What to Do When You Are Denied Workers Comp

Workers comp claim with denied stamped on itIf you’re here because your workers compensation claim was denied, take heart. Yes, you are in a tiny minority, and the battle is uphill, but there’s still an excellent chance you will win on appeal — and you might even be better off than if you were approved to begin with.

We’re not making this up.

A landmark study by big insurance brokerage and risk adviser Lockton found that from 2013-2017, the denial rate for workers comp claims surged about one-fifth, to nearly 7%.

Yes, employers and insurance companies were on offense.

But wait.

If companies imagined they were going to save money by denying claims, they saw that idea blow up in their faces: Perversely, the study not only revealed two-thirds of those denied claims were approved within a year, the payouts were 55% higher — $15,694 on appeal vs. $10,153 for claims accepted at the outset.

What this means to you, worker whose initial claim was denied, couldn’t be clearer: You’re not sunk yet. But you will want to consider seriously whether to take on representation.

“If the claim is denied in whole or in part,” says Chicago workers comp attorney Mark Bergal, “the employee should contact an attorney immediately. … In the case of a denial of workers comp benefits, time is of the essence.”

How to Appeal a Workers Comp Denial

The denial letter you receive should include information about filing an appeal — what steps you must take and how long you have to act. Know the deadline — in most states it ranges from 30 to 90 days — and do not miss it.

If you have well-founded evidence your claim failed as a result of fraud, administrative error, or some other irregularity, request a complaint form from your workers compensation administrative office (find it via the U.S. Department of Labor).

Contacting the Insurance Company

When news of the denial is still fresh, take a few deep breaths, count to 10, meditate a little while, and reread the introduction to this article.

Now, get the folder (physical or digital) where all your documentation has been neatly filed. (You do have a folder, right?) Dial back your rage. When calmness reigns, ring the claims examiner.

As veteran lawyer and legal writer (FreeAdvice.com) Lauren Blair notes, denials sometimes result from a clerical error, a misinterpretation, or some other technical malfunction.

A resolution may be as close as a simple, civil 15-minute telephone call and a couple of follow-up emails.

Filing an Appeal

If your friendly call provided no satisfaction, you most likely will want to file an appeal. Now it gets complicated: You and the insurance company are officially legal adversaries. Going it alone is not recommended.

“In many cases,” Bergal notes, “after an attorney gets involved, the carrier will change their position, accept the claims in full, and initiate benefits.”

Again, laws vary by state, and navigating the nuances requires local expertise. If you choose to go it alone, know this going in, says legal writer Blair: The burden of proof is on you.

So, know your case, your documentation, and the applicable law. Know, too, the procedure the administrative judge hearing your case prefers to follow.

Be ready to refute claims about your injury with a second medical examination. Be able to prove you were at work, or performing within the course and scope of your duties.

Remember, too, there may be several levels of appeal in your state.

Mediation

Mediation — also called a settlement conference — consists of an informal negotiation in which the parties (you and the insurance company) discuss/argue/debate your claim with the assistance of a trained, neutral third party, and attempt to come to an agreement.

No witnesses will be presented. No one will be put under oath to testify. The mediator — someone with expertise in workers compensation law in your state — will attempt to get the parties to an agreement.

Be on time. Be neat and tidy. Be courteous. Be professional.

And be aware, says Joanna Jang, an Atlanta-based workers comp attorney at Swift Currie, the mediator cannot force a decision on either side; his/her role is to bring the parties to an acceptable resolution.

Administrative Hearing

If mediation fails, the next level of appeal is to an administrative hearing. Instead of the adjuster deciding about your case, it’ll be an administrative judge.

Because the burden of proof remains with you, be ready to defend your case by presenting evidence, witnesses, and accurately citing relevant employment laws. Highlight your medical records in support of your argument.

Better still (at the risk of committing monotony), consult an attorney skilled in workers comp law. You can bet the insurance company will have legal representation.

Once it’s over, it may be weeks before a decision is announced.

Additional Appeals

Further appeals are possible.

In many states, you can file a second administrative appeal, in which a workers compensation appeals board, or a panel of workers comp judges, handle this portion.

Generally, this stage, known as a board appeal, is not the place to present evidence and witnesses. The trial stage is over. Here, you will argue the hearing officer’s errors.

This process can take months.

Didn’t like that result, either? In most states, the final step is to appeal through the state court system. Assuming no acceptable last-ditch settlement offer emerges, a trial that proceeds like any lawsuit will follow, with a decision rendered by a judge or a jury.

Now you’re looking at a process that can take years, and can lead to even more appeals.

Reasons Your Claim Might Be Denied

The eye-popping Lockton study notwithstanding, employers and insurance companies dispute and deny claims hoping to save money.

“Unfortunately, not every employer adheres to their legal responsibility to provide workers’ compensation benefits,” says York, Pa., attorney Dean V. Dominick — who, understandably, recommends professional representation. “Sadly, employers such as these will often take advantage of unrepresented employees, using their unfamiliarity with the law to save money.”

Know this, too, says Jang: Because claims can be denied in whole or in part, “It can be risky to assume income benefits will be awarded just because the employee sustained a [covered] injury at work.”

Make no mistake: Insurers would rather not pay. Employers would rather not see their premiums rise. So they look for opportunities to invalidate claims.

Missed Deadlines

When it comes to reporting a workplace injury (or illness), time truly is money. Missing workers comp deadlines and waiting too long to report to your employer (through a supervisor, human resources, or health committee), or to file a claim, and you risk denial.

“The longer and injured worker waits to report a claim,” says Atlanta attorney Jang, “the more questions it could raise for an employer.”

  • Notifying Employer – Your company probably has a policy regarding how quickly a work-related injury or illness it prefers being informed — often 24 to 48 hours. However, your employer’s policy does not have the force of law; instead, state statute provides the deadline, often 30-45 days.
  • Filing a Claim – Making application for benefits ordinarily follows notice to the employer. Again, deadlines for filing vary from state to state, but, generally, applications for benefits filed within one year of the date of the accident or injury beat the statute of limitations.

Employer Disputes Your Claim

Because successful claims put upward pressure on workers comp insurance premiums, employers look for reasons to dispute claims. All they need is one of the many detailed in this list. But they’ll take a bagful if they can get them.

Among their options: Employers may argue the details of your report are inaccurate, or you weren’t at work when you were injured.

Additionally, employers have allies in insurers, who employ investigators to see whether the injured worker’s allegations are legitimate.

Inconsistent Accident Report and Medical Records

If your injury is more severe than would ordinarily result from the incident you reported — you claim a dislocated shoulder and a herniated disk from moving 10-pound boxes, for instance — there’s going to be scrutiny, and probably a challenge.

Moreover, if you tell your employer the accident happened one way, but describe a different scenario to the doctor, you’ve created a red flag. Consistency is critical.

Injury Is Not Work-Related

Injuries suffered during your typical work commute are not covered. Neither are injuries incurred when you’re away at lunch, with certain exceptions: You were sent by supervisors to pick up up meals for the team, or you’re attending a working lunch approved by the bosses.

The controlling factor is whether you were acting within the “course and scope” of your employment. You’re injured in a traffic crash while running a personal errand: Not covered. You’re injured in a traffic crash traveling to or from meeting with a customer: Covered.

Injury Is Not Compensable

What constitutes a compensable injury — that is, a condition covered by workers comp insurance — varies by state. For instance, some states allow claims for incapacity linked to psychological stress; others do not.

Suppose you’re hurt while working at home, as many have been since the coronavirus outbreak in March. Is your injury covered? It depends on the state, the circumstances, and the evolution of tort law in the wake of WFH become a commonplace acronym.

Whatever the circumstances, you need to be certain your injury/illness is covered under your state’s workers compensation laws.

You Never Received Medical Care

Seeking financial compensation for an injury that wasn’t sufficiently severe to send you to the doctor is unlikely to fly. It is essential, then, that you receive medical attention after a workplace injury.

Not only is it important to your well-being, without receiving medical care you won’t qualify for benefits.

You Were Treated by an Unapproved Doctor

Generally, treatment for your claimed injury must be provided by doctors from an approved list. If you’re thinking approved physicians are friendly to the company and the insurer and may minimize your injury, you may be right.

Nonetheless, going outside the network is a good way to get your claim nullified.

“In most cases,” attorney Jang says, “seeking unauthorized treatment could lead to the injured worker becoming responsible for the medical bills.”

This boss-insurer-doctor relationship is among the best reasons to have an attorney working your case early on, to help make certain, even within network, you get the required treatment and the proper benefits.

You Have a Pre-Existing Condition

This area of workers comp law is especially tricky. An impairment that existed before your workplace injury could reduce the benefits you receive. Hurt the knee at work that became arthritic after an old football injury and you’re likely to be compensated less than a colleague with a hip replacement who injures his knee.

Why? In most states, employers are liable — in terms of compensation — only for the degree to which your pre-existing condition was worsened. The boss may attempt to argue, after you mended, you were back to your old self.

On the other hand, say you had an old non-work injury — you sprained a shoulder playing beach volleyball. You were treated, did rehab, and you’ve felt fine for years. If that same shoulder goes lame in a work-related mishap, you should be compensated as if you never were hurt.

Don’t be surprised, having reviewed your medical history, when the insurer tries to argue you aggravated that old wound, and shouldn’t be compensated as though it were new.

You Were Fired, Laid Off, or Quit Before Filing the Claim

Dawdling when it comes to filing your claim is never helpful. But if you somehow lose your job while you were dragging your feet, your late-arriving claim will reek with the scent of revenge-seeking disgruntled former employee.

Refusing to Give a Recorded Statement

While workers comp insurers frequently ask claimants to provide a recorded statement detailing the accident and injuries, the employee is not required to submit.

This is a classic rock-and-a-hard-place scenario. If the insurer asks to record a statement, it’s often a sign there are doubts about the case. Providing a statement is unlikely to clear up those doubts, but refusing can be used as a reason to deny or delay benefits.

If you’re asked for a recorded statement, what you should hear is, “I need a lawyer.”

There Were No Witnesses

If you sprain an ankle slipping on an unmarked wet spot, or you fracture a femur stumbling over unsecured cables, and no one was around to see it — did it really happen?

This is not a philosophical question. It is a ready line of defense for the insurer to deny your claim.

Your defense is to be proactive: Report your injury to coworkers and your supervisor immediately. Make sure of the details, and be certain to tell everyone exactly the same thing about the circumstances involving your injury.

In the absence of witnesses (or CCTV), a consistent narrative is your ally.

Witnesses or not, legal experts recommend preserving the scene of the accident on your smartphone. Take wide shots and closeups; you’ll want to be able to show context as well as detail.

Especially absent witnesses, photographic evidence can bolster your claim.

You Were Under the Influence of Drugs or Alcohol

Employees injured while under the influence of drugs or alcohol have an uphill climb. Most states’ workers comp laws disallow claims for injuries that result from the employee’s intoxication.

In some states — among them Texas, Florida, Ohio, and North Carolina — employers and insurers can assume an injury was nonoccupational (not covered) if drug testing reveals high levels of alcohol or drugs.

Such defenses are not slam-dunks. Much depends on when the drug test is taken. A delay of a day or two can make the insurer’s case difficult to prove.

Moreover, the employee’s condition generally has to be a contributing factor. You’ve had a snootful and you fall off a ladder, you’re probably not covered. You’ve had a snootful and you’re knocked off a ladder by a reckless forklift driver, you’re probably covered after all.

Because such situations can be extremely nuanced, you will want an experienced workers comp lawyer to argue your injuries occurred within the course and scope of your job.

Injury Was Result of Horseplay

If your workplace injury was the direct result of horseplay or a practical joke you initiated (or in which you willingly participated), your claim likely will be denied.

If, on the other hand, you simply happened to be at the wrong place at the wrong time, or you were the target of extracurricular hijinks gone wrong, you will be eligible for benefits.

Similarly, if you initiate a fight at work, your subsequent injuries won’t be covered.

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About the author

Tom Jackson won dozens of national awards as a columnist for newspapers in Washington, D.C., Sacramento and Tampa. His writing has spread from business to politics to sports with an emphasis on community issues. Tom splits his time between Tampa and Cashiers, N.C. with his wife of 40 years, a college-age son and a yappy Shetland sheepdog named Spencer. Tom can be reached at [email protected].