Committing Malpractice on Your Work Comp Claim

July 31, 2019

If you suffer a work-related injury and you are represented by an attorney, you can take legal action against that attorney if he/she makes mistakes on your case that affect your rights and recovery. But what if you elect to go it alone and handle the case yourself. Who is to blame if your case goes south? The answer is simple – you are responsible and you’ll have no one else to blame. We frequently hear in law that, “He who represents himself has a fool for a client.” Years ago, as a prosecutor, I often saw defendants act In Pro Per (represent themselves) and the result was always the same – GUILTY. As a workers’ compensation attorney, I’ve seen it time and time again when an injured firefighter doesn’t think an attorney is necessary and everything can be done in “pro per”.

Well, when I see a building on fire, I call 911 and ask for help. I’ll try to help but I’m out of my league in trying to do anything of substance. The same goes for you and your work comp claim. Keep that in mind as I recite a true story that demonstrates just how foolish it is to represent yourself.

Firefighter X has worked for 26 years. In 2011, he developed an arrhythmia which required medication. He filed a workers’ compensation claim with his department and then was notified by the work comp claims administrator that they would investigate his claim and decide on whether to accept or deny liability. He was told that because he was unrepresented, he would need to be examined by a Qualified Medical Examiner (QME). The claims examiner then obtained a list of three Qualified Medical Examiners (QMES) from the State and advised our FF that he had 10 days to choose one of the three and if he did not, then the claims adjuster would select one. At that point, the FF began to feel better even though he was continuing to take medication to control the arrhythmias. He therefore decided to ignore the letter and not choose a QME. His claim was therefore denied.

About six months later, he received another letter from the claims adjuster advising him that because he failed to select a QME from the list, his claim was being denied. The letter stated that if he disagreed with the decision, he could file an application for claim with the Workers’ Compensation Appeals Board within one year from the date of his alleged injury. The FF decided not to do anything further once again.

In late 2018, his heart condition worsened. His cardiologist decided he need a surgical procedure and that he would need to be off work for a period of time. The FF then decided to file another claim for injury and he did so again, without the assistance of an attorney. The process repeated itself with a different claims adjuster. The adjuster hired a private investigator to interview the FF and without consulting an attorney, the FF agreed. After the interview, another QME panel was requested with our FF being given ten days to pick a doctor. The 10 days elapsed without a selection, and at that point, the FF decided to consult us.

I spent more than an hour with him and reviewed all of his documentation for both heart claims. I pointed out to him that the first panel of QMEs contained two excellent cardiologists and had he chosen either of them, his claim would have been accepted. In fact, I personally knew both of those doctors.

On the other hand, the new QME panel contained three doctors that I would describe as unsympathetic to injured workers. Further, these doctors feel that the “heart presumption” granted to firefighters is unfair and the doctors look for ways to rebut or overcome it. The FF sheepishly stated, “I guess I really screwed up, didn’t I?”

So just what did our FF do wrong and what should he have done differently? While heart trouble is a presumptive injury, that doesn’t mean it’s automatic. And even if the claim is accepted, how do you know if you are receiving all appropriate workers’ compensation benefits?

In my opinion, Mr. FF should have retained a knowledgeable attorney to assist in filing his claim. At the very least, once he received the “delay notice” and the panel of three QME’s. Once he chose one of the doctors, I would have then entered into his claim as his attorney and advised the doctor of my representation. I would have advised the QME of the exact nature of the claim, a brief interpretation of the heart presumption, and my belief as to what permanent disability Mr. FF had as a result of his condition. Obviously, none of that occurred which then led to the denial of his claim.

Once the claim was denied, Mr. FF should have consulted with an attorney immediately to see how the claim should be appealed to the workers’ compensation appeals board within the statutory time frame. That too, did not occur which meant Mr. FF allowed the statute of limitations to expire.

Mr. FF’s condition worsened in 2018. Because he now needed surgery, it could be argued that continuing to work as a FF caused his condition to worsen thereby resulting in a “new” injury. By filing a new claim, Mr. FF initiated the workers’ compensation process all over again. That meant additional time for his employer to investigate the claim and obtain an entirely new and different QME panel. Mr. FF was not so lucky this time around with the new set of doctors and I so advised him. He was also lucky that the claims adjuster didn’t select the QME once the 10 day mark passed. I reviewed the list and advised him to select the least evil of the three doctors. Mr. FF followed my advice and he then contacted the claims examiner with the name of the doctor and the date of the exam.

Once the above was done, I entered into the case. I served the claims examiner with my notice of representation and demanded she serve me with the complete medical file from the treating doctor. I also requested a transcribed copy of the statement my client provided to their private investigator (something no one should ever do without consulting an attorney).

I then drafted a letter to the QME in which I provided a detailed description of my client’s duties as a FF throughout his career. I also educated the QME on the heart presumption and why it applies to my client’s condition. I advised the QME that he could not attribute my client’s condition to any so-called pre-existing condition or congenital abnormality.

By the time you read this article, the QME’s report will have been prepared and hopefully my client’s claim will be accepted. I hope to get him reimbursed for his out of pocket medical expenses and get his time missed from work converted to IOD pay. I also plan to recover permanent disability compensation for him based on a disability rating provided for in the American Medical Association Guides on Impairment. My client is currently back at work and plans to continue working for the foreseeable future. So far, the adjuster has not raised a statute of limitations defense but she has not yet referred her case to outside counsel. It’s entirely possible such an attorney will raise that issue and argue that while my client’s condition obviously worsened, it not a result of a new injury but rather, the direct result of the original claim.

As you can see, what might seem simple to the casual observer can in fact be a can of worms. Yes, certain injuries are presumptive for firefighters (heart trouble, cancer, pneumonia, hernias, etc.). Many times, those claims are accepted without a fight and everything goes smoothly. But why chance it? Consulting with an attorney doesn’t cost you a cent. It is illegal for an attorney to charge you for a consultation and indeed to even represent you. Attorneys only recover a fee (9-15%) of whatever you recover at the end of your case. If you don’t recover, your attorney doesn’t receive a fee.

I often meet with potential clients and conclude they don’t need representation. That might have occurred here had I met with Mr. FF in 2011. He would have seen one of my two friendly doctors and I’m pretty sure I know what the result would have been. Despite writing countless articles and speaking to employee groups about the risks of handling claims without an attorney, people still do it. They are told by friends that “you don’t need an attorney” or perhaps they just distrust attorneys.

I happen to be certified by the State Bar as a specialist in workers’ compensation. That means in addition to passing the regular state bar exam, I have practiced workers’ compensation for a minimum of five years, have conducted a minimum number of hearings at the workers’ compensation appeals board and depositions of doctors. More importantly, I passed a second bar exam in workers’ compensation. Do you need a specialist in workers’ compensation? No, but it sure helps. It also helps to have an attorney who is knowledgeable in representing safety members and the special benefits they receive.

So, in the future, be smart in handling your own claim. Talk with an attorney before you make decisions that affect your career. Don’t be the person that we refer to as one representing himself who has a fool for a client.

By Robert Sherwin, forLewis, Marenstein, Wicke, Sherwin & Lee

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