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Illinois Workers' Compensation Rights

A Summary of the Rights and Benefits Available to Injured Workers Under Illinois Law

Morici, Figlioli & Associates concentrates its practice in the areas of plaintiff's personal injury and Workers' Compensation law. Our practice includes claims based upon the negligence of general contractors, owners, and others, responsible for promoting safety on construction sites as well as obtaining compensation for the redress of injuries caused by defective products, negligent drivers, and premises liability. The firm is founded upon the principle of aggressively pursuing full and complete compensation for the clients it represents. A significant portion of our practice is devoted to representing construction workers and building tradesmen injured on construction work sites. Headed by two of Illinois' most accomplished practitioners in the areas of plaintiff's personal injury and workers' compensation, the firm brings more than 30 years of attorneys' experience in the handling of injury matters, utilizes state of the art computer software and telephone systems, and is dedicated to expediting the firm clients' matters and providing personal service. Every matter handled by our office is personally supervised by one of the partners. It is our policy to promptly return phone messages ad to remain accessible to our clients at all times.

This handbook is intended to answer the most commonly asked questions of workers who are injured on the job. It is not intended to fully cover all questions relating to injuries suffered by workers. Laws can be complex and subject to change. The information contained in this handbook, although accurate when printed, may become inaccurate over time based upon legislative changes and court decisions.

Any worker who needs information may call our office. We are ready to assist you in every way possible to obtain your benefits and protect all your rights under Illinois law. Our office phone number is (312) 372-9600. Our office is open from 9:00 a.m. to 5:00 p.m. on weekdays and by appointment on Saturdays. We also have a sophisticated 24-hour voice messaging system so that you can always communicate with your lawyer. In addition, for emergency purposes after hours, you can always talk to a Morici, Figlioli & Associates attorney through our 24-hour pager at (312) 216-0487.

A. OVERVIEW OF RIGHTS UNDER WORKERS' COMPENSATION

What Is Workers' Compensation?

Workers' compensation is a system of benefits provided for workers who sustain job-related injuries or diseases. The allowable benefits are established within the framework set by the Illinois Workers' Compensation Act and the Illinois Occupational Diseases Act. Generally, three areas of benefits are provided for workers who are injured on the job: (1) payment of medical bills; (2) compensation for time lost from work; and (3) compensation for the permanent effects of an injury.

Should I Consult With An Attorney?

It is important to consult with lawyers experienced in workers' compensation cases and "third-party" cases so that a proper and complete approach is taken with your case. The people representing your employer and its insurance company are well experienced in handling claims. Without proper representation, you could be at a severe disadvantage when trying to effectively deal with the employer-insurance oriented people. In addition, you will need a lawyer to determine if you have a third party case as described in Section F, Question 1. The lawyers of Morici, Figlioli & Associates have been representing and protecting the various rights of working men and women for decades.

How Much Can My Attorney Charge Me For Handling My Workers' Compensation Claim?

Generally, and in the ordinary case, your attorney is limited to 20% of the gross amount recovered. However, there are some exceptional instances where the Industrial Commission will make a specific determination as to the amount of fees to which the attorney is entitled.

Please remember, at Morici, Figlioli & Associates you can always have an obligation-free initial consultation to evaluate your case and discuss fees.

B. PARTIES INVOLVED IN A WORKERS' COMPENSATION CASE

Who Is Covered Under Workers' Compensation?

Generally speaking, most workers in Illinois are covered under the Illinois Workers' Compensation Act for injuries suffered on the job. There are some exceptions, but the law certainly includes all members of the building trades.

Who Provides The Benefits?

Under the law, it is the responsibility of the employer to provide workers' compensation benefits. However, this may be accomplished in different ways. The employer may pay the benefits directly, or act through a service adjustment company, or, quite often, an employer has obtained workers' compensation insurance and the insurance company handles everything.

What Is Considered An Accident?

An accident may be considered an event or circumstance that brings about an injury for which benefits are payable. Usually (but not always), a single, definable occurrence constitutes an accident.

If I Am Injured, What Do I Do?

It is important to notify your employer that you were injured at work. Under the law, you have 45 days to report the accident to your employer. However, it is always best to report the accident as quickly as possible. You may report the accident to your employer or to one of your employer's supervisory personnel. You should tell your employer how you were injured on the job, when you were injured on the job, and where you were injured on the job.

C. MEDICAL BENEFITS

What Medical Benefits Am I Entitled To Under The Compensation Act?

You should insist upon prompt medical attention for your injuries. Under Illinois law, you have the right to seek medical care from a physician of your choice. This includes the right to treatment from those physicians or health care providers that you may be referred to by your first physician. Under Illinois law, you have the right to obtain a second opinion from another doctor of your choice. When you obtain that second opinion, you also have the right to treat with the physicians to whom you may be referred by that second doctor. This would be your second "chain of referral." The law does not limit the number of doctors that you may see, but it does restrict you to only "chains of referral." (For example, If Dr. A sends you to Dr. B, who send you to Dr. C, you will have seen three doctors, but you would still be within one "chain of referral"). Generally, your employer will not have to pay medical bills from any doctors other than the two physicians you originally selected and the physicians within the "chain of referral" from those two original physicians.

Although your employer may offer you treatment by a doctor of its choice, you may refuse that referral and continue treatment with your own physician. However, your employer does have the right to have you examined by a physician of its choice to determine if you are entitled to continuing weekly workers' compensation benefits. A section of the Illinois Workers' Compensation Act provides your employer the right to obtain this type of evaluation.

The medical bills of your doctors should be paid directly by your employer or under the workers' compensation insurance policy of your employer. They should not be paid under any personal, union or other group insurance plan. If you do pay for the services of a medical provider by cash or personal check, you should be reimbursed by your employer or the workers' compensation insurance carrier.

How Long Am I Entitled To Medical Attention?

If an Application for Adjustment of Claim is filed with the Illinois Industrial Commission, you will keep the question of a right to future medical care open. If you do not file an Application for Adjustment of Claim with the Illinois Industrial Commission, then your right to medical care exists for only three years following the date of accident. If a claim is not properly and timely filed, then all rights under the Workers' Compensation Act, (including medical rights) are extinguished after the three-year period. This period might be longer under special circumstances. ( See Section G, Question 2.)

However, your right to future medical benefits can vary even if a claim is filed. If you file a workers' compensation claim with the Illinois Industrial Commission and the claim is later settled, frequently the settlement language will set forth that you are giving up all future medical rights under the Workers' Compensation Act. You will not be able to claim future medical expenses against your employer if your medical rights are terminated in a settlement contract. In exceptional situation, a settlement may provide for extension of medical rights under the Workers' Compensation Act.

However, if an Application for Adjustment of Claim is filed with the Illinois Industrial Commission, when your case is presented at a Hearing, and you receive an award, then your medical rights will remain open for an indefinite period of time. However, the law places certain restrictions upon your open medical rights and if it becomes necessary to pursue those rights, you must have evidence to establish three things: (1) the medical treatment now claimed is related to the original job injury; (2) the medical treatment is reasonable and necessary; and (3) the medical cost is usual and customary.

Must The Employee's Doctor Send Medical Reports To The Employer?

Yes. The Workers' Compensation Act provides that the employer has a right to obtain medical records from the treating doctor, and upon written request, the treating doctor must provide full and complete reports to the employer. These reports are important in that they inform the employer that the employee is unable to return to work. The employer must have these reports in order to authorize payment weekly temporary total disability benefits.

D. LOST TIME BENEFITS

What Benefits Am I Entitled To When I Am Off Work?

When a worker is disabled and cannot return to his or her job, that person is entitled to receive weekly benefits under the Workers' Compensation Act. These benefits are referred to as TTD (Temporary Total Disability) benefits. They are paid at the rate of 2/3 of the employee's weekly wages averaged throughout the year before the accident. These benefits have certain minimum and maximum amounts which are set by the State of Illinois.

No benefits are paid for the first year three days lost from work unless the lost time continues for 14 or more days after the date of injury.

If temporary total disability benefits are not paid within 14 days, and the employer cannot justify the delay in payment, the employer may be subject to penalties under the Workers' Compensation Act.

Are Workers' Compensation Benefits Subject To Income Tax?

Generally, the basic workers' compensation benefits are not subject to state or federal income tax

What Is The Maximum TTD Benefit?

Temporary total disability benefits are those benefits paid while the injured worker is recovering from his injuries. These benefits are paid until the injured worker has been released to return to work or has completed a vocational rehabilitation program. Certain minimum and maximum amounts are computed by the State of Illinois.

What If An Employee Works At Two Jobs?

This is an important consideration for calculating the worker's average weekly wage. (See Section D, Question 1). The employee's temporary total disability rate is based upon a percentage of his average weekly wage. The average weekly wage will be based on the gross income from both jobs if the employer was aware of the employee's second employment before the accident occurred.

What If A Volunteer Firefighter, Volunteer Policeman Or A Civil Defense Member Is Injured?

In these particular cases, the temporary total disability rate will be based upon the average weekly wage at the employee's regular job.

E. PERMANENT DISABILITY/DISFIGUREMENT BENEFITS

What Other Type Of Benefits Am I Entitled To After I Return To Work?

An employee may be entitled to recovery for the physical impairment to a part of the body which was injured in the work-related accident. This is a different type of recovery from that discussed in Section E, Question 9. This type of recovery for physical impairment to a specific part of the body is sometimes referred to as a scheduled recovery or a specific loss recovery. If you sustain an injury to a part of your body, such as the hand, arm or foot, you may be entitled to an award or settlement based upon the permanent partial disability which you have sustained to that part of your body. This disability is based upon a percentage loss of use of the part of the body that was injured.

Although the Workers' Compensation Act sets forth a framework for computing this type of disability, it must be emphasized that the particular individual circumstances surrounding an injury are significant factors in determining the proper compensation which the injured worker should receive as a result of this injury. Factors such as occupation, age, inability to engage in certain kinds of work or activities, skill, training, pain, stiffness, weakness, spasms, limitation of motion are just some of the factors that must be considered in determining the proper compensation for a specific loss recovery. Therefore, it is recommended that an attorney is consulted for an opinion regarding the particular benefits to which you are entitled because of injury.

If the injury causes disfigurement to the head, face, neck, arms, legs (below the knees) or chest (above the armpits), an employee is entitled to compensation for this disfigurement. If this disfigurement is permanent, you may be entitled to benefits, not to exceed 150 weeks, at the permanent partial disability rate. (See Section E, Question 2.) Again, the individual circumstances become important because the benefits for disfigurement are sometimes considered as an alternative to a scheduled award and under other circumstances, the benefits are in addition to the physical impairment which is discussed above as a scheduled award or a specific loss.

What Is The Amount Of Benefits That I Can Receive Under Permanent Partial Disability For Cases Of Disfigurement And Specific Loss Under The Scheduled Awards Of The Compensation Act?

The Maximum amount which the worker is entitled to is 60% of his average weekly wage. As to this type of disability payment, the State of Illinois publishes maximum rates and also certain minimum rates.

What If I Already Had Total Loss Of Use Of An Eye Or A Member (I.E., Leg Or Arm), And I Am Injured On The Job, And I Now Sustain The Total Loss Of A Second Eye Or Member?

In this particular situation, you are entitled to total permanent disability benefits for life. These benefits are paid at the temporary total disability rate referred to in Section D, Question 1. Your employer must pay you for the total loss of use of the second eye or member as set forth in the schedule within the Workers' Compensation Act. After the payments have been completed as required for the 100% loss of use of the eye or member, then the State of Illinois takes over, and you are paid total permanent disability benefits for life through a statutorily created Second Injury Fund. These benefits should continue whether or not you are still able to work. This is commonly called a "statutory" total permanent disability.

Is A Loss Of Hearing Compensable?

Yes. If permanent hearing loss comes from a sudden trauma or an explosion, compensation is determined by specific provisions in the Workers' Compensation Act. If Hearing loss came from prolonged exposure to noise, the injured worker may also be entitled to benefits under the Act. Int hat case, however, you must show exposure to defined levels of noise over set periods of time.

What If I Am Injured On The Job And The Industrial Commission Awarded Me Total Permanent Disability And Later On I Recover Enough To Go Back To Work?

Unless you had a "statutory" total permanent disability (see Section E, Question 3), if you recover sufficiently to return to work, your employer may file a petition for an order terminating your total permanent disability benefits. You may still be able to seek compensation for any remaining partial disability.

What Type Of Death Benefits Are Provided For Under The Workers' Compensation Act?

The Illinois Workers' Compensation Act provides benefits to certain surviving relatives and dependents of employees whose death is work-related. The survivors must fall into one of the four classes: (1) widows, widowers and certain children of the employee (under 18, or under 25, if a full-time student an accredited educational institution or a child, regardless of age, who is physically or mentally incapacitated); (2) parents totally dependent upon the earnings of the employee; (3) partially dependent children who otherwise do not meet the requirements above and partially dependent parents who do not meet the requirements above; and (4) grandparents and grandchildren who are 50 percent or more dependent upon the earnings of the deceased employee.

The benefits payable are based on 2/3 of the employee's average weekly wage with certain minimum and maximum benefits set forth in the Act. The total amount to be paid to entitled dependents is $250,000 (paid on a weekly basis) or 20 years of benefits (paid on a weekly basis) whichever is greater. (For example, if the injured worker was earning $600 per week, then the death benefit payable to his widow or other dependents would amount to $400 per week. This would result in a total payment of $416,000 over 20 years, rather than the $250,000).

If the surviving spouse remarries, the spouse may then be limited to a lump sum payment equal to two years of compensation benefits.

These death benefits may be supplemented by payments made from the Rate Adjustment Fund.

Can An Employee Be Fired?

The Courts of Illinois have held that an employer cannot fire an employee for pursuing a claim under the Illinois Workers' Compensation Act. If an employer fires an employee for that reason, it may give rise to a separate claim which must be brought in a regular court of law, not the Industrial Commission.

What If I Am Injured, Disabled, And Cannot Return To My Former Job?

The Workers' Compensation Act requires that your employer pay for treatment instruction and training necessary for your physical, mental and vocational rehabilitation. This means that the employer must no only pay for the medical care which you need for treatment of your injuries, it also must provide vocational rehabilitation. In some circumstances, this could require the employer to hire a vocational expert who has experience in assessing the job market for workers who are unable to go back to their former types of work. In other circumstances, vocational rehabilitation could require the employer to retrain the employee for some other occupation. In some special cases, it could mean that the employer should pay for a college education. However, the employee must cooperate in a reasonable rehabilitation program or risk losing his benefits and the employee, in some instances, may even choose his or her own rehabilitation counselor.

What If MyInjury Prevents Me From Returning To My Previous Job And I Return To Work At A Job Making Less Money?

The Workers' Compensation Act protects the injured worker if an injury prevents the worker from returning to his previous job and causes a loss in earnings. When this occurs, a worker must decide if it would be advantageous to pursue a wage loss claim. The act provides that an employee is entitled to 2/3 of the difference between the average amount which he would be able to earn in the full performance of his old job and the average amount which he is earning or able to earn in the full performance of his old job and the average amount which he is earning or able to earn in some suitable new career.

However, once the worker chooses to pursue his recovery under a wage loss theory, he is precluded from recovering under the specific loss or scheduled award provisions of the law which are discussed in Section E, Question 1. A worker cannot recover under both theories. It is recommended that a choice is made only after careful consideration of these alternatives with an attorney experienced in workers' compensation law.

F. ADDITIONAL BENEFITS

If I Am Injured At Work, Do I Have The Right To Sue Anyone In A Court Of Law?

Generally, you cannot sue your employer. In order for you to pursue your rights under the Workers' Compensation Act for a work-related injury, you must proceed before an administrative agency known as the Industrial Commission of Illinois. However, in addition to a workers' compensation case against your employer, you always maintain any right you may have against someone else who may be at fault and potentially contributed to your job-related injury.

You may have heard the term "third-party" cases. That phrase refers to cases in a court of law against people other than your employer. There are times when an on-the-job injury will give rise to a third-party lawsuit.

In particular, workers at construction sites are often injured under circumstances which may create additional rights and remedies (a third-party case) which need prompt attention and protection. Such rights can include, among many others, a lawsuit because an owner or a contractor was negligent, or a manufacturer has responsibilities under products liability law, or someone else negligently operated machinery, vehicles or automobiles, or perhaps even a doctor committed malpractice in the medical treatment rendered.

If I Am On Social Security Disability, May I Also Receive Workers' Compensation Benefits?

Yes. However, there are offset provisions within the Social Security Act which may reduce your Social Security disability benefit if you are also receiving workers' compensation benefits.

G. INDUSTRIAL COMMISSION

Who Administers The Law?

The Illinois Industrial Commission is the state agency responsible for administering and enforcing the compensation law. The Illinois Industrial Commission, similar to a court system, resolves disputes between the parties. These disputes usually involve the employees' claim for benefits and the amount of those benefits. In hearing these claims, the Industrial Commission has two tiers: one ("Arbitration") for the initial hearing to resolve disputes, and the other ("Review") rules on the appeals form Arbitration.

When Must A Claim Be Filed For Injuries With The Industrial Commission?

In order to protect your rights under the Illinois Workers' Compensation Act, an Application for Adjustment of Claim must be filed with the Illinois Industrial Commission. The document must be filed within three years of the date of the accident, or two years from the last date of payment of compensation benefits, whichever date is longer. Special filing requirements apply to occupational disease claims.

If I Do Not File My Claim On Time, But My Employer Has Paid Medical Bills Late, Can I Use The Payment Of Medical Benefits For Extending The Time For Filing?

No. Payment of medical benefits is not considered compensation and does not extend the time for filing.

Do you have further questions about workers' compensation? Morici, Figlioli & Associates would be happy to review your case. Contact us today.

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