Injured at work & not work related lawsuit question

nietra · August 2005

Have any of you had an employee injured at work, had your work comp carrier determine it wasn't work related & denied and then had the employee sue?

I know the work comp carrier is responsible for everything from this point forward but I'm getting requests from attorneys for documents, etc (which I'm sending on to the work comp attorney for his advice as to what to send) and I'm just wondering how it turned out for you? How long before it was all resolved?

Just curious more then anything on what to expect.

Thanks
Nietra

TN HR · August 2005

I have had this happen once before. Treat this as you would any other W/C suit. Do not communicate directly with Plaintiff's counsel. Any requests for production should go by way of your attorney.

As far as timeline, well, that's tough to predict. I can tell you that we just put the one to bed last week and the EE had been injured in June 2002. We got our a** handed to us by the judge, so we're appealing. Long story short, degenerative hip disease which neccesitated a full hip replacemement. As to causation, well, his honor felt thirty days in our plant did it. He fully ignored expert medical testimony which contradicted this.............Apparently he gets reversed quite often.

Good luck.

Gene

LarryC · August 2005

You can expect about a year for getting the Independent Medical Exam (IME) done, getting through the discovery precess, the claiment will be deposed, and then a hearing will be set up. The hearing will be your only involvment as far as having to show up for anything. Then just before the hearing, the judge will lean on the lawyers to get it settled so that she/he doesn't have to listen to any of it. Before any settlement is final, your lawyer will confer with you and the w/c carrier for approval. These are usually hallway sessions and then the lawyer disappears back into the room until she/he comes out again with another settlement for you to agree on. Your lawyer will be trying to push you toward the middle, so hold your ground. You and the w/c carrier should be close buddies during these hallway sessions. You'll be under some high lawyer pressure to settle, so you need to stick together. All in all it's a good rush and I rather enjoy it.

LivindonSouth · August 2005

What kind of 'injury'?

We have three going on right now where the (ex)employees claimed work-related and the carrier denied them. (1) employee claimed he hurt his foot at work but told the doctor he hurt it three weeks earlier. (2) employee claimed prior injury during a fall had caused her knee to hurt again nine months later but doctor says it's degenerative joint disease due to weighing 350 pounds with a 30 year history of knee problems. (3) employee is some sort of back brace, can't breathe, smokes four packs a day, was exposed to agent orange in '72 and claims he's sick because we removed his stool at his work station. All of these are in their second year. We have no interraction with their attorneys.

Number (1) only involves about $4000 but we are going to send a message that we are not an easy mark for this foolishness.

nietra · August 2005

In the employees own words...she got up to walk to another area and her body went forward but her legs/feet did not and she broke her shoulder. Not disputing that it happened at work but the work comp carrier is stating that it didn't meet the 2nd point of the two prong test that it happpend "as a condition of employment" and denied the claim.

I know that I have very little to do from this point forward but just curious as to what to expect.

Thanks
nietra

LivindonSouth · August 2005

I think it was Larry who indicted you don't have much to do. My experience has been the opposite. I hate like hell to see an envelope from our comp carrier's attorney (thus ours). I know it will put me to work for hours. Each time it's usually the same, four or five pages of interrogatory questions, requests that we copy every single page of the medical, training, and personnel files with a complete analysis of each and every single thing the employee has done here throughout his/her history. Also a list of each employee who had any sort of exchange with the plaintiff and who said what and who provided what forms or made what calls. Plus having to attend each deposition and they average three hours. It goes on and on and is anything but a seat in the bleachers.

A piece of advice: Lay off anything you can on the comp carrier. For example; when asked by your attorney to provide copies of any and all documents related to the injury or the subsequent claim or even the first report, tell him that the comp carrier is the custodian of all of those records. Let him get it from them. You pay the carrier for that too.

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

LarryC · August 2005

Oh yeah, that little detail about all the prep work you have to do so that your attorney is well equipped, that's a "must do". How did I leave that out?! I've never had to attend any depositions, but have had to answer interrogatories and submit affidavits. The only time I've had to leave the premises to go somewhere was to the hearing. In between there are always the phone calls from your attorney and the w/c carrier. Sorry, Nietra, if I gave you idea that there's not much to do, but in my experience, the only time you'll be called AWAY is to the hearing.

LivindonSouth · August 2005

Our attorney feels like it's beneficial to have the employer's representative at the interrogatory table when our comp doctor's are being deposed, since we are the ones with the relationship with him and we are the ones who make the referrals to him. Seems to get a more complete version of the truth out, since they do live off our relationship with them. And it's especially helpful to our case when we are sitting across the table from the employee/ex-employee or a supervisor or witness being deposed.

Maybe you won't ever be involved in the depositions. Maybe you will. And don't forget that that attorney is working for you. You can attend the depositions if you want to. It's a great experience.

HRinFL · August 2005

I agree with The Don that attending depositions is very beneficial. It gives you alot of information. How dedicated to the claim is the plaintiff? How dedicated is the plaintiff's attorney? It lets you evaluated the performance of your attorney. What is the relationship between the plaintiff and his or her attorney? What are the issues that the plaintiff's attorney is focusing on? Who do they view as key witnesses (i.e. alleged harasser, discriminator, decision-maker, etc.). What will a jury think about the plaintiff - will they like him or her? How will the plaintiff's attorney come across to the jury - will they like him or her?

Additionally, your witnesses will be more comfortable if they have a representative there from the employer. They are more relaxed if they receive prep for the deposition. I think it is very important for you to attend all you can, but you should absolutely attend the plaintiff and decision-maker's depositions. I think this also sends a message to the plaintiff and counsel that you are serious about litigation.

LivindonSouth · August 2005

Super advice! Just today we remarked about last week's deposition, "You know, we could have settled this for less than four thousand dollars and now we'll spend ten or more, but, our intention is to send a message throughout the plant that we are not an easy target."

Eroj · August 2005

Hi, I don't answer that frequently but this is a sore spot for me. I handle HR and safety for our company (150+ construction) so workers' comp and discrimination cases were plentiful when I started back in '95. I used to work for the insurance side of the fence so I know who is supposed to do what. Consequently I am very involved in all matters of workers comp, liablity, safety, OSHA, etc. I have been to so many depositions, hearings, testimonies, etc., that I feel like I should have a marked parking spot down at the state industrial commission's building! Goodness knows, I am on first name basis with most of 'em!
So get involved but remember (as The Don said) the attorney AND workers comp carrier work FOR you. You pay them, therefore, you tell them what to do. You ask for advice, but be aware that you are their bread-and-butter so make sure their not dragging out a procedure to earn more. Good Luck! Oh, a great spin off... your current employees will love you for defending their rights and not letting less than honest persons hurt "their" company.

Injured at work & not work related lawsuit question

Comments