Law Offices of Steven J. Flexman

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FAQs – Worker’s Compensation

Why can’t I just handle this myself? Why do I need a lawyer to talk to the insurance company, since they are already paying my time off?

People who try to handle their cases on their own are attempting to deal with a trained professional adjuster who knows the ins and outs of handling a claim. Their job is not to pay you what you are due. Their job is to resolve a claim at the lowest amount possible. This means they frequently ignore overtime pay in calculating your weekly payments, they try to get you back to work as soon as possible regardless of your health, they send you to their doctors, and they send their nurses to talk to your doctors. Shouldn’t you also have a trained professional in your corner? If you do not, how will you respond to the insurance company’s request for a statement? How will you know if you have a right to a settlement? How will you know if what the insurance company is offering is fair? Are you able to read medical charts and understand the legal significance of what the doctors put in their charts?

By what date am I required to file a claim with the Illinois Industrial Commission?

The statute of limitations determines when you must file your claim with the Illinois Industrial Commission. You must usually file within 3 years of the “injury”. There are exceptions to this rule such as when an employer is paying “compensation”. However, to apply these rules, one has to know what is meant by “injury” and “compensation”. For instance, where one is injured by repetitive motion (for example by typing or operating a machine) the date of “injury” is not as simple to determine as for a sudden accidental injury.

In addition to the filing requirement, the Worker’s Compensation Act requires that the employee give fairly quick notice to the employer of the injury. Thus an injured worker should always obtain prompt legal advice on the notice and filing requirements in his/her case.

If you handle my case are you going to be talking to my boss?

No. In a worker’s compensation case, our only contact with the employer is to mail them a copy of your claim. Thereafter we exclusively deal with the employer’s insurance company or adjusting company. Sometimes the insurance or adjusting company hires an attorney, and then we communicate with the attorney.

Do I have to see the company doctor?

The Worker’s Compensation Act allows an injured worker to choose his own doctors, within limits. Thus you do not have to seek treatment with the company doctor or at a clinic that the company sends you to. However, the company, their insurance company, or their lawyers can send you to an IME (Independent Medical Exam). This is an exam (not treatment) by a doctor of their choice.

Can I see any doctor that I want?

An important right of the worker is that he can choose his own treating doctor. The worker can also see any doctor within a chain of referrals from that first choice of doctor. Finally the worker can make a second choice of doctors and see any doctors within a chain of referrals from that second choice of doctors. Difficult questions can arise with regards to doctors from company clinics (generally not considered to be the worker’s choice), doctors in emergency rooms, and doctors seen after another doctor says that the worker needs no further treatment. These questions are very important because if an insurance company does not agree that a doctor falls within the worker’s proper choices or referrals then the insurance company will refuse to pay for the doctor’s treatment or anywhere that that doctor sends the worker for further care. Also, remember, all treatment, regardless of who it is with, must be reasonable and necessary.

My Doctor says I am 10% disabled. Does that determine the amount of my award or settlement for my injury?

No. If a doctor makes a determination he is probably using the AMA guidelines. Illinois does not follow these guidelines in worker’s compensation cases. In Illinois, the Industrial Commission makes the final determination of the extent of any permanent injury. AMA guidelines, social security determinations, and private disability insurance determinations are not considered.

Do I have to be on the clock for my injury to be covered by worker’s compensation?

No. Although the law requires an injury to “arise out of” and “in the course of” one’s employment, injuries occurring before or after work hours may be compensable. For instance, injuries occurring while entering one’s place of employment are frequently compensable, depending on exactly where the injury occurred, whether the employer controlled that area, whether the area was open to the public, and what the cause of the injury was. Also, injuries while traveling to work can be compensable when you are traveling to a place that is not your normal place of work, or where you are running an errand for your employer outside the normal workday. Injuries while traveling overnight are usually also compensable.

I get overtime pay, or shift differentials, or a bonus, but the insurance company is paying me weekly worker’s compensation payments of 2/3 of a 40 hour week. Can they do this?

Determination of your weekly benefits (called temporary total disability or TTD) is an area where the worker’s compensation insurance companies frequently take advantage of injured employees without attorneys. Generally they determine your average weekly wage merely by taking your non-overtime hours for the last year and dividing by 52 weeks. They conveniently ignore all overtime hours, all shift differentials, all bonuses, and they divide by 52 even if you worked less weeks than that. Remember, the insurance adjuster’s objective is to save money for the insurance company, not to protect your rights. Call an attorney with the facts of your case to get proper advice.

I have talked to the insurance adjuster, who seems very nice, and very willing to help me out. Can’t I trust her/him?

No. The insurance adjuster is an employee of the insurance company and is acting on behalf of the person or corporation that you are making a claim against. Their job is not to protect you. Their job is to protect the interest of the person that you are making a claim against! Further, their job is to save money for their employer, the insurance company. Why are they being so nice to you? Think about it. They want you to accept what they say. They want to stop you from getting proper legal advice.

If someone other than my employer or co-employee is at fault do I also have a case against them and their employer.

Yes. If you are injured on the job due the actions of another company or that company’s employee, you can file your worker’s compensation claim and make a personal injury claim against the other company or person. This frequently occurs on construction jobsites, where numerous subcontractors are on the jobsite. Also, a construction project’s general contractor can frequently be held responsible for injuries occurring on the jobsite.

Other areas where there are frequent overlapping worker’s compensation claims and personal injury claims are auto accidents and also falls that take place outside the employer’s place of business.

Can I make a claim for an injury that aggravates a pre-existing condition.

Yes. This is a frequent occurrence, especially in worker’s compensation. The most frequent cases involve a worker with a bad back. He reinjures it lifting something at work. He now has a new worker’s compensation case. The fact that there was a pre-existing condition or injury does not eliminate his claim. Nor does the fact that he made a prior worker’s compensation claim for that injury. However, the pre-existing condition may make proof of the claim more difficult. Important facts include the date of the last medical treatment before the work injury, the diagnosis at that time, and the symptoms at that time. Each of these cases is very unique. The strength of your case depends on the facts of your case. Consult with a lawyer to determine whether you have a claim.

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