Tag Archives: safety directors

Why Comp Claims Can Take Forever

Over the years, I’ve had safety directors or claims managers tell me that workers’ compensation claims move slower than a one-legged dog on tranquilizers. I would say the resolution speed of comp claims more closely resembles that of a three-legged dog on mild muscle relaxants – – but I won’t quibble over how far to take the metaphor.

Bottom line: Oftentimes, comp claims do move very slowly. Without dwelling on the obvious, let me suggest three legitimate reasons why comp claims aren’t yet as fast as text-messaging teenagers.

1. Litigation takes time

If you have pro se claims (where the claimant does not have an attorney), you’ve undoubtedly noticed that these claims are usually resolved very quickly. Why? You can insert you own joke, but you might consider the old one about how attorneys make good speed bumps. Having fewer attorneys involved removes obstacles and speeds the process. The absence of attorneys also means that there are likely no real issues to resolve. Everyone agrees on everything, so there is nothing to argue about.

In disputed claims, though, investigation takes time. Discovery takes time. Getting opinions from expert physicians takes time. Courts take time.

Years ago, I had a client tell me: “Brad, I don’t want you to settle any of our comp claims. Take them all to trial.” I did that. . . for a while. After two years of this (and after seeing the defense costs associated with taking every case to trial), the VP of claims called me and said: “Brad, can you start letting me know which claims can be resolved without trial?”

It doesn’t take a high level of skill to take every case to trial. It does, however, require skill to know which claims should be settled and which claims should be disputed.

2.  Movement takes willpower

Apart from falling down, movement takes willpower and initiative. A new client contacted me in June about taking over the defense of a claim that has been litigated since 2002. I entered my appearance, reviewed the medical records, called the claimant’s attorney and worked out a tentative framework for settlement with three or four phone calls.

I am certain that I am not any smarter than the defense attorney I replaced. Some would say he is far smarter – – he was paid to work a file for 12 years, and I was the dope who resolved it with a few phone calls! Self-serving attitudes aside, I had a fresh perspective and wasn’t afraid to throw out ideas to resolve the claim instead of simply throwing out ideas for continued litigation. In an area of the law where the work is often very repetitive, coming up with a new approach is often difficult.

3.  Common sense is mistaken

Common sense would seem to indicate that if the claimant’s attorney knows little about workers’ comp law, this places me (as the defense attorney) in a better position to achieve a favorable result for my client. In this instance, common sense is completely wrong.

I have always found that claimant’s attorneys who actually know what benefits are payable under the workers’ comp law and how to prosecute a workers’ comp claim are far better to work with than the attorneys who handle three comp claims a year and try to handle the claim like a jury trial in circuit court.

Knowledge and experience can bring efficiency to a system that rarely seems efficient.

An Old Trick That Reduces Workers' Comp Claim Costs

Let me assure you from the outset that this article has nothing to do with losing belly fat, curing diabetes with cinnamon or buying real estate with no money down. And, unlike other enticing articles that make you wade through 30 minutes before they tell you about that “one trick,” I’ll get right to it. The trick is: communicate with injured workers.

This is something that most workers' comp professionals have known for a long time: Generally speaking, injured workers don't call the TV plaintiff attorneys because they want more money — they call plaintiff attorneys to file a claim because the employer/carrier has not communicated about benefits claimants can expect to receive or how the workers' compensation process works.

I know this to be true because of what plaintiff attorneys tell me. When I have my first conversation with opposing counsel on a new claim, she will often say something along the following lines: “Brad, if your employer/carrier had just explained to my client what was going on, the claimant wouldn't have hired me to file a claim.”

Once the plaintiff attorney tells the claimant about his workers' compensation rights, the claimant then believes that he has “secret” information, and that creates a lack of trust toward the employer.

Listen, you can buy a kidney and find the schematics for a nuclear reactor online these days — and employers think that claimants can't find out about their workers' comp rights? I have one word for you: Google.

So, why do many employers and carriers insist on giving claimants the “mushroom treatment” (kept in the dark and covered with….fertilizer)?  I can think of three reasons.

First, many employers wrongly believe that communicating with the claimant about the workers' comp process will encourage more claimants to hire attorneys and file claims. While this may seem intuitively correct, it is empirically false. Claimants hire attorneys because of too little information, not too much.

Employers think: “If I have a safety meeting on what benefits injured workers receive when they file a comp claim, aren’t I just teaching them how to get more money out of the process?” Legitimate concern. But once an employer understands that the motive to hire an attorney and file a claim is more often driven by uncertainty rather than greed, this concern tends to diminish.

Second, workers' comp professionals (HR directors, safety directors, adjusters, defense attorneys, nurse case managers, etc.) know the process inside and out. We know all of the acronyms, the sequence of events and even a lot of great big medical terms that sound really cool at parties. (“Epicondylectomy” and “acromioclavicular” are two of my favorites.)

It is easy to forget that a claimant experiencing his first work-related injury has NO IDEA about how doctors are chosen, how TTD benefits are calculated or what MMI even means. Because we often fail to discuss comp rights and benefits with claimants without using the legalese and comp terminology that we throw around on a daily basis, the claimant becomes more confused than a dad reading a bicycle assembly guide translated from Chinese. 

Third, I’ve been told by plaintiff attorneys that many claimants are treated from the outset as if their claim is fraudulent. Don’t misunderstand me: I’ve seen my fair share of fraudulent claims – – most workers' comp professionals have. But not every claim is fraudulent. The challenge is spotting the fraudulent claims that are hidden within the legitimate claims. If employers or carriers treat every claimant as a fraud even before there is evidence of fraud, we’re giving free advertising to plaintiff attorneys. 

I say: Bypass the cloak-and-dagger approach, tell the employees up-front about what to expect and watch the volume of litigated claims go down. 

Now, if I could only find that “one trick” to regrow hair!