Workers' Comp.101: Do I need to hire a Work Comp Lawyer?
By Cynthia Hennessey
Feb. 12, 2012 4:11p
Workers’ Comp. 101: Do I need a Workman’s Comp lawyer?
By: Cynthia M. Hennessey Attorney
The simple answer is “no”, you can get through the Workers’ Comp. court system oftentimes without a lawyer. Most Work Injuries are minor, for example: cuts on the hand requiring stitches, minor burns, knee twists and ankle sprains. In most of these situations, simple medical treatment is provided for and paid for by the Workers’ Compensation insurance company; there is no significant loss of time from work; and you should recover from your injury without a lot of future problems. There is typically no need to hire an attorney to handle these types of claims.
I do recommend, however, even with minor injuries that you take advantage of the “free consultation” offered by a well-qualified Workers’ Compensation lawyer. While the lawyer cannot give “legal advice” during free consultations, an ethical attorney should review your case with you, review the benefits that you have already received, or review the settlement offer that was made, and give you an honest answer as to whether some benefit was overlooked or not paid, and as to whether he or she can obtain benefits for you that you could not simply obtain on your own. In my practice, I frequently provide free consultations, only to determine that it’s best for the worker to try to continue handling the matter on his own and to call me if he starts to feel he is getting in over his head or begins to feel the employer or the insurance company is not being fair in some way.
On the other hand, there are other types of Workers Compensation injuries and situations which I definitely recommend you not try to represent yourself. Workers’ Comp can be a confusing maze of legal rules and procedures. Over the past handful of years, Insurance Companies and business groups have worked hard to have the laws stacked in their favor. Thus, even if you handled a case for yourself in the past and got a fair result, the Workers Comp system of today “ain’t what it used to be”. For example, we used to have
“legal advisers” at the Workers Compensation court, who assisted unrepresented injured workers and made sure that they did not “undersettle” their case. These legal advisers would meet with the injured worker, ask them all of their symptoms, listen to their complaints, make sure all of their benefits had been paid and that the settlement offer was fair. If they thought it was unfair, they refused to approve it, and either pressured the insurance company lawyer to offer a fair amount, or told the injured worker to hire a lawyer. However, Business groups heavily lobbied our lawmakers to remove all legal advisers from workers comp, and they got their way. In fact, they went so far as to have it written into the law that the Work Comp judges must approve all settlements entered into between the insurance company and the unrepresented worker, even if it is grossly unfair. The law now prevents the Judges from giving you advice, or even telling you that you are being cheated out of benefits.
This is just one example of the many ways big business got their way in stacking the deck. Big business is not about “taking care of their injured workers”, they are about holding onto every dollar they can. Thus, with a simple, minor straightforward injury I don’t think you can do much harm trying to represent yourself. Most people’s lives aren’t going to be seriously affected by a sprained ankle or a strained muscle.
However, if your case has any complexity at all, I strongly recommend you hire a well-qualified, experienced Workers’ Compensation expert attorney. In the following situations the average worker will most surely be in over their head:
· Your injury is severe enough to require surgery. In nearly every case, if you have had surgery you are entitled to a monetary settlement for the disability caused by the injury. Unfortunately, there is no “Kelly’s blue book” to determine how much money is fair. Only lawyers who specialize in Workers Comp can “appraise” the value of what your settlement should be. Do not ask your co-workers. First, they often exaggerate and say they settled for more than they did. Second, no two cases are identical. For example, if both you and a co-worker had a “torn rotator cuff”, a “fair” settlement may be very, very different for each of you. Settlements are based on whether it a “full rotator cuff tear” or a “partial rotator cuff tear”; what type of procedure the doctor performed, whether you have loss of motion, or loss of strength, as well as numerous other factors. Thus, you could be drastically cheating yourself out of thousands of dollars by getting your “legal advice” from a co-worker. Call a good Workmens Comp lawyer.
· You feel your injury may hinder your ability to return to your job. This is serious, obviously. And sometimes even a seemingly minor injury can prevent you from returning to your job. For example, I represented a lineman who worked for the electric company. He worked there 30 years when he had what would be considered a minor slip on a hill, twisting his knee. After all the medical treatment was said and done, his knee still had some instability, and the doctors said he “should not walk on uneven terrain” anymore. This minor slip prevented him from returning to his lineman job. This type of case requires a good workers comp lawyer, who is not only aggressive and willing to fight hard to get him a fair settlement for his losses, but a lawyer who is supportive and compassionate. These types of “minor injuries” can change the course of the workers life forever.
· You feel your injury will prevent you from returning to any type of work. This type of case is called Permanent Total Disability. These cases provide for lifetime weekly benefits to replace your salary. Thus, they always require a Work Comp lawyer. And more than any other type of injury, it is absolutely vital that you hire the very best Workmens Comp lawyer. These cases bring out the worst in the Employers and insurance companies. They will pay multiple “hired guns” to testify against you, they will hire investigators to follow you and spend a fortune defending these cases. Do not make the mistake of hiring anything but the very best Workmans comp lawyer.
· You have pre-existing disabilities. If you have any pre-existing disabilities or injuries, whether on or off the job, you could be entitled to benefits from the Missouri Second Injury Fund. This is a little known benefit that is often overlooked, ignored and misunderstood even by lawyers. Again, I know it sounds like a broken record, hire a good Workers Comp Attorney.
· You had pre-existing problems with the part of the body injured. One of the favorite ways Insurance Companies deny claims is by saying your current problems were caused by the pre-existing problem. We see this occur most often with back injuries. The Insurance Company will send you to a Workers Comp doctor for an IME (independent medical evaluation), the Work Comp doctor writes a report that says all of your back symptoms are the result of pre-existing degenerative disc disease, or pre-existing degenerative arthritis. This is usually all the Insurance Company needs to deny your claim. You must seek out a good Work Comp lawyer. Your lawyer should send you to a doctor who will listen to you and write a report that accurately sets the IME doctor’s report straight.
· Your case is denied by the Workers’ Comp Insurance Company or your Employer tells you “that isn’t covered under Workers’ Comp”. Do not take their word for it. Statistics show that 80% of the people denied simply take the Insurance Company’s word and never pursue the case. Sometimes, the Insurance Company is are just wrong, and other times, they are simply “being insurance companies”, which means they collect premiums and then deny claims. My advice, always, call a good workers comp lawyer. In fact call two or three. I cannot tell you how many times in my practice I was the 3rd or 4th lawyer to look at a case that was turned down by other lawyers that I went on to win huge verdicts and settlements.
· You don’t believe you are receiving all of your benefits. Again, Insurance Companies are not going to give you “advice” that helps you. Don’t just take their word for what you are entitled to. I see over and over instances of the Insurance Company “miscalculating” your weekly benefits, not paying mileage when it is appropriate, etc. Call a lawyer who specializes in Workers Comp. Just as you shouldn’t get your legal advice from your co-workers, definitely don’t get your legal advice from an Insurance Company claims adjuster.
· The Workers Comp doctor released you before you think you were ready or won’t refer you to see a specialist. This is very common. Remember, these doctors work for the Insurance Company, not you. They have the Insurance Company’s interest to protect, and that translates to one thing: saving the insurance company money. The Insurance Company likes it this way and the only way they will keep sending the doctor more injured workers is if the doctor keeps saving them money. It often takes a lawyer sending you to another doctor to fight the decisions of the Work Comp doctor. Your own family doctor cannot help you here.
· You think you need more medical treatment or may need future medical treatment down the road. Your health Insurance Company and Medicare are not responsible for paying for treatment caused by a Work Injury. They will deny the treatment and you cannot re-open your case. Once you settle, your case is closed forever. Thus you must be very careful that you not settle your case without discussing the ramifications of future medical care with a well- qualified Work Comp lawyer.
· You are on Social Security Disability, or think you may go on it anytime in the foreseeable future. A good Workers’ Comp specialist lawyer is a must. If you settle your case without putting very specific legal jargon in the settlement contract, Social Security can and will take your entire settlement. The legal jargon is highly complex, and many lawyers don’t even know how to prepare it. Thus, again, hire the best Workmens Comp lawyer you can.
· You are Medicare eligible or will be within 30 months of the injury. If so, there are many very specific rules which come into play. Your settlement must be submitted to the Medicare System, and must include a fund of money be set aside to cover future medical costs arising out of your injury. This is highly specialized, and Medicare will deny your treatment if it is done incorrectly.
· You were fired after the Work Injury, or are afraid of being fired. Sadly, we see this more than ever, and it is simply illegal. Missouri law is clear that no worker can be fired, demoted, or penalized due to a work injury. You may well have a civil action for the wrongful termination. In my experience, Employers are more afraid to terminate an injured worker when he has a lawyer. Thus, again, I recommend you hire an attorney if you’ve been fired, or are afraid of being fired.
· Your injury was caused by the negligence of another person or company. This is known as a “third party claim”. This situation is often overlooked or ignored by workers, and even lawyers who claim to know Work Comp. You may be entitled to a civil lawsuit against the person, the company or whoever caused your injury. For example, I recently represented a delivery driver who fell on ice while making a delivery. He had a “third party claim” against the company that owned the premises where he fell. This was a civil action which resulted in 5 times the settlement of his Workers’ Comp settlement. In situations where you believe someone else’s negligence caused your accident, I not only recommend hiring a Workers Comp specialist attorney, but one who specializes in both Workers’ Comp and Personal Injury. It is usually best if the same lawyer is representing you on both the Work Comp case and the third party case to make sure nothing is overlooked, duplicated, or contradicted between the two cases.
· Any medical bills remain unpaid, or you are afraid there are medical bills lingering out there. Another problem typical of Insurance Companies, is neglecting to pay bills. I frequently see clients who come to me after they settled a case on their own frustrated because after they settled, they received a call saying a bill wasn’t paid. It is too late at that point to force the Insurance Company to pay. A good work comp lawyer should be sure to check all of the bills are paid, and to make sure the settlement includes language protecting you in the event a bill slipped through the cracks.
· You do not feel comfortable calling and haggling with insurance companies or lawyers or if this all seems over your head, spare yourself the frustration, the stress and the worry and hire a great Work Comp lawyer. It is well worth it.
Thus, in conclusion, you can handle your case on your own. But just beware that Workers’ Comp, has become highly complex. The Insurance Companies and Business groups have had the laws stacked in their favor. You will be going up against lawyers hired by the Insurance Company who are specialist in Workers’ Comp. and you, most likely, are not. The lawyers are paid by the insurance company to get your case settled and closed as cheaply as possible. These law firms are not hired to “be nice” or “be fair”. They are hired to do what it takes to get you to settle for as little as possible. So, if your case is simple and straight forward, go ahead and give it a shot. But my advice is: if your case has any complexity, run, don’t walk to the best Workmans Comp lawyer you can find.
At Hennessey Law Firm we're always happy to talk with a worker about a work injury, even if it's just to discuss the need for formal representation. And initial consultations are always free.
About the Author Cynthia M. Hennessey, Attorney:
Combining her skills and experience as a Registered Nurse and Injury Attorney, Cynthia Hennessey has over 21 years of experience in handling serious injury, Workers’ Compensation and wrongful death cases throughout Missouri and Illinois. Unlike other Personal Injury and Workers’ Compensation Attorney’s, Cynthia’s Nursing education and experience provides her with the expertise to review your medical records and to fully understand your injury, as well as the diagnostic tests and treatment. As a former insurance company attorney, Cynthia experienced first-hand the tricks and strategies the insurance companies use to avoid paying claims. She knows the insurance industry and uses this knowledge against them to better serve her clients. As an experienced trial lawyer, Cynthia has a proven track record successfully representing thousands of seriously injured clients. She has made her reputation going up against multi-national insurance companies and corporations and winning.
Cynthia handles Workers’ Compensation, Personal Injury and death cases that result from many types of traumatic events; however tractor trailer accidents, truck accidents, car accidents, and motorcycle accidents make up the majority of her personal injury caseload.
Her experience includes all types of injuries, including head injuries, brain injuries, neck and spine injuries, paraplegia/quadriplegia injuries, fractures, and death cases.
Unlike other firms, Cynthia personally interviews, selects and handles each case. She will provide a free consultation in her office, by phone, or at any other location you choose.