BASIC BENEFITS IN ILLINOIS WORKERS COMPENSATION
- Reasonable and Necessary Medical Care
- Temporary Disability Benefits (2/3 of Wages)
- Compensation For Permanent Injuries
article is only a general overview and not a substitute for legal advice. Review of specific facts by an attorney is required before specific legal advice can be given.
Readers are cautioned to obtain review by
an Illinois workers compensation attorney.
BASIC RULES & BENEFITS IN ILLINOIS WORKERS COMPENSATION
by Brad Bleakney
I. Payment of Related Medical Care
A. Reasonable and Necessary Medical Care
An injured employee is entitled to payment of "reasonable" and "necessary" and related medical care subject to the limitations of the Illinois Medical Fee Schedule. This includes reimbursement for any out of pocket prescription expense, appliances or prosthetics necessary to cure or alleviate the effects of an injury. You do not want to wait until your medical care has been cut off before speaking to an attorney.
The medical care must be both "reasonable" and "necessary" in order to qualify for payment or reimbursement. The Illinois Workers Compensation Act does not provide for experimental, unproven or unnecessary procedures. The employer is only required to pay for medical care which is necessary to cure or alleviate the effects of the injury. This does not include measures which are purely “palliative” or procedures which are designed to simply relieve symptoms.
Since medical care is now subject to Utilization Review, the employer's liability for payment of medical care may be limited to evidence based medical standards as established by national guidelines. UR review reports are used to deny care but often the UR reviewer has not been sent all your medical records and a timely appeal can be taken submitting additional evidence.
For example, it is quite common for an employer to limit chiropractic care or physical therapy to 2 to 3 months following a muscle strain type injury. Illinois will generally follow national medical guidelines for determinations of what is reasonable or necessary medical care for a particular injury or given diagnosis.
Once the medical treatment has plateaued to the point that any further care will not achieve any further medical improvement, the patient's condition is said to have reached "MMI" or maximum medical improvement. Additional ongoing medical care may or may not be available after a finding of MMI depending on the nature of the injury or given diagnosis.
The American Medical Association recognizes 2 principles regarding the definition of MMI:
(1) Where all reasonable therapeutic interventions designed to improve the condition have been offered; and/or
(2) Where the patient has reached a stable and stationary medical condition in which permanent impairment is not expected to significantly change over the ensuing 12 months.
Generally, treatment will not be authorized under workers compensation after a worker has reached the 1st definition of MMI whereas ongoing medical care may be entirely necessary and paid under the 2nd definition.
Note temporary disability benefits may not be available in either case since the question now becomes one of "permanency" or the need to assess the "permanent" nature of the injury which may include an award for partial disability, partial wage loss award or complete and total disability.
B. Choice of Physician
Under the Act, the employee is limited to his or her independent choice of 2 physicians. Either of the these 2 independent choices of doctor may refer the employee to other doctors or specialists as necessary for x-rays, medical testing, follow-up care, surgery or consultation.
After 7/1/11 the choice of 2 doctors may be limited to the employer's PPO plan or limited to 1 choice of doctor outside of the PPO plan if the employer is notified in writing that the injured worker elects to OPT OUT of the employer's PPO plan.
Emergency medical care or visits to a hospital emergency room do not qualify as a choice of physician, however, undertaking follow-up care at the emergency facility or medical center will be considered a choice of physician. The employer is not required to pay for any third choice of physician not in the chain of referral.
If the employer has a PPO plan on or after 7/1/11 that has been approved by the Illinois Dept. of Insurance, the employer is not required to pay for physicians outside of the PPO plan or network of doctors unless they are specifically notified in writing that the injured employee "elects to opt out" of the PPO plan.
This new provision was largely designed to prevent doctor shopping and limit choice of physician.
C. Independent Medical Exam
At any point during the course of medical care, the employer is entitled to obtain an exam or IME by a physician of their choosing to determine any ongoing need for medical care or determine the state of disability. These examinations are usually set to cut off ongoing medical care or to answer whether an injured employee can or cannot return to work. Travel money is to be advanced to defray reasonable expenses to and from the employer’s medical evaluation. You shouldn't wait until a employer IME exam is set before contacting an attorney for advice.
Often disputes arise between the opinions of the treating physician and the opinions of the employer independent medical examination (IME) physician regarding the need for medical care, whether the worker remains disabled and off work or whether suggested surgery is reasonable or necessary. The employer is entitled to rely upon the opinions of their physician to terminate ongoing medical care or refuse a requested surgery or disability benefits. It is at this point that an attorney is absolutely necessary for representation to push for the treating physician's recommendations.
In the event of a dispute between the treating and examining physicians, disputes are commonly submitted to the Illinois Workers’ Compensation Commission for resolution. An arbitrator designated by the Commission is assigned the duty of resolving all disputed yet conflicting medical opinions. The arbitrator is free to adopt any one of the medical opinions expressed including either the treating physician or the employer’s IME physician in deciding an award of compensation.
D. Utilization Review
Recent changes were adopted in the Workers’ Compensation Act in 2005 to give the employer the additional right of "Utilization Review" or a medical record review by a doctor of equal standing in what is known as "peer to peer" review on or after July 20, 2005.
The right to ongoing medical care can be disputed based upon a URAC approved, utilization review opinion. These disputes may require submission to arbitration to resolve any conflicts of opinion. Utilization review can be conducted in advance of a proposed procedure in a “prospective review” or after the fact in a “retrospective review” to determine the reasonableness or necessity of any related medical care.
Under the 2011 reforms, employers denying medical care based upon a UR report must now make the UR doctor available for telephone or video deposition at the employer's expense.
E. Medical Invoices and the Medical Fee Schedule
Prior to February 1, 2006, employers could dispute the amount of a medical bill as not "reasonable" or not "usual and customary". This left many injured workers responsible for payment of outstanding balances owed on medical invoices in excess of payments made by the workers compensation insurance carrier. Employers were not required under the Act to pay "unreasonable or excessive" medical invoices and disputes often arose.
The reasonableness of the amount of disputed medical invoices often needed to be submitted to arbitration before the Commission to determine the "reasonable" amount of the medical charges for medical treatment incurred prior to February 1, 2006.
After new statutory amendments, as of February 1, 2006, the "reasonable" amount for payment of a particular medical invoice for a work-related injury under the Illinois Workers Compensation Act is now to be determined under the Illinois Workers Compensation Medical Fee Schedule.
The medical fee schedule sets forth caps or limits for reimbursement or payment of medical invoices based on the particular medical procedure code, the date of service and the location (zip code) where the medical care is provided.
II. Temporary Disability Benefits
All injured workers are entitled to payment of temporary total disability benefits during a period of total disability following a work-related injury. Disability benefits are payable at 66 2/3 % of the workers’ “average weekly wage" subject to certain maximum and minimum weekly disability benefits set forth in the Act.
Benefits are not payable for the first 3 days of lost time following an injury unless the employee is required to miss 10 or more working days as a result of the injury. After 10 days of time lost from work the employer is required to make up payment for the first 3 days of lost time.
All benefits under Illinois Workers Compensation are based on a formula using the workers' average weekly wage. The average weekly wage contemplates the actual earnings for the 52 weeks of employment immediately prior to the date of accident.
Overtime earnings are specifically not included under the Act however, where the overtime is "mandatory" or regularly consistent, the overtime hours may be included in calculation of regular earnings at the straight time rate of pay.
The calculation of average weekly wage is often disputed and disagreements may need to be submitted to arbitration where the disputes cannot be resolved on review of the wage records. Where it is impossible to calculate the full 52-week average weekly wage given the short duration or length of employment, special rules apply.
As long as a temporary disability is related to the work injury, the worker is entitled to receive payment for "temporary total" disability. It is the workers’ obligation to provide documentation from a physician establishing the periods of temporary total disability to the employer. This is commonly supplied by way of an "off work" slip, work status reports or a physician's off work note.
Most employers have a policy for terminating employees who fail to show up for work or fail to provide necessary documentation to establish a legitimate basis to be off work. Most employers have a 3 day "no call, no show" termination policy. Any release to return to work should be provided to the employer as soon as possible and the injured employee must be ready to report to work on restricted duty.
Most Illinois Workers Compensation adjusters cannot issue temporary disability benefits unless they have the proper current medical documentation in their file to establish "current disability". If documentation of disability is not forthcoming, issuance of disability benefits may be delayed or even denied.
A. Light Duty Release to Return to Work
In the event that the physician issues a release to return to light-duty work, the employee must notify his or her employer promptly. The employer will usually provide light duty work within the restrictions, if available, to prevent further lost time off work and disability payments.
If the worker is returned to light duty work at a reduced rate of pay, the Act now provides for a "temporary partial" disability benefit to offset any temporary reduction in pay. The light duty work provided may be subject to special conditions in the collective bargaining agreement where unions are involved.
Where the employer is unable to accommodate the light duty work restrictions, the entitlement to ongoing disability benefits continues so long as the worker is under medical treatment and temporarily disabled from his or her regular occupation. However, the failure to report for light-duty work, where such work is available, will result in the denial of benefits and may result in termination.
B. Discharge from Medical Care and Permanent Restrictions
Once a worker has recovered from the injuries to the extent medically possible, the disability is no longer considered to be "temporary" in nature. Once a condition has plateaued or stabilized to the extent medically possible, any remaining disability or restrictions are considered to be "permanent" in nature. In this case, the worker is no longer entitled to "temporary total" disability benefits.
If an employer is able to accommodate the permanent restrictions in the same job position or at the same rate of pay, these permanent restrictions are considered in making an assessment of compensation for permanent disability to the affected body part or area of the body. (see permanent partial disability below)
Where the worker is unable to return to regular work or unable to return to work at a reduced rate of pay, the law may provide for ongoing "maintenance" disability benefits during a period of vocational retraining or job placement. Where there is a permanent reduction in wages due to the permanent restrictions, the law provides for a wage supplement or partial pension to offset the loss of earnings effect of the injury.
III. Compensation For Permanent Injuries
A. Permanent Partial Disability
Where the injured worker is able to return to regular work but still retains permanent limitations or permanent restrictions as a result of the work accident, Illinois law provides for permanent partial disability or a percentage % impairment or "loss of use" of the body part affected.
For example, an arthroscopic knee surgery which results in permanent disability is often compensated at anywhere between 15% to 20% loss of use of the leg. In cases of permanent injuries of this nature, Illinois law uses a formula for compensation based on the average weekly wage and based on a schedule for the value of each body part. (see calculation chart for permanent disability for body parts)
Back injuries or injuries to internal organs are compensated based on a loss or impairment of the whole person rather than a scheduled body part amount. Hearing and vision loss are subject to special rules and calculation methods.
B. Partial Return To Work at Reduced Wages
Where the injured worker is able to return to work at a reduced rate of pay due to the limitations from the job injury, the law provides for a wage supplement or a wage differential benefit to pay weekly partial loss of earnings.
Wage differential benefits are calculated based on 2/3 of the difference between "what the worker would” have been able to earn in full performance of his regular occupation" and what he or she is capable of earning in the new reduced capacity. Vocational rehabilitation experts are often called upon to estimate the $$/hr wage earnings potential of an injured worker if there has been no return to work. Sometimes it is much better to find a job within your restrictions that you know you can do in order to establish your reduced earnings capacity. Proof of earnings in the form of a paycheck than someones educated guesstimate of reduced earnings power.
C. Permanent and Total Disability from Work
Where the worker is totally unable to return to work in any employment as a result of the injury and remains permanently and totally disabled from all work, Illinois law provides for a full disability pension benefit based on 66 2/3 % of the average weekly wages.
Where the worker is able to return to limited work but due to the results of the injury, the only jobs they are able to perform are so limited that no stable labor market exists for a person of like age, experience, training, restrictions and education, they may qualify for an "odd-lot" permanent total disability benefits under Illinois law.
Awards for permanent total disability pensions carry open medical rights for injury related medical expense and provide for cost of living adjustments. Permanent total disability benefits are payable for life given that Illinois does not have a mandatory retirement age.
The ability to return to work or inability to return to work is most often a medical question disputed by the physicians involved and the medical determinations of disability are usually supported by a functional capacity evaluation.
Where a worker is claiming total disability benefits based upon the lack of a stable job market, vocational labor market specialists are often consulted for their expert opinion and the worker must usually engage in a extensive but unsuccessful search for employment. Both elements are usually necessary to prove the lack of available employment although case law differs on the burden of proof.
In these type of cases, it is not disputed that the worker is capable of some type of employment but rather that there is no stable job market nor a steady labor market for a person of like age, education, training, skills and physical restrictions.
IV. Time Limitations, Social Security, Personal Injury
A. Time Limitations
A claim for Workers Compensation injury is subject to certain "notice" requirements under the Act and subject to a statute of limitations period. Notice of an accident should be given the employer as soon as practical however, claims for benefits may be disputed or denied for the lack of notice of accident within 45 days of the injury. Generally, receipt of some type of defective notice will not defeat a claim for benefits unless the employer can show that the defective notice resulted in substantial prejudice to defense of the claim.
Generally, the statute of limitations for filing a claim is 3 years from the date of accident or 2 years from the date of last payment of compensation, whichever is later. Special rules apply in cases of asbestos or radiological exposure. Special provisions apply for cases involving occupational diseases like black lung or silicosis.
Claims that are not brought in a timely fashion within the governing statute of limitations are barred by the expiration of time and all further benefits will be denied.
B. Social Security Disability
It should be noted that where as a result of the injury the worker also qualifies for Social Security disability benefits, Social Security provides for a credit or an offset from the monthly benefit to the extent of Illinois workers compensation benefits received.
Social Security will pay up to 80% of the former monthly income subject to rather low monthly benefit maximums. The general rule is that the combination of benefits between both Social Security and Workers Compensation benefits cannot exceed 80% of the workers' former monthly income. (see) Workers Compensation and Social Security Offset
Special funding of expected future medical care expense is now required in all Workers Compensation settlements involving workers eligible for Medicare or expected beneficiaries pursuant to Medicare's guidelines. (see) Workers comp and Medicare
C. Personal Injury - Workers Comp Lien Reimbursement
Where the work injury is caused by negligence of a 3rd party other than a co-employee or by the employer, a common-law claim for personal injury may be pursued against that 3rd party.
Again, subject to many exceptions, the common rule is that the employer is entitled to receive a reimbursement or recovery of 75% of the workers compensation benefits paid out of any recovery received from the 3rd party personal injury suit, less a proportionate share of costs and expenses.
It should be noted that all personal injury claims are governed by a much shorter time limit, generally 2 years from date of injury, for bringing an action for injuries.
Special and even shorter rules apply for actions against state governmental agencies, local, county and municipal entities. Failure to bring a claim within the set time limits will bar any recovery.
Most disputes in Illinois workers compensation are the result of conflicting medical opinions between the employer IME doctors and the treating physician over the exact nature or the extent of the injury, disputes often involve the ability or inability to return to work, disputes often arise concerning medical causation or frequently disputes arise over the necessity for surgery according to nationally accepted medical standards.
The second most common areas for dispute are whether accidents "arise out of a risk of the employment" or often involve disputes over the proper calculation of average weekly wage. All benefit payments are based on the worker's wages so fights regarding calculation are very common.
All these disputed areas are often resolved by attorneys in a negotiated settlement, often resolved with the aid of pretrial recommendations from the assigned arbitrator or when necessary, by submitting the claim to a full trial and appeal before the Illinois Workers Compensation Commission.
There is no substitute for sound, seasoned legal representation by an experienced Illinois workers compensation attorney. The many rules and exceptions that have developed in the law over the years present a minefield that is financially dangerous for the unknowing injured worker or Illinois employers alike. The recent reforms in 2005 and 2011 have added some significant changes in the law and some confusion still exists while we wait for the courts to interpret the new laws and declare the full effects of many recent reforms.
Anyone with questions should contact an attorney or law firm familiar with the new rules and procedures in Illinois workers compensation.