What do I do if my injured employee gets an attorney?

An employee can retain an attorney who will file an Application of Adjudication of Claim with the Workers’ Compensation Appeals Board. If you receive a Notice of Representation or an Application for Adjudication you should complete the following steps:

  1. Send a copy of the Application or Notice of Representation that you receive directly to the claim adjuster handing that claim. It is the adjuster’s responsibility to respond by sending copies of the completed Employee Claim Form and all medical records to the applicant’s attorney.
  2. Review the Application to confirm the employee’s full name, date of injury, address, occupation, and wages that are listed are all correct.
  3. If you notice any discrepancies, notify the claims adjuster of these errors right away.
  4. If there is a request for personnel records, redact privilege documents and send to the applicant attorney or to adjuster to respond on your behalf.
  5. Instruct the employee to continue to bring you a work status following each medical appointment.
  6. Discuss each work status with the employee and possible modifications or alternative jobs that the employee can perform as they recover.
  7. If the employee asks questions about their Workers’ Comp benefits or other claims issues, direct them to talk to their attorney.
  8. Request the adjuster to notify or copy you on deposition notices and all Hearing notices
  9. Send an employer representative to all depositions and Hearings. Contact the defense attorney and let them know you will be attending.

Once an attorney is representing an employee, the adjuster can no longer contact the employee directly. However, the employer has the right, and the responsibility, to continue to communicate directly with the injured employee regarding employment issues.

FEHA and ADA, the Leave Laws that overlap Workers’ Compensation, require an employer to “engage in an interactive process” with the employee. This means that you need to talk to the employee about their work restrictions and possible job accommodations.

There should be gradual improvement of the employee’s condition as they heal. If there is no change in the work status for an extended period, ask the adjuster to question the doctor of a potential change in treatment plan, order diagnostic studies, assign a nurse case manager to assist with this, or referral to a medical specialist. A final alternative would be to object to the treating doctor, and request a QME, Qualified Medical Evaluator.

Often, when specialists or QME/ AME’s become involved, the employer is left out of the correspondence. Ask your claims adjuster to forward any and all work status / work restrictions from all doctors as soon as they are received. Sometimes, even the employee is left out of this communication and they may not even know of any change in work restrictions or work abilities that are prescribed by a specialist or medical legal evaluator (AME or QME). Continue to discuss all work status reports with the employee, even if there are differing restrictions between the doctors. Encourage your employee to discuss their work abilities or restrictions with their doctor at each medical exam.

Document your file with each conversation that you have with your employee and send all offers of modified or alternative positions in writing to the injured employee. Send a copy to the claims adjuster. Continue discussions with your employee until they are released to full duty. If the work restrictions become permanent, continue the interactive process to determine if a reasonable accommodation can be made. Make any offer of a permanent accommodation in writing on the appropriate form within 60 days of notice of permanent work restrictions. Ask your claims adjuster for assistance in completing this form.

Applicant Attorney’s fee – paid from the Worker’s Comp claim:

  1. 5710 fees: Hourly fees for deposition of the applicant (employee); ranges $300-450 per hour and average is 2-4 hours.
  2. 12-15% of the settlement; Stipulations with Request for Award (permanent disability and open future medical) or Compromise and Release (lump sum).
  3. Not typical but Applicant Attorney may request 12-15% of any retro Temporary Disability benefits that AA must litigate to enforce.  
  4. Penalty payments for unreasonable delay of benefits by carrier or TPA.