Workers Compensation

What is Workers' Compensation?
Workers' Compensation is insurance that by law your employer is required to carry in case an employee is injured on the job, becomes ill due to circumstances surrounding their job or even if death results from their job. Benefits include medical expenses, lost wages, vocational rehabilitation, and death benefits.

Workers' comp exists both as a way to benefit injured workers and as a way to protect employers. Before workers' comp laws existed, serious injury to an employee could bankrupt an employer due to the employee being able to sue their employer. Workers' compensation is a no-fault insurance system. Negligence on the part of workers or employers is not an issue in paying benefits.

Who is responsible for providing the benefits under the Workers' Compensation Act?
By law the employer is responsible for providing Workers' Compensation Insurance. In some instances the employer provides benefits directly by being self-insured otherwise the employer provides the benefit indirectly through a Workers' Compensation insurance company. A worker cannot be charged for benefits provided or any portion of their employer's Workers' Compensation insurance premium. Texas is the only state that still allows private employers to choose whether or not to maintain workers' compensation insurance.

Is workers' compensation the same as State Disability?
Workers' compensation is only for injuries or illnesses that occur due to employment. State Disability is for injuries or illnesses that are not work related. You can file a State Disability claim, but you cannot be paid both workers' compensation and State Disability for the same period of time unless under certain circumstances your workers' compensation temporary disability rate is less than State Disability, then you may be paid the difference. If your employer's insurance company denies or delays payment, you may be able to receive State Disability temporarily.

What injuries are covered by the Act?
Any worker who has sustained an injury arising out of and in the course of their employment has a potential Workers' Compensation claim. As long as your injury is job-related, it's covered. You are covered if you are injured while traveling on business, doing a work-related errand or even attending a required business-related social function. Any injury or illness that occurs due to employment is considered a workers' compensation injury. Under workers' compensation law, you will receive help if you are injured no matter who was at fault. Some types of workers' compensation injuries are: broken/fractured bones, back problems/pain, knee problems/injuries, grip loss, heart attacks, hypertension, wrist injuries including carpal tunnel syndrome, burns, shoulder pain, neck pain, headaches, etc. You may be entitled to benefits even if you are still working.

Does an injury have to have a specific date of onset in order to be covered?
Your injury does not need to be caused by a specific accident such as a fall. Many workers receive compensation for repetitive trauma injuries such as back problems that are caused by overuse or misuse over a long period of time in the performance of their normal work activity. You may also be compensated for some illnesses and diseases that are the gradual result of work conditions such as lung disease. Due to the fact that symptoms with these types of injuries reveal themselves over a period of time, the worker might not associate the eventual diagnosis of the injury as being work-related.

What workers are covered by the Act?
Many states require an employer to carry Workers' Compensation insurance only if they have a minimum number of employees such as 3 or 5. As a general rule though, if a company has employees, then they should have Workers' Compensation insurance. Each state has its own workers' comp laws, as well as its own administrative and legal structure for handling claims and disputes. Some states also require workers' comp only for employees in "hazardous" occupations. What is considered a "hazardous" category can vary widely from state to state.

Most employees are also covered if they are injured while working in another state or injured while working in another state for an employer whose principle place of business in their home state. Without Workers' Compensation coverage, an employer can be sued by an injured worker for medical and disability costs, plus damages.

Federal government employees are also excluded from state workers' compensation coverage. Employees of the federal government receive workers' compensation benefits under a separate federal law.

What should I do if I get injured on the job?
Seek emergency medical attention if needed. Immediately report your injury to your employer. An injured worker must report any accident to their employer or any employee of the employer who is in a supervisory capacity (foreman, superintendent, company nurse, etc.). Notification must be done within a set amount of time as set by state law. Most states require that this be done within two to 30 days following an injury. If an injury occurs over time (for example, a breathing problem or carpel tunnel syndrome), you must report your condition soon after you discover and realize that it is caused by your work. Your employer will provide you with a claim form on which you must describe your injury and how, when, and where it occurred. Make sure you save copies of all correspondence with your employer, its insurance carrier and your doctor concerning your workers' comp claim.

How long after an injury do I have to report it to my employer?
Immediately report your injury or illness to your supervisor. To be eligible for benefits, in most states you must report the injury within 30 days. If you have received medical benefits, the statutory time limit is usually three years from the date of the last payment to file a claim for medical benefits. If you have not received any medical benefits, the statutory time limit is usually one year from the date of your injury or illness to file a claim. Your employer is then required to make a report of the injury and notify its insurance company and/or the Workers' Compensation Commission. If no disability benefits are paid to the injured worker by the employer or carrier within the statutory time limit, then the right to any and all may be benefits is barred.

Can I lose my job because of a workers' compensation injury?
Laws prohibit your employer from discharging or discriminating against you because of your workers' compensation injury. If it is proven that an employer fires or forces to resign any injured worker in retaliation for filing a Workers' Compensation claim, the worker could file a civil lawsuit against his employer seeking damages in court.

If I receive workers' compensation, can I also sue my employer in court?
Generally, no. In exchange for giving up the right to sue an employer in court, you get Workers' Compensation benefits no matter who was at fault. Before there was a Workers' Compensation system, if you went to court, you stood to recover a large amount of money, but only if you could prove the injury was caused by your employer. You may be able to sue in court if your injury was caused by someone other than your employer such as a visitor or outside contractor or if it was caused by a defective

What workers' compensation benefits am I entitled to?
You may be entitled to receive all reasonable and necessary medical treatment, benefits for lost wages, benefits for specific injuries resulting in permanent disabilities such as loss of use and/or disfigurement (scars). You may also qualify to participate in certain physical and vocational rehabilitation programs. If the injury causes the death of an injured worker, burial expenses are covered and the dependents of the deceased worker are entitled to certain benefits.

If you become temporarily unable to work, you'll generally receive two-thirds of your average wage up to a fixed ceiling. But because these payments are tax-free, if you received decent wages prior to your injury, you'll fare reasonably well in most states. You will be eligible for these wage-loss replacement benefits as soon as you've lost a set amount of work because of an injury or illness that is covered by workers' compensation as set by state law.

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 varies greatly with the nature and extent of your injuries. If you anticipate a permanent work disability, contact your local Workers' Compensation office as soon as possible; these benefits are rather complex and may take a while to process.

What are temporary disability payments?
If you are unable to work for more than a set waiting period, you will get paid part of your lost wages. The "waiting period" will be paid if your unable to work for more than a certain number of calendar days set by state law or are hospitalized as an in-patient. The amount of Temporary Disability is generally two-thirds of your average weekly wages. You will receive these temporary disability payments during the time you qualify for the benefit. This compensation stops when the treating doctor releases you for work or says that your injury has reached a point of maximum improvement.

What are permanent disability payments?
Permanent disability is additional money that is paid to compensate you for any permanent disability you may suffer from an illness or injury due to your job. The amount you will receive depends on the extent of your disability. Workers' Compensation laws provide guidelines to determine the amount of this compensation. Your age and job at the time of your injury or illness are also factors that are considered when calculating permanent disability.

What medical benefits does the Act provide to a worker after they have sustained an on-the-job injury?
An injured worker is entitled to receive 100% of all necessary and reasonable medical expenses incurred as a result of a job-related accident. These include first aid, emergency room services, inpatient and/or outpatient hospital care, doctor's fees, prescriptions and other related expenses.

Should an injured worker apply for unemployment benefits?
In applying for unemployment benefits during the period a worker is off work due to an on-the-job injury, the worker must state in writing that they are willing and able to work. The Workers' Compensation insurance company could argue that the injured worker's statement to unemployment is contrary to their claim that they are unable to work.

Recent court decisions have recognized the financial difficulties facing an injured worker who is not receiving Temporary Disability benefits under the Act and have ruled that a worker who has applied for unemployment benefits, in certain circumstances, is not barred from claiming they are entitled to Temporary Disability benefits. It is advisable that an injured worker discusses the circumstances of their accident with a Workers' Compensation attorney before attempting to apply for unemployment benefits.

If I am injured on the job can I choose the doctor who treats me?
State Workers' Compensation systems have very strict rules regarding the doctors that you may see. Often, you have the right to ask for another doctor at the insurance company's expense if you clearly state you don't like the one the insurance company provides, although there is sometimes a waiting period before you can get a second doctor. Also, if your injury is serious, you usually have the right to a second opinion. In some states, after an insurance company's doctor has treated you for a certain period you may have the right to transfer your treatment to your own doctor. In some states, you have a right to see your own doctor if you make this request in writing before the injury occurs. If an injured worker claims they are entitled to receive or are receiving Workers' Compensation benefits, the insurance company is entitled to have the worker examined by a doctor of its own choosing at a reasonable time and place. The Workers' Compensation insurance company must pay for the exam. Failure to attend the examination could result in an interruption of benefits to the injured worker.

If I am unable to return to the type of work I did before I was injured, what happens?
If your employer has employment available to you within your medical restrictions and you decline, your employer may request a modification or termination of your benefits. If you do return to work and wages are less than what you earned before the injury, you may be entitled to partial disability. Wage benefits in most states usually will equal approximately 2/3 of the difference between your current earnings and what you earned before your injury, not exceeding the maximum compensation rate for the year you were injured.

If you're unable to return to your job due to a workers' compensation injury, you may qualify for vocational rehabilitation benefits. Your rehabilitation plan may be as simple as modifying your current job to accommodate any limitations you have suffered or may involve training for a new job.

My employer has denied my claim, what do I do?
If you, your employer, or your employer's workers' compensation insurance company have a dispute or disagreement about your claim. You should try to resolve the dispute among yourselves, if possible. Many times, disputes can be cleared up quickly and easily by communication. Commission staff can help you try to resolve a dispute informally. If the dispute cannot be resolved informally, you may be required to attend one or more dispute resolution proceedings. If an injured worker, under active medical treatment and off work under their doctor's instructions, is not receiving their benefits, they have they may have right to a hearing. At this hearing, the worker would have the opportunity to present medical evidence and witnesses in support of their claim for Workers' Compensation benefits. Workers' Compensation hearings can be complex. The insurance company will have an experienced attorney will be defending the claim and it is advisable that the injured worker retain a Workers' Compensation attorney. Contact your state's Workers' Compensation Insurance Office for more information.

State Workers' Compensation Links

When is a Workers' Compensation claim considered settled and permanently closed?
A Workers' Compensation claim is considered settled only after settlement contracts are prepared and signed by the appropriate parties and approved by the state Workers' Compensation Commission. The worker's claim is closed and they are no longer entitled to Workers' Compensation benefits for their injuries. In the event of a subsequent accident, the worker would need to file a new claim for Workers' Compensation benefits. If an injured worker has received various Workers' Compensation benefits from his employer but never signed Lump Sum Settlement contracts, he may still have a viable Workers' Compensation claim if the Statute of Limitations has not expired.

Do I need an attorney?
You have the right to be represented by an attorney for your work- related injury. Your attorney will assist you in seeing that your benefits are properly protected. Each state has different Workers' Compensation Laws. While individuals can sometimes represent themselves in these matters, it is advised to contact a Workers' Compensation or Labor Attorney as soon as possible after an accident or diagnosis of a disease or condition in order to protect your legal rights. Workers' Compensation laws are constantly changing and an attorney will be in a better position to advise you in order to protect your rights. Attorney's fees for representing an injured employee are usually paid out of the settlement or award. These are usually a percentage of the monetary recovery awarded to the injured employee. They may range from 10% to 15% of the award, depending on the complexity of the case and time involved.

How do I find out my state's workers' comp requirements?
Since the state government sets Workers' Compensation requirements, they can vary greatly from state to state. If you need further information, contact your state's Workers' Compensation Insurance Office.