The worker’s compensation attorneys of Lipkin & Apter were contacted by J.P., a 57 year old laborer at a suburban Illinois bus company who injured his back while lifting a large box in 2007. After conservative medical treatment, consisting of physical therapy and epidural injections, failed to alleviate J.P.’s pain and disability, he underwent back surgery in 2009. Following surgery, J.P. continued to have work restrictions, and he could not return to his regular job or lift more than 10 pounds. J.P.’s employer did not have work available for him at this level, so J.P. continued to receive Temporary Total Disability (TTD) equal to ⅔ of his pay while he was away from work. Under Illinois Workers Compensation Law, if an employer cannot accommodate workplace injury restrictions, it is obligated to continue paying TTD benefits.
In 2011, after an independent medical evaluation, J.P. underwent a second back surgery. This surgery resulted in partial improvement, but J.P. remained unable to return to his job as a laborer without lifting restrictions. Again, the employer elected not to accommodate the restrictions, and continued to make TTD payments in addition to paying all medical costs.
J.P. was ultimately advised by his doctors that he had a choice to either undergo a third surgery, a lumbar fusion, or make the best of his pain. Under Illinois Workers Compensation Law, an injured worker must comply with reasonable medical treatment. This requirement does not extend, however, to surgery - as surgery necessarily entails risks that a person may seek to avoid. Having been injured in the service of the employer, neither the employer nor its workman’s comp insurance carrier has the right to insist that the injured employee undergo risk of further harm for the employer’s financial benefit.
Having already undergone two surgeries, J.P. was not interested in a third surgery. Accordingly, he was considered to be at “maximum medical improvement (MMI).” MMI occurs when no further medical treatment will improve a patient’s condition, or when treatment is reasonably refused.
Lipkin & Apter negotiated a settlement of J.P.’s workman’s comp claim on the basis of wage differential - a calculation of 2/3 of J.P.’s wages when injured, and what he would be expected to earn at a job accommodating his light duty work restrictions. This calculation extends throughout J.P.’s lifetime. In 2011, Illinois Workers Compensation Law was changed. Thereafter, wage differential is only calculated until age 67, or five years from the date the case is resolved, whichever is later. On behalf of J.P., and with his prior approval, we negotiated a wage differential settlement in the amount of $200,000.
If you or someone you love has been involved in a workplace accident that resulted in injuries, like our client J.P, contact the lawyers of Lipkin & Apter to assist with your workman’s comp claim.