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Work Comp Chicago, Illinois Workers Compensation Attorneys BASIC RULES & BENEFITS ILLINOIS WORKERS COMPENSATION
· Necessary Medical Care
· Temporary Disability Benefits (2/3 of Wages)
· Compensation For Permanent Injuries
Intro: This short outline will review basic rights provided under Illinois Workers’ Compensation. Individuals injured at work while performing work related duties have rights to (1) related medical care, (2) payment of disability benefits during temporary and total disability and (3) payment for any residual permanent disability or disfigurement from the injury. Disclaimer: These paragraphs should be considered as a basic overview of rights and provisions and should not be taken as a substitute for legal advice. Each claim requires a detailed review before specific legal advice can be given.
I. Access To And Payment Of Related Medical Care
A. Reasonable and Necessary Care
An injured employee is entitled to payment for 100% of "reasonable" and "necessary" related medical care subject to the limitations of the Medical Fee Schedule. This includes reimbursement for any prescription expense, appliances or prosthetics necessary to alleviate the effects of the injury.
The medical care must be both "reasonable" and "necessary" in order to qualify for payment or reimbursement. The Illinois Workers Compensation Act does not provide for experimental, unproven or unnecessary procedures. The employer is only required to pay for medical expense which is necessary to cure or alleviate the effects of the injury. This does not include measures which are purely “palliative” or designed to simply relieve symptoms.
For example, it is quite common for the employer to limit chiropractic care or physical therapy to 2 to 3 months following a muscle strain type injury. Illinois will generally follow established medical guidelines for determinations of necessary medical treatment for any particular injury or given diagnosis. Once the medical treatment has plateaued to the point that any further ongoing care will not achieve any further medical improvement, the condition is said to have achieved "MMI" or maximum medical improvement. Additional medical care may or may not be available after a medical finding of MMI depending on the nature of the particular injury or given diagnosis. The American Medical Association has recognized 2 general principles regarding the definition of MMI: (1) Where all reasonable therapeutic interventions designed to improve the condition have been offered; and/or (2) Where the patient has reached a stable and stationary medical condition in which permanent impairment is not expected to significantly change over the ensuing 12 months. Generally, treatment will not be authorized under workers compensation after a worker has reached the 1st definition whereas, additional medical care may still be necessary and paid for under the 2nd defition although TTD may not be available in either case because the question now becomes one of permanency or the need for assessment of the permanent nature of the injury.
B. Choice of Physician
Under the Act, the employee is limited to his or her independent choice of 2 physicians. Either of the these 2 independent choices of doctor may refer the employee to other doctors or specialists as necessary for x-rays, medical testing, follow-up care, surgery or consultation. Emergency medical care or visits to a hospital emergency room do not qualify as a choice of physician, however, undertaking follow-up care at the emergency facility or medical center will be considered a choice of physician. The employer is not required to pay for any third choice of physician not in the chain of referral. This provision is largely designed to prevent doctor shopping.
C. Independent Medical Exam
At any point during the course of medical care, the employer is entitled to obtain an examination (IME) by a physician of their choosing to determine the ongoing need for medical care or the current state of temporary disability. These examinations are often made for a determination whether the employee can or cannot return to work. Sufficient monies are to be advanced to defray travel expense to and from the employer’s examination.
Often a dispute will arise between the opinion of the treating physician and the independent medical examination (IME) opinion of the employer regarding the ongoing need for medical care, current state of disability and whether surgery is reasonable or necessary. The employer is entitled to rely upon the opinion of their physician to terminate payment for ongoing medical care or to refuse payment for requested surgery. In the event of a dispute in medical opinion, these disputes are commonly submitted to the Illinois Workers’ Compensation Commission. An arbitrator specifically designated by the Commission is assigned the duty of resolving disputes between conflicting medical opinions. The arbitrator is free to adopt any of the opinions of any of the treating physicians or that of the employer’s IME.
D. Utilization Review
Recent changes adopted in the Workers’ Compensation Act in 2005 give the employer the additional right to "Utilization Review" or a medical record review by a doctor of equal standing in what is known as "peer to peer" review on or after July 20, 2005. The right to ongoing care for additional medical treatment can be disputed based upon the utilization review opinion. These disputes may also require submission to arbitration to resolve any conflict of opinion. Utilization review can be conducted in advance of a proposed procedure, “prospective review” or after the fact in a “retrospective review” to determine the reasonableness or necessity of medical care.
E. Medical Invoices and the Medical Fee Schedule
Prior to February 1, 2006, employers could dispute the amount of a medical bill as not "reasonable" or not "usual and customary". This left many injured workers responsible for payment of outstanding balances owed on medical invoices in excess of payments made by the workers compensation insurance carrier. Employers were not required under the Act to pay "unreasonable or excessive" medical invoices and disputes often arose. The reasonableness of the amount of disputed medical invoices often needed to be submitted to arbitration before the Commission to determine the "reasonable" amount of the medical charges for medical treatment incurred prior to February 1, 2006. After new statutory amendments, as of February 1, 2006, the "reasonable" amount for payment of a particular medical invoice for a work-related injury under the Illinois Workers Compensation Act is now to be determined under the Illinois Workers Compensation Medical Fee Schedule. The medical fee schedule sets forth caps or limits for reimbursement or payment of medical invoices based on the particular medical procedure code, the date of service and the location (zip code) where the medical care is provided. (See) Medical Fee Schedule
II. Temporary Disability Benefits
All injured workers are entitled to payment of temporary disability benefits during a period of total disability following a work-related injury. Disability benefits are payable at 66 2/3 % of the workers’ “average weekly wage" subject to certain maximum and minimum limits set forth in the Act. Benefits are not payable for the first 3 days lost time following an injury unless the employee is required to miss 10 or more working days as a result of the injury. After 10 days lost time from work the employer is required to make up payment for those first 3 days of lost time.
All benefits under the Illinois Workers Compensation Act are based on a formula using the workers' average weekly wage. The average wage contemplates the average actual earnings for the 52 weeks of employment immediately preceding the date of accident. Overtime earnings are not specifically included under the Act however, where the overtime is "mandatory" or regularly consistent, the overtime hours may be included in regular earnings at the straight time rate of pay. The calculation of average weekly wage is often hotly disputed and may need to be submitted to arbitration where a dispute arises which cannot be resolved upon review of wage documentation. Where it is impossible to calculate the 52-week average wage given the shortness of the employment, special rules apply.
As long as a temporary work disability is related to the work injury, the worker is entitled to receive payment for "temporary total" disability. It is the workers’ obligation to provide documentation from a physician establishing the periods of temporary total disability to the employer. This is commonly supplied by way of an "off work" slip or physician's note. Most employers have a policy for terminating employees who fail to show up for work or fail to provide documentation to establish a legitimate basis to be off work. Any light duty release to return to work should be provided to the employer. Most Workers Compensation adjusters cannot issue temporary disability benefits unless they have proper current medical documentation in their file to establish "current disability". If documentation of disability is not forthcoming, issuance of disability benefits may be delayed or denied.
A. Light Duty Release to Return to Work
In the event that the physician issues a release to return to light-duty work, the employee must notify his or her employer. The employer will usually provide light duty work within the restrictions if available, to prevent further time off and disability payments. If the worker is returned to light duty work at a reduced rate of pay, the Act now provides for a "temporary partial" disability benefit to offset any temporary reduction in pay. Where the employer is unable to accommodate the light duty work restrictions, the entitlement to ongoing disability benefits continues so long as the worker is temporarily disabled from his or her regular occupation. However, the failure to report for light-duty work, where such work is available, will result in the denial of benefits and may result in termination.
B. Discharge from Medical Care and Permanent Restrictions
Once a worker has recovered from the injuries to the extent medically possible, the disability is no longer considered to be "temporary" in nature. Once a condition has plateaued or stabilized to the extent medically possible, any remaining disability or restrictions are considered to be "permanent" in nature. In this case, the worker is no longer entitled to "temporary total" disability benefits. If an employer is able to accommodate the permanent restrictions in the same job position or at the same rate of pay, these permanent restrictions are considered in making an assessment of compensation for a % of permanent disability to the affected area of the body. (see permanent partial disability below)
Where the worker is unable to return to regular work or unable to return to work at a reduced rate of pay, the law may provide for ongoing "maintenance" disability benefits during a period of vocational retraining or job placement. Where there is a permanent reduction in wages due to the permanent restrictions, the law provides for a wage supplement to offset the effects of the injury.
III. Compensation For Permanent Injuries
A. Permanent Partial Disability
Where the worker is able to return to regular work but retains permanent limitations or restrictions as a result of the work injury, Illinois law provides for an assessment of permanent partial disability or a % impairment or loss of the particular body part affected.
For example, an arthroscopic knee surgery which results in permanent disability is often compensated at 15% to 20% loss of use of the leg. In cases of permanent injuries of this nature, Illinois law uses a formula for compensation based on the average weekly wage and based on a schedule for the value of each body part. Back injuries or injuries to internal organs are compensated based on a loss or impairment of the whole person rather than a scheduled body part amount. Hearing and vision loss are subject to their special calculation methods.
B. Partial Return To Work at Reduced Wages
Where the worker is able to return to work at a reduced rate of pay due to the disabilities or limitations from the job injury, the law provides for a wage supplement or a wage differential benefit to compensate for the partial loss of earnings. Wage differential benefits are calculated based on 2/3 of the difference between what the worker “would” have been able to earn in full performance of his regular occupation and what he or she is capable of earning in the reduced capacity.
C. Permanent Total Disability from Work
Where the worker is totally unable to return to any employment at all as a result of the injury and remains permanently and totally disabled from all work, Illinois law provides for a full disability pension benefit based on 66 2/3 % of the average weekly wages. Where the worker is able to return to limited work but due to the results of the injury, the only jobs they are able to perform are so limited that no stable labor market exists for a person of like age, experience, training, restrictions and education, they may qualify for an "odd-lot" premanent total disability benefits under Illinois law. Awards for permanent total disability pensions carry open medical rights for injury related medical expense and provide for cost of living adjustments. Permanent total disability benefits are payable for life given that Illinois does not have a mandatory retirement age.
The ability to return to work or inability to return to work is most often a medical question disputed by the physicians involved and the medical determinations of disability are usually supported by a functional capacity evaluation. Where a worker is claiming total disability benefits based upon the lack of a stable job market, vocational labor market specialists are often consulted for their expert opinion and the worker must usually engage in a extensive but unsuccessful search for employment. In these type of cases, it is not disputed that the worker is capable of some employment but rather that no stable job market or labor market exists for a person of like age, education, training, skills and physical restrictions.
IV. Time Limitations, Social Security, Personal Injury
A. Time Limitations
A claim for Workers Compensation injury is subject to certain "notice" requirements under the Act and subject to a statute of limitations period. Notice of an accident should be given the employer as soon as practical.
A claim for benefits may be disputed or denied for the lack of notice of accident within 45 days of injury. Generally, the receipt of some type of defective notice will not defeat a claim for benefits unless the employer can show that the defective notice somehow resulted in substantial prejudice to defense of the claim. Generally, the statute of limitations time limit for filing a claim is 3 years from the date of accident or 2 years from the last payment of compensation, whichever is later. Special rules apply in cases of asbestos or radiological exposure. Special provisions apply for cases involving occupational diseases like black lung or silicosis. Claims that are not brought in a timely fashion within the statute of limitations are barred by the expiration of time and all benefits will be denied.
B. Social Security Disability
It should be noted that where, as a result of the injury, the worker also qualifies for Social Security disability benefits, Social Security provides for a credit or offset or reduction in the monthly benefit to the extent of workers compensation benefits received.
Social Security will pay up to 80% of the former monthly income subject to a rather low monthly benefit maximum. The general rule is that the combination of benefits between both Social Security and Workers Compensation benefits cannot exceed 80% of the workers' former monthly income. Special designation and funding of expected future medical care expense is now required in all Workers Compensation settlements for Medicare eligible beneficiaries or expected beneficiaries pursuant to Medicare's guidelines. (See ) Work Comp and Medicare C. Personal Injury - Workers Comp Lien Reimbursement
Where the work related injury is caused by the negligence of a 3rd party other than a co-employee or the employer, a common-law claim for personal injury may be pursued against that 3rd party. Again, subject to many exceptions, the common rule is that the employer is entitled to receive a reimbursement or recovery of 75% of the workers compensation benefits paid out of any recovery received from the 3rd party personal injury suit, less a proportionate share of costs and expenses. It should be noted that all personal injury claims are governed by a much shorter time limit, generally 2 years from date of injury, for brining an action for injuries. Special and even shorter rules apply for actions against state governmental agencies, local, county and municipal entities. Failure to bring a claim within the set time limits will bar any recovery. Conclusion:
Most contested disputes that arise in Illinois workers compensation are the result of conflicting medical opinions concerning the nature or the extent of the injury, disputes over wages, disputes involving the ability or inability to return to work and disputes concerning medical causation. These disputes are often resolved by the attorneys in a negotiated settlement, resolved with the aid of pre-trial recommendations from the arbitrator assigned to the claim or by submitting the claim to trial and appeal before the Illinois Workers Compensation Commission. There is no substitute for qualified, experienced legal representation in Illinois workers compensation matters. The many rules and case law decisions that developed over the past many years present a legal minefield that is financially dangerous for unknowing attorneys, injured workers and employers alike. For legal assistance: Contact a Chicago Workers Compensation Attorney Back to Home (c) 2007
Work Comp Chicago, Illinois Workers Compensation Attorneys
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