This is the next of a series of columns on how the law can impact your life. Each month we will focus on various aspects of the law relating to personal injuries, those that happen both on-the-job and otherwise, including mishaps which occur in driving vehicles, using products and receiving medical care. The column will also respond to legal questions relating to personal injury that are sent to us.
Healy Scanlon Law Firm is comprised of eight trial attorneys, two of whom are from Ireland. We are located downtown at 111 West Washington Street, Suite 1425, Chicago, Illinois 60602 (312-226-4236). www.HealyLawFirm.com. The firm concentrates in the representation of injured victims of all types of accidents.
Readers are encouraged to call or write with questions concerning personal injury law.
MISCONCEPTIONS ABOUT ON-THE-JOB INJURIES
In several past issues, we have discussed the rights and remedies that injured individuals have when they file a workers’ compensation claim. From talking to our readers, it is clear that some have misconceptions about the Illinois Workers’ Compensation Act and whether they have the right to file a claim. This article will address some of the questions we have been asked. In some cases there was a potential claim, in others not.
“I can’t file a claim because the accident was my fault”
The Workers’ Compensation Act is a compromise between business and labor that provides compensation to injured workers. Unlike civil lawsuits, the amount of compensation an injured worker receives is limited. The advantage to the employee is that the employee does not have to prove any fault on the part of the employer or a co-worker. Instead, the employee must only prove that the accident “arose out of” and “in the course of” the employment. Generally speaking, this means you must be at work and doing something work-related when you are injured.
For instance, while at work an employee may drop heavy materials on his foot causing a fracture. Or, a carpenter while using a hammer may strike his hand. Even though the accident may have been caused by the employee’s own actions, he can receive workers’ compensation benefits.
“I can’t file a claim because I violated a safety rule or didn’t have safety equipment on when I was injured”
Many individuals, especially construction workers, have safety rules they must follow at work or must wear certain safety equipment while working. For example, if you are working road construction, you might be required to wear a reflective vest. If you are welding or soldering you might be required to wear safety goggles. When working on scaffolding or on other heights, you may be required to use a safety gate or wear a safety harness. Oftentimes, we talk to individuals who do not believe they can pursue a claim because when they were injured they had forgotten to use safety equipment or follow a workplace safety rule.
So long as the individual was doing something in furtherance of his employment, he has a right to benefits, even if the employee forgot to wear safety equipment or follow a safety rule. However, if an individual violates a safety rule purely for his own personal benefit, he may not be entitled to benefits.
In one notable case, an employee was denied benefits when he was riding double on a forklift during a lunch break in violation of a workplace rule prohibiting double riding. The court found that the employee was not due any compensation not simply because he violated a safety rule, but because he was acting for his own personal benefit, instead of doing something work related.
A similar situation is presented when employees getting into a physical altercation at work. If the altercation is based on a personal issue between the two employees, such as one lending money to the other, then any injury will not be compensable.
“I was receiving benefits but now my employer went out of business, so I guess my claim is gone too”
In these unfortunate economic times, some employers have closed their doors for good. Others have been bought-out by larger companies. Others still have chosen to lay-off some, or a large portion, of their workforce. What happens if you had an on-the-job injury but work for an employer who falls into one of these categories? The short answer is your claim goes on.
Almost all workers’ compensation benefits are paid through insurance, so the fact that your employer went out of business or was bought-out will not have a large effect on your claim. The insurance company will still have to pay benefits.
In these scenarios, an important question is whether you are working light duty or have restrictions to return back to work. Many employees who are injured return to work with restrictions; for instance, they cannot lift anything over 10 pounds. The employer may offer them a light duty or accommodated position, such as administrative duties instead of heavy labor. If you have work restrictions and your employer goes out of business or lays you off, the insurance company will be responsible for paying two-thirds of your average weekly wage while you are off work, and may have to assist you in finding a new job.
The insurance company will sometimes argue that the lay off was for “economic reasons” and that a large number of employees were let go. However, the reason for the lay-off is immaterial. The important issue is whether you have work restrictions. In fact, even if you are fired for cause, you may still be eligible for wage benefits in most instances, so long as you have work restrictions.
“I’ve always had back problems but now I injured my back at work – do I have a claim?”
Working in the trades is hard on the body. In addition to a full workday of heavy labor, many workers stay very active with sports and perform work around the home. Over time, all of this activity puts more and more stress on the body even if you do not have a specific accident or injury. Some estimate that as many as 85-90% of all people will have back pain at some point in their lives. These people may have occasional back pain or discomfort and may even seek medical treatment for their back. For some, an injury at work may exacerbate or aggravate their back pain. In many cases, a work injury can transform occasional back discomfort into a need for aggressive medical treatment, including surgical intervention.
Under the Illinois Workers’ Compensation Act an employee is entitled to full benefits for aggravation of a pre-existing condition. The employee must demonstrate that his activities at work were one cause, not the only or primary cause, of his injury or condition. So long as an accident at work made that condition worse, or made additional treatment necessary, recovery under the Act is possible.
Many varied employment injury fact situations arise. Whether a particular injury is compensable may, on occasion, be unclear. The Act is remedial in nature and is given a construction in favor of coverage. If you have a question about compensability, call your attorney or speak to one of the attorneys at Healy Scanlon Law Firm.
By: Dennis M. Lynch