part 2: A DOZEN THINGS EVERYONE SHOULD KNOW ABOUT WORKER'S COMPENSATION LAW

The Dozen Things Every Injured Worker Should
Know About the Illinois Worker's Compensation Act

I. Employer/Employee Relationship

For an injured worker to receive benefits under the Illinois Worker's Compensation Act, there must exist an employer/employee relationship between the parties. Generally, there is no issue as to whether an injured worker was an employee at the time of his injury. An issue regarding an employer/employee relationship usually arises when the employer claims the employee was an independent contractor. When there is an issue of whether an injured worker was an employee of the respondent, the Commission and the courts will look at the relationship between the parties to determine if an employer/employee relationship existed. The courts have stated that although no one single factor is determinative, factors such as the right to control the work, the method of payment, the right to discharge, the skill required to perform the work and whether the employer furnish the tools, materials or equipment will be considered. The courts have held that of those factors, the right to control the work is the most important single factor in determining whether or not an employer/employee relationship exists.

A. Exclusive Remedy

If an employee is injured at work while in the course of his employment, his exclusive remedy to recover damages from that work injury is limited to the Illinois Worker's Compensation Act. The injured worker may not sue his employer in Circuit Court, he can only make a claim pursuant to the Illinois Worker's Compensation Act. The Illinois Worker's Compensation Act only provides the injured worker with certain limited benefits pursuant to the Act which are set forth above.

In an automobile accident lawsuit, the injured party can recover damages above and beyond what is provided in the Illinois Worker's Compensation Act, which include past pain and suffering, future pain and suffering, loss of a normal life, risk of future injuries, 100% of all lost wages and benefits, property damage and all loss of use of his vehicle.

The Illinois legislature in passing the Illinois Worker's Compensation Act balanced the interests of the injured worker and only allowed certain benefits to be recovered because in a worker's compensation case, the injured worker
does not have to prove another person or entity was at fault, only that his injury arose out of and was in the course of his employment.

B. Statutory Employer

The Illinois Worker's Compensation Act provides that anyone who undertakes to do any work is liable to pay worker's compensation benefits not only to his own employees, but also the employees of subcontractors which he directly or indirectly engages to do any of the work. This portion of the Act is important to an injured worker who is employed by a sub-contractor who did not have worker's compensation insurance and does not have sufficient assets to pay the benefits he's entitled to under the Act and/or provide the injured the worker with immediate TTD or medical benefits. If you are an injured worker and your employer does not have worker's compensation insurance and there was a general contractor on the job, you could file an application for adjustment of claim against your employer and also the general contractor who becomes the "statutory" employer. The statutory employer then would be required to pay the benefits as set forth above. After those benefits are paid and your case is closed, the statutory employer has a right to go after your employer, subcontractor for reimbursement for the money paid on the claim.

C. Notice to the Employer

The Act requires that the injured employee give the employer notice of the injury within 45 days of the work injury. This notice can be oral or written and must be given to a supervisor or member of the management team. The Act also requires the employee to file an application for adjustment of claim within 3 years of the date of the accident or within 2 years from the last payment of benefits made by the worker's compensation insurance carrier. Failure to file the application for adjustment of claim within the statutory time frame, bars any benefits under the Act. Failure to notify the employer of the injury within 45 days is also a defense the insurance company will raise to avoid having to pay benefits under the Act.