Protection for the Future

[cvb]

Hello, let me start by saying I have found a lot of helpful information on this forum, thank you.

I was injured approx 1.5 years ago while traveling a short distance between offices for work. I have been covered under workers compensation and so far have not had many issues regarding medical payments, etc. I have been treated for this injury all along, and have done everything asked or recommended to me.

I was able to use Sick/Personal time to cover my absences in 2010 and 2011 (I was not told I had any other options honestly).

Recently my injury took a turn for the worse, and I have been out 2-3 times per week, or more, the last month or so. The primary Dr. treating me (not my family doctor) stated in my last visit, that it would be at least 3+ years, or maybe even the rest of my life dealing with these issues which make it impossible to show up to work reliably. She stated that there was not really anything else that I could do about it medically, just try to let the injury heal.

Seeking another opinion I went to my normal primary care doctor, who I had been in touch with since the beginning of the injury, and they had a few more ideas for me that they said were worth a try but they weren't 100% sure if they would help.

Since I had more frequent absences this year (and I believe because they also felt that I should magically be better by know) my employer requested that I have an FMLA filled out.

My doctor completed the form and requested that I stay out of work until May (2 months), but stated that depends on how further treatment goes.

After reading many things on here I know that the FMLA protects me to a point, but what if I am still injured after I have used up all of that time? Can my employer fire me even if it is ruled that I am unable to return to work? If my job is not protected do I at least have any wage protection? Meaning if it's ruled that I am disabled to the point of not being able to work, am I able to retain any sort of payment through workers comp or other means?

Oh, one other piece of the puzzle. This was an auto accident where I was hit head on by someone in a large SUV that crossed the center line. I have a Personal Injury claim against that person. My attorney in that claim does not handle workers comp or employment issues but he states that if I end up unable to work at the end of all this, the lost future wages can be regained through the personal injury settlement. I know that this is a WC forum, so it may not be appropriate to ask if that would be the normal course of action or not.

I'm sorry if this post is a bit scattered, but I have a lot on my mind and a lot of worry about the future. This stuff is no fun and my thoughts go out to everyone else out there reading this that may be going through similiar or worse situations.

Thanks.

[complwyr]

Man, you have a mess. I don't practice law in your state so I cannot give you any specific legal advice, but I am going to tell you some general things to help you ask the right questions.

First, they have to let you have your FMLA time (12 weeks) before they can fire you for being out due to your injury. So don't be shocked if you get canned and sent a COBRA letter after the 12 weeks of leave have run.

Secondly, I don't understand why you are not getting temporary disability payments every week from the work comp insurance. Your absences in 2010 and 2011 probably should have been paid by work comp if you were out due to the injury. Maybe you are getting TTD or TPD and I just did not pick that out. But I think you should be if you cannot return to work due to the injury. Ask your work comp lawyer why they are not paying you TTD at this point. IT seems to me that you are getting screwed on the comp case right now, and have been since 2010. IT may depend on whether a doctor has supported the fact that you are missing work due to your injury. If you just elected to stay out of work, then that probably won't get covered by comp. If the doctor wrote you out of work until May, then you need to be getting weekly work comp checks, I think.

Third, find out whether the work comp insurance company has a subrogation lien against your recovery from the driver who ran into you. Either one of your lawyers will know the answer. I am assuming you have two lawyers--one for the tort case and one for work comp case. If you don't have a work comp lawyer, you need to start looking for one.

Fourth, your tort lawyer is technically correct that you can get lost wages in the car wreck case. But based on my 20 plus years of representing people who have been hurt in wrecks, I would caution you in this way: Do not count on it. Any lawyer who promises you a certain favorable outcome on a civil case like that is going way far out on a very shaky limb. The insurance company on that side will lowball your case and if you have to go to trial on it, keep in mind that car wreck juries are often totally insane. And remember, you may have to pay back all or part of that money to the work comp carrier anyway if they have a subrogation lien.

If you don't have a work comp lawyer yet, go get one before your comp claim gets screwed up any further. Good luck.

[cvb]

Thank you SO MUCH for the reply comlwyr, it is extremely helpful.

I'm sorry that I missed a few things in my post. I was trying not to ramble too much but I guess I left a few important details out.

Almost a year or so ago I was given a Permanent Partial Disability rating of 2% based mainly on Range of Motion issues with my neck, and occipital triggered headaches were also noted. Prior to that I also had several issues with my back and shoulders, but was given nerve blocks and between those and PT my back/shoulder issues improved quite a bit. They are still far from what they used to be, but the every day pain is at least fairly minimal most of the time.

I was offered a lump sum of around $4000 from the insurance carrier and was told that was in accordance to VT state law. I asked if it would be possible to hold off on signing anything for now, and they said that it would be fine.

Around 6 months or so went by and I had not improved a tremendous amount. I had (and continue to have) what I would say are fairly severe issues with my neck, however in general I could perform normal day to day tasks by avoiding certain positions and certain activities. My headaches continued, but seemed to slowly get less frequent. I was beginning to notice what was explained to me as congnitive issues. Things like problems with concentration, multi-tasking, speach, memory, spelling, etc. I casually mentioned these things on a few doctors visits, not knowing if it would even be possible for them to be related to the accident or not. After these issues continued, doctors stated that it may be post-concusive syndrome (even though I didn't specifically recall hitting my head), or that they could also just be a side affect from a drug they had me taking called Lyrica. To be safe, they requested an MRI of my brain. The Workers Comp insurance innitially denied this request questioning why "all of a sudden" these issues appeared. I explained that they were not sudden, but had been going on for quite some time, and stated that I was not a Dr. and could not explain any more than the reasons my doctors told me. They scheduled me for an IME with another physician. After getting the medical exam the MRI was approved, and that physician marked my Permanent Partial Disability rating up to 5% (not counting anything the MRI may find). Luckily the MRI came back OK and after a few more months off of the Lyrica I am now more 'normal' in that regard.

At this time, I do not have a workers compensation lawyer, but I did speak to one a few days ago. He had told me that as long as workers comp was paying my medical bills then there wasn't really much he would do in my case (he did state that technically I should not have used sick/personal time for things related to this injury but I had no idea and take the blame for my ignorance). However a lot has changed in just the last couple of days...with that, and based on the information you provided, I plan on contacting one again tomorrow to review.

** Edit - I forgot to mention that my FMLA Leave was just completed today, and I was told by HR that they would be speaking with workers comp regarding any lost wages ongoing, so I'm still waiting to hear about that ***

Also, I was told by my Personal Injury lawyer that we would indeed have to reimburse workers comp at least 2/3's the cost of expenses.

For anyone that wants to continue reading for reference. My headaches have progressively gotten worse. I have been diagnosed with Occipital Neuralgia and tension/cluster headaches that intensify with any activity (along with ongoing neck pain but that is not preventing me from working, even though it prevents me from doing a lot of other things). I'm to the point now where I have had an ongoing headache for at least the last month. At times, with rest, I can get it down to what I would describe as a 3-4 out of 10 with occaisional flare ups that bring it to an 8-10 for brief bits of time, to a completely debilitating headache that would be in the 8-10 range for at 60-70% of the time lasting for several days with very minimal options for relief.

Again, the main Dr. that treated me is stating that this will continue to be the case for at least 3+ years, if not for the rest of my life, and basically gave up any further treatment. My primary care Dr. has a few more ideas for me, and is sending me to two other Dr.'s for evaluations and treatment also (on top of all the other places I have been). Based on my research of the conditions they diagnosed me with, there is not a huge success rate for people ever recovering (again that is based on what I have read, not an actual medical statement that was made to me).

I will admit, I was, and still am very ignorant with all of this. I just recently really started to take my medical treatments by the reins and somewhat 'demand' some sort of resolution, and also start reading up on the conditions and such. Up until this point, I did what doctors told me to do without question, and also believed every word our HR Department and the Workers Comp Rep told me without question. This has been, by far, the most confusing year and a half of my life.

If these issues cannot be resolved, I hope that I am able to get some sort of help as I will most certainly lose my job and there is no way I will be able to get another full time job until things get better (if they ever do). I feel that I could certainly perform a job with flexible (and possibly reduced) hours, but I have no idea where I would be able to find one around here that I could live off of.

I feel terrible complaining as much as I am when I have seen so many people posting with stories way worse than mine....my heart goes out to anybody in these types of situations.

Thank you again for your help and advice.