Workers' Compensation Law
Under general tort law, someone who is injured by the negligence or carelessness of another can sue that person for damages. Where that injury is work-related, however, special sets of state laws apply, called workers' compensation laws.
The workers' compensation laws involve a trade off. On the one hand, they benefit the injured worker because he or she doesn't have to prove that the employer was negligent or careless. If the injury is work- related, the worker can recover benefits without establishing any fault on the employer's part, even if the injury was caused by the worker's own carelessness. On the other hand, the laws benefit the employer because the only recovery that the injured employee is entitled to get is what is allowed under the workers' compensation statutes, which means no punitive damages. The injured worker is entitled to what he or she lost - medical bills, wages, etc. - but not to anything above that amount.
Certain businesses, particularly those that involve hazardous activities, are required to join the system, although the very smallest businesses are allowed to opt out. Others are allowed to join voluntarily, which most do because they want to limit their liability.
Basics. Workers' compensation applies to accidental work-related injuries. It does not apply where one employee intentionally attacks another employee. It may also not apply where an employee fails to follow safety rules. It covers any accidental injury, including sudden injuries, such as a broken leg; gradual injuries, such as carpal-tunnel syndrome; and pre-existing injuries, such as where work-related heavy lifting worsens a bad back.
Employees with work-related injuries can recover all reasonable and necessary medical expenses, lost wages, rehabilitation expenses, and death benefits to dependents for fatal accidents.
Two terms are important to know. The first is temporary total disability. It means that the injury is total, so that you can't work, but temporary in the sense that you will return to work one day. An injured employee reaches temporary total disability status once he or she misses three days from work. The employee who is temporarily totally disabled receives two-thirds of his or her weekly wage while out from work. The employee does not receive it for the first three days he or she was out, unless the employee is out for at least 14 days.
The other term to know is permanent total disability. As the name implies, it means that an employee cannot work and will not ever be able to work again. The actual definition is wholly and permanently incapable of work. In many cases, the employer will try to alter the employee?s job in order to get around the permanent total disability status. For example, an employee who cannot lift heavy objects will be given the job of sweeping the floors. Moving an employee to a new job is allowed, subject to certain limitations, such as that they involve similar pay, status, and benefits.
Permanent total disability is paid for life at two-thirds of the injured person?s pay, but not less than statutorily set amounts that depend upon marital and family status. If the injured person were to return to work, the award is modified accordingly. If the person is earning as much as before, he or she is not entitled to further benefits.
Procedure. The first step for the injured employee to take is to notify his or her supervisor of the injury. The general rule is that the employee must notify the employer of the work-related injury within 45 days of becoming aware of it. Note that the deadline is not necessarily 45 days from the date the injury occurred. If, for example, a physician doesn't diagnose the injury until later, the injured employee would have 45 days from the diagnosis to file the claim with the employer.
The claim should be filed by notifying a supervisor. Telling a co-worker may not be enough. The notice itself does not have to be in writing; it can be oral, although the employer will usually ask the employee to fill out a form after being notified. Failure to notify the employer within the time allowed may result in a loss of any benefits.
Denied claims. In some cases, the employer will deny the workers' compensation claim. The most common ground for denial is that the injury wasn't work-related. While the question of whether an injury is work-related might seem to be straight forward, often it is not. For example, what if a salesman on a way to a sales call stops at a grocery store for a personal errand and is injured? What if an employee is injured at a company picnic? What if the employee is injured getting into his car on the way to work? The general rule is that the injury must arise out and in the course of employment. Trips to and from work are not covered, nor are company-sponsored events, such as picnics, unless the employee is required to be present.
A far more common work-related denial is for situations where the employer believes that the injury occurred away from work, such as where the employee says he hurt his back picking up boxes but the employer believes that he hurt his back cleaning his gutters over the weekend. Generally, the employee will prevail in those situations, unless the employer can produce strong evidence otherwise, such as medical records showing a prior back injury or a statement from someone that the injured employee told him that the injury occurred away from work.
A third category of denials involve the situation where the employer doesn't believe the employee is really injured, or not as injured as he or she claims to be. Pain is a difficult thing to measure. The employer will usually have the employee examined by its own doctor, but that can be inconclusive. Sometimes, the employer will hire an investigator to determine if the claims are true. Plenty of times the employee who has told the employer that he can't bend or lift has been filmed bowling, golfing, or playing with the children without pain.
In other cases, the employer may accept that the injury was work-related and pay benefits, but it will deny that certain treatments are related to the injury. For example, it might accept that a back injury was incurred while on the job, but it will object to back surgery on the ground that the surgery is really designed to repair a condition that pre-existed the work-related injuries. In still other cases, the employer might object that certain treatments are unnecessary.
Recourse. Where the employer has denied the claim, the employee's first step should be to contact an attorney who specializes in workers' compensation claims. One option that will be discussed with the attorney is whether to file a claim with the Illinois Industrial Commission. The Illinois Industrial Commission administers Illinois' workers' compensation system. It will conduct a hearing and issue a judgment, just as any court would. Appeals from those decisions are to the Illinois Circuit Court.