Archive for the ‘Uncategorized’ Category

Common roadblocks employers and insurance companies use to limit your workers’ compensation rights

Tuesday, July 5th, 2011

Illinois workers injured on the job have the legal right to obtain workers’ compensation benefits. Illinois is a no-fault system, which means you are entitled to coverage for medical expenses and lost wages regardless of who caused your work-related injuries. You obtain these benefits exclusively through the workers’ compensation system.

Despite this straightforward legal process, some employers and insurance companies that provide coverage for workplace injuries still throw up roadblocks to recovery. Employers do this primarily to avoid insurance premium increases, and carriers are motivated to avoid payments so they can increase their profits.

If you have been injured on the job, you need to be aware of the potential tactics that could be used to block or limit your benefits. Generally speaking, employers and carriers can deny, delay, and defend against your claim for benefits.

Specific roadblocks you might face include:

1. Pressure tactics. Even if your employer insists that your injury is not disabling or related to work, you should still file a claim for workers’ compensation benefits immediately after you are injured. You should let the system play out. But only you can trigger the process by reporting the injury to your employer and filing a claim.

2. Denial. After you have filed a workers’ compensation claim, your employer and possibly its insurance carrier might deny that you were hurt on the job. This is a question the workers’ compensation system is designed to resolve. Don’t be intimidated. Important steps for you to take include: obtaining a copy of your workers’ compensation claim at the time you file it; keeping all medical records related to your treatments for the work-related injuries; and always providing truthful, thorough and consistent descriptions of your work-related injuries and their effect on your health. Consulting with an experienced attorney will help you to know your rights and to take whatever steps are necessary to protect them.

3. Demanding that you undergo an independent medical examination. Employers have the right to request that you be seen by a medical doctor. These examinations are meant to assess your injuries. While you should cooperate and attend the examination, under Illinois law you have the right to seek treatment from any physician of your choosing. Don’t be misled into believing you can only be treated by a medical care provider chosen by your employer.

4. Insisting that you submit a detailed recorded statement to an insurance adjuster. Employers who do this are probably looking to use your recorded statement as a way to possibly contradict you at a later time in an attempt to undercut your credibility. Don’t provide a statement until you consult with an attorney. Under Illinois law, your employer can ask questions and make you file a written report, but it cannot force you to give a recorded statement.

5. Telling you to use your health insurance. Your employer may try to steer you toward using your personal health insurance knowing you could say your injuries are not related to work. Do not use your health insurance. File a workers’ compensation claim instead. Under Illinois law, your employer or its insurance company is required to provide you with reasonable and necessary medical care to treat your injuries and to pay for necessary rehabilitation.

6. Lying about when to report a workplace injury. As a general rule, in Illinois you have 45 days from the date of the accident to report a workplace injury to your employer in order to preserve your right to collect workers’ compensation benefits. After you report your injury, you generally have up to three years from the date of the accident to file a workers’ compensation claim.

7. Threatening to fire you. Terminating or threatening to terminate a worker who seeks workers’ compensation is against the law. If you face this, consult with an attorney immediately.

8. Objecting to every payment. Some employers and their insurance carriers resort to a strategy of wearing you down in the hope that you give up on your rights. They may refuse reasonable treatments, file paperwork to end treatments, or argue about every treatment. Don’t give in. Consulting with an attorney can help you combat these hard-ball tactics.

If you have been injured on the job and are facing roadblocks thrown up by your employer or its insurance company, it’s important that you consult with an attorney to assess your legal rights. For answers to questions about your Illinois workers’ compensation benefits, contact our Illinois Workers’ Compensation Law Firm for a free consultation.

Tags: , , , ,
Posted in Employer and Insurance Company tactics to block recovery of workers' compensation, Uncategorized | No Comments »

Denied workers’ compensation because you’re an “independent contractor”? What your employer tells you isn’t the final word

Sunday, December 12th, 2010

Illinois workers seeking workers’ compensation benefits sometimes confront the claim that they are independent contractors, not employees. Under Illinois law, you must be an employee to qualify for workers compensation benefits when injured on the job.

It isn’t always easy to distinguish between employees and independent contractors. But what your employer tells you isn’t the final word. Illinois law requires examining all details of a working relationship between a company and worker. It’s important to keep in mind that even if you sign a document saying you are an “independent contractor,” the contract is only one factor of many to consider.

Probably the most crucial factor is whether your employer retains the right to control the details of how you do your job. The more an employer controls a worker on how, when, where and whether work should be done, the more likely that individual will be considered an employee. In contrast, a company typically hires an independent contractor to achieve a certain result but doesn’t dictate the specific details on how that result comes about.

Other key considerations the Illinois Workers Compensation Commission and Illinois courts take into account are whether an employer:

• dictates an individual’s work schedule;
• withholds income and social security taxes from an individual’s compensation;
• supplies materials and equipment;
• requires a uniform;
• allows an individual to work for other companies;
• provides instructions and training on how to do a job.

It’s more likely a worker is an employee if the employer’s general business and the individual’s work are essentially the same, such as a truck driver making deliveries for a truck delivery company. Also, if a worker is substantially integrated into an employer’s operations, or has a continuing relationship with an employer, or works virtually full-time for an employer, it’s more likely the Illinois Workers Compensation Commission or a court will conclude the worker as an employee.
An Illinois Supreme Court case illustrates the distinction between an employee and an independent contractor. The court said a truck driver was considered an employee even though he owned and maintained his truck, had signed an “independent contractor” contract, and was responsible for obtaining liability insurance. The court concluded, however, that a number of factors showed that the driver was an employee. For example, he worked exclusively with the company, and his delivery work was entirely consistent with the business of the trucking company. Tellingly, the company reviewed the driver’s performance annually and kept the job review in the driver’s personnel file. The driver also had to follow the company’s maintenance and repair schedule for the trailer he leased from the company.

If you have been injured on the job and are told that you are an independent contractor not entitled to benefits, it’s important that you consult with an attorney to assess your legal rights. For answers to questions about your Illinois workers’ compensation benefits, contact our Illinois Workers’ Compensation Law Firm for a free consultation.

Posted in Uncategorized | No Comments »

Injured Illinois Workers Protected Against Retaliatory Discharge when Seeking Workers Compensation

Monday, November 22nd, 2010

Illinois workers injured on the job are entitled under the state Workers Compensation Act to obtain compensation for their medical bills, disability payments for necessary time off, and other benefits.

Workers compensation is a no-fault system, which means an injured worker is entitled to compensation regardless of whether the employee is at fault for the injury.

Illinois public policy is to ensure that employees have an effective and fair way to seek compensation for injuries suffered on the job without fear of losing their jobs. As a consequence, Illinois workers are protected against discharge or the threat of discharge in retaliation for exercising their rights under the Workers Compensation Act.
Because it is illegal to fire workers for pursuing workers compensation benefits, Illinois employers have an incentive to follow the law and treat claims fairly. While retaliatory discharge lawsuits are relatively rare, workers should be aware of their rights under Illinois law.

Should your employer terminate or threaten termination when you file a claim for workers compensation, you can file a separate lawsuit for retaliatory discharge. Being forced to resign is the same as a discharge.

To prove retaliatory discharge, an injured worker must have sufficient facts to show that (1) she was discharged or threatened with discharge, and (2) the employer’s motive in discharging or threatening to discharge her was to deter her from exercising rights under the workers compensation law, or to interfere with the exercise of those rights. An employer may defend against a retaliatory discharge claim by attempting to show a non-retaliatory reason for the termination.

Compensatory damages an injured worker can potentially receive in a retaliatory discharge lawsuit include back pay, future lost wages and mental anguish. For future lost wages, an employee must demonstrate that she made reasonable efforts to find an alternative job. This is known as mitigating damages.

The injured worker might also receive punitive damages, which are meant to punish wrongdoers and act as a deterrent to other employers. The amount of punitive damages awarded is based on a jury’s sense of fairness under the facts and circumstances of a particular case.

Absent a contract, employment in Illinois is normally considered to be an “at-will” relationship, which means an employee or employer can end the relationship at any time for any reason. However, the retaliatory discharge exception to the at-will rule protects the rights of workers injured on the job.

Unlike at-will employees, the terms and conditions of employment of unionized employees are controlled by collective bargaining contracts. Nonetheless, unionized employees also have the right to file a retaliatory discharge lawsuit when employers interfere with their workers compensation rights.

If you believe that you have been discharged because of your workers compensation claim, or have been threatened to not pursue a claim, it’s important to act promptly because the deadline to purse a retaliatory discharge claim is two years from the date of termination. Consulting with an attorney also helps to preserve evidence and build your case.

For answers to questions about your workers’ compensation benefits, contact our Illinois Workers’ Compensation Law Firm for a free consultation.

Tags: , ,
Posted in Uncategorized | No Comments »

Workers’ Compensation and the H1N1 Flu Pandemic

Saturday, November 14th, 2009

On October 24, 2009, President Obama signed an Executive Order declaring the H1N1 Influenza outbreak a national emergency. This is just one more development in the increasingly troublesome saga that is the Swine Flu pandemic. In addition to causing numerous public health issues, the H1N1 virus also raises a variety of workers’ compensation issues.

One of the most salient workers’ compensation issues relating to the flu pandemic is whether contracting the H1N1 virus in the workplace is considered a compensable injury. For a disease to be compensable under workers’ compensation laws, such as the Illinois Workers’ Compensation Act, it must be one “arising out of or in the course of employment.” That means the worker must be exposed to the disease while working, and the worker’s job must put him/her in harm’s way of the disease.

Nurses and health care workers certainly have the potentiality for a workers’ compensation claim. Because many health care jobs require workers to come into contact with infected persons, health care workers are at a greater risk of exposure than the general public.

Additionally, those who contract the H1N1 flu during business travel may also have compensable claims depending on the specific circumstances of their travel. For example, exposure to the Swine Flu while traveling in company-provided transportation might be compensable, whereas travel on public transportation likely is not.

Mild cases of Swine Flu are not likely to yield many workers’ comp claims, but severe cases that lead to prolonged illness, permanent disability or fatalities certainly will. Those who have pre-existing medical problems such as compromised immune systems, cardiovascular disease and respiratory illness are at increased risk of severe H1N1 complications. Under Illinois Workers’ Compensation laws, if workplace exposure to a disease contributes to a worsening of a pre-existing condition, it is compensable.

Proving that the H1N1 virus was in fact contracted in the workplace or during the course of employment, however, will prove difficult in most cases. Barring extraordinary circumstances such as a localized outbreak, it is very challenging to pinpoint exactly where an individual contracted the virus. The more widespread the pandemic becomes, the more difficult it will likely be to prove a workplace exposure.

For answers to questions about your workers’ compensation benefits, contact our Illinois Workers’ Compensation Law Firm for a free consultation.

Resource Links:

Illinois Workers’ Compensation Act
Declaration of a National Emergency with Respect to the 2009 H1N1 Influenza Pandemic

CDC Guidance for Businesses and Employers To Plan and Respond to the 2009–2010 Influenza Season

Tags: , , ,
Posted in Uncategorized | No Comments »