In this episode Jonathan Rosenfeld chats with Jim Hardy an Attorney at Taxman, Pollock, Murray, & Bekkerman, LLC. Here, they discuss:

Workers Compensation

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Jonathan Rosenfeld:

Hello everybody, thank you for tuning into the personal injury podcast. I am Jonathan Rosenfeld, and today I am joined by Jim Hardy. Jim is an experienced work comp attorney at Taxman, Pollock, Murray, and Bekkerman in Chicago. And we are going to talk today about the preliminary areas of workers' compensation. Jim, thanks for joining me today. I appreciate it.

Jim Hardy:

Thank you, Jonathan.

Jonathan Rosenfeld:

I appreciate you joining me. Could you just give us a little bit of background about your position and your experience with work comp?

Jim Hardy:

Sure. I'm a partner at Taxman, Pollock, Murray, Bekkerman and we're a personal injury workers' comp law firm. I am the head of the department that handles the work comp claims in the office. I'd been doing work comp my entire career and exclusively, that's all I do is work comp cases. I've been involved in the Illinois Work Comp Lawyers Association for about 12 years now. That's the state bar association for work comp lawyers, 700 members strong. And I was a recent president two years ago of the organization after being on the board for about 10, 12 years prior to that. So a lot of experience in work comp and I'm happy to share my information and knowledge.

Jonathan Rosenfeld:

Awesome. So to begin with, I think one of the preliminary questions that a lot of people have, and this is sort of a massive question, but if you could just sort of give us a little breakdown of what workers' compensation is and sort of how the system came to be, that would be great.

Jim Hardy:

Sure. So the work comp system is something that started up back in the industrial age, back in the 1920s and each state has their own law with regard to work comp. It's not a federal system. So each state has an act and in Illinois, they have the Illinois Work Comp Act that lays out the rights and the benefits that injured workers have in the state of Illinois. And so basically it takes over if you're injured while performing your work duties. It takes over from your regular insurance that you might have, the group health carrier, it takes over from them and pays the medical bills. And that's the primary benefit. They pay all reasonable, necessary and related medical bills. And the second benefit in the Illinois Work Comp Act is payment for lost earnings. So in other words, due to the injury, if you have a doctor's note that takes you off work, then the work comp insurance pays you and they pay you a certain percentage of your old wages. And then you get that tax free. It comes to about what you may take home after taxes prior to the work accident.

Jim Hardy:

And the third benefit and the most important one is that you're entitled to and you have a right to a settlement in work comp, and that's based on the nature and extent of the injury, the permanency of the injury. And those are the three basic benefits, but they're all very important. And it's very common that if you have a work comp case, that you can start with an adjuster and the adjuster will give you benefits, but you don't know if she's giving you or he's giving you the correct amount in the benefits, doing the calculations correctly, paying the bills correctly, paying for all the treatment that's being recommended. So that's why, in addition to securing a settlement, that's why it's important to have an attorney on your side helping you through the process.

Jonathan Rosenfeld:

So I guess to begin with, who is covered under workers' compensation? Is everyone covered under workers' compensation under the law?

Jim Hardy:

Almost everybody in the state of Illinois. There are certain exceptions to that and they're rare. In the statute, city of Chicago, policemen and firemen are excluded from the Illinois Work Comp Act because they have their own disability system, duty disability system. Other than that, there are exceptions for independent contractors. If you're, this is quite similar to what happens in the trucking industry where you're an owner-operator, you're an independent contractor and you get paid on a 1099, so you're really your own employee. You have your own company, even though you're working for a trucking company and they're paying you.

Jim Hardy:

So in that situation, the independent contractor wouldn't be covered under the trucking company's work comp insurance coverage, but frequently the independent contractor will have their own policy that they take out for themselves and they'd be covered under that. And then other than that, pretty much everybody is covered except for some exceptions, for family farm workers and so forth. But it's pretty wide ranging, if you're performing work for an employer and you're getting paid for it, even if it's cash, they are supposed to have work comp insurance that covers you under state law. So it's pretty wide ranging, if you're working in Illinois getting paid for your work, then you're likely covered.

Jonathan Rosenfeld:

So this covers part-time employees, it would cover someone who's got a summer job or something as well?

Jim Hardy:

Sure. Yeah. Part-time employees you're covered doesn't matter, first day on the job, covered, doesn't matter. That's fine. You don't have to be there a certain length of time. You could even, a situation where you're doing temporary work, you're only going to work for somebody seasonal, for the summer or something like that. You're still covered because you're an employee and you're on the books there as an employee. And they, under state law, that employer has to cover you for the work comp insurance. So that's how it works and it's a fairly good system.

Jonathan Rosenfeld:

Under the law in Illinois, employers are required to carry workers' comp insurance. Is that correct?

Jim Hardy:

That's correct. If they don't, then the Illinois Department of Insurance can fine that employer and they do enforce that pretty heavily. And there are fines for the number of days that you're going without insurance. If the lapses, the employer can get hit with penalties and fines for that, or if it's an employer that simply does not, refuses just to carry work comp, the state of Illinois can come in and shut that business down until such time that they do purchase and buy a work comp insurance policy. They're pretty strict so it's rare to find a situation where the person is not covered when they're supposed to be.

Jonathan Rosenfeld:

Okay. So in Illinois, everyone's required to have work comp insurance. And I guess obviously, when we talk about workers' comp, we're typically talking about, for the most part, we're talking about an acute injury, an accident for the most part. And this could be a fall, this could be an auto accident. This could be really anything that an employee is doing in furtherance of their employment, correct?

Jim Hardy:

That's correct.

Jonathan Rosenfeld:

That's basically the encompassing definition of work comp coverage in Illinois?

Jim Hardy:

That's correct. And that was the idea behind the law is to help injured workers who are performing their duties and they're injured. And so that they're not just, in the old days before they have work comp, of course they were just left hanging and there was no insurance, of course. Back in the old days, somebody would get hurt, they just keep working or they would, if they had any money to go to a doctor, they try and go to a doctor, but there was no safety net. So then the states came in with these laws and it's precisely that, to help people who are injured at work. And there are certain rules about what's covered. Some things, it's important to get an attorney to check, because some things that you think might not be covered under a work comp or some activities at which you were injured might not be covered, but they are.

Jim Hardy:

For instance, the classic parking lot cases. If you punch out and you're walking to your car in the company parking lot where you've been designated to park at and you slip and fall on ice on the way out there, or trip and fall on some landscaping or something like this, that's covered under work comp, because you're still covered. You're still in the furtherance of the employer and performing work duties because you have to park your car in order to help your employer by going into their facility to work. So the work comp law says that you're covered as long as you're parking in an employee owned and maintained and designated parking lot under work comp. But that's interesting, some people would think, oh, I punched out already, I'm not covering, but that's why it's important to contact an attorney to see if there's any angle there. And sometimes people are covered even when they think they're not.

Jonathan Rosenfeld:

One of the other areas I know in work comp that sometimes people may not be aware of is, chronic injuries or overuse injuries. If you're lifting a sledgehammer, breaking concrete for years on end and you develop some tendinitis or you develop some chronic condition, that's something that's covered under work comp as well. Correct?

Jim Hardy:

Yes, that's true. It doesn't have to be a specific event. It can be continual or cumulative injury or what they call repetitive trauma injury. The classic example of that of course, is the carpal tunnel. Or if you're an electrician and you're pulling wire all day through conduit, you're gripping and pulling, that's a classic and they commonly develop carpal tunnel syndrome. That's covered even though there's not one specific event where they injure that wrist. It's repetitive, that's still covered under work comp, as long as the other requirements are met with regard to notice. As soon as the symptom start, you have to give notice to the employer. And actually there's a deadline for that notice to the employer of 45 days. It's a little bit different with a repetitive trauma because it's that 45 days from the day that you stopped doing the repetitive work. In this case, they electrician pulling the wire. But yeah, those repetitive trauma cases can be compensable. They're not excluded. And a lot of it depends on the doctor who's treating the injured worker. They give a causal connection opinion and say, yes, medically, I believe what this person was doing for that length of time could cause this ailment of carpal tunnel or cubital tunnel or whatever repetitive trauma ailment they have. But those are covered. Yes.

Jonathan Rosenfeld:

Now, one of the areas that I know your firm does quite a bit of work with, you guys handle a lot of construction accident cases, work-related injuries where someone's injured on a busy construction site, anywhere in Illinois or across the Midwest. In those situations, when you have someone, let's just talk a little bit hypothetically about an active construction site. Someone is, you may be a carpenter or something and you may get hit by falling debris, may fall from the roof from a different contractor, or a board may fall from a building. In a situation like that, obviously the employee would be covered under work comp. However, they also may have a separate case sometimes referred to as a third-party case. Obviously you handle the work comp case, there's other attorneys in your office who handle the third-party case. But a lot of times, in my experience I've seen employees sort of completely at a loss for the fact that they may have two separate cases. Can we talk a little bit about work comp in relation to a third-party case.

Jim Hardy:

Sure. So in any work comp case that we bring into the office, we always analyze it to see if there's any potential third-party case, what you were discussing. And that's a negligence case, a civil lawsuit that could be filed against a third party, meaning somebody other than the employer. But a third party would have to be negligently responsible for causing the accident and therefore the injury. So the construction site's a perfect example of that. So you have ABC Carpentry, they're hired by XYZ General Contractor to come in and do a couple of weeks to work on that project. And the carpenter, like you say, gets hit by a board that fell from up above, it was dropped by an employee of XYZ General Contractor, that's not a coworker there.

Jim Hardy:

So that carpenter then who was injured would have a work comp case that I would handle and then we do the immediate work of getting the benefits started, the off work, like we talked about, the medical bills paid and authorized, like we talked about. And then in the meantime, our firm would also start up a third-party case against that general contractor and the employer of the employee who dropped board on the carpenter. So you have two parallel concurrent claims going in the same law firm, one workers' comp that's filed at the Work Comp Commission and then one a personal injury or a negligent claim, a formal old fashioned lawsuit that's filed in circuit court. So you'd have the same law firm, two different lawyers handling that same accident date. And it's important to have a work comp attorney start the case up because then they will automatically have a look at the facts to see if there's any potential third party.

Jim Hardy:

Sometimes we find potential third-party cases where the injured worker would never think that anyone else would have been negligently responsible for the accident other than himself or the employer. So it's important to have us look at it to see if there is that angle, if there's any potential lawsuit against the third party, because that can increase the settlement value. And there's a short-term aspect of it, which is the work comp. You get the weekly benefit check going, you get the medical bills authorized and the treatment authorized and the bills paid. And then long-term, then we work on the third-party case to see what we can do about establishing a case against the negligent third party. And then we can settle both cases and you get two settlements from the two cases. And it's more beneficial to the injured worker.

Jim Hardy:

But without having a good law firm that handles both types of claims, work comp and third-party, like our firm does, you really put yourself at a disadvantage of missing some potential settlement recovery there. So it's a very important to look at. And it's not just a construction scenario. You can see these, the other classic example as you're driving for work, UPS driver, he's hit rear ended by a semi-truck. He has a work comp case with the insurance for UPS and then a separate personal injury case against the truck driver and the trucking company that hit him. But these are all very good examples.

Jonathan Rosenfeld:

And those third-party cases, you can recover benefits. You talked about a little bit, but you can recover benefits that are not necessarily covered under the Work Comp Act in Illinois.

Jim Hardy:

That's correct.

Jonathan Rosenfeld:

For example, you can recover pain and suffering. You can recover economic and non-economic damages that are not necessarily covered under the Work Comp Act in Illinois. So all the more reason to have an attorney really do a very thorough investigation to really make sure that all parties are held fully accountable for both the work comp perspective as well as the third-party case. Correct?

Jim Hardy:

Absolutely. And then you're covered whatever the rights are under the state law and the federal law and the circuit court laws. You're covered for all the benefits that you're entitled to when we maximize the value for you.

Jonathan Rosenfeld:

Now, I wanted to transition a little bit and talk about what an employee should do. If they're hurt on the job. Every single day millions of people go to work and statistically there's a fair amount of people who get hurt at work every day. And when you're doing training for work, they may teach you how to punch in and punch out and they may teach you about company protocol and everything else, but they don't tell you necessarily what you should be doing if you're hurt. And so a lot of people, an accident may happen, they may come home. They may, ah, my arm hurts, my shoulder hurts and they're sort of at a loss of what they should be doing. And I guess to begin with, if you are an employee and you're hurt at work, what would you suggest that that person do?

Jim Hardy:

That's a very good question. And it's very important too, because what the injured worker does initially after the accident is very important because that can impact the entire case months and years down the line. So if you're injured at work, it's absolutely essential that you give notice to a supervisor of the incident and the injury. What happened, what body part you injured as soon as possible. I always tell people that they should give notice immediately, or if not, before they punch out for the day, because once you go home, you hurt yourself during a shift, once you punch out and go home, then it becomes problematic because then the employer and the insurance company can say, after you tell them the next day or the next week that you got hurt back on last Tuesday, they can say, well, you didn't tell us the day you got hurt, how do we know you didn't get hurt at home or over the weekend or that night after you got home. So it opens up potential for the insurance company to deny the claim. But it's essential to give notice as soon as possible.

Jim Hardy:

There is a 45-day notice requirement. No matter how viable the work comp claim might've been, if you don't give notice to a supervisor until after 45 days, then the claim is barred under the state law. But the longer you wait to give notice, the more ammunition the insurance company would have for the work comp carrier to deny and dispute the case and the accident and how it happened and so forth. I always tell people, give notice as soon as you can immediately, if not, before you punch out that day and preferably do it in writing or have a witness there. If you go up to the supervisor, make sure you bring somebody with you who can witness the notice being given verbally to the supervisor. Then the supervisor can't say, well, I don't remember anything about that day or anyone telling me anything about a work injury. So that's very important.

Jim Hardy:

And also if you're injured, get treatment right away, don't put it off, go to your family doctor. Go to an immediate care, if need be. Go to the emergency room if need be. But the earlier you get treatment and get the accident documented in medical records, the better off the case will be. And I know a lot of people, they want to see if it gets better and put it off and all that. But that's fine, if it does get better, that's great. But you should still see a medical professional as soon as possible if you think something's wrong. And people know their own body, if you think something's not right and you hurt yourself, get it checked out. If in the next week you feel a hundred percent and fine, that's great, but at least it's documented if need be. So notice as soon as possible, preferably the same day and then medical treatment as soon as possible as well. Those are the two keys of what an injured worker should do to preserve their rights under the work comp law.

Jonathan Rosenfeld:

Now, in some situations, after an accident happens, someone may get medical treatment and they maybe start getting some benefits from their employer if a doctor takes them off work. They may start getting some temporary total disability checks if their off work and everything from their employer. But that does not necessarily mean that a work comp case has been filed. Correct? in other words, giving your employer notice, it's not the same as filing a work comp case, correct?

Jim Hardy:

Right. That's correct. The employer, once they have notice of the injury, they are supposed to report it to their work comp carrier, but that doesn't always happen. Sometimes the employers, they drag their feet and see if the person gets better right away or if the person just puts it through their regular insurance so they don't have to deal with it and claim it as a work comp case. But the only way to formally have a filing at the Work Comp Commission, which is the court for work comp cases in Illinois, is to have an attorney file a what they call an application, an application of claim at the Work Comp Commission. Prior to that, you don't have a formal claim and in order to get a settlement, you have to have a claim on file at the Illinois Work Comp Commission, or you don't get a settlement at the end of the case. And that's why it's important to, after you give notice, and after you get medical treatment as soon as possible, then you contact Jonathan Rosenfeld, the Rosenfeld injury lawyers, to start up the process of getting legal representation.

Jonathan Rosenfeld:

And I think, just so everyone listening is a hundred percent clear, the way attorneys handle work comp cases in the state of Illinois is on a contingency fee basis. The state regulates what attorneys can charge people. It's not a, Hey, I like you, you get a discount. I'm not a big fan of yours, you're paying more. It's a straight fee schedule for work comp cases. And so, you as an attorney only get a fee when you're successful in getting benefits for that injured worker, correct?

Jim Hardy:

That's correct. Yes. So there's no hourly rates or there's no upfront fee that you have to cut a check to the attorney for at the beginning of the case. It's strictly a contingency fee and in Illinois, the state law caps that fee for attorney fees and work comp at 20%. So that's 20% of the settlement that we could secure at the end of the case when you're done treating. And that's the settlement for the nature and extent of the injury or the permanency of the injury. And that 20% is taken right out of the settlement from the insurance company. So you don't have to worry about paying anything upfront or watching, we don't bill by the hour, you don't have to watch that. We maximize the value of the work comp case and the fees are 20% of that. If there is no settlement, then you walk away, you wouldn't pay us anything. So that's how it works, strictly contingency fee basis.

Jonathan Rosenfeld:

And these settlements and the attorney's fees, they're approved by an arbitrator who's essentially the judge assigned to the case. So it's just one more safeguard in place to make sure that everything is done properly. Correct?

Jim Hardy:

Right. That's true. Yeah, any settlement that we secure has to be approved by the work comp arbitrator assigned to the file at the Work Comp Commission. They stamp it as approved. And with the settlement, it's interesting to note that if you don't have an attorney, the insurance adjuster on the file for the work comp carrier may pay the medical benefits. They may pay the off work, you don't know if they're paying their correct amount or anything, but then they commonly, if you don't have an attorney, they won't offer you a settlement. They won't advise you of your right that you're entitled to a settlement. They have no obligation to do that. And frankly, it's their job not to because the insurance company's job is to keep money in their pocket and the more they pay out on the claim to the injured worker then the less money they have.

Jim Hardy:

So the goal for the insurance company is to keep the money and not give it to the injured worker. So that's commonly what happens is that they won't get a settlement. If the injured worker doesn't have an attorney, they might get an offer, it's rare, but that offer's going to be pennies on the dollar if you don't have an attorney because the adjuster will just float you a low settlement. People don't know what the true value might be and they might just believe the adjuster when she says, this is what you get, take it or leave it, sign on this line and take the check. But you're leaving a lot of money on the table without an attorney.

Jonathan Rosenfeld:

So that is great information. We are going to talk about settlements and work comp cases in a new podcast, but this was great information. I think anyone who is injured on the job certainly would do themselves or their family of service in contacting you and just talking about their case. Again, you obviously work on a contingency. So if someone calls or asks you a question, there's no cost or anything to do that. But this was great information, I thank you for joining me today. I appreciate it.

Jim Hardy:

My pleasure, Jonathan. And all right, thank you for the opportunity. Glad to help.