How are my workers’ compensation benefits calculated?
If you experience a wage loss because of your work injury, what you are paid by the insurance company, known as wage loss benefits, is typically based on your earnings before the injury. Using your pre-injury earnings, the insurance company comes up with what is known as your average weekly wage. Your average weekly wage includes all of your gross wages, including overtime and bonuses. If you have a second job at the time of your injury, your average weekly wage also includes those wages. The higher your average weekly wage, the higher the wage loss benefits you receive.
Generally, the benefits you receive are two-thirds of your average weekly wage. It is very important that your average weekly wage be correctly calculated. In our practice we often see clients whose average weekly wage has been miscalculated by the insurance company. Even a few dollars difference in your average weekly wage can add up to hundreds or thousands of lost dollars over the course of your claim, and can also affect the settlement value of your case.
If you think there might be an error in your average weekly wage, or simply want someone to review your average weekly wage calculations, please call us for a free consultation.
Which Employees Are Covered by Workers’ Compensation?
If you find yourself in a situation where you need to rely on workers’ compensation, it is vital to know you will be covered. Here is a look at who does and does not qualify for workers’ comp.
Workers’ Compensation Coverage Guidelines: Who Qualifies?
The only people who can file workers’ compensation claims are those covered by these insurance policies. In exchange for coverage, the employees promise not to sue for negligence. Claims may be filed for injuries that happened on the job or were in some way caused by work.
You should know whether or not you are covered by workers’ comp. Pennsylvania, like most states, has a mandatory workers’ compensation law covering all but the smallest companies and nonprofits.
To qualify for workers’ compensation, you must be considered an employee. You may work for a company and not be considered an employee. Some examples of this situation include:
However, even if your company calls you a contractor and you get a 1099, you may still qualify as an employee. If you do not control certain aspects of your employment — say you cannot set your own hours, you cannot turn down certain employer requests, and you do not own the equipment you use — you may qualify for workers’ comp as an employee. If you have no other clients and do not otherwise advertise your services, you may also be considered an employee legally.
Other Exceptions to Workers’ Comp Claims
According to state law, there are certain jobs that also may not qualify for workers’ comp, including:
- Seasonal workers
- Part-time domestic workers
- Farm workers
- Taxi drivers
With all these exceptions and rules, it may be helpful to consult with a lawyer to determine whether you should be covered by workers’ compensation. KBG Injury Law can help you determine whether you deserve these benefits and how to go about getting them. Contact us today to set up a consultation.
Can I choose my own doctor after a work injury?
After an injury, many employers send an injured worker to one specific doctor or facility for treatment. They don’t give the injured worker a choice in who they see. We are often asked, “Can they do this?” Under the workers’ compensation law, your employer must comply with certain requirements in order to control the choice of what doctors you see. Only if they comply with these legal requirements can they control your treatment for the first ninety days.
For example, your employer must post a list of at least six healthcare providers. The providers listed must be geographically accessible. Your employer must provide you with written notice, both at the time you are hired and immediately after the injury, telling you, among other things, that you need to treat with a company doctor for the first ninety days. Even if they comply with all of the legal requirements, your employer cannot choose which of the doctors on the list you see. That is your choice. If a chiropractor is not included on the list, and you want to see a chiropractor, you may select and treat with a chiropractor.
After ninety days of treatment with a company doctor, you may seek treatment from a doctor you choose. If you change doctors, you must provide your employer with the name and address of the new doctor who is treating you within five days of your first treatment.
What benefits can I receive following a work injury?
There are generally three types of benefits payable for work injuries. First, you can be entitled to wage loss benefits. If you are unable to work at all, or if your employer is unable to accommodate whatever restrictions you may have, you are entitled to what is called total disability benefits, which are generally two-thirds of your gross weekly pay, but that figure can vary.
If you have returned to work with restrictions, but you are not making as much as you were before the injury, you can qualify for partial disability benefits. For instance, if you can only work part-time due to restrictions from your doctor, or if your modified job pays a lower hourly rate, you are entitled to generally two-thirds of your lost wages. In addition to wage loss benefits, the insurance company is required to pay for all of your reasonable and necessary medical expenses related to the work injury or disease, even if you do not miss any time from work.
In cases of very serious injuries involving the loss of use of a limb or body part, or hearing or vision loss, you can also be entitled to specific loss benefits, which vary greatly depending on the body part involved. Also, if your injury results in some type of disfigurement to your head, face, or neck, such as from a burn or a surgical scar, you are entitled to a separate disfigurement award which is based upon the severity of the disfigurement. Finally, in cases of a work-related death, the surviving spouse and any minor children are entitled to wage loss benefits, along with the one-time funeral benefit. This has only been a very brief summary of the benefits available to you. If you have any questions or concerns, please call us for a free consultation.
Does Workers’ Compensation Cover Repetitive Motion Injuries?
In many cases, they may. One such instance is repetitive motion injuries or situations where the worker has been injured by a long period of performing the same movement over and over again. These are actually the most common causes of work-related injury, and perhaps little wonder. They happen over time, so you may not even realize the damage is done until it is too late.
What are some examples of repetitive motion injuries on the job? They may include:
- Carpal tunnel syndrome, a pinching of nerves caused by swelling in the wrists
- Tendonitis, in which the tissues between bones and muscles tear
- Bursitis, when the pads between your bones swell
These injuries can be caused by doing the same thing day in and day out. Carpal tunnel, for instance, may be rooted in repeated use of the keyboard and mouse with a computer. Lifting heavy tools or even light tools can result in repetitive motion injuries, as can carrying heavy weights or scanning the thousands of items that cross a grocery store checkout each day.
Repetitive injuries can be treated and prevented when the employer is made aware of them. They are subject to workers’ compensation coverage. If you plan to make a claim, you must be able to prove the injury occurred on the job and show how it has impacted you.
What is a lump sum settlement in a workers’ compensation case?
If you are receiving benefits, you may be entitled to a lump sum settlement from the insurance company. Insurance companies prefer that you not have an attorney so that they can settle your case for less money. Only an attorney who is experienced in workers’ compensation cases will be able to accurately tell you how much your case is worth, and make sure the insurance company pays you everything that you’re entitled to. In fact, in most cases an experienced attorney will be able to obtain a larger lump sum for you, even after the deduction of attorney’s fees then you would be able to obtain by settling your claim on your own.
The settlement of a workers’ compensation claim can also be much more complicated than it first appears. This is especially true if you are receiving, or may become eligible for, Social Security disability, retirement, or Medicare benefits; if you have received short-term disability or long-term disability benefits; or if some of your medical bills have been paid by private health insurance, Medicare, Medicaid, Public Assistance, or some other insurance program. If any of these benefits or insurance programs are or may be involved, and they are not properly accounted for in the settlement, you may unintentionally lose those benefits or insurance programs, or, worse, have to pay them back for payments that they have made. Before you sign any type of settlement agreement, you should, therefore, consult with a workers’ compensation lawyer.
What should I do if I’m contacted about a vocational interview after my work injury?
If you’ve sustained a work injury and are unable to return to your pre-injury position, or if your employer is unable to accommodate whatever medical restrictions you may need, you will continue to collect your weekly wage loss benefits. The insurance company, obviously, has an interest in trying to minimize or stop those payments to you, and if there is no work available to you with your employer, the insurance company will oftentimes resort to hiring a vocational consultant to try and prove that there is other work available to you in the general labor market. It is important for you to remember the consultant is working only for the insurance company and is not looking out for your best interests. In fact, in most cases, the consultant never actually assists you in finding a new job; rather, the consultant uses information you provide about your background, training, and education to identify potential jobs that you could perform, and this information is then used by the insurance company to try and stop your benefits.
If you are contacted by a vocational consultant, you are strongly advised to contact an attorney for guidance. For our clients, we actively participate in the interview process, first by requiring that the interview take place in our office, under our supervision, to make sure that only relevant information is requested. It is important for us to become involved as early as possible in your case to provide you with the proper guidance through the process.
What should I do if I have a work injury?
No matter how insignificant you think your injury may be at the time, you should report it to your supervisor right away. Many times an injury does not seem too bad when it happens, but over the next day or two it will become more severe. Failure to immediately report an injury is a common reason that workers’ compensation claims are denied by the workers’ compensation insurance carrier. So, while you may think that you are doing the right thing by not complaining about every little injury, you may actually be jeopardizing your claim by not reporting the injury right away. Also, be aware that the injury must be reported to a supervisor, not a coworker, in order to be considered as proper notice to your employer.
At the same time that you report the injury, you should also request medical treatment if you think that it is necessary. Even if you do not think that it is necessary at the time, you should ask if there is a list of doctors with whom you are supposed to treat for a work injury, so that, in the event that your injury worsens, you know where to go for treatment. Another common reason workers’ compensation claims are denied is that the medical records of your doctors may not accurately reflect how your injury occurred or all of the injuries you sustained. When you do seek medical treatment it is, therefore, very important that you make sure to tell each new doctor that you see how your injury happened, that it happened at work, and all of your body parts that were injured.
Should I bring a claim for my injuries?
You may be thinking, “I’m not the suing type,” or, “There are too many lawsuits already.” Bringing an insurance claim does not mean that you’re filing a lawsuit. The vast majority of our cases settle favorably without filing a lawsuit. Nonetheless, you may hesitate to bring an insurance claim for fear of being seen as being the suing type. Rest assured, the people we represent are just like you: honest, good citizens, who wish that the accident had never happened, and just want to be treated fairly by the adverse insurance company.
The Commonwealth of Pennsylvania, as well as every other state in the Union, requires that drivers carry insurance. It’s the law. And the reason for that law is simple: so that there is a pool of money available to compensate people who suffer damages as a result of another driver’s negligence. If you’ve been injured in a car accident and you choose not to bring a claim, you’re not helping the other driver, and you’re certainly not helping yourself. You’re merely helping the insurance companies. You’re essentially saying to them, “I know that we’re all required to buy insurance from you, and that money is there to compensate me for my injuries, but I’d really rather that you keep it for your profits, instead of using it for its intended purposes—fair compensation.”
What Is A Vocation Expert / Vocational Interview?
A Vocational Expert is a person hired by the insurance company to determine what kinds of work you are capable of doing if your injury prevents you from returning to your time of injury employer. Typically the vocational expert will contact you and set up a time to meet with you.
If you receive such a phone call you should call workers compensation lawyers immediately.
After the vocational expert meets with you they will search the local job market for positions they believe are appropriate for you based upon your work history, education and limitations resulting from your work injury. Typically they will then send a report to the insurance carrier listing the positions that they have found and will estimate your earning capacity based upon those positions. The insurance carrier will then use this information to try to reduce your wage loss benefits. Sometimes they may schedule appointments for you to submit applications or interview with particular employers. Failure to attend these appointments may significantly jeopardize your wage loss benefits.
Your rights and obligations regarding the vocational process are complex. It is very important that you contact an experienced workers’ compensation lawyer as soon as the process begins. The longer you wait to contact a lawyer after the process begins, the more likely it is that your wage loss benefits and the possibility of workers compensation settlements will be jeopardized.
What Is An Independent Medical Examination (IME)?
An IME is not truly independent. It is an examination by a doctor who is chosen, and paid, by the insurance company to provide them with opinions regarding such issues as the cause of your injury, the nature/extent of your workers compensation disability, your work capacity and your future treatment. You do not have to accept treatment from this doctor.
As a general rule the insurance company can request your attendance at an IME no more than 2 times per year. You should not, however, attend an IME unless you first discuss this with a workers’ compensation lawyer as, more often than not, this doctor’s opinions will differ from the opinions of your treating doctor.
If you are workers’ compensation benefits, the insurance company cannot stop your weekly benefits or stop paying your medical bills if you refuse to go to an IME, unless you have been ordered to attend an IME by a Workers’ Compensation Judge. If this happens, you should immediately contact a workers’ compensation lawyer.
What Is An Impairment Rating Evaluation (IRE)?
An IRE is a medical examination requested by the insurance company to determine your total body impairment resulting from your workers compensation injuries. By law, the IRE should not occur until you have received 104 weeks of total disability benefits. At the request of the insurance company the Bureau of Workers’ Compensation chooses a doctor in your local area to perform the IRE. Depending upon the results of the IRE, the period of time that you can continue to receive weekly wage loss benefits may be limited.
As a general rule the insurance company can request your attendance at an IRE no more than 2 times per year. You should not, however, attend an IRE unless you first discuss this with a workers’ compensation lawyer.
If you receiving workers compensation in PA, the insurance company cannot stop your weekly benefits or stop paying your medical bills if you refuse to go to an IRE, unless you have been ordered to attend an IRE by a Workers’ Compensation Judge. If this happens, you should immediately contact a workers’ compensation lawyer.
Must I Cooperate With Insurance Company Nurses?
Often the insurance company will have a nurse call you and/or go to your doctors’ appointments with you after a workers compensation injury. These nurses may seem to care about you and your injury, but many of these nurses do not have your best interests at heart. They work for and are paid by the insurance company. Their job is to get you back to work and off of workers’ compensation as soon as possible, even if you do not feel well enough to return to work. Therefore, remember the following important points:
- You are not required to meet with the company nurse.
- You do not have to allow the nurse to come to your doctors’ appointments.
- You do not have to provide any information, medical or otherwise, to the company nurse.
- If a nurse continues to appear, uninvited, at your doctors’ appointments, you should call your worker compensation lawyer immediately.
Am I Entitled To A Lump Sum Benefit?
If you are receiving benefits, you may be entitled to a lump sum settlement from the insurance company. Only experienced PA workers compensation lawyers can tell you how much your case is worth, and make sure that the insurance company pays you everything you are entitled to receive.
Signing Supplemental Agreements, Final Receipts or Compromise and Release Agreements may have the effect of signing away your right to future wage loss or medical benefits. Signing any of these documents may also affect your receipt of, or future entitlement to other benefits such as Unemployment Compensation, Social Security Disability and Medicare. ALWAYS consult with an experienced workers compensation lawyer before settling and/or signing any documents.
Can I Sue?
You cannot file a lawsuit against your employer for an on-the-job injury. Your only recourse is workers’ compensation benefits.
However, if someone else is responsible for your injury, you may be able to file a lawsuit against that other party. For example, if you are in a car wreck while working, you may be able to sue the other at fault driver. In most instances, however, the workers’ compensation insurance company is entitled to be reimbursed for the wage loss and medical payments they made, from any monies you receive from that other party. It is therefore very important that you consult with a workers’ compensation lawyer if you believe that someone other than your employer is responsible for your injury.
What Injuries Are Covered By Workers’ Compensation Insurance?
If your job causes or materially contributes to any injury, illness or disease, you are entitled to benefits. There does not have to be an “accident,” and your job does not have to be the only cause of your injury.
Injuries on/off the premises – You may be entitled to benefits even if you are not on your employer’s property at the time of injury, or even if you are not “clocked in” when your injury occurs.
Aggravation of preexisting health problems – Your job does not have to be the only cause of your injury. You are entitled to benefits if your job aggravates a preexisting medical condition. For example, if you had a bad back when you started the job, and injure your back further while working, you may be entitled to benefits.
Repetitive use injuries – If your injury is caused by doing the same thing over and over again, you may be entitled to benefits. This type of injury is called a “repetitive trauma injury”. A repetitive trauma injury may include a back injury from heavy lifting over many years, or carpal tunnel syndrome caused by job duties such as repetitive typing, computer work, assembly work or machine operation over a period of time.
When Will I Receive My Benefits?
After you give notice to your employer of your injury, the insurance company must either pay you within 21 days of the date you give notice or send you a Notice of Denial.
You must be off of work more than 7 days to receive weekly benefits (although medical benefits are payable from the first day of injury). If you are off of work more than 7 days, the insurance company must begin paying benefits from that day forward. If you are off work more than 13 days, the insurance company must go back and pay you for the first 7 days as well.
The insurance company has the option to pay you “temporary compensation” for up to 90 days while they investigate your claim. If the insurance company tells you that they are stopping your temporary compensation checks, you should immediately consult with a worker compensation attorney to see if you could be entitled to a larger workers compensation settlement.
For workers compensation claim help, call Katherman Briggs & Greenberg today. Read more about workers comp injury at our workers’ compensation information page.