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Straight
Track #79
| Getting Back To The Business Of Your Rights
Robert J. Drummond
Hoey & Farina Attorney
1-888-425-1212
With our military on
full alert, and our country’s emergency services still attempting to remove
the victims and debris in New York and Washington, the topic I am writing about
pales in comparison.
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It seems that
we have all been surrounded by tragedy. However, we all need to get back
to the business of our lives and work, and this article will deal once
again with injuries on a more personal level.
We recently had
the opportunity to interview a railroader who decided not to retain
designated counsel after sustaining an injury. He was involved in an
accident in which the carrier was clearly responsible. In addition to not
retaining designated counsel, he followed the railroad’s advice on
medical care. After several years of litigation, he contacted us due to
his disappointment with the offer that the railroad made to settle his
case.
We have written
in the past about your union’s right to choose and recommend designated
legal counsel (Straight
Track #39 and Straight
Track #40). We have also discussed in the past the role of the
company doctor, a doctor selected by the claims department (Straight
Track #17). We have urged you to select independent medical
care and explained to you your rights concerning choosing your own
treating doctor (Straight
Track #23). What I am about to relate is another example of why
you should retain designated counsel and independent doctors.
Mr. Railroader,
an engineer, was injured on the job in a collision in the yard. He
sustained an injury to his neck, and immediately reported the accident.
The railroad immediately introduced him to the “nurse coordinator” to
“insure that he received proper medical care at the railroad’s
expense”. Who is the “nurse coordinator” and what is her role? She
may have many titles. She travels under the guise of a “managed care
professional”, "risk manager" or “coordinator of medical
benefits.” Your first questions should be why does your care need to be
“managed”, and why do your benefits need to be “coordinated”?
These questions were not asked by this railroader.
The answer is
that your medical care does not need to be managed by anyone other than
the competent medical professionals that you have a right to choose. In
addition, your medical benefits do not change simply because you have an
on the job injury. Your primary insurance coverage will be the first place
that this “coordinator” will look to for payment of your medical care
(Straight Track #35).
This is of course a benefit which you are already entitled to.
What then is
the purpose of this “manager-coordinator”? The purpose becomes clear
as this railroader continued to tell his story, complete with copies of
the depositions of the physicians that he was referred to. Although he had
an injury to his neck that did not improve with conservative treatment and
physical therapy, the doctor who was selected by the company never
requested that a MRI be performed. One and one-half years into his
treatment, absent this diagnostic test, this doctor could not find a
“legitimate” reason for his continued complaints of pain. This doctor
also testified in a deposition that the injured railroader was “not
motivated” to return to work, and possibly a “malingerer.” Obtaining
testimony like this is the real purpose for “managing and
coordinating” your care.
Knowing that
his pain was real, and now doubting the concern of the physician selected
by the company, he finally sought independent medical care. The physician
he saw was a general practitioner who immediately ordered a MRI. The MRI
revealed that he had a cervical disc herniation that was obviously the
cause of his continued pain. The physician then referred him to an
orthopedic surgeon for further treatment and care.
Where is this
injured railroader now? He is almost two years into his treatment with no
relief, he has lost two years of income, and has a team of doctors who
have testified that he is the “problem”, not that he suffers from a
problem. In addition, because the MRI was not performed at an early stage
of treatment, the railroad might now argue that the herniated disc could
have occurred well after the accident. The railroad has in fact
“coordinated and managed” its defenses in this case. This is why we
urge you to seek independent medical care.
You might ask
what does this have to do with designated counsel? I should begin by
stating that the firm that this railroader hired is a fine law firm with a
fine reputation. But they do not specialize in FELA litigation. If they
had, they would have known the “managed care provider” by name, and
could have urged the client to seek independent medical care at the
outset. Designated counsel have seen this scenario all too often.
Ultimately, however, the client must decide who will treat them, and a law
firm is not responsible for this decision.
Designated
counsel also have a relationship with your union that assists them in
gathering evidence at an early stage. In this case, the evidence on
liability was solidly in favor of the client. This made the “managed
care” defense even more critical to his case. In a case where liability
is more complicated, designated counsel’s relationship with your union
may be extremely important in preserving your rights.
Because of the
relationship of designated counsel has with your union, they have agreed
to provide you with representation for a contingent fee of 25% instead of
the 33 1/3% fee which will be charged to this railroader. Non-designated
counsel typically charge 33 1/3% if the case is settled without filing a
suit; 40% if a suit is filed and 50% on appeal. Your unions and designated
counsel have worked together to provide you with superior representation
at a lower cost to you.
This railroader
came to our office disappointed in the path that he followed. He did not
exercise his right to retain designated counsel, and his right to seek
independent medical care. As you can see, these “rights” are not just
abstractions, but practical tools to protect your interests. Please
don’t make your first visit to our firm begin with the phrase “I think
I should have come to see you first.”
Only you can protect your
interests from the beginning. We urge you to exercise your rights
immediately when injured at work by contacting Hoey &Farina, your designated
counsel at 1-888- 425-1212.
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