Frequently Asked Questions

What is the Workers’ Compensation Act?

The Workers’ Compensation Act is a set of laws enacted by your state legislators in Santa Fe. The Act created the Workers’ Compensation Administration, which provides a structure for deciding workers’ compensation claims. The people you will deal with, judges, mediators, clerks and secretaries, all work for the Administration, and are state employees. The Workers’ Compensation Act requires that all work-related injuries be handled by the Administration rather than the state courts. There are advantages and disadvantages to this system. For instance, you do not have to prove that the employer or another employee was at fault to collect workers’ compensation. The accident can be your fault and you can still receive benefits. However, your right to damages is limited to what the Act provides.

Can I get paid in a lump sum rather than weekly payments?

The Workers’ Compensation Act provides for a partial, lump sum payment for debts accumulated during the time that you were injured and receiving benefit payments. This can only occur if you have won your case and are entitled to weekly payments. You must document your debts and present them with a petition to the judge. Any lump sum awarded is deducted from the end of the payment period, so you will continue to receive weekly or bi-weekly payments, but the number of weeks you are entitled to receive benefits will be reduced by the lump sum amount. You may also receive a total lump sum payout for all benefits, but only if you have returned to work for at least 6 months and are receiving at least 80% of your wages before the accident. Be very careful in agreeing to a total lump sum payout. Such agreements may waive any further medical care that you may need, and may affect your right to be rehired by the employer. If you are considering a total lump sum payout, seek legal counsel. You may call this office and discuss the matter.

Can I lose my job if I file a claim?

You cannot be fired solely because you have filed a workers’ compensation claim. If you lose your job because you filed a claim, and there are no other reasons, such as disciplinary reasons or an inability to do the job, then you have the right to file an action in state district court against your employer for wrongful termination. If you have lost your job or have been disciplined for missing work related to your medical condition, seek legal counsel. You may call our office to discuss the matter.

You have often mentioned the “employer,” what about the workers’ compensation insurance carrier?

The terms “employer” and “insurer” are often mentioned interchangeably in workers’ compensation. For all practical purposes they are one and the same. The actions of the employer often reflect on the insurer and vice-versa. One exception is that both the employer and the insurer can act in bad faith or unfair claims processing without the participation or liability of the other. This can occur, for instance, when the employer refuses or fails to turn in a claim to its insurer, or where the insurer acts independently of the employer, and without the other’s knowledge or approval.

What is bad faith and unfair claims processing?

“Bad faith” generally means that the employer or the compensation insurer has done something contrary to the law or the rules of the Workers’ Compensation Administration or has acted in some intentional manner to deprive you of your rights or benefits. “Unfair claims processing,” means that your employer or the insurer has done something to impede your claim or acted unfairly in the handling of your claim. If you believe that you can establish either bad faith or unfair claims processing, sometimes the terms overlap, you may be entitled to an increased award of benefits. If you believe that you are being treated unlawfully or unfairly, seek legal assistance. You may call this office to discuss the matter.

What are my rights?

You have three basic rights under the Workers’ Compensation Act: (1) The right to receive a compensation check every two weeks while you are recovering (called “Temporary Total Disability,” often shortened to “TTD”). The right to receive bi-weekly payments for any lasting effects of your injury after you have improved medically as much as you are going to improve (called “Permanent Partial Disability,” or “PPD”). (2) The right to future medical treatment for your injury for the rest of your life if you need it, (3) The right to demand rehire to your old job or similar job if you are able to do the job and if the employer has an opening. You may call this office and discuss the matter.

What if I am completely disabled from my work injury?

Total disability is hard to establish. Total disability arises in cases in which the worker has lost total use of both hands, or both arms, or both feet, or both legs or both eyes or any two of them. You need to consult with an experienced attorney in these cases. You may call this office to discuss your case.

What is an unscheduled injury?

An unscheduled injury is an injury not listed as a scheduled injury. This includes your back or torso, head, neck or other such area of your body. A back injury is the most common type of unscheduled injury. These types of injuries can be complicated to resolve, and you may need the assistance of an attorney. You may call this office for assistance.

What is a scheduled injury?

A scheduled injury is an injury to, or loss of, a specific body part, such as a hand, arm, foot, or leg. The Workers’ Compensation Act includes a schedule of benefit payments that apply to scheduled injuries. You may be entitled to additional compensation for loss of use of the body part. If you have suffered a scheduled injury or multiple scheduled injuries (two or more listed body parts), you should seek legal advice. Your permanent partial disability payment is based on a loss of usage of the injured body part. For example, if you injure your foot and have difficulty walking, standing, lifting and carrying, you may be entitled to a loss of usage. You may call this office and discuss the matter.

What are my rights of medical privacy? Can the insurer or employer have access to my medical records or require me to have a nurse or adjuster present during medical treatment?

Your medical privacy is protected under the Workers’ Compensation Act. The insurer or employer has the right to your medical records, but does not have the right to speak directly to your doctor without your approval. When you file a workers’ compensation claim, you sign a medical release that permits access to your medical records but prohibits any unauthorized direct contact with your doctors, whether they have been selected by you or your employer. Often, insurers will send you a letter with a medical release that allows them complete access to your records and your doctor. DO NOT SIGN THESE RELEASES. If you have signed such a release, it is void and against the rules of the Workers’ Compensation Administration. If the insurer sends a nurse or adjuster to accompany you to medical appointments, you do not have to have them present at the time of your examination. If the doctor or insurer refuses to provide treatment without the person’s presence, seek legal advice. You may call this office and discuss the matter.

What about medical benefits?

You are entitled to all reasonable medical care necessary to treat your work injury, including prescription medicine, for the rest of your life. Your employer is liable for all such care and must pay for your treatment. There are no co-pays or premiums involved. If you have been denied medical care and have had to seek treatment through your private health insurance, even if the employer pays for all or a portion of the premiums, you are entitled to reimbursement for any co-pays or prescriptions that you have purchased. If your employer is denying you health care for a work injury, or refuses to pay for your doctor bills or prescription, seek legal assistance. You may call this office and discuss the matter.

I am the spouse or dependent of a worker who was killed in a work accident.

Under the Workers’ Compensation Act, you are entitled to benefit payments for the spouse or parent’s accidental death. If such an unfortunate event has occurred to you, call this office or seek other legal counsel. You may call this office and discuss the matter.

How much am I entitled to receive in compensation benefits?

Your compensation benefits depend upon your wages at the time of the accident. If you are temporarily and totally unable to work (TTD) for more than 7 days, you will receive 2/3 (66.6%) of your gross average weekly wages paid every two weeks (bi-weekly). There are no employment taxes taken out of these payments. There is a maximum and minimum rate. Generally, you cannot receive more than about $500.00 per week, depending upon the maximum compensation rate at the time of the injury. The maximum rate changes periodically according to a formula based upon economic statistics. If you believe you are being underpaid, seek legal assistance. You may be entitled to reimbursement for unpaid compensation. You may call this office and discuss the matter.

My employer wants me to see their doctor. Can I see a different doctor?

You may pick your own doctor, but you must be careful. If your employer sends you to its own doctor after the accident, you must see that doctor. However, after 60 days of treatment with the employer’s doctor, you may select your own doctor (or chiropractor if you choose) by filing a form called “Notice of Change of Health Care Provider.” The doctor you select becomes your treating physician for the remainder of the treatment. If your employer tells you to choose your own doctor to treat your injury after it occurs, then you may do so, but your employer has the right to change your health care provider after 60 days, the employer will control your medical treatment. Unless you know the injury is going to be resolved in a short period of time, it is generally best to seek initial treatment from the employer’s doctor and change to your own doctor after the 60 days are up. There are other important considerations in the selection of a doctor, and you should seek help from an experienced lawyer if your injury is serious or of a long duration. You may call this office and discuss the matter.

What kind of paperwork must I fill out?

The Workers’ Compensation Administration has specific forms that must be used in any claim. These forms include a complaint, a summons, a medical release, and a form to be given to your doctor to fill out. Other forms include a Request for Hearing that must be filled out and filed if you need a hearing before the judge, and forms for various other matters. The full set of forms is provided in downloadable PDF format on this web site. If your case is complicated or you find you need help in filling out the forms, you should seek legal assistance.

Is there a time limit for filing a claim?

Generally, you must file a claim with the Workers’ Compensation Administration within one year of the injury or one year from the date when the employer stops paying weekly compensation benefits. There are exceptions, but generally, failure to file within the one year limit cuts off your right to a claim. If your one year date is approaching, or has recently passed, call our office for information on what to do. We may be able to help. In any case, there is no statute of limitation on your rights to medical treatment.

Who do I tell, what do I do if I am injured on the job?

If you are injured on the job, you must give notice to your employer through your boss or supervisor or you may lose your right to make a claim. The sooner you give notice the better your chances for receiving medical treatment and compensation benefits. In any event, you must give notice of the injury within 15 days of the accident. Formal notice includes filling out a form that your employer is required to provide. If the employer does not have the form or refuses to provide it, you can download it from this web site or obtain it from the Workers’ Compensation Administration. Always try to provide written notice. You may give oral notice to the employer, however, make sure that you do so in front of a reliable witness in case the employer later denies notice. Keep a copy of any written notice and make notes of the time and date that you gave written or oral notice, and to whom you gave it, including any witnesses. If you have any doubts as to whether you have given adequate notice, call our office and we will discuss the matter.

What about legal fees?

Our fees must be approved by the Workers’ Compensation Administration. You will not be charged for any legal representation until the case is resolved in your favor. If we are successful in establishing your claim in a trial, or in settling your claim, our fees will be awarded by the Administration. According to law, the employer pays one-half of the awarded fees and you pay the other half. Where the case is settled we generally charge you 10% of the settlement amount. We are flexible in our fee arrangements and in some cases, such as where your claim is resolved for a small amount, we will reduce or waive your portion of our fee. Our fee arrangements are described in our written fee agreement, which we will both sign if you choose to employ us to handle your case.

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