Elements of a Workers’ Compensation Case

Workers’ Compensation is Not a Lawsuit

When you are injured while working (it does not necessarily have to occur at your place of work), you generally have only one remedy: a worker’ compensation claim against your employer. You do not file a lawsuit (it’s called a “claim” instead, and are not entitled to many of the commonly referred to damages, such as pain & suffering or lost wages, and are limited in what compensation is available.

All Workers’ Compensation Cases Begin with the Filing of an Application for Adjustment of Claim

Unlike a lawsuit under a negligence theory (like an auto crash), there are no filing fees. Then again, nearly everything is completely different from negligence cases. The Application generally states what happened, what type of injury was sustained, and when. It is filed with the Illinois Workers’ Compensation Commission (IWCC) and must be sent to the injured worker’s employer, who will forward it to their workers’ compensation insurer.

There Are Time Limits

The employee must report the injury to his or her employer within 45 days of the injury. Failure to do so is a defense to the workers’ compensation claim. Even if you do report within the 45 days, it is often difficult to connect the injury to the work activity if a long period of time passes between injury and reporting and/or medical treatment. Further, the Application MUST be filed within 3 years of the date of injury OR within 2 years after the last benefits (TTD or Medical) were paid—but not longer than 3 years in any case.

It Is Almost Completely a No-Fault System

Most work injuries are automatically covered if your injury "arises out of" and "in the course of" your employment. Essentially, if you are doing what your job description calls for, and you are at a higher risk for injury than the general public, you should have a compensable case. There are thousands of pages of court opinions defining exactly what constitutes a compensable injury that "arises out of" and "in the course of" employment. For example, if you park your car in a lot at work that is open to employees and the general public and you fall in a hole, you might not be covered, as you would arguably be subjected to the same risk as the public. However, if that parking lot is ONLY for employees, then you probably would have a valid WC case. There are some limited situations where intoxication can be used to deny what would ordinarily be a compensable claim.

You’re Entitled to 3 Benefits

• TTD (Temporary Total Disability). After the third consecutive day off work following an injury, you are entitled to TTD, paid at a rate of 2/3 of your Average Weekly Wage (AWW).
• Medical Benefits. You are entitled to have your employer (or their insurer in reality) pay for all medical bills for any 2 medical providers or referrals from those 2 providers. There are some very limited instances where you can only choose one provider of your own. The benefits will be paid pursuant to the Medical Fee Schedule, which sets by law the amount that shall be paid for certain services, based upon geography and other factors. Once a bill is paid in part via the Fee Schedule, there is no balance due.
• PPD (Permanent Partial Disability). This is paid once you are recovered fully and released from medical care, and usually back to work full-time. It is paid at 60% of your AWW. If you do not have an attorney, it is very rare that you will receive any offer at all, and, if you do, that it will be even close to reasonable. Insurance companies bank on unrepresented workers who are unaware of the requirement they file an Application and their unfamiliarity with the process and valuation. Some of the factors used to evaluate the value of a case by an arbitrator are: wage rate, body part, affect on ability to perform work tasks, and AMA impairment rating.
• PTD (Permanent Total Disability). This is very rare, and only is contemplated when the employee cannot return to work at all. It is essentially a lifetime (or working lifetime) benefit paid on a weekly basis at 2/3 of AWW.
• Wage Differential. In some limited cases, an employee is injured and cannot return to her normal job. She may find a job elsewhere or with the same company, but making less money. For example, let’s say a steel worker was earning $2,000 weekly, but due to a fractured leg, can only work in a data entry position earning $1,000 weekly. In general, the employer would be required to pay the difference during her working life.

Your Employer Has the Right to Have You Examined

In what is commonly known as an IME, or “independent medical exam,” the employer can have the injured worker examined by a doctor chosen by them. This occurs under Section 12 of the Illinois Workers’ Compensation Act. The doctor chosen is paid for by the employer. You can see where he or she would be motivated to find the worker able to return to work, even if the worker’s own doctor disagrees. If a Section 12 doctor consistently saves an employer money by returning injured workers to work, that doctor will continue to receive these assignments and profit from them. Failure to attend a Section 12 provides your employer the basis to cut off all further medical and TTD benefits. SO, YOU CAN HAVE YOUR WORKERS’ COMPENSATION BENEFITS CUT OFF FOR FAILING TO ATTEND THE SECTION 12 EXAM OR BECAUSE THE SECTION 12 DOCTOR BELIEVES YOU ARE ABLE TO RETURN TO WORK.

Disputes Are Addressed

Your case is assigned to an arbitrator, not a judge. The arbitrator is a lawyer and the rules of evidence apply, although the IWCC has special rules that are not exactly the same as those in “regular court.”

• Immediate disputes can often be handled with a Petition pursuant to Section 19(b). While they are called "emergency" petitions, they can take several months to get heard, and may be further delayed if taken up on review or appeal. These are used in cases where the employer is refusing to pay TTD, medical, or both.
• Trials are conducted for cases motioned up for trial or for cases that are older than 3 years old where the employee is no longer receiving medical treatment. They require full sets of medical records and often depositions of doctors in order to proceed. They can also be reviewed or appealed.

Schedule a Free Consultation

If you are injured on the job site, consult a lawyer immediately to determine what rights you may have under the Act. Attorney Stephen Hoffman has been representing injured parties for over 25 years. Contact the Law Office of Stephen L. Hoffman today to schedule a free consultation: call (773) 944-9737 or email stephen@hofflawyer.com.