Some Experts Say Too Many Work Comp Claims Are Litigated
Employers may be warming up to the idea that fighting some workers’ compensation claims and medical treatments can be counterproductive, and new emphasis should be placed on keeping injured workers happy – and out of the courtroom.
“The workers’ comp system should be self-executing and so many times, it’s not,” said Michele Adams, vice president of risk management for Walmart.
Find exactly what you need. Search our database of more than 700 companies and 22,000 market listings.
Adams spoke Monday at the Workers’ Compensation Institute’s 75th annual educational conference in Orlando, which organizers said is the largest gathering of workers’ comp professionals in the country. The opening session was provocatively titled, “Does Our System Do Harm?” and included a range of speakers who said that, at least in some cases, the answer is “yes.”
Susan Shemanski, vice president for corporate risk management at the Adecco Group, one of the world’s largest temporary staffing firms, appeared to take issue with limits on benefit amounts and durations that a number of state legislatures have enacted in recent years in efforts to reduce costs to employers and insurers.
“It’s really not fair to the injured worker. I think this is an area that does harm to the injured worker,” Shemanski said.
“It’s almost like a penalty for doing well,” Adams added, noting that better comp benefits can help recruit and retain good workers.
Shemanski said that some injured workers have been thrown into near-poverty conditions while living on comp disability, have contemplated suicide and have turned to opioid medications to relieve physical and mental stress. She related the story of one amputee who couldn’t make car payments with the level of indemnity payments he was receiving. That, in turn, made it difficult to get to work when he was ready to return.
About 90% of comp claims are accepted and paid without much disagreement, the panelists said. But some 10% end up in litigation or mediation, and that’s too many. When injured employees feel cheated or ignored or have been denied benefits, or face utilization reviews, that drives many to seek legal counsel, adding significantly to the loss adjustment expense on claims, they said.
“I perceive that there’s way too much inclination toward litigation,” said David Langham, the chief workers’ compensation judge in Florida. “I’m probably not going to make any friends with this statement, but I think that probably, out there among us, there are way too many lawyers with little else to do.”
Advertising by plaintiffs’ lawyers, particularly in Florida, is so commonplace now that workers can’t help but feel they are due more than the amount of comp benefits they may be receiving, panelists said. Seeing that claimants are cared for, with proper benefits, can get them back to work sooner – and away from the television and its regular stream of attorney advertisements, they argued.
At another WCI session, on managing risk and exposures to improve employers’ bottom lines, claim experts said giving extra attention to injured workers is gaining new acceptance across the country. “Claim advocacy,” in fact, has become the new buzzword in the industry, said Scott Clark, a Florida-based vice president and claim advocate for Arthur J. Gallagher Risk Management Services.
“Injured workers who have become isolated run to attorneys’ offices where they feel they’ll have representation,” Clark said. “And you don’t want that.”
He said employers should make sure that injured workers are involved in and informed about the claim process, at every step. That includes soliciting claimants’ input on medical treatment, and often sending them to a specialist physician, not to a “doc in the box” urgent care clinic.
Adams, of Walmart, said that, with comp benefits and procedures differing so much from state to state, new efforts should be made to research the practices that work best and reduce friction in the system. And with so much data now available, surely more ways can be found to utilize it, along with artificial intelligence and competent claims adjusters, in order to avoid litigated claims and unneeded utilization reviews.
After multiple tornadoes ripped through parts of the South and the Midwest Saturday, injured workers and families of workers killed will now face a wide range of benefits. Some will see more assistance than others, officials at the conference said.
In Kentucky, one of the states hit hardest by the twisters, workers at a candle factory saw the building collapse around them, killing as many as two dozen workers. But some of those workers will not qualify for post-traumatic stress disorder benefits, explained Dwight Lovan, a former commissioner at the state Department of Workers’ Claims.
Kentucky law, unlike statutes in several other states, allows mental stress benefits only if the worker has also suffered a physical injury.