Big Business Targets The Working Man

This is the next of a series of columns on how the law can impact your life. Each month we will focus on various aspects of the law relating to personal injuries, those that happen both on-the-job and otherwise, including mishaps which occur in driving vehicles, using products and receiving medical care. The column will also respond to legal questions relating to personal injury that are sent to us.

Healy Scanlon Law Firm is comprised of eight trial attorneys, two of whom are from Ireland. We are located downtown at 111 West Washington Street, Suite 1425, Chicago, Illinois 60602 (800-787-5431 or 312-324-0409). www.HealyLawFirm.com. The firm concentrates in the representation of injured victims of all types of accidents.

Readers are encouraged to call or write with questions concerning personal injury law.

BIG BUSINESS TARGETS THE WORKING MAN

Recently, the General Assembly in Springfield featured much discussion of "reform" of the Illinois Workers' Compensation system. Not surprisingly the business lobby was once again targeting the rights of injured workers in the State of Illinois. These proposals were being made under the guise of encouraging job opportunities in the State by restricting injured workers' rights under workers' compensation, thereby creating a "favorable" job market for prospective employees.

None of the pro-business proposed reforms mentioned insurance reform. The plain, undisputed facts show that in the last decade workers' compensation claims have dropped almost 50%, while insurance premiums continue to rise. The proposed changes instead would include the following:

  1. Stripping the injury worker of the right to see his or her doctor;
  2. Restricting the injured worker from filing claims for aggravations of pre-existing conditions; and
  3. Limiting an injured worker from recovering for wage differential benefits when their work-related injury prevents them from returning to their prior employment.

Let's take the three proposals and analyze what they mean for the injured worker.

(1) REQUIRING AN INJURED WORKER TO BE TREATED BY A DOCTOR OF THE EMPLOYERS CHOOSING

At present, in Illinois, a worker who is injured on-the-job has the right to treat with a physician of his own choosing. However, the employer also currently has an absolute right to have the worker examined by a physician of their own choosing. This right may, and quite often is, exercised by the employer many times throughout the claim. Under the proposal, the worker who has already suffered a work-related injury would now be leaving their choice of treater to the employer, or in actual fact, to the employer's insurance company.

This essentially leaves an injured workers' potentially life changing medical decisions in the hands of someone whose allegiance is at best questionable. In practice, insurance companies many times hire the same doctors again and again to formulate the pro-insurance, anti-worker medical opinions.

(2) RESTRICTING THE INJURED WORKER FROM FILING CLAIMS FOR AGGRAVATIONS OF PRE-EXISTING CONDITIONS WHICH WOULD HEAVILY TARGET REPETITIVE TRAUMA TYPE INJURIES

Currently, a worker whose shoulder, knee, elbow, wrist or back gives out due to repetitive activity of the job may file a claim for a work-related injury. Under the proposal the injured worker must prove based upon a preponderance of the evidence that the repetitive trauma activity has been primarily caused by the employment rather than the employment playing only a role in the advancement of the condition.

Also, currently, if a worker is able to perform his job, the fact that he may have had a prior injury, does not preclude him from receiving benefits if he has aggravated that condition on-the-job. The proposed changes would make aggravated claims extremely difficult, if not impossible, to prove.

(3) LIMITING AN INJURED WORKER FROM RECOVERING FOR WAGE DIFFERENTIAL BENEFITS WHEN THEIR WORK-RELATED INJURY PREVENTS THEM FROM RETURNING TO THEIR PRIOR EMPLOYMENT

Currently in Illinois an injured worker who is no longer able to perform his or her employment due to a work-related injury, but can work in some lesser paying capacity, is entitled to receive two-thirds of the difference between what he was previously earning and his post-accident earnings. For example, a worker who was making $35.00 an hour in a trade who is no longer able to perform and can only do a job paying $10.00, is entitled to two-thirds of the wage differential. As it is, that injured worker will no longer receive the benefit that prior employment provides in terms of health insurance, pension, 401K etc. as that has never been provided for under the law. Any future payments towards any of those plans will be on the $10.00 an hour job if in fact such benefits are offered.

The proposal would allow only the employer to come back and review the differential if the wage differential decreases due to raises in the employees lesser paying job. However, if the wage differential increases (due to layoffs, etc.), the employee has no right to reopen his case.

As usual, the attempts to produce savings for insurance companies are being borne by working men and women.

CONCLUSION

The current proposed "reforms" unfairly target the injured worker. As many readers will agree, the current job climate places employees in fear of their job thereby heavily discouraging employees from filing any sort of a claim. Injured workers are afraid that their employer will replace them with someone else.

The proposal will only compound these fears. Imagine that you or your spouse or your child has suffered a work-related injury and is required to undergo a serious back surgery. The risks of such a surgery are many including paralysis, infection and death. Would anyone hand over the choice of this physician to an unknown insurance company representative? The relationship between a patient and a doctor is a sacred one and should remain so. The place or nature of injury should not change that relationship.

Likewise, as stated, the carpenter, plumber factory worker, or secretary, who suffers a repetitive trauma on the job will have a harder and harder time establishing their legitimate work injury.

These proposals unduly impinge on workers' rights. Contact your State Senator or Representative if you have concerns about these alleged "reforms."

BY: JACK CANNON