Doctors don’t like workers’ compensation

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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 workers’ 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 workers’ 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.

© New Mexico News Services 2011