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WORKERS’ COMPENSATION
Introduction Most people in Kentucky are familiar with the automobile "no fault" law. However, most people don’t realize that our Workers’ Compensation law was really the first "no fault" law that was enacted in the beginning of the 20th century. "No fault" means that irregardless of who’s at fault; whether the injured worker, a co-worker, or the employer, if a person is injured at work, they are covered under the Kentucky Workers’ Compensation act. The law was designed to provide immediate payment for medical care and income replacement for an injured person. Prior to the enactment of the Workers’ Compensation Law, one would have to file a lawsuit against their employer if they were injured and prove that the employer was negligent. In most cases, the employee lost and received no compensation. Social policies were enacted to help these many injured workers. However, there is a trade off. The injured worker waives his or her right to sue the employer in return for this "no fault" system of recovery. Although the law was initially designed to help injured workers, it has now evolved into a system that protects employers from civil law suits. QUESTIONS AND ANSWERS
In Kentucky, any employer, other than one engaged solely in agriculture, who has in this state one or more employees is subject to this law. Every person, including a minor, in the service of an employer under any contract of hire or apprenticeship is considered an employee under the Workers’ Compensation act and is covered. There are eight exceptions to this rule. This often can be a complex issue and it is recommended that you contact an experienced attorney to explain whether or not you qualify as an employee at the time of your injury.
Kentucky Workers’ Compensation Law defines "injury" as any work related traumatic event or series of traumatic events including cumulative trauma, arising out of and in the course of employment producing a harmful change in the human organism evidenced by objective medical findings. "Injury" does not include the affects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment. Injuries do not include a psychological, psychiatric, or stress related condition, unless it is a direct result of a physical injury. "Injury" also includes an occupational disease which arises out of and in the course of employment. The most common occupational disease is called black lung. As a summary, a " work injury" means any traumatic event, or one who develops a medical condition as the result of repetitive work activity, or one who is exposed to a hazardous substance at work and develops medical problems as a result of that exposure. The Workers’ Compensation law also provides compensation for surviving spouses and dependents of workers who die as a result of a work related injury or occupational disease. These benefits generally extend to wage replacement compensation and burial expenses. Also, spouses and dependents of a worker who die during the period of benefits may also be entitled to receive part of the workers’ benefits. This often can be a very complex issue and it is recommended that you contact an experienced attorney to explain whether or not you have a work injury.
For an injury to be "work related" it must arise out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. In order for an injury to arise out of employment, there must be some relationship between the employment and the injury. This often can be a very complex issue and it is recommended that you contact an experienced attorney to explain whether or not your injury is considered work related.
The most important thing an injured worker must do after an injury is to give his employer "due and timely notice" of the injury. Failure to give proper notice of the injury will mean that you will lose your case, as a matter of law, even if your injury is work related. Generally, if you are working on the premise of the employer and there are bosses readily available, this means you must give notice immediately after the accident. You should give notice of every injury, no matter how minor the injury may be at the time of the incident. Many injuries appear to be minor at first but after a few days they can develop into a very serious problem. If you wait two or three days after the accident to report it, you may very well lose your claim. This is a very complex issue and it is recommended that you consult an experienced attorney about proper notice of a work injury.
ABSOLUTELY NOT! The injured worker is entitled to select his or her own physician. After an injury, the employer is required to provide the worker with a "form 113" allowing them to designate their own physician. This selection is very important because that doctor becomes the "gate keeper" of your treatment. Any treatment outside of that physician’s treatment plan will not be paid. Some employers have "managed care" which means that they provide a network of physicians. Only from that network can you select a physician and designate them as your "gatekeeper". The employer is required to provide you with the complete lists of physicians in their network. Unfortunately, many employers tell employees that they have to go to the company doctor which they select. If an employer tells you that, immediately contact an experienced attorney so the attorney can advise you of your rights. An employer or their insurance carrier can send an injured worker to see a physician of their choice for the purpose of an evaluation but not for treatment. If you do not make yourself available for such a medical evaluation your benefits can be prematurely terminated. This can be a very complex issue and it is recommended that you contact an experienced attorney to explain your medical rights after an injury.
There are potentially two stages of benefits that an injured worker may receive after a work related injury. If you have a serious injury which results in your physician taking you off work for more than seven consecutive days, you will be entitled to a period of temporary total disability income benefits. This generally represents two-thirds of your gross wages. This should continue as long as you are considered totally disabled. Additionally, an injured worker is entitled to all reasonable and necessary medical care for the work related injury. An injured worker may be entitled to a second stage of benefits if they have a permanent impairment rating from the A.M.A. Guidelines as a result of their injury. The injured worker will be compensated based upon that medical impairment rating and the grid system that is provided under the Workers’ Compensation Law. The amount of weekly benefits and the duration of those benefits vary from case to case. The benefits are based upon weekly benefits and lump sums are not always paid. However, lump sums can be paid pursuant to a settlement between the parties. This can be very complex issue and it is recommended that you contact an experienced attorney to explain exactly what your benefits may be after an injury.
Most employers obtain workers’ compensation coverage through a private insurance company much like one buys private automobile insurance. However, an employer can become a self-insured entity or join a self-insured group. Whether privately insured or under a self-insured program, the claim is processed and paid by the private insurance company or an administrator who oversees the payment of the self-insured fund. In most cases, this means that the injured worker will be dealing with someone from their place of employment and also the private insurance company or the administrator of the self-insured fund. It is important that you keep both parties notified as to the development of your medical care and work status.
After the work injury is properly reported, the injured worker will be contacted either by the private workers’ compensation insurance carrier or the administrator of the self-insured fund by a person called an "adjustor". This person will make the initial decisions as to whether or not the claim will be paid. The adjustor may very well want to take a statement from you about the accident and also request that you provide to them a medical release to allow them to obtain the medical records. The injured worker should cooperate with the adjustor. However, the information you give to the adjustor may affect your claim. It is better to obtain advise from an experienced attorney before one gives a statement or signs any documents.
The injured worker should make sure that they provide their employer and the adjustor with the necessary disability statements setting forth the periods of time that the injured worker is off work. If the injured worker fails to provide that information on a timely basis it is likely that their temporary total disability income benefits and medical benefits will be prematurely terminated. The injured worker should provide to all of their medical providers the name of the insurance company, the name of the adjustor, the insurance companies address, the telephone number and the claim number. The medical provider must submit all medical bills directly to the insurance company within 45 days of service. It is the injured workers’ responsibility to make sure that this is done. Failure to have the bills submitted to the insurance company on a timely basis may result in them not being paid. The injured worker has the responsibility to follow all reasonable and necessary medical treatment that is recommended by their designated physician. Failure to comply with medical treatment will result in the premature termination of your benefits. This may also affect the permanent benefits.
The Workers’ Compensation Law is designed for an injured worker to process the claim themselves. For very minor injuries and, when the facts are not disputed, an injured worker may not need the services of an attorney. However, in cases where the injury is more serious or when the facts are disputed by the employer, one probably needs the services of an attorney. Remember, the insurance company has been in the business of workers compensation for a long time and they have their own legal staff advising them for each claim. Having an attorney helps level the playing field between the injured worker and the insurance company. An injured worker who proceeds with a disputed claim or with a serious injury is at a great disadvantage.
Under Kentucky Workers’ Compensation Law, the attorney fee is a percentage of the income benefits received by the injured worker. The expense of proving the case is the responsibility of the injured worker. The injured worker can receive a free initial consultation with the firm of Busald Funk Zevely, P.S.C. At Busald Funk Zevely, P.S.C. we do not receive a fee unless we are successful on your claim. We are available to meet with you at no cost to discuss your legal rights. THIS ARTICLE IS INTENDED TO DISCUSS GENERAL LEGAL PRINCIPLES. IT IS NOT INTENDED TO BE A SUBSTITUTE FOR SPECIFIC LEGAL ADVISE FROM AN EXPERIENCED ATTORNEY AS TO YOUR PARTICULAR SITUATION AND NEEDS.
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