Top five mistakes made after a job injury

work, injury, claimWhat are the top five mistakes made after a job injury?  As an attorney that represents injured workers, this is something I have thought about quite frequently.  If I had to pick my top five, they would be as follows:

  1. Failure to report the accident to the supervisor or manager. Pursuant to the statutes governing worker’s compensation claims in Florida, an employee is required to report an accident to the employer within 30 days after the date of the injury.  The employee has 90 days after disability begins in occupational disease cases.  To sufficient “report,” a work accident, employees do not need to complete any kind of formal reporting document.  An employee will be deemed to have sufficiently reported an accident by merely advising the employer of the injury.  There are some exceptions to this 30 day reporting requirement.  However, rather than have to argue you reported an accident timely as a result of the circumstances in your case satisfying one of the exceptions, it’s best to report an accident immediately.  The longer an employee waits to report an accident, the more suspicious employers and carrier become.  A delay in reporting an accident creates questions such as: did this accident happen at home and is the employee trying to claim it happened at work?  How serious could their injuries truly be if they went so long without reporting it or receiving medical care?   Although reporting an accident immediately is best, there are times when people will not make an immediate report for a number of reasons.  Sometimes people want to see if they feel better in the morning.  Sometimes people don’t realize the significance of the injury and its impact on their functional capacity until some time has passed.  Other times employees are afraid that if they report an accident, then they will be terminated.  Whatever the cause for the delay, the sooner an accident is reported, the better.
  2. Failure to disclose previous accidents, injuries, and medical treatment. A workers compensation carrier can suspend benefits and deny a claim if they can show that an employee knowingly or intentionally made any false, incomplete, or misleading statements (whether oral or written) in an attempt to secure workers’ compensation benefits, or in support of his claim for benefits.  See 440.105(4)(b)2., Fla. Stat. and Clark v. R&L Carriers, (Fla. App., 2014), opinion copied below.  In Clark, the claimant did not disclose that he received previous treatment for injuries sustained in an earlier accident.  The failure to tell his authorized treating physicians about his previous injuries was considered to be fraud.  He ultimately lost his entitlement to any worker’s compensation benefits as a result.  So, when filling out medical history questionnaires, if speaking to an adjuster, nurse case manager, or authorized treating physician, it is important for an injured employee to disclose previous injuries.  The obligation to disclose previous medical treatment is important even if the treatment was for a condition, or area of the body, unrelated to the work injury.  People don’t realize that significant of their obligation to give a complete medical history.  Carriers want to know about past injuries so they can try and argue that the major contributing cause (MCC) of a claimant’s need for treatment is due to a pre-existing condition, rather than the work accident.  Litigating whether a work accident is the MCC of the injury and need for treatment is challenging, but not as difficult as litigating over whether an employee committed workers’ compensation fraud.
  3. Failure to inform an authorized treating physician of the full extent of the injuries sustained in a work accident. An example would be someone who injured their shoulder in a work accident.  The nature of the accident and mechanism of injury were such that they also injured their neck.  Because the main source of discomfort is coming from their shoulder, they may fail to mention the neck.  The neck is giving them pain, but they want the main source of their pain treated first, thinking they can mention the neck later.  That is a mistake.  Not mentioning all areas in which you are experiencing pain can result in your not being able to receive treatment to another area of your body, even though it was indeed injured in the same work accident.  Another closely related error is a claimant’s failure to fully inform an authorized treating physician of the full extent of their symptoms related to the work accident.  This obligation to give a full explanation of what you are experiencing symptom wise begins when you are first asked to describe your injuries, and continues throughout the life of the claim.  You may feel better after receiving a certain type of treatment.  You may feel no change in your symptoms, or your symptoms may be worse.  Whatever the case may be, it is important to mention how you are reacting to the treatments received.  In mentioning how you are responding, you should not exaggerate your symptoms.  Sometimes, people will be under the false impression that they need to claim sever pain and discomfort or they will not receive treatment.  That is not true.  In fact, if you exaggerate your pain complaints, surveillance could be introduced showing that you are moving about without the same degree of pain or limitations expressed during your doctor visit.  State your complaints in a simple, clear, matter of fact manner.  Do not overstate or understate anything.  Another issue that comes up regarding your interactions health care providers is a failure to ask the doctor questions about your condition, future treatment, and work status, etc.  We recommend that anytime you see your physician, you write down the list of questions or concerns you would like to address with the doctor.  We understand that the amount of time you spend with the doctor may be brief.  You may not feel that there is time to go through your questions, or you may feel that the doctor is controlling the conversation; not allowing you to get many words in.  So, create a list.  Doing so will not only help you remember every question you have, it can also be handed to the doctor during your visit.  Keep a copy of the list for yourself, but bring the list to your doctor visit.  When signing in, tell the staff that you have a list of questions you would like to discuss with the doctor. Show them the list, and ask if they would like to take it back to the doctor themselves.  Sometimes, they will take it and the doctor will review it before he sees you.  Even if you provide it to him / her during your visit, you are accomplishing the goal of getting the answers you need.
  4. Not accepting a job offered that is alleged to be within your restrictions. After a work accident, a claimant will be considered to be within one of three different categories pertaining to their work status.  The claimant is either on a “no work,” status, a “light duty, or a return to work with restrictions,”or a “return to work without any restrictions.” If a claimant is told by an authorized treating physician that they can return to work with restrictions, the burden shifts to the employer to determine whether they have a job that is within those restrictions.  The restrictions will vary depending on the nature and type of injury or injuries sustained.  The restrictions could be not lifting anything over 10 pounds, no frequent bending or kneeling, no standing for more than a certain number of hours, etc.  If an employer informs an employee that they have a position within whatever restrictions they’re given, the burden then shifts back to the employee and triggers an obligation to return to work in the position offered.  The job might be something entirely different than what the employee was doing before the accident.  The job may even pay less than the employee was earning before the accident.  If the employee refuses to return to the job offered, they forfeit entitlement to wage loss benefits from the carrier.  The carrier will consider the refusal to return to work as a voluntary limitation of income.  In addition, the employer may decide to terminate the employee.  If you return to work in a position that pays less than what you were earning before the accident, the carrier will pay the difference when the amount of your current earnings drops below 80% of your pre-injury earnings.  As long as you are making at least 80% of your pre-injury earnings, the carrier has no obligation to pay wage loss benefits.  Sometimes claimants will refuse to return to work in a job offered because they believe they will not be able to perform the demands of that particular position.  Unfortunately, without actually showing up and attempting to work in the position offered, a mere belief that the position will be outside your restrictions is generally not sufficient.  Sometimes an employee will not want to return to work in a position offered because they believe it will be a hostile work environment.  Again, you put yourself in a much position from a legal standpoint when you actually do show up and attempt to perform the essential functions of whatever position you’re offered.  The carrier is hoping you will refuse the offered job.  Why?  Because, as explained above, a refusal to return to work is considered a voluntary limitation of income.  The carrier will apply the deemed earning defense and suspend making wage loss payments during the entire duration of the employee’s refusal.  Deemed earnings are what the employee could have earned had they returned to work in the position offered.  Weeks in which an employee is not entitled to wage loss benefits due to a voluntary limitation of income are included within the 104 weeks of entitlement.  So, if the carrier does not pay a total of 104 weeks’ worth of TTD or TPD benefits because wage loss during a number of those weeks was a result of a voluntary limitation of income, the carrier is not obligated to make up for any weeks in which they did not pay based on the voluntary limitation of income.

Not retaining counsel when injured on the job.  Can someone injured on the job represent themselves?  Technically, yes.  Can someone with no training as a car mechanic replace their alternator?  Theoretically, yes.  However, neither would be advisable.  Handling your work comp claim as a pro se litigant or attempting to work on your car’s engine despite a complete lack of knowledge or experience is not a wise or efficient use of your time.  Attorneys who handle workers compensation claims know the intricacies and complexities inherent within Florida’s Worker’s Compensation laws.  The laws applied to workers’ compensation cases are so specific that the Florida Legislature created the Florida Office of the Judges of Compensation Claims (OJCC). The OJCC is part of the Division of Administrative Hearings (DOAH). The OJCC is responsible for adjudicating disputes over workers’ compensation benefits.  The OJCC operates seventeen District Offices in Florida. Each Judge of Compensation Claims is appointed by the Governor for a four year term, based upon the recommendation of the Statewide Judicial Nominating Commission.  Judges of Compensation Claims are selected to adjudicate disputes over worker’s compensation benefits, and nothing else.  There is no reason why anyone would have the same degree of knowledge concerning Florida’s Worker’s Compensation laws as an attorney with experience handling exactly such cases.  We undertake representation in worker’s compensation claims on a contingency fee basis.  Meaning, there are no fees or costs paid by you directly.   How fees and costs are paid is more specifically explained in the contract of representation you would have an opportunity to review, discuss, and keep a copy of if you selected our firm for representation.

Matthew Dolman, Florida, Injury LawyerAuthor Bio: Matthew Dolman, Esq. is the principal of the Dolman Law Group, a Florida personal injury law firm dedicated to representing injury victims and their families.  He is a regular contributor to this and other blogs about personal injury law and workers rights.

 

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