1. What is a
work comp case?
A: An injury suffered by an
employee arising out of and in
course of their employment would be covered by
Illinois Workers Compensation Act.
How is a work comp case different from a
personal injury or other civil court case?
comp or occupational disease case is
brought before the Illinois Workers Compensation
Commission, which is an administrative court. This
part of the judicial branch like the regular courts.
arbitrators and commissioners are appointed,
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
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
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
"arbitration." This trial
will determine many or all of
your rights, and is
Sometimes a case will be broken
into more than one trial, with the first trial being
just to determine if you even suffered an injury,
that injury is covered by work comp, or if you are
too disabled to go back to work. The
trial will not be known for several weeks after the
trial, and will come to the attorneys by mail from the
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
compensation benefits. If the injury
arose out of and
in the course of your job, it should
Almost all employers are required to carry workers
insurance that should cover your claim.
something about the employment played a causal
in you being disabled, the Workers
Compensation or Occupational Diseases Acts
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
suffer an injury and disability arising out of and in
course of your job, because of your employer's
negligence, you are not entitled to a jury trial, or
lawsuit. Except where your landlord intentionally
injured you, you cannot recover punitive damages,
and suffering damages, or a "verdict" for millions
dollars. Your employer might even accidentally
without having to pay more than $300,000 to your
family. This is a decision our elected
Springfield made long ago. To assist business
Workers Compensation Act strips employees of
certain rights and remedies they used to have before
enactment of the Act.
the Workers Compensation Act gives employees
too - rights they never would have had without
Act. The Act holds employers accountable to
employees for things that are not the employer's fault,
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
work. Work just has to be
(one of many
causes) for your disability.
work comp trade-off is that employees lose the
to tremendous amounts of money for the
injuries caused by employers' negligence, but gain
right to some compensation for the
arise out of normal work duties. The Act makes
compensation available to many more people for
more conditions than without the Act. There are
probably very few workers who could prove that their
employer's negligence proximately caused their
or disease, so the work comp trade-off is
in employees' favor.
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.
has to be something about the injury that was
by something that is special about your job.
example, falling down stairs at work for no clear
may not be covered as workers comp. We
to prove that there was something about your
that made you more likely to fall down the stairs
if you had just been walking down stairs at your
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
made your trip down the stairs at work different
trip down the stairs somewhere else.
Car accidents on the way to and from work may
not be work comp.
is a rule adopted by the courts in Illinois that
employees from coverage by work comp when
are injured in accidents going to and coming
work. The rationale, according to the courts, is
the "employment" starts and stops when the
employee gets to, and leaves, work. However, if
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,
they are probably protected by work comp.
2. What are
the fees and costs?
A: There is no fee or cost
to see our representation and fee
agreement. You can compare our agreement to the
supplied by the Illinois Workers Compensation
office, like almost all other offices practicing work
in Illinois, gets no fee from your case except if
get you an offer to settle your case that you
accept, and you get money, or we (2) win you an
The fee is 20% of amounts we recover
are advanced by our office, and we become
entitled to recover those costs back from your
settlement or trial award if we are successful.
other words, the costs are going to get
your settlement or award on top of our 20%
include the cost of an examination and
from an expert medical witness we may send
($500 to $1,500), the cost of a report from your
treating doctors if appropriate ($500 to $1,000), the
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
cost of paying that witness for their time spent
testifying and preparing to testify. Finally, the
copy of the transcript of the employer's expert
medical witness is often required, at about $200 to
Other costs would include $20 per subpoena
each of your medical providers for certified copies
medical records, and $1,000 to $3,000 for an
evaluation and report by vocational experts in cases
we try proving you cannot go back to your
regular job because of a work accident or disease.
offer was already made, then our fee is 50% of
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
punitive damages available to victims of work
accidents or occupational diseases. The
comp judges are not allowed to award
compensation based on uncorroborated testimony
disability or chronic pain . If you believe
will come into the trial and convince the judge
should be awarded money because you act
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
requires certain kinds of proof, presented
certain way, in order to recover benefits. As
as the judge may believe you cannot work,
cannot award benefits without solid medical
evidence that is admissible in court.
benefits am I entitled to?
A: If your injury or disease is
proven to have arisen out
in the course of your employment, you may be
entitled to benefits like (This is a non-exhaustive
"Temporary Total Disability" = Missed Work Pay
your doctor says you cannot work at all, or imposes
restrictions that your job cannot accommodate,
you may be entitled to a tax-free benefit equal to
your gross average weekly wage for missed
This is called temporary total disability. It only
applies if you missed more than three days of work.
"Maintenance" = Retraining Pay
cannot go back to your old job because of the
or disease, and that injury or disease was
by the work, then the employer has to pay
you to look for or learn to do a new job for
comparable pay. So this benefit could include the
of training as well as a weekly benefit equal to
your pre-injury gross average weekly wage.
"Temporary Partial Disability" = Wage Differential
short-term basis, if you have to do a different job
recovering from your injury or disease, and that
pays less, the employer may have to pay a benefit
to 2/3 of the difference between your
gross average weekly wage and your current
-injury net weekly wage. This
benefit should continue
you are able to go back to earning your pre-injury
average weekly wage.
"Wage Differential" = Pay Supplement for Life
is like the Temporary Partial Disability, but is
award entered for an indefinite time-period, or
lifetime. Wage differential benefits are meant to
paid monthly for as long as you earn less than you
before a work-related injury. You are to be paid
the difference between what you used to earn
what you earn at the time the award is entered.
get a check every week for the same amount for
rest of your life. Your attorney fees are paid by
lawyer taking every fifth check (20%). Forever.
"Permanent Partial Disability" = Injury Money
is the money you may be awarded if your injury
proven to cause a permanent disability to your
person, or part of one of your "parts" (like your
thumb or foot). Each kind of injury, and each
of your body, has a scheduled number of units
compensation that it is worth. The number of
of compensation in every person's hand is the
but the value of each person's unit of
compensation is different depending on how much
earned in the year before their injury. So a
who makes a lot of money will be
compensated more for the same injury as someone
makes less money. Fair or not, this is the law.
more, if you earn more than a certain amount
year, your benefits are capped by a maximum.
Death Benefits = Payment to Survivors
benefits for a work-related death include
rate amount for burial, plus amounts to
compensate your surviving beneficiaries based on
pre-death earnings and life expectancy at the
of your death.
extent they are "reasonable and necessary"
related to a work-related injury or disease, all
medical bills are to be paid by the employer's
comp insurance. There is no deductible or
pursuant to an amendment to the Workers
Compensation Act in 2006, if your lawyer sends
medical provider a letter containing certain
required information about your work comp case,
medical provider is not allowed to take any
collections actions against you while your case
pending. This may stop harassing calls from
collectors and even prevent marks from being
reported against your credit.
items discussed above are not an exhaustive list.
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
injuries require a ramp, lower counters, a
wheel-chair lift, etc.
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
at trial, or figure out how to introduce proper
of your medical records that will be admissible
trial. They will not pay you what your case is
if you have a very straightforward case that is
"accepted" by your employer's work comp insurance,
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
hire for your workers compensation or
occupational disease case. Make sure they have
to give your case individual attention. No lawyer
ever have only your case, but not all lawyers
trying to handle your case and 500 other ones.
sure the lawyer you want to hire is actually the
who will be doing all the work on your case!
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
back from your lunch break and are not
supposed to run, these are probably not defenses to
claim. Only if you were doing something that
you totally out of your duties for the job does
own foolish / clumsy behavior potentially bar
other words, your employer doesn't need to have
negligent, and you could have been, and this
may result in compensation for your injury.
How much is my case worth?
A: There is no official answer, but
the formulas provided
Workers Compensation Act do provide a
by which we could tell you a range within which
injury's dollar value would fall, if your injury was
compensable. The problem is that many
comp injuries are not accepted as compensable
employers and their insurance companies. This
many cases are not "worth" what you, the
injured person, know your injury to be worth.
matter how grave your injury or disability, you will
awarded any compensation without proving
causal connection between your employment and
injury, and between that injury and your disability.
FOR EXAMPLE: Attorney Silverman's Mom
Consider the work comp case of
mother. She tripped over a student teacher's leg
and fell backwards into a chalkboard, fracturing
left elbow (a distal humerus fracture). She had a
pre-injury gross average weekly wage of $1,060 (this
work comp paid all her medical bills and money
few weeks of lost time, and after a year and a
went by so the injury could stabilize, her doctor
it wasn't going to get any better or worse. She
reached "maximum medical improvement". She
gone back to her regular job making the same or
than before the accident. All that was left to
about was how much the injury was worth.
finally extracted a settlement of $65,000 from the
insurance company, representing 102.17 "weeks" of
permanent partial disability compensation. A whole
worth 253 "weeks" for injuries that happened
February 1, 2006. So 102.17 is 40.38% of the
Each of attorney Silverman's mother's "weeks"
worth 60% of her $1,060 average weekly wage,
$636.15. ($636.15 x 102.17 = $65,000).
way of comparison, if you earned half as much
suffered the exact same injury, your award or
settlement would likely be for 30-40% of an arm
But each of your "weeks" would be worth half
much, or just $318.07 each, because your
average weekly wage was half as much. That means
compensation for the same injury would likely
half as much if you earned half as much.
way of further comparison, if attorney
Silverman's mother had suffered an injury to 40% of
leg, instead of her arm, the value of the claim
be less because a leg is worth only 215 weeks,
compared to 253 for the arm.
percent of the ____ is my injury worth?
lawyer can look up a fairly close range within
your injury would be compensated if the case
won at trial. Attorneys have access to decisions
other cases that can be compared to your own, at
in terms of the medical diagnoses. We
understand that no two injuries are really alike, and
everyone experiences pain and disability
differently. However this is not likely to be
account at trial.
Remember, your case may be worth zero at trial.
may be true even if you were legitimately hurt at
We have seen too many cases where clients
to take our advice or the advice of another
attorney and reject a compromised settlement offer
"insulting" or "a slap in the face" only to lose their
because of some unfortunate omission or
ambiguity in the medical records. After the trial
the employer is not going to still be making that
Some problems with medical records cannot be
Work comp isn't pretty.
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
and your claims proven. Employers and their
insurance companies often take whatever steps they
delay a good claim's trial date. Or, the
employer may appeal your award at trial to avoid
it for a year or more. Just by filing a free
of the work comp trial award, an employer
inject another year of waiting into the process.
employer loses the appeal to the Illinois
Workers Compensation Commission, it can appeal
to the Circuit Court of Cook County. From
the employer can appeal again to the Court of
Appeals. If the employer loses at every step along
way, you still haven't gotten paid, and the only
consequence the employer suffers is interest on your
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
surgery and money compensation appealed
frivolously by employers' attorneys just to delay
payment and pressure employees into a settlement
less than the employee was awarded at trial.
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,
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
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
be given within 45 days after an injury caused by
repetitive work "manifests" itself. The date an
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
or after your repetitive work injury becomes apparent t
to you. Three years and one day is too late, and
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
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
No Causal Connection to Work
Often, employers dispute that
your job played a
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
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
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
before the alleged work injury.
(4) The employer's doctor wrote a report saying
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
least partly from work - seek medical attention very
promptly! Fill out an accident report at work
away. You cannot legally be retaliated against
doing this. You have the right to choose and see
your own doctor for your first visit too. If your
tells you that you have to see their company doctor
first, it is not true. You may want to go see them
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
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
above, just because it
happened at work doesn't mean it's a work-related
accident. If it's not a work-related accident,
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
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
$0, or close to it. As explained above at , the
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
different body of law relating to discrimination.
is no remedy in work comp for unfair or
disrespectful treatment. That said, it
for an employer to discriminate against or
retaliate against an employee who has exercised
rights under the Workers Compensation Act.
Section 4(h) of the Act says:
"It shall be
unlawful for any employer, insurance company
service or adjustment company to interfere with,
coerce an employee in any manner whatsoever in the
exercise of the rights or remedies granted to him or her
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
capacity an employee because of the exercise of his or
rights or remedies granted to him or her by this Act.
so what? There is no specific remedy for the
worker, or dollar amount, associated with proving
unlawful retaliation. Instead, all the Act says,
"Any wilful neglect, refusal or failure to do the things
required to be done by any section, clause or provision
this Act, on the part of the persons herein required to
them, or any violation of any of the provisions or
requirements hereof, or any attempt to obstruct or
with any court officer, or any other person charged with
duty of administering or enforcing this Act, is a petty
help the injured worker much.
there are penalties that benefit the injured
the employer or their insurance company
unreasonably pays benefits that are obviously due
than 14 days without any explanation. Also,
employer (2) refuses in bad faith to pay benefits
These penalties are applied very sparingly by
comp arbitrators and Commission.
The Section 19(l) Late Penalty
that there was no basis for paying benefits
that are due
late, then a penalty of $30 per day accrues
maximum of 334 days (up to $10,000). This is
the employee (an attorney would rightfully
take 20% of
this sum for proving your entitlement to the
The Section 19(k) 50% Penalty
employer is not just late, but proven to have
pay benefits due in bad faith, then the
be awarded an additional penalty
equal to 50%
of the amount that was wrongfully
The Section 16 Attorney Fees
Also if an
employer is not just late, but proven to have
pay benefits due in bad faith, then the
be awarded an additional penalty
equal to 20%
of the amount that was wrongfully
the employer, in order to cover the worker's
statutory attorney fees.
words, even if your employer fights your
for five years and ultimately loses, they are
not have to pay your attorney fees; you
to pay them. This is why employers
dragging out cases forever.