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Disclosure Bias In Workers' Compensation

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I read most things through the narrow prism of a lawyer representing injured workers and a Law Professor teaching Workers' Compensation. I read with fascination Dr. Sunita Sah's (M.D., MBA, Ph.D., Cornell University Professor)recent article in the New York Times (07/10/16) on "Disclosure Bias," one of her research interests. Her theory: Although bias disclosure is supposed to act as a warning (to consumers, advisees, clients), it often has the opposite effect, making advisees more likely to follow biased advice. For example, doctors view their own specialties as delivering more effective treatment than others to recommend treatment options. (chiropractors use hands, surgeons like scalpels, physiatrists prefer needles).

Dr. Sah's research found that even (and especially) when the doctor discloses her bias, patients are more likely to follow the advice since the disclosure "creates increased pressure to follow the advisor's recommendation." This increased pressure runs the gamut from recommendations on prostate cancer treatment to financial conflict.

In the workers' compensation world, even though I disclose my lawyer's preference when I advise clients on things like choice of venue (Milwaukee or Madison), type of claim (occupational or traumatic), kind of treatment (surgery or pain clinic), or even case tactics (settle or go to trial), Dr. Sah's research cautions against the unintended consequences of disclosure bias. Since clients do not want to signal distrust to their advisor, or indicate I may be biased, the disclosure itself may become a burden on clients. (One more thing to worry about. . . )

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