Posted on Monday, December 19th, 2016 at 2:00 pm
The employer insurance company may not play by the rules and they often find many ways to attempt to deprive you or cut you off of benefits you may be entitled to under Workers Compensation in Virginia and North Carolina. These attempts can come in a variety of forms, but the following are just a few of the main ones we see:
If an insurance company is not negotiating in good faith, your remedy is simple. Contact an experienced Virginia worker’s compensation attorney such as Joe Miller Esq. He will promptly make sure all paperwork and appropriate motions are filed on your claim. If you assert that you suffered a workplace accident and you are an employee, you should be entitled to 2/3rds of your average weekly wages. You are also entitled to have the insurance company start paying your medical bills related to the work injury for the remainder of your life. If there is no legitimate reason for the insurance company to deny your claim, you may also be entitled to get sanctions, such as having the insurance company pay your attorneys’ fee.
By filing a claim, you start the process to put the insurance company in the position of formally accepting or denying your claim before the Commission.
Of course we must be honest and real. Workers Compensation Laws were designed by Legislators and not necessarily by folks who understand what you are going through. The system is unfortunately not designed to obtain a quick result in a situation where your claim is outright denied. Yes, at the end of the day, you may be entitled to get your back pay as well as medical coverage, a lifetime medical Award and possibly even sanctions against the insurance company and employer. But this could take months, or in some cases longer, if the defense decides to Appeal.
The only consolation is that oftentimes, when defense attorneys get involved and depositions are taken, in these denied claims, if it becomes obvious that there is truly no legitimate defense, the defense attorney may be able to convince his client to simply agree to begin benefits and back down. We have seen this happen many times.
I recall one case where I simply looked up after my client’s deposition at defense counsel and bluntly said: “What am I missing here?” A discussion ensued, and defense counsel admitted he could not understand why the claim was denied. Shortly thereafter, we entered an Award Agreement, and my client received a year of back pay and began to receive ongoing benefits.
That being said, some insurance adjusters are simply stubborn and unethical. They believe the best plan is to resist paying anything and ‘starve you out,’ and damn the consequences. This is very challenging for many folks, especially if you have no other source of income in your household or typically live paycheck to paycheck.
The folks who fair better in these situations are the ones who have savings to survive on for a while, other sources of income in the household such as a working spouse, or relatives who can help until workers compensation can kick in.
Many of these doctors have a working relationship with the employer and the employer’s insurance company, but many employers and insurance companies attempt to bypass even this process entirely by forcing you to seek treatment with the “company doctor.”
These company doctors usually belong to some medical treatment center known for treating injured workers on behalf of insurance companies. They are typically small facilities similar to a “doc-in-the box.” The goal of this “company doctor” is often to get you to return to work as quickly as possible. Many times these doctors will also refuse to refer you to a specialist such as an orthopedic doctor when you clearly require one, or will fail to order the appropriate diagnostic tests, such as MRI’s, to figure out what is wrong with you. While most workers do want to get back to work, they should not return just so the company can stop paying income and medical benefits, especially if the worker is still in significant pain and discomfort.
When we get involved and we see one of these “company doctors” directing treatment, on Virginia cases, we immediately demand a panel of appropriate physicians to get you away from the clutches of these folks and into the hands of at least someone who is a specialist as soon as possible.
If the claim is denied or if the process is taking too long, in Virginia, particularly if you have health insurance, then we advise our clients to utilize their private insurance and seek treatment with an appropriate specialist, and will assist in directing them to a specialist who is covered by the injured workers’ plan.
In North Carolina, switching doctors can be more challenging, because the carrier is entitled to direct all medical treatment related to your claim. In some circumstances, a Motion to change treating physicians or to seek an Independent Medical Examination may be necessary.
The employee has the right to get competent medical treatment and to return to work only when he/she is able to. Employees should review the doctors they are seeing with an experienced Virginia or North Carolina worker’s compensation attorney. If the doctor is not providing proper treatment or forcing you to return to work prematurely, the lawyer can seek to obtain permission for you to see a different doctor or in Virginia, ask for a panel.
Employees should never refuse to see any doctor he or she is directed to see by the workers compensation insurance company. This could result in a dismissal of your case for failure to follow the medical treatment plan.
There is a legitimate way to deal with these “company doctors.” Refusing to treat with them is not one of those ways. If you come across this situation, you should contact a competent Workers Compensation Attorney to help you figure out what to do.
At a defense IME, the doctor may make a determination about your ability to go to work. Often these “independent” doctors, retained by the insurance company, are highly biased against the injured worker. They are hired to gather ammunition to refuse you treatment, or to argue that you are capable of returning to work.
Before you undergo an IME, you should review your claim with a skilled Virginia work injury lawyer. The best defense to an IME is to either depose the IME doctor, or oftentimes, have your treating physician review the report and offer reasons why he or she disagrees with the IME doctor and still recommends the treatment you require.
A lawyer will explain what happens at the IME and what you should look out for. For example, he will tell you to keep note of how long the exam is, what questions and asked, and what physical tests are performed, and generally how to behave during the IME. For instance, antagonizing or screaming at the IME doctor is probably not a good idea.
You should know that for the most part, the IME is usually not determinative of your claim. We argue, for example, that the independent doctor has only seen and examined you on one occasion, is not familiar with your daily aches and pains, how your condition has evolved over time, and how your injuries relate to your job performance.
We also argue, and mostly the Virginia Workers’ Compensation Commission and North Carolina Industrial Commission will give far more weight to the Opinion of an authorized treating doctor as opposed to the IME doctor.
It is important to review with your Virginia worker’s compensation attorney what the nurse case manager can and cannot do. For example, the nurse case manager does not have the right to be with you in the examining room unless you and your doctor consent.
They also do not have the right to countermand doctors’ orders about the treatment facilities where you are referred. That is called “managing” your medical care and they are not permitted to do that in Virginia.
For instance, if a doctor refers you to a specific testing facility he prefers and you hear the nurse balk and say “oh we can’t let you treat there, it’s not in our network,” your antennae should immediately go up. There is no such thing as ‘in- network’ in workers comp. It may be true that the carrier does not yet have an agreement with that particular facility, but it’s too bad. If the authorized treating doctor orders it, then that is where you are going. The NCM must comply.
Unfortunately, many of these “accommodation” or “make-work” jobs are designed specifically to allow the insurance company to cut you off or drastically reduce your benefits—and then get you fired.
You may find that when you return in a light duty capacity, your old boss or new supervisor may be particularly nasty to you, almost to the point of harassment.
This behavior is intentional and designed for one purpose—to get you to be insubordinate so the employer can fire you for cause and end your claim.
If the employer is not paying your pre-injury wage in the light duty job, you should be able to get 2/3rds of the difference between your wages pre-injury and your wages with the new job. This is called temporary partial disability or TPD. Additionally, if you need medical treatment related to your work injuries, you are still entitled to have the insurance company pay for it.
If you cannot do the new work with restrictions, you should return to your authorized treating doctor and advise him or her of exactly which duties are causing you the problems. It is possible that the doctor will pull you back out of work completely or impose further restrictions on your duties.
You may be required to try the work for a short period of time to see if you can really do it.
If you can do work with restrictions, but the employer has no available work for you –then in Virginia, if you are under an Award, you are still entitled to ongoing TTD benefits. If you are not under an Award, then you are going to be cut off of benefits and you must market your capacity to work and likely head to a hearing. See here for a further explanation as to how the Award affects what you must do in Virginia as far as looking for work.
In North Carolina, if it’s an accepted claim, you are also entitled to ongoing TTD, but you should still market or look for work within your restrictions in case there is ever a dispute in your claim. This will prevent the insurance company from ever being able to say that you were capable of getting a job while on restrictions and that they should be credited with all comp payments made to you.
Virginia worker’s compensation attorney Joe Miller has been fighting for injured workers in North Carolina for over 25 years. He has helped thousands of clients get the compensation and benefits they deserve. He is not afraid to contest unreasonable actions and tactics by the insurance company. For help now, please call Joe Miller at (888) 694-1671 or fill out his contact form.