Filing a workers compensation claim


1) What happens if I get hurt on the job?

You will receive replacement income for medical expenses and lost wages for your accident or illness on the job through the your state's workers' compensation system. Most illness or injury that is connected with your workplace is covered. Regardless of the seriousness of the accident or injury, you do not have to establish fault or negligence in order to collect. The cost of the program is carried by your employer.

After your occupational injury or illness occurs, you must inform your employer immediately. The employer will give you a claim form to complete and will submit it to the insurance carrier and to your state workers' compensation agency. The claim form must be filed within a specified period of time (limits vary by state) or you lose your right to benefits. You will be notified of how much you receive, but typically it will be one-half to two-thirds of your normal compensation while unavailable to work plus all your medical, hospital, surgical, and rehabilitation costs.

If your employer disputes the claim, an arbitration hearing is scheduled with the workers' compensation board. Conversely, if you are unhappy, you can appeal to the workers' compensation board. (If you are leaning toward appealing a denied claim, consult with a lawyer to assist you. The laws in each state vary as to who is insured, the percentage of compensation, the number of days to qualify, waiting period, procedures for filing claims, and for how long benefits will be paid, etc.)

If you or your employer do not like the decision of the compensation board, either side can appeal to the next level, depending on the appeal procedure established in the state. This avenue may be to a workers' compensation review board or to the appellate court.

Generally speaking, if you are receiving worker's compensation, you cannot file a separate civil lawsuit against your employer or co-worker. The reason is that workers' compensation is the exclusive remedy for an employee to obtain replacement income for work-related injuries and illness without going to the courts. You can, however, go to court, for example, if the injury was caused by a third party who is not the employer or coworker.


2) I injured myself from a slip and fall on the job. Can I file a workers comp claim against my employer?

Most work related injuries are handled through the workers compensation system of your state, and you are probably precluded from suing your employer. However, if a third party - such as a bottled water company making a delivery - was responsible for the condition that caused you to slip, you may have a claim against that company. Again, you may want to speak with a slip and fall attorney to discuss your rights, given the facts of your situation.


3) 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.


4) 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.


5) 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.


6) My employer and the insurance company have denied my claim for workers' compensation. What should I do?

If you are being treated for a work-related injury and off from work according to your doctor's instructions, yet you are not receiving workers’ comp benefits, then you have the right to a hearing before a workers’ compensation judge. Considering the complexity of most workers’ compensation systems and the fact that an experienced attorney will be defending the claim on behalf of your employer’s insurance company, it is a good idea to talk to an experienced and competent workers' compensation attorney as soon as your benefits are denied.

Most workers’ compensation attorneys will offer a free initial consultation to discuss your claim and help you decide how to proceed.


7) What if I cannot do my job because of restrictions a doctor put on me after I was hurt at work?

Most workers’ compensation statutes only prohibit the termination of an employee in retaliation for filing or attempting to file a workers compensation claim or for testifying at a workers’ compensation hearing. You must be able to perform the main duties of your position for your employer to be obligated to provide work for you that falls within your restrictions due to a work-related injury.

That said, if you can’t work at all and are still receiving workers’ compensation benefits, your employer will not be likely to fire you without knowing that you have reached what is called “maximum medical improvement.” If you have reached maximum medical improvement (or M.M.I.) and cannot go back to your previous duties, then you might be subject to termination. However, if you can perform the essential duties of your job with accommodation, and your employer fires you because of your disabling condition, you may have recourse to claim a violation of the Americans with Disabilities Act (ADA).
br>If you are fired, your workers’ compensation benefits should not be affected by your termination. If you are unable to do your previous job, you should be eligible to receive vocational benefits, including retraining for a different type of job. Your workers’ comp benefits should continue until you are able to go back to work at a job with pay that is substantially similar to your previous wage.


8) Can my employer fire me when I am receiving workers' compensation benefits and am unable to work because of my work-related injury?

Most workers’ compensation statutes only prohibit the termination of an employee in retaliation for filing or attempting to file a workers compensation claim or for testifying at a workers’ compensation hearing. You must be able to perform the main duties of your position for your employer to be obligated to provide work for you that falls within your restrictions due to a work-related injury.

That said, if you can’t work at all and are still receiving workers’ compensation benefits, your employer will not be likely to fire you without knowing that you have reached what is called “maximum medical improvement.” If you have reached maximum medical improvement (or M.M.I.) and cannot go back to your previous duties, then you might be subject to termination. However, if you can perform the essential duties of your job with accommodation, and your employer fires you because of your disabling condition, you may have recourse to claim a violation of the Americans with Disabilities Act (ADA).
br>If you are fired, your workers’ compensation benefits should not be affected by your termination. If you are unable to do your previous job, you should be eligible to receive vocational benefits, including retraining for a different type of job. Your workers’ comp benefits should continue until you are able to go back to work at a job with pay that is substantially similar to your previous wage.