Don’t Be the Strong Silent Type: How to Talk to Your Doctor to Ensure Your Rights are Protected Following a Work-Injury
November 20th, 2018|
If you read my first blog, you will recall that two things I am very fond of are pop culture and stories. One of my favorite all-time pop culture phenomena is the acclaimed HBO original series, The Sopranos. I think I have watched the series in its entirety at least three or four times. Anyone who is familiar with the series knows, Tony Soprano, the anti-hero lead character and mob boss extraordinaire spends a lot of time in therapy session with his psychiatrist following panic attacks and bouts of anxiety. No doubt, those symptoms are related, at least in part, to his Tony’s work as a career criminal, but that’s not why I bring up the reference.
I often find myself thinking about a bit of dialogue between Tony and his psychiatrist, Dr. Melfi in the very first episode when I advise my clients about how to communicate with their doctor following a life changing work injury. Struggling with the fact that he has to open up to his doctor in order to get to the root of his problems in therapy Tony says the following:
Tony Soprano: Let me tell ya something. Nowadays, everybody’s gotta go to shrinks, and counselors, and go on “Sally Jessy Raphael” and talk about their problems. What happened to Gary Cooper? The strong, silent type. That was an American. He wasn’t in touch with his feelings. He just did what he had to do. See, what they didn’t know was once they got Gary Cooper in touch with his feelings that they wouldn’t be able to shut him up! And then it’s dysfunction this, and dysfunction that, and dysfunction vaffancul! The Sopranos Pilot (season 1, episode 1).
You may find yourself asking how does this reference apply at all to communicating with your medical provider in a workers’ compensation setting? The answer is quite simple, do not be Gary Cooper, John Wayne, or Tony Soprano when visiting with your doctor after a work injury. Put another way, to be the strong and silent type could be the kiss of death when it comes to making sure all of your rights are protected, including your entitlement to causally related medical care and treatment and money benefits.
In my first blog post I stressed the importance of telling the truth after a work injury and how that honesty has two components, one obvious, and one less so. I want to focus on this honesty and truthfulness in the context of communicating with the doctor. The obvious component is to not lie or make anything up. I’m less concerned about the obvious element. It’s easy, it speaks for itself, and frankly, I do not want to represent anyone in a legal matter that is not an honest and credible person.
I’m more interested in the less obvious component, the “do not hold anything back” side of telling the truth. I always tell clients at our very first meeting that the doctor is not a mind reader and is only going to address the complaints that the patient makes when taking a history. Not holding anything back means paying attention to your body and documenting all symptoms and complaints, in all affected body parts following a work injury. In this scenario, all means all, including all symptoms and complaints whether they are a direct result or a consequence of the work injury.
Telling the doctor all of your symptoms and complaints, means telling every doctor you see, whether your treating doctor, or the doctor the insurance company sends you to for an evaluation, all of the symptoms and complaints and when you experience them. I tell clients all the time, you need to make sure the doctor understands what you feel and go through on your worst day, not your best day. Sometimes symptoms can wax and wane, but the bottom-line is that an injured worker is not seeking treatment for how they feel on their best day, its about how they feel at their worst. This allows the doctor to get an accurate picture of the condition or conditions the injured person is experiencing and develop a treatment plan to get the person feeling better. That’s the ultimate goal after all!
A consequential injury is an injury or medical condition sustained as a result of an employment related injury or illness. Often times, when a person has an injury on one side of their body, like knee or ankle injury, or a shoulder or elbow injury, they overcompensate for the loss of use the injured side of their body and put more stress, wear and tear on the opposite, non-injured side. Consequential injuries can develop due to this overcompensation. It’s very important to not go all Gary Cooper or Tony Soprano when this situation occurs. I urge clients to make these complaints to the doctor immediately when they begin to have these problems. I also ask clients to make certain their doctor is actually documenting the complaints in the medical reports and making treatment recommendations based on the complaints. This is especially important in the workers’ compensation setting because the insurance company may choose to deny authorization to treatment for consequential injuries, so the sooner the complaints are documented by the treating physician, the easier it tends to be for consequential injuries it is to be accepted. Whether that’s on a voluntary basis by the insurance carrier, or through the worker’s compensation court system.
Sometimes folks who experience severe injuries to their bodies also strike or injure their head as a result of the work accident. Unfortunately, these conditions can go unnoticed or undiagnosed at first, especially if there is the need for emergency triage or treatment for a bodily injury immediately after the incident. Injured workers find themselves experiencing post-concussion symptoms, or neurological problems as they seek treatment with their primary care physician or an orthopedic specialist following the injury. The rule against being the strong silent type applies in this situation as well. If you find yourself if this predicament it is very important to make all of these symptoms and complaints related to a head injury to your doctor so that he or she documents them in the reports and provides a referral to a neurologist or other specialist with the skills to treat the specific problem. The same rationale as outlined above in consequential injuries about getting approval for the requested consult and treatment from the insurance company or through the court system.
A life changing work injury can impact a person’s life many ways, including leading to feelings of anxiety, mental anguish, and depression. These conditions are compensable and if you experiencing psychological complications following a workplace injury you have the ability to seek treatment at the expense of the workers’ compensation insurance carrier. If you find yourself in this situation, do not hold anything back, make the complaints to your treating physician, get a referral for a psychological consultation, get it submitted to the insurance carrier for approval and get yourself into treatment and on the road to feeling better.
In response to Tony Soprano’s question, about whatever happened to Gary Cooper? The strong silent type. My hope is that by properly educating injured workers about their rights and how to communicate with their doctors as a means to protect those rights we can eradicate the strong silent type mentality from the culture of workers’ compensation. In doing so, it should help the injured worker get faster access to reasonable, necessary, and causally related medical treatment for any and all condition related to their work injury and make it harder for the insurance companies to deny honest hard working people access such treatment.
March 19th, 2018|
As recently as 2016, over 7.5 million Americans held multiple jobs in order to make ends meet. An on-the-job injury can cause a huge disruption to a person’s life, but an on-the-job injury for a person working for multiple employers can be particularly devastating.
When you are injured on the job, there are certain benefits that your employer’s workers’ compensation insurance company must provide to you under the laws of either Maryland, the District of Columbia or Virginia. Despite the fact that each jurisdiction has its own wrinkles through the laws, these benefits are largely the same. As a brief aside, I hesitate to use the word “benefits,” because that makes it sound like you are gaining something by getting money from the insurance company when you are injured. In fact, what these payments ensure is that you are not losing your livelihood, your ability to put food on your table or your ability to keep a roof over your head. Because the laws of each jurisdiction refer to this money as “benefits,” however, I will use it here.
What are wage replacement benefits?
In my years of handling workers’ compensation cases, I can tell you that one of the most important types of benefits, aside from medical care and treatment designed to get you better and back to work, are the wage replacement benefits you are entitled to receive while you recover from your injuries and are unable to work. These are known as temporary total disability benefits.
When an injury at work causes you to not be able to work and you lose your regular stream of income, it can have a devastating effect on both your life as well as the lives of your family members for whom you must also provide. Because of this, making sure that my clients are receiving their full temporary total disability benefits in a timely fashion is always my number one priority when I am first hired by a new client. I have had the great fortune to develop some tools for making sure that this happens sooner rather than later so that my clients’ lives are disrupted as little as possible by their work injuries. Insurance companies, however, are not always willing to pay these benefits in full or on time, which means that we sometimes must go to court to fight for our clients’ rights to their benefits.
But what if I’m working 2 jobs? A fight over temporary total disability benefits for one of my clients recently gave me the opportunity to change the law for the better not just for that particular client, but also for all injured workers in the District of Columbia.
For a little more background, in the District of Columbia, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits. This means that injured workers who are working at two or more jobs at the time of their injuries are entitled to be paid based upon lost wages from both jobs. Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages at all. So, if you are injured while working at your part-time job and miss time from a much more lucrative full-time job, the state of Maryland has determined that you are out of luck and just have to deal with the very limited income replacement benefits. See why I hate to use the word “benefits”? In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured, but not otherwise. Again, this is hardly a “benefit” to someone who works two different types of jobs to provide for themselves or their family.
How We Changed the Law in D.C. to Help Injured Workers
Back to our story. My client in this particular case was working two jobs at the time she was injured. She was working in the District of Columbia for the employer where she injured her shoulder, and she also had a part-time job working for a different employer. When she was originally injured, her employer was still able to provide her with modified work so that she could continue earning an income. Her part-time employer, however, could not provide work within the physical restrictions that her doctor imposed on her. Actually, her doctor restricted her from working at her part-time job because he was concerned that she would overexert her injured shoulder. As such, her employer correctly began to pay her wage loss benefits based upon the partial loss in her total stacked wages that she sustained.
However, at a certain point in time, my client then injured her other shoulder and the originally injured shoulder got worse while she was in physical therapy. At that point in time, her employer was no longer able to provide modified work for her. When that happened, her employer should have begun paying her full temporary total disability benefits based upon the wages she was now losing from both of her jobs. The insurance company disagreed, and we had to go to a hearing. We won that hearing and the employer was ordered to pay my client based upon her lost wages from both jobs.
The employer was not satisfied and appealed to the Compensation Review Board (the highest level of appellate review within the D.C. Department of Employment Services). The Compensation Review Board agreed with the administrative law judge and we won again. The employer was still not satisfied and appealed one last time to the District of Columbia Court of Appeals. The District of Columbia Court of Appeals is the highest court in the District of Columbia and therefore, what the Court says is final. In July of this year, the Court of Appeals issued a decision that would affect all injured workers in the District of Columbia for the better.
First of all, we won, which was awesome for my client (and, of course, was the right decision in my opinion). The Court noted that the issue in our case was one of first impression; somehow the Court had never had the opportunity to rule on this issue. That, in and of itself, is pretty exciting to me because it’s an opportunity for me to affect a great change in the law to the benefit of many people, both now and in the future.
- If an injured worker works more than 1 job and can’t work at their second job because of a work injury from their first job, they are entitled to compensation for those lost wages from the second job, too.
In response to the employer’s argument that the Court would somehow create confusion and a conflict of legal principles if we prevailed, the Court of Appeals stated, “A legal paradox is not created by this decision. It is permissible to have two separate awards attributable to one injury because there are two separate jobs—and earnings—being affected by one injury. One injury can impact a person’s concurrent earnings differently because of differing job responsibilities—the examples are infinite.” Basically, the Court implicitly recognized that people do work different jobs that can both be impacted by a work injury, but also that people who are working two different jobs may have vastly differing job responsibilities at each job. As noted above, I think this is the most logical approach of the three local jurisdictions. Virginia and Maryland simply are not grounded in the realities of modern employment and are doing their citizens who sustain work injuries a massive disservice by failing to require that they be compensated for lost wages at both jobs.
- Employers have to show that alternate jobs don’t just actually exist, but that the injured worker could actually likely get that job.
The Court also delved a bit more into the evidentiary burdens of both injured workers and their employers at hearings. The Court reviewed more well-settled case laws that allowed an employer to escape liability for payment of temporary total disability benefits if a job might be available within an injured worker’s physical restrictions from his or her doctor. The Court, however, went one step further in this case and stated that an employer “must establish job availability in fact,” meaning that the employer “must prove that there are jobs reasonably available in the community for which the intervenor is able to compete and which she could realistically and likely secure.” Essentially, the Court prohibited what used to be the normal practice of employers/insurers and their defense attorneys coming into court and stating that a job would be available without providing any more evidence than that mere statement.
- Defense doctors who work for insurance companies can’t be the only evidence used to show that an injured worker could work.
Similarly, the Court prohibited employers from relying solely upon an opinion from a doctor selected and paid by the employer and insurance company to render an opinion about an injured worker’s ability to work. The Court noted that, logically, all a doctor’s opinion may (or may not) do is establish that an injured worker could work in some way, but it does not establish that a job is actually available. That makes sense to me because, unless the injured worker worked in that doctor’s office (and we would then be discussing conflicts of interest), how could the doctor ever know the business dealings and job availabilities at the employer’s place of business? Inexplicably, judges had previously allowed the defense attorneys to get away with this. Fortunately, the Court of Appeals saw through that charade in this case and clarified the law, making life much better for injured workers. My colleagues and I have already been able to apply this new requirement to the benefit of our clients in hearings.
- Just because an injured worker suffers a second new injury doesn’t mean the employer is off the hook for paying wage replacement benefits.
Finally, the Court found that my client’s subsequent injury to her other shoulder did not affect her rights to ongoing temporary total disability benefits. The Court focused on the definition of “disability,” which means an injury that causes a loss of wages. Although she had a new injury, her disability (i.e. her inability to work in a full-duty capacity) was unaffected by the second injury. This was specifically stated by her doctor, who indicated that her physical restrictions were still in place and unchanged by the new injury to the other shoulder. This was an important new development in the law because previously employers and insurers would rely upon the mere happening of a new injury to terminate any and all present and future benefits for our injured clients, again putting them into a predicament.
A ChasenBoscolo Victory for Injured Workers in the Maryland Court of Appeals
Even more astounding, in the same week that the D.C. Court of Appeals decided in this case that a subsequent injury did not necessarily impact an injured worker’s rights to ongoing wage loss benefits, the Court of Appeals of Maryland (which is the highest court in the state, just like the D.C. Court of Appeals) issued an opinion in another case of ours dealing with a similar issue. In that case, my colleague’s client had sustained a very serious injury to his back that caused him to have a permanent disability. Years later, he was involved in a minor altercation that, for a brief period of time, made his back hurt more. The employer and insurance company jumped all over that new incident to deny our client’s benefits. After a long and drawn out fight at the Maryland Workers’ Compensation Commission, the Circuit Court for Anne Arundel County, the Court of Special Appeals of Maryland, and ultimately the Court of Appeals of Maryland, found that our client’s subsequent minor injury had no impact on his disability as a result of his work-related injury.
All of the points of law held or clarified by the D.C. Court of Appeals and Court of Appeals of Maryland in these two cases represent important victories for the rights of injured workers. As a lawyer, I am incredibly proud of the work we do here at ChasenBoscolo to protect not just our clients, but also all injured workers, whether it be through litigating their cases in front of commissioners, administrative law judges or juries, or through our appellate advocacy to change the law for the better.
March 5th, 2018|
Hello, my name is David Kapson, and I am an effective and experienced personal injury attorney with a proven track record of securing medical treatment and money benefits for injured workers in the DC metro area. The purpose of this blog is to provide a resource for folks who may find themselves struggling with confusing questions and difficult decisions following a life-changing accident at work. But before we get to that, let’s start with two things I love: pop culture and stories.
From Wilkes-Barre to Washington
In 1980, the band Talking Heads released their iconic single, “Once in a Lifetime.” As the opening verse unfolds, Heads singer David Byrne asks, “How did I get here?” Many people that I have met and represented over the past seven years ask themselves the same question following a life-changing injury that occurred in the course of their employment. For some, the circumstances that lead to the question, “How did I get here?” include medical expenses, difficultly getting access to medical treatment and the heavy toll of disabling injuries that keep them out of work. Oftentimes, these injuries lead to effects that ripple through the lives of the injured worker and their families, including the inability to pay bills, buy clothes and school supplies for children, put presents under the tree at holidays, or in some cases, keep a roof over their families’ heads or food in their bellies. Let me provide a few tips if you suffer a work injury and find yourself asking, “How did I get here?”
But first, let me tell you a little about how I got here. In 1980, while the Talking Heads were taking the New York City music scene by storm, my parents were getting married in a little town outside a little place called Wilkes-Barre, Pennsylvania. This is the coal region of Pennsylvania—a blue-collar area in the Northeast where, for the most part, people made a living with their hands or their backs. Most adults I grew up around had a high school diploma, worked a trade, worked in construction and carpentry or worked in the hotel and restaurant setting. My grandfather on my mother’s side was a coal miner, starting out in underground mine shafts, and later above ground on strip mines. My mother’s brother also worked in the strip mines, and later as a carpenter where a work injury lead to his permanent and total disability. My aunt was a nurse. My grandfather on my father’s side worked for the phone company, mostly 15-20 feet above ground hanging cables on telephone poles. But I grew up running around behind the scenes of a hotel in Wilkes-Barre where both of my parents worked. In fact, it’s also where they met, but that’s another story.
My father started as a member of the banquet set-up team at the hotel. This was a physical job that required him and his co-workers to set up and break down hundreds of dining tables, chairs, and equipment in the hotel’s four large ballrooms for events like weddings, bar mitzvahs, awards dinners, meetings, etc. Eventually, after working at the hotel through college, he was able to rise through the ranks to a management position and helped to manage the hotel’s inventory supply. My mother was a banquet waitress from the time before I was born through the time I was about half way done with high school. She was then promoted to the banquet manager and began to lead a team of banquet servers and set-up workers. Today, she continues to lead the hotel’s entire banquet and catering division and is the area’s go-to person for all your wedding planning needs (plug, plug, Mom!).
My dad worked days and my mom worked nights, so most of my afternoons were spent at the hotel waiting for my dad’s shift to end and my mom’s to begin. My mom would drive me there, and my dad would take me home with him from work. I didn’t know it at the time, but my path towards helping people with work injury claims started to form when I was just a kid running around that hotel. I saw behind the scenes. I saw how physically demanding a customer service job in the hotel and restaurant industry can be. I understood the risks of how dangerous a slippery floor can be, or how a tiny mistake with a very sharp knife can change a person’s life and livelihood, or how lifting a heavy box could take a person out of work for months or even years.
Later, during high school and college, I started working at the hotel for my mom as a banquet server, and eventually as a bartender. Not only did I learn where to set the salad fork and where the bread plate goes while properly setting a table (skills I still use today to impress my wife), but I also lifted thousands of heavy trays stacked with dishes, silverware, glasses, etc. I spent many long hours and shifts on my feet and scrambling to keep the customers happy. Even as an eighteen-year-old, it was physically demanding hard work. Many of the people I worked with, especially the waitresses at that time who were in the 40s, 50s and even 60s, had made a career and supported families from the same type of work. Without my knowing, all of this experience shaped who I would become. Later, I would realize that not only did it shape me, but it shaped WHO I wanted to help in this world: honest, hardworking people who suffer a life-changing injury on the job.
My parents’ hard work gave me the opportunity to go to college and eventually law school. I sometimes tell people that I stumbled upon workers’ compensation as the area of law that I practice the most, but when I reflect, it really feels like it was my destiny all along. Now, after seven years in practice, I cannot imagine being an attorney without devoting my career to the purpose of protecting the rights of injured workers and putting their interests first.
What You Should Do if You’ve Been Hurt on the Job
So, that is how I “got here.” Let us now get to the guide or resource portion of this blog post. If you suffer a work injury and find yourself asking, “How did I get here?” remember to do these three things:
- Be honest.
- Get medical treatment.
- Attempt to return to work when medically cleared to do so.
Let’s look at each of these individually.
Sometimes, the best legal advice is the most obvious. There is a stigma in society attached to work injuries and the people who suffer them: “liars, fakers, milking the system, etc.” We have all heard it. It’s out there in the world. However, this advice is not meant for someone trying to game the system or defraud their employer by faking a work injury. It’s for the honest, hardworking person who suffers a work injury that has the potential to be life-changing.
For those people—the people I want to help—one of the most important and easiest things to do from the very beginning is to tell the truth about what happened and be honest about all of the injuries suffered as a result of the work accident. Telling the truth about what happened is important because the employer must be notified if they are going to take responsibility through the workers’ compensation system for an injured worker. In most states and jurisdictions, there is a time limit for the injured worker to report the injury to their employer in order to qualify for all of the rights and benefits associated with a workers’ compensation claim. Do not waste time. Tell the truth about what happened when notifying your employer. Even if the injury happened because it was your fault, you are not prohibited from bringing a workers’ compensation claim. It’s a no-fault system, so be honest and report truthfully.
Telling the truth should not stop after the reporting of an injury. It should continue through to all medical providers the injured worker sees for treatment following a work injury. I always tell new clients that telling the truth in this setting really has two sides. First, and most obviously, telling the truth means not lying or making up something that isn’t true. That’s the easy part: don’t lie. The second side is a little less obvious at first, but often makes the biggest difference in the end: do not hold anything back. This means paying attention to your body and telling the doctor about all of the symptoms and complaints in every part of the body injured either as a direct result or as a consequence of the work accident. Telling the doctor all of your symptoms and complaints means telling every doctor you see, whether your treating doctor, or the doctor the insurance company sends you to for an evaluation, all of the symptoms and complaints and when you experience them. For example, a person with a lower back injury may experience more pain when they have to bend, twist, stoop or when lifting. They may also experience shooting or radiating symptoms down into one or both legs when moving a certain way or performing a certain action. You may not feel this while sitting on the exam table at the moment the doctor asks, “How do you feel?” but that should not stop an injured worker from telling the doctor everything. The doctor cannot read your mind and you may not put yourself in the best position for a full recovery if you hold back when explaining to the doctor where it hurts.
Get Medical Treatment
The next simple pointer is to do what the doctor says, so you can try and get better! Another stigma or myth about a workers’ compensation claim is that it leads to a lucrative settlement or monetary award. The truth for the vast majority of people injured on the job is that the workers’ compensation system is not a solution for the rest of their lives. In fact, the longer you stay in the workers’ compensation system, the greater the chances of a poor outcome with your claim.
One way to shrink the amount of time you spend in the workers’ compensation system is to be committed to the treatment protocol outlined by your physician. That means making it to all your appointments, having honest and open dialogue with your doctor, following your doctor’s orders (i.e., physical therapy, medication, diagnostic tests like MRIs, CT-scans, etc.) and collecting the necessary paperwork and referrals from the doctor’s office to prove the insurance company a means to approve the recommended treatment. The goal here is to do as much as you can to get better and back to being yourself again. It’s not fun to be injured, so do yourself a favor and get as much treatment as you possibly can to get better!
Attempt to return to work when medically cleared to do so.
Finally, when the doctor releases you to return back to work in some capacity, make an attempt to go back to work. This is easy for injured people who make a full recovery: you get released and return to your regular, full-duty employment. For folks who are gradually released back to work with restrictions or who are facing a future of returning to the job market with permanent restrictions, the path can take some twists and turns. If you are released with some type of restriction, it is usually in your best interest to share that information with your employer and ask them whether they have work to do within those restrictions. It’s important to ask, even if you know or think you know the answer is that they don’t have work within those restrictions. In some cases, employers will offer work within the restrictions provided by the doctor, in which case I always advise my clients to give it a shot! You never know if you can actually do something unless you try, right? It may be work you can do, and in time you progress back to regular full-duty job. Or, the work might be too physically demanding, at which point your best bet is to return to the doctor to see about having the restrictions modified based on where you are in the recovery process. Generally, if your employer does not have work within your restrictions and advises you accordingly, you may still be entitled to claim workers’ compensation benefits even though you are not fully back to work.
How Injured Workers Can Find the Right Attorney
The bottom line is that the world of workers’ compensation can be difficult, confusing, and even bizarre. Hopefully this blog post shed some light on what to do to protect your rights if you are injured at work. Even if you follow these guidelines, you may still come to a point where you ask yourself, “How did I get here?” If that is the case, the best advice I can give you is to consult with an attorney who specializes in successfully handling workers’ compensation cases. I suggest to you that the measure of any attorney’s professionalism in this area is whether they are more worried about your success than you are. That is the standard I try every day to live up to for my clients, and that is the level of professionalism any potential new client should be looking for. Make no mistake—an injured worker is always better off with a knowledgeable and experienced attorney than attempting to go it alone against massive corporate insurance companies.
In closing, please allow me to offer just a little more advice about what to look for in an attorney to represent you in a workers’ compensation claim. Irrespective of number of cases they have tried, or their number of years in practice, a claimant’s workers’ compensation attorney is not worth their salt unless they do three things:
- Educate their clients about the law and the workers’ compensation system
- Advise their clients on how to navigate the workers’ compensation system
- Be willing to litigate the claim against the insurance company if a dispute arises over the client’s rights to medical treatment or money benefits
I would also encourage anyone searching for a workers’ compensation attorney to place a premium on choosing a lawyer who will protect the rights of the injured worker and put their interests first.
January 29th, 2018|
As the son of an aircraft mechanic, I remember my dad always telling me, “Work hard for the things you want in this life.” One day I asked him, “What do you want in life?” He told me that he wanted a roof over his family’s head, he wanted my mom to be happy and he wanted his boys to have a life better than he and his dad. I thought that sounded easy enough.
Then one morning in 1986, during my sophomore year of high school, as I was waiting for the bus, the phone rang. I heard my mom shout, “Oh no, what hospital?” She asked me to get my stuff and get in the car. You see, as my left-handed, 47-year-old dad was changing a tire on a plane, the jack broke and the wheel well came down, severing several tendons in his hand. As I went back to see him, I remember thinking, What is this going to look like? What is this going to feel like?
The fact of the matter is, I was scared, and I am still scared today. What happens when someone or something wakes you up from your dreams? That was the day that I learned what it meant to be a father and husband.
The basic premise of workers’ compensation benefits is to provide income replacement and medical care so that injured workers are not left behind while they are recuperating from their injuries. The legislatures in all 50 states have indicated how injured workers’ claims will be handled. In most states, you cannot sue your employer for economic and non-economic damages (pain and suffering), so it is rare that an injured worker can be made whole for all the losses incurred by an injury. With so many workers traveling to work in nearby states, it is increasingly important to know your rights when you get injured, because the insurance companies who are responsible for paying the benefits do.
What should I do if I get hurt on the job?
Step 1: Report what happened and all of your injuries to your employer.
When a worker gets injured, the first thing they should do is notify, preferably in writing, their supervisor or someone in human resources. They need to document not only how the injury happened, but more importantly, all the areas of the body that feel injured. Remember, you’re not a teenager anymore, so your body will respond differently to injury. It is easy to know how and when you sustained injury if it was a witnessed slip and fall or an accident by machine. But what if you work in an occupation where you do a lot of walking, or you work in a loud environment, or you sit at a desk with a headset in your ear for 30 years?
Step 2: See a doctor.
Injury is not so easily identified by you, so seeking the consultation of a physician for your symptoms can protect your dream without intention on your behalf. Many baby boomers and Generation-X workers were raised not to complain or whine about their problems. “Don’t make a big deal out of this,” is what we probably heard when faced with an issue that required us to press on for the sake of others. Therefore, most injured workers do not go and seek medical care immediately to document their injuries until it becomes obvious to them that their problems are worse than they thought. With nothing legally sophisticated about it, the insurance company now has a defense to your claim. It goes like this: “If they were as injured as they say they are, why didn’t they go to the doctor right away?” So please, go to the doctor right away.
But Matt, maybe you haven’t been keeping up with current events. My employer is one of the millions who doesn’t provide health insurance, and I can’t afford to pay for the visit. In all states, the workers’ compensation laws are designed to provide reasonable, necessary and causally-related medical care and treatment for as long as the injury requires at the expense of the workers’ compensation insurance legally required by your employer to have on your behalf. This is part of your employment package, so take advantage of it for the protection of your future.
Step 3: Get your paystubs and keep track of missed work.
After you give notice of your injuries and seek treatment from a doctor, you need to look at your prior pay for a certain period of time leading up to the accident. This will help you to get a picture of what your income replacement will look like while you are unable to work. Remember, the bill man doesn’t care that you got injured, and your responsibility to pay your personal obligations each month still exists. These benefits are called Temporary Total Disability Benefits.
In no state are temporary total disability benefits paid at 100 percent of your earnings. They are usually paid at two-thirds of your weekly pay, tax-free. Some states allow you to be paid based upon all of the jobs you may have been working at the time of your injury; some do not. Some states allow you to include your overtime worked; some do not. Although I always had the best sports equipment come the first of each basketball and baseball season, I knew it came at the expense of third shift ending and morning overtime for my dad.
It is critical you know what rights you have as you have personal obligations to satisfy based upon your ability to work. In order to receive these benefits, you will need a doctor’s note indicating what treatment is being recommended, a doctor’s note indicating that you are not able to return to your pre-injury job, and an actual medical note that indicates that your inability to work and recommended treatment is reasonable, necessary and causally related to your work accident. Without those things, or help from a lawyer that cares, your American Dream could be in jeopardy.
Recovering From a Work Injury
Has anybody been told by their employer, “Go ahead, take as much time as you need.” I believe there are some of you who have heard this, but for a great majority of workers barely able to make ends meet, that is not the case. Also, do any workers wake up healthy and say, “I hope an injury happens so that the last 22 years of my career are meaningless.” Of course not. Most—if not all—injured people want to get as good as they can get and move forward with their dreams.
However, medical care and treatment is expensive, and as we see in the news today regarding healthcare reform, this is the most important time for you. Will you be able to have all the physical therapy you need to return to your dream, and will it begin promptly? Will you be able to undergo the MRI or other diagnostic test your doctors need to determine your conditions, and will it be done promptly? Will you be able to undergo the surgery you need to return to your dream, and will it be done promptly? Will your employment be there when you do everything within your power to keep living your dream? As you can see, how quickly this happens determines the lasting effects the injury has on your abilities to live your dreams. This is often the most critical part of your claim. What you are left with are the pieces you will need help with picking up and moving on.
When some of the pieces are missing, most states allow for the workers to receive an award for the permanent affect. This is called a Permanent Partial Disability Award. Many times, the permanent effect is loss of motion, loss of function or loss of the ability to engage in a specific activity. Although each state may place different levels of importance to each, these are the most important in my opinion. These are the essential elements for survival. Without them, you cannot be part of the pack, you cannot be part of the team and you cannot be the productive member of society like you were the day before your injury. When you experience one or more of these losses or an actual loss to a part of your body, you may be entitled to an award. A majority of the states have already predetermined what your arm is worth, or what your leg is worth. Did they ask you? Did they ask you before they reduced what your arm is worth in 1999 in the District of Columbia, for example? You need every available benefit that is left to be able to move on with your dream.
Sometimes, a permanent effect of the injury is your inability to return to the same type of work that you were physically able to do before the accident. If this occurs, you may need the assistance of vocational rehabilitation. This assistance includes basic job hunting instructions like resume building and interview skills. It may include job placement into another transferable area of employment for you. It may include retraining or schooling to compete with others in today’s labor market. Whatever the assistance, remember this is your dream that will be affected. If you return to a job that pays you less than what you were making before you sustained injury, the insurance company may be required to pay permanent wage loss benefits. Most states, like the District of Columbia, allow these benefits to be paid at two-thirds of the difference, and some states, like Maryland, calculate the effect of the permanent wage loss differently. Regardless of the structure, you need to know when and how these benefits help keep your dream alive. Sadly, sometimes, the dream dies on the job.
What about the effects on my family?
In all states, your loved ones, through the workers’ compensation insurance company, have benefits available to help pay for funeral expenses and, in some cases, income replacement for dependent family members. You need to be aware that not all dreams die at the initial workplace accident. Many times, your loved one has a consequence of the initial injury or accident that results in the dream dying. This often requires me to review the medical records and speak to colleagues and other witnesses to determine if there is a causal connection. Don’t be afraid to ask questions to the answers you may need but don’t know. Remember, your loved ones’ dream includes you.
Why I Fight for Injured Workers
In 1993, I graduated from the University of Pittsburgh. I stood there with my mom and brother and realized how lucky I was. No debt and a shiny new political science degree. Then fear set in. What did I do? I had just wasted 4 years of my dad’s hard-earned money with a degree in something I hated. You see, the degree didn’t really require a lot of hard work. It was easy. As the panic subsided, I decided to attend law school. I had no reason at the time except that I hated politics, and the only job interview I had was for selling cutlery door-to-door. So I packed up my car, kissed my girlfriend goodbye (she’s my wife now) and went to law school. I hated everything about it. There were very few people like me, I thought at the time. During my last semester, I took an elective: workers’ compensation. That will be an easy A, I said to myself. It’s just comp. At the conclusion of the 15 weeks, I was exhausted. It was the hardest class I had ever taken in my life.
At discharge from the hospital, my dad’s hand was so damaged that I thought his career was over. He was my idol. How could he curse anymore at all the young mechanics he was trying to help teach in the middle of the hangar? How would our used cars that he could always fix and keep running last? How could he support us, seeing as our private catholic school cost $1,800.00 a year? How was he going to be my dad? He missed two weeks of work, because that is how much a union mechanic got in 1986. He used the green therapy ball and grip strength device while my mom changed his bandages and he continued on.
This year, my dad turned 79 years old. He cannot do much of anything with his left hand now, he cannot walk without a walker as a result of 14-hour shifts standing and walking across miles of hangar for 30 years and he cannot hear as a result of years of making sure loud airplane engines were operating properly for the safety of the public.
So after 20 years of knowing what I know now, I asked him, “Why didn’t you make a claim for your hand?”
He told me, “Because when you’re a parent, you have to make decisions for others, not yourself.”
I told him that I would’ve protected him. We took a sip of our beers and he said, “I have no doubt you would’ve.”