Workers’ Compensation

Illinois Workers Compensation Benefits

This web page is designed to help people understand the workers compensation benefits available under Illinois law. It is written for injured people but should help others understand who are not injured but interested in this area of the law. The Act is complicated, but feel free to read it. The Rules govern practice before the Illinois Workers Compensation Commission. The Handbook is easier to understand and is designed to help workers compensation claimants.

Notice

An employee must give an employer notice of an accident within 45 days. Otherwise the claim is barred. This notice need not be in writing. However, it is better to put the notice in writing.

Statute of Limitations

The statute of limitations is normally three years for work comp claims. This can be different in some cases, especially if the insurance company or employer pays benefits for some period of time. This can extend the statute of limitations. In repetitive trauma cases (like the common carpal tunnel claim) the statute is 3 years from the “manifestation date.”

TTD

TTD stands for Temporary Total Disability. It means the time an injured worker is totally disabled from work. Usually you need an off work slip from the doctor. The benefit is 2/3 of your gross weekly wage. If you have two jobs and the one where you were injured knows about both jobs then average weekly wage includes both wages. The average weekly wage is based on gross (before tax) earnings. This term is sometimes called “TT,” “comp” or “weekly benefits.” The maximum and minimum rates are found here.

Medical Benefits

A work comp carrier must pay medical benefits for medical expenses incurred by an injured employee. This includes chiropractic. It can include medical benefits regarding an injury for life. For instance assume an injury to the metatarsal bones in the foot. Often, with a bad break of one or more of the metatarsal bones a surgeon will put hardware (pins, wires, plates) in the foot. In the foot these may come loose or need to be replaced. If they need to be replaced employer or its insurance company should pay for this. However, if you settle a case insurance companies usually want to close out medical. The company will insist on language in the settlement contracts that say that there are to be no future medical payments. If, instead of the parties entering into settlement contracts, the case gets tried before the Illinois Workers’ Compensation Commission, the victim maintains the right to have medical bills submitted to the workers compensation carrier stays open. The worker can get medical for life regarding the accident. A lawyer can put language into settlement contracts which provides for future medical for the worker.

With certain exceptions, you have the right to be seen by two doctors and their referral chains. If you go to more than that workers compensation will not have to pay for it. Get referrals.

Health Insurance

Health insurance companies often say that you should submit the bill to the workers compensation carrier. The workers comp carrier will often tell you that you should submit it to your health insurance. Both would rather have the other company pay. It can confuse people. Who really has to pay? The answer is both. You have a contractual relationship with your health insurance carrier to pay. There is a duty imposed by law on an employer and its comp carrier. (An employer is required by law to carry workers comp insurance. The comp carrier usually pays the employee). If a health insurance company pays for a bill that someone else has to pay they are usually entitled to subrogation. (See below). Submit your bills to both health insurance and workers compensation, unless the workers compensation carrier has accepted liability. If it denies liability, make sure bills are sent to your health insurer so your credit does not get affected. You should not have to wait for either carrier. If they both pay the medical provider the insurance companies can worry about getting their money back.

Subrogation

If your health carrier pays for your medical bills it is entitled to get paid back by the employer in a workers comp claim. Make sure if your health insurance carrier pays your medical bills that you do not sign settlement contracts or releases that release your rights to medical. If you do you may prejudice the work comp carriers right to reimbursement. The work comp carrier might decide to sue you.

Disability

The workers compensation system is established to compensate injured workers for their disability. Disability means the inability to do the things the worker used to do. It does not mean pain and suffering. Pain and suffering is an element of damages that can be recouped in tort cases but not in workers compensation claims.

Permanent Total Disability

Permanent total disability, often referred to as “Permanent Total” means that the worker will never be able to work again. Benefits are paid differently than with a permanent partial disability. (See Below).

Permanent Partial Disability

Permanent partial disability means the disability that the worker will suffer. It is compensated as a portion of a body part based on a schedule. (See Below).

Wage loss differential

People who are permanently disabled in a work comp injury often will have to get new jobs because of the disability. Example - journeyman carpenter who works at $28 per hour who loses the use of his hand. The journeyman may have to work in a field other than carpentry. When this happens the person may get less money at the new job than at the old one. If that is true the person is entitled to be paid a portion (2/3) of the difference. Wage losses can be huge over someone’s life. In our example, assume that the journeyman carpenter must take a job at $16 per hour. His wage loss is $12 per hour. This is $24,960 per year, assuming a 40 hour work week and 52 work weeks per year. The life expectancy of a 30 year old man is 44.7 years. The wage loss over that workers life is $1,115,712 without accounting for inflation or increases in the workers pay over his life. For people injured on or before September 1, 2011 a person is entitled to their wage loss, established at trial, for life. For injuries that occur after September 1, 2011 the worker only enjoys the wage loss through their 67th birthday or 5 years from date of the award, whichever is later.

Vocational Training

If an employee cannot work and will sustain a wage loss both the employee and the employer may feel that vocational training may be needed. In our example with the journeyman carpenter vocational training would reduce the wage loss to $5 per hour if a vocational expert can get the employee to work somewhere for $23 per hour. There are people whose job is to assist people in these situations to find new jobs. Employers are required to pay these vocational experts. The vocational training can be expensive and very helpful for the employee. It can include just about anything meaning college, on the job training, computer school, etc. The possibilities for vocational training endless and are really only limited by people’s imagination.

Death Benefits

If a worker is killed on the job his or her heirs are entitled to benefits for their life.

Permanent Total Disability.

In some cases a worker will be hurt so badly that she can no longer work in any capacity. This is called a permanent total disability. The employee is entitled to TTD for life. Permanent totals are often confused with 100% man as a whole . These are different concepts. With permanent total disability there is no vocational training that will get the person back to work. Often, but not always, people who are permanent totals are older individuals who are not as healthy to begin with or are less interested in retraining. Often permanent totals receive social security disability. A big, and sometimes complicated issue surrounding permanent totals is whether social security will get an offset for the amount paid from workers compensation. Often a worker will want to declare that the lump sum payment represents payments over his life expectancy or maybe his work life expectancy. By doing this the worker can reduce the amount of offset. A worker may also want to allocate a certain amount of a lump sum settlement to future medical expenses to avoid an offset.

This can maximize benefits so a worker may keep a large sum of cash, say $100,000.00 and still get social security disability. How would a worker do this? Assume an Average Current Earning of $500 per week. This is a term that the Social Security office uses. (It is usually expressed in months rather than weeks but I am trying to simplify the math for this example). It means what a worker made before she was disabled. If a worker gets $100,000 settlement through their workers compensation claim and spreads it over his work-life expectancy so that the $1000,000 represents $50 per week for 2,000 weeks, Social security would claim it was offset for the first $50 and pay $450. This allows the worker to get $450 in Social Security Disability and also have $100,000 in cash, if the settlement contracts are drafted properly. This can be an enormous benefit to the worker, who may buy a house with cash.

This kind of calculation is not limited to permanent total cases. It can be used in wage loss or permanent partial disability cases, although less commonly so.

Permanent Partial Disability

This is the amount a worker gets for the disability. It is usually paid in a lump sum. It is what the worker usually gets at the end of the case to settle the case forever, although some issues (like future medical) can be left open. Permanent partial disability is expresses as a portion of a body part. For instance one might settle a carpal tunnel case for “10% of a hand” or a back case (spinal injury) as “6% man as a whole.” Each body part is given a number of weeks which is decided by law. The following is a list of the bigger body parts: Man as a whole: 500 Eye 162 Leg 215 Foot 167 Arm 253 Hand 205

There are listings for each finger and toe which I have omitted for the sake of brevity. There are calculations for hearing loss, fractures of the skull vertebrate, transverse process, facial bones, kidney spleen, lung, testicle(s), vision impairment and for disfigurement.

Permanent partial disability is multiplied by the permanent partial disability rate (PPD). The PPD rate is 60% of Average Weekly Wage (See above). This then gives an amount of money that the worker is entitled to receive.

Penalties

A worker can get penalties from her workplace for unreasonable refusal to pay benefits. The penalties are limited statutorily.

Taxes

Workers comp cases are not taxable.

Bankruptcy

Workers comp benefits are usually exempt from bankruptcy. If you are contemplating bankruptcy and have comp benefits be very careful not to co-mingle the proceeds with other money.

Attorney Fees

Attorneys fees in Illinois are capped at 20% by statute, in general

Costs

It can be expensive to take doctors depositions. Doctors usually charge several hundred dollars an hour. Court reporters are not cheap either. These may be absolutely necessary in some cases. They may be unneeded in other cases.

Appeals

To the industrial commission - The rule is that the commission views the arbitrators finding “de novo” meaning that it gives no deference to the arbitrators findings. I believe the Commission actually does give the arbitrator some deference.

To the trial court. If your are not happy with the ruling of the industrial commission you can sue it in court. It is very tricky to file suit procedurally and the standard is “abuse of discretion” for most issues, meaning that the party appealing must show the Industrial commission abused its discretion.

To the Appellate Court

You must show the trial court is wrong in ruling against you.

Supreme Court

You must show the appellate court is wrong in ruling against you.

Discrimination.

An employer cannot fire a worker for exercising her rights under the workers comp act.

Americans with Disabilities Act (ADA)

According to the Americans with Disabilities Act, ADA, an employer must give “reasonable accommodations” to seriously disabled people.

Liens

Not many liens attach to comp claims. However, child support, medicare, public aid, ERISA, income tax liens, attorneys fees, veterans benefits and other government payments may be a lien on a workers compensation claim. If, as a result of your injury, you will in the future apply for certain medical benefits from the government, like medicare or medicaid, you may need to set aside money for that in your settlement.

Procedure

Claimants get a hearing. There is no right to a jury trial. The hearing is conducted by an arbitrator. If the arbitrators decision is appealed the industrial commission hears the case and either accepts the findings of the arbitrator or makes new findings, giving a new award.

Lawyers

Many lawyers that do not know much about workers comp will take a case. A single comp claim may be profitable for a lawyer, even if handled badly. Make sure you get a lawyer that does enough to know what he or she is doing. The rules are much different from normal court. Also make sure you get a lawyer who has a working knowledge of the medical issues. Get a lawyer that handles a lot of injury claims. Medical issues in injury claims are confusing to lawyers who do not handle them. Often if you ask a question to a doctor one way a certain answer will be given. If you change the wording a little the answer will be different. For instance, if a lawyer asks if a plaintiff who suffered a soft tissue injury has a permanent disability the doctor may say no. If the lawyer asks the same doctor about the same plaintiff “will the petitioner ever be the same as he was before the accident” the doctor may say the plaintiff may always have pain that will inhibit his ability to do things.

I have explained these concepts in broad terms so that they are easy to understand. There are exceptions to most things. Be careful.

If you want to learn more about a specific injury that happened on the job, Contact Jim Ackerman and understand your rights today.