Workers Compensation

I’ve never made a worker’s compensation case before. What is worker’s compensation all about?

People usually think of a work injury in the same way they think of car accident cases. However, workers compensation cases have different legal rules and are based on different legal purposes. In auto accidents and other negligence cases, the claimant is entitled to receive compensation for the pain and suffering a person goes through as a result of his injuries. This is because, in our society, a person has to pay damages to another when they are guilty of some wrongdoing; for example, if they disobey the traffic laws, have conditions around their property which shows carelessness, etc. The central idea of compensation is that the person who is asked to pay damages, has done something wrong (negligence).

In workers compensation, however, the employer is obligated to pay damages even if the employer did nothing wrong. This is a very substantial difference between workers compensation and negligence law. Thus, under traditional legal principles, a person injured on the job without negligence of the employer would have no legal right or claims for compensation whatsoever.

Because the employer can be held responsible even though it did nothing careless or negligent, you cannot recover damages for the pain and suffering you experienced while going through your injury and recovery. Workers compensation law only allows you three basic benefits: (1) payment of your medical bills, (2) temporary disability within certain formulas while a person is off work, and (3) compensation for permanent industrial disability caused by the accident (for example, a job change into light duty work, or having medical restriction to avoid certain movements or activities). In the case of Villanueva v. O’Gara, 218 Ill.Dec. 105 (1996) the Appellate Court explained Illinois law this way:

“The Illinois Workers’ Compensation Act restricts an injured employee’s recovery to only those damages listed in the Workers Compensation Act. Hence, recovery for such items as pain and suffering are barred”.

Next, in workers compensations cases, lawyers do not negotiate, and judges do not make awards, in “dollars and cents”; cases are resolved in percentages of disability of the injured body part, for example, 20% disability of the leg. Once those percentages of disability are determined, certain formulas that utilize the employee’s average weekly wage in the 52 weeks prior to the accident date come into play, to convert that percentage of disability into dollar amounts.

Finally, it is not accurate to compare a person’s workers’ compensation settlement with what a person receives for similar injuries in a negligence case because, in a workers’ compensation case, payment for medical bills, lost wage and permanent disability are made piecemeal, where they are made all together in a single payment in negligence (i.e., auto) cases.

Are there any time limits involved in a workers compensation case that I need to know about?

Yes. The first time limit has to do with reporting the injury to your employer. The law requires that after an accident, the injured worker has to report the approximate date and place of the occurrence to a supervisory person with the employer, within 45 days of the occurrence. This is a mandatory requirement. The notice can be given orally or in writing.

I always suggest that you make sure to do a written report, and get a copy for yourself so that the employer cannot deny receiving notice. If no notice whatsoever is given within 45 days, your case can be denied.

The second time limit is known as a “statute of limitation”. The “statute of limitation” requires that you file an Application for Adjustment of Claim with the Worker’s Compensation Commission within three (3) years of your accident. This is easy to calculate when the accident takes place on a specific date. However, some work injuries develop over a long period of time, and calculating the statute of limitations period in these circumstances is much more complex, and you should have legal advice to protect your rights.

Please note that the fact that you may be receiving benefits from your employer, or their insurer, does not mean that your claim has been filed. In order to comply with the statute of limitations, you need to file official paperwork with the Workers Compensation Commission in Chicago. If a case is not filed before he statute of limitations expires your case can be dismissed and barred forever.

How much does it cost for me to hire a workers compensation attorney?

Attorneys fees in workers compensation cases are set by law. The fee is 20% of the gross amount recovered, plus we reimburse ourselves for our out-of-pocket expenses such as photocopying charges to get your medical records, and costs of litigation. If payment of weekly disability benefits or medical expenses is denied or delayed, and we obtain payment, the law allows a fee of 20% of the disability or medical benefits recovered through our efforts.

I got hurt and made a claim a while ago, why is workers compensation taking so long to pay me benefits?

Your employer needs to turn the matter over to its workers compensation insurance company, which is processing hundreds of other claims besides yours. The insurance company needs to investigate your claim to see if it is legitimate i.e. – interview witness and review your medical records to make sure that:

  • You told the doctor you had an accident at work, plus how and when it happened.
  • The injuries are “caused by” the work accident (sometimes the doctors will write their expert opinion in the medical records, on whether the injuries are caused by the accident).

It is extremely important that you truthfully explain the details of the work accident to your healthcare provider because insurance companies and judges rely on this information in making decisions about the case.

Can I be fired for making a workers compensation claim?

Just because you have a workers compensation case, this does not guarantee your job. You can be fired or laid off, even if you have a pending workers compensation case. While it is unlawful “…for any employer, insurance company … to discharge, or threaten to discharge, or refuse to rehire or recall … an employee because of the exercise of his or her rights or remedies granted by this Act,” the legal issue depends on why the employee is fired. For example, if the employee is fired for punishment or retaliation for making a worker’s compensation claim, this might be illegal. However, employers have to run their business. So, if an employee is off work for long periods of time, or has medical restrictions where they can’t fully do their job because a work injury, the employer has the right to fire them and get someone else in to do the job. In this situation, the employee is not being laid off as punishment for making a workers compensation claim, but to enable the employer to run their business effectively.

I got hurt because of someone else’s negligence. Can I sue them?

Generally, when a person has a work injury, there is only one legal remedy: a workers compensation claim against his employer. Workers compensation claims are administrative proceedings before a state agency (The Illinois Workers Compensation Commission). They are not lawsuits, and they are not filed in court. An injured employee cannot sue his employer for negligence.

However, if the injury was caused by the negligence of a third party a person may have two legal claims as a result of the one occurrence. Let me give you an example: Someone blows a stop sign in an intersection and crashes into a Fed Ex driver, who is injured. The Fed Ex driver would have a workers compensation case against his employer and a “third party” claim against the driver who blew the stop sign.

If you recover money from the third party claim, workers compensation insurance is entitled to get much of its money back, that it paid for workers compensation benefits. This is called “subrogation”.

Because I am not working as a result of my injuries, I have lost my health insurance coverage for me and my family. Does workers compensation provide any benefits for my lost health insurance coverage?

No, there is nothing in the Worker’s Compensation Act that provides benefits for lost health insurance or other fringe benefits. Check with your employer to see if you can continue coverage through some corporate policy or perhaps through COBRA. Maybe there is an opportunity to obtain health insurance through the Affordable Care Act (Obamacare), state public assistance or other government program.

Do I have to see the company doctors or can I see my own doctors?

You have the right to be seen by doctors of your own choosing with a very important limitation. You can see two doctors of your own choosing and the referrals from those doctors. For example, if you see your family doctor and he/she refers you to a specialist you are still considered to be on your first choice of a doctor. You can start another chain of referrals with a second doctor and still be all right. If you see a third doctor, your employer will not be required to pay the bills.

However, just because you are within your claim of doctors, this does not guarantee that your treatment will be approved and paid by workers compensation. Here’s why: all medical treatment must also be ‘reasonable and necessary”. So, if you are on doctor number five, all originating with your first choice, the defense could argue that even though you are within the chain, doctor number five’s treatment is not “reasonable and necessary”. This may result in a denial of treatment.

The insurance company has been sending a nurse to all my doctor’s appointments. Are they allowed to do that?

They do not have the absolute right to have a “nurse case manager” go to all your doctor’s appointments. The involvement of a nurse depends on whether we give permission for the nurse to be involved. As you can imagine, your insurance claims adjuster probably handles a couple of hundred cases. If they had to contact the doctor after each visit to get your updated medical records, the claims adjuster would never be able to get anything done. So, if the nurse goes to the doctor’s visit, he or she can get information back to the claims adjuster immediately, which helps to speed up your medical treatment and payment of benefits. Therefore, I generally give my approval, subject to the following conditions which I require for your protection.

  • To ensure your privacy, the nurse is not allowed to be in the room when the doctor is examining you.
  • To prevent any improper pressures or suggestions from being made about your medical care or work capabilities, I prohibit any conversations between the nurse and your doctors without you also participating in the discussion. If you feel the nurse case manager is attempting to “twist the arm” of your healthcare providers by encouraging, suggesting, recommending, or offering any alternatives to the healthcare provider’s plans for treatment, return to work orders, or anything else – contact me immediately!!
  • I direct the nurse to send me copies of all nursing reports submitted to the insurance company, which I will in turn send to you to ensure accuracy of the report.
  • I require the nurse to certify that she will comply with the American Nurses Association Code of Ethics.

I got a letter saying I have to see an insurance company doctor. Do I have to go?

Under the law, the workers compensation insurance company has the right to have you evaluated periodically throughout the course of your case. The insurance company is not having you treat with its doctor. This is simply a consultation for limited purposes; for example, to obtain an opinion on whether your claimed injury is related to the work accident; whether you need testing, therapy or surgery; to decide on work capabilities/restrictions; and to address any other questions that the insurance company may have about your case. This is often referred to as an independent medical examination “IME”. However, sometimes the insurance company doctor is not very “independent; but will interpret matters and advocate with a view favorable to the insurance company. Since the doctor is giving an “opinion”, rather than stating something as fact, there is little that can be done about it.

Regardless of what your treating doctor says or recommends, workers compensation will do what its “IME” doctor says. If there is a disagreement with your doctor, and a denial of treatment, we may have to bring the matter to a judge to resolve the dispute. This can be very time consuming, expensive and difficult. If this situation arises in your case, we will have to discuss the options.

Workers Compensation has stopped paying my weekly TTD disability checks. What do I do now?

The remedy for the failure to pay TTD is to file an emergency petition with the arbitrator (judge) who is assigned to your case. These petitions are emergency in name only. The petition must be served on the other side 15 days before the status call the following month. At the status call the arbitrator will set a date (usually within two weeks) for a hearing. The arbitrator does not rule at the hearing. Each side writes a proposed opinion for the arbitrator’s signature, which must be submitted within 14 days of the hearing. This assumes that we can gather the necessary medical records and disability certificates in time for the hearing and that neither side needs to take a deposition of a medical provider.

I can’t go back to my old job because of my injuries, what happens now?

If you are not capable of returning to their former occupation, workers compensation law requires the employer to provide “vocational rehabilitation” services to you. The vocational rehabilitation process is designed to assist you in finding work in a different career which would maximize your earnings. Often times, the employer will assign a vocational rehabilitation counselor to assist you with these efforts. The vocational rehabilitation counselor is licensed by the state of Illinois. The counselor helps with locating job opportunities, resume writing, interview skill development, and other job seeking skills. But the main responsibility for finding work in the vocational rehabilitation process is not the vocational rehabilitation counselor’s — it is yours. You will be required to search for jobs on your own and to keep a written record of every job contact you make on what are known as “job search logs”. The counselor will require you to meet with him/her on a regular basis (maybe once a month) when you will have to turn in to him/her a mandatory number of job searches at each meeting. You will have to aggressively pursue every opportunity for work. You will be entitled to “maintenance” payments while you go through the vocational rehabilitation process. Such “maintenance” is a continuation of your temporary total disability (TTD) benefits, under a different name. The insurance company and vocational rehabilitation counselor will be carefully watching your efforts to make sure you do everything that is asked of you; if you do not, you are at risk of having your benefits cut off. Trying to have them reinstated is extremely time consuming, may require a trial, and the outcome is uncertain. Therefore, the best approach is to be fully cooperative and do what you are asked to do.

How much is my case worth, and how do you calculate it?

It is not possible to value a case until you are finished with your medical treatment and discharged from doctor’s care. Determining the value of a case is like putting the pieces of a puzzle together. There are many factors to consider, including your age and the severity of your injury, whether you had surgery, whether you have work restrictions and other evidence of disability, or had to take a lower paying job. However, there are some general methods of valuing workers compensation cases, as follows:

The first and most common method of resolving a workers’ compensation case is by compensating the employee for “permanent partial disability”. The second basis is for “wage differential”. The third basis for compensation is for “permanent total disability.

In compensating an individual for “permanent partial disability (PPD)”, the Workers’ Compensation Commission seeks to determine the extent of the person’s occupational disability. This contemplates the extent to which an individual is impaired in his ability to do a job or occupation; not how he is affected in his social, recreational, or personal activities of daily living. Once a percentage of disability is determined, certain formulas come into play to translate that percentage of disability into a monetary amount. The amount of a permanent partial disability award would vary, depending upon the injured body part at issue, the individual’s percentage of disability, as well as the applicable average weekly wage and PPD rate.

The “wage differential” method for resolution of the workers’ compensation claim is most often applicable where the injured employee had a high hourly rate of pay at the time of the injury, and he or she is required to change occupations as a result of the injuries into a much lower paying job. In general, wage differentials provide benefits equal to two-thirds of the difference between what you could be earning in your former job, compared to what you are earning, or are able to earn, in a suitable post-accident occupation. There were changes to the law in 2006 and again in 2011, so please ask me how these changes may affect your case.

With regard to permanently totally disabled people, there are two subsets of circumstances to consider. The first is where an individual is obviously incapable of performing any substantial work activity in a marketplace. The second circumstance is where an individual has severe injuries which do not obviously disable them from working; in that event, if the employee cannot find regular, continuous and stable employment in the marketplace, the burden of proof shifts to the employer to show that there is such regular, stable and continuous employment in the marketplace for that employee. If the employer is not able to do so, then the employee may be considered to be in the “odd-lot” category of permanently totally disabled persons. If a person is found to be permanently totally disabled, he would receive weekly benefits at the temporary total disability rate for the remainder of the disability.

I want to settle my workers compensation claim. What’s taking so long?

The Worker’s Compensation Commission handles worker’s compensation cases. This is an administrative agency of the State of Illinois. It is not a court. There are no jury trials in workers compensation cases. Trials are conducted before an “administrative law judge”. Each arbitrator has a couple thousand cases on his or her docket at any given time. This is because approximately sixty thousand (60,000) new cases are filed each year, according to recent statistics. (See annual report at www.iwcc.il.gov).

Because of this tremendous workload, it is very difficult to get things done quickly at the Workers Compensation Commission. Each new case is automatically continued every two months for three (3) years after the date of its filing, which is usually necessary for a claimant to receive medical treatment and rehabilitation for his/her injuries. When a case is ready (both medically and legally), it is possible to ask that the case be advanced for hearing. This is why the average time from when a workers’ compensation case is originally filed until the time of a trial disposition, is approximately 3 years; settlements average 1.8 years. Many complex or disputed cases take longer. And, unlike the courts’ where judges are available every day. “Emergency” hearings are only available monthly, and may take years to be decided, including appeals.

Cases arising from injuries received after September 1, 2011.

If you were injured at work after September 1st 2011, there are substantial changes to the Worker’s Compensation Act (the Act) that affect the value of your case. One of these changes allows evidence at trial of the American Medical Association “Guides to the Evaluation of Permanent Impairment” by the arbitrators (judges) when awarding permanency. The use of these ratings has substantially reduced the value of orthopedic injuries in workers compensation cases.

If I make a workers compensation claim, am I “suing” my employer?

No, you are not. Workers compensation claims are not lawsuits. Workers compensation cases are not filed in the Circuit Court. Workers compensation cases are administrative law matters which are filed at the Illinois Workers Compensation Commission, an agency of the State of Illinois. There are no jury trails in workers compensation cases. Trials are held before a single judge, called an “arbitrator”. After a trial before the “arbitrator”, the losing party can take an appeal to a panel of three “commissioners”. After that, appeals can move in to the circuit court, appellate court and possibly the Illinois Supreme Court.

Attorney Douglas Rallo fights for the rights of every client he serves. He is known for his compassion, broad experience and an unwavering commitment to seek fair settlements.

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