Common Myths About Workers Compensation. Part Two.

This is part two of our discussion of common myths about workers’ compensation claims. We Previously addressed some of the most frequently heard myths in Part One. We recommend that if you have any questions about your right to file for workers’ compensation and what benefits you’re entitled to claim, you contact our office. We’ll advise you.

Myth: Workers’ compensation benefits are the same as a personal injury recovery.

That’s false. As we discussed in part one, workers’ compensation is a compromise. While most of your financial damages are compensated when you file a workers’ compensation claim, there are some limitations on what you can receive. Here’s a summary of what is and what is compensated.

• Pain and suffering. Unlike personal injury claims, you don’t receive compensation for your pain and suffering. Pain and suffering damages include payment for every time you itch, moan, cry, or feel any physical pain – and every time you feel upset, anxious, worried, or depressed about your health.
• Medical bills. Workers’ compensation claims and personal injury claims are similar in that both should pay for all of your medical expenses. These bills include your emergency care (transport and hospital care), any hospital stays, any surgeries including hospital surgeries and surgeries at ambulatory surgery centers, visits with your physicians, physical therapy, occupational therapy, vocational therapy, speech therapy, psychological therapy, assistive devices including prosthetics, and medications.
• There are no “damages” in the traditional sense, like personal injury. As mentioned above, you are not entitled to recover for pain and suffering for really any kind of “damages” for the terrible inconvenience of having to deal with your claim and what it has done for you. In a personal injury case, if your case ever appeared before a judge or jury, that factfinder would be entitled to consider damages, and award you money for things such as the pain or inconvenience of having to deal with your injuries. That is not the case in a worker’s compensation claim. You may certainly be entitled to payment by the insurance company of any medical bills related to, for instance, depression in connection with having to deal with pain or other psychiatric issues, but you are not going to receive money to compensate you for the negative impact or pain of having to experience these issues.

Workers’ compensation may even pay for the cost of travel if the doctors you need to see aren’t close to where you live.

• Wage loss benefits.Personal Injury Court Case or Settlement vs. Workers Compensation.
  • Unlike workers’ compensation, when you pursue a personal injury claim, you are entitled to seek 100% compensation for all your income losses for as long as you can’t work even if you have a permanent disability. Generally, the physicians you choose make the determination about whether you can work. The defendants in personal injury cases have the right to ask for an independent medical review. They can also obtain evaluations from vocational experts about your long-term ability to work. In personal injury cases, you may even be entitled to lost benefits such as healthcare insurance, bonuses, and retirement contributions and if you cannot return to your job due to your injuries, your loss of wage- earning capacity for the remainder of our life.
  • Workers’ compensation – temporary total disability benefits. Unlike a regular injury claim, your worker’s compensation benefits are limited by statute. If you become injured while working or suffer an occupational illness, you’re entitled to receive temporary total disability benefits while you are seeking treatment for your injuries. You don’t receive 100% of your losses like personal injury cases. You can only receive 2/3rds of your average weekly wage for up to 500 weeks, depending on whether you are under an Award and whether your doctor continues to hold you out of work or on light duty. There are maximum rates for these earnings, no matter how high of a wage earner you are. Once you reach the point of maximum medical improvement, you will be evaluated to determine if you have a permanent disability or restrictions.

If you can return to work because your injuries have healed well enough for you to do your job, and your doctor releases you to full duty, your wage benefits stop. You’re still entitled to have your doctor bills paid for the care you need to ensure your health doesn’t get worse.

Temporary Partial Disability. If you can do some work but not at the pay scale you were earning before your accident, due to light duty restrictions set by your doctor, you can receive 2/3rds of the difference between your average weekly wages and the amount you’re earning at the lower pay scale for potentially up to 500 weeks, in combination with any other weekly payments you have received or will receive. This is called Temporary Partial Disability or TPD.

Extended Benefits in North Carolina. North Carolina does have a provision under NCGS 97-29 ( C ) where you can potentially extend your benefits beyond 500 weeks if you can prove, after reaching 425 weeks of ongoing benefits, that you have sustained a “total loss of wage-earning capacity.”

Virginia does not have this provision. Outside of that North Carolina Provision, the only other way you can obtain weekly compensation benefits in either State beyond the 500- week cap is to prove that you are permanently and totally disabled. Only very severe, specific injuries qualify for this level of disability. If you do qualify, you would be entitled to lifetime weekly benefits. Understand that this is a pretty rare finding by the Commission.

• Permanent and total disability benefits. In workers’ compensation cases, when you reach the maximum medical improvement stage and you still can’t work, and you are near the end of your 500 weeks, you would need to be evaluated, or rely on recent doctors’ opinions, to determine whether you have a permanent and complete disability that would qualify you for permanent and total (i.e. lifetime) disability. You would likely have to go to a Hearing to qualify. Only under very rare circumstances, such as severe paralysis, will the comp carrier voluntarily agree you are entitled to weekly compensation payments for the rest of your life.

In North Carolina, only certain disabilities are considered permanent and total. Meaning, if granted, you would receive LIFETIME compensation, not just the 500 weeks. These include:

(1) The loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof, as provided by G.S. G.S. §97-31(17).

(2) Spinal injury involving severe paralysis of both arms, both legs, or the trunk.

(3) Severe brain or closed head injury as evidenced by severe and permanent:

1. Sensory or motor disturbances
2. Communication disturbances
3. Complex integrated disturbances of cerebral function; or
4. Neurological disorders.

(4) Second-degree or third-degree burns to thirty-three percent (33%) or more of the total body surface.”

In Virginia, you can receive permanent and total disability benefits, i.e. lifetime compensation, not limited to 500 weeks, only if you have the following types of injuries:

• The loss of both hands, arms, feet, legs, eyes, or any two of these body parts in the same work accident;
• An injury that results in total paralysis, as determined by the Virginia Workers’ Compensation Commission; or,
• A brain injury that is traumatic and severe enough to render the worker permanently unable to qualify for gainful employment.

It should be noted that unfortunately, North Carolina Law does not look at the word “loss” when talking about hands, arms, feet or legs as set forth in the above statutes in the same way that Virginia Courts do, but rather takes it literally to mean a complete loss of that body part, as in amputation of that body part.

As will be further described below, unlike North Carolina, Virgina Courts interpret the word “loss,” when talking about hands, arms, feet or legs to mean ANY loss as to those body parts which significantly impairs the worker’s ability to engage in gainful employment. Meaning, for example, if someone had two legs which were rated to have a 45% permanent partial impairment in the left leg and 65% permanent partial impairment in the right leg, and this interfered with the injured workers’ ability to engage in gainful employment, the Commission would likely rule that permanent and total. We will now discuss what is meant by Permanent Partial Impairment and how it might be arrived at by your physician.

Permanent Partial Impairment Benefits (PPI). Even if you are not completely disabled and even if you return to full duty, you could still be entitled to something called Permanent Partial Impairment (PPI) benefits. Normally your doctor or an independent doctor evaluates your injury and your job skills. That doctor determines if you have a permanent disability and the severity of the disability by relying on a Functional Capacity Examination (FCE). As part of this testing, the FCE will often include a permanent impairment rating of your injured body parts, assuming those parts were ratable.

Based on the results of the FCE, the doctor will usually rely on that test to assign a severity level (called a permanent impairment rating) to the body part or parts that were injured in the work accident. Generally, doctors follow the American Medical Association’s (AMA’s) book Guides to the Evaluation of Permanent Impairment to evaluate your disability.

Once that rating is given, which is in the form of a percentage, the next step is for your attorney to look at the relevant statute to determine the maximum number of weeks you would be awarded if that body part was completely lost.

Then, your attorney would multiply those weeks times the percentage rating. For instance, in Virginia, if you had a leg injury, even if you returned to full duty, the maximum permanent impairment you could receive if the leg was completely lost is 175 weeks of TTD payments (2/3rds of your average weekly wage). So, if your doctor gave you an impairment rating of 20%, you take the maximum number of weeks (175) and multiply that times 20% to give you 35 weeks. If your TTD rate was, let’s say $650.00, that would entitle you to another $22,750.00 in money for your PPI, even if you were back at full duty.

But understand this. If you are unable to return to your job and you are receiving TTD money already, you cannot get PPI money. Also, the PPI rating cannot increase the maximum of 500 weeks of TTD unless you are considered permanently and totally disabled. In other words, in most cases where you are under an Award, not being accommodated, cannot return to your job because of your injuries, and receiving your TTD checks, in terms of trying to settle your case, the rating is not that important.

A PPI rating only becomes important in three instances:

1. Where you have returned to work full duty.
2. Where you are under light duty restrictions, working, and being paid less than your pre-injury wage. This is called temporary partial disability, and you can receive PPI money while you are on TPD.
3. Where, per the Virginia statute for Permanent and Total disability, you have two or more ratable body parts that have been rated. Virginia considers those ratings as a “loss” of those body parts, depending on the ratings handed down on those body parts. If they are sufficiently high, this may qualify you in Virginia for permanent and total disability, if the injuries to those body parts interfere with your ability to return to work.

We’ll continue with our conversation about other myths in part three of our discussion.

At Joe Miller Ltd., we’ve been strong advocates for injured workers for over 35 years. Our North Carolina and Virginia workers’ compensation lawyer has helped thousands of employees obtain full compensation when they can’t work due to workplace accidents or occupational illnesses. We’ll answer all your questions and guide you through each step of the claims process. To speak with our accomplished workers’ compensation lawyer, call attorney Joe Miller, Esq., at 888-667-8295 or fill out my online contact form to schedule a free consultation.

Our law firm does have a way for you to provide your details of your accident and injuries if you simply want to do that electronically from the comfort and safety of your home at any time of day or night. To utilize this service, simply click here: New Electronic Case Review.

We’ll get back to you, typically within 24 hours to provide our response as to whether your situation is one where we can provide you with legal representation. If we require more information, we’ll contact you and ask for that information in order to make that determination as to whether we are the best folks to assist you. If we ultimately determine that we cannot represent or assist you, we will not leave you high and dry. We’ll do our best to provide you with other resources to assist you.