Understanding Workers Compensation Rights and How to Protect Them

Transcription

1 Understanding Workers Compensation Rights and How to Protect Them Jennifer M. Zupp Norelius, Nelson, Zupp, Zupp, P.C Broadway POB 278 Denison, IA Ph Fax web site: Disclaimer: These materials are not to be considered legal advice and presence at this seminar or possession of these materials is not to be considered to form an attorney client relationship. This presentation is simply a synopsis of the speaker s individual thoughts and experiences in the worker s compensation system. Unless you have an attorney fee contract with the speaker, you are not represented by her. If any questions are asked during the seminar, any answers are not to be considered legal advice, nor should you consider the speaker to be your attorney. The speaker is sharing the information voluntarily in an effort to share insight, not to give legal advice. pg. 1

2 RESOURCES If you have a work injury you think is serious, or which is having an impact on your work or your home, or you just have questions about whether you even have a work injury, usually the last place you want to go for answers is to your employer or to the insurance adjuster handling your case. Many large employers are self-insured and pay for work comp injuries out of their own pocket, while smaller employers have work comp insurance. Usually, before the work comp insurance will pay for any claims, the employer has to pay a deductible. Accordingly, the employer and the insurance company are financially motivated to mislead you, and it happens far more often than it should. 1. Iowa Division of Worker s Compensation Ph or JOB-IOWA Janna E. Martin: Janna.Martin@iwd.iowa.gov Sharon K. Ortega: Ortega@iwd.iowa.gov Rosalind A. Darensbourg: Rosalind.Darensbourg@iwd.iowa.gov Penny Maxwell: Penny.Maxwell@iwd.iowa.gov Ann Snowgren: Ann.Snowgren@iwd.iowa.gov If you have a simple question about your work injury, or the law, you can call the Iowa Division of Worker s Compensation, sometimes called the agency and ask any of the above ladies a question about your situation. They cannot help in every situation but they can help point you in the right direction. In addition, the agency has a searchable database on its website of the decisions it has decided. You can search for cases or situations like yours and see if you think you are being treated fairly. You can learn a lot simply by reading the cases. 2. Iowa State Bar Association: Sometimes, the agency s website is down for maintenance or the cases are a little out-ofdate. If you want to research cases, you can go to the ISBA website at and click on the Practice Tools link and scroll down to the Workers Compensation Decisions link. 3. A Worker s Compensation Attorney Every worker s compensation attorney that I know who represents injured workers in Iowa has free consultations with folks and this is because most attorneys who assist folks with work injury cases handle them on a contingency basis. This almost always means that you don t pay attorney fees unless or until money is received for the case. Worker s compensation can be a complex area of the law. There are many nuances that are not clear just by reading the laws. When agreeing to have an attorney represent you, you should consider someone with experience in the area, or if you want your usual attorney, ask him or her to co-counsel the case with someone who is experienced in this type of law so that important details are not missed. pg. 2

3 pg. 3 WORK COMP BENEFITS When a person suffers a work-related injury, they are primarily entitled to three things (1) Medical benefits; (2) temporary benefits and (3) permanency benefits. WHAT MAKES UP A WORK COMP CASE In Iowa, to have a worker s compensation claim, you must be an employee and your injury must arise out of and during the course of your employment. Some folks with jobs who are hurt are not employees, but are independent contractors for another business. If you are not sure if your job makes you an employee or an independent contractor you should look into this. If you are an independent contractor, you will not be entitled to worker s compensation benefits against the employer, but, you can buy your own worker s compensation policy to protect you if you are hurt performing your duties. Whether an injury arises during the course or scope of employment is dependent upon the facts. Obviously, a situation where an individual smashes his or her hand in a machine at a packing plant is going to be covered whereas getting into a vehicle crash in a company vehicle on your way home from work, might not be. A fall in the employer s parking lot could be covered, whereas a fall in a private lot might not. Each scenario is different and it is important to know or research the law in determining whether your claim is valid. TIME TO ASSERT YOUR RIGHTS Generally, the following rules apply, but, each case can be unique for any number of reasons and it is best to check with someone about when you must act so you don t miss an important deadline. Failure to take certain actions in a certain amount of time can bar your claim forever, even if it would have otherwise been a valid claim. 1. If you have a work comp claim, and no weekly benefits have been paid (temporary or permanency) then you have two years from the date of injury to file your claim. Filing the claim must be done in Des Moines, currently, at the agency, and the filing fee is $100.00, which can be waived under certain financial circumstances. The agency has forms on its website that must be completed to file the claim. 2. If you have a work injury and the employer or insurance carrier have paid weekly benefits, and YOU ARE POSITIVE the benefits are considered weekly benefits, then you have three years from the date they last paid weekly benefits to file suit. Be careful here that what you were paid is weekly benefits. Payment of medical or other benefits by the employer or insurance company does NOT extend the time you have to file a claim. You should save the stub of every check you receive and every envelope you receive because the date on which the employer or insurance carrier sent something determines when you were last paid. The post-mark on the envelope controls when they last paid. Some insurance carriers write one day on a check and another day is marked on the envelope. The later date applies. If you

4 don t have an envelope, it is difficult to show that the date the employer sent the check is other than the date typed onto the check, and this could make a big difference on whether or not you are timely in filing a claim. 3. In every case, you only have 90 days from the date of injury to give your employer notice that you have an injury and that you believe it is work-related. There is no requirement as to how you give this notice, but, the careful Claimant or lawyer will put it in writing and send it to the employer by certified mail, return receipt requested, so that there is no dispute as to when the employer received notice. If the actual date of injury is not known, then the date is the date on which a reasonable person would know, or should know, of the nature, seriousness, and probable compensable character of the injury. 4. For cumulative injuries, which develop over time, the date of injury is the date on which an injury manifests itself, that is, becomes apparent to a reasonable person. An employee must know of the seriousness of the condition and that it will have an adverse impact on the person s employment. Minor pain or symptoms may not trigger the duty to give notice. MEDICAL CARE 1. The employer has a limited right to choose the provider of your medical care. In exchange for this privilege, they must pay the medical bills for care provided to treat the work injury. 2. If an employer abandons care, or denies liability for it, then the employee can choose his or her own care, and will have to pay for the care while it is denied by the employer. 3. If an employee chooses to go to his or her own doctor while receiving care from the authorized doctor, and the employer does not authorize the care, the employer is not liable to pay for it and the only way the employer will be made to pay for the care is if the employee can show that the care was reasonable and that it led to a successful outcome for the patient. 4. When an employer is delaying in providing care, or sending a claimant to care which is too far away, or not obeying what their chosen doctor has ordered, or taking other actions which are unreasaonble then the employee may file a Petition for Alternate Care where the employee asks for other care which is more reasonable, or, for the right to control care all together into the future. The form for the petition is online at the agency s website and is free to file. A phone hearing is generally held within ten days from the day the petition is filed as the hearing is designed to get quick relief to a person who needs medical care. If the employer denies liability before or at the hearing, then the hearing will be dismissed and the employee will be able to choose his or her own care. Prior to the hearing, the employee must communicate his or her dissatisfaction with the care provided by the employer so the employer has a chance to remedy the problem. pg. 4 RELEASE OF MEDICAL INFORMATION The injured worker is required to give a patient's waiver to the employer. Most employers work through an insurance carrier or a nurse case manager, and the Claimant will be required to release information to these individuals, too.

5 pg. 5 DEBT COLLECTION PROHIBITION Iowa Code Section provides that while a contested case is pending, no debt collection may be pursued over a disputed medical bill. If your insurance carrier has denied your claim, and you have sought treatment on your own, and are getting medical bills, you can write to the medical billing entity and ask them to refrain from further debt collection against you. If you win or settle your case, the billing entities will usually need paid back. If you lose the case, you will likely need to pay the billing entities at whatever you agreed to at the time you got care. INDEPENDENT MEDICAL EVALUATION Pursuant to Iowa Code section 85.39, an injured worker may get an Independent Medical Evaluation at the employer s expense. This is a one-time, second opinion from a doctor of the injured worker's choice. The employee only gets this evaluation in a case where the employer has accepted liability for the injury and the employer s chosen physician has already given an opinion on the disability of the Claimant. This almost always consists of an impairment rating and restrictions. The employee gets to choose his or her own physician for the IME. If the employer does not reimburse or agree to pre-pay for the cost, then Form 100A can be filed at the agency which asks the Commissioner to order insurance or the employer to pay for the exam or reimburse Claimant for the exam. MILEAGE Injured workers are entitled to have their mileage expense reimbursed for traveling to and from doctor s appointments. The current rate is.555 per mile. In some instances, employers will pay for transportation of the workers to and from appointments, and this is permissible as well. WEEKLY BENEFIT RATE What you will be paid each week while you are recovering from an injury is a big issues, especially for folks who are the sole income provider to a home. How rate is calculated can vary depending upon how a person earns wages, but generally, for an hourly employee, the average weekly wage is figured by looking at the wages and hours worked for the last full 13 weeks of work prior to the injury. Once the average is determined, then the weekly rate is determined by looking at the appropriate rate book or the agency s pdf versions of the rate book on the agency website. If a person is married or has dependents for which he or she is primarily responsible, then the rate will be higher for those individuals than it would be for a single individual. Only customary weeks are supposed to be used in determining a claimant s rate, but many insurance companies include low weeks simply because they fall within the 13 weeks prior to the injury, but, these are not to be counted. If an employee is absent from work during a week for sickness or vacation, or something similar, that week will not count. There is no bright line to determine what weeks are too low or too high to count, and instead, the reason for the absence or lack of work can be a big factor in determining whether or not to count the week.

6 Always check the weeks and wages and hours used by the employer or insurance carrier to determine how much they are paying you. The point of temporary benefits is to replace the injured worker s wages while they are off work recovering from their injury, or working less or earning less while they are recovering. These benefits begin on the date of injury and run until the injured worker either: (1) returns to work; (2) is medically capable of returning to work; or, (3) has reached maximum medical improvement from the injury, whichever occurs first. Iowa Code Section 85.34(1). Thus, these benefits can end even if the injured worker has not returned to work. These benefits can be lost if an employee refuses to perform suitable work, consistent with the employee s disability, which is offered by the employer. Many employers will give injured employees embarrassing or menial jobs in an effort to get the employee to refuse the work, or to quit, thus causing their obligation to pay the employee while he or she is injured, to cease. If the work you are doing or being offered is not suitable in your opinion, talk with your doctor and document your complaints at Human Resources, in writing, keeping a copy of the writing for yourself. pg. 6 PERMANENT INJURIES If an injury causes a worker to suffer a permanent functional loss of part of their body, then they are entitled to permanent disability benefits in addition to medical and temporary disability benefits. The amount depends on three things: (1) the body part affected; (2) the degree of impairment or disability; and, (3) the weekly benefit rate. Scheduled Injuries are limited to the loss to the body part. The maximum amount for loss of an entire arm is 250 weeks of pay at the work comp rate, which is figured above. So, if an employee has a work comp rate of 200 per week, and a 50% impairment to the arm, then the employee will receive 250 weeks x 50% x $ per week = $25, Unscheduled Injuries are any injuries which are not set out in the schedules. Common examples of unscheduled injuries are back, hip, neck, or mental injuries. They are often called Body as a Whole injuries because they tend to impact more of one s body than, for example, the loss of a finger, which is a scheduled injury. "Unscheduled injuries" are compensated based on "industrial disability", which means that in addition to the degree of loss suffered from the injury, the finder of fact must take into account the particular worker s age, education, work experience, and similar factors. SECOND INJURY FUND BENEFITS If a worker has suffered two scheduled injuries to separate body parts, they may be entitled to Second Injury Fund (SIF) benefits. Entitlement to these benefits is somewhat technical. The idea is that compensation for two separate scheduled injuries may not adequately compensate a worker for the resulting loss of earning capacity (industrial disability) the combination of two injuries may create. The employer pays any scheduled benefits, and the Second Injury Fund, represented by the State of Iowa, pays any extra industrial disability resulting from the two injuries. Only the SECOND injury need be work-related; the first injury can be from any cause

7 whatsoever. DEATH BENEFITS If a worker dies because of his or her work injury, then the surviving spouse receives weekly benefits at the employee s work comp rate for the remainder of his or her life, unless they remarry. In the case of remarriage, the surviving spouse receives a lump sum of two years of benefits, if there are no surviving children entitled to benefits. Surviving children may receive benefits until age 18 or, if they are a student, until age 25. If there is both a spouse and dependents from a prior relationship or marriage, then the agency will award the weekly benefits in an equitable manner. INTEREST Interest is due on delayed or unpaid benefits regardless of the reason for delay. The rate is 10%. Even if the check is sent to the employee one day late, interest is owed. This is why keeping good records of what you were paid, and when you were paid it, is a good idea. pg. 7