D.C. Maryland and Virginia medical malpractice, accidents and work injuries questions answered by D.C. injury attorneys.
Here are some of the questions people have when they first contact us about D.C., Maryland and Virginia medical malpractice, serious car accidents or workers compensation.
We try to provide as much information as we can based on our experience as medical malpractice lawyers in D.C., Maryland and Virginia and based on representing many hundreds of people who have been injured in accidents or at work in D.C., Maryland and Virginia.
Here are the basics:
Patients permanently injured by medical malpractice, or the families of patients killed because of medical negligence, when a hospital, HMO or healthcare corporation doesn't follow basic patient safety rules deserve justice - resources to help with the harms and losses due to the injuries or death of their loved one.
Drivers who don't follow the rules of the road, driving recklessly, driving drunk, speeding, and texting should be accountable for the harm they cause when their actions cause a car accident or wreck.
Workers hurt on the job deserve workers compensation benefits for lost wages, medical treatment and permanent injuries. If a worker is killed on the job, his family deserves workers compensation death benefits - to at least help with the financial loss of a loved one.
But since every person is unique, if you have questions or need information about an injury or death in your family, please contact us to talk it through. We'll talk to you, schedule a free initial meeting and give you all the information we can.
- Page 1
What is an "injury diary" and why should I keep one?
So, you've been hurt at work and you are the kind of person who relies on their physical abilities for employment. You do heavy lifting, bending, rotating your shoulders, squatting, and all manner of physical labor. Suddenly you have been placed on work restrictions, and been referred to physical therapy to teach your body, once again, how to operate. You may be frustrated, confused, and wondering how you are going to provide for your family with a torn rotator cuff, or an injured cervical spine.
With DC workers' comp it can be so easy to screw up your case simply because you don't know what your rights are, and you assume that the employer and the insurance company are going to take care of you. While this may, in some cases (not all) be true of your employer, they actually have very little influence over the insurance company.
The idea that your employer is in charge of your workers' comp case is a very common mistaken belief, so I will say it again. They actually have very little influence over the insurance company. The insurance company is a third-party company, and their job is administrate your claim.
If you are just getting started on your claim, it's best to heed this advice from the very start. If you have been working on your claim for awhile, it's never too late to get organized and be in charge of your case.
The first thing I would recommend is to:
1). Keep track of your benefits checks. The insurance company will try and do try regularly to trip you up with respect to your benefits. If you don't know exactly how much you are expecting to receive on your check and when you are expecting to receive it, you run the risk of falling directly into their trap because they will use the lack of careful records as an opportunity to skip your payment. Your workers' comp rate (benefits rate) is calculated by the last 26 weeks you got paid (the average) and multiplied by 2/3. In other words, your benefits rate is 2/3 of what you were getting paid before.
You can ask me for a sample of a payment tracking spreadsheet. I'm happy to send it to you - just email [email protected] with the subject line "Payment Tracking." You should be recording which dates are covered by the check, which day you expect to receive your check, and how much it should be. Also, keep your pay stubs in a file.
If you are a client of ours and your check comes more than three days late, let us know right away. Three days late is an inconvenience but three weeks late is a crisis. Don't wait to let us know.
If your check is more than 3 days late call us now to find out what we do about it.
The second thing I would recommend is to:
2). Keep a diary of your appointments with your treating physician. Nobody knows better than you what your treating physician told you, and most times medical records don't tell the whole story. Do not let the nurse case manager into the room with you and your doctor.
Every time you see your treating physician write down a)what he/she told you about your condition; b) what he/she told you about your prognosis; and c) how long he/she took you out of work.
Next, you should:
3). Make sure you have a disability note if you are out of work and requesting your office visit notes from the front desk at the doctor's office.
There is a significant difference between your disability note and your office visit notes, and you need both. The disability note (and all of your orders and referrals) tells how long you are out of work and what your doctor is requesting next for your treatment plan. The office visit notes, or progress notes, give a summary and overview of your visit and your treatment plan.
If you have been keeping an appointment diary, we want to see that too. The more we know about your medical treatment, the better job we can do at being your advocate. Clients of ours have the benefit of our twenty years of experience in handling workers' comp claims. If you have a serious work injury, call us today at 202-393-3320.
The last thing I would recommend, whether you are handling this on your own or have a workers comp attorney, is to draft a job description from the very beginning and bring it in to show your treating physician and remind him of the physical aspects of your job. Treating physicians see many patients during the day and may not remember the physicality of your job from month to month. Bring your job description with you every month, so that he or she can properly and accurately give you restrictions.
If you are feeling overwhelmed, and have a significant work injury give us a call today. All we do is help people with serious, life changing injuries, and if you call us today at 202-393-3320 you will speak with a real person who wants to hear your story.
And don't forget to order your FREE book on DC workers' compensation: Protect Your Rights, the Ultimate Guide to DC Workers' Compensation. Get the benefit of twenty years of our experience for no cost or obligation at all!
I've been scheduled for a formal hearing. What should I expect?
At Donahoe Kearney we go to bat for our workers' comp clients: which means if they are not getting the treatment and/or benefits they deserve, we will file for a formal hearing on their behalf.
The difference between an informal conference and a formal hearing is pretty simple: for an informal conference we are just meeting with a claims examiner who will help us to resolve our conflict with the other side. The claims examiner will issue a recommendation that is nonbinding, but may become final if both sides agree. This is unlikely, because the insurance company can reject the recommendation of the claims examiner for any reason and request a formal hearing instead.
There are very few situations we request informal conferences for - and never if our client is not getting paid.
A formal hearing is a condensed, on the record trial where you file exhibits, call witnesses and make opening statements and closing arguments. The decision from the formal hearing is binding, but can be appealed. If handling a case yourself, you'll also have to understand all the ins and the outs of the process (discovery, medical records, exhibits, procedure) but we take care of all of the legal issues for our injured worker clients and we DO communicate with our clients on what to expect. Here's an example of a letter that we send to our clients when we have filed for formal hearing:
I just wanted to let you know we requested a Formal Hearing in your case to get you the workers' comp benefits the insurance company has denied (or delayed). We take this seriously and are aggressive about this approach - if the insurance company isn't doing what we think they should for you, we take them to court.
There is nothing you need to do right now, but here's what you can expect:
- You will receive a Scheduling Order in a few weeks with the date of the Formal Hearing and a lot of other dates leading up to it. Put the Formal Hearing date on your calendar and plan to be there, but don't worry about the other dates in the Scheduling Order - we take care of all of that.
- We get the Scheduling Order as well, and we'll call or email you to make sure you got it.
- We will thoroughly prepare you for the hearing and contact you to schedule meetings with Mr. Kearney as we get closer to the hearing date.
- Unfortunately, there is nothing we can do to move up the hearing date - these are being set about 4 months from the time we request the hearing. Sometimes these are re-scheduled because of conflicts with the lawyers' schedules, the judge, etc., but only by a week or so.
- We keep talking to the insurance company lawyers, to try to get them to provide the benefits before we ever have to go to the hearing, so rest assured we are doing everything we can to speed up the process.
- We'll be working on your case a lot between now and the hearing - be sure to keep us updated on your condition and medical treatment, like always, becasue we will probably need more frequent updates.
And if anything changes, we will let you know as soon as we hear.
Finally, hang in there - we know it is a difficult and unfair system that favors insurance companies. But we will do everything we can for you.
Have you been given the run-around by the insurance company? Have they stopped, or delayed paying your workers comp benefits or medical treatment? You may need to file a formal hearing and for most people we don't recommend doing this one your own (some can, if the case is small and/or straightforward). Give us a call today at 202-393-3320 to see if we might be the right firm for you. The call is free and confidential, so you have nothing to lose. Give us a call today to speak to a real person who wants to hear your story.
What's Different About Getting Medical Treatment on Workers' Comp?
If you were injured at work and are receving benefits, you may be getting treatment for the first time and feel confused about all of the differences between just getting medical care and getting medical care when you're on workers comp.
Here are some basics about getting medical treatment after a work injury.
First of all, your treatment requires authorizations and all of your providers (there may be one or several) will need to have the authorizations to treat you in their records. They have to carry the authorizations so they have the authority to bill workers' 'comp. When scheduling your treatment, you may need to be prepared for extra administrative measures, evaluations, and paperwork that you might not have to deal with when using your regular insurance. Give yourself a little extra time before your first appointment wth a new provider to make space for these types of tasks. And call ahead of time to make sure that the office has indeed received the auhorizations from your workers' comp adjuster.
Second, when you are seeing your treating physician (not your physical therapist or occupational therapist) you will need to get a disability note from him or her whenever you see them. This disability note, which says whether or not you can return to work (or return to work with restrictions) will be the piece of paper that triggers whether or not you keep receiving financial benefits while you are out of work.
Look at your slip before you leave the office and make sure it says what the doctor said to you. Doctor's offices sometimes make clerical errors so you want to make sure that the paperwork matches what you discussed with your doctor. And don't leave the office without it in your hand!
You also need to make sure that you have received all of your referrals from your treating physican to see other doctors related to your treatment. Typically the doctor will give you an order that states that type of treatment he would like you to seek - like physical therapy, and MRI, or a referral to a specialist..
The referrals have to match the type of treatment exactly. For example, if the referral says "physical therapy" and you want to get "aqua therapy," you will have to get an order specifically for aqua therapy.
Third, you need to make sure you have all of your office visit notes from your treating physician, and reports from any surgeries and special treatment. We recommend that you keep a copy of all of your own records, but for our clients we order and keep track of all of the records associated with their treatment and we seek authorizations on their behalf.
These records, especially from your treating physician, are the trail of paperwork that we use to show continuity of care and continuation of treatment, so you will also want to make sure that your visit notes reflect everything that you talked about with your doctor. Sometimes doctors offices inadvertently leave in visit notes things that don't correspond with the doctor's orders, such as "claimant can go back to work," when the doctor actually put you out of work for another month. These mistakes are not fatal, you just need to call the doctor and ask them to correct the visit notes. Sometimes your adjuster will want to see your visit reports, so you want to make sure they are accurate.
If you have a new workers' comp claim and are just getting started, you will absolutely need to order our free book "Protect Your Rights - the Ultimate Guide to DC Workers' Compensation." This book, written by premier workers' comp attorney Frank R. Kearney, gives you insight into what you need to know about DC workers' comp. And if you have further questions don't hesitate to give us a call at 202-393-3320. You will speak with a real person today who can get you started.
If I file for workers' comp will it ruin my relationship with my employer?
You may not be sure what to expect when you file a workers' comp case with your employer after getting injured on the job. You may be nervous because the workers' comp system seems very adversarial against the injured worker (it is). You may not be sure what filing would mean for your relationship with your employer. Does that mean that your boss is upset at you for filing? Did this mean that you may be putting your job in jeopardy?
We counsel people on this all the time: your employer can't legally fire you because you are hurt on the job or on workers' comp. The relationship can seem confusing because you have to separate the employer from the workers' comp insurance company - and that's what we do.
We only deal with the insurance company, so we don't affect your relationship with your employer.
And while your boss and company may very well may be on your side (they may be totally in your corner) the decision isn't always up to them - they usually have a Fortune 500 insurance company providing the workers' comp benefits and making a lot of the decisions - the workers' comp insurance company calls the shots.
Do you think the workers' comp insurance company has your best interest in mind?
It is actually their duty (to their corporate shareholders) to undermine your case and limit your benefits - the less they pay you the more money they make.
Here is what you can be sure of:
1). Legally, your job is safe if you are on workers' comp: that doesn't mean that illegal firings don't happen, but in our experience they are rare. But, if you are let go due to a workers' comp claim you have grounds for an unlawful termination lawsuit.
Keep in mind, however, that if you are employed "at will" you can still be terminated for any legal reason - and let's face it, it's pretty easy for companies to come up with excuses on this these days. As long as you can't work in your regular job because of your injury, you should still get workers' comp benefits.
2). If you've been released to light duty and your employer offers you light duty within your restrictions, you have to try and take it. If you take it and you still can't do the work because of your injury, you should go back to the doctor and get certified that you cannot regular duty, or light duty. You may need to ask your doctor to write certain specifications into your disability note such as "cannot lift more than ten pounds" or "cannot sit for more than two hours at a time."
Remember, that your doctor may or may not have experience with workers' comp so you need to be your own advocate and ask directly for what you need.
3). You will need to do everything you can to get better before returning to work. This means sticking to your medical treatment and not trying to go back to work before you are ready (or your injury could worsen). This may mean vocational training if there is no light duty available for you. This may mean looking for your own work and reporting back on your search.
Some people have a very hard time adjusting to the idea that they may not be able to go back to work in the same capacity or at all. This is a very difficult transition that needs to be made sometimes, depending on the extent of your injury. But we can help you through it; we will help you understand the nature of your medical treatment plan, your vocational future, and your settlement options. A lot of this information and more can be found in the exclusive book written by nationally certified trial lawyer Frank Kearney about workers' compensation: written only for injured workers.
If you have been seriously hurt at work you really cannot afford to miss this book so order your free copy today. No cost or obligation.
And if you have further questions call us today at 202-393-3320 to speak with a live person today.
What Are the Five Myths to Bust with My Workers' Comp Claim?
You have a new workers' compensation claim, and already you may be feeling overwhelmed at the number of things that you need to keep straight. You have to organize your correspondence from the Office of Workers' Compensation (OWC). You have to organize your correspondence from the workers comp insurance company. You have to organize your medical records. Before you know it you have a lot of paperwork and you're not even sure what it all means.
And then, something happens. The employer files a Notice of Controversion and tells you that they no longer intend on paying your benefits. They don't really give you much of a reason: maybe something like contesting the extent of your injuries or something similar. Maybe it is in legalese and you don't get it at all.
You are frustrated, confused, and feeling fearful that you won't be able to pay your regular bills, let alone your medical treatment bills. But, you don't want to try and call an attorney because you think that you cannot afford one; or you think that you can handle this on your own.
There are 5 common myths to debunk in a workers' compensation claim. Myth Number 1: you fear that you cannot afford an attorney. The truth is that you can. At Donahoe Kearney, we don't get paid unless you get a settlement. Our payment comes at the end of your case: which means that we will be working without getting paid for as long as it takes to settle your case. And we work hard to get you a substantial settlement.
Myth Number 2: I can do this one my own. Some cases can be done all on your own. We actually have a "Do It Yourself" kit that we send to people who have small cases with no real issues (their injury is minor and they are back to work after a week or two). But for the most part you will need an attorney in order to navigate your case properly. Workers' compensation law is complicated and can be arcane. The system often makes it easier to limit the financial exposure of an insurance company and that means paying un-represented workers less in benefits and medical treatment.
Myth Number 3: My adjuster and/or nurse case manager is on my side. The truth is that the insurance adjuster and the nurse case manager both work for the insurance company. The priority of the insurance company is to limit their financial loss; which means that no matter how nice your adjuster may be he/she will still be looking for ways to pay you less and limit your medical treatment: that is their job. And remember, they have an army of doctors, nurse case managers, supervisors, and lawyers working against you from the moment you get hurt.
Myth Number 4: My insurance adjuster chooses my treating physician. Nope, not in Washington, D.C. No matter what they tell you, you get to choose your own treating physician.
Myth Number 5: My employer might fire me if I challenge them on workers' compensation. Again, no. In Washington D.C. the employer cannot fire you in retaliation for filing a workers' compensation claim.
Now that these myths have been debunked: here it what you should do if you have a workers' compensation claim. Give us a call at 202-393-3320 to speak with an intake specialist today for no cost and no obligation. Don't wait too long before you contact us about your case: it's far easier to manage a case from the outset, before mistakes are made, than it is to get a case back on track. We can do both, but you and your family will be better off to have your case reviewed right away.
Finally, order the premier book on DC workers' compensation: Protect Your Rights: The Ultimate Guide to DC Workers' Compensation. This is the book the insurance company does not want you to read. Our clients read this book so they can be educated about the process. So go ahead and order yours today by clicking here.
What Happens if Another Company Causes My Injury at Work?
If you were injured on the job by a third-party contractor (that's just a fancy name for another company - one you don't work for, which is a reality in the District with third-party contractors being hired for all sorts of jobs) you may be wondering if you are entitled to both workers' comp benefits and be able to recover damages against the person or company that caused the accident or injuries. The answer, in short, is yes.
Contractors are not employees for your employer. They work for their own employer, and maybe they do a different job. A good example of a situation where contractors are employed is on a construction site.
Let's say you are plumber working for a plumbing company on an installation at a commercial construction site in D.C. Let's say a carpenter leaves a hole uncovered and unmarked and you fall into it; seriously injuring your knee and back. You should get workers' comp benefits because you were hurt on the job. But the carpenter's employer (the one who created the unsafe condition) was responsible. You have the right to hold that company accountable for the harm they caused you; and you don't need to choose between workers' comp and a case against this third party. You can do both.
That is how it works, and you see it all over the place in Washington, D.C. In the areas of construction and other job sites there is more opportunity for injury when contractors don't keep job sites safe. The risk of injury is higher with manual labor; more so than desk jobs. But even if you work a desk job, if you are hurt by someone who is not a co-worker, like a delivery person, or a car accident while you are driving to a work appointment, you have the same rights. If a person other than your employer was negligent and caused injury to you, they can be held personally liable, as well as liability extending to their employer.
Conversely, if you were injured due to the negligence of a fellow employee, you would only be able to recover workers' comp benefits. Workers' comp essentially covers that type of liability for your employer, so they cannot be sued.
At Donahoe Kearney, we've seen your situation many times and we have recently won a joint settlement for both workers' comp cases and a third-party liabilty case. If you have been injured on the job and you are wondering what might be your next steps, give us a call at 202-393-3320. You will speak to a real person today, for no cost and no obligation.
Or, email us at [email protected] and we will send you THE book on D.C. workers' compensation: the book the workers' comp insurance company does not want you to read! Protect Your Rights: The Ultimate Guide to D.C. Workers' Compensation, now in it's 3rd Edition is THE premier book on the workers' compensation ins and outs in the District of Columbia. You won't want to navigate a workers' comp case without it! The best part is it's free to anybody who calls or emails our offices to request one.
What If My Doctor Recommends Surgery But the Insurance Company Says It's Not Necessary?
You may have seen in this profile that the insurance company doesn't always go according to the recommendation of your treating physician. In fact, in E.P.'s story you can see that he had to have two surgeries because the first one resulted in a serious condition called "frozen shoulder" and he struggled to get the second surgery authorized.
If the insurance company is refusing to authorize the recommendation of your treating physician, you should call an attorney. Often times the insurance company will hire their own doctor to examine you, who is paid by them and will most of the time find in favor of them. They call this exam an Independent Medical Examination, or IME.
We call it what it really is - an Insurance Medical Exam. You're not there for medical treatment and the doctor has no duty to you (most won't even talk to you - they'll say you just have to get the report from the workers' comp insurance company).
Sometimes the only way to get your treatment authorized is through filing for an informal conference (mediation) or a formal hearing. The informal conference is non-binding but might help to reconcile the differences between the two sides. If that doesn't work or for more serious adjudication issues, a formal hearing will result is a binding decision from an adjudication judge.
At Donahoe Kearney we use all of the process to your advantage: to pressure the insurance company to do the right thing, or have a judge order them to do the right thing.
There are no insurance company tactics, strategies, or tricks that we haven't seen (and we can see them coming and prepare you for them). We will do everything we can to make sure your treatment is authorized and that you are on the road to healing.
If you have been caught up in an IME battle or the workers' comp adjuster is denying or delaying your medical treatment after a serious work injury, give us a call at 202-393-3320 or email us at [email protected]. You'll speak to a real person today: no obligation and completely confidential
I Have a Serious Injury. What Is The Best Approach for My Pain Management?
A number of our clients with serious injuries at work or after a car crash ask about medical treatment and pain management. We help them get the treatment they need authorized and paid for by the responsible insurance company.
If you have a serious injury related to an auto or work accident, you may be looking at pain management options. Studies show that physicians are still prescribing painkillers for up to 40 percent of cases, and if you have chronic pain that might be the best route for you.
However, prescription pain meds carry a high risk of addiction and you may want to try a variety of other methods first to find out if your body will respond.
First, there is the old faithful: take an anti-inflammatory, rest and apply heat. If the body has been over-exerted it may just need time to repair itself. Give yourself the time and space to do so.
There are also topical treatments that might help to alleviate your pain, such as products like Mineral Ice and Biofreeze. Other methods designed to go straight to the source of the problem (for example, an injured knee or spine) could include epidural (steriod) injections, trigger-point (local anesthetic) injections, and acupuncture. These injections usually come in series' and can alleviate pain by dealing directly with the injured part of the body.
Another avenue a doctor might prescribe is a compound topical cream to use as a pain reliever. These compounds (created at the pharmacy) can be applied directly to the site of injury and don't have to travel through the bloodstream, which can lessen the risk of addiction over time.
Finally, for very serious injuries, like a torn rotator cuff, surgery might be the best option. Often times the pain management specialist will experiment to see if you respond to other types of treatment before recommending surgery.
Every case is different and your pain management path your own. At Donahoe Kearney we are not doctors, but we have been a part of the process for more than twenty years and have worked with doctors all over the DMV. We assist our clients with finding the best provider for their case and then making sure that treatment is approved and paid for.
If you have a serious injury and have questions about your treatment, give us a call today at 202-393-3320. You will speak with a live person who will try to get you the best information for your injury case; at no cost and no obligation.
What if it has Been More than Two Years Since my Injury? Am I still Eligible for Benefits?
Workers Comp Deadlines
The amount of time between the injury and the deadline to file your workers' compensation claim is called the statute of limitations and it varies from state to state.
Here are the basics for the time to file a workers comp claim in DC, Virginia and Maryland:
In D.C. you have one year from the time you became aware (or should have) of the injury at work (or if it is a disease, the time you became aware of the disease being related to your employment). But there are lots of exceptions to this - it doesn't mean you are out of the workes comp system if you haven't filed the right forms in time. We have helped many people who came to us years after their injury.
In Virginia, you have two years from the date of injury to file with the Virginia Workers Compensation Commission, and in Maryland you need to report he injury to the employer and then file your claim with the Maryland Workers Compensation Commission within two years. In Maryland, a workers comp insurance company is not supposed to pay workers comp benefits until a claim is filed, and they will usually send the claim form to you.
Be careful here - filing in the wrong state could cost you hundreds of dollars every week. A 10 minute call with us could save you the heartache of this mistake (and workers comp insurance companies know the benefit rates are lower in Maryland and Virginia - they will encourage you to file your workers comp claim there instead of in D.C.)
Most of all, remember - there may be exceptions to the general rules here - don't just assume that you can't file a workers comp claim and be careful which jurisdiction you file in - the benefits you may be able to get are very different depending on where your workers comp claim is filed.
Call us at (202) 393-3320 for a 10 minute phone call that could prevent you and your family from making a devastating financial mistake with your workers comp case!
Can My Employer Fire me While I am Out on Workers' Compensation ?
Most states, including DC, VA, and MD, have provisions that your employer cannot fire you in response to protected behavior such as filing of a workers' compensation claim (called retaliation). But that is rarely the issue.
However, your employer can fire you while you have an open workers' compensation claim for any legal reason if you are an at will employee (union workers may have protections through their union). Sometimes employers say they need to fill your position, and with a serious injury you may not be able to return to your job because you can no longer physically perform the work. Your doctor may have restricted you from lifting, bending, standing, reaching overhead, and other work activities.
Just because your company terminates your employment doesn't mean your workers comp case is over. In fact, it has very little to do with workers comp. The workers comp insurance company will still have to pay your workers comp benefits and medical treatment while you cannot work because of your injuries.
The effect of termination on your workers comp case is often a complicated issue and can affect settlement and other issues - so if you're in that situation, give us a call to see if we can help you take care of your case and your future (202) 393 - 3320.