Articles Posted in Workers Compensation

The court in Steak and Shake vs the Worker’s Compensation Commission addressed what is now a common issue in politics. Groups in Illinois wish to limit liability for workers’ compensation claims by only allowing the case to be compensable if it is the “primary cause” of the condition. This naturally sounds reasonable to people in the public. Why shouldn’t the primary cause be the test?

What people fail to appreciate is that “primary cause” in workers’ compensation claims really means eliminating aggravations of pre-existing injuries as claims. The Steak and Shake case is it is a good example of why suing “primary cause” as a test is unreasonable to older claimants and eliminates legitimate claims involving pre-existing condition conditions.

In Steak and Shake vs. Illinois Worker’s Compensation Commission the petitioner was the manager for Steak and Shake. She was busing tables to keep customer flow moving. As she was wiping down the table she felt and heard a large pop in her right hand. She immediately felt excruciating pain that began in her thumb and radiated across her hand.

In Chlada vs Illinois Workers Compensation Commission the Workers Compensation Commission ruled that a person can get a wage loss differential and a permanent total claim.  The case involved two injuries.  The first injury resulted in the person being paid less than before the injury. After the second injury the worker could not work at all.

In Chlada the injured worker had an injury to his low back first, lifting beer as a beer truck driver. The worker got hurt again on October 23, 2003, when he hurt his neck working in the warehouse.  The worker filed two claims, one for each injury. He worked light duty until January 12, 2003, when his doctor took him off work because of his second injury. The worker had neck surgery on June 17, 2003.  The worker’s doctor imposed permanent restriction of no lifting over 58 pounds and only occasional overhead reaching on January 14, 2004.  The employer refused to take the worker back after the doctor imposed the restrictions.  Petitioner did an extensive job search of over 1,000 contacts, but he did find a job and did not work since the January 13, 2003 date.

The Commission ruled that his right to wage loss differential benefits began January 13, 2003 and ended April 22, 2004, after a remand. The Commission found the worker was permanently totally unable to work after that date.  The circuit court found the Commissions denial of benefits after April 22, 2004 was against the manifest weight of the evidence, and set aside the order, ordering wage differential ending January 13, 2003, “at which time PTD [Permanent Total Disability] benefits began.”

We had the honor of having George Patrick, a workers compensation lawyer from Indiana, on the radio on Saturday, March 14, 2015, Pi day.  This is especially interesting to me because I have heard so many people talk about the differences between the Illinois Worker’s Compensation system in the Indiana Workers Compensation System.  Some people believe that Illinois should save money by following in the footsteps of Indiana.

This interview followed the recent ProPublic/NPR report about how states are demolishing their workers compensation systems.  Judges have called the modern workers compensation systems “inhumane” according to ProPublica/NPR.

In worker’s compensation claims employees and employers typically put medical records of the petitioner and evidence. The doctors are often not usually called as witnesses.  Recent changes to the Worker’s Compensation Act provided for a simple method of entering records into evidence. Medical records are typically allowed into evidence if they are subpoenaed by a party. However, doctors’ notes that are prepared for litigation purposes are typically hearsay and not allowed.

In that context, the case entitled RG Construction Services vs the Illinois Worker’s Compensation Commission came up.  In RG Construction the petitioner injured his knee at work when he fell off the stilts he was using.  His lawyer wanted to put the records of his treating physician into evidence. The defense objected claiming hearsay and due process violations under the 14th amendment.

The court cited the Illinois Worker’s Compensation Act changes (820 ILCS 305/16) concerning medical reports.  Changes provide that reports and bills of medical providers are presumed true and correct. They are admissible “without further proof as evidence of the medical and surgical matters stated therein, but shall not be conclusive proof of such matters.” The act specifically says that “this provision does not apply reports prepared by treating providers use litigation.”

 
If the petitioner has two cases the Illinois Workers Compensation Commission can award both a permanent partial disability award and a wage loss differential award.

Go here to see a video of me discussing the case Deerfield case with TJ Hart on Let’s Talk Law.

In the case entitled Deerfield vs the Illinois Worker’s Compensation Commission the appellate court ruled that a petitioner who is injured twice at work can receive award for both permanent partial disability and wage loss. In Deerfield, both cases were consolidated because they both involve the same workplace and the same injured worker. The workplace (Respondent) tried to argue that Petitioner could only get either a wage loss differential or a permanent partial disability award. This is not a very well taken position in my opinion. The court rejected it completely.

Doctors who lie in depositions is a big problem in litigation. Many of them make hundreds of thousands if not millions doing defense medical exams. Unfortunately, their lies result in injured workers not being able to pay their weekly expenses to be able to support their families, despite the physicians oath that they will do no harm. It is a complete injustice to have doctors profiting by lying in order to deny legitimate claims.

In Bermejo v. New York City Health and Hospital Corporation, Dr. Katz testified that his examination of a injury victim, Manuel Bermejo, took 45 minutes and that his second exam took ten to twenty minutes. He also said he took numerous exams, which would have taken several minutes to conduct if he really did them. The lawyer for Mr. Bermejo asked if it was possible that it could have taken 2 or 3 minutes. Dr. Katz testified that “I don’t think that’s possible.” Unbeknownst to Dr. Katz the interview had been recorded. The video revealed that he spent 1 minute and 56 seconds on his examination. He did not perform all the exams he said he performed. The underlying case involved a bad ankle fracture. The victim had a fusion of the ankle joint as well as a shoulder injury which required surgery. A group known as IME Watchdog averaged his exam lengths. He averaged 4 minutes and 10 seconds per exam.

Judge Duane Hart sanctioned the defense firms involved for $10,000.00 each. The judge indicated that he wanted to sanction Dr. Katz and the insurance carrier. Because they were not parties to the lawsuit he could not sanction them. Justice Hart said, “You can probably hear my teeth grinding.”, because he was so mad at Dr. Katz and the insurance company. The judge later vacated the sanctions against the defense firm because he could not find that the defense firm knew about the fraud.

In United Airlines, Inc. v. Illinois Workers’ Compensation Commission the Illinois Workers’ Compensation Commission gave the petitioner weekly wage differential payment of $277.06. The Workers’ Compensation Commission indicated that the payments should continue the duration of the disability he suffered as a consequence of his employment. In this case the arbitrator had ruled that the wage differential benefit should end effective April13, 2018. The arbitrator had found that United Airlines had proved that the claimant will be earning more in a new job than if he had remained a ramp service worker (old job). The arbitrator concluded that he could fairly determine claimant’s pay without guessing or speculating based on the collective bargaining agreements between respondent and petitioner. The Commission adopted the ruling of arbitrator accept that it ordered the wage differential to continue during the duration of the disability. The trial court reversed this decision. It agreed with the arbitrator’s decision.

The Appellate Court in United Airlines concluded the Commission was right. The trial court had reversed the Commission and used the arbitrator’s decision.

The court indicated that, while the act may not be perfect, it does not provide many methods by which to correct errors in the earning capacity and earning proved by the employee. Instead, “the award must be calculated as of the date of the arbitration hearing.”

In Mlynarczyk v. Illinois Workers’ Compensation Commission the petitioner was getting into her car after a break, when she slipped and fell. The arbitrator ruled that she was a traveling employee, and therefore entitled to workers’ compensation benefits. Then Illinois Workers’ Compensation Commission reversed that finding and held that she was not entitled to compensation. The trial court confirmed the decision of the Workers’ Compensation Commission. The Appellate Court the reversed the Workers’ Compensation Commission.

In this case the claimant and her husband, Edward, were hired by employer to clean houses, churches, and offices. They were paid by the job. They drove the workplace’s employees to and from job sites. Edward drove. He used a minivan provided by the employer.

On the date of the accident, the claimant had driven to clean a church. After cleaning it she cleaned 2 homes. Claimant took a 90 minute lunch break, which was significantly longer than was allowed. She did not make money while she was eating. Later that day, after the break, Edward and the claimant were going back to the minivan. Edward had warmed it up. The claimant left her house to return to work. She testified that the ground was covered with snow. As she walked around the rear-end of the minivan, she slipped and fell. She testified this happened on a public sidewalk leading from the house to the driveway.

A worker is entitled to all related medical in the future, so long as they do not close out medical. The Illinois Workers’ Compensation Act (8A) says that an employer has to pay for “all the necessary first-aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter”. This was demonstrated in the recent case Dye v. Illinois Workers’ Compensation Commission.

In Dye the petitioner had a non-contested injury. She bumped her head. As a result she had headaches for some time and a small bump on her forehead. There was no fracture, but she was diagnosed with closed head trauma, a concussion, and an abrasion to her forehead. She did not treat for two years. Then she went back to a doctor. The arbitrator concluded that this doctor was the third doctor. This would have been out of the two physician rule which limits a petitioner’s medical to two doctors and the referral chains.

The commission reversed that finding holding that doctor worked with the same group as the other doctor the petitioner had treated with. Accordingly, the treatment with that doctor did not violate the two physician rule. However, the commission ruled that it was not clear whether there was observable disfigurement.

In Venture-Newberg Perini Stone and Webster v. Illinois Workers’ Compensation Commission, the injury victim appealed the decision of the Sangamon County court. The facts are close, and probably could have gone either way at the commission. In one sense, they did go both ways, with the arbitrator ruling against the victim and the commission ruling in his favor.

The claimant was a fifty year old pipe-fitter who lived in Springfield, Illinois. He was a Union member with the Plumbers & Pipe-fitter Union, Local 137. As a Union member he would bid for his job. The respondent was a contractor that was hired to perform maintenance work in Cordova, Illinois, which is between 200 to 250 miles away from Springfield, but in the range of the pipe-fitters. The positions at the Cordova Plant were temporary and expected to last a few weeks.

The claimant and his friend reported to work. The two men spent the night at a hotel which was located about thirty miles from his job site. The men were scheduled to begin work at 7:00 in the morning, so they got up at 6:00 to drive to the job site. The claimant was a passenger in the car, driven by his friend, which skidded on a patch of ice. The claimant was seriously injured in the car accident.