A Few More Basic Tips for Injured Workers

As I said before, I get a fair number of calls from people who have been hurt on the job and want some legal advice, sometimes leading to an attorney-client relationship. Certain questions come up frequently, and I think it would be apropos to offer more essential Maine workers’ compensation information in this space.

“I hurt myself at work, reported the injury, and got something called a Notice of Controversy. Now what?” The first step is troubleshooting, which sees whether the issue is something that can be resolved quickly and easily—perhaps a paperwork mistake or billing error—and then, often, refers the controverted claim for benefits to mediation.

“What is mediation?” Mediation is usually the first opportunity for the injured employee (often assisted by an attorney) and the employer’s representative (often an insurance adjuster) to get together and state their positions. The employee or his or her lawyer will state the claims and request specific benefits—although cash compensation is commonly requested, payment of medical bills, reinstatement to a job, and other things may be asked for—and the employer’s representative may concede a few issues and offer some of the requested benefits. Usually, however, in my experience, the parties reach no agreement.

“Then what happens?” Many events follow mediation, in normal circumstances. Hearing preparation commences, and an independent medical examination follows. If no settlement is reached, then a hearing on the merits of the case is held and a hearing officer (who in many ways resembles a judge) determines whether and what kind of benefits the injured person is due. The decision may or may not be appealed by either party. Other procedures can happen, too, such as a deposition of a medical examiner or treatment provider, complaints for penalties, or a consent agreement. Each case is unique.

“Why is everything taking so long? I am suffering physically and financially.” Unfortunately, given the number of claims it must process, the workers’ compensation system in Maine can sometimes take years to reach resolution in a particular case. Other times, complicated medical or legal issues cause a case to drag longer than anyone wants.

“I was injured in a car accident while working, and it was the other driver’s fault? Is that still workers’ comp?” The short answer is yes. The situation where someone is hurt at work due to the fault of someone other than the employer or employee is called third-party liability. Matters can become complicated, with two or more insurance companies trying to pin financial responsibility on each other, but a competent lawyer should be able to maximize your recovery from one party and settle any “subrogation” issues with any other.

“My boss says I am an independent contractor. So, I do not have workers’ compensation coverage. Is that correct?” There is no quick answer to this question. A lawyer who is knowledgeable about workers’ compensation or other aspects of employment law really should be consulted if you feel unsure. The test for whether someone is an independent contractor is complex and case-specific. Responsibility for workers’ compensation insurance, unemployment compensation coverage, health insurance, general liability insurance and payroll taxes can all hinge on whether someone works as an independent contractor or an employee.

“I just got hurt at work and found out my employer does not have workers’ compensation coverage? What can I do?” Your options depend on the circumstances, but (assuming you are an employee, not an independent contractor), but this is often a very difficult situation for the injured worker. The employer can face criminal charges and fines, in addition to administrative penalties that are payable to you. And you may be able to file a regular law suit. Those options may not help you, though, if the employer has no money. You really should consult with an attorney, as he or she may know how to reach the employer’s assets to satisfy a judgment or decree.

“I want a lawyer to help me get workers’ comp but have no money. What do I do?” Most lawyers for injured workers do so on a contingent fee basis; I have had just one case where I was paid on an hourly basis, with the rest of my fees contingent on a successful outcome. If your claims have merit and value, you should be able to find someone to represent you for a reasonable portion of the recovery.

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