KNOWLEDGE IS POWER

Your Rights Under the Illinois Workers Compensation Act

An Overview

The Illinois Workers Compensation Act provides a no-fault system to compensate Workers for injuries they suffer in the course of employment. The Act covers basically all employees in Illinois with several exceptions: employees of small farms; employees of businesses with payrolls less than one thousand dollars; federal employees; and police officers and firefighters employed by the City of Chicago.  Coverage may extend to individuals employed by out of state companies, who were injured in Illinois; individuals who were originally hired in Illinois and traveling employees whose employment required them to work outside the state of Illinois.

Hearings, if necessary, are presided over by an arbitrator and are adversarial.  The employer is almost always represented by counsel at these hearings.  The arbitrator renders a decision on the disputed issues several weeks after the conclusion of the hearing.  There is no mechanism for trial by jury under the Act.

Most employers are covered by Workers Compensation insurance.  Insurance companies employ hundreds of people who are experienced in the investigation and adjustment of claims. Employers who are self-insured for work-related accidents employ trained professionals to administer such claims for injury.

Report Every Injury Immediately

Every injury suffered in the course of employment should be reported to a foreman or supervisor as soon as practical.  This applies to even the most minor injuries.  Minor injuries may be more serious than they initially appear.  Although the Workers Compensation Act allows an employee 45 days to report an injury, the longer the employee waits to report the injury, the greater the likelihood of a challenge to the claim.  The report of injury may be oral or written. Even when the employee is unsure of the cause of the injury (s)he should still report the injury promptly.  Repetitive trauma injuries (such as carpal tunnel syndrome) which develop gradually over time are a prime example.

RECORDED STATEMENTS

The Illinois Workers Compensation Act does NOT afford your employer or their insurance carrier the right to call you and take a recorded statement from you. Volunteering such statements can be damaging and even fatal to your claim. If you have adequately reported your accident to your employer it is recommended that you refrain from giving such statements or at the very least consult with an attorney before doing so.

Provide an Accurate Medical History

Physicians, hospitals and other health-care providers obtain a history of the patient's condition of ill-being when the patient presents for treatment.  The employee should promptly notify the medical providers of any link the employee suspects between his condition of ill being and his employment.  The more detail provided to the medical provider establishing a link between the employment and the condition of ill being, the less likely a challenge to the claim.

Medical Care

The employer or its insurance carrier is required to pay all first aid or emergency care an employee requires for a work-related injury.  The employer also shall pay for all necessary medical care prescribed by up to two physicians of the employee's own choice plus all medical care provided by other care givers within the doctors' chain of referral.  The employee retains his/her right to open medical care for this work injury for life, unless the right is expressly waived.  The employee is not obligated to submit to medical care from a physician designated by the Company or its insurance company.  The employee shall be obligated to attend an independent medical evaluation scheduled by the employer provided that payment of travel expenses has been tendered and the employee is actively receiving temporary total disability benefits.

Temporary Total Disability Benefits

An employee who is temporarily unable to work as (s)he heals from work-related injuries, is entitled to receive weekly benefits equal to 66 2/3% of his/her salary for the year preceding the injury.  The employer is not obligated to pay temporary total disability benefits for the first three days that an employee is off work due to the work injury.  If the employee is off work for more than 14 days then benefits for that three-day waiting period must be paid as well.  An employer who is paying temporary total disability benefits cannot terminate the employee's benefits without a supporting medical opinion.  It is for this reason that an employer may schedule an independent medical evaluation.  Failure to attend an independent medical evaluation without good cause may result in the suspension of the employee's temporary total disability benefits.

An employee who is released to return to work at less than full duty must obtain specific restrictions from the physician in order to protect his rights. If the employer is able to accommodate restricted duty work, the employer may terminate temporary total disability benefits upon tender of a job.  If the employer cannot accommodate the specified restrictions, the employee is entitled to continue to receive temporary total disability benefits.

Permanent Disability Benefits

Following a course of medical care, the employees medical condition will reach a healing plateau.  No matter how competent the physicians and care givers were in providing medical treatment, it is likely that the employee will experience permanent effects as the result of the work injury.  The Workers Compensation Act provides several methods to address the economic loss occasioned by the permanent injury.

Permanent Partial Disability: the most common type of permanent disability benefits paid to injured workers.  These benefits are paid upon the determination that the employee has lost a portion of the use of a specific body part.  "Loss of use" of a body part is a legal term of art and not a medical assessment.  Benefits are paid at 60% of the employee's average weekly wage.

Permanent Total Disability: benefits paid to employee when (s)he is unable to return to gainful employment due to a serious work-related injury.  These benefits are paid to the injured worker for life at a rate of 66 2/3% of the employee's average weekly wage for the year preceding the injury.  These benefits terminate upon the death of the employee.

Wage Differential Benefits: some injuries leave permanent restrictions which necessitate retraining of an employee.  Where the new job results in a rate of pay lower than the rate of pay for the employee's former position, the employee is entitled to receive two-thirds (2/3) of the difference between the rate of pay in the new position and the rate of pay the employee would have enjoyed in the former job.  These benefits are subject to certain caps set by law.

Filing a Claim

In order to enforce his/her rights under the Workers Compensation Act, the employee must file an Application for Adjustment of Claim with the Illinois Industrial Commission.  This must be done within three years of the date of accident or two years from the date temporary total disability benefits were last paid or the employee's claim will be time barred.  An employee is permitted to file a new Application for Adjustment of Claim for a new injury even if (s)he has previously received a settlement or award for the same part of the body.  Consult an attorney immediately as to the Statute of Limitations applicable to your case.

Other Rights

The Workers Compensation Act provides assistance to injured workers who are unable to return to their former line of employment in the form of vocational rehabilitation.  This assistance ranges from training to re-education.  An injured worker may petition Illinois Industrial Commission for medical expenses he has incurred as a result of his work injury following an award from the Illinois Industrial Commission where the insurance carrier is disputing that the medical expenses were causally related to the original injury.  The petitioner may also seek an increase in his/her disability benefits if his/her condition worsens in a 30 month period following an award of permanent partial disability benefits.  The Workers Compensation Act also provides a mechanism to award Compensation for permanent injuries resulting in disfigurement.   Disfiguring injuries are compensable provided the scar is below the knees or above the middle of the chest.

An employer may not harass, fire or discriminate against the employee in retaliation for the exercise of his rights under the Illinois Workers Compensation Act.  An employer which engages in this type of conduct may be civilly liable to the worker for damages.

Concurrent Remedies Outside the Workers Compensation Act

Where an employee's injury is caused by a third party (s)he may seek damages through a civil lawsuit.  An employee who suffers injury as a result of defective machinery may seek relief against the manufacturer.  An employee working on a construction site who suffers injury as a result of the negligence of an employee of another contractor may seek relief against those in charge of the work.  An employee traveling from one area to another who was injured in an automobile accident caused by the negligence of the other driver may seek recovery from that driver.  Seek legal advice immediately as prompt investigation increases your likelihood of recovery.

Social Security Benefits

An employee who is unable to work for more than one-year may be eligible for Social Security disability benefits.  Receipt of these benefits may have an effect on your Workers Compensation benefits.  Consult an attorney to assist you to obtain these benefits and to help you avoid any pitfalls.

Gregory J. Saunders
Saunders, Condon & Kenney, P.C.
Attorneys at Law
111 West Washington St., Suite 1001
Chicago, IL  60602
PH: 312-236-3735  FAX:  312-236-3764
Cell:  312-961-5220
Toll Free:  877-787-4878
gsaunders@scklaw.com