Articles Posted in Uncategorized

What to expect when talking to a Workers’ Compensation Attorney  

Hiring a dedicated and knowledgeable workers’ compensation attorney will increase your chance of obtaining the benefits you deserve under the Illinois Workers’ Compensation Act. An attorney will inform you of your rights under the law, will communicate with the insurance company on your behalf, will gather medical and vocational evidence, and will negotiate a settlement or represent you in a hearing at the conclusion of your claim.

During your initial consultation, an attorney will ask you a series of questions to determine whether or not he or she is able to represent you.  The following is a list of information the attorney may need to understand and assess your workers’ compensation claim.  Please be aware that because workers’ compensation claims are time sensitive, it is often beneficial to contact a workers’ compensation attorney as soon as possible, even if you do not yet have all of the information listed.

Social Security claims require medical evidence to prove disability. When we go to a hearing we need to know that there is medical evidence to prove your case. We have searched Social Security’s record. If there are missing items we make sure to order those records and admit them to the record. We have also read the records to make sure they prove that you are disabled. If your doctor says that you are able to work you cannot win your case. Your doctor needs to give specific restrictions that are supported by the medical records. For example, if you have an injured back, how much can you lift? Can you lift 20 lbs? 10 lbs, 5 lbs? Will your doctor say that you are able to perform heavy medium, light or sedentary duty? Are there any other issues such as the need to take a break or restrictions on bending? More details help Social Security understand why you claim to be disabled.

Depending on your age, education and other skills we may know what level of disability will qualify you for benefits. For example if you are 51 years old, have limited education and do not have transferable skills you will be disabled if you can only perform at the sedentary level. We can then ask your doctor if you are at that level. When your doctor writes back that you are at the sedentary level or puts that information in your record he or she is helping us prove your claim. Thank you doctor!

Reductions in benefits provided to injured workers under the Illinois Workers’ Compensation Act have been proposed by Governor Rauner as part of his Turn Around Agenda. As lawmakers in Illinois continue to deal with approving a state budget, addressing underfunded pension obligations for State workers, and the potential likelihood of an increase in taxes to address these problems, Governor Rauner has insisted that no deal will be struck without benefit reductions in the Illinois Workers’ Compensation Act. Opponents to the Governor’s pursuit of reductions in benefits, counter that reforms passed in 2011 have resulted in a decrease in costs to employers which have the cost of work injuries in Illinois moving in the right direction. Some argue insurance companies kept $2 billion in savings that should have been passed on to Illinois businesses.

The following provides an update on proposed legislation. Workers’ compensation laws protect both the injured worker and the employer. The injured worker should receive prompt quality medical care and pay for time off of work because of an injury and compensation for permanent injuries. Illinois employers are shielded from far more costly personal injury litigation along with having a voice in the injured workers’ medical care and rehabilitation. As many Illinois businesses anticipate reduced federal regulation and enhanced spending on improving the infrastructure and expansion of the workforce, fair workers’ compensation benefits need to be in place to protect injured workers at a fair price to Illinois businesses. The most significant changes proposed by the Governor are as follows:

• Causation

Since the day he took office in January 2015, Governor Bruce Rauner has waged an all-out war against unions and working people in the State of Illinois. Since taking office, Governor Rauner has followed in the footsteps of others like Scott Walker from Wisconsin, by doing everything in his power to dismantle unions and their ability to represent employees in this State.

Over the last two years, the Governor’s anti-union agenda has seen many battles on various fronts. In 2015, Governor Rauner filed a lawsuit against 27 public sector unions representing State employees, seeking to prohibit the unions from receiving fair payments from individuals who benefit from the representational services that the unions provide. The Governor’s lawsuit was quickly dismissed.

However, a subsequent suit was filed by two individuals, with the backing of certain conservative, anti-labor political action committees, seeking the exact same prohibition against public sector unions. The unions successfully defeated that second suit as well, but the Governor and his cronies refuse to give up their fight. That case is now on appeal at the Chicago-based 7th Circuit Court of Appeals. The Governor and his anti-union political backers have made it clear that they intend to take that case all the way to the United States Supreme Court.

The Supreme Court Decision of William Bremer v. The City of Rockford, 2016 IL 119889 filed on December 30, 2016 denied William Bremer, a City of Rockford firefighter’s claim for health insurance benefits under the Illinois Public Safety Employee Benefits Act (PSEBA) (820 ILCS 320/10(a) (West 2008). The Act provides the following:

(a) an employer who employs a full-time law enforcement, correctional or correctional probation officer, or firefighter, who, on or after the effective date of this Act suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer’s health insurance plan for the injured employee…. Bremer was awarded an occupational disease disability pension under Section 4-110.1 of the Pension Code (40 ILCS 5/4-110.1) (West 2004)), based on a Board finding that the preponderance of the medical evidence established that Bremer’s cardiomyopathy resulted from the performance of his duties as a firefighter. Subsequently, Bremer filed for his continuing health insurance benefits under Section 10 of PSEBA which The City of Rockford denied. Bremer prevailed in his Summary Judgment Motion in the Circuit Court of Winnebago County and the City of Rockford was ordered to pay benefits under PSEBA. The City of Rockford appealed and the Appellate Court reversed, denying benefits. The primary issue in the case was whether the phrase “catastrophic injury” in Section 10(a) is also synonymous with an injury resulting in an occupational disease disability pension under Section 4-110.1 of the Pension Code. (40 ILCS 5/4-110.1) (West 2008)). Bremer contended that an occupational disease disability pension awarded under Section 4-110.1 of the Pension Code is a line of duty disability pension because, by definition, it results from service as a firefighter and arises out of the course of employment. Bremer argued that his disability arose in the line of duty as a matter of law and is, therefore, a “catastrophic injury” within the meaning of Section 10(a) of PSEBA. The Supreme Court disagreed, noting that it had previously interpreted that the legislative history is such that the legislature intended the phrase “catastrophic injury” in Section 10(a) to be “synonymous with an injury resulting in a line of duty disability under Section 4-110 of the Pension Code.” What remains unanswered is if the legislature intended to limit benefits to recipients of a line of duty disability pension. Why would they have not used that phrase instead of “catastrophic injury” in Section 10(a)? Katz Friedman attorneys Richard K. Johnson and Frank J. Bertuca on behalf of the Illinois Trial Lawyers Association in a “friend of the court” brief, argued that the legislature’s interpretation of the phrase “catastrophic injury” must have intended more than just a line of duty disability pension and furthermore that any recipient of an occupational disease disability pension should be allowed an opportunity to establish a right to continuing health insurance coverage under PSEBA. Justice Kilbride, concurring in part and dissenting in part, stated the case should be remanded for further proceedings to give Plaintiff such an opportunity. Frank J. Bertuca commented, “I am thrilled that Justice Kilbride stood out from the majority recommending that Bremer should not be denied the opportunity to present his case. It just seems fundamentally unfair, when there is a chance that he could prove entitlement to coverage.“ Richard K. Johnson stated “the tone of this decision is that the legislature intended to provide less protection to firefighters disabled from heart disease, lung disease and cancer than firefighters injured in a single act of duty. I’m not so certain the legislature clearly intended to deny benefits to these injured firefighters and their families.”

Many of the motor vehicle crashes that we see on the news or in the courtroom involve tractor-trailers, but the vast majority of winter time crashes occur between passenger cars. For those of us who are not truck drivers, there are many lessons to learn to avoid accidents and to be safe during dangerous weather. Generally speaking, when driving in poor weather, truck drivers put themselves in a position ahead of time to maneuver a big rig around unpredictable drivers who usually have far less experience on winter roads. To do this, commercial drivers are taught to think defensively at all times. Being a defensive driver means that you need to leave a way out when other drivers make mistakes or when a driver notices trouble ahead.

Certainly, we all know that we must slow down on winter roads to prevent needless harm or death, but reducing speed cannot be overstated. Thus, it comes as no surprise that the first rule of winter driver safety is to slow down. When a truck driver is at fault in a winter collision, it is most often because the driver was going too fast even if the crash took place on icy roads. Safe truck drivers compensate for poor traction by slowing down. This includes taking off the cruise control when traveling on wintry roads. Everyone expects that there will be traffic delays during the winter, which means that no one should hesitate to reduce their speed even if it means arriving late for work or if a truck driver is unable to make an important delivery on time. Don’t feel that you’re letting anyone down by not meeting a scheduled appointment. Give yourself extra time when you get on the road in the winter by leaving earlier than usual. Most importantly, use solid judgment when driving during the winter. If the weather is so severe that you feel like you cannot safely operate your vehicle, simply get off the road until traffic conditions improve. This includes if you are too tired from driving in adverse weather to continue to operate your vehicle safely.

Besides slowing down, there are several other steps that professional drivers take to prevent collisions on our roads and protect the safety of others sharing the highway. The second important safety rule for all of us is to keep a safe following distance. It is important to remember that keeping a safe following distance requires more thought than it seems. For most of us, leaving several car lengths of room between our vehicles and the vehicles in front of us seems practical. However, given the size and substantial weight of tractor-trailers, many professional drivers keep up to ¼ of a mile of following distance while traveling on highways. As a rule of thumb, many truck drivers double or triple their following distance and maintain a 10 second following distance on slippery roads. These rules of thumb would serve all of us well when sharing the roads with others. Moreover, during snow showers that limit visibility, if someone is following the tail lights of the vehicle in front of their car, they are simply following too closely. Thus, never follow tail lights becomes part of the safe following distance rule. Furthermore, another part of the safe following distance rule is to never travel in a pack despite how convenient it may seem. Keep in mind that if the leader of a pack of vehicles makes a mistake, the vehicles behind it tend to make the same mistake, which is why we see so many pileups this time of year.

A number of medical studies suggest that Firefighters have a high rate of death from cardiovascular causes and that the most frequent cause of death among firefighters is heart disease rather than burns or smoke inhalation. A particular section, Section 6(f) of the Illinois Workers’ Compensation Act, expands coverage for Firefighters, EMTs and Paramedics with heart or respiratory disease or conditions. Section 6(f) of the Illinois Workers’ Compensation Act provides:

“Any condition or impairment of health of an employee employed as a Firefighter, Emergency Medical Technician (EMT) or Paramedic which results directly or indirectly from any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting in any disability (temporary, permanent, total or partial) to the employee shall be rebuttally presumed to arise out of and in the course of employees fire fighting, EMT or paramedic employment and further shall be rebutally presumed to be causally connected to the hazards or exposures of the employment. This presumption shall also apply to any hernia or hearing loss suffered by an employee employed as a Firefighter, EMT, or Paramedic, however, this presumption shall not apply to any employee who has been employed as a Firefighter, EMT or Paramedic for less than five years at the time he or she files an Application for Adjustment of Claim concerning this condition or impairment with the Illinois Workers’ Compensation Commission. The finding and decision of the Illinois Workers’ Compensation Commission under only the rebuttal of presumption provision of the subsection shall not be admissible or be deemed Res judicata in any disability claim under the Illinois Pension Code arising out of the same medical condition; however, this sentence makes no change to the law within Krohe v. City of Bloomington, 204 Ill. 2d 392.”

The Illinois Workers’ Compensation Commission has interpreted Section 6(f) as requiring the Petitioner to establish that the condition resulted directly or indirectly from the employment. In the case of Schaefer v. Village of Gurnee, 08 WC 8950, 11 I.W.C.C. 497, the Petitioner’s coronary artery disease was discovered following a regular department physical which subsequently disabled him from his duties as a Firefighter. Clearly, when a condition or disease is discovered following a routine physical examination, few would consider that workers’ compensation may apply. Firefighters, EMTs and Paramedics diagnosed with a condition or disease should not rely upon their own or any other non-lawyer’s interpretation of this law. They should get help from an experienced lawyer. 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 through the toll-free State of Illinois injury hotline at 1-800-444-1525. You can also visit us on the web at www.kfeej.com.