Why Do Claims Go South? Preventing and Dealing With Stuck Claims
| Publication year | 2019 |
| Author | Steven D. Feinberg, M.D., M.S., M.P.H. |
Steven D. Feinberg, M.D., M.S., M.P.H.
Palo Alto, California
This article addresses prevention and management of work injury claims that result in a bad outcome for the injured worker and considerable costs to the payer. I examine the genesis of these claims and how the concerned parties, inadvertently or otherwise, contribute to their development and growth. I place special emphasis on the ways attorneys contribute to a positive or negative outcome for the injured worker and the claim.
In descriptions of cases, you may have heard the term stuck claims, creeping catastrophes, or claims that have gone south. Whatever you choose to call them and while they seem ever-present, these cases constitute only about 10 to 20 percent of claims, but they account for 80 to 90 percent of the costs. More important, these stuck cases, for the most part, are not truly catastrophic (as in multiple trauma, head injury, spinal cord injury, complex regional pain syndrome, and so on). Instead, they involve relatively minor musculoskeletal injuries that should have resolved quickly but did not. In fact, these stuck claims typically result in poor and expensive outcomes.
A theme is apparent in these claims that too often get stuck: the injured worker feels disenfranchised by the process and in some cases is upset and has persistent symptoms the physical examination and test findings do not explain. There are often clues in terms of delayed recovery factors that may result in the case getting stuck. For these injured workers the recovery seems to be unusually prolonged or there is no recovery at all. Despite a variety of treatment approaches, nothing seems to work. As the claim progresses the injured worker gets worse and the costs escalate. The injured worker, the treater, claims people, and attorneys all become increasingly upset and distressed as time goes on. As the claim progresses, reserves need to be increased. Uncertainty and desperation often drive excessive medical treatment, and the injured worker, instead of getting better, gets worse and the case appears to have no foreseeable end.
There are a number of reasons why claims get stuck and stay stuck. Here is a list of potential contributors to the problem:
- Workers' compensation system features
- Injured worker-related issues
- Medical treatment-related issues
- Payer/employer-related issues
- Attorney-related issues
Like it or not, the workers' compensation system is complex, and cases can get stuck because of this complexity. There is a significant procedural burden, with prescribed steps that can cause delay in medical care. Written communication by way of multipage, complex letters to the injured worker may be legally correct, but, at a minimum, they can be quite confusing, and, more extremely, emotionally upsetting to the individual. While well intentioned, benefit notices can have a negative effect; unexplained or impersonal denials can contribute to an environment in which stuck claims can incubate.
For instance, it is appropriate and reasonable to assess whether there was a legitimate work injury (AOE/COE, or arising out of employment/in the course of employment) and to which body parts. However, if the claim or body parts are denied, the result may be not only a delay in medical care (particularly if the injured worker does not have alternate insurance), it also may also lead to an increase in injured worker distress, further dysfunction, and, in general, the claim going down the path to being stuck.
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Again, what may be legally correct and seem reasonable to the employer, insurer, or defense attorney may not appear that way to the injured worker or the applicant attorney and may generate disputes. The system thus may convert medical issues to legal disputes. These disputes may impact the medical issues. Unfortunately, the focus on the legal and procedural complexity of a claim may take precedence over communicating with the worker and identifying the real issues (which often are not physical but psychosocial) driving the claim.
Injured workers are often not familiar with the nuances of the workers' compensation system. These individuals may have false beliefs and unrealistic expectations about causation of injury, body parts involved, and regarding their medical care needs. Some injured workers may have evidence of delayed recovery factors. Some individuals may be fearful regarding return to work after injury and, more generally, about the future. Some may be unable to cope with injury and may demonstrate catastrophic thinking. There are workers with low motivation for recovery and return to work. Some bring underlying psychological and social maladaptation to the injury...
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