Workers’ Comp Clients: When to Seek Counsel

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Transcript

Workers Comp Matters

Workers’ Comp Clients: When to Seek Counsel

12/17/2019

 

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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 once again to Legal Talk Network and Workers Comp Matters. I am your host Alan Pierce. I am with the Salem, Massachusetts Workers Comp Law Firm of Pierce, Pierce & Napolitano. And we are happy to bring you another edition of Workers Comp Matters today with our guest Bernard Nomberg. Bernard practices law in Birmingham, Alabama. He’s with the Nomberg Law Firm. I’ve known Bernard for a while. We are in some of the same circles in terms of professional organizations.

 

He’s a graduate of Vanderbilt University and he did his law school at Faulkner University’s James School of Law in Montgomery, Alabama, and he’s in practice with his brother David in Birmingham, representing victims of workplace injuries and we are going to talk today about the role of attorneys, why some folks are perhaps adverse to getting legal counsel in a workers’ comp claim or don’t understand the process.

 

But before we do, I want to take a minute to acquaint you with our sponsor PInow. You can find a local qualified private investigator anywhere in the United States and you can do so by visiting pinow.com to learn more.

 

So, Bernard, how’s the weather in Birmingham, Alabama today?

 

Bernard D. Nomberg: Today it’s pretty mild, but I suspect my weather’s probably a little bit less of a bothersome than it is for you guys up north.

 

Alan S. Pierce: Yeah, it’s been kind of raw and we’re recording this in early December of 2019, which is, this is what I call the second month of winter in Massachusetts.

 

Bernie — Bernard, you and I sort of do the same thing for the same folks in two different jurisdictions. I know you and I have chatted in Alabama, it is significantly different in process than in Massachusetts or perhaps some of the other states around the country. But, one of the things that strikes me is that initial contact by a potential client and more frequently than not when they make an appointment or when I meet with them, sometimes it’s many weeks, months or sometimes years after their injury, and the question comes up, why are you getting a lawyer now or conversely, they’ll say I don’t know if I need a lawyer but.

 

So tell us a little bit just to get started about what you have observed from our clientele and their either reluctance or lack of sophisticated knowledge about why getting a lawyer earlier rather than later in a workers’ comp claim is advisable?

 

Bernard D. Nomberg: Well, certainly, and Alan, thank you for inviting me on to your podcast and talking with your audience, I’m honored to do so.

 

We have always maintained the focus and approach at our firm and just to let you know our father, he founded our firm and he’s now happily off counsel and retired but collectively, we have almost a hundred years of experience in the firm of representing injured workers.

 

And Alabama is the only State that I think still has litigation as part of its process as opposed to administrative or other types of means to resolve cases. But, we have lots of law firms in town and in the metro area that are on billboards and television, and the like, but that’s not our approach.

 

And we try to make sure from the very first communication anyone has with our firm that this is the type of work that we do, this may be a new thing to them, it may be a very stressful time in their lives, it almost always is, but it’s not new to us. All of the injuries and situations and things that they’re dealing with, we try to assure them that we’ve been through this many times before.

 

So our job is to try to lower their stress levels by getting the answers that they’re looking for and we do that through social media, we do that through our YouTube channel, we do it through just constant communication with them because the more information that they have and the earlier in the process that they get it, the better inform they are to make decisions, and hopefully to reduce just a little bit of that stress.

 

(00:05:04)

 

It’s the fear of the unknown and the more they know, the less there is of that fear or stress.

 

Alan S. Pierce: And how many claimants proceed pro se or represent themselves in Alabama? Does that happen at all? Is it even possible given your system?

 

Bernard D. Nomberg: It does and it is. You don’t have to go through litigation but you can go through litigation. I would say 90% of our cases where we’ve signed up clients, don’t go through the litigation process. You really only have to get into a lawsuit if there’s really some genuine issues that need to be decided upon by our Circuit Judge. That’s our Trial-level Judge.

 

There’s approximately — this last statistic I saw was for 2018, there’s about 18,000 injury claims that are turned into the Department of Labor annually in Alabama and I think that numbers remain pretty steady over the years.

 

About one-third of those are handled pro se. Again, these are the statistics that I’ve seen from the Department of Labor which oversees the work comp aspect of our State. So then two-thirds, what would that be about?

 

Alan S. Pierce: Pro se means they’re representing themselves? No lawyer?

 

Bernard D. Nomberg: Correct, correct. So about 12,000 cases throughout the State have an attorney representing them through the end of the case.

 

Well, it’s not really advisable that you do it pro se just because of the nuances of our laws, the differences between a scheduled member injury, like a finger or an ear or an eye, those have a very specific set number of value dollar-wise to what those cases are worth.

 

You usually don’t need an attorney for those, but if it’s a body as a whole injury like a back, a shoulder, a head or a combination of injuries, then it usually is advisable to have an attorney for that, those types of claims.

 

Alan S. Pierce: And how often are claims just outright denied, either the insurer or employer takes a position, the injury didn’t happen or that the injury is not causing any disability that’s related to the work that it’s perhaps related to something outside of work or a natural progression of arthritis? What happens with those claims?

 

Bernard D. Nomberg: Well, those are the type of cases that typically lead to us filing the lawsuit. If the medical evidence is more favorable than the insurance carrier or the employer is allowing the injured worker to believe or we feel that they are denying the claim for a false reason or just a made-up reason or just being careless about the claim, it’s too easy for an insurance adjuster who may have 200 or 300 claims on their desk to deny a claim for any reason, some low-hanging fruit so to speak, just give them a reason, they’ll deny it, then we do our investigation and if it turns out to be a legitimate injury that was caused from at least in part, it doesn’t have to be the sole cause just a cause medically and legally then that would lead us to be to filing a suit. And sadly or unfortunately, it’s way more often than we’d like to admit that they do those denials.

 

Alan S. Pierce: And once the suit is filed, is it out of the hands of the Department of Labor and then into your judicial system?

 

Bernard D. Nomberg: Correct, then it goes through the course of that the jurisdiction belongs with the Circuit Judge who it’s been assigned to.

 

Alan S. Pierce: That is unique and I think most of our listeners or folks that are in other jurisdictions realize as you mentioned, at the outset that generally an administrative agency while it may be — it may still be litigation but not in the traditional sense of a District Court case but there would be either hearings or trials at a local administrative agency, whether it’s an industrial commission or industrial accident board with either hearing officers, commissioners or administrative judges sitting as a fact-finder and making rulings of law and making awards based on testimony, evidence and medical submissions or depositions or in-person testimony.

 

So it would seem to be certainly a client or potential client would come to your office because an injury happened and the claim was denied. I’ve tried to sort of make a list from my years of experience as to why injured workers seek out an attorney and I think probably the first one we most both agree that if the claim is denied, generally speaking, that’s when we will get contacted by a client.

 

(00:09:52)

 

The second, at least for me, and maybe you can tell me your experience is kind of the way the employer starts to relate to his or her employee after an injury either by aggressively questioning the injury or pestering the worker about getting office notes or doctor’s notes and coming back to work or more commonly, ignoring the injured worker that there’s either no contact or overbearing or intrusive contact.

 

How do you find that in your jurisdiction as something that drives an injured worker to have to turn to an attorney to get some action going?

 

Bernard D. Nomberg: Alan, as we commonly talk with our potential new clients in the very first meeting that we may have with them is they could be the greatest employee in the world to that business, but when they get hurt on the job, whether it’s their fault or not, they then get kicked to the curb, so to speak, because they no longer are productive for the company’s business.

 

And it could be someone who’s been there for 15 years or it could be somebody who is just hired two days prior to being hurt, it doesn’t matter, but what you can’t do is retaliate against them.

 

We have laws in Alabama under the work comp laws that say that you cannot retaliate against an injured worker by terminating their employment for the sole reason for the termination is because of maintaining a work comp claim.

 

Now, we’re in at-will employment state, which means you can be hired or fired really if for any reason or no reason. I mean, it can be as straightforward as today is blue-striped shirt day but you’re wearing a green solid shirt and I know that’s a ridiculous example, but it’s true.

 

There are very few protections for at-will employees. However, if they terminate you and our rule of thumb is within about six months to nine months or even a year after being hurt on the job, we carefully analyze why they were really terminated. They’re never going to come out and say, well, we’re going to get rid of you because you’re maintaining this claim, and you’re costing us business.

 

They make up reasons, it’s circumstantial evidence, those cases are very difficult to win. But going back to your original question is the reason why we get involved so early with our clients is because most of the time, insurance companies go on fishing expeditions by making our clients or potential future clients sign all of these releases.

 

So they’ll order medical records going all the way back to their teenage or childhood era a time period looking for any reason that they’ve had a related similar accident or injury.

 

Now, under our laws, if you were not under any doctor’s supervision, restrictions, limitations at the time you got hurt, even if you had prior knee surgeries and you re-injured that same knee, it’s as if you were never hurt before that day. Because if a new injury occurs, for example, you’ve bumped up your knee and the doctor who’s treating you says, well, this accident where you slipped and fell into this hole contributed to a — created a new injury, then that’s compensable or if the doctor says, well, you had this pre-existing knee injury but you were fine before you got hurt but now that I see that you’ve gotten hurt, it’s permanently aggravated the old injury.

 

Again, that’s compensable. The only way that it’s not, and this is where the fishing comes in, is if the doctor happens to say this injury — this accident we stepped in the hole contributed nothing to the way you’re feeling now. This is arthritis, the trauma has nothing to do with it. So we’d like to get in very early with the clients to help protect from all of those things.

 

Alan S. Pierce: It’s interesting you bring up those two things. I want to comment on them briefly before we take a break, but as I’ve reminded our audience in the past and it’s a good time to remind them now, every State is different and what happens in Alabama, what happens in Massachusetts regarding these two issues you just brought up, retaliation or whether an injury is related can be different in other jurisdictions, even slightly different. So that whatever you hear on a show like this, you have to keep in mind that you really need to have somebody in your locality. So it’s getting back to the two things you brought up about the terminating an employee six months, nine months or whatever after they return to work and making it difficult to prove that it was retaliation.

 

Massachusetts has a section in our workers’ comp law, I wouldn’t say it is utilized very often, but basically, it creates a presumption that if an injured worker loses his job within a year of returning to work, there was a presumption it is because of the injury and the employer then must rebut the presumption by evidence that it was not.

 

(00:15:04)

 

So it at least recognizes the fact that these things might happen and certainly employers will find a reason, maybe there’s a valid reason for terminating but sometimes somebody gets back to work and then two weeks later, all of a sudden they’ve been an exemplary employee and they’re trying the best, and next thing you know they’re laid off or terminated and they come in to see me saying which I’m certain that it was because I did the injury.

 

The second thing you brought up was somebody with the arthritic knee but tweaks it at work and the work is responsible. A lot of jurisdictions now are moving to a different standard of aggravation of a pre-existing condition where the burden is on the injured worker when there is prior problems in that part of the body to show that the work injury is either a major or the major cause so that you have a more difficult or a higher burden of proof and we’ve noticed this now where a lot of the workforce is an ageing workforce and we all suffer from a variety of degenerative conditions. Life is basically a degenerative condition from birth to growth and then the body breaks down over time so that if you do have an older worker who injures her back or knee or shoulder and has some arthritis in there, that is fertile ground for an insurance company here to resist the claim.

 

One other aspect I’d like to touch on again before we leave is — before we take a break rather is, do you find that injured workers will seek you out because even though they’re getting workers’ comp, their checks are late, their bills are unpaid, they’re not getting reimbursed for prescriptions, things like that that the claims’ process is not going as smoothly as it should and what role do you have in alleviating those problems.

 

Bernard D. Nomberg: We get contacted for all of those reasons plus about 50 others. But what typically happens is and this may be just a pretty quick phone call or sometimes the person who’s contacting us insists on a face-to-face meeting, we really try to handle those type of contacts if they’re not currently our client by way of a phone call because a lot of times a 15-minute or less question and answer can usually take care of answering those questions or we will direct them to our YouTube channel with all of the videos that are there, and if they really can’t find what they’re looking for to contact us again.

 

But most of the time because in Alabama, there’s only a limited number of attorneys who do this type of work, a limited number of insurance attorneys who defend these claims, we kind of know who represents what companies and what insurance companies are affiliated with what law firms.

 

Sometimes, a quick phone call to one of those attorneys can help smooth over those issues or we’ll hear from the attorney on the other side as to what their side of the story is, which you know, it’s never as smooth or as one-sided as one party might think, but a lot of times we can help with those by making phone calls than the like.

 

Now, if there are bigger issues then we absolutely will get them into the office and we’ll go over why we feel they need representation and then they’ll decide if they want to go forward and hire us and so forth.

 

Alan S. Pierce: And we’re going to talk about the hiring process and legal fees in the workers’ comp after we take a short break and we will be back with Bernard Nomberg to talk about the attorneys’ role in workers’ comp.

 

We’ll be right back.

 

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Alan S. Pierce: Welcome back to Workers Comp Matters with Alan Pierce talking to Bernard Nomberg out of Birmingham, Alabama.

 

When a new client comes in to see me sometimes I forget to mention how we get paid because for the most part at least here in Massachusetts, we handle these cases and I guess what could be described sort of as a contingency fee basis.

 

(00:19:54)

 

In other words, we get a legal fee if for example there’s a settlement of the case, we’re allowed to charge a legal fee and we can sometimes be paid a legal fee to resolve a particular issue without settling the case and that in those instances, the insurance company pays our fee.

 

What are the arrangements when you undertake a new client and how do you get paid?

 

Bernard D. Nomberg: Our cases are set the attorney’s fee as well as the compensation levels for types of injuries are set under our Alabama Workers’ Compensation Act and our fee is limited to a cap of 15% of the recovery and we’re able to additionally recover our case expenses for pursuing the case.

 

If we try a case in court and we’re successful, we can petition the court to pay our case expenses outside of the award that’s given, that would save the client some money. But traditionally and most of the time, when cases are settled through mediation or just private discussions and the like, the fee and the case expenses come out of the total settlement amount.

 

Alan S. Pierce: So the fee is basically based upon the success of obtaining an award or a settlement and then it’s a percentage.

 

Bernard D. Nomberg: Correct.

 

Alan S. Pierce: So, if you are unsuccessful and you’ve put a ton of time into the case and you lose it in Circuit Court or the case doesn’t settle, the client doesn’t get a bill.

 

Bernard D. Nomberg: They do not get a bill. We just eat our expenses and we move on to our next case, that’s why we have to be very careful in the selection of our cases.

 

Alan S. Pierce: What other services do you find that maybe an injured worker might need some legal assistance with other than the workers’ comp claim that might arise out of the fact that he or she has a workers’ comp claim perhaps with a significant ongoing disability? What are some of the areas that perhaps the client doesn’t know about that you could help them with other than the workers’ comp?

 

Bernard D. Nomberg: Quite often we may pursue a Social Security case seeking either Disability or SSI benefits depending on the situation for them; also, depending on the facts of how they were injured may determine if there are third-party cases to be pursued. If a car accident was the originating traumatic event, there may be a car accident case to pursue.

 

There could be third-party liability based on faulty machinery, there could be a products liability case. Additionally, sometimes if it’s a disputed case where the claim for work comp benefits is being denied, we may help or assist them in pursuing short or long-term disability assuming there is that type of coverage available through a different type of policy.

 

Alan S. Pierce: Yes, so there is a whole palette of either potential or additional sources of benefits other than workers’ comp and you’ve hit on the most of them, the Social Security Disability, third-party, a short or long-term disability, sometime there could even be some policies the client may not be aware of that if they are disabled, they may get some relief for their mortgage payment or their car payment. They may have had built into their mortgage or car payments, something like that.

 

So it’s really the knowledge of how to coordinate benefits. There also may be some other causes of action that might arise. You mentioned something perhaps if the insurance company misbehaves in the way they handle the claim, the employer retaliates and things like that.

 

So you’ve got the whole sort of issue of fair treatment. Sometimes, you could look in and find some wage issues that may have been underreported or underpaid etc. So in closing, what would you say is the most important thing a potential client, somebody who’s been injured at work who really doesn’t think he or she needs an attorney, maybe they’re getting paid their workers’ comp benefits, they’re working hard to get back to work, what would you say the single best reason that you should at least reach out to a comp attorney to consult with? What would that be?

 

Bernard D. Nomberg: For the same reason, you go to an accountant to do your taxes or to a dentist for your teeth, you want to get a professional to give you an honest and fair assessment of your situation to make sure that your legal rights are being protected.

 

Now, whether it is in Alabama or Massachusetts or any other State, make sure that you talk with an attorney from that State who’s licensed and experienced in that State handling similar matters. I would not suggest going to a domestic relations attorney or someone who handles products liability cases.

 

(00:25:02)

 

Make sure it’s somebody who is experienced handling workers’ compensation or job-related injury cases. Usually, it’ll be a free consultation and if you don’t want to talk to them directly maybe they have on their social media platforms whether it’s their website or YouTube or wherever it may be, there may be resources there that may help to answer some of your questions.

 

Alan S. Pierce: I will tell you, this has been very enlightening and in fact I would like just your comment on social media. It works both ways. I know many of us in our profession and even in the medical profession, a lot of professions, we are resorting to or utilizing social media as a marketing and informational vehicle but what has your experience been with insurance companies using your clients’ own social media presence to defend the killing perhaps to show that your client is not as disabled as she would let us to believe.

 

Are you having any problems and do you counsel your clients about maintaining a social media presence after an injury?

 

Bernard D. Nomberg: Well, we used to have problems. Now, we have a social media czar, it is what I like to call her in our office, and what we do is from the very outset of when we sign up a new client, we provide them a do’s and don’ts sheet that we expect for them to read. We also let them know just what you just alluded to. It doesn’t matter what you put on social media, nothing is protected.

 

It can all be found even if you have a password. There’s many, many ways that people can go around a password-protected site to find things. So the bottom line is what we tell them is don’t put anything on social media that you don’t want a Judge to be able to see. Because ultimately, if you put comments, pictures and things that hurt your credibility, it doesn’t matter how great a case you have, you could have the best case ever, the worst injuries, potentially the best recovery, but if your credibility comes into question in front of the decision-maker, the Judge in our case, then you’re not going to be awarded nearly what you expect or maybe even get shut out completely because nobody is going to believe when you start putting things on social media that are contrary to what your claim and the allegations are.

 

Alan S. Pierce: Well, it’s not a great way to end the show but it’s sage advice from a wise and experienced workers’ comp attorney and a good guy, Bernard Nomberg, who practices with his brother David, and I understand you are a second generation firm, started by your dad.

 

We are a first generation firm but I have my son Judson who’s an occasional host here at Workers Comp Matters, so I wish you the very best. I thank you so much for participating and adding to the content we have here on Workers Comp Matters.

 

And for those of you who listen to us, please tune in again and go out and make it a day that matters. Bye bye.

 

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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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