How Do You Know If You Have a Workers' Comp Claim?
You don't always know, so Colorado attorneys suggest being on the safe side
on March 16, 2020
Updated on February 8, 2021
You’re walking down the stairs at work when you fall and twist your knee. You’re out for a week. Can you claim workers’ compensation?
Short answer: It depends.
“If someone injures themselves falling up or down the stairs because of a pre-existing condition, then the injury is not compensable—because the stairs are not a special hazard but rather a ubiquitous condition,” says Michael H. Kaplan, a workers’ comp attorney at Kaplan Morrell in Denver. “The ubiquitous condition-special hazard analysis only applies if there is a pre-existing condition. If a person falls because the stairs are wet, for example, then the injury would be compensable.”
Deciding what is and isn’t compensable can get tricky, Kaplan admits.
There are three basic elements to address:
- Was the injury sustained while working in the course/scope of employment
- Did it arise out of that employment?
- Has the worker missed at least three days/shifts of work?
“It has to be sufficiently related to one’s job duties to be considered part of work,” says Alissa M. Peashka, with Thomas, Ahnell, Laraway and Smith in Greenwood Village. “And just because something happens at work does not mean it is a compensable injury. … Let’s say they’re a mover, lifting a couch. And when they pick up the couch, they felt a pain in their lower back. If that person has had 30 years of treatment for back pain, oftentimes the insurer might deny the claim.”
There are three broad categories of compensable injuries. Accidents like a slip-and-fall in the course of doing something work-related are pretty obvious, Peashka says. Then there are what she calls “an incident of the onset of pain while doing duties,” such as a grocery store clerk feeling shoulder pain while stocking shelves. The third category is developing an occupational disease. “They come on slowly over time—for example, carpal tunnel or repetitive motion injuries, firefighter cancer cases, construction workers inhaling dust and developing long-term chronic conditions.”
To collect workers’ comp, the worker has to prove the injury was work-related with what’s known as a “preponderance of evidence.” One of the biggest mistakes workers make is not reporting the injury within four days, which is the state legal requirement. “I have seen a lot of instances, and it’s often men, who are going to be tough: ‘I will deal with it, I won’t complain,’” Peashka says. “But it doesn’t go away over time, then they report the injury later.” Sometimes too late.
Another mistake is not being candid about your prior medical history. “An easy way to lose a claim is if you had a prior injury to the same body part you injured at work,” Peashka says. If you don’t tell your claim-related doctors or the insurance company, and they find out about it—which they will—it’ll work against you. “It is better to err on the side of honesty,” she says.
Even if you do everything right, there may be a battle. “I had a case, a lady who worked at a hospital. She turned to her right to help a patient, and felt a pop in her knee,” says Katie McClure, a workers’ comp partner at the Sawaya Law Firm in Denver. The carrier claimed this was not related to work. “But we looked further into the facts, and discovered that the wheelchair the patient was in had gotten in the way of her turning, so that was considered work-related,” McClure says.
Mental health claims are often compensable as well, the experts say. Even a physical injury that later leads to depression and requires mental health care is usually covered, McClure says. Other claims may be more straightforward. “I had a client who saw another employee get shot in front of her,” she adds. “She had PTSD, and even though she was not [physically] injured, witnessing such a traumatic event [led to] a mental health claim, and that was fully covered.”
To reiterate: You don’t always know if you have a workers’ comp claim. “There is a lot of strategy to this system. It’s not easy to navigate on your own, and it takes specialized knowledge,” Peashka says. “If you feel entitled to some kind of benefit, you have to get an advocate to help you.”
If you'd like to know more about this area, read our workers' compensation law overview.