One Question Separates Good Workers’ Comp Attorneys from Bad

What to ask when you need a lawyer for your case

Imagine you’re planning to sell your home. The realtor you’ve chosen has a good track record and makes your posting without fault. But then, the offers start coming in, and they’re lower than your asking price. A realtor who’s working in your best interests will advise you to wait a bit longer, until a higher offer comes in. Others will simply ask you to accept the highest bid and move on. This is not unlike attorneys in workers’ comp: Some operate on a volume basis—looking to settle with insurers quickly so they can take on the next case. It’s a business model that is successful for their finances, but not their clients.

What you want to find is an attorney willing to put up a fight.

There’s a simple way to do that, says Minnesota workers’ comp attorney Tom Atkinson: “You want to ask them, ‘How many cases have you taken to hearing in the past year? How many times have you appeared before the workers’ compensation court of appeals?’ And ask for the names of cases, to call their bluff. You want people who are willing to try cases, because then they’re willing to take time and put money into your case.”

Workers’ Comp is an Adversarial Process

If you’re on the fence about calling an attorney, there are a few things you should know. The first is that your employer and their insurance probably aren’t looking out for you, and may rely on your lack of knowledge and vulnerability.

“When you have a work injury, it’s an adversarial claim against the person who pays your paycheck, so you don’t want to make any waves or rock any boats,” Atkinson says. “So, early on, usually an injured worker wants to get better and return to work, so is trusting and compliant.”

And Atkinson should know; he used to work on the other side.

“Half the insurance companies in Minnesota have staff lawyers, and I was one of them. What happens when a new claim comes in,” he says, “if the adjustor has any questions, they would roundtable with us and talk about the case. They’re getting legal advice while the injured worker often doesn’t.”

Getting a Lawyer is Free

The biggest reason people don’t call an attorney is fears about the cost. In workers’ comp, however, the attorney’s fees are covered by your employer’s insurance when you win or settle. If the attorney you’re talking to asks for a retainer, that’s a red flag.

Other than inquiring about their experience as you search for a reputable attorney, Atkinson also recommends you talk to at least a couple of them. This is a big decision, not unlike a large purchase or choosing a doctor, so you want to compare services.

When you call, Atkinson says, “we’ll tell you what work comp is, give you a little primer of what to expect and the red flags to look out for.” Not every firm will give you an initial consultation; some may ask specifically about your dispute and, if you don’t have one or they don’t think it’s significant enough, they may turn you away right then.

By contrast, some attorneys work with clients before a dispute on the claim occurs. “By being involved right away, we can troubleshoot things ahead of time and keep the insurance company honest longer,” Atkinson says.

Atkinson likens the field to a complex chess game. It takes skill, is difficult to master, and you have to think several steps ahead with each maneuver. However, there’s a perception among injured workers that they can learn the game on the fly and win. You might get lucky, sure, but the stakes are high: One slip up, and it’s check-mate.

“If your child or significant other is incapacitated and needs some emergency surgery, how do you feel when the surgeon comes in right after having cake because she just graduated from her residency program?” Atkinson says. “Meanwhile, across the hall is Dr. Susan, who has been doing it for 25 years and is an adjunct professor at the U. Who do you really want to operate? The same thing goes for work comp, because it affects your job, your health, and your life.”

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