Illinois Workers Compensation Lawyer Blog

Illinois courts awards a portion of MSA funding to ex-wife

Wed, 18 Apr 2012 15:03:13 -0500

The Illinois Appellate Court ruled that the funds in a Medicare set-aside (MSA) are part of a workers' compensation settlement thereby allowing an ex-wife to a portion of the MSA.

The claimant was injured in a work accident in 2008. He filed a workers compensation claim and was married at the time of the filing. The claimant filed for divorce the following year and a dissolution of marriage was granted in August 2010. The divorce agreement awarded the ex-wife 17.5% of the net proceeds of the claimant's workers compensation settlement.

A settlement was reached in December of 2010. A Medicare set-aside (MSA) in the amount of $70,000 was established to cover future medical expenses associated with the claimant's original injury. Both parties agreed that it wasn't necessary to secure approval of the set-aside from CMS.

The dispute addressed by the courts was whether the MSA was in fact, considered part of the net proceeds of the claimant's workers' compensation claim.

The Illinois Appellate court subsequently ruled that the ex-wife was entitled to 17.55 of the MSA despite the fact the proceeds were intended for future medical expenses and that the establishing of the MSA was to protect Medicare's interests.

The courts determined that the claimant was the sole beneficiary of the MSA, not Medicare.

In its opinion, the courts wrote:

[The claimant] presents no evidence that the funds in the MSA are not ‘net proceeds.’ There is no question the money is his. The settlement was between [the claimant] and [the employer]; [The claimant] was given the money. It is not Medicare’s or [the employer’s] money. The MSA clarifies how much of the settlement is intended to pay for future medical costs associated with the injury and places that amount in a separate account so that it can be shown that those funds were used to pay [the claimant’s] medical costs caused by the injury. Since the dissolution decree defines ‘net proceeds’ to include payment for future medical costs, the funds in the MSA are net proceeds. The trial court correctly determined that [Ex-Wife] is entitled to 17.5% of the entire settlement.[fn12]

The dissenting opinion came from Justice McDade. Justice McDade believes that the MSA should not have been included as part of the claimant's "net proceeds" due to the fact that the agreement "expressly provides that the MSA funds are not included in total amount of the settlement."

Judge McDade went on to say that the awarding of the 17.5% to the ex-wife was a violation of public policy since Medicare was the sole beneficiary of the MSA, not the claimant. Justice McDade states "permitting the ex-wife to take 17.5% of the MSA funds would violate public policy and that such diversion of funds not only harasses logic, but it also cuts against the grain of the plethora of legislative authority has has been enacted since 1980 in effort to curb skyrocketing health care costs and preserve the fiscal integrity of the Medicare system."

Illinois Judge orders release of prison guards tests for carpal tunnel syndrome

Fri, 24 Feb 2012 14:09:22 -0500

After hearing arguments by Central Management Services, The Illinois Attorney General's Office and the Belleville News-Democrat, Cook County Circuit Court Judge, Michael Hyman ordered the release of medical records of prison guards at Menard Correctional Center who received disability payments for carpal tunnel syndrome, under the Illinois Workers' Compensation Act.

Central Management Services, the agency that processes workers' compensation claims for state employees, argued that the records were proprietary and should not be released to the public.

An attorney for the Belleville News-Democrat argued that the 50 nerve conduction velocity tests administered to the guards should be turned over once the identification of the patient was removed. .

The newspaper wants the medical records analyzed by medical professionals to determine why more than 230 prison guards from one prison would develop carpal tunnel syndrome from the act of unlocking and locking prison security doors.

The guards, employed by the Menard Correctional Center, received workers' compensation benefits which totaled more than $10 million.

The News-Democrat began investigating these claims in January of 2008. According to the paper, 2 private consultants have been retained by the State of Illinois, who examined the locking mechanisms at Menard. The consultants came to the conclusion that the simple act of locking and unlocking the mechanisms would not have caused carpal tunnel syndrome.

Federal court approves a $6.2 million settlement against sears

Thu, 11 Feb 2010 14:41:10 -0500

A Federal court recently approved a ADA payout by Sears in the amount of $6.2 millions. The EEOC filed a lawsuit aganst Sears alleging that the Sears' policy of terminating employees instead of providing them with a reasonable accommodation for their disabilities was in violation of the Americans With Disabilities Act.

The case was filed by the Equal Employment Opportunity Commission on behalf of John Bava, a Sears service tech. Bava was injured when he fell down a flight of stairs while at a customer's home. Bava's took leave according to Sears' rules and while he was still disabled by his injuries, attempte, on several occasions, to return to work. Sears would not accommodate his physical restrictions.

Instead, after Bava exhausted his leave time, Sears terminated him.

Recession expected to have mixed impact on Workers' Compensation insurance market

Thu, 11 Jun 2009 16:09:08 -0500

Harry Shuford, the chief economist at the National Council on Compensation insurance moderated a panel of insurance industry leaders. The panel addressed the issue of the effect the recession would have on Workers' Compensation. The panel concluded that a recession tends to place downward pressure on exposure. Their findings were told to attendees during the Casualty Actuarial Soeciety's ratemaking and product management seminar.

According to Shuford, recessions cause a decrease in employed workers. Wages continue to grow but at a much slower pace.

"In the first two of the three most recent recessions, claim frequency dipped dramatically," he said. "In the most recent recession of 2001, the downturn was already under way, and there was an increase in the rate of decline."

Berwyn mayor stops firefighter's from exercising while on duty

Thu, 12 Feb 2009 16:03:04 -0500

Citing the rising cost of workers' compensation claims from city workers, Berwyn Mayer Michael O'Connor has made the decision to ban firefighters from using exercising equipment while on duty.

According to O'Connor, Berwyn has paid $6 million in claims for all municipal deparments.

Stephen Petergal, 51, sustained a hernia while walking on a treadmill at the firehouse. Shortly thereafter, O'Connor banned of the use of exercise equipment to prevent further injuries from occurring.

Petergal is the first firefighter to sustain an injury on city exercise equipment. The Berwyn Firefighters Union Local 506 said the 24 hour shifts make it difficult for their members to maintain a regular exercise program.

A grievance has been filed against O'Connor.

Our thoughts: An out of shape firefighter runs a much larger risk of sustaining a serious injury. No, other city workers don't exercise while on duty, but how many other city workers run into burning buildings, up countless flights of stairs wearing hundreds of pounds of equipment? What was the mayor thinking?

OSHA hits Illinois painting company with 17 citations

Mon, 02 Feb 2009 10:57:21 -0500

Certified Painting Company in Alsip Illinois was fined $225,000 resulting from 17 citations by OSHA.

OSHA cited Certified painting for 8 willful and 9 serious violations involving workplace safety.

According to OSHA, Certified Painting was cited for allegedly failing to provide adequate carbon monoxide monitors, to provide and make sure that their workers were wearing protective clothing, to provide hygiene facilities and to ensure their employees were following the proper hygiene procedures after being exposed to lead and other hazardous materials. They also failed to provide US Coast guard life jackets and have available a lifesaving skiff where their employees were working over or near water.

They were cited for not providing fall protection equipment on scaffolding and for not maintaining a safety and health program. They failed to conduct regular inpsections of their job sites by a qualified person and failed to properly train their employees being exposed to hazardous materials.

Certified Painting Company performs industrial construction throughout the State of Illinois

The company has 15 days to contest the citations.

Doctor Proposes Nonpartisan Workers' Comp Rsearch Center

Thu, 30 Oct 2008 17:52:19 -0500

Dr. David Fletcher, an Illinois occupational medicine specialist, has asked the University of Illinois to help establish a new source of impartial information and research on Illinois Workers' Compensation issues.

Dennis Ruth, who resiged as Commissioner earlier this month thinks it's a good idea. "One of the things we see in complaints about the system is there is not a lot of research on workers' comp in Illinois. You get either anecdotal information or limited information...from a special interest group."

The "antiquated computer system" limits the Illinois Workers' Compensation Commission's (IWCC) abiltiy to do research. "So something like what (Fletcher) has proposed could be very helpful in addressing issues. It would be good to have information provided by someone with no particular axe to grind."

Dr Fletcher told WorkCompCentral that he has conducted some "preliminary discussions" with Robert Rich the director of the university's Institute of Government and Public Affairs in Urbana. Dr. Fletcher believes that a center should be established in order to conduct impartial and objective studies on Illinois workers' compensation.

"I believe there is a need for nonpartisan studies and informaton on our workers' compensation system," Fletcher said.

Dr. Fletcher, citing "discrepancies in studies by organizations such as the National Council of Compensation Insurance and the Workers' Compensation commission, has become frustrated. Dr. Fletcher believes that objective studies from a netural source in the state would benefit all those involved in the Illinois workers' compensation system, thereby reducing litigation.

To read the complete article click here

Workers' Compensation Laws Too Restrictive for Mine Workers

Mon, 27 Oct 2008 14:21:22 -0500

Officials announced Friday that a study was going to be conducted into why coal miners decline free x-rays to check for black lung disease.

According to the National Institute for Occupation Safety and Health several states have low rates of participation by coal miners with fewer than one-third choosing to receive the free x-ray.

Steve Earle with the United Mine Workers of America union, says that, " Workers' Compensation laws have become so restrictive that most miners diagnosed with the debilitating disease don't qualify for benefits." As a result, the miners skip the health screening that could have them be considered "damaged goods" by employers.

"What's the need in doing it," asked Michael Cardell a miner from Clay Kentucky who has worked in the mines for 30 years. "If you've got it, they won't do nothing for you."

According to Thomas Moak, a Coalfield lawyer, the politicians have made it too hard for afflicted miners to qualify for benefits. "Right now, there are very few benefits miners can receive if they test positive," says Moak.

Under current Kentucky law, miners diagnosed with black lung, have to be examined by a panel of five doctors before benefits can be awarded.

Click here to read the full article

Workers Comp suit against trucking firm can proceed

Fri, 24 Oct 2008 14:41:23 -0500

The U.S. 6th Circuit Court of Appeals reinstated a lawsuit brought by Michigan workers against their Illinois based employer, Cassens Transport Company. The lawsuit alleges that the employer, the Workers' Compensation insurance company, Crawford & Company and physician Dr. Saul Margules, committed mail fraud, wire fraud and violated the federal Racketeer Influenced and Corrupt Organizations Act or RICO Act.

The workers claimed they were fraudulently denied Workers' Compensation benefits.

Attorney Marshal Lasser, an attorney in Southfield has been representing current and former employees Paul Brown, William Fanaly and Charles Thomas. Lasser was stunned and pleased by the Court's ruling. "I've been fighting this battle for many, many years," Lasser said. "There are a lot of people who I believe are suffering because of unlawful denial of workers' comp claims, for which there is not relief under Michigan law."

The ruling however, does not mean the workers have won their case. It means the lawsuit can proceed in a Detroit US Disctrict Court.

Attorney, Janet Lanyon, who represented the defendants in the case, could not be reached for comment.

Unfair Employment Practices: Starbucks facing another complaint

Thu, 16 Oct 2008 14:55:20 -0500

The Detroit regional office of the National Labor Relations Board filed a complaint against Starbucks Corp, alleging unfair labor practices stemming from an investigation into a charge made by Cole Dorsey, an employee of Starbucks

In the complaint, Dorsey is alleging that he was was fired from his job at Starbucks for his "sympathies for and activities on behalf of the Starbucks' workers' union." Dorsey is a member of the Industrial Workers of the World Union. Dorsey had been given two prior disciplinary warnings by the store manager.

Stephen Glasser, the regional director at the Detroit office states,"We have reasonable cause to believe there may be a violation here when Starbucks terminated Dorsey."

The board has requested that Starbucks give Dorsey his job back, rescind the two disciplinary warnings, post notices in the store informing workers they have the right to join the union and pay Dorsey any lost wages resulting from his termination.

Starbucks claims that Dorsey was fired as a result of his being 30 minutes late to work and that the disciplinary action taken against Dorsey was related to his being tardy. The charge that he was fired due to union activity is "without merit," according to a Starbuck's spokesperson.

Starbucks had until October 14 to respond. If they are unable to settle Dorsey's complaint, the case is set for trial before an administrative law judge on Nov. 20.

About 200 current and former Starbucks' workers are represented by the union.

Fatal Work Injuries National Census

Wed, 01 Oct 2008 21:56:41 -0500

The Bureau Of Labor Statistics released a national census of fatal work injuries in 2007. The number of fatal work injuries in 2007 totaled 5,488 down 6% from 2006 when 5,840 fatal work injuries were reported. While these results are considered to be preliminary, the 2007 figure is the lowest annual preliminary total since 1992. The Bureau of Labor Statistics will release the final results in April 2009.

Based on this report, the rate of fatal injuries in 2007 was at a rate of 3.7 fatal work injuries for every 100,000 workers down from the final rate of 2006 which was 4.0 fatal work injuries for every 1000,000 workers which, at the time, was the lowes annual fatality rate ever reported.

To read the entire Census click here.

Injured Workers' Benefit Fund collects record amount of fines

Tue, 30 Sep 2008 21:32:28 -0500

The Illinois Workers' Compensation insurance compliance division collected record fines from employers operating without Workers' Compensation insurance. Fines collected totalled $1.8 million. All of the money collected will be used to provide benefits to injured workers employed by uninsured employers.

To understand the eligibility requirements to receive benefits check out the Injured Workers' Benefit Fund page at the Illinois Workers' Compensation Commission web site.

The Illinois Workers' Compensation Commission has developed a form to which all individuals claiming to be eligible for assistance, can fill out and sent to the Illinois Workers' Compensation Commssion:

ATTN: Injured Workers' Benefit Fund Claim
Division of Insurance Compliance
Illinois Workers' Compensation Commission
100 W. Randolph St. #8-200
Chicago, IL 60601

Workers Compensation benefits awarded to office worker who falls out of chair

Tue, 30 Sep 2008 20:40:42 -0500

The Illinois Workers’ Compensation Commission awarded 12 weeks of temporary total disability and $52,075 in medical expenses to an office worker who injured her wrist when she fell out of her chair at work.

An employee’s injury while sitting in her work chair and stretching her arms may be compensable, where the employee must spend her day seated at a desk to perform her duties and her employer encourages employees to perform ergonomic exercises to release tension.

The claimant was working in the defendant’s business support center when she fell out of her chair and injured her wrist. At the time of the accident, the claimant was stretching both arms over her head. The back of the chair released and went out from under her. She fell face down, injuring her right wrist. The chairs had casters, were adjustable, and were made of mesh backs and seats. The floor was carpeted in standard industrial, no-nap carpet. Prior to the accident, the defendant’s human resources department sent out and e-mail encouraging employees to stretch and do ergonomic exercises to release tension in the neck and shoulders. The claimant testified that the chair was not broken and there was no defect in the floor. The arbitrator awarded benefits, finding that the accident occurred as the claimant was performing acts she could reasonably be expected to perform, using equipment provided by the defendant. She was using the chair in a way the defended anticipated and even encouraged. The stretching exercises were meant to relieve tension in the neck and shoulders, making employees more comfortable and more productive. Therefore, the exercises were of benefit both to employees and the employer. As the claimant was required to spend her day seated at a desk answering the phone and using a computer, she was at an increased risk of injury. The chair was integrally related to the fulfillment of her work duties. Also, the arbitrator pointed out that because workers’ compensation is a no-fault system, the claimant was not required to prove that her chair was defective in order to be entitled to benefits. Upon review, the Commission affirmed and adopted the decision of the arbitrator

An injured worker’s retaliatory discharge claim isn’t block by governmental immunity

Tue, 30 Sep 2008 19:54:23 -0500

The Illinois Supreme Court held that the Local Governmental and Governmental Employees Tort Immunity Act does not provide a local public entity with immunity from an employee’s claim of retaliatory discharge for exercising his workers’ compensation rights.

The Illinois Supreme Court reversed the appellate court’s decision dismissing a worker’s retaliatory discharge claim. The defendant, a park district, was not immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act.

The local government who retaliates against an injured worker who exercising his workers’ compensation rights does not have immunity under the Local Governmental and Governmental Employees Tort Immunity Act.

Workers’ Compensation benefits awarded to employee who wipes out while exiting cooler

Mon, 29 Sep 2008 20:06:20 -0500

The Illinois Workers’ Compensation Commission awarded 28-3/7 weeks of temporary total (TTD) disability and $19,596 in medical expenses, subject to the medical fee schedule, for an employee’s back injury sustained in a slip-and-fall accident at work.

When a food preparer is entering and exiting a refrigerated space while trying to meet her employer’s requirements and working in a busy, crowded environment, it’s reasonable to infer that the claimant is exposed to an increased risk of slipping at work.

The injured employee testified that she was walking out of a cooler at work when she slipped and fell, injuring her back. She stated that the area of the accident was busy and crowded and she did not know what she slipped on. Based on the claimant’s testimony, as supported by the medical records, the arbitrator found the claimant’s injuries arose out of and in the course of her employment and awarded benefits. The Commission clarified the temporary total disability and medical awards, and otherwise affirmed and adopted the decision of the arbitrator. A Commission majority noted that the record supported a reasonable inference that the claimant’s fall at work stemmed from a risk associated with her employment. The claimant’s job involved food preparation. Although she stated she did not know what caused her to slip, she indicated that “there were a lot of people that day,” that she was going in and out of the cooler, and that “they were ordering [her] to bring the food” before she fell. Based on this evidence, the Commission found it reasonable to infer that the claimant was exposed to an increased risk.

In a dissenting opinion, Commissioner Lindsay noted that the claimant did not know what caused her to slip or if anything was on the floor. The dissent noted that the presence of lots of people in the restaurant, as pointed out in the majority opinion, did not explain why she slipped. Without such explanation, the claimant failed to prove her injuries arose out of her employment