Hurt on the job? Thinking workers compensation will make everything right again — no muss, no fuss? Better think again. The best time to seek legal representation following a work-related injury is … immediately.
“With comp,” says Sarah Raaymakers, a top-rated Tampa plaintiff’s attorney, “it’s not a question of whether there’s going to a problem. It’s a question of when there’s going to be a problem. … Because there always is.”
That acknowledged, Raaymakers understands the impulse of sick or injured workers not wanting to “rock the boat.”
“The first question people tend to ask,” she says, “is, ‘How is this going to affect my job?’ ”
Most workers just want to get healthy and get back to being productive. But waiting until things stop going smoothly isn’t useful. The earlier you take on legal representation, the more likely the gatekeepers of your care are to be cooperative.
This is especially true if your malady falls into a gray area: You say you injured your back doing heavy lifting at work, but your coworkers overheard you complaining about the strain of putting down pavers for a patio a couple of weekends before.
In workers compensation law, then, timeliness is pivotal. As every investigator knows, an inverse relationship exists between the value of evidence and the time it is collected. That is, the longer you wait, the less it is worth.
Maybe you twist an ankle or tweak a muscle on the job, and your supervisor or the human resources director recommends taking the rest of the day off. See if you feel better in a few hours. Maybe it’s a Friday and you get an early start on the weekend.
It happens, Raaymakers says. Employers, who despise the knock-on effects of higher premiums associated with claims, will attempt to dissuade workers from filing a workers comp claim “even when they’ve had a legitimate on-the-job accident,” she says.
“When there’s no paper trail, when there’s no instant report, then it’s our word against your word,” Raaymakers says. “That’s what happens sometimes. And when employees wait too long, the law is not on their side. They can’t even prove they had the accident in the first place.”
And that, Raaymakers stresses, is why you want to talk to a workers compensation lawyer early on. Not while you’re on your way to the emergency room, necessarily. But certainly once the crisis has passed.
Getting an attorney on board will help guarantee evidence is preserved (including your freshest possible recollection of events), the accident was reported in a timely fashion, and you don’t say things that can hurt you.
“You want to be truthful,” Raaymakers says. “You have to be truthful. You can’t hide things and you can’t try to manipulate the system.”
An attorney will help make certain you don’t injure your situation by openly blaming yourself or saying you’re not hurt as badly as you actually are.
Neal Pitts, an Orlando workers comp judge who has seen it all, says as many as 80% of the workers who come before him without a lawyer would have been far better off if they’d had representation.
“In a recent big case,” Pitts says, “the court acknowledged that the workers comp system is not a system that an unrepresented employee can generally, successfully negotiate. They refer to the claimant as being as helpless as a turtle on its back.”
Legal representation is even more important, Raaymakers says, when the workers injury or malady seems to have come on gradually, whether through “repetitive trivial trauma” — the activities that lead to carpal tunnel pain or prolonged exposure to a harmful work environment.
“Those are always a little trickier,” she says. “In those cases, it is important to talk to a lawyer as soon as possible. Because the date’s kind of fuzzy already; the longer you wait, the more problems you can cause for yourself.”
Should I Get a Lawyer for Workers Comp?
OK, you’re committed not to rocking the boat, and, investing faith into the workers comp system, you trust the company and its insurer to do the right thing.
Even then, however, you’ll need to know when to hire a workers comp lawyer. You may run into special circumstances that require legal representation.
Here are a few situations that warrant contacting a lawyer:
- Your claim is denied. Did you file too late? Does your injury or illness fall into a gray area? Your appeal likely will involve formal paperwork, proper evidence-gathering, and a hearing.
- You sense your employer is hostile to your claim, demonstrated by overt or even subtle retaliation.
- You have a significant pre-existing condition or disability.
- You are permanently disabled, either totally or in part, and the insurer resists your rating.
- Your employer and insurer fail to pay workers compensation benefits promptly, counting on you not to file an appeal.
- Your work-related medical issues prevent you from returning to your prior job, or limit what you can do at work.
- You receive, or intend to apply for, Social Security disability benefits.
- You were injured, or sickened, as a result of a third party’s actions or your employer’s serious misconduct. Was a piece of leased equipment involved? Or equipment maintained by an outside vendor? You may have grounds for a liability suit in parallel with your workers compensation claim.
What Does a Workers Comp Attorney Do?
Briefly, your attorney will:
- Gather, organize, and preserve evidence.
- Advise you what to say to the claims administrator so you don’t hurt your case, or even speak for you.
- Represent you before a workers comp judge.
- Present your case for claiming partial or total permanent disability.
- Push your employer and its insurer to act promptly on your case.
- Support with legal arguments your ability to get treatments recommended by doctors.
- Advise whether a workers comp settlement is in your best interests.
- Negotiate your highest, best settlement (if it comes to that).
What Should I Ask a Prospective Attorney?
Workers compensation cases are unlike third-party liability lawsuits in which the endgame is clear: The plaintiff will win, or be denied, a pot of money. It’s the rare liability claim that extends beyond a handful of years.
By contrast, because there routinely are ongoing disputes over evolving issues — your claim is denied; you’re having trouble getting medical care; you’re unable to return to your previous job; your disabilities are disputed — workers comp cases can last for years, even decades.
At Raaymakers’ firm — 50-year-old Carlson, Meissner, Hart & Hayslett, P.A. — some comp cases were initiated in the 1980s. Some cases are closed only with the death of the client.
Accordingly, it’s crucial you choose the workers comp attorney who’s right for you. “It’s really no different from picking your doctor, or picking an accountant,” Raaymakers says.
Do your research. Avvo.com, the attorney-rating website, is a good place to start. Pay attention to both peers’ and clients’ reviews. Gather a handful of names and begin making calls. Set up interviews. If at all possible, meet face-to-face. Learn about their communications styles and preferences — Are they compatible with your own? — and how accessible they are. What if something happens on the weekend? Will you have to wait until Monday to talk it over?
What does the lawyer think of your case? Do you need representation? If so, what are the initial steps? What role do you play? How long does (s)he think it will take? Does it matter if the accident was my fault?
What benefits can you receive from workers compensation? If you need to be retrained, will workers comp cover vocational rehabilitation? What should you tell my doctor? Have you represented anyone before in a similar situation? How did that turn out?
All things being equal, retain the local attorney. “Is this someone who appears in front of the local judges?” Raaymakers says. If your lawyer is from the other side of the state, “they can get ‘hometowned’ by somebody who knows the jurisdiction.”
Because you’re about to enter a relationship that could last a lifetime, Raaymakers says, be certain you hire someone with a proven track record, someone you can trust, someone you can talk to, someone who gives you confidence.
How Do I Prepare?
Even before you begin interviewing attorneys, preserve all that can be preserved.
- Make certain you save a copy of every form.
- Start a journal. Make notes of your discussions with supervisors, coworkers, and human resources personnel.
- Write down (or use a voice-recorder app on your smart phone to capture) your recollection of what led up to the accident, how it happened, and the aftermath.
- If your malady involves repetitive motion or a toxic environment, note when you first began to detect symptoms, and what they were.
Once you have retained an attorney, (s)he will guide you in this area.
How Long Will My Case Take?
As mentioned above, the length of time a workers comp case can last depends on the unique circumstances of each claim. Some last for decades, long enough to follow the client to the grave. Some sail smoothly to conclusions in mere months.
A 2015 survey of workers compensation clients by the law firm Martindale-Nolo indicated the average case took more than 15 months to resolve. Cases involving permanent disabilities, or negotiated settlements, or clients represented by lawyers — boat-rockers all, it would seem — stretched out an additional two to three months.
Why so long?
“There are no juries in workers comp,” Raaymakers notes. “Judges have no authority to decide the value of a case. The case can’t settle unless both sides agree.”
How Much Will an Attorney Cost?
Here’s good news: Most workers compensation cases are accepted on a contingency basis. That is, generally, your attorney doesn’t collect unless the client collects.
How much the attorney collects is established by state legislatures and ranges from 10% to 33%, often on a sliding scale; fee percentages often tick down as the amount the client collects rises.
Moreover, you and your prospective attorney can negotiate a fee that differs from the traditional. “That doesn’t guarantee,” says Orlando-based Margaret Sojourner, an insurance-lawyer-turned-workers-comp-judge, “you’re going to get a great lawyer who’s going to get you the most dollars, but it does give you some level of control in negotiating the fee.”
Know this going in, however: The fee you negotiate must be approved by a workers comp judge before a settlement is reached. No other area of law has that safeguard, Pitts notes.
There are times — these are rare and, Raaymakers says, “theoretical” — the client may be obligated to pay out of pocket. For instance, your doctor recommends an MRI but the insurance company denies it. Typically, if, after 30 days, the insurer approves the procedure, it also is on the hook for the attorney’s hourly fees and litigation costs.
However, if on the 29th day (your state’s time limits may vary), the insurer agrees to the procedure, your attorney may seek a percentage of the value of the benefit as compensation.
“Attorneys have the right to do this, and some do,” Raaymakers says. “But not all do. I’m among those who don’t. I’d much rather collect fees from the insurance company.”
You also should have very little upfront out-of-pocket costs. As you interview potential representatives, get them to do a bit of consulting as well. Many, if not most, attorneys will review your case free, or for a small fee.
When Is It Time to Settle My Workers Comp Case?
Ideally under workers comp, the injured employee receives the care (s)he needs to become healthy and productive once more, as well as tax-free wages to pay the bills; the employer gets a healthy worker and avoids costly litigation.
And it’s all over in a handful of months and everyone gets on with their lives.
Sometimes, however, the effects of an injury or work-related illness can linger for years, if not a lifetime. Under these circumstances, the affected worker may have little incentive to settle: Injury- or illness-related care (when the insurer doesn’t put up a fight) is covered 100%, and lost-wages benefits continue.
Settling the case, then, becomes a difficult proposition. Can you afford your necessary medical care? Perhaps Medicare, through age or disability, is an option. Would the insurer be open to squeezing ongoing health care into a settlement?
The bottom line is the bottom line: “If you settle your case and you don’t get enough money to cover your expenses,” Raaymakers says, “you’re doing yourself a disservice.”
And here, an attorney can be indispensable. Martindale-Nolo found 73% of workers receive payouts on their claims. Those represented by a lawyer received an average payout of $23,500, more than double workers who accepted the insurance adjuster’s first offer ($10,700).
Does more than doubling your payout by hiring an attorney sound like a good idea? As Judge Pitts says, “It’s a no-brainer.”
About The Author
Tom Jackson won dozens of national awards as a columnist for newspapers in Washington, D.C., Sacramento and Tampa. His writing has spread from business to politics to sports with an emphasis on community issues. Tom splits his time between Tampa and Cashiers, N.C. with his wife of 40 years, a college-age son and a yappy Shetland sheepdog named Spencer. Tom can be reached at firstname.lastname@example.org.
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