Blog
Walking Softly and Carrying No Stick
Friday, April 20th, 2012
The Illinois Appellate Court, Workers’ Compensation division, recently issued another head-scratching opinion. The Court held in a 3-2 decision that an employer cannot be penalized monetarily under Section 19(k) of the Illinois Workers’ Compensation Act (the part which provides “penalties” for an unreasonable delay in providing benefits) if it delays authorization for medical treatment needed by the injured worker. That is to say, both the majority and dissenting justices assumed for the sake of argument the Act required the employer to pre-authorize treatment. But what happens then if the employer simply decides to drag its feet and unreasonably delays giving that authorization? According to the Majority Opinion, nothing. The employer will never be punished or out a single extra cent for the delay.
It’s like saying you are required to pay your taxes but then having nothing happen to you if you don’t. A basic principle of Introductory Economics is that people respond to incentives. If there is no punishment for delaying treatment – if there is no disincentive to behave unfairly – what are we likely to see more of by the employer? Delays in treatment.
Let’s hope this is one of the rare workers’ compensation cases the Illinois Supreme Court reviews. You can read a copy of the decision here:
http://www.state.il.us/court/Opinions/WorkersComp/2012/2110426WC.pdf
– Thomas M. Strow, Attorney
The Shoulder Goes the Way of Pluto
Friday, March 2nd, 2012
For many of us, it was a sad day when we learned our solar system only had eight classical planets instead of the nine we grew up with. Pluto, that distant world discovered in 1930 by local Streator-born astronomer Clyde Tombaugh, had been demoted by the International Astronomical Union. Pluto itself did not change, but the definition of a planet did, and years of accepted practice were overturned.
Something similar happened recently with the Illinois Appellate Court panel that handles workers’ compensation appeals. For years and years, if a worker had an injury to his or her shoulder it was classified as an “arm” injury for purposes of calculating permanent partial disability. However, in the case before it, the Appellate Court considered what the definition of an “arm” really is. In a decision that will have a big impact for anyone with a shoulder injury (rotator cuff, etc.), the Appellate Court found that the shoulder was not actually part of the arm. Rather, statutorily, it was part of the “person-as-a-whole.” And in one fell swoop, the Appellate Court upended years of Illinois workers’ compensation practice.
Just like Pluto, the powers that be have decided that what we thought we knew is not what we know. All we know is what we think we know until someone tells us otherwise.
You can find a text copy of the Appellate Court’s decision here:
http://www.state.il.us/court/Opinions/WorkersComp/2012/3110077WC.pdf
– Thomas M. Strow, Attorney
Importance of Photos
Friday, February 24th, 2012
The saying, “a picture is worth a thousand words” is very true in the situation an automobile accident. Photos of the crash scene, the vehicles involved and the injuries to the people involved are very important to maximizing an injured accident victim’s recovery.
The scene of an automobile accident can be very chaotic and you may not be in a condition to take photos of the scene and the vehicles involved, but if you can get photos of the scene and the vehicles then get them. Today all cell phones are capable of taking photos and most are capable of taking video, so use your phones to your benefit.
If you are unable to get photos of the scene of the crash and the vehicles involved at the scene, make sure you take photos of the damage to the vehicles later. If it is your vehicle that was damaged in the accident, take photos of it once you get home. If your vehicle is towed go to the repair shop and take photos. Also, you can go back to the scene of the accident later and take photos of the roadway and/or intersection where the accident occurred.
Just as important as photos of the scene and the vehicles involved are photos of your injuries. If you suffer cuts or bruises from the accident take photos of those. If you are in a hospital bed hooked up to all sorts of machines, get photos of that. If you cannot take the photos yourself, then have someone else take them for you. Photos should also be taken to document any scars you may have from the accident.
You can try and explain the scene of the accident, the damage to the vehicles or the injuries to your body but it is much better just to show a photo.
– Julie L. Ajster, Attorney
Consistency in Medical Treatment
Tuesday, February 14th, 2012
Whether you have been injured in a work accident, an auto accident or in any other manner in which you have a claim for your injuries it is very important to be consistent with your medical treatment.
You should receive medical treatment as soon after the accident or injury as possible. Do not wait days or weeks after an accident or injury to seek medical attention. You must get to a hospital, your family doctor or another medical professional right away.
Once you receive your initial treatment, you must follow up with additional treatment. If the emergency room tells you to follow up with your family doctor or occupational health, then follow up. Make an appointment to see your family doctor or whomever else you are told to follow up with within a few days after the emergency room.
If your family doctor orders testing such as x-rays or an MRI, get those done as soon as your doctor orders them or at least within a week after they are ordered.
If your doctor refers you to physical therapy, or to another doctor, then make sure you get to therapy or the specialist and take the first available date.
If you have long periods of time when you do not receive any treatment those are called “gaps in treatment”. If you have “gaps in treatment”, then the argument can be made that you must not have been in that much pain or must not have been having any physical problems or else you would have been receiving treatment.
You cannot just say you are in pain or having problems, it must be documented in your medical records.
– Julie L. Ajster, Attorney
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
Next Page »
