Aggressive Defense of Workers’ Comp Mental Injury Claims

Aggressive Defense of Workers’ Comp Mental Injury ClaimsThe expansion of workers’ compensation laws to include mental injuries has added to the many challenges members of the claims management team face on a daily basis.  Among these include the investigation of mental injury claims, the review of medical records and use of independent medical experts to properly position and defend these claims.  While these challenges are numerous, failure to adopt effective claim management techniques can add to the cost of claims and decrease the efficiency of a workers’ compensation program.

 

 

What are Mental Injuries in Work Comp?

 

There are two main types of mental injuries in workers’ compensation claims.  It is important for interested stakeholders to understand the variety of challenges one can face and effectively handle them:

 

  • Physical/Mental Injuries: This type of claim typically results because of a physical injury.  For example, the employee suffers a low back injury.  Following the injury, the employee develops depression or other psychological and/or psychiatric sequela.  The challenge in handling this type of claim is the employee is suffering from conditions that require more than one medical expert – one handling the physical component and the other including metal issues.

 

  • Mental/Mental Injuries: This is an injury that results from work-related mental stress or stimulus that produces in many cases symptomology or ailments deemed to be compensable.  The legal standard for this type of injuries varies in each jurisdiction.  Claims for mental injuries usually require the diagnosis be made by a mental health professional and can be limited to certain conditions such as Post-Traumatic Stress Disorder (PTSD).    In some instances, “mental/mental” injuries are not compensable – and can only result in liability if there is a physical injury.

 

 

Claims Investigation In Mental Injuries

 

Whenever an employee makes a claim (or can make a claim for mental injuries), it is important for the members of the claims management team to take note and use extra caution.  These types of claims carry significant medical and indemnity exposures.  They can also be costly to defend.  Areas of investigation for mental injuries should include the following:

 

  • Complete medical background, including medical care and treatment with psychological and/or psychiatric professionals;

 

  • Information concerning the employee’s history of substance use and/or abuse. This should also include the use of alcohol, prescription medications, and street drugs.  Employees are often hesitant to answer questions about these matters and can become a point of contention during recorded statements and depositions;

 

  • Family history and interpersonal relationship information. This can include adoption, gender identity dysphoria or divorce;

 

  • Criminal background check and arrest records; and

 

  • Information concerning the employee’s credit history and insurance claims.

 

 

Aggressive Defense of Mental Injury Claims

 

Members of the claims management team must treat all employees with the respect and dignity they deserve.  It is important to confront cases involving psychological and/or psychiatric claims with an added level of care given the sensitive nature of these issues.

 

  • Investigation: Never leave a stone unturned when handling these cases.  It is important to obtain complete information about the employee and the events surrounding the injury.  Important factors include whether the employee directly witnesses the incident leading to the claimed mental injury, the magnetite of the mental stress suffered because of the incident, the nature, and quality of fear and anxiety connected with the event in question and whether the stressor is something beyond what one would ordinarily experience.

 

  • Experts: In many mental/mental workers’ compensation claims, an effective defense will require the medical opinions of multiple medical experts.  This will often include psychologists, psychiatrists, neuropsychiatrists, therapists/counselors and/or social workers.

 

  • Legal: Given the complexity of these type of claims, members of the claims management team often refer these cases for defense.  Before a referral is made, a claims handler may consider setting the claim on for a “roundtable” session or having it reviewed by a peer.  Using an aggressive defense attorney is a solution when all else fails.

 

 

Conclusions

 

Workers’ compensation claims that involve a psychological and/or psychiatric component require members of the claims management team to be fully engaged.  This is due to the fact the exposures can be costly, and bad decisions can negatively impact a program’s bottom line.  Interested stakeholders need to understand the issues involved and defend these matters with care to be successful.

 

 

 

Michael Stack - AmaxxAuthor Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center.

 

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

 

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

 

 

Reduce Costs via Workers’ Comp Litigation Management

Reduce Costs via Workers' Comp Litigation ManagementEffectively monitoring and handling litigation costs is an important role for each member of the claims management team.  This is because once a matter is placed into litigation, a level of uncertainty arises.  This not only includes unforeseen costs and expenditures but the possibility of an unexpected outcome if the case goes to a hearing.  Failure to perfect analysis of a claim can lead to excessive and added costs to any workers’ compensation program.

 

 

Setting the Stage via Claim Analysis

 

Roughly 98% of all workers’ compensation cases settle without the need to go to a formal hearing.  Of the remaining claims, defense counsel will litigate and hopefully reach a favorable result for the employer and insurer.  While every case sent to counsel for defense is evaluated, it is crucial to ensure the claim receive the proper attention and analysis so excessive costs and be avoided in the long run.

 

Effective claims analysis starts with a diligent investigation that immediately after the work injury.  Members of the claims management team need to take part in this investigation by understanding what questions need to be asked and how to handle the collection of evidence.  It is also essential to train all employer representatives on completing the proper forms and evaluating the Average Weekly Wage of the employee to avoid costly mistakes.

 

 

Providing Proper Direction for the Defense Attorney

 

This step in the process goes beyond selecting the correct defense counsel to refer a claim.  Several steps need to occur beforehand to ensure the claim is given the proper analysis along with the development of the appropriate strategy.  Additional steps need to take place internally to vet cases and make sure claims are sent to defense counsel for handling.

 

Once the case is referred for defense, the individual claim handler should ensure proper procedures are followed.  Items to consider include:

 

  • Drafting a coherent claim referral letter to counsel outlining the known facts of the claim and possible defenses;

 

  • Outline the objectives of the file referral and what the best outcome would be on the matter;

 

  • Ensure the preservation of confidentiality and other potential conflicts of interests in the tripartite relationship with the insured; and

 

  • Reiterate claim handling guidelines, and expectations should the file be selected for audit.

 

 

Developing a Comprehensive Defense Plan

 

The best defense council relationship is one where the attorney acts a fiduciary, meaning your best interests are put first.  A good working relationship will develop with the claims management team and defense counsel to coordinate the defense of a file. This goes beyond making sure that attorney understands the expectations on a file.  Establish the rules of engagement with a new attorney relationship to avoid confusion down the road.

 

  • Status Reports: Establish a reasonable frequency for status reports from defense counsel. Each report should include information on what events took place during the reporting period, how that information impacts their analysis and what to expect.

 

  • Exposure Analysis: Understand the nature and extent of all claim issues.  This allows members of the claims management team to set reserves accurately.  Failure to do so can result in losses to a workers’ compensation program and the inability to settle cases with efficiency.

 

  • File Reviews: Holding consistent file reviews will allow for the claims handler, defense counsel and other interested stakeholders to discuss important cases and plan accordingly.  It can also be used to identify trends and address important developments.

 

 

Conclusions

 

Running an efficient workers’ compensation program requires the engagement of the claims management team, defense counsel and other interested stakeholders to use scarce resources effectively.  This can be accomplished through the development of a litigation plan on each case.  The benefit of implementing such successful programs is settling and cost-effectively winning more cases.

 

 

 

Michael Stack - AmaxxAuthor Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center.

 

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

 

©2018 Amaxx LLC. All rights reserved under International Copyright Law.

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Key Steps to Avoid, Manage, and Win Workers’ Comp Litigation

Key Steps to Avoid and Manage Workers’ Comp Litigation You’re missing a great opportunity if you view your defense attorney as a necessary expense rather than an asset to your workers’ compensation program. Employers who partner with their lawyers throughout the entire claims process can see fewer litigated claims and more wins when they do go to court.

 

While some workers’ compensation payers say defense counsel are not their friends, those who do find they have better outcomes and lower overall program costs. It involves getting the right attorney and treating each other as a fiduciary.

 

 

Attorney’s Role

 

The main function of your attorney is to represent your organization’s interests in legal battles. However, many employers are expanding the role of lawyers; making them part of a team focused first and foremost on reducing your losses. Rather than trying to control costs by keeping attorneys at bay unless and until a suit is filed, they have realized better results by working closely with them throughout the process.

 

The idea is to get the perspectives of several professionals before making decisions, such as whether to accept or deny a claim and how to proceed. The team approach creates a synergy, yielding better outcomes. Your defense attorney should play a prominent role in the group.

 

Ideally, the attorney should be involved from the very beginning — sometimes, even before a claim has been filed. Employers and payers should be able to contact their defense attorneys by phone or email and:

 

  • Ask questions based on the information you have.
  • Get advice on whether to accept or deny the claim.
  • Find out their thoughts on how best to limit exposure.
  • Get recommendations for particular experts, such as independent medical examiners.
  • Hear suggestions for investigative techniques.

 

It’s also incumbent upon payers to provide their attorneys with as much information as possible about the injury and the affected worker. For example, letting the lawyer know about an injured worker’s preexisting condition or the fact that he has been in therapy for three months could change his opinion and advice on how to move forward.

 

 

Getting the Right Attorney

 

If you wouldn’t feel comfortable contacting your attorney early in the claim process, you might want to find another attorney. If the lawyer starts billing you as soon as she picks up your phone call, she is not a ‘team member’ invested in your program.

 

To ensure you have the best attorney, look at his bills. He should not nitpick or overcharge you for simple questions or advice, and should be willing to explain all his charges.

 

Avoiding contact with your attorney at the beginning of a claim as a way to control costs should not be an issue. Your attorney should treat you as a friend and be willing to provide his thoughts without increasing his fee.

 

 

Winning in Court

 

Despite the best efforts of all involved, some claims will be contested. Having your defense attorney involved from the beginning gives you a leg up in court Additionally, you’ll have a competitive advantage if you investigate every case early and thoroughly, and be ready to try every single case.

 

While the employer technically does not have the burden of proof, in reality, that is how they should proceed. Payers should prepare based on the premise that they, not the injured worker, have to prove their case.

 

Among the most effective tools to gather early in the claims process are:

 

  1. Written statements. The injured worker, supervisor, and any witnesses should be questioned and asked to sign statements attesting to their recollection of the incident. These can be a great tool later in court if these same individuals have different memories of the incident.

 

  1. Videos. A recording of the actual event as it happens is ideal, but not always available. However, several types of videos can help with a case:

 

  1. Video of the area. The judge and others will have a clearer understanding of how the incident occurred if they can see the actual conditions.

 

  1. While an actual recording of the incident may not be available, you can try to recreate it. This might show that the incident could not possibly have occurred in the way it was described.

 

  1. Short video of the job. This will help educate the judge, as well as the treating physician, IME, and the attorney. For example, it might show a different version of the worker’s tasks than what he has described, leading a physician to clear him to return to work.

 

  1. Outside angles. Cameras outside the area or the building may provide valuable insight, such as if the injured worker suddenly loses his limp when he steps out of the building.

 

  1. Social media. Payers should peruse a variety of social media sites. Younger workers, especially, are prone to post themselves in many environments and activities, some of which may be in direct contrast to their alleged injuries.

 

An effective defense attorney goes above and beyond the norm. That means presenting the evidence in the most persuasive manner possible.

 

Rather than just going to court with written statements, the attorney should bring people to testify, including the supervisor, the physician — in person or via phone — and witnesses who have signed statements. Live testimony from the injured worker or witnesses who recall the incident differently than they had originally can be asked to read aloud their written statements. The attorney can also ask the supervisor and witnesses to dress the way they were on the day of the incident as it lends more credibility.

 

 

Conclusion

 

Working closely with your defense attorney can help you identify the cases you should accept and those you should fight. Getting the attorney involved early in the process and doing a comprehensive investigation can avoid litigation in many cases, and help you win cases that do go to court.

 

 

 

Michael Stack - AmaxxAuthor Michael Stack, CEO Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center. .

 

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

 

©2017 Amaxx LLC. All rights reserved under International Copyright Law.

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

4 Items Claims Handlers Want From Their Defense Attorney

Workers’ compensation defense attorneys may lay awake at night wondering what their claims handler really wants.  Besides getting their files closed in a timely manner, they want to work with defense attorneys committed to a zealous defense of the file in an ethical and cost-effective manner.  Here are some tips that can help defense attorneys sleep better at night knowing they are giving their claims handler what they want.

 

 

Calculate the Average Weekly Wage (AWW)

 

The AWW is the basis for most indemnity benefits in a workers’ compensation claim.  Failing to calculate it correctly can increase the cost and exposure of the claim.  A seasoned defense attorney needs to communicate with the employer and receive additional explanation from the employee on a number of issues.  The list can be endless, but some special considerations include:

 

  • Whether the employee was a full or part-time worker;

 

  • Whether the employee was working any additional jobs outside the employer involved in the claim;

 

  • Investigation into the nature of any fringe benefits the employee was receiving. This includes tips, bonuses, insurance benefits and other forms on potential income; and

 

  • Special circumstances concerning the employee’s employment. This is especially the case when the injured worker in a seasonal employee, construction worker or part of a union collective bargaining agreement.

 

 

Calculate and Evaluate the Indemnity Exposure

 

Once the AWW is correctly calculated, the defense attorney can provide an accurate analysis to the claims management team about wage loss exposure.  This includes information on the following benefits:

 

  • Temporary Total Disability (TTD)—Benefits paid when the employee is temporarily off work due to injury or disability;

 

  • Temporary Partial Disability (TPD)—Benefits paid when the employee returns to work, but at reduced hours or rate of pay;

 

  • Permanent Partial Disability (PPD)—Typically a hybrid benefit based on the AWW and the number of weeks disability assigned by statute or rule to an injury; and

 

  • Permanent Total Disability (PTD)—Benefits paid when the employee is permanently precluded from returning to gainful employment based on their age, training and experience, and the type of work available in the geographical area. Various presumptions may apply concerning an employee’s receipt of Social Security Disability benefits.

 

 

Aggressive Defense Strategy That is Cost-Effective

 

Members of the claims management team also appreciate an aggressive defense strategy that moves a case toward settlement in an efficient and cost-effective manner.  Considerations for such planning include:

 

  • An immediate status report upon receiving the claims file, with periodic reports that are robust and evaluate the strengths and weakness of various defenses, a reasonable strategy and probable outcome;

 

  • Identification of missing information that needs to be discovered in order to provide an accurate analysis and defense. This includes a plan on how to uncover this information and whom might be a witness at hearing; and

 

  • Recommendations on how to move a case toward settlement. This includes information concerning the timing of an independent medical examination or independent vocational evaluation.

 

 

Medicare Secondary Payer Compliance

 

Medicare Secondary Payer compliance is an important part of any workers’ compensation claim analysis.  This includes recommendations on the following topics:

 

  • Whether a service provider should be utilized to prepare a Medicare Set-aside allocation;

 

  • If the Medicare Set-aside should be included for review and approval under the voluntary CMS process; and

 

  • Matters concerning conditional payment identification and repayment.

 

 

Conclusions

 

The wants of a workers’ compensation claims handler are quite simple.  They expect professionalism and responsive defense counsel to assist them on all claims.  While the defense attorney might not have all the answers, they need to assist the claims handler in discovering the information and reporting on it timely.  This also includes a reasonable analysis, while being a zealous advocate.

 

 

 

Michael Stack - AmaxxAuthor Michael Stack, Principal, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center. .

 

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

 

©2017 Amaxx LLC. All rights reserved under International Copyright Law.

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

8 Categories To Define Winning Workers’ Comp Litigation Strategy

Legal fees in litigated workers compensation claims can quickly become a significant part of the overall claim cost.  Fortunately, there are some very good ways to control legal cost without having a negative impact on the overall claim settlement.  The best time to establish control over legal fees is when the defense attorney is first employed; however, the best time to control the overall strategy of the litigation is before counsel is even hired.

 

Prior to hiring counsel, a fast track defense strategy should be established to ensure that appropriate actions are taken immediately upon notification of a claim. [The individual components of a fast track strategy are beyond the scope of this article.] The establishment of some basic ground rules for the legal fee billing before the attorney goes to work on the workers compensation claim will result in a measure of cost control without sacrificing the best possible settlement of the claim.

 

Litigation cost control is much more than negotiating the hourly rate and whether or not you will be charged for postage.  There are Best Practices for Litigation Management that should be utilized as a major part of your legal cost control.  The Litigation Management Best Practices can be broken down into easy to measure performance goals.  The following questions will assist you in determining if your current litigation program is controlling cost fully.

 

 

Defense Counsel Selection:

  • Is the defense counsel on your company’s list of approved counsel?
  • Is the defense counsel selected a law firm, or a specific attorney (preferably), within the law firm? Many carriers have an “approved list” of attorneys they use; this doesn’t necessarily mean those are the best attorneys or the most knowledgeable for your purposes, so consider their qualifications carefully and if you have another attorney you wish to use, discuss adding him/her to the list of approved counsel.
  • If the defense attorney is new to representing your company, has the attorney been provided the terms and conditions of the assignment?
  • Have they visited your operations, seen your products and know the basic requirements of the jobs within your workplace?
  • Have the reporting requirements been clearly stated?
  • Was a litigation budget request incorporated into, or attached to, the assignment letter?

 

The Answer:

  • Did the workers compensation adjuster refer the matter to defense counsel timely when an answer must be filed?
  • Does the employer provide the complete facts of the injury immediately such as how the injury occurred, photographs of the accident, information about weight of objects lifted, the employee’s application for employment, information about any prior injuries, prior claims, or prior medical absences. Having the employment file is very helpful.
  • Does the defense attorney have everything needed to complete ALL blanks on the First Report of Injury. Does he have the OSHA Report?
  • Does the defense attorney offer arbitration or mediation as an alternative to protracted litigation?

 

Initial Legal File Handling:

  • Are all medical and/or indemnity issues covered by the workers compensation policy?
  • Is the potential exposure on the claim evaluated correctly?
  • Is there an economic justification for a quick disposition of the claim?
  • Are there any statute defenses that need to be addressed?
  • Are there any unique aspects of the claim that could alter the outcome favorably or unfavorably?
  • Are all potential third parties noted?

 

Defense Counsel Acceptance:

  • Does the defense counsel send an acknowledgment of the assignment to both the workers compensation adjuster and to your workers compensation coordinator?
  • Does the defense counsel provide an initial review and evaluation report within the first 30 day?
  • Does the initial review offer alternative courses of action and the probable outcomes?
  • Does the defense counsel provide a detailed budget plan within the first 30 days?

 

Defense Counsel Staffing:

  • With the acceptance of the assignment, did the defense counsel specify who will be working on the claim?  (Unless the claim is extremely complex, the defense attorney, possibly one junior associate and one paralegal are all of the law firm that should be involved.  Multiple associate attorneys and multiple paralegals will add time [cost] learning the claim before being able to proceed with an activity).
  • Is the hourly rate for each of the law firm members clearly stated?
  • Does the attorney do work that should be done by the paralegal?

 

Budget:

  • Is the budget completely itemized?
  • Is research time included only for extraordinary issues?
  • Does the budget include the cost of any experts that will be retained?

 

Claim Handling:

  • Does the defense counsel make recommendations for any additional adjuster work that should be done?  (Defense attorneys are notorious about having the paralegals do the adjuster’s job of obtaining medical records and other documentation).
  • Does the defense attorney have the adjuster hire other vendors (surveillance, nurse case managers, vocational rehabilitation, etc.) or does the defense attorney complete the adjuster’s work?

 

Actions of Defense Counsel:

  • Is defense counsel avoiding the expenses of depositions and other discovery if it is the intent to settle the claim? Often, some discovery prior to settlement can reduce the amount of the ultimate settlement.
  • Is the defense counsel requesting only necessary depositions?
  • Is the defense counsel reporting significant developments timely?
  • Is the defense counsel reporting the progress of the claim at least every 90 days if the case is moving slowly?
  • Do the reports from defense counsel cover all pertinent information without repeating prior reports?
  • Does each report include an action plan to move the claim forward?

 

Hearings / Trials:

  • Is the hearing / trial date reported as soon as it is known?
  • Does the defense attorney provide a pre-hearing / pre-trial report at least 30 days ahead of hearing / trial?
  • Does the defense attorney provide a strategy for the hearing / trial?
  • Does the defense attorney timely request additional settlement authority when needed?
  • Does the defense attorney provide a timely update or report on the hearing / trial?

 

Legal Bills:

  • Is the amount billed for each activity appropriate?
  • Are the bills properly itemized with each activity being billed separately?  (As opposed to block billing where several activities are lumped together and one charge is given for all work done).
  • Do the legal bills follow the defense attorney stated course of action?
  • Are the legal bills in compliance with the litigation budget?

 

If you are uncomfortable trying to control the litigation cost or feel you need an expert to review the litigated workers compensation claims, please contact us for assistance.

 

 

Author Michael Stack, Principal, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is founder & lead trainer of Amaxx Workers’ Comp Training Center. .

 

Contact: mstack@reduceyourworkerscomp.com.

Workers’ Comp Roundup Blog: http://blog.reduceyourworkerscomp.com/

Live Stream WC Training: http://workerscompclub.com/livestreamtraining

 

©2017 Amaxx LLC. All rights reserved under International Copyright Law.

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Professional Development Resource

Learn How to Reduce Workers Comp Costs 20% to 50%"Workers Compensation Management Program: Reduce Costs 20% to 50%"
Lower your workers compensation expense by using the
guidebook from Advisen and the Workers Comp Resource Center.
Perfect for promotional distribution by brokers and agents!
Learn More

Please don't print this Website

Unnecessary printing not only means unnecessary cost of paper and inks, but also avoidable environmental impact on producing and shipping these supplies. Reducing printing can make a small but a significant impact.

Instead use the PDF download option, provided on the page you tried to print.

Powered by "Unprintable Blog" for Wordpress - www.greencp.de