TO WHAT TYPE OF BENEFITS AM I ENTITLED?
If the injured worker meets his burden and proves that he does have a compensable work injury he may have the following six key benefits:
1. Lost wages. The legal term for lost wages is temporary total disability benefits: These benefits occur when an employee is taken totally out of work by his doctor. A worker is entitled to two-thirds of his pre-injury average weekly wage for a maximum of 500 weeks (9 ½ years). This does not mean you will get 500 weeks. What it means is that if the doctor keeps you out of work up to 500 weeks you will be able to receive two-thirds of your average weekly wage. What the doctor says goes. It does not matter if the insurance adjuster thinks you can work or if you believe you cannot work, the doctor determines whether or not you can be deemed totally out of work. The average weekly wage is determined by the last 52 weeks of employment. It includes bonuses, overtime, uniforms, meals, etc.
Temporary total disability starts when an employee has been taken out of work for at least seven days. Once an employee is out of work for 21 days, he will also be reimbursed for the first seven days as well. There are many pitfalls with temporary total disability. In general, for most injuries, 9 1/2 years will be sufficient time. The unfortunate event occurs when an individual may never return to work and 9 1/2 years will definitely not be a sufficient amount of time to get lost wages.
If the doctor says you can work light duty and you’re not able to make the amount of money that you were making before the injury, you get 2/3rds of the difference between your pre-injury average weekly wage and your post injury wage. You can also get cost of living adjustments (COLA) each year. This might seem like a small amount of money. However, I was contacted by an individual who had been on workers’ compensation for eight years and had never received COLA. When she did get her past years’ cost of living adjustment, it was over $20,000. That was money she could have used to make ends meet during that time frame, but since she had never asked, the insurance adjuster never told and she did not receive her cost of living adjustments. In the appendix, I have a cost of living adjustment form for your use. The only limitation to the cost of living adjustment is that the injured worker cannot also be receiving Social Security disability. Social Security gives cost of living adjustments also, so you would not get both a workers’ compensation cost of living adjustment and a Social Security disability cost of living adjustment.
2. Medical benefits for your injury. The employee is entitled to lifetime medical benefits as long as the treatment is related to the original work injury and the treatment is deemed reasonable and necessary by the treating physician. To get a treating physician, your employer must provide you with a panel of three physicians from which to choose. If they do not provide you a panel within a reasonable period of time or your employer denies your workers’ compensation claim, you can choose your own treating physician. It is horrible that a valid claim may be denied, but the only blessing may be that you get to choose your own treating physician. Many unscrupulous insurance adjusters put physicians on their panels whom they know will be more in favor of the employer and the insurance company than the injured worker. The issue of providing a panel within a “reasonable time” is very difficult to figure out and really just depends on the severity of the injury. Many times employers and insurance companies deny medical benefits, saying that the medical treatment is not related to the accident. This happens often with back injuries. Many times, people may have had sore backs prior to a significant accident at work. The insurance company may try to say that the back surgery is due to these prior minor injuries and not due to the current work accident. It is important to know that aggravations of pre-existing conditions are covered under workers’ compensation. This means that even though you may have prior back issues, if you have an accident at work that aggravates your back, you will be able to get medical treatment for it. The problem comes with employers and insurance companies trying to say that the accident was not significant enough to cause any aggravation to your prior injuries. Therefore, it’s very important when you talk to the physician to make sure you are very clear with him so your injury is documented correctly. Medical benefits include all medical treatment for the injury. This includes prescriptions, mileage, and medical equipment. There are no co-payments. You are entitled to mileage to and from physical therapy, to and from the doctor, to and from hospitals for diagnostic tests, and any medical treatment. As of 2009, mileage is 50.5 cents per mile. In the appendix, I have attached a sample mileage chart to help you collect your mileage benefits.
3. Loss of use of a body part. The legal term is permanent partial disability benefits. When an employee permanently loses the use or partial use of a body member, he’s entitled to permanent partial disability benefits. The neck and the back are not covered; however, many times if you have a back injury you may have problems with your legs, or if you have a neck injury, you may have problems with your arms. Then, you would get a disability rating to those body parts. As I said before, there is no money for pain and suffering but this benefit is somewhat like getting reimbursed for pain and suffering since you are being compensated for the permanent loss of range of motion. It is calculated by a standard math formula. It is the rating your doctor gives you for the loss of use of the body part member, multiplied by two-thirds of your average weekly wage, multiplied by a certain number of weeks, depending on the body part being rated. In the appendix, I have attached the number of weeks for each body part. As an example, let’s say you have a 10 percent loss of use of your right leg due to a knee injury and before the accident you made $1,000 a week. The formula would be: .10 x $666.67 x 175 weeks, which equals $11,666.73. Several things must occur before you can get permanent partial disability benefits. First, your doctor has to say that you’ve reached maximum medical improvement. This basically means that there is nothing more he can do for you and you’re not going to get significantly better than you already are as of that date. The next thing is that your workers’ compensation treating physician has to give you a disability rating to your body part that has been injured. Usually, this is done by the doctor referring you to a physical therapist to have a Functional Capacity Evaluation (FCE). Once the FCE has been completed and the physical therapist drafts a report, it is submitted to your doctor, who either approves or disapproves of the rating that the physical therapist has given. Next, the insurance company needs to agree that it is the appropriate rating and agreement forms will be created for your signature in order for you to receive your benefits. It is split up into weekly payments just as your temporary total disability benefit check. You cannot receive a temporary total (lost wages) check and a permanent partial disability check at the same time. Thus, what normally happens is that the employee is released to full duty, which stops the temporary total check, and at that point he would begin receiving his weekly checks of permanent partial disability benefits. However, if requested, the employee can ask the insurance adjuster to receive the permanent partial disability benefits in a lump sum. However, this is done at a cost. Usually, insurance adjusters request a 10 percent discount to give you your permanent partial disability benefits in one lump sum. I normally do not recommend my clients to go this route. Many times, you may receive your workers’ compensation check in a lump sum anyway, simply due to the passage of time trying to get the paperwork straight. In the above example, if paid weekly, it would only be 17 ½ weeks (4 months). I do not think it is worth $1,166.67 to get the money within the month versus spread over four months.
4. Vocational rehabilitation. Once the doctor states that you may return to some form of light duty work, the insurance company may begin vocational rehabilitation. There are two goals of vocational rehabilitation. The first goal is to restore the employee to some form of employment and the second goal is to relieve the employer’s burden of future compensation. The goal is not to find the employee a meaningful job, a convenient job, or a job that he would want. It is not an opportunity to go to college. It is solely to save the insurance company money. To me, vocational rehabilitation is not a benefit to the employee but rather a benefit to the insurance company. It is usually better for employees to find their own employment. The Virginia Workers’ Compensation Commission’s vocational guidelines are in the appendix.
5. Death benefits. If an employee dies as a result of his job, his dependents may be entitled to funeral expenses and two-thirds of his average weekly wage up to 500 weeks. If there are multiple dependents, such as a wife and children, the weekly benefit is divided equally. If a widower or widow remarries, then his/her benefits are terminated. When a child turns 18, his or her benefits are terminated. Before these events occur, it may be best to talk to an attorney to discuss settlement options.
6. Lifetime benefits. In some very serious situations, an injured worker may be able to get permanent total disability benefits. The employee must have permanently lost the use of both hands, both arms, both feet, both legs, both eyes, or a combination thereof, or suffered any injury that results in total paralysis or a brain injury which is so severe that it leaves the employee permanently unable to find gainful employment.
Excerpts from Michele Lewane Book titled “Ultimate Guide to Workers’ Compensation in Virginia” Available at www.injuredworkerslawfirm.com