Cornered: Richard Johnson on Workers' Compensation

The first chapter of the IICLE handbook, Workers' Compensation Practice, explores the history of the program's legislation and caselaw, which is extensive because of its 100-year history in the United States. Richard Johnson, of Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca, authors the chapter on disability evaluations in the 2026 Edition of the handbook and speaks in this month's episode about both the history and the modern-day practice challenges in this area of law.

IICLE® is a 501(c)(3) not-for-profit based in Springfield, Illinois. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of law with the generous contributions of time and expertise from volunteer attorneys, judges, and other legal professionals.

Transcript

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You're an attorney?
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I have a friend who...
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I've been meaning to update my will, but I just bought a new house.
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I want to start a business.
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My brother was fired.
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Hey, my friend got divorced a while back.
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I just don't understand how her ex...
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You've been there.
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At a social function, meeting friends of friends.
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Word gets out that you're an attorney and suddenly your night is filled with partygoers asking you quote-unquote simple legal questions.
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The questions are seldom in your area.
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Some of the stuff you haven't thought about since law school.
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You're being cornered out of court.
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In the Cornered Out of Court podcast from IICLE, you'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered.
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The first chapter of the IICLE handbook, Workers' Compensation Practice, explores the history of workers' compensation legislation and case law, which is extensive because of the program's 100-year history in the United States.
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The guest for this month's episode, Richard Johnson of Katz Friedman, knows both the history and the modern-day practice challenges in this area of law.
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My name is Richard Johnson.
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I am a shareholder at Katz Friedman.
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We are a workers' compensation and labor law firm.
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We've been in business since 1954, and I concentrate my practice in work-related injuries representing only injured workers.
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What are the five factors for determining workers' compensation benefits?
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The five factors are critical elements
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to determining how much a case might be worth.
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So the factors are, number one, an AMA, that's an American Medical Association Guide to Impairment Rating.
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And we use the sixth edition.
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This edition is required to be the most updated edition.
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And now this edition can only be found online by the physicians who use it.
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So it's not easily accessible by a layperson, even a lawyer, unless you subscribe to the AMA service.
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An AMA impairment rating is only done after the individual worker reaches what's called maximum medical improvement.
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So we cannot use an AMA rating until
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this maximum medical improvement is achieved.
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One of the downsides of the AMA impairment rating, among others, is that if you have an injured worker with multiple body parts, the AMA guide only selects the most disabling or most impaired body part for this analysis.
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So that's the first.
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The second factor is age.
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So why might age be important?
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Well, age is important because the concept of workers' compensation is a loss of future income as a consequence of a work injury.
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So it's a difficult concept or idea to get your head around, but here, just stating that fact, you can see that a younger individual
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may be given more weight in terms of permanent partial disability than an older individual because the younger individual has a longer work life expectancy.
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So that's a critical issue.
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It doesn't make as much difference as it should, perhaps, but it is a factor.
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The third factor that's involved is occupation.
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Well, why is occupation important?
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I'll give you a very simple example.
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If I'm a lawyer with a hand injury and it's to my non-dominant hand, I can perform all of my work without any real difficulty.
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However, if I am a carpenter, even an injury to the non-dominant hand makes that job more difficult.
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So in weighing that factor, the Workers' Compensation Commission will look at
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you know, how does the individual use the extremity or the body part that's been injured in their occupation?
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And if they have to use that a lot, again, that's going to weigh more heavily in their favor for a higher award.
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And if you think about it, this really dovetails with this loss of future earning capacity.
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It's more difficult for the individual to, you know, work.
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Maybe they have to take a day off because they've got pain in their hand or whatever.
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So,
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Age is our second, or occupation is our third factor.
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The fourth factor is a demonstrated loss of income.
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Now, I can tell you that this factor is almost never proven in the context of a permanent partial impairment.
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Because if there is a demonstrable loss of income,
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You might shift your analysis to a wage loss theory of recovery, or you could shift your analysis to a person as a whole recovery, but you would need vocational testimony to show how the income is going to be impacted.
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It's relatively simple if we can show that the individual is, for instance, sustains a mental trauma and has
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trouble sleeping at night due to depression.
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That person can no longer work the third shift.
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Typically in factories, third shifts have premiums attached to their hourly rates.
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So now the person can do all the work that they used to do, but now they go back to the first shift, they lose that shift premium because they can't sleep during the day anymore.
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So that would be an example of that.
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It's kind of rare, but again, it is a factor.
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The final factor is actually evidence of disability in the medical records.
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And the commission really, really looks hard at this, that final factor.
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It's the most important element, in my opinion.
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The Workers' Compensation Commission has a very high level of expertise in medical questions, and they're very well versed in the anatomy of the human body.
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And so they're going to focus on
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this element, this factor more than the others.
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I'll give you an example here.
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Let's say a client comes to you and he is working and injures his shoulder and he has a distal clavicle resection.
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And then he says to you, but my coworker, she had a shoulder injury and she got X amount of money.
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and you may determine that that individual actually had a rotator cuff tear.
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So even though they have the same surgery, so to speak, to the shoulder, these are very, very different anatomical changes
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as a consequence of these surgeries.
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So that would make the evidence of disability in the medical records very, very important.
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These five factors are not really the only ways that the commission determines permanent partial disability.
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There is a schedule of injuries.
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Every body part in the state
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legislature has been identified as having a certain value, a certain number of weeks.
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So for instance, a hand, if it were amputated, would be entitled to 205 weeks of compensation.
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So if you lost that hand, that's what you would get.
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How does a worker's average weekly wage factor into benefits?
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If we have two people who come into the office,
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and one person has an average weekly wage of $800, and another person has an average weekly wage of $1,600, and they both have an amputation of their index finger, and they're otherwise earning their same wages, the person who makes $1,600 a week is actually going to get twice the recovery of the person earning $800 a week.
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Now, we may think that that's inherently unfair, but again, it goes back to the roots of workers' compensation and this concept that we are dealing with a loss of future income.
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And the state legislature, 1911, we created this statute here.
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This was not a novel idea.
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We often say that this social safety net came in through Germany.
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And that's true in part, but workers' compensation goes all the way back to the golden age of piracy.
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In the late 1650s and early 1700s, the pirates had a code and there were body parts specified so that if a sailor lost a hand, he'd get a certain number of shillings.
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If the sailor were disabled and couldn't fight anymore, then that
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sailor would be put on a job on the ship that didn't require fighting.
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It was a way to encourage them to join, of course, and stay with them.
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And it was a way that the whole group of pirates thought that they could work with each other, build solidarity, and build a way for them to compensate people who had gotten hurt.
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while they were doing their job.
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I just think it's a very interesting concept, and it goes back a long time, so it's nothing new.
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What does the no-fault system of compensation mean for injured workers?
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We often will hear our clients come to us with complaints of a lot of pain and a lot of suffering, a lot of emotional distress as a consequence of the accident.
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And these are very real, absolutely.
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Unfortunately, they're not compensable.
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They're not one of the five factors.
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They may help highlight some of the disability elements, but they certainly in and of themselves don't require the commission to award compensation.
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So it's very, very different from a personal injury case.
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What we want to make sure our clients understand, of course, is that workers' comp is a no-fault system of benefits, and that in exchange for this concept of no-fault and being awarded the specific body part percentages that you may be entitled to receive, you, in reality, are giving up unlimited compensation.
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You give up the right to a jury trial.
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So we don't have to prove fault, but you give up the right to a jury trial.
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So I think that those concepts are difficult for our clients to understand, but they're important for the lawyer, especially the casual practitioner, to understand what's going on and how this all fits into evaluating disability under the five factors.
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What are some of the challenges for lawyers handling workers' compensation matters?
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Each and every case is very, very fact dependent.
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You can see that from the five factors and with the average weekly wage issue.
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They're also subject to the creativity of the lawyer.
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You know, if you just look at the rigid five factors, if you just look at the scheduled body parts,
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you can go down a rabbit hole that may not lead to the very best compensation for your injured worker.
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For instance, if you represent a ballet dancer who joined the ballet here in Chicago from Russia, he speaks only ballet.
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He only speaks Russian, and he only knows ballet.
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He's got no education.
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and he falls off the stage and fractures his leg, the first thing you might do is you might look at that section of the statute that tells you how much a leg is worth, and then try to determine the percentage of disability.
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But this is a situation that may require the employer to do vocational rehabilitation for the ballet dancer, to pay that worker
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while he is not able to perform ballet, get him to a point where he can work somewhere.
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He's got a work fees, after all, in the United States.
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And if he can't, then he could conceivably be permanently and totally disabled.
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This example has its roots in a real case.
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So this creativity of the lawyer is really important in workers' compensation.
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Thank you, Richard.
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Richard Johnson of Katz Friedman is the author of the chapter on disability evaluations in the 2026 edition of the IICLE Handbook, WORKERS' COMPENSATION PRACTICE.
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Thank you for joining us for another edition of Cornered Out of Court, brought to you by the Illinois Institute for Continuing Legal Education.