How can you make sure you get the workers’ compensation you deserve? Here are 10 things to know:

1. Report Every Injury or Illness

Always report any work injury or illness your doctor says is due to your job. “It’s not enough to report it to the guy working next to you,” says Tricia Kagerer, a workers’ comp expert and vice president of risk management for Jordan Construction in Dallas.

Report the injury or illness to the HR department, your supervisor or the risk-management department when it occurs, she says. “You should get an incident report to fill out, and they should help you obtain medical treatment,” she says.

If you don’t get paperwork or a call from an insurance adjuster, something is wrong. Follow up with your boss.

2. Visit the Right Medical Provider

If your injury is an emergency, you’ll go where the ambulance takes you.

In a nonemergency, your employer may direct you to a particular hospital, clinic or doctor. Go where your employer tells you or your bills may not be covered by workers’ compensation, Shafer says.

3. Tell the Doctor or Hospital Employees You Were Injured on the Job

When you’re filling out the paperwork at the hospital or doctor’s office, check the box that asks if your injury happened at work. That gets your medical bills sent either to the workers’ compensation insurance company or your employer, rather than to you.

If you choose your own doctor, be sure she’s approved or certified to do workers’ compensation claims and has agreed to the workers’ comp pay schedule.

4. Make Sure Your Medical Records Include Everything About Your Injury

Your medical records should mention the history and circumstances of your injury or illness and list every body part involved — workers’

compensation won’t pay to treat body parts that aren’t listed, says Ed Scheine, a Hauppauge, New York, workers’ compensation attorney.

5. Ask Your Employer to Explain Its Workers’ Comp Coverage

Your employer most likely has a brochure explaining the workers’

compensation program. Get it and read it. Next, find your state’s workers’

compensation office and check out the information on its Web site, says Bryan Thomas, CEO of Cannon Cochran Management Services, a Danville, Ill., risk-management and claims administration firm.

6. If Your Employer Says You’re Not Covered Because Your Accident Was Your Fault, It Might Be Lying

Workers’ comp is no-fault insurance, so you’re covered even when the accident is your fault. “If you’re at work and you slip and fall on a banana peel, they can’t deny your claim because you should have seen the peel,” Kagerer says.

However, there is a limit to how stupid you can be. If horseplay is involved — say, a coworker dares you to jump out the window and you break your leg doing it — workers’ compensation won’t cover you in some states.

7. Stay Sober at Work

In a similar vein, if you get high on your way to work and then slice your finger off later that day, you’ll be paying your own medical bills. Most employers require a drug test after an accident; if you test positive, your claim will be denied.

8. You May Not Need an Attorney to Get What You’re Owed

States set workers’ compensation payouts, so there’s not a lot of leeway for you to get more (or less) than you deserve. In New York, for example, a thumb is worth 75 weeks of pay. If your thumb is 10 percent disabled in a workplace accident, you get 7.5 weeks of disability. “The value system is built into the law, and the doctor decides how permanent your injury is,” Scheine says.

A workers’ compensation attorney will take at least 20 percent of your settlement, so don’t hire one unless you think you’re being shortchanged over a permanent disability, have a complex claim or were unfairly denied coverage of your medical bills.

Even then, most states have a workers’ compensation ombudsman who can help you get what you deserve from the system.

9. Big Payouts Are Rare

In Texas, the maximum workers’ comp benefit for lost pay is $725 a week, Kagerer says. That’s fine for a minimum-wage worker, but it doesn’t come close to replacing a chief financial officer’s salary.

10. (Most) Cheaters Eventually Get Caught

Cheating is so common in workers’ compensation that there’s a term for it — malingering — as well as fraud divisions to look for it. “[Malingerers] get caught because insurers and employers make home visits, do surveillance and see if other companies are contributing to your Social Security,” Shafer says. “It may take awhile, but chances are pretty good you’ll get caught, and if you do get caught, it can mean jail time.”

I’ve been injured, now what?

If someone else is more at fault for your injury than you are, you may make a claim against that person or business and their insurance company, if any. The type of accident and the cause of the accident may affect whether you are entitled to compensation, as in the following examples:

• Motor vehicle accidents: Fault or “negligence” is determined by traffic regulations and which driver’s carelessness contributed most to the accident and injuries, including your own conduct such as failure to use seatbelts.
• Commercial accidents (such as in stores): Injuries are compensable only if caused by an unsafe condition that the owner should have known of, appreciated, and corrected before the accident.
• Home/farm/apartment/recreation injuries: Renters, owners, or residents may be found liable for injuries they cause by negligent maintenance, oversight, or attacks by pets; however, property owners who permit others to use their land without charge for recreational purposes may be completely immune to any claim for unsafe conditions, however flagrant.
• Government employees and premises: Injuries caused by negligent public employees or unsafe conditions will be compensated only in limited circumstances and are subject to stringent notice and claim requirements. State, federal, and local governments are given broad latitude to determine most matters involving public safety, including the design and maintenance of roads, parks, and facilities.
• Workplace injuries: Injuries at work generally are covered by worker’s compensation benefits which compensate for medical expenses, lost wages, and permanent impairments, without regard to fault by anyone. If the accident was caused by someone other than the employer or a co-worker, a fault-based claim can be made that could include damages for pain and suffering in addition to the worker’s compensation benefits.
• Intentional injuries: Injuries inflicted on purpose by any means are not usually covered by the guilty party’s liability insurance, although the responsible party may be personally liable for such harm.
• Other accidents: More complicated rules determine if injuries caused by dangerous products, the accumulation of ice or snow, faulty professional services, or public utilities will be compensated. In addition, users of firearms, dog owners, and operators of restaurants, hotels, and public transportation may be liable for injuries they cause because the law imposes special responsibility for these hazards which your attorney can explain in more detail.

Which insurance policies will cover my costs?

Most automobile, homeowners and commercial liability policies contain “medical payments” coverage for medical expenses incurred after an accident without regard to fault. This coverage in auto policies applies to the insured family members and vehicle passengers, while homeowners and commercial policies cover only “others” or visitors to the premises.

Health, worker’s compensation, disability insurance carriers or HMOs usually will pay benefits arising from accidental injuries. However, if your claim against another person succeeds, then the insurance provider will probably require you to repay these benefits to them.

If the accidental injury is primarily your own fault, then only health insurance (such as through your employer), worker’s compensation, or medical payments coverage may apply.

Injuries caused by uninsured drivers are compensated by your own “uninsured motorist” coverage (if you have it) applying the same general rules as insured drivers.

Should I hire a lawyer?

If you know for certain that your injury is a minor one that will not result in time lost from work or school or substantial medical care, then you may want to settle it yourself in small claims court. (In Wisconsin, this court handles claims up to $5,000.) Of course, insurance claims adjusters generally try to settle claims inexpensively and on terms favorable to the insurer. If you have been seriously injured or are unsure as to the outcome of your injury, then an experienced personal injury attorney should always be consulted before you give any statements or sign papers of any kind and as soon after the injury as possible. You should be able to discuss your claim and the potential fee arrangements with your attorney before you commit to legal costs.

Personal injury attorneys usually handle claims on a “contingent” or percentage basis depending on the type, difficulty, and expense of the case. Contingent fees can range from 20 percent for worker’s compensation claims to as much as 40 percent for difficult or complex cases. Contingent fee agreements must be in writing and include provisions for out-of-pocket expenses, which typically are paid by the attorney but paid back from any recovery, in addition to the fee for the attorney?s services.

How long do I have to decide?

The law requires you to settle your claim, start a lawsuit, or give special notice within limited times after the injury. The time you have to take action depends on the person or entity that caused your accidental injury. Some Wisconsin statutes of limitation and notice requirements illustrate the complexity and variety of these rules:

• Injury generally – 3 years
• Claims against city/county/school employee – 120 days
• Claims against state employed physicians – 180 days
• Claims under a fire insurance policy – 1 year
• Worker’s compensation claim – 2 years notice to employer, 12 years to file claim.

If you have any doubt about the statute of limitations or notice required you should consult an attorney. Other states may have shorter or more stringent limitations.

What is my claim worth?

A claim is valued and usually settled based upon an estimate of what a jury would likely regard as fair and reasonable compensation given the severity of the injury and the effects of the accident on your life, as well as the probability that a recovery against the wrongdoer is warranted. In addition to medical expense and wage loss, you are entitled to money damages for “personal injuries,” including pain, suffering, and loss of enjoyment of life. Your attorney may point out additional damages authorized in special cases such as dog bites or flagrant misconduct.

Severe injuries requiring substantial medical treatment, extended absences from work, and permanent physical or mental impairments may command substantial compensation. Juries tend to believe that injuries that cannot be seen or demonstrated objectively are susceptible to exaggeration by the party seeking money damages, and insurance claim personnel tend to appreciate that fact.

When it comes time to settle a claim, both sides should have a clear “before and after” picture of the injuries and how they have affected the victim’s life. The “difference” is the value of the claim. For example, a previously healthy, productive, young worker injured severely by an obviously culpable defendant will demand substantial compensation, especially where the victim has undergone substantial medical care, extended loss of earnings, and is facing a future of impaired earning capacity, disfigurement, pain, and suffering. On the other hand, the claim of an older person injured in questionable circumstances resulting in complaints that can be established only by the word of the claimant may be substantially discounted both by a jury and a claims adjuster.

If the injured person is found partially at fault for the accident causing the injury, then the amount of damages will be proportionately
reduced; likewise, if there is a substantial chance that the claim will not succeed for any reason, then any pretrial settlement will be reduced in most instances.

How and when will my claim be settled?

If the person responsible for your injury has insurance, an insurance adjuster will gather and try to verify the necessary medical treatment records, medical expense, and wage loss information and what permanent impairments have been caused by the accident. If the insurance company makes an offer that you (and your attorney) find acceptable, then the claim process is over. If no acceptable offer is made, then you may file a lawsuit. During the early months after a lawsuit has been filed, both sides can conduct depositions and other “discovery” to obtain more detailed and exacting proof about the nature of the claim.

As the trial date approaches, both the claimant and the insurance company usually take a closer look at the elements of the claim and available evidence to support it, and may try to settle the matter by informal discussion, mediation or pretrial conferences with the judge. Although about 95 percent of injury claims settle before trial, one cannot know in advance which claims will require a trial before a judge or jury for resolution. Once a claim is put in suit, it typically takes six to 18 months to resolve.

This is one in a series of consumer information pamphlets sponsored by the State Bar of Wisconsin. This pamphlet, which is based on Wisconsin law, is issued to inform and not to advise. No person should ever apply or interpret any law without the aid of a trained expert who knows the facts, because the facts may change the application of the law.

Other titles include: Arrest; Bankruptcy; Buying/Selling Residential Real Estate; Choosing a Process for Divorce; Custody and Placement; Durable Powers of Attorney; Divorce; Guardians Ad Litem in Family Court; Health Care; Hiring/Working with a Lawyer; Landlord/Tenant Law; Marital Property; Personal Injury; Probate; Revocable Living Trusts; Small Claims Court; Starting a Business; Traffic Accidents; Wills/Estate Planning.

2/10. © State Bar of Wisconsin

Auto Accidents

When to run to an attorney and when to walk. Contacting an attorney who deals with personal injury (especially relating to auto accidents) can provide you with the peace of mind that no stone gets left unturned. Here are some tips for when you should run to an attorney and when you can just walk:

Run to an attorney when:

• An injury has occurred where there has been serious injury (broken bones / hospitalization) or where injuries are likely to be permanent (paralysis);
• A death has resulted from the accident;
• Fault is clearly an issue;
• Other parties were involved such as pedestrians or other autos;
• The accident occurred in a construction area;
• A police report does not accurately describe the accident and puts you at fault;
• Important technical, legal or medical issues are involved;
• The limits of your liability insurance are low,
• You have no insurance,, or your insurance company suggests that you did not pay your premium.
• Your insurer starts “acting funny.”
• Your insurer involves its own attorney (in this case, sprint!).

Walk to an attorney when:

• Seeking advice on the settlement value of a claim (while not an exact science, attorneys may be able to provide best and worse case scenarios);
• Unsure if other insurance (homeowners, travel, etc.) may be available;
• Fault may be an issue;
• Determining whether your insurer may be acting in bad faith (not looking out for your best interests);
• Seeking information on how to handle negotiations with an insurer;
• You don’t know your rights;
• Confused over the terms of your policy;
• Needing an expert to review confusing paperwork or forms.