As our “Smart Leaders” series rolls on, today we sat down with Brad Young from Harris Dowell Fisher & Harris L.C. who specializes in work comp defense out of the St. Louis area. Brad is highly involved in the work comp community, writing guest blog posts, interviews, and contributing to groups on LinkedIn.
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WCI: Can you tell our readers just what you do in the world of workers’ comp?
BY: My practice is exclusively limited to workers’ comp defense and that means I’m defending insurance carriers, third party administrators, and, like you know, we call them TPA’s, or self-insured employers. A lot of employers have what’s called a self-insured retention which is kind of a hybrid, meaning that they pay the first, say,one hundred thousand dollars on a claim and after that it’s covered by insurance coverage. Even those situations I’m kind of working for both the carrier and what is in effect, a self-insured employer. That is predominantly my entire practice.
WCI: Where did you attend school and how did you get into law there?
BY: I went to St. Louis University of Law. I graduated in 1990. In law school I focused primarily on civil procedure and also trial advocacy, which interestingly enough, I know that a lot of folks don’t think that comp involves trial work. I try cases all the time for workers’ comp, both in Missouri and Illinois. That early focus on procedural issues and trial advocacy pays off even in the world of workers’ comp.
WCI: What person or persons have had the most influence in your life and why?
BY: As a Christian obviously I have to put Jesus at the top of the list. From a more practical perspective I had an uncle who was a businessman and he and I were very close when I was growing up so I learned that the practice of law is very different from the business of law. I know a lot of the attorneys are very good at practicing law but aren’t often very good at the business of law, and I’ve tried to keep both of those in equal perspective.
WCI: Obviously work consumes a ton of our time so what kind of hobbies do you like to do to kick back and relax a little bit?
BY: My family and friends all know me, I am literally a geek. I built my first computers. The only thing I’m missing is tape on my glasses. Most of my hobbies involve tearing computers apart or, more often,helping friends,family,relatives,or strangers with how to operate their cell phones, laptops, and desktop computers.
WCI: If you had a few more hours in the day, whether it be personal, business, what would consume your time with that?
BY: Well there’s always the pull, and this isn’t necessarily the case just with attorneys but literally with every professional, there’s that pull between having a balance between. It takes time to grow a business, to operate a business, to practice law, to take care of clients,it takes time, but it also takes time to have a family, to focus on your spouse, to make sure that the family relationships don’t fall by the wayside. If I had some additional time I would probably want to focus that on family issues just because, more often than not, that’s the lowest common denominator. If there’s a conflict in time typically the family takes the brunt of that, and so if I had a few extra hours in the day I would focus that on strengthening and building relationships with my wife and children.
WCI: Can you give us an overview of your career so far?
BY: I started doing plaintiff work right out of law school,couldn’t stand it, drove me crazy, I hated every day of it. For two years I did plaintiff’s work which involved mostly work comp, some civil, and philosophically that didn’t sit well with me, and moving over to the defense side was an easy decision and one that I’ve never, not one moment, regretted.
WCI: In our tech age what three pieces of technology do you use on a daily basis that you couldn’t get through the day without? It could be your device, or some apps on your phone, or whatever it is.
BY: Obviously, and this isn’t going to be necessarily groundbreaking, but e-mail and smartphones are literally at the top of that list for me as it is with most attorneys. One other product that may not be on anyone else’s horizon is a piece of software that I found years ago. It’s still updated, still works well. It’s called Copernic. Copernic is essentially Google for your desktop and your network. When I’m handling hundreds of files and my associates are handling hundreds of files and I have adjusters, risk managers, or vice presidents of companies that call me about a claim I may or may not be handling the claim that they’re calling about. I can literally use Copernic. I keep it up on my desk running every day, it never shuts off because I can type in the name of the claimant and a couple of keywords and everything comes up right in front of me, right what I need. I could not manage a work comp defense practice without Copernic.
WCI: Of all the areas of law that you could have gotten into how did you find your way into being a work comp defense attorney?
BY: When I started out doing plaintiff’s work when I got out of law school, I had several offers, chose a firm that I thought was well established and it was, it did litigation and so naturally I did personal injury on the plaintiff’s side, work comp on the plaintiff’s side. I could not stand it, didn’t like it, didn’t fit with me philosophically, and I literally remember the day that I decided that I needed to go to the defense side; when I was representing a plaintiff with an ankle sprain and they told me because they were so important that their claim was worth a million dollars. That was the day I decided it’s time to go on the defense. That’s really the way I worked my way into it. Once I started doing it it was very natural for me to talk to companies, I agreed with the business owners philosophically, and it allowed me then to grow my work comp defense practice.
WCI: Where do you see the comp industry heading over the next few years?
BY: Nationwide we’re going to see a couple of trends here. Nationwide we’re going to see the ongoing trend of an aging workforce. When you have an aging workforce you’re going to have more injuries. Older people have more injuries, it just happens. As our workforce continues to get older and older because there are fewer children being born, and the younger workers, there’s a smaller base of employees at that level, you’re going to see increased injuries among this aging workforce. Now, that’s going to be partially offset by increased automation and the continued shift of the manufacturing jobs overseas. Those are two trends that are going to be a counterbalance; aging workforce causing more injuries, automation, and work shifting causing fewer injuries. How that plays out I don’t know, but those are the two competing forces.
Another trend that I see is the continued emphasis on post-accident drug testing. That’s particularly relevant right now with … we have Colorado and Washington that legalized marijuana. I suspect that Illinois is going to be the next state that is going to legalize the recreational use of marijuana and/or perhaps even Hawaii. When that happens there’s going to be a continued greater emphasis in the private sector to penalize workers who are impaired on the job because they’re potentially harmful to themselves or others, and that just drives up the cost of business. You’re going to see continued emphasis on post-accident drug testing.
WCI: What outlets do you use to stay on top of the comp industry?
BY: LinkedIn hands down, at least for nationwide news and trends. LinkedIn I find to absolutely be the best. I subscribe to several groups. I’m a top contributor to several groups, but I’ve found and identified individuals who I think have their finger on the pulse of what’s going on in the work comp industry and I follow them, follow what they read, I communicate with them by e-mail, and I’ve gotten to know them personally. LinkedIn, hands down, is the best for that. Regarding local news and trends to stay on top of the industry I rely on two things; Missouri Lawyers Weekly, again I’m in St. Louis so that’s a good part of my practice, and Missouri Lawyers Weekly is on top of comp news, comp cases, that works well. Secondly, for my Illinois practice I use Westlaw and I look at every decision that comes out of the Court of Appeals of Illinois regarding work comp issues, and Westlaw allows me to track that very easily. That’s on my weekly reading list. LinkedIn for nationwide news and trends and locally I use Missouri Lawyers Weekly and Westlaw.
WCI: Do you see more claims going through litigation coming from carriers or self-insured companies?Is there a difference between the two and is there a cause to that?
BY: Hands down, no question about it, self-insured companies are almost always more aggressive than insurance carriers. There’s a reason for that, because the self-insured employers or those with what we called the self-insured retention, SIR, they are literally spending their own money so they are far more involved, far more aggressive, far more detail oriented than, generally speaking, carriers are. Now, that doesn’t mean the carriers are not interested in resolving claims quickly and efficiently because we all know that they are, but with a carrier the equation is a bit different. For a carrier they have to ensure that the cost of a claim does not exceed the premiums, but with a self-insured they’re concerned about the very first dollar because every dollar they spend on comp is a dollar lost to the company.
For a carrier, they’re far more, generally speaking, far more interested in seeing if I can settle the claim for nuisance value, settle the claim for less than the anticipated value. Self-insured employers don’t want to pay one dollar on a claim many times and that, of course, then generates additional litigation. Completely different philosophy in terms of how claims are handled.
WCI: Because the self-insured companies are so concerned with that bottom dollar and spending money out of pocket right away, when things go to litigation would you say, typically, they end up spending more through litigation than if they just settled the claim out or do they tend to usually come out on top for that?
BY: If you’re just looking at it on a claim by claim basis, that’s the extent of the analysis, then I’m going to tell you the self-insured spend far more on litigation costs and far more at the end of the day than insurance carriers do, but where self-insureds recoup the money is in the reduction of overall claims. Let me give you an example. I represent several casinos in the area. Casinos are known to be companies that have licenses to print money and so they’re self-insured and they want me to litigate most of their claims because the concern is if the word gets out that they pay Joe Doe a hundred thousand dollars for some type of an injury and he goes and tells all of his buddies about it it’s going to encourage more litigation. The self-insured equation or the self-insured model is not built on saving money on a particular claim because they’re going to spend more money, no doubt about it.
The philosophy and the idea that they’ll save money in the long run due to a reduced number of claims because Joe Doe is going to tell his buddies how hard it was for him to get the money, that their attorney put him through the ringer, that it took a long time, it was a nightmare process, and I don’t recommend that you do it unless you have to do it. That reduces the overall number of claims. Insurance carriers are playing the short game in terms of if we settle the claim we reduce our defense costs. That’s true but the self-insureds are playing the long game banking on aggressive litigation lowering the overall number of claims.
WCI: What are the typical injuries that you see employees suffer that tend to end up in litigation? Is there a certain injury, whether it’s a sprain, a strain, something that always ends up in litigation?
BY: Minor back injuries are always the worst because there is an inherent subjectivity in the back injury. You can’t take an MRI to show a back sprain, strain. It’s not going to show it. Disc bulges that are either caused by work injury or could simply be degenerative disc disease, those are always problematic because we don’t know what caused it. The plaintiff’s doctors say it’s the work injury, the defense doctors say it’s pre-existing degenerative and that conflict can only be resolved by taking a case to a hearing. That tends to end up in litigation more because of the subjective nature of the injury. Also, older workers, when the last injury is not very severe but it, prevents that claimant from going back to a physically demanding job that’s always problematic because the injury itself may be relatively minor but the fact that they can’t go back to work now creates a situation where it’s a potential for permanent total disability and that makes a small claim into a huge claim very quickly. Those often lead to more litigation.
WCI: Is there something that an adjuster can do from their end of a claim that can help keep it from reaching the point of litigation?
BY: Absolutely! Study after study show that the best way for an adjuster to avoid a claim going to litigation is communication with the claimant. You’ve heard the old adage about real estate, its location, location, location, but in the claims business it’s communication, communication,communication. Plaintiff’s attorneys are always telling me that the claimants come in, nine times out of ten, because the claimant didn’t know what was going on, didn’t know what was supposed to happen, didn’t know that the employer or the carrier was going to be taking care of their injuries and so because of that uncertainty it drives them to call an attorney. The lack of communication is clearly the greatest instigator of litigation. Better communication between an adjuster and the claimant is the greatest single way to reduce litigation.
WCI: Once a claim is in litigation what can an adjuster do to make your job easier and help close the claim faster?
BY: I think that the greatest impediment to closing a claim is the fact that adjusters have 400 claims that they’re working on and when they’re working on a huge file count all they can do is put out fires. That’s all they can do. If you’re only putting out fires then you don’t have any time to go and make a fire break to prevent the fires from even moving. From a litigation perspective I think what can the adjuster do? It’s really what can the claims managers do? The claims manager, their single greatest effective weapon to closing a claim more quickly is to reduce the file count of an adjuster because by doing that it will allow the adjuster to respond to a request from the defense council. That’s what drags claims on the longest for me. If I have to send a letter to my adjuster saying, “I want to do A, B, C, D,or E” and then all I hear are crickets, not because the adjuster doesn’t care but because the adjuster is too busy putting out fires to get to my recommendations of proactive recommendations to defend the claim. Can’t get to that because all we’re doing is putting out fires.
If carriers or TPA’s would reduce the file count for their adjusters it would allow them to be more responsive to the defense council which would result in a shortened litigation time, it would result in lower defense costs. Claims, unlike wine, do not get better with age. By reducing the file count you would reduce the cost of litigation across the board.
WCI: What are some things that adjusters do the hinder a claim once it is in litigation?
BY: The greatest factor here is either the refusal or the inability to make a decision. There are several things that go into that equation. In many instances a carrier, TPA, self-insured, if the adjuster doesn’t have the authority to do anything and they’re afraid to make a decision because they’re afraid of, “Oh, this may come back bad on me. I better not make this decision. Then they become afraid to make a decision and when they can’t make a decision the claim doesn’t go forward because adjusters area lot like CEO’s. The main and the primary function of that job is to make decisions. When an adjuster is inhibited from making a decision, whether it’s because of too high of a file count, too low of settlement authority, too much micromanagement from a claims manager or it’s just an inability of authority to make a decision that hinders the movement of a claim. Anything that increase the adjuster’s ability to make a decision, whether that’s reduced file count, increased settlement authority, or reduced micro management, if it allows that adjuster to make a decision, one of thousands of decisions that have to be made on every claim, that would speedup the closure process across the board.
WCI: When you receive a new claim from a client what’s the first step you take to the client?
BY: My first job is to accurately assess, initially, whether the claim is or is not compensable. That’s what my client wants to know from me. If they’ve got a case where a claimant loses a finger in a manufacturing accident they don’t necessarily need me to make that call because it’s probably pretty obvious. If it’s less obvious the first thing that they want from me is yes or no, do I think the claim is compensable. If I don’t think I can make that decision then that leads to step number two which is I have to identify areas of investigation of where I need to look to make a decision on whether this is or is not compensable. Then my third job on a new claim, and I do all this in the initial letter, the third job is to provide the carrier or the self-insured employer with accurate exposure analysis.
This is where most defense attorneys falter, is this point number three. They’re very good at points one and two, but on point three they’re very bad and this is why. Defense attorneys, like anybody, want the people we work with to like us. There is an inherent pressure on a defense attorney to say every claim is not compensable and at most it’s worth 500 bucks. That’s what the client wants to hear, but what the client needs to hear is the truth, not fiction that’s being spoken in order to make the client happy because if I tell the client the claim’s worth 500 bucks and at the end of the day the claim’s worth $100,000 they’re going to wonder, “Brad, you missed it by $99,500. You’re off. ” That’s even more off than the weather man. My job is to, number one, assess whether it’s compensable, number two, identify areas of investigation, and number three, provide accurate exposure analysis so that claims can be properly reserved on the front end instead of having to be added to those reserves at the time the claim is closed.
WCI: Do you see a large number, or what would be the percentage of claims you see come in that are fraudulent, where people are just trying to get one over on the companies?
BY: I identify two different types of fraud in work comp. One is the fraudulent nature of the injury. I personally think that’s rather rare. I probably see that in, I would estimate, two to three, no higher than five percent of the claims. That type of fraud where the act of the injury is simply fabricated doesn’t happen as often as what I think claims adjusters, managers, risk managers, safety directors think that it happens. Where I see the largest amount of fraud, and I do believe this is still fraud, is symptom magnification. The claimant has a legitimate injury; we know from non-work related medical studies that sprain strains are repaired in the body within six to eight weeks. We know that, but in the comp world they never get better. I can have a sprain strain open for five years and after five years the claimant still tells me it hurts every day and I can’t do this, and I can’t do that. I know that’s symptom magnification.
A sprain strain gets better in six to eight weeks, sometimes twelve, but never longer than twelve. Yet, here we see it years later. The initial kind of fraud, the fraud and the actual accident itself I think is relatively rare, three to five percent of claims at most. If you talk about symptom magnification I probably see that in seventy-five percent of the cases. That’s reflected in the fact that they tell their doctors, “It hurts when I do this, it hurts when I do that,it hurts when I do everything. ” Then the other doctor will tell me they can’t be having these complaints because the MRI is negative, the CT scan is negative, the post CT scan is negative, the nerve conduction study is negative, everything is negative. They can’t be having the kind of pain that they’re having or complaining of because if they did it would show up on the diagnostic scans. That kind of symptom magnification which I still think is fraud, is prevalent in most cases.
WCI: What do you think separates you as a work comp lawyer? Why do clients want to turn to you as opposed to someone else?
BY: All I can do is I can tell you what I’ve had clients tell me. That is, number one, responsive communication. Both myself and my associates, we have smartphones, we get an e-mail…Twenty years ago the business practice was make sure you respond in three days. I want every e-mail to be responded to within ten to fifteen minutes. Responsive communication, if the adjuster needs information right now they don’t want it tomorrow, they don’t want it this afternoon,they want it now that’s why they’re e-mailing you or that’s why they’re texting me or calling me. Responsive communication is number one. I think number two is proactive defense. That means that I make sure that myself and my associate attorneys, that we keep our file count low enough so that we can actually sit down and think about what should be done on a file instead of doing what the adjusters have to do which is put out fires. I know other defense firms that have their comp attorneys handling 250 files at a time. That’s impossible to do if you’re going to be proactive. You’ve got to keep the file count low or else there’s just not going to be any pro-activity to the claim. Number one, responsive communication, and number two, proactive defense.
J. Bradley Young has over 25 years of experience in all aspects of workers compensation defense. Mr. Young has spoken before corporate organizations and at in-house client seminars for many years, and frequently lectures for nationally-known seminar companies on topics relating to workers’ compensation claims, employer liability, and third party administration of claims.
He is a Top Contributor for multiple workers’ compensation LinkedIn Groups, and is a regular columnist for both WorkersCompensation.com and InsuranceThoughtLeadership.com.
In addition to appearances on local television stations, Mr. Young is also an on-air legal analyst for local radio station KMOX, and writes monthly articles for journals and magazines on a wide variety of legal topics.