Workers Compensation FAQ
What should I do if I am injured at work?
You should tell your employer as soon as possible that you have been injured. If you were injured on or after January 1, 2103, you are required to tell your employer of your injury within 30 days of your injury date. If you wait more than 30 days after the injury, you will lose the right to receive workers’ compensation benefits. [If your injury was before January 1, 2013, you may have up to 90 days to report your injury.]
Can I go to a doctor for my injury?
Yes, however for the first ten days, your employer has the right to choose a health care provider to treat your injury. After the first ten days you may choose your own health care provider.
Will my employer pay for my mileage expenses and prescription drugs?
Your employer should pay for medicine and for mileage to and from your health care providers. The employer is also required to pay for necessary durable medical equipment such as wheelchairs, braces and hearing aids.
How long may I receive treatment for my injury?
You should receive coverage for all related reasonable treatment until you recover from your injury.
Can my employer force me to see another doctor?
If you are treating with a health care provider of your own choice, your employer can require you to see a different doctor for a “independent medical exam.” These doctors are chosen by the employer/insurance company. [This is referred to as a Section 207 exam.] Your employer can also require you to see a second doctor for a second “independent medical exam.”
Do I have to agree to have a case manager?
No, in fact we strongly recommend that you do not have a case manager. These managers are employed by the employer’s insurance company and report directly to the insurance company regarding anything you report to them or to your doctor while they are present.
What if the work accident was my fault?
With some minor exceptions – even if the accident was your fault, you should still be entitled to workers’ compensation benefits.
Can my employer discriminate against me if I file a workers’ compensation claim?
No. Your employer cannot discriminate against you for filing a workers’ compensation claim or for testifying in a workers’ compensation hearing. If you think your employer has discriminated against you because you filed a claim or testified, you can file a Petition to Remedy Discrimination. If your employer is found to have discriminated against you, the employer may be ordered to give you your job back and pay you for your lost wages, lost benefits and reasonable attorney fees.
Will I be paid for the wages I lost because of my injury?
Yes, if you miss more than 7 days of work, you are entitled to receive weekly compensation benefits. If you lose between 7 and 13 days, you will be paid for those days. If you miss more than 14 days, you will be paid for all of the days that you have missed.
How much will I be paid while I am unable to work?
If you were injured between January 1, 1993 and December 31, 2012, your employer will pay you 80% of your after-tax average weekly wage. If your injury occurred on or after January 1, 2013, you will be paid up to 2/3 of your average gross weekly wage. There is a limit on how much an injured worker can receive which is revised each year. For example, for injuries that occurred between January 1, 2013 and June 30, 2013, the maximum benefit a worker can receive is $717.09 per week.
What if I can go back to work, but I cannot earn as much as I used to earn?
If your injury stops you from earning as much as you used to earn, you may receive partial benefits.
Will my employer have to pay me for my pain and suffering?
No, unfortunately unlike a lawsuit brought in court, your employer does not pay for your pain and suffering.
If I cannot work due to my injury, will I lose my health insurance and other benefits from my employer?
Workers’ compensation rules do not require that your employer continue to pay your fringe benefits while you are out of work. However, you may be able to continue those benefits if provided for in your employment contract or under the Family Medical Leave Act.
Can I receive vocational training if I am unable to return to my job because of my injury?
You may be entitled to receive vocational rehabilitation – including job retraining and job placement services
How long can I receive benefits for lost time?
Regardless of your date of injury, you may receive benefits for as long as you are completely unable to do any work. If your injuries allow to you to do some work (partially incapacitated) you may receive benefits for a maximum of 520 weeks. [However, if your partially incapacitating injury has caused you a high whole-body permanent impairment and you meet a work requirement, you may receive benefits beyond 520 weeks.]
This means that your employer is paying your claim even though it is not admitting that you are entitled to those benefits. This type of payment is often called “payment without prejudice.” By doing this your employer keeps the option of reducing or even eliminating all of your benefits by serving you with a 21-day notice of discontinuance.
Can my employer stop paying benefits without my agreement?
If your claim is being paid without prejudice, your employer can stop your benefits by filing a 21-day certificate of discontinuance.
What can I do if I receive a 21-day certificate of discontinuance?
You can file a Petition for Review and request a provisional order asking a Hearings Officer to temporarily continue your benefits before a hearing is held.
How much does it cost to get an attorney to represent me?
At Irwin, Tardy & Morris the initial consultation and review of your case is free. If we later represent you, the attorney fees are set by state statute. If we recover ongoing or past wage benefits for you, the attorney fees are 30% of those benefits. If your case is settled for a “lump sum” of money, your attorney is entitled to a percentage of that settlement amount as set forth below:
Ten percent (10%) of the first $50,000 of the settlement;
Nine percent (9%) of the first $10,000 over $50,000 of the settlement;
Eight percent (8%) of the next $10,000 over $50,000 of the settlement;
Seven percent (7%) of the next $10,000 over $50,000 of the settlement;
Six percent (6%) of the next $10,000 over $50,000 of the settlement;
Five percent (5%) of any amount over $90,000 of the settlement.
Can I sue my employer in court for my work injury?
No, but you might be able to sue someone else who played a role in causing your injury.
Does my employer have to give me my job back?
If you are able to return to work, and your job is open, your employer must offer you your previous job. If your job has been filled, or if your injury prevents you from doing that job, your employer must give you a job that you can do even with your injury. Your employer must also must make changes to a job that will allow you to return to work, as long as the changes would not impose an undue hardship on your employer.
What if I can work but I can not find a job?
If your injury stops you from being employed you may be able to still receive your full workers’ compensation benefits. You must show that your injury prevents you from getting other work. This usually requires an extensive work search on your part. You will need to apply to available jobs and keep a list of each job that you sought.
What is the statute of limitations?
The statute of limitations is the time limit within which you must file a claim for benefits. Once the statute of limitations expires, you cannot make a claim for further benefits. When the statute of limitations prevents you from receiving benefits is dependent on a number of factors including: the date of your injury; when you reported your injury; whether your employer filed the appropriate paperwork; and whether any benefits have already been paid. If you have any concern regarding whether you may be beyond the statute of limitation, you should immediately contact an attorney or the Workers’ Compensation Board.
My case is scheduled for mediation, do I need an attorney?
There is no easy answer to this question, rather the answer is dependent on the complexities of your case and your individual circumstances. Mediations are primarily conducted by telephone where you or your attorney will briefly present a summary of your case, and the employer will then present defenses to paying you benefits. Specific issues or your entire case may be resolved at the mediation upon the agreement of the parties. If your case is not settled at mediation then it may proceed to a formal hearing.
Can I get an impartial doctor to evaluate my case?
Either side may request an independent Section 312 medical examination. If approved, the Workers’ Compensation Board will assign an impartial medical provider to exam you and your medical records. The provider will issue an opinion as to whether your injury is work related, what work restrictions you require and address other issues. The Section 312 provider’s report will be binding upon the Workers’ Compensation Board unless there is ”clear and convincing evidence” that the provider’s findings are wrong.
The formal hearing is your opportunity to present your case to a Hearing Officer. Both you, your witnesses and the employer’s witnesses will appear and testify under oath before a Hearing Officer. The Hearing Officer will review your evidence, and the evidence that your employer presents. After the hearing, the Hearing Officer will write a decision. The decision is binding on you and your employer. However, either side may appeal that decision to the Workers’ Compensation Appellate Division.
