WORKERS COMPENSATION
Workers Compensation was designed to
help workers injured on the job.
The United
States Department of Labor set certain standards that all the states must
follow, but within those standards the states each have huge latitude to make
their own laws and boy, have they!
Some states force employers to carry
their own insurance while others force them to pay into a fund whereby the state
manages the workers comp cases. There is much debate over which system is
better.
Small companies with only three or four
employees are not required to carry workers compensation insurance at all.
Before you sustain and injury -- or
certainly immediately after -- learn as much as possible about the laws in your
state.
Knowledge is power.
WHAT DO YOU DO IF YOU'RE INJURED?
The very first thing you do is tell your
supervisor that you have sustained an injury. If possible, put the accident in
writing and have your supervisor sign or initial and date it If there were
any witnesses to the injury, have them also sign and date it, too.
Of course if you're removed by
ambulance, this will be more difficult, but as soon as possible afterward, get
this done. It will prove invaluable in the future.
Secondly, whether you are taken to the
doctor or the hospital, have them document everything that is injured, from your
big toe to your pinky finger with x-rays. The more initial tests you have done,
the more likely workers compensation is to acknowledge your injuries as a result
of the accident.
One member fell, injuring her foot, leg,
hip, and shoulder on one side. Her doctor documented in writing that she had
contusions to the foot, a sprained hip and shoulder, but because the
doctor only had the foot x-rayed, a year later workers comp was still arguing
whether her hip and shoulder had actually been injured because it had
not been documented at the time. Much
to her shock, the fact her doctor had written down the injuries was not
sufficient documentation!
So push for all the tests you can get
immediately. Get all the written evidence from witnesses immediately before
anyone has time to think over what they're doing.
WHAT DO YOU DO AFTER THE FIRST
DAY?
Most states require your
supervisor/employer be notified within the first 30 days. Do this in person and
by writing, through registered mail.
Start a file and immediately begin
documenting everything. Every doctor's visit, every communication with your
employer, writing down the context of every phone call, every communication with
the workers compensation carrier, every test you have, the results -- DOCUMENT
EVERYTHING. There are fold-over nylon folder-holders that hold about ten
file folders which we've found especially helpful for keeping things sorted by
correspondence with employers, with doctors, prescriptions, business cards and
phone numbers, etc.
Although computers are handy, the also
crash, so don't trust them for your record keeping.
WHAT DOCTOR DO I SEE?
Some states allow you to choose your own
doctor and you may want to stay with your family doctor or find a specialist who
deals with your type of injury.
Other states have a selection of doctors
who work for them from whom you must choose.
In either case, if you are not satisfied
with the doctor -- who is called your "primary care physician" -- do
not hesitate to find or request another. Some doctors will not prescribe
narcotics for pain and when you're in excruciating pain, narcotics may be your
only recourse. Others just don't give a hoot about you. You have a right to be
treated with courtesy, respect, and efficiency. If you're not, don't be afraid
to ask around and get a referral to another doctor.
Follow the doctor's instructions
exactly. This may include an "off-work order" or a
"limited-duties work order."
Even after finding your own doctor or
being assigned to one, your employer may force you to see "their"
doctor.
INDEPENDENT MEDICAL EXAMINERS
These people are usually called
"Independent Medical Examiners" (IME's) and though their opinion is
supposed to be independent, your employer is paying them.
This doctor is NOT your friend. Provide
no more information than absolutely necessary. Answer questions with
"yes" or "no" -- period. You do not have to prove anything
to this doctor. S/He may insult you, say you are okay, accuse you of faking your
injury. Pay no attention -- the insurance company's doctors are hired to say
these things.
If you're female, don't bother with your
hair or makeup on the day you see this doctor. If you're a man, don't shave for
a couple days. In either case, wear slightly shabby clothes. Be prepared to be
treated like a slab of meat for this is what you are to them. They may act nice
-- beware, they are trying to deceive you into opening up. Even such innocent
remarks as "My what pretty painted toenails you have" is a loaded comment for
"how did you paint them yourself if you feel so awful?" ALWAYS have someone else
drive you to the appointment and preferably have them go into the office
with you as a witness.
FILING A CLAIM WITH WORKERS
COMPENSATION
This is something your employer should
take care of for you, but assume nothing. Ask your employer if they have filed a
claim. You should be notified by the Workers Compensation department of your
claim number and case manager. If you are unable to connect with your case
manager, do not be afraid to contact their supervisor. No state employee is out
of the office all the time.
If your employer does not take care of
this on a timely basis -- within two to three weeks, call the Department of
Workers Compensation yourself and report the injury.
WHAT ARE YOU ENTITLED TO?
You are entitled to free medical care.
This of course is limited to what workers compensation approves. They will
automatically approve most medications. For treatment, they require certain
forms be approved by them first, so don't rush into physical therapy unless
you're able to pay for it yourself.
They are infamous for refusing
treatment. Along the line you'll probably have to have a hearing to approve
treatment. This brings us to the question:
You are entitled to additional benefits
if you are permanently injured.
If You Are Temporarily Unable to Work:
If you become temporarily unable to
work, you'll usually receive two-thirds of your average wage up to a fixed
ceiling of 12 weeks. After that you'll receive a percentage of the amount you
received the first 12 weeks. Yes, your standard of living is going to change;
often drastically.
These payments are tax-free, so if you
received decent wages prior to your injury, you'll fare reasonably well in
most states. You will be eligible for these wage-loss replacement benefits as
soon as you've lost a few days of work. Again, study your state's law to see
when they have to begin paying you and how much.
Your family is entitled to additional
benefits if you die, which of course is great comfort to you.
You may be entitled to vocational
rehabilitation benefits -- that is, on the job training, schooling or job
placement assistance. The benefits paid through workers' compensation,
however, are almost always limited to relatively modest amounts.
Permanently Unable to Return to Work:
If you become permanently unable to do
the work you were doing prior to the injury, or unable to do any work at all,
you may be eligible to receive long-term or lump-sum benefits. The amount of
the payment you may be entitled to receive varies greatly with the nature and
extent of your injuries. If you anticipate a permanent work disability,
contact your local Workers' Compensation office as soon as possible; these
benefits are rather complex and may take a while to process.
BIG BROTHER IS WATCHING
Because of the number of unmentionable
people who defraud the system, your employer or workers comp may hire an
investigator who follows you and tries to obtain photos showing you performing
activities a person with your injury shouldn't be able to do. They may also sit
outside your home in a well-disguised van and record each time you venture out
of your home and what you do.
So if you use a cane, use it. If you
have trouble lifting or have lifting limits, follow them.
This is more common than you might
think. "Big Brother" is indeed watching. One reader told us that the
investigators put boulders in front of his garage door every night so he had to
move them to get his car out of the garage, thereby engaging in an activity he
shouldn't have been able to perform while they taped it.
APPEALS
If your legitimate benefits are denied,
you should immediately file an appeal with your state appeals agency -- called
the Industrial Accidents Board, the Workers' Compensation Appeals Board or
something similar. You may also want to hire an attorney to help you press your
claim.
CAN I SUE MY EMPLOYER?
Generally, no. The workers' compensation
system was established as part of a legal trade-off. In exchange for giving up
the right to sue an employer in court, you get workers' compensation benefits no
matter who was at fault.
Today, you may be able to sue in court
if your injury was caused by someone other than your employer (a visitor or
outside contractor, for example) or if it was caused by a defective product
(such as a flaw in the construction of the workplace equipment).
WHAT IF MY EMPLOYER THREATENS
ME IF I FILE A CLAIM OR TELLS ME IT'S UNNECESSARY?
This is a violation of the workers'
compensation laws in most states. Report this immediately to your local workers'
compensation office.
CAN MY EMPLOYER FIRE ME WHILE
I'M ON WORKERS COMPENSATION?
Contrary to popular opinion, YES.
Of course you can also turn around and
sue them under the Equal Employment Opportunity Committee (EEOC) but these cases
are becoming harder and harder to prove and receive compensation for,
unfortunately for us. Plus the EEOC is infamous for not returning phone calls
and even telling you that an attorney has been assigned to your case and you
never hear from that attorney.
Forget the great big bucks. Most
injuries have a monetary award attached to them. Again, check your state's laws.
Be careful about signing any settlement papers. Your medical needs may continue
for the rest of your life and you want to be certain those needs will be taken
care of.
DO I NEED AN ATTORNEY?
Only you can decide this one. Workers
Comp, like most of the legal system, is comprised of the good ole boys network.
As a novice, you're probably not going to get much done if you
don't have an attorney. They're very handy for getting your weekly benefits
started and fairly handy for getting treatments approved.
On the minus side, the attorney will
take part of whatever settlement you eventually receive. Some states put a cap
of 20% on this while others allow as much as 30% PLUS costs. Attorneys are
infamous for piling on costs.
As a layperson, even by studying the law
in your state thoroughly, you're not going to grasp the intricacies the way an
attorney does. You're also not a part of the good ole boy network, which is a
strike against you from the start.
When it comes time to discuss
settlements -- and this may be years down the road depending on the extent of
your injury -- they DO earn their keep, obtaining larger statements than you
will by yourself. Of course, this is so they can take a larger portion, but
that's why they're in the business to begin with.
So all in all, it's still a personal
decision. Talk to other people in your area, in support groups, etc., to find a
good one, but if you don't have a major injury, be prepared to be allocated to
the bottom of the attorney's interest pile.
OTHER ASSISTANCE
While waiting for your benefits to
start, or after they start and are too little to live on, you may qualify
for welfare, Social Security Supplemental Income (SSDI), food stamps, food
pantries, rental
assistance, and other programs. Check with your county Human Services Department
for information on eligibility.
PRIDE
It was once said, "Pride goeth
before the fall." Unfortunately, with a workers compensation accident,
pride usually goeth with the fall. Do what you need to do to survive. After all,
you've paid into these systems all your working life. Now is the time to get
some of that money back.
THE UNWRITTEN RULES
This is the part no one will tell you
except someone who's been through the system. You won't want to believe any of
this, but it is the gospel truth.
If you get into the worker's
compensation system, you're going to need lots and lots of patience. A support
group or a dozen of them is also a good idea. Don't worry about time; you'll
have plenty of that to get together with them, online or face-to-face.
You're going to need both because you've
just entered a world of conundrums where nothing is as it seems or should be.
Workers compensation was created to take
care of injured workers and get them back to work, but that's just the public
line. In actuality, you're just one of a few zillion people in their eyes who
are faking injuries for the sole purpose of a poorly paid vacation. Of course
this makes no sense to the normal, intelligent person. Who wants their life
completely ruined, their house foreclosed on, their lifestyle reduced to living
on substantially less than when they were able to work?
You will have a difficult time getting
your rightful benefits, the treatment you need to get better, and finding
doctors who will believe and swear that there is anything wrong with you and
request that treatment in the first place. Workers compensation doctors know
payment is going to be slow in coming and though they may take you on, you're
not going to be high on their list of priority patients.
Your Workers Compensation Helpers
Your workers compensation caseworker has
about a trillion cases. Now that voice mail has been invented, you will find
yourself talking to it more than you'll ever talk to your caseworker. If you
don't get a call back, you have the right to try to find out who your
caseworker's manager is and elevate your question to that person. You better
have records of the dates and times you called your caseworker because your
caseworker will never have received those calls.
Oh yes, their voice mail box is often
full, so you can't leave a message anyway. Be sure to tell their supervisor's
voice mail that, unless of course their voice mail box is full too. You can
elevate your question to that supervisor's supervisor and so on and so on until
you find a voice mail box that isn't full or a live person to talk to.
These people are always "off"
or "in a meeting" which would appear to be the real reason nothing
ever gets done. The meetings topics are probably how not to pay for
treatment.
There is an unwritten mandate for them
to hoard the money as if it is their own and not approve any treatments for at
least two years after your injury.
Hearings
Hearings are workers compensation's way
of giving you false hope. You will become familiar with hearings through the
number of times they are set and postponed. Your employer will do nothing for
the first year, depending on the system to fumble and stumble over its own feet
and postpone treatment and hearings at least that long.
When you hear from your employer's
attorney, things might actually start happening. Not good things, mind you.
Things like Independent Medical Examiners. These are basically hired guns who
were once perhaps practicing doctors who weren't very good or just plain lazy
and found out they could make tons of money rendering opinions while saving on
offices and overhead and malpractice insurance since they're no longer actually
practicing medicine.
A doctor can't be sued for rendering an
opinion, so they render them a few days a week, and the rest of the time they
vacation in Europe or the South Seas several times a year, when not driving one
of their several luxury cars or residing in one of their luxury homes.
Lawyers hate these doctors because they
can't sue them. Doctors, unlike other people who can be sued for libel, can
render opinions all day long and be completely immune from being held
responsible.
Once a year they will render a positive
opinion in support of a patient's injury just to break the monotony and prove
they are not completely negative buttheads. The rest of the time you will not
recognize whom they are talking about when you read their report about you after
you spend five minutes not being examined by them during your mandatory
examination or you may get really unlucky and get one who talks and talks for an
hour while saying nothing.
The result is the same. They are your
enemy, the enemy of all people injured and their reports will always be negative
even if you walk in with an opened artery.
Your Lawyer
By all means get a good workers
compensation lawyer. This will often be a disembodied voice on the telephone. He
also takes long and frequent vacations while the paralegals and other lackeys in
his office run his business. However, without one, you can't navigate the system
at all.
Some states have wisely put a cap on how
much this attorney can take out of any settlement you may get; others will let
him charge you each time your file crosses his desk. Notice I say
"cross" because it is doubtful they actually ever look at your file.
That's for the paralegals and lackeys. The only good thing is that they normally
don't get paid until you get a settlement and then, if there's not a cap, you
will pay through the nose.
When there is a hearing, they will send
one of their lackeys. Now you will expect these lackeys to be as prepared and
educated on your case as you are. This is an unrealistic expectation. Their
caseload is also humongous so they may have glanced at your file on the way to
the hearing. You should be prepared to represent yourself.
At the hearing, there are usually
several hearing rooms with a large waiting room in which people are hurriedly
conferring with their attorneys. This will often be the first time you will meet
your attorney or lackey. They may or may not show up on time. Showing up on time
is a big deal with the hearing officers. It's not a big deal with the attorneys
and lackeys.
It will not matter how bumbling or
unprepared the attorney for the other side is; they'll probably still
"win" because losing would cost the workers compensation system money.
Losing would mean the system would have to acknowledge you are truly injured and
need treatment and that costs them money.
In summation, the workers compensation
system doesn't care if you have enough or any money to live on, get well or
don't, return to work or don't. Your attorney doesn't care a whole lot more.
Your doctor probably cares most out of all the people you'll deal with, but only
after you've shopped around and gone through ten or more and actually found a
decent one who believes you're injured and deserve treatment. Even then the
workers compensation system will completely tie their hands except for
medication.
Surveillance
Yes, you are subject to surveillance. A
system that won't spend $50 for treatment will happily pay thousands to have
someone follow and videotape you. At any time and any place. The other side will
also do this. So even if you have a rare good day when the pain level is low or
you don't need your cane or can actually walk on your own, remember: they're out
there and they're waiting and watching for just that one day.
And Remember:
Document
Everything
Learn Your
State's Workers Compensation Law
Find Out What
Other Assistance Is Out There
And don't believe a
word they say.
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© 2003, S.D. Hunter
