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Frequently Asked Workers' Comp Questions
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Usually, workers’ comp lasts until job injury victims reach maximum medical improvement (MMI). Basically, MMI means further medical treatment won’t improve the victim’s condition. If Adam breaks his shoulder at work, he may permanently lose some range of motion in that joint, no matter how much treatment he receives. He may also be at risk for frozen shoulder and other more serious maladies, once again no matter how much treatment he received.
However, many states limit workers’ compensation benefits to under two years. When that period expires, many victims haven’t reached MMI and they don’t qualify for permanent disability payments. That’s a pretty bad place. Workers’ compensation length also depends on whether victims can choose their own doctors. Company doctors often quickly apply the MMI tag and cut off workers’ compensation benefits.
Types of Workplace Injuries
So far, we’ve focused on workplace trauma injuries, like falls. Most workers’ compensation claims are based on such injuries. Falls are also common at construction sites. Year after year, construction is at or near the top of those “most dangerous jobs” lists. Other trauma injuries, especially at construction sites, include caught between, electrocution, and struck-by injuries.
Incidentally, offshore workers, like fishers and energy exploration workers, are usually at or near the tops of those lists as well. Generally, these trauma injury victims have almost no immediate access to medical help.
Workers’ compensation benefits also apply to occupational diseases. These conditions develop over the course of more than one work shift.
Hearing loss is a good example. This condition is the most common occupational disease in the United States. If doctors intervene quickly enough, this condition is treatable. Any undue delay usually means the only option is risky and radical surgery to repair or replace the eardrum.
Such occupational diseases are also subject to the MMI rule, at least in most states. If Mary’s hearing is badly damaged, she may never hear things normally again, despite the best efforts of medical professionals.
Extending Workers’ Compensation Benefits
As mentioned, many doctors try to pull the plug too early. Attorneys intervene in these situations to keep the money flowing, so victims can keep getting therapy and keep improving.
The aforementioned disability determination may also come into play. If workers’ comp benefits end before victims reach MMI, insurance company lawyers typically argue that, based on their medical conditions, these victims aren’t entitled to permanent disability benefits. However, a “disability” is more than a medical term. This D-word also has educational, vocational, and other implications. Attorneys make such arguments in Administrative Law Judge appeal hearings.
In 2020, the total cost of job injury claims, mostly workers’ compensation benefits, exceeded $160 billion. These claims are so expensive that insurance companies will do almost anything to reduce these costs. Frequently, job injury victims unwittingly do some things, or don’t do some things, that help insurance companies reduce these costs. That means lower benefits for injured workers and their families.
Briefly, workers’ compensation is no-fault benefits that replace lost wages and pay medical bills connected to a job-related illness or injury. These victims don’t have to prove fault. However, they must prove the full extent of their losses. Any mistake during the claims process makes it almost impossible to meet this burden of proof.
Don’t Assume the Insurance Company Will Pay
First and foremost, never assume the insurance company will do the right thing and pay the claim. As mentioned, workers’ compensation claims are very costly. Insurance companies, like most other companies, are mostly interested in making money. They care little or nothing about the welfare of individual workers, especially since these workers don’t pay monthly premiums.
Don’t Do Normal Things
Overall, most lawyers suggest that recovering job injury victims do not do anything “normal.” If you normally pick up your children after school, make alternative arrangements. If you normally do the family grocery shopping, delegate that task to someone else. During initial reviews, Claims Examiners often ask about such items. If a victim is able to do everything except work, that omission looks suspicious. As far as many Claims Examiners are concerned, the mere suspicion of fraud is tantamount to fraud itself.
On a related note, when job injury victims appear at Claims Examiner hearings, we usually suggest they look injured. Act as if you’re having a bad day, even if you’re having a good day. To some extent, we all make judgments based on appearances. That’s a very bad habit, but that’s just the way it is. Something as simple as using or not using a cane could make a difference in a close case.
Don’t Disobey the Doctor
Also before the Claims Examiner hearing, follow a doctor’s instructions to the letter. This step is not as easy as it sounds, especially in some states. Many job injury victims must see company doctors, or doctors that have the company’s approval. Additionally, in some states, job injury victims are not entitled to second opinions.
Even in these states, a workers’ compensation attorney can usually set up an IME (independent medical examination), which is tantamount to a second opinion. Typically, IME doctors charge nothing upfront for their professional services.
If job injury victims disobey a doctor’s instructions, even if the instructions seem wrong, the victim might as well rubber-stamp the claim as “denied.”
We cannot stress this enough. An initial denial does not mean your claim is weak or meritless. So, do not figure that something is better than nothing and accept a low-ball settlement offer. Instead, turn your case over to your attorney and let your lawyer work for you.
In some cases, a workers’ compensation settlement is just around the corner. Most states have strong bad faith insurance laws. These companies act in bad faith when they refuse to pay valid claims. It’s also bad faith to delay an investigation or rubber-stamp a claim as “valid” or “invalid.” So, if the issues are clear, most workers’ compensation insurance companies must settle claims within a few weeks. However, as outlined below, the issues in a workers’ compensation case are seldom clear.
Therefore, most claims must go through all, or most of, the workers’ compensation process. This process begins with an injury report. Next, a Claims Examiner reviews the paperwork in the case, mostly the medical bills, and makes a decision. Most Claims Examiners deny most workers’ compensation claims, at least in part. When the case reaches the Administrative Law Judge appeal stage, an attorney has a better chance to clear up lingering issues and settle cases on favorable terms.
Medical Bill Issues
Most states require workers’ compensation insurance companies to pay all “reasonably necessary” medical bills. Unfortunately for victims, many insurance adjusters don’t use the facts of the case to decide what’s reasonably necessary.
The first workers’ compensation systems appeared around 1910. Since so much time has passed, more companies now evaluate medical bills like football coaches scout opponents. If a team has always run to the right on third and short, it’ll probably run to the right again. In the past, if X injury cost Y dollars in Z location, it’ll probably cost X dollars again.
The facts of the case could change any of these calculations. For example, if Mike sustains a serious trauma injury at work and all the trauma centers in Z location are full, Mike must go somewhere else.
Incidentally, workers’ comp settlements not only cover doctor bills. They also cover related expenses, such as emergency transportation, medical devices, and prescription drugs.
Lost Wage Replacement Issues in Workers’ Comp Settlements
Current lost wages are relatively easy to determine. However, some insurance company adjusters keep a thumb on the scale, so an attorney must be vigilant.
Future lost wages are different. Let’s go back to Mike. Assume he sustains a serious trauma injury, like a fall from a height, that causes significant loss of mobility. When it comes to future lost wages, a company doctor might approve nothing, reasoning that Mike can tough it out and work full speed. Another doctor might say that Mike must limit his work hours and activities for the rest of his life. That’s a very big difference.
The answer to this question depends on the nature and extent of the disability. Most people recover from neck injuries, if doctors are aggressive enough. Whiplash is a good example. This head-neck injury is very common in car crashes, even in parking lot fender-benders. It doesn’t take much force to jostle the neck and damage the nerves. Since whiplash is a soft tissue injury, X-rays and other diagnostic tests don’t detect it. Left untreated, the neck soreness associated with whiplash quickly becomes neck paralysis.
Other neck injuries, like repetitive stress injuries, occur slowly and over time. Most people don’t run to see doctors as soon as they wake up with stiff necks. RSI delayed treatment, like whiplash delayed treatment, usually has grave consequences. These permanent disability workers’ comp neck injury settlements are usually higher. The settlement compensates a victim for prior lost work and medical bills, as well as future lost work and medical bills.
By the book, workers’ compensation pays two-thirds of lost wages for job injury victims. But insurance companies threw out the book a long time ago.
Instead of the AWW (average weekly wage), most insurance companies use set formulas to determine benefits. For example, a neck injury means X weeks off work, and based on the victim’s average income, that means Y dollars. The X and Y calculations are both off.
Assume Ron is in a fender-bender collision as he makes his deliveries. He sees a company doctor, who tells him to rest for about a week and then go back to work. If Ron has whiplash, and he probably does, he’ll need more than a week’s rest. In other words, not all neck injuries are created equally.
Now assume, as is usually the case, the insurance company only uses Ron’s past income to calculate his AWW. If Ron has part of a prorated signing bonus coming his way or he’ll miss overtime opportunities, his AWW must reflect these future losses.
Neck injuries aren’t usually completely debilitating. Most people can work, even with serious, lingering neck injuries. Truthfully, most victims want to work in these situations.
However, a temporary neck disability often limits work hours and work activities. That’s especially true if the victim has a bad day. So, to make up for future lost wages, workers’ compensation neck settlements usually include lump sum payments. These payments also include compensation for future medical bills.
The settlement negotiation process usually takes a while. A good negotiating rule of thumb is to always reject the first offer. The second, third, and fourth offers usually aren’t much better. So, it’s important for neck injury victims to trust their lawyers, see things through, and not lose heart. Otherwise, they often end up settling for less.
The answer to this question varies significantly among different insurance companies and in different states. The most reliable drug tests are also the most expensive ones, and we all know how stingy insurance companies feel about spending money. Additionally, some drugs are legal in some states, but not others. As of November 2023, about a dozen states, mostly in the West and Northeast, have legalized recreational marijuana.
Very few states require injured workers to take drug tests. Workers’ compensation is no-fault insurance. Thus, strictly speaking, if the injury was work-related, it doesn’t matter if the victim was clumsy, high, or anything else. In fact, the Occupational Safety and Health Administration forbids drug testing in these situations, if the employer requested the test to retaliate against the employee.
Nevertheless, some states require them. Taking drugs is a pre-accident choice. Additionally, some insurance companies flatly don’t pay benefits in these situations. Some of the most common workers’ compensation drug tests are outlined below. Even the weaker ones are almost impossible to “beat,” unless the employee cheats.
These tests are usually only available for alcohol and, in a few cases, marijuana. Breathalyzers indicate current impairment but not past use. Not many employers use these tests, partially because they’re so limited, and partially because most employers don’t have spare Breathalyzers laying around the office.
Peeing into a cup is the cheapest, most effective, least invasive, and most common type of drug test. It’s also the only kind of drug test that federal law approves of.
Alcohol and most other substances linger in urine for about twelve hours. So, unless job injury victims take urine tests almost at the same time as they report their injuries, the tests are completely unreliable. A later test only proves the victim was high, not that the victim was high at the time of the injury.
These tests, which are also called oral tests, are almost as cheap, reliable and non-invasive as urine tests. Usually, an FDA-approved technician swabs the victim’s mouth. So, it’s very difficult to cheat on this test. The lookback period is a little longer as well. Most saliva tests detect most substances for up to forty-eight hours.
Swab tests also have additional moving parts. The technician, not the employer, sends the sample to a lab. Therefore, a lawyer can challenge a positive result based on the slightest irregularity. Generally, where there’s smoke, there’s fire.
In some ways, hair tests are the most reliable drug tests. They detect almost any drug, including prescription drugs. Most hair tests also have ninety-day windows. Additionally, a technician usually plucks a hair. These two things together make it almost impossible to cheat.
In other ways, hair tests are the least reliable drug tests. At best, they’re about 50 or 60 percent accurate. The accuracy rate for some substances, notably amphetamines and methamphetamines, is substantially lower. As a result, at appeal hearings, workers’ compensation lawyers almost always convince Administrative Law Judges to throw out these test results.
Workers' Comp Settlement Chart
|State||Arm||Leg||Hand||Thumb||Index Finger||Middle Finger||Ring Finger||Pinky||Foot||Big Toe||Eye||Ear||Testicle|
|Alaska||106200||70800||95580||40710||19470||19470||8850||8850||44250||8850||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
|California||190603||92583||153483||42050||14645||14645||6090||6090||48140||6090||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
|Colorado||162869||162869||162869||13852||7203||4987||3047||3601||81436||7203||NOT AVAILABLE||9696||NOT AVAILABLE|
|District of Columbia||342305||315973||267700||83382||51199||33645||27794||17554||225277||42422||175541||57051||NOT AVAILABLE|
|Florida||186293||110513||163559||42311||14525||14525||6315||6315||65045||6315||49889||NOT AVAILABLE||NOT AVAILABLE|
|Idaho||113685||75790||102317||41685||26527||20842||9474||5684||53053||15916||66316||NOT AVAILABLE||NOT AVAILABLE|
|Kentucky||402277||402277||402277||195670||81375||81375||24042||24042||212683||24042||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
|Louisiana||126000||110250||94500||31500||18900||12600||12600||12600||78750||12600||63000||NOT AVAILABLE||NOT AVAILABLE|
|Maine||199692||159605||159605||48253||28209||24498||16332||11878||120261||24498||120261||NOT AVAILABLE||NOT AVAILABLE|
|Michigan||220580||176300||176300||53300||31160||27060||18040||13120||132840||27060||132840||NOT AVAILABLE||NOT AVAILABLE|
|Montana||120360||92040||111864||67968||50976||50976||42480||42480||70800||42480||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
|Nevada||859634||457418||738967||136011||68006||68006||30912||30912||216088||30912||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
|New Hampshire||294840||196560||265356||106704||65988||53352||26676||12636||137592||25272||117936||42120||NOT AVAILABLE|
|New Jersey||268983||256757||163391||22230||14820||11856||8892||5928||136344||11856||102600||13680||NOT AVAILABLE|
|New Mexico||152836||152836||95523||42030||21397||16812||12991||10699||87881||26746||99343||30567||NOT AVAILABLE|
|New York||252299||232891||197311||60649||37198||24260||20216||12130||165773||30729||129384||48519||NOT AVAILABLE|
|North Carolina||220880||184000||184000||69000||41400||36800||23000||18400||132480||32200||110400||64400||NOT AVAILABLE|
|North Dakota||148800||74880||108800||20800||12800||9600||6400||5120||48000||9600||48000||NOT AVAILABLE||NOT AVAILABLE|
|Rhode Island||56160||56160||43920||13500||8280||5400||4500||3600||36900||6840||28800||13500||NOT AVAILABLE|
|South Dakota||141000||112800||105750||35250||24675||21150||14100||10575||88125||21150||105750||35250||NOT AVAILABLE|
|Tennessee||309096||206064||278186||118487||56668||56668||25758||25758||128790||25758||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
|Texas||108360||72240||97524||39732||19866||19866||9030||9030||45150||9030||43344||NOT AVAILABLE||NOT AVAILABLE|
|Utah||98549||65875||88536||35309||22134||17918||8959||4216||46376||13702||63240||NOT AVAILABLE||NOT AVAILABLE|
|Vermont||290871||193914||261784||111501||53326||53326||24239||24239||121196||24239||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
|West Virginia||127661||127661||106384||42554||21277||14894||10638||10638||74469||21277||70213||47873||NOT AVAILABLE|
|Wyoming||90581||60387||81523||34723||16606||16606||7548||7548||37742||7548||NOT AVAILABLE||NOT AVAILABLE||NOT AVAILABLE|
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