The Workers' Compensation Claim Procedure
Get an idea of the steps you'll need to follow for a successful workers' compensation claim.
Workers’ compensation procedures differ from state to state, but the general concepts are similar. Most, if not all, states’ workers’ compensation procedures involve the steps we'll describe in this article.
Notice And Reporting Deadlines
Workers’ compensation laws require you to report work-related injuries to your employer within a short time period, often 30 days or fewer. To find out the deadline in your state, contact your state’s workers’ compensation agency or a workers’ compensation lawyer.
Independent Medical Examinations (IME)
After you have formally reported a work-related injury, the workers’ compensation insurer has the right to demand that you see a doctor of its choice. This exam is usually called an Independent Medical Examination (IME), but it is not independent.
The insurer carefully selects a doctor that it can count on to deliver a report as favorable to the insurer as can reasonably be expected. If the doctor’s reports start being more favorable to injured employees, the insurer will usually drop that doctor from its list of IME doctors.
At the IME, you will be required to give a lengthy explanation of your physical history, how the injury occurred, and your complaints and symptoms since the injury. After you've answered all of the doctor’s questions, the doctor will examine you. If you do not comply reasonably with the doctor’s requests, the insurer may be entitled to terminate your workers’ compensation benefits.
Some states require what are called impartial medical examinations. An impartial exam is an exam set up by the state workers’ compensation agency with a doctor selected randomly from a list of doctors that the state considers to be impartial in workers’ compensation matters. "Impartial" means that the doctor is not known to be too biased towards injured employees and is not known to accept IME requests. If a doctor on the impartial list is later alleged to be biased, the workers’ compensation agency may remove the doctor from the list.
An important feature of these impartial exams is that workers’ compensation law often requires the workers’ compensation judge or hearings officer to accept the impartial doctor’s opinion as binding medical evidence in the case, with some exceptions. That means that the judge is usually going to accept whatever the impartial doctor says, even if the impartial doctor disagrees with your doctor and/or the insurer’s doctor. So the impartial exam is a very important exam; it has the ability to make or break your workers’ compensation case.
Some states require that all issues in the case be decided at one hearing; others allow for a series of hearings over a number of months. Either way, the usual issues to be decided at a workers’ compensation hearing are:
- whether the employee suffered a work-related injury
- if the employee had a prior injury, whether the current injury was a new injury for which the current employer should be responsible, or an aggravation of an old injury, which would free the current employer from responsibility
- the employee’s average weekly wage
- the employee’s extent of disability
- the reasonableness of the employee’s medical treatment, and whether the insurer should pay the employee’s medical bills
Who Pays Your Lawyers' Fees
Different states have different methods for the payment of lawyers in workers’ compensation cases. In personal injury cases, attorneys customarily take one third of whatever they collect for their client as their fee. That is generally not permitted in workers’ compensation cases. At standard workers’ compensation hearings, attorneys fees are determined in either of two ways:
- the attorney’s fee is a percentage of the weekly compensation retroactively awarded at the hearing, generally 20% or less
- the attorney’s fee is a flat fee determined by the judge, paid by the insurer separately to the attorney, over and above what the employee is awarded.
For lump sum settlements, most states allow the attorney to take a percentage of the lump sum settlement, again generally 20% or less.