Keeping Lawyers Out

July 1, 2007
Nothing against lawyers, but litigation sparked by a workers' compensation claim can be expensive, time-consuming and often downright nasty. That's why employers need to realize that once a legitimate claim has been approved, their work has just begun.

Disputed workers’ compensation claims are a fact of life. For a variety of reasons – from a debate over whether the injury occurred on the job to a dispute over just how badly the worker is impaired – claims sometimes are denied, in whole or in part.

Workers’ compensation expert John Valente – author of the book “Workers’ Compensation: Managing Workplace Injuries and Lowering Costs” – notes that in such circumstances, injured workers often feel the need “to hire a lawyer to help navigate through the sometimes turbulent waters of workers’ comp.”

“They want to know their rights. They want to know their responsibilities,” Valente explains. “They want to find somebody who is going to protect their interests.”

But sometimes even when a workers’ compensation claim is approved, injured workers believe that they need to get a lawyer involved. That’s where employers come in.

Why Litigation Is a Bad Thing

The fundamental purpose of the workers’ compensation system, in Valente’s words, is “to provide a predictable, prompt, efficient process that returns the injured worker to the work force as soon as possible.”

That said, Valente notes that getting lawyers involved in the workers’ compensation process – when it’s not absolutely necessary – is counterproductive to that purpose.

“‘Lawyer’ is equivalent to cost – time cost, financial cost, sleep cost,” Valente explains. “Litigation in any kind of case is adversarial, at the very least, and in some situations, litigation can become very nasty. ... [I]n workers’ compensation, that’s not beneficial.”

Not only can litigation slow the injured worker’s return to work, Valente adds, but it also can create lingering bad blood between the worker and his or her employer.

“Accusations get made that, if taken personally, can make a continued relationship between the parties difficult,” Valente says. “And that’s not helpful when your goal is to return the injured worker to work in the quickest and most cost-effective way possible.”

Still, Valente adds, “that’s not to say you don’t fight the good fight when there’s a disputed case.”

“Disputed issues exist. Fraud exists. Questions about compensability or the amount of benefits exist,” Valente says. “But really, the key is keeping lawyers out of the system when you don’t have those kinds of issues. And in most instances, injured workers don’t need to hire lawyers unless all or part of their claim is denied.”

Why Lawyers Get Involved

According to Valente, there are two common scenarios that tend to spur workers to contact lawyers when it’s not absolutely necessary. The first scenario is poor communication. The second is when workers think that they’re being denied something that they’re owed.

In the first scenario, communication – from the employer, the insurance adjuster or both – “has been lacking or nonexistent.”

“It’s important for employers to remember that just because somebody has been hurt at their workplace and they’ve reported it to their insurance company, they don’t just wipe their hands of the whole thing,” Valente explains. “They don’t just say, ‘OK, I’ve done what I have to do. I’m finished.’”

In the second scenario, injured workers whose claims have been approved think that they are being denied benefits to which they are entitled. Workers might come to that conclusion for any number of reasons: A wage replacement check doesn’t arrive on time (or at all); the local pharmacy refuses to fill a prescription for the worker’s pain medication (because the insurance company hasn’t reimbursed the pharmacy); or the worker receives a collection notice for unpaid medical bills (because the insurance company hasn’t paid the hospital).

In such circumstances, workers tend to panic – and that’s when they call lawyers.

“And [lawyers] play on their fear,” Valente says. “Because what happens is you’re sitting at home, you’re on the couch – legitimately, you’re not supposed to be at work, you’re supposed to be resting your back or you just had surgery on your left elbow and you’re in recovery – and you’ve got somebody telling you, ‘Hey, I’ll look out for you, because the insurance company isn’t going to.

“And then you think, ‘You know what? That darn insurance company, they didn’t pay me last week. I had to call them because they didn’t send me the check and I just got a bill saying that there’s a collection notice here for some unpaid medical bills. I’m going to call this attorney, because he’s going to take care of this for me. He’s going to look out for me.’”

What You Can Do

Despite your company’s best efforts to eliminate hazards and prevent workplace accidents, a worker suffers an on-the-job injury. You promptly report the injury to the workers’ compensation insurance provider and quickly launch an investigation to determine how it happened, how future injuries can be prevented and whether the workers’ compensation claim is legitimate.

It turns out that the workers’ comp claim is legitimate – the worker was hurt on the job, as several witnesses can attest – and the injury will require surgery, physical therapy and several weeks of recovery at home.

Now what?

Keeping in mind that the goal of the workers’ compensation system is to return injured workers to work as quickly as possible, Valente urges employers to take an active role in the worker’s recovery process.

“In the majority of these circumstances, the injured worker is somebody who is a valued, contributing employee that you want back – because it’s easier to get that person back than it is to train somebody else,” Valente says. “So you want to assist that person to the best of your ability and let them know that you’re there for them.”

That begins with ...

The Once-a-Week Rule

Valente recommends designating someone at the company to call injured workers once a week. The weekly call to injured workers can nip a problem in the bud – such as the collection notice that just showed up in the worker’s mailbox – before it escalates.

“If the employer washes their hands of the claim when they turn it over to the insurance company, the employer doesn’t know what’s going on,” Valente says. “So now, if the employer makes a weekly phone call to the employee and is not intrusive, does not force themselves into asking personal questions – ‘Hi Sally, this is John over at the company. We miss you. Just wanted to check in. Is there anything you need or anything we can do for you?’ – if Sally trusts her employer, she’s going to tell you that she received a collection notice. She’s going to tell you that her wage replacement benefits haven’t been paid.”

If a worker reveals that indeed he or she has been receiving collection notices for unpaid medical bills – or gives any other indication that the workers’ compensation claim has not been processed properly – it’s time to call your workers’ compensation insurance provider.

Intervening on behalf of your injured worker not only is your moral obligation as an employer, but it also is your obligation as a consumer. After all, Valente emphasizes, your company is paying for an insurance product and has every right to grill the insurance provider if the injured worker’s legitimate claim has not been processed properly or efficiently.

“You pick up the phone,” Valente explains, “and you call your insurance company and you say, ‘Sally just got a collection notice. Do you have the bill? Why hasn’t it been paid? That bill should be paid immediately. Or do you have a reason for denying it? Because she hasn’t been told that you’ve denied it.’”

Intervening on an injured worker’s behalf – and resolving the problem – pays numerous dividends. It keeps lawyers out of the process, it eliminates obstacles to the person returning to work as quickly as possible and it builds trust and morale – with the injured worker and with his or her co-workers.

“Because ... workers don’t live in a vacuum,” Valente says. “They spend 8 hours a day on the factory floor with their co-workers. That’s how it works.”

Report All Injuries

Another way to keep lawyers out of the workers compensation’ process is to report all injuries.
Valente recalls one real-world example in which a worker tripped over a mop bucket and tweaked his back. The worker informed his supervisor of the incident and then went to the break room to rest his back. About 15 minutes later, the worker told his supervisor that his back was better, and the worker returned to the factory floor.

About a month and a half later, the worker told his supervisor that his back still hurt and that he needed to go to the hospital. The supervisor – who had forgotten about the initial mop bucket incident – told the worker to go to the human resources department and file a workers’ compensation claim.

The workers’ compensation insurance adjuster – who saw a claim for an unwitnessed, unreported accident that happened a month and a half before the worker required medical attention – denied the claim on the grounds that it was fraudulent.

“Well now the worker thinks he’s getting the screws put to him by his company,” Valente says. “So now all of a sudden you have bad feelings between the worker and the supervisor, the worker and the company and the supervisor and the HR people. And this guy goes and gets a lawyer. So the company gets a lawyer and I get called in.”

Upon further investigation, Valente found out that the supervisor, on the day of the mop bucket incident, had made a note on his run sheet that the worker had tripped over a mop bucket and had hurt his back. But the supervisor had not formally reported the injury.

While the story has a happy ending – the insurance provider eventually approved the injured worker’s claim – Valente can’t help but think about “the wasted money, the wasted time and the bad feelings” sparked by the supervisor’s simple failure to quickly report the injury.

The injured worker isn’t the only one who now has a reason to mistrust the company.

“You also have to worry about it with all of his buddies on the production floor who say, ‘Geez, they tried to put the screws to Billy, what are they gonna do to me?’” Valente says.

The moral of the story: Report all injuries, no matter how insignificant they seem.

“Because ... the cut on the finger today turns into a staph infection tomorrow, and then you start getting issues,” Valente says.

And issues, as we’ve discovered, often lead to lawyers.

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