Personal Injury/Medical Malpractice
A personal injury is any type of physical or emotional injury to the person. Personal injuries can be temporary or permanent in nature. Personal injuries can result in death.
Personal injuries can result from a motor vehicle accident. Motor vehicle accidents include those accidents and injuries resulting from an automobile accident, a motorcycle accident, a motor scooter accident, a truck accident, a bus accident, a train accident, a boat accident, a personal watercraft accident, a snowmobile accident, an all-terrain vehicle accident, and even a golf cart accident.
Personal injuries can also result from a defective product. This area of the law is known as products liability. Types of products that have resulted in product liability recoveries are too numerous to list in full, but include defective motor vehicles, defective firearms, defective baby furniture, flammable baby clothing, defective medical equipment, defective medications, defective power tools, defective lawn equipment, and defective sports equipment.
Personal injuries can result from nursing home negligence. Personal injuries can also result from the negligence of assisted living facilities.
Personal injury claims can also be the result of falls which occur on property owned by businesses or other persons. The liability of the owner of the property is not automatic, however. It must be shown that the landowner was negligent and that the negligence caused the fall. For example, if you fall in a restaurant and can prove that the material on the floor that caused the fall was the result of something done by an employee or that it was on the floor for such a long period of time that it should have been recognized and removed, the restaurant will likely be responsible for your injuries. Similarly, if a landowner knows that there is a defect on his or her property that is not observable to guests, injuries caused by the defect may also be compensable.
Personal injuries may also be the result of negligent medical care provided by a health care provider. If a nurse, doctor, podiatrist, chiropractor, surgeon, etc. fails to meet the applicable standard of care and that failure results in injury to his or her patient, the health care provider will be responsible for all of the patient’s damages. These include out-of-pocket expenses, such as lost income and additional medical bills, as well as past and future pain and suffering.
In summary, if an injured person can establish that their injury resulted from someone else’s negligence or misconduct, then the wrongdoer may be obligated to pay compensation for those injuries and the other losses sustained.
In order to establish that you were injured as a result of someone else’s negligence it would be necessary for your lawyer to carefully understand and evaluate the facts surrounding your injury. Your attorney should discuss the facts of your injury with you and, with your assistance, determine whether or not your injury and damages resulted from someone else’s misconduct.
Such misconduct can usually be found where someone breaches a duty or breaks a rule imposed upon by them by law. For example, a stop sign imposes a duty or obligation on a driver to come to a complete stop before entering an intersection. If someone breaches that duty and goes into the intersection without stopping, they are liable for any damages caused by that breach. Similarly the law imposes a duty on the manufacturer of potentially dangerous products to design and manufacture those products in a reasonably safe manner. If the manufacturer fails to design or manufacture those products in accordance with those standards, and a purchaser or user of that product is injured as a result, the product manufacturer can be held responsible for those injuries or damages.
This same kind of analysis applies to medical, legal, architectural and accounting malpractice cases. Those professionals all are required by law to meet certain minimum standards of competence in their professional practice. If their actions fall below that standard of professional care and an injury or damage results from that failure, then the patient or client may be entitled to money damages.
When evaluating a potential suit based on personal injuries the first and most important thing your lawyer should do with you is evaluate the facts and circumstances of the events in question. Your lawyer should be able to work with you to determine whether or not your injuries were directly caused by someone else’s actions. The lawyer then should evaluate the claim with you to determine whether or not those injuries or damages resulted from the breach of some duty by that other person.
What are some tips on selecting a lawyer for a serious personal injury or wrongful death claim?
We have five tips that should be helpful for selecting a lawyer to handle your personal injury or wrongful death claim.
FIRST: Interview the lawyer and the law office.
- Ask to meet with the lawyer at his or her office for a short period of time to explain your case. This will give you an opportunity to see if you are comfortable with that person and office.
- Be sure you know with whom you are meeting. Is your meeting with one of the named principles of the office, or are you meeting with a lawyer that is not featured in the firm’s literature, possibly a lawyer you never heard of and did not expect to meet? At some firms you might not even meet with a lawyer at all, but may meet with a paralegal or secretary on your first or even subsequent visits. However, even if you meet with a lawyer who you like and he or she has a very efficient and impressive office, you still need to know much more.
SECOND: Find out about the specific jury trial experience the firm has had in the past.
- Ask the lawyer about the specific jury trial experience with personal injury or wrongful death claims. Almost all serious personal injury and wrongful death cases which are not settled involve jury trials. If the insurance company does not make a fair and reasonable settlement offer in connection with your claim, you have no choice but to present the case for trial. Even if you do not request a jury trial it is likely the insurance company will.
- Ask the lawyer for: (a) the case number; (b) the county of filing; and (c) the dollar amount of the jury verdict of a few of the larger jury verdicts the firm has obtained in the past. This information is rarely private or privileged. In fact, all the above information is usually a matter of public record at the court house where the trial took place.
- If the lawyer does not give you direct and specific answers to your inquires in this regard including case names, case numbers, and verdict amounts, or states something like “I have a tremendous amount of trial experience…” or “I have tried a lot of cases…” or “I am in court a lot…”, without telling you the specific court case name and number which is filed in the courthouse, the reason may well be that the lawyer actually has little jury trial experience in civil cases or has had very little success with his or her civil jury trials in the past.
THIRD: Find out specifically which lawyer will be handling your file.
- Ask the lawyer whether he or she will be personally handling your claim, or will it be assigned to and handled by someone else in the firm? Remember, there is little benefit in meeting a principal attorney on the first visit if some other lawyer you have never met will ultimately be assigned your file.
- If you want a specific lawyer to handle your claim, insist on including that as a part of your written contract before you agree to sign.
FOURTH: Beware of assembly-line “Settlement Mills”.
- Some lawyers and law firms who advertise that they concentrate in serious personal injury and wrongful death cases may actually have a surprising lack of successful trial experience. These “Settlement Mills” often will sign you up in the hopes they will be able to settle your case without a trial. If they are able to receive fair and reasonable compensation for you by virtue of a settlement and without a trial, it is obviously a great benefit to all involved. However, if the insurance company does not make a fair or reasonable settlement offer, it is possible you may end up going to trial with a lawyer at your side that has very little trial experience (or very little successful trial experience).
- You can help insure you are not signing up with a “Settlement Mill” by following these five tips for selecting a lawyer for a serious personal injury or wrongful death claim. Our office has actually received calls in the past from folks claiming to have been dropped by one or more of these “Settlement Mills” after it became obvious the insurance company was not going to make a reasonable settlement offer.
FIFTH: Illinois does not recognize legal specialties.
- The fact that a lawyer may be listed as concentrating his or her practice in personal injury or wrongful death claims may be of little or no significance. You should be knowledgeable and comfortable with the personality, background, experience and office policies of the lawyer and firm before selecting a lawyer to handle your claim.
For a free no obligation consultation about your personal injury or wrongful death claim, please call Cherry, Frazier, Sabin and Giganti located in Springfield, Illinois at 217-753-4242. When we meet you will be meeting with one of us and one of us will be the principal attorney who is working on your file, not someone you’ve never heard of.
How much do you charge?
For a personal injury, wrongful death, or medical or other professional malpractice case we usually charge a fee that is based on the percentage of the total recovery we obtain for you. This type of fee is commonly known as a “contingent fee agreement.”
Sometimes you will see attorney ads that proclaim “no recovery – no fee.” This slogan describes a contingent fee, since in the contingent fee agreement there can be no legal fee if no recovery is obtained. If you wish, as almost everyone does, we will base our fee on a percentage of your total award. This means that if the claim is ultimately successful, our fees are deducted from the resulting check that is issued by the insurance company, and we do not request that any attorneys’ fees be paid on a monthly or weekly basis. Almost all clients choose a contingent fee agreement as it eliminates any requirement that legal fees be paid to our office while the case is in progress.
Should the claim ultimately be unsuccessful, you will not pay any attorneys fees to our office for our work and efforts on your behalf. Of course if you desire, we will also work on an hourly fee rather than a contingent fee, but it is initially your choice to make.
Many insurance companies would like to see laws passed that eliminate the contingent fee agreement in legal cases. This is because other than insurance companies, oil companies, doctors, hospitals and business executives, very few people would ever be able to afford to hire a lawyer if the contingent fee agreement was eliminated. This would ultimately result in greatly increased profits for insurance companies because once they denied a claim, or made a very low offer on a claim, the injured victim would be powerless to do anything to advance their claim.
Will you try to settle out of court on a personal injury or workmans' compensation case?
Absolutely we will attempt to settle your personal injury or workmans’ compensation case out of court. We normally cannot settle your case if:
- your physician indicates you have not reached maximum medical recovery yet
- your recoverable damages exceed the insurance proceeds and/or ability of the responsible party to pay the claim
- other factors exist which make an otherwise premature settlement offer appropriate.
When the time comes to consider settlement, we will total any medical bills, lost wages, property damage, and any other readily calculable damages you may have sustained and then meet or speak with you about a settlement demand.
We will suggest to you what we think, based upon our experience, is a fair and reasonable settlement demand considering the liability aspect of your case and all of the elements of damage you may have sustained. However, the settlement demand we ultimately make will only be made with your agreement.
After you agree on the amount of a final settlement demand, we will make a settlement demand from the insurance company for the at-fault party. You must remember in a “common law” claim the insurance company usually has no duty to settle with you. If we both ultimately determine the insurance company is being unreasonable, our only real option is to have a judge or jury determine liability and damage issues.
This is where our firm differs greatly from some “settlement mills” that seldom, if ever, actually try a case. If our experience tells us that the insurance company is being unreasonable, we will not get a case of “cold feet”. Instead, we actually look forward to trying the case for you.
What should I do before attending a deposition?
You should make sure you are properly prepared. Illinois Supreme Court Rules 202 through 212 provide that in most cases the parties are permitted to take “discovery depositions” of opposing parties and witnesses prior to the time of the trial of a case.
A discovery deposition is an official court proceeding in which the opposing insurance company attorney has an opportunity to ask you questions and obtain your oral (spoken) answers under oath to those questions. The questions may be about your case and about your life. This includes questions not only about the incident described in your complaint, but also about your education, family, work, earnings, activities, hobbies, and your injuries. The scope of the permissible questioning in a discovery deposition is actually quite extensive. During your discovery deposition you may legitimately be asked questions about any matter that is relevant or is reasonably calculated to learn about relevant information about your case.
Insurance companies make a lot of money. The more claims insurance companies defeat or reduce, the more money they make. Since they are very wealthy, it should be no surprise that insurance companies only hire very bright and able lawyers to defend their claims. If you are not thoroughly aware of some of the major pitfalls or common tactics commonly utilized by insurance company attorneys to defeat your claim before your deposition is taken, you’re legitimate and valuable claim may be reduced to nothing during your discovery deposition.
What should you do if you are involved in a moor vehicle crash?
Each year, thousands of Illinois residents, are involved in motor vehicle crashes. At Cherry, Frazier, Sabin and Giganti we have often been asked, “What should I do if I am involved in a motor vehicle crash?”
When involved in a motor vehicle collision, a driver must stop immediately, remain at the scene, and provide the following information:
- the driver’s name & address
- the name of the owner of the vehicle; and
- the vehicle registration number
- upon request of the other person, exhibit his or her driver’s license; and
- upon request of a police officer, exhibit his or her insurance card
If injuries occur, drivers must also render reasonable assistance, which may include seeing that injured persons are taken to a doctor. If injuries are suspected, call 911 immediately. However, unless you are knowledgeable in rendering first aid, it is often better to leave emergency treatment to qualified professionals. You can actually inflict greater injuries upon persons if you attempt to help them without having the proper training and knowledge.
If you are injured in such an accident, the other driver’s insurance company will likely attempt to take your statement shortly afterwards. Adjusters have been known to seek statements from injured persons even while they are still in the hospital and taking strong pain medication. These insurance adjusters have been trained to take statements and almost certainly have an interest that is in direct conflict with your own. For all of these reasons, it is usually a good idea to consult an attorney before talking to any representative of the other parties’ insurance company.
These steps apply to all types of vehicle collisions, including a motorcycle accident, car accident, train accident, boat accident, truck accident, among others.
What is a products of liability claim?
A products liability claim is a claim that is based upon an injury sustained as a result of a product that was unreasonably dangerous.
Examples of products that have resulted in product liability cases are flammable baby clothing, toxic baby toys, power saws without proper, or any, guards, sump pumps without a grounding devices and firearms without inertia firing pins.
Each year, thousands of persons are injured by defective products. Claims arising from these injuries are known as “product liability” cases.
To recover under a theory of strict products liability, the injured party must prove these three things:
- that an unreasonably dangerous condition or defect existed in the product;
- that the condition existed at the time the product left the manufacturer’s control; and
- that the condition was a proximate cause of the person’s injury or damage.
In general, a product is unreasonably dangerous or defective if it fails to perform in a manner reasonably to be expected in light of its nature and intended function. Products can be defective and unreasonably dangerous in any one of three ways.
- First, a particular item may contain a manufacturing flaw. An example of this would be improperly fastened rivets, which fail under stress, causing an engine to become disconnected from the airframe and resulting in an airship crash.
- Second, a product may be defectively designed. An example of this would be a failure to design effective O rings on a space shuttle engine, resulting in an explosion during flight.
- Third, the product may have an informational defect such as inadequate warnings, directions or instructions. An example of this would be the use of highly flammable materials used in baby clothing without any accompanying notice or warnings to the parents.
Product liability cases can be complicated. If you or a loved one should be injured by a defective product, you should seek experienced legal advice as soon as possible.
What is a statute of limitations?
A statute of limitations is a specific time limit on the right to assert a claim in court. If you or a loved one is injured by the carelessness or wrongdoing of another, your first and foremost consideration is, and should be, obtaining prompt and thorough professional medical care and treatment.
In such a case, when you seek medical attention it quickly becomes obvious that medical care providers are not shy about asking exactly how and when the bill is going to be paid. There is certainly nothing wrong with this, as medical care providers deserve to be paid for their valuable services.
However, medical care providers are not the only ones who should be concerned about their finances. You owe it to your family to make sure they do not have to bear the burden of large medical expenses while the wrongdoer goes free.
The law can be very harsh to those who sleep on their rights. The law provides that you must prepare a claim in writing and file it in court within a specified time after your injury. In some situations you must also prepare and serve a specific and detailed Notice of Injury on the wrongdoer within a certain time frame your claim will be lost even if you later file a claim in court within the applicable time.
The time you have to file a claim varies according to the type of injury, the identity of the wrongdoer, and the age or mental capacity of the person injured. The determination of when a claim should be filed can be very complicated. In fact, legal disputes concerning whether individual claims have been timely filed have reached the Supreme Court of this State.
If you or a loved one is injured by a wrongdoer, a good rule of thumb is to contact an experienced law firm such as Cherry, Frazier, Sabin and Giganti as soon as possible after the injury. In the meantime, do not talk to the wrongdoer or any representative of the wrongdoer’s insurance company.
Are court calendars clogged up with too many personal injury claims?
Absolutely not. The notion that our courts are clogged up with too many personal injury claims is totally false and in most cases, purposefully deceitful.
The fact is that personal injury claims represent only a tiny fraction of cases filed in court. The vast majority of cases on court calendars involve criminal cases and civil cases such as hospitals and medical care providers suing their patients, financial institutions foreclosing on and suing their customers, credit card and other very large financial companies suing their customers, landlords suing their tenants, husbands and wives suing each other for a dissolution of their marriage, and small claims disputes between individuals over personal obligations, property disputes or many of the other issues that one can see decided on television in an episode of “Judge Judy.” The fact is that in the last thirty years there has never been a time where personal injury cases accounted for more than 9% of all cases filed in Sangamon County in any one year.
If personal injury claims make up such a small fraction of all cases filed in court, why then do we often hear false reports that our courts are clogged up with too many personal injury claims? The answer is that many large companies would like to limit or extinguish the right of an injured victim to be compensated in court. These companies and their spin masters seek to turn public opinion against those who have legitimate claims and limit the right of the injured victims to obtain fair and reasonable compensation. Such a result would have the obvious effect of increasing the profits of a wrongdoing company at the expense of the injured victim.
One of the ways in which these spin masters try to sway public opinion to their side is to make up false and outlandish stories about injury claims that never happened and then post such stories on the internet as if they were fact. If you notice a story about a personal injury case that sounds outlandish, check to see if information is given which includes the full name of the case, the court case number, the judge presiding, the county or district where the case was filed, and the date the judgment was entered. If all of that information, which could be used to verify the accuracy of the story is not given, chances are you are reading a story that was hatched by the imagination of a “tort reform” spin master.
Should there be an arbitrary cap or limit upon damage awards?
Just as there should be no arbitrary “cap” or limit upon profits, there should be no arbitrary “cap” or limits upon damage awards to injured victims. The bill of rights adopted by the founding fathers of our country provided that in suits at common law the right of trial by jury shall be preserved. This right of trial by jury was included in our constitution partly because the founding fathers believed that private citizens who heard the facts of a specific individual case would be in the best position to decide all aspects of that case fairly.
However, in our country there now exist groups, usually funded by those who might have to pay a damage award, who would like to interfere with the jury system by placing arbitrary “caps” or limits upon damage awards. These groups often tend to characterize lawsuits as frivolous, injured victims as people who are undeserving of compensation, and their legal representatives as money hungry sharks who are against our free enterprise system.
The truth is that each year many people are injured by the negligence of others and deserve to be compensated for the losses they have suffered. Lawyers who represent injury victims are not against the free enterprise system and are certainly not anti-capitalist or against companies making large profits.
In 2007 one oil company reported profits of 40.6 billion dollars ($40,600,000,000). If these profits are made honestly, and nothing has been presented which suggests they have not, there is certainly nothing wrong with this. There should be no cap or limitation on company profits which are earned honestly and in conformity with the law even if those profits might be breathtaking.
However, if the driver of this oil company’s 18-wheel tanker is speeding, fails to pay attention, or otherwise negligent and kills or injures members of a family going home from church, is it fair for the total liability of that company to be limited to a total of about one hour of the profits that company makes, no matter how much suffering the injured victims must endure?
What is fair and reasonable damage in each particular case should be decided by the judge or jury charged with hearing all the facts and determining those damages, not some one-size-fits-all governmental regulation urged by lobbyists and passed by the friendly representatives to whom those lobbyists may have contributed substantial sums of money.
Is there a problem with the filing of frivolous medical malpractice claims?
Not in Illinois. Despite the constant drum beat from politicians and special interest groups to the contrary, it is virtually impossible to file a frivolous medical malpractice claims in Illinois. Here are the facts:
- The state of Illinois requires (735 ILCS 5/2-622) that where a person seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, an affidavit shall be filed to the complaint declaring that the person filing has consulted with a health professional who:
- is knowledgeable in the relevant issues involved in the particular action
- practices or has practiced within the last 5 years or teaches or has taught within the last 5 years in the same area of health care or medicine that is at issue in the particular action
- meets the expert witness standards adopted by the legislature for expert medical witnesses.
- The affidavit must further state
- that the reviewing health professional has determined in a written report, after review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action.
- that on the basis of the reviewing health care professional’s review and consultation there is a reasonable and meritorious cause for filing the action.
- A report must be filed as to each person accused of malpractice.
- As to any individual defendant the written report indicating there was malpractice must be from a health professional who is licensed in the same profession and with the same class of license as the person who is being accused of malpractice.
- The written report must also identify the profession of the reviewing health professional.
- Finally, and perhaps most importantly, a copy of the written report from the expert who possess all the required qualifications which report clearly identifies the accuser and the reasons why the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists, including the reviewing health care professional’s name, address, current professional license number, and State of licensure, must be attached to the accuser’s affidavit.
- Although there is a provision in this statute that if the accuser has been unable to obtain a consultation with a health care expert because of the statute of limitations, a case can initially be filed without the required affidavit and report, the required affidavit and report must be filed within 90 days thereafter, and the health care professional accused of malpractice has no duty to respond to or acknowledge any complaint until 30 days after having received the required affidavit and report. If the affidavit and report are not filed, the case is dismissed with prejudice without the accused having to respond to the complaint at all.
The above requirements, which must be met in order to pursue a medical malpractice case, are applicable only to medical malpractice cases. No other type of case, whether against an architect, accountant, lawyer, religious leader, car company, oil company, hedge fund executive, or any other entity or person, requires that a plaintiff empirically establish the merits of his case to the court before establishing the merits of his case in court. In view of all the above extraordinary requirements for medical malpractice cases, although it is clear that a medical negligence case might still be lost, it is very difficult to comprehend how a frivolous medical malpractice case could actually proceed.
Attorneys who handle medical malpractice lawsuits have absolutely no financial, professional, or emotional reason to pursue a frivolous case. In fact, the incentives are just the opposite. These cases are handled on a contingent fee basis. Because of the expensive hurdles (see first paragraph above) which are encountered only in medical malpractice cases and the statutory financial relief available only to physicians, the time and cost of pursuing such claims are substantial and the potential recovery reduced.
There is absolutely no reason for an attorney to bear the expense of a meritless claim. One of the ironies related to this issue is that it is attorneys, not doctors, who spend time and money weeding out frivolous cases. For every claim pursued there are at least twenty that are not. This does not necessarily mean the other twenty cases are without merit. Many of them are not pursed simply because the potential damages do not justify the projected cost of pursuing the claim.
What is the Illinois workers' compensation commission?
The Illinois Workers’ Compensation Commission is the governmental body that is empowered to hear disputed claims for injured workers. Initially, a claim is presented to an Arbitrator. Arbitration hearings are held in numerous locations throughout Illinois. Generally the Arbitrators will meet in a designated area once a month. Hearings are generally heard in the county seats of the locality where the injury occurred or the employer is located.
About 400,000 work related accidents occur in Illinois each year and less than 70,000 claims are filed with the Illinois Workers’ Compensation Commission.
Many of the cases pending before the Illinois Workers’ Compensation Commission are settled before a hearing is held. Statewide a total number of arbitration decisions issued in 2006 was 3,899.
After the Arbitrator issues a decision, either the employee or employer can appeal that decision to the Illinois Workers’ Compensation Commission, which is a three member board that hears appeal from the Arbitrators. Approximately 50% of cases that are heard by the Arbitrator are appealed among those that are appealed, approximately 70% are affirmed with no change in the decision of the Arbitrator.
Following the decision of the Illinois Workers’ Compensation Commission, further appeals can be taken by the employer or the employee to the Circuit Court, Illinois Appellate Court, and possibly the Illinois Supreme Court. However, for an injured employee who works for the State of Illinois, the highest level of appeal would be the Illinois Workers’ Compensation Commission and no appeals are allowed to the Court system.
While there is much discussion over the cost of workers’ compensation and the effect of that upon employment in Illinois since 1990, adjusting for inflation the premiums have actually decreased 34%. It is also interesting to note that Illinois insurers writing workers’ compensation policies in the year 1996 experienced a 20% profit on their premiums, or total profits of $355 million. Since 1996 the profit margins of Workers’ Compensation insurance companies have not been published. The latest annual report of the Commission merely states: “The Illinois Workers’ Compensation insurance business in Illinois is profitable and highly competitive” (Illinois Workers’ Compensation FY 2006 Annual Report).
Out of the costs paid under the Workers’ Compensation Act, 42% of the costs represent payments for medical treatment.
What benefits are provided by the Illinois Workers' Compensation Law?
If you have sustained an injury while at work, you may be protected by the Illinois Workers’ Compensation Act. The Act provides injured workers three basic types of benefits.
- The Illinois Workers’ Compensation Act provides medical care benefits. Under the Act, the employer or the employer’s insurance company is required to provide an injured worker with reasonable and necessary medical care to treat the injury or ailment and requires the employer to pay for rehabilitation of an injured employee. It also requires the employer to pay for up to two different doctors of the employee’s choice, as well as the referrals from those two different doctors.
- The Illinois Workers’ Compensation Act provides temporary disability benefits. Under the Act the employer or the employer’s insurance company is required to pay temporary disability benefits during any period of time when an employee cannot work as a result of the employee’s injury. Those benefits usually consist of weekly payments equal to 2/3 of the average weekly wage the injured employee was making at the time of his injury and must continue until the employee is released to work.
- The Illinois Workers’ Compensation Act provides for an award for any compensable permanent disability or injury sustained by the employee while on the job. In most cases, when an employee reaches maximum medical improvement and is able to return to his former employment, the benefit consists of an award for permanent partial disability. If an injured employee is not able to return to their former employment but, rather, can only return to a lesser paying job, the employee may be entitled to receive a portion of the difference between their current earnings and their previous earnings. When an injured employee sustains more serious injuries or is not able to return to work, he may be entitled to receive permanent total disability awards which consist of weekly payments for the rest of the employee’s life.
The Workers’ Compensation Act also provides a variety of other benefits for employees or the surviving family members. The Act is complicated and if you have questions about your rights under the Act, you should confer with an attorney. It is important to realize, however, that whenever you are injured at work you may be entitled to each of these three different types of benefits.
Worker's Compensation - who determines your medical care provider?
If you have been injured in a work accident and are entitled to benefits under the Illinois Workers’ Compensation Act, it is very important to know that you — not your employer — have the right to determine who provides your medical care.
The Illinois Workers’ Compensation Act requires employers to pay for an injured worker’s medical care, but lets the worker choose where he will obtain that care. The employer must pay all reasonable hospital and surgical expenses, and also must pay for reasonable and necessary rehabilitation.
In addition, the Act specifically provides that the employer must pay for reasonable medical care the employee receives from the employee’s own doctor, and any other specialist or other health care provider to which the employee is referred by his own doctor. If the worker subsequently chooses a second physician, the Act also requires the employer to pay for the services rendered by a second physician, if chosen by the injured worker, as well as any other doctors referred by that second physician.
An employer does have the right to have an employee examined by a doctor of the employer’s choice. If the employer requires such an examination, the employer has to pay the employee sufficient money to defray the necessary expenses and costs of travel to and from that employer’s physician.
While the employer does have the right to have an employee examined by a doctor of the employer’s choice, the employer cannot require the employee to receive treatment from that doctor. The purpose for those examinations is to determine the nature and extent and probable duration of the employee’s injury, and to ascertain the amount of compensation which may be due to the employee from the employer. Those examinations, however, are not for the purpose of allowing the employer to determine what doctors treat the employee.
If you have any questions about your rights to seek treatment from your own physicians under the Worker’s Compensation Act, you should contact an attorney.
What medical care am I entitled to under the Worker's Compensation Act?
An injured employee is entitled to receive the medical care of his or her choice. The employer cannot require an employee to receive treatment only from physicians that the employer has selected.
The choice extends to two physicians selected by the employee. A choice is the physician that the employee selects, and if that physician makes referrals to other physicians or other providers.
For example, if an employee receives treatment from his or her family physician and then the physician refers the employee to several other specialists and also for physical therapy that is only one choice by the employee. The employer is required to pay for all medical expenses including physician charges, necessary lab, x-ray and other testing, physical therapy and medication. Often an employee neglects to have his or her costs of prescriptions reimbursed by the employer. These costs can quickly add up and it is important to keep track of such charges so reimbursement can be obtained.
Under some circumstances an employer may also be required to reimburse an employee for travel expenses to receive medical treatment. Particularly if the employee lives in a rural area, some specialist care and treatment may only be available by traveling to other areas. In such instances, the cost of the travel may be a necessary travel expense that the employer must reimburse the employee for.
The employer can require an employee to be examined by a physician that it chooses. While these examinations are called “Independent Medical Examinations,” they are far from independent, as often the physician performing the examination performs numerous examinations for employers or insurance companies. While the employer may require such an examination, it may not require the employee to receive treatment from such doctors. The employer also must pay the employee before the examination and also is required to pay for any wage loss incurred by the employee due to the exam.
The right to be treated by a physician of your own choice that you have confidence in is an important right. Some states do not allow such choices, and employees are forced to receive a level of care that may not be appropriate. If you think that your employer or its insurance company is interfering with your right to be treated by your own physician, you should contact an attorney to discuss the situation.
What if I can't go back to my former job after my work-related injury?
A question that is often asked by an employee who is injured on the job is “what happens if I am unable to return to my former job because of my injuries?”
Under the state law, the inability to return to the former employment is addressed in several different ways.
If the injury prevents the employee from returning to any employment based upon his or her injury, training, experience and age, the employer may be required to pay the employee two-thirds of the employee’s average weekly wage for the employee’s lifetime. Obviously, such an injury is extremely costly to an employee and most likely will be contested.
If the injury does not prevent the employee from returning to all employment, but does prevent the employee from returning to his or her former job, the employer may be required to provide assistance for an employment search, or even for retraining if retraining is necessary to return an employee to gainful employment. The retraining can be short term vocational training, but under some circumstances may even include some college education. During the time the employee is undertaking a job search or retraining, the employer must continue to make weekly payments to the employee of two-thirds of his or her average weekly wage.
When the injury results in the employee returning to the labor force at a pay level significantly below his or her former level, the employer may be required to pay a wage differential. Under this type of award, the employer would be required to pay two-thirds of the wage difference.
When an injury is serious enough to restrict the employee’s return to his or her employment, litigation often results. Many of these matters require the testimony of vocational experts who will render opinions concerning the necessity for retraining, or the likelihood of the employee returning to employment. If a person has received such a major injury, it is important that the injured employee receives the full level of compensation that he or she is entitled to under the workers’ compensation laws. The prospect of being unable to return to work is a most frightening aspect of an injury. The law does provide help for employees facing such a situation, but the employee must vigorously pursue his or her right to receive what they are entitled to.