WORKERS' COMPENSATION ATTORNEY ILLINOIS
The Illinois Legislature enacted the Workers’ Compensation Act in 1912, intended as the “Grand Bargain” between employers and employees. Employees were supposed to obtain quicker medical and lost time benefits without having to prove that the employer did anything wrong. An accident at work is compensable so long as the injured worker was at work performing their normal work activities. In exchange, employees gave up the right to file a civil lawsuit against the employer which severely capped the amounts they could recover. Damages for issues such as pain and suffering, loss of consortium, and punitive remedies were specifically removed under the statute. Instead, employees were limited to scheduled losses of disability based upon a chart.
Originally, the Worker’s Compensation Act was intended to be a simplified and expedient method for injured workers to obtain medical treatment, lost time benefits, and a final settlement. However, as the years have gone on, the Workers’ Compensation Act has become more complicated, making it necessary for injured workers to obtain the assistance of an attorney to help make certain that their rights are fully protected. Insurance companies have aggressively sought to deny claims, stop medical care, and do all that they can do to remove or reduce payments of benefits to injured workers.
If you are injured at work, it is important to note that you are not suing your employer but instead simply making a claim against their workers’ compensation insurance company for injuries that occurred while you were working. Moreover, if you need an attorney, you are not billed by the hour or required to provide any form of retainer. Instead, the attorney will charge on a contingency basis which means the attorney will receive a portion of the settlement or award and we will not be paid unless you are paid. Additionally, the attorney will pay the expenses on the case which will be repaid from the award or settlement. Because the percentage is the same regardless of whether you hire an attorney right after the injury or months later, it makes sense to bring in an attorney earlier so they can advise you through the entire process for the same attorney fees.
When you are hurt on the job, there are typically several concerns. How do I get my medical bills paid? Who will pay me if I need to be taken off work while I recover? If I am taken off work, can my employer terminate me or otherwise retaliate against me? If you are the primary breadwinner for your family, it can be even more difficult. Fortunately, you do not have to worry in silence and can have your questions answered and your concerns addressed. This will reduce the stress of being involved in a work injury.
At Jerome, Salmi & Kopis, LLC, our experienced workers’ compensation attorneys have decades of experience helping injured workers navigate the workers’ compensation courts. We care deeply about the outcome of each and every case and we fight for our clients as if they are our family. Our goal is to help you understand your rights and have all the information they need to make educated and practical decisions about their own injuries. So, if you are injured at work, please call us and we can answer your questions and move quickly to make certain that your rights are fully protected.
FAQs — ILLINOIS WORKERS' COMPENSATION
If you have sustained a work injury, the first question usually raised is, “Do I need an attorney?” While the Workers’ Compensation system was originally set up for all employees to obtain benefits without an attorney, the current financial and legal trends often require the assistance of legal counsel. As a result, if your case falls into one of the categories below, you may need to seek advice from a competent attorney:
- You are not comfortable dealing with the workers’ compensation insurance adjuster or their attorneys and would prefer to have legal counsel advising you of your rights at the outset.
- Your case was denied by the workers’ compensation insurance carrier but you feel that your injury was due to an accident or occupational disease that occurred at work.
- The workers’ compensation insurance carrier has accepted your case but has not provided medical treatment or returned your telephone calls.
- The workers’ compensation insurance carrier has accepted your case but has not been paying your lost time benefits; has not been paying your lost time benefits in a timely manner; or has not been paying your lost time benefits at the correct rate in spite of being taken off of work by the treating doctor.
- The workers’ compensation insurance carrier has accepted your case but has not paid the medical bills associated with your treatment.
- The workers’ compensation insurance carrier has assigned a rehabilitation nurse to monitor your case.
- The treating doctor has released you from his care, but you still feel that you need medical care.
- The work injury has removed you from your profession and you have questions regarding whether you will ever be able to return to work in any capacity.
- You have sustained a disabling occupational disease such as silicosis or asbestosis that you feel is related to exposure at work.
The bottom line is that you may be able to settle your case without an attorney if your case has been accepted and all medical and lost time benefits have been paid. These settlements are subject to approval by an Administrative Law Judge (ALJ) who will require that you appear in court to complete the paperwork. However, please note that while the ALJ will review the settlement to make certain that the settlement offer is within a range of value, he/she will not spend an extended period of time reviewing your medical records to identify whether the settlement is fair based upon the unique problems associated with your case.
As a result, many injured employees do not feel comfortable negotiating a settlement without the assistance of an attorney. Many employees are concerned that they may be at the mercy of the insurance company’s adjuster or its attorneys who may be more knowledgeable of the Workers’ Compensation laws. Additionally, these employees are concerned that they may mistakenly give up a potential benefit such as future medical treatment or vocational rehabilitation of which they may not have been aware.
Additionally, it should be noted that attorney’s fees are contingency based, which means that it is a percentage of the final settlement. The same percentage of attorney’s fees of 20% apply whether the attorney is hired at onset of the injury or at the time of settlement. As a result, many injured employees choose to obtain legal advice early in their case to make certain they have someone on their side protecting their legal rights and to make certain that they are treated fairly by the workers’ compensation insurance carrier.
Under the Illinois Workers’ Compensation, you must give notice to your employer within forty-five (45) days after the date of the accident. For occupational disease, you must give your employer notice as soon as practicable after you are aware of the condition. It is always recommended that the notice be given in writing by way of an e-mail or text and that you save a copy of the writing in case the issue is later disputed.
Many work injuries take months to years to reach a final resolution. Once medical treatment is completed, a final trial may be needed to determine the extent of permanent disability caused by the work injury. However, by the time the trial rolls around, the injured employee may have forgotten many of the specific details regarding the injury and subsequent treatment. In order to help to remember the details at a later date, it is recommended that injured employees keep a notebook or calendar of important events in his/her case. These important events include the following:
- Detailed description of the accident, including location, witnesses, and a list of the areas of injury.
- Detailed listing of all the medical care facilities where you were treated, including addresses and dates of treatment.
- Listing of any medical bills that you continued to receive or paid out of pocket.
- Listing of specific dates that you missed work as a result of being taken off work by an authorized treating physician.
Following your work injury, you will be contacted by an insurance adjuster representing your employer’s workers’ compensation carrier. He/she may seek to take a recorded statement from you regarding the facts of your work injury. We recommend that regardless of whether the workers’ compensation carrier has accepted, denied or is investigating, that you only answer questions specifically relating to the work injury.
Most importantly, we do NOT recommend that you give a recorded statement under any circumstance:
There are absolutely no legal requirements that you provide a recorded statement prior to the workers’ compensation carrier being obligated to pay your benefits. Recorded statements are only taken by the insurance company so that they can be used against you at a later trial. If a workers’ compensation carrier insists that you provide a recorded statement prior to them authorizing treatment or lost-time benefits, seek immediate legal counsel.
Following your work injury, the workers’ compensation carrier will send you paperwork that may include a report of injury and almost always includes a medical authorization. If you are sent a report of injury, review the report thoroughly and make any and all modifications as you see fit. Make certain to retain a copy of the report in case it is needed for subsequent litigation.
If you are sent a medical authorization, you should thoroughly read the authorization. If the authorization is limited exclusively to obtaining copies of your medical records pertaining to the present work injury, you can sign and return that document. However, if the medical authorization allows the insurance company to communicate directly with your treating doctors, delete those entries before signing the authorization. The Workers’ Compensation Act allows injured employees to retain the doctor-patient privilege and therefore the workers’ compensation insurance carrier can only discuss the case with your treating doctor if you grant them authority. Otherwise, the workers’ compensation insurance carrier is limited to the reports and disability slips generated by your doctor.
Beware of visits from rehabilitation nurses:
While undergoing treatment following a work injury, you may be assigned a rehabilitation nurse. Many rehabilitation nurses are helpful in expediting medical treatment and benefits. However, many rehabilitation nurses are merely investigative agents for the insurance company. Their purpose is to extensively question you to try to provide the workers’ compensation insurance carrier with a possible defense to deny your case altogether.
Additionally, many rehabilitation nurses meet with your treating doctor regarding your treatment without you being present or even being aware of the meeting. These rehabilitation nurses may seek to have the doctor alter the off work slips and return you to work sooner than originally scheduled. Additionally, the rehabilitation nurse may seek to encourage the doctor to release you from his/her care sooner than the doctor may have planned.
Once a rehabilitation nurse is assigned to your case, we would recommend that you seek legal counsel. If you opt to continue representation on your own, we recommend that you do not sign any medical releases with the nurse that includes language allowing him/her to have any direct conversations with your treating physicians or therapists. Additionally, we would recommend that you advise him/her that any conversations with your doctor must take place in your presence. Do not answer questions about your medical condition with the rehabilitation nurse other than updating them on your current status following the work injury.
Under the Illinois Workers’ Compensation Act, an injured worker has up to 3 years to file a formal Application for Adjustment of Claim. If you fail to file a timely Application, you may be forever barred from receiving further benefits. This Statute of Limitation has some exceptions associated with the payment of benefits but it is recommended that the paperwork be filed within the 3 year timetable to avoid any legal disputes on this issue.
It should be noted that merely advising the employer or completing an injury report is not enough to stop the statute of limitations from continuing to run. Failure to file a claim within the time provided by law generally results in a complete loss of benefits. If in doubt, contact us for further clarification.
While your treating doctor has you off work due to your work injury, you are entitled to be paid two-thirds of your average weekly wage. The average weekly wage is determined by totaling the gross wages for the 52 weeks prior to the date of accident and dividing those wages by the weeks or portions of the weeks that you actually worked. Overtime is included if it is mandatory but it is only calculated at straight hourly rate.
However, there exist statutory ceilings on the amount that you can receive for temporary total disability. These ceilings are based upon the date of injury and are updated annually.
Temporary total disability benefits are not paid for the first three work days lost after a work injury, unless the disability continues for 14 or more calendar days. After missing 14 days, you are entitled to be paid for the first three days of lost time.
If you are released by your doctor to return to work for less than a full workday, you are entitled to receive disability payments for those portions of the days that you are not entitled to work. For example, if the treating doctor limits you to 4 hours of work out of an 8 hour shift, the employer is responsible for paying you for the 4 hours worked while the workers’ compensation carrier is responsible for paying you two-thirds of the remaining 4 hours.
Injured employees are entitled to receive all necessary first aid, medical, surgical and hospital services reasonably required to cure and relieve the effects of the injury or disease. Where necessary, the employee may also be entitled to physical, mental and vocational rehabilitation.
Most importantly, the EMPLOYEE retains the right to choose his/her own treating physicians: The employer cannot force or require employees to go to the employer’s choice of physician. If an employer ever requires you to go to a treating physician of THEIR choosing, seek immediate legal assistance. Please note that the employer may require that the employee be seen for purposes of an independent medical examination. This examination is not the same as evaluating the employee for purposes of treatment.
The employee may seek treatment from a physician of his/her choosing as well as that physician’s subsequent referrals. Additionally, the employee may seek a second opinion from a physician of their choosing, unless the employer has set up a special panel of physicians from which an employee may choose, called a Preferred Provider Program. If the employer has set up such a program, the employee can reject participation in the plan, and instead, make his/her own choice of doctor. In that case, rejecting the employer’s plan counts as the employee’s first choice of treatment.
However, if the employee seeks treatment beyond two choices without prior approval from the employer, he/she may be held responsible for those medical bills. If you are faced with this issue, it is strongly recommended that you obtain legal advice.
Permanent Partial Disability
After your treatment is complete, your doctor will release you from his care, indicating that you have reached a point where your condition will get no better. This condition is known as “maximum medical improvement.” If you are able to return to work, you may still be entitled to a final settlement based upon the permanent loss or loss of use of a part of your body or the whole body.
Factors that are considered in determining the extent of the permanent partial disability include the physical impairment and the effect of the disability on the injured worker’s life including pain, stiffness and limitation of motion caused by the work injury. Other factors include occupation, age at the time of the injury, impact on future earning capacity, and medical documentation of disability. It should be noted that not all injuries or diseases result in permanent partial disability.
Permanent partial disability begins by determining the appropriate body part. The Workers’ Compensation Act divides the body into potential weeks of permanent partial disability. The values are based upon the attached chart:
Unscheduled injuries or injuries occurring to the neck or back automatically go to the level of 500 weeks.
EXAMPLES OF SETTLEMENTS
Settlements based upon permanent partial disability use the following math formula:
% of Disability X 60% of Average Weekly Wage = Settlement
However, as with temporary total disability, there exist statutory ceilings on the amount that you can receive for each week of Permanent Partial Disability. These ceilings are based upon the date of injury and are updated annually.
An employee has a neck injury which requires a surgery. Following the surgery, the employee is able to return to his same job but has permanent restrictions. At the time of the injury, the employee was making $400 per week.
If the case settled for 20% permanent partial disability, the settlement would be as follows:
500 x 20% = 100 x $240 = $24,000
500 (unscheduled injury) x 20% = 100 weeks 100 weeks x $240 (60% of Average Weekly Wage) Total settlement is $24,000.
An employee is diagnosed with carpal tunnel syndrome in his left hand that requires surgery. Following the surgery, the employee is able to return to his same job but has ongoing problems with weakness in the hand. At the time of the injury, the employee was making $750 per week.
If the case settled for 12.5% permanent partial disability, the settlement would be as follows:
190 x 12.5% = 23.75 x $450 = $10,687.50
Please remember that when you settle your case, it traditionally closes out your medical benefits. So, before you discuss settling your case make certain that your medical condition has reached a point were nothing further can be done to improve your medical status.
Alternatively, if your medical condition requires ongoing medical care, you will probably need a final trial and will not be able to settle your case. As part of the final award, the Arbitrator will provide a written award detailing the percentage of disability as well as awarding the future medical care.
If you suffer a serious and permanent disfigurement to the hand, head, face, neck, arms, legs below the knee, or chest above the armpits due to a work injury, you may be entitled to up to 162 weeks of disfigurement. These benefits are paid at the same rate as permanent partial disability.
However, if you receive settlement for disfigurement, you are not entitled to permanent partial disability as well. As a result, you must choose between settling for the disability or permanent partial disability.
If you are released by your doctor with permanent restrictions that your employer cannot accommodate, you will then be left to find new employment in the open labor market. After you have obtained a new position, if there is a significant loss in wages, you may be entitled to 66 2/3% of the difference in your lost wages at the time of trial.
An employee injures his back which requires surgery. When he is released by his doctor, he is given work restrictions that his employer is unable to accommodate. At the time of the injury, the employee was making $25.00 per hour. He is able to get a new position with a new employer but it pays only $10.00 per hour. At the time of trial, the employee would have had pay raises that would have brought his hourly rate to $27.00 per hour.
Based upon these facts, employee would be awarded $453.20 per week until he reaches age 67, or 5 years from the date of the award, whichever is later. The calculations are as follows:
$27.00/hr (rate at time of trial) – $10.00/hr (current rate) = $17.00/hr (lost wages per hour) x 66 2/3% = $11.33/hr x 40 hr/wk = $453.20.
This wage differential is set at the time of trial but continues until the employee turns 67 years old or for 5 years from the date the award becomes final, whichever is longer, regardless of whether the hourly income with the new employer increases. It also continues if he retires or stops working prior to age 67. Please note that this benefit takes the place of the permanent partial disability, permanent total disability, or disfigurement and is not in addition to any of those benefits.
IF YOU BELIEVE THAT YOU ARE ENTITLED TO WAGE DIFFERENTIAL, YOU WILL PROBABLY NEED IMMEDIATE LEGAL ASSISTANCE.
Wage differential cases traditionally are denied or fought by employers due to the employer’s potential financial exposure. If you are a member of a union, you should also contact your benefits office since some disability policies take effect when you are deemed unable to return to work in the same capacity as a union member.
While you are off work due to a work injury, your employer is to continue your group health insurance. However, your employer can you ask that you pay for your portion of the premiums. Since the lost time benefits are being paid by the workers’ compensation insurance company to you, you may need to write a check to your employer to maintain these benefits. If you find yourself in this situation, contact your benefits supervisor who will be able to address this issue.
The FMLA is the Federal Medical Leave Act, a federal law that runs concurrent with the Illinois Workers’ Compensation Act. It provides certain employees with up to 12 weeks of job-protected leave per year. The FMLA also requires that the employer maintain your health insurance during that duration so long as you pay the employee portion of the premiums. The FMLA can be extended beyond the 12 weeks at the discretion of the employer.
Medical treatment stemming from a work accident should be covered by the workers’ compensation insurance company. Further, most group health insurance has an exclusion provision noted that it does not cover work-related medical care. However, if the workers’ compensation insurance company will not approve medical treatment; has not yet set-up its file; or is still investigating the claim, you can use your group health insurance by advising the insurance company that you claim is being denied by the workers’ compensation insurance company. Please be aware that if this should occur, you must make certain to have the workers’ compensation insurance company reimburse the group health insurance company or you could be responsible for reimbursing it.
Under the Illinois Worker’s Compensation Act, it is illegal for an employer to terminate an employee due to filing a workers’ compensation claim. Such cases are very fact specific as the Courts will look at the intent of the employer and whether the employer also had a legitimate basis for termination. If you are terminated, it is strongly recommended that you seek immediate legal assistance as there are limited timetables for filing a complaint.
If you are released by your doctor with permanent restrictions that your employer cannot accommodate, you may be entitled to maintenance benefits. These benefits are at the same rate as temporary total disability and cover the period of vocational rehabilitation while you seek re-employment within your restrictions.
To be entitled to maintenance benefits, you MUST be able to prove that you are in an active job search. This traditionally requires that you keep an extensive job log of all the locations where you have sought re-employment. This includes newspapers, internet, friends, postings, and even assistance of job placement services. This job log should also include any potential employers that you have contacted or with whom you interviewed to obtain re-employment.
Vocational Rehabilitation Specialist
If you are released by your doctor with permanent restrictions that your employer cannot accommodate, in addition to maintenance benefits, you may be entitled to have a vocational rehabilitation specialist assigned to your case. The vocational rehabilitation specialist will help you identify alternate career paths. This specialist traditionally will also contact employers to try to match your skills and work restrictions with potential job openings.
If you are unable to return to work at any position because of your work injury, you may be entitled to receive two-thirds of your average weekly wages for the remainder of your life. There are two ways that you can be permanently and totally disabled.
First, you can be medically disabled. This occurs when your treating doctor concludes that you are medically unable to return to work in any capacity. Second, if your doctor places permanent restrictions on you as a result of the work injury with the effect being that you are unable to return to work, you may be vocationally permanently totally disabled.
Under the first scenario, the employer will traditionally require that you undergo an evaluation by a doctor of their choosing. If their doctor agrees with your doctor that you are medically unable to return to work (which rarely happens) then weekly benefits may be agreed upon. However, if the employer’s examining doctor feels that you are medically able to return to work, then it will be up to an arbitrator to decide which doctor correctly identified your work capabilities.
Under the second scenario, your status of being unemployable and permanently totally disabled only occurs after your efforts for vocational rehabilitation fail. If you have used all reasonable efforts to obtain re-employment, including the use of a vocational rehabilitation specialist, but have been unsuccessful due to your physical limitations, then the vocational rehabilitation specialist will reach a point where he/she concludes that you are unemployable in the open labor market. As with the medical conclusions, this vocational opinion may be challenged by the employer.
IF YOU BELIEVE THAT YOU ARE PERMANENTLY TOTALLY DISABLED, YOU WILL PROBABLY NEED IMMEDIATE LEGAL ASSISTANCE.
Almost all cases of permanent total disability require at least one trial to establish the weekly benefits. Additionally, most permanent total disability cases include issues of future medical care and/or medications which require an arbitrator’s award following a trial.
If you find yourself unable to return to work in the open labor market, you will also need to consider benefits outside of the workers’ compensation system. These benefits can include social security disability, short-term disability, and long-term disability. Union members should also inquire regarding disability policies at both the local and international levels.
When considering benefits outside of the workers’ compensation system, you should be aware that there is a complex and complicated interplay between each of the benefits. We strong urge you to contact us in such situations so that we can explain your rights and how to obtain the best outcome for you.
Under the Workers’ Compensation Act, the State of Illinois has jurisdiction over a work injury if it is the location of accident; where the contract for employment was completed; or where the employment activity is principally localized. There are a number of factual issues surrounding where the contract for employment was completed. Similarly, in determining where the employment activities are principally localized, it is a factually determination comparing the amount of activities within the State of Illinois to those activities without.
Because of the various factors used in determining jurisdiction, it is possible for multiple States to retain jurisdiction over the same accident. While you would not be entitled to double-recovery, you retain the option in choosing the State where you would seek to make your claim. Given that the State of Illinois allows the injured worker to choose the treating doctor, many adjusters try to deny jurisdiction within this State. If you believe that you have a work accident that would qualify for benefits in Illinois but the adjuster is trying to use a different State, contact an attorney immediately to protect your rights.
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