Workers’ compensation is insurance that is designed to protect workers while they are on the job. It is required by state law for most employers to carry it. It covers costs associated with medical care, prescriptions, hospital stays, lost wages, and other costs that workers might experience if they are injured on the job. One of the most common questions about workers’ compensation is whether it matters how you were injured on the job. Most of the time, it does not matter. If you are injured at work, you should first report the injury to your manager, complete an accident report, get medical care, and talk with a competent workers’ comp attorney. Your employer and their insurance company won’t necessarily have your best interest in mind. Potential Work Hazards for Waiters and Waitresses Waiters and waitresses face special hazards in their line of work every day. Here are some hypothetical scenarios that waiters and waitresses face: Spilled beverages and food can create hazards that cause wait staff to slip and get injured. Hot food and plates can cause serious burns. Repeating the same motion, such as rolling silverware in napkins, on a constant basis can cause waiters and waitresses to develop repetitive stress injuries. Lifting heavy trays or moving food in and out of the walk-in freezer can cause back or neck injuries. If you are hurt during your waitstaff shift, you may be eligible for workers’ compensation. Are All Restaurants Required to Carry Workers’ Comp? Whether a restaurant is required to carry workers’ comp insurance is up to each state. This is determined by the size of the business. Many restaurants do elect to carry it even if they may not be required because it also protects them from costly legal problems. The easiest way to find out if the restaurant that you work for has workers’ comp is to ask the person that hired you or, if you work for a chain, contact your Human Resources representative. What to Do If You Are Injured at Work If you become injured at work or if you are diagnosed with an illness that was caused by your work conditions, you may be eligible to receive workers’ comp. Report your accident to your manager. You must make sure that an accident report is filled out even if you don’t feel like your injuries are severe enough to require medical care. Also, make sure that you contact Human Resources to let them know that you were injured during your shift. You should see a doctor as soon as possible. Many employers have workers’ comp policies that state which doctor you should see. You can get a second opinion, and you can also go to the emergency room if it is an emergency. Using the doctor listed in the workers’ comp policy means that you won’t have to pay anything out of pocket for your visit. Evidence Needed For a Claim as a Waitstaff If you have been involved in an accident as a waiter or waitress in a restaurant or bar, you will want to know whether your employer has workers’ compensation insurance which you could use to claim the cost of medical treatment and some, if not all, of any lost wages. The evidence you might need for a claim depends on whether it is a workers’ comp. claim or not. Workers’ compensation is not dependent on proving that your employer was at fault. You may be careless, but still be entitled to claim workers’ compensation. If your employer has no workers’ comp. (it depends on the state you work in – some states are stricter than others) you may be forced to pursue a personal injury claim against your employer if you think that the accident was due to the conditions at work. Assuming that you are pursuing a workers’ comp. claim, the most important evidence is to show that the injury you are claiming for actually happened at work, i.e. while in the restaurant kitchen, collecting meals or drinks, or in the restaurant. If your job involves clearing away tables and cleaning the restaurant, your accident could happen then as well. Insurers commonly deny WC claims because they are not convinced that the injury was work related. There are several possible sources of evidence that could help the legitimacy of your claim: Statements from any other employees in the restaurant /bar. If the accident happened in the kitchen, this is the best option as it is unlikely that you would be the only worker – there would be kitchen staff who could have seen the accident. Statements from patrons who saw you slip over or have some other kind of accident. You would need their permission to make a statement later and collect contact details such as telephone number and/ or email address. Video recording made by security cameras, if there were any. This is a less likely option in a restaurant as the presence of cameras may seem to be overly intrusive, but in a bar setting, there may be cameras installed if there has been a history of unruly behavior. Your own photos taken at the time of the accident. If you have twisted your ankle or badly cut yourself, you could ask someone else to take photos of your injuries then and there. Most cell phones have some sort of camera facility on them and are suitable for taking these sorts of shots. You must let your immediate restaurant manager or supervisor know about the injury as soon as you can. This record of an accident should be officially recorded and will be an important source of evidence when the claim is filed. Calculating Workers’ Comp Settlement for a Waiter / Waitress All workers’ comp. settlements are made up of two components. You are paid an amount for any hours or days that you could not work. You are also paid for all medical treatment related to the specific workplace injury. There may be other benefits, depending on how permanent the injury was. If you earn, say, $8 an hour, then you should be entitled to a portion of whatever hours you miss because of your injury. This varies from state to state, but is typically around two thirds, so in your case, $5.25 an hour. More difficult is if some or most of your earnings are in the form of tips. This is often the case for waitstaff. Insurers will probably try and exclude tips from a WC claim, especially if you don’t pay tax on them. However, there have been cases where a decision by an appeals court has reversed a previous decision favoring insurers over tip income where it can be proved that you have declared tips to your restaurant or bar manager at the end of your shift. Compensation for medical treatment depends on the nature and severity of the injury. It could be anything from a few hundred dollars for minor scrapes, cuts and bruises after a fall to thousands of dollars if there was a more serious injury, such as a broken arm, dislocated shoulder or severe burn. As every case is unique, the most important part of a claim is to be careful in obtaining documentation for everything that has involved a cost. Most states allow benefits for temporary full or partial disability as well as permanent disability. You may need an attorney to explain the differences between these benefits as they relate to your job so that you file a claim for what you are entitled to. Real Life Example In 1999, Nancy Martino worked as a waitress for Cracker Barrel. As she was carrying dishes through the kitchen, her foot was caught by broken flooring. She fell and injured her back and spine. Thanks to the assistance of a competent workers’ comp attorney, Ms. Martino, now wheelchair bound, was awarded $900,000.00 and receives yearly compensation of $37,000. Consult with a Workers' Compensation Lawyer If you were hurt while you were working your shift as a waiter or waitress, you should schedule a consultation with a workers’ compensation attorney for the best chance at winning your claim. A workers’ comp attorney can take care of the claims process and will work to ensure your rights are protected. Additional Resources I’m an Injured Waiter. What Should be My WC Claim be Worth? Workers’ Compensation Claims in the Sit-Down Restaurant Industry Hurt Working At Jeremiah’s Italian Ice*
