Workers’ Compensation Law: Coverage, Benefits, Defenses
- COVERED EMPLOYMENT.
The Illinois Workers' Compensation Act was first approved by the General Assembly on July 9, 1951. The Act was designed to promote the general welfare of the people of the State by providing compensation for accidental injuries or death suffered in the course of employment within the State, and without the State when a contract of employment is made within the State; providing for the enforcement and administering thereof, and a penalty for its violation. (820 ILCS 305/1 et seq.) The Courts have determined that the primary purpose of the Workers' Compensation Act is to provide employees a prompt, sure, and definite compensation, together with a quick and efficient remedy, for injuries or death suffered by employees in the course of their employment . . . and to require the cost of such injuries to be borne by the industry itself and not by the individual members. (O'Brien v. Rautenbush, 10 Ill.2d 167, 139 N.E.2d 222, 226 (1956)) More recently, the Supreme Court, in 1978, discussed the basis of the Workers' Compensation Law. The Court cited that the Act substitutes for the common law rights and liabilities of employers and employees regarding work related injuries or death, it deprived an employee of the right to sue the employer in tort but provides that his recovery for work related injuries is automatic and without regard to fault, it deprived the employer of his common law defenses against an injured employee but provides that his liability is fixed, and it provides protection to employees by providing them with prompt and equitable compensation for injuries. (Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353, 23 Ill.Dec. 559 (1978)).
The Act focuses on the welfare of the employee and mandates certain employer response when a worker is hurt on the job. The Statute goes even beyond the employer itself and addresses the insurance carrier directly in order to protect the injured worker. The insurance carrier is subject to the same restrictions as the employer. For example, neither employer nor an insurance company can interfere with an employee's exercise of his rights under the Act. Now, literally all forms of employment are covered under the Act. Section 3 of the Act applies automatically to most employers. Section 3 states "The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely:
- The erection, maintaining, removing, remodeling, altering or demolishing of any structure.
- Construction, excavating or electrical work.
- Carriage by land, water or aerial service and loading or unloading in connection therewith, including the distribution of any commodity by horsedrawn or motor vehicle where the employer employs more than 2 employees in the enterprise or business.
- The operation of any warehouse or general or terminal storehouses.
- Mining, surface mining or quarrying.
- Any enterprises in which explosive materials are manufactured, handled or used in dangerous quantities.
- In any business or enterprise, wherein molten metal, or explosive or injurious gases, dusts or vapors, or inflammable vapors, dusts or fluids, corrosive acids, or atomic radiation are manufactured, used, generated, stored or conveyed.
- Any enterprise in which sharp edged cutting tools, grinders or implements are used, including all enterprises which buy, sell or handle junk and salvage, demolish or reconstruct machinery.
- In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances or for the protection and safeguarding of the employees or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extra hazardous.
- Any enterprise, business or work in connection with the laying out or improvement of subdivisions of tracts of land.
- Any enterprise for the treatment of cross-ties, switch-ties, telegraph poles, timber or other wood with creosote or other preservatives.
- Establishments open to the general public wherein alcoholic beverages are sold to the general public for consumption on the premises.
- The operation of any public beauty shop wherein chemicals, solutions, or heated instruments are used or applied by any employee in the dressing, treatment or waving of human hair.
- Any business or enterprise serving food to the public for consumption on the premises wherein any employee as a substantial part of the employee's work uses handcutting instruments or slicing machines or other devices for the cutting of meat or other food or wherein any employee is in the hazard of being scaled or burned by hot grease, hot water, hot foods, or other hot fluids, substances or objects.
- Any business or enterprise in which electric, gasoline or other power driven equipment is used in the operation thereof.
- Any business or enterprise in which goods, wares or merchandise are produced, manufactured or fabricated.
- (a) Any business or enterprise in which goods, wares ore merchandise are sold or in which services are rendered to the public at large, provided that this paragraph shall not apply to such business or enterprise unless the annual payroll during the year next preceding the date of injury shall be in excess of $1,000.
(b) The corporate officers of any business or enterprise defined as a "small business" under paragraph (b), Section 3 of the Illinois Small Business Purchasing Act, as amended, and employed by the corporation may elect to withdraw themselves as individuals from the operation of this Act . . . - Any household or residence wherein domestic workers are employed for a total of 40 or more hours per week for a period of 13 or more weeks during a calendar year.
- Nothing contained in this Act shall be constructed to apply to any agricultural enterprise, including aquiculture, employing less than 400 working days of agricultural or aquacultural labor per quarter during the preceding calendar year, exclusive of working hours of the employer's spouse and other members of his or her immediate family residing with him or her.
- Nothing contained in this Act shall be construed to apply to any sole proprietor or partner who elects not to provide and pay compensation for accidental injuries sustained by himself, arising out of and in the course of the employment according to the provisions of this Act."
As can be seen, virtually all forms of employment are included in one or more of the above listed categories. If any employer does not fall into one of the above listed categories, that employer can elect to be covered under the Act by notifying the Commission and either securing a policy of insurance or filing a notice of self-insurance with the Commission. The Act also includes definitions of employer and employee. There is a nearly unlimited number of cases addressing the employer relationship.
The term "employer" as used in the Act means:
- The State and each county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein.
- Every person, firm, public or private corporation, including hospitals, public service, eleemosynary, religious or charitable corporations or associations who has any person in service or under any contract for hire, express or implied, oral or written, and who is engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or who at or prior to the time of the accident to the employee for which compensation under this Act may be claimed, has in the manner provided in this Act elected to become subject to the provisions of this Act. . .
- Where an employer operating under and subject to the provisions of this Act loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the employment of such borrowing employer and where such borrowing employer does not provide or pay the benefits or payments due such injured employee, such loaning employer is liable to provide or pay all benefits or payments due such employee under this Act and as to such employee the liability of such loaning and borrowing employers is joint and several, provided that such loaning employer is in the absence of agreement to the contrary entitled to receive from such borrowing employer full reimbursement for all sums paid or incurred pursuant to this paragraph together with reasonable attorneys' fees and expenses in any hearings before the Industrial Commission or in any action to secure such reimbursement. Where any benefit is provided or paid by such loaning employer the employee has the duty of rendering reasonable cooperation in any hearings, trials or proceedings in the case, including such proceedings for reimbursement . . .
- An employer whose business or enterprise or a substantial part thereof consists of hiring, procuring or furnishing employees to or for other employers operating under and subject to the provisions of this Act for the performance of the work of such other employers and who pays such employees their salary or wages notwithstanding that they are doing the work of such other employers shall be deemed a loaning employer within the meaning and provisions of this Section.
- COVERED INJURIES AND DISEASES.
It has been established that there is an employee and employer who are both operating and subject to the Workers' Compensation Act, and there is an employer/employee relationship, an analysis is to determine whether or not the accident "arose out of" and was " in the course of" the employment. Both issues must be present.
The term "arising out of" is concerned with the casual connection to the employment. In other words, the facts must show an increased risk to which the employee is subjected as compared to the general public. The employee must also be performing some task that he is engaged to perform in furtherance of the employer's business. Here, the mere fact that he is at the place of the injury because of his employment will not suffice.
An incident is generally an "accident" if anything happens that is unforeseen by the person to whom it happens. An injury is accidental within the meaning of the Act when it is traceable to a definite time, place, and cause and occurs in the course of the employment. Included in the accident is also an aggravation of a pre-existing condition. An aggravation of a pre-existing condition may be an accidental injury and compensable if it meets the requirements that the occurrence is traceable to a definite time, place, and cause.
The concept of definite time, place, and cause, is more difficult in those cases of repetitive trauma. Prior to 1987, repetitive trauma type injuries as well as other less identifiable accidents, were difficult to prove as workers' compensation cases. In Peoria County Belwood Nursing Home v. Industrial Commission, 115 Ill.2d 524, 505 N.E.2d 1026, 106 Ill.Dec. 235 (1987), the issue was whether an injury sustained as a result of a work related repetitive trauma was compensable under the Act without a finding that the injury occurred as a result of one specific incident, traceable to a definite time, place, and cause. In discussing a carpal tunnel case in Belwood, the Court held that the date of an accidental injury in a repetitive trauma compensation case is the date on which the injury "manifests itself". "Manifests itself" means the date on which both the fact of the injury and the casual relationship with the injury to the claimant's employment would have become plainly apparent to a reasonable person. Repetitive trauma is not limited to carpal tunnel syndromes, but can be involved with a foot, knee, back, shoulder, neck, and any other body part. Obviously, there are hundreds of cases regarding manifestation date as well as causation.
An accident does not necessarily mean that a joint or limb was injured. Certain psychological disabilities, vascular problems such as heart attack, stroke, etc., and exposure to heat or cold, or acts of God such as lightning strikes, may also be an accident and arise out of the course of the employment. "Arising out of" refers to the origin of the injury and concerns itself with an accident that occurs.
Not only does an accident have to arise out of the employment, but the accident must occur "in the course of" the employment. The words "in the course of" refer to the time, place, and circumstances of an accident. This addresses those incidents where an employee's injury clearly results from what he is doing but there is some doubt as to whether the work he is doing is his employer's work and not some personal matter of his own. This question arises as to whether an accident occurred "in the course of" the employment. These issues involve such things as injuries on parking lots, in the company's building, while the employer is on lunch, and whether or not he is on or off the company's premises, driving to and form work, etc. A general starting point is that employees who have fixed hours and places of work are generally in the course of their employment at such time and places. What the Commission will look at is whether or not the employee is acting in furtherance of the business of the employer at the time of the accident and whether there exists a causal connection between the accident and the special circumstances.
Occupational diseases are not covered under the Workers' Compensation Act but under the Workers' Occupational Diseases Act, 820 ILCS 310/1 et seq. The Occupational Diseases Act is designed to complement the Workers' Compensation Act by providing a remedy for slowly developing diseases that do not arise out an identifiable accident or occurrence such as pneumoconiosis (Black Lung) or some chemical related seizure disorders or asbestos related lung disease. An "occupational disease" is defined as "a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment (820 ILCS 310/1(d)) Under the Act, an employee is deemed to have been exposed when, for any length of time however short, he or she is employed in an occupational process in which the hazard of the disease exists. (820 ILCS 310/1(d). Another type of loss can be covered under either the Workers' Compensation Act or the Occupational Diseases Act. Hearing loss is compensable under a traumatic process under workers' compensation, but under the Occupational Diseases Act when it is due to a gradual rather than a traumatic process. Recovery under the Occupational Diseases Act is more generous than under the Workers' Compensation Act when hearing loss occurs in one ear. In such a case, the Occupational Diseases Act grants more compensation than the Workers' Compensation Act does.- TYPES OF BENEFITS
The Act covers certain benefits that an injured worker is entitled to. Firstly, he is entitled to interim benefits which include temporary total disability benefits, medical benefits, and rehabilitation benefits. These are designed to treat the injury and return the employee to the work place. It also allows for payment of permanent partial disability or permanent total disability. The Workers' Compensation Act provides for temporary total disability benefits to be paid to the injured employee when he is unable to work. Payments begin after a three (3) working day waiting period and are paid for as long as the temporary total disability exists. If the disability exceeds 14 days, the employer is liable for payment beginning on the first day of disability. The Supreme Court has defined total disability to that where a person is totally disabled when he cannot perform any services except for those which no reasonably stable labor market exists (E.R. Moore Company v. Industrial Commission, 71 Ill.2d 353, 376 N.E.2d 206, 17 Ill.Dec. 207 (1978)). In such an instance, the temporary total disability benefits should continue until the employee's condition has reached a permanent state or until he is able to return to gainful employment.
The amount that an injured worker is to be paid is based upon his actual wages. The rate is based on the average weekly wage of the employee for the period of 52 weeks ending with the last day of the employee's last full pay period immediately preceding the date of the injury, illness or disablement. The rate is determined by calculating the total amount of wages earned at a straight time pay, not including overtime pay or bonus pay, and dividing by the actual weeks worked for the 52 week period preceding the injury. The Act also calls for maximum and minimum TTD payments that are adjusted semi-annually. Once the weekly wage is established, the TTD rate is reached at calculating two-thirds (2/3) of that average weekly wage.
Medical Treatment
Section 8a of the Act requires the employer to provide all "necessary first aid, medical and surgical services . . . reasonably required to cure or relieve from the effects of accidental injury". The employee has his own choice of medical treatment as set forth in Section 8a:
" . . . The employer's liability to pay for such medical services selected by the employee shall be limited to:
- all first aid and emergency treatment; plus
- all medical, surgical and hospital services provided by the physician, surgeon or hospital initially chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by the said initial service provider or any subsequent provider of medical services in the chain of referrals from said initial services provider; plus
- all medical, surgical and hospital services provided by any second physician, surgeon or hospital subsequently chosen by the employee or by any other physician, consultant, expert, institution or other provider of services recommended by said second service provider or any subsequent provider of medical services in the chain of referrals from said second service provider . . ."
- all first aid and emergency treatment; plus
- VOCATIONAL REHABILITATION
Section 8a of the Workers' Compensation Act also requires a respondent to pay for "physical, mental, and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto." Issues that arise here are the interpretations as to whether or not the respondent is responsible for providing the petitioner with some form of gainful employment, restoring the petitioner to the employment and salary level that he had achieved before the accident. During the retraining or vocational rehabilitation, the petitioner is paid not temporary total disability benefits but maintenance benefits in conjunction with the formulation of the rehabilitation plan. The maintenance payments will be equal to the amount paid for temporary total disability.
The reason why it is important to try to return the employee to the similar salary level as before is that the Act also allows for a payment of a wage differential between the wages that the employee made prior to his injury and the wages that he is being paid in his new employment of two-thirds (2/3) the difference between his pre-injury wage and his new wages.- PERMANENT PARTIAL DISABILITY AND PERMANENT TOTAL DISABILITY
Once the employee has reached a state of maximum medical improvement, the determination will be made whether or not the petitioner has sustained a permanent partial disability or whether he has sustained a permanent total disability. A Permanent partial disability will pay a percentage of the loss of a body part. The rate of compensation to be paid is a figure of 60% of the average weekly wage — using the same basic calculations as used in determining the temporary total disability payments. A more thorough discussion of the establishment of permanent partial disability will be made in Section V of his presentation. In the event that one is unable to return to any substantial type of gainful employment, he may receive benefits for life as a permanent total disability. This issue will be addressed in more detail in Section V.
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