In handling workers’ comp cases, we have found that company doctors may downplay the severity of accidents that occur at work. Injured workers come to attorneys complaining of problems that continue to hurt weeks after the incident. Or worse, they are concerned because they received an icepack and a band-aid from the company doctor when it’s clear that they should have been taken to the emergency room — by ambulance. What can be done and who’s to blame? Doctors report to others up the corporate ladder and profits can be more important than employee well-being. The Occupational Safety and Health Administration (OSHA) keeps track of reported safety concerns and incidents. Doctors and staff are under pressure to keep any concerns quiet to avoid fines for safety violations. The Whistleblower Protection Program gives rights to employees who notify OSHA of any concerns. The US Government Accountability Office has urged quicker audits and more worker interviews when concerns are reported — and also reviews at random intervals to help combat inaccurate corporate injury reporting.
The overwhelming majority or our clients return to work. Fortunately, a fairly small number are so severely injured that they’re never able to return to work.
It is fairly unlikely that your company is going to blackball you after you’re gone. Most companies understand the legal risk they take in doing that and many have a policy that they will confirm your dates of employment and rate of pay but nothing beyond that. Admittedly, smaller companies may be more likely to take a chance by saying something negative but it’s unlikely.
The one word of caution we need to put out is that under the new laws if you misstate your physical condition and you reinjure yourself the new employer could be off the hook for workers’ compensation. Don’t be alarmed – you do not have to turn over your medical records and stuff like that. But if you’ve just had a fusion on your back and the prospective employer tells you how physically demanding the job is and asks if you have any back problems… well, this is a lousy time to lie and say you are just fine. Forget the worker’s compensation implications for a minute. Do you really want to reinjure yourself and go through all of this again? We didn’t think so.
Use your common sense. You don’t have to advertise your limitations, but don’t put yourself in a position where you cannot safely do the job. For your own sake.
You’ve got a whole new claim. There are not really pre-existing condition exclusions in the Workers’ Compensation Act. The closest thing is if you lie your way into a new job by denying that you have anything physically wrong with you. If you promptly reinjure yourself the claim could be denied.
Hopefully you’ll never have another claim!
The Industrial Commission (informally called the NCIC, or sometimes super informally called just the IC) is the government agency which is in charge of handling all workers’ compensation claims. You may not realize this but workers’ compensation claims do NOT go to court. You will never see a judge or a jury in a workers’ compensation case.
If there is a dispute in your case it will be heard by a Deputy Commissioner. The Deputy Commissioner is like a judge. He or she will hear your side of the story, your employer’s side of the story, what the doctors have to say and then will file a written decision called an Opinion and Award.
The losing side on and Opinion and Award can file an appeal to the Full Commission. The Full Commission is a panel of three Commissioners who reconsider the evidence, which was presented to the Deputy Commissioner. The attorney for each side gets 20 minutes to tell the Full Commission what they should focus on, and the Commissioners may very well be asking that attorney a lot of questions.
Deputy Commissioners are like judges for workers’ compensation. They have most of the powers of an elected judge. Their decisions are in writing and are called Opinions and Awards. A key difference between judges and deputy commissioners comes in how they get their jobs and how long they keep their jobs. Judges are elected and keep their jobs until there is a new election. Short of extreme situations when they are impeached a judge is certain to continue their term until the next election. That allows the judges to make decisions that they believe are consistent with the facts and the Constitution. Sometimes those decisions are unpopular. However only the public can remove a judge for making unpopular decisions – by voting the judge out.
Gov. McCrory and the new legislature recently passed a law which strips the deputy commissioners of this vital protection. Beginning in 2014 the Chairman of the Industrial Commission may terminate deputy commissioners at his sole discretion. We haven’t seen the effects of this highly controversial law. But it is quite plausible that deputy commissioners may be more cautious in their decisions. This is particularly true while the current political climate seems, at least to us who have been doing workers compensation for many years, to be favoring employers and insurance companies.
