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Workers Compensation

Q. What is worker's compensation insurance?

A. Under state law, every employer who has a minimum number of employees must buy and provide to his employees worker's compensation insurance to pay medical and wage replacement benefits resulting from work-related injuries. The worker's compensation laws of each state are unique, although there are several common underlying themes.

Q. Who is entitled to worker's compensation benefits?

A. Any worker injured in the course and scope of covered employment is entitled to benefits under the law.

Q. What is covered employment?

A. Covered employment is employment by a company that has sufficient employees to be required by state statutes to have worker's compensation insurance in a group. State law generally requires a minimum of 3 employees before worker's compensation coverage becomes mandatory. Certain types of workers are not covered in most states; these include agricultural workers, domestic employees, casual employees (employees who do not regularly work in the employment), professional athletes, and independent contractors.

Q. What benefits are available to injured workers under worker's compensation?

A. There are two primary types of worker's compensation benefits: (1) medical benefits, and (2) wage replacement benefits. Medical benefits include all medical services, including drugs, therapy, psychiatric care, rehabilitation, nursing services, home health aides and the like that are necessary to treat the work injury. Ordinarily, care must be rendered by a physician who is approved by the worker's compensation insurance company. Wage replacement benefits are paid during the time the employee is unable to work; in some states, benefits are payable after the employee returns to work if he has sustained a permanent injury or a reduction in earning capacity. The wage replacement benefit is one-half to two-thirds of the employee's regular wage, depending on state law. In some states, benefits may be terminated after a certain number of months or years even if the employee has not fully recovered from his injury. Ordinarily, if an employee is permanently and totally disabled from gainful employment, he/she will be entitled to lifetime wage replacement benefits with periodic cost-of-living increases. Many states have schedules of payments for different types of injuries and disabilities; the schedules may provide for payments in lump sum or over a period of time.

Q. How does an injured worker obtain benefits?

A. Worker's compensation is intended to be self-executing; that is, no application is filed when the injury occurs to initiate benefits. The worker must notify his employer of the injury; the employer is required by law to advise the compensation carrier (insurance company) of the accident. The compensation carrier must provide the employee with the names of authorized physicians so that treatment can begin. Emergency care is covered even without specific authorization. After a waiting period specified by state law, wage replacement benefits should also begin.

Q. Is an employee entitled to worker's compensation benefits if the injury resulted from his own negligence or carelessness?

A. Benefits are payable for work injuries irrespective of whether the employee, employer or fellow employee caused the injury.

Q. Can an employee sue his employer for causing his injury?

A. An employer generally cannot be sued by the worker for injuries resulting from the employer's negligence. By the same token, there is no reduction in compensation benefits if the employee's own negligence caused his own injury. The only exception to this rule arises if the employer intentionally injures the employee, and in some states, where the employer was grossly negligent.

Q. What happens if an employer fails to purchase required worker's compensation insurance?

A. Generally, the employee will be entitled to sue the employer for worker's compensation benefits in worker's compensation court, or he/she can elect to file an ordinary lawsuit in state court; the employer will not be allowed to defend the case on the grounds that the employee was negligent.

Q. What can an employee do if the worker's compensation insurance company denies the claim or fails to pay benefits?

A. Worker's compensation disputes are heard in a special court system by judges who hear only compensation matters. This area of law is very specialized and an attorney with compensation experience should be retained. The attorney will file a claim for benefits, take depositions and set the case for hearing. In many states, the court will award attorney's fees to the injured worker's attorney if the claim is successful; it is therefore likely that qualified legal help can be obtained at no cost to the claimant (injured worker).

Q. How user friendly is the compensation system?

A. For the average family, a few weeks of salary means the difference between prosperity and bankruptcy. It may take a year or more to bring a compensation claim to final hearing. During the intervening period, the claimant may have no income and be denied medical care. Winning the case may be a hollow victory when the claimant has lost his home, car and pride.

Q. Can a claimant collect compensation and social security benefits if he/she is totally disabled?

A. There is a mandatory offset between social security disability benefits and worker's compensation benefits. Depending on the state you live in, either the social security benefits will be reduced because of the compensation payments or the compensation will be reduced because of the social security.

Q. Can a claimant settle his case for a lump sum?

A. In most states, the law does not encourage lump sum settlements; in some states such settlements are not permitted. Where allowed, the court must approve the settlement and determine that the settlement is in the best interests of the claimant.



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