By Partner David F. Stern
One of the most common questions I am asked in my practice is: “I am getting workers’ compensation benefits; why do I need a lawyer?” It is a fair question but an easy one to answer in three points.
1. It levels the playing field
First of all, many times the injured worker’s “adversary,” the insurance carrier or employer, has their lawyer engaged on the case – even if you do not know it. If the defense attorney does not possess the file, they may be fielding strategy questions, or they are on standby. Make sure the playing field is level – have your advocate on standby too. This raises the second point.
2. It is completely free
If you engage a lawyer while you are receiving benefits, you do so for FREE! Not much is free in this world, but these legal services truly are. A lawyer can only receive a fee in your case if the Fee Agreement is approved by a Judge. Hence, if you are getting benefits without litigation, you do not pay your lawyer. So, you have your advocate and someone to bounce questions and concerns off without it costing you a dime. The only way your attorney would be entitled to a fee would be if your case settled; or, if the insurance carrier made an effort to reduce or stop your benefits. Clearly, in either situation, you would want/need a lawyer at that point. So, you have your lawyer in your corner with no charge as benefits are being paid without incident and then he/she is familiar with your case should you wish to resolve it, or if the insurance company/employer should try to stop these important benefits.
Keep in mind, many times a case does not settle or does not go to litigation. I have represented numerous clients over the years that have come to me while receiving benefits. Many times, I serve as counsel and guide them through the process and facilitate their return to work. No settlement, no litigation, no fee. We shake hands and I wish them the best of luck in their future endeavors. Of course, I remain available if the return to work is not successful and the client needs my help in getting their benefits started again. A very nice luxury to have in that situation. Often times, however, my help is needed as the case ends up in suit or the client wishes to pursue a lump sum resolution. There is great peace of mind knowing that I am so familiar with their case having represented them for weeks, months or years with no charge while benefits were paid without obstacle.
3. You can use the expert counsel
The other point I often make is that even the client receiving benefits could use my counsel. Do your checks arrive on-time every week? I often meet new clients who reveal the sporadic nature in which they receive these payments. We can remedy this. An insurance adjuster seems to respond quicker to a phone call from a lawyer’s office versus the injured worker. We also know how to get a supervisor, if need be. But, even more importantly, we can institute litigation to obtain monetary penalties for our clients for the insurance carrier’s illegal conduct in sending tardy payments. The only fee we obtain in these scenarios is a fee on the penalty award that we obtain.
Further, are you treating with the right doctor(s)? I often counsel clients that come to me receiving benefits on choice of medical care. Many times the injured worker receiving benefits walks in my door and they are still treating with the company doctor, i.e., panel doctor. I explain how they do so at their peril and explain options for medical and prescription care with a physician and pharmacy that cares for the injured worker, not the carrier/employer’s bottom line. I cannot stress enough the importance of this issue. Even if you are receiving benefits, guidance of counsel on your medical care is of critical importance. Sometimes I do not alter care. I advise my new client that they are in the hands of good, trustworthy and reputable physicians. Other times, I must deliver the bad news that the doctor they are seeing will eventually turn his or her back on the injured worker and we must act quickly before that happens.
Although there are no crystal balls in my office, many clients who come to see me already receiving benefits leave my office with a good understanding of the future of their case. I lay out the various forks in the road that the case could go down. This includes the good and the bad. I explain potential defense medical examinations (DMEs) to come in their case and possible litigation. I learn about my clients’ wants and desires for their future and how I can help them achieve their ultimate goal. I often explain to clients who are receiving workers’ compensation about the coordination of other benefits. Perhaps the injured worker may also be a candidate for Social Security Disability (SSD) benefits. Did you know that you could receive these benefits concurrently with your workers’ compensation? Maybe there are pension, 401(k), long term disability or other benefits that the injured worker can avail themselves of, but we must discuss the strategy of when to pursue same in light of the status of their case and potential offsets. Many times, pursuing a settlement becomes a viable option here. My insight into the value, i.e., what the case is worth, is an important tool. You do not want to attempt to negotiate a settlement with the insurance company directly. That is not a level playing field and you will not get what your case is worth.
In sum, I always tell my clients that if I had a family member or friend injured at work, I would instruct them to get a lawyer – whether they are receiving benefits or not. The system is very nuanced and you want to have an expert by your side. The consultation is always free, so go explore your rights.