If you have been injured on the job, you deserve justice. Workers’ compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee’s right to sue his or her employer for the tort of negligence. While various plans differ, provision can be made for weekly payments in place of wages, compensation for past and future economic loss, reimbursement or payment of medical and like expenses, and benefits payable to the dependents of workers killed during employment. The theory for workers’ compensation insurance is that the loss suffered by an employee due to an industrial injury should be borne directly by the industry in which the employee was hired and indirectly by the general public. As such, workers’ compensation is a “no fault” system and an injured employee need not establish that his employer was negligent in order to receive a compensation award.
Who is Covered by Workers’ Compensation?
Under the Workers’ Compensation Act, a covered “employee” includes every working person other than independent contractors. Those receiving on-the-job training and students enrolled in state-approved vocational programs are also covered as long as they are not on the premises of a public school or community college. There are, however, certain people exempted from coverage including, but not limited to, church ministers, officials at amateur athletic events, and cosmetologists. Any conduct on the part of the employer that would lead a reasonable person to believe that the person was employed is sufficient to establish an employment relationship for the purposes of the Workers’ Compensation Act. Our lawyers at Datsopoulos, MacDonald & Lind, P.C., are happy to evaluate the facts of your case and provide you with a competent coverage analysis.
What Types of Accidents and Injuries Are Covered?
“Injury” means internal or external physical harm, including damage to certain prosthetic devices and death, that is caused by an accident. An “accident” is an unexpected traumatic incident or unusual strain, identifiable by time and place of occurrence and by the part of the body affected, and caused by a specific event on a single day or during a single work shift. An injury must be proven by objective medical findings. Psychological problems, suicide and aggravation of pre-existing conditions may be covered if the problems stem from a compensable work-related injury. Covered injuries include, but are not necessarily limited to: neck injuries, back injuries, exposure to toxins, burns, scars, disfigurement, spinal cord injuries, traumatic brain injuries and eye injuries.
For an accident or injury to be covered, it must arise out of and occur in the course of employment. Factors relied on to determine whether a work-related injury occurred include: whether the activity was undertaken at the employer’s request; whether the employer directly or indirectly compelled the employee’s attendance at the activity; whether the employer controlled or participated in the activity; and, whether both the employer and employee mutually benefited from the activity.
Types of Compensation Awards.
There many types of compensation awards available including: total disability awards (for injuries producing temporary or permanent total disability); partial disability awards (for injuries producing partial disabilities); medical services (the insurer must pay reasonable medical services); occupational disease awards (compensation must be equal to the compensation and medical benefits for injuries); temporary total disability benefits (paid while the claimant suffers a total wage loss and until the worker reaches maximum healing or has been released to return to work); temporary partial disability benefits (paid if a claimant is returned to work with a loss of wages before maximum healing); permanent total disability benefits (paid after a claimant reaches maximum healing and has no reasonable prospect of physically performing regular employment); permanent partial disability benefits (paid if a worker: has a permanent impairment that is established by objective medical findings; is able to work in some capacity, but the impairment impairs his ability to work; and, has actual wage loss due to the injury); death benefits (a surviving spouse may be entitled to death benefits); and, vocational rehabilitation benefits.
How and When Do I File a Benefit Claim?
Before filing a formal claim, an employee/claimant must give notice of injuries to his or her employer or the insurer within 30 days of the accident. Actual knowledge of an accident is considered adequate notice. The notice requirement is satisfied when an employee reports the accident within 30 days and apprises the employer, to the best of his or her ability, whether any adverse physical consequences occurred from the accident. Generally, an employee who has a reasonable belief at the time of the accident that he or she has suffered no injury that would require treatment or is otherwise compensable is not barred from recovery because he or she learns otherwise beyond the 30-day period.
After timely and proper notice is given, an employee/claimant with a dispute concerning workers’ compensation benefits must first request mediation of the dispute with the Department of Labor and Industry. If mediation does not resolve the dispute, the claimant can petition the workers’ compensation judge who has exclusive jurisdiction to make determinations concerning such disputes. An appeal from a Workers’ Compensation Court goes directly to the Montana Supreme Court. The benefits to be paid are determined by whatever statute or law was in effect on the date the worker was injured.
Claims for personal injury or death due to an accident must be presented within one year. Claims for an occupational disease must be presented within one year from the date the claimant knew or reasonably should have known that his condition resulted from an occupational disease.
What if My Employer Does Not Provide Coverage?
An employee is allowed to pursue an independent cause of action against an uninsured employer for failure to be enrolled in an appropriate compensation plan. Such an action must be brought in the district court in the district where the employee/claimant lives or where the alleged violation occurred. Additionally, the Workers’ Compensation Act establishes an uninsured employers’ fund which is funded by the penalties collected from uninsured employers. A worker injured while employed by an uninsured employer may pursue all remedies concurrently, including: a claim for benefits from the uninsured employers’ fund; a damage action against the employer; an independent action against the employer to recover benefits that would be due under the Workers’ Compensation Act had the employer been enrolled in a compensation plan; and, any other available civil remedy.