FAQ: Do I need a lawyer to defend me in my workers’ compensation case?
No, you don’t necessarily need a lawyer to defend you in a workers’ compensation (“WC”) claim filed against you. Much depends upon the nature of the claim against you.
If you have WC insurance and one of your employees was injured in the course and scope of his or her employment (something a lawyer will define for and explain to you), your insurance carrier will appoint defense counsel to represent you if the claim can’t be resolved without litigation. There are very specific procedural rules that are strictly applied to carriers (and the employers they insure), plus there are complex Medical Treatment Guidelines (“MTG”) that often need to be addressed. Thus, I recommend that you take advantage of the defense counsel appointed. It’s provided under your policy, which has a “Duty to Defend” provision.
Similarly, if you have been served with a penalty notice from the WC Board’s Bureau of Compliance, you probably should not try to navigate the discussions alone. The Board basically takes a “Guilty Until Proven Innocent” approach, and the trend appears to be to collect information and documentation for the sole purpose of “justifying” huge penalties, even against tiny businesses. It doesn’t suggest any guilt when you hire an attorney and might actually give the Board some relief because the administrators will be more confident that they are dealing with someone who understands the nuances of worker classification and coverage requirements. One of the biggest mistakes I see on a regular basis is business owners relying solely on their accountants and Internal Revenue Service (“IRS”) classifications of workers, such as independent contractors. The New York State (“NYS”) Department of Labor (“DOL”) and NYS WC Board do not always align with the IRS, so the lawyer you didn’t pay for when you started hiring employees might be the one you have to pay a lot of money to negotiate a penalty resolution.
In short, you can always choose to go without counsel, but I do not recommend it when dealing with the WC Board.
NOTE: This post is a general overview of defending a workers compensation claim. It is not legal advice, and there is certainly no guarantee that any of the actions detailed above will generate a similar or specific result. Past success is never a guarantee of a future outcome. If you require information or advice applied to your unique situation, please contact an attorney.
Nance L. Schick, Esq. is an attorney, arbitrator, and mediator based in New York City. She is the founder of The Law Studio of Nance L. Schick. Her holistic, integrative approach draws from her experience as a human resources supervisor, as well as her legal and EEOC training. She is creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution: Seven Choices and Five Actions of a Master, and an award-winning entrepreneur, who has been acknowledged by the New York Economic Development Corporation/B-Labs (Best for NYC 2015 finalist), U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (2013 Pitch Competition finalist). Most recently, she was invited to serve as ICERM Representative to the United Nations and will attain her certificate in Ethno-Religious Conflict Mediation in March 2017.