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Common Questions About Workers Compensation Claims

Who pays workers’ compensation benefits?

Most employers are subject to workers’ compensation laws and are required to purchase workers’ compensation insurance to cover employees. Employments that are exempt from this requirement may include agricultural workers, casual workers and at-home workers. Benefits are typically paid by an insurance company, but some employers are allowed to be self-insured for workers’ compensation.

What types of injuries are covered by workers’ compensation?

Workplace injuries that arise out of and in the course and scope of employment are typically covered. Some exceptions apply. For instance, benefits may be denied if the injured worker’s intoxication caused the injury. A covered injury can be produced by a specific incident (such as falling) or by the constant or repetitive stresses of the job (i.e., carpal tunnel). Stress-related problems and occupational illnesses that were caused by the nature of the job may also be covered.

What kinds of weekly benefits are available?

Total disability benefits are paid when the employee is physically unable to earn any wages in any job. The weekly compensation rate for total incapacity is equal to 75% of the employee’s spendable base wage. Supplemental earnings and bonuses are considered in determining the compensation rate.

Partial disability benefits are paid if the employee is not able to earn full wages but at the same time is not totally disabled. When the employee reaches maximum medical improvement, his or her compensation rate may be reduced.

Weekly dependency allowance benefits of $15 per dependent are paid for total disability, while $40 per dependent per week is paid for fatality benefits. No dependency allowance is paid for partial disability. Read more about the types of workers’compensation benefits here.

What is suitable alternative employment?

A light duty job offered by an employer that an injured worker is physically capable of doing is known as suitable alternative employment. If the job is accepted, the injured worker receives weekly workers’ compensation benefits that are the difference between the average weekly wage from his or her regular job and the weekly earnings in the suitable alternative employment job. Refusing the job may cause the insurance company to petition the court for an order lowering the weekly benefit to what it would have been if the job had been accepted. If a job is not specifically referred to as suitable alternative employment, it may be turned down without affecting benefits.

What benefits are available under workers’ compensation?

An injured worker is entitled to weekly compensation for lost wages, medical expenses, loss of use of a body part, and vocational rehabilitation. Vocational rehabilitation can include job placement assistance, on-the-job training and schooling.

What about non-work related medical conditions that got worse because of a work injury?

It is often said that an employer takes its employees as it finds them. Thus, pre-existing conditions that are not work-related but are aggravated by an on-the-job injury may be covered.

How long do benefits last?

Total disability benefits continue for as long as the injured worker is totally disabled, even if that is for a lifetime. Partial disability benefits can last for up to six years. At that time, the injured worker must prove to a court that the injury poses a material hindrance to his or her ability to get a job suitable to his or her limitations. If that is shown, the benefits will continue as if the injured worker were totally disabled.

How is the weekly compensation rate calculated?

The weekly compensation rate is based on the injured worker’s average weekly wage. This is the average of gross earnings from all jobs worked before the injury, including income from self-employment. The average weekly wage is then converted into a spendable base wage, which is calculated by the state and roughly represents take home pay. The weekly compensation rate is 75% of the injured worker’s spendable base wage, up to a maximum that is set by the state for the year that the injury occurs. As of September 1, 2007, the maximum weekly compensation rate was $882.00.


Can pain and suffering be collected under workers’ compensation?

Pain and suffering is not an available benefit for employees under the workers’ compensation system, in contrast to negligence claims. This means that an employer cannot be sued by an employee for pain and suffering for a work-related injury even if the injury was caused by the negligence of the employer or a co-worker.

Can a negligence claim be filed in addition to a workers’ compensation claim?

An injured worker has the right to make a third-party claim against anyone other than the employer. Common examples include the driver of a vehicle that caused an accident, other contractors on a construction site, manufacturers of defective machinery, premise owners where a defective condition caused an injury, and maintenance companies that failed to keep an area safe.

Do I need an attorney?

Workers’ compensation cases can be difficult for injured workers, especially as time passes and the interests of the injured worker and the insurance company start to diverge. The majority of injured workers do not know the intricacies of the law. Insurance companies, on the other hand, are very familiar with the workers’ compensation system. An attorney can educate you about your legal rights and obligations as well as those of the insurance company. Most attorneys do not charge a fee unless you recover compensation for your injuries, so it is usually a good idea to have legal representation.

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ellen almgren
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Keith Ruggiero
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Bethania Herrera
Bethania Herrera
Mark Gemma has been absolutely amazing. He was helpful and answered all concerns and questions I’ve had. Him and his team are beyond incredible, supportive, and sweet. I would like to thank them all for everything they’ve done.
Samantha Argus
Samantha Argus
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Diana Palacio
Diana Palacio
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Chelsie Abatiello
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Susan Hallam
Susan Hallam
After spending 8 hours in a hospital overnight to get stitches in my lip because of a drunk driver’s negligent decision to get behind the wheel, the last thing I wanted to do was think about it all. I sent an email to Gemma Law, and Mark Gemma quickly called me back with an empathetic approach to listening to my story and helping me figure out the next steps. When he told me I wouldn’t have to have any contact with the insurance companies, I was HOOKED! When he pointed out how unfortunate it was I might have to miss out on a lip modeling career from a potential scar from the stitches, I was SOLD! And when I finally received my settlement check after letting him do all the leg work while I just focused on recovering, I was and am eternally GRATEFUL! Mark Gemma helped me turn a near death experience into a new start in life and I highly recommend him to anybody needing a personal injury lawyer.
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Angie Sherman

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