Medical care issues
Return to work issues
A Tennessee employer is supposed to offer a panel of at least three doctors for treatment. If the injury is to the back, the panel is supposed to be expanded to four and must include a chiropractor. Georgia employers are supposed to have a panel of six doctors posted and one of them must be an orthopedic surgeon. You select a doctor and he or she becomes the authorized treating physician and provides treatment at the employer’s expense. If you see your own doctor, without authorization from the employer or their insurance carrier, they usually do not have to pay for the treatment. In an emergency situation prior authorization generally will not be required.
If I don’t like the doctor I’m seeing, can I get a second opinion?
In Tennessee, the employee is entitled to a second opinion on the issue of surgery, impairment or diagnosis. Insurance carriers should provide a second opinion, particularly upon referral by the treating physician. In Georgia, you have a right to an independent medical examination at their expense, one time, within 120 days of receiving any disability benefits. You may always seek a second opinion at your own expense, of course.
Why does it take so long to get procedures and appointments authorized? This is probably the most frustrating aspect of the workers’ compensation system for the doctors and for the injured employee. In Tennessee, the doctor has to get authorization from the insurance adjuster or nurse case manager before scheduling appointments, tests, therapy, surgery, etc. In Georgia, once an authorized treating physician is selected, the insurance company is supposed to pay for all reasonable treatment, but the doctors generally want to get authorization from the adjuster before scheduling appointments, tests, therapy, surgery, and so forth so they can be assured that they will be paid.
No, but they may tell you have to come to Chattanooga! If you have the money, you can always pay for a prescription yourself, provided it is written by the authorized treating physician, and then seek reimbursement from the insurance company. Of course, you may not be able to afford to pay for your prescription and then wait on reimbursement. Frequently, the adjuster will authorize a pharmacy to fill your prescriptions, but only if written by your authorized treating physician. And, insurance companies often contract with other vendors to review and monitor the prescriptions being filled. If a request for a new or different prescription is submitted, sometimes there is a delay while the medical records are obtained and the reason for prescribing the medicine is reviewed. All of this can cause delay.
What do I do if my employer won’t pay my medical bills that are incurred as a result of the on-the-job injury?
First, make sure that the bills have been properly submitted to the workers’ compensation insurance company. Insurance companies will not pay until they have documentation as to what the bill was for, that it was related to your work injury, and that it was either authorized or due to an emergency. Do not allow the employer or a medical provider to submit bills to your group health insurance provider. Most group plans (such as Blue Cross Blue Shield, for example) contain an exclusion for work related medical expenses. If the workers’ compensation carrier will not pay valid authorized or emergency medical expenses, we have to file a request for assistance with the Tennessee Department of Labor or file a motion with the Georgia State Board of Worker’s Compensation and try to get an order compelling payment.
How much do I get for mileage for medical treatment?
In Tennessee cases, the reimbursement rate is $ .46 per mile for travel to authorized medical providers more than 15 miles one way from your home or work. In Georgia cases, the reimbursement rate is $.40 per mile for all travel to any authorized medical provider, including going to the pharmacy, regardless of location.
What happens to my medical care once I settle the case?
In Tennessee, you are entitled to lifetime medical care for your injuries so long as the treatment is related to the original work injury. Tennessee law prohibits settlement of future medical care for at least three years after settlement of the disability issues. After three years, if you are considering settling your future medical care, you should consult with an experienced attorney, as settlement can be complicated. In Georgia, there is no law prohibiting settlement of future medical care, and generally insurance companies will not settle cases unless you agree to close future medical.
What is a Medicare Set-Aside or MSA account?
If you are eligible for Medicare benefits, or will become eligible for Medicare within 30 months, settlement of future medical care becomes much more complicated. Medicare does not want employers or workers compensation insurance companies to dump their obligations for future medical expenses onto the Federal government. So, if settlement of future medical care is proposed and you are eligible for Medicare, a certain amount of the settlement money must be “set-aside” in a separate account to be used only for those medical expenses that would otherwise be paid by the workers’ compensation insurer. The account is called a Medicare Set-Aside account and is commonly referred to as a MSA. Only after the MSA funds have been properly spent on medical care will Medicare assume any responsibility for payment of your work related medical expenses. The MSA is designed to protect your right to Medicare benefits, and to protect the employer and insurer from being sued by Medicare for not paying for your future medical care.
What if I have problems obtaining medical care after the case is settled? We routinely assist our current and former clients with medical issues in our Tennessee cases, even after the case has been settled or tried. Do not hesitate to call us. In Georgia cases, future medical care is typically not an issue since almost all cases that are settled include closure of future medical care.
How much will I be paid while I unable to work?
You are entitled to two-thirds of your average weekly wage, subject to maximum limits which are different in each state. In a Tennessee case, the maximum weekly benefit for temporary total disability is currently $867.90 for accidents occurring after July 1, 2011. In a Georgia case, however, the maximum rate is only $500 for accidents occurring after July 1, 2007.
When does the insurance company have to send me my check?
After an injury occurs, there is a one week waiting period before any disability benefits are due, so you get nothing for the first week off work. However, if the disability continues (14 days in Tennessee or 21 days in Georgia), the employer and their insurance carrier have to pay the first week’s benefits retroactively.
Where is my check?
This is the most frequently asked question we get! Insurance companies are notorious for not paying on time. Unfortunately, they can legally run about two weeks behind on payment. In a Tennessee case, the first payment is due within 15 days after the employer has knowledge of the injury and benefits should be paid at least semi-monthly thereafter. While we can call and find out if a check has been processed and mailed, it is difficult to enforce timely payment of benefits in a Tennessee case. In a Georgia case, benefits are due 21 days after the employer has knowledge of the injury and benefits are to be paid weekly thereafter. Georgia law provides for an automatic 15% penalty if disability benefits are not paid when due.
Will I get my job back?
It depends. Of course, we hope that as a valuable employee with knowledge and skills, your employer will be anxious to have you back and will hold your job for you as long as possible. The workers’ compensation laws in Tennessee and Georgia do not require your employer to hold your job for you after an injury. However, your employer and their insurance company can frequently save money on the claim by putting you back to work when you are released by your doctor, which gives them some financial incentive to try to get you back to work. This is a complex issue, but basically any recovery for permanent partial disability in Tennessee is capped at 1.5 times the permanent impairment rating if you are able to return to work at the same or greater wage. If they do not offer to return you to work at the same or greater wage, then you can be awarded up to five or six times the permanent impairment rating, depending on the nature of your permanent work restrictions and other factors. In Georgia, temporary benefits can continue for nearly eight years if the employer does not put you back to work, so finding a job for you can save their insurance company a lot of money. And, the Federal Family & Medical Leave Act (FMLA) may apply in certain situations, and require the employer to restore you to your former position, or an equivalent position.
Can I still collect benefits if my doctor releases me to light duty?
If you are released to return to work with certain restrictions (light duty), generally your employer has the option of offering a job within those restrictions or continuing to pay disability benefits. If you have to return to work at a job that pays less money, you may be eligible for temporary partial disability benefits to make up for some of the difference between what you were earning before and what you are now earning on the light duty job. And, benefits for permanent disability may be awarded even after you return to work, if you have permanent impairment.
How much will I be paid if I perform light duty?
That is up to the employer, and it may be less that what you were earning before the injury. But, you may be eligible for temporary partial disability benefits as described above.
Do I have to come back to Tennessee to perform light duty?
Both U.S. Xpress and Covenant Transport may try to force you to come to Chattanooga for light duty work, even if you live hundreds of miles away. They generally provide motel accommodations and van service to take employees to medical providers. Can you refuse? Yes.
Can I be fired for making a workers’ compensation claim?
You can be fired at will in Tennessee or Georgia, except for reasons prohibited under state or Federal law, such as race, color, sex, national origin, age or disability. In theory, Tennessee recognizes a cause of action for retaliatory discharge for making a workers’ compensation claim, but as a practical matter such cases are very difficult to prove. An employer can almost always find a pretense for firing an employee, such as being late for work or for violating a safety rule, etc. However, there are financial incentives that usually discourage responsible employers from firing employees after an injury on the job, as discussed above.
Can I obtain unemployment benefits after being injured on-the-job? Generally you cannot collect both unemployment benefits and disability benefits under workers’ compensation. You must be ready, willing and able to work to qualify for unemployment benefits. If there is a dispute over your injury on the job, or if the workers’ compensation benefits are delayed for some reason, and you are able to do light duty work, you can apply for unemployment benefits to help you get by, as long as you are careful to state on the application that you are willing to work within your restrictions.
Can I collect Social Security disability benefits (SSDI) for a work injury?
If the injury is serious enough to cause disability lasting at least 12 months, you may be able to obtain Social Security disability benefits. Social Security pays approximately 80% of your pre-disability average income. Workers’ compensation benefits are typically only two-thirds of your average income. However, Social Security takes a credit or offset for the worker’s compensation benefits, so you can not obtain a combined benefit from Social Security and workers’ compensation in excess of 80% of your pre-disability income. Qualifying for SSDI also makes you eligible for Medicare. We generally advise our clients to apply for SSDI in serious injury cases, and then if the claim is denied, we can file an appeal for you.
If we go to court, will I have to testify in front of a jury?
No. In Tennessee, workers’ compensation cases are tried in front of a Judge or Chancellor, and in Georgia they are tried before a special judge (ALJ) who only hears workers’ compensation cases.
Can the insurance company be held accountable for taking forever on my checks, prescriptions and procedures?
Only to the extent that the laws provide for penalties and/or an award of attorneys’ fees for unreasonable delay or refusal to pay. Such provisions vary from state to state.
Can I sue my employer for pain and suffering?
No. Workers’ compensation is a no-fault system that provides benefits regardless of who caused the injury. Accidents on the job happen for many reasons. Sometimes a co-worker is careless, sometimes the employer furnishes defective equipment or working conditions are unsafe, and sometimes the injured person makes a mistake. Even if you are careless, cause an accident and hurt yourself, you still get workers’ compensation benefits. The trade-off for such a system is that you cannot sue your employer for anything other than workers’ compensation benefits even if the injury was your employers’ fault. If the injury was due to the fault of someone other than you, a co-worker or your employer, however, you may be able to sue for pain and suffering. For instance, if you are in a wreck out on the highway and it was not your fault, you can collect workers’ compensation benefits and still sue the “at fault” driver for pain and suffering and other damages.
In Tennessee, mediated settlements at the Department of Labor are normally paid in 14 days. After other settlements, payment can take anywhere from two to six weeks, or longer in complex cases, and court approval is required. In Georgia, after the settlement papers are prepared, they have to go to the State Board of Workers’ Compensation for approval, and that usually takes two to three weeks. Georgia law requires thesettlement funds to be paid within 20 days after approval by the Board.