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The two claims in a personal injury accident

In a serious personal injury accident, the victim may have two claims. The first claim would be for workers’ compensation and that comes about if the injured party was working at the time of the accident. If there is yet another entity who was negligent, then there is the possibility of a second claim. However, that other entity cannot be the injured worker’s employer. Assuming that the employer is not the negligent party -that someone else is- there will be a claim in tort for personal injury. That case goes through the court system as opposed to the Division of Industrial Accidents.

These two claims go on simultaneously. At least most often they do. The workers’ compensation people, in the form of the insurer, have the right to determine the medical treatment of the employee. That can create a conflict and that can create problems for the worker, the injured worker.

Let me just give a bit of background. The workers’ compensation insurer will be subrogated to the right of the employee to make a claim for these tort benefits, these third party benefits as they are often called. You would think if they’re involved and invested in the claim against the third party, then there might be a coincidence or mutuality of interest that they would have with the injured worker. That would be a reasonable thought, but often times their medical providers are in the business of making sure that the employee returns to work. After all, their paymasters, the workers compensation insurer, want that. To return to work is an admirable and laudable goal, but it may not reflect the injured person’s actual medical situation.

The result is that there will be many places in the file, in the workers’ compensation file, where the medical reports and records are not as favorable to the third party case as you’d expect. Moreover, the worker’s compensation file, including the medical portion (actually, especially the medical portion), will be discoverable in the tort action to the delight of defense lawyers. Where the medical provider is unfavorable to the injured worker, my client, what do you do in that instance? The answer is the client can explain these unfriendly comments in a deposition. For example, the client can say that he or she was told to come in for an exam and it turned out to be five minutes. The client is free, in my view, to discuss what the workers’ comp. doctor said and did. Perhaps there was no history taken from the client. The client is free and, as we lawyers like to say, competent, to explain that the doctor was very dismissive.

As the employee’s lawyer in the third party action, in the tort action, I often hire my own experts to evaluate my client. Granted they’re not the treating physician, at least in the early stage of the case, but they could turn out to be treating physician. Whether they do or not, they will serve as a counter weight to that harsh and unfriendly medical view from the medical report in the workers’ compensation file. I do my level best to make sure that if something is not fair in the worker’s compensation file, it will be combatted. It should not be used to the detriment of the employee/client without the proper refutation.

Bottom line: There are devices or sources that the lawyer can and should use to deal with a bad medical report from an unfair workers’ compensation medical provider.In a serious personal injury accident, the victim may have two claims. The first claim would be for workers’ compensation and that comes about if the injured party was working at the time of the accident. If there is yet another entity who was negligent, then there is the possibility of a second claim. However, that other entity cannot be the injured worker’s employer. Assuming that the employer is not the negligent party -that someone else is- there will be a claim in tort for personal injury. That case goes through the court system as opposed to the Division of Industrial Accidents

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  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

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