WORKERS' COMPENSATION FAQ
WHAT IS WORKERS' COMPENSATION?
Workers' compensation is a system set up to provide benefits to workers who have job-related injuries or diseases. It is a "no-fault" system which means that a worker is entitled to these benefits even if his employer did nothing wrong - an employee doesn't need to prove that his employer was negligent or at fault for his/her injuries, the injuries, or diseases must only have been caused by the employee's work.
Most workers' compensation claims arise out of an identifiable accident or incident. For instance, a construction worker falls off a roof while installing flashing along with a chimney, resulting in a back injury and a broken arm.
Injuries sustained by repetitive trauma are also compensable. A mason who repetitively picks up bricks and cinder blocks and lays them at or above shoulder level develops a degenerative shoulder condition over time would be an example of repetitive trauma. In that scenario, there is no identifiable accident/incident that can be attributed, but the repetitive use of the employee's shoulders over time caused the injury.
A stroke, heart attack, or aggravation of a preexisting condition is compensable if the employee's job was a cause of the injury.
If an employee is exposed to something as a result of his/her job that results in injury or disease it is compensable under the workers' compensation system in Illinois. The following are examples of exposure injuries: a nurse contracts a disease from a patient; a chemical manufacturer is exposed to toxic chemicals that result in lung disease; a machine operator at a sawmill loses his hearing from the noise.
I WAS RECENTLY INJURED WHILE ON THE JOB. WHAT SHOULD I DO?
The Illinois Workers' Compensation laws require you to notify your employer of your injury. Although the law gives an injured employee 45 days to notify his/her employee, you should notify your employer as soon as possible. Write down who you notified, the date you notified them, and how you notified them (telephone call, in person, in writing, etc.). Do not give a statement to an insurance representative without consulting an attorney first.
Make sure you get a doctor's note for any time you take off work for your injury and always provide your employer with a copy, keeping a copy for your records.
Schedule an appointment with one of our attorneys. You should bring the following with you to your appointment:
Pay stubs from the year prior to your injury;
Correspondence to and from the employer and/or insurance company regarding the injury;
Personal notes and/or journals of events;
Medical documents (discharge instructions, off work notes, bills, insurance cards, explanation of benefits, prescriptions, etc.);
Any other document relating to your employment and/or injury.
HOW DO I PAY MY ATTORNEY?
Our Workers' Compensation and personal injury clients are represented on a contingency fee basis. That means you don't pay attorney fees unless we collect money for your injuries. Under the Illinois Workers' Compensation statute, attorney fees in Workers' Compensation cases are set at 20% of the total settlement or award for the employee's injury, medical bills, and/or time off work.
WHAT IS THE DIFFERENCE BETWEEN A WORKERS' COMPENSATION LAWSUIT AND A PERSONAL INJURY OR CIVIL LAWSUIT?
The Illinois Workers' Compensation laws serve to expedite recovery for workers who are injured in the course of their employment. Instead of a personal injury lawsuit, an injured worker may file a claim with the Illinois Workers' Compensation Commission to recover for medical bills, lost wages, and the permanency or wage differential. The workers' compensation claim is an injured worker's exclusive remedy against the worker's employer. That is to say that an employee cannot sue their employer for an injury that occurred on the job in a personal injury lawsuit in state or federal court.
The Workers' Compensation Statute in Illinois was drafted to ensure the employee obtains the above benefits without having to prove "negligence". Thus, Illinois is called a "no-fault" system, meaning it does not matter whether your employer was negligent or not. Although this standard may seem straightforward, insurance companies for the employer many times dispute the nature and severity of your work injury. Sometimes disputes can arise as to your ability to perform your job duties. These insurance companies have attorneys working hard for them -- you should, too.
In a personal injury lawsuit, the plaintiff files a complaint and serves the parties alleged to be responsible for those injuries. The parties then engage in discovery, where each side gets to ask the other side written questions, request documents, take depositions, etc. to prepare for trial. There is no discovery in Workers' Compensation cases. For this reason, personal injury lawsuits typically take longer to litigate than Workers' Compensation claims.
I THINK A PERSON OR COMPANY OTHER THAN MY EMPLOYER MAY BE RESPONSIBLE FOR MY INJURY. CAN I FILE A WORKERS' COMPENSATION CLAIM AND SUE A THIRD PARTY?
Sometimes a third party may be liable for your injuries. For instance, if you are a delivery person who is involved in a car accident caused by another driver while out delivering, you have a workers' compensation claim against your employer and a potential third-party lawsuit against the driver of the car that hit you. In this case, the workers' compensation claim would entitle the injured worker to medical bill payment, temporary total disability, and a permanency or wage loss differential. The money recovered in the third-party lawsuit against the at-fault driver would then be responsible for reimbursing the employer's workers' compensation insurance company out of the amount recovered by settlement or verdict in that case. The employer's insurance company is entitled to recover the amount it paid in the worker's compensation matter less a pro-rata share of the attorney's fees and costs incurred in the third party lawsuit.
Marker & Associates will carefully review your case to determine if there is a potential third-party liability action.
WHAT KIND OF BENEFITS AM I ENTITLED TO IN A WORKERS' COMPENSATION CLAIM?
If your injury happened while you were on the job and was related to a job task you were performing, you are entitled to three main benefits: payment of your medical bills, compensation for your time off work, and payment for the permanency of your injury. Read below for a more detailed description of each type of benefit.
The employer is required to pay for all the medical care that is reasonably necessary to cure or relieve the employee from the effects of the injury. This can include first aid, emergency care, doctor visits, hospital care, surgery, physical therapy, chiropractic treatment, pharmaceuticals, prosthetic devices, and prescribed medical appliances.
Employers will typically pay medical bills directly and the injured employee will not be required to pay any co-payments or deductibles. An employer can dispute medical treatment, request an independent medical evaluation, request that a nurse case manager attend your medical appointments, conduct a utilization review, and use other means in an attempt to dispute liability for medical bills.
An injured employee may choose his or her own doctor but is limited to only one doctor. However, the employee may see any doctor the employee is referred to by his/her chosen doctor and any doctor referred to within that chain of doctors. The employee may not see another "chain" of doctors without the employer's approval.
Temporary Total/Partial Disability (TTD/TPD)
Temporary Total Disability (TTD) is compensation for the time that an employee is unable to work as a result of his/her injuries. TTD is calculated at 2/3 the employee's Average Weekly Wage (AWW). TTD is not paid for the first 3 lost workdays unless the employee misses 14 or more calendar days due to the injury. Time taken off work for an injury must be pursuant to a doctor's note.
Temporary Partial Disability (TPD) is compensation for the time that an employee is restricted to light-duty and earning less than he/she would earn in the pre-injury job(s). TPD is paid until the worker has returned to his/her regular job or until he/she has reached maximum medical improvement. TPD is calculated at 2/3 of the difference between the average amount the worker would be able to earn in the pre-injury job(s) and the gross amount he or she earns in the light-duty job.
There are four different ways of compensating an injured worker for the lasting effects of his/her: Schedule, Non-Schedule, Wage Loss Differential, and Disfigurement.
The most common means of calculating the permanency is via a schedule of body parts as set forth in the Illinois Workers' Compensation Statute. Using the schedule as a guide, lawyers, arbitrators, and judges are able to value an injured worker's injuries. To calculate the approximate value of a scheduled injury, 60% of the employee's average weekly wage (AWW) is multiplied by the number of weeks on the schedule for the injured body part and then multiplied by a percentage reflecting the loss of use or severity of injury of that body part. For instance, 100% of the loss of the use of a thumb would be complete amputation of the thumb and would be worth 76 weeks of 60% of the injured worker's average weekly wage. The schedule below applies to injuries sustained on or after June 28, 2011:
Hand if carpal tunnel
Arm amputated above the elbow
Arm amputated at shoulder joint
Toe (great toe/ "big" toe)
Toe (any other toe)
Leg amputated above the knee
Leg amputated at hip joint
Eye: loss of vision
Eye removal (enucleation)
Ear: hearing loss due to accident or trauma
Ear: hearing loss due to occupational disease
Kidney, spleen or lung (removal)
Facial bone fracture
Spine or transverse process fracture
Loss of a part of the thumb, finger, or toe up to the first joint from the tip is considered a loss of one-half the digit, e.g. 38 weeks for half a thumb. A loss beyond the first joint is considered 100% loss of the digit.
*A loss due to noise exposure may also be compensable if the employee can show that he or she was exposed to certain noise levels for the duration specified in the law.
Non-Schedule Injuries (person as a whole)
If the condition is not listed on the schedule of injuries, but it imposes certain limitations, the employee may be entitled to a percentage of 500 weeks of benefits based on the loss of the person as a whole. The number of weeks is then multiplied by 60% of the employee's average weekly wage. Typical injuries in this category are the neck, back, and spinal injuries.
In some cases, a person's injuries may prevent them from ever being able to return to their job. For instance, a truck driver who is involved in an accident that causes permanent paralysis would not be able to go back to work as a truck driver. In a situation such as this, it may be advantageous to seek recovery on a wage differential basis. Wage differential claims entitle the injured person to receive two-thirds of the difference between their average weekly wage before the injury and their average weekly wage after the injury. An injured person may recover for the permanent damage according to the statutory schedule or under a wage differential claim; a petitioner cannot recover for both a wage differential and permanency.
For an employee injured on or after September 1, 2011, the employee shall be paid the wage differential amount for five years from the date of the award or until the employee reaches the age of 67, whichever is later. For example, if a 65-year-old worker is injured and is awarded a wage differential on December 19, 2012, he is entitled to receive the wage differential payments until December 19, 2017. If a 25-year-old employee is injured and is awarded a wage differential, he is entitled to receive the wage differential payments until he turns 67 years old.
An employee who suffers a serious and permanent disfigurement to the head, face, neck, chest above the armpits, arm, hand, or leg below the knee, is entitled to a maximum of 162 weeks of benefits at the PPD rate. The number of weeks is then multiplied times 60% of the employee's AWW.
WHERE CAN I LEARN MORE ABOUT THE ILLINOIS WORKERS' COMPENSATION PROCESS?
The Illinois Workers' Compensation Commission (IWCC) website has a wealth of information. A good starting point for an injured worker who wants a better understanding of the system is the Illinois Workers' Compensation Commission "Handbook on Workers' Compensation and Occupational Diseases." The IWCC website also offers a Frequently Asked Questions section.
The best way to make sure you are fully informed of your rights as an injured worker is to discuss your situation with one of our experienced and knowledgeable attorneys.