Procedures for Filing a Workers' Compensation Claim

Workers' compensation procedures differ from state to state, but the general concepts are similar. Most states' workers' compensation procedures involve the steps we'll describe in this article.

Workers' Comp: 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.

File Your Workers' Comp Claims Paperwork

Your employer should give you the paperwork to file your workers' comp claim after you report your injury. If that doesn't happen, you can request it or file your claim online at your state's labor department website.

The deadline for filing your claim varies depending on your state, but it is usually at least one year from the date of your injury.

What Is an Independent Medical Examination (IME) for Workers' Comp?

After you've formally reported a work-related injury and filed your claim, 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 isn't truly 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 begin to favor 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 don't comply with the doctor's requests, the insurer may be entitled to terminate your workers' compensation benefits.

Impartial Exams for Workers' Comp

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 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.

What Happens at a Workers' Comp Hearing?

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, and
• the reasonableness of the employee's medical treatment, and whether the insurer should pay the employee's medical bills.

Appeal Your Workers' Comp Denial

If your claim is denied, you have the right to appeal to the workers' comp appeal board in your state. Each state has its own deadline for filing your appeal; between 30 and 90 days is typical.

For help filing your workers' comp appeal, it's always a good idea to contact an experienced workers' comp attorney.

How Do Workers' Comp Lawyers Get Paid?

States have different methods for determining how lawyers are paid in workers' compensation cases. In personal injury cases, attorneys customarily take one-third of whatever they collect for their client as their fee. That arrangement is generally not permitted in workers' comp cases. At standard workers' compensation hearings, attorneys' fees are calculated in one 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. (Read our article on costs and fees to learn more.)