Weekly Blog
February 8, 2012
Workers' Compensation (WC) Guidelines
Several callers have asked me about whether I can provide them with basic WC information and I am happy to do that here. Today I will print the general WC guidelines that I give to all new clients once their claim has been accepted and assigned to an adjuster.
1. Medical Treatment
Make sure you keep all medical appointments, including physical therapy and diagnostic tests. If you cannot keep an appointment for a good reason, call the doctor's office in advance and reschedule your appointment. If you do not keep appointments the insurance company may accuse you of failure to cooperate in your medical rehabilitation.
Do not make any appointments with doctors not authorized by the insurance company unless you have obtained prior approval to do so. If you do see a doctor without authorization you will be responsible for the payment yourself.
2. Surveillance
It is common for insurance companies to hire private investigators to observe injured workers periodically. Please be aware that you may be under surveillance at any time. Normally, if you are not doing anything you are not suppose to be doing, the surveillance is only for a short period. Of course, the point of this activity is to find that you are not as limited in your activities as you have claimed.
3. Rehabilitation Consultants
The insurance company may hire a rehabilitation consultant, such as a medical case manager or nurse to manage your medical care or a vocational specialist to help you return to work. Please be aware that these consultants main goal is to help you BUT they have been hired by the insurance company. They will file regular reports about their contacts with you.
The rule to follow is simple: Please do not discuss anything with rehab consultants which you do not wish to appear in a report to the insurance company. It is important for you to cooperate and comply with the reasonable requests of these consultants but they are not the ones to discuss questions about your WC benefits or rights. Save those questions for your attorney.
4. Credibility Matters
Remember at all times that your credibility is being tested by everyone you come in contact with. Be sure that you do not exaggerate your problems, but also be sure that you do not minimize them. There is more involved than your benefits - your health will improve only if your treatment is precisely directed to your injury. If at any time you feel that the doctor or another medical specialist is not taking your condition seriously, notify me at once.
January 22, 2012
Eligibility for VA Disability Benefits
I frequently get questions about disabled veterans benefits and the process for applications is similar to the Social Security disability application process. VA disability benefits are available for two groups of veterans - those with service connected disabilities and those whose disability is not service connected.
The requirements for service connected compensation are: (1) discharge under conditions other than dishonorable (2) disease or injury incurred or aggravated in the line of duty and (3) disability is not a result of the veterans own willful misconduct.
When the disability rating is 30% or more, additional compensation is provided for Dependants. There is also special compensation for severe disability. When a service connected injury or disease leads to death there is a dependency and indemnity compensation for the surviving spouse, surviving children and surviving parents.
The requirements for non-service connected pensions are much the same for establishing disability. Additional requirements, however, are that need must be established based upon the veterans limited income and resources, the service must have been during war-time and the disability must be total and permanent.
Denials of benefits are appealable first to the Board of Veterans Appeals and next to the Court of Appeals for Veterans Claims. Representation throughout the process is available by private attorneys who will be awarded an attorney fee if the claim is won or by VA representatives who are provided without fees being charged.
January 10, 2012
Workers Compensation
Last week I wrote about temporary benefits for injuries sustained in an accident at work. There is not a lot of controversy about temporary injury: the company physician usually confirms the injury and estimates the time it will take to recover and return to work.
Difficulties begin to arise when the recovery time is more lengthy or the injury is suspected to be permanent. Long term recovery times are Dependant on numerous medical tests and appointments with specialists. Treatment for the injury will terminate when the worker reaches maximum medical improvement (MMI), and the doctor will assign a percentage of permanent injury to each injured body part, such as a leg or a back, or the whole body.
The next problem you may face occurs when your doctor releases you without giving an opinion about permanent injury. The permanent injury must be documented, however, to be compensable, and that may require a return trip just to get that opinion on the record.
A final word of caution about permanent injury. The release by the doctor who states that you have reached MMI does not mean you no longer have a need for future medical treatment. Your attorney must often fight long and hard to obtain coverage for your future medical needs after the claim has been settled. Beware of settlements which do not address your future medical requirements.
Happy New Year!
January 1, 2012
Worker's Compensation Law
For the next several weeks I will discuss workers compensation. I am frequently asked about the right to temporary benefits for injuries at work.
Temporary benefits are paid after the 5 day waiting period and continue until the employee reaches maximum medical improvement (MMI). Disability in the workplace continues only as long as the employee is experiencing a total or partial loss of wage earning ability. Temporary benefits represent a substitute for wages lost by the employee during this period, regardless of whether that loss is total or partial. If the employee is still technically in recovery, but has returned to work and is suffering no loss of wages, the temporary benefits are no longer payable.
Benefits for temporary total disability (TTD) are payable when the employee is completely unable to engage in work. In each case of TTD, the injured employee is entitled to the lesser of the applicable weekly maximum, or 66 2/3% of the average weekly wage at the time of injury, with a minimum of $25.00 per week.
Benefits for temporary partial disability (TPD) are payable when the employee is partially able to work, and is therefore suffering only a partial decrease in wage earning capacity. The employee may be temporarily and partially disabled from the first day of disability, or may enter a period of temporary total disability, as where one previously temporarily and totally disabled is released by the treating physician for return to light duty or part time work for a period of time prior to maximum recovery.
Next week I will explain how the system works for permanent injuries.
Happy Holidays!
December 15, 2011
Income Protection for Workers Discharged Without Cause
Unemployment compensation is a state insurance system intended to supplement the income of workers discharged through no fault of their own.
The worker's total benefits are a percentage of the average earnings from employment. All private and most non-profit employers who have at least one employee working one or more days a week for 20 or more weeks per year, or who have a payroll of at least $1,500 per quarter, are required to participate.
Workers in covered businesses, if discharged "without cause" (through no fault of their own) are eligible to collect benefits. The amount of benefits and time period for the compensation varies from state to state, but there are federal minimum requirements for the benefits.
The discharged worker must have worked for a minimum time period and must at all times be seeking a job for which he/she is qualified. Benefits will end if the worker refuses a job offer or is not ready and available for work, or fails to follow the necessary procedures for registering each week to report on searches for employment.
In Mississippi there has been a history of attacks against the unreasonable acts of employers, and in those cases which go to the court, the worker frequently wins. The appeals process proceeds from an initial claim to a claim review and then to a hearing, usually by telephone. Either the employer or the worker can appeal an adverse decision to a board of review, and after that, a petition can be filed in the Circuit Court
of the workers home county.
In 1975 I participated in a federal court suit against the employment service. The outcome required that certain rules be established statewide so that the only basis for denial of a claim for cause required proof equivalent to a showing of gross negligence on the part of the worker. That is a difficult test for the employer to meet and if you are met with that challenge, hire an attorney beginning at the hearing stage. You'll be glad you did!
December 4, 2011
Liability for Improper Release of Personnel Information
A frequent concern for job applicants these days is the worry that a former employer will make an unfair or untrue comment about the former employee's work and spoil their attempt to find work.
The rule of thumb is that an employer may furnish a truthful statement concerning the reason for discharge of a former employee. However, if such a statement is not in response to a request or has notations contrary to the statement, it can be used as evidence of misrepresentation.
Even when an employer responds truthfully to a prospective employer's request, the employer may be liable if its response is unfavorable and is made in retaliation for the employee's filing of an EEOC claim or some other employee - protection statute, such as Wage and Hour violations. Retaliatory acts such as these have always been recognized as unlawful discrimination.
The Federal Privacy Act prohibits federal agencies from disclosing personnel records without first obtaining written
consent. Even employment applications may be protected records under this statute.
Some states have similar statutes but Mississippi does not. That leaves established tort law as the source of providing rights for Mississippi workers.
Liability for defamation has always been useful in this area. Defamation cases against employees are often companion claims to discrimination or harassment lawsuits. Civil liability attaches to any release of inaccurate or misleading information about an employee or a former employee.
Another employment - related privacy tort is "public disclosure of private facts." Under this theory, a employer cannot disclose to third parties true but embarrassing private facts about the employee.
The protection of employee privacy has become more and more important as the job market becomes more restrictive. Several such cases are presently before Mississippi courts and I will provide periodic updates on this blog.
November 27, 2011
Discrimination Against Persons With Disabilities
After 40 years of practice involving employment law, I have discovered the value of Mississippi Code Section 25-9-149 which prohibits discriminatory practices in state employment. It is the "handicap" protection that interests me at the moment.
The Mississippi statute gets very little recognition because of the federal legislation which many think has preempted the area.
The Rehabilitation Act of 1973 establishes the first substantial rights for persons with disabilities, prohibiting discrimination by federal agencies and state agencies which receive federal funds.
The Americans with Disabilities Act added to the protection provided by VII of the Civil Rights Act of 1964, empowering the EEOC to enforce the prohibition against disability discrimination in employment.Other legislation, such as the Vietnam Veterans Readjustment Assistance Act, have filled in some of the gaps in coverage by the major legislation.
None of the federal legislation, however, makes up for the fact that our courts have limited the protection of the disabled under the Equal Protection Clause of the Constitution, and that, in my opinion is shameful.
This becomes important because the definition of disability and other restrictions under the ADA and other statutes, may limit the recovery of damages and injunctive relief and may even fail to restrict retaliatory acts by employees.
The broader definition and the greater protection is why I have begun to use the lesser known Mississippi state laws which prohibit discrimination of the handicapped in public employment. After all these years, I may become a States Rights advocate after all!
November 13, 2011
Age Discrimination In Employment
I am getting more and more calls from older workers who have been replaced by younger individuals. I was aware that recent U.S. Supreme Court decisions had increased the burden of proof required to win an age discrimination claim, but I had not realized that companies were using clever new reasons for their decisions to terminate older workers.
It is rare for the EEOC to do any more than investigate a claim and then give the claimant a "right to sue" letter. Litigation in Federal Court is complex, lengthy, and expensive. The filing fee alone is over $300.00.
But I encourage older workers to pursue their claims if they can find an attorney to help them. The newly recognized practice of identifying increased medical costs associated with older workers is a particularly disgusting rationale for firing a long term employee, but it is now happening more frequently.
There is an increasingly common trend to move older workers out of the workforce based upon a supposed link between individual performance and higher health care costs, for example.
The worker has both the Age Discriminatory in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) to use as protection from such tactics.
A frequently used right to fight termination after medical absences is the Family Medical Leave Act (FMLA), which allows employees 12 weeks of unpaid medical leave without risking lay offs. I am in the process of filing such a claim for the first time and I will report on our progress at a later date.
In the meantime, remember that your EEOC complaint can be filed by telephone but it must be done within 180 days of the discriminatory act. Good luck.
November 1, 2011
Affordable Care Act and Senior Citizens
I hate to go to the doctor, but I've had to go several times recently. As a senior citizen I receive Medicare but I had never bothered to enroll in a Medicare D Prescription Drug benefit plan.
After my last office visit, however, I found one of the new prescriptions was quite expensive, so I began looking at plans. I discovered that the HHS website, Heathcare.gov was very helpful and informative and it helped me pre pick a plan that would save hundreds of dollars over a years time.
What I also discovered was that the Affordable Care Act, passed last year, was fulfilling its promise to help senior citizens meet the cost burden of health care. The Affordable Care Act is already putting money back in the pockets of seniors by lowering prescription drug costs and providing free services. In fact a 50 percent discount is now the average savings according to HHS.
And according to AARP, over 17 million seniors have already received potentially life saving cancer screening without co-pays or deductibles. Free preventive care screenings and free wellness checks are now available in most communities.
It is well worth the time it takes to check out Healthcare.gov to learn more. Helping people treat conditions that may become life threatening is much less costly than the care needed after ill health has reached a critical stage. And it will definitely help you lead a more healthy and productive life.
