Work Injuries

Your employer needs to be notified of the injury within 90 days of the injury or your claim may be barred.

Worker’s compensation laws allow the employer to dictate, for the most part, what medical is provided and by whom because the employer is responsible to foot the bill. It is important to attend all medical appointments and to be honest with the providers about injuries, pain, etc., always advise the medical provider about the full extent of the injury and the severity of the pain. Failing to follow through with appointments and treatment can reflect negatively upon your claim.

There are statutes of limitations for filing claims with the worker’s compensation office; a claim must be filed within two years of the date of injury or three years from the date of last payment of worker’s compensation benefits. Failure to file the claim in a timely manner could bar your claim. Additionally, a skilled attorney will review the benefits that have been paid to ensure that the insurer paid the correct amount and in a timely fashion. It is not uncommon for an insurance company to either fail to pay benefits when they are supposed to, or to pay less than what is required. Additionally, if the employer denies your worker’s compensation claim an attorney should be sought immediately to try to help you get medical and other benefits that you may be entitled

All reasonable and necessary medical care incurred to treat a qualifying injury is required to be paid for by the employer. If the employer is accepting liability and they are paying for the medical bills, they get to choose the medical provider.

Injured workers are entitled to have their mileage expenses reimbursed for traveling to and from doctor’s appointments. The mileage reimbursement rate for workers’ compensation is the same as is allowed by the IRS for business travel. It is best practice for injured workers to keep a log of the mileage for each doctor’s appointment.

For injured workers who are unable to drive to doctor appointments and require special transportation, those costs are also subject to reimbursement.

Basically, the weekly rate is 80% of the injured worker’s after-tax average weekly wage. Weekly compensation benefits have a fixed minimum and maximum that are available and those numbers are adjusted from year to year.

To determine the weekly rate payroll records must be used. The average of the thirteen representative weeks prior to the injury is used. “Non-representative” weeks are not used. “Non-representative” weeks are those where the injured worker was sick or took a vacation. Regularly paid bonuses and overtime may be able to be included in the rate calculation. However, it is important to note that full credit is not given for overtime; it is paid at the regular rate.

The claimant’s marital status and number of dependents also affects the weekly rate. The applicable rate increases if the claimant is married; it also increases with the number of dependents.
There are weekly rate tables available at the Workers’ Compensation Commissioner’s website to determine the applicable weekly rate. To determine rate, follow the table down until you reach the average gross weekly wage of the claimant, look at if they are single or married, then choose the rate that corresponds to their number of dependents.

Types of disability benefits include:

An injured employee who is off work for more than three calendar days, temporary total disability benefits may be available beginning the fourth day. Benefits continue until the employee returns to work or is medically capable of returning to similar employment, whichever occurs first. If the disability period exceeds fourteen calendar days, the employee is entitled to be paid for the three-day waiting period.

If an injured employee returns to work at a lesser paying job due to the injury the employee may be entitled to temporary partial disability benefits. The value of the benefits is 2/3 the difference between the employee’s average gross weekly earnings at the time of the injury and the actual earnings while working at the lesser paying job. The three-day waiting period also applies to temporary partial disability benefits.

When an employee has an injury which results in permanent impairment, the employee may be entitled to healing period benefits during the period of recuperation. Healing period benefits begin on the first day the employee is off work until either: (1) the employee returns to work; (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) the employee is medically capable of returning to substantially similar employment to that engaged in at the time of injury.

If an injury results in permanent disability the employee may be entitled to permanent partial disability benefits based upon the degree of permanent disability.  Permanent partial disability benefits are payable in addition to healing period benefits and commence at the termination of the healing period.

Two types of permanent partial disability benefits exist:

Scheduled member disabilities: When an injury occurs to a scheduled member the value of the benefits is based upon the functional impairment to that body part.  Each scheduled member is valued at a specific number of weeks as follows:

•     Loss of thumb: 60 weeks
•     Loss of first finger: 35 weeks
•     Loss of second finger: 30 weeks
•     Loss of third finger: 25 weeks
•     Loss of fourth finger: 20 weeks
•     Loss of hand: 190 weeks
•     Loss of arm: 250 weeks
•     Loss of big toe: 40 weeks
•     Loss of any other toe: 15 weeks
•     Loss of foot: 150 weeks
•     Loss of leg: 220 weeks
•     Loss of eye: 140 weeks
•     Loss of hearing in one ear: 50 weeks
•     Loss of hearing in both ears: 175 weeks
•     Permanent disfigurement, face or head: 150 weeks

The number of weeks of benefits payable is for 100% loss, or loss of use.  If the disability rating is less than 100%, the percentage of rating is multiplied by the number of weeks shown.  As an example, a 10% loss of use to the first finger would be computed as 10% of 35 weeks, or 3.5 weeks of permanent partial disability benefits.

Unscheduled (Body as a Whole) Disabilities: An injury that results in permanent disability to a part of the employee which is not a scheduled member is an unscheduled disability.  Unscheduled disabilities are also referred to as an industrial disability and are compensated according to the percent the disability reduces the employee’s earning capacity.  Unscheduled disabilities typically include injuries to the back, neck, shoulder, and hip.  Factors that are considered when determining industrial disability include:

• Change in the employee’s earnings due to the injury;
• Medical condition of the employee prior to the injury, immediately after, and presently;
• The site of the injury
• The severity of the injury and length of the healing period;
• The work experience of the employee prior to injury, after the injury and the potential for rehabilitation;
• The employee’s qualifications intellectually, emotionally, and physically;
• Age;
• Education;
• Motivation;
• Functional impairment due to the injury;
• Loss of earnings resulting from a change in employment as a result of the injury;
• Inability to engage in employment suited to the employee as a result of the injury
• Industrial disability is computed by multiplying the percentage of disability by 500 weeks of pay.

When an employee is injured to the extent they are incapable of returning to gainful employment they may be entitled to permanent total disability benefits; which are payable for life at the same weekly rate as permanent partial disability benefits.

A surviving spouse receives weekly benefits for the remainder of his/her life, unless they remarry. If the surviving spouse remarries, they receive a lump sum of two years of benefits, if there are no surviving children entitled to benefits. Surviving children may receive benefits until the age of 18, or until age 25, if they are a student.

If a worker has suffered two scheduled injuries to separate body parts from separate incidents, they may be entitled to Second Injury Fund (SIF) benefits. Basically, the idea behind the SIF is that compensation for two separate scheduled injuries may not adequately compensate a worker for the resulting loss of earning capacity from the two injuries. The employer pays the scheduled benefits, the Second Injury Fund pays any extra industrial disability created by the two injuries.

Only the second injury needs to be work-related, the first injury can have been sustained by any cause. Both injuries must be to scheduled members (i.e. arm, leg, hand, foot, etc.) and cannot be a body as a whole injury.

When a person is injured at work, they tend to have more questions than their employer or medical providers have answers. Being injured and unable to work is a scary and uncertain situation for anyone to go through. Providing for your family is one of the main priorities in your life and you want and need answers to your questions. GRL Law is committed to providing injured workers with answers to their questions. Here are some answers to some of the most commonly asked questions following a workplace injury.

If you have questions that are not answered here on our website, send them to us and we will get you an answer at the earliest possible opportunity.

To prove that you are entitled to workers’ compensation benefits, a worker must prove:

1. You were an employee at the time of the injury, and
2. Your injury was suffered “arising out of” and “in the course of” employment.

1.EMPLOYEE V. INDEPENDENT CONTRACTOR

Employees are covered under the workers’ compensation act and entitled to its benefits.  Independent contractors are not covered, and, typically, neither are their employees.  Once the worker proves that s/he was providing services for the employer at the time of the injury, the burden of proof shifts to the employer to prove the worker was an independent contractor.  Whether a person is an employee or an independent contractor is a question of fact.  There are a number of factors to consider when determining if a person is an employee or an independent contractor.  It is important to understand that neither the intent of the parties, nor one factor is determinative.  The factors to consider are:

• The existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price.
• The independent nature of his business or of his distinct calling.  Basically, does the worker have his own business separate from the work he is performing for the employer.  If there is an independent business that is more likely to show he is an independent contractor.
• The worker’s ability to employ assistants with the right to supervise their activities.  If the worker is an employer, paying wages and supervising employees that is evidence of an independent contractor.
• The worker’s obligation to furnish necessary tools, supplies, and materials.  An employer supplying tools, supplies, and materials is evidence the worker is an employee.
• The worker’s right to control the progress of the work, except as to final result.  If the employer has a right to control the manner in which work is done, that is evidence of an employer/employee relationship.
• The length of time which the worker is employed.  A longer period suggests employer/employee relationship.
• The method of payment.  If the worker is paid by the hour or week that is demonstrative of an employer/employee relationship.  If the worker is paid by the job, that is indicative of an independent contractor.
• Whether the work is part of the regular business of the employer.  If the worker is performing work that is typical of the business of the employer, that shows an employer/employee relationship.

 2. ARISING OUT OF/IN THE COURSE OF EMPLOYMENT

In order for an injury to be compensable under workers’ compensation it must both “arise out of” and occur “in the course of” employment.  “Arising out of” refers to the cause or source of the injury, meaning the employment activity contributed in some fashion to the injury.  “In the course of” refers to the time, place, and circumstances of the injury.  In other words, the injury happened at work, or because of work.

For instance, a person having a heart attack at work, that may be in the course of employment (because it happened at work), but is not necessarily arising out of employment (since the heart attack may have been caused by factors not related to the employment).  If a worker loses an eye because co-workers are throwing objects in an act of horseplay, the injury meets the “arising out of” requirement, but not the “in the course of” requirement.

Typically, workers who are injured either coming to or going from work are not covered under workers’ compensation, unless the worker meets an exception to the going and coming rule.  If a worker is required to drive in the course of their employment that it typically covered.  Additionally, if a worker is injured while running a work errand, even if it is on their way to or from work that is compensable.

Idiopathic injuries are not compensable.  The relates to the “arising out of” requirement.  Idiopathic injuries are those that were just as likely to happen elsewhere due to reasons entirely personal to the worker, but coincidentally occurred at work.  For example, a worker injures his/her back while twisting on a toilet at work is an idiopathic injury.

TWO-YEAR STATUTE OF LIMITATIONS
If no weekly benefits have been paid to the injured worker, the injured worker has two years from the date of the injury to file a workers’ compensation claim.  Medical benefits DO NOT count as weekly benefits.

The discovery rule can extend the two-year statute of limitations.  The two-year statute of limitation does not begin until the injured worker:

1. knows of the injury; and
2. Is aware of its probable, compensable nature.

The “cumulative injury rule” can also extend the two-year statute of limitations.  The “cumulative injury rule” applies to injuries that develop over the course of time, such as carpal tunnel.  The date of the injury is when the cumulative injury manifests itself – when the injury and causal relationship of the injury to the claimant’s employment would be plainly apparent to a reasonable person.

THREE-YEAR STATUTE OF LIMITATIONS
If weekly benefits have been paid to the injured worker, the worker has three years from the date of last payment to file a claim.  The operative date is the date the payment was issued, not the date it was received.

90-DAY NOTICE REQUIREMENT
An injured worker is required to give notice to their employer of the injury within 90 days of the injury.  If the employer has first-hand knowledge of the injury, that is sufficient.

The discovery rule also applies to the 90-day notice requirement.  The 90-day notice requirement runs from the date the employee, acting as a reasonable person, recognizes its nature, seriousness, and probable compensable nature.

No particular form of notice is required by law; however, best practice is to notify the employer in writing.

A number of questions often come up with a person is injured at work. One of the first questions often becomes “how is medical treatment handled under workers compensation?” Here is a general explanation of a workers choice of medical care and who is responsible for paying for the medical care necessitated by a work related injury.

EMPLOYER CHOICE OF CARE
If the employer is paying for the medical bills, the employer gets to choose the doctor.  Subject to an exception, if the injured worker seeks treatment from an “unauthorized” doctor, the employer is not required to pay the bill.

ALTERNATE CARE
If the injured worker is not satisfied with the medical care provided by the employer’s chosen doctor, the injured worker can petition the Workers’ Compensation Commissioner’s Office for alternate medical care.  The injured worker must show at hearing that the employer provided care is unreasonable.  This usually consists of a medical opinion from another provider.

Alternate care can also be sought in these situations:

• When the treating doctor has no further care to offer, yet the injured worker is still experiencing symptoms.
• When an employer refuses to authorize a referral for testing or to a specialist.
• If the claimant is unduly inconvenienced by being made to travel for care when suitable care is available locally.

INDEPENDENT MEDICAL EVALUATION
An injured worker is entitled to an independent medical evaluation (IME) at the employer’s expense.  If an authorized treating doctor has provided a permanency rating, and the claimant believes the rating is too low, or incomplete in some manner, the injured worker can get their own permanency evaluation done.  This a one-time, second opinion from a doctor of the injured worker’s choice, regarding the permanency of the injury.

An IME is not available at the cost of the employer if they are denying liability.

PENALTY BENEFITS

If the employer or insurance carrier denies, delays, or terminates weekly benefits without reasonable cause or excuse penalty benefits may be awarded.  Penalty benefits may be up to 50% of the weekly benefits which were improperly denied, delayed or terminated.

To be considered reasonable cause or excuse the employer shall satisfy all of the following criteria:

1. The excuse was preceded by a reasonable investigation and evaluation by the employer or insurance carrier into whether benefits were owed to the employee.
2. The results of the reasonable investigation and evaluation were the actual basis upon which the employer or insurance carrier relied upon to deny, delay, or terminate benefits.
3. The employer or insurance carrier contemporaneously conveyed the basis for the denial, delay, or termination of benefits to the employee at the time of the denial, delay, or termination of benefits.

Penalty benefits DO NOT apply to unpaid or delayed medical benefits.

INTEREST

Interest is due on delayed or unpaid benefits regardless of whether the delay was unreasonable.  Interest is due on unpaid or delayed benefits regardless of the reason.

ADVICE FOR CLAIMANTS

If weekly benefit checks are being sent directly to the claimant, he/she should copy both the check and the envelope it was sent in and save them.  Additionally, claimants should document in a spreadsheet:

• The dates the weekly benefit check was intended to cover
• The amount of the check
• The date the check was cut
• The date the check was mailed
• The date the check was received
• The date the check was due

This spreadsheet, along with the copies of checks and envelopes should be turned over to your attorney.
Anytime a client has their benefit checks sent to our office, we document all this, and more, for them before we issue the check to the client.