Can I receive Workers’ Compensation for a Gradual Onset Injury?
Certain jobs require you to do the same thing over and over again or require for you to sit in uncomfortable positions for a long period of time. If after a career of driving a truck or lifting heavy objects leaves you with a gradual onset injury you may not know if this is the sort of injury that you may be able to recover Workers’ Compensation for.
Fortunately, the Arkansas Worker’s Compensation Commission (AWCC) was established to enforce the Workers’ Compensation laws in Arkansas and to ensure that all covered employers secure insurance coverage from commercial carriers or through self-insurance programs. Additionally, the AWCC regulates Workers’ Compensation awards to ensure that benefit providers make correct and timely payments to eligible claimants. While employers have the right to challenge a claim filed by a worker, some may abuse this authority and discretion. If you encounter resistance from your employer or the AWCC questions your claim, an experienced lawyer can fight for the benefits you are entitled to receive. To schedule a free and confidential consultation with a Fayetteville AR workers’ comp lawyer who has worked with many different types of workers and understands many of their common concerns call Ken Kieklak at Gunn, Mason, Kieklak, & Dennis LLP by dialing (479) 316-0438 or contact us online.
Is a Gradual Onset Injury Considered an Accidental Injury?
To begin, Workers’ Compensation covers accidental injuries which arise out of, and in the course of employment. These injuries cause internal or external harm to the body and are caused by a specific incident. Additionally, there needs to be a specific time and place that caused the injury. There are generally three exceptions to the specific incident, and time and place requirement:
(1) rapid repetitive motion injuries, including carpal tunnel;
(2) gradual on-set back injuries; and
(3) hearing loss.
These three injuries entitle workers to compensation only in the cases where these conditions are the “major cause” of the need for treatment and/or disability or death. A major cause is defined as more than 50% of the cause. However, in the case of Estrada v. Aert, Inc., the Workers’ Compensation statute defining compensable injuries that are accidental does not apply to gradual-onset injuries. In Estrada, the injured Claimant’s gradual-onset back injury, was not an accidental injury under the statute of limitations because the back injury was not caused by an accident or by a specific incident that occurred at an identifiable time and place, but instead began as mild back pain that worsened little by little and was controlled by non-prescription medication. Even though Claimant reported the back pain to a physician more than two years prior to filing a claim for compensation, the statute of limitations does not begin to run unless a compensable injury has first been found.
While gradual onset injuries may entitle you to compensation the case mentioned above highlights that is very important to consider the statute of limitations before filing a case.
What is the Statute of Limitations for a Gradual Onset Injury?
In Arkansas, an injured worker can file a claim within two years of the injury or within one year of whenever benefits were last provided. While this might sound like an easy standard to meet, it can be incredibly difficult for those who have developed a gradual onset injury. Many times there is not an exact moment that a person identifies as the source of their gradual onset injury. Many times it is a minor pain that starts in the back and gradually over time develops into a debilitating condition. The statute of limitations governing gradual onset injury claims is codified at A.C.A. §11-9-702(a)(1). This statute provides that a claim is barred unless it is filed with the Commission within two years from the date of the compensable injury. However, the statute of limitations does not begin to run until the true extent of the injury manifests and causes the worker to suffer an incapacity to earn wages sufficient to give rise to a claim for disability benefits. Therefore, for a gradual onset injury, the statute of limitations does not begin running until the claimant has suffered an apparent injury and they have also suffered a loss in wage-earning capacity as a result of the injury.
Types of Workers’ Compensation Benefits are Available
Most often those who are considering if they should file a Workers’ Compensation claim are concerned with what types of benefits they will be entitled to receive, or they may be unaware of what benefits are available to them. The law generally provides three kinds of Workers’ Compensation benefits in Arkansas:
- Medical care to treat the injury – Workers’ compensation for medical care is a broad form of payment and includes not only doctor bills, but also includes coverage for medication, hospital costs, x-rays, and costs for lab tests. The coverage extends to costs for all reasonably necessary services and is paid directly to the provider by the employer’s insurance company or the self-insured employer. Generally, the employee does not have to pay a deductible.
- Rehabilitation services – This may be continuation of medical treatment and care. Generally, rehabilitation services include such things as physical therapy and training sessions. If your injury results in permanent disability, you may qualify for additional services such as vocational rehabilitation.
- Cash payments – Cash payments are by far the most common benefit that injured workers receive. These payments are often made during the healing process while the employee is unable to work. However, if the injury results in a permanent impairment, such as the amputation of a leg, an injured worker may be paid permanent partial disability benefits after being released to return to work. An injured worker may also be entitled to wage loss if their impairment affects their pre-injury wages. If the injury resulted in death, payments may be made to surviving dependents.
While cash benefits may be the most common form of Workers’ Compensation benefit, they come in different forms depending on the type of the injury and the extent the injury has on the worker. If you are thinking of filing a workers compensation claim there are some important things for you to understand about the types of wage benefits you may be entitled to receive.
Contact a Fayetteville Worker’s Compensation Attorney for Help Today
For more than 20 years Ken Kieklak of Gunn, Mason, Kieklak, & Dennis LLP has fought for injured, hard-working people. To schedule a free and confidential consultation with a Fayetteville workers comp lawyer, call us at (479) 316-0438 today or contact us online.
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