Humanizing Workers' Comp: The Advantages of Being Nice — 60 Tips to Make a Difference

1.         Educate.  Start with the proposition that all injured workers are hurt, scared, and broke.  Recognize this as a player in the w/c system, whatever your role – claims manager, claims rep, defense attorney, claimant’s attorney, medical provider.  Whatever you can do to explain and educate the steps in the system will help.

2.         Learn the facts of the case before requesting a hearing.  Request file material and review evidence, then decide if a hearing request is warranted.  Requesting hearings for no good reason damages your credibility with the claims professionals and takes away from the time they could spend handling files.

3.         Return phone calls and emails.

4.         Follow up to follow through.  You have 48 hours to establish trust.

5.         Trust.  Start with the proposition that an injured worker’s claim is valid and with merit.  Trust that your TPA adjusters have the knowledge and prerequisite skills to properly investigate, evaluate, and negotiate claims to a successful conclusion in fairness to all parties; trust that the plaintiff’s attorney will move forthrightly with open communications versus automatically filing for a hearing/claim petition before any discussion with the adjuster; trust that defense attorneys and adjusters alike know the culture of the employer’s business and represent them fairly and in line with client service instructions.

6.         Understand claim cost drivers.  The top workers compensation cost drivers are: (a) litigation; (b) lost time; (c) employer/employee relationship; (d) the “at risk” employee; (e) opioids; and (f) co-morbidities.  Many of these cost drivers overlap or are intertwined.  Attorneys need to recognize these cost drivers and take steps to minimize their impact, by understanding their origin and focusing on improved outcomes for the injured workers.

7.         Justice equals the “just due.”  In Arizona, we have a constitutional provision that declares, “In order to assure and make certain a great and humane compensation law in the State of Arizona, . . .”.  All states have similar starting propositions.  As a participant in the system, if we’re recognizing this as a starting point and as a theme, we should follow that in the life of the case and thereby humanize its handling.

8.         Be nice and work with the adjuster to make the case go smoothly.  Being overly aggressive just causes the adjuster to question everything you say and wastes time and money that could have gone to settling the case.

9.         Talk to opposing counsel.

10.       Do what you say you will do.

11.       Smile – each one begets one.  Put a smile on your face and, as important, in your voice, particularly when communicating by phone.  Smiling is contagious and spreads!  It puts all parties at ease and in an amicable position, at least to start.

12.       Report all injuries promptly.  Delays cost money, to both sides.  If a claim is reported late, the claimant’s attorney will need to explain why, and the claims adjuster and employer will likely have a more difficult time determining compensability.

13.       Control expectations.  As a claimant’s counsel, at the onset, perhaps as you initially interview the injured worker, begin the process of channeling and controlling expectations.  Claimants often have unrealistic expectations – from social media, friends, family, prior claims, and lawyer advertising – as to the benefits of the workers’ comp system.  Unrealistic expectations will drive resentment if the supposed benefits are not achieved.

14.       Try to work out minor issues with the adjuster before requesting a hearing.  Take the time to discuss any and all issues so they can be resolved if possible.  If the claims person is unreasonable, then request a hearing.

15.       Treat everyone civilly.

16.       Utilize teamwork mentality. We all win!

17.       Good karma. What goes around comes around.  Treat others as you’d like to be treated.

18.       Be responsive to the “at risk employee.”

19.       Don’t demonize.  As the claimant’s counsel, do not demonize the claims representative or defense counsel.  Remember that adjusters are human (well, most are) and that they have obligations within the system.  In concert with the expectations that you have channeled, they can only allow so much (e.g., indemnity benefits are set by law and only certain medical benefits get paid).  Certain benefits do not get paid, and they are working within the system of what they are allowed to pay.

20.       Have the claimant’s best interests at heart, whichever side you are on.  Steer injured workers to reputable physicians for treatment.  Making sure the claimant receives proper medical diagnosis and treatment is in everyone’s best interest, so they can get well and come back to work.

21.       Make sure benefits are paid correctly and timely.

22.       The more transparent you can be, the better.

23.       Kindness.  When someone is dealing with an unexpected, negative outcome, they deserve to be treated with patience and respect.

24.       Focus on high quality medical care.  The right medical care at the right time results in better outcomes for all.  The employee should be able to have confidence in the quality of care.  Would you send your children to this doctor for that diagnosis?  Both attorneys need to focus on making sure the injured worker’s medical care is focused on recovery and return to work.  If there is a question of confidence on the part of the injured worker, it should be addressed.

25.       Talk nicely and be nice.  Establish a rapport with the claims representative.  Talk to him or her from the onset, no nasty letters and no nasty emails.  Lawyers love to write responses to everything and that just creates more and more responses that require additional responses.  As Cool Hand Luke once said in the movie, “What we have here is a failure to communicate.”  I suggest using phone calls rather than emails that you can hide behind, etc., so that the adjuster or defense counsel gets to hear your voice.  At the end of every phone call, when you’re trying to work out something with the claims representative, ask them what you can do to help “move this claim forward” fairly and quickly.

26.       Think about settlement early and consider how it will affect the claimant’s life before recommending settlement and possibly forcing him or her to have to resign.  Review the case for exposure; is it worth the claimant’s losing a job with benefits so that you can arrange a lump sum settlement?

27.       Limit your puffing to claims you yourself can believe in.

28.       When communicating information, check for understanding after three pieces of information have been given.

29.       Empathy.  Try to understand and share the other participant(s)’ feelings.  This can lessen a tense situation and move the process more swiftly toward resolution.

30.       Explore the possibility of misdiagnosis.  Studies nationwide indicate that up to 46 percent of injuries are misdiagnosed.  If the injured worker is experiencing delays in recovery, he or she may have been misdiagnosed.

31.       Use humor.  You have taken my advice and now you’re talking to the adjuster and speaking to them on humanistic terms.   Ask them how their day is going, ask about their family, ask them where they’re located, try to establish some kind of commonality.  When the claims representative has a bad day, don’t take the bait and bark back just because they’re barking at you.  Say, “Are you having a bad day?  What can I do to help you?  Would chocolate help?”  After she acknowledged a bad day, I delivered candy bars to an adjuster with a note, “Take PRN.”  Her whole attitude changed and, of course, the entire claims floor wanted those candy bars as well.

32.       Be ethical.  Do not tell the claimant to miss appointments or lie about their pain or ability to work.  Don’t have the claimant lie to build up a case to obtain additional money.

33.       Just because you can file a motion doesn’t mean you must.

34.       Write your correspondence at an 8^th grade level.  Information needs to be consumable, not routine.

35.       My word is my bond.  Say what you mean and mean what you say.  If you say you’re going to do something, do it!  Provide updates when unable to meet deadlines and reset the deadline when appropriate.

36.       Help the injured worker get back to work.  Failing to return to work is a catastrophic event for any injured worker.  It can result in reduced life expectancy, loss of one’s home, family, and retirement.  With that in mind, defense counsel must share the responsibility for helping the employee get back to work.

37.       Use the phone.  Everybody should talk.  The adjuster needs to answer the phone and so should the lawyer.   The phone is an old-fashioned tool.  It existed before emails and texts and everything similar.  If you don’t act and talk nice, it will not help to humanize the system, it will only lead to frustration and push the injured worker to a lawyer.  Return your phone calls promptly.

38.       Consider declining representation if there is not enough evidence to pursue the case.  Sit down and discuss the case with the injured worker and determine what is best for them, not you.

39.       Know your client.  Why did they retain you for this case?

40.       Remember, you are working with an injured human.  They do more than just play the role in which they are employed.  They can also be a parent, a student, a friend, a softball teammate, a workout partner, a church advocate . . .

41.       Humanize the employer.  Employer representative (corporate and local, preferably) should acknowledge the injured employee’s injuries with an initial phone call, followed by either a letter or a card.  Explain the workers’ compensation process generally and what the employee can expect going forward.  Provide the employee with an employer contact should they need help in navigating the waters of workers’ comp, FMLA, ADA, etc.  Stay in touch (frequency as dictated by facts) until the injured worker resumes full duty.

42.       Focus on modified-duty return to work.  Modified- or light-duty work is actually great therapy for an injured worker.  Both defense and claimant’s attorneys should focus on making this aspect of the claim work.

43.       Find the middle ground.  Do not use experts to take positions that polarize the case unnecessarily.  For example, a medical exam, certain doctors always say there is nothing wrong with the claimant, or a vocational expert that will say that the person can return back to every job under the sun.  It then means that you’re going to have a situation that is polarized and then the claimant will polarize it as well, and off you are to litigation.  Think of what Noah said at the Flood – “Where’s the middle ground?”

44.       Discuss the true exposure with the injured worker.  Don’t give them pie-in-the-sky ideas about what they can expect to get in any settlement.  Make them aware of what workers’ comp does not pay for, e.g., pain and suffering.

45.       Keep your client honestly informed.  Don’t just tell them what they want to hear.

46.       Prepare the injured worker for all upcoming medical exams.  And follow up afterward.

47.       Monkey see, monkey do.  Claimants and employers alike follow your role model when dealing with each other throughout the claim process.  Realize that your words, deeds and acts are constantly being analyzed and assessed.  Make sure what you present to others represents YOU first and foremost (and not what you think you should portray as the attorney for the claimant, attorney for the client, adjuster for the carrier, etc.).  Above all be true to thyself.

48.       Address the injured worker’s fear of reinjury.  This is the biggest barrier to return to work, from both the injured worker’s and the employer’s perspective.

49.       Personalize the claim.  Every claim is not the same.  Do you really need ten years of prior medical records to appraise a claim in which there have been no prior injuries, as the employee has worked for the employer for 10 years without missing a day?  Also, encourage your employer not to post the job opening immediately.  The worker is now confronted with loss of his livelihood; perhaps loss of his health benefits as well.  Look at each claim on an individual basis and tailor the response and its handling to effectuate a humanized result.

50.       Confirm the basics . . . quickly.  Was the injured worker in the course and scope of his or her employment when the injury occurred?  How long ago did the injury occur?  Can the injured worker describe what happened in sufficient detail?  Has the employer been notified?  Were any third parties involved?

51.       Know when to hold ‘em and when to fold ‘em.

52.       The world is changed by your example . . . not your opinion.

53.       Claim decisions affect lives and livelihood.  Regardless of what lines of insurance we handle, our decisions affect lives and livelihood.  It is never just the claimant who is affected by those decisions.  Most claimants have children, family, or others using their vehicles, property, and/or are otherwise dependent on them for their livelihood as well.  This is even more so with the injured worker, whose income is totally replaced by the workers’ comp benefit (whether totally or partially disabled for a while).   All decisions should be well-thought and not made lightly given the far-reaching effects.

54.       Don’t cry “fraud” without justification.  A very small percentage of claims are fraudulently based, though many employers seem to believe otherwise.  There can be a legitimate dispute over compensability, or the nature and extent of an injured worker’s disability, without it being fraud.  Both claimant’s and defense attorneys should be mindful of this, and educate their clients accordingly.

55.       Do the right thing.  Make your mother proud.

56.       Be specific when discussing the injury.  Make sure injured worker, adjuster, and employer are all on the same page when it comes to exactly what body parts were injured and what functional restrictions are in play as a consequence.

57.       Don’t be afraid to ask for help.

58.       Be aware of the pitfalls of emotional hijacking.

59.       Know your claimant.  The old adage, “The claimant makes the claim,” is ever so true.  Know prior medical history, comorbidities, the claimant’s family and life events (how many children, divorce, financial status, etc.), and utilize that knowledge to manage the claim.  Particularly, know what the claimant’s needs are when attempting to fashion a full and final settlement.

60.       Know what other benefits are available should the claim be delayed or denied.  The injured worker may need help accessing another safety net (short- or long-term disability, SSDI, etc.) in that event.

By: 

• Robert Wisniewski, Esq., Law Offices of Robert Wisniewski, Phoenix AZ
• Cheryl Hill, Brentwood Services Administrators, Inc., Charlotte NC
• Keith Kasper, Esq., McCormick, Fitzpatrick, Kasper & Burchard, Burlington VT
• Claire Muselman, Continental Western Group, Des Moines, IA
• Shirley Hinton, National DCP, LLC, Duluth GA
• William Zachry, California State Compensation Insurance Fund

This collective group enjoys making the industry a better place by coming together, regardless of which position you hold in the workers’ compensation space, to make good things happen for injured workers and improve wc perception. We believe the change you want to see starts from within. Start with you, start now.

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