The conflict for doctors about work comp

The old doctor is gruff and authoritative.   He is at a workers’ compensation seminar, addressing the young lawyer who is the speaker.  He asks, bluntly:

When you are representing an injured worker, what result do you want?  Do you want him to get well and go on with his life, or do you want the biggest settlement?

The lawyer doesn’t give a direct answer.  The doctor says he is one of only three doctors in New Mexico in his specialty who will treat patients under workers’ compensation.  Most doctors, he says, refuse, because they hate getting involved in legal conflicts.  This doctor doesn’t mind giving  depositions.

Later he talks with me about the challenge of matching wits with young lawyers.  He almost could have used the word “whippersnapper. ”  I tell him that he has publicly asked a lawyer the most important — and rarely asked —  question on the legal side of the workers’ compensation system:  what do you think is “winning” for your client?

When a worker has been injured and is temporarily unable to work, the worker gets paid every two weeks.   To continue getting full benefits, he has to stay disabled — but he is told it’s his responsibility to get better. In psychology this is called a perverse incentive.  I call it scrambling the brain.

A plaintiff attorney’s job is generally to get his client as much money as possible.  In work comp, the way to get more money is to stay disabled.  Some injured workers are genuinely disabled, and for them the money is lifesaving, but for others, disability is an attitude with destructive consequences.  It’s impossible to draw a distinct line — but, as health care practitioners know, some workers could have risen to the challenge of an injury, but give in to it instead.

The worker has a good chance of returning to normal if he can go back to his old job — his wages will be considerably higher than the insurance check — but it’s very different if he can’t. A forgotten part of New Mexico’s 20-year-old workers’ compensation reform was throwing out mandatory vocational rehabilitation, intended to help such workers find other work.   The service — run by private practitioners hired by the insurers — was widely believed to be ineffective and wasteful, but when it was dismantled, nothing else was brought in to fill the gap.

An injured worker might be unable to return to his old job because he can’t do the work any more, or because his employer legitimately had to hire a replacement while he was recovering.  It’s common in work comp circles to talk about encouraging employers to rehire injured workers, but nobody is talking about what to do for workers who will not be rehired.  Well, one person is.  That would be me.

So the system itself encourages some workers to recover as slowly as possible, which makes them particularly unattractive to doctors.   A doctor once told me, “We like to treat people who want to get better.”

The new director of the Workers’ Compensation Administration, Ned Fuller, stated at the same conference that one of his goals is to increase the number of physicians who are willing to treat patients under workers’ compensation.  He faces quite a challenge.

Triple Spaced Again, © New Mexico News Services 2011

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One Response to The conflict for doctors about work comp

  1. Scott Goold says:

    Hello Merilee ~
    You are writing about a complex and challenging topic for all of us who practice in the workers’ compensation field. I would like to modify one statement. You wrote, “In work comp, the way to get more money is to stay disabled.”

    When an injured employee receives workers’ compensation indemnity benefits, they are generally paid 2/3rds their regular salary for the duration of the temporary disability. The way to earn MORE money is to RETURN to work full time.

    The system is designed to provide a “safety net” for injured workers. Yet the worker makes the most money by returning as quickly as possible. If the injury is permanent, then this formula becomes more complex, as you know.

    Thank you for opening a public discussion on an extremely important topic! It’s great to have Triple Spaced Again!

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