• The Nuts and Bolts of Illinois Worker's Compensation
  • December 23, 2009 | Author: Theodore J. Harvatin
  • Law Firm: Harvatin Law Offices, P.C. - Springfield Office
  • I.            Background.

     

                A.            History of Worker’s Compensation Laws.

     

    In the early years of the Industrial Revolution in this country, most employers viewed their workers as just another tool, piece of equipment or raw material, to be disposed of when no longer useful.  I can recall my grandfather, a coal miner, talking about the neighbor woman whose husband died in a mining accident.  The mine’s obligation ended with delivering the body to the morgue.

     
    The law made it nearly impossible for an injured employee or his surviving family to recover compensation for their losses.  The employer was usually able to avoid liability by showing that the employee was either aware the job was dangerous and therefore assumed the risk, or the employee’s own negligence caused the injuries or the negligence of a co-worker caused the injuries.

     

    In the early 19th Century, this began to change as various states enacted laws to protect workers.  In Illinois this set of laws is known as the Workers’ Compensation Act (“Act”) and the Occupational Diseases Act. 

     

    There is a special state agency whose duty is to administer the Act.  Until 2005, that agency was known as the Illinois Industrial Commission.  It is now called the Illinois Workers’ Compensation Commission.

     

                B.            Basics of the Illinois Workers’ Compensation Act.

               

    The Act involves a trade off.  The company is still responsible for benefits under the Act even if the employee or a co-worker causes the injuries to the worker and even if the employee knowingly accepts a dangerous job or takes risks.  Therefore, as long as the injury occurs while the employee is performing the employer’s duties, the employee is automatically covered under the Act.

     

    In exchange for automatic liability, the employee gives up certain things.  The employee’s recovery in dollar amounts is limited in ways that it would not be if the employee were suing in a court of law (such as occurs when there is a car accident).  These limitations apply even if the employer was negligent, did not follow safety rules, knew that there was a dangerous condition or situation but did nothing about it or otherwise failed to take precautions. 

     

    The employee does not recover for pain and suffering, lifestyle disruptions, inconvenience or aggravation.  He does not receive 100% compensation for lost income (although the benefits are tax free).  The employer is not responsible for making up for the employee’s lost fringe benefits (contributions to pension funds or credit hours to qualify for health insurance for example).

    The employer is responsible for all of the employee’s reasonable and necessary medical expenses.  In addition, in certain circumstances, the employer is responsible for the employee’s future medical expenses.

     

    II.         How the Process Works.                

     
    A.          When you are injured:

     
        1.            Report the injury immediately

     

    When you are injured, you should immediately inform a responsible employee of the company about your injury. It is not enough that you mentioned it to a co-worker or a co-worker saw it happen. 

     
    Make sure you have informed your supervisor or someone else in management of your injury. You should also insist upon filing a written report of injury and request a copy of the report.

     
         2.             Seek immediate medical care

     

    Do not try to be a “hero”.  Go to the doctor immediately.  One of the most common ways that an employer or its insurance company defeats a claim is to argue that you must not have been hurt that badly or you would have sought immediate medical attention. 

     

         3.             Choose a doctor of your own.

     

    In Illinois, you have the right to choose your own doctor.  You should take advantage of that right.  Although at some point in the process the employer may ask its own doctor to examine you, you do not have to use its doctor for your ongoing treatment and care. 

     

        4.             Bill Workers’ Compensation insurance.

     

            a) Special coverage for work injuries.

     

    Your employer carries Workers’ Compensation insurance and must pay all your medical bills that arise from a work-related injury.  This coverage is completely separate from the medical or health insurance coverage that you or your spouse may have through work.  

     

            b) Better coverage than regular medical insurance.

     

    Health insurance plans are usually subject to deductibles and co-payments.   The health insurance coverage usually restricts you to certain doctors, hospitals and medications. 

    Workers’ Compensation coverage does not have deductibles or co-payments.  There are no restrictions on which doctors, hospitals or medications you may use.  Workers’ Compensation should be your first choice for an on-the-job injury; health insurance is your back-up plan.

     

    Make it clear not only to your doctor but also to his staff, including his billing staff, that this is a work-related injury and a Workers’ Compensation claim.  Do not ask the physician’s office to bill your health insurance or your spouse’s health insurance. 

     

        5.             Thoroughly explain to your doctor the accident and your injuries.

     

    Once you have clarified with your physician that this is a Workers’ Compensation injury/claim, carefully explain to the doctor what happened so there is a record of it from the very beginning.  It is also important for you to describe all of your injuries to the doctor, from the most serious to the most minor. 

     

        6.             Tell the doctor what hurts each time you see him.

     

    Each time you visit the doctor, you must inform him about everything that is ailing you. This is true even if the main reason for a particular visit has nothing to do with your injury. 

     

    For example, if during the course of recovering from your injury, you see the doctor because of a sore throat, also mention the problems you continue to experience from the injury.  Otherwise, the employer may claim that your failure to voice any complaints to your doctor about your injury is proof that you are no longer suffering the effects from that injury.

     

        7.             Follow your doctor’s orders.

     

    It is important for you to follow all of your doctor’s instructions exactly as the doctor gives them to you.  That includes taking all medications, attending all physical therapy, observing any physical limitations the doctor imposes on you, and completing follow up care with your doctor and any other doctors to which the doctor refers you. 

     

        8.             Be sure your doctors understand your job.

     

    Describe in detail to each one of your doctors all the physical tasks you undertake while performing your job.  Do not assume that your doctor, even though highly educated and intelligent, understands the exact nature of your job. 

     

        9.             Get restrictions in writing.

     

    If your physician places restrictions upon your return to work, or instructs you not to return to work, ask him to make a written notation of that in your file.  This creates a record in the event of questions in the future.

     

    B.            Temporary Disability Benefits (“Comp”)

     

        1.             Amount of comp.

     

    While you are off work and recovering from your injuries, the employer must continue to pay a portion of your lost wages.  In general, the employer must pay you two-thirds (2/3) of your gross weekly wages (your pay before taking out taxes) for the fifty-two (52) weeks before the date of the injury.  These benefits are known as Temporary Total Disability (“TTD”) or what many workers refer to as “comp”. 

     

    There is also a type of benefit known as Temporary Partial Disability.  At some point, your doctor may release you for limited duty work.  If this limited duty work pays less than what your regular duty work was paying, your employer must make up the difference.

     

    The employer withholds no taxes from these benefit checks.  Therefore, the amount you receive may be similar to your regular paychecks, even though they represent just 2/3 of your gross wages.

               

        2.   When payments should begin.

     

    You are not entitled to comp until you have been off work for more than three days.  The employer then must pay you for days four through fourteen and on the fifteenth day, it must make up the first three days that you missed. 

     

        3.   How often you should receive payments

     

    The checks you receive should come at the same intervals as your normal paychecks did. 

     

    C.            Permanent Partial Disability (“PPD”).

     
        1.                  The final settlement.

     

    We have already discussed your entitlement to medical benefits and to disability benefits during the period of your recovery (“comp”).  Once you heal and return to work, you may be entitled to Permanent Partial Disability benefits to compensate for your injuries. 

     
        2.      What is my injury case worth?

     

              a) Every case is different.

    No two injuries and no two cases are the same.   So even if your employer voluntarily pays all of your medical benefits and TTD, it is in your best interest to retain my services when it comes time to negotiate a PPD settlement.

     

    b) The following factors help determine the value of a disability settlement:

     

    1)            Your average weekly wage.  The more you earn, the larger you can expect a settlement to be.

               

    2)            The body part injured.  Back, neck and spine injuries generally settle based upon a percent of a “Man as a Whole”.  Injuries to the shoulder(s) and/or elbow(s) are arm cases.  Wrist(s) and hand(s) are loss of hand(s); hip(s) and knee(s) are loss of the leg; ankle(s), feet and toe(s) are ordinarily scheduled as foot losses. 

     

    3)            There are also schedules for other specific body parts, and for hearing loss, vision loss and disfigurement (scars).  At times there can be recovery for a body part and a scar, but at other times you must choose one or the other.

     

    4)            The medical records.  The percentage loss of a body part you are entitled to recover is impossible to determine without knowing the exact nature of your injuries.  That knowledge requires a thorough review of your medical records. 

     

    5)            Your age, the type of work you perform, whether you had problems with the body part before the accident; whether you had surgery due to the injuries, the length of your recovery time and various other factors.

     

        3.             Not all lawyers are the same.

     

    Only an attorney with my experience is qualified to make a proper assessment of your Workers’ Compensation case.  I have access not only to my experience but also to various sources of information, including Q-DEX, the “Bible” of Comp lawyers.

     

    D.            Wage Loss Differential. 

     

                If you are a high wage earner, a settlement based upon a percentage loss of use of a body part may not adequately compensate you.  In such cases, the Act allows for what is known as a wage differential award. 

     

                Suppose you are a plumber who was earning $26.00 an hour before you suffered a work-related injury to your knee.  Because of the injury, you are no longer able to kneel or squat in the manner required of a plumber’s job. 

     

                You are now only able to earn $9.00 an hour repairing small engines.  A typical Workers’ Compensation settlement based on a percentage loss of use of the leg may not be enough to make up for a lifetime of future lost earnings, especially if you are younger.

     

                This would be an appropriate case for a wage differential award.  The employer would compensate you for the remainder of your working life for the difference between what you could have earned as a plumber and what you are now able to earn as a small engine repairman. 

     

                Although the employer would be required to pay that difference for the rest of your working life by writing you a weekly check, the employer and the employee often agree to a single large payment to settle out the case.  This is known as a “lump-sum settlement.”

     

    E.            Permanent and Total Disability.

     

                Sometimes an employee suffers an injury that is so significant that he is medically unable to work for the rest of his life.  In those cases, the employee may be entitled to lifetime paychecks, or compensation referred to as Permanent and Total Disability. 

     

                The worker and the employer may reach an agreement under which the employer pays a lump-sum settlement.  In other words, the case settles by the employer making one large payment instead of many small ones over the employee’s lifetime. 

     

    F.            Death Benefits.

     

                In the event of the death of an employee from a job-related accident, the employer is required to pay the greater of twenty-five (25) years of compensation or $500,000.  The employer owes this benefit only if the employee left a spouse or other individuals who were dependent upon the employee for their support.  The employer is also liable to pay burial expenses, not to exceed $8,000.00.

     

    III.            Procedures.

     

                A.            Settlement.

     

                The employer and the employee settle the vast majority of Workers’ Compensation cases.  The settling employee frequently gives up the right to claim medical benefits from the employer for any new medical bills that arise in the future as a result of the injuries.   The Illinois Workers’ Compensation Commission must approve all settlements in order for them to be binding upon the parties.

     

                B.            Hearing.          

     

                1.             Arbitration

     

    Absent a settlement, the parties must present the case to an Arbitrator (a special type of judge, appointed by the Illinois Workers’ Compensation Commission).  The Arbitrator hears evidence from the worker and any of the worker’s witnesses and from the employer and any witnesses of the employer.  The Arbitrator also receives and evaluates medical information. 

     

                2.             Appeals to the Workers’ Compensation Commission

     

    The Arbitrator, some weeks later, issues a written decision.  Each side has the right to appeal the decision to a three-person panel of the Illinois Workers’ Compensation Commission.  The Commissioners do not hear any additional evidence.  They review the case based upon the evidence that the parties presented to the Arbitrator.

     

                3.             Appeals to Circuit Court and the Appellate Court

     

    Appeals to the Workers’ Compensation Commission can take a year or longer.  Either side may appeal the Workers’ Compensation Commission’s decision to the Circuit Court and after that to a special Workers’ Compensation Appellate Court.  The parties present no new evidence to the Circuit Court or the Appellate Court. 

     

    The Court can take years to make a decision.  That is why both sides attempt to settle cases whenever possible.

     

    IV.       Special Procedures.

     

                A.            Refusal to Pay Compensation.

     

                Sometimes an employer, or more often its insurance company, refuses to pay comp benefits.  In those cases, the employee may find it necessary to file a special petition with the Commission.  If the Commission decides that the employer’s refusal to pay benefits was without cause, the Commission can assess penalties and fees against the employer.  The same type of procedure is also available if the employer refuses to pay medical bills.

     

                B.            Increased Disability.

     

                If a case proceeds to hearing to determine how much a Workers’ Compensation award will be and if the Commission awards the worker any amount of disability, the worker has five years to ask for additional compensation should the worker’s disability increase.  This is a right that the employer often requires the employee to give up in the event a case settles without a hearing.