Sick Time

A guide to getting workers’ comp.One hundred years ago, work in New Hampshire was tough on your health. We’re not talking “tough” like typing too much gives you numb fingers or achy wrists, or tough like lifting that box of copier paper made something go twang! in your back. We’re talking tough like the machine you were tending would just as soon eat you as weave up some linen.”There wasn’t any thought back then that carpal tunnel came from working,” says Manchester attorney and workers’ compensation expert Ed Stewart at the law firm of Shaheen and Gordon in Manchester. “The problem was getting your hand stuck in the loom.”And that’s how workers’ compensation began. “When the system was enacted in 1911, the focus was on physical laborers,” Stewart said. “It was developed to give workers a weekly stipend to get by and to pay for their medical care, then get them back to work when they got better.”Fast-forward a century. Workplaces in general are safer now, and today injured workers receive 60 percent of their average weekly salary, plus medical expenses. The benefits are paid through insurance that all employers are required to carry. But the Manchester textile mills are long gone, as are most of the North Country wood and paper industries, and their disappearance has highlighted flaws in another aspect of workers’ compensation protections.”A significant injury often restricts workers from being able to lift or be on their feet, and that makes them difficult to employ in an economy where, traditionally, the jobs are labor-intensive,” says Paul Chant of Cooper Cargill Chant in North Conway.That’s a “workers’ comp” problem because, in addition to keeping injured workers fed as their bodies mend, the system is also supposed to provide retraining for those who can’t return to their former jobs. But in a contracting economy, where the old jobs are disappearing and few new ones are springing up, what do you retrain someone to do?”In the early 1980s, if you could get a job in the mill, it was hard to justify going to college,” Chant adds. “How do you tell someone who worked there for 25 years that they made the wrong choice now that they’re 43 and the mills have shut down? It’s especially sad for the group between 50 and 65: they’ve been out in the workforce for a long time, out of the education system for a long time, and when their bodies get injured, new jobs just aren’t there.”Even in the new “knowledge economy,” workers’ comp doesn’t pay for a college degree. “The statute only requires one year of schooling,” says attorney Vicki Roundy of Dover. That’s often enough to retrain a construction worker to become a building inspector or help a factory worker become a licensed practical nurse. But if that seems like an old-economy worker’s ticket to their dream job, Roundy suggests that you think again.”The trade-off is the person with the wound is waking up in pain every day, so if that’s what you want, then yeah, OK, you get the opportunity to get some schooling.”But to get that opportunity – or even the 60 percent stipend and medical expenses – there’s often a gauntlet that workers must run. “It’s the usual array of interests: people who have money, people who need money and lawyers on either side, often resolving their disagreements before a state hearings officer. And everyone is lawyered up.”A lot of times the insurance company calls the shots,” Roundy explains. “The employee has to report an injury within a certain number of days, the insurance carrier makes the decision to pay or sends out written denial, and the employee can request a hearing with the state labor department.”The insurance company also has the right to send the employee to a physician of its choosing for an “independent examination.” Often the insurance company’s doctor has one opinion and the worker’s doctor has another.”Doctors disagree on disability or permanent impairment, or whether certain care is required,” Stewart says. “I’m not sure they are always looking at the case from the same perspective – the treating physician has the background and history with the patient, and the other doctor may have a one-time exam.”Front-line physicians are also less likely to make compelling cases for their patients – at least, not without some prompting. “Treating doctors, for the most part, don’t have the time or inclination to write detailed reports,” Stewart says. “Their business is to make people better, so you often get four or five lines describing the situation and that doesn’t help the claimant very much. The more detailed the explanation, the more likely you’re going to win the case.””People have talked about, could this system work without lawyers?” says Chant. “I think in many aspects of society, we help minimize conflict rather than maximize conflict. Unless someone has the skill set to know how to go to the worker’s doctor and address the issues that are in conflict with the (insurance company’s) independent examiner, that’s not going to come out in hearing, and that’s where we earn our keep.”Stewart and Chant also questioned just how independent the insurance company’s “independent examiner” physician actually is. “A few individuals have made it a substantial part of their professional occupation to do hundreds of examinations per year for insurance carriers,” Chant says. “If you’re getting hundreds of thousands of dollars per year, your objectiveness is brought into question. I would be fearful for an injured claimant who doesn’t have help facing a doctor who may not be terribly objective.”The hearing process is generally informal, with relaxed rules of evidence and procedure that help to speed things up. The session is limited to just one hour unless the litigants ask for more beforehand. Hearing officers are encouraged but not required to render a decision at the end of the hour, and Roundy says about 95 percent of cases are ruled on within 30 days.But that’s not the end. “Getting the claim accepted is only part of the battle,” Roundy adds. “Where we become important is in things like the vocational and rehabilitation aspect. Is the employer giving you a job that you’re able to do, something that is mentally stimulating?.”And as it turns out, the same slow economy that makes it hard to find replacement jobs is actually driving many of today’s workers’ compensation claims. New Hampshire has one of the nation’s lowest workers’ comp claim rates, but it’s still significant.”Compensation claims go up when the economy goes sour,” Roundy says. “Employers cut back on number of employees, so now you have two people lifting what four people used to lift or making as many widgets as four people used to make. When employers cut back, injuries go up.”You can get workers’ comp for disabilities due to stress, says Stewart, but it’s not just the stress of the job being tougher than an employee might prefer. “Stress claims are the most difficult to win,” he explained. “You have to show an incident happened at work to cause it, and you have to have a physical manifestation such as headaches or high blood pressure.” The incident, he added, has to be more than a confrontation with the boss, such as a stickup at a bank or convenience store. And you have to have a medical opinion from a doctor. And the other side may have an opinion from another doctor. And let the games begin.”My view of the world is, an employer is supposed to pay out legitimate claims,” Roundy says. “Ninety percent of the people involved in the system – employees, employers, insurance carriers – do what they’re supposed to do. But of course in the other ten percent you have some employers who do totally contrary to that, who are not completely honest about what has occurred or are even proactive about not doing what they’re supposed to do. They’re the game players.”Stewart agrees. “Some group will always be unhappy with the way they have been treated,” he says, “but overall, I think the system works well.” NH