Illinois Workers’ Compensation Basics

Everybody has heard of workers’ compensation, but most people don’t know its origins, or how it really works. Here’s what you should know if you get injured while working.

What is Workers’ Compensation?

Workers’ compensation is a no-fault system designed to compensate people injured while working. In the early 1900s, if you got hurt at work, there was virtually nothing that could be done. You might have no way to earn a living, your family might be in danger of starving, yet there was no system in place to act as a safety net.

Seems hard to believe now, but it was true: a work injury could lead to catastrophe for the worker’s whole family. So in the Progressive era, politicians, social reformers, and others, worked to create a system that would pay people who got hurt at work.

But employers, who were mostly wealthy, didn’t want to get sued every time one of their workers got hurt, fearing it would bankrupt them.

So the “grand bargain” was established. Injured workers were given the ability to file claims for benefits under newly-created “workmen’s compensation” laws; in exchange, employers were shielded from lawsuits filed by employees for work injuries. . Illinois passed its law in 1911.

Essentially, this meant the worker could get compensated for injuries from working, while there would be limitations on how much employers would have to pay. Instead of facing uncertain damages in personal injury cases, employers pay predictable, structured costs in the form of insurance premiums.

In the most basic sense, the only option a worker has when injured while working is to pursue workers’ compensation against his or her employer. With very limited exceptions, a worker cannot sue his or her employer for work injuries. To make things easier on the worker, he or she does not have to prove negligence on the part of the employer.

“Arising Out of” and “In the Course of”

Illinois’ Workers’ Compensation Act specifies that a worker can pursue workers' compensation if the injury “arises out of” and is “in the course of” employment.

Without delving into thousands of pages of nuanced legal case law, this is interpreted as meaning a worker who is performing her job is eligible for workers’ comp.

It means if your job is barista, but you decide on your own to repaint the walls of your store and you fall and break your wrist, you’re probably out of luck. Similarly, if you are backing out of your driveway on your way to begin your journey to work in downtown Chicago and get hit by your neighbor, you don’t fall under the definition, since you are not “at work” and have not “started work” yet.

These days, with so many people working from home and commuting only on certain days, the question of whether someone is at work is becoming more fact-specific than previously.

A classic example is the person who slips and falls in their employer’s parking lot on the way into work. If it was an area only employees could park in, that fact might push things in their favor of their case being compensable under the Act, even if they had not yet “begun work” or “punched in” (true story—I once worked for a law firm that required everyone, including lawyers, to punch an industrial time clock).

Then, there is the concept of “increased risk.” If you are a store clerk stacking boxes of product and lifting it up, shelving it, and you injure your shoulder or back doing this, it seems logical that you are entitled to workers’ compensation. But what about the store clerk who develops a knee problem that the doctor says is from standing too long. It might not be compensable because just about everyone stands for good portions of their day, thus meaning the store clerk is not at an ”increased risk” of injury compared to the general public.

There are some wacky cases out there, such as prison guards who all seemed to develop a painful hand condition called carpal tunnel syndrome, supposedly due to the “repetitive trauma” of turning keys in cell locks, opening and closing them.

Even wackier, there was a case where a worker, in between sales calls, went to a hotel to have an “afternoon delight” tryst and injured his back in the process. Amazingly, that was determined to be compensable.

In other words, if you think you want to handle your own workers’ compensation, just re-read the last few paragraphs, and call me!

Also, if you are a traveling employee, in between sales calls, and you get hit by another vehicle and injured, you may have BOTH a workers’ compensation case against your employer AND a third-party negligence case against the car that hit you. Cases like these can be very complicated, complete with a workers’compensation lien to calculate and satisfy, and competing methods of proof, litigation, and timelines. Definitely not a DIY project.

What Do You Get if You’re Injured at Work?

First things first: your injury must “arise out of” and “in the course of” your employment. Second, you need to report this incident to the employer within forty-five days. Keep in mind, that’s what the statute requires. But good luck getting an insurance company to believe you hurt your back at work if you didn’t get medical treatment for a month and a half.

The closer in time the medical documentation is to the date of injury or manifestation of symptoms, the better luck you’ll have winning your case. Do not delay!

You are entitled to see two doctors/medical providers of your own choice, plus anyone to whom those two refer you, and have those bills paid for by workers’ compensation. There are very specific situations where your choice is limited to one, where the employer has its own PPO system for workers' compensation. It’s rare, but it does come up, as it did in a recent case of mine.

In addition, you’re entitled to payment for the time off work. Assuming your case is deemed compensable, and a medical professional states in writing that you cannot work, after the third consecutive day, you receive temporary total disability (TTD) payments. These are calculated based upon your average weekly wage (AWW). The AWW is figured by averaging your gross wages, counting mandatory overtime, over the year prior to the injury. TTD is paid at two-thirds of that amount, and is not subject to income taxes, meaning that, at least in theory, you will wind up with close to the same income as if you were working.

Finally, the Act provides for some sort of “permanency award” for your injury. This is based upon your job description, age, wage rate, body part, type of injury, any restrictions your doctor puts in place, and a few other factors. Assuming you are able to return to work, you would generally receive a lump sum award, either by settlement or arbitration award, for permanent partial disability (PPD), which, if you’re not freaked out over all the math in workers’ compensation, is calculated at sixty percent of the AWW.

For example, Illinois’ system is very specific. It specifies certain numbers of weeks for each body part. If you lose (for example) one testicle, it is compensated at fifty-four weeks (multiplied by your PPD rate). Lose both and it is one hundred sixty-two weeks.

There are specifications for hands, different fingers, arms, feet, legs, repetitive trauma injuries of the hands (carpal tunnel), eyes, ears, and something called “person as a whole,” which applies to things like back or head injuries.

In specific and rarer situations, people may be entitled to either a “wage differential,” where they have to take a lower wage job due to their injuries, or, they are unable to work at all, and become a “permanent total.” Suffice it to say, this gets very wonky and confusing. If you are even remotely thinking you might qualify for one of those categories, please call a lawyer as soon as possible, because you will get nowhere on your own with an insurance company!

What You Do

A case is initiated by filing an Application for Adjustment of Claim with the Illinois Workers’ Compensation Commission (IWCC). There is no filing fee.

It seems simple, and, in theory, it is. Assuming you name all the correct parties, describe a date of injury that jibes with your medical records and report to your employer, and properly serve your employer.

Every case can go on for three years without any action needed. Once it is that old, it needs to be either tried, or a letter explaining that the petitioner is still treating must be sent to the arbitrator. Cases get dismissed for failure to do this.

The End

Most cases get settled. Settlement contracts, like all other documents, are filed on the IWCC website. The arbitrator will approve the settlement, provided it is accurately stated, it is supported by medical documentation, and all parties have signed it.

If a case goes to trial before the arbitrator, it may take a while. First, the arbitrator may take months to announce a decision. Second, both parties can ask for review at the Commissioner level, the Circuit Court, or the Appellate Court. Appealed cases can take years longer. In other words, if you are not getting paid and you have to wait four years or so, it’s a good way to starve you into submission.

Takeaways

• Workers’ compensation is a no-fault system limited in scope
• If you are doing your job when you get hurt, you probably qualify
• While it seems simple, it’s not. Lots of acronyms, confusing processes, and a system seemingly designed to frustrate employees

Contact Chicago Personal Injury Lawyer Stephen Hoffman

If you have been injured, whether by an auto accident, bike or pedestrian crash, dog bite, work accident, or medical malpractice, seek medical attention immediately. Report accidents to the police and your own insurance company, or to your employer if you were injured at work. Then contact a lawyer with experience in your type of injury matter.

If you have been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 35 years of legal experience and gets results; he has collected millions of dollars for his satisfied clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. Stephen is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles injury cases on a contingency fee basis, which means you pay nothing up front, and Stephen only gets paid if you do. You have only a limited time to file a claim, so don’t wait another day; contact Stephen now to get started putting your life back together.