Workers compensation claims typically do not get better with age. In fact, Utah law requires injured workers to submit medical expenses to the employer or insurance carrier within one year. That's right--only one year to get submit medical bills to the workers compensation carrier, so it is easiest to simply have your treating doctor send all bills to the workers comp carrier even if you think the carrier will refuse to pay. Then, you can tell the treating doctor's office staff to bill your private insurance if the workers comp carrier refuses to pay. Doing this lets you preserve your ability to assert these medical claims before the Utah Labor Commission. After all, co-pays and out-of-pocket medical expenses can add up to hundreds or even thousands of dollars.
Utah law says employees "shall provide notification to the employee's employer promptly of the injury." Further, the law bars workers comp claims for injuries not reported within 180 days to the employer or to the Utah Labor Commission. You might not trust that your employer will properly document your injury, so it is often wise to report the injury immediately to your doctor and make sure he or she notates that the injury happened at work, i.e., explain exactly how you got hurt at work.
Some injured workers might think, 'Hmm, I think my back pain will go away and my boss will hassle me if there's a workers compensation claim. I'll just take more Ibuprofen." Many injured employees feel this way and it puts them in a bind, a catch .22: If they report the injury to the employer, they may be fired (perhaps wrongfully). If they do not report the injury and the condition gets worse and worse, then they may be harming their potential to get workers compensation benefits. This is a real problem. Workers Comp attorneys have ideas on how to both (1) preserve your job and (2) increase your ability to obtain the workers compensation benefits appropriate in your case. Many attorneys provide free initial consultations.
Lastly, we have the 6-year statute of limitations for filing an application for hearing with the Utah Labor Commission. This 6-year rule can completely bar your workers compensation claim, so as usual it is wise to call an attorney rather than wait to see what happens. Attorneys can provide ideas on how to obtain necessary medical opinions and preserve your rights under the law.
Monday, January 2, 2017
Monday, December 5, 2016
Medicaid and Workers Comp Settlements
Suppose you get hurt at work and Medicaid pays for your medical treatment. Your workers comp lawyer is required to notify the Medicaid Office of Recovery Services (ORS) so they can get reimbursed. In legal terms, Medicaid has a statutory lien on the workers compensation settlement. After all, since you got hurt at work, the workers compensation insurance carrier should be paying the bills, not Medicaid. So, when you visit your attorney, he/she will need your Medicaid recipient ID number.
Before we settle a workers comp case, we will find out how much the final ORS lien is, and then make sure we settle for enough to pay the ORS lien, the other medical bills, the attorney fee and still leave enough for the client to feel that the settlement was in his/her best interest. For example, if ORS gets $5,000 and there are other doctors' bills of $7,000--a total of $12,000--then it would be silly to settle the case for $15,000 because that would hardly leave anything for attorney fees and the client's take-home share. In a situation like this, the attorney may see if ORS can reduce or waive their lien. And, sometimes doctors or clinics are willing to reduce their bills.
In summary, having Medicaid is a blessing for many clients who do not have other health insurance, but it is very important that we consider Medicaid's lien when deciding whether to settle a case.
Note: If you get hurt at work and do not have private health insurance, consider applying for Medicaid ASAP.
For personalized advice, contact an experienced workers comp attorney. Tim Daniels Law Services offers a free initial consultation. For more information call (435) 592-1235 or visit www.timothydanielslaw.com.
Before we settle a workers comp case, we will find out how much the final ORS lien is, and then make sure we settle for enough to pay the ORS lien, the other medical bills, the attorney fee and still leave enough for the client to feel that the settlement was in his/her best interest. For example, if ORS gets $5,000 and there are other doctors' bills of $7,000--a total of $12,000--then it would be silly to settle the case for $15,000 because that would hardly leave anything for attorney fees and the client's take-home share. In a situation like this, the attorney may see if ORS can reduce or waive their lien. And, sometimes doctors or clinics are willing to reduce their bills.
In summary, having Medicaid is a blessing for many clients who do not have other health insurance, but it is very important that we consider Medicaid's lien when deciding whether to settle a case.
Note: If you get hurt at work and do not have private health insurance, consider applying for Medicaid ASAP.
For personalized advice, contact an experienced workers comp attorney. Tim Daniels Law Services offers a free initial consultation. For more information call (435) 592-1235 or visit www.timothydanielslaw.com.
Monday, November 21, 2016
Talking with the Adjustor - Recorded Statements
When you report a workplace accident, you will likely get a phone call from the workers compensation adjustor, who holds the pocketbook and decides whether to pay your claim. The adjustor will tell you that you must cooperate with their investigation by filling out some forms. And the adjustor will tell you he or she needs to interview you to determine how you got hurt.
At this point, injured workers have three choices:
(1) Tell the adjustor "no" which would cause the adjustor to stop processing the claim, resulting in no workers compensation benefits. (Not recommended.)
(2) Tell the adjustor "sure" which would cause the adjustor to record your interview and thereafter potentially use your statements (or inferences from your statements) against you. (Not recommended.)
(3) Tell the adjustor "sure" and then set up a time and have an attorney like me with you for the interview. This would cause the adjustor to still take your statement but be more circumspect in the questions asked. More importantly, I can help make sure the needed information is discussed in the interview. (Highly recommended.)
A quick story: I once had a client where he had me be present during the telephone interview. The Client clearly got hurt at work but the adjustor failed to ask several legally-important questions. During the interview, I chimed in and had the Client explain some important aspects of how he got hurt. With that pertinent information, the adjustor was persuaded to accept the claim.
Bottom line: The adjustor does not work for the injured worker and has little incentive to ensure injured workers receive the proper benefits under the law--it's easier for the adjustor to simply say, "The injured worker is in his 50's and has pre-existing conditions, so this claim is denied." But the law is not that simple, and most injured workers do not know the nuances of Utah workers compensation law. (Benefits usually depends on the mechanism of injury and other factors.)
Invitation: If you want me to help you with your interview, please call. Remember, there is never an attorney fee unless/until you and I agree to that fee and we both sign an attorney-fee agreement.
So, have a question? Just ask! Call me at (435) 592-1235 or visit www.timothydanielslaw.com.
At this point, injured workers have three choices:
(1) Tell the adjustor "no" which would cause the adjustor to stop processing the claim, resulting in no workers compensation benefits. (Not recommended.)
(2) Tell the adjustor "sure" which would cause the adjustor to record your interview and thereafter potentially use your statements (or inferences from your statements) against you. (Not recommended.)
(3) Tell the adjustor "sure" and then set up a time and have an attorney like me with you for the interview. This would cause the adjustor to still take your statement but be more circumspect in the questions asked. More importantly, I can help make sure the needed information is discussed in the interview. (Highly recommended.)
A quick story: I once had a client where he had me be present during the telephone interview. The Client clearly got hurt at work but the adjustor failed to ask several legally-important questions. During the interview, I chimed in and had the Client explain some important aspects of how he got hurt. With that pertinent information, the adjustor was persuaded to accept the claim.
Bottom line: The adjustor does not work for the injured worker and has little incentive to ensure injured workers receive the proper benefits under the law--it's easier for the adjustor to simply say, "The injured worker is in his 50's and has pre-existing conditions, so this claim is denied." But the law is not that simple, and most injured workers do not know the nuances of Utah workers compensation law. (Benefits usually depends on the mechanism of injury and other factors.)
Invitation: If you want me to help you with your interview, please call. Remember, there is never an attorney fee unless/until you and I agree to that fee and we both sign an attorney-fee agreement.
So, have a question? Just ask! Call me at (435) 592-1235 or visit www.timothydanielslaw.com.
Thursday, August 11, 2016
Reporting Workplace Injuries
Workers who get hurt in the workplace should try to report the accident immediately for several reasons:
(1) As time goes on, there are greater chances of additional non-work aggravations.
(2) It becomes more difficult to prove that the symptoms were caused by the workplace accident.
(3) With unclear proof, the workers comp adjustor is less likely to pay for the medical treatment I need.
(4) Without the medical treatment, I'm in too much pain to work hard and I get fired.
(5) Being hurt and without employment, I cannot pay my bills, and it will take the Utah Labor Commission about 18 months to process my workers compensation claim. I cannot afford to be without income for 18 months.
The best practice is to go to WorkMed immediately following the accident because WorkMed knows how to file the Form 123 with the Utah Labor Commission. Also, report the accident to your management and get a copy of the Form 122 when the Human Resources manager files it with the Utah Labor Commission.
If you think that reporting the injury will get you fired, then that is a difficult situation to be in. Consider looking for a new job; but a new job does not heal your injury and the new workers comp carrier will likely not pay for the injury you suffered at the prior job. If the injury is very minor, then you might decide to forget about it and just keep working. You might want to talk with an attorney or with the Utah Labor Commission about your options. For more information, call me at (435) 592-1235 or visit www.timothydanielslaw.com.
(1) As time goes on, there are greater chances of additional non-work aggravations.
(2) It becomes more difficult to prove that the symptoms were caused by the workplace accident.
(3) With unclear proof, the workers comp adjustor is less likely to pay for the medical treatment I need.
(4) Without the medical treatment, I'm in too much pain to work hard and I get fired.
(5) Being hurt and without employment, I cannot pay my bills, and it will take the Utah Labor Commission about 18 months to process my workers compensation claim. I cannot afford to be without income for 18 months.
The best practice is to go to WorkMed immediately following the accident because WorkMed knows how to file the Form 123 with the Utah Labor Commission. Also, report the accident to your management and get a copy of the Form 122 when the Human Resources manager files it with the Utah Labor Commission.
If you think that reporting the injury will get you fired, then that is a difficult situation to be in. Consider looking for a new job; but a new job does not heal your injury and the new workers comp carrier will likely not pay for the injury you suffered at the prior job. If the injury is very minor, then you might decide to forget about it and just keep working. You might want to talk with an attorney or with the Utah Labor Commission about your options. For more information, call me at (435) 592-1235 or visit www.timothydanielslaw.com.
Wednesday, March 30, 2016
The "Independent Medical Exam" (IME)
Sooner or later the workers compensation insurance adjustor may send you to see her doctor for an "independent medical exam" or IME. These appointments are typically in St. George or in the Salt Lake City area, so the adjustor needs to send you a check to cover gas and meals in advance.
Who is the IME doctor? The IME doctor is paid by the insurance company. He or she is paid to review your medical records, conduct a physical examination and then write a report. The adjustor may then use the IME report as a basis for denying any further benefits, i.e., cutting off lost wages (temporary total disability benefits), or denying further medical treatment, i.e., prescriptions. If the injured worker fails to attend the IME appointment, the adjustor may deny further benefits due to "lack of cooperation" as required by Utah law.
The Questionnaire: The IME doctor will often ask the injured worker to fill out a questionnaire. Remember these three things: (1) When filling out the questionnaire, please be very careful to be thorough--include all of your symptoms, limitations, fluctuations, etc. For example, on the pain scale, be sure to explain whether your pain fluctuates depending on exertion or time of day. Sometimes sitting or standing or bending make the pain worse. If so, be sure to be specific. (2) Also, be cautious of what you say. IME doctors typically will quote hyperbole--dramatic things you say like, "I'm dying!"--to attack your credibility. Your credibility is important because there's money involved and the insurance company wants to save money. (3) Also, the questionnaire will often include a pain drawing where you mark the location of your pain on the outline of a human body. Be sure to be very specific and careful of where you mark, and be sure to include little notes about when and where the pain is because most of us are not artists and the doctor will use any discrepancy against you. For example, if you say your neck hurts but you do not mark it on your pain drawing, then the doctor will conclude that your neck does not really hurt. Again, be consistent and specific and explain yourself.
Rebutting the IME: Sometimes, the IME will recommend further treatment or testing, e.g., a nerve conduction study. Almost always, IME doctors will recommend that opiates be tapered off and non-narcotic pain medications used instead. If the IME doctor makes incorrect assumptions or conclusions, it is usually helpful to give a copy of the IME report to your treating doctor and ask your treating doctor to comment on or rebut the IME report. A rebuttal can be very helpful to your case, especially if your treating doctor is a specialist and really knows what he or she is talking about.
The Appointment: If you receive a notice of an IME appointment and know you won't be available that day, then promptly notify the adjustor and the IME doctor's office and have the appointment rescheduled.
Have a Plan B: Again, adjustors are trying to save money and minimize benefits paid to injured workers. It behooves injured workers not to rely on the adjustor's payment of benefits. Be thinking and talking with your spouse, "If the adjustor cuts off benefits, how will we get by financially?" The Boy Scout motto is "be prepared," which is wise counsel.
If you have any questions, call me at (435) 592-1235 or visit www.timothydanielslaw.com.
Who is the IME doctor? The IME doctor is paid by the insurance company. He or she is paid to review your medical records, conduct a physical examination and then write a report. The adjustor may then use the IME report as a basis for denying any further benefits, i.e., cutting off lost wages (temporary total disability benefits), or denying further medical treatment, i.e., prescriptions. If the injured worker fails to attend the IME appointment, the adjustor may deny further benefits due to "lack of cooperation" as required by Utah law.
The Questionnaire: The IME doctor will often ask the injured worker to fill out a questionnaire. Remember these three things: (1) When filling out the questionnaire, please be very careful to be thorough--include all of your symptoms, limitations, fluctuations, etc. For example, on the pain scale, be sure to explain whether your pain fluctuates depending on exertion or time of day. Sometimes sitting or standing or bending make the pain worse. If so, be sure to be specific. (2) Also, be cautious of what you say. IME doctors typically will quote hyperbole--dramatic things you say like, "I'm dying!"--to attack your credibility. Your credibility is important because there's money involved and the insurance company wants to save money. (3) Also, the questionnaire will often include a pain drawing where you mark the location of your pain on the outline of a human body. Be sure to be very specific and careful of where you mark, and be sure to include little notes about when and where the pain is because most of us are not artists and the doctor will use any discrepancy against you. For example, if you say your neck hurts but you do not mark it on your pain drawing, then the doctor will conclude that your neck does not really hurt. Again, be consistent and specific and explain yourself.
Rebutting the IME: Sometimes, the IME will recommend further treatment or testing, e.g., a nerve conduction study. Almost always, IME doctors will recommend that opiates be tapered off and non-narcotic pain medications used instead. If the IME doctor makes incorrect assumptions or conclusions, it is usually helpful to give a copy of the IME report to your treating doctor and ask your treating doctor to comment on or rebut the IME report. A rebuttal can be very helpful to your case, especially if your treating doctor is a specialist and really knows what he or she is talking about.
The Appointment: If you receive a notice of an IME appointment and know you won't be available that day, then promptly notify the adjustor and the IME doctor's office and have the appointment rescheduled.
Have a Plan B: Again, adjustors are trying to save money and minimize benefits paid to injured workers. It behooves injured workers not to rely on the adjustor's payment of benefits. Be thinking and talking with your spouse, "If the adjustor cuts off benefits, how will we get by financially?" The Boy Scout motto is "be prepared," which is wise counsel.
If you have any questions, call me at (435) 592-1235 or visit www.timothydanielslaw.com.
Friday, January 15, 2016
What If I Have a Pre-Existing Condition?
Let's cut to the chase: If you know you have a pre-existing condition, there are three big issues for us to discuss.
1. Did the pre-existing condition contribute to your workplace injury? Usually, if you have lumbar disc degeneration (as shown on an MRI), and then you have a lumbar disc herniation from working, the judge will likely find that your pre-existing condition contributed to your injury. Many times people do not know they have disc degeneration until they get an MRI. But read on!
2. If your pre-existing condition was caused by working for the same employer, then you likely can still recover workers compensation. The sticky situation is where the pre-existing condition was caused by working for a different employer. In that situation, your lawyer will need to get some details from you and look through your medical records.
3. Now here's the biggie--the rule from the Utah courts and the Utah Labor Commission: "Whether an injury arose out of or in the course of employment, is difficult to determine where the employee brings to the workplace a personal element of risk such as a preexisting condition. Just because a person suffers a preexisting condition, he or she is not disqualified from obtaining compensation. Our cases make clear that 'the aggravation or lighting up of a pre-existing disease by an industrial accident is compensable . . . .' (Citation omitted.) To meet the legal causation requirement, a claimant with a preexisting condition must show that the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition. This additional element of risk in the workplace is usually supplied by an exertion greater than that undertaken in normal, everyday life."
To restate the rule, if you are doing some really tough work (e.g., trying to move an object that weighs 900 lbs by hand, or repetitively lifting 30-lb boxes all day long, or you slip and fall), then you likely have a good case because normally people don't do those kinds of things outside of work. On the other hand, if you have a pre-existing condition and have a flare up at work when you bend over to lift a 30-lb box one time, you will likely be denied workers comp because--as the law says--you just as easily could have thrown out your back moving a 30-lb piece of luggage, which people frequently do in their non-employment life. This rule comes from the Allen case decided by the Utah Supreme Court in 1986. This rule has been applied numerous times by the courts and the Labor Commission. Your lawyer will want to find some good case law that supports your claim. (As of today, I have summarized 281 workers comp cases since I believe it is important to keep up with the Labor Commission's decisions.)
So, if you have a pre-existing condition, do not give up. Rather, just be prepared to tell your lawyer the nitty-gritty details of why you believe your job helped cause your injury. Have a question? Call me at (435) 592-1235 or visit www.timothydanielslaw.com.
1. Did the pre-existing condition contribute to your workplace injury? Usually, if you have lumbar disc degeneration (as shown on an MRI), and then you have a lumbar disc herniation from working, the judge will likely find that your pre-existing condition contributed to your injury. Many times people do not know they have disc degeneration until they get an MRI. But read on!
2. If your pre-existing condition was caused by working for the same employer, then you likely can still recover workers compensation. The sticky situation is where the pre-existing condition was caused by working for a different employer. In that situation, your lawyer will need to get some details from you and look through your medical records.
3. Now here's the biggie--the rule from the Utah courts and the Utah Labor Commission: "Whether an injury arose out of or in the course of employment, is difficult to determine where the employee brings to the workplace a personal element of risk such as a preexisting condition. Just because a person suffers a preexisting condition, he or she is not disqualified from obtaining compensation. Our cases make clear that 'the aggravation or lighting up of a pre-existing disease by an industrial accident is compensable . . . .' (Citation omitted.) To meet the legal causation requirement, a claimant with a preexisting condition must show that the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition. This additional element of risk in the workplace is usually supplied by an exertion greater than that undertaken in normal, everyday life."
To restate the rule, if you are doing some really tough work (e.g., trying to move an object that weighs 900 lbs by hand, or repetitively lifting 30-lb boxes all day long, or you slip and fall), then you likely have a good case because normally people don't do those kinds of things outside of work. On the other hand, if you have a pre-existing condition and have a flare up at work when you bend over to lift a 30-lb box one time, you will likely be denied workers comp because--as the law says--you just as easily could have thrown out your back moving a 30-lb piece of luggage, which people frequently do in their non-employment life. This rule comes from the Allen case decided by the Utah Supreme Court in 1986. This rule has been applied numerous times by the courts and the Labor Commission. Your lawyer will want to find some good case law that supports your claim. (As of today, I have summarized 281 workers comp cases since I believe it is important to keep up with the Labor Commission's decisions.)
So, if you have a pre-existing condition, do not give up. Rather, just be prepared to tell your lawyer the nitty-gritty details of why you believe your job helped cause your injury. Have a question? Call me at (435) 592-1235 or visit www.timothydanielslaw.com.
Thursday, December 3, 2015
Should I Settle?
So, the workers comp adjustor wants to pay you some money to settle your claim. Should you settle?
"It all depends," as most lawyers say. Here are some factors to consider:
1. Is the adjustor using the correct compensation rate? (2/3 of your gross pay at the time of the accident + $5 for each dependent per week)
2. How will you pay for future medical treatment? Private insurance companies (i.e., Cigna, Select Health, Blue Cross, etc.) usually put a clause in their contract saying you--the injured worker--must reimburse them for any costs they incur treating your industrial injury. This is called "subrogation" and can be a real game-changer when considering settlement.
3. Can you hang on a little longer financially so you can have an attorney review the case with you? From what I know now, I would not settle a claim without counsel from an a lawyer. Personally, I will not enter into an attorney-client relationship unless I feel that it is in the client's best interest to have my services.
4. Now back to future medical treatment: What is your prognosis? Are you completely healed? If you've had a lumbar fusion, will you need a revision in the future?
5. How strong is your evidence? This is another area where legal advice is very helpful. Some injured workers do not think they had a pre-existing condition although in the eyes of the Labor Commission judges they do. On the other hand, some injured workers feel their pre-existing condition will prevent them from obtaining workers compensation, which is not always correct. It helps to talk with an attorney who knows the case law. (I'm going to brag now: I have read and taken notes on 275 workers compensation cases so far. Bragging done.)
6. Are you thinking of applying for Social Security Disability (SSDI)? If so, why? Because of your industrial accident?
7. The aggravation rule: Some injured workers might acknowledge that their work injury was only one fact leading to their current medical condition. In Utah we have the "aggravation rule" which basically says if your work aggravated, accelerated, or worsened your medical problem, you may have a valid claim.
8. What if you don't know the precise moment you got hurt? What if you got hurt gradually? In Utah we have the "cumulative trauma" rule. If you get hurt from repetitive lifting, you may have a valid claim. (This rule is currently being reviewed by the Utah Supreme Court.)
So, these are some important factors to consider when the adjustor wants you to settle your claim. The adjustor has a lawyer working for him/her. Injured workers should ALWAYS ask a lawyer for a "free initial consultation." (And be prepared to provide your medical records and pay stubs because that will help the lawyer give you better advice.) Have a question? Call me at (435) 592-1235 or visit www.timothydanielslaw.com.
"It all depends," as most lawyers say. Here are some factors to consider:
1. Is the adjustor using the correct compensation rate? (2/3 of your gross pay at the time of the accident + $5 for each dependent per week)
2. How will you pay for future medical treatment? Private insurance companies (i.e., Cigna, Select Health, Blue Cross, etc.) usually put a clause in their contract saying you--the injured worker--must reimburse them for any costs they incur treating your industrial injury. This is called "subrogation" and can be a real game-changer when considering settlement.
3. Can you hang on a little longer financially so you can have an attorney review the case with you? From what I know now, I would not settle a claim without counsel from an a lawyer. Personally, I will not enter into an attorney-client relationship unless I feel that it is in the client's best interest to have my services.
4. Now back to future medical treatment: What is your prognosis? Are you completely healed? If you've had a lumbar fusion, will you need a revision in the future?
5. How strong is your evidence? This is another area where legal advice is very helpful. Some injured workers do not think they had a pre-existing condition although in the eyes of the Labor Commission judges they do. On the other hand, some injured workers feel their pre-existing condition will prevent them from obtaining workers compensation, which is not always correct. It helps to talk with an attorney who knows the case law. (I'm going to brag now: I have read and taken notes on 275 workers compensation cases so far. Bragging done.)
6. Are you thinking of applying for Social Security Disability (SSDI)? If so, why? Because of your industrial accident?
7. The aggravation rule: Some injured workers might acknowledge that their work injury was only one fact leading to their current medical condition. In Utah we have the "aggravation rule" which basically says if your work aggravated, accelerated, or worsened your medical problem, you may have a valid claim.
8. What if you don't know the precise moment you got hurt? What if you got hurt gradually? In Utah we have the "cumulative trauma" rule. If you get hurt from repetitive lifting, you may have a valid claim. (This rule is currently being reviewed by the Utah Supreme Court.)
So, these are some important factors to consider when the adjustor wants you to settle your claim. The adjustor has a lawyer working for him/her. Injured workers should ALWAYS ask a lawyer for a "free initial consultation." (And be prepared to provide your medical records and pay stubs because that will help the lawyer give you better advice.) Have a question? Call me at (435) 592-1235 or visit www.timothydanielslaw.com.
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