•1. What is Worker's Compensation and why can't I sue my employer?
Worker's Compensation is a "no-fault" system for treatment and compensation of injured workers. Before the turn of the last century there were no Worker's Compensation laws in the United States. The rise of the industrial revolution in the late 1800's exposed workers to machinery and construction projects, including railroad expansion, which resulted in a large number of deaths and serious injuries. The only remedy available was a conventional lawsuit that required the worker to prove negligence on the part of the employer and that the he was not subject to the defenses available to the employer such as; last clear chance, assumption of risk and the requirement that he be completely free from contributory negligence. Needless to say very few suits were successful. In response to the growing carnage and the specter of widows and children left without any support, various states began passing worker's compensation laws. As with any social legislation the laws were a compromise between the interests of the employers and workers. The requirement that the worker prove negligence was removed but the damages available to the injured worker were limited to pay while he was off work, payment of medical bills, and a lump sum of money for the loss of use of the effected body part, which was limited by statute. In return the worker could not sue his employer in regular court but needed only to prove he was injured on the job and his injury was related to something in the workplace. These laws were controversial when passed and remain controversial today.
•2 I've worked for this company a long time and never missed a day. Why are they treating me badly?
Because this is about MONEY, not loyalty. In most companies once you get beyond your immediate supervisors the decisions are made on a monetary basis. This is particularly true for most companies who have no say in how their Worker's Compensation insurer handles a claim. When a business buys insurance from an insurer it wants full coverage, which includes fire, wind, theft and liability coverage along with Worker's Compensation. Worker's Compensation is a no, or low, profit line for most insurers consequently the stingiest adjusters are assigned to the Worker's Comp. Division. Also understand that with most smaller businesses the loss of an employee to injury can really screw up scheduling and their ability to get the job done. In truth we experience more problems with small employers who are unfamiliar with the Worker's Compensation system and tend to let a claim fester before turning it in to their insurance. This further delays treatment and resolution of the claim.
•3. Why do Worker's Compensation claims take so long?
The Worker's Compensation Commission handles worker's Compensation cases. This is a commission set up by laws passed by the legislature. Each case appears on a status call every two months in front of the arbitrator assigned to handle cases in your geographic area. The system is incredibly overloaded. Your case will appear, along with 1500 to 1700 other cases, in front of one arbitrator who generally has six to eight days a month to hear trials. Your case will not fall into "must try" status until it has been on file at least three years. State budgetary limitations, along with heavy lobbying by the Illinois Manufacturers Association, means that there is no chance of the system being expanded with the addition of extra arbitrators any time in the near future. The watchword of this system is frustration.
The second main reason for delay is amount of time it takes for an injury to reach what is
referred to as "maximum medical improvement". This occurs when you doctor tells you that
he has done everything he can for your injury and your condition has reached permanence
•4. Do I have to see the company doctors or can I see my own doctors?
Under the Statute you have the right to be seen by doctors of your own choosing with a very important limitation. You can see two doctors of your own choosing and the referrals from those doctors. For example if you see your family doctor and he/she refers you to a neurologist or orthopedic surgeon you are still considered to be on your first doctor. You can start another chain of referrals with a second doctor and still be all right. Where problems arise is when you see a chiropractor, or other medical provider, outside of the referral chain. This is considered your second choice of doctor and while you can still see a third doctor, your employer will not be required to pay the bills. Any doctor, or provider, that your employer sends you too is not considered your choice and does not count for the two-doctor rule. When the employer sends you to a specific doctor or hospital for treatment this is a different situation than the independent medical exam, which is discussed next.
•5. Why is the insurer sending me to see another doctor? Don't they believe my doctor?
Under section 12 of the Worker's Compensation Act your employer is entitled to have you examined by a doctor of their own choosing. This is referred to as an independent medical examination "IME". They are independent in name only. Insurance companies do not pick physicians who write reports unfavorable to their position in a case. Please remember
THIS IS NOT YOUR DOCTOR! There is no physician-patient relationship and the confidentiality and responsibility for treatment that comes with it. There may be many ways to herniate a disk in your spine including: sneezing, bending over, twisting, coughing and lifting or falling. The IME doctor does not have responsibility for your treatment so any of the reasons for herniating a disk are fair game. You can be sure the fact that you fell ten feet and landed on your behind will not be one of the reasons your spinal disk is herniated. Don't get too "chatty" with this doctor. Just answer his questions and perform the maneuvers he requests. Also be aware that these doctors love to watch you come and go from the office so that they can note that the only place you where limping was in their office.
6. What's my case worth, and how do you figure it? Or, my buddy got a bundle and I'm getting squat, what's with that?
What you get under Worker's Compensation depends on what you were making for salary or pay. Everything begins with a figure called the average weekly wage, (AWW). The AWW is figured from the date of your injury and the 52 weeks (or what ever period you worked) before that date. Overtime, if mandatory, is figured at a straight rate. The money you will receive while you are unable to work is called temporary total disability (TTD) and is figured as 66 2/3 of the AWW. Since this pay is tax-free it is meant to approximate your take home pay. When your case is ready to settle the amount you receive will depend on the body part injured and the extent of the injury. Each body part (arm, hand, leg, foot etc.) has an assigned value in weeks. The week, known as permanent partial disability (PPD), is figured as 60% of the AWW. For example: if you hand is cut off at work you will receive 190 weeks of PPD (the maximum) if you have injured your hand, such as a torn tendon or broken bone, the settlement figure is a percentage loss of use. If it is determined that you have lost 10% of the use of your hand then you will receive 19 weeks of PPD, or 10% of 190. There are caps on the PPD rate which are determined annually by the industrial commission under a scheme laid out in the Act. This cap is known as the maximum rate.
There are three ways to figure your award or settlement under the Worker's Compensation statute: 1. A specific loss, 2. You are declared permanently and totally disabled, and, 3. A wage differential. The vast majority of cases are specific loss cases. This means you have an injury to a specific body part which has a value in weeks set out in the statute and the issue is the percentage loss of use for that body part (see above). From here the value of your case depends on the specific medical diagnosis, procedures performed by your doctor and the end result when your treatment is finished. These factors are considered along with the propensities of the individual arbitrator who will decide your case if it goes to trail. There can be a 5 to 10 % difference in awards just depending on the arbitrator assigned. Additionally the experience of your lawyer with similar cases and awards from the full Industrial Commission in cases which have been appealed, are major considerations. Therefore your buddy got a lot more than you because his injury was different, to a different body part, he makes more money than you, or he had an arbitrator who is more favorable to petitioners.
A wage differential case occurs when the petitioner cannot return to his/her regular work and takes a job at a lower rate of pay. The award is 66 2/3 of the difference between the petitioners pay on their new job and what their pay would be on the old job on a weekly basis for life. A permanent and total disability case occurs when there is no reasonably stable job market for a person with the training, education and physical condition of the petitioner. The award is your TTD for life. All awards under either a wage differential or permanent total are reduced to what is called their present cash value, that is, a sum of money which will generate a stream of payment equal to the weekly award for the life of the petitioner. While this may sound like a good deal it is never enough money to exist on.
7. If this is a "no-fault" system why is the insurer fighting my claim?
There are two reasons that the insurer fights a case: Delay and to force a settlement that is less than full value. Typically most problems arise at the beginning of the case when the employer and the insurer are not communicating. Once the insurer gets into the case most of the problems stop. Since fault is not an issue the usual avenues for fighting a case are medical reasons and fact problems with the accident. If you do not remember the exact date of your accident do not expect your employer to assist you. If you are not sure where your accident occurred (applies to off premisis injuries) this can be a problem. Occasionally the employer will rustle up some "witnesses" to testify that nothing happened on the date and place we have filed on.
Medical reasons are more common. Failure of your doctor or hospital to send copies of your chart, which documents the treatment and history you gave, to the insurer slows down the payment of TTD and the payment of medical bills. The most common ploy is a difference of opinion between your treating doctor and the insurer's IME doctor as to the causes of your injury and your ability to return to work. Along with the insurer cutting off your TTD they will not pay any more medical bills and very shortly you will start to receive dunning letters from bill collectors. It does not take a vivid imagination to picture the situation you will be in; you're not getting paid and the bills are piling up. This is exactly where the insurer wants you to be as they can force a less than full value settlement down your throat. There are procedures within the Industrial Commission for these situations but they take a considerable amount of time to file, prosecute and get a decision. We simply ask your patience when one of these tactics rears it's ugly head.
•8. Why is it taking so long to get my medical bills paid and why am I getting bills for the money the insurer didn't pay?
For injuries after February 1, 2006 see the section entitled " NEW " below
Since 1990 every claim to a health insurer has come with a new feature, a hassle. Worker's Compensation is no exception. Under the old way health insurers paid bills the standard for the amount they would pay was "usual and customary". This meant that the health insurer would pay the usual and customary charge for like services in the geographic area you lived. For example your physician would recommend a headectomy for you and call the insurer who would tell him what they would pay as the usual and customary charge for a headectomy in your area. Enter the age of the HMO and managed health care. The health insurers began to set prices for procedures and services with medical providers under a contract. The most common is the PPO (preferred provider option) where the insurers negotiated set prices with the providers (hospitals and doctors). Under the PPO you usually paid a small out of pocket expense and were not liable for the difference between what the provider thought the service was worth and what the PPO paid.
Through all of this change the standard for the payment of medical expenses under Worker's Compensation was reasonable and necessary. As long as the price was reasonable, and the service necessary, the insurer had to pay it. Needless to say the medical providers thought they had hit the jackpot with a Worker's Comp. Injury. Within the last few years the Worker's Comp. insurers have begun to pay bills on a PPO basis, whether they have a contract with the provider or not, hence the balance due bill that has limped into your mailbox. We simply ship the balance due bill to the Worker's Comp. insurer so that they can fight with the provider or pay the difference.
Another reason for the delay is the failure of the medical provider to furnish copies of your chart to the insurer. It is not unreasonable for the insurer to see the records so that it can determine if the treatment is related to your accident. This would seem an easy process but it is not. Medical providers do not part with records easily. Copying of medical records has become a cottage industry and is viewed as another way to make money for the providers and their "copy services".
The other reason for delay is very simple: The longer they hold on to your money the more interest it earns.
NEW Due to a recent amendment to the Worker's Compensation Act charges for any work related medical services performed, or to be performed, after February 1 st 2006 will be paid in accordance with a fee schedule developed by the Commission. Additionally a provider will be required to submit copies of medical records substantiating both the need and the connection to the work injury to be paid. An employer, or insurer, then has 60 days to pay the bill or be subject to an interest penalty. The amendments also deal with cases where there is a dispute over the compensability of the injury. A medical provider may not report late payments to any credit agency after being notified that the bill is the subject of a Worker's Compensation case but is allowed to send "reminders" to the patient. These amendments will solve a lot of the problems with medical bills in a Worker's Compensation case however, because this is a new process, the education of the medical providers may take a while.
9. They have stopped paying my TTD, when can I go to court?
The remedy for the failure to pay TTD or the discontinuance of TTD is an emergency petition to the arbitrator. These petitions are emergency in name only. The petition must be served on the other side 15 days before the status call the following month. At the status call the arbitrator will set a date (usually within two weeks) for a hearing. The arbitrator does not rule at the hearing. Each side writes a proposed opinion for the arbitrator's signature, which must be submitted within 14 days of the hearing. This assumes that we can gather the necessary medical records and disability certificates in time for the hearing and that neither side needs to take a deposition of a medical provider.
10. I'm really worried that the job is going to fire me for filing a Comp. Claim, can
They do that?
Section 4 (h) of the Worker's Compensation Act states " It shall be unlawful for any employer, insurance company ... to discharge, or threaten to discharge, or refuse to rehire or recall...an employee because of the exercise of his or her rights or remedies granted by this act." The lawsuit that flows from this section is called retaliatory discharge. In truth the courts are very reluctant to enforce this section. As long as the employer has some sort of reason (late a few times, slow on the line, two many absences etc.) the courts will not find a retaliatory discharge. Similarly the job can demote you, change your hours or work location and the courts have held that since you were not fired, you have no claim. The good news is that very few employers know about this judicial reluctance and are scared of getting sued.
The better case is the failure to rehire or recall. The employer cannot blame the refusal to rehire on anything you did at work because you haven't been there. The damages for either a retaliatory discharge or failure to rehire case are the difference between what you are making on the job you have now and what you would have been making on your old job. You are required to seek new employment as part of your duty to mitigate your damages.
In truth very few employers fire or harass their employees who are on Comp. There might be some hard feelings from the supervisors who have to cover your spot but these generally fade as time goes by after your return to work.
11. I got hurt because of someone else's negligence. Can I also sue them?
If your injury was caused by someone or thing other than your employer but while you were working the possibility exists that you can also file a "common law" or "third party" lawsuit against that person or thing. However your employer (or their insurance company) has the right to be "subrogated" to your suit for the money they have paid on your claim. That includes the money for your medical treatment, your TTD while off work and your lump sum settlement. This subrogation right is absolute in the Worker's compensation Act and creates a lien upon the proceeds of your common law suit. The philosophy of this office is simple: we will prosecute the action that puts the most money in your pocket. Sometimes it is not worth pursuing the common law action because of lack of insurance on the at-fault party or the presence of significant contributory negligence on your part. This does not mean that the suit will not get filed, only that we won't file it. Often the Worker's Compensation insurer will file the suit. When that happens you are obliged to cooperate with them in the suit.
12. I'm going to be off work for a long time, who's going to continue paying for my
Fringe benefits?
There is nothing in the Worker's Compensation Act that refers to or covers fringe benefits such as health insurance. What happens to your benefits depends on where you work, how the various plans are structured and who is paying the premiums. If you are a member of a labor union very likely your benefits are provided by the union's health and welfare fund. The premiums for the union provided benefits are paid by your employer based upon the hours you work. The problem here is that you are not working when you are disabled and on TTD. After a certain amount of time, determined by the contract between your union and the employers, the employer is no longer required to make these payments and you get a COBRA letter from the union. COBRA stands for the federal law that requires employers, or benefit providers, to allow you to continue your health insurance for 18 months provided YOU pay the premiums. These premiums will be considerably less than you would be paying on the open market but typically are between $250 and $500 per month.
If you work for a non-union employer, who provides benefits, you have to read the employee benefit handbook, plan summary or whatever publication you have that describes the various benefits provided by your employer. Many plans have a disability premium waiver that pays the premiums if you are disabled and unable to work. There is no legal requirement that a plan contain these waivers so not all plans have them.
Whenever the subject of fringe benefits has come up in Springfield the Manufacturers Association screams bloody murder about Worker's Comp. being too expensive already. Moreover the Legislature is reluctant to craft a law that covers the many different situations under which benefits are provided.
13. I told my doctor that my injury was not work related so I could get my health insurance to pay for it. Am I stuck with that?
The Commission has generally taken the position that you are held to the information you gave in your medical history to any doctor or provider because it is believed that people will not lie to their doctor because it could effect the treatment they receive. This is also a tenant of civil law, as doctors have to rely on the history they receive in making diagnosis and treatment decisions. Therefore you should always tell the truth . It may make it more difficult to get treatment initially but will pay huge benefits as the case progresses. All health insurance policies carry an exclusion for work related injuries so that you cannot collect you medical expenses twice. Suffice to say that it is very difficult, if not impossible, to overcome an entry in your history that you injury either did not happen at work, or was not work related. The only way to avoid this trap is to answer that you are unsure or don't know if the injury is work related.
•14. I'm afraid my employer will be angry because filing a claim with the Worker's
Compensation Commission
The answer is twofold: first, by receiving benefits for an injury you have, in essence, made an insurance claim, and two, worker's compensation insurance premiums are not set by the claims experience of your company. Worker's Compensation premiums are determined by a formula that has three parts: the business your employer is in, the annual payroll and the number of employees who are covered. The insurance carrier will periodically audit businesses to determine if the information on their policy application is correct and will alter the premium, either up or down, based on the formula above. For example, a roofing company that does not do hot roofing will have a lower premium than a similar company that does. In short it makes no difference to your employer if you make a claim and file with the Industrial Commission. This doesn't mean that your employer will not be unhappy with you but it shouldn't be for causing their premiums to go up.
15. The Worker's Compensation Company has assigned a nurse to me, she/he wants to go to all my appointments and talks to my doctors and nurses about my case. Is this a good deal?
NO! This is not a good deal, generally. The nurse either works directly for the Worker's Compensation insurer or a company hired by the company. She is not there for you. Her job is to get you back to work as quickly as possible, weather you're ready or not. You have a right to be examined by your doctors and providers in private. She also has no right to talk to any of your providers without your permission. This preserves the physician/patient privilege. You are required to cooperate with the nurse if you are receiving TTD. The law allows the insurer to stop payments if there is no cooperation with the case manager.
•16. I can't go back to my old job, what happens now?
If you cannot return to your old job the insurer owes you 66 2/3 of the difference between your old job and the job you have now. Again you have a duty to seek employment within your restrictions. This is referred to as a wage differential case. The usual settlement is seven years of differential in a lump sum. These cases work really well for a union (high paid) worker who is now forced to take a low wage job and not so good if the new job is at, or near, your old rate of pay. In addition the insurer will hire a vocational rehabilitation specialist to assist you in finding work. The good new is that they will continue to pay TTD until you find a job. The bad news is that most people can do a better job of vocational rehabilitation with the want ads than with a specialist.
•17. I was injured a couple of years ago, can I still file a claim?
The statute of limitation for the filing of a Worker's compensation claim in Illinois
requires you to have an Application for Adjustment of Claim on file with the Worker's Compensation Commission within three (3) years of your accident. The fact that you are receiving benefits from your employer, or their insurer, does not mean that a claim has been filed. You must file your own claim, or hire an attorney to file a claim for you. Given the complexity of the Worker's Compensation Act and the complicated process for getting a hearing you are always better off hiring an attorney. The statute of limitations is easy to calculate for most accidents however it can be an issue with certain repetitive trauma injuries such as carpel tunnel syndrome. There has been much litigation about when the statute of limitations begins for repetitive trauma injuries so it is difficult to give an easy answer to that question. You are best to consult with an attorney well versed in Worker's Compensation law if your injury is one that developed over time at work.
•18. What does an attorney cost and do I have to pay any attorney's fees up front or while the case is going on?
The attorney's fees in a Worker's Compensation case are set by the Worker's Compensation Act as 20% of whatever is recovered on your behalf. The attorney's fees are low because Worker's compensation is a limited recovery. The other expense in a case is the cost of obtaining medical records, paying court reporters for depositions and paying for independent medical examinations. Typically the costs in an ordinary case do not exceed $100.00. If a case is hotly contested then the costs can get high. The attorney advances these costs during the case and they are subtracted from your recovery after trial or settlement. Costs advanced are a separate deduction from the total recovery ahead of the attorney's fees. After trial or settlement the attorney will subtract the fees and costs as separate items.
