Filing A Claim Petition, The Hearings Process And Settling Your Claim
Filing a Claim Petition with the Office of Administrative Hearings begins the legal process of adjudicating workers’ compensation claims. If your claim has been denied, you need to file a Claim Petition. If you are filing for the payment of medical expenses only, you may file a medical request under certain circumstances. If you receive paperwork filed against you (e.g. a Notice of Intent to Discontinue Benefits or “NOID”), you should immediately contact an experienced workers’ compensation attorney.
Selecting an attorney to represent you is an important decision. Not all attorneys are alike. Ask the attorney with whom you are speaking how much of his or her practice is devoted to representing injured workers.
You should never be charged a fee unless and attorney is successful in representing you. You should not have to pay an initial consultation fee. Your attorney should also be willing to advance the costs of litigation for you. Under the Workers’ Compensation Act, counsel fees are earned on a contingency fee basis limited to twenty percent (20%) of the amount recovered.
1. The Claim Process
After the claim is initiated, the work comp claim process starts. First, the parties will generally conduct discovery. This includes gathering medical records, employment records, a deposition, and usually an independent medical exam (IME). This involves a lot of scheduling and paperwork which can be confusing and burdensome, but which can be handled relatively easily by a competent attorney and his or her staff. This process is tedious and usually takes several months to complete.
2. The Hearing
Approximately six months after filing the Claim Petition, there will be a settlement conference scheduled. If settlement cannot be reached, the matter will be set for a hearing. Workers’ compensation hearings are held at one of six locations, depending on the location of the parties and where the injury took place. At that time, you and your attorney, along with any witnesses you call, will present testimony and evidence in support of your claim. The employer and insurer will attempt to cast doubt on your claim by cross-examining you and your witness, and presenting contrary evidence including the independent medical examiner’s report and/or deposition transcript. After all of the evidence has been received, the compensation judge will make a determination.
You have the right to settle your workers’ compensation claim (with a judge’s approval) for a single lump sum payment. You may settle your wage loss benefits only, your medical benefits, or both. Usually the insurer will want to settle both if they are able. The settlement amount is primarily based upon the nature of your injury, your age, and what your wage benefit rate payments are. There is no compensation for the pain and suffering you endured as a result of the injury.
Any decision to settle your case should be discussed with your family and an experienced workers’ compensation attorney.