Workers Compensation - Know Your Rights

Workers compensation, sometimes referred to as "workman's compensation" or "worker's comp", is the name given to a system of laws intended to protect injured workers.

The goal of the workers compensation system 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. You may also benefit from reviewing an overview of worker's compensation benefits for your state.


Exclusions From Coverage

Depending upon the state in which an injury occurs, employees may be restricted from collecting benefits if their injuries or deaths result from willful misconduct or from intoxication. Worker's compensation may provide some additional compensation for certain severe or permanent injuries or disfigurement, it otherwise does not provide any benefit for an employee's pain and suffering.

Special Federal Statutes

There are some special federal laws that 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 liable 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.

Workers 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 workers 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,

  • Workers compensation cases are heard 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 compensation or benefits to which they are entitled,
  • They are told that they can return to work before they are actually medically able, or
  • They 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.

Many employers direct injured workers to doctors who are much more interested in maintaining a good continuing relationship with the employer than with accurately diagnosing the employee - If a doctor makes too many declarations of continuing disability, the employer may decide 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.

If you seek legal help, 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 Your Employer

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.

The 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.

Personal Injury Claims

In some cases it may be possible to sue a third party for an injury that occurs at work. In this context, a third party means somebody other than the employer or a co-worker, who can be sued for causing the injury and for pain and suffering damages resulting from the injury, and for other losses not covered by workers' compensation.

For example, an injury may be caused by a person who is not a co-worker, such as a delivery person who is delivering items to the employee's workplace or the driver of another vehicle while the employee is making deliveries.

Also, sometimes a third party will be liable for injuries that occur in the workplace, such as an injury caused by a dangerous or defective machine.

When it is possible to sue a third party for an on-the-job injury, the workers' compensation insurer may seek to recover some of its costs from the eventual settlement or recovery of that lawsuit. The insurance company may make a formal claim, or lien, against the lawsuit so that its claim must be addressed before money is distributed at the end of the case. The personal injury lawyer who handles the third party claim should handle issues relating to the lien, and how to minimize the impact of any lien on any eventual recovery.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.