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The ABC’s of Worker’s Compensation Wage Replacement Benefits

When a work injury causes an injured worker to be unable to perform work of the same character or nature of the job the worker was doing, the worker is entitled to Temporary Total Disability (TTD).  TTD is calculated as 2/3 of their Average Weekly Wage (AWW), which is derived from the earnings history for the 52 weeks immediately prior to the work injury.  TTD is due until either the worker returns to work or the injuries reach a state of maximum medical improvement.

However, if the injury results in the worker being able to perform work within temporary restrictions, the employer may offer the injured worker work within those restrictions.  If the worker earns less than the AWW while performing the temporary light duty job, temporary partial disability (TPD) is due.  TPD is calculated as 2/3 of the difference between your AWW and the amount you actually earn while on light duty.

We see TPD as the forgotten benefit.  When the insurance company hears that the injured worker has returned to temporary light duty work, they seldom ask if there is any partial wage loss.  If you are injured at work, and return to temporary light duty work, you are entitled to TPD if you are earning less that your AWW for any given week.

Here are two examples:

Joe’s AWW is $700, so his TTD rate is $466.67.  Joe is being treated for his injury and has been taken off work completely, so he receives $466.67 a week in TTD benefits (after satisfying the 7-day waiting period).

Mary’s AWW is $700, and which includes regular overtime.  Her TTD rate is also $466.67.  Her hourly rate is $10 and she averages 20 hours of overtime a week.  She is still treating, but her doctor has released her to work with restrictions.  Her employer offered her a light duty assignment that accommodates those restrictions and pays the same hourly wage but is only 40 hours a week.  Her light duty weekly wage is $400, which is less than her rate of TTD.  So, she is entitled to 2/3 of the difference between $700 (her AWW) and her actual earnings ($400).  The difference is $300 making her TPD benefit $200 for this week.

Both workers in the examples above had the same AWW and TTD rates, but because the intent of TPD is to prevent an injured worker from being penalized for returning to work as quickly as possible, the worker who returned to a light duty assignment earned more per week than did the injured worker who was off work completely.   It should be noted that the amount a worker earns on light duty often varies week to week, so the calculation will also vary and TPD may not be due every week.

The attorneys at KLEZMER MAUDLIN are experts in defending work injury claims.  We can help you get the treatment and benefits you need and the settlement you deserve.

Klezmer Maudlin Court of Appeals Victory

Congratulations to Attorney Nathan Maudlin and our client, William Gordon. This month, the Indiana Court of Appeals reversed the decisions of the Indiana Workers’ Compensation Board and Full Board and awarded our client 121 weeks of TTD pay after the Court of Appeals determined that the employer failed to properly notify our client of the consequences of refusing light duty work.

Click here for the next of the full Court of Appeals Decision: http://www.in.gov/judiciary/opinions/pdf/04191602ewn.pdf

Nurse Case Managers Are Not Always Patient Advocates

 Our office receives many, many compliments about nurse case managers, nurses who are simply individuals hired by insurance companies to facilitate medical care.   However, we also receive a great deal of complaints.  Please remember that there are many excellent nurse case managers who assist patients, care about the patients, and advocate for the patients.

Unfortunately, there are some nurse case managers that are not excellent.  Sometimes they identify themselves in a misleading way to injured workers as “patient advocates.”  In reality, nurse case managers, oftentimes not even nurses, are hired by insurance companies to help contain cost.  Why else would an insurance company hire a nurse or individual to monitor an injured workers medical care, attend appointments, and communicate with the treating physician?

The State Workers’ Compensation Board, on its website, has a list of general rules and requirements for nurse case managers.  Nurses are clearly prohibited from misleading an injured worker and indicating they are a patient advocate.

If a nurse case manager has been assigned to your work injury case, please remember that the nurse is hired by the insurance company to contain medical costs.  Yes, you may have a nurse assigned to your case that cares about you and wants what is best for you, but many nurse case managers do not.  Good luck

Temporary Partial Disability

Many times when a worker suffers an injury that results in temporary restrictions, the employer provides work within those restrictions.  Many times, employees are restricted to work 40 hours instead of regular overtime and it has an effect on their average weekly wage.

The rule in temporary partial disability is that during the period of doing light duty if the person earns less than they did at the time of their injury, they are entitled to two-thirds of the difference.  For example, if the average weekly wage at the time of an injury is $900 (gross), and during light duty because of being unable to work overtime or for some other reason, the employee actually earns $600 (gross) there is a different of $300 and the employee would be entitled to $200 in temporary partial disability.

In that same example, if the injured employee was totally off work the temporary total disability rate (TTD) would be two-thirds of the average weekly wage or $600.  Many times the employee believes he may not earn more than the TTD rate while working light duty.  This is not correct.  In the example above, the individual actually earned $600 performing light duty and they are still entitled to two-thirds of the difference between the average weekly wage and what they actually earned.  This is a common misunderstanding and you need to make sure that you are getting everything to which you are entitled under the law.

BIGOTRY IN WORKER’S COMPENSATION CASES

It becomes apparent to me that employees who suffer injuries suffer a form of prejudice or bigotry from the medical profession in worker’s compensation.  In a vast majority of my cases, my client’s describe how the doctors and other medical professionals treat them as if the injured employee is “trying to get away with something.”  It is a real problem. I know of many cases where doctors enjoy wonderful relationships with their non-work related patients but very poor relationships with the work related patients.

Since Indiana gives the right to furnish medical treatment to the employer, the stage is set for this bigotry to continue and probably grow.  There is a built in friction between who is paying for the service and selecting the doctor, and who is receiving the service.  Many times I meet a physician new to the worker’s compensation arena and feel hopeful believing that they have the best interest of the patient at heart.  However, as usual, it seems that after four or five years of the employers or their insurance company’s treatment of the doctors, they tend to see worker’s compensation patients as more trouble.

Perhaps this “trouble” is related to difficultly in receiving payment, getting authorization for services, having to answer the nurse case managers who follow patients around, and the worker’s compensation system in general. Nevertheless, it is wrong.

My advice, is to the fullest extent possible, to talk to the doctor in a calm objective fashion, explain your symptoms to the doctor, and simply ask the doctor his professional opinion on what is best.  I do believe that doctors went to medical school so that they can help other people.  If the injured worker vocalizes their trust and confidence in the doctor, I think it will be returned more times than it is not.

¿Eres indocumentado y lastimastes en el trabajo?

Hablamos con muchas trabajadores indocumentados, especialmente los de origen latino, que tienen miedo de buscar recompensación cuando lastimen en el trabajo.  Es una preocupación normal.  Nuestra firma ha servido cientos de clientes indocumentados y ninguno de ellos ha sido deportado ni han sufrido otro tipo de retribución debido al caso que representamos.  Es probable que su empleador ha contratado muchas trabajadores indocumentados al mismo tiempo y estamos seguro de que usted es un trabajador excelente.  Si experimentes un accidente en el trabajo, debes sentir comodo buscar recompensación sin tener temor que algo mal va a pasar.

construction workerAntes de presentar un clamo, tienes el derecho de hablar con un abogado y/o con el comisión para recompensación para trabajadores que lastimen en el trabajo en el estado de Indiana.  Nuestra firma tiene una traductor billingue, Janell Hanna, con quien puedes hablar.

Should you be afraid to file a workers’ compensation claim?

filling up a work injury claim formMany injured workers who contact us are fearful about filing a workers’ compensation claim. If they still work for the same employer, they are fearful that the employer will retaliate, give them the cold shoulder, and/or be unhappy with their decision to file a claim.

In Indiana, it is illegal for an employer to retaliate against an employee for filing a workers’ compensation claim. Your employer purchased workers’ compensation insurance to cover them in the event an employee is injured. If your employer gives you a hard time after you file a claim, that is something you can discuss with an attorney. Good luck.

I was hurt at work – can I get pain and suffering?

One of the most common questions we are asked by injured workers is whether they can get money for pain and suffering.  Under our workers’ compensation laws in Indiana, injured workers cannot receive money for pain and suffering for the work related injury.  There is an exception under Indiana law, but only for workers who have the right to sue a third party responsible for their injuries.  Under the civil laws in Indiana, an injured worker can receive pain and suffering if the worker has the right to sue a third party.

Let us illustrate – Let’s say that you are hurt at work driving a semi-truck for a trucking company and are rear-ended on a highway by someone working for another company.  Since you are working at the time of the accident, you will be eligible to receive Indiana workers’ compensation benefits.  These benefits do not include money for pain and suffering.  However, you would also have the right to sue the gentleman who rear-ended you since he worked for another company.  This case is called a third party case, or a civil case.  Under the civil laws in Indiana, you can receive money for pain and suffering.

Many injured workers do not have a third party case because they were hurt at work not due to the fault of any other party.

Permanent partial disability—the non-existent benefit

Let’s be honest.  The Indiana workers’ compensation laws are not great.  One of the biggest inequities occurs when an injured worker suffers an on-the-job injury that is significant and permanent but not serious enough to render the worker totally disabled.

Let’s digress.  In Indiana, injured workers who suffer permanent work injuries and can return to some reasonable employment, receive a settlement based upon a percentage or PPI (permanent partial impairment).  For example, if a worker injured his spine, undergoes a lumbar one-level spinal fusion and is assigned a 10% PPI rating, that worker might be offered a settlement of $15,170.00 (10 x $1,515.00).  What if that worker held a high paying job and can now only earn low wages post-accident?

In Indiana, workers who can return to some reasonable employment only receive a PPI settlement.  There is NO benefit to make-up for the future lost wages caused by the loss of the high paying job.  In Indiana, a worker can only receive future lost wages if he or she cannot return to any reasonable employment.  These totally disabled workers can attempt to receive the highest benefit called permanent total disability or PTD.  This benefit pays the worker a weekly check for 500 weeks and those checks can be extended via the Second Injury Fund.

So, Indiana law is not good.  There is no benefit for future lost wages for workers who return to work.  In Indiana, permanent partial disability does NOT exist.

 

Slip and Fall Injuries at a Construction Site

slip and fall constructionSlip and fall accidents are common in the workplace, especially in the construction industry. Over 25,000 fall accidents result in death each year, and falls from heights are the leading cause of fatalities in construction. Slip and fall accidents range from slipping and falling on a slick surface to falling off of scaffolding or even a rooftop.

Fall hazards are present at most worksites and construction workers are exposed to these hazards every day. A fall hazard is anything that could cause you to lose your balance or support and result in a fall. Any walking or working surface at a construction site could be a potential fall hazard.

Each slip and fall case is different, and OSHA has put together standards to help keep construction workers safe while on the job. For example, when working on scaffolds, your employer should provide fall protection, such as guardrails, especially when working over dangerous equipment and machinery.

If you are the victim of a slip and fall accident, make sure to seek medical attention immediately and file an accident report with your employer.

As a victim of a slip and fall accident, you must document all aspects of your accident and injuries. Take pictures of the scene and also of the injuries you sustained. Get statements from anyone who witnessed the accident to help prove your case. Keep track of all of your lost wages, medical bills and transportation expenses throughout the process.

The lawyers at Klezmer Maudlin can help you file all forms and meet deadlines as well as guide you throughout your lawsuit as your workers’ compensation and personal injury lawyers. Call us at 317.569.9644 to speak to an attorney now!