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Does Workers’ Comp Cover Injuries to Fetuses and Babies?

If you are hurt on the job, chances are pretty good your medical bills and other compensable damages will be paid by workers’ comp. However, what if you were pregnant or nursing at the time, and your child was also hurt by something that occurred at work? Will he or she also be covered by the workers’ compensation insurance? The answer is that this depends on the circumstances of the injury. Here’s what you need to know about getting reimbursed for injuries to an unborn or newborn baby.

Only Derivative or Collateral Injuries Covered

The courts put the harm to fetuses and babies into two types of categories: derivative and independent. Derivative harm (also called collateral) is injuries the child sustains as a consequence of the mother’s injuries. For instance, the mother is impaled with a pole that also tears through the amniotic sac and hurts the child. The child’s injuries are a direct result of the mother’s physical injury.

On the other hand, independent harm consists of injuries that occur to the child separate from anything that happens to the mother. For instance, a mother is exposed to a chemical at work that gives her cancer. She also passes the chemical to her newborn through her breast milk, and that causes developmental delays. The child’s injury occurred independent of the mother’s illness.

Workers’ compensation only pays for derivative injuries to children resulting from harm done to the mother. The only way to recover money for fetuses and babies who suffer independent harm is to sue the company directly for compensation. This is actually the more preferable option because workers’ compensation often limits the amount of money you can recover. If your child suffers lifelong health complications because of something that occurred at work, you may not receive enough money to cover medical bills and other expenses. A personal-injury lawsuit significantly increases the probability you’ll get a fair settlement that takes your future needs into consideration.

Challenges to Obtaining Compensation

Getting workers’ compensation insurance to pay an injury claim for harm done to a fetus or baby can be very challenging, and the company—and even your employer—will make a number of arguments as to why the child is not eligible for benefits. One response you may receive is that the fetal injury is not connected to the workplace. This is common in cases where the injury is an illness. The insurance provider may try to argue the child was exposed to other toxins or materials that caused the injury.

You would need to provide medical proof that exposure to something in the environment at work is the most likely culprit. This can be done by submitting tests of breast milk or amniotic fluid showing the presence of toxins or showing the medical problems your child is experiencing are the typical result of being exposed to the chemical in question (e.g., exposure to certain solvents can cause cleft lip).

Another argument you may face is that, in some states, family members are barred from filing claims for losses they sustained because of the employee’s accident. For instance, a wife can’t ask for money for loss of companionship if she and her husband can no longer become intimate with each other. The insurance company may extend this to include any injuries fetuses and babies sustain as a result of injuries to the mother. In this case, you may need to establish that the child suffered injuries independent of the mother and sue the company directly for compensation.

Getting money for fetal or newborn injuries from workers’ compensation can be challenging. Discuss the issue with a workers’ compensation attorney to work out the best plan of action to take to get what you want.