Category Archives: Workers’ Comp Q & A

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If You Have Symptoms, Tell Your Lawyer Immediately!

If You Have Symptoms, Tell Your Lawyer

Today’s post comes from our colleague Kate Fitzgerald of New York.

We represent a client whose hands were directly injured a few years ago. The insurance company, as part of its defense, is raising a provision in the law which requires an injured worker to file a claim for a direct injury within two years of the accident (WCL § 28). While interviewing the client, we learned that she had been feeling symptoms in her hands years ago, at the same time as she began experiencing the symptoms to other areas of her body. But because she only mentioned that her hands hurt now, we may not be able to get her the compensation she deserves.

Our client told me that originally brought up the symptoms of numbness, tingling and weakness in her hands with her doctor, but he felt these symptoms were related to her neck, another

If you are hurt, tell your attorney everything, even if you aren’t sure if it is relevant.

area where she was injured. The doctor tried to treat her hand symptoms by treating her neck first. He Continue reading

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How To Select A Good Lawyer For Your Problem

Today we have a guest post from our colleague Rod Rehm of Nebraska.

Selecting and hiring a good lawyer is critical in dealing with a legal problem. Lawyers are increasingly limiting the types of cases handled in an effort to provided better representation. The Internet is a common starting point for consumers to locate and select lawyers who have the right kind of knowledge and experience for their problem. I recommend the following steps for selecting a lawyer.

1. Check with family, friends, neighbors, or others whom you trust and respect to learn if they know of a lawyer or law firm who they would recommend for the kind of problem you are dealing with. This approach is the traditional way to find a professional and often leads to a good attorney-client relationship with satisfactory results.

2. Consult a general-practice lawyer you know and ask for recommendations. This approach gives you the advantage of having someone who knows area lawyers help you find the right mixture of knowledge and expertise.

3. Internet searches will turn up a large variety of lawyers who handle the kind of problem you are experiencing. Read several of the websites with a careful eye for the following:

a. Is the firm A-rated by the leading peer-rating organization Martindale and Hubbell? The ratings are very good indicators of how the firm is regarded because they come from judges and other lawyers who work with the firm.

b. Do the members of the firm appear to be actively involved in organizations dealing with your kind of problem? Are the lawyers officers or board members of such groups? Have the lawyers been speakers at seminars? This kind of activity shows the lawyers are interested in improving and protecting the law for people with your kind of problem and respected by other lawyers and judges. Here are some examples of law organizations. For employment matters, see the National Employment Lawyers Association (NELA) (please link to www.nela.org). For workers’ compensation organizations, see the Workers’ Injury Law and Advocacy Group (link to www.wilg.org). For other personal-injury matters, see the American Association for Justice (link to www.justice.org). For general trial-attorney needs, see the American Board of Trial Advocates (link to www.abota.org).

c. Do the lawyers from a firm belong to any organizations indicating that they have been honored or selected for membership based on knowledge and experience?

d. Do the lawyers appear to belong the bar associations in their area? Have they served on any committees, sections, or governing bodies?

4. Go to www.martindale.com and use the lawyer search. You can search for lawyers by city, state, and specialty. Lawyers are rated as follows. AV® Preeminent™ is the highest rating, followed by BV® Distinguished™ then Distinguished. We recommend only A-rated lawyers if they are available. One way to get the best of the best is to limit the search by checking the box “Featured Peer Review Rated.” The website is very user friendly.

5. Contact the lawyer or lawyers you focus on, and talk to the lawyer. Learn how the lawyer interacts with clients. The following are some questions that might be helpful: Do you feel comfortable talking with the lawyer? Are they Internet users? Will you have a specific team of people working with you? How do they charge? Can you have Skype conferences or do they have other face-to-face conferencing options through the Internet? Will retainer documents be required and available for review before an appointment?

These suggestions provide a framework on how to locate and evaluate an attorney to help you. The references we refer to are industry standards, so they not subject to as much manipulation as other online approaches, such as reviews, testimonials, or video recommendations on lawyers’ websites.

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Returning to Work Shouldn’t Be This Hard

Today’s post comes to us from our colleague Roger Moore of Nebraska.

Communicate with your doctor and follow a few guidelines to stay safe when you return to work.

In virtually all workers’ compensation cases an injured worker has to return to work in some capacity. Often these are very stressful situations and it is not uncommon for issues to arrise including conflict with an employer over what a safe return to work actually is. Your goal should be to continue to earn a paycheck while at the same time not risking further injury. Many times this is easier said than done.

Whether it’s a supervisor who ignores your restrictions or a human resources department that actively skirts them, issues frequently come up. We see employers do everything from requiring an injured worker to lift or stand more than they should, to pressuring an employee to return to work the day after a surgical procedure.

You can expect that a nurse case manager or HR specialist from your employer is communicating with your doctor’s office about your return to work. Sometimes they may misrepresent the work that they expect you to do upon your return. It is your job to fill in the gaps.

The most important thing an injured worker can do is communicate with his or her treating physician.

  1. Educate your doctor about the job you were doing when you were initially hurt.
  2. When you are assigned to work, educate your doctor about the light duty job you are doing.
  3. If you are assigned to a job that is difficult for you to perform due to your injury, talk to your doctor about what aspects of that job are difficult. The doctor will likely be willing to restrict you from doing that specific activity.
  4. If your employer is Continue reading
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Memo To All Employees: Report Injuries Right Away Or Risk Losing Compensation

Don’t wait to report your work injury!

Today’s post comes from our colleague Tom Domer of Wisconsin.

A U. S. Court of Appeals has ruled that an employer can require an employee to report their worker’s compensation injury even more quickly than required under Worker’s Compensation Law.

A Tennessee machinist experienced pain in her hands when she was transferred to a new position that was “like a muscle strain” when she pressed down on her machine and the pain stopped when she let go. The pain continued over the next two weeks, progressing to numbness and tingling, which forced her to see the Company Nurse. The nurse asked her why she had not reported her pain earlier and she said she wanted to “try to work through it” because she needed the job and did not want to tell her employer she could not do the job.

The next day the company fired her for failing to communicate an injury in a timely manner. She filed a claim with the Tennessee Worker’s Compensation Department and the District Court, which dismissed the claim. On appeal, the 6th Circuit noted that even though State law allowed employees 30 days in which to report a gradually occurring injury, the employer had the right to terminate based on its own policy of not reporting.

Don’t Be A “Tough Guy”

I see these claims often in my practice; claims in which the individual sustains an injury and wants to work through the pain or otherwise see if the pain will go away. Under these circumstances the worker does not report the injury. Since all injuries in worker’s compensation are based on a date of injury, this heroic “non-reporting” ends up biting the worker in the rear. For many employers, no report means no injury.

Gradual Occupational Claims

This “I’ll work through the pain” motive is especially damaging in occupational injury claims, which arise from repetitive motion and not the result of a single trauma. While it is understandable that an employee not be characterized as a “whiner” or “complainer” in the worker’s compensation setting, those who do not report do not benefit.

<em>With over 30 years of experience representing injured workers in Wisconsin, <a href=”http://www.domerlaw.com/Attorneys/Tom-Domer.shtml”>Tom Domer</a> was recently named the 2011 Milwaukee Workers’ Compensation Lawyer of the Year in Best Lawyers. Tom teaches the workers’ compensation course at Marquette University Law School, providing the instruction and training for many other lawyers. He lectures frequently around the nation. He also is a prolific writer, editing the national magazine Workers’ First Watch. He has co-authored over two dozen texts, including with his son and law partner Charlie, <a href=”http://west.thomson.com/wisconsin-workers-compensation-law-2010-2011-vol-17-practice-series/172530/40638030/productdetail?”>West’s Wisconsin Workers’ Compensation Law</a>. Tom earned all his degrees in Wisconsin.</em>

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Dystonia Is Often Misunderstood

Dystonia FoundationToday we have a guest post from our colleague Len Jernigan of North Carolina.

Several years ago I had a client in North Carolina who was an insurance man. While taking some papers out of the back of his car at work he slipped, hit his head and developed a neurological conditon called “Dystonia.” I did some research and discovered that it is a disorder that affects the nervous system, causing muscles to contract involuntarily.

it is a disorder that affects the nervous system, causing muscles to contract involuntarily

Significantly, I also found out it can be caused by trauma, although often dystonia develops without any trauma and may be genetic. The case was denied by the workers’ compensation carrier (and Continue reading

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Employers Must Obtain And Maintain Workers’ Compensation Insurance Coverage

Today’s post is by our colleague Todd Bennett of Nebraska.

Your employer is required by law to have workers’ compensation insurance for you.

Every employer not in agriculture, farm or ranch operations is required to obtain and maintain workers’ compensation coverage for all employees. Those employers who voluntarily and willfully fail to obtain and maintain coverage violate the law and subject themselves to significant risks.

If you are an employee who is injured in the course of your employment and you learn that your employer has not maintained workers’ compensation coverage for you, you can either file a claim against the employer in civil court or file a claim in the Workers’ Compensation Court.

Employers who try to avoid their legal obligations and avoid providing workers’ compensation coverage expose themselves to monetary judgments in civil court, stop-work orders from the Attorney General’s office, injunctions from continuing to operate their business, assessments against their property, daily penalties of Continue reading

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What Every Employee Should Know: Preparing For The Defense Independent Medical Examination (IME)

Prepping for your IME is important. Follow these guidelines to get ready.

After your work injury your employer has a right to make you go to what is called an “Independent Medical Examination” or “IME.” The IME is, basically, an examination by a doctor chosen by your employer who will take your statement of what happened and perform a physical examination. How you conduct yourself during the IME can help or hurt your case. I strongly recommend that all injured workers follow the recommendations below in preparing for an IME.

Before going to the IME, spend an hour or two writing down the history of your injury, including:

  • your current complaints based on the injury,
  • what things cause your injury to be aggravated,
  • and what care and treatment you have been given for your injury.

You will have only a limited amount of time to describe these things to the IME doctor. Therefore, you should take your written statement to the IME and hand a copy of it to the doctor. It is important that you have a well-organized statement. Then make sure what you say to the IME doctor is in keeping with your written statement. Save the written statement and give a copy of it to your attorney. He or she will be able to use the statement if the things you say in it do not end up in the IME doctor’s record.

You will probably be asked to describe your pain. Since pain is subjective, it is often difficult to describe. You might find it easiest to describe activities that worsen your pain. You should have a list of everyday activities that increase your pain. Be as truthful, accurate, and complete as possible.

Even if your care before the IME is poor, I recommend against complaining bitterly about that care. Instead focus on just describing the facts. If true, tell the IME doctor how the care so far has not worked and yet the company doctor continues giving you that same useless care; or how the company doctor spends more time communicating with the company representative than with you. Recall and apply that old admonition from “Dragnet”—“just the facts, sir, just the facts.”

After the IME, your attorney will be interested in knowing exactly what went on in the examination. Thus, after the IME, take at least one-half hour to write down as much as you can remember of the following:

  • what the doctor said,
  • what you answered,
  • what the doctor did,
  • and what if anything was dictated into a recorder,
  • the time that you arrived at the office (be as accurate as possible),
  • the time that you were placed in the examining room,
  • when the doctor entered the room,
  • and when the doctor left the room.

It may be important to have an exact record of the time the doctor spent with you in the examination room.

You need to spend some time to prepare for the IME. By following the guidelines set forth above, you will provide a truthful, accurate, and complete statement of your condition. Hopefully, the IME doctor will then provide your and your employer’s attorneys with similar findings, diagnosis, and recommendations for treatment. Of course, you should spend some time talking to your attorney before any IME. Good luck!

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The 12 Things You Must Do If You Are Hurt At Work

What to do if you are hurt at workInjured workers call me all the time asking me what they need to do to make sure they protect their legal rights.  If you are hurt on the job, whether it is due to an acute traumatic injury (like cutting yourself on a saw), cumulative-trauma injury (like carpal-tunnel syndrome) or some other job-related injury, there are several basic things you should do. If you do not do any of the things on the list below, you may lose your rights under Iowa’s workers’ compensation law.

Although there may be rare exceptions to this list,  following it will leave you reasonably secure that your rights are protected:

  1. Report the injury. By “injury,” I mean almost any condition including but not limited to (a) an acute traumatic injury, (b) a cumulative-trauma injury, or (c) a disease or a hearing loss. You should report the injury to your supervisor or company nurse (for clarity we’ll just call these people your Supervisor from here on out), making clear your injury was caused by work. Under Iowa law, you need to make the report within 90 days of the date of your injury.
  2. Make sure your Supervisor prepares a company accident report.  If your Supervisor won’t prepare the report, Continue reading