Workers Comp Matters

Guest Bogdan Savych, a senior policy analyst at the Workers’ Compensation Research Institute (WCRI), discusses his new paper, written with David Neumark, entitled “Impact of Attorney Representation on Workers’ Compensation Payments.”

WCRI studied the impact of attorney representation when it comes to indemnity payments (income replacement benefits) for injured workers in what, on its face, is supposed to be a straightforward Workers’ Compensation system. What impact, statistically, does having an attorney represent an injured worker have on payments? 

Not surprisingly, Savych’s research found that for workers, having an attorney represent them in their claims can result in higher payments, but there is still work to be done. And, as host Alan S. Pierce notes, it’s even possible involving an attorney can save the Workers’ Comp insurance company money by identifying other parties who are liable for the injury through negligence. But then, what about attorney fees? There are myriad factors to consider, and, as we know, every state is different. 

If you’re an attorney who represents injured workers in Workers’ Compensation claims, or you’re otherwise connected to the world of Workers’ Comp, consider joining WCRI as a member.  

If you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear, contact us at [email protected]. 

Mentioned in This Episode:

“Impact of Attorney Representation on Workers’ Compensation Payments,” by Bogdan Savych and David Neumark

Free Report: “WCRI Medical Price Index for Workers’ Compensation, 16th Edition (MPI-WC)” by Workers’ Compensation Research Institute

Previously on Workers Comp Matters, “The Attorney’s Role in Workers Compensation”

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Our military and public service veterans deserve our best. Guest Alex Dell is a longtime Workers’ Compensation and Veterans Affairs compensation attorney, often representing injured public servants or military veterans. He’s also a former Division One hockey referee. In both roles, Dell explains how taking a broad view is crucial. 

The key, he says, is to avoid “tunnel vision.” Learn to see issues from multiple angles. Take in the whole picture. In hockey, keep an eye out for penalties behind the play, and when a worker is hurt, especially a military veteran, watch for multiple claims to pursue as you seek to best represent your client. 

When we talk about veterans’ claims, we’re looking at three areas: pension benefits, compensation for injuries, and “DIC” benefits, the dependency and indemnity claims for families who lost a loved one or who have a loved who was disabled. It can get tricky, and there are unscrupulous “representatives” eager to trick potential clients into making payments that are already covered by the compensation programs. 

Representing public servants and veterans is nuanced. Some disabilities aren’t physical. Post traumatic stress disorder (PTSD) may not be evident at first but can manifest itself later. That’s still a real disability, and vets deserve compensation to help them recover. Some veterans may not even know help is available even a decade or more after service. And clients may also not understand a VA “denial” isn’t the end of the road. There are alternatives and appeals. 

Do you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear? Contact us at [email protected] 

Mentioned in This Episode:

Pro Hac Vice

Article, “Presumptive Evidence Of Causation In Workers’ Compensation Claims Related To World Trade Center Rescue, Recovery And Cleanup Operations”

“Your Intent to File a VA Claim,” U.S. Department of Veterans Affairs

“The Michigan Goal,” YouTube

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In this special episode, co-host Alan Pierce shares his thoughts on an auspicious occasion, celebrating his 50th year practicing Workers’ Compensation law. Alan’s son and law partner, Judson Pierce, interviews his father. 

Fifty years of anything is a long time. Alan passed the bar in 1974 and began practicing Workers’ Comp law. He’s seen a lot. Incremental changes seem to pass slowly, but over half a century, Alan has had a front row seat to what’s become a revolution, from his start as a claims adjuster to attending law school at night to founding his own Workers’ Compensation law firm. 

Since its introduction more than a century ago, Workers’ Comp evolved into a specialized, and highly complex system aimed at making injured workers whole and getting then back on the job while controlling costs, rehabilitating workers, and understanding and managing ever-changing workplace environmental challenges. 

Today’s “gig economy,” artificial intelligence, the influence of business lobbying, and the decline of union political influence are ongoing issues that will shape Workers’ Compensation rules as the system heads into its second century. Hear Alan’s perspective on the changes he fears may ultimately harm workers if we don’t continue to uphold our long-held moral obligation to protect each other. 

Do you have thoughts on Workers’ Comp law or an idea for a topic or guest you’d like to hear? Contact us at [email protected] 

Mentioned in This Episode:

Michael Duff, “How the U.S. Supreme Court Deemed the Workers' Compensation Grand Bargain ‘Adequate’ Without Defining ‘Adequacy’”

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How will AI help us help workers injured on the job? What voids will AI help us fill as we work to help people get back to work and life? Treatment authorizations, document delivery, and automation of mundane tasks such as signature acceptance help an injured person get back on the job faster and speed operations for the adjuster. Let’s work together. 

As guests from digital communications platform Gain Life Tycho Speekenbrink and John Peters explain, claims are complicated. But automation can help speed the process by analyzing how prior cases and even patient locations have worked in similar cases. Today’s tech can help both sides eliminate bottlenecks, including routine treatment approvals, medical appointment scheduling, even transportation to and from care. Hear how AI can accelerate and simplify the process. Can AI help adjusters get past routine tasks and learn a little bit about empathy and collaboration, things that work for both the worker and the adjuster? 

Workers’ Comp is struggling to get past the old “snail mail” and paper files era. Hear how AI can advance reaction time and attract new, younger, talent that has grown up in the digital age. The systems aren’t yet perfect, but you don’t want to be left behind. Change (for the better) is coming. AI won’t replace adjusters and attorneys, but it will help them do their jobs better.

Mentioned in This Episode:

“AI Sparks New Era In Empathetic Workers' Comp Claim Management,” PropertyCasualty360, by Tycho Speekenbrink and John Peters (free registration required)

OpenAI ChatGPT

Google Gemini AI

Coursera

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Guest Claire C. Muselman’s recent publication in WorkersCompensation.com encourages adjusters to take a new look at Workers’ Compensation’s goals. Maybe we should be less skeptical of workers and show empathy. In other words: Be Nice. 

We all have biases. Sometimes they get in the way and keep us from caring. From social media to traditional learning to storytelling and anecdotes, how do those biases influence our assumptions when it comes to making workers whole and getting them back on the job after a workplace injury? 

In her article, “Empathy’s Impact on Workers’ Compensation: Elevating Care for Injured Workers,” Muselman writes, “Empathy is the ability to understand and share the feelings of others. In the Workers' Compensation field, it involves recognizing and acknowledging the emotions of injured workers, seeing things from their perspective, and responding with compassion and understanding. Empathy goes beyond sympathy, which is pity or sorrow for someone's misfortune. Instead, empathy involves a deeper connection where we can truly comprehend and relate to another person's emotional experience.” 

Wouldn’t it be great if we could step away from an adversarial position, stop trying to assign blame, and start thinking about the injured people and their families? It’s a new approach but perhaps a better one.

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Let’s talk about alternative medicine and coverage under Workers’ Comp’s hodgepodge of rules. 

Guest Maya Rashid is a recent graduate of Penn State Law and the winner of the College of Workers’ Compensation Lawyers’ student writing competition with her article “Revitalizing Recovery: Exploring Workers’ Compensation Coverage of Alternative Medicine.”

Fighting for clients seeking treatment through alternative medicine under Workers’ Comp? Even traditional medicine can get tangled in case law and treatments, but when it comes to alternative medicines, where do you, and your clients, stand?

It’s a confusing issue, trying to figure out how injured workers can choose their own care and recovery path versus what insurers and jurisdictions determine is “reasonable.” The word “reasonable” varies across jurisdictions. Not to mention the confusion of medical bill coding. If you, and your clients, are confused, you aren’t alone.

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When workers are recovering from a workplace injury, there are psychosocial factors, mental factors, which can impede the recovery from physical injuries. Things such as a worker’s recovery expectations, fear of pushing too hard or performing activities that may restrict the benefits of physical therapy and hamper recovery, or even new negative feeling about their job and perceived injustices over how a supervisor or employer reacted to the injury. Can these “mental” factors prolong recovery and delay a return to productive work? 

Guest Vennela Thumula, Ph.D., works at the Workers’ Compensation Research Institution – a nonprofit, objective provider of research and analysis – and is the lead author of this year’s WCRI report, “Importance of Psychosocial Factors for Physical Therapy Outcomes.” The role of psychosocial factors is increasingly being recognized as a major factor in recovery. 

Understanding a clients’ mental state – and its impact on recovering – may be just as important as their injury diagnosis when it comes to achieving full compensation and helping them return to a full, productive life. Just because you can’t see an injury doesn’t mean it isn’t there. What you hear on this episode of Workers’ Comp Matters may change how you approach each client’s individual situation.

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This episode opens a new topic for the Workers Comp Matters podcast: repetitive stress injuries, sometimes referred to cumulative trauma, acquired on the job. What happens to someone when someone develops a workplace injury, physical or mental, that can’t be traced back to a single, isolated event? Or what if the injury is the result of cumulative trauma developed under multiple employers? 

Bodily wear and tear, the result of daily repetitive labor, is real. Think of the brick mason on his knees for decades or the mechanic crawling under vehicles and lifting heavy items, or the carpal tunnel injuries from working at a keyboard week in and week out. These injuries pose challenges when asked for a “date of injury” on a claim form. 

For attorneys representing victims of repetitive stress, clarity is key, explaining clearly to the investigator that there is no single date. The injuries were the result of the entire period of labor. Lawyers need to think creatively to fully communicate that the injury is the direct result of the workplace. 

We all “break down” as we age. For a successful claim, attorneys must show that the traumatic “wear and tear” injury is a direct result of the workplace, not simply the result of ordinary aging.

Mentioned in this Episode:

Massachusetts Zerofski Case

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The “times they are a changing” in the world of Workers’ Compensation, a system developed when the relationship between workers and employers were more clearly defined. Guest Emily Spieler is an accomplished author, former professor, practicing attorney, and government official with a career that spans the space of workers’ rights, safety, and compensation. 

The 100+ year old system of Workers’ Comp has evolved and continues to change and adapt. But the bottom line is we still have a duty to care for injured workers. How do we fit today’s challenges into an old model? 

There’s a growing debate today in both legal and government circles over the definition of worker/employer relationships. The world today is more complex than when compensation rules were developed, and the nature of work has moved beyond old factory and mining jobs.

Contract workers, gig employees, and working remotely are shaking up the working world. Who should cover an Uber driver? As unions fade, who helps injured workers understand their rights, file claims, and protects them from retaliation for asking for compensation? Robotics, AI, rush warehouse fulfillment, and even jobs that haven’t been invented strain the limits of our current system. This is a fascinating conversation. 

Mentioned in this Episode:

“(Re)Assessing The Grand Bargain: Compensation For Work Injuries In The United States, 1900-2017,” Emily A. Spieler, Rutgers University Law Review

“US Court Rules Uber And Lyft Workers Are Contractors,” BBC

“Oklahoma Workers’ Comp Opt Out Ruled Unconstitutional,” Insurance Journal

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A person getting hurt at the workplace is never funny. But it can be instructional to examine some of the strangest ways people manage to become injured at work. Hear about some “interesting” cases. 

A schoolteacher whose leg “fell asleep” while he sat in a classroom falls trying to stand up. He broke his femur. Is he entitled to compensation from his employer? 

An Amtrak baggage handler was visiting the restroom when someone tossed a firecracker into the room. Startled, he fell and was injured; is Amtrak responsible? How about a city worker who says he picked up a firecracker he found on the job, and it mysteriously exploded, injuring him? 

People get hurt at work, but as these and other cases illustrate, it’s not always the responsibility of the employer. (And sometimes, workers do silly things…).

Mentioned in this Episode:

Tom Robinson’s Top 10 Bizarre Workers’ Comp Cases For 2022

Steven Silberberg v. Palm Beach County Schools

Phillip Durance v. National Railroad Passenger Corp aka Amtrak

Dylan Junior v. Illinois Workers’ Compensation Commission

Jonathan Hollis v. Acoustics, Inc. and Associated General Contractors of MS, Inc.

Donald Weed v. Spraying Systems, Co

Stanis v. Workers' Comp. Appeal Bd. (Brand Energy Servs.)

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