Frequently Asked Questions

Regarding Workers' Compensation and the rights of injured workers.

Introduction

What is workers’ compensation?

It doesn’t seem fair that my employer should be allowed to get away with paying less than my injury is worth.

What does it mean to be on workers’ compensation?

If you or someone you know has been hurt at work

Reporting your injury

How do I give notice of my injury?

What if more than 24 hours have passed since my injury?

My employer will not accept my accident report, what should I do?

What if I have had a painful condition for more than 120 days but I did not know it was work-related until recently?

After your injury has been reported

I’ve reported my injury to my employer, how will I know if my workers’ compensation claim has been accepted?

I did not receive a notice of compensation payable, but my employer is paying for my medical treatment.

I received a temporary notice of compensation payable, what happens now?

Treating for your injury

My employer requires that I go to occupational medicine, do I have to go or can I go to my own doctor?

I never received a notice of compensation payable, do I still have to treat with occupational medicine?

I’ve been told by a doctor that I will need surgery, am I required to have surgery under workers’ compensation?

I’ve been contacted by nurse who wants to schedule my appointments and attend doctors’ appointments with me.  What should I do?

If your injury has been recognized and you are disabled

What does it mean to be disabled under workers’ compensation?

How does workers’ compensation determine if I am losing wages?

How long will I receive workers’ compensation benefits?

Tactics your employer may use to eliminate or reduce your workers’ compensation benefits

I. Independent Medical Exams

How many times can my employer make me attend an IME?
What happens if I fail to attend an IME?
What if attending the exam will cause me hardship or require me to miss work?

II.  Impairment Ratings

How are impairment ratings determined?
When can my employer send me to an impairment rating evaluation?

III. Earning Power Assessments

I’ve been contacted by a vocational counselor who wants to meet with me.  What does this mean?
Do I have the right to have an attorney with me during my interview with the vocational counselor?
I’ve met with a vocational counselor who is now sending me job referrals.  Do I have to apply to these jobs?
I’ve received a report from the vocational counselor that says I am capable of earning some amount of money each week.   What happens now?

IV. Petition to Terminate Workers’ Compensation Benefits

How will my employer begin the process of trying to terminate my workers’ compensation benefits?
How can my employer argue that I have fully recovered from my injury when I am still in pain?
I’ve received a petition to terminate workers’ compensation benefits in the mail, what happens now?

Specific loss and disfigurement benefits

How much compensation am I entitled to if I lost a part of my body or the use of a part of my body as the result of a work injury?

What kind of scars or disfigurements are covered by workers’ compensation?

If I’ve suffered a loss of hearing as a result of my job am I entitled to workers’ compensation benefits?

Introduction

What is workers’ compensation?

Most lawyers will answer this question by telling you that workers’ compensation is an administrative system designed to provide compensation to injured workers and their families.  Technically correct, this answer misses the heart of the most important body of law this country has ever known.

In its essence, workers’ compensation is a compromise between injured employees and their employers.  This is not to say that workers’ compensation is an agreement you reach with your boss, rather it is a compromise forced upon you and your boss by the legislature.   Under workers’ compensation, both injured workers and their employers give up significant rights they would otherwise have and gain significant advantages they otherwise would not have.  For an injured worker, the most significant right he or she loses is the right to sue his or her employer in court and receive full legal damages.  (the most poignant difference between legal damages and workers’ compensation benefits is that workers’ compensation does not provide monetary awards for pain and suffering.) The most significant advantage an injured worker obtains is that he or she is entitled to benefits even if the accident was his or her own fault.  As far as your employer is concerned, the most significant advantage conferred to it is that the amount of workers’ compensation benefits they are responsible for paying is often less than what they would have to pay if they were taken to court and lost.

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It doesn’t seem fair that my employer should be allowed to get away with paying less than my injury is worth.

In many cases, we agree.  It is an unfortunate fact that some employers take advantage of the workers’ compensation system and allow their workplaces to become extremely unsafe.  That said it remains extremely difficult to sue your employer in court.  While one is most often unable to sue his or her employer in court, this restriction does not apply to third parties who may also have contributed to your injury.  Whenever praetorian law group represents an injured worker, we explore every single possible avenue in order to ensure that our clients receive the maximum amount they are entitled to by law.

What does it mean to be on workers’ compensation?

You have often heard that some one is “on comp.”  This is a short-hand way of saying that someone is disabled as the result of an accepted work injury and is receiving benefits for his or her wage loss.  You do not have to be completely unable to work to qualify for workers’ compensation benefits.  Under workers’ compensation, you are generally considered “disabled” if you are unable to return to your time of injury position.  If you are unable to return to your time of injury position and are earning less money as a result, then you are generally entitled to workers’ compensation benefits.  This applies even if your employer makes light duty work available.  If you are earning less money while on light duty, then you will often be entitled to workers’ compensation benefits.  In the following sections, we explain the amount of wage loss benefits you should expect to receive.

If you are receiving workers’ compensation benefits, then you are within the administrative workers’ compensation system.  What this means and what you can expect varies from employer to employer.  What we can say at this point is that workers’ compensation benefits most often are administered by insurance companies whose goal is to spend as little on your workers’ compensation claim as possible—whether or not doing so is in your best interest.  You can expect that this insurance company will pursue every mean at its disposal, legal or otherwise, to reduce the amount it pays.  You can expect to be sent to doctors who may not listen to you and who may only spend five minutes or less examining you.  You can expect to receive notices in the mail stating that you are capable of working and instructing you to look for work.  Sometimes, and this is truly unfortunate and wrong, you can expect the insurance company to send your checks late as a method of harassment.

If you are being harassed by an insurance company, it is important to remember that you did nothing wrong and that you have rights.  This book’s purpose is to advise you of your rights.  If you have further questions, you can call praetorian law group.  We will never charge you a fee for an initial consultation.

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If you or someone you know has been hurt at work

Reporting your injury

If emergency medical assistance is required, call 911 or go to the nearest hospital.  You will not lose any rights under workers' compensation if you seek immediate care in a medical emergency.

If you do not require emergency care, or if you have obtained emergency care and the urgency has passed, you must begin to protect your rights under workers' compensation.  First and foremost, you must provide your employer with notice of your injury.  Under workers' compensation, injured employees have an affirmative obligation to report their injuries to their employers.  Failure to report your injury in a timely manner can result in the loss of substantial workers' compensation benefits.  Moreover, the workers' compensation process will not begin until your employer has notice of your injury.

You should try to report your injury immediately or within 21 days to preserve all of your workers' compensation rights.  In every circumstance, you must report your injury within 120 days.  If you fail to report your injury within 120 days, your right to workers' compensation benefits will be lost forever.

How do I give notice of my injury?

Workers' compensation requires only that injured workers report their injuries to their employer.  It is not enough that your employer knows you are hurt, you must report that your injury is work-related.  By law, if you report your injury to your supervisor as being work-related, the notice requirements of workers' compensation are satisfied, even if you do so orally as opposed to in writing.

That said most employers have formal "accident reports" for reporting injuries that you may be required to complete, or that may be completed by your supervisor or other designated person.  While oral notice of your injury is enough for workers' compensation benefits, we recommend that you comply with your employer's policy of completing a written report.  Whenever possible, have a union representative or other witness with you when you report your injury.  Always ask for a copy of the written report as well.

Even though workers' compensation only requires that oral notice of your injury be given, it is usually better if a written report is completed.  It has been our experience that many employers do not take injuries seriously until a written accident report has been submitted.  In addition, if a written injury report is completed, you will have evidence that you reported your accident.

What if more than 24 hours have passed since my injury?

It doesn't matter.  You have the right to report your injury, and your employer is obligated to accept your report.  We know of several employers who have, at least in the past, told injured workers that accident reports must be completed within 24 hours and then try to turn injured employees away.  Other employers require accidents to be reported within 48 hours or 7 days.  While your employer may have a policy that requires injuries to be reported immediately or within twenty-four hours, this is not the law.  Under the law, you can report your work-injury at any time.  If you report your injury more than 21 days after it occurred, your employer may not have to pay you for any wages you lost prior to the date you reported your injury.  (if you report your injury within 21 days, then you will remain eligible for all wage loss benefits you are entitled to from the date of your injury forward.)  Remember, if you report your injury more than 120 days after it occurred, you will not be eligible for any workers' compensation benefits whatsoever.

While workers’ compensation does not require you to report an accident within 24 hours, you should still comply with your employers’ requirements whenever possible.  It is important to remember that workers’ compensation often operates separately from the terms of your employment.  Thus while you would remain eligible for workers’ compensation benefits, you could nonetheless be subject to employee discipline if you fail to comply with your employer’s requirements.

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My employer will not accept my accident report, what should I do?

Unfortunately, many employers have refused to accept accident reports from injured workers in an attempt to deter them from seeking workers’ compensation benefits.  Sometimes, they will use the fact that you failed to report your accident within 24 hours as a reason.  Other times, your boss might state that he or she is not the proper person to report work injuries to and walk away.  For this reason, whenever possible, we recommend that you try to report your injury in the presence of a witness.  If you are a member of a union, try to have your union representative present when you report your injury.

If you are unable to file an accident report with your employer, you should feel free to contact praetorian law group.  When our clients’ injuries need to be reported, we send notice of our clients’ injuries by certified u.s. Mail.  If you do not desire legal representation at this time, you should contact the bureau of workers’ compensation at 1-800-482-2383.

What if I have had a painful condition for more than 120 days but I did not know it was work-related until recently?

Unlike an accident resulting in injury, some conditions arise slowly (sometimes over the course of years) and are not obviously related to your employment.  Common examples of such injuries include carpel tunnel syndrome, lateral epicondylitis (tennis elbow), degenerative disc disease, arthritis and shoulder pain.  In situations such as these, the requirement to give notice does not begin until a medical doctor has related your injury to your employment.

After your injury has been reported

I’ve reported my injury to my employer, how will I know if my workers’ compensation claim has been accepted?

Your employer can only accept your claim for workers’ compensation benefits by issuing one of three documents.  These documents are: (1) a notice of compensation payable; (2) a medical-only notice of compensation payable; and (3) a temporary notice of compensation payable.  If your employer issues a notice of compensation denial, or if your employer fails to issue any document within twenty-one days, then you should consider your workers’ compensation claim denied.

If your workers’ compensation claim has been denied, then the only way you can preserve your workers’ compensation rights is to file a claim petition with the workers’ compensation office of adjudication.  You must file a claim petition within three years of the date of your injury, or your right to workers’ compensation benefits will be lost forever.  It is important to remember that reporting your injury to your employer is not the same as filing a claim petition to with the workers’ compensation office of adjudication.  An injured employee must turn to the workers’ compensation office of adjudication after they report their injury to their employer if his or her claim for workers’ compensation benefits is denied.

I did not receive a notice of compensation payable, but my employer is paying for my medical treatment.

You should still consider your claim to be denied.  Some employers may pay for medical treatment, and may even pay some form of wage loss benefits, even though they have not issued a notice of compensation payable.  You should not be lulled into believing your claim for workers’ compensation has been accepted.  It has not.  Unfortunately, some employers take shortcuts in the workers’ compensation process.  Such an employer may decide to pay your medical expenses and hope your claim goes away.  Meanwhile, the three year statute of limitations you have to protect your rights continues to slip away.

If more than 21 days have passed since you reported your injury and you have not received one of the three documents an employer can use to accept your claim, you should feel free to contact praetorian law.  We are happy to explain the steps you need to take to protect your rights, and we never charge fees for initial telephone or in-person consultations.

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I received a temporary notice of compensation payable, what happens now?

When your employer issues a temporary notice of compensation payable, it means that your claim has been accepted on a provisional basis.   If your employer takes no further action before the expiration of ninety (90) days, then your claim will be accepted in full.  Employers issue temporary notices of compensation payable in order to gain additional time to investigate claims for workers’ compensation benefits.  Generally, an employer must accept or deny a claim for workers’ compensation benefits within twenty-one (21) days of receiving notice of an injury.  An employer can gain an additional sixty-nine (69) days to investigate a claim by issuing a temporary notice of compensation payable and paying you benefits pending the completion of its investigation.  If an employer takes no further action within this time, then the temporary notice of compensation payable will convert automatically into a full notice of compensation payable and your claim will be accepted in full.  However, if an employer issues a notice of compensation denial within the permitted time, then your claim will be denied.  If you received a temporary notice of compensation payable and then receive a notice of compensation denial within ninety days of the date your injury was reported, then you must file a claim petition with the workers’ compensation office of adjudication in order to protect your rights. 

If your employer issues a notice of compensation payable, then your employer cannot unilaterally cease paying your workers’ compensation benefits.  Your employer must either obtain your consent or prove its case before a workers’ compensation judge.  On the other hand, an employer can unilaterally terminate your workers’ compensation benefits if it issues a temporary notice of compensation payable as long as it does so within ninety (90) days of receiving notice of your injury.  This is the most significant difference between issuing a notice of compensation payable versus issuing a temporary notice of compensation payable.

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Treating for your injury

If your injury has been accepted by your employer, then your employer must pay for all reasonably and necessary medical care causally related to your work injury.  Workers’ compensation, however, places several requirements onto injured workers when seeking medical treatment.  First and foremost, your employer has the right to limit your choice of medical providers in many instances.

My employer requires that I go to occupational medicine, do I have to go or can I go to my own doctor?

Many employers attempt to send injured workers to a managed care facility such as concentra, corporate care or occu-med.  These healthcare providers specialize in providing low cost medical services and are not known for a high quality of care.  In fact, some of these organizations advertise that they specialize in sending injured workers back to their jobs as soon as possible.  Many times, the doctors who treat at these facilities devote up to one-half or more of their professional time performing independent medical exam’s for insurance companies.

The good news is that you do not have to treat with these organizations if you do not feel you are receiving adequate care.  The bad news is that your health treatment options will be limited for the first 90 days following the date you first treated for your injury.  In an effort to control medical costs associated with work injuries, workers’ compensation allows employers to require injured workers to treat with a limited number of identified doctors and/or health care organizations.  These healthcare providers are often referred to as “panel providers.”  Often, one or more of the identified providers will be an occupational medicine group such as concentra.

Injured workers have the right to treat with any “panel provider” on the list.  Employers cannot require injured workers to treat with just one specific provider.  While employers do not have the right to require that injured workers treat with one specific health care provider, they often attempt to do so.  Therefore, it is important to know your rights under workers’ compensation, especially if you suspect a serious medical condition may exist.

Also, it is important to remember that while workers’ compensation permits employers to create lists of “panel providers,” in order to do so, employers must comply with numerous statutory requirements.  The following three are of primary importance.  One, employers must disclose the existence of the panel list to employees at their time of hire.  Two, employers must post the list of “panel providers” in a public area where all employees can see it.  Three, employers must have injured employees sign an acknowledgment indicating that they have been informed of their obligation to treat with a panel physician at the time the injury is reported to the employer.  If the employer fails to meet these requirements, then they do not have the right to identify which healthcare providers their employees must see for work injuries.

Finally, once ninety days have passed since the time an injured worker first treats for his or her injury with a panel physician, he or she once again has the right treat with a doctor of his or her choice.

If you have further questions, please feel free to contact praetorian law.  We are happy to answer any questions, and we never charge a fee for initial consultations.

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I never received a notice of compensation payable; do I still have to treat with occupational medicine?

If you have not received a Notice of Compensation Payable within twenty-one days of reporting your injury, or if you have received a Notice of Compensation Denial, then you are not required to treat with a “Panel Provider.”  You can treat with a physician of your choice.  One thing to consider is that because your workers’ compensation claim has been denied, your employer will often refuse to pay for your treatment.  Therefore you should expect to pay for this treatment with your health insurance or with your own funds.  Because your workers’ compensation claim has been denied, it is important that you remain cognizant of the three year statute of limitations in order that you do not lose important rights.

I’ve been told by a doctor that I will need surgery, am I required to have surgery under workers’ compensation?

In some circumstances you can lose workers’ compensation benefits if you refuse reasonable and necessary medical treatment.   If a proposed surgical procedure has a high likelihood of improving your condition and has a low likelihood of causing adverse consequences, then you could lose your workers’ compensation benefits until such time as you undergo the proposed procedure.

It is important to remember; however, that once your injury has been accepted by your employer, your workers’ compensation benefits can only be stopped with your consent or by decree of a workers’ compensation judge.  This is important to remember because proving a surgical procedure will improve your condition without presenting undue risk of adverse consequences is easier said than done.  Very often, your employer will not be able to prove this is the case, and you can continue to receive your workers’ compensation benefits.

Finally, if you are still within the ninety day window following the date you first treated for your injury with a panel physician, and a “Panel Provider” has recommended an invasive surgical procedure, then you have the right to second opinion with a doctor of your choice.

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I’ve been contacted by nurse who wants to schedule my appointments and attend doctors’ appointments with me.  What should I do?

It is becoming and more and more common for employers and their insurance companies to retain nurse case managers.  These individuals will represent to you that their purpose is to assist you in getting the best care for your injury.  They will offer to schedule your appointments, and they frequently offer to attend your doctors’ appointments in order to be available for questions.

You should not allow yourself to believe that these people have only your interest in mind.  They are retained by insurance companies whose goals are often to minimize the amount spent on your medical care and to obtain a release to return to work as soon as possible.

You have the right to make your own appointments, and you have the right to refuse having a nurse case manager present at your doctors’ appointments.  In fact, you are under no obligation to even allow a nurse case manager to speak with your doctors.

Ultimately, it is your choice to accept the services of a nurse case manager or not.  However, given the clear potential for conflicts of interest between injured workers and insurance companies, it is our general practice to advise our clients not to accept the services of a nurse case manager.  Moreover, we often advise our clients that they should not even speak with these individuals.

If you have further questions, or if you are being contacted by a nurse case manager, please feel free to contact praetorian law.  We are happy to answer any questions you may have, and we never charge a fee for initial consultations.

If your injury has been recognized and you are disabled

Workers’ compensation serves to provide injured workers with compensation for wage loss that results from injuries or illnesses that occur in or are caused by the work place.  In order to receive these benefits, you must be “disabled” as defined by the workers’ compensation act.

What does it mean to be disabled under workers’ compensation?

In order to be considered “disabled” under workers’ compensation, the following two conditions must be met.  First, your injury must prevent you from working in the same capacity that you worked prior to being injured.  Second, you must lose wages as determined by the workers’ compensation act.  If these two conditions are satisfied, then you are entitled to receive workers’ compensation disability benefits.

If your injury results in a heath care provider placing you onto some type of work restrictions, then you are not able to work in the same capacity as you did prior to your injury.  For example, if your doctor restricts you from working overtime, but otherwise allows you to return to work, then you are not able to work in the same capacity as you did prior to your injury.  If you lose overtime pay as a result of this restriction, then you are entitled to workers’ compensation disability benefits.  As another example, if your doctor places you onto light duty as the result of a work injury and your employer makes light duty available but pays you at a lower hourly rate, then you are entitled workers’ compensation disability benefits.

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How does workers’ compensation determine if I am losing wages?

Workers’ compensation compares what you earn after your injury to your average weekly wage (“aww”).  In general, your aww is based on what you earned during the year before you were injured.  For hourly employees, the highest three quarters of earnings are used to arrive at an aww.  If you were working two or more jobs at the time of your injury, then all of your earnings are to be used in calculating your aww.  Whenever you earn less than your aww as the result of your injury, then you are entitled to workers’ compensation disability benefits. 

If you not working at all and earning no wages, then you will be losing your entire aww and will be considered “totally disabled.”  If you are working in a reduced capacity and earning a lower wage, then you will be considered “partially disabled.”  If you are “partially disabled,” then you are entitled to disability benefits amounting to two-thirds of the difference between your aww and your current wage up to the maximum comp rate listed in the table below.  For example, if your aww is $800 per week, and your current wage is $400 per week, then you are entitled to weekly benefits of $266.67.  If you are “totally disabled,” then you will be paid workers’ compensation benefits as follows:

Year of injury

2011

2010

2009

Average weekly wage

$0.00
To
$476.66

}

90%

$0.00
To
$469.43

}

90%

$0.00
To
$464.43

}

90%

$476.67
To
$643.50

}

$429.00

$469.44
To
$633.75

}

$422.50

$464.44
To
$627.00

}

$418.00

$643.51
To
$1,287.00

}

66 2/3%

$633.76
To
$1,267.50

}

66 2/3%

$627.01
To
$1,254.00

}

66 2/3%

Max comp rate

$858.00

$845.00

$836.00

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When your employer (or its insurance carrier) accepts your injury, they are required to prepare paperwork setting forth your aww and what they intend to pay you.  If you do not agree with your employer’s calculations, then you have the right to challenge the same.  If you have further questions, you can call praetorian law.  We will never charge you a fee for an initial consultation.

How long will I receive workers’ compensation benefits?

Unfortunately, there is no single answer to this question as every injured worker has a unique set of circumstances that affects his or her workers’ compensation claim.  As a general guideline, if you are partially disabled then you can expect to receive a maximum of 500 weeks of partial disability benefits, or benefits for up nine years and thirty-two weeks.  If you are totally disabled then, theoretically, you can receive workers’ compensation for the remainder of your life.  In practice, persons who are “totally disabled” can expect employers (or, more often, the employers’ insurance carriers) to take active measures to have them reclassified as being “partially disabled.”

This said, it is important to remember that with few exceptions, your employer cannot just stop paying you workers’ compensation benefits.  In order to stop paying you benefits, your employer needs to either:

  1. Obtain your written consent;
  2. File a petition within the workers’ compensation office of adjudication and obtain an order from a workers’ compensation judge permitting your employer to stop paying you workers’ compensation benefits; or
  3. Provide you written notice that it intends to stop paying you workers’ compensation benefits that contains instructions on how to challenge their decision.  The most common form of notice issued by employers is a notice of suspension or modification.

In the following section, this booklet explains some of the steps an employer can take to eliminate or reduce the amount of workers’ compensation it is required to pay.  If you have further questions, please feel free to call praetorian law.  We will never charge you a fee for an initial consultation.

Tactics your employer may use to eliminate or reduce your workers’ compensation benefits

As mentioned above, if you are “totally disabled”—i.e., not working at all—then theoretically you can receive workers’ compensation benefits for the remainder of your life.  On the other hand, if you are considered “partially disabled,” then you are only entitled to receive workers’ compensation benefits for a maximum of 500 weeks.  Therefore, your employer’s insurance carrier will often attempt to have your disability status reclassified to that of “partially disabled” as soon as it can.  The two primary avenues insurance companies use to obtain such reclassifications are impairment ratings and earning power assessments.  In addition, your employer’s insurance carrier may try to prove that you have fully recovered from your injuries, allowing them to cease paying workers’ compensation benefits altogether if successful.  Each of these techniques is discussed in more detail below; however, because your employer needs medical evidence in its favor, the process of eliminating or reducing your workers’ compensation benefits generally begins with an independent medical exam.

I. Independent medical exams

In order to achieve a change in your disability status and to reduce the amount of your workers’ compensation benefits, your employer needs to obtain medical evidence in its favor.  If your employer cannot acquire the same from your treating physicians, then your employer may elect to send you to a doctor of its own choosing.  When your employer schedules such an exam, it is referred to as an independent medical exam (an IME).

How many times can my employer make me attend an IME?

In general, your employer can require you to attend an IME every six months or two times a year.  This is a general rule, and the workers’ compensation act grants wide discretion to workers’ compensation judges to control the number of exams an injured worker will be required to attend.  If your employer can demonstrate a genuine need for an additional exam, you could be required to attend more than two IME’s a year.  If your employer is scheduling the IME merely to harass you, then you may not have to attend even two exams per year.  That said, in practice, most workers’ compensation judges will permit employers to schedule two IME’s per year with little question.

What happens if I fail to attend an IME?

If you refuse to attend an IME, your employer can file a petition with the workers’ compensation office of adjudication that asks a workers’ compensation judge to order you to attend the same.  If you fail to comply with the judge’s order, then your workers’ compensation benefits will stop being paid until you attend the exam.  In addition, the period in which you refused to attend the exam will be deducted from the period in which you could receive workers’ compensation benefits.  For example, an injured worker can receive only 500 weeks of partial disability benefits.  If the same injured worker refuses to attend an IME after being ordered to attend the same by a workers’ compensation judge for 10 weeks, then that injured worker will only be paid 490 weeks of partial disability benefits.

If you have received a notice to attend an IME and do not want to attend the same, we advise you to speak with an attorney about your rights.  An attorney can advise you of whether the exam is unreasonable and whether you should attend the same or not.  Our law firm is available to answer your questions regarding IME’s, and we never charge a fee for an initial consultation.

What if attending the exam will cause me hardship or require me to miss work?

If your employer schedules an IME during a time that will cause you to miss work, your employer is required to reimburse you for your lost wages.  In addition, you employer also is required either to reimburse you for reasonable travel costs or to provide you with transportation to the exam.

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II. Impairment rating

Individuals who are injured after june 24, 1996 can be required to submit to a medical exam where a doctor will attempt to quantify the degree an injured worker is impaired as a result of his or her work injury.  This quantification comes in the form of a percentage and is called an impairment rating by the workers’ compensation act.  The doctor who determines an injured worker’s impairment rating is generally selected by the department of labor & industry, and the exam in which he does this is referred to as an impairment rating evaluation or as an “ire” in industry shorthand.

Whenever an injured employee’s impairment rating is found to be 49% or lower, the employer will attempt to reclassify the injured worker’s status to that of “partial disability.”  Although this reclassification will not reduce the amount of workers’ compensation benefits an injured worker receives, it will cut off that person’s right to workers’ compensation benefits after 500 weeks have passed—whether that person has returned to work or not.

How are impairment ratings determined?

The american medical association issues a set of guidelines entitled the american medical association guides to the evaluation of permanent impairment that purport to allow doctors to assign a percentage of impairment to injured individuals.  Workers’ compensation practitioners commonly refer to this book as “the guides.”  A perfectly healthy and uninjured person is deemed to have an impairment rating of 0% while a person in a coma and near death would have an impairment rating of close to 100%.

It is important to note that most injured workers will not receive impairment ratings of 50% or higher.  The impairment rating for paraplegia generally falls to around 75% whole person impairment.  A person who has lost one hand by amputation will have an impairment rating of just over 50%.  In comparison, it has been our experience that under the most recent edition of the guides, persons who have suffered herniated lumbar discs that required spinal surgery are receiving impairment ratings falling between 16% to 30%.

When can my employer send me to an impairment rating evaluation?

An employer can require you to attend an impairment rating evaluation once you have received 104 weeks of temporary total disability benefits.  That is once you have been off of work altogether for two years or more and you have received 104 weeks of workers’ compensation wage loss benefits, you can expect your employer to request an impairment rating evaluation.  In order for the 104 weeks to accrue, you cannot have worked at all.  Thus, if it has been 104 weeks since you began receiving workers’ compensation checks, but you worked light duty for 8 of those weeks and received partial disability benefits for lost overtime, your employer must wait an additional 8 weeks before requesting an impairment rating evaluation.

Most employers typically request ire exams within 60 days of an injured workers’ receipt of 104 weeks of temporary total disability benefits because they obtain certain procedural advantages by doing so.  If an employer waits until 61 or more days have passed since the injured worker received 104 weeks of temporary total disability benefits before requesting an ire, then that employer will be required to file a petition and prove before a workers’ compensation judge that the impairment rating is accurate.  If an employer acts within those sixty days, however, then the impairment rating will take effect automatically unless the injured worker proves to a workers’ compensation judge that it is inaccurate or otherwise deficient.

If your employer has requested that you attend an impairment rating evaluation, you should consult with an attorney.  Your employer is beginning a very serious process that can greatly affect your rights.  An attorney will be able to advise you as to whether or not you should attend the exam.  More importantly, an attorney will be able to ensure that none of your rights are lost.

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III. Earning power assessments

During the past few years, earning power assessments have grown in popularity as a tactic used by employers to reduce their workers’ compensation obligations.  Using this technique, an employer attempts to prove that there are a sufficient number of jobs in an injured worker’s geographical area that he or she can perform after consideration of his or her medical restrictions.  If an employer can establish that an injured worker has an “earning power,” then the injured workers’ compensation benefits will be modified whether he or she returns to work or not.  The following paragraphs explain this process in more detail.

I’ve been contacted by a vocational counselor who wants to meet with me.  What does this mean?

Your employer (or its insurance carrier) is beginning the process of conducting an earning power assessment.  Vocational counselors are hired by employers to determine if employment exists in the injured workers’ geographical area that the injured worker is capable of performing.  The vocational counselor will meet with you in order to obtain information regarding your education, skills, aptitudes, employment preferences and other vocationally related information.  The vocational counselor will then use this information to determine if you have an “earning power through job listings with agencies of the [department of labor and industry], private job placement agencies, and advertisements in the usual employment area.”  The vocational counselor reviews these sources to determine if any jobs exist for an injured worker and this is referred to as a “labor market survey.”  Many practitioners within the workers’ compensation system use the terms “labor market survey” and “earning power assessment” interchangeably.

Do I have the right to have an attorney with me during my interview with the vocational counselor?

Yes.  You have the right to have an attorney present at the vocational interview(s).

I’ve met with a vocational counselor who is now sending me job referrals.  Do I have to apply to these jobs?

Whether or not you should attempt to seek employment with these referrals is a complicated question that depends on several factors.  If you are receiving job referrals from a vocational counselor, then we recommend that you contact a workers’ compensation attorney who can evaluate your case and advise you of your rights.  Of note, if your employer has a job vacancy that you are capable of performing, then your employer must offer you this job prior to referring you to other jobs.  In addition, vocational counselors often use the work restrictions recommended by IME doctors and not the work restrictions recommended by your treating doctor.  Prior to seeking any form of employment, injured workers should consult with their treating physicians to determine if they can perform the job without causing harm to their bodies.  If you are a member of a union, then you may not have to apply to the referred jobs if taking such a job would cause you to lose substantial union benefits.

When considering whether to apply for such work or not, it is important to note that your workers’ compensation benefits can be modified even if you do not get the job.  Also, and more often than not, the jobs you are being referred to are not necessarily jobs that were as good as your last job.  Therefore, injured workers often find themselves in a situation where they have little to gain and much to lose when considering whether to seek employment with a referred job.  It is specifically for this reason that we strongly advise injured workers’ to seek legal counsel when they are asked to meet with a vocational counselor.  Our law firm is available to answer your questions and we never charge a fee for an initial consultation.

I’ve received a report from the vocational counselor that says I am capable of earning some amount of money each week.   What happens now?

The vocational counselor’s opinion of what you are capable of earning is his or her earning power assessment.  Your employer (or its insurance carrier) will use this report as the basis for filing a petition to modify workers’ compensation benefits with the workers’ compensation office of adjudication.  After receiving a petition to modify workers’ compensation benefits, you should expect to receive notice that your workers’ compensation case has been assigned to a workers’ compensation judge and that a hearing will be scheduled in the near future.

Be sure to review your employer’s petition carefully.  Of primary importance, you should ascertain if your employer has made a request for “supersedeas.”  Generally, it will take at least several months for a wcj to make a decision on whether your benefits should be reduced or not.  When your employer makes a request for supersedeas, your benefits can be reduced much earlier.  Your employer has started a very serious legal process that can greatly affect your rights under the workers’ compensation act.  If you have not done so already, you should consult with an attorney in order to protect your rights.  If you have further questions, please feel free to call praetorian law.  We will never charge you a fee for an initial consultation.

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IV. Petition to terminate workers’ compensation benefits

As stated above, employers are only required to pay workers’ compensation benefits to persons who are disabled as a result of their work-injury.  Under pennsylvania’s workers’ compensation act, if you have “fully recovered” from your work injury, then you will not be considered disabled as a matter of law and your employer will not be required to pay you benefits—even if you have not returned to work.  Employers attempt to prove a person has fully recovered from their injury by filing and prosecuting a petition to terminate workers’ compensation benefits.

How will my employer begin the process of trying to terminate my workers’ compensation benefits?

Typically, your employer will begin the process of terminating your workers’ compensation benefits by having you attend an independent medical exam (ime).  As mentioned above, once your employer or its insurer has accepted liability for your injury, the purpose of all future IME’s will be to obtain a medical opinion that your employer can use as evidence in a legal proceeding to reduce the amount of money they will have to pay to an injured worker.  When your employer receives an IME report that states you have fully recovered from your injury, your employer’s insurance carrier often will initiate litigation to cease paying you workers’ compensation benefits altogether.

Often, your employer will send you a notice of ability to return to work (nartw) or a physician’s affidavit of recovery informing you that you have been released to full-duty employment prior to commencing litigation.  If you have received such a notice and do not agree that you are fully recovered, then you should speak with an attorney about your rights.   Receipt of a nartw indicating that you can return to full-duty employment is a strong indication that your employer will attempt to reduce or eliminate your workers’ compensation benefits.

How can my employer argue that I have fully recovered from my injury when I am still in pain?

Unfortunately, the existence of pain does not preclude your employer from filing a petition to terminate workers’ compensation benefits.  Injured workers’ complaints of pain or disability are most often ignored in the following two situations.

  1. His or her injury has not been fully recognized by his or her employer.  For example, many injuries are accepted by employers as a “sprain/strain” of the affected body part even though the actual pathology is more severe.  At a later date, some employers will take the position that the more severe (and unrecognized) condition is not related to the injured workers’ employment. 
  2. He or she subsequently developed a disabling condition such as complex regional pain syndrome that has not been formally recognized by his or employer.

As a result, your complaints of pain will be acknowledged by your employer and then dismissed as irrelevant.  When this happens, injured workers’ find themselves having to litigate injuries many months to years after they occur.

I’ve received a petition to terminate workers’ compensation benefits in the mail, what happens now?

Your employer’s petition is going to be assigned to a workers’ compensation judge (wcj).  You will receive a letter from the department of labor informing you of which wcj your case was assigned to along with the judge’s address.  any where from a few days to a few weeks later, you will receive notice that a hearing has been scheduled and informing you of the time or place.

Be sure to review your employer’s petition carefully.  Of primary importance, you should ascertain if your employer has made a request for supersedeas in its petition.  Generally, it will take at least several months for a wcj to make a decision on whether your benefits should be terminated.  When your employer makes a request for supersedeas, your benefits can stop being paid much sooner.  If you have received a petition to terminate workers’ compensation benefits, you should consult with an attorney in order to protect your rights.  If you have further questions, please feel free to call praetorian law.  We will never charge you a fee for an initial consultation.

Specific loss and disfigurement benefits

In addition to providing injured workers with wage loss benefits and medical care, workers compensation provides benefits to persons who have been scarred or have lost the use of certain body parts, including their hearing, as the result of their employment.  The workers’ compensation act refers to claims of this type as claims for “disability resulting from permanent injuries.”  Workers’ compensation practitioners, however, refer to these claims as “specific loss” claims because the nature of the injury as well as the amount of compensation to be paid is specifically provided for by the workers’ compensation act.

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How much compensation am I entitled to if I lost a part of my body or the use of a part of my body as the result of a work injury?

If a part your body has been amputated as the result of a work injury, or if you have lost the use of a body part for all practical intents and purposes, then you will be paid a certain number of weeks of workers’ compensation benefits.  The following table identifies the body parts for which you can receive specific loss benefits as well as the number or weeks to be paid for the same.

 

Specific loss number of weeks

 

Healing period

Arm

410

 

20

Leg

410

 

25

Forearm

370

 

20

Lower leg

350

 

25

Hand

335

 

20

Eye

275

 

10

Foot

250

 

25

 

 

½ awards

 

Fingers:

 

 

 

     Thumb

100

50

10

     Index

50

25

6

     Middle

40

20

6

     Ring

30

15

6

     Little

28

14

6

 

 

 

 

Toes:

 

 

 

     Great

40

20

12

     Any other toe

16

8

6

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If you miss work due to the loss of any of the above-listed body parts, then you will be paid for compensation benefits for your healing period up to the maximum listed in the last column.  The healing period is paid in addition to the specific loss benefits.

What kinds of scars or disfigurements are covered by workers’ compensation?

Workers’ compensation provides benefits for scars and other disfigurements of the head, face and neck.  Even small scars can be compensable.  Disfigurement can include scars, indentations, changes in skin color, hair loss, or any change to the appearance of your head, face or neck.

There is no set formula to determine the amount of compensation you will receive for a disfigurement.  A workers’ compensation judge has discretion to award anywhere from 0 to 275 weeks of compensation, depending on the nature and degree of disfigurement.

If i’ve suffered a loss of hearing as a result of my job am I entitled to workers’ compensation benefits?

Yes.  If the volume of noise in your place of work has caused you to suffer a hearing loss greater than 10% in both ears—i.e., a binaural loss of hearing—as defined by the american medical association guidelines to the evaluation of permanent impairment, then you are entitled to workers’ compensation benefits.  In order to qualify for these benefits, you must have been exposed to continuous loud noise during the three years preceding the date you file a claim.

Workers who have suffered a compensable loss of hearing will be awarded 2.6 weeks of workers’ compensation benefits for each percentage point of binaural hearing loss.  Fro example, a binaural hearing loss of 30% would entitle an injured worker to 78 weeks of workers’ compensation benefits.

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This FAQ guide offers a general summary of Pennsylvania’s Workers’ Compensation Act and is not intended to replace or supersede the advice of a licensed attorney.  If you have specific questions regarding workers’ compensation or another legal matter, please feel free to contact Praetorian Law Group, LLC.  We never charge a fee for initial consultations.

An administrative system takes place under the executive branch of the government, as opposed to the judicial branch—i.e., the courts.  The governmental authority of the United States is divided between three separate and equal branches:  the legislative, responsible for creating law; the executive, responsibility for enacting and enforcing the law; and the judicial, responsible for deciding the law as applied to a particular dispute.  In Pennsylvania, workers’ compensation is administered by the Department of Labor, a component of the executive branch of government that reports to the Governor.  In most instances, injured workers do not have access to actual courts until they have exhausted their “administrative” appeals.

Upon receipt of a Notice of Assignment to a Workers’ Compensation Judge, parties to workers’ compensation cases generally have twenty (20) days to file an answer to the petition to the assigned WCJ.  In limited situations, failure to file an answer within twenty (20) days can impair the party’s rights under the Workers’ Compensation Act.

Upon receipt of a Notice of Assignment to a Workers’ Compensation Judge, parties to workers’ compensation cases generally have twenty (20) days to file an answer to the petition to the assigned WCJ.  In limited situations, failure to file an answer within twenty (20) days can impair the party’s rights under the Workers’ Compensation Act.