WORKERS COMP

Do I Need a Lawyer?

In cases when the employer and the insurance carrier meet the minimum expectations for administration of an accepted claim and the injuries ultimately allow a return to work with the employer, there is very little need to hire an attorney. However, when workers are denied access to benefits or questions arise concerning the need for future disability and/or medical compensation, legal representation may be necessary. The following is a list of some of the more common reasons (or issues that benefit from legal review) to seek legal advice:

Denied Claim: Not every injury at work is accepted. There are a number of reasons a claim may be denied. There are times that an employer or insurance carrier may have questions concerning whether a claim fits the legal definition of a compensable event. In those situations, they will deny the claim. The decision to deny a claim is not absolute. If requested, the Industrial Commission will decide whether the injured worker is entitled to workers’ compensation benefits.

If your claim has been denied, it is wise to talk with an attorney to evaluate the strengths and weaknesses of your claim so that you can decide whether to pursue an appeal of the denial.

Refusal to initiate Disability Compensation: While the claim may be accepted, meaning the insurance carrier and/or employer agrees that the injury is related to the worker’s employment, they may dispute whether lost wages are the result of the accepted injury. In other cases, the insurance carrier simply fails to respond to requests for payment of disability compensation. If the injured worker is out of work and not receiving disability benefits, he or she can petition the Industrial Commission to order the insurance carrier or employer to initiate the payment of weekly wage loss compensation (also known as temporary total disability or TTD).  

Denied access to medical treatment:  The insurance carrier has the right to direct medical treatment. This allows the carrier to select the doctor but it does not allow the carrier to ignore treatment recommendations from the authorized treating physician (the doctor selected by the carrier). Also, the opportunity to direct treatment is not absolute. An injured worker may request a second opinion to address questions regarding appropriate care. In cases where the insurance carrier refuses to authorize treatment recommended by the authorized treating physician, the law allows the Industrial Commission to intervene and compel the carrier to provide access to the recommended treatment. Also, if the carrier refuses to provide a second opinion, the Industrial Commission can provide an order compelling the carrier to provide access to a second opinion. Similar cases where the injured worker is denied of access to disability compensation, he or she can petition to Industrial Commission to compel access to appropriate medical treatment. 

Questions regarding available light duty: If an injured worker cannot safely return to his or her pre-injury position, employers may offer work that accommodates the physical limitations. The opportunity to return to work is beneficial for all involved, assuming the position offered does not further aggravate the injury and it provides a reasonable opportunity to regain pre-injury wage earning capacity. 

Temporary accommodation is permitted and encouraged  within workers’ compensation claims.

That said, it is good practice to secure written confirmation of the offered position in order to confirm expectations for all parties.  Written job descriptions minimize the risk of a misunderstanding concerning the nature of work to be performed, the compensation to be paid and the duration of the temporary accommodation. Parties frequently find themselves in litigation having failed to clearly confirm return to work expectations, allowing misunderstandings to arise and the termination of a longstanding employment relationship. All parties, but injured workers in particular, should be wary of verbal offers of temporary light duty assignments.

In circumstances involving accommodation of permanent physical limitations, careful consideration must be given to the long-term ability of the employer to continue the position. If the offered position is made solely to accommodate permanent restrictions and does not provide a true benefit to the employer, there is greater risk that the position could be eliminated. For this reason, positions that are not otherwise available in the competitive labor market are considered “make-work” and do not provide a true indication of an injured worker’s ability to earn wages within his or her permanent restrictions. Whether an offer to accommodate permanent restrictions is ‘make-work’ involves consideration of multiple factors that should be carefully reviewed before acceptance of the position that may terminate payment of disability compensation.

Disagreement concerning Average Weekly Wage: Disability compensation is paid based upon the average wages earned per week by the injured worker prior to his injury- typically the wages earned in the prior year. The calculation of average weekly wage may significantly impact the amount of money available to pay bills during the period of recovery and may substantially impact the value of the claim for future disability compensation.

Questions regarding settlement of future disability and medical claims: Permanent restrictions that limit an injured worker’s ability to return to his or her pre-injury employment impact their ability to replace future wage earning capacity. Under these circumstances, an injured worker must carefully consider his or her ability to secure alternative income and access to medical treatment; and then develop a reasonable transitional plan to ensure his or her ability to meet future financial and medical needs. 

Settlement often contemplates one lump sum payment in exchange for an injured worker’s waiver of future access to disability and medical benefits. Often this lump sum payment provides income to initiate a transitional plan. However, depending on the circumstances, settlement may not fit with the transitional plan to provide future financial stability.

Creating a transitional plan and determining whether settlement advances the goal of future financial stability can be complicated, depending upon the nature of the permanent physical limitations, future medical needs, opportunities to secure alternative employment or financial needs.

An injured worker with significant questions regarding replacement of wages should seek legal review of their transitional plan and consideration whether settlement provides a reasonable opportunity to successfully execute his or her plan.

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