Illinois workers' compensation basics, part 1

We only represent injured workers.  That said, we think there is a great value in looking at cases from the perspective of an insurance company or defense firm.  It’s a great way to know how they think as well prepare to deal with them.  In addition, they often have great overviews on case law.  Here is something from a defense firm that is an overview of the Illinois workers’ compensation system.  It’s very wordy and overly legal and nothing like the plain English that I try to write in. But if you can look past all of that it’s really informative.

 

I.  Jurisdiction

 

Every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside the state of Illinois where the contract of hire is made within the State of Illinois, persons whose employment results in fatal or non-fatal injures within the State of Illinois where the contract is made outside the State of Illinois, and persons whose employment is principally localized within the State of Illinois, regardless of the place of the accident or the place where the contract of hire was made, and including aliens, and minors who, for the purpose of this Act are considered the same and have the same power to contract, receive payments and give quittances therefore, as adult employees.  820 ILCS 305/1.2.

 

II.  Statute of Limitations

 

In any case, other than one where the injury was caused by exposure to radiological materials or equipment or asbestos unless the application for compensation is filed with the Commission within 3 years after the date of the accident, where no compensation has been paid, or within 2 years after the date of the last payment of compensation, where any has been paid, whichever shall be later, the right to file such application will be barred.  820 ILCS 305/6(d).

 

 

III.  The Employer/Employee Relationship

 

An employer-employee relationship is a prerequisite for an award of compensation benefits under the Act.  Roberson v. Industrial Commission, 225 Ill. 2d 159 (2007).

 

A.        Factors to consider:  whether the employer controls the manner in which the persons performs the work; whether the employer dictates the person’s schedule, the manner of pay, withholding of income taxes and social security, whether the relationship can be terminated by either party, who provides tools, equipment, and materials, and whether a written contract exists outlining the relationship.  Also considered is whether the work that is asked to be performed falls within the scope and general business of the potential employer.  No single factor determines whether a person is an employee or independent contractor and the significance of these factors will change depending on the work involved.

 

We are going to post this in three parts since it’s rather large.  Check back for part two in a couple of days.

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.

09/16/13

Illinois work comp time limits, so many considerations

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.

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.

08/07/13

Wages For Professional Athletes

We have helped injured pro athletes in just about every sport.  Many of these athletes played for out of state teams, but got injured while in Illinois.  They are treated like any other worker when it comes to workers’ compensation laws although their contracts typically entitle them to a higher wage than most if they are injured during the season.

But if an athlete is injured, has their contract end and still is not cleared to return to their former job, they can get TTD benefits just like anyone else.  The catch is that if you were making $100,000 a week before you got injured, you’d go on TTD when your contract is out.  So if Brian Ulracher blows out his back on Sunday, then he will get $1,261.41 a week when his contract ends.  Over one year that is $60,000+, tax free.  To Urlacher it probably wouldn’t mean much, but to a younger player who never made “that” much it could be a life saver.

Recently I’ve been contacted by two athletes who were injured 8-10 years ago.  Neither of them filed a claim and they wanted to know if it was too late and if it wasn’t, what it was worth.  I can tell you unfortunately it was too late for both of them as neither had medical bills related to the injury paid in the last two years (so the time limit to file was blown), but if they did have a case it would be based on what they were making when they got hurt, not when they filed.

A lawyer friend of mine was contacted by a WNBA player who only makes around $40,000 for the season that runs 15 weeks from June until September.  The insurance company was arguing that the average weekly wage is around $800 because that is what she makes for an entire year.  It works in the same way for teachers.  I disagree and think the average weekly wage is closer to $2,700.00 because it’s a seasonal job (wages divided by weeks worked).  Unlike someone in the NFL or NBA, the difference for this woman or a soccer player or other lesser paying sport is huge.  If the wage is what I think it should be, her weekly benefits are much great and her case is worth much more, especially if it’s a career ending injury.

Overall, athletes are no different than garbage men, secretaries, salesmen, flight attendants or anyone else that we proudly help.  The law is all the same, you just need someone in your corner to make sure that the law is followed.

We are workers' compensation attorneys that help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.

Illinois workers' compensation statute of limitations

A common question among workers who have job-related injuries is how much time they have to bring their claim under Illinois workers’ compensation law. It’s a very important question, because if you miss the time period for filing, you could lose your right to bring your case at all.

There are actually two important time periods to consider. The first, is the period to give notice to your employer that you were injured and that the injury arose out of your employment. You should notify your employer as soon as possible, but not longer than 45 days after the date you became injured and knew it was work-related. 

 

The second period is the statute of limitations period to file your claim with the Illinois Workers’ Compensation Commission. You have the longer of: two years from the last payment of compensation from your job, or three years from the date of your injury. 

 

With regard to the determination of the three-year limitations period that runs from the injury date (as well as the 45 day notice period), sometimes it’s a bit more complicated to determine the exact date of the injury. This is especially so where the injury is not a one-time accident, but rather a repetitive trauma. Generally, in this situation, the date of injury would be the point in time that a reasonable person would become aware of the causal relationship between the fact of the injury and the employment. You have to use great care with a repetitive trauma injury, that you discern the correct date, and do not let your notice or filing time lapse. Even if you continue working with your injury, the time will continue to run out. There is no relevance to the last day you were able to work, only the day that the injury and its connection to your job manifested itself.

 

When calculating the two-year limitations period that runs from the last payment of compensation, there can be pitfalls there too. What constitutes “compensation?” This could include payments such as workers’ compensation benefits, employer group insurance benefits, and wages that are not merely salary, but are related to the injury or disability. You should be wary of statements made by your employer or the insurance company about the nature of any payments, and the implications for filing your claim on time. 

 

Whether it relates to payments you received, or the date you were injured, checking out the specific facts of your situation with a good workers’ compensation attorney will help you to avoid getting locked out from bringing your claim. 

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.

 

Illinois workers' compensation statute of limitations: The unknown exception

If you want to bring an Illinois workers' compensation claim you must do it within the later of three years from the accident date or two years from the last payment of compensation related to the claim.  Three years from the accident date is pretty clear except when you have a repetitive trauma injury.  The last payment of compensation can be trickier.

The exception to this rule that not everyone knows about is that last payment of benefits can also include health insurance so long as it is through the employer where you got hurt.  So if your employer has Blue Cross and you get insurance through that, if they have made payments in the last two years toward your work injury then it is likely not too late to file a case.

This also holds true if the workers comp insurance company has paid medical bills or TTD benefits within the last two years.

Of course you can avoid any statute of limitations defense by formally filing an application for adjustment of claim which is the paperwork filed at the Illinois Workers' Compensation Commission to formally notify your employer that you are bringing a case.   This is typically the first thing an attorney does for his clients.  You don't want to lose the ability to pursue a case because of a technicality.

 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.

 

Illinois statute of limitations for workers' compensation

A lot of readers ask how long they have to bring a case.  Some have only been hurt a few days ago, some are going on a few years.

The statute of limitations to bring an Illinois workers' compensation claim is the longer of three years from the accident date or two years from the last payment of compensation. 

Three years from the accident date is usually straight forward unless you have a repetitive trauma injury like a back problem from a lot of lifting over time.

Two years from the last payment of compensation includes not only workers' compensation benefits like TTD or payment of medical benefits, but also payments for medical bills related to the injury through group insurance (if obtained from your employer) or disability policy benefits (again it must be through your employer).  We have seen cases where a statute of limitation had passed, but because an insurance company paid a bill all of the sudden the case was alive again.  This is very rare and as far as we know, workers comp is the only area of Illinois law where you can miss the time limits for filing a case and then possibly get it back.

There is also a law that says you must give your employer notice of an injury within 45 days of when you knew or reasonably should have known that it might be related to a work accident.   Failure to do so can cause your case to be dismissed. 

The reality is that if you are hurt on the job you don't want to lose your right to benefits over a technicality.  By hiring an attorney this should never happen.

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.

Illinois work injuries: Am I entitled to a settlement?

We get asked this question a lot by people who have an Illinois workers' compensation claim.  The quick answer is that almost every case entitles you to some sort of settlement.  Even in the most minor of injuries an insurance company will usually offer some dollar amount to make a case go away.

We don't take "minor case" such as back strains with very little treatment or finger contusions.  But even in those cases an insurance company will offer you something.

For the cases we do take, as long as the accident is related to the job activities we always are able to get money for our clients and more importantly we protect them.  By that we mean that we never resolve a case until it's the right time, we make sure that all bills have been paid and we consider how this injury will affect them in the future.

Some people call us and say that the insurance company told them that their file was closed or that there won't be an offer. As long as you get to us before the statute of limitations expires, we can "re-open" your case and obtain appropriate compensation or other benefits for you.

We are workers' compensation attorneys that help people with Illinois work injuries anywhere in IL via our statewide network of attorneys.  Contact us and we will answer your questions or find the right lawyer for your situation.

Just in the nick of time

Insurance companies typically make money because most people are too nice or too scared to find out their rights.

Take Jim (name changed of course) who called us today looking to find out if we could help a two year old medical bill get paid.  It turns out that on April 28, 2006 Jim blew out his knee at work and had ACL surgery.  The insurance company paid him for his time off work and paid for all of his bills except this one that had gone to collection.  When Jim called to ask them to pay the bill no one returned his call.

Jim was just going to pay the bill (almost $1,000) out of his own pocket, but as you know, times are tough.  Fortunately he called us and even more fortunate is the fact that he didn't wait much longer because come April 29th his case would have been barred forever.  Now not only will the bill get paid, but Jim is looking at around $35,000.00 for his injury.

Now I can't say for sure, but a pretty educated guess is that the insurance company new that if they could just delay Jim for a few weeks that they would be off the hook and Jim would be screwed.

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.

Your case can't be closed by the insurance company

We are representing a nice laborer who hurt his knee on the job, had surgery for a torn meniscus and for the most part has made a good recovery.  He's a the type of worker every company should want; doesn't make waves, works hard, shows up every day, etc.

His daughter called the insurance company and asked for a settlement offer.  Her dad would have taken whatever they presented no matter how low the offer was.  Instead the adjuster said something like, "Sorry, your case was closed and can't be re-opened.  There will be no offer."

WRONG!!!

An insurance company can't just close a case.   Now your case might be barred because of a statute of limitations problem, but some adjuster can't just one day decide to tell you that the case is over.  As they said in Animal House, "It's not over until we say it is!"

End of the story is that the case has been filed and you can bet our client who would have taken whatever was offered will be getting full value for his claim.

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.