(Transcript)

Cindy Speaker:   Today, we’re going to talk about workers’ compensation law. First of all, why don’t you tell us what workers’ compensation law is?

Pat Pendleton:  Sure, so people always wonder, what exactly is workers’ comp? Workers’ comp is nothing more than just a compromise between the employer and the employee. Now, remember who wrote the act, it’s not the employees who wrote the act, it’s the employers and their lobbyist. But, it’s supposed to be a compromise where the employee, if they get hurt at work, will get medical treatment right away. In exchange for that, the employee cannot sue the employer for negligence. That’s a compromise that’s supposed to be there. The benefits will be limited to whatever has been injured to, but the compensation, you don’t get pain and suffering. You don’t get anything like you would in a normal negligence case.

What you get is, if you could work this many jobs before, well, what’s the impact of the injury now? How many jobs can you now work? We’re you at full duty before, and now you’re limited to light duty? Let’s compensate somebody for that difference. That’s what workers’ comp is in, I could go and explain a lot further, but basically, it is truly a compromise, between the employer and the employee.

Cindy Speaker: Okay, so it sounds like it’s kind of a contractual thing as opposed to, the employees not actually suing the employer. Is that correct?

Pat Pendleton: The employee can sue the employer in circuit court here in Alabama. But, the Act, the Workers’ Comp Act, kicks in automatically once an employee gets hurt at work. Once they get hurt at work, the medical benefits are supposed to begin right away.

Cindy Speaker: Okay.

Pat Pendleton: Yes, you’ll be in a regular circuit court, just like a regular lawsuit would be, and it’s a regular claim, and you’ll be, attorney will be representing somebody against another, against the employer, who’s represented by an attorney. It is a legal process.

Cindy Speaker:  Okay. What about the benefits? You mentioned that they cannot collect for pain and suffering, what can they collect for?

Pat Pendleton:  Okay, well typically, workers’ comp involves several benefits. The first one would be indemnity benefits. That simple is you’re injured, what are you supposed to be entitled to regarding the injury itself? Or, the loss of ability to work. How can we measure that? You’ll either permanently partially entitled to something, permanently totally entitled to something, or temporary benefits. That’s the first benefit and that’s money benefits. Then, that’s what we commonly refer to, what’s my case worth? Well, that’s the biggest part, is what are the money benefits? We call those indemnity benefits.

The second part, and probably truthfully, the most important part would be the medical benefits. Somebody gets hurt at work, what are they entitled to medically? That’s a really, often times more expensive benefit than anything else and more important for the injured employee. You also have the benefit of vocational rehab training, if an employees hurt and cannot do the job anymore, can’t go back to their career, well, can they be retrained to do something else? Those are the three main benefits in workers’ comp. You may hear people get them confused, “What am I entitled to? What’s my benefits?” But, all of those, are comps in the act, but each separately. When a claim occurs, if somebody wants to settle the case, each one of those is a separate benefit.

 

Cindy Speaker:  Now, what about medical treatment? Do I treat with my family doctor? How does that all work?

Pat Pendleton:  That’s a great question. The first thing an employee wants to do when they get hurt, is report it. Okay, you’ve got to report it to your supervisor. The reason I bring it up first, is because that’s your trigger, the employer to say, “Okay, you got hurt at work, I’m now going to choose the doctor that I think you ought to treat with.” That’s one of the rights the employer has. In that compromise that I talked about, the employer can pick the doctor. That’s an important part.

Now, you can also go to your own doctor, but guess who has to pay for that? You do. They’re going to give you medical treatment, with their own doctor. It typically starts out with an industrial doctor, if the injuries perceived to be more serious, it goes from orthopedic doctor, and those are mostly, we’re talking about orthopedic injuries. It can be neurologists and any other kind of doctor, but those should be paid for by the workers’ comp. Whatever is medically necessary and reasonable, employers must pay for it.

Now, you’re free to go to whatever doctor you want, but remember, you got to pay for that doctor. For most employees, insurance, especially nowadays, is quite expensive. Most employees don’t have insurance so going to a doctor, they have to rely upon the employer’s doctor. You get into, well, who’s paying the doctor and that always is a thought that somebody needs to remember. The treatment you get, should be the same but as we all know, many things can come into play. It may not be the same. To answer your question, the employer should provide you medical treatment, they will pay for whatever’s reasonable and necessary. You can go to whatever doctor you want, but you got to pay for that doctor.

Talked about the legal process before, when you have the medical treatment, what happens at court? What evidence comes in? Is it just their doctor? Whatever medical opinions are, what that doctor says, but can I also bring my doctor in? The answer is yes. You can bring it all in, the judge will consider it all. There’s some benefits sometimes of going to your own doctor.

Cindy Speaker: Okay. What about if the claim is denied? And, are there circumstances in the work environment where a claim would be denied? What are those circumstances?

Pat Pendleton:  Yeah, claims are denied all the time. It is to their benefit to deny claims quickly. But it’s also to their benefit to accept real claims, quickly as well, for that, can get that medical treatment under their own watch going. A claim can be denied at the very beginning, so you report it to your employer and they say, “Well, I don’t think you were hurt at work.” Okay. They report it up to the insurance company, and the insurance company sitting there and say, “I don’t think you were hurt at work.” They can deny it.

At that point in time, we know that they’re not going to give medical treatment. We know that you ought to go get your own medical treatment and then you can file that case in court and contest it and the judge will decide. Claims are often denied. It’s not so much as the entirety of the claim, as it is the different parts of the claim. It may be, well, I hurt my leg at work and now I’m limping a whole lot and so now my back is hurt. The employer, the insurance company may say, “Well, we’re going to accept the leg, but we’re not going to accept the back.”

Cindy Speaker:  Okay.

Pat Pendleton:  That point in time, again, we look at medical treatment. You can go get your own doctor if you wish. If it’s denied, you real recourse is to file the case in court. That’s your real recourse.

Cindy Speaker:  Yeah.

Pat Pendleton:  That make sense?

Cindy Speaker:  Yeah, that does make sense. What about if the accident happens to the employee because they made a mistake, or they engaged in horseplay, or something like that? In other words, if it was the employee’s fault in some capacity, does that change the claim?

Pat Pendleton:  Not necessarily.

Cindy Speaker:   Okay.

Pat Pendleton:  If it’s the employee’s fault, that’s okay. We’re not holding these employees up to a standard that is above a regular person. If they’re doing what they’re supposed to be doing, they get hurt, that’s fine. They’re still supposed to be covered. Now, there are defenses to that. One of the defenses are, sometimes an employee intentionally hurts themself, and that does happen. For whatever reason. Or, maybe did the employee not follow a safety rule, or not follow use a safety guard? We see these things a lot. That’s a typical defense. One of the best defenses out there and employees need to remember, is when you apply for a job with your employer, they will probably ask you questions about your preexisting health condition.

Cindy Speaker:  Okay.

Pat Pendleton:  The defense there is if they asked you specifically about a health condition and you did not answer truthfully, okay, if you don’t answer truthfully and that part of the body later comes up and that’s what the injured part is. Well, that’s a pretty good defense, that they probably would not have hired you, if you would have answered truthfully.

Cindy Speaker: Okay.

Pat Pendleton: That’s another defense. There’s a multitude of defenses but those are some of the main ones.

Cindy Speaker:  Gets complicated.

Pat Pendleton:  It does, it gets quite complicated. The employee needs to be truthful of everything, as does the employer.

Cindy Speaker:  Sure. Now, what about if the injury is so severe that the employee cannot return to work? Does he collect work comp for, how many years, or indefinitely?

Pat Pendleton:  Okay, so if the injured employee cannot return to work for a certain period of time and then later on returns to work, that is temporary total disability. In that instance, you look at the person’s average weekly wage, they’ll get two thirds of that for that period of time. Now, your question would be what happens if you just say, they cannot go back to work at all. I mean, for the rest of your life, they cannot return to work. Then it’ll be two thirds of their average weekly wage for the rest of their lives.

Cindy Speaker:  Wow.

Pat Pendleton:  That can go on indefinitely obviously.

Cindy Speaker: Okay.

Pat Pendleton:  That is a real argument between the employer and the employee, as to what is the most fair thing in the Workers’ Comp Act. That’s one thing that really favors an employee, because-

Cindy Speaker: Oh, good.

Pat Pendleton:  It is. It has, it’s going to pay you for the rest of your life.

Cindy Speaker:  Okay.

Pat Pendleton: Okay? What’s happening now is a lot of discussion that they’re going to try, the employers are trying to reduce that. Reduce that age, okay? But, that would be called permanent total disability, if you cannot return back to your typical career and that would be two thirds of your average weekly wage for the rest of your life.

 

Cindy Speaker:   It’s nice to see something favoring the employee.

Pat Pendleton:  True. You don’t see it a lot.

Cindy Speaker:  A lot of times these corporate situations, things don’t exactly favor the employee, so I think that’s good.

Pat Pendleton:  Absolutely.

Cindy Speaker:  But also, I imagine that without an advocate such as you, they may not always get that outright, or even know that that exists.

Pat Pendleton:  Absolutely. You really hit the point, that is for my profession, it’s really important, most Americans do not have savings that can go get whatever medical treatment they want. Most Americans cannot survive more than probably a couple months, if that, without income. Who has the upper hand in this situation? Well, certainly the employer, the insurance company, everybody knows that. Now, the Act itself, the Workers’ Comp Act itself, is intended and is supposed to be construed and applied in favor of the employee. Now, whether or not this always happens, that’s a discussion. But, that’s supposed to be in favor of the employee.

Cindy Speaker: Good. Well, Pat if someone has questions, I believe they can, you evidently collaborate with Gardberg Law and believe you guys are very close in proximity, your offices.

Pat Pendleton:  We are. I’m actually about two doors down from them.

Cindy Speaker:   Oh, fantastic.

Pat Pendleton:  If anyone has any questions about workers’ comp, feel free to call Gardberg at 251-343-1111 and then also at GardbergLaw.com. You can get in touch with them and eventually, that call may come to me. I’ll be happy to talk to you as well.

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