Workers Comp: Enforcing Your Rights by Phil Cohen

Workers Comp: Enforcing Your Rights by Phil Cohen

Workers Comp: Enforcing Your Rights by Phil Cohen

Phil Cohen is the labor movement’s most successful organizer at defeating professional union busters. His work in Highland Yarn Mills established NLRB precedent, defining illegal union busting.

He’s represented 1,000’s of workers not only in grievance & arbitration, but in every area of employment law. In this workshop, Phil explains your rights under workers comp, how companies routinely violate them, and how workers can fight back and win.

This legendary organizer’s latest book Fighting Union Busters in a Carolina Carpet Mill is an action-packed memoir about how he and a determined union local brought a Fortune 500 company to its knees.

Phil Cohen's Workers Comp: Enforcing Your Rights can be listened to right here:

(or scroll down to read transcript)

My name is Phil Cohen. I’m Special Projects Coordinator for Workers United/SEIU with 30 years in the field.

A union’s job doesn’t stop with negotiating and enforcing contracts. We also educate workers about their rights under state and federal law, and represent them when those rights are violated.

Every company I’ve dealt with is crooked when it comes to workers comp, and deliberately confuses employees about their rights.

Workers comp is a mandatory insurance policy for all employers….. providing extensive benefits to injured workers. It’s regulated by individual states rather than the federal government, meaning the exact wording of the law varies by state. But the key principles are pretty much the same.

If you get injured at work – anything worse than a paper cut – inform your HR Department and request a workers comp claim form. Here’s why:

  • What might seem like a minor injury could get worse over time. The longer you wait to file a claim, the more difficult it gets to investigate.
  • Workers comp will pay all medical bills resulting from an on-the-job injury.
  • If you have to miss work, workers comp will pay 2/3 of your average weekly salary.
  • As grisly as it sounds, every body part has been assigned a monetary value – from an eye to a finger joint. If you suffer a permanent injury, workers comp will also have to compensate you for the loss.
  • Once it seems you’ve recovered and are back at work, if the injury flares up years later, workers comp is still responsible for medical bills and lost wages. This remains in effect even if you choose to change employers.
  • In the case of serious injuries that will prevent you from returning to your old job, a good workers comp lawyer can negotiate a settlement to buy out your job, often for tens of thousands of dollars.
  • Workers comp is a no-fault policy. You don’t have to prove an injury was due to company negligence or defective equipment. You only have to prove it happened at work.

You may be wondering at this point why a big corporation and its insurance company would negotiate a settlement with your lawyer. That’s because if an agreement can’t be reached, there’s a hearing before your state’s Industrial Commission. Their decision is subject to appeal all the way up to the state supreme court.

The cost of lengthy litigation is often what motivates insurance lawyers to cave in and offer a generous settlement. It simply becomes less expensive to buy you off than continue to fight.

Under the law, unions can’t directly represent employees in a workers comp case. But unions can and do:

  • Refer members to top workers comp lawyers whose practice mainly involves representing union workers. Unions are not legally required to provide this service to nonmembers and we don’t.
  • A union rep can assist your attorney with boots-on-the ground investigation.
  • A union rep can discuss your case with management in an effort to speed up your benefits.
  • Worker’s comp lawyers don’t get paid unless you win, and then usually take 30%. Don’t get greedy and try to go it alone. The only thing workers who represent themselves come away with is their injury…… and no settlement.

Management’s Dirty Tricks

Now that I’ve explained your rights, we need to discuss all the ways management will try to get around them:

  • Suffice it to say, neither the insurance company nor management will want to uphold your claim. The insurance won’t want to pay, and the company’s insurance premiums rise with each successful claim.
  • Management will often try to act like your best friend. They’ll pay your medical bills and offer you light duty, to sit around doing nothing and get paid. It’s not about compassion. They’re trying to avoid involving their insurance company and a premium increase.
  • If you’re naïve enough to trust management, you’ll lose all the rights and benefits we just listed.
  • Another approach used by companies is to either deny you’re injured, or claim it didn’t happen at work.
  • Therefore – from day one, you need a workers comp lawyer to handle your case. If you’re not fortunate enough to have a union, get a referral from a friend or use Google and trust your gut. (Unfortunately, there’s no substitute for a great union lawyer.)
  • You cannot be legally penalized in any way for filing a worker’s comp claim.

Types of Injuries

Let’s take a look at various types of injuries. Many industrial injuries are the obvious result of a serious accident, witnessed by co-workers. There’s no grounds to dispute these are job related. But some of the most serious injuries come on slowly. Management and their insurance company often argue these problems were not caused by work:

  • Repetitive Motion Injuries – otherwise known as ergonomics. Repeating the same movement over and over through the years can often create serious injuries to body parts bearing most of the strain, including backs, shoulders, wrists, and knees.
    • As soon as you begin to experience ongoing pain associated with your job duties, file a workers comp claim. See your own doctor to back you up in writing. Get a lawyer.
    • People tend to wait and hope the pain will improve while they continue to stress the affected joints for 8 hours a day. It won’t get better. It will definitely get worse.
    • Filing an early claim often means you only need some time off work or on light duty, and then wear a brace to strengthen the weakened area.
      Waiting until you’re in too much agony to work usually results in surgery and sometimes never being whole again.
    • I can’t emphasize this enough. I’ve seen too many young, strong men and women crippled for life because they didn’t take this advice.
    • Remember – once you file a claim and get a lawyer, you’re legally protected from retaliation.
  • Exposure to Toxic Chemicals: Unfortunately, the OSHA statutes don’t cover the majority of poisons industrial workers are routinely exposed to. People have different tolerances to toxins. But over time, some people become sensitized to certain chemicals. Even the slightest exposure brings on symptoms like difficulty breathing, headaches, nose bleeds, etc.
    • Once again, as soon as you suspect you’re having an ongoing reaction to workplace chemicals, file a claim, see your doctor, and get a lawyer.
    • Workers sometimes spend decades breathing and handling toxic substances without noticeable effects, and suddenly develop cancer or breathing illnesses.
    • Don’t assume it’s because you’re getting old. File a claim and get a lawyer. Let him hash it out with the insurance lawyers. You’ll have nothing to lose and possibly a lot to win.

How the Game is Played

Understanding the law is important, but knowing how to play the game to make it work for you is what truly makes a difference.

Within our system of justice, everything you say can and will be held against you. Presenting things the right way is the road to victory. If you’re in a union, try to have a union rep present when you file a workers comp claim and get interviewed by management. There are some basic things to be mindful of:

  • Management will try to establish that your injury occurred away from work.
  • There’s only one answer if asked about activities in your personal life that may have contributed to the injury: NO!
  • It’s helpful if you can identify the moment when things suddenly got worse.
    • If you do a lot of heavy lifting - a particular lift when you felt a sharp pain in your back. If you’re exposed to chemicals - the moment when breathing suddenly became more difficult.
    • However, if you use this approach, report the incident immediately. You don’t want to get disciplined for failure to report an accident.
    • Many people win their claim resulting from ergonomics or toxins without having identified a specific moment, but doing so can improve and speed up your case.
  • After filing a claim, management and their insurance company get to choose the doctors you see. Company doctors are often second-rate hacks who couldn’t make it treating the general public. They know which side of their bread is buttered and might look for excuses to downplay your injury. But under workers comp, you have the legal right to a second opinion paid for by the insurance carrier.
    • A good comp lawyer has relationships with doctors who are pro-worker.
    • A dispute between doctor evaluations is often what ends up before the Industrial Commission.
    • Trust me on this: You’ll have a much easier time before commissioners appointed by Democrats, rather than Republicans.

That was an in introduction to your rights if you get injured at work. I wish you strength and power enforcing these rights.

In addition to being a union organizer, I write books about my exploits in the field. My latest book, Fighting Union Busters in a Carolina Carpet Mill, was released by McFarland & Company. It’s about a campaign I recently directed, investigating and exposing an illegal union busting plot by a Fortune 500 company. During the process, I became involved in gut-wrenching workers comp cases, and the story explains how the tactics we discussed today played out in the real world.

The best place to get it is my website,

I’m passing on my 40% author’s discount to working people, making it available for only $11.99, and including a free CD of working class music.

I’d like to thank Mark Gevaart, host of My Labor Radio, for his recording and production services. You can listen to his outstanding podcasts by following the links at