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. If you follow the directions outlined below, you can improve your chances of securing workers' compensation benefits without the necessity of litigation.
REPORTING THE INJURY
The Workers' Disability Compensation Act (WDCA) requires an employee
to report a work-related injury within 90 days, or within 90 days after the employee knew or should have known of the work-related injury. You are not required to report your injury in writing. The WDCA merely requires you to advise your employer. However, it does not count if you report your injury to a team leader or co-worker. You should know who your employer requires you to report work-related injuries to prior to having an injury. The WDCA controls the notice requirements and not the notification rule(s) established by your employer; however, you should know your employer's injury reporting time frame to help prevent an unnecessary denial of benefits. For Instance, many employers attempt to enforce reporting an injury within 24 hours or less. Failure to comply with the employer's rule will in many cases result in your workers' compensation claim being denied. This is particularly true when injuries occurring on a Friday are not reported until 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. However, if an employer refuses to pay you workers' compensation arguing that the notification was not timely, you should never accept the employer's explanation and walk away from a legitimate case.
Workers' compensation cases are often lost, or disputed, because of inaccurate and/or incomplete histories given by the injured worker to their medical providers. If the worker believes that the injury or disability is related to the employment, it is essential that every physician or health care provider seen by the worker, whether it is the company clinic or the personal physician, be specifically advised 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. You should always request that the medical provider read back the history you provide to verify the work relationship is documented. You should also request a copy of the initial medical treatment record to make sure there is consistency throughout your medical treatment. In other words, consistency in the history is as just as important as accuracy in the history.
FILLING OUT SICKNESS AND ACCIDENT FORMS
In many instances, when a worker is injured on the job, the employer will ask the
injured worker to fill out sickness and accident/short term disability forms while the employer is determining whether workers' compensation benefits will be paid. Inevitably, 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 at work? Or, do you believe that the injury or disability arose out of your employment? If there is little question in the injured workers' 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" or "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 later discourage the individual from applying for workers' compensation. 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. Sometimes sickness and accident/short term disability benefits will be denied if you indicate your disability is related to work. If your employer and/or the workers' compensation carrier has already denied your workers' compensation benefits, when filing out these forms, you should indicate that the relationship is disputed.
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. If you follow the above recommendations, the injured worker is more apt to secure workers' compensation benefits without litigation; and if litigation is necessary, their case will be strengthened. Anytime, 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. We would be happy to answer any of your workers' compensation questions.