17 Ways to Win Your Claims in Workers Compensation Litigation

02 Feb, 2021 Rebecca Shafer


Statistics prove litigated workers' compensation claims cost the most. In this article, we will use the broad definition of litigation to include any claim where the employee has hired an attorney, regardless of how the claim is settled, whether by agreement, workers compensation board decision, or in the courts. Here are some suggestions on how the employer and/or the insurer can have a positive influence on the overall cost of the claim.

The First Steps in Controlling Litigation

Any time an injured employee hires an attorney, you should immediately begin to prepare for the possibility of a long, drawn-out process. Some of the steps you can take include:

  1. Employ the defense attorney early on as the employee's attorney will start maneuvering the claim in the most favorable direction for the employee if they are allowed to do so. Assemble your defense BEFORE the first hearing.  Yes, do it early!
  2. Assist the defense attorney in preparing to defend the claim by providing the defense attorney with the first report of injury, the wage records of the employee, the personnel records of the employee, any witness statements you obtained immediately after the accident, and any other information that you have that relates to the employee or the injury.
  3. Get over your reluctance to offer a modified duty job to the employee. By putting the employee back to work, you diminish the plaintiff attorney's arguments that the employee is unable to work, will never be able to work, etc. Also, if handled correctly, a modified duty job offer will make the employee feel more appreciated and less likely to hold out for a “big settlement."
  4. In states where an employer can request multiple independent medical examinations (IME), an IME should be scheduled immediately. Have an M.D. prepare the cover letter to the IME doctor. Yes, it's going to cost money, but in the end, it will save money.

In states where the employee selects the medical provider and you only get one IME, an independent medical examination should be scheduled immediately after the employee has reached their maximum medical improvement. I repeat, have your MD prepare the cover letter. This will provide medical documentation that the employee has recovered from their injury and to limit the exaggeration of the injury you can expect from the plaintiff attorney.

  1. If you have any doubt about the validity of the injuries claimed by the employee, consider surveillance to verify or disprove the validity of the injuries. Have the employer review the surveillance.
  1. If you do not already have medical case management on the claim, add it if you can. Consider peer-to-peer medical review -- this is a doctor who reviews the medical portion of the file.
  1. Another way to reduce future disability value placed on the claim is to hire a vocational rehabilitation specialist to assist the injured employee in returning to work. physical therapy networks may have rehab specialists. Consider using one.
  1. Do not let your feelings be hurt; the plaintiff attorney is in for the money, and the employee is thinking about his own welfare, not what is in the best interest of the employer or the insurer.

As the Claim Progresses:

The employer's involvement in claim defense continues after the initial flurry of activity at the beginning of the litigation process.

6 additional steps you should take:

  1. After the defense counsel has obtained all the initial information, but before the discovery process begins, review with defense counsel their initial evaluation of the claim. Is the claim one that should be denied and fought all the way, or is the claim one that should be settled? Know what you defense attorney thinks before a lot of money is spent on discovery. Get ALL prior medicals early, before the first hearing if possible. Subpoena them if necessary. Yes, you can do that in most states.
  1. If the defense counsel thinks you are going to lose based on his or her initial evaluation, do not be afraid to go ahead and settle the claim before the legal bills escalate.
  1. If the defense attorney recommends the claim be defended, or recommends discovery to clarify the defense of the claim, have him to proceed timely.
  1. Do not delay the discovery process. This will only allow the employee to stay off work longer drawing indemnity payments and going to additional medical visits (even if the medical visits are not needed, the plaintiff attorney will encourage the employee to continue to treat to push up the settlement value of the claim).
  1. Keep in touch with defense counsel as the status of the claim dictates. More is better than less. If she/he isn't responsive or aggressive, get a new attorney.
  1. Always promptly cooperate with your lawyer. It will move the claim along faster.

When the Claim is Concluded:

Regardless of whether you settle the claim or the claim is adjudicated by the work comp board or the courts, there are certain steps you need to take including:

  1. Pay the claim quickly. Incurring penalties and attorney fees on top of the claim value does not do anyone (except the lawyers) any good.
  1. Only consider an appeal if the defense counsel thinks you have a viable chance at winning the appeal.   Appealing the board decision or the court decision simply because you do not like it is an expense you do not need.
  1. If the injured employee does return to work, either with or without work restriction accommodations, treat them the same as all the other employees and like nothing ever happened. If you treat the returned and litigated employee like they have the Black Plague, it won't be long before they understand they are not welcome. The employee attorney will be filing another petition for additional benefits claiming the employee is unable to work or the injury has been aggravated with the employee going back off work drawing additional indemnity benefits and incurring the additional medical expense.

Note: I usually fight long and hard before I settle if I have any inkling the claim is exaggerated. Settling quickly sends the wrong message. I always VERIFY the extent of the disability with surveillance before I settle. Seeing is believing.

By planning your involvement in the defense of the workers compensation claim, you can reduce the overall defense cost and possibly the settlement value of the claim. The employer should always take part in the defense, as the cost of the workers compensation litigation will be your cost eventually through your work comp insurance premium. Act now to control the long-term cost.

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