As long as there are workers compensation claims and ways for attorneys to make money from workers comp claims, attorneys will be involved in the processing of some of these claims. There will always be employees enticed by television commercials with the attorney holding fistfuls of money and saying, “Call me. I will make you rich.” or words to that effect.
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“How To Avoid, Manage, And Win Workers’ Comp Claim Litigation”
There are three primary reasons employees hire an attorney in the workers comp claim process. The employee (1) does not know what to expect; (2) is fearful for themselves and their families; (3) a controversy develops between the employee and the employer, or between the employee and the claims adjuster. Of course when the employee’s attorney files a petition with the workers compensation commission, they do not list “greed” as the reason; rather, they attempt to cloak the greed by creating controversy.
To significantly reduce the number of employees hiring an attorney avoid making these five mistakes driving an employee into the arms of a waiting workers comp attorney.
- Failing to Provide Immediate Medical Care – Being lazy about providing medical care to the injured employee is one of the biggest mistakes an employer makes when an employee is hurt. When an unknowing or untrained supervisor does not want to bother with the workers comp claim and tells the employee to “give it a few days,” it is almost a guarantee the employee is going to hire an attorney.Think! — The employee is in pain, medical care is not being provided, the employee’s attitude quickly becomes “they don’t care about me” which quickly switches to “I don’t care about them either.” The only remaining question for the employee is whether to go to a doctor on their own or not. To answer that question they turn to the Internet/TV attorney or the yellow pages attorney. Keep in mind these cases are taken on contingency so the injured worker does not have to come up with a retainer for attorney fees. If the employee “wins” the case, the employer pays the attorney.The solution – Everyone in the company, including employees, should know immediate medical care is to be provided on all work-related injuries. Every supervisor and manager must ensure medical care is provided immediately upon learning an injury occurred. Of course, if your company used nurse triage, this would go a long way toward allevaiting this issue because employees would call the triage nurse immediately.
- Late Reporting – It is always amazing to workers comp adjusters, defense attorneys, and the Board of Workers Compensation when they see an injury occurred a week ago, a month ago or even longer before it is first reported.Sure, the time and paper work of reporting a workers comp claim is a hassle, and the employer’s person(s) in charge of reporting workers comp claims has more important things to do (like office gossip time, personal e-mails, or even actual work responsibilities). However, as the employee sits at home not hearing from the workers comp adjuster, medical triage or the employer, fear sets in and questions arise about how bills are going to be paid and the family taken care of. When no one explains how much the indemnity check will be, or consults about medical care, (since no one reported the claim to the claims office) the employee starts to think about hiring an attorney to enforce “their rights.”The solution – The person(s) in charge of reporting claims to the claims office must consider the immediate reporting of the claim as THE number one priority over all other job responsibilities.
- Ignoring the Employee – After the supervisor obtains immediate medical care for the employee and the claim is reported on the same day to the claims office, the employer must continue to be involved in the claim. If the employer “forgets” the employee works for them after the claim is reported to the claims office, the employee will develop the attitude that the employer no longer cares about them, and then seeks out an attorney. The attorney is then the one who patiently listens to the employee’s tale of woe and assures them “everything will be okay.”The solution – Instead of paying an attorney to reassure the employee, the employer should do so. Whether it is the claims coordinator, the employee’s manager, or someone else within the company, a person representing the employer must maintain regular contact with the employee following the initial medical care and at regular intervals until the employee is back at work full duty. That means regular phone calls, meetings and get-well cards. Make a First Day Phone Call the evening after the injury to make sure all bases are covered. Consider using “Early Dissatisfaction Surveys”, a service Jennifer Christian, M.D. provides, to find out how your employees are treated when they are injured.
- Under-reporting the Compensation – Regardless of how state laws require temporary total disability compensation to be calculated (13, 26 or 52 weeks) the average weekly wage includes all compensation, often more than the amount of salary or wages paid each week. If the employee normally receives commissions and bonuses, or is provided housing, meals, or paid health care benefits, include all types of compensation in your report of income to the claims office. When the employee sees the indemnity check does not include the bonus, commissions or health insurance coverage, these omissions can become a reason to seek out an attorney to obtain all due benefits.The solution – know your state law and what should be included in the calculation of indemnity benefits. If some type of benefit you have been paying to or for the employee is not included in the compensation reported to the insurance company, then it needs to be discussed with the employee so the employee knows why they are not receiving that part of the compensation.
- Not Complying with the Medical Restrictions on Modified Duty – Too many employers willingly accept the employee back at work on modified duty status from the treating doctor, and put the employee right back to work doing the previous job. If the doctor states the employee cannot lift more than 10 pounds, and you assign the same job duties where 40 pound lifting was routine, expect problems. First, you are going to re-injure the employee and extend both the medical treatment and the time off work, plus you are going to create that “they don’t care about me” attitude with the employee.The solution – Review the modified duty restrictions imposed by the treating doctor and know exactly what the doctor expects in the way of modified duty. During the first minutes the employee is back at work on modified duty, review what the doctor states can and cannot be done, keeping modified duty in compliance with the doctor’s restrictions. (WCxKit)
By treating the employee properly, you can expect to lose fewer employees to attorney representation and the associated cost of attorney involvement. Plus, you will have a happier and more productive employee as the employee understands you care.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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