What Happens If I Am Injured at Work But Medicare or Insurance Pays the Bill?

Under the Illinois Workers’ Compensation Act, if you are injured on the job your employer is required to pay related medical bills. According to section 8(a) of the Act, the employer has to pay the lesser of the healthcare providers actual charges or the amount set out in the Worker’s Compensation fee schedule in effect at the time the medical care was provided. If you seek medical care for a work-related injury, tell your health care provider that your injury should be covered by Workers’ Compensation.

When you go to see a health care provider for a work injury, make sure you give them the workers’ compensation information and your health insurance information. Your employer may agree that your injury is covered by the Workers’ Compensation Act and pay those medical bills directly. On the other hand, if the employer denies that your injury arose out of and in the course of employment, the health care provider will be able to bill your health insurer, including Medicare.

In that case, if you and your lawyer prove that your injury arose out of and in the course of your employment, the workers’ compensation insurance company has to reimburse any health insurance plan provided by the employer. If your health insurance is provided by someone other than your employer, the workers’ compensation insurance company can work with you and your lawyer to make sure your bills are paid and the health insurance company gets appropriately reimbursed.

Finally, if you are a Medicare recipient, the workers’ compensation insurance company is obligated, under Federal Law, to reimburse any and all related payments made by Medicare.

Do Pre-Existing Conditions Affect My Recovery?

If you sustained an injury at work, your employer or its insurance company cannot deny you workers’ compensation benefits based solely on a pre-existing condition.

If you had a pre-existing condition and a work injury contributed to, aggravated, or exacerbated that condition, then your injury is compensable under the Illinois Workers’ Compensation Act.

If the work accident makes your pre-existing condition worse, then you may be entitled to benefits for care and treatment of that condition and disability payments while you are off work.

If your work accident aggravates or exacerbates the condition and as a result you require treatment that you otherwise would not have needed, then your treatment must be provided by the employer, and the employer must also compensate you for medically necessary lost time.

     Pre-existing conditions also raise problems in injury cases that are not work-related. Evidence of pre-existing conditions may be relevant in determining the cause and extent of your injury and damages. In a civil case, like a car accident or premises liability case, evidence of prior injuries can be relevant to show that a condition was not caused by the accident. However, evidence of that pre-existing condition must relate specifically to the injury claimed; a pre-existing condition will not be considered unless there is evidence of a causal connection between the pre-existing condition and the current injury.

If you feel that an insurance company is attempting to diminish or deny recovery based on some pre-existing condition, talk to your lawyer about your rights.

COVID-19, Your Employment, and the Emergency Amendment to Illinois Workers’ Compensation Act

THIS DECISION HAS BEEN RESCINDED

 

In the event you are injured or sickened at work the remedy available to you is contained in the Illinois Workers’ Compensation Act. Among the elements that must be proven in order to prevail in a Workers’ Compensation claim are: (1) an injury, illness, or incapacity; (2) the injury, illness or incapacity arose out of and in the course of your employment; and (3) your injury, illness or incapacity was causally connected to employment.

In the case of an illness, disease or incapacity, it can be challenging, and often is expensive, to obtain specific medical evidence showing that the condition arose out of and in the course of your employment. As the person bringing the claim, you have the burden under the rules of evidence to prove all the elements of your claim. Often illness and disease claims can be successfully defended with testimony that you could have easily contracted that illness or disease outside of the workplace environment. Because the person bringing the claim normally has the burden of proof, these cases sometimes can be problematic.

However, in apparent recognition of the many first responders and front-line workers who risk illness and injury daily in order to provide essential services to the sheltered-in-place populace, on April 14, 2020 and continuing for a period of at least 150 days thereafter, Executive Order 2020-10 has significantly modified several of the key evidentiary rules in Workers’ Compensation cases.

For first responder and front-line-workers, if you fall ill or are incapacitated by COVID-19 during the COVID-19 state of emergency, it will be rebuttably presumed your exposure to this virus arose out of and in the course of your employment. It will also be rebuttably presumed your COVID-19 illness or incapacity is casually connected to the hazards of the first responders or front-line worker’s employment.

This evidentiary modification is a sea change which shifts the burden of proof to the employer to prove the employee did not contact the illness or incapacity while at work. The enormous significance of this evidentiary modification can hardly be overstated.

Under emergency executive order 2020-10 COVID-19 First Responders and Front-Line Workers include, but are not limited to, individuals employed as:

Police;

Fire personnel;

Emergency medical technicians;

Paramedics;

Health care providers engaged in patient care;

Correction officers;

This presumption also is applicable to employees of a broad range of “essential service” providers, including the following:

Stores which sell groceries and medicine;

Food, beverage and cannabis production and agriculture;

Organizations that provide charitable and social services;

Gas stations and businesses needed for transportation;

Financial Institutions;

Hardware and supplies stores;

Critical trades;

Mail, post, shipping, logistics, delivery, and pick-up services;

Educational institutions;

Laundry services;

Restaurants for consumption off-premises;

Supplies to work from home;

Supplies for essential business and operations;

Transportation;

Home-based care and services;

Residential facilities and shelters;

Professional services;

Certain day care center employees

Manufacture, distribution, and supply chain for critical products and industries;

Critical labor union functions;

Hotels and motels

Funeral services.

THIS DECISION HAS BEEN RESCINDED

 

In the event you are injured or sickened at work the remedy available to you is contained in the Illinois Workers’ Compensation Act. Among the elements that must be proven in order to prevail in a Workers’ Compensation claim are: (1) an injury, illness, or incapacity; (2) the injury, illness or incapacity arose out of and in the course of your employment; and (3) your injury, illness or incapacity was causally connected to employment.

In the case of an illness, disease or incapacity, it can be challenging, and often is expensive, to obtain specific medical evidence showing that the condition arose out of and in the course of your employment. As the person bringing the claim, you have the burden under the rules of evidence to prove all the elements of your claim. Often illness and disease claims can be successfully defended with testimony that you could have easily contracted that illness or disease outside of the workplace environment. Because the person bringing the claim normally has the burden of proof, these cases sometimes can be problematic.

However, in apparent recognition of the many first responders and front-line workers who risk illness and injury daily in order to provide essential services to the sheltered-in-place populace, on April 14, 2020 and continuing for a period of at least 150 days thereafter, Executive Order 2020-10 has significantly modified several of the key evidentiary rules in Workers’ Compensation cases.

For first responder and front-line-workers, if you fall ill or are incapacitated by COVID-19 during the COVID-19 state of emergency, it will be rebuttably presumed your exposure to this virus arose out of and in the course of your employment. It will also be rebuttably presumed your COVID-19 illness or incapacity is casually connected to the hazards of the first responders or front-line worker’s employment.

This evidentiary modification is a sea change which shifts the burden of proof to the employer to prove the employee did not contact the illness or incapacity while at work. The enormous significance of this evidentiary modification can hardly be overstated.

Under emergency executive order 2020-10 COVID-19 First Responders and Front-Line Workers include, but are not limited to, individuals employed as:

Police;

Fire personnel;

Emergency medical technicians;

Paramedics;

Health care providers engaged in patient care;

Correction officers;

This presumption also is applicable to employees of a broad range of “essential service” providers, including the following:

Stores which sell groceries and medicine;

Food, beverage and cannabis production and agriculture;

Organizations that provide charitable and social services;

Gas stations and businesses needed for transportation;

Financial Institutions;

Hardware and supplies stores;

Critical trades;

Mail, post, shipping, logistics, delivery, and pick-up services;

Educational institutions;

Laundry services;

Restaurants for consumption off-premises;

Supplies to work from home;

Supplies for essential business and operations;

Transportation;

Home-based care and services;

Residential facilities and shelters;

Professional services;

Certain day care center employees

Manufacture, distribution, and supply chain for critical products and industries;

Critical labor union functions;

Hotels and motels

Funeral services.

Governmental Entity Responsibility for Injuries Caused By Fall

As a property owner, am I responsible for people injured on my property?

In Illinois, owners of property are not automatically responsible for people injured on their premises.

The injured party must show that the owner was negligent; that is, he or she failed to meet his or her duty to keep the premises reasonably safe for third parties. For example, the owner may fail to keep flooring dry, to light an area where a victim cannot see the potential for injury, to maintain pavement that has buckled or gapped, etc.

Owners are not defenseless, however. They can argue that the defect is so small that they do not bear responsibility for someone’s fall (de minimis). Conversely, they can argue that the danger is open and obvious and, as a result, they have no duty to warn as the injured party should have seen and understood the risk.

There are even exceptions to those defenses. The injured party can claim that they were distracted. For example, they were carrying groceries and did not see a glass door or curb. The injured party might also argue that even though he knew the danger existed, he had no option but to confront it because of work obligations or that he was confronted with an emergency situation with no other alternatives.

Injuries on property owned by a local government entity

As you can see, the matter can get a bit complicated. If the injury occurs on property owned by a local governmental entity, such as a park district or school,  other issues are introduced. The governmental entity will surely claim that it was involved in discretionary, rather than ministerial, activity and are, therefore, immune from liability for any injury pursuant to the terms of the Illinois Governmental Entity Tort Immunity Act.

For example, Wolter, Beeman, Lynch, and Londrigan once represented a high school student who slipped and fell on a wet ramp while assisting at a
dinner for local school superintendents at her high school.

The water was the result of the maintenance crew mopping up spilled iced tea. We claimed that the school district created a hazard by leaving the water on the ramp and by not providing a warning of the slick condition. One of the district’s responses was that they had complete immunity because the decision to mop up the spilled liquid was made by the school superintendent and fell under the definition of a discretionary act.

     Here is our reply to that claim:

DISCRETIONARY v. MINISTERIAL

     Illinois courts have long recognized that
the distinction between discretionary and ministerial functions resist precise
formulation and that the determination whether an act is one or the other must
be made on a case-by-case basis. Snyder v. Curran Township, 167 Ill.2d
466, 657 N.E.2d 988, 212 Ill.Dec. 643 (1995); Johnston v. City of East
Moline, 405 Ill. 460, 91 N.E.2d 401 (1950).

     There are numerous reasons why the acts of
Defendant in this case are ministerial, not discretionary. First, Illinois
courts have also long recognized that maintenance or repairs, as opposed to
improvements, are ministerial in nature. As stated by the First District
Appellate Court in Hanley v. City of Chicago, 343 Ill.App.3d 49, 795
N.E.2d 808, 277 Ill.Dec. 140 (2003):

“Pursuant to section 3-102(a) of the Tort Immunity Act, defendant ‘has the duty to
exercise ordinary care to maintain its property in a reasonably safe
condition.’ 745 ILCS 10/3-102(a) (West 1998). To maintain property is to keep
it ‘in a state of repair [or] efficiency and is considered a ministerial act
while to improve property falls under the discretionary decision of the government
entity. Morrisey, 334 Ill.App.3d at 256, 267 Ill.Dec. 587, 777 N.E.2d at
394, quoting Anderson, 317 Ill.App.3d at 1112, 251 Ill.Dec. 533, 740
N.E.2d at 826, quoting Webster’s Third New International Dictionary,
1392 (1993).’ A repair is generally considered a ministerial act for which a
defendant may be liable if negligently performed.”

In this case, Defendant cannot claim that it was in the act of improving property when
Plaintiff was injured. It was trying to maintain property by mopping up spilled
iced tea. Allowing water to remain on a slanted, tile runway without warning is
negligently performing a ministerial act and, therefore, no immunity applies.

     Second, even if the decision to mop up the spilled iced tea was discretionary, the act of removing the liquid was
ministerial. Robinson v. Washington Township, 2012 IL App.(3d) 110177,
976 N.E.2d 610, 364 Ill.Dec. 332; Gutstein v. City of Evanston, 402
Ill.App.3d 610, 929 N.E.2d 680, 341 Ill.Dec. 26 (2010). Our Supreme Court has
specifically stated that “A municipal corporation acts judicially or exercises
discretion when it selects and adopts a plan in the making of public
improvements, but as soon as it begins to carry out that plan it acts
ministerially and is bound to see that the work is done in a reasonably safe
and skillful manner.” Green v. City of Chicago, 73 Ill.2d 100, 108, 22
Ill.Dec. 507, 382 N.E.2d 1205, 1209 (1978), quoting Johnston v. City of East
Moline, 405 Ill. 460, 466, 91 N.E.2d 401, 404 (1950). In the case before
this Court, Plaintiff has alleged that Defendant did not perform the work in
question in a reasonably safe and skillful manner. (See also Plaintiff’s
Affidavit attached hereto as Exhibit A.) Defendant is not immune from liability
for the performance of this ministerial task.

     Third, a defendant claiming immunity pursuant to the Tort Immunity Act must prove its employee held either a position involving the determination of policy or a position involving the exercise of discretion and, in addition, must establish that the act or omission giving rise to the injuries was both a determination of policy and an exercise of discretion. 745 ILCS 10/2-201; Monson v. City of Danville, 2018 IL 122486, 115 N.E.3d 81, 425 Ill.Dec. 526. A policy determination for purposes of absolute immunity pursuant to the Tort Immunity Act is one where the public employee balances competing interests and makes a judgment call as to what solution will best serve those interests. In re Estate of Stewart, 2016 Ill.App.2d 151117, 60 N.E.3d 896, 406 Ill.Dec. 345; Hascall v. Williams, 2013 Ill.App. (4th) 121131, 996 N.E.2d 1168, 375 Ill.Dec. 112. Is the Defendant in this case actually taking the position that when confronted with spilled iced tea on a sloped ramp that it was confronted with competing interests which required the exercise of judgment? It has presented no evidence indicating that it assessed multiple factors in deciding to mop up the liquid. Monson v. City of Danville, 2018 IL 122486, 115 N.E.3d 81, 425 Ill.Dec. 526. As there were no competing interests and no exercise of judgment required, the discretionary immunity does not apply.

     Fourth, a “discretionary act” for the
purposes of public employee immunity under Illinois law is one which is unique
to a particular public office. Doe v. Bd. of Educ. of Comm. Unit School
Dist. #5, 680 Fed.Supp.2d 957 (2010). The decision to mop up the spilled
iced tea could have been made by anyone at the dinner in question, not just the
superintendent for Nokomis Community Unit School District No. 22. Plaintiff
assumes that maintenance personnel in attendance will testify that they had the
obligation to mop up the spilled liquid without having to wait for direction.

     Finally, as Defendant admits, it had the
written obligation to keep district buildings and grounds adequately maintained
in order to provide a safe environment. That directive does not involve
judgments based on competing interests. Pursuant to that written directive,
there was no choice but to mop up the spilled liquid. As a result,
discretionary immunity simply does not apply. (In re Estate of Stewart,
2016 IL App.2d 151117, 60 N.E.3d 896, 406 Ill.Dec. 345; Hascall v. Williams,
2013 Ill.App. (4th) 121131, 996 N.E.2d 1168, 375 Ill.Dec. 112.)

     In contrast, the cases cited by Defendant supporting their claim that the
discretionary act immunity applies do not involve physical maintenance
requiring safe and skillful work or written directives regarding safety, but do
involve the determination of policy or exercise of discretion by an employee
uniquely situated to do so. They also involve the balancing of various
interests which competed for time and resources while planning and conducting
public activities. In Harinek v. 161 North Clark Street, Ltd. Partnership,
181 Ill.2d 335, 692 N.E.2d 1177, 230 Ill.Dec. 11 (1998) the city fire marshall,
while in the process of planning and executing a fire drill at plaintiff’s
place of employment, exercised his discretion in determining how, when, and
where to hold drills. He bore the sole and final responsibility for the program.
He considered multiple issues when determining how the drill could best be
conducted efficiently and safely. In our case no such judgment based on
competing interests was conducted or necessary.

     Similarly, in Harris v. Hardin County Comm. Unit School Dist. #1, 197 Ill.2d 466,
758 N.E.2d 848, 259 Ill.Dec. 440 (2001) a high school principal made a policy
decision when he refused a student’s request for early dismissal because of
inclement weather and instead told him to wait for the entire school to be
dismissed early. The court noted that the principal:

“had to consider the circumstances surrounding
Joshua’s request, including the weather and road conditions, Joshua’s safety,
and the lack of permission from Joshua’s parents or guardian. Brumley then had
to balance the competing interests of Joshua’s desire to leave early before the
weather worsened with that of the school’s interest in an orderly dismissal,
along with the possibility that if one student was dismissed early then, in the
future, every student would want to leave early. Brumley then had to make a
judgment as to how best to perform his duties as principal and find a solution
that best served all of these interests.”

Again, our case does not involve a public employee in a unique position to determine policy or competing interests requiring assessment before a judgment in made. As is the case in Harinek, Harris does not involve property maintenance or written policies regarding safe premises. Neither case supports the Defendant’s position that it was engaged in discretionary activity.     

Liability issues are complex. Ask for help.

As you can see, the laws attempt to be fair to all parties results a number of rules and exceptions to those rules. Because the liability issues are so complex, you may want to contact an attorney for advice. He or she will, no doubt, also be able to help you with identifying and evaluating your damages. 

Contact us at Wolter, Beeman, Lynch, & Londrigan for a free consultation about your case. 

Navigating an Independent Medical Exam Pursuant to Section 12 of The Illinois Workers Compensation Act

Tips to help you understand what’s involved in a workers’ compensation examinations requested by an employer

What is Section 12 of the Workers Compensation Act?

Section 12 of the Illinois Workers’ Compensation Act 820ILCS305/12 provides as follows:

“An employee entitled to receive disability payments shall be required, if requested by the employer, to submit himself, at the expense of the employer, for examination to a duly qualified medical practitioner or surgeon selected by the employer, at any time and place reasonably convenient for the employee, either within or without the state of Illinois, for the purposes of determining the nature, extent, and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this act. An employee may also be required to submit himself for examination by medical experts under Section C of Section 19.

An employer requesting such an examination, of an employee residing within the state of Illinois, shall deliver to the employee with a notice of the time and place of examination sufficient money to defray the necessary expense of travel by the most convenient means to and from the place of examination, and the cost of meals necessary during the trip, and if the examination or travel to and from the place of examination causes any loss of working time on the part of the employee, the employer shall reimburse him for such loss of wages upon the basis of his average weekly wage. Such examination shall be made in the presence of a duly qualified medical practitioner or surgeon provided and paid for by the employee, if such employee so desires.

In all cases where the examination is made by a surgeon engaged by the employer, and the injured employee has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employer to deliver to the injured employee, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employer and the same shall be an exact copy of that furnished to the employer, said copy to be furnished the employee, or his representative, as soon as practicable, but not late than 48 hours before the time the case is set for hearing. Such delivery shall be made in person, either to the employee or his representative, or be registered mail to either and the receipt of either shall be proof of such delivery. If such surgeon refuses to furnish the employee with such statement to the same extent as that furnished the employer, said surgeon shall not be permitted to testify at the hearing next following said examination.

If the employee refuses to submit himself to examination or unnecessarily obstructs the same, his right to compensation payment shall be temporarily suspended until such examinations shall have taken place, and no compensation shall be payable under this act for such period.

In all cases where the examination is made by a surgeon engaged by the injured employee and the employer has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employee to deliver to the employer, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employee and the same shall be an exact copy of that furnished to the employee, said copy to be furnished to the employee, or his representative, as soon as practicable but not later than 48 hours before the time the case is set for hearing. Such delivery shall be made in person, either to the employer or his representative, or by registered mail to either and the receipt of either shall be proof of such delivery. If such surgeon refuses to furnish the employer with such statement to the same extent as that furnished the employee, said surgeon shall not be permitted to testify at the hearing next following said examination.”

Notice of a Section 12 Exam

The process of submitting to a Section 12 worker’s comp exam by an employer or its insurance company begins with receiving notice of the independent medical exam. This notice shall be provided to the injured worker a reasonable time period prior to the exam and shall provide the name and address of the examining physician so that the injured worker can attend the examination. Frequently the notice of independent medical examination, pursuant to Section 12 of the Illinois Workers’ Compensation Act, will request that the injured party furnish all their related medical records and diagnostic exams including x-ray and MRI results.

It is important to remember that according to Section 12 of the Act, the employer or its insurance company should go to all the expense of furnishing the section 12 documentation to its examining physician. That means that an injured party does not have to scramble to obtain medical documentation and bare the expense of that medical documentation production because Section 12 clearly lays out that the party requesting the examination should pay for it.

The injured party should not be alarmed by that request. His or her attorney should simply tell the employer or its insurance company that, since the exam has been requested by the employer, it should provide the records.

If the exam takes places a good distance away from the injured worker’s home, the employer must pay mileage and other reasonable expenses for him/her to attend the exam. This may include the cost of a taxi or other means if the injured worker is unable to drive to the exam.

Employee Responsibilities: Attend the Exam

While an injured employee may find attending a Section 12 exam excessive in light of the fact that he/she may be seeing multiple treating doctors of their own, an injured employee should make every reasonable attempt to be available and attend the appointment his/her employer made for them pursuant to Section 12. If you try to get out of a section 12 exam, the employer, or its insurance company, may withhold compensation payments for failure to attend the appointment. If, due to a reasonable conflict, the injured employee cannot attend the appointment, it is imperative that the employee notify their employer’s insurance company that they are unable to attend the meeting with the examining doctor so that the meeting can be rescheduled, and so the employer cannot claim that the employee refused to attend.

Be Open and Friendly

It is very important that the injured worker remain open and friendly to the examining physician even if the physician makes the worker wait in his or her office for a significant period before examining them. Any adversarial tone or refusal to be open to the examining physician will be noted in the report. They will likely not mention, the fact that the worker had to wait in their office for a significant amount of time prior to the exam beginning.

Fill out the Exam Paperwork

In addition to remembering to attend the exam, the injured party should arrive on time, or maybe a little bit early. There is often some paperwork to fill out and if the employee is late for the exam, it will surely be noted by the examining physician in their subsequent report. The injured party should fill out the paperwork as accurately as possible because any discrepancy that the examining physician notices between the medical records that have been provided and the documentation the worker fills out prior to the exam will surely be noted.

Track the Time Spent with the Doctor

Once the appropriate paperwork is filled out, there are several things the injured worker will want to keep track of. First, there is the amount of time the examining physician actually meets with the injured worker. If the examining physician, at some later point, issues an opinion that is in the interest of the employer, (which is usually the case, as the doctor will remember who is paying for the exam) the case will likely become a battle of experts, meaning the treating physician may have the opinion that the injuries were due to the workplace accident or injury and the examining physician believes they were not caused by the workplace accident or injury. The employee will obviously want the arbitrator who decides the case to side with the treating physician over the examining Section 12 physician. If the Section 12 examining physician only meets with the injured worker for 2-3 minutes and then issues a report against them, that would be helpful to tell the injured worker’s attorney who will, at some point, be cross-examining this person as to his/her opinions.

Track the Thoroughness of the Physical Exam

It is also important to note the full scope of the exam that the examining physician performs on the injured worker. If the examining physician only asks a series of brief questions then leaves the room, the arbitrator will likely give the that opinion less weight than an examining physician that conducts a thorough and objective physical exam.

Report the Details to Your Attorney

Finally, it is important for the injured worker to report back to his or her attorney the time and details of the independent medical exam as soon as possible after the exam while it is fresh in his/her memory. All the information will help the attorney cross-examine the examining physician if the examining physician’s opinions do not favor the injured worker’s case.

Get a Personal Injury Lawyer at Wolter, Beeman, Lynch & Londrigan

In addition to the tips provided in this blog post, the attorneys at Wolter, Beeman, Lynch, & Londrigan can give you specific advice navigating the independent medical exam process for workers compensation. If you have been injured at work or have any questions regarding a Section 12 independent medical exam, please feel free to contact our office at 217-753-4220.

Appealing a Workers’ Compensation Arbitration Decision

What Happens in an Arbitration Decision?

In a worker’s compensation case, the initial hearing, where witnesses are questioned and written evidence is submitted by attorneys for the Petitioner and by the Respondent, is handled by the Arbitrator who has been assigned the case by the Illinois Workers’ Compensation Commission (IWCC). Occasionally, when the assigned Arbitrator is unavailable, another Arbitrator with the IWCC will be assigned to hear the case and to provide a decision at a time following the hearing date.

Appealing an Arbitrator's Decision

If either the Petitioner or Respondent disagrees with the Arbitrator’s decision, that party has the right to appeal. The appealing party must file a Petition For Review at the IWCC offices within 30 days of receipt of the Arbitrator’s decision. Proof that a timely filing has been made can be shown by the date file stamped on the Petition For Review, or by a postmark demonstrating that the document was mailed to the Commission on or before the due date.

Once a petition for review has been timely filed, the original jurisdiction of the case is vested in the IWCC for all issues of law and fact. This means that the IWCC is not bound by any of the arbitrator’s findings.

In addition to filing a Petition For Review, the appealing party is also responsible for obtaining and securing signatures of all the parties on the arbitration transcript for the purposes of authentication. The appealing party must file the transcript with the commission on or before the return date on review, which is a deadline to file the authenticated arbitration transcript.

In addition to providing a date in which the authenticated transcript must be filed with the IWCC, the commission will also provide a briefing schedule to the parties. The appealing party will be the first to file its brief, entitled Statement of Exceptions and Supporting Brief, which includes details of the arbitrator’s decision such as the names of the parties, the case number, the name of the Commissioner who has been assigned to the review (appeal), the name of the arbitrator who rendered the decision, and the specifics of the decision the arbitrator made with regard to accident date and the amounts awarded.

The appealing party also must include a separate heading for each issue which the appealing party believes was decided in error. Additional information regarding argument and legal authorities that support the positions of the argument should be included in the supporting brief to the statement of exceptions.

Once the statement of exceptions and supporting brief have been filed by the appealing party, the non-appealing party may file a brief in response to the statement of exceptions. This brief will specify reasons why the arbitrator’s decision should be upheld.

 After the briefs have been submitted, the IWCC will set a time and place for the oral arguments if one has been requested. The oral arguments will generally be heard by a panel of three commissioners and each side has a limited amount of time (usually 5 minutes) to provide their oral argument and/or answer the commissioners specific questions regarding the case.

The commission, after hearing the oral arguments and considering the briefs filed by each party, will file its decision within 60 days of the oral argument. A decision by the majority of the three-member panel shall constitute the decision of the IWCC.


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Illinois Workers’ Compensation Act

After an Accident, Submit Your Medical Bills to Your Health Insurance Carrier

Neck pain after a car accident

Avoid this Mistake: Not submitting your medical bills to your own health insurance company

Not submitting your medical bills to your own health insurance company is only one of many disastrous mistakes an injury victim can make if an experienced lawyer is not consulted right away.

If you are in a car accident and have your own health insurance provider, make sure you promptly submit your medical bills to your own health insurance company for payment.

This sounds simple enough. However, we often meet with people who were involved in some sort of accident many months ago and had tried to handle the claim on their own. In this situation, it is not unusual to find these people have unpaid medical bills and are in collection with their credit rating badly damaged despite the fact they had health insurance to pay these bills all along.

Who should pay the medical bills?

When we ask these people why they have not previously submitted their medical bills to their health insurance company for payment, we typically get one of two common responses.

One common response is “My health insurance company should not have to pay, because the accident was the fault of the other person, and they should pay.”

Another common response is, “The adjuster for the at-fault person told me to send my medical bills to him.”

If you hear one of these responses, you should still submit your bills to your own health insurance. Let’s look at these responses a little closer.

 When the other person is at fault

Health insurance

First, don’t hesitate to submit your medical bills to your own health insurance company after an accident. You have health insurance to pay for your medical bills. Events like car accidents are the reasons why you pay health insurance premiums.

Second, your health insurance company nearly always has a right to recover much of what it paid in benefits from the proceeds of a successful injury case. Therefore, if your case is successful, we will work with your health insurance company to try to make sure they recover what they are entitled to.

Third, there are normally time limits within which you must submit medical bills to your health insurance company which, if not adhered to, will result in your health insurance company being able to deny any payment. So be sure to submit your bills as soon as you can.

When the at-fault adjuster tells you to send him the medical bills

If, after an accident, the at-fault adjuster says “send me your medical bills” many people presume the at-fault adjuster is going to pay the medical bills when they are sent to him. However, if you have listened carefully the at-fault adjuster has said “send me your medical bills,” and has not said, “send me your medical bills and I will promptly pay them.” There is a big difference in these two statements.

An at-fault party or their insurance carrier has no legal obligation to pay anything unless and until there is either a final settlement of the claim or there is a final judgment of the court. It is exceedingly rare that an at-fault company makes any payment for anything except property damage before a final settlement is made or a judgment is entered.

In nearly every instance, the only reason the at-fault adjuster asks you to send him your medical bills is not to pay them, but merely to help determine how much of a reserve his company should set up for your claim. The at-fault adjuster never tells you this and most people end up with the incorrect perception that the at-fault adjuster is going to pay your medical bills when you send them to him. The fact that this happens should serve as a giant red flag to any accident victim who thinks the at-fault adjuster is there to help him.

Medical bills

Avoid this Mistake: Talking Details With the At-Fault Adjuster

Not submitting your medical bills to your own health insurance company is only one of many disastrous mistakes an injury victim can make if an experienced lawyer is not consulted right away. Another mistake we see is talking with the adjuster about the details of the accident.

Except for obtaining the name of the at-fault adjuster, the claim number and the telephone number of the adjuster, it is best not to speak with the at-fault adjuster about how the accident happened or your past or present medical condition before you contact an experienced lawyer who will represent your interests rather than the interests of the at-fault insurance company.

© Bruce A. Beeman

Injuries on Private Property: What You Need to Know

Injuries on private property happen every day. Many people believe that if they become injured on the property of another, that party is strictly liable for their injuries.

However, that is not the law in the State of Illinois.

Before you seek damages for your injury, learn about your rights and the rights of the property owner. Know what to do if you are injured on private property. Here is some information from the attorneys at Wolter, Beeman, Lynch, and Londrigan, who specialize in personal injury cases.

Was the Property Owner Negligent?

Before you can seek compensation for injuries you suffered while on a property, you must first establish that the property owner was negligent in how he or she maintained the condition of his or her property.

In other words, the injured party must establish that the owner of the property created a condition, or allowed a condition to exist, which posed an unreasonable risk of harm to the injured party. Furthermore, the injured party must establish that the injuries received were a direct result of the condition of the property the injured party objects to.

For instance, if an injured party was invited on to the property of another, and while on that property, tripped and fell, thereby injuring themselves, the injured party would need to establish that:

  1. the cause of his or her fall was the result of some negligent condition the property owner allowed to exist on his or her property.
  2. the property owner knew or should have known the dangerous condition existed.
  3. they had sufficient opportunity to rectify or correct the condition prior to the injury having occurred.

In general, a party that owns, controls, or maintains property has a duty to maintain the premises in a reasonably safe condition. Any dangerous condition, therefore, must be removed or corrected, or a warning to invitees, who might encounter the danger, must be provided.

Was the Danger Open and Obvious?

A property owner is generally under no obligation to guard against injury from open and obvious dangers. Open and obvious conditions are conditions and risks which are apparent to and would be recognized by reasonable people exercising ordinary perception, intelligence, and judgment in visiting the area.

Property owners are not expected to foresee an injury from open and obvious dangers because property owners are entitled to the expectation that those who enter upon their property will exercise reasonable care for their own safety.

Exceptions to Obvious Dangers: Distraction

However, Illinois courts have recognized some exceptions to this general rule. One of those exceptions is the “distraction” exception to the Open and Obvious Danger Rule grounded in foreseeability.

If a plaintiff’s attention was distracted from the obvious danger, because circumstances required him or her to focus on some other condition, such as looking for car keys, or the person’s car, or otherwise having their attention drawn away from the condition of the walkway, then the hazard may not have been obvious.

Was the Injury Foreseeable?

Under such circumstances, property owners must take reasonable care to protect invitees from harm, in spite of the open and obvious nature of the danger.

In determining whether a duty exists, courts have focused on whether the owner of the property should foresee that a patron may have their attention drawn elsewhere, and thereby overlook the condition of the walkway, which caused the injuries. In determining whether a duty exists, the focus is on the foreseeability of the injury, not whether a jury will consider the plaintiff contributorily negligent for looking elsewhere at the time of injury.

Was the Property Cared for?

All business owners must care for their property to allow users to use it in a reasonable way. If the the business owner knows of a dangerous condition of the property, a personal injury is foreseeable, and it’s relatively easy to correct, courts will often tell the property owner to repair and maintain the property.

Distractions can come in many forms and it’s not always foreseeable to predict the influence a distraction will have on hazard. All that is required is the property owner’s awareness that those close to the hazard are likely to become distracted in some way and be at risk of the hazard. Under these conditions, Courts will traditionally impose a duty upon the property owner to correct or warn of the condition. But a jury may still find that the injured party’s negligent conduct contributed to the injury.

What to Do if You’re Injured on Private Property

If you become injured while on private property, first determine the condition that caused the injury. What was the danger or hazard? If possible, take pictures of this condition. Can you find out how long that danger has been there? Was there enough time for the property owner to find the hazard and correct or repair it? You should also promptly contact an attorney, so that they can investigate the conditions on the property that led to your injury and preserve the evidence necessary to substantiate your claim.

Contact Wolter, Beeman, Lynch and Londrigan to get a free consultation regarding your personal injury case.

Exculpatory Clauses at Fitness Clubs

Fitness gym

What is an Exculpatory Clause?

Fitness clubs, as well as recreational facilities, often have their customers sign exculpatory clauses as part of their membership agreement in an effort to limit their liability for subsequent injuries. Illinois law, however, does not favor such agreements. (Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill.App.3d 1037, 501 N.E.2d 268, 103 Ill.Dec. 247 [1986]; Poskozim v. Monnacep, 131 Ill.App.3d 446, 86 Ill.Dec. 663, 475 N.E.2d 1042 [1985]).

They are to be strictly construed against the party they benefit (Hussein v. L.A. Fitness International, L.L.C., 2013 Ill.App. (1st) 121426, 2013 WL 1190488 [Ill.App.1st Dist.]). An agreement protecting one from the consequences of his own negligence must be expressed in clear, explicit and unequivocal language showing that such was the intent of the parties (Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill.App.3d 1037, 501 N.E.2d 268, 103 Ill.Dec. 247 [1986]). As stated in Comment d to Section 496B of the Restatement of Torts (Second), which discusses the validity of express assumptions of risk:

“In order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant.”

Was the Facility Negligent?

A defendant’s attempt to insulate itself may fail for several reasons. First, the membership agreement signed by the invitee may not contain any specific language authorizing the grant of exculpation or indemnification for the defendant’s own negligence. In McNiff v. Millard Maintenance Service Company, 303 Ill.App.3d 1074, 1077-78, 715 N.E.2d 247, 239 Ill.Dec. 802 (Ill. 5th App.Dist, 1999]), quoting Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, 70 N.E.2d 604 [Ill. 1947], the Court stated that:

“An agreement to indemnify a party for his own negligence would be so unusual and extraordinary as to require that the contract put the intent to indemnify ‘beyond doubt by expressed stipulation’.”

The Court concluded that an indemnification contract without specific language indemnifying the defendant for its own negligence could not be interpreted to do so (McNiff at 1079). If the membership agreement does not explicitly grant exculpation or indemnity to a defendant for its own negligence, no such protection is provided.

Was the Accident Foreseeable?

Second, the foreseeability of a danger is a critical element of the risk a party assumes and will often define the scope of an exculpatory agreement (Platt v. Gateway International Motorsports Corporation, 351 Ill.App.3d 326, 813 N.E.2d 279, 286 Ill.Dec. 222 [2004]; Simpson v. Byron Dragway, Inc., 210 Ill.App.3d 639, 155 Ill.Dec. 398, 569 N.E.2d 579 [1991]).

The invitee must be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution (Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 147 Ill.Dec. 187, 559 N.E.2d 187 [1990]).

In order to fall within the confines of the exculpatory agreement, the injury must fall within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff (Garrison, 201 Ill.App.3d at 585, 147 Ill.Dec. 187, 559 N.E.2d 187 [1990]).

If a membership agreement only limits the assumption of the risk of injury to the period of time the plaintiff is “using any equipment, programs or facilities,” a person could pursue a claim for an injury from unrelated condition of the premises. If a facility wants to be indemnified for the dangerous condition of its premises, it needs to explicitly say so.

Woman running on a treadmillExample: Running Treadmill

As an example, my firm represented a young lady who was injured when she stepped on to a treadmill which, unbeknownst to her, had been turned on by an employee of the facility during the cleaning process and not turned off.

Because there was no specific reference to the business’ own negligence in the exculpatory clause and the invitee had not yet begun to use the equipment, the provision did not apply and she was able to pursue her claim.

Example: Debris in the Walkway

In another case, we took to trial, a 90-year-old woman in the cardiac rehabilitation program at the FitClub tripped over a plastic conduit extending into a walkway. She fell and fractured her hip.

It was unrealistic for our client to foresee and avoid the area that contained this unnecessary, dangerous hard plastic obstruction in the walkway. The court agreed it was not encompassed in the exculpatory language in our client’s Membership Agreement.

Example: Air Fumes

That case closely resembled the facts in Larsen v. Vic Tanny International, 130 Ill.App.3d 574, 474 N.E.2d 729, 85 Ill.Dec. 769 [1984]. In that case, the plaintiff was injured as a result of inhaling gaseous vapors.

Recognizing that the foreseeability of a specific danger is an important element of the risk which a party assumes, the Court concluded that the defendant’s conduct and the risk of injury inherent in this conduct was not of a type intended by the parties to fall within the scope of exculpation.

Example: Injured As a Helpful Bystander

Similarly, in another case, the plaintiff was injured as she tried to assist another individual who was having trouble with the leg press portion of a universal machine (Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill.App.3d 1037, 501 N.E.2d 268, 103 Ill.Dec. 247 [1986]). The Court held that the language of the signed membership form was not explicit enough to relieve the YMCA from liability for negligence arising from the use of its equipment. The signed membership form stated as follows:

“In consideration of my participation in the activities of the Young Men’s Christian Association of Metropolitan Chicago, I do hereby agree to hold free from any and all liability the YMCA of Metropolitan Chicago and its respective officers, employees and members and do hereby for myself, my heirs, executors and administrators, waive, release and forever discharge any and all rights and claims for damages which I may have or which may hereafter accrue to me arising out of or connected with my participation in any of the activities of the YMCA of Metropolitan Chicago.”

The Court concluded that this language did not explicitly include the activity which resulted in Ms. Calarco’s injury and, therefore, provided no insulation for the defendant.

Disparity in the Bargaining Position or Social Relationship

Finally, an exculpatory contract is not enforceable where there is a substantial disparity in the bargaining position of the two parties or where there is something in the social relationship between them that would militate against upholding the clause (Harris v. Al Walker, d/b/a Ky-Wa Acres, 119 Ill.2d 542, 519 N.E.2d 917, 116 Ill.Dec. 702 [1988]; Hellwig v. Special Events Management, 2011 Ill.App. (1st) 103604, 956 N.E.2d 954, 353 Ill.Dec. 826 {2011]; Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581, 559 N.E.2d 187, 147 Ill.Dec. 187 [1990]).

Example: No Choice in Rehab Care

When our client entered the third phase cardiac rehabilitation program following her heart surgery at the age of 87, the defendant’s facility was the only location offering the program. As a result, she had no choice but to continue pursuant to the Membership Agreement she had previously signed.

Because she had no choice, there was a substantial disparity in the bargaining position of the two parties. Furthermore, the age and physical capacity of the invitees involved in the third phase cardiac rehabilitation program militates against upholding a clause indemnifying the defendant from its own negligence.

The state of Illinois has always recognized the public policy of protecting its elderly and/or physically incapacitated citizens (Mason v. Department of Public Health, 326 Ill.App.3d 616, 761 N.E.2d 794, 260 Ill.Dec. 611 [2001]; Creighton, et al v. Pope County, 320 Ill.App. 256, 50 N.E.2d 984 [1943]). As such, no health club should be allowed to invite the old and/or incapacitated to its facility, charge them for the privilege and then relieve itself of responsibility for injuries caused by its own negligence.

No health club should be allowed to invite the old and/or incapacitated to its facility, charge them for the privilege and then relieve itself of responsibility for injuries caused by its own negligence.

Weight room at a fitness gymGet Experienced Lawyers to Help You

In short, if you or someone you know is injured at a fit club or recreational facility and the owner tells you that you cannot pursue a claim for injuries because of your membership agreement, take the time to review the contract to see if it applies to your circumstances.

Even better, have an attorney review the document and apply it to the facts of your case. You may find that the owner is not correct and your claim can be pursued.

Workers’ Compensation Basics: Fatal Cases

Today’s blog will address how the Illinois Workers’ Compensation Act compensates surviving family members when a work injury causes the death of an employee. The November and December blogs dealt with various other aspects of the Illinois Workers’ Compensation Act. Please review those blogs for additional information about workers’ compensation in Illinois.

The benefits provided to the family of a deceased worker are limited to replacing the income of the deceased worker over time and reimbursing the family for burial expenses.  Due to these limitations, it is extremely important to speak with an attorney about the death of an injured worker in order to fully investigate the death and the potential for bringing a civil claim against a negligent third party in addition to filing a workers’ compensation claim. A civil claim against a negligent third party can possibly provide surviving family members with a greater recovery than what is provided under the Illinois Workers’ Compensation Act.

Who Can Apply for Death/Survivor Benefits Under the Act?

Only certain classes of surviving family members qualify for weekly death/survivor benefits (two-thirds of the employee’s gross average weekly wage during the 52 weeks before the injury, subject to minimum and maximum limits) under the Illinois Workers’ Compensation Act 820 ILCS 305/7:

Sec 7. The amount of compensation which shall be paid for an accidental injury to the employee resulting in death is:

(a) If the employee leaves surviving a widow, widower, child or children, the applicable weekly compensation rate computed in accordance with subparagraph 2 of paragraph (b) of Section 8, shall be payable during the life of the widow or widower and if any surviving child or children shall not be physically or mentally incapacitated then until the death of the widow or widower or until the youngest child shall reach the age of 18, whichever shall come later; provided that if such child or children shall be enrolled as a full time student in any accredited educational institution, the payments shall continue until such child has attained the age of 25. In the event any surviving child or children shall be physically or mentally incapacitated, the payments shall continue for the duration of such incapacity.

You will note from the above paragraph that the death/ survivor benefits are designed to compensate the widow or widower of the deceased person and/or the deceased person’s children (up until the age of 18, or 25 if the child is a full time student). If a spouse or child exist, the benefits go to them because of the emphasis on replacing income of the deceased worker.  If an injured employee did not leave a spouse or child, it may be possible for other classes of persons to receive death/survival benefits under the Illinois Workers’ Compensation Act:

(b) If no compensation is payable under paragraph (a) of this Section and the employee leaves surviving a parent or parents who at the time of the accident weretotally dependent upon the earnings of the employee then weekly payments equal to the compensation rate payable in the case where the employee leaves surviving a widow or widower, shall be paid to such parent or parents for the duration of their lives, and in the event of the death of either, for the life of the survivor.

(c) If no compensation is payable under paragraphs (a) or (b) of this Section and the employee leaves surviving any child or children who are not entitled to compensation under the foregoing paragraph (a) but who at the time of the accident were nevertheless in any manner dependent upon the earnings of the employee, or leaves surviving a parent or parents who at the time of the accident were partially dependent upon the earnings of the employee, then there shall be paid to such dependent or dependents for a period of 8 years weekly compensation payments at such proportion of the applicable rate if the employee had left surviving a widow or widower as such dependency bears to total dependency. In the event of the death of any such beneficiary the share of such beneficiary shall be divided equally among the surviving beneficiaries and in the event of the death of the last such beneficiary all the rights under this paragraph shall be extinguished.

(d) If no compensation is payable under paragraphs (a), (b) or (c) of this Section and the employee leaves surviving any grandparent, grandparents, grandchild or grandchildren or collateral heirs dependent upon the employee’s earnings to the extent of 50% or more of total dependency, then there shall be paid to such dependent or dependents for a period of 5 years weekly compensation payments at such proportion of the applicable rate if the employee had left surviving a widow or widower as such dependency bears to total dependency. In the event of the death of any such beneficiary the share of such beneficiary shall be divided equally among the surviving beneficiaries and in the event of the death of the last such beneficiary all rights hereunder shall be extinguished.

(e) The compensation to be paid for accidental injury which results in death, as provided in this Section, shall be paid to the persons who form the basis for determining the amount of compensation to be paid by the employer, the respective shares to be in the proportion of their respective dependency at the time of the accident on the earnings of the deceased. The Commission or an Arbitrator thereof may, in its or his discretion, order or award the payment to the parent or grandparent of a child for the latter’s support the amount of compensation which but for such order or award would have been paid to such child as its share of the compensation payable, which order or award may be modified from time to time by the Commission in its discretion with respect to the person to whom shall be paid the amount of the order or award remaining unpaid at the time of the modification.

Paragraphs B through E of section 7 detail those who qualify for death/survivor benefits under the Act in the absence of a spouse or child, beginning with the parents of the deceased worker who were totally dependent on the worker’s income for survival. If there are no parents totally dependent on the income of the deceased worker, benefits may be paid to persons who are financially dependent on the employee at the time of death. If you feel that you may be entitled to death/survivor benefits under the Illinois Workers’ Compensation Act it is important to consult with an attorney.

Are Workers’ Compensation Death Benefits Capped at a Certain Amount?

Weekly death benefits under the Illinois Workers’ Compensation Act are subject to the Death Benefit Maximum under section 8(b)4.2

4.2. Any provision to the contrary notwithstanding, the total compensation payable under Section 7 shall not exceed the greater of $500,000 or 25 years.

If the deceased worker dies leaving a spouse, the spouse is entitled to weekly payments of a death benefit for up to $500,000.00 or for 25 years, whichever is greater. These benefits continue until the maximum amount is paid, the spouse dies, or remarries. In the event of remarriage, the spouse is entitled to an additional payment under section 7a of the Act:

In the event of the remarriage of a widow or widower, where the decedent did not leave surviving any child or children who, at the time of such remarriage, are entitled to compensation benefits under this Act, the surviving spouse shall be paid a lump sum equal to 2 years compensation benefits and all further rights of such widow or widower shall be extinguished.

In the event that the deceased worker leaves behind a dependent child, but no spouse, the children are entitled to benefits until the youngest is 18 or 25 in the case of a full time student. In addition, the weekly compensation payments shall in any event continue for a period of not less than 6 years, also found under section 7a of the Act:

If the employee leaves surviving any child or children under 18 years of age who at the time of death shall be entitled to compensation under this paragraph (a) of this Section, the weekly compensation payments herein provided for such child or children shall in any event continue for a period of not less than 6 years.

What is the Burial Benefit under the Illinois Workers’ Compensation Act?

The burial benefit is due to the person who pays for the deceased worker to be buried and is found in Section 7f of the Act:

(f) The sum of $8,000 for burial expenses shall be paid by the employer to the widow or widower, other dependent, next of kin or to the person or persons incurring the expense of burial.

The above information is only a partial synopsis of the death/survivor benefits contained in the Illinois Workers’ Compensation Act. An experienced attorney is needed to navigate the many aspects of the Act and to fully investigate the death of a loved one while working. The attorneys at Wolter Beeman Lynch & Londrigan, LLP have experience with fatal workers’ compensation cases and are available to help.


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