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  1. #1
    Join Date
    Mar 2017
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    3

    Default If You Win at Trial, You Still Lose

    Hello. May I ask what the purpose of WC trial is? I mean, you spend over 15K-20 of your own money taking depositions, expenses, etc and for what. Even if you win at trial, basically this means you can "participate" in WC. However, any treatment, etc will still be denied and you have to continue fighting...DHO..SHO...3rd appeal..etc....
    What happens next....when is this over??? If they are not offering a settlement (or offering such a low amount to even consider)...how or when does this end. I will forever need treatment.....

  2. #2
    Join Date
    Feb 2007
    Location
    831 East Morehead St., Ste 355, Charlotte, NC 28202
    Posts
    3,744

    Default Re: If You Win at Trial, You Still Lose

    I don't understand why you think it would cost $15K + in litigation costs. The court reporter and transcript costs will be a few hundred dollars per witness. Expert witness fees can add up, but how many experts are you expecting to hire?

    One goes to hearing in order to resolve issues (by the hearing officer) that one cannot resolve through negotiation or other means.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  3. #3
    Join Date
    Oct 1971
    Posts
    4,988

    Default Re: If You Win at Trial, You Still Lose

    Quote Quoting desparate View Post
    Hello. May I ask what the purpose of WC trial is? I mean, you spend over 15K-20 of your own money taking depositions, expenses, etc and for what. Even if you win at trial, basically this means you can "participate" in WC. However, any treatment, etc will still be denied and you have to continue fighting...DHO..SHO...3rd appeal..etc....
    What happens next....when is this over??? If they are not offering a settlement (or offering such a low amount to even consider)...how or when does this end. I will forever need treatment.....
    This is exactly what happens when people are too stubborn to hire a lawyer, they have no idea of what they're doing or what to expect.
    If you had a lawyer, there would be no up front cost, you'd protect your rights, be money ahead plus know what to expect - it's your life, you decide.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  4. #4
    Join Date
    Apr 2012
    Location
    Ohio
    Posts
    124

    Default Re: If You Win at Trial, You Still Lose

    Quote Quoting tony View Post
    This is exactly what happens when people are too stubborn to hire a lawyer, they have no idea of what they're doing or what to expect.
    If you had a lawyer, there would be no up front cost, you'd protect your rights, be money ahead plus know what to expect - it's your life, you decide.

    Tony

    He/She didn't say if there was an attorney and sadly the costs are not that crazy. It could easily cost at least $5000 per expert, between the expert's deposition, court reporter and videographer fees. Plus you would need a report for the expert to be able to testify, and that would be at least $500, but depending on what part of the state or what facility the expert is with, this also could easily be over $1000. The real kicker is that the attorney also may have charged to try the case. Yes, I know this sounds preposterous with our field working only on contingency, but I have heard of workers' comp attorneys telling their clients they will only try a case if they are paid up front (as well as costs). I disagree with this but some attorneys I think do this in an attempt to convince clients to settle.

    But the bottom line, to answer the basic question - unfortunately trying cases in workers' comp just makes no sense for exactly the reason you are saying. Sadly, even if you "win" you don't get a monetary award and only get the ability to go back to workers' comp and request that treatment, temporary total, etc be approved. This is exactly why the attorney (if there was one) may have required the costs - because even if there is little risk at losing at trial there just isn't much to "get" from trial.

    The other question about when does this end - unfortunately also there is no real settlement or end date for Ohio workers' comp claims either. The statute of limitations (depending on when your injury happened) could be either 5 or 10 years from the last date of payment in the claim. So if you just had treatment approved and paid, it would be 5 or 10 years from that date, then if you have treatment approved and paid next month the statute would be 5 or 10 years from then - the statute changes as things are paid. But even if the claim is open there is no real "conclusion" or settlement like there would be in an auto accident case. In an auto case you ultimately have to either settle or go to trial - and at trial the jury gives a dollar amount to close the claim. Not the case with workers' comp. Settlement is not necessary or required as part of the end game. Ultimately the employer and/or BWC could continue to reject (or offer very little for) settlement. And if the statute of limitations passes without the case being settled, then the case is closed whether or not it was ever settled. Many cases just die out and never see a settlement - for multiple reasons.

    This system certainly isn't perfect or simple.
    Kristin A. Cool
    Ohio Workers' Compensation Attorney
    Practicing in Northeast Ohio, Central Ohio, and Mahoning Valley
    www.TheFriedmanLawFirm.com
    Workers' Compensation Blog

  5. #5
    Join Date
    Oct 1971
    Posts
    4,988

    Default Re: If You Win at Trial, You Still Lose

    Kristin Cool Esq.
    He/She didn't say if there was an attorney
    Correct, for that reason and by the above statements, it would be a fair assumption.
    A represented claimant would know what to expect and be aware of the info you've provided - They wouldn't be in a forum asking basic questions about the system or their claim.

    The real kicker is that the attorney also may have charged to try the case. Yes, I know this sounds preposterous with our field working only on contingency, but I have heard of workers' comp attorneys telling their clients they will only try a case if they are paid up front
    I would strongly advise against paying an attorney up front for anything, it's obviously excessive and a scam, the very idea is laughable -
    Attorneys are paid a percentage of benefits obtained on your behalf in litigation, there's no guarantee of results or attorney fees.
    Find a reputable attorney who will charge fees that comply with the rules of ethics and professional responsibility plus policies set forth by the BUREAU.

    VII. GUIDELINES FOR ATTORNEY REPRESENTATIVES OF INJURED WORKERS BEFORE THE INDUSTRIAL COMMISSION AND BUREAU OF WORKERS' COMPENSATION
    A. There shall be no attorney's fee charged unless services are rendered
    https://www.ic.ohio.gov/policies/res...s/r07_1_01.pdf

    Lawyer Ethics & Discipline
    Fees and employment
    Attorneys are not allowed to receive illegal payment (such as stolen property) or charge clearly excessive fees. To decide whether a fee is “clearly excessive,” the factors taken into account include the amount of time spent by the lawyer; difficulty of legal issues; customary fees in the area; the amount of money at stake and results obtained by the lawyer; experience and reputation of the attorney; and whether representation was on a contingent fee basis.
    https://www.ohiobar.org/public-resou...s--discipline/

    OHIO RULES OF PROFESSIONAL CONDUCT
    RULE 1.5: FEES AND EXPENSES
    (a) A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.
    https://www.law.cornell.edu/ethics/oh/code/OH_CODE.HTM

    But the bottom line, to answer the basic question - unfortunately trying cases in workers' comp just makes no sense for exactly the reason you are saying.
    Wait a minute, are you saying injured workers in Ohio should forfeit their claims, no matter the type or degree of injuries?
    If what you guys are saying is true, carriers in Ohio should deny every claim - What do they have to lose?
    After losing at trial and incurring costs plus possible penalties, that carrier might think twice before denying treatments or benefits in the future - seems like a win to me.

    One fact missing in this thread, if the claimant prevails in litigation he can recover costs plus attorney fees.
    Not sure about Ohio but some states allow penalties in addition to costs if the denial of benefits is found to be frivolous or without merit.
    Maybe I'm missing something but this is the way claims are handled in most states, carriers aren't free to terrorize claimants without accountability or penalties.

    Ohio's Supreme Court affirms payment of attorney fees under workers' compensation statute
    The Tenth District Court of Appeals held in the Hollar case that as long as the claimant was successful as to at least one of his or her claims, that the trial court does not abuse its discretion in awarding the claimant all of his or her costs. Based on such conflict, the issue was brought before the Ohio Supreme Court.
    The Ohio Supreme Court resolved that the language of R.C. 4123.512(F) does not require a claimant to be victorious on his our her entire appeal in order for him or her to be reimbursed for his or her costs, nor does it require a trial court to allocate costs between conditions that are lost or won. This decision may be a call for legislative revision.
    https://mcdonaldhopkins.com/Insights...sation-statute

    4123.512 Appeal to court.
    (F) The cost of any legal proceedings authorized by this section, including an attorney's fee to the claimant's attorney to be fixed by the trial judge, based upon the effort expended, in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the commission if the commission or the administrator rather than the employer contested the right of the claimant to participate in the fund. The attorney's fee shall not exceed five thousand dollars.
    http://codes.ohio.gov/orc/4123.512

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

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