Takeaways from WCRI Annual Issues and Research Conference: worker outcomes, attorney involvement

Keys to improving worker outcomes

Worker outcome surveys are a key component of The Workers' Compensation Research Institute's (WCRI) work. An independent, not-for-profit research organization, it provides data and analysis aimed at improving workers' compensation systems. Measuring workers' access to care, satisfaction with care, return to functionality, recovery at work, and earning history, the surveys are designed to give injured workers a voice in the discussion of how workers' compensation can be improved, as well as assess how they fare in the system.

Reading through the observations, it's easy to think that's obvious and simple; yet, similar issues have existed for several decades, indicating implementation is not as simple as it seems. According to Safety National Conference Chronicles, the observations include:

• Among workers who had worst claim outcomes, 48% had a strong fear of being fired after a workplace injury. There may be real justification for concern or a more general lack of trust in the employer.
• Those concerned about being fired from the workplace retain attorneys.
• Back in the mid 1990s, a study of back injury cases in New Hampshire showed a strong correlation between prolonged disability and the injured worker feeling their supervisor was negative and unsupportive.
• Some of the words used by claims adjusters and employers can have very negative impacts on the message. Words such as claimant, adjudication, pending investigation, etc., focus on conflict and the process, ignoring the person who actually had the claim.
• Another study found that when the claims handler expressed empathy, engaged in active listening skills and took the time to explain benefits claim outcomes improved.
• Simply asking the worker "do you feel you will be able to return to your regular job without restrictions in 4 weeks" is an excellent predictor of disability duration. If the injured worker says "no" they are usually correct.
• If you do not have company policy and practices aligned with messaging, you will not get positive messaging from supervisors. Company culture starts at the top.
• The medical providers and case managers also can have a significant impact on the claims outcomes.

Takeaway: Most employers understand that the initial response to an injury, continual and effective communication, and workplace satisfaction are critically important for positive claims outcomes. Yet, injured employees' perception of their work environment and lack of communication with injured employees remain major drivers of "permanent disability." If they feel their needs aren't being taken into account or they are being treated unfairly, they are less likely to return to work and more likely to retain an attorney. It requires constant vigilance to be effective.

Attorney involvement

Injured workers in Illinois are more likely to lawyer up than any of 18 states studied by the WCRI, while only a small fraction of injured workers in Wisconsin and Texas had legal representation. Attorneys represented workers in 52% of Illinois claims with more than seven days of lost work time. New Jersey was a close second at 49%, with Georgia following at 41%, then California at 40% and North Carolina fifth at 38%.

Explaining the high rate of attorney involvement in Illinois, the researchers noted that the state bases permanent partial disability benefits on several factors in addition to physical impairment. It also may be more difficult in Illinois to terminate temporary disability benefits than in other states. Also, the difference between maximum permanent partial disability and temporary total disability benefits is much wider in Illinois than in other states. The maximum TD rate in Illinois is $1,362, while the maximum PPD rate is $775, providing an incentive for injured workers to keep their cases open.

On the other hand, workers had low legal representation in Wisconsin (13%),Texas (14%), Michigan (17%), and Indiana (18%). In Wisconsin, the lower attorney involvement is likely due to limits on lump sum settlements, and an administrative process for resolving disputes. In Texas, caps on attorney fees for both plaintiff and defense attorneys, the prohibition of lump sum settlements of claims, which is the main driver for attorney representation, and an efficient dispute resolution process that does not necessitate attorney involvement all contribute to reduced attorney involvement. The researchers concluded that a more self-executing system limiting settlements significantly reduces attorney involvement.

More insights to attorney involvement can be found in a 2010 study by WCRI, Avoiding Litigation: What Can Employers, Insurers, and State Workers' Compensation Agencies Do?

The study found that workplace trust issues, fear of claim denial and injury severity are the main reasons for attorney representation in workers' compensation claims. It's important to point out that a simple delay in paying a medical bill or an erroneous interpretation of a communication is enough to stoke the worker's fear that the claim was going to be denied, thus leading to attorney involvement. The most effective way to counteract this fear is through reassurance and the building of trust.

Takeaway: Treating injured employees with respect, clearly explaining the process, and making them feel confident that they will get the treatment they need and that their job is secure will help reduce uncertainty and fear.