RECOVERY OF LOST WAGES AND EARNINGS IN AN INJURY CASE
By: Attorney and Partner Steven J. Greeley, Jr.
May, 2013
Attorney Steven J. Greeley, Jr. with Franks, Gerkin & McKenna, P.C. is any injury attorney handling matters in McHenry, Kane, Boone, DeKalb and Winnebago Counties.
Lost wages and earnings are recoverable when there is a work injury or other injury due to the fault of another party, such as an automobile accident.
When the injury occurs as a part of work duties, and a doctor has restricted you from performing any work or when the employer cannot accommodate any restrictions to your work due to the injury, the employee is entitled to temporary total disability (ttd) money at two thirds of the employees average weekly wage, which is the average wage with mandatory overtime reduced to regular pay over the fifty-two weeks prior to the injury.
For other injuries, your full wages or earnings, including the overtime that you can show was going to come, can be recovered. The injured person needs to save copies of pay stubs prior to and after the accident to verify in writing what amounts of money were lost while the employee was injured due to the accident. Even if the days are covered by sick days, personal days or vacation days or other sort of comp days, the employee can recover the money they would have earned had they not needed to use those days off because the employee should not have had to have used the days off for an injury caused by somebody else.
For self-employed individuals or contractors, detailed records of income and expenses from before and after the accident will be needed to calculate the fair amount of lost earnings. All data on lost income opportunities, including the contact information of the customer, the type of job and the average or quoted reasonable price for the job and the cost of any expenses related to that job will be necessary to prove the lost earnings.
Aside from lost earnings, injured parties are entitled to additional compensation for the pain and suffering or disability due to the work or injury caused by a liable party.
Please contact our office to review your claim to determine how much money you deserve.
NEWS RELEASE
Contact: Ann Sprague
ASprague@fgmlaw.com
FRANKS, GERKIN & McKENNA, P.C. EARNS
BETTER BUSINESS BUREAU ACCREDITATION
(Marengo, Il., Sept. 4, 2012) - Becoming an Accredited Business with the Better Business Bureau is an honor not accorded to all businesses; because not all businesses meet eligibility standards. Franks, Gerkin & McKenna, P.C. is pleased to announce today that it has met all BBB standards and is now an Accredited Business.
"Accreditation in the BBB is by invitation only" says Steve J. Bernas, president & CEO of the Better Business Bureau serving Chicago and Northern Illinois. "And only those businesses that meet our high standards, and pass the review process are approved by our Board of Directors."
As with all businesses that are Accredited by the BBB, Franks, Gerkin & McKenna, P.C. has committed to the BBB Code of Business Practices. The Code is a comprehensive set of policies, procedures and best practices on how businesses treat consumers. These standards call for building trust, embodying integrity, advertising honestly and being truthful. Bernas adds "To maintain their Accreditation a business must be transparent, honor their promises, be responsive to their customers, and safeguard their privacy."
"We are proud to be a BBB Accredited Business," said Steve Greeley, Partner at Franks, Gerkin & McKenna, P.C. "In today's world it is imperative that our customers know how seriously we take our commitment to excellence and good customer service. Our achieving BBB Accreditation exemplifies that goal."
Franks, Gerkin & McKenna, P.C. has been in business for forty-eight years offering consumers the best in legal services. "Our desire is to stay focused on what we do best; provide outstanding legal work and unsurpassed customer service," said Steve Greeley.
About Franks, Gerkin and McKenna - Law firm of forty eight years, with many practice areas including personal injury, workers’ compensation, litigation, real estate, estate planning, criminal defense, family law, land use and zoning, probate, commercial transactions, bankruptcy, and traffic violations. Partners of the Firm are Herb Franks, Peggy Gerkin, Terry McKenna, Jack Franks, Steven Greeley, and Joseph Ponitz. Associates include David Montenegro, Olivia Dirig, and Rebecca Lamm. The firm has Spanish speaking lawyers and staff.
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Because Illinois is a no fault state, individuals injured in workplace accidents are eligible for benefits even if their actions contributed to or caused the accident. Additionally, you do not need to be concerned about your job security when filing a claim for workers' compensation benefits. It is your right to apply and it is illegal for employers to discriminate against you for exercising your right.
There are four types of disability categories in Illinois. These categories determine the financial amount to be given and the duration of payments for occupational injuries.
- Temporary Total Disability (TTD) refers to the temporary period an injured worker is unable to return to work
- Temporary Partial Disability (TPD) refers to the temporary period an injured worker is still recovering yet is working light duty and earning less than in the pre-injury job
- Permanent Partial Disability (PPD) refers to an employee permanently unable to perform the same actions as prior to the occupational injury
- Permanent Total Disability (PTD) refers to a situation where an employee is permanently unable to work due to permanent and complete disability
The lawyers at our firm are committed to helping clients secure the workers' compensation benefits they deserve through filing a claim or through appealing a denial of an initial claim. From construction accidents to carpal tunnel, our attorneys are committed to protecting our clients' rights.
Some of our recent successes include:
- A $175,000 workers' compensation settlement for a tool and die maker's back injuries
- A permanent total disability award — which provides compensation for the rest of a victim's life — for a carpenter who suffered severe back and leg injuries in a construction accident
- Obtaining benefits for a child born after the death of her father, an undocumented alien worker, in a job-related accident
- A $210,000 settlement for a forklift driver with an arm injury that prevented him from continuing in the same job
As a lawyer practicing in mostly rural McHenry County, Illinois, I have clients come to our office frequently who have had trees cut down by neighbors who do not bother to find out where the property line is located. You would think this type of claim would be simple because liability is not an issue where there is no dispute as to the property line but there always seems to be a dispute on value. The client wants the same 80 foot tall tree dropped into the ground but that is impossible. The insurance company and/or tree cutter think they did the client a favor and increased the property value by taking down an old tree. Or each party has a position somewhere in between these two extreme examples.
Valuing the loss in Illinois involves the Wrongful Tree Cutting Act, 740 ILCS 185/0.01 et seq., which provides treble damages on the "stumpage value", or the value of a standing tree. Almost the entire act defines the responsibilities of the Director of the Illinois Department of Natural Resources and the discretionary ability of the court to order the Director to obtain 3 appraisals of the stumpage value and to take the average to decide the issue of valuation.
Every case I have been involved it as plaintiff included a motion by the defendant to obtain these appraisals but 17 Ill. Adm. Code 1585.20(b)(1) causes those appraisals to be worthless in most situations because the appraisers are not allowed to assign values "to any tree that will not meet the definition of commercial timber. This Part does not apply to replacement, aesthetic, shade-tree or landscaping value." Despite this clear flaw in the regulations, the court in Marsella v. Shaffer, 324 Ill. App. 3d 134, 142 (2d Dist. 2001) confirmed that the Wrongful Tree Cutting Act extends to all trees, not just trees designed for use as timber. In addition, the court in Wujcik v. Gallagher, 232 Ill. App. 3d 323, 329 (2d Dist. 1992) reviewed a case involving tree cutting and confirmed that treble damages are appropriate for "acknowledging environmental injuries and holding wrongdoers accountable for actual damages."
An expert appraiser must then be retained by the injured property owner to prove its damages and certified arborists that utilize the American Society of Consulting Arborists Guide for Plant Appraisal should be sought for a proper appraisal. The arborist will rate the condition and location of the cut trees and apply those ratings to a formula involving the species and trunk size to determine the value of the tree.
Treble damages are then calculated from the value and the extent of possible damages under the Act that can be awarded will be known. The injured client must realize that this value will not result in a mature tree being able to be planted for that price but it will be sufficient for a reasonable size tree with additional money left over to compensate the victim for the loss. The parties should also be aware that the finder of fact can, in lieu of treble damages, award actual and punitive damages as it deems just. The court in Aaron v. Hendrickson, 221 Ill. App. 3d 842, 849 (5th Dist. 1991) confirmed that the Act was a remedy "additional [] to trespass." Whilejudgment could not enter on the treble damages and punitive damages, thealternative pleading of trespass with a prayer for punitive damages would allow the finder of fact to assess fore than treble damages if the fact support it. See Marsella at 143. Punitive damages are warranted even against the unknowing tree cutter who does not check a survey to determine the property line location. In Rodrain v. Seiber, 194 Ill. App. 3d 504, 510 (5th Dist. 1990), the court upheld a punitive damages award where the defendant ordered a survey but did not bother to wait for it to be drafted before the tree cutting commenced. Therefore, based on the net worth of the defendant and the egregiousness of the situation, much more than treble damages could be awarded.
In sum, tree cutting cases tend to be litigious due the varying ideas that people have about the value of trees, however, plaintiffs can be awarded significant damages and can use that leverage in negotiation. Defendants can also attempt to persuade the finder of fact of the minimal value and the lack of malice to avoid punitive damages.
When tragic accidents occur on the job, it is good to know that you have both the medical insurance and workers' compensation options to cover the costs of your medical care. Or do you? What if you are one of the few exceptions to your state's workers' compensation laws? What if your medical insurance denies your claim because you should be covered by workers' compensation? This was the unfortunate cycle in which one Illinois farmer found himself recently.
Once Upon a Grain Bin
After Jason Haas fell off the ladder in his grain bin, his first thought was probably not about which insurance was going to cover the medical costs to repair his injuries. One ambulance ride and $87,000 worth of medical care to fix his broken leg and crushed vertebrae later, it probably crossed his mind, however. Haas, who carried medical insurance with Humana through a non-agricultural part-time job, filed a claim to cover the bills, but Humana denied his claim. The insurer stated that the injuries relating to the farm accident were not covered because he was working at a for-profit job and he should be covered by Illinois' workers' compensation insurance. Now Haas had reason to worry about those medical costs.
Illinois Exemptions
Workers' compensation insurance and laws are supposed to cover the medical costs for injured employees. In Illinois, however, this coverage does not extend to agricultural workers, like Jason Haas, if the agricultural enterprise "employs less than 400 working days of agricultural labor per quarter in any quarter in the preceding year, excluding family members." While any exempted Illinois agricultural employer can choose to participate in the state's program for workers' compensation, it is typically too expensive to be a viable option.
Health Insurance Intervention
Since Jason Haas couldn't afford his own workers' compensation coverage, his injuries were not covered by the state's workers' compensation insurance program and his medical insurer declined to pay for any of the medical bills related to his farming accident, he had to find help. After contacting a legal agency, his case went all the way up to the Illinois Department of Insurance (IDOI) Director Michael McRaith. McRaith agreed that Humana did not correctly apply Illinois law in Haas' situation, stating that they rejected his claim based on state workers' compensation coverage that was not available to Haas.
Getting What You Deserve
With pressure from the IDOI and a little bad press, Humana began covering Jason Haas' extensive medical bills. In this case, Haas got what he deserved, but he had to fight for his insurance payments with the help of other legal and insurance professionals. When these types of unfair situations arise, it is best to seek the advice of an experienced Illinois workers' compensation attorney in your area. Know your legal rights and options so you can avoid being stuck in an unfortunate cycle of insurance runarounds.
The Illinois Senate Executive Committee voted 7-5 last month to advance a bill increasing the speed limit for all vehicles on interstates to the Senate floor. SB 3668 would increase the speed limit to 70 mph, except in Chicago and surrounding areas.
While the bill's sponsor, Sen. Dale Risinger, told the State Journal-Register that higher speeds don't increase the crash rate, safety advocates disagree. Illinoisans not unexpectedly look to neighboring Iowa for answers, since Iowa raised its speed limit from 65 to 70 mph in 2005. Researchers at Iowa State University analyzed the impact of increasing the speed limit on speed, traffic volume and public safety. The study conducted two years after the change took effect found that serious crashes involving fatalities or major injuries increased by 15 percent, but researchers tempered their conclusion by noting that annual variations in crash frequency and severity may account for this increase. With respect to cross-median crashes in the first six months after Iowa's speed limit increase, the increase was statistically significant, but has declined to earlier levels since that time.
If the Iowa experience is somewhat inconclusive, a broader study by the University of Illinois School of Public Health is not. That study, encompassing numerous states and various speed limits, found that higher speed limits lead to more fatalities. Researchers attributed 2,545 deaths and 36,582 injuries in fatal crashes to increases in speed limits from 1995 to 2005. The highest rate of increase — 9.1 percent — was observed on rural interstates where states had increased speed limits to 70 or 75 mph.
Research specifically addressing the impact of higher speed limits on tractor-trailer crashes is sparse, but because of differential braking requirements due to their weight, tractor trailers are believed to pose greater risk at higher speeds. The Insurance Institute for Highway Safety conducted a study in 1991 that demonstrated that the proportion of trucks exceeding 70 mph was twice as high in states with an undifferentiated 65 mph speed limit for all vehicles than in states with a 65/55 mph split for cars and large trucks. This study helps explain why many safety advocates prefer to see different speed limits for cars and large trucks.
What is workers' compensation?
Workers' compensation is a type of insurance program that provides benefits to workers who are injured on-the-job or develop a work-related occupational illness or disease. In some cases, workers also may be entitled to workers' comp benefits if they have a pre-existing medical condition or illness that has been worsened by their work activities. The majority of Illinois workers are entitled to this important benefits program.
With limited exceptions, workers are entitled to workers' comp benefits regardless of who is at-fault for their injuries. Some of the types of benefits that are available under the workers' comp system include:
- All reasonably related medical expenses
- Temporary and total disability benefits
- Vocational rehabilitation
- Death benefits
Under Illinois law, employers are required to provide workers' compensation for all of their employees from the first day they begin working for the employer. Most employers will buy a workers' comp insurance policy from a private insurance company, although some may receive permission from the state to self-insure.
In exchange for providing workers' comp, employers are protected against employee lawsuits to recover compensation for on-the-job injuries. In other words, workers who are harmed in a work-related accident generally cannot bring a lawsuit against their employers to recover for the injury; the workers' compensation system is their sole recourse.
Notifying the Employer
When a worker is injured at work, the first step the worker should take after seeking medical attention for the injury is notifying the employer of the injury. Under Illinois law, injured workers have 45 days from the date of injury to provide notice to their employers.
While this notice does not have to be made in writing, it is in the worker's best interest to do so. The notice should include such basic information as the date, time and place of the injury, a description of what happened and the worker's contact information. The worker also should keep a copy of the notice for his or her own records.
The Employer's Duties
Once the employer receives notice that one of its workers has been injured, the employer then must notify its workers' comp insurance provider of the injury. If the worker is out of work for more than three days due to the injury, then the employer also must notify the Illinois Workers' Compensation Commission ("Commission"). The employer also must begin paying the worker temporary total disability benefits or provide the worker with a written explanation of why the benefits have been denied.
Filing a Workers' Comp Claim Against the Employer
If the employer denies an injured worker benefits, then the worker can file a claim against the employer with the Commission. In most cases, workers have three years from the date of injury to file a claim with the Commission.
When the Commission receives a new claim, it will assign an arbitrator to handle the case. Once an arbitrator has been assigned, then the worker or the employer can request a hearing (referred to as a trial) to determine if benefits should be paid. At the trial, the burden is on the worker to explain why he or she is entitled to workers' comp benefits. This often involves the use of expert witnesses, including physicians, to testify about the extent of the worker's injury. While it is not necessary for a worker to have an attorney represent him or her at this hearing, most injured workers have a lawyer handle their claim for them.
Once the trial is over, the arbitrator will issue his or her opinion within 60 days.
Appealing the Arbitrator's Decision
Either the employer or the worker may appeal an unfavorable decision by the arbitrator. Appeals are heard by a panel of three commissioners. The party appealing the decision has the burden to prove why the arbitrator's decision was incorrect during a hearing referred to as "oral arguments." Once the oral arguments are completed, the panel has 60 days to issue its opinion.
Workers who are employed by private employers may appeal the panel's decision in the Illinois court system. Public workers - those who work for a state or local government office or agency - cannot. For these workers, the panel's decision is final and binding.
Contact an Experienced Workers' Compensation Attorney
There are many reasons why workers may need to seek intervention of the Illinois Workers' Compensation Commission. In some cases, it may because their employer denied their initial benefits request. In other cases, it may be because the worker and the employer cannot agree on the extent of the worker's disability, which treatments are "medically necessary" or when the worker has reached maximum medical improvement.
If your employer has denied your request for workers' comp or has stopped paying your benefits, contact an attorney knowledgeable in workers' compensation law to learn more about your legal options.