5 Things to Do When You Are Caught in the Middle
If you are a risk manager that has been with a company for a long time, you probably have developed a relationship with some of your employees. If you are an agent, and you have been in the business a long time, you probably know your book of business very well and would do anything to keep them happy and to keep them coming back to you for their insurance needs. Same thing for the risk manager: They do what it takes to resolve their employee claim problems.
But, when workers comp is brought in, this is the elephant in the room. As much as you — the employer, agent, etc. — want to help the employee, there is only so much you can do. Comp is a separate issue, with another party handling the actual claim and the compensability of the claim. It is not like glass damage where a risk manager’s agent says, “Do not worry about it; we can file a claim with the carrier and they will pay.” Sometimes they will not. It is the same with work comp. No matter how great a person your injured worker is, there is a chance their case will not get accepted for whatever the reason.
This puts you in an awkward scenario. Your employee is coming to you for help, but you are essentially powerless. Or, you are the agent and your client is upset that the carrier you recommended will not cover this particular comp claim. What do you do? Here is some advice for when you are caught in the middle:(WCxKit)
1. Get both sides of the story.
If you are only listening to what your employee is saying, you are only getting one side of the story. This will show how involved you are with your claims. If you do not talk to your adjuster a lot, or if you do not know who your adjuster even is, chances are you will be confused as well. But you cannot take the side of your employee without also hearing the facts from your adjuster — especially if this is a questionable, subjective claim to begin with. You may want to protect your employees, but both of you cannot team up against your carrier, who, by the way, is working hard to investigate all claims and make the proper decisions, which in the end affect your overall premium.
Take the time and call the adjuster. Get their side of the story. If there is something you do not understand, ask them to explain it. Make sure you really understand what the issue is and why it is there. This way you will understand what is going on, and you can explain it to your disgruntled employee. Carriers do not create these laws, they only abide by them, and they are different state to state. Each adjuster has different styles as well, so if a worker had a comp claim similar to one six years ago and it was accepted, and now the same thing happened and now it is denied — find out why. Make sure the adjuster has legal evidence to back it up.
It could also not even be denied; maybe it is just suspended pending results of investigation or upon receipt of medical records. Whatever the case, call your adjuster and talk to them about it before you start choosing sides on who is right and who is wrong.
2. Meet and discuss in person with all parties and counsel.
The best way to decide who is right and who is wrong is to meet up. The employee can come as well, but it is probably best they do not — at least not at this point. But you, as the employer, should go discuss the case in person and roundtable it with all of the involved players.
If this case has a potential for litigation, get local counsel or the house counsel the carrier uses involved. This way you can all discuss the file in a global aspect, and also plan for the ramifications should certain decisions be made. Going over pros/cons, future exposures, and the costs involved with all of those decisions helps not only you as the employer, but the adjuster as well. This forces him to get deep into the file, discuss monetary values, develop plans of action, etc. It can only produce a better outcome for all.
3. Find a middle ground for plans of action, if possible.
Just because you talk about the file and you meet up in person does not mean you will all agree on what to do. At the end of the day, the employer gets affected by these decisions through their premium. Or, if self-insured, it is your money heading out the door on this file. This is where the employer has to be involved in some of the decisions.
If you are not satisfied with what you are hearing, see if there is a middle ground, or a non-aggressive approach everyone agrees on. This is where independent medical examinations (IMEs) can be done. Nurse case managers can help, voc assessments can be performed, etc. Then after you have compiled all this info, and go over the pros, cons and monetary values of each one, then you may choose a strategy.
Maybe you do not want the carrier to take the ultra-aggressive approach because it could backfire. But you do not want them to roll over either, so find a common ground you all agree with. This way, not only are you involved in the process, but you are also involved in decision making. The adjuster wants to make the employer happy because she is also a client. But you have to abide by the statutes within your state of jurisdiction. Explore your options, and come out of that meeting with an agreed-upon plan. Not just agreeing to disagree.
4. The adjuster knows best.
Let us say you have been a risk mgr for a long time. This does not mean you are the adjuster. The adjuster has had medical and legal training, negotiation training, and she is up to date with the current law changes and trends. Adjusters know which doctors’ opinions are not worth the paper they are written on. They also know the doctors who will “slash for cash” — meaning they will perform surgery at the drop of a hat. Those doctors are out there, and hopefully your employee is not being treated by one of them.
When push comes to shove, the adjuster and counsel probably know best about what options you should be taking. Thorough discussion should bring you to this point. At the end of the day, the carrier is going to protect themselves from exposure just as much as they are trying to protect you. But be sure you understand why they are doing what they are doing. This effective communication will help you understand why the plan is what it is, and why it is best for you and your company.
5. Leave your personal feelings behind.
The hardest part from the employer perspective is not to drag personal feelings into a decision. Whether the injured worker is your best pal or your worst hire, you cannot bring those feelings into your overall decision on what to do on the file. You can alert the adjuster to these feelings, but you cannot let it influence your decision.
In the end, the decision must be fair, and it must be backed by legal precedence. The carrier is not going to deny a claim just because they feel like it. There is a reason. On the flip side you cannot force a carrier to accept a claim they are not going to accept. They understand that this worker may be your friend and you want to do what is best for them, but you cannot force the issue. All you can tell them is that this person is your buddy and you want what is fair. Again, it comes down to communication. Know why they are doing what they are doing, and you will walk away understanding why the decisions are what they are.
In conclusion, no matter who is injured, when they are injured, or what they were doing when they were injured, you will have a personal feeling about why a claim should be accepted or denied for whatever reason. But, at the same time, you have to educate yourself on why claims are accepted or denied. You can accomplish this through communication.(WCxKit)
We talk a lot about being involved with your claims, and the examples stated above point to why you need to be involved, and why you need to understand why claim decisions are made. You need to know your carrier or third party administrator (TPA) makes these decisions to protect your company and your interests, as well as their own. The decision should be fair, backed by legal statute, and ethical. Whether the claim is accepted or denied, it will be a fair decision.
Author Rebecca Shafer, JD, President of Amaxx Risk Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality, and manufacturing. She is the author of the #1 selling book on cost containment, Manage Your Workers Compensation: Reduce Costs 20-50% www.WCManual.com. Contact: RShafer@ReduceYourWorkersComp.com.
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