To the Editor: Our paper, “The Relationship Between Attorney Involvement, Claim Duration and Workers' Compensation Costs,” was not designed to be “an empirical analysis of behavior in the legal system,” as Drs. Welch and Boden stated in their letter, but rather a study of associations between claim costs, attorney involvement and variables linked to this relationship. Indeed, we found that there was an association between attorney involvement and claim costs particularly claims handling costs. However, these cost differences disappeared (except claim handling costs) when controlling for claim duration (days between injury and claim closure). This and other analyses (probability of claim duration exceeding 360 days [Fig. 1] and days to claim closure by beginning of attorney involvement [Table 4]) led us to the conclusion that the most likely explanation for the association between attorney involvement and costs was related to the duration a claim was open. That is, attorney involvement is associated with longer claim duration which, in turn, is associated with increased costs.
Drs Welch and Boden acknowledge this indicating that “durations are much longer for claims with attorney involvement because they cannot be closed until the parties settle all disputes or a workers' compensation judge makes a decision.” This undoubtedly is one plausible explanation for our findings, as anything that induces friction in the claim settlement process should increase the amount of time a claim is open. The readers speculate on other reasons for outcomes, the merit of which is a matter of opinion. However, as indicated, we did not speculate on the causes of attorney involvement and increased claims duration.
Drs. Welch and Boden suggest that we concluded from our study that attorneys somehow delay return to work. Nowhere in our paper did we suggest this. In fact, we were very sensitive to this issue because Table 1 indicated that proportionately more claimants with greater amounts of lost time were represented by attorneys than claimants with lower amounts of lost time which could confound the study results. That is the reason we controlled for lost time in all of our analyses. In our discussion section, however, we did indicate that a number of investigators found that there was an association between attorney involvement and delayed return to work.1–6 We did not support or refute those observations with our study.
In reassessing the paper it appears that the most important take away message is that the litigation process increases claim duration which increase costs. It seems that the most significant effect of this is on claims of low severity (claims with no, or few lost time days). For high severity claims (>120 days of lost time) there was no significant difference in claim duration between claimants represented or not represented by an attorney.
Edward J. Bernacki, MD, MPH
Xuguang (Grant) Tao, MD, PhD
Division of Occupational and Environmental Medicine
Department of Medicine
Johns Hopkins University School of Medicine
References
1. Katz JN, Amick BC III, Keller R, et al. Determinants of work absence following surgery for carpal tunnel syndrome.
Am J Ind Med. 2005;47:120–130.
2. Katz JN, Keller RB, Fossel AH, et al. Predictors of return to work following carpal tunnel release.
Am J Ind Med. 1997;31:85–91.
3. Katz JN, Lew RA, Bessette L, et al. Prevalence and predictors of long-term work disability due to carpal tunnel syndrome.
Am J Ind Med. 1998;33:543–550.
4. Cheadle A, Franlin G, Wolfhagen C, et al. Factors influencing the duration of work-related disability: a population-based study of Washington State workers' compensation.
Am J Public Health. 1994;84:190–196.
5. Olney JR, Quenzer DE, Makowsky M. Contested claims in carpal tunnel surgery: outcome study of workers' compensation factors.
Iowa Orthop J. 1999;19:111–121.
6. Osti OL, Gun RT, Abraham G, Pratt NL, Eckerwall G, Nakamura H. Potential risk factors for prolonged recovery following whiplash injury.
Eur Spine J. 2005;14:90–94.
