Workplace Injury Litigation

Authors: Todd McFarren & Glen J Grossman ISBN 10: 1-930056-12-5 ISBN 13: 978-1-930056-12-1 Copyright Date Ed: January 1, 2004 Pages: 510 Binding Information: Casebound Size: 6 ✕ 9 Inches (US) This text is designed to serve as an important resource for legal professionals involved in workplace injury law. It explores the most common types of injuries that occur in the workplace, guides you through the practice and procedure of workplace compensation law, and delves into the ethics and administration of the systems currently in place. The compensability of on-the-job injuries and death varies from state to state, many genuine injuries are subjective (i.e., with little or no physical evidence of damage), insurance companies can and do vigorously resist the payment of benefits, the bureaucracy of the appeals process can be a tangle . . . This volume provides ideas, analysis, techniques and appraisals of various workers' compensation issues for practitioners by practitioners. Editors McFarren and Grossman have gathered chapters from leading medical and legal experts in the field. Attorneys and judges--as well as healthcare providers, employers, insurance company representatives and vocational experts--will find new ideas, fresh perspectives and just plain good advice. This book is also available as an eBook. Click here to purchase and download: Topics covered include wrongful termination in workers' compensation deposing your opponent's medical experts ethical considerations for workers' compensation practitioners the bankrupt uninsured employer compensability of work-related heart attacks subjective disability the psychiatric injury occupational skin disorders when is an employee not covered spine injuries in the workplace concurrency and conflictcross-examinging the vocational expert taking the doctor's deposition: advice for attorneys and doctors. Table of Contents: Part 1. Types of Injuries 1. Compensability of Work-Related Heart Attacks 1.1 Introduction 1.2 Cardiotoxic Chemicals 1.3 Hazardous Work 1.4 The Range of Legal Rules 1.5 Heart Attacks Resulting from Physical Exertion at the Workplace 2. Occupational Injuries to the Hands and Arms 2.1 Introduction 2.2 Skeletal Structure of the Hand and Arm 2.3 Nerves of the Hand and Arm 2.4 Sensory Branches of the Nerves 2.5 Muscle and Tendon Injuries 2.6 Ligaments and Bursa 2.7 Common Tendon Injuries 2.8 Hand-Arm Vibration Syndrome 2.9 Carpal Tunnel Syndrome 2.10 Ergonomic Factors Affecting the Hand 2.11 Hand-Wrist Tendonitis 2.12 Occupational Dermatitis 3.The Psychiatric Injury 3.1 Introduction 3.2 The Interview 3.3 Developing Evidence 3.4 Obtaining Documents 3.5 Foreign Language Problems 3.6 Protecting the Injured Worker 3.7 Identifying and Measuring Disability 3.8 Conclusion 4. Analyzing a Spinal Injury Case 4.1 Introduction 4.2 Anatomy and Medical Terminology 4.3 Diagnostic Tests 4.4 Workers’ Compensation Benefits for Workers with Spine Injuries 4.5 Case Study 4.6 Conclusion 5. How to Analyze and Try the Knee-Injury Case 5.1 Introduction 5.2 Anatomy of the Knee 5.3 Common Knee Injuries and Diseases 5.4 The Knee-Injury Claim and the Law 5.5 Conclusion 6. Managing Chronic Pain: Getting the Dysfunctional Injured Worker Back to Work 6.1 Introduction 6.2 The Players and the Playing Field 6.3 From Initial Injury to Chronic Pain 6.4 Treatment and Rehabilitation for Acute Injuries 6.5 Summary 7. Subjective Disability 7.1 Introduction 7.2 What is Subjective Disability? 7.3 Assessing Subjective Disability 7.4 Self-Reporting of Pain 7.5 The Doctor’s Assessment of Subjective Disability 7.6 The Good Doctor: An Ideal Type 7.7 Presenting the Case 7.8 Conclusion 8. Occupational Skin Disorders 8.1 Introduction 8.2 Causation Issues 8.3 Examples 8.4 Conclusion   Part 2. Practice and Procedure 9. Cross-Examining the Vocational Expert 9.1 Introduction 9.2 Initial Preparation 9.3 Credentials 9.4 Formal Training and Experience 9.5 Bias 9.6 Tools of the Trade 9.7 Foundation for Opinion 9.8 Validation of Client’s Credibility 9.9 Evolution of Theme 9.10 Foundation—Familiarity with Employment Region 9.11 Job versus Occupational Classification 9.12 Expose Conflicts between Opinion and Tools of the Trade 9.13 Extrapolation from the Sublime to the Ridiculous 9.14 Computerized Programs 9.15 More Chinks in the Foundation 9.16 Questionable Methods 9.17 Are Those Jobs Smoke and Mirrors 9.18 Incomplete or Faulty Analysis 9.19 Independent Vocational Rehabilitation Vendors 9.20 Conclusion 10. Deposing Your Opponent’s Medical Expert 10.1 Introduction 10.2 Informational Depositions 10.3 Depositions to Enhance the Case or Attack the Opponent’s Case 10.4 Conclusion 11. Taking the Doctor’s Deposition: Advice for Attorneys and Doctors 11.1 Introduction 11.2 Advice for Attorneys 11.3 Advice for Physicians 11.4 Conclusion 12. The Bankrupt Uninsured Employer—Clarifying the Distinction between the Automatic Stay and the Statutory Discharge 12.1 Introduction 12.2 The Mysterious World of the Bankruptcy Court 12.3 Conclusion 13. Special Benefits for California Public Safety Employees 13.1 Introduction 13.2 Presumptions of Injury 13.3 Full Salary Benefits while Temporarily Totally Disabled 13.4 Public Safety Employee Disability Retirement 13.5 Judicial Review 14. Concurrency and Conflict 14.1 Introduction 14.2 Part I: Selected Statutes and Benefits 14.3 Part II: Longshore Interface with State Workers’ Compensation and Concurrency 14.4 Part III: Conflict of Laws in Workers’ Compensation 15. When Is an Employee Not Covered? When Is a Carrier Estopped to Deny Coverage? A Case Study 15.1 Introduction 15.2 Mr. Applicant Was an Insured Residential Employee 15.3 Estoppel 15.4 Scott Was Not Applicable 15.5 Conclusion 16. Wrongful Termination in Workers’ Compensation 16.1 Introduction 16.2 Elements of the Retaliatory Discharge Claim 16.3 Establishing the Employer’s Retaliatory Motive 16.4 Addressing Specific Defenses to the Retaliatory Discharge Action 16.5 Miscellaneous Issues 17. Representing Undocumented Workers 17.1 Introduction 17.2 Coverage for Undocumented Workers in a Few Jurisdictions 17.3 Typical Arguments against Coverage for Undocumented Workers 17.4 Questions Often Asked at Deposition 17.5 Conclusion   Part 3. Ethical and Administrative Issues 18. Ethical Considerations for Workers’ Compensation Practitioners 18.1 Preface 18.2 Hypotheticals 18.3 Rule 1.1—Competence 18.4 Rule 1.3—Diligence 18.5 Rule 1.4—Communication 18.6 Rule 1.5—Fees 18.7 Rule 1.6—Confidentiality of Information 18.8 Rule 1.7—Conflict of Interest: General Rule 18.9 Rule 1.8—Conflict of Interest: Prohibited Transactions 18.10 Rule 1.9—Conflict of Interest: Former Client 18.11 Rule 1.10—Imputed Disqualification General Rule 18.12 Rule 1.14—Client under a Disability 18.13 Rule 1.16—Declining or Terminating Representation 18.14 Rule 2.1—Advisor 18.15 Rule 2.2—Intermediary 18.16 Rule 3.1—Meritorious Claims and Contentions 18.17 Rule 3.2—Expediting Litigation 18.18 Rule 3.3—Candor toward the Tribunal 18.19 Rule 3.4—Fairness to Opposing Party and Counsel 18.20 Rule 3.5—Impartiality and Decorum of the Tribunal 18.21 Rule 3.6—Trial Publicity 18.22 Rule 3.7—Lawyer as Witness 18.23 Rule 3.9—Advocate in Nonadjudicative Proceedings 18.24 Rule 4.1—Truthfulness in Statements to Others 18.25 Rule 4.2—Communication with Person Represented by Counsel 18.26 Rule 4.3—Dealing with Unrepresented Person 18.27 Rule 4.4—Respect for Rights of Third Persons 18.28 Rule 5.1—Responsibilities of a Partner or Supervisory Lawyer 18.29 Rule 5.2—Responsibilities of a Subordinate Lawyer 18.30 Rule 5.3—Responsibilities Regarding Nonlawyer Assistants 18.31 Rule 5.4—Professional Independence of a Lawyer 18.32 Rule 5.5—Unauthorized Practice of Law 18.33 Rule 6.1—Voluntary Pro Bono Publico Service 18.34 Rule 7.1—Communications Concerning a Lawyer’s Services 18.35 Rule 7.2—Advertising 18.36 Rule 7.3—Direct Contact with Prospective Clients 18.37 Rule 7.4—Communication of Fields of Practice 18.38 Rule 8.3—Reporting Professional Misconduct 18.39 Rule 8.4—Misconduct Appendix A. Preamble to the Model Rules of Professional Conduct Appendix B. Common Representation Agreement 19. Exploring Legislative and Administrative Efforts to Reduce Litigation in the California Workers’ Compensation System 19.1 Introduction 19.2 The Early Years 19.3 Early Causes of Litigation in Workers’ Compensation 19.4 Remedies for Reducing Litigation 19.5 Did Any of These Remedies Achieve the Policy Goals of Reducing Litigation? 19.6 The Experience of Construction "Carve-Outs" in Reducing Litigation 19.7 From Statutes to Rules 19.8 Current Efforts to Reduce Litigation