Workers’ Compensation Claims
Legal Questions and Answers about Worker’s Compensation
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.