Social Media

You have a Facebook page; You tweet; You Instagram – and you have an injury at work.

BEWARE!

Whether you intend to or not – you are leaving an evidence trail. While you may believe what you are posting is just for your friends and family, the information may be discoverable. That is a fancy way of saying you may be asked or required to hand over any information which you posted or shared which, in any way, touches on your injury. That information may be used to create doubt about your injury or your work limitations. It can be used to question your credibility and your reliability as a witness.

It is not likely to be something obvious. There isn’t going to be a ‘smoking gun’ admission that you are faking the whole thing. It’s going to be something subtle. A picture of you dancing at a wedding the day after your knee injury. Sure, your knee was hurting you, but it was just one dance . . . A picture of you and your buddy at the football game (GO HAWKS!) But you just testified you can only stand for 15 minutes  . . . ? A picture of you holding your two-year old Granddaughter . . . ‘Look how big she’s gotten!” . . . . .  Well, how much does she weigh? Why can’t you return to work at your job which requires lifting the same weight?

It’s not that these activities are a secret. It’s more that defense counsel would never think to ask you about something so specific, without the picture floating around out there. The first thing a good defense attorney does when they get a new case is look up the injured worker on Facebook. If everything is private, he’s not going to see much. Maybe there follows a formal discovery request for social media posting, maybe not. That decision will depend on what’s at stake in any given litigation. But imagine the ‘Ah Ha’ moment when the the postings aren’t private. Or, there is a rich and detailed instagram record of . . well . . everything that you’ve done since the date of your injury.

Social Media is so instant. It is a very contemporaneous  record of what you are doing, saying, thinking, and sometimes even feeling.

Some of it is very, very permanent.

 

It’s complicated

If you have a Longshore claim with an unscheduled injury, your permanent disability is based on your loss of wage earning capacity. If you have a scheduled injury, your permanent disability is based on a number of weeks of compensation for that particular type of injury.

What the heck does that mean?

Well, I can provide a fairly simple explanation but in reality, it’s complicated.

First, what is the difference between a scheduled an unscheduled injury? For the most part, any injury that is not to an extremity is considered an unscheduled disability. Anything related to the spine, like a back or neck injury is unscheduled. Shoulder injuries are unscheduled. Hip injuries have been argued both ways, but I generally consider them unscheduled. Head injuries and mental health conditions like PTSD are considered unscheduled. Arms, hands, legs, feet, hearing, and vision are all scheduled injuries.

When it comes to compensation for permanent disability, or PPD, what does it mean that the injury is “unscheduled” versus “scheduled”? Scheduled injuries have a schedule of benefits outlined in the Longshore statute which are paid for permanent impairment. For example, loss of an arm is paid at 312 weeks of compensation, loss of the big toe is compensated at 38 weeks of compensation. If the injury results in the partial loss of use, then permanent impairment is compensated as a percentage. That’s why you hear things like a torn meniscus in the knee is a 2% impairment, compensation for permanent disability is paid for 2% of 288 weeks, or 5.76 weeks of compensation. So long as you can perform some type of work, any kind at all, a scheduled impairment is paid based on the schedule, without consideration of your individual circumstances. The concert pianist who losses a finger is compensated the same as the truck driver who loses a finger. That may sound unfair, but the idea is to reduce the uncertainty and litigation surrounding permanent impairments. In reality, we still have litigation and uncertainty, it is just focused on the impairment rating itself, not the established value for the loss of the scheduled member.  Having strong and credible medical support is crucial to receiving fair and just compensation for your injury.

Establishing permanent impairment for an unscheduled injury is like the wild west. Compensation for your permanent impairment when you have something like a back injury or PTSD, is based on the effect of the injury on your earning capacity. For example, you could make $40 an hour prior to the injury, but because you are now limited to lighter work, you can only make $10 per hour. Your permanent impairment is 66 2/3% of the difference between those numbers.

Comparing average weekly wage at the time of injury to post-injury earning capacity is easy as pie if you have actually returned to some type of employment after recovering from your injury. More often than not, the injured worker has not returned to work when this assessment is being made, so we are all guessing about current earning abilities. There may be competing Functional Capacity Evaluations with vastly different estimates of abilities and limitations. Transferable skills will be outlined and debated and debunked. There will be Job Analyses approved by some physicians and disapproved by others. There will be Labor Market Surveys, some accurate some bogus.

Like I said, it’s complicated. The value of your permanent impairment, and in turn the value of your claim, will most definitely rise and fall with the strength of your position on all of these factors. Your employer and its insurance carrier are going to be aggressive in developing their positions, and they will have the help of really experienced defense counsel. That doesn’t mean your sunk. It does mean you need to get your ducks lined up. As your medical condition stabilizes and you start thinking about what’s next, get some help. Talk to an attorney so you understand what’s coming, and can put your best claim forward.

 

Legal Help

I get quite a few questions on this blog and on the phone which start with, “I already have an attorney . . ” Which begs the question – Why don’t people feel comfortable asking their attorneys questions? Are they scared? Intimidated? Is the attorney impatient or in a hurry?

Injured workers have to be good consumers. If you are paying for a service, you should expect the person providing that service to take the time to answer your questions.  Write your questions down. Make an appointment to meet with your attorney. Ask your questions, and listen to the answers.  It might not be the answer you want or were hoping for, but you are entitled to an answer.

Keep in mind, there are no dumb questions. If you have a workers compensation claim, you are in a strange new world of procedures, forms, acronyms, rules and guidelines.  Attorneys are here to help you figure out your next steps, and to insure you are getting the benefits and help this safety net is supposed to provide to you after a work injury.  We’re here because sometimes the system doesn’t work like it is intended to work, and we’ve seen it before and can help you through it.

You are ultimately in control of any decisions to take action on your claim.  To file an appeal or not; to litigate or not; to accept the return to work offer or not. You are in control, because the claim belongs to you and because the consequences are yours. You can only make good choices about what’s next if your questions are answered and you have the information you need to make informed decisions.

Ask the questions – and insist on answers.

 

Future Medical Care- Longshore

If you have a Longshore* claim, and have not settled future medical care with an 8(i) agreement – then you have lifetime medical coverage for conditions related to your injury. That sounds great – but I like to tell my clients this does not mean treatment is  automatically authorized, it  means you have the right to fight about it.

The responsible carrier is always going to look for an argument that treatment is related to some new injury or workplace exposure. Such a new injury or worsening related to work activities can serve to shift liability to a more recent employer. That is not necessarily a bad thing – If your condition has worsened or been aggravated by a new injury or work conditions, it may well support a new claim. This may actually benefit the worker if wages have increased over time.

Whether to seek medical care under an existing or older Longshore claim versus filing a new claim will depend in large part on individual circumstances and the opinions of your treating medical provider. Either way, sorting out your best arguments based on your specific circumstance is something a qualified longshore attorney can help you with.

  • This includes non-appropriated fund and DBA claims, which are covered through extensions to the Longshore and Harbor Workers C0mpensation Act.

This post is a reminder that it is OK to pick up the phone and call me.  I know that sounds a bit odd. But, I can tell from the stats on this blog that traffic is up since the first of the year. I get it, you have questions. You’re an injured worker; it’s the first of the year; you want to get moving- take charge of your claim. Nope – take charge of your life again. So, you’re noodling around on ‘the line’ to see if you can get your questions answered.

You can. Just Call.

I had a couple in here a few days ago. Spent an hour or so answering their questions. She didn’t need an attorney, but she felt more at peace from having talked to one. They stopped at our front counter on their way out to pay their bill. Nope. That’s not how it works. Consultations are no charge. If you need an attorney, then we can talk about how fees are paid (hint: it’s a percentage of benefits obtained on your claim) But I am always happy to answer questions, walk you through where you are in the process and explain what to expect.

Workers Compensation claims are weird animals in a weird legal/administrative world. Spend some time talking to someone who understands the lingo and the terrain.

Port of Tacoma

Just saw a super cool aerial video of the Port of Tacoma at the ILWU 23 Home page.

http://www.ilwulocal23.org

The fly over of the cranes is pretty spectacular. I represent workers who are injured at the Port, so sometimes I forget it can be a beautiful place. The aerial is a different view then I suspect most Longshoremen (and women!) appreciate, day to day. It’s worth a few minutes – and kudos to those responsible for the video!