Prior Unemployment Or Discrimination Claims Key To Work Comp Claim Defense

Defending a difficult workers compensation claim is a lot easier when you have information as soon as possible. Investigators have a role but it is not nearly as important as that of the employer, at least in the beginning.


A few examples can show the difference employer input can make.

Prior Unemployment Or Discrimination Claims Can Be Key To Work Comp Claim Defense


For example, there is no box on an employer’s report of a claim that asks if an unemployment or discrimination claim was filed, and few claims people will take the initiative to call an employer and ask. The workers comp claims unit can hardly be faulted, since the existence of such prior claims is not universal or even common. But if they do exist the employer will always be aware of them and can forward a copy of the final disposition to a carrier.


The disposition is not necessarily conclusive or relevant to a difficult work comp claim, but knowing a prior will greatly speed up an investigation and very often will be the key to a successful defense. Why; because people inevitably will make inconsistent statements when they file multiple claims. This is especially true where there is a prior unemployment or discrimination claim.

News of Prior Harassment Claim Leads to Victory on Work Comp Claim Defense


Example 1: A young night security guard alleged sexual harassment as the cause of her leaving. She specifically alleged that her co-workers had left a “dead body” outside her guard shack. She lost, but actually appealed to the courts, which gave an opinion that her leaving was solely due to poor job performance. (No mention of disability.)


She then filed a comp claim, not mentioning the prior harassment claim. A year after the comp claim was being tried on extent of disability, a new lawyer on the claim was stricken by the claimant’s bizarre behavior and called the employer, thus leaning of the discrimination claim. The published court decision won the comp claim, but only due to a lucky premonition by a lawyer. Normally, the comp claim would have been won by the worker.



Unemployment Claim Court Records Uncover Inconsistency


Example 2: A worker in a restaurant filed a back claim. The employer said he had been fired (no further details). But when the carrier asked for more details it was told that there had been an unemployment hearing which the worker lost.


The unemployment decision showed that he had been fired for not showing up to work one evening. At the unemployment hearing, the worker testified that he had been delayed by rainstorms that night. The employer did not appear and testify. There was no indication of an interpreter being needed.


At the comp hearing, the worker said he had to testify through an interpreter, since he did not know English. The unemployment hearing showed that he spoke English without a problem. And that a physical problem had no role in the firing.

Employers Should Add “See Attached” To Include Information on Prior Unemployment Or Discrimination Claims


These two examples are repeated hundreds and maybe even thousands of times per year in New York alone, but most are never discovered because the employer does not volunteer an explanation attached to the Employer’s Report of Injury.


Therefore, the employers have been lulled by a Board form which nowhere suggests that any claim might be exaggerated or falsified. How should the employer respond, since there is no box to check? Use the universal “see attached” in the box describing the injury. Put the explanation on a separate piece of paper which is attached to the employer’s report.


Every good result on a comp defense is based on quality information appearing in the file as soon as possible.




Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.


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