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By PETER ROUSMANIERE, an expert on the workers' compensation industry

Claimant attorneys are acutely aware of missteps by employers and insurers during the workers' compensation claims process. So listen up, employers and claims payers, as we've asked three seasoned attorneys from different parts of the United States to suggest how to be more proficient.

San Diego, Calif.-based attorney Linda Atcherley sees many employers failing to respond quickly to incidents that presage a claim. In California, if workers report to their employer about a problem at work--say, increasing numbness in the hands--there is a 90-day window within which the employer needs to investigate, pick up or deny a claim. After 90 days, the injury is legally presumed compensable.

"Far better", Atcherley said, "to face a claim head on than wait until the person has a lawyer and is filing a claim with some or all of the defenses waived."

In his 36 years of legal practice (mainly in Florida and the Carolinas), Gerald Rosenthal has met a good number of CEOs of claims-paying organizations. Now based in West Palm Beach, Fla., the attorney has some ideas for improving claims payer practices, focusing on better standards of communication.

"One of the problems that employers and carriers constantly relate is the lack of communication between the line adjuster and the defense attorney," Rosenthal observed.

Clearer, better, shared expectations among the adjuster, the claims supervisor and the defense attorney will result in more competent claims handling, in Rosenthal's view.

Claims payers might well ask these lawyers to help them design their claims procedures. What's a well-managed operation in Pierce's view?

"I would invest in well-trained claims representatives. I would try to establish locally based claims departments rather than something centrally based, many states removed from the employer. I would employ road adjusters with appropriate case loads. I would institute an immediate contact program for all lost-time cases whereby the claimant is contacted personally, either by telephone or even better in person, not just for a statement or to get medical authorizations, but to get an initial checkout and information to the injured worker regarding payment to medical providers and other matters," he detailed.

Atcherley, while echoing Pierce about improved adjuster training, added that claims payers need to better understand what best medical practice is, and not to slavishly parrot the published treatment guidelines.

"Guidelines are just that, guidelines. People are individuals and need to be treated as individuals. Often failure to authorize immediate treatment results in frozen shoulders, restricted motion of joints, increased disability and low return-to-work rates, particularly in the more arduous occupations," Atcherley said.

When asked what was the most impressionable time in their careers, all three lawyers cited the turmoil of major changes in workers' compensation law within their jurisdictions. Rosenthal recalled major legislative changes in Florida in 1979. The 10 years after 1979 "proved to be the most remarkable, rewarding and satisfying period of time in representing claimants."

What makes a superior claimant attorney? Along with being versed in many pertinent topics ranging from law to household assistance, the best lawyers will "think out of the box" for solutions that both sides agree to, according to Atcherley.

Pierce sees a superior lawyer as, in part, contributing to the education of other lawyers.

For Rosenthal, the best claimant lawyers will succeed in putting the injured worker on "a level playing field with the insurer."

Read more at the WorkersComp Forum homepage.

January 27, 2011

Copyright 2011© LRP Publications