Scale on a Table

Believe it or not, the idea of providing medical and wage benefits to employees who are injured on the job dates back to Sumeria, 2050 B.C.[1] Back then, benefits provided to the injured worker depended on the ruler’s whim and there was little or no recourse for those that felt they were unfairly treated.

In stark contrast, the modern system in place today is a quagmire of laws and regulations meant to provide protection to both the injured workers and the employers. The purpose behind the creation of the current system was to remove cases involving on the job injuries from the Court system. However, disputes over various issues still exist related to on the job injuries and as a result the current system is still highly litigious.

As an Insurance Defense Lawyer, I only see the cases that are litigated and have come to understand a variety of reasons this occurs. While there are many factors that can lead to a Claimant hiring an attorney and litigating a case, there are things that can be done to avoid litigation. But first, you have to understand the why.

The Workers Compensation Research Institute (WCRI) conducted a study in 2012 to determine the why. Here are some of the findings:

Workers are more likely to seek an attorney’s help when they feel threatened by either their employer or the insurance carrier. 23% of those surveyed hired attorneys because they feared being laid off or fired as a result of their injury. 15% hired attorneys because they felt the employer or carrier would perceive their injury as illegitimate (such as in soft tissue injuries).
Workers are more likely to seek an attorney’s help due to miscommunication or lack of communication from the employer and carrier. 46% of those surveyed said they hired an attorney because they felt a claim was denied, when in reality it wasn’t.
Another issue that led to litigation, according to the study, was a lack of consistent communication on the claimant’s level. In my own practice, I note a higher degree of litigation with employees who are uneducated or unsophisticated and therefore do not understand the process of recovery or what their doctors are telling them.
The study also revealed that those workers with severe injuries or illness and soft tissue injuries are 15% more likely to involve attorneys because these cases can be complicated, and nonwork-related causes can be an issue.
Job tenure also affected the likelihood of workers hiring attorneys. According to the study, workers who had less than one year on the job when they were injured were more likely to hire attorneys.
The study also revealed that attorney involvement tends to increase as workers age: 20% of workers age 55 or older hired attorneys. About 17% of those between the ages of 25 and 54 hired attorneys, and 9% of 15-to-24-year-olds did so.
Those who were interviewed in Spanish hired attorneys twice as often as those who were interviewed in English.
High school graduates were six percentage points more likely to hire attorneys than college graduates. It was postulated that the less-educated workers were more likely to hire an attorney because they were more likely to be intimidated by the claims process and had an inability to understand the injury and recovery process.
Finally, there was a marked increase in litigation over low back injuries without fracture as compared to any other type of injury.

What can we learn from these findings? Know your demographics and educate your employers and adjusters to address some of these concerns. Consider it in your initial handling and strategy of handling the claims. If an employee is more likely to hire counsel because of a perceived threat or lack of understanding, put procedures into place to make sure these concerns are dealt with before they become an issue. Consider early settlement of cases with these types of demographics to lessen litigation and reduce the case load. This may require offering a little more up front, but can avoid costly litigation later.


[1] For more information on the history of Workers Compensation visit this link for “A Brief History of Workers’ Compensation” by Gregory P. Guyton:

Barbi L. Feldman