Questions about Chicago Work Comp Law


		1. What is a work comp case? ↑ A: An injury suffered by an employee arising out of and in the course of their employment would be covered by the Illinois Workers Compensation Act. How is a work comp case different from a personal injury or other civil court case? A work comp or occupational disease case is brought before the Illinois Workers Compensation Commission, which is an administrative court. This is not part of the judicial branch like the regular courts. The arbitrators and commissioners are appointed, not elected. Most cases settle. If your case does not settle, you will have a trial. This is called "arbitration." What happens at arbitration is really a trial, not an arbitration. Before the arbitration, the judge will probably talk to your lawyer and the employer's lawyer to try to settle the case. Depending on the judge, the lawyers may be pressured into recommending a lump-sum number to their clients in order to settle the case. Or, the judge may just make some comments about who they think has problems with their case and remind both sides that settlement is in both their clients' best interests. Judges differ widely. If the parties still cannot settle, a trial will be had. Again, this trial is called the "arbitration." This trial will determine many or all of your rights, and is practically final. Sometimes a case will be broken up into more than one trial, with the first trial being had just to determine if you even suffered an injury, if that injury is covered by work comp, or if you are still too disabled to go back to work. The decision of the trial will not be known for several weeks after the trial, and will come to the attorneys by mail from the Commission. Chicago work comp cases, and appeals from the northern part of Illinois are heard at the Jim Thompson State of Illinois building in downtown Chicago on Randolph street, on the eighth floor. You do not need to prove or allege your employer did anything wrong in order to recover workers compensation benefits. If the injury arose out of and in the course of your job, it should be covered. Almost all employers are required to carry workers compensation insurance that should cover your claim. If something about the employment played a causal role in you being disabled, the Workers Compensation or Occupational Diseases Acts should apply. If they do, you become entitled to certain benefits without having to prove your employer, or anybody, was negligent. The injury could even have been partially due to your own negligence. The work comp / personal injury trade-off. If you suffer an injury and disability arising out of and in the course of your job, because of your employer's negligence, you are not entitled to a jury trial, or even a civil lawsuit. Except where your landlord intentionally injured you, you cannot recover punitive damages, pain and suffering damages, or a "verdict" for millions of dollars. Your employer might even accidentally kill you, without having to pay more than $300,000 to your family. This is a decision our elected representatives in Springfield made long ago. To assist business the Workers Compensation Act strips employees of certain rights and remedies they used to have before enactment of the Act. But the Workers Compensation Act gives employees rights too - rights they never would have had without the Act. The Act holds employers accountable to employees for things that are not the employer's fault, and that the employer could never have prevented. Employees do not have to prove their employer was negligent, or even that the injury was primarily caused by work. Work just has to be a cause (one of many causes) for your disability. The work comp trade-off is that employees lose the right to tremendous amounts of money for the few injuries caused by employers' negligence, but gain the right to some compensation for the many injuries that arise out of normal work duties. The Act makes compensation available to many more people for many more conditions than without the Act. There are probably very few workers who could prove that their employer's negligence proximately caused their injury or disease, so the work comp trade-off is mostly in employees' favor. But just because you get hurt at work, this does automatically make your injury a work comp case. Just because it happened at work doesn't make it work comp. There has to be something about the injury that was caused by something that is special about your job. For example, falling down stairs at work for no clear reason may not be covered as workers comp. We have to prove that there was something about your job that made you more likely to fall down the stairs than if you had just been walking down stairs at your home or out in public. Proving this may just require testimony that you were in a hurry, or distracted while talking on a headset to customers, or anything else that made your trip down the stairs at work different from a trip down the stairs somewhere else. Car accidents on the way to and from work may not be work comp. There is a rule adopted by the courts in Illinois that bars employees from coverage by work comp when they are injured in accidents going to and coming from work. The rationale, according to the courts, is that the "employment" starts and stops when the employee gets to, and leaves, work. However, if an employee is on a business trip away from their regular place of employment, at their employer's direction, or out doing tasks during the day at their employer's direction (delivery driver on their route, etc.), they are probably protected by work comp. 2. What are the fees and costs? ↑ A: There is no fee or cost required up-front. Click Here to see our representation and fee agreement. You can compare our agreement to the one supplied by the Illinois Workers Compensation Commission Here. Our office, like almost all other offices practicing work comp in Illinois, gets no fee from your case except if (1) we get you an offer to settle your case that you accept, and you get money, or we (2) win you an award at trial. The fee is 20% of amounts we recover for you. Costs are advanced by our office, and we become entitled to recover those costs back from your settlement or trial award if we are successful. In other words, the costs are going to get deducted from your settlement or award on top of our 20% fee. Costs include the cost of an examination and report from an expert medical witness we may send you to ($500 to $1,500), the cost of a report from your treating doctors if appropriate ($500 to $1,000), the costs of paying a court reporter ($400 to $750) to transcribe the testimony of your own doctor or expert medical witness at a deposition, and the $1,000 to $2,000 cost of paying that witness for their time spent testifying and preparing to testify. Finally, the cost of a copy of the transcript of the employer's expert medical witness is often required, at about $200 to $400. Other costs would include $20 per subpoena to each of your medical providers for certified copies of medical records, and $1,000 to $3,000 for an evaluation and report by vocational experts in cases where we try proving you cannot go back to your regular job because of a work accident or disease. If an offer was already made, then our fee is 50% of the amount we can get for you above what was already offered to you in writing, or 20% of your total recovery, whichever is lower. 3. What do I get for pain and suffering? ↑ A: Zero. Unfortunately, this is the law. There are also no punitive damages available to victims of work comp accidents or occupational diseases. The work comp judges are not allowed to award compensation based on uncorroborated testimony about disability or chronic pain . If you believe you will come into the trial and convince the judge you should be awarded money because you act weak or in pain, don't count on it. Even written reports from chiropractors may not be enough to entitle you to work comp benefits. The work comp system requires certain kinds of proof, presented in a certain way, in order to recover benefits. As much as the judge may believe you cannot work, they cannot award benefits without solid medical evidence that is admissible in court. 4. What benefits am I entitled to? ↑ A: If your injury or disease is proven to have arisen out of and in the course of your employment, you may be entitled to benefits like (This is a non-exhaustive list): "Temporary Total Disability" = Missed Work Pay If your doctor says you cannot work at all, or imposes work restrictions that your job cannot accommodate, then you may be entitled to a tax-free benefit equal to 2/3 of your gross average weekly wage for missed time. This is called temporary total disability. It only applies if you missed more than three days of work. "Maintenance" = Retraining Pay If you cannot go back to your old job because of the injury or disease, and that injury or disease was caused by the work, then the employer has to pay for you to look for or learn to do a new job for comparable pay. So this benefit could include the costs of training as well as a weekly benefit equal to 2/3 of your pre-injury gross average weekly wage. "Temporary Partial Disability" = Wage Differential On a short-term basis, if you have to do a different job while recovering from your injury or disease, and that job pays less, the employer may have to pay a benefit equal to 2/3 of the difference between your pre-injury gross average weekly wage and your current after- -injury net weekly wage. This benefit should continue until you are able to go back to earning your pre-injury gross average weekly wage. "Wage Differential" = Pay Supplement for Life This is like the Temporary Partial Disability, but is an award entered for an indefinite time-period, or your lifetime. Wage differential benefits are meant to be paid monthly for as long as you earn less than you did before a work-related injury. You are to be paid 2/3 of the difference between what you used to earn and what you earn at the time the award is entered. You get a check every week for the same amount for the rest of your life. Your attorney fees are paid by your lawyer taking every fifth check (20%). Forever. "Permanent Partial Disability" = Injury Money This is the money you may be awarded if your injury is proven to cause a permanent disability to your whole person, or part of one of your "parts" (like your arm or thumb or foot). Each kind of injury, and each part of your body, has a scheduled number of units of compensation that it is worth. The number of units of compensation in every person's hand is the same, but the value of each person's unit of compensation is different depending on how much they earned in the year before their injury. So a person who makes a lot of money will be compensated more for the same injury as someone who makes less money. Fair or not, this is the law. What's more, if you earn more than a certain amount per year, your benefits are capped by a maximum. Death Benefits = Payment to Survivors The benefits for a work-related death include a flat rate amount for burial, plus amounts to compensate your surviving beneficiaries based on your pre-death earnings and life expectancy at the time of your death. Medical Expenses To the extent they are "reasonable and necessary" and related to a work-related injury or disease, all of the medical bills are to be paid by the employer's work comp insurance. There is no deductible or co-pay. Also, pursuant to an amendment to the Workers Compensation Act in 2006, if your lawyer sends your medical provider a letter containing certain required information about your work comp case, that medical provider is not allowed to take any collections actions against you while your case is pending. This may stop harassing calls from bill collectors and even prevent marks from being reported against your credit. Other Benefits The items discussed above are not an exhaustive list. Work comp could be required to pay for prosthetic devices (fake arm or eye, etc.). They could be required to pay to renovate your home or vehicle if your injuries require a ramp, lower counters, a wheel-chair lift, etc. 5. Why should I hire a lawyer? ↑ A: If you do not hire a lawyer, the employer and their insurance company know that you cannot prove your case at trial, or figure out how to introduce proper copies of your medical records that will be admissible at trial. They will not pay you what your case is worth. Even if you have a very straightforward case that is "accepted" by your employer's work comp insurance, they know you pose less of a threat than a similarly injured employee who has a lawyer. That other employee will be offered more. Perhaps the bigger question is which lawyer should you hire for your workers compensation or occupational disease case. Make sure they have time to give your case individual attention. No lawyer will ever have only your case, but not all lawyers are trying to handle your case and 500 other ones. Make sure the lawyer you want to hire is actually the lawyer who will be doing all the work on your case! 6. What if it was my own fault? ↑ A: An injury that arises out of and in the course of your employment is compensable under the Illinois Workers Compensation Act. If you were not wearing safety goggles and were supposed to, if you were running to get back from your lunch break and are not supposed to run, these are probably not defenses to your claim. Only if you were doing something that took you totally out of your duties for the job does your own foolish / clumsy behavior potentially bar your claim. In other words, your employer doesn't need to have been negligent, and you could have been, and this still may result in compensation for your injury. 7. How much is my case worth? ↑ A: There is no official answer, but the formulas provided by the Workers Compensation Act do provide a guide by which we could tell you a range within which your injury's dollar value would fall, if your injury was found compensable. The problem is that many work comp injuries are not accepted as compensable by employers and their insurance companies. This is why many cases are not "worth" what you, the injured person, know your injury to be worth. No matter how grave your injury or disability, you will not be awarded any compensation without proving the causal connection between your employment and your injury, and between that injury and your disability. FOR EXAMPLE: Attorney Silverman's Mom Consider the work comp case of attorney Silverman's mother. She tripped over a student teacher's leg at school and fell backwards into a chalkboard, fracturing her left elbow (a distal humerus fracture). She had a pre-injury gross average weekly wage of $1,060 (this means "before taxes"). After work comp paid all her medical bills and money for a few weeks of lost time, and after a year and a half went by so the injury could stabilize, her doctor said it wasn't going to get any better or worse. She had reached "maximum medical improvement". She had gone back to her regular job making the same or more than before the accident. All that was left to fight about was how much the injury was worth. We finally extracted a settlement of $65,000 from the insurance company, representing 102.17 "weeks" of permanent partial disability compensation. A whole arm is worth 253 "weeks" for injuries that happened after February 1, 2006. So 102.17 is 40.38% of the arm. Each of attorney Silverman's mother's "weeks" was worth 60% of her $1,060 average weekly wage, or $636.15. ($636.15 x 102.17 = $65,000). By way of comparison, if you earned half as much and suffered the exact same injury, your award or settlement would likely be for 30-40% of an arm also. But each of your "weeks" would be worth half as much, or just $318.07 each, because your average weekly wage was half as much. That means your compensation for the same injury would likely be half as much if you earned half as much. By way of further comparison, if attorney Silverman's mother had suffered an injury to 40% of her leg, instead of her arm, the value of the claim would be less because a leg is worth only 215 weeks, compared to 253 for the arm. What percent of the ____ is my injury worth? Your lawyer can look up a fairly close range within which your injury would be compensated if the case was won at trial. Attorneys have access to decisions in other cases that can be compared to your own, at least in terms of the medical diagnoses. We understand that no two injuries are really alike, and that everyone experiences pain and disability differently. However this is not likely to be taken into account at trial. Remember, your case may be worth zero at trial. This may be true even if you were legitimately hurt at work. We have seen too many cases where clients refuse to take our advice or the advice of another attorney and reject a compromised settlement offer as "insulting" or "a slap in the face" only to lose their trial because of some unfortunate omission or ambiguity in the medical records. After the trial is lost the employer is not going to still be making that offer! Some problems with medical records cannot be fixed. Work comp isn't pretty. 8. How long will my case take? ↑ A: Too long. Unfortunately there are a lot of steps required before your case can be safely taken to trial and your claims proven. Employers and their insurance companies often take whatever steps they can to delay a good claim's trial date. Or, the employer may appeal your award at trial to avoid paying it for a year or more. Just by filing a free appeal of the work comp trial award, an employer can inject another year of waiting into the process. If the employer loses the appeal to the Illinois Workers Compensation Commission, it can appeal again to the Circuit Court of Cook County. From there the employer can appeal again to the Court of Appeals. If the employer loses at every step along the way, you still haven't gotten paid, and the only consequence the employer suffers is interest on your award at a nominal rate (1%) plus a few hundred dollars in court costs and whatever their own lawyers charged them. We have seen straightforward awards for surgery and money compensation appealed frivolously by employers' attorneys just to delay payment and pressure employees into a settlement for less than the employee was awarded at trial. 9. Why isn't work comp accepting my claim?! ↑ A: Usually because their lawyers have come up with an argument that the employer (1) got no notice of your alleged accident within 45 days, (2) that your claim is barred by the 3 year statute of limitations, (3) that there is no causal connection between your work and your injury, (4) that your accident is not work- related, or (5) that you are not permanently injured. 1. 45 Day Notice of Accident Failing to give the employer notice of your accidental injury within 45 days after it happened is an absolute defense for employers. You are best off sending the employer a certified letter notifying them that you believe you suffered an accident at work after it happens, even though verbal notice is sufficient. What if your work injury arises as a product of many weeks or years of repetitive work? Still, notice must be given within 45 days after an injury caused by repetitive work "manifests" itself. The date an injury from repetitive traumas at work manifests itself is the first date on which you should have realized that your work was contributing to your injury. 2. 3 Year Statute of Limitations You have to file within 3 years after your work accident, or after your repetitive work injury becomes apparent t to you. Three years and one day is too late, and you lose. The statute of limitations is extended each time your employer or their insurance pays for your medical expenses related to the work accident, if it was reported within 45 days. The statute of limitations is extended 2 years from the date your employer last paid medical expenses for your work injury Certain diseases have longer statute of limitations periods, like disease or injury from exposure to nuclear materials, asbestos, and certain other toxins. 3. No Causal Connection to Work Often, employers dispute that your job played a causal role in the development of your injury or disease. The burden is on the injured worker to establish this cause and effect relationship through competent medical evidence. The Commission does sometimes rely on the "chain of events" to find causation, like if you fall off a ladder and your ankle is fractured right after the fall. But anything short of this kind of traumatic accident is not likely to be proven just by the sequence of events. Common causation defenses raised by employers and their insurance lawyers are that: (1) There is a gap in time between the date of your alleged work accident and your first report in a medical report that you are seeking treatment for that work accident. (2) At your first date of medical treatment, your medical reports do not indicate that your injury is from work. (3) You suffered from the same or a similar problem before the alleged work injury. (4) The employer's doctor wrote a report saying that your problem is medically not related to any alleged work accident or activity! There are ways to decrease the negative impact of these defenses, but gaps in treatment and medical records that suggest a non-work cause for your problem pose serious risks at trial. The injured worker needs to tell their medical providers, including nurses, what happened at work and how that has affected their symptoms the first time medical attention is sought. If you think your problem is at least partly from work - seek medical attention very promptly! Fill out an accident report at work right away. You cannot legally be retaliated against for doing this. You have the right to choose and see your own doctor for your first visit too. If your job tells you that you have to see their company doctor first, it is not true. You may want to go see them to document your injury, but then you can choose your own doctor right away for a second opinion and more specialized treatment. Resolving complicated scientific disputes about causation is up to your lawyer. This is the kind of issue that differentiates one law office from another. Ultimately only your lawyer will be able to successfully choose the expert medical witnesses who can credibly support your case, and cross examine the expert witnesses retained by your employer's insurance company. Concessions gained from employer's expert witnesses at their depositions can determine the outcome of an entire case. So can damaging admissions made by your own expert witness or treating doctor at their deposition. 4. Not a Work-Related Accident As explained under number 1 above, just because it happened at work doesn't mean it's a work-related accident. If it's not a work-related accident, your job is not responsible for work comp benefits. For example, slipping and falling at work may not be work-related unless proven that there was something unique about your job duties that played a role in your slipping. Having a heart attack or stroke at work may not be work-related unless proven that something about your work duties played a role in causing or triggering the stroke or heart attack. The doctor for the employer is likely to testify that you were a "ticking time bomb" who was just as likely to have a stroke or heart attack outside of work as at work, and it was just random chance that caused you to pass out while getting yelled at by your supervisor. Being diagnosed with hyper-allergic reactions to everything as a result of alleged "mold" exposure also might not be work-related, because the employer's expert doctors are likely to testify that mold is everywhere, outside and inside your house as well as your workplace, and that there is nothing unique about your recently flooded office that put you at increased risk of contracting illness. 5. You're Not Permanently Disabled! Even if everyone agrees you suffered a work-related injury, the extent to which you are permanently injured can be disputed. Some conditions - even those requiring surgery, which are extremely painful, are worth $0! Hernias, for example, repaired surgically and without implantation of any mesh, may be worth just the lost time and medical bills. The injured worker will receive no compensation for the injury itself. Back strains and sprains may be worth $0, or close to it. As explained above at , the work comp system in Illinois does not compensate for pain or suffering or loss of enjoyment. 10. What if my job treats me unfair? ↑ A: This is not work comp. You may have a claim under a different body of law relating to discrimination. But There is no remedy in work comp for unfair or disrespectful treatment. That said, it is against the law for an employer to discriminate against or retaliate against an employee who has exercised their rights under the Workers Compensation Act. Section 4(h) of the Act says: "It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act. It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act. But so what? There is no specific remedy for the worker, or dollar amount, associated with proving unlawful retaliation. Instead, all the Act says, at Section 26, is that: "Any wilful neglect, refusal or failure to do the things required to be done by any section, clause or provision of this Act, on the part of the persons herein required to do them, or any violation of any of the provisions or requirements hereof, or any attempt to obstruct or interfere with any court officer, or any other person charged with the duty of administering or enforcing this Act, is a petty offense." This doesn't help the injured worker much. However, there are penalties that benefit the injured employee if the employer or their insurance company (1) unreasonably pays benefits that are obviously due for more than 14 days without any explanation. Also, if an employer (2) refuses in bad faith to pay benefits due. These penalties are applied very sparingly by the work comp arbitrators and Commission. The Section 19(l) Late Penalty If shown that there was no basis for paying benefits that are due late, then a penalty of $30 per day accrues for a maximum of 334 days (up to $10,000). This is payable to the employee (an attorney would rightfully take 20% of this sum for proving your entitlement to the penalty). The Section 19(k) 50% Penalty If an employer is not just late, but proven to have refused to pay benefits due in bad faith, then the employee may be awarded an additional penalty equal to 50% of the amount that was wrongfully withheld by the employer. The Section 16 Attorney Fees Also if an employer is not just late, but proven to have refused to pay benefits due in bad faith, then the employee may be awarded an additional penalty equal to 20% of the amount that was wrongfully withheld by the employer, in order to cover the worker's 20% statutory attorney fees. In other words, even if your employer fights your case for five years and ultimately loses, they are likely to not have to pay your attorney fees; you still have to pay them. This is why employers don't mind dragging out cases forever.