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I write this Blog mostly for people who interested in law, especially injury claims. I do a radio show on legal issues Saturday at Noon. If you want to hire a lawyer, call me at 217-789-1977 or email me.

Permanent total disability in Illinois worker’s compensation claims mean that a person is entitled to total disability for life.  If someone is a permanent total they are entitled to two-thirds of their average weekly wage for life.  This is much like temporary total disability, but it is permanent.  Many people confuse total permanent disability with the designation of the “Person as A Whole”, which is five-hundred weeks of disability.  Five-hundred weeks of disability is 9.6 years; whereas, permanent total disability lasts for an injured worker’s life.

There are three ways to get a permanent total disability.  First there is what they call a statutory permanent total disability, which is found at Section E 18 of the Act. The statutory permanent total applies when a victim loses two limbs or both eyes.  If a person loses these body parts, they’re entitled to permanent total disability whether they can work or not.

The other types of permanent total disability require that the injury victim prove that they cannot work.  The victim can present medical evidence supporting a claim of total disability that a person is unable to work.

In Illinois Worker’s Compensations victims are entitled to two doctors and their referral chains. When we get cases in, often workers have already used one of their choices. We have had many people come in who have been referred to a doctor of the employer’s choice. When the employer does this they often misrepresent or suggest to the worker that they are required to go to these particular doctors. The selected doctor is often pro insurance company and not very friendly to injury victims.

This selection can have a huge impact on a person’s case by the time the case is over. Selecting a good doctor, from the standpoint of medical ability, and the from the standpoint of insurance bias, is very important to a person’s case.

Illinois law protects injury victims by having the two-doctor rule. Even if an employer tells a worker to see the company doctor or an occupational doctor, the worker still has a right to another group of doctors.

The third district court of appeals made an interesting decision concerning inter-spousal immunity. In Hand versus Hand, the parties were coming back from a vacation in Florida. In Indiana, they were involved in a one car accident where William was driving. Patricia, his wife got hurt. They filed suit in Illinois, where they lived.

Indiana has a statute which says that a person cannot sue their spouse for personal injury involving the operation motor vehicle accident. Illinois law does not have such a law. In Illinois spouses can sue one another. This is obviously a suit to get the insurance money.

The defendant, probably the insurance company, asked the court to dismiss the case because of the Indiana law. The trial court allowed the motion to dismiss, applied Indiana law, and dismissed the plaintiff’s appeal.

Illinois law permits a plaintiff to dismiss his or her case and refile it later. Typically, plaintiff, often because they are missing a witness or have some other fatal flaw in their case, dismisses the case without prejudice. The plaintiff then has a year to refile the case. This is especially useful if you are missing a witness who cannot be found, but the judge will not continue the case.

This came up in a medical malpractice case entitled Freeman vs. Crays. In Freeman the plaintiff had hired a primary care doctor to testify that the defendant in the case should have referred plaintiff’s decedent to a cardiologist. The plaintiff did not hire a cardiologist to testify about what might have happened after the plaintiff’s decedent got cardiologist. In other words, it was unclear whether a referral to a cardiologist would have likely saved plaintiff’s decedent. It was also unclear what the likelihood was.

Right before trial the defense asked for directed findings because the plaintiff could not prove causation. The trial court that without a cardiologist plaintiff could not win, so plaintiff dismissed and refiled.

I had a great guest on the air on December 23, 2017. The podcast his here. I went to a seminar at the Illinois Trial Lawyers Association on medical malpractice to keep up my continuing legal education. One of the speakers was a former president of the Illinois Trial Lawyers Association, Pete Flowers. He is one of the name partners in Meyers and Flowers. They handle all sorts of cases, including medical neglect, and a fair amount of medical product liability, and other things.

As he got up to speak he was introduced as having settled a case for $1 billion. After the seminar, I talked to Pete in the bar; I know him through my association and work on the board of managers of the Illinois Trial Lawyers Association. He told me that the speaker had made a mistake. He had 3 cases that settled for a billion dollars. I was fascinated. Billion-dollar settlements are a rare thing. To have one is remarkable, to have three is really striking. So, I asked Pete to be on the air.

The first case that we talked about in the air was a train wreck case. I had never heard of the Lac – Megantic rail disaster. Peter explained that the disaster was a Canadian train wreck. The train was carrying the fracked oil, which is highly flammable. The two people who were operating the train both left the train, but failed to put the brakes on properly. As you might imagine, the train began rolling. It rolled 7 miles before it came to be town of Lac – Megantic, a small town with about 6,000 people in it. The train jumped the tracks, spilled oil through the lake, and basically blew up the town. Just short of 50 people died. Canadian law caps noneconomic damages at somewhere in the $250,000 to $326,000 range. Pete filed suit trying to get jurisdiction in Chicago, the train went through a great deal of United States and the defendant was located in Chicago. He was successful. He managed to get much more than the low Canadian cap for the loved ones of the victims who died.

The courts in Dukich vs.Illinois Worker’s Compensation Commission recently misapplied, in my opinion, the law, as it applies to falls on premises. The losses previously been that wherever there is a fall on premises, so long as it arises from a defect, like snow, or ice, that the fall is compensable. This often occurs as people are coming to and going from work. Dukich acknowledges these cases but makes a strange distinction. The worker was going to lunch when she fell in a parking lot that was wet from rain. The arbitrator awarded benefits. The Worker’s Compensation commission reversed the finding of the arbitrator and denied benefits. The appellate court affirmed the Worker’s Compensation Commission. The appellate court questioned whether the rain was the sole reason for the fall, suggesting that the claimant’s shoes might have had something to do with it.

The court found that work did not increase the risk the plaintiff would fall. This is questionable finding. The plaintiff would not have been at the worksite which was wet had it not been for work. While it is possible the plaintiff would have gotten wet somewhere else, he would not have been forced to do so by his employer.

The court distinguishes falls on ice and snow from water caused by rain. This is not a reasonable distinction. Both ice and water are the same compound. One is a little more slippery than the other, but that is all. Both fall from the sky and land on an employer’s property, increasing the risk that people get hurt.

Claim Splitting

The appellate court addressed claims splitting in Dinerstein vs. Evanston Athletic Clubs, Inc. In Dinerstein the plaintiff filed suit involving an injury at a health club. The injury occurred when plaintiff was climbing a rock-climbing wall and fell. Plaintiff filed suit alleging negligence, willful or wanton misconduct, and loss of consortium.

Before climbing the wall plaintiff signed a release which indicated that plaintiff would not sue defendant for negligence. The court granted a motion to dismiss the negligence counts based on that agreement. The court then refused to allow an appeal of that particular issue pending the resolution of trial, denied the motion to reconsider, and continue the case on the other two counts.

Government entities are generally allowed immunity on many torts. This makes filing suit against a county or municipal government difficult. An example of that is Monson vs. City of Danville.

In Monson the plaintiff fell on property owned by the City of Danville. She had left a store in the downtown district and was walking to her car when she walked into an inch of water that had formed on the side-walk by land. As she walked to the water she felt her left shoe strike something which caused her to fall. She suffered injuries for which she sued the city. Her injury occurred on December 7, 2012.

The city’s superintendent of downtown services was responsible for maintaining the sidewalks. She walked the downtown district and painted places she believed required repair. After that the city’s engineer toured the area to discuss what needs to be done to the sidewalks. This occurred a year before the injury in 2011.

HR 1215 advancing through the house, the subject of medical neglect to come up again. HR 15 would limit noneconomic damages to $250,000 on medical neglect claims throughout the country. This would affect states’ rights to decide their own law about medical liability by taking away the right to make a decision. The bill is call the Protecting Access to Care Act of 2017. Always remember, whenever you read the title of a bill, it does the opposite of what you might suggest. This bill protects medical providers from their bad actions.

With the radio show a couple of weeks ago we had some spirited debate about the issue. A younger medical intern had questions and we had a really good discussion about the issues. After that, an older doctor called up to was very pro-tort reform. He argued that there is too much defensive medicine and so the government should cap damages in medical neglect suits. He argued that there is some evidence that 85 billion could be saved by capping defensive medicine, as if capping damages will suddenly get rid of all defensive medicine.  Here is a link to the podcast.

There are a couple of things I would say in response to the older gentleman. Concerning defensive medicine, the New England Journal of Medicine says caps cause little effect on defensive medicine.   He also argued that many people are sued when they should not be. Presumably his friends have told him that they had been sued in cases that lack merit. I have no doubt many doctors say such things regularly. Howver, Illinois does have a certificate of merit for medical neglect claims which requires a doctor to certify that there is malpractice before the suit can proceed.

In Barry v St Mary’s Hospital the Plaintiff treated at Defendant – St Mary’s – for injuries he sustained in a car wreck. The defendant asserted 3 liens against the Plaintiff’s personal injury claim which he had against a third party who was not involved in this case. The defendant eventually submitted two of the three bills to Plaintiff’s health insurance.  The third remained a lien on the Plaintiff’s personal injury case.

Plaintiff filed suit against St Mary’s claiming several things, including consumer fraud, third party beneficiary, and breach of contract. In this lawsuit, the plaintiff claimed that the defendant must submit the medical bills to his health insurer. Refusal to do that was breach of contract and tortious.

The court rejected the Plaintiff’s claim.  It held that neither the Lien Act or any contract required the medical provider to submit bills to the health insurer. It could maintain its lien against the case and refuse to bill the health insurer. Claims for breach of contract and tort could not lie.