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 an injury -- or certainly immediately after -- learn as much as possible about the laws in your state.
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 money issues:
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 compensation, 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.