August 29th, 2018|
One of the first things that I learned as a trial lawyer is that I should be educating, advising and litigating for my client. For that to happen, I need to know the same things that we were all taught as young children. What happened? When did it happen? Where did it happen? Who knows what happened? Why did it happen? And most importantly, what do you expect me to do for you? So with that, let’s explore all the areas of law that a work injury can spread to.
The Worst Day of Your Life
As part of your work day, you are asked by your branch manager to drive from your Dupont Circle worksite to the Vienna, Virginia, office to cover for a sick colleague. As you discuss this with your boss, you let her know that you have a conference call with the Atlanta office at 1 p.m. She tells you no worries; you should attend by telephone on your way to Vienna. That sounds like a plan, and before you leave, you check in with your significant other who is on their way to a job interview since they have been out of work for the last six months. Oh, and you send a text to your son that you will watch his game on Game Changer, since there will be no way you will make it back home to Maryland in time for his game. Just another day in your life, and it can’t end soon enough, you think to yourself. However, somewhere west of Falls Church, Virginia, while relaying the data to the Atlanta office, something happens. The next thing you see is your significant other holding your hand in the hospital. You are told that you are lucky to be alive because your car looks like an accordion. The tractor trailer that crashed into your car also hit another car, and that driver was not so lucky. As you try to piece this together, you notice the pins and rods sticking out of your ankle, and your back and head are throbbing with pain. You ask your significant other, what are we going to do? Unfortunately, this kind of day plays out all too frequently. As a trial lawyer, my sole goal is to try to help you put your life together again through the use of the laws that exist to protect you and everyone when this happens. So, let’s begin.
Let’s examine what happened to you. We know from the discussions at the hospital that you were involved in a vehicle crash and that your injuries were caused by that crash. There are many ways to investigate how this crash happened. We can examine the police report, the first responders’ notes and the hospital records for x-rays taken of body parts that you might not know are injured. These are just some of the initial steps I take to make sure I have a basic understanding as to how your life was changed that day.
Let’s examine when it happened to you. We know from the arrival of the first responders that your life was changed at 1:32 p.m. We know from the examination of your phone records that you were on a work call to Atlanta at the time of the crash. We know from your car data, as well as the surrounding road cameras, that you were not speeding and did not leave your lane. We also know from the letters we sent out to the company of the truck driver that they cannot dispose of the phone records or other communications that may have been taking place at the time of the crash or it will be held against them later.
Let’s examined where it happened. We know from the road cameras, towing reports, police reports and reconstruction reports (as you recall, the other car driver was not so lucky) and hospital reports that the crash happened in Falls Church, Virginia.
Let’s examine who knows what happened. We know from the investigation so far that your colleagues in Atlanta heard the crash. We know from the various reports by police that other drivers witnessed the crash. We know from the hospital that your significant other was called to the hospital and given a description of what happened, as was your boss. You also found out that statements were given to all the insurance companies involved.
Let’s examine why it happened. We know from our investigation so far that you were not the cause of this crash. However, that is not the full picture. We also have to know why your injuries happened as a result of the crash. I need to examine not only all the medical reports and tests from the hospital, but also all the treatment reports from the doctors you will need to see and pay to recover from your injuries.
How a Lawyer That Cares Protects You
As a trial lawyer, I have a pretty good idea of why injuries happen, and it usually never starts with “I meant to do that.” The fact of the matter is that all injuries can be prevented—it’s just a question of when it could have been prevented and did the person or entity want to invest the time or money it would take to prevent the injury. Now join me on a journey to put your life together again through the laws that may be available to you.
I know of only two ways that I, as a personal injury lawyer, can put your life together again under the laws: medical treatment and money. I put them in that order because if I take care of your needs, the money will take care of itself. Your first cause of action to rectify the harms brought to you and your family is to pursue a negligence action against the responsible parties. We look at many things when considering who to hold responsible for your harms, including where should we hold those parties responsible. The responsible parties to take care of you medically and financially can be the driver of the truck, the company who employs the driver of the truck, the parties responsible for the design of the roadway you were on, your employer or your own car insurance, among others. In your case, we will decide together which state or federal court we should hold the parties responsible in so that we can put your life together again. In a negligence action, the laws are designed to address both your economic and non-economic harms (pain and suffering), and depending on the state, we will want to pursue it in a court that provides the fullest recovery. However, this will take a considerable period of time, and you have bills to pay and a life to continue while you receive medical care.
We should also look at what other laws there are to protect you. Your injury arose out of and in the course of your employment, and therefore the workers’ compensation laws are available to help you medically and financially. While you are recovering and not able to work, the workers’ compensation laws of at least the District of Columbia, and maybe the surrounding DMV, will provide you with lifetime medical care at the expense of your employer’s workers’ compensation insurance, as well as tax-free weekly income replacement benefits to help financially during your recovery. This is an important law that is sometimes overlooked, but for injuries at work it is invaluable to you, since your employer is required to purchase them as part of your employee benefits.
If we believe that this life changing injury has permanently restricted you from engaging in certain job duties of your employment, you may have rights under the American with Disabilities Act. It is not okay that your career and your family’s right to happiness has been put in jeopardy as a result of this injury. Although a personal injury attorney may not specifically handle this part of your case, he or she should be able to educate as to who may be able to help.
If we believe that this life changing injury has completely eliminated your ability to ever return to gainful employment, you may have access to medical care and financial assistance under the social security laws of your state. This may include a claim for social security disability benefits which you have been paying into because of your employment. Once again, a personal injury attorney should be able to educate you as to what steps to take to protect this right. You may also have been prudent enough to have purchased a disability policy in case of your inability to work, or even your employer, as part of your employment, has a disability policy on your behalf that you could turn to for medical and financial assistance.
What You Should Expect
Now that you have been educated about your rights, you need to be advised as to what your best course is to put your life back together. We will discuss not only the time and effort it will take, but a personal injury will be open and honest about what it will cost you. In most cases, it will cost you nothing as personal injury cases are handled on a contingency basis. This basically means that your personal injury lawyer will not get paid unless you get paid. As all of us are aware, if it’s not worth fighting for, then it is not worth pursuing. I never have represented a person with a life changing injury and heard them say, “My life and my family’s life is not worth fighting for.”
At each step of the process, timely advice is the key to putting your life back together. Therefore, communication with your personal injury lawyer is a sure sign that they care about you. This is all about you. Without you, there is no personal injury case. This relationship is the foundation on which your recovery will begin.
As the saying, “put up or shut up” implies, we are going to have to fight for your rights. Your life changing injury happened, and somebody has to say, “I was the responsible party.” As simple as it is to say, I’m sorry for what I have done, it’s not that simple when money and reputation are involved. In order to put your life back together again, a personal injury lawyer may need to go to trial to have a jury of your peers hold the company of the truck driver responsible, or to force your underinsured insurance policy to pay if they refuse to pay you the benefits you purchased from them. However you choose your fight and against whom you fight, make no doubt about it, you will need a personal injury lawyer to lead the way.
As I said earlier, one of the first things I learned many years ago about what a personal injury lawyer should do: Educate, Advise, and Litigate for your clients, I have spent over 20 years of my life discovering that those are the tools of a personal injury lawyer. I have also discovered that in order to be a personal injury lawyer, I must always strive to be:
A lawyer that will always have time to listen to you. A lawyer that will always have time to put your interest first. A lawyer that will always fight for you.
June 4th, 2018|
After a major injury while at work, the last thing you may be thinking about is getting back to work. Between medical care, household bills and pain from your injury, the idea of returning to life as normal may seem like a dream. Many of our clients come to us with no knowledge of the workers’ compensation system, which was originally meant to be a “user-friendly” system that an injured worker could navigate without the assistance of a lawyer. Many injured workers quickly find out it is anything but, and that’s when they come to us for help. The goal of any workers’ compensation attorney is to help their client navigate the system and to help them eventually return their life to normalcy.
I have the privilege of working with some fantastic, seasoned attorneys here at ChasenBoscolo who are able to explain the complexities of the law, comprehend and analyze medical records and make sophisticated legal arguments on a daily basis. While all this is crucial to our mission of taking care of our clients, sometimes the best advice is the simplest. Through our experience handling workers’ compensation cases throughout D.C., Maryland and Virginia, we have found that there are certain universal truths to dealing with the workers’ compensation system. One of the basic rules of getting through your workers compensation case is, “When your Doctor tells you to go back to work, try.”
Why should I try to go back to work?
For many people, returning to work after an injury can be scary idea. Will I get hurt again? Will I be able to do my job like I used to? Will my employer treat me differently? While the barriers, both physical and mental, of returning to work can be high, we have found that there is a great value in attempting (and hopefully succeeding in) returning to work.
The first reason for this is a practical one: workers’ comp only pays you 2/3rd of your average weekly wage. In the world of workers’ comp, you will hear a lot about “AWW” and “Comp Rate.” Your comp rate is determined by taking 2/3rd of your average weekly wage. This is the amount that will be paid to you while you are temporarily and totally incapacitated from work. While this amount is tax free, it presents a financial burden to many clients, as it is typically less than most clients take home. Also, depending on your employer’s policies, you are often missing out on other benefits, such as contributions to retirement plans, health insurance and many other benefits. We understand the financial burden that a workplace injury can place on our clients.
The second reason is more of an emotional one. For many, like all of us here at ChasenBoscolo, our workdays are not just a source of a paycheck. Work can be a calling, a mission, a way for us to help and care for others. Without the ability to contribute to the world, one’s self-worth can often suffer.
Work can also be a place for social connections. Missing out on work for months at a time can be isolating. Returning to work allows injured workers to be around supportive co-workers and remain in touch with their workplace friends.
What if my doctor says I can work, but puts restrictions on what I can do?
One of the most crucial points in any workers’ comp case is when an injured worker has been cleared by their doctor to return to some sort of work. This is often called “light duty,” or returning to work with restrictions—a doctor can write a list of temporary or permanent restrictions outlining what physical restrictions an injured worker may have when they return to work. Under Virginia Code § 65.2-502, an injured employee who has been returned to work in some capacity is entitled to temporary partial disability benefits. When you return to work but are making less than you were pre-injury, either because your employer has found a new temporary job for you or because you are working fewer hours, your employer will be responsible for the temporary partial benefits. In order to prove eligibility for temporary partial disability benefits, an injured worker has to show that they have restrictions on what they can do at work and that they are earning less than they were at the time of their injury. There are also other responsibilities that the Virginia Workers’ Compensation Commission places upon an injured worker in this situation, and if you find yourself in this position, you should consult with an experienced workers’ compensation attorney to explain these.
Sometimes, after a workplace injury, your employer could offer you work within your restrictions, often called selective employment. Here, the burden is on the employee to attempt to do the work offered within the treating doctor’s recommendations. Under Virginia Code § 65.2-510, if an employer offers an injured worker selective employment, that is, employment within the restrictions, and the employee refuses, they will not be entitled to wage loss benefits. This is another reason why, when given the chance to return to work, in this case for your prior employer, it is best to do so.
An injured worker who has been cleared by their doctor to return to a partial work capacity and is making less money than they were pre-injury, either because of reduced hours or because their employer does not have a light duty position for them to return to, is obligated to “market” their remaining work capacity. What this means, in layman’s terms, is to look for another job.
While the requirements of marketing that will satisfy the Virginia Workers’ Compensation Commission are best addressed in their own, separate blog post, the marketing requirement shows the importance that the Commission places on attempting to return to work.
An entire cottage industry of vendors has developed to help insurance companies lower their costs and return injured workers to gainful employment sooner. One is a specific type of physical therapy called work hardening or work conditioning. The goal of either of these programs is to condition the body to return to a full day of work, prevent future injury and assist individuals in getting back to work. Oftentimes, these programs simulate the activities that an injured worker will perform at work and are meant to help the injured worker have an easier, as well as a faster, transition back to work. Injured workers should attempt to participate in these programs to the extent that they are in agreement with what their doctors are ordering.
One of the most difficult conversations workers’ compensation attorneys have with their clients is about the things that workers’ comp cannot do for them. The list is large, but one of the toughest is the inability to hold your job. Workers’ compensation, unlike FMLA leave, does not mandate that your employer hold your job for you. This varies from employer to employer, but it is always best that employees keep open the lines of communication between themselves and their employer while they are out on medical leave. By returning to work quickly, or at least demonstrating to your employer a willingness to attempt to return, many injured workers increase their chances of their job being there once they are cleared to return to work.
When an injured worker is under an “open award,” but they have been cleared by a doctor to return to “full duty” work, the employer will most likely file to terminate their benefits based on the worker’s ability to return to work. The test here is if the injured worker is able to return to their pre-injury job. When a Commissioner is examining the injured worker’s capabilities, they will look beyond the medical records. Meekins v. Legends Group/Heritage Golf Club, 77 O.W.C., holds that a bona fide attempt to return to work is better evidence than a medical opinion of the employee’s ability to do so. If an offer of selective employment is made to an injured worker within their restrictions, the burden is on the worker to show that they were justified in refusing the work. If an injured worker has actually tried to return to that work and experienced too much difficulty, the Commission will give great deference to that credible testimony.
In Sky Chefs v. Rogers, a truck driver was injured while working for Sky Chefs, which prepared and delivered food to airplanes. Sky Chefs, Inc., v. Rogers, 222 Va. 800. The insurer eventually filed an application alleging that Mr. Rogers could return to his regular employment, therefore cutting off his workers’ compensation benefits. Mr. Rogers eventually returned to work, but while at work, he was in pain, and eventually fell. Even in the face of difficult medical testimony against the claimant, the Commission found that he was unable to perform his work duties, based on his credible testimony about his return to work. “The commissioner found that Rogers ‘functional inability to continue to perform his food handling duties (associated with his persistent symptoms of periodic numbness, pain and swelling) casts doubt upon the employer’s assertion that the claimant was able to return to his former employment in the date in question.”
Another reason it is important to try to return to work is for the possibility of job and career advancement, including any pay raises. While you can receive wage loss benefits for up to 500 weeks in workers’ comp, the rate at which you will be paid is “locked” to when you get injured (with the exception of small cost of living increases). If you work in a field with regular pay raises annually, or different levels of compensation, your workers’ comp payments will not reflect that. By not working, you are missing the opportunity to grow in your career and make more money.
An example of where the commission looked favorably on an injured worker who returned to work is the Starbucks Coffee Co. v. Shy case. Here, Ms. Shy was out of work, but returned for a brief period of 12 hours. Her employer attempted to terminate her benefits, but the Commission found that the employer did not meet their burden of demonstrating that the injured worker could return to her work duties. The burden is on the employer to demonstrate that the injured worker is capable of returning to work, and as this case shows, they cannot meet this burden by simply saying that the injured worker worked for a brief period of time.
There have been times when the Commission has looked harshly upon injured workers who they believe could return to work and haven’t. This can have the effect of termination of benefits. In Webb v. Eastern Airlines, the court found an injured flight attendant did not properly attempt to return to work. Here, the company’s written policy was that an injured employee must be cleared by the company’s doctor. She did not have this clearance, but there was no evidence that she attempted to get this clearance: “there is no evidence that she attempted to return to work or comply with Eastern’s policy.” The Commission seems to be saying that the injured worker didn’t even try to get back to work, and because of this, her benefits were terminated.
What if I don’t think I’m ready to go back to work?
One of the most frequent questions that we get as workers’ compensation attorneys is from injured workers who do not feel either mentally or physically able to return to work, but who have been cleared by their treating doctor, to return. In order for your medical providers to return you to work, it is crucial that they understand the physical requirements of your job. It is not enough to tell your doctor your job title or that you lift things. Describe in as much detail as you can what your day-to-day job duties are, and how many times per day you are expected to perform them. A doctor may be returning you to work without a full understanding of the requirements of your job, and therefore, returning you too early or before you are able to perform your job tasks. It is also crucial that you communicate all your restrictions to your employer.
One of the best moments for any workers’ compensation attorney is when a client can successfully return to work. While we understand that this goal is not always achievable, we hope to be able to help as many people as possible get there successfully.
February 19th, 2018|
Living in the Washington, D.C., area, one of the first questions a new acquaintance will ask is, “What do you do?” When I respond that I practice workers’ compensation law, a common follow-up question in the midst of our conversation may be, “Have you ever met someone who faked an injury to get compensation benefits?” Here is where I cringe. What may seem like a harmless, conversation-starting question makes me cringe because in my years of practice, I have never met an injured worker who would do that. I have never met a worker who wanted to be in a position of uncertainty or to ask his or her employer to provide workers’ compensation benefits.
This common question I receive saddens me because it represents a societal view which is not rational but, tragically, remains prevalent and stigmatizing. My view is that protecting another’s right to work protects families and human rights. Workers’ compensation laws should be a just and effective protection of injured workers and their families. Workers’ compensation laws should be a societal good and should respect the dignity of workers. When I do receive the above question (which still makes me cringe), I embrace the opportunity to share my views of workers’ compensation coverage as a protection of human rights.
This post will identify work as a human right, recognize the historical, moral obligation of employers and insurers to care for their workers and will briefly discuss the threatening legislative erosion of workers’ compensation benefits across the United States. My hope is that the thoughts shared here can shift minds away from any false stigma associated with making a workers’ compensation claim to a view of it as a protection of the right to work—a human right.
Dignity of the Person Through Work
The right to work is a basic human right, a universal dignity that each human deserves, due to the fact that they are human. It is more than just “making a living.” Work is the daily way that we secure our present and our future as individuals. Through work, we protect and feed our families and build a future for our family units. Through work, we express who we are. Through work, we can express and live out what we value. Through work, we develop and share our talents and skills with others. Interactions in the work force allow opportunities to interact with others that we would not experience otherwise.
The people that I represent have a diverse range of physical skills, creative ideas and interpersonal talents which they express through their occupations. They have immediate needs for their growing families and dreams to build for them. Earning a fair wage for fair hours affords most the resources to engage in recreational activities that they enjoy outside of work. Considering the foregoing reality and common interests of the average worker, it would not be rational for that worker to voluntarily threaten that most basic means to provide food, shelter and security to one’s self and one’s family. One who would do so is the vast, vast exception, not the rule.
Employers Must Respect the Dignity of Workers, as Should Their Insurers
“Woe to him who treats his workers unjustly.” Jeremiah 22:13.
“Those who become rich by abusing their workers have sinned against God.” James 5:1-6.
“And O my people! Give just measure and weight, nor withhold from the people the things that are their due” (Quran 11:85).
The above scriptural quotes, while ancient and hard-hitting, apply to the present-day obligation for employers to respect the dignity of their workers. These historic texts encapsulate the compelling worth of each and every worker, a worth that should be appreciated from a secular sense as well. The right to work and the moral obligation for employers to provide decent and fair wages, to allow for organization and the joining of unions and to provide workplace safety really is a hallowed and fundamental concept. With this historical and ethical perspective, modern employment laws should be designed and applied with deference to human rights, and employers and their agents should appreciate the gravity of their responsibility.
Saint John Paul II recognized, “While work, in all its many senses, is an obligation, that is to say a duty, it is also a source of rights on the part of the worker.” (St. John Paul II, On Human Work (Laborem Exercens), no. 16). He continued,
[S]ocial benefits intended to ensure the life and health of workers and their families play a part here. The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge. [Another social benefit] concerns the right to a pension and to insurance for old age and in case of accidents at work. Within the sphere of these principal rights, there develops a whole system of particular rights which, together with remuneration for work, determine the correct relationship between worker and employer. Among these rights there should never be overlooked the right to a working environment and to manufacturing processes which are not harmful to the workers’ physical health or to their moral integrity. (St. John Paul II, On Human Work (Laborem Exercens), no. 19).
I utilize the above texts from major world religions merely to demonstrate the universality and seriousness of a just employee to employer relationship. The obligations that an employer holds towards its workforce are serious and support the basic human rights of each worker by protecting their safety and providing an ability to have affordable healthcare and insurance in case of injury.
The moral obligation to treat workers with dignity and respect should not cease when a worker is upon the bridge of workers’ compensation. Employers provide or purchase workers’ compensation insurance in the event of a work injury. For employers who insure themselves, the obligations to respect the dignity of the worker outlined above do not cease during the pendency of a workers’ compensation claim. It follows that the entities tasked by employers to insure them in the case of a work injury, thereby stepping into the shoes of the employer in providing wage replacement and medical benefits, should adhere to the same fundamental respect for the dignity of the worker. Too often, insurance companies, who are far removed from the value human capital, will dehumanize the worker through failing to pay wage-replacement benefits, by denying medical care recommended by physicians, by delinquency in paying medical bills to cause a disincentive for doctors to treat injured workers and through a general tenor of disrespect and cynicism towards injured workers. This insurance industry goal of discouraging injured workers at the expense of protecting margins runs afoul of the human rights of the worker.
I urge those who are employed in the workers’ compensation insurance industry, who step into the obligations of an employer in the event of a work injury, to evaluate the grave effect of their practices and habits on the precious lives of workers and their families. Human rights should supersede market-based or business interests without fail.
Laws Limiting Workers’ Compensation Benefits Threaten Human Rights
Workers’ compensation laws were founded on a societal good: to promote safe workplaces and to ensure that, in the case of a work injury, a worker received efficient, expedient medical care and wage-replacement benefits. In exchange for this right, employers received protection from civil suits brought against them by injured workers in negligence. The foundation of these laws put human rights first in protecting a worker’s ability to heal his body and protecting a workers’ right to provide for himself and his family after sacrificing his or her body for the employer’s business.
In the past couple decades, several states have amended their workers’ compensation laws to make them more favorable to industry over the individual worker victims. These changes, fueled by business-oriented interests and lobbying, interfere with the purpose of workers’ compensation laws. The reduction and limitation of benefits for injured workers, accomplished in the name of economic interests, profoundly affects families who depend on the earnings of the household. Even at their best, workers’ compensation benefits do not compensate an injured worker for the far-reaching effects that a serious injury and resulting job loss can have: loss of earning potential, depression, inability to afford childcare and strain on spousal and familial relationships. Therefore, any abridgement on benefits is a punch in the gut to the dignity of the worker. Legislatures should value workers’ compensation benefits as a protection of human rights, not a protection of uncertain economic theories based on drawing business to one’s jurisdiction.
There should not be any stigma in protecting the fundamental human right to work. Workers’ compensation laws are based on protecting the ability of workers to endure the disruption caused by the unfortunate happening of a work injury. If you or a loved one have been injured at work, I encourage you to seek an attorney who will advocate against employers and insurance companies that do not value fundamental rights. Seek an advocate who views workers’ compensation benefits as a protection of human rights and a process in which the injured worker should be treated with dignity and respect.
January 29th, 2018|
As the son of an aircraft mechanic, I remember my dad always telling me, “Work hard for the things you want in this life.” One day I asked him, “What do you want in life?” He told me that he wanted a roof over his family’s head, he wanted my mom to be happy and he wanted his boys to have a life better than he and his dad. I thought that sounded easy enough.
Then one morning in 1986, during my sophomore year of high school, as I was waiting for the bus, the phone rang. I heard my mom shout, “Oh no, what hospital?” She asked me to get my stuff and get in the car. You see, as my left-handed, 47-year-old dad was changing a tire on a plane, the jack broke and the wheel well came down, severing several tendons in his hand. As I went back to see him, I remember thinking, What is this going to look like? What is this going to feel like?
The fact of the matter is, I was scared, and I am still scared today. What happens when someone or something wakes you up from your dreams? That was the day that I learned what it meant to be a father and husband.
The basic premise of workers’ compensation benefits is to provide income replacement and medical care so that injured workers are not left behind while they are recuperating from their injuries. The legislatures in all 50 states have indicated how injured workers’ claims will be handled. In most states, you cannot sue your employer for economic and non-economic damages (pain and suffering), so it is rare that an injured worker can be made whole for all the losses incurred by an injury. With so many workers traveling to work in nearby states, it is increasingly important to know your rights when you get injured, because the insurance companies who are responsible for paying the benefits do.
What should I do if I get hurt on the job?
Step 1: Report what happened and all of your injuries to your employer.
When a worker gets injured, the first thing they should do is notify, preferably in writing, their supervisor or someone in human resources. They need to document not only how the injury happened, but more importantly, all the areas of the body that feel injured. Remember, you’re not a teenager anymore, so your body will respond differently to injury. It is easy to know how and when you sustained injury if it was a witnessed slip and fall or an accident by machine. But what if you work in an occupation where you do a lot of walking, or you work in a loud environment, or you sit at a desk with a headset in your ear for 30 years?
Step 2: See a doctor.
Injury is not so easily identified by you, so seeking the consultation of a physician for your symptoms can protect your dream without intention on your behalf. Many baby boomers and Generation-X workers were raised not to complain or whine about their problems. “Don’t make a big deal out of this,” is what we probably heard when faced with an issue that required us to press on for the sake of others. Therefore, most injured workers do not go and seek medical care immediately to document their injuries until it becomes obvious to them that their problems are worse than they thought. With nothing legally sophisticated about it, the insurance company now has a defense to your claim. It goes like this: “If they were as injured as they say they are, why didn’t they go to the doctor right away?” So please, go to the doctor right away.
But Matt, maybe you haven’t been keeping up with current events. My employer is one of the millions who doesn’t provide health insurance, and I can’t afford to pay for the visit. In all states, the workers’ compensation laws are designed to provide reasonable, necessary and causally-related medical care and treatment for as long as the injury requires at the expense of the workers’ compensation insurance legally required by your employer to have on your behalf. This is part of your employment package, so take advantage of it for the protection of your future.
Step 3: Get your paystubs and keep track of missed work.
After you give notice of your injuries and seek treatment from a doctor, you need to look at your prior pay for a certain period of time leading up to the accident. This will help you to get a picture of what your income replacement will look like while you are unable to work. Remember, the bill man doesn’t care that you got injured, and your responsibility to pay your personal obligations each month still exists. These benefits are called Temporary Total Disability Benefits.
In no state are temporary total disability benefits paid at 100 percent of your earnings. They are usually paid at two-thirds of your weekly pay, tax-free. Some states allow you to be paid based upon all of the jobs you may have been working at the time of your injury; some do not. Some states allow you to include your overtime worked; some do not. Although I always had the best sports equipment come the first of each basketball and baseball season, I knew it came at the expense of third shift ending and morning overtime for my dad.
It is critical you know what rights you have as you have personal obligations to satisfy based upon your ability to work. In order to receive these benefits, you will need a doctor’s note indicating what treatment is being recommended, a doctor’s note indicating that you are not able to return to your pre-injury job, and an actual medical note that indicates that your inability to work and recommended treatment is reasonable, necessary and causally related to your work accident. Without those things, or help from a lawyer that cares, your American Dream could be in jeopardy.
Recovering From a Work Injury
Has anybody been told by their employer, “Go ahead, take as much time as you need.” I believe there are some of you who have heard this, but for a great majority of workers barely able to make ends meet, that is not the case. Also, do any workers wake up healthy and say, “I hope an injury happens so that the last 22 years of my career are meaningless.” Of course not. Most—if not all—injured people want to get as good as they can get and move forward with their dreams.
However, medical care and treatment is expensive, and as we see in the news today regarding healthcare reform, this is the most important time for you. Will you be able to have all the physical therapy you need to return to your dream, and will it begin promptly? Will you be able to undergo the MRI or other diagnostic test your doctors need to determine your conditions, and will it be done promptly? Will you be able to undergo the surgery you need to return to your dream, and will it be done promptly? Will your employment be there when you do everything within your power to keep living your dream? As you can see, how quickly this happens determines the lasting effects the injury has on your abilities to live your dreams. This is often the most critical part of your claim. What you are left with are the pieces you will need help with picking up and moving on.
When some of the pieces are missing, most states allow for the workers to receive an award for the permanent affect. This is called a Permanent Partial Disability Award. Many times, the permanent effect is loss of motion, loss of function or loss of the ability to engage in a specific activity. Although each state may place different levels of importance to each, these are the most important in my opinion. These are the essential elements for survival. Without them, you cannot be part of the pack, you cannot be part of the team and you cannot be the productive member of society like you were the day before your injury. When you experience one or more of these losses or an actual loss to a part of your body, you may be entitled to an award. A majority of the states have already predetermined what your arm is worth, or what your leg is worth. Did they ask you? Did they ask you before they reduced what your arm is worth in 1999 in the District of Columbia, for example? You need every available benefit that is left to be able to move on with your dream.
Sometimes, a permanent effect of the injury is your inability to return to the same type of work that you were physically able to do before the accident. If this occurs, you may need the assistance of vocational rehabilitation. This assistance includes basic job hunting instructions like resume building and interview skills. It may include job placement into another transferable area of employment for you. It may include retraining or schooling to compete with others in today’s labor market. Whatever the assistance, remember this is your dream that will be affected. If you return to a job that pays you less than what you were making before you sustained injury, the insurance company may be required to pay permanent wage loss benefits. Most states, like the District of Columbia, allow these benefits to be paid at two-thirds of the difference, and some states, like Maryland, calculate the effect of the permanent wage loss differently. Regardless of the structure, you need to know when and how these benefits help keep your dream alive. Sadly, sometimes, the dream dies on the job.
What about the effects on my family?
In all states, your loved ones, through the workers’ compensation insurance company, have benefits available to help pay for funeral expenses and, in some cases, income replacement for dependent family members. You need to be aware that not all dreams die at the initial workplace accident. Many times, your loved one has a consequence of the initial injury or accident that results in the dream dying. This often requires me to review the medical records and speak to colleagues and other witnesses to determine if there is a causal connection. Don’t be afraid to ask questions to the answers you may need but don’t know. Remember, your loved ones’ dream includes you.
Why I Fight for Injured Workers
In 1993, I graduated from the University of Pittsburgh. I stood there with my mom and brother and realized how lucky I was. No debt and a shiny new political science degree. Then fear set in. What did I do? I had just wasted 4 years of my dad’s hard-earned money with a degree in something I hated. You see, the degree didn’t really require a lot of hard work. It was easy. As the panic subsided, I decided to attend law school. I had no reason at the time except that I hated politics, and the only job interview I had was for selling cutlery door-to-door. So I packed up my car, kissed my girlfriend goodbye (she’s my wife now) and went to law school. I hated everything about it. There were very few people like me, I thought at the time. During my last semester, I took an elective: workers’ compensation. That will be an easy A, I said to myself. It’s just comp. At the conclusion of the 15 weeks, I was exhausted. It was the hardest class I had ever taken in my life.
At discharge from the hospital, my dad’s hand was so damaged that I thought his career was over. He was my idol. How could he curse anymore at all the young mechanics he was trying to help teach in the middle of the hangar? How would our used cars that he could always fix and keep running last? How could he support us, seeing as our private catholic school cost $1,800.00 a year? How was he going to be my dad? He missed two weeks of work, because that is how much a union mechanic got in 1986. He used the green therapy ball and grip strength device while my mom changed his bandages and he continued on.
This year, my dad turned 79 years old. He cannot do much of anything with his left hand now, he cannot walk without a walker as a result of 14-hour shifts standing and walking across miles of hangar for 30 years and he cannot hear as a result of years of making sure loud airplane engines were operating properly for the safety of the public.
So after 20 years of knowing what I know now, I asked him, “Why didn’t you make a claim for your hand?”
He told me, “Because when you’re a parent, you have to make decisions for others, not yourself.”
I told him that I would’ve protected him. We took a sip of our beers and he said, “I have no doubt you would’ve.”
January 9th, 2018|
To me, the underdog is characterized by a lifelong fight. Things seem bleak, but the underdog fights to overcome. He fights and he struggles. He keeps his head down and works. Every once in a while, pop culture reminds us of how great the underdog story is: a JFK is elected or an Obama inspires us all. The Orioles beat the Yankees. But then, almost always on cue, the underdog is forced to endure more struggle. The underdog sees his fight stopped and his dream deterred.
However, what makes the underdog special is how he responds to struggle. The underdog responds to insurmountable odds by gritting his teeth and pushing forward. The underdog does not stop trying. I am intimately familiar with the underdog’s story, and it’s why I do what I do. Why? Because I am one.
I started ChasenBoscolo on March 5, 1986, to be a law firm for the underdog, by the underdog. Back then, it was just Law Offices of Barry M. Chasen, and it was just my secretary and me. My oldest son had just been born. He was two months old when I started the firm. My friends told me the timing seemed a little off, but when you’re driven by a passion and you’ve got the underdog’s fight, timing doesn’t matter.
Five years before going out on my own, when I got my first job as a lawyer, it was the first time that I had ever set foot in a law firm. I was 33 years old. I was the 19th lawyer in a firm that represented injured workers in workers’ compensation claims and plaintiffs in personal injury cases in Maryland, DC and Virginia. However, over the five years that I worked for another firm, I learned a sad truth: lawyers in the industry made decisions and gave counsel to their clients that were in the firm’s best interest rather than the client’s. The goal was to increase the fee that the firm made. That felt wrong to me. Frankly, that is wrong.
So I left and started my own firm, the firm that today is called ChasenBoscolo. I did it, no matter how odd the timing, because I was sure that I could represent my clients and do a better job than the old firm. Of the cases that I wanted to take with me, 91% of the clients elected to stay with me. They wanted me to fight for them. I was committed to working in their best interest. I was committed to a philosophy then that still guides our firm today: if you take care of the clients, the money will take care of itself.
But all of this started long before I started fighting independently for my clients. Much earlier than my career as a lawyer, I had to fight for myself. Because we don’t have all day, and because in the interest of your time, I’ve edited my first draft of this post down from nearly 5,000 words. I’ll simply share three short segments of my own “underdogging” so that you can see why the fight we take on at ChasenBoscolo really hits home for me.
I’m ten years old. I’m poor—well, my family is poor. My father, a taxi driver with an eighth-grade education, is working through the night. Last week he was robbed at gunpoint, so we don’t have any money. This week, we’ll be lucky if he brings home a hundred dollars. Me and a classmate both rip our jeans sliding into base at recess. He returns to school the next day with a new pair. I return with a patch on my ass. I realize I’m poor when my friends go to summer camp, to swimming pools and to amusement parks. I don’t do any of that. I’m lucky if my father drives us to the ocean for a day trip in his cab. Despite our poverty, my parents constantly reinforce that even though we have no money, I will get a college education. They ensure me that we will figure it out. At ten, that doesn’t mean much to me, but I feel supported.
As I get older, it means the world. I’m confident in myself because of their support. Then my father dies from a fatal heart attack on the street. He’s 51 years old. Things get worse. My mother cannot not maintain the mortgage payments on our house. It’s sold at auction and then rented back to us. Our phone service is shut off; our lights don’t turn on. I don’t know where our next meal is coming from.
I’m an underdog though. I’m a fighter. I don’t give up. Although I want to go to college, I work instead. I’m hired by the Social Security Administration as a GS-2 file clerk making $3,680 a year. I get promoted multiple times over a few years. I end up being promoted to the level of a computer programmer. I even start taking college courses at night and finish enough credits to be about a quarter of the way done. The light inside me will not flicker out.
I’m drafted into the army. The 1960s are a time of unrest. College students, African-Americans and others protest against the actions of our government. We are engaged in an unpopular war and the rights of African-Americans are being infringed from equal accommodations to voting rights to economic equality. The anti-war protests become increasingly violent with flag burnings, bombings, rock throwing. Groups like the Weather Underground, Students for a Democratic Society, The Black Panthers, The Symbionese Liberation Army and The Youth International Party are all active in the ‘60s. In the Civil Rights Movement, there is a mix of violent and non-violent protests. They are fighting for justice, equality and opposing a war that is remote to the interests of the United States and is taking place half a world away.
I am anti-war. I don’t consider moving to Canada, but I don’t understand what we’re doing in Vietnam. I keep my head down and I push myself during our basic training. I have no other choice but to fight, to do my best. I’m offered an opportunity to train to become an officer, and I take it. I understand that I may be safer as an officer than as an artillery man. Things are looking up. But of course, as always, the underdog is faced with challenges no matter how good things seem to get.
I train to be an officer, and this is how it goes: after a hard day of training, our commanders show up at our barracks and tell us to put on our full-pack uniforms. They then take us for a long run which culminates with us crawling through a muddy stream. We’re exhausted and filthy when we get back to our barracks after 11:00 p.m. The training commanders then tell us that we have an inspection at 5:00 a.m. After we’re dismissed and go inside, we discover that our bunks have been trashed and our bookcases overturned. Our foot lockers and lockers have been turned upside down. We have six hours to get everything in order, and then we’ll do it all again the next day. That seems bad to me until I get to Vietnam.
I land in Vietnam and spend a few months doing basic intelligence reporting, but then everything changes. I’m walking back to my office with my commanding officer after a meeting and suddenly a succession of rocket blasts come closer and closer. The blasts do not stop. We start to run. My ears are ringing now but it’s my heartbeat that I hear. Me and my commanding officer slide into a bunker, a hollowed-out mound of wet sand bags. We look at each other but neither of us say a thing. Our faces say enough: fear. I hear my heart beat. I hear the blasts, still louder. And then finally, just before I’m sure the next one will land on our bunker, they stop. I sit there for a long time and consider how lucky I am. Then I think about how unlucky I am. Then again—lucky.
Sometimes, for some people, the blasts don’t stop before the bunker. For me they do, and I get to come home after another year. Within 30 minutes of landing at Travis Air Force Base in the Bay area, I am called a “baby killer” by protesters outside the gates. I cannot wear my uniform off base without being subjected to a constant barrage of verbal abuse. Whenever I appear in public in uniform, I am always insulted and attacked.
It’s 2018 and I’ve survived Vietnam. I’ve finished night school at the University of Maryland University College. I’ve finished law school at night too: the University of Baltimore. I’m a lawyer. I’ve found my calling, and I’ve made a career out of it. I’ve realized that my old employers had the wrong attitude. They didn’t know what it meant to be an underdog. When I leave that firm, I take almost all of my clients with me. Since then, I’ve helped thousands of other clients. I’ve won countless cases. I’m proud of myself. I’ve grown my firm.
I’ve married the love of my life, and I have three wonderful sons who are grown themselves. They didn’t have to go to night school. I’ve provided for them in a way that they’re not the same underdog I was. But they still are underdogs in some sense. We all are in different ways.
It’s 2018, and the firm is still growing. We’re successful; we have commercials. We’re hiring lawyers and winning cases. We’re delivering justice to underdogs. I’m checking every box by the measure of conventional success. But things are not easy. We haven’t cracked a code where winning cases is easy. Let me explain why: being an underdog means that you’re fighting a beast that’s bigger than you.
It’s 2018, and judges have been “tort reformed.” They default to side on the behalf of the insurance companies—the behemoth conglomerates making more than a billion dollars a year. Case decision makers—commissioners—suffer from “compassion fatigue.” The law is not applied fairly and impartially and the law is rarely construed in favor of the injured worker. Some of this is the result of politics. Some of it has occurred because of tort reform propaganda and lies.
It’s 2018, and the deck is still stacked against the underdog. On one side, you have the little guy represented by a firm not much larger than a football team. On the other side, you have big corporations or insurance companies with virtually unlimited resources. They will always present the best evidence that money can buy. These companies on the other side make more than $250 million per quarter. In three months, they make more money to use at their disposal than we can ever dream of.
It’s 2018, and I continue to fight. I continue to fight because it’s what I know how to do. I know how to push on, hungry and in the dark: my father has died. I know how to push on, heartbeat in my throat: the blasts get closer and closer and my commanding officer and I believe that we’re already dead. And I know how to push on when I walk into the courtroom and I see both representatives of a massive insurance company who have lobbied politicians in D.C. to pass legislation that helps them win cases. I see my client who, just like me, is an underdog.
Just like me—just like all of us—my clients are pushing forward to make a better life for themselves and their families. Then they are injured in an act of negligence. When that happens, they deserve representation. They deserve someone who will show up ready to fight, someone who won’t back down from a company with deep pockets who threatens to stand in the way of justice—someone who’s seen stuff a lot tougher than the representation and evidence that money can buy.