ExpertLaw - Your Source for Legal Information



Worker's Compensation - Know Your Rights

Contents

Worker's Compensation, sometimes referred to as "Workman's Compensation" or "Worker's Comp", is the name given to a system of laws meant to protect injured workers. The goal is to make sure that somebody who is injured at work receives appropriate medical care, lost wages relating to the on-the-job injury, and, if necessary, retraining and rehabilitation, so as to be able to return to the workforce. When workers are killed on the job, members of the workers' families are ordinarily eligible for benefits.

Frequently, injured workers will benefit from consulting an attorney who can advise them in protecting their Worker's Compensation benefits and defending against the premature termination of benefits. If you wish to hire a Worker's Compensation lawyer, you may find this article on "How To Hire A Personal Injury Lawyer" to be helpful. You may also benefit from reviewing an overview of Worker's Compensation benefits for your state.

Exclusions From Coverage

Depending upon the jurisdiction, employees may be restricted from collecting benefits if their injuries or deaths result from willful misconduct or from intoxication.

Special Federal Statutes

There are some special federal laws which provide additional protection to certain classes of worker:

  • The Jones Act (The Merchant Marine Act) provides seamen with the ability to seek benefits known as "maintenance and cure" when they are injured as a result of their employer's negligence while working on U.S.-flagged vessels.

  • The Federal Employment Liability Act (FELA) makes railroads engaged in interstate commerce liabile to employees, where the employees' injuries result from the railroad's negligence.

  • The Longshore and Harbor Worker's Compensation Act (LHWCA) provides Worker's Compensation benefits to certain classes of employees of private maritime employers.

  • The Black Lung Benefits Act provides compensation to miners suffering from "black lung" disease (pneumoconiosis).

There is a possibility of the creation of a new federal compensation scheme for workers injured by asbestos, who may suffer from asbestosis or mesothelioma as a result of asbestos exposure. At present, asbestos-related injuries are typically handled by private attorneys.

Worker's Compensation Litigation

While most injured workers recover quickly, and beyond making the initial injury report to qualify for benefits have no real awareness of the Worker's Compensation system, those more seriously injured may have difficulty with their employer or with the compensation system. Those workers may benefit from consulting with lawyers. Worker's Compensation litigation is generally considered to be simpler than traditional injury litigation, as it takes place in an administrative setting and may involve relaxed evidentiary rules. Attorney fees are ordinarily limited by statute.

Workers typically need to hire a workers comp lawyer when they are refused benefits to which they are entitled, are told that they can return to work before they are actually medically able, or are denied extended or permanent disability despite significant disabling injury. If your employer sends you to a doctor who declares that you are able to return to work even though you don't believe you are yet able, or tries to get you to return to work to a special job created to accommodate your injury, you should consider speaking to a comp lawyer right away.

The reason is this: while a typical injured employee does not know the law, a typical employer is very much aware of how the compensation system works, and how to terminate an employee's benefits. An injured worker who returns to work in a specially created position may well find that, two weeks later, the position is eliminated and he is laid off - but is no longer eligible for workers comp. Similarly, many employers utilize doctors who are much more interested in maintaining a good continuing relationship with the employer than with accurately diagnosing the employee - too many declarations of continuing disability will likely cause the employer to send injured employees to a different doctor. A lawyer can help you protect your rights when one of these "hired gun" doctors tries to block you from getting necessary treatment, cut off your benefits or send you back to work too early.

It is beneficial to go to a lawyer who handles a lot of Worker's Compensation cases. Typically, those lawyers will know the administrative judges or hearing officers who preside over comp hearings, and may also know the doctors and defense lawyers who are trying to block your claim. Using an attorney who knows the ins and outs of the system can help ensure that you collect the benefits that are due or, if you are so inclined, get a maximum pay-off to settle your compensation claim.

When Can You Sue?

Ordinarily an employee who qualifies for Worker's Compensation benefits may not file a personal injury suit against the employer. There are two narrow exceptions where Worker's Compensation preemption might not apply, and an employer might be subject to lawsuit:

  • When an employer intentionally causes injury to an employee.

  • When an employer is required to carry Worker's Compensation coverage but fails to do so.

This exception for intentional acts is very narrow. It is not ordinarily enough that an employer creates conditions where there is a very high probability that an employee will be injured. Ordinarily the employer must have committed a specific act intended to cause injury to the employee.