3 Easy Steps You Can Take Today to Avoid Workers’ Comp Claims Litigation

Because accidents happen, the strategies an employer implements at the start of a workers' comp claim will dictate if it becomes a legal affair. Two experts share how to avoid just that.
By: | December 13, 2018

Accidents happen.

That’s what Michael Stack, CEO, Amaxx LLC, and Stuart Colburn, a shareholder with Downs Stanford, had to say during a presentation at the 2018 National Workers’ Compensation and Disability Conference® & Expo in Las Vegas earlier this month.


And because accidents happen, they said, the strategies an employer implements at the beginning of a work-related injury will dictate the ultimate success of the claim.

Their presentation “Avoiding, Managing and Winning Workers’ Comp Litigation” was filled with helpful tips and strategies for employers to set a goal of reducing litigation rates in workers’ comp. The main takeaway: The best way to reduce legal expenses is to avoid litigated claims altogether, making learning how to do so equally critical. Stack and Colburn provided three ways to start.

1) Understand why employees seek litigation.

The number one reason people often seek litigation, said Stack, is fear. Colburn added when that fear is driven by perception, litigation is almost inevitable. He said people often have a perception of insurance that is negative, and so their actions are guided by these perceptions. This makes understanding employees’ mindsets crucial.

In a WCRI study released in 2014, 48 percent of the surveyed injured workers responded that the fear of being fired after injury was the number one reason why they sought a lawyer. Alongside that, the fear surrounding money set in. Colburn said that often injured workers’ first thoughts are “how am I going to get paid?” and “who’s going to pay for the ER bill?”

2) Add in advocacy from the start.

Knowing and understanding an employee’s desire to seek litigation is just the start to turning around the claims process, they said. Once employers know why, they can start to implement practices to curb those feelings of fear, ultimately avoiding litigation in the long term.

Stack swore by sending a ‘get well soon’ card. He said it’s the simplest way to show an employer cares. It also shows the employer is thinking about the employee’s health and recovery — not the employee’s lost time. Stack also said employers need to reach out to the employee within the first 24 to 48 hours to review the workers’ comp process and provide reassurance that the employee’s healing is the number one priority.

Of course, not all claims are approved, and the best practice employers can adopt is communicating regardless if a claim is granted or denied. Keeping that flow of communication open is key to preempting fear of losing a job or not getting paid, they said.

“You cannot over-communicate,” added Colburn. “No worker has ever said ‘my boss told me too much about workers’ compensation.’ ”

3) Supervisor training.

Communication is a great tool to have when it comes to advocacy. And Stack and Colburn said supervisors who have been trained in these communication best practices tend to have great results when it comes to avoiding litigation. They are taught how to listen and how to relay information during a claim. Most importantly, they said, the supervisors are taught to use empathy when listening to their employees.


In fact, they showed data from one study, which found supervisors who had just 1 to 1.5 hours of best practices training had a dramatic decrease in the rate of claims going to court.

Stack and Colburn further provided attendees with three ways to measure how well these litigation avoidance strategies are working:

  1. Track lag time in claims. See how long it takes from an injury to be reported to when a claim is either approved or denied. By being active communicators and listeners in the process, supervisors will be able to see how that lag time impacts each employee and what might stem from that wait period.
  2. Review the return-to-work time frame. Ideally, said Stack, 90 percent of injured workers with non-catastrophic cases should be back to work within zero to four days of initial injury. This will help eliminate the fear of not receiving payment.
  3. Finally, watch litigation rates over time. If the avoidance strategies are in effect and everyone is doing their due diligence, then employers should start to see rates drop. &
Autumn Heisler is the digital producer at Risk & Insurance®. She can be reached at [email protected]

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