Workplace trust, fear of claim denial and injury severity are the main reasons for attorney representation in workers’ compensation claims, said Bogdan Savych, a public policy analyst with the Workers Compensation Research Institute (WCRI).
In a recent study of 11 states – Texas, Wisconsin, Pennsylvania, Michigan, Connecticut, Florida, Massachusetts, North Carolina, California, Tennessee and Maryland – WCRI reviewed almost 7000 claims records with over seven days of lost time and conducted phone interviews on those claims that were 2 to 3 years post-injury to determine why workers sought attorney representation.
The results indicated attorney involvement varies greatly from state to state, Savych said.
According to the survey, 50 percent of injured workers in Maryland hired attorneys – the highest percentage of the states studied. Maryland was followed by Tennessee at a little over 30 percent, California at almost 30 percent and Massachusetts at 25 percent. Florida rounded out the top five with 23 percent of injured workers hiring attorneys on their workers’ compensation claims.
The study results indicated Texas workers were the least likely to hire an attorney, just 8 percent did so on their injury claims.
“In cases where workers would have received statutory benefits without an attorney, [representation was] probably unnecessary,” he said.
Avoiding unnecessary representation can be beneficial to all parties involved in a workers’ compensation claim.
The claimant does not have to spend time seeking out an attorney and does not have to pay attorney fees out of the benefits. Employers also benefit by lowered costs and workers’ compensation carriers benefit by having reduced caseloads, Savych said.
An employee is more likely to hire an attorney in a workers’ compensation case when he or she feels threatened, he said. Some threats may come from the character of the employment relationship; employers can mitigate these threats and reduce litigation, the public policy analyst said.
Workers are much more likely to hire attorneys if they fear being fired. In Florida, workers were twice as likely to retain an attorney when job security was threatened, Savych said.
A supervisor’s belief about the injury claim was also an important factor. Twenty percent of injured Texas workers were more likely to be represented by an attorney if they felt their supervisor didn’t believe their claims were valid, the study found.
According to Savych, other threats arise from the claims process, a factor claims managers may be able to mitigate.
The WCRI study found there was higher attorney representation if workers thought their claims would be denied either because of a denial notice, a delay in payments or perceived through communications with the claims manager. In those instances, workers were 34 percent more likely to retain attorneys versus 5 percent where there was no perceived denial, Savych said.
Serious injuries were highly correlated with attorney involvement, the study found. This is a factor unlikely to be mitigated by employers or claims staff, he said.
According to Savych, other factors that increased the likelihood of attorney involvement in workers’ compensation claims included:
- High school graduates compared to college graduates
- Workers who chose to be interviewed in Spanish
- Workers with less than one year job tenure compared to workers with more tenure
- Low back conditions compared to fractures
Age is also a strong predictor of attorney involvement, older workers were more likely to be represented, he said.
Unions and industry type had little effect on whether an employee hired an attorney, the study found.
Savych said there are potential strategies that employers and claims organizations can employ to avoid unnecessary attorney involvement in workers’ compensation claims. These include:
- Supervisor training
- Distributing educational materials
- Clear and timely communications
- Eliminating system features that encourage payment delays and perceived denials
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