A look at litigation in Workers' Comp

A recent article, Concerning Counsel: A Look at Litigation in Workers' Comp, in Healthesystems' RxInformer, a semi-annual clinical journal, explores how attorney involvement increases claim duration and costs, what types of claims are most likely to be litigated, reasons why workers hire attorneys, what states are most litigious, and what steps employers can take to help reduce litigation.

Key findings:

• Attorney involvement increases lost time days by 284 percent and inflates expense payments by 200 percent. (WCRI)
• The top ten litigious states are New Jersey (1), Maryland (2), Illinois (3), Missouri (4), South Carolina (5), New York (6), Georgia (7), California (8), Delaware (9), and Oklahoma (10).
• Attorneys are most likely to be involved in cases that have disputes and more benefits at stake. Sixty-four percent of claims with permanent partial disability and/or lump sum payments had attorney representation, as opposed to only 14 percent of temporary disability claims.
• Type of injury is a significant factor - 61 percent of claims with neurologic spine pain were represented by attorneys, as compared to 22 percent of claims for lacerations and contusions. The complexity of the claim, as well as claim denials, are key drivers.
• Workers with ten or more years are less likely to hire attorneys than newer employees.
• Industry stakeholders cite opportunistic attorneys, mega claim settlements, and television ads viewed by recovering injured workers as being responsible for increasing litigation and high awards.
• Injured employees cite several reasons for involving attorneys, which generally reflect lack of support, fear, poor communication, and misinformation. These include:
  • Fear of being fired when injured
  • Concern that their supervisor questions the legitimacy of the claim
  • Belief that the payer/insurer has denied the claim
  • Unfamiliarity with the workers' compensation system
  • Lack of communication from employer
  • Lack of communication from insurer/adjuster
  • Confusing or conflicting information
  • Loss of employer-paid health insurance
  • Denial or delay of prescribed medical treatment
  • Delays in indemnity or medical benefit payments
  • Dissatisfaction with employer before injury
  • Lack of modified work duty

To minimize the risk of work comp litigation, employers should proactively foster positive employee relations by building trust and rapport, reaching out and expressing empathy when an injury occurs, promptly addressing workplace injuries, and advocating for the injured workers' best interests. Open and frequent communication is key to addressing concerns, providing updates, and keeping the claim on track. Making communication easy by assigning a point of contact and understanding the employee's preferred communication methods will convey reassurance.

It's also critical to have effective injury management practices that are well-communicated to employees. These include prompt reporting, timely medical attention, recovery-at-work programs, and proactive claims management with insurers, vendors, and partners. Help adjusters flag claims that may be at a higher risk for litigation, be prudent about denials, and choose vendors and partners wisely.