By Philip Bareck
Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca
2013 US News & World Report Law Firm of the Year
Labor Law – Unions
Workers’ Compensation – Claimants
Counsel for the INA
Nurses treat injured patients on a daily basis, but what happens when the nurse is hurt on the job? What are the rights and benefits available to the injured nurse? Unfortunately, workplace injuries have become more common in the fast paced world we live in, especially in the medical community. Whether it is a neck or a back injury, or a repetitive trauma/overuse injury to hands/shoulders, nurses need to become more familiar with the Illinois workers’ compensation laws. To complicate matters, the laws have recently changed. The vast majority of these changes apply to accidents/injuries occurring on or after September 1, 2011. This article will address some of the workers’ compensation changes affecting nurses in Illinois.
First, a quick overview – The workers’ compensation law in Illinois provides for:
- payment for work-related medical expenses,
- lost time benefits, and
- compensation for the permanent disability following an accident. One of the significant 2011 changes involves the permanency recovery/settlement (last benefit).
For accidents occurring after September 1, 2011, the way to determine the permanency benefit has changed. When determining a nurse’s permanent partial disability/settlement, there are now five factors to be considered, to wit:
- the nurse’s age,
- the nurse’s future earning capacity,
- the nurse’s occupation/employment including his/her job duties,
- the nurse’s disability as noted in the treating medical records and
- the American Medical Association (AMA) impairment rating for the injury.
This new law indicates that no single factor is determinative in arriving at the permanent partial disability settlement. Rather, it is up to the Arbitrator and Workers’ Compensation Commission to determine how much weight is given to each factor in determining permanency. This analysis is completed on a case by case basis. If the hospital/employer obtains an impairment rating for the injury, it is important to remember that that you are not bound to that rating for your permanent disability recovery! Rather, arbitrators across the state have agreed that the impairment (which is normally less and in some cases significantly less than the disability percentage) is not the same as disability.
The American Medical Association “Guides to the Evaluation of Permanent Impairment” 6th Edition, makes a clear distinction between impairment and disability. Impairment is defined as a significant deviation, loss, or loss of use, of any body structure or body function in an individual with a health condition, disorder or disease. Disability, on the other hand, is an activity limitation and/or participation restrictions in an individual with a health condition, disorder or disease. It is the five factors mentioned above, which determines disability, not just the impairment rating. Recent Arbitrator and Workers’ Compensation Commission decisions have underscored this critical point. This distinction is crucial to understand and can have a significant impact on your recovery of a permanent partial disability settlement!
Also, the 2011 changes permit hospitals/employers to establish an approved, preferred provider program (PPP) for medical treatment. This is basically a network of physicians that the hospital/employer would obtain for medical treatment following an accident. You have the right to decline treating with these PPP doctors but if you do so, the PPP is considered your first choice/chain of medical providers. You can then start your own chain of medical treatment but that would be considered your second and last choice/chain. If the hospital/employer has not established a preferred provider plan, you would still have two separate choices/chains of doctors to choose from.
Another area of change pertains to carpal tunnel syndrome injuries resulting from repetitive activities/trauma. In these specific cases, the permanency award has been reduced on two fronts:
- the new law caps the permanent partial disability recovery at 30% loss of a hand no matter what the permanent partial disability would have been if the accident occurred before the changes and
- it reduces the value of the hand by 7.5% compared to other hand injuries.
The new law reads that the value of the permanent partial disability cannot exceed 15% loss of use of a hand, except where it is shown by clear and convincing evidence, and in that case the award cannot exceed 30% loss of use of the hand. Moreover, the statute lists the total loss of a hand at 205 weeks but in these repetitive trauma carpal tunnel syndrome cases, the law now reduces the total loss of use of a hand to 190 weeks reducing the value by 7.5% of the hand. In other words, carpal tunnel syndrome claims resulting from repetitive trauma activities are valued less compared to before the 2011 changes.
Finally, for years, an injured nurse who was temporarily and totally incapacitated from work has been and continues to be entitled to 66-2/3% of their wages paid on a weekly basis (referred to as time off benefits). In 2005, a provision called “temporary partial disability benefits” or “TPD/maintenance” was added to the statute. This provision pays benefits to the injured nurse who returns to a modified duty position earning less than what she/he was earning if employed in the full capacity of the job. This has been useful for you because your hospital may have downgraded many of you who were placed on light duty after surgery which created a wage loss. Under this provision, you have been entitled to two-thirds of the difference in pay between the average amount you would have been able to earn in the full performance of your duties as a nurse and the net amount you were earning in the modified job. The 2011 change has retained that provision but changes the computation from the net amount you are earning in the modified job to the gross amount you are earning in a modified job, thereafter, reducing the differential. You are still entitled to receive the differential if you are downgraded (pay reduced on light duty) but it will be a lesser amount.
Nurses deal with injuries on a daily basis. However, most nurses do not think about injuries to themselves until an accident occurs. Knowing your rights and benefits as the laws change is critical for each and every one of you. The old saying “knowledge is power” has never been more true than it is today.
If you have any questions concerning Workers’ Compensation, Personal Injury or Social Security disability, please feel free to contact Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca at 1-800-444-1525.
Philip A. Bareck
Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca
Protecting the Rights of Working People Since 1954
Counsel for the Illinois Nurses Association
77 W. Washington Street, 20th Floor
Chicago, IL 60602