Frequently Asked Questions About Personal Injury and Workers’ Compensation
- Page 2
Making good decisions now can save your family from financial devastation.
On average, Montanans spend over $1,200 for automobile insurance. Unfortunately, most people have little or no idea what they are buying and what they have purchased until they are in a hospital recovering from injuries from an automobile collision. Over the past twenty years at our office we have seen the consequences some people face when they try to save a few dollars on their automobile insurance. Decisions you make about automobile insurance coverage can have a devastating impact on your family.
Automobile insurance has its own language. As I explain in my guide, Abandoned on the Road, insurance is no little different than gambling. It is based on odds and probability. The government has felt that spreading risk through legalized gambling is so important that everyone must participate. Unfortunately, most people do not know that “splitting tens,” at the black jack table and refusing underinsured motorist coverage from your insurance agent are both very poor decisions.
Bodily injury insurance is what most people think of as liability coverage. Bodily injury coverage protects you and your family in the event you are involved in an automobile collision and are obligated to pay other people for costs associated with their physical injury. Although we do not like to think about it, automobile collisions can lead to serious injury or even death.
The mandatory minimum limits for bodily injury coverage in Montana are $25,000 per person and $50,000 per collision. These mandatory minimum amounts of coverage have remained the same for decades in Montana and do not begin to reflect the costs of medical treatment today. A single day in the Intensive Care Unit runs over $10,000. If you or someone in your family is in a collision with this minimum amount of coverage, you could end up financially ruined without sufficient coverage.
A good rule of thumb to determine an appropriate amount of coverage is doubling the amount of total assets you and your family currently possess. This is the gross amount of assets and does not consider how much you may owe on those assets. Even a “broke” college student is going to see that the assets they possess exceed $25,000. For this reason, I recommend that the absolute minimum amount of coverage a person should purchase is $50,000 per person and $100,000 per collision. Any homeowner should have at least $100,000 /$300,000 in bodily injury coverage to keep from losing his or her home.
About four years ago, I represented a young man who was riding his motorcycle when he was struck by a woman on her way to church. My client’s medical bills far exceeded the $100,000 insurance policy limit this woman had at the time of the collision. This woman owned multiple rental homes and her net worth was well over $1,000,000. For some inexplicable reason, she did not have an umbrella policy or enough automobile insurance to protect her $1,000,000 in assets. Because my client’s medical bills exceeded the insurance policy limits, we had no choice but to make a claim that exceeded her insurance policy limits. In other words, she placed her assets in jeopardy because she wanted to save a few dollars on insurance coverage. She literally stepped over a dollar to pick up a dime and it cost her.
Protecting your family with two questions.
In order to protect your family, there are two critical questions you must ask your insurance agent. You and your family have worked hard to build a life. Asking these two very important questions of your insurance agent is one way to protect your future.
1. How much will an umbrella insurance policy cost?
One way to protect your assets is to purchase an umbrella insurance policy. An umbrella insurance policy provides an additional layer of security to people who own real property or have other assets that must be protected. An umbrella policy provides more protection (i.e. higher insurance limits) than many automobile insurance carriers are willing to provide for in traditional automobile insurance coverage. If you have been successful enough to have significant assets, you should be wise enough to purchase an umbrella insurance policy to protect those assets. Getting a quote cannot hurt.
2. Is my uninsured motorist coverage as much as my bodily injury coverage?
Uninsured motorist coverage protects you and your family in the event you are injured by the negligence of a driver who does not have motor vehicle insurance. About one out of ten motorists in Montana do not carry automobile insurance coverage at all. For some inexplicable reason, insurance companies offer uninsured motorist coverage that does not have a limit as high as the bodily injury coverage for the insured. Here is what that means:
The insurance company protects other people more than they protect their own insured from uninsured motorists. That makes absolutely no sense. To fulfill your responsibility to your own family, and for a few extra dollars every year, you must protect your own family with insurance limits that are equal to the amount of insurance coverage you have provided to other people.
For some inexplicable reason, insurance agents are not adamant about getting their clients on board for an umbrella policy and ensuring that uninsured motorist coverage is at least as much as bodily injury coverage. Chances are you have made many wise decisions in the process of gaining assets over the years. Purchasing sufficient insurance coverage is another wise decision that you must consider. Asking your insurance agent the above questions is a must.
Protect Yourself From Nosy Insurance Companies.
In the 20 years I have represented people in Bozeman, Montana, with workers compensation claims and personal injury claims, I have been amazed at the lengths with which insurance companies will go to try to drum up a fraud claim. Insurance adjusters are trained to believe that one in four claims made is fraudulent. There is absolutely no evidence to back up this statistic but brainwashing adjusters, especially the younger adjusters we see today is a good business practice. The use of social media has made the job drumming up bogus fraud claims easier for insurance adjusters.
When an insurance company receives your claim, the first thing they do is find your social media accounts. If you have a Twitter account or a Facebook page, your accounts will be found. If you are shown on the beach drinking beer, they will know. If you post images of yourself out hiking or having fun with friends after your injury, they will be used against you. I’ve had two jury trials recently where defense counsel introduced photographs of my clients from Facebook. The defense can introduce these into evidence without telling me or my client that they possess the photos in the first place. Shutting down your social media is absolutely critical and must be done immediately after an automobile collision because the information contained in your social media can and will be manipulated.
It is critical that you not discuss your case on social media. Contrary to popular belief, you have not won the litigation lottery. Your friends and families may believe otherwise. It is critical to keep the fact that you are involved in an insurance claim to yourself. Family members and friends may come to you with their hands out. To protect yourself, it is imperative to keep the status of your case to yourself and, should you receive any money, keep that information private. Anything you say about your case on social media will be manipulated and used to make you look bad.
In complete contrast to having won the litigation lottery, it is likely you will not receive a financial windfall. The money you receive will likely be sent to other people in the form of payment for future medical treatment and other costs. Shutting down your social media is an absolute must. You can still stay in touch with friends and family without posting on Facebook or Instagram. At our office, we insist on, at a minimum, placing your Facebook settings at their highest privacy level to keep the insurance company’s eyes out of your private life.
Medicaid recipients, hold on to your hat before the hospital steals it too.
As I have said before, the days of the sisters of charity healing the sick and comforting the dying are gone. Hospitals are big business in the United States in 2018. The way they treat Medicaid recipients is one indication of just how bad things have gotten. Below I discuss two ways hospitals are adding insult to injury for folks who live near the poverty line.
1. Hospitals practice “balance billing.”
Balance billing occurs when a hospital or other health care provider receives money from Medicare or Medicaid and then attempts to bill you or your family for the difference. In other words, the health care provider wants to “have its cake and eat it too.” The practice is illegal but that does not stop some health care providers.
Although health care providers cannot practice balance billing, they can forego payment from Medicaid either until the automobile claim is resolved or one year passes. If they do not make a claim within the one year (364-day) time period, their Medicaid claim will turn into a pumpkin and be lost forever. This is a risk most health care providers are not willing to take. Even if your claim does settle before the one year and the health insurance provider stand there with its liver-spotted hand out, you can still negotiate a final settlement on the bill.
2. They refuse to accept your Medicare or Medicaid.
Many types of treatment are simply not covered by either Medicare or Medicaid. For example, chiropractic care and acupuncture are not considered “traditional” medical treatment and Medicare and Medicaid do not usually cover this type of treatment. Unfortunately, these governmental health care programs would rather pay for opioids to treat your symptoms.
If your health care provider refuses to submit your bill to Medicaid, they are assuming the risk that your claim will be successful and you will receive funds. However, as explained above, you are free to negotiate your bill with that health care provider. Not only are health care providers generally risk adverse, they often do not do as well negotiating with me as they do by just accepting payment from Medicaid.
I generally insist on the health care provider taking a reduction for attorney fees and costs that are commensurate with the amount they are billing. In addition, I reduce the amount owed by a percentage of funds that will need to be paid for future care. After including these factors, the health care provider typically receives less than the amount available by Medicaid.
Seriously injured workers and their families may need domiciliary care benefits.
Workers whose injuries are so serious that they require 24-hour care may receive that care from a family member. Profoundly injured workers tend to be much happier and healthier when they live at home rather than in an assisted living facility. However, there is a big toll on the family that takes on the care of a profoundly injured person.
A family member who takes on 24-hour a day care of a claimant can be compensated for 8 of the 24 hours of care. This eight hours of compensation is paid 365 days per year, and there is no compensation for overtime. The Department of Labor and Industry (DLI) provides a maximum amount of compensation that an individual providing domiciliary care may receive. The amount varies depending upon the part of Montana where the care is provided. Section 39-71-1107, MCA, does not provide for respite care for the home care provider. This means that if the family member would like a break from taking care of this person, he or she is required to pay for that assistance or find someone else willing to help.
Domiciliary care claims can run into the hundreds of thousands of dollars. Because so much money is at stake, insurance companies are willing to hire private investigators and subject the claimant to multiple independent medical evaluations throughout the process. If a claimant may require domiciliary care, that claimant will almost certainly be subjected to surveillance by a private investigator. This is particularly true of claimants who suffer a traumatic brain injury because they may look completely fine, are often able to keep a daily routine, and can occasionally leave the house.
Insurance carriers, including the Montana State Fund will not suggest domiciliary care benefits even when it is apparent that they are needed. You must take it upon yourself to ask whether your injured family member can qualify for these benefits. If your family member is injured badly enough to require 24-hour per day care, you will most definitely need the help of an attorney to guide you through this very difficult process. Please call our office if you or your family member have suffered a brain injury or other serious problem that requires help to complete daily activities.
The Alphabet Soup that is Workers Compensation in Montana.
Workers’ Compensation, like many governmental programs, has a long list of acronyms. Below is a list of some of the most commonly used acronyms in the Workers’ Compensation system along with a brief informal definition of the term. The official definitions of these terms are located in the Workers’ Compensation Act. The Definitions section for the Workers’ Compensation Act is located in Section 39-71-116, MCA.
AWW: Average Weekly Wage, is determined by using the average of the four previous pay periods of the injured employee. The AWW is used to determine the Temporary Total Disability Rate as well as the Permanent Partial Disability rate.
COLA: Cost of Living Adjustment, is an inflationary based increase in benefits to workers who are entitled to Permanent Total Disability benefits.
DLI: Department of Labor and Industry, is a department of Montana that has jurisdiction over the workers’ compensation system. In addition to the workers’ compensation system, the DLI has a number of other programs that focus on Montana’s workers.
ERD: Employment Relations Division, the ERD is a division of the Montana Department of Labor and Industry. If a claimant has a dispute with the insurance carrier, the ERD assigns a mediator to hear both sides of the dispute and issue findings. In addition, the ERD is responsible for processing the FROI described below and confirming whether an employer has workers’ compensation insurance coverage.
FROI: First Report of Injury, the FROI is the form employers submit to the insurer following a claim for benefits. The FROI must be signed by the injured worker (if possible) and its contents must be carefully reviewed by the claimant and any dispute noted prior to filing the FROI.
MMI: Maximum Medical Improvement, is the point at which additional medical treatment would not materially improve the injured worker’s medical condition.
MSA: Medicare Set-Aside, under federal law, Medicare is allowed to require reimbursement from workers’ compensation providers for payment of medical bills made by Medicare that have occurred and will likely occur in the future. An MSA is required whenever a workers’ compensation claimant is eligible (or will soon be eligible) for Medicare benefits related to the industrial injury. The MSA must be reviewed and approved by CMS (another federal government agency) before a settlement can be approved.
OD: Occupational Disease, is a physical condition that develops over more than a single work shift. An OD claim has a different statute of limitation than an injury claim.
PPD: Permanent Partial Disability, is covered under Section 39-703, MCA, and occurs when a claimant, although able to return to work, realizes a wage loss as a result of an industrial injury or occupational disease. The claimant must also have a physical impairment rating before being eligible for PPD benefits.
PTD: Permanent Total Disability, occurs after a claimant reaches MMI and is unable to return to any gainful employment. PTD designation allows a claimant to receive medical treatment for more than 60 months after the date of injury and allows the claimant to be eligible for Cost of Living Adjustments.
SOL: Statute of Limitations, the time in which a claimant is required to file a claim. A claimant who suffers from an industrial injury must report the injury to his employer within 30 days of the injury. A claimant who suffers from an occupational disease has one year to provide written notice to the employer, insurance carrier, or the DLI. In any event, written notice must be provided to the employer, the insurance carrier or the DLI within one year unless extenuating circumstances allow for a maximum of 24 months in any case.
SSDI: Social Security Disability Insurance, is a federal program that allows qualifying individuals to receive cash benefits if the individual is unable to return to gainful employment. SSDI is important in the workers’ compensation setting in Montana because insurance carriers in Montana are allowed to reduce the benefits they pay for TTD or PTD benefits if a claimant receives SSDI benefits.
TPD: Temporary Partial Disability, is used to supplement pay for workers who, although they returned to work, are not earning as much as they earned (AWW) at the time of injury.
TTD: Temporary Total Disability, occurs when a claimant, as the direct result of an industrial injury or occupational disease is temporarily unable to return to the position held at the time of injury. TTD designation continues until the claimant reaches MMI and it is determined that the claimant cannot return to any type of work.
UEF: Uninsured Employers Fund, is part of the DLI set up to provide workers’ compensation benefits for injured workers whose employers did not have workers’ compensation insurance coverage. The UEF is entitled to reimbursement from uninsured employers and also entitled to receipt of a penalty from that employer.
You never dreamed this would happen to you.
You never imagined you would be in this situation. You were injured at work and want answers. This book is a resource in an area of law few attorneys practice. I have practiced law for more than 20 years. I can say without hesitation that workers’ compensation law is the most misunderstood area in which I have worked. I hope you use our Comprehensive Guide to Workers Compensation Law in Montana as a reference source that helps you better understand where your claim is headed. It answers common questions I have been asked over the past 20 years. The different sections reflect the various statutes that apply to each question.
It is important to understand that workers’ compensation law in Montana is governed by statute and changes almost every legislative session. The law in place at the time a claimant is injured applies throughout his or her case. The law at the time our book was written will change, and it is important to find out if any changes impact your case. Please also understand that, as the law changes, it typically becomes less and less claimant-friendly. The Montana legislature regularly treats this program (and the workers who benefit from this program) like an inconvenience. Each session, new methods are dreamed up to cut benefits in an attempt to reduce workers’ compensation premiums. At this point, you do not need a lecture on how badly workers’ compensation has been gutted. If you have a free hour or two, I can go on and on about how rotten this system is and the shameful treatment injured workers receive from state legislators. But you need information that can help you right now.
The official statement of the purpose behind workers’ compensation in Montana is a reflection of the attitude of legislators toward the workers’ compensation system and can change. If you look back through the system’s evolution in Montana, you find a level of disdain, disrespect, and contempt that seems to grow worse each legislative session. What does this mean to you as a claimant?
First, you will be treated as an opportunist and a criminal. If you are off work for more than one year, regardless of the severity of your injuries, you will be followed by a private investigator. You will be blamed for your injuries. Multiple jury research programs I conducted show that members of your community blame you for your injuries. When asked if it is appropriate for the State Fund to follow a claimant without good reason, the resounding attitude amongst community members interviewed was that all claimants should be followed. There is an overriding attitude throughout the workers’ compensation system that a significant number of claims (one in four according to training materials at the Montana State Fund) are fraudulent.
Second, many employers and co-workers will treat you as an outcast. For many of the same misunderstandings applied to claimants above, people who were your friends before you were injured may be less willing to speak with you afterward. Your employer is often scared that his or her workers’ compensation insurance premiums will skyrocket. The Montana State Fund and other insurance carriers do not calm these anxieties. They tend to fan the flame.
Finally, at some point, the insurance carrier may attempt to cut off benefits for no good reason. The insurance carrier will try to show that you did not report the injury or you made up the injury. Or, the insurance carrier may hire an “independent” medical examiner (a physician, if you want to call him or her that) whose opinion is bought and paid for by the insurer. For this reason, it is critical that you attend every single appointment, stay organized, and completely understand the benefits you have a right to receive.
Failure to tell your supervisor of your workers' compensation injury may end your case.
Workers’ compensation law is governed by statute. The length of time an injured worker has to report his or her injury depends on the type of injury sustained. A claimant who suffers an industrial injury must notify his employer within 30 days. If a worker is injured in a single shift, the injury is characterized as an industrial injury. If the injury occurs over more than a single shift, the worker’s injury is considered an occupational disease. The reporting period for an industrial injury is 30 days while the reporting period for an occupational disease is one year. I discuss the distinction between an Industrial Injury and an occupational disease in more detail below.
Montana law distinguishes between an industrial injury and an occupational disease. An industrial injury is an incident that occurs during a single work shift. The deadline for reporting an industrial injury is 30 days.
A claimant’s “failure” to report an injury is one of the most common challenges to an otherwise valid workers’ compensation claim. While a worker is only required to report the injury to a supervisor, the reporting of an injury serves as a perfect challenge to the factual basis of a claim. The purpose behind the 30-day notice was to allow the employer an opportunity to rectify or fix the dangerous condition that caused the injury. Instead, it has been used by the insurance carrier to pit the employer against the employee. To complicate matters further, workers are reluctant to report injuries to their supervisor. If there is any question about whether an injury occurred, it is vital that the employee reports and documents the injury. Lack of documentation in the reporting of an injury opens the door for the employer to challenge an otherwise valid claim.
The best way to think of the difference between an industrial injury and an occupational disease is to understand that injuries from a fall come from an industrial injury while a condition such as carpal tunnel syndrome is usually an occupational disease.
An occupational disease is a harm, damage, or death arising out of or contracted in the course and scope of employment caused by events occurring on more than a single day or shift. Put simply, if your injuries occurred over more than a single shift, you suffered an occupational disease. As such, the 30-day reporting requirement does not apply.
A claimant must notify the employer of a workplace injury within 30 days of the incident. Under 39-71-601, MCA, a claimant must file a written claim with the Department of Labor and Industry, the employer, or the insurer within 12 months of the incident. This time limit is extended to 24 months if the claimant can establish lack of knowledge of disability, latent injury, or equitable estoppel. Under no circumstances can a claim be filed more than 24 months after the discovery of a workplace injury.
Although a year may seem like a significant amount of time, it goes by quickly. Reporting the occupational disease or condition to an employer as soon as an employee is aware of the condition is critical. To make matters more confusing, an insurance carrier will challenge the onset date and attempt to move the onset date back as far as possible. Even though a worker is able to continue his or her employment following the onset date, worsening of the condition may eventually result in a claimant becoming disabled and unable to continue working. As with an industrial injury, a claimant, although not legally required to do so, must not only report but also document the occupational disease and the date of reporting the occupational disease to his or her employer.
Kiss Your Worker's Compensation Protections Goodbye When You Sign an Independent Contractor’s Exemption Certificate.
Under Section 39-71-401, MCA, all employers and employees are covered under Montana’s Workers’ Compensation Act. However, Section 39-71-401, MCA includes exceptions to this general rule. The exceptions expanded over the years and include an exemption of any worker carrying an “independent” contractor exemption certificate.
Section 39-71-118, MCA, defines an employee or worker as:
each person in this state, including a contractor other than an independent contractor who is in the service of an employer, as defined by 39-71-117, under any appointment or contract of hire, expressed or implied, oral or written. The terms include aliens and minors, whether lawfully or unlawfully employed, and all of the elected and appointed paid public officers and officers and members of boards of directors of quasi-public or private corporations, except those officers identified in 39-71-401(2), while rendering actual service for the corporations for pay.
Although this definition may seem broad, the exceptions set out under Section 39-71-401 cover no fewer than twenty-six types of employment that are not covered. The exceptions have been even further broadened by the Montana state legislature. The Montana legislature decided to allow individuals to opt out of the workers’ compensation system by obtaining an independent contractor exemption certificate. Possession of a valid independent contractor’s exemption certificate issued by the Montana Department of Labor and Industry creates a presumption that the holder is an independent contractor and not an employee. For all intents and purposes, this allows anyone in the construction trades to opt out of the workers’ compensation system.
Work in the United States and Montana has changed significantly over the past 100 years. Automation and the relocation of industrial work overseas caused changes in our workforce. Although Montana has one of the highest rates of on the job deaths, the number of serious injuries occurring on the job decreased dramatically from the time of the great bargain between employers and employees. There is a legitimate question as to whether Montana needs the workers’ compensation system at all. Plummeting benefits cause the entire community to bear the burden of injured workers. A lack of accountability for employers and employees makes the no-fault system seem outdated, and the end of the quid pro quo allowing employees to sue employers for unsafe work sites may be the best thing Montana can do.