Home Workers' Compensation Practice Areas About Us Locations Contact Us


I. Introduction to Workers Compensation Law:

Shortly after the turn of the century, the United States has imposed and implemented a law that addresses a very serious societal problem. During those times, the state encountered several cases of injured workmen in their respective workplaces. With this rise of injured worker in the industrial setting, a no- fault system of legislation was instituted, this is known as the Workers Compensation Law. Before the realization of this law, it was first known to be Workmen's compensation in earlier days which provides injured workers compensation to pay his medical expenses and loss of employment income only when the worker would be able to hire a lawyer and bring the case in Court accusing the employer and other party of negligence.
The courts then were overwhelmed with the multitude of this kind of lawsuit. In some cases where the worker was able to provide a lawyer for the case, the process didn't come so easy. Even if negligence was established, the road to recovery was drawn out and expensive making the workers in equal situation as losing his home, health and family while waiting for relief.
These injured workers became a drain upon society since large number of indigent is supported. Due to this, legislators across the United States came up with the proposal to adopt the workers compensation designed to withdraw law suits against employers from the Court system and to provide some measure of rapid compensation to the injured worker, regardless of who's at fault. Thus, the workman's compensation law was considered a very early instance of no- fault legislation. Each state proclaimed their own workman's comp law which provides compensation for injured workers consisting of disability compensation and medical care whenever the injury is in the course of job connected activities. Many features are common among the Workers comp law though this law vary from state to state.

II. Basic Features of Workers Compensation

The following features consist a typical Workers Compensation statute:

a. The Compensable Injury Requirement
Whenever a worker experiences or suffers an accidental personal injury or some state of occupational disease arising out of and in the course of the employment, the worker would be automatically entitled to certain compensation. Different states have their different definition employed to qualify the injured worker for worker's compensation benefits as some state would categorize and define it in a more peculiar way than others. Some states would have a different definition of the word "accident" and not all states even have that word in their statutes. Therefore, the injured worker should always seek an experienced workers compensation attorney in these cases as even the phrases "arising out of" and "in the course" or "scope" of employment also differ between the states thus, giving new meaning to the cautionary instruction that



•"Arising out of "- The injury was caused by a risk to which the worker was subjected by his or her employment.

•"In the course of "- This is a term involving consideration of the time, place and circumstances of the accident in relation to the employment. Thousands of state court decisions can be found discussing such issues as going to and from work, walking into the plant from the parking lot, coffee breaks, lunch breaks, trips between employment locations, company sponsored picnics or sporting events and the like.


b. Fault Is Irrelevant
Even there were cases that rose such as horseplay, intoxication and willful disobedience to the employer's instruction, fault on the part of the employer or worker will always be irrelevant.

c. Employee vs. Independent Contractor
The law only covers those having the status of an employee as opposed to an independent contractor. There are many distinctions that tried to set the difference between an employee and an independent contractor, but still the distinction in many and most of the cases remain unclear. Many employers then choose to call their workers independent contractors due to extremely favorable tax considerations such as no social security tax, no withholding taxes, no unemployment taxes and not to mention the savings on the workers compensation insurance premiums. However, workman's compensation laws generally permits the attorney of an injured worker to dispute as to whether the status of an employee was that of an employee rather that of an independent contractor. An adjudicatory officer in a worker's compensation complain shall be in the authority to reject the employer's characterization of the worker as an independent contractor. The employer's failure to deduct taxes from the workers' paycheck and even a written contract calling the employee an independent contractor are not determinative. The attorney representing the injured worker may be able to demonstrate that despite a written agreement, the worker was, in reality, an employee and not an independent contractor, thereby qualifying the worker for workman's compensation benefits.

d. Workers Compensation Temporary Total Disability Comp
Whenever the worker would be out of work under medical care also known as temporary total disability of anywhere from one-half to two-thirds of the worker's average weekly wage, Loss of income compensation would be made. Insurance carriers seeking to terminate a workers' temporary total disability compensation often seek what is called an "independent medical examination by a doctor of its own choosing," but the term "independent" is more often than not misplaced and a more accurate term would be "defense medical evaluation."



e. Permanent impairment or permanent disability compensation
The workman's compensation law by the different states provides the injured worker compensation for certain categories of permanent injury. These are also different for general damages for pain and suffering such as are in civil damage claims brought by attorneys within the court system. Even with the implementation of a compensation law, different states would really vary as to the type of injuries that qualify for permanent impairment or permanent disability compensation, as well as the amount of money allowed for permanent injuries. An attorney experienced in handling workers comp claims in a particular jurisdiction must be consulted to accurately describe the compensation structure of that state and to estimate the "value" of a particular workers' compensation claim.

f. Death benefits compensation
As a worker dies out of or as a result of a job related accident, most of the states grant some form of compensation to the family of the worker who was killed. This compensation is given with the intention to replace the lost stream of income to the decedent's surviving dependents. However each state would differ on the criteria that they will follow in qualifying a survivor that will be entitled to be compensated for the death of the worker and as to the amount that the survivors are entitled to receive. It is important to consider that unlike a civil damage claim in the Court system, the worker's compensation law focuses not on the grief, mental pain and suffering or loss of society and companionship brought about by the worker's death but it is mainly focused on the loss of income being produced by the deceased worker for the surviving beneficiaries. This is the main focus of the lawyers in the workers compensation claims.

g. Hospital, medical and vocational rehabilitation expenses
The law covers generally all reasonable and necessary compensation for medical care required by the injured worker which includes the different prescriptions, medical supplies, laboratory work-ups and many others. It is of a must also, that the medical condition requiring treatment must be causally related to the injury in the work place. The amount of the charges made by the medical care provider for treatment are then regulated by the state and charges are made in excess of the permitted amounts unenforceable by the medical care provider. Same as with the previous features, states would differ again in the way they will approach this case with regards to the right of the injured worker to choose the person or medical team to provide his/ her medical care. Other states leave this choice entirely up to the claimant and other states strictly regulate it by requiring that physicians be chosen from panels or selected by the employer.




h. "Statutory Immunity" of the Employer – Third Party Suits
Since under the worker's compensation law, with the fault of either the employer or worker being always considered irrelevant, all workers are entitled of compensation, it is also expected that the worker is deemed to have given up his or her common law right to sue the employer for negligence and damages for any injury covered by the statute. This is called the "statutory immunity" of employer wherein it is one of the historic trade-offs legislatures made to justify requiring employers to pay workers compensation regardless of whether they were at fault.
Third party suits happen when some of the state retain the right of the worker's lawyer to sue an outsider who is a person or company other than the employer for negligence or any other tort theory of liability, such as product liability or medical malpractice associated with the rendering of medical care for the workers comp injury. Also states vary again in this matter such as issues who constitutes a third-party, what portion of the recovery from the third party suit the worker may keep and what portion of the compensation for damages in the third party suit must be repaid to the employer and its workers comp insurance carrier. Lawyers familiar with the law in a particular jurisdiction should be consulted to ascertain the worker's rights with respect to third party suits.

i. The administrative agencies or commissions are the ones responsible for the administration of workers compensation claims. Rules of procedure and evidence are generally relaxed in front of these agencies. A Commissioner or administrative law judge presides over workers compensation hearings and makes rulings on objections and procedural issues raised by the lawyers, similar to a judge in a law court.

J. Insurance generally, in every state the employer must secure insurance coverage against workers comp claims through the purchase of private insurance or state-fund insurance. Many states have a procedure for authorizing larger, more secure employers to be their own self-insurer.

III. Distinction Between Covered Workers Comp Injuries and Occupational Diseases


a. Covered Injury
The definition of the term injury vary from state to state, In many states an injury must be an event taking place within a relatively short time frame that has produced physical harm to the injured worker. Other states require a form of trauma while other states with laws containing the term "accidental injury" disallows claims for lifting or strain injuries not produced by a traumatic event such as slipping, tripping and falling, unless the amount of lifting required of the employee can be shown to be unusual for the particular employment. For instance, Maryland had just such a peculiar, court-created definition of the term "accident," until it was overturned by a well-reasoned decision of the Maryland high court in June, 2003. Other states will allow almost any claim for an injury which is causally related to work activity. An injured worker should never assume his/her injury is clear cut or covered and should always seek an experienced attorney as soon as possible after the injury.

b. Occupational Disease
It is commonly defined by the different states as a disease or condition which is a characteristic of the trade or occupation of the worker of which the medical evidence shows that the disease is causally related to the trade. This simply means that the law does not cover any disease which might be contracted in other occupations or in everyday life apart from employment and they will not be compensated for that.

IV. Types of Workers Comp Disability Compensation

a. Temporary Total Disability
This benefit is allocated when the injured worker is unable to work during a period because he or she is undergoing active medical care and has not yet reached what is called "maximum medical improvement". In simple words, once a "maximum medical improvement" has been reached the condition can no longer be categorized as temporary. Oftentimes, arguments arise both on the issue as to if the injured worker is truly and absolutely disabled from work and on the issue of whether maximum medical recovery has been reached. States again have different approach regarding how they treat situations where the worker is released to light duty work, but the employer will not offer light duty, or those situations where the employer declines to permit the injured worker to return to his job, even after a full duty release. In most states, compensation is paid at two-thirds of the employee's average weekly wage, not to exceed statutory weekly maximums above which no worker is entitled to compensation. It is not unusual for a worker's temporary total disability weekly benefit to be capped by these statutory compensation limits.

b. Temporary Partial Disability
When the injured worker is still able to do some work but is still recuperating from the effects of the injury and is thus, temporarily limited in the amount or type of work which can be performed compared to the pre-injury work, the worker may be eligible for temporary partial disability compensation

c. Permanent Partial Disability
Compensation is awarded for certain types of permanent conditions which do not cause the worker to be totally unable to work. As previously indicated, there is a wide variety of different ways the various states treat permanent injuries, and it is necessary to consult lawyers in your state experienced in handling workers compensation claims to understand your states' rate structure for permanent injuries.

d. Permanent Total Disability
If the employee generally shows inability to return to work in any capacity making it a permanent problem then he or she will be able to receive this type of compensation. On the other hand, there are rulings in many states to the effect that a worker who can perform only occasional, sporadic or undependable work, may still be deemed to be permanently totally disabled. In most of the cases, a states' workers comp law permits attorneys to offer evidence of a workers age, education, training and experience in seeking to prove that the worker is incapable of substantial gainful employment.


e. Disfigurement/Mutilation
In cases of disfigurement or scarring, frequently in the absence of any actual impairment, and sometimes in addition to actual impairment, the employer are also required to give compensation to their workers as indicated in the states' worker's compensation


V. Summary:

The workers compensation system in most jurisdictions is a highly complicated statutory scheme that varies as different states would apply this law depending on their own and unique jurisdiction. The system is primarily instituted so that anyone can afford to have a worker's compensation attorney so there would be virtually for any injured worker not to immediately seek an experienced lawyer. In the jurisdictions in which we practice, Maryland, Virginia and DC (The District of Columbia) Ashcraft & Gerel's lawyers have handled tens of thousands of workers comp cases over a period of more than 50 years, and we would welcome the opportunity to provide a consultation on your workers compensation claim.
If you have a D.C. (District of Columbia), Maryland or Virginia workers comp claim (or a Defense Base Act, Longshoremen and Harbor Workers Compensation Act or Non-appropriated Fund Instrumentalities Act claim), and have a question or would like to inquire about the possibility of having us represent you, please feel free to either fill out the "Contact Us" form on the left side of this page or email us. In addition, you can telephone us at one of our locations. The telephone numbers of our offices in the Washington DC metropolitan area, i.e., the District of Columbia, Maryland, Virginia or even Baltimore City can be located by clicking on the particular office you wish to call in the box in the upper right corner of this page.