Legal Frequently Asked Questions (FAQs): Get Your Injury, Accident, And Insurance Questions Answered By Attorneys Who Know The Law
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So, the workers’ compensation adjuster told me that I am no longer going to get my weekly benefits because she says I am “at MMI.” What does that mean? And is she right?
“MMI” is shorthand for the term “maximum medical improvement.” In 2017, that term was specifically defined in Setion 287.020 RSMO as follows: “For the purposes of this chapter, “maximum medical improvement” shall mean the point at which the injured employee’s medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty.” In other words, when the doctor says no further care will improve your condition, you are at “MMI.” In 2017, the workers’ compensation law was amended to state clearly that TTD or TPD benefits shall be paid throughout the rehabilitative process 287.149.1 RSMo.
The adjuster is right. If you have reached MMI and no further care will help you, they can terminate those weekly benefits, even if you don’t go back to work right away. Of course, you are still entitled to receive compensation at the conclusion of your case for permanent partial or permanent total disability, but that could be many months after your temporary total (weekly) disability benefits end.
If you disagree with the doctor that you are at “MMI,” you will need to get an opinion from a different doctor contradicting that opinion and seek a hardship hearing if you want to contest that determination.
I was hurt two months ago and just reported the accident. The work comp carrier said they are denying my claim, as I didn't give notice within 30 days of the injury. Is that really true?
Missouri's Workers' Compensation Law does contain a notice requirement. Section 287.420 RSMo. states:
"No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice. No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice."
So, the lack of written notice within 30 days can be a defense to any claim. However, a claimant can defeat this defense if he or she can prove that the employer was not prejudiced by lack of written notice. First, if the claimant can prove that the employer had "actual knowledge" of the injury, there is no need for written notice, because the employer could not have been prejudiced. Aramark v. Faulkner, 408 S.W.3d 271, 275 (Mo. App. ED 2013). Second, if the employer does not admit actual knowledge or the claimant doesn’t prove actual knowledge of the injury, the claimant must produce evidence of lack of prejudice." Id.
Lack of prejudice is determined on a case-by-case basis. “The purpose of the notice requirement is (1) to enable the employer to minimize the injury by providing medical diagnosis and treatment, and (2) to facilitate a timely investigation of the facts surrounding the injury.” Hannick v. Kelly Temporary Servs., 855 S.W.2d 497, 499 (Mo.Ct. App. 1993), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).
I am working light duty while recovering from my work injury, and my employer is paying me $10.00 per hour instead of my regular $20.00 per hour. Can they do that?
Yes, they can, but you are owed temporary partial disability benefits, or TPD benefits. TPD benefits are paid if the employee is able to perform some work during the rehabilitation period. These benefits are typically paid if the employee is released to light duty while still receiving medical treatment, and the employer provides light duty work, but at a lower rate of pay. The worker can be paid benefits equal to 2/3 of the difference between the average earnings prior to the accident and the amount which the employee is able to earn during the disability.
For instance, if the employee's pre-injury pay was $800 per week, but the employer is only paying the employee $400 per week while the employee does light duty work, the employer/work comp insurer owes the employee the following: $800 - $400 = $400 week difference. 2/3 of $400 = $266.67. Therefore, temporary partial disability benefits should be paid in the amount of $266.67.
Do All Missouri Employers Have to Carry Workers' Compensation Insurance?
Not all employers have to carry workers' compensation insurance in Missouri. If a company has less than five employees total, that employer does not have to carry workers' compensation insurance. There is an exception to this rule for certain construction contractors, who must buy workers' compensation insurance even if they have only one employee. However, an employer with less than five employees can still elect to be covered under the Missouri Workers' Compensation law by purchasing insurance. Many small employers want to do this, even though it is not required, because purchasing workers' compensation insurance prevents the employer from being subject to getting sued in state court if their employees become injured on the job. Employees who work for covered employers can only bring an action against their employer for their injuries in the workers' compensation tribunal.
I received weekly workers' comp benefits last year, but did not get a W-2 or 1099. Do I have to pay taxes on those benefits?
No. Workers' compensation benefits are generally not taxable. You should always seek the services of an accountant or tax advisor if you ever have a question about the taxability of any income you received in a given year. Here is further information from the IRS: http://www.irs.gov/publications/p525/ar02.html#en_US_2014_publink1000229331
My employer is making me take vacation time to go to a medical evaluation with their chosen work comp doctor. That doesn't seem right. Can they do that?
Unfortunately, that is true. Under Section 287.140.14 RSMo., the employer may require an employee to use accrued vacation or sick time to attend medical appointments, physical rehabilitation or medical evaluations during regular work time--even if they are scheduled by the employer or its workers' compensation carrier. This does not apply to medical treatment you receive when you are out of work and receiving temporary total disability benefits. It only applies to appointments that are scheduled when you are back to work after an injury.
I am out of work and don't have the money to hire a workers' compensation lawyer in Missouri. What should I do?
No worries. In Missouri, lawyers are only allowed to charge you on a contingent fee basis. They can charge up to 25% of the amounts they recover on your behalf. If you have received a settlement offer in writing before you hire a lawyer, the lawyer is then limited to a fee of 25% of only the amount that exceeds the offer. Here is an example:
If you hired a lawyer early on in the process of your case (ie. when you are still receiving medical treatment), and the lawyer eventually got your case settled for $10,000, then the lawyers' fee would be $2,500 (25% of $10,000).
If, on the other hand, you decided to hire a laywer because you thought that the settlement offer the insurance company sent to you in writing of $5,000 is unfair, and that lawyer gets you another $5000 for a total of $10,000, then you only pay a fee of $1,250 (25% of the extra $5000 your lawyer obtained for you above what you were already offered).
We at Bollwerk & Tatlow offer a free initial consultation to determine whether we can help you and to let you decide if we are the attorneys who are right for you.
I was hurt at work and the doctor says I cannot work right now. My employer is fighting the workers compensation case and so I am not being paid for my time off work right now. I need money! Can I file for unemployment?
Filing for unemployment can be a bad idea if you are off work due to a work-related injury. First of all, in order to apply for unemployment, you have to certify to the unemployment folks that you are ready, willing and able to work, which is not true if a doctor has ordered you off work. This can truly affect your credibility at the hearing of your workers' compensation case.
Second, Missouri Workers Compensation law states that an injured worker is disqualified from receiving temporary total disability benefits during any period of time "in which the claimant applies and receives unemployment compensation." Section 287.170.3 RSMo. This means that if the employer eventually accepts your claim, or if you win your claim at hearing, you will not be able to collect temporary total disability benefits during the weeks you also received unemployment benefits. At the time of this writing (9/20/14), Missouri's maximum unemployment benefit is $320.00 per week. On the other hand, the maximum weekly temporary total disability benefit is 2/3 of your average weekly wage,up to a state maximum $861.04. You should find out what your weekly unemployment benefit would be versus what your weekly workers' compensation benefit would be before you decide to disqualify yourself from receiving temporary total disability benefits by applying for unemployment.
I was injured in an auto accident and I am on Medicare. Who should be paying my hospital bills?
When you are injured in an accident in Missouri, it can be difficult to figure out where to have your medical bills sent. If you are on Medicare, it can be even more difficult, because Medicare is not supposed to pay for anything that is the responsibility of another carrier. However, an automobile liability insurance carrier for the at-fault driver is not going to pay your hospital bill for you, and they won't give you any money at all to pay that bill until you are ready to settle your case. That could take months--even years. Most hospitals are not willing to wait long periods of time to get paid, and you should not have your credit ruined as a result of an unpaid hospital bill. In this circumstance, Medicare will make a "conditional payment" on that hospital bill if the auto insurer will not pay promptly. A conditional payment is just that--it is a payment conditioned on the fact that Medicare be repaid for the payment at the time your case is resolved . For instance, if Medicare paid $5000 on your hospital bill, they will have a right to be repaid that $5000 when your case resolves. So if you are hospitalized after an accident, you should still give the hospital your Medicare card so that they can bill Medicare if your case doesn't settle quickly.
I have been off work for four months for a back injury and now my employer tells me that they don't have to hold my job for me any longer because I used up all of my FMLA time. Is that right?
Unfortunately, that is not an untrue statement. The FMLA guarantees qualifying employees twelve weeks of unpaid medical leave each year. If an employee returns to work before the end of the 12-week period, the employee has the right to be restored to the same or equivalent position with equivalent pay and benefits. An employee may receive compensation while on FMLA leave either through using his or her sick time or vacation, or through workers' compensation payments. However, an absence due to a work injury that is covered by workers' compensation benefits may run conncurrently with FMLA leave. Therefore, if you are off work longer than 12 weeks for a work injury, your job may no longer be protected under the FMLA, even if you are out on workers' compensation leave. However, there may be other employment laws that may afford you protection, so consult a lawyer if you find yourself in this position.