What to bring to that first appointment

I try to speak with a potential new client on the phone before that first appointment is scheduled. Sometimes I’m able to answer a quick question, and the worker does not really need an attorney, yet.  But when an appointment is necessary, I am often asked, “What should I bring with me?”.

Injured workers come with a variety of organizational styles, and I’ve seen them all.  Some workers have carefully saved every letter and medical report, and logged every phone call. Some workers have stacks of envelopes with the papers still in them (sometimes unopened!) Some workers keep nothing. Some workers have spouses who keep track of and organize everything related to their claims.

So here’s the truth. The first thing I am going to do after filing my Notice of Appearance is get a complete copy of the claim file. If I’m working on a State L&I claim, I’ll request a copy of the document imaged microfiche, but I usually have access to the complete
file through the Claim and Account Center within a few days. If the claim is Longshore or DBA I will request  a complete file from the insurance carrier and I also routinely get a copy of the Department of Labor file.

Once I receive the file, I’m going to review it – start to finish. This file is going to have all the medical records, correspondence, payment records, IME reports and vocational records. I’m going to have a really thorough understanding of what has happened to date, and what present problem needs resolving. I’ll know what information I am missing, and I can easily request it.

Which is all by the way of saying, you do not have to track down all your medical records to bring to me. You do  not have to scour your home for every scrap of paper related to your claim. It is all in the file, and I’m going to get it and read it. I tell potential clients to bring with them whatever prompted their call to my office.  It might be a letter from the claims manager,  a notice of controversion or Department Order. It might be a vocational report, or  medical report. You received something which caused concern or which you did not understand. Bring at least that with you to your first appointment.

That is enough to let me know what type of claim you have, who I need to contact to file a notice of appearance and request the file, and what immediate problem or dispute is at issue. I’ll be able to ask enough questions when we meet to get the ball rolling. Hiring an attorney is supposed to provide some relief from the stress. So, let’s start by making that first appointment as easy as possible!

Settlement Agreements

I am at a bit of a loss to explain the new provision in our workers compensation law which allows for lump sum settlements. (HB 2123)    It is a poorly written provision, passed with no public hearings, for purely political reasons. There are so many unanswered questions and issues and processes which will need to be developed, that I cannot begin to explain to you how these new settlements will be negotiated, approved, or paid. So, definitely topics for another day as we know more answers.

For now, what we do know is the effective date for this legislation is January 2012. So, no settlement agreements before that date. The new statute requires the worker be 55 years old before a settlement can be considered. (this age requirement drops to 50 over time) The settlement amount must be paid with a periodic payment schedule, rather than a single lump sum. (details of what this may require or allow are unclear) Settlement agreements will have to be approved by the Board of Industrial Insurance Appeals. (details are also unclear, other than the Judges may not give legal advice) Once approved, the settlement agreement will resolve all aspects of the claim, except future medical care. (although, whether this is anything more than a hollow promise of future treatment remains to be see)

I can also tell you to be cautious. I will not suggest that under no circumstance should an injured worker consider such a settlement agreement. Now that these agreements are allowed, we will see more benefits being denied and disputed. Given the absence of the sure and speedy safety net which injured workers were promised, there may be situations where such a settlement arrangement may be the best course of action. That said, the Department and Employers have more experience with workers compensation and are under no financial hardship or duress. You won’t necessarily know what you are entitled to, what to ask for, or what’s fair under the circumstances. An unrepresented worker will be at a disadvantage – you will not be bargaining from equal positions. If you are not already represented by an experienced workers comp attorney, consider hiring one. Feel free to take that with a grain of salt if you think it’s self-serving. But, I didn’t write the law, in fact I opposed it. I can protect my clients. Who will protect those who don’t have an attorney? These settlements are risky for unrepresented workers and any cost savings to the system comes from workers getting less than they would otherwise be entitled to receive. So, be cautious. Be informed. Get good advice.


The Legislature passed House Bill 2123, which has a number of provisions which will effect workers compensation in our State. I hope to discuss all of them eventually. But, most immediately, if you are receiving time loss or permanent total disability/pension benefits there will not be a cost-of-living adjustment this July. This is a one-time pass on COLA’s designed to save money.

If you have thoughts on any of the items contained in this Legislation, please forward them directly to our Governor – the prime architect of this year’s workers compensation ‘reform’.


Medical Provider Network

You may hear about a new Medical Provider Network, or MPN, being created by the Department of Labor & Industries. Legislation was recently signed by the Governor giving the Department the authority to create a network of medical providers to provide treatment to injured workers. This was a Legislative proposal which Business and Labor groups worked on together and ultimately both supported.

There are a lot of details to be ironed out, and the new Network will be rolled out slowly to limit unanticipated problems and preserve access to care. The most important thing for injured workers to know is they still have the choice to determine who will provide treatment for their industrial injury.

Workers’ choice of treating medical provider has been a cornerstone of our system, and nothing in the creation of a new MPN will alter that free choice. Currently, the worker may receive treatment from any provider who has an L&I provider number for billing purposes. In the new MPN the worker may choose to treat with any provider in the network.

The Network itself will be very broad, and will include virtually every medical provider who currently has a Provider number for billing purposes. The Network allows the Department to review the credentials of medical providers. Providers will be accepted into the Network if they are already credentialed by another health care system, for instance Blue Cross, Uniform Medical, or Group Health. There will be incentives for Providers who meet some additional standards in Occupational Medicine best practices,  encouraging quality care for injured workers.

One of the basic tenets of our workers compensation system is better medical care improves return to work and overall outcomes for injured workers. The Network will provide the Department with additional tools to meet this goal, while preserving access to care, choice of provider and improving medical treatment.

More on Third Party Claims

I liked Dave’s last post about third-party claims. It’s not a topic we’ve talked about very much, but it can be an important avenue of recovery for someone severely hurt at work. So, what types of situations will result in a claim against a third-party?

We see a lot of third party claims involving injuries on construction sites. Just think of all the activity on your everyday construction project. The General Contractor has the overall duty to provide a safe work environment for all workers on the site. The General contracts with a number of specialty subcontractors.   It’s not unusually to have  subcontractors in charge of site preparation, framing, electrical, plumbing, mechanical work, roofing, cement and even landscaping. Each of these subcontractors hires their own employees, and must make sure those workers are performing their work safely, and just as importantly, not endangering any of the other workers on the site. So, if the framer leaves a hole in a floor uncovered and an employee of the electrician falls through it and is injured, there is a potential third-party claim against the framing subcontractor and maybe the General Contractor as well. A roofer who doesn’t tie off properly and falls off a roof injuring himself does not have a claim against his own employer, other than his workers compensation claim. But, the landscaper who is hit by the roofer’s falling ladder may very well have a third party claim against the roofing subcontractor. Any work injury which occurs at work site with multiple employers or subcontractors should be carefully evaluated for potential third party claims.

 If a product or piece of equipment being used by a worker, but not owned by the workers employer, fails or is defective there may be a third-party claim against the product manufacture or owner. For example, a metal ladder with a faulty weld or a rented back hoe with no functioning back up warning signal. If either of these defects proximately causes a work injury the product manufactory or owner may be held responsible.

 If the worker is driving as part of regular work duties and is involved in a motor vehicle accident, there may be a third party claim against the negligent driver. If a worker is assaulted by a customer, there may be a third party claim. A worker who is injured on physical premises not owned or maintained by his employer, may have a third party claim. For instance, the delivery driver who slips on ice on the loading dock while making a delivery, may have a claim against the company responsible for the property. Any number of situations can give rise to a potential third party claim. As a general rule of thumb, if a work injury involves some entity other than your immediate employer, some product or equipment that your employer does not own or control, you should explore your options. As Dave mentioned, third party claims involve proof of negligence, which worker’s compensation claims do not require, and they can take a long time to resolve. But they can also be an effective tool in making sure your recover for all your damages, not just the limited statutory benefits provide in our workers compensation laws.

Recorded Statement?

I have heard recently some injured workers are being told by their Employer’s TPA (third-party Administrators) that they have to give a recorded statement about their injury. If the worker refuses, they are told their claim will be denied or rejected.

 While it is true that an injured worker must cooperate in providing information about their injury it is NOT true that they must consent to a RECORDED statement.  An unrecorded conversation is fine, so is a written explanation. There is no requirement that the worker consent to a recorded statement in order to have their claim properly adjudicated.

 I am not exactly sure where this insistence for a recorded statement originates. It does not seem to be a problem with the Claims Managers at the Department. It seems to be with the TPAs for the self-insured employers, and even more so with the TPAs for the Retro Employers. These latter are shadow managing a claim which is technically managed by the Department. These Retro TPAs can be very aggressive. The less paid in benefits, the larger the Employers’ Retro refund (in very broad brush strokes). Some of these TPAs are out of state, although that is really no excuse for misrepresenting the law. This is most likely symptomatic of broader involvement in claims management with out corresponding oversight and required training. You’ll see more on these themes in the coming days.

 The message? Know your rights. If you’re not sure – ask.

So,  here is my question to those of you out there who read this blog.

What incentives could be created which would result in more workers returning to work after they are injured on the job?

I ask because I spent a number of hours this last Fall in meetings with Business and Labor representatives, and representatives from the Department of Labor & Industries and the Governor’s office. We were tasked with exploring ways to reduce long term disability in the workers compensation system. By the way, a nearly impossible task given the short time frame to work before the start of the Legislative session. But, we did have some interesting and productive conversations about what contributes to long-term disability. As you might imagine, the factors vary from claim to claim, and there is not one single contributing factor which we could eliminate, thereby reducing overall long term disability.

We did just start to explore the idea of incentives to improve return to work. We didn’t get anywhere. The Legislative session was looming; the room was getting tense; and battle lines were being drawn. But, we were close to the beginnings of a conversation about ideas. I know, that sounds three steps removed from anything productive. However, there were thoughtful people in the room. Without the pressures of a cantankerous legislative session breathing down everyone’s neck, I think we could actually have those productive discussions. I hope we do, time will tell, I suppose.

In the meantime, I’m interested in anything you might have to say on the subject.  Any thoughts??