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 Workers'
Compensation Claims
Q.
Who pays workers' compensation benefits?
A. Employers are required to purchase insurance for
their employees from a workers' compensation insurance
company. In some instances larger employers who are
clearly solvent are allowed to self-insure or act as
their own insurance company. Some smaller companies
(fewer than four or five employees) are not required to
carry workers' compensation. When a worker is injured,
his or her claim is filed with the insurance company (or
self insuring employer) who pays medical and disability
benefits according to a state-approved formula.
Q.
Are all on the job injuries covered?
A. Most are. The workers' compensation system is
designed to provide benefits to injured workers no
matter whether an injury is caused by the worker's
negligence, or by the employer's negligence. This
"no-fault" system however, has some limits.
Generally, injuries caused because an employee is
intoxicated or using illegal drugs are not covered.
Coverage also is typically denied when injuries are
self-inflicted (including starting a fight), when
injuries are suffered while a worker is committing a
crime, when the employee was not on the job, and when
injuries occurred when the worker was violating company
policy (typically safety concerns).
Q.
Does an injury have to have a definite date of onset in
order to be covered?
A. No. Your injury does not need to be caused by an
accident, such as a fall from a ladder. Many workers
receive compensation for repetitive stress injuries,
including carpal tunnel syndrome and back problems, and
for injuries caused by overuse or misuse over a long
period of time. You may also be covered for some
illnesses and diseases that develop gradually as a
result of work conditions, such as heart conditions,
lung disease, and stress-related problems.
Q.
Am I covered by workers' compensation?
A. Most workers are eligible. Notable exceptions include
business owners, independent contractors, casual
workers, domestic employees in private homes, farm
workers, maritime workers, railroad employees, and
unpaid volunteers. Federal government employees are also
excluded from state workers' compensation laws, but they
can receive benefits under a separate federal law.
Finally, employees who work for an employer who employs
only a small number of people (typically three to five)
may not be covered, as state laws do not require the
employer to obtain coverage.
Q.
Do I have to be injured at my workplace to be covered by
workers' compensation?
A. No. As long as your injury is job-related, it will be
covered. For example, coverage exists if you are injured
while traveling on business, doing a work-related
errand, or even attending a business-related social
function.
Q.
If I am injured on my lunch hour, am I covered?
A. Usually not, as it would be considered outside of the
scope of your employment relationship.
Q.
How do I claim workers' compensation benefits?
A. First, promptly report the injury or sickness to your
employer. There is usually a time requirement, so don't
delay with this! If an injury occurs over time, you must
report your condition soon after you discover it and
realize that it was caused by your work. Next, get the
medical attention you need and follow the doctor's
instructions exactly. This may include a restriction
from work entirely, or a limited duty restriction.
Finally, file a claim with your workers' compensation
insurance carrier. Necessary forms must be provided by
your employer. Make sure you save copies of all
correspondence with your employer, its insurance
carrier, and your doctor concerning your claim.
Q.
What kind of benefits will I receive?
A. You are entitled to receive replacement income,
medical expenses and vocational rehabilitation benefits,
if appropriate. The rehabilitation benefits can include
on the job training, schooling, or job placement
assistance. Disability compensation is typically paid at
a rate of two-thirds of your average wage, up to a fixed
ceiling. If you become permanently unable to do the work
you were doing prior to the injury, or unable to do any
work at all, you may be eligible to receive long-term or
lump-sum benefits. The amount of the payment you may be
entitled to receive will vary depending upon the nature
and extent of your injury.
Q.
Can I be treated by my own doctor?
A. Usually not. If your employer or their worker's
compensation insurer does not specify a doctor for you
to see, then you can pick your own doctor to care for
you. More typically, however, injured workers are
referred to a doctor recruited and paid for by their
employers and their insurance companies. The doctor's
report will have a big impact upon the benefits you
receive. It is crucial that you tell the doctor the
truth about both your injury and your medical history
(your benefits may be denied if you don't). Be sure to
clearly identify all possible job-related medical
problems and sources of pain. This is not the time to
downplay or gloss over the presence of a problem or
pain. Keep in mind that a doctor paid for by your
employer's insurance company is not your friend. The
desire to get future business may motivate a doctor to
minimize the seriousness of your injury or to identify
it as a pre-existing condition. For example, if your
injure your back and the doctor asks you if you have
ever had back problems before, it would be unwise to
detail for the doctor a 20 year history of every time
you suffered a minor ache or pain. Just say
"no" unless you really have suffered a
significant previous injury or chronic condition.
Q.
If I'm initially treated by a company doctor, do I have
the right to see my own doctor at some point?
A. Again, usually not. If the company doctor refers you
to your doctor, then it will be accepted and you will
continue to get benefits. You may, of course, at any
time, get a second opinion, which you would have to pay
for, and if your doctor significantly disagrees with the
opinion of the company doctor, and the treatment plan,
then it would be appropriate to have your doctor call
the company doctor and discuss the differences.
Q.
What happens if I did have a pre-existing injury, and an
accident at work aggravated my condition?
A. If a prior medical condition becomes aggravated,
accelerated or exacerbated by a work accident, the
workers' compensation insurer is responsible for the
increased disability, including medical treatment.
Q.
What if my employer tells me not to file a claim, or
threatens to fire me if I do so?
A. This is illegal! If this happens, immediately report
it to your local workers' compensation office.
Q. My employer has a small business
and all employees are key. Can I be let go if he has to
fill my position because I can't come back in a timely
manner?
A. Yes. The law does not require an employer to hold a
job for any length of time. When the time comes and you
are able to return, if there is no job available, you
are entitled to continuing benefits.
Q.
Can I bring a claim against anyone else, in addition to
the workers' compensation claim?
A. Yes. In many instances, you may bring a claim against
the ultimate wrongdoer. This is called a third-party
action. Sometimes the claim is against the premises
owner or the manufacturer of a defective product. There
may be claims against another driver if you are injured
because of their negligence. Normally, there is a
"lien" , or claim, by the workers'
compensation insurance carrier, against the recovery
from the ultimate wrongdoer. In this fashion the worker
does not receive "double" benefits, and the
insurer gets reimbursed by the party who is ultimately
responsible for causing the injury.
Q.
Can my spouse recover for loss of services, and for
participating in my care?
A. No. Benefits are paid to you for your loss. Your
spouse's assistance is considered gratuitous.
Additionally, there are no "punitive damage"
awards under workers' compensation.
Q.
If I die as a result of a fatal work accident, may my
dependents obtain benefits on my behalf?
A. Yes. Dependency status is determined by statutory
language. A spouse and children living with you at the
time of your death are presumed to be dependents. The
amount of benefits are usually determined by the wages
in effect at the time of the accident.
Q.
Do I need an attorney?
A. For minor and short-lived injuries, usually no, you
don't need an attorney. If you have suffered a serious
or permanent injury, or all or part of your workers'
compensation claim is denied, it is appropriate to hire
an attorney. Legal fees in workers' compensation cases
are limited, typically between ten and twenty-five
percent of any eventual award, and are paid by the
insurance company.
In
my office we are interested in helping you, even if we
don't "take your case". We are always
available to answer your questions and give you basic
information. The consultation is absolutely free. Please
call or complete the form on the "Do
I Have A Case" link from my home page.
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