Construction accidents happen far too often in Chicago and Illinois. Construction work is consistently ranked as one of the most dangerous occupations in Illinois. According to the US Bureau of Labor Statistics’ National Census of Fatal Occupational Injuries in 2018, approximately 12 out of every 100,000 construction workers in the United States will die each year at work. While motor vehicle accidents are the most common way for working adults to get hurt, construction accidents are never far behind. In fact, in 2018, three percent of construction workers were injured at work and with some requiring time off to seek medical treatment and heal from their injuries.
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Following a construction accident, it is important that you take immediate steps to ensure that your rights are protected. Even if your employer or construction site foreman is a friend or confidant, you will ultimately be fighting against an insurance company to get what you deserve. Insurance companies always seek to pay as little as they can and will search for any misstep you have made along the way to deny your claim or reduce your recovery. For that reason, immediately following your construction accident it is essential that you take the following steps:
After being involved in a construction accident and taking the initial steps outlined above, you may be wondering what type of construction claim you have. In Illinois, if you’re injured while working at a construction site, you likely have one of two types of claims: (1) a worker’s compensation claim or (2) a personal injury claim.
Illinois law requires employers to provide worker’s compensation insurance for almost everyone who is hired who has their employment localized in the state. It is estimated that over 90% of employers in Illinois have worker’s comp insurance. So if you’ve been injured at work, assessing whether you have a valid claim under the Illinois Workers’ Compensation Act is an important step.
To be eligible, you must meet FOUR basic requirements:
While it may seem obvious that filing a worker’s comp claim requires that you be employed by the company against which you are filing for benefits. Many workers in Illinois are not categorized as employees, but as independent contractors. For example, many truck drivers often own their own cabs and are legally self-employed. Similarly, ride-share drivers and food delivery drivers are usually categorized as independent contractors.
These independent contractors are not employees of the companies they deliver for and therefore are not able to pursue worker’s compensation claims. While there tend to be less independent contractor relationships in the construction setting, knowing whether your work is categorized as independent contracting or employment is especially important.
Again, a fairly obvious requirement of a valid worker’s comp claim is that your employer actually have worker’s comp coverage. As mentioned above, over 90% of employers have coverage in Illinois because it’s required by law. An employer that knowingly fails to obtain worker’s compensation insurance may be fined up to $500 per day they do not carry this insurance, with a minimum fine of $10,000.00.
More importantly, if an employer knowingly fails to obtain insurance coverage under the Illinois Workers’ Compensation Act and an employee is injured during the time the employer was uninsured, the employee may sue the employer in civil court where the benefits are unlimited. Further, during the civil trial, it is the burden of the employer to prove that they did not negligently cause the employee’s injury.
Another requirement for a valid workers’ comp claim in Illinois is that you must have been acting within the “course and scope” of your employment when the incident occurred. While there is extensive case law on exactly what it means to be acting within the course and scope of one’s employment, the general rule is quite simple: you must have been working when the accident happened.
For example, when two employees who do not like each other get in a fist fight on a factory floor, their injuries are unlikely to be covered by worker’s comp because the act of fighting was not “work,” and therefore not in the course and scope of their employment. A simple test is to consider the following question: was the injured worker doing something at the time of his injury to benefit the employer? If the answer is yes, then the injured worker was likely acting within the course and scope of their employment.
Finally, to have a valid worker’s comp claim in Illinois, you must meet the reporting and filing deadlines. First, you must notify your employer of the accident, injury, or illness within 45 days of the accident. The reporting can be done either orally or in writing. Of course, it is the best practice to report the injury in writing and to save copies. The report should include:
It is important to remember that reporting the injury within 45 days is not the only requirement, there is also a filing deadline. In Illinois, you must file your claim with the Illinois Worker’s Compensation Commission within three years of the date of the accident, or within two years from the last date you were paid by the employer, whichever is later.
Based on the above analysis of worker’s comp requirements, a seemingly straight forward process is, in fact, nothing simple at all. For that reason, immediately following your construction accident it is essential that you take the previously recommended steps to preserve your potential worker’s comp claim. The Kryder Law Group can offer a free consultation to discuss construction accident cases.
If you are injured in a construction accident, in addition to likely having a worker’s compensation claim, you could also potentially have an injury claim. The primary difference between worker’s comp and an injury claim is that in an injury case you have to prove negligence. Negligence is defined as a failure to use reasonable care when partaking in some activity.
For example, if you are climbing a fully functional ladder, but happen to slip off and fall because your boots are muddy, you would be unlikely to have an injury claim as no person or entity did something wrong. However, if you are working at a construction site and walking along scaffolding that collapses, you would have a worker’s comp claim with your employer and an injury claim against whomever improperly constructed the scaffolding or otherwise caused the scaffolding to fail.
It’s important to note that in injury cases involving construction accidents, there are often numerous defendants because there are so many contractors and companies working on any given construction site. Should you have an injury case related to a construction accident, expect there to be substantial litigation regarding who is at fault because there are simply so many different entities and persons working on and using the same space and equipment.
Using the scaffolding example mentioned above, it would likely make sense to sue the company that erected the scaffolding and any company or contractor that used the scaffolding or had equipment on or near the scaffolding. It is not uncommon for there to be a dozen or more defendants in construction accident cases. Sorting through which company is responsible and to what degree requires the skill of a construction injury attorney.
Many clients are aware that they have a worker’s comp claim or a potential construction injury claim, but many wonder whether they can pursue both at the same time. The simple answer is yes. Again, using the scaffolding example above, a worker who is injured on the job when scaffolding collapses would absolutely have a worker’s comp claim against their employer but also an injury claim against any of the defendants discussed above.
While being able to pursue two cases out of the same Chicago construction accident may seem like a stroke of luck, Illinois law is constructed – pun intended – in a way to make sure these types of scenarios do not become a complete windfall. The Illinois Worker’s Compensation subrogation law is detailed in 820 ILCS 305/5. (2020 West).
Pursuant to Section 305/5(b): “Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.”
The Section continues with: “Out of any reimbursement received by the employer pursuant to this Section the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.”
“If the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.”
In short, the statute clearly contemplates the situation where an injured worker has both an injury claim and a worker’s comp claim; however, the “employer” – or worker’s compensation insurance company – can recover its payments from the construction injury recovery. Furthermore, the statute contemplates how much of the injury settlement the worker’s comp insurance company can recover back from the injury proceeds: 75%.
Here’s an example to illustrate how compensation could break down in a construction site accident claim. If the worker’s comp paid out $50,000 in medical bills and $25,000 for total temporary disability benefits and then settled the case for $75,000, the the worker’s comp lien against the construction site injury case would be $150,000. If the injury case settles for $300,000, the worker’s comp insurance company can recover up to 75% of the $150,000 it paid out, or $112,500. In these circumstances where the worker’s comp company insists on a full 75% recovery, there is often very little funds leftover for the construction worker.
However, because it can be challenging, if not impossible, to resolve injury cases with a worker’s comp payout of 75% when the injury recovery does not substantially exceed the worker’s compensation lien, many worker’s comp lienholders will accept less than 75% to resolve the lien.
In some circumstances, the worker’s compensation lien may exceed the injury settlement. Let’s say there is a lien of $100,000, but due to issues with liability – see the discussion of negligence above – the injury case resolved for only $50,000. In this circumstance, if we follow the statute, the worker’s comp lien holder would be entitled to recover $75,000. That obviously does not make sense. While it is not mandated legally, and is certainly not a guarantee, insurance companies will often accept 1/3 of the injury settlement. This arrangement makes sense because then the injury settlement is generally being split equally between the worker’s comp lienholder, the client, and the attorneys.
At The Kryder Law Group, our injury lawyers work tirelessly to negotiate worker’s comp liens far below the 75% statutory recovery so that an injured construction worker receives a substantial percentage of the gross settlement even when there is a lien. Our law firm of injury lawyers are highly experienced in construction accident cases.
If you have any questions regarding your construction injury claim, don’t hesitate to get in touch for a free consultation! Just call our office and tell us about your case. There is no fee unless we win. You have nothing to lose and everything to gain.