Workers’ Compensation Refresher

Many people assume that workers’ compensation will never apply to them because they “work a white-collar job,” “work from home,” or “don’t do anything dangerous.”

You might be surprised how many scenarios are actually covered by workers’ compensation.

First, the Basics

In Illinois, workers’ compensation is governed by the Workers’ Compensation Act, 820 ILCS 305. There are also a ton of regulations that have been written to fill in the gaps in the Act.

But the basics are that you are covered when you are performing your job in the prescribed way. The language of the Act is “arising out of” and “in the course of” your employment. While there are hundreds of odd exceptions (a traveling employee taking an “entertainment” break in a hotel room and injured his back in the process was—somewhat amazingly—covered) and strange reasonings, the crux of it is if you are doing your job within the limits of your job description and get hurt, regardless of fault, you are covered.

Workers’ compensation is the exclusive remedy against their employer for employees injured while working (there are a few very limited exceptions). If you get hurt at work, you cannot sue your boss/company for “pain and suffering,” or some of the other damages you might have heard about from car crashes or other negligence cases. Workers’ compensation is a “no fault” system, but in return the employer is insulated from almost all negligence suits, and damages are capped, based upon rates, body part injured, and such.

A factory worker loading boxes on a pallet who twists to perform this task and feels her knee pop is a classic example of a work injury that would be covered by the Act.

Notice Anything?

What else is necessary for the case to be covered?

There must be notice to the employer, either in writing, orally, or both, within 45 days of the alleged injury or manifestation of the injury. If that factory worker hears and feels her knee pop, says nothing, and gets no medical treatment for two months, she’s probably out of luck.

Anything else needed?

An Application for Adjustment of Claim must be filed within three years of the alleged injury (or two years after the last payment of benefits). Generally, you should have three years. There’s no filing fee, so there is no reason not to retain a lawyer and file quickly.

What Is Covered?

First of all, employers are required by law to maintain workers’ compensation insurance. Failure to have this insurance will result in fines and other penalties to the employer.

Workers’ compensation covers the following benefits:

• Medical benefits
• Temporary Total Disability (TTD)
• Permanency, usually Permanent Partial Disability (PPD), but also Permanent Total Disability (PTD) or Wage Differential

Medical benefits should be covered for any two doctors/hospitals/rehab facilities or any referrals from those providers chosen by the injured employee. While there may be subtle pressure to go to the “company clinic,” this is not required.

TTD is the payment for time off work. After the third consecutive day off per doctor’s orders, an injured party is entitled to receive (tax-free) 2/3 of his or her Average Weekly Wage in the form of TTD. The AWW is calculated based on the average weekly wage for the 52 weeks, or portion thereof, of employment with this entity prior to the injury.

If the worker can work, or if the doctor places the workers on “light duty” and that can be accommodated by the employer, the employee must accept this employment and does not receive TTD.

Finally, permanency payments are contemplated when the employee is completely recovered and returns to work, or is unable to do so. Typically, the doctor will state that the patient is at MMI (Maximum Medical Improvement). If the doctor releases someone back to full duty without restrictions, the case is ripe to be settled. Generally, a PPD or lump sum settlement is achieved by contemplating multiple factors, such as the worker’s age, pay rate, body part injured, ability to return to work, any restrictions upon employment return, job description, and any impairment rating. There are a lot of things to consider. Also, a case can be brought to trial if the offer is not deemed fair. In that case, an arbitrator determines the value of the case and almost always leaves the medical open, so that any future care for that body part is paid for by the employer.

What’s the Differential?

There are some oddball situations where a person is injured at work and is unable to return to that job. If they can find other employment that pays less, they may have a Wage Differential claim. In cases like those, the case is settled based upon the difference between what the worker earned at the job where they were injured and the job they were forced into following the injury.

An example is a delivery driver earning $1,500 weekly, who injures her knee lifting a package. Unfortunately, despite surgery to repair her ACL and meniscus, her doctors will not release her to lift 100 pound packages anymore. So she gets a job as a school teacher where she only earns $1,000 weekly. The settlement would contemplate that $500 a week difference as a weekly payment for the remainder of the working life. There are exceptions, though.

Is that Permanent?

In some rare cases, the worker is injured severely enough that they cannot return to work at all. In some of these situations, they qualify as a Permanent Total and the case would be settled with weekly payments under PTD for their working life.

White Collar, Work From Home…It’s All Covered

Remember earlier, I teased that just about everyone is covered if they get hurt doing their job. I’ll bet you don’t believe me and want some examples.

I’m happy to oblige:

• A sales representative is traveling between appointments in her car and gets involved in a traffic crash and is injured. This is covered by workers’ compensation! There may also be a third party negligence case against the other driver. The interplay between these claims is complicated and demands the services of an experienced lawyer.
• A flight attendant on the international schedule flies to Turin, Italy. While leaving her hotel on the way to dinner, she steps into a hole and fractures her leg. Covered under workers’ compensation.
• A business owner is walking into an office to talk to an employee. The employee has a computer cord across the floor the owner doesn’t see and he trips, fracturing his shoulder. It should be covered under workers’ compensation.
• A person working from home gets up suddenly during a Zoom call only to trip on his desk chair and computer cord, tearing his rotator cuff in his shoulder. This should be covered.
• Prison guards who do a lot of walking between cells have had claims determined to be compensable for foot injuries.

The general rule is that the worker must be injured performing his or her job (not something outside the job description), and there must be an “increased risk” to them that the general public does not face. So not every case is automatically covered (and many insurers fight some of these cases on that basis).

Takeaways

• Workers’ compensation covers most injuries incurred while working
• Workers’ compensation provides three main benefits: medical, TTD, and permanency
• It is possible to have both a workers’ compensation claim and a negligence claim simultaneously

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury and potential liability, if you have been hit by a vehicle, immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.

If you've 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 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front, and he only gets paid if you do. Don’t wait another day; contact Stephen now.