Pam: So, is everyone covered by workers’ compensation?
Barry: Virtually everybody who works in the state of Illinois is gonna be covered by workers’ compensation. There are some exceptions. A major category of people who aren’t covered by workers’ compensation are people who are employed by the federal government, people who work for the Post Office or the VA or any of the other federal government agencies. There’s a separate workers’ compensation system that covers federal employees only. A second category of people who are excluded from coverage by the workers’ compensation act are railroad employees. Railroad employees have their own special statute called the Federal Employers Liability Act which is actually a fault-based system, but it applies only to people who are employed by the railroads. There are certain categories of agricultural employees who are gonna be excluded from workers’ comp, it’s a relatively small subset of people.
Probably the biggest group of people who are going to be excluded from workers’ compensation are people who are quote unquote independent contractors. Having an employer employee relationship is one of the essential things that’s really required for a valid workers’ compensation claim, and if you’re considered to be an independent contractor, that’s different from a employer employee relationship.
So, that becomes a big issue, especially in the construction industry, it’s becoming a bigger and bigger issue in the trucking industry. It was always a big issue in the trucking industry with regard to people who are owner operators, people who own their own truck but then drive for another trucking company, but more and more truck drivers are being called 1099 drivers where they’re really employees, but they’re being treated for various reasons as independent contractors when they’re really not. Independent contractors are, in theory, excluded from coverage under the Workers’ Compensation Act.
Now, you’ll be covered for activities that you do which are work related, and the technical language in the Workers’ Comp Act is arising out in the course of your employment, which basically means that this is a work-related injury. Now, if you’re quote unquote on the clock and you’re doing something that’s very clearly work related, you will almost always be covered by workers’ comp.
There’s a whole category of cases where the accident happens when you’re technically off the clock. It’s an important issue with people who travel for work, there’s a fairly famous case in the workers’ comp world where there’s a gentleman who is Hawaii for work, and he was on an excursion, like touring a volcano, and he slipped down a cliff side. That was considered to be still covered by workers’ compensation, believe it or not. And there’s a whole line of cases that sort of examine that kind of situation.
There is a series of cases that are referred to in the business as Coming and Going Cases, where you’ve arrived at work and you either haven’t punched in yet, or you’ve punched out and you’re leaving. Under certain circumstances, you may still be covered workers’ comp even though you haven’t technically punched in or you’ve already punched out for the day, but you’re coming and going. So, cases like that, where there is some real nexus to the work, it’s certainly worth a close examination as to whether or not you’d be covered by workers’ comp.
Pam: And what kinds of injuries are covered by workers’ comp?
Barry: Well, the whole scope of injuries are gonna be covered. I mean, obviously traumatic injuries such as a fracture, if you slip and fall, those are certainly gonna be covered. There’s a category of injuries called repetitive trauma injuries and classically, this is like carpal tunnel, low back injuries tend to be repetitive trauma injuries, there’s some shoulder injuries that are really described by that. There has to be a causal relationship between the work-related activity and the injuries that are being claimed, and because coverage under workers’ compensation is so often a really clearly established issue, the real battle where things get fought is over this issue of the causal relationship between the work and the injuries that are being claimed. It’s more difficult with repetitive trauma injuries than the obvious traumatic injuries, but it’s something that, with the right kinda help, you should be able to establish.
There are certain types of occupational illnesses that are gonna be covered. There’s a statute that’s very similar to the Workers’ Compensation Act called the Occupational Disease Act, which basically is gonna cover you if you are made ill by your employment. So, those are all things that tend to be covered. Now, it’s also important to keep in mind with workers’ compensation cases, that the way that the law regards preexisting conditions is that the employer takes the employee as they find them. So, the fact that you might have a prior injury or preexisting condition isn’t gonna exclude you from being covered by workers’ compensation as long as your work was a cause of the injuries that you’re claiming as part of your claim.
So, the fact that you may have degenerative junk in your back and have bone spurs and all these other things that people tend to have over age 30, if you’re doing okay kind of day in day out, and one day you’re at work and you bend down to pick something up, and as you’re straightening up you feel a pop on your back and you have all kinds of problems after that, you still should be covered by workers’ compensation, that should be an injury that’s compensable under workers’ compensation.