This is a question I am often asked by injured workers who contact me for a consultation. This is a great question to ask and one that I enjoy answering because the answer really goes to the heart of what a worker’s compensation attorney does. Just like any other filed of law, clients don’t really know what their workers compensation attorney does for them due to the very complex nature of the rules and the laws involved in a work injury case. But when the outcome is beneficial, they are thankful for the help! Just like when you go to the doctor, the exact mechanism of disease may be too complex to comprehend so we must have faith and hope that the doctor knows what to do, even if the doctor can’t completely explain it to us.
I am going to here, give you a little insight, despite the complexity, of what a worker’s compensation attorney can be faced with, when an injured worker calls asking if they need to hire a worker’s compensation attorney. Generally, I tell people that the only time you don’t need a workers compensation attorney to represent you in your work injury case is when the injury requires no more medical treatment beyond first aid, there is no lost work time and you are back to the way you were before the injury within a few days or perhaps a few weeks. For all other situations, you are well advised to call a worker’s compensation attorney for a comprehensive and confidential consultation. All consultations in work injury cases are free of charge.
What I am about to tell you is all true (although the names are changed) and happened to me very recently and is the inspiration for me to write this to you. First I will give you the basic facts that mattered most to the issues in the case and then I will provide you my analysis of how we need to position the case to correct errors and what arguments need to be asserted on behalf of the client to position his case for the best possible outcome for him, following the rules and laws of the work comp system.
First Some Background Facts:
Pat, a 52-year-old male, called for a consultation and provided me the following information:
- 30-year employee working as a food and beverage director
- First injury noted as a specific injury in 2012 to the neck and right shoulder with some medical treatment provided and released by his doctor in early 2013 with a 5% disability to the right shoulder. No lost work time due to the right shoulder or neck symptoms.
- Second injury noted as a specific injury in 2016 to the low back, but Pat continued to work until February 2017 when he first went out on disability to have back surgery; returns to work October 2017 and works another 6 months until April 2018; stops work in April 2018 due to severe pain in the low back and has a second surgery and is declared by his surgeon to be a “failed back syndrome” patient post fusion surgery.
- Pat submitted to a PQME evaluation requested by the claim adjuster for the low back injury in 2016, but not for the prior injury to the shoulder or neck. The PQME states the disability for the low back is 25% under the Diagnostic Related Estimate (DRE) of the AMA Guides to impairment. The scale used allows the doctor to pick a percent between 25% to 28%. The doctor noted 10 out of 10 pain in the low back with radiation down the legs and weakness and motor strength loss on nerve testing and significant loss of activities of daily living (ADL). Despite the severity of the injury and the fact that the back surgeon noted “failed back syndrome”, the PQME did not mention failed back syndrome, gave Pat the lowest end of the DRE percentage and apportioned 20% of the overall disability to spondylosis (general wear and tear of the spinal column).
- Pat’s last day he ever worked is April 2018. He has applied for social security disability, claiming he is permanently totally disabled from working due to his work injuries.
- Pat has never hired an attorney in the past to represent him for any injuries, meaning he has been acting as his own attorney. Pat’s first question to me is “Do I need to hire an attorney?”
Developing The Case Plan: (Getting Inside The Head Of An Experienced Work Comp Attorney)
In my opinion the above facts are all important and critical to putting together the best possible case plan for the most successful outcome.
Why is the case plan so important? Because settlements don’t just “happen”. Settlements must be planned carefully and well in advance, early in the case, to maximize benefits for the client. The old saying that “if you fail to plan, plan to fail” is very true in workers compensation injury cases. Why, because the claims adjuster has a case plan for every case; to get out of the case as cheaply as possible. This is the opposite of what the injured worker is trying to achieve; quality medical care and ALL the benefits the law allows.
It astounds me that few workers compensation attorneys, particularly those large firms that advertise on television and the radio, have any case plan, much less communicate it to their clients. If your attorney can’t verbalize, in simple terms, the case plan for your case at any time during the pendency of your case, you should be concerned. You should be able to have a clear idea in your head of the goals for you case, both short- and long-term goals. And this needs to come from your attorney, or else hire one who can provide clear direction for you. You should never be in the dark about the goals for your case. Please note I said “your case”; take ownership of it and develop a partnership with your attorney so you both are working together toward the common goal of achieving the best medical care for YOU and the maximum allowable benefits for YOU.
Analysis Of The Facts Considering The Laws And The Case Law Brings To Light A Case Plan For A Successful Settlement.
Pat explained that the workers compensation insurance carrier was offering $34,000 to “cash out” his case. He was unsure if that offer was for the low back only or also included the right shoulder and neck injury.
The issues presented by the facts:
- Is Pat 100% permanently totally disabled (PTD) due to his low back injury alone, or in combination with the right shoulder and neck injuries or is he less than 100% PTD? What is the value of 100% PTD if we were to prove it up? What is still needed to prove up 100% PTD, if anything? Analysis under the LeBoeuf case, the Dahl case, the Almaraz /Guzman line of cases, etc. Do we need to hire a vocational expert to analyze if Pat can reasonable return to work or is 100% PTD? If so at what point in the case should the VR expert be hired? The attorney will be paying this cost up front on behalf of the injured worker in the range of $3,000 to $8,000 dollars.
- Did the PQME properly apportion 20% of the current disability to non -industrial (not work related) spondylosis (wear and tear injury/ disability)? This issue needs analysis considering the fusion surgery using the concept that the preexisting condition has been surgically removed and no longer exists; Labor Code 4663 and case law regarding no apportionment to disability caused by medical interventions under the Hikida and McFarland cases.
- What is the true date of injury? For the 2012 right shoulder and neck injury case the primary doctor says there is no specific event of injury but rather the injury is due to cumulative trauma (CT). For the 2016 date of injury the PQME says there is no specific event of injury but rather the injury is due to cumulative trauma. What is the “legal date of injury” in a cumulative trauma case. See Labor code section 5412. Are there two CT cases or just one? see the Western Growers (Austin) case and Coltharp case.
- Did the PQME properly use the AMA Guides to impairment when he provided his whole person impairment of 25% for the low back? The answer to this question requires many hours of study and seminars from experts regarding the proper use of the AMA Guides as well as solid knowledge of the how the case law allows a doctor to deviate from the strict rules of the Guides when providing a disability rating to come up with the most “accurate” rating. A deposition of the doctor may be required to show him how the Guides may not have been properly applied and so the attorney can offer an alternative rating analysis that provides a more accurate (higher disability rating) and ask the doctor to agree.
- What other health conditions have developed as a result of the work injury? Any other symptoms or conditions that develop as a result of the work injury become part of the work comp case and the workers compensation insurance company must pay for 100% of the medical treatment, even if the doctors say no more than 1% of the cause is due to the work injury! In Pat’s case the PQME reviews a medical report showing that Pat’s blood pressure readings are 147/100, high blood pressure. Pat advises that despite this, no doctor told him he has high blood pressure or even mentioned the finding of high blood pressure. Pat also advises that he has been experiencing a lot of stress, depression and anxiety due to his pain symptoms, loss of sleep and inability to work. So, the high blood pressure and heart as well as emotional trauma must be added to the claim so a worker’s compensation doctor to provide a consultation and advise if the work injury and its effects are causing any of the other symptoms. If so, work comp must pay for all the treatment and any disability caused by the internal and psychological conditions.
- What past injuries or other health conditions does Pat have that may support a claim for benefits from the Subsequent Injures Benefits Trust Fund? Pat advises that he has been diagnosed with a heart valve condition that he was born with; a prior injury to left knee 35 years ago, and 80% loss of hearing in his right ear diagnosed about 8 years ago. Pat may be entitled to be paid for each of these non-work-related conditions when the disability for each of them is added to the work injury disability so long as the combined disability is at least 70% of more. This fund pays benefits every two weeks for lifetime and is a potentially very valuable source of additional benefits to Pat, especially if he will not be able to return to gainful employment. This fund may be a source to pay benefits based on 100% PTD if we are unable to prove 100% as a result of the work injury alone.
Pat’s case plan may look something like this.
- File a cumulative trauma claim for the entire period of employment up to February 2017, but not including the short 6 months he returned to work from October 2017 to April 2018. Why? if the return to work is considered a second CT period it will likely destroy his chance of obtaining a 100% PTD award as some of the disability will be apportioned to the second short CT period. How does this look in real numbers? Here it is:Assuming 90% to CT ending February 2017 = 90% PD (max rates assumed) = $218,442.00Assuming 10% to second short CT = 10% PD = $8,772.00Assuming only 1 CT ending February 2017 = 100% PD present value = $1,488,000.00
So, the workers compensation adjuster and their attorney are going to tell Pat and fight hard to maintain that there are multiple CT periods in this case; their case plan is easy to see; divide and conquer! Yes, we know their case plan simply by developing our own.
- Elect a new Primary Treating Physician (PTP) that is a known patient advocate and less of an insurance friendly gate keeper of insurance profit. In short, a doctor who does not put money between the doctor-patient relationship and is not afraid to tell the workers compensation insurance company the true level of disability that Pat has even if its 100% PTD. Have this doctor discuss the date of injury issue and ask if he or she can agree with us that there is no increased disability from the short 6 moths return to work period; ask the doctor to confirm “failed back syndrome case” and the disability is caused by the two surgeries and therefore to agree the apportionment is 100% to the work injury ; ask the doctor to analyze for permanent total disability. In my 27 years’ experience, doctors rarely if ever will, on their own, without being asked, analyze for permanent total disability. Who is going to ask them? the claims adjuster or its defense attorney? Ask the doctor to review the issues we have with the PQME reporting and write a rebuttal to the adverse PQME opinions.
- Demand the workers compensation insurance company pay wage loss (TTD) for the right shoulder and neck injury case from 2012 since the real injury date is 2017. Note the claims adjuster denied paying any TTD for the right shoulder and neck injury claiming its beyond 5 years from the date of injury and so they don’t have to pay him anything even though he is currently under the doctors care and TTD for the right shoulder and neck. Technically the adjuster is correct about the 5-year limit to time to get TTD, but she is wrong about the date of injury! Pat has been TTD for more than one year and receiving no benefits when he should be! He is currently owed more than $75,000 in back TTD benefits.
There is more I can add to this but the above represents a good start to the case shows what we can do on day one of our representation.
To recap, the claims people want to settle the claim for $34,000 and pay no TTD for the 1.5 years of TTD, approximately $78,000, which is currently past due, and ongoing TTD payments as well.
Back to the question, Should I hire a worker’s compensation attorney? I will let you decide.