Workers’ compensation is in place to protect workers who are injured on the job. Ideally, the process should be straightforward: you suffer an injury, report it, and start receiving benefits. In reality, insurance companies do their best to reduce payouts, and the complex rules and regulations surrounding workers’ compensation work in their favor. Understanding the ins and outs of the system can make the difference between obtaining the benefits you are entitled to or having your claim rejected and having to pay for medical expenses out of your pocket.
What to Do in the First 48 Hours
What an injured person should do immediately following an incident at work has more legal ramifications than most people would believe. Both of the following items must be completed in the first 48 hours or so after the event: (1) submit a written report to a superior and (2) visit a doctor who will confirm that the injury is work-related without hemming or hawing in their first report.
These tasks are not just formalities. Insurers carefully examine the amount of time that passes between the injury and the notification of the injury. Gap them by even a couple of days, and the insurance company can argue that the fault lies elsewhere, or that the injury isn’t as severe as claimed. It’s difficult to refute a supervisor’s claim that an injured employee “never reported the incident” if the only notification was a verbal mention that an ankle was twisted.
No-Fault Doesn’t Mean Automatic Approval
One of the most misunderstood things about workers’ comp is how no-fault works. It makes sure you don’t have to sue your employer to get your medical bills paid if you get hurt on the job. It also helps make sure you’re compensated for lost wages or permanent injuries. But “no-fault” doesn’t keep the insurance company from saying the injury didn’t happen at work. And that is where they deny claims most often.
No-fault doesn’t create a magical barrier keeping your employer or the insurance company from saying you weren’t hurt in the course of employment in their effort to deny a claim. If you were on a lunch break, driving between job sites, or doing something outside your normal duties, the insurer will argue the injury falls outside the scope of coverage.
And if you suffer a repetitive stress injury or occupational illness, such as carpal tunnel syndrome or lead poisoning, you’re as much at risk as you ever were of being denied coverage due to pre-existing injury or sickness. Maybe even more so because insurance companies are likely to claim your current employer, who’s paying the bills for them, isn’t the responsible party because one of your past employers is.
When a Claim is Disputed, Delayed, or Denied
Disagreements over claims happen all the time. The insurer may deny liability, dispute the severity of your injury, or just delay a decision until it becomes economically advantageous to deny it. None of these outcomes need to be the end of your claim.
Nearly every scheme includes a formal dispute resolution process that enables workers to contest these decisions. It typically involves submitting a formal application to your local workplace safety regulatory body and supplying additional medical evidence. The devil is in the details here: every scheme has a statute of limitations that will quickly block you from disputing anything if you’ve failed to do so in the required timeframe, and some do things like limiting how many times you can appeal the same point.
Medically speaking, the perfect example is how often and how hard disputes are fought over mental health claims. About 9% of all serious workers comp claims result from mental health conditions, and the median time off work for one of these claims is well over 30 weeks, compared to roughly 7 weeks for a typical physical injury (thanks to Safe Work Australia for those stats). Despite that longer absence and similar disabled rate, stress claims are disputed at nearly 3 times the rate of physical injuries and have a significantly higher denial rate. It’s easier for insurers to challenge causation when the injury isn’t visible.
From your perspective, a dispute is best approached with already meticulously kept records from your treater, a well-documented work history that clearly attributes the cause to your job, and the addition of a specialist opinion that directly answers the excuse for the claim’s denial given by the insurer. This is also the point where self-management really starts to carry risk. The very first situation in which workers compensation claim lawyers will be of real tangible value is pretty much always in a contested dispute, when the insurance company has its solicitors billing up a storm to make sure their client doesn’t pay you a dime.
See also: How Auto Manufacturers Try to Avoid Lemon Law Claims (and How to Fight Back)
Statutory Benefits Versus Common Law Damages
There are two available categories for recovery from workers’ compensation, but it is highly important to understand which one suits your situation best.
Statutory benefits represent the basic level of recovery: cover the costs of medical treatment and pay a percentage of your lost weekly wages since you’re unable to work, and no one has to prove they were responsible for what happened. These payments are available through the insurance scheme following almost any work-related injury.
Common law damages work on a completely different basis. These negligence-based claims are pursued outside the statutory workers’ comp system and require you to prove that your employer breached its duty of care, which led to your injury. That means they knew or should have known about the risk but didn’t take steps to eliminate or reduce it. While the proof threshold is higher, a lot more is on the line, and there’s the opportunity to cover pain and suffering, the complete amount of future lost wages, and further expenses that are not included in statutory benefits.
Not every injury can back a common law claim. And generally, workers wouldn’t choose to go after damages through the common law route unless the injury is severe because the claim is more complicated and the damages not as significant. However, if it’s necessary to get your life back after a very serious injury, nothing else will be enough.
The IME Problem
At a certain stage of your claim, the insurer might ask you to undergo an Independent Medical Examination. The title is deceptive. The doctor who gives the IME is selected and paid by the insurance company, not by you, and the purpose of the assessment is seldom to vouch for your physician’s opinion.
IME doctors are often brought in to tell a patient they are fit for full duties when they are not, or to say an injury is due to pre-existing degeneration rather than the recent workplace trauma. Their opinions are taken as medical proof in the claims process, despite conflicting with six months of your treating doctor’s notes.
When you are booked for an IME, remember a few key points. You likely have the right to your own specialist report to rebut the insurance company’s findings. You need not resign yourself to the assessor’s verdict. And even after the report is issued, the findings will only be enforced if they are not properly disputed with additional medical evidence.
Returning to Work Without Giving up Your Rights
Employers must provide appropriate modified duties during your recovery. Return-to-work arrangements are not fraudulent in themselves, and well-designed ones serve as a form of rehabilitation, as keeping active and occupied can help in the recovery process.
The problem arises when the duties offered go beyond your medical restrictions. Some employers (and their insurers) use return-to-work offers strategically, giving out light duties on paper, but in reality, compelling the injured worker beyond the limits set by their treating physician. If you take up such a position, the aggravation of the injury and the fact that you were able to work in such a position would be used against you to reduce, or cancel, your compensation benefits.
Do not agree to return to work without first getting written approval from your doctor that it is within your capacity as restricted by your current medical state. If the position offered to you goes beyond your present restrictions, decline it in writing and explain why. It’s important that your limits, as set by your treating doctor, are the benchmark, and not the potential load your employer thinks you can handle.
The Lump-Sum Settlement Decision
Many people report being offered a one-off final redemption payment. This is the crunch time, when the pressure gets turned up to eleven and the demand to make a snap judgement can be overwhelming.
A one-off final redemption payment (or lump sum) is a single payment which closes the claim for good. Once you’ve signed the form, the insurer will typically be let off the hook for all future obligations: no more weekly payments, no more medical expenses, no more aid or appliances, regardless of how much your condition deteriorates or other circumstances change. For permanent injuries, the liabilities are even greater.
They don’t offer you a redemption payment out of the goodness of their heart, they do it because an ongoing claim is costing them more in compensation than a one-off final payment would. Therefore, a redemption offer, especially an early one, suggests that your claim could be worth much more than they’re saying.
Before you put pen to paper, you need to obtain an independent assessment of the real value of the offer to you over the long term and short term. The point of maximum medical improvement, when your condition has settled and no further improvement is likely, is important here, because this is when permanent impairment ratings are determined and long-term compensation is calculated. Sign on the dotted line before then and you’re likely cheating yourself out of a lot of money.
Knowing When You Need Legal Representation
Some cases are simple. An insignificant injury, a helpful employer, an insurance company that pays your claim without hesitation, some workers’ compensation cases don’t need an attorney.
But here’s what changes that calculus. Your claim gets denied. The insurance company questions your impairment rating. An IME report conflicts with your doctor’s. You’re offered a settlement before you’ve reached maximum medical improvement. Your boss wants you back at work and the job they’re offering is outside your restrictions.
In any of those situations, the claim is no longer a paperwork drill. Now you’re in a fight. The insurance company has experts working to minimize what you recover, and you need an equally experienced advocate to make sure you get what you’re owed.
The workers’ compensation system was built to protect injured workers. Whether it actually does depends largely on whether you know what to watch for.
