Although workers compensation is a no-fault system, the compensability of a claim often comes into question. The insurance carrier will often try to deny a claim based on pre-existing conditions, the possibility of injuries that occured outside the workplace, or the actions of the injured worker at the time of the injury.
Challenging the insurance carrier’s denial usually involves a hearing before an administrative law judge. If your claim has been denied, we can help you win your fight for compensability so you can receive the benefits and medical treatment you deserve.
Average Monthly Wage
An injured worker’s temporary and permanent benefits are based on his or her average monthly wage at the time he or she was injured. However, the average monthly wage may not be based simply on the paycheck received from the employer. Many factors can be included in the average monthly wage, including wages earned from other employment, room and board, and other benefits offered by the employer.
If you feel that your average monthly wage should be higher, information can be submitted to the Industrial Commission to show that you actually had more income than your basic wages show.
With certain exceptions, an injured worker may only have one treating physician at a time. An injured worker cannot simply decide to visit a different doctor and bill it to the workers’ compensation insurance carrier.
What happens when you are dissatisfied with your doctor’s treatment or you find that you need a different type of doctor? First, you must decide which doctor you would like to see and make sure that doctor is willing to take over your care. Next, a change of physicians must be requested through the Industrial Commission. Once approval is received (assuming the insurance carrier does not protest the change) you may begin treating with your new doctor.
Leaving the State
An injured worker must request permission to leave the State of Arizona if he/she has an active worker’s compensation claim and plans to be out of state for 14 days or more. Many people are unaware of this requirement, and failure to request permission properly can jeopardize the continuous payment of workers’ compensation benefits.
We can request permission for you to leave the State through the Industrial Commission to ensure that your benefits are not disrupted.
Many times, an injured worker’s doctor will say they need a particular treatment, imaging studies, or even surgery, yet the insurance carrier will deny the doctor’s request. Often, the insurance carrier will send the injured worker for an independent medical examination, and base their denial on “their” doctor’s disagreement as to what treatment is appropriate or whether the worker needs treatment at all. Disputes over medical care can slow an injured worker’s recovery and sometimes even result in permanent and unnecessary complications.
If medical treatment recommended by your doctor is being denied by the insurance carrier, or if their answer to your doctor’s request is to send you to an independent medical examination, a request for expedited hearing can be filed (otherwise known as a 1061J request).
The insurance carrier has the right to send an injured worker to an independent medical evaluation (IME). Depending on the circumstance, they may have the right to order more than one — for instance, if surgery is performed between the first and second IME’s. However, IME’s often result in medical opinions that differ from that of the treating physician, and insurance carriers can use those medical opinions to close an injured worker’s claim, deny permanent disability, or deny surgery.
If you have received an unfavorable IME report, a second opinion (or Applicant’s IME) and a hearing may be necessary to make sure you receive the medical treatment and benefits you need.
Release to Work
The workers’ compensation system recognizes three types of work status: off-work, light duty, and full duty. If an injured worker is on off-work status, it is their doctor’s medical opinion that they are completely unable to work due to their injuries. If an injured worker is on light duty status, their doctor believes that they are able to do some form of work and will write restrictions outlining what type of work that should be. If the injured worker is on full duty status, their doctor believes that — despite their injury — they can return to the type of work they were capable of before they were injured. When an IME doctor (see above) releases an injured worker to light duty or full duty when their own doctor has them on off-work status, the injured worker often does not know what to do. Should he/she follow the advice of the IME doctor even though their doctor disagrees? Will such actions put their health and safety at risk? Much litigation within the workers’ compensation system is a result of disagreement between the injured worker’s doctor and an independent medical evaluator over work status.
If you are in this position, call for a free consultation. We can help you determine your best course of action and can request a hearing to fight for your right to follow your treating physician’s advice.
Loss of Earning Capacity
There are two types of permanent disability in the workers’ compensation system — scheduled and unscheduled. If an injury is to an arm or a leg, a hand or a foot, any permanent disability is said to be “scheduled.” That means that compensation for that disability is determined by means of a schedule and a formula. If, on the other hand, an injury is to the trunk (which includes the head, neck, torso, back, shoulders, and hips) then the injury is “unscheduled.” There is no schedule to determine the disability payments. Rather, the focus turns to “Loss of Earning Capacity.”
A labor market expert is necessary to determine to what extent the injured worker’s injuries have affected his/her ability to earn as much as he/she was able to earn prior to being injured. This process can be complicated and, when left in the insurance carrier’s hands, it can be difficult to know whether you are actually going to receive all you are legally entitled to.
Obstacles we can help with…
Workers Compensation Legal Services - Attorney in Prescott
There are many issues that may arise during a workers' compensation claim that can be challenging if you do not have legal representation.
When an injured worker is unable to return to his/her previous occupation because of his/her injuries, retraining can often help the worker develop new skills to enter a new occupation. Retraining may be available through the insurance carrier or through the Industrial Commission. In either case, a vocation rehabilitation counselor will work with the injured worker to determine the best course of action. It may be college, it may be trade school, or it may even be skills learned on the job.
If you are have reached maximum medical improvement and your doctor says you will not be able to return to your date of injury occupation, you may be a candidate for retraining!
Scheduled awards depend on the percentage of impairment found by the treating doctor. At least, that is the way it sometimes goes. Instead of basing a scheduled award on the records of an injured worker’s treating doctor, insurance carriers often base it upon the findings of their independent medical examiner. If that doctor, who is not the injured worker’s treating doctor, claims that the worker has zero disability or impairment, the injured worker can receive nothing in the way of a scheduled award!
In cases such as this, a hearing is necessary in order to allow the judge to choose between the opinion of the independent medical examiner and the injured worker’s treating physician or other doctor chosen by the injured worker.
Once a claim has been closed and the time period in which the closure can be protested has passed, there are still certain circumstances that allow reopening of the claim. In fact, claims that have been closed for years can be reopened if the right criteria are met. To reopen a claim, it must be shown that there is something “new, additional, or previously undiscovered” that warrants reopening.
We can help you get the medical evidence you need to reopen your claim, and we can help you win the battle to actually get the claim reopened and start receiving medical care and benefits once again.
Once an injured worker’s loss of earning capacity has become final, the worker will be required to complete an Annual Report of Income. This document lets the insurance carrier know how much the worker is earning and whether they should adjust the worker’s benefits. Sometimes, the insurance carrier tries to reduce a worker’s benefits when the worker receives a cost-of-living raise. Other times, an injured worker may wish to have his/her benefits rearranged (increased) because his situation has changed. Perhaps a job that was available when the LEC was determined is no longer available.
In cases such as this, the injured worker or his/her representative must file for rearrangement with the Industrial Commission of Arizona.
Once an injured worker’s claim is closed, supportive care is often awarded to maintain the worker’s level of improvement. Sometimes, however, an insurance carrier may fail to award supportive care because their independent medical examiner claims the injured worker does not need it. Another problem seen frequently in recent years is the expiring supportive care award. Instead of an award that continues as long as the injured worker needs it, an award is issued that expires in one year. The injured worker’s doctor then is forced to request a continuance year after year. If something falls through the cracks, it is easy for the injured worker to lose their supportive care.
It is very important that you use your supportive care award and continue to follow up with your doctor as frequently as suggested. Not only will it help you maintain your present level of recovery, but you will have the support you need if your condition worsens and you need to reopen your claim.
Closure of Claim
At some point, every claim will be closed. However, this should only occur once the injured worker has reached maximum medical improvement. This is not to say that the injured worker will be entirely recovered, but that he/she has improved as much as active medical care is likely to allow. If a claim is closed prior to the injured worker reaching maximum medical improvement, the worker’s health may be jeopardized and his/her level of improvement may begin to decline due to lack of medical care.
A hearing before an Administrative Law Judge is often necessary to fight the premature closure, and a second medical opinion can often be helpful to prove the injured worker’s case.
For more legal advice contact us at Laura J Taylor Law Office
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