Who Advocates for Injured Workers?
Written by Margaret Spence | February 14, 2011 | 3
I’ve attended countless mediation’s in my years as an adjuster and now as a risk management consultant – the one question that keeps nagging me is: who’s really advocating for the injured worker? This may seem like a loaded question coming from a consultant whose only goal is minimizing my client’s exposure to litigation. But really, let’s ask the question – Who is in the injured workers corner? Is it family members, friends, doctors, attorneys, employers? The answer – no one, injured workers are often standing alone making poor decisions driven by poor advice, ulterior motivation or a false sense of financial gain.
I know you can’t envision injured workers as victims of the workers comp system, because we have been conditioned into a stereotypical view of injured employees. In fact I think that if you work in this system long enough you become so cynical that it is hard to even feel empathy for the employee – because they are just another file that landed on your desk. But if we stop and evaluate the process, really look at it from the injured employee’s point of view we may have a different opinion. What would happen if you were an injured employee – would you want someone advocating for you?
Before you stop reading this article, and accuse me of going off the reservation, I want you to mentally remove the folks we know are just filing claims to scam the system – forget about them. I am asking the advocacy question for injured employees who have legitimate injuries on the job and who have permanent residual medical problems because of the injury. Who is advocating the best outcome for them?
On any given year approximately, 3 million US workers are injured on the job. 1 million of those employees loose time from work. So if we are under the assumption that all claims are fraudulent I think we have our facts a little mixed up. (Statistics from Bureau of Labor and Statistics – www.bls.gov)
Pillow Talk – What or Who Drives the Advocacy Bus How Human Nature Takes Over Prudent Thought
The Car – I couldn’t help noticing that throughout the opening statements of a recent mediation that the injured workers spouse kept circling cars in the Auto Trader Magazine, yes he was literally circling cars as his wife’s attorney laid out their case. I was astonished at how brazen this spouse was. This man was not interested in his wife’s condition – he saw her as his ticket to a new ride. Simply put she was rims and wheels. As the mediation progressed it became more apparent that he had a Rolls Royce on his mind and we were determined to buy him a Dodge. He was quite comfortable encouraging is wife to quit her job after spending 16 years with the employer so he could buy a new car. Short sided because she gave up a $45,000 year job for a $25,000 settlement. (Current value $0) You have to wonder what conversation they had that drove her to seek legal advice in the first place.
The House – I had an uncanny discussion with a friend, whose wife was injured on the job and he was making plans to buy a new house as soon as she settled her workers comp claim. He totally forgot what I did for a living and was more than happy to share his pillow talk with me. He never said, oh- my poor wife is in so much pain (which she was). His only thought was, I think with this settlement money we can finally get a house. (He didn’t give a crap if she has destined to have pain in her back for life). He immediately saw dollar signs and prodded her to the settlement table. Throughout the process he insisted that she hurry up and get her medical treatment so “they” could settle the case. The sad part, his wife is left with permanent issues, no job and no health insurance to deal with her debilitating condition – do you think he was advocating for her best interest? (Funny enough they did buy the house and now it’s in foreclosure – Current value $0)
The Attorney Fee – Before everyone jumps on my case about beating up attorneys – I am not talking about the diligent folks who want what’s in the best interest of their client. I am talking about the rest of you. Over the years I have learned how to pick off attorneys – one by one. There is a magic number that every attorney needs to seal the deal and when that number is hit – everything else falls into place. Call it an art – call it science – I call it ego and greed. Nothing gets me going more than an attorney who clearly gives his client bad advice solely to drive up his end fee. Yes it happens so please don’t write me nasty letters – this is factual truth. For example, if the employee is established with a perfectly good doctor, who is providing all necessary treatment – suddenly the adjuster/employer is embroiled in “we want to find a new doctor cycle” is this in the best interest of the injured worker? Is it fair to send the injured worker to a doctor that is known to write the same report over and over just changing the heading? Will this drastically change the medical outcome of the claim? – Yes! Does the attorney care? No! At the end of the day – he will cash his attorney fee check and move on to the next client. Injured employees fail to see this fact. The short view for the injured worker, I have immediate money in my pocket – the long term reality – it’s not enough money to head to retirement so you will have to go back to work sooner or later! Do you think that when you are sitting at the settlement table that anyone really cares if you are in pain, or that you may run out of money, or that you may need more medical treatment? The answer is no – it’s a business transaction nothing more nothing less!
The Doctor – What can I say? Nothing drives me crazier than a doctor who keeps
milking the cow – over and over again. (So, I’m going to get nasty letters from a few doctors too). The only thing we want from doctor’s straight answers. Don’t send the employee to every specialty in the planet because you can’t say “there’s nothing wrong with you”. Is it too much to ask doctors to offer the injured employee best in class immediate medical treatment – that is not driven by the attorney? Can we expect that the doctor will not extend the treatment beyond its half-life? In the age of fee schedules, managed care, PPO networks and malpractice – we have squeezed the last drop of blood from the veins of the physicians and some of them have resorted to over treating, just to keep pace with their rising cost. Is this the system we really want? On the other hand, is it too much to expect that doctors will have prudent discussions that encourage injured employees to understand that they may not feel 100% today but they will feel better – eventually? Can we ask doctors to stop writing medical reports that force us to add more zero’s to the settlement check? Can we stop saying that the employee would have a better outcome if they were treated under group medical insurance than workers comp? If that’s the case, can I ask the doctor to close his eyes before each evaluation and imagine that the injured worker walked in with group health insurance – now open your eyes and treat them accordingly? Realistically, as an injured employee, do you really need to be treated by every specialty on the planet because someone planted the seed in your head that more medical treatment means better medical treatment? Common sense must rule and doctors must advocate for the injured worker with best in class immediate medical treatment. But injured employees must evaluate their medical treatment and advocate for what’s best not what brings in the most money.
The Employer – I had a somewhat heated discussion with several defense attorneys a few weeks ago because I feel that we often perpetuate this crazy cycle. It is my feeling that if the employee is legitimately injured – employers need to stop yelling fraud. I get so tired of employers saying the employee is committing fraud – hockey puck! If you saw the person fall down, you saw them get injured, the MRI confirms that they have x number of bulging discs, the best orthopedic spine surgeon says they need surgery – stop the malarkey and authorize the surgery. Our goal should be to provide the best medical treatment – immediately so the injured employee can return to work full duty. Think of it this way, employees do not sign on to work to end up with a debilitating problem. As employers, we have to hope that we care about our fellow man enough to say, if we caused your injury we will stand by you and provide you with appropriate medical treatment and get you back to work as soon as we can. We must also be willing to confront supervisors who treat injured worker as damaged goods. People who have legitimate injures don’t seek legal advice as their first line of defense – they are usually driven to the lawyer by our own actions or inactions. Advocating for the injured worker starts with you – do we view our roles as an advocate?
The Money – My late mother always said, “Money is the root of all evil” – I really don’t believe that but, she may have been right. Injured workers must stop letting financial gain rule their thought process. The injury is not your ticket to retirement, a new car, a house, a boat, a new pair of shoes, braces for Johnny, a loan to your free loading kids, new bedroom furniture…. The injury is a situation that happened, as unfortunate as it may seem, you have to live with it and money is not going to make your back feel any better. If you can go back to work, go back. If you can get better, get better. It’s not up to the system to determine your outcome it is up to you to determine your own outcome. Imagine if you were in a serious car accident and the doctor told you, you could never walk again. Do you sit at home crying every day or do you at some point decided that life is worth living and you are going to make ice tea with the lemons you have been dealt. Take that same concept into the workers comp injury and use it as a guiding principle. Ask yourself, if I can’t go back to this job is there something else I can do? Then self- advocate, don’t wait for everyone else to decide that the door should be opened for you.
The Family – Over the years, I have learned to peg when money is driving a families decision to settle a claim simply by counting the number of people who show up at the mediation. If the entire family is there – we have trouble on our hands. If the over bearing spouse is asking all the questions, they are usually counting how many ways they can spend the money. Funny story, I settled a claim three years ago for $90,000 – a high number but this was a legitimate back injury with multiple surgeries. A few months ago the injured employee showed back up at my clients office because he was broke and homeless. Apparently his wife filed for divorce three months after the check was cashed and she ran off with the money. Now he was back asking for his old job – this is a man that refused every attempt at light duty because his wife told him he was better off with a settlement. Did she have an ulterior motivation – do we think that family is always advocating for the injured employee?
I find that the discussions that occur – as pillow talk are often the discussions that drive the outcome of every workers comp claim. At the end of the day, no one is standing in the injured workers corner. Injured employees must understand that only they can decide the outcome of their workers comp claim everyone else may have their own agenda.
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