When we look at what drives workers’ compensation costs, litigation is always at the top of our list of expenses. After the decision is made to involve counsel – for the injured worker and/or the employer – efforts are traditionally aimed at long-term mitigation. In this generation of instant gratification and immediate communication on multiple topics, the way we look at this issue should change as well.
We’re often asked to describe how we manage litigation – the best way to do that is to make every effort to avoid it. How? A great program considers the following areas:
Begin with the end in mind: The first contact with the injured worker is a great way to set expectations about the entire process – including resolution. Beginning with the end in mind sets the expectation that they will be back to productive work, and that the employer will be fair and resolve the entire claim promptly. Spending the extra time to do this right reduces litigation, and reinforces the fact that employers really do care and want people back to work in a productive and healthy way.
Know what drives your litigation rate: There are many ways to determine what drives injured workers to seek legal counsel. We track a multitude of things for customers including the specific points and reasons for litigation. We found in recent studies that confusion about what to expect, as well as uncertainty about the employer’s commitment to their health and return to work, sometimes drive litigation rates. These are areas that can be mitigated.
Resolve it early when it happens: When litigation occurs, we recommend an immediate evaluation of the opportunity to resolve the claim quickly. In our experience, timely contact with the injured workers’ attorney and resolving claims that should be resolved versus following the administrative process to the end has merits in a significant portion of litigated claims. Obviously, defensible claims should be defended; but statistics show that early resolution is a helpful strategy in many cases.
Partner with the defense community: The conventional workers’ compensation system is not designed for speed. The legal community can be a great partner in the way that we look at, evaluate and quickly resolve cases. But this can only happen when employers collaborate with defense counsel on the best strategy. We recommend an approach that keeps all parties focused on resolution. This means finding firms that are motivated by action – whether that is fair resolution or an aggressive move to trial – versus hourly billing. Attorney scorecards allow us to measure the type of partnership that defense firms provide.
We know that the shared goal of safe return to work and appropriate claim resolution – whether by settlement or trial – is the ultimate goal. When you consider the environmental factors – the economy, state specific system issues and the impact of Medicare on our ability to resolve claims promptly – it’s an obligation to set the expectation that we’ll do the right thing at the right time. Modernizing the way we look at the overall process will help the industry focus on beginning with the end in mind.
What do you think are the key drivers regarding litigation?
Kathryn Tazic, SVP, Client Services