Workers' Compensation: Questions and Answers

In every state but Texas, employers are required to purchase insurance for their employees from a workers' compensation insurance carrier. In some states, larger employers with enough assets are allowed to self-insure or act as their own insurance companies, while smaller companies are exempt. A smaller company is typically defined as one with fewer than three or four employees.

When a worker is injured, their claim is filed with the insurance company or self-insuring employer. The insurance company or self-insuring employer pays medical and disability benefits according to a state-approved formula. Unless they fall within limited and exempt categories, employers without workers' compensation insurance are subject to fines, criminal prosecution, and civil liability.

See FindLaw's Workers' Compensation Basics section for additional articles.

Penalties

There may be instances where you may sue your employer, while workers' compensation is considered the exclusive remedy for workplace injuries in most states. This is why failure to provide workers' compensation insurance coverage can result in steep sanctions against the offending employer. Examples of such sanctions are:

• Fines
• Criminal prosecution
• Personal liability of the employer for any workers' compensation benefits due injured workers
• An employee's exercising the option to sue the employer rather than file a compensation claim

Duties

In addition to providing workers' compensation coverage, in most states, employers must perform some, if not all, of the following duties:

• They must post a notice of compliance with workers' compensation laws in a conspicuous place at each job site.
• Employers must provide immediate emergency medical treatment for employees who sustain on-the-job injuries.
• They must furnish further medical attention if an injured worker is unable to select a doctor or advises the employer in writing of a desire not to do so.
• Employers must complete a report of the injury and mail it to the nearest workers' compensation board office. At the same time, a copy of the report should also be mailed to the employer's insurance company. An employer who refuses or neglects to make an injury report may be guilty of a misdemeanor that is punishable by a fine.
• They must make a written report of every accident resulting in personal injury that causes a loss of time from regular duties beyond the working day or shift when the accident occurred. They must also make a written report for every accident resulting in personal injury that requires medical treatment beyond first aid or more than two treatments by a doctor or any other persons rendering first aid.
• Employer must comply with all requests for further information regarding injured workers. These requests will come from the workers' compensation board or the insurance company. Examples of what the employer might be requested to send include the employee's earnings before and after the accident, reports of the date of the employee's return to work, or other reports that may be required to determine the employee's work status following the injury.

Employer's Duty Not to Retaliate

Although workers' compensation laws provide remedies to injured employees, they also protect employers. They provide such protections because these laws are designed to be the only remedy that injured employees may use against their employers. Even so, employers often appear to frown on employees who file workers' compensation benefit claims. Some employers blatantly discriminate against employees that file such claims.

Most states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers' compensation laws. In this way, these states protect employees who seek remedies for their job-related injuries. At the same time, most states also allow employees to bring civil actions against their employers for "retaliatory discharge."

If an employee believes they have been discriminated against or discharged in retaliation for exercising their rights under workers' compensation laws, they may have a claim against their 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 they were 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.

Confused by the Workers' Compensation Process? An Attorney Can Help!

Workers' compensation claims involve several different parties and can get quite confusing for non-lawyers. If you believe your employer is not taking care of its workers' comp responsibilities, you may need to assert your rights through legal action. To get a sense of where you stand and what your next moves should be, it may be a good idea to speak with a workers' compensation lawyer near you.