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In Illinois several appellate court cases had held that a petitioner in a workers compensation claim must show that he or she had been exposed to a risk of injury to a degree greater than the public in order to prove a compensable accident.  The Supreme Court in Illinois has now been corrected that rule by holding that an injury victim need only prove he or she got injured and work-related accident. The case is called McAllister vs Illinois Workers Compensation Commission.

This case applies to common everyday activities like standing from the kneeling position, bending, reaching, or twisting.  In older cases courts had ruled that petitioner had proved his job duties require him to engage in an activity to a greater degree than the general public, even in situations where the activity is directly related to the claimant’s job duties.

This case involves a sous chef who bent to help a co-worker find some carrots in the walk-in refrigerator.  When the petitioner bent down to find the carrots, he found felt a pop in his knee. He indicated on cross examination that his position in the floor was like the position he would be in if you were looking for something under his bed.

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 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 the same week, OSHA (Labor Department’s Occupational Safety and Health Administration) came out with a study that says that Workers Compensation systems are failing injured workers throughout the states.  OSHA says that injured workers’ incomes are, on average, nearly $31,000 lower over a decade than if they had not been injured.

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.”

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