Avoiding Litigation

1. Avoiding Litigation What Can Employers, Payers, And States Do?

2. Worker Attorney Involvement Varies Greatly From State To State

3. Study Objectives Identify/quantify important factors explaining why workers hire attorneys Suggest strategies to avoid unnecessary attorney involvement and litigation costs Strategies for employers, claims managers Strategies for state WC administrators

4. Major Findings Workers are more likely to seek attorneys when they feel threatened Some threats may come from the character of the employment relationship Employers may mitigate these threats and reduce litigation Other threats may come from the claims process Claims managers and state WC agencies may mitigate these threats

5. Conceptual Model: Many Factors Shape Workers’ Decisions To Hire Attorneys • Nature and severity of injury • Worker characteristics – attitudes toward conflict, ease of finding attorney, need for help • Workplace characteristics • State specific factors • State culture on cooperation/conflict • Design features of WC system

6. Research Approach And Data • Use common statistical methods to isolate the impact of each factor • Claims records and telephone interviews for 6,823 claims • Claims with > 1 week of lost time • Analyze 11 larger states • Interviews conducted 2.5-3.5 years post-injury

7. 3 Of 4 Most Important Factors Can Be Impacted By Employer/Insurer Trust in the work relationship Worker feared being fired Worker said that supervisor did not think claim legitimate Claims process Worker perceived claim was denied Initial injury severity reported by worker

8. Many Workers “Strongly Agreed” That They Feared Firing When Injured

9. Workers Are Twice As Likely To Hire Attorneys If They Fear Being Fired

10. Workers Much More Likely To Hire Attorneys If They Fear Being Fired

11. 3 Of 4 Most Important Factors Can Be Impacted By Employer/Insurer Trust in the work relationship Worker feared being fired Worker said supervisor did not think claim legitimate Claims process Worker perceived claim was denied Initial injury severity reported by worker

12. Workers Believed Supervisors Distrust Legitimacy Of Claim – 12-20% Of Cases

13. Workers Who Believed They Are Not Trusted More Often Retain Attorneys

14. Workers Who Believe They Are Not Trusted More Often Retain Attorneys

15. WC Agencies And Claims Managers Can Impact Perceived Denials Trust in the work relationship Worker feared being fired Worker said supervisor did not think claim legitimate Claims process Worker perceived claim was denied Initial injury severity reported by worker

16. Workers Perceived Denials In 5-11% Of Cases With Payments

17. If Claim Is Initially Denied, Worker Is 3 Times More Likely To Retain An Attorney

18. Workers Much More Likely To Retain Attorneys If They Perceived Claim Was Denied

19. Attorney Involvement More Likely In More Serious Injuries Trust in the work relationship Worker feared being fired Worker reports supervisor not think claim legitimate Claims process Worker reports claim initially denied, subsequently paid Initial injury severity reported by worker

20. Average Injury Severity Reported By Workers Is Similar Across States

21. Attorney Involvement Increases With Injury Severity

22. Other Factors Worth Noting That Raise Likelihood Of Hiring An Attorney High school graduates (compared to college graduates) Workers who chose to be interviewed in Spanish Workers with <1 year job tenure (compared to workers with more tenure) Low back conditions (compared to fractures) Several measures that reflect severity Surgery or not Treatment by 1 doctor or 2+ doctors

23. Possible Application: This Economic Downturn More workers fear losing their jobs than in past recessions If claim made, more likely to hire attorney Especially in most severely affected states and industries E.g., FL construction, MI auto suppliers

24. Possible Application: Employee Free Choice Act Employee Free Choice Act may increase workers’ compensation costs If passes, union organizing and employer resistance will increase Some affected workplaces will have much lower trust environments If so, attorney involvement would increase

25. Major Findings Workers are more likely to seek attorneys when they feel threatened Some threats may come from the character of the employment relationship Employers may mitigate these threats and reduce litigation Other threats may come from the claims process Claims managers and state WC agencies may mitigate these threats