Steps of a Workers' Compensation Case

 

 

The first step in a case is to discuss your rights under workers' comp and also what obligations you may have to the employer. If we determine that they are failing to pay certain benefits we believe your are entitle to, we have a number of options available to us. Sometimes we can just write to the employer and/or insurance carrier in hopes that they will voluntarily pay without a suit being filed. Workers' compensation also has a small claims division where certain small claims can be handled, without a lawyer, that are typically small medical bills or small periods of workers' compensation wages that might be owed. Generally speaking in any significant dispute, the attorney will file what is called a Petition for Hearing.

 

"Both Mr. Bott and Ms. Spencer left me with the feeling that they truly care about their clients and use their professionalism to do their very best to make right what is wrong for their client's best interest. Bott and Spencer and staff make a great team.
I was treated with courtesy and respect and everyone on the staff was great to me, being friendly,
promptly returning calls, keeping me promptly and properly informed as to what was going on in my case.  They did a great job for me."

 

James Mastenbrook, Muskegon

The attorney will decide whether or not he/she wants to request Mediation or a Pre-trial. Mediation is where there is an informal meeting between the injured worker, the attorney and the attorney for the employer and/or the insurance adjuster. On smaller cases, mediation is a good tool for getting the case resolved early. It sometimes also helps the client understand the insurance company and/or employer's reason for the dispute. It sometimes takes a number of Mediations before the parties can settle a case or it becomes clear that the case has to move on to the trial docket.
If the mediator is unsuccessful in resolving the dispute, he/she will assign it to trial before one of the worker's compensation Judges. If mediation was not chosen on the Petition, the case will then be set for a Pre-trial. The client does not have to appear at a Pre-trial. We will be there to exchange information with the other attorneys, typically medical records, employment records, etc. The attorneys and the Judge will pick a mutually convenient Trial date, although this does not guarantee a trial on the first time up.

"We feel you did a good job representing our case.  We would recommend you to our family and friends.  Thank you for your service."

Richard Hernandez, Muskegon

Workers' Compensation Settlement vs. Trial

Our clients frequently ask whether or not their case will be settled or if they will have to go to trial. We tell our clients that typically 90% or more of our cases actually result in a settlement before trial. The 10% or less of our cases that actually go to trial, typically go to trial because the parties are unable to agree to a settlement figure or there is some other reason why the case may need to be tried. The Judge will make the decision based on the evidence presented to him/her such as depositions of doctors and the statements of witnesses. The Judge does not award a lump sum of money, as a jury might in an auto accident case, but rather he/she will make a determination as to whether or not the insurance company/employer should have paid certain benefits in the past and whether or not the person is currently entitled to received compensation benefits.

Even if you win your case at trial, the insurance company/employer frequently files appeals of those decisions. What that typically means is that you will start receiving 70% of your weekly compensation benefits while it is on appeal. Any past due monies that were awarded for weekly wages or past due medical are held and not paid until after the appeal is over.

 

Medical Treatment

It is important that you continue to treat with your physicians. The Judges frequently think that when you stop treating with doctors, that indicates an improvement in your condition. Sometimes the lack of medical treatment is due to a lack of finances or refusal of the doctor to treat someone without insurance, however, continuing treatment is important to your case.

"Thank you Mr. Bott and all those who helped me in my case.  All who were involved through Bott and Spencer made me feel confident and no question was unreasonable or went unexplained or nanswered, everyone was very helpful and courteous, even when some of my questions or concerns were possibly confusing to any Bott and Spencer Rep; at times I wasn't sure of the proper term or the right words to use to explain myself. Someone always knew what I was trying to ask or explain. I appreciate everyone's patience with my delayed response or returning any correspondence in a timely manner. It was  a difficult process only in regards to the added stress of potential trials or other processes, however Bott and Spencer and assoc. made it easy to understand all the expected and/or predicted events that would possibly occur. I am extremely satisfied with Bott and Spencer representation! Thanks does not seem to be enough, knowing I can move on with my life and do what I can do to pursue any job and career that will accommodate my physical restrictions. I'm happy that my case was resolved quickly so I can move on with my life quicker than I expected. Thanks from the bottom of my heart Bott and Spencer!"

 

Jessica K Brown-Watkins, Branch

Insurance Investigators

The insurance company and/or employer will sometimes hire a private investigator to go out and check up on you. What they are looking for is to see whether you are working and not disclosing that and whether or not you are performing activities that are inconsistent with your claim of disability. Our Judges do not require you to be bedridden in order to win a workers' compensation case, however, they will look closely at any evidence that suggests your disability is not as bad as you claim. For that reason, do not attempt to manipulate the doctors, or others, regarding your disability.

Medical Examinations

The insurance company will frequently send you to doctors in preparation for the defense of your case. Frequently the doctors have a number of "faking" tests. They also have a number of other tricks to see whether or not a person is honestly conveying their symptoms. The quickest way for you to lose your case is to give the Judge reasons to suspect whether or not you are being truthful or honest in your presentation. For that reason, report exactly what is going on with no embellishment or exaggeration.
The insurance company and/or employer can have you examined by a number of people in defending your workers' compensation case. They are required to pay you mileage to and from the health care provider that they are having you see. You must attend any medical exam that is set up. If you fail to attend, the Judge can suspend or dismiss your workers' compensation Petition. He may also require you to reimburse the insurance company for the cost of these medical exams, which can be upwards of $600.00. If you receive a notice of an Independent Medical Exam and they have chosen a date and time that is absolutely impossible for you, please contact your attorney immediately.
We may also have you examined by a doctor of our own choice and it is mandatory that you appear for such an exam.

What is the value of my case?

We are frequently asked by clients how much their case is worth. Many factors go into how an attorney values a workers' compensation case. Please be assured that we will never settle your workers' compensation case without your permission. Generally speaking, there are a large number of issues that are factored into determining what an appropriate workers' compensation settlement would be. The two most important factors are the workers' compensation rate and disablement. The workers' compensation rate that you may be entitled to is based on 80% of your after tax income. They determine your average weekly wage by going back one year from your date of injury, taking the highest 39 weeks of income and dividing by that number to come up with an average weekly wage. Depending on how high your comp rate is, the cash value of any discontinued fringe benefits may be added to the gross wage, and your work comp rate is established using both figures. The rate is then determined by using a rate table based on the number of dependents and your tax filing status.

There are other factors that effect a settlement, such as your willingness to return to light duty work, your education, other job skills you might have, residual work ability that you have, etc. Every effort is made to maximize the recovery for clients.

"I was happy with my representation by Bott and Spencer for the reason that I was treated with courtesy and respect, my phone calls were returned promptly, I was kept informed about the progress of the case, and my questions were answered to my satisfaction. I would not only use Bott and Spencer for legal representation again, but I would recommend them to my family and friends."
Susan Smith, Mancelona

Wage Replacement / Medical Bills / Rehabilitation - Retraining / Mileage

Workers' compensation pays for basic benefits: (1) They pay disability benefits during the period of time you are unable to work because of a work-related injury. That is premised on 80% of your after tax income. (2) They also pay 100% of all medical bills under Michigan Cost - Containment (that means the State of Michigan tells the doctor how much the procedure should be, regardless of what he charges), all prescriptions, braces and other appliances as needed. (3) It also pays for rehabilitation and retraining in certain circumstances. Workers' comp may pay for home modification if you are paralyzed. (4) They pay for all of the mileage to and from your health care providers. It is important that you keep a master list of all the unpaid medical bills you have and provide them to us prior to trial.
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Work and What it Means to You

The quickest way to lose a case in workers' comp is for an injured worker to refuse to do light duty work that the Judge ultimately believes you could have done. Never reject light duty work without discussing it with us first.

Subsequent Employment

Before starting any other job, please consult with us regarding the affect any subsequent employment will have on your workers' disability compensation claim. Generally speaking, the insurance company/employer is allowed credit for the wages you earn during the same period you are claiming workers' compensation benefits. If you do start a job, keep all of the paycheck stubs so we know how much money you have earned and can calculate the amount of partial compensation, if any, that might be owed to you.

"Thank you for all you have done in the handling of my case. Everyone on your staff I ever talked to has­­­ been very nice to speak with and very helpful at the time of any calls. It was a long haul and I appreciate your dedication to fighting  and winning my case."

Debra Hilton, Kalkaska

Time Limitations

Workers' comp has several time limitations that apply. If workers' comp has already been paid, then an employee is limited to going back one year from the filing of a Petition for Hearing in order to recover unpaid benefits. If no workers' compensation benefits have been paid, then there is a two year back rule, meaning you must make a claim within two years of the date of injury, last day worked or onset of disability. We tell all of our clients that they should consult with their attorney any time the insurance company is refusing to pay benefits they believe they are entitled to receive.

Unemployment Credit Weeks

The Michigan Employment Security Commission allows for a preservation of unemployment credit weeks. This needs to be done within 90 days of going off of work. You need to go to your local unemployment office and request a preservation of unemployment credit weeks form which needs to be completed by your doctor. Unemployment will then allow you to save the unemployment credit you currently have built up in the system for possible future use. The reason the preservation becomes important is if you end up being disabled for an extend period of time, unemployment requires you to have worked so many weeks out of the last 52, and if you have not preserved the unemployment credit weeks, you will fail to qualify for unemployment in the future.
Some people that have a relatively modest impairment, that is one that prevents them from working at their regular job but does not prevent them from other types of employment, will sometimes choose to draw unemployment benefits while they pursue their workers' compensation claim. It is important that you not make an inconsistent claim, and for that reason, when you fill out your application for unemployment benefits, you must state what your restrictions are/or what limitations you have on your employment activities. If you tell unemployment that there are no physical impairments whatsoever, you may be barred from making an inconsistent claim in workers' compensation court. Any unemployment benefits that you draw are taxable and they are also deducted, dollar for dollar, off any workers' compensation benefits that may be owed to you.

Never Quit

We instruct our clients that under no circumstances should you quit your employment without discussing it with us first. Generally speaking, it can have serious adverse consequences on a workers' compensation claim should you voluntarily resign your employment. The reason for that is you prevent the employer from providing you light duty or favored work which might reduce or eliminate the workers' compensation benefits they might have to pay to you.

Pension or Retirement Benefits

Section 345 of the Workers' Compensation Act allows the employer to deduct a number of benefits from workers' comp. One of those benefits is any company paid retirement benefit, such as a pension, 401K contribution, profit sharing, etc. Do not withdraw any monies from your pension, 401K, etc., without consulting with us first. Such a withdrawal can have a significant impact on your workers' compensation case. There are also tax penalties that apply to these pension monies. If the employer requires you to exit a pension plan, you should then be rolling the money over to an IRA or ROTH IRA account so as not to incur any tax penalties and to prevent a work comp offset.