Illinois Workers' Compensation Law Changes 2011
The Illinois Legislature amended, or changed, key elements of the Illinois Workers’ Compensation Act. Some of the changes became effective on the day that Governor Pat Quinn signed the Amended Act into law on June 28, 2011. Other changes did not take effect until September 1, 2011. The changes made to the Workers’ Compensation laws are far too extensive to summarize here. What is important to know is that Illinois workers still have the right to obtain medical care and compensation for their work related injuries.
Unfortunately, the changes the Illinois legislature and Governor Patrick Quinn made make it harder for workers injured in Illinois to obtain medical treatment, a hearing on their claims, and the monetary compensation they deserve. None of the changes were made to benefit injured workers. The changes were made to reduce the money that businesses and insurance companies pay on claims to allow insurance companies the opportunity to make larger profits workers and convince businesses that Illinois is a “business friendly” State.
The changes to the Workers’ Compensation Act create further obstacles by introducing procedural changes that are designed to slow down the system and frustrate injured workers. The changes will result in needless delays for injured workers in their efforts to obtain needed disability benefits and medical treatment, and delay the payment of compensation to injured workers.
As a result of these changes, actions taken, or not taken, by injured workers right have the potential to alter the course of a claim and prevent an injured worker from obtaining all, or significant portions of, the workers’ compensation benefits and monetary compensation to which the injured worker is entitled. Now, more than ever, injured workers will need the advice and assistance of a qualified and knowledgeable attorney from the very beginning of a claim to assist injured workers in navigating the system, and reduce the delays in obtaining compensation for their injuries. Contact the law offices of Boshardy Law Office, P.C. for more information on the changes and what you have to do to protect your rights.
Workers compensation claims frequently asked questions
1. Do I have to receive treatment from the company doctor?
Recent changes to the Illinois Workers’ Compensation Act have drastically altered the rights of injured workers to receive medical treatment from doctors of their own choice. These changes create traps for Illinois workers that may result in the injured worker becoming responsible for payment of the medical expenses they incur!
Under the changes to the Illinois Workers’ Compensation Act, an injured worker no longer has the absolute right to choose two (2) doctors of their own choice if the employer provides, and notifies, its employees that the employer maintains a Preferred Provider Program (PPP).
If an employer maintains a PPP, the injured worker may seek medical care from a physician in the PPP, OR the injured worker may choose to treat with only one doctor of his or her own choice. The doctor chosen by the injured worker may refer the injured worker to as many other doctors that may be reasonable and necessary to cure the injury, so long as those subsequent doctors are within the chain of referral from the first doctor and the employer will remain liable if the claim is found compensable,
If the employer does not maintain a PPP, the injured worker has the right to seek treatment from two doctors, for which the employer will remain liable if the claim is found compensable. Those two doctors may in turn refer the injured worker to as many other doctors that may be reasonable and necessary to cure the injury, so long as those subsequent doctors are within the chain of referral from the first two doctors.
Understanding these rules and making the correct choices at the beginning of a claim is more important than ever to the successful outcome of an injured workers’ claim. You should contact Boshardy Law Office as soon as you have been injured to help you navigate these new rules, and obtain quality medical care, so you do not become responsible for paying your work related medical bills.
2. Can my employer or the workers’ compensation insurance company refuse to authorize my medical treatment?
Your employer, and its workers’ compensation insurance company can, and often does, refuse to authorize medical care for a number of factual and legal reasons that may not be clear to an injured worker. Boshardy Law Office, P.C. has helped thousands of injured workers obtain the medical care that they need to get the medical treatment they need to recover from their injuries and get back to work.
If coverage of any of your medical care is denied, or authorization for medical care is refused by your employer or its workers’ compensation insurance company, you should consult a knowledgeable attorney to assist you in preparing your case for arbitration your claim.
The insurance company can compel you to attend an independent medical evaluation (IME) with a doctor hired by the insurance company to provide a medical opinion on the employer’s behalf. The IME doctors earn vast amounts of money from insurance companies in exchange for providing the insurance company with medical opinions that will help the insurance company defend and defeat a workers’ claim.
The employer or insurance company may request utilization review of the proposed medical treatment, and may refuse to authorize treatment which is not approved through the utilization review process. Utilization review is not the final decision and its decision may be reversed by the Illinois Workers’ Compensation Commission through arbitration. Consult a knowledgeable attorney to determine whether further legal action may result in approval of your medical treatment.
3. How are disputes or disagreements between an injured worker and the employer/workers’ compensation insurance company resolved in the Workers’ Compensation System?
The Illinois Workers’ Compensation Commission resolves any disputes between the injured worker and the employer/insurance company through an arbitration hearing. An injured worker should never wait to hire an attorney until a dispute arises as the facts which will be used at an arbitration hearing are being created the minute the worker is injured. Preparing a case for arbitration begins when an injured worker is first injured.
Arbitration is a legal proceeding where the injured worker, with the assistance of his/her attorney, appears before an Arbitrator for the Illinois Workers’ Compensation Commission and testifies, in response to questions from the attorneys, about the facts of the case including the accident(s), medical treatment received, and continuing problems and any other issues that may be in dispute. Documentary exhibits are submitted in support of the injured workers’ claim. Expert medical testimony may also be necessary to prove that the claimed injury is causally related to the accident. Such testimony is usually prepared beforehand and submitted at the arbitration hearing in deposition form.
The employer/workers’ compensation insurance company hires a law firm to defend the injured worker’s claim. The defense attorney may present evidence designed to defeat the injured worker's claim, by submitting the testimony of IME doctors, and may call witnesses for this purpose. The defense attorney hired by the employer/workers’ compensation insurance company has the right to ask you questions, or cross-examine you, as well. Other witnesses may also be called to testify in a case.
The Arbitrator hears older cases before newer cases. About three to four months after the hearing, the Arbitrator issues a decision. Many cases that have been arbitrated are appealed to the Illinois Workers’ Compensation Commission. Appeals to the Commission can take anywhere from eighteen months to two years to make their way through the courts.
4. Do I really need an attorney to represent me in a workers’ compensation claim?
It has never been advisable for anyone to represent themselves in a legal proceeding. A workers’ compensation claim is a legal proceeding with rules and procedures of which most injured workers have no knowledge. Insurance companies hire, and train, insurance adjusters about workers’ compensation laws and procedures, and are trained to use those rules and procedures to manipulate the injured worker’s claim with the sole purpose being to pay the least amount possible on a claim. Many of the actions taken have no apparent connection to this purpose to a person who is unfamiliar with the system.
An injured worker should always bear in mind that an insurance company’s primary legal obligation is to protect its stockholders’ money so the company can make a profit. Insurance companies accomplish this by either managing claims to steer injured workers down a road which will result in the least amount of compensation being paid, or by denying and defending claims. Unlike attorneys, insurance adjusters are not required to deal morally or by any code of ethics.
Insurance companies hire and pay defense attorneys to use their skill and knowledge of the laws to find factual, or legal, arguments to assist in defending claims and to convince the Workers’ Compensation Commission to deny a claim. The injured worker needs a knowledgeable attorney to identify potential problems and help guide the injured worker through this system. A knowledgeable attorney can help you obtain the compensation you deserve. Boshardy Law Office, P.C. has attorneys with the skill and experience to help you level the playing field and fight the efforts to deny your rights.
5. What should I do when I have been injured at work?
When you have been injured at work you should immediately notify your supervisor of the fact that you had a work accident and of the part of your body that has been injured to the best of your ability. Occasionally, an employer designates an individual to receive notice of work accidents. Under the Illinois Workers' Compensation Act an employee has forty five (45) days in which to notify his or her employer of the work accident, either orally or in writing.
***Failure to notify an employer of the work accident within the notice period will result in the denial of a claim.***
Notifying an employer merely of the existence of a medical condition is not sufficient to establish notice.
Boshardy Law Office, P.C. strongly recommends that an injured worker give notice of the accident and injury to his employer, or the person designated to receive such notice, immediately after a work accident even if the employee does not believe that the accident will result in serious injury.
When notifying your employer of a work accident, you must describe the accident fully and the area of your body that was injured.
6. How long will it take for my claim to be settled?
Generally, the length of time that it takes for workers' compensation claims to be resolved depends in large part on the severity of the injury and the length of active medical treatment. A case should not be settled before the end of medical care. Once your doctors have released you from their care, your attorney can begin preparing your case for settlement or arbitration.
There are certain factors that may delay the settlement or arbitration of your claim, including;
The impairment rating
One of the recent changes to the Illinois Workers’ Compensation Act provides that the employer may request the injured worker have an “impairment rating” at the end of medical care. The impairment rating is determined from the Rules of the American Medical Association Evaluation of Permanent Impairment, Sixth Edition.
- The impairment ratings were adopted by the State of Illinois in an effort to drive down the disability awards and settlements to injured workers.
- Impairment ratings are only one factor that the Illinois Workers’ Compensation Commission will consider, but the validity and reliability of such ratings are extremely controversial and should be contested by every injured worker.
- It may take several months after a worker has been released from medical care before such a rating is scheduled and performed, further delaying the payment of a final settlement or award to an injured worker.
- There may be further delays which might be unavoidable for the purpose of obtaining medical testimony from your treating physician or the insurance company's examining physician before the settlement or arbitration of a claim or vocational rehabilitation if the condition prevents the injured worker from returning to their previous occupation.
- Workers should bear in mind that the Illinois Workers’ Compensation System is a legal system with legal procedures which are required to be followed.
- Finally, if no acceptable settlement is offered and the injured worker chooses to present his claim to an arbitrator (judge) from the Illinois Workers’ Compensation Commission, appeals may delay a final decision. Generally, the arbitrator will issue a decision within two to three months after the date of arbitration.
- If either party finds fault with the arbitrator's decision, the Illinois Workers' Compensation Act provides a procedure to seek review (appeal) of the arbitrator's decision.
The first step in this process is to have the arbitrator's decision reviewed by a three-member panel of the Illinois Workers’ Compensation Commission.
Although additional appeals allow a workers’ compensation claim to be appealed all the way to the Illinois Supreme Court, the vast majority of claims are not appealed once the Illinois Workers’ Compensation Commission has issued its decision on review.
7. Can I afford to hire an attorney to represent me in my workers' compensation claim?
One of the reasons that personal injury attorneys are attacked by business groups is because attorneys who represent injury victims and injured workers offer their services on a contingency fee basis to injury victims whom might not ordinarily be able to afford an attorney by paying an attorney out of their own pocket. . A “contingency fee” means that the lawyer does not require upfront payment for legal representation, but rather accepts a portion of the recovery as payment for legal services.
In a contingency fee arrangement, if there is no recovery, the injured client pays no fees to the lawyer and cannot request that the client reimburse the lawyer for the costs advanced on the claim.
Insurance companies, businesses and corporations hate the fact that someone who might not otherwise be able to pay upfront for a highly skilled and experienced lawyer has the ability, because off the contingency fee arrangement to hire such a lawyer. We are proud of the fact that we provide this service to our clients and given them the power to level the playing field and enforce their rights under the law through access to the courts.
- Under the Illinois Workers' Compensation Act, attorney fees are limited to a total of 20% of the amount recovered by way of settlement or arbitration.
- Attorney fees — 20% are recoverable for disputed temporary total disability benefits and disputed medical expenses.
- Attorneys are allowed to advance payment of litigation costs for the client. Such costs include subpoenas for medical records and reports, court reporting fees, and costs associated with obtaining a deposition of a physician.
8. Is my employer required to pay me if my injury prevents me from working?
- An employer must pay the employee 66 and 2/3 of his average weekly wage while the work injury incapacitates the worker from work. This benefit is called temporary total disability (TTD).
- A worker need not be rendered completely disabled for this obligation of the employer to pay TTD to arise.
- If a worker is placed on light duty by his or her treating physician as a result of a work injury, and the employer cannot or refuses to provide light duty work, the same obligation to pay TTD arises.
- The employee must have a written “off-work” slip from his physician, or a “light duty slip” which restricts the worker's ability to work in such a way that the employer refuses to accommodate the restrictions before there is an obligation to pay TTD.
- The employee must be unable to work for at least three days before the right to receive TTD begins. After fourteen days of continuous inability to work, the employee then becomes entitled to TTD from the day after the date of accident.
- No Federal, state or social security taxes are withheld from TTD benefits.
9. Can my employer refuse to pay my TTD benefits?
The Illinois Workers' Compensation Act allows an employer to withhold TTD benefits if:
- It has a “good faith” reason to believe that the accidental injury did not occur as alleged, or;
- It has a medical opinion from a physician indicating that the condition alleged was not causally related to the work accident. *
*Merely because an employer has a medical opinion from a physician stating that the condition is not causally related to the work accident does not mean that the Illinois Workers’ Compensation Commission will accept this opinion as fact. The injured worker has the right to present medical opinion testimony of her or her own to prove the legitimacy of the claim.
An arbitration hearing process, with the appeal previously described, exists which allows for the resolution of such disputes.
If the employer is found by the Workers’ Compensation Commission to have unreasonably, vexatiously or in bad faith refused to timely pay compensation, the Workers’ Compensation Commission has the power to penalize the employer for its conduct. Such penalties may include an additional award of the amount of attorney's fees, 50% of the compensation awarded and $30.00 per day for each day that an employer withholds payment up to a maximum of 250 days.
10. I was obviously injured at work. Why would an insurance company deny my workers’ compensation benefits?
An insurance company is responsible to make a financial profit for its stockholders. An insurance company does not make a profit by paying out claims without contesting them. An insurance company receives premium payments from its policy holders, like employers, and invests the money it receives in the stock market. Insurance is merely legalized gambling. The insurance company bets that it can make enough interest, or appreciation, on the premiums that it has invested to pay any claims that it is finally forced to pay. The longer an insurance company delays paying those benefits, the more interest that the insurance company makes on its investment. The injured worker needs a qualified, aggressive law firm and attorney, with a reputation for obtaining excellent results for their clients, to force the insurance company to pay the benefits the injured worker deserves.
11. How will I be compensated for my injury?
The Illinois Workers' Compensation Act provides different methods by which injured employees can be compensated for permanent disability caused by the injury.
You should never assume that your injury has resulted in no permanent disability.
An injured worker may be compensated for permanent disability to the body part that has been injured.
There are many factors which are considered in evaluating the extent of permanent disability.
Factors considered include:
- The impairment rating.
- Whether the worker has any permanent work restrictions.
- Evidence of continuing symptoms if corroborated by the medical records.
- What is the remaining work life of the injured worker, the occupation of the injured worker and the affect on the injured worker occupation.
As noted above, the Illinois Workers’ Compensation Act now allows for the employer to request that the employee submit to an impairment rating examination.
The Illinois Workers' Compensation Commission is not bound to follow the impairment rating. The other factors are just as important in determining the compensation to be awarded to the injured worker.
Do not believe the insurance company if it is telling you that the most you can receive in settlement is the amount of the impairment rating. Such a statement is false.
Special rules exist for the compensation of a carpal tunnel injury brought about by repetitive trauma.
If the injured worker has permanent restrictions which the employer cannot accommodate and the injured worker is forced to take a job which pays less than the job at which he was injured, an impairment rating is not relevant and the injured worker is not compensated for the disability to that part of his her body that was injured. Instead, the injured worker may elect to seek what is called a “wage differential” award. A wage differential pays the injured worker the difference between what he/she would have been able to earn in the full performance of their prior job and the current earnings of the injured worker at a new job.
If the injured worker is unable to continue working, he or she may be entitled to permanent and total disability benefits. Such a finding is among the highest level of compensation awarded to an injured worker
*It is strongly recommended that injured workers not try to negotiate a settlement of their claim on their own. Always consult a qualified attorney to discuss the permanent disability settlement or award which you deserve and to determine which method of compensation will more fully compensate you for your injury. Boshardy Law Office, P.C. has a well-earned reputation for obtaining maximum awards and settlements for its clients. See our Verdicts and Settlements for a summary of some of our many successful cases.
12. What if my doctor releases me from care with permanent work restrictions and my employer will not let me return to work in my previous occupation?
If the permanent effects of the work injury prevent the injured worker from returning to his or her previous occupation, the employer is obligated to provide vocational rehabilitation to the injured worker.
TTD or maintenance benefits are required to be paid while the injured worker attempts to re-enter the work force under the permanent work restrictions.
Vocational rehabilitation may include:
- Assistance from a Certified Vocational Counselor in finding a new job, or;
- Vocational retraining if after a diligent and good faith job search the injured worker cannot locate suitable employment.*
*Retraining may not offered or awarded to an injured worker whose remaining work life does not justify the expenses of the retraining, or if there are other factors which argue against retraining.
13. What happens if I cannot find work within my permanent restrictions and vocational retraining is not awarded to me?
If the injured worker has conducted a diligent, yet unsuccessful, job search and vocational retraining is not deemed to be an option, the employee may be found to be permanently and totally disabled.
If you are unable to locate a permanent job when you have permanent restrictions, consult a qualified attorney to assist you as your future earnings are too great to leave to chance or the “fairness” of an insurance company.
14. Apart from my rights under the Illinois Workers' Compensation Act, are there any other rights that I may have?
If a worker is injured by an entity that is not connected with the employment, the worker may have a "third party" claim.
Examples of common third party claims include workers injured in automobile accidents during the course of their employment or injury occasioned by a defective product.
Always consult a qualified attorney to determine whether you may have a third party claim.
An injured employee may also be eligible to receive Social Security Disability benefits if the employee expects that his injury will prevent him from working for an extended period of time.
Additionally, an employee may have additional rights under the Americans with Disabilities Act. Always contact a qualified attorney to determine whether the Americans with Disabilities Act may provide additional protection.
15. How do I hire an attorney to represent me?
You can contact John Boshardy at 217.544.8000, 800.595.5345 or by e-mail at firstname.lastname@example.org to discuss how Boshardy Law Office, P.C. can help you put your life back together.
WARNING: The above constitutes general rules which may or may not apply to your unique situation. It is impossible to adequately address all of the potential factual scenarios which may arise in a workers' compensation claim in the questions addressed here. You should consult a qualified attorney to determine your rights under the Illinois Workers' Compensation Act.