Apply for Workers Compensation

Workers’ compensation insurance ensures your medical bills and living expenses are taken care of in the event you are injured on the job. Formerly referred to as “workman's compensation,” this type of insurance is offered through an employer, but many individuals who have been hurt on the job encounter problems in receiving adequate compensation from their company. If you are injured on the job, you should seek immediate medical attention. Then, by learning a little background knowledge on how to get workers’ compensation benefits, you can make significant strides in guaranteeing that you are financially covered.

Steps

Satisfying Requirements

1. Check to see that you work for a covered employer. Generally, an “employer” is a person or organization that has employees. Most employers pay into a state workers’ compensation fund. Exceptions include:
   • Federal employees. Federal employees are not covered by state workers’ compensation systems. Instead, they are covered by the Federal Employees’ Compensation Act, which outlines its own method of processing and adjudicating workers’ compensation claims that is unique to federal workers.
   • Maritime workers (e.g., longshore workers) who are injured or killed on the job may be protected by the Longshore and Harbor Workers’ Compensation Act as opposed to state workers’ compensation laws.
   • Native American organizations are typically not considered “employers” for workers’ compensation claims.
2. Confirm that you sustained a qualifying injury. You can only draw workers’ compensation benefits if you sustained a qualifying injury. A qualifying injury is one that was “work related.” Generally speaking, a “work related” injury is one sustained in the course and scope of employment.
   • For example, if a delivery driver strains his back while picking up a heavy box during a delivery, then the injury arose out of employment because picking up heavy boxes was a contributing cause of the injury.
   • However, if a delivery driver strains her back while moving her child into a dorm room, then that injury falls outside the scope of employment.
   • Workers’ compensation rules will vary by state. Some states preclude workers from claiming work-related stress injuries. Some states, however, permit recovery for psychiatric stress injuries. You will need to talk to an attorney to find out precisely what rules apply to your situation.
3. Gather medical documents. You should hold onto copies of all medical reports and notes related to your injury. Create a binder and keep it in a secure location. These documents will be necessary later.
4. Understand what benefits are available. Depending on your injury, there are a variety of benefits that workers may be eligible to receive. The following is only a partial list:
   • medical care for injury or illness
   • temporary disability benefits to replace wages while you recover
   • permanent disability benefits intended to compensate individuals with a reduced working capacity
   • job displacement benefits to pay for job training
   • death or burial benefits
5. Calculate benefits. Generally, states use a formula to determine benefit amounts. There is usually a cap on the amount of benefits you may receive. Also the amount you’ll receive may depend on when you were injured and whether you are temporarily or permanently disabled.
   • Some states provide online calculators you can use to get a rough estimate of what your benefits might be. Colorado, for example, has a calculator available here.
   • Some states will reduce the benefit amount if the disability can be attributed to other, non-work factors that contributed to the worker’s permanent disability.

Filing a Claim

1. Report your injury as soon as it happens. When you become injured, let your employer know as soon as possible that you have been hurt. Your employer should give you the forms that you need to fill out.
   • You have a limited amount of time to inform your employer of the injury. If you miss the deadline, then you may lose your eligibility. The amount of time differs by state. Oklahoma workers, for example, have 30 days to report the injury. New Hampshire workers, by contrast, have 2 years.
   • To be safe, you should report as soon as possible—preferably within a week, unless you know for certain what your state deadline is.
   • If you are the member of a union, then you should tell your union representative of the injury as soon as possible. In many states, employers and unions have created labor-management “carve-outs” which are alternative systems for adjudicating workers’ compensation claims and processing benefits.
2. Follow up with your employer. You want to guarantee that your employer has filed the necessary claims and paperwork on your behalf. After you have completed the required formalities, check in with your employer to make certain they have indeed filed the claim.
3. Visit your doctor. A medical professional will likely have to verify your claims of injury, and he or she will also be required to fill out some standard paperwork. Double check these documents to make sure they specify that you were indeed hurt on the job and the injury occurred in the workplace.
   • Your employer may provide workers’ compensation medical care through a workers’ compensation health network. If so, you must visit a doctor in the network. If so, ask your employer for a list of providers.
   • Some states have a list of doctors who are prohibited from treating people seeking workers’ compensation benefits. Your employer should also have a list; if not, check with your state’s Department of Labor.
4. Follow the doctor’s advice. It will be most prudent to follow the doctor’s advice, so that no questions can be raised that your injury has been aggravated by your own conduct.
   • Be sure to attend all appointments and reschedule ones that you can’t make. Also take prescribed medicines and attend physical therapy.
5. Wait to hear from the claims administrator. After your employer files the paperwork with its insurer, you must wait to find out whether your employer’s insurance carrier has accepted or denied your claim.
   • If you have been denied benefits, then you will receive a denial letter. If you are awarded benefits, then the letter should specify what next steps you must follow to set up payments.

Appealing a Denial

1. Read your denial letter. The letter will have at least 3 pieces of critical information: why you were denied, a description of the appeals process, and deadlines for bringing an appeal. You must identify these pieces of information and underline them.
   • Workers’ compensation claims are denied for a variety of reason. The most common are: you did not report the injury within the required time, the injury is not severe enough, or the injury was not sustained on the job.
   • Pay particular attention to deadlines. You often will be given only a month to bring the appeal, if not less. If you want to appeal, you should begin immediately.
2. Hire a lawyer. Being denied workers’ compensation benefits when you are injured is a stressful experience, and bringing an appeal only adds to the stress. The appeals process is complicated, varies by state, and requires that you learn confusing rules of evidence, which could take months. Hiring an experienced workers’ compensation lawyer can streamline the process and bolster your appeal.
   • Bring a copy of your denial letter as well as all of your medical information to the lawyer, who will need copies of this information for your appeal. And promptly gather any other information your attorney needs. Delays will only delay the appeal process.
   • Private attorneys will work on a contingency basis. This means they are paid only if they win your case. Generally, the attorney will take around 20% of your benefit amount. The amount is often capped by state law.
   • Under a contingency arrangement, you will still have to pay for costs. Typical costs include filing fees, expert witness fees, and money spent on photocopying and mailing. Try to get an estimate of these costs upfront.
3. Find the form to appeal. This goes by various names, depending on the state. In Michigan, it is called an “Application for Hearing.” In Arizona, you must file a “Hearing Request form.” Your denial letter should tell you where to locate this form.
   • Federal workers may appeal in three ways: by requesting a hearing, by appealing to the Appeals Board, or by applying for reconsideration.
   • Each federal appeal requires different things from the employee. In a hearing, you simply request that the hearing representative review the claim. The hearing representative may agree to give you benefits or confirm the initial decision. When appealing to the Employee’s Compensation Appeals Board, you may not provide new evidence; rather, the Appeals Board makes a determination based on the claim’s record. With a Request of Reconsideration, you and your attorney submit either new evidence or new legal arguments.
4. File the form before the deadline. You should always send by certified mail. In this way you will have a receipt for your records.

Preparing for Your Trial

1. Read the answer. Your employer and its insurance company will probably respond to your appeal and explain why your claim should be denied. The answer provides a sneak peek as to what their argument will be on appeal.
   • Although an insurance company may the party that ultimately pays out any compensation benefits, your employer always retains a stake in the outcome of your case because it will incur higher insurance premiums if you win. Therefore, your employer will likely be involved at all stages: it will answer your complaint, attend the trial, and have a representative testify.
   • Understand the terminology. In other areas of law, a “trial” and an “appeal” are distinct events. For example, in the criminal arena, no witnesses appear at the appeal. Instead, an attorney writes a legal brief and no new evidence is admitted. However, in the workers’ compensation arena, the “appeal” is like a trial: witnesses are questioned and evidence is presented to an administrative law judge (ALJ) or to an appeals board.
2. Undergo a medical evaluation. You may be required to undergo an independent medical examination (IME). Your employer or its insurance carrier may request it. The purpose is for an independent physician to identify the cause of the injury as well as the extent of the disability.
   • In some states, the workers’ compensation claims board can request an IME. If you have an attorney, then the IME is scheduled per agreement between the insurance company and your attorney.
   • Though you and your lawyer can object to the IME, an objection will often be interpreted as a concession that the injury isn’t as severe as you are claiming.
   • Try to have a friend or family member go with you. By having someone go with you, you will have a witness in case the doctor testifies that you said or did something that you didn’t do.
3. Research prior published decisions. Some states publish written appellate decisions involving workers’ compensation claims. Kansas, for example, has a database. You should look to see if your state has a database of decisions.
   • Read up on other cases similar to yours. For example, if you were denied workers’ compensation benefits because your condition was “preexisting,” then you could research any prior appellate decisions that discussed preexisting conditions.
   • A case where an appeal was granted in a factually-similar case is strong evidence in your favor that your claim is valid.
   • Your attorney will be skilled in researching prior decisions. Ask her for copies of any decisions so you can read them.
4. Gather relevant evidence. At the trial, you will need to present evidence that supports your claim to have been injured on the job. Typically, the most effective witnesses will be medical professionals who can testify to your injuries and co-workers who may have seen the injury occur.
   • Your state law may or may not provide for subpoena power. If it does, then you can get a blank subpoena form from your workers’ compensation board. Serving a subpoena is a way to assure a witness’s attendance.
   • Fill in the subpoena form with the witness’s name and address. Then fill in where the witness is commanded to appear (i.e., where the hearing will be held) as well as the date and time of the hearing.
   • Mail the subpoena using certified mail. Give the witness plenty of time (at least several weeks) to rearrange her schedule in order to attend.
5. Prepare to testify. You will be called to testify about the injury: how it happened and the extent of your disability. To make sure you are an effective witness, you should:
   • Ask your attorney to do a practice run. Have your attorney pepper you with hard questions to familiarize you with the process.
   • Review your summary of the event. Shortly after being injured, you should have jotted down what happened and how. Review this information to refresh your memory.
6. Attend a pre-trial hearing. Generally, the first appeal is held before an administrative law judge (ALJ) or a state appeals board. The ALJ may call you in for a pre-trial hearing. The purpose of the hearing is to make sure the parties are prepared for trial.
   • If you have any questions, you should ask them at that time. For example, you should ask if the other side has turned over copies of their witness list or the medical reports they intend to use.

Attending the Trial

1. Arrive promptly. You do not want to be late. If you are unfamiliar with where the trial is being held, then give yourself an extra hour to find parking and go through any security.
   • Trials are rarely held at court houses. Rather, they are usually held at the offices of the workers’ compensation board.
   • Dress neatly. Look professional but comfortable. You do not have to wear a suit if it makes you feel awkward.
2. Deliver an opening statement. The opening statement will be less formal than in a trial before a jury. Here, the attorneys will clarify for the judge what issues the parties have agreed on (such as your date of employment) and what issues are in dispute (such as whether you were injured on the job).
3. Testify. You undoubtedly will be called to testify. After you swear an oath, your lawyer will ask you questions about how the injury happened. Speak loudly and to the judge.
   • You should have practiced your trial testimony with your attorney. She cannot ask you leading questions (i.e., questions that contain the answer). But she can ask more general questions: “Where were you on the morning of…?” “Did you hurt yourself?”
   • You will also be cross-examined. If you read you’re the answer, then you should have a good idea of what questions the other side will ask. For example, if your employer or the insurance company claims you were injured while on vacation, you should anticipate detailed questions about where you went and what you did.
4. Deliver a closing argument. Your lawyer should briefly explain how the evidence presented supports your legal right to workers’ compensation benefits. He will also rebut the other side’s arguments.
5. Await the decision. The ALJ or appeals board will typically draft a written decision. You will receive it by mail.
   • Sometimes an appeals board will review the ALJ’s written order and either adopt its finding or send it back for reconsideration.
6. Discuss next steps with your lawyer. If your claim is denied at the hearing, then an appeal of the denial is possible. Discuss whether or not another appeal is worthwhile and whether your attorney will handle it.
   • Appeals can also be handled on contingency. However, you may have to sign a new client agreement, which redefines the scope of the representation.

Tips

• Don’t worry if the IME physician is abrupt or uninterested in your condition. Examinations often run only 10 minutes. Any bad medical evaluation can be challenged at the trial.
• Treat everyone with respect at the trial. The judge will form a strong impression of your credibility simply from how you comport yourself.
• Make copies of all your documentation. Acquiring workers’ compensation from a job entails huge amounts of paperwork; it is possible that something will get lost in the shuffle. Photocopy or request photocopies of every form you fill out, every claim you make, and every description of the accident you write. Also obtain copies of your medical records and, if possible, any forms your doctor completed in regard to your condition.

Warnings

• Be prepared for a potential struggle. Workers compensation claims are very costly to employers, and many employers will go to great lengths to avoid paying out to an injured employee. In learning how to get workers compensation from a job, understand that this is a legal process and will take a fair amount of time and energy. Your relationship with your employer may become adversarial.

Related Articles

• Prepare for a Workers Compensation Audit
• Write a Compensation History

References

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