This
document is a series of frequently
asked questions about general workers’ compensation issues.
Use these FAQs to enhance your understanding of the basics of WC law,
processes, and benefits associated with workers’ compensation. The following
information was taken from an articles library at: www.lawyers.com.
If
you have specific questions about Maryland WC law or a specific employee claim,
contact the state of Maryland insurance carrier (Injured Workers’ Insurance
Fund) and discuss concerns with the IWIF Legal Department or Claims Adjuster in
charge of the case.
The
following FAQs and answers are categorized into four areas:
FAQs
About Workers’ Compensation
Q: What is
workers' compensation?
A: A system of statues enacted by
each state that provides medical, lost time and permanent disability benefits
for employees hurt in the scope of their employment.
Q: Who thought
up the workers' compensation system we have?
A: State legislatures enacted the
workers’ comp system. Employees gave up their rights to sue and potentially
win awards in court. Employers gave up their common law defenses in exchange for
limits on their liabilities.
Q: Is every
worker covered by workers' compensation?
A: For all practical purposes,
all workers are covered.
Q: Why can't I
sue my employer directly?
A: Employees give up their right
to sue employers directly in exchange for assured benefits. Employees don't have
to prove negligence or freedom from contributory negligence in order to collect
benefits.
Q: Can a worker
sue someone other than the employer if another party is even partially at fault?
A: Injured employees can sue
negligent third parties in common law civil suits if they are the cause of the
accidental injury. An example would be an accident involving a trucker whose
work truck is hit by an automobile. The trucker would have a workers’ comp
claim against his employers' insurance carrier and a third party negligence suit
against the automobile driver.
Q: Are there any
types of business not required to have workers' compensation insurance or must
all employers have insurance?
A: For all practical purposes,
all businesses have to provide workers’ comp coverage.
Q: What if a
person is self-employed and is injured working? Who covers work injuries then?
A: Self-employed individuals can
purchase workers’ comp coverage on themselves.
Q: Do employers
have to provide coverage for independent contractors?
A: Independent contractors
aren’t employees and aren’t covered by workers’ comp statues. It’s a
very fact-specific issue, and the injured person who’s claiming that he is an
employee may need legal counsel to make his case.
Q: Can employers
self-insure?
A: Employers can self-insure if
they meet state requirements and provide a bond which guarantees payment of
benefits.
Q: What happens
if an employer doesn't have any insurance and I am injured? How will my injuries
be covered?
A: Your injuries may be covered
by directly filing a claim against the employer, individually naming the owner.
Many states award penalties against uninsured employers.
Q: As a new
hire, wasn't my employer required to inform me about their workers' compensation
program? They did not.
A: Most states require that the
name of the workers’ comp carrier and a synopsis of the states' workers’
comp laws are to be posted in a visible place, such as near a time clock.
Employers generally are not required to specifically advise employees of
workers’ comp information. Employers who have employee handbooks usually
describe their workers’ comp policy information.
Q: Who continues
covering and paying benefits to injured workers if an insurance company goes
bankrupt?
A: States have guarantee funds
that take over benefits when an carrier goes bankrupt. Sometimes new insurance
carriers purchase and take over a bankrupt carrier’s claims.
Q: Does my
employer have any control over what the insurance company will approve or pay
for relating to my injury?
A: Usually the insurance carrier
has discretion over claims handling. At settlement time, some workers’ comp
policies require that the employer be contacted for input on settlement offers.
Q: What, if any,
difference exists between short-term disability insurance my company offers and
workers' compensation?
A: Short-term disability benefits
pay for non-occupational conditions such as sickness. Workers’ comp benefits
are for occupational conditions.
Q: What, if any,
difference exists between long-term disability insurance and workers'
compensation?
A: Long-term disability benefits
pay for non-occupational conditions. WC benefits are for occupational benefits.
FAQs
About Workers’ Compensation Benefits
Q: Can I, or
should I, use the time off available with the Family Medical Leave Act if I am
injured at work?
A: The Family Medical Leave
Act (“FMLA”) provides up to 12 weeks of job protection if an
employee has to be off from work for emergency reasons. Usually, the employer
takes the injured employee back after medical treatment is completed. If the
injured employee is concerned about the status of his of her job, he or she can
apply for FMLA benefits.
Q: My employer
is requiring me to use up my vacation time to cover a part of the time I have
been out. Is this legal?
A: If you are off work as a
result of a work accident, you should use temporary total disability time under
the workers’ comp laws. You should not use vacation time.
Q: When will I
begin receiving benefits? Do I have to wait at all?
A: Once the carrier has received
notice of your accident and has investigated the claim and found you eligible
for compensation, benefits should start shortly thereafter. If benefits aren’t
forthcoming, an emergency hearing may be needed before the state Industrial
Commission.
Q: How much will my benefit check be
for?
A: When you are off work with a
medical authorization, the benefits are called “temporary total disability
TTD”) benefits. They’re paid at a percentage of your average weekly
wage. In Illinois, they’re paid at two-thirds of the average weekly wage.
Q: How did they
determine my weekly wage? Is any overtime included in the calculation?
A: Average weekly wage is
calculated by dividing the earnings from the 52 weeks before the accident by 52,
to arrive at an average weekly wage. Each state is different regarding overtime.
When overtime hours are included, they’re added in at the straight time rate.
Since states handle this issue differently, so you should talk to a lawyer in
your state.
Q: Will workers
compensation cover the loss of the income from my second job?
A: If your primary employer knew
of your second employment, then benefits are to be paid at the combined rate.
This is a very fact-specific issue and must be proven with wage statements from
the second employer.
Q: Do I have to
pay any taxes on my workers' compensation benefits?
A: No, workers’ comp benefits
aren’t earned income.
Q: I'm not
receiving the benefits I should be. What should I do?
A: Make certain your employer has
reported the accident to their workers’ comp carrier. Provide them with
medical documentation that you cannot work. Call the carrier to determine why
you aren’t getting benefits. If you cannot learn the reason for the denial,
you may need to consult an attorney.
Q: Does the
insurance company have to pay interest or a penalty for withholding my payment
without a valid reason?
A: There are penalties for the
willful underpayment or nonpayment of benefits. The injured employee must apply
to the state Industrial Commission, alleging the wrongful denial of
benefits and requesting the penalties be awarded against the carrier.
Q: Can I be
reimbursed for mileage and other expenses related to my injury?
A: Mileage to the insurance
companies' doctor is to be reimbursed. Other expenses paid out of pocket –
such as prescription or medical expenses- should be reimbursed with proper
receipts.
Q: What is
“Temporary Total Disability” (“TTD”)?
A: TTD is that payment made to
the injured employee when he or she is medically authorized not to work. It is
paid weekly or every two weeks at a percentage of the average weekly wage.
Q: What is
“Permanent Partial Disability” (“PPD”)?
A: PPD is the lasting disability
that the injured employee sustained as a result of the work injury.
Q: How long will
I be receiving TTD payments?
A: TTD payments will continue as
long as you are medically authorized off work or your employer has no work
within your restrictions.
Q: Each time I
go to a hearing, it seems the insurance company is able to cut my benefits. How
can they do this? My injury hasn't improved or changed.
A: Insurance carriers have
different interests than the injured employee. They will try to pay minimum
benefits if possible. They have attorneys who are well versed in workers’ comp
law. You should contact an attorney concentrating in workers’ comp as soon as
possible.
Q: Should I
apply for Social Security Disability?
A: If your injury is serious and
you will not be able to return to work, you should apply for social security
benefits.
Q: I've been
told that I cannot receive the full amount from both workers’ comp and SSDI.
Why not?
A: You cannot collect full
workers’ comp and SSDI benefits. If you are on workers’ comp, the amount of
SSDI benefits will be reduced, or offset, by an amount based on the amount of
TTD you are getting.
Q: My company
won't provide the job accommodations I need for me to do my job. Don't they have
too?
A: If the employer has work
within your restrictions, you must try the work. If they aren't able to
accommodate your restrictions, you’re entitled to remain on TTD.
Q: Aren't I
entitled to vocational rehabilitation?
A: If your employer doesn’t
have work within your restrictions, you may be entitled to vocational rehab.
Most carriers would prefer that you return to your prior employer, because it is
less costly than having to hire a vocational counselor. The requirements for
vocational rehab differ in each state, so you should check your state’s laws
to make certain that you meet the requirements for rehab.
Q: Do I have to
attend vocational rehabilitation?
A: If your employer doesn’t
have work within your restrictions and offers vocational rehabilitation, then
you have to try the program. If you fail to do so, then your TTD benefits may be
suspended.
Q: How are death
claims handled? How long do benefits continue?
A: Death claims are handled
differently in each state. Generally the benefits are paid to “dependants”
(which might include spouses, children or parents) if the death was caused by an
occupational injury. The medical proof must be presented to the workers’ comp
carrier. Benefits will continue as set forth in the state statute. You should
consult an attorney to make sure that the benefits are properly calculated.
Q: When can I
get a final settlement of my claim?
A: Workers’ comp claims
shouldn’t be settled until your medical treatment is completed because once a
case is settled, medical benefits will not be paid. But there is no requirement
in the law that the carrier must make you a settlement offer. You may need legal
counsel to get a settlement.
Q: Can I appeal
the final decision that was made in my case?
A: Each state has different rules
regarding appeals of cases. You need to consult an attorney regarding the
specific rules in your state. The decision can be appealed to the highest court
that your state allows.
Q: How will my
attorney be paid?
A: The attorney’s fee is to be
paid out of the settlement. In Illinois, the fee is 20% of the settlement
amount. The fee is taken at the end of the case and generally no fee or cost is
paid until the case settles.
FAQs
About Workers’ Compensation Claims
Q: I was injured
at work. What should be my first step?
A: Notify your employer of the
facts surrounding the accident. Seek appropriate medical care. Contact the
workers’ comp carrier and advise them of the claim. Depending on the severity
of the injury, you may well need legal counsel to obtain the benefits that you
may be entitled too.
Q: Are workers
covered going to and from their place of employment?
A: Workers are covered if the
travel arises out of their employment and is in the course of the employment. If
the travel is purely personal, it will not be covered.
Q: Are all
injuries at work covered?
A: Injuries which arise out of
and are in the course of an employees' work are covered by the state workers’
comp act. The injury must be causally connected to the employment.
Q: What if I'm
injured at a company social or recreational function? Is that covered too?
A: If your presence is required
at the function, an injury would be covered. If the employee attends on a purely
personal basis, then coverage would be excluded. These issues are very
fact-specific and require much investigation.
Q: Doesn't the
company have to hold my job open for me?
A: Generally, the employer
doesn’t have to hold your job open for you. In Illinois, there is nothing in
the statute that requires the job to be held for you.
Q: What if I
return to work, but I can't do the job because of the pain?
A: You should see your doctor and
have him modify your work as needed. You should take the work order to the
employer and have him make the necessary changes.
Q: What if my
job is only partially the cause of my injury? How much will workers compensation
pay?
A: If your job is the prime cause
of your inability to work, you should receive benefits. Employers take employees
as they find them when hired. So if an injury at your job aggravates or
accelerates your condition, the workers’ comp carrier is usually liable.
Q: Are injuries
which appear gradually over time, or occupational diseases, covered?
A: Yes. These are usually
repetitive motion injuries such as carpal tunnel syndrome. The law allows
compensation for injuries that manifest themselves over time. Medical
verification is needed to connect the work performed to the condition complained
of. Occupational diseases are also covered under most states’ compensation
acts.
Q: My injury
originally occurred with a former employer. I've re-injured the same body part.
Who is responsible for my care now?
A: The current employer is
usually responsible for aggravations of pre-existing conditions. The employer
hires an employee as he finds him or her, and any injury that worsens a prior
condition is generally the responsibility of the new employer.
FAQs
About Workers’ Compensation Medical Issues
Q: What is an
“Independent Medical Exam” (“IME”)?
A: The insurance company hires
doctors to perform medical exams on injured employees, called “independent
medical exams.” The doctor examines the employee and then reports his results
to the insurance carrier.
Q: What if I, or
my doctor, don't agree with the findings of the IME? Can I fight it or replace
the decision with one from my doctor?
A: The insurance carrier is
entitled to believe the findings of the IME doctor that it hired in the same
manner that the injured employee is entitled to believe the findings of his
treating doctor. This is one of areas of significant litigation, with each side
adopting different doctors' opinions as correct. Often a claim results in a
trial before the Industrial Commission, which is how you fight an adverse IME.
Q: How is the
doctor I'm told to go to chosen? Can't I pick my own?
A: The workers’ comp carrier
can pick the IME doctor it chooses to use. You can pick your treating physician.
Q: Can I refuse treatment if I think
it will hurt me more?
A: You can refuse treatment.
However, the insurance carrier may argue that you’re impeding your healing and
may suspend benefits. You should have a discussion with your doctor regarding
the proposed treatment.
Q: The insurance
company is delaying approval of the treatment I need. Isn't this bad-faith?
Don't they have to provide timely care?
A: The carrier is responsible for
reasonable and necessary medical care. This is another area of frequent
litigation. If they have an IME doctor who says that proposed treatment by your
treating doctor isn’t necessary, they may deny payment. These cases often end
up at trial, with the Industrial Commission deciding which course of medical
treatment is needed. These types of cases depend heavily on the medical evidence
presented by both sides.
Q: The nurse
caseworker wants to attend my doctor appointments with me. Should I let her?
A: The nurse case worker is hired
by the workers’ comp carrier. Arranging for the doctor to meet with the nurse
case manager after the appointment with the employee is a better approach. The
nurse case manager would then have to provide you with a copy of any reports
that are forwarded to the carrier. Since the nurse caseworker is hired by the
carrier, you should be cautious.
Q: What is a “functional capacity
exam” (“FCE”) and how are the results from this test used?
A: The FCE is a test that is
supposed to be an objective evaluation of the employees' ability to perform
certain activities, such as lifting, bending, kneeling, squatting, gripping and
walking. The results of the FCE are interpreted to determine what type of work
the injured employee can return to.
Q: What does the rating I was given
mean? It seems wrong. Can I appeal it?
A: The FCE rating is supposed to
be objective. If it seems wrong to you, bring a copy of the report to your
doctor and go over the results with him. It is often thought of as a fair
assessment of the injured employees condition, since it’s supposed to be an
objective test not subject to interpretation.
Q: If I've not completely recovered
from my injury, should I return to work?
A: If your employer has light
duty and your doctor allows you to return to work within restrictions, then you
should probably return to light duty work. Generally, you will then be back on
regular salary.
Q: Does my employer have to honor the
restrictions my doctor has placed on my ability to work?
A: The employer will adopt the
restrictions of either your treating doctor or those of the insurance company
IME doctor. This is often an area of litigation when there is a difference of
opinion between the doctors. The restrictions should be clear and applying to
your specific job.
Q: I'm going to
need treatment for a long time. Can I keep the medical portion of my claim open?
A:
Generally, the workers’ comp carrier will not provide for open medical claims.
In certain cases with appropriate medical proof, medical benefits can be
negotiated into the settlement. This is the exception rather than the rule. You
usually need an attorney to obtain these benefits.
Q: What is “Temporary Total
Disability” (“TTD”)?
A: TTD is that payment made to
the injured employee when he or she is medically authorized not to work. It is
paid weekly or every two weeks, at a percentage of the average weekly wage.
Q: What is “Permanent Partial
Disability” (“PPD”)?
A: PPD is the lasting disability
that the injured employee sustained as a result of the work injury.
Q: How long will I be receiving TTD
payments?
A: TTD payments will continue as
long as the employee is medically authorized off work or the employer has no
work within the employees' restrictions.
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