Thursday, June 9, 2016

A Workers' Compensation Attorney Considers the Past and the Future

The workers' compensation attorney of today faces an ever-changing legal landscape that can impact whether or not the client will succeed. Rather than filing suits, actions for work-related injuries take the form of petitions that are present to administrative tribunals. These quasi-judicial forums have different practice rules than a traditional court and are governed by state statutory schemes.

While being injured at work may seem like a straightforward situation, there are many variables that a lawyer may have to deal with in the presentation of his/her client's case. Medical histories, the factual circumstances of the incident, and the prognosis for recovery all must be measured against the particular statutory scheme that determines whether an injury qualifies for an award by the tribunal.

Factual Circumstances

The first step that a workers' compensation attorney must take is to investigate the material facts surrounding the injury. The key element here is to establish that the injury was, in fact, work-related. While this may appear to be an obvious conclusion, there are a number of variables that can, and do, impact a finding as to whether the injuries were related to work.

Location is an important factor in developing a petitioner's case. If the injury occurred on premises that were under the control of the employer, a strong argument can be presented that the incident was work-related. The time of the occurrence can also factor into the determination. An employee who was not on the premises during scheduled work hours, for example, may have to supply justification as to why they were present on site when the injury occurred.

While injuries that occur while going to or coming from work are not generally covered, certain circumstances may still fall under the heading of "work-related." The best example is that of an employee who parks their car in a designated spot and is injured while walking to the work site.

Horseplay, intentional or criminal acts, intoxication (or drug usage), as well as other kinds of activity that deviate from the employee's job description could all be reasons that a claim for benefits may be denied. Ultimately, it is the employer who must establish that the injury occurred outside the scope of employment in order to bar recovery.

The Medical Aspect

Establishing the existence of an injury requires the workers' compensation attorney to obtain medical opinions as to the causation, and duration of the injury. This kind of expert testimony will also have to answer questions whether the injury is a new medical situation, aggravation of a prior condition, or the reccurrence of an existing injury that had reached a physical plateau.

Making these kinds of determinations can shift the ultimate responsibility to a prior employer and insurance carrier from the current employer. In the case of disability being permanent, the lawyer may then seek a lump sum settlement in the form of a commutation of future benefits. Some jurisdictions also refer to this as a redemption proceeding. In this case, the injured party agrees to a settlement amount rather than receive weekly checks from the employer's insurance carrier.

The task of the modern workers' compensation attorney is to develop a successful presentation of the client's case that encompasses the past history, the present situation, and future needs. As the case law involving injured workers continues to evolve, the approaches of a litigator specializing in this field must continue to expand as well.

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