Myths, misconceptions, and facts about Maine workers' compensation rights

I have been practicing workers' comp law on behalf of injured employees for a few years now, and it often surprises and distresses me when I realize how little the average employee knows about his or her rights under the law. I don't mean people don't know all of the details, like how much they'll get paid if they're totally out of work or whether they can choose their own doctor. They often don't know such details, but that isn't worrisome -- after all, most people don't work for insurance companies or law firms.

Rather, what bothers me is when someone has a major misconception about workers' comp that affects how they assert their claims or, sometimes, whether they exercise their legal rights at all. Sometimes, when I take a call from someone with a work injury or meet an injured person for the first time, they talk about "dealing with workers' comp" or a "decision" made by "workers' comp" -- and when I press for more information I find out the injured employee is talking about the insurance company and not the Workers' Compensation Board. There is a huge difference, and many individuals are at the mercy of their employers when it comes to knowing that. That is a problem in itself, and I think it also represents the general misinformation many people have about workers' compensation.

So, without further prologue, I present a few corrections for the record.

Myth: an employee may be denied compensation because he or she made a mistake that caused an accidental injury.

Fact: it does not matter who was "at fault" for a work-related injury, except in extremely rare instances where workers intentionally injure or kill themselves. Employers often get caught up in debates over this issue, too, but it almost never matters.

Myth: an employee who had a work-related injury can't be fired.

Myth: an employer can fire an injured worker who is costing the insurance company too much money.

Fact: your employer is not allowed to discriminate against you simply because you had a work-related injury. It can get complicated, but this is the general rule. If you are not able to return to your old job because the injury has disabled you, your employer is not obligated to keep your job open forever. At the same time, though, an employer isn't allowed to punish someone because he or she asserted a workers' comp right. Also, if, after an accident, the management decides you aren't able to perform your job safely, you may be moved to another position or, in rare circumstances, terminated. This action legally can't be motivated by retaliation for possibly costing your employer money, but it can be motivated by the need to maintain a safe workplace.

Myth: if you get hurt at work, your boss is allowed to decide whether to report your injury.

Fact: your employer must report any significant work-related injury that you have to the insurance company. If you get hurt at work and need medical attention or time off work, your boss doesn't have the legal capacity to decide it's not a true work injury. Also, it's against the law to "lay you off" and tell you to collect unemployment compensation until you're able to do your job again.

Myth: if I get a 1099 for my taxes and the company doesn't put me on the payroll, I'm an independent contractor and have to buy my own workers' comp insurance.

Fact: although there are plenty of actual independent contractors in Maine, many companies abuse or misunderstand the concept. It doesn't matter whether you do or don't get a specific tax form. Instead, there is a complex test to determine independent contractor status, and civil penalties are possible when a company disregards its workers' comp obligations. Sometimes, employers are caught without workers' comp coverage when an employee suffers a severe injury; I have known two employees who suffered severe, permanent injuries and then found out their respective employers had no policy to cover them and insufficient assets to pay out of pocket.

Myth: petitioning for workers' comp benefits means you're suing your employer.

Fact: workers' comp is an administrative remedy for workplace injuries, implemented without the courts, except in relatively rare instances when the state supreme court reviews a case for legal error. The parties don't get jury trials.

Myth: if an employee is collecting compensation for an injury, he or she is probably exaggerating or fabricating his or her disability.

Fact: although instances of employees' fraud and abuse of the workers' compensation system are revealed from time to time, there is no evidence to support the idea that large numbers of workers are scamming the system. However, every year some employers, usually in bigger states, are caught ripping off insurance companies by failing to report their true payroll figures. Other times, employers take advantage of their workers and insurance companies by falsely classifying workers as independent contractors. Also, some doctors and other service providers have been caught defrauding insurance companies, billing for services or products that weren't provided. These schemes often run into six or seven figures, dwarfing the amount of money that an employee with a phony disability is able to get.

Myth: the insurance company can force a worker to settle a case.

Fact: settlement happens only if the employee and insurance company agree to terms, preferably with the consent of the employer, and an administrative law judge approves of the settlement.