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.

  • If you're permanently unable to return to work, you may qualify for Social Security Disability benefits. Social Security will, over the long run, provide more benefits than workers' compensation.

    Be forewarned that these benefits are difficult to get and definitely require an attorney. They are reserved for seriously injured workers. To qualify, your injury or illness:

    • must prevent you from doing any "substantial gainful work," and
    • must be expected to last at least twelve months, or to result in death, and
    • you must have a certain amount of "qualifying working quarters" before you are eligible.

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