If you are at fault for your workplace injury, uh, the good news is you’re still entitled to workers compensation benefits—you may have not been being as careful as you should be, but that alone doesn’t preclude you from workers compensation benefits. The only exception to that is cases involving, uh, under the case law they call it horseplay, or you’re basically doing something that’s completely unrelated to work, you’re getting outside the scope of your work-related activities, and, uh, if, you know, if there’s a fight or an assault or horseplay at work that has nothing to do with the work or, um, to be done or has no connection to your employment, then that potentially could exclude you from coverage. Um, but other than that, if you just happened to do, um, a sloppy job or you just weren’t as careful as you should be, um, in one particular instance and you injured yourself, you’re still qualified to pursue workers compensation benefits.

If you disagree with your doctor’s opinion, um, first of all, it’s—it does happen, obviously it’s not a desirable situation to be in, but there’s, uh, that’s one example of several reasons why you might want to pursue a second opinion when you’re, uh, injured and your doctor—and you have a disagreement about whether it’s treatment, a treatment plan, or about diagnosis or what have you—if you disagree with your doctor, seek a second opinion, and oftentimes we can get a second opinion approved through workers compensation so you can get another set of eyes or another opinion about what’s going on, and second opinions can be very important in your case. If—one of the biggest reasons you might disagree with your doctor is perhaps your doctor saying, “I think you can go back to work,” and you’re saying, “No, it’s really—this is still bothering me, I’m not sure why it’s not better,” I’m gonna get the benefit of a second opinion.

Yes in the sense that you can, uh, depending on the facts, have an injury case or what we call a third-party case in addition to having a workers compensation case. What that would look like, as an example, is if you drive, uh, for your job and in the course of driving as part of your job another vehicle rear-ends you and injures you, you are, um, one of the people that would have two cases: you would have a workers compensation case because you were hurt at work—that would be pursued, uh, through your employer’s workers compensation insurance—but also you have a third-party or a personal injury case against the at-fault driver who rear-ended you, and that would typically be pursued against or through the at-fault driver’s auto insurance. And, um, there is some interplay between those two cases, but you’d be entitled to pain and suffering in the context of your auto case, your injury case—you would not be able to recover pain and suffering as a workers comp benefit. Um, so, uh, the no part of the answer is: if there is no third party at fault—and by third party we simply mean someone other than your employer, um, or your coworkers who might be at fault—uh, if there’s no third party at fault, then you can’t sue your employer, so in that sense you wouldn’t have a workers comp case and an injury case, you would only have both if there’s a third party at fault.

No, you can’t sue your employer, and that’s because when you’re hurt at work—whether your employer is at fault, negligent or not—you cannot file a lawsuit against your employer. Lawsuits against employers—suing your employer—is prohibited by what we call the exclusivity provisions of the Rhode Island Workers Compensation Act, and what it essentially says is the only remedy you can have for a work-related injury is to pursue workers compensation benefits under the Rhode Island Workers Compensation Act. And that typically means dealing with an insurance company that your employer has paid workers compensation insurance premiums to and obtaining or being eligible for the list of benefits that are described in the Workers Compensation Act. Um, so that means you don’t get pain and suffering, and you don’t get a lot of the sort of, um, human-type damages or non-economic damages that can be recovered in a traditional personal injury case. Um, but as a trade-off, unlike an injury case or negligence case, you don’t have to prove your employer was negligent as a requirement to start receiving benefits—you just have to show you were hurt at work. So the exclusivity provisions of the Workers Compensation Act make it so that you can’t sue your employer—you’re not allowed to. It can look—if you file a petition for workers compensation benefits or of any type in our court—you will have a caption on the case that says your name versus your employer’s name, and I’ve had, uh, clients asking, “Does that mean I’m suing my employer?” And the answer is no, you’re not, but you are petitioning for entitlement to workers compensation benefits because you were hurt at work.

The average weekly wage is important to know because that is the figure that determines how much per week you’re going to get in your weekly workers compensation check, also called an indemnity check, and what you get per week while you’re out on workers compensation is 62% of your average weekly wage. Um, it’s a little bit different for older injuries, but for some time now the law has been that you receive 62% of your average weekly wage. So how do you come up with your average weekly wage, quote unquote? Well, it’s defined by the Legislature in the statute, and what we do is we take the average of the 13 weeks in terms of what you made in the 13 weeks prior to your injury, and we factor in overtime and bonuses over the course of the past year before your injury. When you take the 13 weeks and add in an average of overtime and bonus, you come up with the average weekly wage, and that number, um, is the number you receive 62% of in your weekly check.

Uh, it’s a good idea to, whether through a calendar or a diary, at least, um, take some basic notes about when you had an appointment and who it was with, because your lawyer may need to know that from time to time, and he may call you up and ask you—or she may ask you—when’s the last time you saw the doctor, or often more importantly, when’s the next time you have an appointment to see your doctor, which doctor is it, because once, for example, I know that I can mark my calendar and say, well, you know, John Smith just went to the doctor today, let’s send a request for that medical report so that we can put it in the file, so that when we have a court date or some hearing or some other requirement to show your disability or show something else medically to get you what you need in your workers comp case, it’s there and we don’t have to have any unnecessary delays in getting that.

Uh, there’s two ways of looking at this—uh, obviously doctors in, uh, in the medical field have their own requirements in terms of medical documentation—we won’t get into that—but from a workers comp perspective, your ability to receive weekly workers compensation checks depends on, uh, medical evidence, medical proof that you remain incapacitated, whether partially or totally, from the job you were doing when you were hurt. So the documentation that should be in a medical report should start always with the doctor, uh, describing or taking what we call a history, which is you reporting to the doctor how you’re feeling, what your complaints are, how it happened. Uh, in terms of the original medical that you go for—the first time you go to the doctor after you’re hurt—it’s very important to completely, um, and accurately give the doctor a history that the doctor will then document in the report of the fact that it happened at work, how it happened, what your symptoms are, and what body part or parts are injured or affected by the injury. The next thing, the doctor will perform a physical exam or perhaps take some imaging and review those and discuss them and come up with a treatment plan that, that is reasonable and necessary to, to treat you for your injuries. Lastly, the medical documentation should contain some statement about your ability to work and, um, say, for example, that the patient is partially disabled or totally disabled, uh, or, uh, can work but has restrictions. If you are, uh, restricted in any way from doing your full duties, you can be considered partially disabled and entitled to workers comp benefits, and that’s all important medical documentation that we, workers compensation lawyers, rely upon and need to do our job on your behalf.

You need to keep records of any earnings you make while you’re out on workers comp, and you should also keep, uh, records of your workers comp payments so that your lawyer can see them or look at them from time to time when the need arises. Besides that, I would also say it’s important to keep your out-of-work notes that you get, uh, from time to time from your doctor. If you keep your out-of-work notes, your lawyer may call you up and say, “Hey, can I—can you shoot me over a copy of your most recent out-of-work note?” so that’s an important record to keep as well.

A Report of Earnings form is a document that an employee who is out on workers comp can use to fulfill the employee’s duty of reporting any earnings that he or she receives while out on workers compensation. If you’re out on workers comp and you’re getting a weekly workers comp check, um, there’s no prohibition from earning, uh, money doing something else that you can do physically while you’re out on comp; however, you have to report it—you’re, uh, legally obligated and required to report all earnings that you receive when you’re out on workers comp, and the Report of Earnings form is a pretty simple form to comply with that requirement. So, if in a given week you earned \$200, uh, delivering for, uh, you know, Uber Eats or what have you, you would fill out on that form that for the week ending such and such a date, I earned \$200, sign it, send it in to the workers comp adjuster or insurance company, and then they know what to do with it. Um, if you are only, uh, if you’re working at the same employer only, let’s say in a light duty capacity or fewer hours or whatever, due to your restrictions because of your injury, then the employer is deemed, uh, to know what you’ve earned in their employment in that regard and will report it to workers comp for you. Uh, the Report of Earnings form is generally used only for earnings that you have from a source other than the employer in whose employ you were injured.

In workers compensation in Rhode Island, we have, fortunately, one of the most efficient and fastest-moving, fastest-working courts in the nation—we’re really, um, sort of the gold standard in that regard. Now, things still take time; there is a turnaround time for everything. But let’s say, um, really whatever the issue is—it can be anything from are you entitled to workers comp or not in the first place, or it can be a situation where you’re on workers comp, that’s not disputed, but there’s a dispute over whether you should be paid, uh, a certain amount for your scarring, or whether you’re entitled to a form of medical treatment, or any issue—when you get to that point and you have to file a petition, the turnaround time, uh, kind of looks like this essentially: um, for many things like medical treatment, you first have to ask for it, and legally you have to ask for it in writing, and if the insurance company, uh, receives your request in writing for something, uh, you typically have to give them 21 days to respond before you can file that petition. So you have the first period of time you’re looking at in terms of turnaround time—21 days from when you ask for what you want to when the insurance company has to pay it or approve it or deny it. Once you get to that 21-day point, you can file a petition. Um, obviously, you don’t go into court the same day you file the petition—you file the petition on that 22nd day, let’s say, and now the court schedules a hearing so you can talk to the judge and make your case for what you want. That hearing, from the point you file it, is typically 21 days as well away. So you’ve got 42 days in terms of a typical turnaround time. And this all assumes that the parties can’t work it out in the interim—or, or once—sometimes once you file that petition, the insurance company will see it and retreat or say, “You know, here’s the authorization, go ahead and get that treatment, we don’t even have to bother going to court.” But worst-case scenario, if we’re going to have a judge decide a petition or an issue, you’re looking at 21 days for a hearing from when you file the petition. And more times than not, most disputes are resolved at that first hearing at the pretrial level, um, after 21 days. So that’s, um, a good turnaround time compared to other systems and other courts and other legal disputes that can come up.