Avoiding the Potholes of Workers Compensation

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Practice Areas: Workers Compensation

It should be easy for an injured worker under the South Carolina Workers' Compensation Act to file his claim, get medical treatment, get temporary compensation, and a permanent disability award at the end of the case. But, it is not so easy to get these benefits all through the case because there are so many potholes along the way, with both admitted and denied cases.

Some of the potholes are as follows:

1. Employer Reporting

Employers are supposed to file a 12-A First Report of Injury with the insurance company as soon as possible after an employee gives notice of a work injury. Some employees take up to thirty days or longer if they think the claim is bogus. Meanwhile, you are sitting there at home getting promises but no paycheck and no doctor.

2. Compensation Rate

The employer may under–report your wages in determining your compensation, which in turn, lowers your final award, if not corrected.

3. Doctor Restrictions

The doctor may give you a temporary restriction such as no lifting over 20 lbs., but the employer may keep making you lift 50 lb. boxes to try and run you off the job. Some employers just have a one man lay off – you. Some employers don't have light duty available.

4. Medical Testing

Sometimes insurance companies will deny an expensive but necessary diagnostic test, such as a lumbar MRI. By statute, they can withdraw their acceptance of a claim up to 150 days after the claim is filed for any reason. Even after that, they can present medical evidence that the test is for a prior condition.

5. Temporary Compensation

Insurance companies don't always agree with Claimant's on when temporary disability should start. But if the insurance adjuster offers three weeks of back pay to the Claimant against his offer of six weeks, he is going to take it because all of his bills are behind. What the Claimant doesn't know is that he can put the disputed three weeks into issue at a final hearing and get a Commissioner to rule on it.

6. Disability Award

A disability award is based in large part on the permanent partial % impairment to the injured body part as determined by the treating doctor. However, an impairment rating is not the same as "disability". Disability is the Claimant's loss of use of that body part in the workplace as a result of the impairment.

Some doctors simply quote the AMA Guide in giving a man a 15% impairment. The trouble is, that's the only half of the story. They should also give the permanent restrictions, such as: no lifting over 10 lbs., no climbing, and no crawling.

If the above restrictions were applied to a 45 year old laborer with a fourth grade education, a great argument could be made for total and permanent disability. Unfortunately, the doctor's permanent restrictions may not get in the record at the final hearing. The Claimant Ziggie Rainbow may be in his comfort zone, counting on the insurance company lawyer for all his evidentiary needs.

7. Aggravations of Pre-Existing Conditions

If truck driver Harvey Lunchpail broke his leg climbing up to the cab, it would not matter that his leg was already weak from arthritis, the injury is compensable as a "permanent aggravation" of a pre-existing condition.

Assume Harvey goes into surgery and does O-K until a blood clot is discovered. He spends an extra five days in the hospital and has to put the last five days on his health insurance because the workers' compensation carrier refused payment on the ground that Harvey was on high blood pressure pills. Harvey's cardiologist tells Harvey that the clot was caused by excessive bleeding at the surgical site and that he has developed phlebitis. Harvey makes a mental note to get his record.

Unfortunately, Harvey forgets to put the doctor's note into evidence. It will cost him. Instead of getting five hundred (500) weeks of compensation and medical treatment for life for a leg injury with onset of phlebitis, he will get 48.75 weeks for a 25% disability to the leg.

If you have been injured on the job, I can help you get across those potholes in the road. I've practiced workers' compensation law in South Carolina for 27 years.

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