Preventing Litigation of Workers’ Compensation Claims
Two preventive priorities are critical to the success of a Workers’ Compensation program. The first is to prevent conditions that lead to injuries. The second is to prevent a job-injured employee from retaining an attorney. This article will explore the second risk and provide preventive recommendations for employers.
According to national statistics, claim costs rise an average of 30 percent when an attorney becomes involved on behalf of an injured employee. Litigation adds cost through multiple medical opinions, excessive medical treatment, delayed case closure, restricted communications, and defense-related expenditures. In addition, litigation tends to create an atmosphere of hostility that spills over into workplace morale.
Studies conducted by the insurance industry reveal the most frequent reasons why injured workers turn their claims over to attorneys. These are common causes that can be avoided. Some of them involve commonsense mistakes on the part of employers.
COMMUNICATE, COMMUNICATE, COMMUNICATE
Insult is added to injury when employers fail to communicate concern. Some companies treat an injured worker as if he or she had already become an adversary in a legal battle. The irony is that cutting off communication — especially the expression of basic sympathy — drives injured workers into the “sympathetic” arms of attorneys.
Employers need to have an injury protocol in place before any accident occurs. Response steps should be established, including:
- Claim-reporting process
- Designated contact person
- Workers’ Compensation letter
- Calendar of contacts
Throughout this process, weekly communication of concern for recovery and offers of assistance in acquiring appropriate Workers’ Compensation benefits help prevent the injured worker from feeling abandoned or alienated.
Prevent a Protracted Process When the Workers’ Compensation claims process takes too long, injured workers grow impatient. Feeling powerless, they turn their frustration over to legal counsel, thinking that will add muscle and speed resolution.
The best preventive measure against this response is initial — and repeated — setting of expectations. Explaining the process face to face and keeping the injured worker informed on progress are important points of communication. The employer should communicate the process, including:
- Prescribed medical care
- Light-duty work options
- Return-to-work expectations
- Claim resolution
Address Job Insecurity
Injured workers fear job loss. The greater the injury, the greater the fear. Employers should never promise the same position will be available. However, providing lightduty work during recovery and offering vocational rehabilitation assistance help assuage the urge to “lawyer up.” Again, communication is vital.
Defend Against Dissatisfaction
Some states allow the employer to designate the treating physician in cases of work-related injuries. Many employees — injured or not — prefer their own physicians because medical care is a very personal matter. Studies show that dissatisfaction with medical care — whether the physician or the prescribed treatment — drives injured workers to take legal action.
Employer flexibility on the selection of physician can reduce this concern. A word of caution is needed: Long-term personal physicians may not be as objective about recovery regimens and results as employers might prefer.
Explain Benefit Delays
Injured workers become annoyed claimants when there are delays in their weekly Workers’ Compensation checks. Employers need to manage expectations by informing injured workers verbally and in writing about:
- Payment schedule
- Benefit amount
- Potential delays
- Benefit cessation
- Contact information
Avoid Hiring Trouble
Employers’ best line of defense is recognizing the potential problem profile and avoiding hiring trouble. Those who abuse the Workers’ Compensation system with fraudulent or exaggerated claims may have a history of malingering or litigation.
Before hiring, check to see if the job candidate has filed claims against a previous employer. Those who sue once are likely to sue again. Be especially cautious if injury claims were filed within the first three months of previous employment or if the job applicant has a spouse or family members with a history of Workers’ Compensation abuse.
Offer Light-Duty Options
Offering job-injured employers early return to work through “suitable and reasonable” light-duty alternatives affords employers and employees a number of advantages. Prior to full recovery, the employee may be able to assume his or her former position within some medical restrictions. If not, a different position with “lighter duty” consistent with disability may be offered. Environmental and physical demands must be taken into account for the disabled person.
Some states mandate the employer’s right to require light-duty return to work; if the employee refuses, he or she loses Workers’ Compensation benefits under the laws of those states. For the employer, the advantages of light duty include reduction of benefits payment and increased productivity.
In addition, the returned worker’s claimed disability can be monitored and recorded first-hand by the employer. Light-duty return to work can also reduce industrial disability claims because the employee will experience reduced loss of earnings.
For the employee, light duty is the beginning of return to a preinjury life. In cases where injury is so severe that there cannot be a return to preinjury life, the employer may be able to assist the worker by accommodating modified work or finding alternative employment.
Employers who accommodate injured employees may also fare better when claims turn into litigation. It is also advisable to include the requirements and restrictions of a light-duty program in the employee handbook. The program details should be covered during new employee orientation and periodically reviewed.