How Would You Decide? A Nebraska Case Study
Here’s what happened
On October 26, 1996, a Nebraska employee sustained a work-related injury and the employer, through its carrier, began to pay various benefits voluntarily. The employee filed a workers’ compensation claim for additional benefits on February 8, 2005. The employer denied additional benefits, contending they were barred by operation of Neb. Rev. Stat. § 48-137, which provides generally that claims shall be forever barred 2 years from the time of the making of the last payment. The employer contended the last payment, a check payable to the employee’s treating physician, had been mailed on February 7, 2003, and thus the employee’s claim was accordingly barred.
How the Court Ruled
In Obermiller v. Peak Interest, L.L.C., 277 Neb. 656, 2009 Neb. LEXIS 67 (April 23, 2009), the Supreme Court of Nebraska reversed the trial judge and the review panel, holding that the date the payment is received controls since that date gives the employee a more definitive date for knowing when the statute of limitations begins to run. The court distinguished an earlier decision, Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004), in which it had held that an insurance carrier who mailed a check within 30 days of the entry of a compensation award did not subject the employer to a 50-percent penalty for delinquent payment (workersxzcompxzkit) where the payment was received after the 30-day penalty period. The court observed that different treatment was required since the two situations — the 50% penalty versus barring the employee’s claim — had marked differences in which party was penalized for noncompliance with the time limit and the purpose that the date of payment served under the two statutes. See generally Larson’s Workers’ Compensation Law §§ 126.07, 131.02.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com. http://law.lexisnexis.com/practiceareas/Workers-Compensation
Try the WC Cost Calculator to show the REAL COST of work comp.
Look at WC 101 for the basics about workers comp.Workers’ Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
In Ontario, Canada the Workplace Safety and Insurance Board (WSIB) considers prior injuries and prior medical records for several reasons, according to Ontario, Canada workers' compensation attorney David Brady of Hicks Morley. If the current injury is a recurrence of a prior work-related injury, the WSIB claim number remains the same. If the current work-related injury is new, it will be given a new WSIB claims number. Use medical records to establish date of injury. This is significant for Schedule 1 employers. Schedule 1 employers comprise most of the private sector employers and some public sector employers who have opted for coverage under Schedule 1. Except for very small employers and construction employers, Schedule 1 employers are experience rated under a New Experimental Experience Rating program (NEER). NEER is based on actual and expected claims costs for each claim within specified claims costs maximums. In its very simplest form, employers are classified by business activity and pay annual premiums based on the risk assessment associated with their industry rate group. Employers in the NEER program receive annual surcharges and rebates depending upon how their experience relates to the experience of their rate group. The experience rating model works (workersxzcompxzkit) on a moving three-year claims experience wheel. If there is a recurrence and the original claim is outside of the moving three-year period, it will not count in the annual surcharge/rebate calculation. If the current compensation claim is new and not connected to a prior claim, it counts in the annual surcharge/rebate calculation. Bottom line, accident claim dates matter with respect to an employer's annual experience rating results. Prior injuries and prior medical information are, therefore, important in establishing whether accidents and claims costs are new or connected with earlier workplace events. Of course, all relevant medical information must be brought forth (voluntarily or by subpoena or by order of the WSIB/WSI Appeals Tribunal) to establish entitlement under the legislation. The worker must show, on a balance of probabilities, that the workplace was a significant contributing factor of the worker's medical condition(s). Author: Attorney Brady can be reached at 416-864-7310 or david-brady@hicksmorley.com www.hicksmorley.com of Toronto, Canada. Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Didn’t know Canada had a Second Injury Fund? Read what Canadian WC Attorney from Hicks Morley, David Brady says about the use of prior medical records to obtain SIEF funds.
For Schedule 1 employers, Schedule 1 employers comprise most of the private sector employers and some public sector employers who have opted to be covered under Schedule 1, the WSIB has a Second Injury and Enhancement Fund (SIEF). This is paid for by Schedule 1 employers in their premiums and covers that portion of WSIB benefit entitlement payments associated with non-occupational causes. The non-occupational factors must be contributing to the length of recovery and/or the original cause of the workplace injury or illness.
SIEF relief is usually 50% of the WSIB claims cost. It operates on a matrix depending upon the significance of the non-occupational medical condition in increments of 25%.
Bottom line, for Schedule 1 employers, the WSIB’s SIEF directly reduces the claims costs attributable to the employer and has a beneficial effect on the employer’s NEER results.
The SIEF is one way the WSIB recognizes tort law’s “thin skull” rule.
Of course, all relevant medical information must be brought forth (voluntarily or by subpoena or by order of the WSIB/WSI Appeals Tribunal) to establish entitlement under the legislation. The worker must show, on a balance of probabilities, that the workplace was a significant contributing factor of the worker’s medical condition(s).
Author: Attorney Brady can be reached at 416-864-7310 or david-brady@hicksmorley.com www.hicksmorley.com of Toronto, Canada.
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Benefits of the Nurse Triage Approach to Workplace Injuries
Employees obtain immediate medical attention from a trained occupational health professional. They love the new benefit that helps them deal with their pain. Extensive data shows that costs are much less than a visit to a hospital or clinic. Supervisors no longer need to be solely responsible for making the medical assessments of injured employees with all the awkwardness of the work relationship. Employees are soft-channeled to a designated medical facility, usually an occupation health clinic, identified in advance by the employer location.
The initial triage report from the nurse is faxed to the designated medical facility before the employee arrives – reducing the time an employee waits to be treated while shortening the time away from work. The paperwork is begun and emailed at the conclusion of the call.
All calls are recorded and the nurse is well-trained and personable when asking a series of questions to get at the cause of the injury. This locks an employee to a story at the time of the workplace injury. It may make all the difference in avoiding a runaway case. Employers can identify specific loss control oriented questions for certain types of injuries, use of personal protective equipment for example.
The results of the triage process can be measured and the ROI is compelling. It reduces the actual number of claims handled because as many as 50% of the calls result in a non-referral to an outside metical provider. Good triage has been shown to lower the ultimate cost of a claim by driving more accountability. It cuts the number of instances where the ‘story’ or nature of the injury or body part changes. Soft-channeling by the nurse increases utilization of discounted network providers typically saving 25% per bill. The return on investment is often $3 – $5 for every dollar invested.
Author: Brian Cullen ARM, CLIC, Executive Director with Medcor has joined our list of guest bloggers. He can be contacted at 630-240-6741 or bcullen@medcor.com
Click on these links to try it for yourself.
WC Calculator www.ReduceYourWorkersComp.com/calculator.php
TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php
WC 101 www.ReduceYourWorkersComp.com/workers_comp.php
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Steps in a Well-Designed Plan Early Return-to-Work The concept of transitional duty (TD) where an injured employee returns to work as soon as medically able is a key cost containment driver. At MaxCo's* facilities, modified jobs were developed for injured employees who cannot return to work at 100 percent capacity. (*Name changed for privacy.) No employee is allowed to lose time from work without diagnosis and treatment by the division doctor. The division doctor is fully aware of MaxCo's desire to offer modified-duty jobs to injured employees. In almost all cases the division doctor visits MaxCo's facilities and is familiar with each job or job classification. Once a facility has the medical restrictions from the doctor, it offers the employee a modified-duty job within those medical restrictions. The key to modified-duty is to limit the duration of the job to the period of time when it is medically necessary. In some cases, MaxCo has faxed the doctor a revised job description to review and authorize so the division can be certain the job offered to the employee matches medical restrictions. Then, the supervisors monitor the situation closely to ensure the employee does not attempt to exceed medically-approved limitations. Once an employee leaves work on workers' compensation it is likely "psychologically disemployed" may set in and the employee may attempt to extend the duration of the absence. For this reason, MaxCo does everything possible to assist employees in returning rapidly to work. On the other hand, MaxCo does not hesitate to move to discontinue an employee's workers' (workersxzcompxzkit) compensation benefits if an offer of a suitable modified-duty job is rejected by employee. Rejection is a signal to MaxCo the employee does not want to return to work. An excellent tool for employers to track return-to-work data is to make use of the Return to Work Tracker and the RTW Ratio History found on our website along with the associated forms. (A future blog will discuss this tool in more detail!) Author: Robert Elliott, J.D. Click on these links to try it for yourself. WC Calculator www.ReduceYourWorkersComp.com/calculator.php TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php WC 101 www.ReduceYourWorkersComp.com/workers_comp.php Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
When companies are looking for ways to cut workers’ compensation costs, an objective review of the workplace injury process, known as injury triage, may reveal critical areas in current procedures needing significant improvement. Injury triage is based on the concept of the timely reporting of all workplace injuries within 24 hours of occurrence.
Ask these questions:
1. How and when is an injury reported at your company?
2. Who manages the process?
3. Do you use telephonic nurse case managers?
Best Practices Tips – Basic Information
Companies with good control over medical costs have this information.
1. Number of work related injuries or actual WC claims in the past year.
2. Number of OSHA “recordable.”
3. Experience modification last year; prior year, 2nd prior year.
4. Total number of employees.
5. At how many locations.
6. In how many states.
7. Lag time (average) from injury occurrence to incident reported.
8. Is the timeliness of loss considered a problem?
Best Practices Tips – Analyze ACTUAL Claims Data
Don’t be put off by “unavailability” of this data. Ask for it.
1. Number of incidents reported after 24 hours.
2. Number of incidents reported after 3 days.
3. Number of claims or percent reported in more than a week.
4. Number of problematic cases reported late.
5. Percent of incidents typically referred outside. i.e., such as 80% or 100%.
6. Administrative cost of opening a claim file.
7. Average cost of a medical only claim.
8. Average cost of a lost time claim.
9. Number of percent of claims or actual bills served by non-network providers.
10. Amount of money saved with network provider discounts.
11. Amount of money lost because of non-network providers.
Author: Brian Cullen, ARM, CLIC, Executive Director with Medcor has joined our list of guest bloggers. Thank you Brian. He can be contacted at 630-240-6741 or bcullen@medcor.com
Click on these links to try it for yourself.
WC Calculator www.ReduceYourWorkersComp.com/calculator.php
TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php
WC 101 www.ReduceYourWorkersComp.com/workers_comp.php
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Can YOU Afford a $583,413 Drug Testing Policy Disaster?
The Center for Drug Testing Information (CDTI) Drug Testing Policy Project reports:
By neglecting a few key words in its drug testing policy, ConocoPhillips was found in “willful” violation of Oklahoma’s Workplace Drug and Alchol Test Act.
A jury awarded the employee $583,413. An additional negotiated amount for attorney’s fees significantly increased the award.
Here are a few other drug testing policy “train-wrecks” that could have been avoided.
1. Minnesota: 2008. INGDirect faced punitive damages for not accurately enforcing state law; case was settled out of court. (Wehlage v. ING BANK FSB, d/b/a/ING DIRECT, Case NO. 07-CV-1852 (PJS/RLE).
2. Missouri: 2006. Wal-Mart looses unemployment case because the company policy did not accurately reflect state law. (Gaylord v. Wal-Mart Associates, Inc., and Division of Employment Security, WD 65939).
3. Connecticut: 1996. Employer failed to consider state law (workersxzcompxzkit) requirements when enforcing its policy. (Doyon v. Home Depot U. S. A., Inc. 850 F. Supp.125).
For Help: Contact Bill Judge one of the nation’s more experienced drug testing lawyers. Bill has assisted employers in developing hundreds of policies in virtually every state, including some of the largest employers in the country.
Author: Bill Judge
Bill Judge is an attorney who, for the past 24 years, has concentrated his practice on research, consultation, and management training related to the legal issues of substance abuse in the workplace and in our nation’s schools. Attorney Judge, JD, LLM can be reached at: 708-3341-80100.
Click on these links to try it for yourself.
WC Calculator www.ReduceYourWorkersComp.com/calculator.php
TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php
WC 101 www.ReduceYourWorkersComp.com/workers_comp.php
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
1. To really get a grip on managing your company's workers' compensation costs, division of labor is critical. Most importantly, the division of labor must be specific and have at least the appearance of permanence. 2. Giving a regular, trusted manager an additional title or responsibility will only be an asset to her resume. In some cases a position will need to be created. 3. "Floating" responsibilities or merely suggesting them to employees only guarantees you miscommunication and confusion at a time when you want neither. 4. Primary injury responsibilities fall under the heading of "injury coordinator." If your company is large enough, you will want to include supervisors, mid-management, and legal and medical positions. 5. Naturally, some of these posts require job-specific training on matters of workers' compensation. Some require additional professional certification. 6. It cannot be underestimated how much the strength of these precautions (workersxzcompxzkit) can save a company in the event of catastrophic accidents. 7. Unrelated employees may also be included in the structure as they, too, may have responsibilities and roles to perform in the event of a work-related incident. Each person should feel like a member of a team to aid in thorough and rapid documentation – not to mention first aid. 8. As a general rule of thumb good managers occasionally praise employees for accepting additional responsibilities. A feeling of pride and leadership are never mistakes in a well-run company. 9. Workplace injury roles and responsibilities discussed here are broad enough to apply to virtually every type of business, but they can also be customized and integrated in order to dovetail with your specific company's way of doing business. Author: Robert Elliott, J.D. Sign up for the online newsletter at www.ReduceYourWorkersComp.com to become familiar with workers' compensation issues. Workers' Comp Kit® is a web-based online Assessment, Benchmarking and Cost Containment system for employers. It provides all the materials needed to reduce your costs significantly in 85% less time than if you designed a program from scratch. Click on these links to try it for yourself. WC Calculator www.ReduceYourWorkersComp.com/calculator.php TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php WC 101 www.ReduceYourWorkersComp.com/workers_comp.php Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Steps in a Well-Designed Plan Quick Post-Injury Response Quick post-injury response is one of the most critical aspects of the program. Initially, it is the most time-consuming because it requires each injury be followed up with immediate action. In general, this phase of the program requires the following steps:
- Immediate reporting of the accident.
- Transporting the employee to the division doctor.
- Discussing the employee's medical condition with the doctor.
- Providing specific forms to the doctor.
- Requiring specific information and medical restrictions from the doctor.
- Returning the employee to the facility to perform a modified-duty job matching the medical restrictions given by the doctor.
Once an injury is reported, take all appropriate steps to verify the injury was work-related, including investigating the circumstances of the accident and the extent of the injury. All MaxCo employees know every work-related injury is taken seriously and a full investigation will ensue. In the rare instance where fraud or overpayment is uncovered, reimbursement is sought and, prosecution is a real possibility if the overpaid recipient appeared to (workersxzcompxzkit) deliberately intend to defraud. MaxCo asks the employee who is currently out of work and being treated by a doctor, to request medical information directly from the doctor. The corporate medical consultant contacts the employee's doctor to discuss the person's condition and to obtain enough information to be able to offer the employee a modified-duty job as soon as the worker is medically able to perform one. Author: Robert Elliott, J.D. Click on these links to try it for yourself. WC Calculator www.ReduceYourWorkersComp.com/calculator.php TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php WC 101 www.ReduceYourWorkersComp.com/workers_comp.php Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Hold weekly meetings with injured employees to monitor progress and document return-to-work obstacles.
Guidelines for these meetings include:
1. Present the cost-savings benefits of returning employees to work in transitional duty to build and maintain management commitment.
2. Invite a member of management to join the injury management team.
3. Work with senior management and middle managers to implement a dollar-for-dollar charge-back system to the units where losses occur.
4. Design work-arounds to facilitate a timely return to work.
5. Invite Employee and family member (spouse) to bring the family on board.Click on these links to try it for yourself.
WC Calculator www.ReduceYourWorkersComp.com/calculator.php
TD Calculator www.ReduceYourWorkersComp.com/transitional-duty-cost-calculator.php
WC 101 www.ReduceYourWorkersComp.com/workers_comp.php
Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs.
©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
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