Workers Compensation in the USA – Workplace Injury, Your Rights (Including Undocumented)

What is Workers Compensation

Workers compensation (workers' comp, abbreviated as "comp") is mandatory in almost all states (except Texas, where there is an opt-out) insurance for employers covering employees injured at work.

Historical "exchange": the employee loses the right to sue the employer for negligence in a workplace accident. In return, they receive guaranteed benefits without having to prove fault.

What does workers comp cover

1. Medical benefits

• 100% of medical costs related to the accident
• Doctor visits, hospital, ER
• Surgery, rehab, physical therapy
• Medications, medical equipment
• Medical transport
• No deductible, no co-pay
• Lasts as long as treatment is medically necessary

2. Temporary Total Disability (TTD)

When you cannot work due to injury:

• Usually 60-67% of average weekly wages (each state has its own minimums and maximums)
• NJ: 70% with a cap of ~1,099 USD/week (2024)
• NY: 67% with a cap of ~1,145 USD/week
• CA: 66.67% with a cap of ~1,539 USD/week
• Paid weekly or bi-weekly
• Tax-free (federal and state)
• Lasts until the doctor says you can return to work

3. Temporary Partial Disability (TPD)

If you return to work in a limited capacity (lighter duty, fewer hours):

• Payment of the difference between pre-injury wages and post-injury wages
• Usually 60-67% of the difference

4. Permanent Partial Disability (PPD)

Permanent partial disability (e.g., loss of a finger, significant shoulder damage):

• Lump sum or structured payment
• The amount depends on the type and severity of the injury
• Each state has a "schedule" – e.g., loss of a finger = X weeks of payments

5. Permanent Total Disability (PTD)

Never returning to work:

• Indefinite payments (or until a certain age)
• Plus medical for life

6. Vocational rehabilitation

If you cannot return to your previous role – training/education for a new one:

• Vocational schools
• Language lessons (if language is a barrier for new work)
• College tuition in some cases

7. Death benefits

If an employee dies in an accident:

• Payments to the widow/widower + minor children
• Coverage for funeral expenses (5-10k USD)
• Duration depends on the state – usually until remarriage or children reach adulthood

Immigration Status – Key Information

Most states pay workers comp regardless of immigration status.

States paying undocumented workers

• NY – full benefits for undocumented
• NJ – full benefits
• CA – full benefits (except for vocational rehab placement in US jobs)
• IL – full benefits
• FL – full benefits
• MA – full benefits
• CT – full
• TX – full (where opt-in, mostly)
• VA – full
• Most states

States limiting undocumented

• Wyoming – sometimes limited
• A few others have minor restrictions, but ER and basic medical are usually covered

What employers may try

Some employers try to avoid paying workers comp for undocumented workers through various tactics:

• "I will call ICE if you file a claim" – THIS IS A CRIME (retaliation, federal law)
• "Your fake papers are not valid" – it doesn't matter, you have the right to workers comp
• "You weren't actually an employee" – the workers comp commission decides, not the employer
• "Take this cash settlement and don't go to court" – often illegally low, consult an attorney

An employer threatening retaliation can be sued under federal/state law. The employee may also receive additional damages.

What to do if you get injured

Step 1: Immediate medical care

• If emergency – 911, ER. Don't wait. EMTALA guarantees care.
• Tell the doctor it was a workplace accident
• Do not sign or pay any bills – workers comp will cover

Step 2: Notify your employer

• AS SOON AS POSSIBLE – but not at the expense of treatment
• Usually 30 days in most states, but the sooner the better
• In writing if you can (text, email) – backup
• Some states: oral OK, but better in writing

Language: "I had an injury at work on [date]. I need workers compensation."

Step 3: File a formal claim

Your employer should give you a workers comp claim form. If not:

• Contact the State Workers Compensation Board / Commission
• Fill out the state form (e.g., NY: C-3, NJ: WC-1)
• Send it to your employer and the workers comp insurance company

Step 4: Hire a workers comp attorney

Most workers comp attorneys work on contingency – they take 15-20% of the settlement, nothing upfront. No financial risk for you.

When an attorney is mandatory:

• The employer refuses to acknowledge the claim
• The insurance company denies benefits
• Surgery is required
• Permanent disability is expected
• The employer threatens retaliation

What accidents qualify

Classic accidents

• Fall from a ladder (carpenter, painter)
• Cut with a knife (kitchen)
• Back injury (lifting heavy)
• Cumulative trauma (carpal tunnel from cash register)
• Slip-and-fall on a slippery floor
• Car accident at work (delivery, sales)
• Repetitive motion injury

Less obvious – but often qualifying

• Heart attack at work – sometimes (if related to work stress)
• Occupational diseases – asbestosis, silicosis (construction), pneumoconiosis
• Mental injury – PTSD from work trauma, acute stress (firefighter, police officer)
• Assault on an employee – bank teller robbed, store employee attacked
• Hearing loss – noisy industry
• Skin disease – contact with chemicals

What does NOT qualify

• Accident after hours (unless at a company event)
• Commuting to/from work (with exceptions: company car, special errand)
• Self-inflicted injuries (suicide, intentional)
• Intoxication above the threshold (DUI)
• Fight with another employee (usually, with exceptions)
• Violation of safety rules (sometimes)

Choice of doctor – state controversies

States differ on who chooses the doctor:

Employee choice (employee decides)

• NY, NJ, MA, NH, ME, RI, WV, KY, IL and a few others
• You can go to your doctor or one of your choice

Employer choice (employer decides)

• FL, GA, NC, AL, TN, MS, VA, AR
• You go to a doctor designated by the employer for the first period
• After some time, you can change

Mixed system

• CA – employer designates the first 30 days, then you
• TX – varies, depends on opt-in

Important: an employer-chosen doctor may have an interest in minimizing injury (client = employer). An "independent" doctor is in your interest.

Settlement vs ongoing benefits

Often, a workers comp claim ends in a settlement – a lump sum payment instead of ongoing weekly checks.

Types of settlements

• Section 32 settlement (NY) – full lump sum in exchange for closing the case
• Compromise & Release (most states) – similar
• Stipulated award – parties agree on the amount

Pros/cons of settlements

Pros: lump sum, closure of the case, no further fighting

Cons: you lose lifetime medical (if surgery is needed in 10 years – you pay), you lose future benefits if the condition worsens

Negotiate aggressively – initial offers are usually 30-50% of the actual value. An attorney will help maximize.

Employer without workers comp

In most states, workers comp is mandatory, but some employers operate illegally without it:

• The employer is personally liable for full costs
• The employee can sue them in civil court (full damages possible)
• The State Uninsured Employers Fund (NY, CA, FL, and others) may pay out
• The employer receives a stop-work order, fines

Even if the employer tells you "I don't have workers comp, so don't report" – YOU HAVE RIGHTS. Go to an attorney.

1099 contractors and workers comp

Generally, 1099 contractors are NOT covered by the employer's (client's) workers comp.

But if misclassified as 1099 when you are actually an employee – you have the right to workers comp. The Workers Comp Board decides status.

Some contracts may require that the contractor has their own workers comp coverage:

• Some states (NY, NJ, FL) require sole proprietors in high-risk industries (construction) to have their own comp
• You can purchase your own policy – 200-1,500 USD/year depending on the industry

Gig workers (Uber, Lyft, DoorDash)

Generally not covered by workers comp. Platforms offer occupational accident insurance:

• Medical up to 1 million USD
• Lost income 2/3 of earnings for 26-52 weeks
• Death/dismemberment benefits
• Limitations: only during active trip, lacks long-term coverage

Less generous than true workers comp, but better than nothing.

Polish cases – common situations

Carpenter with a Polish contractor on a construction site

The carpenter works for cash, is unsure if there is comp. Falls from a ladder, breaks a leg. The employer does not have comp.

What to do: ER immediately. Say it was a workplace accident. The State Uninsured Employers Fund may pay out. Attorney on contingency.

House cleaner – slippery stairs

Works for an agency as a "1099 contractor", but the agency controls everything. Falls down the stairs at a client's house. The agency says "you are not an employee".

What to do: ER. File a misclassification claim – the agency often misclassifies. The workers comp board may recognize you as an employee.

Cook in a Polish restaurant

Works for cash, suffers a second-degree burn on the hand from oil. The employer: "don't report to anyone, I'll give you 500 USD".

What to do: ER, even if it's "just" a second-degree burn. Consult an attorney before accepting the "settlement". 500 USD does not even cover ER.

Live-in caregiver for an elderly person

Domestic worker, the employer is a family. Twists an ankle helping the patient to the bathroom.

What to do: In some states (NY, MA, CA), domestic workers ARE covered by workers comp. File a claim.

Retaliation – employee protection

An employer firing an employee for filing a workers comp claim – this is illegal. Possible damages:

• Reinstatement
• Back pay (lost wages for days)
• Punitive damages
• Attorney fees

Consult an employment lawyer (on contingency).

Practical tips

• Report ALL injuries – even seemingly minor ones. Some escalate (back injury may manifest weeks later).
• DO NOT sign anything or "release" from the employer without an attorney
• Keep copies of all bills, prescriptions, medical reports
• Witness names + numbers if someone saw the accident
• Photos – of the accident, injury, location
• Workers comp attorney on contingency – no risk
• Regardless of status – you have rights
• The employer will not call ICE if you report workers comp – that is a crime
• State comp board info line – free help navigating
• Polish worker organizations in NYC, Chicago – often provide assistance