Category Archives: Workers’ Comp’ Basics

10 Things To Do If You Get Hurt At Work

If you are hurt at work make sure to follow these guidelines to protect your rights

Today’s post comes from guest author Todd Jones from Pasternack Tilker Ziegler Walsh Stanton & Romano.

When you’re injured at work in New York, people often ask what they should do immediately following the accident. There are several basic things you should do to protect your rights under New York State Workers’ Compensation Law.
  1. Report the accident to your supervisor/employer as soon as is possible. Under NYS law you have 30 days to give your employer notice of the accident. Report the injury to your supervisor and be clear about how it happened and that it happened at work.
  2. Follow up with your employer to ensure they have prepared an accident report. If a report is not being prepared, you should write a letter stating the circumstance of the accident for your Supervisor. If you can, send your letter by email or have your supervisor sign a note that acknowledges receipt. A paper trail is always helpful.
  3. When you receive a copy of the accident report, or any paperwork from your employer or its insurance carrier, be sure to make copies for yourself. Keeping your own file is always helpful in the long run. You should bring that file with you to hearings to show your attorney and the judge, if needed.
  4. If you are a member of a union, you should tell your shop steward of the injury as well. Be sure that you report to the shop steward who you gave notice to, when you gave it, and ask what your union policy is on Workers’ Compensation injuries.
  5. Keep a log of<!–more–> all significant contacts you make along the way. Note your doctor visits, conversations in adjusters, and any documents received.
  6. If you are out of work because of your injury, you need to see your doctor every 45-90 days (depending on your injury). The reports that your doctor submits to the NYS Workers’ Compensation Board is the evidence required to support your continuing disability. Without those reports your treatment may be obstructed and any indemnity payments you’re receiving may be stopped.
  7. When you visit the doctor remember to be clear and discuss in detail the circumstances of your injury. Everything from what job you do, to where you were hurt, to the mechanics of the injury (For example: Did you fall backwards? Sideways? Land on your knees? Your back? Some other way?)
  8. If your doctor says you can return to work in a lighter capacity, be sure to get a letter that lays out what physical restrictions you have. You should keep a copy for yourself and provide copies to your employer.
  9. Do not be afraid to follow up with your doctors to get copies of the medical reports they are submitting to the Board. Up to date medical evidence is an essential component of a workers’ compensation claim. You do not want to leave your fate to the efficiency and prowess of others to prepare, scan, and upload documents to State computer programs.
  10. If your doctor tells you that treatment has been denied, discuss the need for treatment with your doctor and ask if he/she needs you to sign a “variance” request to affirm you would like to bring the issue to the Board.

Sometimes the “smell test” is most applicable. If something doesn’t smell right don’t be afraid to consult your attorney (or retain one if you haven’t already). There are a number of moving parts in these cases — doctors, adjusters, independent medical consultants, physical therapists, judges, your lawyers, insurance company lawyers — that asking questions and doing your best to get a firm grasps on the status of your claim is only going to help you as you recover from your injury.

NFL Bounties – Intentional Injuries

NFL players can qualify for workers’ compensation benefits

The injury rate in the NFL is 100 percent. If you stay around long enough you will have multiple injuries. This high “natural” injury rate makes it hard to understand how a team could give awards to players who injure other players, but that’s just what the New Orleans Saints did, and now appeals are being filed against rulings that impose penalties for those acts. Most NFL players are high wage earners and have an average of five years in the league. They don’t need opposing players intentionally trying to hurt them. It’s already dangerous enough out there on the field.

Can you imagine the uproar if management at a business told workers they should intentionally hurt other workers of a competitor? The idea of intentional injuries is reprehensible and in North Carolina our state Supreme Court ruled in Woodson v. Rowland (1991) that if an employer knowingly places an employee in a position where the employee is substantially certain to be seriously injured or cause death, then the employer can be sued in civil court by the employee or the survivors of the employee. The workers’ compensation statute, with limited benefits, is the exclusive remedy for employees, except for this one exception.

It is hard to find a case that rises to the extremely high standard set forth in Woodson. Here are two examples that didn’t quality:

  1. A 17 year-old boy was pulled into a pallet shredder and crushed to death. Although there were 11 safety violations by the employer and the machine’s guards had been removed, no civil action was allowed.
  2. A man lost his left leg when he fell into an auger with inoperable safety switches. No civil claim was allowed.

This is a tough standard. Employers gave up liability defenses when they accepted the workers’ compensation system and one of the most powerful things they got in exchange was the waiver of the right of an employee to seek damages in civil court, before a jury. The NFL, as an employer, is no different than other employers in this respect. Given the serious injuries sustained by professional football players, the NFL should not complain when compensation claims are filed, usually because of career ending injuries.

Employers Must Obtain And Maintain Workers' Compensation Insurance Coverage

Today we have a guest post from our colleague Todd Bennett of Nebraska.

Your employer is required by law to have workers' compensation insurance for you.

Every employer not in agriculture, farm or ranch operations is required to obtain and maintain workers’ compensation coverage for all employees. Those employers who voluntarily and willfully fail to obtain and maintain coverage violate the law and subject themselves to significant risks.

If you are an employee who is injured in the course of your employment and you learn that your employer has not maintained workers’ compensation coverage for you, you can either file a claim against the employer in civil court or file a claim in the Workers’ Compensation Court.

Employers who try to avoid their legal obligations and avoid providing workers’ compensation coverage expose themselves to monetary judgments in civil court, stop-work orders from the Attorney General’s office, injunctions from continuing to operate their business, assessments against their property, daily penalties of Continue reading

What Happens If My Spouse Dies From A Work Accident Or Occupational Disease?

Today we have a guest post from our colleague Brody Ockander of Nebraska.

If a worker dies from a work accident or occupational disease, his surviving family members are entitled to death benefits under Nebraska workers’ compensation.

However, proving the death was work-related is sometimes complicated in situations where there is not a clear accident. For example, there are no death benefits for a worker who dies at work from natural causes simply because he died at work. Instead, it must be shown that work or something that happened at work somehow played a role in the death.

If your spouse dies due to a work-related injury or illness, you are entitled to workers' compensation benefits.

In situations that are not necessarily clear, especially when the insurance company tries to blame the death on some other reason or on natural causes, you will probably want to get a lawyer to help establish how the work or work exposure caused the death of your loved one. If you are able to show that the work contributed to the death, the worker’s family may be entitled to the following benefits:

Benefits for the surviving spouse:
If it can be established that work caused the death, the worker’s surviving spouse is entitled to workers’ compensation benefits every week at 2/3 of the worker’s average weekly wage at the time of death. This potentially lasts for the spouse’s life or until remarriage. If the spouse later remarries, then he/she is entitled to a lump sum payment for two years of benefits.

Benefits for surviving spouse with children:
If the deceased worker had dependent children and a spouse at the time of death, the surviving spouse is entitled to 60% of the worker’s average weekly wage plus 15% for each child. If the children don’t live with the surviving spouse, the spouse is entitled to 55% of the average weekly wage.

Benefits for dependent children:
If the worker is survived by dependent children, work comp benefits are paid to those children (in equal share) for their dependency or until age 19 (or age 25 if full-time student or the child is physically or mentally incapable of self-support).

Benefits for other family members:
There may also be benefits available for parents, brothers, sisters, grandparents, and grandchildren if it can be shown that they were dependents of the deceased worker. If dependency can be established, these types of dependents would be entitled to 25%.

Funeral Expenses:
The employer is responsible for funeral and burial expenses up to $6,000 whether or not the deceased worker had a spouse or any dependents. This was recently raised to $10,000 by the Nebraska Legislature in 2012.

Read This Before You Go To An Insurance Medical Examination

Insurance medical exams may seem like regular doctor visits, but these docs are not on your side.

Today’s guest post comes to us from our colleague Matt Funk of New York.

Many times insurance medical examinations are considered by injured employees to be the same as Independent Medical Examinations (IMEs). There is nothing farther from the truth. These examinations are bought and paid for by the insurance company and for their benefit.

The insurance carrier doctor is no friend to an injured worker. He or she is a private consultant paid for by the carrier.

You should be prepared for these examinations by knowing your rights and how to protect them:

1) You have the right right to bring a family member or friend with you to the examination.
You can bring your spouse into the examination room during the examination. This is important because it allows for a witness to testify at court about the validity of the examination and to dispute tests that the doctor claims to have done.

2) You are permitted to audiotape or videotape the examination.
And there is nothing in the law that requires you to tell the insurance company doctor that you intend to tape the examination.

3) You should Continue reading

NFL Concussion Suits Barred by “Exclusive Remedy”? Why can’t I sue my employer?

Today we have a guest post from our colleague Tom Domer or Wisconsin.

We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation.

Aaron Rodgers concussionIn liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.

The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or Continue reading

Beware Part Time Employment

Workers' Compensation will only cover you for the specific job on which you got hurt.

Today we have a guest post from our colleague Tom Domer of Wisconsin.

Wisconsin pays worker’s compensation benefits based only on the job on which an employee works, even if the employee’s injury makes it impossible for him to work in his regular job. In these difficult economic times, many workers are forced to take a second part time job to supplement their incomes. Unfortunately if the worker is hurt at the part time job, only the wages earned from the part time job will be used to calculate worker’s compensation benefits, even if an injury on the part time job means the worker will not be able to return to his full time job.

For example, a cook re-hired at a former wage by the restaurant where he was hurt could not claim a Loss of Earning Capacity based on his inability to return to his second job as a cab driver. Continue reading

Returning to Work Shouldn’t Be This Hard

Today’s post comes to us from our colleague Roger Moore of Nebraska.

Communicate with your doctor and follow a few guidelines to stay safe when you return to work.

In virtually all workers’ compensation cases an injured worker has to return to work in some capacity. Often these are very stressful situations and it is not uncommon for issues to arrise including conflict with an employer over what a safe return to work actually is. Your goal should be to continue to earn a paycheck while at the same time not risking further injury. Many times this is easier said than done.

Whether it’s a supervisor who ignores your restrictions or a human resources department that actively skirts them, issues frequently come up. We see employers do everything from requiring an injured worker to lift or stand more than they should, to pressuring an employee to return to work the day after a surgical procedure.

You can expect that a nurse case manager or HR specialist from your employer is communicating with your doctor’s office about your return to work. Sometimes they may misrepresent the work that they expect you to do upon your return. It is your job to fill in the gaps.

The most important thing an injured worker can do is communicate with his or her treating physician.

  1. Educate your doctor about the job you were doing when you were initially hurt.
  2. When you are assigned to work, educate your doctor about the light duty job you are doing.
  3. If you are assigned to a job that is difficult for you to perform due to your injury, talk to your doctor about what aspects of that job are difficult. The doctor will likely be willing to restrict you from doing that specific activity.
  4. If your employer is Continue reading