Answers to Some Common Questions about Workers’ Compensation
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Rules and Procedures
Another Party at Fault
17. If I am injured by some means other than a motor vehicle collision (such as a defective product, a truck stop’s neglect, a shipper’s neglect, etc.), can I receive both Workers’ Compensation benefits and damages from the other party?
Hiring a Lawyer
A person is entitled to Workers’ Compensation benefits when injured on the job or when an illness develops as a result of the job.
An accident or unexpected occurrence causing an injury is the most common reason for the payment of Workers’ Compensation benefits. Diseases such as asthma, blood clots, skin conditions, etc., which result from hazardous working conditions are also commonly covered by Workers’ Compensation.
A more detailed discussion of the background and theory of Workers’ Compensation can be found on the links page.
Yes, most states allow for such type of recovery. Carpal tunnel syndrome and tennis elbow are some of the more common examples of a repetitive use or overuse injury. Knee, leg and hip injuries resulting from repetitive use or overuse may also be payable under Workers’ Compensation. Back injuries as well may be covered. There are also some diseases that are associated with repetitive use of the legs and feet that can be found compensable occupational illnesses. As true with other aspects of Workers’ Compensation law, the coverage rules vary greatly from state to state and a careful study must be made to determine which state laws provide the best benefits for any particular case.
Yes, most states allow for recovery in the event of such unfortunate occurrences. The rules or requirements for recovering these benefits vary from state to state and a careful review of jurisdictions involved must be done. In many states, a heart attack or stroke is the most difficult claim to prove. If your case is covered by multiple jurisdictions, it is beneficial to select a jurisdiction with a lesser burden of proof. (See question #13)
Yes, you may be able to recover for such conditions. However, there is a wide variance in the types of mental conditions that are covered by the Workers’ Compensation Acts. Some states allow for recovery for all stress/mental type conditions. Other states require some sort of physical injury to be involved before stress can be compensated.
These are the steps you should take if you have a work injury or work-related illness:
A. Contact your employer and report the injury or illness. Use a company form, if one is provided. If a company form is not provided, write down the fact the you reported the injury or illness to your employer, along with the date and time of the report and the name of the person you reported it to. If possible, keep a copy of whatever document you used to report the injury or illness.
B. Get appropriate medical care and while doing so, be sure to give the doctor or other care provider a complete and accurate description of the accident that caused the injury or the work activities or conditions you believe caused your work illness.
C. Take down the names and addresses of any and all witnesses to either the accident that caused your injury or the work conditions or activities that caused your illness.
D. Make copies of any and all work restrictions that your doctor gives you. Keep a copy and give the original to your employers.
E. Keep track of all time off work.
F. Do not sign any documents unless you fully understand the documents. If there is any doubt in your mind about what the documents mean, you should contact an experienced, qualified Workers’ Compensation lawyer.
G. If you have not received Workers’ Compensation benefits or notice that you will be receiving Workers’ Compensation benefits within a reasonable time period (usually 30 days), you should contact a competent, qualified Workers’ Compensation lawyer.
This is a difficult question to answer because the state laws vary greatly on this question. Until a few years ago, most states allowed for injured workers to pick their own doctors to treat them for Workers’ Compensation injuries; however, insurance revision of the Workers’ Compensation laws in the 1980s and 1990s took away physician choice in many states. This is an important issue that you should look into very quickly after you are injured to determine what your rights are in the various states that may have jurisdiction over your case. Obviously, we would all prefer to have control of our medical care.
Workers’ Compensation generally pays four types of benefits:
1. The first category of benefit is medical care for the injury or disease. In some states, this can be a lifetime benefit, even if a settlement is made on other types of benefits.
2. The second type of benefit is temporary income placement. This benefit is often referred to as temporary total or temporary partial disability. This benefit is ordinarily paid until the worker has either returned to work or a determination is made that the maximum healing has occurred.
3. The third category of benefit is permanent disability. This can be total disability, which in some states allows for payment of benefits for the worker’s lifetime. It can also be partial disability which results in payments for a set or fixed number of weeks.
4. The fourth general category of benefit is vocational rehabilitation. This can be anything from help in finding another job to years of formal education.
Many states have benefits for retraining. The amount of benefits payable during retraining and the length of retraining programs vary from state to state. Some states do allow for very extensive vocational rehabilitation.
In the event a person is unable to return to any work, there are a variety of benefits available. Total permanent disability is a lifetime benefit under many state laws. That means a worker would receive his maximum Workers’ Compensation benefit for his/her entire lifetime. Some states limit the benefits to retirement age and other states establish a fixed limit for payment of benefits, such as 750 or 1,000 weeks.
In addition to the Workers’ Compensation benefits, a worker could also receive Social Security and private disability benefits.
Yes, you can. In fact, an injured worker can change companies or change professions and still receive the Workers’ Compensation benefits he/she is entitled to due to a work-related injury. In certain instances, the amount of compensation you are receiving will be affected by the continued employment; however, in other types of cases, continuation of employment will have no effect on your Workers’ Compensation benefits.
Yes, you can, although there are formulas which provide for the coordination of these benefits. In other words, you may not be able to receive both maximum Social Security benefits and maximum Workers’ Compensation benefits. The formulas for offsetting these benefits vary from state to state.
Yes, you can. However, there are rules governing coordination of these benefits as well. Ordinarily, an injured person will not be able to recover their maximum private disability benefits and their maximum Workers’ Compensation benefits at the same time. Insurance policies have set-off provisions that deal with reducing your private benefits by subtracting the amount of Workers’ Compensation received, and some state laws have rules that reduce your Workers’ Compensation benefits by the amount of private disability benefits you are receiving. It is important to note that Workers’ Compensation benefits are not taxable, but private disability benefits ordinarily are.
A variety of laws may be involved in a particular Workers’ Compensation claim. Generally, a worker can make a claim for Workers’ Compensation benefits in the state where he was injured, the state where he was hired, the state where he resides, and the state where the employer is located.
No, they do not. The benefit levels may vary quite a lot. Furthermore, the overall value of a claim cannot be projected by merely selecting the state that pays the highest weekly benefits. A careful review of the entire case and its long-term consequences is very often necessary in order to determine which state would actually provide the greatest total compensation for the injured person. A summary of the various state benefits can be found at Employment Standards Administration Office site (Workers’ Compensation Programs Division of Federal Employees’ Compensation).
In some instances, this is possible. Multiple jurisdiction claims are one way that a worker can be sure that he/she receives all he is entitled to for the injury or injuries.
Generally speaking, the answer is yes; although there are some state variations on this issue. An injured trucker can usually recover from the driver at fault; however, the Workers’ Compensation insurance company or the employer would have a right of subrogation against that recovery. The right of subrogation means that whatever amount of money is paid in Workers’ Compensation becomes, in effect, a lien against the recovery from the driver at fault. The rules for subrogation also vary from state to state.
17. If I am injured by some means other than a motor vehicle collision (such as a defective product, neglect, etc.), can I receive both Workers’ Compensation benefits and damages from the other party?
Once again, the answer is generally speaking, yes. There are variations from state to state; however, an injured worker can recover from any third party who is at fault for his injuries. Common third-party actions would be against places with defective and dangerous conditions that have caused falls, or led to assaults, etc. .
Negligence or product liability suits have fewer fixed limits on the amounts of damages that can be paid. In many states, punitive damages are allowed for such types of cases while punitive damages are never allowed in Workers’ Compensation claims. In virtually all states, pain and suffering is awarded for negligence but is never allowed in Workers’ Compensation claims. Ordinarily, a negligence claim is worth significantly more than a Workers’ Compensation claim, although you should be aware that third party claims require proof of fault on the other party. Proving fault can very often be both difficult and expensive. Furthermore, third party claims are ordinarily decided through the jury system, which is somewhat slower than the various Workers’ Compensation systems.
Yes, you may be able to properly represent yourself in certain instances. However, there is a long-standing rule of law which states “ignorance of the law is no excuse.” Obviously, most injured people have not studied Workers’ Compensation law and are therefore at a definite disadvantage in dealing with a knowledgeable adversary from the insurance company or employer. Some cases in which injured workers may in fact be able to represent themselves properly are rather minor injuries where there is little or no loss of time and the nature and extent of disability is easy to determine. The loss of a partial finger or toe is an example of a claim where self-representation is often effective.
You should determine whether or not the lawyer has a significant professional commitment to representing injured people. This can be determined by checking out memberships and professional associations. The leading professional association for representatives of injured people is the Association of Trial Lawyers of America. You should also determine whether or not the attorney belongs to or is active in any Workers’ Compensation organizations, either locally or on a national basis. Lawyers’ backgrounds may be studied in a variety of ways. There are a couple of lawyer locator services on the Internet which list professional affiliations and accomplishments. They are Martindale-Hubbell and West.
There are several other good sources of information. Co-workers who have had good experiences with lawyers in similar circumstances are great references. Union officials are often aware of good local or regional attorneys.
State and local bar associations usually have referral services as well. You should also be aware that lawyer advertisements such as TV, radio, yellow pages and even cyberspace don’t mean the lawyer is competent or qualified.
Most Workers’ Compensation lawyers provide services on a contingent fee basis. A contingent fee is a contract in which the worker does not pay the attorney unless a recovery is made, and then in the event of a recovery, an agreed upon portion or percentage of recovery is paid as the attorney’s fee. Some states regulate the percentages that can be charged but others do not. Ordinarily, costs are charged in addition to the fee, although some states have regulations in this area and require that the employer pay all costs. Several states have specific allowances for attorney’s fees and do not allow contingent fees. Any lawyer you may be referred to by this service will be familiar with the state rules and regulations and can explain your rights and options.
Final settlement or resolution of a case is dependent upon when the injured person reaches maximum medical healing. A final determination of what type of permanent disability the person has and whether or not retraining is available cannot be made until a doctor releases a person from care. With serious injuries, the recuperation period is very often a year or more. With lesser injuries, the recuperation period runs from three to six months.
Once maximum healing has been obtained, resolution or settlement can be reached fairly quickly through negotiations if all parties involved are reasonable. If negotiations are unsuccessful and some sort of legal proceeding is required, it often takes about a year from the date legal proceedings are instituted to complete a case. The time involved to resolve the legal proceedings obviously varies from state to state, and is something an injured worker would need to make specific inquiry about.