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Penalties Anyone? Or, Justice Finally Served
Friday, January 6th, 2012
I recently obtained the following decision from the workers’ compensation division of the Illinois Appellate Court:
http://www.state.il.us/court/Opinions/WorkersComp/2011/November/3100807WC.pdf
The background of the case is that Peter Ferracuti won a permanent total disability award for our client, along with payment of all medical bills and off-work benefits. The Arbitrator also awarded penalties against the employer for how they behaved during the claim. The Commission upheld the award but reversed the Arbitrator on penalties. The employer never appealed the Commission’s decision but we appealed on the penalties. The employer then refused to pay our client any of the underlying award she was owed, including the weekly permanent disability benefits, for over two years while the original penalties issue was on appeal. The employer’s attorney argued that until the total case was over it did not have to pay anything.
The Appellate Court strongly disagreed. The bottom line from this case is that the employer is going to be liable for over $100,000 in penalties for non-payment. Insurance companies play too many games and it is good to see when a flag finally gets thrown. Hopefully the outcome will discourage other employers and insurance companies from repeating the same behavior.
– Thomas M. Strow, Attorney
There’s No Place Like Home: Ottawa Retains its Venue Status
Monday, September 5th, 2011
For those of our blog readers who were not aware, the Ottawa hearing site for workers’ compensation cases spent some uncomfortable time on the chopping block recently. As part of the new workers’ compensation reform that passed earlier this summer, a panel created by the Governor had to help determine which “venues” – or hearing sites – would remain and how to group them together into new “zones.” In one of the well-circulated proposals, Ottawa was to lose its status as a hearing site, which would have been a major loss to local injured workers, employers, and their attorneys.
Thankfully, due to some great grassroot efforts, Ottawa has been retained as a hearing site. Ottawa will now be in a rotating “zone” with the cities of Joliet and Geneva:
http://www.iwcc.illinois.gov/news.htm#reg
We would like to give a special thanks to State Senator Sue Rezin, Ottawa Mayor Bob Eschbach, a host of attorneys, and especially our own Jennifer Kiesewetter, for all of their hard work and support in keeping Ottawa a vital part of the workers’ compensation system here in Illinois. It is a Happy Labor Day for us all.
– Thomas M. Strow, Attorney
Protecting the Ugly
Saturday, September 3rd, 2011
My colleagues and I recently discussed a rather large verdict obtained on a downstate case. We tended to agree that the plaintiff’s attorney reminded us of John Edwards with his good looks and fluffy hair. During the conversation, one of my coworkers made the comment, “Jurors love good-looking people.”
It’s true. That’s why an op-ed recently published by the New York Times titled “Ugly? You May Have a Case” didn’t seem that far fetched.
Daniel Hamermesh, a professor of economics at the University of Texas in Austin, suggests extending legal protections to the ugly. Might he have a point? According to his article, research has shown that attractive people make more money than their ugly counterparts, secure more attractive mates who make more money, and get better mortgage deals.
Men and women equally benefit or suffer from their perceived beauty or ugliness. While a woman’s looks may affect her ability to find a mate, a man’s looks have a greater impact on his career.
Due to the disadvantages ugly people face, Professor Hamermesh posits that a small extension of the Americans with Disabilities Act with enforcement by the Equal Employment Opportunity Commission could provide the remedy to the disparity in treatment between the swans and the ugly ducklings. Currently, some states even have laws banning discrimination based on looks in employment and housing.
We probably will not see new federal laws protecting the unsightly anytime soon, but Professor Hamermesh makes a point. Attorneys certainly take into consideration the relative attractiveness of their clients as compared to the opposition when evaluating the strength of a case at trial.
A link to the New York Times article: http://www.nytimes.com/2011/08/28/opinion/sunday/ugly-you-may-have-a-case.html?_r=1&scp=5&sq=law+professor&st=nyt
– Morgan C. Klein, Attorney
One of These Things is Not Like the Other: Or, Why Am I Not Disabled if I’ve Been Found Disabled?
Monday, August 22nd, 2011
Many injured workers who are found to be permanently and totally disabled under the Workers’ Compensation Act are also found to be disabled under the federal Social Security program. However, just because the Social Security Administration finds an injured worker to be disabled, it does not mean the Illinois Worker’s Compensation Commission has to do the same. And vice versa. This fact is something injured workers can sometimes have difficulty understanding. After all, why are they having to fight so hard to prove their disability to the Commission when the federal government has already said they cannot work?
The reason is because both entities are completely different administrative agencies with a different set of standards and laws. The Illinois Workers’ Compensation Act is a creature of Illinois state law and has a different definition of what constitutes a permanent disability than does the federal Social Security Administration. The situation can sometimes get confusing because a workers’ compensation client is asked to prove a good faith job search effort even though they are receiving Social Security disability checks. However, a diligent job search is critical to most cases of permanent disability with the Commission, and an injured worker should not use the Social Security decision as an excuse to just sit at home and watch TV. An award of SSDI is fine, but it is not the end of your workers’ compensation case.
The bottom line is that a worker always has the burden of proof in his or her claim. Do not let your guard down just because you have been awarded Social Security disability benefits. You must continue to build your workers’ compensation case through a good faith job search effort. If you do, it is much more likely both agencies will reach the same conclusion.
– Thomas M. Strow, Attorney
Snacktime! The Personal Comfort Doctrine
Sunday, August 21st, 2011
According to the Illinois Workers’ Compensation Act, for an injury to be compensable the actions which led to the injury must “arise out of” and be “in the course of” one’s employment. If the wounded employee suffered an injury at work, then usually, the “in the course of” prong has been met. Generally, an act that causes injury arises out of the employment if the act is particular to the employment or the employee has been exposed to a risk greater than that which the general public has been exposed.
I only mention the classifications above, and defined them very loosely, to highlight an exception that falls within those two prongs. The personal comfort doctrine allows some injuries that occur while the employee tends to business not immediately related to the employment to be covered under the Illinois Workers’ Compensation Act. For example, the courts have found that accidents suffered by the employee while eating lunch on the employer’s premises, getting injured by a vending machine, using the bathroom, taking a cigarette break, or resting have been compensable. Courts have even found that employees have been entitled to benefits while playing Frisbee on an employer’s premises.
The point is, you may have a valid claim even if you were just using the loo when you suffered the accident.
– Morgan C. Klein, Attorney
Despicable Manners or Sexual Harassment?
Monday, August 8th, 2011
Despite widespread knowledge that sexual harassment violates the law, it continues to be a problem. Both women and men can be the victims or perpetrators of sexual harassment, and it can happen between people of the same sex.
Generally, sexual harassment can be divided into two categories: (1) quid pro quo and (2) hostile work environment. Quid pro quo harassment involves a “you scratch my back, I’ll scratch yours” mentality. An offer to discuss one’s potential pay raise over dinner may be considered quid pro quo harassment.
In a hostile work environment, sexual advances or conduct unreasonably interfere with an employee’s work performance. A harassed employee must show, both subjectively and objectively, that the severity and pervasiveness of the unwanted sexual advances created a hostile work environment.
Obnoxious behavior or a boorish, adolescent sense of humor may reflect poor judgment skills on the part of the perpetrator, but it may not rise to the level of actionable sexual harassment in a court of law. Deciding to pursue a sexual harassment claim requires analysis of the facts involved. Contact an attorney at the Law Offices of Peter F. Ferracuti, P.C. if you feel that have been the victim of sexual harassment.
– Morgan C. Klein, Attorney
Don’t Fall Into THIS Gap
Monday, August 8th, 2011
A gap can be good if you’re a hitter in baseball or in need of sporty clothing, but very bad if you’re an injured person in need of treatment. Aside from “pre-existing conditions,” there is nothing insurance companies love to exploit more than gaps in medical care. For example, let’s say you suffer an injury and go to the hospital. You maybe even go see your family doctor after that. You think time will heal whatever problem you have so you don’t go anywhere else. But, months later, the problem still hasn’t gone away. You decide to go see an orthopedic doctor and you’re diagnosed with a serious problem. You file a lawsuit thinking it will be easy to link up your injury to initial accident because, after all, you know you’ve been hurting this whole time.
The problem with that logic is that life can change in an instant. And between the point you had your initial injury and finally sought medical care again there are a lot of instants. The insurance company does not have to convince a jury that you had a new accident between the original one and your new medical care. Just raising the possibility of it can be fatal to your claim. The assumption they invoke is that if you were really hurt that bad to begin with you would have returned back to the doctor sooner. Thus, now that you have this new treatment, it must mean something new happened unrelated to your case that you’re now trying to blame on the defendant.
Unfortunately, the legal system sometimes fails to reward those of stoic spirit who try to live and work through pain. On the other hand, if you treat too much you will be accused of malingering. The best thing to do when you suffer an injury is to just be consistent with your treatment and not allow significant periods of time to pass between visits. You also want to always remind the doctor you are there because of the original injury you suffered.
By remaining mindful of the fact you always have the burden to show your current condition is still related to the original accident, you should be able to avoid having your case swallowed by gaps that can no longer be filled. Treating reasonably and consistently will give you the best chance for a successful outcome both medically and legally.
– Thomas M. Strow, Attorney
Protect Yourself! Un/Underinsured Coverage
Wednesday, August 3rd, 2011
Being in an auto accident with someone with has insurance coverage is bad enough, but when a Defendant driver has little or no insurance, it may seem like the end of the world! Help is on the way in the form of your own auto insurance policy. If you have uninsured or underinsured coverage on your own policy, your insurance company will pay, up to the policy amount, for your injuries.
We know a driver is uninsured if they don’t have a valid insurance card or if their policy is expired at the time of the accident. But when is a driver underinsured? An underinsured driver is someone whose policy is too small to cover the amount your case is worth. For example, a Defendant may have $20,000 worth of insurance coverage, meaning $20,000 is the greatest amount the Defendant’s insurance company will have to pay you. While $20,000 may seem like a lot of money, when you consider that the cost of an MRI alone could be thousands of dollars, the bills add up fast and after paying all the medical bills, there still must be money to compensate you for your pain and suffering. That’s where your own policy’s underinsured coverage would kick in and potentially provide more money.
While it is illegal in Illinois to drive without insurance, we see clients hit by uninsured drivers on a regular basis, so, we strongly recommend you pay for uninsured and underinsured such coverage in your own auto policies to protect yourself from other drivers on the road.
– Jane M. Ryan, Attorney
Marion man wins $4.2M in Retaliatory Discharge Suit
Thursday, July 28th, 2011
A Marion man won a $4.2 million dollar judgment Tuesday in Franklin County against his former employer for terminating him in retaliation for filing a claim under the Illinois Workers’ Compensation Act. To prove a cause of action for retaliatory discharge, the plaintiff must show that he or she was discharged in retaliation for legally protected conduct, and that his or her termination violated a clearly mandated public policy. Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 35 (1994). Illinois courts have held that firing an employee in retaliation for filing a workers’ compensation claim qualifies as retaliatory discharge, as long as the Plaintiff can prove that he or she: (1) was employed at the time of the injury; (2) sought workers’ compensation for that injury; (3) lost his or her job; and (4) was terminated due to his or her attempt to obtain workers’ compensation benefits. Clemons v. Mechanical Devices Co., 184 Ill. 2d 328, 336 (1998). The Plaintiff from Marion sought damages for past and future lost income, past and future lost benefits, emotional distress and punitive damages. $3.6 million of the $4.2 million dollar award was for punitive damages.
– Brent R. Eames, Attorney
Extreme Makeover: Carpal Tunnel Edition
Monday, July 25th, 2011
One big target of the new workers’ compensation reform was recovery caps for repetitive trauma carpal tunnel cases. The changes arose out of a misplaced view that the State of Illinois had blindly approved too many carpal tunnel settlements made by state workers. Politically sensitive as they are, the Illinois Attorney General’s Office now seems to be either denying these claims outright or “investigating” them to no end. Private insurance carriers, who already disliked these claims, are getting even more aggressive due to the political climate. They sense blood in the water. All of this means that it is more and more likely your repetitive trauma carpal tunnel case will have to be tried.
We have noted in previous blogs the importance of letting your doctor know your work history. Given the political shift-of-the-weather on repetitive trauma cases, it is now more important than ever that your doctor has a full and accurate description of your work activities. Be as detailed and specific as possible. You do not want your attorney getting into a deposition only to have defense counsel ask your doctor whether he/she knows how often you do a specific activity per day, and have the doctor reply that he/she was never told that. The doctor’s credibility is being judged by the Arbitrator and if the Arbitrator thinks your doctor did not really understand your job, little weight will be given to the opinion that your condition is work-related.
In order to have the best chance at winning your case, your doctor needs to support your claim. In order for the Arbitrator to listen to your doctor, your doctor needs to fully understand the nature of your repetitive work. Tell the doctor everything or write it all out for him/her on paper. In the end, you need to make sure the doctor is on the same page as you in all aspects of your claim if you want the best chance for a successful outcome.
– Thomas M. Strow, Attorney
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