The Trouble with Workers’ Compensation – A Claimant Advocate’s Perspective
Not many realize it, but few areas of the law have quite as much impact as workers’ compensation. According to recent reports from the Maryland Workers’ Compensation Commission, nearly 100,000 people a year get hurt in reported on-the-job accidents. In a state with fewer than 6 million residents, that’s a big percentage of the working population. Approximately 25,000 of these injured workers file a claim.
Warnken, LLC advocates on behalf of more than 400 injured workers. We live in the Maryland workers’ compensation system every day. We see the pain and the struggle of our clients everyday.
I asked everyone who works in workers’ compensation at Warnken, LLC to tell me one or two problems they experience with the system. I asked them point blank: What make your job a pain in the ass everyday. I sent out one email, but I asked everyone to respond individually, so we could avoid any kind of groupthink.
The responses I got back were interesting. Some were expected, some were not. Here is a synopsis of the responses…
- The demands that adjusters make in order to pay the TTD or temporary total disability. Some demands are reasonable, some are not. Most adjusters rely entirely on us to get them medical records. Providers are more inclined to send reports to the insurer quicker because they know that’s where their bills are being paid. We, on the other hand, must generally wait for an invoice, the send payment, have it processed and wait to get the records. There’s a turnaround time of generally 30 days. All while the injured worker gets nothing. It’s just another way adjusters can delay payment to the claimant. Our only recourse to get people to move where they won’t is to file issues. We do so all the time and, when appropriate, we ask for attorneys fees to be paid by the insurance company. It seldom happens in the end. It would be nice if there were more teeth in the process somehow.
- Communicating with adjusters! Some of them take days or even weeks to respond to a simple question. Other swill just go AWOL and I have to track them down through their supervisors. When they do respond, it’s often with a one or two-word email that requires additional follow-up or request for clarification from me. It’s especially frustrating when it’s a time sensitive issue, such as when a client has not received their TTD check or we are waiting on approval for treatment. In short, a lot of them are just rude, lazy, or simply don’t seem to care about performing their job with even a minimal level of competence.
- The fact that insurers can deny treatment or TTD essentially unilaterally, coupled with the waiting period for a hearing. Making the injured and the poor wait months for a hearing while simultaneously being denied compensation and/or medical treatment is borderline inhumane.
- Having to request a hearing for authorization for medical treatment. It delays the treatment because you have to wait 3 months for a hearing. There should be an expedited method for having a request for medical treatment reviewed by a Commissioner.
- Unresponsive adjusters (this particular Warnken, LLC person likes brevity)
- The length of time it takes for the Commission to set hearing dates, especially for those injured workers who live on the Eastern Shore and Delaware.
- Comp awards are not paid in lump sums to claimants. In personal injury cases, the award by a judge or jury becomes a judgment and is due in full to the Plaintiff. Compare that to workers’ compensation, where the lump sum is only what has accrued to the date of the order.
- Caps on awards. Tier one 2015 PPD awards capped at $168/week? It’s insane to have to tell a client that yes, your bodily injury equals a certain number of weeks of pay. But not your actual pay. A fraction of your pay. That is based on the severity of the injury, not actually how much money you make. (We who live in the comp system know that’s just the way it is … part of the grand “bargain.” But try explaining it to an injured worker – which is what we, as lawyers for the injured have to do.)
- More caps on awards… Tell a client who makes $1700 per week that their comp injury cannot possibly be worth near that much and it will get adjusted down to the cap. Again, all part of the grand bargain.
- The overworked and overloaded nature of the Maryland Workers Comp Commission. The website – a marvel for a Government website, far ahead of its time, is now slow and outdated (you have to open it with Internet Explorer in order to properly view and print documents…who still uses Explorer in 2015?). I have to call them and follow up every couple of months about claim forms we sent in because we do not get the time date stamped copy back. It takes two to three weeks to get an emergency hearing approved and scheduled for a client, never mind a regular causation or PPD hearing, which takes two to three months to be scheduled on average after we file issues. It’s frustrating when we work hard and fight on behalf of a client but I still have to tell them that their hearing date is months away when they are suffering now, and there is absolutely nothing we can do about it.
The truth is, and we don’t hide the truth from our clients, workers’ compensation sucks! It’s not meant to make you exactly whole. It’s meant to make you partially whole. You are part of the “grand bargain.”
Try telling someone with a herniated disk or an amputated finger or a broken leg that they have crawled right into the middle of the grand bargain. It’s an absolute wonder any of our clients actually like us in the end. As hard as we can struggle for them, we have to live in the system. By the nature of being a workers’ compensation law firm, we spend a great deal more time advocating in the system than we do pushing the against the system and trying to get the system to change, even just a little, for the benefit of our injured workers.
Is this anyone’s fault? I don’t know. We’re certainly not casting out blame to individuals in this system who work hard to do their jobs everyday. The majority of people in the system want it to work for the benefit of all involved.
Most of American society – and certainly all of America’s working poor – live paycheck to paycheck or close to it. This is a function of society. Living paycheck to paycheck doesn’t make you bad or lazy or short-sighted. It means that you aren’t on the advantaged side of this American experiment. The reasons are many. Most of the reasons are circumstantial. But whatever the reason, it means you can’t cover unexpected expenses.
When you are living paycheck to paycheck and you get seriously hurt, chances are you are screwed. Your life is about to get really, really difficult. And the workers’ compensation system is (usually) better than nothing, but it’s a far-cry from complete. All we can do for injured workers is promise to give our best effort.
The above is reality. We don’t say it to get credit, get blame, or cast blame. We say it because it’s the truth. It’s the system we live.