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Birmingham Bar Association - Bulletin Fall 2017

Workers’ Compensation Law Michael P. McCready injury. A claims adjuster and/or respondent’s attorney are paid by an employer or insurance company and are adversarial to the interests of an injured worker. The OWCP employs claims examiners. A claims examiner is an adjuster and arbitrator rolled into one. The claims examiner deals directly with the injured worker like an adjuster. But the claims examiner also has the authority to determine compensability, benefits and ultimately the amount of the award. If you are unhappy with a decision of an OWCP claims examiner, your remedy is to file an appeal. In the statute which creates the federal workers’ compensation system, it explicitly states the system is meant to be non-adversarial. “The mission of the OWCP is to protect the interests of workers who are injured or become ill on the job, their families and their employers by making timely, appropriate and accurate decisions on claims, providing prompt payment of benefits and helping the injured worker return to gainful employment as early as is feasible.” State workers’ compensation systems typically have similar such platitudes. But, state workers’ compensation systems are premised on an adversarial model, with neutral adjudicators. The federal system is not, and thus, the dual role of claims examiner. As a practical matter, an injured federal worker is at the mercy of a claims examiner, with an appeal being the only remedy for a disagreement with their determination. Appeals are governed by rigid procedural rules and take a long time to be resolved. In the case of an adverse determination by a claims examiner, his or her decision is often the final word. Compound this with the fact that most injured federal employees proceed pro se and you can imagine the scale of the injustice. The vast number of injured federal workers either can’t afford to hire a federal worker’s compensation lawyer or don’t see the value in paying a lawyer a retainer. Although federal workers’ compensation law has many similarities to its state counterparts, the role of the injured worker’s attorney is quite different. The vast number of injured federal workers either can’t afford to hire a federal worker’s compensation lawyer or don’t see the value in paying a lawyer a retainer. Many potential clients are surprised we cannot charge a contingency fee and shocked that they have to pay an attorney themselves. In our practice, only one in ten injured federal employees who contact our office retain us for representation. If federal compensation lawyers were able to charge a contingency fee and have the check mailed to their office, that number would be closer to nine in ten. It’s a very sad system and it is heart-breaking to hear the stories of these workers. Too often, people come to us because they tried to appeal it on their own and now are losing their house because they have gone so long without any kind of a pay check. They finally borrow money from a relative so that we can help them and we are successful, but when they receive their back pay that they should have received all along, it is without interest or any kind of penalties. Also, they do not receive attorney’s fees back when they win. While the system is flawed and the workers’ are at a disadvantage, we are here to help them fight for what they deserve. These are people who got hurt doing their job. They should be compensated while they heal and for any permanent injury they suffer. These cases are often easily fixed with the help of an attorney and a doctor, but the claims examiner denies them and most people cannot fight them alone. If an injured federal worker contacts your office, you have a few choices. First, you can refer them to a lawyer who handles federal workers’ compensation, with the caveat, that they will need to pay a retainer; second, you can handle the case yourself, either with or without a retainer; or third, you can handle the matter pro bono. If you handle it yourself without a retainer, you may be handling it pro bono anyway for the reasons set forth above. But, injured federal workers deserve legal representation. If you ever have questions regarding federal compensation, feel free to contact our firm at www.federalcompensation. com. G injured federal workers deserve legal representation Michael P. McCready of McCready, Garcia & Leet can be reached at 10008 S. Western Ave., Chicago, IL 60643 or at Michael@McCreadyLaw.com and www.FederalCompensation.com an injured federal worker is at the mercy of a claims examiner 14 Birmingham Bar Association


Birmingham Bar Association - Bulletin Fall 2017
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