As I wrote about earlier, Commissioner Sviggum and the WCAC are proposing various changes to the current workers’ compensation system. Some of the proposed changes will drastically cut into injured workers’ entitlement to benefits.

An incentive not to hire a lawyer

For example, employees who resolve their claims within 30 days without hiring an attorney would be entitled to a 10% bonus.

This looks nice on the surface, but looks can be deceiving.

Employees may think they are getting more, but it is very likely that unrepresented employees will be taken advantage of by the employer and insurer. With the 10% bonus, it may be that much easier to persuade injured employees to take less than they should for a claim.

There are several advantages to hiring an attorney:

• An attorney knows the rules of procedure,
• An attorney has experience in trying cases,
• An attorney knows what evidence to submit,
• Mistakes made by an unrepresented employee may not be fixable, and
• An attorney’s perspective is objective and not emotion-driven.

If the thought behind the proposal is to cut the cost of litigation, then instead it should be the insurer that needs to be scrutinized.

Under Minn. Stat 176.081,

In no case shall fees be calculated on the basis of any undisputed portion of compensation awards. Allowable fees under this chapter shall be based solely upon genuinely disputed claims or portions of claims, including disputes related to the payment of rehabilitation benefits or to other aspects of a rehabilitation plan. The existence of a dispute is dependent upon a disagreement after the employer or insurer has had adequate time and information to take a position on liability.

(Emphasis added.) If the insurer adequately evaluates the claim, there can be no attorney fees, even if an attorney is retained. The work comp system already discourages attorney involvement in undisputed cases where the insurer has picked up the claim.  The work comp system should not discourage attorney involvement on disputed claims, as well.

The proposed system only promotes and encourages an injured employee not to seek out competent advice. It encourages abuse and gives insurers and employers an incentive to take advantage of workers, like dangling a carrot but substituting a lump of coal, to mix a metaphor.

A Workers’ Compensation Collaborative (WCC)  similar to that of the Union Construction Program.

In theory, these programs are intended to cut costs and allow the employer and insurer to manage the injured workers’ costs.

Under the proposed program injured workers would have:

• Limited treatment options within the WCC, and
• Alternative Dispute Resolution process consisting of informal assistance, mediation and arbitration in-lieu of the statutory dispute resolution process.

Now, it has been alleged that such a system has been “successful” and has produced “great results” in returning the injured worker back to work. However, I am skeptical to believe that this system would be best for Minnesota. As I wrote on earlier, many have actually had to wait years in this system to get any benefits. Moreover, there are several downfalls.

Limited treatment

Under this program the injured employee would be required to treat with only the treating doctors allowed under the plan.  Presumably, if the injured employee’s treating physician, with whom the employee may already have a relationship with, he or she may not be able treat with that physician.

This could be an obstacle for injured workers to get the treatment they need. In some cases, if the treatment is not approved, the injured worker may have to be the one to pay for it.

Mandatory Binding Arbitration

Under the current workers’ compensation system, it is not required that the parties undergo arbitration. If passed, arbitration would likely become the more predominant dispute resolution tool.

Arbitration is meant to be a “final” and “binding” decision as a quick and inexpensive way to resolve the matter.  Incidentally, unlike the system we have now, you may be unable to appeal the decision. Appealing an arbitration decision is very difficult and it is hard to get a court to review or vacate the decisions.  In limited situations the decision can be appealed if there is proof of:

• Corruption, fraud or undue influence,
• Arbitrator was corrupt or biased, or
• Arbitrator exceeded his/her power.

Other Recommendations

Some of the better recommendations are:

• Indemnity benefits are reduced if alcohol or drugs are found in your system,
• If a minor suffers a work injury he/she is entitled to double compensation, and
• No multiple IMEs (independent medical exams).

If you would like to listen to Commisioner Sviggum talk about his proposal, you can podcast it on LexisNexis.

(photo: Area Voices)