Frequently Asked Questions About Workers’ Comp, Personal Injury And Social Security Disability
A number of questions arise after a work-related injury or an injury caused by someone else’s negligence. Our focus at Christensen Law Office, PC, is to eliminate the stress of pursuing a personal injury claim or workers’ compensation benefits by handling the legal aspects while our clients focus on recovering. The answers to these frequently asked questions can provide some relief. Of course, we are always available to answer questions specific to your situation.
What benefits can I recover after a work injury?
Workers’ compensation benefits cover 100% of your medical expenses. Beyond that, every case is unique and must be assessed on its own merits. If you are unable to return to work for seven straight days, you may be able to recover a percentage of your lost wages. The amount you recover and how long you receive benefits are based on several factors. If you are able to return to work, but cannot work full time, you may receive benefits to partially compensate for the difference between your full-time and part-time income. Workers who suffer permanent injuries may receive benefits for life. Our knowledgeable workers’ compensation lawyer will help you determine what benefits you qualify to receive.
What if the injury was caused by my mistake?
South Dakota workers’ compensation laws protect all injured workers no matter who is at fault for an injury. There are exceptions in which a worker may lawfully be denied benefits, including if a worker is injured due to intoxication, illegal drug use or willful misconduct. Farm laborers and independent contractors also are not covered under the state’s workers’ compensation laws.
What happens if my workers’ compensation claim is denied?
A denied claim is not the final word. You may request mediation with the Division of Labor and Management. If a dispute is not resolved in mediation, or if you do not want to go to mediation, you may file a petition for a formal hearing before an administrative law judge. Often, a claim is denied because there are insufficient medical records to support it. We know what is necessary to support a claim, and we are able to resolve many denied claims without the need to go before a judge.
How long does it take to resolve a denied claim?
That’s sort of like asking how long is a baseball game? A lot depends on the unique aspects of your case. Some claims are resolved relatively quickly. Those that enter into litigation can take a year or more to resolve.
Can I settle my disputed claim for a lump-sum payment?
An insurance company may offer a lump-sum payment to resolve a dispute over a workers’ compensation claim. If an injured party accepts a lump-sum payment, they usually forfeit the right to all future benefits, including medical coverage. It may be a good idea to accept a lump-sum payment, but it is always smart to review such an offer with a knowledgeable workers’ compensation attorney.
Can I be treated by my own doctor as part of a workers’ comp claim?
You may be treated by your own doctor, but you must notify your employer about your choice prior to treatment (or as soon as reasonably possible after treatment). Your employer may ask for a second medical opinion with a medical practitioner of their choosing.
My employer’s insurance company claims my injury was a preexisting condition. Can I dispute that?
You are able to recover workers’ compensation benefits if you aggravate or exacerbate a preexisting condition due to work-related activity. These are complex cases where representation from an experienced workers’ compensation lawyer may help you reach a resolution in your favor.
When do I need to give notice of my injury to my employer? And how?
You need to give notice within three days, but as a practical matter, you should do so immediately if possible. For those medical conditions that may happen over time, say your shoulder is achy for days, then weeks, the law is that you need to give notice to your employer as soon as you have any idea that you could have or be injuring yourself at work.
What do I do if after I tell my employer about my injury, they don’t do anything?
That should not happen. You need to tell them again, then if they refuse to complete a First Report of Injury, you can do it yourself. Go to the South Dakota Department of Labor website, and you can obtain the report to complete. If you need help, call the Department of Labor and they will assist you. Then keep a copy for yourself and hand it to your employer. Date it, sign it and send a copy to the Department of Labor in Pierre.
What if my injury is denied because my employer or their insurance company says I had a pre-existing condition?
Your claim for injury should not simply be denied without some investigation by the insurance company. If this happens to you, contact your doctor’s office and find out if they will support that your work injury or work activities were, “a major contributing cause” of the medical condition or injury. The South Dakota Supreme Court has recently explained that “a major contributing cause” does not have to be the only cause, or the main cause (i.e., 51% or more), just a major contributing cause. Also, you should be careful to keep copies of any written denials because the statute of limitations is two years from the date of any denial.
What do I do if all the insurance wants to pay me is for the impairment rating? What if the impairment rating is only 5% or 10%?
What to remember is first that impairment ratings are owed to you by statute, meaning they are required to be calculated. This is simply a calculation done by a medical professional after examining you, taking those examination findings and plugging them into a formula of sorts. Impairment ratings are not the same things as disability. For example, a person who worked full-time as a concert pianist who injures their left-hand pinky may only have a 3% permanent partial disability rating (PPD), but still be 100% disabled, at least from the standpoint of their prior profession. The payment of impairment ratings is more recently being done without any prior knowledge of the claimant. You will probably know you had the impairment rating and then you will start getting checks which are not for your missed time from work but to indemnify you for the impairment rating only.
What if my employer isn’t offering me work within my restrictions?
You need to point this out to them, and it is recommended to do it in writing, so you have verifiable proof. Tell your nurse case manager and your doctor’s office. If the situation is bad enough, tell your employer you are unable to continue working.
What if I can’t work within my restrictions?
The squeaky wheel gets the grease. Return to your doctor or talk to your doctor’s nurse PA or NP, and let them know you tried the restrictions, cannot do it and your reasoning as to why.
Why do I need to hire a personal injury lawyer?
Because insurance companies are concerned about profits like any other business, they frequently undervalue claims by injured parties or deny valid claims completely. Our personal injury lawyer has experience standing up to insurance company lawyers and representatives in order to protect the rights of our injured clients. The insurance companies have lawyers who deal with these cases every day. You need someone in your corner who understands the tactics they use, and who knows how to build strong cases that maximize the amount that injured parties recover.
What if I am partly to blame for an accident in which I was injured?
Under South Dakota’s slight/gross negligence comparative fault law, an injured party may only collect damages in a personal injury lawsuit if he or she is only slightly at fault compared to the gross negligence of the defendant named in the lawsuit. If you are slightly at fault, the amount you recover will be reduced by the percentage of fault that can be applied to you.
Is there a cap on how much I can recover in a personal injury lawsuit?
While there is no cap on the amount of recovery for economic losses, South Dakota laws do limit the amount of recovery for noneconomic damages. The cap is $1 million in medical malpractice and product liability cases. Currently, there are no caps for punitive damages, though punitive damages are not common in South Dakota personal injury cases.
Social Security Disability
How do I apply for disability?
You can do this a number of ways. There is a Sioux Falls servicing office, and you can call them to have them set up a time to assist you with filing an application, 1-877-274-5421, or you can apply online at SSA.Gov.
Does everyone get denied after their first application?
No, statistics show approximately 45% of people do qualify for benefits after the initial application.
Do I need to apply also for SSI, Title 16 benefits?
It depends. There are two programs for the disabled. Think of them this way: One is an “insurance” you have work history and have been paying your taxes, you have been contributing to this insurance. The other is for people who are truly indigent, or have become indigent, and have little to no history of working or only working part time. You will also have less than 2,000 in your bank account. There are complicated rules for whether and how you can meet the money requirements of qualifying for SSI so you should consult with an expert. But, typically if you have worked full-time for a period of time then you should have enough “credits” to be insured. If you have a question about whether you are covered for the “insurance” for SSDI call your Social Security office and ask them, “Can I apply for SSDI?” “Do I have enough work credits” “what is my date last insured?”
What do I do if my claim is denied?
Don’t wait to do something because Social Security can be picky about this. You need to file your appeal within 60 days. Again, you can do this online or have the servicing office help you.
When do I need to hire a lawyer?
Well, you may never need a lawyer or a representative to assist you with disability. But, if your claim has been denied and you are required to go to a hearing, some people feel much more comfortable with a representative at the hearing.
How do I know if I will win my hearing?
You don’t. This is the best point my office can assist you. We will strategize based on several factors including your age, education, disabilities, medical support and various other factors regarding how to best present your case to the Administrative Law Judge.
Protecting Your Interests When You Are Injured
Workers’ compensation and personal injury cases are complex. It’s wise to enlist representation from a personal injury lawyer like Renee Christensen, who brings more than 25 years of experience in injury law to every case. Call 605-206-5872 or use our online contact form to schedule a free consultation.
We have the resources necessary to build strong cases, and we work with highly regarded medical professionals and other experts who can testify on your behalf if that is needed. Remember, there are no upfront costs, and we only collect an attorney fee if we help you obtain a recovery.