When is it time for an employer to hire a workers’ comp attorney?

Most claims are resolved quickly and without expensive court cases, but you may come across a claim that you either believe is fraudulent or which just “doesn’t seem right.” This week’s blog is from Sean Walsh of Owada Law, with some tips on when it may be time to hire an attorney for your company and how to find the right employer’s attorney for a workers’ comp claim:

The first thing to remember with workers’ compensation claims in Washington state is there are special rules and regulations, including important deadlines, that must be followed. You should carefully read every document you receive from L&I and consult with your Approach Retro Coordinator, or an attorney, if you have questions. If you miss a step, it may impact your ability to protest or appeal a workers’ compensation claim decision.

Second, keep in mind the fact that workers’ compensation claims are not like other lawsuits:

  1. In Workers’ Compensation, fault almost never matters. If the injury took place on the job, the claim is going to be valid.
  2. Industrial Insurance pays for the worker’s benefits when a claim is filed, so any cost to your company comes later, as a potential increase to your premiums.

Never begin a lawsuit casually, in anger, or with other emotions affecting your judgment. A careful cost/benefit analysis should be the first step in considering legal action. Also, the process will be stressful and time consuming, and only you can weigh those factors with the financial costs.

A cost/benefit analysis requires you can estimate the costs of the appeal and the benefits.

Costs:

  • The costs of challenging a workers’ compensation claim are similar to the costs associated with any lawsuit. Even cases that are settled can cost as much as $20,000, while those going through trial can easily cost $45,000 or more.
  • If you believe that the workplace injury was not actually caused by a “sudden and tangible event,” you will also need expert medical testimony. An attorney can help find the right expert witnesses and give you an estimate of those additional costs.

Benefits:

  • In a worst-case scenario, where premiums increase 25% a year as a result of claims costs, your company could end up paying an additional $2,339 for every $1,000 in premium that you’re currently paying. The main potential benefit to your company is the elimination or reduction of the increase in premiums if the lawsuit is successful.
  • Another potential benefit is that the costs associated with that claim do not affect your experience factor while the claim is on appeal. If the appeal lasts for a year, the increase in premiums can be significantly reduced. However, this alone should never be the basis for challenging the validity of a claim as the risks are too great.

It is not sufficient to know you are right.

In litigation, only what you can prove truly matters. There may be many interpretations of events and reasonable experts may disagree regarding the cause of any particular injury. In short, the outcome is never certain. An attorney can help evaluate the sufficiency, value, and admissibility of evidence, and help explain which evidence will not have much weight.

Finding the right attorney

In my opinion, if you have good communication and solid trust, you have the right attorney. If your communication styles are not compatible, or the trust isn’t there, you need a different attorney.

You may want to start with your corporate attorney because he or she already knows your business and may better assist with the cost/benefit process to determine if a case is worth pursuing. However, if you decide to proceed with the case, you should definitely find an attorney who has represented an employer in a workers’ compensation cases before, or at least has had a case before the Board of Industrial Insurance Appeals. L&I and the Board are different from other litigations, with unique rules and procedures, and you will benefit having an experienced attorney.