With the important 2016 title, The Myth of the Litigious Society: Why We Don’t Sue (Chicago 2016), Professor David Engel published a book on the widespread phenomenon of non-claiming in the sphere of personal injury. (I reviewed that book in the December 2016 edition (#128) of my Pennsylvania quarterly newsletter.) As it turns out, empirical studies show that the common wisdom is incorrect: most Americans do not sue at the drop of a hat. Indeed, the contrary is true: many individuals, even with serious injuries, do not pursue the responsible tortfeasor.
The thesis of the Engel book was foreshadowed, for purposes of our field, in 2011. In that year, the journalist Peter Rousmaniere published his essay, When Injured Workers Don’t Claim, in the IAIABC Journal. See Peter Rousmaniere, When Injured Workers Don’t Claim, 47 IAIABC Journal 65 (2011), available at https://iecdp.files.wordpress.com/2011/08/journal_fall2010_complete_publication11.pdf.
Rousmaniere’s article is a review, evaluation, and analysis of the literature on the issue. He finds that literature to be compelling and, while he states that the precise level of non-claiming is impossible to discern, he believes that this pattern of behavior is common and calls into question the integrity and perhaps even the reason for being of the system. The lack of claiming when it comes to occupational diseases is particularly troublesome. The author publicized at least two studies that have since been the topic of discussion within the community. One study showed that many workers who suffer amputations have their medical expenses sponsored by group health insurance, and another showed that many roofers who sustain nail-gun injuries, never receive care. Little ambiguity as to causation usually surrounds these types of injuries, but many, nonetheless, do not seem ever to be the subject of a comp claim.
The issue of non-claiming has always been present in the Pennsylvania workers’ compensation system. As a lawyer, I encountered many instances of volunteer firefighters failing to prosecute even obvious trauma cases. They failed to do so largely because of ignorance of the law, the availability of collateral insurance, and a desire to not rock the boat. In addition, many such workers would obsequiously roll over as soon as the insurance denial was issued, regardless of whether the denial was legally cognizable.
As a defense lawyer I would also, in general, strategize on occasion with adjusters in ambiguous factual and legal situations to deny the claim and place in the injured worker’s court the decision on whether to seek legal counsel and pursue the claim. Presumably, this practice, which is in fact universal, eliminates many claims from ever being pressed beyond the reporting stage.
As a judge, meanwhile, I see many cases where the claimant was going to walk away from an obvious injury cases (like from trauma, or poisoning) and “eat” the time lost, but then is leveraged to pursue claim petition litigation because of medical bills. Many a compensation claim would never have been pressed were it not for the remorseless demands of providers (the E.R., the MRI vendor, the PT folk), that their often-considerable bills be satisfied.
Finally, both as a lawyer and a judge I have always been impressed that some workers walk away from injuries sustained in fault situations, like horseplay, unable to conceive that they are entitled to insurance benefits when they have culpability in the injury. Indeed, on occasion I see “fighting,” “horseplay,” “employee did not follow procedure” as the grounds – all non-cognizable – for a denial. I am seeing these denials, of course, because the worker then lawyered up and pursued the issue. Yet, I sense that for every tenacious litigant there is another poor devil of a workman who acquiesced in the denial and decided not to press his claim further.
Rousmaniere, for his part, identifies a number of major reasons that he believes injured workers do not claim. He notes that in academic literature these factors are referred to as “filters.” In any event, they include:
(1) The sophisticated worker’s belief that collateral benefits, like group health, sick leave, and long term disability, will be superior to workers’ compensation.
(2) Peer influence at the worksite not to claim, due to pressure to meet a management-imposed incentive program, or due to good old-fashioned “bravado.”
(3) Fear of retaliation by management.
(4) Worry about being driven into “an exhausting and potentially contentious process, as workers’ compensation is often and with some justification portrayed.”
(5) Ignorance surrounding the availability of benefits.
(6) Late manifestation of injury or disease, which makes it impractical to press a claim.
Rousmaniere recommends that state agencies be proactive in studying the issue of non-claiming, and he voices frustration that no interest has been shown by such state officials. That frustration may have to endure: the business interests that have a voice in the overall regulatory process hardly desire workers’ compensation agencies to be promoting claims. In any event, Rousmaniere’s observations and advocacy are essential to those who desire the system to work.