Workers Compensation Frequently Asked Questions
When should I report an injury by accident or compensable occupational disease to my Employer?
The short answer is as soon as possible. Even if you believe it is minor injury that will not require any major medical attention or time out of work, you should still report it to a supervisor and have them fill out an accident form. Many denied cases arise because the worker does not timely report the injury and the employer tries to blame the injury on another cause. Technically, the employee should give written notice of the accident to their employer within 30 days. However, this legal requirement may be waived if the employer has actual notice and is not prejudiced by the lack of written notice.
There is a difference for notifying employers of an occupational disease. Employees must be told by competent medical authority that they have a disease caused by their job or occupation. Once they are told by competent medical authority that they have an occupational disease, they have 2 years from their date of disability to file a claim. As a practical matter, it is always better to file a claim earlier rather than later. If you have a question regarding whether to file a claim for an occupational disease, you may want to consult an attorney experienced in workers compensation law.
What should I do if an insurance adjuster wants to take a recorded statement after I file my notice of accident?
Usually, employers will send information regarding an employee’s injury by accident to their insurance carrier for further investigation. If the injury is clearly an injury by accident such as an employee running and tripping on piece of wood and breaking their leg, there may not need to be an investigation. This is often the case when there are witnesses to the accident. However, there are many cases where the employee’s account of how the injury occurred may determine whether or not the employer and insurance carrier agree to find the injury compensable.
If an insurance adjuster calls an injured worker to take a recorded statement over the phone, the employer is trying to determine whether or not the injury is compensable. If the employee assumes that all injuries which occur on the job are compensable, they may misstate or answer questions during a recorded statement that could hurt their case. This is very critical since a recorded statement cannot be undone and can result in a denied claim. If you have an insurance adjuster asking you to consent to a recorded statement, you may want to consult an attorney experienced in workers compensation law.
When should I start receiving medical and/or weekly benefits after I report my injury and it is found to be compensable by my Employer?
The employer should send the injured employee to seek medical attention as soon as possible. In emergency situations, the injured worker should be sent to a local emergency room. In less serious but still urgent situations, the employer may send the employee to an urgent care center such as Pro-Med. If the injury does not resolve quickly, the injured employee will often be referred to specialist depending upon the type of injury.
Weekly indemnity benefits for time out of work do not start until an injured worker has been out of work for more than 7 days. If a worker ends up being out of work for more than 21 days, then the employer must go back and pay benefits for the first 7 days. An employee is allowed to use paid vacation or sick days for the first 7 days if they are entitled to them.
How is the amount of my weekly benefits determined mathematically?
In general, the employer takes the average weekly wage of the employee for the 52 weeks of employment prior to the accident and pays 66 2/3% of the average weekly wages before tax wages. In other words, the average weekly wage is calculated using gross wages before deductions are made for taxes, medical benefits and retirement benefits. If the employee has missed more than 7 days of work during the past 52 weeks, these periods of time are deducted out of the equation. There are a total of 5 ways that average weekly wages can be calculated and it can be tricky when you have seasonal, short-term or part-time employees. However, the main goal in computing average weekly wages is to most nearly approximate the amount which the injured employee would be earning were it not for the injury.
What if I am able to return to work either part-time or working in modified job position and my employer pays me less money?
If an injured worker returns to work for their employer or another employer in a different position or part-time position due to their injury, they are still entitled to receive workers compensation benefits. However, they are only entitled to receive 66 2/3% of the wages they were earning prior to the injury compared to the wages they are earning after the injury. These wages are calculated and paid on a weekly basis. An injured worker is entitled to earn partial temporary disability benefits for a total of 300 weeks after the date of injury.
What if I am never able to return to work due to my injury and other factors such as my age and education level? Do my disability benefits run out at certain point?
If an injured workers in unable to return to work in ‘suitable employment’ due to their injury, then weekly disability benefits will continue to paid on weekly basis. There is no artificial cap on benefits after a certain number of weeks or a certain age. However, an injured worker has an affirmative duty to seek ‘suitable employment’ if they are unable to return to work with their employer.
‘Suitable employment’ is defined as ‘employment in the local labor market or self-employment which is reasonably attainable and which offers an opportunity to restore the worker as soon as possible and as nearly as practicable to pre-injury wage, while giving due consideration to the worker’s qualifications (age, education, work experience, physical and mental capacities), impairment, vocational interests and aptitudes.
A vocational rehabilitation professional may be assigned to work with an injured worker to try and find suitable employment. A vocational rehabilitation professional will do a vocational assessment and develop an individualized vocational plan for an injured worker to return to suitable work. It may be necessary for the injured worker to further their education or job skills in order to find suitable employment. This may include taking computer classes, getting a GED, taking community college or vocational classes or completing a college degree.
However, if due to the severity of the injury, an injured workers’ advanced age, lack of education, lack of job skills and other factors, an injured may be totally and permanently disabled. If an injured worker is unable to find suitable employment due to his injury and other factors, the employer must continue to pay an injured worker weekly benefits indefinitely. In this situation, an employer and employee may seek to settle the claim for a lump sum amount of money to end the claim. It is always wise to consult an experienced workers compensation attorney before settling a worker compensation claim, which will end the worker’s right to further benefits.
What if I am an illegal alien? Does this bar my right to workers compensation benefits?
No. Illegal aliens are still employees entitled to workers compensation benefits. There is still an employee-employer relationship and the employer is still legally bound to pay illegal aliens for compensable workers compensation injuries.
What if I signed a contract with my employer that states I am an independent contractor and not an employee? Am I still entitled to workers compensation benefits?
If there is an employer-employee relationship, then the contract will not be binding and you will still be entitled to workers compensation benefits. An employer-employee relationship will be determined by common law, not contracts written by the employer. If the employer controls the way the work is done, the time and hours worked, whether the worker can use helpers, can fire the worker if the work is not done a certain way, then the worker is likely an employee and not an independent contractor. If you find yourself in this situation, then you should probably consult an experienced workers compensation attorney.
What would happen if I died in a work related injury? Would my family get any benefits?
Yes. Your total dependents, which typically is your spouse and minor children, would be entitled to 400 weeks of workers compensation benefits in addition to $3,500.00 in burial benefits. If you do not have total dependents, then it goes to partial dependents or next of kin.
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