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Differences Between Workers' Compensation and Personal InjuryThe similarities between workers’ compensation and personal injury cases can make them at times difficult to distinguish. Both involve people being injured and needing monetary compensation in order to pay for recovery. In the simplest terms, workers’ compensation is a personal injury that occurs as a result of someone’s work. Workers’ compensation laws were created to help injured workers without having to sue their employers or coworkers. By accepting workers’ compensation benefits, an employee waives his or her right to sue an employer. However, there are more differences between workers' compensation and personal injury cases than the circumstances of the injury. In some cases, an employee injured at work may have the right to file a personal injury lawsuit.

Need for Fault

In personal injury lawsuits, the plaintiff must prove that the defendant was at fault for his or her injury. Workers’ compensation claims require the claimant to prove that his or her injury arose from work. In most cases, it is easier to prove the latter than the former. The source of an injury is more based on facts than determining who was a fault for the injury. By allowing a workers’ compensation claim, the employer is not admitting negligence and is covered by its insurance.

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Workers' Compensation Coverage Limits Number of Medical OpinionsAfter suffering a debilitating injury, patients often seek opinions from more than one physician. A different doctor may diagnose other problems that the patient is having or offer a more effective treatment. For people who were injured at work, Illinois’ workers’ compensation law allows them to seek an opinion from a second doctor, with the employer still covering the cost of the visit. However, getting an opinion from a third doctor may not be covered, which would leave the injured employee liable for the cost.

Example

In the case of L&M Supervac v. Illinois Workers’ Compensation Commission, an employee injured his shoulder while performing his work duty of lifting heavy trash cans. The employee went to an emergency room to see a doctor, which the employer agreed to pay for out of pocket to avoid an increase in its insurance premiums. After appointments with the doctor and an independent medical examiner representing the employer, the employee twice underwent surgery to relieve the pain in his shoulder. With the pain persisting, he sought the opinion of another doctor, who identified other damage in the shoulder area. However, the man, who no longer worked for the employer, had not received permission for any further doctor visits. The former employer disputed that the man’s injury originated from work and claimed that he exceeded the number of physicians he was allowed to consult. The Illinois Workers’ Compensation Commission and subsequent courts found that the evidence soundly pointed to the injury coming from his work. However, they ruled that the man used three choices of doctors and must pay for the visits with the third doctor. The reasoning was:

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Temporary Total Disability Can Continue After RetirementIllinois workers can qualify for Temporary Total Disability (TTD) benefits when they suffer work-related injuries that temporarily prevent them from returning to work. The employee receives two-thirds of his or her gross weekly pay, and the employer may terminate the payments when:

  • The employee is able to resume work;
  • The employer provides reasonable accommodations for the employee’s restrictions;
  • The employee has reached Maximum Medical Improvement (MMI); or
  • The employee chooses to not return to work.

Retirement is often considered to be voluntarily leaving work, which would end TTD pay. However, a recent Illinois workers’ compensation case shows that retirement can be involuntary.

The Case

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Positional Risk Routinely Rejected in Workers' Compensation CasesIn order to receive workers’ compensation benefits, an employee must show that his or her injuries arose out of his or her employment. In other words, the worker's job in some way put him or her at risk of injury. Courts have differing opinions on when a job constitutes a specific injury risk. There are three standards of risk assessment that courts consider:

  • Positional risk;
  • Actual risk; and
  • Increased risk.

Illinois courts have traditionally applied the increased risk standard, which states that workers’ compensation claimants must show that they were at greater risk of injury than the public because of the requirements of their jobs. Some appellate courts have used the actual risk standard, in which employees must only show that their injuries arose out of actions that they are expected to do as part of their work. However, Illinois courts have consistently ruled that the positional risk standard is insufficient to obtain workers’ compensation.

Positional Risk

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Employees Protected Against Retaliation for Workers' Compensation ClaimsStates require employers to carry workers’ compensation insurance in order to prevent employees from suing their employers after being injured on the job. The employee has a chance to receive benefits covering the cost of medical expenses and lost wages. The employer avoids a more costly court case, while its insurance provider covers the compensation costs. However, an insurer will increase the premiums on its coverage when an employer has an above average number of cases. This gives the employer an incentive to try to dispute the workers’ compensation claim. Some employers punish employees who try to file claims. In such cases, the employee can sue his or her employer for retaliation.

Forms of Retaliation

The most damaging way employers can retaliate against their workers is by terminating their employment. Illinois’ Workers’ Compensation Act prohibits an employer from discharging or threatening to discharge an employee because he or she is pursuing the right to seek workers’ compensation. Retaliation can take forms other than firing an employee, such as:

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