The Illinois Appellate Court recently reversed benefits for a worker injured in a parking lot fall. While we obviously support injured workers fully receiving any and all benefits prescribed by law, based on prior IL Supreme Court rulings and the specific facts of this case, the Appellate Court probably got this one correct. It is important to keep in mind an injury in a parking lot will only be compensable utilizing the following factors:
(1) whether the parking lot was owned by the employer;
(2) whether the employer exercised control or dominion over the parking lot;
(3) whether the parking lot was a route required by the employer.
Otherwise, falling on your way into work just doesn't count under the law.
A link to the case is below:
If an employer uses fingerprints for biometric timekeeping, is that a violation of llinois' Biometric Privacy Act, or is an employee's privacy claim preempted by the Illinois Workers' Compensation Act? While it is hard to believe a privacy breach is the kind of "accidental injury" contemplated under work comp, the Illinois Appellate Court, First District, is taking up the issue. Should be interesting:
Incentive to Deny
In what highlights a key difference between personal injury law in Illinois and workers' compensation law, the Illinois Appellate Court, Workers' Compensation Division, issued an opinion today in Perez v. IWCC, 2018 IL App (2d) 170086WC. The decision can be found here.
The general issue in Perez was whether the employer should have to pay the "fee schedule" rate for the disputed bills (the amount set by the legislature), or whether they only had to pay back what Petitioner's spouse's insurance paid. For example, say a medical bill is originally $10,000. The workers' compensation fee schedule rate may be $7,500 for that bill. But the spouse's health insurance may have a lower negotiated repayment rate of, say, $4,000. Using my figures as the example, Perez wanted the employer to have to pay the $7,500 as part of the trial award and not just reimburse the spouse's group carrier the $4,000. The net result is that Perez would have personally received the $3,500 difference.
Not fair, you say? Not fair said the Appellate Court as well, calling that outcome a "windfall" to the claimant. Instead, the Appellate Court reiterated its decision in the Tower case that the only thing which matters is the bills are paid - not by whom or for how much. As long as the employer takes responsibility for reimbursing the private carriers, that satisfies the law.
However, in personal injury law, the Illinois Supreme Court has previously found an even bigger "windfall" to be lawful and fair. In Arthur v. Catour and Wills v. Foster, the Supreme Court found the liable party should not benefit from the injured's party's available insurance. Meaning, as long as the plaintiff can prove the original bills are usual and customary charges (the $10,000 I mentioned above), plaintiff can recover the full $10,000 - not just what insurance paid. The same is true of Medicare or public aid payments. The reasoning is that the party who should benefit from the plaintiff's insurance's rates is the plaintiff - not the liable defendant. The defense bar argued on these cases that giving the plaintiff a full $10,000 creates a windfall - especially if you consider Medicare may only pay $2,000 of that bill. Even so, the Supreme Court sided with the plaintiff's position.
Regardless of whether the Appellate Court in Perez is interpreting the law correctly, to me the decisions in Tower and Perez create a perverse incentive for the employer to deny treatment to the injured worker. It is simply a matter of dollars and cents. If the employer can accept a case and pay $7,500, or deny the case and later pay only $4,000, for the same bill, which makes better fiscal sense? Perhaps fewer cases would be denied if the employer always had to pay the fee schedule rate.
While it would ultimately be the fault of the legislature, the Appellate Court's interpretation of the law makes it economically advantageous to deny cases - which defeats the purpose of the Act to provide timely benefits to injured workers.
The Incredible Shrinking Act
A little over a week ago the Illinois Appellate Court, Workers Compensation Division, issued its decision in the case of Murff v. IWCC, 2017 IL App (1st) 160005WC. At issue was the Court’s interpretation of Sections 19(h) and 8(a) of the Illinois Workers’ Compensation Act.
The factual background is a city garbage collector suffered a work-related injury and ended up with permanent restrictions. Those restrictions kept him from garbage collecting, but the city offered light-duty work in its rodent-control department for the same rate of pay – thereby attempting to defeat an argument for wage differential benefits due to a reduced earning capacity. The case went to hearing and an award was entered. Basically, all was fine until a few years later when the city decided to no longer off the light-duty work. Because the injured worker could also not return to garbage collecting and now faced a reduced earning capacity, he asked the Commission to award vocational (job assistance) benefits under the Act. He was denied.
First, the Court in Murff addressed that Section 19(h) – the Section of the Act that allows post-judgment modification of an award for a period of time – is only triggered when there is a change in physical disability; not a change in economic circumstances. Since the former garbage collector had no different restrictions or disability now than when he received his award, the Court found Section 19(h) did not apply and that the worker’s claim for further benefits was rightfully dismissed.
Second, the worker argued that he should be allowed to petition for vocational benefits under Section 8(a) of the Act alone, which is where one’s rights to vocational benefits even comes from. In a foreboding statement, the Court found Section 8(a) provided no independent right of review for a final award. If the legislature wanted to provide a right to review it needed to state so in the law’s language. Therefore, the only access a worker has to an award modification is through 19(h) – which again requires a change in physical disability.
The Court previously restricted rights to post-award benefits in Curtis v. IWCC, 2013 IL App (1st) 120976WC, finding that any further temporary total disability benefits must fall within the 30 month time-window for award modification under 19(h) (or 60 months under a “wage impairment” award). Piece by piece, the Court has restricted the amount of benefits available post-award and limited their recovery to a short few years post-decision.
The Murff decision is important to understand for two reasons. First, notice how the employer offered accommodated work for the same rate of pay, only to terminate the employment a couple years later. This is a warning shot to any injured worker and his or her attorney to remain diligent in fighting “sham” job offers intended for no other purpose than to reduce an award and the worker’s rights. Second, the most potentially disturbing aspect of Murff is the Court states Section 8(a) offers no independent right to review. Do you know what comes right before vocational benefits in Section 8(a)? Medical benefits. It has long been assumed medical rights remain open indefinitely post-award. It is a cornerstone of our practice. I am not so sure now. The Court did not address open medical rights in Murff or Curtis, but only because that question was not before it. It is not hard to see, however, that the same logic of Murff and Curtis could be extended to open medical benefits. It is hard to understate the dramatic impact this would have.
You might ask how it is possible the Court could potentially find something so contrary to decades of practice. Let us not forget in Will County Forest Preserve District v. IWCC, 12 IL App (3d) 110077WC, the same Appellate Court upended a century of Commission precedent where an injury to the shoulder was classified as an “arm” under the law. The Court, instead, found the shoulder to be part of a “person-as-a-whole.” What was the rationale for the dramatic departure with the way it has always been done? “This court has not had occasion to consider the classification of a shoulder injury.” Will County, 12 IL App (3d) 110077WC, ¶ 18. Meaning, no one’s ever asked us before.
Is it possible the only reason everyone thinks open medical rights continue under Section 8(a) indefinitely post-award is because no one has ever bothered to ask if that is true?
Bankruptcy and Divorce
In our town of Ottawa, Illinois, one of the most common issues we run across is people with financial concerns before, during, and after divorce. If financial reasons are one of the more common causes of divorce, then this comes as no surprise. Our office limits our practice to Chapter 7 bankruptcies (i.e., liquidations), and this discussion is limited to bankruptcy and divorce in the context of a Chapter 7 bankruptcy.
In some cases, it is not always clear whether a couple should file a bankruptcy petition or get divorced first. A lot depends on the assets involved or the lack thereof. When a couple is married, either one may file for bankruptcy individually or the couple may do it jointly. Filing jointly could save a couple some money as the joint debtors would pay the filing fee and the attorney only once. Filing jointly, however, may not be in both spouse’s individual best interests. For example, one spouse may want to take advantage of discharging a property settlement obligation stemming from the divorce that is available under a Chapter 13 reorganization but not a Chapter 7 liquidation. For this reason, it is highly advisable that both spouses obtain individual counsel.
It can be complex when both bankruptcy and divorce is at issue, but one thing is clear: domestic support obligations (e.g., maintenance, child support, or in some circumstances, related attorneys’ fees) are not dischargeable in bankruptcy. Property settlements from a divorce are not dischargeable in a Chapter 7 bankruptcy, but that is not true in other bankruptcy chapters. Other claims stemming from the divorce are at the same level of priority as other unsecured creditors in a bankruptcy.
Much of this information was gleaned from: Leibowitz, David P., Family Law (Illinois): Property and Financial Aspects of Dissolution Actions 2011 Edition & 2013 Supplement, Chapter 5 – Bankruptcy, Illinois Institute for Continuing Legal Education. We are a debt relief agency, and we file bankruptcy under the bankruptcy code.
For as much as I love Christmas, Thanksgiving perhaps best reflects the frame of mind I seek most: that of gratitude. Socrates said an unexamined life is not worth living, but if that examination does not lead to a sense of appreciation we also miss something important.
I have often reflected on the two major theories of our origin. One is that life evolved over billions of years, with everything needing to have happened just as it did for you or me to be alive; or, you are a child of God. But what strikes me is that no matter what is true, there is one lesson that applies regardless: our lives are incredibly rare and precious. They are a gift. And for that I am thankful.
I am also thankful for the success of our business and the support of our clients. I am thankful I have been entrusted with the opportunity to make a difference in their lives. None are here because something good has happened to them, but I hope this holiday they can still find much to be thankful for.
I am thankful for friends and family who take more joy in my successes than my failures. And for those who help create a positive environment in a profession that breeds too much hostility.
But above all, I am thankful for my wife and children – the north stars of my life.
The Myth of Sisyphus
I was recently reading an article entitled: “Is It Ethical to Colonize Mars?” It was an opinion piece which appeared on CNN’s website at the following address:
The author ultimately decides it is ethical. However, I was struck by his reasoning. He argues if a nuclear disaster destroys humanity and its creations, then “all of human history is for nothing.” But if humans continue on Mars and have a record of our past, then “all of human history is not for nothing. There is still human meaning in the universe." I don’t like his premise at all. If humans don’t survive forever, then all is for nothing? But why must anything be eternal to matter in the sense he means? I don’t disagree that a universe devoid of a mind to understand deprives it of someone to give shape to the void, but nothing will ever negate the individual lives we had while here; or the meaning we gave to them. Which truly is for nothing? A universe where art and music never existed, or one that did – however brief? If ISIS destroys an antiquity, it is a tragedy; but I do not believe it destroys the prior glory of the creators. It happened. It was real. It meant something. And the fact and meaning of the creation towers over what happens to it in the end.
In Greek mythology, Sisyphus was condemned to continuously roll a boulder up a hill, only to have it fall backwards again just before the peak. There was no Ultimate Purpose to it. Does that mean there was no purpose of any kind? I think writer Albert Camus’ essay about “The Myth of Sisyphus” ended with the right thought: “The struggle itself towards the heights is enough to fill a man's heart." To me, what matters is that humanity’s creations and loves existed at all – not that they last forever.
To bring this to the legal sphere, the reason we all fight so hard on cases is because our immediate place and circumstances in life matter to all of us. And they matter now. Not because anyone will care a million years from now.
So go ahead and colonize Mars and beyond. But if we don’t, it all still mattered to me.
Truth Is Not Manifest
Philosopher of Science Karl Popper once wrote: “Truth is not manifest; and it is not easy to come by.” Popper recognized that in the search for truth, there are many ways to get it wrong. He proposed a scientific approach of hypothesis and falsification, wherein with every error you gained a closer and closer approximation to the truth.
Truth in the law can be equally elusive. A legal theory is argued on facts, many based on witness observations that are subject to error. The problem is our senses sometimes fool us. That point is well-illustrated in Dickens’ A Christmas Carol where Scrooge famously challenges the reality of Marley’s ghost: “You may be an undigested bit of beef, a blot of mustard, a crumb of cheese, a fragment of underdone potato. There's more of gravy than of grave about you, whatever you are!” It is often not easy to come by what really exists or occurred. The task is even more difficult when people are willing to lie to achieve some agenda. Or, even worse, when individuals are not even aware of their lack of fidelity for truth – believing something is true for no other reason than they are the ones saying it.
I often tell clients: “It’s not about what you know to be true. It’s about what you can prove.” At times your own testimony and credibility are enough, but supporting your case through additional evidence is always preferred. Any given fact of your case may seem obvious to you. But the law is not a place for the seemingly obvious. It is the place for evidence and proof. For corroboration of facts. It may also seem obvious the earth is not flat, but we benefit from accumulated knowledge. The shape of the earth is not obvious to the naked eye at ground level, which is why it took humanity so long to appreciate what now seems simple.
I like Popper because he believed Truth was a noble pursuit; but also because he understood finding it is not as easy as one may think. In our context, that means building a case, fact by fact, proof by proof, until you can convince the trier of fact your version of the truth is more likely correct. You must always be looking for ways to support your version of the facts if you want to achieve your desired result.
The Right Stuff
Very often success or failure in our lives comes down to finding the right people. I was reminded of this recently working through a payment problem of short-term disability benefits owed to a client. Mind you, this is after I already won an appeal to get the benefits awarded in the first place. But what came next was an odyssey of phone calls, dial-by-directories of a large corporation and person after person who said they could not help but assured me the next person would. And then of course, that next person also passed the buck.
The running in circles lasted far longer than it should have. The issue was not resolved in days or even weeks. But it did get worked out once I was finally allowed to speak to someone at the company who had the authority and initiative to take responsibility and get answers. Someone who cared about being good at their job. I have a feeling if I had been able to speak with this person to begin with, things would have been taken care of a lot sooner. In the end, it was just a matter of communicating with the right kind of person.
So it goes with many aspects of a person’s case or life. That’s why it’s so important to find the right doctor, find the right lawyer, and surround oneself with people who will give encouragement for a good outcome. It is far too easy to allow an injury or legal problem to turn into depression or anger; we don’t also need people around us hastening the descent.
If you make an effort in life to find those willing to encourage you and give you hope, you will find better outcomes. Success can depend on who and what you surround yourself with, so don’t give up until you find those capable of helping you get to a better future.
Finding an Ending
The father of a good law school friend was, at the time, Chair of the University of Illinois’ Philosophy Department. I ended up reading a book he co-wrote entitled “Finding an Ending,” which was about the authors’ reflections on Richard Wagner’s operatic “Ring Cycle” and its lessons for how to find meaning in our lives. The book ends on the following note:
“We also know that everything that comes to be in [the world] must end, including all order and the very best of lives and loves. But in their mere presence, however ephemeral, they have the power to illumine the world in a manner that vindicates all.”
It is this search for a personal ending, a purpose that vindicates all, that was the driving force behind the founding of our law firm.
Lawyers sometimes get a bad rap in popular culture, but we see our work – at its core – as a way to help others achieve their own endings; a way to seek some meaning for a traumatic event or difficult life-situation that vindicates the suffering. While, at the same time, remembering any case is but one element of a total life-story; that while the goal is to find the right ending of a case at the right time, one should never let a case define the final summation of one’s existence. There is always more to life than one event, though that event has the capacity for deep scars and pain. It is for this reason our website balances words of aggression, strength and achievement with images of a more beautiful and peaceful world. An ideal world achieves balance, as does the ideal pursuit of a case.
In the end analysis, all truly is ephemeral. But the endings you find for your case and lives matter to you. And they matter to us.