Legal Issues and Workplace Injuries

Due to the complex nature of workers compensation and workplace injury, many legal issues present themselves.  1 out of every 5 people under the age of 40 will have some sort of disability, so it is important to be prepared in the event of a serious accident.  There are many legal issues that can arise from a workplace injury, and workers comp claims can be complicated for an employee to navigate.  Employees often need the assistance of an attorney experienced in workers compensation to help them assert their right to benefits for loss of wages, medical benefits, rehabilitation and compensation for permanent injuries. 

Every state has a procedure that needs to be followed.  Generally, the injured employee has to report their accident within a short time after the event.  If you fail to give that notice, you can lose your right to workers’ compensation benefits.  If you do report your accident in a timely fashion and do not receive the benefits you are entitled to, you should seek legal representation in order to receive your benefits.

You should also think about obtaining an individual disability insurance policy beyond what your employer offers.  One purchased through your employer is governed by the Employment Retirement Income Security Act, which is better known as ERISA.  Although you do not have to worry about details of this confusing law, it is important to recognize the practical effect it will have on your claim. 

Under ERISA, your dispute will be resolved in federal court.  When you are in federal court, the judge does not have a hearing.  You do not have a right to present your testimony.  Basically, the judge never sees you or your doctors.  There is a 180 day appeal process when a claim is denied.  During that time, you need to create a record by getting statements from the doctors and establish evidence that you are entitled to these benefits.  Once it goes in front of a judge, he will only look at what is in that record.  If you purchase an individual disability policy, you have a right to have a jury trial, present testimony, have your doctor present testimony, and you have a right to appear before the jury and present your case.   

Every state has different workers compensation laws, but they all have a safety component.  Generally, by law, employers are required to have a safety committee.  Every person who sees an unsafe condition needs to go to that safety committee and report it.  You can even ask to be a part of the safety committee yourself so you know what is going on in your workplace. 

If you are injured or sick, and you cannot work, you may also be entitled to social security disability benefits.  What is social security?  When you get your pay check every week or two, you will see that social security taxes have been taken out.  This is similar to paying a premium on an insurance policy as it insures you for retirement purposes or for disability purposes.

There is a process in applying for social security benefits.  It is recommended that you get some legal representation.  You can apply for social security disability on your own, but it is important to concentrate on your health during this time.  When applying for these benefits, people routinely get denied.  But, what a lot of people do not know is that you can appeal this decision and you should appeal this decision.  Since there are so many pending applications, most people will get denied these benefits after their first application.  The social security administration wants to prevent fraudulent claims.  In most cases, you will get a second denial if you apply again.  At that point, you can request a hearing before an administrative law judge.  Since few judges handle these claims, you have to wait a long time to get to this point.  A very high percentage of people give up after their first denial.

It is possible that the administrative law judge will not approve your benefits when you eventually get to that hearing level.  However, you can also appeal that decision.  This is probably one of the most important times to have some sort of representation since the hearing is the best opportunity you have to present your case and get approved for these benefits.  This is the time that you are having an independent decision maker look at your entire case and you want the evidence presented and the legal arguments made by someone experienced in this area of law.

A pre-existing condition may be a basis for denial.  For example, someone with diabetes may work for several years even though they suffer from this disease.  Social security may make the determination that since you have worked with your impairment for two or three years, you can continue to work in some sort of job that requires less exertion.  When you are claiming to be disabled for social security purposes, it means you are incapable of working.       

Who should apply?  In order to be eligible for social security disability benefits, you have to be out of work for a year.  You can also be eligible if you are expected to be out of work for a year.  Therefore, even if the injury has just occurred, it is a good idea to apply for these benefits right away if you even expect to be out of work for a while since the process takes a long time.  In order to be eligible for these benefits, your injury or illness has to be severe.  For example, if you stub your toe, you will not be eligible for social security disability. 

Your injury or illness must be severe enough so that you are unable to return to work.  Even psychological impairments can qualify you for these benefits as long as they are severe enough where you cannot work.

You may be wondering whether your social security disability benefits come close to what your salary provided to you and your family.  Unfortunately, the monetary benefits usually are not as much as your salary.  However, the health insurance benefit you receive along with the social security is significant for people and the monthly monetary benefit is certainly helpful. 

If your application was denied and you persevered during this whole process, the judge might order retroactive payments.  For example, if your claim lasted two years and you are finally approved by the judge, you are going to get an ongoing monthly benefit along with two years of retroactive payments in a lump sum and that can be significant for people.

Read the next article in the series:  Workers Compensation Insurance 

Contact an attorney in your area.