A Few Basic Tips for Injured Workers

I get a fair number of calls from people who have been hurt on the job and want some legal advice, sometimes leading to an attorney-client relationship. Certain questions come up frequently, and I think it would be apropos to offer some essential workers’ compensation information in this space.

“Does it matter if the employer was negligent?” It usually does not matter who is “at fault” for a work-related injury. Unless the employer or employee was drunk, was totally reckless, or intentionally caused an injury—and these are rare circumstances—the most important question is whether a given injury is work-related. That is, did it happen as a consequence of work-related activities?

“Can I sue in court?” The legislative compromise that resulted in the no-fault concept I just mentioned resulted in obvious drawbacks for Maine employees who have been hurt. Perhaps the most important are the limitations on damages—or what would be damages in a different kind of case, such as a motor vehicle accident—available to employees. Most injured workers can get payment for medical and related expenses and partial compensation for lost wages but nothing else. Someone who suffers a really severe injury, such as losing a limb or digit or eye, can get specific loss benefits. But those benefits are modest (to put it mildly) and cannot really compensate for such a critical, permanent injury. Hence, punitive damages, compensation for pain, suffering, or lower quality of life, and various other remedies from other types of legal action are not available to most people who are hurt at work.

“I didn’t report the injury right away—is that a problem?” As a rule, you should notify your employer immediately whenever any real injury happens at work. Of course, a paper cut probably will not result in an injury that requires medical intervention and lost time from work. But anything more than that should be reported as soon as possible, because you can lose your right to workers’ comp benefits if you fail to notify your employer within 30 days of the incident. Sometimes a failure to notify can be excused—for example, if you did not know you had an injury until months afterward—but most of the time you can find yourself in trouble.

“My employer is refusing to report my injury to the workers’ comp insurance company—is that allowed?” The short answer is “no.” If there is no realistic possibility whatsoever that you have a work-related injury yet you insist on claiming to your employer that you do—I have never encountered such an employee, who I assume would have a mental illness—then it would be safe to refuse to submit a claim to the insurer. But I would imagine a situation where someone imagines he has lost a hand that is clearly still on his arm and keep that in mind if I were an employer. Otherwise, if your boss just thinks your injury is not very serious, he or she has to submit a report of injury and let an insurance adjuster make the decision. If the claimed injury is debatable, the employer’s representative does not have the right to deny that it is work-related and then refuse to tell the insurance carrier about it. In fact, the employer can face financial penalties for doing so. (Also, it is not acceptable to pretend to lay off an injured employee so that he or she will collect unemployment benefits instead of workers’ compensation.)

“Can the insurance company spy on me?” Um, yes, the insurance company is legally allowed to hire a private investigator to ensure you are not committing fraud. That PI may follow you around town, observe you from a vehicle down the street from your house, take pictures, ask neighbors about you, and so on. Of course, there are legal limits on such surveillance, but I do not consider the limits sufficient to protect people’s privacy. I have heard a number of employees’ stories about surveillance and investigation, and it is fairly creepy when you see a report that someone has been followed from home to the supermarket, the bank, the post office, and back. I doubt that insurance companies actually discover enough fraud to offset the costs of paying their investigators, but many adjusters are convinced that the majority of people getting benefits are abusing or defrauding the system.

“I have a lot of stress from my job—can I get workers’ compensation?” Probably not. Pure mental health claims are difficult to show and, furthermore, face a high burden of evidence. That part of the law has been written to prevent the award of benefits to scam artists and malingerers; it may be too restrictive, however, as some legitimate claims are lost causes. The stress that caused your depression, anxiety, PTSD, or other mental condition must be from your job—that is to say, non-work causes of stress cannot be primarily responsible for your mental health problems. You also need clear and convincing evidence, such as witness testimony about an event, and expert opinions from psychiatrists and psychologists. Finally, the stress must be extraordinary and unusual when compared to the stress experienced by average employees in the state—something like emotional trauma after witnessing co-workers die in a train wreck should suffice. If, however, you are having severe panic attacks because your manager is singling you out for verbal abuse or insomnia because of a major increase in your workload or something on that level of seriousness, then you may find yourself having an injury without available compensation.

“What if I am having emotional or mental problems because of a bodily injury?” Here I finish on a more promising note. While it is terrible that people are seriously hurt on the job and often get paltry compensation agreements that fail to restore them financially or medically, the phenomena we call “sequelae” often help workers get the compensation they need.

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