A Letter To An Injured Worker

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[My name is Eric Kirkpatrick. I am a workers compensation attorney in Belleville, IL. The following letter is a response to a prospective client who contacted me to discuss his foot injury that occurred while working at a factory in Southern Illinois. He was concerned about the status of his insurance benefit while he was off work, lost wages. I changed the client’s name and replace his company’s name with [Your Company]. ]

Mike,

Thanks for contacting me. You raise some good points, and a person sometimes does have reason to feel “punished” when they have an injury at work. I wish things were different, but the remedies under the Workers Compensation Act are limited.

Let’s start with the answers to your concerns and then I will address what you are entitled to receive.

1. Unfortunately there is no provision that requires an employer to maintain insurance while a worker is off for a work injury. Most employers allow a person to pay their share of the insurance out of their pocket while they are off, but just as in your situation, many folks cannot afford it. It should kick back in when you return to work. This is no way to recover this specific loss of insurance. I wish there were; but there simply is not.

2. As far as your full lost wages, the law provides that you are entitled to payment of 2/3 of your “average gross weekly wage” (before tax income) taking into account the weekly income of the previous 52 weeks before your injury. This is known as Temporary Total Disability, or TTD. Weeks or days you might not have been working due to shut down are taken out of the equation and if you didn’t work a full 52 weeks, then it is the number of weeks you did work in the prior 52. There is no provision available for you to receive that extra 1/3. However, I explain below what you are entitled to and how this “average weekly wage” is calculated.

Let’s now discuss what you are entitled to with a work comp case and then if you want we can talk on the telephone about more details. (I would have called you in the first place, but there is a lot to understand over the telephone.)

1. You are entitled to payment of the medical bills for treatment related to your injury.

2. You are entitled to the TTD above when you are completely unable to work. Where [Your Company] and other employers take advantage of people is on the calculation of the wage. Many employers don’t include the overtime· pay and just base the TTD on a regular 40 hours. However, if you were “regularly and continuously” working overtime, OR if it was mandatory overtime, these extra hours are included in the calculation of your average wage, but at the regular hourly rate. So, for example, if you were regularly working 50 hours per week and making $25/hour, the wage would be 50 multiplied times $25, rather than the time and one-half pay or double time rate you would have actually received. THIS IS ISSUE NUMBER 1FOR US TO LOOK AT.

3. Another thing that might be at issue in your case is ‘that sometimes when people are released to light duty they are limited to working only 40 hours when they would otherwise be working SO. If you were on light duty and not getting the same number of hours, you could be entitled to something called “temporary partial disability” which means 2/3 of the difference between the light duty weekly earnings and your true average wage. I have seen this more at [Your Company] than other employers . THIS MAY BE A SECOND ISSUE TO DISCUSS.

4. You are also entitled to an award for the Permanent Partial disability ( PPD) associated with your injury. This is not pain and suffering, but is compensation for th e permanency associated with your injury. By this I mean it is not compensation for what you went through, but what you are left with once all of your treatment is finished. Your injury would entitle you to an award or settlement as people commonly refer to it. It is calculated based on a number of weeks that the whole foot is worth.

Now some cautionary advise for you.

1. This case isn‘t finished until you say it is and you should consider your medical status before you settle it. I usually tell folks to wait and see how things go after they are actualIy back to full duty work for a while.

2. Once you settle it, it is done; no more medical treatment. Even though the doctor has released you to full duty 5/24 and may not want to see you again, us ould wait and see how it goes. The company may make you think you can’t go back to the doctor but nothing is closed on your case unless and until you sign a settlement contract. Again, this case isn’t finished until you say it is. You control that.

3. The Act provides that you can see two doctors of Your own choosing and anyone in the chain of referral from those two doctors. If you need or want t9 see another doctor, they have to pay for it.

4. [Your Company] may offer you a settlement. The PPD award or settlement is calculated based on 60% of YOUR gross wage. Not everyone’s is the same. DO NOT compare what they offer to you with the dollar amount another person may have gotten for a similar injury. What you want to know is the “percentage of loss of use” that they are offering you. The more money a person makes, the higher the award. This is why you can’t compare yours to another person’s especially if they were working at a different company. Example: a guy from [Your Company] called me about a shoulder injury. He really thought he did well on his case because [Your Company] settled with him for about $10,000.00 more money for his injury than his buddy received for essentially the same injury while working at Walgreens where the person made a lot less money. I ran the numbers for him and figured out what percentage of loss [Your Company] offered him. The [Your Company] guy made a huge mistake by comparing the dollar amount versus the actual percent of loss of use .

5. There is a myth that the lawyers who represent folks just have a special book and that we look up the percentage of loss and that’s that. That isn’t the situation at all. Those of us who handle large numbers of workers compensation cases know the arbitrators, they have arbitrated a large number of cases, and have a pretty good idea what an arbitrator is going to award based on prior experience.

Mike, this is a long email. Sorry. I tried to set forth all of your issues and give you sort of a snapshot of what you need to know. There are a lot more details, but above are the basics that apply to your situation. I am not the best typist in the world, so please disregard any typographical errors.

Feel free to call me to discuss your case in more detail if you would like. I have handled a number of cases for CTNA guys and know how they work.

Eric W, Kirkpatrick
Kirkpatrick Law Offices, P.C.