The State of Workers Compensation in Utah. (Spoiler alert: it's really bad)
Workers compensation is a strange anomaly in the area of law. Under most causes of action for injury, you are compensated for your loses. For example, if I suffer an injury from negligence on the part of another, I can recover any lost wages and benefits past and future as a result of the injury as well medical costs and damages for pain and suffering past and future.
This is not the same under workers compensation. Under Utah Workers Compensation, the average weekly wage is capped at a specific amount determined each year. Right now, it is around $840 a week. If you make more than that, you will not recover the full amount of lost wages and benefits. If you make less than that, you can recover 66 ⅔% of your weekly wage. (This presumably is with taxes in mind and you should not have to pay taxes on your workers compensation award but may also depend on other facts like if you also receive Social Security Disability Insurance or Supplemental Security Income)
Also, there is no pain and suffering compensation damages. Your recovery is based on an impairment rating based on your average weekly wage. This also depends on if you are permanently impaired. This can only be determined after the injury and after surgery. You have to reach a “maximum medical improvement” meaning, where you are is the most you can recover medically and essentially what your body part will be like moving forward.
Once you have reached that point, you can get an impairment rating. Each part of the body has a specific amount of weeks attached to it. For example, if you lose an arm it has a set number of weeks attached to it. The loss of an arm is 218 weeks. A hand is 168 weeks. If you lose your finger you will get 30 weeks of your average weekly wage. There is also a maximum amount of the whole person you can recover. You cannot recover more than 312 weeks in total. So if you lose your arm at work and you are maxed at the $840, you will receive a maximum of $183,120 for the loss of your arm. You will get a maximum of $25,200 for your lost finger.
If you are not permanently impaired you can’t recover for such losses and only are able to obtain compensation for time off work. You only get payments for time off work up to 312 weeks. So if you have a permanent impairment rating of a complete body loss of 312 weeks and you can’t work more than 312 weeks the max recovery you can obtain is $366,240.00. Also, payment for time off work ceases if an individual dies. So a death could also result in a lesser amount of compensation.
The theory under workers compensation is that the company gives something up and you give something up. The company gives up the negligence portion. In most typical personal injury cases, you have to prove the other party was negligent and more negligent than your own actions to recover. Under Workers Compensation, the proof is only whether or not the injury occurred on the job site. This also in theory makes it so the cost of litigation isn’t as high as that is the only question and the timing of litigation goes much quicker than other typical personal injury cases. That is in theory. That isn’t necessarily the reality.
The reality is and from my experience, these cases can take much, much longer than your typical personal injury cases. A personal injury case from start to finish, if you file a claim and take it to trial can take two years.
Under Worker’s Compensation, you first have to put your employer on notice of the injury. You have 180 days to do so. Your doctor can do this for you or you can contact your employer. Your employer is either self-insured or has a workers compensation policy. From my experience, the bigger companies are self-insured and have a third-party administrator determine liability. This in itself creates a big conflict of interest for the self-insured. You are asking your employer to pay for damages. The insurance entity and claims review team typically have around 21 days to review your claim and either deny your claim or approve your claim. They have to state a basis for the denial.
From my experience, insurance companies will deny your claim without explanation. The reason is because the theory of the Utah Worker’s Compensation system does not hold true to reality. It is easy to deny a claim and see if that person gives-up or if they know what to do at that point. At that point, the person has to file a claim with the Utah Labor Division and enter the litigation stage to contest the denial. Also, the claims that have a potential for big liability, such as older people that may never be able to return to work, and are most needy for their compensation will get denied.
From there, the company has 30 days to respond once the claim is filed. Thereafter, medical documents are exchanged. The company gets to investigate the accident and facts to the accident as well as you. The company can sit down and depose you, meaning they can ask you questions under oath as to the accident.
Most importantly, which is what makes these cases contentious, is the company will take your medical records and send them to their own “independent medical examiner.” That examiner will form an opinion on whether or not your injury was work-related or not. If the company doesn’t like their opinion, they don’t disclose the opinion to you. You are also in the dark what that medical examiner reviewed and what the company sent for its review. It is also important to note that if a medical examiner doesn’t give a favorable opinion for the company, they won’t be called on again. The company seeks out examiners they know will give them a favorable opinion.
Most people that are older have the hardest time. The examiners will skewer over your medical history. If there is any kind of injury remotely or just slightly related that you suffered from the past, the examiner will claim that the injury was not work-related but stemmed from a pre-existing condition. Even if you slammed your head into the back of another truck, if you had a prior neck injury, they will claim it is a pre-existing condition to claim it wasn’t work-related. So the case seems easy. Was it at work or wasn’t it?
That is the contentious legal fight in Worker’s Compensation and the medical causation is focused on more heavily than a personal injury claim. From experience, I can tell you that many medical examiner reports are absolutely bogus. Some make conclusions without facts to back the conclusions. Some make conclusions that are based on the medical evidence. Many of their logical reasoning is flawed. They don’t rule out other factors before concluding that it couldn’t be a work-site injury. On top of this, many of these examiners you will never talk to in person. They will just review the medical records. They won’t conduct the same tests as your medical providers to determine if it was work-related or not.
They will only point out flaws in what your medical providers did to claim that their tests weren’t sufficient to determine whether it was work-related or not without conducting tests on their own to see if it was work-related or not. Also, the funny thing about all this from my experience is these reports were never made at the time of your workers compensation denial. So the go-to for insurance companies is to deny now, come up with an excuse for the denial later if you file for a hearing and no recourse for this type of action. You also have no clue that this report exists at the time you file a claim for a hearing.
All you have in response to these examinations is your medical notes from your medical doctor on their determination that it was work-related. In order to rebut the company’s medical opinion, you have to seek your own medical examiner and pay out of pocket for it or you have to ask your doctor to write a rebuttal letter for them. Many doctors don’t like getting into the legal realm of its patients and some may refuse to do so. So you either have to subpoena your doctor to testify at the hearing or look for another doctor that can reput the company’s medical examiner.
This is also not to mention that the company which has more cash than you, may and can pay for multiple medical examiners and for follow-up reports from these examiners. Meaning, you have to rebut more than one report from one examiner and other examiners.
This whole process can take well over 9 months if not longer. During this time, if you are so injured you cannot return to work how are you providing for yourself? This whole process can make an individual destitute, homeless, crippled and without an ability to provide. On top of this, how do you intend to fight this whole battle? Some attorneys take contingency fees. However, as explained in how much you could get compensated for these cases generally have little value to make it an attorney’s time worth it to delve into a heated battle for so little in return.
At some point, you are going to get a hearing. At the hearing you are before an administrative law judge. The medical record is evidence that can be talked about without testimony. So if you really think your doctor had some good things to say in his doctor notes, you don’t have to call your doctor and can just point to his notes.
You will have to testify to your version of events, but it really is just a formality as what really matters is the medical records in most all cases. The big issue here and biggest loop-hole is that these independent medical examiners do not have to testify to either. So not only do you have to somehow find a way to rebut their conclusions, you don’t get to cross-examine these medical examiners on their conclusions. You can’t question them as to their qualifications or to their bias. You can’t ask what documents they reviewed and you can’t ask them about documents that are favorable to you. This is a gaping due-process issue. These medical examiners can be in New Jersey and don’t have to step foot in court and won’t have licenses to practice medicine in the State of Utah.
Also, the Utah Labor Commission hears your case through an Administrative Law Judge. The Utah Labor Commission is located in Salt Lake City. It covers all workers compensation injuries in the state. The judges also hear unemployment claims, whistleblower claims and discrimination claims. There is only a handful of judges. Because of this, you will not even get a hearing scheduled until a year after you file your claim. If for whatever reason one side asks for the case to be moved, you may not get another hearing until six months after that.
Here is also the biggest anomaly to Workers Compensation cases: If there is a controversy to medical causation, meaning if the company has its own independent medical exam report, and they will to claim that this was not work-related, the Judge will send it out to a medical review panel to make a determination on medical causation. So in the end, even though you are starving and destitute and ready for the judge to make a ruling that day, the judge won’t make a ruling.
I had a hearing and it was sent to the medical review panel. Between the hearing and the medical panel decision nine months had passed. We called the Labor Division to see what the hold-up was and the response was the Division is at the mercy of the Doctors and their schedules with their willingness to help and the Division could not give us a time-line on when they would examine my client and write an opinion for my client.