What is Workers' Compensation?

Workers' Compensation is a "no-fault" system of benefits provided to most workers who have been injured at work or who have contracted a job-related illness or disorder. "No-fault" implies that it is not necessary for an employee to demonstrate that injuries were caused by his employer's wrongdoing or "negligent" behavior. Rather, it is only necessary that the employee be able to show that his injuries arose out of his employment. An employee is generally entitled to benefits even if the accident was his own fault.

Who is Covered?

Just about every employee who is hired in Illinois or is injured within the State of Illinois is covered by the Illinois Workers' Compensation system. Coverage under the system becomes effective at the moment an employee begins his or her job duties.

Certain classes of employment are excluded from coverage. These include certain people who work on farms, some people who work sales jobs and are paid commissions, and domestic employees, such as maids. Independent contractors are also excluded from coverage, though their employees may not be excluded.

If you are uncertain whether or not you are covered by workers' compensation, don't accept your employer's opinion that you are not. In order to be certain, you should either contact the Illinois Industrial Commission at (312) 814-6611, or an attorney whom you trust. Even if your employer tells you that you are not covered because they have failed or neglected to obtain workers' compensation coverage on your behalf, your employer or another business entity may still be responsible for payment of the benefits to which you are entitled.

Who Pays My Benefits?

Your employer is responsible for providing you with benefits under the Workers' Compensation and Occupational Diseases Acts. The employer may provide the benefits directly or may contract with an insurance company or adjustment company to provide you with your benefits.

If you are employed by an independent contractor who is engaged in construction, demolition or electrical work, and they fail to provide compensation benefits for you, the contractor or business who employed the independent contractor may be liable for your benefits.

If you have more than one employer, or if you have a part-time job in addition to your full-time job, one or both of your employers may be responsible for the payment of your benefits. Who is responsible will depend for the most part on which job you are working at the time your are injured. If you are injured while working your full-time job and your full-time employer is aware that you have a part-time job, the benefits you receive may be based upon the wages that you earn from working both jobs.

The employee is not responsible for paying any portion of his workers' compensation benefits.

How Does the Workers' Compensation System Work?

Rather than filing a lawsuit in civil court, if you are injured at work, you instead file a claim with the Illinois Industrial Commission, located in Chicago. The Industrial Commission will then assign your case to the Arbitrator who is responsible for handling all the cases in your particular geographical area.

Ultimately, if a case does not settle, the Arbitrator will act as judge and jury at the "trial" of the case. Testimony and evidence is presented as at any trial, and the employee has the burden of proof. Within several months, the Arbitrator writes a decision indicating how much the employee is entitled to recover. Both the employer and the employee have the right to appeal the Arbitrator's decision to the Industrial Commission and then through the Illinois Courts, all the way up to the Illinois Supreme Court in some instances. However, most cases do not make it that far.

What if I am Injured While Going To and From Work?

As a general rule, injuries sustained while going to and from work are not compensable. However, there are numerous exceptions. For instance, if you travel off the premises on a special errand for your employer, you are probably covered by workers' compensation.

When an employer provides transportation, such as a company truck, to be used for the employer's benefit, an employee injured while traveling to and from work is covered, so long as he does not stop off somewhere to handle his own business. Employees whose job requires them to travel are probably entitled to benefits for injuries sustained during their travel.

Injuries that occur on company premises or in company parking lots may be covered if the employee was going to or leaving work, or if the condition of the premises contributed to cause the injury. Because the exceptions are too extensive to list, it is probably best to seek legal advice if you are hurt going to or from work.

If I am Injured on a Break, am I Entitled to Benefits?

Most injuries that occur while an employee is on break are covered by workers' compensation if the injury occurs on the company's premises. Eating lunch, taking a coffee break, getting some fresh air or showering on the premises are all examples of situations in which an employee who is injured might be entitled to benefits.

Injuries sustained off the company premises during a break usually are not covered, unless the injury results from a risk of the job. For instance, when an employer controls where the employees can eat off the premises, an employee injured at that location during lunch may be entitled to benefits.

What if I am Injured at a Company-Sponsored Event?

The question often arises as to whether an employee who is injured while participating on a company-sponsored athletic team or while attending an outing such as a company picnic is entitled to workers' compensation benefits. Unfortunately, there is no clear cut answer to this question. Generally, the answer is determined by looking at the following factors:

1) Does the employer enjoy some benefit from the employee's participation;

2) Is the employer involved in organizing attendance at the event; and

3) Is the employer sponsoring and/or compelling the employee to attend the event.

Temporary Total Disability Benefits - TTD

If because of a work-related injury, an employee's doctor requires him to take time off work, he is entitled to receive benefits until he can return to work "which is reasonably available" to him. These benefits are equal to sixty-six and two-thirds percent (66-2/3%) of the average amount of wages that the employee earned during the fifty-two week period prior to his injury. This benefit amount is subject to certain maximums and minimums, set by law, and can be complicated to determine for individuals whose work is seasonal, such as construction workers who do not work as often during colder winter months.

Compensation is not payable for the first three working days following an employee's injury unless the time lost from work continues for a period of 14 calendar days or more.

Temporary disability is just that, temporary. Entitlement to these benefits ends once an employee's injury has either healed to a point where he can return to his old job or a similar "light-duty" position; or an employee has reached "maximum medical improvement", that point at which his medical condition has improved as much as it ever will according to his treating physician.

Medical

An injured employee is entitled to receive all necessary first aid, medical, surgical and hospital services reasonably required to cure or relieve him from the effects of his work-related injury or disease. In Illinois, the employee has the right to choose his own medical providers, within certain limitations. Your employer cannot force you to see a doctor of its choice for medical treatment, nor can it force you to change your treating physician. Your employer can require that you attend an "independent medical examination" given by a doctor of their choice, but you do not have to allow this doctor to give you medical treatment. Prior to your attending this examination, the employer is required to pay you the expenses you will incur in attending. If you must lose time from work to attend the exam, the employer is required to pay your lost wages.

Should you refuse to attend an independent medical examination set up by your employer, you could lose some benefits to which you may have otherwise been entitled.

The employer is liable for all of your medical expenses, as long as the medical care you receive is "reasonable" and "necessary". This includes paying the doctor who performs an independent medical examination.

As mentioned above, your right to choose the provider of your medical treatment is subject to certain limitations. Probably the most commonly encountered limitation is that the law allows you to choose only two "chains" of medical care without the consent of your employer or their insurance company. For example: if you choose to see Dr. Jones and he sends you to Dr. Smith, who sends you to Dr. Brown, all three doctors constitute one chain of referral. The number of doctors in the "chain" is not important, only that you are sent to the doctors by some doctor already in the chain. You begin your second chain by choosing to see another doctor on your own without being sent by one of the doctors in your first chain of referral.

Vocational Rehabilitation

If an employee, after reaching maximum medical improvement, is permanently unable to return to his former job because of medical restrictions, the employee may be entitled to receive vocational rehabilitation benefits. These benefits may include education, retraining, and assistance in improving your job-seeking skills.

In addition to paying for the rehabilitation itself, your employer is required to pay you "maintenance". "Maintenance" benefits are similar to temporary total disability benefits; they are paid weekly in an amount equal to 66-2/3% of the average weekly wage which you earned in the fifty-two week period immediately preceding your injury. You are entitled to receive maintenance for the entire period of your rehabilitation.

The right to vocational rehabilitation is not absolute. Whether you are entitled to receive these benefits will depend upon the particular circumstances of your claim.

Permanent Partial Disability - PPD

If the injury or disease that you have suffered results in a "permanent" loss or loss of use of part or all of your body, you are entitled to Permanent Partial Disability benefits. Permanent Partial Disability benefits can only be determined after you have reached "maximum medical improvement".

How much you receive in Permanent Partial Disability benefits is dependent on three factors:

1)The part or parts of your body which have been injured;

2)How much use of that body part or parts has been lost; and,

3)Your "Permanent Partial Disability Rate" which is an amount equal to 60% of your average weekly wage for the fifty-two week period prior to your injury.

As with Temporary Total Disability benefits, certain maximum and minimum rates set by law may affect the amount of compensation to which you are entitled.

What if my Permanent Disability Causes Me to Suffer a Loss in Wages?

You may be entitled to receive benefits called "Wage Differential". These benefits are equal to 66-2/3% of the difference between those wages that you earned prior to your injury and those that you are able to earn afterward. You are entitled to receive these benefits for as long as your wage differential lasts.

You are not entitled to receive Wage Differential payments and Permanent Partial Disability benefits for the loss of use caused by the same injury or disease. You must choose or "elect" between receiving one or the other. An experienced workers' compensation attorney can explain your options and help you elect the benefit that is best for you.

Future Medical

The Workers' Compensation Act makes available "medical, surgical or hospital services reasonably required to cure or relieve the effects of your injury or disease". These benefits can last for the remainder of your life. The burden may be placed on you, however, to show that this type of medical care is related to your on-the-job injury or disease, and not some separate cause that occurred later.

Most work-related injuries are caused by a single accident or event, and the date, place and occurrence of the injury is obvious. Occupational illnesses, on the other hand, generally are caused gradually, over time, by doing repetitive movements or by being exposed to an irritant. For instance, exposure to dust or asbestos over time can result in lung disease.

These types of injuries are covered by the Occupational Diseases Act rather than the Workers' Compensation Act. Under both Acts, you are entitled to essentially the same benefits. For all practical purposes, an occupational illness claim is handled the same way as a claim for a single accident.

As with any workers' compensation claim, you have three years to file a claim or it will be barred by the statute of limitations. However, with an occupational claim, it is more difficult to determine when the three-year period starts, because the injury occurs gradually over time. Generally, the statute of limitations starts to run on the day that you discover you have sustained an injury. In other words, when a physician tells you that you have a condition caused by work, the three years starts to run.

The statute of limitations may also start to run when an employee "should have known" that he has been injured because of his work. An onset of symptoms may be enough to show that the employee "should have known" of an injury. More information on the time limits for filing an occupational injury claim is provided herein.

Is Carpal Tunnel Syndrome Covered?

Though Carpal Tunnel Syndrome is an increasingly common occupational injury that is caused gradually over time, it still falls within the coverage of the Workers' Compensation Act, rather than the Occupational Diseases Act. It is often caused by repetitive motions of the hands, arms and wrists. Symptoms include numbness and tingling in the hands, fingers, palms, wrists and elbows, a "going-to-sleep" sensation in the hands and arms, stiffness, and pain. If you experience any of these symptoms, check with your doctor.

Is Hearing Loss Covered?

An employee can recover for hearing loss if it is caused by exposure to loud noise at work. If hearing loss is caused by a single accident, such as an explosion or a head injury, it is covered under the Workers' Compensation Act. If hearing loss is caused by repeated exposure to loud noise at work, it is covered by the Occupational Diseases Act.

A hearing loss case filed for prolonged exposure is more difficult to prove than a case based on a single event. This is because the employee must prove that he was exposed to a certain level of noise for a certain amount of time most every day. The higher the level of noise to which the employee was exposed, the shorter the amount of time an employee need prove he was exposed each day in order to recover.

Thus, for instance, an employee who is exposed to machinery that emits noise at a level of about 100 decibels (such as the noise from a jackhammer), need only prove he was exposed to that noise for about two hours a day. An employee exposed to noise at a level of about 90 decibels (emitted in some factories) must prove he was exposed for at least 8 hours a day.

If an employee's work causes his death, either through an accident or as the result of an occupational disease, the employee's dependents may be entitled to benefits. The employee's spouse, children under the age of 18 (or students under the age of 25) or any totally-dependent children or parents may be entitled to benefits. Partial dependents may also qualify for compensation.

In addition to paying a funeral allowance and any medical bills, the employer is responsible for paying weekly benefits equal to the amount the employee would have received for Temporary Total Disability benefits. These weekly benefits continue for 20 years or until they total $250,000, whichever is greater. However, if the spouse remarries and there are no children at that time who would qualify for benefits, the spouse's right to weekly benefits ends. The spouse then receives a lump sum of two year's worth of compensation.

Should your employer or its workers' compensation insurance company refuse to pay your TTD benefits or medical bills while you are off work on doctor's orders, you have the right to file a "19(b) Petition" for a special hearing. There are certain procedures that must be followed before requesting such a hearing, including sending medical records to your employer and requesting payment of your benefits.

Once the special hearing is requested, it will be set on the Arbitrator's next available docket. At that time, the employee must be prepared to prove his case with evidence and testimony, just as at the final trial of the case. The Arbitrator will then render a written decision within several months after the hearing.

Report the Injury

Under the law, you are required to report your injury to your employer and to inform your employer where you were injured. This notice can be given verbally or in writing to your supervisor or someone in management. Merely telling a co-worker is insufficient. Filling out an injury report should fulfill this requirement.

For accidental injuries, you must give notice within 45 days of the date you are injured. With occupational illnesses or disorders, you must inform your employer as soon as possible after you become aware of your condition.

Failure to give your employer notice within the time limits may cause you to lose your right to benefits. However, if you have been injured and failed to give your employer proper notice, your claim is not automatically barred. Check with an experienced attorney for more information.

Do Not Give a Statement

At the time you report your injury or sometime thereafter, you may be asked to give a statement by your employer or by an insurance claims agent. An important thing to remember is that anything you say, especially if the statement is recorded, can be taken out of context and later used against you. You are not required by law to give such a statement. Therefore, it is probably best not to give a statement at all.

See Your Own Doctor, Not the Company Doctor

One of the most important rights you have in Illinois is the right to choose your own doctor. It is important to choose carefully, not only for purposes of your medical treatment, but also because your physician will probably be one of the most important witnesses in your case.

Often, the company doctor is not the best physician to see, because he may place the company's interests before your own. Your employer cannot require you to go to a doctor of its choosing for treatment. Therefore, it is a good idea to seek an independent medical care provider.

Remember, your right to choose your own health care providers is not unlimited. You only have the right to two "chains" of health-care providers. In other words, you have the right to see two different doctors, as well as any health care providers you are referred to by those two doctors. Thus, if you are dissatisfied with the first doctor you see, you have the right to choose a different doctor. However, if you choose a third doctor on your own, your employer will not be responsible for those medical bills.

How long do I have to file a Claim?

Under Illinois law, you have three years from the date you are injured or discover your occupational disease or disorder to file a claim. Generally, if you do not file a claim within the three years, your claim will be barred.

An exception exists if your employer continues to pay you workers' compensation benefits. In that case, you probably have at least two years from the date your employer last pays you benefits to file a claim. Your employer's mere payment of medical bills does not increase the amount of time within which to file.

With occupational diseases, if your disease does not cause you a disability within two years after the day you were last exposed to the irritant at work, you will probably not be entitled to recover any benefits. Because there are exceptions to this rule, however, you should check with an attorney to determine your rights.

If in doubt, call for help

The decision whether to hire an attorney will depend on the facts of your case. Often, the benefits of hiring an attorney are numerous. Generally, an attorney can assist you in finding a good treating physician who is not company-oriented.

As soon as you hire an experienced attorney, he will begin collecting your medical records and assembling evidence for your case. This is extremely important, because in the event your employer stops paying your benefits, your attorney will be ready to take your case to trial to get your benefits started as soon as possible. A lawyer may also be able to obtain extra compensation for penalties and attorneys' fees on your behalf.

After you have reached the level of maximum medical improvement and it comes time to settle your case, it is difficult to determine how much your case is worth without the assistance of an attorney. Lawyers are able to research the results of past cases similar to yours to determine the value of your case. Trusting your employer or its insurance company to pay you a fair amount is risky.

How Much Will it Cost?

Most law firms, including Kujawski & Associates, P.C., operate on a contingency basis, which means that they do not recover any fees unless you recover in your case. In addition, this means that you do not have to pay the lawyer a retainer or any money up front. Some attorneys, however, will require you to pay your own costs up front, such as the costs of obtaining medical records or doctors' depositions. At Kujawski & Associates, P.C., we cover those costs for you until your case is concluded.

The amount of the attorneys' fee is set by law in Illinois at 20% of any disputed benefits, plus costs of processing your claim. This is the maximum amount that attorneys can charge. There are attorneys who charge less. Be certain of the fee agreement and the attorney's obligations, including his willingness to proceed to trial, if necessary, before hiring any attorney.

Attorneys can only charge a fee on disputed bills and benefits. In other words, if your employer voluntarily pays your medical bills and TTD benefits while you are off work, your attorney will not take 20% from those benefits as part of his fee. In such case, the lawyer would then only be entitled to receive 20% of your final settlement, plus costs.

However, if your employer refuses to pay your bills and TTD, and your attorney has to fight to obtain them, then your attorney is entitled to 20% of the TTD and medical bills once you receive these funds.

If I Hire a Lawyer, Do I Have to Go to Trial?

Depending upon the circumstances under which your injury is suffered, you may have remedies available to you in addition to those conferred by the Illinois Workers' Compensation Act. Often the damages that you recover by pursuing one of these remedies far exceed those that you may recover under the Workers' Compensation Act. The following is a list of other remedies that may be available to you in addition to, or in lieu of, those remedies available under the workers' compensation law:

Structural Work Act

If your injuries are caused by an unsafe support (such as a scaffold or ladder) or mechanical contrivance (such as a hoist or crane), you may be able to pursue damages under the Illinois Structural Work Act. This Act is also commonly referred to as the Scaffold Act. The Structural Work Act as two main components:

1) The support or mechanical contrivance that caused your injuries must have been being utilized in the construction, alteration, or demolition of a structure; and

2) Some party, other than your employer, must have had control over the work.

Often, the second of these two components is fulfilled by a general contractor or the owner of the premises on which you were working.

You have a period of two years, generally, from the date you are injured to file a Structural Work Act case in the appropriate court. If you think you may have such a claim, be certain to consult with an attorney well in advance of that two year period's expiration.

The 1995 Republican controlled Illinois legislature repealed this act as well as other legislation affecting the rights of injured workers.

Products Liability

If your injuries are caused by a defective product or piece of machinery, the manufacturer, seller or lessor of that product or piece of machinery may be liable for your injuries.

As with a Structural Work Act claim, product liability actions must, generally, be filed in the appropriate court within two years after the date of your injury. It is important to determine if you have a product liability claim as soon after your injury as possible, as identification of the product that caused your injury, as well as its manufacturer, seller or lessor is crucial to the success of your claim.

Automobile Accidents

If you are injured as the result of the way that someone, other than a co-employee, operated or maintained a motor vehicle, you may be able to file suit against that party. If the automobile accident occurs in Illinois, the time period for filing suit in the appropriate court is two years. If the accident occurs in another state, the time allowed for filing suit in that state may be either shorter or longer, depending upon the state. In Missouri, for example, lawsuits to recover for injuries suffered in an automobile accident may be filed within five years from the date of the accident.

Injuries and Death During(Highway)Construction Act

This law requires that contractors, subcontractors and drivers of motor vehicles take certain steps to ensure the safety of individuals working or travelling in areas in which roadway construction is taking place. If you are injured while working or driving in a road construction area, you may have a claim against a third party if their failure to comply with this satute caused or contributed to your injuries.

The 1995 Republican controlled Illinois legislature repealed this act as well as other legislation affecting the rights of injured workers.

Jones Act

This federal law affords damages to workers whose injuries occur while they are working on the many different types of vessels that navigate our country's waterways. A common example of an employee who is covered by the Jones Act is a construction worker who is injured on a barge or tugboat that is being used to construct a bridge or lock and dam project.

These types of lawsuits can be filed either in the state or federal court. However, in either case, they must generally be filed within three years of the date of injury.

Federal Employers' Liability Act (FELA)

This federal law is very similar to the Jones Act, mentioned above. Rather than protecting individuals working on navigable waterways, however, this law is aimed at offering protection to those individuals involved in work that allows our country's railroads to operate in interstate commerce.

It is not always necessary that an individual be directly employed by a railroad in order to be afforded this law's protection. As with the Jones Act, these types of lawsuits may be filed in either state or federal court, but in either case, must be filed within three years of the date of injury.

Medical Malpractice