If you were injured at work, you are most likely eligible for worker’s compensation. Worker’s compensation is provided through the U.S. Department of Labor. The exact benefits you receive vary based on the extent of the injury. In most cases, the program covers any medical expenses as a result of the injury, wage replacement for the time you are unable to work and the costs of any rehabilitation programs. You can also apply for other benefits, such as the cost of therapy if your sessions relate to the incident, or purchasing special equipment so you can return to work after an injury.
While there are many benefits available through the program, many employees are either uncomfortable applying for benefits, or do not understand the process. Unfortunately, some employers also refuse to take responsibility and challenge worker’s comp claims. Whether you need legal advice on how to file a claim, or your claim is being appealed, you can receive assistance from an attorney.
Personal Injury vs. Worker’s Comp
In order to take legal action, it is important you consult the correct attorney. In many cases involving injury, you hire a personal injury lawyer to represent you. Some personal injury incidents occur at work, but these are separate from worker’s comp incidents. The primary difference between the two is with personal injury cases, another party must be at fault. There are two types of personal injury cases relating to work, direct and indirect. An employee injuring you with a piece of equipment is a direct injury. If you are injured because of unsafe working conditions, such as tripping on a broken staircase, your employer is still responsible for failing to maintain the property.
In order to win this case, you must prove the other party is at fault. With direct cases, this typically involves gathering witness testimony or video evidence showing the incident. Indirect cases are more challenging, typically requiring an investigation to assess whether the employer failed to meet proper safety standards. If you are found at fault, you are not entitled to any benefits.
With worker’s comp cases, no other party needs to be at fault. In most situations, you can even claim worker’s comp if you were the only one responsible for your injury. The only time you are denied if you are at fault for the injury is if it occurred because you were engaged in illegal activity, such as working under the influence. You are also denied if your employer proves you deliberately hurt yourself solely to get worker’s comp.
Choosing Between Personal Injury or Worker’s Comp
Whether you can claim both worker’s comp and sue for personal injury depends on how you were hurt, where you work and state laws. Most attorneys recommend you pick one or the other. Both personal injury cases and worker’s comp cover medical expenses and lost wage, but personal injury cases also allow you to claim pain and suffering damage. This represents abstract claims that do not have direct physical value, such as your reputation at work being damaged because of the accident.
Because you are required to prove the other party was at fault, winning a personal injury case is harder than claiming worker’s comp. Typically, it also takes longer to resolve a personal injury case. Personal injury lawyers are also more expensive on average than worker’s comp attorneys.
In some states, you are able to claim benefits from a personal injury lawsuit and worker’s comp, but only if the payment does not overlap. For example, you cannot receive medical payments from both the personal injury case and worker’s comp. Typically, if you sue for personal injury, you use the settlement money to reimburse worker’s comp, only keeping payments relating to pain and suffering.
Filing for Worker’s Comp
If you get hurt at work, the first step is to report the incident. You want to report the incident as soon as possible. The moment you report the injury, you create a paper trail, which acts as evidence if your employer tries to deny your claim. Many employees are worried about reporting an injury because they do not want to upset their employer. You cannot legally get in trouble for reporting an injury at work. If you delay reporting the case, your employer can use the hesitation to argue the injury is not as bad as you claim, or even insist the injury occurred outside of work. In most states, you have a period of 30 days to file a claim for worker’s comp. If the injury involves an occupational disease, the window is commonly increased to 90 days.
Once the incident is reported, the next step is seeing a doctor. If you are a federal employee, you may have to see an approved physician, otherwise, you can choose your doctor. When you see your doctor, be upfront about the injury. If you suffered any recent injuries outside of work or have an existing medical condition, you cannot include those damages in your claim. The worker’s comp office or your employer can request you see a second doctor, if they have doubts about the legitimacy of what the first doctor reports. Your attorney can counter this appeal, if necessary, but it often supports your case if you get an additional doctor, since that provides more evidence of your injury.
Next, you must file an official claim. This process involves completing several forms and presenting evidence to show the extent of your injury. Having a worker’s comp attorney greatly speeds up this process and ensures you are receiving the most compensation possible. If you are not happy with the results of the claim, your attorney can file for an appeal. If you are still unsatisfied after going before a review board, your attorney can challenge the claim before a judge.
Finding an Attorney
Worker’s comp attorneys typically receive a percentage of your settlement, ranging from 15 to 25 percent on average. If your claim is denied, you do not have to pay anything, giving the attorney even more incentive to win your case. Personal injury lawyers may also ask for a percentage of your settlement, while others charge by the hour, on average between $100 and $500.
The American Bar Association has a database to search for eligible attorneys in your state. The government also provides a database to help lower-income find an affordable attorney, including firms and organizations that take pro bono cases.