A Checklist for Getting Workers’ Comp
Follow this Step-by-Step Guide to Determine if You Meet the Requirements for Workers’ Compensation Benefits
A primary objective of workers’ compensation law is to extend coverage to as many employees and work-related injuries and diseases as possible.
And for the most part, the patchwork system of federal and state workers’ compensation laws achieves this goal. For example, the National Academy of Social Insurance (NASI) estimates that workers’ compensation programs cover 144.4 million U.S. jobs. And every state, except Texas, mandates workers’ compensation coverage for most private employers.
But despite this broad coverage, many injured workers receive claim denials from insurance companies and third-party administrators such as Sedgwick CMS and Gallagher Bassett. And they don’t fare better at workers’ compensation hearings.
But you can avoid this outcome by understanding how to get workers comp. Indeed, most claim denials result from misunderstanding the eligibility requirements for workers’ compensation, contributing to a failure to develop and present the evidence needed to carry your burden of proof.
This article fixes that by providing a checklist for satisfying the eligibility requirements for workers’ compensation. I hope this information helps you receive the lifetime medical benefits, wage loss payments, and permanent partial disability (PPD) compensation you deserve.
And if you have questions about workers’ compensation law, call me for a free consultation at 804-251-1620 or 757-810-5614. My law firm has negotiated tens of millions of dollars in workers comp settlements for injured employees like you.
Who Does the Workers’ Compensation Act Cover?
Step One: Where Did the Injury or Occupational Disease Occur?
The first step in determining eligibility for workers’ compensation benefits is deciding which state’s law applies.
Each state has its own workers’ comp rules and regulations. And although similarities exist between programs, key differences could determine whether you qualify for workers’ compensation.
Generally the law of the state where you get hurt applies to your workers’ comp claim. For example, the Virginia Workers’ Compensation Act applies to workplace accidents and occupational illnesses occurring in Virginia.
However, in some cases, a state may have jurisdiction over a workplace injury outside its borders. These “foreign injuries” are governed by the employment contract and the location of the employer’s principal place of business.
Step Two: Does My Employer Have to Carry Workers’ Compensation Insurance Coverage?
An employer is any person, firm, association, corporation, or government entity that pays another for services. In addition, volunteer fire departments and rescue squads may choose to fall under the Workers’ Compensation Act.
Most employers in Virginia and other states must have workers’ comp insurance to cover their employees. This is because the general rule is that an employer with three or more regular employees in the same business must provide workers’ compensation coverage at no cost to their employees.
Some employers believe that insurance coverage is unnecessary if their employees work part-time. But this belief is wrong. Even part-time employees count toward the workers’ comp insurance requirement.
Fortunately, you have two legal options if you get hurt at work, but your employer violated the law and did not have workers’ compensation insurance.
First, you can file a workers’ compensation claim and seek benefits through the Uninsured Employer’s Fund (UEF).
Or you can bring a civil action (lawsuit) against the uninsured employer under Code Section 65.2- 805 (if you get injured in Virginia). This law permits an injured employee to sue the employer for damages for personal injury or death by accident. And it bans the employer from raising the defenses of contributory negligence, fellow servant, or assumption of the risk. In other words, this is a strict liability statute.
Although the second option can put more money in your pocket, filing a civil lawsuit instead of a workers’ comp claim only makes sense if the uninsured employer has assets that you can collect a judgment from.
Step Three: Am I an Employee?
Only employees qualify for workers’ compensation coverage; independent contractors do not. Read this article if your employer alleges you are an independent contractor not entitled to benefits.
Usually a person’s employment status is stipulated in workers’ comp claims. But disputes arise, particularly in construction and trucking/logistics cases.
An employee is “every person, including aliens [undocumented workers] and minors [children under the age of 18], in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed.” In addition, the work performed must be in the employer’s usual trade, business, occupation, or profession.
What is a Contract of Hire?
The Workers’ Compensation Act does not define the term “contract of hire.”
However, the Supreme Court of Virginia has held that a contract of hire is “an agreement in which an employee provides labor or personal services to an employer for wages or remuneration or other thing of value supplied by the employer.”
In addition, the court has said that “an implied contract of hire exists where one party has rendered services or labor of value to another under circumstances which raise the presumption that the parties intended and understood that they were to be paid for, or which a reasonable man in the position of the person receiving the benefit of the services or labor would or ought to know that compensation or remuneration of some kind was to be exchanged for them.”
Therefore, the law excludes injuries during volunteer activities from coverage.
Does It Matter How Long My Employment Lasts Before I Get Hurt?
No.
You have immediate eligibility for workers’ compensation coverage.
Indeed, I have resolved claims for many employees who suffered injuries within a few hours of starting a new job.
This immediate coverage is critical for new workers because studies show you have an increased risk of injury when learning to do a job.
Does the Act Cover Work-Related Injuries to Children?
Yes.
Injured minors can receive the same workers’ comp benefits as hurt and ill adults.
Many states permit minors to work when they reach a specific age. In Virginia, for example, a child can work in any gainful activity when they reach the age of fourteen as long as they are enrolled in a regular school work-training program and have received a work-training certificate.
Employments Excluded by the Workers’ Compensation Act
Although workers’ comp covers most employees, it does not cover all.
In Virginia, for example, the law excludes these specific occupations from eligibility for workers’ compensation coverage:
- Government employees elected by the General Assembly or appointed by the Governor
- Real estate salespersons (realtors) who get paid from commissions exclusively or who have a written contract specifying they are independent contractors
- Taxicab drivers
- Domestic servants
- Farm laborers and horticultural workers, unless the farm regularly has in service more than three full-time employees
- Railroad employees (covered by the Federal Employers’ Liability Act)
- Sports officials (umpires, referees, judges, scorekeepers, or timekeepers)
- Maritime workers, such as those employed by Newport News Shipbuilding – Huntington Ingalls Industries (covered under the Longshore and Harbor Workers’ Compensation Act)
In addition, an injured undocumented worker cannot receive wage loss benefits while partially disabled. Although lifetime medical benefits and compensation for permanent loss of use of the injured body part are available, an undocumented worker cannot get temporary partial disability or temporary total disability unless a doctor removes them from all work.
Does Workers’ Comp Cover Your Injury or Illness?
Proving that the Workers’ Compensation Act covers you and your employer is only the beginning. You must also show that you suffered a personal injury by accident caused by a specific risk of your employment. Or a disease connected to your job.
Let’s look at each of these requirements to get workers’ comp.
What is a “Personal Injury?”
A “personal injury” is a sudden mechanical or structural change to a body part that produces harm, pain, or a decreased ability to use the body. You can prove an injury with medical records, diagnostic imaging results (MRI, CT scan, X-ray), or testimony and pictures showing that you felt a pop or had swelling, bruising, numbness, tingling, or a laceration.
The suddenness test separates accidental injuries from those occurring gradually, cumulatively, or due to an eroding physical condition.
In addition, the workers’ comp definition of a “personal injury” includes purely psychological injuries (such as Post-Traumatic Stress Disorder) resulting from a “sudden shock or fright.”
Did the Injury Happen “by Accident?”
A sudden change in the body is insufficient to get workers’ comp. You must also prove that an accident caused the injury.
The Unexpectedness Requirement
An accident is an event that, under the circumstances, is unusual and not expected by the person to whom it happens.
Additionally, “an accident is an event which creates an effect which is not the natural or probable consequence of the means employed and is not intended, designed, or reasonably anticipated.” This prong allows the award of benefits when injury results from common movements.
Therefore, you can show a “personal injury by accident” if the incident or the injury was unexpected.
The Definite Time Requirement
You must also prove that the injury by accident happened within a reasonably definite time.
This part of the “personal injury by accident” test causes frequent litigation. Indeed, the Workers’ Compensation Commission grapples continuously with the line between a discrete event and gradual exposure (cumulative trauma). For example, the Commission has awarded benefits to someone injured during a 45-minute window but regularly denies claims for harm resulting from four or more hours of exposure.
But remember, your symptoms do not have to appear immediately. As long as you can identify the specific event, the Commission may award benefits despite a lag of several hours (or even days) between the incident and the development of symptoms.
“Arising Out of the Employment” – What is the Test?
Most states follow the actual risk or positional risk doctrines when determining if an injury by accident qualifies for workers’ comp.
Actual Risk Doctrine
In Virginia, the actual risk doctrine applies.
Under this doctrine, the mere happening of an accident at the workplace is insufficient to get workers’ compensation benefits. You must also prove that your employment conditions or a work-related exertion produced the injury.
However, injuries from walking, bending, and turning do not qualify for benefits unless other circumstances (such as rushing or an awkward position) exist.
Positional Risk Doctrine
Some courts follow the positional risk test to determine if an injury by accident arises from employment.
Under this doctrine, you qualify for benefits if you get hurt because your job requires you to be at the place where the injury happened when it occurred. This test is more straightforward to satisfy than the actual risk doctrine and more likely to lead to an award of benefits.
Did the Injury by Accident Occur in the Course of Employment?
The last element you must show to prove that workers’ comp covers an injury is the “course of employment” test.
An injury occurs “in the course of” employment when it happens within your employment period, at a place where you reasonably may be, and while fulfilling your job duties or something incidental to the work. In other words, this prong looks at whether your injury happened at a proper “time and place.”
Often this inquiry is straightforward. However, a dispute may arise if your injury happens on an out-of-town business trip, just before or after your shift starts or ends, when “going and coming” from work, or during a rest or meal break.
Speak with a Workers’ Comp Attorney to Determine if You Qualify for Benefits
Whether workers’ compensation covers your occupational injury or illness seems straightforward. But unfortunately, the answer often turns on minor details and facts.
You can hope you qualify for workers’ comp.
Or you can call an attorney familiar with the case law and judicial precedents so they can develop the evidence needed to put tens of thousands of dollars in wage loss payments in your pocket and help you get lifetime medical benefits.
The test for proving a compensable injury by accident under workers’ comp is only the beginning. Other facts may require you to satisfy specific procedural requirements (such as giving timely notice by written report or filing a change-in-condition claim within the statute of limitations), market your residual work capacity, or fight off an insurer’s attempt to stop benefits by obtaining doctor disability letters on legal and medical causation.
How you meet these challenges affects the lump sum settlement amount you should demand.
If you have any questions, call me. My law firm is ready to prosecute your case.
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