If you’ve been injured in a workplace accident or you’re suffering from an occupational illness, you should meet—and by that, I mean at least speak via telephone—with an experienced workers’ compensation lawyer, or someone knowledgeable on his or her staff– as soon as possible. Your employer and your employer’s insurance company will fight to force you back to work as quickly as they can. Many times, the insurance company will work to deny your claim or reduce your amount of benefits, or make you believe that there is nothing that you need to do to enforce your rights to workers compensation benefits.
An experienced workers’ compensation lawyer or his experienced staff will explain the basics of how the workers’ compensation claims process works, answer all your questions based on what he or she has available at the time of the conversation. Ultimately, if you sign with a worker’s compensation attorney such as our firm, our first task will be to gather all of the medical evidence and then schedule a more thorough review and plan of attack with the attorney once those records have been received from your medical providers.
Much of how fast this review occurs really depends on how long ago you were injured and whether your attorney can determine if your claim is accepted or denied by the insurance carrier. The reason these two things make a big difference is because if you’ve been treating for some time, there likely will be a large volume of medical records to review.
You may not even know whether your claim has been officially accepted or denied. This is because in many cases the insurance company will VOLUNTARILY pay your workers compensation up to and until you are released to light duty. But that is no guarantee that those payments will continue without a formal Award from either the Virginia Workers Compensation Commission or the North Carolina Industrial Commission. So in the case of your Virginia claim, if decide to represent you, in most cases, we will immediately be able to get onto the WebFile System and determine what forms have been filed and if you are under an Award. In North Carolina cases, we can obtain those forms via correspondence with the Industrial Commission.
If no formal claim has been made, we’ll review the evidence you’ll need to support your claims such as medical reports and file the formal claims on your behalf. Our team will be your advocate with the insurance companies and the Commission.
Common questions at the initial interview with your workers’ compensation lawyer
Injured workers should be ready to explain the following at the initial meeting. Don’t worry. It helps us prepare your claim if you review what questions you’ll be asked before the meeting – but we can also ask you questions at the meeting and then give you time to answer them after the meeting.
Questions about your job
- What company do you work for?
- What factors indicate that you are an employee and not a contractor? These factors include how often you’re paid, whether you receive a W-2 or a 1099, whether the employer supplies the tools of your trade or profession, and many other factors.
- Where were you working when you were injured?
- What type of work do you do? Be prepared to describe the specific tasks and the type of physical and verbal activity that is involved?
- How much do you earn on an hourly, weekly, or other payment period basis?
Questions about the accident
- What are the facts of your accident?
- Did it occur at a specific time or place, or were you injured over time?
- Did you have a slip, trip or fall?
- Did you provide notice of the accident to your employer?
- If so, how and when did you provide the notice? – orally, by letter, by email, text, or in some other way?
- Whom did you speak to and what was that person’s job title?
Questions about your health/injuries
- Where did you receive your initial medical treatment? How did you get to that healthcare provider? For example, did an ambulance take you to the closest hospital emergency room?
- What doctors and healthcare providers have you been seeing since the accident occurred?
- Did the doctors provide a diagnosis of your medical condition?
- What treatments have your received including any surgeries, physical therapy, occupational therapy, and other types of medical care?
- What type of pain are you in?
- How does your health condition prevent you from returning to work?
- Do you have any work notes from your doctor saying that you cannot work, or providing you with restrictions from working, such as “light duty”?
- If there are work restrictions, is your employer accommodating those restrictions or saying they don’t have any “light duty”?
What documents should you or send to your worker’s compensation lawyer initially?
Again, don’t worry if you don’t have these documents. The more documents you send us via email or physically bringing the documents to the office does help to save us time – but we can obtain these documents after the initial consultation. Some of the documents we will need from you, your doctors, and your employer (we can obtain those documents formally if your employer is not cooperative) include the following:
- Any written reports or documentation of your accident or injury
- The names and contact information for all your medical providers
- Any medical records, especially work notes or disability slips from your doctor detailing your work capability such as “no work,” or “light duty” notes. In most cases, we will obtain formal reports detailing your diagnosis, treatments, and health condition from your doctors, but you may have been given a copy of the work notes.
- The names and contact information of anyone who observed the accident that occurred including co-workers, supervisors, and others;
- Any correspondence from your employer or the insurance company for the employer
- The contact information for your employer
- The contact information for the employer’s insurance company
- Any evidence as to your rate of pay, such as W-2’s 1099’s, pay stubs.
- Any correspondence, forms or Awards from the Virginia Workers Compensation Commission or the North Carolina Industrial Commission.
We may seek information about any prior injuries.
Common questions that workers ask their workers’ compensation lawyer at the initial meeting?
Some of the common questions we’re asked by employees who have suffered an injury or occupational illness include:
- How long have you been handling workers’ compensation claims?
Answer: Joe Miller has been representing injured workers for over 33 years.
- How much of your law practice is devoted to workers’ compensation claims?
Answer: 85% of our practice is devoted to workers compensation. The other 15% is personal injury, such as car accidents, but many of those claims are also work-related.
- What success have you had representing workers’ compensation claimants?
Answer: We either settle or win about 85% of the cases we handle. If we feel the case has reached a point where there is really nothing left to be done (for instance, all settlements are voluntary. Sometimes, the carrier is simply not interested and just wishes to pay your claim week by week), we may decide together that our services are no longer required. Sometimes, clients make a full recovery and there really is no residual value to a claim that can be settled out.
- How often do cases settle?
Answer: I would estimate that 75-80% of the cases we take settle.
- If I have to appear at a Hearing, what can I expect to happen at the hearing?
Answer: I would direct you to this VIDEO where I explain that in detail.
- Do you handle claims involving my type of injury or illness?
Answer: We handle all claims that we agree to take that we deem compensable under the law. The answer as to whether we can assist you with your claim depends on how the accident happened and whether we have a valid argument that the claim is compensable as a worker’s compensation injury. This depends on many things, such as whether you had a valid “accident.”
- If I made a tentative deal with the employer and the employer is paying my medical bills and wages, do I need to do anything else?
Answer: Yes. The bottom line in worker’s comp cases is YOU HAVE NO RIGHTS UNLESS YOU ENFORCE THOSE RIGHTS. Your employer can voluntarily do anything they want to, but they do not have any DUTY to pay your share of wages (generally about 2/3rds of your pre-injury wages) and your medical bills unless the North Carolina Industrial Commission or Virginia Workers’ Compensation Commission has issued an Order commonly known as an AWARD FOR BENEFITS. In North Carolina, you essentially have an Award if the insurance carrier has filed either a Form 60 or Form 63. You or your attorney must usually initiate this process by filing a Claim for Benefits in Virginia or a Form 18 in North Carolina.
- What wage benefits am I entitled to while I’m seeking medical help to improve my medical condition?
Answer: If you are under an Award, 2/3rds of your pre-injury average weekly wage.
- What wage benefits am I entitled to when my medical condition stabilizes – additional treatments are not expected to improve my health? Answer: If you are under an Award, and you are still under work restrictions per your treating doctor or permanent restrictions that prevent your return to pre-injury work, you may be entitled to up to 500 weeks total of weekly wage benefits.
- What happens if the employer tries to force me back to work before I’m ready?
Answer: Your authorized treating physician-typically the main doctor whom you have been treating with for your injuries—has the power to determine if you are fit for duty. It’s simply a fact that some doctors tend to side more with the employer and insurance company and send you back to full duty before you are really ready. There is really only one immediately option at that point, unless you want to destroy your case. And that option, as hard as it is, is to return to work and give it your best shot. When you return, pay attention very carefully to what specific tasks at work cause you the most pain. Make a list of those tasks. If there are some tasks you attempt or simply cannot perform due to pain or insufficient range of motion, note those tasks as well. Once you have your list, return to the authorized doctor as soon as possible and let him or her know what is going on. You tried to return to work, but it’s just not working. Some doctors will either give you work restrictions at that point or possibly even let you come back out of work. Others will not, at which point other options can be discussed.
- Do you handle my case yourself?
Answer: No, I do not do anything alone. We have a team that assists me which includes a medical records and billing assistant and a workers compensation paralegal. But yes, Joe Miller directly handles your case. That being said, much of the day- to- day tasks and simple questions can be addressed by our paralegal.
- How can I contact you if I have questions about my claim? How can I expect you to respond?
Answer: We have a process in place for this. Unless there is an extreme emergency, unlike some other attorneys’ offices who will just take a message and never return your call, if something cannot be dealt with by my staff, they are instructed to set you up with a telephone conference to speak directly with your me, your attorney. I typically have these client conferences set on Tuesday and Thursday afternoon. This way, I have time to be made aware of what the issue is and address the issue during our phone call. Many times, we will be the ones initiating these conferences, because I need to have a discussion with you about your claim, for instance, regarding potential settlement offers from the insurance company, or other concerns we need to discuss as to the direction of your case and how to proceed next.
- How long does it normally take for my claim to be heard by Deputy Commissioner at a Hearing or to be resolved through negotiation?
Answer: Well, there are really two separate questions there with very different answers.
First of all, the only time we go to Hearing is if all or some aspect of your claim is being denied or otherwise not paid by the workers compensation insurance company. If the claim is being entirely denied, from the time we file the Claim for Benefits in Virginia, there is then at least a 30-day period the defense has to issue their denial. At that point, the matter will be placed upon the docket by the Commission, and shortly thereafter, assigned a Hearing date by the Commission. Unfortunately, these Hearing dates are typically set at least 4-5 months out. There is not much we can do about that, unless your claim was already under an Award and you have been cut off of benefits for some reason. In those cases, we can move for an expedited Hearing. But if it’s an initial claim, the case is heard when it is heard.
In North Carolina, there is a slightly different process. Either on their own, or in response to a Form 18, the defense would file a Form 61, which is a denial of your claim. Then it would be up to your attorneys to file a Form 33, which would move the matter to docket and hearing status. If both parties agree, you can bypass mandatory mediation, but if not, you must go to mediation prior to Hearing. Meditation may take several months to coordinate between the parties and assuming it fails, it may take a month or two more to appear on the Hearing Docket. In North Carolina, your attorney must also set up your doctor’s deposition to prove the claim, and the parties typically have up to 60 days AFTER the Hearing to conduct that deposition.
Insofar as negotiations, that typically—although not always—involves an accepted claim where the injured worker has either reached maximum medical improvement or is close to doing so. In other words, most of the time in these scenarios, the case is already “won,” in that the defense has agreed the claim is compensable and you are already under an Award.
So the answer to the question as to how long resolution through negotiation takes is first best answered by your doctor, not your lawyer. Because there is certainly no point to settle your claim, for instance, if you have just had a major surgery for your work injuries. How long will you take to heal? What will be the permanent effects? How will the injuries ultimately affect your ability to do your job? These things really can’t be known until you are close to reaching maximum medical improvement.
At the point when negotiations have begun—which I typically initiated by your attorney via a DEMAND LETTER, there is really too much variance to say that it will take any certain length of time. This is because every case is different, every insurance company has different evaluation policies and schedules. In North Carolina, we favor the mediation process for several reasons. One is that it gives finality: Everyone, meaning all the interested parties, including the one with the “checkbook,” i.e. the insurance adjuster will appear and attend the mediation and hopefully, the matter will get resolved. In North Carolina, at the end of the mediation, a paper is drawn up called a Mediation Agreement, which requires the defense to act to send the proposed Formal Settlement Agreement to your attorney within 30 days. The Mediation agreement contains the terms the parties agreed to and best of all, it’s an enforceable, legal document that requires action.
In Virginia, there can also be a mediation process, but at the end of the mediation process, there is no Order, legal document or other requirement that anyone follow through on what was agreed to. So oftentimes, Virginia Workers Compensation settlement negotiations are simply conducted amongst the attorneys via email or phone negotiation. Again, this depends really on how willing the insurance company is to settle.
Because it must be remembered that the worker’s compensation insurance company is under NO OBLIGATION to settle your claim. If they are paying you your weekly benefits and covering your medical bills, they are doing what they are supposed to do. Sometimes, for whatever reasons, they would prefer to continue to do that rather than settle for a lump sum.
- What types of defense arguments are the insurance company and the employer’s lawyer likely to make?
Answer: There are a number of standard defenses that they can throw at you when they deny your claim, and I highly recommend you view my videos or read our articles on each of these, because they each deserve their own, detailed coverage. Click on the defense to be taken to the relevant video or article:
- You did not suffer an “injury by accident” as defined by the law.
- In Virginia, your injury did not “arise out of” your employment. In other words, the injury was not connected to a risk presented by your employment.
- Your injuries were not caused by the accident, but were all pre-existing.
- You did not present the appropriate medical evidence using the “magic words” to prove that your injuries were caused by the work accident.
- You were not an “employee” of the defendant at the time of the accident, but you worked as an independent contractor.
- The employer had less than three employees regularly employed in the business and was therefore not subject to the Workers Compensation Act.
- Your claim was not filed within the statute of limitations.
- In Virginia: You violated a known safety rule and that is what caused your injuries.
- You were intoxicated at the time of the accident, and this is the reason you were hurt.
- You did not follow your authorized treating doctor’s treatment plan or the vocational rehabilitation plan and are therefore no longer entitled to your ongoing benefits.
- You were fired for cause from a light duty job and in Virginia, no longer entitled to any further benefits.
- What are the strengths and weaknesses of my claim?
Answer: Of course, you will have to discuss your claim in detail with your attorney, especially with respect to whether any of the above defenses apply and if so, how strong is the defense case?
Questions about the lawyer’s fees and expenses.
What fees do you charge? Answer: Generally, we receive a percentage of any settlement at the end of the claim. This means if your case settles, we receive a percentage. Generally, we receive a percentage of lump sum settlement-both medical and wage or indemnity, which fees must be approved by the Commission. In Virginia, this tends to be 20% of the recovery and in North Carolina, 25%. In some cases, for instance where you are a Medicare Recipient, and a formal, approved Medicare Set-Aside (MSA) Fund must be created, your attorney would receive no fee from the MSA funds.
There are also sometimes other fees. For instance, if we win a contested claim, and you are owed back benefits from the time of injury, the Commissioner is typically going to Award us around 20% of those back benefits as a fee, in North Carolina, possibly 25%.
Also, in Virginia, if there is an Award Agreement that we helped facilitate, and an Award comes out of that, the Commission may award us a small fee, (usually $500.00 or less), which can be taken out automatically out of your ongoing workers comp checks at the rate of $25 or $50 per week, whichever is easier for you.
In North Carolina, if we win a victory for you either initially or if we have to litigate a portion of your claim, the Commissioner might award us every 4th worker’s comp check on an ongoing basis.
Are there other costs? If we advance any funds for medical records, medical billing, deposition transcripts, court documents, or witness fees, these may come out of any potential settlement or Award as well. Usually, these run only in the hundreds of dollars, unless we need a written opinion from one or more of your doctors. The doctors will typically charge us for their opinions or phone time. Sometimes those charges can exceed $750.00.
The bottom line, though, is that you will never have to write a check to us for any of the work we do. Our fees and costs if any, are Ordered by the Commission taken care of automatically.
We expect that clients will have many other questions after the initial consultation. We’re happy to answer your questions whenever you have them. At Joe Miller Law Ltd., our North Carolina and Virginia workers’ compensation lawyer will steadily and clearly guide you through each phase of the claims process. To assert your right to worker’s compensation benefits, call attorney Joe Miller, Esq., at 888-667-8295 or complete my online contact form to schedule a free consultation.
Our law firm does have a way for you to provide your details of your accident and injuries if you simply want to do that electronically from the comfort and safety of your home at any time of day or night. To utilize this service, simply click here: New Electronic Case Review.
We’ll get back to you, typically within 24 hours to provide our response as to whether your situation is one where we can provide you with legal representation. If we require more information, we’ll contact you and ask for that information in order to make that determination as to whether we are the best folks to assist you. If we ultimately determine that we cannot represent or assist you, we will not leave you high and dry. We’ll do our best to provide you with other resources to assist you.