How is the lump sum settlement that an injured worker receives at the conclusion of a workers’ compensation case calculated in Illinois?
Every workplace injury case is different. A lot of it depends on what your condition is at the conclusion of your medical care and treatment. Are you returned to work full duty by your employer? Are you unable to return to your former position? Are you now receiving less salary or wages than you received before the accident? Are you permanently and totally disabled and incapable of working? These are all of the questions that a skilled workers’ compensation attorney must ask.
If you’re able to return to work full duty we analyze what those types of injuries and permanency disabilities in the past would typically receive from the Workers’ Compensation Commission.
If an employee is unable to return to their prior job and incurs a wage loss because of that, we could try to obtain a settlement based upon a wage loss differential—the money that they’ve lost as a result of this injury.
If you’re never able to work again, we would attempt to prove permanent total disability. There are two different types of disability that we may seek. The first is when someone is completely disabled where they’re unable to function on their own and likely require the assistance of another person to perform daily tasks. In this situation, the disabled worker would be entitled to a permanent total disability award.
The other type is what’s called an odd-lot permanent total disability. We would attempt to prove this theory in situations where, because of these injuries and the resulting disabilities and deficits, there is no feasible job market that exists anymore for you. These injured workers typically are capable of work but there is no feasible job or employment that can be obtained as a result of the injuries.
If you are injured in the workplace in Illinois to the extent that you are missing work or needing medical treatment, it’s imperative to have an experienced workers’ compensation lawyer – even if the employer is paying your workers’ compensation benefits and approving medical treatment after you made your claim.
You need a workers’ compensation lawyer because you want to be in the best position to react in the event the employer and the insurance company start denying treatment. This often occurred when they send you to one of their doctors who no longer believes that you should be off of work or doesn’t agree that you need certain treatment. When this occurs your attorney can react immediately and have the necessary medical evidence and records to refute these arguments.
Insurance companies want to close your case as soon as possible to save money. If you don’t have a lawyer on your side until after they cut you off, your lawyer will need to get up to speed on the situation in order to file a motion immediately and make the best possible argument against the workers’ compensation insurance company.
An additional advantage is that we, as your lawyers, are often able to negotiate a much higher settlement for an injured worker than they may be able to negotiate for themselves. In fact, often the employer won’t even suggest the possibility of a settlement to unrepresented Petitioner and allow the statute of limitations to run thus barring your claim forever.
Workers’ compensation claim time limits
Generally speaking, you have three years from the date of the accident or two years from the date that benefits were last paid, whichever is later, to file a workers’ compensation case in Illinois. If you wait more than those periods then your claim could be barred forever against the employer. Every case depends on its unique facts and circumstances, however, so you are urged to talk with a workers’ compensation attorney before you conclude that it is too late.
Please talk with a lawyer if you’re not sure about how the time limits apply to your scenario.
Illinois Workers’ Compensation Benefits – Lost Wages
When an employee is injured and off of work the benefits that they are entitled to for lost income is called temporary total disability (TTD). If you’ve been injured in the workplace in Illinois to the extent that you are missing work, the amount that you are paid in TTD is based upon your average weekly wages on the date of the accident. That’s determined by the amount of money you made in the 52 weeks preceding the date of the accident. If you worked all 52 weeks or an entire year, it’s relatively simple to calculate.
However, if you only worked six months or eight months, they would only utilize the weeks and parts thereof that you worked, so that they can accurately portray the wages and calculate your benefits.
Once the average weekly wage is ascertained, the employee would be entitled to two-thirds of that amount tax-free for as long as that employee is off work.
You would be entitled to TTD if your doctor has you completely off work or if your doctor has you on light duty and your employer is unable to accommodate that light-duty work.
If the employer is able to accommodate your light duty, then you would either have to return to that light-duty position, or you would not be entitled to additional compensation.
What if the insurance company doctor concludes that you’re capable of full duty work?
In the situation where your employer terminates your benefits based on the opinion of the insurance company doctor that you are fit for work, we would immediately petition the court for an emergency hearing and argue that pursuant to your own doctor’s orders, you should still be off work and still be entitled to temporary total disability.
What if the light-duty or other offering is part-time and less than two-thirds of my average salary?
Let’s say that before the accident, you worked 40 hours, but the employer can now only offer 20 hours of light-duty work with your restriction. In this case, you would be paid 20 hours by your employer for the work that you are doing and the insurance company would pay the other 20 hours that you would have made but for the accident. You’d receive two-thirds of that amount tax-free. In effect, you would receive money from the insurance companies as well as from your actual employer.
There are three critical things to do after being hurt at work. First, report the actual accident to the employer. Under the Illinois Workers’ Compensation Act , the injury employee has 45 days to provide notice to their employer. If you don’t do that, it could be a complete defense afforded to the employer.
The second most important thing to do is to see a doctor or medical provider immediately. You want a history in the doctor’s records of how the accident occurred and you should get the necessary treatment for the injury as soon as possible
The third most important thing would be to see an experienced workers’ compensation lawyer for a free consultation to ensure all of your rights are preserved.
Are there exceptions to the 45-day notice requirement?
The main exception would be in situations where you are injured and you don’t realize that the injury is the result of your work duties. The best example would be if it’s a repetitive trauma injury. At some point down the line, you begin experiencing symptoms and see a doctor for treatment.
The doctor may conclude that he or she believes that the injury occurred from the repetitive job activities of your job. In that situation you would in all likelihood have 45 days from the time of diagnosis to provide your employer with notice.
It is difficult to pinpoint the date of injury for purposes of the 45-day notice window with most repetitive trauma type of injury and an experienced attorney can help guide an injured employee through such difficulties.
Can I see my own doctor or must I go to the doctor assigned by the workers’ compensation insurance company?
Under the Illinois Workers’ Compensation Act, you have a choice of two doctors who you can see of your own choosing.
We strongly advise that you first see your own doctor. If your doctor needs to refer you to another doctor, it is best to have them do that because that would still technically count as part of your first choice. If there are other referrals from that doctor, every doctor in that referral chain counts as a single doctor.
Please talk to an experienced workers’ compensation lawyer if you’re unsure about your situation and would like to learn more about your rights and options.
Before you make your claim to the workers’ compensation insurance company, you should have an experienced lawyer on your side or at least to have consulted with one about your rights.
There are various circumstances that an employer may have to determine to assess if it is a compensable accident or a compensable accident up to a certain point. If an employer has you seen one of their doctors, and their doctor gives the opinion that your current condition is no longer related to that accident, you will want to have a lawyer retained because your only options at that point are to petition the court to make a ruling.
In this instance, you would go before the Illinois Workers’ Compensation Commission and request that the arbitrator assigned to your case makes a determination as to the disputed issue.
Is there an appeal process in Illinois for a workers’ compensation claim denial?
The appeal process for a claim denial involves motioning the case up for trial before the Arbitrator assigned to the case. The Petitioner would provide their testimony as well as any other relevant witnesses. The employer would also have the chance to present witnesses and other evidence to support their position. The Arbitrator will then evaluate all of the evidence, including the Petitioner’s medical records and any testimony, in order to make a decision with respect to the disputed issue.
Each side gets the option to appeal or accept the Arbitrator’s decision. If it’s favorable for the Petitioner then we will not take any more steps to appeal that decision. If it’s not favorable, then we would file review where the issues and evidence would be presented before a three Commissioner panel of the Workers’ Compensation Commission.
Insurance companies often appeal the arbitration award when it’s favorable to the injured worker. Our firm is always ready to go the distance should your case be appealed and end up before the Workers’ Compensation Commission.
Workers’ compensation (often referred to as “workers’ comp”) law in Illinois is a law that governs when employees are injured while at work in a “compensable” accident.
Injured workers are mainly entitled to three benefits (assuming there is a compensable case):
- The employer is going to pay them temporary total disability—two-thirds of their average weekly wage tax-free during the period that they are off of work.
- All of the injured employee’s medical bills are paid during the duration of whatever disability that they have, and
- A lump sum settlement or an arbitration award to compensate the employee for the disability sustained.
What is a compensable case?
There are various elements that govern what in fact is a compensable workers’ compensation injury. For example, there must first be an employer-employee relationship established. It also must be an injury that both arises out of and occurs during the course of employment. Those are critical elements that must be met in order for a case to be deemed compensable.
There are exceptions for certain injuries while working that may not be covered as a work accident. One gray area, for instance, is if someone is traveling to or from work or if they get injured in the parking lot immediately before or immediately after work. Then you have to start looking at several different factors. Did the company own the parking lot? Was the injured person on the clock during that time? Were they performing a task that benefited their employer when the injury occurred?
An effective Petitioner’s attorney must look at all of the facts and circumstances in order to properly evaluate every case and provide effective representation.
Whether you can get workers’ compensation benefits depends on all of the facts and circumstances of your work injury. In any case, if you’ve been hurt at work, you are encouraged to speak with an experienced workers’ compensation attorney to learn about your rights.
Our consultations are always free.