I quit my job about a month ago. About a week before I resigned, I hurt my back when I was bending over to pick up some heavy equipment. At the time, I didn’t think it was a big deal so I didn’t file a report. But in the last few weeks my back has been killing me. Can I still file a workers’ comp claim? Or am I no longer eligible?
Assuming that you’re otherwise eligible for workers’ comp benefits, the fact that you quit your job isn’t necessarily a barrier to receiving benefits for an injury that happened while you were still working.
However, insurance companies are usually suspicious of claims that are filed only after a worker quits or is fired. They may view these claims as an attempt to collect a weekly paycheck (since people who voluntarily quit aren’t usually eligible for unemployment benefits) or get revenge for being fired.
In order to support your claim, you’ll need some proof that your injury happened at work before you quit. This may be a statement from a coworker or someone else who witnessed the accident, video footage from work surveillance cameras, or medical records if you sought treatment right after the injury.
If your accident happened while you were alone and you didn’t tell anyone or seek medical treatment, you may have a very difficult time recovering benefits.
Unfortunately, there may be another barrier to your claim in this situation. In most states, there are time limits for reporting your injury to your employer.
Those time limits vary considerably from state to state, but they’re often about 30 days. If you fail to notify your employer within this timeframe, you may lose your right to receive workers’ comp benefits.
However, the notice doesn’t necessarily have to be a formal report. For example, if you told your boss about the incident or a coworker witnessed it and told a manager, that will generally count as notice.
Even if you’re outside of the time limits in your state, that’s something you should leave to the insurance company to notice and use as grounds for denying your claim. And there are always exceptions that might be apply in your case. For example, in some states, if you can prove that your delay in reporting the injury didn’t harm your employer in any way, you can move forward with your claim.
Because these rules can get complicated, it’s best to notify your employer right away, file a workers' comp claim, and consult with a workers’ compensation lawyer if your claim is denied.
An attorney who’s experienced in this area can explain how the law in your state applies to your situation, whether you qualify for any exceptions, and how you might prove that the injury happened while you were still at your job.
And if the insurance company (or even the workers’ comp hearing officer) denies your claim based on an improper interpretation of the law, a good workers’ comp attorney can challenge that.
For example, when a California truck driver quit his job a month after being injured in an on-the-job accident, his claim was denied because he hadn’t met the special requirements in state law (Cal. Labor Code § 3600(a)(10)) for workers’ comp claims filed after the employee has received notice of a being fired or laid off (including a voluntary layoff).
After he appealed, the Workers’ Compensation Appeals Board ruled that the law didn’t apply to voluntary resignations, so his claim could go forward. (CJS Co. v. Workers’ Comp. Appeals Board, 74 Cal.App.4th 294 (Cal. Ct. App. 1999).)
]]>Each state's law (or U.S. law for employees in the federal workers’ comp program) sets the deadlines for filing claims, reporting the injury directly to your employer, and other matters related to your workers' comp case.
Those deadlines can be quite different from state to state (as discussed below). But the bottom line is, the sooner the better.
After you’ve been injured at work, or you discover you have a medical condition caused by workplace conditions, you should report the injury or illness to your employer right away. Make it clear that you were hurt on the job.
Some state laws simply say that you should give this notice immediately or as soon as practical, but most states give a more specific deadline, usually within 10 to 90 days. In many states, however, it won’t count against you if you didn’t make a written report, as long as your employer actually knew about the injury.
After you report your injury or illness, you’ll usually have to file a workers’ comp claim with the state workers’ comp agency (although your employer may take care of this step in some states).
The deadlines for filing claims are typically in the range of one to three years after the injury. But some states allow even more time. In Wisconsin, for example, the deadline is six years from the date of a sudden injury, but there’s no time limit for certain serious injuries like permanent brain damage (Wis. Stat. § 102.17(4) (2024)).
If you employer provided some medical benefits before you filed a claim, the time period for filing may not start until those benefits stop.
Many states include a few limited exceptions to the time limits for filing claims, including when the injured employee couldn’t file a claim right away because:
For benefits under the federal workers’ comp program (mostly for employees of the U.S. government), injured employees must file a claim within three years after the injury. However, compensation may still be allowed if the employee gave written notice of the injury (or the immediately supervisor knew about it) within 30 days. (5 U.S.C. § 8122 (2024).)
The time period of filing a workers’ comp claim may be stretched out considerably for occupational diseases (illnesses that result from workplace conditions) or cumulative trauma (injuries that develop over time from work activities, such as repetitive strain or stress injuries).
Often, state law requires that you report the claim within a certain period of time after the last “injurious exposure” (such as exposure to asbestos or to the coronavirus) or after you first learned that your condition could be related to your employment.
In California, for example, you must file a claim within one year after the date of injury. But in the case of an occupational disease or cumulative injury, the injury date is when you first experienced disability (often when you missed work or had to get medical treatment) and you knew or should’ve known it was caused by work. (Cal. Labor Code § 5412 (2024).)
Don't hesitate to file a claim even if your workplace injury seems mild or moderate at first. It could get worse later, as often happens with back conditions. If you file a claim and the condition improves on its own, the claim will simply close—no harm done.
But if you wait to file, you could lose the chance to get workers’ comp benefits after it gets worse and you realize that you need to miss work and get medical treatment.
If you had a previous workers’ comp claim that was closed, but your medical condition has gotten worse, you have a certain period of time (often three to five years) to request that your claim be reopened in order to start receiving benefits again.
There are also deadlines for submitting bills to your employer for coverage of medical treatment, so make sure your doctor knows you’re receiving treatment under a workers’ comp claim. Your doctor will then be able to correctly bill your employer or its workers’ compensation insurance carrier. (Know that most states have rules for seeking medical treatment and choosing a treating doctor in workers’ comp cases.)
A lawyer experienced in workers’ compensation in your area is your best resource for knowing the deadlines that apply to your situation. Your attorney will ensure that you meet all of the deadlines, so that bad timing alone won’t keep you from receiving the workers’ comp benefits you're entitled to receive.
If your employer has told you that you are too late to file a workers’ comp claim, you should consult with an attorney to learn whether this is true, and whether there are any exceptions to the deadlines or legal alternatives to pursuing workers’ comp benefits.
]]>That means you should have a good idea about the extent of any ongoing pain or limitations from your injury, as well as any need for further medical treatment.
But what if your condition unexpectedly gets worse, or you discover new evidence that shows you’re more disabled than your doctors previously said?
You might be able to get more benefits by reopening your case or asking for a modification, depending on the rules and deadlines in your state, as well as how you resolved your workers’ comp claim.
Just because you’ve had a final decision in your workers’ comp case (even after any appeals), that doesn’t necessarily means that you case is closed for good. For a certain period of time after a final award or order, workers’ compensation judges generally have the power to change a previous award for a good reason. The time periods and qualifying reasons vary from state to state.
Typically, you may reopen your case if you have medical evidence showing that your condition has gotten worse or that you’re more disabled than you were at the time of the award. For example:
Several states also allow you to reopen your workers’ comp case if there was a legal or factual mistake in the court’s order or award, or if the insurance company acted fraudulently.
If a judge ruled after a hearing that you weren’t entitled to any workers’ comp benefits, some states will allow you to reopen your case only for limited reasons.
Typically, you’ll need to show that there is new and compelling evidence that wasn’t available at the time of your previous hearing.
Once a judge has approved your settlement agreement, it could be especially difficult to reopen your case or get the court to set the agreement aside. Just how difficult will depend on the type of settlement you signed and where you live.
If you’ve agreed to a full and final settlement (also called a “compromise and release”), you received a lump sum of money in exchange for giving up or releasing your claims against your employer for the injury.
In this situation, you typically can’t reopen your claim, even if your condition has worsened. In some states, however, you can’t legally give up your right to future medical care in any workers’ comp settlement.
So if you live in one of those states, you may seek reimbursement for medical treatment that you need after you signed a lump-sum settlement. (For more information, see our page on navigating workers’ comp settlements by state.)
If you signed a settlement that provided payments over a period of time (often called a “structured settlement”), you might be able to reopen your case. But many states allow courts to set aside settlements only for limited reasons, such as when the agreement was based on fraud, deception, or certain kinds of mistakes.
States have different procedures for requesting that your workers’ comp case be reopened. Typically, you must file a form or letter with the state workers’ compensation agency and send a copy to your employer or its insurance company.
You should attach documents that support your claim (such as medical records showing your worsened condition) to your request. A hearing may also be scheduled to determine your eligibility for benefits.
You must file your request within a certain period of time, as set by state law. The deadlines vary considerably from state to state. For instance:
Even when you can’t reopen your workers’ comp case, you may be able to file a new claim if your old injury was aggravated or “lit up” by a work activity, whether at the same job or for a different employer.
For instance, say you settled a workers’ comp claim for a back injury related to a workplace accident; then, years later, the pain started up again or escalated after you lifted a heavy box at work.
In this situation, the aggravation or worsening of your medical condition would be considered a new injury. In order to be eligible for benefits, you must follow the rules in your state for reporting the new injury and filing a workers’ comp claim.
The rules for reopening a workers’ comp claim can be complex, difficult to understand, and different from state to state. If your medical condition has unexpectedly deteriorated after a judge ruled on your claim, or even after you signed a settlement agreement, you should consider speaking to a local workers’ comp lawyer.
An attorney who’s experienced in this field can explain how your state’s laws apply to your situation. If you had a lawyer’s help with your original case, that’s a good place to start.
]]>Workers’ compensation is a system created by state law to provide benefits to employees who sustain on-the-job injuries, while also protecting employers from the liability of employee lawsuits. Under the workers’ comp system, employees are entitled to lost income and medical expenses when they suffer a work-related injury or illness, regardless of who was at fault. In return for these benefits, employees give up the right to sue their employers in court for workplace injuries.
Workers’ comp laws can differ substantially from state to state, so it’s important to be familiar with the laws in your particular area. But there are many similarities among the states as far as who is eligible for workers’ comp, what injuries are covered, the types of benefits available, and the process for making a workers’ comp claim.
Benefit amounts vary from state to state, but it's fairly typical for states to provide two-thirds of your previous wages in benefits, subject to a weekly cap. In addition, workers' comp benefits can cover the cost of your medical care.
A number of factors determine exactly how much you'll receive in workers' comp, and for how long. They include:
As you'd expect, temporary injuries are typically worth less than permanent ones. Likewise, if your injuries have left you "totally disabled" (that is, completely unable to work), you'll receive more than if you're only "partially disabled" (still able to perform a less demanding job).
To be eligible for workers’ comp, you must meet your state’s deadlines for reporting your injury and filing a workers’ comp claim. In addition, all of the following must be true:
Below we'll discuss these criteria in more detail.
The workers’ comp system is designed to protect employees who suffer work-related injuries. It does not protect workers who are not employees, such as independent contractors and volunteers.
However, just because you are called an independent contractor doesn’t mean you are one. Whether workers are employees or independent contractors in the eyes of the law typically depends not on what they are called or how they are classified for tax purposes, but on how much control they have over their work.
Volunteers generally aren’t entitled to workers’ comp coverage, but some states make exceptions for certain volunteers, such as volunteer firefighters or police officers.
To recover workers’ comp benefits, you need to show that your injury or illness is "work-related." An injury generally is considered work-related if you were doing something for the benefit of your employer, and you were injured or became ill as a result. The injury need not take place at the worksite, but must take place during the course of your employment.
An injury typically is not considered work-related if:
Example. James, a salesperson, suffers an injury from a car accident while driving from his office to his client’s place of business. James will likely be covered by workers’ comp because his trip was business-related and occurred during the workday. However, if James was injured while driving home in his car after his workday was over, he probably wouldn't be entitled to workers' comp.
The vast majority of employers are required by state law to carry workers’ comp insurance, but there are exceptions. For example, very small employers (between two to five employees, depending on the state) are not required to offer workers’ comp coverage in some states. A few states don’t require charities to purchase workers’ comp insurance. Texas is the only state that does not require private employers to purchase workers’ comp insurance.
If you are injured on the job and your employer doesn’t have workers’ comp insurance despite a state requirement, you can file a personal injury lawsuit against your employer in civil court. Some states have an uninsured employers fund, and in those states, you can make a claim against the state fund instead.
Certain types of workers are exempt from or otherwise not covered by state workers’ comp coverage. While these job categories vary from state to state, the most common exceptions to state workers’ comp include:
When people think of a workers’ comp injury, they often picture a one-time, traumatic injury, like a fall from a ladder. But in many states, workers’ comp coverage extends to the following types of injury and illness as well:
Finally, depending on your occupation and the rules in your state, you might also be eligible for workers' comp benefits if you get COVID-19 as a result of your job.
Workers’ comp coverage generally does not extend to the following types of injuries:
A workers’ comp case can be broken down into four steps:
Appealing a workers’ comp denial can be complicated and time-consuming. It often involves a medical exam and several legal proceedings.
If your employer's insurance company disagrees with a decision by your treating doctor about your medical treatment, the insurer usually has the right to demand that you be evaluated by a doctor of its choice at an Independent Medical Examination (IME). After the IME, the doctor will prepare a report, which you can dispute if it contains any factual inaccuracies.
A workers' comp judge will often require you to participate in a settlement conference or mediation. At the mediation, a neutral third party will help you and the insurer attempt to resolve your claim informally.
The workers' comp hearing is your opportunity to make your case to a judge if you are unable to settle your claim. The hearing usually involves arguments by the lawyers, testimony by witnesses (including your own testimony), and presentation of evidence such as medical records, documents showing lost wages, and doctors’ reports. The judge will then make a decision. You have the right to appeal the decision if the judge rules against you.
Workers’ comp typically pays for a number of different types of benefits:
Some workers’ comp claims are straightforward, but many are contested, lengthy, and complex. An experienced workers’ comp lawyer can walk you through the process, keep track of deadlines, and represent you during your appeal.
Hiring a workers' comp lawyer won't cost you anything out of pocket. In most states, workers' comp attorneys charge a percentage of your benefits if you win your case, and nothing (or only case-related expenses) if you lose.
Each state has its own requirements for giving proper notice to your employer, though. If you do not follow the correct procedure, you may lose your right to collect workers’ comp benefits.
You cannot receive workers’ compensation until you report your injury or illness to your employer. While every state requires or encourages prompt or immediate reporting of an injury, most states also have a strict deadline that you must meet in order to avoid having your claim barred.
Notice deadlines vary from state to state. For example, the deadline is 30 days in California and 90 days in Iowa. In other states, the deadline is much shorter. For example, a worker has only four days to report an injury in Colorado and only ten days to report an injury in Maryland (other than an occupational illness).
In cases of occupational illness or conditions that develop gradually (such as arthritis or carpal tunnel syndrome), the clock typically begins to run when you discover the condition and its relationship to your work.
To learn the deadline that applies to you, select your state from our page on filing a workers’ compensation claim.
If you are late in reporting your claim, you may become ineligible for benefits or receive a reduced amount. For example, in Colorado, you will typically lose one day’s worth of benefits for every day that you are late.
Depending on what state you live in, you may need to give written notice. Some states require you to use a specific accident report form, while in others, any written format is acceptable (such as a letter or email).
Additionally, some employers have their own accident report forms that are not required by workers’ comp laws. If your state requires written notice, your employer’s form may satisfy the notice requirement (unless a state-issued form is required). If you complete your employer’s accident report, you should keep a copy for your records.
In other states, oral notice is allowed—typically by telling your supervisor or Human Resources department. Reporting your injury to a coworker is usually insufficient notice. However, even if oral notice is allowed, providing written notice can be to your benefit. If there is any question as to whether you reported your injury on time, you will have documentation to prove that you did. For that reason, be sure to keep a copy for your records.
When you notify your employer, include:
In addition to reporting your injury to your employer, some states require you to file a workers’ compensation claim form. Typically, you would file the form with your state workers’ compensation agency or give it to your employer to file with the agency. In some states, you can also file your claim online at the state agency’s website.
Many states have strict deadlines for filing a workers’ compensation claim form. If you miss the deadline, you will typically lose your right to collect workers’ comp benefits. To learn more about the rules in your state, see our filing a workers’ compensation claim page. An experienced workers’ compensation lawyer or your state’s workers’ comp agency can also help you follow the correct procedure.
Insurance companies frequently use written notices or accident reports to dispute workers’ compensation claims. Insurance companies may, for example, compare the information in your report to your doctor’s initial treatment records and other evidence. If any of the information you reported is incorrect or inconsistent, your workers’ comp claim may be denied.
When completing your written notice or accident report, avoid:
Your written report should be accurate and honest, but it does not need to include every potential detail of the incident. In fact, being too detailed can backfire. If the scope of your injuries is not clear yet, you may not want to be overly specific. In particular, do not include any diagnosis unless your doctor has given one.
However, you should report even minor symptoms. For example, suppose you hit your head at work and have only a minor headache. While it may seem trivial at the time, it could develop into something more serious later on. If the first mention of a headache happens weeks after your injury, the insurance company might question your credibility and deny your claim.
If you have questions about your workers’ compensation claim or whether you gave proper notice, consider speaking with a lawyer. A workers’ comp lawyer can guide you through the claim process and educate you about your legal rights. And, if your claim is denied, a lawyer can help you file an appeal.
]]>But you need to follow certain steps to start the process of claiming those benefits, including reporting your injury and filing a formal claim.
This article explains the process and deadlines for doing that.
Unlike almost all other states, Texas doesn't require most employers to have workers' comp insurance. Instead, the state allows private employers to decide whether or not they want to get insurance and participate in the Texas workers' compensation system. So if you have a work-related injury or illness, you need to find out if your employer has insurance coverage.
Employers are legally required to give this information to all of their employees. But if you aren't sure, you can verify your employer's insurance status through the state's online database.
If your employer has coverage, you generally have to go through the workers’ comp system in order to get any compensation for your injury. However, you may be able to sue your employer in certain situations, including when it doesn't have workers' comp insurance. (Learn more about when you can sue your employer for a work-related injury.)
The first step in the workers' comp process is to report your injury to your employer. Legally, you may lose your right to collect benefits if you don't give this notice within 30 days after the injury. But it’s best to notify your employer as soon as possible.
The insurance company might be skeptical of your claim if you wait more than a day or two to report an injury without good reason. If you have a medical condition that developed over time (like a repetitive stress injury or occupational illness), the 30-day period starts as soon as you learned that your condition was related to your work.
Once you report your injury, your employer should tell you how you can get medical care. If your employer has a contract with a workers’ comp health care network, you will generally need to choose a doctor in that network.
Otherwise, you can see any doctor on the list of physicians approved by the Texas Division of Workers' Compensation (DWC). At your first visit, be sure to tell the doctor that you were injured at work.
To start your official claim, you must file an Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease (DWC Form-041) with the DWC. You can file the form in person, by mail, or through the DWC’s online filing system.
The claim form asks you to provide information about you, your injury, your work status, and your employer. At the end of the form, you can find more detailed instructions for how to answer each question. If you need assistance, you can contact the Office of Injured Employee Counsel, a separate state agency that helps employees with their workers’ comp claims.
You must file the form within one year after your accident or after you learned about your work-related occupational illness. Once again, you could lose your right to benefits if you miss the deadline, unless you qualify for one of the limited exceptions.
Once the DWC receives your claim, it will notify your employer and its insurance company. The insurance company will then review your claim and decide whether to accept or deny it. (Learn about common reasons for denied workers' comp claims.)
If the insurance company denies your claim, you can challenge that decision through the DWC. You'll need to participate in a benefit review conference before you can get to a hearing before a workers' comp judge. (Learn more about the steps for appealing a decision in your workers' comp case.)
Because contested case hearings follow complex procedural rules, most injured employees will need to hire an experienced workers’ comp lawyer in order to win at the hearing. Fortunately, workers’ comp rules make it feasible to hire an attorney.
For more information, see our article on how much workers' comp lawyers cost.
]]>Whether you can be laid off or fired while receiving workers' comp depends on the reason for the layoff. Receiving workers' comp generally protects you from being laid off, but not all layoffs are illegal.
Here's what you need to know if you've been laid off while collecting workers' comp.
State and federal law protects workers from illegal retaliation for filing for workers' comp benefits. That means if you employer laid you off because you filed for workers' comp, were receiving workers' comp, or were on workers' compensation leave, that is likely a case of illegal retaliation.
However, if your employer would have laid you off even if you were still on the job, the fact that you are away from work on temporary disability leave doesn't necessarily protect you from a layoff or other termination. If that sounds like legal hairsplitting, read on.
All states have laws that prohibit employers from retaliating against employees who ask for or receive workers' compensation benefits. An employer cannot fire, demote, harass, lay off, or otherwise harm these employees because they are exercising their rights under the workers' comp system. An employee who has been the victim of unlawful retaliation can sue the employer for wrongful termination.
In most states, however, employers aren't required to give special treatment to employees just because they're out on temporary disability leave. Employers in these states may lay off or fire injured employees who are on leave for any legal reason (meaning that it's not illegal retaliation).
Learn more about whether and where injured employees have job-protected workers' comp leave.
How often will an employer actually admit to firing an employee because they filed for workers' comp? Almost never. In most cases, the employer will cite another reason—say, a business downturn or poor performance—as a pretext for the firing.
So how can you determine the real reason? This is where an employment lawyer generally gets involved. In a lawsuit for wrongful termination, your lawyer will try to gather evidence to show that the employer's cited reason for the layoff was merely a pretext.
For example, if your employer cites poor performance, your attorney can argue that you never received a negative performance review. If your employer cites a lack of business or an economic downturn, your attorney can ask why similarly situated employees were not also laid off.
In a wrongful termination case, it will be up to the judge or jury to sort out the fact from the fiction.
If you believe you may have been targeted for the reduction in workforce specifically because you filed a workers' comp claim and were out on temporary disability, you should speak to a lawyer.
There may be short time limits for claiming that your employer has retaliated against you. An attorney who's experienced in workers' compensation can look at the facts of your case, explain how the law in your state applies to your situation, and help protect your rights.
To get these benefits, you must report your injury and file a claim according to your state's procedures. While each state has its own workers' comp system, the procedures for filing a claim are generally similar. Below we'll discuss the workers' comp claims procedures that all states share.
In nearly all states, the first step to getting workers’ compensation benefits is to report your injury or occupational illness to your employer. States have very different time limits for notifying an employer of a work injury or illness. The deadline is often 30 days or so, but it can be as short as a few days and as long as a year.
Regardless of how much time you have, you should inform your employer of your injury as soon as possible. The longer you wait, the more skeptical your employer or its insurance company will be of your claim. And, the sooner you file your claim, the sooner you can receive benefits.
You should also get immediate medical attention if your injury requires it. For emergency treatment, you can go to the nearest emergency room or urgent care. For all other treatment, you will need to follow your state’s rules for seeking medical treatment.
Once you report your injury, your employer should give you any necessary forms to fill out. Typically, the employer will submit these forms to its insurance company and the state workers’ compensation agency. In some states, this will be the official start to your workers’ compensation claim. In these states, you will need to file official paperwork with the state workers’ comp agency only if your benefits are denied and you want to appeal the decision.
In other states, you will also need to file an official workers’ comp claim form with the state workers’ compensation agency at the start of your case. The deadline for this step also varies from state to state. While workers often have a year to file the claim, the timeline could be significantly shorter in some states. (Learn more about the various time limits in workers' comp cases and details on the filing procedures for workers' comp claims in certain states.)
You can get information, forms, and assistance from your state's workers' compensation agency. In the unlikely event that your employer refuses to cooperate with you in filing a claim, a call to your local workers’ comp office will usually remedy the situation.
Federal employees are subject to a completely different workers’ compensation system. You can find forms and instructions for filing claims at the website of the Division of Federal Employees' Compensation.
The insurance company will conduct an investigation before approving or denying your claim. The insurer must tell you what it decided, usually within two to four weeks. In some states, if your claim isn't denied by the deadline, it will automatically be considered approved.
If the claim is approved, you’ll start receiving benefits. If your claim is denied—which often happens—you have the right to appeal.
If your claim has been denied, you should speak with a lawyer as soon as possible. There are many reasons for denials, from missed deadlines to disputes over whether your medical condition is related to work.
The appeals process is complicated, with strict deadlines. An experienced workers’ comp attorney can help your case in many ways, from gathering evidence that bolsters your claim to negotiating with the insurance company or representing you in hearings.
And a lawyer usually won’t cost you anything up front. In almost all states, workers’ comp attorneys charge a percentage of your benefits if you win—and nothing if you lose.
]]>Here's what you need to know.
In most states, workers’ compensation provides benefits for permanent scarring or disfigurement resulting from work-related injuries or from treatment for those injures (such as surgery).
However, your eligibility for these benefits and the amount you’ll receive depend on the state you live in.
In some states, permanent scars are factored into a worker’s permanent disability rating. For example, in California, the doctor who assigns you a permanent disability rating (stated as a percentage from 0% to 100%) will take into account any scarring or disfigurement.
In other states, workers can receive a one-time payment for scars or disfigurement, up to a maximum amount set by law. For example, in Massachusetts, a worker can receive up to $15,000 for certain scarring and disfigurement.
The location of the scars may also be relevant in determining whether you’re entitled to compensation. In most states, you can receive compensation for scars on the face, head, or neck.
Some states also allow workers to recover for scarring on arms, legs, or any other body part that would be exposed under certain circumstances (in a swimsuit or at work). However, a few states provide workers’ comp benefits for scars to limbs and other body parts only if the scar causes a loss of function or limits the worker’s ability to find employment.
If you've suffered a workplace injury serious enough to leave permanent and noticeable scarring, don't hesitate to hire an experienced workers' comp attorney to handle your case.
Hiring a workers' comp lawyer gives you the best chance of getting all the benefits you deserve, and most workers' comp attorneys don't charge a fee unless you win your case.
]]>The most common situations in which it might be possible to sidestep (or supplement) the workers' compensation process and file a lawsuit over a workplace injury include:
Let's take a closer look at some of these situations.
Some workplace injuries are caused by a product, machine, or piece of equipment that is defective or fails to work properly. In these situations, it's possible that the manufacturer of the product or equipment can be held responsible. For example, if the manufacturer knew of the danger and didn't take proper steps to warn the business or employees, the manufacturer might face a lawsuit in court, which could mean liability for the injured worker's medical bills, lost wages, and pain and suffering.
For example, let's say Thea works in a factory that produces office products. Her job is to operate a punch press that punches holes in boxes. One day, when Thea puts her hand into the press to adjust a box, the foot pedal she uses to stop the press sticks, and the press crushes three of her fingers. Thea can collect workers' compensation from her employer, and she also has a possible product liability case against the manufacturer of the defective press.
If you've been injured by an unsafe machine or other equipment in your workplace, consider talking to an attorney about your options. You can also file a complaint with the Department of Labor's Occupational Health and Safety Administration if there have been unsafe conditions (for more information, see Nolo's article OSHA: Complying With Workplace Health and Safety Laws), in addition to filing a workers' compensation claim. This is a particularly important step to take if your employer is still requiring you or other employees to use the faulty/dangerous equipment.
Sometimes chemicals and other substances that workers work with or around are toxic and can cause severe injuries and illnesses. These substances can include asbestos, benzene, chromium compounds, silica, and radium, but any substance that harms you could possibly be the subject of a "toxic tort" lawsuit.
Generally speaking, there are two kinds of toxic injuries: acute injuries are apparent immediately, while latent injuries may take years to appear. Examples of acute injuries include chemical burns and poisonings. Examples of latent injuries include cancers and lung diseases. Because of the time delay, latent injuries tend to be more difficult to prove than acute ones, but workers have been successful in lawsuits brought years after their exposure to the toxic substance. In particular, workers who suffer from asbestosis or mesothelioma almost always succeed in claims because the causation between exposure to asbestos, asbestosis and mesothelioma is well established.
Of course, it's not always clear who is on the legal hook when a worker is injured by a toxic substance on the job. While the worker might be able to sue the manufacturer of the toxic substance, there might be situations in which the employer failed to take proper safety precautions, didn't provide adequate safety equipment, or otherwise fell short in its obligation to protect workers.
If a substantial amount of time passed between your exposure to a toxic substance in the workplace and the onset of your illness, you might want to discuss your situation with a legal professional. Crucial (and complicated) issues related to causation (the link between your exposure and your illness) and your right to sue after the passage of years (set by a law called a statute of limitations) are best handled by an experienced lawyer.
If the toxic substance is continuing to make the workplace unsafe for your or others, consider taking the additional step of filing a complaint with the Occupational Safety and Health Administration (OSHA).
Sometimes when an employee is injured on the job, the fault lies not with the employer or with a dangerous substance or machine, but with another person. In such a case, the employee might be able to sue that person for damages.
For example, Diana drives a company car to make sales calls on her clients. While en route to a client's office, she is hit by Joe, who runs a red light. Joe is at fault in the accident and is the cause of Diana's injuries. Diana can bring a lawsuit against Joe for damages (and Joe's car insurance company may pay out a settlement without a lawsuit).
A workers' compensation claim can provide a quicker avenue to money and benefits to an injured worker. But temporary disability and permanent disability payments can be low, and don't compensate the worker for the full spectrum of damages that might be available in a lawsuit, including compensation for the injured person's pain and suffering, and punitive damages that might punish an employer for poor safety controls or dangerous conditions.
In addition to the lawsuit scenarios we've described in this article, you might be able to government benefits such as Social Security disability insurance (SSDI or SSI) if your injury is disabling and prevents you from working. For more information, see Nolo's article on Social Security Disability Benefits.
If you think the circumstances of your workplace injury might enable you to file a personal injury lawsuit (in lieu of or alongside a workers' compensation claim), it might make sense to discuss your situation with a lawyer. The threshold issues of who might be at fault for a worker's injury—and the right procedural path for the injured worker to take—need to be answered correctly in order to ensure the best outcome. Learn more about getting help from a personal injury lawyer.
]]>Workplace retaliation means your employer has effectively punished you for exercising a legally protected right, such as reporting a health and safety issue, complaining about a wage and hour violation, or trying to form a labor union.
In California, like in most states, it’s also illegal for an employer to retaliate against an employee for filing a workers’ comp claim. Employers cannot fire, threaten to fire, discipline, or otherwise discriminate against employees because they’ve applied for workers’ comp benefits.
At the same time, employers may continue to run their businesses and take personnel actions based on legitimate business reasons. If your employer has taken an adverse employment action against you, the key question is whether this action was for a legitimate business reason or in retaliation for your workers’ comp claim.
If you were having performance problems at work before your injuries, or if the company was cutting back hours for other employees, that might be evidence that your employer is acting for legitimate reasons. But if you haven’t had performance issues and you’re the only one whose hours are being reduced, it starts to look like you’re being singled out because you applied for workers’ comp.
Because the legal penalties for retaliation can be expensive, your employer and its insurance company will no doubt do everything they can to prove that your supervisor had a legitimate business reason to cut your hours. So now would be a good time to speak with a workers’ comp lawyer, if you haven't already done so. An attorney who’s experienced in this area of the law can look at your situation, determine whether there’s evidence of retaliation, and help you gather the kind of proof needed to support your claim.
]]>Some states require mediation, while in other states it's voluntary. Because many claims are resolved during mediation, you will want to be well prepared.
A mediation or settlement conference is an informal negotiation process—you will not testify under oath or present witnesses. Instead, you and the insurance company will discuss the claim and make settlement offers with the help of a trained, neutral third party (the mediator). The mediator may be an experienced workers’ comp lawyer, a representative from the state workers’ comp agency, or a workers’ compensation judge.
The mediation process varies from state to state. In some states, mediation is a short meeting where a mediator sits with you and a representative of the insurance company to informally discuss the case.
If you and the insurance company cannot agree on a settlement, your appeal will progress to the next stage (typically a formal hearing). If you do reach an agreement at mediation, you will sign a settlement agreement and your case will be resolved. (To learn more, see our article on the different types of settlement agreements.)
In other states, mediation is more detailed and lengthy. The mediator might begin by asking you and the insurance company to summarize your claim and legal arguments.
The mediator might then ask questions and point out the strengths and weaknesses on both sides. The mediator will usually then separate the parties into different rooms for private discussions.
After these conversations, the mediator might make a settlement recommendation. If you and the insurance company cannot agree on a settlement, your claim will be set for hearing.
In some states, mediation and settlement conferences are different processes. For example, in Michigan, mediation is typically used for medical-only claims and claims involving an unrepresented worker.
A representative from the state workers’ compensation agency mediates these disputes. Typically, a state mediator will try to resolve the dispute but will not recommend a settlement value.
A more detailed settlement conference is also required in almost every Michigan workers’ comp appeal. At this conference, both you and the insurance company present arguments, and a judge will evaluate your claim's settlement value.
An injured worker is not required to a have a workers’ compensation lawyer. However, mediation requires a detailed legal analysis of the claim, the calculation of unpaid benefits, and negotiation skills.
It can be difficult for an injured worker to fully prepare a workers’ comp claim alone. Unless your claim is very simple, you should consider contacting a workers’ compensation lawyer for assistance before you attend mediation or settlement conference.
By signing a settlement agreement, you are giving up important rights in your workers’ comp case. An experienced lawyer can guide you through the mediation process and make sure you are receiving a fair workers’ comp settlement. (For more information, see our article on whether you need a workers’ comp lawyer.)
A large percentage of cases that go to mediation settle. However, your level of preparation can have a big impact on the result you get at mediation. If you’re unfamiliar with the legal issues in your case or the amount of benefits you are owed, your claim might be undervalued at mediation—meaning you won’t get as much compensation as you deserve.
Below are some tips on how to prepare for mediation. Some of these tasks will be handled by your workers’ compensation lawyer, if you hire one.
To start, you should put together a file containing all of the evidence in your workers’ comp claim, including copies of your medical records. At mediation, you (or your lawyer) will probably have to explain the medical issues and discuss the evidence supporting your claim for benefits.
Next, you should calculate your amounts of unpaid medical bills and wage loss benefits. The mediator will need to know how much the insurance company may owe you before making a settlement recommendation.
You’ll also need to understand how much you might be owed before you negotiate with the insurance company. If you don’t have a good understanding of your claim’s financial value, you'll be at a serious disadvantage during a mediation or settlement conference. It is usually in your best interest to hire a workers’ comp lawyer to help calculate the value of your claim.
Most mediation hearings are scheduled for a set period of time. If you're late, you might be unable to complete the mediation process. Additionally, the mediator and the insurance company are assessing your credibility. Showing up late may indicate that you do not take your claim seriously. It is best to arrive early.
Your workers' comp lawyer, if you've hired one, will also want to meet with you before the actual mediation to prepare and discuss your claim.
Workers’ comp appeals can be stressful. However, you should do your best to remain polite and professional throughout the mediation. Try to focus on the facts of your case rather than your frustration with the insurance company. Mediators and judges evaluate claims based on evidence, not your emotions. However, this doesn’t mean you have to agree with everything the insurance company says. Instead, have evidence prepared that supports your claim. If you have a lawyer, he or she will guide you through the process and help you present professional and fact-based arguments.
Additionally, the mediator and the insurance company will evaluate your credibility. The insurance company will be more interested in settlement if your statements are believable and consistent with the evidence. (Most insurance companies would rather settle claims than risk losing at a hearing.)
While you don’t need to wear a suit to your mediation or settlement conference, you should be neat and clean. Mediation is an informal process and you may dress casually. Jeans and a button up shirt are usually acceptable. If you have a lawyer, check with him or her about what to wear beforehand.
If you came to an agreement with the insurer at mediation, you'll be sent paperwork to finalize the settlement and your benefits will start within a few weeks or months.
If you couldn't agree on a settlement with the insurance carrier, your case will proceed to a hearing in front of a workers' comp judge, although you can still come to a settlement agreement before the hearing takes place.
Mediation is a critical stage of the workers' comp process. Not surprisingly, most people find it helpful to have an attorney on their side to help them navigate this process. Workers' comp attorneys typically charge a fee only if you win your case, so hiring one requires no money up-front.
]]>Here are some practical tips on how to get the most out of your workers’ comp claim.
The first thing you should do after a work injury is immediately report it to your boss. Every state requires workers to give notice of their injuries by a certain deadline, which varies significantly by state. If you miss the deadline, you might lose your right to collect workers’ comp benefits. In some states, you’ll also need to file a workers’ compensation claim form by a certain date in order to officially start your claim. To learn more about these requirements, read our article on filing workers’ comp claims.
You should seek medical treatment as soon as possible after your injury. Prompt medical care can lead to a quicker, fuller recovery. It also serves as important medical evidence in your workers’ comp claim by documenting your accident and describing your injuries and physical restrictions. If you delay in getting treatment, the insurance company could argue that you weren’t as seriously injured as you say you were—or that your injury never happened at all.
In many states, workers must initially treat with a doctor chosen by the insurance company. When you treat with the insurance company’s doctor, there is a potential conflict of interest. These doctors are paid primarily by insurance companies and may not always have your best interests in mind. For example, the doctor might minimize your injuries and treatment so that the insurance company won’t have to pay you as much. (If you’re lucky enough to live in a state that lets you choose your own doctor, this usually won’t be a problem.)
Because your treating doctor will play an essential role in your workers’ compensation case, you should switch doctors if you think you’re not getting the best treatment. Each state has its own rules and procedures for changing doctors, which vary significantly. For example, there might be a waiting period before you can switch, or you might be limited to only one change during the course of your workers’ comp claim. And, in some states, the insurance company will select your new physician or you’ll be required to choose from a network of approved doctors.
Injured workers should understand the available benefits through the workers’ comp system. While each state has its own rules for eligibility and amounts, the following benefits are typically available:
Because insurance companies are for-profit businesses, you shouldn’t rely on the adjuster to fully explain your state’s benefit system or all of the available benefits. If you have questions, contact your state workers’ compensation agency or a workers’ comp lawyer for help.
Unlike a regular doctor’s appointment, an independent medical examination (IME) does not focus on treating your injury. Instead, the insurance company hires a doctor to perform an examination, review your medical records, and issue a report. This report summarizes the doctor’s opinion on your diagnoses, work restrictions, and the relationship between your injury and your work. Frequently, insurance companies schedule IME’s when they want to terminate or reduce your workers’ comp benefits.
If you are scheduled for an IME, you must attend the appointment (or risk termination of your workers’ comp benefits). It’s important to prepare for the IME by reviewing your medical records and anticipating tricky questions from the IME doctor. See our article on how to prepare for your IME to learn more.
If the insurance company questions your credibility, it might hire a private investigator to follow you around. The investigator will watch you at home and in public places—hoping to catch you doing something that contradicts your workers’ comp claim. For example, suppose you tell your doctor that you can’t lift more than five pounds. If surveillance footage shows you carrying boxes into your house, the insurance company will use it to argue that you’re lying about your symptoms. However, the footage can easily be misinterpreted—the boxes might be lighter than they appear or you might have experienced a serious increase in pain afterward. If you think you are under surveillance, talk to a workers’ comp lawyer about how you can minimize the impact of surveillance footage.
It’s always in your best interest to keep copies of paperwork concerning your workers’ comp claim, including work restrictions, letters from your employer or the insurance company, and completed forms (such as an accident report). While your doctors will create medical records documenting your treatment, work restriction slips are not always put in your medical records. Many of these records are essential for getting your workers’ comp claim approved and paid.
Insurance companies are for-profit businesses. They frequently deny legitimate workers’ compensation claims in an attempt to save money. However, you have the right to appeal the insurance company’s denial. Many workers who received initial denials end up receiving at least some workers’ comp benefits after filing an appeal.
While every state has a different process and requirements, an appeal typically requires filing a written form with the state agency by a certain deadline. Once the state agency processes your appeal, a judge will typically schedule one or more hearings to assess and resolve your dispute. Because workers’ comp appeals are complicated and require extensive legal and technical knowledge, you should seriously consider hiring a workers’ comp lawyer at this point. (For more information, read our article on workers’ comp appeals.)
Unless you have a workers’ comp lawyer, you must attend every legal meeting or court date during an appeal (such as mediation, scheduling conferences, and hearings). If you do not appear at a scheduled legal appointment, you risk losing some or all of your benefits. Even if you have a lawyer, you will need to show up for some key events (such as your deposition or an independent medical examination). If you have to miss an appointment, it should be for a good reason and you should notify the insurance company and the state agency beforehand.
You might not need a lawyer if your workers’ comp claim is very simple or if the insurance company voluntarily pays your claim. However, consider hiring an experienced lawyer if the insurance company:
It can be difficult to navigate the workers’ comp system, including when to accept a settlement offer and for how much. A lawyer can properly value your claim, negotiate with the insurance company, and represent you in an appeal, if necessary.
]]>If you’re suffering from PTSD because of your job, you may be wondering if you can get workers’ compensation benefits. The answer largely depends on where you live and the nature of the event that caused your symptoms.
According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V), PTSD is a cluster of symptoms that happen after someone is exposed to actual or threatened death, serious injury, or sexual violence. Some examples of workplace situations that might give rise to a PTSD claim include:
People with PTSD re-experience the original trauma in the form of nightmares, flashbacks, upsetting memories, and emotional distress or physical responses to any reminders of the original event. They also have a range of symptoms from depression and anxiety to difficulty concentrating or sleeping.
Employees can suffer work-related psychological or mental problems in three different ways. PTSD is an example of what are called “mental-mental” claims (in workers’ comp jargon), because it's a mental health problem that developed as a result of a mental or psychological condition at work.
Compared to so-called physical-mental claims (work-related physical injuries that cause psychological conditions, such as when chronic pain from a back injury leads to a sleep disorder), mental-mental workers’ comp claims are much more difficult to prove—if they’re allowed at all.
States generally have three different ways of treating mental-mental workers’ comp claims like PTSD:
In a time when mass shootings and other violence at workplaces are distressingly common, lawmakers in some states are moving to loosen the restrictions on workers’ comp claims for PTSD, especially for first responders. For instance:
If you file a workers’ comp claim based on work-related PTSD, you can expect your employer’s insurance company to scrutinize your claim very closely. This is especially true if you’ve ever filed a workers’ comp claim before.
Even when you’ve received a formal PTSD diagnosis from a psychiatrist or psychologist, investigators are likely to dig into your personal life to verify that your symptoms are genuine and related to a qualifying workplace incident. Their tactics may include checking your criminal history and credit report, interviewing your coworkers and supervisors, and reviewing your previous mental health records.
The best way to document the severity of your PTSD symptoms is to obtain consistent treatment with a mental health specialist, preferably a psychiatrist or psychologist. In many cases, PTSD symptoms don’t appear until months (or even years) after the triggering traumatic event.
When this happens, it can be especially challenging to prove that your symptoms are related to work. That’s why it’s so important to seek treatment for your symptoms as soon as you begin to experience them.
Ideally, your treating physician will carefully document your reported symptoms and provide a written opinion about how those symptoms limit or prevent your ability to work. Statements from friends, family members, and co-workers addressing your observed limitations can also help your case.
If your workers’ comp claim is approved, you should be able to get reimbursed for the costs of treating your condition. You might also qualify for temporary disability benefits when you’re out of work recovering, or permanent disability benefits if doctors concluded that your PTSD permanently limits your ability to work and earn a living. But many states place strict limits on disability benefits for psychological injuries (or prohibit them altogether).
If you suffer from PTSD as a result of an incident that took place while you were working, you should speak with a workers’ comp lawyer as soon as possible. An attorney who’s experienced in this area should be able to explain the workers' comp system in your state, including whether PTSD claims are allowed and in what circumstances.
A good workers' comp attorney can also help you file your claim, meet the strict deadlines, anticipate and counter the insurance company’s inevitable arguments against your claim, and represent you if you need to file an appeal. In addition, your lawyer will work with your doctors, therapists, and counselors to develop the medical evidence necessary to prove your case.
Generally, workers’ comp lawyers charge only a limited percentage of the benefits you win or receive in a settlement. So you don’t pay anything up front, and there’s no fee if you lose.
]]>If you’re not able to resolve the dispute informally through a settlement, a judge will schedule a formal hearing and issue a decision in your case. A formal workers’ comp hearing is typically your only chance to present your case in front of a judge and show why you’re entitled to benefits, so it’s important to understand the process and rules involved.
For many injured workers, a workers’ comp hearing is too difficult to handle on their own. At this hearing, you will need to convince a judge that you’re entitled to a certain amount of workers’ comp benefits, by making legal arguments and presenting evidence.
You should seriously consider hiring an experienced workers’ compensation lawyer to represent you at your hearing. A lawyer will make sure that you have the proper evidence to show the judge. Workers’ comp laws make hiring a lawyer affordable. To learn more, see our articles on how much workers’ comp lawyers charge and what a good workers’ comp attorney should do.
Before your case goes to a hearing with a workers’ comp judge, there typically will be other proceedings and court dates. At a minimum, this usually includes mediation and a pretrial conference. During mediation, you and the insurance company (and your lawyer, if you have one) will try to negotiate a settlement with the help of a neutral third party. At a pretrial conference, you may exchange information with the insurance company’s lawyers and the judge. You may also continue trying to negotiate a settlement. To learn more, read our article on what happens in workers’ comp mediation and settlement conferences.
If you have a workers’ comp lawyer, you may not need to attend all of these preliminary hearings. While you typically must attend mediation, your presence may be unnecessary at a pretrial conference. Check with your lawyer to see if you need to be there.
Before you attend your workers’ comp hearing, you should organize your evidence—including medical records, unpaid medical bills, doctors’ reports, and other documents. You should also mentally prepare to testify. If you have a workers’ comp lawyer, your lawyer should meet with you beforehand to discuss your claim and help prepare you to testify at the hearing. To learn more, see our article on how to prepare for a workers’ comp hearing.
At your workers’ comp hearing, you will present your case to a judge. Among other things, the judge will evaluate whether you should be believed. It’s important to be polite and respectful at all times. You should also be on time for your hearing and appropriately dressed. Although you don’t have to wear a suit or business attire, your clothing should be neat, clean, and respectful.
Most workers’ comp hearings last a few hours, although complicated claims may take several days. If the hearing is long, the judge will give you breaks. On the day of your hearing, you should bring any medications or items you may need for the day (such as a heating pad or TENS unit for pain relief). Your lawyer may have more specific instructions, so be sure to ask beforehand.
Certain people always attend a workers’ comp hearing:
Other people may also be there, including a court reporter (who will type a transcript of the hearing), witnesses (including coworkers, supervisors, and doctors and other experts), a representative from your employer, and an insurance company representative.
At the beginning of the hearing, you and the insurance company will give the judge documents (or “exhibits”) to review, including:
Most states have specific rules about what you can give the judge. For example, you typically must let the insurance company’s lawyer know what records you plan to submit and provide the lawyer with copies in advance of your hearing. If you don’t follow the rules, the judge may not accept your documents as evidence.
You will usually testify at the hearing. Typically, your testimony will include:
Before you testify, the judge will put you under oath to tell the truth. Then, your workers’ comp lawyer will ask you a series of questions. Once your lawyer is finished questioning you, the insurance company’s lawyer will have a chance to ask you additional questions (called a “cross-examination”). The judge might also ask you questions.
No matter who is asking the questions, you should answer them truthfully and accurately. If you don’t know the answer, don’t guess. Instead, simply say, “I don’t know” or “I can’t remember.” During your testimony, the judge is not only looking for factual information but is also assessing your credibility. If you’re rude, evasive, or dishonest, you may hurt your chances of a favorable decision.
Most states have specific rules limiting what you can say in your testimony. For example, you typically aren’t allowed to testify about what other people told you, because this is considered hearsay. If you make statements that inadmissible (meaning they aren’t allowed as evidence), the insurance company’s lawyer may object—and the judge may decide not to consider this evidence.
Sometimes, both you and the insurance company may want to present other witnesses. These witnesses may include coworkers who saw your accident, the insurance adjuster who denied your claim, and experts.
Most of the time, doctors give their testimony ahead of time at a deposition (where the doctor’s sworn testimony is typed out) rather than at the hearing. However, you might have vocational and other experts testify in person. (A vocational expert evaluates your ability to find other work and may be necessary in some states.)
Both you and the insurance company will have a chance to ask these witnesses questions.
The judge usually will not make a decision at your hearing. Instead, the judge will review the exhibits and consider all of the testimony. You and the insurance company may also have the opportunity to submit a written brief with arguments to support your side of the case.
After reviewing all of this information, the judge will write a decision that will be mailed to you, your workers’ comp lawyer, and the insurance company. Typically, judges issue decisions within 30 to 90 days.
If the judge rules against you, you can appeal that decision. The appeal process and filing deadlines vary from state to state, but they may be as short as a week or two. If you need help, contact an experienced workers’ comp lawyer or your state agency.
]]>Some states require that virtually all employers maintain coverage, while others require it only from employers of a certain size or in certain industries. In Texas, employers aren't required to maintain coverage, but some do so voluntarily.
The rules in California are employee-friendly: all employers must have workers' comp coverage. If your employer doesn't have it, there's a good chance it's violating the law. Here's how to find out whether your employer is covered by workers' comp.
In California, as in most states, all employers—even if they have only one employee—must have workers’ compensation insurance (Cal. Labor Code § 3700 (2022)). Some very large employers can insure themselves, but the small company you work for probably wouldn’t meet the strict requirements for self-insurance. So unless your employer is violating the law (more on that below), it should have a policy with a licensed workers’ comp insurance company.
There are a couple of different ways to find out the name of that company. California employers are also legally required to post a notice about workers’ compensation that includes the name of its insurer. The notice is supposed to be somewhere conspicuous, where employees can easily see it. (Cal. Labor Code §§ 3550 (2022).)
Check your break room, changing room, or near a time clock. If you can’t find the notice, you can look for your employer’s insurance company online, using the California Workers’ Compensation Coverage Inquiry search tool. (Here again, other states have similar notice requirements and search tools.)
In California, employers have a number of legal obligations under the workers’ comp system. Within a day after you report a work-related injury, the employer must give you a claim form that includes information about the workers’ comp process and what you have to do to apply for benefits. (See more details in our article on how to file a workers’ comp claim in California.)
If it turns out that your employer doesn’t have workers’ comp insurance, you may sue your employer outside of the workers’ comp system and seek the full range of damages available in a personal injury lawsuit—an option that generally isn’t available when employers have insurance.
You may also file for workers’ comp benefits with California's Uninsured Employers Benefits Trust Fund (UEBTF). If you qualify, the fund would pay those benefits directly to you (and then try to collect from your employer).
Trying to collect workers' comp benefits if your employer is uninsured can be complicated and time-consuming. You’d be wise to contact a workers’ comp lawyer who can help you through the process, discuss the pros and cons of filing a civil lawsuit, and protect your rights.
]]>The first step toward getting any kind of workers’ comp benefits is to show that you meet all of the basic eligibility requirements:
Also, you must follow your state’s rules for getting medical treatment from a workers’ comp treating doctor.
You generally won’t be considered for permanent disability benefits until your treating doctor says you’ve reached a plateau in your recovery—meaning that your condition isn’t expected to improve further with more treatment, at least in the near future. In workers’ comp lingo, this is usually called “maximal medical improvement” (MMI), or sometimes “permanent and stationary.”
The amount of time it takes to reach MMI can vary widely—anywhere from a month to a few years after you were first hurt or became ill. The nature of your injury or illness will have the biggest impact on how long it takes. Even if you don’t completely heal from a broken leg—for instance, if you continue to have trouble walking on uneven surfaces—your condition will probably stabilize more quickly than if you got cancer from on-the-job exposure to toxic chemicals. But other factors can play a role too, including the medical treatments that are available and whether the insurance company has been dragging its feet on approving surgeries or other expensive procedures.
Some states, like Texas, assume that employees have reached MMI when they’ve been getting temporary total disability benefits for a period of time (usually 104 weeks).
Once your doctor says you’ve reached MMI, the process will begin to determine whether you have any permanent disability and, if so, how much. This is also generally the point when you’ll stop receiving temporary disability payments if you’ve been off work and those benefits haven’t already run out. (Several states have a time limit on temporary total disability benefits.)
The rules for determining permanent disability vary considerably from state to state. Usually, your treating doctor will say whether you have a lasting medical condition or lost function (referred to as an impairment) that resulted from your work-related injury or illness. An impairment could be anything from a bad back to a severed finger to opioid dependency from painkillers that you had to take for a serious orthopedic injury.
Depending on the rules in your state, the insurance company may request an independent medical examination (IME) to assess your permanent impairments. You might also be able to ask for an IME if you disagree with another doctor’s opinion.
States have different criteria for using the medical information about impairments to decide whether injured employees have permanent disabilities that affect their ability to perform certain tasks—or even to work at all. Most commonly, the result of the process is what’s called a permanent disability rating, expressed in a percentage.
You don’t necessarily have to prove that you can’t work at all in order to receive total permanent disability benefits. For instance, you may be considered totally and permanently disabled if you have certain kinds of injuries (for instance, if you lost both eyes or both legs). You may also qualify if you have a combination of permanent impairments that add up to a 100% disability rating.
If your disability rating is less than 100%, you may be able to receive some kind of partial permanent disability benefits, although states have different systems for compensating employees who have lasting effects from their injuries. (Learn more about how to get permanent partial disability through workers’ comp.)
Once the insurance company hears from a doctor that you have a permanent disability, the company should begin sending you checks for permanent disability benefits shortly (usually about two weeks, as required by state law).
But if there’s a dispute—over the amount of permanent disability or whether you have any lasting impairments—you should contact a workers' compensation lawyer as soon as possible.
The rules and the process are complicated, and insurance companies (and their lawyers) do everything they can to keep their costs down by denying or minimizing permanent disability benefits. You need an experienced attorney on your side to protect your rights and your future.
You should also know that permanent disability benefits don’t necessarily last the rest of your life. If you’re totally and permanently disabled, you’ll usually be entitled to a lifetime pension (though a few states cut off payments at a certain point for all but the most serious disabilities). When it comes to partial permanent disability, however, most states limit how long the benefits last.
Whether the benefits are for partial or total permanent disability, some states allow you to opt for a lump-sum payment in a workers’ comp settlement. Here again, it would be wise to speak with a workers’ comp attorney before you agree to a settlement to make sure you don’t unwittingly sign away important rights.
]]>But what can you do if your claim has been denied? The answer could depend on the reasons for the denial.
Employers or their insurance companies sometimes look for any possible reason to deny workers’ comp claims. Of course, that reason should be a valid one under the law. There are several common reasons for claim denials, including:
Don’t give up your right to workers’ comp benefits just because your claim was initially denied. First, look closely at the letter telling you that your claim was denied. It will probably include the reasons for the denial. If you think it was simply a matter of mistaken paperwork or something similar, you might consider contacting the claims adjuster to see if you can clear up the problem.
But this route isn’t likely to be successful unless your employer or the insurance company made a bona fide mistake and admits it. More likely, you’ll have to consider appealing the denial.
The letter you received may include information about how to appeal the denial of your claim. If so, read it carefully.
The appeals process varies in each state. Often, the first level of appeal will be at a hearing before an administrative law judge, where you’ll have to present medical and other evidence to support your claim.
The hearing can be through a state labor department or a state board of workers’ compensation. There are additional levels of appeal beyond the initial administrative levels as well, which vary depending on the state.
Each state has its own deadline for appealing a workers' comp denial, generally between 30 and 90 days. Look for your state's deadline on your denial letter, or look it up or your state's workers' comp agency's website.
Unless your claim was denied due to a simple mistake that was immediately cleared up, it would be smart to speak with a workers' comp lawyer as soon as possible. An attorney can help you determine whether an appeal would be the best course of action for you. The timelines for workers’ comp appeals are short and strict, and you don’t want to lose your rights to benefits just because you missed a deadline.
Before you consider filing any appeal yourself, you should definitely talk to an attorney. Appeals are complicated legal processes, involving rules of evidence and civil procedure that the judge will expect you to know.
If you don’t win at the initial levels, you may not be able to present additional evidence later in the process. One of the reasons that many injured employees lose their appeals is because they didn’t have an experienced workers’ compensation attorney at their side to help them prepare a strong case.
Also, most workers' comp lawyers charge only a percentage of the benefits you actually receive, so it won't cost you anything unless you win.
]]>A workers' comp deposition is a recorded session during which an injured worker, a doctor, or another witness answers questions under oath.
Because insurance carriers often depose injured employees as a matter of routine during workers’ comp cases, it’s likely that you will be called to testify in one of these question-and-answer sessions.
If the thought of being grilled by a lawyer makes your stomach churn, this article may offer some comfort. Being prepared and knowing what to expect can take most of the sting out of the deposition. It also helps to know that when it comes to workers’ comp cases, depositions are rarely the dramatic events portrayed in movies and TV shows.
More often than not, the lawyer taking your deposition will be polite and courteous, rather than confrontational and aggressive.
If you’ve hired an attorney, your lawyer should help you prepare for the deposition. With or without a lawyer, you should go over all of your records and personal notes to refresh your memory about the accident, your injuries and symptoms, when you missed work, and the other issues you’ll probably be asked about (discussed below).
Normally, the deposition will take place in a conference room at a law firm. Although some states already allowed remote depositions by telephone or video conferencing, this has become more common since the beginning of the COVID-19 pandemic.
However, many states require that both sides agree to conducting a deposition remotely rather than in person (and some of the rules allowing remote administration of oaths are temporary).
You can expect at least a handful of people to be in attendance (virtually or physically): you, your lawyer (if you have one), the lawyer taking your deposition, and a court reporter. The court reporter’s role is to make a written transcript of the deposition, so that it can be used as evidence in the case.
Even though the deposition takes place in an informal setting, you will be testifying under oath, just as if you were in a courtroom. This means that you must answer each question truthfully and to the best of your knowledge.
If you lie on purpose, you could be found guilty of perjury. (More likely, it will hurt your workers' comp case if the lie is discovered.) Before the deposition begins, the court reporter will swear you in and have you verify that you understand your obligation to be truthful.
The lawyer taking your deposition may begin by giving you a brief overview of the deposition process and general guidelines to follow. After that, the lawyer will begin asking you a series of questions about the following topics:
There are certain ground rules that you should follow when having your deposition taken. By following these dos and don’ts, you will ensure that your deposition goes smoothly and your claim is portrayed in the best and most accurate light possible. Here are some general guidelines:
Once the deposition is over, you will get a written transcript and an opportunity to make any necessary corrections.
If your employer’s insurance company is disputing anything about your workers’ comp claim—including whether the injury is work-related, whether you should have treatment that your doctor has recommended, or whether you have a disability—you should strongly consider hiring an attorney to represent you.
If you’re called to a deposition, your lawyer will help you prepare for it. At the deposition itself, your lawyer will be there with you to make sure nothing improper goes on—to object to illegal questions, make sure things stay civil, ask questions to clear up anything confusing or misleading from the other attorney’s questions, and otherwise protect your interests.
Learn more about what a good workers’ comp lawyer should do for you.
]]>In order to be covered by workers’ comp, injuries don’t have to result from sudden accidents like falling off a ladder or losing a finger to equipment malfunction.
It’s just as common for employees to sustain injuries or occupational illnesses that develop over time. And some workers may acquire infectious diseases (such as COVID-19) as a result of on-the-job exposure.
Whether you’ve sustained a sudden injury or a cumulative trauma, if you want workers’ comp benefits, you must prove that the injury or illness was connected to work—in legal jargon, “AOE/COE” (arising out of employment and occurring during the course of employment).
According to the Occupational Safety and Health Administration (OSHA), an illness or injury is work-related if an event or exposure in the work environment caused or contributed to it.
While AOE/COE question can be straightforward when employees are hurt from an accident at the workplace, it gets trickier when it gets trickier when they were doing something job-related away from the office (learn more about what makes an injury or illness work-related) or when they develop injuries or illnesses over time.
Workers’ compensation generally covers illnesses or diseases that employees develop as a result of on-the-job exposure. Work-related illnesses can range from traditional occupational illnesses like black lung disease (from exposure to coal dust) and asbestosis (caused by exposure to asbestos) to the coronavirus/COVID-19 (more on that below).
It may be relatively easy to prove that work conditions caused traditional occupational diseases, where the medical link is well established and exposure away from work is rare.
Proving the work connection can be more difficult when the illness is considered an “ordinary disease of life”—a condition that many people develop throughout their lives from various causes.
That doesn’t mean it’s always impossible to get workers’ comp benefits for heart disease, high blood pressure, lung cancer, or other common illnesses (unless state law explicitly rules it out).
But employees will need strong medical evidence that workplace exposure caused or contributed to the illness.
Many states recognize that jobs like police officers and firefighters are inherently dangerous and deserve special workers’ comp protection. So when those employees develop certain illnesses (like heart attacks, hernias, and some kinds of cancer), the laws presume that their conditions are work-related.
Workers’ Compensation Benefits for COVID-19?
If you can’t work because you contracted COVID-19 or were exposed to the coronavirus on the job, you might be eligible for workers’ comp benefits—including temporary disability benefits while you’re in quarantine. Your eligibility will depend on state law and your specific circumstances. As a general rule, however, you would have to show that you were exposed while you were working and that your job presented a special risk of exposure, beyond the risk for the general public.
Healthcare providers and first responders are the most obvious examples of jobs with that kind of special risk. Several states have issued rules that will make it easier during the pandemic for these employees to qualify for workers' comp benefits without proving on-the-job exposure.
Learn more about getting workers’ comp benefits for COVID-19.
Repetitive strain or stress injuries (RSIs) are increasingly common and can be incredibly painful and debilitating. And they don’t only result from keyboarding or clicking a computer mouse all day. People in a wide range of jobs who perform the same physical tasks over and over—from factory workers and home health aides to coders and graphic designers—can develop RSIs including carpal tunnel syndrome, tendonitis, back pain, and more.
Workers’ comp typically covers work-related RSIs. But a few states have special restrictions on claims for cumulative trauma, or they may require employees to provide stronger evidence that the condition is related to work.
Just because you had a pre-existing condition, that doesn’t mean you can’t get workers’ comp benefits if another work-related injury aggravated that condition.
For instance, say you hurt your back while lifting a heavy object at work, but x-rays or scans show that you had arthritis or an old injury in the same part of your spine.
The new injury is probably covered by workers’ comp because it aggravated or “lit up” the pre-existing condition. Depending on where you live, however, some of your benefits—especially permanent partial disability benefits—may be reduced to the extent that you need them because of the old injury.
People who work in noisy environments—such as construction sites or manufacturing plants—often suffer hearing loss over time. Unless there’s another obvious reason for the condition, workers’ comp will usually cover hearing loss.
The medical profession increasingly recognizes the connection between long-term exposure to stress and a wide range of illnesses, both physical and psychological. Still, it may be difficult or impossible to get workers’ comp benefits for illnesses caused by on-the-job stress, depending on where you live, the nature of your illness, and the reason for the stress.
Some states don’t recognize claims for physical illnesses caused by emotional stress at work. In Louisiana, for instance, workers’ comp covers heart disease or injury only if it primarily resulted from physical stress or exertion that was extraordinary and unusual for the job (La. Stat. § 23:1021 (2022)).
Many states allow workers’ comp claims for post-traumatic stress disorder (PTSD) and other stress-related psychological conditions, but only if they were caused by a sudden, extraordinary traumatic event at work, such as when a convenience store clerk is held up at gunpoint or a teacher has to deal with a mass shooting at school.
Even in states that allow workers’ comp claims for emotional problems resulting from ongoing job stress, employees often have to provide stronger evidence to support these claims than they would for other types of injuries or illnesses. They may also have to show that workplace conditions played a bigger role than other factors.
In California, for instance, employees usually have to prove that working conditions were the "predominant" reason (meaning they were at least 51% responsible) for their psychiatric injuries (Cal. Labor Code § 3208.3 (2022)).
The rules are different—and generally more liberal—when employees develop emotional or mental conditions as a result of their work-related physical injuries. The pain, isolation, and life changes that come with serious physical injuries and disabilities often lead to sleep disorders, depression, and anxiety.
These conditions are generally considered a “compensable consequence” of the original work-related injury, meaning that the injured employee should be able to get treatment and other benefits.
From the standpoint of employees, workers’ comp is a no-fault system. It doesn’t matter if workers were careless when they were injured. There may be exceptions, however, such as self-inflicted injuries or injuries that happen because the workers were drunk or high, were committing a serious crime, or were violating company policy.
Even when employees’ own behavior played a role in developing an illness, it may be covered by workers’ comp if job conditions also contributed to the disease. In one case, a brewery worker claimed that his employer contributed to his alcoholism by giving employees as much free beer as they wanted to drink during their breaks.
Although alcoholism is an “ordinary disease of life,” and the employee didn’t have to drink as part of his job, the appellate court found that he was still entitled to workers’ comp benefits, because the “unique circumstances of the employment shaped the course of [his] disease.” (Gacioch v. Stroh Brewery Co., 466 N.W. 2d 302 (Mich. Ct. App. 1990).)
When employees die as a result of work injuries or illness, their eligible dependents are generally entitled to collect workers’ compensation death benefits. Usually, death benefits are limited to a spouse, children, and other family members who lived with and depended on the employee for financial support.
The rules for workers’ comp coverage of injuries and illness can be very complicated. They also differ considerably from state to state. If you suffered a cumulative trauma injury, occupational illness, or stress-related physical or emotional problem because of work, you could run into trouble getting the benefits you deserve without the help of an attorney.
An experienced workers’ comp lawyer can analyze your case, explain whether your injury or illness is likely to be covered, explain the time limits for filing claims in your state for cumulative trauma or occupational disease, and help develop the strong evidence needed to support a CT or stress-related claim.
Learn more about what a good workers’ comp lawyer should do.
]]>Each state has its own spin on these general rules, and the details can get complicated; for more information on the rules in your state, see the links in our state-specific articles on workers’ comp benefits.
Workers' comp pays for hospital and other medical expenses that are necessary to identify and treat a work-related injury or illness. Although the details vary in each state, medical benefits generally cover doctor visits, medication, and surgeries.
If you need equipment (such as a wheelchair or special vehicle) to help you deal with your injury, workers' comp will likely cover that cost as well. In some instances, workers' compensation will also cover services like counseling, pain therapy, and acupuncture.
State laws differ on whether you or your employer gets to choose your health care provider, and some states regulate how much the provider may charge for your treatment. (Learn more about seeking medical treatment for a work-related injury.)
Except for emergency care, you or your doctors may need to get advance authorization for medical treatment. For the most part, only generally acceptable medical practices will be covered. If you would like to use an experimental or investigative treatment or therapy, you may have trouble getting paid for those expenses, so you may want to get an attorney's help.
Rehabilitation benefits pay for medical and therapeutic care (such as physical therapy) necessary to help you cope with and recover from your injury or illness. They may also cover the care and training necessary for you to regain the skills and abilities you need to return to work.
If your injury or illness prevents you from returning to your former job, many states allow vocational rehabilitation or similar benefits that pay for evaluation, retraining, tuition, and other expenses associated with helping you become qualified to work at a different job.
Disability benefits are meant to compensate you for part of the wages you lose while your injury or illness makes it impossible for you to work. These benefits fall into one of four categories, depending on whether the disabilities are total or partial and temporary or permanent.
The amount of total disability benefits (whether temporary or permanent) are based on the amount you were earning prior to your injury—typically, two-thirds of your wages. (However, many states set a cap on the amount of the payments, and some states set a minimum.)
You generally don’t have to pay income taxes on workers’ comp benefits, so the amount may be closer to your usual wages than it first appears. Most states will require you to wait a period of time (usually a week) before you can start collecting temporary disability benefits.
When employees die as a result of their work-related injuries or illnesses, most states provide death benefits to some of their relatives (such as children and spouses) who were financially dependent on the deceased employees.
Although at least some funeral expenses are also covered, death benefits are primarily meant to compensate those dependent family members for the loss of financial support. Most states calculate this benefit as a percentage of the deceased worker's earnings. Some states have maximum and minimum amounts; others provide a lump sum.
Sometimes, the relationship between the dependent and the deceased worker can pose difficult legal issues. States have different rules for spouses (such as setting limits on their own earnings in order to qualify), stepchildren, children born outside of marriage, unmarried partners, and other relatives such as parents, siblings, and in-laws.
If you have any questions about your workers' comp benefit eligibility, or if your employer (or its insurance company) is disputing your right to benefits, you should consult with an attorney in your state who has experience dealing with workers' compensation issues. See Nolo's Lawyer Directory for a list of attorneys in your geographic area.
]]>The rules for workers' compensation claims differ from state to state. However, all states require that an injury be "work-related" (or otherwise tied to a job-related purpose) in order for an employee to receive workers' compensation benefits.
Generally, if you are injured at your place of work, your injury will be considered work-related (although there are exceptions to that rule). If you are in a car accident while driving or riding in a car for work-related reasons away from your workplace, and even if you primarily work from home or out of an office, you might also be covered by workers' compensation. The determination of whether or not an injury is sufficiently work-related for workers' compensation purposes is very fact-dependent.
The list of possibilities can't be captured here, but in general you might be considered "on the job" if you're involved in a car accident while:
Generally speaking, you are not able to collect workers' compensation benefits for a car accident that occurred while you were simply commuting to or from work. However, there are exceptions to this rule. For example, if you stopped while on the way to work to pick up supplies for the office, and then were involved in a car accident, you could be eligible for workers' compensation benefits.
Learn more about the kinds of injuries and illnesses that are covered by workers' compensation.
In addition to potential eligibility for workers' compensation benefits, if another driver caused your car accident, you may have the right to bring a personal injury claim against that driver, and get compensation for your medical bills and other losses stemming from your car accident injuries. That could mean filing a third-party insurance claim directly with the at-fault driver's insurance carrier, or filing a personal injury lawsuit. There are big differences between a personal injury claim and a workers' compensation claim.
First, a covered employee files a workers' compensation claim according to the procedures laid out under state law. Usually that means the employer files initial paperwork with the state agency, or the employee starts a claim with the state's workers compensation agency or appeals board. A personal injury lawsuit, on the other hand, is filed in the local branch of the state's civil court system.
Perhaps the most significant difference between a workers' compensation claim and a personal injury claim is the variety of damages that can be recovered. In a workers' compensation claim, you generally receive payments only for certain quantifiable losses (medical bills and lost income), usually up to certain maximums. You will not receive payment for pain and suffering in a workers' compensation claim, but those kinds of damages are always available in a personal injury lawsuit.
Note that when a car accident forms the basis for a claim, workers' compensation benefits do not include compensation for vehicle damage, but personal injury compensation does.
Another big difference between personal injury and workers' comp claims has to do with timing. Typically, if you are injured on the job, you must notify your employer "immediately," or at least within a certain number of days (30, 90, etc., depending on the state). You typically have a much larger window within which to file an actual workers' comp claim (usually one to three years). With a personal injury lawsuit, the only time limit comes from the statute of limitations filing deadline, which varies from state to state, but is never shorter than one year from the date of the underlying accident, and is usually two or three years.
A final big difference between a workers' compensation claim and a personal injury claim is "fault." When you bring a personal injury claim against the other driver, you must prove that the other driver caused the car accident. In a workers' compensation claim, you do not need to prove anyone else caused the crash. You can usually even collect workers' compensation benefits even if the car accident was your fault, as long as you were driving for a work-related purpose, and you weren't under the influence of drugs or alcohol.
The manner in which the workers' compensation system interacts with a personal injury claim can be very confusing. You do not typically have to choose between filing a workers' compensation claim and filing a personal injury claim. Even if you accept workers' compensation benefits from your employer, you still have the right to seek damages from the driver who caused the car accident.
However, if you receive workers' compensation benefits, your employer or its insurance company may have a "lien" against any compensation you receive from any third party. For example, if you receive $10,000 in workers' compensation benefits from your employer, and you later reach a car accident settlement agreement for $20,000 against the other driver, your employer may have a $10,000 lien on your settlement.
Especially if you've been seriously injured in a car accident, figuring out how to best proceed (via personal injury or workers' compensation) might be better left to a legal expert. But since claim filing deadlines can limit your options, it's important to discuss your situation with an attorney sooner rather than later. Learn more about how an attorney can help with your car accident case and when you need a workers' compensation lawyer.
]]>Unless your claim involves a simple issue, like a minor, medical-only dispute, you should seriously consider hiring a lawyer. Workers’ comp claims require a detailed understanding of legal and medical issues. You will have to review medical records, participate in depositions, and build your case for benefits. As workers’ comp laws have been reformed, this has become an increasingly complex process that involves multiple experts and a detailed medical analysis.
A workers’ comp lawyer will ensure that you and your claim are properly prepared for the hearing. A lawyer can also help you negotiate with the insurance company—potentially avoiding the need for a hearing at all. (See our lawyer directory for workers’ comp lawyers in your community.)
If you decide not to hire a lawyer, you will need to thoroughly prepare for the hearing. In particular, you will need to get copies of your medical records, unpaid medical bills, and other documents supporting your claim. In most states, you must participate in a “discovery” process with the insurance company. During discovery, you and the insurance company will exchange documents and information. You must follow your state’s rules about sharing and submitting evidence. If you do not follow these rules, you might be prohibited from presenting the evidence to the judge at your hearing.
You usually cannot win a workers’ comp appeal without fact-based evidence (such as medical records). The judge must follow specific rules when evaluating your claim. For example, you typically cannot get workers’ compensation without a formal medical diagnosis from a doctor. Your own testimony that you experience pain is insufficient. You must have medical records and diagnostic studies (such as an MRI, X-ray, or EMG) that support your claim.
In addition to your treating doctor’s medical records, the doctor can make formal recommendations about your claim. For example, you may submit a written report from your doctor summarizing your injuries, restrictions, and your ability to work. However, the insurance company usually has the right to question your doctor about his or her opinions.
Frequently, the insurance company will schedule you for an independent medical examination (IME) by a doctor of its own choosing. An IME doctor will review your medical records, perform an examination, and write a report summarizing his or her findings. While some IME doctors are truly independent and neutral, others consistently write reports supporting the insurance company. If the insurance company schedules an IME, you must attend the appointment. To learn more, read our article about attending an IME.
In a workers’ comp appeal, you can demand payment of your medical bills, wage loss, and other benefits. Before your hearing, you should organize your unpaid medical bills and calculate how much you need to pay them off. You should also calculate your lost wages and prepare paystubs and other evidence to support your claim. Finally, you should calculate how much you are owed in permanent disability benefits. (For help understanding how benefits are calculated in your state, see our state articles on workers’ comp benefits.) The judge will need this information in order to awards benefits.
In some states, you also must prove that your injuries reduce your ability to earn wages. This is often done by hiring a vocational expert to explain how your injuries have impacted your ability to find work and earn wages. A vocational expert will evaluate your education and work experience and identify jobs that you are able to perform. The expert will issue a report discussing these issues and may describe your post-injury earning potential. While some vocational experts are truly neutral, others tend to support whoever pays for the evaluation. For example, the insurance company’s expert will typically argue that you have little to no reduction in wage-earning capacity.
Expert witnesses and depositions are part of almost every workers’ compensation appeal. It is very difficult to win a workers’ comp claim without expert witnesses. These witnesses may include treating doctors, independent medical examiners, and vocational experts.
In a workers’ comp claim, most expert testimony is obtained at a deposition. A deposition is testimony taken under oath. Your lawyer (and the insurance company’s lawyer) will ask the expert questions while a court reporter transcribes (or types out) their questions and answers. For example, during the deposition of an IME doctor, the insurance company’s lawyer will question the doctor to elicit his or her opinions. Then, your lawyer will cross-examine the IME doctor and attempt to weaken or discredit the doctor’s opinions. At your hearing, the transcribed conversation is given to the judge as evidence.
In certain states, injured workers are also deposed. If your deposition is scheduled, you should be well-prepared. Make sure your answers are truthful and accurate—your transcribed testimony can be presented to the judge by the insurance company. If you have a workers’ comp lawyer, he or she will also be at your deposition and will guide you through the process. To learn more, see our article about preparing for your workers’ comp deposition.
Sometimes, you may want to present other witnesses at your workers’ comp hearing, including coworkers who witnessed your accident. Before your hearing, confirm that your witnesses are willing to testify and give them the time and date of your hearing. Your workers’ comp lawyer may also want to meet with these witnesses and help them prepare for their testimony.
Testifying at a hearing is different than having a casual conversation with someone. When you testify, you will be asked questions—and you must be prepared to answer them. You also must follow your state’s evidentiary rules. For example, you typically cannot testify about things other people told you because of the hearsay rule. Instead, you may only testify about things you saw, experienced, or said.
Before your hearing, organize your thoughts. You may want to write down a timeline of your claim, including:
It is important to provide accurate and honest information at your hearing. You should not exaggerate (or minimize) your injuries or physical limitations. If the workers’ comp judge questions your credibility, he or she may deny your claim.
On the day of your hearing, you should dress neatly and cleanly. A button up shirt and slacks are appropriate. You should also give yourself extra time to travel to the hearing location because it’s important that you arrive on time. For more information about the workers’ compensation hearing process, see our article on what to expect at a workers' comp hearing.
]]>In almost every U.S. state, the vast majority of employers must carry workers’ compensation insurance, either through a third party insurance carrier or through a self-insured program set up by the employer. In most states, employers must get workers’ comp insurance when they hire just one employee. In other states, employers only need to get insurance when they hire a few employees, usually between two and five.
But what can you do if your employer doesn’t have this insurance? Most states will allow employees in your situation to sue their employers in court, through a personal injury claim.
There are some advantages to filing a personal injury lawsuit as opposed to a workers’ comp claim. For one thing, you can seek the full amount of your losses (or “damages,” in legalese) without being subject to an arbitrary cap set by law. (Most states only pay around two-thirds of the worker's wage loss for temporary disability benefits, only up to an established maximum amount, and for only a limited period of time.)
Another benefit of a personal injury lawsuit is that you can collect money damages for the emotional distress caused by your injuries (called “pain and suffering” in legal jargon). You may also be able to collect "punitive damages," which are intended to punish the employer if its particularly bad misconduct caused your injuries. Neither of these types of awards is available through workers’ comp.
However, there are also drawbacks to suing in court. It can be a much slower process. While you might receive benefits through workers’ comp in a matter of weeks, it can be months or even years before you see any money through a lawsuit.
Also, unlike workers’ compensation—which is a no-fault system—you’ll need to prove that your employer was at fault for the personal injury accident. You should talk to a lawyer right away so that you can start the process and make sure your suit is filed in the proper legal timeframe.
There are a couple of other ways that you can seek compensation for your lost wages and medical treatment. Many states have special funds reserved for people who are injured while working for an uninsured employer (often called “Uninsured Employers’ Funds”). You may be able to get your medical bills covered by this fund or receive payments for a portion of your wage loss from the fund. Check with your state’s workers’ compensation office for more information on how to file a claim.
A few states also have temporary disability insurance programs, which may provide you with short-term benefits while you’re unable to work.
If you've been injured on the job and your employer doesn't carry workers' comp insurance, your first call should be to an experienced workers' comp or personal injury lawyer. A lawyer can help you get the financial settlement you deserve whether inside or outside the workers' comp system. Most attorneys offer a free consultation and charge no fee unless you win your case.
]]>Some jobs are inherently more likely to lead to severe anxiety, but even jobs that don’t require exposure to traumatic events can result in mental or emotional injury.
While all mental health issues deserve to be taken seriously, not all are covered by workers’ compensation laws. Here's what you need to know about whether you can collect workers' comp benefits for a mental health condition.
Workers’ compensation laws governing psychological conditions vary from state to state. The majority of states offer limited coverage for mental health conditions under specific circumstances, such as when the psychological injury arises out of a work-related physical injury, or is caused by a stressor that is extraordinary or unusual in nature. An increasing number of states are also implementing or considering laws that provide workers’ comp coverage for PTSD claims by first responders.
Even if you are entitled to mental health coverage under your state’s law, obtaining workers’ comp benefits can be an uphill battle. Employers and insurers are often reluctant to compensate workers for psychological conditions because it can be hard to objectively measure these conditions or prove that they were caused by your job.
As a general rule, you’re more likely to recover workers’ comp benefits for mental health conditions in the following circumstances:
Your odds of recovering workers’ comp benefits are higher if your psychological condition stems from a work-related physical injury. For example, if you sustain a back injury while on the job, and suffer a depressive disorder as a result, you’ll likely be entitled to compensation for psychological injuries as well as for the original physical injury.
Many states don’t allow any workers’ comp recovery for mental health conditions unless they are tied to a physical injury. Even in states without such a law, it can be much easier to prove that mental health issues are work-related when they were caused by an on-the-job physical injury.
In an era of mass shootings, more and more states are instituting laws designed to protect the mental well-being of the firefighters, police officers, paramedics and other first responders who have to witness traumatic events as part of their job. At least a dozen states currently have laws allowing workers’ comp coverage for PTSD claims by first responders, and many more states are considering passing such laws. These laws allow benefits for purely psychological injuries that aren’t tied to any physical injury.
Some states, including Connecticut and New Mexico, have laws that apply only to certain types of first responders. Other states, such as Florida, allow recovery only when the first responders have witnessed a particularly horrific event. And a number of states have created a “rebuttable presumption” that a first responder’s mental health issues are an occupational injury, which means that workers don’t need to prove that their job caused their mental health issues. However, a workers’ comp insurer can still contest that assumption by demonstrating that there is a non-work-related cause for an employee’s psychological injury.
Some states provide workers’ comp benefits for employees who have suffered purely psychological injuries like PTSD, even if they’re not first responders.
In most of these states, however, the psychological injury must be the result of an extraordinary and unusual event or stressor. For example, in Colorado, mental health issues are compensable only if they are caused by a psychologically traumatic event that is generally outside of a worker’s usual experience. And in New York, workers can recover benefits for psychological injuries only if the injuries arise from abnormal stress and unprotected employer actions.
There are a few states that don’t impose this requirement. In California, for example, any employee may recover workers’ comp benefits for a purely psychological injury even if it wasn’t caused by an unusual, traumatic event, as long as the employee meets other requirements, such as being diagnosed with a mental disorder and proving that working conditions were at least 51% responsible for the disorder.
Just because you don’t qualify for workers’ comp benefits for a mental health issue doesn’t mean you have no legal remedies. There are other laws that may help provide the time and resources you need to recover.
You may be able to receive unpaid leave and job protection under the Family and Medical Leave Act (FMLA). If you meet the definition of “disability” under the Americans with Disabilities Act (ADA), you are entitled to accommodations from your employer so you can do your job despite your disability. And if you have a severe mental impairment that prevents you from going back to work, you may be entitled to Social Security disability benefits.
Because workers’ comp claims are often contested, they can be lengthy and complex. This is especially true for cases involving psychological injuries, as they are less straightforward than on-the-job physical injuries.
A workers’ comp lawyer can help you evaluate your claim, navigate the various stages of the process, and recover the benefits to which you're entitled. Most workers' comp attorneys charge a fee only if you win your case, and don't require any money up-front.
]]>Unlike a personal injury lawsuit, in which you generally have to prove that another person is at fault for causing your injury, workers’ comp is a “no-fault” system. This means that you can generally recover workers’ comp benefits even if you were at fault for causing your own injury, as long as your injury happened while you were working. For example, if you were in a hurry at work and disregarded a “wet floor” sign, then slipped and injured yourself, you’d probably still be able to recover workers’ comp benefits.
To receive workers’ comp benefits for a slip-and-fall injury, you need to report your injury to your employer, file a claim, and, if your claim is denied, appeal the insurance company's decision.
Workers’ comp laws vary from state to state, but in nearly all states, the first step in a workers’ comp claim is reporting your injury to your employer. Most states require that you do so within 30 days, and in some states, the reporting period is as short as three or four days.
While some slip-and-fall injuries are immediately apparent, others (such as head or soft tissue injuries) take a while to show symptoms, so it’s a good idea to report a fall even if you think you’re fine. A workers’ comp insurer is also less likely to be skeptical of your claim if you report your injury promptly. The report should include as many details as possible about what caused the fall, the body parts that were impacted, and any pain or dizziness you feel.
In addition to reporting your injury to your employer, most states also require you to file a claim with your state workers' comp agency. Your employer typically can provide you with the forms to file your claim. Your employer is responsible for filing the claim in some states.
How long do you have to file your claim? In many states, the deadline is 12 months. But in some states, the deadline is much shorter. Check the website of your state's workers' comp agency for more details.
The insurance company conducts an investigation to determine whether to approve your claim. If your claim is approved, you'll start to receive benefits. If your claim is denied, you have the right to appeal.
Appealing a workers' comp decision can be complicated and time-consuming. It often involves several proceedings, a settlement conference or mediation, and an independent medical examination. If these efforts to resolve the claim are unsuccessful, the case will be set for a formal workers’ compensation hearing.
In slip-and-fall cases, approximately 38% of employees who ultimately recover workers’ comp benefits initially had their claims denied, according to a Martindale-Nolo survey. After the initial denial, 45% had to file an appeal or request a workers' comp hearing before they received a settlement or award.
A common reason given for denial of a slip-and-fall claim is a worker’s preexisting condition. Insurance companies often blame back and neck injuries on the effects of aging, rather than on the workplace accident.
Because almost half of all successful workers’ comp slip-and-fall claims require an appeal, an experienced lawyer can make a big difference in whether you receive a settlement or award, as well as how much compensation you receive. A workers’ comp lawyer can prepare a legal analysis of your claim, negotiate for you at your settlement conference, represent you at your hearings, and make sure to comply with your state’s procedural rules and deadlines.
Hiring a workers' comp lawyer won't cost you anything out of pocket. In most states, workers' comp attorneys work on a “contingency” basis, meaning they charge a percentage of your benefits if you win your case, and nothing if you lose.
]]>Workers’ compensation covers injuries and illnesses that are within the “course and scope of your employment.” Most courts have interpreted this phrase broadly and erred on the side of covering injuries, to the benefit of employees making claims for benefits. In general, if you were engaged in an activity that benefits your employer, your injury will be covered.
If you are injured at your workplace while performing work duties, you will receive workers’ comp. For example, a dishwasher who slips and falls while working in a restaurant kitchen would be covered. .Injuries caused by repetitive work activities are also within the course and scope of employment. For example, if constant gripping and grasping at work causes carpal tunnel syndrome, you are eligible for workers’ comp. (To learn more, see our article on repetitive stress injuries in workers’ comp.)
If you are taking a break in your company’s break room or cafeteria, your injuries might still be covered by workers’ comp. In many states, it is considered a benefit to the employer when workers stay onsite for meal or rest breaks—because it saves time and because the employee remains accessible to the employer.
If you leave your workplace, you typically will not be eligible for benefits if you are hurt during your break, unless you are furthering your employer’s interests. For example, your injury will likely be covered if you were picking up boxed lunches for a meeting or you were having an off-site business meeting during lunch.
Most states cover injuries that occur at the workplace, even if you have clocked out for the day. This generally includes injuries that happen in a parking lot that is owned or controlled by your employer on your way to and from the building for work. However, once you’re done with work and leave the company’s premises, any injuries that happen are not covered.
If you are injured while you’re away from the workplace, your injury will be covered only if you were performing activities that benefited your employer. For example, courts have found injuries to fall within the course and scope of employment when they happen:
Every state has different rules for what qualifies as within the course and scope of employment. If you need help determining your eligibility for workers’ comp benefits, contact an experienced workers’ comp lawyer.
While every state has different workers’ compensation laws, there are some common situations where injuries are considered to fall outside the course and scope of employment. If any of these scenarios applies to you, contact a workers’ comp lawyer to find out more about your state’s workers’ comp laws and your eligibility for benefits.
If you are injured while commuting to and from work, the “coming and going rule” typically applies. Under this rule, travel to and from your fixed work site is not considered within the scope of your employment. For example, if you are hit by a car during your regular morning commute to the office, your injury will not be covered by workers’ comp.
On the other hand, your injuries will probably be covered by workers’ comp if you drive a company car, if you don’t have a fixed work site, or if you were running a work errand. For example, a traveling salesperson may receive workers’ compensation benefits if the salesperson was injured while driving from home to the first client meeting of the day. Likewise, an executive assistant who is injured while picking up the company president’s dry cleaning on the way into work would likely be covered.
Most workplaces offer team building and recreational opportunities for their workers. Depending on the circumstances, injuries at a social event—such as a company picnic, holiday party, or happy hour—might not be covered by workers’ comp. Certain factors make it more likely that the injury will be covered, including the following:
However, if an event is clearly voluntary and for the employee’s benefit only, the injury will usually not be covered by workers’ comp. Whether or not a claim is covered by workers’ comp is a very fact-specific inquiry. Do not assume that your injury isn’t covered by workers’ comp just because it happened at a company social event. (To learn more, see our article on company-sponsored events and workers’ comp.)
Most, if not all, state workers’ comp laws specifically exclude injuries caused by the worker’s own intoxication. For example, if you fall from a ladder because you’ve been drinking, your claim will probably be denied. If you have evidence that the accident was unavoidable or not your fault, you may still be eligible for benefits. For example, if you were working on a factory line, and another worker strikes you from behind with a lift truck, you may be eligible for benefits even if you were under the influence.
Some states—including Florida, North Carolina, Ohio, and Texas—assume that an injury is non-occupational if drug testing shows high levels of alcohol or drugs. However, intoxication defenses can still be difficult for employers to prove. If your drug and alcohol test was significantly delayed, it may not prove you were intoxicated at the time of the accident. (For example, a mildly positive marijuana test taken two days after an accident may be insufficient evidence.)
Intoxication-related injuries involve a detailed factual and legal analysis. Do not assume that you are ineligible for workers’ comp simply because you failed a drug test. An experienced workers’ comp lawyer may be able to prove that your injuries were within the course and scope of your employment.
Because horseplay and practical jokes are considered to fall outside of the scope of employment, related injuries are typically not covered by workers’ compensation. However, there are exceptions to this rule. For example, if your employer tolerated ongoing horseplay, your injuries may be covered. Likewise, if you were an innocent bystander, you will probably also still be eligible for benefits.
Similarly, most injuries caused by workplace fights or altercations are not covered by workers’ compensation. However, if the fight is over a work-related issue, you might still be eligible for benefits. For example, if you get into a fight with a coworker about your favorite sports team, it’s probably not a covered injury. But, if your coworker hits you after you complain about his or her poor job performance, you may be eligible for benefits.
Every state has different workers’ comp rules and exceptions (and exceptions to the exceptions). If your employer or its insurance company argues that your injury is not covered, you should contact an experienced workers’ compensation lawyer. A lawyer can evaluate your claim and tell you how likely you are to succeed on an appeal.
]]>In Florida, most employers must have workers’ compensation coverage—either by purchasing a workers’ comp policy from a private insurance company or by receiving certification from the state to self-insure. The Florida Division of Workers’ Compensation (DWC) oversees all workers’ comp claims in the state.
Like all other states, Florida has a no-fault workers’ compensation system. You do not need to show that your employer acted carelessly in order to receive benefits. As long as your injury happened on the job or was caused by your work activities, you will typically be eligible for benefits.
Eligible workers may receive a variety of benefits, including:
To learn more, see our Workers' Compensation Benefits page.
Notifying your employer is the first step to starting a workers’ compensation claim. In Florida, you must report most injuries within 30 days. If a condition or illness develops over time, you must notify your employer within 30 days of discovering its relationship to your work. You may lose some or all of your benefits if you do not notify your employer within these deadlines.
When you notify your employer, provide as much detail as possible, including:
Once you report an injury, your employer should send you to an occupational doctor. In Florida, your employer gets to choose your treating doctor unless you need emergency treatment. It is important to provide the doctor with accurate information about the cause of your injuries and the severity of your symptoms.
Once you notify your employer, it must report your claim to its insurance company within seven days. If it refuses to report your injury, you can contact the insurance company directly. The insurance company will then determine your eligibility for benefits. Its investigation may involve:
Under Florida law, the insurance company must either promptly approve or deny your workers’ compensation benefits. If your claim is approved, you will start receiving disability payments and other benefits. Unfortunately, insurance companies deny many workers’ compensation claims.
You do not need to file any paperwork with the DWC unless the insurance company denies your claim. To appeal a denied claim, you typically must file a Petition for Benefits within two years of your injury or one year of your last wage loss or medical payment, whichever is later.
Unless your claim is very simple, you should consider hiring a workers’ compensation lawyer to handle your appeal. The insurance company will have a lawyer, and you may be at a disadvantage if you proceed without an attorney. To learn more, see Should I Hire a Workers' Comp Attorney or Can I Handle My Own Case?
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