Workers Comp in Southern Illinois

It’s not uncommon for residents and businesses in bordering states to argue over which side of the state line treats its people better, but Brad Badgley says there is no debate when the battle is between Illinois and its southern neighbor, Missouri.

At least not when the topic is workers compensation.

“Illinois rates and laws are much better than Missouri,” Badgley said.

He would know, working in Belleville, Ill., which is just a 20-minute drive across the Mississippi River from St. Louis, Missouri. He sees numerous cases where a worker from an Illinois-based company will get hurt doing a job in Missouri and have a choice of which state to file a claim.

Here are two important things to consider:

• In Illinois, you get to choose your doctors for medical treatment. In Missouri, the claims adjuster directs your treatment and tells you what doctor to see.
• In Illinois, if the employee is capable of returning to work, but can’t return to his old job, he can make a wage differential claim that makes up the difference between what he was earning and what he is now capable of earning. Missouri doesn’t recognize wage differential claims.

While the Illinois Workers Compensation Act (IWCA) is much better, the economy that employs those people is struggling. Southern Illinois used to thrive around the coal mining and manufacturing industries. The mines have closed and manufacturers have gone elsewhere, leaving gaping holes in the economy and especially workers compensation.

“The coal and manufacturing industries generated a lot more claims, a lot more high-value claims based on earnings, but people in our area just aren’t making a lot of money anymore,” Badgley said. “There are still people getting hurt in other businesses and industries, but you’re just not seeing the volume of high-wage earners there used to be.”

But it’s still better than working across the Mississippi River in Missouri.

Signs You Need a Workers Comp Attorney in Southern Illinois

The Illinois Workers Compensation Act, like everywhere else, is clear about what should happen when someone suffers a work-related injury: Pay for their medical treatment and, if they miss more than three days work, compensate them for wages.

The first part of those benefits – pay for medical treatment — seems pretty easy to handle, but not for every employer and insurance carrier.

“Employers are required to make immediate payment of medical expenses, but nothing in the IWCA requires pre-authorization of treatment,” Badgley said. “No doctor is going to treat somebody unless they know they’re going to get paid and that’s one of the things workers compensation lawyers do. We get the wheels turning so treatment is authorized and paid for.”

Any delay in authorizing and paying a claim is a sign you may need legal help. Some other signs to look for:

• Neither your employer nor the insurance agency has contacted you since the accident
• Your employer tells you to use your own health insurance to pay for treatment
• The claims adjuster is trying to direct your medical care
• You’ve had prior accidents or claims
• Your company’s insurance carrier asks you to undergo a Section 12 examination
• You’re not sure your average weekly wage is calculated correctly
• You’ve been fired or laid off because you filed a workers comp claim
• Claims adjuster asks you to give a statement

“That last one is a big one,” Badgley said. “People need to be careful giving statements to claims adjusters. Obviously, tell the truth, but many times I’ve seen adjusters try to trap them into saying something that didn’t occur or isn’t correct and deny compensability. Talk to an attorney before you give a statement to anybody.”

What Does a Workers Comp Attorney in Southern Illinois Do?

When people consider hiring a workers comp attorney, they often envision going to a courtroom for a trial as being the only real reason you would need a lawyer.

Yet most workers compensation attorneys say that 95% of their cases never end up in a courtroom. The matter gets settled without appearing in front of a judge. Obviously, there is more to it that simply making a courtroom appearance.

Here are some things an attorney does that someone representing themselves couldn’t or wouldn’t know how to do:

• Deal directly with the claims adjuster.
• Be able to prove medical causation when employer or carrier claims injury was not work related.
• Get wage statements from employer for previous year to accurately calculate average weekly wage.
• Evaluate what case is worth, based on experience and prior administrative decisions.
• Verify at time of settlement or arbitration unpaid bills are identified and paid. If they are not, and case is settled, the employee could be stuck with those unpaid bills or outstanding liens.
• Evaluate the facts in a case and determine if a third-party claim exists.
• Depose witnesses and doctors involved in the case.
• Review medical record, including prior treatment of injuries.
• Suggest physicians to advocate for the injured worker.

“Injured workers should focus on healing and returning to work,” Badgley said. “Let the attorney handle your claim to a successful conclusion. Remember, the insurance carrier already has an attorney reviewing your file.”

How Much Does a Workers Comp Lawyer in Southern Illinois Charge?

Hiring a workers compensation attorney should be the easiest decision in any workers comp claim.

Workers comp attorneys only get paid if they win the case. They assume all the financial risk of preparing the case, but if they lose, they receive nothing, including reimbursement for expenses. The injured worker won’t pay a retainer or out-of-pocket expenses.

State law caps attorney fees at 20% of the value of disputed claims, whether the dispute is resolved through settlement or arbitration. The key word in that sentence is “disputed.”  The fee is based upon the permanency settlement or award.

The important thing to consider is the attorney’s knowledge and ability to recover all the benefits available for an injured worker.

“A person doesn’t really know what their case is worth or understand how to evaluate it without an attorney,” Badgley said. “If you don’t have an attorney representing you, that means you’re trusting the insurance carrier to treat you fairly and that doesn’t happen very often.”

Handling a Workers Comp Case on Your Own in Southern Illinois

The first step in a workers comp case is to notify your employer. That will kickstart the process of filing a workers compensation claim. If your claim is denied, you have the option to appeal the decision.

Filing a Workers Comp Claim in Southern Illinois

Filing a workers compensation claim in Southern Illinois is a multi-step process that begins with the very obvious: Notify your employer that you’ve been hurt as soon as possible after the accident.

That much is obvious in most cases, but not all injuries are easily assigned to a single incident. A sore back, a stiff neck – contracting an occupational disease such as loss of hearing – often occur over time. Workers suffering with back problems, for example, may ignore the pain for days or weeks until it gets unbearable before filing a claim. That brings into play a challenge from the employer or insurance carrier that the injury was work related.

But that won’t happen if you tell your supervisor or employer as soon as you feel a twinge and it begins to ache. Ask a supervisor to make note of the date so there is a record that it happened at work. That gives you a way to fight claims that it was not work related.

Here’s a step-by-step guide to filing a workers comp claim in Southern Illinois:

• Step 1:  Notify your supervisor or employer – Do this immediately, or as soon as possible, and tell them that you have been injured on the job.
• Step 2: Seek medical treatment – Like Step 1, this is obvious and should be done as soon as possible. Also, make sure the treating physician or facility knows this is a work-related injury so bills go to your employer’s insurance carrier and not you.
• Step 3: Document your injury – Write down the time, date and a description of the accident. Get the names of any witnesses and, if possible, use a smartphone to take pictures of the accident scene. Both are invaluable if there is a dispute over your claim.
• Step 4: Chose your doctor – You are permitted (and advised) to choose your own doctor for treatment. If that is not possible, your employer may have a Preferred Provider Program (PPP) that supplies the names of doctors and facilities approved by the employer. Illinois law allows injured workers to make two choices of doctors for treatment. If you go to a PPP, that is one of your two choices. If you decline to see a PPP, that also counts as one of your two choices. Either way, by choosing your own doctor – and asking him/her to refer you to any other doctors needed for your treatment – you retain control of your medical needs.
• Step 5: Check the claim status – The employer is supposed to file a claim 45, known as the “First Report of Injury” with the Illinois Workers Compensation Commission (IWCC) within five days of being notified about an injury. The status of your claim can be found on the IWCC’s website.

If parts, or all of your claim, has been denied, the injured worker, or an attorney, must file a form called “An Application for Adjustment of Claim” and a “Proof of Service” form. Claims may be filed electronically, by mail or you can take them in person, to any Commission office. There is no fee for the forms, which can be found at https://www.iwcc.il.gov/forms.htm.

When the IWCC receives your Application for Adjustment of Claim and Proof of Service, it will notify you and the insurance carrier when the hearing will be held and who will be the arbitrator.

If you have not at least discussed your situation with a workers comp attorney at this point, now would be a good time to consider that.

Deadlines for Filing a Claim

Deadlines are a vital part of the game in workers compensation cases and another of the many reasons it is wise to at least consult an attorney if you have disputes with your claim.

Here are a few of the deadlines that must be observed:

• Injured workers have 45 days to notify their employers of an injury and three years to file a claim for benefits or two years after the last compensation payment, whichever is later.
• Employers have 30 days to file a “First Report of Injury” with the Illinois Workers Compensation Commission for all injuries that result in a worker missing more than three days of work.
• Written reports of all job-related deaths must be made to the Commission within two working days.
• Injured workers should receive the first checks for Temporary Total Disability within 14 days.
• Appeals for arbitration and Commission decisions must be filed within 30 days.
• The statute of limitations says a claim must be filed within three years of the date of the injury.

Employers Responsibility for Filing a Claim

The first responsibility for an employer is to post a notice of what is expected when an accident happens and an employee is injured.

The notice should include information about:

• The person responsible for handling workers compensation claims
• Business address and phone number for the business
• Effective date and termination date for the insurance carrier
• Policy number
• Employer’s FEIN number

The employer should see to it that the injured worker receives necessary medical attention, whether on the job site or at an emergency room or Urgent Care Center.

The employer should inform the insurance carrier or workers compensation administrator as soon as possible.

If the employee misses three workdays, the employer should file a First Report of Injury with the IWCC and prepare to begin payment for Temporary Total Disability.

Employers are responsible for having workers compensation insurance to cover all employees, or petitioning with the state to be self-insured.

Employers are prohibited from charging employees for any part of the premium paid for workers compensation insurance.

Employers can’t discriminate against an employee who has filed a claim for workers compensation benefits. The employer can’t harass, fire or refuse to rehire employees who filed a claim.

Insurance Company’s Responsibility with Claims Form

Insurance companies are responsible for providing benefits to the injured worker, including paying for reasonable and necessary medical treatment and wage compensation for employees who miss more than three days of work because of injury.

Employers are prohibited from charging employees for any part of the premium paid for workers compensation insurance.

Employers can’t discriminate against an employee who has filed a claim for workers compensation benefits.

The insurance carrier may assign a nurse manager to the worker’s case to help gather medical records and bills.

It is wise to understand that the nurse manager is working for and paid by the insurance carrier. The nurse manager should not be in the examining room or offer advice that limits medical treatment. That includes speaking directly to your doctor about your medical care without first gaining your permission.

How to Appeal a Workers Compensation Claim in Southern Illinois

Employers in Illinois receive approximately 250,000 reports of injuries from workers every year, but only about one-third of them involve the worker missing more than three days of work and thus requiring the employer to file a report with the IWCC.

Of the group missing extended work time, more than 50,000 cases end up going to arbitration, which is where disputed claims usually are settled. However, arbitration is a misleading term for what actually happens at this stage of the process.

The arbitrator sits on the sidelines while the injured worker (and presumably their attorney) tries to reach what is called a “settlement contract” with the insurance carrier on the claim. Every three months, the arbitrator will issue a “status call” to see if the two sides have resolved the matter and in 90% of the cases, they eventually do, though it usually takes a lot longer than three months.

The settlement contract is an agreement by both sides to close the claim in exchange for the injured worker receiving an amount of money. The average settlement contract takes about two years to wind its way to a conclusion.

The settlement contract can’t be sent to an arbitrator for approval until the injured worker has received an independent medical examination and doctors say the worker has reached Maximum Medical Improvement (MMI).

In the 10% of cases where no settlement is reached, one side or the other requests a trial and now the arbitrator becomes the judge and a hearing takes place. The burden of proof is on the injured worker, who must prove they are eligible for benefits because:

• The injury occurred while working in Illinois.
• An employer/employee relationship existed.
• The accident occurred in the course of employment.
• The medical condition was caused by the accident or exposure.
• The employer was notified of the injury within 45 days of the accident.

An actual trial occurs with depositions presented; witnesses and expert testimony;  case law is cited … then the arbitrator has 60 days to make a decision to award benefits or deny benefits and dismiss the case.

Either side can appeal the arbitrator’s decision. When that happens, the case moves in front of a three-member panel, called “The Commission” which reviews the arbitrator’s decision.

No evidence or testimony is presented at this stage, though an attorney can present a five-minute oral argument. The members of the Commission look at the evidence presented and a transcript of the trial. They have 60 days to decide whether to uphold the arbitrator’s decision; reverse the decision or modify it.

The results at this stage are not good for injured workers appealing a case. The Commission let the arbitrator’s decision stand or decreased benefits in 82% of cases appealed by workers. When the insurance carrier appealed to reduce benefits, the Commission did not decrease benefits 73% of the time.

There are three more stages of appeals that either party can make, but it’s rare that cases reach either the Circuit Court (500 cases a year); the Appellate Court (100 cases a year) or the Illinois State Supreme Court (five cases a year).