Older Injured Workers

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Older employees in Nevada who have a job accident resulting in an injury, or those who have an occupational illness don't fare very well under our current workers' compensation system.  For the majority of injured workers who have a work injury or illness who only miss a small amount of time and need a few visits to a doctor, the system works alright.  But those who have a serious work injury or occupational illness and who are older find the system isn't very friendly to them.  Here's why.

First, an injury inflicted on an older body often takes longer to heal.   Doctors who are hand-picked by insurers are already under pressure to return injured workers to light duty work programs or to full time employment just as quickly as possible.  If a surgery is required, you can bet that the adjuster will be scrutinizing the MRI and doctor's notes looking for evidence of a pre-existing condition that they will want to exclude from treatment.  The adjuster may wait until you complete the form asking about prior medical conditions and wait until she gets the records from any doctors who have treated the injured body part in the past.  Obviously, our bodies do deteriorate as we age, and both your adjuster and assigned doctor may be all too ready to blame your symptoms on age as opposed to the work injury.  

Secondly, now a job is just as important to the financial survival of  an older worker than it is to a younger one.   Many of us have had to face the financial fact that working more years until retirement will be necessary as a result of a bad economy.  Most people over the age of 50 thought they would be better off financially than they  are today. . Continuing to work full time jobs  past the anticipated retirement age is now the reality for many Nevadans. The same shoulder injury to a 60-year old worker is probably going to require more recovery time than one to a 20-year old worker; more time that the older injured worker has make ends meet  receiving comp benefits or light duty wages instead of full wages. 

 Thirdly, permanent partial disability awards are based in part on age of the injured worker.   Older injured workers get less for an impairment than a younger worker earning the same wages with the same percentage of impairment.  The theory behind that way of awarding for impairments is that the younger injured worker must go a longer  period of time having to work with that impairment.   This method of  computing awards isn't surprising to most older injured workers as they already feel that they are treated as if they are worth less than younger people. 

Fourthly, vocational retraining isn't a realistic option for older injured workers.   Injured workers who have permanent work restrictions that their employer will not accommodate are entitled to vocational rehabilitation benefits.  The worker may choose between a retraining program, or a vocational rehab lump sum buy-out.  Rarely will an older injured worker want to go back to school (to learn computer skills usually) to start a new career at entry level.  Instead, they opt for the buy-out, which is a fancy way of saying that they get money to go away and end the claim.  How much the injured worker gets for a buy-out is determined by the percentage of impairment (the PPD award), and whether the voc rehab counselor and adjuster will go to bat for the injured worker and try to get more than the minimum amount that must be offered.  The minimum amount is 40% of what the insurer would have to pay the injured worker in compensation benefits if the injured worker had elected to go through retraining.  Again, that minimum amount is based on the PPD percentage.  Rarely are those minimum lump sum buy-outs given to older injured workers sufficient to sustain them for the length of time it will take them to find new employment with their new physical limitations. 

What can an older injured worker do to make the best of their bad situation

1. Have realistic expectations.  A work injury doesn't make anyone rich, and if it is a very serious injury, the amount awarded will not truly compensate you for your various losses.  Likewise, if you have had ongoing medical problems with the injured body part, the adjuster should be trying to determine what should be accepted on the claim and what should be treated under your health insurance as non-industrial.  

2. Focus on the quality of the medical care.  You have the right to ask for a different doctor on the insurer's provider list within the first 90 days of your claim.  If your doctor is no good, ask in writing for a list of their doctors, get informed about which ones are good, and choose a different one.  The doctor will be deciding not only your medical treatment, but whether you should have work restrictions, and whether you should be scheduled for an impairment evaluation.

3. If you expect to have permanent work limitations, start thinking now about why your employer would want to keep you as an employee.  A Nevada employer is not required under Nevada's workers compensation law to offer a permanent light duty position to an injured worker.  Work comp law instead gives the injured worker vocational rehabilitation benefits. However, as discussed above, retraining isn't a realistic choice for older workers.  That means you must convince your employer that you can still provide a valuable contribution as an employee even if you cannot perform some of your old job duties.  Start looking now for other available positions your employer might have.  Approach this by listing all the important duties you still can do.  Talk to your HR department about requesting an accommodation under the Americans with Disabilities Act (a federal law).

 

Topics:  Age Discrimination, Workers Compensation Awards, Workplace Injury

Published In: Worker’s Compensation Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Virginia L. Hunt, Law Office of Virginia Hunt | Attorney Advertising

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