Workers’ Compensation and Employers’ Liability

1. Workers’ Compensation and Employers’ Liability Who is an Employer? Employer Liability Under Common Law State WC Laws Common Features Types of Injuries Illinois WC Benefits Federal Compensation Laws

2. Who is an employer? Characteristics of employers Engages the services of individual Fixes hours Provides tools Defines methods and means Employer versus independent contractor Proprietors and partners are not employees

3. Employer Liability Under Common Law Employer’s Duty of Care Provide a safe place to work Provide an adequate number of competent fellow employees Provide safe tools and equipment Warn the employee of inherent dangers Make and enforce rules for the safety of all employees Common-Law Defenses Assumption of risk Contributory negligence Negligence of fellow employee

4. State Workers’ Compensation Laws Originally held unconstitutional Maryland 1902 - unconstitutional Federal law 1908 - provided new benefits New York 1910 - unconstitutional Wisconsin 1911 - upheld New York 1913 - upheld Principles of WC Laws Prompt payment of determinable benefits Elimination of delays and reduced costs Guarantee of benefit payments through insurance Promotion of safety

5. Common Features of Compensation Laws Choice of Law Employee chooses which benefits to receive if more than one state law applies: State where injury occurred Location of usual employment Where employee was hired Persons and Employments Covered Covers employees and not independent contractors Exception - must cover employees of uninsured independent contractors

6. Common Features of Compensation Laws Description of Injuries and Diseases Covered Injury must be caused by accident arising out of and in the course of employment Disease must be covered by the statute as one that normally results from the nature of the employment and exposure to the disease must arise from employment

7. Common Features of Compensation Laws Benefits Provided Indemnity payments for time lost from work 60-75% of wages Tax free Maximum set by state Payment for medical services Unlimited No deductibles or coinsurance Rehabilitation services Death benefits

8. Common Features of Compensation Laws Methods of Financing Benefits Private insurance Insurance through assigned risk plans Insurance through state funds Qualified “self-insurance” plans Excess insurance Procedure for Obtaining Benefits Notification requirements Administration Courts Special commission

9. Third-Party Claims Applies when employee eligible for WC benefits was injured by the tort of a third party Employee has three choices: 1 Sue the third party Can file for WC benefits if unsuccessful 2 Accept WC benefit Employer is subrogated to rights of employee against third party to extent of WC benefits 3 Accept WC benefit and sue third party Employer has lien on proceeds of recovery to extent of WC benefits

10. Types of Injuries Covered by Workers’ Compensation • Fatal Injury • Permanent Total Disability • Permanent Partial Disability • Temporary Total Disability • Medical Only

11. Illinois WC Benefits State Average Weekly Wage (SAWW) = $747.48 Average Weekly Wage (AWW) = (Earnings over last year- Overtime)/52 Cost of Living Adjustment (COLA) Survivors’ Benefits Burial Benefit: $4,200 66 2/3% of AWW w/ COLA Min Weekly Benefit: Lesser of $373.74 or AWW Max Weekly Benefit: $996.64 Max Lifetime: Greater of $250,000 or 20yrs Remarriage “Award”: 2yrs Lump Sum w/o children

12. Illinois WC Benefits (continued) Permanent Total Disability 66 2/3% of AWW w/ COLA Min Weekly Benefit: Lesser of $373.74 or AWW Max Weekly Benefit: $996.64 Max Lifetime: Unlimited Temporary Total Disability 66 2/3% of AWW 3 Workday waiting period/14 day retroactive period Min Weekly Benefit: Lesser of $113.40* or AWW Max Weekly Benefit: $996.64 *Assumes Married, 2 children

13. Illinois WC Benefits (continued) Permanent Partial Disability 60% of AWW Min Weekly Benefit: Lesser of $88.90* or AWW Max Weekly Benefit: $541.23 or $996.64** Duration: Non-Schedule: % of disability * 500 wks Schedule: Thumb 70 wks Hand 190 wks Foot 155 wks Leg 200 wks Hearing Both Ears 200 wks *Assumes Married, 2 children **$996.64 paid if amputation or enucleation occurs

14. Illinois WC Benefits: Example An employee is injured at work while performing his job duties. His medical bills are $400. His average weekly wage is $1,540. He is totally disabled for 13 calendar days (9 workdays). Assuming the injury is covered by the workers’ compensation law, how much will paid in benefits?

15. Illinois WC Benefits: Example Injury is a Temporary Total Disability 66 2/3% of his AWW = $1,026.67 Max benefit for TTD = $996.64 He will receive benefits for 6 workdays (9 workdays minus 3 day waiting period. 1.2 weeks * $996.64/week = $1,195.68 $400 for medical expenses TOTAL: $1,595.68

16. Federal Compensation Laws Federal Employers’ Liability Act (1908) Applies to employees of interstate railroads Eliminates traditional employer defenses in suits by employees Longshore and Harbor Workers’ Compensation Act Provides more generous WC benefits to maritime workers (loading, repairing, building vessels) Jones Act (1920) Extends FELA to crew members Migrant and Seasonal Agricultural Worker Protection Act