Nurse wins Workers’ Compensation Award for Parking Lot Injury

A recent Illinois Workers’ Compensation decision involving a State of Illinois worker, an icy/slippery parking lot and an authorized break awarded benefits to the injured worker. The facts are interesting and illustrative of the law in an area of confusion. The injured worker was a nurse working for the State of Illinois. She was wearing a walking boot as a consequence of a different injury. The nurse wanted to go outside to her car (which was in the employee parking lot) while on break. A co-worker warned the nurse that the weather conditions were very bad and there was ice and snow on the employee parking lot. Despite this warning, the nurse went out to her car and on the way back into work, she slipped and fell and injured her right arm. While the arbitrator denied benefits, the Illinois Workers’ Compensation Commission reversed and awarded the nurse benefits. The Commission reasoned the nurse proved her injury arose out of and in the course of employment.

The Commission stated that the nurse was on an authorized smoking break and although warned of the conditions of the parking lot, the injured nurse did not assume an unreasonable or unnecessary risk by going out to her car.

What does this decision mean for Illinois workers? If you are injured in the employee parking lot, a reasonable time before or after work or while on break, that accident may be compensable under Illinois law, entitling you to Workers’ Compensation weekly benefits, medical benefits and a settlement for permanent disability. This decision follows a long line of cases standing for this proposition.

When does a Flight Attendant become ‘on the job?’ What if I get injured before I even check in for the flight?!

Anyone who reads this blog regularly will know that one of the hardest things about a worker’s compensation claim is establishing that you had an accident in the first place and that this accident is compensable under the Illinois Workers’ Compensation Act.  We have been over this concept before but in order for an accident to be compensable under the Act it is not enough that you were “at work.”   You have to establish that the accident “arose out of” and “in the course of” your employment. One way of doing this is to show that you were at a ‘greater risk then the general public.’ This can get tricky when your job isn’t the typical clock in/clock out job, like that of a flight attendant.

A flight attendant’s job is unique.  Many flight attendants do not live in the city they typically fly from, for example, they may live in Colorado but be domiciled in Chicago.  They will commute by plane to their domicile.  Also flight attendants still have to go through security at the airport well before they have ever checked in for a flight.  All of this navigation, and making their way through airports, can be a prime way to become injured.

In a recent claim by a flight attendant before the Illinois Workers’ Compensation Commission, the Commission confirmed how the law applies in situations like this.  As with all workers’ compensation claims in Illinois, the flight attendant has to prove that their accident ‘arose out of” and “in the course of” their employment.  They also are considered a ‘traveling employee’ in many circumstances but in this particular case the flight attendant had not left her domicile yet.  She was injured while opening a large glass door to check into her flight.  She had not even checked in yet.  This door was very large and locked.  The only way to get through it was to enter a code into a touchpad, turn the handle and pull the door open all at once.  This had to be done while the flight attendant was holding her luggage and in her work attire.  While doing all of this, her ankle gave way and she twisted her lower back.

The Arbitrator found that the general public is not typically required to open heavy doors with a touch pad all while rolling luggage and in uniform.  He found that even though this flight attendant had not even checked in to begin work, she was performing an action that was “incidental” to her employment, i.e. checking in for her flight.  Thus, her accident was compensable under the Act.  The Commission agreed with this decision and affirmed it.

It is important to remember that even when you have not even started work yet you can still be injured in a manner that “arose out of” and “in the course of” your employment.  It is important to document all the details of your injury because even one that seems minor, i.e. using a touchpad while holding luggage, may make the difference in determining whether you are entitled to workers’ compensation benefits or you are not.

Notice of a Work Related Injury to the Employer

As many employers make clear, when you injure yourself at work you must let your employer know about the injury as soon as possible. Many employers have standards such as immediately or within 24 hours. The Illinois Workers’
Compensation Act requires that this notice to the employer be given within 45 days from the date the injury occurred. Failure to provide notice within this time can result in the barring of your claim. It is important to note here before we go to deep into this topic that while you do have 45 days to give notice, it is important for your case that you give notice as soon as possible as delay can have a negative impact on your case. Also, please remember that notice must be given to somebody in a managment position and can be oral or in writing.
This rule of 45 days notice seems easy when you are thinking about acute injuries. An acute injury is when an event occurs which causes the injury. An example would be a slip and fall. However, what happens when we are dealing with the other major type of injury, repetitive trauma? This type of injury occurs when there isn’t one event that causes the injury but doing the same movement over and over again eventually causes a breakdown and subsequent injury. Due to the very nature of this injury, there is no definitive date when the injury occurs. When does the 45 days start?!
There is a famous worker’s compensation case called Peoria Bellwood v. Industrial Commission (115 Ill. 2d 524) which helps us to determine when this time starts. The case found that the date is when the injury “manifests itself.” The case goes on to define “manifest itself” as when the fact of the injury and the causal relationship of this injury to the employment would have become plainly apparent to a reasonable person. What does that mean? Well it essentially means that when a normal person would realize that they have an injury and that injury is related to their work activities then they should give notice and begin the process of a worker’s compensation claim.
As you can guess, this definition can be interpreted in many different ways and depends on the individual facts of each case to determine when the date “manifests” itself. However, it is important. In a recent Workers’ Compensation Commission case, the injured worker began to develop numbness and tingling and pain in her hands and wrists while typing. She sought treatment with her doctor and ultimately underwent surgery. She did not report the injury as work related until approximately one month after her surgery. The Commission found that she did not give notice within the appropriate time and denied her claim. As with any issue in law, there are always exceptions or different outcomes with different facts but it is important to remember that you cannot keep your employer in the dark regarding your work injury If you have any questions about this issue or any issue regarding workers’ compensation, feel free to speak to us by using our no charge initial consultation offer. You can contact us at 312-263-6330 or the toll free State of Illinois injury hotline at 1-800-444-1525. Also, visit us on the web at www.kfeej.com

Record Personal Injury Verdict in DuPage County, Illinois

RECORD $4.1 MILLION VERDICT FOR KATZ FRIEDMAN CLIENT
 
This month a DuPage County Jury awarded $4.1 Million dollars to a 29 year old garage door serviceman who suffered a severly fractured femur and back injuries in a work-related accident.
 
Our team of lawyers also secured a significant workers’ compensation settlement including a full waiver of the employer’s lien on the third party recovery.
 
According to the Jury Verdict Reporter this verdict represents a record high in Illinois for a femur fracture and a record high in DuPage County for a nonmedical-malpractice, personal injury verdict for an individual.
 
Congratulations to the trial team! If you have any questions about workers’ compensation or personal injury, please contact us at 312-263-6330 or the toll free injury hotline at 1-800- 444- 1525. Visit us on the web at www.kfeej.com. We are here to help!
 

Cell Phones and Driving: New Illinois Laws!

There are three new statutes affecting cell phones and driving. As a service to our clients, we are taking this opportunity to advise you of these new laws. We are very conscious of health and safety. These new laws are designed to further the health, safety and privacy of the public.

The first new Act permits a driver in a construction or school one to use a cell phone in “voice operated” (this is different from “voice activated”) mode or by pressing a SINGLE button to initiate or terminate a voice communication. This includes using a headset. This Act is effective January 1, 2013. Use of a cell phone in these areas has previously been prohibited.

The second Act prohibits a driver from using a cell phone or video within 500 feet of an emergency scene. The Act exempts using a cell phone in the voice operated mode. This Act was effective July 20, 2012.

The third Act prohibits a driver from using a hand held cell phone or texting while driving a commercial motor vehicle. It does make some exceptions for using the phone in the voice operated mode. This Act is effective January 1, 2013.

Remember, be safe, not sorry. Distracted driving is now responsible for more motor vehicle accidents than alcohol use. Automobile accidents are far more common than you think. Jury members do not look kindly on distracted drivers who injure or kill innocent victims. Violations of the cell phone laws can be used as a way to prove negligence.

If you have been a victim of a distracted driver, please feel free to contact us for a free consultation. We have been representing the injured for more than sixty years. Please visit us on the web at www.kfeej.com

Your Right To Medical Treatment When Injured on the Job

The Illinois Workers’ Compensation Act allows an injured worker to select two chains of medical providers at the employer’s expense provided that the services are reasonable and necessary . To illustrate, an employee may choose to consult with Dr. X relating to a work connected injury. Dr. X may refer the employee to a specialist, Dr. Y, for further treatment. Because Dr. X referred the employee to a second medical provider, Dr. X and Dr. Y count as one choice under the Workers’ Compensation Act. Then, if the employee on his own, elects to consult Dr. Z, the employee has now exercised his second choice and therefore, must use Dr. X and his referrals or Dr. Z and his referrals. Any physician in the chain can refer the worker to any other specialist or medical provider without counting that provider as a new choice. If the employee elects to consult a third doctor or chain, it will be at the employee’s own expense – two “chains” of doctors are all that the employer is obligated to pay.

What happens if the employee treats with more than two chains of providers, with one of the medical providers giving only minimal treatment at minimal cost? May the worker insist that the company pay for the two expensive providers and the employee pay the other, less expensive, doctors? The answer is “No.”

The employer need only pay for the first two chains of medical providers. The employee cannot choose which of the physicians are to be considered his first and second physician choice. Thus, the employer does not have to pay for the bills of providers after the first two chains, even if the employee would not seek payment for some of the medical providers who had rendered earlier, less expensive, medical services. However, treatment in an emergency room does not count against an employee as a choice of a medical provider.

It is important that injured employees know their rights under the law, particularly as to the limitations imposed on the number of medical providers. The employee must be extremely careful in the selection of doctors consulted.

Nothing said here applies to medical providers chosen by the employer. Remember, an injured is not obligated to treat with a physician chosen by the employer. However, if your injury happened after September, 2011, the law changed. The employer has a right to select a Preferred Provider Program for the care and treatment of work injuries. If your employer has instituted a preferred provider program, that becomes your first choice. You may opt out of the PPP in writing. In that case, you are then limited to the choice of only one physician and one chain of referral for further treatment.

If you have questions, please visit us on the web at www.kfeej.com or telephone us at 312-263-6330 or use our downstate toll free injury hotline by calling 1-800-444-1525

Social Security Disability Benefits and Workers’ Compensation Settlements

We are often asked how Social Security Disability benefits are impacted by a workers’ compensation settlement. Many of our clients are concerned that they will lose their right to their social security disability benefits.
In fact, an experienced attorney may actually be able to increase your Social Security Disability benefits if you settle your workers’ compensation case. A skilled attorney would use what we call “Spread Language” to have your workers’ compensation settlement prorated over the remainder of your life expectancy. You would still receive your settlement money all at once, but for Social Security purposes the settlement would be considered as payment over the rest of your life. This is perfectly legal, however, the attorney handling your matters must understand how to properly word the workers’ compensation settlement document.

Remember that if you are receiving both Social Security Disability and workers’ compensation benefits, the Social Security Administration has the right to reduce the monthly amount that you receive in SS disability payments. Between workers’ compensation and Social Security Disability benefits, the Social Security Administration will allow you to collect 80% of your “Average Current Earnings.” Any combination of workers’ compensation and Social Security Disability benefits that exceeds 80% of your Average Current Earnings will be deducted from your Social Security Disability benefits. The Social Security Administration calculates your Average Current Earnings based on your wages in the years before your onset of Social Security Disability.

However, if you settle your workers’ compensation case you can often use that 80% Average Current Earnings threshold to your advantage, increasing your disability benefits.
To better understand increasing your Social Security Disability Benefits, look at the following example:
• You are a construction worker who has suffered a serious injury to your lower back
• Your lower back injury prevents you from lifting more than 10 pounds
• You are 58 years old and your employer cannot accommodate your restrictions
• Your Social Security Disability Average Current Earnings are $4,000.00 each month
• Your workers’ compensation benefits each month are $2,668.00
• You are eligible to receive $2,000.00 a month in Social Security Disability benefits
• Your monthly Social Security Disability benefits are being reduced to $532.00 each month
• Your workers’ compensation case settles for $250,000.00
• After attorney’s fees of 20% or $50,000, the settlement in your pocket is $200,000.00
• Your Life Expectancy is 24 years or 288 months (This information comes from the National Vital Statistics Report)
With an attorney knowledgeable in both workers’ compensation and Social Security Disability issues, your monthly Social Security Disability benefits could be increased from $532 to the your full eligibility amount of $2,000.00. This would give you an additional $17, 616.00 a year in your pocket.
How did the attorney increase your Social Security Disability benefits? By spreading your settlement of $200,000.00 by your life expectancy of 24 years or 288 months. The settlement of $200,000.00 can then be considered $694.44 each month in workers’ compensation benefits (288 x 694.44 = $200,000.00). Remember Social Security allows you to recover 80% of your Average Current Earnings of $4000.00 or $3,200.00. Your $2000.00 in Social Security Disability benefits added to your $694.44 in spread workers’ compensation benefits is still below the 80% threshold so there is no reduction.
While these calculations may appear simple, there are many potential pitfalls. If the workers’ compensation settlement is not spread, your Social Security Disability benefits could actually be reduced by a greater amount. Medicare’s interests must also be considered in any Workers’ Compensation settlement when you are Medicare eligible and in many cases money must be put aside to satisfy Medicare’s interests.

We always recommend using an experienced lawyer to guide you through this process.

Can my employer terminate me for filing a Workers’ Compensation Claim?

It is important to know that if you are hurt on the job, you have an absolute right to file a claim for benefits under the Illinois Workers’ Compensation Act. The injured worker should not fear a repercussion from the employer for exercising his rights under the law. In fact, the Illinois Workers’ Compensation Act Section 4(h)states: It shall be unlawful for any employer, insurance company or service or
adjustment company to interfere with, restrain or coerce an employee in
any manner whatsoever in the exercise of the rights or remedies granted
to him or her by this Act or to discriminate, attempt to discriminate, or
threaten to discriminate against an employee in any way because of his or
her exercise of the rights or remedies granted to him or her by this Act.
It shall be unlawful for any employer, individually or through any
insurance company or service or adjustment company, to discharge or to
threaten to discharge, or to refuse to rehire or recall to active service in a
suitable capacity an employee because of the exercise of his or her rights
or remedies granted to him or her by this Act.

This part of the Illinois Workers’ Compensation Act has been interpreted by the Illinois Supreme Court to mean that if an injured worker is fired for filing his workers’ compensation claim, the worker has a right to present his case to a jury and request money damages, including punitive damages against the employer. While it is rare for an employer to discharge a worker for filing a workers’ compensation claim, the Statute and the Illinois Supreme Court have provided a powerful remedy which acts as a deterrent to improper employer conduct.

We advise that in order to fully protect your rights under the Workers’ Compensation Act, you immediately file your claim with the Illinois Workers’ Compensation Commission. If you fail to file the claim, you may have given up your rights under the statutory provision cited above. The Court requires that the injured worker exercise his rights under the Workers’ Compensation law, not just as for benefits. This is where the advice of a lawyer familiar with Workers’ Compensation law is crucial. This jury trial cause of action is called “retaliatory discharge” and must be filed in a civil court, not at the Illinois Workers’ Compensation Commission. If you have questions, please visit our website: www.kfeej.com or telephone us for a free consultation, 312-263-6330 or call our downstate injury hotline, 1-800-444-1525.

Do I Need a Lawyer for My Social Security Disability Claim?

This is a question we receive quite frequently. The Social Security Administration does not require you to have an attorney represent you. In fact, you can represent yourself. However, many claimants find using an attorney to be very helpful in every aspect of the Social Security Disability process, from completing all the paperwork to presenting their case before the judge at the hearing.
Statistics show that a claimant who hires an attorney has a better chance of success before the Social Security Administration. A seasoned Social Security Disability attorney can guide you through the red tape and make sure the evidence supporting your disability is brought to the Social Security Administration’s attention.
It is our experience that one of the greatest hurdles in the Social Security Disability application process is simply that the government doesn’t ask the right questions. In many instances, an individual is clearly disabled or could be found disabled pursuant to the Vocational Medical Grids. But the application process doesn’t give the claimant the opportunity to explain their disability in a manner that would allow the Social Security Administration to find them disabled.
The situation becomes even more complicated for an unrepresented claimant should they receive a denial letter. The Social Security Administration will usually send a generic form letter which simply states:
You said you became disabled on August 31, 2006 because of: shoulder, hand and arm complications.
The medical evidence in the file shows that your condition does cause some restrictions in your ability to function. However, based on your description of your previous employment we have concluded that you are still able to do your past work.
An experienced Social Security Disability lawyer has the knowledge and expertise to refute this blanket denial. Often there is additional evidence which would prove that you could not return to your previous jobs or work any other jobs. In many instances there are also additional medical conditions which the Social Security Administration did not take into account.
Another obstacle that an unrepresented claimant faces is the many forms and examinations required by the Social Security Administration as part of the disability application process. Our clients frequently feel bombarded with all the paperwork. This is another instance where a knowledgeable attorney can provide valuable assistance.
Perhaps the most important time to have an attorney is at the hearing before the Administrative Law Judge (ALJ). At the hearing the judge will usually call a Vocational Expert (VE) to appear and to testify regarding jobs available in the national economy. Also, the judge will usually require a Medical Expert (ME), almost always a doctor, to testify regarding your medical condition.
After the Vocational Expert and Medical Expert (doctor) testify, the claimant would otherwise be expected to not only present evidence of their own disability, but also cross-examine the government witnesses. It is important to remember that the Vocational Expert and doctor testify routinely before the Social Security Administration. For many of these experts it is their sole or main source of income. Effectively cross-examining them is no small task. A skilled lawyer can point out additional information conveniently neglected by the government witnesses and present evidence about your medical condition and job limitations which can strengthen your case.
The Social Security Administration has experts on their side. Hiring an attorney gives you an expert on your side; someone who is familiar with the rules and regulations that will govern your case. A good attorney can tell your side of the story.

If you have questions about the Social Security Disability process, please call us at 1-800-555-1212. You may visit our website for further information: www.kfeej.com or www.theillinoisdisabilitylawyers.com.

Workers’ Compensation Temporary Total Disability and Social Security Disability

Can You Collect Both Social Security Disability and Temporary Total Disability Benefits?
Yes, in Illinois you can absolutely collect Social Security Disability and Temporary Total Disability benefits at the same time with no reduction of your workers’ compensation benefits. In fact, we encourage many of our clients to pursue both Social Security Disability and workers’ compensation cases concurrently.
If you were injured as a result of a work accident, it is quite common to file for both workers’ compensation benefits and Social Security Disability benefits. This is because your work-related injury may prevent you from returning to your previous job, and because of your age and lack of training to perform other work; you may be considered disabled under the Social Security Disability regulations (Grids).
However, if you are receiving Social Security Disability benefits and workers’ compensation Temporary Total Disability benefits at the same time, the Social Security Administration has the right to reduce the monthly amount that you receive in disability payments. Between workers’ compensation and Social Security Disability benefits, the Social Security Administration will allow you to collect 80% of your “Average Current Earnings.” Any combination of workers’ compensation and Social Security Disability benefits that exceeds 80% of your Average Current Earnings will be deducted from your Social Security Disability benefits.
Your Average Current Earnings is most easily calculated by taking the average of your five best earning years since 1950 or your single best earning year in the last five years. Your Average Current Earnings can also be found on the Annual Earnings Record you receive each year from the Social Security Administration. It should be noted that your Average Current Earnings is different from your Average Weekly Wage used in your workers’ compensation case.
To better understand the 80% threshold, look at the following example:
• You are a construction worker who has suffered a serious injury to your lower back
• Your lower back injury prevents you from lifting more than 10 pounds
• You are 58 years old and your employer cannot accommodate your restrictions
• Your Social Security Disability Average Current Earnings are $4,000.00 each month
• Your Temporary Total Disability benefits each month are $2,668.00
• You are eligible to receive $2,000.00 a month in Social Security Disability benefits
The total amount of benefits you would receive would be $4,668.00 ($2,000 SSDI + $2,668.00 TTD) is greater than 80% of the Average Current Earnings of $4,000.00 ($4,000.00 x.80 = $3,200.00). As a result, your monthly Social Security Disability benefits must be reduced to $532.00 ($3,200.00 – $2,668.00 = $532.00).
In Illinois your employer or their insurance carrier cannot reduce your workers’ compensation benefits simply because you are receiving Social Security Disability benefits. However, in some states the employer can reduce workers’ compensation benefits by what is called a “Reverse Off-Set Provision.” Some employers may also attempt to argue that you left the job market when you applied for Social Security Disability benefits. We always recommend using an experienced lawyer to guide you through this sometimes complicated process.