The Blog

Can I change lawyers if I’m not happy with my current lawyer?

Yes! You have the right to change lawyers just like you have the right to change doctors if you are not satisfied with their services. You should hold any professional that you hire to the highest standards and, make sure they are responsive to your needs. Discharging a lawyer might be complicated by whether or not your current attorney is receiving a fee. If he is, your current attorney is entitled to continue receiving a fee from your benefits until there is new litigation in your case or, your new attorney is able to settle the case. This means that the new attorney that you hire might be working for free for a while until new litigation starts in your case or, until it settles. This situation might also be complicated by any settlement offers that your old lawyer might have gotten you before he was discharged. Technically, if the old lawyer was able to get you a settlement offer before he was discharged, then the old lawyer attorney is entitled to 20% of that amount as his fee, regardless of whether new litigation has started.

Most lawyers do not like to take clients from other lawyers. Because of this, you will likely encounter some reservation on the part of the new lawyer to taking over your file. Typically, the new attorney will recommend that you try to resolve your differences with the old lawyer, even if that means having you go to the old lawyer’s office for an unscheduled meeting. The new attorney will often times call the old lawyer to let him know that one of his clients is attorney shopping and, to suggest that he call the client to try and resolve their differences. But, if the client truly feels the differences with the old lawyer are irreconcilable, most lawyers will suggest that the client terminate the old lawyer’s services in writing, and then agree to get involved in the case.  The new attorney will then try to resolve any fee issues with the old lawyer and, agree to protect the old lawyer’s litigation costs.

Communication between the client and the lawyer is really the key to a good, mutually beneficial relationship. But, you should remember that your attorney has other clients who need him as much as you do, so you must be willing to share his time.

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Am I entitled to workers’ compensation benefits if my work didn’t cause my condition but, it aggravated or made my condition worse?

Yes! An aggravation of a pre-existing condition is treated the same as a new injury under the Pa WC Act. In other words, whether your injury is new, such as a fall causing a fracture of your wrist or, is an aggravation of a pre-existing condition, like arthritis in your wrist that wasn’t causing any problems until you fell at work, both scenarios are considered compensable work injuries under the Act. The Pa WC Act follows the long-standing principal of law of the “ eggshell plaintiff.” This means that you take the plaintiff or injured worker as they were immediately before their accident and, if the accident worsened the condition that they had before the accident, that worsening is attributable to the accident.

Don’t let anyone tell you that you’re not entitled to workers’ compensation benefits because you had a condition before the work injury if the work injury made that condition worse. You’re entitled to workers’ compensation benefits if your work or, an incident/accident at work made a prior physical or mental condition worse.        

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Can I refuse surgery and treat my injury conservatively, if I choose?

Yes, but this decision comes with some risk. Section 306 (f.1)(8) of the Pa WC Act says that if an injured worker refuses reasonable medical treatment, the worker forfeits all rights to compensation for any injury or, any increase in the worker’s disability which results from the refusal. The Act allows the Employer to file a Suspension Petition (or, a Muse Petition as it is often times referred to because of the seminal case of Muse v. WCAB (Western Electric Co.), 522 A.2d 533 (Pa. 1987) which established the burden of proof in these cases) seeking to stop or suspend compensation until the injured worker undergoes the treatment at issue. The burden is on the Employer when a Suspension/Muse Petition is filed for refusal to undergo reasonable medical treatment to prove that the treatment would have decreased the worker’s disability and, increased their earning power before a forfeiture or suspension of wage loss benefits will be ordered. Specifically, when determining whether treatment is “reasonable” for purposes of a Suspension/Muse Petition, the Employer must show that the recommended treatment has a high probability of success and, that there are minimal risks involved with the treatment. In other words, if the Employer can show that the treatment being refused has minimal risk but that it will likely make the injured worker more employable, a forfeiture or suspension of wage loss benefits will be granted. We usually see these petitions in the context of surgery though they apply to any treatment that fits within the Muse requirements. Typically, the IME doctor recommends that the injured worker undergo surgery as opposed to continuing with conservative care, and the worker has some reservation about having surgery. The injured worker will need to present medical evidence as to why their refusal to undergo surgery is reasonable in order to combat a Suspension/Muse Petition. The risker the procedure (e.g., back surgery) and a less than 50% probability of making the worker more employable will likely defeat any petition to force the worker to undergo a specific form of treatment.

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