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Workers' Compensation? Let's see, that is where workers are out to 'take' an employer, or an insurance company (surety)
for all the money that he/she can, right? If you answered "yes" to this question you are probably not someone who has
been unlucky enough to be injured on-the-job.
I certainly do not pretend to disagree with the position that there are workers out there who do try to take advantage
of the system. Likewise I will agree that over the years some of these 'injured workers' actually did, to one degree or
another, take advantage of the system. The concept of 'taking' presumes, of course, that living on a minimum monthly
stipend, far below poverty level, is taking advantage of anything. Certainly for some that is a possibility. The reality,
however for most seriously injured workers, is that as injured workers progress through the 'system' they literally lose
everything that they have worked for all of their lives.
'Back in the day' I actually use to spend most of my time defending claims for employers and insurance companies that
some could, and many did, label as fraud. I was the 'pit bull' litigator--the designated hitter for one of my clients. I
have sub-rosa videos of 'injured workers' that could be utilized to prove preconceived notions of 'injured workers'
trying to take advantage of the employers and insurance companies. Frankly the videos are better than those that are
shown on television 'news' programs that harp about workers compensation fraud.
To the best of my knowledge I was the first, and maybe the last, attorney to actually show a video clip to the Idaho
Supreme Court during oral argument. The video was one that had been shot in a 'sub-rosa' manner of a worker who was
trying to take advantage of the system. That worker eventually was not allowed to take advantage of the system. He actually
suffered as a result of the some 13 or more surgeries that he went through in an attempt to prove his disability.
Certainly he had a disability, but it was not near the one that he tried to make it into and his attempt backfired on him
completely. I was instrumental in obtaining a video of an injured worker in a Colorado case that led to criminal fraud
charges against that person.
On the other hand I have seen 'doctors' write 'insurance medical exam' reports that were nothing more than paid hatchet
jobs with no medical basis in fact. Anyone that believes these examinations are 'independent' should consult a dictionary.
The vast majority of these doctors believe that the Hippocratic Oath is the name of a race horse. I have even had one doctor
tell me, under oath, that he never took that oath and that as a matter of fact he didn't believe in oaths. Of course when
I pointed out to him that he must not have meant it when he was sworn under oath to tell the truth at the beginning of
his deposition he didn't respond well.
Of course most of these report writers are retired, a number have lost their licenses to practice medicine, and a great
many 'need' to make a living. It is easy for them to make a comfortable living in the Workers' Compensation battleground.
Insurance companies are always looking for a doctor to write a report for them.
Granted every now and then one will come along and do a good job for both sides in a dispute. However, don't look for
that one to be around for long. Insurance adjusters are not stupid enough to continue to use a doctor who doesn't regularly
file a report stating (1) no causation or (2) no condition that needs treatment. Everyone except for the injured worker
is usually aware of who these doctors for hire are and their reports come as no surprise to anyone.
As will be discussed further, I have also seen insurance adjusters do egregious acts in claims management, and I have
seen employers fire employees for having a work related accident. So, I have seen all sides of the process.
For years I was the only attorney in Idaho that had actually represented all possible parties to a Workers' Compensation
proceeding. It was good for me, and my clients I believe, because I had to take the same position every day. I couldn't
say one thing one day and another on another day. I didn't have the 'luxury' of saying that "I have never represented
injured workers and I am proud of it." I have represented injured workers, insurance companies and employers, self
insured employers, and the Industrial Special Indemnity Fund. I don't know if any other attorney can claim that today
because I really haven't taken time to find out. I do know that I know of at least one attorney who brags that he has
never represented an injured worker.
By the way, if you are an employer, and you think that the attorney hired, or employed, by your insurance company to
defend a worker's claim for Workers' Compensation benefits against your company actually represents you, well you best
think again. Idaho's Bar Counsel has determined that the attorney hired by the insurance company, in a Workers' Compensation
case, (as opposed to a liability insurance case) owes no duty to the insured employer. His/her sole client is the insurance
company.
That should make you pause if you consider that costs and fees incurred in the defense of a Workers' Compensation matter
do not affect your 'mod' factor in determining your premium. Let's look at a hypothetical. If, in a contested case, it
will take roughly $10,000.00 to successfully defend the Workers' Compensation claim against you and if the same claim
can be settled for the same amount, or even a few thousand more, it is a good bet that the claim will be settled.
The reason for this is that the $10,000 expended to successfully defend the case is not capable of being passed on in
the form of an increased 'mod' factor and resultant increased premiums, but the settlement cost can be passed on.
Remember it is not about right or wrong. It is about the bottom line.
The next time you have a claim that requires the insurance company to appoint an attorney you should consider asking the
attorney to document in writing that he/she has an attorney-client relationship with you, and not just the entity that
writes his/her paycheck. It would also be a good idea to ask the same attorney what his/her billing arrangement is with
the insurance company and find out if there are any limitations upon how many hours he/she will get compensated for while
working on your defense. Is there some sort of a 'risk sharing' going on with the attorney and the insurance company?
You might also consider asking the attorney if he/she is an employee of the insurance company. That is certainly a strange
concept if one presumes that the attorney is to represent the employer. But since that is not the case, well it is still
a pretty strange concept. Oh, one last question you might ask is did the attorney defending the claim get his/her job
because of political connections or expertise in the field of Workers' Compensation.
I think that if the attorney will answer you on these relatively simple questions you just might be surprised. Certainly
not all insurance companies and attorneys who do their work will have problems providing this information to you. However,
only the insurance company or attorney that you are concerned about is the one defending the claim against you and he/she
might have a problem.
After many years of 'defense' work, I came to the stark realization that, in reality, the number of workers who try to
take advantage of the 'system' is extremely, extremely, extremely small, and in the grand scheme of the system actually
insignificant. Much like one ant at a picnic such 'injured' workers are inconvenient and an irritant, but yet nonetheless
insignificant in the grand scheme of the picnic.
Over the past years I have been a presenter in a large number of seminars on Workers' Compensation. These presentations
primarily occurred, or course, when I was doing 'defense' work for employers and/or insurance companies. In case you have
not noticed, seminars are produced for audiences and the audiences are typically white collar workers, medical professionals,
rehabilitation professionals, and (egad) attorneys.
After all whom among you actually perform manual labor in your day to day work? The reality is that 'workers', as I use
the term, are too busy working to come to a seminar such as this one. Even if they were not too busy they probably could
not afford it, their employer would not let them come, they wouldn't have heard about it, and probably they would feel
that "I will never get hurt" on the job. So, why go. Thus the 'market' for presenters at injured worker oriented seminars
is limited.
So, you may ask yourself, as I asked myself, why I was asked to speak at this seminar. Frankly, I figured that the reason
must be my overall sex appeal! However, since I am here, and you are here, I am going to expound on certain aspects of
the Workers' Compensation battleground that I think need to be addressed. I believe these aspects are often overlooked or
avoided in discussions surrounding Workers' Compensation. Few ever dare to tell the king he has no clothes, to go against
the grain, to buck the system, to swim up stream; well you get the point!
The Good Guys:
Out of the 730,386 workers, the Commission's report reflects that there were 44,399 Workers' Compensation claims filed.
Yes that is a lot of claims but it must be remembered that these claims very widely from stubbed toes to injuries causing
death. This number reflects that roughly 5 employees out of every 100 employees file a Workers' Compensation claim of
some sort in any given year.
Perhaps far more significant is the fact that out of the 44,399 Workers' Compensation claims filed only 6,990 involved a
loss time claim. This figures in and of itself is less than 1% of the identified number of workers in Idaho. In comparison
to the 6,990 lost time claims there were only 117 hearings, statewide, reported in the 2007 report. While the hearings
held were most likely not related to the specific injuries suffered in the given year the number seems to have remained
fairly constant over the past few years.
Given the fact that at least 50% of the decisions are in favor of the injured worker, after a full hearing, that means
that less than 1% of the injured workers who file claims and have contested hearings are trying to abuse the system.
When one considers that fact that in a fair percentage of the decided contested cases the issue of compensation comes
down to factual or medical issues, that could go either way, the bottom line is that the number of workers who try to
take advantage of the system is far less than 1%.
The ultimate fact of the matter is that what 99 Percent (or more) of injured workers want from a Workers' Compensation
claim is fairly simple and straight forward. They want:
1% Of The Claims Adjusters.
This dove tailed nicely with my refusal to enter into an agreement with a major insurance company client to only represent
its insured employers (whom I felt I actually represented) for a set 'not to exceed' number of hours. In other words, if
the proper defense of the claim required more hours than were allocated by the insurance company, in a generic manner to
every one of 'its' claims regardless of the degree of difficulty or involvement, I would have to work it in on my own time.
It's called 'risk sharing'. That is fine but I think that I would like my attorney (oh, forgot it is the insurance company's
attorney) to not have to choose, when dividing up available time and energy, between working on a case that he/she is
going to get paid on and a case where he/she is 'risk sharing' and not going to get paid.
When I asked the insurance company representative if they were going to inform their insured employers of this limitation
they said "no." So after what ultimately turned out to be bad advice (the subsequent Bar Counsel later changed the Bar's
position on this subject) from the then Idaho State Bar Counsel, I too said "no." In reality I would have said the same
thing even without Bar Counsel's input, but it would have been much more difficult.
During this the past decade there is one factor that stands out above the rest when it comes to 'luring' unsuspecting
injured workers into the tentacles of my deep dark law office. That one factor is rude, crude, and down right 'bitchy'
claims adjusters. Claims adjuster who just will not even be polite to injured workers, claims adjusters who won't return
injured workers telephone calls, claims adjusters who won't grant injured workers reasonable requests for medicine, or
physical therapy, or even a doctor's appointment, and claims adjusters who yell at and argue with injured workers just
because it happens to be a 'Tuesday'.
Historically my major source of new clients coming into my office seeking help have been the grouches called claims adjusters.
If, on a whole, claims adjusters would just be professional, even if they can't be pleasant to injured workers, the vast
majority of injured workers would never see the catacombs on an attorney's office.
Take a moment and try and remember the cruelest and abusive school teacher, or other person in authority, that you have
ever been exposed to. Got him/her pictured? Well, just put the average claims adjuster's face on that person and there
you go. That is the truth. Universally even those injured workers those who are willing to be beaten and abused because
they are used to being treated that way in today's 'at-will' work environment, will ultimately be confronted with the
claims adjuster's wrath.
The confrontation may not come on early in the process, but it will come, sooner or later. There is no question that it will
ultimately occur because the bottom line in all Workers' Compensation is the dollar. Fairness and 'the right thing' have
no line on the balance sheet of the adjuster. You are kidding yourself if you think that has any part in the analysis.
The only question in this inevitable scenario is whether the injured worker will give in and go on his/her way, or whether
the injured worker will retain an attorney to be brought into the dispute.
If only claims adjusters would remember that they are employees themselves and that when it comes to money their 'corporate'
bosses will turn on them just as fast as they will anyone else. One of the most interesting cases I have observed over
the years, and there have been a number, was one involving a claims adjuster who had so many open claims that she had to
work overtime and probably off the clock to get her work done.
Of course she did so willingly because the insurance company was good and would remember her and help her. In keeping up
and doing her benevolent masters tasks, the adjuster ended up with carpal tunnel or some other 'nonexistent' type of condition.
The insurance company denied the claim and forced the employee, now their former employee, to hire an attorney and fight
to obtain benefits. This scenario is not limited to one insurance company. It is the nature of the beast. Claims adjusters,
although they seem oblivious to this fact and believe that 'it will never happen to me' when doing their master's directions,
are ultimately and inevitably a disposable quantity in the market place.
I have personally witnessed the breaking of claims adjusters from being caring and kind people to short tempered and
literally cruel people. The process is one of overwork, being forced by 'orders' into ignoring the legitimate complaints
of the majority of injured workers, and learning to say NO. Just say, no. There use to be a local ad for a Spokane law
firm that had a little cartoon. In a comical way the ad showed adjuster school and adjusters being taught to "Just say
No." It is a sad but true fact that the television ad was essentially a correct rendition of the end result of the
'breaking' of a claims adjuster.
Finally, I know you will be 'shocked' by this, I have also been exposed to claims adjusters who actually try to impact
and direct the medical care of the injured worker by manipulating the treating doctors. That common practice is one of
the most troubling, of many, in the Workers' Compensation system.
90% Of The Employers.
These employers are not capable of being categorized as to type of business or even size of business. The respective
classes of employers range throughout all types and manner of employers. To find the good, the bad, and the ugly of
employers, one only need speak to a few employees, or listen to a few injured workers, for a given employer and you will
recognize those employers in this 10% bad section. These employers still have employees because reasonable wages and
benefits are always hard to find and such is the case now. The most recent report indicates that unemployment in Idaho
is up, and heading even higher.
Employers that fall within the ugly 10% are just mean and despicable types. The sad part of this characterization is the
'employers' have to work through real people and it is these people who sell themselves out for their 'employers' that
ultimately do the evil to their fellow employees. They may think that they are better or different than the 'injured
employee', but someday they will find out that they are just as disposable as these 'lesser employees' that they trod
upon.
The ugly employers begrudge an injured worker's right to claim benefits for an injury, they may fire the injured employer,
they will think up bogus type work, they will force injured workers to do menial and mind numbing 'make work', and then
when the opportunity presents itself they will fire the injured employee and claim it was for some legitimate reason. I
am continually amazed at the number of people who act as hatchet wielders for the employers of this type and who, sooner
or later, come face to face with the hatchet themselves and then run crying to an attorney about their 'rights'.
In Workers' Compensation the ugly employer signals are classic:
Next time a worker is injured on the job, remember that 99 Percent of the time he/she just wants to get well and get back
to work. Look at the insurance medical examiner's report with a critical eye, encourage your insurance company adjuster
to try and be at least professional, and forget about punishing a worker for getting hurt. Getting hurt is punishment
enough. It will 'pay' in the long run. Employees treated as each of you would like/want to be treated in a similar
situation will return to work quicker and be better employees because of the experience.
Following the fundamental principle of:
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Take a moment and look at some facts. Startling idea? Well, actually it is to most persons involved in the Idaho Workers'
compensation battleground. Make no mistake about it there is a significant number of workers throughout Idaho, unlucky
enough to have suffered an on-the-job injury, it is indeed a battleground. Sadly, it is often literally a life (as they
know it) and death (in some instances this is due to disputes over medical care) battle ground. This battle ground
carries with it enormous stakes for injured workers and their families. If the Workers' Compensation system worked as it
was designed to work all would be better off in the long run.