February 2006
Volume 2, Number 2
Table of Contents

Workers' Compensation For The General Practitioner

By Bruce Ridley 1

Introduction

Workers' compensation appears in some form in every state. The concept arose to address injuries in the workplace. When negligence had to be proven, procedures were slow in courts of general jurisdiction, and trial costs were expensive for employers and employers.

Business and labor arrived at a legislative solution. 2 The actual statutes vary extraordinarily by state, but in general labor gave up the right to sue for general damages and business gave up the right to require the worker prove negligence from the employer as the proximate cause of an injury. In each state, the Legislature created an agency—often called a "board" or "commission"—to administer workers' compensation laws. Some, like Washington, also created a separate administrative hearing agency to hear appeals from the industrial agency's decisions.

Workers' compensation statutes and coverage vary greatly by state. If you are not familiar with your state's statutes and agency and court rulings, you may have little or no time to find or learn the appropriate law before your client's rights expire. State laws vary as to:

  • Definitions of "industrial injury" and "occupational disease";
  • Filing requirements;
  • Statutes of limitations for filing claims and perfecting appeals;
  • Necessary parties to a proceeding (e.g., all employers in an occupational exposure occurring over time);
  • Benefits available for time-loss compensation, loss of earning power, vocational services, medical and psychiatric treatment, surgery, medication, pensions, and beneficiaries;
  • Whether psychiatric conditions and occupational diseases are covered, and to what extent;
  • Awards (if any) for permanent partial disability;
  • Application of state civil rules or administrative hearing rules;
  • Relief to an employer for a worker with prior injuries;
  • Right to a jury trial, the number of jurors, and the procedures at hearing;
  • Rights on and methods of appeal;
  • Calling expert witnesses, and who pays for their testimony;
  • Preference or weight to be given to one expert's testimony over others;
  • Right to file third-party actions and how to divide up any recoveries from the same; and,
  • Attorneys' fees and costs, at all levels.

The quickest manner to access statutes and administrative rules of your state is to use a legal search engine such as LexisNexis. Also, each state's industrial agency, board, or commission will have its own website, and most of those have access to agency rules and decisions and referents to statutes. Many states also have published opinions, guidelines, or other analyses available. The weight a trier of fact gives to such analyses, again, varies by state. For comparative analysis, background history, and a sense of the area of law, Larson's Workers' Compensation is the essential treatise for this area of law. The Larson's Desk Set is three thick volumes. It can be difficult to find the area of law you seek if you do not know workers' compensation. Larson's is available via LexisNexis.

You cannot rely on one state's law to address a claim in another state. You must know the answer in your state's law. Most industrial agencies have some appeal route to the appellate courts, and the appellate courts differ in the deference they give to agency opinions and the decisions of the appellate courts in other states as to an issue on appeal.

If so much of workers' compensation is wholly a state creation, what can a general article do? Not too much. However, many workers' compensation cases may appear in your office in disguise, as some other type of tort. You may save your client's right if you discern the workers' compensation issue. If you find one and there is no time to refer the client to a skilled practitioner of that law, you may have to act immediately to protect your client's rights before deciding whether to refer a case. You also may protect yourself from a claim against your carrier.

Workers' compensation statutes of limitation tend to be much shorter than general tort statutes, and you may have a worker walk into your office with a claim that must be filed that day or be lost, or have an employer contact you within one or two days of the date by which that company must perfect an appeal or protest a decision.

Recognizing The Issue

Disguise

A workers' compensation case may appear in disguise. Here are elements for which to look:

  • Auto, pedestrian, or bus or airplane accident: was the worker in the course of employment at the time of accident, e.g., an errand to pick up something for the business, or an employee or partner on the way to a meeting?
  • A fall or other accident on the way to or from work (this varies immensely by state).
  • Chemical or biological exposure while working. For example, in many states a hospital worker may be covered for exposure to airborne pathogens because of the law-or-court-perceived greater likelihood of contracting such a condition in a hospital.
  • Drug reaction when at least some of the drugs were prescribed for treatment of a work-related condition.
  • Assault.
  • Terrorist acts.

If any of these issues arise during your initial interview, immediately follow up with questions to ascertain if you have a workers' compensation issue. You may have to act right away.

Injury Or Occupational Disease

Most states define the term "industrial injury" or "injury" as a sudden event of some type. Check your state's definition. This may include one-time exposures to a high level of chemicals, radiation, noise, or bright light.

Almost all states cover at least some "occupational diseases," conditions arising slowly over time. This is one of the most varied areas of workers' compensation law. Different states allow or reject conditions arising over time from

  • Slow, minute repetitive trauma, such as carpal tunnel syndrome from keyboarding, operating a pneumatic drill, or driving a truck or bus;
  • Loss of hearing, vision, or sense of smell;
  • Transmitted diseases (e.g., colds or pneumonia in hospital employees);
  • Continuing psychological stress in the workplace;
  • Chemical exposures;
  • Asthma and other respiratory diseases;
  • Repetitive low back trauma; and,
  • Vascular diseases.

Each state has different requirements for what does or does not qualify as an occupational disease. Some are very precise. You cannot just throw facts against a wall to see what sticks: you must be very precise. Seek out the requirements. They can exist in a statute, an administrative code section, or case law. Most likely, there will be case law interpreting any statutes or code sections. This area of the law is often litigated.

Statutes Of Limitation

These, too, vary immensely by state. For the most part, the time for filing is less than a tort claim. Some states require an employer to report an injury to the workers' compensation agency, but others do not, so a worker's report of an injury to his or her employer may or may not meet the requirement for filing a claim. In many states, this type of report to an employer does not act as a filing of the claim.

What constitutes an appropriate filing varies by state, too. All states have forms for applying for benefits as an injured worker. In some, the employer has the forms. In many, doctors and other medical professionals have the forms. Most workers' compensation agencies have such forms available on their websites. However, many states are tending to allow any type of application of a type likely to put the workers' compensation agency on notice that the worker is alleging an industrially related condition.

In some states, certain situations may toll the statute of limitation for filing 3 :

  • Mental or physical incompetence, in the absence of appointment of a guardian;
  • Extreme illiteracy;
  • Inability to understand English;
  • Minority;
  • Absence from the country; military service.

Generally, a mistake of law does not constitute an excuse for the late filing of a claim.

In most states, the negligence of a claimant's attorney does not toll the statute of limitation. In a very few states, it does. Imprisonment may or may not toll the statute of limitation.

If you represent an injured worker or an employer filing a counter-claim, file the claim. You may be able later to amend any application, protest, or notice of appeal, but not if you miss that filing deadline. The statute of limitation for occupational diseases may be especially intricate. The key is to beat that deadline.

If you represent an employer who has been notified of such a claim, check to see that it was filed within the time the statute of limitation allows. If the worker did not file in a timely fashion, your client may have a quick resolution to its potential liability.

When A Claim Is Open

All parties to the claim should oversee the process of the claim. Workers have to follow guidelines and procedures. Claimants' counsel should make certain a worker follows through with treatment, vocational retraining, and appearing for scheduled independent medical examinations. Failure to do so can cause suspension of benefits and claim closure.

Employers have to follow procedures for providing benefits, and so do the workers' compensation agencies. Most states have fines for failure to provide benefits when ordered by a workers' compensation agency, and in some states the agency has the authority to suspend a company's right to process claims of the company's employees if that processing is done improperly. It is important for an attorney representing an employer to know the requirements, expectations, and authority of the agency in that regard and to inform the client accordingly.

Appealing Determinations

All states have statutes of limitations for responding to orders from the workers' compensation agency or self-insurer. These statutes vary in length, but most are no more than two months, and some are less. 4 If a worker or employer comes into your office with an order, check the statute of limitations. If the response, protest, appeal or other formal filing is due, you must respond. Some attorneys in such situations appropriately file a blanket response to any extent workers' compensation agency determinations.

Each state has requirements on where and how to file such responses.

Hearings

Many tort attorneys may make the error of considering a worker's compensation claim to be a sort of "little" or "simple" tort claim. Nothing could be farther from the truth. The amounts at issue may be less, but each type of case has very specific requirements, by state, and many of those requirements do not exist in general tort cases. For instance, in Washington State, the party asserting a claim should be reopened because a condition has worsened has to prove the objective findings of the condition on the date it last was closed in order to compare those findings with the findings on the date on which the party is asserting the claim should have been reopened. Almost every state has different requirements for proving occupational diseases.

Summary

Workers' compensation is not a simple area of the law. Legal traps abound for the unwary. It calls for a specialized type of law practice, with great attention to requirements for filing. If you have a case come in, as a threshold matter you must determine if any action is needed immediately. Even if you intend to refer the case to an attorney or firm specializing in workers' compensation law, you may have to appear and take immediate action to preserve your client's rights before referring the case.

On the other hand, a practice concentrating on workers' compensation and social security can be remunerative. The amount received on any one case initially might be small for a claimant's attorney, and the hourly rate for employers' attorneys may be less than in some other areas of law. However, as the initial creators of workers' compensation law stated, injuries at work will happen and are a cost of doing business. Even with all OSHA or State-OSHA requirements, injuries will continue to occur, and parties are likely to dispute coverage and benefits.

The three keys to workers' compensation are the same as in most law practice: preparation, awareness of the many statutes of limitation, and attention to detail as to preparation of evidence and the requirements for proof of the issue at bar.

The Honorable Bruce Ridley is an Industrial Appeals Judge on the Washington Board of Industrial Insurance Appeals

1 This article is the opinion and work product of Bruce Ridley and not of the Board of Industrial Insurance Appeals.

2 Larson's Workers' Compensation, Section 1.01

3 Larson's Workers Compensation, Section 126.09

4 But see the section on tolling the statutes of limitation discussed above

 

 

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