Cindy Speaker: Good afternoon everyone, my name is Cindy Speaker and I have with me today workers’ compensation specialist, Debra Matherne OF Michael J. O’Connor & Associates.
Debra Matherne: Hi.
Cindy Speaker: Hi, how are you doing?
Debra Matherne: Very well, thank you.
Cindy Speaker: Good, good. We did this … It was pretty easy last time so you’re not too nervous, right?
Debra Matherne: That’s right. We’ll see how that develops as this goes on, though.
Cindy Speaker: That’s right. Well, when it’s live things happen but that’s okay. It makes it more interesting. What we’re going to do is you were kind enough to give me a really good list of seven potentially, maybe common, mistakes that claimants sometimes make in their workers’ compensation claim. What I’m going to do is I’m going to feed you those one at a time because I’d like to hear you explain them and comment on them. Will that work okay?
Debra Matherne: That will work great.
Cindy Speaker: Let’s go ahead and start off with number one, again, these are … Am I correct, these are common mistakes that claimants sometimes make in a workers’ compensation claim?
Debra Matherne: Yes, our law firm, Michael J. O’Conner & Associates, we represents claimants exclusively in workers’ compensation cases. Through the years we’ve seen different patterns of things that people can do that can either be an error or mistake in their case.
Cindy Speaker: Right, right. Okay, so here’s the first one Debra, not quickly reporting their injury or advising their employer of how serious that injury was.
Debra Matherne: Yes Cindy, that’s actually a big one because everything starts at the very beginning. Very Often, we’ll talk to somebody and they’ll say, well, I was injured a while back but I didn’t do anything about it. I thought that perhaps my symptoms would go away or I thought maybe my employer would be upset with me that I had an injury so they don’t report it. But, there are actually statutes of limitations and deadlines that have to be met and an injury must be reported within 120 days.
Cindy Speaker: Okay.
Debra Matherne: Once you report it you can decide whether or not you’re ever going to pursue it or pursue a case or any legal action but if you don’t report it within 120 days you are forever precluded from ever pursuing that injury. It’s always better to be safe rather than sorry and report that injury. Also, everything is going to be fresh in your mind at that point. If you’re trying to come back months after an injury to remember who was present at the time you were injured or remember exactly how something occurred your memory, obviously, will be a little less good at that time than it might have been earlier.
Cindy Speaker: Debra, do you find that sometimes when a claimant does not report is it a fear factor of some sort?
Debra Matherne: Often.
Cindy Speaker: Okay.
Debra Matherne: Over and over … I will even have people who come into me that have a very serious injury. I had a gentleman who came to an interview recently, could barely lift his arm to shake my hand. He had not yet reported his workers’ comp injury because he was afraid of the reaction of the employer. Jobs are important and if you like your job and it’s a good job of course you don’t want to do anything to upset your employer. However, you really have to protect yourself. Again, that’s why the law is there, to help you and make sure that you have benefits. You don’t have to pursue it but if you don’t report it you won’t have the option. Should your injury become more serious in the future and you’re unable to work you would wish that you had gone back and reported that within the 120 days that are required or as soon as possible.
Cindy Speaker: Right, right. Okay, let’s go to the second one, trying to hide a past injury or an underlying medical condition. What about that one?
Debra Matherne: That’s also one that I see over and over again. Often people will be under the, or are under the misunderstanding, that if they’ve ever had a symptom or an injury to that same body part in the past that means they’re precluded or would not be able to get workers’ compensation but that’s not always the case. In Pennsylvania, under Pennsylvania under Pennsylvania Workers’ Compensation Law, if there’s an aggravation of a condition that’s already there or a worsening of that condition it can still be considered a work injury. It’s always better to tell the truth because during the case and during litigation they’re going to get documents and they’re going to find out just everywhere and anywhere you’ve ever been. You don’t want to lose what’s called your credibility with the judge, your believability, out of fear. If you say, oh, five years or one year ago I had treatment to that same body part … You always want to be honest with it.
We can often still win your case even if there has been a prior injury to the same body part or prior medical treatment to that as long as there’s been some type of a worsening and exacerbation and aggravation of that injury. What they’ll look at is the symptoms, did the symptoms get worse?
Cindy Speaker: Okay.
Debra Matherne: It’s always important to be truthful with your attorney. It’s always important to be truthful with the judge. You shouldn’t have a fear. You should discuss it with the attorney because often you can still have a work injury if something was made worse from whatever the event was at work or your work duties repetitive in nature.
Cindy Speaker: That makes sense. Good advice. Okay, the third one, not seeking prompt or proper medical attention.
Debra Matherne: This goes along the same line as the first one with not reporting your injury. You’re always better off going to the doctor as soon as you can that way there’s a record of what your symptoms were very early on. Again, a lot of people think they’re going to shake it off or work it out and that things will go away. But, if you notice this is really not going away it’s better to have a record of what your symptoms were that are recorded by a doctor. Again, you’re going to be coming in as a person and saying here’s what I felt. But, if it’s actually recorded by a medical provider that’s great evidence in your case.
Another reason is going in to that doctor’s office and having them record the symptoms or have studies done that can prove or show that you had this injury, that’s also very important. If you’re waiting either a long time to treat initially or you’re going a long time between doctor visits you’ve lost the opportunity to have a record of that recorded in the doctor’s notes.
Cindy Speaker: Yeah, yeah. The next one is communicating with a nurse hired by the insurance company and that’s interesting to me because you would think you’d be able to communicate with a nurse that was trying to find out information but that’s not a good thing to do?
Debra Matherne: No.
Cindy Speaker: Okay.
Debra Matherne: It’s hard to say what I would rank number one as far as how often I’ll see these mistakes but this one is right up there. It’s got to be in these top ones. Often, when somebody has a workers’ comp injury, especially if they’re put on workers’ compensation benefits, but even if they’re not yet on, the insurance company, in certain cases, will highlight that case and they will have a nurse who’s hired, a vocational nurse, to follow the case and try to control the cost of the medical benefits or the medical treatment.
When somebody is injured and they hear from somebody they’re often under the impression, oh this person is really there for me, which to some extent they are but I always say to people, you have think about this logically. Who is paying that person and what is their ultimate goal? While they may be helpful in some ways, often some of the things they are doing, for example setting up your medical appointments, these are things you really should be doing on your own, choosing your own medical care with the advice of your family or your attorney or someone who is really 100% for you.
Cindy Speaker: Yeah.
Debra Matherne: If there’s someone who has the idea of cost efficiency in mind that’s not always in your best interest from a medical standpoint. Your goal is to get the best treatment you can and get better as quickly as possible. They’re looking at … Often we’ll hear the nurse talk to the doctor after the appointment and say, “Wait, you’re prescribing this expensive medication, can’t we try another one first,” or, “Before you have that medical test can’t we try something else?” They sort of give their opinions and it’s with the goal of, perhaps, limiting the treatment or limiting the cost. That’s not always in your best interest.
Another thing is that we’ll often get to court and questions will be asked of our clients. For example, they’ll say, “Well, wait a minute you’re saying that you’re unable to work but don’t you have two dogs that you take care of,” or, “Don’t you ride a motorcycle?” The person will think, huh, the only person I ever talked to that about was the nurse in the case who was hired by the company. They were actually writing all of this down to share with them and now it’s sort of being presented … I’m having a conversation about my dogs and I think it’s just a friendly conversation where it’s being taken in the context of how can we look at this in a way that we can maybe find something that’s not particularly helpful to that client. It’s more helpful to the insurance company.
Cindy Speaker: Yeah.
Debra Matherne: If you go back to who’s paying the person and what is their goal and you think about that it’s not always the best idea to be communicating with that nurse.
Cindy Speaker: In other words you can’t really … You cannot count on the insurance company to be on your side?
Debra Matherne: There’s … Even if they give you wrong information they’re not always held responsible for it. You really do need to … One of the things we’ll say to people is you really do need to get an attorney so that you have advice that you know is 100% in your favor. There’s nobody looking to take what you’re saying to turn it against you but we’re looking to try to help you and make sure that there’s a fair outcome in your case.
Cindy Speaker: Right and that really leads to the fifth one, Debra, because this one you said is a lot of claimants, they sign documents without seeking legal advice or they resign, retire or voluntarily quit their job.
Debra Matherne: Yes. Again, I think a lot of people, right after they do it, this is one, they do it and they actually realize it was probably a mistake. They get caught up, somebody puts documents in front of you and they say you should sign it and you sign it and later you think, I’m not sure I should have done that. If you’re having that feeling it’s probably a correct idea.
Very early on in the case, often, you’ll be presented with a lot of documents in your case, which again … I say to people, right away it’s a good time to get an attorney, even before you start getting your workers’ comp benefits because again we can help with what is appropriate and what’s not appropriate. Often, in the stack of other documents, there will be what are called releases where they will ask for authorizations for them to gather medical treatment about you. However, if you have a workers’ compensation case the funny thing is they don’t actually need that authorization in most cases. If you have a case the doctor send their records along with their bills. They’re going to have access to the relevant workers’ compensation documents anyway. Often, when they’re getting those documents signed, those releases, it’s to look to see what else do you have wrong with you or was their anything other than the work injury.
Cindy Speaker: Right.
Debra Matherne: You’re signing thinking it helps with your case when the release is actually going to be used to try to see if there’s documents out there that can stop them from paying you or limit their exposure.
The other thing about the releases, most of the ones that we see Cindy, are that they’re too broad. Why would someone need to see everything dating back to high school if you’re 50 years old. That’s a little far. It should be for a certain number of years. Or, if you’ve injured your elbow at work why would anybody need to see anything and everything including your OB/GYN records if you’re a female or any other type of records. They really should be limited to something more relevant to the workers’ comp case. Often, they don’t have dates on them. Those could be … Any date can be put on those as well to search and again, they’re already getting what’s relevant to the workers’ comp case. You really should have somebody who talks it over with you.
There are times when I feel it is absolutely appropriate to sign a release. For example, if you claim you have an elbow injury and you had one two years ago, I think they’re entitled. They should get to look at those to see, is there really a new injury or worsening? In those cases you can talk it over with your attorney and perhaps a mutual decision can be made that yes, these are absolutely appropriate documents.
Just don’t sign anything in front of you.
Cindy Speaker: You know, Debra, I’d like to do another broadcast with you, if you’re willing, on tricks of the insurance company. It sounds like they have quite a few tricks that kind of cause the claimant to stumble and ruin their own case.
Debra Matherne: Well, they’re doing their job. You have to just be cautious because again, you know, their ultimate goal is that they don’t want to hemorrhage money on a case. They want to try to control it as much as possible so their job is to look for ways to stop the flow of money, quite frankly in many cases. Their goal is to take care of people and I think that not everything is a trick but there certainly are some tactics that are used that are not beneficial to you if you’ve had a workers’ compensation injury.
The second part of that that you mentioned was signing papers where you’re resigning or retiring or voluntarily quitting your job. This can be fatal meaning they can absolutely stop you from receiving workers’ comp wage/loss benefits. The idea of workers’ comp is you’re getting paid those benefits and you would otherwise be working. If you’re resigning or quitting or if you’re filling out retirement paperwork that means you would not be having any income. That gives the insurance company, then, actions that they can take against you to try to stop those checks. You want to talk to an attorney before you make any decision on that because, again, you might otherwise sign something or if you indicate you’re resigning, retiring you might sign something or take an action or speak to somebody saying I’m intending to quit or resign or retire and that could limit your receipt of money benefits in your case.
Cindy Speaker: That makes sense, yeah.
Debra Matherne: Big mistake. That’s a big mistake.
Cindy Speaker: Oh boy, number six. Not considering settlement before it is too late. I’m not sure what you mean by settlement.
Debra Matherne: Well, in workers’ compensation cases after someone has an injury, in most cases, I could probably say all but you never want to say all as an attorney but in most cases those benefits do not continue until death or forever. They’re usually for a certain time period.
Cindy Speaker: Okay.
Debra Matherne: We can’t get into that in one broadcast but normally it wouldn’t be forever. Often people have in their mind that … They’re upset so they’re thinking more with emotion. They’re upset and they’re thinking, I’m never going to release this company from their responsibility for my injury but in workers’ comp cases there often comes a time when you need to be thinking of plan B, like settling with the workers’ comp insurance carrier. There’s a money value to your case. They’re obligated to pay you wage loss benefits and medical benefits. There’s a financial value to that. You can approach a workers’ comp insurance company, when the timing is right, and you can approach them to say, I would take X number of dollars and I will sign off and release you from the case. I will move on and either go back to work at a lighter duty job or I’ll move on and begin on some other type of benefit such as Social Security Disability or something else.
Often, people will wait until things happen in their case that reduce that value. You sometimes want to talk to an attorney about, what about the timing and when I should approach the company. Sometimes they’ll approach you first and say are you interested in settling? If you say no be prepared because their next step is going to be well, what can we do? Maybe we should get surveillance on this person? Maybe we should look further into how to stop the benefits? Maybe we should get another independent medical examination? Maybe we should file a petition against them? If some of those things hurt your case then that can reduce the money value for settlement.
Sometimes people will say to me, years after someone has approached them, now I want to, and the insurance company might say, well, now we don’t want to anymore. Things have changed. The tide has turned. We feel things are more in our favor now. You want to keep in close communication with your attorney about that, about the timing, about the events that are going on in your case and whether there’s a good reason, now, to consider it verses waiting until the value goes down.
Cindy Speaker: Yeah, Debra, do you find that the average person is aware that it would be very helpful to them to have an attorney in a workers’ compensation claim or do the majority of the people try and just deal with it on their own?
Debra Matherne: There’s both.
Cindy Speaker: You see both?
Debra Matherne: You see both types of people. There are some people that come to me right at the beginning. I would say that those cases tend to go the most … That’s the smoothest. The most smooth that it would go is if somebody comes early on, their getting treatment … They’re getting recommendations for legal advice early on regarding where to treat medically, what to do legally in the case. But, there are some people who … They’re almost cautious or fearful about getting an attorney. I think primarily they’re worried about what it will cost. Workers’ compensation in Pennsylvania is a contingent fee. That means there’s now hourly bill that’s mailed to someone. Often a lot of the advice early on there’s not even a charge for it because we’re not legally permitted to charge for anything hourly.
In workers’ compensation it’s a percentage. It’s up to 20%, by law and then it’s if we either obtain the benefits for a client or if they have benefits already and they’re stopped and we win or get those back for them or if there are certain court proceedings that take place where they are trying to stop the checks and we’re able to keep those going for them or if we negotiate a settlement. Generally, it’s not a surprise when the 20% is coming out because it’s something that’s happened through court usually and the judge will ask that person, did you hire this attorney and do you understand they’re going to get 20%? They ask them to actually verify their signature on the fee agreement.
Cindy Speaker: Okay.
Debra Matherne: I think often people are fearful. Some of them have even had other types of cases that were not workers’ comp in the past where an attorney sent them a huge bill so they’re afraid or they’re afraid that might happen in workers’ comp but it doesn’t happen that way. Again, if they have questions on that call and ask. The consultation is free. We can talk to you about not just the case but in how the money part of it works and how the attorney fee works.
Cindy Speaker: Yeah, yeah. Well, last one, we’re down to number seven now and that is not seeking legal advice from a specialist, a workers’ compensation attorney, early in the case.
Debra Matherne: Right, in Pennsylvania, actually there’s a test that has been given that you can become certified to be a workers’ compensation specialist. Both Attorney Bill Kovalcik and I at this office, fortunately, we’re able to take that test and become specialists in workers’ compensation. Also, that work can be even used more generally in that someone who just specializes and does a lot of workers’ compensation benefits.
Today, as the same as with doctors, as an attorney sometimes you’ll find attorneys who practice a little bit of family law, a little bit of real estate, a little bit of this, a little bit of that but workers’ compensation has become fairly involved. It’s sometimes hard if you have somebody who isn’t really specializing in workers’ comp and keeping up with all of that to be competitive for you and to effectively represent you in your workers’ compensation case.
We sometimes get cases where another attorney has had the case for months and then finally realized they’re in over their head and they should now refer the client to somebody who’s more of a specialist in workers’ compensation. Again, some of the things we see that are not done in the files. It’s often better if you ask the attorney, what is your background? Are you … Since there’s this test in Pennsylvania where you can become a workers’ comp specialist, did you take that test? Did you qualify to call yourself a specialist?
Cindy Speaker: Yeah, yeah.
Debra Matherne: Again, you’d rather be safe than sorry.
Cindy Speaker: Yeah, that’s right. Well, now if someone does have questions and they want to reach your office how can they do that, Debra?
Debra Matherne: Well, today there’s so many ways but obviously, telephone, 570-874-3300. Then, www.OConnorLaw.com. That has all of our information on how to reach us.
Cindy Speaker: Yes, well this has been really helpful.
Debra Matherne: And O’Connor is O-C-O-N-N-O-R. I always tell people not E-R, O-R law.com
Cindy Speaker: Yes, that’s good to point that out, O-R at the end.
Debra Matherne: Yes.
Cindy Speaker: Debra, listen thanks a lot for your time today. This is really valuable information and I appreciate it.
Debra Matherne: Thank you Cindy.
Cindy Speaker: To those that are watching either live or on replay please, if you have questions, feel free to leave them in the comment section here and we’ll make sure we get them answered for you.