{"id":5099,"date":"2020-12-16T09:53:20","date_gmt":"2020-12-16T13:53:20","guid":{"rendered":"https:\/\/joemillerinjurylaw.com\/?p=5099"},"modified":"2020-12-16T09:53:20","modified_gmt":"2020-12-16T13:53:20","slug":"when-are-workplace-injuries-not-covered-by-workers-compensation","status":"publish","type":"post","link":"https:\/\/joemillerinjurylaw.com\/when-are-workplace-injuries-not-covered-by-workers-compensation\/","title":{"rendered":"When Are Workplace Injuries Not Covered by Workers\u2019 Compensation?"},"content":{"rendered":"

Most people automatically assume if they are injured at work that they\u2019re covered by their state\u2019s workers\u2019 compensation<\/a> laws. And, for the most part, that\u2019s true. If you slip and fall<\/a> or suffer some other accident at work, in most cases, you should be covered. If you are loading very heavy items into a cart and wrench your back, you should be covered. If a forklift tips over or malfunctions, and you are injured, you should be covered.<\/span><\/p>\n

In workers\u2019 compensation cases, there is no need to prove fault. Generally, if you\u2019re hurt while doing your job, you should be entitled to have all your medical bills paid by your employer\u2019s insurance company and approximately 2\/3rds of your wages while you are temporarily totally disabled for up to a maximum of 500 weeks, or if you become permanently or partially disabled. Permanent partial disability benefits are paid for a specific number of weeks.\u00a0<\/span><\/p>\n

As with every rule, though, there are many exceptions. There are a few situations where your injuries will not be covered \u2013 in some cases, because your employer is not required to be insured, in other cases because of some misconduct on your part, and in others, because the injury you suffered is not considered to have arisen out of your employment.<\/span><\/p>\n

The Employer is not Required to Carry Workers Compensation Coverage<\/i><\/b><\/p>\n

Unless the employer has more than three employees who are regularly employed in the business, then they are not required to carry workers compensation coverage.\u00a0<\/span><\/p>\n

The most common scenario where this issue comes up is with construction companies. The employer will actually have many more than 3 workers who regularly work for the employer, but the employer will claim that everyone is an <\/span>independent contractor<\/span><\/a>. Oftentimes, this is actually not the case. When you analyze the situation, you begin to realize that all of those \u201cindependent contractors\u201d are treated no differently than an employee would be treated. They show up at a specific time every day. They are required to follow the rules and directions of the boss. They generally work nowhere else except the employer. The employer supplies all of the equipment for the job. No matter what they employer calls them, these workers are employees and must be covered.\u00a0<\/span><\/p>\n

So what happens if the employer has no coverage? In North Carolina, unless the employer was somehow at fault, you are out of luck, unless there was a general contractor over the employer who was insured. Sometimes you can find coverage there.\u00a0<\/span><\/p>\n

In Virginia, if there was no insurance with the general contractor, the Commonwealth of Virginia maintains something called the <\/span>Uninsured Employer Fund<\/span><\/a> which is designed for just such situations. They will stand in the place of the insurance company and pay the claim. Of course, after the fact, they will go after the employer and attempt to recoup their payments.\u00a0<\/span><\/p>\n

NOTE: Just because your employer does not have more than 3 employees in the business DO NOT ASSUME that he does not have coverage. IF the employer ELECTS to purchase coverage, then even though the employer was not REQUIRED to carry coverage, that coverage will invoke all of the rights of the Workers Compensation Act and if you are hurt on such a job, you will be covered by the Act.\u00a0<\/span><\/p>\n

We particularly tell construction workers who own their own business and do construction work themselves: Please, please buy coverage for yourself and your workers if you can find a way to afford it. We have seen too many lives ruined for failure to purchase coverage.\u00a0<\/span><\/p>\n

Pre-existing conditions<\/i><\/b><\/h2>\n

If a pre-existing physical condition is the sole cause of your injuries and it\u2019s the pre-existing condition that causes the injury, then you may not be covered. For example, if an employee has severe osteoarthritis, that condition can damage and cause pain in various joints such as the hands, hips, knees, and spine. If you are working and your knee buckles \u2013 even though you didn\u2019t fall or didn\u2019t come into contact with any object \u2013 then a physician may conclude that nothing at work caused your knee pain \u2013 your knee pain is due to your arthritis and nothing else.\u00a0<\/span><\/p>\n

This situation is different than if you slip and fall because the floor is wet and then hurt your knee. A doctor might say that part of your pain in your knee is due to the osteoarthritis \u2013 but since the wet floor caused your fall, you can claim workers\u2019 compensation benefits. The good news about pre-existing conditions is that it is rare that a claim will fail because of them. This is because in Virginia, so long as th the injury caused a sudden mechanical change in your body, then if any portion of your disability comes from that injury, no matter how slight, then the entire injury and treatment for it is compensable.\u00a0<\/span><\/p>\n

Many other conditions may be caused by events at work that are personal to the worker and weren\u2019t caused by work. In these cases, the employer will contest your right to workplace benefits.<\/span><\/p>\n

Personal risk<\/i><\/b><\/h2>\n

There are some injuries that the workers\u2019 compensation board or courts may consider non-compensable because they\u2019re due to a personal risk that the employee assumes. For example, if a worker starts a fight with a co-worker, especially if it is over personal issues between them, then that worker will not be able to file a work injury claim for all the burn injuries and respiratory injuries he suffers. The victim of the assault, however, would normally have the right to file a workers\u2019 compensation claim \u2013 provided that the reason for the fight was not personal, but work-related in some way.\u00a0<\/span><\/p>\n

Deviations from work<\/i><\/b><\/h2>\n

Some employees who are working for their employer take time off to run personal errands. For example, a salesperson who is on the road may take time out to go shopping for something. If that worker is then injured (suffering bone fractures) by falling on the parking lot asphalt, the employee may not be able to claim worker\u2019s compensation benefits to treat with an orthopedist to mend the broken bones\u2013 because he\/she was injured while deviating from his\/her work assignment. The trip to the retail store was not related to his\/her work and thus would not be compensable.<\/span><\/p>\n

Recreational injuries<\/i><\/b><\/h2>\n

Recreational activities include activities that are not generally considered part of a workers\u2019 daily job requirements. These activities can include company softball games or outside picnics where workers mingle with other people. Injuries while playing a game or just serving food at a picnic do happen.\u00a0<\/span><\/p>\n

Whether the injury is considered related to work often depends on a few factors such as:<\/span><\/p>\n