Workers Compensation
Injuries sustained at work are common and often have life long effects. As with any injury, there is uncertainty about the injured person's future health and earnings potential. Worker's Compensation provides significant protection for employees, but the law is complicated and often employees do not receive the benefits due to them. The following is based on Missouri law. The law in other states may be different.
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IMPORTANT - This is not a substitute for legal advice. Please see Disclaimer.
| 1. WORKERS' COMPENSATION CLAIMS | ||
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| 2. TYPES OF WC INJURES | ||
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| 3. WC BENEFITS | ||
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| 4. SECOND INJURY FUND | ||
| 5. LOSS OF EMPLOYMENT | ||
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| 6. SUEING AN EMPLOYER | ||
| 7. SETTLING A CLAIM | ||
| 8. INSURANCE CARRIED BY YOUR EMPLOYER | ||
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1. WORKERS' COMPENSATION CLAIMS |
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| If I am injured on the job, am I always entitled to Worker’s Compensation benefits? Most of the time the answer is yes, but there are many exceptions. First, if your employer has fewer than five employees, you may not be covered by the Workers' Compensation law. Also, there are certain types of employment that are not covered by the Workers' Compensation law. The Missouri Workers' Compensation law is very broad and if you have any questions, you should contact an experienced Workers' Compensation attorney. |
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| What kind of injuries are covered? The types of on the job injuries that are covered by Workers' Compensation are very broad. First, the typical accident is usually covered. For example, if you slip and fall at work, this is a Workers' Compensation accident. Workers' Compensation accidents also include injuries caused by repetitive motion such as carpal tunnel syndrome or tendonitis. Back injuries caused by lifting are usually covered, even if the lifted object is not heavy. Occupational diseases are sometimes covered by Workers' Compensation. Also, injuries caused by exposure to chemicals are usually covered. Under some circumstances heart attack is covered if the working conditions were the substantial contributing factor to the heart attack. Under some circumstances, mental stress on the job may entitle a worker to Workers' Compensation benefits. |
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| What about a work-related death? If a loved one dies because of a work-related injury, the family may be entitled to Workers' Compensation benefits. The benefits generally include a limited benefit for the funeral plus two-thirds of the employee's average weekly wage up to a maximum cap. This benefit is received weekly by the widow/minor children. The length of time that the benefit is received is affected by the remarriage of the widow, ages of the children, the age at which the children become emancipated and other similar factors. Remember that work-related injuries, which can result in death, include a broad range of accidents. For example, a heart attack that is work-related and causes death may allow the family to recover Workers' Compensation benefits. |
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| Does it make a difference who is at fault in causing an injury? Generally, an injured worker is entitled to receive the same benefit whether the worker was at fault in causing his or her own injury or whether the employer was at fault. However, there are many exceptions to this general rule. For example, injury caused because an employee is using alcohol may bar the employee from recovery. On the other hand, not every accident involving alcohol is barred. Also, violation of certain rules and statutes by the employee can reduce the benefit, and violation of certain rules or statutes by the employer can increase the benefits. You should talk with a Workers’ Compensation attorney about whether there are any facts in your case that would affect the benefit because of fault. |
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2. TYPES OF WC INJURIES |
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| Accidents caused by other workers If you are injured by another worker, you are entitled to Workers' Compensation benefits. There are limited circumstances such as horseplay or a personal assault by a fellow worker in which you may not be able to collect Workers' Compensation benefits. If your employer refuses to provide medical care because of these circumstances, you should contact an attorney for advice. |
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| Injury caused by defective equipment If you are injured on the job because of unsafe or defective equipment, you are probably entitled to Workers' Compensation benefits. Under some circumstances, you may also have a right to damages from the company (other than your employer) who manufactured, installed or maintained the equipment. Claims of this type are usually called products liability claims. If you have been injured by defective or unsafe products, you should contact a lawyer experienced in Workers' Compensation and products liability law. |
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| Injuries sustained on the job in a motor vehicle accident A car or truck accident is like any other on-the-job accident, and you would usually be entitled to Workers' Compensation benefits including medical care, lostwage benefit and the lump sum payment for permanent, partial disability. In addition to Workers' Compensation benefits, you may be entitled to recover damages for negligence against another driver. The damages that you can recover in a suit based on negligence are sometimes much broader than the benefits under Workers' Compensation coverage. For example, in a negligence claim you can recover damages for pain and suffering, all of your lost wages, future lost wages and impairment to your future earning capacity. Since there is an overlap or duplication of damages, it would be unfair for an injured worker to recover the full amount of damages under both claims. Therefore, Missouri law requires that if the injured worker recovers money from the negligent driver, he or she must reimburse the employer for benefits paid under Workers Compensation. The exact amount of reimbursement is complicated, and you should consult an attorney experienced in Workers' Compensation law for advice. The injured worker may also be able to recover benefits under his or her uninsured motorist coverage, underinsured motorist coverage and any other coverage that applies. |
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| Work induced Carpal Tunnel Syndrome Carpal tunnel syndrome is a wrist and hand injury caused by repetitive use of hands. Carpal tunnel syndrome can be caused by repetitive motion at work such as assembly line, work in poultry plants and even such things as clerical work. There are other types of similar repetitive motion injuries such as tendonitis. If you have a repetitive motion injury, you may be entitled to Workers' Compensation benefits. Sometimes a repetitive motion injury is caused by work at more than one employer. In this circumstance, there are special rules to determine which employer is responsible for your Workers' Compensation benefits. If you believe you have a repetitive motion injury, you should contact an attorney experienced at Workers' Compensation law. |
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| Occupational Diseases If you have a disease that is work related, you may be entitled to Workers' Compensation benefits. Examples of occupational diseases include hearing loss due to industrial noise, radiation disability, diseases of the lungs, contagious or communicable diseases and lead poisoning. |
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3. WC BENEFITS |
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| What benefits are included under WC? Generally, there are three kinds of benefits. Your employer should pay for all of the medical care necessary to treat your injury. As explained below, your employer has the right to choose the doctors to furnish this service. Second, your employer should pay you two-thirds of your average weekly wage, up to a maximum cap, during the time that you are disabled from employment. See below for an explanation of how weekly benefits are calculated. Third, if you have a permanent impairment because of your injury, you are entitled to a lump sum payment for that permanent disability. See below for an explanation of how the lump sum payment is calculated. |
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| What are my rights to medical care? If you require emergency care, your employer should make those arrangements immediately. Your employer must furnish you with all medical care necessary to treat your work related injury. The employer has the right to select the doctor that will provide the medical care. The employer may also have a right to change doctors. Sometimes if a doctor is recommending medical care that the employer or insurance company believes is unnecessary, the employer will select a new doctor with a different opinion about medical care. This causes many difficulties and if this happens, you may need to contact an attorney experienced at Workers' Compensation law. Under limited unusual circumstances, a Workers' Compensation judge can order the employer to change doctors or to furnish specific medical care. If your employer refuses to provide medical care, then you have a right to seek your own with a doctor that you select, and you can make a claim against your employer for reimbursement of your medical costs. Generally, your right to medical care is not limited in time and can extend over the balance of your lifetime. However, if you have a serious injury with some permanent disability, your employer may offer to pay you a lump sum to settle your case and release all future rights. If you believe you may need future medical care, you should consult a Workers’ Compensation attorney to get his or her advice on whether releasing the rights to future medical care is reasonable and in your best interest. |
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| Can I select my own doctor? Your employer has the right to select a doctor to provide you with medical care and has the obligation to pay for that medical care. You have the right to select your own doctor for a second opinion or for additional medical care, but if you do so, you must pay the doctor that you select. If you notify your employer that you have been injured and need medical care and your employer refuses to provide you with medical care, then you can select your own doctor, and your employer may be required to reimburse you for your medical expense. If your employer refuses to provide you with medical care, you should contact an attorney experienced in Workers' Compensation law to advise you. |
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| What are the weekly disability payments? Your weekly disability payment is called a temporary total disability (TTD) payment. Generally the TTD payment is two-thirds of the worker's average weekly wage for the last thirteen weeks. If this figure exceeds a maximum set by Missouri law, then the weekly payment is capped at the maximum. There are many alternate rules for calculating the average weekly wage if this simple formula does not apply. Under Missouri law, you do not receive the weekly benefit for the first three days you are off work unless you are off work more than fourteen days. In that event, you receive the weekly payments from the beginning of your disability. You have a right to continue to receive the weekly benefit as long as you are disabled from working at your old employment and still receiving medical care. Generally if you are no longer receiving medical care, you are entitled to the weekly benefit if you are totally disabled from all employment. If you have any questions about whether you are receiving all the weekly benefits to which you are entitled, you. should contact an attorney experienced at Workers' Compensation law. |
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| What benefits can I expect for a permanent injury? If you have an injury with a permanent impairment, you are entitled to benefits for the impairment even if you can continue working. For example, you may have a back injury that allows you to continue to work but causes restrictions such as lifting, bending, or twisting. The amount of the disability award is determined by a combination of an impairment rating (given to you by a doctor), your average weekly wage and the part of your body that is injured. For example, if you have a disability of 25% of the right arm, a lump sum payment can be calculated using that rating plus your average weekly wage. The treating doctor, selected by your employer, may give you an impairment rating, when your medical care is completed. You are not bound by that rating and you have a right to a second opinion, but you must pay for the second opinion. Most doctors do not perform Workers' Compensation disability evaluations, and it is usually necessary to retain an attorney who will send you to a doctor that regularly does Workers' Compensation ratings. Also, the attorney will usually advance the cost of the examination and be reimbursed when your case settles. The amount of the lump sum settlement payment can usually be settled by reaching a compromise between the two ratings. If a compromise cannot be reached, then a hearing will be held so the Judge can decide on the amount of your disability. |
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4. SECOND INJURY FUND |
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| What is the Second Injury Fund? The Second Injury Fund is designed to make sure that employers are not penalized by the Workers' Compensation law if they hire handicapped workers. A simple illustration may help. Suppose a worker has lost the vision in one eye. The worker is then employed by XYZ Corporation. The worker is then involved in an accident in which he loses the vision in the only remaining good eye. With a total loss of vision, the employee is permanently and totally disabled. The logic of the Second Injury Fund is that it would be unfair to require the employer to pay total disability benefits because the loss of one eye would not ordinarily cause permanent total disability. Therefore, the employer must pay only for the loss of one eye and the Second Injury Fund pays the rest of the benefits due for permanent total disability. There are many other examples. If a worker injures a left knee, he or she can ordinarily compensate to some extent by using a good right knee. However, if the right knee was already injured, this makes the effect of the left knee injury more severe. The Second Injury Fund can also apply in a wide range of circumstances in which the pre-accident disability includes such things such as diabetes, back injury and can even apply to a pre-accident mental or psychological condition. If you had any pre-existing disability before your work-related accident, you should discuss it with a Workers’ Compensation attorney to see whether you are entitled to Second Injury Fund benefits. The Second Injury Fund may also owe you benefits if your employer does not have Workers' Compensation insurance. |
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5. LOSS OF EMPLOYENT |
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| What if I cannot return to work? The answer to this question involves several complicated issues. If you are unable to return to work because of your work-related injury, you may be entitled to a weekly benefit of two-thirds of your average weekly wage, up to a maximum cap, for the rest of your life. To be entitled to this benefit, you must be totally disabled from any employment. Under Workers' Compensation you are not totally disabledsimply because you are unable to return to your old job. If you are totally disabled because of a combination of a pre-existing disability plus the disability caused by your work-related accident, then you may be entitled to benefits from the Second Injury Fund. Generally, this benefit is two-thirds of your average weekly wage, up to the maximum cap, for the rest of your life. Again, to be totally disabled under Workers' Compensation, you must be disabled from all employment and not simply the employment you had before the accident. Any time you are disabled from employment, you should consider whether you are entitled to Social Security disability benefits. There is sometimes a set off between Social Security disability benefits and Workers' Compensation benefits, and you should always contact an attorney experienced in Workers' Compensation law if you are receiving or plan on receiving both Workers' Compensation benefits and Social Security disability benefits. |
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| Is my employer required to hold my job? The Missouri Workers' Compensation law does not require the employer to hold your job while you recover from your disability. However, there are other federal and state statutes that give a worker some protection, such as the Americans With Disabilities Act, the Family Leave Act and the Missouri Human Rights Act. These laws are complicated and if you believe you have not been treated fairly, you should contact an attorney experienced in this area of the law. |
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6. LOSS OF EMPLOYENT |
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| Can I sue my employer instead of collecting WC benefits? Generally the answer is no, but there are limited circumstances in which a negligent action can be brought against the employer or fellow employees. The most common circumstance in which an employer can be liable for negligence is if the employer has fewer than five employees and is, therefore, not covered by the Workers' Compensation statute. The other exceptions that allow a negligent suit against an employer or fellow employees are limited and complex. To be safe, you should always ask an experienced employment law attorney if there is a possible negligence claim. |
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7. SETTLING A CLAIM |
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| Can I settle my claim? Most Workers' Compensation claims are settled. In Missouri all settlements of Workers' Compensation claims must be approved by a Workers’ Compensation judge. The Workers’ Compensation judge will review the facts of the claim and should not approve the settlement unless he or she believes it is in accordance with your rights under the law. The Workers' Compensation judge does not have an obligation to make sure the agreement gives you all of the benefits that you should receive under the law or that the agreement is fair. The judge is only required to make a limited determination about whether the agreement is in accordance with your rights. If you have any concern about whether an offer made by your employer is reasonable and about whether you have been paid all of the benefits, you should contact an attorney experienced at Workers' Compensation law. |
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8. INSURANCE CARRIED BY YOUR EMPLOYER |
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| Does an employer have to have insurance? Generally all employers with five or more employees are required to purchase Workers' Compensation insurance that will pay all of the Workers' Compensation benefit. Therefore, an injured worker is usually dealing with an insurance company rather than the employer, but the employer retains some control over the benefits that are paid. Under some circumstances, a large employer may apply to the State of Missouri to become self-insured. An employer must show it is financially able to pay Workers' Compensation benefits without insurance coverage. In Missouri it is a crime when an employer fails to have Workers' Compensation insurance if the insurance is required by law. The Attorney General's office prosecutes the crime and imposes a fine and even a jail sentence. |
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