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The Injured Workers' Benefit Fund: when your employer doesn't have workers' compensation insurance

Illinois state law requires employers to carry workers' compensation insurance in order to protect any employee who suffers an injury on the job. But what happens if your employer doesn't carry the required insurance?

If my employer doesn't have work comp insurance, does that mean I don't have a claim?

If you were injured at work, you have a claim for workers' compensation benefits, regardless of whether or not your employer has the requisite insurance. However, the process becomes far more complicated when your employer does not have work comp insurance.

Who pays for my benefits?

Your employer is responsible for paying the benefits, but if your employer fails to do so, then your benefits may be paid through the Injured Workers' Benefit Fund. The Fund is set up by the Illinois Workers' Compensation Act to provide payment for injured employees' benefits when their employers fail to obtain work comp insurance.

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My Employer is Withholding Workers' Compensation Benefits for No Reason – What Can I Do?

Penalties and Attorney Fees

Throughout my career there have been many times where my client has done everything right in pursuing their workers' compensation benefits –timely notice of the injury was given, the worker promptly sought medical attention, was compliant with the doctor's recommended course of treatment, and off-work slips were timely submitted to the employer. And yet the insurance company still refused to pay weekly TTD benefits and/or denied medical treatment!

What recourse does the injured worker have when benefits are denied without a reasonable explanation?

First and foremost the injured workers' attorney must file a 19b/8a Petitioner for an Immediate Hearing. In addition to an emergency hearing the Petitioner can also file for penalties against the employer for their unreasonable delay payment of benefits. The Illinois Worker's Compensation Act provides for the following penalties:

  • Section19(l) is a late fee and applies whenever the employer fails, neglects or refuses to make payment or unreasonably delays payment without good cause. Section 19(l) provides a $30 per day penalty for each day that weekly TTD benefits are unreasonably withheld, subject to a $10,000 maximum.
  • Section 19(k) authorizes a penalty of 50% of the amount payable at the time of an award.
  • Section 16 provides for attorneys' fees and costs. Both Sections 19(k) and 16 apply are assessed when the employer unreasonably or vexatiously delays payment, for an intentional underpayment of compensation or where proceedings have been instituted by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay.

Generally, an employer's reasonable and good-faith challenge to liability does not warrant penalties.

Thus, penalties are typically not awarded when there are conflicting medical opinions between the Petitioner's treating physician and the employer's IME physician, even if it turns out that the IME physician is wrong. However, the Commission has awarded penalties against the Employer for the following conduct—

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Have you ever been asked to lift a heavy object at work that proved to be a difficult task? Or do you regularly lift and move heavy objects on the job? Either way, it is important to recognize the many ways in which heavy lifting can result in workplace injuriesand missed workdays. Indeed, according to afact sheetfrom the Occupational Safety and Health Administration (OSHA), "lifting heavy items is one of the leading causes of injury in the workplace." To be sure, more than one-third of allwork-related injuries(about 36 percent) involve harm to the shoulder and/or back that often result from heavy lifting.

The OSHA fact sheet explains that heavy lifting can result in both traumatic and overexertion injuries, including but not limited to:

  • Back sprains;
  • Muscle pulls;
  • Wrist injuries;
  • Elbow injuries; and
  • Spinal injuries.

In response to the high rate of workplace injuries caused by heavy lifting, OSHA cites some primary causes of heavy lifting injuries and preventive steps that should be taken for each.

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When we stop to imagine common workplace injuries in Aurora, most of us probably think about back injuries, repetitive motion injuries, and injuries caused by slips and falls. However, there are, unfortunately, many ways that employees get hurt on the job. As it turns out, some of the most common employee injuries that result in workers' compensation claims are not those that we are most likely to expect. According to a recent article in USA Today, the most common workplace injury in the U.S. is actually hearing loss. Employees in a wide variety of jobs are required to be in positions in which they can risk injury to their ears.

Workplace-Related Hearing Loss is All Too Common in America

As the article explains, the Centers for Disease Control and Prevention (CDC) cites hearing loss as the most common injury that workers sustain at jobs across the United States. Indeed, around 22 million workers are "exposed annually to hazardous level of occupational noise," and many of them are "likely to suffer from hearing impairment." To give you a sense of the economic costs of hearing-related harms, the Department of Labor estimates that approximately "$242 million is spent on workers' compensation annually for hearing loss disability."

The article describes the experiences of one employee, a construction worker, who began experiencing ear pressure after work nearly a decade ago. His symptoms gradually worsened, and he began using ear protection on the job. However, at this late stage, the ear protection could not reverse the harm that had been done. Whenever he would hear seemingly minor sounds outside of work—such as interpersonal conversations or noises from a lawnmower—he would experience "a jabbing pain in his inner ear." In addition to sharp pain, the former construction workers also experienced ringing in the ears and dizziness. He described the impact of his auditory damage as debilitating.

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A beer truck delivery driver injured his low back on July 15, 1999 while moving cases of beer with a hand truck. He had surgery a few months later. Unfortunately, because of the severity of his injury, he could not return to his beer truck driver delivery job. His doctor had placed him on permanent restrictions. However, his employer did find him a job in its warehouse. The warehouse job paid much less. As his employer is required to do under Illinois law, it began paying wage differential benefits to compensate him for his permanent loss of income.

Unfortunately for this worker, he suffered a new injury on October 23, 2002. This time, he injured his neck while working in the warehouse. His doctor performed surgery a few months later. Following this surgery, his doctor placed him on even greater permanent restrictions. His employer could not accommodate these restrictions. The injured worker searched for a new job within these restrictions but could not find one. He took both of his cases to hearing. He argued that he was entitled to both the wage differential from his first injury and permanent total disability from his second injury.

The Illinois Workers' Compensation Commission agreed that the injured worker was permanently disabled as a result of the second injury. However, the Workers' Compensation Commission said that his right to wage loss benefits ended when he was unable to work following his second injury. The Circuit Court agreed.

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