Employees injured or sickened on the job typically are entitled to a wide range of workers compensation benefits, including payments for medical expenses and lost wages. The laws for workers compensation are designed to help make the employee whole while keeping everyone involved out of the courtroom.
When everything goes smoothly, workers comp delivers the peace of mind that comes from good care and economic stability.
Alas, for all its excellent qualities, workers comp comes with no guarantees. Companies or insurers often stall, question, or outright deny claims for benefits, frequently over small errors.
Having an experienced, locally based workers compensation attorney on your team can help make certain you get the benefits you have earned, and that you deserve. Rather than going it alone (and learning hard lessons as you go), your workers comp attorney will run interference for you, scrutinizing your claims forms, communicating with the insurer, organizing the supporting medical evidence, fighting denials, negotiating a proper settlement, and leading your prosecution of a workers comp hearing or trial.
Workers compensation can lead down a harrowing trail. It’s best to have someone who knows the way by your side.
“A lot of times it’s not [about] handling the paperwork or taking the depositions,” says Peoria, Ill.-based workers comp attorney Todd Strong. “A lot of times it’s just meeting with the client and helping them understand the process, how the system works. And if we can set their expectations, then deliver on those expectations, they’re a lot more comfortable along the way, and a lot happier at the end.”
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1. Offer a Free Consultation
If you’re thinking you shouldn’t, or can’t, involve a lawyer in your case because of how much a workers comp lawyer costs, reconsider. The vast majority of lawyers representing regular folks tangled up in the legal system — including injured workers — begin with a no-cost consultation, a get-acquainted meeting in which the attorney evaluates the case and recommends a course of action. Based on that, the potential client decides whether to sign on.
Because this is the one point in the process where you can get something (legal advice and perspective) for nothing, consider consulting at least three workers compensation lawyers. Yes, even if you absolutely adore the first, get two more. Consultations Nos. 2 and 3 may raise questions or provide insights you had not considered.
Here’s what you should expect at an initial consultation:
- Meet individually with the attorney.
- Get acquainted with you, your background, and your work history.
- Discussion of your wages or salary.
- Description, in detail of how the workplace/work-related accident happened: time, place, working conditions, environment, witnesses, to whom you reported your mishap.
- Provide a list of previous injuries, whether work-related or not. Report previous compensation claims (if any).
- Provide a list of doctors who have treated you for the current injury.
- Sharing of evidence you preserved (if any).
- Status of your injury, care plan, claim, ability to work. Have you received money from the workers comp insurance company?
- Discussion of third parties who might bear some responsibility for your injury.
To help the lawyer provide the best possible consultation, bring whatever documentation you have pertaining to your workplace injury, including:
- Medical records.
- Copies of paystubs, direct deposits, and W2 forms.
- Copies of bills incurred as a result of your workplace injury.
- Copies of documents, letters, or other correspondence related to your workplace injury.
Expect your consultation to last roughly an hour — longer if your case is particularly complex.
2. Gather Evidence to Support Your Claim
Every insurance company’s business model is the same: Collect premiums – minimize claims.
Workers comp insurance companies are no different. Sharp, responsible workers comp lawyers anticipate the inevitable pushback from claims adjusters by assembling evidence to support your claim.
“Ultimately, the burden is on [the employee] to prove that the accident happened, it was in the course of scope of their employment, and that their injuries are related to the work accident,” Tampa Bay-area-based attorney Sarah Raaymakers said.
“Any type of documentary evidence, whether it’s statements, photographs, anything that corroborates an event happened in the manner they said it did, is helpful.”
Because workers compensation is a no-fault system, once the parameters are satisfied — the injury happened at work or is work-related — most of the haggling surrounds treatment and recovery.
To bolster your claim, a workers comp lawyer will be particularly interested in gathering evidence, including:
- Medical records.
- Medical opinions from treating physicians.
- Arranging an independent medical examination.
Other evidence that could work in your favor:
- Statements from family members and friends about your compromised daily activities.
- Documentation of your employer’s history of spotty workplace safety enforcement or insufficient training.
- Photos from the site of the event.
- Witness statements.
3. Assist with Navigating Medical Treatment & Exams
In most states, doctors treating injured workers are selected by the employer’s insurance company. Don’t like the assigned physician? There’s good news: You may ask to switch. Ominous news: You may ask to switch only once. And bad news: The sub will come from the same insurer’s doctor pool.
There is some wiggle room: The insurer has five days to identify your new doctor. If it misses the deadline, the selection is yours to make.
Why would you request a change? Remember, it’s in the insurer’s interest to keep the cost of your treatment as low as possible. A skillful workers comp lawyer will watch out for the following:
- The physician under-diagnoses your condition.
- A cheaper treatment, rather than the most effective, is pursued.
- You are sent to someone who is not a specialist in your condition.
- The insurer-selected doctor demonstrates a bias in favor of the company.
- Comparatively expensive tests that would precisely and accurately detail your ailment are dismissed in favor of cheaper, less-effective tests.
At any point during your treatment and recovery, your employer’s insurance company may request an independent medical exam, particularly when it questions some aspect of your claim. For instance, the insurer may disagree with the diagnosis that your injury (or illness) is work-related, whether a prescribed treatment is necessary or advisable, whether you’re ready to return to work, or whether you have a permanent disability.
However, the independent medical exam cuts both ways: If you suspect you’re not getting proper care, or you dispute your doctor’s findings, you and your attorney can request one.
“A lot of the time, you’re not arguing over whether the accident occurred or who was responsible for it because it really doesn’t matter,” Raaymakers says. “It’s usually more fighting over what benefits does the person need and are there injuries related to the accident as opposed to something else.”
4. Negotiate a Settlement with the Insurance Company
At some point, your insurance company may decide to pursue a settlement. If you haven’t been represented by a lawyer to this point, now is the time to act. Experienced workers comp attorneys have an excellent grasp of the value of your case, especially in regions of the country where employees use specialized machinery, and/or handle high-risk responsibilities.
“The more you know about the industries — and that’s one of the things I really love about this job,” Strong says, “the better lawyer you are. I get to meet workers from all walks of life. I love to learn about the worker, the job, the type of work they do.”
Negotiations over a workers comp settlement involve a variety of complicated, and complicating factors, including:
- The extent and degree of your injuries or illness and the limitations that come as a result.
- Your past medical expenses, and projections of required future medical treatment.
- Your current condition, your ongoing impairments, and the degree of your permanent disabilities.
- Whether you are owed wages lost for past temporary disability benefits (plus possible late payment penalties).
- Your pre-injury wages or earnings.
These issues will be familiar ground for insurance company lawyers. You should have someone on your side equally versed.
A good workers comp lawyer will recognize low-ball offers and high-pressure bluffs. With a skilled workers comp attorney on your side, negotiations are far more likely to be productive, fruitful, and efficient than those involving self-represented applicants.
A 2015 survey by Martindale Nolo Research indicated self-represented workers received an average of $18,000 in settlements; workers represented by legal counsel scored better, an average of $23,500 (or $20,000 net after attorney’s fees).
An attorney who’s looking after your interests also will be able to make certain the settlement agreement doesn’t compromise the Social Security disability benefits you may be receiving, or for which you will apply.
5. Appeal Your Claim Denial
Occasionally, workers comp claims get denied. “The system is very sophisticated,” Strong says. “It’s easy for insurance company to deny claims.”
Insurers may cite an assortment of reasons for denying claim. You injury doesn’t meet the statutory requirements for compensation. You’re attempting to present a pre-existing injury as a workplace injury. You haven’t provided the necessary medical documentation. You missed the deadline. And so it goes.
“I recommend having an attorney from the beginning,” Raaymakers says. “People come to me when they have received a denial, but the thing is, if they had come to me in the beginning, it could have been avoided.”
Having an attorney on your side means removing legal landmines before they become a problem. Their experience guides them in the questions to ask, the documents to assemble, the evidence to present, and the arguments to make.
6. Represent You at the Hearing or Trial
A workers comp lawyer will make certain you have the best possible chance to prevail if your case gets to a hearing or trial. Typically, the phases include these legal activities:
- Discovery, or the investigation of your claim. This may involve taking depositions of witnesses, requesting medical records, and performing legal research.
- Pleadings, or readying the documents necessary to pursue your case. These may include petitions, motions, and responses to insurance company claims or questions.
- Representation at the hearing or trial. Your lawyer will describe your theory of the case — the reason(s) you should receive benefits — make opening and closing arguments, question witnesses, and raise objections if counsel for the insurance company acts improperly.
7. Maximize the Benefits Available to You
We mentioned above that workplace accidents involving injuries sometimes may involve outside contributors. Perhaps an outside contractor performed faulty maintenance, or a tool supplier provided suspect instruments.
Oftentimes, employees injured while driving for work may have personal-injury claims in addition to workers compensation benefits.
“In Illinois,” Strong says, “it’s considered legal malpractice not to investigate the possibility of a third-party claim. The standard of care for lawyers in Illinois is to investigate the facts of the case to investigate whether there is any other responsible third party.”
Workers compensation lawyers also understand how to shape benefits, settlements, and winnings at trial to have the smallest possible impact on the government benefits you earned while working. These may include Workers’ Compensation Medicare Set-Aside Arrangement (a portion of a settlement reserved to pay medical services related to the workplace injury) and/or Social Security Disability Insurance offsets.
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 email@example.com.
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