Category Archives: Workers’ Comp Q & A

How To Select A Good Lawyer For Your Problem

Today’s post comes to us from Rod Rehm of Rehm, Bennett & Moore.

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). For workers’ compensation organizations, see the Workers’ Injury Law and Advocacy Group. For other personal-injury matters, see the American Association for Justice. For general trial-attorney needs, see the American Board of Trial Advocates.

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 Martindale and Hubbell 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.

Prior results do not guarantee outcomes.

Returning to Work Shouldn’t Be This Hard

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

Today we have a guest post by our colleague Roger Moore of Nebraska.

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

Prior results do not guarantee outcomes.

Beware Part Time Employment

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

This post illustrates some of the differences in the workers’ compensation laws in each state. As Tom mentions below, New York’s law is a little different from Wisconsin’s law. Unlike Wisconsin, New York allows for an injured workers’ average weekly wage to be calculated based upon concurrent employment. That is, the New York workers’ compensation law calculates average weekly wage based on the injured workers’ total compensation from all jobs. For example, if a worker is employed at the Goose Island corporation making $600/week and also has a second job at Troegs Incorporated where he makes $400/week, and the employee is injured at either, New York’s workers’ compensation law calculates his average weekly wage based upon the combined weekly salary from both employers, which is $1,000.

Workers’ Compensation will only cover you for the specific job on which you got hurt.

Wisconsin pays worker’s compensation benefits based only on the job on which an employee works, even if the employee’s injury makes it impossible for him to work in his regular job. In these difficult economic times, many workers are forced to take a second part time job to supplement their incomes. Unfortunately if the worker is hurt at the part time job, only the wages earned from the part time job will be used to calculate worker’s compensation benefits, even if an injury on the part time job means the worker will not be able to return to his full time job.

For example, a cook re-hired at a former wage by the restaurant where he was hurt could not claim a Loss of Earning Capacity based on his inability to return to his second job as a cab driver. Continue reading

Prior results do not guarantee outcomes.

What If An Independent Medical Examination Doctor Doesn’t Agree With My Doctor?

IME doctorToday’s wise words come to us from my colleague Roger Moore of Nebraska.

As I have written previously,  in Nebraska, you have the right to choose your family doctor to treat you for your work injury.  For purposes of the workers’ compensation court, that person becomes your “treating doctor.”  However, sometimes an employer or insurance provider selects a non-treating doctor for an “independent medical examination” (IME). According to the workers’ group National Association of Injured & Disabled Workers (NAIDW), IMEs are used for three reasons:

  1. “to determine the cause, extent and medical treatment of a work-related or other injury where liability is at issue”
  2. “whether an individual has reached maximum benefit from treatment”
  3. “whether any permanent impairment remains after treatment”

When an IME is scheduled, this probably means your employer or the insurance company is trying to fight some aspect of your workers’ compensation benefits.  An IME doctor frequently bases his or her findings on what is often a very brief visit with a patient.  Sometimes they don’t even perform a physical examination before rendering their opinion.  Rarely do they issue opinions that are favorable to an injured worker.  For that reason, when an examination like this is scheduled, my policy is to Continue reading

Prior results do not guarantee outcomes.

Nannies, Baby-sitters, And Comp Coverage: Yes, We Still Have “Domestic Servants”

Today we have a guest blog from our colleagues Nathan Hammons and Charlie
Domer of Wisconsin.

Most families in Wisconsin have hired a baby-sitter or nanny to watch their children. The pay generally is in cash for a defined period of time. Does the situation create an employer-employee relationship, entitling an injured baby-sitter to worker’s compensation benefits?

Under the Worker’s Compensation Act, most employers in the state are required to provide worker’s compensation coverage for their employees. Employers of ‘domestic servants’, however, are completely exempt from the requirement. (Wis. Stat. §102.07(4)(a)1.) Unfortunately, neither the Act or Wisconsin courts provide a definition. So, what exactly is a domestic servant?

Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

The name ‘domestic servant’ is antiquated. It brings up old images of butlers, maids, and other people toiling away in the mansions of royalty and the wealthy. Indeed, search Wikipedia for ‘domestic servant’ and you’ll be directed to ‘domestic worker’, the modern term and one that doesn’t imply inequality in the workplace. Without citation or authority, a Department publication indicated that it has “consistently ruled that persons hired in a private home to perform general household services such as nanny, baby-sitting, cooking, cleaning, laundering, gardening, yard and maintenance work and other duties commonly associated with the meaning of domestic servant, meet the definition of domestic servant intended by the Act.” Significantly, the Department appears to treat the prevalent positions of in-home baby-sitter or nanny as exempt from the Act, which could expose the in-home “employers” to general negligence claims.

Consequently, nannies Continue reading

Prior results do not guarantee outcomes.

Workplace Stress Can Make You Physically Ill

workplace stress

New studies reveal that workplace stress can make you sick.

Today’s post comes to us from Jon Rehm from Nebraska. While Jon’s post mentions Nebraska law, you should contact our office if you have any questions regarding a claim you might have under New York law.

Serious disabling medical conditions can arise from workplace stress. A recent study showed that people working long hours (11+) are more than twice as likely to experience major depression than those who work only 7-8 hours a day. Another study discovered that stressed workers have a 67% greater risk of heart disease. And other studies mention that “long working hours” lead to more risks of anxiety and a reduced ability to both think and sleep well.

Marianna Virtanen, one of the newest study’s authors, recently gave some tips to workers on ABCNews.com. One of her tips is to: “Make a distinction between work and leisure; don’t skip your holidays; take care of your health and well-being, especially sleep and exercise.” With Americans now working more hours than many of their counterparts in other countries, workers need to be proactive in taking caring of themselves.

But it isn’t just up to the workers. Psychological illnesses and depression cost companies money and result in less worker productivity, according to the CDC’s National Institute for Occupational Safety and Health. Without buy-in from employers and workers, the personal and corporate costs from psychological illness will never be reduced.

Unfortunately, Nebraska law Continue reading

Prior results do not guarantee outcomes.

Misdiagnosed Worker Can Amend The Cause Of Injury More Than 2 Years Later

It isn't always easy to know what is causing pain. Multiple doctors may get it wrong. Be persistant.

The Appellate Division Third Department issued a decision last week (Searchfield v. Lowe’s Home Centers) that is interesting case because it pertains to the establishment of an injury that was originally misdiagnosed.

In October 2005, an employee was injured at work while lifting a hot water heater. As a result of the injury the employee went to the emergency room. He was diagnosed by an emergency room physician with myofascial strain of the legs and hips. A November 2005 physician’s report diagnosed the claimant with hip/thigh sprain and sciatica. The later medical reports focused on the groin, lower back and leg pain.

In July 2006, a Law Judge established the claim for a work related injury to the claimant’s lower back. However, the employee continued to report worsening symptoms in his hip area. In 2009, the claimant saw an orthopedic surgeon. The doctor performed a MRI of the right hip. The MRI revealed a right hip labral tear that required surgury. According to the surgeon the claim was originally misdiagnosed and the claimant had, in fact, sustained injuries to his right hip as a result of the October 2005 accident.

The claimant applied for a hearing to amend the claim for the right hip. The Judge ruled that the right hip claim was time barred (pursuant to Workers’ Compensation Law Section 28). This states that a claim for a causally related condition must be made within two years of the date of accident. On appeal the Board Panel reversed and the Appellate Division affirmed the Board Panel.

The Appellate Division stated that the early medical reports reflect initial concerns relating to the claimants hips. Also there was supporting medical evidence that the claimant’s ongoing pain was the result of a labral tear in the right hip, a condition which is often misdiagnosed as a low back injury. The Court went on to add that the claimant could not have filed a claim for a causally related right hip injury at the time of the accident because it was not properly identified and diagnosed.

This case is important as it allowed the amendment of a claim for a serious injury that misdiagnosed early on in the case.

You can find the entire court decision here.

 

Prior results do not guarantee outcomes.

Can I Move To Another State If I Have A Work’ Comp’ Claim?

Yes, you can move to a different state though you have a workers' compensation claim in New York.Question: Can I move to another state even though I have a workers’ compensation claim in New York?

Answer: Absolutely!

Many claimants move to other states during the course of their workers’ compensation claims. Here are the top five things to consider when moving to another state:

1. Tell your workers’ compensation attorney that you are moving, and update your contact information such as telephone number and address.

2. Find a doctor in your new state that handles workers’ compensation claims in New York state. A simple Google search should give you several hits. Be sure to ask if the doctor handles workers’ compensation claims for claimants.

3. As there is often confusion at the initial stages of treatment as to why a patient is seeing the doctor, be sure to tell your doctor that you have an ongoing workers’ compensation claim in New York for which you need continuing treatment.

4. Have your Notice of Decision authorizing medical treatment handy! This is how the doctor knows that he or she is allowed to treat you for your work-related injury. If you do not have a copy of that Notice of Decision or have lost it, ask your workers’ compensation attorney to send you a copy ASAP.

5. Be proactive. This is your workers’ compensation claim: you have a right to your medical records. Ask for them after each visit! Give your workers’ compensation attorney the doctor’s contact information, including telephone number, fax number, and address. Get in touch with your workers’ compensation attorney if the doctor is having any difficulty getting your medical treatment paid for by the insurance carrier.

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Prior results do not guarantee outcomes.