For injured workers who have never had a Missouri workers’ compensation claim before, or gone through one with a family member, friend or loved one, the delays that plague the MO work comp system are maybe it’s most frustrating problem on a long list of problems.
Even though I am in my fortieth year of helping injured workers, wrote a book on the subject, have won my share of awards and lecture to others about MO WC regularly, I often don’t have the answer that a client wants – or needs – to hear about why it is taking so long to see a doctor, why the case isn’t settled, or why the next court date seems so far off.
I tell my clients that these cases have a life of their own, and move forward at whatever pace they do because of reasons almost entirely out of their control or mine. Even though hopefully everybody understands that clients need treatment – they are living in pain while they wait for an appointment, that doesn’t get a suffering client the treatment he or she needs, or pay the rent or buy groceries, but it is, for better and mostly for worse, the truth.
Doctor’s appointments: None of the rest of a case happens until my client sees at least one company doctor: no treatment is offered, no weekly checks are approved, no settlement offer is made. All those decisions depend on what the company doctor says in his or her written report to the company.
This process alone has a lot of built-in hurdles. In many cases, a decision has to be made by the company as to what kind of doctor needs to treat a worker’s injury. This sounds simple, but sometimes it is not, especially for clients outside of the St. Louis or Kansas City areas (and particularly so for clients living outside the State of Missouri) and for clients who have uncommon injuries: there are fewer experts willing to get involved in workers’ compensation claims for those suffering from heart, lung or psychiatric problems, for example.
Once a doctor is selected, a date for an office visit must be set, and many experts, especially the best ones, have an appointment book that is full one or two or more months into the future.
Once the office visit happens, the doctor has to write a report. That alone can take longer than most of us think is appropriate. Then that report has to be sent to the company and reviewed by the claims representative.
If the doctor recommends testing or treatment, that medical care will not take place until the company approves it. I like to say that companies tend to throw nickels around like they’re manhole covers. Approval of even routine measures can take much longer than seems necessary, while it seemingly works its way through a company’s bureaucratic red tape.
What can a lawyer do about this? Well, the MO WC system allows for what is known as emergency “hardship” hearings, especially where treatment and weekly checks have started and then been stopped. BUT, before there is a hearing there is almost always a pre-trial mediation held, and if there is a hearing, the attorney must have a doctor’s opinion saying what medical care is needed for his or her client’s work-related injury. That usually means setting up an independent medical evaluation, waiting for the independent doctor to write a report, and, perhaps, scheduling the doctor’s testimony at a time that not only the doctor and the attorney are available but also when the company’s attorney can attend.
The workers’ attorney has an option to submit the independent doctor’s written report without testimony, but even if that is a good idea – and it usually is not, since the doctor will often need to explain his or her reasoning – the company attorney can force the doctor to testify. And once the independent doctor testifies, the company attorney can, in effect, start the process all over again by scheduling a doctor’s examination on behalf of the company, then waiting for that doctor’s report and, perhaps, scheduling that doctor’s testimony at a mutually convenient time.
Once the doctors have testified, the hardship hearing can take place. The workers’ compensation administrative law judge (“ALJ”) who hears the case will not make his or her ruling on the date of the hearing, but will take some time to carefully review the evidence, including the workers’ testimony, any testimony of any doctors or other witnesses, and all the medical records or other relevant documents.
And if the company loses, it has a right to appeal the ALJ’s decision to the labor and industrial relations commission of Missouri, a process that can take as long as a year.
All of this process can and usually does take months to play out, even while the injured worker wakes up in pain in the middle of every night.
To make a short story long, so to speak, the last hardship trial and appeal that I pursued for a client all the way through an appeal took TWO YEARS from the date of her injury until she finally got the treatment she needed. This is Missouri’s idea of an “emergency” response to an injured worker’s need for treatment.
Settlements. The explanation on settlements can be simple: There can’t be a settlement without an offer to accept, and I can’t make a company make an offer.
I have never worked for a company, so I can’t say for sure why it takes me so long to get offers for some of my clients. From time to time and case to case, company lawyers will give me a number of reasons that their client has not made my client an offer.
One common excuse goes back to the company doctor. Without going through the delay of scheduling an appointment for my client to see a company doctor and getting a report from that doctor, some claims representatives cannot make an offer. There is often a delay in even scheduling that doctor’s appointment while the claims representative or the company attorney request and obtain medical records for the expert to review, a process that can take months, and take even longer if the expert requests more records or recommends testing.
Other reasons can, as I understand it, be internal: companies and/or company’s law firms, have internal “red tape” as to what must be done before an offer can be made. Some claims representatives cannot settle a claim for more than a certain amount without the permission of their boss, their boss’s boss, or even higher up the chain of command. The more a case is worth, the longer it may take to settle just because it has to be approved at more than one level of the company.
Another reason for delay in some cases is Medicare. For my clients who are eligible for Medicare or already on it, Medicare requires the parties to consider, and plan for, any future medical expenses for my clients’ work-related disabilities. This alone can often take months to get done; I will explain why in a separate KorteLaw FAQ Blog.
Of course, in some cases, the company views the claim a lot differently that I do, or my client does. When that is the case, or when I have proposed a settlement without a response, I will request a court date.
Court Dates. For sometimes better and sometimes worse, the Missouri workers’ compensation system depends on court dates to keep cases moving forward, towards trial or settlement.
The Missouri division of workers’ compensation has eight offices throughout the state that set cases for various types of purposes. The number of ALJs has gone up and down for various reasons over the years: right now the number is down, with 8 ALJs having recently been terminated.
Once an attorney has requested that a case be set, it is out of the attorney’s hands as to how soon the case will appear on an ALJ’s docket. Each division office has its own set of rules as to how it controls its caseload, and much time is spent just on waiting for a court date.
Forcing the attorneys appear before an ALJ can help get a case settled, or decided by a trial, if necessary. However, the fewer the number of judges, the slower the system moves, whether to help with settlements, or to try cases. Having more judges would help get cases decided sooner, either by settlement or trial.
While there are reasons that MO WC moves slowly, knowing the reasons doesn’t always help the waiting be less painful, or an injured worker’s bill collectors be any more understanding. Having an experienced attorney who knows the ins-and-outs of the system and is familiar with not only the process but also the lawyer defending the injured worker’s claim can sometimes – but not always – help nudge things along more quickly.