The top 3 Questions

Q1) I was injured 6 months ago and have been handling my own case.  The insurance company has held up my checks, underpaid me, not paid the medical bills, and—in general—given me such a bad time that I may have to file bankruptcy.  What can I do to collect?  Get an attorney. 

Normally, the attorney gets 20% of a Workers Compensation claim.  States outside Kentucky allow as much as 25% and, if very special circumstances exist (where it was very hard to prove a case), the Workers Compensation board may approve a fee as high as 33%.  There is a one year statute of limitations on filing a Workers Compensation claim.  In some cases, this may stretch out to 2 years especially for diseases that don’t happen until later.  Normally, a person represented by an attorney will get almost twice what a person would get without an attorney; however, if you have been playing attorney and handling your own case for the last 5 or 6 months, you probably have damaged your case and you will probably get a lot less.  Normally, if an attorney is handling your case you will get paid faster, and more, than if you didn't use an attorney.  These statistics come from a Mississippi Workers Compensation study that proved that, in Mississippi, in the 1980s, where people doubled their awards (on the average) if they were represented by attorneys.

Think for a moment:  If you were an insurance company, would you pay anything at all without the threat of legal action?  An insurance adjuster once said to me, “We never offer more than 10 cents on the dollar of what a claim is worth to persons that are unrepresented by an attorney.  They have already proven to us that they lack the intelligence to use an attorney and, if they continue to wait, the statute of limitations runs out and we pay them nothing.”  People that handle their own cases get little, and get paid late.  On top of that, they do all the work themselves.  They simply can’t expect to get as much as a trained attorney would.  Insurance companies profit only by paying out less than they take in.  They naturally try to reduce their costs as much as possible.

In 1996, there was a major Democratic revision to the Workers Compensation Statutes in Kentucky that sharply reduced attorney fees and benefits.  The insurance companies and Paul Patton made it so that it was no longer profitable for attorneys to do such cases.  These changes were supported by coal mine operators that supported a reduction in black lung benefits.  A Kentucky case in the early 1990s also ruled that you cannot sue an insurance company in the State of Kentucky for bad faith in not paying a Workers Compensation claim.  You are now limited to suing an insurance company for the benefits that they didn't pay. Because of this decision, many insurance companies are not afraid of paying claims short and, in some cases, not paying at all.  Why should any insurance company be afraid not to pay with these laws to protect them?  Often, the only choice is to use an attorney.

Q2)  I want to handle my own case.  How do I do it?  You have the right to handle your own case.  You can do your own dental work, too, but it isn't a good idea.  You may be an expert electrician or mechanic or even tax attorney.  But, just because a customer is an expert mechanic doesn't mean he knows how to fix his own transmission.  You shouldn't attempt to do your own legal work.  Processing a Workers Compensation claim is easy.  You only need to get the forms from the Workers Compensation board in Frankfort and notify your employer and his insurance carrier that you are making a claim.  Again, filing the work and processing the claim is easy:  Collecting the full amount you deserve  and proving how disabled you are and filing items on time when you don’t know the process may be very difficult.

Q3:  Can I still recover under Workers Compensation if I have a Personal Injury case?

In 1985 the Mississippi Workers Comp board did a study.   That study held that if a person in Mississippi was represented by an attorney they obtained about twice what the average person got without an attorney.  If you file for Workers Compensation you may get funds faster than through a lawsuit.  However workers compensation has been dramatically reduced in it's benefits in Kentucky and the process now takes much longer because insurance companies are allowed to delay paying benefits and can not be sued for non payment.  Attorneys fees have been reduced so much that it is difficult to find  attorneys that will take workers compensation cases.   If you do collect under workers compensation you may have to repay some of the benefits you get under workers compensation from your personal injury award.   However personal injury awards are often much more than what is awarded under workman's compensation and take much longer to get.  Workers comp is paid immediately to you and you can live on that until the personal injury award comes in.  Also if you have to file bankruptcy workers comp is exempt from the bankruptcy court and creditors taking it.  Personal Injury claims, in addition to a workers compensation claim, can be filed against other parties (known as a Third Parties) seeking damages in addition to an award in the workers' compensation court. You should consult with an attorney as soon as possible after the accident to determine whether your case would entitle you to bring a Third Party action. If you are successful in your Third Party action, you are compensated for pain and suffering.

 1     Why do I need an attorney for my personal injury or property claim?  Insurance companies pay adjusters and defense attorneys to delay deny or limit your compensation.   Often it takes litigation trials and appeals because insurance companies rarely want to settle fairly.   Instead they know that they can deny a person payment and unless a person has an attorney there is little or nothing the you can do about it.  There is a time value to money.  They have the advantage.  They have your money and they don't have to give it back to you unless you are willing to settle for pennies on the dollar so that you can have your compensation now.  

2)  What should I expect at a law office?  The goal of a law office should be to provide the client with a fair settlement as soon as possible, but every case accepted is approached as if it will eventually go to trial.  The office staff may be divided in larger firms into pre-litigation and litigation sections, to manage the extensive preparation that goes into cases worth over $100,000 dollars.  The pre-litigation teams work with the client in arranging for medical care and personal needs.  Most cases settle before litigation.  If the case cannot be successfully settled during the pre-litigation stage, the litigation team files the suit, conducts discovery, and prepares the case for the trial.  The trial attorney should lead the litigation team through every phase of a case whether it be negotiation, discovery, mediation, arbitration, or trial.

3)  How much will it cost?  Most firms charge 40% of what is recovered in personal injury cases. However, if a person attempts to represent himself he will often get nothing. He may damage his own case so much that, even if he does have an attorney later, he loses what he could have gotten.  If a case goes to trial, many firms charge 50% of what they recover.  Workers Compensation cases are less involved, faster, and are limited to 20% of a recovery. You rarely pay out anything up front to have a firm represent you, other than the court costs. In the long run, the average person gets a larger return by using an attorney.  The fees for our services are based on a percentage of what we recover and are determined, when the case is concluded, by the type of case and other factors.  No fees are charged unless we recover.  Court costs, litigation expenses, and medical bills are normally paid from the client’s share of the recovery.  If there is no recovery, the client will not be responsible for court costs and litigation expenses unless he withdrew the litigation.

4)  What should I do first if I am injured at work?  Immediately report the accident to your employer.  Seek medical treatment from an employer-authorized doctor.  You should also start to document everything about the event and seek the advice of a qualified attorney.

5)  Why can't I see my own doctor in a Workers Comp case?  The law says that employers must pay for all medical care related to the accident, so they control which doctors you may see.  If you decide to go to your own doctor you may be responsible for the bill.  In limited circumstances, an employer’s Workers Compensation insurance company will authorize a doctor of your choice.  You can always use your own health insurance for a second opinion or care.  You can request a different doctor.  The earlier you make the request the more likely the Workers Compensation insurance carrier will authorize a doctor of your choice.  You should also realize that the doctor that is treating you may also be collecting evidence and may testify against you at your hearing, trying to prove that you were not as seriously injured as you claim.  Remember, the insurance doctor is not working for you.

6)  How much is my case worth?  The worth of your case is based on liability and your damages.  Even if the other side is at fault, you can’t collect a million dollars unless you were seriously injured.  Insurance companies consider the same elements of liability and damages in deciding how much to offer in settlement. Before any settlement is reached, there are generally a series of negotiations involving offers and counter-offers between your lawyer and the insurance company.  Insurance companies rarely agree to pay the amount of money which you initially demand to settle your case unless your case is worth the insurance company's policy limits.  Every insurance company handles their claims differently. Some companies settle cases before a formal lawsuit is initiated in order to save the expense of hiring an attorney to defend them. Other insurance companies will not make any serious attempt to settle your case until you are “on the courthouse steps” and ready to go to trial.

7)  How will I be paid while I am out of work?  If you miss a certain amount of time at work, you are entitled to Temporary Disability Benefits.  These are paid biweekly, in Kentucky, until you return to work.  You are paid benefits based on how seriously you were injured and how it affects your future loss of earnings.  You are also paid based on your gross weekly pay at the time of the injury.

8)  If the Workers Compensation Insurance Company denies my claim, can I apply for unemployment?  No.  If the Workers Compensation Insurance Company denies your claim for Temporary Disability Benefits, you cannot apply for unemployment because you are not actively seeking work and are unable to work.

9)  How soon after the accident do I have to file a Workers Compensation claim? You should file for benefits as soon as possible.  While you wait, the evidence and the witnesses are becoming harder to obtain in court.  You have two years from the date of the accident.  If you wish to file a claim, you should consult with an attorney as soon as possible after your accident and you must have reported the injury to your employer.

10)  Can I receive a monetary settlement if I am at work?  Yes, after you receive medical treatment and return to work, you are eligible to receive a settlement for your injury.  This is often a bulk settlement award and you can get it even if you never missed work.

11)  Can I collect Workers Compensation benefits if the accident was my fault?  Workers Compensation does not depend on you not being at fault.  You receive Workers Compensation whether or not it was your fault.  As long as you were involved in performing your work when you were injured, it doesn't matter if the accident was caused by you, a co-worker, or your employer.

12)  Do I have to pay an Attorney up front to represent me?  No.  You don't pay unless you collect.  A Workers Compensation attorney's fee is based upon work done on behalf of the injured worker and is set by a Workers' Compensation Judge.  The attorney fee, in Kentucky, is no greater than 20% of the amount recovered on behalf of the injured worker.  However in some rare cases it can be increased to 33% if proving the case is very hard.  The amounts are small and the percentages are small so few attorneys take these cases.

13)  What if I want a second opinion and the insurance company wants to go with their own doctor’s opinion?  You are allowed a second opinion, but you should use an attorney for your case.  The reason they send you to their doctor is to avoid paying you.  You have the right to your own doctor and his opinion.

If You or a Loved One Were Injured at Work Contact Nick C. Thompson for a Free Consultation

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