Illinois workers’ compensation law is governed by the Illinois Workers’ Compensation act. The act is designed to provide benefits to employees who are injured at work. The act provides three major benefits to injured workers:
- reasonable and necessary medical benefits to cure/recover from the work injury
- wage replacement benefit or what is commonly referred to as “temporary total disability benefits” while an employee is off of work from an accident
- monetary compensation at the end of medical treatment called “permanent partial disability” settlement or award.
This portion of benefits is based on a statutory “schedule” and is also based in part of the earnings of the employee.
The term “employer” is extremely broad under the act. There is no minimum number of employees required and it is applies to all legal entities, corporations, not for profits, proprietorships and the like. The breadth of the term may even reach individuals hiring home care aides to care for ailing parents.
To qualify as an “employee” under the act, he or she must be under the control of the company’s direction and control, working a set schedule. In most instances, determining who constitutes an employee is relatively simple. In other instances, however, it is not clear if a worker is a statutory employee. To be considered an employee, the essential elements of an employee-employer relationship must be present:
- the relationship of the work performed to the overall business of both the individual performing the work and the regular work of the alleged employer
- the party most likely to have insurance coverage for the loss
- the right to control the manner in which the work is performed
- the method of payment for the work performed
- the right to discharge and the means to discharge
- the party furnishing tools, materials and equipment.
Part-time employees and loaned or borrowed employees are also entitled to benefits. Volunteers and independent contractors are generally not entitled to benefits, however, employers must be extremely cautious not to presume their outside “contractors” are excluded from workers’ compensation benefits. Any outside contractors performing work should be required to provide a current certificate of insurance coverage before being allowed to begin any project.
Most illegal employment relationships are still subject to workers’ compensation coverage. Accordingly, minors employed in violation of child labor laws are subject to the same protections as other employees. Likewise, illegal aliens are entitled to workers’ compensation benefits to the same extent as other employees. Coverage may even extend to illegal aliens who present fraudulent documents to secure employment.
An employer who fails to secure workers’ compensation may be subject to penalties that are 50% of the amounts payable for TTD or PPD, along with medical benefit not paid for frivolous reasons or withheld solely for delay. There is an additional penalty of $30 per day up to a maximum of $10,000 for non-payment of medical and TTD benefits.
Any injury, illness, or death arising out of and in the course of employment is compensable under Illinois workers’ compensation law. Under this definition, two requirements must be fulfilled before an injury will be considered compensable:
- The injury must “arise out of” the employment in that the injury has to arise for some “job-specific” risk rather than risk felt to be “common to the general public.” This requirement focuses on the basic concept of what worker’s compensation insurance is meant for – benefit protection for the risks that are encountered by the employee that are specific to work.
- “In the course of” means that the time, place and circumstance of the event giving rise to the injury or illness must be connected to work. This requirement is easily met where the accident is loosely connected to work. Nonetheless, accidents occurring on breaks or on personal deviations from work travel may not satisfy this essential connection.
There are several exceptions or qualifications to this broad category of compensable injuries:
Pre-existing injury or illness
When there is a preexisting injury or illness that predates the claimed work injury, the employee must show that the second work injury arose from a legal risk at work; a risk that made the occurrence of an injury more likely than everyday life.
Example - An employee who injures his or her back simply by walking across the floor at work should not have had a compensable injury.
Psychological or mental injuries caused by mental stress
Psychological or mental injuries caused by mental stress also have a different causation requirement. To prove a compensable mental injury arising from mental stress, the employee must prove by clear and convincing evidence that both:
- the work stress was extraordinary and unusual in comparison to pressures and tensions experienced by the average employee
- the work stress, and not some other source of stress, was the predominant cause of the mental injury.
The amount of work stress must be measured by objective standards and actual events rather than any misperceptions by the employee. A mental injury is not considered to arise out of and in the course of employment if it results from any:
- disciplinary action
- work evaluation
- job transfer
- any similar action, taken in good faith by the employer
- Note: These requirements apply only to mental injuries from mental stress. Depression arising from a physical injury such as chronic back pain, is compensable provided the back pain was a significant contributing factor to the development of the depression.
The act makes some allowance for the benefits owed for an injury or illness when there was a preexisting condition. A preexisting condition is different from an illness or injury in that the preexisting condition may not have symptoms, such as arthritis in a knee that can be seen by X-ray but does not produce symptoms or pain. The law provides that if a work-related injury aggravates, accelerates, or combines with a preexisting physical condition, any resulting disability is compensable only if contributed to by the employment in a significant manner.
Subsequent non-work related injury
The act also makes some allowance for injuries or illnesses that occur after the work-related injury. If an employee suffers a non-work related injury or disease that is not causally connected to a previous compensable injury, the subsequent non-work-related injury or disease is not compensable under this act.
Willful intention to bring about injury
Compensation or other benefits are not allowed for the injury or death of an employee when it is proved that the injury or death was occasioned by the employee’s willful intention to bring about the injury or death of the employee or of another, or that the injury or death resulted from the employee’s intoxication while on duty.
Unusual compensable situations
The following lists some unusual situations that may give rise to a compensable injury.
- Act of God - Although historically not considered compensable, most injuries arising from acts of God, such as lightning strikes, are now usually compensable.
- Example - An employee injured by a tree falling on his car while driving in the course of his employment would likely suffer a compensable injury.
- Assault - An employee injured in an assault will generally be covered where the assault is work-related. Where the employee is assaulted at work for personal reasons unrelated to the employment, the assault will typically not arise out of and in the course of employment. Also, injury resulting from an assault where the injured employee is the aggressor will typically not be covered.
- Emergencies - Coverage typically extends to workers injured while attempting to rescue themselves or others in an emergency situation.
- Exposure to elements - Injuries resulting from exposure to the elements are typically covered.
- Heart attacks (Myocardial infarctions) - Although heart attacks are generally medically considered personal risks, employee’s counsel will usually try to connect the infarction to strenuous employment conditions that caused an increase demand for oxygen in the heart muscle, thus making the infarction and the damage to the heart muscle compensable. Such heart attacks, as well as pulmonary disease and cancer are presumed to be compensable for firefighters.
- Hernias - One would also think that hernias are not work related but if the employee can connect the onset of the symptoms of the hernia with the occurrence of strenuous work or some other work activity, the hernia may be deemed compensable.
- Horseplay - Generally, injuries arising from horseplay or practical jokes where the claimant was either the instigator or a participant are not compensable.
- Weapons brought into the workplace - Injuries resulting from weapons or other dangerous objects brought into the workplace by employees are typically not compensable when such objects are unrelated to the nature of the work.
- Traveling to and from work - Generally, injuries occurring while an employee is traveling to or from work are not compensable. These injuries may, however, be compensable where:
- the employer furnishes transportation
- the employee is performing an act for the employer, such as running an errand on the way to work
- the employee is on call and the employer covers transportation costs
- the alleged injuries occurred while the employee is walking to or from parking facilities provided by the employer.
- Premises and parking lots - Generally, accidents and injuries occurring in parking lots or premises used for entrance and exit to work are compensable.
- Recreational and social activities - Typically, accidents occurring at employer-sponsored recreational or social activities are not covered. However, such injuries may be compensable where the employer benefits from these activities and there is an express or implied requirement of participation.
What to do when an injury occurs
First, it is most important that an injured employee gets immediate medical treatment, if necessary. Any emergency care should be administered as soon as possible.
Separate and in addition to workers' compensation requirements, employers should make sure that they fulfill their reporting obligations to either the U.S. Occupational Safety and Health Administration (for private-sector employers) or the Illinois Department of Labor - OSHA (for public-sector employers), when required. Workplace fatalities must be reported within 8 hours. Work-related in-patient hospitalizations, amputations, and losses of an eye must be reported within 24 hours. These deadlines could be affected by when the employer first learns of the incident or when the incident occurs in relation to the employee's last day of work.
The next immediate step is to conduct a reasonable investigation into the accident. The act requires the completion of a first report of injury called a Form 45. It is the initial accident report that documents the incident. This document does not prove the accident occurred or was caused by work; it is merely a statutory notice.
Next, an employer should be sure to obtain a signed medical release from the injured worker, which will allow the employers access to his or her medical records related to the claim. There are state and federal laws that prohibit distribution of a patient’s medical information; therefore, providers are often less than willing to provide medical treatment information without a proper release.
When investigating the accident itself and as part of the Form 45 preparation, the validity of the claim should be at the forefront. In some cases this is a simple matter, as the incident was witnessed and is not in dispute, in these cases, an employer will want to review the scene, the actions leading up to the accident and determine what can be done to prevent an accident of the same nature in the future. Check the equipment to confirm whether lock-out procedures were followed and whether any defective conditions exist. Get statements from the injured worker, if possible, and any witnesses who can confirm or deny whether the incident occurred.
Finally, but equally important, be sure to report any work related accidents to the proper insurance carrier as soon as possible. For more information, go to the Illinois Workers’ Compensation Commission website located at:
Investigating workers’ compensation claims from remote workers
Many employers are allowing employees to work remotely indefinitely and/or implementing a hybrid work schedule. When investigating an alleged remote work injury, the employer should evaluate it like any other claim.
Here are some investigative tips:
- Obtain a detailed written statement from the employee that explains what the employee was doing at the time of the injury, and when and where it happened.
- Have the employee take photos of the injury and the injury site when possible.
- Determine if the injury occurred in the course and scope of employment. For example, was the employee on the clock and/or performing job-related duties at the time of the alleged injury or did it occur outside of normal working hours? The alleged injury must also arise out of their employment. In other words, did the activity performed at the time of the injury provide some benefit to the employer?
Requiring employees to create a dedicated work area at home and establish clear working hours and break times will help to reduce potential liability for accidents occurring any time of the day or night. Employers can also install task monitoring software to record the employee’s computer activities, which can help to identify when the computer was being used or when it was idle. These cases can be complicated and are usually very fact-specific. Employers should work with their third-party administrator (TPA) and/or defense counsel to determine if a remote work injury is compensable.
Benefits employees are eligible for
Benefits payable to injured workers under the Act workers’ compensation law include:
- medical care that is reasonably required to cure or relieve the employee the effects of the injury
- TTD benefits while the employee is off work, recovering from the injury
- TPD benefits while the employee is off work, recovering from the injury
- vocational rehabilitation/maintenance benefits are provided to an injured employee who is participating in an approved vocational rehabilitation program
- permanent partial disability benefits for an employee who sustains some permanent disability or disfigurement, but can work
- permanent total disability benefits for an employee who is rendered permanently unable to work
- death benefits for surviving family members.
Temporary total disability
TTD is the benefit that an injured employee receives during the period in which the employee fits into either one of the following categories:
- is temporarily unable to return to work, as indicated by his or her doctor
- is released to light duty work but whose employer is unable to accommodate him or her.
The TTD benefit is 2/3 (66%) of the employee’s average weekly wage, subject to minimum and maximum limits. The minimums and maximums for TTD benefits are available at:
The employer should make the first TTD payment within 14 days after receiving notice of the injury.
In the event an employee is killed in the course and scope of employment, the widowed spouse and any dependents would be entitled to death benefits. The death must “arise out of and in the course of employment” for the death to be deemed, work-related. Death benefits are a minimum of $500,000 in Illinois. There is also a burial benefit of $8,000.
Temporary partial disability
TPD is the benefit that may be received during the period in which an injured employee is still healing and is working light duty, on a part-time or full-time basis, and earning less than he or she would earn in the pre-injury employment. The employer pays TPD benefits to an injured employee until the employee has returned to his or her regular job or has reached maximum medical improvement.
For injuries that occurred before June 28, 2011, the TPD benefit is two-thirds (66 2/3%) of the difference between the average amount the employee would be able to earn in the pre-injury job(s) and the net amount he or she earns in the light-duty job.
For injuries that occurred on or after June 28, 2011, the TPD benefit is two-thirds (66 2/3%) of the difference between the average amount the employee would be able to earn in the pre-injury job(s) and the gross amount he or she earns in the light-duty job.
Example - An employee was earning $900/week at the time of injury. While the employee was off work and recuperating, the pay for the job increased to $925/week. The employee returns to a light-duty job and earns $500/week.
Pre-injury average weekly wage (AWW) =$900
Current AWW of pre-injury job =$925
Post-injury gross pay =$500
Wage differential =$425 ($925 - $500)
TPD =$283.33/wk ($426.66)
The maximums and minimums for TPD benefits are available at:
Vocational rehabilitation includes, but is not limited to counseling for job searches, supervising a job search program, and vocational retraining, including at an accredited learning institution.
If the employee cannot return to the pre-injury job, the employer must pay for treatment, instruction, and training necessary for the physical, mental, and vocational rehabilitation of the employee, including all maintenance costs and incidental expenses. The employee must cooperate in a reasonable rehabilitation program.
Permanent partial disability
PPD may be any of the following:
- the complete or partial loss of a part of the body
- the complete or partial loss of use of a part of the body
- the partial loss of use of the body as a whole.
“Loss of use” is not specifically defined by the law, but it generally means the employee is unable to do things he or she was able to do before the injury. There are four types of PPD benefits:
- wage differential
- schedule of injuries
- non-schedule injuries
If, due to the injury, the employee obtains a new job that pays less than the pre-injury employment, he or she may be entitled to receive a wage differential award. The wage differential award is two-thirds (66 2/3%) of the difference between the amount the employee earns in the new job and the amount he or she would be earning in their prior employment.
For injuries that occured before September 1, 2011, benefits shall be paid for the life of the employee. For injuries that occured on or after September 1, 2011, benefits shall be paid for five years after the date of the award or until the employee reaches age 67, whichever is later.
An employee may be compensated for either the loss of wages or the permanent disability related to the same injury, but not both.
Schedule of injuries
The act sets a value on certain body parts, expressed as a number of weeks of compensation for each part. (See the chart at the end of this section). The number of weeks is then multiplied by 60% of the employee’s AWW.
If a body part is amputated or if it cannot be used at all, that represents a 100% loss, and the employee is awarded the entire number of weeks listed on the chart. If the employee sustains a partial loss, the benefit is calculated by multiplying the percentage of loss by the number of weeks listed.
If the condition is not listed on the schedule of injuries, but it imposes certain limitations, the employee may be entitled to a percentage of 500 weeks of benefits, based on the loss of the person as a whole. The number of weeks is then multiplied times 60% of the employee’s AWW.
An employee who suffers a serious and permanent disfigurement to the head, face, neck, chest above the armpits, arm, hand, or leg below the knee, is entitled to a maximum of 162 weeks of benefits at the PPD rate. The number of weeks is then multiplied by 60% of the employee’s AWW.
A scar must heal for at least six months before a hearing to assess the disfigurement can be held. An employee may not collect compensation for disfigurement and the loss of use for the same body part.
Example - An employee who undergoes carpal tunnel surgery and is found to have experienced some loss of use, may be awarded a benefit based on the body part or on the disfigurement from the surgery scars, but not both.
For injuries occurring before September 1, 2011, the Commission evaluates the physical impairment and the effect of the disability on the injured employee’s life. Factors that may be considered include the individual’s age, skill, occupation, training, and inability to engage in certain kinds of activities, pain, stiffness, or limitation of motion.
For injuries occurring on or after September 1, 2011, the Commission bases the determination of disability on five factors:
- an impairment report prepared by a physician using the most current edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment”
- the occupation of the injured employee
- the age of the employee at the time of the injury
- the employee’s future earning capacity
- evidence of disability corroborated by the treating medical records.
One of these factors may not be the sole determinant of disability. The relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained by the arbitrator in the decision.
Permanent total disability
PPD may be either one of the following:
- the permanent and complete loss of use of both hands, both arms, both legs, both eyes, or any two such parts
- a complete disability that renders the employee permanently unable to do any kind of work for which there is a reasonably stable employment market.
A claimant who is found to be permanently and totally disabled is entitled to a weekly benefit equal to 2/3 (66%) of his or her average weekly wage, subject to minimum and maximum limits, for life.
The Illinois Workers’ Compensation Commission administers the act. At the Commission, after a claim is filed, the Commission assigns a case number and an arbitrator to the case. For cases in Cook County, cases are randomly assigned among the Chicago arbitrators. For cases outside of Cook County, cases are assigned to the hearing site closest to the site of the accident.
Every three months, the case will automatically be set for a status hearing. At the hearing, the parties may request a trial. If neither party requests a trial, the case is continued for another three months.
This rotation continues for three years. For the first three years after a case is filed, it is the parties’ responsibility to move the case along. After three years, the arbitrator may dismiss the case at the status call unless the parties show there is a good reason to continue it. At anytime, a party can check the status of the case at the Commission’s online database found at:
From there, if the case proceeds to trial and is not resolved via settlement or other order, an arbitrator of the Commission will conduct a trial, relying on Illinois law, rules of evidence, and Commission precedent. Except for emergency hearings, an arbitrator cannot resolve the case until the employee has reached maximum medical improvement. Once the employee has healed to the extent possible, the parties will then need to prepare the case for trial.
All decisions by the arbitrator are appealable. If a party appeals, the appellate review board is required to issue a decision within 60 days. Commission decisions following appellate review involving employees of the State of Illinois are final. In all other cases, either party may appeal to the circuit court, which may result in further appeals to the Appellate Court.
The Americans with Disabilities Act (ADA) prohibits an employer from inquiring about the existence, nature or severity of an applicant’s disability, including workers’ compensation history. A prospective employer may, however, inquire about the applicant’s ability to perform specific job functions under the ADA. Upon hiring, the ADA requires the employer to make a reasonable accommodation to an employee’s known disability if the employee is otherwise unable to perform the essential functions of the job.
Illinois law categorically prohibits an employer from discriminating against an employee in any way for testifying or asserting any claim under this act. If the employee succeeds in showing discrimination that violates the act, the hearing officer may award the employee reinstatement to the employee’s previous job, payment of back wages, reestablishment of employee benefits and reasonable attorney’s fees.
Without proof of discrimination, the employee is entitled, upon request, to reinstatement to the employee’s former position if the position is available and suitable to the employee’s physical condition. If the employee’s former position is not available or suitable, the employee is entitled, upon request, to reinstatement to any other available position suitable to the employee’s physical condition. The obligation to reinstate includes an obligation to provide reasonable accommodation unless the employer can show undue hardship. The obligation exists for only one year from the date of injury unless the employer has over 200 employees in which event, the obligation to reinstate exists for three years from the date of injury.
Employers are encouraged to work closely with their agents to understand the pricing of their workers’ compensation premiums and, should claims arise, the expenses incurred and the reserves posted to claims against the employer. The workers’ compensation premium is essentially a result of the employer’s payroll dollars per classification of type of employment position multiplied by the employer’s history of claims experience. Employers are encouraged to make certain that their employees are properly classified in the rating system used for employers. A misclassification of an employee or a class of employees can cause a substantial change in the premium.
Similarly, the expenses attributed to new claims and the reserves (projected future expenses) can materially affect the employers Experience Modification Factor (EMF). The EMF is a number that reflects the frequency of claims for an employer and the “severity” of the claim; that is, how expensive is the claim. The EMF is the tool used by the workers’ compensation insurers to establish a track record or history for the employer. This EMF is then used with the amount of annual payroll dollars paid by the employer and the classification of the employees that assesses how risky the employer’s work is (clerical positions vs. loggers) in order to determine the annual premium.
The employer is encouraged to be proactive about the management of the claim by the insurance company to make certain that the EMF remains as low as possible to retain control over future premium. The employer has the right to control with whom the employee initially seeks treatment for health care. Employers should use this right to try to maintain management of the health care expenses. The employer should also aggressively try to return the injured worker to work as quickly as possible to keep the wage loss low. Such steps are important for controlling costs, keeping the EMF low, and saving on premiums.