Twelve Mistakes That Can Ruin Your Workers’ Comp Case
Mistake 1: Failing to Act Immediately at the Time of the Accident
At the time of an accident or injury a worker may be embarrassed, dazed or disoriented. They may not be thinking as clearly as they normally would, even if they have no outward appearance of injuries.
Certain things should be done at the time of the accident including remaining calm. If other workers witness an employee getting injured, they most likely will offer aid and assistance to the worker and will have their own version of events. However, your version of the events leading up to and after the accident will be vital to your case.
As soon as possible you should document everything you can remember about your accident including, what you were doing prior to the accident occurring, at the moment of the accident, and immediately after the accident; make note of anything that was said by you, your co-workers, and emergency personnel. Details you may think are insignificant can prove to be critical to your claim at a later date. The more time that passes after an accident, the more details will be forgotten. How many times do we say to ourselves, “I should have written it down?” It is for this very reason you need to write down the details before they slip from your memory.
A record should be kept of the nature and extent of all injuries and any pain or symptoms you may be having as a result of your injuries. A good method to accomplish this is to purchase a separate calendar to keep track of your doctor’s visits and symptoms. It can be a wall or pocket calendar, or something as simple as a printout from your computer.
Finally, make sure to keep copies of everything, including all costs associated with the injury. Those costs may include loss of wages, travel to and from doctor’s appointments, special services, or necessary after-care. Also, get copies of all of your doctor’s records, x-ray, MRI or CT results, and lab reports every time you have an appointment. This can’t be stressed enough. It will save enormous amounts of time, energy, and expense rather than you or your attorney having to do it at a later date. Keep these and the corresponding medical bills together in a folder or large binder.
Mistake 2: Failing to Inform Your Doctor of the Details of Your Workplace Injury
It is important to tell your doctor everything you can about the details of your injuries from this accident and any prior injuries to the same part of your body, also known as “pre-existing” conditions. Generally when people are asked “how are you?’” they politely respond “fine.” However, when your doctor asks this question, he or she really does want to know how you’re feeling, not merely exchanging pleasantries. Be honest with your doctor about all of your symptoms, including changing and evolving symptoms.
If you are feeling better, let your doctor know. It is imperative that you do not embellish your injuries as discussed below.
Mistake 3: Falsifying Your Injuries and Symptoms
Sometimes people feel the need to embellish their symptoms or fabricate additional injuries in an effort to strengthen their claim. Unknowingly to you, doctors will generally perform several tests during your examination to determine if you are exaggerating your injuries. While this might be tempting, it can also be the end of your workers’ compensation case.
If a doctor believes you are embellishing your symptoms to bolster your claim they will note the term “malingerer” (which means faking or exaggerating injuries) in your medical records and that can destroy your case. This is a bad idea as it can actually devalue your claim, or dismiss it altogether. Additionally, insurance fraud is illegal; the risk is too great and the benefit too little.
Mistake 4: Failing to Select Your Own Doctor
This is a mistake that an injured worker may not even be aware they are making. Larger companies often have doctors on staff or retainer for employee injuries. The injured employee may wrongly assume that they have to see and be treated by the company doctor, and frankly I believe that is exactly what these larger companies want you to believe. In fact, the Illinois Workers’ Compensation Act protects the injured employee’s right to see and be treated by the doctor of their choice, as well as, any other medical provider the primary physician recommends. In addition, the injured worker is entitled to a second opinion, as well as any services or tests these secondary doctors recommend as part of their overall treatment plan.
Mistake 5: Failure to Follow Your Doctor’s Advice, Orders, or Treatment Plan
Another way your claim can be diminished or denied is by not following your doctor’s treatment plan or advice. If your doctor orders follow-up tests or physical therapy, it is extremely important that you follow up on everything, even if you are feeling better. Patients often think of their treatment like aspirin – take two and you will feel better.
When they feel better they wrongfully assume they can discontinue care. However, if your injuries could be treated this way you wouldn’t need to file a workers’ compensation claim. Symptoms often diminish during treatment but can rapidly return, or even worsen, if treatment is discontinued. Failing to follow your doctor’s advice is the easiest way for the insurance company to argue that your injuries are not as serious as you are making them out to be.
Contrary to exaggerating your injuries, you should tell your doctor everything about your injuries. About all symptoms you are experiencing, no matter how minor, as well as any prior injuries you had before the accident. Many clients wrongfully believe if their injuries were pre-existing they have no claim.
Mistake 6: Failure to Return to Work on Light-Duty if Your Doctor Says that You Can
Your doctor may advise you to go back to work with lesser responsibilities than you had prior to your accident. Even if it seems like a job you are overqualified for or beneath you, failing to return to work when your doctor states you can will only bolster the employer’s defense that you really do not want to get back to work.
If you honestly do not think you can perform the duties being asked of you, discuss your concerns with your doctor. If your doctor still feels you can do what is being asked of you, and then return to work and document any pain, discomfort, uneasiness, or other symptoms that arise so you can follow up with your doctor and make any revisions to your duties as necessary.
Mistake 7: Performing Acts Beyond Your Doctors Restrictions
Even when people are sick or injured they are tempted to do more than what they should. We live in a world when now is not soon enough and it is often easier to do something ourselves than wait for help or assistance. As tempting as it might be to carry in that bag of groceries, walk down a long driveway to get the package you are expecting from the mailbox, etc. wait for the necessary help. Nothing is as important as your health and returning to your pre-injury state.
Mistake 8: Getting Caught on Videotape Performing Acts Beyond Your Doctor’s Restrictions
This is the greatest mistake an injured worker can make. As stated above, it is extremely tempting to do things for one’s self, especially when living alone. However, it is the one time when you do venture down the driveway to get that heavy package out of the mailbox or carry in that bag of groceries when you are caught in the act by a zealous insurance adjuster who has sent out a private investigator for the sole purpose of discrediting the injured worker.
Mistake 9: Assuming That the Workers’ Compensation Adjuster Has Correctly Determined Your Average Weekly Wage (AWW)
As stated prior, it is not uncommon for the adjustor to exclude overtime hours, holiday/vacation pay, or incentives when calculating the average weekly wage of an injured employee. By following the formula set forth in chapter four you can easily figure out your own Average Weekly Wage just by adding up all your pay, with the exception of bonuses (which is different than incentive pay or commission) for the 52 weeks prior to the injury and taking this total pay and divide by 52. The resulting number is the AWW. If you have any questions or need help calculating your average weekly wage contact Bob toll-free at 855-760-6746. The call is free, the advice might be priceless.
Mistake 10: Not Hiring the Right Attorney or Not Hiring an Attorney at All
No matter how nice an insurance adjuster appears to be, do not believe he has your best interests at heart. They work for the employer’s insurance company. The adjuster’s job is to pay you the least amount of benefits and that is in the best interest of his or her employer. This is not to say that all employers or their insurance companies, are out to intentionally deceive people.
In some cases, injuries that do not present long-term health consequences do not require any further action on your part. Only you can decide. The decision should be made with all the facts considered and only after all of your treatment is completed or a treatment plan has been outlined going forward.
An experienced Workers’ Compensation attorney will be able to discuss these facts, pointing out anything that you may not have even considered. An adept workers’ compensation attorney will evaluate any proposed settlement objectively and make any appropriate recommendations before you sign or agree to anything.
Perhaps the most critical factor to receiving a favorable settlement outcome for your workplace injuries is the attorney you select to represent you. Just like doctors that specialize in a particular field of medicine, attorneys specialize in specific practice areas. For the best possible outcome in your workers’ compensation case, you should hire an experienced attorney that has a proven record of success in various types of workplace injury claims.
Mistake 11: Failing to Be Honest With Your Attorney
It is imperative that you disclose everything that could be relevant to your case with your attorney. This includes prior injuries, current medical conditions, any doctor’s care you are under, prior legal issues, financial issues, alcohol or chemical use, employment history, or anything your employer’s insurance company can use to discredit you. It is important to remember your attorney is fighting for you and can’t defend something he/she is not even aware of.
In today’s day and age it is difficult to keep things confidential. With a few keystrokes, anyone can access public information online about you through the FOIA (Freedom of Information Act) including prior arrests, property transactions, bankruptcy, prior and pending lawsuits, and all court proceedings. With a little foresight and savvy, an insurance investigator can track your activities and whereabouts through social media sites.
People unsuspectingly post details and pictures online that can devalue or jeopardize their entire claim. You can be sure the insurance companies will have someone checking, at least intermittently, to see what you are posting online that they can use against you. It is advised that you not discuss the details of your case with anyone except your attorney while the outcome is still pending.
Mistake 12: Giving a Recorded Statement or Signing a Medical Authorization for the Insurance Company
You do not have to give a recorded statement or sign a medical authorization. Much like a criminal case, anything you say can and will be used against you. My clients are often shocked when they find out they were never required to give a recorded statement. The adjuster may tell you they can’t proceed with your claim until you sign certain paperwork.
They may tell you it is just part of their procedures or policy, or even that your employer requires it before paying you. There is no law or rule that requires you to give a recorded statement. The insurance company may have this “policy,” but it does not mean you are bound by their “policy” or even that the “policy” is enforceable.
If you, or someone you love, has been injured on the job call Bob and put his 20+year of experience to work explaining the law and letting you know your legal options. During the initial evaluation, Bob will take a detailed look at your case and let you know whether you need an attorney and exactly what he can do for you.
The evaluation is FREE. You will not be pressured in any way to sign a contract. After hearing the details of your case, Bob and you can decide if you need an attorney, and if so, whether his law firm is right for you.
For even more information see our Illinois Workers’ Compensation FAQs Page.