicago firm, but getting a lawyer from a nearby bigger city is usually the best bet.  We work with many downstate firms to make sure you hire the best law firm for your case.

If you’d like a FREE consultation with one of our attorneys, fill out our contact form or call us at  (312) 346-5578.  We are based out of Chicago, but help all over.

The Worst Thing I’ve Heard About An Illinois Work Comp Law Firm In A While

A woman called me to seek out help for her Dad’s case.  It was at first a pretty straight forward call.  There had been a fall at work and he was injured, actually pretty badly as he’s in a wheel chair.  They hired a lawyer and while things were going well, they said the case started to go south when the paralegal they had been working with left the firm.

I asked why it would matter that the paralegal left the firm as they are replaceable even if they do a great job.  The caller told me that the paralegal had actually been handling the case and would ghost write letters that the attorney signed, answer all of their questions and made the settlement demand.  In other words, it sounds like this lawyer was letting his staff member act as an attorney.  That’s nuts and illegal.

When the assistant left, the attorney knew nothing about the case and couldn’t answer basic questions.  That was why they were calling me looking for a new attorney because they realize that they made a huge mistake in hiring him.

It’s wonderful to have a good support staff behind an attorney and often you’ll find that depending on the firm you get to know a secretary or clerk really well.  You’d talk to them at some law firms when you have to drop off an off work slip or medical records or if the attorney is in court or with a client, but almost every lawyer I know prefers to have all communication with a client directly so they don’t fall behind on important case facts.

Either way, never should a staff member be talking to the other attorney or insurance adjuster about your case and trying to negotiate on your behalf.  Does it make sense for a staff member to call your doctor to ask for copies of your medical bills? Yes.  Does it make sense for a staff member to prepare you for your testimony at trial.  NO!!!!

I don’t know this lawyer, but looked him up and he’s in his 70’s, so my educated guess is that he’s either semi retired or has health issues or something else that doesn’t allow him to handle cases the way they should be.  He probably thinks if he gets caught that it’s no big deal because his career is winding up anyway.  It’s one reason we almost never recommend lawyers that old unless they are surrounded by other experienced but still hungry and aggressive law partners.

Remember, you are hiring a lawyer and if you can’t talk to that attorney or they won’t talk to you or answer your questions, it’s a big problem and a huge red flag.

If you have questions about a case and want to talk to an attorney for free, call us any time at (312) 346-5578.

Could Nikola Mirotic Sue Bobby Portis or Is It Just Work Comp?

The Chicago Bulls aren’t going to be great this year and a bad season was made worse recently when two players got in to a fight.  Bobby Portis punched Nikola Mirotic in the face, breaking numerous bones and reportedly giving him a concussion.  Mirotic will miss at least the first six weeks of the season and Portis was suspended for eight games.

Because the fight happened during practice and because it presumably was over something related to basketball (e.g. their job), Mirotic would have a good workers’ compensation claim in Illinois.  It’s a big year for him and if he can’t get back to his normal self it will cost him millions as he’s a free agent after this year.  So the question is, can Mirotic sue Portis?

In general, you can’t sue an employer or co-worker for a work related accident. So if Jan in accounting spills her Diet Coke on the floor, doesn’t clean it up and then you  slip on it, you won’t be able to sue Jan or your company.  You can only get work comp benefits.  The exception would be that you can sue when it’s an intentional act.

So in this case, I do think that Nikola can sue Bobby if he wants, but not the Bulls themselves. They had nothing to do with this, but even if it was in the heat of the moment, it does appear that this was an intentional act by Portis.

Because of the possible damage to his career, the personal injury case could be worth way more than the work comp case.  That said, just as we consider your relationship with your employer when we handle your case, if we were representing Mirotic, we’d advise him to hold off filing a lawsuit until after the season is over and we learn what sort of contract he’s able to get.  We wouldn’t want him to be retaliated against for bringing a case.  That happens way more in the professional sports world than it does with normal employers.

We don’t write this blog for NBA players, we write it for laborers, teachers, flight attendants, CNA’s and all others who have what we’d consider to be normal, salt of the earth jobs.  But it’s important to know that the law doesn’t change just because you get paid to play a game.

Any questions about anything related to Illinois workers’ compensation law? Call us for free any time at (312) 346-5578.

 

I Can’t Believe This Chicago Workers’ Compensation Lawyer Did This

Since I will talk to anyone for free, I get a lot of calls and I hear a lot of stories about bad lawyers doing dumb, rude, shady and usually just lazy things.  There isn’t much I haven’t heard in 20 years of doing this because most of the complaints we hear about are from about four firms in Chicago and two downstate. So we hear the same things over and over because these firms do the same things over and over to their suffering clients.

Every now and then I hear something new about a different firm, but the one I heard a couple weeks ago blew my mind.

A guy called me who had been seriously hurt at work and had major surgeries.  He wanted to know what his case was worth which is not an unusual question.  He said he already had an attorney so I told him that the lawyer, who knows the case facts and has his medical records, would be in a much better position to answer that question. His response was the crazy part.

He told me that his lawyer told him that as the client it was his job to say what he wanted.  This wasn’t after the lawyer gave him a range of what the case was worth, he just told the client to tell him how much he wanted to get.

That is nuts and what’s even crazier is that the attorney works for a reputable law firm.

You hire a lawyer for their expertise and part of that comes from them knowing how to value cases through (hopefully) having handled thousands of cases before you. What if the case is worth $250,000 and the client guesses it’s worth 100k?  Well they’d lose a ton of money.  What if the client wants $10 million when it’s worth 50 grand at most.  Then the lawyer has created a problem that will lead to distrust.

Your attorney should be the head coach of the case.  You are the owner, but an owner hires a coach to run things.  You need them to offer advice along the way even when it’s unsolicited, protect you, be there to answer questions, defend you, deal with the insurance adjuster, deal with the other lawyer, resolve unpaid bills or late TTD checks, prep you for testimony or an IME and when it comes time to settle, explain to you the range of what your case might be worth and how to get the highest end of the range.

In this case, the client didn’t ask about settlement and had only recently been discharged.  He doesn’t have a final evaluation report from his doctor which addresses his future medical needs and how the injury will impact him. He also hasn’t returned to work.  All of those things affect what the value of the case could be.  Why a Chicago work comp attorney would do this is beyond me.  I can only hope that they aren’t doing it to other clients.  If they are, I’m sure we’ll eventually hear about it.

If you have questions about what your case is worth or need anything related to Illinois worker comp law, contact us any time for a free, confidential consultation.

Is Your IME Doctor Known For Being A Liar?

The other day we did a post on United Airlines employees and have done other posts on how when you work for a big company that has a lot of workers and injuries, it’s important to get an attorney who has handled many cases against them before.  It doesn’t guarantee a result, but increases your chances of success if they know the players and some of the tactics the insurance company will take.

This philosophy also is true when it comes to the dreaded IME (independent medical exam) doctors.  You already know that many of these doctors aren’t independent at all and can best be described as hired guns.  But did you know that there are big companies that routinely use the same doctor over and over.

UPS (United Parcel Service) for example seems to rotate between a few different IME doctors which is likely based on their availability or UPS knowing that if they only used one doctor that it would look bad.

We’ve seen them use one doctor on lots of cases though who has been found in some Illinois Workers’ Compensation Commission trials to not be credible.  Knowing this and knowing why can give you a leg up and prevent this doctor from destroying your case.

There are plenty of similar examples from a hand doctor who doesn’t think your job can cause carpal tunnel to back doctors who think that almost any surgery is not needed and that most patients are really fine no matter how much pain they say they are in or what their MRI films show.

These doctors really can hurt you, but if you hire a lawyer who knows their bad reputation and knows how to push back against these IME’s, you will greatly increase your chances of winning.

Has Your Attorney Handled United Airlines Cases Before

We got a call recently from a flight attendant for United Airlines who had a really screwed up case.  This person wasn’t based out of Chicago, but was able to make an Illinois workers’ compensation claim because the collective bargaining agreement allows pilots and flight attendants to bring their cases in Illinois if they were originally hired in by United.

The problem was that this worker at first hired a lawyer in their home state which was not the best choice for the worker because the benefits in Illinois are higher.  That attorney didn’t know about this rule until the insurance adjuster told him.  He then referred the case to a friend who has handled some Illinois work injury cases, but doesn’t do it on a day in and day out basis.

So while some Illinois benefits were approved, my read on the situation is that there were two big problems:

  1. The new lawyer didn’t have much experience in dealing with Gallagher Bassett, the insurance company that handles all of the United cases.  Knowing them and dealing with them on a regular basis helps out all of your clients.
  2. They didn’t understand much of what was bargained by the union nor the rigorous return to work process through the United fitness for duty program.  As this case involved a very serious injury this lack of knowledge really hurt the worker.

In general, with a big company like United who often fights these cases, it’s important to have a lawyer in your corner who isn’t in their first rodeo.  It’s no different than having an experienced pilot.  We created a state wide network of experienced attorneys and many of them have handled hundreds of these airline cases. That can help you.

In general when dealing with a big company like this, it’s important that your lawyer know how they operate.  Some things we consider:

• Whether an employer has a light duty return to work program, what forms the worker will be asked to review, whether they should be signed, and what sort of work one can expect to be given if they return to restricted duty,
• Whether a particular employer typically accommodates employers with permanent restrictions
• Whether there is a collective bargaining agreement in place and, if so, what ramifications it may have on work status and job assignments,
• Whether disputed medical bills will be paid by a health insurance company that typically does not assert a reimbursement interest
• Who the recovery agent is for a group carrier that does seek a reimbursement interest
• Whether there is a Health and Welfare Fund that is paying medical bills and whether there is ever any negotiating a reduction in the lien

Not having to figure out these things as we go helps you.  It’s not that an inexperienced attorney couldn’t get the job done. It’s that an experienced one greatly increases your chances of success.

If you’d like to talk about your case for free, fill out our contact form or call us at (312) 346-5578.  You will usually speak with a lawyer right away.

Another Victory For An Illinois Worker With A Pre-Existing Condition

One of the best things about Illinois workers’ compensation law is that you don’t lose your case just because you have a pre-existing condition.  This is especially true when you’ve been without medical care from some time.  So if you hurt your back six years ago and haven’t seen a back doctor for five years, if today you injure your back at work, an insurance company would get nowhere if they tried to deny your benefits due to a prior problem.

On the other hand, if you hurt your back at home a month ago and have been under a doctor’s care since then, if something happened to you at work today you’d have to be able to prove that the job accident made things much worse.  That’s not impossible, but it can be difficult.

Despite many cases that have gone in favor of the injured worker, insurance companies still continue to deny Illinois work injuries because of preexisting conditions and they do it by finding hack doctors who will say that your problems aren’t related to the job, but something that happened a long time ago (wink, wink).

That happened in a recent case that fortunately worked out for the injured worker as most of these do.  He was a laborer who did a lot of heavy lifting and noticed blood in his urine after that. He had similar problems three years prior, but had been fine since then.  His doctor felt that his need for treatment was do to straining at work while dragging and carrying very heavy objects.  The worker also testified that as to what happened and that he had been fine before all of this.

Of course the insurance company found someone who was willing to view the medical records of this worker and said that his problems could have been from any number of daily activities that could place pressure on the prostate.

This consulting doctor was not believed, in part because he made his opinion without a clear understanding of the job duties of the injured worker. Just as we always tell our clients to be specific and detailed with their doctors, it can hurt the insurance company when they only provide vague information.

Bottom line for you is that if you have a preexisting problem you can bet that the insurance company will deny your case, but since they aren’t the final decision makers you should not give up and let them discourage you. That is their goal and the only guaranteed way to lose is by taking legal advice from them.  Just because they say you have no case does not make it true.

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