Maximizing Your Settlement
How to Try to Avoid Losing Your Worker’s Compensation Wage Loss Benefits to Help Your Lawyer Maximize Your Potential Worker’s Compensation Settlement When You Are Unable To Return To Work With Your Employer of Injury Due To The Work Related Disability.
So you were hurt on the job and are suffering a related wage loss covered by the Louisiana Workers Compensation Act. You have discovered your workers’ compensation claim pays your related medical bills, vocational rehabilitation benefits, mileage benefits, and a portion of your lost wages. Your lawyer has made sure that your Average Weekly Wage has been correctly calculated.
Now your treating doctor(s) says that you are physically able to return to work but you are unable to return to the same position because of your accident-related disability AND your employer of injury does not have alternative modified duty work for you. You are not earning AND are not capable of earning 90% of your pre-injury wage in another position. You want to return to work but are having difficulty finding a suitable job given your skills, education, and work restrictions. You (or your workers’ compensation lawyer) are contacted by the workers’ compensation insurance company’s vocational rehabilitation counselor to schedule a vocational rehabilitation conference.
You realize that the value of your potential workers’ compensation settlement will be primarily made up of any unpaid past wage loss, mileage and medical benefits (check with your healthcare providers to make sure they have been paid by the workers’ compensation insurance company) and your future mileage, wage loss, vocational rehab benefits and medical (a Medicare Set-Aside may be required). If you lose any of these benefits, the value of any potential settlement will also probably be reduced.
You also know that to avoid losing your wage loss benefits, you must be actively engaged in the vocational rehabilitation process to disprove any damaging errors in the vocational rehabilitation counselor’s Labor Market Survey (“LMS”). Both you and your lawyer are attending the meeting. What should you expect?
The counselor may assess through an interview and testing your abilities, limitations, physical and mental restrictions, general temperament, interests, aptitude, social skills, education, and other relevant characteristics and needs. However, the main purpose of this meeting is to gather information from you to try to reduce your weekly workers’ compensation benefits. A Labor Market Survey will soon be generated and delivered to you (or your lawyer) that supposedly identifies:
- the existence of a suitable job ( considering your age, experience, and education) within your physical restrictions assigned by your doctor and within a reasonable geographic region;
- the amount of wages you can expect to earn in that position;
- an actual position available for that particular job at the time you receive notification of the job’s existence.
The counselor may assess through an interview and testing your abilities, limitations, physical and mental restrictions, general temperament, interests, aptitude, social skills, education, and other relevant characteristics and needs. However, the main purpose of this meeting is to gather information from you to try to reduce your weekly workers’ compensation benefits. A Labor Market Survey will soon be generated and delivered to you (or your lawyer) that supposedly identifies:
- the existence of a suitable job ( considering your age, experience, and education) within your physical restrictions assigned by your doctor and within a reasonable geographic region;
- the amount of wages you can expect to earn in that position;
- an actual position available for that particular job at the time you receive notification of the job’s existence.
Actual Job Placement is not required for the workers’ compensation insurer and your employer of injury to try to reduce your weekly workers compensation benefits. They just have to point to suitable jobs that exist. Your wage loss benefits will probably be reduced using the jobs pointed to in the Labor Market Survey. Therefore, you need to gather information to defend your benefits. To try to avoid your weekly benefits from being reduced or terminated, you must thoroughly investigate all positions identified by the vocational counselor in the Labor Market Survey (list of jobs) she or he mailed to you (probably by certified mail) to determine if they are suitable. DO NOT WAIT, OTHERWISE, YOU WILL BE GATHERING STALE EVIDENCE!
Gather as many documents and witnesses you can to help you prove what the proposed job is really about. Print out the actual job description online, call the potential employer to express your sincere interest in the job, apply for the position, and gather as much information on the phone and at the job interview about the physical, education, and experience requirements of the job and pay rate as possible. Keep a journal to document the date, place, time, name of the person you spoke with, and what they said about the actual position as compared to the job described in the vocational counselor’s labor market survey. Save a copy of your job applications with these prospective employers. Photograph it with your phone, if necessary. Hopefully, you get the job, but if you do not, at least you will have a better idea of what the job is about.
Since many jobs are now posted online, you should also use Google’s Site Search Tool to investigate the proposed job. For example, if the vocational counselor’s Labor Market Survey identifies a proposed Baton Rouge or New Orleans, Louisiana “Sales Consultant” position at Office Depot, do a Google search for the “Sales Consultant” job description at the company’s website in the proposed geographic location. For example, Google search Baton Rouge Sales Consultant site:officedepot.com or Louisiana Sales Consultant site:officedepot.com. Printout the description as actually described by the company (Qualifications, Physical Requirements, Location, Hours, Full-Time Part-Time, etc.).
Inevitably, in most Labor Market Surveys, you will find the vocational counselor has, for whatever reason, an inaccurate description of some or all of the proposed jobs. Usually, the descriptions are more favorable to the employer and, if accepted as true (because you have failed to timely gather evidence to show the job description is inaccurate), will be used by the compensation adjuster to reduce or eliminate your weekly benefits.
You must investigate all Labor Market Survey Positions. Below is a Non-Exclusive List of issues to consider when investigating the Labor Market Survey positions.
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- What type of work (physically, educationally, and by training) were you capable of doing before the work accident and related disability?
- What type of work (physically, educationally, and by training), are you capable of doing after the work accident and related disability?
- Physical limitations Assigned by Your Treating Physician(s)
- Education, training, or skill: Do the Labor Market Survey positions(s) fall outside of your education, training, or skills?
- Did the job exist on the date you were made aware of it?
- Where is the actual proposed job located?
- Actual Wages Paid. Is the proposed job a full-time job?
- What type of work (physically, educationally, and by training) were you capable of doing before the work accident and related disability? Considering your condition before the accident, would you have been capable of doing the positions in the Labor Market Survey? If not, what education, training, skill or physical ability, etc. did you not have that prevented you from doing the position?
- What type of work (physically, educationally, and by training), are you capable of doing after the work accident and related disability? Considering your condition after the accident, are you physically and mentally capable of doing the position(s) in the Labor Market Survey? If not, what education, training, skill or physical ability did you not have that prevents you from doing the position? Is your employer of injury or the prospective LMS employer willing to provide you with the education, training, or skill that is required to do the prospective job?
- Physical limitations Assigned by Your Treating Physician(s): Do the Labor Market Survey position(s) fall outside of the restrictions placed on you by your treating physician(s)?
- Treating Physician(s) disapprove job(s)? Physician(s) approve job by signing the job description?
- If physician(s) approved the prospective job(s) by signing the job description, did he add any additional limitations to the job description?
- Is the position presented to physician for his signature an accurate description of the physical requirements of the actual position? Did your job interview with the LMS prospective employer or the actual description from the prospective employer’s website (and conversations over the phone with employees at the prospective employer) indicate the job requires physical abilities you do not have? Did you document the name, job title, and phone number (get a business card) of the person you spoke with at the prospective employer? Did you print out the actual job description from the prospective employer’s website? Would your physician(s) have approved of the actual position had he known of the additional requirements, if any?
- Did all of your treating physicians approve of the positions? If not, why not?
- Education, training, or skill: Do the Labor Market Survey positions(s) fall outside of your education, training, or skills? Is the position presented to you by the vocational rehabilitation counselor an accurate description of the education, skill, and training requirements of the actual position? Did your job interview of the LMS prospective employer or the actual description from the prospective employer’s website (and conversations over the phone with employees at the prospective employer) indicate the job requires education, training, or skills you do not have? Did you document the name, job title, and phone number (get a business card) of the person from the prospective employer you spoke with about the job? Did you print out the actual job description from the prospective employer’s website? Would the vocational counselor have approved the position had it been accurately described?
- Did the job exist on the date you were made aware of it? Did it exist on the date your treating physician(s) approved of it? If not, when was it filled or why is it no longer available?
- Where is the actual proposed job located? Is it beyond 30 miles? Do you have transportation to get to the proposed job? Did you have transportation to the job of injury? If so, how is the proposed job different? Did you walk to your job of injury but now you will be forced to purchase a car to get to the proposed job? Will you be required to use your car on the proposed job? Does your doctor know about the driving component of the job? How does your doctor feel about your driving to or on the job?
- Actual Wages Paid. Is the proposed job a full-time job? A part-time job? Does the starting position really pay what the vocational counselor says it pays? Is it a speculative commission only position but presented to you as an hourly or salary position?
Through your diligent effort to gather information and document your efforts to return to work, together with your staying power and a good workers compensation lawyer, you may be successful in minimizing the impact of the Labor Market Survey on your Louisiana Workers Compensation Act Claim.