How to Keep Attorneys Out of Your Workers’ Comp Claims

The Yellow Pages for New York City lists 45 law firms in its section on workers’ compensation attorneys. Even tiny Medford, Oregon (population 75,000) boasts five workers’ compensation law firms. It takes a lot of employers to keep all those lawyers busy—here’s how to ensure that your business isn’t one of them.

When the workers’ compensation system works properly, it’s simple. An injured worker immediately reports his/her injury to the employer, gets treatment and files a claim with the employer’s workers’ compensation insurer or administrator. The insurer or administrator (in the case of a self-funded employer) then promptly pays the employee for all medical costs and any lost time.

However, disputes can arise when one or more things happen:

1. The employee doesn’t understand the workers’ compensation process,
2. the employee and employer don’t agree whether the injury is work-related or primarily work-related (more likely to occur in back injuries or repetitive stress injuries),
   or
3. the employee suffers a serious injury and permanent disability.

In those cases, the employer and employee may disagree on how much compensation the employee is owed for his/her disability. Any of these situations could prompt an employee to want legal representation.

The Workers Compensation Research Institute (WCRI) released a study on attorney involvement in comp claims. It found employees are more likely to hire an attorney to represent them in a workers’ compensation case in these circumstances:

1. The employee feels threatened.
2. The employee fears being fired.
3. The employee’s supervisor doesn’t believe the claim is valid.
4. The employee fears his/her claim will be denied. Reasons for this include receipt of a denial notice, a delay in payments or communications with the claims manager.
5. The employee has a serious (permanently disabling) injury.

Employers and claims managers can take steps to mitigate the first four situations. However, the WCRI study found that serious injuries had a “high correlation” with attorney involvement. Bogdan Savych, an analyst at WCRI, said actions by employers or claims staff would likely have little effect on reducing attorney involvement in these cases.

The WCRI study found other factors also increased the likelihood of attorney involvement in workers’ compensation claims. These include:

• Education level. People with a high school-only education versus college graduates.
• Language. Workers who chose to be interviewed in Spanish.
• Tenure. Workers who’d been on the job a year or less.
• Injury type. Individuals with low back conditions.
• Age. Older workers versus younger ones.

Why Try to Minimize Attorney Involvement?

Attorney involvement in a workers’ compensation claim decreases your chances of early return to work. After all, an attorney has no interest in getting your employee back on the job. Attorney involvement will almost always increase the time it takes to settle a claim and may increase your costs, since you will need your own representation.

Employees don’t always win when hiring an attorney, either. Most workers’ compensation attorneys work on a contingency basis, taking a percentage of any payments or settlement your employee receives.

The following steps can help you reduce the likelihood of workers’ compensation claims disputes:

1. Educate your employees about workers’ compensation. Knowing how the system works can often allay the fears that lead employees to consult attorneys.
2. Communicate frequently with any employees who are out of work due to work-related injury. Staying involved, rather than turning the claim completely over to your insurer or administrator, can keep the worker connected to the workplace and lessen his/her fears of being lost in a bureaucracy.
3. Promote your organization’s early return-to-work philosophy. Employees who fear losing their jobs are more likely to involve an attorney; assuring your employees that they will be returned to work as quickly as possible could lessen their fears of termination and get them back on the job and earning again.
4. Train supervisors on the proper handling of a work injury.
5. Make sure employees know that, even for fully insured employers, workers’ compensation claims affect the company’s bottom line. As a component of total compensation costs, excessive comp claims could affect the amount the company can spend on other employee benefits.
6. Consider providing short-term disability benefits. This can provide a source of income to disabled employees whose claims might be in dispute. If the claim is found to be work-related, the workers’ compensation insurer will reimburse the disability insurer. (Six jurisdictions require employers to provide employees with benefits for short-term disabilities not related to work: California, Hawaii, New Jersey, New York, Rhode Island and Puerto Rico.)

If, despite these steps, your employee lawyers up, you will want to hire a workers’ compensation defense attorney as soon as possible. Keep in mind that your insurer might sometimes want to settle a claim when it might not be in the best interest of your organization and its experience rating.