FIVE TIPS TO Consider & FOUR DIRTY TRICKS TO Beware of in Workers’ Compensation Claims

FIVE TIPS

Tip #1 – Immediately report your injury.

Report your injury to your supervisor or manager immediately, regardless of whether or not you think you will need medical treatment. Ideally, it would be best for your supervisor to write a written accident report and for you to get a copy of that report. Many jobs are physically demanding and with many jobs you have aches and pains every day. However, if you think it’s a minor injury that will go away in a day or two and you don’t report it and it ends up not being a minor injury, then you have given the insurance adjuster an opportunity to deny your claim and make you fight for your benefits at a hearing in order to resolve the issues. This happens often with back injuries when you may feel a little twinge when you lift a box but continue to work and by the next day you can’t even get out bed because you’re in such pain. If you had reported it when it occurred, even though it was minor, they would not be able to contest it. You must give your employer 30 days notice of any accident but immediately is best.

Tip #2 – Protect your rights.

How do you best protect yourself? Get an Award order by filing a claim for benefits. You may file a claim for benefits either by writing a simple letter, by filling out the claim for benefits form provided by the Virginia Workers’ Compensation Commission, or by filing online at http://www.vwc.state.va.us. Even though I use letter form to file claim for benefits for my clients, I recommend to injured workers who do not have an attorney to use the claim for benefits form (a sample is in the appendix). To fill the form out, you need to have the employer’s name and address. The most important part of this form is “parts of your body injured.” You MUST list ALL the body parts injured specifically. A shoulder is not an arm. A neck is not a shoulder. A head injury is not a brain injury. If you do not list the body part specifically, then they do not have to provide medical treatment for that body part. Overkill is best. Even if the body part doesn’t need medical treatment currently, if it was injured during the accident, list it. You also need to list the specific date of injury and your average weekly wage per week. If you don’t know whether the insurance adjuster is accepting or denying your claim at this point or you believe they are accepting your claim, that’s all you fill out and then you mail the form to the Virginia Workers’ Compensation Commission. At that point, they will contact the insurance adjuster and require them to fill out forms that will generate the Award order that you need. If you know they are already denying part of your claim, under Part B you want to check the various items that are in dispute and what you are seeking: medical benefits, lost wages or partial lost wages, or permanent partial disability benefits (when a doctor has given you an impairment rating to a body part when you have lost range of motion). You can also use this form if your situation changes and you have what’s called a Change in Condition, or to request a hearing on the various items that are under Part B.

Tip #3 – Keep the medical records straight.

What do you need from your doctor? Two very important things: First, make sure he describes your work accident accurately in his notes. Once he is considered your workers’ compensation treating physician, any opinion he has regarding your medical treatment and cause of injury is given great weight. So, make sure he has accurate information about how the accident occurred. If you feel he is rushing and doesn’t understand, ask him point blank, “Do you understand what happened to me?” Doctors are human and they make mistakes in their note taking. Tell the doctor about the specific incident that happened at work. Second, always get a disability slip at each doctor appointment, whether he has you out of work or has you on some type of work restrictions. You should never leave the doctor’s office without having a disability slip. Usually, doctors will make the disability slips from one doctor appointment until the next. If your doctor’s appointment gets postponed, I would suggest you call the doctor’s nurse and get your work status extended. It is extremely important to make sure your attorney and your employer, always have a copy of your current disability slips, and that you keep a copy for yourself. If the doctor has released you to work (such as light duty, not lifting over 10 pounds), and your supervisor asks you to lift something that’s 20 pounds, you would have the documentation to prove that you are not allowed to do it. The important thing is to remember not to violate the work restrictions. Everybody has to abide by what the disability slip says. If the doctor says you’re out of work then you, your employer, and the insurance company are stuck with you being out of work. If it says you are released to full duty then you, the employer, and the insurance company are stuck with you being released to full duty. If the doctor says you’re released to some form of light duty then everyone is stuck with light duty. Many employers make the injured worker feel guilty and put pressure on them to do their “fair share” and violate the doctor’s work restrictions. If you violate your restrictions because your supervisor told you to lift an item heavier than your restrictions, and you are further hurt, you risk your benefits being cut off. You disobeyed your doctor’s orders. Talk to a lawyer if you get into this type of situation.

Tip #4 – Get your mileage reimbursement.

Currently, an injured worker can get mileage to and from medical treatment. Sometimes, injured workers may think it is too much paperwork only to get 50 ½ cents per mile reimbursed. However, there is a very easy way to do it. After you’ve accumulated some mileage, you simply call the medical provider’s billing department and request the bill payment history. Insurance adjusters won’t accept appointment cards, etc. because it does not “prove” that you were actually at the doctor’s office on that day. So, the easiest way is just to get the bill payment history. Then, you go online to MapQuest. If you don’t have access to the internet at home, you can go to your public library and go to MapQuest. Type in your home address, or work place if that’s where you were before you went to your doctor’s appointment, and type in the doctor’s office address. This will give you the exact mileage. Remember to double the mileage since it is a round trip. This way, you don’t have to count your miles every time or press the odometer every time you go back and forth to the doctor. If you have never requested mileage reimbursement, you can go from the date of your accident forward. You can use the sample mileage chart in the appendix. Attach the bill payment history to the mileage chart, make a copy, and mail it to the insurance adjuster. If you have not received your mileage reimbursement within three weeks, I would recommend calling and confirming that they had received it and they are processing the request.

Tip #5 – Get your cost of living adjustment.

It’s a strange calculation as to when someone is eligible for COLA so many people do not request it, which can cost them a lot of money. Once, I got COLA for a client that exceeded $20,000 from previous years, plus an increase in her current weekly check by several hundred dollars. COLA is a cost of living adjustment that happens every year. In theory, if you’re completely out of work and receiving workers’ compensation for a while, you can request it by filling out the form, which I have included in the appendix. You simply go to your local Social Security office, have them confirm that you are not receiving Social Security benefits, mail the form to the Virginia Workers’ Compensation Commission, and you can get the cost of living adjustment. If you are on Social Security disability, you cannot get a cost of living adjustment because there is no “double dipping.” Social Security gives you the cost of living adjustment. If you haven’t received the cost of living adjustment for several years, you need to have a form filled out by the Social Security Administration for each year in order to get your adjustment. The trick is figuring out when you are eligible for the cost of living adjustment. You can receive your cost of living adjustment effective October 1st of each year if you are on an outstanding award and the accident occurred before July 1st of that same year. This means that someone who was injured on June 30 will be able to receive a cost of living adjustment as soon as October 1st (three months). Someone who was injured July 2 will not be able to receive benefits until October 1st of the following year (15 months).

FOUR DIRTY TRICKS

The insurance company is experienced at trying to save money and denying claims. Here are a few of the dirty tricks that I find the most appalling.
Dirty Trick #1 – Insurance adjustors voluntarily pay you some benefits.

You might ask what’s wrong with the insurance company doing what they are supposed to do? What’s wrong is that they do it in order to catch you unaware and then you are in danger of permanently losing your benefits. Many times, insurance adjusters will voluntarily make payments and will never inform the claimant of the fact that that if they don’t file a claim for benefits form and get an Award order, they will quit paying them when the statute of limitations runs, which is two years from the date of injury. This is part of their “don’t ask, don’t tell” policy. This occurs with entire claims and it also occurs with specific body parts. Here is an example. You have a shoulder and neck injury but the paperwork only lists your neck. The insurance company pays for your shoulder and neck medical treatment and after two years they stop your shoulder treatment. You are out of luck because every body part must be listed in the paperwork within two years of the accident for them to have to pay it. What bothers me so much about this is that most people don’t want to “file a lawsuit” or “sue” their employers and they think a claim for benefits is filing a lawsuit against their employer. They don’t understand that it is a requirement. The problem is that the insurance companies know this about hard working, loyal employees, and take advantage of these individuals who don’t want to make waves and want to get back to work as quickly as possible. The number of times people have come to me with this problem breaks my heart, because there is nothing I can do for them at that point.

Dirty Trick #2 – Insurance adjustors record your statements.

Another trick is requiring a recorded statement from you before you get paid or get medical treatment. The insurance adjusters will call you immediately, usually within two to three days of the accident, and ask to talk to you about the accident and if they can record your statement. This sounds innocent enough. However, the reason they do this is so that they can hold you to whatever you say during that initial call; even though you may still be in the hospital or on strong narcotics. You will be held responsible for what you say in that recorded statement. This is appalling to me because, while you are under extreme stress from an injury, possibly on narcotic pain medications, and just wanting to get your benefits, the insurance adjustor, as the experienced interrogator, will ask you questions and lead the questioning down a path that could prevent you from getting any workers’ compensation benefits at all. They seem “helpful” and friendly but they are hoping to find any loophole to deny your benefits. Here is an example. One of my clients fell off a stepladder at work. While most people would think falling off a ladder at work would be covered under workers’ compensation, it is not. There has to be unique circumstances surrounding falling off the ladder. Since you could fall off a ladder, fall down stairs, or trip and fall at home or someplace else just as easily, workers’ compensation won’t cover it. In this case, during the recorded statement, the adjustor said, “My goodness, I guess it happened so fast,” and my client said, “Yes.” She said, “I guess you did not know what was happening.” He said, “Yes.” She was basically trapping him to say he did not know how he fell off the stepladder. Through interrupting him and distracting him, she got him to say exactly what she needed for his case to be denied. Luckily, there was a portion of the statement where he did say that the ladder was a little unbalanced and had rocked beforehand. Luckily, he told his doctor when he first went to the doctor that the ladder was on uneven pavement and was rocking and he had tools in his hand and that’s why he fell. Also, during recorded statements when you’re telling your story, the insurance adjuster will interrupt you so that you are only answering the questions they want to hear the answer to. Their goal is not to understand your situation or to give you benefits. Their number one goal with the recorded statement is to find any loophole through which to deny benefits. This is why I usually recommend not to give recorded statements.

Dirty Trick #3 – Insurance adjustors hire private investigators.

Another dirty trick of insurance adjusters is to hire private investigators to follow injured workers. They do this in contested claims and they do it in uncontested claims. They’re trying to find out if the injured worker is working, is not following the doctor’s work restrictions, or is capable of doing more than what has been ordered by the physician. They also have gone to neighbors’ homes and asked questions. They also will follow you but only record the five seconds that APPEAR to be violating your work restrictions and show the recording out of context. I always advise my clients to be very cautious of who they speak to and what they do in public. It’s not that they are doing anything wrong, but the appearance or suggestion that they’re doing something wrong will give the insurance adjuster an opportunity to cut off benefits.

Dirty Trick #4 – Insurance adjustors want you to sign forms with wrong descriptions of injuries and wages.

Whether you should sign the papers sent to you by the insurance adjuster is somewhat complicated. Yes, the agreement forms need to be signed by everyone and sent to the Commission so an award can be entered. There are two tricks the insurance adjusters play with agreement forms. First, they will have you sign the form and mail it back to them, and then they will hold onto it, never submitting it to the Virginia Workers’ Compensation Commission. So you are never under an open award, which gives insured workers several advantages. The second trick is that they will not list every body part on the forms. When they don’t list all the body parts and you sign off on it, you are agreeing that only your neck is hurt and not your neck and shoulder. This may seem minor but it’s the crux of a lot of litigation. The second part of the form that is usually incorrect is the average weekly wage. Many times insurance adjusters will simply take the employer’s word at what your average weekly wage was and put it down. This is not the accurate way to do it. The accurate way is to have them calculate your average weekly wage with a 52-week wage statement. When this is done, all your bonuses and all your overtime is included into your average weekly wage, which gives you a higher compensation rate. Your compensation rate determines your lost wages and your permanent partial disability benefits. So it’s important to have the correct amount—and obviously at the highest amount. Alleging a “mutual mistake” can sometimes fix the average weekly wage problem, but not having all the body parts listed can never be fixed after the statute of limitations has run.

2016-10-30T13:43:25+00:00

About the Author:

The Injured Workers Law Firm is a Richmond, Virginia based firm solely focused on serving clients with workers' compensation claims in Virginia. If you have questions about your benefits or if you would like more information on the Virginia Workers’ Compensation system, order our book, “The Ultimate Guide to Workers’ Compensation in Virginia” , or call our office today (804) 755-7755.