Why I do this and why you might care

If you’re considering hiring an attorney, maybe it would help to know what that prospective lawyer is thinking. Here’s what I’m thinking.

My practice focuses on injuries. On the workers’ compensation side (which includes Defense Base Act/Longshore claims–they are another type of workers’ compensation), I keep coming back to the feeling that people who are hurt working are really up against a lot of challenges, and they shouldn’t expect to navigate the complexities of the comp system alone. Insurance companies basically want to maximize premiums and minimize payments. They don’t seem to spend a lot of time thinking about the people who are hurt, or whether they will put together decent lives when the healing is over. They hire armies of people to lobby against any attempt to expand benefits for injured workers.

Injured workers have their advocates too, but we are far less well-funded and our organizations are way smaller. A really good one is WILG, the Workers’ Injury Law and Advocacy Group. We do a lot of work to make sure that legislators and other policy makers understand how bad it is to suffer a major work injury, and to put in place the most supportive benefit structures we can. It’s hard work, and it’s never over, but I just can’t shake the feeling that it needs to be done. And I’m glad to do my part.

What is “concurrent jurisdiction?”

Concurrent jurisdiction is when your claim could be in more than one workers’ compensation system (or court) at the same time. No systems allow you to collect benefits twice for the same thing, but sometimes you can “pick and choose” the best of both systems. So if you have a Longshore claim because you were hurt in the State of Maine or New Hampshire (or any of many other states), but were hurt in a maritime occupation with enough connection to the water, you might be able to get benefits under one system or the other that you would not if you were in one system alone.

You should not have to worry too much about concurrent jurisdiction, but you should be aware of it and should ask your attorney if your case might benefit from concurrent jurisdiction in one or more workers’ compensation systems.

What is Workers’ Comp, Anyway? Answer: A Compromise

Workers’ compensation laws are a tradeoff between employees and employers. Employees give up the right to sue their employers for full damages, in exchange for specific benefits without the burden of proving fault. Before workers’ compensation laws, employees had to show fault on the part of someone–usually their employers–in order to be compensated.

Most workplace accidents are not the result of anyone’s fault, so even though workers’ compensation benefits are less than the damages available in court, employees are usually considered better off having workers’ compensation than not having it. This is hard to accept when you only receive 60% of your pre-injury average weekly wage, like New Hampshire workers do, and only a little less painful if you receive 2/3 of Average Weekly Wage, as many states and the Longshore, Defense Base Act, and other laws provide.

However, the alternative–having to prove in court that an employer’s fault caused an injury–is more expensive to pursue and takes a much longer time than a normal workers’ compensation administrative hearing.  For better or worse, workers’ compensation is the tradeoff we have to live with.

NEWS UPDATE:  Injured workers in Florida may have expanded options!  A court in Florida recently found that the Florida workers’ comp system was so meager that it unconstitutionally deprived Florida workers of remedies guaranteed to them by the state constitution.  Here is a link to the story: Florida Workers’ Compensation Law Struck Down

“Why is the insurance company denying my DBA claim?”

This came up just the other day, actually, although in this instance it wasn’t a DBA claim. It just seems like a more common question in Defense Base Act cases.

Sometimes you may wonder why the insurance company is or isn’t doing something with your workers’ compensation claim. Maybe you wonder why the claim is denied, or why medical treatment is being denied. I’ve found that most of the time, the answer is “There’s no way to know, plus it probably won’t make any difference in the long run.” This is very unsatisfying, I know, but it’s also true.

My two cents’ worth is that most workers’ compensation claims adjusters have more files than anyone could reasonably expect them to handle, so they are under tremendous pressure all the time. And that can be counterproductive, just like in any other job. So your adjuster may have made a decision out of pressure, because he or she just doesn’t have time to review your file. And it’s easier to say “No” than “Yes.” Plus when is the last time an insurance manager complained at an adjuster about denying a claim?

As to why I don’t think it matters why a decision is made, that’s just me focusing on what we are doing now, and what’s going to happen next. Most of the time, the decisions that have to be made in a case will not change depending on the adjuster’s reasons for taking any given action. So when I’m planning strategy going forward, I do think over what got us where we are, but most of the time it doesn’t really change things much. It’s just a lot of time spent guessing about the thought process of someone who has way more going on than we can possibly know.

Beware “Official Disability Guidelines”–How Official Are They?

For no particular reason, I’ve been working on a lot of Defense Base Act (DBA) cases lately.  I like these cases–the people are great, the facts are interesting, and the law is pretty good, all things considered (and there are tons of things to consider, which I will try to write about later).  So when I’m working on DBA cases, I’m usually in a pretty good mood.  But today I’m feeling a little cranky because of a new twist that insurance companies are using to deny medical benefits in workers’ comp claims.

And this trick is not limited to DBA claims–state comp carriers are doing it too.  The trick is denying medical benefits based on so-called “Official Disability Guidelines,” or other for-profit publications dressed in “Official” clothing.  But there’s nothing “Official” about “Official Disability Guidelines.”  These “Guidelines” are for sale by the Work Loss Data Institute–a for-profit publishing and database company.  Unless your state has adopted these guidelines into law–and some have done so, but not New Hampshire and not the Longshore and Harbor Workers’ Compensation Act (“LHWCA,” the law that applies in DBA cases)–the “Official Disability Guidelines” are nothing more than a way to make it look like there are agreed-upon rules for how or when various medical procedures ought to be done.  There is no such consensus, and there is no “Official.”  It’s just somebody selling “guidelines” to the insurance industry, which the industry in turn uses to deny benefits in a way that appears principled, instead of arbitrary.

So if you are an injured worker, and your doctor is proposing a treatment that the insurance company refuses to pay for because of the “Official Disability Guidelines,” it might be time to get some advice about your options.

Doug’s post–written by Doug (no ghost writing here).

Doug’s reflections on the 100th anniversary of workers’ comp

A few years ago, the 100th anniversary of widespread adoption of workers’ compensation laws in the United States was celebrated. The International Association of Industrial Accident Boards and Commissions (IAIABC) invited reflections on workers’ compensation. I decided to weigh in and posted a few thoughts about what comp might look like in a better world. Here’s what I wrote.

Looking back on it a few years later, I still like my idea. Adversarial systems are not designed to get the best result overall. They are designed to pick winners and losers. Right now, that creates enormous risk for the injured worker of losing everything if a light duty return to work attempt does not go well. Most systems have no good “safe harbor” provision to allow injured workers to try out a job without risk of losing benefits.

I don’t know what I would design if I were asked to create the perfect workers’ compensation system. I just know I would include some kind of safe harbor to let people try working without risk of losing their benefits.