We all remember the story of the boy who cried wolf. When a wolf was finally coming, nobody believed him and things didn’t work out so well.
Well, I got asked to take over (and I declined) a case that is similar. Seems this disgruntled worker kept on telling his co-workers that he needed to have a work injury so he could stop working. He claims he was only joking and that he has an odd sense of humor, but the day before his accident he told a co-worker that he was going to get hurt the next day.
Sure enough he fell off of a ladder and injured his low back. He has a recommendation for surgery. It actually sounds like the injury was legitimate. But three of these fellow employees believe that he intentionally fell off the ladder as he saw it as a paid vacation.
The insurance company denied his case and now it’s his word versus theirs. He has to prove the case and there is really good evidence against him. Now his lawyer won’t take his case to trial and he’s really out of options other than to accept a $500 offer that the insurance company made for him to go away and settle the case on a disputed basis.
Any time you are seen as a liar, your case goes down the drain. We and the attorneys in our network view our clients as an extension of our firms. We’ll treat you like family, but if you are going to make our other clients look bad then it’s not worth working with you. We’d be hurting their cases if we got a reputation of being willing to represent people that will make up stories or commit insurance fraud.
As you make a decision to hire an attorney, there is no way to know who will represent anyone, but trust us when we tell you that if an Arbitrator or insurance company is on the fence when it comes to your benefits, they’ll use who you hire as a law firm against you if they can. That’s why we’d never think short term by taking on the case of someone that could hurt all of our clients in the long run.
The number one piece of advice that we can give anyone with an Illinois work injury is to be honest. Don’t tell doctors or Arbitrators or anyone else what you think they want to hear, just tell the truth. Make sure to report the injury to your employer ASAP. Give a consistent history of how you got hurt to anyone that asks. You might be under video surveillance so don’t tell your doctors one thing about your pain and then go and do something your doctor would believe you physically shouldn’t be able to do.
It’s only when you have to remember what the truth is instead of telling it that you get in trouble. Good things typically happen to good people. And we don’t know any good lawyers that will work with bad people.
We all remember the story of the boy who cried wolf. When a wolf was finally coming, nobody believed him and things didn’t work out so well.
Twice a year, the Illinois Workers’ Compensation Commission releases new minimum and maximum benefits rates, which are upper and lower limits on the amount an individual can receive if they are unable earn their regular wages because of a work injury.
For example, Temporary Total Disability (TTD) is what you can get if you are unable to work while you recover. You also can get TTD if your doctor has given you restrictions and your employer doesn’t have work for you that fits within those restrictions. TTD checks are equal to 2/3 of your average weekly wage. If you earn $600 a week, you would get $400 a week according to Illinois workers’ compensation law. The exact amount varies from person to person, unless the minimum or maximum rate applies to you.
For injuries on or after January 15, 1014, the maximum TTD rate is $1,336.91. The maximum rate is a cap on the amount you can get. If 2/3 of your average weekly wage is above that, you don’t get the full 2/3. Illinois also sets a minimum rate so you are guaranteed to get a certain amount. The current minimum is $220. If you have a spouse or children, the minimum increases for each person and can go up to $330. If you are below the minimum amount, you will get TTD based on what your actual weekly wages are. If 2/3 is less than the minimum, then you get the minimum. The exception is that no matter your wage, the minimum for permanent total disability or death applies as the lowest you can receive.
Here is a list of the updated rates as of January 15, 2014:
Temporary Total Disability (TTD)
Maximum = $1,336.91
Minimum = $220.00 (up to $330 if spouse and children)
Permanent Partial Disability (PPD)
Maximum = $721.66
Minimum = $220.00
State Average Weekly Wage = $1,002.68.
Permanent Total Disability (PTD)
Maximum = $1,336.91
Minimum = $501.34
Mileage Rate = $0.56
The mileage rate is what they must pay you for travel to their doctors for something like an IME. So if it’s a 100 mile round trip, they need to send you a check for $56 ahead of time. If the insurance company doesn’t do this, you don’t have to attend the exam.
The minimum and maximum rates are set, but your individual rate might be different. It’s important to make sure your average weekly wage is correctly calculated and that you are getting all the benefits you’re entitled to under Illinois law. You don’t have to take your employer’s word for it, or the word of the insurance company. If you think your wages and benefits aren’t accurate, talk to an experienced attorney who knows wage calculations and is familiar with the ways in which insurance companies tend to underpay injured workers.
A caller to my office was seriously injured on the job. He appears to be permanently and totally disabled which means he’ll never return to work ever again. He had a terrible back injury with three surgeries and did not make a good recovery.
Unfortunately he was not looking for legal help as he already had a lawyer. He just wanted to verify that what his attorney was saying is true and I’m fine doing that. However, I wasn’t expecting the chuckle I got from his call.
He’s now in a wheel-chair (that’s not the funny part) and the insurance company had to pay for a van for his transportation and also had to remodel his house for him. These were medically necessary items. Early on after his accident, they had to provide him with a gym membership. Again, this was to aid his recovery.
Now he wants someone to shovel his sidewalk. In the summer he’d like his lawn mowed. Beyond that he wants someone to escort him to parties and other social events, including a driver so he can get drunk and female company. His reasoning is that because of this injury he can’t get a date because he doesn’t think anyone would want to date a guy in a wheelchair.
It never hurts to ask because if you don’t then you’ll definitely get nothing, but these requests are not allowed under the Illinois Workers’ Compensation Act. They aren’t medically necessary as they don’t aid his recovery. There theoretically could be an argument that the sidewalk needs to be shoveled for his safety, but I’ve never heard of that happening.
His current attorney, who is a good guy, told him the same thing.
In most cases you get paid for your time off of work, your reasonable and necessary medical bills and then you get a settlement. Every now and then something unusual happens like the gym membership or the van, but in 99% of the cases that doesn’t happen.
You also don’t get pain and suffering or punitive damages because work comp isn’t a lawsuit.
But I encourage you to ask questions and find out what you can and can’t get. It really does not hurt to ask.
The title to this post was actually the subject line of an e-mail from a claims adjustor for an insurance company that represents a large corporation. The e-mail went on to read that the case had to get wrapped up in January and only January and that she wasn’t going to overpay either.
This is a dirty little secret of the insurance industry. These adjustors get paid bonuses based on how many cases they can close. My guess is that her bonus period ends on the 31st which is why she is so desperate to move the cases this month. In fact, she said she wasn’t interested in talking in February.
Now she might not overpay, but you can bet that she will pay full value for what a case is worth. She’s only worried about her bonus, not about the bottom line of her company, you, me or anyone else.
This is why it pays to have a lawyer that knows when adjustors are going to get paid. We know when they are most motivated to be reasonable.
Now you should never settle before you are ready to. Once you close out your case, you won’t be able to get additional medical treatment if you need it.
But I laugh (and cringe) when I hear stories of people who have tried through their attorney for over a year to get a settlement and don’t have an offer. The insurance company doesn’t want to give you anything. They usually won’t offer anything (or anything fair) if you don’t file a case because they hope you will wait to long. But if a case has been filed and your lawyer reaches out, eventually you will get something fair.
Unlike catastrophic car accident cases or medical malpractice lawsuits where many people have to sign off on a settlement, most insurance adjusters for Illinois workers’ compensation claims can settle for anything they want up to a certain number. But that number is usually more than most cases are worth. You quickly realize that while they won’t just give money away, a lot of them don’t care about their jobs. They certainly don’t worry about their clients as much as we do.
The busiest settlement month is certainly December, but really in almost any month you can resolve a case with a good, aggressive approach. And as you can see from this insurance company e-mail, there are times where they will be aggressive as well.
If the insurance company is playing games, such as denying your claim without a good reason and generally jerking you around, you can file what’s called a petition for penalties. Sections 16 and 19 of the Illinois Workers’ Compensation Act give workers this option when their TTD benefits are unreasonably denied or their medical bills aren’t getting paid.
A petition for penalties is a great tool for injured workers when they’ve been treated unfairly by the insurance company. The insurer can be forced to pay you what they should have paid in the first place, plus penalties. One penalty is paid to you personally, in the amount of 50% of the medical bills that the insurance company failed to pay. Another is forcing them to pay attorney fees, in an amount equal to 20% of the unpaid medical bills. There’s also a daily penalty on unpaid TTD benefits (temporary total disability) if the failure to pay was unreasonable.
If there is a reasonable basis for the denial of your claim or the refusal to pay your medical bills, then penalties might not be appropriate. In general, penalties are reserved for when the insurance company acts in bad faith. If they’re acting reasonably, even if you think they’re wrong, and even if the judge ends up ruling against them, the thing to do is go in front of the arbitrator and argue your case.
In both of these situations – when an insurance company is acting in bad faith, and when an insurance company is denying your claim for a reason – you can’t fight it alone. Having an experienced and reputable Illinois workers’ comp attorney will make all of the difference, especially if they have a good reputation with the arbitrator who will be making the final decision.
But the point of even filing a penalties petition is to let the insurance company know that if they lose and it’s because they acted in bad faith, they stand to pay way more than had they just done the right thing. Otherwise, what do they care if they lose a trial? They will have earned interest on the money they didn’t spend and other than their lawyer fees it won’t cost them any more. So you have to be on the offensive and aggressive or they will walk all over you.
The most common question we get is “What is my case worth?” That depends on a number of things including what is your average weekly wage (“AWW”).
The AWW is typically based on the money you earned in the 52 weeks prior to your accident. It can vary based on overtime hours, having a 2nd job, bonuses, weeks taken off work and a bunch of other things. The higher your AWW, the more your case is potentially worth. Someone that makes $1,500 a week is going to get a better settlement than someone earning $500 a week who had the exact same treatment, injury and recovery.
But recently I heard something that is frightening and appears to be an attempt to lower the value of cases. The average weekly wage is based on your gross pay, not your net pay. So if you make $1,000 a week before taxes and $700 a week after taxes are taken out, if you get hurt on the job then your AWW is $1,000. A former insurance adjuster called me to tell me that one of the big insurance outfits is telling their employees to calculate AWW based on the net (after taxes) instead of the gross.
Now I haven’t seen anyone try to do that on a case yet and if they did it would be incredibly harmful to workers if they got away with it. If your net was $500 a week, then if you got injured you’d only receive $333.33 a week while you can’t work. That would be approximately a $150 a week loss. The results would be even worse when it came time to settle your case.
Not everyone receives paystubs anymore, but if you do get hurt, you need to get a copy of your pay history to your attorney. Often we are forced to rely on a written history provided by the insurance adjuster. If they “mistakenly” write down the wrong numbers then you will lose out.
Keep track of your paystubs or ask for a copy of them if an accident happens. It seems like something you shouldn’t have to worry about, but if your hours vary week to week or if you received a raise at some point then it really matters. And remember, your compensation is based on the total amount received, not what you walked away with. The only exception to that is that you don’t get paid overtime at the overtime rate. When it’s part of your AWW – which is a topic for another post – it’s done at the straight time rate.
Illinois workers’ compensation law says that an employee injured in the course of their employment is entitled to 100% coverage of reasonable medical expenses related to their work injury. Sounds simple enough, but once you are in the system, you’re bound to have questions about your specific situation. Here are a few things to keep in mind about how it all works:
- There should be no out-of-pocket costs, not even co-pays, for your work injury treatment. This includes surgery, medications, emergency room visits, check-ups, chiropractic services, physical therapy, etc.
- Your employer most likely has workers’ compensation insurance, which means that the insurance company pays your benefits and is the one you’ll be dealing with. They aren’t going to bend over backwards to cover more medical bills than what they feel they have to pay. Their goal is to pay the minimum.
- If you are seeking alternative medical procedures, you might get met with resistance from the insurance company. It generally depends on the treatment and how non-traditional it is.
- You get to pick your own doctor, but there is a limit on how many doctors you can see. You are entitled to two chains of referral. This basically means you can get a second opinion, but not a third. If the doctors, specialists and therapists are all in one line of referrals, there is no limit on the number of practitioners you can see within that chain.
- Your employer may require you to choose a doctor from their preferred network. If you opt out, you lose one of your two chains of referral, leaving you with just one.
If the insurance company or your employer is telling you that your treatment isn’t covered, if you feel like you are being forced into a certain type of treatment, including surgery, or if you’re confused about what your rights under Illinois law, talk to a lawyer who is experienced with and committed to helping injured workers get the benefits they’re entitled to.
There are some magic words that you need to hear before you can even think about settling your workers’ compensation claim. These words are “maximum medical improvement.” When you here this from your doctor, it means that you’re as good as you’re going to get. In other words, there is no further treatment that will improve your condition and your medical treatment, for the most part, has come to an end.
Until you reach maximum medical improvement, or MMI, it’s not possible to assess the permanent nature of your injury, how it will affect ability to work, and how much it will affect your future in general. These are all necessary considerations when reaching a settlement amount. Will you be able to stay in your line of work? Will there be permanent restrictions, such as a limit on how much weight you can lift? The answers impact the value of your case.
As we mentioned, your doctor needs to declare that you have reached MMI. It can be a point of contention between the injured worker and the insurance company. You may be asked to get an independent medical exam, which is performed by a doctor who is not your usual doctor. If the opinions of that doctor conflict with your own doctor, you can ask a judge (called an arbitrator in workers’ compensation) to make a determination.
Almost every step of your case, including that point at which you are determined to be at maximum medical improvement, has the potential to be manipulated by the insurance company in their favor. The best thing you can do to prevent getting taken advantage of (and receiving a low settlement amount) is to have an experienced and well-respected attorney negotiating with the insurance company on your behalf.
If you feel that your doctor is not moving your treatment along and that you have stopped making progress, it might be time for a second opinion. It impacts your potential settlement, and more importantly, it impacts your future. Nothing is more important than your health.
With a court order, the parent who receives child support can get a portion of the paying parent’s workers’ compensation checks. The payments, which replace lost wages when someone is injured on the job and can’t work, are not exempt.
The law on what income must be contributed as child support is fairly clear. It includes pretty much everything. When it comes to child support, the courts are looking at what is fair to the child, and they uphold the idea that the child is entitled to the financial support of both parents. Think of it from the perspective of what the child would get if his or her parents had not gotten a divorce. They would likely benefit from all income, including workers’ compensation.
The same can be true if the workers’ compensation comes in the form of a lump sum settlement. It may be considered income for the purposes of child support. The Illinois Supreme Court recently ruled that the guideline amount of child support (20%) applied to a workers’ compensation settlement. In any child support case, the paying party can argue for an exception to the rule, but the general rule in Illinois seems to be that workers’ compensation settlements count as income when it comes to child support. This can be a hard to hear, especially in a messy divorce.
We don’t sugar coat things. Our goal is to tell you the truth, in a way that makes sense. We believe it’s the best way to help you. Be careful when an attorney promises something that’s too good to be true, such as protecting your money from a child support order.
Cosmetic surgery, to repair disfigurement, may be covered medical expense
In Illinois, workers are entitled to benefits if they are injured on the job. These benefits cover medical expenses and pay workers a percentage of their wages while they are unable to work. Workers also may receive a lump-sum settlement, called permanency, if their injury is permanent.
Sometimes an injury results in what the law calls “disfigurement,” which is something that alters your appearance, like a scar. What happens if you suffer a work injury, you get medical coverage for treatment and recovery, but at the end you are left with a scar? If you decide you want to explore surgery to reduce the appearance of the scar, will workers’ compensation cover that expense?
In a recent case, a furnace worker was hit in the head by a steel cylinder, resulting in a one-centimeter by two-centimeter dent on her forehead. She was seeking cosmetic surgery to repair the dent, but a doctor testified that it would not cause her any health problems, and coverage was originally denied. The case made its way up to the appellate court, which disagreed and said cosmetic surgery would be a covered medical expense in that case.
Another type of benefit available in a disfigurement case is permanency (a lump sum settlement) to compensate the injured worker for the severity of their injury and the impact it will have on their life.
Illinois workers’ compensation law says that permanency is available if the disfigurement is serious. The size and location of the scar are taken into consideration, with more severe and/or visible scars typically leading to a larger settlement. The above case focused on medical coverage for the cosmetic surgery, rather than permanency, and the scar probably wouldn’t have been severe enough for a settlement.
Every case is different, but the thing to remember is that Illinois courts have recognized cosmetic surgery as a covered medical expense under the right circumstances. Talk to your attorney, or give us a call, if you have questions.
We are workers' compensation attorneys who help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.
Illinois workers’ compensation law entitles you to payments for a portion of your lost wages if you can’t work because of a job-related injury. Specifically, the law says that an injured worker should receive 2/3 of his or her pay until they can return to work. This benefit is called Temporary Total Disability (TTD).
The amount of TTD you get is calculated using your average weekly wage, which is the average amount you earned per week over the 52 weeks prior to your injury. You essentially add up those 52 weeks of pay, divide by 52, and then multiply by 66 2/3%. It’s fairly straightforward if you earn the same amount at each paycheck.
Most employers in Illinois have workers’ compensation insurance, which means that the insurance company pays your benefits, including your TTD checks. They calculate your average weekly wage, and if your situation is less than straightforward, it’s important to make sure it’s calculated correctly. If your pay varies, if you work hourly and get overtime, or if you get bonuses as part of your compensation, you should work with an experienced work injury attorney to make sure that all appropriate income is included.
The insurance company doesn’t want to pay you more than it has to under the law, so it’s in their best interest to err on the side of excluding things from your wage calculation. Obviously, that is not in your best interest. The more that you can include, the more you will receive in benefits. You want to be sure that your benefits payments accurately reflect your income.
Suffering a second injury while recovering from a work accident
Sounds like a string of bad luck, but it happens. Considering that your health is not 100% to begin with, you are arguably more susceptible to a second injury. When something like this happens, the question becomes whether workers’ compensation will continue to cover you.
Under Illinois workers’ compensation law, your benefits should continue if you can prove some sort of link between the new injury and your original work injury. There has to be a connection. If the second injury happens at work, that is clearly covered. If it’s directly caused by your first injury, like you get an infection or other side effect from surgery for your work injury, then that should be covered, as well.
The more questionable situation is when the incident is completely unrelated to work. Let’s say you suffered a back injury at work. You’ve been getting your medical bills covered, and you are unable to work and receiving benefits for that, as well. Your recovery is progressing well, but then you get in a car accident on your way to the grocery store one day. You suffer further back injuries that require surgery and a longer recovery.
There is a good argument that your benefits should continue in this situation. You can show that the severity of your car accident injury is a result of your already injured back. If you had been in perfect health, the injuries would have been less severe. So the fact that you had a work injury to begin with is one reason for your increased injury. To put it another way, it’s not a separate injury but more of a continuation of the first injury.
This example was made easier by the fact that the injury was to the same part of the body. Whether you’ll continue to get benefits depends on the specific injuries – both the original one and the secondary one – and how they are related, so it really varies from case to case. A key factor is your doctor’s opinion. An experienced workers’ compensation attorney can fight for your benefits even if the insurance company has cut you off.
We are workers' compensation attorneys who help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.
When you suffer a work injury in Illinois, you are entitled to various workers’ compensation benefits. One of these benefits is a portion of your lost pay if you can’t work while you recover. This benefit, known as Temporary Total Disability (or TTD), should come as a check on a regular basis, similar to getting a paycheck. Your first TTD check should (ideally) come within two weeks. The payments are tax-free.
So how much will you get? TTD benefits are 2/3 of your weekly pay. The exact amount is based on what’s called your “average weekly wage.” Your average weekly wage is pretty much what it sounds like. You look at the 52 weeks prior to your injury, add up all your gross pay, and divide by 52.
Overtime and bonuses might not count, but there are exceptions. If your pay varies or includes commission, bonuses or overtime, you have to make sure that you aren’t getting shorted because something was left out that should have been included. The more pay that counts toward your average weekly wage, the more you will get. If you had a second job, you might be able to include those wages, as well. Note that there are TTD maximum and minimum amounts, set by law, which apply to everyone.
Compensation for lost wages doesn’t kick in until you are out of work for a certain amount of time. If you only have to miss one day, then you don’t get missed pay. Once you miss three days, however, these benefits kick in. If you end up missing 14 days, you can get paid retroactively for those first three.
If your employer has light-duty work for you, but it pays less, you can get 2/3 of the difference through workers’ compensation. These are called wage differential benefits. If your employer can’t find work for you within your restrictions, then you are entitled to TTD payments.
Workers’ compensation benefits, including checks while you are unable to work, are paid by your employer’s insurance company. Some claims do get denied, and it’s not uncommon to have a disagreement over the amount of TTD a worker is owed. Know that the insurance companies don’t get the final say. A worker’s comp judge, called an arbitrator, can make a neutral decision based on the facts.
We are workers' compensation attorneys who help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.
While our posts are normally plain spoken and easy to understand, our last two posts and this one have been a general overview of the law. It’s basically a starting point for learning how to handle a case. We’ll go back to our normal way of writing after this.
The Act defines average weekly wage as “the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52…” (emphasis added). 820 ILCS 305/10.
A. Measuring Employee’s Weeks Worked Preceding Injury
Where the employee has worked for the employer for all 52 weeks prior to the injury, the AWW is calculated by determining the regular earnings and dividing by the number of weeks (52).
B. Seasonal Employees
The Act further states “…if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted.” 820 ILCS 305/10.
If certain employment is seasonal in nature and the employee does not earn in every week in the 52 weeks preceding the injury. In Peoria Roofing & Sheet Metal Co. v. Industrial Commission, the court held that the AWW calculation is not performed by dividing the number of full workweeks in which the employee had worked. 181 Ill.App.3d 616 (3rd Dist. 1989). The employee had worked in 48 of 52 weeks, but had worked only a total of 134 days. Instead of including a full week in the calculation where the employee could have worked only one day in that given week, the proper method was to use “weeks and parts thereof” calculation. The 134 days worked was divided by 5, a number indicating a standard 5-day workweek to get a new divider number of 26.8 weeks.
To further illustrate, in Sylvester v. Industrial Commission, the claimant had worked 48 of the 52 weeks preceding, but had only worked a total of 131 days. 197 Ill.2d 225 (2001). The number of hours during these weeks ranged from 3 to 40 hours. The claimant was a roofer who did not work during the winter because of weather but was considered “on call” year round and testified that if “work were available he would work a 4-hour week.” The workweek divisor was determined to be 26.2, as the claimant’s workweek was 5 days long and since 131 days were worked (131 / 5 = 26.2).
C. Overtime Is Excluded
As noted above, overtime is excluded from average weekly wage calculation. Because different occupations have different regular hours of employment, “overtime” is measured on a subjective standard. Overtime has been defined as 1) compensation for any hours beyond those the claimant regularly works each week, and 2) extra hourly pay above the claimant’s normal hourly wage. Edward Hines Lumber Co. v. Industrial Commission, 215 Ill.App.3d 659 (1st Dist. 1990).
In Airborne Express v. Illinois Workers’ Compensation Commission the appellate court recently stripped non-mandatory overtime from average weekly wage calculation. 372 Ill.App.3d 549 (1st Dist. 2007). The employee worked overtime in 31 of 32 weeks preceding injury. The employee had seniority in which he was able to refuse overtime, but instead chose to work it. The court found this overtime to be within the meaning of Section 10 and should not have been included in calculating the AWW. This decision is quite a departure from the way overtime cases have been treated. Mandatory overtime, however, remains part of the AWW at the regular rate of pay.
D. Other Factors Considered
Vacation pay has been determined to be included as part of an employee’s average weekly wage. General Tire & Rubber Co. v. Industrial Commission, 221 Ill.App.3d 641 (5th Dist. 1991). In most cases, the inclusion of vacation pay does not materially change the rate since the weeks of vacation would be included in the formula for determining AWW.
VIII. Temporary Total Disability (TTD)
A. When the employee becomes totally and temporarily incapacitated from performing his job duties, he is entitled to TTD benefits pursuant to Section 8(b). The compensation rate is equal to 66 2/3% of the employee’s average weekly wage. 820 ILCS 305/8(b).
B. The maintenance benefit shall not be less than the TTD rate determined for the employee. In addition, maintenance shall include costs and expenses incidental to the vocational rehabilitation program. 820 ILCS 305/8(a). The employer has the duty to pay maintenance benefits to the employee once the employee reaches maximum medical improvement.
IX. Temporary Partial Disability (TPD)
A. When the employee is capable of working light duty on a part-time or full-time basis and earns less than he or she would be earning if employed in the full capacity of the job or jobs, then the employee shall be entitled to temporary partial disability benefits (TPD). 820 ILCS 305/8(a).
B. This equates to 66 2/3% the difference between the average amount the employee would be able to perform in the full performance of his duties in the occupation in which he was engaged at the time of accident and the net amount which he is earning in the modified job provided to the employee by the employer or in any other job that the employee is working. 820 ILCS 305/8(a).
X. Nature & Extent
A. Specific Loss
Section 8(e) of the Act provides a list of specific body members which the employee may receive compensation for at the rate of 60% of the average weekly wage.
For any serious and permanent disfigurement to the hand, head, face, neck, arm, leg below the knee or the chest above the axillary line, the employee is entitled to compensation for such disfigurement, the amount determined by agreement at any time or by arbitration … not less than 6 months after the injury but shall not exceed 150/162 weeks…”. 820 ILCS 305/8(c).
C. Man as a Whole
When the employee suffers permanent injuries that are not covered under the specific loss section of the Act, the employee will be entitled to permanency benefits under a man-as-a-whole. Where there is no loss in earnings but the employee can no longer perform his usual and customary line of employment, he can ask for compensation on the basis of 500 weeks and the scheduled losses for 8(e). 820 ILCS 305/8(d)(2).
D. Wage Differentials
If the employee as a result of the injury becomes partially incapacitated from pursuing his usual and customary line of employment, he shall receive compensation for the duration of his disability, equal to 66 2/3% the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment after the accident. 820 ILCS 305/8(d)(1).
E. Permanent Total Disability
1.) Statutory Permanent Total Disability: The specific case of loss of both hands, both arms, or both feet, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability…”. 820 ILCS 305/8(e)(18). This allows the employee recovery of 100% loss of use of the specified member.
2.) Medical Permanent Total Disability: When the employee does not suffer a specific permanent total disability defined by the above statute, he can still be found to be permanently and totally disabled with an injury to any part of the body which has caused actual, complete disability supported with medical evidence. 820 ILCS 305/8(f).
3.) Odd-Lot Permanent Total Disability: For an employee whose disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the employee may qualify for “odd-lot” permanent total disability by establishing the unavailability of employment to a person in his circumstances. Valley Mould & Iron Co. v. Industrial Commission, 84 Ill.2d 538 (1981). If he is able to prove this, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the employee.
Two days ago we posted part one of a law overview created for insurance companies. Here is part two.
Before filing a claim with the Workers’ Compensation Commission, there are certain requirements an employee must meet.
A. An injured employee must give notice to the employer as soon as practicable but not later than 45 days after sustaining an accidental injury arising from the employment.
B. In repetitive trauma cases, the employee must allege and prove a single, definable accident. The date of such an accident, from which notice must be given, is the date when the injury “manifests itself.” The “manifestation date” is the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to the reasonable person. In White v. Workers’ Compensation Commission, 374 Ill.App.3d 907 (4th Dist. 2007), the employee filed an adjustment of claim for alleged repetitive trauma injuries to his right and left shoulders and back. The employee alleged his last date of employment as his injury date. Although the employer knew of the employee’s alleged injuries, at the time indicated on the employee’s application there was no causal connection opinion. The appellate court affirmed the decision of the Commission, finding that the employee failed to give notice of his alleged work injury within the 45-day requirement.
After having determined whether an employer/employee relationship existed, the next step would be to determine whether the alleged accident arose out of and in the course of employment.
A. The words “arising out of” are primarily concerned with causal connection to the employment. For an injury to “arise out of” the employment, there must be some increased risk to which the employee is subjected as compared to the general public. Nascote Industries v. Industrial Commission, 353 Ill.App.3d 1056 (5th Dist. 2004).
B. The words “in the course of” refer to the time, place, and circumstances of the accident. Martinez v. Guttman Leather, LLC, 372 Ill.App.3d 99 (1st Dist. 2007).
VI. Causal Connection
Whether a causal connection exists between the employee’s current condition of ill-being and his work-related accident is an issue that commonly arises in situations where an employee is suffering from a preexisting condition at the time of his alleged injury.
A. In Sisbro, Inc. v. The Industrial Commission, 207 Ill.2d 193 (2003), an employee was injured when he twisted his right ankle as he stepped down out of the employer’s delivery truck and into a pothole. At the time of the injury, the employee had Type II diabetes. The injury caused an onset of a degenerative condition in his right foot making him unable to work. At issue was whether the employee’s disabling condition was causally related to the work injury.
The appellate court held that the employee’s condition was not compensable under the Act because the employee’s health had deteriorated to such an extent that normal daily activity could have caused the injury (also known as the “normal daily activity exception”) or because the activity which caused the injury presented risks no greater than those to which the general public is exposed. The Illinois Supreme Court, however, reversed and reinstated the Commission’s finding that the injury was in fact compensable. The court held that it is for the Commission to decide from the record whether the injury is compensable, and if there is an adequate basis for the finding that an occupational activity aggravated or accelerated a preexisting condition and thereby caused the disability, then the Commission’s award must be affirmed.
The effect of this case is that in order to deny compensability in preexisting injury cases, employers must prove that the employee suffered from a pre-existing condition and that the work activities engaged in by the employee posed no significant risk greater than that to which the general public is exposed to on a regular basis.
We’ll post the third part in a day or two.
If you’ve done some Internet research on how disputes are resolved in an Illinois workers’ compensation case, you may have heard about what’s called a 19(b) petition. Or maybe your attorney has mentioned it, but you want to know more. It’s a great tool for injured workers who need to force payment of benefits.
A 19(b) petition is also called a petition for immediate hearing. You’re asking the arbitrator (who is like a judge) to resolve a dispute in your case. Often, the problem is that the insurance company isn’t giving you the full benefits you believe you’re entitled to receive. If your Temporary Total Disability benefits get cut off, for example, or if the insurance company is refusing to pay for the medical treatment you need, such as surgery, or if the insurance company is rejecting your claim because they say your injury isn’t work related, you could benefit from filing a 19(b) petition.
As the one making the claim for benefits, you will testify at the hearing. Your attorney will present your case. The other side will present theirs. It’s sort of like a mini-trial. The difference is that your entire case isn’t being decided; it’s usually just one issue that is being resolved. The goal, for you, is to have the arbitrator issue a decision in your favor and force the insurance company to do what they should have done in the first place.
A 19(b) hearing won’t be the next day, but you will get on the arbitrator’s schedule as soon as possible, usually within 15-40 days. That’s pretty quick in the legal world. You attorney will have to prepare your case, and if you haven’t already filed a formal claim for benefits, called an Application for Adjustment of Claim, you’ll have to do that first. After the hearing, the arbitrator will issue their decision, usually in 30-60 days.
If your benefits were denied or cut off, and your lawyer doesn’t seem to be doing anything about it, ask them about filing a 19(b) motion. It’s a good way to get your Illinois workers’ compensation issue heard and resolved, hopefully in your favor.
Sometimes, you just don’t have a good case. That can be frustrating. But what’s frustrating for us is when we see someone who has a legitimate injury caused by their job (a good case) but they’re not going after their benefits.
We understand that sometimes life gets in the way, and we totally get that the law (including the workers’ compensation system) can overwhelming. But why not do what you can to get the benefits that the law says you get? Here’s what we wish we could tell every Illinois worker, as soon as they’re injured.
Go to the doctor. If you are injured, or even if you just think you might be injured, go see your doctor. This is one of the most important tips out there.
Tell your employer. Illinois law says that you have 45 days to tell your employer about a work injury. If you don’t inform your employer, the insurance company is going to use that as a way to try and deny your claim.
Don’t listen to advice from insurance company. Their goal is to make your claim go away, or at the very least to make it worth less. So don’t rely on their advice. If you have questions about how things work, talk to an Illinois attorney.
Tell the truth. When you meet with your doctor, or your attorney, don’t downplay your injury and don’t exaggerate either. These things have a way of coming out, especially when the insurance company looks for a way to deny your claim or refuse to pay benefits.
Nothing will guarantee you benefits, but doing these things can put you on the right path. And if you need an attorney, get an experienced one. It won’t cost you any more than hiring someone who doesn’t know what they’re doing.
The biggest reason that we get calls from people who already have an attorney on their case is because the attorney isn’t doing anything for them. While there are a ton of outstanding workers’ compensation attorneys in Illinois, some are lazy or don’t really handle work comp. So when things go wrong they usually bail on you.
I recently got a call from a nice person who had a well known and crappy attorney. He’s the type of lawyer where you wonder how he ever even gets clients because he’s sloppy, disorganized and couldn’t possibly have current clients recommend him. The caller had a good injury, but had his TTD benefits stop without explanation. The attorney told him that there was nothing that could be done.
We looked in to this and had assumed that it was just the lawyer being lazy. In this case, it wasn’t. The problem was that the employer was insured by a company called Ulico. They went bankrupt so for now they aren’t paying any of the claims that they are responsible for. If it makes you feel any better, their defense attorneys also aren’t getting their bills paid.
Right now everything is stuck in the bankruptcy court. Eventually these cases will be turned over to the Illinois Insurance Guarantee Fund which is a safety net for the public when insurance companies go under. But from what we are hearing, it won’t be until the end of the year at the latest that they take over these cases and even then, they will have so much to catch up on that some cases will still sit for a bit unless you have a very aggressive lawyer or a law firm that knows people at the Guarantee Fund.
So unfortunately there isn’t anything these workers can do for now. And there’s nothing the lawyers can do either. But it would be a great idea for them to get a lawyer that has experience dealing with the Fund when they take over. Otherwise you might see your co-workers getting paid while you are still waiting. When we hear more about this issue developing we will post it to our blog.
A reader called me with an interesting question.
He wanted to know if the insurance company for his employer could deny him work comp benefits because he was not performing his normal duties at the time of the accident. The answer is, it depends.
He normally did a desk job, but on the day he got hurt he was helping some machinists move equipment. While they were wearing work boots, he was in a button downed shirt and dress shoes. He slipped and his back went out on him. He ended up at the doctor and had a MRI which showed a herniated disc. The insurance adjuster indicated that the case is under investigation because he was not performing his normal work tasks which involves invoicing and processing payments to the company.
The statement by the insurance company is a joke. You don’t have to be doing your normal job tasks to be covered under Illinois work comp laws. You just have to be doing something that is to the benefit of your employer. Clearly in this case he was doing that and there’s no way he should have his case denied or even his benefits delayed a little bit.
It would be a different story if his accident happened while he was goofing off. For example, his employer has a golf cart that they can use to drive around their plant. Had he been driving, but doing so in a reckless manner, his injuries from that accident would likely not be covered.
In general though, as an employee, your job is do whatever the employer needs. Some union members have protections that allow them to refuse certain work assignments, but everyone else for the most part has to go along with what is requested of them. The trade off is that if you get injured while doing this work that you aren’t used to, you don’t have to worry about medical bills or who will pay for your lost time.
The Illinois Workers’ Compensation Act was created to protect employers from being sued by employees for negligence. The benefit for an employee is that if they get hurt while working, it’s a no-fault law. My caller had no idea how to properly lift. He might have been partially at fault, but that doesn’t matter because that’s how the system works. You as an employee are giving your company benefits and in return you get rights back.
A reader (who is not a client) e-mailed me. Her attorney has settled her case with the other lawyer in court five weeks ago. She was about to testify in a trial and it was settled and reported that way to the Arbitrator. She left the courthouse after agreeing to resolve everything. Her work comp attorney told her that the defense law firm would prepare settlement contracts and send them out for her signature. That process was to take around one week.
Well she’s still waiting and (understandably) panicking a bit. She had left her attorney a couple of messages that weren’t returned. She wanted to know if this was normal and if not, what should she do.
It’s not normal and I told her to keep bugging her lawyer. There is no rule that says the defense attorney has to prepare the settlement contracts, although they usually do so they can bill their client and make some money. But even if they went on vacation after the agreement was reached, they should have been done by now.
I also told her to ask her lawyer to motion the case for trial. The defense law firm doesn’t want to go in front of the Arbitrator and say, “Yes I told you two months ago that we’d resolved this claim, but I’ve been too busy to prepare contracts.”
And if her attorney won’t return phone calls (I’m guessing he just has nothing to report and doesn’t want to deal with her, cowardly, but likely true) then she needs to go to his office.
This problem is worse than most because she was receiving benefits up until the court date where they settled. I didn’t get in to if settling was even a good idea or not, but going five weeks without pay has been a hardship and her lawyer likely should ask that the settlement be increased by that missed time. Quite honestly, we usually insist that benefits be paid up until the contract approval.
It’s not the worst thing in the world, but it’s something that needs to be resolved and can be.
UPDATE: Since I drafted the post, my reader told me that her lawyer finally called her back and was going to see the other attorney in court the following week. He said that if that didn’t work he’d file a trial motion. She also added that his paralegal told him that only the defense attorney can draw up a settlement contact which is total b.s.
Under the Illinois Workers’ Compensation Act, one thing you get are reasonable medical expenses to be paid to help you with your recovery. Typically people think of this as doctors visits, physical therapy, x-rays, etc. For most injured workers, this is all that you will get.
However, if you have a more major injury, there may be other items that are not traditionally considered as medical treatment that you can have paid for.
For example, I have represented a man who became paralyzed from the waist down. In my years working for him, we’ve gotten him a special van that he can drive. We’ve also had his home modified to work with his paralysis. This was all achieved by having his physician state that it was medically necessary for his recovery. Of course none of this is medical treatment, but it is enhancing his life.
Other clients we’ve worked with have had gym memberships paid for. Whether it’s to get in shape or have a place to do exercises on a machine, this can strengthen your recovery. Insurance companies don’t typically fight this because it’s actually cheaper than paying for a worker to go to physical therapy. We don’t push for one over the other, but instead let your doctor dictate what you should do.
And recently, a reader of our blog called us to tell us how wonderful her work comp attorney is and suggest that we add him to our state wide network. She had a major back fusion surgery. For 20+ years she had slept on a water bed which wasn’t practical for the back problems she had. Sleeping in it could worsen her recovery. So her lawyer got the insurance company to buy her a new bed and take away the old one. She looked at him as a miracle worker, but the reality is that while he is doing a very good job, it’s her doctor that suggested it which made it a no brainer. The insurance company was motivated to go along with it because it makes the chances of her eventually returning to work much greater.
In the big picture, just think about what is reasonable for your situation. If your doctor agrees with you, then your attorney should be able to make it happen.
A trucker who had already hired a Rockford work comp law firm to handle his case, called me because he wasn’t happy with his service. He was upset because this lawyer has been on the case for two months and hasn’t gotten him any benefits. He wanted to know if this was normal and if not, if an attorney in our network could straighten this case out.
It’s not normal. Once you are hurt, you are immediately eligible for benefits. Medical bills should be paid right away. Lost time benefits kick in once you have been off work for four days. In general, this lost time pay (TTD benefits) should be paid every two weeks.
So if you got hurt on May 1st and your doctor took you off of work right away for a month, you should get paid around May 15th. If it’s June 15th and you haven’t been paid something seriously is wrong. Quite honestly, come May 16th your lawyer should have been on the phone figuring out what’s going on and filing trial motions if necessary. If by May 20th there isn’t a word as to what’s going on, a trial motion should be filed. This is what a lawyer’s job involves.
Many people live paycheck to paycheck. If you don’t get your benefits on time it can start a terrible cycle where you lose your home, hurt your credit or suffer unnecessarily. In fact, the stress from running around like crazy trying to figure this all out can hurt the work injury recovery. We also have seen clients who rush back to their job when they aren’t medically able to and end up making themselves worse.
So you should expect that benefits will kick in right away. If they don’t or if there is a delay at some point during the case – it’s not unheard of for an insurance company to just cut you off without reason even if they’ve been paying you for a long time – you need to have your lawyer take action. If they don’t they are selling you out or at least not earning their 20% fee.
A common copout if for a lawyer to say that things take time. Sure they take time once we are in the court system, but that doesn’t mean that you do nothing. The moment there is a problem your attorney should step up.
When you are injured on the job, you get TTD benefits which is short for temporary total disability. This is 2/3 of your average weekly wage, tax free. There are minimums and maximums for what you can get based on when you were injured and how much you were making at the time you got hurt.
When you settle a case, you receive PPD benefits which is short for permanent partial disability. This is 60% of your average weekly wage multiplied by a certain number of weeks of disability.
The point is, the higher your average weekly wage, the more that you will get for the time you can’t work and for your settlement. The problem is that insurance companies know this and of course want to keep your rate as low as possible.
I’ve blogged in the past about issues like overtime benefits and making sure that you include all of your jobs in calculating wages. We’ve also discussed the importance of only counting weeks work in determining your average weekly wage which essentially means that if you took a two week unpaid break, we don’t mark those weeks down as $0, but instead toss them out. Some of this is technical and I don’t want to focus on it here.
But the one issue I’ve never blogged on which I’ve had come up lately is the issue of bonuses. Any incentive bonus should be included in the calculation of your average weekly wage. In other words, if you are given a bonus for completing a project on time or exceeding expectations or for your sales goals or any other incentive, it should be included. Stuff like birthday or Christmas bonuses are typically not included.
Not including a bonus can cost you a ton of money. For example, one caller to our office received an $8,000 performance bonus on top of her regular salary of $60,000 a year. Without a bonus being included, her average weekly wage was $1,153.85. With the bonus she had a wage of $1,307.69. This led to weekly TTD checks of $871.79 instead of $769.23. She missed 24 weeks of work and as a result ended up with more than $2,400.00 extra. That is a lot of money and more importantly, exactly what she was entitled to under the law.
In the big scheme of things, it’s all about getting with an attorney that knows the law, knows what they are doing and will be an advocate for you. I promise you that the insurance company is doing everything they can to pay you as little as possible and will gladly give you less than you deserve. You shouldn’t take less than you are entitled to under the law. It’s not a lawsuit, it’s not making waves, it’s simply the right thing to do for yourself.
A reader asks:
About 4 months ago I got hurt at work I hurt my knee from kneeling a lot at work from working on equipment I have seen doctors and did 12 appointments of pt and have been released from doctor I lost about 35 hr of work for doctor appointments, haven't heard anything more from workmans comp .I have been done for three weeks now do you think they will pay me for lost time or a settlement?
If this reader is entitled to be paid for missing time from work, that should have been paid already. Insurance companies often say, “We’ll pay that when it’s time to settle,” but the reality is, that’s not what the law is in Illinois. TTD payments and medical payments are due ASAP, not when the insurance company feels like it. Unfortunately, insurance companies are doing this more and more in an attempt to squeeze workers as much as possible. The good news is that this is an easily problem to solve.
As for the settlement, insurance companies don’t just give money away and there is no law that punishes them for not offering a settlement, unlike when they don’t pay lost time or medical bills. We can force a settlement by filing a trial motion or actually going to trial. But with changes to the Illinois Workers’ Compensation Act, you’ll find that if you don’t have an attorney that they won’t offer anything or if they do it won’t be very much because they can get away with that. I don’t say this to scare anyone in to hiring a lawyer. Like everything else that I write on this blog, it’s the truth.
Big picture is to not freak out, but instead make informed decisions. Almost every problem that comes up in work comp is solvable. You just need to know what the answers are.
In Illinois, workers who are injured on the job are entitled to certain benefits. These are not paid by the employer but rather by an insurance company. Most employers are required to carry workers’ compensation insurance. After an injury, you file a claim with the insurer.
Illinois law says what workers’ compensation benefits must be paid. One important benefit is essentially a continuation of your paychecks if you can’t work. These checks cover some, but not all, of the money you regularly earn. You can expect the amount of your workers’ compensation checks to be two-thirds of your “average weekly wage.” These checks should be paid regularly, basically on the same schedule as your paychecks would have been. So, in general, you can expect to get a workers’ compensation check every two weeks.
It sounds straightforward, and it should be, but you’re dealing with an insurance company, so there may be delays, miscalculations, denied claims, etc. Don’t get discouraged. If you need help, a good workers’ comp attorney can get you back on track fairly quickly. These attorneys know how the insurance companies work, which puts you at an advantage.
If you think that your wages have been miscalculated and your checks are less than they should be, or if your claim has been denied, your attorney can request a hearing to get things sorted out as soon as possible.
When an injury happens outside of the workplace, workers’ compensation benefits are still available in many cases. It often depends on how close of a connection there is between your job and your injury. Traveling employees, for example, spend a lot of their work time away from their employer’s physical place of business. The law recognizes this and compensates traveling employees for injuries that occur away from the physical work place, as long as the injury happened in the course of his or her employment.
Truck drivers are a good example of traveling employees. If they get hurt on the road, in an accident for example, it’s usually considered a work injury and they can get workers’ compensation benefits. However, insurance companies may try to deny benefits in cases where the traveling employee was injured doing something other than a direct work task.
In a recent case, a truck driver was preparing for his shift by putting an overnight bag in his car at home before driving to the trucking terminal where he would pick up his truck. The truck driver injured his back while putting the bag in his car. Benefits were denied and the Illinois Workers’ Compensation Commission agreed that the driver was not eligible.
We weren’t involved in handling this case, and we disagree with the decision. The Illinois Workers’ Compensation Commission found that the driver’s injury was the result of a personal risk. In other words, that he was at no greater risk for this injury than the general public. It’s a legitimate reason for denying benefits, but it shouldn’t have applied to this worker in this case. In our opinion, the truck driver was at greater risk of this injury than the general public because of his job. When the driver put his bag in his car, he was not doing it for any other reason than for his job, which required him to perform this routine regularly. The general public does not have to lift a suitcase into their car every time they go to work.
If benefits are denied because the insurance company says you weren’t working at the time you were injured, or that your injury happened while doing something that regular people do every day, you need an experienced and aggressive workers’ compensation attorney to prove your case. You need to show that you were at greater risk for your injury because of the type of work that you do. The insurance company will take any opportunity to deny benefits, but that doesn’t mean it’s over.
The general rule in Illinois is that a worker is not entitled to workers’ compensation benefits for an emotional or psychological injury. Although the harm that can be caused by a stressful work environment is very real, it is not an injury that usually qualifies for workers’ compensation under Illinois law.
However, there are some exceptions. For example, when a worker suffers a sudden and severe shock on the job, they may be eligible for help. The psychological injury must be a “sudden and severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm.” This rule, established by an old Illinois Supreme Court case, is meant to include only certain psychological injuries, and as a recent case demonstrates, the line can be unclear.
The psychological injury rule was the main issue in a recent case filed by a CTA bus driver who hit a pedestrian while driving her bus. She didn’t realize that she had hit someone, but a passenger alerted her, so she stopped the bus and got off to see what happened. The bus driver saw the pedestrian, who later died, lying in the street.
The fact that seeing someone dying in the street causes sudden shock is hard to argue against. The problem, or issue, in this case was that the bus driver waited two months to seek treatment. Apparently, she only reported feeling shaken immediately after the incident, and nothing more. After some time had passed, however, the driver sought professional help for her psychological distress. The driver and the CTA argued over this lapse of time and whether an injury must be “immediately apparent” in order to qualify for benefits.
The workers’ compensation commission determined that the bus driver did in fact suffer a work injury and gave her benefits, including payment of medical bills and temporary total disability. The CTA appealed several times, to the Illinois Workers’ Compensation Commission, then the circuit court, and finally to the Illinois court of appeals, all of which affirmed the fact that this was a legitimate work injury.
Ultimately, the bus driver was able to prove that her delay in seeking treatment did not ruin her claim. This is an important case for workers who suffer a psychological injury that does not manifest itself right away, or where the worker tries to work through the trauma themselves, without professional help. One thing to take away from all of this is that a worker who suffers an emotional trauma should seek help right away. It not only helps their recovery, but it can ensure their access to workers’ compensation.
A reader asks:
I hurt my hand and my doctor says it’s because of the job I’ve been doing for the last 20 years. He wants me to work light duty, but that does exist in my company. Can I go on unemployment?
The answer is you “could” but why would you? This seems to be a clear workers’ compensation case as the doctor said the job is the cause. So I told the reader to file for work comp because the benefits are better, they don’t expire unlike unemployment and that’s what the right thing to do is.
We actually get this type of call all the time, but it’s usually from people who are being forced to go on short term disability or social security. Nothing is better than work comp if you are entitled to it and if you take other benefits when you could get work comp, you are at risk of having to pay back everything you received.
Illinois workers’ compensation laws exist to protect workers who have injuries that are caused, aggravated or accelerated by their job. This reader busted his butt for his company for 20 years and due to repetitive trauma has developed a severe hand injury that will prevent him from returning to work, even if he has a surgery.
He shouldn’t have to go on unemployment and it’s not in his best interests to do so either.
The silver lining is that he has his doctor in his corner and that will help his case run smoothly. But it’s really a shame that the company didn’t do right by him in the beginning after all that he’s given them.
Even if a work injury is your fault, you are generally still entitled workers’ compensation benefits. It’s not a loophole – it’s the way the law was meant to work. Workers’ compensation provides 100% coverage of medical bills and payment for lost wages regardless of fault. This means your employer’s fault doesn’t matter either. The law doesn’t care. What does matter is whether the injury was related to your job. In order to get compensation, your injury must have happened in the course of your employment. The stronger the connection, the better your case will be.
The reason the law works this way is to streamline the process and protect employers from lawsuits. Injured workers theoretically get benefits easier and faster, and employers do not have to defend against a lawsuit every time a worker is hurt on the job. However, it’s not as easy as that explanation makes it seem. There are many cases where injured workers do not get their benefits easily or quickly. In these situations, an attorney can request a hearing or go to arbitration. This is not a lawsuit but a way to resolve disputes about work injury claims. The Illinois Workers’ Compensation Commission handles these disputes.
There are a few exceptions to the no-fault rules. First, if you do something extremely reckless or deliberately at work and it leads to your injury, you might have a tough time getting benefits. There is a difference between doing something negligently or carelessly (which is covered) and something on purpose (generally not covered). Don’t try to make the distinction yourself, however. The best person to help you understand your right to benefits is an experienced workers’ comp lawyer. Second, if a third party is at fault for your injury – not your employer – you can sue them. So you might have a personal injury lawsuit in some work injury situations.
Many employers in Illinois try to get out of their obligation to pay workers’ compensation benefits or payroll taxes by calling their workers independent contractors.
They might call you that, but it doesn’t mean you are one. We have to look at how much control they have over you. The more control they have, the more likely it is that you are an employee and entitled to benefits if you get hurt on the job. So we try to determine things like: Do they provide you with equipment to do your job? Do they set your schedule? Are you able to work for other companies? Do they give you a uniform? Are you doing the type of work that the business provides? (e.g. if you are doing painting for a painting company, that’s a sign you are an employee).
There was a recent case at the appellate court in Illinois that shows what we are talking about. In that case, a trucker was forced to sign a document that said he’s an independent contractor. That document is almost meaningless because you can’t sign away your rights to work comp benefits. More so, the trucking company provided a truck, mad him start each trip at their facility, made him seek approval for repairs to the truck, etc.
The Court found in favor of the worker and assessed penalties to the insurance company for their unreasonable denial of benefits to this man. They especially noted that he was driving a truck for a trucking company which made any claim that he wasn’t an employee ridiculous.
The moral of the story is that you shouldn’t be deterred if someone tells you no. Call up to an experienced work comp law firm (we’ll talk to you for free at any time) and explain your situation. Educate yourself, find out your rights and make sure that someone who is independent is giving you legal advice, instead of the insurance adjuster who is motivated to deny you.
It’s not uncommon for us to get a call that goes something like: “I hired an attorney, but they tell me it will take years for my case to settle even though I’m all better.” Another one we hear a lot is from workers who don’t have an attorney that are hoping to get their case was resolved, but can never get a call back from the insurance company.
Here’s the hint. Insurance companies want to close out their cases. That doesn’t mean they want to settle every case (if you don’t have a lawyer, they will just wait you out until it’s too late to formally file a case) and it doesn’t mean that they will give you fair value, but for them, they make money by closing the cases. Insurance adjusters are partially compensated by how many cases they get rid of.
In fact we often see insurance companies setting up “settlement days” either at their attorney’s offices or at the Illinois Workers’ Compensation Commission. They arrange meeting with lawyers for injured workers solely for the goal of ending a case. There are a bunch coming up in the next few months and it also common to see toward the end of the year as bonuses are paid based on how many files are closed before the year is over.
What you don’t want to do is settle before it’s appropriate to do so (e.g. you are still receiving medical care for your injury) or for an amount that is way less than what is fair. But any attorney who tells you that it will take years even though you are healthy is just lying to you.
And to be perfectly honest, I’ve never understood these lawyers that don’t try to settle a case when they can and it’s appropriate. A lawyer only gets paid if the case is over so they should be somewhat motivated to go for settlement when the time is right. One Chicago work comp law firm is famous for this and I really don’t know how they get new clients or keep the ones they have.
I’ve been contacted by five current or former NFL players about representation in the last six months. Their injuries arranged from career ending problems to minor stuff like leg injuries that ended a season, but didn’t end a career. Not all of them are former Chicago Bears players, but the ones that weren’t got injured while playing a game at Soldier Field.
All of the five had one thing in common though. They all had filed a case for workers’ compensation benefits in the state of California.
That of course makes no sense, until you learn that something in the union contract allows them to bring cases in California.
Now aside from the fact that the injuries all took place in Chicago, the doctors are for the most part in Chicago and any witnesses would also be in Chicago, this is a terrible idea for the players for one simple reason. The benefits in California for injured workers are terrible when compared to what they are in Illinois.
While technically the players could bring a second case in Illinois, none of the ones that I talked to even knew that was an option. I can’t imagine how many of them never find out.
I don’t expect people to have sympathy for millionaire NFL players, but the guys that I talked to weren’t millionaires, but instead younger players who played for the NFL minimum or close to it. While they still did great on that one season, none of them are set for life. But in the bigger picture, I don’t understand why someone from the NFL players union hasn’t helped these athletes understand what their best options are.
Most of our clients are not athletes, but instead work regular jobs. Many of those people get sold out too, but they don’t have anyone looking out for them until they get in the hands of the right lawyer. You’d expect that the most powerful union in the country would actually search out for the best option for their members. They don’t and it kind of shows that other workers too must look out for themselves. If you aren’t your best advocate, nobody else will be.
Two years ago, the Illinois workers’ compensation laws were overhauled to the big benefit of employers and insurance companies and at the expense of injured workers. This was after the Illinois Chamber of Commerce got the same thing to happen five years before that and weren’t happy with the results.
Now the word on the street is that the Chamber of Commerce is at it again and is hoping to screw workers over in any way they can. The rumor is that they are going to go after cases they find unfavorable to their liking and hope that the legislature will change the law to how they want it.
This comes after they got the laws changed so they are allowed to choose a treating doctor for you. You can decline that doctor, but then lose your right to a second opinion. This after they got the bogus AMA ratings to be a part of the formula used to determine the permanent value of your injury. This after they got a phony doctor review system called utilization review (UR) in which a physician, who has never examined you or even met you, can review your medical records and state that the care your doctor wants to provide isn’t needed. And they can use this UR as a basis for cutting off your medical benefits. How ridiculous is that? These UR doctors are often hired guns or retired docs that spend their day making a ton of money by making these reports.
So if the Illinois Chamber wants the law to change, consider these changes:
- Right now if your doctor says that you are authorized off work, but an IME doctor (aka, doctor the insurance company chooses and pays for an opinion) says you can return to work, they can cut off your benefits before an arbitrator says it’s reasonable. So you as the worker gets squeezed and screwed no matter how credible or not the doctor is.
- Even though the goal of workers’ compensation is to improve the health of workers, an injured worker typically can’t schedule a doctor’s appointment or medical procedure without the approval of an insurance company. If you need a MRI for your back and the adjuster assigned to your case is on vacation or just lazy, you will end up waiting which risks your health. If an orthopedic doctor in good standing says you need a procedure you should be able to get it and not have to wait on an adjuster who often is in another country.
- If you need to go to trial, it can take many months and if a case gets appealed it could take more than a year. If the Chamber is worried about fairness, how about we speed this process up? They don’t want to do that because often they will appeal cases in order to try to make the injured worker’s life a living hell.
- When a worker can’t return to his/her old job because they have permanent restrictions, they are entitled to vocational rehabilitation to help them look for a new job. But instead of actually helping the worker as they are supposed to (which includes filing a plan with the IL work comp commission even though that never happens), they often just look for an excuse to say the worker isn’t compliant so they can cut them off.
- Loss of employment benefits are not considered at all when calculating any benefits that workers receive.
- Although many workers work overtime hours, it’s often not included in the pay rates that workers receive when hurt and it certainly doesn’t come close to making injured workers whole.
- There are not real strong laws on the books for illegally firing workers that make workers’ compensation claims. How about we strengthen the penalties for companies that offend?
- Workers that get hurt on the job, even if it’s not their fault, can lose their health insurance if they are off work for an extended period of time. How about we change that?
- There is no provision for reimbursing workers for their expenses to and from doctors.
- Nurse case managers are typically assigned to the case and until they are directed otherwise, attempt to talk to the doctor directly and interfere with the worker’s medical care.
- The Chamber got a fee schedule put in to place for payment of medical benefits in a work comp case. This has caused some medical providers to not take on work comp cases.
- A damage cap was placed on the value of carpal tunnel injuries despite the formula put in to place to determine what an injury is supposed to be worth.
The fact of the matter is that Illinois work comp filings are down almost 40% from what they were 10 years ago and that Illinois is a great place for business owners. But despite that, the Chamber and their insurance company clients are continuing to push and push so they can make as much money as possible at the expense of injured workers who keep their businesses afloat. Of course if one of their loved ones was hurt, they’d be coming to us for help and wouldn’t have any problems with the law then.
If workers, unions and the general public doesn’t start to pay attention, we are going to find that the system will be gutted. If you don’t believe me, try to find a work comp lawyer in a place like Indiana or Texas where the workers have already been screwed over. You won’t be able to and if you dig deeper, you’ll find a bunch of workers that can’t get treatment for their injuries and have their lives ruined because the law is against them.
A good lawyer for work injuries in Illinois wants to get their client the most money possible for two reasons. One is that it’s the right thing to do. Two is that selfishly, the more we get for you, the more we get for us.
Despite the fact that most lawyers would want more in their pocket, I’ve seen a couple of cases where attorneys (in this case it was two separate Chicago workers comp law firms) left money on the table that could have easily increased the value of the case. They didn’t get their client’s overtime pay included in the average weekly wage (AWW) calculation.
An AWW is the baseline for figuring out how much a worker will get paid for their time off work (TTD) and settlement (PPD). You typically look at what they earned over the last 52 weeks, but it’s not always that simple. Sometimes a worker didn’t work a full 52 weeks. Other times they have a second job. And still other times they work overtime.
If you work overtime and it is required by your employer that you do so, those additional hours should be included at the straight time rate in determining your AWW. For example, let’s say you work 50 hours in a week at $10 an hour. Without overtime your average wage would be $400, with it, it would be $500 a week. Over one year that could be a difference of over $3,000 in your pocket. If you received 100 weeks of PPD benefits, it could be $6,000 more for the settlement.
This is clearly a lot of money and in some cases getting overtime included could be the difference of tens of thousands of dollars.
It’s important that you let your lawyer know how much you were working or have them obtain a wage statement. Better yet, if you’ve saved your check stubs, make sure that they have them. Insurance companies make money by limiting the amount of money that they pay out on a case. In other words, they aren’t likely to include your overtime pay without some prodding.
In one particularly shoddy case of lawyering, a caller to my office told me that the lawyer they had hired wouldn’t try to get him overtime pay because he didn’t want to “rock the boat.” What a joke. The lawyer was more worried about what the insurance company thought than about doing right by their client. The reality is that they probably didn’t know the law or want to put forth the effort to succeed, not that it would have required much work.
If you work mandatory overtime and aren’t getting paid work comp based on the full amount you worked, raise a fuss. You aren’t trying to get any more that you are entitled to under the law and you shouldn’t have to settle for any less either.
Whether callers and clients say it up front or not, 99% of them are thinking to themselves, “what is my case worth?”
It’s a sensible thought and one that leads to bad decisions for some. The better question to ask is what is a good settlement for your case?
If you just got hurt and want to know what your case is worth, there is no way to tell you what it’s worth. If you ask us we will tell you that because we are honest. The total case value depends on your ultimate outcome. Some sketchy work comp attorneys in Chicago that we know of will tell you your case is worth $100,000. It might be, it might be worth much less or it might be worth much more. They have no idea and just lie to get you to sign up.
But what we tell callers is that a good settlement depends on what your goals are. I have one case that I think is worth $300,000. I know I could settle it today for $150,000, but that would be selling my client out. Even if they offered 300k, my client needs to see his doctor in six months to make sure that his fusion surgery is still holding up. So for him, a good settlement takes in to account his health. He’ll likely be good to go after the next doctor’s appointment, but if not then he’d be screwed if his case was settled because he wouldn’t be able to get any more medical care.
Another client had a goal of retiring to Florida to be near her son and grandchildren. A good settlement for her was getting the case resolved as quickly as possible because she didn’t have the money to move until the case was done. We probably got a couple thousand less than full value, but she got an extra six months with her family.
A different client could not mentally accept anything less than $50,000 which was a reasonable figure for his case. He turned down $49,500 out of principle because it would have eaten at him to get less. It might not have been the wisest idea, but it’s his life and he was thrilled with his stand a few months later when he got what he wanted.
I could go on and on with examples, but the moral of the story is that a good lawyer will always get to know you and what is best for you personally. If they don’t take in to consideration your medical well being and other life goals, then they are really selling you short. If you let it happen, you are selling yourself short.
After a work injury, you might be unable to do the same job you had been doing for years. This could be a temporary situation or it could be permanent. Some employers are able to accommodate your restrictions by finding you light duty work. You may have to take a different job, which results in less pay. In these situations, where your work injury results in a pay cut, workers’ compensation can make up for part of the difference. This is called wage differential benefits.
Some specific issues to be aware of with wage differential benefits are the length of time you are able to receive them, as well as how they are calculated. Wage differential benefits are 2/3 of the difference between your pre- and post-injury wages. Illinois law says you can collect wage differential checks until the age of 67 or for five years, whichever is longer. If your weekly wages are inconsistent or irregular, then you’ll want to make sure your wage differential is calculated properly and that you’re receiving all that you should. This is a simple request for most workers’ compensation attorneys who have a lot of experience.
A common pitfall is trusting your employer or their insurance adjuster over your own instincts. Sure, they may have more experience than you do, but it’s you who is injured. It’s your family who needs these checks and other benefits. The point is to take control of the situation, talk to an attorney if you need help and make sure you are getting everything you’re entitled to under workers’ compensation law, including wage differential benefits if you are earning less because of a work accident.
Illinois law says that if you are injured while doing your job then you are entitled to certain benefits. You are entitled to these regardless of fault. So it doesn’t matter if you caused your injury by being careless or if your employer was negligent and caused your injury. Filing a claim is not like fighting a lawsuit. Here is an overview of what workers’ compensation should do for you.
Payment for medical bills. All medical costs that are reasonable and related to your work injury should be covered, 100%. These and other benefits are paid out by your employer’s insurance company in most cases. The majority of Illinois employers are required by law to have insurance to cover their workers in cases of job-related injury or death. You’ll likely be dealing with the insurance company if you have any questions or issues, rather than directly with your employer. Insurance companies aren’t always looking out for your best interests, so that is why it’s a good idea to have an experienced attorney on your side to have the conversations for you.
Payment for lost wages. If you are unable to work due to your injury, you should get Temporary Total Disability, which is payment for a portion of the wages you would be earning had you not been injured. The amount of these checks is based on 2/3 of your average weekly wage. If you are able to do some work, but for less pay, you should be able to get part of the difference in your wages covered by workers’ comp. If you have questions about how your TTD checks are calculated, let us know. Don’t trust that the insurance company or your employer got it right.
Payment for permanent disability. If you are left with a permanent disability, you should get a settlement or ongoing payments, depending on the situation. A permanent disability is often life altering and great care should be taken that you are getting fully compensated for the effect your injury will have on your future. Initial settlement offers are known for being low. It can be tempting to settle quickly, especially if you need the money, but you could be selling yourself short.
Job retraining. If you are unable to return to your old line of work, but you are able to work in another field or different position, you may be able to get job retraining services to help you make that change.
Death benefits. If work injury results in death, then death benefits are available to the workers’ spouse and minor children.
Although you may be entitled to these benefits under the law, it’s not always that easy. If you have trouble getting your claim approved, if you aren’t getting the benefits you are entitled to or if you are considering settling your claim, give us a call.
I hear a lot of false stuff every day from talking to clients, prospective clients and even other lawyers and insurance companies. Here are some lies that you should be aware of in no particular order.
- Your employer can’t access your medical records because of HIPAA – This is a law that deals with patient privacy. But workers’ compensation cases are exempt from that law so if your medical info gets out there, there’s nothing an attorney can do about it.
- The insurance company is worth billions of dollars and has 100’s of lawyers at their disposal – This is a b.s. lawyer marketing trick to scare you in to thinking that you have to hire a certain law firm or you are screwed. Yes these insurance companies are worth a ton and yes they could choose lots of different lawyers, but no matter what your case is about, they aren’t going to dedicate their company to fighting just you. It would be a waste of money to spend that type of money on attorneys and if there is anything you should know about insurance companies it’s that they make money by not spending it. Don’t be conned in to hiring an attorney by marketing tricks. Hire them because they give you the best chance of your case going well.
- If you decline to have surgery, your benefits can be cut off for failing to cooperate with reasonable medical care – Totally false. No insurance company can make you have surgery. It’s 100% your call and if you don’t have surgery you don’t lose your rights to benefits. That only happens if you blow off doctors appointments, don’t follow doctor’s orders, skip physical therapy, etc. Most surgeries are very serious. If you don’t want it then you don’t have to have it.
- Having a pre-existing condition disqualifies you from receiving workers’ compensation benefits – Again, not true. If your job accident causes, aggravates OR accelerates a previous medical condition then you are covered. Of course you have to prove this with medical testimony from a doctor, but that is very common. Many insurance companies will try to deny an injury because of something that happened to you years ago, even if you are fine now. Don’t be discouraged by that nonsense.
- If you are hurt at work then you automatically get work comp benefits – This unfortunately isn’t true either. You have to show that your injuries arose out of and in the course of your employment. In plain English that means that you have to show that you were performing job duties and something about those job duties led to the injury. The most common examples where people think they have a case and usually don’t is when they are sitting at a chair and just stand up and hurt their knee. Nothing about the job led to that accident. The other common case that we see a lot of is when you fall down a set of stairs. You have to know why you fell (e.g. stairs were wet, you were rushing to a meeting, etc.) or you lose your case.
- Professional athletes are not entitled to workers’ compensation because of their union contracts – Not only is this not true, but they have the exact same rights as any other worker in the State of Illinois. Even if they are just in town for a game with their out of town team, if they are hurt here then they are covered. This is even true for Green Bay Packers and St. Louis Cardinals players. J
- If you are at fault for the accident then you can’t bring a case – Workers’ compensation is a no fault law. Unlike car accidents where you need to prove negligence, you don’t have to show that anyone was at fault to win benefits.
- If you test positive for drugs after an injury, your case is over – This is not true. What does happen is you have to prove that the drugs that were in your system did not lead to you having an accident. This means you will likely have to go to trial unless your injury was caused in a way that clearly could not have been impacted by having drugs in your system such as being a passenger in a work car that gets in an accident. Otherwise you have to convince an Arbitrator that you were not high at the time you got hurt or that it played no role in your injury.
If you don’t have an attorney, the answer is probably no. It’s your right to settle if you want, but we can honestly say that in our experience you are not going to get a fair settlement offer from the insurance company without some help.
A good attorney knows how the insurance companies work and can usually negotiate a higher settlement amount than you would have been able to get on your own. It’s not that the lawyer is smarter – they just have the experience. They deal with insurance companies every day. They know that insurance companies want to pay out as little as possible and they know how to present your case in a way that will get you the best outcome possible.
When you settle your workers’ compensation claim, you are not only agreeing to a dollar amount. You also are agreeing – when you sign – that you will not seek any further benefits from the insurance company. This means that your medical bill coverage will be cut off. So it’s important to take into consideration whether your injury, illness or condition is going to be a problem for you in the future. If you don’t settle, you can choose to go to trial. If you win, your medical benefits can be left open indefinitely.
The value of your case becomes clearer as you recover and as your attorney works on your case. Be cautious if an attorney promises that your case is worth a certain amount of money early on. Even if they have a lot of experience, it’s not a good idea to put a number on a claim right away. It can set an unreasonable expectation for the client and it’s a red flag that they are making random promises in order to get you to hire them. It’s good to have an honest conversation about how strong your case is and what the strategy might be, but be careful if it sounds too good to be true.
The bottom line is to consider all your options. We know this is easier said than done when you need the money that a settlement will bring. Talk to an attorney early on so that the process can move as quickly as possible.
There are many reasons why someone might put off filing a claim. We don’t recommend it, but it happens. As long as the statute of limitations hasn’t passed, you can still file a claim, even if it’s been a year or two or more.
A statute of limitations is a deadline. It tells you how long you have to take legal action (such as filing a lawsuit or a claim for benefits) before your case is no longer allowed. In workers’ compensation cases, the statute of limitations applies to filling a formal claim, which is called an Application for Adjustment of Claim. This is filed with the Illinois Workers’ Compensation Commission.
The law says you have three years from the date of your injury to file this paperwork, or two years from the last payment of benefits (if applicable), whichever is later.
If your injury is a repetitive trauma, you might not know the exact date it started. In these cases, the statute of limitations starts on the date that you knew or should have known your injury was work related. This could be a doctor’s appointment, for example, where your doctor suggested that you have carpal tunnel syndrome.
If the insurance company agrees that your injury is work related and starts paying benefits right away, you may not have filed a claim. It’s still a good idea to do so, and it’s what we almost always recommend. If you have a claim on file, then you are all set if there is a dispute in the future. If the insurance company cuts off your benefits, for example, you can ask for a hearing. If your claim is already filed, you’ll get that hearing sooner.
In a related matter, if you did have a claim and it stalled for some reason and the insurance company is now saying your claim is closed, don’t believe it. Get an attorney to look into it. Unless you signed a settlement giving up your rights to pursue benefits in the future, your claim is not really closed. They can’t do that. It doesn’t stop them from telling you that to try and make you go away, but you should be able to get your claim reopened.
The law also sets a deadline for notifying your employer of a work injury. You have 45 days to do this, and we always suggest doing it in writing. As for the statute of limitations, keep in mind that if you wait too long and the deadline passes you may not be able to file your claim at all. Get medical treatment first and foremost, and then file a claim.
Hard to believe that 2012 is almost over. No matter when you were hurt on the job, you’ll never have a better chance at settling your case than right now.
The reason this is true is because many insurance adjusters are paid based on how many cases they close out every year. In other words, they aren’t necessarily as motivated about by how good the result is, but instead by how many files they can get off of their desk. So if a good settlement for your case would be between $30,000 and $40,000, they won’t go to $40,000, but would likely do $39,000 where as in March they’d probably hold firm at $30,000.
A typical insurance adjuster has to oversee hundreds of claims. They don’t care about your case or any other case unless it’s a huge injury or you do something to piss them off like threaten them. When I was a work comp defense attorney at the beginning of my career I had many adjusters tell me that they cut off a workers’ benefits because the worker called at them and said they were going to kill them or something to that effect. But for the 99% of other cases that they have, it’s not their money and they mostly care about their year end bonus for getting rid of cases, not how good of a job they do.
This is of course not true on every case, but it sure is true on a lot of them. In fact, many insurance companies and self insured employers are having settlement days where they invite the attorneys for injured workers to meet them at the Illinois Workers’ Compensation Commission to try to bring a case to an end. They aren’t just throwing money away and you shouldn’t settle your case until it’s the right time for you, but if you are in a position to get it over with, this is your best time ever. At least until this time next year.
A reader asks:
I had a work accident and hit by head. I was diagnosed with post concussion syndrome. I still have ringing in my ears and suffer from daily headaches. I have been released for light duty work, but not really myself yet. I can only work 20 hours a week per my doctor. Am I still entitled to receive workers comp pay to cover not working full time?
The answer is yes. This injured worker is entitled to what is called temporary partial disability benefits or TPD.
In plain English this means that the insurance company has to compensate you for your partial loss of income. So let’s assume that the reader used to make $1,000 a week and now she only makes $500 a week as she’s working only 20 hours. She will receive 2/3 of what she is missing out on, tax free or $333.33.
Beyond that, she is entitled to this payment as long as she’s working part time. If the law was anything else, workers would get screwed over. Illinois workers’ compensation law isn’t perfect, but for the most part injured workers are protected in situations like this.
Of course the insurance company told her that they don’t have to pay anything which is ridiculous. The good news is that a simple trial motion and/or petition for penalties against them should solve this problem if a phone call from a lawyer can’t.
Most Illinois workers’ compensation lawyers I know are good guys and do a good job on their cases. There are some we won’t take over from because we know that they are great at what they do and if the client has a problem with them then it’s probably not a good case. But there are others that don’t return phone calls, yell at their clients, belittle them, have a rude staff, etc., that we do take over from. Total lawyer fees can never exceed 20% so there is no increased cost to the injured worker to switch. It’s best to stay with your original lawyer if you can, but if they aren’t helping you then you should switch.
A little over a year ago we referred a case to one of our downstate partners. The injured worker in central Illinois had multiple injuries and his case was going nowhere. He hired a Springfield workers’ compensation lawyer with a reputation as a yeller. Fortunately he came to us before it was too late and the lawyer we work with got him a settlement of over $200,000 which is literally changing his life.
The other attorney had done some work on this case so we split part of the 20% fee with him. But that was between us and him to worry about. It didn’t cost the client anything and most importantly the case got headed in the right direction and I’m proud to say that it was a great result.
For you as an injured worker, hopefully you hire the right attorney the first time. If not, you need to switch before the case is too screwed up. The flip side of this good result was a woman who called us as her famously awful Chicago work comp law firm was messing up her case. That was last November. We sent her paperwork to switch to us and she never returned it. She came back to us 11 months later and now the case was so screwed up that there is nothing we can do. I know we could have solved the problem back in 2011, but not it’s too late.
We don’t expect you to know when it’s too late. But whether we are your lawyers or someone else is, if things aren’t going well and you don’t get a good explanation as to why (and a lawyer saying that these cases can take years is total b.s.) then you need to seek a 2nd opinion.
In 2010, the Illinois Supreme Court decided a case that gave workers a better chance at keeping the benefits they’re entitled to, even if they get fired. In that case, known as International Scaffolding, the Illinois Supreme Court said that an employer must continue to pay an injured worker temporary total disability benefits (payments for a portion of lost wages while a worker recovers) even if that worker gets fired for cause. Getting fired for cause is when there is misconduct, like stealing from your employer, skipping work, etc.
The court said that an injured worker is entitled to TTD benefits until he or she reaches maximum medical improvement, meaning that their medical condition is stable. This ruling benefited injured workers by allowing them to receive compensation for a work injury despite what might happen in their employment down the road. In other words, if a worker is still recovering and getting treatment, the benefits should continue, because the law entitles them to those benefits. The determining factor is the worker’s recovery and not something that happens at work that is unrelated to the injury. Or so we thought.
A few weeks ago, the Commission announced a decision that goes against the rule. In this case, the employee was on light duty because of a work injury and then got fired for stealing cigarettes. The employer refused to pay TTD and the Commission agreed that the employer could do this. The arbitrator said that stealing cigarettes was similar to refusing to do light-duty work, and the law says that a worker who refuses light duty work does not get benefits. The decision doesn’t line up with the rule that was in effect the last couple of years, which put the focus on the employee’s medical condition and whether it had stabilized.
So, the law may be changing again. It’s still early, and the case could go through an appeal, but as of now, it serves to weaken an injured worker’s case. If an injured worker gets fired later on for something unrelated to their injury, this new case gives the employer and their insurance company a reason to at least attempt cutting off benefits. And an insurance company certainly isn’t going to let an opportunity like that pass them by. You can be sure they’re aware of this new ruling and ready to deny benefits for workers who get fired for cause.
I talked to the lawyer handling the case and it’s being appealed, but they also are trying to settle. So it may be that we have two cases out there which are used to make decisions on future cases, which means that the insurance company will try to deny you if they can.
Obviously the safest thing to do is not act like a knucklehead, but we all know that some times you can do the right thing and an employer will still make stuff up.
If you have any questions about what might happen to your benefits if you’ve been fired, let us know. Our goal is to help you understand what’s happening with the law and most importantly, what it means for you.
There is nothing worse for me than getting a phone call or e-mail from someone whose family member has been killed on the job. While EVERY case should be looked in to so we can see if there is any way to make a claim or if there is a 3rd party that we can sue for wrongful death, here is a brief overview of what you need to show in order to get death benefits under the Illinois Workers’ Compensation Act:
- Like any case, you need to prove that the death arose out of and in the course of one’s employment. This in plain English means that an injury happened at work, while performing duties that are part of the job. This can be tricky. If you work at a factory and get crushed to death by a forklift driver, that would appear to be a clear case. But if that driver and you were drunk or horsing around (sounds odd, but we’ve seen it happen) then you likely would not have a case. Other times we’ve represented workers who died of a heart attack at home after an incredibly physically demanding day of work. Although they weren’t on the clock when the heart attack happened, the real accident occurred when the stress was put on the heart as the employee was at work. That is what made it a case.
- While in every death case the insurance company has to pay related medical bills and funeral expenses, they only have to pay out actual death benefits (which can be more than $500,000) if there is a surviving spouse, surviving minor child or other family member that was financially dependent on the person who was killed. So if you are 20 and were the only child of your un-married mother, you can receive benefits based on how dependent you were on your Mom. For example, if she paid for 50% of your college expenses, you could likely receive 50% of the death benefit. We must prove dependency. Interestingly enough, it doesn’t matter how strong your marriage was. IF you are married, your spouse gets the benefits. I know of cases where a couple was separated, but not divorced. Even though the wife hadn’t seen her husband in years and was dating someone else, she got benefits. That’s unusual, but it can happen. The Work Comp Commission does not decide how worthy you are.
- Were you actually an employee? We represent a lot of truck drivers and it’s a very risky job. Often truck drivers are hired as “independent contractors” when in reality they are employees like anyone else. The insurance companies fight these cases tooth and nail, but if we can prove the employer exercised a right of control over the worker then we win.
Those are the main issues we deal with. As with every injured worker we represent, there is no fee unless we make a recovery. In fact the State of Illinois even caps lawyer fees in cases like this. We’ve seen some pretty insensitive insurance companies that even in the face of a clear cut work related death try to get away with not paying what they are supposed to under the law. We never promise a result, but do promise that we will leave no stone unturned in seeing if there is a case.
Based on conversations with clients and prospective clients, I came up with a list of six things you should know about settling your Illinois workers’ compensation claim. In no particular order:
- Settlements are tax free. If you get $50,000 in a settlement, that is what you will put in your pocket. You don’t need to report it to Uncle Sam or anyone else because it’s not considered income. To be safe though we always tell clients to keep safe a copy of their settlement contract in case they ever need to prove where the money came from.
- While technically a settlement offer can be withdrawn, I can recall only one case I’ve been a part of where an offer was made, taken away and then not re-offered when the client wanted it. On the flip side I can think of over 100 times when an insurance company tried to act all tough by creating an artificial deadline, but then low and behold did give the offer again months later when the injured worker wanted it. Bottom line is that a settlement should be on your time as it’s your life that is being affected. Don’t ever get bullied in to a settlement.
- Once your case has been settled and an Arbitrator has approved the settlement contract, your case is closed and can not be re-opened. In the last few months I’ve received at least five inquiries through the internet from people who settled a case between six months and six years ago. All of them (none former clients of mine) had seen their condition get worse since the case was closed and were hoping to re-open it. It’s not possible no matter how worse off you are now. Don’t ever settle unless you are 100% sure that you will not need more major medical treatment in the future. All that said, if you have a new accident or a re-injury to an old problem, you can start a new claim.
- Your settlement can not be sealed and is public information. But don’t worry, it would take a lot of effort for someone to get all of the details on your case and 99.999% of the people in your life don’t care to know the details.
- Even if you have made a full recovery from your injury, your case does have some value (assuming it wasn’t just a contusion, very temporary strain, etc.). What the case is worth will depend on what your medical records say, your ultimate recovery, your wages and many other things. Every case is different.
- Finally, you don’t have to settle. You can go to trial, win, keep your medical rights open for the injury and still get paid for the value of your case. We often recommend this to clients that have serious injuries and likely need future medical care. Big picture is that if you don’t like the offer that is given to you or you are concerned about your health, then go to a trial. It’s a way of having your cake and eating it to.
A caller the other day had been hurt when he slipped on a wet floor at his place of employment. He injured his knee, went to the doctor and has a prescription for a MRI. The doctor suspects that he has a torn meniscus.
He called me because the insurance company will not approve the clearly needed MRI. The insurance adjuster told him that he has to give a recorded statement before anything else is approved and that if he doesn’t give one they will not approve ANY treatment. So I was called and asked, “Should I give a recorded statement?”
That answer is a big, fat NO. Nothing in the Illinois Workers’ Compensation Act requires a worker to give a recorded statement and it would be a terrible idea to give one. It doesn’t help you at all. All it can do is give a trained and skilled questioner an opportunity to twist your words against you in a way that kills your case.
This problem is easy to solve. There is no basis for medical treatment to be denied and a simple penalties motion will probably solve it if a phone call doesn’t do the trick. But when you don’t know your rights and/or don’t have someone looking out for you, these are the types of games that will be played.
So if you are asked to give a recorded statement, decline. If they ask what you are hiding, ignore them. What we do to help our clients is answer the questions for them. Anything you say can be used against you. Anything we say can not.
When you are unable to work due to a work injury or have work restrictions that your employer can not accommodate, the pay you receive is called temporary total disability or TTD. It’s called that because it’s assumed that you are temporarily disabled from working and some day will get better.
Your goal in this time should be to return to health, but sometimes that’s just a matter of waiting. Even if you do physical therapy for an hour a day, that leaves 23 hours of the day to fill. For some of our clients who are hard workers, the hardest thing for them to do is not work. Most of our clients would rather be punching the clock than sitting at home.
So what are you supposed to do with your day when you are on TTD benefits in Illinois?
The answer is that you can go about your normal routine as long as it isn’t against what your doctor is telling you to do (or not do) and doesn’t risk further injury for you. In other words, you are probably not going to be playing in your weekly flag football or pickup basketball game and for many injuries, raking the leaves is probably not advisable. But this shouldn’t stop you from going out to eat, running errands, attending a sporting event or play, volunteering in your kid’s classroom, visiting a museum, etc. As long as your work restrictions don’t say you can’t then you can.
Often clients and callers want to know if they can take a planned vacation. The answer to that is it depends. Going away for the weekend is almost never a problem. Leaving for a month would almost certainly interfere with your recovery as you wouldn’t be able to go to the doctor. The trickier case is when you’ve had a week long trip planned for some time. It’s really a case by case basis, but my belief is that as long as you don’t overly interfere with your need for medical care then it’s ok, especially if it was planned for a long time or is for a family event like a wedding. You should, however, always talk to your attorney in advance.
One thing to look out for is the fact that for any serious or long term work injury, there is a great chance that the insurance company will hire a private investigator to follow you and take surveillance video on you. So if you have restrictions from your doctor of no use of your right arm and are caught mowing the lawn or playing catch with your kid, you will look like a liar and likely lose your TTD payments.
The key, like most things in life, is to just be honest. That doesn’t mean that you can’t try to push yourself now and then, but if you are telling your doctor one thing (e.g. “I can’t even lift a gallon of milk”) and then doing something else (like bowling) you will blow up your case and many law firms, ours and our network included, will not represent you.
In no particular order, here are some good questions I’ve received from clients and callers in recent weeks
I was hurt at work and had smoked pot the day before. My boss doesn’t drug test. How long does the insurance company have to test me?
There is no real time limit, but the longer they wait, the harder it is for them to get it in a way that can hurt you.
I went to trial and we won as far as the Arbitrator saying my injury was work related, but I don’t think he awarded me a big enough amount. Can I take the money and still appeal?
What this caller wants to do is take the amount awarded and still appeal it to get more. That is not allowed.
Is it true that there is a new law that makes cases now worth nothing or very little unless you have a major injury?
No that is not true. This person was referring to the changes to the Illinois Workers’ Compensation Act for injuries after September 1, 2011. Arbitrators are now supposed to consider something called the AMA guidelines, which is a bogus rating system for injuries, when they decide what a case is worth. But that is just one of many factors they need to consider and in the Arbitrator decisions that have been written so far, they have not been just using these guidelines, but instead are awarding what we feel is the right value for these cases.
Can the insurance company refuse to authorize an MRI for my back when their doctor was the one that suggested it?
They can, but they’ll never get away with it. That’s the type of problem a good lawyer can usually solve with a phone call and letter or if needed a trial motion and something called a petition for penalties.
I have testicular cancer. I’ve worked at a factory for over 20 years. A bunch of workers there have gotten cancer and some have died. I know that my job caused the cancer. Do I have a case?
It’s one thing to know in your heart that something is true and it’s another to be able to prove it. To have a successful case this worker would need an opinion from a cancer doctor that states the cancer was caused in part or aggravated somehow by his job activities. That’s a pretty big conclusion to make as many people get this disease from unknown factors. But if a good doctor is in his corner then he has a fighting chance.
TTD is short for temporary total disability. It’s the payment you receive when you are disabled from working and it’s a temporary condition. It’s also referred to as work comp benefits, but typically you’ll hear lawyers and insurance companies just discuss TTD.
You get TTD benefits in Illinois when you have a doctor stating that you can’t work at all or you can work with restrictions and your employer can not accommodate you. This would include if you had any restrictions and had been fired, even if otherwise they would have had work for you.
What happens is that you get 2/3 of your average weekly wage for the 52 weeks prior to your injury, tax free. It’s subject to a maximum for injuries since July 15, 2012 of $1,295.47 a week. In other words, if Derrick Rose or Oprah or someone other multi-millionaire get TTD benefits, they wouldn’t get a full 2/3 of what they were making. But for most of us, the cap does not come in to play.
Sometimes you have only been on a job for a few weeks or months. In that case we will look at what you did work and divide by that many weeks or we will look what a worker normally would be making if you just started the job. Overtime pay can be included (at a straight time rate) depending on various factors, the most important of which is whether or not OT was mandatory. You can also include wages from a second job if your employer was aware that you were working two jobs.
There is a weird rule about these payments and when they start. The first three days of missed time don’t count. You are supposed to start getting paid on the fourth day. After you’ve been off for a total of 14 days, the insurance company is supposed to go back and pay you for those first three days as well. But it doesn’t have to just be days you were scheduled to work, but instead is calendar days. So if you are off on Friday and Monday, the weekend should count too even if you never worked a Saturday or Sunday before. You should expect that TTD checks will come weekly or bi-weekly.
If you are on a job where, like D Rose, you get a salary continuation, you will not also get TTD. But the good news is that there is no limit as to how long TTD can last so if your contract runs out, once it does you are able to collect benefits if you are still disabled from working.
Remember that you can not decide that you can’t work. It has to be done by a doctor. Without a doctor’s note you aren’t eligible to be paid for anything. So before you leave a doctor’s office, ask them about your job status and get something in writing from them.
If you have any questions about Illinois TTD benefits or any questions about work comp in general, please contact us at any time.
The most common question an Illinois workers’ compensation lawyer gets is, “What is my case worth?” The answer never depends on just what thing.
The biggest determining factor as to what your case is worth is your injury and the ultimate recovery that you make. So if any lawyer tells you at the get go that they know your case is worth a certain amount, they are not telling the truth. We know of one work comp lawyer in Chicago who likes to tell prospective clients that their case is worth at least $100,000. This is often a few days after the injury. Sure it “could” be worth that amount, but it might also be worth 10% of that. Nobody will know for sure until you’ve made a complete recovery.
Even after you’ve made a recovery, we need to know what job you are returning to and how much you are making now versus what you used to make. If there is a big difference, you could have a claim for what is called a wage differential. On the other hand if you make a full recovery, which hopefully is the case, your case will be worth less, but your life will be better.
There are still many other factors. The wage you were making when you got hurt is a huge issue. Someone who earns $1,000 a week and breaks there leg will get twice as much as someone who makes $500 a week and has the exact same injury.
Another factor as to what your case is worth is whether or not there is a good defense to your claim you got hurt at work. If the insurance company has a witness that you were playing softball the day after you say you hurt your knee on the job, the settlement value of the case is cut because if you go to trial and lose the case is worth $0. That’s “possible” in any case, but we only factor that in when there’s a good chance you could lose. Otherwise we want to get you full value. But if there is a chance you can lose and your case could be worth $50,000 if you win, an offer of $40,000 is something you’d have to really consider.
I have mentioned some of the major issues, but there are really so many more. Your age, your health (meaning are you sick with cancer or something like that), your need for future medical care, what your life expectancy is, how badly you need a settlement right now, what medical bills are unpaid, have you been paid for all of your time off of work, does the insurance company still represent the employer, are you hoping to return to your employer, etc. I could probably name 20 more things to consider.
A final big thought for me because every case is different is what are your life goals? I thought of this recently in a case where we were involved for guy that had multiple hernias. Normally that is not a big injury, but he unfortunately did not make a good recovery. I’d say that the case was probably worth around $150,000 on the low end and $225,000 on the high end. The case resolved for $180,000 and this was actually a great result for him. I say that because he and his wife had a life goal of moving to another state to be with their grandkids. We very likely could have gotten him the full value of his case if we went to trial and handled the appeal process. But that would have taken at least two years and that is two years of time grandkids that they wouldn’t have been able to get back. So normally where we’d recommend this offer be rejected, we wholeheartedly encourage it because it allows them to live the life they want to live.
So long story short, don’t believe anyone that tells you what your case is worth at the beginning of the case. And it’s alright to ask what your case is worth. At some point your attorney should be able to have a conversation with you that gives you a range of what they consider to be a good amount.
I just had a somewhat sad phone call with an injured worker. She fell down the steps at work and injured her back. The Illinois workers’ compensation insurance carrier for her company sent her a letter that is really just a form letter. It stated that they had “investigated your case and have determined that your injury is not covered under the Illinois Workers’ Compensation Act.”
Unfortunately for this caller who has been disabled since this happened, it’s too late to do anything as the accident was in 2006. She just assumed that the insurance company was able to determine if an injury is covered or not. When they said no, she assumed that was that until recently when a friend suggested that she contact a lawyer. Unfortunately she waited too long.
Insurance companies make money by not paying out claims or reducing what they do pay. They send denial letters all of the time with the hopes that you, like this woman, will just go away. It’s not just work comp where this happens. I’ve talked to probably more than 100 people who were sitting at a stop light when they got rear-ended and then were told by an insurance adjuster that the person that hit them was not at fault. Every time they get you to believe they owe nothing or quit because you are frustrated they save/make money.
But please know that the insurance company is not a Judge and they do not have final say as to whether or not your claim is covered. They are of course motivated to not help you. So if you do get a letter denying your case, don’t freak out. Talk to a lawyer and get their independent and honest opinion about whether or not you do have a case. Often we can get a denial turned in to an acceptance right away.
A recent Illinois worker’s compensation case raises the issue of what happens to your benefits if a separate and unrelated condition, such as cancer, prevents you from following your treatment plan or making any progress toward recovery.
The simple answer is that it doesn’t matter. If you get cancer on top of a work injury, the last thing you should be worrying about is whether your benefits will be cut off. The law says that your employer takes you as they find you, which means that you won’t be penalized for not being in perfect health in the first place or for complications during treatment that are beyond your control.
In this case, a woman suffered neck and arm injuries at work. She was receiving temporary total disability payments and had started medical treatment, which included steroid injections. She then had to stop the injections because she was diagnosed with breast cancer and was undergoing surgery, as well as chemotherapy.
The reality is that the insurance company might terminate your benefits despite the law being in your favor, but you should be able to fight back and get your benefits reinstated. It’s not your fault that you got sick during treatment for your work injury. If you had decided to blow off your treatment and go on vacation, for example, that would be a different story.
In this case, the woman’s doctors agreed she required medical care, that she had work restrictions and that she was not at maximum medical improvement. So even though she had to stop treatment, these facts continued to be true. The final decision was that she was entitled to her benefits during the time she was being treated for cancer.
There are a number of ways to answer this question, which we get all the time. The most truthful answer probably is “I don’t know,” but we also will take the time to explain why we don’t know and give you some idea of the different factors that play a part in the value of a case.
Some attorneys will try to guess at a dollar amount; others will just tell you what you want to hear. Neither is helpful, and in fact telling you want to hear (“Your case is definitely worth six figures”) can backfire when it becomes clear, down the road, that the case is worth much less.
Every case is different. The outcome can depend on any number of factors, including the following.
- The arbitrator assigned to the case. Arbitrators, like judges, are supposed to be impartial, but in reality they have certain tendencies. If your attorney has a good amount of experience, they should know what they are. Some arbitrators are seen as more worker friendly, while others seem to favor employers.
- Your wages. The more you were earning before the injury, the more the case is worth. This is because the formula used to determine a settlement includes the extent of your injury as well as your wages.
- Whether you have an attorney. If you have an attorney, your case likely will be worth more. Insurance companies tend to give low settlement offers to injured workers who aren’t represented. An attorney with years of experience negotiating with insurance companies is going to know what is fair and be able to get it for you.
- Your recovery and your health. Permanent injuries, especially serious permanent injuries, are worth more. Until you undergo treatment, it’s difficult to predict what shape you’ll be in when treatment is complete.
- Your job status. If you can’t return to your pre-injury job or can but with restrictions, your case will have more value.
- Your subjective complaints. How the injury effects your daily living is really relevant.
- Your age. A permanent injury to a 25 year old is often worth more than the same injury to a 60 year old.
- When you were hurt. Values of cases for injuries from before September 1, 2011 are different than those from after that date.
Here’s a somewhat odd one from a reader:
I’ve had my lawyer since 2010. He helped me with a pension case although he screwed that up and now I’m worried he screwed up my comp case. I had a settlement offer from opposing counsel and I signed settlement contracts. The other day they rescinded the offer and my gut is that my lawyer screwed up by not getting the contracts back to them in time. I’ve got no proof, that’s just my gut. We had a hearing scheduled that was cancelled because we had a settlement. Is this legal? Anything I can do?
To answer her question, yes it’s legal, but it’s incredibly unusual. In fact, I’ve never been involved in a case where a settlement offer was withdrawn. In almost any imaginable situation, a defense attorney would do this for the exact reason the reader thought; if you don’t return signed settlement contracts then we don’t have a deal. It’s basically a way, I guess, to put their feet to the fire.
The only other reason to withdraw an offer is because new information became available that makes the case either defendable at trial or leads them to believe it’s worth much less than they offered. Again though, that would be highly unusual as offers aren’t made without investigating a case first and doing a proper evaluation.
If I was representing her I’d simply motion the case for trial and tell the Arbitrator that they backed out on a deal. If we still wanted to settle I’d bet my fee that they’d be willing to sign the contracts that day. A little known secret about Illinois workers’ compensation law is that insurance companies actually want to settle cases. When they take a case off their books, even if they pay you a big settlement, it helps their bottom line.
We got a call from a frustrated and paranoid guy who had settled his case for $150,000. That’s a really big settlement for an Illinois work injury, but in his case, he could no longer work his high paying old job. Due to his injury and lack of education, a vocational counselor said that he could only earn $10 an hour.
We can’t ever tell for sure what a case is worth without reviewing medical records and other documents, but in this case I was able to tell that given his wage loss, the value of his case was probably closer to $250,000 or more, especially knowing that he was in his 20’s. The caller had heard something similar from another attorney and has convinced himself that the insurance company bribed his lawyer to get him to recommend a lower settlement.
Now I know two things for sure: 1. This case was not well handled and is worth more money. 2. There is no way the lawyer, whoever it was, got bought off by the insurance company or anyone else. It just doesn’t happen. If an insurance company got caught doing that, they could be shut down which could be a billion dollar loss. If a lawyer got caught they’d lose their license and possibly go to jail. Even if they offered a lawyer an extra few dollars, it wouldn’t be worth the risk, especially considering the attorney could get that money by just doing their job. This is movie stuff that just doesn’t happen.
But the real reason for his call was that he wanted to re-open the case since he’s learned that he got a low settlement. Unfortunately that is impossible. Once the settlement contracts are signed by both parties and approved by an Arbitrator, the case is over and can not be re-opened to get more money or treatment for any reason.
He is out of luck. So before you settle a case, make sure you are 100% happy and ready for the case to be over. If you aren’t don’t sign. It’s way better to settle too late than to settle too early. Your lawyer might not like it because they won’t get their money, but who cares about their happiness. This is your case and you have to be the only one happy with the final result.
This is rare, but it happens. And if it happens to you that is unfortunate because it means that you’ve suffered a major injury and can’t return to your normal line of work.
When this does happen to you, the insurance company has an obligation to pay for vocational rehabilitation. This can mean many things, but usually it means that they provide a vocational counselor to work with you and figure out what types of jobs you can perform. Often they assist you in looking for jobs, preparing a resume, practicing for interviews, etc.
Their job is to propose a vocational rehabilitation plan that can get you to the highest level of wages possible. Of course the plan has to be realistic. So if you are sixty years old and didn’t graduate from high school, you probably aren’t going to see a plan that suggest your learn a new field and get trained for that.
On the other hand, a younger worker with skills can get re-trained for a new career. Sometimes this can mean taking computer classes. At times it can mean sending you to college. There was a recent case in which the Workers’ Compensation Commission ordered that a severely injured plastics worker should go to Northern Illinois University to get a teaching certificate. This would put his earning potential as high as $70,000. Without it he had earning potential as low as $18,000 and change.
Of note is that the plan that was presented to the Arbitrator was not created by the insurance company counselor, but instead by a vocational counselor that the worker’s lawyer hired. The Arbitrator specifically found this counselor to be more persuasive, reliable and credible than the one the insurance company paid for that said college was not needed. This worker had been laid off by his employer and had RSD in his right hand following a surgery. If the insurance company had their way, he would have walked away with no career prospects and fended for himself the rest of his life. But this is exactly why employers have insurance and the Illinois work comp laws are designed to protect guys like this. And in this case they worked perfectly.
One thing to know is that while you are vocational rehabilitation, no matter how long it takes, the insurance company has to pay you maintenance benefits which is financially the exact same thing that TTD benefits are, but just called something else. And it’s very important that you cooperate in this process or you could lose your benefits.
Not everyone that calls or e-mails our office needs help with a case. Some people just want to ask a question. Here are some of the best ones I’ve received of late:
I settled a workers’ compensation case. Is that a public record?
Yes it is, but the chances of most people seeing it are remote. You’d either have to go to the Illinois Workers’ Compensation Commission to look it up in person or figure out how to find it on their website.
My injury date was in 1999. I never received a settlement and they still pay for my medication. Is it too late for a settlement?
Amazingly, the answer is that it’s not too late. As long as there has been a payment in the last two years, you can still file your case.
My husband had his settlement contract approved 30 days and hasn’t been paid yet. He thinks his lawyer stole the money. Is he crazy?
Maybe not crazy, but it’s really unlikely that something happened like this. What matters is not when the contract was approved, but when did the insurance company get it? Usually they pay within two weeks of that happening, but at times it can be up to 30 days. So my advice to them was to chill and if nothing happened for another month, call me back then.
I paid $60 in co-pay fees before my case was approved by the insurance company. Can I get that back?
Yes. If you provide receipts it should be a no brainer.
Is it true that obesity and diabetes can cause carpal tunnel?
With the caveat that we aren’t doctors, yes that is true and has been a reason for insurance companies denying cases. But if you do a lot of repetitive work with your hands, we think you should win your case.
I was hurt in Illinois, but live in Arizona. The insurance company wants me to come back to Illinois for an IME. Can they make me do that?
Yes they can. The theory is that if you want to pursue work comp benefits in Illinois, you have to be willing to come back here for an IME unless your condition prevents you from traveling.
My doctor recommended back surgery, but I don’t want it. Can the insurance company make me have it.
No. You can never be forced to have a surgery, but could lose your benefits if you don’t cooperate with other medical care like going to physical therapy, appointments with your doctor, etc.
We are workers’ compensation attorneys. Every lawyer in our state wide network focuses their practice on work injuries. We don’t do divorce, traffic, bankruptcy, etc. We also aren’t labor lawyers, but labor issues do come up on some cases. If that happens we will usually refer you to a lawyer whose practice focus is employment law. The cases are usually so related that the work comp lawyer has a duty to try and help you find someone for the other case.
Even though we aren’t labor attorneys, that doesn’t mean we can’t give any advice to you on non work comp issues. And one piece of advice you should be aware of is that you should not resign from your job unless they are paying you to do so. And even then you need to make sure it won’t screw up your work injury case.
If you resign your job or otherwise quit, you could lose your right to receive TTD benefits. That doesn’t happen if you are fired, but if you quit then the employer can say that they would have had a job you could have worked even if you have physical restrictions.
Sometimes at the end of a case, especially if it has dragged out for years, an employer doesn’t want an employee back because their job has been filled. That is fine, but if they want you to resign they should pay your for it. In some cases we’ve gotten clients tens of thousands of dollars in extra money to resign. At times it’s happened when our client didn’t want to return to work anyway and already had a new job lined up. That’s basically free money.
Other times we’ve seen an insurance company say that they won’t settle unless they also get a resignation. This is rare, but you should never resign to just get a settlement because we can get that for you by taking the case to trial. If they want the resignation (and you don’t have to do it if you don’t want by the way) then they should pay more.
This should be an obvious way to handle this matter to even the worst work comp lawyer out there. But some general practice attorneys who just dabble in work comp might not know this. So please note that you should never give away rights without getting something for it.
One of the worst things you or a lawyer can do is to settle a case for way less than it’s worth. It’s not uncommon for us to tell a client to take a $50,000 offer when we think they could get $55,000 at trial. $50,000 in your pocket today is probably better than $55k in six months when that amount isn’t guaranteed and a case can be appealed. But if the case is worth $250,000 and you settle today for $100,000 then you or your lawyer is just making a short sided money grab.
Some people really need the money which we understand. Other times the insurance company will talk all tough and tell you that they don’t care that the case is worth 250k. The most they’ll pay is 100k and that’s that. Well, let them act all macho. You can go to trial and get an award from the Arbitrator.
Sometimes trial awards result in you getting your money, but it can get spread out over time. For example, if you have a $600 wage loss, you are entitled to 2/3 of that money per week tax free. So you can get a lump sum settlement or $400 a week. $400 doesn’t sound like a lot, but it’s more than $20,000 a year. If the insurance company is offering you 100k today, that might sound like a good deal. But in almost every situation you can collect your wage difference for a year or however long you want and still settle.
Many insurance companies hold what are called settlement days. Basically they review their files and figure out which ones they can get rid of. A tough talking insurance adjuster might not give you a big offer today, but six months from now, an auditor in their company will look at your case and order someone to try and get rid of it. They know that paying you every week is not a good deal for them when they can get you off their books. So if you think your case is worth 250k, it’s not unusual to be denied for months or years only to one day get a call out of the blue offering to resolve the case.
I once represented a young guy from Downers Grove who was receiving weekly checks of over $500. The insurance company offered $150,000 to make the case go away and we declined. They paid him for almost three years when one day they called and wanted to get rid of the case. They ended up coming within a few thousand of our $300,000 demand, but when you added up the extra money my client got by waiting, he ended up netting well more than the case was worth.
Patience is very important in these cases. We try to get every last penny for our clients. It doesn’t always happen, but we never recommend a settlement that we don’t think is fair. And we would never suggest to a client that they accept an offer that is tens of thousands less than the real value of the case just so we can get paid.
Insurance companies will do whatever they can to cut off your benefits. They may act nice, but if they have a reason to deny you, they will do it, even if they do it with a smile.
Smart business people recognize this and there are many that will tell insurance companies what they want to hear. Usually it’s hack doctors who perform “independent” medical examinations and tell the insurance company that the worker is just fine even though their treating doctor feels they need a surgery.
The newest scam is a company in Chicago that promises to advise insurance companies on ways to defend cases. They say they will look at medical records to suggest questions for depositions and possible defenses to claims. They even have a doctor on staff that does this review to help offer “opinions.”
Of course this company is really just run by two Chicago workers’ compensation defense lawyers and a doctor they have partnered with. I have heard stories of them offering their services and basically using that as a back channel way to get insurance companies to hire their firm. Under the smell test, it certainly seems like a way to get work for a law firm and make money for a doctor.
All this means for you as the worker is that it’s more important than ever to have a lawyer in your corner that will fight for you. If you have a credible treating physician that says your injuries are work related then that should carry the day. If hacks deny your case then you need a lawyer that will fight for you and take your case to trial if need be.
But do know that for any Illinois workers’ compensation claim, insurance companies make money by not spending money and they will do whatever they can to minimize what they pay to you.
The other day I had a pleasant conversation with a woman for an opinion on the settlement she was offered on her case. She had two knee surgeries and was cleared to return to work as a teacher. The problem is that no job was available for her to return to. She had been offered a good settlement (around $60,000), but all she really wanted was here job back. In fact, she told her lawyer that she’d take half the settlement offer if he could get her job back.
The lawyer was dismissive of her request because of course it would mean less money for him. It’s not typical that a settlement is based on getting re-employed and in this case the woman would be better off going through her union rep to try and get re-hired. But I found it sad that her attorney wouldn’t even make the request of the other side for this to happen. In life, you never know what you can get if you don’t ask for it.
When it comes to settling your case, a lawyer can lay out your best, worst and most likely options if you go to trial as well as the high and low range of settlement. In the end, while we can make recommendations, you have to be the one that lives with the result. If your expectations are unrealistic (e.g. you want to get a million dollars) then the lawyer shouldn’t waste their time with demands to the insurance company that would hurt your case. But if you are worried about future medical care or want to make a request for your job, your lawyer owes it to you to at least try and get the result that will satisfy you.
For an attorney, we want to help people, but of course we are also in business and want to make money for ourselves. In most cases that means fighting for the highest settlement possible. But lawyers can never lose sight of the fact that we represent people and we need to look out for what people want to make themselves happy. If we don’t do that then we are just sellouts and not worthy of this job.
A reader asks:
My work comp benefits were just cut off. The insurance company says they have surveillance video of me playing football. It’s not true! Don’t they have to turn that over to us so we can see the video??
The answer is that they do not as there is no discovery in workers’ compensation cases. In plain English that means that you don’t have to share information with them (other than the names of your doctors) and they don’t have to share information with you. While it is customary to show the other attorney surveillance video if you are using it as justification for terminating benefits, it’s not mandatory.
There are some Arbitrators that want video information shared before trial so the workers’ lawyer will have time to prepare for a cross examination, but again, that is not the law. If we know who the surveillance company is, we can try to subpoena those records, but this isn’t usually possible because we almost never know unless we know that an insurance company or law firm uses the same surveillance company over and over.
In these situations we can get the information by simply going to trial. If there’s a reasonable basis for your benefits getting terminated (which means you were being dishonest) we’d lose. Otherwise we’ll win and will likely hammer the insurance company for penalties that punishes their unreasonable behavior.
The reader that contacted me was stressed because his lawyer wasn’t doing anything. His case, like most contested cases in Illinois work comp is actually simple. If you have an attorney that is willing to get a case ready for trial, your problems can be solved. If not, you will suffer even when you did nothing wrong or in this case when it’s a case of mistaken identity.
Attorneys in Illinois can’t call themselves specialists or experts. And if a client walks through the door and asks for help, the lawyer doesn’t have to tell them that they’ve never handled that type of case before or have really limited experience. Most attorneys see dollar signs when a good case is mentioned. So instead of referring a case to another law firm, they try to handle it themselves even when they know it might not be best for the client.
It’s likely obvious to you why you’d want to hire a lawyer that handles Illinois work injuries 100% of their time working as compared to a lawyer that dabbles in it, but also handles divorce, bankruptcy, car accidents and DUI. But there are other not as obvious reasons to hire a firm that’s really focused on work injuries.
The law is constantly changing as a result of Illinois Appellate Court decisions. If you aren’t following these changes closely it could be a disaster for your client. For example, the work comp system has always said that a shoulder injury was classified as an arm injury. When you settle a case, you are given a certain percentage for loss of use of the arm, e.g. 30% loss of the arm. Under Illinois law, if you hurt that arm again, your employer is entitled to a credit for what they’ve already paid you percentage wise. So if the new injury is worth 40% of an arm, they’d only have to pay you 10% in new money. If it was a minor injury, because of the credit they might not owe anything for a settlement.
This all changed in February when the Appellate Court ruled that shoulder injuries should be considered “man as a whole” claims like the back or neck. This is important because insurance companies get no credit for these payments. So if you hurt your shoulder and get a settlement now, if you break your elbow (which is an arm injury), you’ll get the full value of that case when it settles too.
I know that this is probably the most legally mumbo jumbo I’ve been on this blog and if you are confused by what I mean just ask. But the big picture is that when you get a jack of all trades attorney they certainly could do a good job for you, they certainly don’t give you the best shot. And when the law changes, their ignorance could cost you tens of thousands of dollars.
I had a caller the other day who was upset because his Peoria workers’ compensation attorney couldn’t get him the big settlement he was looking for. I’m not a fan of every attorney down there, but this caller had a good one in his corner so I just explained what the lawyer was not.
The caller had a major injury and could not return to work at his old job. He found a new job within his restrictions that was paying him about $500 less per week. Under Illinois law he is entitled to a wage differential payment of about $17,000 per year. He has a life expectancy of around 40 years so in his mind he should be compensated for all of that at once. The present value of that would be around $200,000.
The insurance company has only offered $75,000 to settle the case and otherwise has said they will just make weekly payments of $333.33 which is what they are supposed to do. Nobody, not even the Arbitrator, can make them pay a lump sum settlement. They wouldn’t do it if they thought you were ill and might not survive (once you die the payments stop) or if they think you are desperate to settle for a low number.
In this case, the attorney rightfully told his client not to take the settlement. But just because you don’t get a lump sum today, doesn’t mean you can’t get one in a year or three or whenever. In all of their cases, insurance companies want to close the file if they can. At some point, this file will be audited by an insurance company pencil pusher who wants to know why they are still paying. If they pay a total of $50,000 for the next three years then all of the sudden they look foolish. So at that point they will likely seek to settle the case. And you know what? The full value of the case in 3-5 years will likely be just about the same as it is today.
In other words, if you know your case is worth $200,000 and the insurance company won’t offer that, if three years from now they want to settle, it’s not as if they get a credit for everything they’ve paid you in the last couple of years. There would be no logic to them saying “we’ll now pay $150,000 which is really like $200,000 given that we’ve paid you 50k the last few years.” That would be them rolling the dice and losing.
So the moral of the story is that sometimes you have to be patient. If you aren’t getting the big lump sum that you want right now, go to trial, get a weekly award and just sit tight. In most cases the lump sum will happen at some point. I assure you that getting 75k now is way worse than collecting 50k over the next three years and then getting a big settlement of around 200k. .
A reader asks:
I received a settlement offer on my case and the insurance company only offered the percentage lost and 10 weeks of back pay. I am owed a total of 46. I was wondering if it is a wise decision to go to trial for the back pay.
Like any case, whether or not it’s worth it to go to trial depends on the facts of the case. If this reader was a high wage earner, then they might be leaving $30,000 or more on the table by settling. If they didn’t earn that much, it may only be a couple of thousand, but that too may be worth fighting for.
Beyond that, they may have missed 46 weeks, but we don’t know if their doctor authorized them off of work for that whole time or if the insurance company hack, I mean IME doctor, said that they could return to work. And we don’t know the strength of each of those opinions. I’d also like to know why they never were paid in the first place.
In addition, while he says he was offered a percentage, I’d like to be sure that percentage amount is fair. We also need to analyze if he will need future medical treatment. If he does and the case is otherwise strong, going to trial is probably the right thing to do if he wants to keep his medical rights open.
In the big picture, the answer to this question is one that every Illinois work comp lawyer should do on every case they handle and it can only be answered after a full analysis of the case. What’s right for you might not be the best thing for your neighbor or cousin or co-worker.
Remember that this is your life and you and your attorney need to figure out what’s best for you. Otherwise you very well could be shorting yourself. And once the case is settled and closed, it’s over forever.
Sometimes when you are hurt on the job, you can file your case in more than one state. For example, if you normally work in Boston, but are in Chicago for business and hurt your back lifting your suit case, you could bring your claim in Illinois or Massachusetts.
I’ve looked at the laws and benefits of all 50 states and the honest answer is that none are better than Illinois. Some states laws give the employer the right to choose your doctor. Other states limit your weekly compensation to a few hundred dollars no matter how much you are making. Kansas has a cap on the total compensation you can receive.
I recently received a call from a woman whose husband was killed on the job in Illinois. She hired a law firm in the state where she lived because that is where the company was based and she was told that it had to be done that way. That of course is not true. Unfortunately, the law firm she hired didn’t tell her that she had the option to bring the case to Illinois.
This was all a big deal because apparently in the state where she lives there is a waiting period for death benefits. Her lawyers told her it would be three to five months. That doesn’t happen here. She also was told not to expect too much compensation. In Illinois, however, the death benefit is $500,000 minimum.
This all happened downstate so I referred her to one of the top southern Illinois workers’ compensation attorneys that we know. I haven’t heard if he signed her up or not, but for her sake I sure hope she hires someone competent in Illinois because it really is a much better state for her.
I once represented a man from Kansas who made $100,000 a year. He fell on ice in Chicago and ended up with major back surgery that prevented him from working ever again. He was getting weekly checks of $400+ in KC. As soon as we filed the case in Illinois the benefits went up to over $1,000 a week. Whereas Kansas had a total payment cap (all benefits) of $125,000, he received an $800,000.00 settlement here.
The example I gave is extreme, but it really illustrates the point. As a worker, you should know that if you are hurt in Illinois, have a job that is mainly out of Illinois or if your contract for hire was done while you were in Illinois, you can bring a claim here. And while you may also be able to bring the case somewhere else, you should explore your options.
Here’s some free, helpful advice for anyone who has been injured on the job. If you get hurt, you are supposed to notify your employer within 45 days about the accident (in reality you should do it ASAP). You may also be asked to fill out an accident report and you should do that. When you go to the doctor, they may ask for a history of what happened to you. You should also provide that to them. You have nothing to hide and want the truth to come out.
Even though there is nothing to hide, you should never, ever agree to give a recorded statement about the accident to an insurance adjuster or anyone investing the case. If you have nothing to hide is that hypocritical??? The answer is definitely NO.
Insurance adjusters and their investigators are trained to ask tricky questions in a way that could twist your words around. They are looking for any way to blow a hole in to your claim that will allow them to deny it. They will also ask you personal questions that you are not required to answer about your health background, personal life or anything else that they want whether it’s relevant or not. We’ve seen investigators try to take recorded statements when an injured worker was laid up in a hospital and pumped full of drugs. We’ve seen it done after a worker has been without sleep for more than 24 hours and maybe isn’t in their right mind.
If you give a recorded statement and ever have to go to an arbitration some day to fight for your benefits, the recorded statement can be used against you.
If the insurance adjuster/investigator has questions, they should submit their questions in writing for review by a lawyer before they are answered. Some of those questions will be answered and some of them won’t. There is no law that says you have to give a statement and if you don’t, they should not be able to cut off your benefits.
I’m all about being honest and straight forward and we won’t represent clients that aren’t the same way. But don’t assume that the people that you are dealing with are as good intentioned as you are. If you do, you may be the one that suffers.
Every once in a while, we post a re-cap of the benefits you’re entitled to if you’re injured on the job in Illinois. The laws changed recently, so here is an updated overview:
Medical: Your medical bills should be covered 100% for an injury that arose out of and in the course of your employment. So anything that happens while working or doing something related to working should be covered. Illinois law changed recently and now allows employers to set up preferred provider networks (PPOs). This limits your choice of doctors more than before. Disputes often arise over medical care. It has to be relevant and necessary, and the insurance company might argue that you are asking for something (therapy, surgery) that is not necessary. If you can’t negotiate a solution, you can request a hearing.
Lost wages: If you are unable to work because of your injury, you are entitled to 2/3 of your average weekly wage; this is called TTD (temporary total disability). If you are able to do some work, but it pays less, you get 2/3 of the difference in wages; this is called wage differential. A worker can only receive wage differential benefits for five years or until they turn 67, whichever is later.
Permanent disability: If your injury is permanent, which you won’t know right away (or at least it won’t be agreed upon right away), you should get a settlement. Usually this is a lump sum paid to you by the insurance company. In exchange, they usually have you waive future medical benefits. This means that if your injury acts up years later, you can’t go back to them to pay for treatment. It’s all negotiable, and in some cases medical benefits are left open. There also are benefits available for scarring caused by an injury or illness.
There are other ancillary benefits, such as vocational rehabilitation, which helps you train and find another job if your injury prevents you from returning to your previous job or career. Note that in a work injury case, pain and suffering is not available, as it is in other types of injury cases. In cases where death results, benefits are available for the surviving spouse or minor children.
If someone from the insurance company tells you that you are not eligible for benefits or that your medical treatment is not necessary, don’t assume they are right. Their job is to save the insurance company money, not give it to you. In an ideal situation, your attorney should be the one talking with the insurance company. Insurance companies are known for taking advantage of unrepresented claimants.
Injuries that take place while doing your job duties generally fall within the coverage for Illinois workers’ compensation benefits. The workers’ compensation system is set up to provide both the worker and the employer some benefits and some trade-offs in compensating injured workers.
The benefits for the employer, is that there will not be any lawsuit for negligence in civil court. Workers’ compensation insurance will cover the cost of the injury. For the worker, getting benefits to pay for your medical treatments and other losses for your injury is much more simplified and certain. You do not have to prove that your employer did something wrong in order to get paid, but in a negligence case in civil court you do.
The trade-off for the worker, though, is that the workers’ compensation benefits are the exclusive remedy against your employer for work-related injuries. Whatever is available in benefits from the workers’ compensation system is what you get. Of course, is you have a good case, and an experienced attorney pursuing your case, then you could do well in recovering what you have lost from your injury. Though you are limited in not being able to bring another case, you are benefitting from not having to prove fault against your employer.
Nonetheless, employees will try to find cracks in the system, and see if there is a way to bring another case. Recently, a worker tried unsuccessfully to claim that the employer’s filing technicality meant that the workers’ compensation remedies did not bar another claim for negligence. But instead, the spirit of the workers’ compensation system was upheld. Where the employer is properly insured, the company has the right to dismiss an action for negligence, and that is what happened in this case.
This relationship only exists, though, between the worker and employer. If there was another person or company that had some part in your accident or injury, then there may be a third-party case. You may have a case against a company for a defective product, or against another driver of a vehicle in an accident. Exploring these options may produce another source for recovery from your injuries that is larger than what workers’ compensation pays. Time limits for filing a lawsuit may be different, so you want to be careful not to miss out.
But when it comes to your employer’s responsibility for a work accident, workers’ compensation stands in the place of having to show that the work injury was the fault of your employer and having to go to trial on those issues.
Temporary Total Disability benefits (TTD) may be available during your recovery from a work injury. If your physician places restrictions on your ability to work during your recovery, and your employer cannot find work for you that fits those restrictions, then you be compensated for this loss.
Your employer’s part in this process, is to find and offer you work that you are medically able to do within your restrictions. But your responsibility is to cooperate with treatment, and with the job offers you are able to accept. If your job duties involve lifting and twisting, and you have injured your back, your physician may restrict the amount of weight you can lift, or certain movements you can do. If your employer offers you work that can accommodate those medical restrictions, you risk losing some or all of your TTD benefits if you refuse to take the job.
That is why it is important to be completely honest with the physicians about any pain or problems you are experiencing. If your medical restrictions do not cover your full limitations, then you could end up choosing between performing job duties that you cannot or should not do, and losing your benefits for not working the job.
One worker in a recent case in Illinois took a light-duty job offer from his employer, only to find that he could not physically handle the work. Later, he was again offered work within his restrictions, but he felt he could not drive because of his medications. He received more medical treatment and a period off of work, and then was ready to try again.
But this time his employer did not want to offer him any more work, because of his past refusal, and wanted to cut off his TTD benefits. Ultimately, the worker’s history with how he had handled his situation justified suspending his benefits for a period of time but not cutting them completely. It was determined that since he had refused offers that were appropriate for his restrictions at the time, he should lose some benefits, but since he had later made himself available to work, then he should not lose all.
But possibly, if he had worked with his physician when he realized that he could not physically handle the work even with the restrictions, then he would not have lost out on any benefits. If you know that you cannot work as you are being expected to according to your restrictions, then it is in your best interest to have your treating doctor back that up.
You could be justified in not being able to work certain job duties, but for the purposes of your workers’ compensation benefits, there is a difference between refusing to work, and being medically restricted from working.
If this is confusing let us know. We are happy to consult with anyone, any time.
A client called with a question about his average weekly wage (AWW). He is a travelling salesperson, and receives commission payments for his sales. In addition, he is given a car allowance, because he uses his own car and gas on the job, and not a company car. What he wanted to know, was whether this car allowance should be included in figuring his average weekly wage for temporary total disability benefits.
The answer to this question depends largely on how the car allowance is set up with the employer. The AWW includes any value you receive for your work. So if the amount you receive is reimbursement for your actual expenses, then likely it would not be part of your AWW. On the other hand, if the payment seems to give you some financial gain other than just repaying what your expenses are, then you might be able to include the extra portion in your calculation.
The same holds true for other expense payments you may receive from your employer, such as reimbursements for meals, gas, hotel, or other travel expenses. If you are being paid back the amount you put out, then that money is not in the plus column for you, so it would not likely be part of your AWW. Even though you are not getting paid that money while you are off of work recovering, you also are not putting out that money to travel, so you have not lost anything.
Sometimes, though, travel expenses are paid in other ways, like a flat per diem, or percentage payment. The amount paid is not necessarily tied to your actual expenses, and you may be receiving more than you are really paying out. In these cases, the travel expenses might be looked at as a financial gain to you. So the amount that you are paid above and beyond what your actual expenses are, could be considered part of your AWW.
Other facts about how your travel expenses are set up could also be relevant to answering this question. For example, if you are paid a flat amount or a percentage of your salary as expenses, and you continue to receive these payments during a vacation period, it is more likely that they are not just reimbursements for your travel costs, and could be part of your AWW.
All of this is important because the higher your AWW, the more you get paid for the time you miss from work and the higher your settlement will be at the end of the case. It’s about what is fair to you so you are properly compensated.
Each situation is different, and can vary based on the arrangement that you might have with your employer. And what the payments are labeled as does not necessarily determine how they may be treated for workers’ compensation purposes. We would be happy to review your specific situation, and discuss this or any other questions with you.
We are workers' compensation attorneys that help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.
The battle for workers’ compensation “reform” in Illinois was touted as necessary to help employers, by cutting down their costs in covering the injuries of their workers. Some significant changes were ultimately put in place—changes which are potentially harmful to workers, but were supposed to help the bottom line of businesses by reducing the costs of paying for workers’ compensation insurance.
The Workers’ Compensation Act amendments included, among other things, a reduction by 30% of the fees that would be paid to medical providers; more rigid standards for getting paid for some injuries; and decreases and caps on some types of benefits. These changes to the law were fought for by employers and insurance companies, and passed at the expense of injured workers’ rights and financial benefits.
But now, with the new legislation in place, you would likely expect to have seen employers beginning to reap the rewards of their supposed cost savings. Instead, however, they are about to discover that they may have won the battle, but the war remains to be determined. The reason for this, is that the insurance companies, after all the “reform” measures have been put in place, may be raising the rates on workers’ compensation insurance costs anyway.
It is a puzzling situation, that costs could possibly be raised at this point in time. The insurance companies have not even had a chance to meaningfully experience the results of the changes in the law, and assess what the actual financial impact will be. It was expected that after these measures were put in place, there would be less to payout in claims: there would be less money paid per claim in the fee schedule reduction and other limitations on benefits, and less claims made overall because of other new restrictions.
Yet the insurers do not appear to be ready to pass that savings on to help Illinois businesses by lowering their insurance rates. They are not necessarily willing to concede that they will see actual cost savings as a result of the changes, so they instead are going ahead with a plan to raise workers’ compensation insurance rates for businesses.
The Illinois workers’ compensation “reform” does not seem likely to have the desired effect of help Illinois employers, and helping to keep jobs in the state. Illinois has lost a large chunk of manufacturing jobs over the last decade, for example, and this new legislation is not likely to have an impact to help turn that trend around. All the talk of the changes being pro-business and anti-worker…it seems that in the end they may be just pro-insurance at everyone else’s expense.
We are workers' compensation attorneys that help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.
When you’re hired for a job, your employer hires your whole self—warts and all. So if you’re injured on the job, you should be able to receive workers’ compensation benefits to cover you, even if your prior medical conditions played a role in your current medical condition.
In one Illinois case, a teacher severely injured her knee at work while she was performing her job duties. The accident required medical care and lost time at work. What made this case more complicated, was the teacher’s medical history. She had other medical conditions, which included surgery, and she had been taking blood-thinning medication.
For these reasons, the issue was raised whether or not workers’ compensation benefits should be available to cover the recent accident involving her knee. Perhaps she would not have been so badly injured by this accident, had she not had the other medical factors coming into play as well.
But under Illinois workers’ compensation law, if your work injury was a cause of your current medical condition, then you should be covered and entitled to receive benefits to compensate you for your loss. The fact that you may have been in a weakened condition, or otherwise more prone to injury, should not cut off your right to benefits.
The significant question to answer, is whether your work accident made your medical condition worse, or made it degenerate faster than it would have otherwise. If the answer to this is yes, then likely your current condition is covered. If, though, your injury is just the result of the typical process your medical issues would ordinarily take, separate and apart from the recent accident, then you’re not likely to be entitled to workers’ compensation benefits.
For the teacher and her knee injury, she had several factors that may have contributed to the treatment she needed for her injury. But after the accident she did have a significant increase in pain and swelling, and there was no other explanation for that other than the work accident. For this reason, it was covered under workers’ compensation.
Employees are not expected to be in perfect health and fitness. Each has his or her own conditions and limitations that are unique to the individual. The workers’ compensation system was designed with this in mind, and therefore it does not necessarily penalize workers for prior injuries or conditions which may have made the current situation worse.
There are deadlines in Illinois workers’ compensation cases that can prevent you from getting benefits you may be entitled to, if you miss the time period. First, you are required to notify your boss of your injury within 45 days. And second, there is a statute of limitations, which is the time period that you have for bringing a claim regarding your injury and benefits. Missing these deadlines may mean missing your chance to receive benefits for your injury.
If you work in a warehouse and a box fell on your back and injured you, then your deadlines are easy to figure out. You can count the days from the date the box fell. But if you injure your back day by day lifting boxes, then the date of your injury becomes much more blurry, and more difficult to be sure you don’t miss your chance to bring your claim.
The safest course is not to wait, and to notify your employer as soon as you think your job may have caused your developing injury. You’ll want to see a doctor right away, and be sure to explain all of the facts of your situation: what type of pain or sensations you are feeling, and when you first noticed it; what types of situations cause you to feel pain; what your job duties entail; and what other activities your are involved in. Your medical records can help you to prove your workers’ compensation case, and of course, can help you get the necessary medical treatment.
Sometimes, though, you are not aware that the discomfort you are feeling is something that needs medical attention; or you might not associate the pain that has been escalating, with your job duties. By the time you look back and realize that your repetitive movements at work have slowly hurt some part of your body, it may seem too late to do anything about it.
But for these types of repetitive trauma injuries, the clock should not start to count down on your notice and filing deadlines until the time that it should be fairly clear that you are injured and it was related to work. You don’t have to stop working the minute you experience some pain, nor do you have to keep working until your body gives out, just so there would be a definite date of your injury. The date can instead be pinned to the time when a reasonable employee would discover that that he or she is injured, and it was related to the job. At that time, your periods of giving notice and bringing a claim would start to run.
Being aware of your body and the stress that it is under can benefit you in the long run—both in getting your medical treatment sooner to ensure a better recovery, and in starting a timely process to getting workers’ compensation benefits to pay for your recovery.
We have helped injured pro athletes in just about every sport. Many of these athletes played for out of state teams, but got injured while in Illinois. They are treated like any other worker when it comes to workers’ compensation laws although their contracts typically entitle them to a higher wage than most if they are injured during the season.
But if an athlete is injured, has their contract end and still is not cleared to return to their former job, they can get TTD benefits just like anyone else. The catch is that if you were making $100,000 a week before you got injured, you’d go on TTD when your contract is out. So if Brian Ulracher blows out his back on Sunday, then he will get $1,261.41 a week when his contract ends. Over one year that is $60,000+, tax free. To Urlacher it probably wouldn’t mean much, but to a younger player who never made “that” much it could be a life saver.
Recently I’ve been contacted by two athletes who were injured 8-10 years ago. Neither of them filed a claim and they wanted to know if it was too late and if it wasn’t, what it was worth. I can tell you unfortunately it was too late for both of them as neither had medical bills related to the injury paid in the last two years (so the time limit to file was blown), but if they did have a case it would be based on what they were making when they got hurt, not when they filed.
A lawyer friend of mine was contacted by a WNBA player who only makes around $40,000 for the season that runs 15 weeks from June until September. The insurance company was arguing that the average weekly wage is around $800 because that is what she makes for an entire year. It works in the same way for teachers. I disagree and think the average weekly wage is closer to $2,700.00 because it’s a seasonal job (wages divided by weeks worked). Unlike someone in the NFL or NBA, the difference for this woman or a soccer player or other lesser paying sport is huge. If the wage is what I think it should be, her weekly benefits are much great and her case is worth much more, especially if it’s a career ending injury.
Overall, athletes are no different than garbage men, secretaries, salesmen, flight attendants or anyone else that we proudly help. The law is all the same, you just need someone in your corner to make sure that the law is followed.
We are workers' compensation attorneys that help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.
There have been a lot of grumblings about the changes to the Illinois Workers’ Compensation Act that went in to place on September 1st. We still don’t know the total impact of these changes, but many people aren’t happy.
I happen to know workers’ compensation lawyers in almost every state and have talked to a lot of them recently about the changes in the laws. They still consider Illinois to be a dream. Consider the problems you’d have if your case was in:
Tennessee: My contact there says that if you injure your back and don’t have surgery, your case has no value.
Texas: Employers don’t have to carry workers’ compensation insurance.
Minnesota, Wisconsin, Pennsylvania: Lawyers only get involved if the case is denied. So if you need questions answered or are getting jerked around a bit, it’s hard to get help.
Florida: My friend there, who used to work in Illinois, says that to get a settlement you usually have to quit your job.
Kansas: Total benefits for a case can not exceed $125,000.00. So if you have a major, long term injury you are out of luck.
Alabama: The weekly maximum benefits for time off work are a little over $200. In Illinois it’s over $1,200.
Indiana: I have yet to find a lawyer in our neighboring state who will represent an injured worker. If you know of one please pass their name on.
North Carolina: The attorneys I know there will only take on a case if they think it’s worth at least $25,000 because of the work involved in winning a claim.
New York & Oregon: The benefits aren’t bad, but the cases usually aren’t worth much unless you have a catastrophic injury. Many cases are worth zero dollars.
New Mexico, the Dakotas, Idaho, Louisiana, Alaska, Ohio, Hawaii, Mississippi, Kentucky: I haven’t found a lawyer in these states that only handles work comp cases.
Georgia & New Jersey: Two good states for injured workers, but the benefits are much lower that IL.
Iowa: If you don’t have an injury to your neck, back or shoulders or an injury that causes a career change, you’ll have an impossible time finding a lawyer.
So things are not perfect for injured workers in Illinois. But they could be much worse. As a FYI, if you are injured in Illinois, hired in Illinois or your employment is principally located out of Illinois, you can bring a claim here. So if you can avoid a crummy state, you should.
Not every work injury, or every workers’ compensation case, involves vocational rehabilitation benefits. These may come into play after you have had your maximum medical recovery, and you are still unable to return to your old job. If your employer cannot accommodate your new work restrictions, then you may be a candidate for vocational rehabilitation services.
These services help to identify and develop your skills to so you may regain employment. It may involve targeting your talents to come up with options for employment, job training in other areas, education, resume writing, and job searches. But for a successful rehabilitation program, and for the payment for it to continue, the employee must cooperate fully.
In a recent case, an Illinois worker was denied benefits for vocational rehabilitation, because his job search efforts were insufficient. The records of his actions did not contain any facts supporting the award of benefits for a rehabilitation program. There was no indication of what positions he had applied for, who he had contacted, or whether the jobs fit within his physical limitation. There was no support in his record for paying him benefits for vocational rehabilitation.
Similarly, in another case, a worker had his benefits terminated, because he did not cooperate with the rehabilitation plan. During the period of his rehabilitative counseling, he did not follow through with what he was told to do. Namely, he did not get his GED, he did not research job interests, he missed an interview, and he also did not dress properly for an interview. Because of the lack of cooperation with his plan, he lost his benefits.
Not only is it important to fully cooperate with your vocational rehabilitation plan, but you should also be prepared to prove what actions you have taken. If you have been awarded vocational rehabilitation benefits, you should keep a careful record of all of your efforts. The details that you document can help you later if the insurance company tries to claim you failed to cooperate, and terminates your benefits. As long as you cooperate, they should not stop paying. But if there is a disagreement as to whether you are fulfilling your obligations, you will need to be able to show evidence detailing what you have done. Even if you have not been successful in getting a job, you will want to be able to show as many specifics as possible about how you followed the plan, including the jobs you have applied for and been rejected from.
September 1, 2011 arrived, and along with it came the effective date of the changes to the Illinois Workers’ Compensation laws. Work injuries that happened on that date and beyond will be treated according to the new rules. Some of the changes are somewhat significant, some might not amount to much after all is said and done. But as lawyers are getting their feet wet in handling cases under the new law, perhaps the most significant aspect of the change, is the newness itself.
What I mean by this, is that along with the changes in the law, comes a period of relative uncertainty. Lawyers cannot be completely sure how their clients’ injuries will be valued by the Arbitrators hearing workers’ compensation cases. Under the new law, the American Medical Association (AMA) guidelines will factor in to determine the level of disability, along with other objective criteria. These new standards may affect how Arbitrators view what cases are worth--they may be lowered; though likely there will not be a significant shift in case values. Already though, we have seen insurance companies trying to go for the jugular and lower the value of what we think the case is worth.
But regardless of the eventual outcome, right now lawyers are hard at work fighting for those new cases, trying to establish that they have not declined in what they are worth. And insurance companies are certainly pushing for trials too as is there right. While maximum effort is going into testing the new system, clients--particularly those with older cases--might be the ones to suffer if they have the wrong attorney.
Whether or not a case goes to trial or settles, should always be a decision made with regard to the client’s best interest. But there is only so much time for cases going to trial. And a lot of lawyers don’t particularly care for the amount of time and work that goes into the trial process anyway, given the relatively small difference in money for them. What you’re left with, then, is a lot of new cases being given maximum effort, and not necessarily settling, while older cases are being settled rather than taking the time to go to trial even if that would have been most desirable.
Now, I’m not saying that all or even most lawyers are lazy, and don’t protect their clients’ best interest. Most are honest and hard-working. But among those that are older and feeling burned out, particularly by the prospect of the changes in the law and how they affect the new cases, it can seem attractive to reach a settlement in a pre-September 2011 case that isn’t necessarily in the best interests of the client.
I thought of this post after a recent phone call where it appeared the value of a case was around $50,000 on the low end and $300,000 on the high end if the client was proven to have a wage loss from his injury. The attorney he had hired was telling him to take $100,000 because that was the most that the defendant would ever offer.
If the most an insurance company will offer appears to be way too low, you have an option which is to go to trial. A case like this would require multiple depositions and preparation, plus all day in court for a hearing with an Arbitrator. That’s lots of work, but the payoff at the end if you win would be huge for both the attorney and the client. It’s possible the client would end up with only 50k and they should know the risks. But to roll over when with a little hard work you can do so much better for a client is shameful.
Now of course it’s not just the new laws that are making some attorneys lazy. But they aren’t helping and it’s innocent clients who suffer.
The Illinois Workers’ Compensation system is designed to provide benefits to workers that were injured in work-related accidents. The system is set up to compensate for injuries in a more streamlined and predictable way, than a typical lawsuit for personal injuries. Here are some of the major differences between the two.
1. You do not have to prove your employer was at fault to be compensated.
Unlike a traditional lawsuit, the workers’ compensation system does not rely on proving that one side was at fault in hurting the other. Workers’ compensation claimants are seeking to be paid for what they have lost from their work-related injury. As long as you were an employee of the company and suffered a work-related injury, benefits should be available. The trade-off is, though, that employees cannot sue their employer in court to recover other money damages for their injuries. The workers’ compensation benefits may be more limited, but the process is more simplified and payment is more certain to get.
2. Workers’ compensation cases are not decided by juries.
Disputes in workers’ compensation cases are not brought before judges and juries like they are in a traditional civil trial. The Illinois Workers’ Compensation Commission is the agency that handles these matters, and assigns an Arbitrator to your case when you file. Arbitrators are located at various hearing sites around the state, and they are the judges that hear and decide your case. Because there are no juries, personal biases do not enter into the decisions, and therefore there is generally more consistency from one area of the state to another in terms of money awarded.
3. The time limits for claims are different in workers’ compensation cases.
Workers’ compensation cases in Illinois have certain cut-offs for claims. First, your employer needs to be notified within 45 days of your injury. Second, the deadline, or statute of limitations period, for filing your claim with the Illinois Workers’ Compensation Commission is no later than three years from the date of your injury. While these dates may seem clear-cut, sometimes they can be more complicated. For example, if you have an injury that develops over a period of time, it may be unclear when the injury began, or when you would have had a reason to know it was related to your job. There are special rules for those situations, to figure out when the relevant dates would be. They are important, though, because you don’t want to lose your right to benefits because you missed a deadline
4. You cannot get paid for your pain and suffering.
In cases where you sue for negligence, you may be able to recover money to compensate you for your pain and suffering. However in workers’ compensation cases, this is not available. The workers’ compensation system is geared towards helping you efficiently cover your medical expenses, lost wages, and harm caused to your body. It does not, though, cover the aspect of your injury that reflects the personal trauma to you in terms of your physical and emotional pain and suffering. If a third party other than your employer was responsible, then an additional lawsuit for negligence may be a possibility.
5. Attorneys’ fees are set out by law.
Workers’ compensation cases are handled on a contingency fee basis, which means that the lawyer only gets paid a percentage of what is recovered for you. Typically, in other injury cases, the lawyer’s portion would be 1/3 of what you are paid, but they could be higher or lower. In workers’ compensation cases, the law says that the fee is usually 20%. Sometimes, there is no fee, even where you have been helped by a lawyer to get benefits, where there is essentially no dispute to resolve.
If you are hurt while traveling for work, you may receive benefits under the state's workers' compensation law, which includes compensation for medical expenses as well as lost wages and other costs. Travel can mean driving from the office to a client site 15 minutes away or flying to another state for business. Your daily commute, however, is viewed as an activity outside of work. If you are injured on your way to or from work, you will likely not be entitled to workers' compensation benefits.
The criteria for receiving workers' compensation is based on whether your travel was for the benefit of your employer and therefore considered work related. If you are injured on the way to a client site or business meeting or while you are there, you should qualify for Illinois workers' compensation benefits. If you are injured while running errands for your boss, you may be entitled to workers' compensation benefits because the errands were for the benefit of your employer. Other examples of when you may qualify would be if you were transporting work materials in your car or if you can show that you were being paid for the travel time to and from work.
You may also be covered even if you aren't actually working when you get hurt. The criteria there is whether it's 'reasonably foreseeable' that you would be doing what you were doing at the time you were injured. For example, if you slip and fall while leaving your hotel to go out for dinner with a client while on a business trip, you should be covered. Of course, if you become intoxicated at dinner and are injured as a result, you will likely not be covered.
There are examples where injuries sustained during recreational activities on a business trip actually still qualify for benefits. One well known example is that of an employee in Hawaii on business who was hurt while riding a bike in a volcano during his free time. He was entitled to workers' compensation benefits because it was considered reasonably foreseeable that one would do some sight-seeing on off hours on a business trip in Hawaii.
What is considered a work-related activity or what is considered reasonably foreseeable is not always obvious. Therefore, it is strongly recommended that you consult with an experienced workers' compensation attorney. An attorney who has experience in this field can ensure that you get the benefits to which you're entitled.
Ok, it was breaking on Friday, but Governor Quinn gor ried of nine sitting Arbitrators (including some that were trying cases last week) and appointed a bunch more. Some have one year terms, others have up to three years. My prediction is that this is going to make cases be cluttered and confused. A lot of these changes took place because some downstate Arbitrators were becoming too cozy with local lawyers. So instead of just getting rid of them, they came up with a crazy system that will give injured workers less time in front of an Arbitrator and will cause an Arbitrator that lives in Chicago to handle cases five hours from where they live. But we have to live with this system and live with it we will. Here are the new and continuing Arbitrators.
Governor Quinn has appointed:
Peter Akemann of Kane County has more than 10 years of experience in State government and has been with the Illinois Workers’ Compensation Commission since 1994. Previously Mr. Akemann worked as a regional claims manager for the Illinois Department of Transportation, is the President of the Children’s Theatre of Elgin / Fox Valley Theatre Co., and has been an active member of community organizations such as the YMCA and the Youth Leadership Academy. He holds a master’s of education from Northern Illinois University, an M.A. from Northwestern University, and a B.S. from Brigham Young University. Mr. Akemann has been appointed to a 1-year term as an arbitrator.
George Andros of Cook County has more than 30 years of experience practicing law and has been with the Illinois Workers’ Compensation Commission since 2005. Mr. Andros holds a J.D. from DePaul University and a B.S. in Management from Northern Illinois University. Previously he was an instructor in real estate law at South Suburban and Moraine Valley Colleges, a senior member of the City of Palos Hills Planning and Zoning Commission, a speaker at the University of Chicago Center for Continuing Education on Medical-legal issues and a speaker for the Illinois Institute of Continuing Legal Education. Mr. Andros has been appointed to a 1-year term as an arbitrator.
Milton Black of Lake County has more than 30 years of experience in civil litigation with an emphasis on workers’ compensation, negligence and wrongful death. Mr. Black has been with the Illinois Workers’ Compensation Commission since 2004, while serving on the Board of Directors of the Workplace Injury Litigation Group, the American Bar Association Employer Liability Section and Trial and Insurance Practice Section. He holds a J.D. from DePaul University. Mr. Black has been a lecturer at numerous workplace injury and workers’ compensation seminars and was appointed to the Select Committee of Judges and Lawyers by the Illinois Supreme Court. Mr. Black has been appointed to a 3-year term as an arbitrator.
Kurt Carlson of Cook County has more than 15 years of experience as a workers’ compensation attorney, and has been an arbitrator with the Illinois Workers’ Compensation Commission since 2004. Previously he represented both employers and injured workers at the Macey, Chern and Diab, Teplitz & Bell, and Power & Cronin law firms. Mr. Carlson also served in the U.S. Army Medical Corp before obtaining his B.A. from the University of Wisconsin and a J.D. from the John Marshall Law School in Chicago. Mr. Carlson has been appointed to a 2-year term as an arbitrator.
Brian Cronin of Cook County has more than 20 years of experience in the finance and business, and has been an arbitrator at the Illinois Workers’ Compensation Commission since 1996. Previously Mr. Cronin was an independent and head trader, broker, trading floor manager and an options specialist for several firms, including the Chicago Board of Trade, Barclays Bank, and O’Connell & Piper Associates. He holds an MBA in Finance and Business Policy from the University of Chicago, and an MBA in Management and Finance from the University of Notre Dame. Mr. Cronin has been appointed to a 2-year term as an arbitrator.
Carolyn Doherty of DuPage County has more than 20 years of experience in workers’ compensation, insurance law, and has served as an attorney with the Illinois Workers’ Compensation Commission since 1998. Ms. Doherty also serves as an Arbitrator in Cook and DuPage County Mandatory Arbitration systems on a rotational basis. She holds a J.D. from the John Marshall Law School and a B.A. from Marquette University, and previously worked as an associate at the Sedgwick, Detert, Moran and Arnold, Hanson & Peters, and Schoen & Smith law firms. Ms. Doherty has been appointed to a 2-year term as an arbitrator.
Greg Dollison of Cook County has more than 20 years of experience with the Workers’ Compensation Commission as a review coordinator, and has moderated negotiations between employers and union representatives. He has served as an arbitrator for the IWCC since 2004. Mr. Dollison has B.S. in City and Regional Planning from the Illinois Institute of Technology and attended Roosevelt University. Mr. Dollison has been appointed to a 2-year term as an arbitrator.
Anthony Erbacci of Cook County has more than 25 years of extensive experience in State government and insurance and labor law. He has served as a staff attorney at the Illinois Workers’ Compensation Commission since 1996 and has been an arbitrator since 1997. Previously Mr. Erbacci served as the Deputy General Counsel of Office of the Special Deputy Receiver, Inc., as Deputy Director of Statewide Enforcement and Chief of Medical Prosecutions at the Illinois Department of Professional Regulation, and as Counsel for the Illinois Department of Labor. He received a J.D. from the John Marshall Law School and a B.A. from DePaul University. Mr. Erbacci has been appointed to a 3-year term as an arbitrator.
Robert Falcioni of Will County has served as a staff attorney and as Acting Commissioner at the Illinois Industrial Commission (Illinois Workers’ Compensation Commission), and has been an arbitrator since 1997. He has more than 20 years of law experience is an adjunct faculty member and instructor of the paralegal program at South Suburban College. Previously Mr. Falcioni was managing partner at Falcioni and Britt, after serving as an attorney at the Charles R. Stone, Hyatt Legal Services and Zalutsky, Pinski and DiGiacamo law firms. He holds a J.D. from Chicago-Kent School of Law at the Illinois Institute of Technology and a B.S. from Illinois State University. Mr. Falcioni has been appointed to a 3-year term as an arbitrator.
Barbara Flores of Cook County brings more than five years of law experience as Corporate Counsel of Alden Management Services, previously in the Labor and Employment law department at the U.S. Postal Service, and as an Assistant Attorney General in the Labor and Employment Unit at the Office of the Attorney General. Ms. Flores also previously worked at the firm Rock, Fusco and Garvey and at the AIDS Legal Council of Chicago. She holds a J.D. from Chicago-Kent School of Law at the Illinois Institute of Technology, and a B.S. from the University of Illinois. Ms. Flores has been appointed to a 2-year term as an arbitrator.
Joann Fratianni-Atsaves of Lake County has more than 30 years of workers’ compensation law experience, having served as a Commissioner (Public Member) for three years and as an arbitrator with the Illinois Workers’ Compensation Commission since 1993. She previously has worked at the Anthony V. Fanone and Osterkamp, Jackson and Hollywood law firms, is a Fellow of the Illinois Bar Foundation, current assembly member of the Illinois State Bar Association, and a member of the Lake County Bar Association Board of Directors. She received J.D. from Northern Illinois University and a B.A. from the University of Illinois. Ms. Fratianni-Atsaves has been appointed to a 3-year term as an arbitrator.
Gerald Granada of Cook County has 17 years of experience of workers’ compensation law, and is currently an Associate Attorney at Ancel, Glink, Diamond, Bush, DiCianni & Rolek. Previously, he worked as a civil trial and workers’ compensation defense attorney at Meachum, Spahr, Cozzi, Postel, Zenz & Matyas, and as an associate attorney at Cullen, Haskins, Nicholson & Menchetti. Mr. Granada has been appointed to a 1- year term as an arbitrator.
Douglas Holland of LaSalle County has more than 20 years of experience with the Illinois Workers’ Compensation Commission. Mr. Holland has served as an arbitrator with the Commission since 1989, and prior to that served for three years as a Commissioner. He is a farmer and entrepreneur, and holds a B.A. from Sangamon State University, and attended Illinois Valley Community College. Mr. Holland has been appointed to a 1-year term as an arbitrator.
Gerald Jutila of Cook County brings more than 30 years of experience representing injured or deceased workers and their families. He has served as Acting Chairman of the Illinois Workers’ Compensation Commission, and has been an arbitrator since 2004. Previously he was an attorney at May, Decker and Associates, managing partner at Collins, Jutila and Shovlain, and counsel at Gibson and Kopsick. Mr. Jutila is a Life Fellow of the Illinois State Bar Association since 1996 and has been a member of numerous professional law associations. He was honorably discharged from the U.S. Air Force Security Service, where he served as Staff Sergeant and Intelligence Analyst. Mr. Jutila has been appointed to a 1-year term as an arbitrator.
David Kane of Cook County has 30 years of overall workers’ compensation law experience as a staff attorney and a former Acting Commissioner of the Illinois Industrial Commission (Illinois Workers’ Compensation Commission). He has been an arbitrator since 1990. He holds a J.D. from DePaul University and a B.A. from Northwestern University. Mr. Kane has been appointed to a 3-year term as an arbitrator.
Svetlana Kelmanson of Cook County brings eight years of law experience, having served as a staff attorney at the Illinois Workers’ Compensation Commission, and as a law clerk at the Appellate Court of Illinois First District. Ms. Kelmanson also worked at the Law Offices of Chicago-Kent College of Law’s Low-Income Taxpayer Clinic and the Employment Discrimination / Civil Rights Clinic, and at the law firm Sachnoff & Weaver. She holds J.D. with high honors from Chicago-Kent College at the Illinois Institute of Technology and a B.S. from the University of Illinois. Ms. Kelmanson has been appointed to a 3-year term as an arbitrator.
Jacqueline Kinnaman of Cook County has served as a Commissioner of the Illinois Industrial Commission (Illinois Workers’ Compensation Commission) for more than 10 years, and has been an arbitrator since 2004. Ms. Kinnaman previously represented public employees as an attorney for the American Federation of State, County and Municipal Employees (AFSCME) Council 31, and as General Counsel of the West Virginia Education Association. She attended the University of Wisconsin Law School, during which she also worked in the legal counsel office of Governor Schreiber. Ms. Kinnaman has been appointed to a 1-year term as an arbitrator.
Edward Lee of DuPage County has more than 30 years of overall workers’ compensation law experience. He served as a U.S. Army Armor Officer, representing soldiers or the Army in court martial cases. Mr. Lee worked in private practice specializing in workers’ compensation law, representing both respondents and petitioners. He has been an arbitrator at the Illinois Workers’ Compensation Commission since 1997, and in 2004 served on the Review Board dealing with disciplinary issues concerning Arbitrators and Commissioners. He holds a law degree from John Marshall Law School and attended Tulane University for his undergraduate studies. Mr. Lee has been appointed to a 2-year term as an arbitrator.
Joshua Luskin of Cook County has 15 years of law experience and is currently a partner at the law firm Nyhan, Bambrick, Kinzie & Lowry, specializing in workers’ compensation. Previously, Mr. Luskin has served as an arbitrator with the Cook County Mandatory Arbitration program, a Lieutenant in the U.S. Navy Judge Advocate General’s Corps as a prosecutor, as counsel of the Champaign County State’s Attorney’s Appellate Prosecutor and a Champaign County Assistant State’s Attorney. He holds a J.D. from University of Michigan and a B.A. from Macalester College. Mr. Luskin has been appointed to a 2-year term as an arbitrator.
Molly Mason of Cook County has more than 25 years of workers’ compensation law experience, served as a Commissioner with the Illinois Workers’ Compensation Commission since 2007 and as a staff attorney since 2003. Ms. Mason previously worked at law firms Corti, Freeman & Aleksy, and Burke & Burke, and has published several articles in the Illinois Bar Journal. She holds a J.D. from Loyola University, and a B.A. from Harvard University. Ms. Mason has been appointed to a 2-year term as an arbitrator.
Stephen Mathis of Sangamon County served for 10 years as Legal Counsel and Staff Analyst for the Illinois Senate Staff, and has been an arbitrator with the Illinois Workers’ Compensation Commission since 1996. He holds a J.D. from John Marshall Law School and a B.S from the University of South Florida and has more than 20 years of workers’ compensation law experience. Mr. Mathis has been appointed to a 1-year term as an arbitrator.
Neva Neal Mundstock of Sangamon County has more than 25 years of experience in workers’ compensation and has been an arbitrator at the Illinois Workers’ Compensation Commission since 1981. She has studied Administrative Law and the National Judicial College and holds a B.A. from the University of Illinois at Springfield. Ms. Neal Mundstock has been appointed to a 1-year term as an arbitrator.
Peter O’Malley of DuPage County has more than 20 years of workers’ compensation experience as a staff attorney of the Illinois Workers’ Compensation Commission since 1995 and as an arbitrator since 2003. Previously Mr. O’Malley represented petitioners and respondents in workers’ compensation cases at Kubiesa, Power &Cronin and Bullaro, Carton & Stone. He holds a J.D. from the John Marshall Law School and a B.S. from Marquette University. Mr. O’Malley has been appointed to a 1-year term as an arbitrator.
Maureen Pulia of Cook County brings extensive experience in business, government and workers’ compensation. She has been a staff attorney for Illinois Workers’ Compensation Commission and has been an arbitrator since 2003. Previously, Ms. Pulia was the Director of Access Health, Trustee of the Village of Westchester, and product manager of systems and management at Baxter Healthcare. She holds a J.D. and a B.S. from DePaul University. Ms. Pulia has been appointed to a 1-year term as an arbitrator.
Deborah Simpson of Kane County has more than 25 years of government and law, having served since 2000 in the Office of the Illinois Attorney General’s Administrative Review / Civil Prosecutions Unit. Previously Ms. Simpson was attorney at the State’s Attorney’s Offices for Kane, Vermilion and Cook Counties. She has been a part-time instructor at the Danville Area Community College, and is a member of several community organizations. She holds a J.D. from the John Marshall Law School and a B.A. from DePaul University. Ms. Simpson has been appointed to a 2-year term as an arbitrator.
Lynette Thompson-Smith of Cook County has been Special Assistant Attorney General of the Illinois Industrial Commission Bureau since 1989. Her previous experience includes working as an Associate at the City of Chicago’s Office of the Corporation Counsel prosecuting license violations, as a law clerk at the Circuit Court of Cook County and as a law clerk at the Office of the Cook County Public Defender. She received a Certificate of Completion from the International Workers’ Compensation College of the International Association of Industrial Accident Boards and Commissions at Salve Regina University, Rhode Island and received her Doctorate at Rutgers School of Law in 1983. Ms. Thompson-Smith has been appointed to a 3- year term as an arbitrator.
Jeffrey E. Tobin of Morgan County has been an arbitrator with the with the Illinois Workers’ Compensation Commission since 2004. Mr. Tobin holds a J.D. from T.M. Cooley Law School. Prior to joining the Commission, Mr. Tobin worked at Pratt & Tobin, P.C. from 2000 through August 2002 resolving workers’ compensation claims. In 2002, Mr. Tobin was Partner at Thomson, McNeely & Tobin, P.C. handling workers’ compensation and personal injury claims. Mr. Tobin has been appointed to a 2-year term as an arbitrator.
Ruth White of Sangamon County has been an arbitrator with the Illinois Workers’ Compensation Commission for the last 30 years. Ms. White graduated from the University of Illinois, College of Law in 1973 and started working at the Law Office of Richard Grummon. Ms. White served as special Assistant to the Attorney General from 1976-1978 and joined the Workers’ Compensation Commission (formerly known as the Industrial Commission) in 1979. Ms. White has been appointed to a 1-year term as an arbitrator.
Robert Williams of Cook County has more than 30 years of experience practicing law in government and in the private sector, and has been an arbitrator with the Illinois Workers’ Compensation Commission since 1997. Previously, Mr. Williams has served as Chief of the Chicago Industrial Commission bureau of the Office of the Illinois Attorney General, as legal counsel for the Illinois Office of the Comptroller and as corporate counsel in the City of Chicago’s law department. He also was an associate at Washington, Kennon, Bryant & Hunter, holds an MBA from the University of Illinois, a J.D. from Loyola University, and a B.S. from Le Moyne- Owen College. Mr. Williams has been appointed to a 2-year term as an arbitrator.
If you are injured on the job in DuPage County and you have trouble getting your benefits, you do not file a lawsuit. Instead, you file a claim with the Illinois Workers' Compensation Commission in Wheaton.
The commission has many locations throughout the state. Your claim is assigned to the location closest to the site of the injury. If you suffer a work-related injury in DuPage County, your claim will be assigned to an arbitrator at the DuPage County Government Center in Wheaton, located at 421 N. County Farm Road, 1-500A JTK Bldg. If you are injured out of state, your claim will be assigned to the location closest to your home. So if you are injured in Indiana, but you live in DuPage County, your case will still be assigned to the government center in Wheaton.
You should file a claim with the Commission as soon as possible after an injury. There are strict time limits on notifying your employer and filing claims in these cases. It is important not to miss the deadline because you may lose your only chance to file a claim. The time limit for filing a claim is generally three years from the date of the injury, but be sure to check with an experienced attorney.
Your claim will be assigned to an arbitrator in Wheaton. Once every two months your case will be up for review by the arbitrator. These are called status hearings, where both parties and their attorneys appear before the arbitrator to discuss the status of the case. This process goes on until there is either a settlement or a trial. A trial can be requested by either side during a status hearing.
If the case goes on for too long without progress - generally three years - the arbitrator can dismiss the claim. The arbitrators are very busy, with possibly a thousand cases or more, so it is your responsibility, and your attorney's, to move the case forward and take action when there is a problem.
If the parties reach a settlement, the arbitrator must approve it before it becomes final. If there is a trial, the arbitrator will make a decision within 60 days after the trial ends. The process may take a couple of years. However, emergency hearings are available in certain situations, such as when medical payments or lost time are involved.
The commission is neutral, just like a court, so I recommend hiring an attorney to fight for you. I believe you will get the best results with an attorney who specializes in work injuries, who appears before the DuPage County arbitrators regularly, and who is respected by the insurance companies.
There are attorneys all over the state who take work injury cases. However, the majority of attorneys who specialize exclusively in work injuries are located in Chicago. In fact, if you go to the Workers' Compensation Commission in Wheaton, approximately 90% of the attorneys you will see are not DuPage work injury lawyers, but rather based out of Chicago. This is unlike other areas of law such as divorce and criminal defense.
Lawyer fees in Illinois work injury cases are limited to 20% of what you recover, but that usually excludes recovery for medical bills or your time off of work. That means that you won't pay for travel costs for hiring an attorney to represent you.
Sometimes bad luck can turn to worse luck. You’ve had a work injury and you’re undergoing treatment to try to make a full recovery. In the meantime, you have another accident which is not related to work, and now you’re in more pain than before. Does this second accident disrupt your future workers’ compensation benefits?
In Illinois, you are entitled to workers’ compensation benefits to pay for treatment for all the natural consequences of your work injury. This would even include surgery or other procedures that would be needed in the future. But if there is another, unrelated accident that breaks that chain, your right to benefits could be severed as well.
Winning your argument that your second accident shouldn’t affect your benefits, can often turn on what is in your medical records and the testimony of your doctors. If you can show that you have been consistently receiving treatment for your original injury and have not made a full recovery, the second accident is less likely to affect payment for ongoing and future treatment.
Recently a case like this was decided by the Illinois Workers’ Compensation Commission. A man injured his back at work, lifting heavy objects. He had never had treatment for back pain before his work injury, and after that he had constant back pain. During the time he was trying to recover from his work injury, he had another accident--a fall, which was completely unrelated to his job. He needed back surgery, but the insurance company was disputing the surgery was related to his work injury, arguing instead that his subsequent fall cut off his right to benefits.
But the medical records and testimony in his case helped to show that the work injury was ongoing, and that his back had not fully recovered. He had continued his treatment for his back on a regular basis, ever since he first injured it. He was told by his doctor to stay off of work and had not been released yet at the time of the second accident. Also, there was evidence that even before his fall, the doctor had ordered further tests and was considering back surgery because of his original injury.
Because he could show that the results of his work injury were still ongoing, the fact that another accident contributed to his pain did not do anything to cut off his right to continue benefits. This included benefits for back surgery he could need in the future. His medical records had already established that the surgery might be necessary, even before he had the fall.
It is easy to put off seeing your doctor, and getting all the treatment that you need when you have been injured. After all, if you are in pain, it may not be so easy to get out and go to the doctor. Keeping on top of your treatment, though, is very important for your health, so you can make your best recovery. But it also may be critical for your workers’ compensation benefits. We never know what’s going to happen in life, and you wouldn’t want an unexpected accident to not only cause you more pain, but cause your insurance company to try to stop paying your benefits you are entitled to for your work injury. While we can certainly present your case that your injury is still caused from your work accident, you’ll have a much better chance if your medical records show your ongoing condition and need for continued treatment.
Dealing with an injury is hard enough, but you should not have to worry that you’ll lose your job because of your workers’ compensation claim. Even though it’s illegal to demote or fire a worker for bringing a workers’ compensation case, unfortunately it does happen.
That’s why Illinois law protects injured workers by allowing them to bring an additional case for illegal termination. These cases are significant, because you can ask for punitive damages against the employer, and the amount of money involved can be quite high. Punitive damages both punish the employer for interfering with your workers’ compensation rights, and they attempt to deter other employers from doing the same.
Recently an injured worker in southern Illinois sued his employer for illegally terminating him because of his workers’ compensation case. He was awarded $4.2 million in damages, which included $3.6 million in punitive damages. In his case, he said that the company had retaliated against him for exercising his right to benefits for medical treatment. He sued for his lost income, benefits, his emotional distress, in addition to punitive damages.
At the end of the case, the jury seemed to agree with the worker, that he had been deliberately fired because of his workers’ compensation claim. The jury’s decision to award him significant punitive damages, likely lets other employers know that Illinois law is in the workers’ corner, protecting them from this kind of abuse of the workers’ rights to workers’ compensation benefits.
Not every case is necessarily going to be worth that much money in damages. And proving that you were fired because of your workers’ compensation case is not always easy. You have to be able to show more than just that your were fired after you filed your claim. You need evidence that shows that your workers’ compensation case was the reason you were fired. But employers cannot hide behind some false reason, if the facts show that it was just meant to hide that you were really fired for your workers’ compensation case.
The message to employers is clear. Illinois law protects injured workers and their right to workers’ compensation benefits for their injuries on the job.
It is not necessarily a cause for despair if your employer tells you that you are not covered under workers’ compensation insurance. Possibly you’re being told that because the company is not following the law, and they don’t have insurance. Or possibly you’re being told that to discourage you from making a claim. Either way, you do not necessarily have to accept that there won’t be benefits for your claim, if you are an employee who was injured on the job.
1. Your employer does not have insurance.
Most employers are required by law to have workers’ compensation insurance. In fact, the penalties for not complying can be quite hefty. An employer can be charged with a felony for not providing workers’ compensation coverage, and can be assessed large fines.
Also, if a misguided employer thinks that not having insurance can save money, it does not. In addition to the serious legal consequences of not covering an employee, the employer is also still responsible for paying for your injury. Without the benefit of insurance protection, your employer will still have to pay for your medical bills, your TTD benefits for lost wages when you were off of work, and your PPD benefits for the permanent impact your injury has caused you.
If you have been told that there’s no insurance, you can go to www.ewccv.com/cvs to verify whether this is correct or not. If they do not have insurance, you need to report them to the Illinois Workers’ Compensation Commission, so they can take further action if necessary.
2. Your employer does have insurance, but is discouraging you from accessing benefits.
Your employer may tell you that there is no insurance, even thought there is, so that you won’t make a claim. Perhaps he or she doesn’t think that you will realize that they are required to provide coverage.
Your employer may subtly or not so subtly make your feel your job could be at risk if you claim workers’ compensation benefits. It is actually a violation of Illinois law to discriminate against an employee in any way for exercising a right to claim workers’ compensation benefits.
Or your employer may tell you that you are not entitled to workers’ compensation benefits because you are an independent contractor and not an employee. If this classification is accurate, then your employer is correct. But employers can incorrectly convince employees that they are independent contractors, so they can avoid paying benefits. You don’t have to just accept that you’re not an employee, if you believe you are.
All of these situations can be difficult and stressful. If you are facing this issue, please contact us and we would be happy to answer any of your questions.
Most employers are normal people like you and me. But every now and then you come across one that makes you question how they look themselves in the mirror every day.
Long story short is a downstate painting company hired a college kid for cash and provided him no job training. He ends up on a scaffold and gets electrocuted and dies because he gets absolutely no training.
The owners of the company tell the family that they are really sorry, but since they were paying cash he's not an employee. Apparently someone told them that if he's not an employee they could be sued for negligence so they then call the family back and say, by George he was an employee. But of course they knew that he died without a wife or kids so all that could be gained is the medical bills and funeral costs.
I referred them to an Illinois wrongful death lawyer and I hope they take this company to the cleaners. The first thing this company did was figure out how to cover their own ass. They were ripping off the Government by paying the kid cash, they failed to train the kid and as a result he died. And when the company realizes that their initial lies might cost them, they make up another bunch of lies.
We'll see how this one turns out, but I don't that I'll ever have a case where I'm rooting this much for a verdict against the wrong doer. If karma exists, they'll get nailed.
We are representing someone who hurt their neck and called us for a Glenview workers' compensation attorney. She was very panicked at the initial call because she felt her case was unique.
Every case is unique in that no two cases are exactly alike, but it's only once in a blue moon that we hear facts that are so unique that it makes the case difficult to handle.
I won't get in to too many details about our client, but the general gist is that she's worked at the same place for a long time and her boss was pressuring her to lie to the doctor and state that her injury was not work related. She was smart enough not to do that, but did pay for some medical treatment out of her own pocket. That's not a huge issue as I'm confident we'll get her reimbursed for those expenses.
The point is that if you are an attorney who handles only (or almost only) work injury cases, there rarely is a situation you haven't seen before. And we created our network of like minded attorneys throughout the state to make sure that no matter who contacts us, we aren't reinventing the wheel so to speak. If we recommend a lawyer for you, we believe in that person and their abilities. When the rare occasion occurs that a situation stumps us, having a large group of lawyers to discuss the facts with allows us to provide better representation.
So please relax and don't panic. You may have a hard case or some hurdles to overcome, but the odds are that you are not dealing with a situation that hasn't been dealt with before successfully. And if you are that one unusual person with unique facts, it's all the better because those are exciting cases for a lawyer.
We are workers' compensation attorneys that help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact usand we will answer your questions or find the right lawyer for your situation.
If the answer to this question is “yes,” then your employer is responsible for your workers’ compensation benefits if you’re injured at work. But if you are an independent contractor, then you’re on your own.
So it’s not so surprising that many times employers will try to incorrectly label their workers as independent contractors to avoid workers’ compensation responsibility. But your employer can call you whatever he wants to, and that won’t make it so. If you’re really an employee in practice, a different label put on your employment status won’t change that.
What makes you an employee so that your employer’s insurance will cover your workers’ compensation claims? Look at the facts of your employment—how you do what you do and how it relates to the company, not what you’re called.
The most important fact in Illinois cases, is whether your employer controls your workday and how you get your work done. Are you told when and where to work, and what process you have to use to accomplish your work duties? Other facts are looked at also. Do you use your employer’s equipment and materials? How are you paid? Are taxes withheld from your paycheck?
On the other hand, if you’re an independent contractor, the end result that is accomplished is more significant to your employer than how or when you got it done. You control your own schedule and you control how you’re getting your work done. Your employer is interested in the results of your work and not necessarily the process. Also, you likely will be paid hourly for your work.
Since the reality of which kind of worker you are is so fact specific, employers may try to slap a label on you and skew the facts to fit the label. The same job can often be done as an independent contractor and as an employee, so the facts of your specific situation have to be looked at.
For example, if your job is making deliveries for a company in Orland Park (as a recent caller does), you could be an employee if the company tells you what hours to work; schedules your route for you, provides the vehicle; and pays you a salary. But if you are given a list of who to deliver to each day, and you can control how you get those deliveries done, and you’re using your own car and being paid by the hour or by the delivery, you could be an independent contractor.
Regardless of what your employer calls you, if you are functioning as an employee then your status doesn’t change, and your right to your employers’ workers’ compensation insurance doesn’t change either. And don’t take their word for it if they tell you that you are not an employee. Speak with a qualified Illinois workers’ compensation attorney. It’s free and will give you peace of mind.
A reader asked us this question recently, wanting to know what happens to his workers’ compensation benefits if he quits his job. That’s a great question, and even better that he asked the question first, before quitting the job. Timing is everything in life, so it’s great to first consider the consequences of the timing of leaving your job while your workers’ compensation case is still ongoing.
The bottom line is that if you leave, some things may change and some remain the same. It depends on the type of benefit you’re receiving, and what kind of claim you have.
Medical benefits are not affected by your employment status. Those payments are reimbursement for the medical care that you needed in order to recover from your injury. So whether you’re working or not, or for whom you’re working, it won’t affect your right to medical coverage.
Similarly, if your injury is permanent and keeps you from working at all, then even if you quit your job you are entitled to the benefits for that loss. Also, if your injury is permanent and you are entitled to permanent partial disability benefits (PPD), you will still receive those benefits at the end of your case, once it is determined the amount you have been reduced in your ability to work.
Some other benefits, though can be affected by your leaving your job. While you are recovering from your injury, if you are not able to perform your original job, and have been given medical restrictions, you could receive temporary total disability benefits (TTD). These benefits include compensation for lost wages because you are not able to work up to your full capacity.
But if you leave your job during this period that you could receive TTD, you could lose or hinder those benefits. If your employer is able to find work for you that accommodates your medical restrictions, but you are not working there anymore, there’s a good argument for the employer not being responsible for those payments.
Also, in general, when if you’re looking at a settlement for your case, you can affect the value of what you could get for your claim by not working. In the case of a larger injury, the amount lost could be substantial.
Though you won’t completely lose your right to workers’ compensation benefits if you leave your job, it is best to hang in there if you can, until we can fully evaluate the details of your case.
We were contacted recently by a worker who was going through a difficult situation that was made even worse. He was injured on the job and couldn’t work, and was getting advice from his lawyer that didn’t make sense. While he should have been receiving regular disability benefits for his lost wages, he wasn’t. And his lawyer was telling him to wait for a lump sum payment. Meanwhile, the man was running out of money.
Turns out, the lawyer was not someone who generally handled Illinois workers’ compensation cases, which likely accounts for the odd information the worker was getting. If the lawyer had been more experienced in the workings of the system, he would have known that this worker was entitled to receive temporary total disability benefits (TTD) for his time off work, and he did not have to wait to get the payments started.
TTD in Illinois workers’ compensation allows for workers injured on the job to get a regular benefit check to compensate for the lost wages from the injury. So if you’re unable to work, or you have to work with restrictions that can’t be accommodated because of your injury, you are entitled to receive TTD benefits. The amount of your check will generally be based on 2/3 of the amount of your average weekly wage if you’re unable to work.
Since these benefits are meant to compensate you during this period that you can’t earn what you could previously, then it would not make sense for you to have to wait for the payments to start. If you’re not getting the benefits you’re entitled to, then your lawyer can request a hearing to get the compensation started.
Even lawyers that are very skilled in certain areas may not be experienced enough in handling workers’ compensation cases in Illinois, to fully protect your rights. Your financial loss during a tough time after an injury is too important and timely to have a lawyer who is learning as he or she goes along, about the practice of workplace injuries.
If your work injury leaves you with a scar, or multiple scars, you can be compensated for the fact that your injury has affected you this way. It depends on the severity, the permanency and where the scar located is on your body.
Generally, compensation is available for serious and permanent scars that appear on the hand, head, face, neck, arm and leg (below the knee) or chest (above the breast line). Basically, if your scar is visible when you are wearing knee-length shorts and a v-neck t-shirt, you should qualify for compensation.
The compensation for scarring and disfigurement is usually in the form of a settlement, which is a lump sum that is negotiated between the injured worker and their employer’s insurance company. Negotiations generally take place at least six months after the date of the employee’s injury so that it can be determined whether the scarring is in fact considered “permanent” under the law.
It’s difficult to state any hard and fast rules on how much a scar is worth, since each is different. How much this type of injury is worth can be very subjective. The type of scar, as well as its location, can make a difference. For example, a raised scar may be worth more than one that is not raised. Permanent scarring on the face is generally considered the most serious and results in the most compensation.
In some situations, an injured worker may be able to get compensation for scarring, as well as compensation in the form of other benefits. Other times, only one or the other is available. It can be helpful to have an attorney with experience in scarring and disfigurement cases in order to fully understand your options. The bottom line is that you can, and should, get workers’ compensation for serious, permanent and visible scars caused by a work injury.
When you have had a work injury and you need treatment and time off of work, you need money to pay for these expenses. Workers’ compensation benefits should be available to you, but what happens if you are entitled to these benefits and the insurance company isn’t paying you?
You don’t have to sit back and suffer. Illinois workers’ compensation law protects you from being withheld your benefits inappropriately. Whether there is an intentional refusal to pay, or just an unreasonable delay in payment, you can be compensated for the insurance company’s unreasonable behavior in not paying you.
Where payment is intentionally withheld, or it’s done for the purpose of delaying, harassing, or with some other ill motive, the penalty can be quite severe. The insurance company could have to pay you 50% more than the original award. So if you have been awarded $10,000 for your medical bills, and the insurance company doesn’t pay, they could owe you an additional $5,000 if there was no good reason for their not paying.
The insurance company can also be assessed a penalty even where the non-payment is not so intentional, but is still unreasonable. Where there is a delay in payment, or a non-payment which isn’t justified by the facts, you can be awarded $30 per day extra for each day that your benefits weren’t paid, up to $10,000.
Recently in Illinois, a cashier suffered a hand and wrist injury from her job. Her symptoms would flare up when she was at work and then get better when she was off of work. She was entitled to disability benefits, but the insurance company did not pay. They later requested an independent medical exam of her condition.
The cashier asked the Arbitrator to assess penalties for not paying the benefits. It was determined that the insurance company needed to be penalized for not paying her during the period where her treating physicians and medical records indicated that she had a work-related accident that required treatment. Once there was an independent medical exam which showed that her symptoms resolved, the insurer could reasonably rely on that opinion. But prior to that, there was no reasonable basis to withhold her benefits. The insurance company could not just close its eyes to the medical evidence and refuse to pay.
If the insurance company doesn’t have any facts in front of it that would make it reasonable to believe that you aren’t entitled to benefits, then they can be assessed penalties for not paying. Even an honest belief by the insurer that you don’t have a compensable work injury isn’t enough to avoid penalties, if that belief isn’t based on facts that are appropriate to rely on.
So where there is more extreme behavior for non-payment, you could be entitled to a significant amount in penalties. But even where the non-payment is the result of less bad behavior, but still unreasonable, you may receive penalty payments. You don’t need to be passive and fret about not getting your bills paid. You can go into court with your lawyer and demand the money, and extra penalty payments.
Workers’ compensation benefits help families to be able to survive financially when someone is injured at work. In addition to medical bills, the lost paychecks can really hurt the family members that are depending on it. So there is comfort in the fact that in many instances the workers’ compensation benefits will not end if the loved one dies, even where the death was not related to the work injury.
If a worker becomes disabled due to a work accident, then that worker should be entitled to workers’ compensation benefits which help pay the bills. When, sadly, it happens that the worker dies before the benefits have been finalized, or before the benefits have been paid, then family who depended on that support suffer a serious financial loss in addition to a personal one. The Illinois workers’ compensation system takes this into account.
After all, as one Illinois court recently pointed out, if a disabled worker’s death could end payments that would otherwise be owed to him or her, the process and therefore the payments could be delayed past the workers’ death. This would effectively use that tragic situation to trump the right to payment.
In the scenario where a disabled worker has died before receiving compensation that’s due to him or her, the estate can pursue the claim in place of the worker. If the total amount of benefits had become due and owing before the death of the worker, then regardless of whether a dependent is left who is in need of the money, it becomes part of the workers’ estate.
Where, however, benefits are being paid in installments to the worker, any payments that are unpaid, future payments that have not yet become due at the time of the death can be paid to the worker’s dependents. The dependents would have to show that they relied on the worker’s financial support for at least half of their total support. They are then able to receive that portion of the benefits that represents what their dependency is.
For example, in a recent Illinois case, a worker’s hand was permanently injured, and she subsequently died of causes unrelated to the hand injury. The worker’s sister had been dependent on her support to pay at least half of her expenses. The sister was awarded 50% of the worker sister’s benefits based on this dependency.
Some reassurance can be found in tragedy, that at least those who count on you for support may still be able to receive that financial help from the workers’ compensation system.
After you’ve been injured in a work-related accident, you may receive temporary total disability benefits (TTD) to cover you while you’re off work healing. Once your recovery has gone as far as it can, then a decision can be made about the permanent nature of your injury.
Sometimes, though, an injury can flare up again and need more treatment. This could mean more medical costs and more lost time from work. Even though your case seemed like it was over and benefits had been set, the Illinois workers’ compensation system generally allows you to reopen the case to compensate you for the additional costs of healing from your injury.
Unless you’ve received one lump-sum payment to settle your case, you can go back to the Illinois Workers’ Compensation Commission and ask to have your case reviewed and TTD benefits restored. You would show that, though you once thought you were done healing from your injury and could return to work, your injury has become worse or flared up again and needs additional treatment and recovery time to help it to restabilize.
For example, one worker had a hand injury that had seemed to be done healing, and later needed more surgery and caused more missed work. He was able to request and receive additional benefits to cover the change in his situation.
Also, in a recent case, a worker had received an award of TTD benefits and permanent disability, when he thought that his injury had improved as much as it could. He was later able to show the Commission that in fact his injury had progressed further, and he was experiencing pain. The worker had sound medical proof that showed that he was not recovered, and his original condition had worsened. This medical evidence was enough to be awarded further payments.
Diagnosing injuries is not an exact science, and can’t always accurately predict the future of your condition, even though it may seem right at the time. For this reason it is very helpful that the system allows, in many instances, for a change in benefits that can reflect the change in your situation.
Under Illinois work comp law, if you have any physical job restrictions, generally speaking you are entitled to continued payment of TTD benefits until a job is found for you within your restrictions or you no longer have the physical restrictions.
For example, we represented a laborer with a major ankle injury which prevented him from being able to lift heavy objects or walk on un-even ground. His foot surgeon gave him permanent restrictions of no lifting more than 20 pounds along with walking on even ground.
There was no job available within those restrictions and he ended up on TTD benefits for two years until a job was found for him.
Recently we had a case where a client also had a major injury, this one was to her back. She had a ten pound lifting restriction. The "smart" insurance company sent a letter saying that a job was available and she should report. Of course it was a bogus job offer as there was nothing available within her restrictions. She was harassed at work when she wouldn't risk further injury by doing the job they asked and got sent home. The insurance company cut off her TTD benefits which was against the law.
Of course this case was taken to an arbitrator and won all of the back benefits as there was no basis for cutting him off. A bogus job offer can't screw up your honest claim.
If you have restrictions from a work injury and a light duty job offer is made that will allegedly accommodate those restrictions, you should try that job, see if you can do it, but above all, don't feel pressured to do things that are beyond your restrictions. There is nothing more important than your health and no worker should make themselves physically worse because the employer or insurance company isn't following the law.
One of the most common questions we get is, "Does the insurance company have to pay me for the gas money I use going to and from my doctor appointments?"
It's a great question that has somewhat of a gray area answer. I understand why people would want this paid. When you are seeing the doctor a lot, especially for those of you in physical therapy, it can cost a lot to make all of those visits. This is especially true for our clients that are in central and southern Illinois or other rural areas where there aren't a lot of choices.
So, is this expense reimbursable?
If you can show that travel to an out of town doctor is necessary because the type of treatment you need isn't available in your local area then you have a shot at it. In a recent case at the Illinois Workers' Compensation Commission, a worker won benefits because she had to travel more than 40 miles to see an expert. This was someone who lived in a remote area and traveled to Mt. Vernon. There was no orthopedic doctor in her area that was an option.
Interestingly enough, in the same case the injured worker was denied expense for travel to get a MRI and physical therapy. Although she had the right to choose facilities that were farther away, there were places she could have received this treatment much closer to where she lives.
The biggest problem in these cases is that most insurance companies won't voluntarily pay these expenses. Many lawyers are too lazy to file a trial motion over this issue or don't deem it worth it. We handle it on a case by case basis, but will usually at least file a penalties petition to put some pressure on the insurance company to do the right thing.
As a worker, you should make sure to keep accurate records of every trip to and from your doctor if you wish to claim a reimbursement.
Maybe there is something in the air lately, but in the last few days I've received two phone calls from workers who had settled their cases and wanted to re-open them because their injuries have gotten worse.
Unfortunately you can't do that. Insurance companies have no motivation to settle a claim other than to know that it puts the case to bed. Forever. If your injury bothers you in the future that is your problem and your problem alone.
It doesn't matter if you didn't know your rights or if things have gotten way worse and you have nowhere to turn to. Unless a new injury has taken place you are out of luck.
So the moral of the story is that if you don't want to close your medical rights as relate to your claim, don't settle. If you go to Arbitration and win, you will keep your medical rights (typically) for life as relates to that old injury.
With the caveat that most Illinois work comp law firms are run by honest people, allegedly one near Rock Island isn't.
A caller claimed to me that this person was handling his workers' compensation claim and was taking out taxes from the payments he was getting.
I looked up this attorney at the ARDC which is the disciplinary commission for IL attorneys. Surprise, he's being investigated for fraud!
Either way, there are no taxes on workers' compensation benefits. No state taxes and no Federal taxes. When you settle your case you should get a nice pink contract. You can hold on to that forever as proof that the money you received is tax free.
This is probably the worst thing I've ever heard a lawyer being accused of. Part of me thinks the client must have been confused and that the lawyer was just really taking 20% of the TTD checks. Technically that is allowed although we only do it typically if we go to trial to get it and we certainly don't take 20% of future TTD benefits.
Big picture since I can't imagine many if any attorneys are saying there are taxes on work comp cases, don't hire a lawyer with a bad disciplinary history and don't hire someone that doesn't primarily handle work injury claims.
A recently injured worker contacted me and it was clear right away that he was doing two things: 1. Shopping around. 2. Fishing for how much his case was worth.
He had injured his back two days prior and it sounded like he had a herniated disc, but it wasn't clear. I told him that it was way too soon to tell him what the case was worth because we had no idea the extent of his injury and how this would effect him. All true. I also mentioned that it's important to think long term and focus on your health because nothing is more important. Also true.
Well he clearly didn't like that philosophy because a Waukegan workers compensation lawyer told him that the case was worth at least $100,000.00. Ha!!!
Maybe the case will be worth that much, maybe it will be worth less, maybe much more. Who knows? It's literally impossible to tell someone two days after an injury what the case will ultimately be worth.
Scumbags like this alleged Lake County work injury attorney will lie to clients in order to get them to sign up. It usually blows up in their face when the client won't settle down the road when the actual value ends up being way less than promised.
Needless to say, we weren't hired and it's probably a good thing. If you are more worried 48 hours after an accident about how much money you can make instead of how you can get better, we are probably not the right attorney for you.
If you are injured at work, or while doing something work-related, you are most likely eligible for workers’ compensation benefits. In Illinois, most employers are required to carry workers’ comp insurance and the majority of workers are covered.
Your employer’s workers’ compensation insurance should pay for all medical bills that are necessary and related to your work injury. These should be covered 100%, with no co-pays or out-of-pocket expenses. You should be covered for the initial treatment after the injury, any ongoing care or treatment (like physical therapy or medication), and even surgery. In Illinois, injured workers can choose their own doctor.
If you are unable to work, either because you are severely injured or because your doctor gives you work restrictions that your employer can’t accommodate, you are entitled to payment of a portion of your lost wages during that time. The amount of these payments is 2/3 of your average weekly wage, calculated by looking at your wages for the 52 weeks prior to your injury.
If your injury is permanent, you may receive permanent disability payments. The amount is different in each case and is usually negotiated between your attorney and the insurer.
There is a general rule that you cannot sue your employer for a work injury. However, if a third party is at fault, you may be able to sue them. It’s called a third-party lawsuit. Another aspect of workers’ comp is that you cannot get punitive damages or payments for pain and suffering. However, if your employer wrongfully denies you benefits, they may be required to pay you a penalty.
If you read my blog, you will see that we talk a lot about being honest as the number thing you should do in a claim. That applies for the lawyers too.
There are a handful of law firms in town that have referral agreements with doctors. Basically the doctors tell the patients who to hire and the lawyers tell the client who to treat with. It doesn't matter the doctor who the best lawyer might be for their patient and it doesn't matter to the lawyer who the best doctor might be for the client.
There is technically nothing illegal about this, but my personal opinion is that it is really unethical, especially on part of the lawyers. Imagine if you find yourself on a witness stand and the insurance company attorney asks you what made you see the doctor you chose. If the answer is that your lawyer told you to, it could hurt your case. The same holds true if the doctor is giving a deposition in your case and testifies under oath that he and the attorney refer clients to each other all of the time. It just doesn't pass the smell test.
What inspired me to write this story was a recent call I had. Seems that a law firm settled a case for a client, but screwed up by not getting all of the medical bills paid. The client was left with around $15,000 after lawyer fees, but before she got the check, the attorney told her that the doctor was owed almost $10,000 and was placing a lien on the settlement.
The lawyer went on to scream at the client that "how dare you not pay this great doctor" and "I can't believe you are trying to screw him."
If you hadn't guessed, the client ended up at the doctor because according to her, the attorney said she had no choice. At that point in time the attorney was only worried about protecting a relationship with a referral source, not about what was best for the client or the right thing to do. And by the way, there are no liens in Illinois workers' compensation so that was a lie by the lawyer too.
It was the attorney's job to make sure all of the bills were paid in this case. They failed and then tried to cover their backside with lies and threats. It's shameful.
And like I said in the beginning, if people would just be honest from the get-go, everything would work out great.
On a side note, I get approached by doctors, physical therapists and chiropractors about once a week with requests to join forces in some manner. I reject these requests every time. I don't think there is anything wrong with a lawyer suggesting a doctor, but when they try to direct your care it's a big problem that can only be solved if they grow a conscience.
The Application for Adjustment of Claim is the official paperwork that you file with the Illinois Workers’ Compensation Commission in order to begin your claim and is typically prepared by a lawyer. The application is a form, and it is the same for every type of injury. The deadline for filing your claim is three years from the date of your injury or two years from the date you last received benefits, whichever is later. If you miss the deadline, you may not have another chance.
Claims are filed with the Chicago office, which is the main office of the commission. There is no filing fee. Next, your claim will be assigned to an arbitrator at a specific location, which is based on where the injury occurred (not necessarily where you live). Every case, regardless of the facts, is assigned to an arbitrator who will make decisions on your claim if there are any disputes.
Some people don’t file a claim because they begin receiving benefits right away and think they don’t need to bother. You should file a claim anyway. If there is a dispute down the road, having a claim on file will speed things up. If you stop getting benefits for no reason (it happens), then you can ask an arbitrator for a hearing without first waiting for your claim to go through.
Although we recommend filing your application right away, it’s not the only step you need to take. You also need to notify your employer of your injury within 45 days. So tell your supervisor, and put it in writing, as soon as you can. Also, you should get the medical treatment you need. Both of these steps – notifying your employer and seeing a doctor – are key in protecting your claim. If you delay too long or skip these steps altogether, your claim can be denied. The sooner you get things rolling the easier it is to prove that your injury was caused by your job and not some outside activity.
A reader sent me the following, but unfortunately didn't give a phone number and her e-mail did not work. So if this was you and you have questions after reading my response, please call me at (312) 346-5578.
I was injured in a car accident while on the job. I have
been on light duty for 4 months and I just recently went to the
orthopedic. The doctor told me I had 1 month to get better. He set up
therapy for me. Can someone give you a time period to get better and
can workers comp stop paying for my medical expenses? Please help me
with this situation. Also should I get an attorney.
The answer is not, you can't be given a time limit to get better and it's odd that the doctor would be the one to imply that you can. Maybe he meant that if you aren't better in one month that you'd be as good as you are going to get.
Certainly the insurance company can't limit how long you have to treat just because they think you should be better by now. I question if this is a doctor that they chose?
Either way, if you are concerned about this doctor, you probably have the right to a second opinion and should exercise that right as soon as possible. It certainly sounds like they should get an attorney because this one definitely doesn't pass the smell test.
If you are a fan of the NFL, you may know that the owners have locked out the players. Basically it means that there is no contact between either of them. This includes no coaching or training at the team facilities.
In addition, the NFL has canceled the health insurance of their players. I have heard some alleged experts gripe about how unfair this is because "injured players won't be able to get treatment for their problems." This would certainly be unfair if it was true.
Even with the lockout, teams can't take away rights under workers' compensation laws. if you are a Bears fan, you know that Jay Cutler hurt his knee in the last game of the year. The Bears will have to pay 100% of his medical bills at a doctor of his choosing. Even if he was seeing the team doctor, they'd still have to pay for it and allow that visit.
The same would be true for you or me if we got hurt on our jobs and were then fired our locked out. Nobody can take away your rights, even if the business closes.
So other than the millions of dollars, celebrity and fame, you and I are just like NFL players, at least when it comes to Illinois workers' compensation rights.
Recently we were asked a question by a reader who wanted to know if he could file his workers’ compensation claim here in Illinois. He lives in Illinois and was injured on the job in Illinois, but his employer is located in Texas. To further complicate the matter, he signed a contract at the time of his employment, which said that any workers’ compensation claim he may have would be handled in Texas.
The answer is: yes—if you are injured in Illinois, you can file a workers’ compensation claim in Illinois. The location of the injury gives you a choice of bringing the case in the Illinois system, regardless of the company’s physical location, or any other factors about where the company does business.
Even though the worker seemed to give away his right to bring a claim anywhere but Texas, in practice he is not able to do this. No employer is able to get you to waive your Illinois workers’ compensation rights. If you have been injured in Illinois, you have workers’ compensation rights in Illinois. The only way to end those rights is through a settlement which is approved by an Arbitrator, and not by an agreement with anyone else.
This reader’s question is also about more than just the convenience of filing in his home state. If he files his claim in Texas instead of Illinois, he could have a lot to lose. Texas is a terrible state for injured workers. On the other hand, Illinois is considered a very worker-friendly state for workers’ compensation.
But even if that weren't the case, the bottom line is that as a worker your rights can't be taken away by the employer. It is good to know that no matter what anyone else says, the protections of the law are there for you.
It’s generally the rule under Illinois workers’ compensation law, that in order to receive benefits, you need to cooperate with all reasonable medical treatment that has been recommended. If your doctor suggests a treatment or therapy plan, and you don’t follow it, your benefits could be suspended or terminated.
Surgery, though, is looked at differently under Illinois law, and gives workers more freedom to just say “no.”
The ability to reasonably refuse surgery is unique in the world of workers’ compensation. Because usually under the system you put your benefits at risk not only for failing to follow a medical plan, but also for doing things that make your health worse. These are called “injurious practices.”
One example of an injurious practice is smoking, which has been known to cause surgeries like lumbar fusion to fail, in addition to all the other health risks. An Arbitrator may tell you that as long as you are still smoking, your benefits will stop.
A lot of times surgery is the only chance that a worker can get better and recover from an injury. To the insurance company, it seems clear—no choice about it: you have the surgery and have a chance to return to work, or else they shouldn’t have to continue to pay.
But Illinois law has said that even if there is an additional cost to the insurer if the worker doesn’t have the surgery, that’s not a reason to deny benefits. As long as refusing the surgery is reasonable, your benefits shouldn’t be affected.
Because surgery is an invasive procedure, if you are fearful to do it, that’s generally enough to show your decision is reasonable. Whether it’s fear of the procedure itself, or the possible outcomes of the surgery, workers are usually given a lot of freedom to have their own beliefs and fears about it.
If your choice about surgery is made in bad faith, that may be viewed differently. But otherwise, you should not have to give a medical or scientific argument about what harm might come to you from the surgery in order to keep your benefits.
Even where there could be serious harmful consequences in refusing the surgery, your decision not to have it can still be reasonable, even if it is based on fear of the procedure. You cannot generally be forced to choose between surgery and workers’ compensation benefits.
In life, who you know is often more important than what you know. I will never forget my first workers' compensation trial months out of law school. The Arbitrator didn't know who I was, but was clearly pals with my opponent. The facts were on my side, but we lost due to their relationship.
Years later I tried a very similar case in front of the same Arbitrator who by then knew me well. I of course won that time because he wasn't doing a favor for his buddy against someone he didn't know.
Knowing the Arbitrator is important for any type of case. If you are hurt in Cook County it's impossible to predict who the Arbitrator will be because there are so many that could be randomly assigned. In the suburbs and downstate there are usually just one choice and you know ahead of time who it will be.
Joliet used to have two Arbitrators and they were very different from each other. Now there is just one Arbitrator and she has been around for a long time. In fact her husband is a workers' compensation attorney as well.
If her husband doesn't like you, I don't think that bodes well for you. Same if she doesn't know you or like you. Her husband can't handle cases assigned before her, but many of his friends do.
I've appeared before this Judge, but not for a long time and I don't know her husband. But I do know the attorneys that know them well and while that won't guarantee a result, I do believe that if all things are equal it can make a huge difference.
The bottom line is that whether you need a Joliet workers' compensation attorney or one in Decatur, Rock Island or anywhere else, before hiring an attorney you should ask them what they know about the Arbitrator and how often they appear before them. Failure to do that could ruin your case.
Chances are if you are unhappy with how your Illinois Workers’ Compensation attorney is handling your case, it may be because they should not have taken on your case in the first place. Most attorneys are well-intentioned, but if they take on every case that comes in the door, they may not be serving the clients well. We will not represent everyone that comes to us, and in particular there are two scenarios where we are not the right fit for you.
1. If your injuries are minor, relatively speaking, your case is not one for us. Most minor injuries, like contusions and finger sprains, are fairly easy to treat, and also fairly easy to have the bills paid by the insurance company.
Our resources, on the other hand, are better devoted to workers with injuries that are more significant and who really need our help and our protection. These injuries are the kind that can affect a person’s health and/or employment for the rest of their lives. Taking all the proper and timely steps could be essential to their case. Our time and resources are well-placed helping people in those situations. We don’t want to be spread too thin to the point where our client is not getting what they need from us.
2. If someone wants to try to exaggerate or fake a claim, we are also not the right attorney. While most attorneys are honest and will not represent a client that they know is a liar, some attorneys don’t necessarily care about honesty.
The workers’ compensation system is so critical to helping injured workers, that it is important to try to prevent the small number of dishonest workers from casting a shadow of doubt over the whole system which is mostly good and trustworthy. We will not represent a client if we believe he or she is not being truthful. And if we discover along the way that a client is lying about something, we will not continue the representation.
By representing clients that we trust, and who are trusting us to help them through a serious and difficult time in their lives, we are able to form the most successful partnership together in pursuing their workers’ compensation cases. Also, if we (or any other lawyer) represents a liar and gets the reputation for helping clients who aren't honest, it will hurt the clients who really are injured and need help.
Please don't let this post discourage you from contacting us. We just want to be clear that we won't take every case and that it is for the benefit of the clients we do represent.
It is a felony to not carry workers' compensation insurance. That said, a restaurant in the same building as the Illinois Workers' Compensation Commission headquarters did just that. In the end, it cost them their business. The following is a press release from the Chairman of the Commission:
On January 4, 2011, the IWCC shut down Steak and Fries, located right in the same building as IWCC offices: 100 W. Randolph St., Chicago
The IWCC gave the employer every opportunity to comply with the law before shutting the restaurant down. The IWCC first brought an enforcement action in March 2009. The owner secured insurance in April and agreed to pay a fine of $15,000. He failed to pay all of the fine, however, and the next April, he failed to pay the insurance premium.
Uninsured employers are deemed a serious threat to public safety and welfare, and the law authorizes the Commission to shut such employers down.
Thanks to Insurance Compliance Division staff for their efforts to make work more safe for workers and the business environment more fair for employers.
So while some bad employers will continue to break the law, it's good to know that when they are caught, there is someone to stand up to them. Usually it just takes a courageous employee to get things started.
Some work injuries are so severe, that even after receiving medical treatment or hospitalization, you are still not able to live at home without some help. The range of services needed at home is large, and can include everything from housekeeping help to specialized nursing care. Illinois Workers’ Compensation law allows for some of these expenses to be reimbursed, however it is a much more difficult argument to make when it is a spouse providing those services.
More leniency is allowed for compensating home health care services when someone other than a spouse is involved. A husband or wife is the logical person to help, and is likely who you would be most comfortable with. However, benefits are generally not allowed to be paid for a spouse’s care, unless the services being provided are more specialized than what can be considered “housekeeping services.”
The reasoning is that spouses “obligate” themselves to help one another in times of sickness and health, so essentially they are just doing what they are otherwise bound to do, and should not receive workers’ compensation benefits for it. Some examples of tasks that have typically been considered noncompensable household duties are: shopping, preparing meals, cleaning, and laundry. Spouses are performing these services for each other, because of their relationship.
On the other hand, if the services are more nursing in nature, then they are more likely to be compensable. Some of those tasks would typically include bathing and other bathroom and sanitary functions, administering of medication and treatments, pain relief, and therapies. Where the nature of the injury itself requires certain specific care protocol, it is more likely to be considered compensable services and not “ordinary” home care.
Even where compensation is allowed for the spouse for home health care, the amount of the pay varies. It can largely depend on the skill and training the spouse has, and whether he or she is licensed in the particular area, such as a nurse, therapist, or dietician. If the spouse has specialized training and is performing services in line with that training, the pay will likely be what that profession would pay for any other job.
When a work injury has left you unable to care for yourself at home without help, workers’ compensation law can provide benefits for that help. Who is performing the services, and what the duties are will tell the rest of the story.
A worker who had been recovering from an injury contacted us, wanting to know whose doctor has the final say about returning to work full time. His doctor said he was authorized off of work and needed more treatment. The insurance company IME doctor said he was fine and could return to work with no more treatment.
In short, neither physician is able to make a final, definitive ruling regarding the state of your injury. The arbitrator hearing your case has that ultimate responsibility. However the arbitrator, in order to make a properly-informed and reasoned decision, will weigh the findings and opinions of the physicians’ records, and also the credibility of the physicians themselves.
The reputations of the doctors will likely come into play in evaluating the credibility of their findings. Some doctors are known for routinely denying causation or injury. Others enjoy better reputations, and therefore are more likely to have the arbitrator defer to their judgment. More information regarding the specifics of each of the doctors involved is needed, therefore, to be able to answer the question as to which will be more relied upon by the arbitrator. You would be surprised how many times someone calls us to complain about an IME doc and we are able to guess who it is based on what the doctor said. Plain and simple, many of these doctors are just hired guns who everyone knows will favor the insurance company.
There are some precautions you can take to better position yourself and your treating physician’s findings, such as care in physician selection. When your insurance company is choosing a doctor for a Section 12 Independent Medical Examination, this so-called “independent” physician is likely a specialist in the particular area of concern. The experience in the specialized medical area could be given more weight by the arbitrator, than your doctor’s experience if he or she is an internist or a primary care physician. For example, if you have a shoulder injury, you would be better served by being treated by a specialist, because I can virtually assure you that your insurance company hired an orthopedist to examine you.
If you have had a denial of medical care based upon a Section 12 examination report, you likely need to consult an attorney to help you overcome this problem regarding conflicting opinions of “experts.” The best thing an attorney can do is get your case ready for trial and show the Arbitrator that your physician is credible and there's is not.
Without naming names, there are a handful of workers compensation attorneys in Illinois that have a reputation for "settling short." This basically means that they will tell their client to settle the case even when they know the claim is worth more money?
Why do they do this? Our belief is that these firms feel that it's easier and thus better to get a case in and out the door rather than do the hard work to actually get a good result for the client. Or they are just lazy.
Sometimes there laziness only costs their clients a couple of thousand dollars. Other times it leads to tragedy.
We won't name names, but a Peoria workers' compensation lawyer who is notorious for selling out his clients told one client who had a major injury to settle the case for $55,000. The client couldn't return to work and realized that this amount just didn't seem right. He came to us for help and we recommended a central Illinois law firm that is known for fighting for their clients.
Not too many months later after getting the case ready for trial and making the best case possible, the new lawyer we suggested was able to resolve the case for $250,000.00, almost a $200,000.00 improvement.
Of course this doesn't always happen, but it happens way more than it should. It's not easy to find a new lawyer if your current one isn't doing the job and a settlement offer has already been made. Quite honestly it's best to switch before an offer has been given to you as more lawyers will consider your case. But no matter what happens, if the settlement just seems too low for what you've gone through, don't be afraid to ask around. Usually when other attorneys hear who is representing you they can tell you if you have someone who is reputable or not.
The crazy thing is that the lazy lawyer lost almost $40,000 in attorney fees that could have been easily had if they just did the right thing.
After a work-related injury, it is comforting to know that you can still have some choice as to which doctors you see, even while receiving workers’ compensation benefits. But, like anything in life, there are limits to this freedom of choice.
Illinois Workers’ Compensation law allows an injured worker to receive benefits for the medical services of two physicians of choice, in addition to emergency and first aid treatment. This means that the insurance company should pay for the visits to a doctor you choose, and also for others to which that doctor may refer you, in the same chain of referral. You are then able to pick another doctor, who can also refer you to others.
Once, however, you have had your two picks, you are not able to receive benefits for a physician of your choosing, unless the insurance company agrees to your selection.
There are some gray areas, though where it may seem as if it is the employee’s choice of doctor, but the employer actually has a hand in it. In these cases, often it can be held that the employer’s involvement made it their choice, and preserved one of the two choice options for the employee.
Recently, the Illinois Workers’ Compensation Commission looked at such a situation, and found that the employer had intervened in the choice. The employee had gone to see his doctor, and was referred to another for further examination. After that, the employer’s nurse case manager recommended another doctor, who the employee saw voluntarily. When the employee later saw another doctor that he chose himself, there was a dispute about whether that was a third choice that the employer would not be responsible for.
In fact, according to the Illinois Commission, the involvement of the nurse case manager in scheduling and going along on the appointment, kept it from being counted as one of the employee’s two choices. Also of note to the Commission, was the fact that the employee was not represented by an attorney at the time of this physician referral and visit.
Seeking treatment for your work injuries in a proper and timely manner can be critical both to your medical treatment and to your ability to recover the medical expenses. Being able to choose your own physicians, within the scope of the Illinois law, can help that process along while also helping your comfort level.
Getting in and out of a car is something we do many times each day, but in some situations you can be entitled to workers’ compensation benefits for an injuring yourself doing just that. Frequently we are asked about situations like this--whether a seemingly ordinary activity can actually “arise out of employment” to trigger benefits.
In a recent case, a police officer injured her knee and required surgery, when she heard it pop while getting out of her squad car. This may seem like an activity that most people, including the officer herself, would do in the course of their typical day, and not be connected specifically with employment. But this case shows that you have to look at the particular facts of the situation, to decide if you may be entitled to benefits for an employment injury or accident. Certain extra facts can change the activity from a neutral activity to an employment-related activity.
The arbitrator in the police officer’s case determined that the extra facts made the case different than the general public getting in and out of a car, and different than the officer herself getting in and out of her family car when she was not on duty. Her work duties required her to wear a uniform that included a 30-pound gun belt with accessories, a large radio, and a protective vest. Performing her job meant that she got in and out of the squad car about 40 times each day, while wearing the heavy and bulky uniform. These details were enough for her knee injury to have arisen out of her employment and entitled her to collect Illinois workers’ compensation benefits.
These types of cases are clearly very fact-specific, which is why talking to an attorney to evaluate whether you have a claim is so important. A situation that may seem ordinary and not employment based, may in fact be determined to be potentially compensable when scrutinized by an attorney.
If you were injured because of something you would have been exposed to with out without your employment you may not have a claim. Also, if the injury resulted from a risk that was specific to you personally and not specific to your job, you likewise may not have a claim. The turning point may be those extra facts, like the bulky, heavy police uniform, that change your injury from personal to compensable under Illinois workers’ compensation.
Winning and losing when it comes to lawsuits is not as easy to measure as many people may think. Most court cases don’t go all the way to a trial and aren’t decided by a pronouncement from the judge. Settlement is the most frequent outcome in litigation. A “sure thing” with a positive result is often times preferable to “rolling the dice” after a long trial with an uncertain outcome.
So how do you know if the settlement your attorney is recommending can really be considered a win for you? You have to have a hardworking, experienced lawyer working for you, and then you can have confidence you’re getting the most out of your settlement that’s available.
We were proud of one settlement recently, which showed just how variable an outcome can be without the right lawyer working for you. A client came to us after his prior attorney had attempted to settle his case. The attorney told him the offer was $20,000, and that was the best that could be done.
Well, it turned out that $20,000 was only the best that could be done without putting the work into the case that the client deserved. We took the case, and pursued the claim as it should have been done. Just before trial, we were offered $40,000—double what had been deemed “can’t do better.” That was what we felt was the best could be done based on the client’s injuries and recovery.
Sometimes an offer is the best that can be gotten, but you won’t know you have the best offer, unless you know you have the right attorney working hard on your behalf to really go for the win. If you aren’t happy with what’s been offered you can always go to trial.
As a client who doesn’t regularly deal with Illinois work injuries, it’s of course a challenge to know if what you have been offered is fair. There is no sure test, but if your lawyer has been lazy before the offer was made, it’s probably a sign that a better result can be had.
A lot of cases go smoothly and the law is followed. In some cases, however, your benefits get denied or delayed for no reason. The good news is that there is a solution called penalties.
In not so plain English, here is the law:
19k = (k) In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.
19l = (l) If the employee has made written demand for payment of benefits under Section 8(a) or Section 8(b), the employer shall have 14 days after receipt of the demand to set forth in writing the reason for the delay. In the case of demand for payment of medical benefits under Section 8(a), the time for the employer to respond shall not commence until the expiration of the allotted 60 days specified under Section 8.2(d). In case the employer or his or her insurance carrier shall without good and just cause fail, neglect, refuse, or unreasonably delay the payment of benefits under Section 8(a) or Section 8(b), the Arbitrator or the Commission shall allow to the employee additional compensation in the sum of $30 per day for each day that the benefits under Section 8(a) or Section 8(b) have been so withheld or refused, not to exceed $10,000. A delay in payment of 14 days or more shall create a rebuttable presumption of unreasonable delay.
So there is a punishment for bad behavior, but it requires a lawyer who will actually do the work. On top of these penalties, you can also have your attorney's fees paid.
Often a penalties petition is filed in order to prod the insurance company to do the right thing or give yourself leverage. But if they don't do the right thing and your lawyer doesn't proceed to a hearing on this issue then you probably are at the wrong firm.
Personal Injury and Medical Malpractice Cases Typically Settle Differently than Workers' Compensation
Settling a case for a workers’ compensation claim may seem similar to its “cousins”-- the case in civil court for personal injury or medical malpractice, but in fact there are significant differences. Though they bare a family resemblance, beneath the surface they have distinctions.
In personal injury and medical malpractice claims, there is a proof of fault component that is not present in workers’ compensation cases. However, the trade-off, is that there are more types of damage remedies in civil court cases than in workers’ compensation, so the amount recovered can vary much more. In workers’ compensation, the damage potential is usually more defined, because it is more specifically related to the injury, recovery, and wages.
For this reason, civil lawsuit awards of damages are capable of showing more disparity by region, from Chicago area to downstate Illinois. A Chicago jury, for example could place a value for an injured back at $100,000, factoring in pain and suffering. A similar injury could be assessed by a Peoria jury as being worth $50,000.
This kind of variability by region is not usually seen in workers’ compensation cases. Though some judges may be more conservative than others, it is not necessarily based on geography as it can be with jury trials. Since the damage award is pegged to more specific measures, a worker with, for example, a herniated disc that makes $40 per hour should have a similar outcome to someone in Carbondale working a similar job and with a similar injury.
Because workers’ compensation damages have these differences as opposed to personal injury and medical malpractice, settlement would also correspondingly be different. With a more measurable likely outcome, a settlement offer should be more measurable as well, and should not vary widely between Chicago and downstate.