Part 10 - State Compensation

Workers' Compensation vs. Jones Act

Don’t make the mistake of thinking Workers Compensation and Jones Act claims are the same.  While they may appear similar in some respects, Jones Act settlements are generally greater than Workers Compensation and often life-changing.  You must be careful about making claims under Workers Compensation laws.  If you file for Workers Compensation or other benefits, it’s possible to lose your right to ever pursue a Jones Act claim

Although state laws vary, traditional Workers Compensation laws are only designed to provide medical care, disability payments and income benefits to a worker hurt on the job.  Benefits are usually paid through the employers Workers Compensation insurance policy.  Workers Compensation is designed to keep you financially afloat until you’re healthy enough to go back to work after an injury.  Workers Compensation settlements, if any, usually provide for relatively small amounts and cover little more than lost wages.  Workers Compensation death benefits usually provide small weekly payments to the surviving spouse for the remainder of his or her life, or until they remarry.

The Jones Act provides large settlements, compared to Workers Compensation, and it is generally not difficult to prove slight negligence or the unseaworthiness of a vessel.  Slight negligence has been defined by the courts to mean "featherweight".  Some would say that “slight negligence” means no negligence or no-fault.  Jones Act settlements should cover your medical expenses, lost wages, pain and suffering, loss of household services and even your loss of enjoyment of life along with many other legal damages which result in a large final settlement.

Workers compensation varies from state to state and is governed by a state agency.  The agency is responsible for creating and enforcing workers compensation rules and regulations.  When an injured worker encounters a problem in his workers compensation claim, he can turn to the state agency for assistance.  Most state agencies have an office of ombudsmen who will assist workers who lack legal representation. 

Most workers compensation systems require doctors to seek advance approval from the state agency before they can receive payment for treating injured workers.  As a result, an injured worker may have difficulty locating a treating doctor or required specialists who are on the “approved doctor list” for their state.  To complicate matters further, many states are creating doctors’ networks.  In those instances, the insurance carriers who will create the networks of which doctors you can or cannot see.  If an injured worker chooses a doctor outside the network, the doctor will not be paid and the worker will find himself facing mounting medical bills and possibly unable to obtain necessary treatment.  

The rules of state agencies control what problems can be resolved with administrative hearings.  As a result, certain issues fall between the cracks and are outside the control of the injured worker. One example is the need for home health care for seriously injured workers.  If the insurance company does not approve the home health care, the worker may not be able to request a hearing on that matter.  Often injured workers are only able to request hearings or agency intervention on matters directly tied to their income benefits.  Issues related to medical needs may require a health care provider to dispute the denial.  This leaves the injured worker at the mercy of his or her doctors and the insurance company. 

Jones Act claims function entirely independent of the state or federal workers compensation schemes and governing agencies.  Often a injured worker who is covered by the Jones Act will find his doctors and insurance company trying to convince him that he is bound by the requirements of workers compensation, especially in choosing a doctor.  The Jones Act does not place restrictions on the choice of medical provider.  This proves to be an advantage for the injured worker, however, the disadvantage to the injured worker without legal representation is that there is no governing agency to go to when problems arise in a Jones Act claim.  No state or federal agency oversees the administration of Jones Act claims. 

When an injured worker covered under the Jones Act encounters a problem with his claim, he cannot simply request an administrative hearing; his only option for enforcing his rights under the law is to take his claim to court in the form of a lawsuit.  For this reason, injured workers who believe their claim falls under the Jones Act should seek the advice of an experienced maritime attorney early in the process.  Many injured maritime workers find themselves unable to obtain the treatment they need and unable to achieve any level of cooperation from their company or the insurance company regarding payment of maintenance benefits.  It is not uncommon for the insurance company to try to starve out an injured worker.  Insurance companies know that regardless of the severity of an injury, most injured workers will ask to be released to return to work before they will let their family go without food and shelter.  Instances like these require the intervention of judges who can order an employer or insurance company to provide the benefits that the injured worker is entitled to receive. 

It is important for injured maritime workers to understand that navigating the court system is difficult for inexperienced attorneys but nearly impossible for individuals without legal training.  With Jones Act claims, an injured worker does not have the opportunity to request assistance of an ombudsman program or court appointed counsel.  Therefore, the most important decision an injured maritime worker will make is the decision whether or not to retain legal representation and who they choose to handle the task.