Ideally, if you are hurt on the job, workers’ compensation should pay your medical bills and for any lost time because of that injury. If you are hurt bad enough, workers’ compensation should also pay your permanent disability, for future medical care and even for re-training.
In reality, sometimes this doesn’t happen. This post will attempt to explain the reasons why a workers’ compensation claim will be denied or delayed and what injured employees need to do preserve their rights.
Lack of information: In order for a claims administrator or insurance company to pay a claim, they need to determine if it is covered by workers’ compensation. At a minimum, this means that they need some medical records documenting the injury. This can take time. If a doctor has given work restrictions, this means that the claims adjuster needs to contact the employer to find out if those restrictions can be accommodated. Even assuming everyone is being honest and diligent, this process may take a few weeks. The general standard is to give an insurer three to four weeks to investigate a claim. I would advise that injured employees be civil with employers and insurance adjusters. This can be difficult if you are like many Americans who live paycheck to paycheck, but a loss of temper can compromise your case. It’s difficult to be patient, but the fair employers and/or insurers will make up lost time pay and will pay you a reasonable amount of benefits without dispute and without the involvement of a lawyer.
You aggravated an old injury or chronic condition: To be clear, if you make an old injury or chronic condition worse, that is covered by workers’ compensation in Nebraska. However, this may not be understood by a claims person in a state where there is a different standard of causation. This fact is also not widely understood by most employees or managers, which can lead employers to deny coverage and discourage employees from reporting such injuries.
Your injury came on from overuse or repetitive use rather than from a one-time incident: Arm, hand and even back injuries are very common from repetitive activity. These symptoms usually come on over time, and employees can’t pinpoint an exact injury date to employers or doctors. Under Nebraska law, such injuries are covered by workers’ compensation. But again an unscrupulous insurer and/or employer can use these facts to argue to you that your injury is not covered by workers’ compensation.
You delayed seeking medical treatment: Delaying going to the doctor canhurt your workers’ compensation case, because it raises the suspicion that you hurt yourself outside of work. The delay doesn’t even need to be all that long. It’s a red flag if you claim you were hurt on a Friday then seek treatment on a Monday. There are all sorts of legitimate reasons for some delay, such as the inability to make an appointment, wrongfully thinking you need to ask permission to see a doctor from your employer, seeking treatment with company nurses first, or even thinking an injury will improve on its own. A lawyer can make those arguments with some success, and you should contact one if this is an issue in your case. But the longer you wait to see a doctor, the more likely it is your claim will be denied.
You didn’t tell your supervisor you were hurt, or you didn’t fill out an accident report: If you are hurt at work, your employer has a duty to report to the state of Nebraska and the Occupational Safety and Health Administration (OSHA) that you were hurt. You also have a duty to inform your employer as soon as practicable. Cover yourself, and report the injury. Even if your employer doesn’t have a form or a formal human resources department, send a text or e-mail to your boss telling that person what happened and what kind of injuries you have.
You initially denied you had a work injury: Some employers will tell you that they will take care of the injury themselves and not turn it in to workers’ compensation. In some cases, employees are afraid to turn in injuries. In other cases, an employee has been led to believe that an injury isn’t covered because of the factors listed in points 2-5, so that worker turns the claim over to private insurance. The problem with this outcome is that for a serious injury you can get stuck with paying a lot of money out of pocket, which can be almost impossible to pay if you aren’t working and not receiving workers’ compensation benefits. Even worse, some health insurers will reverse payment if they get an indication your bills should have been covered by workers’ compensation. Some companies have private disability policies that might allow you to collect some benefits, but those policies will also deny benefits if they have some indication that there was a workers’ compensation claim.If you are in this situation, you need a lawyer for your workers’ compensation claim. You also need a lawyer who knows creative ways to turn the tables on employers and insurers who completely deny benefits to their employees. Some of my most professionally satisfying cases have come from turning the tables on employers who, for lack of a better word, jack around employees who make some mistakes in how they handled their workers’ compensation claims.
Even if you have done several things to hurt your workers’ compensation claim, a good lawyer can take actions to get justice on your claim.
Your employer didn’t fill out an accident report or filled it out wrong: Not all denials or delays are due to mistakes made by employees. Employers drop the ball as well. That’s why you want to cover yourself with your own written report as well as see a doctor as soon as you can and be sure to tell that doctor how you were hurt.
You were treated by a physician assistant or nurse practitioner: Some insurers and/or employers believe that physician assistants and nurse practitioners cannot testify in a workers’ compensation case in Nebraska. I strongly disagree, but the issue has never been definitively decided by an appellate court. An aggressive employer and/or insurer will use this as an excuse to not pay benefits. A lawyer can help fix this issue by asking a supervising physician or D.O. to give an opinion in your case.
You went to see your own doctor rather than the employers’ doctor: Unless your employer gives you notice AFTER your work injury, you have the right to be treated by your doctor. You don’t have to see the doctor at the clinic where your employer sends you to be drug tested after an injury.
I despise few phrases more than “workers’ compensation doctor.” Any doctor can treat you for a workers’ compensation injury. A “workers’ compensation doctor” or an “occupational medicine doctor” is just a doctor who is happy to fill out the extra paper work required in a workers’ compensation claim. Usually these doctors work hand in glove with employers and insurers. Sometimes this works out for employees, but many times it doesn’t. Unscrupulous or unknowledgeable insurers and/or employers will deny care to employees who pick their own doctors. Sometimes employers will take action against employees as well. In cases like this, you need a workers’ compensation and employment lawyer.
Your employer blames you for your injury: Unless you were intoxicated when you were injured, the issue of fault is irrelevant in a workers’ compensation claim. If your employer is denying your claim based on you being at fault, you need a lawyer for your workers’ compensation claim and one that can evaluate a potential employment-law claim.
You are being denied benefits because you were fired or quit: Like the issue of fault for your injury, the fact you were fired or quit post-accident should have little impact on your workers’ compensation claim, but you should contact a lawyer who can advise you on workers’ compensation and employment law.
Workers’ compensation law is founded on a compromise where employees give up the right to sue their employers for negligence in order to receive relatively certain benefits. What plaintiff’s lawyers like me don’t often say is that workers can generally collect benefits if they share some – or even all of the blame – for a work injury.
But the idea of fault has not been entirely erased from workers’ compensation law. Our colleagues at The Jernigan Law Firm in North Carolina recently discussed in a blog post how employer violations of safety rules could lead to increases in benefits, while employee violation of safety laws could lead to decreases in benefits.
If an employer is going to claim a worker was willfully negligent because of a safety violation, a court will consider five factors as to whether an employee was willfully negligent. These factors are
whether the employer had a reasonable rule designed to protect the safety and health of the employee
whether the employee was on notice of the rule
whether the employee understood the danger involved by violating the rule
whether the rule was kept alive by bona fide enforcement and
whether the employee had an excuse for the rule violation.
Whether an employee willfully violated a safety rule is a question of fact that depends on the circumstances and the credibility of the parties testifying in a case.
Nebraska law holds that ordinary negligence by a worker is not a bar to benefits. But an employer can delay benefits under the argument that but for the employee’s negligence, the employee’s injury could have been accommodated. That is an open question under Nebraska law. But if there is no question that an employee cannot work, and the worker is fired for negligence in connection with a work injury, the employer should still have to pay benefits.
Intoxication is often grouped with willful negligence under Nebraska law. It is very difficult for an employer to deny benefits based on intoxication causing the work accident. Another issue related to intoxication is when an employee tests positive for drugs after a work accident even if there is no evidence of intoxication at the time of the injury. A positive drug test will not bar an employee from receiving workers’ compensation benefits in Nebraska, but it could delay lost time or temporary disability benefits if an employer argues that temporary restrictions could be accommodated but for the employee’s termination for cause.
If you violate a safety rule you may still be eligible for workers’ compensation benefits.
If your employer has denied your workers’ compensation injury based on the fact that you “violated a safety rule” it is likely that you can still recover the benefits you are entitled to for your work injury.
Some states limit or completely bar recovery if an employee is found to have violated a safety rule when he or she was injured on the job. In Nebraska, however, the violation of a safety rule is not automatically deemed “willful negligence” as a matter of law, which would bar any recovery for workers’ compensation benefits. Instead, the Nebraska courts rely on five factors in determining whether the safety-rule violation would bar workers’ compensation benefits for injured workers. By analyzing these five factors, the court will determine if the safety violation rises to the level of “willful negligence,” which means that the employer must prove “a deliberate act knowingly done or at least such conduct as evidences a reckless indifference to the employee’s own safety”.
These factors were adopted by Nebraska courts when Roger Moore, from our law firm, successfully argued that his injured worker-client was entitled to workers’ compensation benefits even though the worker actually violated a company safety rule when he was injured on the job. See Guico v. Excel 260 Neb. 712, 619 N.W.2d 470 (2000). The Supreme Court sided with Roger Moore in determining his client was entitled to workers’ compensation benefits based on the following factors:
Whether an employer has a reasonable rule designed to protect the health and safety of the employee,
Whether the employee has actual notice of the rule,
Whether the employee has an understanding of the danger involved in the violation of the rule,
Whether the rule is kept alive by bona fide enforcement by the employer, and
Whether the employee has a bona fide excuse for the rule violation.
Of course, oftentimes your employer cannot meet these factors, and your claim should not have been denied. For example, just because your employer gives you handbook one day with safety rules you are to follow (factor 1 above) does not mean it will be able to automatically deny your workers’ compensation claim. In fact, it is highly likely that your employer will have difficulty establishing the four other factors that follow.
In sum, it may take some work and some investigation, but if your workers’ comp claim has been denied for a violation of a safety rule, chances are good that you still may be able to recover benefits for your injury.