Phone: (901) 525-2525
Fax: (901) 525-2526
"Workers' compensation" refers to a system of laws outlining specific benefits to which injured employees are entitled, and the procedures for obtaining such benefits. Every state has its own workers' compensation laws, which are contained in statutes, and vary somewhat from state to state. In addition, there are special workers' compensation laws for employees of the federal government, and still others for workers in specific types of industries such as railroad employees.
Under the law in most states, every business must have some form of workers' compensation insurance to cover injured employees. Filing a workers' compensation claim is similar to filing an insurance claim; it isn't a lawsuit against an employer, but rather a request for benefits.
The Purpose and Effect of Workers' Compensation Laws
Workers' compensation laws are designed to ensure that employees who are injured on the job receive fixed monetary awards, without having to litigate their claims against their employers. In this way, workers' compensation is an important safety net for employees when they are injured on the job or as a result of their job.
Most workers' compensation laws also provide employers and co-workers with a certain level of protection, by limiting the amount employees can recover from their employers, and prohibiting, in most cases, injured employees from suing their co-workers. In essence, workers' compensation is a no-fault system, where an injured worker's own negligence, or the negligence of his or her employer or co-workers, is not put at issue; rather, the injured employee is simply covered for his or her work-related injuries.
Thus, workers' compensation is an injured worker's "exclusive remedy" with respect to a work-related injury, unless he or she can point to a third party who contributed to his or her injuries. For example, because workers are often injured by products or machinery they use at work, they may, and often do, seek compensation from the manufacturers of such products.
Employers are generally not directly involved in the third-party claims of their employees, and such claims take place in civil actions, rather than in the workers' compensation system. In most cases, however, an employer can recoup its workers' compensation payments and obligations from the recovery an injured worker obtains from a lawsuit against a third party. In some states, the workers' compensation insurer and employer may enter into the lawsuit commenced by the employee and seek to protect their rights to recover the sums. In other states, the employer is given a lien against the employee's recovery. In those states, the employer and insurer must wait until the employee has made a recovery, at which point they assert the lien and the employee must then pay back monies which duplicate workers' compensation benefits previously received or receivable.
The Scope of Workers' Compensation Coverage
Workers' compensation coverage varies by state, and by occupation. For example, some states exempt certain categories of workers, such as agricultural employees, domestic employees and independent contractors, from their workers' compensation systems. Other states require coverage only if an employer employs a minimum number of employees. To determine whether you are entitled to workers' compensation benefits, you should contact an experienced workers' compensation attorney in your area.
Also, keep in mind that if you are not covered by workers' compensation, you may be able to bring a civil claim against your employer or a third party.
Workers' Compensation Benefit Claims vs. Civil Lawsuits
Workers' compensation is usually considered a substitute for a lawsuit against your employer. In exchange for not suing your employer in court, you are entitled to workers' compensation benefits, regardless of who was at fault for your injuries. Prior to the creation of the workers' compensation system, employees had no choice but to go to court to recover compensation for their work-related injuries. Now, most employees are automatically entitled to workers' compensation, but at the same time, the employer is automatically protected from most employee lawsuits.
Keep in mind, however, that even if you file a workers' compensation claim, you still may be able to bring a lawsuit if your injury was caused by someone other than your employer, or by a defective product you used on the job, such as a piece of equipment that malfunctioned.
Types of Injuries Covered by Workers' Compensation
For a work-related injury, you may be eligible for compensation for any of the injuries listed below:
There are some injuries, however, that may not be covered by workers' compensation. State courts are divided on whether an employee can recover for an injury sustained during horseplay at work. Many states will not award benefits to a person who is injured while intoxicated or who deliberately inflicts injury on himself. Furthermore, an employee who is injured while traveling to or from work is not generally entitled to benefits unless the employer has agreed to provide the worker with the means of transportation, pay the employee's cost of commuting, or if travel is required while performing his/her duties.
If a worker leaves the employer's premises to do a personal errand and is injured, he or she might not be entitled to workers' compensation benefits. However, if an employee is injured while returning from company-sponsored education classes, or goes to the restroom, visits the cafeteria, has a coffee break, or steps out of a nonsmoking office to smoke a cigarette, and is injured, workers' compensation boards and courts typically recognize that employers benefit from these "nonbusiness" employee conveniences, and often award compensation.
What To Do If You Think You Have a Claim
Here are the first steps you should take if you are injured on the job:
Report the injury to your employer
If possible, report the injury in writing and keep a copy of the report for personal records.
Complete a claim form
No matter how your employer learns of the incident, it must offer you a claim form immediately. Until this claim form is completed, the employer has no obligation to provide you benefits. Make sure the claim form is filled out completely and specifically. Keep a copy of your completed claim form. Once your employer receives your claim form, it is then the employer's responsibility to immediately notify its workers' compensation insurance company and arrange medical assistance for you.
File the claim as soon as possible
If you are seeking to claim workers' compensation benefits, you should do so quickly. Any delay on your part could lead to potential snags or delays in receiving benefits. Immediately reporting injuries and filing a claim as soon as you decide to seek compensation increases the likelihood that benefits will begin quickly.
If a dispute should arise regarding the claim, you can seek help from the workers' compensation commissioner's office in your state, but you may also want to contact an experienced workers' compensation attorney. If you are unhappy with the decision in a hearing that was held to determine some aspect of your workers' compensation claim, procedures exist for you to appeal the unfavorable result. In some states, your first appeal must be made to a workers' compensation court of appeals. Once the workers' compensation appeals has made its ruling, or if no such appeals court exists, an appeal to your state's court can usually be commenced if you are still unsatisfied with the results of your workers' compensation case.
Getting Help With a Workers' Compensation Claim
The workers' compensation system of laws is designed to provide a straightforward method for employees to receive compensation for work-related injuries. However, workers' compensation laws vary from state to state, and have quite specific procedural requirements. If you have been injured at work, contacting a lawyer who specializes in workers' compensation or personal injury law is the best way to ensure that your rights will be protected. A lawyer can protect your rights in many ways. For example, if someone other than your employer or co-worker was partly at fault for your injury, you may be able to file a liability insurance claim against that person or business.
Additionally, if your accident is not covered by workers' compensation (for example, if you are an independent contractor or because the company does not have workers' compensation insurance), you may be entitled to bring legal action against someone for whom you were working, just as you could file a claim against any other person who caused you personal injury. In such a case, you may be able to recover compensation that you couldn't recover in a workers' compensation claim, including attorney fees, compensation for pain and suffering, and punitive damages (damages to punish the party who injured you).
Go here to learn more about the role of an attorney in a workers' compensation case.
Medical Care
The injured party has the right to all reasonable necessary treatment to cure or relieve the effects of the injury. Included under medical treatment compensation are all medical bills, prescriptions, and even roundtrip mileage to the hospital. Under certain workers' compensation plans, a patient might have to use the company doctor, but usually only for a maximum of 30 days. After that time, a patient may choose a different doctor, but may have to submit a written request.
Temporary Disability
If the injured party must take time away from work due to medical reasons related to the injury, he or she might be entitled to temporary disability payments. That would provide him or her with partial compensation for lost wages. There are specific maximum and minimum limits to the pay rate, but this normally equals about two-thirds of one's average weekly gross pay, and is paid out every two weeks. After the doctor verifies an inability to work, the first temporary disability check should arrive within a few weeks.
Permanent Disability
If a worker can't completely recover from the effects of an injury, he or she could be entitled to a monetary award for his or her permanent disability. Permanent disability means that the injured party has lost some ability to compete in the open labor market of uninjured workers. The amount and rate at which permanent disability is paid depends on how great a limitation the injury places on one's activities. Other elements taken into consideration are age, occupation and earnings at the time of injury. The determination of whether an accident caused a partial or permanent disability can involve tens of thousands of dollars (usually, as compensation for future wages).
Vocational Rehabilitation
If an injury prevents a return to one's former job, assistance in getting another job (vocational rehabilitation) might be included in workers' compensation benefits. During vocational rehabilitation, a partial income is distributed, similar to temporary disability. The vocational rehabilitation benefit usually has a maximum monetary limit, and may be replaced by an offer of modified or different work from the employer.
When an employee returns to work after being injured, if the employee receives wages equal to or greater than he or she was earning prior to the injury, then it is likely workers' compensation benefits will be stopped. If, however, the employee is still experiencing a wage loss due to his or her injury, he or she may continue to receive wage loss benefits, although the benefits will most likely be for a lesser amount.
Most states provide different types of wage loss benefits. Two types of benefits that may be available are "temporary partial" and "temporary total" benefits. Temporary partial disability benefits are payable to an employee who has experienced a work injury and is temporarily disabled, but is still able to earn some wages despite a temporary disability. These benefits are generally payable based on a percentage difference between the employee's pre and post-injury earnings.
Temporary total disability benefits are generally payable to injured employees who are temporarily prohibited from working, in any capacity, as result of the work injury. These benefits are, in some jurisdictions, payable based upon a percentage of the pre-injury wages of the injured employee.
Temporary partial and temporary total benefits are by no means an exhaustive list of the types of benefits that employees may be entitled to, and they may not be available in every jurisdiction or may not be payable for the type of disability sustained. They are described here merely as an example of the type of wage benefits that are available and how a return to work may affect the ability to obtain those benefits.
Remember, if there is any change in an employee's work status while he or she is receiving workers' compensation benefits, the employer or the insurer should be notified immediately, as well as the employee's attorney. Failure to do so may have adverse effects on the employee's right to receive benefits.
Unless they fall within limited, exempt categories, employers without workers' compensation insurance are subject to fines, criminal prosecution, and civil liability.
Penalties
Failure to provide workers' compensation insurance coverage can result in:
Duties
In addition to providing workers' compensation coverage, in most states, employers must perform some, if not all, of the following duties:
Employer's Duty Not to Retaliate
Although workers' compensation laws provide remedies to injured employees, they also protect employers, as they are designed to be the only remedy that injured employees may seek from their employers. Even so, employers often appear to frown on employees who file workers' compensation benefit claims, and some blatantly discriminate against such employees. To protect employees from employers who discriminate against, harass, or unjustly terminate injured employees, many states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers' compensation laws, and allow employees to bring civil actions against their employers for the tort of "retaliatory discharge."
If an employee believes he or she has been discriminated against or discharged in retaliation for exercising rights under workers' compensation laws, he or she may have a claim against his or her employer for retaliatory discharge. In a retaliatory discharge suit, the employee must convince a judge or jury that it was more likely than not that he/she was wrongfully terminated. However, the employee does not have to prove that the workers' compensation claim is the sole reason for the discharge. The test is usually whether the employer's action is rooted substantially or significantly in the employee's exercise of rights under workers' compensation laws.
Besides termination, retaliation may take the form of more subtle types of discriminatory treatment, such as demotion or salary reduction. Injured employees are protected from discriminatory conduct immediately after an injury and before a formal workers' compensation claim is filed. An employee's cause of action may be successful even though all the employee did was give notice to the employer of a claim.
Workers' compensation laws allow workers who are injured in the course of their employment to be compensated for their injuries without having to resort to a traditional lawsuit, or court proceedings. An injured worker does not have to prove that his or her employer was negligent, or at fault for the injury, only that the injury happened in the course of the worker's employment. Unless someone other than your employer was liable for your injuries, workers' compensation is your sole remedy for your injuries.
Almost any kind of physical injury or disease is covered by workers' compensation. An injury or condition you already had will not qualify, unless it was aggravated or made worse on the job.
The workers' compensation law provides for specific amounts that are awarded for different injuries. In addition, the law authorizes payment of the medical bills that relate to your injury, as well as payments to make up, at least in part, for the wages you lose because of your injury. In some cases, you may be able to receive money to help you train for a new job.
Your employer is required either to carry workers' compensation insurance, or to be self-insured. Your employer's insurer is the one responsible for making payments to you.
Your first step should be to report your injury to your employer as soon as possible after your injury. You should be told who receives your report: your supervisor, your foreperson, or your employer's human resource office. Usually, a verbal report is all you need to make, and the report does not have to be followed up in writing (but you should check with your employer to be sure).
If you are in need of medical care or treatment, you should inform your employer of this need as soon as you decide you need to see a doctor.
Usually, your employer, or your employer's workers' compensation insurer, selects the doctor you will see. If you are unhappy with the doctor or other health care professionals selected, you may have the right to request treatment from someone else.
Most states do not tax workers' compensation benefits. The U.S. government does not tax workers' compensation benefits.
The workers' compensation laws provide an opportunity for a hearing if you and your employer, or your employer's insurer, can't resolve a dispute. While it is not required, it is a good idea to be represented by an attorney at this hearing.
You still have the right to receive workers' compensation benefits. In addition, you may be able to bring a separate lawsuit against the party who caused your injuries. It is important to consult with an attorney with experience in this area of the law, to learn exactly what your rights are in this situation.
EXPERIENCE ASSESSING CLAIMS. Personal injury attorneys are experienced with cases like yours and can tell you at the outset whether it is worth your while to pursue legal action. If you are unlikely to prevail, you will not need to incur the time and expense of preparing for litigation.
NO FEES IF YOU DON'T RECOVER. Most personal injury attorneys work for a contingency fee, which means that if you do not win your case, you will pay no attorneys' fees. You will, however, be responsible for certain expenses not directly related to professional fees, such as the fees doctors charge for reviewing your records or being interviewed.
RED TAPE. An experienced attorney can work through the maze of paperwork necessary to resolve your claim so that you can get on with your life.
INVESTIGATIVE TEAM. Experienced attorneys work with a team of investigators who have experience in specialized areas, and will skillfully investigate the technical aspects of your case.
OBJECTIVITY. A personal injury attorney can be more objective about your case than you can, and will not make any rash decisions in handling your claim. For instance, whereas you may be tempted to go for a quick payout through early settlement, your attorney may counsel you that it is in your best interests to wait for a more appropriate offer.
ALTERNATIVE DISPUTE RESOLUTION. An experienced attorney will know whether your dispute may be best resolved through mediation, thereby saving you time, money, and emotional energy.
EXPERIENCE WORKING WITH OTHER LAWYERS. An experienced personal injury lawyer can deal most effectively and expediently with opposing counsel.
EXPERIENCE WITH INSURANCE COMPANIES. Lawyers are also accustomed to working with insurance companies and will not be confused by their tactics, or feel pressured to settle for an unsatisfactory amount.
FAVORABLE SETTLEMENTS. Personal injury attorneys work hard to reach the best settlements for their clients, as early in the litigation process as possible.
BEST JURY VERDICTS. If a trial becomes necessary, a personal injury lawyer can zealously represent you in court and work toward achieving the best possible jury verdict in your favor.