WORKERS' COMPENSATION LAW HISTORY
Interestingly, Wisconsin is the birthplace of America’s modern workers’ compensation system. In 1911, the Wisconsin Legislature passed the very first American work comp law, which was intended to be a great balancing act. Just over a century later, every state (except Texas) mandates workers’ compensation insurance in some way, and in Illinois and Missouri, the laws are quite similar, though with certain notable distinctions. While these laws were intended to make filing a workplace injury claim simple and uncomplicated for workers, the laws have gotten very complex, and administrative and judicial decisions have frequently muddied the waters between what is compensable and what is not.
These issues have made the process less than transparent and simple for injured workers. Therefore, many people choose to hire their own attorneys to represent them in the process, thus taking some of the pressure off the injured worker and leveling the playing field, so to speak. Regardless whether a person chooses to “go it alone” or hire an experienced workers’ compensation attorney, the work comp system remains relatively adversarial, despite early intentions that it not be.
What is “Workman’s Comp Insurance?”
Once referred to as “workman’s comp,” most states now call it workers’ compensation, acknowledging the need for a gender-neutral terminology. Whatever states choose to call it, work comp insurance is a specific type of insurance policy that employers are required to carry for their employees. While the premiums may feel a bit cumbersome to employers, the insurance policies are actually for the employer’s benefit just as much as the employee.
When a worker is hurt on the job, there’s a good chance that he or she may be hurt badly enough to be put off work. When this happens, the business suffers, the worker suffers, and everyone loses. Work comp insurance is designed to compensate the injured worker so they can recover and get back to work, while protecting the employer from lawsuits. Therein lies the true purpose of workers’ compensation insurance: protecting employers.
Is there a Workplace Injury Compensation Act?
Yes. Every state has some form of workers’ compensation law that governs how workplace injuries will be handled. In Illinois, the Workers’ Compensation Act can be found at 820 ILCS 305. The law sets forth the policies, guidelines and rules for filing an initial claim for benefits, as well as the deadlines for filing a workers’ comp claim. In Missouri, Chapter 287 of the Missouri Revised Statutes controls workers’ compensation laws. Under each state’s laws, an administrative agency is charged with the responsibility of administering the program and deciding claims. This effectively takes workers’ compensation claims out of the traditional court system and places sole responsibility in the hands of appointed (not elected) officials.
In Illinois, the Workers’ Compensation Commission is that agency. In Missouri, it’s the Division of Workers’ Compensation, an agency of theDepartment of Labor and Industrial Relations (DLIR). Each is a specialized government agency with commissioners who are trained and experienced in the rules and regulations applicable to workers’ compensation in their respective states. Claims that cannot be decided through negotiations are presented to these administrative panels to be decided.
Why Would Employers Want to Give Workers a Right to Compensation?
Historically, laborers have been injured at an alarming rate. If one looks back in history to the construction of railroads, early skyscraper construction, or just about any other landmark work performed in this country, you will discover that workers died or were seriously hurt in remarkable numbers.
- 96 people died building the Hoover Dam
- 60 people died building the World Trade Center
- It’s estimated that as many as 1,500 people died building the Transcontinental Railrod
These are just the deaths. Now consider the thousands of injuries, including amputations, broken bones, head injuries, burns, and disfiguring injuries that people suffered working in coal mines, factories, and foundries throughout the U.S. at the turn of the Twentieth Century. As you can imagine, each injured worker whose injuries may have been the result of poor working conditions or negligent employers had a right to file a lawsuit. So, employers got sued. And it began happening a lot. As the Twentieth Century was well under way, workers’ rights were being advocated all over the country, so employers strongly pushed for a way to make sure they couldn’t be sued and run the risk of large jury verdicts. Hence, workers’ compensation was born.
In order to protect employers from large jury verdicts that could arguably bankrupt companies when workers were seriously injured, states passed laws to strike a balance. The deal went something like this:
- Injured workers have no right to file a civil lawsuit
- Injured workers do not get to take their case before a jury
- In exchange, injured workers also do not have to prove that the employer did anything wrong
- Injured workers do not have to go to court to get compensation
- An injured worker can file a claim with the employer’s insurance carrier and be compensated regardless of fault or negligence
- However, compensation will be pre-determined and set by a schedule, based on the body part and degree of permanence
What is Considered a Workers’ Comp Claim?
As basic as workers’ compensation laws may seem, they’re anything but straightforward these days. Take for instance the very concept of what qualifies as a work-related injury. In Illinois and Missouri, like most states, a worker can make a claim if injured on the job. But what qualifies as “work-related?” What is “a worker?” What is “on the job?” These terms are carefully defined by state law, but even the definitions can sometimes be the subject of disagreement and dispute. Here are the broad and general rules that most states apply:
- You must be an employee
- True independent contractors are not considered employees
- The injury must have happened in the course and scope of your employment
- The injury must have some nexus to your job
What is a Worker?
Consider the concept of a contractor. You are probably already familiar with the distinction between a W-4 employee and a 1099 contractor. After all, these terms are clearly defined by the Internal Revenue Service (IRS), and most American workers know that if taxes get withheld, they’re probably an employee. If not, they’re probably a contractor. If you were to assume that these definitions hold true for work comp, you’d be wrong.
Workers’ compensation laws take a broader approach to which workers are called employees. The law generally looks at the nature and extent of the work activities, ultimately looking at the totality of the circumstances when deciding this issue. Here are some of the factors that are considered:
- Does the worker use his or her own tools or the employer’s?
- To what extent does the employer dictate the nature of the work performed?
- Can the worker take other jobs for the employer’s competitors?
- Can the worker engage in jobs directly in competition with the employer?
- When working, to what extent does the employer control the location of the work?
- Who decides what products are used in performing the work?
- Does the employer require the use of a special uniform or dress code?
There are many other similar factors that can be used to determine if someone is truly a contractor or not. This is important, because one of the first defenses most employers use when trying to avoid paying work comp benefits is to argue that the injured worker was not actually an employee, but rather a contractor.
What Does it Mean to Be “On the Job?”
Again, it seems simple that you are either on the job or not, but it’s unfortunately a bit more complicated than that. Consider two examples that may help to illustrate how work injuries can get a little perplexing:
Sometimes employees are asked to do things for their employers, and if done for the purpose of benefiting the company, these are considered work-related tasks. However, where the employee leaves the scope of employment to do something unrelated, then he or she is no longer covered by the employer’s workers’ compensation insurance.
- DETOUR. Say a boss tells an employee to drive to another building across town to pick up some blueprints and bring them straight back. If the employee stops to get a soda on the way, she is likely still covered by work comp, because this would be considered a relatively minor alteration from her job duties and one that is reasonably expected of an employee in order to maintain some sort of comfort. Things like getting a snack, grabbing food, or using the restroom are generally all considered a detour, meaning work comp should cover injuries that happen during these brief deviations from work.
- FROLIC. On the other hand, if the same employee drives 15 minutes out of route to pick up her daughter from school and take her home before returning to her task of retrieving the blueprints, chances are any accident that happens during that deviations will not be covered. That is unless it was part of the normal and anticipated routine that this employee had, and the employer knew about it. Nevertheless, in most circumstances, this would be considered a non-compensable frolic.
Will Workman’s Comp Pay for Surgery?
Yes. In many cases your workers’ compensation claim is designed to compensate you for ALL related medical care and treatment, including surgery. Of course, there are a few things you should keep in mind first.
Your employer’s insurance company has a limited right to direct your care. States handle this differently, so it’s important to work closely with a local workers’ compensation attorney who understands the rules very well and can guide you away from making costly mistakes. Let’s take a look briefly at how Missouri and Illinois handle this issue.
- When in Illinois – An injured Illinois worker will actually get the right to choose his doctor. But this is a limited choice. The law says you get two selections of physicians. Whomever you pick as your treating doctor will have the right to refer you to specialists (including surgeons), and no matter how many referrals they make, these are all considered part of that one choice. Think of the first doctor as a funnel, and once you’ve made that choice, all referrals stem from that doctor. If your employer’s insurance carrier has elected for you to go to a doctor of their choice, you have a right to opt out, but this will constitute a selection. Therefore, the sooner you talk to an attorney, the better off you are. In most cases, the insurance companies will try to pick doctors who reduce or diminish injuries as much as possible. This can have a negative impact on your outcome.
- When in Missouri – Missouri is not as friendly when it comes to your choice of doctors. There, your employer does have a right to select your doctor, and in some cases, they’ll pick one far away who may not be a good fit. And while you can opt out in Missouri, you’ll be on the hook for paying the out of pocket cost of the treatment. This is where a Missouri workers’ comp lawyer can help a lot. Often, your lawyer can connect you with a trained specialist in the same area of medicine as your injury who will treat based on a lien. This means the doctor will hold their bills and seek payment from the final resolution or settlement of the claim. This way, you get the care you need upfront, while the doctor has a way to get paid once your injuries are proven.
Is there an Illinois Workers’ Compensation Death Benefit?
Yes. In fact, both Illinois and Missouri have similar rules allowing survivors to receive compensation for the loss of a spouse or parent on the job. Each state assesses the “statewide average weekly wage” (ASWW), then based on the nature and extent of injuries and body parts involved, a calculation is performed to determine a percentage of your wage that you will receive over a set period of time.
In both Missouri and Illinois, the current guidelines state that the survivors are to receive 66 2/3 percent of the gross average weekly wage that the deceased worker earned during his or her last 52 weeks of employment prior to death. In Illinois, this is capped at 25 years or a total of $500,000, whichever is greater. On top of this, survivors in Illinois can claim up to $8,000 in funeral and burial expenses. In Missouri, funeral and burial expenses are only $5,000.
If you are facing the work comp system in Missouri or Illinois, do not face it alone. First, make sure you report your injury. You do yourself no favors by hiding an injury. In Missouri, you have just 30 days to report an injury. In Illinois, you get only 45 days. If you fail to report your injury in time, you could lose your right to file your claim altogether.
Not Every Injury Lawyer is a Work Injury Lawyer
Throughout Southern Illinois and the metro St. Louis region, there are a lot of attorneys who hold themselves out as being injury lawyers, but there is a huge difference between a car accident and a car accident on the job. At Jerome, Lindsay & Salmi, LLP, our attorneys have decades of experience carefully focusing on workers’ compensation claims throughout Illinois and Missouri. From catastrophic agricultural or factory injuries to injuries suffered by union tradesmen, our attorneys have seen just about every kind of injury there is. We know a work injury usually means a significant drop in income, so we will work with you. We don’t charge for initial meetings with an attorney, and we don’t collect our fee unless we successfully help you obtain compensation for your injury.
If you are facing a serious and debilitating injury as a result of your job, call Jerome, Lindsay & Salmi, LLP today, and let our compassionate and highly-skilled attorneys advocate for you and your family today.