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How employers should choose attorneys to defend comp claims

Risk managers look for reputation, experience, accountability

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How employers should choose attorneys to defend comp claims

Selecting an effective workers compensation defense attorney is an inexact science, risk management professionals and attorneys say.

Relying on attorneys' reputations is a good starting point, experts say.

But even after retaining an attorney, some risk managers and directors of workers compensation consider the relationship a trial run until the attorneys' response to various case management guidelines are evaluated.

The challenge in selecting an attorney is that it is “not like trying to draft a third baseman” by relying on various statistics, said defense attorney Rusty Watts, a partner with Swift Currie McGhee & Hiers L.L.P in Atlanta.

“There are lots of different ways to handle a workers comp claim,” Mr. Watts said. Employers and attorneys sometimes do not share the same philosophy, though attorneys can adapt, he said.

So when risk management professionals are looking for successful and like-minded attorneys, “word of mouth is key,” he said.

Regardless how successful an attorney is, the candidate must be familiar with the industry in which the employer operates, several risk management professionals said.

“They have to understand our business and have similar clients,” said Diane M. Pidgeon, the Park Ridge, Ill.-based director of workers compensation for Advocate Health Care Network.

Tim Portale, assistant vp-environmental employee safety for Nashville, Tenn.-based hospital system HCA Corp., agreed.

“If a plaintiff's attorney is arguing that a client has a permanent injury, we want our attorney to know that's probably not true,” Mr. Portale said. Often, workplace accommodations allow the injured worker to return or perhaps the injury has no effect on the worker's ability to return, he said.

Richard J. Roberts, the corporate risk manager for Simsbury, Conn.-based Ensign-Bickford Industries Inc., demands more than having experience representing similar defendants. Attorneys must tour the company's worksites “to see what employees do,” which provides a perception that claimants' doctors sometimes do not have, he said.

The attorneys Mr. Roberts retains also must be one of their firms' top two attorneys, have experience representing injured workers and be respected by their states' workers comp judges.

Those overseeing risk management professionals agreed that an attorney's reputation among state workers comp board members is a critical resume item.

“You're pretty much seeing the same judges” from case to case, said Wayne L. Salen, director of risk management for Labor Finders International Inc. in Palm Beach Gardens, Fla. “The last thing you want to do is irritate them.”

After retaining an attorney, risk management professionals take wide-ranging approaches to evaluating whether a lawyer merits continued work.

For example, Mr. Roberts, who has had longstanding relationships with Ensign-Bickford's workers comp attorneys, said the 10 to 12 litigated workers comp claims the company faces annually are too few and disparate to require defense attorneys to follow case management protocols.

Mr. Portale said workers comp statutes in the 20 or so states where HCA operates hospitals establish various deadlines for attorneys.

In Michigan, “a fair number of employers are still extremely informal” in their case management guidelines outside of electronic billing reviews, said defense attorney Michael Brenton, a partner at Murphy, Brenton & Spagnoulo P.C. in East Lansing, Mich.

Others say they take a more formal approach.

Labor Finders' Mr. Salen has established some case management protocols, although the company does not similarly defend each of the 250 to 750 litigated cases it faces annually.

Mr. Salen's protocols include deadlines to report a case's status to his department and the case adjuster, billing transparency and, most importantly, 24-hour turnaround of reports after a case hearing or deposition.

“I can't tolerate a lengthy delay,” Mr. Salen said. “That's dollars to us,” because those are lost-time cases. “We're trying to compress the process” of resolving cases.

Advocate's Ms. Pidgeon has implemented guidelines on defense strategies, which attorneys are required to submit within 60 days after receiving a case file, and quarterly case reviews.

One law firm's “breakdown in communication” and inability to close cases prompted Ms. Pidgeon to fire it last year. “It became pretty blatant (that) we weren't that important” to the firm, which assigned lower-ranking and error-prone associates to Advocate's cases, she said.

One risk manager at a company that has employees nationwide and faces nearly 500 litigated claims annually maintains that while state statutes tend to control the pace of litigated claims, risk managers can take control by tightly managing their attorneys.

Fred O. Pachón, vp of risk management and insurance for Select Staffing Inc. in Santa Barbara, Calif., insists the two dozen defense firms he has retained nationwide meet numerous strict deadlines designed to resolve cases within 90 days, including developing a detailed plan of action within 10 days. Attorneys also must follow his case management methodology (BI, April 20).

Mr. Pachón's aggressive defense style does not mean Select Staffing fights every case to judgment. Attorneys have the authority to settle cases up to $15,000 so no opportunity is missed to close a case and avoid higher litigation costs.

“Any claim has a price tag,” and an employer can reach a relatively early settlement and avoid much higher litigation costs if it manages litigation aggressively, Mr. Pachón said.

Mr. Brenton agreed that early case assessments can be completed regardless of state statute.

But early settlements may not be possible, the defense attorney said. For example, he noted that Michigan law bars employers from settling on the future costs of an injured worker's disability sooner than six months after the injury occurred.