Blog
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
The Fair Labor Standards Act: Show Me the Money!
Saturday, July 23rd, 2011
Does your boss expect you to do work before or after you punch-in on the time-clock? Have you been short-changed on overtime compensation, receiving less than one and one-half times your base rate of pay? This could apply even if you are a salaried employee. Are you not getting paid for mandatory training time? If you answered yes to any of these questions, then you may have a cause of action under the Fair Labor Standards Act.
Enforced by the United States Department of Labor or a private lawsuit in some situations, the Fair Labor Standards Act defines the obligations of employers regarding minimum wage pay, overtime pay, recordkeeping, and child labor. The Act applies regardless of your immigration status.
Illinois, with a minimum wage of $8.25, exceeds the federal minimum hourly rate.
In 2009, the Department of Labor announced it would hire hundreds of additional investigators to enforce the Fair Labor Standards Act. In particular, the Department has cracked down on ensuring the payment of overtime wages. Despite how clear the law is regarding payment for work performed, wage and hour violations continue.
– Morgan C. Klein, Attorney
Appellate Court Rules Against Plaintiff Who Signed Liability Release Prior to Bicycle Race
Tuesday, July 19th, 2011
Recently, in the decision Hellweg v. Special Events Management, et al., the First District Appellate Court held that a Plaintiff who signed a liability release prior to competing in a bicycle race could not sue the event’s organizer after he was injured during a collision with an unregistered bicycle rider. The Plaintiff had alleged that the event’s organizers did a negligent job of organizing the race and setting up security so that unregistered bicyclers were not prevented from entering the path of the “closed-course” race. Prior to the race, the Plaintiff had signed a liability waiver, which provided, in pertinent part:
“I ACKNOWLEDGE THAT BY SIGNING THIS DOCUMENT, I AM ASSUMING RISKS, AND AGREEING TO INDEMNIFY, NOT TO SUE AND RELEASE FROM LIABILITY THE ORGANIZERS OF THIS EVENT . . . AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS. THIS RELEASE IS A CONTRACT WITH LEGAL AND BINDING CONSEQUENCES AND IT APPLIES TO ALL RACES AND ACTIVITIES ENTERED AT THE EVENT REGARDLESS WHETHER OR NOT LISTED ABOVE. I HAVE READ IT CAREFULLY BEFORE SIGNING, AND I UNDERSTAND WHAT IT MEANS AND WHAT I AM AGREEING TO BY SIGNING”
In affirming the dismissal of the Plaintiff’s claim with prejudice, the Appellate Court focused on the language of the release itself to determine whether the language of the release encompassed the events which led to Plaintiff’s accident. The Court concluded that the release was manifestly “designed to encompass all claims against defendant[s] based on [their] negligence, even though the precise cause of the accident may have been extraordinary.”
The moral of the story? These liability releases are becoming more and more common in all aspects of life. When signing one of these releases, read before signing! You could be signing away your right to recover in the event of negligence.
– Brent R. Eames, Attorney
Justice May Be Blind, But Juries Aren’t: Why a Picture is Worth More Than a Thousand Words
Monday, July 11th, 2011
You’ve been injured in an auto accident. Badly. You look just terrible. But a year or two later your case gets to trial and you look fabulous. Which do you think the jury will pay attention to more? How you look now or how you say you looked then? Probably the former. You can tell the jury all you want about how severe your injuries were, but if you walk into court with no obvious signs of injury, the jury will likely discount what you say about your past pain and suffering.
That is, unless you can corroborate your testimony with photographs. When we get injured, one of the last things on our minds is taking pictures of ourselves. However, if you’ve been injured in an accident, you need to immediately begin documenting your injuries with photos. Keep track of when the photo is taken, the context of the photo, and who took it. In most cases, even though the judge will normally have discretion to admit or deny photographs of injured parties into evidence, the photos will likely be presented to the jury. They can be powerful demonstrative evidence of the pain and suffering you endured.
So, if you get injured, don’t think you can just speak your way to a favorable verdict. Take photos! Don’t miss your chance to help the jury truly see and understand what the world once looked like through your eyes.
– Thomas M. Strow, Attorney
Attention Police Officers and Firefighters Hurt on the Job!
Saturday, July 9th, 2011
A variety of benefits exist for police officers and firefighters hurt on the job. Of course you are well aware of potential pension disability benefits or a workers’ compensation claim, but did you know that you may be entitled to one year’s salary under the Public Employee Disability Act if you cannot work because you were hurt in the line of duty? Your employer may also be responsible for paying your health insurance premiums under the Public Safety Employee Benefits Act if you cannot return to your job. 
Federal law also offers benefits to police officers and firefighters. If your work injury as a public safety employee has caused you complete and permanent total disability rendering you incapable of any gainful employment, you may be eligible for a one-time financial award administered by the Department of Justice through the Police Office Safety Benefit Program.
Public safety employees hurt on the job, do not let the benefits to which you are entitled go unused!
– Morgan C. Klein, Attorney
Getting Medical Treatment When Your Case is Denied
Wednesday, July 6th, 2011
Your workers’ compensation case can be denied for many different reasons. Payment of medical bills and access to medical treatment is a priority to any injured worker and will not be covered if a case is denied. If you have group health insurance, a medical provider should submit any bills incurred to your group health insurance plan so that you can continue to treat. This does NOT mean you shouldn’t tell your doctor you were hurt at work. Sometimes a provider will require what’s call a “denial letter” which is a letter from the insurance company stating that your claim is denied before they will submit bills to your group health plan. Let your attorney know if your doctor requires such a letter and we can get that from the insurance company or the attorney representing the insurance company. If the amount of the medical bills is awarded after a trial, we will pay your group health insurance back what they have paid on your behalf.
Also, if your employer has a short term disability plan and your case is being denied and aren’t receiving weekly TTD benefits, you can still get weekly checks from an employer sponsored short term or long term disability plan. Getting such benefits will require paperwork to be filled out by your doctor stating why you cannot work and what treatment you are receiving. If you don’t know whether you have such a plan, contact your employer’s human resources department.
Things don’t move as quickly as we would like them to in the Court system, so use of your group health insurance plan and/or a short term disability plan is an excellent way to stay afloat why we get your case ready for trial.
– Jane M. Ryan, Attorney
“I just got hurt at work. What do I do?” A Few Quick Tips for the Injured Worker
Wednesday, June 29th, 2011
Some companies hold safety meetings and provide training for their employees to explain how to handle an injury that occurs at work but many do not. In these situations, if you are injured you may be unclear as to how exactly to handle your injury and the reporting process. The following are a few tips that will assist you in the event that you suffer a work injury and are not sure what to do.
1. Immediately report the injury. You should report any symptoms of pain and injury to your immediate supervisor. If he or she is not available, you should report the incident to the nearest supervisor or person of authority with the company and/or the human resources department if your company has one.
Many times this will result in the employer requiring you to fill out an accident report. You should precisely state exactly what happened to cause your injury including detailed aspects of your job. Sometimes there is not one specific incident that caused the pain, but rather the repeated or continuous tasks completed in one work day. For example, a worker who feels shoulder pain after lifting boxes all day. In those types of situations, it is important that you do not write or state to anyone that you “do not know” what caused your pain. Instead, you should explain the activities that you were doing over a period of time that resulted in the pain. If you are asked to complete a written accident report, you should ask for a copy of the report at the time that you complete it.
2. Take note of any witnesses. Keep track of any witnesses to your injury. If you are working with co-workers who you described the incident or pain to or who actually observed the incident causing the injury, be sure that you keep track of their names and positions. These co-workers may be helpful in the future if you proceed with a workers’ compensation claim.
If your injury is one that happened over the course of performing tasks over a day or several days such as my example of the worker lifting boxes, take note of any co-workers who were aware of the tasks that you were performing those days and who may have worked with you and noticed any symptoms or complaints that you had.
3. Seek medical attention. I am certainly not suggesting that you need to seek medical attention for every bump or bruise, but if you have any question as to whether you may have suffered an injury, it is best for you to seek medical treatment as close as possible to the injury. It becomes difficult if the injured worker waits several weeks or months before ever seeking medical treatment. In this type of situation, you should tend to follow the general phrase “it is better to be safe than sorry” and if you have any doubt you should at least see a doctor to verify that you haven’t suffered any type of injury which requires medical care.
It is very important that when you do seek medical attention, you give them a very detailed history of your job duties as well as which particular duties or incidents contributed to your injury or pain. Describe all of your symptoms to the medical providers and give an accurate history of any previous issues in the same area of the body. It is extremely important that any medical provider that you see is given a detailed and accurate history.
These are just a few tips and you do have certain rights regarding your choices of medical providers, your entitlement for lost time benefits, and other benefits. If you have been injured on the job and have questions about your rights, you should contact the Law Offices of Peter Ferracuti for a free consultation regarding your rights under the Illinois Workers’ Compensation Act.
– Jennifer L. Kiesewetter, Attorney
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