Frequently Asked Questions:
1. My Employee has been injured at work. What can I do and what should I expect?
ANSWER: All employers in Kentucky are required to provide workers’ compensation coverage to their employees. In order to be compensable, a work-related injury must arise out of the work and although there are some employer defenses to a workers’ compensation claim, fault generally is not an issue.
An injured worker must give notice as soon as “practicable” and the employer and its insurer must report work-related injuries to the Office of Workers’ Claims, an administrative agency.
The employer should obtain a statement from the injured employee as soon as possible and make that statement available to its insurance carrier, which then notifies the Office of Workers’ Claims using a First Report of Injury form. The insurer then determines whether the claim is initially compensable and consults with the employer.
If the employer determines that the claim is not compensable and declines to offer voluntary benefits, an employee must file a claim with the Office of Workers’ Claims within two (2) years after the date of injury, or two (2) years after any income benefits have been paid.
2. What benefits are available to an injured Employee?
ANSWER: Workers’ compensation benefits come in three (3) categories:
A. Income Benefits;
B. Medical Expenses; and
C. Vocational Rehabilitation Expenses.
A. Income Benefits: An injured worker who has a compensable claim will receive temporary total disability (“TTD”) during the period of any complete incapacity to return to work and until this worker reaches maximum medical improvement (“MMI”), which means that the worker is as medically ready to return to work (even with work restrictions) and that no further treatment regime would be of service.
Permanent Partial Disability (“PPD”) and Permanent Total Disability (“PTD”) benefits are payable to the injured. PPD benefits are usually paid out over a 425 week period. PTD benefits are paid for life or until the injured worker reaches the age of 66 years – “normal retirement age”
B. Medical Expenses:
Medical expenses “necessary” for the cure and relief of a work-related injury are payable by the employer.
C. Vocational Rehabilitation Expenses: Vocational rehabilitation expenses are paid if the injured worker is unable to return to the type of work he/she did at the time of injury and would benefit from vocational retraining. The Employer’s liability for vocational rehabilitation benefits generally do not extend beyond one-year of vocational retraining.
3. Am I required to offer light-duty?
ANSWER: Generally, an Employer is not required to offer light-duty to an injured worker who has been released by a physician with work restrictions. While the Workers’ Compensation Act provides some encouragement for Employers who do bring seriously injured workers back to work at the same or greater wage, there is no requirement in workers’ compensation law that an Employer is to hold a job open for an injured worker.
4. Who chooses the Attorney defending the claim?
ANSWER: Self-insured employers have the prerogative to name defense counsel. Most insurance companies reserve the right to appoint counsel to defend a workers’ compensation claim, although large employers may have the ability to influence an insurance entity’s decision.
5. Will my insurance company defend all claims arising from an alleged work-related injury?
ANSWER: Workers’ compensation insurance carriers have the obligation to defend only workers’ compensation claims and, absent coverage questions, workers’ compensation insurance carriers must pay for the workers’ compensation claim. Naturally, all claims made against an employer may affect premium costs.
6. Are independent contractors covered under my workers’ compensation insurance policy?
ANSWER: While it is true that independent contractors are not entitled to workers’ compensation, workers’ compensation law analyzes the true nature of the relationship. If the employer controls the details of the work, provides the tools and materials, and the independent contractor works exclusively for the “employer”, then the relationship will likely be considered employment rather than independent contractor regardless of the description of the relationship as an “independent contractor”. All employers should execute written contracts with independent contractors and should analyze all independent contractor relationships.
All independent contractors with employees should also be required to produce certificates of insurance by which such employees (or independent contractors) are specifically covered. If an independent contractor lacks workers’ compensation insurance for its’ employees, any claims by such employees may travel “up-the-ladder” to the employer who has workers’ compensation coverage.
7. What other legal issues may arise due to a situation in which my employee has been injured?
ANSWER: While workers’ compensation law is a discreet and specific body of law, other issues frequently arise from alleged work-related injuries.
Employers are prohibited from “retaliation” against employees because they have or had an alleged work-related injury.
Employers who are large enough (50+ employees within a 75-mile radius) may be covered by the Family Medical Leave Act (“FMLA”) which provide unpaid leave.
An injured worker may file an unemployment claim which may involve workers’ compensation issues. Although the decisions in unemployment claims are not admissible in subsequent proceedings, testimony taken in unemployment claims may be used in other proceedings and therefore caution is advised when managers are testifying in unemployment proceedings.
Workers’ compensation injuries frequently implicate the Americans with Disabilities Act (“ADA”) and care should be taken to analyze an employer’s liability under the ADA.
Occupational Health & Safety Administration (“OSHA”) concerns also arise in loss-of-time injuries, and workers’ compensation income benefits may enhanced if the employer has been found to have violated OSHA regulations and standards.
Reportable accidents must be recorded on an OSHA log (Form 300) within seven (7) days of the accident and OSHA must be notified within eight (8) hours of a fatality or a hospitalization of three (3) or more employees from the same incident.