FAQ'S - WORKERS' COMPENSATION

If you have been injured at work or if a workplace accident accelerates or aggravates a pre-existing condition you may be eligible for workers' compensation benefits. 

Lost Wages The most common benefit which is provided through workers’  compensation is reimbursement for lost wages. These benefits can be paid  on a temporary basis, when the employee needs time off work to recover,  or a permanent basis if the employee will never fully recover from his  or her injuries. In a majority of cases employees will miss some work  and will have medical expenses but they will fully recover and will be  able to return to their old duties. These employees will be reimbursed  for the work that they missed. The amount of the reimbursement for lost  wages is usually equal to a percentage of what the employee would have  earned if they had been working. When a disability will have a permanent effect on the employee’s  ability to compete in the workforce and earn money then the employee may  get reimbursement for future lost wages. The amount of the benefits is  usually an estimate of the difference between what the individual could  earn without the disability and what their current earning potential is.  Again, every state can have its own scheme for calculating benefits. In extreme cases, where an employee cannot work at all, they are  entitled to total disability benefits. This is similar to future lost  wages except that it is not offset by any other amount. If an employee  has zero earning potential then workers’ compensation could be the only  income that they have. The amount of a total disability benefit could be  based on what the individual was earning at the time of the injury or  what their anticipated future earnings would be.

Healthcare In addition to lost wages most states provide medical benefits.  Employees can get the treatments which are reasonable and necessary to cure  or relieve their injury. They can get reimbursement for medical bills  and for prescription medications. There may be certain limitations  however, like requiring the individual to see a particular doctor. In  some cases, workers’ compensation will also pay for transportation to  the hospital. The cost of future medical expenses may also be figured  into the amount of a monetary award.

Rehabilitation There are two major types of rehabilitation; medical and vocational.  Many people think of physical therapy when they hear the word  “rehabilitation,” but it can also mean preparing for a new job. If an  employee is unable to return to his or her former position they may need  vocational training. Employees in vocational training will generally  get partial income too. They will be unable to work, both due to their  disability and the fact that they must attend training, and they may  require financial support.

Conclusion These are just some of the benefits that are usually offered through  workers’ compensation. States can limit these benefits or offer much  more. Although the benefits vary from state to state, each state has a  schedule for calculating the appropriate benefit due. An employee can  get a good sense of what they may be entitled to by looking at their  states laws or talking to an attorney.  

Many employees are aware of basic procedures they must follow when  they are injured on the job, such as notifying their employer and filing  a claim form. What they may not know is that their employer has  additional obligations under the workers’ compensation system. These  duties can range anywhere from providing employees with claim forms in a  timely manner to addressing harassment in the workplace. Failure to  comply with these obligations can lead to fines and even civil or  criminal liability. The first and most basic expectation of employers is that they  participate in the workers’ compensation system. Each state has their  own requirements about which businesses must participate, but usually,  only very small businesses are excluded. An employer that is required to  participate but fails to carry insurance for their employees is subject  to fines and civil or criminal liability. An employer who participates in workers’ compensation usually has  certain obligations towards employees and must submit reports related to  workers’ compensation. The obligations towards employees might include  posting a sign stating that the employer is in compliance with workers’  compensation and providing an injured employee with a claim form within a  certain period of time. The reporting requirements could include  providing a statement for every injury claim or providing more general  reports on the number of accidents which have occurred. Naturally, employers are expected to provide emergency medical care  for employees but they are usually also expected to provide ongoing  medical attention and to cooperate with rehabilitation plans. In some  states employers will even be required to provide rehabilitation  counseling for employees who will miss work for a certain period of  time. The term “rehabilitation” can be used to include more than just  medical needs- it could include vocational training. The idea is that  this is what the employee needs in order to become productive again-  whether it be in their old position or in a new one. An expectation that goes hand in hand with the obligation to  cooperate with the employee’s rehabilitation plan is the duty not to  retaliate against an employee just because they made a claim for  workers’ compensation benefits or because they require certain  accommodations. In order to keep employers from taking retaliatory  actions, states may allow the employee to take certain actions including  bringing a lawsuit, particularly if the employee is fired in  retaliation for bringing a claim. If an employee is fired they will  usually have the right to an administrative hearing or they will have  the opportunity to sue their employer for wrongful discharge. In general, employers don’t have a legal duty to make sure that no  one gets hurt in the workplace. If other employees are not properly  supervised or if there is not adequate security, this does not give rise  to a suit against the employer. These are the kind of negligence claims  which are generally barred by workers’ compensation. There can be  exceptions, however when an employer intentionally creates an unsafe  work environment. Also, employers have some responsibility to deal with  issues which create a hostile work environment like sexual harassment.  If an employer is aware of the conditions, or should be aware of them,  and fails to act, then they may be personally liable for an injury that  results.  

If you are receiving benefits from workers’ compensation for a  disability, the effect of going back to work will depend on the type of  benefit involved and the laws in your state. Although the details of  each state’s workers’ compensation plans vary, there are characteristics  that most plans share in common. There are two major categories of disability benefits: temporary and  permanent. Temporary benefits are given when an employee needs to be  away from work for a short period of time for medical attention or  recovery. These benefits are intended to be temporary and expire when  the employee returns to work. Permanent disability benefits are given  when the employee will never fully recover from their injury and  therefore, their future earning potential is affected. The amount of the  benefit reflects future lost wages (the difference between what the  person would have earned and what they are able to earn with the  disability). In cases where the employee is unable to do any work as a  result of their injury, the individual would receive total disability  benefits (these can be temporary or permanent depending on how long the  disability prevents the person from working). This amount is generally  calculated considering what the employee was able to earn before his or  her injury. When a person returns to work, temporary disability benefits are  terminated, since there is no need to compensate the person for lost  wages since they are now able to work. In some states, the mere fact  that the person returns to their former position would be enough to end  the disability benefits, but other states require a letter from the  doctor saying that an employee is able to return to full duty. Total disability benefits are given when an employee is considered  unable to do any work. Therefore, if the employee returns to work or  finds a new job they will be unable to collect benefits. In general, if  the person resumes working their benefits will terminate. Different  states use different standards to determine when benefits will end. Some  states will ask whether the person is capable of finding sustained  gainful employment while other states will require that the person  actually has an opportunity to perform a gainful and suitable  occupation. The question is not just whether or not the person is  capable of performing at a job but whether the person actually has a  present opportunity for employment, such as a job offer. Individuals who receive permanent disability benefits generally  receive an amount that is based on their previous earnings and  compensates them for future lost wages. The idea is that the employee  may be able to find another job but they may not be able to earn the  same wage. If an employee is receiving benefits and ends up finding a  job that pays the same wage or more, their disability benefits will  generally not terminate. In general, fluctuations in the amount that the  employee earns will not cause his or her benefits to be reduced or  discontinued. This includes reductions in salary as well. If the  employee earns less than expected then the amount of disability benefits  is not increased. The amount of the benefit is calculated considering  the effect of the disability on employment so if the disabling condition  doesn’t change then the amount of the benefits generally shouldn’t  either. The effect of returning to work, whether in your former position or  to a new job, will vary from state to state. An employee who is being  paid workers compensation for future lost earnings or who is totally  disabled should use caution before making major changes in their  employment status. These changes could affect their benefits. These  individuals should also consider that they may have a duty to report  changes in their employment to the company through which they obtained  workers’ compensation or to the insurer who is paying the benefits. An  employee who fails to do this may find that they are responsible for  reimbursing workers’ compensation for any excessive payments made. The  financial stakes in these cases can be high so a worker in this  situation may want to consult an attorney before going back to work. An  attorney may also be able to inform the employee of other options  available to them such as applying for social security disability  benefits.  

The short answer to that question is “Yes.” A lawyer can certainly  help you understand the workers’ compensation process and to help you  formulate your claim. What you probably really want to know is “Should I  have a lawyer help me with my workers’ compensation claim?” Is it going  to be worth the financial investment?" Well, that is a more difficult  question. It is going to depend on the situation. A vast majority of  workers’ compensation claims are easily handled between the employee and  the employer but some can get complicated and eventually end up in  court. The first step in making a claim for workers’ compensation benefits  is filing a claim with your employer. The advantage of having an  attorney when you first file your claim is that a lawyer can help you to  accurately and honestly describe the event which caused your injury  while still avoiding the pitfalls that may prevent you from receiving  benefits- like suggesting that you were intoxicated or engaging in  irresponsible behavior at the time of the incident. Generally, it is not necessary to have a lawyer when you first file a  claim. The need for a lawyer is more likely to arise after the claim  has been denied. Each state has its own appeals process for workers’  compensation claims that have been denied. When a claim is denied there  is usually an administrative appeal which is often followed by the  opportunity to appeal to a special board or commission. In some cases,  an appeal will be heard by a workers’ compensation court. Most people  would want a lawyer before going to court. Mostly because they are  uncomfortable in a courtroom setting but also because the other side  will probably have a lawyer. Some workers compensation cases are even  appealed to the highest court in the state (usually called the Supreme  Court). Whether or not you should have the assistance of an attorney probably  depends on the nature and severity of your injury. If you have a  serious injury, a work-related disease, or the permanent aggravation of a  preexisting condition you may be entitled to a monetary award for  future medical expenses and lost wages. If you are unable to do the same  work or if you are unable to work at all, then the stakes of a workers  compensation claim will be high. The type of benefits that you will  receive through the program (monetary benefits, vocational training  etc.) could be critical to your well-being and financial outlook. If you  have the type of injury that has permanent or long term debilitating  effects then you probably want the assistance of an attorney. Finally, another benefit to having an attorney is that sometimes,  workers’ compensation is not your only option. Although in a majority of  cases you do not have the right to sue your employer, there are a few  narrow exceptions. If the injury was the result of an intentional act  then you may have the right to sue. If the injury results from a  defective product or machine then you could have a claim against the  manufacturer of that item. An attorney can help you consider these  options as well as other options that may be unique to your situation.  

Workers’ compensation is a system created by state law. Most  employers are required to participate in the system. Employers  contribute money to a fund that then provides benefits to workers who  are injured on the job. In theory, this system for workplace injuries  works to the benefit of employees and employers. Employees benefit  because they do not have to prove that their employer was at fault in  order to be compensated for their injury. The employer benefits because  the employee gives up the right to sue the employer. The employer’s  liability insurance goes down and they have more certainty about future  expenses. Both parties get to avoid the time, hassle and uncertainty  associated with a lawsuit. Each state has its own set of workers’ compensation statutes but most  systems operate in a similar fashion. When an injury occurs, the  employee notifies his or her employer and fills out a claim sheet. Both  have certain obligations – the employee must report the incident in a  timely fashion and the employer must provide them with a claim form, and  often other information, in a timely fashion. The time-period to comply  with these rules varies between states. If the claim is initially denied, there is an appeals process. The  particular process will depend on state law. There is usually an  administrative process where the issue is reviewed and then an appeal to  a special court or board if necessary. Sometimes these decisions are  reviewed by the highest court in the state. The benefits of workers’ compensation go beyond reimbursing medical  bills or paying for lost wages while unable to work. The benefits may  include compensation for future benefits lost and for vocational  training. If an injury is so severe that it will permanently affect the  employee’s ability to engage in certain employment and earn a certain  wage they may be eligible for a monetary award. If the employee is  unable to return to his or old position but can still work, workers’  compensation can provide vocational training so that the employee can  find gainful employment in a new job. The downside to workers’ compensation is that employees do not have  the right to sue their employers for most workplace injuries or  illnesses. The amount an employee will receive in compensation may be  less than what they could have received with a successful lawsuit. On  the other hand, an employee that could not have proven that the employer  was negligent would have received nothing. There are certain instances when an employee may still have the right  to sue. One example is if the employer or their agent does something to  harm to the worker intentionally. Even when workers’ compensation is  the exclusive remedy for the employee, they retain the right to sue  people other than their employer. If an employee is injured at work  using a product made by third party they can go after the third party.  If they succeed, however, then the employer may be able to go after them  for any workers’ compensation benefits already paid out. Overall, most are content with this system of dealing with workplace  injuries. There are no major efforts to reform the system. Although some  of the payouts may be small they are easier to obtain and accessible to  more people. Quick assistance for injured employees means that they can  recover more quickly and thus return to work.  

It is well known that workers’ compensation is available for people  who are injured on the job. What may not be so clear is what constitutes  an injury. If you have to pull your co-workers bloody hand from a piece  of machinery, causing you emotional distress, is that a compensable  injury? A court in Illinois said yes. Ultimately, whether certain  emotional or mental affects of workplace events will be covered by  workers’ compensation depends on state law and how the courts rule in  similar matters. Therefore, the answer can vary tremendously from state  to state. As in all workers’ compensation claims, an employee making a claim  for emotional distress or mental stress must show that there has been an  injury and that the injury was work-related. Many states include mental  and emotional conditions in their definitions of injury, but most  states have definitions that are more ambiguous. It is often necessary  to look at decisions of the workers’ compensation courts and the civil  courts in order to understand how the law has been interpreted. Some state laws include the requirement that an injury manifest  itself with physical symptoms. What the courts consider a physical  symptom is also something that will vary. Some courts require objective  physical evidence of an emotional response like fainting, sickly  appearance, pale face, or nervousness. Other courts will use a more  subjective standard and may accept evidence of changed emotional state. If an employee can show that they have suffered an injury, then they  must still show that the injury was the result of a work-related event.  Usually a claim is considered work-related if it occurs while the  employee is performing their usual duties, while they are on breaks, and  when they are running errands for the benefit of their employer.  Company social events are usually covered by workers’ compensation too.  The work-related activities definition would be the same for a person  making a claim for a mental or emotional problem as someone making a  claim for a broken leg. The difference is it may be harder for the  former to prove the connection between their injury and the workplace. When a traumatizing event occurs, such as pulling an injured hand out  of a machine, the connection between the emotional response and the  event is clear. If the emotional distress is the result of harassment or  the stress of work duties, then it may be more difficult to show a  connection between the symptoms and the cause. This is the challenge of  bringing claims for mental and emotional conditions that do not result  from a physical injury. Since this area of law is still developing, it can be difficult to  predict when a condition will be covered. Courts have gone both ways,  for example, about whether or not distress caused by workplace  discrimination or harassment is compensable. When it comes to stress  caused by an employee doing his or her regular duties or because his or  her duties have changed, most courts have found that the employee should  not be compensated. This area of law continues to change as society is  more willing to acknowledge the affects of nonphysical injuries. Finally, there is the issue of emotional distress that is the result  of an intentional act by the employer. If the employer, or one of its  agents, does something with the intent to cause distress then it may  take the case out of the realm of workers’ compensation and allow the  employee to bring a private lawsuit. A careful reading of state law is  needed to determine if workers’ compensation remains the exclusive  remedy in that situation so an experienced workers’ compensation  attorney should be consulted. Often, an employee will have the  additional option of going to court under these or similar  circumstances.