June 4th, 2018|
After a major injury while at work, the last thing you may be thinking about is getting back to work. Between medical care, household bills and pain from your injury, the idea of returning to life as normal may seem like a dream. Many of our clients come to us with no knowledge of the workers’ compensation system, which was originally meant to be a “user-friendly” system that an injured worker could navigate without the assistance of a lawyer. Many injured workers quickly find out it is anything but, and that’s when they come to us for help. The goal of any workers’ compensation attorney is to help their client navigate the system and to help them eventually return their life to normalcy.
I have the privilege of working with some fantastic, seasoned attorneys here at ChasenBoscolo who are able to explain the complexities of the law, comprehend and analyze medical records and make sophisticated legal arguments on a daily basis. While all this is crucial to our mission of taking care of our clients, sometimes the best advice is the simplest. Through our experience handling workers’ compensation cases throughout D.C., Maryland and Virginia, we have found that there are certain universal truths to dealing with the workers’ compensation system. One of the basic rules of getting through your workers compensation case is, “When your Doctor tells you to go back to work, try.”
Why should I try to go back to work?
For many people, returning to work after an injury can be scary idea. Will I get hurt again? Will I be able to do my job like I used to? Will my employer treat me differently? While the barriers, both physical and mental, of returning to work can be high, we have found that there is a great value in attempting (and hopefully succeeding in) returning to work.
The first reason for this is a practical one: workers’ comp only pays you 2/3rd of your average weekly wage. In the world of workers’ comp, you will hear a lot about “AWW” and “Comp Rate.” Your comp rate is determined by taking 2/3rd of your average weekly wage. This is the amount that will be paid to you while you are temporarily and totally incapacitated from work. While this amount is tax free, it presents a financial burden to many clients, as it is typically less than most clients take home. Also, depending on your employer’s policies, you are often missing out on other benefits, such as contributions to retirement plans, health insurance and many other benefits. We understand the financial burden that a workplace injury can place on our clients.
The second reason is more of an emotional one. For many, like all of us here at ChasenBoscolo, our workdays are not just a source of a paycheck. Work can be a calling, a mission, a way for us to help and care for others. Without the ability to contribute to the world, one’s self-worth can often suffer.
Work can also be a place for social connections. Missing out on work for months at a time can be isolating. Returning to work allows injured workers to be around supportive co-workers and remain in touch with their workplace friends.
What if my doctor says I can work, but puts restrictions on what I can do?
One of the most crucial points in any workers’ comp case is when an injured worker has been cleared by their doctor to return to some sort of work. This is often called “light duty,” or returning to work with restrictions—a doctor can write a list of temporary or permanent restrictions outlining what physical restrictions an injured worker may have when they return to work. Under Virginia Code § 65.2-502, an injured employee who has been returned to work in some capacity is entitled to temporary partial disability benefits. When you return to work but are making less than you were pre-injury, either because your employer has found a new temporary job for you or because you are working fewer hours, your employer will be responsible for the temporary partial benefits. In order to prove eligibility for temporary partial disability benefits, an injured worker has to show that they have restrictions on what they can do at work and that they are earning less than they were at the time of their injury. There are also other responsibilities that the Virginia Workers’ Compensation Commission places upon an injured worker in this situation, and if you find yourself in this position, you should consult with an experienced workers’ compensation attorney to explain these.
Sometimes, after a workplace injury, your employer could offer you work within your restrictions, often called selective employment. Here, the burden is on the employee to attempt to do the work offered within the treating doctor’s recommendations. Under Virginia Code § 65.2-510, if an employer offers an injured worker selective employment, that is, employment within the restrictions, and the employee refuses, they will not be entitled to wage loss benefits. This is another reason why, when given the chance to return to work, in this case for your prior employer, it is best to do so.
An injured worker who has been cleared by their doctor to return to a partial work capacity and is making less money than they were pre-injury, either because of reduced hours or because their employer does not have a light duty position for them to return to, is obligated to “market” their remaining work capacity. What this means, in layman’s terms, is to look for another job.
While the requirements of marketing that will satisfy the Virginia Workers’ Compensation Commission are best addressed in their own, separate blog post, the marketing requirement shows the importance that the Commission places on attempting to return to work.
An entire cottage industry of vendors has developed to help insurance companies lower their costs and return injured workers to gainful employment sooner. One is a specific type of physical therapy called work hardening or work conditioning. The goal of either of these programs is to condition the body to return to a full day of work, prevent future injury and assist individuals in getting back to work. Oftentimes, these programs simulate the activities that an injured worker will perform at work and are meant to help the injured worker have an easier, as well as a faster, transition back to work. Injured workers should attempt to participate in these programs to the extent that they are in agreement with what their doctors are ordering.
One of the most difficult conversations workers’ compensation attorneys have with their clients is about the things that workers’ comp cannot do for them. The list is large, but one of the toughest is the inability to hold your job. Workers’ compensation, unlike FMLA leave, does not mandate that your employer hold your job for you. This varies from employer to employer, but it is always best that employees keep open the lines of communication between themselves and their employer while they are out on medical leave. By returning to work quickly, or at least demonstrating to your employer a willingness to attempt to return, many injured workers increase their chances of their job being there once they are cleared to return to work.
When an injured worker is under an “open award,” but they have been cleared by a doctor to return to “full duty” work, the employer will most likely file to terminate their benefits based on the worker’s ability to return to work. The test here is if the injured worker is able to return to their pre-injury job. When a Commissioner is examining the injured worker’s capabilities, they will look beyond the medical records. Meekins v. Legends Group/Heritage Golf Club, 77 O.W.C., holds that a bona fide attempt to return to work is better evidence than a medical opinion of the employee’s ability to do so. If an offer of selective employment is made to an injured worker within their restrictions, the burden is on the worker to show that they were justified in refusing the work. If an injured worker has actually tried to return to that work and experienced too much difficulty, the Commission will give great deference to that credible testimony.
In Sky Chefs v. Rogers, a truck driver was injured while working for Sky Chefs, which prepared and delivered food to airplanes. Sky Chefs, Inc., v. Rogers, 222 Va. 800. The insurer eventually filed an application alleging that Mr. Rogers could return to his regular employment, therefore cutting off his workers’ compensation benefits. Mr. Rogers eventually returned to work, but while at work, he was in pain, and eventually fell. Even in the face of difficult medical testimony against the claimant, the Commission found that he was unable to perform his work duties, based on his credible testimony about his return to work. “The commissioner found that Rogers ‘functional inability to continue to perform his food handling duties (associated with his persistent symptoms of periodic numbness, pain and swelling) casts doubt upon the employer’s assertion that the claimant was able to return to his former employment in the date in question.”
Another reason it is important to try to return to work is for the possibility of job and career advancement, including any pay raises. While you can receive wage loss benefits for up to 500 weeks in workers’ comp, the rate at which you will be paid is “locked” to when you get injured (with the exception of small cost of living increases). If you work in a field with regular pay raises annually, or different levels of compensation, your workers’ comp payments will not reflect that. By not working, you are missing the opportunity to grow in your career and make more money.
An example of where the commission looked favorably on an injured worker who returned to work is the Starbucks Coffee Co. v. Shy case. Here, Ms. Shy was out of work, but returned for a brief period of 12 hours. Her employer attempted to terminate her benefits, but the Commission found that the employer did not meet their burden of demonstrating that the injured worker could return to her work duties. The burden is on the employer to demonstrate that the injured worker is capable of returning to work, and as this case shows, they cannot meet this burden by simply saying that the injured worker worked for a brief period of time.
There have been times when the Commission has looked harshly upon injured workers who they believe could return to work and haven’t. This can have the effect of termination of benefits. In Webb v. Eastern Airlines, the court found an injured flight attendant did not properly attempt to return to work. Here, the company’s written policy was that an injured employee must be cleared by the company’s doctor. She did not have this clearance, but there was no evidence that she attempted to get this clearance: “there is no evidence that she attempted to return to work or comply with Eastern’s policy.” The Commission seems to be saying that the injured worker didn’t even try to get back to work, and because of this, her benefits were terminated.
What if I don’t think I’m ready to go back to work?
One of the most frequent questions that we get as workers’ compensation attorneys is from injured workers who do not feel either mentally or physically able to return to work, but who have been cleared by their treating doctor, to return. In order for your medical providers to return you to work, it is crucial that they understand the physical requirements of your job. It is not enough to tell your doctor your job title or that you lift things. Describe in as much detail as you can what your day-to-day job duties are, and how many times per day you are expected to perform them. A doctor may be returning you to work without a full understanding of the requirements of your job, and therefore, returning you too early or before you are able to perform your job tasks. It is also crucial that you communicate all your restrictions to your employer.
One of the best moments for any workers’ compensation attorney is when a client can successfully return to work. While we understand that this goal is not always achievable, we hope to be able to help as many people as possible get there successfully.
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.
February 19th, 2018|
Living in the Washington, D.C., area, one of the first questions a new acquaintance will ask is, “What do you do?” When I respond that I practice workers’ compensation law, a common follow-up question in the midst of our conversation may be, “Have you ever met someone who faked an injury to get compensation benefits?” Here is where I cringe. What may seem like a harmless, conversation-starting question makes me cringe because in my years of practice, I have never met an injured worker who would do that. I have never met a worker who wanted to be in a position of uncertainty or to ask his or her employer to provide workers’ compensation benefits.
This common question I receive saddens me because it represents a societal view which is not rational but, tragically, remains prevalent and stigmatizing. My view is that protecting another’s right to work protects families and human rights. Workers’ compensation laws should be a just and effective protection of injured workers and their families. Workers’ compensation laws should be a societal good and should respect the dignity of workers. When I do receive the above question (which still makes me cringe), I embrace the opportunity to share my views of workers’ compensation coverage as a protection of human rights.
This post will identify work as a human right, recognize the historical, moral obligation of employers and insurers to care for their workers and will briefly discuss the threatening legislative erosion of workers’ compensation benefits across the United States. My hope is that the thoughts shared here can shift minds away from any false stigma associated with making a workers’ compensation claim to a view of it as a protection of the right to work—a human right.
Dignity of the Person Through Work
The right to work is a basic human right, a universal dignity that each human deserves, due to the fact that they are human. It is more than just “making a living.” Work is the daily way that we secure our present and our future as individuals. Through work, we protect and feed our families and build a future for our family units. Through work, we express who we are. Through work, we can express and live out what we value. Through work, we develop and share our talents and skills with others. Interactions in the work force allow opportunities to interact with others that we would not experience otherwise.
The people that I represent have a diverse range of physical skills, creative ideas and interpersonal talents which they express through their occupations. They have immediate needs for their growing families and dreams to build for them. Earning a fair wage for fair hours affords most the resources to engage in recreational activities that they enjoy outside of work. Considering the foregoing reality and common interests of the average worker, it would not be rational for that worker to voluntarily threaten that most basic means to provide food, shelter and security to one’s self and one’s family. One who would do so is the vast, vast exception, not the rule.
Employers Must Respect the Dignity of Workers, as Should Their Insurers
“Woe to him who treats his workers unjustly.” Jeremiah 22:13.
“Those who become rich by abusing their workers have sinned against God.” James 5:1-6.
“And O my people! Give just measure and weight, nor withhold from the people the things that are their due” (Quran 11:85).
The above scriptural quotes, while ancient and hard-hitting, apply to the present-day obligation for employers to respect the dignity of their workers. These historic texts encapsulate the compelling worth of each and every worker, a worth that should be appreciated from a secular sense as well. The right to work and the moral obligation for employers to provide decent and fair wages, to allow for organization and the joining of unions and to provide workplace safety really is a hallowed and fundamental concept. With this historical and ethical perspective, modern employment laws should be designed and applied with deference to human rights, and employers and their agents should appreciate the gravity of their responsibility.
Saint John Paul II recognized, “While work, in all its many senses, is an obligation, that is to say a duty, it is also a source of rights on the part of the worker.” (St. John Paul II, On Human Work (Laborem Exercens), no. 16). He continued,
[S]ocial benefits intended to ensure the life and health of workers and their families play a part here. The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge. [Another social benefit] concerns the right to a pension and to insurance for old age and in case of accidents at work. Within the sphere of these principal rights, there develops a whole system of particular rights which, together with remuneration for work, determine the correct relationship between worker and employer. Among these rights there should never be overlooked the right to a working environment and to manufacturing processes which are not harmful to the workers’ physical health or to their moral integrity. (St. John Paul II, On Human Work (Laborem Exercens), no. 19).
I utilize the above texts from major world religions merely to demonstrate the universality and seriousness of a just employee to employer relationship. The obligations that an employer holds towards its workforce are serious and support the basic human rights of each worker by protecting their safety and providing an ability to have affordable healthcare and insurance in case of injury.
The moral obligation to treat workers with dignity and respect should not cease when a worker is upon the bridge of workers’ compensation. Employers provide or purchase workers’ compensation insurance in the event of a work injury. For employers who insure themselves, the obligations to respect the dignity of the worker outlined above do not cease during the pendency of a workers’ compensation claim. It follows that the entities tasked by employers to insure them in the case of a work injury, thereby stepping into the shoes of the employer in providing wage replacement and medical benefits, should adhere to the same fundamental respect for the dignity of the worker. Too often, insurance companies, who are far removed from the value human capital, will dehumanize the worker through failing to pay wage-replacement benefits, by denying medical care recommended by physicians, by delinquency in paying medical bills to cause a disincentive for doctors to treat injured workers and through a general tenor of disrespect and cynicism towards injured workers. This insurance industry goal of discouraging injured workers at the expense of protecting margins runs afoul of the human rights of the worker.
I urge those who are employed in the workers’ compensation insurance industry, who step into the obligations of an employer in the event of a work injury, to evaluate the grave effect of their practices and habits on the precious lives of workers and their families. Human rights should supersede market-based or business interests without fail.
Laws Limiting Workers’ Compensation Benefits Threaten Human Rights
Workers’ compensation laws were founded on a societal good: to promote safe workplaces and to ensure that, in the case of a work injury, a worker received efficient, expedient medical care and wage-replacement benefits. In exchange for this right, employers received protection from civil suits brought against them by injured workers in negligence. The foundation of these laws put human rights first in protecting a worker’s ability to heal his body and protecting a workers’ right to provide for himself and his family after sacrificing his or her body for the employer’s business.
In the past couple decades, several states have amended their workers’ compensation laws to make them more favorable to industry over the individual worker victims. These changes, fueled by business-oriented interests and lobbying, interfere with the purpose of workers’ compensation laws. The reduction and limitation of benefits for injured workers, accomplished in the name of economic interests, profoundly affects families who depend on the earnings of the household. Even at their best, workers’ compensation benefits do not compensate an injured worker for the far-reaching effects that a serious injury and resulting job loss can have: loss of earning potential, depression, inability to afford childcare and strain on spousal and familial relationships. Therefore, any abridgement on benefits is a punch in the gut to the dignity of the worker. Legislatures should value workers’ compensation benefits as a protection of human rights, not a protection of uncertain economic theories based on drawing business to one’s jurisdiction.
There should not be any stigma in protecting the fundamental human right to work. Workers’ compensation laws are based on protecting the ability of workers to endure the disruption caused by the unfortunate happening of a work injury. If you or a loved one have been injured at work, I encourage you to seek an attorney who will advocate against employers and insurance companies that do not value fundamental rights. Seek an advocate who views workers’ compensation benefits as a protection of human rights and a process in which the injured worker should be treated with dignity and respect.