Frequently Asked Questions

Welcome to FairClaim. Our law firm, located in Great Falls, Montana, represents injured workers in claims against workers’ compensation insurance companies.

We believe that a person who is injured or who suffers from a job-related medical condition is entitled to all benefits allowed by law. To this end, we are committed to evaluate fully the legal rights of our clients and to advocate for their right to receive the maximum benefits to which they are entitled.

The workers compensation laws have changed greatly over the years and almost certainly will revised in the future by the Montana legislature, which convenes biannually. The following questions and answers are based on Montana law as last established by the 2013 Montana legislature. The law applicable to your claim is the law in effect on the date of your injury or occupational disease. Therefore the following FAQs provide general information only and do not necessarily provide information that is specific to your claim. The information is provided free of charge as a service to the public and does not result in the establishment of an attorney-client relationship. If you retain a FairClaim attorney, he or she can advise you regarding the specific law applicable to your claim.

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FAQ

1. WHAT IS “WORKERS’ COMP”?

Workers’ Comp is insurance paid for by the employer to provide benefits, without regard to fault, for disability caused by a job related injury or condition (“occupational disease”).

2. WHO IS “WORKERS’ COMP”?

Workers’ Comp is either an insurance company or a large company that is self-insured. These companies are regulated by the Montana Department of Labor and Industry, which establishes rules for the payment of benefits and the resolution of disputes. Disputes that are not resolved by the Montana Department of Labor and Industry may be resolved by the Workers’ Compensation Court or by the Montana Supreme Court.

3. DOES IT MATTER IF THE ACCIDENT WAS MY FAULT?

No. As long as the injury or condition is job related it doesn’t matter who was at fault.

4. WHAT SHOULD I DO?

Requirements differ depending on whether you suffered an “injury” in a single traumatic event or suffer from a job related condition that developed over a period of time.

1. For an ” injury” you must notify your employer that you were injured on the job within 30 days of the injury. We recommend that the notice be in writing and that you retain a copy of the notice. The 30 day notice requirement does not apply to an occupational disease.

2. For an “injury” you must also file a formal written Claim for Compensation within 1 year of the injury with the employer, the insurer or the Montana Department of Labor and Industry.

3. For an “occupational disease” you must file a formal written Claim for Compensation within 1 year from the date you knew or should have known the condition was work related.

4. Get all appropriate medical treatment.

The time limits may be waived in very limited situations. If you are concerned about time limits you should call your attorney.

5. MY EMPLOYER TOLD ME HE DOESN’T HAVE WORKERS’ COMPENSATION INSURANCE. NOW WHAT?

Notify your employer of the injury or condition and file your claim with the Montana Department of Labor and Industry anyway. The claim will be handled by the Uninsured Employers Fund (UEF).

6. WHAT ARE MY BENEFITS?

1. Fully paid medical benefits for your injury or medical condition subject to some limitations.

2. Impairment award based upon the permanence and severity of the injury, subject to some limitations.

3. Wage loss benefits.

4. Expenses for vocational rehabilitation.

5. Death benefits to surviving spouses and dependent children.

6. Miscellaneous benefits.

The type and amount of benefits can vary greatly depending on many factors including the date of injury, nature of the injury, and applicable law.

7. IF I CAN WORK AT A MODIFIED JOB BEFORE I AM FULLY HEALED, AM I ELIGIBLE FOR BENEFITS?

Possibly. You may be eligible for temporary partial disability benefits.

8. MY DOCTOR HAS GIVEN ME AN “IMPAIRMENT RATING,” WHAT DOES THAT MEAN?

An impairment rating is a percentage calculation by your doctor of how much a certain body part is impaired. It is generally given when your doctor does not reasonably expect further material functional improvement from treatment (maximum healing). Depending on other factors relating to your claim, an impairment rating may or may not qualify you for an additional benefit known as an “impairment award”.

9. WHAT KIND OF PAYMENT CAN I EXPECT?

Apart from an impairment award, there are several types of wage loss benefits which may or may not apply to your claim:

1. Temporary total disability (TTD) is paid while you are recovering from your injury and completely unable to work.

2. Temporary partial disability (TPD) is paid if, before reaching maximum healing, you are released by your doctor to return to a modified, part-time or alternative job, but suffer a wage loss because of your work restrictions.

3. Permanent partial disability (PPD) is paid if, after maximum healing, you have a permanent injury to your body and have suffered an actual wage loss as a result of the injury.

4. Permanent total disability (PTD) is paid if, after maximum healing, you do not have a reasonable prospect of physically performing regular employment.

10. I HAVE HEARD THAT MY WAGE IS IMPORTANT IN DETERMINING THE AMOUNT OF BENEFITS, IS IT?

Yes. Your wage is very important in your workers’ compensation claim. The amount of money you were making at the time of injury determines the amount of all your wage loss benefits, so it is very important to calculate your average weekly wage accurately. Wages include all monies paid to you for your services as an employee, including tips and payments to you for piecework or under an incentive or profit sharing arrangement. Wages may also include the actual value of board or housing if it is provided to you by the employer as part of your employment.

11. I HURT MY BACK BEFORE, HOW DOES THAT AFFECT ME?

An insurer may be liable for an injury which aggravates a pre-existing injury or condition.

12. MY DOCTOR TOLD ME MY CONDITION WAS CAUSED BY WEAR AND TEAR FROM MY WORK OVER THE YEARS. SHOULD I FILE A CLAIM?

Yes. The law allows for benefits when pre-existing conditions have been aggravated by work. Also, the law allows claims for occupational diseases arising over more than one work shift.

13. CAN I GET FIRED FOR FILING A CLAIM?

The law does not allow an employer to terminate your employment or retaliate against you for filing a workers’ compensation claim.

14. CAN I CHOOSE MY OWN DOCTOR?

You have the right to choose your own doctor for initial treatment of your injury or condition. After an insurer accepts liability for your claim, it has the right to designate or approve the treating physician.

15. CAN THE ADJUSTER, NURSE CASE MANAGER OR MY EMPLOYER ATTEND MY MEDICAL APPOINTMENTS OR DISCUSS MY CARE WITH MY HEALTH CARE PROVIDERS?

No. The Montana Constitution provides that you have a right to privacy when attending your medical appointments. Further, the adjuster, nurse case manager or employer cannot discuss your medical care with your health care providers without advising you of their intention to do so and giving you a reasonable opportunity to participate in the discussion.

16. CAN I SETTLE MY CLAIM IN A LUMP SUM?

You may settle your claim in a lump sum in some situations, but it may not always be the best thing to do.

17. IF I HAVE TO TRAVEL FOR MEDICAL TREATMENT, WHO PAYS FOR THE TRAVEL?

The insurer is required to reimburse you for reasonable travel, lodging, meals, and miscellaneous expense incurred in travel to a health care provider for treatment pursuant to rules adopted by the Montana Department of Labor and Industry.

18. CAN I SUE MY EMPLOYER OR A CO-WORKER WHO CAUSED MY INJURY?

You may not sue your employer or co-worker for your injury unless your injury was caused by the intentional and malicious act or omission of the employer or co-worker. Generally it is very difficult to prove that an act or omission was both intentional and malicious. Therefore, it is unusual to be able to sue your employer or co-worker.

19. CAN I SUE ANYONE ELSE FOR MY INJURIES (“THIRD PARTY CLAIM”)?

If your injury was caused by someone other than your employer or co-workers, you may have a claim against the person or entity causing your injury. This type of claim is known as a “third party claim”. Examples of third party claims include the following: (1) If your injury was caused by a defective machine, you may have a claim against the manufacturer, fabricator, or seller of the machine; (2) if your injury was caused by unsafe work conditions, you may have a claim against the property owner or contractor responsible for work-site safety, provided that the property owner or contractor is not your employer; and (3) if your claim arose from a job-related motor vehicle accident, you may have a claim against the other driver. There are many other types of third party claims that can arise from job related injuries. Therefore you should discuss the possibility of third party claims with your attorney.

20. CAN I RECOVER FOR PAIN AND SUFFERING?

Generally, no. However, damages for pain and suffering may be recoverable if you have a claim against an employer or co-worker for an intentional and malicious act or omission or if you have a “third party claim” against some other person or entity that caused your injury.

21. DO I NEED AN ATTORNEY?

Workers’ Compensation law is complex. An experienced Workers’ Compensation attorney will gather your records, evaluate your claim, advise you of your rights, and negotiate with the insurance company to assure that you receive all benefits allowed by law. If disputes arise, the attorney will represent you before the Department of Labor and Industry and in Workers’ Compensation Court. Generally, an attorney is not permitted to charge a fee unless the benefits you receive are due to the efforts of the attorney.

22. HOW IS AN ATTORNEY PAID?

Generally, the attorney receives a contingent fee. This means that no fee is paid to the attorney unless his or her efforts are successful in obtaining benefits for you. Most often the contingent fee is 20% of the benefits obtained due to the efforts of the attorney. The percentage may increase to 25% if the benefits are obtained as a result of court proceedings.

23. WHERE CAN I GET A CLAIM FORM?

Your employer should give you a claim form. If not, contact us and we will send you a form without charge.

 


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