Posted on Wednesday, December 5th, 2018 at 8:23 am
The following post is part of our Law Student Blog Writing Project, and is authored by Joe Trammell, a 2020 Juris Doctorate Candidate at The Ohio State University Michael E. Moritz College of Law.
Attorneys have learned in law school to be honest, even if it may seem to put them at a disadvantage. It is always better to be truthful, and if there is a good case it won’t matter that some of the law or facts are not favorable.
So here is the concession: you do not have to hire a workers’ compensation attorney to receive workers’ compensation. You are legally allowed to file for it on your own.
That may seem like a strange way to start a blog post for a law firm that does workers’ compensation, but do not worry. The rest of the article will detail why in many cases you should hire a workers’ compensation attorney.
There is a reason why there are many law firms that deal with this area. Laws are complicated, and workers’ compensation laws are a great example of that. Attorneys go through three years of law school (if they go full-time and do not do a dual-degree program) learning how to interpret them. At Ohio State’s law school, it is one of the first things taught to new students, and the process never stops. Add to it the need to interpret the exact meanings of parts of laws through reading cases decided by courts, and it is a very complicated process.
This is also why criminal trials guarantee a right to counsel. The landmark Supreme Court case, Gideon v. Wainwright, decided this. Mr. Gideon was not given representation in a burglary case, and faced a prosecutor who was in the courtroom for a living. Mr. Gideon lost his case, but after he won his Supreme Court appeal, he was retried—this time with representation—and was acquitted. Nothing had changed in Mr. Gideon’s case. He just had someone that knew how to take the facts and ask the right questions.
Unfortunately, the government does not provide counsel for workers’ compensation. But the point to sharing this is to illustrate how difficult it can be for people to understand the law and advocate for their rights when they have not been trained. That is not an indication of anyone’s intelligence or abilities; it just means that law is a specialized field and requires specialized training, the same way a doctor or pharmacist needs specialized training.
When you receive representation for your claims, you gain the benefit of that attorney’s education and experience not only practicing law, but practicing that specific kind of law. This may be pretty new to you, but the attorney is used to it. He or she knows what the laws say, what strategies to implement and what arguments to make, how to provide proof for your case, how to file the necessary paperwork, and how to answer the questions that will be asked. This relieves the burden on you and puts it on the shoulders of someone who does this for a career.
How Can An Attorney Help Me Win an Ohio or Kentucky Workers’ Compensation Claim?
One complexity in workers’ compensation laws is the list of exempted employees. Both Ohio and Kentucky cover most employees. But both exempt agriculture workers, domestic workers, and anyone who voluntarily rejects workers’ compensation coverage. Kentucky exempts nonprofit workers who make their living through the nonprofit, while Ohio exempts volunteer nonprofit officers.
Another is the statute of limitations. Statutes of limitation prevent claims from being filed after a certain length of time has passed. In Kentucky, an employee has two years from the date of the injury to file for workers compensation (or, if the employer initially paid voluntarily and then stopped, two years from the last payment). In Ohio, it is only one year. But, if you were not keeping up on the law, you might think it is two years. The statute of limitations was changed to one year in 2017 after decades of being two. But, to further complicate, this change only applies to injuries and death from injuries. The statute of limitations for occupational diseases and death from occupational diseases remains two years.
Ohio also has something known as “subrogation,” which allows the Bureau of Workers’ Compensation to recover from the injured person being compensated if the injured person has recovered twice. An example of this would be if the person receives workers’ compensation and then sues the person responsible (which could not be his or her employer) and receives money from the lawsuit as well. The Bureau of Workers’ Compensation would be able to recover some of the money from the lawsuit. Kentucky has similar provisions, although subrogation is calculated very differently in the two states.
Kentucky has a specific law that allows coal miners suffering from Black Lung (which this author’s great-grandfather died from) to recover extra, although this law continues to fluctuate.
These examples demonstrate a portion of the complexities of workers’ compensation laws. There are many deadlines and forms to keep track of, and the laws continue to change. With the state elections taking place this year, the possibility remains strong that more changes are coming. It is possible for you to track this yourself, but attorneys have more experience dealing with these claims and better resources available to research and help with the case.
There are some situations in which an attorney is especially needed. One, representation is more needed when the employer does not cooperate. Perhaps the employer denies the claim, refuses to fully compensate you, or you are retaliated against. It can also help to have an attorney if there is something else complicating your claim, such as if you are receiving other government benefits or have a preexisting condition, or if your injury is serious and affects your work. It is also advisable to have an attorney with you when you have a workers’ compensation hearing.
If you are in this unfortunate situation or find yourself in it in the future, keep this in mind. You can go it alone, but it might be a more effective claim with some assistance from workers’ compensation attorneys.
Do you need help with a Workers’ Compensation claim? Call Lawrence & Associates and let one of our experienced attorneys help. We’re Working Hard for the Working Class, and we want to help you!