TEN BASIC RULES FOR PEOPLE INJURED AT WORK

If you are injured at work you must report it as soon as possible to your supervisor. Be specific when describing the injury, and state clearly that it happened at work. Even if you report it late, the employer must turn it in to their workers’ compensation carrier. Get a copy of the incident report.

You have the right to see a doctor immediately when you are injured.  In an emergency you can go to any doctor, in other injuries, the employer/workers’ compensation insurance carrier may have the right to send you to a doctor in a managed care network, such as Occupational Physician Services or Baptist Worx. 

Describe exactly how the injury occurred to every doctor or emergency room attendant, and where you were working when it happened.  Explain why you are there and what your immediate problems are.  The doctor may ask about prior injuries or problems, but clearly you were working before your injury.  Get off-work slips, prescriptions and referrals to specialists.  Keep copies. 

Find out your employer’s workers’ compensation carrier and make sure that they were given information about your injury.  Give your medical bills to your employer’s workers’ compensation carrier and do not claim under your medical insurance or S&A benefits. 

Two-thirds of your average weekly wage is paid seven days after your first day off work.  If you are off more than fourteen days, your temporary disability is paid back to the first day off. 

A formal claim must be filed or settled within two years of the date of injury or two years from the date of the last workers’ compensation insurance payment for temporary disability (not medical payment).  If a claim is not filed or settled within two years, you will lose all rights to benefits for that injury, including medical treatment.

If there has been a safety violation committed by the employer, benefits can be increased by 30%.  If the employee caused the injury by disregarding a safety regulation, their workers’ compensation benefits could be reduced by 15%.

If you have a surgery or are told by your doctor that you will never be able to return to your job, call a lawyer experienced in workers’ compensation.

If the injury is caused by the actions of a third party who is not working for the same employer, there could be a separate civil suit for pain and suffering.  In construction injuries, an injury caused by a fellow subcontractor or a “down-the-ladder” contractor may give rise to a civil suit. 

In very serious injuries, especially ones that cause you to lose your job, you will need a lawyer for workers’ compensation and Social Security Disability, long term disability benefits or a third-party lawsuit.  People who try to “go it alone” are at a disadvantage when negotiating with an insurance company.  The insurance company has its lawyers, and they are not responsible for looking out for your interests.

Third Party Claims for Injuries on the Job

Workers compensation benefits, including medical treatment, temporary total disability payments, and compensation for permanent disability, are usually the only recovery that a person injured at work can obtain under the law. This is called the exclusive remedy provision of the Worker’s Compensation law, and it applies not only to the immediate employer of an injured worker, but also to co-employees and to any general contractor who would be liable for Worker’s Compensation if the injured party’s immediate employer was not insured for Worker’s Compensation.  Worker’s Compensation coverage does not depend upon the employer being negligent, but is provided for on the job injuries regardless of fault.  But, recovery is limited to two-thirds of a workers’ average weekly wage while he is off from work, medical expenses, and compensation for permanent impairment based on a calculation contained in the Workers’ Compensation Act.
There are some situations, however, where an injury on the job can result in other legal causes of action.  The most common example of this is when an employee, while traveling for his work, is injured in a car accident because of the negligence of a third-party.  In this situation the employee has both a Worker’s Compensation claim, which will initially pay his medical bills and two-thirds of his average wage while he is off from work, and a negligence claim against a third-party, which may be liable for pain and suffering, the totality of lost wages, and for medical bills and the permanent loss of ability to earn an income.  There are also more complex workplace accident situations which may give rise to both a Worker’s Compensation claim and a personal injury claim. In a construction site accident, for example, if the negligent party is not an employee of the injured Workers employer, or an “up the ladder” employer or general contractor, the injured party may bring a lawsuit for negligence against the person or company who caused the accident.  Or, if a subcontractor installing new machinery in a factory leaves an opening uncovered on a workplace floor resulting in a fall by an employee working in the plant, the subcontractor may be liable for damages even though the worker is covered by workers’ compensation provided by his employer.  Tools or equipment rented from a third-party supplier may cause injury if the supplier fails to maintain them properly.  If a defectively designed piece of machinery causes injury, the manufacturer of the machine can be held liable to the worker under a products liability cause of action.
A third party negligence claim will have very different rules than a workers’ compensation claim, even though it arises out of the same incident.  The statute of limitations for injury under common law negligence theories of recovery in many cases is only one year, and it is necessary to prove fault on the part of the negligent party.  However, recovery is for the full amount of lost wages, both present and future, medical expenses, and payment for the injured worker’s pain and suffering.   The workers’ compensation insurance carrier will also have a right to recover part of its payments from the negligent third party, and the rules which limit that recovery are complex.  Therefore, it is very important to consult with an attorney about the workplace injury soon after it happens in order to see if there is a third-party action which may be pursued.  This is important to fully investigate and obtain information about the injury, before information is lost or witnesses change jobs and cannot be found.

Injuries on the Way to Work

In some situations an injury that happens while going to work may be covered by workers’ compensation.  Normally, if an employee drives to work and has an accident on the way there, the injury is not covered by an employer’s workers compensation insurance.  But, there may be other coverage like no-fault car insurance.  There are exceptions to the so-called “going and coming” rule.  If an employer owns or controls the parking lot where an employee trips and falls, there is an operating premises rule that allows workers compensation coverage.  However, a recent Supreme Court case held that where an employee of a store in a shopping center was walking into work from he parking lot when she fell and was injured, her employer’s workers’ compensation insurance did not cover the injury because her employer did not own or control the parking lot.  If the employee is traveling on an errand for the employer, or is traveling from one job task to another, without a substantial deviation, the injury should be covered under workers compensation.  In situations where an employee takes an employer vehicle home, accidents traveling to an from the employee’s home are covered if the arrangement is for the employer’s benefit, such as a work truck being taken home so that the employee can drive to a distant job site.  A recent Supreme Court case held that an employee who traveled to Saratoga on behalf of his employer to act as a groom during horse sales was covered by the employer’s workers’ compensation when he was injured while traveling back to Kentucky, even though he had not come back to Kentucky with his employer.  Another exception, the traveling employee doctrine, holds that when a person’s work requires traveling for work such as a salesman or a truck driver, he is covered during his entire trip unless there was a substantial deviation from the trip’s purpose. Even if a trip has both a personal and a work-related purpose, an injury occurring while on the trip  may still be covered if the main purpose of the trip is for work.  The trip is personal under the test if it would have been made without regard to the business purpose and would have been dropped in the event of the failure of the private purpose. The trip is work-related if it would have been made regardless of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.  Facts and circumstances in every situation can determine whether the trip is covered by workers’ compensation or not, and you should consult a lawyer to determine if workers’ compensation is an option you can pursue if you have had an injury while traveling to or from work.

Employee or Contractor?

Many people who work for cash without getting an actual paycheck – with taxes withheld and deductions for insurance and retirement – may not be covered by workers’ compensation if they are hurt on the job.

If you work for yourself, hiring yourself out by the job, and supplying your own tools, you are probably an independent contractor. Plumbers and home improvement contractors who bid their work to homeowners are examples of this, and an independent contractor is responsible for providing his own workers compensation insurance or going without it if he works for himself. However, if a person works in the same business as his employer, his employer supplies tools and materials, and instructs him where to be, at what time, and how to do a job, he is probably an employee, regardless of whether he gets a regular paycheck or is paid in cash.

Employees are covered by workers’ compensation law, even though their employer may not have workers’ compensation insurance. For serious injuries that may costs thousands of dollars for medical treatment, and months or even years off from work, a workers’ compensation claim can be brought against the employer for permanent disability, lost wages, and the costs of medical treatment. Insurance coverage can sometimes be found through an “up-the-ladder” general contractor on a job, or by bringing a workers’ compensation claim against the Uninsured Employers’ Fund, a branch of state government, for payment of the employer’s liability. You should discuss your case with an experienced workers’ compensation lawyer if you have been disabled by a workplace injury, even if you have been told that there is no insurance coverage.