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.

 

Are You Having Trouble Getting In To See A Doctor?

About six weeks ago when Coronavirus started to rock our worlds in Illinois, we wrote a blog post about how COVID 19 will affect Illinois workers’ compensation cases.  The last thing mentioned is that we don’t know what we aren’t thinking of.  This is a new situation for everyone.  One thing that clearly wasn’t anticipated was how hard it would be for some workers to get in to see a doctor at all.

It’s not a surprise that elective surgeries aren’t happening.  And it makes sense that you aren’t going to go to an ER like Rush University Hospital where a lot of patients are being treated.  What was not forseen is that even in smaller cities like Decatur, people are having trouble getting in to see physicians beyond the ones that are company clinics.

When you can’t get in to see a doctor, your condition can get worse and you can’t get an off work slip which means that you won’t get any TTD benefits even if you aren’t working.  These are obviously two huge problems.  With the Illinois Workers’ Compensation Commission mostly closed, some workers can get screwed.

So is there a solution to this problem?

There is.  While generally speaking we don’t recommend that you let your attorney dictate what doctor to see, in these tough times if you can’t find a good doctor, most lawyers will know of someone good to refer you to.  You are allowed to choose your own physician.  It’s important to have someone in your corner who will give you an honest medical opinion and help you get better.

If you can’t go to an ER, there’s nothing wrong with going to a community clinic for your first visit.  If you have a back, knee, arm, foot or wrist injury, seeing an orthopedic doctor is the way to go.  While they might not be able to do a surgery for you (they might if your condition is really serious), they can usually treat you and refer you to physical therapy.  They can also give epidural steroid injections which can usually provide significant relief even if it’s temporary.

A good, experienced Illinois work comp attorney will also work with the insurance company to make sure that you are able to get the care you need and that bills will be paid.  There are cases that have said if you delay your medical care, it can affect your right to benefits.  COVID will surely create some exceptions to this rule, but we highly suggest that you document your attempts to get treatment.  Saying “I didn’t go to the doctor because I was worried about Coronavirus” will likely not be enough to sway an Arbitrator.

Bottom line is that it is harder to get in to a doctor now compared to normal. It is harder to get a surgery.  But none of this is impossible.  Even if you can’t get a surgery now, you can get one on the schedule in most cases.  Like always, you have to look out for you and of course it helps if your lawyer looks out for you too. If you want to speak with one of our attorneys for free, contact us at any time.

Illinois Workers’ Compensation Commission Settlement Contract

One of the unique things about being an Illinois workers’ compensation attorney is that most of the documents you have clients sign, you don’t create. By that, I mean every lawyer uses the same attorney representation agreement on every case. It’s a state provided form.  By law, we have to use that agreement. This is different than every other area of law where an attorney would make up their own form.

We also don’t create unique forms for filing the case.  There is no lawsuit to prepare as you’d have to in a medical malpractice or car accident case.  We complete a document called an Application For Adjustment Of Claim.  We do have to fill in the unique info related to you such as your name, employer, where the accident took place, etc., but unlike a lawsuit, it’s a one page document.

The most important form that all cases use is the settlement contract.  It’s a two sided pink sheet.  Part of it is similar to the info entered when a case is filed, but a much bigger part is where having a smart attorney who is looking out for you comes in to play.

On the back of the contract is a big blank space where we enter the terms of the settlement.  In many cases that space isn’t enough so a rider to the contract will be created.  While this area states how much you are settling for, what’s more important are the specific terms.

Let’s say you settle a case for $100,000.00.  You think all of your medical bills but one for $5,000 have been paid.  If the terms don’t make clear that the insurance company has to pay that bill, you will eventually get stuck with it.

Another issue relates to future medical care.  If you negotiate that they will pay for future treatment, a specific provision has to be put in the contract.  If not, you are out of luck.

An additional big one happens when you settle as a worker getting a wage differential or permanent disability.  If you are on social security or think you will be soon, the contract MUST have something called spread language in it.  While you will still get your money in a lump sum, the law allows you to limit the amount that gets reported to social security.  If you don’t do this, you will either lose your social security benefits or have them drastically cut.

There are many other issues that go in to that contract like a Medicare set aside, attorney fees, who is responsible for past medical care and the body part that the injury is assigned to.  All of these can affect how much you receive now or could cost you money in the future if it’s not done right.

In cases where an insurance company doesn’t hire defense counsel, your lawyer will usually prepare the contract. If they do, they should write it in your favor.  If the insurance company does hire a lawyer, typically that attorney will write the contract.  That doesn’t mean you should just sign away.  You need to make sure your lawyer has gone over it and is sure that nothing in there could cause you harm.

This is real legal work that requires experience.  If you have any questions about this process, contact us for free at any time.

Good News For First Responders In Illinois Who Get COVID-19

There hasn’t been a ton of good news lately, so we will take what we can get.  Typically when you get injured or ill from your job, you have to prove that those problems are work related.  The other day, Governor Pritzker changed that for certain essential workers.  This is actually a very big deal.

Per the Illinois Workers’ Compensation Commission, if you are a first responder or front line worker, and you say that you got Coronavirus from the job, it will be automatically assumed that you are telling the truth and that it is correct. It’s a very big deal, because even if you are around a lot of people all day, you can likely never say for sure where you got the virus.  As a result, you will automatically get work comp benefits which means 100% of your medical bills will be paid for and all of your time off work will be compensated.  You will also be eligible for a settlement.

Those covered include health care workers, police and fire personnel, corrections officers, grocery store workers and food producers.  We’ve heard nightmare stories of some workers not wanting to go to the doctor because they don’t want to be stuck with a big bill.  That should no longer be a concern.  These workers have all been heroes.  There have been stories about some hospitals arguing with nurses about where exactly they got exposed. This ruling puts an end to that nonsense.

It of course makes perfect sense.  Why should an EMT have to worry about paying their bills if they get sick in the line of duty. If cashiers and stockers are keeping grocery stores open, they deserve to be protected.

Not surprisingly, allegedly “pro-business” groups came out against this.  Unfortunately they don’t understand that being pro worker is good for a business.  But who cares what they think?  I sure don’t.

Please note that this is not a permanent order.  It’s effective for 150 days from April 10th.  It’s also possible the order will get extended or shortened, but I don’t see that happening any time soon.

Like this pandemic itself, this is a very fluid and fast changing time. If you are reading this a month from now, things may be drastically different.  As always, no matter what your concern is, we will talk to you for free no matter where in Illinois you are.  Call us at 312-346-5578 any time.

IL Work Comp – When You Are Exposed To Chemicals At Work

Some Illinois workers comp injuries are obviously a case.  If you are walking down the hall and slip on a wet floor, tearing your ACL, it’s kind of hard to dispute that.  If hot grease burns your face, leaving a big scar, most likely the only issue in that claim is what is it worth?

Other cases aren’t as crystal clear.  You might know in your heart that your medical problems are from the job, but proving that at the Illinois Workers’ Compensation Commission is a different story.

I thought of this recently when I read about an Illinois worker with renal failure.  Renal disease is an injury to your kidneys that can be caused by many factors although the top two are high blood pressure and diabetes.  Proving renal disease is related to your job is no easy task.

In the case I read about, a worker testified that he had worked at a rubber plant for more than 20 years and constantly was exposed to numerous toxic chemicals. He gave very specific testimony about an eight year period in which he was exposed to a product called Cure-Rite 18 and inhaled dust from the product as well as had skin contact with it.  A co-worker testified and corroborated the testimony and evidence of a study that showed workers were exposed to an excessive amount of these chemicals was entered in to evidence.

Having the study was very important in proving that the worker was exposed to hazardous chemicals.  You may know what you’ve been exposed to, but in most jobs you wouldn’t be considered an expert enough in order to testify about the danger they cause. You also wouldn’t be seen as objective.

The second big factor in winning this case was the doctor for the injured worker.  He testified that two of the chemicals the worker was exposed to were known to cause the development of kidney disease.  This doctor went above and beyond the call of duty.  His testimony showed that he did extensive medical research on these chemicals and the harm that they can cause. This persuaded the Arbitrator as did the fact that the treating doctor spent significantly more time with this worker than the IME doctor did.

A chemical exposure case, especially one with a serious injury, is almost always going to go to trial.  These are not easy cases to win, but as this case shows, they are winnable when the evidence is on your side and a lot of hard work is done.  What’s interesting about this case is that this worker also had diabetes which as stated above is a big cause of kidney disease.  That shows how persuasive the doctor was and how well presented the case was a trial.

The real big lesson is that if you have a chemical exposure claim, you better have an attorney with a track record of taking cases to trial in your corner.  This was a very defendable case that appears to be have won because the work comp lawyer for this worker did an excellent job.  That great work in getting all of the evidence in was literally the difference between winning and losing.

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