Litigation can happen in any workers’ compensation issue. Not on every claim, but if there is an aggressive carrier/TPA that denies cases, it will lead to legal hearings over decisions the adjuster made on the claim.
Some Litigated Cases Are More Complex Thank Others
Some litigation cases are more complex than others, all with varying personalities involved. Some plaintiff firms and adjusters are more aggressive than others.
There are always many outside factors involved once a claim moves into litigation. The carrier/TPA’s overall goal is to end the litigation by paying out the least amount of exposure as possible. On the other side, the plaintiff’s goal is to net as much money or benefits as possible. This conflict in interests can lead to months upon months of legal “back and forth.” But what can stall out progress on litigation?
The employee is not realistic
Litigation leads to a lot of bitterness from the injured workers. They feel resentful about getting an attorney to assist in getting “what is theirs,” including benefits, be it medical or indemnity in nature. Most of the time, when the adjuster asks for a plaintiff’s demand on what could resolve the case, it is unrealistic. Either the employee wants a big wheelbarrow full of money or some medical treatment that the carrier does not feel is required to pay. Plaintiff counsel works for the client, the injured worker. Even if the adjuster puts forth a fair settlement offer, and even if the plaintiff counsel feels it is adequate and fair, the injured worker may reject it. Sometimes plaintiff attorneys have a problem controlling the client, stalling out litigation for sure. In the end, a judge may have to decide what is or is not fair. Carriers hate to risk going to a judge, but sometimes it is the only way. Most judges will want the two sides to work it out among themselves, but it just cannot happen in every case.
The employer wants to play hardball.
The employee is not the only party to play with unrealistic expectations. Sometimes the adjuster is faced with an employer/insured who is just not reasonable, no matter how much the issues are broken down. Sometimes personal issues are intertwined within a workers’ comp case. If the employer has a bone to pick with the employee, or an example is being made out of that person to scare off other employees from pursuing litigation, it will not help the case end quickly. The judge will have to become involved, and this can backfire on the employer. At the end of the day, the adjuster has to get the authority from the employer to settle the case for a certain dollar amount. Even if it were to be a fair amount for all parties involved, the employer can always pull rank and steer the claim off track.
The attorneys involved are not being proactive.
A busy law firm has many cases, sometimes spread across the state in which there are cases on the docket. Super busy law firms with many attorneys just cannot make it to every legal hearing or mediation, which leads to that mediation being rescheduled. Quickly, 90 days can go by without anything being done on either side. This can be true of both defense and plaintiff law firms. And if the two busy sides are put together, the case will not be going anywhere anytime soon. It is the job of the adjuster to maintain the reins on the defense attorney and force the issue to be addressed in a timely manner. There are many defense law firms that are willing to do whatever the employer requests, and if the current firm is having an issue with attendance, something needs to be done right away. It is not allowable for the adjuster to just pass the case over to the defense attorney and let it go from there. When an employer starts to see a trend with ongoing litigation, sound the horn and become more involved. Lean on the adjuster to find out what is going on. Legal expense is not cheap, and employers should be paying for legal services that are acting in their best interest.
The adjuster is not open to settling cases.
Employers dealing with adjusters who are not settling cases have a serious issue. Sometimes cases are compensable and can cost a lot of money. The adjuster may not be willing or happy to accept this, but it is part of the job. If settling a case is an option to end exposure, and the adjuster is not realistic and follows wishes, then bring that up to the adjuster’s supervisor. The good news is, most cases in litigation involve the supervisor anyway. But everyone is busy, and sometimes the supervisor can overlook what is going on. It is hard to stay on top of every single case, so if there are some concerns on where the case is heading or how it is getting there, then voice an opinion. The adjuster and carrier work for you, and they are there to assist with these legal issues and to act in the best interest of an employer. If the adjuster refuses to have an open mind and accept the fact that all cases cannot be tried, then maybe a new adjuster is needed. Because in the end, it is the employer who will be damaged by a bad legal outcome. The carrier will move on, the attorneys will move on, and the employer needs to be comfortable with the way the litigated cases are being handled.
Litigation is unavoidable. It will happen, sometimes more often with certain employers than others. But that does not mean that the litigation process has to be painful. Litigated cases need to be handled correctly, since one bad move can result in a lot of money being paid out unnecessarily. Keep the litigation moving, keep involved, and be prepared to handle litigation when it happens.
Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a 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 the founder & lead trainer of Amaxx Workers’ Comp Training Center, which offers the Certified Master of Workers’ Compensation national designation.
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