Personal Injury News & Developments

Contractor Pays Out on Slip and Fall CaseA general contractor agreed to a $3.5 million settlement with an injured construction worker in December of 2015 for an injury he sustained in December of 2007. While attempting to move a heavy cart, he slipped on a patch of ice and twisted his back in a manner that caused serious and permanent injuries. The Chicago construction accident attorneys of Rosenfeld Injury Lawyers encounter many cases where employer negligence results in the permanent inability of a worker to return to his or her regular duties. In this case, the worker received compensation for the ongoing pain and suffering he must endure as well as his inability to return to his occupation for the rest of his life.

Ice on Concrete Causes Slip and Fall

Kevin Montgomery was working for a subcontractor that was serving Bovis Lend Lease Inc. at the time of his injury and alleged in his lawsuit that Bovis failed to halt work or provide a safe work environment under wintry conditions prior to his accident. He and two other workers were asked to move several large and heavy carts of plywood that were on the 61st floor of the One Museum Park East condominium complex and as they were moving a cart so that it could be lifted by a crane, he stepped on a patch of invisible ice and injured his spine.

After undergoing two different lumbar fusions in the years to follow, he finally felt some relief from the constant nerve pain he was enduring. He was never able to return to work, however, and eventually developed a condition called arachnoiditis in which inflammation within the spine triggers constant pain signals. Over time, the condition causes scar tissue to develop and the victim experiences pain that cannot be treated with any form of medication or rehabilitative treatment.

Montgomery is now unable to return to any form of work in the construction trade and his constant pain makes it impossible for him to find or maintain work in a different field. He filed a lawsuit against Bovis in 2010 and Bovis initially claimed that Montgomery was responsible for the accident because he did not exercise enough caution while lifting the cart. The company Montgomery worked for had a contract with Bovis that included a provision stating that Bovis needed to clear snow and ice when needed or requested, however.

The $3.5 million settlement agreement came only one day before a Cook County judge was due to make a ruling on the case and the willingness of Bovis to settle could have been an indication that the company was not confident in its chances of having the case ruled in its favor. The primary issue of contention was whose responsibility it was to remove the snow and ice which had accumulated on the premises, but once it had become clear that the liability issue was going to be resolved in Montgomery’s favor, Bovis provided a settlement offer that Montgomery was satisfied with.

Learn More about Your Rights

If you have been injured in a construction accident, you may feel as though it is you against the world. Rosenfeld Injury Lawyers can help you understand your rights so that you are not taken advantage of by your employer or its insurance company when handling your claim. Most workers injured on the job now prefer to defer to the advice of seasoned legal representatives who can ensure that they recover every bit of compensation the law affords.

Contact us today to arrange a free consultation with one of our award winning Chicago construction accident attorneys so that we can collect the information we need to start building your case. We will review your legal options with you at the location of your choice and let you know how we can ensure the greatest chance of a successful recovery on your behalf. If we cannot secure damages on your behalf, our services will be free of charge.

Choking in Nursing HomesThe family of an Illinois man who died after choking has filed a lawsuit against the nursing home in charge of his care, alleging that nursing staff did not take adequate preventative measures or supervise the victim while he was eating. The Illinois nursing home abuse attorneys of Rosenfeld Injury Lawyers routinely encounter nursing facilities that fail to supervise patients that are at an elevated risk of choking. As more for-profit facilities appear across the state, it is becoming increasingly common for facilities to operate on barebones staff levels and be unable to provide the care or supervision that patients deserve.

Family Files Lawsuit under the Illinois Nursing Home Care Act

The Cardwell family has brought the lawsuit against Manor Care of Palos Heights, which was responsible for the care of their relative, Gerald McNamara. McNamara died after choking on his food and his family claims that the accident would not have occurred if staff members had provided assistance and supervision during his meals. Assistive measures that would have prevented his death included cutting his food into small pieces for him and having a staff member present while he ate.

Manor Care is a nursing home chain that has a soured reputation across the state. Its facilities have received mixed ratings from Medicare through its nursing home compare tool and one of the common deficiencies cited for its facilities is the lack of adequate staffs for its homes. The lawsuit brought against Manor Care also names several nursing staff members and the doctor responsible for McNamara’s care.

Risk Factors for Choking

Certain medical conditions can increase a nursing patient’s risk of choking. Among these are many neurological disorders that impact the nervous or muscular systems, including multiple sclerosis, muscular dystrophy, Parkinson’s Disease and Alzheimer’s Disease. Certain cancers, strokes and injuries to the spine can also affect the ability of a patient to swallow properly. Muscle weakness can also result from age and the elderly are generally more likely to have difficulty swallowing than any other age group.

If a patient is at risk for choking, an individualized care plan must have provisions included to address this risk. These provisions include an assessment of what types of food the patient is permitted to have and what form these foods must be served in. Instructions are to be included in the patient’s chart so that any caregiver can easily access them and follow them accordingly. Patients at risk of choking should never be allowed to eat without supervision and in some cases, a caregiver may be required to provide assistance throughout the meal if the patient is unable to eat on his or her own power.

Defending the Rights of Your Loved One

If your loved one was injured due to neglectful care or the lack of adequate provisions or preventative measures, you may be entitled to compensation. Rosenfeld Injury Lawyers can help you find the justice you are seeking by holding negligent facility accountable for its misdeeds. In addition to helping you recover the compensation that you are entitled to on behalf of your loved one, we can also assist you in moving any loved ones who are in a poor environment into a nursing facility that will more adequately offer the care that they deserve.

Contact us today to arrange a free consultation with one of our Illinois nursing home abuse attorneys so that we can gather the information we need to investigate and build your case and so that we can review your legal options with you. We work on a contingency fee basis, so you will never be required to pay upfront attorneys’ fees and we will only receive payment once we have secured compensation on your behalf.

Preventing Winter Crashes with Winter Like ConditionsTruck drivers are receiving a crash course on winter driving through the use of a state of the art simulator that mimics actual road conditions in inclement weather and allows drivers to learn how their vehicles will respond under varied situations. The Chicago trucking accident attorneys of Rosenfeld Injury Lawyers have found that commercial truck drivers often overestimate their abilities during cold weather and believe that this tool can help make the roads much safer if all drivers were required to participate in cold weather simulations. Since commercial trucks are capable of catastrophic levels of devastation, the prevention of accidents is instrumental in reducing the number of truck related fatalities.

The Michigan Center for Truck Safety Leads the Way with Innovative Training Technology

For nearly eight years, drivers and truck companies have been able to use driving simulations offered by the Michigan Center for Truck Safety to educate and test drivers using multiple scenarios and challenges. The purpose is to show drivers the exact response of a large semi-tractor and its trailer under specific conditions so that they can make real life adjustments to their habits that will save lives. This is an invaluable tool when training new drivers because they are able to make errors or miscalculations without causing any harm to others on the road.

Older drivers are coming away from simulations with different perspectives as well, as the simulations challenge their own habits and assumptions by showing how excessive speeds during cold weather or oversteer and understeer can affect the truck and its trailer. Speeding, following too closely and overconfidence are the cause of many accidents across the nation each year, and the simulator is showing drivers just how important it is to slow down and drive appropriately for conditions.

The Lessons are the same for the Rest of Us

Our Chicago truck injury lawyers recognize that the motorists who share the roads with trucks are just as responsible for keeping the roads safe and may not always respect the limitations that commercial truck drivers face. These simulations show the impact of cutting in front of a truck without giving it enough space to react and the catastrophe that can result when following a truck too closely. For example, it is a good idea to advance at least two truck lengths ahead of a semi before moving in front of it, as this will allow the driver enough space to slow down in the event you have the sudden need to stop.

If you are driving in cold weather, be aware of how the cold may impact the ability of trucks to stop or make sudden maneuvers. Ice and snow greatly reduces a truck’s stopping distance and can cause a jackknife if the truck driver is forced to turn too quickly. Giving truck drivers enough space is an excellent practice regardless of whether it is cold, wet, dry or warm out and can prevent needless accidents.

Defending the Rights of Truck Accident Victims

Rosenfeld Injury Lawyers has represented thousands truck accident victims and their families following catastrophic accidents that have changed their lives forever. Our access to a comprehensive network of medical specialists, expert accident reconstruction specialists, social workers and an award winning legal team allow us to help you receive the specialized care that you deserve and to make sure that you recover the compensation needed to pay for it.

Contact us today to arrange a free consultation with one of our qualified Chicago truck accident attorneys to learn more about your legal options and what we can do to provide you with the best chances of a successful recovery. We work on a contingency fee basis, which means we guarantee that we will only collect a fee when after we settle or win your case. If we cannot do so, our services are free of charge.

Collapse Leads to Death in Construction AccidentA tragic accident at Ford’s assembly plant in Chicago claimed the life of a construction worker earlier this month and critically injured another who attempted to assist the first worker. Whenever an accident claims the life of a worker, the Chicago construction accident attorneys of Rosenfeld Injury Lawyers always pose the question of whether the incident could have been prevented with more adequate safety measures or policies designed to protect employees from workplace hazards. If you have lost a loved one or suffered serious injuries due to a workplace accident, it is important to know your rights so that you may recover the compensation you and your family are entitled to.

Accidental Wall Collapse Determined as the Cause of Worker’s Death

John Jaloway was killed after an eight foot by eight foot concrete wall collapsed at the assembly plant located at 126th and Torrence Avenue. His death was the result of multiple blunt trauma injuries that he received during the collapse. He was 45 years old. Another worker attempted to rescue Jaloway during the incident and suffered critical injuries during the attempt.

The unnamed man was rushed to Advocate Christ Medical Center. After review, the Cook County medical examiner’s office ruled the death and injuries an accident and Ford has been cooperating with an ongoing investigation. Jaloway’s family may be entitled to compensation on the ground of wrongful or accidental death if it is determined that the accident was the result of negligent or reckless actions or procedure.

The Rights of Construction Workers and Their Families

Workers’ compensation laws require employers to insure their employees in the event they are injured while performing their duties. Regardless of whether an employee is at fault for an injury, he or she is entitled to receive compensation for the cost of emergency medical treatment, rehabilitative therapy and two thirds of his or her earnings while incapacitated. If the worker is killed due to injuries sustained in the accident, his or her family is entitled to a death benefit. The value of this benefit can vary based on factors such as whether the victim had surviving children and the level of dependency his or her family had on the income he or she provided.

Our Chicago workers’ compensation lawyers encounter clients who are not aware of their rights following an injury or death to a member of their family. All of the benefits listed above are guaranteed regardless of whether the victim was at fault for an accident, which is important to consider when filing a claim. If an employer’s negligence contributed to an incident or was the direct cause, you may be entitled to additional compensation, including potential punitive damages meant to deter negligence employers from continuing their irresponsible behavior.

Up to 85% of workers who are injured seek legal advice prior to filing workers’ compensation claims, primarily due to the measures that employers and their insurance companies may take to limit their financial liability. Rosenfeld Injury Lawyers has helped thousands of workers and their families when a workplace accident has resulted in serious injuries, a permanent disability or the loss of a loved one.

Contact us today to speak with one of our award winning Chicago construction accident attorneys so that you can review your legal options and learn more about your rights during a free case review. We will also collect all of the information we need to investigate your accident and assess the value of your claim. We work solely on a contingency fee basis, which means you are guaranteed we will never charge you a thing for our services unless we can secure compensation on your behalf.

Cyclist and Snow Make a Dangerous CombinationWinter weather can be treacherous for motorists, bicyclists and pedestrians alike, but the inability of the City of Chicago to clear bicycle lanes consistently following snowfall forces bicyclists to share lanes with traffic. The Chicago bike accident attorneys of Rosenfeld Injury Lawyers feel that bicyclists are exposed to enough risk already during the winter and that the city should be held responsible when its failure to provide safe lanes to bicyclists results in accidents and severe injuries. Over the last year, those riding their bicycles in the winter months have been unable to anticipate whether they will have access to cleared lanes after each snow storm.

Snow Removal is Inconsistent at Best throughout the City of Chicago

Some bike lanes throughout the city have seen more attention than others. Following snowfall over Thanksgiving, for example, it took over two days for city crews to remove snow from the protected bike lanes located throughout the West Side. It took over a week for bike lanes to be cleared following the snowfall occurring at the end of the year and some bike lanes still remain blocked. In some areas, motorists were still clearing their cars in order to gain access to the roads while others had no clearance up to eight feet from the curb.

If cars are having trouble gaining access to city streets, the difficulty for bicyclists is even greater, and they are being forced to share lanes with vehicles amid conditions that make it more difficult for motorists and bicyclists to come to sudden stops or perform evasive maneuvers. If you notice that a bike lane has not been cleared of snow at any time, the city is now urging people to send reports via email to cdotbikes@cityofchicago.org.

City Offers Promise to Make Bike Lanes Available Year-Round

The Mayor’s Bicycle Advisory Council had its last quarterly meeting last month. During this meeting, Mike Amsden, the Assistant Transportation Planning Direction of the Chicago Department of Transportation vowed to maintain access for bicyclists throughout all four seasons. His aspirations included having all bike lanes cleared within 24 hours of snowfall, but the city has failed to meet this goal the last two times the city has seen an accumulation of snow.

In order to clear bicycle lanes, special equipment must be used that can include smaller vehicles and plows. Flexible street posts along routes with a two inch snow parking ban are also being removed to make it easier to open lanes for bicyclists. Complaints about blocked paths are still pouring in, however, such as blockages along Lake Street and Jackson.

The inability of the city to keep its promise to provide safe access to bicyclists during the winter months is placing many bicyclists at risk of being hit by vehicles by forcing them to move into the street. When the failure of the department of transportation to provide safe lanes to bicyclists is an influence in an accident, the City of Chicago may be held liable for any accidents that result.

To learn more about your rights, contact one of the Chicago bicycle accident attorneys of Rosenfeld Injury Lawyers to arrange a free consultation. We have helped thousands of bicyclists just like you recover compensation following accidents that were the fault of others and have the knowledge and experience to help you too.

Chicago and Bike LanesIn October 2015, the Active Transportation Alliance (ATA) announced its longer-term goals and five-year vision for maximizing the network of trails and bike lanes throughout Chicago. The bike advocacy group is strongly proposing the addition of 50 more miles of bike lanes within the next four years through the installation of additional buffered, protected bike routes, neighborhood greenways and urban trails.

The ATA report titled “Bikeways for All” proposes installing “low stress bike routes” primarily defined as bike lanes that physically protect the cyclist for motorized traffic on Chicago’s busiest streets. The alliance hopes that the installation of the new protected bike lanes provides a similar experience to bicycle riding on many of the community’s off-street trails. The additional bike lanes would be designed to eliminate the fear that many bicyclists have of riding in heavy traffic.

Mayor’s Office Commits to Bike Lane Construction

The ATA report noted that many of the shared bike lanes and standard bicycle lanes used for bikes and vehicles “have missed the mark when it comes to spurring new riders.” A 2014 survey statistics show that approximately 1.7 percent of work-bound Chicago commuters – an estimated 21,000 individuals – ride bicycles. However, in populated cities of over 1 million, Chicago ranks second behind Philadelphia that has 1.9 percent bicycle commuters.

The ATA is urging Mayor Manuel’s administration to make a solid commitment in constructing an additional 100 miles of the proposed 180 new miles of bike lanes by 2020. This commitment would include bike lanes on low-speed residential streets as a way to connect public transportation to schools, parks and stores along with low traffic marked bicycle lanes and physically protected bike routes. The ATA also hopes that the mayor’s office will commit to off-street urban trails constructed along Chicago River and the lakefront.

A Benefit to Many

If the Active Transportation Alliance gets its way with the newly proposed bike lanes, eight out of every 10 Chicagoans would reside within a quarter of a mile of one of the many low stress bicycle routes. Currently, only one in three city residents have quick access to existing bicycle routes.

Bike riding throughout the community will be crucial to the economic future of Chicago and could attract many new employers to the community. When bicycling is made safer and more convenient, many more individuals will become active in bicycling, which will likely produce a positive impact on Chicago residents’ quality of living. Some of these benefits would include:

  • Improved overall physical health
  • Enhanced economic development
  • Reduced transportation expenses

The 2020 Chicago’s Streets for Cycling Plan will implement a bold goal to install a world-class bicycling network throughout the community by providing more bike ways to areas where more individuals reside.

Senior Citizens Embracing New Bike Infrastructure

Even the Illinois AARP is on board with improving the city’s transportation infrastructure. The organization recognizes that revving up many of the existing advocacy efforts for providing the community with alternative forms of safe transportation can improve the health of older citizens. Illinois AARP spokesman Geraldo Cardenas stated that “We are bringing awareness to the state and city officials that streets need to be safer for everyone as part of our efforts to create the best livable communities for seniors.”

CDOT Officials on Board

The Chicago Department of Transportation (CDOT) agrees with the aspirational goals of ATA of installing and additional 100 miles of bike lane core doors by the year 2020. However, the Department of Transportation appears focused on constructing the next 50 miles now while waiting for additional funding. This because the cost of building a buffered bicycle lane is roughly $125,000 for every mile. Alternatively, barrier protected bicycle lanes have an approximate price tag of $200,000 for every mile.

Many of the city’s leaders recognize that the Streets for Cycling Plan 2020 will require time to complete. The vast network of bike routes when completed will consist of 645 miles of bicycle paths that include 275 miles of crosstown bicycle routes, 310 miles of greenways throughout neighborhoods and more than 60 miles of spoke routes that take bicycling commuters from Chicago’s inner loop out to the city limits.

Guard Wins Comp CaseIn October 2015, Illinois Department of Corrections prison guard Lance Fracher collected an additional $48,000 as a part of his claim settlement involving injuries associated with his job. The prison guard claimed that his hand and wrist were injured by turning locks as a part of his job at Menard Correctional Center. Today, Fracher has filed five claims yielding more than $183,000 in cash payouts along with his salary that provides him $66,000 annually in his new job as a southern Illinois Vienna Correctional Center guard. This amount did not include payments for his medical expenses associated with a recent surgery to repair Fracher’s shoulder injury.

The prison guard was a target of an Illinois fraud investigation when it was found that he participated in a local fishing tournament while collecting tax-free disability for his injuries. The investigation was launched by then IDOC Director Salvador Godinez once photographs had surfaced showing Fracher fishing on a boat. At that time, Godinez said he had “absolutely zero tolerance for employee misconduct of any type.”

At the time of the investigation, the prison guard was not working but receiving temporary total disability in an amount to cover his full salary as regulated by law to provide injured employees “extended benefits.” These payments allow correction officers injured by inmates to recover from their injuries without a loss in pay.

ER Visit Showed No Sign of Injury

Lance was off from work for nearly one year on full pay making a claim that he was unable to work after a fight incident occurred in October 2015 between inmates. A group of guards including Fracher attempted to intervene, landing the prison guard in the emergency room. However, attending physicians could find no injuries during an ER exam as stated in the physician’s report.

The $48,000 tax-free settlement was completed in September 2015 that paid a claim for injuries received during the fight. This amount included the 15 percent lawyer fee paid to his Swansea attorney Tom Rich. This was the fifth workers’ compensation payout since the injuries occurred. However, Fracher had lost two previous claims filed for coverage for repetitive trauma injuries where physicians gave testimony supporting the claim of injuries. However, the hearing officer denied the petitioner additional benefits indicating that the information Fracher provided to his medical experts and a witness was inaccurate.

During the hearing, the prison guard testified that job duties required him to turn keys to doors and apply leg restraints, waist chains and handcuffs in addition to operating buttons, cells, doors and writing. The petitioner complained of numbness in his hands, wrist and elbow that tends to come and go.

Expert Testimony Supports Aggravated Injuries

The testimony provided by doctors on Fracher’s behalf indicated that his injuries were either aggravated or caused by his work-related duties, which makes them compensable under Illinois law. The hearing included testimony by the petitioner that even though he continues to fish after his recent shoulder surgery, he finds that he “has to change hands a lot.” This is in response to photographs that were submitted showing the prison guard hunting and fishing. The petitioner testified that he has a loss of strength that forces him to use a different type of bow.

Even with Fracher’s reported weaknesses, the arbitrator sided with the Illinois Attorney General finding that the petitioner was not entitled to receive benefits for repetitive trauma caused by his job duties. The arbitrator said that Fracher had switched job duties at the prison so many times and performed almost every task available at the facility that he did not re maintain any duty long enough to suffer injuries caused by a repetitive trauma.

As of 2010, Menard Correctional Center guards have received more than $20 million in workers’ compensation benefits. Many of them have claimed they sustained elbow and wrist injuries caused by operating locking mechanisms and turning keys at the facility. Some arbitrators handling hearings for worker’s compensation benefits are increasingly questioning whether they receive accurate information that the job duties of turning locks at prisons and correctional centers directly cause repetitive trauma injuries.

Even though hearing officers have denied two previous claims by Fracher for benefits to cover repetitive trauma, the petitioner has made an appeal to the Worker’s Compensation Commission.

Dirty medical Tools and InfectionFilthy surgical tools can easily lead to an outbreak of infections that appear many days, weeks or months after undergoing invasive medical procedures and surgeries. Using unsanitary surgical instruments as a part of a surgical procedure often causes cross-contamination of serious life-threatening diseases. This is often a significant problem for patients with compromised immune systems who are susceptible to deadly infections and sepsis.

Many patients of filed civil action against hospitals, surgeons and other health care professionals who use unclean medical tools. The recent outbreak of carbapenem-resistant Enterobacteriaceae (CRE) infections at hospitals in the US appear to be caused by unsanitary endoscopes. The bacterium is highly resistant to every form of available antibiotics.

Endoscopes are considered complex medical tools that are extremely challenging to disinfect and clean. However, the growing cases of cross contamination outbreaks caused by filthy medical equipment raises serious questions about keeping hospitals clean to minimize the risk to patients. Contaminated lab equipment and medical tools used as part of the manufacturing process of prescription medications also seem to be responsible for the spread of serious infections including meningitis and hepatitis.

Patients Dying from Endoscopic Procedures

In February 2015, North Carolina health officials announced that three former Carolina Healthcare System Hospital patients suffered serious infections from the highly resistant bacteria CRE that claimed two of their lives. In the same month, two patients at California’s UCLA Medical Center died after being infected and more than 170 others were likely exposed to the life-threatening bacteria following routine procedures requiring the use of endoscopes.

The serious problem with unsanitary medical instruments is not unique to North Carolina or California. The pattern of deadly illnesses first emerged in hospitals back in 2012 in major cities including Pittsburgh, Seattle and Chicago. CRE, the culprit in every case, was transmitted through specialized endoscopes and duodenoscopes used in various procedures treating digestive disorders, cancers and gallstones. The equipment accumulates bacteria that is often difficult to remove using conventional cleaning methods, allowing the infection to pass between patients.

FDA Slow to Respond

Until now, the FDA (Food and Drug Administration) who approves the scope uses, nor the manufacturers, offered any guidance on resolving the problem nor publicized their concerns. Many health care professionals who use the scopes and many of the patients treated for specific conditions requiring the use of endoscopes are unaware of the inherent risks of infection.

Though life-threatening, the infection can go unnoticed in many cases. Many of the deaths caused by CRE outbreaks are not attributed solely to the life-threatening bacteria. This is because many of these patients already suffered from other serious health issues. While any outbreak of CRA is likely to garner attention, more common bacteria usually does not send up a red flag because it can easily be treated with prescription antibiotics.

In early 2015, the FDA made a public announcement that they were “aware of and closely monitoring” the risks of infections directly associated with the use of endoscopes. However, the agency added “Some parts of the scopes may be extremely difficult to access and thoroughly cleaning a duodenoscope may not be possible.”

Filthy Scopes Equals Dead Patients

Many of the patients who lost their lives by CRE had undergone procedures using duodenoscopes including ERCP (endoscopic retrograde cholangiopancreatography). The medical tool in these procedures is used to inject contrast dye into pancreatic and bile ducts to reveal tumors, gallstones, blockages and other conditions through x-rays.

The duodenoscope is threaded down the throat of a patient to provide the doctor control of tiny devices designed to extend from the end of the scope. However, the scope is also used for other procedures including obtaining biopsies, removing stones or installing stents to open blocked ducts.

Being Proactive

Minimally invasive surgeries have grown exponentially since the 1990s. Many of the instruments used in numerous surgical procedures have become significantly smaller and more complex with complicated moving parts, narrow channels and tiny holes that can provide a place of harbor for serious life-threatening bacteria.

Fortunately, numerous hospitals that have experienced CRE breakouts associated with endoscopes are not waiting for guidance from scope manufacturers and the FDA on how to proceed. These hospitals have developed more effective safety procedures and advanced cleaning protocols including quarantining the scope after cleaning and testing the device for residual bacteria before reuse.

End of Nursing Home Arbitration AgreementsEfforts by Attorneys General from 15 states including Illinois and the District of Columbia urging the Centers for Medicare and Medicaid Services (CMS) to prohibit binding arbitrary agreement clauses affecting long-term care contracts appear to be successful. Illinois Attorney General Lisa Madigan told CMS said that stronger consumer protections are necessary to maintain family rights and provide bargaining power over long-term care facility contracts.

Through collective submissions, the Attorneys General from different states made claims that when individuals become residents of long-term care facilities and nursing homes, family members are required to make significant health care decisions for their loved one during stressful circumstances. As a result, many family members are unable to anticipate any future problems or have the ability to make an accurate informed decision to resolve any future dispute.

Currently, CMS includes provisions in nursing home contracts that require binding arbitration to handle disputes. Atty. Gen. Madigan believes family members are taken advantage of when having to agree to the provision and might not even understand exactly what is being asked before giving up their rights to have any dispute heard in court, even if their loved one has been neglected or abused at the facility.

Families Unaware of Contractual Restrictions

Many families and nursing home residents only become aware that they have agreed to binding arbitration through the nursing home contract once the tragic event or dispute occurs. The binding arbitration clause in the contract usually requires every claim against the facility to be resolved through private arbitration by a mediator chosen by the nursing home. The clause typically prohibits residents and family members from filing a lawsuit against the facility, even if the claim involves neglect or abuse.

Requiring family members and residents to sign the binding arbitrary clause as a part of admission to the facility places family members at a disadvantage. This is because the families are unable to evaluate and decide the best avenues to resolve specific disputes that occur. The Attorneys General who called on CMS to make changes believe that binding arbitration agreements agreed to before any dispute are often procedurally unfair to residents and family members, and jeopardize the fundamental right in the United States to be heard and seek judicial compensation when filing a lawsuit or claim.

Denying Nursing Home Residents Their Rights

The Attorneys General claim that this denial of rights can be especially daunting on families who are given the task of making difficult decisions dealing with their loved one’s long-term care. In many incidences, the consumer either does not readily understand the contractual provision or is not given the opportunity to sign a contract without the provision enforced.

The participating Attorneys General are in line with the determination made by the American Arbitration Association in 2003 that they would avoid administering health care arbitrations between service providers and patients as it relates to medical services unless every party agreed to participate in arbitration to settle a dispute.

Negative Consequences to Consumers

There are other serious negative consequences to the consumer who agrees to binding arbitration agreements in contracts for admission to nursing homes and long-term care facilities. Some of these include reduced accountability of the health care provider and limited monetary awards should the arbitrator side in the favor of the consumer, even in cases involving neglect, mistreatment or abuse. In addition, the binding arbitrary agreements diminish incentives for long-term care facilities and nursing homes to eliminate harmful and unlawful practices.

A study conducted by the Consumer Financial Protection Bureau found that many residents and families were unaware that the arbitration agreement clauses existed in contracts for admission into nursing facilities. These individuals were largely uninformed that the clause restricted their capacity to file a lawsuit seeking redress in court.

In addition to Attorneys General in Illinois and the District of Columbia, the other states that submitted comments included California, Delaware, Connecticut, Iowa, Hawaii, Massachusetts, Maine, Minnesota, Maryland, Oregon, New York, Vermont, Rhode Island and Washington.

Workers Compensation Determined by Workers CompensationIn May 2015, the Illinois appellate court ruled that a trucker who lost his leg through amputation after sustaining injuries in an accident was not an independent contractor but instead, an employee who is entitled to receive workers’ compensation benefits. Court records show that trucker Radomir Cvetkovski hauled metal products and machinery for his employer, Steel & Machinery Transportation Inc. The truck driver had been employed by the company, based in Hammond Indiana, since March 2005.

In June of that year, Cvetkovski was dispatched by the company to haul a load from Indiana to Wisconsin. Because he picked the load up on a Friday, he drove his truck to spend the weekend at home making plans to deliver the shipment the following Monday. On that day, the trucker was involved in a motor vehicle crash resulting in the loss of his left leg through amputation below the knee. The following October, Cvetkovski filed a claim with the Illinois Workers’ Compensation Commission in an effort to obtain benefits to cover his injuries, damages and losses.

Terms of the Hiring Agreement

However, the agreement he made with Steel & Machinery noted that the trucker was classified not as an employee but an independent contractor. Under the terms of his agreement, the trucker was to transport goods using his own tractor-trailer with the responsibility to cover all costs of fuel, permits and other transportation expenses.

As a part of his agreement for hire, the truck driver underwent medical exams and drug testing. He transported shipments exclusively for Steel & Machinery from the date of his hire until the accident occurred. Cvetkovski testified that the company did not require him to wear uniform, but he received weekly company paychecks. He testified he did not have the ability to select loads to transport and believed he did not have the right to refuse delivery of any cargo.

No Control over the Trucker

The director of safety at the company provided testimony at the hearing indicating that Steel & Machinery “exercised no control over the type of fuel claimant purchased or where he parked” and that the company did not provide any equipment or tools to Cvetkovski. The director of safety provided additional testimony claiming that “each driver is responsible for attaining his or her own bobtail insurance and workers’ compensation coverage.”

The arbitrator working on behalf of the state Workers’ Compensation Commission awarded benefits to Cvetkovski after determining that the records showed “some evidence indicative of an independent contractor status,” but that the truck driver was still working as an employee at the time of the accident.

Trucking Company Appeals the Decision

Steel & Machinery has appealed the decision arguing that the arbitrator’s decision is “against the manifest weight of evidence.” However, through a 4-1 decision the Illinois first district appellate court sided with the commission. In a released statement, the appellate court stated that “a conclusion opposite to that of the commission is not clearly apparent.”

As a part of the ruling, the appellate court indicated that while the trucker owned his own semi tractor-trailer used to transport shipments for the company, the control over the equipment clearly belonged to Steel & Machinery, which is “indicative of an employment relationship.” The appellate court also concluded that other evidence of an employment relationship between Cvetkovski and the company included completing a hiring application and undergoing medical exams and drug testing.