Workers’ Compensation 101

Many people tune out when they see the term “workers’ compensation,” or the outdated “workman’s compensation.” They figure, “I work at a desk so why would it apply to me?” Or they figure it can’t be much different from a basic auto insurance claim.

Read more to find out just how wrong those assumptions really are.

What Is Workers’ Compensation?

At its essence, workers’ compensation is a nearly no-fault system to compensate people injured while working. Over a hundred years ago, you got hurt at work and it was “so sorry, have a nice life.” Then, reformers recognized that protecting workers, often engaged in dangerous factory jobs, had some societal benefit, and the workers’ compensation system was created.

As part of the “grand bargain” that is workers’ compensation, it was designed to be the “sole remedy” for work injuries. This meant that employees could not sue their employers for work-related injuries. That’s it: in exchange for not having to prove liability, you are limited to workers’ compensation.

In Illinois, under the Illinois Workers’ Compensation Act (820 ILCS 305), someone who is injured while working is entitled to three basic rights for an injury “arising out of” and acquired “in the course of” employment:

• The right to have medical bills paid. This is not carte blanche, but is instead limited to two medical providers of the employee’s choice (and any referrals from those providers). If the employer has a separate HMO dedicated to workers’ compensation, which is rare, this is pared down to one choice. These bills are paid pursuant to a complicated “sliding scale” known as the Medical Fee Schedule. Basically, all your medical bills that are related to your injuries get paid.
• The right to be compensated for time off work. This is known as TTD, or Temporary Total Disability, which is calculated roughly as two-thirds of a worker’s Average Weekly Wage (AWW). AWW is the average earnings of the 52 weeks preceding the work injury. It can get complicated, in that regular overtime is counted, but, as is typical in the legal field, “it depends.”
• The right to receive compensation for the permanent effects of his or her injury. This is usually under the rubric of Permanent Partial Disability (PPD), which is calculated at sixty percent of one’s AWW. There are some limited situations where a worker cannot return to any work and is deemed a “permanent total,” and receives Permanent Total Disability (PTD) at the same rate as TTD from date of injury through retirement age. There are even situations where the employee gets a new job that pays less and can receive a wage differential (basically, the difference between the wage they used to make and the one they now earn). But the vast majority of settlements or awards are based upon PPD.

There is a notice requirement. The worker must provide written or oral notice to her employer within 45 days of the injury. And while it’s not required, the closer in time to the injury a worker gets medical attention for the injury, the more easily the case is proved.

Workers’ Comp—It’s NOT Just For Hardhats!

Here are just a few scenarios where workers’ compensation might cover one’s injuries

• You are rear ended by another vehicle while on the way to visit a customer
• You slip and fall on ice in the employee section of the parking lot at work
• You slide into second base at the company picnic softball game and blow out your ankle. If this was “mandatory” or your attendance was heavily encouraged, it might be covered.
• You injure your back picking up a case of beer in your employment as a bartender.
• You’re setting up a trade show when a scaffold another company set up collapses. You may have both a workers’ compensation case against your employer and a personal injury negligence case against the company that set up the faulty scaffolding.
• You work in a factory turning the same screw eight hours a day and develop wrist and hand pain diagnosed as carpal tunnel syndrome. This is a repetitive trauma case and the date of injury is usually considered the date on which the pain “manifested” itself; often the first report of injury or the first medical attention received.
• You are a flight attendant on a trans-Atlantic route and you trip on a pothole walking to dinner in Barcelona. This is a workers’ compensation case—it happened to a client of mine years ago.

How Can I Have a Workers’ Compensation Case AND a Personal Injury Case?

This can get complicated, but in the above scenarios, at the very least, the situation where the salesperson is rear-ended, the construction worker on the scaffold, and possibly the person slipping on ice in the parking lot, may all qualify as such cases.

Now, here is where an experienced workers’ compensation lawyer is essential, because these dual cases will involve the dreaded workers’ compensation lien. Basically, if you recover from a third party in a negligence case (the auto insurer from the car that rear ended you, for example), you MUST repay workers’ compensation (its insurance carrier, most likely) seventy-five percent of the total workers' compensation lien less attorney’s costs allocated to that case (total of medical paid, TTD paid, AND PPD paid).

What this means is that if you have a severe injury, it might be worthwhile to pursue both cases. You may recover enough on the third-party negligence case to easily repay the workers’ compensation lien and still clear additional money.

But what if the third-party negligence case has lousy or limited insurance? Or if your injury isn’t that serious? Or you don’t think you can prove liability in the third-party case? Probably not worth pursuing both cases.

It may be worth pursuing either type of case, but not both, in those situations. Again, it gets very complicated and requires an experienced lawyer to analyze this.

Workers Compensation—What If I’m An Independent Contractor?

Well, lots of people are told by their employer that they are “independent contractors.” But just saying it doesn’t make it so!

Without getting too deep into the weeds on this subject, do not assume you are not covered by workers’ compensation and do not assume you are an independent contractor. Courts and the IRS use complicated analyses to determine whether one is an independent contractor or employee, but some of the things they look at are:

• The amount of control the employer has over the worker
• Whether the employer provides tools or other supplies
• Who sets hours, times, and locations worked
• Whether payroll taxes are withheld

Often, workers with the least control over their jobs are told they are not employees. These often are immigrants, those in low-skilled jobs, as well as many gig workers. There is an ongoing battle to have ride-share drivers classified as employees. This determination often depends upon what state the ride-share driver lives in.

Takeaways

• Workers’ compensation covers a lot more workers than most people realize
• Workers’ compensation is not just for hardhat workers
• Workers’ compensation is almost always the exclusive remedy for injured workers
• Workers’ compensation and personal injury can exist at the same time, (but it’s complicated)
• Workers' compensation itself is complicated, and workers’ compensation liens are really mind-bending

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury, dog bites or injuries, workers’ compensation, medical malpractice, or other injury and potential liability, if you have been injured at work, immediately get medical treatment, report the injury to your employer, and contact a lawyer with expertise in workers’ compensation and personal injury..

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.