Litigation is bound to happen at some point in your work comp program. It could be that a case that was once compensable is now no longer deemed compensable. It could be that you received a petition for hearing out of the blue from a former employee. You can be added to the litigation other parties are having over a different issue. Litigation is bound to happen.
The legal case can present itself many ways. Some could be a clear disputed injury date, and another could be as vague as an occupational exposure injury of which you are 1 of 15 named defendants.
“We Do Not Have Any Exposure” Is Not Accurate
The important thing to remember is to look at the big picture in the case. The plaintiff feels that something they did while working for you lead to them being injured. The response of “we do not have any exposure” is not accurate. Even the wildest case has exposure of some sort, and it is key to not overlook the merits of the case no matter the allegation.
I see many examples of cases that started off as being nominal and later it turned out the employer was responsible for a sizeable sum of money contributed towards the settlement. This is due to the attorney/adjuster/employer not considering the case as a whole. What starts off as an elbow injury can turn in to a shoulder or neck claim that could be post-surgical in nature, depending on how the injury occurred and the medical evidence. With this type of claim, all of the sudden you have a larger case on your hands.
Petition Can Be Worded To Broaden The Scope Of Injury
Plaintiff attorneys also know how to word a petition. If you look closely, rarely are they narrow in scope. Words like “general” or “repetitive” or “occupational exposure” hold different weight in different jurisdictions. The petition is worded this way in order to broaden the scope of the injury. Instead of saying “left elbow” it may say “left upper extremity.” That alone is a great example of the plaintiff counsel using wording to help their own case.
Any surgical case can have a large exposure in both in the medical and wage loss fields. Certain states have Permanent Partial Disability (PPD) rating, and just this rating could mean the injured worker is entitled to certain ongoing future benefits whether they work at your factory or not.
Another area to consider is the potential lien exposure. Not just from Medicare or Medicaid, but from other health insurance providers as well such as Blue Cross/Blue Shield, United Healthcare, and so on. They will add themselves to the suit, and their lien interests have to be considered towards a settlement.
Choose Legal Council That Is Well Versed In Work Comp
Adjusters are trained to reserve cases on overall exposure and need to know early on in the litigation process if you have no intentions of returning a worker back to their job. If you decide on this aspect 14 months later, you can expect a reserve increase to follow.
In order to settle cases on a timely basis, you need to have legal counsel that is well-versed in work comp. They need to have a relationship with the Judges, plaintiff attorneys, doctors, etc. It is very important to choose counsel based on a referral or recommendation. The attorney should know your factory, the layout, and the jobs involved. It is only to your advantage to develop a personal relationship with your legal counsel. The better they know you, the better they can handle your cases.
So keep in mind to look at the big picture in your litigated cases. Look at it from the injured workers point of view and the motivation of the plaintiff counsel. What are their next steps going to be, and how are they going to present their case? If you can figure out the answers to those questions, you will end up resolving your litigation quicker, cheaper, and more efficiently than your industry peers.
Author Michael Stack, Principal, COMPClub, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and founder of COMPClub, an exclusive member training program on workers compensation cost containment best practices. Through these platforms he is in the trenches on a monthly basis working together with clients to implement and define best practices, which allows him to continuously be at the forefront of innovation and thought leadership in workers’ compensation cost containment. Contact: mstack@reduceyourworkerscomp.com.
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