10 Mistakes Injured Workers Must Avoid

Learn about the 10 mistakes injured workers must avoid to obtain full compensation after a serious work injury in Alabama.

1. Using private health insurance coverage to avoid filing a work comp claim

10 Mistakes Injured Workers Must AvoidOver the years we have had lots of folks come to us with a work-related injury or illness and we soon discover that they did not file a work comp claim but instead used their private health insurance to see a doctor. This might seem like a good way to avoid rocking the boat at work, but it is not. It will only make life harder for you in the long run. Avoiding work comp can create both a notice issue (the law requires you to provide your employer with timely notice of your accident) as well as a problem with getting work comp to cover your claim after you’ve obtained medical care through your private health insurance coverage.

Another big problem with trying to avoid a work comp claim by using your private health insurance is that your private health insurance contract (which no sane person would ever want to sit down and read) is virtually certain to contain a provision that excludes the payment of medical bills arising from work-related injuries and illnesses. You might wonder: how does my health insurer ever find out that my injury/illness is work related? Keep in mind that these are multibillion-dollar companies. They have teams of trained professionals as well as sophisticated software to review medical records for “diagnostic codes” or other information that reveals the relationship between the work accident/illness and your medical treatment.

The event that typically brings the client to our office is the receipt of a letter with a questionnaire from the health insurer asking for details about the accident. Before long, the client has received a notice of “subrogation” or “reimbursement” asking for the charges paid by health insurance to be paid back. The figures can be staggeringly high given the current cost of medical services. This creates panic (as it should) and the client walks into my office desperate for help. If you have made this mistake the time to address and fix it might be limited. Fortunately, we can usually help with this situation. It can be a complex issue to sort out and the sooner you contact us, the more likely it is that we will be able to help.

 2. Failing to exercise the right to choose a new treating physician:

Many of our clients are surprised to discover that they do not have any choice in their initial treating physician when injured on the job. The work comp laws in Alabama are, in theory at least, a trade-off: the employee receives lifetime medical care and some, limited, compensation benefits for an on-the-job injury/illness (without regard for who is at fault) and the employer receives immunity from other legal claims and damages (i.e. pain and suffering damages for claims arising from employer negligence or recklessness). Along with that limited liability, the employer enjoys significant control over the medical professionals providing care for injured workers. The employer and/or their insurance carrier is allowed to designate the initial treating physician, and subsequent providers involved in an injured worker’s case must be authorized by the employer or their work comp insurance carrier.

This work comp system has evolved essentially into a network of medical providers who seek business from work comp insurers. Most of the time, we find that our clients receive good care from the providers participating in this network. However, there are times when we are contacted by clients who are dissatisfied with the care they are receiving. Oftentimes their complaints are well founded as the medical industry catering to work comp insurers can do a poor job meeting the treatment needs of the injured worker.

Thankfully, injured employees in Alabama do have some limited control over their treating physicians. They can replace their authorized physician by requesting a “panel of four.” In addition, if the current treating physician is recommending surgery, an injured worker can exercise his/her right to a surgical panel of four and select a different doctor to perform the surgery. The physician chosen from that panel then becomes the authorized treating physician for the duration of the claim, unless there is a referral by that provider to some other provider. To obtain the panel, the employer and/or work comp insurer must be put on notice of the injured worker’s dissatisfaction with the current provider and a demand made for a list of four providers qualified to assess and treat the work-related injury/illness.

This is a one-time option for the injured worker. The decision to exercise the right to a panel must be made very carefully and at the right time. Given that the panel-selected physician usually becomes the authorized physician for the life of the claim, the injured worker must carefully research and weigh his/her options. We have lots of experience with the doctors in Alabama who handle work comp claims and can be an asset to our clients in providing information about prior experiences with those physicians as well as other valuable insights.

If you feel like you have met a dead end with your medical care, or if you are uncomfortable or unsatisfied with your initial treating physician, give us a call.

3. Trusting the work comp adjuster:

Workers’ compensation insurance adjusters handling claims in Alabama typically have considerable experience with the workers’ compensation system. They carry large caseloads of hundreds of claims and many of them have been handling claims here for many years. Conversely, the injured worker likely has very little experience with the workers’ compensation system. This David versus Goliath matchup can, understandably, leave the injured worker feeling outmatched and overwhelmed.

Beware that the insurance adjuster is not going to impart any wisdom about workers’ compensation laws to the injured worker. They are not employed to assist the injured worker with his or her claim. Instead, they are employed to handle the claim on behalf of the employer/insurer and to serve their interests, not yours. It is very much an adversarial system. For many claims adjusters, they imagine themselves as a modern-day Sherlock Holmes… When they are assigned the claim, the game of trying to avoid paying benefits is, indeed, afoot…

An important task for the claims adjuster is limiting the exposure of the employer/insurer (helping them pay less $$) and their duties in that assignment often run counter to the exercise of the injured worker’s rights under the work comp laws. What does this mean? The adjuster you are speaking with (if you have not hired an attorney to speak for you) might seem like a very nice person, but he or she is not your friend. They have opened a file on you and your claim and step one in the process is to investigate to determine whether you should receive any benefits at all. The adjuster would love to develop a reason to deny your claim outright and quickly close their file. If they accept your claim, their assignment involves making sure that your employer and their insurer spend as little money as possible. They aim to achieve this result while staying, loosely, within the bounds of the Alabama Workers’ Compensation Act.

You should always be on guard when speaking with the adjuster handling your file. They might be a wonderful person outside of work, but I can guarantee you that at some point in the life of your claim, your interests and the interests they represent will be at odds. And “loose lips sink ships” is an apt warning in the world of insurance claims. What you say can and will be used against you, and they will not read you any warnings beforehand.

4. Trusting the work comp “nurse case manager.”

It comes as a total shock to most injured workers when they show up to see their treating physician and find a “nurse” from the workers’ comp insurance company there to tag along. These nurse case managers are the eyes and ears of the insurance company. In theory, they are there to assist in facilitating your care (i.e. scheduling appointments, helping to arrange transportation for those too seriously injured to drive, helping obtain prescriptions, etc.), but the truth is they are there mainly to ingratiate themselves with your medical providers to steer your medical care in a direction that reduces the insurer’s cost.

We have heard from hundreds of clients who are appalled when a so-called “nurse” insists on coming into the exam room to observe, take notes, or worse yet, to butt into the private conversations between doctor and patient. Often our clients report seeing the nurse case manager lingering after the appointment to have a conversation in hushed tones with the doctor or his staff. And we can guarantee if the nurse thinks she has any dirt on you, she will be in the ear of the doctor trying to poison your reputation.

So what can you do??…tell them very clearly up front NOT to enter the exam room with you and your treating physician. If you hire us, there are several other directives we give work comp nurses. You do not have to allow anyone from the work comp carrier to interfere with your expectation of privacy with your medical providers.

If you are dealing with an aggressive nurse case manager or have been made to feel uncomfortable by his/her relationship with your treating physician, it is beyond time for you to have an attorney on your side.

5. Being forced to return to work too soon after the accident.

Workers’ compensation insurance costs a lot of money. Among the key factors used by insurers to calculate an employer’s insurance premiums are 1. the employer’s history of prior work comp claims and 2. the amount of money paid out on those claims. There is a financial incentive for your employer to avoid “lost time claims” which are claims where an employee is taken out of work by the authorized physician and is owed temporary total disability (“TTD”) at 2/3 his/her pre-injury average weekly wage.

This financial incentive to avoid a lost time claim often leads to a conflict between the employer and employee. The employer has an incentive to accommodate any work restrictions assigned to the employee by offering an alternative work assignment that fits within those restrictions. The push to return an injured worker to some temporary assignment often results in the worker being forced to come back too quickly or in a job with physical demands the worker is unable to safely perform.

For example, the treating physician recommends no lifting at all, or no lifting with an affected extremity, and the employee returns to work only to find they are assigned janitorial duties that require lifting. The work assignment violates the directives of the treating physician. An injured worker has no obligation to perform work outside of their physician-assigned restrictions.

If the employer penalizes the injured worker for refusing such assignment, they could be held liable for retaliatory discharge – a separate cause of action recognized in Alabama where an employer is found to have terminated an employee or forced them to quit solely based on their having filed a workers’ compensation claim. This retaliatory discharge cause of action can subject the employer to traditional tort damages, including punitive damages designed to punish and deter similar conduct in the future.

We often hear from clients who feel like they have no choice and must return to work, even if the work violates the treating physician’s recommendations. Please know that if you are injured seriously enough to be placed on restrictions, you have a right to be protected from an employer forcing you to return to work in a position that puts you at risk of further injury. Rest assured, if your employer chooses not to comply with the authorized provider’s restrictions, a trial court will not take such conduct lightly. A workers’ compensation lawsuit might be required to remedy this wrongful conduct. And your physician should certainly be made aware of your employer’s decision to violate medical directives.

6. Failing to turn in mileage reimbursements.

Alabama’s workers’ compensation laws are very much pro-employer/insurance companies. Our clients are shocked when we tell them, for example, that the compensation cap for the most serious and significantly disabling injuries is $220 per week. This cap was set by the Alabama Legislature in 1987 and has never been adjusted. In 1987, $220 was 69% of the state’s then average weekly wage. Today it represents only 22% of the state average weekly wage.

Because of other highly pro-employer/insurer aspects of Alabama’s workers’ compensation laws, this $220 cap means that a person who has an injury limited to a “scheduled member” (i.e. an injury involving only the hand, foot, arm, or leg) who is disabled, will only receive $220 per week for around 200 weeks. This is shameful. These workers would have at least been able to make ends meet for a few years back in 1987 but today they probably cannot buy a week’s worth of groceries. There have been several attempts to amend our workers’ compensation laws over the years, but our state legislators have failed to remedy this injustice which falls on the most vulnerable among us: our injured workers and their families.

Sadly, considering the already limited compensation available, injured workers often make the mistake of failing to turn in their mileage for reimbursement. With a serious injury necessitating months of physical therapy or other specialized treatment, mileage can add up. Live in a rural area and must travel to medical providers in a larger city. You might eventually have hundreds or even thousands of roundtrip miles eligible for mileage reimbursement.

As of 2021, the roundtrip reimbursement rate is 56 cents per mile. Trips to treating physicians, physical therapy, imaging centers, and pharmacies are reimbursable! Employees have ONE YEAR to claim reimbursement, after which time they are forever barred from claiming reimbursement. Also, employers are required to notify injured workers in writing that they are entitled to reimbursement for mileage within two weeks of acceptance of the claim, otherwise, they might waive their right to challenge the mileage expense claim. Even if your employer fails to provide this written notice, you should submit the mileage reimbursement showing the date, location of the provider/pharmacy, and the total roundtrip mileage to both your employer and the insurance carrier as soon as possible after your appointments. Call us today and we will help you compile and submit your mileage!

7. Not knowing how FMLA leave works.

It is a challenge for many injured workers to understand the complex interaction between workers’ compensation laws and other medical or disability leave-related laws or employer policies. One big potential pitfall lies in the interaction between workers’ compensation laws and the Family Medical Leave Act (“FMLA”).

The FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. Eligible employees may take up to 12 work weeks of leave in 12 months for qualifying events, which include a serious health condition that makes the employee unable to perform the essential functions of his or her job. An employee of a covered employer is eligible for FMLA if he/she has worked for the employer for the last 12 months, has at least 1,250 hours of service for the employer during the 12 months immediately preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles.

While the leave granted by the FMLA is not paid, it does entitle the employee to return to work following the expiration of leave and makes it unlawful for the employer to interfere with, restrain, or deny the exercise or the attempt to exercise any right provided by the FMLA. There are more complex parts, but this is a “nuts and bolts” look at basic aspects of the FMLA.

In terms of FMLA in the context of work comp disability, most employers have policies that allow them to let your FMLA leave run concurrently (along with) your work comp covered leave (temporary total disability). This means that if you are out of work due to an injury or illness covered under work comp, and you are also eligible for FMLA, your employer will not tack the 12 weeks of FMLA leave onto your leave covered through workers’ compensation. The result is unfair. Your employer is allowed to keep you from enjoying the job protections afforded by FMLA beyond the time you are held out of work by the work comp treating physician.

When this happens to our clients, we make certain the employer knows that any effort to terminate our client while he/she is still out on work comp leave will be met with a retaliatory discharge lawsuit. For those clients too injured to return to work, the termination of the employee while still drawing workers’ compensation temporary total disability is likely to be seen by the Court as an acknowledgment that the work injury or illness is a permanently disabling condition entitling the worker to lifetime lost wage benefits. If you are confused by FMLA or other disability policies, call us for guidance and answers.

8. Not knowing how short-term disability works.

Many of our clients work for employers who have group short-term disability insurance for their employees. Some have long-term disability insurance as well. Short-term disability, in theory, works a lot like workers’ compensation coverage: it provides wage replacement income (usually at around 60% of your pre-disability income) for some certain period should you be unable to work due to a qualifying injury or illness. Proof of inability to work is required in the form of a certification from a medical provider. The duration of benefits is typically limited to a certain number of weeks as spelled out in the insurance contract.

Clients sometimes contact us confused as to why they are being told they do not have a qualifying disability after being seriously injured on the job. Most of the time, a short-term disability insurance policy excludes coverage for an injury or illness that is covered under workers’ compensation. For example, if you were to suffer a serious back injury on the job and receive work comp medical and lost wage benefits after recovering from back surgery, you would NOT be able to also claim for that same condition under your employer-provided short-term disability policy. It is possible if you carry a short-term disability policy not provided by your employer, that you could make a claim and recover for an injury/illness also covered by work comp. We rarely encounter that scenario, but it does happen.

Beware that if you decide to forgo a work comp claim to instead seek short-term disability benefits, your representation in the application that your injury/illness is not work-related will likely create a very good defense for your employer if you try and change course in the future and seek workers’ comp benefits for the same injury/illness. We have successfully represented individuals who were forced by their employer initially to seek short-term disability instead of work comp, but those cases were hotly contested and difficult, taking years to be resolved through litigation.

If you are injured on the job, understand that your remedy is likely limited to work comp and if you opt to pursue short-term disability instead, you are likely ending any future claim that the injury/illness should be covered under work comp.

9. Settling a claim through a “Benefit Review Conference” with an Ombudsman.

Thousands of workers’ compensation claims in Alabama are settled every year without the injured worker being represented by an attorney or even having the settlement terms explained by the employer or their insurance carrier. These settlements are called Benefit Review Conferences (“BRCs”) and once approved by an Alabama Department of Labor Ombudsman they are generally final and end your claim. If you are reading this because you’ve been offered a settlement to be handled/approved through a BRC….BE VERY VERY CAREFUL BEFORE YOU PROCEED WITH THAT PROCESS!

Here’s the typical scenario: You sustain an on-the-job injury which is accepted as compensable by your employer. Let’s use a torn rotator cuff as an example. You go to the employer/insurer-authorized surgeon, get an MRI that confirms the diagnosis, and undergo an arthroscopic repair. After weeks of physical therapy, your surgeon will inform you or the employer/insurer that you have reached maximum medical improvement (“MMI”) which means you are recovered as fully as you can be expected to recover. Most of the time, the surgeon will also sign a permanent physical impairment rating using something called the American Medical Association Guides to the Evaluation of Permanent Impairment. For our hypothetical shoulder injury, let’s say the surgeon assigns a permanent impairment rating of 10% to the whole person.

At the time the surgeon declares that you have reached MMI and assigns a permanent impairment rating, your entitlement to temporary total disability benefits ceases and the question of whether you are entitled to any permanent disability benefits is ready to be addressed. Regardless of whether you can return to work with whatever permanent restrictions you might have been assigned, you are probably going to get a letter offering you “the present value of your permanent impairment rating” – in our example 10%. The math on that gets complex, but you are going to be offered 10% of 2/3 of your pre-injury average weekly wage, paid out of the 300 weeks allowed for partial disability, with those weeks reduced to present value and your employer getting credit for the weeks of TTD already paid. If you made 700 dollars on average before your injury, your work comp rate would be around $466, and that 10% disability would equate to a lump sum offer of around $10,000-$11,000 (depending on how many weeks of TTD you received.)

Confused yet? You’ll get no guidance as to whether this is fair. Some paperwork will be shoved in front of you and an Ombudsman will talk for a few minutes about stuff you’ve never heard of and then ask if you want the settlement approved. The problem with accepting the offer and settling your claim that you are likely going to be required to give up not just the right to receive money for your permanent disability, but also the right to re-open your claim if your injury gets worse, and likely also your entitlement to future medical treatment. Many times, you might also be required to resign your employment to get the settlement money. Further, the value of your claim is likely much higher than the assigned medical impairment rating, especially if your injury prevents you from returning to work at the same or greater wages.

It is almost always a big mistake to settle your workers’ compensation claim through a BRC without a lawyer representing you. A knowledgeable attorney specializing in work injuries will likely add significant value to your case, even if you are back working at the same job and the same wages. The cost for that legal representation is cheap: the law limits the attorney’s fee to 15% of the settlement amount obtained through the attorney’s services. Don’t go it alone if you do not understand what you are agreeing to settle. It could result in a mistake costing you tens of thousands of dollars and perhaps even medical coverage for your work injury.

10. Not Having A Competent And Experienced Work Injury Attorney On Their Side!

I’ve been doing this for over 17 years with several years at the beginning of my legal career on the insurance defense side. I represented work comp carriers and feel terrible now about handling hundreds of claims for them where I showed up to a court hearing or BRC to give a check to someone so desperate to put a work comp claim behind them or to try and catch up financially from the strain caused by their injury, that they choose not to have a worker’s compensation attorney on their side. In the multi-billion dollar world of work comp insurance, they were sitting ducks.

You MUST have an attorney if you have been injured on the job, particularly if you have suffered a serious injury that threatens your ability to make a living. The goal of the employer and their work comp carrier is to eliminate the financial risk your claim poses for as little money as they possibly can. If you do not have an attorney, they accomplish that goal 100% of the time. Your entire life is reduced to a claim file and there’s no humanity involved in their mission to close that file as quickly and for as little money as they can.

These laws are complex, and a system originally designed to ensure that injured workers were protected with wage replacement and medical benefits has evolved into a system that often sees injured workers’ rights relegated in favor of big business and insurance interests. Don’t be one of the suckers that helps drive the profits of the insurance carrier. Hire a work comp lawyer who focuses his/her practice on defending the rights of injured workers…someone passionate about the mission of standing up for the rights of injured workers and eliminating the injustice in the system. The law sets the fee at 15% with no fee unless your attorney is successful in recovering money. We would be honored to discuss your claim with you today