What Questions to Ask a Workers Comp Lawyer?

Employees injured or sickened on the job have decisions to make about how to pursue their workers compensation claims. If retaining a lawyer is among them, the initial consultation (most likely free) can help claimants choose who to represent them.

Consultations typically last from 15-30 minutes. No matter how long your consultation goes, the time will seem to fly by, and it must be time well-spent.

Your potential legal counsel may not have the same topics in mind that are important to you. For instance, chief among the lawyer’s concerns is whether there are conflicts that would prevent her/him from representing you, as well as getting some biographical background.

You, on the other hand, are conducting a job interview. You want to know if you have a case, and, if so, whether the workers comp lawyer in front of you is the legal warrior you need. That’s why it’s important to have the questions you want to ask ready to go.

1. How Long Have You Been Practicing Law?

Even though you may be able to find this information by doing some online homework, it’s still a good idea to ask about the length of time the lawyer has been practicing her/his craft.

The simplest answer is an analogy, says attorney Barry Janay (with offices in New York and New Jersey): “Do you want to go to a doctor who’s performing surgery for the first time, and you’re going to be that patient?

“Experience matters. … In the first five years of my career, the way I handled a case is significantly different than the way I’ve handled it in the 15 to 20 [since]. … I understand the dynamics of the system much better by having the experience of having seen more, so I can navigate it better and I can strategize better.”

2. Is Workers Compensation Your Primary Practice Area?

Because workers compensation is a breed of law unto itself, you’ll want to know whether the lawyer has the degree of specialty necessary to present your best case.

Workers compensation, says Janay, is nothing like heading down to the county courthouse.

“It’s administrators and different procedures, that affect everything,” He said.

Janay’s list: Notification, discovery, doctors, compensation, and more.

“Someone who’s got 20 years of experience doing workers comp will have all the [experts] in their network, in their universe, so they can expedite things, put the best case forward.”

In short, avoid lawyers who merely dabble in workers comp, or who would be taking their first stab at it.

3. Will I Work Directly with You?

Your consultation may be with a partner or a senior associate who decides whether to take your case, but who has junior associates and lots of paralegal assistants performing the daily nitty-gritty. Not that there’s anything wrong with that.

However, if you’re getting answers about experience, years in the business, familiarity with cases such as yours, and other insights that apply specifically to the attorney taking the consultation, you may be disappointed when your file is handed off.

“Ask what the process is at their firm,” Janay says. “Are you going to be the one responsible for this from start to finish?”

Take heed: If you’re not working directly with the consulting attorney, it’ll be someone you haven’t met, who isn’t in the room, and who gets your story secondhand.

4. Have You Worked on Cases Similar to Mine?

Just as it’s crucial to be represented by someone who is deeply experienced in workers comp law, because the field covers a breathtaking variety of work-related mishaps, it’s important to know whether the lawyer has previously dealt with cases such as yours. If your claim involves exposure to hazardous chemicals and the lawyer you’re consulting has specialized in broken bones, you might not be a good fit.

“Every case involves some novel things,” Janay says, “so an attorney cannot guarantee an outcome. But an attorney who’s gotten the great outcome in a similar type of matter, that past performance is the best indicator.”

5. How Much Does It Cost to Hire a Workers Comp Lawyer?

Fears of whopping out-of-pocket expenses are a key reason many people fail even to explore the benefits of legal representation.

Not to worry. Like their personal-injury counterparts, workers comp lawyers work on a contingency basis. Fees for workers comp lawyers are paid as a percentage (usually between 10%-20%) of the awards they reap on behalf of their clients.

6. Who Pays for the Litigation Costs?

This is an extremely good question, one in which you will want an extremely good answer. Typically, litigation costs are borne, upfront, by the attorney or the attorney’s firm, and recouped only when you win your case. Some lawyers require their clients to foot the bill. Among the common costs of litigation:

• Cost to copy medical records and/or physician’s notes
• Fees connected to doctor’s reports or testimony
• Cost for copies of court transcriptions
• Court costs, when applicable

7. Does It Matter If the Injury Was My Fault?

Another excellent question. Maybe you heard around the job site that you hadn’t exercised proper caution before your misadventure. So, who are you to blame?

Those break room barristers don’t understand workers comp law, the truth of which should set your mind at ease: Workers compensation statutes are designed to take the issue of fault out of the equation. That is, it’s a no-fault system.

Squabbles may emerge — the degree and severity of your injury(ies), when you can resume work, the cost of your compensation — but, in the absence of extreme misbehavior (you started a fight; you were intoxicated at work), sorting out fault will not be among them.

8. How Long Do I Have to File My Workers Comp Claim?

Deadlines for workers comp such as time limits for notifying your employer and for filing a claim vary by state. Reporting usually has to happen within 30 days of the injury (or when you noticed the work-related impairment). Filing may need to happen within 12 months, or it may be as many as 3-4 years.

An experienced, competent workers comp lawyer will tell you, simply, this: The best answer is, for both: The sooner, the better.

It’s good to pose this question during your consultation, however, especially if you’ve let quite a bit of time to slip by.

9. What Benefits Do I Qualify for?

Broadly, injured workers are eligible for medical and rehabilitative care expenses, and compensation for lost wages. You also may be a candidate for job retraining, disability (partial or permanent), and/or continuing care.

Asking a lawyer during consultation is a good way to discover her/his knowledge of the extent and nuances of benefits due injured workers in your state.

Having legal counsel on your side is the best way to maximize your benefits: A Martindale-Nolo survey revealed employees represented by legal counsel were awarded 31% more ($5,500) than those without representation. These employees came out ahead even after fees and expenses were accounted for.

10. Can I Sue a Third Party?

A third party is a person or entity that contributed in some way to your workplace injury or illness. In the case of someone who is employed (not an independent contractor) to drive for work and is involved in a crash not their fault, third parties are fairly easy to identify. On the job site or in the office, it’s possible outside vendors provided slipshod maintenance or faulty tools that contributed to your injury.

An experienced, competent workers comp lawyer will be able to explore whether you have a third-party claim; such evidence would constitute the basis for a personal-injury lawsuit outside the confines of your workers compensation claim.

11. What Should I Tell My Doctor?

Injured employees should be careful but truthful with their doctors, especially those appointed by the insurer. Avoid small talk.

Be honest about the circumstances and your injuries. Make certain you do not leave out any important details about how the injury happened, or how it’s affecting your life. It’s prudent not to overstate your discomfort or limitations, but you also should not undersell them.

For further guidance, bring up this subject during your consultation. Workers compensation attorneys often have specific questions you should ask your doctor, and they may well be questions you hadn’t considered.

12. What Issues or Difficulties Do You Foresee with My Case?

This is a terrific question for sorting among the several workers comp lawyers you will interview. Asking about the issues and/or difficulties about your case burrows deeper into the earlier question about whether the attorney previously handled cases similar to yours. You want to know about the potential trouble spots, and whether your legal counsel has a proven strategy to mitigate them.

13. Will My Case Go to a Hearing?

Early on, it’s difficult to tell which way your claim will go. It’s a useful question to ask, however, to get a sense of whether the lawyer has preconceived notions.

The lawyer you retain will report it’s too soon to know whether your claim will wind up in front of a workers compensation judge, and that the answer won’t emerge until a fair amount of negotiation with the claims administrator. Most often, fair outcomes emerge without the stress and expense of a contested hearing.

14. When Will My Workers Comp Case Settle?

Be wary of a workers comp attorney who, during an initial consultation, talks specifically about the likelihood of your case going into settlement, what would come of it, and when it might happen. At a first consultation, a responsible lawyer will talk only about his/her experience with settled cases, and those (s)he has researched.

It’s fair, however, to ask about the conditions that typically are the impetus for a workers comp settlement, and how long after the settlement is completed, the money arrives.

15. What Determines My Work Injury Settlement Amount?

At an initial consultation, this question may be slightly premature, especially if you’re asking for a dollar amount. However, it’s fair to inquire about what’s involved in the calculations and what factors are considered.

Ask, too, about how much experience the lawyer has in negotiating workers comp settlements, how (s)he knows when the offer is at its maximum, and whether (s)he can explain the benefits of a lump sum, structured, or compromise-and-release payment.

16. What If I Need Additional Medical Attention?

At some point, you may be cleared by your doctor to return to work, possibly with restrictions. Nonetheless, your employer’s workers compensation insurance, by law, should continue to shoulder the expense of ongoing medical treatments until you have achieved your maximum recovery.

This question may not arise until quite some time after your claim has been filed and your benefits have begun. Indeed, it may be a factor in settlement negotiations; the sum agreed upon may provide you flexibility about ongoing treatment.

Your attorney will guide you toward a suitable, just outcome.

17. Can My Employer Terminate Me for Filing a Workers Comp Claim?

Worries about workplace blowback, up to and including termination, are fundamental to why employees may be reluctant to file workers comp claims. Such a radical response by an employer — retaliatory discharge — is against the law.

“That’s a legitimate concern, right?” Janay says. “Nobody wants [an employee] who’s a core problem. But if you have a proper claim and a legitimate legal complaint and you get fired trying to preserve your legal rights, you can include a civil action against your company.”

18. When Should I Go Back to Work?

We have established that every case is unique. This also applies to when it’s appropriate for you to return to work. Among the considerations:

• Are you appropriately recovered?
• Are you partially disabled?
• Does your employer want to change your duties or assign you a different role?
• Are you being asked to work outside your doctor-mandated restrictions?

Your experienced workers comp attorney will help you make the decision that squares with your best interests, both in terms of your recovery and your future work prospects. Perhaps alone in the workers comp process, your attorney will be your advocate, making certain — to the degree possible — you return to work on your terms.

19. What Should I Do If My Employer Asks Me to Work Outside of My Restrictions?

If you return to work with restrictions placed by your doctor, they will have been agreed to by your employer and the workers comp insurer. Asking you to violate those restrictions, whether directly or subtly, absolutely is not allowed. You are not merely entitled to decline the request, it’s your obligation.

Asking during an initial consultation may be putting the cart before the horse. But having legal representation if/when it happens will help put steel in your spine: “My doctor told my lawyer I’m not allowed to do that. Blame them.”

20. What Is the Likely Outcome in My Case?

As someone who was injured or sickened on the job, you are right to want to know what’s at the end of your workers comp journey. Asking about the outcome of your claim during a first consultation may seem premature, but it’s another way of getting deeper into the lawyer’s experience and knowledge about cases similar to yours.