A waiter’s or waitress’s job can be demanding. One of the worries associated with this type of job is what you should do if you have an accident at work. Commonly, these are things like burns and scalds while handling hot liquids and food, as well as slips, trips and falls.
Many waiters and waitresses are able to make a claim for workers’ compensation. A successful workers’ compensation claim can help pay for medical treatment, lost wages and benefits for temporary or permanent disability.
In order to be eligible for workers’ compensation, you must work for an employer who has workers’ compensation insurance and you must be able to prove your injury was related to your job.
It doesn’t matter whether you are a seasonal or part-time employee as a waiter, you may still be eligible to file a claim for workers’ compensation benefits. Sometimes there is confusion about casual or temporary workers. As long as your employer is deducting tax from your pay you are classified as an employee and should be entitled to workers’ compensation when you need it.
Lost Wages as Part of a WC Claim
Wages for waiters and waitresses vary widely from state to state, region to region, restaurant to restaurant or bar to bar. Mean hourly wage rates across the country for a full time waiter or waitress were $9.61 and mean annual wages were $24,410 in May 2016 (Figures provided by the Bureau of Labor).
These figures are important because they:
- indicate the fact that waiters and waitresses may depend on workers’ compensation to pay medical bills for injuries that occur at work;
- are used to help calculate the portion that may be included in a workers’ compensation claim. Note that most state laws allow for only a percentage of the average lost wage, which is typically around two thirds of the normal wage.
Common accidents that waiters and waitresses suffer from while at work may mean that they are unable to return to work for anything from a few days to a few weeks. More rarely, they may not be able to return to the same type of job or even work at all.
Many accidents in a restaurant involve sprains, strains and broken limbs as a result of a slip, trip and fall while carrying food or drink between the kitchen and customers in the dining area.
In the event that a waiter or waitress breaks a leg or arm while working, there may be a need to claim compensation for the disability. Provision for disability depends on the state, but a typical scenario is that an injury falls into one of the following categories. There may be compensation granted for each category.
- Permanent total disability: This is rare and happens only when a worker is so badly injured from an injury, such as paralysis resulting from spinal damage after a fall, that they cannot return to the job at all.
- Temporary total disability: This is more common and is when the injured waiter is quite badly injured and cannot return to work for a short time but the injury is not permanent. For example, when a waiter or waitress spends a couple of weeks away from work recovering from a broken limb after a slip, trip and fall.
- Permanent partial disability: When a worker can work but typically not the same exact job because of the injury sustained. In a restaurant the worker may be offered retraining or another job somewhere else, for example in the kitchen.
- Temporary partial disability: When a worker may be able to do the job performed before but after a period when they are only able to do something else.
A workers’ compensation attorney can explain what these categories mean in your particular circumstances and how much should be included in your claim.
Gathering Relevant Evidence
A successful workers’ comp claim depends on reliable and convincing evidence that details what the injury was, how it happened, that it genuinely happened at work and how much it cost to fix it. This means collecting the following information:
- Statements from other waiters or waitresses at work who saw how your accident took place.
- Statements from your supervisor or restaurant / bar manager.
- Statements from any customers who are prepared to describe what happened.
- Doctor’s report or any other medical documents that provide details of your injury such as x-rays, prescriptions, hospital invoices etc.
What You Need for a Claim as a Waiter
If you are working in a hotel as a waiter and you slip and fall on food and drink dropped by customers and you hit your head on the corner of a table and sustain concussion you will need to prove your injury took place at work. The sorts of evidence that will help you win a workers’ compensation settlement include:
- proof that you reported your injury by the deadline set;
- written and signed reports describing the accident from reliable eye witnesses;
- photographs taken immediately at the accident scene showing the food and drink you slipped on;
- video taken from the hotel’s in store surveillance cameras;
- your doctor’s report describing your injuries and when and how they happened and how long it will take to recover;
- receipts showing medical treatment paid for by you;
- unpaid invoices for any other treatment you have received for concussion.
Average Workers’ Comp. Settlement for a Waiter
The average cost of treating a concussion from a slip and fall injury is $18,454. There are several different expenses associated with treating concussion which make up the claim for workers’ compensation. These are temporary hospitalization, physical therapy, occupational therapy and prescription medications.
Calculating Workers’ Comp Settlement
When a workers’ compensation claim is calculated, it includes the cost of all medical treatment and 2/3rds of the worker’s weekly wage. Calculating a waiter’s wage isn’t as easy as other workers because according to federal law employers can take a tip credit by paying tipped workers, such as waiters and bartenders, only $2.13 per hour if those workers earn no less than $7.25 an hour, which is the standard minimum wage once their tips have been added up.
It shouldn’t be too difficult to work out what the injured waiter was earning at the time of the injury because s/he would have asked for proof of tips before making up the weekly wage packet to ensure it matches the federal minimum wage.
How to Calculate a Settlement for a Waiter Workers’ Compensation
The full cost for the average treatment of concussion is around $18,454. On top of that is the 2/3rds of the waiter’s weekly wage. Assuming a waiter earns the minimum wage of $7.25 per hour and s/he is off work for a fortnight 2/3rds of $7.25 = $4.83.
$4.83 x 40 hours = $193 x 2 weeks = $386.
Maximum workers’ compensation claim for a hotel waiter with concussion is $18,454 + $386 = $18,840.
How an Attorney Can Help You Make a Claim Successful
If you know your employer carries workers’ compensation insurance this will be half the battle, but you may find that both your employer and the insurer are obstructive or make things difficult for you to make a fair workers’ comp claim.
This is when a workers’ comp attorney can provide advice about your legal rights, let you know what paperwork you must produce and negotiate with your employer and employer’s insurer on your behalf.