General Workers Comp Questions


1) What is workers' compensation?

Each state has its own worker's compensation laws to handle claims from employees who are injured on the job. These laws are strict liability - fault and negligence by the employer need not be established in order to collect benefits. However, the injury or illness has to be incurred in the course of employment in order for the workers' compensation system to provide benefits to the injured worker. Since workers' compensation law imposes strict liability on employers, it is the exclusive remedy for an employee's injuries or illnesses arising out of the course of employment.

Workers' compensation insurance is typically required by the state for every employee - although state law may provide for specific exemptions for officers/owners, small companies (those with three/four/five or fewer employees), domestic workers, farm hands, and independent contractors.


2) What type of occupational exposures are covered by workers compensation?

Workers' Compensation systems provide benefits to those workers who suffer immediate and long term effects of occupational exposures. The exposure may have occurred recently or have occurred many years previously. Individuals are able to seek benefits for occupational exposure to toxic substances at work including asbestos, lead, latex and many other chemicals. Employees may seek benefits for: repetitive stress disorders, i.e.. carpal tunnel syndrome; occupational exposure to loud noise, i.e.. binaural hearing loss; cardiovascular disorders, i.e.. myocardial infarctions, and hostile work environments, i.e.. psychiatric and possible physical disorders.


3) What benefits are typically available under workers' compensation?

There are three major components to workers' compensation:

(1) Medical Expense - the cost for hospitals, doctors, medical treatment, etc.

(2) Disability Pay - either temporary while you are getting back to normal, or permanent if you will never fully recover. The amount varies, but can be as high as one-half to two-thirds of your normal pay.

(3) Vocational Rehabilitation - if your injury renders you unable to perform the usual duties of your occupation, you may need re-training so that you can enter into a new trade or business. Also, you may need physical therapy to get your normal strength back.

Since workers' compensation imposes strict liability without inquiry into fault, an employer could be penalized where its conduct was egregious - violation of federal or state safety standards, failure to correct known defects or other conduct - situations where there is a need to punish and deter such conduct in the future.


4) What if i'm exempt - do I need to be concerned about workers' comp?

Even if you are covered by one of the exemptions, you should consider having workers' compensation insurance anyway. It typically is very affordable coverage that could really save you a bundle if someone got injured while working for you. Not only is workers' compensation coverage the right thing to do, it can protect you and your business from a devastating claim in its absence.

You'll also need other general liability insurance for your business. It's not always your employee who poses potential liability. If an employee of an independent contractor you hired to work on your house gets injured, you hope the independent contractor has coverage for the employee because if there is no coverage, its injured employee may begin looking for other sources of compensation and you will be in his/her direct line of sight.


5) What kinds of injuries or illnesses might be compensated by workers' compensation?

Injuries or illnesses are typically covered only when they "arise out of and in the course of employment." There needs to be a nexus between the accident that caused the injury/illness and the scope of your employment duties. Examples of compensable injuries are those caused by lifting heavy equipment, slipping on a wet or oily surface, defective machinery, or fires or explosions. Many state workers' compensation programs preclude coverage for injuries which occur while you are not acting within the scope of your employment - such as while you are playing football with friends on your day off. But closer examination of the situation should be made - if you were injured while playing football at a company sponsored picnic, there may be coverage.

Illnesses which "arise out of and in the course of employment" can be covered under the workers' compensation system where the working conditions present unusual or extraordinary risks of contracting an illness - such as coal miners being able to recover for black lung disease or computer workers for carpal tunnel syndrome. Careful inquiry into the hazards arising out of the scope of your employment can determine whether the illness is one that is common to everyday life as opposed to risks of illness that are present in your particular employment situation.


6) Can an injured worker obtain both workers' compensation benefits and social security disability benefits (ssdib) at the same time?

Yes. An injured worker may receive both State workers' compensation benefits and Federal Social Security benefits simultaneously. The are limits to the amount that one may recover and in most jurisdictions the limit is a percentage of the individual's Average Current Earnings (ACE) as computed by the Federal Social Security program Some States have a reverse offset by statute which allows the employer's workers' compensation insurance carrier to take a credit. There are approximately 14 jurisdictions which have what is termed a reverse offset. In all other jurisdictions the offset is taken by the Federal Social Security system. There is no offset after the age of 62 in most jurisdictions.


7) What is the ‘coming and going’ rule?

Most state workers' compensation systems preclude coverage for injuries sustained while an employee is commuting to and from work (hence the name "coming and going"). There are many exceptions to this rule - such as where the scope of the employee's duties includes travel or where the employee was running an errand for the employer during his/her commute. Inquiry as to whether the "coming and going" rule applies to your particular situation should be made before simply ruling out the possibility of coverage for an accident which occurred during your commute to or from work.


8) Can a wife recover for loss of services in workers' compensation?

No. The benefits are paid to the worker for the worker's loss. Additionally, there are no punitive damage awards available under workers' compensation programs. Benefits in workers' compensation are limited and supposedly expeditiously paid. The legal defenses available in a civil action such as comparative negligence and assumption of the risk are not available to the employer in workers' compensation.


9) I have been injured in a work-related accident and I am receiving workers’ compensation benefits. When should I consult an attorney?

It is never too soon to consult an attorney after sustaining a work related injury, even if for no other reason that to have the workers’ compensation system explained to you, and what to expect from the process. There is a substantial likelihood that the insurance company will eventually challenge a worker’s right to compensation benefits, and the insurance company begins preparing a litigation strategy to get an injured worker off compensation from the time that the adjuster opens the file.

Not only is it critical for the injured worker to consult an attorney as soon as possible especially if the injury is serious, it is recommended that you get in touch with an attorney experienced in workers’ compensation law.


10) But I am worried that an attorney will just bill me for advice that I don’t need. How do I know that I won’t be cheated?

Most workers' compensation attorneys in Pennsylvania provide free initial consultations and will not charge a fee until the Employer/Insurance company has filed a petition to suspend, modify, and/or terminate your benefits. In addition, an attorney may not collect a contingency fee without first submitting the fee for approval before a workers' compensation judge.


11) What should I do if I am injured on the job?

After injury or illness occurs, it is the employees responsibility to complete a claim form and to submit it to either the employer or the state workers' compensation agency/board. Normally, an employer will have the claim forms available. The employer will submit the claim to the insurance company. The employer is given an opportunity to respond to the claim. If he does not contest the claim, payment of medical bills and wages will be made by the insurance company. A hearing can be scheduled if the employer contests the claim to determine whether, or how much, compensation is owed to the employee.


12) How does the law determine if I am an employee or an independent contractor?

Sometimes there is a question of whether a worker is an employee or an independent contractor. The courts will usually look to the relationship and determine whether the employer had the right to control how the employee performed the job. If that is unclear, the court may look to the nature of the relationship between the employee and the employer. If the employee is substantially economically dependent upon the employer then court may determine that an employee-employer relationship exists.


13) Can I pursue a lawsuit and claim workers' compensation?

Since a claim under the workers' compensation system provides the employee with a remedy for injury or illness arising out of the course of employment (strict liability - no need for the employee to prove fault or negligence of the employer), you are typically prohibited from bringing a separate lawsuit for negligence against the employer.

However, this does not preclude the bringing of a lawsuit against third parties who have culpability for the injury. For example, if you are injured at work but someone outside your company caused the accident to happen (i.e.- a wire cable installer negligently hid a wire that caused your trip and fall), you may sue the cable company.

In addition, if your employer did not carry workers' compensation coverage, you may be able to sue the employer based upon its negligence or fault for your injuries. Also, there are some harassment claims that may be brought as a State civil action or a Federal cause of action. This is becoming more common in sex harassment claims. An workers’ compensation attorney can help you pursue all available remedies.


14) If I get injured on my lunch hour, am I covered by workers' compensation insurance?

Usually, if an employee is injured at lunch it is considered outside the scope of the employment relationship.


15) I have just been injured at work, and need treatment. Can I see my own doctor, or do I have to go to my employer’s doctors?

Initially you see one of your employer's designed physicians. Your employer has a list. After 90 days, you may see your own.

The Workers' Compensation Act expressly provides that it is the duty of the employer "to provide a clearly written notification of the employee's rights and duties" regarding his/her rights to medical treatment. It is the employer's responsibility to "ensure that the employee has been informed and that he/she understands these rights and duties". The employer can only establish that it has met its responsibility by obtaining your signature on a Bureau form setting forth your responsibilities to treat with one of its panel physicians.

There is an exception to the 90-day rule. If your boss has not complied, your best step is to contact a workers’ compensation attorney about the possibility of seeing your own doctor within the 90-day period.


16) My workers’ compensation insurance claims adjuster has been very helpful, informative, and nice. I don’t need an attorney in this situation, do i?

You most certainly do need an workers’ compensation lawyer, regardless of how nice a person the insurance claims adjuster appears to be. The problem with taking the advice of an insurance adjuster is that the adjuster’s motivation for making decisions is to keep costs down and profits up. This goal is in direct conflict with the injured worker’s best interests, which is to obtain the best medical care and ongoing wage loss benefits for as long as the injured worker is unable to return to work. An insurance adjuster is trained to reduce the cost of the claim any way possible, even to the extent of violating the provisions of the Workers’ Compensation Act.

Although the Pennsylvania Workers’ Compensation Act provides for penalties for insurance company misconduct, those provisions do not seem to keep violations at a minimum.


17) Can I recover from my pain and suffering, loss of enjoyment of life's pleasures, and for emotional distress from my injury?

No. Under the Pennsylvania Workers' Compensation Act, the employee is precluded from suing the employer for pain, suffering, disability, or for causing an employee's injury. The only benefits that the injured worker can recover are wage loss benefits and medical expenses for the work-related injury only.


18) What do I do if I do not agree with what the doctor for the workers comp insurance company says?

Take notes right after the exam to help you remember details from the medical examination. If you receive a report from the doctor that you disagree with, make sure you let your lawyer know. If your notes show deficiencies in the exam (for instance, if the doctor did not spend much time examining you, did not ask you important questions or did not pay attention to certain symptoms), you have a better chance of showing that the insurance company’s doctor is not credible regarding the parts of the report that you disagree with.


19) Will I get compensation for pain and suffering in a worker's compensation claim?

There is generally no benefit available for pain and suffering, although you may be entitled to a lump sum for the percentage of any permanent disability that you may suffer. Often called “permanent partial disability,” this rating is given by a doctor according to your state’s disability formula. The actual dollar amount of the settlement will depend on several factors such as the doctor’s findings and your income at the time of the injury.

Each state has different rules for workers compensation , so it is best to find out which rules govern workers’ compensation in your state to determine the benefit calculations.


20) Will my employer’s workers’ comp insurance pay for treatment if I go to my own personal doctor?

In some states, you have a right to see your own doctor for work-related injuries if you make this request to your employer in writing before an injury occurs. In most states, however, as an injured worker, you must choose a doctor from a list provided by your employer or its insurance company. If you go to a doctor that is not on the list or authorized by your employer and its insurance company, you might be stuck with the responsibility for payment of the bills.


21) What kind of medical benefits does workers’ comp provide after a work-related injury?

An injured worker is entitled to receive 100% of necessary and reasonable medical expenses incurred as a result of a job-related injury. These include emergency room services, hospital care, physician's fees and prescriptions. The treating hospital is authorized by your employer or the insurance company to provide the necessary medical care, treatment and prescriptions related to the injury.


22) If my injury is permanent, am I entitled to a workers’ comp settlement?

You are entitled settle all or part of your workers’ compensation claim, but you probably want to be very careful to leave medical benefits open for future treatment. Settlements are voluntary and will be reviewed by a compensation judge to make sure they seem fair. If you are offered or are interested in a settlement of your claim, it is best to contact an experienced workers’ compensation attorney to make sure your rights are protected.


23) Does workers' comp insurance cover long-term illnesses and diseases?

Your injury does not have to be caused by an accident to be covered by workers’ compensation . As an employee, you can receive compensation for repetitive stress injuries, including carpal tunnel syndrome and back pain that are caused by overuse or misuse over a long period of time. A worker who has sustained a documented repetitive motion injury is entitled to workers’ compensation benefits according to the benefit schedules in their state’s workers’ comp statutes.

You may also be compensated for some illnesses and diseases that are the gradual result of work conditions, including heart conditions, lung disease and stress-related digestive problems.


23) Can I sue my employer or a co-employee for careless and reckless behavior that caused me to incur a severe injury?

No. The employer is granted immunity from negligence claims by its employers. The good news is that the employee can recover wage loss and medical benefits even if the worker himself carelessly or recklessly causes his own injury and disability. It is a-give-and-take situation designed to ensure that as few people as possible are without any means to provide for themselves and their families, even the careless.


24) Can I have my claim re-evaluated after a settlement?

Maybe. Whether or not you can get additional benefits depends on whether, at the time of settlement, you "closed out" your claim completely. If you left open your future medical care benefits, at least you should be able to get the treatment you need.

If you closed out the claim completely, you probably will not be able to re-open it. In some states, however, you can re-open your claim within a certain number of years from the date of the original injury. To do this you will have to file additional documents with the workers’ compensation court. You would then be re-evaluated by doctors and, if your level of permanent disability has increased since the date of your settlement, you may receive additional compensation and medical treatment.

If your condition has become worse due to employment at a different job than the one you were doing when you were originally injured, you may be able to pursue a new claim against your new employer. For example, if you hurt your back lifting a crate at your last job and your back injury has become worse because of something that happened at your current job, you can file a workers’ compensation claim against your current employer.

In many cases, though, a complete settlement of your claim will prevent you from receiving additional benefits. That is why it is best to make certain that you know what you are giving up in exchange for a settlement of your claim.


25) Are on-the-job injuries covered by workers' compensation even if I was at fault?

Most on-the-job injuries are covered, regardless of fault. The workers’ compensation system is designed to provide benefits to injured workers, even if an injury is caused by the employer's carelessness or the employee's own carelessness (if the employee tripped because of clumsiness or was not paying attention while operating heavy equipment, for example). Mere carelessness or even recklessness is rarely enough to take the claim out of the realm of workers’ comp.

The tradeoff for receiving these guaranteed benefits is that the employee cannot sue the employer for negligence. Workers’ compensation hearings, if necessary, are normally administrative proceedings that take place in a separate court system. However, there are some limits to workers’ compensation being an “exclusive remedy.”

Coverage may be denied in situations involving self-inflicted injuries, injuries suffered while an employee is committing a crime or injuries suffered when an employee's conduct violated company policy, like a policy against drug use or drinking on the job.


26) Can I sue my co-worker if his or her behavior contributed to my injury in a workers' compensation case?

If a co-worker acted intentionally and violated company policy (i.e., anti-drug or alcohol use on the job), started a fight or committed a crime, you might be able to sue a co-worker (click third partylawsuit for more information).


27) Do I have to file a workers' compensation claim within a specific period of time?

For all workers’ comp claims, including those that develop over time, you should report an injury or illness as soon as possible after discovery to avoid your claim being denied. The time you have to report a claim varies by state, but it is probably 30 days or less.

Depending on the state, the time will start running from the date of the accident, the date of the last medical treatment or the date of the last payment of benefits. In latent disease cases, such as those involving lung cancer, mesothelioma or toxic exposure, the time may start running from the date of the last exposure, date of appearance of the disease or date of the disease was found on a test, such as a chest X-Ray, MRI or CT scan.


28) Can I get fired for filing a workers' compensation claim for a car accident that was not my fault that happened while I was making a delivery on my job?

It is against the law to fire you because you have filed or attempted to file a workers' compensation claim. If it can be proven that an employer fires or forces any injured worker to resign in retaliation for filing a workers' compensation claim, the worker could file a civil lawsuit against the employer for “retaliatory discharge.” This type of lawsuit could result in substantial damages against the employer, and employers usually know this.

If someone other than your employer or co-worker is responsible for the accident, you can bring a "third party" lawsuit for additional money damages. Workers comp and civil personal injury claims are not mutually exclusive, and since workers compensation does not compensate the injured worker for pain and suffering, you will likely get a more complete recovery by suing the at-fault driver. You will have two claims to make – your workers’ comp claim for medical expenses and lost wages, and a personal injury claim against the driver who caused the accident and your permanent injuries, if any, or other losses.

As with any non-work auto accident claim, most personal injury attorneys will take your auto accident case on a contingency basis, meaning that the attorney will recover an agreed-upon percentage of your verdict or settlement as payment, plus costs, instead of taking any money from you up front. Sometimes the same attorney can handle both your workers’ compensation claim and your third party claim. However, others will only handle one type of case.

There will generally be a lien imposed by the workers' compensation insurance company against any recovery you receive from the at-fault driver; this is also known as a “subrogation” claim. The lien provides for reimbursement to the workers' compensation insurance company of a percentage of the benefits that you recovered in your civil claim. Therefore, as an injured employee, you would not receive double benefits, and the workers' compensation insurance company can be reimbursed for past of what it had paid.


29) Do I have to be injured while actually working in order to qualify for workers compensation benefits?

Yes. As long as your injury is job-related, it's covered. For example, you'll be covered if you are injured while traveling on business, doing a work-related errand or even attending a required business-related social function (for instance, playing flag football at a company-sponsored picnic). In general, you will not be covered for injuries sustained while traveling to or from work, during your lunch break or while playing a basketball game with your work friends on your day off. To recover, you must be injured within the scope of the employment relationship.


30) Do I have to be examined by a doctor recommended by the workers’ comp insurance company to get my benefits?

Yes. If you claim that you are entitled to receive or are receiving benefits under the workers' compensation act in your state , the workers’ comp insurance company is entitled to have you examined by a doctor of its own choosing, at a reasonable time and place. This is known as an “Independent Medical Examination.”

This examination is done by a physician who receives substantial compensation for his/her evaluations and medical reports, and therefore might be inclined to favor the insurance company and not your best interests. The IME doctor is not your friend. It is a good idea to consult a lawyer before attending one of these required exams.

Make notes right after the exam about how long the exam took, what the doctor asked you, what the doctor told you to do, how the doctor examined you and whether or not any diagnostic tests were taken (if they were, what kind).


31) How does the worker's compensation system work?

The insurance company or your self-insuring employer will pay 100% of your “reasonable and necessary” medical bills plus disability benefits according to your state’s approved formula. Normally, workers compensation also provides replacement income in the form of income loss benefits, compensation for permanent disability and vocational rehabilitation benefits (job re-training, education or job placement help) in addition to medical expenses.

Income loss disability pay is generally available either temporarily, while you are recovering from your injury, or permanently if you are not able to recover from your injury in order to go back to work. The amount of an injured employee’s income loss pay will vary, but normally it is two-thirds of your regular income. If you are only able to work part time, your wage loss benefits will be adjusted accordingly. Since these payments are tax-free, you should have a very similar income to your pre-injury income in most states.

If you become permanently unable to do the work you were doing prior to your work-related injury, or if you are unable to work at all, you may be eligible to receive long-term benefits or a lump sum payment. The amount of the payment will depend on the nature and extent of your injuries. Even if you return to the same job after sustaining an on-the-job injury, you could be entitled to compensation for any complete or partial permanent loss of use of any part of your body (this compensation is usually called Permanent Partial Disability benefits, or P.P.D).

If you can’t perform the usual duties of your job because of your injury, you may need re-training so that you can go into a different type of job. Also, you may need physical therapy to get your normal strength back. Vocational rehabilitation benefits, if you qualify, allow you to prepare for a return to alternate work or get the physical therapy you need to return to your old job.