Anatomy of a Workers’ Compensation Claim Part II

Part II. The Denial of benefits

  1. A. Now what?

First, do not panic. Insurers will deny an injured employee’s claims for workers compensation benefits for a variety of reasons, some more valid than others. Second, do not give up. If you were legitimately hurt at work or your work activities substantially contributed to your injury, there are ways to get your workers compensation benefits paid even when the insurer denies your claim. Third, I am sure everyone has a brother or uncle with a friend who knew a guy that knew a guy who had a workers compensation claim and I am sure that person is extremely well-intentioned, but please get

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at least two opinions before you choose a course of action. The workers compensation statute changes frequently and often dramatically, so not

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every person has current knowledge and no two claims are exactly the same.

Fourth, please talk to someone who understands the system. You can call the department of labor and industry but I do not believe they give consistent information and I also do not believe they give real-world answers. They may tell you what SHOULD happen or how things should work, but often times they do not work that way. You will get better, more realistic and practical advice if you talk to a lawyer. I would recommend talking to someone who

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has handled thousands of workers compensation claims and seen a variety of injuries and defenses. If you wish to handle your own claim, then I hope the outline below will provide you some practical help for how to go about it and get a successful result.

  1. B. Proper Procedure

After a First Report of Injury is filed the insurer must issue a response. That response is called a Notice of Primary Liability Determination (NOPLD). If it says something like “primary liability is denied”, then you must file a Claim Petition to initiate a claim for workers compensation benefits. This indicates the insurer is alleging your work incident or activities played no substantial role in the injury you sustained or condition you developed. By filing the Claim Petition you are advising the court that you believe your work did play a substantial role in bringing about your injury. In order to file a Claim Petition you MUST attach a medical report of some kind and you MUST send the original to the Department of Labor and Industry and send a copy to your employer, their insurer and keep one for yourself.

Ultimately you will need medical support from a licensed medical professional in order to establish your claim. The court requires specific language in the records or report in order to accept a doctor’s opinion on this issue. Specifically, the doctor must state his/her opinion “to a

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reasonable degree of medical certainty” that the work incident, accident or activities played a “substantial role” in bringing about the condition or need for treatment. In order for that opinion to be persuasive the doctor must have “foundation”. Foundation consists of more than just information about the incident or an injured employee’s work activities but also all past relevant medical history, diagnostic studies, injuries and conditions that an injured employee may have sustained or received before the injury for which they are currently making a claim.

The filing of a Claim Petition will lead to an “Answer” from the insurer where they will again explain the basis for the denial of the injury. They will then also usually want to take a “deposition” (a sworn statement under oath) of the injured employee and schedule the injured employee to see an “IME” or independent medical doctor. There is usually very little independence about these doctors. If your claim requires the filing of a Claim Petition, I strongly urge you to contact a lawyer to help you. The deposition and defense will be conducted by a lawyer and it makes sense to have a lawyer there to prepare you and to prevent any improper questions. A lawyer can also help you get the medical reports you need to win your claim for workers compensation benefits. From the time of filing a Claim Petition until a resolution of the issues addressed by that Claim Petition is approximately 8- 12 months depending upon the lawyers, judges and complexity of your case.

If the insurer accepts liability for an injury but denies certain medical treatment, then the injured employee can file a Medical Request. This is a less complex form and is designed to get an injured employee in front a decision maker

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quickly. This pleading is also handled by the Department of Labor and Industry and the same service procedure applies to a Medical Request as a Claim Petition. You must file the original with DLI and copy the employer and insurer. You can expect a hearing date within 2 months of filing the Medical Request. On occasion the department employees can resolve the issue by contacting the insurer and inquiring why a certain bill or procedure is being denied. If the insurer will then agree to pay for it, then there is nothing more to do. If they refuse then the Department will “Certify” the dispute and a hearing will be scheduled. At this point, if you do not already, I would strongly encourage getting a lawyer to help with the pending hearing. He/she can make sure they have the proper medical support and that the opinions have the proper foundation and your probability of success will increase dramatically. If the issue is purely medical then the layer can bill the insurer for the time they spent and you will incur no out of pocket expenses. This is called a “Roraff” attorney fee and you should inquire of any lawyer you talk to about how it works.

Workers compensation claims can be procedurally complex. If you have a potential claim and need help or have questions, do not hesitate to ask an experienced professional. You can file these claims on your own and represent yourself or you can retain a lawyer. In either case, I hope this simple guide will be beneficial to you.

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