Top 20 Workers’ Comp Questions with Attorney Answers

Get fast answers to the most frequently asked workers’ comp questions. Here’s what you need to know when filing your work injury claim.

The workers’ compensation system requires employers to carry insurance for workers who are hurt on the job. Workers’ compensation coverage pays the injured employee’s medical costs and replaces part of the worker’s lost wages.

Here we’ve answered the most commonly asked questions about workers’ compensation eligibility, benefits, medical treatment, and payouts.

Eligibility for Workers’ Compensation

1. Who can get workers’ compensation benefits?

Every state and territory in the United States requires employers to provide workers’ compensation insurance to their employees within certain limits. Very small companies with few employees may not be obligated to purchase workers’ comp insurance.

Federal workers are covered under a separate workers’ compensation program.

The family of a worker who is fatally injured may be eligible for workers’ compensation death benefits.

Workers who may not be eligible for workers’ compensation include:

  • Independent contractors
  • Seasonal workers
  • Domestic workers like babysitters or housekeepers
  • Undocumented workers

Each state has its own rules, eligibility requirements, and limitations.

Find your local State Workers’ Compensation Office contact list for more information about your state’s rules and deadlines.

2. Can I still get workers’ comp if the work injury was my fault?

Most workers can get workers’ comp benefits even when their injury was caused by their own mistake or negligence on the job.

Eligible workers are entitled to workers’ compensation benefits regardless of fault, with some exceptions. Workers who are injured in the commission of a crime, while under the influence of alcohol or drugs, or who intentionally injured themselves may legitimately be denied workers’ compensation benefits.

3. Is there a deadline for filing a workers’ compensation claim?

There is always a deadline for reporting injuries and filing a workers’ compensation claim. Deadlines are different for each state. Filing a claim is not the same as notifying your employer. You’ll need to do both.

If you’re injured on the job, first get immediate medical attention. Then, promptly notify your employer of your work-related injury.

Once notified, your employer should give you the workers’ compensation claim forms and instructions for filing your claim.

If you have not received the information from your employer, don’t wait. Contact your local Workers’ Compensation office to file your claim. If you miss your state’s deadline for filing your claim, you may forfeit your eligibility for medical benefits and wage replacement.

4. Will workers’ comp pay if  I was hurt during my lunch break?

Workers who are injured off-the-clock, during a lunch break, or commuting to and from work are generally not eligible for workers’ compensation benefits.

However, if you are acting on behalf of, or at the request of your employer, you will likely have a legitimate workers’ comp claim, even if you are injured outside your normal workday.

For example, if you get hurt running out to pick up lunch for you and a couple of your friends you won’t be covered. However, if you were hurt while heading to the deli to pick up lunch for a client meeting at the request of your supervisor, you’ll have a legitimate claim.

5. Do I qualify for worker’s comp if I have a pre-existing condition?

You can make a claim for workers’ compensation for any injury that occurs on the job, even when your injury is an aggravation of an old injury or pre-existing condition. Never try to hide or lie about a prior medical condition.

It’s important when reporting your injury and talking to your medical provider that you distinguish your new injury and symptoms from your old injury. You want your medical records to show that you weren’t having problems until the recent work injury.

Don’t make excuses for your symptoms and do be specific, for example:

Instead of saying, “My old back is killing me from moving those boxes this morning!”

Be more specific and say, “I was moving boxes of copier paper first thing this morning. When I picked up the third box, I felt something pop in my back. My back immediately hurt so badly that I couldn’t straighten up and felt sick to my stomach. I had never felt that kind of pain before I picked up that box.”

Workers’ Compensation Benefits

6. What kind of benefits can I get from workers’ compensation?

Workers’ compensation will cover the cost of your medical expenses for treatment, physical therapy, and rehabilitation for serious injuries; out-of-pocket expenses for medical equipment and travel to injury-related appointments; and a portion of your lost wages.

Vocational benefits, like help with your resume and training for a new job may be offered. Vocational benefits help get you get another job if you can’t return to your old job.

Wage replacement benefits in most states are about two-thirds of your base pay, up to your state’s maximum weekly benefit limit. State limits range from $390 to over $1,200 per week for wage replacement benefits.

7. How is workers’ comp wage replacement calculated?

Wage replacement benefits are typically calculated as an average of your weekly pay for the prior 52 workweeks. Don’t trust the workers’ comp insurance company to accurately calculate your wage benefit.

Insurance companies are notorious for making mistakes in calculating wage benefits, and those errors are never to the benefit of the worker. You have a right to ask the workers’ comp representative to provide you with copies of the wage records they used to arrive at your benefit payment.

If the insurance company won’t cooperate or refuses to correct an error in your wage benefit calculation, contact an experienced workers’ compensation attorney to discuss your case.

8. What does workers’ compensation pay if I’m disabled?

Many workers are injured badly enough that they can never return to the type of work they were doing before they were hurt, or they are unable to work at any job after their injury. Permanently injured workers are generally offered disability settlements in addition to their regular wage replacement benefit.

Disability settlements can be a lump sum or payments over time. The settlement amount depends on the injured worker’s category of disability.

Definition of Workers’ Comp Disability Categories

  • Temporary Total Disability completely prevents you from working for a limited amount of time.
  • Temporary Partial Disability prevents you from doing some, but not all of your job duties for a limited amount of time.
  • Permanent Total Disability prevents you from ever returning to work, whether for your current employer or another employer.
  • Permanent Partial Disability is a permanent injury that partially impairs your ability to work.

9. How is a workers’ compensation settlement determined?

Workers who suffer a permanent disability after a job injury may qualify for a wage benefit settlement. The wage settlement is calculated by using a medically determined impairment rating and your state’s schedule of benefit weeks for the affected body part or function.

The settlement might include an amount for estimated future medical expenses. If not, the workers’ compensation insurance company will continue to pay related medical bills directly.

10. What’s the best way to negotiate a workers’ comp settlement?

Workers’ compensation insurance companies prefer settlements that will close down your workers’ comp claim and terminate your benefits, including medical benefits, for good.

Workers’ comp settlements for relatively minor injuries are pretty straightforward. You need to ensure your wage benefits are calculated correctly and any outstanding medical bills are paid before you sign off on a settlement agreement.

Severe workplace injury claims are best negotiated with the help of an experienced workers’ compensation attorney. Your employer might be the best ever, but your employer’s insurance carrier has no compassion for your injuries or your financial future. An attorney will ensure your future medical costs are covered and that you are properly compensated for lost earning capacity.

Medical Issues After a Work Injury

11. Can I use my own doctor to treat my work injury?

Most workers’ comp plans require injured workers to be evaluated and treated by doctors from the insurance company’s pre-approved medical provider network. Check your state’s rules. Many states will allow you to change over to your personal doctor after a certain period of time.

Even if you choose your own doctor, there may be limitations. For example, some state workers’ compensation programs won’t cover chiropractors or alternative medical treatment.

12. Will workers’ comp pay for medical care I had before filing my injury claim?

Workers’ compensation should reimburse the cost of necessary emergency care at the time of your injury, regardless of the medical provider.

If you used your own health care insurance to pay for the emergency room or urgent care, let them know to contact the workers’ compensation insurance company for reimbursement of the expenses paid on your behalf.

13. What is an Independent Medical Exam (IME)?

The insurance company has the right to send you to one of their hand-picked doctors for an Independent Medical Exam (IME) at any stage of the workers’ comp claim process.

You’ll be asked to undergo an IME when:

  • Your treating doctor requests expensive tests or treatment the insurance company doesn’t want to approve
  • The insurance company wants to prove you’re faking your injury or malingering
  • You’ve reached maximum medical improvement, and they need to determine your level of disability
  • The insurance company wants to push you into a quick settlement so they can close your claim

The IME doctor will not treat your injury or help you in any way. The IME doctor is only there to gather information for the insurer to use against you. Refusing an IME gives the insurance company a fast excuse for terminating your workers’ compensation claim.

14. Do I have to go back to work before I’m ready?

Your treating physician may release you to return to work with or without restrictions. Restrictions can be anything from seated-only work, to limited hours of work each day, or limitations on standing or lifting.

When your doctor releases you to return to work and your employer has light-duty work that will meet your work restrictions, you must report for work as assigned. Failing to return to work can result in termination of all your workers’ comp benefits.

If the insurance company and their doctor are pushing you to go back to work before you’re ready, contact a workers’ compensation attorney to discuss your rights.

15. How do I get a second medical opinion about my work status?

You can always seek a second opinion from a doctor of your choosing, but you may have to pay out-of-pocket and not be reimbursed by workers’ comp. It may be worth the cost to pay for a second opinion if you disagree with the treating physician’s opinion of your ability to return to work.

Problems Getting a Workers’ Comp Payout

16. What if my workers’ compensation claim is denied?

If your initial workers’ compensation claim has been denied, don’t give up. You have the right to file an appeal to dispute the claim denial.

Carefully read through your denial letter. The letter from the workers’ compensation insurance company should clearly state the reasons why your claim has been denied. You’ll need to respond to each of those reasons in your appeal.

Make sure you understand any deadlines you’re facing. The letter should tell you where to send your appeal and what the deadline is for sending in your paperwork.

17. Can I sue my employer for causing my work injuries?

Workers’ comp is designed to protect employees by providing medical and wage replacement benefits without the employee having to prove the employer was negligent. The flipside of that is the employer is protected from lawsuits by injured workers in most cases.

However, you can sue your employer for your injuries if your employer was grossly negligent or engaged in work practices that knowingly put employees at extreme risk.

18. What if my employer doesn’t have workers’ compensation insurance?

Most employers are required by law to carry a worker’s compensation insurance policy, with few exemptions. For instance, some states don’t require employers with less than five employees to carry workers’ comp insurance.

If your employer was exempt, or illegally failed to carry workers’ compensation insurance, you still have legal options.

If you’re hurt at work, you might be able to file a premises liability claim against your employer’s business liability insurance. If faulty equipment contributed to your workplace injury, you may have grounds for a product liability claim against the manufacturer.

If necessary, you may be able to sue your employer personally. Contact a personal injury attorney to discuss your options.

19. What’s a third-party personal injury lawsuit?

When it comes to workplace injuries, a third-party is any person or business other than your employer who contributed to the circumstances that caused your injuries.

Some examples of third parties that may have contributed to workplace injuries are:

  • Manufacturers of defective machinery or tools
  • The at-fault driver if you were injured in a car accident while working
  • Subcontractors or vendors at a worksite who were negligent
  • Property owners other than your employer responsible for unsafe conditions

If you and your attorney file a lawsuit against a negligent third party for your injuries, you can seek recovery for all your expenses including replacement services, pain and suffering, consortium claims by your spouse, full wage loss, future lost earnings, and in some cases punitive damages. You can file a third-party lawsuit in addition to your workers’ compensation claim.

Learn more about the difference between personal injury and workers’ compensation claims.

20. Who can help me with my worker’s compensation claim?

You don’t have to face the insurance company and their army of experts by yourself. Their only interest is in protecting the company’s bottom line – not your financial future.

You’re entitled to full compensation for your workplace injury through workers’ compensation and from other parties who may be responsible for your damages.

Contact a workers’ compensation lawyer for legal advice and help with your claim. Only a local attorney can answer your specific workers’ comp questions.

Most reputable attorneys offer a free consultation, and most states have workers’ compensation laws that limit attorney fees for workers’ comp cases.

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>