Using Evidence to Your Client’s Advantage: Claimant and Respondent Strategies
A. Official Medical Records
It is always absolutely essential to obtain all relevant medical records and even those that you might not consider pertinent at first may become so. Specifically, we always ask our clients where they have been treated for the particular work injury being discussed, but we also ask if there have been prior work injuries and if so by whom they were treated. Further, in the course of the discussion of the case, I ask whether my clients have any other illnesses or injuries which impact their ability to work. This question will sometimes bring up matters which the clients may not consider relevant but which need to be investigated. For instance, the work injury may be the back but the clients may forget to tell you that they’ve received extensive chiropractic treatment on the neck in the past and maybe that chiropractic treatment did in fact go down into the back a bit. The medical records can frequently be obtained from defense counsel to save money, but it is taking a risk that you may not get them all or you may not get them in a timely manner. I usually request and pay for the records and then they are reimbursed through litigation costs at the end of the case.
B. Second Medical Opinions
Under the current Pennsylvania Workers’ Compensation law, if the employer has a posted panel of physicians, the claimant is obligated to attend one of these for the first 90 days in order to have the medical treatment paid for. A notable exception is when surgery is recommended. At that point, the claimant is entitled to a second opinion of one’s choice. It is very important that the client understand that this is not a decision to be made by the nurse or the insurance adjuster but it is the individual’s choice. I do not specifically recommend particular doctors, although I will suggest practices that have a good reputation. These practices would include Hershey Medical Center Bone & Joint Institute, which has over 50 orthopedic doctors; Orthopedic Institute of Pennsylvania; Brain Orthopedic at Lancaster General Hospital; etc. It is important that the doctor be both confident and reputable, and I think if lawyers are referring clients to specific doctors, than an ethical breach may occur. Further, if the doctor does not treat the client properly, there may be repercussions back for the attorneys who ha made the referral. Further, after the 90 days has expired from the date of first treatment for the work injury, the claimant has the right to seek a second medical opinion. Notice must be given to the Workers’ Compensation adjuster of the change and I always encourage my clients to choose their own treating doctor. Also, I frequently suggest that surgery not be done by the original Workers’ Compensation doctor. In some instances it is the case that I am not sure that the Workers’ Compensation doctor has the requisite expertise. At other times, I am concerned that the Workers’ Compensation doctor is being pressured by the insurance company to release the claimants before they are ready to return to work without restrictions. Since doctors have such a huge role to play in the Workers’ Compensation arena, this area is one of the most important areas to spend time with your client in terms of having them understand their rights and getting a doctor who is expert in their area, takes time to listen to the clients, and is willing to both express a firm opinion on behalf of their patient and not be intimidated by the Workers’ Compensation insurance carrier. Really, what I look for is doctors with a great reputation who is a straight shooter and is admired by both defense and claimant as knowing what they’re doing. In this manner, our clients get the best possible treatment and the legal outcome generally follows suit.
C. Documentation Of The Recovery Process
I always urge my client to keep a notebook on when they go to a doctor, the name of the doctor, the date, the treatment provided, and their reactions. Documentation of the recovery process is important and I also ask the clients to get a note from the doctor and/or physical therapist after each visit and keep a copy for themselves and send a copy to me. If we are in litigation, I do provide it to opposing counsel. Also, while I do not accept the original CDs of MRIs and X-rays, I do ask the client to provide me with a copy of the report of the X-ray or other effective examination if it is readily available. If it is not, I obtain a copy and again provide it to opposing counsel.
D. Pre And Post MMI Jobs Created
As you may know, the employer has the right to make up a job, and if it is within the limitations of the client, the client has the obligation to perform the work or lose the right both to the job and to Workers’ Compensation benefits. Many people do not understand this point and some time is spent educating my clients on this aspect of the law. One of the examples that an employer used which backfired was that it had my client tying flies in a windowless basement for fly fishing. The employer had thought that would cause my client to flee, but instead he quite enjoyed the job, and when the employer surrendered and offered a good settlement via the insurance company, my client was disappointed that he could no longer continue his job. I always tell my clients to do their best, put a smile on their face, and behave as if they’ve never had such a good time. Really, this situation becomes a game of chicken, and therefore it is important for the claimant to take this seriously and give the best effort. Usually, once it is clear that the claimants will perform the post MMI job which has been created to the best of their abilities, resolution soon follows. I have stopped representing clients who have refused to try the offered job. I feel that the person is acting in bad faith. Even when the job seems impossible to perform, I suggest the individual try it even for an hour, so they can then tell the doctor why they couldn’t perform the job.
F. Accident Reports
When a client signs up with my firm, I always contact the Bureau for the relevant documents. Accident reports can be very helpful in terms of establishing notice and will sometimes give vital information regarding the date, time, and circumstances of the injury as well as the nature of the injury. It is important not to overlook this piece of evidence.
G. Employment Records
I frequently will request employment records together with the entire personnel file, and if not provided forthwith, I will request the Workers’ Compensation Judge to issue a subpoena. There is good information in these records such as job performance, absences, prior work injuries, evaluations, disciplinary history, etc. It gives you a window into the employment world which cannot otherwise be obtained. It is also very important if there is an undercurrent of retaliation after the work injury occurs. Also, the employer will sometimes terminate the employee, arguing willful misconduct as a defense in the Workers’ Compensation case. Having the entire personnel file is absolutely critical in those circumstances to adequately defend your client. Further, it can be used for the Unemployment case, which frequently follows.
H. Witness Statements
If possible, get and read your own witness statements. By this I mean, ask the claimant, “Did anyone see what happened?” Ask for the name and contact information for that person. I think it’s a good idea to contact the potential witness and ask for observations if the person is willing to provide them. Also very important is getting the witness statements from the defense attorney for whom the individual chooses to call to testify. According to the rules, they must provide them prior to the hearing. I’ve been in situations where a stack of statements was provided just as the defense was about to call the witnesses. In that case, I quickly surveyed the witness statements and was able to cross examine the witnesses effectively. The matter involved a case where the client had tested positive for marijuana and the employer was using it as a defense in the work injury. I was able to use the witness statements to establish that the witnesses had seen the claimant just prior to the injury, in some cases smoking cigarettes and chatting on break, and that the client had no unusual behavior and was intoxicated in no way. This approach was successful in preventing the drug defense which the employer had intended on using. We were able to establish liability and won a very substantial award as a result.
I. Insurance Carrier Doctor Background Incompetency
It is important to review the resume of the insurance carrier doctor. Generally, I do not try and pick apart their credentials other than to establish if the individual does not have the requisite expertise in the specialty for which the person is about to testify. You can ask how many claimants the person treats per month versus how many defense depositions they do if you are reasonably sure that the doctor mostly does defense depositions. I will ask how long the individual spent with the patient and the background that was obtained by the doctor. Generally, it doesn’t pay to antagonize the doctor because at some point you may be able to get the person to concede a small point which will help you in your case. I always believe in using schmoozing as opposed to confrontation.
J. Use of Expert Witnesses
In some Workers’ Compensation cases where we have two and three different doctors, we will do the deposition for one claimant. Of course, this approach is expensive, but depending on the nature of the injury, it is essential to have the correct expertise for each body part. For instance, we’ll have an orthopedic surgeon comment on the back injury, a neurologist on the head injury, and an opthamologist on loss of sight. These issues can all occur within one injury to one person and must be addressed separately. It is expensive to litigate in this way, but it is critical to fully develop the case. Again, litigation costs are reimbursed either on winning a case or negotiating a settlement, so keep this point in mind. Further, I believe it is our duty as professionals to do the best possible job for the client and having the right experts is a big part of it. When the case has demanded, we have used toxicologists. We have not had a case where an accident reconstructionist was necessary, but I could foresee that item could be the case given a complicated auto and/or truck accident.
K. Social Media Landmines
Personally, I do not have a Facebook page and we periodically warn our clients not to say anything on Facebook that they don’t want the world to know. Judges may look at a client’s Facebook as well as defense attorneys. I recently won a case based on a LinkedIn entry that a person had put in which demolished the defense. Similarly, you might warn against Instagram, tweeting, and any other form of communication on the smartphone or computer which the client might otherwise not think twice about using. My rule on this is akin to the way I was brought up with my mother saying “Never do anything that you wouldn’t want read about on the front page of the newspaper.”