Workers' Compensation Defense Law
Workers' compensation laws are state laws that require certain employers to purchase insurance coverage that provides benefits for employees who suffer work-related injuries. Others are allowed to opt in. Employers that can prove the necessary financial wherewithal can elect to self-insure rather than purchase insurance coverage. The Illinois Industrial Commission administers the program.
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.
Covered employers. The Illinois Workers' Compensation Act requires businesses that engage in engage in extra-hazardous and other designated activities to provide workers' compensation coverage for their employees. Some examples include demolition, excavation, construction, mining, warehousing, those serving alcoholic beverages, those that use power equipment, beauty shops where chemicals or heated instruments are used, those that manufacture goods, and those who hire domestic workers for at least 40 hours per week. Employers that fail to comply can be fined up to $500 per day, with a minimum fine of $10,000.
All other businesses not listed in the statute are not required to provide coverage, but they have the right to opt in. Most businesses, of course, choose to opt in because they find the trade-off the laws offer attractive. A business that elects to opt in must file a notice of that election with the Illinois Industrial Commission.
Covered employees. The law applies to all employees, including those employed by the state, counties, cities, townships, and other governmental bodies. A contractor who contracts with a governmental body is not considered to be an employee of the governmental body.
An employee is defined as anyone under a contract for hire. The law applies to both full-time and part-time employees, as well as to unlawfully employed aliens and minors.
Where a loaned employee suffers a work-related injury, the lending employer and the company that the employee was working for at the time of the injury are jointly and severally liable for the workers' compensation benefits, unless they have an agreement to the contrary. Thus, if the injured employee makes a claim against one company and the company refuses, he can make a claim against the other company.
Workplace notice. Employers are required to post written notices that explain worker rights under the law throughout the workplace. In addition, the employer must post in a conspicuous place a notice indicating whether the employer has workers' compensation insurance or has elected to self-insure.
Recordkeeping. Employers are required to keep records of all work-related injuries, illnesses, and deaths, except those that involve first aid treatment. Periodic reports have to be sent to the Illinois Industrial Commission on all injuries that involve a loss of at least three workdays.
Work-related injuries. To qualify under the act, the injury must be work-related. The term used is that the injury must arise out of and in the course of employment, which means that the injury must have occurred in a work-related activity. Traveling to and from work has been determined not to be work-related. Injuries at company-sponsored picnics are not work-related unless the employee is required to attend. Injuries that occur on business trips are covered, provided that the activity that caused the injury is related to work.
Injury notices. Injured employees are under an obligation to notify the employer of the injury. The law requires that notice be given "as soon as practicable," but not later than 45 days after the injury. Typically, an injured employee will notify his or her manager. Telling a co-worker is usually not considered to be adequate notice, unless the co-worker notifies the employer.
Once an employer is notified, it is required to notify the injured employee of his or her rights under the workers' compensation laws.
Types of injuries. To be covered, work-related injuries must be accidental. Thus, the workers' compensation laws don't cover injuries intentionally caused by co-workers. Illnesses, as well as injuries, are covered, which means that workers, for example, who get sick from exposure to fumes or who suffer stress-related injuries are covered by the laws. Conditions made worse from work are covered. Thus, a worker who aggravates a pre-existing back injury is covered, although some protections may be available to the employer through the Illinois Second Injury Law. Injuries caused from repetition rather than from a single event are covered. Thus, injuries related to carpal-tunnel syndrome are covered.
Compensation. 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.
One type of benefit is temporary total disability. It refers to an injury that is total, so that the employee can't work, but temporary in the sense that the employee 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.
There are also pay schedules that provide additional compensation to employees for loss of body parts and for hearing loss.
Employer rights and obligations. The employee has the right to choose the treating physician. If the employee is unhappy with that physician's treatment, the employee may choose a second physician. The employer is obligated to pay for the treatment provided to the employee by both physicians, but it is not obligated beyond two physicians.
If the employer doubts the employee's injuries are as serious as claimed or believes that a certain treatment course is not medically necessary, the employer has the right to ask the employee to submit to an examination by a physician selected by the employer.
Employers with an employee who is entitled to permanent partial disability or permanent total disability payments have the right to seek a lump-sum settlement with the employee. The settlement value is typically the present value of all future benefits to which the employee is entitled.
Employers cannot take action against an employee for filing a workers' compensation claim. Thus, they cannot fire, threaten to fire, or harass employees who file claims.
Defenses. Employers have the right to deny all or part of workers' compensation claims that they believe are not legitimate. The most commonly asserted defenses are that the injury was not work-related, that the injury doesn't really exist, that certain treatment is not medically necessary, and that the employee failed to follow prescribed safety rules.
Workers' compensation disputes are resolved by filing a claim with the Illinois Industrial Commission. The Commission will usually designate an arbitrator to hear the dispute. Appeals of arbitrator's decisions are to the Illinois Circuit Court.