The claims process should start immediately after an accident occurs at work. The following is a rudimentary roadmap of a claimant’s usual journey through the workers’ compensation system:
It is sometimes uncomfortable for employees to report a work accident. They may be fearful of being reprimanded for failing to follow safety protocol, or they may not want to be viewed as a “complainer.” Get over it! You must report the accident to your supervisor or risk being left with no job and no benefits.
It is standard protocol in many companies to require the completion of a written incident report following a work accident. You should complete this report with as much detail as possible, writing down every body part which was impacted by the accident.
If you work for a small company which does not prepare accident reports, write a letter, memo, or email your supervisor about the accident. Create a diary regarding the accident, your injuries, any conversations you had about the incident, as well as your medical treatment.
Injured workers must place employers on notice of an accident within 90 days. The notice may be informal and need not even be in writing. However, if your employer fails to obtain a claim number from a workers’ compensation carrier within the first month following an accident, it would be wise to formally place the employer on notice of the accident. Obtaining the employer’s accident report is sufficient to prove notice, as well as an emailed response from a supervisor acknowledging the incident.
You should ask your employer where to schedule an appointment for medical treatment. If you need emergent medical treatment, go straight to the local hospital emergency room. If your employer thereafter fails to give you any direction, then you may see the doctor of your choice, and obtain a copy of the doctor’s notes regarding your injury before leaving the physician’s office.
After your employer reports the injury to the workers’ compensation carrier, the carrier should provide you with a claim number and authorize a doctor. If your employer fails to report the injury, then you should schedule an appointment with a workers’ compensation attorney.
Your attorney may report the injury directly to the insurance carrier if your employer fails to do so. The name of the insurance carrier should be posted in a common area at work, such as a lunchroom, copy room, or supply room. Every insured employer’s workers’ compensation carrier is supposed to also be listed online at the website for the New Jersey Compensation, Ratings, and Inspections Bureau, at www.njcrib.com.
If your employer is uninsured, your attorney should file a Motion to Join the Uninsured Employers’ Fund (“UEF”). Unfortunately, the UEF only pays medical and temporary disability benefits. It does not pay any permanent disability benefits. The process of obtaining benefits from the UEF is often long and arduous.
You may see your own doctor to document your injuries and to obtain a treatment recommendation until the insurance carrier directs you to a particular physician. If you are forced to make an appointment with your family doctor, it’s preferable to ask the doctor refer you to a specialist for treatment of the work-related injuries. You should advise the doctor that the injury is work related, but provide your health insurance as “secondary coverage,” if you have it.
Some physicians will actually refuse to provide treatment for work injuries, fearing that their bill will not be paid by health insurance on that basis. However, health insurance may always be utilized as secondary coverage. Accordingly, if your doctor refuses to provide you with at least an initial evaluation, find another doctor!
You should receive a letter, or at least a phone call, from a claims adjuster, who is a representative of the workers’ compensation insurance carrier. The adjuster may request a statement from you regarding the accident, which you should supply, while keeping your answers short and to the point. Remember that the claims adjuster wields a great deal of power over the medical treatment and benefits you receive, so it is important to treat her respectfully. If the carrier has not yet directed you to a doctor, tell the claims adjuster that you will see your own doctor until she authorizes a workers’ compensation physician. If you are unable to work because of the injuries, you should also ask her when she will be sending you a check for temporary disability benefits.
Unfortunately, some physicians who regularly treat injured workers forget that their first obligation is to their patient, and not the workers’ compensation insurance carrier. These unscrupulous physicians may care more about pleasing the insurance carrier in order to maintain their referral relationship than they do about your individual care. You should be mindful of that possible bias when you speak with the doctor.
During the first visit with the workers’ compensation physician, it is critical to discuss every part of your body which was injured in the accident. It is common for the insurance carrier to limit treatment authorization to a specific body part (i.e.: your right arm). If so, the doctor may completely ignore any other complaint. Do not let that happen! Ask the doctor to confirm that he is able to treat every area of the body which was injured. If she advises you that she is only authorized to treat your right arm, ask her to at least make a note that you are also experiencing pain in another body part (i.e.: your neck). If you feel that you are physically unable to work due to your injuries, you should also ask the doctor for an “out of work” note to provide your employer.
If possible, request a copy of the doctor’s notes before leaving each and every medical appointment. It is common for workers’ compensation physicians to instruct employees that their records will be forwarded directly to the insurance carrier. However, New Jersey law provides that patients may obtain a copy of all medical records. Do not be shy about reminding the doctor’s office that their policy is incorrect. Review the office notes immediately to make sure they are accurate and reflect a history of the work accident. If the office notes contain any errors or omissions, bring them to the doctor’s attention right away, and ask him to issue a correction.
If the workers’ compensation physician takes you out of work, then you are entitled to receive temporary disability benefits of up to 70 percent of your average weekly wage, until the time you’re released to return to work, or have been released from active medical treatment.
Once you have been released from authorized medical treatment, your temporary disability benefits will stop, even if you have not been released to return to the same line of work, or if your position is no longer available with the same employer. If you disagree with the assessment of the workers’ compensation physician you should seek a second opinion with another doctor. The second opinion doctor’s note may be utilized as a basis to obtain more treatment and temporary disability benefits. If you are unable to return to the same job and there is no physician indicating that you need more medical treatment, then you should then apply for unemployment benefits, while searching for alternate employment.
In order to preserve your right to receive additional benefits, a Claim Petition must be filed with the Division of Workers’ Compensation within two years of the date you were last paid workers’ compensation benefits, including medical treatment authorized through the workers’ compensation insurance carrier. If no treatment or temporary disability benefits were paid by workers’ compensation, the deadline is two years from the date of the accident.
It should be noted that the fact that an employer condoned or even encouraged you to obtain medical treatment after an accident does not mean that the treatment was authorized through workers’ compensation. If the medical treatment was paid through health insurance, that treatment generally cannot be used as a basis to extend the two-year statute of limitations. The rare exception to this rule is if the employer purposely directed you to utilize health insurance rather than workers’ compensation. In such a situation, your attorney may argue that the two-year deadline does begin to run until medical treatment for the injury ended.
Figuring out the deadline for filing occupational claims is more difficult. The general rule is that a Claim Petition must be filed within two years of the date the employee knew or should have known that the injuries occurred as a result of the employment. If there is a question about whether the injury is causally related to your occupation, the safest course of action is to file a Claim Petition within two years of the last date of employment. If the symptoms arose years after the employment ended, the medical records will be critically important in determining whether the Claim Petition was filed on a timely basis. New Jersey Courts have held that the two-year deadline begins when medical records reference the employment as a cause of the injuries.
Several months after you have been discharged from authorized medical treatment both your attorney and the insurance carrier will schedule you for evaluations with workers’ compensation medical experts who will estimate your degree of permanent disability related to the accident. The opinions of the two experts will vary widely and will set the stage for settlement of your claim.
Settlement negotiations may begin once you have been evaluated by experts for both the insurance carrier and your attorney, and both sets of reports have been received. If you are not satisfied with the insurance carrier’s settlement offer your attorney may request a conference with the Judge of Compensation. The Judge will review the expert rep0rts and provide a recommendation for settlement. If the parties agree to settle the claim consistent with the Judge’s recommendations, then you must appear at a Hearing to place the details of the settlement on the record.
If the parties are unable to reach an agreement regarding all aspects of the claim, the Court will schedule a Trial. At the Trial, the injured worker will testify, as well as the medical experts. Generally, the same Judge who evaluated the claim for settlement will preside over the Trial. There is no jury – only a Judge of Compensation will hear the evidence and issue a decision.
You may not reopen a claim for which you received a “lump sum” in exchange for a final dismissal of your case. However, if you received a judgment or entered into a settlement which includes the right to receive future medical treatment then you may reopen your claim within two years of the date you receive your last workers’ compensation benefits, including authorized medical treatment.
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