All employed workers in this country are entitled to Workers' Compensation (WC) insurance coverage, including performing artists. Governed by individual state agencies, WC is designed to cover medical bills and salary losses due to work-related injuries. The employer pays the premiums to a private or state insurance carrier. When a performer is injured on the job, the medical bills of the injured performer are covered through WC as well as lost salary due to the injury. These rules apply whether the performer is under contract or not. As long as the performer is paid a salary from which state, federal income, and social security tax is deducted, the performer is entitled to WC compensation benefits.
Unlike employer group health insurance, the premiums for WC cannot be deducted from the employee's paycheck. In most states, if a company has more than two or three people employed, it is mandated by law that the employer provide WC insurance.
WC insurance includes the following benefits:
Medical benefits: Medical expenses related to your injury including physician evaluations, prescription drugs, orthotics, surgery/hospitalization, and transportation expenses are covered by WC. You are also entitled to financial compensation for any permanent disability you suffer.
Wage benefits: You receive a portion of your regular paycheck in the form of disability pay for the time you are unable to work.
Rehabilitation: Depending on the state, you are entitled to both physical and vocational rehabilitation if your injury prevents you from returning to work.
WC laws are complicated and vary from state to state. The following is intended to highlight some of the key issues relevant to performing artists:
What is the purpose of Workers' Compensation?
WC was designed to protect both employees and employers from the effects of work-related injuries. Established in the early 1900s, the intent of the WC laws was to protect employees from suffering financial loss due to on-the-job accidents and to protect employers from lawsuits involving large sums for negligence.
Is WC a federal law?
No. WC laws emerged by state. Although each state uses similar principles, considerable variation exists in terms of benefits, coverage, eligibility, and administrative arrangements.
What's a WC carrier?
Just as there are many different private health insurance companies (or carriers), there are different WC insurance companies. Some common private WC carriers are Liberty Mutual, Travelers, Wausau, and the Firemen's Fund. Some states also have what are known as State Funds. These carriers are connected to state government in that the profits from premium dollars go back into the state budget to be allocated by the legislature. A State Fund must insure any group that needs WC coverage, whereas private carriers can choose whether or not they wish to cover a group base on the risk it presents. State Funds usually offer "bare bones" coverage at low rates as opposed to other benefits available from private WC carriers. Some states have no commercial carriers, only State Funds and self-insureds. Self-insureds are those companies that use their own profits to cover their WC costs. A company that wishes to become self-insured must file with the state and meet a number of requirements.
Are WC medical bills covered the same as they are by a health carrier?
No. There is no deductible for WC medical bills and there is no co-payment required on the part of the patient. However, depending on the state and carrier, there may be certain restrictions as to the types of services and the amount of fees covered. For example, although chiropractic visits are covered in most states, there are certain limitations regarding length and type of treatment. Most alternative therapies, such as acupuncture and body therapy techniques, are not covered by WC. However, some chiropractic services and nearly all medically necessary services provided by a licensed physician or physical therapist are covered.
Some states require WC medical bills to be paid according to what is "reasonable and customary"; that is, if an office visit is usually about $50 in that state, WC will pay anything around that amount. But many states now employ what is known as a "fee schedule" to determine the reimbursement rates for WC. A medical fee schedule determines the amount a physician can be reimbursed by your WC carrier. These rates are specified by each state's Industrial Commission or Workers' Compensation Board and, although they are supposed to reflect customary rates, they are usually much lower than the reimbursement from private carriers. For this reason, not all doctors will agree to handle WC-related injuries or illnesses.
Even if you have private health insurance, your carrier is not obliged to cover any expenses related to your WC injury. In fact, most private carriers have a WC exclusionary clause; that is, if an injury is determined to be work-related, the private carrier will not pick up any unreimbursed costs.
If my claim goes into litigation, who is the defendant? My company or the WC carrier?
In legal terms, the company you work for and the WC carrier are referred to as the same entity in that the carrier represents the interests of your company. For example, if your carrier denies your WC claim and you challenge that denial, the action is technically against your employer and the WC carrier as codefendants, whether or not your company feels your claim should be denied. The legal documents involved would therefore read "John XXXX, Claimant vs. XYZ Dance Company and/or the State Fund of ZZZZ, Defendants." (Sometimes "Applicant" is used instead of "Claimant.") The carrier's position does not necessarily reflect the position of your employer. Even though your employer pays their premiums, the carrier is concerned with overall costs and legal precedents in addition to (or sometimes rather than) your individual situation.
Who chooses the doctor if I have a WC injury, me or my company?
This varies according to state, but all states have provisions for both claimant and company choice in a WC case. In most states, the claimant has first choice for physician but the company can require that the claimant see a company-choice doctor after a certain period of time off work. In other states, the company has first choice but the claimant can request written authorization to change physicians at any time. Choice of physician is important not only in securing appropriate medical treatment, but also in determining a disability rating.
What is a disability rating?
A disability rating involves whether an individual is totally or partially unable to work on a temporary basis, as well as an assessment of the permanent effects of an injury. Disability is often used interchangeably with the word impairment, but the two are not the same. Simply stated, impairment is the physical problem, whereas disability is the effect of that physical problem. These concepts are important for performing artists because often their injuries do not involve extensive impairment, but can result in profound disability in terms of ability to perform.
The American Medical Association Guides to the Evaluation of Permanent Impairment (AMA, 3rd Ed., 1988) defines impairment and disability as follows:
"Impairment is an alteration of an individual's health that is assessed by medical means. It is the loss of, loss of use of, or derangement of any body part, system, or function. Disability is an alteration of an individual's health status that is assessed by non-medical means. It is the limiting loss or absence of the capacity of an individual to meet personal, social, or occupational demands, or to meet statutory or regulatory requirements.
"The terms "medical means" and "non-medical means" indicate that while the physician is responsible for the determination of impairment according to verifiable medical procedures, disability is a much more complicated matter. While the disability rating relies strongly on the physician's determination of impairment, input from the injured party, employer, legal representative, psychologists, vocational specialists, and others is also used in the final determination. In a disputed claim, the extent of disability is ultimately a judicial decision.
The difference between impairment and disability can be exemplified as follows: a ballet dancer who suffers chronic tendinitis of the flexer hallucis longus may have relatively little damage to the ankle, and therefore only minor impairment. However, there may be extensive work disability in that the dancer cannot go up on pointe, a fundamental requirement of the job. Similar is the trumpeter who suffers nerve damage in the lips which does not affect eating, speaking, and other normal activities, but severely limits playing capability.
For performing artists with hearing loss, most states have separate guidelines for auditory impairment; however, they often do not reflect the ranges needed for musicians and singers (dancers may be affected as well). Be sure to check with an attorney and a performing arts medicine physician if your disability involves hearing.
It is important that impairment and disability be clearly defined in terms of the job demands of the performing artist. WC laws in some states differentiate between disability relative to one's job and disability relative to "normal" functional activities. Whatever the situation, the artist's ability to perform should be taken into account in any disability rating. This is important because this information is used to determine lost-wage benefits.
How do I know if my injury should be covered under private or WC insurance?
In order to be covered by WC, the injury must be work-related according to the definition determined by the state's legislature and Industrial Commission. Although this varies from state to state, there are common stipulations. The basic requirements are that (a) there must be a personal injury that (b) results from an accident that (c) arises out of the employment and (d) occurs in the course of employment. It is the second requirement that usually separates compensable from non-compensable injuries. An "accident" has generally been interpreted to mean that (a) there had to be an unexpected aspect to the injury, and (b) the injury had to be traceable, within reasonable limits, to a definite time, place, and cause.
What if my injury is not the result of an accident but is still work-related, such as an overuse injury?
The majority of injuries sustained by musicians, singers, dancers, and other such artists are not the result of a traumatic incident, such as a fall, but rather are the result of what is usually referred to as "chronic overuse" or "cumulative trauma." This is a very important issue because in many states the laws are ambiguous in this area. Many carriers automatically deny any injury that is not the clear result of an accident according to the previously cited definition. However, WC laws in some states do recognize cumulative trauma injuries as being compensable. In these states, repeated stresses that eventually lead to a musculoskeletal injury, such as lower limb stress fractures in a dancer or carpal tunnel syndrome in a musician, may qualify for WC benefits if the claimant can show a probable relationship between the injury and his or her work. In general, the current trend is that more states are accepting overuse injuries as compensable under WC laws. If your state does not accept such injuries as compensable, it is important that union representatives for performing artists work with performing arts medicine specialists in making their positions known to state Industrial Commissions and Workers' Compensation Boards.
What's the first thing to do if I suspect I've been injured?
After any onset of unusual pain or mishap in rehearsal, teaching, or performance, notify your company director, manager, or trainer about the incident. This should be documented in writing and filed with the company management. If a director is not around, tell a coworker. It is important to substantiate that at a given time you knew you were injured and that you communicated that to someone. Even if you think you are "okay" and not really injured, be sure to let someone know anyway. Sometimes the extent of an injury is not apparent until hours later when swelling sets in. The next step is to see a physician. The doctor then submits a medical report to the insurance carrier, who will then either accept or deny responsibility for these claims.
An injury usually involves a period of time off followed by a gradual re-entry into full-time performing. In most states, the time off from an injury must be longer than seven days to qualify for lost-wage benefits. In the event that a surgical procedure must be performed as treatment for the injury, extended periods of total disability from performing as well as some permanent partial disability usually result. It is very important that you and your physician carefully document these periods.
It is also important that you and your physician concur on the dates of injury and on the periods of recuperation. Most artists are very anxious to get back to their performing schedules; on the other hand, no injured performer wants to be put on the spot and expected to perform when he or she knows it might result in further injury. For these and other reasons, the communication between artist and physician must encompass these work-related issues.
If you are not sure if your injury is WC, you can still file a claim, although the carrier may not accept it. As might be expected, there are many gray areas regarding whether an injury is work-related. For example, what if you are on tour and slip on some ice in a parking lot on the way to dinner? It depends on the WC laws for the state in which your company is based or the state in which you are injured as to whether or not that injury is compensable under WC. If you are injured while travelling, be sure to consult a WC attorney regarding which state should cover your claim.
How do I go about challenging the denial of a WC claim?
Seek a consultation with a WC attorney. You can get a referral from your state or county Bar Association, and in larger cities there are organizations known as Volunteer Lawyers for the Arts. In most states, a WC attorney works on a contingency basis; that is, he or she cannot charge you directly for services but must rely on receiving a set percentage (determined by law) of whatever lost-wage settlement you receive. If you receive nothing, the attorney receives nothing. Check with your state's Bar Association or Industrial Commission regarding payment policies.
It is important, however, to seek an attorney who has some knowledge of or interest in the performing arts. As with your medical care provider, the legal counsel you seek must understand the nature of your work if you are to receive good representation.
What do I do for money if I've challenged a denied WC claim and can't perform during an extended period, but meanwhile am not receiving any benefits?
If you have a WC claim in litigation, you may apply for unemployment benefits as long as you are physically able to do some type of work (it doesn't have to be performing). If the WC claim is later settled in your favor, the money you collected from unemployment insurance will simply be deducted from your final WC settlement. Be sure, however, to document when you were collecting unemployment and retain all check stubs. Also, check with your attorney before you file for unemployment to be sure it will not harm your case.
What if my injury is so severe that I can no longer perform for a living?
Check with your state's Department of Industrial Relations, Division of Vocational Rehabilitation since many states have programs that will pay for re-schooling if you become injured or ill and can no longer perform your job (the disabling circumstances do not have to be work-related in many states). In California and Florida, it is mandatory to offer vocational rehabilitation to those involved in a career-ending industrial accident.
Are there any alternatives to WC for getting disability benefits?
Possibly. Private disability insurance policies are available, but in any case, be extremely careful with the terms of such a policy. Be sure the terms under which you will receive benefits (i.e., wage replacement) reflect your work realities. A company may wish to consider including a disability policy with its group health plan. If you belong to a union, you may be entitled to disability benefits through your membership. Also, if you perform for a major company, check your contract to determine the company's responsibilities for disability benefits should you become physically unable to perform.
If your WC claim is ultimately denied, some states also have what are known as statutory benefits for disability due to non-work-related illness or injury. These benefits serve as a supplement to Workers' Compensation law and insure protection to wage earners by providing cash benefits. In the state of New York, you are eligible if you are working or have recently worked for a "covered" employer for at least four consecutive weeks, with most performing arts groups considered "covered" employers.
In New York, if you are disabled in excess of seven days your employer is required to supply you with a Statement of Rights under the Disability Benefits Law within five days of your employer's knowledge that you are disabled. You must file within 30 days after you become disabled and the disability must be certified by a physician. In New York, covered workers who have earned at least $120/week are covered for any disability (including pregnancy if it is disabling) at up to 50% of salary (to a maximum of $145) for up to 26 weeks. To apply for such benefits, check with your state's Workers' Compensation Board or Industrial Commission and ask if off-the-job disability benefits are provided for. In addition, disability benefits are also available through social security, although the disability must be long-term in order to qualify.
Words to the Wise
Knowledge of Workers' Compensation issues can become critical for the injured performing artist. If nothing else, the artist should become aware of the following points:
Find out if your company is covered for WC and if not, find out if it should be covered. Discuss this with your company management, but if you are in doubt, contact the state's Industrial Commission or a WC attorney. If you teach for a university, be sure you are familiar with your institution's private health and work-related injury plans.
Know your rights before you need them. Discuss health insurance, disability benefits, and WC with your company management and/or union representative. Your management may have limited information so you may wish to contact your Industrial Commission or Workers' Compensation Board for literature.
Don't expect the insurance carriers (and sometimes even management) to tell you your rights. The WC and private health insurance systems are in a state of tremendous flux. Costs are skyrocketing and insurance companies are scrutinizing claims more closely than ever. In this atmosphere, the situation between the injured party and the insurance carrier can easily become adversarial. Know your rights and be prepared for some difficulties. Be prepared for negative reactions from insurance representatives and even fellow artists. In any case, be persistent.
Document, document, document. Whether you are involved in a WC or private insurance claim, remember to document in writing what transpires and keep an organized record of all bills, payments, phone calls, correspondence, and reimbursements. Get fee and treatment approvals in writing and document all phone calls made to the insurance carrier and your physician including the name of the person you spoke to, information discussed, date and time of call, and whether a message was left or the line was busy. If your claim is challenged you will need this documentation.
You are not indestructible. It is easy to say "But I've never been injured" or "It couldn't happen to me," but unfortunately, accidents happen, unknown weaknesses in the body emerge, or poor judgments are made even in the best situations. Severe injury is certainly the exception rather than the rule in the performing arts, but it's the exception for which you must be best prepared.
It is bad enough to suffer a debilitating injury without having to go through the trauma of financial loss as well. The fact is, no one is going to look out for you but you.
Acknowledgments
The author wishes to thank Estelle Baum, RN, CIRS; Donald C. Vass of the New York State Insurance Fund; and Peter Marshall, PT, ATC of American Ballet Theatre for their help in preparing this article.
About the Author
Robin Chmelar earned her MS in Sports Medicine and Exercise Physiology and BFA in Modern Dance from the University of Utah. A former dancer with Repertory Dance Theatre, she is the author of Dancing At Your Peak: Diet (Princeton Book Company, 1990) and of a number of articles on dance medicine. She is presently Associate Editor for Kinesiology and Medicine for Dance.
Art Hazard News, Volume 14, No. 5, 1991
This article was originally printed for Art Hazard News, © copyright Center for Safety in the Arts 1991. It appears on CAR courtesy of the Health in the Arts Program, University of Illinois at Chicago, who have curated a collection of these articles from their archive which are still relevant to artists today.
