Sabbeth Law’s commitment is to secure full and fair compensation for our clients. To do that, our work has to be more than just a job.
Sabbeth Law represents injured workers before the Vermont Department of Labor and the New Hampshire Department of Labor.
Workers’ Compensation is an insurance or risk based system designed to protect employees who are injured while working. The legal test as to whether an injury should be covered by workers’ compensation is if the injury arose out of and in the course of employment.
There is a lot to know about workers’ compensation. Often, the rules are exceedingly confusing, and the insurance companies that are well-versed in workers’ compensation law will use their knowledge against the injured worker (who is already stressed by the injury or not being able to work) to take advantage of the injured worker and not offer the benefits due.
To try and make some sense of this all, let’s start by covering some tips that apply equally to Vermont and New Hampshire Workers’ Compensation.
If you’ve been injured on the job, regardless of fault, you’re entitled to workers’ compensation benefits.
We discuss the benefits you’re entitled to below, followed by the many reasons your claim might be denied, and what we do to fight bogus denials.
BENEFITS DUE UNDER THE VERMONT AND NEW HAMPSHIRE WORKERS’ COMPENSATION ACTS
If you have a workers’ compensation claim, you are entitled to the following benefits, whether in Vermont or New Hampshire:
1) Disability Benefits:
If you are placed on work restrictions due to a work related injury, and your employer cannot accommodate those restrictions, you are entitled to weekly benefits at your “compensation rate”. In Vermont, your compensation rate is 2/3’s of your average weekly gross wage (of course, there are specific calculations and parameters to determine your average weekly wage). In New Hampshire, you’re compensation rate is 60% of your of your average weekly gross wage (and, like in Vermont, there are specific calculations and parameters to determine your average weekly wage). It is important to note that these are not necessarily hard and fast calculations. There are a number of variables specific to the client that can change the above equations, such as additions for dependents, or an increase in percentage if your average weekly wage falls below a certain number. One of the first things we do with all new cases is to check to make sure that your compensation rate is for the right amount.
So, an example of the above would be if you’re injured at work and your doctor says you cannot work for 4 weeks due to the injury. Let’s say that your compensation rate is $500. You would receive weekly checks of $500 for that time you are out of work. This is called Temporary Total Disability benefits.
Now, let’s say that after four weeks you are allowed to return to work, but with restrictions. Unfortunately, your employer can only take you on for reduced hours due to your restrictions, and you end up earning only $250 per week due to the reduced hours. You would then be entitled to payment for an additional $250 (to make you “whole” at your compensation rate of $500) until you can get back to where you were. This is called Temporary Partial Disability benefits.
Finally, in Vermont, if you attain what’s called “maximum medical improvement” (also known as “MMI” or “medical end”) you can no longer be entitled to temporary total disability benefits or temporary partial disability benefits. Maximum medical improvement is both a medical and legal term that means your recovery has gotten to a point where no further significant improvement can reasonably be expected. Essentially, it means that you have more or less plateaued in your recovery.
When you attain maximum medical improvement in New Hampshire, you may still be entitled to temporary total or temporary partial disability benefits. However, the defendant’s insurance company will likely move to have your compensation rate reduced what is called the Diminished Earnings Capacity (or “DEC”) rate. This is roughly 2/3’s of your initial compensation rate.
As discussed in more depth below, you can imagine that many insurance companies are eager to get injured workers to their doctors (referred to as “independent medical examiners,” but better known as “defense medical examiners”). The purpose is to get the injured worker placed at “maximum medical improvement” by doctors that are repeatedly hired by the insurance companies (many times, they don’t actually treat people) so that they can stop paying disability benefits or pay a reduced rate.
2) Medical Benefits
In both Vermont and New Hampshire, the workers’ compensation insurance company is required to pay for reasonable and related medical care, including surgical, hospital services, remedial care, nursing, medications, and such other care as may be deemed reasonable, necessary and related to the work injury. All of these costs should be covered in their entirety so that there are no copays or other bills that the worker is personally responsible for.
In addition, the injured worker is allowed reimbursement for mileage in traveling to and from these appointments, but only to the extent the total mileage for the medical appointments exceeds the mileage of the injured worker’s commute to work was at the time of the injury. Meals and lodging can also be covered depending on the circumstances.
As you have guessed, the insurance companies are very quick to dispute what medical treatment is “reasonable, necessary, and related,” and will often rely on their defense medical examiners to contradict your doctor’s suggested treatment plan if it’s to the insurance company’s benefit.
3) Permanent Impairment
We spoke a little bit about “maximum medical improvement” (aka “MMI”) above, which refers to when you have gotten to a point, medically, where no further significant improvement can reasonably be expected. Unfortunately, in most cases, when an injured worker gets to MMI, they often are not back to where they were prior to the injury.
To try and illustrate this point, let’s use numbers.
Using a scale of 0 to 10 (0 being the worst, 10 being the best), let’s say that you were at a 10 prior to your injury. However, when you suffered your injury, you went down to a 5 at your worst. After a lot of long hard work and recovery, you get back to a 9 at which point you reached MMI. Well, you can see that you are now 10% below where you were prior to the injury. And, because you have reached MMI, you are not expected to significantly improve on that.
In this case, whether your claim is in Vermont or New Hampshire, a doctor should evaluate you for an impairment rating utilizing the AMA Guides to the Evaluation of Permanent Impairment, 5th Ed. Preferably, your treating physician would do the impairment rating; but, if he or she is not trained to do so, a doctor who is trained to do impairment ratings using the Guides would. Based on your impairment (utilizing your impairment rating, your compensation rate, and other variables), you would be entitled to some amount of money based on your impairment.
The tricky part here is that the insurance company will almost always send you to a defense medical examiner that it chooses and pays for, and the defense medical examiner will almost always do everything he or she can to give you the lowest impairment rating possible instead of the most accurate impairment rating possible. We combat that strategy on a regular basis, as discussed more below.
4) Vocational Rehabilitation
Too often, injured workers are unable to return to the type of work they’ve done their whole lives due to medical restrictions from the injury. If an employer is unable to take you back because of your restrictions, you will likely be entitled to vocational rehabilitation.
Vocational rehabilitation is a program that trains injured workers to become a viable employee in a new field that the employee is interested in, and that pays similar to the job the employee was working at the time of his or her injury. For example, if you’re a truck driver and sustain a severe left ankle fracture, you probably will not ever be cleared to go back to driving tractor-trailers and the heavy clutching required to safely operate a semi. So, the workers’ compensation insurance company would be required to pay for your retraining in a new field of employment. You might look to train to be a surveyor, or any number of other professions you’re interested in and that has a viable job market. Depending on your background, the training might involve computer classes or field training, or require that supplies be provided to you.
We work closely with our clients and their vocational rehabilitation counselors to ensure that the process runs smoothly and fairly, and puts our client in the best possible position to succeed and rejoin the work force if at all possible.
COMMON BOGUS DENIALS OF WORKERS’ COMPENSATION CLAIMS
Again, workers’ compensation could not be a more simple: if your injury arises out of and in the course of your employment, you’re covered. However, I cannot begin to count the amount of times I’ve had injured workers come to me with patently absurd and insulting denials of their claims. Sure, there are some claims that are legally and factually more complex than others — we litigate those claims on a daily basis. But it’s what I refer to as “bogus denials” that I see most often. And it almost always starts at the very beginning.
1) “You didn’t report it then and there, so it didn’t happen.”
It’s easiest to illustrate this denial by example:
It’s Monday, July 1st and you report to your work. After you’ve arrived at the office or the worksite, you’re moving an item and lose your balance. You begin to fall, but catch the item you’re moving. In fact, you don’t even fall, but you twist yourself. Before you know it, you feel a painful sensation radiating from your neck down your shoulder and into your arm. Because, like most of us, you just want to get on with it, you don’t say anything to any of your coworkers, but simply finish out the work day and head home.
Throughout the evening and into the following day, you notice this pain begins to worsen. The next day you report to work and you’re sore. You realize that your injury is getting worse; but, again, you want to get on with it, finish your shift and get home. And so you do. We’ve all been sore before. You figure you’ll be fine the next day. You’re not.
When you awake the next day the pain is still there, and finally it dawns on you: You better get to the doctor to get checked out.
Bad news: Your doctor breaks it to you that you’re out of work and require additional medical treatment.
You call work, tell them what happened, and they pass the info along to their workers’ compensation insurance company. The conversation turns from here:
Insurance company: “When was the injury reported?”
Your employer: “Today.”
Insurance company: “But your employee claims it happened two days ago?”
Your employer: “Yep.”
Insurance Company: “But, to be clear, your employee is reporting it for the first time today?”
Your employer: “Yep.”
Insurance Company: “Did anyone see him get injured?”
Your employer: “Nope.”
Insurance Company: (without further inquiry) “Thank you, we will be denying the claim.”
Your Employer: “Okay.”
Now you have no income. You have no access to medical care outside your personal health plan (if you have one) and the deductibles and copays that accompany it. You have no job security. The system you’ve supported as an employee since you began working has tossed you by the wayside.
2) “Preexisting condition. We’re not responsible.”
You’ve been working for years. Like most people over the age of 30, you have some degeneration/arthritis in your joints. For this example, let’s say specifically in your shoulder.
You’re lifting boxes for work, and you’re suddenly struck with a sharp, biting pain in your shoulder. It’s severe, and you know you didn’t just pull something — you know you’re injured.
You do all the right things: you immediately report the injury to your supervisor or coworker, explain how it happened, and go to the emergency room. The hospital performs an MRI which shows multiple rotator cuff tears, which clearly started some time ago. However, you never had any symptoms prior to the workplace injuries. That last box you moved was the proverbial “straw that broke the camel’s back.”
The insurance company receives your medical records showing that there was some preexisting tearing. Bang! Claim denied.
The law of workers’ compensation is clear: Even when there is some underlying or pre-existing degeneration, if you don’t have symptoms and sustain an injury at work that “breaks the camel’s back” and causes symptoms requiring treatment, it is covered. There’s very clear logic behind this law. Again, anyone over 30 years old almost definitely has some degenerative conditions. But it doesn’t mean we’re inhibited or injured. Once you become injured, and it relates to the degenerative condition…well, no such injury would ever be covered if not for this rule. Insurance companies could always point to some underlying but meaningless condition. It’s not allowed because it doesn’t make sense. The insurance companies know this, but they know you probably don’t. So they exploit this knowledge to issue a bogus denial, knowing you probably will never be the wiser. I see these denials tens of times per year. Like other “bogus denials” we quickly get up to challenge and win these disputes.
3) Repetitive Motion Injuries
Repetitive Motion Work Injuries (work injuries that occur overtime as a result of repetitive motions necessary at work) are prime targets for denial in Vermont, and are almost always denied in New Hampshire. The argument is that you can’t prove the injury is related. Well, if it’s not related, you can’t; but even when it clearly is related, it is denied anyway.
Again, a real life example (with changes to protect anonymity) that reflects countless cases I’ve litigated:
John Doe works in a assembly factory putting together widgets requiring more or less the same repetitive motions over a prolonged period of time. Throughout this time, John has experienced increasing pain, tingling and numbness from his elbow into his pinky. He notices increased difficulty doing his work, and doing stuff at home, such as grabbing milk out of the fridge. He goes to the doctor.
Important side-note (as touched on above): Like all truly independent doctors, John’s personal physician has no “skin in the game.” His doctor doesn’t benefit from the source of the injury. He’s a practitioner that treats patients — he does not work for insurance companies. His only job and motivation is to diagnose the injury and make his patients better, whatever the source of the injury.
After an exhaustive examination, John’s doctor diagnosis his injury as severely inflamed tendonitis, and concludes, without question, that John’s injury is a direct result of the repetitive motion work he does for his employer.
However, the insurance company denies the claim anyway as “unrelated,” and ushers you off to see one of its defense medical examiners that it uses time and again. The defense medical examiner will almost undoubtedly state that the injury is unrelated. They will find any excuse for the injury other than the obvious one. And the denial will remain in place pending battle. I rarely cease to be amazed by how little care is put into the denial when these are brought to me. And so we fight.
4) “It didn’t happen at home base. We’re not responsible.”
Many people throughout Vermont and New Hampshire have jobs that require them to travel. For example, housepainters and other contractors will often meet at a warehouse or some other type of headquarters before heading to the job site where the work is to be done. In most cases, if you’re involved in a motor vehicle accident to or from one of these jobs, it will be covered by workers’ compensation.
Likewise, if your job requires you to deliver or transport materials to job sites, if you happen to get in a collision, you would also be covered by workers’ compensation in addition to any potential claim against a negligent party that caused the collision. Regardless of fault, you would most likely be covered under workers’ compensation.
There are countless other examples of travel that is covered under workers’ compensation that would be covered if you’re involved in an accident and are injured. The employer or insurance company rarely offers or even knows that you’re entitled to work comp benefits under these circumstances. My clients are often surprised to learn that they are.
5) Your Claim Has Not Been Denied. Do You Need a Workers’ Compensation Lawyer?
Almost every ongoing workers’ compensation case I’ve evaluated – even just as a favor for a friend – has displayed inadequate compensation as required by the Work Comp Acts. For example, I have had people bring proposed settlements to me for review just prior to signing them, and almost always find tremendous omissions amounting to thousands of dollars. Some of them are obviously incorrect impairment ratings by some of the usual culprits (many times no impairment rating has been done at all!). Often times, huge portions of disability benefits haven’t been paid, and medical bills remain open because the company simply didn’t bother to pay them or erroneously argued they were unrelated. Vocational Rehabilitation hasn’t been offered when required. Most importantly, the insurance company fails to account for a proper accounting of future medical expenses, and when the settlement is signed, the employee has no other recourse. Amazingly, oftentimes it’s the insurance company’s refusal to simply return a call.
If you’re claim is open and being adjusted, have a workers’ compensation attorney review it. In my practice, we offer free analysis and consultations. Hopefully all is well and you can check back in with us as you see fit. The value of peace of mind in learning your claim is going properly, or, alternatively, catching issues before the horse is all the way out of the barn and running amok, is well worth your time and is free.
We specialize in workers’ compensation cases throughout Vermont and New Hampshire. If you would like to discuss your case or potential claim, call me at 802-457-111 or click here. I will be more than happy to speak with you free of charge. If I do not take your case, I will do my best to give you direction.