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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
