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What To Do When You Lose Your Workers’ Compensation Appeal


by Veronica Baxter

This article will address your options if you are an employee who was injured or contracted a disease or condition while working, whose claim has been denied, and who has lost your workers’ compensation appeal. No matter where you live, state law provides recourse at every step of the process – don’t give up! Insurance companies often deny worthy claims with the hope that the claimant will not pursue an appeal. It’s not fair, but it happens.

If the appeal process is confusing to you, consult with an experienced workers’ compensation attorney. He or she will know exactly what to do and when to do it. Don’t worry about the expense of retaining an attorney, though – under workers’ compensation law, your attorney only gets paid if you do.

The Six Most Common Reasons a Workers’ Compensation Claim is Denied.

Insurers only make money when they don’t payout, so of course, it is in their best interests, or rather, the best interests of their shareholders, to find any reason they possibly can to deny your workers’ compensation claim. Here are the most common reasons – and most are avoidable if you know what to look for!

1. Your Workers’ Comp Claim was Denied Because You Missed Crucial Deadlines.

Workers’ compensation procedure differs state-to-state, but one thing common in all states is that there are strict deadlines for informing your employer of your injury in writing and providing your employer and the insurer with information about your injury.

If you do not comply with these deadlines, you risk your claim being denied out of hand. If this happens to you but your employer knew about the injury, even though you failed to provide notice in writing by the deadline, you may be able to prevail on appeal. Keep a log of what you told your employer, when, who else was present, and anything your employer asked for or gave you in writing, as well as all medical advice and diagnosis.

2. Your Workers’ Comp Claim was Denied Because It Is Not Clear Whether You are an Employee or Not.

If you are not a W-2 worker, the insurer is sure to deny your claim because you allegedly are not an “employee.” However, just because you don’t get a W-2 does not mean you are not an “employee” deserving workers’ comp coverage. There are many instances where workers’ compensation judges have found 1099 or cash workers “employees” for the purposes of workers’ compensation coverage.

If one or more of these conditions apply, you should appeal a denial of your claim because you may be considered an employee for the purpose of workers’ compensation law, and eligible to receive workers’ compensation benefits:

  • Your employer sets your hours and where you work;
  • Your employer controls or directs what work you do and when;
  • Your employer owns your tools or equipment;
  • Your employer has provided you with training;
  • You don’t have a separate business address from your employer;
  • You don’t file separate business tax returns from your employer;
  • You don’t hire or control any employees of your own.

3. Your Workers’ Comp Claim was Denied Because It Is Not Clear Whether the Injury or Disease was Work-Related.

You must be able to show that you incurred the injury at work or while performing your regular work duties. If there is any question at all about how or when your injury, disease, or illness occurred, your workers’ compensation claim will be denied.

The insurer may claim you are ineligible for workers’ compensation benefits because you were acting outside the scope of your regular duties when you were injured. This commonly happens if there is evidence to suggest an employee was fooling around, fighting, or committing a crime at work or during work hours.

If you were traveling off-site for work when injured, the insurer can claim you were traveling to or from work, which is not covered by workers’ compensation, or were traveling at the direction of your employer but went on a frolic apart from where you were directed to go or directed to do. For example, if your employer sends you out to pick up lunch for everyone and you stop at the dry cleaners to pick up your dry cleaning and are injured tripping over uneven sidewalk pavement, that is a frolic not covered by workers’ compensation.

The insurer can also claim that you had a pre-existing condition that was not caused by or at work, and therefore is not covered. Don’t give up if this happens to you – you are still entitled to workers’ compensation benefits if your pre-existing condition is exacerbated at work or while performing your regular work duties.

These claims are all arguable and subject to fact-finding and determination by a judge. In any of these cases, you should appeal that denial.

4. Your Workers’ Comp Claim was Denied Because Your Injury, Disease, or Condition Is Not Covered By Workers’ Comp in Your State.

Many states restrict workers’ compensation coverage of repetitive injuries and emotional distress injuries at work. Or, it may be that your injury is not severe enough to warrant coverage by workers’ compensation – or so the insurer alleges. Again, you can appeal to these initial denials.

An attorney can help you determine whether you have an argument for coverage under the lass of your particular state, and will help you gather the evidence needed to persuade a workers’ compensation judge that you are entitled to workers’ comp benefits.

5. Your Workers’ Comp Claim was Denied Because You Reported the Injury, Disease, or Condition After You Left Employment.

If you were laid off, were fired, or quit before you filed your claims for workers’ compensation benefits, the insurer will almost certainly deny your claim on that basis. However, each state has specified exceptions allowing former employees to receive workers’ comp benefits under these circumstances.

If you were fired in retaliation for reporting a workplace injury, know that that is illegal. You should appeal that denial and again, keep a log of everything you tell your employer, your employer tells you, and everything you get and give in writing from your employer and your employer’s insurance company.

6. Your Workers’ Comp Claim was Denied Because You Did Not Show Partial or Total Temporary or Permanent Disability.

An insurance company will do everything it can to avoid paying a workers’ comp claim, including forcing you to visit several different doctors hoping for a diagnosis that will allow them to argue that you can and should return to work despite your injury, disease, or condition. If they have a weak argument that you can and should return to your regular work duties, they will argue that you should return to work and be assigned ‘light duty” while you recover.

What is important, if you have not reached maximum medical improvement yet, is that you do everything your doctor and the physical therapist says to do, and nothing more. Why? To avoid giving the insurance company any ammunition against you. How can you argue that you are disabled and can’t work due to a shoulder injury if you go on a week-long cycling trip while out of work? Be honest, be smart, and don’t push yourself.

What to Do if You Lose Your Workers’ Compensation Appeal.

Your claim was denied, and you filed an appeal with the workers’ comp court where you live. The judge then also denies your claim. What’s next?

You can appeal that judge’s determination. What administrative or legal body you appeal to will depend upon which state you live in. Keep in mind that there are strict deadlines in which to file your appeal and even if you don’t have an attorney, you must adhere to those deadlines or risk losing the opportunity to be paid on your claim.

Do You Have a Workers’ Compensation Attorney to Help You?

Many times injured employees try to navigate this process alone, and they miss deadlines or just don’t know their state’s workers’ compensation law well enough to successfully make their case before a workers’ comp judge. Consult with an experienced workers’ comp attorney. This attorney will only get paid when and if you do, and will not take your case unless he or she is reasonably sure you can show that you are entitled to workers’ comp benefits.

A workers’ compensation attorney will review all of the facts of your case and be able to tell you whether you have a case at all, or in some cases if the employers’ or other employee’s behavior or work conditions were that egregious, whether you have a personal injury case.

If you have not consulted with an attorney up to this point, now is the time to do so to take advantage of every chance you have to be compensated for your work-related injury, disease, or condition. Good luck!


Veronica Baxter is a legal assistant and blogger living and working in the great city of Philadelphia. She frequently works with Craig Altman Esq., a lawyer that specializes in Workers’ Compensation New Jersey