So, you’ve been hurt on the job and you are getting benefits – both wage loss checks because you’re out of work, and also your medical bills are being paid by the workers’ comp carrier. Why would I ever need a lawyer you might ask? Well, the short answer is, you might not. But the real question is: do you know all of your rights? Anyone who is suddenly thrown into the workers’ comp world with an unexpected injury likely does not know all of their rights.
First things first, if you are injured at work and your injury is fairly obvious, such as a broken leg, the odds are that you are going to get workers’ compensation benefits without having to hire a lawyer. It’s not always the fastest process, but you will probably first receive a call from a workers’ comp insurance adjuster. The adjuster will ask you how the injury happened and then send you a medical release form so the company can collect medical records to determine the extent of your injury. You will likely receive a document called a Notice of Compensation Payable in the mail, and then a few weeks later you will receive your first check. If your leg heals and you return to work a few weeks later with no loss of wages, your workers’ compensation check will stop, and your life will go on just as it was before. Throughout this process you may not have needed a lawyer. However, it’s when things don’t go well that the injured worker may find having an attorney not only useful, but essential.
For example, what if your leg doesn’t get better? What if it gets better enough that you can return to work but you still need treatment for months afterwards? Is your claim still open? What treatment are you allowed to get? What doctors can you see? Do you need to continue to ask the workers’ compensation adjuster for permission to see a particular doctor or to preauthorize care? These are just a few of the questions that will come up if your case goes on longer than expected. To that end, we recommend that anyone who is involved in a workers’ compensation matter discuss the case with a lawyer. The early stages of a case can often be vital for what happens later down the road.
What are some of the red flags that might indicate that it’s time for you to speak to a lawyer after you would have been injured? Well, the most obvious reason would be if you are injured, and your employer does nothing. This happens more often than one might expect. Employers certainly have an incentive to keep their track record clean. The more workers’ compensation cases it has against its insurance policy, the more its insurance rates might go up. Further, as soon as you are injured and no longer at work you are now a liability to the employer who was depending on you to do your job. The employer now has to find someone else to pick up the slack. Thus, many of the clients who come to our firm are coming because their employer has refused to do anything. Employers, not employees, are supposed to report injuries to their workers’ compensation carrier, and the carrier is required to either accept or deny the claim within 21 days of the employee giving notice to his or her employer of the work injury. However, sometimes the employers just simply neglect or refuse to tell their insurance carriers about the claim.
Another often-cited reason for injured workers to seek out counsel is pressure by either the insurance carrier or their own doctor to return to work before they are physically able to do so. As discussed above, employers have a financial incentive to get their employee back to work, and indeed, the injured worked may feel pressure to get back to work if they are not assured of a workers’ comp check being on the way. Insurance carriers and employers will often reach out to treating doctors to try to speed up the process of getting the injured worker back to their job. However, the employer’s perceived timeline might be well before the injured worker is ready. Similarly, an injured worker may have surgery performed by a prominent surgeon, but when the recovery time takes longer than the surgeon expects, the injured worker might be pressured to return to work by the surgeon who feels he or she did a good job with the surgery and can’t understand why the recovery would be taking so long. This is a time when an experience workers’ compensation lawyer may be able to guide the injured worker to a different doctor for another opinion. Many injured workers don’t realize that after 90 days and, depending on the situation, sometimes before 90 days, they have the option to see a doctor of their choice.
Once a workers’ comp claim has been established the insurance company has the right to send the injured worker to a doctor of its choice, which is called an “independent medical exam” in the business. However, many of the doctors used for independent medical exams have incentives to push the claimant back to work as soon as possible. After all, the insurance company is paying the doctor’s bill, and the doctor would probably like to continue to get referrals from the insurance company. Thus, many of our clients seek out legal representation after an independent medical exam, which may have resulted in a report saying that there is absolutely nothing wrong with the claimant! Further, most people who have never dealt with the workers’ compensation system have no idea what it means if an independent doctor writes a report saying the person can go back to work. What if the doctor releases the injured worker to light duty? Most people do not know their rights in this situation and meeting with a lawyer for before taking action is absolutely essential.
Sometimes an injured worker comes to our firm and has been paid incorrectly for weeks or even years, which they would have known sooner if they had come to us for advice earlier. As they say, you don’t know what you don’t know.
One of the problems that we often hear, especially in open court, is that claimants feel they cannot afford to pay an attorney. Any reputable workers’ compensation attorney would tell you that you only need to pay an attorney if that attorney performs some type of service for you, and a judge must approve the fee. For example, if your claim is denied and your attorney gets you benefits the attorney would be awarded 20% of whatever he or she got for you, but only after a judge approves that fee for the work done. However, if you receive those benefits on your own, the attorney will only receive a percentage if he or she has to go to court to protect or expand those benefits. For example, if the employer tries to stop an injured worker’s benefit because of an independent medical doctor’s report, the insurance carrier typically must hire their own counsel and file a petition with the court. Up until that time, your lawyer would likely have been simply guiding you through the process and will probably did not get paid if you received benefits without the lawyer’s involvement. The timing of when a workers’ comp lawyer gets paid is a common misconception.
Some workers compensation cases end in a lump sum settlement, especially if the injured worker is unable to return to their preinjury job. The injured worker would technically be able to negotiate the settlement on their own, but it is not at all advisable. How would they know how the process works? Does the carrier dictate the terms? What is the proper value of the case? If you’ve never had a work injury, finding these answers out on your own can be difficult to say the least. Further, attorneys for the workers’ compensation carriers are very keen on the idea of settling a case with an unrepresented injured worker for much less than it actually worth. Let there be no doubt, the 20% that the injured worker pays the attorney out of the settlement amount will be well worth not getting fleeced by a defense attorney who has been practicing workers’ compensation law his entire career.
At any given time, a large percentage of our clients received their benefits on their own and are not paying any fee or percentage for us to represent them. But they rely on our expertise to guide them through the process. Along the way many different issues will commonly arise. Our clients often have checks that are late. Or sometimes a medical procedure is denied as being not related to the injury. Or the employer makes a job offer to the injured worker and the injured worker is not sure what to do. These are just some of the many issues through which a competent workers’ comp attorney can guide their client. If you’ve been injured at work and are getting workers’ compensation benefits without the help of an experienced lawyer, you might think twice about obtaining representation. Hopefully this article has shed some light the various benefits of having representation after an unfortunate injury.