Employees who are injured on the job can get help, in the form of various benefits, from their employer’s workers’ compensation insurance company. This system of compensation is set by law in Illinois. The law covers eligibility, benefit amounts, timelines, deadlines and other details.
There are some situations, however, that fall outside of Illinois’ work injury laws or that aren’t addressed at all by these laws. We get questions about many of these issues, so here are a few things that aren’t part of workers’ comp law.
Independent contractors: Illinois workers’ compensation is only available to injured employees, not injured independent contractors. However, if you think you are an independent contractor, or your employer tells you that you are, make sure you really are. The law defines “independent contractor” in a specific way and you might actually be an employee.
Third-party defendants: If your injury was caused by someone other than your employer, such as a customer or other property owner, then you might be able to sue for damages. Workers’ compensation law says that you can’t sue your employer. A third party that is not your employer falls outside of this law.
FMLA: The Family Medical Leave Act allows workers to take time off of work for injury or illness or to care for a family member with injury or illness. It doesn’t provide pay, but it requires their employer to hold their job for them. This is a federal law that is not addressed by state workers’ compensation law in Illinois. Legally, they are separate issues.
Pain and suffering: Workers’ compensation benefits include payment of medical expenses and lost wages. However, these cases are not lawsuits. They are claims for benefits, and payment for pain and suffering simply isn’t available.
Although these things aren’t covered under Illinois workers’ compensation law, it’s a good idea to talk to an attorney if you have questions. Don’t take the advice of employers, insurance adjusters or even friends and family when trying to figure out whether you have a valid work injury claim.
Employees who are injured on the job can get help, in the form of various benefits, from their employer’s workers’ compensation insurance company. This system of compensation is set by law in Illinois. The law covers eligibility, benefit amounts, timelines, deadlines and other details.
Under Illinois workers’ compensation law, you don’t have to be at your physical workplace in order to qualify for benefits. People who get hurt while driving, walking into work, traveling from one place to another during the day or even while out of town can be eligible for benefits.
The main thing to know is that your injury has to arise out of and in the course of your employment. This generally means that an injury has to happen while you are working, and within the scope of your employment. It’s a fairly broad category that can include anything that you are doing for the benefit of your employer – not just your specific job duties. If you are running an errand for your boss and you get hurt in the process, that could count as a work injury, even if you weren’t physically at work or technically doing your job at the time.
So how does this apply to injuries to and from work? If your commute is typical and totally under your control, then it probably isn’t covered. Most commutes are not within the scope of one’s employment. However, if your commute is somehow unique because of your job, you can make the argument that a commute injury is a work injury. Also, if you drive around during your work day, meeting clients or going to different work sites, then an injury while you’re doing this type of commuting should be covered.
The key is connecting your injury to your work obligations. Sometimes this is fairly obvious, other times you need a skilled attorney to make the connection and argue for benefits. If your benefits are denied, your attorney can get a hearing in front of an arbitrator (like a judge) who will hear both sides and make a decision. Starting this process sooner rather than later is in your best interests and can help your chances.
I only make money if I take on clients, especially if they have good cases, but I always tell the truth. And sometimes being honest prevents me from getting business which is of course just fine.
A recent called to my office hurt his back a couple of years ago, had surgery and hired a decent firm in town to represent him on that case which is still pending. He did return to work and got hit in the head, resulting in a neck injury. The insurance company sent him for an IME and he’s worried that he won’t be able to receive the additional medical care he needs.
He called me and said that there’s nothing wrong with the firm he has. They haven’t had to do much, but they’ve answered his questions. He’s just worried that he’d be putting all of his eggs in one basket if he had them do the second accident as well as the first. He called a different Chicago workers’ compensation firm that said they’d gladly handle the neck injury and let the first firm handle the back injury and they told him that it’s the right thing to do.
It’s only the right thing for the lawyer, not the worker. Both of the injuries this worker has are serious and could impact his ability to work in the future. But they are also closely related and when it comes to a settlement, one could impact the other. If he went with two different firms it would not only make the case drag on longer (too many people to coordinate to attend depositions, trials) and cost more money (each firm would have to spend money for records), I could also see the lawyer arguing over who earned what which again wouldn’t be in the best interests of the worker.
So I told him that he shouldn’t hire me for the 2nd case. Instead he needs to determine if his first firm is really in his corner. He’ll know that soon if the IME goes against him and they don’t get his case ready for trial quickly.
My opinion would have been different if the first injury was all better and ready to settle and the second case was something like a broken arm or carpal tunnel case. But when you have injuries to different parts of the spinal cord or both problems still require medical attention, they are just too closely related to have two firms.
This did cost me money, probably a lot of it. But it is the right thing to do which will make my firm more successful in the long run.
There is a firm in Chicago that represents a high volume of injured workers. I get more calls from people who have had a bad experience with them than anyone else. Of course they are not a firm I would ever recommend and are not a part of our state wide network of attorneys. Their main partner has called me at least five times over the years asking me to send him business. I have let him know that he does not meet my selection criteria.
There have been numerous times when a caller has told me something outrageous that their lawyer has done and I’ve been able to guess correctly that it was this group. Usually it’s that they don’t return phone calls or explain anything to their clients or the lawyer that was working on their case quit and a new lawyer took over, but this happened multiple times. Their worst common offense is promising that the client will get a huge amount of money – they do this to get them to sign up – only to never live up to that bravado.
But probably the worst thing I’ve heard about them came from a recent caller. His case has been going on for years and there have been lots of customer service problems. That’s to be expected with this firm. The injury is quite severe and according to the caller, he was told in September that the case was settled. He wasn’t thrilled with it, but assumed there was nothing he could do. They told him to expect them to send settlement contracts to his house in a week or two.
And that’s the last he heard from them. He’s called them multiple times to find out what happened. Never got a call back. Was always told that the attorney was busy.
So finally he did something he shouldn’t have done and called the opposing attorney. That lawyer shouldn’t have talked to him, but did. He said that he sent the contracts to the worker’s attorney in October and has been following up too to find out what’s going on without a returned phone call. He finally tracked down the lawyer at the Illinois Workers’ Compensation Commission and was told that they “lost the contracts.” He was either too embarrassed or too busy to call and ask for new contracts.
The defense lawyer said that he sent new contracts weeks ago. Don’t you think that any normal person would be rushing to get them to the client? First off, that’s how they get paid. Second, they dropped the ball, big time, and should want to make things right. But if you know this firm, you know that they really don’t seem to care about their clients at all.
Now they have a client that wants to sue them and/or file an ethical complaint against them. One day these guys will lose their license to practice law because you can’t keep on screwing people over and get away with it forever.
He still doesn’t’ have his contract and unfortunately there isn’t anything we can do for him. I told him to show up at their office and catch the lawyer walking in or out if he won’t see him. This is his life. He deserves so much better.
A recent Illinois workers’ compensation case was resolved – in favor of the injured worker – after several appeals. The worker had fallen down the stairs, injuring his back. The appellate court determined that he was eligible for workers’ compensation benefits for his back injury despite the fact that an unrelated knee injury caused him to fall.
The worker was an employee of the Villa Park police department, and he had recently injured his knee when he slipped and fell at a vacation home. He was able to work, but was not fully healed and had scheduled knee surgery for several months later. Between the time of the knee injury and the surgery, this employee fell down the stairs at work. He said that his knee gave out while he was walking down the stairs. He injured his lower back when he fell.
There were other factors that led to the denial of benefits and the appeals in this case, but we want to highlight the fact that, in the end, this man did receive compensation, despite the fact that he fell because of a knee injury that was completely unrelated to his job.
In Illinois, the law is that if you have a pre-existing condition, and you re-injure yourself at work, or something happens on the job that makes that old injury worse, you can still file a claim for workers’ compensation. This is true even if your work injury is more severe because of your pre-existing condition than it would have been otherwise. It shouldn’t matter.
For example, if you have existing back pain, and you get into a car accident while driving the company vehicle to see a customer, injuring your back so much that you can no longer work, benefits definitely should be pursued. Even if your injury would have been fairly minor if your physical health had been 100% to begin with, you should be entitled to benefits.
It doesn’t matter what condition you are in when you walk into work in the morning. If something happens during your workday to make you worse off than when you came it, you should be covered. Of course, you also have to meet the basic requirements, such as the requirement that your injury must arise out of and in the course of your employment.
Don’t take the “advice” of your employer or their workers’ compensation insurance company. Don’t let them tell you that you can’t get benefits because of something you did or some existing medical condition you have. Talk to an attorney who has represented hundreds of injured workers and get their take on it.
The other interesting part of this case is that the man didn’t slip on anything on the stairs. Instead, his knee just gave out. Usually that means you’d lose your case because you didn’t have an accident, but in this situation the man had to go up and down the stairs many times a day. The Court said that because of this increased activity, he was at a greater risk than the general public when it came to being in an accident on the stairs. Based on that, he won his case.
I’m happy to talk to anyone about any legal situation and of course don’t charge anything to do it. I do laugh and sigh a bit when someone calls me and tells me that I’m so much more approachable than their attorney which is why they are asking me a question about their case instead of the person that is going to be paid for allegedly representing them.
I had such a call the other day from a gentleman who wanted to know what the “red line” was. His lawyer had written him a letter letting him know that the case was above the red line, but didn’t explain what that meant. When he called the office he never got a call back, so he did some searching online and ended up talking to me.
The red line refers to cases that are three years or older at the Illinois Workers’ Compensation Commission. Not your accident date, but the actual filing date.
Every 90 days your case will appear before an Arbitrator on their status call. If the case isn’t three years old or more, the only way to get a trial date is to file a request for hearing. If you don’t then the Arbitrator will automatically continue your case until the next status hearing.
If the case is more than three years old it is above the red line. In plain English this means that the Arbitrator will set it for a trial date unless your lawyer can show that you are undergoing active medical care, receiving TTD benefits, going through vocational rehabilitation or something else that shows your lawyer isn’t just being lazy.
And that’s really what this rule does, is force lazy attorneys to show why they haven’t done anything to move the case to settlement. Most cases are wrapped up in 12-18 months. Some injuries are longer term and require more treatment. But every now and then you’ll see a case where it could have ended two years ago, but nobody made that happen. The insurance companies don’t mind if the case drags on if they aren’t paying you anything. Or other times they want it settled, but don’t do anything to make that happen like hire a defense firm.
The biggest concern with a case being above the line is that if you are not represented at a status hearing, when your case is called it will be dismissed. That of course could cause you to lose your rights forever.
Bottom line is that if you hit the red line and haven’t seen a doctor for a year or more, you probably didn’t get very good representation. If you are still receiving work comp benefits then as long as you have an attorney at the status hearing you have nothing to worry about and can still focus on your medical care.
I saw this on another website, but thought it would be good for our readers too:
I hired a work comp firm in Illinois. He had me sign a power of attorney, I hesitated but signed anyway. He said that when the time came this gave him power to take a settlement that was really good, that he could grab a good deal if he couldn't get a hold of me. I’m having second thoughts about this. I have a back injury that may or may not prevent me from returning to the work that I was doing. The consequences could be devastating to me if he or someone else at the firm accepted something sub par or simply closed the case because there was too much work involved to get a better settlement. Is this usually how it works or should I be worried?
It’s not usual. In fact, I’ve never head of a lawyer getting power of attorney that gives them the right to accept any settlement they want to take and I don’t think it is legal. It’s very unlikely that this lawyer would take $50,000 to end the case if it was really worth something like $300,000 but why even risk it?
What this person needs to do is contact their lawyer and tell them they are revoking the power of attorney. If he has a problem with it then they should find a new firm to work with too.
These cases are your life and nobody should make a final decision about your life but you. Our job is to make recommendations to you as to what is best for you, but ultimately you need to decide.
We do ask our client to give us a power of attorney, but what we ask for is much different. When the case is settled – based on YOU wanting that – and settlement contracts have been processed, typically a check will be mailed to our office for the settlement amount payable to us and you. We are legally required to deposit this money in to our client trust account and then write you a check for your portion from that account. Usually our clients will give us a limited power of attorney to endorse their name on the settlement check (not make them take a settlement). This just allows us to pay you sooner without you having to come in to our office. If we were to use this for any other purpose we’d lose our law license.
My guess is that this other lawyer got tired of working hard and having clients tell him that he wasn’t doing enough or getting them enough. So he created a way to get around his obligation by this form.
Bottom line is that if you see your firm doing anything that seems unusual, get a 2nd opinion. Sometimes it’s actually normal, other times, like this, it’s beyond strange. Educate yourself and look out for yourself.
We talk to a lot of people every day, and every day we’re surprised at the myths that are going around. Here are some things we hear a lot, and here’s what we’ll tell you if you call us.
- Myth: If you file a claim, you can lose your job. Illinois law makes it illegal for an employer to retaliate against an injured employee because they chose to file a claim for workers’ compensation. Legally, they can’t fire you. And the reality is, if you don’t file for benefits, you’re potentially missing out on payment of all medical bills plus payment for back pay and future lost pay, as well.
- Myth: You have no chance when up against a big insurance company. Don’t let anyone scare you into thinking this is true. The insurance companies are big, and they have lots of lawyers, but they also handle tons of claims. If you have a legitimate injury, a lawyer who is known for fighting for his or her clients and has the experience to know how the system works, the size of the insurance company should be a non-issue.
- Myth: If an injury is your fault, you’re out of luck. In Illinois workers’ compensation benefits are provided regardless of fault. If you got hurt because of something careless you did at work, you’re still eligible. If your employer tells you this or other things to convince you that you’re not going to get workers’ compensation, don’t take their word for it.
- Myth: If you’re an independent contractor, you don’t get workers’ compensation. Again, this is something employers often do to prevent workers’ compensation claims. If you are truly an independent contractor, then you are not eligible for benefits. However, many employees are mislabeled. And it’s not your employer’s label that counts. If there is a dispute, the law looks at how much control your employer has over you when determining whether you are an employee or an independent contractor. We’ve talked to plenty of people who ended up being an employee, legally speaking, and were able to get benefits despite what they were told.
- Myth: You can’t afford an attorney. No Illinois workers’ compensation attorney should charge you anything upfront. At the end of your case, if you get a settlement, they will be paid from that. The law limits their fee to 20%. If your attorney is asking you to pay any costs – for medical records, copies, depositions, travel – then you might need to find someone with better resources to handle cases. Everyone can afford a work injury attorney.
If you have questions about these or other things you’ve heard, let us know.
Back in October I referred a case to a Wheaton workers’ compensation lawyer. The client had broken his ankle on the property of his employer. It was a pretty serious fracture and required surgery. He got released from his doctor to return to work at the beginning of December.
The attorney I referred him to had filed subpoenas for all of the medical records and wrote the client a letter that he was doing that so that in the beginning of the new year they could discuss putting together a settlement demand if he was still feeling well and working without problems. Everything seemed ok.
Then the settlement whisperers came out of the woodwork. These are people who think they know how your case should go because they or someone they know was involved in something once. In this claim, the worker wrote the lawyer and stated, “My family tells me that you are taking too long and that I should fire you. They say you are not on your game because my neighbor had a fall and not only got back to work with all of his bills paid, but he got a settlement and promoted. I may have to go at this alone.”
Now I don’t know his neighbor, but I do know how these cases work. Nobody gets a settlement that quickly, at least not a good one for a major injury. It would be legal malpractice for this attorney to try and settle the case without a copy of all of the medical records and bills because if a bill doesn’t get paid the lawyer could be on the hook. And if it turns out that the records reveal something that would have made the case worth a lot more money then it’s big trouble.
And quite honestly, while I do know some attorneys who b.s. their clients and say that most cases take years to settle (not true, depends on when you get released from medical care and are working without problems), settling within three months of an injury, especially after a surgery would be irresponsible. In most surgeries, scar tissue builds up and that can cause you future problems. So unless it’s an incredible offer or your doctor can confirm you will have no more issues, waiting an extra month or two is always the safest play. If you settle and need more treatment then you’ll have to pay for it.
But the biggest problem in this situation is that the people whispering in his ear have no experience and no frame of reference to judge what is best for him. The reason you hire an attorney is for their expertise. That doesn’t mean you can’t question them and you should. You are the client and you have a right to answers. But if you are going to take the advice of a non-lawyer over an attorney who has handled thousands of cases, then you are really being your own worst enemy.
Some of this sounds harsh, but I don’t add value by sugar coating anything. Don’t be afraid to ask questions. Just make sure that you are asking the questions to people that actually have a track record of handling cases.
A nice guy called me, not looking for representation, but instead a recommendation to a lawyer for his denied short term disability application. We had apparently helped a friend of his previously so that friend thought we might know somebody for his situation. Typically we don’t get involved in those situations, but I will talk to anybody, especially when it’s a friend of a former client.
As we started talking, I learned that he had plantar fasciitis, which is a foot and heel injury. It often happens to people that do excessive walking on hard floors (which this guy does) and/or do it with steel toed boots (this guy too).
I asked why he was applying for disability and not workers’ compensation and he told me that he had brought it up, but “My boss said I don’t have a case or else it would be happening to everyone that works here.” So the guy just figured that he didn’t have a case.
The logic of his boss is interesting and clearly he’s only looking out for himself. Because what he is saying makes no sense. That’s like saying cigarettes don’t cause lung cancer because not everyone who smokes gets that disease.
The reality is that every human body reacts differently to various physical situations. Some people will get sick when others won’t. Some will get injured and others will be fine.
This guy is a hard worker and walks between four and six hours a day. I can’t imagine that his foot doctor won’t find his condition to be work related.
The point to remember is that you shouldn’t take legal advice from non-attorneys, especially ones who have a personal interest in telling you that you do not have a case. It costs nothing to ask a real law firm what your options are and it’s certainly a much better idea.
We get a lot of good questions. Here is a compilation of some that have come in to our office recently.
-What are the time limits for bring a work comp case?
Typically it’s the later of three years from the date of his accident or knowledge of the injury or two years from the last payment of compensation related to the case. Note, there are some exceptions to this rule.
-When does an employee, under Illinois law, become covered by Illinois workers' compensation?
An employee is covered by workers' compensation the second he begins his employment. You might even be covered if you are injured in a pre-employment physical.
-Can an employee lose his job for filing an Illinois workers' compensation claim?
No, under Illinois law, an employer cannot fire an employee for filing such a claim.
-Can a worker file for Illinois workers' compensation benefits if they do not live in Illinois?
Yes as long as they can show that Illinois has jurisdiction over their case. They can show this by proving that the accident happened in Illinois, the principal place of employment is in Illinois or the contract for hire was inIllinois. If the accident was in Illinois then the Illinois Workers' Compensation Commission will have jurisdiction. For the other factors an analysis by an Illinois workers compensation lawyer is required.
-Why can't I sue my employer in Illinois courts for my injury?
Employers provide workers compensation to their employees as an exchange for the employees giving up their rights to sue the employer. Employees receive the benefits of the workers compensation plans instead of being able to sue. Please note that in rare exceptions you can sue employer so it is always best to check with an Illinois attorney before determining that you can't sue your employer. If a third party hurts you while working (e.g. you are hit by a car while working) then you can sue them.
-Am I covered going to and from my place of employment?
If the travel is in the course of your employment and it arises out of your employment then you will be covered. Usually in Illinois if you are just driving to or from work and have an accident it will not be considered a workers comp case. However, there are many exceptions to this rule so always consult with an Illinois lawyer if you are hurt going to or from a job.
-What is "permanent total disability" (PTD)?
Permanent total disability is a lasting, permanent disability that is the result of the work injury sustained by the worker and prevents the injured Illinois worker from returning to any gainful employment.
If you have questions, just click on our contact link and ask or give us a call. We are happy to answer anything.
Although every Illinois workers compensation case is different, the following is a list of the typical process in an Illinois job injury claim:
- Accident: An employee has either a specific accident on the job or realizes that they have suffered an injury through repetitive trauma.
- Notice: Once an employee knows or reasonably should know that they were injured on the job they are generally required to notify their employer within 45 days, although it is best to do so as soon as possible. Notice to an employer can include them being aware that the worker is treating for the specific medical condition.
- Medical treatment: As soon as an injured worker knows that they have been injured it is highly advisable that they receive medical treatment. The employer is responsible for 100% of all reasonable and related medical care. This means that a worker is not responsible for co-payments or out of pocket expenses.
- Obtaining a lawyer: Although this is not required, it is highly recommended that an injured worker retain a lawyer so they can focus on their medical treatment. The lawyer will insure that the worker gets all of the benefits that they are entitled to under the law. In addition, workers' compensation lawyers in Illinois are not paid by the hour, but rather only receive compensation if they can secure a settlement at the end of the case.
- Payment for lost time: If a worker is unable to perform their duties and the employer can not accommodate light duty then the injured worker is entitled to temporary total disability benefits for their time off work.
- Independent medical examination: At any time the employer is entitled to send the injured worker to a physician of their choice.
- Arbitration: If at any point the employer does not provide the medical or wage benefits that they are obligated to give to the injured worker or if case can not be resolved by negotiation, then the injured worker's lawyer will file a petition for arbitration and an Arbitrator will resolve the dispute.
- Maximum medical improvement: At some point a doctor will tell an injured worker that they are as good as they are going to get and discharge them from medical care with no need for further treatment.
- Negotiation: Once an injured worker has finished their medical treatment, their attorney will gather the medical records, evaluate them and attempt to negotiate a settlement based on their review of the injury.
- Appeal: If the case is arbitrated and either side is not happy with the result they can file an appeal to a three panel board of Commissioners that will conduct a review. From there a party can appeal further to the Circuit Court, Appellate court and possibly the Illinois Supreme Court.
Please remember that every case is different and you should consult with an Illinois workers compensation lawyer if you have any questions. In addition, it is important to know that a new accident to a previously injured body part is considered a new accident which may require filing a new claim.
An employee at a retail store recently injured herself while opening the front door of the store. She was holding the door open for a customer when the wind caught it, wrenching her shoulder. The question is whether it’s a work injury that is covered by her employer’s workers’ compensation insurance. We believe that it is.
Not only was the employee at work when she injured herself, but she was performing her job. Even if her job duties didn’t include holding the door for customers, she was arguably acting within the scope of her job and doing it for her employer’s benefit. All of these things support the fact that the injury occurred in the course of her employment.
An argument against benefits would be that anyone can hurt themselves when the wind catches a door and that this employee was at no greater risk for this injury than members of the general public. This is a common (and valid) argument that is used to take an injury out of the realm of workers’ compensation. Examples include a trip and fall down the stairs for no reason, a heart attack, and other things that can happen anywhere to anyone..
However, in the specific case we’re talking about, the employee was working on the floor of a retail store. The argument that the injury could happen to anyone in the general public won’t work because pretty much anything that happens to an employee on the floor of the store could just as easily happen to someone in the general public. So, it’s sort of an exception to the exception.
Also, this particular employee perhaps was at greater risk than the general public. Maybe she was required to open the door much more often than someone in the general public, or maybe that she was required to do it in a certain way or do so quickly, as part of the customer service requirements of her job. Either way, if we had this case, we feel that we could make a strong argument for benefits for this injured employee.
If your benefits are initially denied, whether you hear that from your employer or the insurance company, you don’t have to take their word for it. There are often two ways to look at an injury like this, and it’s up to the arbitrator (judge) to make the final call.
It’s really important to give your lawyer a detailed description of your job duties in cases like these. Not just what you do, but how often you do it and what unusual happened on the day you got hurt.
I was called by a truck driver in Chicago who got in an accident while driving in the rain. A woman cut him off and slammed on her breaks. He had two choices: 1. Crash in to her and probably kill her; or 2. Slam on his own breaks and risk jack-knifing.
Thankfully he chose choice number two. Unfortunately he did jack-knife and crashed his truck. In the process he severely injured his back.
He went to the hospital right away and told the doctors what happened. His employer notified the workers’ compensation insurance company. They promptly sent him a letter stating that they had investigated his claim and have determined that his accident did not arise out of and in the course of his employment so they were denying his claim.
In plain English that means that they concluded he was not injured while working. Now they never talked to him and there is a police report that shows what happened. He was freaking out because his hospital bill is huge and he’s been without pay for six weeks. “How is this even possible?” he asked me.
The insurance adjuster had simply sent him a form letter. There was, of course, not investigation at all. But this is what these guys do. It’s unethical, creepy, disgusting, etc. You wonder how they can sleep at night when they treat people like this.
But the reality is that Illinois workers’ compensation laws are fair and good for a legitimately injured worker. This truck driver simply needs to hire an attorney and have his case formally filed. There is no rational for their actions other than to try and frustrate you.
It’s just so disgusting and maddening on so many levels. Our job though is to take the emotion out of a case and focus on getting you results. In a case like this it means getting the caller the medical care he needs as well as all of the back and future pay he is entitled to. For something this egregious, a simple phone call after the case is filed will usually do the trick, but if not we’d file for a petition for immediate hearing before an Arbitrator to force their hand.
So the answer as to what to do is not to panic. Just recognize that it’s a solvable problem and then work toward making that happen. That sounds overly simple, but it’s the reality of how this business works.
Most of my readers know that total lawyer fees in any work comp claim in Illinois can never exceed 20% of what is recovered for you. That’s true even if you switch lawyers. The two firms can fight over who gets what from that 20%, but your bottom line will never change.
What some readers don’t know, including one that e-mailed me, is what are the reimbursable costs for a case?
Every retainer agreement for an IL work injury case is the same as we are all required to use the form provided by the Illinois Workers’ Compensation Commission. The form is very vague and says a worker will pay “all costs and expenses of advocating” the claim. So what exactly does that mean?
In most cases it just means that when we send a subpoena to obtain your medical records, at the end of the case we will get paid back those costs. The same is true if we have to pay a doctor a fee for giving his deposition or a court reporter for a transcript. Once in my career I had to fly out of state to take a deposition as my client was injured in Illinois, but treated with a doctor in Kansas where he lived. I of course got reimbursed the cost of my flight and a rental car.
Any lawyer with a sense of decency will of course do what they can to keep expenses down. In that case where I took the flight, I booked it months in advance to get a good rate and used a coupon for the rental. I also arranged the deposition so I wouldn’t have to spend the night in KC which of course saved more money for my client and allowed me to sleep in my own bed.
Now I probably could have charged for the meal I ate that day (I didn’t, having great barbeque was reward enough) or even my el train fair to the airport, but in my opinion that’s somewhat petty. I have heard of some firms charging for stamps for the letters they mail or for making copies, but that too in my opinion is ridiculous and just the cost of doing business.
You have a right to ask your attorney for a breakdown of the expenses and you don’t have to wait until the case is over to request that. In addition, I would imagine that most lawyers would have the courtesy to tell you what something will cost before they spend their money because they are really spending your money. We certainly do that before we pay a doctor for a deposition because those costs could be around $1,500 or more.
Bottom line is that some people have fears that they won’t be able to afford a law firm or their fees. When it comes to Illinois work comp that is simply not true. On average I’d estimate that most cases have less than $100 in expenses and I don’t think I can recall one where I advanced more than $4,000.00 and that was an unusual circumstance. But it’s good to be concerned about these issues and ask questions. The clients that have the worst experiences are typically the ones that don’t ask for explanations or express their concerns. It’s your life and you need to look out for you.
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.
“It’s under investigation” Delay, delay. “We are waiting on some records.” More delay. “It takes a while to process your information in our system.” “We’ll let you know when we make a decision.” “I’m sorry you haven’t gotten your check, I’ll look in to it.” More delay.
Does any of this sound familiar to you. I’ve noticed an incredible uptick in insurance companies messing with the lives of injured workers for no reason. They aren’t approving surgeries even though every doctor says it’s needed. They’ll pay for physical therapy, but not a MRI. They’ll pay your medical bills, but not your lost time. They won’t pay anything at all. They won’t return your phone calls.
It seems to be a new and aggressive strategy to try and frustrate injured workers. It’s not that there haven’t been unreasonable delays on prior cases, it’s that the amount of times that it’s happening has greatly increased.
And it doesn’t matter how strong your case is or how weak their case is. They are just being ruthless.
The silver lining is that we’ve had some great success in getting these denials turned around once we’ve gotten involved, but on some cases we’ve had to go to trial when there doesn’t appear to be any valid reason for them disputing your care or benefits.
It’s not that you can’t win, it’s that they’ll put a hurting on you if you don’t have a savings or others to rely on. In turn this can make your medical condition worse because the stress of it all can lead to further problems.
We are monitoring this closely. The best thing we can do on our end is be very stern and file for penalties and fees if something unreasonable happens. They are trying to send a message that they won’t make any case easy. Work comp law firms in Illinois need to send a message back that if you mess with our clients and break the law, it will not be tolerated.
This certainly isn’t over and bears watching in the coming months. We’ll report more as we see things develop. But if you’ve had this happen to you, we’d love to hear your story. And of course, if you need any help please let us know.
Workers’ compensation is there if you get injured on the job. It pays your medical bills and a portion of your wages while you recover. Illinois is considered a worker-friendly state when it comes to getting claims and benefits approved, but not all cases are a slam-dunk.
There are some situations where an injury, even though it happened at work, might not qualify for workers’ compensation. A recent example involves an employee who fell while using his wheelchair on a ramp. He was out of the office but on a work field trip with fellow employees. He asked a co-worker to help him up the ramp and ended up falling and getting injured.
In a case like this, some things are clear – he was injured and he was in the course of his employment when injured. The issue is whether the injury is related (or related enough) to his job. If an injury is just as likely to happen to someone in the general public, meaning your job didn’t put you at a higher risk of getting that injury, then a claim can be denied. Examples of these common risks are a heart attack, an insect bite, or tripping up the stairs. All of these things can and do happen to everyone. The key is whether there was something specific to your job (unique duties, uniform requirements, physical work environment, employer’s particular demands, etc.) that put you at an increased risk for your particular injury.
So in the wheelchair situation, the question is whether there was any increased risk for the employee caused by his job. You could say that he’s at an increased risk because he’s in a wheelchair, but on the other hand you could say that it’s no different than tripping up the stairs. In cases involving falls on stairs, attorneys look for whether there was a hazardous condition on the stairs, whether the employee was in a hurry doing their job, whether they were carrying something that made it more likely they would trip, etc.
Many of these cases can go either way. A good workers’ compensation attorney will investigate all the angles of your injury to see whether you were under any increased risk because of your job. Just because an insurance company denies a claim based on the fact that there was no increased risk doesn’t mean that’s the final answer. It’s their job to deny claims that are in the gray area, just like it’s your attorney’s job to fight for your benefits.
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.
One of the biggest mistakes I can make as an attorney is to assume that a caller or reader knows something that I consider to be a basic fact. It’s not your job to know what the law is, but instead it’s my job to educate you on the law and advocate your interests.
I (wrongfully) have assumed that everyone who calls us understands that there is no fee unless we are successful on the case. One caller knew that our fee is 20% of what we get for them as a settlement, but still thought that they’d have to put money down up front. It was kind of sad actually because the insurance company had really been taking advantage of him including not paying him his TTD benefits for the time he missed from work. Since he didn’t have money coming in, he didn’t think he’d be able to afford an attorney so the cycle of abuse by the insurance company continued as he hesitated calling a lawyer. He stumbled upon our blog and fortunately reached out to us.
So to be as clear as I can, you should never, ever have to pay a lawyer even a penny up front for an Illinois workers’ compensation case. Period. You should never not hire a work comp law firm because you don’t think you can afford it. It’s a non-issue.
On top of all of that, you’ll always end up with more for a settlement when you have an attorney in your corner. And that doesn’t even touch on how we can prevent some of the abuses or out and out violations of the law (e.g. a nurse case manager talking to your doctor) that take place.
None of this guarantees you a result on your case and we typically find that a law firm that does promise an outcome is usually sketchy. But you should never fight with one hand tied behind your back and that’s what you are doing if you don’t get representation. And you certainly shouldn’t put yourself in that situation because you don’t think you can afford it.
I’m a big believer that small sample sizes don’t mean much. For example, a basketball player might score 20 points in three straight games, but that does not mean that they are a 20 point scorer, especially if over a full season they average eight points.
So when I see an uptick in certain types of calls I usually relate that to a coincidence. That’s probably true in this case, but I do find it odd that I’ve had more people call me in the last month telling me that they were robbed at gun point than I did in the previous 12 months.
Whatever the reason for this happening, it must be a frightening thing to go through. When cutting to the chase, as most callers want to do, the question is usually, “Can I get Illinois workers’ compensation benefits?” The answer depends on the person.
Most people tell me that they are too scared to return to work. I don’t blame them. I would be too. But just like you can’t take yourself off work for a back injury without seeing a doctor and expect to get paid, you can’t do that for a psychological injury either.
So if this does happen to you and you are having nightmares, can’t sleep or feel really anxious about going back to work, the proper thing to do is get medical care. First off it’s for your health. Second, if you do want workers comp benefits, you need a doctor to give you a diagnosis and recommendation. That’s how the system works.
Some people are able to get therapy and head back to their old job. Others are never able to. In those cases you often can get vocational rehabilitation which is job search assistance paid for by the insurance company. It really depends on your background and work capabilities.
But the bottom line is that if you do have this happen, you have options. Just like any other work injury, all of your bills will have to be paid for by the insurance company. It doesn’t matter that you don’t have a physical injury. All work related injuries are covered under the Illinois Workers’ Compensation Act. The worst thing you could do is ignore the problem. You’d go to a doctor if a bone was sticking out of your leg. You should do the same if you need any other type of help.
Workers’ compensation is a system of benefits for workers who are injured on the job. In Illinois, these benefits include payment for 100% of your medical expenses (as long as they are reasonable, as well as related to your injury). Benefits also include payment of 2/3 of your wages while you are out of work recovering, and if your injury is permanent, you’ll likely get some sort of lump sum settlement at the end of your recovery when you’re as good as you’re going to get.
Workers’ compensation is an exclusive remedy, meaning it’s your only option. Workers’ compensation provides benefits to workers no matter who was at fault for the injury, and you do not need to go to court to get them. Most Illinois employers carry workers’ compensation insurance that pays out these benefits. In exchange, your employer is protected from lawsuits by injured employees.
Despite the fact that it is an exclusive remedy, there are a few situations in which an employee can bring a lawsuit after a workplace injury. One is called dual-capacity. If your employer has a second, distinct relationship with you (legal relationship), then you might be able to sue them in that second capacity. For example, if they own the building where you were injured, then they potentially wear two hats, one as your employer and another as a landowner who owes you a duty to keep their premises safe.
In order to bring a lawsuit under this dual-capacity exception, you’ll have to prove two things. First, you will have to show that there was a second capacity or relationship that is separate from their role as your employer. Second, you have to show that your injury was caused by the defendant when they were acting within that second capacity or role. If the roles are one in the same, it will likely be deemed a work injury and fall under workers’ compensation.
These cases are rare but worth noting. It comes down to the specific facts of your individual situation, so feel free to give us a call if you have questions about something that has happened to you.
The general rule for workplace injuries – and one of the main ideas behind the workers’ compensation system – is that you can’t sue your employer if you get hurt on the job. In exchange, you get a more reliable and efficient way to get compensation for the effects of your work injury. You are entitled to benefits, usually paid by your employer’s workers’ compensation insurance company, such as coverage of your medical expenses and payment for lost wages if you have to miss work while you recover. Ideally, this compromise works to reduce any potential conflict in the workplace that would be caused by litigation, and it helps get injured employees back into the workforce.
While the rule against lawsuits is fairly broad, it does not apply in every single situation. There are some instances in which you can sue your employer after a work injury. It’s definitely is the exception to the rule, but it’s worth mentioning.
One example of an instance in which you can bring a personal injury lawsuit for a workplace injury is if that injury was intentionally cause by your employer. The bar is pretty high for proving that it was intentional. For example, if your employer is lax about building and equipment maintenance, and you get hurt by some broken equipment, it probably won’t rise to the level of intentional harm. On the other hand, if your employer knows you are working with a hazardous substance and it likely will cause you to get sick, but they don’t tell you and don’t protect you, that might be bad enough to fall into the intentional category.
Assault is a clearer example. If you and your boss get into an argument, and it leads to a physical fight, and he seriously injures you in that fight, it’s likely an intentional harm. It may have happened at work, but the fact that it was intentional takes it out of the realm of workers’ compensation. Instead, it would fall into the more general personal injury category, where lawsuits are allowed.
These same rules apply to injuries caused by fellow employees. If it was accidental, or even negligent, an injury caused by a fellow employee would fall under workers’ compensation. However, if the injury is intentional, you may be able to bring a lawsuit for personal injury. When an employer intentionally harms an employee, they’re considered to be acting outside the role of employer and no longer get the protection from lawsuits that the workers’ compensation law provides.
If you get hurt doing activities of every day life that aren’t part of your job duties, you typically don’t have an Illinois work comp case. For example, if you take a shower before work at your house and fall, that wouldn’t be a case because (presumably) you’d be taking a shower any way and for the most part that’s an activity that everyone does. The same would hold true if you got injured on the CTA on your way in to the office or while driving your car.
The exception to this rule is if you are a traveling employee. A Rockford man called us recently. He was traveling out east for business and was taking a shower at the hotel he was staying at. The hotel didn’t have a rail or a slip mat and during the shower he lost his balance and landed hard on his back. When he got back to Illinois, a MRI revealed a herniated disc in his back. He has a great case.
The reason his claim is legit is because he was injured while on the road for his job. Generally speaking, Illinois Courts have ruled that being on the road puts you at an increased risk of injury, so any activity that is reasonably foreseeable to your employer that you’d be doing would be a case if an injury occurs. It’s certainly foreseeable that a worker would take a shower.
So what isn’t foreseeable? There is no hard and fast rule on that, but for the most part reckless activity will disqualify you. In other words, if you get really drunk and fall down, blowing out your knee in the process, that likely wouldn’t be covered. On the flip side, if you go to a work convention in Hawaii for example, it’s foreseeable that you’d go swimming in the ocean during your free time. If a shark bit you, that injury would likely be covered under the Illinois Workers’ Compensation Act.
The theory behind all of this is that your employer is benefitting from you taking the trip. The actual shower you take may not be in any way different than the one you take in the comfort of your own house, except that you are away from home in what is presumably an unfamiliar environment.
In reality it may not be the fairest law, but our job as attorneys for injured workers is to represent the best interests of our clients. There are plenty of rules that go against injured workers (e.g. you can’t win a stress case typically) so we aren’t going to complain when something goes in the favor of our clients.
Do remember, the act of getting hurt is just one element of your case. You still have to prove everything else. So timely medical treatment is important. Reporting the accident to your boss is important. Having a doctor that relates your physical problems to what happened is important. But at the same time, don’t assume you have no rights because you were simply washing your hair.
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.
If you are considered a “traveling employee,” injuries away from your workplace or work site can still qualify as a work injury for the purposes of getting Illinois workers’ compensation.
In order for any work injury to be covered, it needs to happen in the course of your employment. For most employees, once they are no longer at work, they are no longer within the course of their employment, unless they are running an errand for their boss or something similar. Generally speaking, you aren’t considered in the course of your employment when you are commuting to or from your job.
However, that changes if you are considered a traveling employee, which is a broader category than you might think. You don’t have to be a flight attendant or a traveling salesman to qualify. If you are required to drive around during the day as part of your work, then you’re likely a traveling employee in the eyes of Illinois workers’ compensation law.
In a recent case, a cleaning person was at home during her break between cleaning jobs. She fell on her way back to her car after her break was over. She slipped on the public sidewalk outside of her home, next to her driveway. She was not paid during her time at home and she was not at a job site, but the court found that she was still in the course of her employment because she was walking to the van that took her to work. Had she not been a traveling employee, it would not have been a work injury.
Each case is different. The key things here were that the cleaning person was a traveling employee, that she was on her way to her next job, and that in order to do that she needed to walk to the van. Although anyone can slip on the sidewalk, the court said her risk was greater because she was a traveling employee.
If you have a question about your work injury, or what it means to be a traveling employee, please contact us.
I got a call the other day from a man who was very upset. He was at work two weeks ago and apparently a large steel beam fell and missed crushing him by about two feet.
He wanted to bring a work comp case because he almost died and he feels that someone should be responsible for this.
Keep in mind that he hasn’t seen a doctor nor has he missed any time from work. I asked him if he was afraid to return to work or felt the need to see a psychologist and he gave me an emphatic no.
So the reality is that this was a close call, but no harm was suffered at all. As a result, he has no case.
What he can do is file a complaint with the Occupational Safety and Health Administration (OSHA) but all that will do is fine the company and hopefully create a safer work environment.
He’s really a lucky guy. I understand why he’s mad and wants to hire a lawyer, but I’d be lying to him if I said there was anything we can do. I assure you though that he’s happier to be injury free and have no case than to be crushed by steel and have a claim. The only one that loses in this situation is me as a lawyer and that’s a good thing. I’ll take a healthy caller over a big pay day any day of the week.
A recent caller to our office blew out his back when he was bending down to get ready to lift a skid of paper. Here is how he described his injury in an e-mail:
“I was bending down to lift some paper off of a skid when my back popped.”
Here is how he described it when I called him.
“I bent down to lift some paper, I grabbed the skid and as I adjusted to stand up, my back popped.”
Those are slightly different, but the first description isn’t a valid Illinois work comp case. The second one is.
Getting injured simply in the act of bending isn’t a work related injury. You bend everywhere in life and just because you were bending while at work doesn’t make it a case unless something about the job contributed to the accident. In the 2nd description, he had grabbed the skid already. That was unique to his job and part of the injury can be attributed to that.
This poor guy has a herniated disc and is probably facing back surgery. An accurate description can literally be the difference between winning and losing and in this case it’s likely a difference of a few hundred thousand dollars or more given how expensive his medical treatment will be.
On another note, this is exactly why you don’t give a recorded statement. An experienced insurance adjuster would narrow down what was said and end the case. I was skeptical based on the e-mail, but when I talked to this worker I could tell he was sincere and just not very descriptive in his e-mail. The fact that he had worked a labor job for over 20 years without filing a case only added to his credibility.
So if you are asked to give a statement, treat it like a criminal matter and exercise your right to remain silent. Talk to a lawyer and let them speak on your behalf.
If you get hurt at work while on a break, you can still be eligible for workers’ compensation benefits. Illinois has something called the personal comfort doctrine. It’s the idea that even when you’re on break, you can still be within the course of your employment. Breaks are part of the workday, and most employers expect that you will take bathroom breaks, smoke breaks, lunch breaks, etc.
So, if you get hurt while on a bathroom break, in many cases you’ll still be covered. Illinois workers’ compensation pays workers a portion of their lost wages if they are unable to work while they recover. It also covers all reasonable and related medical bills.
However, this rule doesn’t usually apply if you are no longer on your employer’s property. If you leave work and drive to get lunch, an accident on your way is likely not covered. In a recent example, an employee slipped and fell in the bathroom at work. She hit her face and required a lot of stitches. Her claim for workers’ compensation will likely be denied, not because she was taking a break but because the bathroom was outside of her employer’s office suite. The bathroom was shared by several other companies on the same floor of the office building. The key is in this particular situation is that her employer does not own or maintain the bathroom where she was injured.
So even though employees are potentially covered while on breaks, they were not covered in this instance because they left the employer’s office suite and used a bathroom that was not owned or maintained by the employer. A lawsuit against the building owner, manager or landlord is possible. It would be a personal injury lawsuit (called a third-party claim) rather than a workers’ compensation claim.
Hopefully, this wasn’t too confusing. If you’re wondering whether your work injury falls into this exception to the exception, feel free to call. Our goal is to explain things in a way that makes sense to you.
The general rule is that your injury is covered by your employer’s workers’ compensation insurance if it happens while you’re doing your job. The injury also has to be related to your job. It sounds straightforward, but many cases fall into a gray area. For example, what if you have arrived at work but get hurt before you officially clock in?
It probably depends on what you were doing when you got hurt. If you were getting out of your car, your claim might be denied because you weren’t yet doing anything work related (although it depends on the details, such as whether your employer owned the parking lot, required you to park there, maintained the lot, etc.). If you’re already inside the building, you have a better shot of being covered for an injury.
The other thing to consider is what actually caused your injury. Even if you had already clocked in, your injury has to be related to your job in some way. It’s usually clear case when a worker is injured while climbing a ladder, lifting heavy equipment, or inhaling toxic fumes. But sometimes a worker is injured in a way that is less obvious, such as tripping up the stairs.
When it comes to an injury like this, one that could happen anywhere to anyone, you have to prove that you were at a greater risk than the general public because of your work. Maybe you were carrying a stack of files up the stairs, or maybe your boss needed you right away and you were hurrying. Maybe there was something about the stairs that was unique to your place of employment.
These cases really do come down to the facts. It’s important to get advice from an Illinois attorney who has seen hundreds of cases and knows what to look for and how to prove it. If you have questions, feel free to give us a call.
There are exceptions to everything in the legal world, and Illinois workers’ compensation is no different. Each case has its own unique facts. Even two claims that might seem identical at first glance can become very difference once the entire situation comes to light. For example, imagine two separate car accidents during an evening commute. Both happen after work as the employees are driving home for the night, both drivers get hit by a truck that blows a red light, and both suffer serious back injuries.
At first glance, neither employee would appear to be eligible for workers’ compensation benefits (which include payment for lost wages and medical bills). Accidents that occur during a worker’s commute to and from home generally aren’t considered work injuries for the purposes of getting benefits through an employer’s workers’ compensation insurance. In order to be considered a work injury, it must “arise out of and in the course of” one’s employment. Commutes are generally outside the scope of employment.
Now, imagine that one worker was driving from the restaurant where he worked, back to his home, like he did every day when his shift was over. The other worker, however, was driving home from a location where his employer specifically required him to work that day, a location that was not his usual work site. These additional facts would potentially make the second employee a “traveling employee” and entitle him to benefits for his injuries.
Traveling employees are not only those who travel routinely but those who are required to travel, close or far, frequently or infrequently, for their employer. The rationale is that these employees would not have been where they were if their employer hadn’t required it. So, while a daily commute generally doesn’t count, the rules might be different for traveling employees.
The main point in all this is that you can’t assume your case fits the general rule. There are often several exceptions that might apply in any given situation. Don’t assume you shouldn’t file a claim just because you heard that injuries during a commute don’t count. Your Illinois workers’ compensation attorney’s job is to get you all the benefits you’re entitled to under the law.
If you pass out at work and get hurt, it’s not automatically covered under Illinois workers’ compensation. You have to look at what caused you to pass out, and what caused your injury when you (presumably) fell as a result. Generally speaking, you are only covered for an injury after passing out at work if your job somehow increased your risk of injury. What happens if you hit your head on something on the way down?
In Illinois, workers who are hurt on the job are entitled to benefits such as payment for lost wages if they can’t work and coverage of all reasonable medical bills. In order to get these benefits, an injury must arise out of and in the course of your employment, meaning that it doesn’t just happen at work but it is somehow related to your job.
If you pass out at work and fall to the ground, you’ll likely suffer some sort of injury. If the reason you passed out is because of something at work, such as fumes, heat, etc., then it’s almost certainly a work injury. The trickier situation is when you pass out because of some pre-existing medical condition that you have, or for no known reason. It can still be considered a work injury if something in your work environment causes you extra harm when you fall.
For example, if you pass out while on a ladder, your fall is going to be much worse than if you were standing on the ground. If you were on the ladder doing something for work, then you’ll be able to get benefits. If you pass out while working on a machine, and fall into the machine, your injuries would be work related in a way that simply falling on the floor would not.
If your work injury is caused by a risk that is not specific to your job but rather a risk that the general public faces equally, such as a hard floor, then passing out and hitting the floor might not be covered by workers’ compensation in Illinois. But if there is something that increases your risk of injury, and that something is specific to your employment, then that’s a different story.
There’s a requirement that a work injury must arise out of and in the course of your employment in order to be covered by workers’ comp. In other words, just because you’re at work doesn’t mean you can get benefits for an injury there. You have to be doing something related to your job. But what happens when it’s work-related but not something your employer asked you to do? What if you were doing something other than your assigned work duties?
The answer is that you should still be covered, as long as the work you were doing was for the benefit or your employer. If you were helping a co-worker with a job on their machine and got hurt, you should still be covered. If you saw something on the floor and decided to pick it up and put it away, and hurt your back lifting it, you should still be covered.
In Illinois workers’ compensation law, fault does not matter. If you were being careless, that alone will not disqualify you from receiving benefits for your work injury. However, if you were doing something for your own benefit, it may fall outside the “scope” of your employment. For example, if on your lunch break you decide to do a quick work out, or climb up to the roof to check out the view, those things are probably not within the scope of your employment. If you get injured while doing something along those lines, your claim will likely be denied.
It’s important to know that insurance companies often deny claims that end up being perfectly valid, because it’s their job to minimize what they pay out. So don’t assume that because your claim was denied that you have no chance. Ask an experienced attorney who can accurately tell you if you have a claim worth pursuing.
The main thing to remember is that when you are engaged in an activity that is for the benefit of your employer, or in the furtherance of their business, even if it wasn’t specifically assigned to you or expected of you, any resulting injury should be covered by their workers’ compensation insurance.
Illinois has very strong work comp benefits for injured workers. But you have to be careful not to be your own worst enemy.
Take for example a guy that called me who was out on work comp after having a knee surgery. He was receiving pay from the insurance company and at the same time started a new job within his restrictions. So he was getting paid from that new company as well. This is fraud on his part as he’s double dipping. Work comp benefits are designed to replace income that you’ve lost. His work ethic is admirable and I believe him when he told me that he didn’t know it wasn’t allowed, but he really put his case at risk. The bigger issue is that he could have been charged with stealing from the insurance company and been arrested.
A worse example was another caller that did the same thing, but was also working beyond his restrictions of no lifting. He felt the pay was too good to pass up, so he started a job that required him to move heavy equipment. So he was telling his doctor one thing, but doing something else. He got caught on surveillance video and his benefits were terminated. His lawyer couldn’t do anything and quite honestly, neither could we (we did not accept the case). This guy will be lucky if he doesn’t get arrested for work comp fraud.
You can do some work while you are out on work comp. For example, even people that are permanently disabled have been able to do occasional work here or there and not risk their benefits. If you help out a friend for a day or two and don’t do anything beyond your medical restrictions, you probably don’t have much to risk.
But if you take on a new job and still get benefits, you could be committing fraud. In the very least, you could screw up your case.
So the bottom line is that you don’t want to risk your health or benefits. If you are thinking about taking on a new job, ask your attorney first if it’s okay to do so. Often it is, but you should weigh all the potential downfalls and make an educated decision before you do anything.
A reader sent us the following question about his work injury:
I was injured at work. The company I work for took full responsibility for my accident. Workers comp is paying all my medical bills and my employer is paying all my wages. I want to know if you get anything for being hurt? I cant do any of the things I use to. The accident happened 3 weeks ago and I recently found out it could be 6 more weeks before I am off light duty. So basically if I lose no wages and have no medical bills do I even have a workers comp case?
I think this very nice guy was simply confused about how the system works. Under Illinois law, you get three benefits if you are hurt on the job. The first is payment of 100% of your reasonable and related medical bills. There should be no co-pays or out of pocket expenses for you. Not even a penny. It does have to be reasonable which means that the insurance company doesn’t have to pay for therapy and treatment that is not generally accepted in the medical field.
The 2nd thing you get is payment for your lost time, also known as temporary total disability benefits (TTD). As happened in this case, the employer can choose to continue your regular salary. They sometime do this as an act of good will and other times because it saves them money.
The third benefit comes at the time you are medically ready to settle your case. This is called permanent partial disability or PPD. The amount of medical care you’ve received and the time you’ve missed from work is a factor in how much your case will be worth. And if those items aren’t paid for already, they can be part of a settlement. But them having already been paid is a good thing and does not lower the value of your case.
The only times you wouldn’t get a PPD settlement would be if your injury is very minor or there is no possibility of any future problems. In other words, if you sprain your finger or get a black eye, you likely won’t get any PPD, at least not beyond a couple of hundred dollars. But most cases are worth somewhere between a few thousand and a few hundred thousand (higher end if you suffer a permanent wage loss or inability to work).
But most cases have some value. It’s not normal for a case to be going as smoothly as this one appears to be and there is of course no guarantee that the insurance company won’t cut off his benefits. But whatever happens won’t change the fact that there is a case here and it does have some value.
To have a workers’ compensation claim for stress, you need to have something shocking and unusual happen to you. Here’s an e-mail from a reader that would qualify:
I work at a video store. We were robbed by a robber who has been sticking us up for the last few years. I was working by myself, without security present and he put a gun to my head. I want to know what my options are, I do not want to return there out of fear of being robbed again, and I want to know what are my options for the mental stress.
Most stress cases aren’t covered under the Illinois Workers’ Compensation Act, but having a gun pointed at your head is something that doesn’t happen every day. If it creates a stress in you to the point that you need to see a psychologist, the insurance company would have to pay for that treatment. And if that doctor thinks you shouldn’t return to work, the insurance company will have to pay you TTD benefits.
General stress typically isn’t covered and in some cases, if you work in what is considered a “safe” neighborhood, getting robbed wouldn’t be covered either. But a case like this, where an employee has been robbed over and over and had a gun pressed against his temple, a stress case should definitely be covered.
Our advice to this gentlemen was the same that we’d give to anyone else in his situation. Get with a doctor who knows about these problems and get help. You wouldn’t delay going to the doctor if you broke your leg. In the same vein, you shouldn’t delay seeing a psychologist when you have an “I can’t take it anymore” feeling.
Assuming that his doctor tells him not to return to work at that location, the company can either place him at a safer store or the insurance company can help him find a new job at a different company within his restrictions.
Bottom line is that we have strong laws for workers in Illinois and while not every situation is a case, this is one that certainly is. He has rights and if this were to happen to you, you’d likely have the same rights as well.
Some falls at work are what we call “compensable,” meaning they count as a work injury and you can get compensation. The compensation in Illinois includes coverage of all your related medical bills and disability checks if you’re too injured to work.
Some falls at work are not compensable. The difference is whether the fall is caused by your job. Illinois law says it must arise out of and in the course of your employment. Basically, this means the fall has to be related to your job.
You don’t have to be injured by workplace equipment, and it doesn’t have to be your employer’s fault. You can trip over your own two feet, or trip over something because you weren’t watching where you were going, if you can also prove that something unique to your job contributed to your fall.
For example, if you trip going up the stairs, you are going to have to prove that your job made you fall. It could be because there was water on the stairs, or because you were rushing to a meeting, or because you were carrying a stack of boxes, or files, or because your boss needed you quickly. Any of these reasons should make your injury compensable.
If you simply tripped up the stairs, for no reason, then you’re going to have trouble getting benefits. The reason is because you weren’t at any greater risk for tripping and falling than the general public. Anyone can trip and fall at anytime, anywhere. Your job did not make you more susceptible.
Even in cases that should be compensable, the insurance company can deny your claim, saying it’s not work related. Don’t take their word for it. It’s in their best interest to say that your injury didn’t arise out of your employment. If something related to your job caused your fall, an Illinois workers’ compensation attorney can push back and fight for your benefits.
What should happen is often quite different from what does happen. There are a couple of things to consider if you get fired after a job injury in Illinois. First of all, it shouldn’t affect the benefits you are receiving through workers’ compensation. Second, your employer can’t fire you based on the fact that you filed a claim for workers’ compensation.
Your benefits should not get cut off. Illinois workers’ compensation is meant to help you with the costs of your injury and get you back into the workforce. You can get temporary total disability payments, which is like a continued paycheck, if you can’t work because you are recovering. If your employer can provide some “light duty” work, you can still get checks if the pay for the light duty is less than what you were earning when you got hurt. Also, all of your related medical bills should be covered.
So even if you get fired, these benefits should continue. Even if you were fired because of something you did, your workers’ compensation benefits should continue while you’re recovering from your work injury. Once you are at maximum improvement, then your TTD benefits will end. If you are told otherwise, check with an Illinois attorney.
The other important thing to know is that your employer is not allowed to fire you because you made a claim for workers’ compensation. Illinois law makes it illegal for them to retaliate in this way. If you do get fired for asserting your right to benefits, you will have an additional claim against your employer.
One of the main requirements for getting workers’ compensation benefits in Illinois is that the injury must occur “out of and in the course of the employment.” It’s the law’s way of saying that your injury must be caused by your job. If it’s not, then you aren’t entitled to benefits, which include payment for lost wages and coverage of all related medical expenses.
Traveling employees are a unique group because they are often “in the course” of their employment even when they’re not at the workplace. A traveling employee is someone who travels from client to client or job to job, for example.
A recent Illinois case came out in favor of a traveling employee who was in front of her home, walking to her work vehicle, when she fell and was injured. She worked for a maid service and drove a work vehicle, a van, during the day. She had stopped home because of a break between jobs and got hurt on her way back out to the van.
Originally, the Illinois Workers’ Compensation Commission agreed with the employer’s insurance company that the employee was not in the course of her employment and that she was not a traveling employee. The Commission said she was not at any increased risk of falling on the driveway/sidewalk because of her job. She wasn’t carrying supplies, or actually getting into the van. Also, she was not on the clock between jobs.
The Illinois appellate court reversed the decision and said that she was a traveling employee and that she was in the course of her employment when she fell. The higher court said that she was en route to her job when she left her house to get into her work vehicle. Also, even though the conditions on the street/sidewalk were not specific to her employment, the court said that as a traveling employee she had greater exposure than the general public to such hazards.
This is yet another case that goes to show how unique each workers’ compensation case can be. All of the details of this woman’s situation were taken into account – the fact that she drove a work vehicle, that she traveled for jobs, that she fell outside of her own home, and the nature of her day-to-day work schedule.
As long as you meet the main requirement of getting a work-related injury, then you should be eligible for workers’ compensation benefits in Illinois, even if you only work part time. In Illinois, injured workers are entitled to payment of 2/3 of lost wages, meaning that if you are unable to work, you will get checks for 2/3 of your weekly pay. You also are entitled to coverage of related medical expenses.
You must be a part time employee, rather than an independent contractor. Independent contractors are not eligible for workers’ compensation benefits. Just make sure your employer is correctly labeling you. Sometimes employers use the term “independent contractor” because it’s easier and saves them some money, but the law might see it differently. The law says that if your employer has a lot of control over your work and your schedule, then you are more likely to be considered an employee.
If your part-time job is your second job, you’re still eligible if you get hurt. In fact, if you get hurt at one job, and you can’t work at either as a result, your payments for lost wages (temporary total disability payments) should be 2/3 of your combined pay. The catch is that your employer at the job where you were injured must have known about your other job.
We try to explain things in a way that makes sense, but if you have questions about Illinois workers’ compensation for part-time employees, feel free to give us a call.
We know work comp attorneys throughout the country and often refer cases to attorneys in other worker friendly states like Oregon, Georgia, Pennsylvania, Florida and New Jersey. That said, we often get e-mails like this:
I am writing out of Arizona. I have been scheduled for an IME. The first one was sent to the disability group, and they sent it back to the doctor stating that he had put more information than they needed. Some people have told me to go to the next IME and video tape the whole process this time. Is this a good idea?
The straight answer is that I don’t even know if that’s legal in AZ and since I have nothing to do with that State legally speaking, I couldn’t even begin to answer it. In general, you should look for legal advice from someone in your State.
If this was Illinois, I’d tell you not to do it because it will put the doctor on the defensive and make them think that you are crazy. They could also choose not to do the exam at all. Their office, their rules.
A better idea, considering many IME appointments are a joke, would be to bring a friend or spouse with you in to the exam and when finished immediately write down how long it lasted, what was discussed, etc.
You wouldn’t tape record your treating doctor. While the IME doc works for the company, he or she is still a physician that primarily sees patients. Videotaping would create some problems that you don’t need and also wouldn’t look great to the Arbitrator.
The other advice I’d give you is to talk to your lawyer before the exam to discuss your injuries and what questions might be asked as well as what will happen in the exam. My philosophy is always prepare for the worst and hope for the best.
The owner of a Skokie-based maid service was ordered to pay approximately $500,000 after it was discovered that she was classifying her employees as “independent contractors” in order to avoid paying minimum wage and overtime to the maids who worked for her.
Many people, including employers, use the term “independent contractor” without knowing what it actually means. Some employers use it strategically to deliberately avoid paying the higher costs of hiring an employee. Regardless, it’s not what the employer labels you but rather what the law says that matters.
The law focuses on how much control your boss has over you in determining your classification as employee vs. independent contractor. An employer cannot choose. The key is how much control your employer has over you and your work. More control means you’re more likely to be an employee. If your employer doesn’t tell you when or how to do your job, doesn’t provide you with equipment or supplies, then you might be an independent contractor. The line is fuzzy, so check with an employment attorney if you’re unsure.
In the maid service case, the employer labeled its workers as independent contractors, had them fill out independent contractor applications and sign an independent contractor contract. However, the judge in the case said that the reality mattered more, which was that the employer had significant control over the workers, regardless of what the paperwork said.
In this case, the employer chose which clients the employees worked for, dictated when the work was done, and even told them how to do their work. The workers did not provide their own equipment or supplies. What’s more is that the maids were required to sign a non-compete agreement.
All of this added up to the fact that the workers were employees. The judge said that the employer couldn’t have it both ways – calling her workers independent contractors, which implies they can work elsewhere, but then telling them they can’t work for other maid services in the area.
A reader came to us for help and raised many interesting issues:
I have been working for the same company in the Chicago area for 20 years, I injured my left shoulder doing work in January 2011. I notified my manager on monday in 2011 that I hurt my shoulder Saturday while working it wasn't until January 2013 that he filed a claim with his insurance, Gallagher Bassett service inc., I was unaware of how workers comp is handled and didn't seek treatment until late march 2013, my manager told me I would be contacted by an adjuster with instructions for treatment which is why I hadn't sought any till march, after calling Gallagher and them telling to go to any doctor for treatment. Gallagher Bassett called me today to inform me they are denying my claim and they closed my case in early march and that I have exceeded the 2 year limitation for seeking treatment. Money is an issue as I have 3 children and a wife who live on my income alone.
There are so many issues to address from this e-mail. First and foremost is that there is no two year limitation for seeking treatment. That’s just a blatant lie by the insurance company.
That said, waiting over two years to go to the doctor makes it almost impossible to prove that the need for treatment in 2013 is related to something that happened in 2011. It would be a very hard case to win. The best chance would be if an orthopedic surgeon would state that the repetitive nature of his job activities contributed to his problem. But to pin it on a specific date more than two years ago would be very hard to do as the defense would be that if you were really hurt, you would have gone to the doctor much sooner.
Beyond that, money should never be a consideration when thinking about a workers’ compensation claim in Illinois. 100% of your medical care is paid for if it’s a work related injury, even if you don’t have health insurance. Also, it doesn’t cost anything up front to hire a lawyer as attorney fees are based on a paid if you win (contingency) basis.
The reality is that this worker probably blew it by not going to the doctor soon after he knew he was hurt. It’s one thing if he was just being a tough guy. It’s another if he never went because he didn’t think he could afford it.
A reader asks:
I have a work comp case currently ongoing for two years now. I was in a car accident while on duty for work. I just finally had my Anterior Cervical Discectomy and Fusion on May 21 2013. That is 2 yrs and 36 days after the accident. Now my company is telling me it is using my FMLA during my recovery time. My FMLA is only 12 weeks per year. According to my doctor he won't even consider light duty prior to 16 weeks post op. Can I lose my job while I'm off? I've been with my company 18 yrs. Why they using FMLA for a work comp time? I'm very worried and confused.
The answer to his question is that yes he could lose his job, but it would illegal to do because he filed a workers’ compensation claim.
What he’s missing on though, is the fact that having a workers’ compensation case filed actually increases his chances of keeping his job, especially with a big injury like this.
Let’s assume that he’s not going to be back to work until January. With an injury like this he’s likely to have permanent restrictions. If he still has a job to go back to, the case will have value. But if he has no job to return to and suddenly can’t find work making close to what he used to make (this is called a wage differential) then suddenly the case could be worth a few hundred thousand of dollars.
For clients that want to keep their job, we make sure that the insurance company knows that the employer is making these threats. That allows them to make clear that if the worker is let go for missing too much time, not only might they face a wrongful termination lawsuit, they increase the value and cost of the workers’ compensation claim dramatically.
So in the end, usually we are able to get the insurance adjuster or defense attorney to convince the employer that it would be a terrible idea to let the employee go. That doesn’t guarantee anything of course and we only do it if it fits the goals of our clients, but it’s really another way that a good law firm can add value to a case that isn’t really obvious.
For you as the injured worker, the most important thing is to communicate with your attorney when these things happen and make sure that they are aware of your goals.
These two e-mails came in to our office within 15 minutes of each other. Both of these guys are workers in the Chicago area.
First we got this:
I started work as an assembler but they started moving me around to different jobs so they moved me to a machine operator with no raise, I was running the machine by myself even though it is a 3 man job, I was sealing, stacking, filling boxes and running the machine by myself but I had a sharp pain shoot through my lower back then my right leg and aside went numb so I went to 3 doctors that the job sent me to and they told me that I have a herniated disc. But they sent me to another doctor he didn’t\'t even look at me he just said that he didn’t\'t see anything wrong so he put me back on full duty and that reinjured my back but they stopped my workers compensation and now I just lost my place so i have no where to go.
And then we got this:
I injured my hip and back, lifting 60lb boxes. After initial interview I was told my case was covered by workmens Comp. after more treatment was needed I was notified that my case was no longer covered under workmans Comp.
They were both basically asking, “How is it possible that I got hurt while working and my case isn’t covered?” The answer is simple. Insurance companies have a goal of not paying or minimizing the costs of cases they have to pay on. So what they’ll do is deny a case for payment without any valid reason. Most injured workers are smart enough to call an attorney, but some will just give up because they don’t know their rights or are just too frustrated. Others don’t do anything because they think that they need money for an attorney (which they don’t).
Clearly the first one saw a hack IME doctor that denied his problems so he can keep getting referrals from the insurance company and make a ton of money. To deny that there is any problem when the MRI shows a herniated disc is beyond ridiculous and is probably just plain corrupt. The second denial seems more like a Hail Mary attempt to frustrate the worker which probably happened after they got a read on his personality. They really had nothing to lose because if it works even one out of ten times they’ll save a bunch of money.
The solution if this happens to you is not to panic. Just find an experienced attorney to get your case filed with a motion for benefits right away. It sucks if you are forced to go that route, but it’s no where near as bad as not getting the medical care you need or benefits that you are entitled to because some insurance adjuster is messing with your life and health.
An employer can call you whatever they want, for their purposes, but it doesn’t carry much weight when it comes to what you’re entitled to under employment laws. If you are incorrectly labeled an independent contractor, you may be missing out on significant pay, protection and benefits.
Hiring independent contractors is relatively easy for an employer, and it tends to be cheaper, too. For example, employers don’t have to withhold taxes or pay employment tax on an independent contractor, so they might be tempted to label you as such, even when it’s not true.
The reason this should matter to you is because an employee is generally entitled to more than an independent contractor. There are more requirements placed on employers and therefore more protection for employees under the law. Employees are eligible for overtime (if they otherwise qualify) and entitled workers’ compensation, minimum wage pay and other benefits in most cases. Most independent contractors are not entitled to these things.
Illinois law sets the rules on what makes someone an employee vs. an independent contractor. The key is control. The more control your employer has over you, the more likely it is that you are an employee. If your employer sets your hours, provides the equipment you use to do your job, gives you a uniform, instructs you on how to do your job, or anything else that gives them control over what you do, you might be an employee.
In many cases, there’s a mix, with the employer controlling some aspects of your work, but leaving some up to you. It’s these cases that often result in misclassification because the lines aren’t clear.
If your employer says that you’re an independent contractor, don’t take their word for it. If you believe you have been misclassified and that you are owed past pay and/or benefits, talk to an Illinois employment attorney about whether you have a claim worth pursuing.
One of the more important benefits available to an injured worker under Illinois workers’ compensation law is payment of lost wages. If your work injury prevents you from being able to do your job, you can continue receive a portion (2/3) of your pay. It’s important to understand how this 2/3 calculated so you can make sure you are getting the full amount to which you’re entitled.
In order to arrive at the amount of your payments, the insurance company will first determine your “average weekly wage.” You will then receive 2/3 of this amount. So naturally the worker will want their average weekly wage to be as large of a number as possible, and the employer or insurance company will want the opposite. One relevant question is whether bonuses, overtime, vacation pay and other forms of compensation are included as wages.
Illinois law says that bonuses are not included in calculating average weekly wage. However, there are many different kinds of bonuses that are awarded for many different reasons. As a result, judges have allowed inclusion of bonuses in certain situations. It comes down to the reason why you received the “bonus.” Generally speaking, if it’s more of a gift (Christmas bonus, signing bonus, etc.), then it’s not considered compensation and therefore not included in the average weekly wage calculations. If it’s payment for doing your job (a bonus for reaching a certain sales goal, for example), then it generally should be included.
From the employee’s viewpoint, it makes sense that all forms of pay should be included, in order to accurately reflect their income and result in checks that truly compensate them for 2/3 of what they would otherwise be earning. A good workers’ compensation attorney will look into all forms of pay that you receive – bonuses, vacation, overtime – and make sure everything allowed under the law is included when calculating your average weekly wage. Although signing bonuses generally don’t count, other types of bonuses may, so check with an experienced workers compensation attorney to know for sure.
I received a call the other day from a very panicked injured worker. He had hired a Peoria workers’ compensation attorney who does a lot of TV advertising. That’s what got him in the door to sign up with them.
Unfortunately, a somewhat inexperienced attorney handled this caller’s case and they went to trial. They lost the trial and now the worker is stuck with all of his medical bills and no settlement or award for his injury.
He wanted me to appeal the case because his lawyer had withdrawn from the case that morning. I declined to get involved.
When you appeal a case, as a lawyer we are stuck with whatever evidence was presented by the first lawyer. We can’t call any new witnesses, ask you or anyone else any questions, submit medical records for review, etc. In other words, we’d have to try to clean up a mess that we have no influence over. Beyond all of that, almost 80% of appeals are denied.
So to get us or any new firm to take over a case once it’s gone to trial is just impossible. We’d much rather focus our time on helping our clients that came to us in the beginning or before the point of no return.
This lawyer really screwed over my caller by withdrawing from the case. If he lost the trial, he should have filed the appeal and tried to make it right. But that firm is high volume and doesn’t appear to work that way.
Hopefully you don’t lose a trial, but if you do, I can assure you that unless you are willing to pay some appellate specialist by the hour, no work comp attorney I’ve ever met would take over someone else’s case. Insist that your attorney file the appeal for you. They might be terrible at their job, but the truth is that once you’ve gone that far they are really your only shot.
It’s a legitimate question, and we get it all the time. But our answer is that we just don’t think there is one. Every attorney-client match is unique and the best attorney for one person may not be the best attorney for the next person. So, we don’t believe there is a single best workers’ compensation attorney in Illinois, but we do believe that there is an attorney who is best for your specific case.
What we mean is that your focus shouldn’t be on finding the most well known attorney, or the guy who claims to have “won” 99% of his cases. Instead, your focus should be on who has the ability to get the best outcome for you. A “win” is something different for everyone. In helping to figure out the best attorney for you, we consider the following:
- How much experience do they have with your particular type of work injury?
- How much of their practice is devoted to helping injured workers?
- Where is your claim being heard and which arbitrator will hear it?
- Are there are unique aspects to your case, such as your employer claiming you are an independent contractor?
- Is your case likely to go to trial?
- Do you prefer, or would be better matched with, an attorney with any particular personality traits?
- Do you need anything specific, such as an attorney who speaks another language?
- Is your claim urgent? Have your benefits been cut off?
Experience is one of the most important considerations, along with how much of an attorney’s practice is focused on workers’ compensation. But everything is relevant. For example, if your case is urgent, you need an attorney who is able to take it on right away. The bottom line is that you need to look at what’s best for your case.
The theme of the blog lately has been emphasizing how we always tell the truth, even if that means telling you what you don’t want to hear. Usually that means letting you know that we don’t think you have a case. Here are seven calls we’ve received lately that aren’t compensable cases. That didn’t make us any money, but we aren’t liars:
- A woman called us because she was put on probation at her teaching job, which lead to a nervous breakdown. She felt that the probation was for made up reasons. That may be true, but to get workers’ compensation benefits in Illinois for stress, you need to show something severe, sudden and shocking caused your breakdown. That didn’t happen to her.
- A factory worker with an accepted carpal tunnel injury wanted to also bring a claim for his cubital tunnel syndrome. The problem is that both his surgeon and treating doctor said that problem was not in any way related to his job activities. If your doctor is against you then you will lose.
- In what will be a shock to nobody that we declined the case, a guy that fell down the stairs after snorting cocaine while he was working, broke his arm. Uhm, that is not a case any day of the week.
- While walking in to work at the county building, a worker slipped on a wet floor, hurting his knee. He hadn’t yet punched in and was in a common area for the public. An old case against the Chicago Tribune makes clear that this isn’t covered under the Illinois Workers’ Compensation Act.
- An injured restaurant employee wanted us to take over his back injury case after his lawyer dropped him. Apparently they caught him on video playing tackle football with some buddies. That was a couple of days after he told his doctor that he could barely walk up the stairs at his apartment. When they get you lying on video like that, your credibility is shot. We’d never touch a case like that because it would make all of our other clients look like liars by association.
- A caller had broken his hand in a fight with a co-worker. The problem was that they weren’t arguing about work, but instead were arguing because the other guy had slept with my callers’ wife. And the caller threw the first punch. So this case was a double loser. You can’t get work comp for a work fight when you aren’t battling over work issues. In addition, the aggressor in a fight (usually the guy who started it) does not get to pursue a case either.
- Finally, we were contacted by a really nice guy that lives in the south burbs. He had a forklift smash into him on the job and he is seriously injured. It’s definitely a work related injury, but unfortunately he can’t bring the case in Illinois. Even though he lives here, the factory is in Indiana, the accident was in Indiana and the last act to hire him also took place in the Hoosier State. So there is no legal basis for bringing a case in IL.
The good news is that most of the calls we get are from people with legitimate on the job injury cases and questions. But when they aren’t we will tell you. If you have questions as to whether or not you have a case or about anything else, you can call us at any time.
A lot of our callers and clients are thankfully in a good situation with their job. Yes they sustained a work related injury, but they also enjoy where they work and don’t want to ruffle any feathers. The common statement I hear is that “I don’t want to sue my employer.”
The good news is that filing for workers’ compensation benefits is not a lawsuit at all. There is never a Judge or jury. You can have an arbitration hearing if your benefits are disputed, but that is us dealing with the insurance company and their lawyer.
We are very sensitive to that fact that most people don’t want to make waves with their employer. We deal with the insurance company and their lawyer exclusively. That’s because they are the ones who are really handling the case against you and trying to figure out a way to minimize what they give you. By getting an attorney involved, even when it appears the insurance company is doing the right thing, you are essentially leveling the playing field to make sure that you don’t get screwed over.
It’s really no different than getting help with any other insurance issue you might face be it a fender bender or a dispute with your health insurance company.
Not every injured worker in Illinois needs a lawyer and we tell you when you don’t need help. But if you don’t get one because you are worried about “suing your company” then you are making a big mistake, one that could potentially bite you in a bad way.
When an insurance company downplays your injury – or denies it altogether – it can be incredibly frustrating. Unfortunately, it’s not surprising. Insurance companies don’t want to pay you. That’s how they work. If they can deny your claim or make it worth less, they’ll do it.
In some cases, they look to prove that you already had an injury unrelated to your job. For example, they might say you have arthritis and that’s what’s causing your pain. Even if it’s true that you have arthritis, it doesn’t mean you didn’t suffer a legitimate work injury on top of it. You still should be entitled to benefits for your work injury. In other cases, the insurance company will acknowledge an injury but call it less than what it is. They might describe your injury as a back strain rather than a herniated disc. This makes your claim much cheaper for them.
Clearly, the insurance company isn’t on your side. It can seem like they’re on your side because the insurance adjuster (the person handling your claim) might be very nice. They might call and check in on you, offer to attend your doctor appointments, etc. While these gestures seem friendly, to us they are red flags. The adjuster wants to find a way to deny or lessen your claim, and the more they know about you and your injury, the more likely they are to succeed.
Don’t let anyone from the insurance company attend your doctor appointments. Better yet, let your attorney deal with insurance company. They understand how these companies work, how they handle claims, and how they negotiate settlements. And the insurance company is less likely to give a really low settlement offer to someone who is represented by an attorney with a good reputation. Even if they do give a low offer, your attorney will know that it’s low.
It’s hard, as an injured worker, to know how much your injury should be worth. Don’t be discouraged by what the insurance company says. It’s their job. Just know that you don’t have to accept their assessment and that you can hire an attorney to level the playing field.
There are a lot of misconceptions about how workers’ compensation works, and unfortunately it can lead to unreported injuries. If your employer tells you that you shouldn’t report a work injury, or that you should lie to your doctor about how you got hurt, you don’t have to go along with it.
Filing a claim for workers’ compensation is not going to hurt your employer. The whole point of workers’ compensation is to help you if you get hurt on the job. It pays your medical bills – 100% -- and pays you for lost income if you have to miss work because of your injury.
The money does not come out of your employer’s pockets. Most employers are required to carry workers’ compensation insurance. It’s the insurance company that pays your medical bills and your lost wages. Your employer is not billed for these things.
This misconception may be the reason that a supervisor would tell you not to report your injury as a work injury. Or perhaps they have other reasons. But the bottom line is that you need to look out for yourself first. Further, lying about how you got hurt can be considered insurance fraud.
It is illegal for your employer to fire you or retaliate against you for filing a claim for workers’ compensation. You can and should file a claim. The benefits are there for you, and the purpose is to help you recover, pay your medical bills, and get back to work. Don’t let your employer convince you otherwise. Your employer should not put you in this position. They are asking you to lie, and they are asking you to forgo benefits that you’re entitled to.
Workers’ compensation isn’t just for people who do physical labor or work with dangerous equipment. In fact, office workers are at risk for one of the most common types of workplace injuries – Carpal Tunnel Syndrome. Typical office tasks, such as dialing the phone, typing and other repetitive motions can lead to this type of injury.
Carpal Tunnel Syndrome (CTS) is caused by compression of the Median nerve at the wrist. This pressure causes pain, numbness and tingling. If you have CTS, you may have trouble using your fingers and hands the way you used to. Feeling clumsy or dropping things may be signs that you have CTS. If you work in an office, imagine how hard it would be to do your job if you couldn’t type on a computer. This type of injury can seriously impact someone’s job and career.
If you suspect that you have CTS, see a doctor. Tell them what type of work tasks you perform every day so that they can determine whether you have a work-related injury. CTS is most common in people ages 40 to 60, as the problem tends to build up over time. Pregnant women can be at higher risk of CTS as well, but it often resolves after pregnancy.
CTS can be treated with surgery, depending on the severity of the injury. The operation is a simple procedure, often taking as little as 10 minutes. However, the recovery is a bit more significant. You may not be able to work for some time. This is where workers’ compensation becomes particularly important.
In Illinois, workers’ compensation covers 100% of the medical costs of a job injury. It also pays you a portion of your wages while you are out of work. This can be essential in allowing you to get past your injury without ruining your financial stability. After seeing a doctor, talk to an Illinois workers’ compensation attorney to make sure you’re getting all the benefits to which you’re entitled.
Hostess Brands Inc. went out of business after more than 70 years. They left behind three shuttered plants in Illinois and many laid off workers.
Many of those employees suffered work injuries. It’s common for line workers to have repetitive trauma cases for back or joint problems. Many others hurt their back, arm or legs from lifting injuries or slip and falls.
But even with Hostess shutting down, it is still possible for injured workers to apply for workers' compensation. Under Illinois law, even when a company file for bankruptcy, that doesn’t get them out of their rights to pursue Illinois workers’ compensation benefits. Either their insurance company will have to pick up the costs or the Illinois Insurance Guaranty Fund will step in.
There might be some slight delay to the cases, but the cases aren’t over and the injured workers shouldn’t settle for short money. This is a common insurance company trick when one of their insured’s shuts down. Don’t fall for it.
In fact, insurance companies often panic when an insured goes out of business because it makes it harder for them to investigate and defend a case. In addition, unless you have a full duty release to return to work, the insurance company will have to offer you vocational rehabilitation if you can’t find a job within your restrictions. This is true even if you could have returned to your old job.
So while I feel awful for these workers or anyone else that loses their job, there is a small silver lining for those that suffered work injuries, be-it at Hostess or anywhere else.
I try not to talk overly legal on this blog because it makes my head hurt and certainly doesn’t meet my goal of educating the public on their rights. But every now and then I see a legal memo of document that I think does a good job and I pass it on. Here’s a memo written by a lawyer I know that I think can explain the law in Illinois when you get hurt taking a break from your work day. The good news is that injured workers usually prevail in these situations.
So if the following is too wordy, I apologize. I won’t make it a habit.
Under the personal comfort doctrine, employees who engage in acts related to their personal health and comfort do not leave the course of employment for workers’ compensation purposes. The doctrine encompasses acts such as eating, drinking, obtaining fresh air, seeking relief from heat or cold, showering in an employee locker room, resting, smoking, and using the restroom. The courts consider these incidental acts that take place in the course of employment. Thus, the personal comfort doctrine does not answer the whole question of compensability because it addresses only the “in the course of” requirement for workers' compensation claims. The petitioner must still meet the “arising out of” requirement independently.
The personal comfort doctrine does not cover employees who engage in conduct so unusual and unreasonable that it cannot be considered an incident of the employment. An injury occurs outside the course of employment if the employee voluntarily and in an unexpected manner exposes himself or herself to a risk outside of a reasonable exercise of his or her duties. The courts, however, may still find an employer liable for injuries resulting from unreasonable and unnecessary risk if the employer possessed knowledge of or acquiesced in a practice or custom.
In Eagle Discount Supermarket v. Industrial Commission, the Illinois Supreme Court found that an employee injured himself in the course of his employment when he fractured his ankle while playing Frisbee in the employer’s parking lot during his unpaid lunch break. On days with nice weather, the employer’s night manager would unlock the store doors to allow employees to eat lunch outside and turn on the parking lot lights to allow employees to play catch with a softball or Frisbee. The court concluded that the employee’s injury occurred in the course of employment because Eagle knew, acquiesced, and possibly participated in the employees' routine games.
The personal comfort doctrine applies only to employees who sustain injuries while seeking their own personal comfort. The doctrine does not apply to an employee who sustains injures while assisting a co-worker in his or her efforts to seek personal comfort.
A reader asks:
I was walking in the nursing home dining room where I work. Something in my knee area popped, & I lost control of my left leg. Went to clinic for treatment & x-rays. Submitted Workmen's Comp claim. Nursing home\'s insurance denied claim, saying this could have happened at home or anywhere so they won\'t accept it, even though it happened while working.
One thing I can tell you about me or anyone in my state wide network of attorneys. We don’t tell you what you want to hear, but we always tell the truth. This woman unfortunately does not have a case.
To win a workers’ compensation case, you must show that your injuries arose out of and in the course of your employment. In this case, the reader was injured during the course of her employment, but her injuries did not arise out of her employment. That’s because walking is an activity that everyone does and the Courts in Illinois have said that if you are doing an act of daily living at your job, unless you have an increased risk of injury from those job duties, your case isn’t compensable.
For example, if she had to walk an excessive amount every day (e.g. many miles) that would be an increased risk. It would have been that too if she had to wear steel toed boots or was running to a meeting or carrying a bunch of heavy materials.
But the simple act of taking a step and having your knee pop could have happened everywhere and just because it happened at work does not make it a case. Like I said, we don’t tell you what you want to hear. We fight like hell for our clients when we take a case on for them, but we’ll never waste our time or anyone else’s time by taking on a case that isn’t legit.
I’m glad this reader didn’t take the insurance company’s word for it because it’s standard practice for them to tell you that you don’t have a case when in fact you do. This time though they were telling the truth and while it’s sad for this worker, there is nothing anyone can do about it.
A woman called me and asked that I take over her workers’ compensation case which involves what appears to be a serious back injury, but also appears to be a huge mess.
It’s a huge mess because she’s been putting all of her medical bills through her group insurance carrier. It’s a huge mess because her current lawyer has never asked for wages for both jobs that she worked before the accident. It’s a huge mess because the lawyer has allowed a nurse case manager to attend all of her medical appointments. It’s a huge mess because the attorney said it was ok to give a recorded statement. It’s a huge mess because this same attorney has her treating with his friend who is a chiropractor.
The lawyer she has is someone I’ve never heard of and when I looked him up, it appeared that he handles mostly real estate closings (which is a dying area of law and divorces). So I asked her where she found this attorney and she told me that he goes to her church and assured her that he could handle a case like this.
Lots of lawyers want to get clients that have injury cases because the perception is that the attorney will make lots of money and these cases are easy. The reality is that most cases aren’t worth than much and in no case does the insurance company just roll over and pay a ton of money. They are always looking to reduce what they have to spend because insurance companies make money by not paying out money. So in a case like this, they try to avoid paying the medical bills by delaying payment and suggesting that the worker put the bills through her group carrier. They don’t voluntarily pay TTD benefits based on both jobs, which is the law, unless they are pressed to do so. They assign a nurse case manager to talk to the doctor (that should never happen) and try to get cheaper care performed even if it’s not in the best interests of the injured worker. They take recorded statements in an attempt to trip you up in to saying something that will hurt or eliminate your case. And when you are seeing the wrong type of doctor to make you better, they don’t say anything if it’s cheaper for them.
The truth is that every injured worker in Illinois needs an attorney that really understands the law and has experience in helping clients with cases. Hundreds if not thousands of cases worth of experience is what they should have.
Picking an attorney that would love to make money, but doesn’t have any track record is just a recipe for disaster.
If you aren’t sure if your lawyer actually focuses on work comp, here’s three questions you can ask them:
1. What is the Petrillo Doctrine? This is a rule that says if they talk to your doctor without your permission, any statements made by the doctor to them are inadmissible at trial.
2. What’s Pathfinder? This is a famous case where a worker saw a co-worker’s hand get ripped off in a machine and it led to PTSD. Even though no physical injury was involved, the worker that saw everything received workers’ compensation benefits for what is called a mental-mental injury. This case set the standards for what it takes to recover from a stress induced/psychological injury.
3. What big change occurred in the Will County case? This resulted in a change that made shoulder injury settlements no longer considered to be “arm” cases, but instead they are “man as a whole” cases. It doesn’t change the value of the case, but it does prevent the employer from getting a credit for future arm injuries.
These three questions are workers’ compensation 101. Every attorney that regularly handles work comp in Illinois would know what you are talking about if you brought these items up. If they don’t you should not hire them.
There is an e-mail making the rounds from a personal injury lawsuit. It is a copy of a deposition transcript for the plaintiff. The defense attorney asks him the standard first question that is required for every deposition which is, “What is your name?” Since depositions aren’t videotaped, this is a way of identifying who is speaking.
Instead of answering the question and getting on with the deposition (which will also help the case get closer to resolving), the plaintiff proceeds to scream, “I’m not answering that stupid question, you know my name.” This goes on for a few minutes and he calls the defense lawyer every bad name under the sun and doesn’t calm down when his attorney tells him to. In the end, the deposition is cancelled and the case is no closer to being over.
While lawyers find this e-mail to be funny, it does offer a valuable lesson. You don’t want to act crazy. Now the defense believes that if they go to trial, the plaintiff will look like an idiot to the Judge. If he acts that hostile in front of a jury, they won’t have any sympathy for him.
We don’t have juries in workers’ compensation, but the Arbitrators can be influenced based on what they think of you. When you act nuts and like a bully, it makes them feel like you have no credibility. If the case depends on whether or not the Arbitrator believes your testimony, you are in trouble.
You hire a lawyer to do a job which is to advocate your position. When you make yourself the center of attention, you are putting all the focus on you and taking away the focus from the case facts. Let your lawyer deal with the case instead of baby sit you.
Behaving well certainly doesn’t guarantee a result, but if you don’t it will likely doom your case.
I’m pretty straight forward. I’ve created a statewide network to help people find the right lawyer for their case. The lawyers in this network are all very experienced and don’t lie to their clients. This doesn’t guarantee a result, but we all care about our clients and will tell them the truth, not what they want to hear.
We also don’t lie to make it easier to do our jobs. Aside from the fact that it’s wrong, clients aren’t stupid and if they figure out that you are lying to them it will blow up the relationship.
I’m writing this because two days ago I got a call from someone with a huge injury who is thinking about firing her lawyer. She was injured in 2010 and when she went to talk to her lawyer about settling the case he told her that the law had changed in 2011 so her case wouldn’t be worth as much.
This was a straight up lie because the 2011 changes to the law are not retro-active and the attorney knows this. He was basically trying to make an excuse as to why he didn’t get a settlement offer as high as he’d promised when he signed them up.
The client was savvy enough to know this was total b.s. and called the lawyer out on it. It wasn’t a case that we could take over, but karma got the lying lawyer back as this caller referred her neighbor to us.
There’s a lot that attorneys do that I don’t understand: Yelling at clients, talking down to them, being lazy, etc. But the worst is when these guys lie. In this case, it started with a lie about how much the case was worth and then it required another lie to cover it up.
I’m pretty mellow, but stuff like this just makes me want to scream. It’s so easy to do our job the right way and while most attorneys do, there are way too many that don’t.
Being an Illinois workers’ compensation attorney isn’t that hard. If you have to take a case to trial there is some work to be done, but there’s not a ton to do like in some other areas of law. If you know the facts of your clients case, secure their medical records and in some cases get a deposition of their doctor, you should be able to go to trial. Aside from preparing your questions and doing a practice run with the client, there’s not much to taking a case to trial.
But there are some lawyers that are just so lazy and care so little about the people that put their lives in their hands that it’s disgusting. I had dinner with a friend recently who defends workers’ compensation cases (yes, it’s ok to be friends with defense lawyers and in fact it’s actually good for my clients although that’s not why I do it). Anyway, he told me two stories that made my jaw drop.
The first involved him (Chicago guy) going to Peoria to take a deposition on a case. The lawyer for the injured worker lives in Peoria and they were deposing the treating physician who also is in Peoria. He said that when he showed up, the other lawyer, whose office was only a few blocks away, asked if he could participate by phone. My friend eagerly said yes.
This is a big deal because it prevents the lawyer from looking in the doctor’s file as well as prevents them from having a face to face discussion prior to the deposition. In addition, it stops the lawyer from handing the doctor any medical records that are important to the case. In a nutshell, my friend drove three hours and this other guy couldn’t drive five minutes. Do you think he’s fighting for his client?
The second example involved a case where my friend said the case was ready to be settled two years ago and his client wanted to offer money to the worker. But every time he asked the lawyer for a settlement demand he never got a response. So basically the lawyer for two years hasn’t done anything to get himself or his client paid. Finally the client fired him and the first thing the worker’s lawyer did was to call my buddy and ask if he’d make a settlement offer.
My friend knew that if they made a decent offer, the worker would have a hard time finding a new lawyer. Previously he had authority to settle the case for up to $30,000. He made an offer of $18,000 to this lazy lawyer which allows that attorney to get a fee of 20% of that amount. This was smart because a new lawyer would have to be willing to do a ton of work now and won’t get more than the attorney that did nothing.
If an attorney wants to be lazy then I don’t know why they are in this business at all. I certainly don’t get these guys that won’t even make a settlement demand because it’s not as if they get paid by sitting on their butt. I think they are just too burned out to even care and it really hurts their clients.
My advice to you is that if you see red flags of laziness such as no returned phone calls, long delays in the case, broken promises, etc., call around to someone else. I always tell people to stick with their current attorney if they can, but guys like these don’t deserve to have any clients. They give us all a bad name.
I wrote this a long time ago, but just came across it. If you are experienced with Illinois work com, it’s probably not for you. But if you are looking for general information, this is a great start.
If you’re injured on the job in Illinois, we recommend that you file a workers’ compensation claim. Illinois employees are entitled to 100% of their medical costs from an on-the-job injury, as well as payment for lost wages. If the injury is permanent or causes death, there are payments for that as well.
The workers’ compensation system (called the Illinois Workers’ Compensation Commission) oversees these cases, rather than the courts. This way (in theory), each case is processed more quickly than a lawsuit, allowing injured workers to receive compensation checks as soon as possible. When there is a dispute, an arbitrator resolves it rather than a judge.
In Illinois, almost all work-related injuries are covered by workers’ compensation. Some common examples include injuries caused by machines, slip and fall incidents, inhalation of fumes, as well as carpal tunnel and other repetitive stress injuries.
Illnesses caused by the job are generally covered, such as lung disease caused by working with asbestos. Even if you had a pre-existing condition, you should be covered. The general rule is that if your job made your existing condition worse, you are entitled to benefits. For example, if you have a bad back that is exacerbated by heavy lifting at work, you should be able to receive medical coverage as well as lost wages for any time off work due to your back injury.
There is a myth that if the injury is your fault, you do not qualify for workers’ compensation. This is false. In the majority of cases, it doesn’t matter who was at fault. If you were injured because you weren’t paying attention while using heavy machinery, you’re probably covered. If your boss failed to clean up a spill and you fell and broke your ankle, you’re covered. The trade off is that you cannot sue your employer for negligence after a work-related injury in most cases.
If you are injured on the job, your first step should be medical treatment. Next, notify your employer. Illinois law requires you to notify your employer of a work-related injury within 45 days. You also should file a claim with the Commission.
If your claim is not disputed, you may get a check without ever filing an official claim. However, if a dispute arises in the future – if your payments stop or your condition worsens and your medical coverage is denied – having a claim on file will give you a head start. Basically, it will mean that you can get a hearing more quickly.
In Illinois, you have three years from the date of injury to file a claim. If you have already received benefits, then you have two years from the date of the last benefits payment. The official claim form is called an Application for Adjustment of Claim, and it’s available online.
The Illinois workers’ compensation system doesn’t just cover employees in Illinois. If your company is based here, but you work elsewhere, you may still be able to file an Illinois claim. Or, if you interviewed in Illinois and were hired here, even if you haven’t been here since, you can probably file an Illinois claim. We mention this because Illinois in known as being a “worker-friendly” state when it comes to injury compensation, so if you can file here, you may want to do so.
Settlements are common in workers’ compensation, just like any other area of personal injury law. And just like those other areas, you will find yourself up against an insurance company that will try to settle for as little as possible.
If you have a minor work-related injury, and your medical bills are being paid and you didn’t have to miss any days of work, you may not need an attorney. However, many cases are not that simple. If your claim is denied, if your medical treatment or diagnosis is disputed, or if you receive a settlement offer, it may be time to consult with an experienced workers’ compensation attorney.
Illinois workers’ compensation attorneys generally charge a contingency fee of 20% of your settlement. If you get nothing in settlement, there is no attorney fee. Most attorneys that we recommend take nothing for getting you payments for lost time or medical benefits, unless they need to go to trial to do so.
We are a group of Illinois attorneys committed to finding you a great lawyer. If you have any questions or need some guidance, give us a call. We’ll do what we can to help, and refer you to a great workers’ compensation attorney if you need one.
The general rule in workers’ compensation law is that you can’t get benefits if you’re injured doing something that most people find themselves doing every day. Walking up the stairs, for example. If you were simply walking up some stairs when you fell and hurt your back, the insurance company may deny your claim. However, don’t give up if this has happened to you. The rule isn’t black and white.
You need to look at the specific circumstances of your job and what you were doing when you were injured. Many times, your attorney can argue that what you were doing wasn’t an ordinary activity in your case because of the specific circumstances of your work. For example, if your job requires you to go up and down stairs all day long, or if you have to wear shoes that make it more difficult to climb stairs, or if you have to climb stairs outside in bad weather, or if you have to hurry up and down the stairs, you might be able to successfully argue that you were injured because of your job (which is key) and not because you were doing something that most people do every day.
There was a case not too long ago in which a police officer injured her knee getting out of her squad car. At first glance, it seems like an ordinary activity because regular people get in and out of cars all the time. But, as it turns out, there were facts that made the act of getting out of the car specifically connected to her job. Her uniform included a lot of extra weight – a protective vest, a heavy gun belt, etc. Also, her job required her to get in and out of the squad car about 40 times each day, while wearing the heavy uniform. The arbitrator determined that these extra facts meant that her injury was covered under workers’ compensation.
These cases depend heavily on the specific facts of the worker’s job duties and working environment. If you have questions about whether your injury would be considered work related and whether you would be entitled to benefits, talk to an experienced attorney who knows how to analyze the facts.
If you get hurt at work, there are a lot of reasons to do something about it right away. Two of the most important reasons are your health and your workers’ compensation benefits.
A delay risks your health and your ability to continue to work. We hear from injured workers who had tried to tough it out because they were embarrassed about getting hurt, and we hear from some who simply didn’t know there was anything they could do. The bottom line is that you are entitled to benefits if you are injured at work, but you might miss out if you wait too long or don’t address the problem.
If you don’t see a doctor and get the treatment you need, your injury can worsen. If this happens, the insurance company might deny your claim because you waited too long and you can no longer prove that your current condition is work related. The first thing to do after a work injury is to get medical attention.
If you don’t file a claim for workers’ compensation, you may not get the benefits you’re entitled to. When you file a claim for workers’ comp in Illinois, and your claim is approved, your medical bills are covered 100%. In addition, you will be paid a portion of your income if you can’t work. Two important steps are notifying your employer and filing a claim with the Illinois Workers’ Compensation Commission.
In most workers’ compensation cases, you are dealing with your employer’s insurance company and not your employer directly. Also, it is against the law for your employer to retaliate against you (fire you, demote you, etc.) for filing a workers’ compensation claim.
Insurance companies almost always look for ways to deny your claim. It’s their job. And it’s one reason why taking action early on is important. You don’t want to give them a reason to hold back benefits. However, if they do deny your claim don’t be discouraged. Talk to an attorney about requesting a hearing and doing what you can to get your claim approved. It may not be too late.
I saw this on a list-serv I am on and thought it was worth sharing:
I got hurt at work, my employers insurance/ workers comp is covering my medical bills but has not paid me my wages. I was out of work for 9 weeks without pay, I have been in contact with the insurance and they have been giving me the run around when they actually answer the call. I returned to work about a week ago. What should I do about this? I was also told that I can sue the insurance for neglecting the case so long and may be entitled to a lump sum since I was in a cast?
Let’s answer the questions one at at time.
- He’s still owed the pay for being off of work. The best way to handle that is to hire a lawyer and file a motion for benefits.
- We can’t sue the insurance company, but we can file a petition for penalties and fees for the unreasonable delay in the payment of these benefits. This will put some extra money in his pocket and hopefully teach them a lesson.
- Yes he’s entitled to a lump sum settlement, but not because he was in a cast. It’s because he sustained a real injury that caused a permanent problem.
I’ve never understood why an insurance company would pay the medical bills and nothing else. Yet it happens all of the time even though there is no basis for doing so. But the sooner you realize that insurance companies don’t always do the right thing, the easier it is to develop the right mind set for dealing with them. We always try to be amicable when we can, but we never let the walk all over our clients like is happening in this case.
A caller to my office was hoping that I would represent his son. He told me that his son was injured while working in Joliet and had sustained a really serious back injury. It was so serious he told me that his son had been unable to work for almost two years since his accident in 2011.
As a work comp lawyer, this is certainly the type of case that I like to take on and I was about to discuss meeting with his son. But then we started discussing the medical care his son had received. It turned out that there was about one month of physical therapy and then he received no further treatment after that.
The boy hadn’t returned to work since then and it was his Dad’s opinion that despite what the doctor said, his child had no ability to work in the last two years. No doctor had ever said that, but that’s what he felt in his heart. So I asked what his kid had been doing the last two years and he told me that he was going to school. The Dad wanted me to file a motion to get two years of unpaid TTD benefits.
When I started my own practice, I told myself that I would always tell people the truth, not what they wanted to hear. That was certainly the case with this caller. Only a doctor can state that you can’t work. You will never get TTD benefits without a note from a physician that authorizes you off of work. That’s the law plain and simple.
In this case, given that the kid can go to school, it certainly appears he could have been working this whole time. But even if he had been sitting on his butt, eating Doritos and watching Jerry Springer all day (is that show still on?), he still wouldn’t be eligible for Illinois work comp benefits because he still has no doctor in his corner.
The moral of the story is that if you aren’t feeling well, go to a doctor. Forget about how it will help your case (although it certainly will), but instead do it for your health. If you don’t get medical treatment then you are risking your future and you certainly can’t make a claim for benefits.
An Illinois court of appeals recently confirmed a decision by the Workers’ Compensation Commission that a truck driver was an employee, despite the trucking company’s argument that he was an independent contractor who was not eligible for workers’ compensation benefits. Under Illinois law, only employees are entitled to benefits, such as payment for medical bills and lost wages. So, whether you are an employee or an independent contractor has serious implications if you are injured on the job.
The general rule is that the more control your employer has over your work the more likely it is that you are an employee, and less control points to independent contractor status. This recent case is important for injured workers in Illinois. The truck driver had signed an independent contractor agreement and was paid as an independent contractor (no taxes deducted). Despite this evidence, the arbitrator found it more important that the truck driver was treated like an employee when he was working.
The policies that were applied to the driver and the way his work was controlled were key factors in the decision. The driver drove company trucks; the company paid for fuel and tolls and provided log books; the company required the driver to get prior authorization for any truck repairs; the driver called in regularly to check if work was available; and the driver was paid on Fridays, which was pay day for company employees.
The arbitrator determined that the company had sufficient control over the driver’s work to put him in the category of employee rather than independent contractor. The arbitrator found the signed independent contractor agreement invalid because the driver did not speak English. The driver was awarded temporary total disability (TTD) payments, which gives workers a portion of their wages while they are unable to work.
The label that your employer puts on your job or position is not always accurate. In some cases, the employer might be trying to get around the law by using the term “independent contractor” much too broadly. Other times, the employer might not know the difference.
The bottom line is that the way your work is controlled is more important that your job title. It’s not always crystal clear, which is why it’s a good idea to talk to a workers’ comp attorney if you have questions, especially if your benefits are denied because your employer claims you’re an independent contractor.
Attorneys are in the customer service business. It’s not taught in law school, but if you don’t treat a client well, the case isn’t going to go well. And if you have an unhappy client they will probably fire you and certainly won’t recommend you to friends, which is the best compliment you can receive.
Every lawyer knows this, but check out some calls I’ve received from people that aren’t happy with their lawyer (note, these are complaints about other offices, not mine or anyone I work with).
- We went to trial January 7th. How do I find out what happens next. My lawyer didn’t tell me anything.
- I just found out my lawyer left the firm three months ago.
- I’ve called my attorney four times in the last month and not once did he call me back.
- In the year I’ve been with this firm, four different lawyers have been assigned to my case.
- My attorney told me I was stupid.
- I think my attorney was drunk.
- The lawyer they assigned to me has only been licensed to practice for two months.
- I was told the main partner was going to handle my case, but it’s really his young associate that is doing everything.
- My attorney didn’t show up to court.
- The lawyer told me when we first met that my case was worth $100,000 and now he wants me to settle for $5,000.
- None of this stuff should happen. It’s all from lawyers being lazy, having bad attitudes, not caring about their clients or flat out being liars. It’s pathetic.
I never promise a caller a result, but I do guarantee that no one we recommend or work with on cases would do anything like this. And if they did, they’d be gone.
You as a client have to look out for you. Don’t hire lawyers that show some of these signs of bad service. If they start great, but end up not being what they said they would be, get rid of them. It doesn’t cost you anything and hopefully can save your case.
When you have a serious work related injury, it’s almost as if your life is on the line. You deserve a lawyer who will understand that AND prove it in how they represent you.
Many different types of employees are on their feet for the majority of their shift or workday. From cashiers and others in retail or hospitality, to those doing physical labor, workers who stand a lot are susceptible to foot pain as a result. However, many of these cases are not considered workers’ compensation cases.
When your injury is caused by standing for long periods of time, it’s not considered an injury that is unique to your job. This is true even if your job requires you to stand most of the day. The rationale is that standing does not put you at any sort of increased risk for injury. The law basically says that you are not facing a greater risk than anyone else in the general public.
There are exceptions. In cases where your work environment or other restrictions or requirements make standing more risky, it can be classified as a workers’ compensation situation. If you are required to wear certain shoes that caused your foot condition, or if you are required to stand on uneven ground or in a strange position that isn’t good for your body, then you might have a claim and be eligible for benefits.
The general rule is that any injury that comes out of the course of your employment is a workers’ compensation injury, meaning that you can get benefits (payment for medical expenses and time off work). However, standing at work often misses this category because of the idea that you are not at higher risk. The same is true for injuries that happen when you’re physically at work but have little to do with actually doing your job, such as a heart attack while sitting at your desk.
If you have questions about whether your foot injury would be considered a workers’ compensation issue, let us know. Despite what we’ve said here, it’s important to get the advice of someone who handles work injury cases rather than deciding for yourself that you don’t have a case.
When you sign a settlement agreement with the insurance company, you almost always waive your right to future medical coverage. This is the risk you take. If your pain comes back or if you need surgery later in life, you can’t go back and ask for more money. This is one reason why it’s important to consult with an attorney if you plan to settle. A settlement is a give and take and you want to make sure you’re doing what’s in your best interests. There are ways to keep medical coverage open if it makes sense in your case.
So if you settle your claim but the pain comes back, you might be out of luck. But if something happens that causes you to re-injure yourself, such as a slip and fall, it might be a different story. If you re-injure the same part of your body, you can file a claim. However, your compensation for that injury will be reduced because your previous settlement payment will be taken into account.
If you injure a completely different part of your body, you can file a claim and it should not be affected by a prior settlement. So if you settled your claim for a neck injury a few years ago, but then break your foot, you should be covered.
These cases get a bit confusing, and hopefully we haven’t confused you more. It’s one of those instances where talking to an attorney can make a big difference. An initial consultation shouldn’t cost you anything and it’s the best way to learn what your options are and what’s realistic to expect. It’s not uncommon for insurance companies to deny claims. They do it all the time, especially for cases that aren’t as clear-cut, such as a re-injury case. An experienced attorney can help you get your claim approved.
Workers’ compensation law in Illinois is considered fairly favorable to injured workers, especially when compared to the laws in other states. However, your right to benefits under our state’s system does not remain open indefinitely.
The statute of limitations on filing a claim for workers’ comp is three years from the date you were injured. This is the deadline. If you don’t file by this time, your claim can be denied and you might not get a second chance.
There are a few exceptions and special circumstances. If you have received benefits already, your deadline is two years from the date of the last benefits you were paid. Sometimes, insurance companies start paying and then stop, even though the worker is not fully recovered and should still be receiving payments or medical coverage. In these cases, the deadline for filing a claim and fighting to get the benefits you’re owed is two years.
If you have a repetitive stress injury that developed over time, you may not know the exact date of your injury. So when does the clock start ticking in these cases? Usually the answer is the date you knew your injury was work related or the date you should have known. This could be the day your doctor tells you that your arm pain is carpal tunnel syndrome, for example.
The best rule to follow is to get medical advice, and then legal advice, sooner rather than later. You don’t want to risk waiting too long. Some work injuries are quite serious, or become serious over time. They can affect your ability to keep your job, earn a living and support your family. You have a right to certain benefits. It’s up to you – and your attorney – to make sure you get what you’re entitled to.
We get too many calls from people who get a denial letter from the insurance company and assume they can’t do anything and just give up. Then, they call us years later because a friend urges them to or they start realizing they got tricked, but by then it’s too late.
A denial letter that says something like “We have investigated your case and have determined that your injury is not covered under the Illinois Workers’ Compensation Act” is just a form letter. Something about your claim probably prompted them to deny benefits, but it’s by no means a final say in the matter. Often it’s just a tactic to decrease the number of claims the insurance company approves. For them, fewer claims means money saved.
Insurance companies only pay on claims when they have to. They routinely send denial letters to injured workers with the hope that they’ll give up and stop trying. Unfortunately, it works. It’s easy to get frustrated or overwhelmed. Insurance companies play the same games when reducing benefits or offering settlement amounts. They want to pay you less and they’re hoping you won’t know what your claim is really worth. Don’t let it work on you.
This also happens in other types of injury cases where insurance companies are involved, such as car accidents. A person gets rear-ended, through no fault of their own, and the insurance company says the person who hit them wasn’t at fault. They work hard to make you believe they owe you nothing.
If you’ve received a similar letter from your employer’s insurance company, don’t take it at face value. You can get a consultation with a workers’ compensation attorney for free and find out if you actually have a claim worth pursuing. In many cases, an experienced work injury attorney can turn a denial into an acceptance fairly quickly.
The general rule, under Illinois workers’ compensation law, is that workers who are injured in the course of their employment are entitled to payment of benefits. These benefits include payment for medical expenses as well as lost wages if you are unable to work. However, not every worker is covered for every injury that is remotely related to his or her job. There are some gray areas that result in workers having to fight for benefits. One example is injuries that happen outside of the workplace, such as on the road or at a jobsite.
Workers who are injured away from their place of employment are sometimes – but not always – eligible for benefits. If you get hurt on your daily commute to work, for example, you’re generally not covered. However, if your employer requires you to travel out of town to attend a trade show, you likely would be covered if you got hurt. The difference is that this second scenario involves what’s called a “traveling employee.”
A workers’ compensation case about traveling employees was just decided by the Illinois court of appeals. The injured worker in this case was a pipe fitter out of Springfield who had taken a short-term job out of town. He was hired by a contractor (the employer) to do work on a power plant in Cordova, Illinois. Because the job site was 200 miles from home, he and a co-worker decided to stay at a hotel about 30 miles from the power plant and drive to and from each day. On the second day of the job, the worker’s truck skidded on ice on his way to the plant and he was seriously injured.
The employer of course argued that the employee was not a traveling employee because it was trying to avoid paying benefits. The employer argued that it did not require the pipe fitter to stay in that hotel or any hotel, nor did they pay lodging or travel expenses. The argument was that it was more like a daily commute. However, the court of appeals disagreed, which is good news for workers in Illinois.
The court said that someone who has to travel away from his employer’s premises to perform his job is a traveling employee. The power plant was not the employer’s premises. And in this case, the worker really had no choice but to stay in a hotel and travel from the hotel to the site, because the plant was too far from home.
Traveling employees aren’t automatically entitled to benefits. They still have to prove that their conduct (in this case, driving to the plant) was reasonable and foreseeable. And the court said that driving from a hotel to the plant each day was reasonable due to the location far from home, and the fact that workers from out of town would choose to stay close by was foreseeable by the employer.
When it comes to eligibility for workers’ compensation, each traveling employee case is a little different and the outcome often depends on the specific facts. This Illinois court of appeals case somewhat clarifies what it means to be a traveling employee and may put more workers in the “traveling employee” category, making them eligible for important benefits if injured.
If you have any questions about how this case might impact the outcome in yours, or questions about whether you might be considered a traveling employee, give us a call.
The Illinois Workers’ Compensation Commission is teaming up with other state agencies to crackdown on businesses that misclassify employees as independent contractors. Some businesses do this on purpose, and it’s illegal.
Misclassification affects workers’ compensation because independent contractors are not eligible for benefits if they get hurt on the job. Someone who is an employee does get benefits, including payment for lost wages while they recover, payment of medical bills and compensation for an injury that is permanent. So when an employer misclassifies employees as independent contractor, they don’t have to pay for work injuries.
Some business owners do this unknowingly, but others do it as a way to cheat the system, keep costs down and gain an advantage over the competition. Illinois says the recent crackdown is meant to focus on the second group – those who misclassify employees on purpose.
We’ve written about this issue before, and our point usually is that you need to make sure you’re actually an independent contractor and not a misclassified employee if you are denied workers’ compensation because of your status. An employer might point to your job title or description as a way to get out of paying benefits, but it doesn’t matter. Your status is determined not by your job title but by the way your employer oversees and manages your work.
Generally speaking, the more control your employer has over your work, the more likely you are to be an employee. If your employer tells you when to work, dictates how you do your job, provides tools, supplies, uniforms, or controls other aspects of your work in this way, then you might not be an independent contractor.
Misclassification is not only bad for injured employees. The state claims it’s bad for the economy, as well. Misclassifying employees robs workers of overtime. It hurts honest business owners who correctly classify their employees and pay workers’ compensation and proper insurance and taxes. These honest businesses have higher overhead and can’t provide bids that are competitive with businesses that keep their costs low by breaking the law.
If you want to talk to a workers’ compensation lawyer about whether you truly are an independent contractor, feel free to give us a call.
The third party in this instance is someone who is not your employer. Even if your injury occurs on the job, there may be someone else at fault for what happened. The reason to look into this is because the law doesn’t allow you to sue your employer for a work injury.
The workers’ compensation system is meant to used instead of the court system for work injuries. The idea is that you can get compensated more quickly, by receiving benefits from your employer’s insurance such as payment for lost wages and coverage of medical bills.
One major difference between filing a claim and filing a lawsuit is the fact that fault is not an issue in a workers’ compensation claim. In an injury lawsuit, one of your main objectives is to prove that the person you are suing is at fault for your injury. In a claim, you just need to show that your injury was work related. Even if your employer was at fault, or you were, it doesn’t matter.
So when can you can file a third party lawsuit after a work injury? The third party might be a property owner of the location where you were working. If you were injured by a hazardous condition on someone’s property while you were there doing your job, you might be able to sue them for your damages.
Another example of a third party lawsuit is when you are injured at work by faulty equipment. If you are using a machine that malfunctions and causes you to get hurt, you might have a third party lawsuit against the manufacturer of the defective part or machine.
We say “if” in these examples because each case depends on the circumstances. What we can say for sure is that it’s worth looking at all your options, including filing a workers’ compensation claim and pursuing any potential third-party lawsuits you might have.
The answer is yes. If you work for your employer part-time, and you are injured at work while doing your job, then you should be eligible for workers’ compensation benefits. Typical benefits include payment for a portion of your lost wages and coverage of your medical expenses. Lost wages are usually paid at 2/3 of your average weekly wage.
Note that if you are an independent contractor, you are not covered by workers’ compensation, regardless of whether you work part time or full time. However, make sure that you truly are an independent contractor before deciding not to file for workers’ compensation. Many employees get misclassified. Some employers will label you as an independent contractor because it benefits the bottom line, when in fact you are an employee. The key is not your job title but rather how much control your employer has over what you do when you are working. If you have questions about whether you are eligible for workers’ comp, give us a call.
Another thing to know is that if you have two jobs and you get hurt at one, your wages for both can count when determining how much you get in temporary total disability payments. So your checks for 2/3 of your lost wages could be 2/3 of your combined pay in many cases. There is an exception. Your employer at the job where you were injured must have known about the other job in order for both wages to count.
Although we try to explain things in a way that is clear, there is some gray area in all this. Let us know if you have questions. Do not take your employer’s word for it if they say you are not eligible for workers’ compensation. They may not know, or they may be trying to avoid a claim. If you are injured, your life is affected. Your life may be affected for a long time. Even if you feel well enough to work now, your injury could worsen. It’s in your best interest to know what you’re entitled to. Don’t take the advice of someone who isn’t familiar with workers’ compensation law.
We often say that hiring an attorney is a good way to help your case, but that’s not necessarily true if your attorney is lazy. In particular, they should not go on autopilot when handling your claim.
Lawyers who handle the same kind of cases every day have certain methods that work for them and work well, whether it’s the way they organize their files, interview witnesses or prep clients for trial. Doing the same thing over and over isn’t automatically a bad thing. What’s bad is when they take the easy way out rather than doing what’s best for you.
For example, a work injury lawyer should not send all of their clients to the same doctor. That doctor’s testimony might be solid, but when an attorney presents an opinion from the same doctor over and over again, case after case, it looks bad. The arbitrator is going to be suspicious and it could really hurt your case. It gives the impression that your attorney and that particular doctor have some sort of arrangement. This appearance of dishonesty – even if it’s not true – taints the doctor’s testimony.
This happens more than it should, and the insurance companies do it too, but that doesn’t make it a good practice. We want you to have the best chance at winning your case, and we believe this can make you look bad.
Hiring an experienced lawyer can make or break your case. We believe the best workers’ compensation attorneys are the ones who focus their practice on helping injured workers. They do this type of work day in and day out. They know the arbitrators, the other attorneys and understand how the insurance companies work. And they should understand how to best present your case, using the most credible experts.
There is a great line from the movie Animal House in which Chicago’s own John Belushi says, “Over? Did you say over? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor?”
Well, aside from being hilarious, it’s a great lesson for anyone that is injured on the job in Illinois. I thought of this the other day when a woman called me for help on a work injury that was 18 months old. She had slipped on oil at work and hurt her back. The insurance company told her that she didn’t have a case and she assumed that it must be true. So she no longer can work, is collecting social security and has thousands of dollars in unpaid bills.
Except she does have a case, a great case. And while I don’t blame her for being a trusting person, because she took them at her word she missed out on a ton of benefits. There are now a bunch of holes in her case, but fortunately it does appear that the lawyer we recommended she hire will be able to fix her case and recover what she is owed.
But she would have been way better off figuring out her options in the beginning and protecting herself. Had she waited much longer she could have lost her work comp rights forever.
The lesson is that you have to look out for you. If you don’t, no one else will. Maybe you don’t have a case. But if you don’t talk to someone who (like the insurance company) doesn’t have a motivation to lie to you then you are taking a big risk.
Illinois has a very strong workers’ compensation system for injured workers. In most cases the law is on your side and you can be protected. But the key is to get an advocate in your corner and understand your rights.
You keep hearing how terrible the economy is, but apparently that’s not true in North Dakota. A caller to my office was working for an Illinois employer and got sent to North Dakota to perform some work. Apparently everyone is drilling for oil up there. There are so many people working there in fact that the caller and his boss couldn’t find a hotel room. So they ended up driving to Montana to get a room and were involved in a car accident.
The caller reached out to me because the insurance company denied his case saying that he wasn’t working and under North Dakota law it’s not a compensable injury. Now I don’t know what ND law is and I don’t care because this is an Illinois case. He was hired in Illinois for an Illinois based company. That allows him to bring the case in Illinois.
And under Illinois law, because he was a traveling employee, his injuries sustained while traveling are compensable under the Illinois Workers’ Compensation Act. There is no basis for the insurance company to deny this case. But this is what insurance companies do. They save money by trying to discourage people. And they are successful enough that it saves them a decent amount of money.
So the bad news is his case was denied. The good news is that it’s such a bogus denial that once we file the paperwork and make a phone call, the problem should solve itself.
A meningitis outbreak has been linked to contaminated epidural steroid shots that are typically given for back pain. This could affect injured Illinois workers whose doctors prescribed injections to treat their work-related back injuries. It’s probably a one in a million risk, but a good lawyer makes his clients aware of every possibility.
Meningitis cases have appeared throughout the country, and the contaminated batches of medication have been traced back to a pharmacy in New England. The specialty pharmacy ships the steroid injections across the U.S., and it appears that the contaminated medication was sent to dozens of clinics in 23 states, including Illinois. The CDC estimates that 14,000 people may have received injections from three potentially contaminated batches.
The problem is a fungus that has been found in the vials of the steroid. When injected into a patient, the fungus can spread and attack tissues in the brain and the spine. It’s called fungal meningitis, and it is not contagious. Symptoms include nausea, vomiting, sensitivity to light, confusion and other mental side effects. Several people have experienced strokes. Note that symptoms may take weeks or even longer to appear. Most of the shots given were for spinal injections, but some have been used in joints (knees, ankles, shoulders), as well.
Odds are, you won’t get sick. However, if you have a back injury and your doctor wants to give you an epidural steroid injection, you should make sure it’s not coming from the bad batch. The contaminated medication has been recalled, but it doesn’t hurt to double check with your doctor before receiving an injection.
If you or someone in your family has suffered injury or death caused by a contaminated steroid injection, you might have a case for medical malpractice or a case against the manufacturer or pharmacy. Please contact us if you have any questions.
When you are hurt on the job and hire an Illinois work comp attorney, you are hiring them for that case only. So if you are getting a divorce or catch a DUI or have anything else come up, you’d have to find someone different for those cases (and if your work comp attorney wants to take on your divorce and DUI then that’s a sign they are the wrong lawyer for you).
Sometimes a job accident can lead to more than one case. For example, if you are driving a truck for a living and get sideswiped by another truck and break your leg, you would have both a workers’ compensation claim and a personal injury case.
Just like your work comp lawyer doesn’t have to take on your divorce, they also don’t have to handle your personal injury claim. But they do have a responsibility for letting you know that there are time limits for filing a lawsuit and quite honestly have a motivation to refer you to a PI lawyer that can handle your case.
For some bizarre reason, in the last year three people have called us to take over their work injury case and it turns out that they could have also had a personal injury lawsuit, but their work comp attorney never told them anything about it. In two of those cases, the time limits to sue had passed and the injured worker lost some of their rights. So now they were faced with having to sue their old lawyer for legal malpractice.
If your employer or a co-worker was negligent and that lead to you getting hurt, you can’t sue them. You are limited to just work comp. But if a third party is responsible for your injuries then you can.
Often we represent temp workers who get staffed at a business and have something happen like they slip on a wet floor or are hit by a forklift driver. In those cases there usually is potential for a lawsuit because it’s not their employer or co-worker that they’d be going after.
While the lawyer does have a legal responsibility to advise you of all of your rights, no one should care more about your life than you. So don’t be afraid to ask your lawyer questions and/or ask for a referral. If you wait too long you will lose these other rights forever.
It sounds like the most basic of questions, but one thing we as lawyers can sometimes forget is that even the brightest of clients usually has no experience with the Illinois Workers’ Compensation Commission. In fact I got this question recently from a very intelligent worker in Chicago. It was such a basic question that it took me a few seconds to even think of how to answer it because what seemed obvious to me clearly wasn’t. So for the benefit of anyone that’s been injured at work, here’s what you need to do to start a claim:
- Report your accident/injury to your employer. Technically you have 45 days to do so, but the sooner the better or you else you create a chance that the case will be disputed.
- Seek medical treatment and tell the doctor and their staff how you were hurt. If you were hurt on the job, the medical records need to show that.
- Ask your employer to complete an accident form
- Get contact information for the workers’ compensation insurance company.
To formally file a case, which prevents you from losing your rights due to statute of limitation problems, you would hire an attorney and they would file what is called an application for adjustment of claim. The lawyer can also get the insurance company information if needed and coordinate with your doctor as well.
It’s not a complicated process to start as it’s not a lawsuit, there are no filing fees and every case starts with the same basic form being completed. But if you’ve never had a case before it can certainly be complicated and a little scary. So any good lawyer makes those concerns go away and allows you to focus on your health.
The other day we blogged part 1 of why you might lose a work comp trial. Here is part two. The key thing to remember is that while your case may appear strong, there is no such thing as a guaranteed win. These are the next five reasons why you might lose a trial.
6. You delayed seeking medical treatment for too long. We represent a lot of laborers and a lot of retired soldiers. These are some of the toughest men and women you’ll ever meet and they are usually great clients because all they really want is to be treated fair, get healthy and get back to work. Sometimes they are too tough for their own good. For example, it’s not uncommon to find a guy that feels a pop in his back while working. This has happened to him before and he just keeps working through the pain. Finally after six months he goes to the doctor, but during that time he’s continued to work and do stuff like play softball or go bowling with his buddies until the pain was too much. On cross examination at trial, the defense attorney makes it appear that the original injury couldn’t have been too bad because two seasons passed without you ever seeking help and during that time you were able to live your normal life. If he can knock some holes in your story then the Arbitrator may believe you were really hurt doing something else.
7. You don’t know your rights. At least ten times a year someone will tell me that they never knew that they could even pursue an Illinois work comp case. It’s typically when someone has a repetitive trauma injury such as carpal tunnel syndrome or a back injury from lifting heavy stuff day after day. Usually we can help these people, but every now and then we come across someone who has waited too long to bring a case. Ignorance of the law and your rights is not an excuse. If you wait too long it will be too late. Don’t expect your employer or an insurance company to advise you of your rights.
8. The doctor you see takes terrible notes. It’s not a well known fact, but one of the biggest ways a case is decided is based on what you tell your doctor. If you get hurt at work, but your doctor writes down that you were really injured at home, your case is in big trouble. These doctors see hundreds if not thousands of people a year and there is no way in the future they will remember the real story. Sometimes it’s their nurse practitioners who right this stuff down wrong. Basically you tell them something verbally and hours later they realized they didn’t write it down so they take a guess as to what happened. Since these medical providers have no motivation to lie, an Arbitrator will assume that what they wrote down is what you told them. To cover yourself, if you don’t see them writing it down you can ask them. When you are registering, make sure to put down the truth of what happened. It’s shocking how often a case gets messed up because of this. It might not make you lose a trial every time, but it can certainly cause a big concern.
9. It appears that getting hurt on the job is a 2nd career for you. Trials are about two things: Facts and how reliable/credible those facts are. There is no law that limits how many times you can file a claim for getting hurt on the job in Illinois, but imagine two cases: Case one involves a 30 year employee who has never filed an Illinois workers’ compensation claim. In June he falls and hurts his knee. He doesn’t see a doctor until August and that doctor writes down that the patient doesn’t know how he got hurt. On the plus side, your supervisor admits that you did tell him right away that you hurt your knee. At trial you say you waited two months to go to the doctor because you hoped you’d get better and that you said you didn’t know how you got hurt because you assumed that it was from when you fell, but it also could have been from going up and down stairs for 30 years on the job and lifting a ton. I’d take that case to trial any day and I’d bet a nickel that I’d win. The client would appear credible because if he wanted to make up a case, why’d he wait so long. Case two has all of the same facts, except the worker has filed 20 cases in 30 years on the job, even for the most minor of problems. That makes it look like he’s abusing the system. An arbitrator isn’t going to believe that someone like that who is very familiar with the system would wait two months to see a doctor. And he’s also not going to believe that worker wouldn’t know to tell a doctor that the injury happened while working. All of that may be true, but your experience will make you look not credible. I’d bet that at least ½ the time a case happens like that the injured worker will lose. I would never take on that case.
10. Your lawyer is unprepared. Before I became an attorney and went to court, my image of a trial lawyer was someone who is smooth, graceful and ready. They didn’t have to be slick like OJ Simpson’s attorneys, but I never imagined that a lawyer would come to court unprepared. If you sit in on a trial at the Illinois Workers’ Compensation Commission, you are bound to see this happen. It’s shocking to see an attorney go to trial when they literally know nothing about how their client got hurt and what medical treatment they have had. The look on the Arbitrator’s faces when a lawyer is shuffling through papers to figure out what question to ask next is worth a thousand words as is the disgust on the face of the injured worker who realizes that they hired the wrong law firm. If the lawyer hasn’t prepared themselves, you can bet that they haven’t prepared the client either for what questions to expect from opposing counsel. Some of these guys have been doing it for so long that they don’t think they need to prepare and others just don’t care. The bigger worry is that they are un-organized when it comes to submitting your medical bills and medical records. I remember one case where an injured worker “won” the trial, but later learned that his attorney didn’t submit around $70,000 in unpaid medical bills. Oops. That worker was screwed and had to sue his attorney for legal malpractice to try and recover for the bills that he had to pay out of his own pocket. There have been other cases where a lawyer went to trial but failed to subpoena and submit treating medical records as evidence. How can you prove what medical treatment you had if you don’t show it to the Arbitrator? You can’t. If your lawyer doesn’t talk to you in advance of trial and tell you what questions they are going to ask, it’s a big red flag. And it may be why you lose even though with a semi-competent attorney in your corner the case would have been a slam dunk.
I could probably come up with 100 other reasons, but the ones I listed are certainly the most common. In fact it’s often why some attorneys are afraid of trial and make their clients take a bad settlement. We never promise a client a result, but we do guarantee that we’ll never lose a case because we didn’t prepare you or ourselves. Every attorney I work with and recommend is the same way.
They say things happen in 3’s, well it has been true for me. In the last week I’ve talked to three people that have something in common with their work injury case. They all live out of state, they all hired a lawyer in their state and they all could bring an Illinois work comp case if they want.
The first caller was in Wisconsin. He is a trucker that got in to a bad accident in Chicago. He settled his work comp case in Wisconsin for $85,000, but I estimate that the case if filed in Illinois would be worth closer to $400,000. So he could get an additional $315,000 here. The insurance company gets a credit for what they have paid and the rest is new money. Unfortunately for my caller, he waited too long to file his Illinois case as his WI case settled 3 years ago. We couldn’t help him and he missed out obviously on a lot of money. He may in fact have a legal malpractice case.
The second caller is also a trucker from Missouri who hurt his shoulder. His home terminal is in Missouri, he was hurt in Florida, but the company he works for is based out of Illinois and he was actually hired in Illinois. Since his contract for hire took place in IL he can bring a case here as well. I referred him to a downstate lawyer in our network and we should be able to help him get much better benefits. Illinois is a much better state for injured workers than any of the states that surround us.
The final caller was hired in Illinois years ago and then was transferred from his company to California where his knee injury took place. Because his original hiring took place in Illinois, he can bring a case here even though he hasn’t been back here for business for years. He has received some benefits through California and as long as he does not wait too long, he can get more benefits in Illinois.
In the big picture, the important thing to know is that no matter who you are you need to educate yourself as to ALL of your rights so you can make an informed decision as to what you want to do. As you saw with caller #1, if you don’t do that you are risking potentially hundreds of thousands of dollars and if you wait too long you are out of luck.
There is nothing different about representing a union member versus being the attorney for a worker that doesn’t have union rights. The Illinois Workers’ Compensation Act is the law on injured workers and determines what will happen with a case. So whether you are a union pipe fitter or a secretary, the same laws apply.
Despite this fact, there are some unions in Illinois that either force or strongly encourage members to hire certain law firms. I have no problem with a union steward saying, “Attorney Smith is a good lawyer and I think you should consider him.” But when they make it seem like you have no choice, I really question their motives.
I bring this up because in the last month I’ve had four phone calls from union members who all basically told me the same thing: They hired the law firm that they were told that they had to work with. Now their cases were not going well and the service they expect was not being given. When they complained to the union steward they were basically told too bad and that they can’t do anything about it.
My question is, why would a union care so much who their members hired for an injury? We hear all the time that certain law firms in town shower the union big wigs with gifts. There are stories of trips, flat screen TV’s, nights with strippers, cash payments, etc. It’s highly unethical and illegal, but it happens. The lawyers do it because they make so much money off the union guys that are in their pocket. The union guys love it for the perks.
Some of these firms do a great job, others not so much. But the bottom line is that you don’t have to hire them, us or anyone else in Illinois. You should hire the work comp lawyer that you feel is best for you.
If you are an injured worker and feel pressured to hire a certain firm, I suggest that you ask if they get anything in return for that recommendation. But the bottom line is that getting the best attorney for you will get you the best result. Getting the best attorney for the head of the union only benefits them. And as you can see by the multiple complaints we’ve received about these guys, once they get the case, no one really cares about you anymore.
Usually when I get a call about dirty tricks related to a work injury, it’s because the insurance company is trying to do something inappropriate. However, every now and then an employer does something immoral or illegal as I was reminded in a recent phone call.
I won’t name the employer, but a laborer in Chicago got what seemed like a good job earlier this year. He’s the keep your mouth shut, head down and do your job type of guy. In other words, he’s a dream worker for most employers. When they hired him, they told him that one thing about this job was that they don’t like to pay for work injuries so they ask their employees to sign a waiver giving up their rights to bring a claim if they get hurt on the job. He gladly signed as he had never been hurt while working before and didn’t plan to do so now.
Unfortunately he did get hurt when a pallet fell on his hand, breaking it in two places. He tried to file a claim, but was told that he couldn’t because of the waiver.
The problem is that it’s illegal to make an employee sign a waiver and even if they do, that waiver is not enforceable. So our caller has every right to bring a workers’ compensation claim and is doing so.
We rarely see employers trying to do this, but it does happen. The biggest thing to remember is that it is illegal and it’s a contract that isn’t valid so you don’t have to feel like you’ve given up anything. An employer or insurance company can never stop you from bringing a case. The final judge in these cases is not them, it’s an Arbitrator at the Illinois Workers’ Compensation Commission. So don’t be scared or intimidated. If you have an honest claim, the law is on your side.
If you are hurt at a company function that isn’t part of your job duties, there is one question to ask which will determine whether or not you are eligible for Illinois work comp benefits: Was it mandatory that you were there?
If the answer is yes, you win. If no, you lose. Two recent calls we received demonstrate this law.
Caller #1 was looking for a Glenview workers compensation lawyer after she tore her meniscus at a company softball game when she slid in to 3rd base. Aside from noting that she’s some competitor for sliding in a friendly company game, she made clear that she did not have to be at the game at all. Her boss had everyone over for a barbeque and they played in a field behind his house. She did tell me that she felt it would have looked bad if she wasn’t there, but there was no threat of termination if she didn’t show up or docking of her pay. And she did admit that two co-workers did not attend.
Caller #2 needed a Waukegan work injury attorney. He hurt his back while bowling. But unlike caller #1, it was mandatory that he be there for a “team building” exercise. He wasn’t told that he’d be fired, but there was a memo from the employer that said it was mandatory that they all participate. And even though he’s a salesman, because he had to be at the bowling event, when he felt a pop in his back after throwing the ball, that became a compensable work related injury.
Many of you are probably at companies that have some sort of summer outing or holiday party in the winter. If you get hurt at those events, it really does come do whether or not you had to be there. Sometimes your employer tells you it’s mandatory. Other times you are entertaining clients so that is enough to get it covered. We’ve helped in cases where the employer made it clear that the employees had to be there by telling them that if they didn’t show up they’d lose a vacation day or get docked pay.
So hopefully you don’t get hurt any time, especially at events that are supposed to be fun. But if you do, think about what would have happened if you weren’t there. That will tell you whether or not you have a work comp case.
Repetitive trauma is a type of injury caused by doing the same motion over and over again. Illinois workers’ compensation generally covers repetitive traumas that are caused by your job. Activities that cause repetitive stress can be anything from computer work to heavy lifting or even twisting.
Common symptoms of repetitive stress injuries include numbness, tingling and radiating pain. Carpal tunnel syndrome is perhaps the best known example. Other repetitive stress conditions include DeQuervain's tenosynovitis, trigger finger problems, radial tunnel syndrome, cubital tunnel syndrome or ulnar nerve compression.
If your workers’ compensation claim for a repetitive trauma is denied, it might be because your employer’s insurance company disagrees that your work actually caused your injury. Claims are denied for many reasons, and it’s in the insurance company’s best interest to do so. Don’t be discouraged. Your attorney can request a hearing, present your case in front of an arbitrator, and fight to get your benefits approved. These cases are often denied simply because the worker can’t pinpoint a specific time and date that they were hurt and the insurance company can usually find a hired gun doctor to say that the injuries are not work related.
It is important to get help and advice from professionals who are familiar with repetitive trauma injuries. Your doctor, as well as your lawyer, should have a lot of experience in this area. As with any workers’ compensation case, don’t attempt to negotiate with the insurance company on your own and don’t give them a statement as that can be used against you. A denial of your case isn’t the end of the world, in fact it’s very common. That’s why you hire a lawyer, so they can pursue benefits for you.
The deadline for filing a workers’ compensation claim in Illinois is three years from the date of the injury or two years from the last payment of benefits related to your claim. For injuries like repetitive stress trauma, where there is not a single date when the injury occurred, the deadline is three years from the date that you knew, or should have known, that your injury was work related.
If you suspect you have a work-related repetitive stress injury, see a doctor. And don’t wait too long to file a claim. In order to meet the deadline, you or your attorney will file an Application for Adjustment of Claim with the Illinois Workers’ Compensation Commission.
We have been involved with all sorts of cases over the years for Illinois injured workers including the representation of professional athletes. Some of them, just like many of our other callers, didn’t know that they had the right to bring a case or what the case might be worth.
Representing athletes is unique because if they play a major sport they make a lot of money, but their window for earning that money is limited. Even the best athletes in the world can’t beat Father Time. But if the athlete suffers an injury that causes his career to end or speeds up the ending, he/she is entitled to the difference of what they used to be able to make versus what they are now able to make (subject to a cap). This is called a wage differential claim and in my opinion, most athletes should get it. I say this because you almost never see an athlete that isn’t broken down at the end of their career to the point that their injuries are the reason they have to either stop playing or can’t make nearly what they used to.
I thought of that this week when I was watching Brian Urlacher (who we do not represent) going through practice at Bears training camp. He’s still a great player, but also far from who he was years ago on a physical standpoint. He’s had neck surgery and knee surgery and now wears a knee brace. He could receive a settlement for both of those injuries. But I’d argue further that when his career ends, and it probably will in the next two years, he’s also entitled to wage differential benefits because there will be no way he can earn close to what he used to earn. This will be in excess of $50,000 a year for him, tax free, if he so chooses to pursue it.
Another player that made me think of this topic was Darwin Barney on the Cubs. He got hit in the head with a baseball and had to sit out a game. It looks like he’ll make a complete recovery, but I remember years ago the Cubs had a player who got hit in the head in his first at bat in the majors. He never played a game again. So even though he was able to play baseball again, he went from a $400k salary (for a couple of days) to whatever they make in the minors.
Just like you as a worker are covered for work comp benefits on the day your job starts, so was that Cubs player (I think his name is Seth Greenberg). So he could have filed for benefits and have been compensated for the rest of his life. I’m guessing that he never knew it, although most major league guys do appear to learn their rights through the union, he wasn’t around that long. I’m actually shocked by the number of minor leaguers and Arena League football players I talk to who had no clue they were covered under the Illinois Workers’ Compensation Act. That said, I did once represent a football player from Rochester who was hurt in Illinois and knew that he could bring his case here where it was worth more money.
Because of the work I do, any time I see any athlete go down on the field, my instinct is to think of what happened to them from a work comp standpoint. They are usually great cases because the accident is caught on film and we have plenty of witnesses. Also the employer has every motivation to get them the best medical care right away unlike some factories that try to stifle a workers’ recovery. So the next time you see an athlete go down, think about work comp. That way I won’t be the only one out there who has lost the ability to just relax and watch a game.
We get so many thoughtful questions from our clients and readers. We had one the other day from a caller that may seem basic, but it really isn’t. He wanted to know what he should tell his doctor.
The back story for him was that he never had a specific injury. The repetitive nature of working his job led to pain in his elbow and what he feels is a need to seek medical care. He wasn’t sure what to tell the doctor about how he got hurt and his belief that his injuries are work related.
Our answer to him is the same that we tell every person that contacts us. First and foremost, be honest. Don’t embellish anything, don’t make anything up, don’t tell the doctor what you think they want to hear. Just tell the truth. In this case he needs to be truthful about the type of work he does, the pain he notices, when it happened, prior problems, etc.
Second, when talking to a doctor, don’t assume they understand your job. It’s really important to be as detailed as possible about your job activities, especially when you believe you have a repetitive trauma claim. So don’t say, “I work as a line worker and my elbow hurts me.” Do say (assuming it’s true), “I work as a line worker at a factor. My job involves me standing in the same spot for at least eight hours a day. During that time I handle approximately 500 parts that I help put together for the product we make. I’ve been doing this job for five years and recently began working a lot of overtime. I’ve begun to notice that my elbow is painful at the end of the shift. Whenever I put a part together I have to twist my arm and this happens at least 200 times a day. My elbow seems to be better after the weekend, but on Friday after a long week it’s really painful. I’ve been taking Tylenol for a month now, but that’s no longer working.” Etc.
If you look at my second example it’s clearly more descriptive and helps the doctor understand the situation. This allows you to then ask if he agrees with you that your job has contributed to your situation. If the doctor says yes then you should win your case.
Never assume that a doctor knows what your job involves even if you think he should. Even if you are a fireman, make clear how often you lift a hose, clean the truck, unload equipment, etc. I have some friends that do that job who sit around all day and do nothing and others that are constantly dealing with fires and emergency situations. You don’t want your doctor to assume based on their life experiences what your job does. Being honest and descriptive gives you the best chance of getting a true opinion from them as to how they feel your job has impacted your Illinois work injury.
If you were to go on the website of most Illinois personal injury lawyers, you’d likely see a link that shows their success in certain cases. Many of them have results in the 7 figures which looks all nice and shiny to the reader. It is actually a good sign if you have a million dollar case and the law firm you are hiring has a track record of winning/settling those cases. That said, if a case is worth 5 million and a lawyer settles it for 2 million, that doesn’t mean it’s a good result. 2 million is a huge number, but if it’s only 40% of what the case is worth then it’s a failure no matter how large that number sounds.
Most work comp law firms in Illinois don’t have a website page that details their success. That is mostly because a work injury claim is almost never worth a huge amount, especially if you make a huge recovery. The largest work comp case I was ever involved with in Illinois settled for $800,000. That was for a client who was totally disabled and dead within two years of the settlement. That’s rare and of course you wouldn’t want to trade places with them. A “big” work comp case typically goes for between $200,000 to $400,000, give or take a few dollars. Again, that doesn’t mean your lawyer was successful for you. If the case has a settlement range of between $150k and $300k and your lawyer gets $200k for you, that is a lot for work comp, but it doesn’t mean they did a good job. If they could have put an extra 100k in your pocket with some hard work and didn’t do it then you should be furious.
Most cases we get involved with involve a worker who got hurt, received medical treatment and returned back to their job. No matter how bad the injury was, a case like that is never going to go for more than 100k unless the worker was a high wage earner and had some medical procedure like a spinal fusion.
So the key to having a successful case is figuring out what the lowest amount a case could settle for and the highest amount it could go for and getting as close to the high amount as possible.
Recently we were involved in a case where our client hurt his wrist and had two surgeries. The settlement range was approximately between $40,000 and $65,000. The case settled for just over $63,000 and in an unusual step, our client was able to keep his right to medical care at the expense of the insurance company open for the rest of his life. In other words, if he has a wrist problem in five years, they will pay for it. This is basically the best result possible in my opinion and we are thrilled.
Now if I put on a “success” page that we settled a case for $63k you’d probably think that’s no big deal. It’s not a big deal as it’s our job. But while we’ve been involved in 12 cases this year that settled for somewhere in the six figures, don’t assume we did a great job on those cases because they are big numbers (we did do a great job by the way J).
If you are involved in a case, ask your lawyer, when the case is close to the time it will settle, what’s the range of fairness for a result. Your goal should be to get to the highest part of the range as possible. And hopefully your attorney is honest with you in what the range is.
Finally, I know of one Chicago work injury law firm that gets a lot of clients by telling them about all of their “big” results and at times I’ve heard they promise a settlement amount up front to encourage a sucker, er client, to sign. There is no way in the world a lawyer can honestly tell you what your case is worth in the beginning of a case. We can tell you that it has value or doesn’t, but if some lawyer tries to convince you that they’ll get a certain amount you can trust that they are full of it and you should run away.
Generally speaking, to receive Illinois workers’ compensation benefits, you need to show that your injuries arose out of your employment (e.g. your job duties) and in the course of your employment (e.g while you were working). So if you work in an office building and leave at lunch for some food, injuries that happen off site are usually not covered. That said, there are some exceptions to this rule.
In a recent case that went to trial (not handled by our office or anyone we work with) an injured worker and their lawyer were able to successfully argue that a bank employee was entitled to benefits when she tripped and fell on her way to lunch. She won the case because she was doing work, in this case that meant attending lunch with a sales person.
Being at the lunch was required by her supervisors (in the course of her employment) and meeting with sales people was part of her job duties. Beyond that, the bank was paying for the lunch which made it a work activity although it was more important that it was a mandatory part of her job duties.
Since the employer benefited by her being at the bank, she won her case even though she was taking a meal break as part of her job duties.
The moral of the story is that there are no absolutes under Illinois work comp law. Sometimes you might have a valid claim when your co-worker would not. So if you get injured, speak with a lawyer that knows what they are talking about or more than one if need be and get a legal explanation as to why you do or don’t have a case. It would not have surprised me if some law firms didn’t pursue this claim, but one lawyer had the guts and brains to do so and their client benefited.
We just settled a case for over $300,000 in which we and some lawyers we work with represented a man who was brutally attacked by a co-worker, suffering a skull fracture and bleeding on the brain. It was an awful attack and as big as the settlement was, our client will never be the same. He’s in his 60’s and probably was going to retire soon anyway, but that doesn’t diminish the injury itself.
We were able to succeed for him because he was attacked without provocation by a worker who was upset that he had loaded his truck delivery in a certain area. Of course that is no reason to beat someone, but it happened.
The benefits were secured because of two things: 1. Our client was not the aggressor and 2. The reason for the attack was work related.
Under Illinois law, to win benefits for a work place fight, you can’t be the one that started it (even if you lose) and the reason for the fight has to be related to the job. So if the jerk that attacked our client did so because they were arguing about a baseball game or fighting over a girl or what to watch on TV that night or anything else that wasn’t related to the job, our client would have been messed up and would have had no workers’ compensation claim. But because he was attacked over where he unloaded his delivery, that is work related and allowed him to pursue benefits.
Who was the aggressor and what the fight was about can be open to interpretation. If you get asked by the insurance company to give a recorded statement you should not do it. It’s really something for your lawyer to handle as we’ve seen cases blow up when a skilled insurance company employee twists around words to make it sound like there is a non-work related reason for the fight or that the victim was the aggressor.
Our client was just a hard worker, minding his own business when he was brutally beaten. We were thrilled that he got a great result to his case and would be happy to help any other worker that gets injured.
On a side note, we have also represented workers who were beaten up on the job, but not by fellow employees. Usually it’s a customer that goes crazy. The test again is did our client start it or not and what was the fight about. So if your girlfriend’s ex attacks you because he’s jealous, that is not a case. But if you get attacked because a customer isn’t happy about your service or your company then you’d have something to go on.
I received a call recently from a guy who lives in Texas and works for a trucking company. He originally worked for that company out of Illinois over 20 years ago. He was hired here, but never actually worked a day in Illinois. They immediately transferred him to Texas and he’s been there ever since.
Recently he hurt his back and is filing a workers’ compensation claim. Texas has one of the worst if not the worst systems for injured workers in the country and from what I hear, workers regularly get screwed. Illinois has probably the best system for workers as long as you know what you are doing.
So the caller wanted to know if he could file his case in Illinois and the answer is that he can. We have a law that says you can bring your case in Illinois if one of three things is true: 1. You were hurt here; 2. You principally work out of Illinois; or 3. You were physically in Illinois when hired.
In this case, the caller took a physical in Illinois and then was offered the job in Illinois. He accepted on the spot and then took the transfer to Texas. That was 20 years ago, but it could have been 100 years ago and the answer would still be that he can file his case in Illinois.
This is a huge victory for the worker as he will be able to choose his own doctor (not true in Texas), will receive higher compensation for his time off work, can make it so a nurse manager from the insurance company doesn’t interfere with his medical care and when all is said and done he would be entitled to a settlement that truly reflects the nature of his injury.
Moral of the story is that if you are injured and have any connection to Illinois, you would be wise to see if you can bring your case here. The insurance company is not going to look out for your best interests. If you don’t, no one will.
A recent caller had a horrific leg injury and wanted to know that if he would be eligible for a settlement because the injury is so bad.
The answer to him and anyone else with more than just scrapes is yes. This caller’s case appears to be worth much more than your average case, but that doesn’t change the fact that almost every injury leaves some sort of permanent problem and is worth something.
We don’t take on cases that just involve contusions or strains that resolve quickly. But herniated discs, broken bones, carpal tunnel, torn ligaments, etc. are matters that we regularly get involved with and would be happy to talk to you about. We limit ourselves to these cases because we and the attorneys we work with on cases spend a lot of time getting the best result possible so we limit our efforts to those that really need us.
Just because most cases should receive a settlement, that does not mean an insurance company has to give one. They usually offer nothing and tell you that your case has been closed. Unless you wait too long, they can’t close it without your approval and while they might close your file, we can re-open it by formerly filing the claim with the state (again, assuming you don’t wait too long). At that time we would get you a settlement when the time is right or go to trial and get an award from the Arbitrator.
Above all, don’t be like the nice caller I mentioned earlier who was told by a friend that he might not be eligible for a settlement. The well intentioned friend was dead wrong.
We received a call from a guy who wanted to know if I thought he had a case. Long story short is that he operates a forklift and has to keep his left foot pressing down on the break to make it lift. While he was doing that job, a vein in his leg burst.
The insurance company denied his case and their reasoning was that he was just sitting and standing while doing this job which is an activity the general public has to do. In other words, he could have just as easily burst his vein standing at home than he could at work. Being at work when hurt isn’t the same thing as being hurt because of work.
He accepted this decision until his wife encouraged him to seek a 2nd opinion. When talking to him we learned that he has to press down on the break and it requires some force by his leg. This isn’t something the general public does or he does in his normal every day life. In other words, his work activities, in my opinion, played a role in him getting hurt. If a doctor agrees that his pressing down on the break increased the chances of the vein bursting, he wins his case.
Of course if you ask the insurance company if you have a case, you can’t expect them to look out for you. They have a financial motivation to tell you that you have no case. Most insurance companies send a standard form letter when they deny a case instead of providing a real analysis as to why they think they owe you nothing. Sometimes they are right, but you would be foolish to take their word for it.
We reviewed a case recently of a worker that years ago had a seizure disorder. He took medication for it which got the problem under control. Unfortunately the meds made him feel bad so he stopped taking them.
Fast forward to a few months ago. He has a seizure at work and hits his head on the ground resulting in a broken nose and a concussion. It happened while he was working so he wanted to know if he had a workers’ compensation claim.
We didn’t take the case on. First, it’s arguable that he put himself at risk by not taking his meds. Reckless behavior can get your work comp case denied. But to me, there was nothing about the job that contributed to the ultimate injury. It just happened to be that he was at work when it happened.
My opinion would have been different if he had some risk with his job such as working on a ladder or scaffold. If he was up on the ladder when his seizure happened, his fall to the ground would have been much farther. There would be an increased risk of injury from something related to the job that is unique. In other words, whether at work or home or the store, you are often standing. But being on a ladder is more unique to the job. It’s not that you can’t ever be on a ladder (or scaffold or driving a forklift, etc.) outside of work, but doing that activity at work creates an increased risk of injury.
This is true for many types of cases. We once helped out a truck driver that had a stroke while driving. There was nothing about the job that caused the stroke, but being in a truck led to a crash that caused injuries and being in the middle of nowhere made it so he had to wait much longer for medical care.
Moral of the story is that if you have something physically wrong with you that leads to an accident, ask yourself if something about your job duties made things worse. If you can’t think of anything then there probably isn’t a case.
It’s pretty much common sense that if you hurt yourself while working, you should receive Illinois workers’ compensation benefits. You lift a box and feel a pain in your back, that’s clearly a work related injury. What’s not necessarily common sense is that if you injure yourself while on a break you can also receive benefits.
Under the personal comfort doctrine, Illinois courts have found that an employer benefits when employees get rest time like smoke breaks, lunch, etc. So if you have an injury on one of those breaks, you might have a case if something about the job increases your risk for injury.
I just re-read what I wrote and it sounds confusing to even me so let me give you an example. Let’s say you are given 15 minutes a day to smoke, drink coffee, surf the internet, etc. You go outside of your building to smoke and while walking back in you slip on some ice and twist your knee. Even though you weren’t doing your job when you got hurt, you were at an increased risk of injury because of the ice. If that happened to you, you’d be eligible for benefits.
On the other hand, if you were smoking and dropped your cigarette, if your back just went out from bending over to pick it up, that would not be a case because you are not at an increased risk from anything related to your employer.
Bottom line is that you should never assume you don’t have a case. Call us or some other qualified law firm to review your situation and see what options you have.
I had a call from a nice guy who was a manager at a Chicago area company. He got hurt when he slipped on a wet floor and tried to file for workers’ compensation benefits. He was told, allegedly by the insurance company that he was not covered because he had been promoted to manager.
Another recent caller had the misfortune of getting hurt on her first day on the job. Like the other caller, she was told that she was not covered because she hadn’t worked there long enough.
Finally, a few months back I received a call from a teenager who was hurt while working. His boss said that because he was a part time employee, workers’ compensation laws in Illinois did not apply to him.
Of course all of these people are eligible for Illinois workers’ compensation claims. It doesn’t matter if it’s your first day on the job, if you work part time or even if you are the CEO of a company. You are all covered and you can’t waive your rights to workers’ compensation benefits. The only exception to that is if you are an owner of a company.
So don’t listen to anyone that tells you otherwise. Always explore your options, especially when the person telling you “no” has a motivation for you not to receive what you are entitled to.
We received a call from a nice woman who unfortunately received many stitches from a cut on the job. Her question was whether or not she would be entitled to any compensation. The laceration happened two weeks before she called us.
The answer to that question is it depends. We need her to wait six months to see if there is a scar there at that time. If it is, she would be entitled to some sort of compensation depending on how bad the scar is. It’s completely subjective and the value would be based on how big it is, where it’s located (scars on the face are worth more), whether or not it’s raised, the color and anything else about the appearance.
When we can’t agree with an insurance company what a scar is worth, we typically just bring the client before the Arbitrator and get their opinion because they don’t need any other evidence other than to look at the client. And if the Arbitrator offers you an opinion it would usually be dumb not to take it when it comes to a scar case. That said, we do, when appropriate, present the Arbitrator with past decisions that we think should influence his/her findings.
The only time a scar doesn’t have any value is when it’s above the knee or below the breast line. The theory is that these areas are usually covered so the scar shouldn’t cause any harm. I totally disagree with that line of thinking, but that is what the law says. However, if you have a scar in those areas, most of the time we can get some compensation for you under a permanency theory.
Finally, I once had a caller ask if they could get plastic surgery to reduce the appearance of an ugly face scar. My opinion is that if a doctor deems it medically necessary and it stems from a work accident, then you should be able to make the insurance company pay for it.
When you hire an attorney for an Illinois workers’ compensation claim, you are only hiring them to represent you on that part of the case. Even though that’s true, they should tell you of things that are legally obvious and important on your claim. The number one thing they should let you know is if your work injury would also lead to a personal injury lawsuit. They don’t have to represent you on your case, but should tell you that you might have a lawsuit and that there are time limits for pursuing the case. That’s the bare minimum. One letter should cover them.
There is an attorney in Aurora who handles work comp and he doesn’t have a reputation as a go getter. But he had a client with a great injury that was caused by the negligence of someone else that didn’t work for his company. It had the potential for being a great personal injury lawsuit for his client and quite honestly, this lawyer could have referred the case out and made a nice referral fee off of the claim if he recommended a good Illinois personal injury attorney.
But the lawyer did nothing, two years passed and the client lost his rights to even bring a case. He discovered it when it was too late and ended up in the hands of a legal malpractice lawyer I know who was nice enough to share the story with me. The case just settled because there wasn’t much of a defense that could have been made.
Moral of the story is that you should feel free to ask your lawyer about anything that is related to your case. They don’t have to represent you for anything but the work injury. However, if they won’t answer questions it may be a sign that they just don’t care about customer service. And in the worst of scenarios, it may actually be legal malpractice.
When you have an Illinois workers’ compensation claim, the best thing you can do is focus on your health so you can better and hopefully return to the normal state you were in before your injury. The last thing you need is an insurance company making your life miserable by making you jump through hoops. But it’s even worse when they pay your bills after negotiating with your medical provider and then you receive a collection letter.
Let’s say that you have an MRI for a knee injury and the hospital normally charges $1,500 for that procedure. The workers’ compensation insurance will never pay the full amount, so let’s assume that they paid $800. That leaves a balance of $700.
Under Illinois law, it’s illegal for the hospital to go after you to try and collect a penny of that $700. You don’t pay for any of your medical care under Illinois work comp law. Yet every day, hospitals, doctors and other medical providers send bills and in many cases hire collection agencies to try and get you to pay. All of this is illegal. You should not have to incur any additional stress.
The good news is that we know some Illinois class action attorneys who are doing what they can to put an end to this practice. They are looking for injured workers who are victims of this process which is called balance billing.
So if this has happened to you, don’t panic. There is an easy, free way to stop it. Give us a call and we’ll hook you up with an attorney that can make it go away.
A potential client asked:
If I got sick and work and vomited and the force from the motions injured my back and am now off work needing injections in my back and MRIs is that a workmans comp case?
That’s a really good question and interesting scenario. And like many Illinois workers’ compensation questions we get, the answer is “depends.”
Just being at work and getting injured doesn’t mean you have a case. You have to show your injuries arose out of your job duties as well as that they happened in the course of your job duties. In plainer English this means that to win a case you must prove you were doing your job when the accident took place.
In this case, the client threw up, but the question is why. If it was because of the stomach flu then he has no case. That wouldn’t have been an injury that arose out of his job duties. On the other hand, if he threw up after seeing a dead body during a job investigation or from inhaling noxious fumes or after getting sick in the hospital they work in then it would likely be a case.
The bottom line is that when we discuss a case we ask probing questions as this is how you tell if you have a claim or not. But never assume that you don’t have a case because you were doing an activity that could have happened anywhere. Every case is fact specific and after listening to your unique facts, we’ll let you know what we think. We’ll never tell you what you want to hear to make you feel good, but we’ll always tell the truth.
A workers’ compensation case recently decided in Illinois put a hotel housekeeper on the defensive about the relevance of her job duties. She was hurt while bending over and making beds as part of her work day, and was apparently told that this activity was no different from what others do in their daily lives, and so she could not access workers’ compensation benefits. Fortunately, at the end of her case, her position won out, and she was able to recover.
The housekeeper, among other duties, was responsible each day for changing the sheets on many king-size mattresses. Even more specifically, she was required to bend over and lift each corner of the mattresses while folding the sheet around the mattress corners in a particular way. In the process, she ended up with severe back pain and was diagnosed with a bulging disc.
Even though most people make beds in their daily lives (or weekly lives), this job was no ordinary bed-making. Had the worker been making beds in the way and with the frequency that people do generally, then this might not have been a work-related injury. But this was not the case.
Instead, she was performing this task much more frequently than even anyone could possibly do at home. The conditions surrounding the activity were also unique to her job duties. She could not choose to have a lighter mattress—she had to lift king-size mattresses. She could not choose to just tuck the sheets around in a way that would have been quicker and easier. She had to make “hospital corners” with the sheets. This involved much more prolonged bending and lifting.
The decision came down in the case saying that even though the job duty may be an activity common to people outside the job, it could be a work injury if the risk was unique for the employment. The housekeeper’s job duties increased her risk of injury, and therefore she was able to recover benefits.
Other workers have similarly been able to show that their injuries were work accidents, though they were seemingly ordinary activities. For example, where jobs require very frequent bending and stooping, and there is something unique about the circumstances, then this ordinary activity can become a work-related activity if there is an injury. The cases look to see whether there is something about what you are doing for your employer that increases your risk of injury, and would then entitle you to workers’ compensation benefits.
In order for us to take on a client’s case, you have to choose us to be your lawyer and we have to choose to take you on as a client. Aside from liking to help people, let’s be honest, we are in the business to make money. So we want to get new clients and we hope that you have a good case that we can take on and make some money for us and you as well as make sure you don’t get screwed over.
We’ll reject a case if it’s a minor injury. From a selfish standpoint there is no money to be made off of a finger contusion and that case would take time away from helping our more seriously injured clients. We won’t take your case on if we believe you aren’t being honest and if we take you on and see that you are lying, we’d drop you as a client. I’d expect you to do the same if you found out we were lying (that won’t happen). Taking on the case of someone trying to game the system makes us look bad and hurts our other, honest clients.
We’ll take over a case if you’ve had a lawyer already and it’s clear that attorney isn’t doing a good job. We usually get calls about the same firms. But we won’t take over from another lawyer that is giving the same advice we would give. We also won’t be the 4th or 5th lawyer on the case. If you make a mistake hiring your first lawyer, you better get it right the 2nd time or it will be almost impossible to find a good firm at that point.
Because we are in a case for business, we also will reject a case if the client comes to us and there has already been a significant settlement offer that we won’t be able to improve on enough. If an offer has been made, we only get paid f we get the offer increased. Insurance companies know this and will often make a low settlement offer that is high enough to scare away attorneys. Recently a client came to us. She had a major back injury and could no longer work her job. She had been offered around $70,000 to settle her case. After an analysis, we determined that the value range of this case at trial was $70,000 on the low end and about $110,000 on the high end. But since we could only get paid if we got her more than $70,000, it forced us to decide to spend money on depositions and other case expenses with the hopes of getting 110k. We realistically felt the case was likely to go for $90,000 which means we’d be paid as if we got the client $20,000. Of course there was no guarantee of that and we rejected the case and decided to focus more on the clients that need our attention.
Does some of this sound harsh? It probably is, but it’s honest and our policy is to be brutally honest with the people that come to us for advice. Most people love that, some don’t, but we don’t think we believe that we help anyone by sugar coating our opinions. It’s how we want to be treated and when you consider that we expect complete honesty from our clients, it’s the only way to act.
To qualify for worker's compensation benefits, you must be "injured in the course of your employment by a risk arising out of your employment."
When you drive to and from work everyday, you are not covered under worker's compensation. In other words, if you get into a car accident and are injured on your way home from work, you will not be entitled to worker's compensation benefits. Of course, there are exceptions to every rule so be sure to consult with an Illinois lawyer who handles worker's compensation cases, but this is the general rule.
On the other hand, if you get into a car accident and are injured on your way to a client site - something that is part of your job and that you are paid to do - you will be covered under worker's compensation.
Similarly, if you are injured on a business trip out of town, you will get worker's compensation even if you are not technically working at the moment you are injured. For example, if you are on a business trip and go out to dinner after work and are injured at the restaurant, you will be covered under worker's compensation.
The standard for coverage while traveling for work is whether what you were doing at the time is considered "reasonably foreseeable." If you are traveling for work and staying at a hotel, it would be reasonably foreseeable that you would go to dinner at a restaurant. Therefore, if injured while doing that, you will get worker's compensation benefits.
Possibly the most notorious example of this was a case where a worker was on business in Hawaii and got hurt riding a bike around a volcano, which is clearly a tourist activity. However, it was reasonably foreseeable that someone who travels to Hawaii for work may do this activity while not working and so was entitled to worker's compensation benefits.
Intoxication, though, is not considered reasonably foreseeable under Illinois law. So, if you get hurt while doing something while on a business trip and are found to have been under the influence while doing it, you will not be covered under worker's compensation.
Under Illinois law, attorneys' fees are limited to 20%. So, your attorney cannot receive more than 20% of the total award you receive. However, in some cases, attorneys' fees may be added to the total award.
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.
It’s hard to imagine an event more related to work than the moment you find out you are losing your job. But recently the Illinois Worker’s Compensation Commission decided against a police officer who was injured when she fainted after being surprised by her termination. The officer’s firing had apparently come without warning. When she heard the news, she was so shocked and upset, that she fainted, and in the process injured her forehead and knee.
There was no apparent reason for her fall other than the emotional trauma she had just experienced. There was nothing in her surroundings and no other fact about her job that seemed to contribute to her fainting or her falling; or that made her injury from the fall worse. Because of this, she was denied workers’ compensation benefits. The arbitrator found that there was nothing about her workplace conditions that contributed to the fall or to her injuries.
In a situation like this, it would have seemed like a good argument; that the stress from suddenly losing your job can set off a physical reaction like fainting. And the fainting then is connected to work, because certainly without being involved in employment, you can’t be terminated from employment.
The claim was denied, though, because even though firing is a function of work, being laid off or terminated is a stress that everyone faces at work, and it’s not a stress specific to her employment. It is an unfortunate reality that most people go to work every day with the possibility that they could lose their job. So her fainting after firing remains a risk that is only unique to her personally, and not to her work.
The decision to deny benefits did seem to leave open the possibility that if there was some medical testimony or record that showed there was something about her specific firing that caused her to faint, the results may have been different. So every situation is worth looking at to see if its own special facts can end with a different result. But without anything more, losing your job, though very traumatic, is not likely to result in an injury that can entitle you to workers’ compensation benefits.
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.
I had two contacts today that are really telling.
The first was a woman looking for a work injury attorney in Joliet who had herniated two discs in her back in 2007. All of her bills were paid, but she never got a settlement.
The second was a reader who said the following:
I was injured on my job back last year and it was found that I have 2 bulging disks. I was treated with 2 separate courses of physical therapy and medication. I was released from the Dr. in April 2011 and waited patiently for the Insurance Co. to call me with a settlement offer. They never called!! I decided to call in the early part of July and was told that my case was closed and I wasn't due anything because I didn't miss any days of work due to my injury. Is that correct?
One of my favorite movies ever is Animal House. The best quote is from John Belushi, “Over? It’s not over until we say it’s over. Was it over when the Germans bombed Pearl Harbor?”
Under Illinois workers’ compensation law, the case can not just be unilaterally closed by the insurance company. The reader who e-mailed will see their case magically re-open after they hire us because we will formally file the case with the state and they will get a settlement or a winning verdict after an arbitration.
Injured workers have three years from the injury date or two years from the last payment of compensation related to the claim (whichever is later) to formally file a case. Unfortunately for our first caller, they waited too long as they haven’t treated since 2007 and she told us that all of the bills were paid that year.
So don’t delay as you can lose rights if you do, but also don’t forget the words of Bluto Blutarski. It’s not over until we say it’s over.
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 obvious result is that you won’t get workers’ compensation benefits, but in addition, you might be hurting your future and your health.
We hear from people who don’t want to file a claim because they don’t want to cause problems, because they feel pressure from their employer to not file a claim, because they’re embarrassed to make a big deal out of their injury or because they don’t want to get lawyers involved.
We understand all these concerns, but they aren’t as important as your physical health, and your financial well being. Keep these things in mind:
- Filing a claim for workers’ comp is not a lawsuit against your employer; it’s a claim against their insurance policy. You are not suing anyone.
- If you use your regular health insurance instead, and they find out, they can sue you for the amount they paid (because it was a work injury and therefore not their responsibility)
- If you use your regular insurance, there may be limits on your treatment. In workers’ compensation, you are entitled to all the medical care that is reasonable and necessary and related to your injury, even if it takes years and requires multiple surgeries.
- If you change your mind later, it might be too late. You are supposed to notify your employer of a work injury within 45 days or your claim could be denied.
Talking to an attorney is confidential. If you are having doubts, we encourage you to do this. Unlike any advice you get from your employer, or their insurance company, a lawyer will be looking at it with your best interests in mind.
We were recently contacted by a Chicago union laborer who had severely injured himself on the job and had permanent restrictions of no lifting more than 20 pounds.
Under Illinois law, if your employer can not accommodate your physical restrictions and you are as good as you are going to get medically speaking, they should offer you vocational rehabilitation. This is a process to determine what jobs you can do and if needed provide training to get one of these jobs.
Our caller is in his 50's and had never done anything other than labor work. He had been going through vocational rehabilitation and was only finding jobs that paid $10 an hour. His normal job paid over $35 an hour. If $10 was the best he could do then he would be entitled to 2/3 of the difference of that every week times 40 hours a week. In other words, this guy appears to be owed around $667 a week.
This could be a big case so the insurance company wanted to do whatever they could to find him a job. And don't you know it, at the last minute they did find him a job at $35 an hour, working for . . . . . . . . . wait for it . . . .
The INSURANCE COMPANY.
That's right, this laborer is now working a desk job that was created specially for him. This is what we call a sham job offer. We may or may not represent him, but if we do you can bet that we will call the insurance company on the carpet for what this is, a fake job. I'll bet you a quarter that if he were to settle his case right now this "job" would go away.
So we'll argue to the Arbitrator that this isn't a real job and that there is no real labor market for him in what he used to make financially. I never guarantee a client anything other than service and effort, but I can't imagine the Arbitrators at the Illinois Workers' Compensation Commission are going to find against us on this one.
If your case is going to go to arbitration (that is how cases are decided), there are a lot of factors that are important to winning your case. Your honesty and credibility as a witness, a consistent story to your doctors, an actual on the job injury and statements of witnesses to name a few. But there is one factor that stands out above all others when the insurance company is saying that your injury is not work related.
That factor is that your treating doctor says your injuries are connected to an accident on the job or the repetitive nature of your job. If the insurance company has an IME doctor that says your injuries aren't work related and you have nothing then you are likely out of luck no matter how great your other evidence is.
And it shouldn't just be any old doctor, but the most relevant doctor to the type of injury you have. In other words, if you have a major back injury and your only statement that your injuries are work related come from your family practice doctor or a chiropractor and the insurance company has an opinion that is not in your favor from a credible orthopedic surgeon, you have almost no chance.
We know an outstanding Decatur workers' compensation lawyer that does a great job of instructing his clients the right questions to ask a doctor about this issue. Many in Chicago, Rockford and elsewhere do this well too. The bottom line for you is that you want an honest answer from the doctor and that comes with giving a detailed description of what happened and making sure the doctor understands the law in Illinois.
We don't expect our clients to take this job on themselves. But we do expect that when you see any doctor that you give an honest and consistent history of how you got hurt. If you fail to do this then you are potentially shooting yourself in the foot.
A very common complaint among Illinois workers is that they’re swamped with work, and there doesn’t seem to be enough hours in the day to get it all done.
But is the stress of the heavy workload enough to entitle you to workers’ compensation benefits to cover your physical or emotional injury caused by the workplace stress?
Not necessarily, unless there is something more that distinguishes your work stress from the stress most everyone experiences in trying to get a job done on time.
A woman doing clerical work for a hospital recently tried to bring such a claim for workers’ compensation benefits (note, this is a recently published case in a workers’ compensation law journal, not a claim we handled). She suffered from an increase in gastrointestinal issues and anxiety, that she believed was caused by her stress at work. There was simply too much work to do, and not enough time to get it done. Her claim for benefits was that the mental stress of her employment caused both a physical and a mental injury. Both these claims were denied.
To qualify for workers’ compensation benefits for a physical injury caused by workplace stress, you would have to be able to show that your situation was different than the stress that people experience generally. What kind of mental stress do your job duties put you under, that makes your situation a true workplace injury?
For the clerical worker there was no real distinction. Generally, people have deadlines to meet, and they feel pressure to meet them. But she didn’t claim any kind of unusual or unique deadlines, and she didn’t claim that she was disciplined for not getting her work done on time.
The clerical worker also tried to claim that her workplaces stress caused a mental injury in addition to her physical injury. But again, she could not make a case for her stress being out of the realm of the stress of the general public.
If you’re claiming that your job stress caused you a mental injury, then you would need to be able to point to some stressful situation in your workplace that was so much greater than the typical workday stress and tension that many workers experience. You should be able to show some severe, emotional event that happened primarily because of your job.
The classic example used to prove a case is a worker who had nightmares after seeing a co-worker get crushed by a machine. If something like that happens to you, you may very well have a claim.
We recently were asked by an injured worker, whether he had a workers’ compensation claim, even though he had a pre-existing condition.
He injured his back at work installing a windshield, and had been off work since then. The x-rays showed that he has two bulging discs. Months before the recent injury, he had been treated for back pain, which was diagnosed as strained muscles, and went back to work. How does this prior back injury affect his present claim for workers’ compensation benefits?
He should have a case for his recent back injury. The pre-existing back problems do not necessarily cut off his right to get benefits for a later work injury.
Illinois workers’ compensation allows you to receive benefits for a work injury, even if a prior injury or condition was a factor in your being hurt. If you can show that the work accident made the old condition worse, then the injury has enough of a connection to your job that workers’ compensation covers it.
Your work does not need to be the one and only cause of your work injury for you to have a case. A prior injury can contribute to your being hurt. Benefits are available for all types of workers, whether they are older, ill, weak, or have some other condition.
The question is; was the new work injury related to your job and not just the way your condition would have progressed if you weren’t doing what you do at work?
For this worker, the injury happened while performing his job duties. He wasn’t under the doctor’s care for the old injury, and had been back at work. The strained muscles from before shouldn’t hurt is case now. It was the current job accident that was the final cause of the bulging discs.
It’s important give a good and complete history to your doctor. Don’t be concerned that telling your doctor about your prior injuries or conditions will hurt your case. It can make it more challenging some times, but it does not mean an end to your case.
Being injured at work doesn’t necessarily mean that you’ll be able to get benefits under Illinois workers’ compensation laws. But there are some types of injuries that usually will get you benefits. Each injury type has one thing in common: the employee was exposed to something that he or she would not necessarily have been exposed to if not for the job.
Traumatic Physical Injuries: This is the most common type of injury. It’s what we commonly think of as an “accident.” When one specific occurrence happens while you’re performing your job duties, it would be considered a traumatic physical injury.
Being able to show that the accident that injured you was related to your job performance is key to getting benefits in this situation. For example, if a warehouse worker in Chicago was hit by an object falling on him, it is important to know where he was at the time, and what fell on him. Reporting the accident to your supervisor right away, and giving a detailed description to your doctor of what happened can help you to prove your case.
Repetitive Trauma: When it’s not one single event, but a course of events over time that causes your injury, then you may have a repetitive trauma injury. These injuries usually occur when certain physical movements are required to be repeated fairly regularly in order to perform your job.
Some jobs are more likely than others to lead to repetitive trauma injuries. Secretaries, for one, are at risk for carpel tunnel syndrome caused by consistent computer use. Repetitive trauma injuries can also be caused by jobs where you are doing regular movements with heavy tools, standing for prolonged periods of time, or repeatedly reaching or bending to do your job duties. Any time a part of the body is injured because of the unusual strain put in it from doing some movement with that body part over and over again, you are likely to be able to receive compensation for that injury from workers’ compensation.
Occupational Diseases: If your job exposes you to some element in the environment you wouldn’t otherwise be exposed to, and it caused a disease or condition, you could be compensated for this occupational disease. Some work environments have dust or fumes, for example, that are unique to that kind of work or the particular job site. Like the repetitive traumas, these injuries can develop over time from the repeated exposure.
Mental Injuries: Where a mental injury was caused by exposure on the job to either emotional stress or a physical injury, you may be entitled to benefits to compensate you. Whether the event that caused your mental injury was physical (such as a hit on the head) or emotional (such as witnessing a co-worker’s brutal accident), if it was an event that was unique to your work, you could be compensated under workers’ compensation. A physical injury doesn’t need to be an ongoing part of your situation in order to recover for a mental injury.
When you’re unable to do your regular job while you’re recovering from a work injury, you can receive temporary total disability (TTD) benefits for that period of time. The TTD benefits should continue, while you’re still not able to return to full work and your condition is still improving and hasn’t stabilized.
During the TTD period, your doctor may allow you to do some restricted work that won’t affect your injury. This work should also not affect your TTD benefits. Even though you are working, you’re not doing your usual job duties or activities.
Recently, a case in Illinois looked at what happens with TTD benefits, when a worker steps outside his restrictions, and perform tasks that use the affected body parts. In this situation, a worker injured his left hand and shoulder. He was restricted to jobs that only used the right side of his body, while his left side was healing. However he took a job where he used his left arm and hand, and ran into trouble.
The injuries to his left side increased, and his right hand started to have problems as well. To make matters worse, his TTD was cut off because he appeared to be working full duty.
In the end, though, his TTD was reinstated. The court said that just because he was in fact working beyond his restrictions, it was not his intention to do that, nor was he able to do it successfully. In fact, he had tried to work without using his left side, and injured his other side in the process. Also, he was able to show that his injuries had not stabilized, and he was still in a lot of pain and limited movement from the original accident.
What was key for this worker’s case was that he had been honest with his doctor, and told the doctor all along of his pain and problems he was experiencing. He was able to show the court medical records which detailed the complaints he had been making about his left side issues, during the whole time he was trying to work.
Because the medical records and physician’s opinions showed that his injury was continuing to affect him and affect his work, he could continue to receive TTD benefits. The fact that he seemed to be using part of his body that was restricted was not enough to cut off the benefit. His condition was not stabilized, just because he tried a job and couldn’t do it without further pain and injury.
Your medical records and the testimony of your doctors treating you can tell the real story of your injury. Here, other factors clouded the picture. But in the end, just because work restrictions weren’t actually followed wasn’t enough to overcome what the medical proof showed about the ongoing injury.
Most employees in Illinois are covered by workers’ compensation, meaning that their employers are required to have insurance that will pay employees benefits if they are injured while on the job.
There are some exceptions.
Independent contractors are not covered. However, employers may be too quick to label an employee an “independent contractor” in order to avoid a workers’ comp claim.
Postal workers, and other federal employees, are not covered under Illinois’ workers’ compensation system.
Firefighters in Chicago aren’t covered. In Illinois, firefighters are covered unless they work in a city of more than 200,000 people.
Volunteers aren’t covered. If you aren’t getting paid, you are not an employee. However, if you work part-time you are covered. And you are covered the minute you start working. Don’t let anyone (employer or insurer) tell you that you aren’t covered because you don’t work full time or because you were a new employee.
There are other situations where you may be told that you’re not eligible, but in fact you are. Some examples:
- Illegal workers. You are covered, even though the law doesn’t specifically say this. The idea is that if you don’t allow this group to get benefits then employers will have an incentive to hire undocumented workers.
- Cash employees. You are covered, although it will be difficult to determine payments for lost wages if your wages aren’t documented.
If you aren’t sure whether you are covered under Illinois’ workers’ compensation law, ask an attorney. Don’t rely on your employer or their insurance company. It’s better for them if you aren’t eligible. If you aren’t covered by workers’ compensation, it doesn’t mean that you’re out of luck. You may be able to sue for your injuries, an option that isn’t available to most employees.
Some employers host or organize social events for employees, such as holiday parties and summer picnics. If you are injured while attending one of these events, you probably aren’t covered under workers’ compensation law (meaning you can’t get benefits by filing a workers’ comp claim), although it depends on the situation.
The key consideration in determining whether your injury is work related and therefore covered is whether your attendance at the event was mandatory. If your employer required you to go to the party or picnic or other outing, you may be eligible for benefits, which include coverage of medical bills and payment for a portion or your lost wages if you have to take time off work because of the injury. If your employer simply offered the social event as an option, you may be out of luck, in terms of workers’ compensation.
There may be another way to get compensation for your injury, however. If you were hurt because of a dangerous condition on someone’s property – a bar, restaurant, hotel, etc. – then you may want to consider suing the property owner for negligence. This would be a personal injury lawsuit and not a workers’ compensation claim. If the event was hosted at your workplace, there may be a case against your employer as the property owner.
What happens when you’ve already settled your case for your work injury, but then you reinjure the same body part at work? We were asked this question from a worker who was injured eight years ago, received a settlement, and now has had a second injury. Is there a case for the new injury?
The simple answer is yes, you still have a case regardless of a prior settlement. However if you injure the same body part twice, the details of your two injuries can affect what you may get in the second settlement.
For example, a factory worker in Wheeling injures his left leg lifting boxes. He receives a settlement for the percentage of loss of the use of his leg. A few years later, he injures his left knee in a similar accident. He can get a second settlement for the knee injury, but a credit to the insurance company will be taken out of the settlement. The insurer will get a credit based on the amount the worker originally got.
So even if the second injury is to a different part of the leg, the fact that the worker already got a settlement for the loss to that leg is taken into account and deducted from the benefit for the second injury. Even though the second injury was to a different part of his leg, there is still a credit for the insurance company.
There would be a different result, though, if the first leg injury was much more severe, or the body part that was injured was a neck, back, or head. In cases like that where the settlement was for the loss of the person as a whole, then there is no deduction when determining the amount to cover the second injury.
Also, if the second injury was to a different body part than the first, then the insurance company would also not get any credit for the first settlement.
A settlement for an old injury does not prevent a new settlement for a similar injury, but there may be an adjustment made to the final tally.
Have I confused you? If so feel free to contact me and I’ll talk to you in confidence.
In Illinois, most employers are required by law to have workers’ compensation insurance. If they break the law, it’s a crime. There are fines, which are put into a fund to compensate workers who are injured in a job where there is no insurance. If a business owner doesn’t have any employees, they don’t need insurance. But even one part-time employee requires insurance.
So what do you do if your employer tells you they don’t have insurance?
First, make sure they’re telling you the truth. We’ve heard of employers telling an injured employee that they don’t have insurance in order to discourage the employee from filing a claim and seeking benefits. You can look up whether an employer has workers’ compensation insurance here, or contact the Illinois Workers’ Compensation Commission and ask. If they investigate, they won’t tell your employer who made the report. You should also know that there is no waiting period before a new employee is covered under their employer’s insurance. You are covered from day one.
Even if your employer ends up not having insurance, they are still on the hook for your medical bills and payment of a portion of your lost wages if you are unable to work because of your injury. The problem, however, is that it can be difficult to get this money from an employer, especially a small business, because the money simply isn’t there.
Another thing your employer might do is tell you that you aren’t covered because you’re an independent contractor. Again, don’t take their word for it. It’s true that they don’t need to insure independent contractors, but you might not be one. The Illinois Workers’ Compensation Commission estimates that 91% of Illinois employees are covered under the law, so it’s worth looking into.
If you truly are an independent contractor, and you get injured, you can probably file a lawsuit. This option is not available for employees – filing a workers’ comp claim is generally their only option. But an independent contractor generally can sue for damages caused by an employer’s negligence. It might be covered by the employer’s general insurance.
If you have a question about whether you’re an independent contractor, whether your employer is required to carry insurance, or anything else, please contact us.
Falling out of a chair can be embarrassing, but more importantly it can cause you to suffer an injury. When it happens at work you may be entitled to Illinois workers’ compensation benefits, depending on the circumstances.
In Illinois, whether or not your chair accident is considered employment-related may, though, depend more on what was under your chair than what was in it.
For the injury to be connected enough to your work to warrant workers’ compensation benefits, you have to ask yourself: was there a risk involved in this accident that the general public is not exposed to? To answer the question, look at the work environment, including the type of flooring the chair was on, the condition of the floor, and the style of the chair.
Your accident is not likely to be connected to your work if, for example, the chair was a fairly typical straight-backed type of chair. Similarly, if the chair was on wheels, but was sitting on carpeting or a stabilizing mat, then falling out of the chair is probably not tied to your work environment.
If, though, there is something extra about the set-up that causes more movement than a chair ordinarily would or should, then that could be an increased risk of your employment. This would include wheeled chairs that were sitting on hard or slippery surfaces like linoleum tile, or sitting on a sloped floor. This would also include chairs that had a particular style that promoted movement from side to side or front to back.
Looking at these factors will help determine whether your employment is connected enough to your fall to entitle you to workers’ compensation benefits. If there was some added element that created increased chair movement, then your fall from the chair could likely recover benefits for your injury.
Accidents that happen at work while performing your job duties will likely entitle you to workers’ compensation benefits for your injuries. But accidents that take place while on a break from work, may require a closer look.
During the course of a typical work day, there are times that workers need to attend to personal needs that are not necessarily prescribed by their job duties. These acts of “personal comfort” include using the bathroom, eating, and cooling off in the heat. Though these activities may not be work per se, they have been considered to be a necessary part of performing work duties, such that accidents that occur during these times can be considered to still be in the course of employment.
Workers using the restroom or eating lunch, are meeting personal demands which are in the interest of their employer to perform. As long as the worker is carrying out those activities in a reasonable manner and not in an unnecessarily dangerous manner, the employment chain will not necessarily be broken, just because the activity taking place does not present like work, in the classic sense.
Though the personal comfort activities are considered to be in the course of employment, they need also to arise out of the employment, so that they can be compensable work-related injuries. It is relevant to look at where the activity took place, what limitations existed, and how specific to the employment the risk was—as opposed to a risk that the general public would be exposed to. Where, for example, the company has a specific break room for employee breaks, or where there is one hallway or staircase that the employee can use to get to the required personal comfort location, it is more likely for an accident to be connected to employment in these locations.
A recent Illinois Workers’ Compensation case illustrates these distinctions in compensating break-time accidents. The case involved a woman who was very busy at work, and took a break to smoke a cigarette. The company had a designated smoking area on the floor below her usual work space. There was only one stairway which connected her office area to the smoking area, and the general public did not have access to these areas. The worker fell down the stairs while hurrying to the smoking area and was injured.
The act of smoking was considered to be a personal comfort act, which was connected to her employment. She was not doing anything unreasonable or dangerous in walking down the stairs to get to her break. Further, the company had control over this route, by designating one smoking area, with one stairway. Because the stairway was not open to the general public, the risk of falling on those stairs was greater for the employees.
For these reasons, the worker was entitled to workers’ compensation benefits for her injury. This case exemplifies the types of scenarios where workers are not specifically performing job duties, but nonetheless can still be on the job for the purpose of being entitled to benefits.
Allergies are on the rise, and latex allergies are among the more common types. Exposure to latex in the workplace, particularly with the use of latex gloves, can cause an allergic reaction ranging in severity from mild break-outs to life-threatening episodes.
Injuries that are the result of issues personal to the employee generally do not entitle him or her to workers’ compensation benefits, because they do not arise out of the employment. However an exception allows for coverage where the conditions in the workplace contain an element which exposes the employee to a significant increased risk which would not necessarily be present for the general public. Though not everyone will develop an allergy from being around latex products, if you develop such an allergy after being exposed to latex at work, Illinois workers’ compensation benefits should be available to cover your medical bills resulting from your allergy.
Conversely, the opposite result has been found in some cases involving food allergies. Though food allergies can be every bit as severe as latex allergies, Illinois has denied workers’ compensation benefits for injuries resulting from eating a food at work or a work function that contained the allergen. The risk involved in consuming otherwise safe food by someone with a food allergy or sensitivity, has been held to be unrelated to employment and not any more of a risk than the employee would be exposed to when eating outside of his employment. Latex, on the other hand, can be a risk specifically related to the employment environment.
Once the latex allergy is established, your employer has a duty to remove the exposure for you. Often there are alternatives to using latex for gloves and other products. If your employer will not remove the latex from your environment, you should be able to receive compensation for your time off work resulting from the allergy. Medical bills, regardless of the removal, should be available.
If you suspect that you are having a physical reaction to latex exposure, it is very important to get immediate medical attention. An allergist can help to diagnose the allergy, and give you a plan for staying safe in the future.
When your job requires travel, accidents could be more likely to happen, in ways that do not always seem like they are related to your duties. So if you are injured when you are not in the office, how can you tell if your injury was connected enough to your employment to entitle you workers’ compensation benefits in Illinois?
Generally, injuries that occur while driving to or from work do not trigger benefits. There are exceptions to this rule, however, depending on whether there is something else that would make the employee’s conduct expected and foreseeable by the employer, and whether it was reasonable under the circumstances.
Where your employer provides you with a car, truck, or other vehicle because there is some expected company benefit, then accidents while traveling are more likely to be compensated. Your employer is benefiting in some way from your using the company vehicle to drive to work or to job sites, and likewise is recognizing the corresponding risk associated with the travel.
But, many times when you are driving to or from work or job sites, you need to deviate from the route that would otherwise be the most direct, order to run an errand, or do something else that would be considered more personal than business. If you are injured when you have deviated, is the accident no longer “in the course of” your employment? If an accident occurred during a deviation that was for purely personal reasons, likely you could not recover benefits for any injury you sustained. The chain, thought, is not permanently broken once you go off-course.
In a recent case, the Illinois court decided that an employee in a company truck had returned to his course of his employment even after he made a personal stop on the way home from a job for his employer. The employee was allowed to drive the truck to and from work. One day on his way home from work, he stopped at his bank to withdraw money for his personal use. While driving from the bank to home, he was injured in an accident.
The court determined that, even though he was not back on the route he would ordinarily use on the way home from work, the employee was, nonetheless, back on track enough for workers’ compensation purposes. He had, in effect, “re-entered” the course of his employment when he left the bank and was on his way driving home—even if the route was less direct or not typical.
The relevant inquiry to see whether you are back to traveling in the course of your employment is whether the facts show that you were in fact on your way home or on your way to the job when the accident occurred. A deviation from that path will not necessarily cut you off from being entitled to workers’ compensation benefits for an accident that occurs after you are back on track.
It will probably happen to all of us at one time or another: that unexpected fall that seems to come out of nowhere. When such a fall happens at work and causes an injury, will you then be able to receive workers’ compensation benefits from your employer? The answer depends on the specific circumstances of your fall.
For an accident to be work-related, it should be closely related enough to your employment that there is a causal connection between the two. Determining whether an unexpected fall, with no apparent provocation, is related to your employment, is not always clear-cut. An accident such as a fall would generally be held to arise out of your employment if occurred in the performance of your job duties, or while doing something that is reasonably expected to perform your job. Also, an accident can be work-related where it occurred because of some risk related to your employment that the general public would not be exposed to.
In the case of the random, unexplained fall, this can be a bit more tricky to determine. Illinois courts have found a work injury where a worker fell on stairs for no apparent reason other than possibly misjudging where the bottom of the stairs was. In this case, the court said that the fact of how she fell did not prevent workers’ compensation benefits from being awarded. Of greater importance was the fact that she was on those stairs in the course of her job, and had items in her hands preventing her from being able to catch her fall—items which she would reasonably be expected to be carrying for work at that time.
In contrast, however, in a recent Illinois decision, an unexpected fall at work with similar facts was determined not to arise out of the worker’s employment. In this case, the main difference was that the items the worker had in her hand were not necessarily related to her job performance, and there was no evidence the items related to the fall at all by distracting her or preventing her from catching her balance. In addition, the fall occurred in a hallway used by the general public, and there were no physical conditions which contributed to the accident. In fact, the worker allegedly said that she just tripped over her own feet.
Two workers with accidents that may have seemed, on the surface, to be the same and likely to produce the same result, in fact yielded different results. The specifics of each situation have to be looked at closely to make the determination whether an accident would be covered under Illinois workers’ compensation benefits.
Like any posting on this blog, please don't make a final conclusion about whether or not you have a case just by reading what I said here. Call or e-mail us and we'll go over the unique facts of your claim for free.
When you have had a work injury in Lake County, it’s not necessarily the case that you’ll be better represented by a Lake County lawyer. The main courthouse for Lake County is located in Waukegan, and it serves as the hub for the county’s criminal and civil litigation. However, workers’ compensation is not subject to the same geographic divides.
If you have a divorce, traffic, or criminal case that will be heard in Waukegan, you may get an advantage by hiring an attorney that regularly practices out of that courthouse. The local Lake County lawyers that are appearing in those courtrooms regularly, may be familiar with the judges and be privy to other information that could be helpful to their clients. There may be local county rules and procedures that they would be familiar with as well.
But the Illinois Workers’ Compensation Commission is not organized in a county-specific way. The Waukegan courthouse has two arbitrators that will hear cases that are assigned to that location. The cases are assigned to a courthouse based on the proximity of the location of the accident or injury. For your workers’ compensation case, you are likely better served by choosing a lawyer based on expertise in the specifics of workers’ compensation, rather than based on geography—particularly where the case is unique or difficult.
A lawyer that practices in Chicago may have more experience with a variety of relevant Illinois workers’ compensation cases, and it is not necessary for the lawyer to have that much experience at the specific hearing site. Also, many Chicago lawyers are actually from Waukegan, Libertyville, Highland Park, and other suburbs where it is very feasible to go to both Chicago courts and to the Waukegan courthouse.
In the workers’ compensation area, the substantive legal experience can often help you better than the geographic familiarity. All that said, we know some great Waukegan work comp attorneys. If you want a recommendation or just wish to talk about your case, please call us at (312) 346-5578.
In order to recover Illinois Workers’ Compensation benefits for a work injury, the accident needs to have occurred in the course of your employment. But frequently, employees are injured at work while doing their job in a dangerous or negligent way. What then? Does the employee’s bad conduct take away the right to benefits?
Generally, you will still be entitled to benefits, even if you are acting negligently and against company policy, as long as what you are doing was related to performing your job. One of the main goals of workers’ compensation insurance is to remove the element of fault and contributory negligence from this arena, and simplify the process to receiving compensation for work injuries. So it would seem reasonable to expect that in most cases, you could still be covered even if you are responsible for making a bad choice.
Recently, a forklift operator was injured when he tampered with the seatbelt on the forklift. The spring loaded mechanism opened up and struck him in the eye. Fixing or altering the forklift parts was not part of his job duties, however riding on the forklift and using the seatbelt was. So even if the employee was negligent in his manipulation of the seatbelt, he was doing it not for his own personal benefit, but in the course of benefitting his employer. He is likely to be covered by workers’ compensation for his injury.
Illinois courts have supported this principle, holding that if the employee was where he was supposed to be and doing work that was part of his employment, then even committing a safety violation or other prohibited activity, would not make him ineligible for workers’ compensation benefits.
On the other hand, in a case where a woman was using the laundry press at work for her own personal clothes and not for any work uniforms or other job purpose, she was not acting in the scope of her employment. She should not be entitled to benefits for the burns she got while operating the press.
The distinction is whether it was a prohibited activity that is not part of work, or whether it was a prohibited manner of doing work that is for the benefit of your employer. If it is the second, then it should not matter how many times your employer tells you not to do something; you still would be covered if you were performing your job and the accident arose out of that job performance.
One exception to this principle, is that you cannot benefit from workers’ compensation if you committed the dangerous or wrong acts intentionally, knowing that what you were doing was likely to cause injury. Bad conduct that violates company policy is one thing, but acting without regard to likely consequences, or knowing you would likely cause injury is another.
If your claim has been denied because you violated a safety rule that lead to your injury, don’t give up. In many cases, safety violations that lead to injuries are still covered.
A basic rule of workers’ compensation is that work-related injuries are covered regardless of fault. So if you caused the accident, it usually doesn’t matter. In Illinois, this holds true even if you violated a safety rule, although there are extreme cases that create an exception.
Whether you are entitled to benefits often depends on what you were doing when you violated the rule. If you were still acting “within the scope of your employment,” you should be eligible for compensation. If, however, you were involved in horseplay, your claim will probably be denied. It comes down to whether you were performing your job duties when you were injured.
Example: If you fail to attach a safety harness while working on a scaffold and then fall as you’re walking along the scaffold carrying materials for the job, it should be covered. You were doing your job and you were in an area you were supposed to be, etc. However, if you climbed up onto the scaffold during your lunch break, failed to attach the safety harness and started goofing around with some co-workers, then you’re going to have a hard time getting benefits. Each case comes down to the specific facts.
Another example: There was a case where an employee was injured when he jumped onto a moving forklift to catch a ride to lunch. He violated the safety rule that employees were not allowed to ride double on the forklifts, and he was denied benefits. It wasn’t just the fact that he violated a safety rule, but the fact that he violated in a way that brought him outside the scope of his employment. He wasn’t working or doing anything for the benefit of his employer at the time. What he did (hitching a ride) was entirely for his own benefit.
Violating a safety rule can sometimes prevent you from getting workers’ compensation, but not in every case. If you are denied benefits because you broke the rules, get a second opinion, preferably from an experienced work injury attorney.
Where and when a heart attack occurs does not control whether or not the heart attack is work-related, for recovery under Illinois workers’ compensation law. Instead, it will have to be shown that some act or aspect of the employment was a contributing cause to bringing it on.
Workers’ compensation benefits in Illinois can be recovered where the condition has a causal connection to the employment. The employment does not need to be the sole cause, however. So even where an employee has had a history of heart disease or hypertension, a heart attack can still be considered work-related for recovering benefits.
In order to show that the employment was a causative factor in the heart attack, it is necessary to have some proof of a particular act or aspect of the employment which could bring it about. Just being at work at the time is not enough. Nor is it enough merely to show that you were at work that day and it happened shortly afterwards. The employer may try to show, for example, that the heart disease was so progressed that any kind of ordinary exertion would bring on the heart attack. You can combat that argument with evidence, often from expert testimony of a cardiologist, that the employment activity or conditions were not the kind that people are exposed to generally. But instead, that there was some extra contributing factor.
Illinois workers’ compensation law will not discriminate against an employee and deny benefits just because he or she is older or has had certain conditions such as a weak heart or hypertension. As long as the connection is made between the heart attack and the employment, the recovery should follow. And it should not matter whether the heart attack happened at during work, during a lunch break, or at home in the evening.
Only employees are entitled to receive workers’ compensation benefits from their employers under Illinois law if they are injured from their employment. Independent contractors are responsible for their own insurance. But how can you determine whether or not you are an independent contractor? Even if your boss classifies you as one, it does not necessarily make it so. The specific facts of your relationship are more important.
Many factors will be looked at to determine your proper status, but the major focus is on the right to control the performance of your job duties. If you are an employee, your workday is subject to the control and supervision of your employer. When you work, where you work, what you do at work are all decided by your employer. It is not only the end result of your work that matters, but the process you use to get to that end result.
On the other hand, if you are an independent contractor, your boss will be mostly interested in the results of your work, but not necessarily the manner and means used to accomplish that result. You are likely using your own equipment or tools, making your own schedule, and deciding for yourself the details for how you are carrying out your day-to-day responsibilities.
In one case, even a taxi driver who rented the taxi from the cab company, kept all his own fares, and purchased his own gas was determined to be an employee. What governed the decision was that he was told the minimum number of passengers he was to pick up each day, and which geographic area he should stay in so that he was reachable by dispatch radio. Here the company was in control over the methods, and therefore the driver was an employee.
So just because you are told you are an independent contractor, and therefore not entitled to receive workers’ compensation benefits, you don’t need to except that as the final answer. Examining the details of your employment will help you see if you can get what you may be entitled to.
In general, if you are hurt during a volunteer or recreational activity, if it wasn't mandatory then it's not covered under Illinois workers' compensation laws. We recently were contacted by a woman from Joliet who was injured while dancing at an office party. Sadly for her, attendance at the party wasn't mandatory nor was the dancing. While she might have a negligence lawsuit for how she got hurt, there is no workers' compensation option.
That said, there are exceptions to this rule.
Case in point, we are now representing a teacher who contacted us looking for an Aurora workers' compensation lawyer. She hurt her knee playing in a student-teacher volleyball game during an assembly. Participation wasn't mandatory and her job wasn't to play volleyball. But the injury took place during her normal work hours and it's reasonable and beneficial to the employer that the teacher took part of this activity.
The case was denied by the insurance company because it was not mandatory, but that misses the point. The rules on this mostly apply to out of work activities, not activities during working hours, especially when it benefits the employer. And why I guess we could always lose, I'll bet you a nickel that we don't.
Moral of the post is that don't let the insurance company give you legal advice or anyone else other than an attorney for that matter. New case law is created every day and most people have unique circumstances. And since it is free, it never hurts to get an honest opinion.
In order to get workers’ compensation, you not only have to be injured while on the job, but your injury must be related to your job. In other words, just because you were at work when the injury happened doesn’t mean you’re covered.
If you are just as likely to get the injury elsewhere, then you may be denied benefits. You need to prove that your job put you at an increased risk for the type of injury you suffered. Here are three examples:
Heart attack. If you can’t prove that your job made it more likely that you had a heart attack – that the job contributed to the heart attack – then you will probably be denied benefits. If you can show that your job is extremely strenuous and puts you at an increased risk, then benefits would be more likely.
Insect bite. Although usually harmless, some bites can be poisonous. If you get bit by a spider in your office job, it’s probably not a workers’ comp claim because you’re just as likely to get bit by a spider at home or anywhere else. However, if you are a park ranger, it’s arguable that your job put you at an increased risk -- compared to the general public – for insect bites, and therefore an injury would likely be covered.
Standing. If your injury was caused by the fact that you’re on your feet all day, the law is not on your side. The simple act of standing does not put you at an increased risk. However, if you were required to do excessive walking or stand on an uneven surface or wear harmful shoes, you may have a claim.
Every case is different, so don’t decide based on this list that you do or do not have a claim. Give us a call for a free consultation.
One of the most interesting cases I saw from a few years ago involved a worker who was hurt at their office while hanging pumpkin decorations for an office party at Halloween.
In general, if a party is not mandatory and you get hurt at the party, you do not get workers' compensation benefits. If it is mandatory then you do get benefits.
In this case, the worker was organizing the party for the office and we argued it was more like a birthday celebration than a company picnic or something like that. The case eventually settled.
For your purposes, you should probably just enjoy any party that you can and like anything else in life be careful. I certainly wouldn't miss a party because it wasn't covered by workers' compensation. If you do get hurt then let a lawyer who knows what they are talking about do a real analysis of your case to determine if you are entitled to benefits.
Some ways we determine mandatory versus not are:
Statement that you have to attend from the boss.
Loss of pay if you aren't there or other repercussions.
Being asked to show up because clients will be there.
Work issues being discussed (e.g. a presentation before a cocktail hour)
It's not always black and white and like our case described above, sometimes there are shades of gray. Moral of the story is to not give up on a case just because someone tells you that you don't have one.
Under Illinois workers' compensation law, you can bring a case in Illinois if you were hurt here, physically in Illinois when hired or your principle place of business is in Illinois. And if you can bring a case here you should do so as Illinois has the strongest workers' compensation laws in the country. In fact if you get hurt in a place like Indiana or Texas, you probably wouldn't even be able to find an attorney to help you.
Some companies like United Airlines are based out of Chicago. Their union has contracted with them so their employees can bring any work injury case in Illinois. A handful of other companies have done the same. This is a huge benefit for these employees. It also means that their first trip to Illinois someday might be for a workers' compensation hearing. Good for United.
Even if you don't live here, but bring the case in IL, you can still see whatever doctor you want in your area. Illinois doesn't limit the length of time a doctor can have you off work or the amount of benefits you can receive.
We will see insurance companies telling workers where the case has to be filed. Obviously those people have a motivation that is the opposite of yours. Often you have more than one place where you can bring the claim. You are best served by seeking the advice of someone who is independent to find out your options.
If you get hurt at a work picnic or holiday party, you’re probably not eligible for workers’ compensation. It’s generally seen as outside the boundaries of a compensable work injury.
The exception is if you were required to be at the event. If so, you may have a good argument for benefits – medical coverage, lost wages, etc. If you simply felt obligated to be there, that’s probably not enough.
As you may suspect, there are gray areas. If the purpose of the event was to entertain or speak with clients, you may be able to argue for workers’ compensation benefits.
Aside from workers’ compensation, there may be another potential claim in the case of a work party injury: if you were injured because of someone’s negligence. If your employer was negligent in maintaining their property and you were injured, you may have a personal injury lawsuit. The same thing is true if the party or event was at a restaurant or hotel. You may have a personal injury case against them, as well.
A reader asks:
My husband had to get a pre-employment physical before he was offered a job. During the physical he tripped on a weight that was on the floor. He broke his wrist in the fall and the company didn't make the job offer. Can he bring a workers' compensation claim?
The question is was he or wasn't he an employee at the time of the accident. I asked an employment law attorney I know his thoughts. Here is what he said:
Under the Americans With Disabilities Act, an Employer may require an applicant to submit to a physical examination only after that Employer has extended to the applicant a conditional offer of employment [that is, an offer that is conditional on the applicant passing the physical]. So, the EEOC Guidelines contemplate this issue where any offer of employment is made conditional on the outcome of the physical. As a labor and employment lawyer with no WC expertise, I'd say that unless and until such an applicant/conditional offeree does successfully complete the physical, he or she is not yet an "employee" under contract law or other employment laws. If by "physical testing" the original questioner meant a physical fitness test or physical agility test rather than a medical exam, the EEOC Guidelines state that fitness or agility tests are not "medical exams" [so long as they don't also include a physical exam]. [If you have the applicant show that he or she can climb a ladder or carry boxes, that's a fitness or agility test. But if you also take their blood pressure after that physical exertion, you've transformed the fitness and agility test into a physical exam, which the ADA says you cannot give to applicants before you have conditionally offered to hire them.] Since the ADA's ban on pre-offer physical exams does not apply to mere fitness or agility demonstrations, an Employer can require all applicants (that is, applicants who have not yet been given a conditional job offer) to demonstrate agility or physical fitness for any job that requires agility or physical fitness.
Under the Americans With Disabilities Act, an Employer may require an applicant to submit to a physical examination only after that Employer has extended to the applicant a conditional offer of employment [that is, an offer that is conditional on the applicant passing the physical].
So, the EEOC Guidelines contemplate this issue where any offer of employment is made conditional on the outcome of the physical. As a labor and employment lawyer with no WC expertise, I'd say that unless and until such an applicant/conditional offeree does successfully complete the physical, he or she is not yet an "employee" under contract law or other employment laws.
If by "physical testing" the original questioner meant a physical fitness test or physical agility test rather than a medical exam, the EEOC Guidelines state that fitness or agility tests are not "medical exams" [so long as they don't also include a physical exam]. [If you have the applicant show that he or she can climb a ladder or carry boxes, that's a fitness or agility test. But if you also take their blood pressure after that physical exertion, you've transformed the fitness and agility test into a physical exam, which the ADA says you cannot give to applicants before you have conditionally offered to hire them.]
Since the ADA's ban on pre-offer physical exams does not apply to mere fitness or agility demonstrations, an Employer can require all applicants (that is, applicants who have not yet been given a conditional job offer) to demonstrate agility or physical fitness for any job that requires agility or physical fitness.
He's not the best in plain English talk, but he does know what he is talking about. So unfortunately for this reader, there does not appear to be a work comp claim although they may have a negligence lawsuit.
A caller asked our help after blowing out his knee when he was using a treadmill on company property at lunch in the employee workout facility. He wanted to know if he had a valid Illinois workers' compensation claim.
We try to speak in plain English, but don't always succeed. Below is a memo on recreational type injuries that another lawyer we know wrote a year ago. It explains everything.
Generally, injuries sustained during voluntary recreational activities are not compensable. Potential liability still exists however per the personal comfort doctrine. Accidents occurring on break can still be deemed as in the course of employment pursuant to the personal comfort doctrine. However, we also note that the acts encompassed by this doctrine (eating, drinking, smoking, bathroom activity or seeking relief from harsh temperatures) do not typically involve employee exercise.
If the company (management) knows or acquiesces to the practice of lunchtime exercise, then a claimant may overcome the burden of proving the "in the course of" prong of the accident analysis. He would further be able to argue that the exercise conveyed a benefit to the employer (bettering the health of employees and arguably increasing their productivity and decreasing their absenteeism). Yet, the claimant would still need to prove the second prong, "arising out of". The injured worker would need to show that his employment somehow increased his risk of injury beyond that of the general public. The cause of the injury has to be related to the employment environment and not a hazard to which claimant would have been equally exposed apart from his employment.
If the petitioner used no equipment of the employer in the exercising, then he would have a more difficult time proving the "arising out of" aspect of his case.
The bottom line is that an employer is typically not responsible for injuries sustained by employees during off-the-clock activity that can be characterized as voluntary recreation. However, the personal comfort doctrine may allow an employee to bring within the scope of employment an activity not intrinsic to the job. In the Eagle Discount case the employee injured himself while playing Frisbee in the company parking lot. By allowing or acquiescing to lunchtime exercise by its employees, it is fair to say that the employer is opening itself up to that potential. Prohibition of exercise at work is a management option.
And, the Illinois Supreme Court has added:
"[I]f the employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, the resultant injury will not be deemed to have occurred within the course of the employment. [Citation.] The employer may, nevertheless, still be held liable for injuries resulting from an unreasonable and unnecessary risk if the employer has knowledge of or has acquiesced in the practice or custom." Eagle Discount Supermarket, 82 Ill.2d at 340, 45 Ill.Dec. 141, 412 N.E.2d 492.
Sometimes people call us and they can't understand why they don't have a case. This was evident the other day. A caller had fainted at work and received a concussion. She had no idea why she fell. It wasn't too hot in the office. She didn't actually slip on anything. She just passed out. Because it happened at work she wanted Illinois workers' compensation benefits. We unfortunately couldn't help her.
Just because you are at work when you are injured doesn't mean you have a case. You have to show that your work played a role in your injury. If you just faint or have a stroke or a heart attack, you still have to show that you job contributed to your problem.
Some fainting situations are work related. If you are up on a scaffold and faint and then get injured because of the fall, you have a case. The fact that you were elevated will prove that your job contributed to the ultimate injury, assuming you actually fall off the scaffold. If you are in a hot warehouse and pass out, we also can likely win your case. Again, the job plays a role in your accident because of the heat.
But if your job had nothing to do with you getting hurt other than you just happened to be there then there is nothing that can be done for you.
Is . . . . . . an actual injury.
Workers' compensation is for on the job injuries. I imagine most people that read this know that, but surprisingly (or maybe not) a lot of people don't.
I recently received a call from a trucker who was fired after his truck flipped over in a wreck. He luckily had no injuries, but wanted to pursue workers' compensation because he was fired. "I'm not getting paid any more, so that's my injury" he dead-panned to me.
Unfortunately for him, that is only possibly a labor law case. Had he even any injury at all it could have been a workers' compensation claim, but it's not.
Same holds true for the woman who called me two nights ago about being sexually harassed on the job.
If you aren't sure what type of case you might have, just ask. We'll try and point you in the right direction if we can't help you.
What happens when an injured worker dies from something other than the job injury? A reader asked that question the other day. It's a great one and while I know the answer, I turned to an attorney we refer some death cases to as I see him as an expert on Illinois workers' compensation law when a worker dies, mostly because he has handled so many cases like this before. Here is his answer:
When a claimant dies while her workers’ compensation claim is pending several different scenarios can play out depending on the cause of death. If the injured worker’s death is unrelated to her pending workers’ compensation claim, the injured worker’s estate will be entitled to any award of permanent impairment she may have been entitled to if she had not passed away. Since the concept of permanent impairment assumes future physical deterioration as a result of the work injury, however, the value of a settlement for permanent impairment may be significantly less than if the injured worker survived.
If the claimant dies of unrelated causes and is receiving weekly benefits as a result of a wage differential or permanent and total disability award at the Workers’ Compensation Commission, benefits will cease at the time of the claimant’s death.
Lastly, if the claimant dies of an injury or condition that was related to her job duties, however, her heirs may be entitled to death benefits if they can establish that they were dependent on the claimant as that term is defined by the Illinois Workers’ Compensation Act. While the issue of dependency can be very complicated, death benefits can be quite substantial. In fact, under certain narrow circumstances they could even represent weekly benefits to a dependent heir weekly for the remainder of that heir’s life.
Obviously, things can get very complicated during the pendency of a workers’ compensation claim if an injured worker passes away. Therefore, we believe it is imperative that the claimant’s heirs consult with either the claimant’s existing workers’ compensation attorney if one was retained or that the heirs obtain their own experienced workers’ compensation attorney to help them navigate this often difficult course through the workers’ compensation system relative to any rights that they have that may survive the deceased claimant.
Four days ago we blogged on independent contractors. Low and behold, a case was recently decided that summarizes what we were talking about. This is a summary by a well regarded defense attorney in Chicago.
In Skzubel v. Illinois Workers’ Compensation Commission Division, No. 01-09-0442WC, 2010 WL 1796802 (1st Dist. May 4, 2010), the court found the Commission’s decision that the petitioner was not an employee to be against the manifest weight of the evidence. The petitioner worked delivering Chicago Sun-Times newspapers for Four M every day for two years. Four M’s contract with the Sun-Times required it to deliver newspapers to the destinations by 6:30 a.m. The contract between Four M and its drivers stated that drivers were not employees. The delivery drivers would service a specific route and would use their own vehicle. Drivers could deviate from the route as long as the papers were delivered on time. Drivers were paid a set rate per paper delivered, which could be changed by Four M without notice to the driver. Four M would provide certain instructions on the manner in which papers were to be packed and to whom they were to be delivered and, in some instances, specific delivery instructions. Four M could also terminate the agreement at any time. The driver had to give seven days’ notice to cancel the agreement. The petitioner’s immigration status was pending when she began to work for Four M. Her husband signed the contract because she was not able to legally work. Checks were issued in her husband’s name. The checks were given to the petitioner. Four M admitted at trial that it knew the petitioner was making the deliveries.
The arbitrator found the petitioner was not an employee because of the fact that the checks were issued in her husband’s name. Accordingly, the arbitrator concluded that there was no contract of employment between Four M and the petitioner. The arbitrator also noted there was an issue as to whether the petitioner was an independent contractor but did not rule on the question. The arbitrator also found that because she failed to prove she was an employee, she failed to prove that the Sun-Times was a statutory employer. The Commission majority adopted the decision and further stated that she failed to prove accident without explaining the basis for that finding. The dissenting Commissioner found that the petitioner was an employee.
The appellate court reversed, finding the Commission’s determination on the employment issue was against the manifest weight of the evidence. The court agreed with the dissenting Commissioner that Four M knew the petitioner made the deliveries. Four M admitted that it knew she made the deliveries and that she was given the paychecks. The court found that Four M controlled the actions of drivers such as the petitioner by determining the work days and hours and such things as how the papers were to be delivered. The court also found it equally clear that the work performed by the petitioner was necessary to Four M’s operation as a newspaper distributor. The fact that Four M could terminate the agreement without notice was also a significant factor for the court, as was the fact that the work did not require any special skills. Facts such as that the contract labeled the relationship as principal and independent contractor, that the petitioner used her own vehicle, and that Four M did not withhold taxes and did not instruct her which route to take were not as significant.
The court vacated the holding that the Sun-Times was not a statutory employer because the decision was premised on a faulty predicate. The court also vacated the Commission’s finding that the petitioner failed to prove an accident and remanded the case to allow the Commission to make appropriate findings on the issue. The court noted that the conclusory statement in the Commission’s decision without setting forth any facts in support prevented the court from determining whether it was supported by the evidence.
The general rule is that you need to be an employee to be eligible for workers' compensation benefits. However, the definition of employee is complicated. Just because your employer tells you that you're an independent contractor, doesn't mean you can't get workers' compensation benefits.
1. Employee vs. independent contractor
The difference isn't always clear. There are many factors to consider, including whether you have taxes taken out of your pay check, whether you can come and go as you please or if you have a schedule, whether you have a uniform, whether you have tools or other equipment given to you, and how much instruction your employer gives you in performing your job. Basically, the more control your employer has over you, the more likely you are to be considered an employee.
2. Your employer doesn't get to decide
It's not up to your employer to decide whether you are an independent contractor for the purposes of workers' compensation. They may tell you you're ineligible, but just because a piece of paper labels you as an independent contractor doesn't mean it's the case. If there is a dispute, the Illinois Workers' Compensation Commission will decide based on the factors listed above.
3. How an attorney can help
The law in this area is designed to prevent employers from avoiding the workers' compensation insurance requirement. However, they may try to avoid it anyway. If you believe you are treated as an employee, an attorney can help you prove it.