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Workplace Safety and Workers' Compensation

Legal Disclaimer: The following is basic legal information, provided as a public service by Wyoming’s lawyers. The information provided is not a substitute for speaking to an attorney. Only an attorney can give you legal advice regarding your specific situation. There are attorneys who specialize in Workers' Compensation and/or Employment Law. Click here for help finding a lawyer.

Legal Background:

Avoiding Workplace Injury:

When an Injury Occurs:

What does it mean to be an at-will employee?

Unless a contract exists, all employment in Wyoming is “at-will.” This means that either party may terminate the employment relationship at any time, for any reason, or for no reason at all. The at-will employment doctrine has several exceptions. For example, your employer cannot fire you for discriminatory reasons, because you filed for Workers’ Compensation, or because you complained about unsafe working conditions. Although you cannot be fired because you filed for Workers’ Compensation, you can generally be fired because your workplace injury is preventing you from physically performing your job!

You CAN be fired because…

You CANNOT be fired because…

You were late to work

You filed for Workers’ Compensation

You cannot physically perform your job

You filed a complaint with OSHA

You stayed home because you were sick

You testified in an OSHA proceeding

You violated a company policy

You are disabled (and can still perform your job with a reasonable accommodation)

OR FOR NO REASON AT ALL!

OR because of your race, color, religion, sex, or national origin

What is the difference between a “claim” and a “complaint”?

Some workplace rights must be enforced privately, while others can be enforced by filing a complaint with an administrative agency. To enforce a private claim you must hire a lawyer and pursue any potential claims you may have in court. Filing a complaint with an administrative agency, on the other hand may be as simple as a telephone call to the appropriate agency.

Avoiding Workplace Injury:

As a Wyoming worker, you have the right to work in a reasonably safe environment. Imagine that you are hired to work on a road construction project and on your first day, you are told to do something that you believe is unsafe. You are faced with a dilemma: you don’t want to get hurt but you can’t afford to lose your job. What do you do?

How do I report a dangerous condition in a non-mining workplace?

One option is to file a file a complaint with Wyoming OSHA. Complaints can be made online or by phone. Formal complaints can be made by a current employee and will automatically trigger an investigation. Informal complaints can be made by anyone who is concerned about workplace safety and may trigger an investigation.

What are my rights if I refuse to work?

The Wyoming Occupational Health & Safety Act (OSHA) may permit you to refuse to work, in a narrow set of circumstances. OSHA will only protect you when you walk off the job when these three conditions are met:

  1. A reasonable person would believe that the conditions were such that he/she would be facing death or a serious injury if he/she continued to work.
  2. You have tried to get your employer to correct the condition and there is no other way to do the job safely.
  3. The situation is urgent! There is no time to eliminate the hazard through regulatory channels or by calling OSHA.

Imagine that you go to work in an oil field after a big snowstorm. The ground is slippery and you are worried about falling and twisting your ankle while walking in the snow. Can you refuse to work? Most likely OSHA will not protect you if you walk off the job in these circumstances because a reasonable person would not believe that you were facing death or a serious injury. However, if you still feel that you are being asked to work in a dangerous situation, you may file a complaint with OSHA. This will trigger an investigation.

How do I report an unsafe condition in a mine?

The Mine Inspection Safety Office is the Wyoming state agency charged with enforcing safety rules and regulations in Wyoming mines. Safety complaints will trigger an investigation. Complaints can be made to the Mine Inspection Safety Office.

Alternatively, safety complaints can be made to the Federal Mine Safety & Health Administration (MSHA) through its National Hazard Reporting Anonymous Hotline. You will not need to identify yourself when you file a complaint through the hotline and your immigration status will not be checked. Hotline complaints can be made online or by phone at: 1-800-746-1553.

Further, once you have filed a complaint, you may not be discriminated against for exercising your health and safety rights. If you are discriminated against, you may file a whistleblower report with MSHA.

How do I file a whistleblower complaint?

If you are retaliated against for filing a health & safety complaint, you may file a whistleblower complaint with the Federal Occupational Health & Safety Administration. Whistleblower complaints can be filed online or by phone at: (720) 264-6550

Retaliation includes: “firing or laying off; blacklisting; demoting, denying overtime pay or a promotion; disciplining; denying benefits; failing to hire or rehire; intimidation; reassignment affecting your promotional prospects; reducing your pay or hours” (www.whistleblowers.gov/). For example if you testify in an OSHA investigation and your employer suddenly cuts your hours in half, you have likely been retaliated against for exercising your rights under the Wyoming Occupational Safety & Health Act.

There are strict timelines governing how quickly a complaint must be filed. For example, if you are retaliated against for exercising rights under the Occupations Safety & Health Act, you must file a complaint within 30 days. If you are retaliated against for exercising rights under the Federal Rail Safety Act, you must file your complaint within 180 days. Bottom line, it is important to quickly file whistleblower complaints.

Whistleblower Law Enforced by OHSA

Timeframe for Reporting Retaliation

Occupational Health & Safety Act

30 Days

Surface Transportation Assistance Act

180 Days

Asbestos Hazard Emergency Response Act

90 Days

International Safe Container Act

60 Days

Federal Railroad Safety Act

180 Days

National Transit Systems Security Act

180 Days

Clean Air Act

30 Days

Federal Water Pollution Control Act (“Clean Water Act”)

30 Days

Toxic Substance Control Act

30 Days

Click Here for more information about the Whistleblower Statutes enforced by OSHA and the timelines for reporting violations.

When an Injury Occurs:

Can I sue my employer if I am hurt on the job?

Although the goal is always to prevent injuries before they occur, workplace injuries will happen. Ordinarily, the only remedy for injured workers is through Workers’ Compensation. However, there are some important exceptions to this rule, more specifically explained below.

How do I file for Workers’ Compensation?

If you are injured on the job you must file for Workers’ Compensation. If your employer pays into Workers’ Compensation, you will most likely be eligible to have your injury-related medical bills entirely covered. You may also be eligible for two-thirds (2/3) of your lost wages up to the statewide average monthly wage (approximately $3700 per month) if you are unable to work as a result of the injury.

The first step to filing a Workers’ Compensation claim is to notify your employer within 72 hours of an accident. It is also a good idea to keep a list of witnesses who observed the accident and ask for witness statements immediately. You may also want to take pictures of the accident site or your injuries.

If you feel that it is necessary, you should request medical treatment from a local physician or emergency room immediately. You employer does not have a right to accompany you into the examination room or to refuse your request to seek medical treatment! Never accept under-the-table offers of cash or other benefits in exchange for not filing for Workers’ Compensation.

At the hospital or doctor’s office you may be given paperwork to file a Workers' Compensation claim. You must file a Workers’ Compensation claim within ten days. If for some reason you are unable to do so, you should still attempt to file later, as the Department of Workforce Services has discretion to accept a late claim.

Steps to filing for Workers’ Compensation

1. Seek the medical attention that you feel is necessary

Remember: Your employer does not have the right to accompany you into the examination room!

2. Notify your employer within 72 hours of the accident

3. Keep a list of witnesses and ask for witness statements

4. Do not give into any pressure or intimidation not to file. Do not accept any under-the-table offer!

5. File a Workers’ Compensation claim within 10 days!

Can my employer fire me because I filed for Workers’ Compensation?

Your employer cannot fire you because you filed for Workers’ Compensation. However, your employer can most likely fire you after you have filed for Workers’ Compensation if you are injured and unable to perform you job. If you think you were fired because you filed for Workers’ Compensation, you may have a civil claim against your employer. This means that you can consult with and hire a private lawyer and file a civil complaint against your employer to recover damages such as lost wages.

What if my employer asks me not to report my workplace injury/ file a Workers’ Compensation claim?

It is fraudulent for your employer to encourage you not to report a workplace injury or to interfere with your right to file for Workers’ Compensation benefits. Employer fraud can be reported to the Department of Workforce Services online or through the fraud telephone hotline at: 1 (888) 996-9226.

What benefits are available through Workers’ Compensation?

Workers’ Compensation provides a variety of benefits to workers who suffer a workplace injury. A general overview of the various benefits is provided below.

Medical benefits:

Workers’ Compensation will pay for all medical care directly related to a workplace injury. Upon submitting a claim, an injured worker will be issued a case number. This number should be given to all health care providers, including pharmacies, in order to ensure accurate billing for the claim.

  • You have the right to choose your own primary care provider.
  • Your employer or Workforce Services may request that you see a specific doctor for a second opinion. In this case you may be eligible for a travel reimbursement.
  • You will be reimbursed for travel to the closest available medical provider unless the closest available medical provider is located less than ten miles away.
  • Workers’ Compensation pays medical providers according to a set fee schedule. Medical providers within Wyoming may not bill you for excess charges, however medical providers out of-state may bill YOU for charges in excess of what Workers’ Compensation will pay.
  • For more information on medical benefits covered by Workers’ Compensation, click here.

Temporary Total Disability Benefits (“TTD”):

Injured workers who are unable to work may be eligible for Temporary Total Disability Benefits (TTD) to make up for lost wages. A separate application is required to apply for these benefits. TTD will pay an injured worker two-thirds (2/3) of their gross monthly income at the time of their injury. The maximum benefit, however, is limited to the statewide average wage for the month of the injury. TTD benefits will increase by 3% if all medical care is provided in Wyoming.

Permanent Partial Impairment:

Injured workers may receive monetary compensation for a permanent physical impairment if they are unable to fully recover. This benefit essentially pays you for your continued physical limitations. For more information on the Permanent Partial Impairment benefit and how it is calculated, click here.

Permanent Partial Disability/ Vocational Rehabilitation:

If you have a permanent injury, you will also be eligible for benefits that cover the economic impacts of your injury. These benefits may be available through Permanent Partial Disability or Vocational Rehabilitation, however you cannot receive both benefits. Vocational Rehabilitation is a program designed to help you return to work. Permanent Partial Disability is compensation for the difference between your current earning capacity and your earning capacity before the injury. Click here for a more detailed description of these two programs.

You become eligible for the Permanent Partial Disability benefit if you cannot return to work at a comparable salary to what you earned before the injury, in any occupation. You become eligible for Vocational Rehabilitation if your injury prevents you from returning to work in a field that you were employed in during the three-year period before your injury.

Permanent Total Disability:

If your workplace injury permanently prevents you from future employment, you may be eligible for a Permanent Total Disability award. This is a monetary benefit that is calculated to make-up for your very serious injury and lost earning capacity. Click here for more information.

Death Benefits:

If an employee is killed in a workplace accident, his/her spouse and dependent children may be eligible for a death benefit. This will be a monetary award equal to a percentage of the worker’s wages, which will be paid for 100 months following the incident. Click here for more information on Death Benefits.

Examples of Workplace Injuries and Eligible Benefits

Workplace Injury

Treatment/ Recovery

Possible Benefits

Twisted Ankle
  • Employee may return to work after 2 days
  • Medical Benefit

Broken Leg
  • Employee cannot work for 6 weeks
  • May return to work after 6 weeks at full capacity
  • Employee fully recovers
  • Medical Benefit
  • TTD

Broken Back
  • Employee cannot work for 8 weeks
  • May return to work at reduced hours/ pay after 8 weeks
  • Employee cannot earn his pre-injury wages in any occupation
  • Employee is not expected to fully recover-- employee will continue to live with pain from the injury
  • Medical Benefit
  • TTD
  • Partial Permanent Disability
  • Partial Permanent Impairment

Broken Back
  • Employee cannot work for 10 weeks
  • Employee cannot return to occupation that he has worked in during the 3 years prior to his injury
  • Employee cannot earn his pre-injury wages in any occupational field
  • Employee is not expected to fully recover--will continue to live in pain from the injury
  • Medical Benefit
  • TTD
  • Partial Permanent Disability OR Vocational Training
  • Partial Permanent Impairment

Broken Back
  • Employee is paralyzed
  • Employee can never work again in any occupational field
  • Medical Benefit
  • Permanent Total Disability

Employee is killed
  • Employee is killed
  • Death Benefit

Can I sue my co-employee if he/she caused my injury?

In addition to Workers’ Compensation, a claim may be available against a co-employee if the injury is caused by their willful or wanton misconduct. This is an incredibly difficult standard to prove because you have to show that your co-employee’s behavior went far beyond negligence and approached intentional conduct. A claim against your co-employee would be a civil claim, meaning you will have to hire your own attorney and pursue any rights you may have in court.

What if a third party caused my on-the-job injury?

You may have a civil claim, in addition to Workers’ Compensation, if a third party caused your injury. A third party is someone other than your employer or your co-employees. For example, if you are driving in the company truck and truck that is not owned by a completely different company rear-ends you, you may have a claim against the owner and/or operator of that truck.

Prepared by Sarah Kellogg, intern at L.A.W. Lawyers and Advocates for Wyoming. April 2014.