Twelve Things Every Worker Should Know About Worker’s Comp

12 THINGS EVERY ILLINOIS INJURED WORKER SHOULD UNDERSTAND ABOUT WORKERS’ COMPENSATION

  1. When Does an Employer/Employee Relationship Exist?

A stipulation of the Illinois Workers’ Compensation Law is that for an injured worker to receive benefits there must be an employer/employee relationship between the parties. In most cases this is not an issue. However, in some cases an employer may claim that the injured worker is an independent contractor.

When there is a question regarding the employer/employee relationship the Workers’ Compensation Commission will examine the relationship and make a determination. There isn’t one single factor that will determine the outcome. Factors including the right to control the work, the method of payment, the right to discharge, the skill required to perform the work, and whether the employer furnish the tools, materials or equipment.  The right to control the work is the single most important factor in determining whether or not an employer/employee relationship exists.

   a. What Benefits Does the Act Provide?

             When an employee is injured on the job, he/she can only recover damages from their employer under the Worker’s Compensation Act. An injured worker may not sue his/her employer in Circuit Court.  However, if a third party was at fault for the employees injuries, the employee will have a “cause of action” against the at fault individual for the company.  This is common in vehicle accident cases.

Generally speaking, the Illinois Workers’ Compensation Act provides the following benefits:

  • Temporary Total Disability (T.T.D.) Benefits:  You are entitled to recover 66% of your average weekly wage during the entire time you are unable to work as a result of the work-related injury.
  • Medical Expenses:  You are entitled to recover your medical expenses that you incur and that are reasonably certain to be incurred in the future as a result of the injury.  You are entitled to choose your own doctor and go to any specialist he refers you to.  The insurance company is required to pay for the specialist’s medical bills.
  • Permanent Partial Disability (P.P.D.) Benefits:  The injured employee is entitled to a permanent disability benefit based on the part of the body injured and the nature, and degree of the injury.  The rate for determining the benefit is 60% of the average gross wages times the number of weeks that the injury is determined to disable the employee. This is the amount from which your attorney is paid his 20% fee. Additionally, this is the amount the insurance company will argue over most.

Unlike an automobile accident when the plaintiff is entitled to other benefits above and beyond, in a workers’ compensation case, the injured worker is limited to the above benefits because they do not have to prove another person or entity was at fault, only that his injury arose out of and was in the course of his employment. There are other benefits under the Act, so if you were severely injured it is highly recommended that you consult an attorney to protect your rights.

It is important that you are aware of these benefits because it is not uncommon for the insurance company to offer you a lesser amount then you deserve. Insurance companies are in the business of making money. The way they do that is by collecting premiums and not paying claims.

b.    What is a Statutory Employer?

The Illinois Workers’ Compensation Act provides benefits not only to employees, but also to the employees of sub-contractors who directly or indirectly perform any work. This portion of the Act is important because it benefits an injured worker who is employed by a sub-contractor who does not have worker’s compensation insurance of their own or does not have the assets to pay benefits that the injured worker is entitled to. If you were injured and your employer did not have worker’s compensation but there was a general contractor on the job, you can file what is known as “an application for adjustment” claim against your employer and the general contractor who becomes the “statutory” employer. The statutory employer is then responsible for paying your benefits. After those benefits are paid and your case is closed, the statutory employer has the right to sue your employer for reimbursement.

c.    What Notice Must Be Given to the Employer?

The Act requires that an injured employee give the employer notice of the injury within 45 days from the date the injury occurred.  This notice must be given to a supervisor, human resource manager or any other member of the management team.  This notice can be given orally or in writing. If it is oral the employer will usually write up the details themselves based on the employee’s account.

Again, this is why I stated previously that you should write down everything you can remember about the accident and/or your injuries before you forget. Failure to notify the employer within the 45 day time period will be something the insurance company will use to avoid paying you benefits. Within 3 years from the date of the accident or 2 years after the last payment of benefits has been made. This is the statutory time frame allowed. Once it passes you will be forever barred        from receiving further benefits.

2.        When Does an Injury “Arise Out Of” Employment?”

The injury must happen when an employee performs work and not on a personal errand.  Therefore, the statement “arising out of employment” simply means that the employee’s injuries are traceable to a specific time, place and cause, all of which are related to their employment.

Not all injuries which happen during work are covered by the Act. The Act does not cover an injury just because it happened at work. For example, if an employee trips while walking down the hall, without any reason or defect in the flooring, then this is not compensable under the Act because the worker was not at any more risk than the general public would be. However, if an employee was walking down the hall while carrying a large box of work related materials and tripped, then this could be sufficient to qualify for benefits. If you have questions about your particular situation then please speak to an experienced attorney who can advise you properly. Don’t attempt to handle this on your own. If you are being denied benefits call an experienced attorney for advice .   

There are a handful of states that allow benefits for an injury just because it occurs during work hours, regardless if the risk was personal but Illinois is not one of these states.

a.   Fighting at the Work-place 

A fight between co-workers’ regarding performance of work is entitled to benefits under the Act. However, the aggressor is not entitled to benefits if they are hurt during the fight. If a fight breaks out due to personal reasons then neither party is entitled to benefits. An example would be, if a co-worker attacks an employee because he or she suspects them of keying their car in the parking lot, then any claim arising out of this situation would be denied. An exception occurs if you were an innocent bystander who was injured during the course of this fight.

b.       Recreational Activities

An employee may be covered under the Act during recreational activities but each case is qualified under specific facts. For example, an employee that is injured while playing on a company’s softball team may qualify for benefits if the employer supplied uniforms, paid any team fees and/or allowed time off with pay for practice and the games. Another example is if an injury occurs at a company picnic. If the employer required attendance at the company picnic then that injury would qualify for benefits under the Act.  If the employee’s attendance at the company picnic is voluntary, and the employee has the option of attending the company picnic or having the day off, an injury occurring at that company picnic will generally be denied benefits.

c.        Intoxicated Employee

In general, an employee who gets injured on the job while intoxicated will still qualify for benefits under the Act. However, there is an exemption if the employer can show that the employee was so severely intoxicated that he/she was unable to perform their job. Failure to pass a field sobriety test, being charged with a DUI or having a blood alcohol level above the legal limit will not automatically deny an injured worker benefits. Of course, the employer is going to argue that if the employee was legally intoxicated at the time of the injury then the injury didn’t “arise out of employment.” Again, the general rule of thumb is that alcohol or drug use will not bar benefits under the Act.

3.      When Does an Injury Occur “In the Course of” Employment?

An injury must also happen during the course of employment. This means either at the physical location or during work duties that might be at another location as part of the employees overall responsibilities.

Generally, commuting to and from work are not covered by the Act. However, if you are running a special errand for the company or if the employer is paying your travel expenses to and from work then you are entitled to benefits.

Many cases involving this question surround injuries which happen in the parking lot. In the event a worker is injured in a parking lot that is owned by the employer, or if the employer requires employees to park in a certain area, generally an injury will be covered under the Act.

As you have read, determining a case’s eligibility under the Act is very fact-specific and it is beneficial to have an experienced worker’s compensation attorney to avoid losing a case, or falling victim to the hidden dangers and pitfalls the insurance carrier will commonly use to trip up the injured worker to avoid paying out any benefits.

4.         What is The Average Weekly Wage?

The Average Weekly Wage, also known as AWW, is the foundation which most benefits are determined including Temporary Total Disability (TTD) and Partial Permanent Disability (PPD) benefits. The AWW is determined by averaging a worker’s pay for the 52 weeks preceding the injury. While this seems straight forward, it is common for claims adjusters, and defense attorneys working for the insurance companies, to fail to include overtime, holiday/vacation or incentive pay when calculating benefits. The Act states that overtime should be included in the average weekly wage computation so long as the overtime is mandatory and occurs on a regular basis. Failing to hire an experienced workers’ compensation attorney can jeopardize an employee’s right to receive the full pay they are entitled to. It is crucial that you consult an experienced attorney to determine if the average weekly wage is calculated correctly and challenge an adjuster or insurance company if the AWW is incorrect.

a.     Bonuses/Fringe Benefits

 The Act specifically excludes bonuses and fringe benefits in the calculation of the AWW. The reason for the exclusion is that “bonuses” are not based on specific work performed by an employee.

While bonuses are not payable under the Act, incentive pay is included in the AWW calculation so long as the employer has included the incentive pay in the employee’s regular wage statements. Again, unscrupulous adjusters will try to say that incentive pay was actually a bonus but an experienced attorney will ensure that your pay is calculated correctly.

b.        Employees Who Have a Second Job

Many employees do not realize that if they have a second job which the employer knows about, the wages of the second job are added to the employee’s regular wage to calculate his average weekly wage.  This will result in the injured employee receiving additional money for the claim.  It is not likely that an insurance adjuster will include a second job pay in the average weekly wage calculation for an injured employee. Insurance companies hire experienced worker’s compensation defense attorneys, and pay them large fees to defend worker’s compensation claims.  There have been many lawsuits and court cases surrounding the calculation of an injured worker’s AWW Again, this is why it can be very beneficial to retain an experienced worker’s compensation attorney who will be on your side and will stand up to the adjuster and big insurance companies.

5.    How Are Temporary Total Disability Benefits (TTD) Calculated?

The TTD benefits are payment to an injured worker for the time that he or she is off from work recovering from their injuries.  These benefits are calculated at two-thirds of an injured worker’s average weekly wage.  The higher a person’s AWW, the higher his TTD benefit check, thus it is important to make sure that there is an appropriate average weekly wage calculation.

The Act has set both a maximum and minimum TTD benefit.  The current maximum TTD benefit is $1,178.48 per week and the current minimum TTD benefit is $200.00 per week for a non-married employee. Below are minimum TTD benefits based on the injured worker’s marital status and number of children.

Married:                                            $230.00

Married, 1child:                              $260.00

Married, 2 children:                       $290.00

Married, 3+ children:                    $300.00

If an injured worker was working only part-time and his average weekly wage was less than the minimum, then his entire average weekly wage will be used as the TTD benefits.

6.        When Do TTD Benefits Start and Stop?

TTD benefits start to accrue the day after an injured worker is unable to return to work as a result of his work-related injury.  However, if the injured worker is able to return to work within 14 days of getting the injury then they will only be paid from the 3rd day to the 14th day. It is only when the worker is off more than 14 days that the Act requires the insurance carrier to pay the TTD benefits from the first day after the injury occurred.

Temporary Total Disability (TDD) payments stop when the injured employee has returned to work without restrictions.

a. Defense Medical Exam

Under the Act the employer has the right to require the injured employee to be examined by their own physician.  This is sometimes referred to as an “independent medical exam.”  However, it is anything but independent. These doctors work for the employer.  The employer is required to pay any traveling expenses to and from the defense medical examination and is required to pay any wages if the defense medical examination is scheduled and conducted during a time when the injured worker is usually at work. It is important that you realize that TTD benefits can be terminated and/or temporarily suspended if the employee refuses to submit to a medical examination requested by the employer.   

It is common for the insurance company to exercise this right and use it to their advantage. Often they will schedule this examination with very little notice, hoping the injured worker will not show up, so they can suspend the worker’s TTD benefits.  This can be a real hardship for the worker and his or her family.

If an employer or worker’s compensation insurance company does suspend TTD benefits, the employee has the right to file an emergency petition to prove to the arbitrator that the employee is still entitled to benefits under the Act.  The petition requires 15-day notice to the employer prior to the hearing and a current doctor’s note stating that the injured worker is unable to return to work as a result of his work-related injury.  The doctor’s note should include the basis of the doctor’s opinion why the injured worker is unable to return to work.

b.        Maintenance Benefits

The Act also provides that in certain cases of a severe injury an injured worker, after he reaches maximum medical improvement, is entitled to receive “maintenance” benefits if he is unable to return to work at his former position. During this time the worker might also undergo vocational rehabilitation training.  The maintenance benefit is paid at the same rate as the previous TTD benefits.  See the section on Vocational Rehabilitation for further explanation.

c.        Overpayment of TTD Benefits

While rare, there are occasions when an injured worker is accidently overpaid under the Act and the insurance companies will fight hard to get repayment of that money.  They can take their case to an appellate court which can order repayment for the extra money or can issue a credit against any permanency award or PPD benefit the worker may receive.

7.    What Medical Benefits are Covered? 

An employer is required to pay for all the medical bills (associated with the work injury only) incurred by an injured worker during his or her recovery time. The law also requires that the employer continue paying for medical bills for the rest of the employee’s life. Despite this, in most cases the injured worker will settle the case and waive any right to future benefits.

By signing a settlement contract the injured worker can’t come back at a later date and prove that his future medical treatment and care was causally related to the original work injury.  This is why it is important that your medical care providers have fully treated your current injuries. Only after you have been fully treated should you settle your workers’ compensation claim.

a.        The Right to Choose Your Own Doctor 

Many injured employees are surprised to find out that they have the right to select the doctor of their choice. All too often workers’ defer to their employer, assuming they have to see the company doctor, if there is one. However, not every company doctor has the best interest of the patient in mind when it comes to medical treatment and return to work issues.

If your employer insists that you need to be seen or treated by the company doctor consider seeking the advice of an experienced workers’ compensation attorney. Bob offers a FREE, honest, no obligation consultation and will even take your case on a contingency basis if it meets the necessary criteria. Call toll free at 855-760-6746. The call is free, the advice might be priceless.

b.        Two (2) Doctor Rule

Not only does the injured worker have the absolute right to choose their own physician for their medical treatment resulting from a work injury, the injured worker is entitled to a second opinion. In addition, the worker may receive additional treatment by any referred physician from either of the initial doctors.  It is the employer’s responsibility to pay for these visits and any additional treatment recommended.

c.        Defense Medical Exam

As stated prior, since the injured employee has the right to choose his own treating physicians, the law provides the employer the right to have the injured employee examined by a physician of their choice.  This is known as the Section 12 Exam, which is a defense medical exam.  The injured employee is required by the Act to be examined by the defense medical examiner. Failure to submit to the exam is grounds to cut off your rights to receive TTD benefits.

Attorney Robert Edens, P.C. recommends to all his clients required to undergo a Section 12 defense medical exam to wear a watch and document exactly how long the defense medical examining doctor actually examines them as opposed to how long they were in the waiting room and/or spoke to the defense medical examiner’s nurse and note exactly what tests he performs and any questions that were asked. Then after the exam to make notes of all the facts so they can be recalled later.

d.        Continued Medical Benefits

Even after an injured employee reaches his or her Maximum Medical Improvement (MMI) and has returned to work full duty without restrictions, they may be entitled to further benefits.   This usually occurs where an injured employee’s condition will not improve despite all the medical treatment they have received to date and they are in need of on-going pain relief expenses.

8.    What is Permanent Partial Disability Benefits (PPD)?

The permanent partial disability (PPD) benefits are the amount of money the injured employee receives after he recovers from his work-related injury.  The Act has assigned a specific number of weeks of compensation for injuries to various body parts.  The current maximum amount of weeks for each body part is as follows:

Arm – 253

Leg – 215

Hand – 205

Foot – 167

Big Toe – 38

All 10 Toes – 13

Thumb – 76

Index Finger – 43

Middle Finger – 38

Ring Finger – 27

Little Finger – 22

Whole Person – 500

However, it is not as straight forward as the above figures. Only an experienced workers’ compensation attorney will fight for your right to collect the benefits you deserve. The insurance company and their defense attorneys will always underestimate the percentage of disability that the injured employee is entitled to despite the calculation for the PPD benefit being very simple.

To calculate the proper PPD payment, you multiply the average weekly wage (AWW) by 60%, then you take that number and multiply it by the percentage loss for each specific body part that was injured on the job. For example, if the average weekly wage is $500 and the employee lost 75% use of one of their arms then the calculation is as follows:

$500 x 60% = $300 then take

$300 x 75% = $225 to arrive at $225 per week

There is a maximum PPD rate of $636.15 per week or 60% of $1060. Any worker having an average weekly wage of over $1060.00 per week or $55,133.00 per year is at the maximum.

a.        Disfigurement

Disfigurement, commonly known as scarring, carries a maximum of 150 weeks of benefits. For the scarring, to be compensable, it must be serious and permanent to the hands, face, head, neck, arm, leg below the knee, or chest above the sternum.   The disfigurement benefit is calculated on a case-by-case basis and can’t be settled until six months have passed since the injury. To obtain the maximum benefit possible under the Act, a disfigured injured worker should consult an experienced worker’s compensation attorney to determine the value of that case.

PPD Benefits don’t include the following:

1.         Past pain and suffering.

2.         Future pain and suffering.

3.         Loss of a normal life.

4.   Temporary aggravations of a condition.

5.         An injury or scar that completely disappears.

6.   Risk of future injury.

9. What is a Wage Differential Award?

A wage differential is an award made to the injured worker when he or she is unable to return to their former position and the job they are able to perform pays less than their past earnings.  If an injured worker qualifies for a wage differential award, the award is generally substantial because, pursuant to the Act, the injured worker is entitled to wage differential benefits for the remainder of his natural life, not just his working life.

The wage differential is calculated by taking 66.3% of the difference between the average weekly wage and what the worker currently earns in the new lower paying position. This benefit is paid weekly for life if the case is won at trial. If the case is going to be settled, the attorneys will estimate the injured worker’s life expectancy and multiply the weekly benefit times the life expectancy of the injured worker. That figure is then multiplied by a discount rate.  In a wage differential case, the lower the discount rate is, the higher the money award is to the injured worker. Generally, a wage differential award greatly exceeds any specific body part PPD award.

You can be sure that neither the workers’ compensation adjuster nor the workers’ compensation defense attorney will tell you that you have a wage differential case.  They will attempt to settle your case on a loss of use basis, in an effort to save the insurance company money.

10.      What is a Permanent Total Disability Benefit? 

If an injured worker is found to be permanently and totally disabled they are entitled to receive two-thirds of their average weekly wage for the rest of their life, subject to the statutory maximums and minimums allowed.

In accordance with the Act there are two types of Permanent Total Disability (PTD) awards.  The first is when the injured worker is completely and permanently disabled as a result of their injury; completely incapable of work. The second form is where there is a specific case of loss to both hands, both arms, both feet, both legs, both eyes, or any combination of the two. This is generally referred to as the “statutory permanent total” and has been the basis of many lawsuits and litigation regarding what constitutes a complete Permanent Total Disability.  The Supreme Court of Illinois has held that an employee is totally and permanently disabled when he is “unable to make some contribution to the workforce sufficient to justify the payment of wages”.  While the injured worker may be able to perform some intermittent work they are unable to earn a living because the work they can perform is so limited that no reasonable, stable employment exists in the job market.

There are two types of Permanent Total Disability cases that are not classified as statutory:

a. Workers that are “obviously unemployable,” and

b. Odd lot category workers.

An odd lot on a total disability case is when an injured worker has been unsuccessful in finding work even after a diligent effort has been made, or because of their age, condition, training, education and experience, he is unfit to perform any but the most menial tasks for which no stable employment market exists.  If the injured worker is able to show either of the two, the burden shifts to the employer to prove that a stable employment market does exists and regular and continuous work is available.

Obviously, a Permanent Total Disability case is a complicated and difficult subject with too many hidden dangers and pitfalls. An experienced workers’ compensation attorney is prepared to skillfully challenge the arguments the insurance company will try to use to deny your claim.

11.      What is Vocational Rehabilitation?

If an injured worker is unable to perform the same duties that they were able to prior to the injury then the Act requires an employer to pay for vocational rehabilitation training. Additionally, during the time of re-training, the employer is required to pay “maintenance benefits” which are calculated at the same two thirds of the average weekly wage, essentially the same amount as the rate of the TTD benefits.  Maintenance benefits are to be paid the entire time the injured worker is undergoing vocational rehabilitation training.

To qualify for vocational rehabilitation benefits, the work injury must have caused a reduction in the employee’s earning power.  Evidence must also exist demonstrating that vocational rehabilitation will increase the injured worker’s earning capacity and the employee is likely to obtain employment upon completion of the vocational rehabilitation.  If the injured worker qualifies for vocational rehabilitation, a vocational rehabilitation plan should be filed with the Illinois Workers’ Compensation Commission.  The employer is responsible for paying for all the treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee including all maintenance costs and expenses.

Since vocational rehabilitation cases are expensive, insurance companies spend lots of effort, energy and money defending against them. These cases are very complex and it is advisable to see an attorney to help you navigate the complexities of these types of cases.

12.      What are Death Benefits?

In the event an employee dies due to an accident or workplace injury the surviving spouse, or minor child, is entitled to death benefits at two-thirds of the worker’s average weekly wage. The death benefit to the surviving spouse or minor child is payable for 25 years or $250,000.00, whichever is greater. Burial expenses are also covered at a current benefit of $8,000.00 to the surviving spouse, dependent or to the actual person incurring the expense.

If the surviving spouse remarries and there are not any surviving minor children at the time of the remarriage who were entitled to compensation benefits under the Act, the surviving spouse shall be paid a lump sum equal to two years compensation benefits and all further rights of the spouse shall terminate and no further benefits may be collected.