IL Work Comp – Get Fired, Don’t Resign

By Mike Helfand on Posted in Tips if Injured

One strange twist in Illinois workers’ compensation law right now is that marijuana is legal, but you still get drug tested for it if you are hurt on the job.  And if you test positive, not only could your claim be denied (although in most cases we can still win for you), you could also get fired.

I saw this recently with an injured hospital worker who got hurt on the job, tested positive for marijuana and was told that she had 24 hours to decide if she wanted to resign or be fired.

While every career has its own unique traits that could influence this decision, when it comes to thinking about work comp in Illinois, what you should do is obvious.  Never resign if you have a job injury.

If you do and end up going off work due to your injury, you will not get TTD benefits unless you are taken completely off work.  On the other hand, if you have any physical restrictions and they terminate you, you will get paid until you either return to work for someone else or no longer have any physical restrictions.

Employers and insurance companies can be very sneaky about this.  They’ll say something like, “We like you, but we have to let you go. If you want to resign that’s ok with us so you don’t have to tell future employers you got fired.”  Them saying that is often a trick to get you to do what is best for them.

Not only could quitting cost you weekly pay, it could end up reducing your eventual settlement by hundreds of thousands of dollars if your injury is very serious.  With this recent hospital worker who called me, she was about to have a very serious surgery.  If she doesn’t make a great recovery ten quitting would be financially devastating.

Bottom line is we tell almost everyone not to resign and you definitely shouldn’t do so without speaking to a lawyer first so you can make an educated decision.  If you want to get our thoughts on what to do, you can contact us for free any time.

IL Work Comp – “How Do I Tell My Doctor I’m Not Ready To Go Back To Work?”

By Mike Helfand on Posted in Tips if Injured

Over the last few weeks I’ve had some injured Illinois workers ask similar questions about being released back to work.  “How do I tell my doctor I’m not ready to go back to work?” asked one of them.  “Can my doctor make me return to work if I don’t feel ready?” asked another.

First off, nobody can make you work.  The bigger issue is that if you are released to work and don’t do it, you won’t get TTD benefits and could get fired.

Ultimately it’s up to a doctor to offer their opinion.  That said, you have to be an advocate for yourself.  That means a bunch of things:

1. Make sure they are aware of your symptoms.  Don’t be a tough guy.

2. Don’t exaggerate your symptoms.  Many doctors will rightfully perform tests to see if you are telling the truth without you even knowing it.

3. Make clear what your job entails. If you have a back injury and know that when you return to work you’ll be forced to lift hundreds of pounds, your doctor needs to know that you likely have a great chance of re-injury.  If they do, they might release you with restrictions that will protect your health and safety.

4. Discuss with them what you should do if you have the same pain when working.

5. Let them know the pain you have when doing similar activities away from work. If you have carpal tunnel and your job involves typing all day, if you tried to work on your home computer and it was too much, the doctor needs to know.

6. Make clear your concerns. If your boss doesn’t follow restrictions, let the doctor know.  If you have to do more work than normal because of COVID-19 cut backs, let your doctor know.  Communication is key.

7. If you’ve been off work for a while, ask the doctor to order a work hardening or work conditioning program.  This is a medical benefit that allows you to simulate what your work day will be like and gradually build the strength necessary to perform your normal job.

What you can’t do is make a medical decision for yourself and expect to get TTD benefits.  In some cases you have to try and return to work even if you risk getting hurt again. This may not be what you want to hear, but it’s the truth and that is how we operate.  We are always straight with our clients.

The other thing I’d suggest is communicate with your employer if you are at a good place to work.  Let them know you want to physically ease in to things and/or ask if they have less demanding work.  Some companies will be jerks about, but some will be great and know that your health is in their best interests in the long run.

Flushing The Toilet Can Be An IL Work Comp Case

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

The majority of cases we get involved with are fairly straightforward. Someone hurts their back lifting a patient or a box, or they get carpal tunnel from typing too much. or they have their foot run over by a forklift.  Something along those lines is pretty common.  They doesn’t mean the case is a good one, it just means that the way in which they got hurt was pretty typical.

The cases I love though, are the unique ones.  I wrote the other day about a worker who won benefits after accidentally shooting himself while working.  There is a famous case of an Illinois worker who got hurt on a business trip in Hawaii while riding a bike in a volcano.  He won his case because he was a traveling employee.

The most recent interesting case I read about, that was a winner, was a worker who hurt herself while flushing a toilet.

The most obvious question is, how can flushing a toilet cause a work related injury?  What happened was during her normal work hours she went to the bathroom in an employee only area.  While sitting on the toilet, she reached behind her and tried to flush the toilet. It didn’t work so she tried pushing even harder.   While doing that she felt pain in her shoulder down to her elbow.

At trial she testified that there were problems with this toilet since she had started working there two years ago.   Believe it or not, she won her case.

The reason she was successful is something called the personal comfort doctrine.  Basically, you aren’t expected to be a robot for eight hours.  It’s expected that you will take bathroom or meal breaks throughout the day.  Nothing this worker did was unsafe or unreasonable. Essentially taking this bathroom break is part of her job duties.

So the question then comes, did this activity put her at risk of injury that is different than the general public experiences.  In this case although everyone uses the bathroom, this worker was put at a greater risk based on the force needed to flush this defective toilet due to the malfunctioning handle. An employer has an obligation to provide a safe work space for their workers.  That doesn’t just mean no wet floors, it can even include working toilets.  This was all within the control of the employer.  Coupled with the fact that the general public couldn’t use this bathroom and it was the only one that this woman had access to made the case a winner.

It doesn’t get more unique than this case. The bottom line is that odd or atypical doesn’t mean you don’t have the same rights as an other injured employee.  As always this is the reason why you should get a consultation with an attorney to see what your rights are.  I’d bet in this case though that seven out of ten attorneys would have not taken this case on.  And that shows how a real experienced attorney who fights for their clients can make a difference.

Illinois Work Comp- If Your Company Closes From Covid

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

A very nice, very panicked injured worker called me the other day.  He had hurt his back on the job and a couple of days later got furloughed due to Coronavirus.  He was having trouble getting in to see a doctor and then received word that his company was going out of business because of the virus.

It certainly wasn’t a great week for him.  When he called his old boss to find out how to get medical care for his back, he was told that he was out of luck since they were filing bankruptcy and closing up shop.  This isn’t a big company, but a small town, local retailer.

The injured worker assumed he was out of luck, but fortunately decided to look around.

The bad news is that he’s injured and he has no job to go back to when he gets healthy.  The good news is that his company going out of business doesn’t affect his rights to get workers’ compensation benefits.  That means he can get all of the medical care he needs in order to get better, he will get paid for his time off of work, if he has permanent restrictions he’ll continue to get paid and he will be able to get a settlement when he’s all better.

The reason the bankruptcy and going out of business doesn’t hurt him is because the company had insurance coverage.  That doesn’t go away just because the employer does. It’s a common mistake that we are seeing more and more with so many companies going out of business from Covid and the bad economy.

And in a case like this, if he has any restrictions he will continue to get paid even if the old employer could have worked with those restrictions.  This will continue when he’s discharged from the doctor although he will have an obligation to look for new work at that point.  In some cases it becomes easier to win because company witnesses that might have disputed your claim become unavailable or in general it’s harder for the insurance company to get information that might be used to sabotage you such as an HR person who has a negative opinion of you.

Obviously in an ideal world he doesn’t get injured and continues to have a job to work, but that’s not how reality plays out. So we focus on how we can help people and in a case like this we can usually help a lot.

So while I don’t want to say don’t worry if your employer shuts down, I do want to tell you not to worry that it’s going to end your work comp case.  You don’t lose your rights and your case shouldn’t be delayed.

As always, please contact us for a free consultation with an attorney if you have any questions or want help with a case.

Illinois Work Comp – Favorable IME And Other Questions

By Mike Helfand on Posted in Tips if Injured

We are experienced Chicago work comp attorneys who talk and act like normal human beings.  We help with cases everywhere in Illinois.  Call or email for a free consultation with an attorney any time.

Every couple of months we do a post that answers some questions that we don’t want to make in to a full blog post.  Here are four good ones that readers have had recently.

  • I had a favorable IME report.  What does that mean for my case?  Well, as long as your primary doctor is on the same page then it should be full steam ahead for any medical treatment you need.  Believe it or not though, we’ve seen many insurance companies try to play games even when the IME is against them.  This can include trying to get an addendum to the IME report to make it help them or trying to set up a second IME.  In almost every case we’d tell a client not to go to that additional IME, but instead would file a penalties and fees petition for any unreasonable delay in your treatment being approved.
  • Is there an Illinois worker comp settlement chart? There is no chart that tells you how much your case will be worth.  Every case is different and should be evaluated on its on merits.  That said, there is a disability table that tells you what each body part is worth if you do get injured.  We use this chart along with an analysis of your medical records, wages and claim facts to determine what your case is worth.  There is also a book called the Q-Dex that provides descriptions of trial awards in some Illinois work comp cases.  This can be a helpful guide in predicting what would happen if your case went to trial.
  • What is the Illinois Industrial Commission? That is what the Illinois Workers’ Compensation Commission was originally called.  They changed the name about 15 years ago to try and reflect what it really does.  Bottom line is that it doesn’t affect your case in any way.  The change was made to try and make the process less confusing for the public.
  • How do I get a copy of the IME report? Another good question.  Usually the insurance company will send one to your or lawyer.  Sometimes when it’s not in their favor, they won’t provide a copy.  When that happens we will subpoena the doctor.  In rare cases an insurance company will direct the doctor not to prepare a report after being verbally told they will not like what it says.  In those cases it creates a presumption at trial that the IME would have been in your favor and helps your case.

We’ll do another one of these this summer.  As always, if you have any questions you can contact us any time.

Underlying Conditions, Covid and Illinois Workers’ Compensation

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

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

By Mike Helfand on Posted in Benefits

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

By Mike Helfand on Posted in Benefits

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

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

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

By Mike Helfand on Posted in Uncategorized

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.

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