Frequently Asked Questions
The answer is yes, you might—so it is important to pursue the matter by talking with an attorney.
Not every injury that happens at work or on the clock is your employer’s responsibility, but just because you are off the employer’s premise or off the clock doesn’t automatically mean that your employer is not responsible. There are many factors that must be taken into account when addressing whether an injury is work related. Don’t fall for an insurance adjuster telling you that because your injury was not onsite or on the clock that it isn’t their problem.
Even if everything seems to be going well right now, you will inevitably need an attorney. Don’t wait to get one until after a problem occurs and risk a situation where an attorney cannot fix the harm that has been done. You need protection against an insurance company who cares more about their bottom line than an employee’s health and well-being. Don’t wait—get an attorney right away so that we can make sure you are protected, and can prevent and address issues before they become irreversible problems.
In Illinois, an insurance adjustor does not have an obligation to advise the injured worker of the law. In fact, the insurance adjustor’s duty is to the insurance company and the employer, not the injured worker. If you proceed without an attorney, you have nobody who is obligated to advise you and represent you. You are out on your own. This is never a good situation, so that is why 97% of the people who have workers’ compensation cases in Illinois hire attorneys.
A lot of employees are going to be exposed to coronavirus or COVID-19 while working; if that happens, you should contact an attorney. If you test positive and here's why sometimes, if you're exposed, you may have a compensable work comp claim. So the way I look at this is for employees who are our frontline workers, so these are our medical providers. These are staff at hospitals and medical facilities. These are our firemen policemen anybody on the front line. They're at a really high risk of getting COVID-19, and if they do get it, obviously they can't work, but they're gonna have a compensable work comp claim because their exposures most likely happen while they're working.
Beyond those people, let's say you're not one of the frontline workers, but you're working for an essential business that's still operating, well if you get COVID-19, you may also have a compensable work comp claim here in Illinois. It's going to depend on what level of risk you are at, so there's a high risk that's the frontline workers right. There's also medium risk. This would be people who are working for essential businesses who are exposed to the public. So our grocery store workers, our gas station attendants our public transportation people, these workers are having contact with the general public as required by their work. If they are exposed and contract COVID-19, they also likely have a compensable work comp claim.
Now, the last category of workers would be what would be considered a low-risk worker. These are people who are working in a job where they really aren't having any contact with the public. They're going into a secure environment where they're not even having a lot of contact with their co-workers for those employees we're going to have to ask the right questions because yes they may have a compensable work comp, but we're gonna have to show that their risk of exposure was higher than the average public, which means if you had the same exposure as going to the grocery store once every few weeks, it might not be compensable that's where it's most important to talk to an attorney who's going to ask you the right questions to determine whether, in fact, you have a compensable claim the.
The last thing I'd say about it is a lot of employers are going to kind of take a bright-line rule some employers are just going to accept all these claims as compensable and pay them off which is great, but it's still a good idea to have an attorney because they may not pay you what you're entitled to some employers are going to deny all of these claims and those are the ones that definitely
are going to need to seek legal advice if they can track COVID-19 while they're working.
If you've tested positive for COVID-19, you should not go to work. Now, under the Families First Coronavirus Response Act, if you test positive, then you need to notify your employer, and you need to self-quarantine for whatever period of time your doctor has said. Now, if you work for an employer that has less than 500 employees, you may be entitled to up to 2 weeks of pay during that time under the Emergency Sick Pay Act. After that, if you need to be off longer, you could be entitled to some additional benefits or even unemployment benefits, so if you test positive, you should notify your employer and stay home.
If you work for an employer who's requiring you to come into work, but you don't think that they're an essential business, then if you don't show up, you're not going to get paid, and you might jeopardize your job.
The better approach to this would be every local government at the city and county level has established a way for you to contact them and to make a complaint about whether your employer is considered essential or not.
For example, here in Winnebago County, the Winnebago County Health Department has set up an email address, and you can actually email them or call them to make a complaint that your employer is operating when you don't think they're essential. According to the governor's shelter order, the county then will investigate, and if they agree, they'll issue what's called a cease letter telling the employer they need to shut down. If the employer then shuts down, you don't have to report to work.
Now, keep in mind if you don't have to report to work, you might actually be entitled to up to two weeks of emergency sick pay under the Families First Coronavirus Response Act. If you aren't entitled to that because it only applies to some employers, you are able to use your accrued vacation or sick time or other paid time off, and after that, you may be entitled to unemployment benefits, as well. So, the best approach is not simply to not go into work, but instead file a complaint if the business is shut down because they're not essential. You might be entitled to get paid during that shutdown.
No! In fact, if the investigator tricks you into giving a taped statement, the investigator may be guilty of a Class IV Felony. It is never advisable to give a taped statement to anyone, especially the insurance company investigator. If you recall, the person that controls the question, controls the answer. The investigator knows what the law is and can trick someone into giving an answer which gives the impression that the injury is not work related when in fact it is. Do not give taped statements.
No! In fact, never sign such a release that allows the insurance company to discuss matters with your doctor without you present. You would have no control over what information the insurance adjustor or an agent would be giving your doctor. Most insurance adjustors and agents are honest but there are many of them out there that will give misleading information to the doctor that you would be unaware of which could greatly alter your treatment plan. Therefore, never allow this type of conversation to take place behind your back. If they want to talk to the doctor, it needs to be in writing and a copy sent to you or your attorney.
A workers’ compensation case generally is resolved shortly after the individual has finished treatment. Once the injury from work reaches a healing plateau, the attorney can start moving the case toward settlement. On average, a claim takes 1.6 years from the date it is filed to settlement.
If you work around chemicals and develop lung problems or rashes, it is very important to get the name of the chemical that you work around and, if available, get the MSD sheet. The MSD sheets should be available to you. If they are not, you can get them online from the name of the chemical. More likely than not, you will need an expert witness or an attorney to help tie this case up. It would certainly help if you have the MSD sheets.
Both employers. If someone is working for a temporary agency and is injured while working at the company that the temporary agency sent the person to for work, both are technically responsible. This is called “joint and several liability”. However, the temporary agency usually has a contract with the company where the worker is injured where the temporary agency will assume responsibility for all work injuries.
No! An insurance company does not have to offer settlement to any individual who is hurt at work. In fact, 97% of the cases that are settled involve attorneys for the injured employee. The 3% who receive offers from insurance companies usually do not receive a full and fair value for their claim. This is because under IL law, the insurance company is not obligated to make an offer. The insurance company may make an offer to keep someone from going to an attorney to get full value.
Two weeks, sort of. The question often arises as to how soon weekly benefits must start after a person is injured. Technically speaking, the insurance company is supposed to pay within 2 weeks or state in writing the basis of their non-payment. Often they fail to do this unless someone is represented by an attorney.
Section 8.1(b) of the Illinois Workers’ Compensation Act provides that disability would be based upon the AMA impairment rating, the age of the injured worker, the occupation of the injured worker, the impact an injury will have on an injured worker’s future earnings, and the medical records. No one factor carries greater weight, and it all must be taken into consideration. Do not let anyone say the AMA impairment rating does not count.
Yes! Even after you punch out, you may be covered by workers’ compensation laws. The law states that for an injury to be work related, the injury must arise out of and in the course of your employment. “In the course of” usually means that you are on the clock, but not always. A person can be asked to stop at the hardware store on the way home from work to pick up some tools needed at work and have an accident. This would be work related because the accident was in furtherance of the employer’s business. Therefore, it is not necessary that you be technically on the clock for an injury to be work related.
The injury also has to “arise out of”. This is a very confusing concept. “Arising out of,” means that the injury must come from a risk peculiar to one’s employment. These are very difficult questions to answer. Many people mistakenly believe that if they are at work and they get hurt, that is all that is needed. This is often how people get trapped by insurance companies during taped statements. For example, the mere act of bending over at work is not work related. If a person herniates a disk while bending over, the Illinois Appellate Court says that the herniated disk is not work related. An insurance investigator could take a taped statement and ask the individual how they got injured. The individual could honestly respond “I was bending over at work when I hurt my back.” The investigator most likely would not ask follow up questions because he or she had enough to deny the claim. The individual may have been simply bending over at work in an awkward position with a 50 pound box in their hands and failed to mention these very critical aspects of the event. Therefore, be very careful when talking to anybody from the insurance company.
Yes! Employees who have to travel have special protection. This is because most of their time spent away from home base is in the furtherance of the employer’s work, including some recreational activities while away from the actual tasks. For example, a traveling employee who slips and falls in a hot tub may have a viable workers’ compensation case for the slip and fall because they are a traveling employee.
Possibly. If you smoke and you have to go outside to smoke during your break and are injured while outside, most likely, this injury is work related under the Personal Comfort Doctrine.
The value of a claim depends upon the extent of the injury and the individuals’ average weekly wage. There are many rumors about how much a case is worth. Most cases are settled without trial. However, it is the threat of trial that causes a case to settle. Attorneys Jim Black and Tracy Jones maximize the trial risk for the insurance company forcing them to offer top settlement dollars before trial.
Seldom does an insurance company make an offer to an individual not represented by an attorney. A pro se offer as they are called are generally far less than the case is truly worth. Of the fifty to sixty thousand cases filed each year before the IWCC, all but 3% have attorneys. The 3% who proceed without an attorney are at the mercy of the insurance company. It is not the insurance company’s duty to make a fair offer to the injured worker. The insurance adjustor’s job is to protect the insurance company’s dollars. Generally an injured worker must hire an attorney to get a fair offer.
When a doctor has taken you off work due to your injury or prescribed necessary medical treatment for your injury, the insurance company is to pay the injured worker temporary total disability benefits and to authorize treatment as prescribed. The insurance company often fails to meet these obligations. Black and Jones Attorneys at Law will file a Petition for Immediate Hearing/19b with the Illinois Workers’ Compensation Commission to get each client the benefits and treatment he or she is entitled to under the Illinois Workers’ Compensation Act. If you are not receiving your benefits or necessary medical treatment, call Black and Jones immediately to initiate the appropriate paperwork.
Section 12 of the Illinois Workers’ Compensation Act gives the insurance company the right to have an injured worker examined periodically by a doctor of its choosing.
Some cases must be tried especially those that are disputed. It is the threat of trial that moves a case to settlement. If an insurance company is afraid of losing at trial, they will settle. If there is no chance of going to trial, the insurance company will not make a reasonable settlement offer. Black and Jones advance cases to trial to force the insurance company to make a fair settlement offer.
Unlike television, the judge does not make the decision at the end of the trial. The judge has 45 days within which to issue his decision. His decision is then sent to both attorneys who have 30 days within which to file an appeal. A little over half of the cases that go to trial are appealed. If appealed, it generally takes one to one and a half years more to resolve the claim. For this reason it is best to use the threat of trial rather than an actual trial to resolve the case.
1. The injury must have happened in the course of employment. This is the one most people believe is all that is needed. You are injured while on the clock, therefore it is work-related; this is not the law.
2. The injury must also arise out of your employment. There must be some risk associated with the employment. Tripping over your own two feet generally does not constitute a risk peculiar to your employment unless your employer sets things up so you must rush.
A local employer provides a very short lunch period. Individuals only have 15 minutes within which to eat their lunch. Our client left his workstation and went to the vending machines to get some snack food to supplement his lunch. The vending machines were empty. At that point, he had two choices; go back to his workstation without finishing his lunch and get there in a timely fashion, or race to the next nearest vending machines. He chose to race and tripped over his own two feet, breaking his hand. The claim was denied.
The Illinois Workers’ Compensation Commission agreed that because the employer put such heavy rigid rules down and did not provide adequate time for an individual to get supplements for his lunch, that the rushing and tripping over his own feet were indeed work related.
For a fall at work to meet the two prong test and be work related is very fact sensitive. What the injured worker may see as insignificant may be the fact which changes the event from being not work related to being work related. If you suffer a fall at work, give notice to your employer of the event and see legal counsel right away. Do not give a taped statement.
Two pending cases involve staring at lights or working in the bright sun. A doctor has tied up these work activities as placing an individual at greater risk causing eye injury. These cases are proceeding to the Illinois Workers’ Compensation Commission.
Upon further investigation, it was determined that at the top of the stairs was a wastebasket that was overflowing with milkshake cups. It was more likely true than not, that what was viewed on the video tape was not some sort of personal problem with the knee giving out, but rather the individual’s foot slipping because of the milkshake caught on the bottom of his foot. The case was denied and ultimately resulted well into a six-figure payment at settlement.
Temporary total disability benefits are paid at 66 2/3% of your average weekly wage. Your AWW is the average earnings over the 52 weeks before your injury. Overtime, if it is regularly worked or mandatory is considered, but at straight pay. Some bonuses also count.
In addition to that, if you work a second job and your employer or supervisor is aware of it, then your AWW should also include the wages from that other job. Calculating your AWW and TTD rate can be tricky. Insurance companies have an incentive to minimize that number since it would reduce what they must pay you. Don’t get taken advantage of. Black & Jones has decades of experience calculating AWWs, and we will fight to get you paid what you are owed.