Montemaggi Law - Workers Compensation Attorneys

Workers' Compensation Q&A

The Workers’ Compensation Law is designed to help you if you are hurt at work. You could get payments for time lost from work while you get better, ongoing payments if you can’t go back to work, and payment of medical bills.

Despite the best intentions, the system can seem like a complete mystery and results can seem unfair. The list below are just examples of the many problems that can come up in your case and questions you may have. If you are represented by Montemaggi Law, the lawyer assigned to your case and our team of lawyers and staff can help you to understand the system and get you the best results.

How do they figure my payments?

When and how will I be paid?

How often do I need to see a doctor?

Do I need to work?

What medical benefits can I get?

What happens if I go back to work, but make less money?

What if I have permanent problems?

What happens at hearings and will there always be a hearing?

What are all the papers and forms I get?

Do I have to go to the insurance company’s doctor?

What is considered fraud and could I be accused of fraud?

What if the insurance company or my employer is fighting my case?

Can I still get benefits on my old case?

What if I have more than one injury to the same body part?

Will I get a settlement?

Can I sue anyone?

How do attorney fees work?

 

How do they figure my payments?

Compensation payments are determined by taking two thirds of your average earnings in the year before your injury or “average weekly wage”, up to a maximum amount depending on your date of injury. There is also a minimum payment rate that varies depending upon the date of injury. The maximum rate applies no matter what your earnings. This means that if your earnings before your injury were relatively high, you can only get the maximum rate even if it is much lower than two-thirds of your average earnings. Also, your actual payments may be a lot less than the maximum payment rate depending on your average earnings and level of disability.

Your level or “degree” of disability will also effect how much you are paid. Your payments are based on two-thirds of your average earnings and also your level of disability. For example, if you are considered to be 50% disabled, your payment rate will be one-half of two-thirds of your average earnings. Your level of disability is based on your ability to work any possible job. So, you are not considered totally disabled just because you cannot do your regular job. Determining your level of disability can be difficult and having an attorney will help.

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When and how will I be paid?

If you are receiving weekly compensation payments from the insurance company, the checks are usually sent every two weeks. However, this does not always happen and your payments can be much less predictable. The Workers’ Compensation Law requires payment within certain time periods that are much longer than every two weeks which can mean that checks can be sent much later than you expected and still be on time. Our team can help to resolve these problems and try to keep your payments coming as consistently as possible. We also know what penalties the insurance company can be made to pay if they do pay late.

If you are due extra money after a judge makes a decision at a hearing or when a decision is made without a hearing, the insurance company is supposed to pay within ten days of the “Notice of Decision”. If they’re late, we can get penalties from the insurance company for late payment.

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How often do I need to see a doctor?

Your benefits depend a lot on your doctors sending their reports to the insurance company and the Workers’ Compensation Board. The Workers’ Compensation system expects your doctor to send reports with certain information and at certain times. If medical reports are not done right or sent when they need to be, your benefits could be stopped or delayed. We can help by monitoring your file and reminding your doctors what they need to write and when.

Often, doctors will not want to see you as often as you need or stop seeing you if they don’t think there is anymore treatment they can give you. They may refer you to someone else who refuses to provide an opinion on your level of disability or from whom the Workers’ Compensation Board won’t accept an opinion. Worse, you may not be able to find a doctor to give regular opinions on disability because many doctors will not accept Workers’ Compensation cases. These common problems do not stop the need for ongoing medical reports that include a statement of your level of disability. Our team can help you find a doctor who will see you and provide the evidence you need to continue to be paid.

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Do I need to work?

If you are partially disabled, the way Workers’ Compensation defines that, and are being paid, you MUST look for work within your limitations. The Workers’ compensation Board and the judge(s) are very strict about this. They do not care if no one is going to hire you or that the job market is difficult. If you fail to look for work, the judge(s) will stop your benefits.

Meeting this expectation can be difficult and insurance companies and employers are very aggressive about this. We can advise you about what you need to do to meet this requirement. Our team has a lot of experience and success dealing with this issue.

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What medical benefits can I get?

Medical benefits are probably the best benefits provided under the Workers’ Compensation Law. Injured workers are entitled to cost-free medical treatment for life as long as the treatment is related to the work injury. However, not everything is covered and some treatment may only get paid if it is done by certain types of professionals. Also, any treatment that costs more than $1000 requires authorization from the insurance company or employer. We find that there are frequently problems with getting medical treatment paid, especially prescriptions, and often there are questions about whether treatment is related to the injury. Our team at Montemaggi Law can help you resolve these problems.

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What happens if I go back to work, but make less money?

If you are able to work (either at the place where you were hurt or somewhere else) but do not make as much money because you are still disabled from your work injury, you can still receive money payments. Sometimes, your doctor may limit your ability to work by limiting the number of hours you can work, the physical things you can do or both. When you go back to work and make less money because of your injury, this is called reduced earnings. Our team can help you.

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What if I have permanent problems?

This can be a complicated question. If you have a permanent disability, the benefits you may get depend on a lot of issues. First, the permanent disability benefits are different depending on what part of the body was hurt, how badly it was hurt, the date you were hurt and even the types of treatment you received. There are different waiting periods before a permanent disability award will be made depending on those things.

You could have a “schedule loss of use” which results in a lump payment based on a percentage of disability in the body part you hurt.

You could have a “permanent partial disability” which would result in ongoing payments, which could be for a limited time or potentially lifetime depending on when you were injured. In fact, in the last few years big changes were made to how long you can get Workers’ Compensation benefits if you were injured after 3/13/2007. The law now how has an extremely complicated system of caps on benefits that depend upon your level of disability and other things with many unanswered questions. Montemaggi Law can guide you through this complex maze.

Or you could have a “permanent total disability” which would give you ongoing payments for your lifetime. Figuring which options could apply to you and be the best for you is very complicated and can involve difficult legal issues. And all of this depends upon a good report from your doctor that uses the right words. The insurance company or employer will often get a report from their doctor which does not benefit you. Our team at Montemaggi Law will help you get the right opinion from your doctor, tell you how to deal with the opinion from their doctor and help you understand the type of permanent disability you have.

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What happens at hearings and will there always be a hearing?

In most cases, there will be a hearing before a Workers' Compensation Law Judge. These hearings are not as formal as regular court hearings. However, the Workers' Compensation Board has a language all its own. It is difficult to understand what goes on at a hearing if you do not understand the abbreviations and terms used. When you go to a hearing, there is usually an attorney or other representative from the insurance company or your employer, the judge and a court reporter. They all understand the language used. Often the judges will try to explain to a claimant who does not have an attorney what is going on, but it is still very difficult if you are not familiar with the law and the language used in hearings. Although the people involved are usually very polite, they do not represent your interests. Therefore, usually only a limited explanation of what goes on is provided. At these hearings, the judges often make important decisions regarding your benefits and you need to be sure you understand what is happening. The attorney assigned to your case and our team at Montemaggi Law will explain everything that happens and make sure you are protected if we represent you.

Increasingly, the Workers' Compensation Board is trying to make decisions without having hearings. This means that someone at the Workers' Compensation Board will make decisions about your case without speaking to you, the insurance company or employer, or any lawyer including a judge. Understanding these decisions and figuring out whether they are correct is a complicated task. Unless you are familiar with the law and the various possibilities available in your case, you may not know whether this decision is correct. Our team at Montemaggi Law will make sure that these decisions are correct and, if they are not, take action on your behalf if we represent you.

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What are all the papers and forms I get?

Like with any other legal case, you are going to receive a lot of confusing paperwork from both the Workers' Compensation Board and the insurance company or employer on your case. Some of these papers are routine and don't require any action, some require you to take action quickly and others contain important information about your case that you need to understand. Our team at Montemaggi Law will make sure that whatever action is necessary based on this paperwork is taken and explain anything you need to understand.

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Do I have to go to the insurance company’s doctor?

The short answer to this question is yes. The insurance company or your employer has a right to have you examined by their doctor on the issues in your case. That doctor's opinion can have a very big effect on your benefits. Unless you have seen the doctor they want to send you to for treatment, there is nothing you can do about their choice of doctors. Some of these doctors are very good and honest and some are not. None of them are on your side. They are hired by the insurance company to give an opinion about your disability or other issues in your case. The insurance company or employer would prefer to pay you less money, rather than more. The doctors the insurance companies and employers use for these exams know this and it can affect some of their opinions. Our team at Montemaggi Law knows how to deal with these opinions when they are not in your favor. We can explain to you the possible results and help you choose the best one for your case.

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What is considered fraud and could I be accused of fraud?

This is a difficult question and another area where the Workers' Compensation Board and insurance companies and employers have become quite aggressive. Obviously, being dishonest in any way with the Workers' Compensation Board, the insurance company or your employer could result in being accused of fraud and possibly fraud being found. However, it is also possible for someone to be accused of fraud and for a Judge to find fraud when something looks like fraud. Therefore, it is important to be very careful that you understand the limitations your doctor is giving you and that you not do anything that appears inconsistent with those limitations. Also, people run into trouble when they are helping friends or family members by doing things for which someone would ordinarily be paid. If it looks like a duck, walks like a duck and quacks like a duck, the Judge is going to think it's a duck. In other words if it looks like fraud, the Judge will likely find that it is fraud. Our team at Montemaggi Law can advise you about how to avoid a false accusation of fraud if we represent you. However, you have an absolute obligation to be 100% honest with the attorneys that represent you. Therefore, do not be dishonest with our office or any attorney that represents you.

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What if the insurance company or my employer is fighting my case?

If the insurance company is fighting your case, there will likely be a trial where you and possibly other witnesses will testify. It is also possible that testimony will be necessary from the doctors involved in your case. There are very strict rules about what the insurance company or employer need to do and time periods within which they need to do them. All of this is difficult to handle unless you are familiar with the law and its requirements. At Montemaggi Law we know the rules and will fight to get your case established if we represent you.

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Can I still get benefits on my old case?

The answer to this question depends on the age of your case and the type of benefits, but it is definitely possible to reopen an old case. As stated before, medical benefits are lifetime. The insurance company or employer may raise issues about whether treatment is related on an older case, especially if it has been a long time since the last treatment. However if the treatment can be proven to be related to the original work injury, it should be covered. Our team at Montemaggi Law can help make sure you get these benefits.

Whether you can get more money is a more difficult question. If the case is old enough (more than eighteen years), it may not be possible to get more money benefits. Also, it may depend on what benefits you got before. Montemaggi Law can help figure out whether you can get more money and to maximize those benefits.

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What if I have more than one injury to the same body part?

It is possible to have more than one Workers’ Compensation injury to the same part of your body. These cases can involve complicated questions about whether you have truly had a new injury and whether your problems are related to more than one case. Sometimes people have a number of different cases. It may or may not be better to have a new injury found by the Judge and it may or may not be possible to stop a new case from being established. Our team at Montemaggi Law can help you to understand the complex issues in these cases and help make sure you get the best result.

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Will I get a settlement?

There is no automatic settlement of a Workers’ Compensation claim. It is not like being in a car accident or other personal injury type of case. The payments are made as required by the Law. It is possible to do a complete settlement of your case for a lump sum, called a “Section 32 agreement”. However, the insurance company is not required to settle a case and it is often not in your interests to do this kind of agreement. Often, the insurance company is not willing to pay you what your case is really worth and sometimes people foolishly jump at what seems like a lot of money that really isn’t in the long run. At Montemaggi Law we can help you to understand whether this kind of agreement is possible or a good idea in your case. We will not sell your case short, even though it may mean that we lose a fee. At Montemaggi Law we would rather get a result that is the best one for you. Be very careful before doing this type of agreement and make sure your don’t give up your benefits for too little money or if it is just a bad idea.

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Can I sue anyone?

Usually, you cannot sue anyone for a Workers’ Compensation injury and you will be limited to the benefits provided by Workers’ Compensation. You cannot sue your employer even if your injury is their fault, except if they intentionally injure you. However, there are some exceptions to this where someone other than your employer causes, contributes or is somehow responsible for your injury. At Montemaggi Law we can figure out if you can sue anyone and find a lawyer to help you with that case.

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How do attorney fees work?

Attorney's fees for Workers' Compensation claims are subject to approval by the Workers' Compensation Board, usually in the person of a Judge. Attorneys are not permitted to charge you upfront for representing you in Workers' Compensation claim. Any fees are deducted from your money benefits. If there is no money being paid to you at the time of a hearing, your attorney does not get paid at that time.

There are generally three kinds of fees that we charge. At a routine hearing where no major changes occur, we will generally ask for an “appearance fee” which is a relatively small fee ranging up to a few hundred dollars that would be deducted from your ongoing payments at a certain amount per week. The other type of fee occurs whenever there is a lump sum or block of money that is paid on your case. This can occur either at the time of a permanent injury award or when there is some change in your past awards that generates an increase in benefits or an award of benefits retroactively. These are larger fees and we can explain exactly how we calculate those if we represent you. Lastly, if you are classified with a permanent partial or permanent total disability there is a larger fee at that time that will come out of your benefits on a weekly basis into the future when there is no back award from which the fee could be paid. Again, we can explain exactly how this fee will be calculated if we represent you. Always bear in mind that any fee that a workers’ compensation attorney charges must be approved by the judge. At Montemaggi Law, we will always limit our fees to a fair and reasonable amount taking into consideration the amount of money you are receiving as well as the benefit we have added to your case and the amount typically charged by other attorneys.

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