The workers’ compensation claimants’ bar should take a page from the personal injury plaintiffs’ bar and use life care plans more regularly. Failing to use a life care plan in an appropriate case does a disservice to an injured worker because these plans are effective tools for persuading an insurance company, mediator, or Workers’ Compensation Judge about the true lifetime cost of treating the worker’s injuries.
Life care plans are common in the personal injury world, where personal injury lawyers often work with life care planning experts to prepare life care plans for their clients. Once a life care plan expert reviews the injured party’s medical records and interviews people knowledgeable about the worker’s condition and prognosis, they prepare a detailed report listing all future projected medical costs and treatments that can determine the overall value of a case.
Although these plans can be expensive, often costing between $5,000 and $20,000 per plan, they are dwarfed by the potential cost of lifetime treatment for an injured person. Without a credible and persuasive life care plan that can steer settlement negotiations or a damages determination in their favor, an injured person may not be able to pay their medical expenses.
Life care plans are a rarity in workers’ compensation cases, but they shouldn’t be. Workers’ compensation is a high-volume practice, so many attorneys focus on resolving their clients’ cases favorably without giving themselves the opportunity to see whether an investment in a life care plan could lead to an even more favorable result for a client.
The consequence of this is that in both settlement negotiations and litigation, when an injured worker does not put forth a life care plan, insurance carriers can grossly underestimate the projected life care costs of the worker, thus anchoring the amount of damages to an artificially low number.
Traits of a credible, persuasive life care plan
The most credible, persuasive life care plans contain a comprehensive analysis of the patient’s current and likely future needs. To create such a plan, a life care plan expert would seek input from:
- The claimant, their attorney, their physicians and therapists, and their medical records;
- Trusted friends, family members, and co-workers;
- Medical equipment supply vendors; and
- Expert witnesses.
A credible and persuasive plan will educate the reader about the medical conditions the injured worker is dealing with, the suggested treatment for those conditions, why that treatment is required, and, of course, the cost of the treatment. A plan should incorporate rehabilitation, prevention, and/or reduction of complications. This may include recommendations for additional evaluations or treatment that could contribute to the injured party’s overall physical and mental wellness.
Where needed, a plan should provide alternatives for care that take into consideration the developmentally appropriate and least restrictive options for the injured worker.
Putting this all together, for an injured worker who suffered a serious workplace injury, their life care plan should include details about, and the costs of:
- Medication and medical devices currently required, including specialized medical equipment;
- Future surgical procedures, medications, medical supplies, and care;
- Diagnostic testing and lab work;
- Physical therapy;
- Occupational/vocational therapy;
- Lost earning capacity;
- Home healthcare expenses;
- Assisted living expenses;
- Transportation needs; and
- Renovations to a home or car for transportation or care.
By summarizing the universe of future medical treatment and its costs, life care plans can both substantiate a worker’s claims of damages and leave no question in the mind of an adversary or fact finder about the amount of compensation suitable to award an injured worker for future medical expenses and related damages.
A key element of a persuasive life care plan is a realistic life expectancy estimate. Using a mortality table from the Social Security Administration, the life care plan should make a reasonable assumption about the injured worker’s life expectancy. The amount of care required, and the cost of that care, will be dictated in part by how long the worker is expected to live. An unrealistic life expectancy estimate, from which the estimated total cost of medical care flows, can invite a spirited challenge from an adversary and possibly undermine the credibility of other aspects of the plan.
On a related note, when an injured worker’s life expectancy is such that inflation will play a factor in the future costs of care, life care plans—and the experts assisting in their creation—should base their estimates of the future costs of care on both reasonable inflation rates and historic increases of the cost of that care. An especially aggressive estimate of future costs will be met with objections from an insurer. On the other hand, a life care plan that fails to account fully for both inflation and the increased costs of care could cause the injured worker to be unable to fund their care as they get closer to the end of their life.
Life care plans help injured workers (and their attorneys) control their own legal destiny
As all trial attorneys know, if you don’t tell your client’s side of the story persuasively, your adversary will fill that vacuum—and it won’t be pretty. The same thing goes for life care plans.
By not investing in a life care plan for a client, a workers’ compensation attorney risks allowing an employer or its insurer to put forth an incomplete, low-ball, or otherwise lacking life care plan of its own. That plan will almost certainly paint a more upbeat and rosy picture of an injured worker’s future medical needs and the cost to care for those needs than the client’s own life care plan would.
When employers or insurers control the life care narrative, a workers’ compensation attorney must mount a vigorous defense to the insurer’s life care plan, which will be authored by some of the most prominent life care planning experts money can buy. That’s a steep hill for an attorney and their client to climb.
Above and beyond our ethical duty to do so, we workers’ compensation attorneys have a moral duty to ensure we secure the most favorable resolutions possible for our clients, the hardest-working people in society. In cases where our clients are seriously injured, a credible and persuasive life care plan should be a key component of our litigation strategy and a tool we should not hesitate to invest in for the benefit of our clients.
Jerry M. Lehocky is a founding partner of Pond Lehocky Giordano LLP, the largest workers’
compensation and Social Security disability law firm in Pennsylvania and one of the largest in the United States. He can be contacted at jlehocky@pondlehocky.com.
Reprinted with permission from the July 25, 2023, edition of The Legal Intelligencer/Pennsylvania Law Weekly © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
