H. Workers' Compensation

Each state has enacted its own particular laws with respect to workers' compensation benefits, which provide aid for employees who suffer job-related injuries. Compensation may be available for the following kinds of injuries:

• Preexisting conditions that the workplace accelerates or aggravates, such as a bad back, even if pain from the injury is delayed until a later time.
• Injuries caused during breaks, lunch hours, and work-sponsored recreational activities (such as a company-paid New Year's Eve party), and on-the-job injuries caused by company facilities, such as a shower located on premises.
• Diseases such as lung cancer, if contracted by asbestos or other carcinogenic exposure at work as a result of the usual conditions to which the worker was exposed by his/her employment.
• Injuries resulting from mental and physical strain brought on by increased work duties or the stress caused by a requirement that the employee make decisions on other employee dismissals. In some states, this includes.findlaw employees who develop a disabling mental condition because they cannot keep up with the demands of the job and a supervisor's constant harassment.

In all states, employers with more than several workers are obligated to maintain workers' compensation insurance through a company or be self-insured for the benefit of their employees (not independent contractors). The advantage to employers is that they cannot be sued in court for injuries sustained by workers during the course of employment even if an accident was caused by an employer's fault (negligence). Lawyers representing injured workers typically prefer that their clients not receive workers' compensation benefits because the potential of being awarded money for damages in a personal injury lawsuit is vastly greater.

Not every on-the-job injury is covered under workers' compensation. State courts seem to be divided on whether an injured employee can recover for horseplay. Many states will not award benefits to a person who is injured while intoxicated or who deliberately inflicts injury on herself. Furthermore, an employee who is injured while traveling to or from work is not generally entitled to benefits unless the employer has agreed to provide the worker with the means of transportation, pay the employee's cost of commuting, or if travel is required while performing his/her duties. For example, if the employee regularly dictates office memos into a dictating machine within a vehicle, the car may be deemed part of his/her workplace.

If a worker leaves the employer's premises to do a personal errand, no compensation should be due. However, if an employee is injured while returning from company-sponsored education classes, when an employee goes to the restroom, visits the cafeteria, has a coffee break, or steps out of a nonsmoking office to smoke a cigarette, workers' comp boards and courts typically recognize that employers benefit from these "nonbusiness" employee conveniences and often award compensation.

Always alert your employer immediately if you are injured on the job. Under compensation laws in most states, each employer must promptly provide medical, surgical, optometric, or other treatment for injured employees as well as provide hospital care, crutches, eyeglasses, and other appliances necessary to repair, relieve, or support a part of the body. Your company's medical team may eliminate unnecessary treatment, but an injured employee may select her own physician for authorized treatment, provided that physician is authorized by the state's workers' compensation board.

Counsel Comments:Employers may engage the services of a competent physician to review the medical care an injured worker is receiving. Such a person may be able to determine, for example, whether less expensive home care is more appropriate than hospital care. A medical consultant can also evaluate claims from the employee's doctor to see if they are self-serving.

Tip:Do not be afraid of reporting an accident or filing a claim in writing. Most states prohibit companies from firing, demoting, or otherwise punishing an employee for filing or pursuing a valid workers' compensation claim. Do this as quickly as possible so your case is not dismissed as being untimely. While you are receiving medical treatment, save all receipts of drug purchases, trips to the doctor (including tolls and cab fares), and all related purchases. You are generally entitled to full reimbursement for all direct out-of-pocket expenses, including payment for doctors, hospitals, rehabilitation, and related therapy costs. Dependents are entitled to receive death benefits in case of death, and you will be compensated for the loss of a limb or body part (such as an eye) based on a predetermined schedule. You are also entitled to compensation for loss of wages and income. The type of disability you suffered (e.g., temporary, permanent, partial, and/or total disability) will determine the amount of money you receive each week and how long you will receive such benefits. Each state has maximum limits for weekly benefits that typically do not exceed 75% of a worker's regular weekly salary.

Do not hesitate to consult a lawyer specializing in workers' compensation injuries or a personal injury lawyer where applicable, particularly if your employer refuses to provide benefits. A lawyer can protect your rights in many ways. For example, if anyone other than your employer or co-worker was even partly responsible for the accident, you may be free to file your own liability insurance claim against that person or business. If for any reason your accident is not covered by workers' compensation because you are an independent contractor or because the company has no coverage, you may be able to file a lawsuit against your employer in the same fashion that you could sue anyone who causes you personal injury. In such a case, additional damages such as attorney fees, money for mental pain and suffering, loss of companionship to a spouse, and even punitive damages, may be awarded.

Under certain circumstances you may also be able to collect Social Security benefits, retirement benefits or unemployment compensation, and health insurance payments while you are collecting disability benefits. A labor lawyer or one who specializes in workers' compensation law can advise you. A knowledgeable lawyer's services may be required to argue your case at the hearing stage before an administrative law judge, especially when the issues are not clear-cut (such as when and where the accident occurred, to determine initially if workers' compensation is applicable). Lawyers handling workers' compensation matters are generally quite knowledgeable about medical conditions and dealing with doctors. Resolving an issue of whether an accident caused a partial or permanent disability can involve tens of thousands of dollars in future wages.

(Note: Typically workers' compensation lawyers work on a contingency fee basis.) It may also be necessary to retain the services of a lawyer if you want to pursue an unsuccessful verdict at the appeals stage. Thus, consult a specialist for advice and guidance where applicable.