Personal injury attorneys who represent the victims of traumatic brain injury never feel satisfied that their client received just compensation-no matter how large the settlement. As Grazian and Volpe has expounded on numerous occasions on myaccidentlaw.com/blog – the extent and ramifications of any serious brain injury is not always readily apparent and quantifiable and may not be fully known until decades after the victim sustains the injury. We were unhappy to read of a recent California settlement involving a 19 year old worker who fell through a skylight unto a concrete floor 35 feet below. The young worker was an employee of a HVAC contractor who had been hired on a renovation project that included adding air conditioning units to an existing building. The worker tripped while on the roof causing him to fall through the skylight. He suffered a traumatic brain injury including a a skull fracture, intracranial hemorrahage, multiple blunt-trauma injuries and bilateral fracturs to the tibia and fibula. As a result of the brain injury, he suffers from difficulty concentrating, trouble processing complex information, short-term memory loss, blurred vision, headaches, impaired balance and numbness to his scalp. Since the accident he also suffers from anxiety and depression. His past medical expenses totaled about $302,400 and his future medical expenses and life-care costs are estimated at about $590,900.00. The young man attempted to return to work after two years but was unable due to his resulting physical limitations.
He sued the the construction company which had contracted his employer alleging that the company has violated Occupational Safety and Health Administration regulations by failing to provide personal fall protection, guardrails and skylight covers. The parties settled for $965,000 and the worker’s compensation carrier waived its lien of approximately $276,200.00.
As Chicago Workplace Injury attornerys of over 25 years, Grazian and Volpe has striven to keep our clients aware of the requirements and safety standards and precautions which their employers should follow-see myaccidentlaw.com articles filed under “workers’ compensation“. Unfortunately, employees cannot always count on employers to follow safety measures or be aware of dangerous conditions. The young man in California will suffer his entire life for the negligence of another and no settlement will ever restore him to his physical state before the his accident. Grazian and Volpe would prefer that all their clients stay safe but when they can’t-they know that Grazian and Volpe will obtain the best outcome possible for them and their loved ones.
On October 14th, we wrote of the complexities involved in cases where a third party personal injury and workers’ compensation cause of action co-exist (myaccidentlaw.com/blog October 14, 2011). Personal injury attorneys need to be aware of the prevailing workers’ compensation statutes and whether it is necessary to obtain approval of the third party settlement by the workers’ comp insurer. Many a malpractice suit has been predicated upon this issue and caution is the best defense.
Personal injury lawyers should educate themselves and be savvy when negotiating the workers’ compensation liens. The philosophy at Grazian and Volpe is to ask for everything-all the time. In over 25 years of practice we have never ceased to be amazed at the savings you can achieve just by asking….and then asking….and asking.
As all small firm practitioners realize (and quite painfully) is the expense inherent in litigation. It has been our experience that workers’ compensation subrogation adjusters may often advance those expenses where they are contemplating that your suit may satisfy that lien. If you let them know you are willing to file and put in the work but unsure as to fronting all the expenses-they may be quite willing to advance the case expenses. Most workers’ compensation subrogation statutes require the lien holder to pay a proportionate share of the third party litigation expenses at resolution of the workers’ comp lien. If you can convince them that advancing the litigation expenses in advance of the resolution is advantageious to them-you may be surprised at the speed with which you receive their check!
On that same note, remember that the statutory workers’ comp lien can be waived or reduced and sometimes you can negotiate a reduction in the lien if you agree to a lesser compensation settlement on the condition that a complete waiver is issued on the proceeds of the third claim. Many adjusters will celebrate closing the claim for a lesser amount in the face of the time and uncertainty of a personal injury claim.
Finally, (for the purposes of this blog), personal injury attorneys should consider comparative fault in reducing the workers’ compensation lien. If you personal injury suit involves comparative fault on the part of you client, many states may allow a reduction in the lien. In addition, the employer’s comparative fault may also serve to reduce the lien. Ask the adjusters or defense attorneyes to provide you with a letter outlining the estent of fault apportioned to each party and use the letter to bolster youir case for a lien reduction.
This article is certainly not an exhaustive discussion of the tactics available to negotiate a reduction in the workers’ compensation lien. Our practive combines both personal injury and workers’ compensation which has given us a view to both sides of the equation. The key is to realize that these liens can be negotiated or waived and to apply good business sense to assess your leverage- the subrogation carrier may have good reasons to settle for less or more quickly.
Please follow us on myaccident.law.com, LinkedIn and FaceBook for more articles and videos discussing current issues of personal injury and workers’ injury. We love to talk law so feel free to call our offices or submit a question to John Grazian the first Tuesday of every month on WCIU, You and Me in the Morning.
The attorneys at Grazian and Volpe has dedicated their practice to both workers’ compensation and personal injury law for over 25 years. The coordination of these practices has allowed us to maximize settlement recoveries and negotiate minimum liens on all cases. Please join us at myaccidentlaw.com, Grazian and Volpe on Facebook and John Grazian on WCIU, You and Me in the Morning for more information on how you can assure maximum recovery whether you are a lawyer or client.
Personal injury attorneys and workers’ compensation lawyers should be aware of the potential pitfalls created by the existence of both causes of actions resulting from a single accident. Careful coordination of the workers’ compensation and third-party personal injury claims will often result in increased net recovery for the catastorphically injured client. Lawyers should have working knowledge of their states workers’ compensation subrogation law-althouth this area of law is primarily statutory and varies widely form state to state, the strategies for getting a workers’ comp carrier to reduce its lien are the same in most jurisdictions.
There is a growing state trend to terminate future workers’ comp benefits if the worker fails to obtain the employer’s consent to the third party settlement. Where the client will need lifetime medical treatment a lawyer needs to obtain the workers’ comp carrier’s consent and waiver of termination of future benefits before accepting the third-party settlement proceeds. While this situation is most prevalent when the third party has state minimum insurance limits-lawyers should be cognizant of this trend in all cases.
Grazian and Volpe can’t write enough about trucking companies and shippers disregarding or attempting to circumvent state and federal laws and regulations aimed at preventing truck accidents (myaccidentlaw.com/blog, just every darn week!). We simply can’t avoid advocating for workers’ injured on the job who are having difficulty with their workers’ compensation claims certainly not helped by the State of Illinois and its business lobby friends (myaccidentlaw.com/blog – Rich is not happy about the changes in law!).
When news of a recent settlement crossed my desk, we gave a cheer for a rare win for the good guys. A case where the issue of the abuse of the “independent contractor” appellation and trucking companies has married the issue of companies avoiding the payment for workers’ compensation benefits.
The case involved the propriety of a trucking company classifying a group of drivers as “independent contractors”. This misclassification allowed the trucking company to be relieved of the obligation to reimburse the drivers for any and all employment claims. The trucking company thus avoided allowing required meal and rest breaks, keeping itemized wage statements and paying for workers’ compensation insurance. The drivers claimed that they were employees as the trucking company controlled the services performed by the drivers as to what was to be performed and the manner in which it was performed. The drivers prevailed and the company was compelled to create a large settlement fund to guaranty any workers’ claims.
Not only does this settlement set an an example for employers attempting to avoid paying for workers’ compensation insurance benefits but also those companies that improperly label workers as “independant contractors” but; it also serves to prevent trucking companies and shippers from avoiding the liabilities of negligent, impaired or fatigued drivers who ignore safety laws and regulations by claiming that they have no responsibility for the independent contractors they retain (seemyaccidentlaw.com/blog September 21, 2011 Is the Shipper Liable?)
The Chicago truck accident and Chicago workers’ compensation lawyers at Grazian and Volpe are always happy to report verdict, settlements and laws that benefit our clientele who have been injured at work or in life. In over 25 years of workers, injury and accident practice we have never seen a case which so beautifully combines the pursuit of driver safety and the prevention of truck accidents with the assurance of benefits to workers. Our hats off to these brave truck drivers for pursuing their rights to the benefit of workers and highway safety!
Changes to the Illinois workers’ compensation laws voted on earlier this year officially went into effect on the first of September and have been met with a mixed reception.
The changes, widely touted as reducing costs for employers, leave some employee advocates wondering how well the new laws will actually meet the needs of injured workers.
Medical Reimbursement Fee Reduced
A notable feature of the new law is a 30 percent reduction of the medical reimbursement fee schedule. This change alone is expected to save employers about $500 million per year, but it also means that medical providers will be compensated less for their services. This could result in decreased access to medical care for injured workers, since there is less incentive for doctors to participate in the system.
Preferred Provider Programs
Provider choice may also be limited by another provision in the new law that allows employers to establish preferred provider programs. An employee may choose two providers from within the network, or may opt out of the network in writing. However, opting out triggers a series of procedural complications that could make opting out an unattractive alternative to many injured employees.
Injured workers will also receive reduced compensation for certain types of injuries under the new laws – for instance, the maximum award for the loss of the use of a hand is reduced from 205 weeks to 190 weeks. Similarly, most repetitive carpal tunnel injuries are now capped at 15 percent of the loss of the use of a hand.
The new laws apply only to injuries that occurred on or after September 1, 2011 and claims for injuries that occurred before that date will continue to be evaluated under the previous version of the law. Some Chicago workers’ compensation lawyers say that it will become clearer just what negative affects the bill will have as more claims are decided under the new provisions.
Workers’ Injury: Big Verdict in Plant Explosion
Workers’ Injuries: Man wins $5.71 million dollar verdict for injuries sustained as a result of an explosion at employer power plant. The jury found his employer liable for deliberately intending the worker’s injuries to occur.
Evidence indicated that the employer had experienced a similar explosion at another power plant approximately 15 months earlier and then failed to take any steps to correct the problem at the plant where the worker/plaintiff was injured.
Numerous experts testified at trial relating that the explosion was caused by the dangerous conditions on a hydrogen tank at the facility and that the employer had knowledge of these conditions as evidenced by a series of fires and explosions in the hydrogen systems.
The jury awarded a $1.571 million verdict to the worker and $100,000 to his wife (see grazianandvolpe.com blog August 13, 2011, Personal Injury: Let Me Count Thy Injuries on loss of consortium). The additional $4 million in punitive damages was a shot across the bow for any company that chooses to disregard its safety rules endangering its employees and the general public.
As experienced personal injury lawyers of over 25 years, Grazian and Volpe endeavors not only to advocate for our clients when they have been injured but also to educate them on how personal injuries and workers’ injuries may be avoided through knowledge of safety laws and hazards. Please follow us on the web at www.myaccidentlaw.com, Grazian and Volpe at LinkedIn and FaceBook, GrazianTalksLaw on Twitter and the first Tuesday of every month on WCIU, You and Me in the Mornings.
Almost all personal injury cases are settled out of court and before trial begins, some are settled after the start of a trial but before its conclusion. It is always better and faster to avoid a trial but not always the best course to recovering the most in damages for a client.
That’s where our extensive 25 year plus experience as Chicago’s personal injury attorneys becomes very important in assessing whether the settlement you have been offered is fair of if you are likely to receive a better settlement if your case is tried.
Grazian and Volpe will never take your case to trial unless we have discussed all the options with you. If your Grazian and Volpe lawyer and you decide trial is the best course of action, we will be there to hold your hand…..every step of the way. Our successful history as prepared, experienced and aggressive personal injury lawyers means that you can put your trust in us and we will honor that trust by fighting hard and tirelessly to get you your best result, whether your case is resolved before, during or after trial.
Your South Chicago injury attorneys at Grazian and Volpe love to talk personal injury and workers’ compensation law and consultations are always free. We also make monthly appearances on WCIU, You and Me in the Morning and utilize Twitter, our website (grazianandvolpe.com) and LinkedIn to answer legal questions and educate the public on current law. Please feel free to contact us or view us the first Tuesday of every month on WCIU, You and Me in the Morning.
Illinois Workers’ Compensation Act: Your Personal Injury Lawyers at Grazian and Volpe have been blogging extensively about the 2011 rewrite of the Illinois Workers’ Compensation Act. The outcome of such broad changes in law are difficult to predict and it will be up to lawyers, IWCC arbitrators and commissioners and up the chain of judges to determine the actual application of the changes. Of course, that will be a long and arduous process and lawyers and their clients need ready for battle.
However, as experienced workers’ compensation attorneys, we at Grazian and Volpe are focused on the most important changes. In this blog and follow-ups we hope to highlight these changes. Of course, it is any person’s guess as to how the usual Illinois and Chicago political landscape effect the application of the rewrite.
We now know that a petitioner has a right to two separate choices of medical providers(grazianandvolpe.com August 5, 2011) and while the employee can opt out of the employer’s provider network, there are many deterrents to doing so.
An employer must inform an employee in writing of his or her right to to be treated by a physician of his or her choice from the employer’s preferred provider network. If the employee accepts the medical provider within that network, it is considered his or her first choice but referrals within the network will not count as a choice. However, an employee cannot change doctors within the network without a referral.
The act of declining to be treated (and this must be done in writing) by a provider within the network constitutes a choice, effectively limiting the employee to one choice of doctor and referrals thereunder are included in that choice. IF an employer is not participating in a preferred provider program, the employee retains the right to choose two separate medical providers.
Sections 8.1a and 8.a.4 allow an employee/petitioner the right to have two separate choices of medical provider subject to the limitations discussed above. The business community lobbied for but was unsuccessful in its bid to obtain total control over the pool of doctors from whom employees could choose. A bittersweet compromise now allows an employer or its representative (the insurance company) to create a panel of medical providers for submission for approval to the Illinois Department of Insurance and allow the employee to opt out of the providers network. But as discussed above, there are disincentives for the employee to do so.
Chicago and South Chicago as manufacturing and industry centers will serve to be a major testing ground for the application of these changes. The workers’ compensation lawyers at Grazian and Volpe will be discussing more changes in future blogs. We love to talk personal injury and workers’ compensation law and will always consult with clients or potential clients free of charge. Watch for us on Twitter, LinkedIn and WCIU, You and Me in the Mornings(first Tuesday of every month) where we take questions regarding every aspect of worker and accident injuries.
Workers’ Compensation claims finally get some good law in Illinois. On August 5th, I wrote about the need for a worker, injured on the job, to know that he or she has the right to choose their own doctor if they are not satisfied with treatment or diagnosis rendered by the company chosen physician (grazianandvolpe.com and myaccidentlaw.com, August 5th, 2011).
Now a new law, called the Patient’s Right to Know Act(Act) has been signed into law by Governor Quinn on August 9th. This Act has been blocked by the doctor’s lobby for more than a decade. Within two months, the Illinois Department of Financial and Professional Regulation(IDFPR) will be required to post doctor profiles on its website, idpfr.com. The profiles will include whether a physician has been fired, convicted of a crime or has made a medical malpractice payment in the last five years. Other details will include medical schools attended, specialty board certification, number of years in practice and locations.
Of course, this is a positive step for all patients, whether nursing home patients, accident victims, or any person needing treatment from a doctor. However, I am particularly pleased with its application to workers injured on the job who will soon be compelled by the new Workers’ Compensation Act to be seen by the doctor chosen by their employer. This new act protects workers by allowing them to research the history and qualifications of the company doctor and help them to decide whether to seek diagnosis and treatment from another doctor; one of their own choosing.
Your South Chicago Workers’ Compensation Lawyers at Grazian and Volpe will be monitoring the changes to the Workers’ Compensation Act to keep our clients and the general public apprised workers’ benefits and rights. Follow us on our websites grazianandvolpe.com or myaccidentlaw.com or on LinkedIn. We can also be seen on WCIU, You and Me in the Morning the first Tuesday of every month where we take questions regarding all personal injury and workers’ compensation issues.
Work Place Injuries in Illinois: Workers’ Compensation may not be all to which you are entitled. Plaintiff was a leadman at a chemical plant. As part of a project, a crane was being prepared for use. As plaintiff was walking nearby, he noticed the crane shaking and realized that the operator had lost control. The crane fell backward and struck another crane, which struck a chemical tank. A large plume of smoke erupted from the tank and Plaintiff, fearing the tank was about to explode, began running down a set of stairs. He stumbled and fell, twisting and grabbing the railing. A number of other workers were killed or injured in the accident and our plaintiff has been unable to work because of the numerous personal injuries suffered. Is everyone and every worker limited to workers compensation in the workplace or are there other avenues to obtain compensation for workplace injuries? Absolutely!
The survivors of those killed and other workers who were injured sued the crane’s manufacturer, owner, and operator. The allegations successfully litigated and leading to a large settlement for all plaintiffs included defendant’s negligent preparation of the crane, failure to provide an automatic overhaul alarm/shutdown (see GrazianVolpe.com and myaccidentlaw.com Blog 7/27/2011 Workers Compensation and Machine Guarding). Plaintiff’s were also able to prevail on complaints that defendant’s employees were not adequately trained to operate the crane despite the existence of written procedures requiring both classroom and practical training.(See same 7/27/2011).
This case illustrates why it is important to hire a Chicago Injury Attorney who is familiar and experienced with workplace injuries. Often times, an attorney may practice either workers compensation law or personal injury. A combined law firm makes the most sense where workplace injuries are involved. This allows the attorneys to see all possible avenues of compensation for injured workers. South Chicago Accident Lawyers, Grazian and Volpe have a combined law practice in both workers’ compensation and personal injury and advocate strongly and competently for all their clients injured in the workplace. Workers may not be limited to workers compensation for their injuries and should confer with experienced full spectrum accident law firms. Visit Grazian and Volpe at WCUI in the morning, Facebook and YouTube to learn more about workers compensation and personal injury issues. You can also follow John Grazian on Twitter where he discusses recent court findings and changes in law regarding all personal injury issues in Illinois and nationally including car accidents, workers’ compensation, dog bites, nursing home neglect, and premises liability, ie., slip and falls and landlord liability