Workers’ Comp Is a Tug-of-War Employees Are Losing

Workers’ Comp.

It’s a simple, familiar term that adds up to an aspect of the American labor system, and an area of the law, full of intricacies that are anything but simple.

To employers it’s a battleground with high stakes.

To workers and unions it’s all about fairness and holding the line on treatment and compensation levels getting rolled back across the board, or being unfairly diminished in individual cases through an administrative process called Utilization Review that employers or insurers can use to get an “unofficial” second opinion about the necessity of treatment a physician is seeking.

“It’s been really collapsing in terms of what workers can get,” says Attorney Barry Moller, a Cramer & Anderson Partner who specializes in workers’ compensation law and serves on the Chairman’s Legal Advisory Panel of the State of Connecticut’s Workers’ Compensation Commission.

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Attorney Barry Moller.

Attorney Moller is a seasoned practitioner in a system that sounds like a modern concept that might have originated with the Industrial Revolution but actually dates back to ancient civilizations.

According to a brief history of workers’ compensation published in The Iowa Orthopaedic Journal, a system of providing compensation for injuries was included in the famous Code of Hammurabi from 1750 B.C.

The Workers’ Compensation Commission website explains the advent of a formal system in Connecticut:

The Workers’ Compensation Act (also known as Chapter 568 of the Connecticut General Statutes) was first enacted in 1913. There have been numerous changes to the Act since that time, but the main premise of the Act has always been to provide wage replacement and other benefits, as well as medical treatment, for those employees who have been injured, disabled, or killed while performing their jobs.

“A good workers’ compensation lawyer tries to get the most out of the act in terms of wages, impairment benefits and quick medical treatment,” said Attorney Moller, who earlier this year participated in a meeting in Hartford conducted by Connecticut Workers’ Compensation Chairman John A. Mastropietro.

The meeting combined the Chairman’s Legal Advisory Panel and the Medical Advisory Panel, and attorneys and doctors from across Connecticut addressed discrepancies contained in the American Medical Association’s Sixth Edition Guide to Evaluation of Permanent Impairments.

The AMA’s guide is the bible of workers’ compensation, and injuries to employees are assigned a grade within their impairment class—or type of injury.

Grades rate a permanent partial disability, for example, as a percentage of the body part, and that percentage is used to determine the level of compensation an injured employee receives.

A total knee replacement is one good illustration of the battles that are taking place concerning permanent partial disabilities, Attorney Moller said.

In cases in which medically addressing a total knee replacement situation produces a fair result, the AMA grade has been reduced from 50 to 37 percent—which means compensation in such a case has decreased by 26 percent.

“When the AMA did the Sixth Edition, they were essentially just fed up with lawyers,” Attorney Moller said, “So they cut everything by nearly a third.” As a result, the Sixth Edition has been rejected by numerous states.

At the meeting in March, permanent impairment ratings for the neck was on the agenda—and resolving discrepancies between AMA Guides’ Fifth and Sixth Editions.

“Backs are worth 374 weeks of payments, but necks are only 117 weeks, which is crazy because it’s all part of the spinal column,” said Attorney Moller.

At the meeting, the Workers’ Compensation chairman suggested the Legal Advisory Panel accept a proposal from the Medical Advisory Panel Sub-Committee, composed of physicians who deal specifically with permanency impairments ratings to the neck.

The physicians present indicated they needed a more consistent method to ascribe impairments to injured workers’ cervical spines. They will be presenting a proposal to Chairman Mastropietro that will be reviewed by the Legal Advisory Panel.

Another problematic situation for injured employees is the rise of a system called Utilization Review, in which the appropriate medical treatment for an injured worker ends up being determined by what Attorney Moller called a vending company. The process is an end-run around the Workers’ Compensation Commission.

“It’s some doctor reviewing it in Texas,” remarked the attorney, who describes a process that is not authorizing levels of treatment necessary for getting employees back to work—the goal of the workers’ compensation system.

“And nobody has a say about it until you bring it to the commission at the end,” Attorney Moller said of a hearing process available in Connecticut.

“If they have an injury that doesn’t get treated, they’re going to lose that job,” Attorney Moller said of employees, showing how much is on the line as workers’ compensation attorneys attempt to push back and restore equity and fairness to the system.

The stakes are so high and the system so complicated that any employees who find themselves in need of workers’ compensation should retain a good attorney to help guide them.

Attorney Moller is a Cramer & Anderson partner based in the New Milford office. He may be reached at (860) 355-2631 or by email at bmoller@crameranderson.com.

The firm’s team of attorneys dedicated to representing injured workers also includes Attorneys Scott McCarthy, Thomas Mott and Ken Taylor in the New Milford office and Attorney Chris Sochacki in the Litchfield office. Attorney Lisa Rivas in the Danbury office also handles workers’ comp issues, including for Spanish speaking clients.

Cramer & Anderson also has offices in Kent and Washington Depot. For more information, see the website at crameranderson.com.