What Workers’ Comp Lawyers Won’t Tell You

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In general, a workers’ comp lawyer won’t tell you if they can capably handle your claim. At least, they will probably not give you an honest answer. Fortunately, with some research and some vigilance, you can answer this question for yourself.

To better address this issue, we should pull the curtain back a bit. The workers’ compensation per-claim cost increases 388 percent if the victim has an attorney. That statistic is a very good reason to work with an attorney. But for purposes of this post, to discourage attorney involvement, most states have laws that limit individual workers’ compensation settlement amounts. As a result, most workers’ compensation lawyers rely on volume. High volume often means little individual attention.

Most workers’ compensation attorneys use smokescreens, like client confidentiality, to conceal their caseloads. Despite these efforts, during or after the initial consultation, the amount of attention an attorney is giving, or isn’t giving, a case becomes very apparent. Here are two of the biggest red flags to avoid.

Inaccessible Lawyers

This issue is very common at large workers’ compensation-only law firms. The highly experienced attorney featured in TV commercials probably won’t be the same professional that handles your case. A less-experienced associate, or even a non-lawyer paralegal, handles most of the day-to-day functions.

At the same time, attorneys must have the resources to take on large workers’ compensation insurance companies. David took down Goliath, but David had five stones in his slingshot. If a lawyer has no legal assistants, associate attorneys, or other “stones,” a positive outcome is unlikely.

So, look for a balance. Your attorney should personally handle most tasks but delegate some to other professionals.

On a related note, physical accessibility is important as well. Especially on their bad days, many job injury victims cannot easily get from place to place. Your attorney’s office should be near your home or other stomping grounds. Non-office visits, like Zoom meetings, are good. But nothing substitutes for a private, in-office, face-to-face meeting.

Inexperienced Lawyers

The old saying that “there’s no substitute for experience” usually holds true in this area. Workers’ compensation claims are extremely complex, mostly because insurance companies are so stingy. Benefits payments have decreased 20 percent over the last several decades. Only an experienced attorney knows how to navigate through the system and obtain maximum benefits.
At the same time, experience isn’t everything. A losing high school basketball team that returns all five starters is experienced, but it’s still a losing team. Your attorney should have a successful track record. Furthermore, your attorney should have some trial experience. Job injury lawyers who go into “settlement closets” get little or no respect from insurance company lawyers.

Why is My Workers’ Comp Case Going to Trial?

Very few job injury victims ask this question. Over 95 percent of civil claims, including workers’ compensation claims, settle out of court. In fact, in many cases, a trial setting is simply a negotiating tool. Once the insurance company knows the victim is determined to go all the way, insurance company lawyers are more willing to wheel and deal. However, as outlined below, sometimes the two sides are simply too far apart on a key issue, so an Administrative Law Judge must resolve the dispute.

Many victims believe making an out-of-court settlement is like raising the white flag and giving up. However, these resolutions are usually better for victims than trials. Primarily, these settlements end cases sooner, which means victims get their checks sooner. Moreover, settlements give the parties more control over the outcome. Finally, these settlements reduce bad feelings, so when workers get back on the job, a cloud doesn’t linger over them.

Issues in Workers’ Compensation Cases

Usually, insurance company lawyers cannot dispute fault. However, they can and do dispute the work-related connection and the amount of damages.

Most work-related injuries occur at work while the victim is on the clock, so the connection is clear. But what about injuries during “optional” company events, work from home injuries, and commuting-related injuries?

The first two examples are clearly work related. Charity softball games, team-building retreats, and other such events clearly benefit employers. If the employer benefits, the injury is work related, at least in most states. WFH injuries are also work related. Employers have a legal duty to provide safe work environments. Simply providing equipment and watching remote employees doesn’t come close to fulfilling this duty of care.

You’d think the third above example is a work related injury as well. However, courts have consistently held that commuting injuries aren’t work related injuries. That position might change in the remote work era, but we shall see.

The Trial Process

An Administrative Law Judge hearing is a bit like a bench trial, in which the judge serves as both legal referee and fact finder.

Privacy is one big difference. Court reporters record everything that anyone says at a bench trial. ALJ hearings don’t have official records. If questions about the ALJ’s decision arise, a reviewing body must piece things together based on the paperwork in the file and the participant’s recollections. These recollections might or might not be accurate.

Additionally, ALJs have limited powers. For example, they usually cannot issue subpoenas. ALJs cannot compel reluctant witnesses to appear and testify and/or produce documents. On a related note, ALJs are usually insurance company-paid independent contractors. So, ALJs are usually, but not always, completely neutral.

Procedurally, ALJ hearings and trials are almost identical. Lawyers make arguments, question and cross-examine witnesses, and introduce and challenge evidence. That’s much more complete than a Claims Examiner review, which is normally a paper review. Insurance company arguments often don’t withstand the additional scrutiny, which is why so few workers’ compensation cases go to trial.

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Bret Thurman

Bret is a former lawyer and full-time writer who knows how to simplify complex topics. He received his law degree from the University of Texas at Austin. For over twenty years, he handled a wide variety of cases, including criminal defense, personal injury, family law, and consumer bankruptcy.

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