HAPPENINGS IN WORKERS’ COMPENSATION

By Kenneth W. Hannegan

Happy New Year to everyone!  We now embark on a year wherein there will be much change and turmoil not only in the economy but also in workers’ compensation.  Accordingly, if you get nothing else out of this column, I would like you to remember two things:  First, the Workers’ Compensation system in no longer “injured friendly” and has become so complicated that, if you are injured, you are foolish not to hire an attorney; Secondly, in choosing an attorney, make sure that he or she has represented police/public safety personnel before and is very knowledgeable in the special rules and presumptions for police/safety personnel.

In the past, I have never told anyone to hire an attorney.  In fact, on many occasions, I have assisted officers when they have wanted to handle their own cases.  However, since the 2005 revision of the workers’ comp system, there have been many changes, both substantive and procedural, which have made it impossible for the “lay person” to represent him/herself.  Risk management/Human Resource personnel have had hours of training to protect the city’s interest thereby placing the injured worker at a great disadvantage.  In addition, the city always has legal counsel to further advise them; why shouldn’t you?

Attorney fees in workers’ compensation are set by law and must be awarded by the workers’ compensation appeals board.  Generally speaking, the amount awarded to the attorney is based upon 12-15% of the value of the contested benefits. There are no out-of-pocket expenses for the injured member and the attorney is not allowed to charge the injured directly.  This fee system was set up so that anyone could afford an attorney to represent them, even if they were not working and had no income.  Should you ever find yourself in the unfortunate position of being injured; having representation will be well worth the fees awarded.

As previously stated, representing police/safety personnel requires knowledge of the special rules and presumptions that apply to their injuries.  Accordingly, in choosing an attorney, make sure that he/she has a reputation for representing police/safety personnel in workers’ compensation.  Several recent court decisions have demonstrated the tragic results that can happen by having an attorney who did not understand the presumptions for police officers.  In the most tragic case, a police officer was diagnosed with brain cancer which is presumed to be job related under Labor Code 3212.1 if the elements/requirements of the section are met.  In cancer cases, one of the elements that must be proven by the injured worker is “exposure to a known carcinogen”.  In this case the attorney proved that the officer was exposed to exhaust fumes, gun cleaning solvent and lead from weapons training.  However he never presented any evidence that the officer was exposed to a known carcinogen.  The court held that as exposure was never proven, the presumption could not be relied upon and found on behalf of the city.

In today’s economy, cities will be doing everything they can to defeat presumptions, take away benefits and reduce costs resulting from on duty injuries.  This action by the cities will result in many more denials of claims and increased litigation before the Workers’ Compensation Appeals Board.  Protect yourself!

As always, any comments or questions, feel free to e-mail me at kenhannegan@sbcglobal.net.

Keep it safe out there!

Ken