Workers’ Comp Claims – FAQ

Answers to the Top Five Questions We Get Asked

1. My workers’ comp claim was denied. What should I do?

First, it is important to keep in mind that your employer and their workers’ compensation insurance carrier or claim administrator may actually have valid reasons to deny your accident claim. Such claim denials tend to fall into one of three main categories:

(a) I got hurt on-the-job, but the insurance adjuster says there was not a compensable accident based on the laws. Compensability means that you sustained an injury for which you are entitled to medical compensation and, if disabled from work, also entitled to wage loss indemnity. [Please see the article on Key Vocabulary for explanations of these concepts.]

Generally speaking, although there are some other technical aspects that may arise, with limited exceptions, the harmful incident must normally involve two things to be deemed compensable: (1) something unexpected and untoward (difficult to manage or prevent) occurred, and (2) it did not merely involve an activity which is a natural part of your job duties.

In essence, when you think about accidents outside of the work environment those typically are similar to what are contemplated by workers’ compensation: a slip and fall, an equipment malfunction, a car wreck, etc. Nevertheless, normally a compensable accident in workers’ compensation does not include injuries arising similar to getting hurt doing your normal activities of daily living but absent such events. For example, if your job requires you to place several boxes containing product parts on a table every hour, and one day you feel a pop in your right shoulder setting a box on the table, then you probably did not have a compensable accident, although it was an unexpected event, since lifting and moving the boxes is an inherent part of your job duties. But, if the contents unexpectedly fell out of the box, jerking your right arm forcefully before the pop, then the incident might be considered a compensable accident.

One major exception to the narrow definition of a compensable accident involves injuries to your neck and back [technically called your spine, which has three segments: cervical (neck), thoracic (mid-back) and lumbar (low-back and tailbone).]

Specifically, if you suffer an injury to your neck or back while performing your job duties, and such arose from a specific traumatic incident, then you likely sustained a compensable accident, although you were doing your normal work activities and nothing unexpected occurred, except perhaps the fact that you unfortunately got hurt. So, the take-a-way is that it is far easier to show that an on-the-job injury was due to a compensable accident if it arose from some incident, or a series of incidents, that caused specific trauma to your neck or back.

For injuries to body parts other than the neck and back, there are limited exceptions that may give rise to a compensable claim absent a pure accident, so to speak. However, such claims involve a more detailed appreciate of the events surrounding the injury, so a legal consultation normally is required to determine if the incident facts support such. The two main exceptions involve the contraction of an occupational disease (e.g., carpal tunnel syndrome in the wrists) and instances where you get hurt because your normal job duties were interrupted by other work you were temporarily assigned to perform.

(b) The workers’ comp adjuster says that I got hurt at home or someplace else other than at work, and, to make things worse, they also act as if I do not really have an injury. Many times injured workers are simply not believed, especially if there are no witnesses to an accident and the injuries are not readily visible, e.g., you are working alone in an area of a warehouse and you hurt your back lifting boxes. Your credibility gets questioned, which leads to a claim denial.

These can be tough cases to prove, and anything and everything that supports or tends to refute your credibility is critically important. This usually starts with your employer’s perception of the situation, but also involves whether or not you had prior problems with the same body part, especially if due to prior accidents, and it can then delve into your work ethic and overall character and reputation for honesty.

(c) The insurance adjuster says that my medical condition is not related to my job, although I feel certain my work has caused it. You may believe that you have developed a medical condition as a direct result of your job duties. If so, you may then seek to prove that you contracted an occupational disease, as such is defined by the Workers’ Compensation Act. There are certain medical conditions that specifically are presumed compensable under the proper circumstances, but otherwise you essentially have to prove two things (normally based on the opinion of a competent medical professional): (1) that your medical condition is causally related to your work; and (2) that your work posed you to a greater risk of contracting the condition than someone is normally exposed in their activities of daily living outside of work. If you believe that you have contracted a medical condition or disease as a direct result of your work duties, then you should immediately consult an experienced workers’ compensation attorney.

2. I got hurt on the job and the company doctor has put me out-of-work, but I am not getting a workers’ comp check.

Normally, the employer’s insurance carrier has two-weeks after it has notice of your job accident to start paying you for wage loss, if you are disabled from your job. However, from a practical perspective, you may not get a check within that time-frame for many reasons, and it becomes frustrating, especially since you probably have bills to pay. Too often, employers do not report accidents to their insurance carriers, and, in addition, the injured worker doesn’t understand what they need to do. We believe it is best to contact a reputable workers’ compensation attorney immediately after you get hurt on the job, in order to learn what steps you need to take to protect your rights and to start the claim process. A reputable and competent workers’ compensation attorney should offer a no-charge consultation, so there are not economic barriers to you learning about your rights and obligations.

Most important, although there are some practical exceptions, you are required by law to report your accident in writing to your employer within thirty (30) days of the accident date.

Typically, any reasonable report of the accident that is documented with the employer in some written form satisfies this requirement. However, if you fail to meet this requirement but can otherwise show the employer had clear notice of your accident, then often your claim will not be barred because of such failure. Nevertheless, it always is best to confirm notice of your accident to the employer with some form of written documentation, which simply could include a company incident report or perhaps a medical note from the physician to whom the employer sent you for medical treatment after the accident.

3. I am receiving a weekly comp check but I do not think I am getting paid enough.

You are entitled to receive two-thirds (66 & 2/3rds %) of what is determined to be your properly calculated average weekly wages (AWW) as of the accident date. Although the Workers’ Compensation Act provides for several, potentially alternate methods to calculate such AWW, the initial method is to take the total of your earnings (wages, salary, bonuses, overtime pay, etc.) for the 52 weeks immediately prior to your accident date and divide such amount by 52 weeks, which would provide the AWW. [Note: If you were out of work during the subject period for any period of eight (8) days or more, then such week/day periods would be subtracting from the 52 weeks before the total earnings then would be divided by the remaining number of weeks/days to obtain the proper AWW.]

It is possible that the employer and/or the insurance adjuster has calculated your AWW simply based on your base pay or by merely taking your hourly pay rate and multiplying such by a set number of weekly work hours, and thereby it has not included any overtime or bonus pay during the relevant period. The employer, its insurance carrier, or claims administrator is required to complete a form (Form 22) which provides the necessary information upon which your AWW should be calculated. However, very often the Form 22 is not completed properly, if at all, and only an estimate of your AWW is used to calculate your weekly wage indemnity benefits (i.e., your weekly workers’ comp check amount).

Nevertheless, sometimes the AWW estimate is greater than your properly calculated AWW, which means that you probably are getting overpaid and may face the employer receiving a credit by it deducting any overage from future wage indemnity payments. Accordingly, we recommend that you seek to determine your proper AWW as soon as possible after your accident. This is one of the first tasks we complete when we are hired to represent an injured worker, because it is a key component of their workers’ comp claims.

4. I am out-of-work with my work comp check on, but I do not think I can go back to doing my regular job.

In addition to being in one of the most frustrating, if not frightening, situations as an injured worker, you probably are facing one of the most problematic scenarios in the realm of workers’ compensation.

To help you understand the relevant issues involved, please see the article on our website entitled A Practical Framework: Proving Disability under the Workers’ Compensation Act. The article provides a plain-English discussion of how an injured worker must prove initial and on-going disability, especially when they can’t do their prior job, in order to be entitled to wage indemnity.

5. I am not getting the medical care I believe I need for my accident injuries.

Generally speaking, you are entitled to reasonable and necessary medical evaluation and treatment which either will tend to heal your injuries, provide symptom (pain) relief, or lessen your work disability. However, with very limited exception, your employer and its workers’ compensation insurance carrier or claims administrator has the right to direct you to medical professionals they select. You do retain the right to seek an independent evaluation as well as certain, reasonable treatment from medical professionals you personally select, but such separate care may not interfere with the care provided by the employer- selected professionals. Most important, the care you seek privately may not replace the employer- selected care, unless you get the approval for such from the Industrial Commission or the employer otherwise agrees.

In light of the above, there are rules and procedures in place that allow for the injured worker to seek approval from the Industrial Commission to have certain medical care authorized and paid for by the employer. Likewise, however, the employer often has the ability to send you to new and different medical professionals when it becomes concerned about the care being provided by initially selected professionals. Such concerns can involve care issues which you may also be worried about, or, such could actually involve the employer attempting to navigate your care in a certain direction, so to speak, which the Industrial Commission potentially may find unreasonable.

Many of our clients primarily hired us to help them get medical care they believe was reasonable and necessary to evaluate and treat their accident-related injuries but which the employer, its insurance carrier, or claims administrator had refused to authorize. Ultimately, this can be one of the more contentious areas in workers’ compensation, so it is of paramount importance to hire an attorney who is well-versed with the applicable medicine, familiar with your treating medical professionals, and dedicated to your cause.