Transcript Tech 435 Illinois Worker’s Compensation System: Understanding It Illinois Worker Compensation Law • • • • Difficult to predict the outcome of a case Interpretation Complexity of Issues Letter of.

Tech 435
Illinois Worker’s Compensation
System: Understanding It
Illinois Worker Compensation Law
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Difficult to predict the outcome of a case
Interpretation
Complexity of Issues
Letter of Law ignored at times
– No one has a big enough stake to take the
case to the Appellate or Supreme Court
– Example – “mileage to treating medical
providers”
Overview and Definition of IL.
Worker Compensation Benefits
• There are three main
benefits:
– Medical,
– Temporary Total
Disability and
– Permanent Partial
Disability.
Medical Benefits
• IL allows for 100% of all related and
necessary medical treatment rendered by
the first doctor chosen solely by the
employee (along with any doctor that
physician refers the employee to see) and
for treatment by the second doctor solely
by the employee (along with any doctor
that physician refers the employee to see).
Temporary Total Disability (TTD)
• IL. Allows for 66 2/3%
of an employee’s
average weekly wage
during all periods they
are temporarily totally
disabled from all
work.
Temporary Partial Disability (TPD)
• If an employee returns to any work
following injury-part-time or full-time light
duty work at a lower rate of pay on a
temporary basis, IL. law does not require
that an employer make up the difference
or continue to pay temporary total
disability until the employee returns to full
duty.
Permanent Disability (PD) is
awarded in 6 ways
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Serious &Permanent Disfigurement
Specific Loss
Nonspecific Loss
Wage Differential Benefits
Total and Permanent Disability
Death
Vocational Rehabilitation
• A benefit that may be claimed and/or
awarded in specific circumstances. In rare
instances, the Commission may order
complete re-education or retraining of an
individual due to an injury related job
change.
Maintenance
• Benefit that may be awarded in specific
circumstances-it is generally difficult to
define but in most typically appears to be
temporary disability or other expenses
paid during vocational rehabilitation or
retraining.
– Mileage to treating doctors: is a benefit that
may be awarded if claimed.
Maintenance Continued
• For respondent to schedule an Independent
Medical Examination and have the employee
legally required to attend, the employee is
entitled to mileage, meals and time lost from
work in advance of the appointment.
• IL employee can seek civil damages for
retaliatory discharge/termination or failure to
recall as a result of seeking worker
compensation benefits.
Penalties
• In IL they are 50% of the amount payable
for temporary total disability or permanent
partial disability which are not paid for
frivolous reasons or withheld solely for
delay. Penalties can be awarded for not
paying penalties resulting in an additional
50% of the 50% already awarded (and
although we are not aware of it happening,
this could occur on and indefinite basis).
Penalties (CONT)
• There is an additional penalty of $10 a day (with
a cap of $25,000.00) which can be awarded for
not paying temporary total disability for frivolous
reasons or solely for delay.
• Attorney’s fees in IL (typically 20% of the
disputed benefits) can be made payable by the
Respondent at the discretion of the Commission
when benefits are withheld frivolously or solely
for delay.
How Il Benefits Are Delivered & the
Role of The Industrial Commission
• Unlike many states, the delivery of
benefits in IL W/C could take place without
the IL Industrial Commission’s having any
real role in the process. Currently the
Industrial Commission role is to resolve
conflicts but does not actively manage or
supervise benefit delivery unless someone
raises a dispute.
Forms
• Illinois has two forms that it provides to
employers and their insurance carries or
third party administrators (TPA’s) to report
accidental occurrences. They are:
– Form 45-Intial report of injury
– Form 85-or supplementary or final report of
injury
Forms
• No one logs the forms in
• There is no database
• Some carriers and self-insured companies
are allowed to file report’s electronically
• LACK OF ALLOCATED FUNDING BY
THE STATE IS A CAUSE.
IL W/C Benefits is Self-Effectuating
• Employer required to have a supervisor
become aware of the employees loss
within 4 days of injury.
• Form 45 is required to be filed at the
Industrial Commission by the employer,
but the document is filed in a room & will
not generally take any action on
information outlined on the form.
IL W/C Benefits is Self-Effectuating
• It is expected that the employer and carrier
or TPA will adequately investigate the
claim on their own & render a decision
regarding whether benefits are owed.
• If additional time is needed to decide if
benefits are due, the carrier or TPA is
supposed to notify the employee in writing
of what information is required to render a
decision.
IL W/C Benefits is Self-Effectuating
• If the decision is to pay benefits, no one has to
be advised of the decision other than the
employee.
• If the decision is to deny benefits, there is a rule
which requires written notification of the for
denial.
• It is entirely possible to accept a claim, pay
medical, temporary disability & close the file w/o
notifying the Industrial Commission (other than
filing the Form 45).
IL W/C Benefits is Self-Effectuating
• The IL Industrial Commission is more like
a courthouse for industrial injury claims
than an institution which manages
insurance or TPA claims management.
• In an effort to maximize benefits on behalf
of claimant’s the ‘typical’ IL workers’
compensation claim begins at the
Industrial Commission by filing an
Application of Claim.
Filing A Claim
• Filing of the form is carefully catalogued,
indexed & tracked by the Commission.
• The claim is randomly assigned an arbitrator &
will pend for up to 3 years before either side has
to take some significant action to resolve it.
• The claim will appear on a status call every 90
days unless an emergency petition is filed by the
employee to accelerate the matter to hearing.
• Claims are typically filed due to a dispute over
medical bills or termination of TTD.
Hearing Before Arbitrator’s
• Approximately 90% of all IL workers’
compensation claims are settled at or during
arbitration.
• It is usually best for the employer to settle.
• Cases can also be resolved by voluntary
dismissal, involuntary dismissal for want of
prosecution or on motion by the arbitrator or
Commissioner, decision or award by the
arbitrator (Commission) & resolution of the claim
on appeal to the circuit, appellate or supreme
court.
Is This Loss Covered by the Illinois
Workers’ Compensation Act?
• Determine if the claim is covered by workers’
compensation law versus general liability or
some other common law or statutory remedy.
• If it is covered, does Illinois W/C law or that of
another state.
• If the case belongs in Illinois, the adjuster must
determine whether the policy in force at the time
of the accident or disability covers the particular
loss alleged.
Is This Loss Covered by the Illinois
Workers’ Compensation Act?
• The basic question is sometimes
overlooked. Is this a workers’
compensation claim?
– Did it occur “in the course of, or arise out of,
employment”?
– If it occurred outside of employment or as a
result of a risk of everyday life (regardless of
work) benefits should be denied.
– One exception to the above is the ‘traveling
employee’ rule.
Is This Loss Covered by the Illinois
Workers’ Compensation Act?
• Claims involving employees who are traveling
on a special mission for their employers are said
to be protected by worker’s compensation
coverage for all activities they could reasonably
be expected to partake in while on the road.
• There some instances that give an “option” with
regard to payment of benefits under either
workers’ compensation or general liability.
– Slip on ice while working on company property
– Opting to pay w/c claim would block any 3rd party
claim against the employer if the employee knowingly
accepts such benefits.
Illinois Jurisdiction
• Adjuster determines if Illinois is the proper
jurisdiction for the claim to be heard.
• Claimant could have a w/c claim in a multitude of
states.
• Employer should receive ‘credit’ for any benefits
paid in any state under the full faith and credit
clause of the U.S. Constitution & not have to
double or triple pay multi-state benefits.
• Payment of Illinois benefits does not block the
filing of a claim in another state (or states).
Illinois Has Proper Justification if
One of the Following Tests are Met
• Accident in Illinois
• Accident outside of IL
but the ‘contract for
hire’ formed in Illinois
• Employment was
‘principally
localized’ in Illinois
• Other factors are
location of worksite,
level of business in IL.
Is This An Employee?
• Employee vs. Independent Contractor
– Relationship of work performed
– Party most likely to have insurance coverage
for the loss
– Right to control manner that work is done
– Method of payment for work performed
– Right to discharge and means of discharge
– Party furnishing tools, materials & equipment
Is This An Employee?
• Independent Contractor Agreements
• Special Employment Relationships
– Volunteers
– Casual or Part-time Employees
– Loaned & Borrowed Employees
– Statutory Employment
• Section 1(a)(3) IL W/C Act
• Fefferman v. Industrial Commission (1987)
• Laffoon v. Bell & Zoller Coal Co.,
Is This An Accident?
• In the course of
– On the Clock
– Going to and from Work
– Traveling Employee
• Arising out of
– Job Specific Risk
– Risks We All Face
• Repetitive Trauma
– Carpal Tunnel Syndrome
Is This An Accident? (cont.)
• Date of Loss Problems in Repetitive
Trauma Cases
First Notice of Pain
Last Day Employee Worked
• Inability to Implead or Seek
Contribution Among Several Employers
 Dilemma Each Employee Faces
One Employer will have to pay
Is This An Accident?
• Can Work Be An Accident?
– Aging Worker
– Worker Compensation Becoming Group
Disability Coverage
• Accident v. Occupational Disease
– Sudden Unforeseen Event
– Disease Producing Agent
– Occupational Disease Act
Is This An Accident? (Cont.)
• Illinois Unusual Occupational Disease
Defense
– 2 Years from Date of Last Exposure
• Quirks in the Occupational Disease
Defense
– Overtime Pay Included
– No Penalty Provision
– No Interest Provision
– Broad Exposure Standard
Casual Connection
• No Requirement of Medical Evidence
• Medical Opinions and Complex Issues
– Need to Dispute the Petitioner
• Battle of the Experts
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Treating Physicians
Dual Choice of Physicians
Esteemed Physicians
Independent Medical Examination
Sending the Treatment Records to Another Physician
Casual Connection (Cont)
• Typical Casual Connection Defense
– Intervening and Superceding
– Two Injuries/Two Employees
• Medical Depositions in Illinois W/C
– Purpose of Deposition
– Time and Cost Factor
– Delay Factor
• Work does not have to be the sole cause, simply
a cause