1. You must give notice to your employer.
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• Montana law requires you to give notice of your on-the-job injury or accident to your employer within 30 days after it occurs. This is a stiff requirement. Many employees decide to "tough it out" through a job injury and say nothing until it is too late. The better practice is to go to the employer's office on the day an injury occurs and give notice of it, even if you do not get medical attention right away, or at all.
• Failing to give notice of injury to an employer damages your credibility down the road. An injury that seems minor early on may flare up later. If it does, failure to report it in the beginning opens the door to an attack on your character. To protect yourself, you should always report injuries when they occur, even if you do not have any lost work time. • If you re-injure the same joint or body part that was injured under an old claim, you may potentially lose medical benefits under the old claim. If this is a possibility, you should seek legal advice. Call us at (406) 728-4682. |
2. You must file a claim within one year.
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• There is also a time limit for filing a claim. This must be done within one year after the injury. Usually your medical provider takes care of this by filing a first-report-of-injury form. This doubles as your claim. But problems can crop up if neither you nor your employer report the case to the workers' compensation insurer, and the employer pays medical bills directly without notice to the insurer. This is another place where you can be discredited by the insurer or the employer.
• Your claim may not be completely barred if you miss the one-year deadline. Under some circumstances Montana law allows for an extra period of time to be added on. To protect your rights here, you need a lawyer to make sure that your argument is properly presented. |
3. Do you have the right to choose your own doctor?
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• You have the right to choose your doctor when you are injured, but this right under Montana law is limited. The doctor you choose must be certified to do workers' compensation cases, and if you want to change doctors for any reason after you have been seeing one doctor for awhile, the insurer will take control. The law allows the insurer to assign medical providers if you are no longer getting care from the doctor you initially selected.
• Doctor choice issues come up regularly in workers' compensation, and anyone fighting this fight should have legal representation. The old "company doctor" phenomenon is still a real issue in workers comp. • If during a workers compensation case you are referred by the insurer to another doctor for an independent medical evaluation, you probably should get legal representation if you haven't already done so. These so-called IME's are not done to benefit the worker's claim but to limit it for the benefit of the insurer. |
4. What is maximum medical improvement (MMI)?
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• When you are injured, the turning point is the date when healing is declared complete, "as good as it is going to get". This is the time of maximum medical improvement (MMI date).
• Temporary total disability benefits (TTD) are available to you if you are off work due to an injury. These TTD benefits continue until you reach MMI. In modern times, you are always under pressure to return to work as soon as possible, even if you have already gone back at doing light duty. • After MMI, there is usually an evaluation of impairment and restrictions, both done by the treating doctor or an assigned outside evaluator. At that point you and your lawyer look at physical restrictions, impairment percentage, and wage loss. These are the main components of a partial disability settlement. For more information, call us at (406) 728-4682. |
5. Medical Care Before and After MMI
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• Workers' compensation law generally allows your medical care prior to MMI to be guided by the treating physician. In the past, your doctor controlled the course of treatment. Not any more. Nowadays, doctors are subject to a series of guidelines for the type of treatment allowed for an injury, and insurance representatives look over doctors' shoulders every day.
• The Montana's Workers' Compensation Act has long authorized open medical benefits for an injury "for life," or until retirement. This long-established benefit was compromised by legislation in 2011. Workers compensation insurers have long sought ways to eliminate aging claims on the books that have an undefined medical liability that prevents closure of the claim file. But you may need long-term medical benefits if your injuries are likely to cause long-term deterioration in a body part. Whether to push for medical benefits in a claim with long-term medical problem; whether to keep medical benefits in place or settle them; and what precautions you should take to protect future medical benefits (if you can), requires careful analysis by you and your lawyer. |
6. Partial/Total Disability
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• Although Social Security benefits are often payable to people with a total disability, workers' compensation permanent total disability is more rare. The standards for permanent total disability in workers' compensation are stiff. Workers compensation insurers typically require you to go to court if you claim permanent total disability from an on-the-job injury.
• Insurers employ rehabilitation professionals to argue that you can return to some sort of employment, even where your injury is very disabling. • Social Security disability benefits are also not easy to obtain, but they are not contested in the same way as in workers' compensation. The Social Security and workers' compensation systems can work together and both types of benefits can be paid at the same time; but when that does occur, Montana workers compensation law and Social Security law require a reduction of either work comp payments or Social Security disability payments, so that there is not a complete doubling up of benefits. The formula for this is different, depending upon who is taking the benefit reduction: SSA or the workers' comp insurer. |
7. Impairment Award.
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• Impairment rating is part of the partial disability benefit in workers' compensation. Where you have an injury or occupational disease that is not based exclusively on complaints of pain, is established by objective medical findings, and is a "class 2" or greater impairment (new law), there is an award of money payable as soon as temporary total disability ends, either as a lump sum or as installment payments.
• The 2011 legislation imposes limits on impairment rating payments for "class 1" injuries (where the impairment is "mild"). Injuries prior to 2011 are not subject to this limitation. The impairment is determined by a doctor who must base his evaluation on the "Guides to the Evaluation of Permanent Impairment, 6th Ed."., by the American Medical Association. Determining an impairment rating has become a specialty area. Fewer medical doctors, even specialists such as orthopedists, are willing these days to do impairment rating evaluations. If you are having a problem or a question on this subject, call us at (406) 728-4682. |
8. Settling Medical Benefits.
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• Insurers have been willing in recent years to settle medical benefits, at least when it is advantageous to them. Medical benefits can be added into settlement of a claim where the liability is disputed, and where the insurer is willing, in ordinary claim settlements.
• In many instances Medicare set-asides are required if your injury has any potential long-term problem that may require Medicare to pay the bills. Medicare set-asides are still frequently done for these types of settlements, but the set-aside process takes time and can reduce the non-medical value of your settlement. For further information on Medicare set-asides, call us at (406) 728-4682. |
9. Mediation.
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• In cases where your workers compensation benefits are disputed, mediation is required before you can bring your case to the Workers Compensation Court. Mediation is done by employees of the Montana Department of Labor. The process involves making a demand for resolution of the issue, followed shortly after by a request to mediate the issue, then an actual mediation session by telephone, and finally a recommendation from the mediator which, if the case does not settle, opens the doors of the courtroom.
• When it works, mediation helps you settle your issue, or your case. The disadvantage is that if no settlement occurs, time is lost and the unrepresented claimant faces a complex situation. If you have a case that requires mediation and you do not have legal counsel, call us at (406) 728-4682. |
10. Uninsured Employers
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• If you are injured on the job and your employer has failed to get workers' compensation coverage for you, you will look to the Uninsured Employers' Fund (UEF) for assistance. That Fund pays benefits based on what regular workers compensation insurers pay.
• The UEF can be difficult to work with. They generally have the same defenses against claimants that other workers compensation insurers have, and they are not afraid to challenge your credibility aggressively. There is no easy approach to workers' compensation cases, including those involving the UEF. Because your credibility is as much on the line in a UEF case as it is in other cases, you should have legal counsel in any claim involving an uninsured employer. |
11. Liability of Third Parties for Your On-the-job Injury.
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• If someone else injures you while you are on the job and they are not part of your company, or if a defective product or a negligent automobile driver injures you while you are at work, Montana law allows you to pursue the wrongdoer separately from your workers' compensation claim. This is important!
• There are rules about subrogation (repaying your workers' compensation insurer for your lost wages and medical bills paid); but the worker is entitled to be made whole under Montana law. Questions about pursuing a claim against a wrongdoer when you are receiving workers' compensation need a timely answer, and we can help you with those questions at this office. Call (406) 728-4682. |
12. Intentional Injuries.
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• Workers' compensation is your exclusive remedy against an employer. You cannot sue your employer for negligence, even where you can easily show that negligence was the cause of your injury. Montana law allows claims against an employer only where the employer has set out on purpose to injure you the worker, and succeeded in doing so. In essence, you can only sue your employer if he assaults you. Even here there is likely to be a close question about what an employer's intentions were. If you are in one of these situations, you should have it evaluated by a workers' compensation attorney. Call us at (406) 728-4682.
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13. Independent Contractor.
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• A certificate is available for persons who want to qualify as independent contractors and not be adding to an employer's covered work force. An application must be submitted, and an exemption must be in place in order for the independent contractor's status to be recognized. A person with an independent contractor exemption is precluded from getting any workers' compensation benefits in the case of injury and the certificate lasts for two years. It can be revoked before the two-year period is up, and the issue of independent contractor violations is a hard-fought battle that comes up regularly. For assistance in an independent contractor dispute, call us at (406) 728-4682.
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14. Working while Drawing TTD: A Felony
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• Any worker drawing temporary total disability benefits while off work and recovering from an injury is warned not to do any compensated work during that time unless specifically authorized. This warning should be taken seriously. Drawing benefits that are not allowed is a felony. Insurers are willing to prosecute. Be careful!
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15. Class One "Mild" Injuries.
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• In 2011, the Montana Legislature eliminated partial disability settlements for mild injuries. Before 2011, there was a requirement only that there be a rated impairment of some percentage. Now, low percentage impairments are given a "class 1" rating, and even though there is an impairment, there is no settlement for that impairment if it is mild. This is a very clear change in the law that is resulting in frequent problems in new cases. For further information, call us at (406) 728-4682.
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