By: Mark Barnes, Esq.
Because of the high costs associated with managing Ohio’s workers’ compensation system, employers want results. In other words, Ohio employers want to win more claims, plain and simple. But, how does an employer do this? “How to win more claims” is a nebulous question.
Practitioners in the workers compensation arena recognize the difficulty in measuring a “win” in a process that is designed to provide benefits to the “injured worker.” The question is, what is “winning?” Because of the multitude of compensation and treatment issues which may arise during the life of a claim, winning the war on claims does not necessarily mean winning each individual hearing. Moreover, workers’ compensation claims issues are fought in a number of different forums, including the Commission, the trial courts, and the courts of appeals. Think of winning claims as running a marathon…set out like an elaborate obstacle course.
At the administrative level, winning hearings depends on a number of variables, some of which are beyond the employer’s control. The location of the hearing may impact the result. The Commission’s statistics show certain hearing districts provide more claimant oriented results, while others favor employers. Who is the hearing officer? Although hearing officers are all charged with applying the law, the way they apply the facts to the law depends on their world view, which varies dramatically from hearing officer to hearing officer. The level of representation the claimant receives may also impact the outcome of a hearing. Finally, the quality of the claimant’s evidence may affect the hearing result. In court, the same types of uncontrollable variables exist.
Unless an employer has a crystal ball or a magic lamp, it is impossible to guarantee victories regardless of the setting. Besides, winning issues is not the same as winning the claim. The ultimate goal for employers is to effectively manage a workers’ compensation program. That said, employers can improve the chances of achieving this ultimate goal by adopting the following tips:
- Be slow to certify claims. In other words, conduct your due diligence and investigate claims thoroughly before accepting them. If you are a self-insured employer, certification of a claim is the same as a final adjudication, except that certifications cannot be undone. In the state fund context, acceptance of the claim is persuasive evidence the claim is meritorious. Unless you are completely satisfied the claim is good, do not certify a claim.
- Manage your claims consistently. Always conduct your investigations in the same manner, document all pertinent claim information, utilize independent medical examinations, and don’t cut corners. Employers get themselves in trouble by applying inconsistent protocols in the name of “goodwill” or to “save money.”
- Utilize the correct advocate when necessary. Both TPAs and attorneys may serve the advocacy role for employers. Nevertheless, each has different skill sets. In addition, under the Commission’s and Ohio Supreme Court’s rules, there are certain issues and evidentiary matters TPAs cannot present. Of course, attorneys may be expensive to hire. However, the cost of representation should not be the sole factor to consider in your decision to hire counsel. If you wait until a claim spirals out of control before hiring an attorney, you have done your company a disservice. Therefore, evaluate the need for counsel early, and again, be consistent in your decision-making.
- See the big picture, stay the course, and be resilient. Remember, winning claims is a marathon, not a sprint. And the ultimate victory is terminating the claim, which can be accomplished by judicial order or settlement. Ultimately, employers are managing a complicated program, which favors injured workers, while attempting to manage costs and maintain or reduce budgets. Winning battles is important, but, it is more important to win the war.
As renowned football coach Vince Lombardi once said: “Winning is not a sometime thing; it’s an all the time thing…you don’t do things right once in a while, you do them right all the time.” Apply the above principles consistently and you will win more claims.
This article was originally published in the March, 2014 Employer’s Association Newsletter. If you are a member of the Employer’s Association, you can view the complete newsletter here.