“If I am injured at work, how do I provide for my family and continue to pay my bills while I recover?,” That is the number one question facing many of the 33,000 workers who open workers’ compensation claims each year in Kentucky.
An on the job injury can be a devastating blow to Kentucky workers. Luckily, they have workers’ compensation available to cover their medical bills and two-thirds of their average weekly wage.
What is Workers’ Compensation?
Workers’ compensation in Kentucky is an employer-funded program which pays the medical bills, medical expenses, and lost wages for employees who are injured on the job or injured as a result of a workplace accident.
While industries and employers fund the program, the state administers it through a system combining regulations, hearings, and rulings by administrative law judges.
In Kentucky, the overseeing agency is called The Department of Workers’ Claims, or DWC. The DWC program’s objectives are to have the injured person promptly evaluated and treated, the injury investigated, and for physicians to determine if there is any permanent impairment and when the injured party can resume work.
Given that Kentucky borders seven states, KY workers are often in other states doing construction or maintenance work. If you work for a Kentucky-based company, you are likely covered under KY rules if you are injured while working out of state.
In Kentucky, your claim will be sorted into one of two types: medical only or medical and loss of work.
According to federal and state records, including the 2019-20 Department of Worker Claims Annual Report, roughly 33,000 Kentuckians reported a first time workplace injury last fiscal year.
Of those, approximately, half involved an injury to an arm or shoulder or lower back. The root causes of those injuries were determined to be trips, slips and falls, and or moving heavy weights.Typically, those injuries were reported as muscle pulls, bruises or joint sprains.
While the overall trend for injuries in Kentucky is on a downward slope, one area where claims have risen substantially is damage to hearing loss. From a low of 129 in the 07-08 fiscal year, hearing loss claims jumped to 606 in the fiscal 15-16 year and tapered down to 304 fiscal 2019-20.
What Does Workers’ Compensation Cover?
Kentucky’s workers’ compensation statute says it will cover injuries from workplace accidents and also fatalities.
Most workplace injuries are covered under workers’ compensation including:
- Broken bones
- Herniated disc injuries
- Lumbar injuries
- Joints injuries
- injuries from vehicle accidents on the job
- Injuries from collapsed scaffolding
- Trauma caused by heavy equipment failures
- Exposure to harmful chemicals
- Scalding from hot liquids
- Repetitive motion injuries
- Most injuries incurred while working at home (including those during the Covid 19 pandemic)
- Counseling or treatment for a traumatic incident at work or related to work
- Slipping on icy walkways you must cross on the way to your work assignment
Exposure to Covid 19 in the workplace, such as working in a nursing home, a hospital or medical transport, is also covered.
Generally speaking, if you are getting paid to perform a regular work-related activity, performing a task that benefits your employer, or are performing a task at the direction of your employer then you are covered by workers’ compensation.
What Types of Injuries Will Kentucky Workers’ Compensation Not Cover?
Workers’ compensation is designed and funded to protect workers who are injured while on the job.
It is important to be aware of several injuries or health conditions that are excluded from workers’ comp coverage. Here are a few:
- Commuting accidents off company property if you are not paid while driving your personal vehicle to or from work
- Exposure to toxic chemicals away from your job that were unrelated to your work
- Injuries such as COPD caused by smoking cigarettes or using tobacco
- Intentionally injuring yourself or injuring yourself while attempting to injure another
- Mental stress not related to any specific workplace event
- If you provide materials and perform specialized work as an independent contractor and not as a temporary or part-time employee
Injuries outside the scope of your employment such as horseplay, a spontaneous “pick-up” sporting event, or injuries suffered during a meal break may reduce or be excluded from your benefits.
A positive tox screen result after an injury accident may reduce the benefits you are awarded.
Certain agricultural jobs and people who have waived their rights to compensation due to a religious issue are excluded from coverage.
Kentucky strengthened its workplace drug laws in 2018. If illegal drugs or drugs in excess of therapeutic amounts are detected following an injury, the injured worker may be required to prove it was not the cause.
What Should an Employee Do When Injured at Work?
If you are injured at work, you should report the injury as soon as possible. You will need to report the injury to your safety or personnel office, depending on which person in the company is designated to receive workplace injury reports.
File a written report as soon as possible if you have to leave and receive immediate medical care.
Promptly reporting an accident rather than waiting days or weeks may make it easier to locate witnesses, documents, photographs, and to preserve audio or video recordings that could benefit your case.
If your injury is a minor scrape or bruise, you will likely receive first aid and return to work. If the injury requires outside medical attention, you may choose a doctor or clinic except in cases where the company has its own arrangements for managed medical care and the injured party can select from a list of providers.
The same would apply if you discovered a work injury after you went home for the day. If you miss more than a day of work due to the injury, the employer has three days to notify its workers’ comp carrier or outside claims adjuster.
How Much Do You Get Paid for Workman’s Comp?
In Kentucky, while recovering from your injury, you can receive up to two thirds of your average weekly wage, which is called Temporary Total Disability Payments.
TTD payments will start after 7 days and after two weeks will include payments back to the date of the time you stopped working.
When a final determination and impairment rating is made on your claim, you and your attorney, if you have retained one, may negotiate benefits to be paid in a lump sum settlement. If that settlement is appealed, it will go before a state hearing officer in a process that can take up to a year.
Workers’ compensation payments are tax exempt and are not reportable as income on your federal or state tax return.
How Long Can You Draw Workers’ Comp in Kentucky?
Kentucky uses a multi-tiered system to determine how long you can receive worker’s compensation benefits.
If you have a permanent partial disability rating of 50 percent or below, you can receive benefits for 425 weeks. If you have a permanent partial disability of more than 50 percent, you may receive benefits for 525 weeks.
If you are totally disabled, meaning that you cannot work again, you may receive benefits until you reach your full Social Security Retirement Age.
Who Pays for Workers’ Compensation Benefits?
Your employer individually or working through a group of similar industries may purchase outside workers’ comp coverage. Larger industries may be self insured. In addition, they pay a levy equal to 7.02 of their workers’ comp premium to pay for legacy programs and some administrative costs.
Employers who avoid signing up for workers’ comp insurance or do not pay their assessment can be subject to an audit and also face stiff fines.
Do All Kentucky Businesses Need to Have Workers’ Compensation Insurance?
Yes, with a few exceptions for agriculture and some in-home care providers.
Workers hired as independent contractors are exempt as are federal employees and railroad and maritime workers. These workers are covered by separate plans.
Some religious organizations are also exempt.
How to Calculate A Workers’ Compensation Settlement
A workers’ compensation settlement is the result of a complicated process that includes:
- Your previous wage history
- Your education
- The severity of your injuries
- A medical estimation of your permanent impairment if you do not make a full recovery
- Any recurring medical expenses
- Any retraining required to place you in a different position if you can no longer perform your former job
Kentucky recognizes three types of injury:
- Temporary Total Disability (TTD)
- Temporary Partial Disability (TPD)
- Permanent Partial Disability (PPD)
- Permanent Total Disability (PTD)
How to File for Workers’ Compensation Benefits?
You begin the process by notifying your employer of your injury or work related injury or illness and then proceed with a visit to your physician for treatment and a subsequent evaluation.
You may retain an attorney to help with your injury evaluation and claim. Kentucky workers’ compensation attorneys fees are set by statute.
What Happens After You File?
You may have an injury that requires only medical expenses to be paid. Or, your claim may require medical expenses and lost wages to be computed and paid while you recover.
Workers receiving a lost wage benefit are paid at two-thirds of his or her regular weekly base wage.
You will also be evaluated by a physician who will determine any physical impairments or limitations as a result of the injury.
A workers’ compensation attorney can assist you with the medical assessment and monitor the process to see that you have been treated fairly under the law.
Physicians will determine after your treatment when you have reached MMI, or the maximum medical improvement, meaning you have achieved medical stability.
A physician, often an orthopedist, will determine if there are any impairments. An impairment is a reduction in your ability to work. It can involve reductions or limitations on movement, stretching, lifting, reaching, standing or sitting. It can vary in range from total (100%) to one percent.
If you are evaluated and still able to perform your old job, you will receive paperwork saying you can return to work. Your employer will give you instructions on when and where to return to work. Make copies of these important papers and keep them with you..
If you have an elevated impairment rating and are unable to return to your old job, but are able to perform another job within the company, you may receive an offer for retraining at a wage different from your previous pay.
Based on the time off from work, the extent of your injuries, and whether they are permanent or temporary, you will be offered a settlement to cover your injuries and impairment.
The settlement offer will be one of the major events in your workers’ comp case. An attorney can offer you key guidance on how your settlement is structured and whether it treats you fairly. You do not have to accept the settlement you are first offered.
What if Your Claim is Denied?
Assuming you do not yet have an attorney, this may be an opportune time to seek legal assistance with a denied claim and develop an appeal.
Can I File a Lawsuit if I Also File a Workers’ Comp Claim?
While your employer is generally immune from being sued for an injury or death covered by workers’ compensation, the door remains open for a person who is injured or the estate of a workplace fatality to pursue what is called a third party claim.
Injured employees or their estates, may file a suit against third parties such as equipment manufacturers, or outside maintenance companies or outside contractors who may hold some liability for your injury while not covered by your employer’s workers’ comp plan.
The Bryant Law Center will be able to assist you with investigating your case and identifying responsible parties who may have liability for your injury.
How the Bryant Law Center Can Help Injured Workers
A recent analysis by the Kentucky Center for Economic Policy concluded that recent tightening of the commonwealth’s workers’ comp laws in industry’s favor has lowered payouts and increased the profitability of those insurers offering comp coverage in KY.
This change means more hurdles to cross for injured workers and can make hiring an attorney more of a necessity in complex cases.
A workers’ compensation attorney can help you with your claim by conducting an independent and thorough investigation of the circumstances behind your injuries. This includes issuing subpoenas for records and witnesses.
An attorney can help determine if there are any third parties who might hold some liability for your injuries. They can assist you in seeking compensation or filing a suit against them.
They can advise you on the fairness of any lump sum offers you may receive from the employer’s workers’ comp insurance carrier or adjuster and assist you in seeking Social Security disability payments or other compensation if you are unable to return to work.
Finally, an attorney serves as your advocate in any hearings to assure you receive all the pay and expenses to which you are entitled. If you attempt to negotiate with an insurance company without an attorney, you may be placing yourself at a significant disadvantage.
The Bryant Law Center has represented injured workers in western Kentucky for decades. Austin Kennady, who manages our workers’ comp practice and Shauna Dollins, his case manager, are experienced in helping injured workers obtain compensation for lost time and work related injuries.
Austin and Shauna will carefully review the facts in your case to ensure your claim gets fair treatment and your rights are protected under the law. Contact us today using the form on this page for a free consultation and more information about how we can help you.