Workers’ Compensation

Your Rights

While you are off work and under the active care of a doctor you are entitled to a weekly check of temporary "off work" benefits. The law establishes how much the check your employer or their insurance company must pay to you while you are off work and under the active care of a doctor. The amount of the check depends on your date of injury. Following is a schedule as to what the maximum amounts are which can be paid. Of course your wages may not entitle you to the maximum; however, you can determine the amount of your weekly check by multiplying your average weekly gross wages by 70%.

Injury before September 1, l992: The check should be 2/3 (two-thirds) percent of your average weekly wage up to a maximum of $246.00 per week.

Injury between September 1, 1992 and October 31, 1993: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $277.00 per week.

Injury between November 1, 1993 and December 31, 1994: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $307.00 per week.

Injury between January 1, 1995 and December 31, 1995: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $368.00 per week.

Injury between January 1, 1996 and October 31, 1996: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $409.00 per week.

Injury between November 1, 1996 and October 31, 1999: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $426.00.

Injury between November 1, 1999 and October 31, 2002: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $473.00.

Injury between November 1, 2002 and October 31, 2005: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $528.00.

Injury between November 1, 2005 and October 31, 2008: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $577.00.

Injury between November 1, 2008 and October 31, 2011: The check should be 70 (seventy) percent of your average weekly wage up to a maximum of $683.00.

The benefits you receive from workers' compensation are NOT subject to any state or federal withholding taxes. You do not need to report this money when filing a tax return. If this office's efforts result in the insurance company starting these benefits, then the law entitles the attorney to a ten percent fee for those services. If you are already receiving these weekly "temporary" benefits then there is not an attorney fee on these off work "temporary" benefits.

Remember, to receive and continue to receive these "temporary" benefits you must remain under the active care of a physician, who is of the opinion you should be kept off work because of the on the job injury AND who is of the opinion that the treatment you are being provided is continuing to improve your condition. If your injury falls into the soft tissue category, there may be only a very short period of TTD allowed and it may be terminated automatically. Once you have reached maximum medical improvement the insurance company can be allowed to stop these "temporary" off work checks.

The law does not require for the employee to be paid for the first three calendar days missed from work while under the doctor’s care. The entire time you are under the doctor's care you are entitled to be reimbursed for mileage and prescriptions (see additional information below).

The employer or insurance company does not always voluntarily start paying your "temporary" off work benefits. They may believe they have a defense, for example they may be of the opinion you are able to work or that your injury did not happen on the job. Insurance companies are sometimes very quick to claim they have a defense, so they will not have to pay benefits immediately.

It is my experience that in most cases after the Court hears the testimony, the appropriate workers' compensation benefits are awarded to the employee. If you are not already receiving off work benefits and they are in fact due please be advised one of the first things we will do is begin working on getting these "temporary" off work benefits if they are appropriate to your situation.

Sometimes the parties must still have a hearing on your receiving these benefits. The hearing can take up to 60-90 days from the day the request is filed to be set by the Court. Once I get your medical records I will file a request with the Court for a hearing. While we are awaiting the Court date, we will make every effort to convince the insurance company to start your off work benefits back to the first day they should have started voluntarily without the necessity of a court hearing. This system is overcrowded and often insurance companies are understaffed; therefore, your patience in getting the initial off work benefits started remains appreciated.

MEDICAL TREATMENT

You are entitled to "reasonable and necessary" medical treatment. The Court can order your employer or their insurance company to pay the physicians reasonable and necessary medical treatment directly related to your injury. There are various rules that the law has imposed as to what is "reasonable and necessary" medical treatment. There are also very specific procedures to follow when changing physicians and they vary according to when your date of injury occurred. Most importantly, an injured worker cannot change doctors without prior approval by the insurance company or Court. Please keep this office advised if you receive either a full or light duty release from any doctor, a referral to another doctor, or if you do not feel like you are responding well to the treatment you are being provided.

MILEAGE REIMBURSEMENTS

The law provides that the insurance company must reimburse you at the statutory rate per mile whenever you travel outside of the city limits within which you live to see a doctor for treatment or a doctor for the insurance company. They do not have to pay mileage for any doctors this office may send you to for a disability report or for any travel expenses you may incur in attending a deposition. The insurance company pays city limit to city limit according to the State Highway map figures. If you travel over 100 miles I would also include a request for a meal allowance.

ONCE RELEASED

At this point, since your condition is no longer considered a "temporary" one (the doctor has improved your condition as well as he can) your weekly checks will stop. At this point our office would have you examined by a physician for his opinion as to your "permanent partial" disability benefits or we will ask to court to schedule such an exam. Once that physician's report is received, we will file a request for a hearing before the Workers' Compensation Court. The hearing is for the purpose of the Court determining the extent of "permanent partial" disability the employee still has from the injury even though the employee has received medical treatment.

Neither doctors nor medicine are perfect and sometimes even though the doctor tries tests and provides treatment they cannot completely solve the problem. The problems which remain are what the law refers to as "permanent partial" disability benefits.

Recent changes in the law limit the amount of permanent disability that can be awarded but ultimately it is a decision for the Workers' Compensation Court to make concerning whether or not you are entitled to permanent partial disability. Your employer's insurance company may have you examined by a physician of their choice prior to that same hearing. The court gives the parties approximately 30 days notice of an upcoming hearing.

SETTLEMENT

On the Court date, either a hearing or a out of court settlement will be held. If we have a hearing with the Judge determining the extent of your partial disability benefits, then the Judge will review the medical reports supplied by the parties, listen to your testimony regarding your present problem and will issue an Order as to how many weeks of "partial" disability benefits you will receive beyond the "temporary" benefits you received while off work under the active care of the doctor.

The Court will issue an order as to the final determination normally one to two weeks following the hearing. Our office will provide you with a copy of the Court's order as soon as it is received from the Court. There will be an attached letter further explaining the Order itself.

The Court will order a 20% attorney fee on the partial disability benefits. Normally, this office may also have additional expenses that were incurred to get your case prepared for trial. This could include the charge submitted by the physician who examined you at the request of my office for the purpose of a disability report, any charges submitted by the doctors who have treated you for supplying the medical records from their office files, or any cost incurred if questioning of the insurance company's physician becomes necessary. This office will pay all of these expenses initially and then you can reimburse these litigation expenses once we enter into a settlement of your claim.

RETURN TO WORK

The law provides that any person who is receiving the "off work" checks or TTD (temporary total disability) benefits from an employer or its insurance carrier has an obligation to promptly report in writing any change in material fact or change in the amount of income the person is receiving or any change in the person's employment status which occurs during the period of receipt of such benefits.

What this means is if while drawing these "temporary" benefits you return to any type of employment then you should notify my office, in writing, immediately. It is a crime to receive temporary total disability checks while you are working. These are the monetary amounts normally received initially after the injury. The other benefits or partial disability that you receive after a court hearing can be received even though you are able to work. It is only a crime to receive "temporary total" disability benefits and work for wages.

Of course, once your physician has released you to return to work we do encourage you to attempt to do so. Once released, it will not hurt your compensation claim if you are able to find any type of work either from your same employer or a new employer. Even though the physicians may be of the opinion you have some "partial" disability that does not mean that you are totally prevented from seeking employment.

By all means, wait until your treating physician releases you or advises you that you can look for work before doing so. The physician may want to continue to see you even though he has released you to look for work or return to work in a limited capacity. This is permitted.

The Workers' Compensation Act does provide for benefits concerning retraining into another field or job placement. You may want to get started on retraining while you are still drawing the weekly "temporary" checks. Once you advise this office as to the potential need for retraining, we will be glad to send you more information as to what the law provides or discuss the same with you by phone or in person. The retraining benefit must be requested with the Court within 60 (sixty) days of your final hearing or you have waived any rights you might be entitled to regarding retraining.

We would be happy to assist you with any on the job injury related matter. Feel free to speak to Brandon J. Burton, T.R. Banks, or Athlea Adkisson regarding any workers compensation issue. We’re here to help!