Monday, 3 June 2013

Workers' Compensation Attorneys Can Help You Determine Your Eligible Benefit Payments

One area of the workers' compensation claim process that is not well known is that when an employee is injured on the job, the employee must prove that he/she is entitled to and is eligible to receive workers' compensation benefits. Since the initial burden of proof of eligibility is on the injured worker, an experienced workers' compensation attorney can provide extensive assistance in compiling the necessary information at the very beginning of the claim process and making timely submittals.
In general, the items that must be proved in filing a workers' compensation claim include, but are not necessarily limited to:
  • That the injured employee notified the employer of the accident or injury within the time limit set by law.
  • Showing that the employer was and was required to be covered under the Workers' Compensation Act on the date of the accident.
  • That the medical conditions for which benefits are being claimed was caused or aggravated by the on-the-job accident.
  • That the injured was employed by the employer when the injury occurred. This is especially important for independent contractors.
  • That the injuries were sustained while performing authorized work for the employer.
As with any program in which potentially large sums of money may be paid out, significant disagreements over initial level of eligibility or the continuation of eligibility can arise even after the initial proof of claim is properly documented and submitted.
Eligibility for initial or continuing benefits may be disputed over issues regarding, but not limited to:
  • The type and severity of the injuries or disability
  • The extent to which the employee's claimed work restrictions are related to the claimed injury
  • If the prescribed treatments were justified/required
  • The submitted costs of treatment, therapies and medications
  • If or if not the employee can perform his/her former job and what work is the employee capable of performing
  • Terminated benefits and/or termination from employment
Providing counsel and expertise to resolve these and other areas of dispute is where a workers' compensation lawyer can be of invaluable assistance. It is in any employee's best interest to retain an experienced workers' compensation attorney to advise and help the employee through the claim. A workers' compensation lawyer is the advocate who has the expertise to help obtain the benefits to which the employee is legally due.

History of Workers Compensation

Workers compensation provides payment to workers who are injured on the job. To break that down, it is a type of insurance that protects against the risk of an on-the-job injury making the worker unable to continue working and gain an income. Employers are taxed in order to create a guaranteed fund of money that worker's compensation benefits can be paid from. This ensures that there are always benefits available to qualifying individuals.
Workers Compensation from the Beginning
Employee benefit systems similar to worker's compensation have been found in ancient Rome, Greece and China where there were pre-determined payment schedules for workers who lost various body parts during the course of their labor. Throughout history, systems like this have existed but they did not exactly mirror the type of worker's compensation benefits employers now must offer.
Most historians place the origins of modern worker's compensation in Germany in the mid-1800's. During the height of the industrial revolution, Germany's government passed legislation that would protect railroad workers in the event of an on-the-job accident or injury. They were following the example of German worker guilds which provided certain benefits (including a disability payment benefit) to the guild members. As a socialist country, Germany was very concerned about offering social insurance programs and this model of worker's compensation fit nicely.
In the 1880's Workers' Accident Insurance, a compulsory plan to provide for workers outside the railroad system who had had an accident on the job, was introduced. This was the first universal and formalized worker's compensation plan.
Workers Compensation Progress through the Years
Workers' Accident Insurance spread through Europe during the late 1800's, though it was often called Workmen's Accident Insurance, and by the 1890's it had replaced England's court run Employer's Liability Act.
By the turn of the century, America had its own workers compensation plan in place with Maryland as the first state to adopt it. Unfortunately, the early plans in America placed a great burden on the injured employee. Instead of just showing the injury and receiving a benefit, the employee had to provide proof that he or she had been injured as a result of employer negligence. Then, after obtaining some sort of proof, the employee had to sue the company in order to be awarded benefits. While this protection was better than no protection, proving their case was difficult and many workers went through the time and expense of a court proceeding without ever receiving a benefit. By 1908, President Theodore Roosevelt stepped in and pointed out the one-sidedness of the present system.
Soon after, in 1911 to be exact, the state of Wisconsin adopted a new workers compensation law that allowed for a tradeoff between injured employee and responsible employer. Rather than forcing the employee to find the proof of the employer negligence and sue, the employer would automatically provide medical care and replacement wages to injured employees. But here is where the tradeoff came in; as a result of the benefits, the employee had to agree not to sue the employer for further damages. While we might credit President Roosevelt with this abrupt change of pace, the reality is more likely that the workers who were able to prove negligence under the old law and sue their employers were taking in more money for damages through lawsuits than employers might have to pay when taking care of the wages and medical expenses of every claimant. In addition, even the lawsuits the employers won had a price since they still had to take the time to defend themselves and had to bear the expense of legal counsel.
The one state that held out of the new form of worker's compensation legislation was Florida. At that time, Florida had a very small population and no manufacturing jobs. But when Florida politicians decided to try and attract new residents and businesses to the state in 1935, they were forced to adopt the new worker's compensation model.
The new model of worker's compensation-the one in which workers give up their right to sue in exchange for a fixed medical and wage benefit-is still the most beneficial system to both businesses and employees. The money saved in costly legal fees, time saved in court battles and proving employer negligence is substantial and the positive image and reputation of an employer that pays claims willingly rather than fighting against injured employees is valuable beyond measure.

Workers' Compensation Insurance - What Employers Should Know

All U.S. employers, with very limited exceptions, are required to purchase Workers' Compensation insurance. This state-regulated insurance provides state mandated medical and lost wage benefits to employees injured during the course and scope of their employment.   Exceptions to purchasing this mandatory insurance include very small companies that do not meet the number of employees requirement, or in some cases, very large companies that prefer to self-insure this risk. An employer's failure to comply with a state's requirements will trigger economic penalties and possible criminal prosecution.  A variety of Workers' Compensation insurance programs are available from the employer's risk finance perspective.
Exclusive Remedy & Employers' Liability
Although each state's regulations differ, they all share a common purpose. They provide an "exclusive remedy" in the form of a "no-fault" program for compensating employees in the form of medical benefits and lost wages in connection with injuries that arise in the course and scope of their employment. While Workers' Compensation insurance responds to the "no-fault" consequences of workplace injury, Employers' Liability insurance, which is typically joined with Workers' Compensation policies, provides coverage for common law claims against the employer by the employee, their family or third-parties, if the claimant or plaintiff can meet the legal standard in their jurisdiction for establishing that the injury was caused by the employer's negligence, gross negligence, recklessness or willful conduct.
The Broad Landscape of Special Funds and State Programs
Many states provide special funds to pay workers' compensation benefits to injured workers employed by companies that failed to purchase insurance. Assigned risk pools or insurers of last resort are also available for employers that commercial insurers consider too risky.
Monopolistic States
There are currently four monopolistic states: Ohio, North Dakota, Washington and Wyoming. Puerto Rico and the U.S. Virgin Islands also operate under a monopolistic structure. These states legislated requirements that Workers' Compensation insurance be provided exclusively by the state's compulsory program. Commercial insurers may not offer Workers' Compensation insurance in those four states, yet at least two of the states do allow limited opportunity for self-insurance for well-capitalized employers.
Competitive State Funds
In contrast to monopolistic state programs, Competitive State Funds are state-owned and operated insurance facilities that compete in the open market with commercial insurers to underwrite Workers' Compensation insurance solely within their respective state.
Arizona, California, Colorado, Hawaii, Idaho, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Montana, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, and West Virginia operate Competitive State Fund programs.
Second or Subsequent Injury Funds
In most states it's illegal for an employer to refuse to hire a prospective employee or terminate an employee if they have previously filed a workers' compensation claim.  To reduce the possibility of this form of discrimination, some states established a Second Injury or Subsequent Injury Fund. The purpose of these funds is to limit an employer's (and their Workers' Compensation insurer's) exposure by reimbursing or covering the Workers' Compensation benefits paid because of an aggravation or recurrence of a previously existing injury. Reimbursement eligibility requires that the injury must result from a qualifying permanent partial pre-existing disability, illness or congenital medical condition that may hinder person from obtaining employment.
Insurance Premium Calculation - The Loss Experience Mod Factor
This is a complex and often misunderstood concept that has a major effect upon a company's Workers' Compensation insurance premiums. On a general level, it is essentially a comparative analysis of your company's Workers' Compensation loss history for the prior three years against companies within the same or similar industries.
The standard Experience Mod, which is explained below, is calculated by the National Council on Compensation Insurance (NCCI). Employees are classified by standard identification codes depending upon their occupation. Depending upon an employer's size and diversity of operations, many classification codes may be involved in the analysis.
Simply stated, the neutral point in the rating curve is 1.0. If a company's Experience Modification Factor ("Mod") is greater than 1.0, the employer is issued a "Debit Mod" meaning the premium will be increased by a certain mathematical factor. Alternatively, if the loss history is better than expected or lower than 1.0, the employer receives a "Credit Mod" factor that will decrease the Workers' Compensation premium.
A Premium Calculation Illustration  Using a simple example, suppose the employer only has one classification code for all employees, all of whom work in the same state, and the Workers' Compensation expected loss rate or base premium rate (as established by the state in which the company's employees are located) is $3 for every $100 of payroll.
If the employer has a Mod factor of 0.70, the premium will be calculated as 0.70 x $3 = $2.10. This means the employer is paying $2.10 per $100 of payroll, while its competitor peer group, on average, is paying $3 per $100 of payroll.
Assume the annual payroll for this employer is $2 million, the result is the employer would pay $42,000 in premium versus its competitors with a Mod of 1.0 paying $60,000 for the same coverage. Conversely, if the employer in this example had a Mod of 1.5, the premium would be 1.5 x $3= $4.5 per $100 of payroll. Using the same $2 million annual payroll, the employer in this case would pay $90,000 in annual premium while competitors with a 1.0 Mod would be paying $30,000 less for the same coverage. It's easy to appreciate how these Credit or Debit Mods will have a significant impact upon a company's bottom line, particularly as annual payrolls reach significant levels.
Many factors go into the actual calculation of a Mod including the company's loss frequency (number of losses), loss severity (the cost of the losses), and an estimate of losses that are characterized as Incurred But Not Reported (IBNR), meaning expected losses that have not yet materialized into actual workers' compensation claims.
Medical-Only vs. Lost-Time Claims
When calculating an experience Mod, Medical-Only claim reserves are generally factored at about 30% of ultimate value. Lost Time or Indemnity claims are treated very differently. The literature on calculating experience modification factors states that the first $5,000 of a Lost Time claim ultimate reserve is factored in at 100% with discounts applying above $5,000, including a catastrophic claim cap limit. Therefore, the frequency of Lost Time claims is a real driver of adverse experience. If a company has one Lost Time claim valued at $50,000, it will have less of an adverse affect upon the Mod factor than twenty Lost Time claims valued at $2,500 per claim.
The difference between how these two types of claims affect the Mod should be a strong incentive for employers to implement modified duty programs, with particular attention given to getting employees back to work during the mandatory benefit waiting period, whenever possible. This will cause the claim to be reclassified to "Medical Only" thereby reducing the multi-year adverse impact upon the company's Workers' Compensation insurance premiums.
Claim reserve management is critically important as having over-reserved claims will exponentially affect your Mod factor and correspondingly increase your premium. Having under-reserved claims is also no benefit, as the insurer's audit may result in an unexpected assessment and, of course, increased premiums going forward. Periodic reserve evaluation by a qualified professional should ensure that over-reserved cases are negotiated downward to a reasonable level and under-reserved cases are reserved properly.
Loss Prevention
Loss Prevention is the best way to keep insurance premiums in check. The process can take many forms but essentially involves identifying potential areas of work injury risk and applying techniques to eliminate or substantially reduce the risk that an injury will occur.
Identification of potential causes of risk through performance of a workplace risk assessment is the first step. This process includes critical analysis of procedures as well as physical inspection of facilities and work environments, and discussions with operational personnel and key managers.
Once the causes of potential loss have been identified, modifications can be implemented to operational and business practices in order to reduce the associated risks. The assessment process should be performed by qualified consultants, combining qualitative elements and quantitative metrics including specifications of the physical requirements of each function and the associated loss costs.
Findings should be reviewed with key stakeholders. After agreed upon modifications to operational programs and/or safety programs have been implemented, it's important to monitor results and make adjustments to the preventive measures. Periodic re-testing is important to ensure optimal results are consistently achieved as the company develops. This process has unique relevance in an acquisition scenario.
Loss Control
Loss Control is the process of reducing or mitigating the effect of losses once they occur. Similar to loss prevention safety programs, loss control should encompass well-formulated procedures to respond to various loss situations. The most common examples of loss control are obtaining immediate medical attention for injured workers and having a limited duty return to work program. Employers should conduct a post-loss analysis of the factors that precipitated the loss to determine whether modifications to the loss prevention plan are appropriate. Any post-loss control program should include a process for coordinating medical care to ensure that appropriate medical treatment is received timely so as not to exacerbate a condition while managing medical costs to avoid any unnecessary expenses. Additionally, developing a close working relationship with insurers to deal with potentially fraudulent claims, and implementing an early return to work or modified return to work program all factor into keeping losses at their lowest possible level.
OSHA Focuses On Ergonomics
The Occupational Safety & Health Administration ("OSHA") publishes a variety of guidelines on the topic of workplace ergonomics for various industries and jobs. OSHA has announced plans to heighten its enforcement of ergonomics under the General Duty Clause which requires employers to "...keep their workplaces free from recognized serious hazards, including ergonomic hazards."
OSHA Enforcement has stated:
Even if there are no guidelines specific to your industry, as an employer you still have an obligation under the General Duty Clause, Section 5(a)(1) to keep your workplace free from recognized serious hazards, including ergonomic hazards. OSHA will cite employers for ergonomic hazards under the General Duty Clause or issue ergonomic hazard letters where appropriate as part of its overall enforcement program. OSHA encourages employers, where necessary, to implement effective programs or other measures to reduce ergonomic hazards and associated musculo-skeletal disorders ("MSDs"). A great deal of information is currently available from OSHA, NIOSH, and various industry and labor organizations on how to establish an effective ergonomics program, and OSHA urges employers to avail themselves of these resources.
Workers' Compensation costs have a direct bottom line effect upon all enterprises. Managing those costs to the optimally lowest level requires operational risk assessment, planning, education, an effective return to work program, continual evaluation and active management of loss reserves and third party claims administrators. Experienced insurance professionals are an employer's best resource for minimizing the adverse effects of work-related injuries upon profitability.
The author, James J. Ilardi, CPCU, is a Chartered Property and Casualty Underwriter and President of SECURA RISK GROUP, LLC.
SECURA RISK GROUP is an independent commercial insurance brokerage and advisory firm specializing in the evaluation, design and procurement of commercial insurance policies and insurance programs for privately held enterprises, publicly traded companies, non-profit organizations and professional service firms. Licensed by the New York, New Jersey, Connecticut and Michigan Insurance Departments.

Worker Compensation Attorneys

Whenever an employee gets injured in the workplace, they can avail themselves of the services of a workers' compensation attorney who can help them in the litigation process.
The first step an injured employee needs to take is to file a workers' compensation report. Workers' compensation attorneys aim to get a greater compensation for the injured employee.
Most workers' compensation attorneys advise employees to inform their employers every time they get injured in the workplace, however minor the injury may be. Such injuries may result in serious complications later on, so if they do not file them early on, it may be more difficult for the employees to seek compensation.
In cases when the employee suffers from permanent disability, the services of a workers' compensation attorney become more necessary. This is especially true when the employer refuses to give financial assistance to the employee. The workers' compensation attorney should be the one to inform the employee of his or her rights and assist him or her in speeding up the litigation process. Workers' compensation attorneys usually get 10-15% of the total compensation received by their client.
For people who are seeking workers' compensation attorneys, they are advised to first ask around. Some employees who had fruitful experiences with certain attorneys can give good referrals. It would also be good to ask other employees who have undergone a workers' compensation litigation process to have an idea of the requirements and processes of such a lawsuit.
Aside from work-related injuries, workers' compensation attorneys can also help employees who have become victims of harassment due to sex, age, or religion. These attorneys are also aware of federal laws that protect employees from unlawful discrimination.
In most cases, workers are advised to get their own workers' compensation attorney. Insurance companies or their employers are more likely to employ the services of a workers' compensation attorney too. This way, workers can be better assured of getting the maximum amount due to them because the attorney working for them is not, in anyway, connected with their employer or the state.

Tutorial on Workers' Compensation

Whether you're starting a new business or already in an established business, you need to know the basics of workers' compensation insurance. Almost every business that has employees other than the owner is required by state law to carry workers' comp. But you need to be careful in choosing a policy. The fact is many insurance companies can get remarkably tricky when it comes to writing policies - in their bag of tricks are such ploys as classifying the type of work your employees do incorrectly, miscalculating so-called modification factors, and making a variety of other types of mistakes which, oddly enough, result in insurance costs to you that are higher than they need to be.
Beyond needing to hold your own against your workers' compensation insurance carrier, there's another reason to take a few minutes to learn more about this type of insurance, namely, fraud. Workers' compensation fraud is the second largest category of white-collar fraud in the United States today, second only to income tax evasion. According to industry observers, fraud occurs in almost a fourth of all claims. It can take the form of employee fraud (an employee who's been in an accident claiming to be injured more seriously than he/she really is), employer fraud (harassing employees who put in claims or trying to deceive the insurance company regarding the number of the company's employees), or insurance company fraud (wrongfully denying legitimate claims).
In many businesses, such as manufacturing and construction, workers' comp is a major expense item - and also a major source of friction and confusion. But most business owners know little or nothing about how it works or how rates are calculated. It's too complicated to cover in detail here, but I'll try to touch upon most of the basics in this brief article.
Basics of Workers' Compensation
If you are in the type of business that is mandated by state law to purchase workers compensation benefits, this is something to take seriously. In some states, notably Florida and California, businesses are getting shut down and owners prosecuted criminally for failure to carry this type of insurance. In most states you need it if you have one or more employees - California being one of the few that requires it even for one-person businesses.
In most states you can purchase an insurance policy from a workers' comp insurance company; however in five states (OH, ND, WV, WA, WY) you must obtain coverage through that jurisdiction's state-operated fund. These state operated funds are called "monopoly state funds."
Note that thirteen states maintain state funds which compete with private insurers. So in those thirteen, you can buy your policy either from a private insurance company or from the state fund (CA, AZ, CO, MD, ID, MI, MN, MT, NY, OR, OK, PA, UT).
If for some reason your business is found to be especially risky, you will have to get your insurance from a so-called "assigned risk" fund, and it costs considerably more. Workers' compensation is regulated primarily by the states (and Washington DC) so there are 51 separate sets of rules which govern benefits, premiums, and coverage. However, a so-called "rating bureau" called the National Council on Compensation Insurance (NCCI) has developed a manual used by many states to regulate how insurance companies calculate your rates. NCCI states rely almost completely on this manual, while some other states have developed their own manuals. For example, Nevada sticks closely to the NCCI manual, whereas California has developed its own manual.
Workers' comp policies tend to seem complicated and abstruse to the uninitiated. In addition, you can't rely entirely on your insurance agent to decipher the technical terms, options, and requirements - remember, he/she has a vested interest in selling you as expensive a policy as possible. So if your premiums turn out to be fairly considerable, it's a good idea to have your policy reviewed by a lawyer with workers' comp experience or a consultant specializing in this field.
For example, do you need a guaranteed-cost policy (a policy whose premiums remain the same no matter how many claims you file) or a loss-sensitive plan? The latter alternative will cut your costs but increase your exposure.
The basic formula nearly all insurance companies utilize to calculate your policy is to multiply a rate times hundred dollars of payroll. But what is this "rate"? Where does it come from? It is based on the classification of your company's type of work performed. It's always to your advantage to be in a relatively "safe" classification, such as clerical work, as opposed to a more injury-prone classification, such as construction. Experts warn that you should be vigilant that the insurance agent does not mis-classify your company - such a "mistake" can easily double your premiums.
What's more, insurance companies inevitably apply an "experience" factor to your premiums. This is a circumlocution for a multiplier calculated on the basis of your company's claims history. The more or larger your claims, the larger the experience factor.
Assigned Risk Plans Explained
So what can you do if every private insurer in your state turns down your application for insurance? In that case, you have to utilize the state's assigned risk plan. This is expensive insurance. Yet, I'm told, many agents sell assigned risk insurance without bothering to mention it's assigned, and the words "assigned risk" appear nowhere on the policy. Generally, rates and service are said to be better in NCCI states. However, even if your company is in an NCCI state you will probably get lower rates if you move to "voluntary" (i.e., not assigned risk) coverage as soon as possible.
Note that if you're in a "monopoly" state - i.e, a state where there are no private insurers and you must use the monopoly state fund - you can still get put in an assigned risk plan. You should discuss this with your agent.
Some Tips Regarding Workers' Compensation Insurance
- Your agent, working with his/her company's underwriter, decides what classification codes to utilize in developing your premium rates, as well as the various other risk factors. Reportedly, mistakes and oversights are legion in these types of policies (usually favoring the insurance company), so review your policy carefully, preferably with the assistance of a professional who has experience in this field.
- Be sure to carefully read your policy's Information Page in detail - it contains the most important details you need to check.
- You should be especially careful when your company hires independent contractors. If the independent contractor does not carry workers comp and is injured, you will be held responsible for all costs connected with the claim.
- Always make sure you indicate as named insured all legal entities which are in any way connected with your business. For example, if you own the building it's in, you should be named on your policy as legal owner of the property, as well as owner of the business.
- Also you should be aware of federal workers' comp exposures. In addition to state requirements, some federal legislation also imposes liabilities on employers. You can add coverage for acts such as the following to your workers' compensation policy by endorsement (i.e., by adding a supplement): Federal Coal Mine Health and Safety Act (benefits to miners who contract black lung disease; Longshore and Harbor Workers Compensation Act (benefits to employees injured in maritime employment); and Migrant and Seasonal Agricultural Worker Protection Act (housing and safety benefits to seasonal and migrant agricultural workers).
The NCCI Manual is not used for calculating rates in: Delaware, California, Indiana, Massachusetts, Michigan, Minnesota, New York, New Jersey, North Carolina, Pennsylvania, Wisconsin, and Texas. (All other states use it.)
If either you or a professional you hire feels that your premium rates are not what they should be, based on the rules and specifications in the NCCI Manual (or other state rating manual), your initial step should be to contact your agent, say the experts, and request changes; if this doesn't work, then you should directly contact NCCI or the appropriate state rating bureau and point out the errors in your policy as it is written.
Is your company required to pay workers' compensation benefits to illegal aliens? According to experts, the answer depends on whether the illegal alien qualifies under your state's statute as an "employee" working "in the service of" another under a "contract of hire." Thus far, Ohio and New York courts have upheld the right of aliens to receive benefits; Wyoming, Virginia, and Florida have not.
Note that only Texas, among all the 50 states, does not require employers to carry WC insurance.
About Workers Compensation Fraud
Workers' comp is a no-fault system for providing monetary benefits to injured or ill workers while at the same time shielding employers from lawsuits. But the system is wide open to fraud on a number of fronts. Employers, attempting to reduce premiums, may understate their total number of employees or misrepresent the type of work they do; workers may claim benefits they're not entitled to, for example, by exaggerating the seriousness of an injury; even insurers themselves may intentionally miscalculate premiums and this is, unfortunately, not uncommon.
Surprisingly, it's employer fraud that is the major type of workers' comp fraud. According to a recent study reported by the National Commission on State Workmen's Compensation Laws, over 13% of employers studied were operating without legally required workers' compensation insurance. In addition, others were found to be cheating the system by intentionally misclassifying or underreporting their payroll or by falsely representing employees as independent contractors.
Of course the best-known type of workers' compensation fraud - the kind most often covered by the media -- involves workers claiming disabilities that don't exist. Most insurance companies have in recent years set up internal Special Investigative Units (SIU's) to deal with this type of fraud. Claims adjusters report suspicious cases to their company's SIU's, which then use surveillance, background checks,videotaping, medical records checks and other tools to document fraud, then turn the cases over to the Attorney General for prosecution. Criminal penalties to workers trying to game the system can be extremely severe.
As an example of how the SIU investigation system works, CompSource Oklahoma not long ago investigated a female claimant who was receiving permanent total disability benefits for back injuries from a slip-and-fall accident. The company's SIU team found that while receiving these benefits she was listed on the Internet as an officer of an outdoor recreational club. Surveillance was set up and it was found that she was engaged in mountain hiking, carrying heavy items and other activities suggesting she was not disabled. Criminal charges were filed and a conviction obtained, resulting in a lengthy prison term.
The moral of the story is simply this: Don't commit workers' comp fraud. Insurance companies now employ teams of specialized investigators who will doggedly pursue a any suspicious claim and, if fraud can be proven, will press charges without any hesitation whatsoever.

15 Costly Mistakes That Could Ruin Your Workers' Compensation Claim

During more that 30 years of helping injured workers collect full workers' compensation benefits, I have seen others make common mistakes that cost them a lot of money.
I discuss 15 of these errors below.
By recognizing and avoiding these common errors, I am confident that you will be in a better position to collect more money for your claim.
To help you avoid these mistakes, I have categorized the 15 most common mistakes and present them to you.
I am confident that after reading this article, you will have a better chance of collecting full payment for your workman's compensation claim.
1. Failure to Report the Accident to Your Employer.
North Carolina law requires that a claim be reported to your employer in writing within 30 days from the date of the injury. Although in most cases you could proceed with your claim even if you do not file a written report in 30 days, these reports should be filed in writing immediately
2. Failure to File a Claim with the Industrial Commission.
North Carolina law requires that a claim be filed with the North Carolina Industrial Commission within two years from the date of the accident. In the case of occupational diseases, the claim must be filed within two years from the date the worker became unable to work With respect to occupational diseases, the filing requirements vary. Unless your employer has agreed in writing to be responsible for your workers' compensation claim, you are at risk if you fail to file a written claim with the Industrial Commission within two years.
3. Failure to Inform the Doctor of the Details of Your Accident.
If your medical records do not reflect the fact that you have been in an accident, your claim may be suspect. Insurance companies use any excuse they can find to deny your claim. The absence of any information in your medical records about your accident may give them the excuse they want
4. Failure to Keep a Job Search Log.
The worker has the burden of proving that they are unable to work as a result of a workers' compensation injury or occupational disease. One of the best ways to prove that you cannot work is to show that you have honestly tried to work but were unable to find and maintain a job.
5. Failure to Fully Inform Your Lawyer of All Facts.
Workers' compensation cases are difficult enough to handle successfully, even when a lawyer has all the facts. If you do not fully inform your lawyer concerning all facts, the good, the bad and the ugly, you severely handicap your lawyer's ability to win the case for you. Many facts which you may feel to be adverse can be successfully handled. Do not short change yourself by keeping your lawyer in the dark.
6. Failure to Fully Cooperate with All Vocational Rehabilitation Efforts.
The point at which the insurance company hires a vocational rehabilitation specialist to actively become involved in trying to find a job for you is probably the most critical point in the claims process. You should not attempt to deal with the rehabilitation process without the assistance of an experienced workers' compensation lawyer. Vocational rehabilitation counselors, in the vast majority of cases, are not on your side. It is their job to terminate your benefits, either by your becoming employed or by taking advantage of your failure to cooperate, thereby have your benefits terminated. It is in your best interests to return to work at suitable employment. You should, therefore, fully cooperate with all reasonable vocational rehabilitation efforts.
7. Failure to Accept Suitable Employment.
It is in your best interest to accept suitable employment whether at your prior job or at a new job that may be presented to you. The law does not (and should not) allow a worker to collect workers' compensation benefits if they can work. On the other hand, you are not required to accept any job that your employer or their vocational rehabilitation worker finds for you. The work must be "suitable" to you based upon your physical limitations, age, education, training, and experience. It is important to work closely with an experienced workers' compensation lawyer to help you determine whether any job offered to you is suitable
8. Failure to Anticipate That You Will Be Followed and Videotaped.
It is a mistake to assume that you will not be followed and videotaped by private investigators. Insurance companies would rather pay money to private investigators and lawyers than pay it to you. You should assume that a private investigator will be watching your every move outside of your home. They may even look inside your home.
9. Working outside Restrictions When You Return to Work.
If a doctor allows you to return to work but conditions your return to work on certain restrictions such as not lifting above a certain weight, or raising your arms above your head, you should follow these restrictions explicitly. When you return to work, there is a temptation to follow your supervisor's instructions even if those instructions would have you working in excess of the limitations your doctor imposes upon you. This is a serious mistake. Carry the doctor's written restrictions with you when you return to work and, if your supervisor tries to coerce you into working outside of those restrictions, give another copy of those restrictions to your immediate supervisor and politely tell that supervisor that your doctor will not allow you to work outside those restrictions
10. Settling Your Claim without the Benefit of an Experienced Workers' Compensation Lawyer.
It is a serious mistake to assume that your employer and its insurance company will treat you fairly. You should understand that in the vast majority of the cases, they will take advantage of you if you let them. Your employer and its' workers' compensation insurance company have on their side professionals who thoroughly know North Carolina workman's compensation law. They are looking after themselves, not you. Always seek the advice of an experienced workers' compensation lawyer before you sign any agreements.
11. To Assume That Rehabilitation Counselors Are Your Friend.
Rehabilitation counselors are working for your employer and the insurance company. They are not working for you.
12. Allowing the Employer to "Doctor Shop".
If your employer accepts your claim and agrees to pay, they do have a right to direct your medical care. However, once your medical providers have been established, they cannot switch you to another doctor without the permission of the Industrial Commission. Insurance companies like to have you seen by doctors who they can count on to "sing their song". Do not allow them to do this. If your employer or its insurance carrier attempts to switch you to another doctor, consult an experienced workers' compensation lawyer immediately.
13. Failure to Consider a Second Opinion.
The law allows an injured worker to obtain a second opinion if the worker is not satisfied with the opinion of the doctor concerning the nature and extent of your disability. You should consider asking for a second opinion. However, it is not always wise to ask for a second opinion. This decision is case specific. You should consult with an experienced workers' compensation lawyer to help you decide whether you should ask for a second opinion.
14. Assuming That the Compensation Rate Set by the Employer is Correct.
Most of the benefits you are entitled to receive from your workers' compensation claim are based upon your average weekly wage. The average weekly wage includes the gross amount of your pay before any deductions. Average weekly wage may also be increased because of certain allowances your employer may provide such as a housing allowance. Do not be short changed by settling for an incorrect compensation rate.
15. Failure to Seek Medical Care.
It is common for an injured worker, especially a male, to try to "shake it off" after an injury not get the medical attention they should have. It is not unusual for a person to have significant injuries without realizing it. If an injured worker waits several days or weeks before seeking medical attention, the claim is suspect. This delay in treatment gives the employer still another excuse to deny the claim.

Five Facts That Everybody Ought to Know Workers Compensation

Every state has workers compensation laws designed to compensate employees for work related injuries. In some states it may be called workman's compensation or workmen's compensation, but it is the same thing. While specific workers comp laws and systems vary from state to state, there are general principles applicable to all states. Here are 5 facts the everybody ought to know.
1. Not every employer is required to have workers compensation.
Every state has set a minimum number of employees that an employer has to have before the employer is required to have workers comp. The number may be one employee, but is usually 2 to 4 employees. Therefore, if you work in a very small business, your employer may not be required to have workers compensation.
Also, not every employee is always covered. Most states recognize that businesses sometimes hire "casual" employees and these employees are not covered by workers comp.
2. You do not need to prove that your employer did something wrong or was at fault.
In normal personal injury situations where you are hurt. you must prove that another person caused your injury in some way. However, to make it easier for workers to receive medical treatment and compensation for injuries suffered at work, worker compensation laws exclude proving fault. Whether an employer was is at fault or not doesn't make a difference. All that an employee has to do is prove that his/her injuries occurred while at work.
3. You must go to the medical provider (doctor, hospital, etc.) to which your employer sends you.
It may seem unfair, but your employer (or its workers compensation insurance carrier) gets to pick the medical provider that you go to for a work related injury. And, if you refuse to go to the medical provider that is chosen by your employer, you may lose your workers compensation claim.
Employers must pay the medical bills of the medical provider to which you were sent by the employer. If you want to go to your own doctor, you will probably have to pay the bill yourself.
4. Most workers compensation lawyers will handle workers comp cases on a contingency fee basis.
Most states will not allow a lawyer to charge a worker/client a flat fee to handle a workers comp case. They require workers compensation lawyers to work on a contingency fee basis which means that the lawyer is paid a percentage of the amount he/she recovers for the worker/client. If the lawyer does not recover any compensation for the worker/client, then the lawyer is not paid.
5. Lawyer fees must be approved by the Workers Compensation Commission or Board.
Every state has a Workers Compensation Commission or Board. A state may call the commission or board a different name, but its purpose is the same - to settle disputes between the employer and employee that relate to an employee's injury. As part of settling disputes, the commission or board is also required to approve worker compensation lawyers fees. Normally the fee is either one quarter (25%) or one third (33 1/3%) of the compensation awarded to the injured employee.
This is general information only. If you have any questions whatsoever about workers compensation, talk with a lawyer licensed in your state. This article may be republished, but the wording must not be changed and the author links must remain active.