Tech 435

1. Tech 435 Illinois Worker’s Compensation System: Understanding It

2. Illinois Worker Compensation Law • 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”

3. Overview and Definition of IL. Worker Compensation Benefits • There are three main benefits: • Medical, • Temporary Total Disability and • Permanent Partial Disability.

4. 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).

5. 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.

6. 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.

7. Permanent Disability (PD) is awarded in 6 ways • Serious &Permanent Disfigurement • Specific Loss • Nonspecific Loss • Wage Differential Benefits • Total and Permanent Disability • Death

8. 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.

9. 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.

10. 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.

11. 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).

12. 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.

13. 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.

14. 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

15. 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.

16. 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.

17. 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.

18. 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).

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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).

26. 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.

27. 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

28. 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.,

29. 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

30. 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

31. 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

32. 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

33. Casual Connection • No Requirement of Medical Evidence • Medical Opinions and Complex Issues • Need to Dispute the Petitioner • Battle of the Experts • Treating Physicians • Dual Choice of Physicians • Esteemed Physicians • Independent Medical Examination • Sending the Treatment Records to Another Physician

34. 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