Introduction to 10 Tips for Surviving the System
Educational Help for Injured Workers
My Comp Lawyers have been presenting educational seminars to injured workers in Pennsylvania since 1996. We began hosting these seminars in response to the passage of Act 57, which amended Pennsylvania workers’ compensation law. Since its passage in 1996, Act 57 has dramatically altered the workers’ compensation landscape. It is our goal to provide workers’ compensation tips to help injured workers navigate this new landscape.
We have entitled this booklet the “Survival Guide” because injured workers who are placed on workers’ compensation without the benefit of experienced lawyers on their side are left to rely upon human resource managers, workers’ compensation insurance adjusters and others for advice and information regarding their worker’s compensation rights. Often, injured workers mistakenly believe that workers compensation insurance is their own insurance. Nothing could be further from the truth. Rather, workers’ compensation insurance is for the employer, and an injured worker is considered a “claim.” Reading this guide will help you avoid mistakes and survive the system. Dealing with workers’ compensation insurance adjusters can be difficult, but we make it our goal to give you the workers’ compensation resources you need!
Knowledge is Power
The employer and insurance company are well informed regarding workers’ compensation law. The insurance company has experts such as rehab nurses, company doctors and lawyers on their side. In contrast, the injured worker placed on workers’ compensation has no support system and is left to trust the insurance company to protect his or her rights. We believe that trust is misplaced. This Survival Guide is a start. However, it is not a substitute for consulting a lawyer. Even though this guide provides educational information for injured workers, you still need a certified expert to help you manage your case.
Make Informed Decisions
There are many crossroads during the life of a workers’ compensation claim. Starting from the time that the injured worker is placed on workers’ compensation and continuing until the time that the injured worker successfully returns to work, the choices made at each crossroad can and do change the outcome, for better or worse. Don’t make the wrong workers’ compensation decisions. Let us be your workers’ compensation guide. Get more than the average workers’ compensation settlement in Pa, and stop dealing with workers’ comp insurance adjusters. Let us handle your claim for free today!
We are available to answer questions and will provide consultations at any time at no charge. We hope you find the Survival Guide helpful and encourage you to call us sooner, rather than later.
1. Be sure your injury description is correct.
When a worker is injured on the job, Pennsylvania workers’ compensation law requires the workers’ compensation insurance company to issue a document called a Notice of Compensation Payable. This important document is to be filed with the Pennsylvania Department of Labor and Industry and represents the employer’s legal recognition of a work injury. A notice of compensation payable contains a description of the injury and sets forth the employee’s average weekly wage. The Notice of Compensation Payable is prepared by the workers’ compensation insurance company, and often the description of the employee’s injury is not accurate. It is very common for the insurance company to describe the injury as less severe than it really is. For example, an employee might injure his/her wrist on the job and go to the hospital emergency room or the company doctor for treatment. X-ray reveals that the wrist is fractured, but when the injured worker receives the Notice of Compensation Payable, the injury is described as a wrist sprain. Many employees do not look at the injury description when they receive the document. However, an inaccurate injury description almost always favors the insurance company and not the injured worker. The Notice of Compensation Payable should have an accurate injury description. If the nature of the injury has changed, for instance, a low back sprain is later determined to be a herniated lumbar disc, the Notice of Compensation Payable should be changed to reflect the diagnosis of the more serious condition. If you have not received a Notice of Compensation Payable or if your injury description is not accurate, you should contact us. We will correct your injury description at no charge.
2. Be sure you’re not underpaid.
If the insurance company miscalculated your wages when you were hurt, you will be underpaid every week. The Notice of Compensation Payable referred to in Survival Tip #1 includes the injured workers’ average weekly wage. The workers’ compensation insurance company calculates the average weekly wage by using one of several formulas selected depending on the injured workers’ individual circumstances. The average weekly wage should include salary and/or hourly wages, overtime, and bonuses. It may be adjusted for seasonal employment and should include income from other employment.
Mistakes in calculating the average weekly wage are often made. The injured worker should receive a document, filed with the Department of Labor and Industry by the workers’ compensation insurance company, called a Statement of Wages.
This document shows how the workers’ compensation insurance company calculated the average weekly wage. The average weekly wage is very important because it is the basis from which the injured workers’ weekly non-taxable workers’ compensation benefit is calculated. In most instances, an injured worker should receive 66 2/3% of his average gross weekly wage. Therefore, the Statement of Wages form and the calculations made by the workers’ compensation insurance company should be double-checked! Failure to review the calculations may result in an underpayment to an injured worker that goes undiscovered. We will review these calculations to ensure that you receive your maximum benefit at no charge.
3. Document the receipt of late checks.
Late weekly workers’ compensation checks are a common complaint. There are ways to correct late checks. We provide services to correct this problem as part of our traditional case management.
Pennsylvania workers’ compensation law requires workers’ compensation insurance companies issue wage loss benefit checks in the same pay cycle that an injured worker would receive his or her regular paycheck. If you were paid weekly before the injury, you should receive your workers’ compensation check weekly. Stopping late checks often requires taking the workers’ compensation insurance company to court.
If you are experiencing a problem with late checks, you should contact us and take the following steps:
1. Make a copy of the check when it is received;
2. Attach the copy of the check and any check stub that accompanied the check to the envelope in which the check came;
3. Write the date that you received the check on the envelope.
Our office can use this evidence to prove that the workers’ compensation insurance company is not sending the checks on time. Regardless of whether your checks are late, we recommend that all injured workers keep these records. We will take the insurance company to court to correct late checks at no charge to you.
4. Beware of offsets to your benefits.
Pennsylvania workers’ compensation laws provide for the reduction of an injured worker’s weekly wage loss benefits if the injured worker receives severance payments, pension payments, or Social Security retirement benefits. You will not be notified about these offsets. This includes offsets from a 401K. However, the injured worker is required to report the receipt of any of these benefits to the insurance company. There are ways to avoid these offsets, and the law in this area is still changing. There are also some strategies that can be employed on behalf of injured workers to reduce the impact of these offsets. If you are receiving workers’ compensation benefits and expect in the future to receive severance, pension or Social Security retirement, you should consult with our office.
5. Prepare for an Independent Medical Exam.
An Independent Medical Examination (IME) is not independent. It should be called an Insurance Company Medical Examination. The doctor is chosen and paid by the insurance company, will review an injured worker’s medical records and examine the injured worker. The IME doctor will then issue a written a report to the workers’ compensation insurance company. A copy of that written report is often not provided to the injured worker. The law requires an injured worker to attend an IME requested by the insurance company, but the injured worker does have rights!
An IME costs the worker’s compensation insurance company money. Therefore, it is usually requested when the insurance company has doubts about the injured worker’s doctor or treatment. The other reason that an insurance company will request an IME is to challenge the restrictions on the injured worker. In those instances, the insurance company requests an IME to force an injured worker to do more work than is recommended by his/her treating physician. In either event, AN IME SPELLS TROUBLE! If you have been asked to attend an IME, you should call our office right away. We will prepare you for the IME at no charge.
6. Choosing your own Doctor and Insurance Company Nurses.
Injured workers have the right to choose their own doctors after they have been treated for their work injury for 90 days. The injured worker’s right to select his/her own doctors includes the right to select specialists outside of the area when appropriate. If an injured worker is treated outside of the area, the workers’ compensation insurance company may be required to reimburse the injured worker for travel expenses. Workers’ compensation law provides the injured worker with the right to control his or her own medical treatment, and if you are having trouble in this area, we can help.
The insurance company will sometimes assign a nurse to your case. The nurse will call an injured worker before and after doctors’ appointments and sometimes attend the doctors’ appointments. The nurse will report to the insurance company on the treating doctor’s recommendations and will often guide an injured worker to other doctors or specialists. The injured worker should be aware of the fact that while everyone, including the insurance company, has an interest in seeing that the injured worker gets better, there is an advantage to the insurance company if it is able to control medical treatment. You do not have to talk to the rehab nurse. You do not have to allow the rehab nurse into the examination room with you. You can tell your doctor not to talk to the rehab nurse out of your presence.
7. The Vocational Interview.
Pennsylvania workers’ compensation law no longer requires the insurance company to find light duty work for an injured worker who is unable to return to his/her pre-injury job. The law now permits the insurance company to conduct a Labor Market Survey. The Labor Market Survey allows the insurance company to identify light duty jobs that are advertised through newspapers, temporary employment agencies, or Commonwealth job placement services without providing notice of these jobs to the injured worker. Once jobs are identified, a vocational expert hired by the insurance company compiles them into a Labor Market Report. The insurance company’s lawyers will introduce that report at a hearing before a workers’ compensation judge and request that an injured worker’s weekly wage loss benefits be reduced or stopped altogether. There are many ways to fight this procedure.
The Labor Market Survey typically begins when an injured worker is contacted by a representative of the insurance company for an initial interview. This contact will often come by phone or letter. You should not wait for this initial contact to occur. If you have been injured at work and it appears that you may be unable to return to your pre-injury job, you should contact us. We will prepare a strategy to help you in advance of a Labor Market Survey. If you are contacted for the vocational interview, we recommend you call us. We will attend the interview with you and make sure the results are fair.
8. Understanding a Utilization Review of your doctor.
If you are already receiving workers’ compensation benefits, you should be aware of the fact that your medical treatment can be subject to utilization review. This is a process in which the insurance company challenges whether your medical treatment is reasonable and necessary, not whether the treatment is related to the injury. Once the insurance company receives the medical provider’s bill and notes, it can file for utilization review, which allows the insurance company to avoid paying for the treatment. When the insurance company does this, a doctor with the same specialty as your doctor reviews the treatment.
There are specific time limits for utilization reviews, and even if the treatment is found not to be reasonable and necessary, you still have rights. You cannot be held responsible for paying the medical bill and you can take an appeal of that decision. In fact, utilization review is not only available to the insurance company. You, too, can file for utilization review if necessary to compel coverage.
Often an insurance company will not pay for a medical bill because it believes the treatment is not related to the work injury. You should not let these bills sit around even though you know they are related to the work injury. Your bill may be submitted to your private health insurance, or it may go unpaid. If you are having trouble with the payment of bills or receive a Utilization Review Request, we can help.
9. Prepare for the Impairment Rating Evaluation.
Pennsylvania Workers’ Compensation law provides insurance companies with the right to request Impairment Rating Evaluations (IREs). IREs are different from the Independent Medical Examinations (IMEs) discussed previously. Impairment Rating Evaluations are used by the insurance company to start a 500 week eligibility clock on an injured worker. Starting this clock places a limit on how long and, therefore, how much the workers’ compensation insurance company will have to pay to the injured worker. The insurance company gets to start the Impairment Rating process and controls the records which are reviewed by the physician.
The law sets forth specific requirements regarding when an Impairment Rating Evaluation may be requested. Pennsylvania law also provides a way to challenge an Impairment Rating Evaluation and gives the injured worker the right to select his/her own doctor to perform a separate Impairment Rating Evaluation. All of these rights are important. The Impairment Rating Evaluation cannot be requested by the insurance company until an injured worker has been receiving full workers’ compensation benefits for two years. However, if you have been out on workers’ compensation for more than six (6) months, you should call us so that we can develop strategies to prepare for an Impairment Rating Evaluation.
10. Plan before you settle.
Lump sum settlements may be used to close your claim. There is typically a very big difference between what the insurance company wants to pay in a lump sum settlement and what an injured worker should accept. It is important to remember that the insurance company cannot make an injured worker accept a settlement. Many times, a settlement, even when it provides for a large payment, is not in the injured worker’s best interest. We have developed detailed standards for workers’ compensation settlements and provide our clients with the insight necessary to know when it is in their best interest to walk away from the settlement table. Likewise, in cases where a settlement is achieved, we negotiate based on years of experience and targeted legal strategy. The insurance company always wants to close your claim, but we ensure that any settlement is in your best interest.
Settlements are not easy. They involve complex issues of law including integration with Social Security Disability Benefits and Medicare. In addition, workers’ compensation insurance companies will often want to settle your claim for medical benefits, and there are serious legal questions involved in this aspect of settlements.
Generally speaking, you should consult our office if any of the following is true:
1. You have been on workers’ compensation for more than six (6) months;
2. You suffered a serious work injury; or
3. You think there may be a chance that you cannot return to your pre-injury job.
As always, we will review your case at no charge.