Workers Compensation

What is Workers Compensation?

The people of the State of Illinois decided many years ago that injured workers were deserving of compensation and payment of benefits when they are injured on the job. This law is administered by a state agency known as the Workers Compensation Commission.

This is a “no fault” law, meaning that negligence on the part of the employer, or the injured employee, is not relevant. All that is required is that the injury occurred as a result of employment activities. Also, even if an employee makes a mistake and causes his own injuries, he is still entitled to receive benefits.

The employee does not “sue” the employer or accuse anyone of wrongdoing or bad conduct. The form to begin a claim is titled Application for Adjustment of Claim and contains information such as date of accident, name and address, etc.

Does the law only apply to “accidents”?

A one time, traumatic accident occurring on a specific date is not required. In fact, many work related injuries and illnesses are the result of repetitious activities that gradually arise over the course of time. It may be a condition such as carpal tunnel that results from repetitive use of the hands and arms in a factory setting. Another example might be exposure to fumes or chemicals that causes an employee to become ill over time.

Who is eligible for Workers Compensation benefits?

Virtually every person working in the State of Illinois is eligible for benefits under the Workers Compensation Act. This includes people working for private companies, government employees and even owners of small businesses. About the only persons not covered by the law are federal employees who are subject to a federal workers compensation system. There are a few other examples of employees not covered, however the safe assumption is that the law does apply if you are injured.

What benefits am I entitled to if I get hurt at work?

The benefits you are entitled to generally fall into three categories:

1. Payment of reasonable and necessary medical care with a doctor of your choosing
2. Payment of a weekly disability check if you temporarily cannot work while you recover
3. Payment of a settlement or award for any permanent injury you suffer, even if you make a successful return to work, or do not miss any work at all.

Can I be fired or laid off if I file a Workers Compensation case or request payment of the benefits I am entitled to?

No. It is against the law for an employer, an insurance company, or their representatives to harass, discriminate or threaten you simply because you request the rights you are entitled to. If an employer violates the law in this way they are subject to a possible retaliatory discharge suit in circuit court where they might be at risk for payment of lost wages and punitive damages. Employers have no insurance for this type of lawsuit and thus the issue rarely arises.

Who administers the Workers Compensation Act? Are cases filed at the local courthouse?

The Workers Compensation Act is administered by a state agency known as the State of Illinois Workers Compensation Commission. This Commission in turn has several arbitrators that travel throughout the state to the county where the injury occurred. There is no formal courthouse appearance as seen on television and the process is known as an administrative proceeding.

Who pays?

The State of Illinois and the Workers Compensation Commission does not pay your benefits to you. All employers are required to have insurance to pay on their behalf or they must show that they are financially able to pay the claims directly. Many insurance companies use what is called a TPA, or third party a
dministrator to handle claims for them.

Employees are not required to pay for any part of the Workers Compensation insurance premium. It is the responsibility of the employer. Also, there is no probation or waiting period and coverage applies your first day on the job.

It is possible for an employee to conduct his own investigation and to find the insurance company. However, many people find it much easier to have their attorney do this for them. The typical insurance company is very large and compelling an insurance adjuster to speak to you by telephone can be a time consuming challenge.

When an Accident Occurs

Using common sense is the best advice when you are injured. After taking appropriate steps to insure your own health and safety and that of coworkers, you should take note of certain facts. This would include noting what conditions caused your injury, witnesses present, date, time and place, as well as the symptoms you are experiencing. Since we tend to forget details, committing the information to paper as soon as possible is prudent. As the days pass, many people find it helpful to note details on a calendar each day.

Notice to the Employer

The law requires that an injured employee provide “notice” to the employer within forty-five (45) days of the accident. However, you must provide notice as soon as possible and you should not wait the entire 45 days. Informing the employer of a work accident as soon as possible is the most prudent course of action. Every day that passes it becomes more difficult to prove that your medical condition was caused by the work accident. For example, if you injure your back at work doing heavy lifting and then wait two weeks to provide notice, questions will be asked about what you lifted at home or away from the work place over the intervening two weeks. You may win the argument over the “notice” requirement but lose your case over the “causal relationship” issue. Always report an accident as soon as possible.

You must report your accident to a management person, not just to a fellow employee. Notice does not have to be in writing, although if it is you should request a copy of the accident report for your records. You should also verify that all information on the form is correct, especially if you are asked to sign it. Notice is just that, simply notice that something occurred. You do not have to provide a detailed medical statement or even confirm what the injury is. In many cases you will not know. However, the general rule is that the more detailed the notice, the better.

In summary, it is wise to provide the following:

• Employee’s name, address, telephone number, date of birth and social security number
• Date, time and place of the injury
• A short statement of the accident and what caused it
• A short statement of the work activities that caused the injury if it is a repetitive injury
• A description of the injury or at least the area of the body where you notice symptoms

Benefits in General

When you are injured at work benefits generally fall into one of three categories:

1. Medical care
2. Temporary total disability
3. Compensation for a permanent disability or disfigurement

Depending on the nature of your injury, one or more of these types of benefits may be important to you. Also, there are several other benefits that may apply, such as the right to vocational rehabilitation. Whether you request the payment of any or all of these benefits is entirely up to you. However, you should learn the specifics of these benefits so that you can make an informed decision.

Employee has the right to choose

Contrary to what many employers and insurance representatives may tell the injured worker, it is the right of the injured employee to choose his treating doctor. The employer might suggest a doctor for treatment, but it is a recommendation only, not a requirement. The employer might tell the employee that he or she has to go to the company doctor, often referred to as the occupational health physician. Again, this is a suggestion only, and not a requirement. The first priority should be your health, and your choice of a treating physician should be based on that factor first and foremost.

Payment

The workers compensation insurance carrier is required to pay all costs of treatment. There is no co-pay as there is with non-occupational treatment paid by the group insurance carrier. There is also no deductible. Therefore, every dollar of medical care must be paid by the insurance carrier.

Referrals

The injured employee is limited to two (2) chains of referrals. For example, let us say you see Doctor A, who refers you to Dr. B for special treatment and he refers you to Dr. C for tests. This is all within a single chain of referrals. You have a right to two (2) chains of referrals. Therefore, if you wish to see another doctor, ask to be referred. Your family physician is a good source for recommendations. This limitation does not include emergency care for the initial treatment.

Requirements

The injured employee must show that the medical care is “causally related” to the work injury. Also, the medical charges must be reasonable and necessary.

A 2006 amendment to the law provides for a “medical fee schedule”. The purpose is to begin setting reasonable medical fees for similar procedures. The fees allowed will vary according to zip code. The medical provider will be required to accept the payment provided by law and cannot seek the balance of a bill from the injured employee.

While a workers compensation case is pending, and if a bill or a claim is being contested, the medical provider can seek payment from the injured worker. However, if the injured worker provides proof that he has filed a case with the State of Illinois Workers Compensation Commission, all collection efforts on a medical bill must stop.

If a medical bill is agreed to be due to a work injury, the insurance carrier must pay the bill within sixty (60) days or face interest charges of 1% per month.

The Workers Compensation Act also provides for a Medical Advisory Board to advise the Workers Compensation Commission on medical fees. This system should provide for fair payments to medical providers while reducing the inflationary pressures on the cost of medical care.

Insurance company exams

The insurance company has the right to have you examined by one of their doctors. This is an examination only; he has no right to treat you. When notifying you of the exam, in writing, the insurance company must also send advance payment for your travel expenses associated with this exam.

Medical Case Management

Many insurance companies will hire a medical case manager to oversee your care. This can provide some assistance to you, for example in expediting appointments and payment of bills. However, you are not required to speak with this person if you choose not to.If you do, it is recommended that you set some ground rules. For example, you may require they not enter the examination room with you, since a doctor visit should be very personal and private.

Disability payments general information

When a work-related injury prevents you from working, the insurance company must pay you while you are off. It all begins with seeing a proper medical provider and following his or her recommendations. If the doctor says you are to remain off work, you should request an “off-work slip” from the doctor’s office. One copy should be provided to your employer and you should keep a copy for your own records. Unlike sick leave or private disability plans, there is no artificial time limit on the payment of workers compensation temporary total disability payments.

Average Weekly Wage

Benefits paid to an injured worker, while off work and for permanent injury calculations, are based upon the workers “average weekly wage” (AWW). This term has very special meaning under the law and there are various ways to make the calculation depending on the employee’s circumstances. For example, a worker might be a seasonal employee or an injury might occur the first day on a job. Consult an attorney if you are not sure.

In general, the AWW is arrived at by taking the fifty two (52) weeks prior to the date of accident and averaging the wages earned over the weeks worked over that time period. Some wages may be excluded, such as a holiday bonus or a voluntary overtime. Also, weeks where the employee worked two days or less are not included, which could result in a higher AWW. Again, consult an attorney for proper calculations for your circumstance.

Amount of Temporary Total Disability (TTD) Check

An injured employee is entitled to receive two-thirds (2/3) of his average weekly wage while off work. It is 2/3 because there is no federal or state tax, and no FICA or Medicare deductions. Therefore, the net payment should be approximately equal to the employee’s net take home pay before the injury and disability. This payment is usually made every two weeks.

Minimums and Maximums
The Workers Compensation Act sets certain minimums and maximums for weekly temporary total disability benefits. These amounts are changed from time to time and an attorney can advise you whether these apply in your case.

Light Duty

Your doctor might release you to return to work under restricted activities, commonly referred to as “light duty”. If this occurs, you should request the restrictions in writing from your doctor. Again, one copy should be provided to the employer and one copy should be kept for your own file. The employer and their insurance company then have a choice. They can either provide you with work within the restrictions prescribed, or make payments of temporary total disability to you.

Temporary Partial Return to Work

Note: This section applies only to injuries occurring after February 1, 2006

If an injured employee returns to work under light duty restrictions on a part-time basis, or if the return is full-time but at a reduced rate of pay, the employee is entitled to receive temporary partial disability payments. This payment should be two-thirds (2/3) of the difference between his former wage and the wage is currently earning.

Compensation for Permanent Injury General Information

If you are injured at work you may be entitled to a payment for permanent injury. To be entitled to a settlement or award for a permanent injury, it is not required that you remain off work, or even that you miss work at all.

Awards and settlements for permanent injury generally fall into two categories: disability or disfigurement. One way to think of this is that disability affects the function of a part of the body, whereas a disfigurement affects the appearance of a part of the body. If an injury causes both, for example a scar due to surgery, you generally cannot recover for both. Most cases involve a disability as that is typically a more important consideration. A disfigurement is usually a scar such as from a burn or a superficial laceration that leaves a scar but does not affect use. Also, only disfigurements in certain areas of the body are compensable.

Categories of Disability Compensation

There are basically three ways that awards for permanent disability are made:

1. Permanent loss of use of an area of the body (the most common)
2. Permanent wage loss pursuant to section 8-d-1, also known as wage differential
3. Permanent total disability

Permanent loss of use of an area of the body

For most types of work injuries, this is the category that applies. Despite what many insurance adjusters might tell you, there is no chart or formula that states you are entitled to a certain amount of compensation. These percentage loss-of-use calculations are typically very negotiable. The exception is in the case of an amputation, although even in that case, awards and settlements for permanent injury are very negotiable.

When you sustain an injury, the first question is what part of the body is injured. Each area of the body is set at a given number of weeks for purposes of these calculations (section 8 c of the Act-each area of the body listed below). It is not an automatic award. The next issue then is what percentage loss of use, or what percentage of that number of weeks, are you entitled to. This number of weeks is then multiplied by 60% of the injured employee’s average weekly wage (AWW as explained above) to generate a number known as the Permanent Partial Disability (PPD) rate. (Calculations are based on 2/3 of the AWW for all dates of accident occurring after 2/1/06).

Example: Let us assume that a worker suffers a permanent knee injury, which would be evaluated based on a percentage loss of use of a leg. Let us also assume his average weekly wage (AWW) is $500.00 per week. A leg is set at two hundred (200) weeks. If he is awarded ten percent (10%) loss of use of the leg, he would be entitled to 200 weeks X .10 = 20 weeks of compensation. The 20 weeks is then multiplied by 60% of the $500.00 AWW.

The final calculation then would be:
200 weeks X .10 = 20 weeks
$500.00 (AWW) X .60 = $300.00 (PPD rate)
20 weeks X $300.00 PPD rate = $6000.00 award for permanent injury

Illinois Workers Compensation Act section 8 (c) maximum numbers of weeks: (Numbers in parentheses applies only to those accidents occurring after February 1, 2006).

• Disfigurement 150 weeks (162)
• Thumb 70 weeks (76)
• First or index finger 40 weeks (43)
• Second or middle finger 35 weeks (38)
• Third or ring finger 25 weeks (27)
• Fourth or little finger 20 weeks (22)
• Great toe 35 weeks (38)
• Each toe other than great toe 12 weeks (13)
• Hand 190 weeks (205)
• Arm 235 weeks (253) special rules in the event of amputation
• Foot 155 weeks (167)
• Leg 200 weeks (215)
• Eye 150 weeks (162) Enucleation add 10 weeks (11)
• Hearing Loss: One ear 50 weeks; (54) Both Ears 200 weeks (215)
• Testicle 50 weeks (54); Both Testicles 150 weeks (162)

Wage Differential

Section 8 (d) (1) of the Workers Compensation Act may apply in some cases. Most frequently, it is seen when a serious injury leaves an injured worker with permanent restrictions on their work activities. When this occurs, a worker may be placed in a job earning less money, either with the same employer or a new employer. If this occurs, the value of a wage differential may be far more valuable than a specific loss as explained in the preceding section. This is a complex area of the law and ties in closely with an injured workers right to vocational rehabilitation.

Permanent Total Disability

As the name implies, this is the type of disability award found when an injury leaves a worker permanently and totally disabled. If that occurs, the worker is to be paid two-thirds (2/3) of his average weekly wage (AWW), subject to cost of living increases. As with wage differentials, this is a complex area of the law and a lay person is usually ill-equipped to represent themselves in the face of such serious injuries.

Death Benefits

If a work accident results in the death of a worker benefits will be due to those that the worker supported such as spouse and children. This is generally two-thirds (2/3) of the workers average weekly wage (AWW), subject to statutory maximums and minimums. The amount paid in total is capped at the greater of $250,000 or twenty years ($500,000 or 25 years for accidents occurring after 2/1/06). The workers estate is also entitled to burial expenses in the amount of $4200.00 ($8000.00 for accidents occurring after 2/1/06).

Caution: The amount that you are entitled to for a permanent injury is almost always negotiable. Oftentimes an insurance adjuster will phrase their offer to make it seem as if the Workers Compensation Commission decided your claim or that there is a magical chart that dictates what you are entitled to. This is rarely the case.

The Workers Compensation Commission:

A state agency, they in turn have arbitrators that travel throughout the state. Their job is to either approve a settlement or conduct an arbitration hearing and decide the issues if the case is not settled. These arbitrators are hard-working, good people that do not represent either side, they are neutral.

The Employer’s Team:

1. The employer typically has a person(s) to manage claims within the workplace. These people, often in human resources, are usually the first to tell the injured worker what the employer and their insurance company, want the worker to do such as see the company doctor for medical care.
2. The Insurance Company has received a payment from the employer and issued a policy of workers compensation insurance. The Claim Adjuster is a full-time professional who has been trained and educated extensively in workers compensation law. The Adjuster in turn typically has a Supervisor, a Claims Committee and others to provide guidance and assistance to the Adjuster.
3. The Insurance Company Attorney. This attorney typically does nothing but litigate workers compensation cases. Many insurance companies employ both “in-house counsel” who are always available to assist as well as “outside” counsel for representation.

NO ONE ON THE EMPLOYER’S TEAM IS REQUIRED TO PROTECT THE INTERESTS OF THE INJURED WORKER. IT IS AN ADVERSARY SYSTEM, WHICH MEANS THAT EVERYONE ON THE EMPLOYER’S TEAM IS PROTECTING THE INTERESTS OF THE EMPLOYER, NOT THE EMPLOYEE.

The injured employee

A typical working man or woman facing a work injury is usually involved in the workers compensation system for the first time. Although it may seem like an uphill battle facing the adversaries listed above, it can be done. Some of the best attorneys in the state are available to help you and protect your interests. Attorneys are paid on a contingent basis, meaning they are paid a fee as a percentage (usually 20%) of the recovery. Therefore, if you do not win your case, there is no fee. Additionally, expenses such as copying of medical records are usually advanced by your attorney so that no money has to be paid out of your pocket.

Common sense ideas when it comes to hiring a lawyer for your workers compensation case:

• Ask questions and expect intelligent, easy to understand answers. Remember, you are the boss and the decision-maker. The lawyer works for you, not the other way around.
• There is no fee for the initial conference. Sit down with a lawyer and find out what rights and benefits you are entitled to. When someone whose time is very valuable is willing to talk to you for no charge, you should listen.
• Bring a family member or friend with you. Another person to listen and ask questions can only help you.
• Consult with a lawyer sooner rather than later. Since the fees are a percentage whether the lawyer works for you two weeks or two years, why not let him earn his fee by representing you as soon as possible.
• Bring your paper work with you to an appointment. It will make the conference more productive and allow the lawyer to provide better advice and counsel.

Remember: Your case is going on right now and evidence is being created right now. It is easier to avoid a mistake now than to fix a mistake later.

When you do not have a lawyer representing you, you are representing yourself. While you certainly have the right to do so, you also have the right to do your own surgery. Is that a good idea?

Questions to Ask a Lawyer Before You Hire Them

(The answers from our office are in parentheses)

1. Do you concentrate your practice in the field of Workers Compensation Law? (YES)
2. What is the percentage of your practice devoted to Workers Compensation Law? (100%)
3. How many years experience do you have in Workers Compensation? (OVER 60 YEARS COMBINED EXPERIENCE)
4. Do you have attorneys in your firm to assist me in a civil claim, if my work injury was caused through the negligence of an outside company or person? (YES, WITH >60 YEARS COMBINED EXPERIENCE)
5. Will I be provided with information in writing, such as fee agreements and the forms I sign? (YES)
6. Will I receive a copy of my medical records as they are received? (YES)
7. How do we maintain contact? Do you have an “open door” policy when it comes to setting appointments to discuss my case? (YES and home or hospital visits as needed)
8. How do the telephones work and will I receive return calls when you are in Court? (We make every effort to return calls the same day and are available via email and texting)