Don't Be A Do-It-Yourselfer

California injured workers have two options when it comes to resolving their Workers’ Compensation cases: they can hire an attorney to provide professional direction and development in the handling of their case, or they can attempt to do everything themselves. Both of these options have their advantages and disadvantages. However, it has been my view — and continues to be my view — that the advantages to the employer for the unrepresented worker are monumental, and the disadvantages to the worker and his/her family are extraordinary.

In the past few weeks, an unrepresented wife of a firefighter was processing her paperwork for a death case through the court. The City had "generously" offered $125,000 to settle this case. However, at the hearing, a question arose relative to a procedural issue, and the widow sought some pro bono information from our offices. Upon quick review of the file, it was determined that the case involved an additional fact pattern which the City had not allowed to be developed. In fact, they had not even acknowledged the potential of this pattern. The most important point to remember here is that this unique additional information increased the value of the case from $125,000 to $250,000.

Judges who review cases have a limited role as to what they can or cannot do. Based upon the factual information provided by the City, the representation being made to the court by the attorney for the City, and the widow’s lack of knowledge, she would have received $125,000. This example illustrates the potential dangers for injured workers inherent in the fact that the City has a tremendous advantage relative to the training of adjusters and attorneys who have unique information. Again, the unrepresented member in this case would have lost $125,000 of moneys she was entitled to receive, and the City would have saved that amount of money.

How can that occur? Why would fellow City employees do this to a surviving spouse?

This problem is highlighted by another case approximately 18 months ago. I had a visit with a safety member who had taken great pride in the fact that he initially had saved $2,800.00 in attorney’s fees. Following that initial decision, however, this individual later went through four other attorneys before he finally came to my office for assistance in resolving an ongoing dispute he has with his employer.

This dispute involves three issues:

(1) The injured worker’s condition has become progressively more symptomatic over time, placing further limitations upon him.

(2) Medical care relative to his industrial injury is no longer being provided by the carrier, who has determined an intervening act caused the need for care, eliminating their responsibility to provide same.

(3) The worker is seeking medical care for a compensatory medical problem — a knee injury — caused by a fall resulting from the original injury of his back giving way.

This situation brings to mind a case I had several years ago involving a peace officer who underwent knee surgery, and subsequent to that procedure developed phlebitis. Unfortunately, blood clots from the phlebitis then migrated to his brain, causing a stroke, resulting in paralysis of greater than 70%.

In the recent situation, the safety member who saved $2,800.00 had discovered that he did not know how to enforce the agreement he had with the carrier (and the likelihood he could do so was remote). Interestingly, he then — gratuitously — began talking about what a mistake it was for him to have worried about saving the $2,800.00, and how, if he had the opportunity to do everything over again, he would retain counsel this time.

Fortunately, I was able to point out to the worker that he has five years from his date of injury to reopen his case for new and further disability in the event his condition became more disabling (and he was still one year within the five-year limit). He stated that his condition had indeed worsened substantially, but when he had informed the adjuster of same, the adjuster’s response was: "Don’t worry — I’ll take care of you." Unfortunately, "taking care of him" did not include advising the injured worker of his right to reopen his case — a right which would allow him to obtain more compensation for the change in his incapacity.

There may be an issue of potential fraud in this matter, because the adjuster, after stating he would "take care" of the worker, failed to advise him of his rights. But then again, it is not the adjuster’s role to be an advocate on behalf of the worker. The adjuster’s role, quite logically, is to "adjust" the claim on behalf of the insurance carrier — to keep costs down — which is exactly what he did.

Again, this "do-it-yourselfer" initially had saved $2,800.00. As a result, however, he could have given up his right to the additional money he should have been receiving for his increased disability, based on the higher disability rating he would have received for the permanent disability caused by his knee condition. When he spoke to the adjuster about this matter, the adjuster apparently had responded with "Let me think about it." Three years later, the adjuster was still "thinking about it", while the worker was incurring the costs of using his own private health insurance — where he was co-paying the charges — and the likelihood he would be able to resolve this situation was becoming more remote as time went on.

Moreover, the injured worker was unable to continue in his occupation (which he wanted to do) because of the disease process, a process which had impacted not only his employability, but also such domestic activities as playing with his grandchildren and engaging in sports, which he has had to either minimize or cease because of the increase in his residual disability.

On the other hand, had this worker retained counsel, he would have been advised that his surgery and time off work were included under his Workers’ Compensation benefits, and he would have received temporary disability indemnity payments, as well as reimbursement for his medical expenses. He also would have been advised that his knee injury would be considered a compensable consequence of his job-related back injury, thereby entitling him to a higher permanent disability rating and increased disability payments.

More than ever, the new Workers’ Compensation laws work to the disadvantage of California injured workers; making it easy for do-it-yourselfers to "do themselves in" because of their lack of knowledge as to how the system works. But that’s not the only disadvantage of doing it yourself.

As of January 2005, the new laws mandate that if a dispute exists as to an injured worker’s level of need, or the type of care he/she should be provided, the worker and the employer must use a panel doctor — a physician selected by the state — to resolve the dispute. A major problem of this approach is that because panel doctors receive one standard level of pay — a defined fixed rate — the only way they can increase their profits is by seeing as many patients as they can, and writing their reports as quickly as possible. In addition, panel doctors’ opinions are not subject to review by do-it-yourselfers, because they lack the expertise to take a doctor’s deposition.

As you can see, the new laws virtually ensure that the adjuster is in a position to take undue advantage of the unsophisticated injured worker. On the other hand, if the worker is represented by counsel, and the parties are mandated to use a panel doctor, the panel physician will understand that he/she is subject to cross-examination by the worker’s attorney (i.e., the attorney can subpoena the physician’s records and take his/her deposition). In other words, panel doctors will be aware that, when an attorney is representing an injured worker, they are not functioning in a vacuum that has no checks and balances.

The worker and his/her family members who do not retain the expertise of an attorney are not in a position of equality when it comes to information, case law and the presentation of facts. In the first case I cited above, the widow would have received $125,000 less. In the second case, the worker was in a position to lose benefits pursuant to Labor Code §4850 and/or temporary disability benefits, in addition to reimbursement for medical expenses.

The adjuster, the employer — whether it be the City, the County or another agency — has the goal of interpreting the law and the facts in a way that is most favorable to them. In doing so, they minimize you and your family’s ability to receive a full cup of justice. To this day, the widow is shocked regarding the betrayal of trust she had placed in the adjuster. Obviously, there is a vast difference in lifestyle afforded by the $125,000 that was offered and the $250,000 she will actually receive.

The bottom line quite simply is this: Do not jeopardize your benefits, or those of your family. Seek professional assistance.

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