Episode 18 - Robert Wisniewski - Workers' Comp 2.0

Attorney Robert Wisniewski discusses improving workers' compensation to work better for everyone.

  • 00:10:11 - 05:10:11

    Jerrod Bailey 00:03

    So Bob, I think I certainly had this this misconception I think other people do, too. How adversarial is the workers comp space?


    Bob Wisniewski 00:16

    Because it is a small group of lawyers, I would say, tops between 102 100 of 30,000. Lawyers in the state do workers comp. Everybody knows everybody. So you just can't be nasty to the other guy. Because an hour later, the whole world will know you're a jerk. Right? Okay. Right. And I think that goes through to medical witnesses. They all know the good ones. In fact, one of my colleagues on the on the defense side said, God, that doctor now is starting to appear digitally and visually, he beats me when he talks alone on the telephone. Now that I see him speaking with an anatomical model, he's going to kill me every time now, boy. And so I think the technology on both sides would be useful to do the teaching, because I think judges may need to see some of that.


    So it's not as adversarial as saying Superior Court, or TV court, and everybody thinks it's on the internet. It's not Judge Judy, the obnoxious, people get weeded out pretty fast they, they kind of lose their temper when they're testifying. You know, the old adage is you can get more with honey than with vinegar. Sure. And they give a little to be a doctor that when he testified his past, he would say, Yeah, you're right about that. Yeah, that's true. If you ask them the right question, he gave you the right answer. Some doctors, you can say, well it's 10 minutes here, too. And they'll go, it's 11 minutes after, because we've been talking for a minute, they won't give you. And those ones may not be believable, they're kind of obnoxious. And there are a few in the business, on perhaps both sides to get sharp. And I don't think the judges like the sharpness, one of the things we can do about our system is maybe increase the number of judges in Arizona and maybe pay them better. So it becomes you know, it's tough enough to do the business of hearing about people's injuries every day. And not be compensated adequately for their time, I think that's something we're trying to make some inroads in the Industrial Commission trying to improve that.


    Otherwise, we're going to get judges who aren't coming from the system that maybe you're coming out of the system have to learn their way through the system, because it becomes a job, or they have a job they have to learn about. And that's where some of the education comes through. And the doctors that the doctors could teach when they lecture. It's really what it is. They're an advocate, rather than just reading their report. The reports go in evidence, and then you can hide blade them, and you can kind of go through them. Those are the those are the successful doctors. And we have to have a credible client that makes the big difference.


    So on the other side to the insurance has to have credible witnesses, who will say, Well, I didn't happen. You there that they will know that I heard it didn't happen those kinds of things. They just want to avoid the claim when we can't pay the claim because he hurt his knee once before in Iowa. We don't do that in Arizona. So the system has at the fringes, people that want to be adversarial. And I don't think they do too well.


    Jerrod Bailey 03:25

    Okay, well, that's good.


    Bob Wisniewski 03:31

    So the system itself allows for, for some, some friendly problems, it's rather collegial group of folks. And we all kind of know, those that aren't collegial. Everybody knows, oh, we didn't get a case on. But the particular on one side or particular on the other side, someone's going to grow on it. Oh, he's on that case, or she's on that case. But that's a word that's less than 10%.


    Jerrod Bailey 03:51

    That's interesting. Well I think when we talk about the adversariness of any system that can sort of get keep people from wanting to participate in that system that precedes something difficult. One of the questions I had, I think it'd be interesting is like, what obstacles do people face before they go to you, for example, if referring to representation, like why might somebody be hesitant,


    Bob Wisniewski 04:16

    right? Everybody in the workers compensation system, they're hurt. They're scared, they're broke. They don't do well with paper. We're all dealing with Luca, Luca. And I mean, I had one fella tell me today that way. He's up in northern Arizona, and he said why yesterday, the President of the insurance company came to my workplace and want to know how I'm doing with my you know, such and such injury, and I'm thinking, that's impossible. That didn't happen. But they don't know who they're talking to.


    And everybody works off their telephone. I say to someone, well, let me tell you something, and they're looking at the phone, I go put your phone down. I'll go what insurance companies involved, I don't know. So we have an education The process of people who think, gee, they watch the internet, they talk to their friends, they think they know all about the system. The biggest obstacle I find is that cases are not filed with the Industrial Commission. In the old days, you got her to work, you told him, You have to tell your boss and the boss would call the insurance company insurance company to say, Did you file your claim, and you have to file it at the Arizona Industrial Commission. And if you don't file it, we're not going to deal with you.


    Now, sometimes they actually get benefits, the insurance company starts to handle it, and there's no claim filed. So and if one if technically, if one year from that date, they don't file it, there's no claim. So we educate people say, look, filed your claim, go on azica.gov. Go on workers port of entry, file your claim, here's what's going to happen next, then come and talk to us.


    Jerrod Bailey 05:50

    Is that a difficult process? Let's demystify that process, I'm going to login. I know when I log into the Arizona Department of Transportation to renew my registration, it's infinitely frustrating. No, no,


    Bob Wisniewski 06:01

    this is a simple process, even I can do it electronically. And they can sign the form online, send it in, they get a receipt back. And they get a letter in a week or two that says we've turned this over to your insurance company, and they're going to handle it within 21 days. Wait, I must say that at least twice a day to people, they're just no one has told them. They're there. They're just not good with paper. And I'll say did you get this? No, I don't? Well, it's at home when I go well they They're folks that are not used to keeping a folder of stuff. Now, there's the exception, the ones that can then have it all organized. But I think why they don't go to the lawyers there.


    It's a mystical system, they don't know how to work, they're afraid the lawyer is going to charge them a fortune to walk in the door. We give a free consultation, but we say to people, here's what we need from you, we may need to get into your industrial permission to file through a portal which we can now. So we try to encourage people to kind of do it yourself that you know, you don't need a lawyer to clean the lawyer or the law firms will say, come on down sign papers right away. And we don't do that. We simply say we're, we want good cases and good people. We don't want everybody who has a chip on their shoulder and wants to get even with the boss because he didn't take him to the hospital that afternoon. So we tried to sort that out.


    And it's difficult for the worker because they expect their employer to take care of. And really sometimes the employer doesn't know the next step in the comp case, while we called our insurance company, and that's the end of it. So they don't know, go file your claim, collect your medical records, go to a doctor, so that we see a lot of that people are not educated. And there is a lot of information on our on our Industrial Commission of Arizona's website. But people don't go there. It's amazing how they they're not trained, or the boss didn't say go look it up on the website or go to our website or other lawyers websites.


    Jerrod Bailey 07:58

    You know, I've worked at probably 10 lending companies in my career. I don't know that it's ever come up. I wouldn't know. I don't know anyone that's known it right? It's just it's not something that I think a lot of companies are diverse writers. Yeah,


    Bob Wisniewski 08:10

    absolutely correct. And the HR people, sometimes they're dealing with employment law, which is separate than heard of the job law. And they're given people will go fight for your long term disability and short term disability, which is different than workers comp. So they went while I went to my office, and they sent me down the wrong path. So it can be confusing. But most lawyers, try to educate my colleagues who try to educate people and say, Look, you don't need a lawyer, Do this, do this, do this, if you need a lawyer when you need when you get. But it can be a difficult system. Again, we're dealing with maybe a language barrier, dealing with low education. And people that don't deal with paper. They're working outside all day with rules. They just don't deal with paper. And that's the biggest problem.


    Jerrod Bailey 08:56

    Yeah, I've I have to imagine after all these years, these are people's lives, people are getting legitimately hurt. And then like that year passes. I mean, you can just have seen some pretty hard situations in here.


    Bob Wisniewski 09:10

    And we've, we've seen professional athletes, we represent some professional athletes through their professional Union Association. So their associate trade association, we will tell them file the claim within one year, a couple years later because they have a financial motivation not to make their body less than it was when they got hurt because they're losing money if they don't play, but I can tell you that I've had heartbreaking situations where people just I didn't do anything because it COVID I go well, let's spend like the last two and a half years where have you been? You know, you weren't in a hospital bed. You didn't have COVID Someone else had it, but people are not.


    In my own experience in the last two years people are become lazier. They expect the government To do something for them, send them a check. And gee, I have to look up these medical records. And we're honest, we say to them, Look, get these three form forms of records from us the Industrial Commission file, the file from the carrier, which will be the hardest to get, and the records from your doctor and email them to us, we'll take a look at them one at a time, we'll do them. Because they don't want to go to extra step. They're complacent, yeah, Gee, I don't want to rock the boat, maybe I don't want to lose my job. That's the that happens a lot with the undocumented Hispanic speaker, there, they've got a good job. And if they push it, they may not be able to get back into the into the labor system again. So we have problems with people just not being participatory.


    Jerrod Bailey 10:45

    Interesting. Well, you already gave me some ideas of how the system can be improved. Is there anything else on that list you like, right? Oh, military, here's my, here's my punch list of things. I wish I had a magic wand,


    Bob Wisniewski 11:02

    I just think we if we could get our we could have the system compressed a little bit in terms of the time. Again, these are people's lives in there. And not only the injured worker, the entire family is affected. Yeah, the children, the spouse, if we could just get the system moving a little faster, we'd all be better off. I mean, even from the claims and but people are, we're all remote, we're not going to the industrial commissioned to give you file, we don't know I don't want to do it can be done. It's an opportunity, it can be done from your living room to be done digitally.


    So people are, I don't know, whether it's, we have to change the ethics of the country to say move along, let's proceed a little bit better. We take care of yourself. Everybody wants somebody else to take care of them. And I understand in the system, we get hurt, the system is supposed to take care of you. But I see a little bit more need for participation, maybe the employer should educate the people, they're going to hurt, this is what to do. If they just told them azica.gov, they could file a claim, oh, my employer didn't tell me that my employer didn't do this. And they don't know, maybe if the employer would take him to the hospital a couple of times, that might be nice, or send him a get well card, people get really, really upset that they're not being listened to.


    That's the biggest, no one listens to me, I go to my doctor, he's zooming in zooming out. And I didn't tell him about my other shoulder, mostly, my elbow was broken, but that shoulder was bothering me. So then that doesn't become part of the claim, oh, gee, it wasn't documented right away. So I think if we could do a little common sense system would move a little better.


    Jerrod Bailey 12:48

    I don't know if there's an analog to this in our company history. But when I look at like, just to draw on the medical industry as an example I go to see a doctor I, I feel that I'm hurt within that receiving of care. So I file a claim practice claim made against the hospital and the doctor, whoever, similar mechanics they happen there, right, so harm event happens. And then, hey, I think I was hurt. And then, like, a long time goes by where nobody's being listened to.


    So that's where a lot of these claims come from, a lot of the lawsuits come from hate, I complained my mom died, or I was legitimately hurt in the surgery, and now we can't work anymore. But then the lot of the industry is built around all just waited out, right? A lot of stones down the road. And then you've got your while that's happening with the patient and family, you've got the doctor that's legitimately like, this is what this was heart like, this was not the outcome and use expected. Maybe I'm in a space, maybe I made a mistake, maybe I didn't. So now he or she is going through their own trial, like personal turmoil for months on end, right as this protracted process just takes forever.


    Well, what happened in that industry or what's been happening is you have the introduction of these communication resolution programs or early resolution programs where harm event happens and within a couple of weeks, the doctor the patient, other people are getting into conversations and talking rather than months of practice or whatever. And in that's really been fascinating to watch in you're seeing it picking up steam in places like California where legislations enabled stuff like that.


    But I'm curious if there's any trend in the work comp industry for to your point, get these things done a little bit quicker. You know, sometimes it's especially in the triage system. That's right. Yeah, I don't know that we can handle this case faster. But these other eight probably can. Is there anything that's you've seen?


    Bob Wisniewski 14:57

    I don't see it yet. One of the things I You see that is counterproductive is the major hospitals are insulating their doctors, with lawyers, so my client gets hurt and goes to hospital chain a, and we file a comp claim because he got treatment in that hospital, we want that doctor to participate to say, well, whatever diagnosis you gave him is related to the industrial, they lawyer up. Now they get their own lawyers, I've had one where we had the hearing set for different times. And the doctor before was cooperative with me until the hospital chain brought their lawyer and


    Jerrod Bailey 15:34

    what's behind that?


    Bob Wisniewski 15:36

    I don't know it's just this perceived risk, perceived


    Jerrod Bailey 15:40

    reputation in the market or something like so in something about this is going to come bite us. Right?


    Bob Wisniewski 15:45

    That's it's just never going to come out the way we think it is. Because you know, there's lawyers involved, lawyers and doctors bad combination. Yeah. And so we've had hearings where the doctor and I were talking before, then the lawyers involved in it, usually a young lawyer from a young law firm that they've put in charge of this. And they'll say, Look, you don't know how the system works, all I want to do is have them, look at the other medical records and tell them that tell me why they're wrong. We can't do that we'll only testify about what we saw on our records, and they're concerned about some other arcane case that came out of the civil end of the world really doesn't apply.


    And so we're, we're telling people, Look, we're not going to take cases in which those doctors or those hospitals are involved in okay, because let my personal firm saying we're not going to take that because it's an impediment. We don't we need a doctor to be able to prosecute the claim, make the claim. And if they're going to Stonewall, then let them get their bills paid somewhere else. I don't care.


    So that's, that is it's not part of the industrials, Commission's issue. This is something coming out of the major hospital chains. interested? Yeah, that's an that's been in last year or two. And in my case, the industrial says, look, we've tried four times to get your doctor to testify from this chain, and we've had to deal with the lawyer. And so we're just going to proceed without your doctor's involvement. And of course, you lose. That's really unfortunate. So you know, that that's not answering the positive question.


    That's my last negative questions. Yeah, this issue is not helping us resolve claims. And as you say, in communication, all we're asking the doctor to do is to offer an opinion, but they're concerned that that opinion, might come back to bite them. And because of other case law that's out there where the doctor was given an opinion, and then they someone got prosecuted for child abuse, or what have you, as a result of that opinion.


    I have a client who got her to work, and he's got some truck insurance and they pay his the pays premium. If we can get a letter from the employer that says this was the last day he worked. Okay. I said to the client, well, just don't do that. But I can write you a letter and give me your policy. So I can No, no, you got to get the letter from the employer. So the employers lawyer says you have to write to me, so I write him a letter. And so basically, here's what we're doing. Open, he writes back and says, You have to give me to book a lawyer, you have to provide me the statutory or legal authority as to why I have to answer that question. And I said, Well, I don't have any legal authority to tell you what morally you should do is just give us all we need to know is the last day of work. And you know what, I know that. So I broke the letter myself, because I have the medical records.


    But it was like, What are we doing here? You know, just he just wants to know what's wrong. They're afraid of being sued, and they were big company and blah, blah, blah. You know, just write a letter, this list they work, it'll be you know, it's probably on his pay stub. But they you know, then so I said, look, let's assume that that company is totally out of business, your insurance company for your trucks, insurance, that pays your premium must have another you know, step two, let's do step two. So we wrote the letter ourselves, taxes, medical record, we'll see what happens. But we just make it so many steps. That's just unnecessary. Yeah. And that's, it's just crazy.


    Jerrod Bailey 19:09

    Yeah. And it's the patient. And you know, the worker and, and that person's relationship with his boss and his job that all suffer while all of this is right, and he


    Bob Wisniewski 19:22

    likes his doctor. But if we can't get the doctor to participate, because of the legal lawyer has to be involved, then he's going to be mad at the doctor and not get the appropriate medical care. We need to simplify the systems all around and just say look what nobody's suing. Anybody went in Chris. I know in the medical side, they're worried it's a malpractice claim out of this we go No, we just wanted records for workers compensation. We don't even do medical now. So it this I think a little bit more talk. Yeah, I always say that telephone is the best form of discovery in these in all these cases, we don't need to and send a letter and a piece of paper just call me up and say write it read a letter when this guy we did we tried to call them if they wanted a letter? Oh, yeah, got to write a letter. Why? Why you want the information as to why he left work. Pick up the phone. No one wants to do that anymore. I mean, you look at so many different organizations, and you can't find a phone number on their website, right? Think about it. It's all electronic, or chat


    Jerrod Bailey 20:20

    bot, we may or may not have just added a phone number to our website. But you know, that's the world we're living in,


    Bob Wisniewski 20:27

    right? Yeah, it is.


    Jerrod Bailey 20:28

    It's true. Kids these days, and you get everything on your phone in order, order dinner and do all your shopping. Some fans, so why can't we get our workout stuff done over our phones today, it's


    Bob Wisniewski 20:40

    getting a little bit better. It's getting better. The industry has made lots of strides. In overnight in having a portal, we file everything electronically, you can go on and look at your own portal, you can look at the hearings that are set for today and for the week. And you can find your own claims. Okay. They have lots of educational material on the Industrial Commission website. But trying to get the worker who isn't tuned into doing this. Yeah, that's the problem. It's interesting. It's almost like we should teach people in high school how to deal with you know, how you the old days, we taught them how to balance a checkbook. Yeah. Something practical checkbooks, but it's something practical and how to maneuver through the system.


    Jerrod Bailey 21:23

    That's great. Well, we think there's an opportunity there for technology to really see that this is approachable and make easy.


    Bob Wisniewski 21:31

    And many of the insurance companies have that they can go on the portal or whatever they call it. And they can see their own claim and our own processing of the claim. Sometimes that makes it easier for them. Sometimes it makes it more difficult because they might expect at the check was put in the mail on Friday. And how come it's not here on Monday? Well, the post office delivery. Yeah. And it's Saturday and Sunday, and it's coming from Tennessee, right? And people say well, oh, no, Amazon delivers it the same day. Maybe we should have Amazon run the system. I think that thought of that at times genius.


    Jerrod Bailey 22:01

    Yeah. Well, wow, this was really interesting. I appreciate you. You're coming down here to talk to me. We're going to add your ringtone to the show notes. Is there any other way that people should look for you to get a hold of you?


    Bob Wisniewski 22:16

    They can just simply look us up at AC hurt on the job.com is our website. We're pretty receptive. We just call us 1234 3700. Extension five is my paralegal and she'll route the call to me or my colleague, Mr. bajada. And we'll talk to people we talked to 1000s of people each month.


    Jerrod Bailey 22:36

    Great, great. And we'll do what we can to line up some great doctors to be of service to the industry. But in the meantime, yeah. Thanks for


    Bob Wisniewski 22:44

    coming down was really enjoyable. It's really fun to do this.


    Jerrod Bailey 22:47

    Oh, fantastic. All right, well, great. In that case, let me just close this out here. Thank you, everybody for listening to reimagining healthcare and dialogue, and risk and patient safety. Subscribe and Share. If you found it valuable. Of course, if you'd like to participate as a guest, email us at speakers at Medplace.com and make sure that you follow Bob and connect with him on LinkedIn.


    Bob Wisniewski 23:11

    Appreciate it. Thank you for having me here. And I wish you well


    Jerrod Bailey 23:14

    thank you. Appreciate it.

Part 2 of Medplace's discussion with Robert Wisniewski reviews how doctors can build a name for themselves doing independent medical exams and ways to improve the workers' compensation process. Robert touches upon the system's areas of opportunities in several real-world examples. Lastly, Robert highlights signs of the industry changing for the better.


Guest - Robert Wisniewski

Arizona Workers’ Compensation Attorney

Bob is an active member of the legal community, actively writing and lecturing on all aspects of workers’ compensation law. He is an active member of the State Bar of Arizona, Association of Trial Lawyers of America, Workers’ Injury Law & Advocacy Group (WILG), AZ Association of Lawyers for Injured Workers (AALIW), Association of Trial Lawyers of America and AZ Association for Justice. 

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