Workers Compensation:

What should I do if I am injured on the job?

After injury or illness occurs, it is the employee’s responsibility to complete a claim form and to submit it to either the employer or the state workers' compensation agency/board. Normally, an employer will have the claim forms available. The employer will submit the claim to the insurance company. The employer is given an opportunity to respond to the claim. If he does not contest the claim, payment of medical bills and wages will be made by the insurance company. A hearing can be scheduled if the employer contests the claim to determine whether, or how much, compensation is owed to the employee.

What benefits are typically available under workers' compensation?

There are three major components to workers' compensation:

(1) Medical Expense - the cost for hospitals, doctors, medical treatment, etc.

(2) Disability Pay - either temporary while you are getting back to normal, or permanent if you will never fully recover. The amount varies, but can be as high as one-half to two-thirds of your normal pay.

(3) Vocational Rehabilitation - if your injury renders you unable to perform the usual duties of your occupation, you may need re-training so that you can enter into a new trade or business. Also, you may need physical therapy to get your normal strength back.

Since workers' compensation imposes strict liability without inquiry into fault, an employer could be penalized where its conduct was egregious - violation of federal or state safety standards, failure to correct known defects or other conduct - situations where there is a need to punish and deter such conduct in the future.

What is workers' compensation?

Each state has its own workers' compensation laws to handle claims from employees who are injured on the job. These laws are strict liability - fault and negligence by the employer need not be established in order to collect benefits. However, the injury or illness has to be incurred in the course of employment in order for the workers' compensation system to provide benefits to the injured worker. Since workers' compensation law imposes strict liability on employers, it is the exclusive remedy for an employee's injuries or illnesses arising out of the course of employment.

Workers' compensation insurance is typically required by the state for every employee - although state law may provide for specific exemptions for officers/owners, small companies (those with three/four/five or fewer employees), domestic workers, farm hands, and independent contractors.

Who pays for the workers' compensation coverage?

Workers' compensation is typically carried solely by the employer, who usually purchases workers' compensation insurance. The cost of workers' compensation coverage cannot be charged to the employee.

Do workers' compensation systems cover both traumatic injuries and occupational exposures?

Yes. Workers' compensation system in a State-by-State network of systems, provide benefits to workers who are injured as a result of a job related accident and/or industrial exposure. To be compensable, injuries must arise out of the employment and occur within the course of the employment.

What if I’m exempt - do I need to be concerned about workers' comp?

Even if you are covered by one of the exemptions, you should consider having workers' compensation insurance anyway. It typically is very affordable coverage that could really save you a bundle if someone got injured while working for you. Not only is workers' compensation coverage the right thing to do, it can protect you and your business from a devastating claim in its absence.

You'll also need other general liability insurance for your business. It's not always your employee who poses potential liability. If an employee of an independent contractor you hired to work on your house gets injured, you hope the independent contractor has coverage for the employee because if there is no coverage, its injured employee may begin looking for other sources of compensation and you will be in his/her direct line of sight.

What kinds of injuries or illnesses might be compensated by workers' compensation?

Injuries or illnesses are typically covered only when they "arise out of and in the course of employment." There needs to be a nexus between the accident that caused the injury/illness and the scope of your employment duties. Examples of compensable injuries are those caused by lifting heavy equipment, slipping on a wet or oily surface, defective machinery, or fires or explosions. Many state workers' compensation programs preclude coverage for injuries that occur while you are not acting within the scope of your employment - such as while you are playing football with friends on your day off. But closer examination of the situation should be made - if you were injured while playing football at a company sponsored picnic, there may be coverage.

Illnesses which "arise out of and in the course of employment" can be covered under the workers' compensation system where the working conditions present unusual or extraordinary risks of contracting an illness - such as coal miners being able to recover for black lung disease or computer workers for carpal tunnel syndrome. Careful inquiry into the hazards arising out of the scope of your employment can determine whether the illness is one that is common to everyday life as opposed to risks of illness that are present in your particular employment situation.

May a worker bring a claim against anyone else beside the employer?

Yes. In most instances, an injured worker may bring a claim against the ultimate wrongdoer. This is called a third-party action. Sometimes that claim is against the premises owner or the manufacturer of a defective product. There may, in certain instances, be claims against the provider of medical services for professional negligence. Claims may be brought also against the manufacturers, suppliers and health research organizations concerning toxic products such as asbestos, lead and latex. There is usually a lien imposed by law by the workers' compensation insurance company against the recovery obtained from the third-party defendant (ultimate wrongdoer). The lien provides for reimbursement to the workers' compensation insurance company of a percentage of the benefits recovered from the ultimate wrongdoer. Therefore, the employee does not receive double benefits and the workers' compensation carrier can be reimbursed for past of what it had expended.

What is the ‘coming and going’ rule?

Most state workers' compensation systems preclude coverage for injuries sustained while an employee is commuting to and from work (hence the name "coming and going"). There are many exceptions to this rule - such as where the scope of the employee's duties includes travel or where the employee was running an errand for the employer during his/her commute. Inquiry as to whether the "coming and going" rule applies to your particular situation should be made before simply ruling out the possibility of coverage for an accident which occurred during your commute to or from work.

Can a wife recover for loss of services in workers' compensation?

No. The benefits are paid to the worker for the worker's loss. Additionally, there are no punitive damage awards available under workers' compensation programs. Benefits in workers' compensation are limited and supposedly expeditiously paid. The legal defenses available in a civil action such as comparative negligence and assumption of the risk are not available to the employer in workers' compensation.

Is there a statute of limitations in a workers' compensation action?

Yes. Each State program has rules established under which an employee is required to file a claim within a certain time limit. Usually traumatic claims must be brought within a time frame that runs from the date of the accident, date of last medical treatment or the date of the last payment of benefits. In latent disease cases, i.e., lung cancer, toxic disease or mesothelioma, the time may run from the date of the last exposure, date of manifestation of the disease and/or date of the quantification of the disease, i.e., date of the pulmonary function test. The time limits are usually established by individual State statutes.

If I die as a result of a fatal workers' compensation accident may my dependents obtain benefits on my behalf?

If the cause of an employee's death is related to an injury or exposure at work, then dependency benefits are usually paid to the dependents of the deceased worker. Dependency status is usually determined by statutory language and a spouse and children living with the decedent at the time of his death are resumed in many jurisdictions to be dependents. Other dependents may be required to prove their dependency status that may be full or partial. The amount of the dependency benefits are usually determined by the wages in effect at the time of the accident or exposure.

I have been injured in a work-related accident and I am receiving workers’ compensation benefits. When should I consult an attorney?

It is never too soon to consult an attorney after sustaining a work related injury, even if for no other reason that to have the workers’ compensation system explained to you, and what to expect from the process. There is a substantial likelihood that the insurance company will eventually challenge a worker’s right to compensation benefits, and the insurance company begins preparing a litigation strategy to get an injured worker off compensation from the time that the adjuster opens the file. Not only is it critical for the injured worker to consult an attorney as soon as possible especially if the injury is serious, it is recommended that you get in touch with an attorney experienced in workers’ compensation law.

How does the law determine if I am an employee or an independent contractor?

Sometimes there is a question of whether a worker is an employee or an independent contractor. The courts will usually look to the relationship and determine whether the employer had the right to control how the employee performed the job. If that is unclear, the court may look to the nature of the relationship between the employee and the employer. If the employee is substantially economically dependent upon the employer then court may determine that an employee-employer relationship exists.

Can I pursue a lawsuit and claim workers' compensation?

Since a claim under the workers' compensation system provides the employee with a remedy for injury or illness arising out of the course of employment (strict liability - no need for the employee to prove fault or negligence of the employer), you are typically prohibited from bringing a separate lawsuit for negligence against the employer.

However, this does not preclude the bringing of a lawsuit against third parties who have culpability for the injury. For example, if you are injured at work but someone outside your company caused the accident to happen (i.e.- a wire cable installer negligently hid a wire that caused your trip and fall), you may sue the cable company.

In addition, if your employer did not carry workers' compensation coverage, you may be able to sue the employer based upon its negligence or fault for your injuries. Also, there are some harassment claims that may be brought as a State civil action or a Federal cause of action. This is becoming more common in sex harassment claims. An attorney with expertise in the workers' compensation field can help you pursue all available remedies.

If I get injured on my lunch hour, am I covered by workers' compensation insurance?

Usually, if an employee is injured at lunch it is considered outside the scope of the employment relationship.

I have just been injured at work, and need treatment. Can I see my own doctor, or do I have to go to my employer’s doctors?

Initially you see one of your employer’s designed physicians. Your employer has a list. After 90 days, you may see your own. The Workers’ Compensation Act expressly provides that it is the duty of the employer “to provide a clearly written notification of the employee’s rights and duties” regarding his/her rights to medical treatment. It is the employer’s responsibility to “ensure that the employee has been informed and that he/she understands these rights and duties”. The employer can only establish that it has met its responsibility by obtaining your signature on a Bureau form setting forth your responsibilities to treat with one of its panel physicians. There is an exception to the 90-day rule. If your boss has not complied, your best step is to contact a workers’ compensation attorney about the possibility of seeing your own doctor within the 90-day period.

What happens if I injure my back while lifting at work and I previously had back surgery for a non-work related accident?

Pre-existing medical conditions are taken into consideration in determining the causal relationship of a work related injury. If a prior medical condition becomes aggravated, accelerated or exacerbated by a subsequent work related injury the workers' compensation carrier is usually responsible for the increased disability including medical treatment.

Does workers' compensation cover a death on the job?

Yes. Death benefits are paid to the surviving spouse (usually until remarriage) and to any minor children. There may be a maximum cap on t he amount of benefits you can receive.

I received a letter from my insurance company that I must go to an ‘independent medical examination.’ What is that?

Truth of the matter is that there is no such thing as an "Independent" Medical Evaluation. Most treating physicians favor their patients over the insurance company. The "independent" medical evaluating physicians, on the other hand, receive substantial compensation for their evaluations, medical reports, and testimony from the insurance company, and therefore, favor the insurance company and not your best interests. The "independent" evaluations are in fact, "Defense Medical Evaluations." It is strongly recommended that you consult an attorney before attending one of them.

I have just been injured at work, and need treatment. Can I see my own doctor, or do I have to go to my employer’s doctors?

Initially you see one of your employer’s designed physicians. Your employer has a list. After 90 days, you may see your own. The Workers’ Compensation Act expressly provides that it is the duty of the employer “to provide a clearly written notification of the employee’s rights and duties” regarding his/her rights to medical treatment. It is the employer’s responsibility to “ensure that the employee has been informed and that he/she understands these rights and duties”. The employer can only establish that it has met its responsibility by obtaining your signature on a Bureau form setting forth your responsibilities to treat with one of its panel physicians. There is an exception to the 90-day rule. If your boss has not complied, your best step is to contact a workers’ compensation attorney about the possibility of seeing your own doctor within the 90-day period.

My workers’ compensation insurance claims adjuster has been very helpful, informative, and nice. I don’t need an attorney in this situation, do i?

You most certainly do need an attorney, regardless of how nice a person the insurance claims adjuster appears to be. The problem with taking the advice of an insurance adjuster is that the adjuster’s motivation for making decisions is to keep costs down and profits up. This goal is in direct conflict with the injured worker’s best interests, which is to obtain the best medical care and ongoing wage loss benefits for as long as the injured worker is unable to return to work. An insurance adjuster is trained to reduce the cost of the claim any way possible, even to the extent of violating the provisions of the Workers’ Compensation Act. Although the Workers’ Compensation Act provides for penalties for insurance company misconduct, those provisions do not seem to keep violations at a minimum.

I currently am on worker's compensation. Can my employer make me pay for my own health insurance while I’m off?

The employer generally has no obligation to maintain health coverage at its expense, although you probably have a right to COBRA it. Also, check the firm's long term and short-term disability policies. Depending on what state you work in, your rights may be also different under some states' workers comp laws.