What Not to Do While on Workers Comp

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Although workers compensation is designed to provide benefits for employees who get sidelined by a job-related injury or illness, getting what you deserve means avoiding mistakes that can hamper or void your claim. Here’s a 10-point list of what not to do while pursuing or surviving on workers comp.

Mistake 1: Failing to Report Your Injury

If you’re hurt on the job (or work conditions cause you to become ill), assorted reporting deadlines are triggered — and the deadlines for workers comp vary from state to state.

What does not change is the unwritten rule about job-triggered injuries or illnesses: The sooner you tell your employer (or your employer’s representative: your supervisor, the human resources department), the better off everyone will be.

Yes, everyone.

You, obviously, will benefit. Real-time reporting is the best guarantee against having your injury or condition questioned by your employer or its insurance carrier.

If your injury/illness is linked to a process or condition at your workplace, you’ll be doing your employer a favor to declare immediately you were hurt (or sickened) and how.

“Let’s say someone has an injury, and they say, ‘It’s going to be OK,’” says Dan Siegel, recognized by Best Lawyers as the 2022 Workers Compensation Lawyer of the Year in Philadelphia. “Then, after two or three weeks, they realize, ‘Oh, this is a lot worse.’

“Now, instead of fighting about your injuries, you’re fighting about your own credibility, and that’s just hard. It adds another burden to your claim.”

A delayed report triggers skepticism from the employer. How do you know it happened at work? How do we know you weren’t hurt at home, at the gym, or somewhere else?

Also, you must make this initial report official. Put it in an email with a receipt request so there is an electronic record to which you can refer. And make certain a First Report of Injury is filed on your behalf by your employer.

As for deadlines, most states require an employee to report a work injury within 30 days of the incident (or 30 days of diagnosis for job-connected illnesses).

Reporting an injury/illness and filing a workers comp claim are two separate acts in the process. Having reported the injury, employees have a period of time before the deadline to file a claim, anywhere from 30 days (Alaska) to four years (Massachusetts).

Mistake 2: Failing to Provide Accurate Details of Your Injury to Your Workers Comp Doctor

The importance of providing accurate and complete details to your workers comp doctor cannot be overstated. As much as workers comp is designed to make certain injured employees get the medical care and, in some cases, financial support they need, it also is a legal process. Consider each of your visits with your workers comp physician to be under oath.

As the insurance company or its attorney investigates your claim, they will have access to your medical records, and will compare your statements to those of witnesses and your physician.

You are your own best witness; don’t impeach yourself by understating or exaggerating your condition, by being inconsistent, or by misrepresenting the circumstances surrounding your injury. Be clear, detailed, specific, and consistent.

Was there something unusual about the event — a slip, fall, trip, nearby roughhousing? Were you called on to perform a task that was not part of your customary routine? Did you injure more than one area? Leave nothing out (but make absolutely nothing up).

Mistake 3: Using the Insurance Company’s Doctor

In most states, your attending physician — at least at the outset — will be drawn from a pool of doctors created by, and answerable to, your employer’s workers comp insurance company.

It doesn’t take a third-year law student to see how this arrangement may create a conflict of interest: Doctors paid by the insurance carrier may have an incentive to minimize your injuries and choose cheaper types of treatment or tests. One clue: You have soft-tissue damage, and you’re sent for X-rays, not an MRI.

Each state has laws governing doctor-switching under workers comp. Some allow it from the start. Others allow a single switch, but the new doctor also must come from the insurance company’s roster. And there may be waiting periods.

The best option to know what’s what where you live? Consult a lawyer.

“You need someone on your side who will explain whatever the applicable law is and explain what you, the worker, need to do to protect yourself and make certain you get the treatment you need,” Siegel says. “Because, of course, the first goal is to get back to work. And often, prompt treatment can do that.”

At minimum, however, you are free to consult with other medical professionals for second (and third) opinions. If you have retained legal representation, your workers comp lawyer will almost certainly insist on consulting outside the insurance company’s network.

Mistake 4: Falling for Surveillance Traps

Not every employee who files a workers comp claim will wind up the subject of an investigator’s surveillance. But if your claim has problems, or the insurance company has reason to suspect everything isn’t on the up-and-up, your life may come under inspection.

“Anything people do in public can be watched,” Siegel says. “So clients need to be careful, making sure you’re undertaking only the activities you’re supposed to do.”

Private investigators may track your movements, gathering evidence that weakens your case. You’re not supposed to lift heavy objects, but here are photos of you carrying boxes into the garage. Your shoulder is injured, but here you are painting your house or hanging Christmas lights from the eaves. You injured your back, but here you are with the MVP trophy from a weekend softball tournament.

Lots of times, investigators don’t even have to keep physical track off their subjects. They just capture screen shots of the injured worker’s damning social media feed.

“Anything you post on social media … it can be used, it can be distorted, can be used out of context, and that’s a problem,” Siegel says.

OK, maybe the boxes were light. And you were using only your good shoulder, or a moment later you dropped the roller in agony. And the MVP trophy was because you kept an impeccable scorebook from Friday night to Sunday afternoon. But anytime you’re explaining, you’re losing.

Be perpetually aware of your limitations. Provide no indications, either in the real world or online that you are in any way attempting to game the system.

Mistake 5: Missing Medical Appointments

Here’s the workers compensation insurance business model in a nutshell: Collect premiums, deny claims. Missing, or even showing up late for appointments with doctors or therapists, is among the most common reasons workers comp benefits are suspended.

Missing medical appointments falls under the heading of noncompliance with your treatment plan. Failure to stick to your plan is a quick way to have your benefits suspended.

The same goes for your independent medical exam. It’s hard for the claims adjuster to take your case seriously if you skip the IME. Avoid this costly mistake at all costs.

Oh, you had car trouble or your ride didn’t show? Cabs and ride-sharing services are cheaper than losing several weeks of lost-wages benefits while you get reinstated.

If missing an appointment is inevitable, contact the office as soon as possible and attempt to reschedule right away. A good-faith effort may head off a suspension of benefits.

Mistake 6: Not Returning to Work When Cleared for Light-Duty

At some point during your recovery, your attending physician may clear you to return to light-duty work, with clear, precise, and detailed restrictions. If you are cleared and your employer has a slot available, it could be a significant mistake to dismiss the doctor’s instructions.

Refusing outright could trigger alarms with your employer and the workers comp insurance company, resulting in penalties, up to and including a loss of benefits.

You are not without recourse, however. If you think you’re being rushed, or cannot perform any of the duties described, discuss your concerns with your doctor. If the physician persists with his/her recommendation, return to work, but keep a journal of any symptoms that arise; your assignments should be adjusted accordingly.

Mistake 7: Ignoring the Work Restrictions

On the flip side of the coin, if you are cleared to return to work with restrictions, you are obliged to do two things: Fulfill your assigned, restricted duties to the best of your ability. Also, avoid trying to be a hero.

Going above and beyond may look good to your peers and supervisors, but pushing too hard can result in re-injury, or harming some other part of your body as you attempt to protect or compensate your still-tender parts.

Staying within the doctor’s restrictions applies no matter where you are. No heavy lifting means no heavy lifting, at work or at home. If you’re discovered performing beyond your prescribed limits, your entire workers comp claim may be called into question.

Mistake 8: Taking the First Settlement Offer

At some point, your doctor may declare you have achieved maximum medical improvement, or MMI. That is, in the doctor’s opinion, your condition will not improve with additional treatment or therapy.

This moment can arrive even if you are not fully recovered from your injury or illness. At this point, you may be entitled to a workers comp settlement. You also may be eager to have it over and done with, but wait a while.

Settlement negotiations have lots of moving parts, and it’s almost always a mistake to accept the first offer.

“Rarely is a first offer in anything, ever someone’s best offer,” Siegel says. “It’s best to wait until we can evaluate how bad the injuries are, and are going to remain, before trying to settle.”

Mistake 9: Quitting Your Job

Assuming you are not independently wealthy, quitting your job while on workers compensation could deal a substantial blow to your financial benefits — a big mistake.

Resign and the boss could declare you have chosen to voluntarily limit your income. There goes your wage-replacement benefit. Quitting also could complicate your claim for unemployment coverage.

If you quit after you were cleared to return to work with accommodations or in a different role, you lose the right to claim temporary partial disability payments (which, if you’re earning less, make up the difference in your wages).

Suppose, however, your injury permanently blocks you from returning to your former job. As long as you remain on the payroll and the doctor keeps issuing work restrictions, you’re likely to continue to receive disability checks. If you quit and your employer cancels payments, you may be in line for a permanent disability settlement.

Quitting at any time before you have achieved MMI is a hasty, potentially costly, decision. Until you know your injuries’ permanent effects, you cannot begin to accurately assign a value to a workers compensation settlement.

Mistake 10: Not Hiring a Workers Comp Lawyer

We could have listed this as Mistake No. 1, and it would not have been overrated.

The errors-to-avoid listed above describe a complicated system that almost seems set up specifically to trip the innocent, trusting, or naive.

We’re not going to go that far, but we will point out that, unless you have legal representation, the folks carrying out your claim and responsible for your benefits have a financial responsibility (to their clients and their shareholders) to minimize the amount they pay out.

“It never hurts at all for an injured worker to find out what are their rights,” Siegel says, “and you’re not going to know that unless you talk to an attorney, so you understand what the insurance company is or should be doing.”

Having an experienced, locally based workers comp lawyer on your team is the best way to balance the playing field. Unless your claim is uncomplicated and the insurance company voluntarily pays the maximum benefits, you should at least consult a workers comp lawyer, the earlier the better.

An experienced workers comp lawyer with local offices knows the players (including doctors), the most common work-related injuries, the types of benefits available, and, if it comes to it, the proper value of your settlement.

Failure to retain a workers comp lawyer may be the biggest mistake of all.

About The Author

Tom Jackson

Tom Jackson won dozens of national awards as a columnist for newspapers in Washington, D.C., Sacramento and Tampa. His writing has spread from business to politics to sports with an emphasis on community issues. Tom splits his time between Tampa and Cashiers, N.C. with his wife of 40 years, a college-age son and a yappy Shetland sheepdog named Spencer. Tom can be reached at tjackson@workerscompensationexperts.org.


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