AM I ELIGIBLE FOR WORKMAN’S COMP?

By Keith T. Belt, Jr

If you are injured on the job or become ill as a result of your work, you may be entitled to workers’ compensation benefits. Workers’ compensation is an insurance program (required by state law) which provides payment to employees who suffer work-related injuries or illness. Eligible employees receive compensation for lost work and medical bills, regardless of who was at fault; in exchange, employees forfeit the right to sue their employers for the illness or injury with a few exceptions.

Typically, there are three basic eligibility requirements for workers’ compensation benefits:

The person or company you were working for must carry workers’ compensation insurance or be legally required to do so.
You must be an employee of that person or company.
Your injury or illness must be work-related.

In addition, there are some special rules for domestic workers, agricultural and farm workers, leased or loaned workers, casual or seasonal workers, and undocumented workers

Requirement One: Employer Must Be Covered By Workers’ Compensation

Not all employers are required to have workers’ compensation coverage. State laws vary, but an employer’s responsibility to provide coverage usually depends on how many employees it has, what type of business it is, and what type of work the employees are doing. For example, a few states require only employers with at least three employees to be covered, but most states don’t set a minimum. (In these states, an employer that has just one employee must provide coverage.) In addition, some states allow charities to opt out of the workers’ compensation system; other states do not. Generally speaking, the vast majority of employers are required to carry coverage; if your employer claims not to be covered by your state workers’ compensation statute, you may want to double-check with an attorney.

The federal government has its own workers’ compensation system. If you are a federal employee, you must look to that system rather than your state system for benefits. You can find out more about federal workers’ compensation at the website of the Department of Labor’s Office of Workers’ Compensation Programs, www.dol.gov/owcp

Requirement Two: You Must Be An Employee

Not all workers are employees when it comes to workers’ compensation eligibility. For instance, independent contractors are not employees and are not entitled to workers’ compensation benefits. Examples of independent contractors might include freelance writers or computer consultants. Many employers misclassify workers as independent contractors when they are really employees, however. If you have been denied benefits because the employer claims you are an independent contractor, you should consider consulting with an attorney.

Requirement Three: Injury or Illness Must Be Work-Related

If your injury or illness is work-related, then it is most likely covered by workers’ compensation. Generally speaking, if you were doing something for the benefit of your employer and were injured or became ill as a result, then it’s work-related. For example, if you hurt your back while loading boxes as part of your warehouse job, something at work falls on you, or you become ill due to exposure to hazardous chemicals at the work site, your injuries are clearly work-related.

Sometimes, however, this issue is harder to figure out.   This is especially true when the event causing injury was not clearly work related such as being injured on your lunch break, but while picking up a sandwich for your boss. Or maybe you were injured while commuting to work in the company car, walking to an off-site social event with coworkers, or playing softball at the company picnic. In situations like these — where the injury didn’t happen at work but has some connection to the job — it isn’t always easy to determine whether you are covered.   Likewise, if the injury is not well defined (clear inciting event), your employer may claim that the injury is not even work-related.  Repetitive stress injuries (see section below)  like carpal tunnel syndrome or certain back injuries may fall into this category.

Special Rules for Certain Workers

Even if you meet all three of the general eligibility requirements described above, you may not qualify for workers’ compensation benefits if you fall into one of the special groups of workers who are exempt from coverage under the workers’ compensation laws of some states. The most common exempt categories are covered below. If your employer claims that you fall into one of them and are therefore not entitled to benefits, you may want to speak to an attorney to make sure.

Domestic workers. A domestic worker is someone who works in a home — such as a housekeeper or a babysitter. Some states don’t require employers to cover these types of workers.

Agricultural and farm workers. The majority of states exempt agricultural and farm workers from workers’ compensation coverage. Not every person who works on a farm falls into this category, however. For example, a horse trainer is not considered a farm worker when it comes to eligibility for workers’ compensation benefits.

Leased or loaned workers. If you were loaned to an employer through an agency (for example, a temp agency), states differ on which company — the one you did the work for or the agency — has to provide workers’ compensation coverage for you.

Casual or seasonal workers. You are a casual or seasonal worker if you work only at certain times of the year or work only intermittently or sporadically. Some states do not require that casual or seasonal workers be covered by workers’ compensation.

Undocumented workers. Some states — including Arizona, California, Florida, Montana, Nevada, New York, Texas, and Utah — expressly cover undocumented workers in their workers’ compensation statutes. Other states, such as Idaho and Wyoming, expressly exclude undocumented workers.

Can I be treated by my own doctor and, if not, can I trust a doctor provided by my employer?

In some states, you have a right to see your own doctor if you make this request in writing before the injury occurs. More typically, however, injured workers are referred to a doctor recruited and paid for by their employers.

Your doctor’s report will have a big impact upon the benefits you receive. Keep in mind that a doctor paid for by your employer’s insurance company is not your friend. The desire to get future business from your employer or the insurance company may motivate a doctor to minimize the seriousness of your injury or to identify it as a preexisting condition. For example, if you injure your back and the doctor asks you if you have ever had back problems before, it would be unwise to treat the doctor to a 20-year history.

Do I have any other remedy against my employer, other than Workers’ compensation, for my work-related injury?

Yes. If you are injured because of some reckless or intentional action on the part of your employer, you can bypass the workers’ compensation system and sue your employer in court for a full range of damages, including punitive damages, pain and suffering, and mental anguish.

Workplace Injury: When You Can Sue Outside of Workers’ Compensation

If you’ve been injured in the workplace, you’ve probably been told that the only compensation you can receive will come from your employer’s workers’ compensation insurance. Although this is the general rule, there are many exceptions — situations in which you may be able to sue for damages caused by your injuries. For example:

If you were injured by a defective product, you might be able to bring a products liability action against the manufacturer of the product.

If you were injured by a toxic substance, you might be able to bring a toxic tort lawsuit against the manufacturer of that substance.

If you were injured because of your employer’s intentional or egregious conduct, you might be able to bring a personal injury lawsuit against your employer.

If your employer does not carry workers’ compensation insurance, you might be able to sue your employer in civil court or collect money from a state fund.

If a third party caused your injury, you might be able to bring a personal injury lawsuit against that person.

Although workers’ compensation can provide money and benefits to an injured worker, temporary disability and permanent disability payments are usually quite low and don’t compensate the worker for things like pain and suffering. Workers’ compensation also does not provide punitive damages to punish an employer for poor safety controls or dangerous conditions. That’s why it’s important for injured workers to understand their rights to bring a case outside of the workers’ compensation system.

The failure of conventional medical care to adequately address the problems of chronic neck pain, chronic low back pain, Fibromyalgia, Complex Regional Pain Syndrome (RSD/CRPS) and other intractable pain problems is well recognized and frustrating to all concerned.

The problem of chronic pain treatment is not unique to Workers’ Compensation patients, where you have the Patient’s needs at odds with the Insurer and Provider.

The Patient is striving to decrease pain and improve quality of life, which usually requires maximizing treatment.

The Insurer wants to minimize expenditures requiring a limitation of access to services.

The Provider of medical treatment strives to minimize the patient’s symptoms while working within the Insurer’s compensation boundaries.

In many cases the only recourse available to the patient to address his/her medical and long term needs rests with seeking outside legal consult to purse bring a lawsuit thereby achieving these goals. The patient should always retain a plaintiff attorney who has extensive expertise in litigation and has adequately resolved these types of issues in the past.

Are repetitive stress injuries covered by workers’ compensation?

They should be if you can prove that the disorder was caused by your employment.  This is becoming easier to do in that the number of workers suffering from a repetitive stress injury or disorder is on the rise — mostly because of the increased use of computers in the workplace. These types of injuries account for about 60% of all job-related injuries, and one in eight American workers have been diagnosed with a repetitive stress injury at one time or another.

What Kinds of Work Can Lead to a repetitive stress injury?

Computer keyboard use by office workersThe most common job-related repetitive stress injuries involve the upper extremities (wrists, elbows, and hands) due to repetitive keyboard activities. This is no surprise, considering office employees often spend hours at a time inputting or manipulating computer data, and if this is done without regard to proper ergonomics — or for too many hours without sufficient breaks — a nerve entrapment syndrome such as carpal tunnel syndrome may develop.

Bar code scanning by grocery checkers. Another occupation that has a higher-than-normal incidence of repetitive stress injuriesis that of the grocery checker. With the advent of scanners that read bar codes on grocery products, grocery checkers are required to pull or slide products across a scanner — hundreds or even thousands of times a shift. This repetitive activity often leads to the development of cumulative trauma injury to the upper extremities. The repetitive turning of the neck from side to side may also cause such an injury to the neck or shoulders. In addition, constant lifting activities may cause injury to the back.

Fixed-position activities. Occupations that require workers to stay in a fixed position for a long stretch of time (called “static posturing”) can also lead to repetitive stress injuries. Some examples of static posturing include prolonged sitting or standing, prolonged gripping or grasping, and holding a particular position for long periods.

Other work-related activities that lend themselves to repetitive stress injuries include:

Assembly line work
Polishing, sanding, and painting
Pipe setting
Jack hammering
Any overhead work
Butchering or meat packing
Sawing and cutting
Writing
Driving
Stocking shelves and packing
Massaging clients
Playing musical instruments
Mechanics

What types of injuries are caused by repetitive stress?

A familiar form of repetitive stress injury  is carpal tunnel syndrome, which causes swelling inside the tunnel that’s created by bone and ligament in the wrist. This swelling can put pressure on nerves passing through the tunnel — leading to pain, tingling, and numbness.

Other types of repetitive stress injuries include:

Tendinitis – tears in tissue connecting bones to muscles
Myofascial damage – tenderness and swelling from overworking muscle
Tenosynovitis – irritation of the boundary between the tendon and surrounding sheath, and
Cervical radiculopathy – compression of disks in the neck (common in workers who hold a phone on their shoulders while using computers)

Further damage that can be caused by prolonged untreated repetitive stress injuries

It is important that a worker who is suffering from repetitive stress injuries gets timely proper treatment and remediation/modification of their work environment or their injuries can worsen.  Untreated injuries can turn into reflex sympathetic dystrophy/Complex regional pain syndrome (RSD/CRPS).  Although there are no clear ways to alert a worker that they’re headed for RSD/CRPS, often, by the time an employee realizes that something is wrong, damage has already been done. For this reason, mindful employers and employees should pay attention to the following warning signs:

Pain. Workers may feel a sharp or dull and aching pain in their limbs, which may increase in intensity over time. Some employees feel this pain after working on the computer or cash register for a few hours, while others start to notice it only when they make certain movements outside of work — such as twisting a doorknob to open a door or raising their arms to wash their hair.

Tingling or numbness. Sometimes a worker’s hand or arm may have a tingling sensation, or the employee may experience numbness or tingling in certain fingers. This is a sign that nerve damage may have already occurred, so these symptoms should be taken seriously.

Fatigue. A worker who is experiencing pain may tire easily or may be unable to perform the same amount of work they have gotten done in the past.

Weakness or clumsiness. A loss of strength, dropping items, or having difficulty picking things up can be a sign of a possible RSD.

Keith (Kit) Belt, Jr
BELT LAW FIRM, P.C.
521 Madison St. SE, Suite 202
Huntsville, AL – Alabama 35801

Telephone: (205) 933-1500
Toll Free: (888) 933-1514


E-Mail Keith “Kit” Belt 
– KIT BELT

Web page: BELT LAW FIRM

Keith T. Belt, Jr. is an attorney with Belt Law Firm, P.C. (www.beltlawfirm.com) in Birmingham, Alabama, who is licensed in Alabama, Georgia, Tennessee, Florida, New Mexico, and Colorado. He has extensive experience in representing RSD afflicted persons and in handling RSD cases. He provides an RSD informational website www.rsdinfocenter.com that is intended to help RSD afflicted persons.

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