Are Medical Bills Paid Under My Workers' Compensation Case?

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The short answer is, yes, the workers’ compensation insurance company pays medical bills if they have accepted your workers’ compensation claim.

Workers' Compensation Doctor Determining MMIWhen someone gets hurt on the job, one of the first things that likely goes through their mind is, “How am I going to pay for all of this?” If you take action and inform your employer about the accident, you may be covered under their workers’ compensation insurance. Every company that has over two employees is required to carry workers’ compensation insurance on their employees. You do not necessarily have to have a workers’ compensation attorney for your claim, but hiring an attorney can help you ensure you get all of the benefits and compensation available in your case.

As long as the workers’ compensation insurance agency accepts the injury, medical bills will be covered under workers’ compensation. An insurance company typically does this by filing either a Form 60 or Form 63. As the employee, you must be able to prove the injury or occupational disease was sustained in the course of your employment. One, sometimes-frustrating, experience when dealing with a workers’ compensation case is that the insurance company can choose which doctor(s) you go see. However, if you feel like you should be able to receive a second opinion you can do that by going through the North Carolina Industrial Commission.

If the insurance company denies your workers’ compensation claim then you should have your own insurance company treat your injuries and, through a workers’ compensation claim, you can then have your insurance company paid back the incurred expenses if you are successful in having your workers’ compensation claim accepted.

What is Maximum Medical Improvement in Workers’ Compensation?

What maximum medical improvement means for you?

In its simplest form, maximum medical improvement or MMI, is the doctor’s way of saying “it’s as good as it’s going to get.”  When an injury has occurred and the employee reaches a state where his or her condition cannot be improved, the doctor will inform the patient/client they have reached MMI.  Once MMI is reached, the treating physician is saying no other reasonable treatment can be done to help the patient/client improve.  Although, you may not be 100% better, you have reached a state where you have done everything you can do in that point in time.  All of the treatment options should be exhausted before it is determined a patient has reached MMI.

Workers' Compensation Doctor Determining MMI

If the patient is receiving workers compensation benefits and reaches MMI, his or her condition will be assessed, and the doctor will give a disability rating.  Your attorney should request a written statement from your doctor when you have reached MMI, which should also contain your disability rating.  Depending on the rating, the doctor will advise your employer on what tasks may or may not be performed, these are known as work restrictions.  For example, if you have suffered a back injury but are able to return to work, your doctor may medically advise you to perform sit down or sedentary tasks.  Since a back tends to get stiff after sitting down for long periods of time, the doctor may also advise you be able to hold a position where if necessary, you are able to stand up and work.  Obviously, depending on your condition, it may be hard to hold a position that can do both, and the employer may not have a position where this is possible.  The disability rating is important because depending on your condition, it is a key component in negotiating your settlement amount.

I’ve reached MMI but what if my injury worsens?

Generally speaking, if your case has not been settled and your injury worsens within 2 years after reaching MMI, you should go back to your doctor.  You should not suffer through the pain because you are afraid to go, it’s important to let the doctor know of your condition.  The doctor will medically determine whether your condition has worsened or not and if further treatment is necessary.

If you are not happy with your doctor’s evaluation when they feel you have reached maximum medical improvement, you are entitled to a second opinion.  However, before you proceed you should consult a workers’ compensation attorney who is able to guide you in the right direction.

What is Total and Permanent Disability?

EKG ChartIf you have suffered a workers’ compensation injury, the impact on you and your family can be financially and emotionally devastating.  When the injury results in total and permanent disability, the impact is more profound.  Not only is there the trauma from the injury but there is one less wage earner in the family.

Total and permanent disability is defined by North Carolina General Statute §97-31(17) as “The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability…”  As a result, a paraplegic, quadriplegic or double amputee is automatically determined to be totally and permanently disabled.   An individual with these injuries may return to work and earn wages while still being eligible for total and permanent disability benefits.  For example, an employee who loses both legs in an accident may be able to obtain a job as a clerk or computer programmer that is a more sedentary job.  The injured worker is still entitled to compensation under total and permanent disability.

There are other cases, as outlined in North Carolina General Statute §97-29(d), where an employee may have an injury so severe that the employee is unable to return to work and earn wages in any capacity given the severity of the injury that was sustained.  Often this is the case for a traumatic brain injury or a burn victim.  Although the injury does not comply with the North Carolina Statute §97-31(17), the worker no longer has the capacity to earn a living regardless of the training that is provided.  It is important to note that the employee or plaintiff has the responsibility or burden of proving total and permanent disability.

For an injury determined to be a “total” and “permanent” disability, the injured worker is entitled to weekly benefits and compensation of medical expenses for the rest of his or her life.   The weekly benefits are calculated by

Multiplying          Employee’s Weekly Wage ($862 is maximum weekly wage for 2012)

Times                      66.67%

Times                      52 Weeks

Times                      Anticipated Years Remaining in Employee’s Lifetime

If you or a loved one has been injured in a workers’ compensation accident and suffered a total and permanent disability, contact Duncan Law for a free consultation.

What Happens if I Don’t Receive My Workers’ Compensation Payments on Time?

Welcome to North CarolinaYour temporary total disability check is processed each week by the workers’ compensation insurance carrier, and the check is usually processed on the same day, e.g. Friday, each week.  As a result, you can anticipate consistently receiving your temporary total disability check around the same day each week.

If you do not receive your weekly check from the workers’ compensation insurance company, you may want to wait a couple of days before contacting your workers’ compensation attorney.  Often a delay is caused by the insurance company having a glitch in processing the check for the week or it may simply be a delay caused by the postal service.  If you have not received your check within a couple of days of the date it is expected, contact your workers’ compensation attorney’s office to let them know the check has not arrived.  Your attorney will contact the workers’ compensation insurance claims adjuster to determine the status of your temporary total disability check.  The problem is usually quickly corrected and the check arrives within a couple of days.

Although the delay can is frustrating and may even impact your ability to pay your bills, it is rare that an insurance company intentionally delays the payment of temporary total disability.  However, if the check has not been received in a reasonable period of time, your workers’ compensation attorney can file a motion with the Executive Secretary’s Office of the North Carolina Industrial Commission requesting a 10% late penalty be assessed against the employer.  The Industrial Commission is obviously concerned if an employer or their insurance company is not paying workers’ compensation checks on a timely basis.  As a result, contact your attorney if there is ongoing problem with receiving your temporary total disability checks.

Can I Collect Unemployment and Workers' Compensation Benefits at the Same Time?

North Carolina Workers' Compensation InformationYou cannot receive unemployment and workers’ compensation payouts or benefits at the same time.  The principal behind workers compensation is that you are getting reimbursed for the wages you are missing because you are injured.  Therefore, you should not be receiving any unemployment payments because then you would be theoretically getting paid two wages at one time.

Trying to collect unemployment can also affect the credibility of your workers compensation case.  In theory, you can claim workers compensation because you are unable to work because of a job related injury or illness.  The idea is that while you would like to work but are physically unable to do so.  The policy behind employment compensation on the other hand is that you are fully willing and ready to work, however you are unable to find a paying job.  So if you collect unemployment while you have an outstanding workers compensation claim it is almost like telling one government agency that you are physically ready and willing to work, while simultaneously telling another government agency that you should be collecting money because you physically cannot work.

The only exception to this rule would be if your workers compensation claim has been denied, yet you are unable to work in your old job because of your injury so you were forced to resign.  If you are applying for new jobs that would be considered light work, or less physically demanding than your old job, and you are still unable to find work, then you may collect unemployment while collecting workers compensation benefits.  This however is not very common and collecting unemployment can potentially have a very detrimental effect on your workers compensation case.  So as a general rule you may not and should not collect unemployment while also collecting workers compensation benefits.

What Is A REDA Claim In Workers' Compensation?

Filing a REDA Claim in Workers' Compensation Case

If your employer fires you after filing a workers’ compensation claim then you would likely have a REDA claim against them. So what exactly is a REDA claim?

The Retaliatory Employment Discrimination Act (REDA) is the statute that gives the Employment Discrimination Bureau (EDB) of North Carolina its enforcement power.   REDA created an umbrella agency that could handle various employment complaints from workers’ compensation and whistle blower issues, to protecting those that suffer from certain health problems while in the workplace.   When an employee files one of these various types of complaints, their actions are considered “protected activities.”  This means an employer cannot retaliate if their employee files one of these complaints.

Simply put, REDA makes it possible for employees to file complaints regarding one of these activities without the fear of facing any type of retaliatory action by their employer.  Therefore a REDA complaint is filed when an employer has retaliated against their employee because the employee filed one of these protected complaints.

REDA is most often applied when an employee files a workers compensation claim against their employer.  If the employer decides to in some way retaliate against the employee because of the claim, or the threat of a complaint, then the EDB, acting under the authority of REDA can sue the employer for the retaliatory action.  According to REDA, retaliatory action can range from firing an employee to simply not allowing them to perform an alternate job or work the hours the employee’s doctor regards as appropriate.  If an employee believes that he or she is the victim of this type of retaliatory action, then they may file a complaint with the Employment Discrimination Bureau.

The EDB then investigates any complaints filed and decides whether to pursue the complaint.  The important distinction for a REDA claim is that it is only viable if there is a retaliatory action.  A person who simply has a dispute over workers compensation benefits, such as which doctor they choose to use, etc. would not file a REDA claim.  A REDA claim will only be prosecuted if the employee can show that they were retaliated against because of some other claim or action.

The timeline of a REDA claim is that first there is an issue that makes the employee file a general complaint, this could be a workers compensation complaint, a whistle blower complaint or an OSHA complaint.  Filing this initial complaint is viewed as a “protected activity.”  If an employer then decides after an employee has filed a complaint or has threatened to file a complaint in one of these protected areas to retaliate against the employee, then a REDA complaint may be filed.  Retaliation could mean firing the employee, taking away certain benefits, or demoting the employee.  The Bureau will then investigate the complaint and decide whether or not to prosecute that particular claim.   A REDA claim will not be valid if the employer can prove that their action would have occurred regardless of the employee’s actions.  For example if the employee would have been fired before filing a workers compensation complaint because of past behavior, he or she can still be fired because of these previous issues.  Even though the employee has participated in the “protected activity” of filing a workers compensation claim, this will not shield them for being fired for other reasons.

What Happens if My Employer Doesn’t Have Workers Comp Insurance?

North Carolina Workers' Compensation QuestionsThere are a lot of employers that offer all types of benefits for their workers. However, there are certain things every employer is required to carry. No matter what the perks are, you expect that your employer should have their “T’s” crossed and his “I’s” dotted.   All taxes, insurance, benefits, etc should already be in place.  But what happens if they do not?  What happens if you are injured at work and your employer is not able to cover anything because they do not have worker’s compensation insurance?

Many do not know this, but North Carolina state law requires employers that have three or more employees carry workers’ compensation insurance on those employees.  Whether the employee is part time, full time, or even seasonal; if there are three or more people working for the employer, then the employer is required to carry the proper insurance coverage.  Failure to keep proper occupation injury insurance coverage can, not only jeopardize the operation of the company (meaning that the company could possibly be shut down in the event that an employee is injured and cannot be compensated for the injury) but carries penalties such as fines that can range from $50 to $100 per day.

Some employers will argue that they do not have to carry workers’ compensation insurance because they don’t have employees but, instead, have independent contractors working for them. There are certain other guidelines for independent contractors. However, if your employer has three or more employees and does not have the proper workers’ compensation insurance then they can be fined and you may still be able to recover from the business or from a fund that has been set up to protect those from uninsured employers.

How is the Household Size Determined for the Means Test?

What’s the purpose of the Means Test?

The basic purpose of the Means Test is to determine whether a Debtor is eligible to file Chapter 7 bankruptcy.  Along with other supporting requirements, the Means Test plays a major role in Chapter 7 bankruptcy.  The Means Test also tells us whether a Debtor would need to pay back some of their debts in a Chapter 13 bankruptcy if they do not “pass.”  Simply put, the Means Test determines the Debtor’s monthly income by taking the Debtor’s household’s gross income and subtracting qualified deductions.  By doing this, we can decide whether the Debtor would need to be looking into filing a Chapter 7 bankruptcy or Chapter 13 bankruptcy.

Household Size for the Means Test

There are over 60 different factors considered when determining the Means Test but two factors are more prominent than others. That is the household size and the household income. For purposes of this blog post we will more carefully examine how the household size is determined when looking at the Means Test.

Who’s considered a household member?

Husband and Wife with Dependents | Bankruptcy InformationThis, of course, depends on the Debtor’s living situation at the time of filing and also looking forward.  Generally speaking, if the Debtor has a larger household, it could mean the difference between passing the Means Test to qualify for a Chapter 7 bankruptcy or, instead, having to do a Chapter 13 bankruptcy.  The more dependents or household members you have, the greater the state of median income for a family of that size.  However, a larger household can also work against a Debtor by potentially adding more income and skewing the Means Test.  It’s important to seek the help of an experienced bankruptcy attorney to help you determine your household size, but keep the following in mind.

A household does not simply mean “husband, wife, kids.”  A household consists of all the people who occupy some type of housing unit, whether it’s a house, apartment, etc.  The term household carries broad definitions, but the courts are going to likely focus on if the additional household member is contributing income to the home and paying out expenses.

You should compile some type of income and expenses report within your household to determine what income is going into the home and towards what expenses.  It doesn’t need to be anything fancy, just some type of report on paper so you are able to visually see how they bills are getting paid and by which household member’s income.  This is especially important for those with unique household units.

There is a difference between household members and dependents.  For example, your 13-year-old daughter would likely be considered a dependent and household member.  Where it often gets tricky are for those who may have an 18 year old child or older still living at home.  The courts will likely argue, the child is 18 years old and should no longer be considered a dependent, especially if they are working and paying their own bills.  So let’s say for example this 18-year-old child was working and paying their own bills, but still living as part of the household.  It is possible he or she could be included as part of the household for the Means Test but we would have to list his or her income and expenses.  You may also have a situation where an older relative may live at your home and contribute no income at all.

There are situations where an individual may be included as part of your “economic unit” but not as household member for purposes of the Means Test.  For example, you may have a roommate who contributes towards expenses only and therefore could argue that person is a part of your economic unit only.  The situation changes however if you are cohabiting with the person as a family unit, so discuss your living situation with your attorney.  There are numerous living situations that could apply to your situation but you should let a qualified legal counsel help you decipher your household size and how it will be viewed on the Means Test.

What is Permanent Partial Disability?

Workers' Compensation Doctor Assigning Permanent Partial Disability RatingIf you are an employee that has been injured and filed a North Carolina workers’ compensation claim, you may be entitled to permanent partial disability benefits which is also called “PPD.”  Since workers’ compensation is administered by each state, the amount of compensation for permanent partial disability and how it is administered may vary.  In North Carolina, an employee is entitled to permanent partial disability compensation if the injury sustained is considered a permanent injury but the loss of function to the injured body part is less than 100%.

A permanent disability means the employee does not have the same function to the injured body part that he had prior to the injury, and the employee is not expected to regain the pre-injury function in the future.  In other words, that body part will not ever be the same.  The degree of permanent partial disability or disability rating is determined by a medical doctor that has been treating the injured worker and is not based on the worker’s opinion.  Once the injured worker has reached maximum medical improvement, a disability rating of 0% to 100% is assigned by the physician.  As a result, a strained muscle in the lower back that causes no permanent damage, a 0% disability rating based on the physician’s opinion, would not be entitled to permanent partial disability.  However, if the injury to the back resulted in compressed vertebra, the physician will likely assign a permanent disability rating to the back.  For permanent partial disability, the rating will be between 1% and 99%.  A 100% disability rating would result in permanent and total disability.

It is also important to understand is that an employee entitled to permanent partial disability receives compensation regardless of whether the employee has the ability to work and earn a living in the future.   The idea behind permanent partial disability is to compensate the injured employee for the permanent loss of the body part that was injured.  Compensation for permanent partial disability is based on 66.67% or 2/3 of the of the injured employee’s average weekly wage over the past twelve months.  If the employee has worked for the employer less than twelve months, the period of time worked is used but exceptions may apply.  The maximum weekly compensation is limited to $862 in 2012 based on the North Carolina Industrial Commission.

Another component of permanent partial disability compensation is the body part that is injured.  Each major area of the body is assigned a number of weeks based on North Carolina General Statute 97-31.  The number of weeks compensated ranges from 10 weeks for a toe to 300 weeks for a back.

The components considered in a permanent partial disability are the employee’s average weekly wage, the body part injured, the number of weeks assigned to that body part and the disability rating assigned to that body part.  The best way to demonstrate compensation for permanent partial disability is by example.  In our scenario, we will assume the following for the injured worker.

Average Weekly Wage of Injured Employee$500
Injured Body PartBack
Weeks Assigned to Back300
Disability Rating by Medical Doctor20%

The formula to calculate permanent partial disability is as follows:

Weekly Wage x 66.67% x Weeks Assigned to Body Part x Disability Rating = PPD Payment

$500 x 66.67% x 300 x 20% = $20,000 Permanent Partial Disability Payment

As a result, the injured worker in our scenario is eligible for $20,000 payment for permanent partial disability regardless of his ability to work and earn money in the future.  If you live in North Carolina and have been injured in an accident that you believe has resulted in permanent partial disability, contact Duncan Law for a free consultation at any of our three locations.