No good deed goes unpunished

Back in 1993, the Arkansas Legislature rewrote the law to say that an injured worker is eligible for workers' comp benefits only if the injury happened while she was "performing employment services." The intent at that time was to help employers avoid paying for injuries sustained while employees were on breaks. But since then, the insurance companies have fought to expand the reach of that restriction. One recent case that made the news is a good example of that trend.

According to press reports, Nigel Haskett was working at McDonald's when he was shot while trying to help a woman who was being attacked by an assailant. He suffered serious injuries, and his medical bills exceed $300,000. Reportedly, McDonald's insurance company has denied his workers' comp claim, because they say he violated company policy by intervening in a fight.

I have seen several cases in the last year where employers have tried to deny claims by saying the employee was injured because he violated some company policy or rule. The courts haven't bought this argument yet, but employers are still using it -- the reality is that most insurance companies will use any conceivable reason, no matter how ridiculous it may sound, to deny a claim. Mr. Haskett's case is just one more example of this unfortunate trend, and his case is also another example of why injured workers should always seek out an experienced workers' comp lawyer to discuss their case earlier rather than later.

Independent Contractors

Some employers try to avoid carrying workers' comp insurance by calling their employees "independent contractors". If you were hurt on the job but denied benefits because you were supposedly an "independent contractor", talk to a lawyer before you give up on your claim.

The reality is that in many cases, these employers are just scam artists -- they are cheating their employees out of legally-required benefits, and they are cheating the government by not paying their taxes. There are basically three ways these employers try to avoid their responsibilities:

• Some will require their employees to sign a written contract that says the employee is an independent contractor and not entitled to any benefits or tax withholding.
• Or, some will have their employees sign a waiver or other document that claims to waive the employee's right to workers' comp. 
• Especially in the construction industry, some will require the employee to get a "Certificate of Non-Coverage" from the Workers' Compensation Commission. 

The good news is that the law doesn't recognize any of these schemes. It doesn't matter if you signed a contract or a waiver, and it doesn't matter if you obtained a Certificate of Non-Coverage -- if you meet the law's definition of an "employee", you are entitled to benefits regardless of what the employer calls you. 

New WCC Chairman

Effective January 15, Governor Beebe appointed a new chairman of the Workers' Compensation Commission for a six-year term. A. Watson Bell, a Searcy lawyer, replaced former Chairman Butch Reeves. 

There are three members of the Commission -- Chairman Bell, Karen McKinney, and Philip Hood.  You can read their biographical information here. When a Judge decides a case and one side appeals, these three Commissioners decide the appeal. Commissioner McKinney is the "management" representative and usually votes in favor of the employers and insurance companies. Commissioner Hood is the "labor" representative and usually votes in favor of the employees. Since their votes usually split, almost every case is decided by the Chairman alone. 

The Key to Winning your Social Security Case

I've talked with several potential clients this month about Social Security Disability, and all of them had the same problem -- they haven't been seeing a doctor regularly for their illnesses. 

For most people who can't work because of a disabling medical condition, money is always tight and paying to see a doctor is not always an option. But it is very hard to win a disability case when there is not a record of medical treatment proving you actually have a serious medical condition. 

Medicaid is one option for getting medical treatment. Contact your local DHS office to apply. Another option is a free medical clinic -- this map shows some of the free clinics available in Arkansas. 

Objective Proof for Workers' Comp

There was a good workers' comp decision from the Arkansas Court of Appeals today that could help quite a few injured workers in the future. In order to win benefits for a work injury, you have to show objective evidence that proves the existence of the injury -- an x-ray, for example, or a doctor's observation of swelling or spasms. 

Sometimes doctors will say they observed a "contusion", which is usually defined as a bruise. The problem is that some doctors will diagnose a "contusion" even if they don't actually see anything. So, a few years back, the Workers' Compensation Commission started issuing decisions saying a mention of a "contusion" wasn't good enough evidence to prove a work injury to be legitimate. 

In the case of Ellis v. J.D. & Billy Hines Trucking, Inc., the Court of Appeals today ruled that when a doctor notes a "contusion", that observation should be assumed to be objective unless there is some specific reason to think it is not. This decision will make it easier for injured workers in the future to prove they have a legitimate work injury. 

Don't Wait to See a Doctor

The Arkansas Court of Appeals decided a case last week that shows just how important it is for injured workers to go to a doctor when they get hurt on the job, and to keep going to the doctor until they are fully healed.

The worker in this case fell on the job in November 2003. When he saw the company doctor a couple of days later, he told the doctor that his neck was hurting. But the doctor did not order an MRI or any other test that could verify a neck injury, and the worker did not go to a doctor for his neck again until two years later. It was only then he had an MRI that verified his neck injury. By that point, his neck was so bad he had to have surgery.

The Workers' Compensation Commission denied his claim because the MRI that proved he had a neck problem was not performed until two years after the fall, and because he took so long to seek medical treatment from a doctor for his neck injury. They denied the claim even though his surgeon specifically said the fall at work caused the neck injury. If this injured worker had gotten an MRI right after his injury and promptly gotten treatment for his neck, there is a good chance he would have won his claim.

The decision from the Court of Appeals can be read here in PDF format.

Should I Apply for Social Security Disability?

Yes.

How's that for a simple answer? But let me explain: Social Security usually takes several months to consider an application for disability benefits. The majority of applications are denied at that initial level, and appeals take months or years to process. BUT the majority of those applications that are denied and appealed eventually get approved, usually by an Administrative Law Judge.

If you cannot work because of an injury, and it looks like you could be off work for as long as a year, go ahead and apply so that you can get your application in the pipeline. The longer you wait to apply, the longer you will have to wait for your application to be approved. And if things change and you are able to go back to work, you can always cancel the application.

One other thing to keep in mind -- even if you do eventually go back to work, you could still be eligible for disability benefits if you were off work for at least one year. We call this a "closed period" of disability. For example: suppose that a truck driver is off work for two years because of a back injury. He has a couple of surgeries and a long recovery, but he eventually returns to his old job making the same money he did before his injury. If he applied for Social Security Disability at any time in that first year he is off work, he could be eligible for 19 months of disability benefits even though he went back to work. For many people, this could be worth $15,000 or more.

There are two time limits to keep in mind: first, when you apply, you can ask for back benefits for up to one year before your application date. So, if the trucker from the example waited and applied at the end of his two-years off, he would only be eligible for the last 12 months of his disability. This is why I always tell people to apply as soon as they stop working.

Second, from the moment you stop working, there is a five-month waiting period before you can start receiving benefits. This is why the trucker who is off two years could only receive 19 months of benefits. However, if you have limited resources, you might be eligible for SSI benefits during those five months.

You can apply online at www.ssa.gov. You can also apply by calling or visiting your local Social Security office, or by calling SSA's national toll-free number at (800) 772-1213.