Selecting the right person to defend a workers’ compensation claim is an important component of any program. Not selecting the right attorney can be detrimental. This includes failing to settle cases in a timely manner, unnecessary litigation costs and other missed opportunities. Now is the time to review the panel of attorneys you are working with and remove those who are not meeting the needs of your program.
It All Starts with the Selection Process
Over the years, experienced claim handlers develop relationships with countless attorneys who defend workers compensation and other insurance related claims. This results in a referral process where various firms are selected to represent the program on claims and the funneling of a consistent file load to those who make the grade. While the development of these relationships is great, it can often have a negative impact on your claim files if the attorneys are not meeting the objectives of your program.
The review of defense attorneys and panels should done on an ongoing basis. While the development of a prior professional relationship is important, it should never be the sole or controlling factor.
Important Factors to Consider
There are a number of factors members of the claims management team should consider when selecting the right attorney to defend a case. This includes some thoughtful consideration on the part of all members on the claims team who need to deal with and interact with attorneys.
- Ability to think independently. All workers’ compensation cases are subject to evaluation based on criteria related to the statute and interpreting case law. While component counsel must understand these basics, effective defense attorneys have the ability to peel back the layers of a claim and develop strategies that will drive a case toward settlement.
- Ability to be a zealous advocate. This is the core of what separates a good attorney from one who is great. In workers’ compensation, a zealous advocate is able to see through the smoke and provide the claims handler with an honest analysis on the case and all likely outcomes. They will also be able to provide common sense solutions that take into consideration the law and other extraneous factors that are in play when it comes to a demanding file load.
- Ability to “win” every case. The inherent bias in the workers’ compensation system toward the employee and compensability of claims means a majority of cases that go to hearing will result in an award to the employee. It is important to work with those defense attorneys who understand the biases within the system and proceed with caution. Top-notch defense attorneys are able to pick the cases that should go to court, and settle those that are destined for failure.
Other Important Intangibles
Interested stakeholders responsible for programs should also monitor and be aware of important intangibles that make a defense attorney great. This should never include the inducement of free tickets to sporting events or fine wine. Instead, those who seek to improve the counsel they work with should look at other facts:
- Ability to seek creative solutions to complex problems;
- Responsiveness to inquiries such as voicemail messages and email;
- Regular status reports and forthright analysis on files; and
- A positive reputation amongst peers and ability to deal with difficult opposing counsel and claimants.
Most claims management teams have a number of good defense attorneys to work with on their disputed files. The ability of claims handlers to find the great attorneys will reduce time spent on files and promote savings in their workers’ compensation program. Part of this process includes the need to evaluate all defense counsel on a regular basis and work only with those dedicated to effective and efficient representation.
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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 is founder of COMPClub, an exclusive member training program on workers compensation cost containment best practices.
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