False Buzz: App. Attorneys Do Not Make a Case more Expensive

Friday, February 21, 2014 | 0

There’s some talk online of how horrible it is to have a litigated case – the California Workers' Compensation Institute has a study out that would have you believe the presence of an applicant’s attorney will dramatically inflate a workers’ compensation claim’s cost.

Claims with represented employees have (on average) an extra $24K in temporary disability benefits, an extra $41,000 in permanent disability benefits, higher medical treatment costs and longer closing times.

Before someone panics and starts trying to scare, threaten or bribe an injured worker away from retaining an attorney, please recall: causation and correlation are not the same thing. Much like caramel apples and caramel onions, they may look like the same thing, but the result from biting one is very different.

The presence of an attorney might not drive up the costs of a case, but, instead, might be caused by a more complex case.  Attorney or no, more complex cases, with more serious injuries, will (1) require more time off work, and thus more TTD; (2) more medical treatment, so a larger medical bill and slower-approaching P&S date; and (3) higher permanent disability.

As my more regular readers will recall, I am no particular fan of applicants’ attorneys. They can make life harder sometimes, and some of them don’t have many nice things to say when cases don’t go their way. That being said, your humble blogger is an even smaller fan of unrepresented applicants sending him interrogatories, citations to the Federal Rules of Civil Procedure, or any other documents wholly irrelevant to the practice of workers’ compensation.

The right applicants’ attorney can make a case go smoothly and swiftly towards resolution and can exercise the sort of applicant control that is often impossible for an adjuster or defense attorney.

What this analysis actually shows is that workers who sustain very serious injuries cost insurers and self-insured employers more and tend to attract the services of an applicants' attorney. How would you like to have to keep a case open because the injured worker thinks he’s entitled to $1 million? Do you want to have to explain (and re-explain) that there are no punitive damages in workers’ comp?

So let’s all ease off the panic button, and stick with the basics:

• Treat the injured worker fairly and provide all benefits to which he or she is entitled;
• Be honest with the injured worker, and don’t take advantage of the fact that you’re a repeat player and this is his or her first (and hopefully only time) in the workers’ comp system;
• Remind the injured worker that you’ve been honest, helpful and have quickly provided all benefits, and that if he or she gets an attorney, they will just end up paying a big piece of the benefits they were already getting, and that you’d be forced to refer the case to a cold, heartless and overly aggressive defense attorney.