Illinois Workers’ Compensation Guide

Nearly every worker in Illinois is covered by the Workers’ Compensation (WC) Act and the Workers’ Occupational Disease (OD) Act. Workers’ compensation benefits are payable to employees and certain dependent survivors.

Covered workers may include:

• Most state, county, and local government employees (except Chicago police and firefighters)
• Employees of religious or charitable organizations
• Every employee of a private company even if you are the only employee
• Employees injured out of state where the contract of hire was made in Illinois or where the employment is principally located in Illinois
• Domestic workers and agricultural/farm workers may be covered by workers’ compensation
• Landscape workers are generally covered by workers’ compensation

The following workers may NOT be covered by workers’ compensation in Illinois, though they may be covered through an alternative source.

Workers that may not be covered include:

• Chicago police and firefighters (may be covered by the Public Employees Disability Act)
• Workers classified as independent contractors (see Independent Contractor section)
• Employees of the federal government who are typically covered by the Federal Employees Compensation Act (FECA)
•  Employees of a railroad who are typically covered by the Federal Employers’ Liability Act (FELA)
• Longshore, shipyard, and harbor workers who are typically covered by the Longshoremen and Harbor Workers’ Compensation Act

If you are an employee who has a compensable accident, immigration status will not affect the majority of your benefits. It is strongly advised that such employees contact lawyers who are knowledgeable in workers’ compensation law. Please consult the Illinois Workers’ Compensation Lawyers Association for help finding a qualified attorney.

Independent contractors are not considered “employees” and therefore, are not covered by the workers’ compensation and occupational disease acts. However, the distinction between an employee and an independent contractor is not always clear. Only the Illinois Workers Compensation Commission can determine if you are an employee or independent contractor under the Illinois Workers Compensation Act.

Whether you receive a W2 or 1099 is not the deciding factor and how your employer classifies you is irrelevant. Even if you signed papers agreeing you are an employee, it does not matter. There are many factors to consider when deciding if someone is an employee or independent contractor.  The most important factor is if your employer directs and controls your work.  If you need assistance, we recommend the following options:

• Speak with a worker center staff member
• Consult with a lawyer who is knowledgeable in workers’ compensation law

You are eligible for workers’ compensation as soon as you begin your job. It is illegal for your employer to ask or require you to waive your right to workers’ compensation. Even if you signed such a waiver, you still may be entitled to benefits. It is illegal for your employer to charge any portion of the workers’ compensation insurance premiums or benefits to you.

Every employer is required to be insured or properly self-insured for workers’ compensation. Regardless of the type of workers’ compensation coverage an employer has, every employer is required to post a notice identifying employees’ rights and identifying the insurance company that manages its workers’ compensation payments. Notice must be placed in an area where you can easily see it. If there is no notice, you should report it to the Illinois Workers’ Compensation Commission.

If your employer does not have insurance or is not self-insured, you still have a remedy through the Injured Workers’ Benefit Fund (IWBF). In order to recover from the IWBF, you will need to proceed to trial.  In general, it is not a good idea to proceed to trial without being represented by a lawyer who is knowledgeable in workers’ compensation law.

Nearly all injuries and illnesses, both acute and chronic, that occur in the course of or arise out of work activities are covered. You must demonstrate that the injury or illness is connected to your job.

Common types of injuries that are covered include:

1. Traumatic injuries: This includes injuries caused by accidents such as slip and fall accidents, machinery accidents, and falling objects.
2. Repetitive motion, cumulative trauma, or stress injuries: These are injuries that result from performing the same motion or task repeatedly, such as carpal tunnel syndrome from typing or using a mouse. This may also include an injury such as a ruptured disk in the back from heavy repetitive lifting.
3. Occupational diseases: These are illnesses or diseases that are caused by exposure to harmful substances or conditions at work, such as asbestos-related diseases or hearing loss from working with loud machinery.
4. Mental health conditions: In Illinois, workers’ compensation also covers mental health conditions that are caused by work-related stress or trauma, such as post-traumatic stress disorder (PTSD) or depression. Please note that mental health conditions are more difficult to prove than physical injuries.

To be eligible for workers’ compensation benefits, the injury must arise out of and in the course of your employment.  Additionally, your job does not have to be the sole cause of your injury or illness to qualify for coverage. Coverage may extend to activities off your employer’s premises when those activities are related to your job. For example, if you are making a delivery and you are hurt in a motor vehicle crash, you are entitled to benefits. However, there are many exceptions which is why a lawyer may be helpful.

If your job contributed to or woresened a condition it is covered as well. Aggravation of a pre-existing condition may be covered under workers’ compensation.

It can be more difficult to clearly demonstrate that your job caused an occupational illness than it is to demonstrate that your job caused an injury. The Occupational Disease Act defines work-related disease using a very similar definition for acute injury as “a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public.” Again, you do not have to prove that your illness was caused solely by something on the job, but you must be able to present evidence that your work or a work-related exposure contributed to your illness.

Foremost, workers must file a claim with the insurance and file a case with the Illinois Workers’ Compensation Commission.

Workers must report the injury to their employer within 45 days of the incident. A case must be filed with the Illinois Workers’ Compensation Commission within 3 years of the accident.  This is called the Statute of Limitations (SOL).  There are exceptions that would extend the filing period, but you should file your case as soon as possible to preserve your rights.

You should file a claim with the employers’ Workers’ Compensation insurance carrier as soon as possible so that you can begin recovering benefits as soon as possible.

You should always consider consulting with a knowledgeable doctor and/or attorney who specializes in occupational injuries and/or illnesses when there is any question about whether you are entitled to workers’ compensation benefits. It is better to consult with an attorney early in the process as you may not be taking advantage of benefits you did not know you had and/or you may give up rights you did not know you had.

COVID-19 infections are covered under the Occupational Diseases Act. As with all occupational diseases, you must show that you were exposed to a risk greater than the general public of contracting the virus at work and the causal connection between the work and the infection. Proving that increased risk is highly technical and as such, the legislature added a Covid-19 “rebuttable presumption” to the Occupational Diseases Act in effect from March of 2020 through July of 2021. This amendment to the Occupational Diseases Act was designed to protect any Covid-19 First Responder or Front-Line Worker by creating a rebuttable presumption that the exposure arises out of and in the course of their employment and a separate rebuttable presumption that the condition is causally connected to their employment.

In order to take advantage of the presumption, the infected employee must have a positive lab test or antibody test to confirm the diagnosis. There are 3 exceptions to the rebuttable presumption:

1. the work must expose the worker to members of the general public,
2. the work must expose the workers to over 15 co-workers, and
3. the employee cannot be working from home.

Further, the employer can rebut the presumption in three ways:

1. if the infected person worked from home for 14 days prior to the diagnosis,
2. if the infected worker was infected somewhere else or
3. if the employer “protected” the workers. This area is highly technical, and you should consult with an experienced attorney.

There are generally five types of workers’ compensation that a worker may be entitled to.

1. Medical benefits
2. Temporary total disability benefits or partial disability benefits
3. Permanent partial disability benefits
4. Vocational rehabilitation
5. Death benefits for surviving family members

Employers are required to pay for all medical care that is necessary to cure illness or relieve workers from the effects of the injury. This includes, but is not limited to:

• First aid
• Emergency care
• Doctor visits
• Hospital care
• Surgery
• Physical therapy
• Chiropractic treatment
• Pharmaceuticals
• Prosthetic devices
• Prescribed medical appliances.

The cost of devices, such as a shoe lift or a wheelchair, may be covered. If the work injuries result in a disability that requires modifications to the worker’s home, like a wheelchair ramp, the employer may have to pay those costs as well.

Maximum medical improvement means that a worker has healed to the extent possible, as determined by their doctor.

You are entitled to temporary total disability benefits if:

• Your doctor has indicated that you are temporarily unable to return to any work
• Your doctor has prescribed light-duty work but your employer is unable to accommodate you

If you receive temporary total disability benefits, your employer must pay you two-thirds, or 66^2/3% of your average weekly wage. You are not entitled to receive TTD benefits for the first 3 days you miss from work until you miss 14 days.

Employers should issue the first temporary total disability payment in approximately 14 days. The insurance typically does not issue the first check until they know if the injured worker is off work for 14 days. Often, temporary total disability payments are delayed. If the employer does not pay promptly and cannot justify the delay, workers can petition for the employer to pay penalties and/or attorney fees.

Temporary partial disability benefits may be received when an injured worker is healing and is working light duty, part-time, or earning less than they would before injury or illness. The employer pays temporary partial disability benefits to an injured worker until they have returned to their regular job or have reached maximum medical improvement.

Temporary partial disability benefits are calculated differently than temporary total disability benefits and differ based on the date of injury/illness. We recommend you review Handbook on Workers’ Compensation and Occupational Disease to read how temporary partial disability benefits are calculated.

If you have reached maximum medical improvement, you are entitled to benefits for your permanent problems as detailed below:

• Disfigurement – for example, a scar with no other residual injury
• Permanent Partial Disability (PPD)
  • Every body part is assigned a number of weeks.  The Commission determines what percentage of loss you suffered for that body part
  • If you suffer an amputation, you would recover 100% loss of that body part
  • In addition to body parts, there is a classification for “person as a whole.”  This represents injuries to the back, neck, head, internal organs, etc.
• Loss of earning capacity for someone who is unable to return to their occupation at the time of injury and can only perform a job earning less money
• Permanent Total Disability for someone who is not capable of ever returning to any type of work.
• Death benefits (discussed below) to be recovered by a surviving spouse and/or dependent children.  If there is no surviving spouse or dependent children, other family members who are financially dependent may be entitled to a smaller recovery.

Your doctor’s first notes about your case are extremely important. Generally, you may choose your own doctor. However, depending on your employer, there may be some limitations on the doctor you can choose and how many doctors you see. For example, some employers have established preferred provider plans or, PPPs, which limit your choice to one doctor from an established list.

If an employer has established a PPP, they are required to inform the worker in writing so that the worker can choose a doctor that is part of the plan. You can opt out of the PPP at any time, in writing. 

If your employer does not have a PPP, or you opt out of the PPP, it is important to find a doctor who is trained in work-related conditions. To find a doctor in Illinois, contact the Workers’ Compensation Clinic at the UI Occupational Health Service Institute by phone at 312-996-7420 or email at uicwcc@uic.edu.

Workers’ compensation may also be required to pay for physical, mental, and vocational rehabilitation. This means that if a worker cannot return to their pre-injury job, they may be entitled to counseling for job searches and job retraining, including education at an accredited learning institution. Workers can choose their own vocational program, with their employers approval.

If a worker dies on the job, their family may be entitled to death benefits. There are specific regulations on what family members can claim benefits:

• A worker’s spouse and/or children under 18 and/or children under 25 who are enrolled in an accredited educational institution (this applies to more than just college)
• If the worker does not have a spouse or child under 18, dependent parents may be eligible
• If the worker does not have dependent parents, any person who relied on the worker for at least 50% of their living expenses may be eligible

The maximum compensation payable to a deceased worker’s family is $500,000 or 25 years of weekly benefits, whichever is more. The estate of the worker is entitled to recover medical expenses and Temporary Total Disability benefits incurred prior to the death. A burial expense of $8,000 is due to eligible family or the estate of the worker.

As with all legal matters, your claim/case can be settled.  Please note that all workers’ compensation settlements must be reviewed and approved by the Illinois Workers’ Compensation Commission.

The Illinois Workers’ Compensation Commission will conduct a trial, relying on Illinois law and how previous workers’ compensation cases have been decided (precedent). An arbitrator will facilitate the trial and a court reporter will record it. Cases are not resolved until the worker has reached maximum medical improvement. Read more about maximum medical improvement above in What are Workers’ Compensation Benefits?

After you have reached maximum medical improvement, you will need to prepare for trial by collecting:

• Medical records
• Doctor’s statements
• Other forms/paperwork necessary for filing a claim like the Accident Reporting and Case Management forms (found online)

If your case is proceeding to trial, we highly recommend that you hire an attorney.

The workers’ compensation system is extremely complicated and cases can take 12 months or longer. It is recommended that you work with an attorney to help resolve your case and maximize the benefits you receive. You can visit the Illinois Workers’ Compensation Lawyers Association website to identify a qualified workers’ compensation lawyer.

Note: This online guide is not intended to, nor does it constitute legal advice.

In workers’ compensation cases, you don’t have to pay fees for an attorney up front, nor do you have to worry about getting stuck with a big legal bill if you lose the case.

Standard lawyer’s fees are set by the Workers’ Compensation Act, and you will never pay fees unless you win your case. Normally, the fee is twenty percent (20%) of your settlement and is paid at the conclusion of the case. Under the law, a lawyer should not request any sort of payment from you before the case is complete.

Even if the employer has no objection to your claim, the insurance company can still deny the claim/case. Your employer may also contest your work-related injury or illness, or dispute the extent of your disability, average weekly wages, or whether medical bills were necessary. The most commonly disputed issues are listed below. Workers, and their lawyer, must be able to prove all of these to qualify for benefits:

• The employer was subject to the Illinois Workers’ Compensation or Occupational Diseases Act at the time of injury/illness
• On the date of the accident, a relationship of worker and employer existed
• The worker sustained accidental injuries or was exposed to an occupational disease that arose out of and in the course of work
• The medical condition was caused or aggravated by the alleged accident or exposure
• The employer received notice of the accident or exposure within the time limits set by law

Both you and your employer have the right to appeal the arbitrator’s decision in the case. A panel of three commissioners will review the arbitrator’s decision, as well as the evidence and transcript of the trial. Workers and employers may submit written arguments to the commissioners. The commissioners will then hold oral arguments at which the worker and their employer may both present a brief, 5-10 minute argument for their position. The commissioners are required to issue their decision within 60 days.

Workers and employers (except the State of Illinois) can appeal to the circuit court, which may result in further appeals to the Appellate Court, and in some cases, to the Illinois Supreme Court. The decision of commissioners is final for state employees. 

Many cases are settled outside of court. Workers’ compensation cases may be resolved through a settlement, compromised between you and your employer. In these circumstances, the settlement is an agreement between the worker, or their family, and the employer to close the workers’ compensation claim in exchange for an agreed-upon amount of money.

If a settlement is reached, the involved parties must write down the terms of their agreement on the Illinois Workers’ Compensation Commission’s Settlement Contract form. This settlement must then be approved by the arbitrator (or sometimes the commissioner) assigned to the case. A settlement contract is not legally binding unless the Illinois Workers’ Compensation Commission approves it.

It is important for all parties to review a settlement contract carefully. Once a settlement contract has been approved, it generally terminates the worker’s rights to any future cash or medical benefits, even if their condition worsens. If the parties want to keep a benefit open, this should be clearly stated in the settlement contract.

Employers, and insurance carriers, frequently stop making total disability payments, claiming that workers are able to return to work. Although advance notice is to be given before payments are stopped, employers and their insurers often ignore the rule.

If this happens, consult with an attorney. You can visit the Illinois Workers’ Compensation Association website to identify a qualified workers’ compensation lawyer. A lawyer can call the insurer and demand payment, file a petition for an emergency hearing with the Illinois Workers’ Compensation Commission, or file a penalty of Workers’ Compensation Act.

If, after you have received an award for compensation, your disability recurs or increases in severity, you have a right to file a petition to have your workers’ compensation benefits reinstated or increased in amount. You can file this petition any time within 30 months from the date of the decision.

If you negotiated a settlement contract, you may have given up the right to reopen your case unless your agreement expressly states that you can revisit the settlement.

The Illinois Department of Public Aid administers six programs that may provide a source of income and assistance to you and your family:

1. Medicaid
2. Aid to the Aged, Blind and Disabled
3. Aid to the Medically Indigent
4. Food Stamps
5. Aid to Families with Dependent Children
6. General Assistance program.

Applications for each of these programs must be made at the Public Aid office nearest to you. You may call the Department of Public Aid’s toll-free number to locate the nearest office 1-800-843-6154 or locate an office on their website. People who are deaf or hard of hearing may call 1-800-447-6404.