Vol. 7, No. 5

July, 2000

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Quite often, I am asked by individuals who have suffered a work injury and are receiving workers' compensation benefits if they need an attorney, and if so, why. In most instances, these individuals have been advised by the insurance carrier's adjuster that they don't need an attorney. The adjuster will reassure an individual that the claim will be handled in a prompt, professional and legal manner. The question one must ask themselves is why would an insurance company care if you are represented by an attorney? The answer is obvious. Without an attorney, you are at a distinct disadvantage with respect to your workers' compensation claim. Without the advice of an attorney, the injured worker is at the mercy of the insurance company with regards to his/her rights and obligations while receiving workers' compensation benefits. Make no mistake about it, a worker' compensation claim is an adversarial process. The instant an insurance carrier begins paying an individual workers' compensation benefits, they also begin the process of attempting to terminate those benefits. Virtually everything the carrier does from day one is designed to put the claim in a position to be terminated. Thus, you need an attorney to level the playing field and keep the carrier from illegally or unethically terminating your benefits.

However, I certainly recognize that it is unlikely an individual on workers' compensation can afford to pay an attorney. Understanding this, for those workers' compensation cases that are not in litigation, I have often agreed to take on a case in an advisory capacity for little or no fee. I am more than happy to answer questions a Claimant may have regarding their rights and obligations while they are receiving workers' compensation benefits. I will continue to do this as part of my practice.

As I indicated above, insurance companies will often improperly terminate or suspend an unsuspecting Claimant's benefits. There are various ways this result is accomplished. The more common include:

(1) Independent Medical Examinations (IME). The so called independent medical examination is an examination of the Claimant on behalf of the insurance carrier with a doctor of the carrier's choosing. The IME physician is likely to render an opinion that the work injury is either resolved or that the Claimant is capable of returning to work. However, this opinion does not give the carrier the right to stop payment of benefits. Unfortunately, I was recently retained by an individual whose workers' compensation claim was denied based on the fact that an IME physician opined that his work injury had resolved. The carrier then terminated his benefits. This gentleman has now gone more than 2.5 years without benefits because of this illegal act by the carrier. Among other remedies, we have filed a Penalty Petition with the Workers' Compensation Bureau for this unconscionable act.

(2) Rehab Nurses. More and more, I have seen the use of rehabilitation nurses in compensation claims. A carrier will assign a rehab nurse to an injured worker's case. This individual has one function and one function only, to get the Claimant off compensation. Given an inch, rehab nurses will take a mile. They will go so far as to begin scheduling Claimant's doctor appointments (to fit the rehab nurses' schedule, not yours). Rehab nurses will attend the doctor's appointment with the Claimant. They will then attempt to cajole the physician to return the Claimant back to work no matter if the Claimant is physically unable to return to work. Recently, I had a case where a rehab nurse had done just that. The Claimant was forced to return to work and in a few short days was fired. The lesson is simple. Stay away from these people. There is nothing in the workers' compensation law that requires the Claimant to have any dealings whatsoever with the rehabilitation nurse. Further, do not allow the rehab nurse to make your doctor appointments and by no means allow the rehab nurse to sit in on your appointments with your doctor.

(3) Company Doctors. This creates similar problems as that of the rehab nurse. Unfortunately, most company doctors are biased toward the employer. They will feel a great deal of pressure to return the employee back to work, regardless of the employee's physical condition. In a situation similar to the Claimant who was involved with the rehab nurse, a few months ago I was retained y an individual who was released to return to work by the company doctor to a physically demanding construction job. By the end of the week he was laid off. Of course, his compensation benefits were not reinstated. The employee then went to see a doctor of his own choosing who actually put the Claimant's injured foot in a cast. We are currently fighting to get that individual's benefits reinstated. It is important to note that in most cases, the employee does not have to treat with the company doctor. There are very strict rules the employer must comply with to obligate an employee to visit a company doctor. Further, an employer can never require an employee to visit a specific doctor. The most an employer can do is require an employee to visit one of several doctors on an employer's list. Lastly, an employee is only obligated to treat with the company doctor for the first 90 days. After that, an employee can treat with a doctor of his own choosing.

(4) Job Referrals/Funded Employment. The issues involved in the job referral process and in the area of funded employment are too numerous to discuss in this newsletter. However, if the carrier has asked you to meet with a vocational rehabilitation specialist and/or has begun the job referral process, please seek representation by an attorney. The Claimant must be very careful how they handle this process because he/she can lose their benefits, even if the job referral process does not result in new employment.

(5) Workers' Compensation Forms. Never, ever sign any forms forwarded to you by the workers' compensation carrier without reviewing them with an attorney. The carrier will often times send documents such as a Final Receipt or Supplemental Agreement and indicate to the Claimant that they will not release their check until these documents are signed. You are under no obligation to sign this paperwork to receive your benefits. On several occasions, I have been asked to represent Claimants who have signed a Final Receipt. Signing of a Final Receipt indicates that the Claimant's injury has resolved. Claimant's are pressured into signing these documents, even when their injury is still on-going in order to receive their benefit checks. Once the Final Receipt is signed, the employer/carrier is under no further obligation to pay any benefits in a claim, including medical benefits. Again, do not sign any forms forwarded by the carrier without speaking to an attorney.

Lastly, a word on surveillance. If you or anyone you know is receiving workers' compensation benefits for more than a short period of time, you should assume that at some point you will be placed under surveillance. I understand that individuals must live their lives regardless of what restrictions their doctors have them under. However, if you are seen doing anything beyond your doctor's restrictions, things as innocuous as carrying groceries or taking out the garbage, you can be sure that video surveillance is going to be used against you in a workers' compensation proceeding. Therefore, be very mindful of your restrictions and no matter what the situation, do not engage in any activity beyond those restrictions.

If you have any questions about the issues addressed in this article or in regards to workers' compensation claims in general, I would be more than happy to discuss them with you.