Michigan Occupational & Environmental Medicine Association Meeting. September 23, 2016 Traverse City, Michigan
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1 Michigan Occupational & Environmental Medicine Association Meeting September 23, 2016 Traverse City, Michigan IF THEIR MOTHERS ONLY KNEW HOW THEIR MINDS WORKED: DECONSTRUCTING LAWYERS STRATEGIES FOR PROSECUTING & DEFENDING WORKERS COMP CLAIMS, AND MUCH MUCH MORE Presented by: Themis J. Fotieo, JD Leonard M. Hickey, JD Reamon Fotieo & House PC Hickey Combs PLC 934 Scribner Avenue NW 3358 Eagle Run Dr,. NE, Ste. 100 Grand Rapids, MI Grand Rapids, MI (616) (616)
2 HYPOTHETICAL FACTUAL SCENARIO 63-year-old, right-handed male: 40-year 1.5 per pack day smoking history Date of hire: 03/19/12 Job: Maintenance in transmission and differential rebuild plant
3 HYPOTHETICAL FACTUAL SCENARIO Prior right shoulder problems 01/04/11 - MRI showed a full thickness rotator cuff care 02/17/11 right shoulder surgery Prior left shoulder symptoms, onset, 2012, not claimed as work related Injured right shoulder at work on 09/11/14 carrying a heavy grate which got caught on uneven concrete floor.
4 HYPOTHETICAL FACTUAL SCENARIO Injury reporting Inconsistency from claimant on whether injury occurred on 09/09/14 or 09/11/14 Claimant had previously told a coworker that he had messed up his shoulder while taking down and preparing his swimming pool for winter storage the weekend of September 6-7, 2014 Claimant alleges he timely reported the injury to his maintenance coworker (a first responder)
5 HYPOTHETICAL FACTUAL SCENARIO Injury reporting The coworker disputed that claimant reported a right shoulder injury to him. There is no contemporaneous documentation of a timely injury report. Claimant contacted Human Resources on 10/14/14 and reported the right shoulder injury.
6 HYPOTHETICAL FACTUAL SCENARIO Claimant did not treat with the employer s occupational medicine provider Claimant saw PCP for prescheduled appointment the day after the injury and did NOT mention it.
7 HYPOTHETICAL FACTUAL SCENARIO Claimant previously mentioned he was planning to retire in August of /21/14 MRI showed recurrent tear of right rotator cuff, severe, AC joint arthritis, and irregular labrum, suggestive of a labral tear Claimant eventually sought out treatment on his own with his previous treating orthopedic surgeon, Dr. Hedlund.
8 HYPOTHETICAL FACTUAL SCENARIO 10/06/14 - arthroscopic surgery repair of a split tear of the right rotator cuff; no labral pathology found 01/14/15 - arthroscopic left shoulder surgery; rotator cuff repair, Mumford procedure, and acromioplasty When claimant s coworker joined the maintenance department in September 2013 there was a substantial reduction in the number of service requests completed and quality of work by claimant
9 HYPOTHETICAL FACTUAL SCENARIO Claimant s restrictions were accommodated with a move to a different location to photograph pictures of parts for online sales. Claimant walked off the job after three days. Claimant underwent an IME at the request of the claims administrator by an orthopedic surgeon, James Wessinger, MD, on 04/09/15: Claimant had a good recovery post-right shoulder surgery, was at MMI in regard to that surgery and his injury, and hecould return to full unrestricted work for the right shoulder.
10 HYPOTHETICAL FACTUAL SCENARIO Claimant s attorney arranged for claimant to undergo a functional capacity evaluation on 01/28/16. Ongoing deficits in shoulder range of motion and strength were noted. The therapist limited claimant to light level of work as defined the Dictionary of Occupational Titles. Dr. Hedlund did not document ongoing impairment of right shoulder after commencing treatment of left shoulder. Early onset of dementia impaired claimant s recall of events?
11 DEFINITIONS Plaintiff injured worker who has commenced litigation, seeking workers compensation benefits. Plaintiff s attorney the attorney representing the injured worker. Defendant(s) the employer and/or insurer. Defense attorney the attorney representing the defendant(s).
12 HOW LAWYERS GET BUSINESS Plaintiff s Attorneys Former clients. Other lawyers. Medical providers. Unions. Support groups, e.g.: TBI Support Group. Thin Blue Line. Advertising. Publications. Seminars.
13 HOW LAWYERS GET BUSINESS Defense Lawyers Law firm. Business development/marketing. Employer, insurer, TPA, agent and/or broker referrals. Other lawyers. Vendors. Networking and relationship building. Publications/Articles. Seminars.
14 HOW LAWYERS GET PAID Plaintiff s Attorney Statutory fee schedule. Reimbursement of costs and expenses. Fee on recovery of medical bills. Voluntary payment. Redemption. Appeal. Ancillary claims. Social security disability. Unemployment benefits. Third party personal injury claim. ERISA.
15 HOW LAWYERS GET PAID Defense Attorney Hourly rate. Flat fee. Reimbursement of costs and expenses. Billing and payment frequency. Bill reviews. Free advice.
16 INITIAL CLAIM EVALUATIONS Plaintiff s Attorney Screening. Telephonic or in person meeting. Elicit facts. Medical records. Analyze merits of case. Analyze potential recovery. Analyze cost to prosecute case. Analyze negative aspects of case. Cost vs. recovery analysis. Need to take case to please referral source.
17 INITIAL CLAIM EVALUATIONS Defense Attorney Pre-filing involvement/consultation. Post-filing & retention. Factual development. Employment and wage records. Job duties. Employment history. Performance, disciplinary, and attendance issues. Factual defenses. Legal defenses. Medical defenses. Client handling and billing guidelines. Client reporting deadlines.
18 PLEADINGS Plaintiff s Attorney What to allege. How specific. Specific injuries; cumulative exposure; LDW/OD. Other wage replacement benefits. Unpaid medical bills. Closed or open claim. Include functional/psychological claim? Offer plaintiff for light duty work? Medical providers. Witnesses. Signature/attestation.
19 PLEADINGS Defense Attorney Appearance Responses. Affirmative defenses. Special defenses. Recoupment of overpayment. Multiple parties. Coverage issues.
20 PLEADINGS Scheduling Orders Recent development. Deadlines. Inconsistent enforcement. Potential sanctions.
21 DISCOVERY Plaintiff s Attorney Style: passive vs. aggressive. Interrogatories. Requests to admit. Medical records. Employment and wage records. Employer disclosure questionnaire. Co-workers.
22 Defense Attorney DISCOVERY Style: Aggressive vs. passive. Interrogatories. Requests to admit. Records subpoenas. Work history, qualifications and training disclosure. Job detail forms. Histories obtained by expert witnesses. Other investigation (see below).
23 EXPERT WITNESSES Plaintiff s Attorney Treating medical provider. Independent medical evaluation. Functional capacity evaluation. Wage earning capacity evaluation. Toxicologist. Defense Attorney Same as above. Work site analysis.
24 FACT WITNESSES Plaintiff s Attorney Client. Co-workers. Spouse and family members. Defense Attorney Supervisor/manager. Health and safety administrator. Human resources. Benefits. Claims professional. Co-workers. Private investigator.
25 INVESTIGATION Plaintiff s Attorney Same as fact witnesses. Pictures. Diagrams. Weights. Measurements. Employer communications.
26 INVESTIGATION Defense Attorney Same as fact witnesses. Prior claims. Background investigation. Social media investigation. Surveillance. Criminal history. Hunting and fishing licenses. Driving record. Informants.
27 ISSUES FOR TRIAL Plaintiff s Attorney Client memory. Client credibility. Injury. Notice & Claim. Occupational causation. Pre-existing condition vs. change in pathology. Medical impairment. Disability. Impairment in wage earning capacity. Transferable skills. Job search.
28 Defense Attorney ISSUES FOR TRIAL Credibility/character. Untimely reporting of injury or making claim. Inconsistent histories. Late onset of symptoms. Inconsistent physical complaints (location and nature). Secondary gain. Exaggeration of job duties. Causation Arising out of and in the course of employment Idiopathic fall Intentional & willful misconduct Social & recreational Disability. Impairment in wage earning capacity.
29 ALTERNATIVE DISPUTE RESOLUTION Settlement facilitation. Strategies. How to use it effectively to resolve cases. Types of settlement. Voluntary Payment Redemption Settlement Resignation and release.
30 UNIQUENESS OF WORKERS COMPENSATION Limited number of practitioners. Limited number of magistrates. Common medical experts. Common vocational experts. Better knowledge of adversary. Better knowledge of hearing officers. No fault system
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