Workers’ compensation is a benefit that is available to nearly all employees who suffer an injury that arose out of and in the course of their employment. Workers’ compensation benefits include the payment of medical bills, job training, temporary total disability benefits, permanent partial disability benefits, total disability benefits, and death benefits if the employee died as a result of a work-related injury. Work related injuries or illnesses that trigger workers’ compensation coverage in Kentucky include:
Almost any kind of physical injury or disease is covered by workers’ compensation. An injury or condition you already had will not qualify, unless it was aggravated or made worse on the job.
The workers’ compensation law provides for specific amounts that are awarded for different injuries. In addition, the law authorizes payment of the medical bills that relate to your injury, as well as payments to make up, at least in part, for the wages you lose because of your injury. In some cases, you may be able to receive money to help you train for a new job.
Your employer is required either to carry workers’ compensation insurance, or to be self-insured. Your employer’s insurer is the one responsible for making payments to you.
Workers’ compensation insurance benefits provide cash and medical care for workers who become disabled because of an injury or sickness suffered because of their job. If death results, benefits are payable to a worker’s surviving spouse and dependents.
In most states, employers are required to purchase insurance for their employees from a workers’ compensation insurance carrier. In some states, larger employers who are clearly solvent are allowed to self-insure, or act as their own insurance companies, while smaller companies (with fewer than three or four employees) are not required to carry workers’ compensation insurance at all. When a worker is injured, his or her claim is filed with the insurance company, or self-insuring employer, who pays medical and disability benefits according to a state-approved formula.
Unless they fall within limited, exempt categories, employers without workers’ compensation insurance are subject to fines, criminal prosecution, and civil liability.
Failure to provide workers’ compensation insurance coverage can result in:
In addition to providing workers’ compensation coverage, in most states, employers must perform some, if not all, of the following duties:
Although workers’ compensation laws provide remedies to injured employees, they also protect employers, as they are designed to be the only remedy that injured employees may seek from their employers. Even so, employers often appear to frown on employees who file workers’ compensation benefit claims, and some blatantly discriminate against such employees. To protect employees from employers who discriminate against, harass, or unjustly terminate injured employees, many states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers’ compensation laws, and allow employees to bring civil actions against their employers for the tort of “retaliatory discharge.”
If an employee believes he or she has been discriminated against or discharged in retaliation for exercising rights under workers’ compensation laws, he or she may have a claim against his or her employer for retaliatory discharge. In a retaliatory discharge suit, the employee must convince a judge or jury that it was more likely than not that he/she was wrongfully terminated. However, the employee does not have to prove that the workers’ compensation claim is the sole reason for the discharge. The test is usually whether the employer’s action is rooted substantially or significantly in the employee’s exercise of rights under workers’ compensation laws.
Besides termination, retaliation may take the form of more subtle types of discriminatory treatment, such as demotion or salary reduction. Injured employees are protected from discriminatory conduct immediately after an injury and before a formal workers’ compensation claim is filed. An employee’s cause of action may be successful even though all the employee did was give notice to the employer of a claim.
Whether a state or municipal employee is covered by the state’s workers’ compensation statutes, or by a different system, depends on the specific provisions of each state’s laws. In general, state workers’ compensation statutes specifically set forth which types of employees are eligible to receive benefits under the state system, and which types of employees are not.
Most state statutes prohibit payment of workers’ compensation benefits to “officials” of the state. However, who is considered an “official” can often be questionable. As a general rule of thumb, if an individual exercises some portion of the state’s sovereign power, he or she will be considered an official and therefore ineligible to collect workers’ compensation benefits.
A common issue arises regarding the right or ability of police officers and firefighters to recover workers’ compensation benefits. These individuals do not fit squarely into the definition of an employee nor can they be considered “officials.” Many state statutes, in recognition of this issue, have specific provisions within their acts to clarify that workers’ compensation benefits, rules, and requirements will apply to these individuals.
In order to determine whether a particular state or municipal employee is covered by the state’s workers’ compensation scheme, an attorney should be consulted to carefully examine the particular state’s laws.
In general, federal employees do not receive workers’ compensation benefits from their employers under state systems. Instead, federal employees have separate systems through which they can seek to recover benefits for work-related injuries.
The Federal Employee’s Compensation Act (FECA) controls the rights of most federal employees to obtain workers’ compensation benefits. FECA allows for the recovery of benefits when a federal employee is either disabled or killed as a result of an injury “sustained while in the performance of duty.”
Special types of employees may bring claims for benefits under other, specific federal acts. For example, the Federal Employer’s Liability Act was enacted to provide recovery for injuries sustained by employees engaged in interstate transportation, such as railroad workers. The Jones Act provides for seamen in the case of work-related injuries, and the Longshore and Harbor Workers’ Compensation Act provides similar benefits to longshoremen and others who are engaged in maritime activities on navigable waters. Other statutes that play a role in the compensation of certain employees include: The Outer Continental Shelf Lands Act, the Death on the High Seas Act, and the Defense Base Act (for employees working on defense bases or public works projects outside the U.S.).
Whether an employee falls under the protection of FECA, or another act designed to protect other specific categories of employees, will depend on the nature of the employment and a close examination of the facts of the particular case. Therefore, it is advisable to discuss the laws that might govern your workers’ compensation claim with an experienced workers’ compensation attorney.
Usually, your employer, or your employer’s workers’ compensation insurer, selects the doctor you will see. If you are unhappy with the doctor or other health care professionals selected, you may have the right to request treatment from someone else.
Most states do not tax workers’ compensation benefits. The U.S. government does not tax workers’ compensation benefits.
Most states do not tax workers’ compensation benefits. The U.S. government does not tax workers’ compensation benefits.
The workers’ compensation laws provide an opportunity for a hearing if you and your employer, or your employer’s insurer, can’t resolve a dispute. While it is not required, it is a good idea to be represented by an attorney at this hearing.
The answer to this question is, in most cases, no. Workers’ compensation systems were established as a trade-off in which employees gave up the right to sue employers in court for their injuries, in exchange for the right to receive workers’ compensation benefits regardless of who was at fault for their injuries. Most employers are required by law to provide workers’ compensation insurance for the benefit of their employees. In exchange for providing that insurance, employers are protected from defending personal injury claims brought by employees in civil actions.
Nonetheless, workers’ compensation does not prohibit an employee from bringing a claim against his or her employer for an intentional tort, or any injury sustained due to intentional behavior on the part of an employer seeking to harm an employee. Also, an employee may sue his or her employer for non-physical injuries such as emotional distress or discrimination.
Additionally, in most states, employees are free to pursue third parties (entities other than the employer) whom they feel are responsible for their work-related injuries. For example, an employee who believes his or her injury was caused by defective equipment may consider filing a lawsuit against the manufacturer of the equipment. In many states, an employee who is successful in recovering damages from a third party may either have to pay a portion of the recovery back to the employer to repay the workers’ compensation benefits that were received, or the employer and its insurer may be allowed to become a party to the lawsuit and seek to recover the value of the benefits paid on behalf of the employee.
Usually, workers’ compensation claims are pursued through the administrative process and not through the court system. Only once the administrative process has been exhausted, and the parties have taken every step they can to settle a claim, including attending an administrative hearing, may they appeal the compensation award to a workers’ compensation appeal board or court.
In many states, if a party still takes issue with the determination of the workers’ compensation appeal board or court, redress may then be sought in the civil court system. This process is specifically controlled by each state and, if you haven’t already, you should retain an attorney familiar with the workers’ compensation system in your state to handle your claim.
If you are unsure whether you have a workers’ compensation claim or a civil claim against your employer, you should consult with an experienced attorney. You may also wish to contact the workers’ compensation commissioner’s office in your state.
You still have the right to receive workers’ compensation benefits. In addition, you may be able to bring a separate lawsuit against the party who caused your injuries. It is important to consult with an attorney with experience in this area of the law, to learn exactly what your rights are in this situation.
The word “rehabilitation” in the area of workers’ compensation has two very different meanings. When most people think of rehabilitation, they think of physical therapy or rehabilitative care aimed at overcoming an injury and regaining functionality. Did you know that there is also vocational rehabilitation? In many states, injured workers who cannot return to their former employment are entitled to this type of rehabilitation at the expense of their employer’s workers’ compensation carrier.
The amount and type of vocational rehabilitation provided to injured employees varies from state to state. Some of the services to which an injured worker may be entitled include:
The actual vocational rehabilitation benefits to which an injured employee will be entitled are determined not only by the employee’s specific situation, but also must comport with statutory and regulatory limitations.
In many states, the only specific employee responsibility in connection with vocational rehabilitation is that the employee must “accept” it. Inherent in this responsibility is the requirement that the employee cooperate with vocational rehabilitation efforts and make a valid attempt to return to suitable employment. Other states have different types of requirements. In certain states, for example, an injured employee is not required to participate in either physical rehabilitation or vocational rehabilitation.
Employers (or their workers’ compensation carriers) also have statutory and regulatory responsibilities which they must fulfill. For example, in some states, an employer must offer rehabilitation-counseling services to any employee who has an injury that has resulted in 60 days of lost time from work. The offer must be made within five days after that threshold has been reached. However, if the employee sustained a back injury, they only need lose 30 days of work in order for the employer to be required to offer rehabilitation counseling. In other states, however, an employer must offer vocational rehabilitation within 120 days if the injury resulted in a loss of “suitable gainful employment.”
In some states, an employer may be required to pay for items such as tuition, living expenses, room & board, child care expenses, and travel expenses, in addition to regular wage loss benefits while an employee is participating in certain vocational rehabilitation programs. In some states, only specifically qualified individuals are allowed to provide vocational rehabilitation assistance to injured workers. For example, only individuals who are Certified Rehabilitation Counselors (CRCs), Certified Disability Management Specialists (CDMSs) or Certified Case Managers (CCMs) may provide vocational rehabilitation assistance to injured employees in some jurisdictions.
The laws regarding the responsibilities of both employers and insurers vary by state. If you were injured on the job, ask an attorney to review your state’s laws and explain your rights and responsibilities to you.
Under most workers’ compensation systems, an injured employee is entitled to the following types of benefits:
When an employee returns to work after being injured, if the employee receives wages equal to or greater than he or she was earning prior to the injury, then it is likely workers’ compensation benefits will be stopped. If, however, the employee is still experiencing a wage loss due to his or her injury, he or she may continue to receive wage loss benefits, although the benefits will most likely be for a lesser amount.
Most states provide different types of wage loss benefits. Two types of benefits that may be available are “temporary partial” and “temporary total” benefits. Temporary partial disability benefits are payable to an employee who has experienced a work injury and is temporarily disabled, but is still able to earn some wages despite a temporary disability. These benefits are generally payable based on a percentage difference between the employee’s pre and post-injury earnings.
Temporary total disability benefits are generally payable to injured employees who are temporarily prohibited from working, in any capacity, as result of the work injury. These benefits are, in some jurisdictions, payable based upon a percentage of the pre-injury wages of the injured employee.
Temporary partial and temporary total benefits are by no means an exhaustive list of the types of benefits that employees may be entitled to, and they may not be available in every jurisdiction or may not be payable for the type of disability sustained. They are described here merely as an example of the type of wage benefits that are available and how a return to work may affect the ability to obtain those benefits.
Remember, if there is any change in an employee’s work status while he or she is receiving workers’ compensation benefits, the employer or the insurer should be notified immediately, as well as the employee’s attorney. Failure to do so may have adverse effects on the employee’s right to receive benefits.
Links to information on occupational health and workers’ rights.
Bureau of Labor Statistics
Provides statistics and articles on injuries and illnesses at work.
EGO Ergonomics Manual
A straightforward guide to proper ergonomics, from Carnegie Mellon University.
Job Accommodation Network (JAN)
A free consulting service from the US Department of Labor that provides information about job accommodations, the Americans with Disabilities Act (ADA), and the employability of people with disabilities.
Legal Information Institute
Overview of workers’ compensation law, from Cornell Law School
National Institute for Occupational Safety and Health (NIOSH)
Provides comprehensive information on workplace injuries.
Occupational Safety and Health Administration (OSHA)
Provides workplace warnings and safety tips.
US Department of Labor
Office of Workers’ Compensation Programs (for Federal workers).
The law firm of Dan F. Partin has offices located in Lexington, Kentucky, Harlan, Kentucky, Middlesboro, Kentucky and represents clients throughout the entire state of Kentucky. Whether you are dealing with a personal injury resulting from a car or truck accident, motorcycle accident, tractor trailer accident or have questions concerning workers’ compensation, we ensure that our clients receive the guidance, counsel and legal representation that they need in order to get the results that they deserve. Call Dan Partin now at (859) 888-8888. It’s just that easy!