Illinois Workers Comp Claims

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(800-787-5431 or 312-324-0409). 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.

SPRING IS HERE! SO IS CONSTRUCTION

As the weather gets warmer, and the economy gets better, we begin to see more and more construction commencing on our highways and in our neighborhoods. For many, construction is a sign that the recent financial downturn appears to be improving, and for some, it is an opportunity to get back to work. But for others, increased construction this spring and summer will mean increased risk of accidents and injuries.

Highway construction injuries

A lot of the construction that has begun recently in the Chicagoland area is highway construction. Our already congested highways have been further strained by decreased lanes in many areas and increased traffic due to construction workers. When lane configurations are changed from the usual pattern, a distracted driver, accustomed to his daily commute, may leave his lane of travel, resulting in an accident.

Also, increased construction traffic can be dangerous both for construction workers and for drivers near construction sites on the highway. It is important to remember that the Illinois vehicle code requires drivers to yield the right of way to construction workers actually engaged in work on the highway. The speed limit is also typically reduced in construction areas and stiff fines can be imposed for speeding in a construction area, especially when injury occurs.

Accidents are also common when construction vehicles are entering or leaving the highway from a construction site. Usually these vehicles will not be using typical entry or exit lanes, and thus can take other drivers by surprise. In one case recently filed by our office, a semi-truck abruptly stopped in traffic on the tollway in response to a signal by a flagger on a construction site to allow a truck to pull into one of the sites entrances. As a result, a vehicle behind the semi-truck also braked suddenly and was rear-ended causing significant injury.

If a construction company is negligent in controlling traffic around its work site and an accident results, the construction company may be liable for the accident. The Illinois Department of Transportation, the Tollway Authority and other governmental entities have issued regulations and guidelines for construction companies operating near the highway. When an accident occurs near a construction site, these guidelines are one resource to look at to see if a construction company was negligent.

Injuries to construction workers - workers' compensation claims

Construction workers also have remedies if they are injured while working. Primarily, a construction worker who is injured while working has the right to file a claim pursuant to the Illinois Workers' Compensation Act. Under the Act, a worker is entitled to receive 2/3 of his average weekly wage, tax free, while he is unable to work. This is referred to as temporary total disability benefits, or "TTD."

A worker will also receive all reasonable and necessary medical care related to his injury, as long as he stays within the chain of physician referral. This medical care must be paid for out of the employer's workers' compensation insurance, and cannot be processed through the employee's regular health insurance. Notably, the employee is not responsible for paying any co-pay to the doctors, hospitals or therapists who treat him.

Depending on the severity of an employee's injury, he will have other rights under the Act as well. If the employee is unable to return to his former occupation because of an injury, the employer may be required to hire a professional job counselor to help the employee find suitable work. If the only available work is at a lower rate of pay than the worker was earning before the accident, the employer may be responsible for paying 2/3 of the difference between the employee's current pay and his pre-accident pay. This is known as a wage differential. In the most extreme cases, where an employee is unable to return to any work in any capacity, he may be entitled to TTD benefits for the rest of his life.

Some benefits are limited by the Act. For instance, in most cases the employer will not be responsible for paying any "fringe benefits" for the employee, such as health insurance, union dues or pension benefits. Also, if the employer can accommodate the employee's physical restrictions, the employee must accept modified work from the employer.
For example, after an injury many employees are returned to work but the doctor tells the employer that the employee can only lift up to a certain weight restriction, such as ten pounds. For construction workers, this will likely mean they will be unable to return to their old job. However, the company may still take the employee back to work in a modified capacity, and give him a job as a watchman or a flagger. In most situations, the company can even change the shift or hours that an employee works. What the company cannot do is change the rate of pay the employee receives. It must either pay the employee is old wage, or pay a differential as described above.

Other claims for injured workers

In addition to workers' compensation claims, an injured construction worker may have other claims. For instance, if a construction worker is struck by a car while working, he will have a workers' compensation claim against his employer as well as a potential lawsuit against the driver who struck him.

A common situation arises on a jobsite with multiple contractors. When an employee of one contractor is injured because of the negligence of another contractor, the employee may be able to file a lawsuit against the other contractor. Often times this occurs when one contractor negligently leaves debris or material out on a jobsite, causing an employee of another contractor to fall and sustain injury. Likewise, this situation presents itself when one contractor fails to secure building materials properly. If a worker is subsequently injured because of falling materials, a lawsuit may be a possibility.

Furthermore, the general contractor on a jobsite may be responsible for overall safety and cleanliness at a construction site, and may also be liable if a subcontractor negligently creates a dangerous condition.
However, a lawsuit generally will not be available when one employee is injured because of the negligence of another employee from the same company. Under that circumstance, an employee's "exclusive remedy" is a workers' compensation claim.

Conclusion

Although none of us enjoy sitting in construction traffic, construction is a way of life for many and a vital necessity to our economic development. Unfortunately, with construction can come dangerous situations and accidents. As can be seen from just this brief description, who is at fault for these accidents, and what an injured person is entitled to as a result of these accidents, is dependent on the factual situation of each case. If you are injured as a result of a construction accident you should contact an attorney as soon as possible to discuss what benefits may be available to you.

By: Martin Healy, Jr.
Dennis M. Lynch