Nessler & Associates | Blog

Medical Malpractice Claims: A Guest Blog Post by Percy Martinez

The following is a guest blog post written by Attorney Percy Martinez.  Percy Martinez practices law in Miami, Florida. 

A Medical malpractice claim is a very serious issue. Malpractice lawsuits tend to be costly and tedious. If you were to compare most personal injury claims, the cases tend to show preference towards doctors and medical professionals, not the person filing the lawsuit. Negotiating a settlement can be harder in a malpractice case as well, most of the time it's very difficult to sway the doctor to settle even if the insurance company is willing to settle.

Nessler & Associates Q3 2016 Newsletter

The Q3 2016 Newsletter for The Law Offices of Frederick W. Nessler & Associates, Ltd. is now available!  Please take a moment to visit our website at www.nesslerlaw.com to view our newsletter and to review the most up-to-date information about Nessler & Associates.

Over the course of the next few issues, the Nessler & Associates’ newsletter will focus on introducing our staff to our clients.  The staff at Nessler & Associates is excellent.  They are hardworking and highly competent.  The staff is necessary to ensuring that our clients receive excellent representation.

Each staff member will be introduced, during the course of the next several newsletters.  They will be introduced in order of the amount of time they have been a member of the Nessler & Associates’ team.

The Contingency Fee System Balances the Scales of Justice

The contingency fee system allows a person of conventional means who has been injured due to the negligence of another to retain a highly qualified attorney, who the injured person might not be otherwise able to afford.  This payment system permits an injured person to “even the playing field” against the deep pockets of those entities who are almost always paying for the negligent person’s defense.

Who Is Liable When a Drunk Driver Injures a Passenger, Another Driver or a Pedestrian?

Driving under the influence of alcohol is dangerous and irresponsible.  An individual driving a vehicle while intoxicated will be held liable in Illinois for injuries caused by the intoxicated driver’s negligent acts.  In some circumstances, additional persons or entities might be liable for the intoxicated person’s actions.  For instance, the establishment responsible for overserving the intoxicated patron might be liable for injuries caused by the negligent actions of the intoxicated person.

Injured Workers Should Notify Their Employers About a Work Related Injury as Soon as Practicable

In order to be protected under the Illinois Workers' Compensation Act, an injured worker must give notice of his injury to his employer as soon as practicable, but not later than 45 days after sustaining an accidental injury arising out of the employment. 820 ILCS 305/6(c).  If the employee does not notify his employer that he was injured, the failure to give notice will bar the claim.  Ristow v. Industrial Commission39 Ill.2d 412 (1968).

Texting While Driving is Dangerous, and It’s Getting Worse

Distracted Car Accident Lawyer

Texting while driving creates distracted drivers.  Distracted drivers are dangerous drivers.  Now-a-days cellphones allow cellphone users to do much more than send text messages and place phone calls.  As the functionality of cellphones increases, so do the number of distractions and distracted drivers.

The Center for Disease Control recognizes three main types of distractions while driving:

  1. Visual Distractions, such as taking your eyes off of the road;
  2. Manual Distractions, such as taking your hands of the wheel; and
  3. Cognitive Distractions, such as taking your mind off of driving. (CDC)

Sending a text message, or otherwise using a cellphone while driving causes all of the main types of distractions recognized by the CDC. 

In 2013, 424,000 people were injured in motor vehicle accidents caused by distracted driving, according to the CDC. This number is up by almost 10% over 2011.  Distracted drivers caused nearly 1 in 5 car crashes in which someone was injured in 2013, according to the CDC.

Texting while driving creates a major safety concern.  When driving 55-miles-per-hour, the average text message takes a driver’s eyes off of the road for a distance greater than a football field, according to the National Highway Traffic Safety Administration.

Illinois law makers expressly recognize the danger associated with distracted driving.  Operating a cell phone while driving is a crime in Illinois.  Illinois law states, in pertinent part:

(a)  As used in this Section:
“Electronic communication device” means an electronic device, including but not limited to a hand-held wireless telephone, hand-held personal digital assistant, or a portable or mobile computer, but does not include a global positioning system or navigation system or a device that is physically or electronically integrated into the motor vehicle.
(b)  A person may not operate a motor vehicle on a roadway while using an electronic communication device.
(b-5)  A person commits aggravated use of an electronic communication device when he or she violates subsection (b) and in committing the violation he or she was involved in a motor vehicle accident that results in great bodily harm, permanent disability, disfigurement, or death to another and the violation was a proximate cause of the injury or death.
(c)  A second or subsequent violation of this Section is an offense against traffic regulations governing the movement of vehicles. A person who violates this Section shall be fined a maximum of $75 for a first offense, $100 for a second offense, $125 for a third offense, and $150 for a fourth or subsequent offense.  625 ILCS 5/12-610.2 (West 2016).

Texting while driving is not only a violation of criminal law.  Texting while driving is also a violation of a driver’s civil duty to other drivers on the roadway.  If a driver causes an accident, because that driver is operating a cell phone, and the accident injures another, the driver will be held liable in civil court for money damages to compensate the injured person. 

With widely popular cellphone games like Pokémon Go, the number of distracted drivers is steadily increasing.  A safe driver cannot be expected to account for the negligence of a distracted driver.  Instead the problem of distracted drivers must be addressed.  To stop this problem, individuals operating a cellphone while driving must be held accountable both criminally and in civil court. 

Jonathan T. Nessler to Serve Three Year Term as ISBA Assembly Member

Jonathan T. Nessler has been elected to serve a three-year term as a member of the Illinois State Bar Association (ISBA) Assembly.  Jonathan Nessler is enormously grateful that he was elected to this position, and he is honored that he is able to serve the ISBA as an Assembly Member.  

The ISBA’s stated goal is to “provide professional services to lawyers, and education and services to the public,” according to its website. The ISBA has been working towards this goal since it was founded in 1877.  The ISBA is a private, not-for-profit corporation with more than 30,000 members.  Each of its members “strives to improve the legal profession and expand access to justice.”

When is a Condition of Ill-Being Compensable Pursuant to The Workers' Compensation Act?

The Workers' Compensation Division of the Illinois Appellate Court reviewed important legal concepts in determining causation of an injured workers' condition of ill-being in its recent opinion, unteman v. The Illinois Workers' Compensation Commission.  

The Court begins its analysis by reviewing several fundamental legal principles of causation.  The Court notes that causation of an injury, and the resulting condition of ill-being, presents a question of fact.  This factual analysis is performed by an arbitrator and, on review, the Workers' Compensation Commission.  The decision of the Workers' Compensation Commission will not be overturned, unless the decision is against the manifest weight of the evidence. 

To obtain compensation, the injured person must first show that his injury arose out of an in the course of his employment.  Once this is shown, every "natural consequence that flows from the injury . . . is compensable under the act absent the occurrence of an independent intervening accident that breaks the chain of causation between the work related injury and the ensuing disability or [condition of ill-being]." Citing National Freight Industries v. Illinois Workers' Compensation Comm'n, 2013 IL App (5th) 120043WC, ¶ 26, 993 N.E.2d 473.  The work related injury does not need to be the only cause of the condition of ill-being, or even the primary cause.  The worker will receive compensation for the condition of ill-being, provided that the work related-injury was a cause.  If there is a "but-for" relationship between the work-injury and the condition of ill-being, the injured worker is entitled to compensation under The Workers' Compensation Act.  

The Court's opinion can be found here: http://www.illinoiscourts.gov/Opinions/WorkersComp/2016/4150543WC.pdf

If you have been injured at work it is immensely important that you hire an attorney to protect your rights.  The Law Offices of Frederick W. Nessler & Associates, Ltd. has been protecting the rights of injured workers for over 35-years.  We aggressively help injured workers obtain the compensation they need, and provide the representation they deserve.  

Case Brief: Bolingbrook Police Department v. Illinois Workers’ Compensation Commission

Holding:   The Appellate Court affirmed the Commission’s decision and claimant was awarded 100 weeks of PPD benefits (20% Man as a Whole), 5 and 2/7 weeks of TTD benefits, and all reasonable and necessary medical expenses under the Workers’ Compensation Act for his injuries.

Facts:   On February 17, 2009, Claimant, Michael Toles, a police officer for the Bolingbrook Police Department, severely injured his back at his home as he loaded his duty bag into his personal vehicle while preparing to leave for work.  The duty bag contained his vest, helmet, firearm, ammunition, etc. that he needed to perform his duties as an officer and weighed approximately 40 lbs.  Officers were required to keep their duty bags safe at all times, and many took their duty bags home with them at the end of their shift.  

With regard to this injury, although the duty bag was fairly heavy, Mr. Toles had a medical history of diagnosed back problems since 2002 that included degenerative disease and a bulging disc.  He had been treating for those problems conservatively with chiropractic care, physical therapy, and steroid injections for several years and had shown some improvement.  However, the act of lifting his duty bag into his vehicle on that morning caused his previously manageable back problems to become incapacitating and require surgery.  

The Arbitrator that heard the case awarded benefits and that ruling was upheld by the Commission.  The employer appealed.  The employer’s challenge of that ruling was two-fold.  First, the employer argued that the employee did not sustain an accident that arose out of and in the course of his employment.  Second, the employer disputed that the employee’s condition of ill-being was not causally related to the alleged accident on February 17, 2009.

Reasoning:   As it relates to the employer’s first argument, the Court stated that claimant’s duties relating to the safe-keeping of his duty bag directly furthered the employer’s interests.  They further stated that the direct benefit to the employer when an officer performs tasks to keep these bags, containing his firearm, live ammunition, and other things, is substantial and self-evident.  As such, the employer has a direct interest in seeing that its officers protect that equipment.  Here, the claimant was injured while performing actions that were directly related to this job-related task.  

With regard to the second challenge, the Court stated that the employee had been receiving conservative treatment and that his records indicate he had shown some improvement.  They further noted that his doctor stated that Mr. Toles “was functionally quite well” prior to the accident.  The Court also discussed the fact that surgery had not been prescribed by his doctor nor did his doctor feel that the patient was symptomatic enough to require surgery prior to the accident.  As such, they stated that the Commission was well within its prerogative to find that the claimant’s work-related accident aggravated or accelerated his pre-existing back condition and was a causative factor resulting in his back surgery.

Conclusion:  In sum, there are two points of emphasis that can be taken from this case, both of which are positive for employees.  First, a work-related injury may be sustained while performing an activity that would normally be considered outside of a claimant’s job duties and at a place normally outside of the scope of the employment if the activity being performed was for the benefit of the employer and was an activity that the employer could reasonably expect the claimant to perform.  Second, a claimant may receive benefits for a work-related injury, despite being diagnosed and receiving extensive treatment for a pre-existing condition, if the accident that caused the injury is an aggravation or acceleration of that pre-existing condition.

Happy Love Your Lawyer Day

n case you didn’t know, Friday is “Love Your Lawyer Day” — yeah, it’s a thing apparently, and has been for the past 15 years.

This is the first year, however, that the day has been recognized by the American Bar Association Law Practice Council, which passed a resolution in late October to recognize the special day on the first Friday of each November going forward.

The McDonald's Coffee Case: The Real Story

The New York Times looks back to the McDonald's hot coffee case and explores the urban myths that surround the that case.  This piece does an excellent job delivering the facts about the case, and explains a few reasons why so many myths exist about what happened.  

What is the deadline to file a workers' compensation claim?

In Illinois, there is a concept known as a statute of limitations.  A statute of limitations prescribes the time frame that limits when an injured worker is allowed to file a workers' compensation claim against his employer.  This is not the only time frame that might act to bar a worker's ability to file a claim.  A worker must also notify his employer that the worker was injured on the job within a certain time frame.  If a workers' compensation claim is filed after the statute of limitations expires, or no notice of injury is provided to the employer within the time set forth in the Act, the worker will likely waive his right to receive any benefits, and his claim will be forever barred.