How To Tell if You Have a Workers' Comp Claim

A construction worker falls off a roof and goes to the ER. What happens next? Ideally, the employer’s insurance pays the medical bills and compensates for lost wages. But what if a worker with a bad back wrenches it again while lifting a square of roofing shingles? The short answer is: it depends.

When a prior condition contributes to a work-related injury, the incident must be the primary contributing cause of the medical issue. Otherwise, the employer denies the claim, and the worker must either turn to regular health care insurance or hire a lawyer to fight the workers’ compensation claim denial.

Required Workers’ Compensation Benefits

Most companies in the U.S. must carry workers’ comp insurance. It’s a no-fault system that puts benefits immediately into workers’ hands without litigation—but there are limits. 

The workers’ compensation process varies by state. Each state has its own claims process, workers’ comp benefits, and appeals process. Talk to a local workers’ comp lawyer about the process in your state.

“You’re robbed [at work], and somebody points a gun at your forehead. You have nightmares, you can’t sleep, and you can’t come to work. That is not a covered incident,” says Barry Stein, a workers’ comp lawyer at De Cardenas, Freixas, Stein & Zachary in Miami. “If the person hits you on your head with the gun and it requires medical treatment, now everything is covered, even the stress.”

“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.”

In general, if you are doing your job, regardless of the location, any resulting physical workplace injury is covered. But some types of injuries are hard to prove to insurance carriers.

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Elements of Workers’ Compensation Cases

Generally speaking, there are three things to establish in a claim for workers’ compensation coverage:

1. Was the injury sustained while working in the course/scope of employment?
2. Did it arise out of that employment?
3. Has the worker missed at least three days/shifts of work?

“It has to be sufficiently related to one’s job duties to be part of work,” says Alissa M. Peashka, with the Law Offices of Dianne Sawaya in Denver. “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 picked 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.”

Accidents like a slip-and-fall in the course of doing something work-related are pretty obvious, Peashka says. Then there is 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.

Another 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.”

Where Injured Employees May Have Difficulties

In 2003, for instance, the Florida Legislature changed the definition of injuries caused by exposure to harmful substances such as fungus or mold. Those injuries are now rarely considered workplace-related. “Not unless the injured worker can prove by clear and convincing evidence exactly what he was exposed to, exactly how much he was exposed to it, and that the exposure can cause the injury that he had,” says Mark Zientz, a workers’ comp lawyer in Miami. “It’s a virtually impossible standard to meet.”

That’s because mold exists nearly everywhere in Florida. Industrial chemicals are tough, too, because the law requires double-blind studies proving the exposure causes harm. Such studies exist for only a few high-profile substances, like asbestos.

Lawyers also struggled years ago to win payments for repetitive-stress disorders. “Everybody has arthritis in their spine or other joints as they get older,” says Dennis Smejkal, a workers’ compensation lawyer in Orlando. “You have to have a doctor say that your need for treatment is 51 percent or more related to the accident. If it’s 50-50, you lose.”

“Workers’ comp insurance companies found out that that’s usually a losing battle,” says Monte Shoemaker, of Shoemaker & Shoemaker in Altamonte Springs, Florida. “They don’t fight against it anymore.”

In most cases, workers’ comp is relatively easy to use. Your only immediate responsibility is to tell a supervisor about your injury.

It might seem easier to use your own doctor, with your own health insurance, and skip the workers’ comp claim. However, it’s not really a good idea, says G. Ware Cornell Jr., an employment and labor lawyer at Cornell & Associates in Weston, Florida. Most private insurance doesn’t cover injuries that are work-related. And workers’ comp provides benefits that private insurance does not, and without deductibles or co-payments. And if your injury proves more serious than you thought, workers’ comp will give you long-term disability benefits.

Don’t worry, you’re protected from getting fired over filing an initial claim. “You can sue for retaliation,” Cornell says.

For legal advice about your workplace injury or a denied claim, talk to a workers’ compensation attorney.