Many states are changing their workers comp laws. Injured workers need to keep up with those changes to protect their rights and secure benefits

Palm Harbor, Fla. — Even though a number of states are considering revisions to their workers compensation laws, people who are injured on the job may still qualify for a number of workers’ compensation disability benefits, Attorney Jeffrey Hensley said today.

A number of states, such as South Carolina, Tennessee, Arizona, New York, Delaware and others, are looking at changes to their workers compensation laws. Others, such as California and Florida, have made changes to their laws in the last two or three years, Hensley said. That means that injured workers need to look more carefully than ever at the workers compensation laws in their home states to see how the laws’ benefits apply to them.

“Those benefits may depend on a number of factors, but injured workers may qualify for temporary or permanent disability payments covering partial or even total disability, even though the laws may have changed,” Hensley said. “An attorney trained in the latest workers comp issues can be useful in sorting out appropriate benefits and strategies.”

A person who cannot work while receiving medical treatment for a work-related injury, and who has not reached “maximum medical improvement,” may qualify for temporary total disability. Just exactly what “temporary total disability” means can vary from state to state, but many states fix that amount at two-thirds of a worker’s average weekly wage, with some sort of cap on total benefits paid out.

Here are some other common workers’ comp benefits:

- Temporary Partial Disability - This benefit is usually paid out to injured workers as they perform limited work while recovering.
- Permanent Partial Disability/Impairment Benefits - This benefit is usually paid to workers who suffer permanent injuries of a type that do not result in total disability.
- Permanent Total Disability - Paid to workers who demonstrate permanent injuries or conditions that prevent them from returning to work.
- Disfigurement/Mutilation — Workers who suffer disfigurement or scarring may qualify for compensation even in the absence of work-capability impairment.

Since workers compensation benefits are provided via state statutes, workers comp benefits and program details can vary from state to state. Because of that, it is critical that workers understand the programs that exist in the states in which they work. They also must have a clear picture of what responsibilities are required by those state programs.

Workers comp programs generally cover all employees, whether or not they are minors, non-citizens or part-timers. Occasionally, the type of occupation, the size of the employer’s business, or the length of the employment will influence or impact entitlement to workers’ comp benefits.

Generally speaking, workers comp is considered to be a no-fault system of insurance. It is designed to provide medical care and pay benefits to injured workers even if they are at fault for their injuries.

The goal of most workers comp programs is to restore the injured worker to health and to get him or her back to work. If that is not possible, then the program’s aim is to provide replacement for the wages that would have been earned if the injured person had not been injured and was able to work.

Workers comp programs are designed to provide benefits to the injured worker in exchange for prohibiting the injured worker from suing his or her employer for negligence. There are, however, a few exceptions to the rule. For one, workers may be able to sue their employer if they can prove their employer engaged in conduct that was intended to cause them harm, or if they can show that the conduct of the employer was so negligent that their conduct was substantially certain to result in harm to the employee. Finally, the injured worker can sue for his or her injuries when there is some third party, or a product that was responsible for the injury.

Here is what injured employers need to do:

- Report the injury to the employer. Employers must be able to provide medical treatment and must file certain reports and other paperwork.
- Obtain medical attention promptly. Employers should immediately direct injured workers to the company medical facility, walk-in clinic, a physician, or hospital. The injured worker should initially accept such employer-offered treatment.
- File a written notice of claim. This makes a permanent record of the claim.
- Contact the employer’s workers’ comp insurance carrier if, within two weeks of becoming disabled, a disability benefit check has not been received.

If a claim is disputed by the employer, the injured worker will need to prove that the claim is valid, perhaps at a hearing. An attorney versed in workers comp law can help present the case.

Information about the workers compensation laws in any state may be obtained by searching the Internet. Entering “workers compensation and (the state’s name)” in Google or some other search engine should lead to the appropriate Web site.

Attorney Jeffrey Hensley says the health courts, supported by the AMA, “are like having the fox guard the henhouse.”

Palm Harbor, Fla. — So-called “health courts,” which would replace juries with health care professionals in medical malpractice cases, would leave malpractice victims dangerously unprotected, accotrding to Attorney Jeffrey Hensley.

The American Medical Association (AMA) adopted principles in July that favor the health courts, which would do away with peer-based juries and replace them with judges trained in medical standards.

Hensley said the notion of health courts dangerously tips the standard of justice in malpractice cases against victims who may be entitled to sizeable judgments when they are seriously harmed by poor medical care.

“There is a fox-guarding-the-henhouse quality to this idea of having medical people passing judgment in medical malpractice cases,” Hensley said. “People who have suffered very serious injuries or damages as a result of medical malpractice should have little confidence in courts which are run by the very same profession that caused their injuries.”

Instead, Hensley said, medical malpractice victims should have full access to a court system in which their peers consider evidence from both sides, and then determine possible damages that are based fairly on the extent of their injuries or damages.

“This is not simply a step away from reasonable medical malpractice law,” Hensley said. “This is a step away from the very foundations of American justice.”

So-called health courts were conceived during Brookings Institute conferences in 2002 and 2003. Besides the move to health courts, the principles adopted by the AMA urge quick resolution of claims, special training for judges, and reliance on qualified experts. The AMA also has stated its support for limits, or caps, on medical malpractice judgments.

A better way to limit malpractice judgments, Hensley said, would be to limit substandard medical treatment that results in injury or even death.

“If the AMA wants to limit the claims that get awarded in medical malpractice suits, a good place to start would be in its own backyard,” Hensley said. “People have a right to expect good, professional health care and, when they don’t receive it, they should have a right to reasonable financial claims.”

Hensley said it is important to remember that the duty of a medical professional is not to cure, or even to guarantee a good outcome from treatment. Rather, the duty is to provide good medical care according to accepted standards in the community, or, in the case of a specialist, accepted standards in that medical specialty.

“Medicine is not an exact science, and doctors are not required to be right every time they make a diagnosis,” Hensley said. “A misdiagnosis becomes malpractice, however, if the doctor fails to get a medical history, order the appropriate tests, or recognize observable symptoms of the illness.”

There’s a number of important steps to winning a disability claim. I posted the first step previously. Here’s the second step:

Secret #2: Give the insurance company notice of claim as early as possible. Late notice could result in a substantial loss of monthly benefits.

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