Richard F. Sharrard, Sr.
Attorney At Law

This Section contains topical news information you might be surprised to learn about in the legal world.

Did You Know That?

1. We have moved!
2. Illinois Driver's Need to be Aware of "Scott's Law":
3. Announcing the Financial Solutions Network!
4. Illinois Workers' Comp Update: The Injured Workers' Benefit Fund is now available.
5. Illinois Supreme Court sets new standard in work-related repetitive trauma cases.
6. Fibromyalgia can be compensable under the Illinois Work Comp Act.
7. Who is covered by the Illinois Workers' Compensation Act?
8. Allstate Insurance Dirty Tricks Alert!
9. If you own a camper with a refrigerator please take note!
10. Changes to the Illinois Workers Compensation Act -
11. Here are the numbers you never heard during the Medical Malpractice debate in Illinois:
12. Assault on Plaintiff's and attorneys continues: IRS opens a new front.
13. Consumer Alert: SBC Long Distance Telephone Service
14. Product Safety: Think twice about those trampolines
15. Election 2004: Kerry v. Bush. Get out the Vote!
16. Missouri Work Comp Insurers Increase Profits
17. The myth of the courts having too many cases being tried
18. The Republican Party continues to erode your right to your day in court
19. Doctors suing insurance companies?
20. Doctors who deserved to be sued #1
21. Illinois Work Place Fatalities
22. Medical Malpractice Insurance Crisis?
23. Madison County Illinois Malpractice Crisis? Not!
24. Overtime suffers another blow in 2003:
25. Tip of the Day: Save those pay stubs!
26. FULL COLLECTION OF MEDICAL BILLS

1. We have moved!
   In mid-January 2008 we moved our offices to a new location in Edwardsville. We are now in the Financial Solutions Network Building, with several other professionals who provide Financial Planning, Accounting, Insurance, Legal Services and a professional Wedding Planner. Please note the new address on the home page and the contact page.
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2. Illinois Driver's Need to be Aware of "Scott's Law":
   Many drivers in Illinois have been hit with heavy fines for failing to comply with this 2002 law. The statute (625 ILCS 5/11-907) deals with any emergency vehicle that has lights and/or sirens activated.

   If such a vehicle is approaching then you must yield the right of way and move to the right to permit safe passage of the vehicle. Most of us are familiar with this requirement. The more aggravating application involves the situation when you are approaching a stopped emergency vehicle that is on the shoulder of a highway that has at least two lanes of traffic going in each direction. In such a case, you must slow down and move into the lane furthest from the lane next to the stopped vehicle "if possible with due regard to safety and traffic conditions.." I recently had a client who felt it was not safe to move over because there was a semi-truck behind her and another vehicle next to her. The Illinois State Police officer pulled her over several miles after she passed him and he proceeded to become very argumentative, even trying to convince her that her car registration was for a different car, which was untrue.

   This law was created because of a tragic accident where a drunk driver struck and killed a police officer stopped on the side of the road. This law has received a lot of criticism because the fines ($100-10,000) can be quite stiff and lots of responsible drivers who do no harm are being punished. The Illinois State Police are really enforcing this law strictly, so be alert on the highways!
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3. Announcing the Financial Solutions Network!
   2008 is the year we have realized a breakthrough in providing professional services to clients. One of the reasons we chose to relocate the office was to be in a building where our clients could have the benefit of "one-stop shopping" for their professional needs. We have, under one roof, the following services:
   • Lexow Financial Services, managed by Larry Lexow, providing retirement planning individuals and management of retirement accounts for businesses;
   • C. Lexow Insurance Advisors, managed by independent agent Christy Lexow, providing a full selection of Insurance products for home, auto, life, business and health;
   • M. Thompson & Co., managed by Kelly Flaherty, CPA, providing full accounting and tax planning services for businesses and individuals;
   • Farmer's Insurance Group, agent Mary Ann Gage, providing Farmer's insurance products for auto, home and life;
   • Lauren Koebel, Attorney at Law, providing legal services for Divorce, Estate Planning and Criminal Defense;
   • Love's in Bloom, managed by Marci Bennett, providing professional wedding and event planning and floral services

   Please visit our website at: www.MyFSNetwork.com

   View a short informational video about the Financial Solutions Network here (coming soon)

   
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4. Illinois Workers' Comp Update: The Injured Workers' Benefit Fund is now available.
   In 2005, one of the amendments to the Workers' Compensation Act sought to remedy the problem of compensating workers whose employers did have insurance to cover their injuries. The Commission began strict enforcement of the requirement to have coverage and employers who did not comply were fined. The Commission has now collected over $3 million in fines to fund the program, so that injured workers can be compensated if there was no insurance at the time of their accident. If you believe you may be eligible for these benefits, please visit the website at: www.iwcc.il.gov/iwbf.htm
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5. Illinois Supreme Court sets new standard in work-related repetitive trauma cases.
   Illinois recognized that injuries from repetitive trauma (carpal tunnel syndrome, for example), are compensable under the Work Comp Act. Until recently, the "date of accident" was determined by when the manifestation of the injury occurred. The courts held that this was when a reasonable person would have understood they had an injury and that it was related to their work. In the case of Durand v. Industrial Commission, (2006), the Court appears to have changed this standard. The rule now requires that the employee be "diagnosed" with the injury as being related to work and this requires a medical opinion. This could mean that people who seek medical treatment for a problem for a period of time may end up being responsible for the cost of that treatment up to the point where there is a conclusive diagnosis. This underscores the importance of giving your doctor a clear history of when your problem began and asking the doctor if, in his/her opinion, the problem is work related. The sooner this question is answered, the better for the employee. The three year time limit to bring a claim begins to run at the time the injury is manifested.
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6. Fibromyalgia can be compensable under the Illinois Work Comp Act.
   Fibromyalgia is a very painful and debilitating connective tissue and muscle disease. Doctors do not really know what causes it, but it can be compensable in Illinois where the onset of symptoms is related to the employment and the treating physician has the opinion that the condition was caused or aggravated by work. Waldorf Corp. v. Ind. Comm'n., 708 N.E.2d 476 (1999).
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7. Who is covered by worker's compensation?
   This is the first in a series of articles to give you information about work related injuries.

   Almost everyone who gets a paycheck is covered by this law. The main exceptions are for independent contractors, such as real estate agents and certain farm employees. Minors and part time employees are covered and the law applies to anyone hired in Illinois or injured in this state, even if they were hired elsewhere.

   Does your employer have to be "at fault" in order for you to be covered?

   The answer is no. Worker's compensation is triggered when you have an accident in the course of your employment, resulting from a risk of your work, which causes an injury. You do not have to prove that anyone was negligent.

   The information here is not legal advice and you should consult an attorney for answers to questions concerning your specific case.
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8. Allstate Insurance Dirty Tricks Alert!
   If you are involved in an automobile accident claim where the other driver has Allstate Insurance please be aware of the tactics they are reportedly using to interfere with the rights of the injured driver. You may need to alert your doctor to this scheme.

   Here is what one of my colleagues, Scott DeSalvo recently reported: He represents a man who was a passenger in a car that was struck by a driver insured by Allstate. The property damage to the car was relatively minor, but the man had immediate back pain and went to his doctor. An MRI showed that he had a herniated disc in his back. He was referred to a neurosurgeon who discussed various options, with the most solid choice being to have surgery and fuse two levels of his spine for stabilization.

   Allstate sent an investigator to tell the doctor words to the effect that: "You know this is a bogus case; there was hardly any property damage; the injury isn't related to the accident and we are not going to pay this claim so you shouldn't treat this patient!"

   This is a direct intrusion on the doctor/patient relationship; if the patient has an attorney it is a clear violation of Illinois law for the other side to have direct communication with the doctor. If the insurance company does not have the patient's permission to talk to the doctor then it is a violation of the HIPPA Laws which protect patient confidentiality. Finally, it is simply outrageous conduct intended to subvert the treatment of a patient BEFORE there has been any determination of whether the person insured by Allstate is even liable for the damages!

   Just remember, from the moment you are injured in an accident, the other side may resort to all sorts of tactics to defeat your claim. You should always seek legal advice immediately.
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9. Consumer Alert: If you own a camper with a refrigerator please take note!
   A Norcold refrigerator in a camper had some cracked tubing that resulted in a leak of flammable hydrogen, resulting in a fire that caused the death of a man and serious permanent injury to his wife. Norcold was apparently aware of this danger as early as 1999. Norcold paid $5.5 million and the camper dealer paid $1.5 million in damages to the Collinsville, Illinois woman who lost her husband. Some 40,000 such refrigerators were recalled, however, these people never got the notice of the defect. If you have a camper or a Norcold refrigerator please have the tubing checked for a fire hazard. This story was reported in the Belleville News Democrat, July 17, 2006.
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10. Changes to the Illinois Workers Compensation Act - An overhaul of the Illinois Workers Compensation Act is going to be signed by the Governor in the near future. The new changes include:
    1. Increased funeral benefits and compensation benefits for families of workers who die from work related injuries;
    2. An increase in the minimum benefits for temporary disability;
    3. Increased benefits for certain injuries, such as amputations and disfigurement;
    4. The creation of a medical fee schedule which should greatly reduce disputes over medical charges;
    5. provisions which may give employers a greater say in what type of medical care is provided;
    6. increased penalties against insurers/employers who do not pay medical bills or disability compensation in a timely fashion;
    7. changes in evidence rules to allow admission of records to speed up the hearing process;
    8. creation of criminal penalties for workers who engage in fraud when making a claim. (Ill.Bar Jr., Vol. 93, No.7, July 2005, p.331,333).
    These changes will go into effect as soon as the bill is signed by the Governor. If you have a work related injury these new changes may affect your rights. Be sure and arrange a free consultation!
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11. Here are the numbers you never heard during the Medical Malpractice debate in Illinois: According the Illinois Business Journal, May 2005, quoting statistics obtained from the Madison County Circuit Clerk's office, here are the actual numbers of case filings between 1996 and 2004. During those eight years, a total of 374 cases were filed. This is an average of about 46 cases a year. 208 of those cases were ultimately dismissed for one reason or another. This means that a total of 166 cases, or about 20 cases per year, were resolved by settlement or trial after filing. Over this eight year period a total of eleven cases went to trial: The injured plaintiff received a verdict in four of those cases; the medical provider won in seven of the cases. In the year 2000, the population of Madison County was about 259,000 people. Imagine how many treatment visits occurred between doctors and patients over an eight year period with a population of a quarter of a million people. If each person in the county had one medical visit per year over that time there would have been about 2 million visits. This is probably a conservative estimate. From these 2 million visits there arose 166 viable lawsuits filed in Madison County. Does this sound like an abnormally high number? Does this really sound like a county buried in malpractice claims? Does this sound like a system out of control? Clearly not. The system is working just fine. Placing caps on damages will only deprive victims of compensation and will do nothing to improve medical care. Don't let the insurance companies fool you. The numbers speak for themselves.
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12. Assault on Plaintiff's and attorneys continues: IRS opens a new front. - The internal revenue code has long provided that income must be reported for tax purposes. When a plaintiff recovers damages that are considered "wage loss" in a case, those damages are taxable as income. When a plaintiff recovers for bodily injury, however, those damages are outside the definition of income and are not taxable. A new Supreme Court case (Commissioner of Internal Revenue v. Banks, No. 03-892, 1/24/2005), addresses the first situation and holds that where the recovery is taxable, the Plaintiff must pay tax on his part of the recovery as well and on the amount he pays to his attorney under the contingent fee contract. So if the attorney does a good job and recovers $3 million for his client and gets $1 million as a contingent fee, the client must declare $3 million as income on his return and the attorney will have to declare $1 million on his return. Who wins here? Not the Plaintiff, not the attorney, but the IRS sure does! Anyone settling a personal injury case where there is an issue of wage loss should definitely consult an attorney to make sure appropriate language is contained in the settlement agreement to protect the client from potentially paying income tax on his attorney's fees. Note, the new American Jobs Creation Act of 2004 provides that attorney's fees and court costs are deductible in suits involving unlawful discrimination.
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13. Consumer Alert: SBC Long Distance Telephone Service - If you have a home or business long distance service and you are considering changing to SBC Long Distance, please think again. I have had service with OPEX Communications for over three years and had excellent service at the lowest prices I could find. SBC contacted me and convinced me they could save me money with a lower rate than I was paying to OPEX. What they did not tell me was that I would be billed higher recurring monthly fees and that I would be billed for a minimum of one minute for each call, whereas OPEX only billed me for the actual time of the call. As a result, my long distance bill went up over 75%. When I called OPEX to switch my service back to them I had the pleasant surprise of finding that their rates had gone down from about 4.5 cents a minute to 1.7 cents a minute! Accordingly, beware of SBC and check out OPEX for your long distance, and 800 number service if you want to save money!
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14. Election 2004: Kerry v. Bush. Get out the Vote! - This is a very important election for many reasons. The country is polarized and divided between the two candidates. Many people feel that neither one is a particularly good choice. Jobs are going over seas. The economy is somewhat stagnant. Fighting terrorism in the middle east is proving more difficult than anticipated. As you know from the last election EVERY vote does count. From the legal perspective, here is what you need to know. The Republican party is the driving force behind a number of movements which include: Putting caps on damage awards; restricting your right to participate in a class action lawsuit; limiting the ability to sue for injury from a defective product; limiting the ability to sue for medical negligence; restricting the right to over time pay; restricting the right to recover punitive damages. The Democratic party, historically, has been the defender of the rights of working people, especially when it comes to their rights and access to the court system and they are fighting the "tort reform" movement. The next President may well have the opportunity to appoint several justices to the United States Supreme Court as well. Please consider these things when you vote!
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15. Product Safety: Think twice about those trampolines - Trampolines are a popular amusement for back yards all over the U.S. They are also very dangerous. Statistics from the Consumer Product Safety Commission for the years 1990-1999 show that trampoline related visits to the emergency room went from about 37,500 to about 100,000 in ten years. During that time there were 11 deaths. Most injuries are to children aged 6-14 and are caused by colliding into each other, falling off the trampoline and doing stunts. About 40% of the injuries were to the leg and foot. If you are considering a trampoline you should not let more than one person jump at a time; always have parental supervision; check your homeowners insurance policy to make sure that coverage for trampoline injuries is not excluded. Remember, if your friend or neighbor gets hurt on your trampoline, they may make a claim against you.
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16. Missouri Work Comp Insurers Increase Profits: The amount paid in claims by worker's compensation insurance companies declined from $600 million in 1991 to $373 million in 1995. Insurer's made a profit of 23.7 cents on each dollar pain in premiums in 1995. (St. Louis Post Dispatch -4/9/97).
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17. The myth of the courts having too many cases being tried: The American Bar Association recently reported a study of the number of trials in Federal Courts in the U.S. In 1962 there were about 50,000 civil cases filed in the Federal Courts and 5802 of those cases, or about 11.5%, were resolved by an actual trial. By 2002 we had 259,000 cases filed, but only about 4662 or 1.8% actually went to trial. Likewise, in 1962, 15% of criminal cases went to trial and by 2002 only 5% went to trial. Similarly, between 1976 and 2002, the number of trials in state courts has dropped by about 28%. The reasons given for the decline are these: 1) Judges are trained to "clear the dockets" quickly; 2) The improved exchange of discovery of facts helps parties reach settlements; 3) The average length and cost of trials has increased; 4) Lawyers who lack trial experience are less likely to go to trial; 5) Judges are more likely to dismiss a case as not worthy of going to trial; 6) Sentencing guidelines make trials riskier for criminal defendants; 7) Corporations view trials as expensive and risky; 8) Alternative Dispute Resolution, such as mediation, improves the chances of settlement; 9) Attorneys are efficient at negotiating settlements. (St. Louis Lawyer, 8/4/04).
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18. The Republican Party continues to erode your right to your day in court: The primary force behind the "tort reform" movement is the Republican Party. Over the last several years there have been continuous attempts on both the state and federal levels to pass new laws that would limit both the ability to bring a case and the amount of damages a jury can award in a civil lawsuit. The primary targets are Asbestos litigation, Medical Malpractice and Class Action law suits. Remember this when you go to the polls. The legal system is not broken and the mass media which sensationalizes individual case results does not present an accurate picture of the system for you. (ABA Journal, 12/6/02).
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19. Doctors suing insurance companies? On 11/12/02 the Chicago Tribune reported a group of Ohio doctors filed suit against a group of insurers for conspiring to reduce the reimbursements paid to doctors for medical services. (ITLA, "Vested Interest", 12/02). And to hear the doctors tell it, the lawyers are the source of all their problems!
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20. Doctors who deserved to be sued #1: A Massachusetts man filed suit against his doctor when the doctor, who was in the middle of a spinal surgery operation, left the operating room for 35 minutes to cash a check a nearby bank. At the investigation by the state medical board the doctor admitted to having "exercised remarkably horrible judgment." Prior to the surgery the patient only had pain on his left side, now he has chronic pain on both sides. (Reuters Foundation 12/4/02).
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21. Illinois Work Place Fatalities: The Chicago Sun-Times (1/22/02), reports that 205 people died in work related injuries in Illinois in the year 2000. That's about one every other day. 40% of the deaths were related to transportation, such as auto accidents. Still, this is a decline from the 249 deaths reported in 1995. Interestingly, the number of construction deaths increased 40% after the Republican legislature repealed the Structural Work Act (ITLA "Vested Interest", Feb. 1997).
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22. Medical Malpractice Insurance Crisis? You do the math: In 2002 the Missouri Department of Insurance conducted a survey of medical malpractice insurance companies. Between 1998 and 2002 these companies collected premiums totaling $1,180,237,000; during that period they paid claims of $687,805,000. The profit was $492,432,000 or 41.72%. It should also be noted that most insurance policies only cover damages up to $1 million, so the verdicts over that amount are not paid by insurers.
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23. Madison County Illinois Malpractice Crisis? Not! If you are exposed to the radio, TV or newspapers in Southern Illinois you have, no doubt, heard the scathing ads and stories decrying the "medical malpractice crisis" in Madison County, Illinois. Interestingly, the office of the Circuit Clerk released a study of Med-Mal cases in Madison County from 1996 to 2003. In that time period there were 320 cases filed and 169 dismissed. Verdicts in favor of plaintiffs were four and verdicts in favor of doctors were seven. The average verdict for a plaintiff was $588,500. Most importantly, there has not been a verdict in favor of plaintiff since 1999. So why are the insurance rates going through the roof? Is it the lawyers who are driving out the doctors or is it the insurance companies?
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24. Overtime suffers another blow in 2003: This is important if you're an employee in the state of Illinois and you have a worker's compensation claim. Two recent decisions have changed the law in calculating the average weekly wage which is the figure that all compensation is based on. Previously, if you worked "overtime" on a regular basis, those hours were included the weekly wage calculation, but at the straight time rate of pay. The new test says that to include overtime hours the employee must show: 1) he was required to work overtime as a condition of employment, or 2) he consistently worked a set number of overtime hours, or 3) the overtime hours worked were part of his regular hours of employment.
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25. Tip of the Day: Save those pay stubs! As an Illinois employee your average weekly wage is based on what you earned, in the job on which you were hurt, during the 52 weeks before you got hurt. Saving your pay stubs will help you and your lawyer make sure you get paid the correct benefits. Also, if you work two different jobs, make sure each employer knows of the other job. That way, if you get hurt and you are disabled from both jobs you can use the income from both jobs to calculate your average weekly wage.
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26. FULL COLLECTION OF MEDICAL BILLS: The Appellate Court in Illinois ruled this year that an injured party may recover the FULL amount of all medical bills in a civil personal injury case. For example: You are injured in a car accident. You go to the hospital and are billed $2500 for emergency room treatment. You turn the bill over to your group insurance carrier which uses its clout to negotiate the bill down to $1500 and the hospital agrees to take that as full payment. When you go to court, however, you are allowed to claim the entire $2500 bill as damages. This involves the application of the "collateral source rule" which says that when you have supplied your own coverage, the defense cannot use that to reduce the damages they would otherwise be liable for. If you did not provide the insurance in the first place, you would have liable for the full $2500 yourself, so the courts feel that the full bill represents the actual value of services that should be recovered. This case is now on appeal to the Illinois Supreme Court...stay tuned!
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Disclaimer:
All contents copyright 2001-2008 by Richard F. Sharrard, Sr. Attorney at Law. All legal rights reserved. The information contained on this website is not and should not be treated as legal advice or counsel. You should consult an attorney for questions involving your particular legal issues. The content of this site may only be used for your personal use, not for commercial distribution and any duplication must contain the copyright notice.