Top Ten List as to Why Injured Workers Retain Attorneys
(with apologies to David Letterman)
When I left a workers' compensation defense law firm to open my own law practice representing injured workers instead of insurance companies, among my concerns was where would my clients come from?
It did not take long for that concern to vanish.
After 17 years in a plaintiff/claimant practice, I still am amazed at how many workers fill my waiting room as a direct result of the actions or inactions of their employers and insurance companies.
Of course, attorney involvement is something my colleagues and I highly recommend. Its inevitability increases in direct proportion to the seriousness of the injury or the length of incapacity (not always the same thing). Many other smaller claims would not make it to our offices but for the reactions, real or imagined, of the employer to the claim. While it may be debated whether attorney involvement drives up costs, it can safely be said that our involvement does nothing to keep costs down.
Having said that, and in an effort to keep my biases somewhat in check, I offer the following reasons (in no particular order of importance) why a claimant hires a lawyer for his or her claim.
Claim is denied.
This is obvious. An insurer receives a report of injury, presumably investigates the facts and determines that there was no injury arising out of and in the course of employment and/or no compensable incapacity related to an injury. Certainly in questionable cases; such as psychiatric stress cases, occupational exposure cases or unusual or novel fact scenarios, denials are in order. Yet, many clients come to me, denial in hand, where there has been absolutely no investigation by the insurer whatsoever! I find the instances of groundless denial are less likely with local, in-house claims departments and more likely with TPA's (third party administrators) or anonymous, overburdened claims representatives in a state several time zones removed from the site of the accident. A certain amount of profiling occurs; newly hired workers, young or single workers, lower income workers and Friday injuries reported on Monday often result in a denial. Some states such as Massachusetts, encourage early payment even before an investigation is complete by allowing the insurer to commence payments in a timely fashion and have those payments considered "without prejudice" thereby allowing the insurer to cease payments and set up its defenses once its investigation is completed.
In Massachusetts, an insurer that makes payment within 14 days of a lost time injury is allowed 180 days within which to either accept liability or terminate benefits and deny the claim. This is a highly valuable tool for the insurance companies and I have noticed in Massachusetts, where I practice, that since the payment without prejudice procedure was implemented, I am seeing new clients not at the very early stages of the case, but after the insurer ceases benefits several months into the disability.
No contact by employer or insurer.
Emily F. a 15-year employee of a commercial laundry came into my office with a heavily bandaged right hand, having the tip of her index finger traumatically amputated by a chain driven conveyor belt three weeks before.
In the 21 days after her injury, she heard from no one! Her calls to her employer, (placed by a friend as Emily speaks no English) went unreturned. I finally got through to someone and after several further telephone calls, I actually spoke to a claims representative who "hadn't got to it yet." While Emily's story may be an extreme or rare example, many variations of this scenario exist. The employer reports the accident to the insurer and assumes the claim is processed. In other cases the injury is reported to the insurance broker who may file a report with the home office of the insurer, not knowing that this claim should be handled in some remote claims office.
While many insurers adhere to an "immediate contact program" requiring claimant contact within 24 hours of a reported lost time case, more and more do not. Every day the hurt, financially impacted, worried worker goes without any contact from an insurer the chances increase that the call he or she places will be to a lawyer, not to the employer.
Overbearing or intrusive contact by the employer.
This scenario is actually the polar opposite of #2.
A significant number of clients come to me after hearing from their employer:
- that they must come in with a doctor's note every week, or
- if they are not back at work in a week their job will be filled, or
- they hear from a coworker that their job has been posted, or
- their employer demands that they come into work even it its "sitting in the office opening mail", or
- their employer demands to know when they will be back to work, or
- their employer refuses to tell them the identity of the insurer, or
- variations of this theme.
If only the employer's human resource or other person would call the employee and say:
- How are you feeling? and
- Your job is here for you and everyone is anxious to see you back as soon as you are able, and
- We've reported your injury to Hardball Mutual and give the address, telephone number, claim number and name of claims representative, and
- If you don't hear from them in ____ days, call me and I'll look into it, and
- Let us know how you are doing and if you need anything until your first compensation check arrives, and
- If you need accommodations as you recover, let us know and we will work with you and your doctor to help you back to work.
I would have less clients if this were the universal response by the employer to an employee with a lost time injury.
Bills unpaid, prescriptions unreimbursed. The check is late.
It is becoming more common for insurers to deny or reduce medical bills for treatment of legitimate accepted work injuries. The proliferation of utilization review agents or managed care companies, while cost saving measures, often leads to bills being denied, or put into collection. Many workers must pay for their prescriptions up front and submit receipts for reimbursement. Dealing with these issues is often low on an overworked adjuster's priority list. Hence, many clients greet me for the first time with a dunning letter from a medical provider's attorney or collection agency in hand or with several hundred dollars worth of unreimbursed prescription receipts.
Late checks are the more common and more avoidable situations that cause an injured worker to seek the advice of an attorney. Injured workers, when employed, are accustomed to getting their paycheck on a regular basis every week or every two weeks. Workers' compensation, while designed to operate the same way, frequently does not. Checks arrive on a haphazard schedule sometimes three or four weeks after they are due. An injured worker already struggling to get by on a percentage of his previous take-home pay is now faced with the uncertainty of when his check will arrive in the mail. Telephone calls to the insurance claim department are often met with voice mail prompts which cause even more frustration. Once connected to someone, our clients are often met with indifference from the claim representative or payment clerk. I've seen instances where compensation checks are inexplicably mailed to an obsolete address or the claim is deleted from the computer's automated pay schedule or my client is told that the "check is in the mail" only to have it arrive five or six days later, postmarked the day before. It does not take long for a frustrated claimant to decide that having an attorney dealing with the insurance company is preferable to navigating the bureaucratic maze alone.
The amount of lawyers advertising on television, especially during daytime hours is staggering. Polished, professional ads giving toll free numbers promising aggressive legal representation can be very attractive to someone recovering from injuries at home. The U.S. Supreme Court has liberalized the use of the media in soliciting legal work and in some instances direct mail "advertising" is sent to victims of injuries where there is a public record of the accident. This method of obtaining business is still widely debated in legal circles and most attorneys refrain form these activities.
Advice of friends, family or medical provider.
The injured worker is surrounded by family, friends and doctors, nurses, therapists, etc., many of whom, after discussing the accident will advise the retaining of an attorney.
Many clients come to see me not knowing why they need a lawyer, only that everywhere they turn someone asks them if they have a lawyer yet.
It is my practice to tell potential client up front that workers' compensation laws and procedures can be quite complex and the insurance companies know the rules and so do I. I explain what they can expect from a procedural as well as a benefit standpoint and also inquire as to other subsidiary issues such as employer misconduct, a potential third-party liability, as well as integration with other benefit sources such as long-term disability, Social Security Disability and so forth.
I find that I frequently have to also educate my client as to what he or she cannot recover in a workers' compensation claim.
May clients are under the mistaken assumption that the retaining of an attorney will require them to "sue" their employer which will at some point, generate a settlement.
I find that clients directed to me by well meaning acquaintances often times have unrealistic expectations as to what an attorney can do for them. Many other times they are simply coming in to be educated and seek advice as to a system which up to that point is quite unfamiliar to them.
Lack of modified duty work/employer harassment after return to work.
Carol L. came to me recently having returned to modified duty at a hospital after a spinal fusion. She takes medication which effects her concentration and attention. Her immediate supervisor seems to resent having to adhere to her physical limitations and Carol reports that she is being criticized, written up for minor infractions, and in general harassed by her unsympathetic superior.
Doug B., a laborer for a municipality, reported even more egregious conduct upon his return to light duty. His co-workers resent having to bear the burden of his lifting restrictions and call him names, use profanity, and in general behave in typical adolescent fashion.
Several times a year, a new client will come in complaining that the light duty work promised by the employer was not as advertised or that shortly after returning to modified work he was laid off, transferred to an undesirable location or given an unpopular shift. While there may or may not be valid business reasons for these situations, an employee still recovering from a work injury will often leave work and pursue a claim for further compensation benefits once the relationship with his employer has been damaged
This is similar to #7. On the job injuries do not occur in a vacuum. The less satisfied the employee is about his or her job before an accident, the more likely a work injury will lead immediately to the obtaining of a lawyer.
Experience tells us that job dissatisfaction correlates with extended absence due to a work-related injury. A mutually harmonious employer/employee relationship should produce an environment where the injured worker will want to return to work as soon as possible. Conversely, an employer with a marginal or sub-par employee who gets injured often goes out of its way to use the absence as a means of getting rid of an undesirable worker. The risk of increased insurance costs is a fair tradeoff for the value of replacing a problem employee
Paul T., a longtime employee for a large company, came to me recently with a claim for work-related depression. His personnel file was replete with disciplinary actions and union grievances (some successful; some not). His history was one of daily harassment by his superiors. Among the insurer's defenses was that this was that this was a retaliatory claim by a disgruntled employee on the verge of being terminated for cause. The workers compensation forum in such a case often becomes a "trial within a trial" concerning the underlying labor relations issues that give rise to the industrial injury claim.
Loss of health insurance; other benefits.
In many jurisdictions, fringe benefits such as health insurance are not protected in the event of a work related disability. Many employers will maintain these benefits during an absence but many more do not. Certain labor provisions such as the Family Medical Leave Act (FMLA) or COBRA may temporarily preserve or maintain benefits during an absence or require the employee to pay for these benefits. I have obtained more than several clients based on these issues.
Many of my clients are under the impression that following a work-related disability, their jobs will be there when they recover and/or their health insurance and other fringe benefits will remain in place. Unfortunately, such is not always the case. Many employers will continue benefits for a defined period of time and may or may not hold open a job indefinitely. The filling of his or her position is frequently viewed by the injured worker as abandonment by the employer. Similarly, the termination of health insurance either by informal correspondence or by the legalese of a formal CCOBRA notice will cause not only great financial worry but will bring us new clients to explain to them what all this means. FMLA forms are confusing to most people (lawyers included) and the 12 week unpaid leave provisions cause much concern and confusion
The accident that never should have happened.
Prevention of on the job injuries avoids the entire problem of workers' compensation costs including attorney involvement. Every company should have a safety program as well as safety awareness.
I have obtained countless clients injured in the most preventable ways. I have had three clients in the last five years suffer serious injuries stocking shelves without any stepladder or other device. They would climb up on the shelves and a fall would invariably occur. Poor maintenance of equipment, sloppy housekeeping, lack of basic safety devices, all lead to preventable accidents and injuries.
Of all the reasons set forth in this article, it is the accidents that should never have happened that produce the most clients for workers' compensation attorneys.
Action Plan for the Employers
Employers can take an active role in preventing accidents. Once an employee is injured, the employer's positive participation in the post-injury experience can reduce the need for injured workers to consult attorneys, which may decrease workers compensation claims costs (and, ultimately, decrease the employer's premiums.) Consideration of the Top 10 List above can suggest an action plan for employers.