The Attorney’s Role in Workers Compensation

Episode Notes

Transcript

Workers Comp Matters

The Attorney’s Role in Workers Compensation

08/28/2018

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Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers comp matters.

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Alan S. Pierce: Welcome again to another episode of Legal Talk Network and Workers Comp Matters. This is your host Alan Pierce, an attorney with Pierce, Pierce & Napolitano in Salem, Massachusetts. And I am very happy to bring you another edition of Workers Comp Matters.

My guest this episode is attorney Robert E. Wisniewski. Bob Wisniewski is an attorney in the great State of Arizona. He has been practicing workers’ compensation law for 40 years, litigating thousands of work-related cases before the Arizona Industrial Commission.

He is AV rated. He is actively involved in all sorts of professional organizations, including the Arizona Trial Lawyers Association. He is a board member of Kids’ Chance of Arizona, a scholarship program for injured workers’ children. And he is a founder and primary donor of an educational scholarship to Phoenix College for minority students.

He is a graduate of the University of Toledo College of Law. He has a Master’s in Public Administration. He was on the Air Command and Staff College for the United States Air Force and he spent 18 years after four years of active service as a JAG Officer.

So Bob, I want to welcome you to Workers Comp Matters.

Robert E. Wisniewski: Thank you very much Alan. I am very happy to be here today.

Alan S. Pierce: And before we get into our topic, we want to thank our sponsor Case Pacer, practice management software dedicated to the busy trial attorney. To learn more, go to casepacer.com.

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Bob, first of all, thank you for agreeing to be a guest on Workers Comp Matters and thank you also for an interesting article that was published in a publication called Workers’ First Watch. This is a quarterly magazine published by the Workers’ Injury Law & Advocacy Group, otherwise known as WILG, and you wrote an interesting topic in the most recent edition focusing on tips on representing injured workers.

And as you are a practitioner representing injured workers as opposed to insurers or employers, you have outlined in relatively concise ways certain things that all of us, even those of us who have practiced as long as you have, that we really need to be aware of in representing injured workers who come to us seeking legal representation.

So as we get into that, you and I have discussed before starting the program of why do people come to us in the first place. There are certain obvious reasons; their claim is denied or their benefits are terminated, but what have you found are the most common reasons why an injured worker would seek out representation in his or her workers’ comp claim?

Robert E. Wisniewski: Certainly. I think every worker that faces a workers’ compensation claim for the first time is confounded by the paperwork, is hurt, scared, broke and totally confused. So they talk to people or they go on the Internet and everybody says well, you need a lawyer. So I think that’s one area that it’s the expectation of the worker that the other side, the insurance company will have representation, and that if I do not have representation, I am probably going to be certainly not on a level playing field with the insurance company or the self-insured. So that seems to be a primary concern.

I think people then talk to their doctors, to their family, to other workers, fellow workers that may have had an injury and they say you really need a lawyer under the system.

And it was never meant to be that way, workers’ comp was meant to be a simpler administrative proceeding, but unfortunately, it has become somewhat complex in each state.

Alan S. Pierce: So somebody calls, makes an appointment and comes in, generally speaking, to those of us who might not do high volume workers’ comp cases or even those of us who do, what are some of the things that have stuck out to you in your practice that we should be aware of, especially our initial meeting with a potential client?

(00:04:52)

Robert E. Wisniewski: What we do typically is we may do a screening of the individual when they call in. We will try to get some basic information about the claim, whether they have lost time from work, whether they have had surgery, whether they have indeed even filed a claim. Many people call us simply to find out gee, what to do, and I don’t know what my next step is. The insurance companies perhaps are too busy, they don’t educate them. The trade unions may not educate them. They may just say, call this lawyer, he is worker friendly. So what we typically do is try to gather some information in the initial interview.

And then we will ask the injured worker to perhaps secure some information, their medical records, perhaps if they have filed a claim, if their claims are readily available at our Industrial Commission to get us the paperwork, and then maybe if they can get information from the insurance carrier, we will ask them to either bring what they can get or bring what they have.

If that’s the document that has them calling a lawyer, they don’t understand what it is, we say bring everything down and we can go through that and try to sort it out and give them at least some information and some direction and perhaps tell them whether they need representation at that time.

And it also is a great opportunity for us to perhaps control and maybe focus their expectations. Every worker has expectations about what they might receive in workers’ compensation. They may gather those expectations from people that have had personal injury claims, and we will say no, you don’t get paid for pain and suffering in workers’ comp.

So we have to kind of channel the expectations to start out with and then determine whether the person is a good historian. Gee, will they do well if they go to court, did they forget all the papers and leave them home, and that tells us whether they perhaps will be a responsible client that will follow our advice to do what we tell them to do to have a successful conclusion to their case. So that’s usually the first step.

Alan S. Pierce: And do you utilize a new client questionnaire?

Robert E. Wisniewski: We do.

Alan S. Pierce: And I think you will probably agree with me, you also need a firm history of any prior work injuries or non-work injuries or health issues?

Robert E. Wisniewski: Yes, that’s always important, to find out whether they have ever, ever had a prior injury, and most folks will say oh, I never had one. And we say are you sure you never hurt that knee before, because never means not ever, it doesn’t mean no, I can’t remember because the other side will find out if you have had another injury and perhaps use that against you to impeach your testimony.

So we are trying to keep things simple initially, but we are also trying to find out the thought process of the client and what they are looking for and whether they are a good historian.

Alan S. Pierce: Yeah. In fact, in your article you make an interesting analogy to that initial meeting with a potential client as like you are both on a first date and that’s an opportunity for your client to size you and your law firm up and vice versa and make sure, as in a good date, there’s a good fit for something that is going to be a relationship.

Robert E. Wisniewski: Right. And we are happy to give advice and we will say to the person whether you hire us or somebody else, they are probably going to ask you the same set of questions. You may be a little disappointed with us because we are asking you to take perhaps a little bit of an active role in answering and not just say oh, my lawyer will handle everything.

As a colleague of mine once pointed out years ago, and he is long retired, that it never gets any better than the first interview. Whatever facts you get then, you may find out they are worsening later, because the person says oh, I reported it to my employer and then of course the employer will come in and say no, he didn’t tell us that he got hurt.

And each state has a different requirement. In our state, here in Arizona, there’s a requirement that you must forthwith report the injury verbally or in writing to a supervisor as part of the claim. And most people think well, I got hurt at work and the mysterious they know I got hurt. Well, we say how did they know, did you tell them? Oh, well, they know, and then you kind of go around the merry-go-round and say wait a minute, how did they know, did you tell them, did they see it, what were the senses, did they see you get hurt, did they hear you fall?

So those things are often things we have to flesh out in the first interview. And sometimes it’s difficult, because the folks are just simple working people and not very good at telling their story, and I don’t mean their story that they are making up, I mean they are just not real good at explaining it and we have to kind of fish that out from them.

(00:09:59)

Alan S. Pierce: Which, I think is a nice lead-in to perhaps the next thing that takes place in this early relationship, one is for the client to feel comfortable enough with you or me to retain our services and for us to accept this particular client into our practice.

I guess the next step is managing client expectations and also managing client contact. I know the first tip rule pointer that I was given when I first started out is always return the phone calls. I wish I could say I meet that challenge 100% of the time, I don’t, but I know that if a client calls the office, they expect a call back.

So how do we deal with clients, perhaps unreasonable or under-reasonable expectations, and need for contact?

Robert E. Wisniewski: Well, that’s a good question. And I think as I visit with the individual, I will tell them, your case is very important to me and I will do your case personally, but I can’t do every case at every moment. So when you are calling me, I may be at a hearing for another injured worker, be patient, we will get back with you. We have trained staff of customer service representatives or paralegals that are — they don’t give legal advice, but they will answer the routine questions that most folks will have.

And then they will give me a phone message, and I, like you, will make an effort to call back by the end of that day or they will at least be given an expectation that well, Bob’s in court all day today but he will call you back tomorrow, it looks like the morning is clear, you are most likely going to get a call back in the morning.

And we know our clients are anxious and maybe a little histrionic at times and they may call several times, and then I am often one that will call them later in the evening and say well, it must have been that difficult for you all day, but I am calling you back now, and often they don’t want to talk to you at night because they are watching TV.

I said well, I thought it was an emergency, you called five times. So we will joke about that and then they will recognize that they are getting called back and they are getting handled. And it’s a matter of maybe client selection and educating them initially that the process does take some time. This will happen next and then there will be a meeting or a deposition or something like that. So during the deposition time we try to answer questions.

Many times when I meet with them initially, I will give them a — in a little folio, we give them a sheet of paper and say write down all your questions, so that maybe — and you know you are going to see me in two weeks, maybe that’s the time we will go over every question that you think of rather than you have a question, call the office two days later, another question and you call the office, we will try to clump them together. And we will educate them that it’s an efficient way to manage your time and our time.

Alan S. Pierce: I would say in the last five years certainly, more so maybe in the last two or three years, almost all my clients now have email. 10 years ago I would say it was probably half of them or less; now with smartphones and other devices; in fact, nobody has a landline anymore, but everybody has got the smartphone, everybody has got the text or email. Do you find you are communicating more with your clients via email or text vis-à-vis the phone and/or which do you prefer?

I know sometimes I return calls or get calls in the car or away from my desk and I it’s hard to record the substance of that or remember to record. What are your thoughts on ongoing client communication?

Robert E. Wisniewski: Well, that’s an excellent observation about the new, I guess millennium, post-millennium smartphones. It can be difficult and I don’t really type well.

Alan S. Pierce: Me neither.

Robert E. Wisniewski: We all have mechanisms. So I will try, and I did talk to another lawyer, a friend of mine, who said that 90% of his communication with his clients is by text.

In my state, our state bar is a little bit behind the times on that. They require you to keep a record of every text, which I have no idea how to do that, so that would be somewhat cumbersome. But we have known that it’s better, we will leave a message or we will send an email and we don’t get an answer, but if we text someone and say call us, we get an answer right away. So we are trying to use all those different modalities.

The emails can be perhaps beleaguering and I think we live in the world of, I call it the Starbucks mentality, when you can phone in your coffee order and just come in and get it. I think most of our clients now believe that oh well, I can just email my lawyer and he is just sitting there waiting to answer my email that very second.

So we have to early on say well, we welcome your email, but again, if we are occupied with another client at that time, we can’t respond to your email at that time, but someone will, either I will or one of the legal assistants, but we will get back to it.

(00:15:00)

And again, that’s a good way to keep a record of what you’ve advised the client, and sometimes, we’ll remind the client that this is the fourth or fifth time we’ve told you the same thing, maybe you need to come in the office so that we can use other educational aids to explain that topic, because obviously they are not understanding you.

Alan S. Pierce: All right, this is an appropriate time to take a break. We will be back in a couple of minutes with our guest Bob Wisniewski, talking about tips on representing injured workers.

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Alan S. Pierce: Welcome back to Workers’ Comp Matters. We’re talking with Bob Wisniewski, a seasoned, I guess I’ll use the word “seasoned” practitioner representing injured workers in the great State of Arizona. We’ve been talking about the initial interview and the beginning of representation of injured workers.

Bob, at what point do you discuss with your clients and how do you broach the subject about things like their Facebook or other social media presence and how that might impact their workers’ comp claim.

Bob Wisniewski: Again that’s another new topic that has come into the forefront in representing injured workers in the last decade or so. We’re very clear at the stage of signing a client for representation that we will advise them that they must stay off social media, and that it really is somewhat of a compulsion for a lot of people.

I think I heard a representative of Google once that say people touch their phones like 180 times a day, even if they don’t do anything to transact on the phone. So we know that’s a compulsion. And we explain to them that the insurance company will use any information to detract from your claim, and you may think it’s a simple posting on Facebook, but if they know you’ve been on vacation or you went to the beach, and of course, there will be photographs of you playing touch football on the beach, and you’re claiming you have a bad knee, they are going to have their claim dramatically trashed.

At that point, and to the extent that they’re providing us with additional information that says the opposite and we believe that they’re not telling us the truth, we may terminate the representation at that time.

So, we tell them it’s a very, very serious matter that they need to stay off of all the Twitter and the email accounts, simply because it is subject to being misconstrued about a vacation or something of that nature. Simply, we say, well, whatever you’re doing make sure it’s consistent with what your doctor says, and make sure it’s the truth, obviously.

And if they’re going to say something that’s subject to being misconstrued, we just prefer they stay out of it. We stay off the Facebook and we stay off of the social media and we actually have them indicate that and sign off on that.

Now, I know some law firms that are involved with very significant personal injury claims have literally a paralegal that once a month will go on to their clients’ Facebook account and their social media accounts to see if they are actually following that advice and they tell me that many times the clients are not.

So, it is a difficult — it’s a challenge and sometimes, we have to have perhaps a family member or a spouse present and have them understand that you just can’t do that.

Alan S. Pierce: Yeah, we could probably fill a show or two with just anecdotes from our experiences of cases that have gone sour because of something simply posted on Facebook or in some of the fashion, which sort of gets me off into the next sort of sub area of that, and that is, informing the client of the fact that insurers will routinely do what’s called activity checks and/or surveillance.

(00:20:00)

Do you bring that up at every meeting or only when you are in a litigation or a dispute process or when a client tells you he thinks somebody has been investigating or following him?

Bob Wisniewski: Well, I think we do it on each one of those occasions. Initially, I will suggest that they will have activity checks, there may be surveillance if we are acquainted with perhaps the carrier or the defense firm. I may say that firm routinely will use surveillance. So, you can expect it or that lawyer will use it or that carrier will use it.

I certainly will advise and that if they see anything suspicious of a panel truck in front of their house repeatedly that that probably means they’re going to be surveilled and there’s times when we’ll hear questions in a deposition that would lead me to believe that maybe they have already have been surveilled, and we do ask information from the other side of whether they’ve done surveillance.

In our state, we have to disclose surveillance particularly long period of time before the hearing that they have to disclose the surveillance if they intend to use it. I will remind the client about that periodically; particularly if we’re in litigation, I will —

Alan S. Pierce: Yeah, I think you’ll probably agree with me that how we educate our clients about that is important because we don’t want to let them believe that they are going to be under 24×7 watch. The insurance companies do not spend that kind of money except perhaps in the most rare case when they have some reason.

But, basically the insurance companies when they have routine activity checks or surveillance, they’re just hoping to get lucky, it’s a hit or miss thing, then obviously the Holy Grail is to find a client committing fraud or working when they’re collecting or claiming total, that happens very, very infrequently, I’m happy to say.

But their secondary goal is to just see if they are, as you said, performing some physical activities that are inconsistent with what they’re telling the doctors. And I also tell my clients that if they do the surveillance well, you won’t know they’re doing it and a negative investigative report can be as valuable to their claim as a one in which they’re found to be doing something, because when an insurance company seeks authority to resolve a case, the first thing a supervisor or a claims examiner says, have you done a surveillance?

And we have and it’s been negative that just helps to verify the claim, so —

Bob Wisniewski: That’s an excellent point.

Alan S. Pierce: I have to balance the education of these clients because then some of them get back to me. Are they putting listening device, are they tapping my phones, are they putting GPS on my car. I answered no to all of those, but I tell them they can’t live their lives in fear. They have to just go right there.

Bob Wisniewski: Right. You don’t want to become paranoid, you wanted to be just sensitive to it and you’re correct, I think sometimes a surveillance will show that that person is disabled or has problems and can’t function and that tips the scales towards the worker when the insurance company is making its next decision to say, yeah, well, we saw that firefighter and he — yeah he can’t walk right.

Alan S. Pierce: He is limping.

Bob Wisniewski: And that helps our case, yeah. So, it’s a balance.

Alan S. Pierce: Yeah, I tell my clients, I don’t know if this practice is widespread in Arizona, but a lot of times, surveillance is only good if they can find your client actually doing something. So, a lot of times I have found insurance companies will set up an Independent Medical Exam, a so-called IME with one of their doctors and they’ll have their private investigator waiting outside the doctor’s office and they will follow the client from wherever he or she goes from that exam.

Somebody who might limp into the doctor’s office but walks with a bounce in her step at the shopping mall, ten minutes later, sometimes something is simple and harmless as that in appearance. It can be devastating.

Bob Wisniewski: Yes, those are areas that we do tell them when it’s time to either appear at a deposition or appear for a doctor’s examination. Those are perhaps guaranteed times that you will be at a certain place where you can be surveilled or surveilled from your home to that certain place or back.

Alan S. Pierce: Exactly.

Bob Wisniewski: Those are cost-effective times for the insurance company. They’re just not going to have somebody kind of fish the neighborhood for a while. Yes, so we do kind of at least let them be sensitive to those appointments that they’ll be surveilled.

Alan S. Pierce: So, on a final note as we’re coming to the end, let’s talk about something that may be just as important as getting the new client and that is the client that we might turn down, and not take. I can think of most of the cases that might keep me up at night are the cases that I in retrospect just never should have taken and the warning signs were there.

So from your 40-year experience, what are some of the warning signs either at the initial interview or shortly thereafter that might say, you know, I’m not your guy.

Bob Wisniewski: Yes, it’s kind of like that first date or the marriage. It’s better to get out of it before you get into it, I suppose.

(00:24:57)

Yeah I’m concerned about clients that have been to several other lawyers beforehand and they have had disagreements or disputes with the other lawyers. Clients who have very unrealistic expectations about how to handle the claim, the value of the claim, how it processes, and gee, they know better because they’ve had a claim in another state or they know all about the Internet and they know all about their doctor, and everybody is a fraud and people that kind of spin the conspiracy theories and know then they go off into the ozone with well this and that this and that, and I go, well, you know, I’m not the right guy for you.

So, those are the ones that are rare, but they’re people that come in with the entire banker’s box, cardboard box of their file, they’ve already been through five hearings they’ve lost and their whole life.

And admittedly, workers’ comp is important because it does involve the lives and livelihood of injured workers. But some folks their whole life is their claim, everything is derogatory against the insurance company, the representative, the doctor, the judge, those are clients that we just will pass on initially, because it’s just not going to work out, and no one will sleep well.

Alan S. Pierce: And I agree. I mean, we would like to give all our clients the benefit of the doubt, but look at these accidents and cases don’t occur in a vacuum, and it’s an interruption in somebody’s life and somebody’s — not everybody’s life is perfect, in fact, nobody’s life is perfect. So, when you add injury, financial, security, pain and being in a legal system that is new and foreign, you have all the ingredients of us having to play the role of both advocate, lawyer, counselor sometimes social worker and sometimes we need the ability to know how to deal with these folks as a family unit.

Robert E. Wisniewski: Yeah, sometimes the client would like you to be the minister, the rabbi, the priest, the confidant, as well as the lawyer and those are hard roles to play. So, some folks did come in that are very, very angry over the system or the wrongs or whatever happened to them. If we can’t channel their expectations early on in a couple of interviews I may say, look, I’m just not the person that wants to represent you because we both have a choice. You can say, you don’t like my personality because I’ll say I’ll need you to do this, this and this or stay after social media and you will do that, well, then we all want to just not continue to the second date so to speak, and move on.

Alan S. Pierce: Yeah. Another thing I’ve noticed and I’m assuming and I think I’m correct that the Workers’ Comp Bar in Arizona is probably small enough and everybody knows each other fairly well, defense and claimant attorneys, and I frequently have to catch myself. When I’m in front of my client maybe in the hallway or outside the courtroom with a defense attorney defending my client’s claim and we talk about our families or vacations and we act friendly, we are usually friendly colleagues. So, this can have a very negative effect. Our clients sometimes can think, hey, whose side is my lawyer on?

Robert E. Wisniewski: Right or my lawyer is going to sail me down the river here because he has a cordial relationship, and we explain that initially that, look, this is a small — gosh, I don’t think in the whole state we have between people that do both sides and judges and there’s 150 to 200 tops in the entire state, probably more closer to a hundred, and I will say look, I’m going to see that lawyer four times this week and we’re going to appear, or we know each other, we’re cordial. I’ll say, he was on vacation last week and how was your vacation, that doesn’t mean that I’m not going to successfully and fully represent you anymore than he’s not going to represent his client and we’re going to do it in a civilized manner, and it’s not like television where everybody’s biting at each other and slashing each other.

And some clients believe that’s the way you should do your case. And again, that helps me decide — we’re really and that’s not the person for us we’d like to be. As we say, we’d like to take good cases for good people and I think you get a better result if you have good people rather than people that are bitter or upset over gee, my check was late once and they just can’t let that go and they keep going on to the judge at the hearing about that when you’re really trying to prove permanent impairment, for example.

So we’re selective and we try to be selective because we want to have a better result and a happier result for our client.

Alan S. Pierce: Bob, I want to thank you very much for sharing your views and experience.

Robert E. Wisniewski: Thank you.

Alan S. Pierce: If any of our listeners, especially those in Arizona might need to contact you, how could they find you?

Robert E. Wisniewski: The simplest way is by telephone and I’m a big telephone person since I don’t type adequately, working on that. I’m at (602)234-3700 or an email is [email protected].

(00:29:59)

Alan S. Pierce: Well, thank you very much, Bob. You’ve been a wonderful guest. I thank all of those of you out there who listen to our shows here on Workers Comp Matters, and until our next edition please go out and make it a day that matters. Thank you.

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Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.

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