There are certain things you should know when you choose your workers’ comp defense attorney and other attorneys associated therewith. The purpose of this article is to help you choose a workers’ comp defense attorney who proactively, as opposed to reactively, can help resolve your claims in a manner beneficial to the interests of the employer or carrier and the third party administrator. Also, you will learn what you should expect from an excellent defense attorney and how to work effectively with him or her to achieve the best results in your workers’ compensation case.
Attorney-Client Privilege
First, choose a workers’ comp defense firm comprised of a confidential team where most (if not all) of your communications are protected by attorney-client privilege.
“Protecting the confidentiality of communications between attorney and client is fundamental to our legal system. The attorney-client privilege is a hallmark of our jurisprudence that furthers the public policy of ensuring the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense. It is no mere peripheral evidentiary rule but is held vital to the effective administration of justice. Permitting unfettered access to attorney-client communications . . . would violate the policies supporting the privilege as well as the statutory and ethical obligations of attorneys to maintain client confidences.” (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 715.
Working together with your workers’ comp defense attorney in this role can protect much of the claims file to prevent discovery by opposing counsel. Note the following:
- Communications between you and your attorney, along with the work products developed, are privileged and not subject to discovery.
- In fact, should the opposing counsel inadvertently obtain privileged documents, he or she has a duty to disclose that fact to us or potentially face sanctions under Labor Code §5813.
You and Your Attorney Are a Team, But You Decide
Now that you are speaking with your workers’ comp defense attorney confidentially, your attorney is also a member of your team whose job it is to do the following:
- Evaluate your potential liability
- Provide you with all of your legal options and the potential outcome for each
But you decide! After carefully considering your options, you can decide what strategy works best for you. It is your attorney’s job to carry it through so as to obtain the best result possible.
Teamwork is key. It takes a team to achieve the best outcomes. This includes making sure that both you and your workers’ comp defense attorney have up-to-date information and that you communicate. Surprises are best left for birthday parties.
What Can Help Your Workers’ Comp Defense Attorney Help With Your Case?
How can you give your workers’ comp defense attorney the best running start before passing the baton? Your attorney will need to review, evaluate and analyze the following:
Application and Claim Form
- When was the claim filed?
- Do we have any basis for denial?
- What body parts were originally claimed?
- Do we have an opportunity for multiple QMEs under Navarro?
5020 Form
- When was it filed?
- When does the employer admit knowledge?
- What was the date of hire?
- Who might be good witnesses?
- Where did the injury occur?
- What was the applicant doing at the time of injury?
Statements by the Applicant
- What did the worker first say about his or her accident?
- This information can be used for impeachment during deposition.
- Are there witnesses we should be interviewing?
- Do you have a basis for subrogation, defenses against causation or issues of apportionment?
3-Point Contact
- What defenses might you have?
- Who would make good witnesses?
- What are the employer’s concerns?
- Was there more than one claim reported?
Wage Statements
- Have benefits been calculated correctly?
- Can you prove a lesser rate?
- Are there penalty issues to be concerned with?
- What is the length of employment?
Investigative Reports
- These provide clarity of the claim – all versions.
- Witnesses, statements, documents to subpoena.
- Defenses and issues of apportionment.
- Potential concerns in the case.
Notices to the Claimant:
- Likely to be demanded by the Judge.
- Necessary to establish defenses, credits, overpayments.
- Proof of knowledge (especially MPN issues).
- Panel QME opportunities.
Job Description/Analysis:
- Assist with a return to work strategy.
- Mechanism of injury consistent with the job.
- Issues of cumulative trauma allegations.
- Occupational group number for ratings.
Index Report:
- Sources of apportionment.
- Records to subpoena.
- Possible impeachment during deposition.
Examiner’s Claim Notes:
- You’ve already done so much work!
- Phone numbers, odd statements by the applicant, other red flags.
- Sources of apportionment, notification of non-authorization for medical treatment, witnesses, etc.
- Defenses to and issues under §10909 or LC §5814.
- How did you get where you are today so you can get where you want to be tomorrow?
Personnel File
- What kind of employee is this?
- How long have they been employed?
- Who are their prior employers?
- Sick leave/vacation time prior to injury?
- Write-ups prior to injury claim/conflict with the supervisor?
- Witnesses?
All Medical Information:
- How did the injury begin?
- What was the initial treatment plan?
- Where are we now?
- Have your decisions been made timely?
- Is the treatment consistent with the MTUS?
MPN Information/Notices:
- When was the MPN established?
- Did the applicant have the original notice?
- Is the current doctor within the MPN?
- Has information on how to access the MPN been provided?
Sub Rosa Videos & Reports:
- When were attempts made?
- Can you seek impeachment in a deposition?
- Is the information consistent with the medical reports?
- Do you have a case for referral to the District Attorney for fraud?
Insurance Policy & Insurer:
- Ordered by the Judge to produce.
- Identify the proper client.
- Consideration and identification of retention values.
- Issues of joinder for additional injuries/CT dates.
Your Workers’ Comp Defense Attorney Should Analyze the Issues In Your Case
Your workers’ comp defense attorney should not just be reviewing the information you send but should be analyzing it every step of the way. He or she should be considering, evaluating and reporting on how each fact learned in the case, whether through discovery or receipt of daily mail, helps or hurts our case. In addition, what new information does this fact mean you need and how should you go about obtaining it?
Further Discovery
Your workers’ comp defense attorney should do the following:
- Identify persuasive evidence on all issues.
- Express the most cost efficient, effective and productive means of obtaining that evidence.
- Propose alternate strategies depending on changed circumstances.
Additional workers’ comp defense discovery in a case can include:
- The applicant’s deposition.
- Sub rosa investigation.
- Subpoenaed records.
- Consideration of what medical exams are needed.
You must have a good doctor and your workers’ comp defense attorney should be familiar with all of the physicians in his or her local practice area, along with the judges and the opposition. Your attorney should be identifying medical experts who will best serve your interests, based on education, experience, specialty and reputation within the community.
Your workers’ comp defense attorney should consider and discuss the following with you:
- Cross-examination of all physicians, perhaps even the PTP.
- Strategic calls, letters or appointments with evaluating physicians, witnesses, or nurse case managers in the claim.
- Even the PTP’s opinion can be challenged to encourage MMI status or an in-depth discussion of the facts, causation, apportionment, fraud or any other relevant issue in your particular claim.
- Directed letters to physicians and opposing counsel.
- Witness interviews.
- Research supportive and contradictory case law.
Your Workers’ Comp Defense Attorney Should Be Creative!
You should expect your workers’ comp defense attorney to be creative. Is he or she really doing everything s/he can to minimize your liability? Thinking outside the box in a workers’ compensation claim can often result in early settlement opportunities, creative early resolution strategies, as well as trial or other hearing tactics to achieve great results before the Board.
Knowing the Law
Your workers’ comp defense attorney must be able to intelligently communicate with you about the application of recent and historical legal principles to your specific case. He or she should keep abreast of the ever-changing and fast-paced world of workers’ compensation through proper training, continuing education, giving and attending presentations and industry conferences, reading legal treatises and participating in industry forums, writing pleadings and articles, etc.
What About Unforeseeable Events?
It is the nature of the law that your workers’ comp defense attorney can’t anticipate everything, but he or she should give you an analysis of foreseeable events. When something unforeseeable occurs, how your attorney reacts to those events and how timely s/he reacts can make all the difference in your claim. You should expect timely, thoughtful and proactive communication from your attorney in this area.
Bringing It All Together
After all of the documents have been obtained and the investigation is complete, your workers’ comp defense attorney should timely identify the following:
- The parameters of exposure;
- The reasonable likelihood of prevailing on each issue; and
- Proper value for settlement v. continued litigation with a thorough cost/benefit analysis.
Most importantly, each step of the way, your attorney should outline the benefits and detriments of traveling each path and discuss how you want to proceed!