Miscommunication that leads to unecessary lawsuits

July 30th, 2007 by Julie Ferguson

A recent survey from Watson Wyatt found that many workers struggle with health care terminology. I think Watson Wyatt might be surprised if they tried this same survey on managers – the results would probably be similar.
While this news may not be all that startling – health care is growing increasingly complex in structure and terminology – it does provide a springboard to discuss one of our favorite themes: employee communication. If employees struggle with health care terminology, multiply that by an order of magnitude for the impersonal and often scary terminology that is part an parcel of the workers comp system. We have long maintained that poor employer communications and/or employee misunderstandings are at the heart of much needless litigation. Workers comp communications are all too often shrouded in an aura of mistrust and suspicion. Poor communications often begin right at the point of a work injury, when a previously valued employee instantly morphs into the dread “claimant.”
Many otherwise smart employers we’ve met have magical thinking when it comes to clearly communicating workers comp information to employees. Some have a head-in-the-sand attitude that ignoring the issue will make it disappear. Others think that explaining workers comp in advance of an injury is akin to giving employees a cookbook for fraud. Actually, the opposite is true: the absence of information creates a vacuum, one that is all too frequently filled with misinformation and mistrust – and the very willing guidance of an attorney.
One employee’s case study
I have some knowledge of being on the receiving end of poor communication from my first brush with workers comp a few decades ago when I tripped and fell down the stairs of a social service agency, my first full-time employer. I twisted my ankle badly but continued working until later in the day when the ankle swelled considerably. I told my boss I was going to have it checked out. No one suggested a doctor or gave me any information.
At the emergency room, the intake person asked me if my injury happened at work or at home. When I said “work” I instantly became a persona non grata. The clerk frowned, turned to another person and said something like “she isn’t insured, she’s workman’s comp – what should I do with her?” The answer was “have her wait over there” and I sat “there” waiting for hours. While waiting, I worried. I had tried to let them know that I did indeed have insurance, but the clerk would have none of it. She said my insurance wouldn’t be valid because the injury happened at work and I would need to file a claim with the state workman’s comp board to see if they would pay for my injury or if I would have to pay for it myself. Great. I didn’t make very much money then – social service paid poorly and I lived one paycheck to the next. I was worried about how I would pay for things if the medical cost was high.
When the doctor finally got to me, he greeted me with the information that he hated dealing with workman’s comp claims. Nevertheless, he wrapped my ankle, which turned out to be a sprain, and I was given a pair of crutches. The doctor suggested that since I was on workman’s comp (whatever that was, I still had no idea but it sounded increasingly awful) I should probably not go to work until I was better, a time frame that was vaguely suggested as anywhere from a few days to as much as a few weeks. My brother gave me a ride home. I told him about the insurance problem and he said if it was workman’s comp, I would probably have to get a lawyer. Great. More potential problems.
I took the next day off because my ankle hurt and I couldn’t get the hang of the crutches. I called my boss to let him know I would be out and to ask if he knew about the the insurance/workman’s comp matter. He said “Why did you have to tell them it happened at work? Now our insurance rates will go through the roof.”
The whole situation was baffling and uncomfortable because I had no idea what “workman’s comp” was. Plus, I usually had a great relationship with my boss, but he seemed angry at me, implying I had caused a problem for for the agency. So now I was doubly worried – I didn’t know who would pay for the doctor and I didn’t know if my boss would pay for my sick time since he seemed annoyed with me. Plus, I was uncomfortable that he suggested I should have lied.
Hobbling on crutches, I returned to work the next work day, a Monday. The ankle healed, my boss made a big deal out of saying he paid for my injury, and things went on apace. For the next three years, in every budget meeting, I and the rest of the staff were reminded that the reason our budget was off kilter was because workers comp rates were outrageous ever since I had filed my workman’s comp claim. This was embarrassing for me.
Seeing the light
It wasn’t until many years later when I joined Lynch Ryan that I learned how ignorant my employer had been, how ignorant the provider was, and how lucky my organization was that I was a devoted employee and didn’t take my brother’s advice. My employer not only had encouraged me to fraud, he didn’t tell me anything about statutory benefits, which would have greatly eased my fears. The doctor also misinformed me, giving advice that would have had me needlessly malinger – and probably recover more slowly than I did.
My situation wasn’t unusual. At Lynch Ryan, we have seen thousands and thousands of employees who meet with a similar vacuum of information and suffer similar anxieties after a work injury. Usually, financial worries and health restoration are the top two concerns of an injured worker and many employers do a poor job of providing reassurances that there is a safety net in place or explaining how the system works. Worried workers fill the information void with misinformation from a friend or relative. Today, they might find the information online. Go ahead, Google work injury and see where your employees are likely to get their information.
Over the years, some large employers have grown more sophisticated in their workers’ comp communications to employees, but we still frequently see room for improvement. And the lion’s share of all employers – some 80-90% – are small employers with fewer than 25 employees. At many of these small workplaces, the situation for an injured worker today would not be far different from my experience a few decades ago, right down to the dated “workman’s comp” terminology.