ASK LUCY

Q. How does Kentucky workers’ compensation work?

In Kentucky, employers are required to provide coverage to their employees for any injuries on the job. Most do this by obtaining an insurance policy from a third party. If you are injured on the job, the employer or its insurance company must pay for your medical treatment and time off work. You may also be entitled to vocational retraining benefits if your injury prevents you from returning to your usual work. Last, the employer must compensate you for any permanent impairment you suffer from your work injury. 

Q. Can my employer punish me for seeking workers’ compensation benefits?

No. By law your employer cannot retaliate against you in any way for seeking workers’ compensation benefits. If they do, you may have a separate cause of action against them for wrongful termination. In my experience, most employers are very careful not to violate this law, but some will because they either don’t know the rules or because they think they won’t get caught. Do not let your employer intimidate you from seeking workers’ compensation benefits. Call a lawyer if you think you are suffering retaliation. 

Q. How much does it cost to hire a lawyer for a workers’ compensation claim?

Nothing. I get paid on a contingency basis, meaning I take a percentage of any monetary recovery I get for you. The fee is set by statute as 20% of the first $25,000.00, 15% of the next $25,000.00, and 10% of the remainder of the award up to a maximum of $18,000.00. If I incur any costs prosecuting your claim, they are repaid from the monetary recovery as well. If we recover nothing, you don’t owe me a thing. I do not get paid or reimbursed unless you get paid.

Q. I was injured at work and my employer and the insurance company are paying for everything. Do I really need a lawyer?

Yes. You absolutely do. From the very beginning the insurance company is going to be on the lookout for any way to deny your claim or minimize their exposure. They will not hesitate to hire medical experts, or consult with their own lawyers, and deny anything they can as soon as they can. They are going to try to cut you off sooner or later, one way or another. If you don’t know the law, how would you know whether they did what they were supposed to do? What if they just made an honest mistake? It could cost you and your family a lot of money. You should not take their word for it. Level the playing field and get a lawyer. It doesn’t cost anything and they cannot retaliate against you in any way for getting a lawyer. It is your right to do so. 

Q. What workers’ compensation income benefits do I receive while I am off work due to an injury?

If you miss work for a work injury you are entitled to temporary total disability benefits that is calculated at two-thirds of your average weekly wage. The insurance company pays you these benefits until you reach maximum medical improvement or reach a level of improvement that would allow you to return to work. Be warned this is one of the first areas where the insurance company will start to mess with you. They will send you to an IME - independent medical expert – who says you are at maximum medical improvement even though you are still in pain and going to the doctor. Or, they will say that you are fine to go back to work without restrictions, no matter how absurd that might be considering your injury or job requirements. The insurance company can then cut off your temporary total disability benefits.  If this has happened to you then you should call a lawyer.  

Q. I was working two jobs before my work injury. How does that affect my off-work income benefits?

If you had another job than the one where you were injured, then it is called concurrent employment. So long as the employer where you were injured knew about your concurrent employment, then those wages are included in calculating your average weekly wage and income benefits. Sometimes employers will try to say they didn’t know anything about your concurrent employment in order to not include the concurrent wages and save money. If they knew – and you know they knew – then get an attorney.  It can make a huge difference in the benefits you receive.  

Q. What medical benefits am I entitled to under workers’ compensation? Do I have to pay for anything?

You are entitled to all medical treatment that is reasonable and necessary for the cure and relief of your work injury. Unlike private health insurance, there are no out-of-pockets, deductibles, or co-pays for workers’ compensation medical coverage. Your treatment is covered 100%.  The insurance company can try to contest treatment, and they almost certainly will at some point, but in general you are entitled to full medical benefits, potentially for the rest of your life, depending on the severity of injury injury.  

Q. Can I choose my own doctor or do I have to go where the insurance company tells me?

Generally, you are allowed by law to choose your own doctor. The only exception to this is if your employer or the insurance company participate in a managed care plan. But even in those situations, you get to pick from a list of doctors in that plan. If you don’t like your current doctor, or feel like the doctor was forced on you by the insurance company, then get an attorney to assist you. 

Q. I have private health insurance and my own disability plan? Do I really need to pursue workers’ compensation benefits?

Yes. Workers’ compensation provides several benefits that you do not get from private plans. Workers’ compensation pays your medical treatment at 100%. You do not have to make any co-pays or deductibles. Workers’ compensation medical benefits also potentially continue for life, so you do not have to worry what will happen if you lose your health insurance. Short term and long-term disability benefits are often limited in duration.  Workers’ compensation temporary total disability benefits go so long as you meet the requirements, even if it is several years. You can even reopen your claim later for additional off work benefits if your condition worsens and you become unable to work. If you never return to work, permanent total disability benefits potentially goes to age 70, or perhaps longer depending on your age at the time of the injury. Workers’ compensation reimburses you for any permanent impairment you suffer as a result of the injury that often equals a significant monetary award.   If you don't pursue a workers' compensation claim, your employer and the insurance company will be thrilled you saved them some money, but they won’t be there to help you down the road. You have no reason not to pursue all the workers’ compensation benefits that you are entitled to.

Q. My employer did not have any workers’ compensation insurance. What do I do?

If your employer does not have coverage then your case gets referred to the Uninsured Employers’ Fund to pay you the same benefits you are entitled to. You will need to file a Form 101 to get the Uninsured Employers Fund involved. 

Q. What does it mean to “file a claim?” How long do I have?

This gets used interchangeably for several things. Some people think they “filed a claim” when they reported the injury to their employer or when the employer reported it to their insurance company. But more specifically, to “file a claim” means to file a Form 101 with the Department of Workers’ Claims to seek permanent benefits. Your case then gets assigned to an Administrative Law Judge to decide whatever the contested issues are and in most cases award permanent benefits based on your impairment rating. If your employer has denied your claim, denied medical treatment, cut off your TTD early, or anything else that you was unjust, filing a Form 101 is the next step to get it before the ALJ for decision. You do not have to take your employer’s word for anything. You can ask an ALJ to decide the issue. You must file a Form 101 or settle your claim in order to get permanent medical benefits and future rights. If you have an open claim that has not been settled, you should speak with a lawyer. 

Q. How long do I have to file a claim (Form 101)?

You are on a strict time limit to file a claim: two years from the date of injury or from the last income benefit payment. If you do not file a Form 101 or settle your case by that point then your claim is forever barred and the insurance company no longer has to pay you anything. This is true even if you still need medical treatment or if your work-related condition gets worse. Due to these strict time deadlines it is very important that you speak with a lawyer to make sure you file your claim or reach a settlement before it’s too late.  

Q. The insurance company has scheduled me to be seen by another doctor? What is this? Do I have to go?

This is called an IME – independent medical examination – and the insurance company is allowed to have you examined so long as you are seeking workers’ compensation benefits. But be warned: this is NOT for medical treatment purposes and NOT to help you. They are looking for the doctor to give them an opinion that allows them to quit paying you benefits, either to deny the claim, deny certain treatment, terminate your off work benefits, etc. The doctors are not “independent” at all. They are doctors with very conservative tendencies who often issue medical opinions that aren’t even consistent with the applicable law. If the insurance company is sending you for an IME, you need to lawyer up immediately.

Q. The company has denied my claim because it was “pre-existing” but I never had any problems before this injury.

This is a common tactic the insurance companies use to deny claims. They will say that your medical condition was pre-existing and thus not related to your work injury. Sometimes they do this when the person had never had any symptoms or seen a doctor in their life for the condition until they had the work injury. In Kentucky workers’ compensation, the insurance company has to show that the pre-existing condition was symptomatic and impairment ratable even before the work injury. Otherwise, the condition was dormant and brought into disabling reality by the work injury. Even if you did have a prior medical issue – prior low back pain for instance – if it was many years before and you were otherwise fine before the work injury, it is compensable. Even in situations where you had active problems, if the work injury made them worse, and for instance hastened the need for a surgery that had never been discussed before, it is still compensable. So long story short: just because the insurance company doctor said your condition was pre-existing doesn’t mean anything. Get a lawyer. 

Q. I was just injured. What should I do?

Make sure you tell your employer immediately. Fill out a first report of injury and ask for a copy. Different companies may have different methods about how to go about this, but tell your immediate supervisor and if he or she takes no action then go the next level up or to human resources. If you feel you need medical attention, ask to go to a doctor. Don’t tell yourself that “It’s nothing. I can walk it off.” Oftentimes people think that and then cannot get out of bed the next day. If you do go to the doctor make sure you tell them straight up you were injured at work and exactly how it happened so it is documented in the treatment records. 

Pro Tip: If you are injured on a Friday and are scheduled off that weekend MAKE SURE you report it before you leave no matter how minor it may seem at the time. Do not wait until Monday or the employer will waive all kinds of red flags and say you actually hurt yourself over the weekend. If you are injured on a Friday and then wake up Saturday in more pain, even if you were supposed to be off work that day, don’t think that you’ll just take it easy and see what happens. Call in, e-mail, walk-in, text, do whatever you need to do. 

Q. I did not have a specific injury. My medical condition just got worse over time due to my work activities before it finally got so bad I saw a doctor. Is this covered under Kentucky workers’ compensation?

Yes. Repetitive trauma injuries – where the job duties just wear you out over time – are covered. They have their own separate set of rules for when you need to report the injury and how long you have to file. When a doctor has diagnosed your condition and told you it was work-related, you should report it to your employer immediately and seek legal counsel.

Q. I was injured at work and now have some mental health issues because of it. Is this covered?

Yes. So long as the mental health issues were the result of some sort of physical injury then they are treated just like any other medical condition. The physical injury does not need to be severe or life threatening. It can even be minor in and of itself but it if caused you to develop mental health problems, then they are treated just like any other injury. Do not be afraid or embarrassed to ask your doctor about mental health treatment if you are having issues.

Q. I work in a loud job and I think I have hearing loss. Is that covered?

Yes. Workers’ compensation will cover hearing aids and other medical treatment as well as compensate you for any hearing loss impairment. There are special rules for hearing loss so if you think you have work-related hearing loss or a doctor has told you that you do, then you should obtain an attorney right away. 

Q. I slipped and fell in the parking lot when I was arriving to or leaving from work. Is this covered?

It could be and you should get a lawyer to make sure. It depends on who owned and maintained the parking lot or if the employer told you where to park. It could also be compensable under other circumstances. You may also have a personal injury claim separate from any potential workers’ compensation claim. You should get a lawyer immediately to evaluate the situation and make sure you pursue every available legal option.

Q. I was travelling to and from the job site when I was injured. Is this covered?

In general injuries that occur while you are travelling to and from work are not covered. This is called the “coming and going” rule. However, there are many exceptions to this. If you were travelling for the benefit of your employer when the injury occurred, then it could be compensable. If you had to travel for your job then that travel would not be “coming and going.” Do not take your employer’s word for it if they deny your claim if you were injured while travelling. Speak with a lawyer to get a fair evaluation of the facts and determine if your claim should be compensable. 

Q. I am an immigrant and not a citizen. Can you still get Kentucky workers’ compensation benefits?

Yes. Your immigrating status does not affect your entitlement to Kentucky workers’ compensation benefits. 

Q. I was injured on the job but someone else was at fault. Can I sue them in addition to getting workers’ compensation benefits?

Yes. There are many scenarios where this can happen but the most common is probably motor vehicle accidents. If you are injured on the job by another driver, you can sue that driver as well as seek workers’ compensation benefits. The workers’ compensation insurance company may be entitled to some portion of your recovery against the other driver through what is called subrogation, but generally speaking filing a lawsuit will not affect your entitlement to workers’ compensation benefits. 

Pro Tip: I’ve seen a lot of situations where an injured worker gets an attorney to file the lawsuit against the other driver and then doesn’t actively pursue the workers’ compensation claim at all. Either their personal injury attorney does not do workers’ compensation or just doesn’t think it’s worth pursuing. You should absolutely pursue both claims for many reasons. You can have separate lawyers represent you for each separate claim. If your attorney is only handling the personal injury claim and not the workers’ compensation claim, or vice versa, it’s okay to obtain separate counsel. Don’t leave anything on the table. You will almost certainly get more overall by pursuing both claims.

Q. If I hire you as my lawyer can you give me any guarantees about the outcome?

No. No lawyer can. I won’t take a case that I don’t think has merit to begin with, and I will certainly do my best for you, but I can never say for certain what will happen. Over the past fifteen years I’ve lost cases I should absolutely have won and won cases I probably should have lost. Every lawyer probably can say the same thing. What I can do is as the case gets closer to the end, I can say this is your “best day” if we win, this is your “worst day” if we lose, and point to the position in between that I think is the most likely outcome, and what I think a fair settlement would be. It will then be YOUR decision whether to settle or see it through. You can take my advice or disregard my advice. I work for you. Keep in mind that I do not get paid unless you get paid. I will often make a significant financial investment in your case to see it through that I cannot recover if we lose. Also, I just flat out hate losing. But there’s no such thing as a sure thing in this business. 

Q. What if I was injured in another state? Or I was injured in Kentucky but don’t live here? 

Can I still receive Kentucky workers’ compensation benefits?

If you were injured in another state, then you can still seek Kentucky workers’ compensation benefits depending on the circumstances. You need to speak to a lawyer about your unique situation, but the common scenario would be you live in Kentucky, work for a Kentucky company, but then travel to other states for work. If you are injured in Indiana or Ohio, then you are still entitled to Kentucky workers’ compensation benefits.  

If you are injured in Kentucky while passing through, then you can seek Kentucky workers’ compensation benefits regardless of where you live. 

You may also be able to seek workers’ compensation benefits in other states and then still receive Kentucky workers’ compensation benefits as well if there is any difference in what you might be entitled to in the other state versus Kentucky. 

Pro Tip: Every state has different workers’ compensation laws. Some states are much more generous than others. The insurance company may accept your claim as compensable but under another state’s laws and thus pay you less benefits than you might receive it was considered a Kentucky claim. This is a perfect example of the insurance companies acting like they are doing you a favor when they are really paying you significantly less than you might have been entitled to. If you might have claims in multiple states, you need to speak with a lawyer to make sure you file in the state that is best for you and maximizes your entitlement to benefits. 

Q. How much is my workers’ compensation claim worth for settlement?

Everyone is interested in this from the beginning. Oftentimes my clients will say, “Come on you have to have some idea.” The short answer: I have no idea until I dohave an idea. 

Every case is different with its own variables that must be filled in before I have any clude. Was your case accepted as compensable? What type of injury did you have? How long were you off work? What is your average weekly wage? Did you have concurrent employment? Was there a safety violation? What is my expert’s impairment rating? What is their expert’s impairment rating? Can you go back to your old job? Are you working elsewhere at same or greater wages? How old are you? Did they pay everything correctly? Will you need ongoing medical treatment or are you comfortable waiving medicals? Those variables will start to get filled in over time, and sometimes I can make reasonable estimates, but until we have the full picture, I have no idea. Even then it is usually a range between the “best day” and “worst day.” 

Pro Tip: If the insurance company made you a settlement offer but you can’t answer any of those questions in the preceding paragraph – and there are so many more questions even than those - then you have no idea whether that settlement offer is good, bad, or just plain ugly. You need a lawyer. 

Q. I have worked in a certain job type my whole life and now as a result of my injury I cannot go back to it. What can I do?

You may be entitled to vocational retraining benefits that would allow you to go into a different field. If you have been in a physically demanding field your whole life and are not sure what to do now, this could give you a new start. This isn’t something the insurance companies are going to volunteer, cause they have to pay for it, so you should speak with a lawyer. 

Q. I have open medicals from an ALJ decision or settlement agreement but now the insurance company is denying my treatment? Can they do this?

The insurance companies can file a medical fee dispute to contest treatment as not reasonable or necessary or not causally work-related. They often do this through a process called utilization review where a doctor, after only reviewing one or two of the treatment records, and without examining you, decides that the treatment is not reasonable or necessary. This can be in cases where you’ve been having the treatment or medication for years. If they file a medical fee dispute the burden is on them to show the judge that the treatment is not reasonable. You should obtain counsel quickly to respond to this medical fee dispute.