What is worker's compensation?
Who and what is covered?
Who is eligible for worker's compensation?
Where must the injury occur?
What steps should a worker take after being injured?
What benefits are provided?
What are a worker's rights in seeing the doctor?
What's the best way to use the services of a lawyer?
Can workers sue employers for accidents and injuries?
If you are injured on the job -- or suffer a work-
related illness or disease that prevents you from
working, you are eligible to receive benefits from
your state worker's compensation program. This is
sometimes called worker's compensation. Workers are
also entitled to free medical care. If a worker's
disability is classified as permanent or results in
death, additional benefits are available to the worker
and his or her family.
What is worker's compensation?
In most states, employers are required to purchase
insurance for their employees from a workers'
compensation insurance company. This is sometimes
called an insurance carrier. For some companies, this
can be a state corporation. Other companies will use
private insurers. In some states, larger employers
which are clearly solvent are allowed to self-insure
or act as their own insurance companies. Smaller
companies, with fewer than three or four employees,
are not required to carry worker's compensation
insurance at all.
In all situations, employees do not pay for or take
out worker's compensation insurance. When a worker is
injured, his or her claim is filed with the insurance
company, or self-insuring employer, which pays medical
and disability benefits according to a state-approved
formula. In essence, then, worker's compensation is
insurance to protect employers when their employees
are injured on the job.
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Who and what is covered?
Most on-the-job injuries are covered by worker's
compensation. The worker's compensation system is
designed to provide benefits to injured workers no
matter whether an injury is caused by the
employer's or employee's negligence.
There are a few limits. Generally, injuries are not
covered when they are caused by alcohol intoxication
or use of illegal drugs. Coverage may be denied in
situations involving:
- Self-inflicted injuries (including those
caused by a person who starts a fight)
- Injuries suffered while a worker was committing a
serious crime
- Injuries suffered while an employee was not on the
job
- Injuries suffered when an employee's conduct
violated company policy.
Injuries do not have to have a definite date of
onset to be covered. The injury does not need to be
caused by an accident, such as a fall from a ladder.
Many workers, for example, receive compensation for
repetitive stress injuries that are caused by overuse
or misuse of equipment, including computers, during a
long period of time.
Some workers are compensated for some illnesses and
diseases that are the gradual result of work
conditions. These can include heart conditions, eye
problems from computer monitors, lung disease and
stress-related digestive problems.
People often seek worker's compensation benefits
because the benefits are usually more extensive than
sick or disability insurance. The time period for
coverage is often longer and sometimes benefits are
permanent.
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Who is eligible for worker's compensation?
Most workers are eligible for worker's compensation
coverage, but every state excludes some workers.
Exclusions often include:
- Business owners
- Independent contractors
- Casual workers
- Domestic employees in private homes
- Farm workers
- Maritime workers
- Railroad employees
- Unpaid volunteers
Check the worker's compensation law of your state
to see whether these exclusions affect you.
Federal government employees are also excluded from
state worker's compensation coverage, but they receive
worker's compensation benefits under a separate
federal law.
In addition, about one-third of the states do not
require worker's compensation coverage for employers
having fewer than a designated number of employees.
The minimum ranges from three to five, depending on
the state.
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Where must the injury occur?
Someone does not have to be injured at the work site
to be eligible for worker's compensation benefits. As
long as the injury is job-related, it's covered. For
example, someone will be covered if he is injured
while traveling on business, doing a work-related
errand or even attending a required business-related
social function.
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What steps should a worker take after being injured?
To claim worker's compensation benefits, promptly
report the work-related injury or sickness to your
employer. Most states require that this be done within
two to 30 days following an injury. Failure to report
an injury immediately can and does result in the
denial of eligibility for benefits. If an injury
occurs over time, such as a eye problem or carpal
tunnel syndrome, it is necessary to report the problem
soon after it is discovered and when the worker
realizes that it is caused by work.
Next, get the medical treatment you need and follow
the doctor's instructions exactly. This may include
an "off-work order" or a "limited-duties work
order." Finally, file a claim with your worker's
compensation carrier. Necessary forms must be provided
by your employer. Ask someone in the personnel or
benefits department. Be sure that both the initial
report and the claim is in writing and signed by a
management-level staff position. Keep a signed copy.
Finally, make sure all correspondence with the
employer, its insurance carrier and the doctor about
the worker's compensation claim are saved. This will
be helpful if essential facts are disputed or if the
case is scheduled for a hearing.
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What benefits are provided?
The worker's compensation system provides replacement
income, medical expenses and sometimes vocational
rehabilitation benefits. The vocational rehabilitation
benefits often include on- the-job training,
schooling or job placement assistance. The benefits
paid through worker's compensation, however, are
almost always limited to relatively modest amounts.
In general, worker's compensation does not pay for
job accommodations. Many plans view disability as a
permanent debilitating condition. Vocational training
in worker's compensation typically focuses on
developing skills for a new job or being placed in a
different kind of work.
If you have a job-related injury and need adaptive
technology to continue working, consider using the
employment accommodation provisions of the Americans
with Disabilities Act (ADA). Unlike worker's
compensation, the ADA is not an insurance program.
Seeking an accommodation through it means demanding a
civil right that is enforceable by your local federal
district court. However, the initial request and
process for providing an accommodation does not need
to be confrontational and adversarial.
If you become temporarily unable to work, you will
usually receive two-thirds of the average wage up to a
fixed ceiling. These payments are tax free. Workers
who received adequate wages prior to the injury will
fare reasonably well in most states. You will be
eligible for these wage-loss replacement benefits as
soon as you lose a few days of work because of an
injury or illness that is covered by worker's
compensation.
Some workers may be eligible for long-term or lump-
sum benefits. These are for workers who become
permanently unable to do the work they were doing
prior to injury or unable to do any work at all. The
amount of the payment the worker may be entitled to
receive varies greatly with the nature and extent of
the injuries.
If a permanent work disability is anticipated,
contact the worker's compensation office as soon as
possible. These benefits are rather complex and may
take a while to process.
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What are a worker's rights in seeing the doctor?
In some states, workers have a right to see their own
doctors if this request is made in writing before
the injury occurs. More typically, however, injured
workers are referred to a doctor recruited and paid
for by their employers.
The doctor's report will have a big impact upon the
benefits the worker will receive. While it is crucial
that workers tell the doctor the truth about both
their injuries and their medical history, it is
important to clearly identify all possible job-
related medical problems and sources of pain. In
short, this is no time to downplay or gloss over the
presence of a pain or medical problem. Of course,
being untruthful or less than honest can lead to
charges of fraud.
Keep in mind that a doctor paid by an employer's
insurance company is not the worker's friend. The
desire to get future business may motivate a doctor to
minimize the seriousness of the injury or to identify
it as a pre-existing condition.
For example, if someone injures her back and the
doctor asks if there ever has been back problems
before, it would be unwise to treat the doctor to a 20-
year history of every time you suffered a minor
pain or ache. Just say "no," unless you really have
suffered a significant previous injury or chronic
condition.
Some wonder if they have a right to see their own
doctor after they have been seen by the insurance
company doctor. I wish there was a clear answer to
this. State worker's compensation systems establish
technical -- and often confusing rules -- in this
area. Often, the worker has the right to ask for
another doctor at the insurance company's expense if
the worker clearly states he or she doesn't like the
one the insurance company provided. There is
sometimes a waiting period before the worker can get a
second doctor. Also, if the injury is serious, the
worker usually has the right to a second opinion.
Some states allow for the automatic right to transfer
the treatment to the worker's own doctor or health
plan with the cost being paid for by the worker's
compensation insurance company. This happens after
the worker has seen the worker's compensation doctor
for a specified period of time, usually 90 days. To
understand applicable rights and responsibilities, get
a copy of your state's rules or, if necessary,
research your state worker's compensation laws and
regulations in the law library.
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What's the best way to use the services of a lawyer?
A lawyer is usually not necessary unless a permanent
disability is suffered or all or part of the worker's
compensation claim is denied. If one of these
situations occurs, it will be helpful to do some
research to be familiar with rights and duties. For
example, many claims are denied based on a doctor's
report claiming that the worker is not injured. If
the worker disputes this, he may have a right to
obtain a second doctor's opinion paid for by the
worker's compensation insurer.
If the claim is denied, consider hiring an
experienced worker's compensation lawyer to help
navigate the appeals process. The best way to find a
good lawyer is often through word of mouth; talk with
other injured workers or check with a local union or
other workers' organization.
In most states, fees for legal representation in
worker's compensation cases are limited to a range of
between 10 to 15 percent of any eventual award.
Because these fees are relatively modest, worker's
compensation lawyers customarily take on many
clients. As a result, they do not have time to
provide much individual attention. Most of the contact
with the attorney's office will be with paralegal
staff and other support personnel. This is not a bad
thing in itself, if the office is well operated by
support staff. Be sure the office is able to stay on
top of paperwork and filing deadlines and that a
knowledgeable person is available to answer your
questions clearly and promptly.
Some worker's compensation carriers take an
aggressive stance and deny legitimate claims for
worker's compensation. When this happens, it's often
because the insurer claims the worker has not been
injured or that the injury is not serious enough to
qualify for temporary or total disability. Commonly,
this is done after a private investigator is hired by
the insurance company and then follows the worker and
obtains photographs showing him engaging in fairly
strenuous physical activity (such as lifting a box or
mowing the lawn) despite claiming a back injury.
If legitimate benefits are denied, you should
immediately file an appeal with the state appeals
agency. This is often called the Industrial Accident
Board, the Worker's Compensation Appeals Board or
something similar. The worker might want to hire an
attorney to help with the claim.
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Can workers sue employers for accidents and injuries?
In general, people who receive worker's compensation
cannot turn around and sue their employers in court.
The worker's compensation system was established as
part of a legal trade-off. In exchange for giving up
the right to sue an employer in court, the worker gets
worker's compensation benefits no matter who was at
fault.
The worker might be able to sue in court if the
injury was caused by someone other than the employer.
This can include a visitor or outside contractor.
Another avenue where lawsuits are possible is when
injuries are caused by a defective product, such as a
flaw in the construction of workplace equipment.
Finally, in most states, it is a violation of the
worker's compensation laws to discriminate against an
employee for filing a worker's compensation claim. If
this happens, immediately report it to the local
worker's compensation office.
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