Articles And Cases

YOU AND THE LAW
Miller Cohen, P.L.C.
By: Norton J. Cohen
October 2, 2004

IMPROVING YOUR CHANCES TO SECURE WORKERS' COMPENSATION BENEFITS

We are often asked how Workers' Compensation litigation can be avoided and how to present the strongest possible case to increase the likelihood of benefits being paid. It is important that injured workers act in a manner that is most likely to result in either the employer agreeing to pay compensation; or, that insures a greater chance of success should litigation be necessary.

REPORTING THE INJURY

The notice requirements of the Workers' Compensation Act state that the employee shall provide notice of injury to the employer within 90 days after the happening of the injury, or within 90 days after the employee knew or should have known of the injury. This legal notice need not be in writing. It is this provision that controls the notice requirements and not the notification rule established by any particular employer. Many employers attempt to enforce a notice period of 24 hours or less. Failure to comply with the employer's rule will in many cases "buy litigation". This is particularly true in the Friday/Monday situations. When a worker sustains an injury on a Friday, but doesn't report it to the employer until the following Monday; the employer will inevitably dispute the case by arguing that the injury occurred at home during the weekend. The employer's defense may be quickly thrown out by a workers' compensation magistrate, but the failure to report the injury on Friday will often result in the necessity to litigate; the end result of which is less money in the pocket of the injured worker because of attorney fees and litigation expenses. If an employer refuses to pay workers' compensation arguing that the notification was not timely, the injured worker should never accept the employer's explanation and walk away from a legitimate case. Always consult your union or an experienced workers' compensation attorney for guidance and evaluation.

MEDICAL HISTORY

Worker's compensation cases are often lost, or disputed, because of inaccurate and incomplete histories given by the injured worker. If the worker believes that the injury or disability is related to the employment, it is essential that the employer be so advised, and that every physician or health care provider seen by the worker, whether it is the company clinic or the personal physician, be specifically advised by the worker of the relationship between the employment and the disability. The injured worker should also make certain that the examining doctor writes down the history given. It is not enough simply to tell what happened if the doctor does not write the explanation on the medical chart. If the case goes to litigation, the doctor will not testify for many months after the injury and by that time unless the history is accurately recorded in the records, the physician will generally be unable to recall the history given.

FILLING OUT SICKNESS AND ACCIDENT FORMS

In many instances, when a worker is injured on the job, the employer will ask the worker to fill out sickness and accident forms while it is determining whether workers' compensation benefits will be paid. Generally, at least one of the questions on the form will concern itself with the relationship between the disability and the employment. The question will generally read: Do you believe that your disability was caused by an injury? Or, do you believe that the injury or disability arose out of your employment? If there is little question in the worker's mind that there is in fact a relationship between the disability and the employment that should be clearly stated on the sickness and accident forms. If, on the other hand, at the time the forms are completed, the worker is uncertain as to whether or not there is a work relationship, the worker should answer the question as follows: "I am uncertain at this time. I am waiting for medical advice." If at the time the disabled worker completes the form, the thought of a relationship between the employment and the disability has not occurred, and the worker answers the question "no", that should not discourage the individual from applying for workers' compensation at the point the relationship between the employment and the disability becomes apparent. While a negative answer to the work relationship question on the sickness and accident form may make the case more difficult, it is certainly not impossible to prove work relationship in spite of that statement.

THE EMPLOYER'S ANSWER

If the employer refuses to consider an injury or disability compensable, the injured worker should never accept the employer's statement as the determining factor in whether to proceed with a claim. In many situations, the employer's analysis of the situation is incorrect. The ultimate decision as to compensability will be made by a magistrate after a workers' compensation hearing, or through negotiations between the attorney for the employer/insurance carrier and the injured worker and his/her attorney. Thus, when an employer indicates that workers' compensation will not be paid, the worker should immediately contact experienced workers' compensation counsel for an evaluation of the claim.

If the courses of action outlined above are followed, the injured worker is more apt to secure workers' compensation benefits without litigation; and if litigation is necessary, the worker's case will be strengthened.

This column appears from time to time in this Local's newspaper and is prepared by the law firm of MILLER COHEN, P.L.C. This law firm works for trade unions, their members and friends. They have worked many years with this Local and its membership. Their office is located at 600 West Lafayette, Fourth Floor, Detroit, Michigan 48226. Telephone number 313-964-4454; Michigan toll free 1-800-221-6021. The firm also has an Allen Park office located at 6715 Park Avenue, Allen Park, Michigan 48101. Telephone number 313-383-2422. Please call our law firm regarding any questions you may have concerning workers' compensation, personal injuries, social security disability or any other area of the law.

SOCIAL SECURITY DISABILITY

While everyone is aware of retirement social security and the benefits that accrue when an individual reaches retirement age, less is known about social security disability. Social Security Disability is a program that pays full social security benefits to individuals who are disabled from performing any substantial gainful employment, and have the requisite eligibility for benefits because they have worked and earned social security wages over a period of years. Social security disability is a very valuable program that pays not only the monthly benefits, but two years after an individual is eligible for social security disability that person is also entitled to the same Medicare health insurance that applies to individuals over the age of 65. While it is generally assumed that you have to be totally disabled in order to receive social security benefits, this is not true in many instances. The social security regulations make allowances for an individual's age as well as for the nature of the disabling condition.

The process for obtaining social security disability starts when an individual goes to his/her nearest social security office and requests disability benefits. Forms will be filled out with the assistance of the personnel at the Social Security Administration. After a period of 90-120 days, an initial determination will be made. If the benefits are not awarded, then the individual has 60 days in which to request a hearing before a Federal Administrative Law Judge. It is at the hearing stage that the lawyers generally get involved in these proceedings.

The law offices of Miller Cohen, P.L.C. would be happy to discuss your social security rights with you, even prior to your initial application. Please feel free to contact us. There is no charge for consultation. If we should represent you before an Administrative Law Judge, you will only be charged a fee if social security benefits are awarded. The fees are controlled by the Social Security Administration.

Again, please contact our firm for a free consultation regarding your rights to receive social security disability benefits.