CLAIMANT S COUNSEL: ETHICAL ISSUES IN WORKERS COMPENSATION

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1 CLAIMANT S COUNSEL: ETHICAL ISSUES IN WORKERS COMPENSATION ROYCE V. BICKLEIN, Odessa Miller & Bicklein State Bar of Texas 9 th ANNUAL ADVANCED WORKERS COMPENSATION LAW COURSE August 2-3, 2012 Austin CHAPTER 13

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3 ROYCE V. BICKLEIN The Law Offices of Miller & Bicklein, P.C East University, Suite D-5 Odessa, Texas (432) (432) (fax) Odessa Lubbock 4555 East University, Suite D S. Loop 289, Suite 103A Odessa, Texas Lubbock, Texas San Antonio Abilene 8207 Callaghan Road, Suite Chestnut, Suite 213 San Antonio, Texas Abilene, Texas EDUCATION JD, St. Mary s University School of Law, San Antonio, Texas, BA, The University of Texas at San Antonio, EXPERIENCE Law Offices of Miller & Bicklein, P.C to Present Managing partner of a plaintiff s personal injury and workers compensation law firm. Representing injured Texans in pursuit of their rights before the DWC and in district court actions. LICENSURE / SPECIALIZATION 1998 Admitted to practice by Supreme Court of Texas Board Certified Workers Compensation Law by the Texas Board of Legal Specialization PROFESSIONAL ACTIVITIES / SPEAKING State Bar of Texas, Advanced Workers Compensation Law; 2012 Member of planning committee and frequent speaker on issues such as attorney s fees, ethical considerations, subrogation, legislation, and other topics Permian Basin Trial Lawyers: Present status of workers compensation Legislation and other changes State Bar of Texas, Legislative Update: Workers Compensation. Regular 2011 Contributor and speaker Workers Compensation Commission, 14 th Annual Conference, Scheduled Speaker; Claimant Rights: Bad Faith 2005 Workers Comp Publications, Speaker, Legislative Update Recurring Lobbying Texas Senate Committee on State Affairs and Texas House of Representatives Committee on Business & Industry regarding various legislation affecting injured workers. Fighting for the rights of his current and future clients.

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5 Claimant s Counsel: Ethical Issues In Workers Compensation Chapter 13 TABLE OF CONTENTS I. INTRODUCTION... 1 II. SCOPE OF PRACTICE... 1 A. Social Security Disability... 1 B. Employment Discrimination... 1 C. Third Party Claims... 2 D. Bad Faith... 2 E. Medical Dispute Resolution... 2 III. SUB-CLAIMANTS... 2 A. Non-Payment... 3 B. Looking for a Final Ruling... 3 C. The Caring Provider... 3 IV. MULTI-INJURY CLAIMS... 4 A. Is it a New Injury... 4 B. Scope of Representation... 4 V. MULTI-CARRIER CLAIMS... 4 A. MEDICAL NARRATIVES... 4 B. Pleas to the Alternative... 4 VI. CONCLUSION... 5 i

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7 Claimant s Counsel: Ethical Issues In Workers Compensation Chapter 13 CLAIMANT S COUNSEL: ETHICAL ISSUES IN WORKERS COMPENSATION I. INTRODUCTION Lawyers are always faced with ethical issues and must always be aware of the conflicts that arise in the everyday practice of law. This article is an attempt to shed some light on some of the ethical issues for Claimant s attorneys that are unique or peculiar to the practice of workers compensation law. II. SCOPE OF PRACTICE Being a Claimant s attorney brings its own challenges to your scope of practice. Any plaintiff s practice which focuses on workers compensation will also give rise to claims in other areas. Of course, there are third party case, but in addition, you will also find unique exposure to Social Security Disability (SSD) claims, employment discrimination, and bad faith claims (oh wait, not that last one, that doesn t exist anymore). A. Social Security Disability Although SSD claims and workers compensation claims seem to go hand and hand, they are extremely different and often have interests which run counter to each other. An injured worker on workers compensation who suffers a permanent and significant disability will most likely find it necessary to apply for SSD or some form of Federal Government assistance. When to apply is often a tricky question. First, SSD requires the medical condition to be significant enough to prevent the injured party from returning to work for a year, so applying early is not usually possible. In addition, the SSD process takes six months to a year (sometimes longer) in most cases and therefore it requires significant commitment. The definitions and applications of the term disability differ from one system to the other and the standard of evidence needed is not the same. The inherent conflict between SSD and workers compensation comes in the benefit status. Although workers compensation insurance does not consider SSD benefits as income the reverse is not true. The Federal Government considers workers compensation benefits as income and it 1 must be reported as such. Your client s SSD benefits are then reduced based on this income. The payout in attorney s fees in the SSD system is based on the payment of back due benefits and therefore your pursuit of worker s compensation benefits reduces your ability to recover fees on the SSD claims. The better your job is done on the workers compensation side, the less your potential recovery is on the SSD side of things. In general, the per-client income for an SSD client is larger for an attorney and therefore there is a temptation to focus on one versus the other. This becomes a potential for conflict. Because so many of our clients become SSD applicants (and only increasing from year to year) it is very tempting to start an SSD practice. Like workers compensation, SSD is an administrative law process and a base of knowledge can be picked up very quickly. Unlike our Texas Workers Compensation system there are also lots of guides and handbooks from all over the country that can be very helpful along with multiple seminars in just about every geographic area. However, this author cautions claimant s attorneys because of the inherent conflict in the benefits and the disharmony in the system. -- I would be remiss if I also didn t impart one last comment on SSD. I have actually attended a disability hearing under the Social Security system where I represented an injured party. During the entire 25 minute hearing I uttered no more than 10 words, repeating Yes, your honor a few times. The judge controls the entire process and determines what or how much you can actually advocate. It is in fact, a very different system. For all of the reasons outlined above, you may want to consider a referral relationship. There are always SSD attorneys that you can refer your clients too who are willing to help. You may have done a lot of ground work for them already and a referral relationship can be helpful to both practitioners. B. Employment Discrimination At least monthly, if you represent injured workers, you will be asked about suing the [former] employer because of discrimination. Given the current trend of removing injured workers rights in pursuit of wrongful acts of others, this may be an area where you can expand your practice. There are no inherent conflicts

8 Claimant s Counsel: Ethical Issues In Workers Compensation Chapter 13 between workers compensation and employment law except in reduction of recovery. If you are successful in pursuing workers compensation you have reduced the damages recoverable under the discrimination claim because you have necessarily recovered some of the lost wages. C. Third Party Claims The most readily available claims that come from an active claimant s workers compensation practice is the third party suits that potentially come with every client. The most common mistake in pursuing these claims is the offset to the workers compensation carrier. Please remember that the workers compensation carrier has an automatic lien of recovery of dollar for dollar the amount that they have spent in paying for medical care and lost wages. When settling a third party suit, timing is crucial. If your injured worker is receiving income benefits and medical treatment and you settle a third party case, then the carrier gets to take a holiday from the future payment of benefits. Can you wait to settle? Waiting to settle until all indemnity benefits have paid out and the expected medical benefits have also paid out is the easiest way to avoid the conflict, but this is not always possible. Disclosure is vital. The carrier holiday and lien can be a difficult concept for injured workers to grasp. You must disclose the holiday to your clients and make sure that they understand that there right to benefits has come to at least a temporary end. Everything is negotiable, including the lien and holiday so long as you, the client and the Carrier agree. Please also remember Tx. Lab. Code This allows the attorney for the injured worker to be paid from the recovery of the entire settlement that may not exceed a one-third interest. This is important when negotiating the lien with the Carrier, even if the Carrier has hired its own counsel. The Labor Code makes it clear that the Carrier s attorney has to actively represent their interest. So, if you do all the work, you should get all of the pay. D. Bad Faith This section did discuss the proper way to pursue a Bad Faith Claim against a wrongfully acting insurance carrier that you soundly defeated in a CCH because their legal position was so awful; but it has been removed. Apparently, Bad Faith in workers compensation doesn t exist; never did. E. Medical Dispute Resolution If your practice includes workers compensation, what does that mean? Do you do only BRCs and CCHs? Do you do district court work as well? Do you do both plaintiff and defense work in district court? Do you do SOAH hearings? Do you represent them in pursuit of medical rights and through the MDR process? Workers compensation seems incredibly narrow, but it can lead you into many other areas. Your contract, from the beginning, should spell out what you will and will not pursue. As a rule, the contract that I use excludes MDR and SOAH. I regularly pursue MDR for clients but I exclude it from my contracts. Be careful in taking on a claim where benefits have been exhausted and you are left to still pursue medical claims. It is my practice to pursue extent of injury claims or MDR claims after benefits have been exhausted, but I do so with the full knowledge that I will not be paid. Not a profitable concept, but I feel ethically bound to help injured workers. To avoid this problem, the scope of your contract and your representation can be narrowly drawn to exclude those things you can not or will not do. It is essential to frame your representation and narrow your responsibilities to your clients. III. SUB-CLAIMANTS Unfortunately Sub-Claimant s have rights. Also unfortunately, they sometime pursue them. On a regular basis I have been preparing for BRCs for the week ahead (actually, the night before the actual BRC) and I can t figure out why I am going to the BRC. A logical place to start is looking for the DWC-45, BRC Request. When I get my hands on this it usually gives me some idea of why I was so upset with the carrier just 30 days ago. All too often these days I can t find the DWC-45 anywhere in the file. After I tear apart the file and my office, yell at my staff for losing things, it occurs to me that neither I nor the carrier requested the BRC and instead some medical care provider has done so. I probably attend about 10 of these or more per year and I have yet to ever receive an actual DWC-45 from the sub-claimant 2

9 Claimant s Counsel: Ethical Issues In Workers Compensation Chapter 13 nor any exchange (How is this possible under the new rules?). A sub-claimant has a right to file for a BRC and has a right to pursue compensability issues even if you don t want to. This can be problematic. These generally fall into two categories; one dealing with a doctor who just wants to get paid and the other dealing with a provider who is just trying to get resolution and they don t care what happens. There is also a very small third category where you have a very caring doctor who is just trying to help the injured worker, but I don t see this very often. A. Non-Payment There are certain medical care providers who regularly file for BRCs after they have pre-authed medical care and been denied payment. Sometimes they have done this correctly. It is my experience that this most regularly occurs when there a chronic pain program or work hardening program that has been denied payment. The medical provider files for a BRC because of the extent denial because he/she insists that the pain program was for the strain/sprain of the lumbar spine. These can normally be handled very quickly and amicably with little fuss. If there was preauth for the treatment it is my experience that the billing is almost always appropriate. The Carrier didn t like it, because they believed it was excessive, but the doctors who normally pursue these are careful to ensure that it the preauthorization was for an already compensable condition. If this is the case, go to the BRC, facilitate settlement and negotiation and help get the provider paid. Make sure that you understand the compensable injury that was treated and don t allow the sub-claimant to control the hearing. It is your client s interest that is really impacted. If it is for a non-compensable condition, make sure you explain to the sub-claimant why/how they messed up. Most sub-claimants in this situation will choose not to pursue the claim further under this circumstance. These providers are looking to get paid with as little work as possible and if they are shown their mistakes, they will often retreat. If they still want to go forward, it is my advice to treat this as your own claim. Take ownership of the dispute, lead the way, don t follow and help protect your client s rights. 3 B. Looking for a Final Ruling There are also a great deal of sub-claimants looking for a final ruling of any sort. They don t care if they lose, they just want the DWC to have a ruling. This allows them to change their billing, clear their books, write off the debt, or in general, just move on. I find these sub-claimant s far more dangerous than the first category. Their treatment is normally for conditions or diagnosis that have been disputed and therefore there is often a true extent of injury problem. It is my first rule to take control. They are pursuing my client s rights and they don t care about winning. It is my belief that you can not sit idly by and watch this go on, but instead, be proactive. If you are not ready to go up to a CCH, then don t go. They have a right to request the BRC, but you, as the injured workers counsel, have the burden of proof and you therefore have some rights (albeit, limited) to control the pace of the dispute. Second, communicate with the provider. Make sure they understand you have a common goal and that it is better that they get paid by workers compensation than try to pursue your client or write off the billing. If you can get them on your side, they can be a real asset in pursuing the dispute. Third, make sure your client understands why you are there and what his options are. Its not as simple as choosing not to pursue an extent dispute because it is too costly or unnecessary for future care. Make sure your client understands that they can be forced to proceed, like it or not. C. The Caring Provider Perhaps I have gotten old and cynical, but I don t really see this too often. This arises when your client is having treatment provided by proactive, claimant-friendly provider. The most dangerous sub-claimant of them all. The first rule here is to take control. The second rule is to take control. The third rule is to take control. Too often these providers have agendas not driven by medical care and need. You have a duty to protect your client as much as possible so that they pursue only those claims worthy of pursuit and not just blindly file for extent disputes over a multitude of conditions he or she doesn t really care about.

10 Claimant s Counsel: Ethical Issues In Workers Compensation Chapter 13 A strong personality is helpful in intervening in this type of dispute. If you sit passively back and watch the doctor pursue claims they inevitably make mistakes that an attorney would not make. Those mistakes cost your client, so take control of the process. No matter who filed for the BRC, it is your client s rights at stake. IV. MULTI-INJURY CLAIMS If you practice claimant workers compensation law, then you will eventually have a client that has multiple claims. If your lucky, they will be spaced years apart and involve completely different body parts. However, if this were always the case this wouldn t be a section covered in ethics. A. Is it a New Injury The first question to determine is whether it is a new injury or not. Economically, it is normally best that it is a new injury. It re-opens TIBS eligibility, provides for a second impairment rating and opens a new claim for medical care with less hassles than pursuing the old claim. However, what is the AWW? Is this impacted by a prior period of disability? Can you get this changed to your benefit under the Rules? There are always exceptions and every case is different, but you first have to determine what your client s rights are in claiming an old vs. new injury. --Oh yeah, you may want to consider the medical. Joking aside, the medical providers can make this decision for you. Comparing MRIs, medical conditions, etc., will often help you determine whether it is really an old injury or a new injury. However, this is often a very gray area where reasonable minds will differ. You must get your hands dirty, get deep into the file and help your client decide what is best for him/her based on the medical evidence with an eye on benefits and detriments, of a new vs. old injury. B. Scope of Representation It is my practice in a multi-injury claim to represent the injured worker in every claim that he/she has. If there is three injuries, then represent them in all of them. This allows you unfettered and readily accessible rights to all of their medical records. It allows you more control with regards to which case(s) goes forward and which case does not. When in doubt, sign separate contracts and DWC-150s for each claim. The Carrier has some rights to bring in the other claim. A claim for pre-existing conditions, etc. often will drag the second claim in whether you want it to come in or not. What if you don t represent all claims? You might as well get into it from the beginning so you are better prepared when it occurs. If you represent the claimant for one injury, and not a second, technically the ombudsmen can step in on the other claim. Do you want an ombudsmen in the room? Do you want to train them? Do you want them grading your papers? Do you want them to pursue the other claim against you? Did you pick the wrong claim? Avoid these problems and represent the injured worker on both claims and decide together what should be pursued. V. MULTI-CARRIER CLAIMS If you are really lucky, your multi-injury claim becomes a multi-carrier claim. Your client gets two injuries, only months apart, but somehow the Carrier changed. This can often work in your favor, and you need to recognize this. If you are pursuing a new injury and the new carrier is alleging a pre-existing condition or trying to lay everything off on the old carrier, the old carrier can help. A. MEDICAL NARRATIVES In the situation described above, the old carrier will be on your side. They want a new injury to be found, get them off the hook for future medical and walk away from the Claimant. They will have lots of medical records that could be helpful. If it s a really tough case, you might even be able to talk the Carrier into getting a peer review or an RME. Its my experience that in these situations they almost always conclude that the new injury does in fact exist and that it includes all of those disputed diagnosis. Don t become a Carrier. Don t rely solely on the specious evidence of a peer review, but use it to add to the mountain of evidence you have already gathered. B. Pleas to the Alternative After you have used the old carrier to your advantage, in closing arguments, make sure that the Hearing Officer knows that someone is responsible. Make sure there is only two options 4

11 Claimant s Counsel: Ethical Issues In Workers Compensation Chapter 13 and you leave the room with the ability to hold someone responsible for medical care. This process normally starts long before the CCH. If you pursue a new injury and the carrier alleges an old injury is responsible, you may find it necessary to make both cases compensable. This becomes very tricky and I normally try to avoid a formal question regarding both injuries, but it is sometimes necessary and sometimes a good thing. If done properly, you can guarantee medical coverage in the future, even if you can t guarantee income benefits. Frame the issues and argue so in way that leaves the hearing officer with the only option to find at least one carrier responsible. VI. CONCLUSION These are just a few of the ethical issues that can arise in a plaintiff s workers compensation practice. Claimant s counsel is still faced with the same ethical questions as any other lawyer and any other personal injury lawyer. In addition to those regular problems, the issues laid out above are a few of the ethical areas raised that are more peculiar for an injured workers counsel than for others. Please note that this is not intended to be an exhaustive list, but rather are some of the things this author has seen during the course of my practice. 5

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