TOP TEN WAYS TO SCREW UP YOUR WORKERS’ COMP CASE

By Elise Beraru

In seventeen years as an applicant attorney, I have represented hundreds of injured workers. It has never been easy, but in the last two to three years it has become impossibly difficult. The general business climate, the State budget deficit and the financial difficulties brought on by insurance carriers lowering premiums and losing money in the stock market have made employers reluctant to settle even admitted injuries. But so many workers'' compensation cases lose value because the injured workers themselves sabotage their own claims.

With apologies to David Letterman, I present my list of "Top Ten Ways to Screw Up Your Workers'' Compensation Case" and why.

10. DON''T ATTEND MEDICAL APPOINTMENTS: When you don''t go to the doctor your attorney selects for you, or stop going before you are released, your attorney cannot get the medical evidence necessary to prove your case. When you don''t go to the defense doctor or agreed medical examiner, your case takes longer to settle because you can''t go to court until all the medical evidence has been received.

9. DON''T SHOW UP FOR DEPOSITIONS AND HEARINGS: When depositions and hearings have to be rescheduled because you don''t show up, it wastes your attorney''s time, the court''s time and the insurance carrier''s time and money. If you miss hearings, the judge can order your benefits stopped or your case dismissed. If you will be unable to appear at a deposition or hearing, tell your attorney immediately so the event can be rescheduled.

8. CALL YOUR ATTORNEY EVERY DAY: The litigation process can be slow. Attorneys often have court appearances that keep them out of the office. They do their best to get answers and return calls as soon as possible, but when you call every day, often more than once per day, you get a reputation in the office as a troublemaker and you''ll end up on the bottom of the priority list. Unless it is an emergency, try to limit your calls to one per week.

7. ABUSE VOICE MAIL: Keep your phone messages as brief as possible. Be sure to always give your name and full telephone number, including area code, so your attorney can call you from outside the office. Don''t try to tell the entire story of your case in a voice mail message (or take up several voice mail messages). Keep your message very brief.

6. BE VAGUE: Nobody expects you to have a perfect memory, but when you suddenly can''t remember any names, dates, activities and other details, you become unbelievable as a witness. The more specific you can be, the better the record and the more beneficial the result.

5. LIE: Perjury--lying under oath--is a felony, but there are other kinds of lies. Not giving a complete medical history to a doctor. Not telling your attorney about previous injuries. Not telling your attorney that you have other workers'' compensation cases with another attorney. Claiming not to remember details when the defense attorney asks that you remembered perfectly when your own attorney asked you. All of these lies can hurt your credibility as a witness and harm your case. They can sometimes leave you open to being investigated for insurance fraud, another felony.

4. THREATEN YOUR ATTORNEY: You hired your attorney to represent you and use his/her best legal judgment. Threatening your attorney that you''ll file a complaint with the State Bar or with threats of violence against the attorney or any staff member is the easiest way to find yourself without an attorney. If your attorney is performing services in an unethical way you should contact the State Bar, but telling your attorney, "File this petition" or "take this person''s deposition or I''ll report you to the State Bar," will generally cause the attorney to petition the WCAB to be relieved as your attorney.

3. COMPARE YOUR CASE TO "SOMEBODY ELSE YOU KNOW WHO GOT MORE MONEY": Every case is evaluated and resolved based on the type of injury, the extent of permanent disability, the age, occupation and average weekly wage of the individual injured worker, as well as the potential value of future medical care. Also, people do exaggerate the amount of their settlements to try to impress you. So there are a number of reasons why someone else you know claims to have received more money "for the exact same injury."

2. REFUSE TO COMPROMISE: Litigation requires negotiation and compromise. You may not get every penny you think your case is worth, but your employer and the insurance carrier will always think they are paying more than you deserve. It can take several appearances to get to trial and a multiple day trial can take months to complete. Consider how many days of work you may lose, plus the possibility of receiving less money after a trial than with a negotiated settlement. The Workers'' Compensation Appeals Board is organized to prefer settlements over trials. Additionally, insisting that "only the judge can tell me what my case is worth" is insulting to your attorney, who you have hired to use his or her legal expertise to determine what your case is worth and negotiate a settlement.

   And the Number One way to screw up your workers'' compensation case:

1. DEMANDING "JUSTICE": An old legal saying is "there is no justice, only money." Workers'' compensation cannot change the way your employer manages its business or trains its supervisors. It cannot get your abusive supervisor or co-worker reprimanded or fired. It cannot make the workplace safer or the workload easier. The workers'' compensation system cannot guarantee to restore your physical condition to what it was before your injury or get you a new occupation that pays as well as your previous job. Since the law cannot make an injured person whole, the only way to compensate the injury is with money. Insisting on going to trial when a reasonable settlement has been offered and recommended because you want "justice" will not necessarily increase your award, and may prejudice the judge against you.