Playing the Workers' Comp Waiting Game Amid the Cost of "No"

I moderated a panel at the American Bar Association Mid-Winter Conference in New Orleans this past week. Our topic was concerning delays in treatment of compensable claims, with a look at the causes and consequences regarding both expense and outcomes for the industry. The panelists were Florida Judge David Langham, Defense Attorney Mike Fish of Alabama, and Claimant’s Attorney Robert Nelson of Illinois. It was fairly clear that for many injured workers, the workers’ compensation waiting game is a long and arduous one. Especially once their case becomes litigated.

One of the most extensive parts of the discussion came when the time it takes for a judge’s opinion to be rendered was brought up. In some jurisdictions, the wait is not that long. In Florida, the expected time is within 30 days of a hearing. In Maryland, it is just two weeks. In Alabama, the decision has been known to be issued during the hearing, but that is not always the case. Other states, however, fare much worse when it comes to timely judicial opinions. 

In Pennsylvania, depending on what part of the state the case is heard, litigants may wait 6 months to a year for their case to be decided. Apparently, cases in western PA are somewhat quicker to resolution, coming in about 3 months or so. It is the eastern, more populated area that lags far behind in this area. And one attorney in the room reported they had a Longshore case heard in January 2021, and they were still waiting for an opinion to be rendered.

That is 14 months and counting, folks, while an injured worker waits to see what the rest of their life will look like. And that doesn’t include the time it took to get to that hearing, and we haven’t even talked about the appeal process at this point. 

The issue of delays, of course, does not simply reside with the workers’ comp judiciary in certain states. There were ample roadblocks to a speedy process on the way to that hearing. Injured workers wait for doctor’s appointments and tests. They wait for investigations and approvals. They wait for instructions and information. And once they have an attorney, the wait grows longer, as even a simple follow-up with a doctor becomes a menagerie of scheduling activities. 

One of the questions posed to the panelists was, “Are delays in our system malevolent or systemic in nature?” It was pretty clear from both panelists and a very interactive audience that delays in care and cure for injured workers in workers’ comp is more systemic in nature; it seems baked into the process in many ways. 

That is not to say that malevolence or malintent does not exist. In fact, it could be argued in some cases that negligence or malice in the claim handling process will lead to those litigated scenarios, where time stands still and “tomorrow” is at least a month away. 

Another point that was not directly covered during the panel, but was clear from discussions both before and after, is that employers will pay a substantial sum of money when those cases get litigated. Depending on the jurisdiction, it is possible legal costs of paying both plaintiff and defense councils might at times exceed the benefits awarded the person at the center of the case. This should give claims managers pause and require them to really consider the efficacy of a denial when it is issued. Never has the axiom, “pick your battles wisely” been more appropriate. The cost of that “no” may far exceed any short-term benefit initially perceived in the process. 

For all of the discussions during this session, there was one factor that stood out at every juncture. The lack of clear, transparent, and understandable communication was at the core of almost every point of delay in the processing of an injured workers’ claim. Poor communication, along with initial delays at the outset of an injury and some misguided “no’s,” can set the path for a long and arduous journey; a journey that is expensive for the employer, as well as an interminable wait for a life interrupted.

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