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Matt Lewis
Rogers, Booker & Lewis, P.C.
901 Waterfall Way, Suite 105
Richardson, TX 75080
(972) 644-1111 Telephone
Email Matt Lewis: matt.lewis@dallasworkcomp.com
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Saturday, March 22, 2008 Discovery of Medical RecordsOnce a benefit review conference occurs, all parties have fifteen days to
exchange all of the evidence that they may use at the upcoming contested case hearing. Rule 142.13 sets forth the requirements
for this exchange. One of the requirements is that each party must exchange all medical records in its possession.
Sometimes, one party only exchanges the medical records that it believes to be important for the particular
issue in dispute. Maybe that party doesn't want to copy a large volume of records, and they think they can just
send over the ones that they think matter for the upcoming hearing. But who gives that party the right to decide what
records are important and which ones are not? What if, after reviewing all of the medical records, the other party would
have used the records that were not exchanged?
11:28 am cdt
CommentsI have run into this problem alot lately. I got the impression that the insurance carriers were not exchanging all of the medical records, so I started sending an interrogatory that asks for a list of all medical records in the carrier's possession that were not exchanged, or in the alternative that they send me a copy of all medical records not exchanged. I started getting some interesting responses. I was completely shocked that in most of these cases, the carrier ended up sending me some additional medical records. Most of the time, I ended up using these records in the case. So, these records that were withheld from me were important to my case, in my estimation. Interrogatories are questions that one party can ask the other in writing. They are useful for establishing facts and theories to reduce the number of surprises that may come up in the case, and to allow a proper investigation of the issues in dispute. So, I have begun using them to establish what the entire medical record actually is. In the latest case where I have used this tactic, the insurance carrier had only exchanged four medical reports - but the patient had been treating actively for seven years. It didn't take a rocket scientist to assume that there were more medical records available than those four reports. So I sent the interrogatories and the carrier objected to them. Then I filed a motion to compel, which is a request that the judge hearing the case order the insurance company to follow the rules. Once the judge granted this motion, the insurance company called and said they were sending over two full boxes of medical records. The issue that we are litigating is extent of injury, so the judge has to determine exactly what diagnoses the insurance carrier has to cover. It seems to me that these two boxes of medical records, full of medical exams and diagnoses, will be pretty important to the case. When your case is proceeding to a contested case hearing, it is important to make sure that you make the insurance carrier fully comply with the law and give you all of the documentation that is required in the Rules. If you are concerned that an insurance carrier is withholding information from you, you must act swiftly to oppose them. Why else would they withhold information except that it hurts their case against you and helps your case against them. Friday, March 14, 2008 Termination And Disability/TIBsI handled a case yesterday for a gentleman who returned to work on light
duty earning less than his pre-injury wages and was terminated. The insurance carrier did not want to pay him temporary
income benefits (TIBs) arguing that if he had not been terminated for misconduct, he would have been working and earning wages.
Therefore, it was not the work injury that caused his inability to earn wages but his misconduct at work that
caused the reduced earnings.
12:30 pm cdt
CommentsMany employers terminate employees who file a workers' comp claim. It is often done after the employee returns to work. They think it helps their case against the employee, or it is some kind of retaliation against the employee for filing a claim. When an injured worker is terminated while working light duty because of a work-related injury, then the insurance company owes monetary benefits known as TIBs. Sometimes the work comp insurance carrier argues that termination ends disability or the claimant's rights to TIBs, but the vast majority of the time the insurance carrier will lose that argument. If a work injury limits an employee's ability to work and that employee is not at work for any reason at all, then they should probably be receiving workers' compensation benefits. Any injured worker who has work restrictions that is not receiving temporary income benefits, or some other work comp monetary benefit, should consult an attorney immediately. In a case with similar facts as those described above, where the light duty job pays less than the pre-injury job and the carrier argues that the termination ends the right to temporary income benefits, then the employee should consider whether or not it is feasible to file a lawsuit against that insurance company for bad faith. Bad faith is when an insurance company fails to accept liability when that liability is reasonably clear. In this case, the fact that the employee was earning less on light duty than they were before they got hurt means that no matter what the judge thinks about the termination, the carrier at least owes the employee the difference between his pre-injury wages and the wages he was earning on light duty. There is no way for an insurance carrier to get around that. The fact that the carrier refused to pay benefits at all in that situation is a failure to accept liability that is reasonably clear. In such a case, if there are damages resulting from the carrier's failure to pay, like a car being re-possesed or an eviction, then the employee should consult with an attorney to discuss filing suit. Friday, March 7, 2008 RecoupmentRecoupment is when an insurance carrier tries to get its money back from
an injured worker. Most of the time the carrier files a form saying it overpaid benefits to the claimant and it is going
to reduce future benefit payments by a certain percentage to get their money back. Sometimes, the carrier asks the claimant
to write them a check to pay back the money it claims was overpaid. Don't accept the carrier's demands at face
value.
11:35 am cst
CommentsA workers' compensation insurance company is only able to "recoup" overpaid benefits in rare circumstances. An injured worker will never have to write a check to a carrier to pay back any money unless the claimant obtained that money fraudulently. If the carrier just screws up and pays too much in benefits, then the claimant gets to keep the money and it will not be paid back. The only time most claimants can ever expect to have their benefits reduced to let the carrier "recoup" its overpayment is when a mistake was made in calculating the average weekly wage, which is used to compute how much a claimant receives in weekly compensation. This is rarely the reason why an insurance carrier tries to take the money out of the claimant's future benefit checks. When the carrier tries to "recoup" money from an injured worker, it is basically trying to steal the claimnat's money under the guise of fairness. The insurance carrier might think it is unfair that it overpaid benefits for some reason and can't get its money back, but the law does not allow it to get its money back. The injured worker gets to keep it all. If an insurance carrier tries to reduce your weekly compensation checks for any reason at all, you should get legal counsel immediately. Most of the time, the carrier is illegally taking that money from injured workers and hoping they just don't know any better. Always remember: Insurance companies make profits by taking in more money in premiums than they pay out in claims. When they take money away from injured workers with legitimate claims, that just makes them more profits. Don't let them take money out of your pocket to put in their own. Tuesday, March 4, 2008 Reporting An InjuryMany employees don't know that if they get hurt at work, they only
have 30 days to report the injury to their employer. In many instances, the injury seems insignificant and they continue
to work and try to tough it out until it goes away. They may take Tylenol or Advil or something to help with any lingering
pain. If this goes on for more than 30 days without reporting the injury to a supervisor, then the injured worker could
lose the right to workers' compensation benefits. |
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