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Worker's Compensation Laws

The following is a look at Worker's Compensation Laws and some misconceived notions. The information stated here is information I have gathered from not only my current ongoing Worker's Compensation case, but months and months of research. This post is no way intended to answer, advise, or be a substitute for licensed legal advice. Worker's Compensation Laws vary from state to state. You should review your local state laws for updated information.

Some Misconceived Notions about Worker's Compensation

1. If you are hurt at work you are automatically covered by Worker's Compensation
2. If you are covered by Worker's Compensation, your employer has to continue to pay you while you recover.
3. Worker's Compensation will cover all cost associated with your recovery.
4. You don't need to hire a lawyer
5. A Worker's Compensation settlement will give you a nice chunk of change.
6. If you have a permanent disability as the result of an on the job injury your employer will have to pay you your salary for the rest of your life.
7. Worker's Compensation settlements include monies for pain and suffering.

Before we dispel the above misconceived notions regarding Worker's Compensation, we need to take a moment and look at a brief history of the compensation program.

Worker's Compensation History

Nippur Tablet 3191

The ancient Sumeria tablet known as The Nippur Tablet No. 3191 outlines the law of Ur-Nammu, king of the city-state of Ur. It dates to approximately 2050 B.C.  Yes, you read that correctly, 2050 B.C.  The law of Ur provided monetary compensation for specific injury to workers' body parts, including fractures. The code of Hammurabi from 1750 B.C. provided a similar set of rewards for specific injuries and their implied permanent impairments. Ancient Greek, Roman, Arab, and Chinese law provided sets of compensation schedules, with precise payments for the loss of a body part. For example, under ancient Arab law, loss of a joint of the thumb was worth one-half the value of a finger. The loss of a penis was compensated by the amount of length lost, and the value an ear was based on its surface area. All the early compensation schemes consisted of "schedules" such as this; specific injuries determined specific rewards. The concept of an "impairment" (the loss of function of a body part) separate from a "disability" (the loss of the ability to perform specific tasks or jobs) had not yet been considered.

Workers Compensation In Today's Society

Prior to onset of modern Worker's Compensation laws a worker who was hurt at work had to sue his employer in civil court or tort Court to recover the cost of medical bills and lost wages. Typically this proved to be a very lengthy and expensive undertaking on the behalf of the worker. Imagine, being hurt, not being able to work, there is no income, therefore no money to hire a lawyer. How was an injured worker going to afford to sue his employer? Over time groups were formed to help the injured worker cover the cost of the needed civil lawsuits.

There was a time that some companies required a potential worker to sign what later became known as the "The Right Die" contract or "Death Contract", before starting work. These "contracts", to put it simply, stated the worker knew the associated risks with the type of work he or she was about to partake in and therefore could not sue the employer if an injury occurred. In addition, there was laws that protected the employer from suits brought by injured workers if it could be proved that the injury was the result of a fellow co-worker.

Needless to say, prior to the onset of the modern day worker's compensation laws, and injured worker really didn't have a leg to stand on (pun intended). With the development of the industrial revolution, if you will, more and more workers were being hurt with no recourse to recover medical bills or lost wages. In time different groups were formed to help the injured worker by covering the cost associated with the legal fees needed to file tort claims or allow the worker to sue their employer in civil court. Over time, these tort claims and/or civil suits would greatly benefit the worker with large settlements. At the same time, these large settlements were taking a financial toll on the employers. Something had to change and the Worker's Compensation laws began to take shape.

Worker's Compensation is simply a no fault insurance. Most states require that an employer carry Worker's Compensation Insurance. Each state has different requirement pertaining to who must carry the insurance. Small companies with a certain number of employees, domestic services companies, etc. can be exempt from worker's compensation requirements. Again, these exception vary from state to state. Most states have a state controlled insurance fund that the employers purchase their coverage from with set pricing for the type of work and number of workers. Some states such as Texas have a law that allows an employer to opt out of the state controlled Worker's Compensation program. However, even these employers must carry some form of insurance, which is provided by a private insurance company, which has proven to be less expensive.

Answering the Misconceived Notions

1. If you are hurt at work you are automatically covered by Worker's Compensation

The answer is simply, No. Not every workers is covered by Worker's Compensation Laws.
Each state has different exemptions and you should contact a Worker's Compensation Lawyer in your area to make sure you are covered. You can also check with your local labor board prior to starting a new job to see if workers in your line of work are covered.

2. If you are covered by Worker's Compensation, your employer has to continue to pay you while you recover.

Again, the answer is No. In Idaho, for instance, if you are hurt on the job and the injury requires you take time off from work to heal through surgeries, physical therapy, and the like, you can receive a monthly income known as Temporary Disability. If you are diagnosed with Total Temporary Disability, TTP, you are entitled to receive disability payments from the insurance company. The disability payments will NOT be the same amount as your monthly pay checks. Each state is different when it comes to compensation for TTP. Idaho law states that a worker who has a diagnoses of TTP is entitled to 67% of their wages prior to the accident which resulted in TTP. There is a waiting period prior to the TTP payments begin. If your TTP diagnoses continues beyond one year, your disability payments will also drop to 67% of the average income of all employee's in the state of Idaho at the time of the original injury.

3. Worker's Compensation will cover all cost associated with your recovery.

Cost associated with your recovery, such as physical therapy, surgeries, doctor visits, and rehab will be covered by Worker's Compensation insurance. However, if you do not agree with a diagnoses from your original doctor and wish to get a second opinion, the second opinion will most likely be at your expense.

4. You don't need to hire a lawyer

I think this may be the biggest mistake made by injured workers. Insurance companies are in the business to make money, therefore they do not freely hand out money that can be credited toward their profit margin at the end of the year.

It is wise to always talk to a lawyer, no matter how small you think the injury to be or how willing the insurance company seems to be to help you.

5. A Worker's Compensation settlement will give you a nice chunk of change.

This is another large misconception. Worker's Compensation Insurance is designed to help the worker recover from an injury and to save the employer money. Most Worker's Compensation claims consist of paying the required medical bills associated with the original injury and required recovery. If there is a Permanent Impairment you can receive a lump sum settlement once you have reached Maximum Medical Improvement. This is where is best to have a lawyer who knows the "schedules" used to calculate settlements. Each body part has been given a dollar amount along with a designated time line, such as an injury to arm is worth a certain amount of monies for a maximum period of 300 weeks. The dollar amount is set by the Worker's Compensation industry and varies state by state.

Remember "Schedules" were used in 2050 B.C. to calculate the loss of a body part.

6. If you have a permanent disability as the result of an on the job injury your employer will have to pay you your salary for the rest of your life.

For the most part this statement is incorrect. As stated in the paragraph above, schedules have been created giving each body part as well as type of injury an associated dollar amount. Now it is possible, with the help of an attorney, to recover some lost wages. Some states do have a pension plan for workers you have been injured and can no longer work. However, these pension plans are extremely hard to qualify for and require a severe injury. Most workers who ended up permanently disabled are forced to turn to Social Security Disability for continued cash flow.

7. Worker's Compensation settlements include monies for pain and suffering.

I have been asked this a million times in regard to my active Worker's Compensation Case and the answer is simply, No. Worker's Compensation is a no-fault insurance program designed to help an injure worker heal and hopefully and ultimately return to work as well has save the employer from tort claims. All payments made by Worker's Compensation are done so based on the type injury to certain body parts. There is no compensation for all the pain and suffering you will encounter as a result of an on the job injury.

Personal Experience With Worker's Compensation

In 2009 I received an on the job injury. It is what is known as a repetitive motion type injury. I won't bore with the details as to how the injury occurred. The injuries were to both my elbows which resulted in two different surgeries in both elbows.  After the surgeries the pain and associated loss of use has worsen. At my own expense, I saw a specialist in San Fransisco who stated that the surgeries did not correct the original injury and may have done more harm then good.

I have now had two different doctors review my medical records and both have come to the same conclusion. The original surgeon screwed up and caused permanent nerve damage to both my arms which has resulted in an 80 percent loss of use. Sounds like a perfect malpractice case doesn't it?
Well, it's not!. Worker's Compensation has the possibility of malpractice covered as well, let me explain.

If I choose to sue the original surgeon for malpractice and my Worker's Compensation has been settled and a lump sum as been awarded, any proceeds from the malpractice suit that are equal to or less then the lump sum payment, are to be paid directly back to the insurance company. The Workers Compensation insurance company will benefit from any malpractice suit I file.

If the Worker's Compensation case is ongoing and I choose to sue for malpractice any award form the malpractice suit will be deducted from any lump sum settlement due to me from the Worker's Compensation settlement.

My case has been going on now for almost three years. I have seen several doctors who have all said that my injury is pediment and will not get better. The doctor's have all said that I must, at all times, refrain from lifting anything over 5lbs, no gripping, no twisting, no repetitive motions, no typing (this blog is being written via Dragon Natural Speaking software) to name a few of the restrictions.

I have been told that I will never work again. There is no compensation in my settlement offer for the inability to continue work. I have now been placed on Social Security Disability which provides me with an income that is equal to 37% of what I was making when I was able to work. If there is a lump sum settlement at the end my case, it will not, nor can it by law, include pain and suffering or loss income for the rest of my life.

In Conclusion

Last year alone, there were over 760,000 Worker's Compensation cases filed in the state of California and over 60,000 in the state of North Carolina. Of these cases most resulted in the worker receiving the needed medical care to correct the injury and return to work. The problem lies with the percentage of injured workers that can no longer perform in such a way to allow them to support themselves or their family.

The aspect of Worker's Compensation insurance on a whole is a fantastic concept and one of the few legislation that actually works with the exception of the permanently impaired worker.  We need to tell our State and Federal Government "Let's Rethink That.

More and more people are concerned with the amount of people that receive government subsidies, the Entitlements, if you will. Social Security Disability is considered a government subsidy, even though you and I have paid into it as long as we have worked. Which brings up another question to consider. Is it right for a worker that has been injured on the job, due to no fault of his own, to have to use his/her money (SS/SSD) to support himself for the rest of his/her life? That is like telling the person that ran the stop sign and totaled your car, "Oh don't worry, we know its your fault my car is destroyed, but I have been saving money all my life that I may or may not need, so I will just use it to fix my car or get a new one, you just run along and continue running through stop signs and hurting people.