Using Defense Attorneys to Defend Work Comp Cases

Defense attorneys play a crucial and vital role in defending workers’ compensation cases. When used properly, they can reduce workers’ compensation claim costs and provide a means for settling on countless claims. They should be used only when necessary. This includes a careful review of the claim and selecting the right attorney. This includes using various metrics to choose the right firm and attorneys within that office for a case.

Use of Quarterly File Reviews

Defense attorneys interested in gaining the trust of a claims team should be open to attending file reviews. During the file review process, the attorney should know more than the basics of a claim – the employee’s name, the nature/extent of their work injury, current treatment being sought, etc. Proactive defense attorneys should go beyond the basics.  Items that should be covered during this process should include:

• Strengths and weaknesses of defenses;

• Additional activities need to occur to defend a claim successfully. This should include a rationale for other items such as an independent medical examination, surveillance, and use of vocational experts, to name a few; and

• Strategies to position the case for settlement. While some cases need to go to trial, valuable defense attorneys should have creative ideas on settling a case for the right settlement amount.

Now is the time to encourage and demand defense attorneys take file reviews to the next level.

Ensuring Proper Defense Budgets Are Set (and Followed)

A proper defense budget should be established upon the opening of every claim referred to defense counsel. Typical areas of concerns when reviewing defense budgets include:

• Demand defense counsel does not submit a “cookie-cutter” budget;

• Encourage defense counsel to keep the costs of defense within the submitted budget;

• Coordinate with defense counsel on issues that can quickly be taken care of by a claim handler. One example includes the collection of medical records; and

• Hold defense counsel accountable when unexpected costs arise.

Defense budgets are a great tool to reduce workers’ compensation costs.  It can also be used when evaluating an attorney’s performance and willingness to refer additional files.

Review the Use of Legal Assistants

Proactive defense attorneys should be aggressive when using legal assistants and paralegals when defending workers’ compensation claims.  As a general rule, billing from an attorney or non-attorney staff should only occur when a step is taken to advance a file toward hearing or settlement.  All other activities should not be billed to the file.

It is also vital for defense attorneys to employ paralegals and legal assistants to conduct routine billable services.  Items that can be included in this category include;

• Drafting routine pleadings such as a request for admission of expert testimony and discovery;

• Collecting and summarizing medical records – preparation of a medical chronology; and

• Locating potential witnesses, interviewing witnesses, and collecting evidence.

The proper use of paralegals and other assistants can promote efficiency and reduce litigation costs.  Claim handlers need to be proactive in ensuring these law firm staff members are performing proper functions.

Creating a Defense Counsel Report Card

A defense attorney report card is a useful tool to evaluate a defense attorney and drive better performance. There is no set format or criteria the claiming team can use when creating this document. There should be a certain level of objectivity.

• Timeframe for the acknowledgment to file referral;

• The time frame for receipt of the initial status report and frequency of subsequent reports; and

• Timeliness of litigation budget and precision of the budget compared to actual defense costs incurred.

The list of criteria is endless. The attorney report card can be an evolutionary process that is developed over time.  Use of the metrics can be provided to the attorney quarterly and discussed at the time of file reviews.

Conclusions

Claim handlers will always rely on defense counsel in workers’ compensation cases. They play an essential role in providing guidance. This includes using file reviews, proper budges, support staff, and creating defense counsel report cards. When deciding to refer a file for defense, the claim should examine the firm and attorney’s claim handling practices to manage requests better and avoid high costs.

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