Often times we are in the midst of litigation and our clients ask: “Why isn’t this case over yet?” To them it is clear what the other side is entitled to and what they are not entitled to. So they cannot understand why there is litigation over something that, to them, is black and white. However, many times it is something very small that leads to significant litigation and/or prolongs litigation longer than necessary. These small things can also lead to potential risk and an award being entered against the client, which could have potentially been avoided. Although not exhaustive, the following is a list of small and seemingly insignificant things that we regularly see which lead to unnecessary risk; as well as what we recommend to help avoid that risk.
Vague, incomplete, and/or inaccurate DWC forms for workers compensation filings. We know that both the employers and carriers are extremely busy. Many times the DWC forms provided contain somewhat inaccurate and/or incomplete information which can lead to potential issues. For example:
1. Notice of Injury – Employer agrees with the description of accident even though the description and compensability is disputed. By checking the box saying the employer agreed with the date of accident, this becomes an admission opposing counsel may attempt to rely upon to prove compensability and argue waiver. In order to avoid this, the description of accident needs to be more specific, and it needs to be indicated the employer disagrees when there is a dispute.
2. Injured body parts are listed as multiple rather than specific – if the body parts are listed as multiple body parts rather than the specific part that was actually injured, this opens up the possibility for Claimant to allege employer’s knowledge of injuries to other body parts after the fact. It is important to be very specific in the initial reporting otherwise potential notice defenses will be waived. If you are uncertain of the exact injuries, list what injuries you are aware of or that injuries are unknown at this time. Then file an amendment once the injuries are known.
3. DWC-25 – while this is something doctors have to complete, often times they are again inadequately filled out and/or vague. Follow up with the doctor to ensure full understanding of the recommendations and obtain clarification, in writing, where necessary as soon as possible. Failure to do so may result in a dispute over what the doctor actually meant.
Providing incomplete documentation to defense counsel. It is very disconcerting when a defense counsel attends a deposition only to find out emails, notes, and other documentation relevant to the claim were not previously provided. Many times, this information can result in a completely different legal analysis regarding exposure and risk. Accordingly, it is imperative that every single piece of paper, document, note, text message, e-mail, witness statement, etc. relating to the Claimant/Plaintiff be produced to the defense counsel at the time of assignment or as soon thereafter as possible. Just because you do not feel it is relevant does not mean that it isn’t, or that it won’t lead to something that is relevant. Provide us the documentation so that we can ensure we are aware of any potential issues and prepare a legal opinion with a full understanding of the potential evidence in the case. This can also reduce litigation costs over arguments surrounding discovery.
Not adequately documenting and maintaining records of phone calls, communications, text messages, etc. – I understand that it is not a natural thought to document every single attempted contact with an employee. However, I’ve had numerous cases over the years where we had to rely solely on testimony to establish attempted contacts. When this becomes a battle between the plaintiff and the defendant, it will come down to credibility. If the judge finds both parties to be credible, the judge will usually lean in favor of the Claimant/Plaintiff. However, if there were notes taken contemporaneously, or text messages, emails, and phone logs are kept, we can establish documentary proof in addition to testimony. The notes should also be descriptive- don’t just put in there the claimant was called; but whether you talked to the Claimant, a voicemail had to be left, what was left on the voicemail, or what was discussed with the Claimant.
Delays- sometimes delays are unavoidable, however, they need to be minimized as much as possible. Delays in responding to requests for information, deposition dates and times and delays in paying fees associated with discovery can result in prolonged litigation, motions to compel, failure to obtain necessary information and in some extreme cases, evidence being stricken. The sooner information is provided, the sooner an issue may be resolved.
AWW/13 week wage statement – a significant amount of litigation occurs surrounding this issue. Often times this document is missing; or when provided frequently includes time periods outside of the 13 weeks, excludes fringe benefit information required even if not applicable at that time, and fails to have a signature of the individual who prepared it. If your employer does not know how to complete it, get payroll information necessary including fringe benefits (even if the claimant is still receiving them as it may be an issue in the future), and complete it yourself or ask defense counsel to help. Additionally, I see many cases where concurrent earnings only come up after litigation is filed. When they are completing the injury information, ask them about concurrent earnings.
Don’t limit yourself – forms of communication.
1. Sending mail via regular US mail versus certified mail/return receipt. I’ll admit… this is a pet peeve of mine. DO NOT send things certified mail/return receipt. There is a presumption in both federal and state law that an item that is properly addressed and mailed out was received by the individual it was mailed to. It is a difficult presumption to overcome. If you send something certified mail and/or return receipt which is not delivered, picked up, or received, that is proof the claimant/plaintiff did not receive the mail. Thus, by sending it certified mail and/or return receipt you are giving them the ability to prove they did not receive the mail. If you did not send it that way, you would be entitled to a presumption that the claimant did receive the mail and testimony alone is insufficient to overcome that presumption. I have had numerous cases recently were offers of light duty employment were sent to the Claimant but the Claimant argued he/she never received the offers. The method of mailing became the central argument in the case to prove or disprove knowledge of the job offer.
2. If you have multiple forms of contact information, make attempts in all forms. Don’t limit yourself to merely sending a letter, making a phone call, or sending an email. If you have multiple forms of contact make an attempt at least once with each form and document that attempt. Litigation can occur when an individual no longer has a certain phone number, or moved, failed to inform you of it, but had other valid methods still available which you are aware of. Although it seems logical a claimant should advise you when a form of communication is no longer available, this just doesn’t happen all the time. Because there may be other forms of communication which you are aware of that are still valid, it could prolong litigation if you do not attempt them as well.
Indemnity benefits/Claimant’s earnings post injury – don’t forget to send the informational letter when a Claimant is released to return to work. Failure to do so can act as an estoppel to certain defenses. Also, send out DWC-19’s and send them often. The statute limits the request to one per month. The courts at the JCC level have interpreted this to not mean one per month that the claimant was working but one per month at a time; meaning that if the Claimant has been working for several months and you did not send them you will be limited to sending one for the most recent month. To the same extent, if the claimant has returned to work for the employer, follow up with the employer to obtain earnings regularly to ensure the Claimant is earning at least 80% of his preinjury wage.
Who was authorized? Having a readily available list with who has been authorized, de-authorized, one time change, IME, etc. This will help cut down on any confusion regarding who has been authorized, and the time periods in which they were authorized. Many times there is litigation over who was authorized, who was de-authorized, what they were authorized for, timing of authorization and de-authorization, and payment of medical benefits associated with those providers. Having this information easily accessible in a list that can be provided to either defense counsel or claimant’s attorney can potentially reduce cost of litigation and avoid depositions in certain circumstances.
Again this is not an exhaustive list of small things that can lead to litigation but are the most common ones that I have seen. If you have any questions, suggestions, or comments… Please do not hesitate to contact me.