Job Status of Injured Workers is more secure after recent Supreme Court Case.
March 3, 2010

“Can they fire me for this?” That is a question I get asked fairly often when interviewing new clients who are considering filing a workers’ compensation case. In times like these, people have every right to be concerned. It’s illegal for an employer to fire an employee in retaliation for filing a workers’ comp case. Very few employers would be foolish enough to risk being sued for retaliatory discharge by overtly firing someone for no other reason but that the employee exercised his or her right to obtain workers’ comp benefits.

However, I also tell everyone who asks me that question, “watch your back.” Pay special attention to following every workplace rule. Don’t give an employer an excuse to act on some violation that the employer can claim is unrelated to the injury. I’ve seen this happen a number of times. A particular rule that was previously ignored, a conduct that is accepted in other people, an event that seemed like no big deal at the time, can suddenly be the subject of a meeting with the boss.

With this backdrop in mind, I read with interest the recent decision in the case of Illinois Scaffolding v. Illinois Workers’ Compensation Commission. The case raised the question of whether an injured worker, fired for reasons unrelated to the injury, can continue to receive benefits. In short, the answer is yes. An injured worker can continue to receive benefits for as long as he remains disabled from the work-related injury, whether or not he is still employed by the same employer.

“For the reasons stated above, we hold that an employer's obligation to pay TTD benefits to an injured employee does not cease because the employee had been discharged—whether or not the discharge was for "cause." When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant's condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits.”

The case is an important decision and a logical one for all the reasons stated. It is also important in the context of that question I keep getting asked: “Can they fire me.” They still can’t fire you in overt retaliation for filing a workers’ comp case. They still can fire you for “cause” unrelated to the injury. However, because of the precedent set in the above-cited case, employers have less incentive to terminate injured workers for seemingly unrelated reasons. Therefore, we can hope to see less of these terminations in the future. This well-reasoned approach adopted by our Supreme Court protects the injured worker from this type of subtle retaliation. I applaud the ruling.

Prejudgment Interest: The Answer to "Why is this taking so long?"
February 5, 2009

"Why is this taking so long?" That is a question that a plaintiff's personal injury lawyer hears quite often. Personal injury lawyers work on a contingent fee basis. That is, the lawyer does not get paid unless and until the client gets paid. Therefore a plaintiff's lawyer never has motivation for delay. For our opponents, the insurance carriers, it seems that the opposite is true. In many cases insurance companies "reserve" the maximum limits of their exposure shortly after the case is opened, but
manage to avoid paying anything to the injury victim for years. Rumor has it that one company had an unoffical motto of "Deny, Delay, Don't Pay."

Now, there is a bill pending in the state senate that would award pre-judgment interest to injury victims in some cases. Under Senate Bill 184, the Defendant would have 120 days following receipt of notice to make a settlement offer. If a judgment in favor of plaintiff following trial later exceeded the Defendant's offer, then the Defendant would owe the Plaintiff pre-judgment interest from the date of the offer on the difference between the offer and the final verdict.

The proposed law allowing prejudgment interest was proposed by the Illinois State Bar Association. Similar laws have been enacted in 16 other states. This new law would make defendants and their representatives think twice about refusing to make an offer just for the sake of delay. Let's keep our fingers crossed.

Trial Lawyers and World Peace
January 1, 2008

Over the holidays, I was explaining what I do as a litigation attorney to my younger daughter. She said, "I'm happy for you being a lawyer, but I'm afraid that it's contrary to my dreams of world peace." "Actually," I replied, "nothing could be further from the truth." Trial lawyers and world peace go hand-in-hand.

There will always be disputes - disputes amongst citizens, disputes between people and their government, disputes within families, disputes between businesses. Disputes will always arise. Fair, orderly, dispute resolution -justice- keeps our society peaceful.

Granted, our system is not perfect. Not even close. But it very well may be the best system ever devised by mankind.

In our system, everyone has unlimited access to the courts; rules governing the courts are made by our elected representatives; rule-keepers (judges) are elected by the the citizens; and the citizens are the ultimate decision makers (juries).

I oppose any restriction on the right of juries to decide any criminal or civil dispute. We all should. Legislation to protect the negligent, corporate wrong-doers, and profiteering insurance carriers only restricts justice for ordinary people. I prefer to trust twelve of my peers to listen to the facts and get it right.

If we can trust in each other, we can continue to dream of world peace.