6 things that Carriers and Employers want from their Workers Comp Defense Counsel

When I started defending workers comp claims 25 years ago I learned very quickly what Carriers and Employers wanted from me - - not because I was prophetic in any way, but because adjusters would tell me every day about what they DIDN'T like about other defense attorneys.  Seeing an opportunity here, I merely kept track of what adjusters didn't like and made sure that I did the OPPOSITE of the complaints I would regularly hear. 

In an effort to share with you the collective wisdom I gathered from those formative years (and to paraphrase Rod Serling), I am submitting for your approval just 6 things I believe Insurance Carriers and Self-Insured Employers are looking for in their defense counsel. 

 1.         Independent Thought

Workers compensation defense attorneys often have a habit of simply informing clients that the "going rate" for a standard-type of injury is this or that.  While the client certainly needs to know what the "going rate" is for a similar injury, that cannot be where the analysis ends.  When I represented TWA years ago the claims manager there once told me: "Brad, I can hire trained monkeys to tell me to pay the "going rate" for standard types of injuries.  I pay you to do better than that."

I define "Independent Thought" to be analysis applied to a particular claim, with analysis on not only whether the claim is or is not compensable, but also strategies to resolve the claim more favorably than simply paying the "going rate".  This means laying out a game plan for taking a position that should be favorable for the employer and what steps are necessary to (hopefully) reach that position.  It doesn't always work, but I know clients appreciate this analysis on the front end of a claim in order to evaluate the best way to defend the claim.

 2.         Zealous Advocacy

When the vast majority of claims are compensable, defense attorneys (like insurance adjusters) can easily develop the "process and pay" mentality.   I define this as an approach that simply looks at what it will cost to pay the claim and taking the fastest steps necessary to pay the claim, close the file, and move on to the next claim.

Even on compensable claims, I have found that clients are always happy to receive ( and even expect) a game plan for asserting possible defenses to a claim along with a plan to resolve the claim quickly, combined with recommendations on how to best reach that goal.   To promote their $1 Dollar Menu a few years ago McDonald's had a billboard that said: "$1 Legal Advice - Plead Guilty".  When I hear of a defense attorney simply saying: "Claim is compensable, pay this amount" I always think that this is the workers comp equivalent of simply saying "Plead Guilty".  Even if the Employer should pay on the claim, the client wants zealous advocacy from the defense attorney on how to best reach that goal.

 3.         Regular Substantive Communication

This may be third in order here but it is probably first in importance.  Also, this point can be broken down into 2 parts - - regular communication and substantive communication.

I've had a plethora of adjusters over the years tell me war stories about their prior counsel who would never....ever...do anything on the claims.  I had one adjuster tell me: "All I ever heard from that attorney was the sound of crickets."  The defense attorney who does this not only violates the ethical duty to keep his or her client properly informed on the matter, but this is also an attorney who is dealing with a future ex-client.

Employers and Carriers also want substantive updates that demonstrate how the attorney is best representing the Employer.  Communications, whether by letters or through now-common emails, should always encapsulate where the parties are on a claim and where the defense attorney intends to take it.  Letters or emails from the defense attorney that say nothing more than "Look at all of the creative ways I have billed your file this month" is NOT what Employers and Carriers want from their counsel.

 4.         Understanding what constitutes a “win”

One common complaint about workers comp defense is “the employer almost always loses”. Of course, that begs the question...just what is a “win” and what is a “loss”?

I try to resist watching legal shows on television because even when such shows are deliciously complex, the outcome of most every legal proceeding on TV is either “guilty” or “innocent”.  In those cases where a civil court is involved, most every verdict is either for “millions of dollars” or “nothing”.  Rarely is anything portrayed as being resolved somewhere in between these extreme points when, in reality, almost everything is resolved within this nebulous middle ground.  I guess that's why it's called fiction.

In workers compensation claims, the vast majority of such claims are going to be found compensable by the state division of workers compensation.  As such, to borrow some analysis from Monopoly, we're not faced with a choice between Baltic Avenue or Boardwalk with hotels.  Rather, we are more often than not fighting over whether we can buy Pacific Avenue for the price of St. Charles Place.

Since the vast majority of claims are settled, I often wonder if the client views the settlement as a “win” or a “loss”.  Over the years I have seen Carriers and Employers examine the relative value of a settlement by looking at the settlement through the lens of the following criteria:

• Is the settlement is “fair” in light of the evidence available and in light of the applicable jurisdiction?  (e.g. Illinois claims settle for far more than Missouri claims even if the injuries are identical)
• Was the claim resolved within the established reserves?
• Were the defenses that were raised truly sufficient to obtain a non-compensable award our were they only good enough to use for settlement negotiations?

 5.         Creative Attempts at Problem Solving

All Carriers and Employers know that most claims are compensable.  Rarely have I had clients who expected an award of “not compensable” on every claim or even on most claims.

With that in mind, though, most clients expect the defense attorney to at least examine and evaluate all potential defenses in order to evaluate how the assertion of such defenses might impact the value of the claim. 

Despite the lofty views that most attorneys have of our profession, most of our jobs can often be distilled down to this concept - - we help our clients avoid obstacles.  While this statement is self-evident when one practices criminal law (obstacle - - the State wants to put client in prison), such analysis is rarely applied to workers comp defense. 

For example, if a claimant simply states “My injury occurred on the job”, this may or may not actually be the case.  As such, my job as a defense attorney is to identify factual, medical, and/or legal evidence that might persuade the Judge that the “work-related” component to the employee's injury is not as clear-cut as the employee may believe.

I had one case years ago where the employee claimed he was injured on the job.  In his deposition he admitted that he liked to “ride the bull” in rodeos.  It occurred to me that there must be some association that keeps track of who rides in professional rodeos so I contacted the Missouri Rodeo Association and requested records pertaining to the claimant in question.  I was “shocked” (insert mock assertion of surprise here) that the claimant's medical care ALWAYS seemed to occur exactly 1 day after he competed in professional rodeos.  After providing this information to opposing counsel the claim was quickly dismissed.

My point - - the employee's assertion that he was hurt on the job would normally be sufficient to prove compensability in the absence of other evidence, but my job was to find that other evidence and solve the compensability problem.  Carriers and Employers want their counsel to explore all possible defenses, even if the probability of success is low, because occasionally (like in my rodeo case) the defenses actually work out.

 6.         Stick to your Guns

If you ask an adjuster about his or her greatest pet-peeve when it comes to dealing with defense attorneys, one example is most often cited: “I hate it when my defense attorney tells me at the beginning of the case that the claim is only worth $500 and then, on the day of trial, he tries to convince me to pay $20,000 to settle it.”

Years ago I had a client who pulled files from another attorney and sent them to me. As I reviewed the files I saw a consistent theme...the prior defense attorney would often say: "This claim is a fraud and I wouldn't pay anything more than $500 to settle." As I reviewed many of these files I didn't see ANY evidence of fraud. I was then in the unenviable position of having to tell the client that I thought these claims were NOT fraudulent and I provided exposure estimates that were far higher than $500.

I was concerned that the client would say: "Gee, Brad, I liked the advice from the prior guy a lot better." However, this did NOT happen. Instead, I heard this: "I thought the prior attorney was simply telling me what I wanted to hear. That's why I pulled the files and sent them to you."

The lesson I learned here...clients want the attorney's honest assessment of the claim and they don't want the defense attorney to simply tell them what the attorney thinks the client wants to hear. If the client can't rely on my analysis then I'm not doing my job correctly.  If the case is worth $20,000 I must tell this to the client as soon as it becomes possible to arrive at such a valuation.  If I wait until the day of trial to tell the Carrier or the Employee about the true value of the claim, the client will think that I am simply afraid to take the case to trial.

CONCLUSION        

One could easily distill all of these comments into a single concept - - there must be a good working relationship between the defense attorney and the Carrier/Employer, one that is based on shared values, frequent communication, and deliberative communication (meaning the attorney and the client jointly develop the outcome goal mind for a particular claim and then they both take the steps necessary to reach that goal).  If this ideal matches reality, both the defense attorney and the Carrier/Employer will probably be working together for a long time.

About the Author

J. BRADLEY YOUNG is a partner with the St. Louis, Missouri law firm of Harris, Dowell, Fisher & Harris, where he is the manager of the Worker's Compensation Defense Group and represents self-insured companies and insurance carriers in the defense of workers' compensation claims in both Missouri and Illinois.  Brad is a frequent Conference Speaker and can be regularly heard on KMOX radio in St. Louis discussing a wide variety of legal topics.  You can email Brad at byoung@hdfh.com .

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