Journal of Occupational & Environmental Medicine:
Letters to the Editor
Welch, Laura S. MD, FACOEM, FACP; Boden, Leslie I. PhD
CPWR—The Center for Construction Research and Training, Silver Spring, MD (Welch)
Department of Environmental Health, Boston University School of Public Health, Boston, MA (Boden)
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To the Editor: In the recent article by Bernacki and Tao entitled The Relationship Between Attorney Involvement Claim Duration And Workers' Compensation Costs, the authors report on an analysis of workers compensation data from the state of Louisiana, looking at the association between attorney involvement and claim cost. Attorney involvement was associated with both higher medical and indemnity costs and increased claim duration when controlling for days paid of lost time.
This paper is an empirical analysis of behavior in the legal system, but it presents data analysis without an underlying behavioral model. The Bradford-Hill Postulates suggest that a plausible biological mechanism is an important component of a causal assertion. Similarly, a plausible description of the motivation of injured workers, insurers, and attorneys should underlie a study attempting to describe behavior. An important behavior is injured workers' choice to seek attorney representation.
Injured workers may seek attorneys because they are denied income benefits or payment for medical care, because their benefits are cut off before they are ready to return to work, or because employers fire or otherwise discriminate against them. With these reasons in mind, it should not be surprising that claim costs are higher when injured workers are represented by attorneys than when they are not. Higher medical and income replacement costs amount to higher benefits from the perspective of the injured worker. The authors suggest that these are “excess costs.” Since these costs reflect additional benefits to injured workers, the authors apparently think that these additional benefits are excessive. However, recent studies of benefit levels suggest that many workers receive benefits that are well below what many would consider adequate, much less excessive.1–3
Perhaps the clearest conclusion we can come to from this paper (although we believe that no study is needed to show this) is that, if insurers were able to prevent injured workers from retaining attorneys, the insurers' costs would decline. In fact, they would probably decline considerably more than the paper suggests. In most states the only alternative to attorney representation is for workers to represent themselves. Thus, limiting access to attorneys would make it much easier for insurers to deny payments for lost time and medical care.
Let us look behind some of the numbers presented in the paper. Workers represented by attorneys in the 1 to 120 day category (Table 3) received indemnity benefits almost 80% above those of unrepresented workers. What could cause this? Indemnity benefits are the sum of temporary total disability (TTD) and permanent disability (PD) benefits (for the most part, since death benefits are a small proportion of all benefits). Logically, there are only a small number of possibilities to explain the higher indemnity payments of represented workers. We offer three: that earnings of represented workers are a lot higher than those of unrepresented workers (so that daily benefits are much greater), that represented workers received PD benefits more often, or that the number of days of TTD benefits was a lot higher. The first reason would suggest that the higher costs had nothing to do with attorney representation. If the average PD payment is higher among represented and unrepresented workers, this might suggest that some unrepresented workers in this group would have received PD benefits if they had retained attorneys. Alternatively, if the represented workers averaged more TTD days, then this is not a valid category for comparing the two groups. This raises the issue of confounding. TTD paid is a very limited indicator of injury severity. If other factors associated with TTD benefits (not to mention true severity itself) are also associated with attorney representation, then the cost-attorney association may be spurious. Factors predictive of lost work time include demographics, symptom severity, functional limitations, lack of job accommodation, job physical demands, job psychosocial conditions, worker psychosocial characteristics, and worker satisfaction with medical treatment.4–10
The authors do not provide a behavioral explanation for why claim duration is longer among represented workers. They appear to believe that this is caused by attorneys delaying return to work; in the discussion, they claim to have presented evidence for this, but we can find none. Certainly the mere fact that workers represented by attorneys receive more lost time benefits (the authors' severity measure) hardly supports such an assertion. Perhaps, the authors think that longer claim duration has something to do with delayed return to work. Here again, understanding behavior in the workers' compensation system is helpful. Durations are much longer for claims with attorney involvement because they cannot be closed until the parties settle all disputes or a workers' compensation judge makes a decision. In Louisiana, disputes often go to state-administered mediation, which take time to arrange. Only a minority of mediated cases are resolved, after which there is a delay before a hearing can be set. Most hearings involve at least one postponement. As a result, long delays are inherent in the dispute resolution process and lead to longer duration claims. This has nothing to do with attorneys' delaying return to work. In some cases, attorney involvement may avert premature claim closure—closure before temporary disability has ceased and before all appropriate medical treatment has been delivered. Indeed, this may be one reason that claims with long duration of TTD payments are more likely to have attorney involvement. But this has nothing to do with delaying return to work.
We have a number of other concerns about this study but the issues we raise here seem most germane to the authors' main conclusions. The impact of attorney representation is important, but we think that this paper adds little to our understanding of this issue.
Laura S. Welch, MD, FACOEM, FACP
CPWR—The Center for Construction Research and Training
Silver Spring, MD
Leslie I. Boden, PhD
Department of Environmental Health
Boston University School of Public Health
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