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Partner and founder Michael Inman, of the Chicago firm Inman & Fitzgibbons, Ltd., has been representing respondents in Illinois workers' compensation claims since 1979. He is well known in the workers' compensation legal community.

Below is an article entitled: Representing a Respondent. We hope you will find it helpful. If you would like to discuss a case, please contact our office.

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Representing a Respondent

INITIAL REVIEW OF FILE

Upon receipt of the file materials from your client, an immediate review of the information contained therein should be conducted.  Review the Application for Adjustment of Claim and determine the following:

1. Is the proper party respondent named?
   
   
2. Does the respondent come within the Illinois Worker's Compensation Act?
   1. Employer defined 820 ILCS 305/1
   2. Automatic application of Act, 820 ILCS 305/3
   3. Election to accept or reject Act, 820 ILCS 305/2
   
   
3. Is jurisdiction proper?
   
   The Illinois Workers' Compensation Commission has jurisdiction where:
   1. The employment is outside of the State of Illinois and the contract of hire is made within the State of Illinois;
   2. Persons whose employment results in fatal or non-fatal injuries within the State of Illinois and the contract of hire is made outside of the State of Illinois;
   3. Persons whose employment is principally localized within the State of Illinois, regardless of the place of accident or the place where the contract of hire was made.  820 ILCS 305/1(b)2
   
   
4. Has the Application for Adjustment of Claim been timely filed?
   
   A claim may be filed within three years from the date of accident or within two years from the last payment of compensation, whichever is greater.  In case of injury caused by exposure to radiological materials or equipment or asbestos, a claim may be filed within 25 years after the last day that the employee was employed in an environment of hazardous radiological activity or asbestos.  820 ILCS 305/6(a)
   
   
5. Is venue proper?
   
   The Illinois Workers' Compensation Commission shall fix a date and place for hearing as follows:
   1. The hearing site shall be located in the vicinity wherein the alleged accident occurred or geographically nearest to the alleged accident site;
   2. Where an accident occurs outside of the State of Illinois and the petitioner lives in the State of Illinois, the case shall be set at the hearing site nearest to where the petitioner lives;
   3. Where the accident occurs outside of the State of Illinois and the petitioner lives outside of the State of Illinois, then the case shall be set at a hearing site most convenient to the parties.
   
   
   
6. Does the information identifying the petitioner contained in the Application for Adjustment of Claim confirm the information contained in your file materials?

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Once you have determined that there is proper jurisdiction and a timely filing of the Application for Adjustment of Claim, consider the following issues:

1. Is there an employer-employee relationship?
   1. Employer - 820 ILCS 305/1(a)
   2. Employee - 820 ILCS 305/1(b)
   Look for special relationships such as independent contractors, loaned or borrowed servants, volunteers, corporate officers, partners, statutory employer and minors.
   
   
2. Is there an accidental injury which arose out of and in the course of employment?
   1. An injury "arises out of" one's employment if its origin is in a risk connected with or incidental to the employment; Problem areas: heart attacks, repetitive trauma, aggravation of a pre-existing condition, assaults and idiopathic falls.
   2. In the "course of employment" refers to the time, place and circumstances of the accident.  Problem areas:  Deviation from employment, traveling employees, parking lots, company premises and athletic and social events.
   
   
   These can be difficult issues to resolve and careful research of the case law and review of available treatises is required.
   
   
3. Was proper notice of an industrial accident given to the employer?
   
   Notice must be given to the employer no later than 45 days after the accident.  Notice may be written or oral.  No defect or inaccuracy in the notice given will bar the claim unless the employer can show that it was unduly prejudiced by such defect or inaccuracy.  820 ILCS 305/6(c)
   
   
4. Is there a causal connection between the alleged accident and the petitioner's condition of ill-being?
   
   The treating doctor or our examining physician's medical report will usually set forth an opinion as to causal relationship, either directly or by implication. In the problem cases, the testimony of the various treating physicians may be necessary to resolve this issue.  Obtain a complete list of treating physicians and facilities from the claimant, along with addresses and telephone numbers, and request medical records as soon as possible to complete the investigation.
   
   
5. Earnings:
   
   Confirm the petitioner's average weekly wage with the employer.  If the petitioner alleges wages higher than what the employer has indicated, secure a wage statement for the 52 weeks preceding the date of accident.  Calculate the average weekly wage pursuant to 820 ILCS 305/10.  Both the temporary total disability and permanent partial disability rates are based on the petitioner's average weekly wage, governed by statutory minimums and maximums.  Note that if the employee has other employment at the time of the accident, and this is known by the employer prior to the injury, the wages from all employers are combined in calculating the average weekly wage.
   
   
6. Dependency:
   
   Dependency may affect the low wage earner's minimum temporary total disability and permanent partial disability rates and may have an impact in claims involving the death of the employee.  820 ILCS 305/7.
   
   
7. Medical Expenses:
   
   The employer shall provide and pay for all necessary medical services.  The services must be reasonable.  The employer is also liable for any necessary vocational rehabilitation.  If there is any question as to whether the medical services rendered to an employee were reasonable and necessary, you should consult your medical expert for an opinion.  820 ILCS 305/3.
   
   The employer shall pay all related, reasonable and necessary medical expenses within 60 days of the date of service so long as "substantially all" of the required records and the bills are received (820 ILCS 305/8.2d) unless the claim is denied.  The employer has 14 days to respond in writing to a demand for payment of medical benefits (beginning at the conclusion of the 60-day bill review period) or face the possible imposition of Section 19(l) penalties of $30.00 per day up to $10,000.00 for the non-payment.  A delay in excess of 14 days creates a rebuttable presumption of an unreasonable delay.  820 ILCS 305/19(l)
   
   If your case proceeds to arbitration and payment of medical expenses has been made by a group insurance plan, refer to 820 ILCS 305/8(j) and request the appropriate credits against any award.
   
   
8. Temporary Total Disability, Temporary Partial Disability, Maintenance and Permanent Partial Disability Calculations.
   
   The minimum TTD and PPD rates through dates of accident on or before 1/31/06 are as follows:
   

   	Single	Married	1 Dep.	2 Dep.	3 Dep.	4 Dep.
   TTD	100.90	105.50	108.30	113.40	117.40	124.30
   PPD	80.90	83.20	86.10	88.90	91.80	96.90

   
   Effective for dates of accident on or after 2/1/06, the minimum TTD and PPD rates shall be equal and shall be equivalent to 66 2/3% of the state minimum hourly wage, or the federal minimum hourly wage, whichever is greater, times forty hours but not exceed the employee's average weekly wage.  At the current state minimum (currently greater than the federal minimum) wage rate, these minimum rates are:
   

   D/A	Min.Rate	Single	1 Dep. or Married	2 Dep.	3 Dep.	4 Dep.
   2/1/06	$ 6.50/hr	$ 173.32	$ 199.32	$ 225.32	$ 255.32	$ 260.00
   7/1/07	$ 7.50/hr	$ 200.00	$ 230.00	$ 260.00	$ 290.00	$ 300.00

   
   
   Minimum rate for amputation of a member and enucleation of an eye shall not be less than 50% of the state minimum average weekly wage, which as of 2/1/06 would be $130.00.
   
   If the period of temporary total disability lasts more than three (3) working days, TTD benefits shall be paid beginning on the 4th day of temporary total disability and shall continue as long as the temporary total disability lasts. If the temporary total disability lasts for 14 days or more, benefits shall be paid from the day after the accident.
   
   Maintenance benefits are benefits paid while a claimant is in vocational rehabilitation and are equal to the TTD rate for the claimant. On and after 2/1/06, maintenance benefits shall also include reimbursement for reasonable expenses associated with vocational rehabilitation.
   
   Temporary partial disability benefits shall be paid when an employee is working light duty on a part-time basis or when he is working on a full-time basis but earning less than "he or she would be earning if employed in the full capacity of the job or jobs." Temporary partial disability benefits shall be equal to 2/3 of the difference between the gross average amount the employee would be able to earn in his normal capacity had he not been injured and the net amount he is earning in the modified duty capacity. There is no provision setting forth a maximum TPD rate.
   
   
9. Nature and extent of the petitioner's injuries.
   1. When the petitioner has reached a plateau of recovery, determine the nature and extent of the petitioner's injury; that is, how severe is the permanent disability resulting from the accident or disease. Review all of the available medical records for an accurate diagnosis of the petitioner's medical condition. Request a medical evaluation examination. 820 ILCS 305/12. In the more serious cases, it will be necessary to subpoena the treating medical records and send them to your treating physician for his review and comments. 820 ILCS 305/16. You may also wish to speak with your medical expert to better understand the petitioner's medical condition. Review the Workers' Compensation Commission's published decisions for cases that are similar to yours. This should give you some idea as to your trial exposure at hearing and some boundaries for settlement negotiations. In disfigurement cases and cases in which there is a minor injury, it is advisable to arrange an office conference with the petitioner's attorney and the petitioner to view and discuss the injury.
   2. Permanent Partial Disability (PPD) recovery under Sections 8(d)(2) and 8(e).
   3. Wage Loss Theory; 820 ILCS 305/8(d)(1)
   4. Permanent Total Disability (PTD)
   
   
   
10. Petitions for Immediate Hearing (19(b) & 19(b-1) Hearings)
    
    If an employee is not receiving medical, surgical or hospital services, temporary total disability benefits, temporary partial disability benefits, vocational rehabilitation or maintenance benefits, he may file a Petition for an emergency hearing by an Arbitrator on the issue of whether or not he is entitled to receive same. 820 ILCS 305/19(b-1). Respondent also has the right to file a 19(b) Petition so long as interim disability benefits continue to be paid to the petitioner while the Petition is pending.

More Articles: Anatomy of a Compensation Claim Representing a Respondent [10/24/2006] Supreme Court “Hands” Victory Back to Repetitive Trauma Claimant [04/07/2006] New Case on Mental Stress Favorable to Employers

For more information, please contact: Michael Inman Inman & Fitzgibbons, Ltd. 33 North Dearborn Street Suite 1825 Chicago, Illinois 60602 (312) 422-0550