INTRODUCTION

If you are hurt at work, the Illinois Workers' Compensation Act sets forth your rights and benefits. Understanding your workers' compensation rights and benefit is important. When others deny or limit these rights and benefits you must decide either to fight for - or forget them. The mere fact that the law gives you certain rights does not mean others will recognize them.

While our website highlights those rights and benefits, it is impossible to cover every legal situation. The result in each case can vary depending on the importance one attaches to various facts. Recognizing these limitations, we hope you will find our website a helpful reference source. We will be happy, without charge, to answer any of your questions.

Muelhausen and Stefani


1. HOW DOES THE WORKERS' COMPENSATION SYSTEM WORK?
Ordinarily, if you are hurt at work, a claim is filed with the Illinois Workers' Compensation Commission, whose members are appointed by the Governor. There are two stages of proceedings before the Illinois Workers' Compensation Commission: arbitration and review. If the parties cannot voluntarily settle, then an arbitrator is assigned to hear both sides. If either party is dissatisfied with the arbitrator's decision, a review (appeal) to the Commission is allowed. A panel of at least three Commissioners will review the Arbitrator's decision. In most cases, that is the extent of any hearings. However, if a party is still dissatisfied, there are provisions to appeal to the Circuit Court of the county where the accident occurred and, thereafter, to the Illinois Appellate and Supreme Court.

2. IS THE FILING OF A WORKERS' COMPENSATION CLAIM A PROTECTED RIGHT?
The Act provides:

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 his or her exercise of his or her rights or remedies granted to him or her by this Act.

3. WHEN MUST YOU FILE YOUR CLAIM?
Your claim must be filed with the Illinois Workers' Compensation Commission within three years of the date of accident or within two years of the last payment of compensation, whichever is later. Payment of medical bills by your employer has been found to be payment of compensation for purposes of extending the time to file your claim. If your injury resulted from repeated stresses associated with your employment, rather than a single incident, then your claim must be filed within three years of the date when you, as a reasonable person, would know of the injury and that it was caused by your employment. Filing the claim with your employer or your employer's insurance company, or their service or adjustment company is not enough.

The fact that you are under medical care does not extend the time for filing. The fact that your employer has paid group sickness and accident insurance benefits rather than workers' compensation benefits can, under certain circumstances, extend the time for filing; however, there are a number of exceptions and reliance on this is risky. If your employer or your employer's insurance company, or their service or adjustment company, misleads you so that you do not file on time, courts may stop the employer from objecting to the late filling of your claim. If your employer settles with you without obtaining approval of the Illinois Workers' Compensation Commission, then you may still be able to file a claim.

While you have a fairly reasonable amount of time within which to file your claim, an early filing is in your best interest. The Illinois legislature can, at any time, shorten your filing time. An early filing guarantees that you will not overlook the date by which your claim must be filed. Further, important witnesses and records often disappear if one waits too long and intervening accidents, injuries or health conditions may unnecessarily complicate your case.

4. WHERE WILL MY CASE BE HEARD?
If your case is not voluntarily settled, the State will appoint an arbitrator to hear your case near the area where the accident occurred.

5. WHAT BENEFITS ARE PROVIDED BY THE ILLINOIS WORKERS' COMPENSATION ACT?

When you are injured by an accident at work you are entitled to:

1. Immediate and continuing medical attention including rehabilitation or retraining;
2. Compensation for your period of time lost from work;
3. Compensation for permanent impairment resulting from the industrial accident.

The employer individually or through its insurance company or service or adjustment company pays for these benefits and not the employee. You must be restored as completely as possible to good health and be well compensated for any remaining disability.

Workers' Compensation benefits are not taxable under State or Federal Law and need not be reported as income on tax returns.

6. WHAT IS AN ACCIDENT?
An accident is any unexpected event or result arising out of and in the course of employment. If you lift something and injure your back or fall and break your leg, the accident is easily identified. While not as obvious, a hearing loss due to loud noise levels, heart attacks, carpal tunnel syndrome or similar conditions following repeated physical stress are also accidental. Psychological injuries following a severe, identifiable mental stress are often considered accidents as well.

An injury is accidental even if it aggravates a preexisting condition or injury. This is true whether or not compensation for the preexisting injury or condition or injury has been previously paid.

7. IS COMPENSATION PAYABLE WHERE THE ACCIDENT AGGRAVATES A PREEXISTING CONDITION?
Except for hearing loss claims, (see Question 19 for Compensation Payable for Hearing Loss?) where an employee aggravates or reinjures a preexisting condition, he has all the rights under the law as though he had no previous condition or injury.

8. WHAT ACCIDENTS ARE COMPENSABLE?
All accidents which arise out of and in the course of your employment are compensable. Such accidents are compensable regardless of who is at fault. An obvious example is an accident, which occurs due to performance of your regular work duties.

A few examples of less recognized, but usually compensable accidents, include accidents while engaged in reasonably expected conduct, due to hazards on company-owned, maintained or controlled property. Circumstances that are also considered accidents are those which occur at company-sponsored sporting, social or recreational events which you are required to attend, accidents while carrying out a mission at your employer's direction, accidental injuries due to work-related fights if you are not the aggressor, horseplay accidents at work if you are the victim, and lunch and break time accidents.

9. WHAT NOTICE SHOULD BE GIVEN TO YOUR EMPLOYER WHEN AN ACCIDENT OCCURS?
Your employer should be notified of the accident as soon as it occurs even though the law allows you forty-five (45) days to do so. It is best to notify your employer immediately as this will avoid a dispute which could delay payment of benefits.

Notification of the accident must be given to a company foreman, superintendent, nurse or other management person in charge. Notice of the accident to a co-employee or your union is not notice to your employer. Notice can be given orally or in writing.

Failure to notify your employer may result in the denial of, or delay in the payment of benefits.

Your notice may prompt a call from your employer or their insurance carrier, or their service or adjustment company seeking a recorded or signed statement. They often represent that a statement is required if they are to pay lost time or medical benefits. Such a statement is not legally required and cannot be compelled. The employer should have sufficient information through your notice, the employer's records and medical reports. When a statement is insisted on, it is usually an indication that you are in need of legal advice. More often than not, they are looking to confirm some specific fact or circumstances which will allow them to delay and dispute your claim.

10. WHAT MEDICAL CARE AM I ENTITLED TO?
Medical care starts with first aid. It continues with such care as is required by the nature of the injury. The settlement of your case will customarily release your employer from their obligation to pay for further medical care. However, where needed, there are legal means to keep your right to paid medical care open for the remainder of your life.

11. CAN THE EMPLOYEE CHOOSE THE TREATING DOCTOR OR HOSPITAL?
Yes, but there are limits. The employee must choose carefully so that he or she does not end up becoming personally responsible for medical bills.

The employer may create a preferred provider program (PPP) approved by the Department of Insurance. If it does, it must inform the employee in writing of this program.

The employee may decline participation in the PPP at any time by sending the employer a written statement. If the employee declines participation, it counts as one of the two choices of medical providers.

If the employee declines participation in the PPP, the employee may choose any doctor or hospital, and go to any doctor to whom the employee is referred by that provider. If the employee wishes to see another chain of providers, however, the employer must approve.

If the employer does not have an approved PPP, the employee may choose another doctor or hospital, and again go to any doctor to whom the employee is referred by the provider.

First aid and emergency care are not considered to be one of the employee's two choices. Nonemergency care obtained before the employee reports the injury to the employer does count as one of the two choices.

For injuries occurring prior to June 28, 2011, the employer created PPP does not apply. For those injuries, you have the right to choose your first doctor. If you are dissatisfied with that choice, you can choose a second doctor. The use of any health care provider in the chain of referrals from your chosen doctor is not another choice.

12. WHAT VOCATIONAL REHABILITATION SERVICES ARE AVAILABLE?
If your injury does not permit you to return to your former employment activities or other suitable employment, you are entitled to vocational rehabilitation services. These are designed to return you to work hopefully at an equivalent hourly rate of pay or salary. This can include assistance in locating work, additional technical training or schooling. Insurance companies are often reluctant to involve themselves in this aspect of your claim and instead offer what they call "medical management." Medical management amounts to a company nurse or other specialist seeing you at your home or accompanying you to doctor visits. Your participation in medical management is not required by the Illinois Workers' Compensation Act and your benefits may not be properly terminated if you refuse such assistance.

When it becomes apparent that the employee will be unable to resume his regular duties or when the total period of lost time exceeds 120 continuous days, whichever occurs first, the employer or their representative, in consultation with an injured employee and the employee's representative, if any, must prepare a written assessment of the course of medical care and any rehabilitation required to return the injured worker to his employment. Because these meetings often involve an interview with an employer's representative, it is best that you be completely advised and preferably represented by your attorney at the time of such an interview.

Although the law does not grant employers or their insurance companies that right, they often, if not always, will take the position that any vocational rehabilitation will be provided solely through their representatives. A dispute as to whether you work with their representatives or those of your own choosing is a signal that you are in need of legal advice.

The Illinois Workers' Compensation Act requires an employer to notify each injured employee of his rights to rehabilitation services and of the locations of available public rehabilitation centers or other rehabilitation services of which the employer has knowledge. One such agency, The Illinois Department of Rehabilitation (DORS), has offices throughout Illinois.

13. WHEN DO LOST TIME BENEFITS START?
There is a waiting period of three (3) working days. Compensation is payable beginning on the next day and continues as long as you are unable to work. After fourteen (14) calendar days of lost time, you are entitled to receive payment for all working days and calendar days not paid during the waiting period. Illinois Workers' Compensation Commission rules require that payment be made within fourteen (14) days of an employer's knowledge of your inability to work.

14. HOW LONG DO LOST TIME BENEFITS CONTINUE?
There is no time limit on the payment of lost time benefits. They continue as long as you are temporarily unable to work. If you are released for work with temporary physical restrictions, your compensation payments should continue unless your employer can return you to work within those physical restrictions.

If your employer returns you to work with temporary physical restrictions at a lesser pay, you are then entitled to temporary partial disability benefits equal to two-thirds (2/3) of the difference between the average amount that you would be able to earn in the full performance of your duties in the occupation in which you were engaged at the time of your accident and the gross amount you are earning in the modified job provided by your employer. For injuries occurring prior to June 28, 2011, temporary partial disability is based on the net amount earned in the modified job.

15. HOW ARE LOST TIME BENEFITS CALCULATED?
Lost time benefits are based on two-thirds (2/3) of your average weekly wage earned in the fifty-two (52) weeks prior to the date of injury ending with the last day of your last full pay period immediately preceding the date of injury. Please note, your weekly lost time rate is subject to maximum and minimum amounts established by the State of Illinois.

16. FOR PURPOSES OF LOST TIME BENEFITS, HOW DO I DETERMINE MY AVERAGE WEEKLY WAGE?
Your annual wage includes your regular pay, base earnings from mandatory overtime and earnings from a second job if the employer, for whom you were working when injured, had knowledge of your other employment. Your average weekly wage is figured as follows:

• If you worked all of the 52 weeks prior to the date of injury, the average weekly wage is equal to your actual earnings in the employment in which you were working at the time of the injury during the period of 52 weeks ending with the last day of your last full pay period immediately preceding the date of injury. In other words, the average weekly wage equals the total wages for the 52 weeks divided by 52.

• If you lost 5 or more days during the 52 weeks before the injury, whether or not the lost days occurred in the same week, the earnings for the remainder of the 52 weeks is divided by the number of weeks and parts thereof remaining after the time so lost has been deducted. Using this method, the total earnings for the period before the injury will always be divided by a number smaller than 52.

• If you have been working for your employer for less than one year prior to the date of accident, the earnings during employment are divided by the number of weeks and parts thereof during which you actually earned wages.

• If, due to the shortness or the casual terms of your employment, it is impractical to compute your average weekly wage by the above methods, then regard shall be had to the average weekly wage which would have been earned by a person working for the same employer in the same grade and doing the same work for the prior 52 weeks.

The correct calculation of your average weekly wage directly affects the amount of compensation you will receive for your injury and is the subject of frequent disputes with the employer. Therefore, if you have questions as to whether you are receiving lost time benefits in the proper amount, you should consult with our firm. Any dispute as to your weekly wages indicates the need for legal assistance.

17. IF INJURED WHILE WORKING AS A MEMBER OR TRAINEE OF A VOLUNTEER FIREMAN, POLICEMAN OR CIVIL DEFENSE UNIT, WHAT RATE OF COMPENSATION DO I RECEIVE?
Your weekly compensation benefit will be based on your average weekly wage in your regular employment.

18. AFTER PAYMENT OF LOST TIME AND MEDICAL BENEFITS, AM I ENTITLED TO ADDITIONAL PAYMENTS FOR MY INJURY?
Yes, in most cases you are entitled to a monetary recovery for the permanent disability resulting from your injury. The evaluation of permanent disability involves a thorough review of all pertinent medical records and reports pertaining to your injury, the final recovery and prognosis for the future. Therefore, it is important that medical terminology relating to your injury be understood and properly evaluated.

Permanent disability benefits can involve permanent partial disability benefits, wage differential benefits, or permanent total disability benefits. Permanent partial disability benefits generally apply when you are able to return to your chosen occupation at a similar wage. In cases where you are unable to return to your prior chosen occupation, wage differential and permanent total disability benefits may apply.

The evaluation of permanent disability benefits involves many factors. You should not rely on the insurance company or their service or adjustment company to fairly evaluate your disability. Remember, they are in the business of making a profit. The less paid to you, the greater the profit to them.

19. IS COMPENSATION PAYABLE FOR LOSS OF HEARING?
Compensation is payable where the injury results in partial or total loss of hearing in one or both ears.

A hearing loss affecting frequency tones above 3000 cycles per second is not considered disabling. A doctor or audiologist can tell you if your loss is above or below 3000 cycles per second. Your employer is not responsible for any hearing loss previously compensated or which existed on July 1, 1975.

While there are other standards applicable to hearing losses, they require a consideration of too many individual facts as to be easily stated in any meaningful way.

20. IS SCARRING COMPENSABLE?
Compensation is payable for serious and permanent disfigurement to the head, face, neck, arm, hand, leg below the knee, or body scars above the chest line.

Some scarring in a compensable or non-compensable area may be compensated, if serious enough, on a disability basis. This can result in a greater monetary benefit.

21. WHAT IF MY INJURY PREVENTS ME FROM RETURNING TO MY FORMER LINE OF WORK?
If other suitable work is not available, then you may be entitled to receive whatever treatment, instruction and training that is necessary for your physical, mental or vocational rehabilitation. During such time, you should also receive all maintenance costs and expenses incidental to your rehabilitation. Ordinarily lost time benefits continue to be paid. If you must return to a lesser paying job, then you may be entitled to receive certain wage loss benefits. For injuries that occur before September 1, 2011, wage differential benefits shall be paid for the duration of the disability. For injuries that occur on or after September 1, 2011, benefits shall be paid for five years after the date of the award or until the employee reaches age 67, whichever is later.

If you are unable to return to gainful employment as a result of your work injury, you may be entitled to permanent total disability benefits. This amounts to a lifetime weekly benefit. The inability to return to your former line of work, as a result of your work injury, indicates a need for legal assistance.

22. WHAT BENEFITS ARE PAYABLE WHEN THE ACCIDENT RESULTS IN TOTAL DISABILITY OR DEATH?
Total disability or death benefits are based on the same formula as described in Question 15 Above, "For Purposes of Lost Time Benefits How Do I determine My Average Weekly Wage?" These benefits are subject to certain maximum and minimum amounts.

Total disability benefits are payable for life. For accidents occurring prior to February 1, 2006, the death benefits with some limitations as covered in the next section, are generally payable for twenty (20) years or until $250,000.00 has been paid, whichever is greater. For accidents on or after February 1, 2006, death benefits are generally payable for twenty-five (25) years or until $500,000.00 has been paid, whichever is greater.

23. TO WHOM ARE DEATH BENEFITS PAYABLE?
Where an accident results in death and there is no surviving spouse or dependent child, benefits are payable under different circumstances to relatives of the deceased. As this does not occur often and the rights of various relatives depend on a number of facts, we will concern ourselves only with the rights of a surviving spouse and dependent children.

For purposes of benefits, a surviving spouse is a spouse legally married to the deceased at the time of death. If the spouse is separated, but not divorced, the marriage still legally exists.

A dependent child is a child eighteen (18) years of age or under twenty-five (25) years of age if enrolled in an accredited educational institution or, any child, regardless of age, who is physically or mentally incapacitated at the time of the parent's death.

A dependent child includes a child born after death, a child legally adopted, a child whom the deceased employee was legally obligated to support or a child over whom the employee acted as a parent, even though that child may not have been the deceased's child by birth or adoption.

If there are surviving dependents children not residing with the surviving spouse, the compensation payment is divided equally between all beneficiaries.

The remarriage of a surviving spouse may cause the termination of benefits by a lump sum equal to two (2) years of benefits. If you are considering remarriage, you should consult our firm to determine the applicable law.

Payments to a dependent child continue until such child reaches eighteen (18) years of age or if enrolled in an accredited educational institution, until twenty-five (25) years of age. A child less than eighteen (18) years of age at the time of the parent's death, however, receives not less than six years of benefits even if those payments continue after age eighteen (18).

For accidents occurring prior to February 1, 2006, a $4,200.00 burial benefit is payable. For accidents occurring on or after February 1, 2006, an $8,000.00 burial benefit is payable. In the event the employee survives the accident for a period of time, then all medical expenses and lost time benefits are payable in addition to all death benefits.

In some rare cases, an employer who "elects" to obtain life insurance policies for his employee, can also "elect" to apply such life insurance benefits in total or in partial payment of death benefits. If such a credit is claimed, you should consult with our firm.

24. DOES THE FILING FOR GROUP BENEFITS STOP AN EMPLOYEE FROM ALSO FILING FOR WORKERS' COMPENSATION BENEFITS FOR THE SAME CONDITION?
A workers' compensation claim is often more difficult if you have mistakenly applied for group sickness and accident benefits. You may have signed forms indicating that the injury was not work related. This can often be overcome even though you have applied for or received other benefits. If you were injured at work you should file a workers' compensation claim.

25. SHOULD AN EMPLOYEE FILE FOR BOTH WORKERS' COMPENSATION AND SOCIAL SECURITY DISABILITY BENEFITS?
You should file for social security disability benefits if you have been disabled from work for more than four months and believe you may be disabled for a year or more. The settlement of your workers' compensation claim may require the establishment of a Medicare Set Aside Trust Fund and could affect your social security disability benefits. You should consult our firm concerning this matter.

26. WHAT IF A WORKERS' COMPENSATION CLAIM IS TRIED?
If your claim is tried, your right to future medical benefits remains open for your life, and if your condition gets worse, you may return to the Illinois Workers' Compensation Commission within thirty (30) months from the date the initial award becomes final to claim additional permanent disability benefits. For accidents occurring on or after February 1, 2006, which result in a wage differential award, the time to claim additional disability benefits is increased from thirty (30) to sixty (60) months.

If you settle your claim and that settlement is approved by the Illinois Workers' Compensation Commission, your rights to future medical benefits are ordinarily terminated. You should contact our firm if these rights are important to you.

27. MAY A WORKER DRAW BOTH UNEMPLOYMENT AND WORKERS' COMPENSATION BENEFITS?
When a worker is not being paid workers' compensation benefits, either because the claim is disputed or workers' compensation benefits have been terminated, a worker may be eligible for unemployment benefits. If the employee has a return to work slip permitting restricted or light duties and the employer cannot accommodate these or has terminated the worker's employment, then the unemployment bureau may pay unemployment benefits as long as the worker is seeking work within his restrictions. In that case, should you be asked on an unemployment form whether you are ready, willing and able to resume work, the answer should be: "Yes, within my restrictions." Should the worker later recover workers' compensation benefits, the law requires that, to the extent workers' compensation is paid for the same weeks, that unemployment benefits be repaid.

28. CAN A WORK INJURY ENTITLE ME TO BENEFITS OTHER THAN STATE WORKERS' COMPENSATION BENEFITS?
Where your injury is caused or contributed to by circumstances created by someone other than your employer or co-employee, you can bring a court action to recover damages from other responsible parties. In such cases it is necessary to prove someone other than your employer or a co-employee was at fault. Examples of this would include negligence cases, cases against manufacturers whose products caused your injury or physicians whose malpractice has injured you further. There are other examples too numerous to mention. Such cases should be investigated early to preserve evidence and insure that all legal notices and filings are filed within the time required by law.

29. DO I NEED AN ATTORNEY?
We strongly believe it is in your best interest to retain an attorney experienced in the handling of workers' compensation cases. Your employer will be represented by such an attorney or other experienced professionals.

Our firm strives to obtain the best monetary recovery for our clients. You should not rely on your employer, their insurance company, or service or adjustment company, to fairly and completely advise you. You need to remember that every dollar spent on benefits reduces their profitability. If a workers' compensation attorney obtains a recovery for your injury either by trial or settlement, a fee of 20% of that recovery is charged. If there is no recovery, there is no fee. There is no charge for an initial consultation with our firm.

     
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