How do they calculate what my worker’s compensation benefits in Illinois? This makes no sense.

Under the Illinois Worker’s Compensation Act, you are entitled to three types of benefits.  These are payments related to missed time from work, medical treatment expenses, and permanency.  That sounds straightforward but how do you calculate the specific numbers?  It all starts with the Average Weekly Wage (AWW).  This number is the key to calculating all your benefits under the Act.

The Average Weekly Wage is at its simplest just what it sounds like, the average of what you earn per week.  It is based on the fifty-two (52) weeks prior to your injury.  The very simplest way to describe this is that from the date of your injury you count the 52 weeks prior to that date and add up all that you were paid during this time and divide by 52. That is your AWW.  However, of course, nothing is ever that simple.   First, some payments that you receive from your employer are not included in your AWW.  These include overtime and bonuses.  Even this exclusion is not simple as there are facts that may allow your overtime hours to be included in your AWW at the straight time rate or sometimes something that is called a bonus is actually payment for time worked and then would be included.   As you can see, this calculation can be hard.

Once your AWW is calculated, the other benefits are relatively easy to figure out.  When you are unable to work due to your injury and are still receiving treatment, you may be entitled to temporary total disability benefits.  These are the weekly checks you may have received if you’ve had an injury before.  This figure is calculated by taking your AWW and multiplying it by 66 2/3%.   Therefore as you can see it is very important that your AWW be calculated correctly.   There are many small issues that arise in this calculation but this is the basic formula for the calculation of your AWW.  A skilled worker’s compensation lawyer can help you with these issues.

If I suggest a referral doctor’s name to my current doctor does that break the chain of referral?

          Under the Illinois Worker’s Compensation Act, if there is no “Preferred Provider Program” in place with your employer, then you are entitled to two choices of doctor. What this really means is that you are entitled to have two “chains” of doctors.  As long as there is a referral from doctor to the next you stay within that chain. If you go outside these two choices then the Employer is no longer liable for your medical care even if it is related to the work injury.  So what happens in the instance when you know what doctor you want to see on referral and you suggest that name to your current treating doctor for his or her referral?  Does that mean it is not a referral anymore but another choice under the Act?

            The simple answer to that question is no.  As long as there is a referral to see the other doctor, then it will not count as another choice.   A recent case that was affirmed by the Appellate Court of Illinois expressed this idea that the law does not reference where the name of the referral doctor came from, the law simply requires that the treating doctor make the referral to that doctor.

            This is useful in the event that you are treating with your primary care doctor and she indicates that you need to see a specialist, let us say an orthopedist.  Let us also say that in the past you had seen an orthopedist for a complete unrelated condition, but you really liked and trusted this doctor.  The Worker’s Compensation Act allows you to suggest this doctor as your specialist to your primary care doctor and as long as she makes a referral to him or her you will not have exhausted a choice under the Act.

New 2012 Illinois Laws Affecting Working Men and Women

The Illinois State Legislature was busy this past year and there are 200 new laws going on the books for 2012. The summary of the new laws going into effect for 2012 which affect working men and women are summarized below. If you have any questions, please feel free to telephone any of our lawyers. We are here to help!

Abuse Coverage (HB 3358/PA 97-0343): Extends a mandate under the Illinois Insurance Code to the state group health insurance plan, county governments, school districts, and cities regarding victims of physical or sexual abuse, to ensure all insurance plans have similar provisions to cover abuse victims.

Background Information Sharing (HB 1240/PA 97-0248): Requires criminal background information on an employee that has been obtained by a school district within the last year to be shared, upon request, with any other school district.

Bus Drivers (HB 147/PA 97-0466): States that a non-CDL holder school bus driver will be subject to reasonable suspicion drug and alcohol testing that’s in conformance with federal regulations, except the results of the tests must be reported in a manner approved by the Secretary of State instead of on federal forms. Aligns the drug testing standard with that of the federal government because the state standards were more rigid than the federal standards creating a significant risk of false positive tests.

CDL Licensing (HB 1295/PA 97-0208): Brings Illinois into compliance with a federal law that requires Commercial Driver’s License (CDL) holders who must comply with the physical qualifications requirements of the Federal Motor Carrier Safety Administration to provide a current original copy of their medical examiner’s certificates to the State driver’s licensing agency before a CDL is issued, renewed, upgraded or transferred.

Co-Payment Scale (SB 1236/PA 97-0422): Bases child-care copayments for families who receive child care services or public assistance on family size and income, not on the number of children in care or the amount of services used. Also sets a sliding scale for co-payments, reflecting a lower percentage of income for the poorest families, and with a co-payment that gradually increase as family income increases.

Debt Collection (HB 1513/PA 97-0120): Allows employers to deduct wages without the employee’s consent in order to collect a debt owed to a municipality or to recoup excess money that was paid by a municipality in error.

Educational Training (SB 1578/PA 97-0525): Adds educational support personnel to those who can attend teacher’s workshops, or institutes (professional development/training days). States that the support personnel may be exempt from a workshop if it isn’t relevant to the work they do and it is not related to the health and safety of students. For Cook County only, when referring to the 4 days that may be used for teacher in-service workshops or professional development, adds that 2 days may be used as a teacher’s and educational support personnel workshop, when approved by the Regional Superintendent.

Equal Pay Act (SB 115/PA 97-0512): Provides for civil penalties of up to $5,000 when an employer interferes with an employee’s attempt to exercise a right granted to them by the Equal Pay Act.

First Aid Kits (HB 1573/PA 97-0374): Requires all classes of railroads to have first aid kits available when transporting railroad employees.

IMRF Pensions (HB 1471/PA 97-0319): Requires that the Illinois Municipal Retirement Fund calculation for the present value of a reserve annuity account for salary and service must provide a more accurate cost for each employer when an IMRF employee has worked under two or more IMRF employers.

Interest Calculation Formula (SB 1133/PA 97-0421): Establishes a formula for interest calculation on payday loans during the initial payment period. Specifically, states that when the first installment period is longer than the others, the amount of the finance charges applicable to the extra days cannot exceed $15.50 per $100 of the original principal balance divided by the number of days in a regularly scheduled installment period and multiplied by the number of extra days. Also clarifies that the term “consecutive days” does not include the date on which a consumer makes the final installment payment.

Jury Selection (HB 2066/PA 97-0034): Includes claimants for unemployment insurance in the lists used to create jury selection pools.

Large Truck Speed Limit (SB 1913/PA 97-0202): Extends the uniform speed limit that currently exists for Interstate highways to include four-lane divided highways. Provides that outside the counties of Cook, DuPage, Kane, Lake, McHenry and Will, the speed limit for trucks is uniform with cars, or 65 mph, on four lane divided highways.

Minimum Wage Penalties (HB 3237/PA 97-0571): Increases penalties for contractors, subcontractors and public body employees who do not comply with minimum wage requirements.

Oral Cancer Medications (HB 1825/PA 97-0198): Requires insurance plans that provide coverage for oral cancer medications and intravenous cancer medications to cover oral medications at the same benefit cost as intravenous medications.

Payday Loan Act Restrictions for Military (HB 3257/PA 97-0413): States that a creditor charging an annual interest rate greater than 36 percent to a member of the military or their dependants is in violation of the Payday Loan Reform Act.

Plumber Licensing (HB 1228/PA 97-0365): Outlines that only the state and the City of Chicago may license plumbers. States that in the event that the plumbing contractor’s registration is suspended or revoked, DFPR must notify the City of Chicago and any corresponding plumbing contractor’s license issued by the City of Chicago must also be suspended or revoked. Similarly, the City of Chicago must notify the Department of such suspensions or revocations within its jurisdiction.

Police/Fire Pension Dissolution (HB 144/PA 97-0099): Allows a municipality to dissolve a police or fire pension fund if an auditor has certified there are no liabilities, participants, or beneficiaries. There are currently a few downstate fire and police funds that are inactive but are still required to have an audit.

As stated above, there were 200 laws passed which are effective January 1, 2012. The laws mentioned above were those deemed to affect working men and women directly. Best wishes for a happy and healthy 2012. We look forward to serving you.
Katz, Friedman, Eagle, Eisenstein, Johnson and Bareck.

Can Your Employer Fire You For Facebook and Twitter Posts? – Maybe

Can  your employer file you for Facebook and Twitter post?  Section 7 of the National Labor Relations Act (NLRA) gives employees the right to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection.  This right includes communicating with other employees regarding terms and conditions of employment.  When the NLRA was enacted in 1935 social media sites such as Facebook and Twitter were unthinkable.  However, in today’s internet-driven world, the National Labor Relations Board (NLRB) has recognized the need to address how these new avenues of communication affect labor and employment law.

On August 18, 2011, The NLRB’s Office of the General Counsel issued a report concerning
how federal labor law will adapt to the widespread growth of social media websites like Facebook and Twitter. The report highlights a number of recent decisions involving  employees who were either disciplined or terminated from work for comments they posted on these sites. While the Board has not gone so far as to let employees say anything, it has ruled that some Facebook and Twitter comments are protected under Section 7 of the Act.

In one case, the Board found that an employer unlawfully discharged five employees who
posted comments on Facebook complaining about another employee who accused them
of poor job performance.  In that case, the employee, responding to criticism from a co-worker, posted on her personal Facebook page “A co-worker feels that we don’t help our clients enough. I about had it! My fellow co-workers how do u feel?” Four other employees then commented on this post, expressing their dissatisfaction with their co-worker.  The next day, all five were terminated for their comments.  The Board concluded that the discharges were unlawful because the employees’ postings were protected concerted activity.

The Board said activity is concerted when an employee acts with or on the authority of
other employees, and not solely by and on behalf of himself.  Here, the Board found that the Facebook discussion was a textbook example of concerted activity because it was an appeal by one employee to her co-workers for assistance.  Furthermore, the Facebook postings were
protected activity because they implicated working conditions. The Board said protected activity does not change simply because the statements were communicated over the Internet. The Board held that because the Facebook postings directly implicated terms and
conditions of employment and were, the conversation was concerted activity for mutual aid and protection under Section 7.

In another case, the Board considered whether an employer maintained an unlawful internet
and blogging policy and unlawfully terminated an employee for posting negative remarks about her supervisor on her Facebook page.  There, the Board recognized the well-established protection for employee protests of supervisors, and found that the employee did not lose that protection based on the place of the discussion.  Next, the Board considered the employer’s internet policy, which prohibited employees from making disparaging remarks when discussing the company or supervisors, and found this portion of the policy to be unlawful because it was too broad and could potentially limit protected Section 7 activity.

The Board, however, refused to extend protection to Facebook and Twitter posts in other
cases where the comments did not rise to the level of protected concerted activity.  In these cases, the Board considered the subject matter of the comment – was it regarding working
conditions or terms of employment; the parties involved in the discussion – was it a discussion amongst multiple employees or just one single employee griping; and e substance of the comment – was is vulgar, threatening or harassing toward other employees or Individuals?  In these cases, the Board held that Facebook and Twitter posts were not protected concerted activity where the comments did not concern terms or conditions of employment, where the comments were those of a single employee and not “concerted” activity, and where the comments were merely offensive remarks toward other individuals.

So what should we take from these recent developments?  First, we now know that employees’ conversations complaining about supervisors or working conditions is protected concerted activity regardless of whether it occurs on Facebook, at the water cooler, or in the factory parking lot.  Next, we can see that some employers will need to change their internet policies if those policies are overly broad or potentially prohibit Section 7 activity. Finally, employees must still be careful about what they say on the internet.  While certain comments and conversations will be protected, employees must still be careful because they could face discipline from their employers for comments that fall outside the scope of Section 7 protected concerted activity.

I’ve been released from care with permanent restrictions and I can’t go back to work in my previous job. Do I still get paid weekly checks?

            If your employer cannot accommodate your restrictions, then yes you would continue to be entitled to benefits under the Act.  These        benefits are called Maintenance benefits.  These are different than temporary total disability benefits, which are received while an injured worker is treating with a physician and unable to work due to his injury.  The requirements that an injured worker would need to meet and prove to an Arbitrator are different for these two different types of benefits even though they are paid at the same rate and in the same manner.

            An employer is required to provide a vocational rehabilitation plan to assist an injured worker to find a new position that is within their restrictions.  In order to continue to be entitled to maintenance benefits, the injured worker will have to cooperate in this program and look for work within their restrictions.  Failure to cooperate or to look for work could lead the injured worker to no longer be entitled to benefits.

            In a recent case, the Respondent for a variety of reasons did not provide vocational rehabilitation but the injured worker also did not
conduct any form of job search or provide any evidence that they were attempting to look for work.  The Commission found that the injured worker’s entitlement to maintenance benefit ended because he did not attempt to find a job within his restrictions.  The Commission was also concerned that he may have been able to perform his pre-injury job and he provided no evidence showing that he could not.  Therefore they found that his right to benefits ended.

            It is important for an injured worker who has been given permanent restrictions to know his or her rights and responsibilities in regards to job searches and benefits as failure to do what is required can cause a termination of benefits.

The Company is sending me to their doctor! Do I have to go?!

The short answer in Illinois is yes. Under the Illinois Workers’ Compensation Act, the Employee has the right to treat with a doctor of their choice.  However, the Employer can  have the injured worker evaluated by a doctor of their choice.  This evaluation is not for treatment and is  often called an Independent Medical Examination (IME).  However, it is important to remember, that  even though it is called an IME it is anything but independent.  This doctor was chosen by the insurance company to determine whether your injury is causally related to your employment, whether you are still in need of treatment and whether you can go  back to work.  This portion of the Act  is still part of the recently amended Workers’ Compensation Act.

An employee who fails to attend this examination can have their benefits terminated by the insurance company for failing to cooperate.  However, there are certain requirements that have to be met by the employer before the employee has to go.  First, there has to be adequate
notice before the examination.  Adequate notice is not a definite term but one that is determined by the circumstances.  If you are unable to attend for reasons that are unavoidable you must contact the insurance company, or whoever scheduled the examination, immediately.

Secondly, the Respondent has to provide PRIOR to the examination reasonable travel expenses.  In most cases this means mileage costs.
However in cases of flight attendants or other out-of-state employees, this may include flight costs, hotel expenses, and reasonable food costs.  This all must be provided before the exam is to take place or the employee does not have to attend.   The Commission recently confirmed in the
case of Wright v. Alpha School Bus that if the Employer refuses or fails to provide pre paid travel expenses then the injured worker can rightfully refuse to attend the examination.

This is part of the Workers’ Compensation system in the state of Illinois and the workers’ rights in regard to these examinations is important to know.  An experienced attorney can help you navigate this system.

Illinois Workers’ Compensation Reform is Here!

Today, September 1, 2011, the full force and effect of all the recent Statutory changes to the Illinois Workers’ Compensation Act becomes reality. For the most part, those changes that are substantive are in effect for those injuries on or after today’s date. The changes that are procedural affect even current claims. If you have a question about how the new law affects your current claim,feel free to telephone us @ 1-800-444-1525 if outside the Chicago area or 312-263-6330 within the Chicago area. If you are currently being represented, direct your calls to your attorney. In today’s Chicago Tribune, Katz, Friedman attorney Philip Bareck was quoted as follows: “We are primarily concerned that those hurt at work have full access to medical care and that they are properly compensated for their permanent injuries and loss of future earning capacity.” Way to go Phil! If you want to read the entire Tribune article, copy and paste this web address into your browser: http://www.chicagotribune.com/business/ct-biz-0901-workers-questions-20110901,0,1895990.story.

Katz, Friedman will be giving free seminars throughout the State of Illinois to advise working men and women about the changes to the Workers’ Compensation Act and how it affects injured workers. The first seminar will be held at the UAW Local 579 union hall in Tilton, Illinois on Monday, September 19th at 5:30 pm. This union hall is near Danville, Illinois. If you need directions, give us a call. The hall can hold 400 people, so make sure you get there early so you do not need to stand!

If it Happens at Work, it’s covered under the Illinois Workers’ Compensation Act, Right?! Not exactly!

Many people believe that if they are injured while on the employer’s premises than it is automatically a work related incident and covered under the Workers’ Compensation Act. However that is not the case.

In order to be entitled to benefits under the Workers’ Compensation Act in Illinois you must prove that the injury “arose out of” and “in the course of” your employment.  The Courts and Illinois Worker’s Compensation Commission have found that this means you, as the injured worker, have to establish that there is an “enhanced risk” due to the employment.

For example, in a recent case, a gentleman was injured when turned his head to the left.  He testified that he was not lifting anything, nor did he fall.  The Commission found that he “turned left” and noticed severe pain.   The Commission found that this was not an enhanced risk and found that he was not entitled to benefits under the Act.

It is important for injured employees to have an accurate understanding of how they were injured as the slightest detail can determine the compensability of a claim.  An experienced attorney can help an injured worker focus on the details that matter in determining whether the worker is entitled to benefits.

Workplace caused Hearing Loss- Is it compensable in Illinois?

The Illinois Workers’ Compensation Act has a specific provision that covers hearing loss caused by noise levels in the workplace. There are very specific rules on whether this loss is covered under the Act. The hearing loss can be caused over a long period of time. It can get very confusing and can be extremely difficulty to prove. Employers typically fight these cases due to the complexities and details, which must be established by the worker.

In order to prevail in a hearing loss claim in Illinois, the employee must prove the noise levels that he/she was exposed to and establish that he/she was exposed to the noise levels for an adequate time of day.  The hours per day that an employee must prove they were exposed to the noise levels depends on the decibel level of the noise.  Many large employers have noise surveys done form time to time in insure they are complying with OSHA regulations.  These noise surveys are important if an employee is going to establish the hearing loss is related to work related noise exposure.

Also the deficiencies in hearing must occur at the 1000, 2000, and 3000 frequency ranges.  Hearing loss outside these ranges is not considered in a workers’ compensation claim.  Whether the hearing loss is within these ranges must be determined by audiometric studies. Many employers conduct yearly or bi yearly hearing test on their employees.  These progressive studies can be important in showing the constant decrease in an employee’s hearing caused by the noise levels in the working environment.

Other evidence that is considered in a hearing loss case is whether the employer provided hearing protection and what type of hearing protection was provided.  This can be important in determining whether any hearing loss is covered under the Act.

As you can see, proving that hearing loss is compensable under the Illinois Workers’ Compensation Act can be difficult and extremely detailed.
An experienced attorney can help you navigate these waters and insure all the evidence that is available to you is used to prove your claim.

Illinois Court Rules That Ex-Employees Can Proceed With Retaliatory Discharge Claims

Illinois Court Rules That Ex-Employees Can Proceed With Retaliatory Discharge Claims

On July 21, 2011, the Illinois Appellate Court held that ex-employees of a seed company who reported to a former employee that seed bags weighed less than marked on the label are entitled to a trial on their retaliatory discharge claims.  Although there are advantages to disclosing information directly to a government or law enforcement agency,¹ the Court held that this is not required to establish a retaliatory discharge.

A successful retaliatory discharge case requires a former employee to prove the following: (1) the employment was terminated by the employer, (2) the discharge was in retaliation for an action by the employee, and (3) the discharge violates a clear mandate of public policy.  Typically, the first element is not at issue.  However, retaliatory actions that do not result in discharge are not covered by this remedy.

In this case, the employer is an agricultural supply business which grows, packages, and distributes soybean seeds for commercial agricultural use.  The Illinois Department of Agriculture investigated a complaint that the seed bags were underweight.  Although the complaint was not made by the employees who were discharged they claim that the employer believed that they blew the whistle.

The Court found that there was evidence of causation.  According to one of the employees, a supervisor stated that if the company found out that any of the employees complained to the State about underweight bags they would be fired.

The Court held that a mandate of public policy was involved because the Illinois Seed Law “creates a statutory scheme governing aspects of the sale of seed, including proper labeling and weighing.”  The mislabeling of the seed bags ran counter to that policy.

Unless the parties settle this wrongful termination case it will go to trial.

The case is Michael v. Precision Reliance Group, LLC, 2011 IL App 100089 (5^th Dist.