- All information relating to the injury, including the accident report and names of witnesses;
- The notice of denial and any other documents from the insurance company;
- The names and phone numbers of any doctors the employee has seen for the injury, including doctors she was sent to by the insurance company.
You and the attorney will then make a decision as to whether you will retain the attorney to file the petition. In general, the attorney is paid on a contingency basis, which means that she receives a fee if she is successful in obtaining benefits. The customary fee is 20% of the benefits payable. There is a possibility that the attorneys’ fee can be paid separately by the employer for unreasonably denying your case, but this is the exception to the general rule. The attorney will discuss that possibility with you. In addition, the attorney will make an arrangement regarding the costs of the litigation, which may include payment for the doctors’ depositions and for written transcripts. Most of these costs are automatically paid by the employer if the claim is successful.
2. Procedures before the judge – Once the petition is filed, it takes a few weeks to receive an assignment to a workers’ compensation judge. You will receive an assignment notice in the mail. A few weeks after this, you will receive a notice of the first hearing date, time and location. Generally, the hearings are scheduled for the judge’s office closest to you.
In the time before the first hearing, the attorney will obtain your medical records from the treating providers. She may also schedule your doctor’s deposition for sometime after the first hearing. The employer will also hire an attorney. This attorney will file an answer to the petition and attend the hearings on the employer’s behalf. Generally, your supervisor does not come to the hearings, although the attorney may later present witnesses from the employer to testify.
You will testify at the first or second hearing, depending on the judge’s preference. Before every hearing, your attorney will review the questions to be asked so that you are prepared for the hearing. The attorney for the employer then has the right to “cross-examine” you, or ask certain questions in defense of the claim. You should have an opportunity to have any questions answered before the hearing occurs.
Your employer also has the right during litigation to have you undergo an independent medical evaluation (“IME”). You will receive a notice in the mail that it has been scheduled, usually sometime after the first hearing. After the IME appointment, the examining doctor will write a report, which will be sent to both attorneys.
Over the next few months, each attorney will take the depositions of their respective doctors. They may also schedule the deposition of witnesses from the job, if there is a dispute as to how the injury occurred or what the job duties were at the time of injury.
There will be a second hearing scheduled, which generally occurs from 90 to 120 days after the first hearing. At this time the attorneys will submit their evidence to the judge. Occasionally, there is a need for more hearings if there are many doctors or other witnesses. After the final hearing, the judge will give the attorneys time to write briefs. Once the briefs are submitted, the judge will make a written decision.
There are exceptions to the above procedures. For example, if the claim involves disability of less than 52 weeks, the attorneys can sometimes avoid depositions and just submit medical reports to the judge. However, you should expect the case to take nine to twelve months before a decision is reached.
3. Sources of income during litigation – As noted above, litigating a workers’ compensation case takes time. It can be very frustrating to “jump through the hoops” of having an IME exam and waiting for depositions to occur when you have no income to support yourself. The following are suggested sources of income during the process:
- Continued work for employer (either full or light duty);
- Work for other employers (if you are released for work with restrictions and your employer does not offer you accommodating work, you can look for other work within those restrictions);
- Unemployment benefits (once again, if you are released from some type of work and your employer does not offer it to you);
- Private disability insurance (note that sickness and accident benefits are sometimes not payable for work injuries; you should always be truthful about how the injury occurred); and
- Cash assistance from the Department of Public Welfare.
* It must be reiterated that any amounts received from the above sources may be deduced from the weekly workers’ compensation benefits you may ultimately receive. You will be required to document your earnings for the judge.
4. Payment of medical bills during litigation – Many employees do not realize that if their workers’ compensation claim has been denied, they can submit their medical expenses under their health insurance policy. Not all policies will pay bills for work injuries, but many will. It is critical that you always state that your injury was work-related, even though it can be tempting to deny it to get the bills paid. If your health insurance pays any medical expenses, your attorney will contact the insurance company to obtain the bills. They will then be submitted to the judge so that the employer can reimburse the amounts if the claim is successful.
If you do not have private health insurance and you have limited income, you can apply for a medical card through your county assistance office. If you are ineligible for this and your medical bills are unpaid, you should send them to your attorney. Most attorneys will send a “letter of protection” to the provider, which assures them that the claim is being litigated and that the bill will be submitted to the judge for payment. It does not guarantee payment, but often it is sufficient to prevent the medical office from sending the bills to a collection agency. You can also make a small monthly payment on the balance owed to the provider as a show of good faith. Give your attorney a copy of any amounts you paid (particularly for prescription expenses), so that they can be reimbursed to you if you win the case.
5. The Judge’s decision – Within a few weeks to a few months after the attorneys submit briefs, the judge will make a written decision. When you receive it, you should read it carefully and then call your attorney to discuss it. The first few pages are the judge’s discussion of the evidence, and the last page is the judge’s order granting or denying the petition.
a. A favorable decision. If the decision is in your favor, it should specifically state what benefits you will receive. Usually, the decision will contain your average weekly wage, the date of your eligibility of benefits, whether interest, litigation costs or attorneys’ fees are owed and the approved medical bills.
The employer has 20 days to appeal the decision to the Worker’s Compensation Appeal Board (“WCAB”). Sometimes the employer will pay the claim while the appeal is pending. However, the employer can request a “supersedeas,” where it asks the WCAB to allow payment to be withheld until the appeal decision is made. The WCAB decides these requests fairly quickly, and most often the supersedeas request is denied. Payment should then follow within thirty days.
b. An unfavorable decision. If the judge has ruled against you, you and your attorney will discuss whether to appeal. Your attorney will assess the likelihood that the WCAB will reverse the judge. If the attorney believes you may win on appeal, he will continue to represent you (often for no additional fee). If the attorney decides not to appeal, he should let you know quickly, so you can seek a second opinion if you wish. Your appeal must be filed within 20 days of the date of the decision.
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