4 Strategies to Dispute a Claim

 
For the most part, workers compensation claims are generally compensable. The general public thinks the opposite — that all insurance companies want to deny injury coverage.
 
In actuality, probably 80 to 90 percent of claims are accepted in the beginning. But, claims can be denied later down the road for various reasons. How does an employer properly dispute a claim when there is a compensability question?(WCxKit)
 
 
4 Strategies to Dispute a Claim
 
1.      If a reported claim is questionable, the adjuster needs to know right away so a proper dispute for investigational purposes can be filed.
At the time a claim is reported to the carrier, employers will know more than the adjuster. Once the adjuster receives the file, he or she sets up the claim, contacts the employee and employer, reviews medical records, and only then makes an initial decision.
 
But if the employer calls the claim questionable, it should be marked as questionable right away so the adjuster can file a dispute that the claim’s compensability is under investigation. Most jurisdictions have a time limit on how long the claim investigation can be. If the adjuster fails to file for the extension within the time limit, the claim could be conceded as compensable — at least in the beginning.
 
 
This leads to leakage because claims dollars are being spent on a claim that may not be compensable. It takes time to take statements, get medical records, get past records, do background checks, etc. If an adjuster can file that extension right off the bat, they can take time to really investigate the claim and make the proper decision on compensability.
 
 
Generally, questionable claims receive more of the adjuster’s investigative attention. This is especially true when the employer notes on the first report of Injury that the claim is questionable; this automatically raises a red flag for the adjuster. The adjuster will review the claim’s initial parts and form questions to ask the employee when taking their statement.
 
 
An adjuster’s first call will be to you, the employer, asking why the claim is questionable. Employers can talk to witnesses, and follow up on leads made by other employees that a claim may not be 100 percent compensable and pass that information on to the adjuster in the beginning of their investigation.
 
 
All of these issues greatly help the adjuster, and after the investigation is completed, a proper decision can be made on the claim as to overall compensability.
 
 
2.      What if a claim starts off as compensable then needs to be disputed later on?
A claim can start off as compensable and then change. For example, an employee strains his back while working. There was a witness and it was reported promptly. The worker was sent for treatment the same day. Usually benefits will be conceded and the claim will be accepted into initial stages.
 
 
But, a month later the claimant tells the doctor he hurt his back the weekend before the work injury doing yard work, then he made it worse while working. This should lead to a dispute in all cases. The adjuster has no way of knowing how bad the claimant had injured themselves while outside of work, and most often the injured worker will not be able to go back and say the injury/ongoing disability is 100 percent work related.
 
 
Unfortunately, these cases are hard to come by. Claimants are no dummies, and even if this did occur most do not go to an occupational clinic and tell the doctor about how they injured themselves outside of work. But it does happen, and the adjuster should catch this every time. This can be seen in emergency department records, too.
 
 
3.      What if a worker is injured doing a simple task, and the diagnosis is way worse than it should be in relation to what the worker was doing at the time of injury?
For examples like this, adjusters rely on the medical records and the mechanism of injury. For example, a claimant states she sustained a lumbar strain while at work lifting a 20-pound tote of parts. Then the doctor finds all sorts of objective evidence on exam of severe, disabling back pain. Something is not right. Lifting 20 pounds should not have such excessive force that it herniates multiple lumbar discs. The adjuster should set an independent medical evaluation (IME), and let the IME physician comment on the severity of symptoms in relation to the stated work injury.
 
 
This type of scenario is a lot more common than one would think. The general public probably has never had a diagnostic workup on their spine or an MRI test. If a claimant sustains a simple injury and the resulting MRI shows all sorts of issues, it does not mean they all are related to the work injury.
 
 
An employer also has to beware of false positives. Just because someone has multiple levels of disc bulges, does not mean all of those are related to work. Research shows workers of all ages and occupations can have a varying level of degree of spinal issues. It is the adjuster’s job to determine what, if anything, is related to the work injury, treat those issues, and deny ongoing treatment for the rest of the worker’s spinal problems.
 
 
4.      If you know the injury is not legit, should you file the claim anyway?
The answer is in all cases is YES. It is the adjuster’s job to determine if an injury occurred out of the course and scope of employment. A human resources professional is not an adjuster (at least not very often), and if a worker comes to you and alleges a work injury, no matter what the circumstances, it should be reported to your carrier. The adjuster has training and certification, and he or she is qualified to deny claims. Some jurisdictions can carry heavy penalties for failure to report a work injury to the carrier. You do not want to be hit with one of those penalties. The company pays a carrier’s premium to be protected in insurance matters. This is what they are there for. The employer should gather all the pertinent details and report the claim promptly. Indicate on the first report of injury that the claim is questionable, and go from there. Follow up with the adjuster, and chances are it will be denied as you suspect.(WCxKit)
 
 
In sum, there are several way to dispute a questionable claim. But the most important thing an employer can do is gather all the information on the claim before reporting it promptly to the carrier. Then, follow it up with a phone call to the adjuster. The more you work together with your carrier, the better chance the questionable claims will be denied.

Author Rebecca Shafer
, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. Her book, Manage Your Workers Compensation Program: Reduce Costs 20-50% is a popular resource. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.
 

Our WC Book: www.WCManual.com
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Why a Fibromyalgia Diagnosis is a Claim Extender for the WC Adjuster

surefire way to make a workers compensation adjuster cringe is to hand them a medical report where it is alleged the injured employee has developed fibromyalgia due to a workers compensation injury. Fibromyalgia can be loosely defined as an incurable condition that causes widespread chronic pain in the muscles and connective tissues with an abnormal increase in pain level in response to touch or pressure. Fibromyalgia has other symptoms besides pain including joint stiffness, muscle spasms, weakness in the limbs, fatigue, and sleep disturbance. Also, some people alleged to have fibromyalgia, will have other symptoms including tingling, numbness, difficulty swallowing, and cognitive issues.

 

 

There is a lack of consensus as to the causes of fibromyalgia as there is no conclusive, objective diagnostic test. Some medical providers believe fibromyalgia develops in people who have a low threshold for pain with their brain being super sensitive to pain signals.  Other medical providers question the validity of this. These medical providers do not consider fibromyalgia a valid diagnosis because abnormalities are lacking in the physician’s examination of the employee. It is for this reason that workers compensation adjusters will question the validity of a fibromyalgia diagnosis from a doctor known to be “claimant friendly.” (WCxKit)

 

 

People diagnosed with fibromyalgia often are suffering from stress, depression, and anxiety. It is the high level of overlap with stress, depression, and anxiety that leads many medical providers to consider a diagnosis of fibromyalgia to be an incorrect diagnosis. To these medical providers, it is not a musculoskeletal problem, but a neuropsychiatric disease.

 

 

Credence is given to the medical providers who consider fibromyalgia a neuropsychiatric condition because most people who develop fibromyalgia have various cognitive disorders including impaired concentration, diminished attention spans, long-term or short-term memory loss, the inability to multi-task, and impaired speed of performance.

 

 

Most medical providers, including those who diagnose fibromyalgia, are reluctant to attempt to treat it. The injured employee diagnosed with fibromyalgia will be transferred from the medical provider who was treating the claimant to a pain management specialist. But even with pain management specialists, there is a vast array of methods used to deal with fibromyalgia with no single treatment plan having widespread acceptance.

 

 

The pain management specialists will often try various approaches and combination approaches including prescription medications, aerobic exercise, patient education, cognitive behavioral therapy, behavioral intervention, and even alternative medicine including homeopathy, chiropractic, and herbal medicine.

 

 

It is the use of prescription fibromyalgia medications that causes concern in the medical community. When injured employees are given prescriptions for pain medicines for a medical condition that is hotly debated, it causes some consternation with the medical providers who do not consider fibromyalgia a valid diagnosis.

 

 

When the person with the diagnosis of fibromyalgia is given antidepressants, they improve primarily in their level of pain, depression, sleep disturbances, and fatigue. This seems to bolster the position of the medical providers that fibromyalgia is a neuropsychiatric condition, not a musculoskeletal condition.

 

 

Using narcotics to treat fibromyalgia creates a lot of controversy as well. There is a lack of clinical trials that support the use of opioid in people with fibromyalgia, but many pain management clinics prescribe them freely without concern for addiction and abuse. (WCxKit)

 

 

The frown on the workers compensation adjuster’s face is due to the fact that rarely do people with fibromyalgia improve. They also never die from fibromyalgia and seldom does the condition degenerate after it is established. The workers compensation adjuster knows the fibromyalgia claim will be around for a long, long time.

 

_________________________________________________________PERSONAL EXPERIENCE OF MEDICAL CASE MANAGEMENT RN:
After publication of the above article, an RN Medical Case Manager from a major medical case management company provided the following account of an experience she had with one of her  employees. It was important information to relay, so I am reprinting it. She asked me not to use her name:

 

“I had an employee who suffered from this ‘disorder’ for almost 3 years now – as diagnosed by a Medical Doctor who was a specialist in treating Fibromyalgia.  She had every test you can imagine to rule out brain injury / neuro disorders.   She spent THOUSANDS of dollars and underwent PT for many months . . . I can only guess total costs exceed $150,000 in tests, MD visits, P.T. and medications.

I had a chiropractor who put on an Advanced Nutrition course who happened to mention that he strongly feels and can prove that Fibromyalgia can be ‘cured’ if the patient is willing to change their eating habits.  This involves avoiding all sugars and grains and consuming good fats and protein.  Among the treatment included was chiro adjustments – she underwent approx 12 and will need about 12 more on and off throughout her life.   In under  45  days she had reduced her need for medication (saving over $300/month) and is pain free for the first time in 3 years.

He has implemented this treatment (nutrition, exercise and adjustments) on several occasions with patients diagnosed by medical experts for Fibromyalgia.   My employee took pleasure in telling her Fibromyalgia doctor how she well she is doing now (he is a highly respected MD at Vanderbilt University).   She is now completely free of taking any medications and considers herself back to normal!

But you know how our world frowns on chiropractic treatment! 😉   Such a shame.”

I am providing this link for those who are interested in learning more about a nutrition-based program.
Maximized Living Nutrition Plan book by B. Lerner, BJ Hardick and K. Roberto.
https://store.maximizedliving.com/scripts/prodView.asp?idProduct=140


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. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.

 

WORKERS COMP BOOK:  www.WCManual.com

 

 

WORK COMP CALCULATOR:  www.LowerWC.com/calculator.php

MODIFIED DUTY CALCULATOR:  www.LowerWC.com/transitional-duty-cost-calculator.php

WC GROUP:   www.linkedin.com/groups?homeNewMember=&gid=1922050/

SUBSCRIBE:  Workers Comp Resource Center Newsletter

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

 

9 Facets of Arizona Workers Compensation Work Comp Basics 101

 

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In Arizona, every employer who has one or more employees, whether full-time or part-time, minors, family members or aliens, is required to carry workers compensation insurance. There are some exceptions – sole providers and members of a limited liability company or a limited liability partnership are not required to have workers comp insurance on themselves, but are required to provide workers comp coverage for themselves. Workers comp coverage is not required for independent contractors or a worker whose employment is both casual and not in the usual business of the employer. The only other exception to workers comp coverage is for a domestic servant who works in a home.

 

 

Obtaining Coverage

To obtain workers compensation coverage in Arizona, the employer has four options:

  1.  Purchasing a workers compensation insurance policy from an insurance company licensed to do business in Arizona.
  2. Obtaining approval to self-insure from the Industrial Commission of Arizona.
  3. Purchasing insurance from the state fund.
  4. Joining a group of employers who are self-insured.(WCxKit)

 

Claim Reporting

The employee must report the injury to the employer “forthwith,” but the failure of the employee to report the injury is excusable, if the employee has a valid reason for not reporting the claim timely. The employer is required to report the injury claim to the Industrial Commission of Arizona within 10 days of the claim being made.

 

Medical Benefits

The employer must provide full medical benefits without time or monetary limitations. The employer can direct the injured employee to a medical provider of the employer’s choice for the initial medical visit. After the first visit to a medical provider, the employee has the choice to continue to treat with the medical provider chosen by the employer, or to select their own medical provider. This does not apply to self-insured employers. If the employer is self-insured, the employer may select the medical provider, except in emergencies.

 

 

 

Temporary Total Disability Benefits

The temporary total disability (TTD) benefits are calculated as two-thirds of the employee’s average monthly wage, with the average monthly wage capped at $3,920.75 for TTD calculation in the calendar year 2011. The Industrial Commission determines the average monthly wage each August for the next calendar year. The maximum weekly TTD benefit in 2011 is $603.19. TTD benefits are paid every two weeks. In addition to the amount paid based on the average monthly wage, there is an additional $25 allowance for dependents  added to each biweekly check if the employee has any one or more dependents. The Industrial Commission calculates an annual percentage increase in the TTD benefit, based on changes in the state’s average monthly wage. There is an automatic cost of living increase each January 1, for accidents with a date of injury of January 1, 2010 or later. The minimum TTD benefits are calculated as two-thirds of the employee’s average monthly wage, but there is no statutory minimum amount.

 

 

The first seven days of disability (the waiting period) is not paid to the injured employee unless the employee is disabled for more than 14 days. TTD benefits can be paid for as long as the employee remains disabled.

 

 

Temporary Partial Disability Benefits:

In Arizona, if the employee is able to return to any type of work, but at a lesser rate of pay then the amount the employee was earning prior to the injury, the employee is entitled to temporary partial disability (TPD) benefits. The TPD benefits are paid at two-thirds of the difference between the pre-injury wage and the post-injury wage.

 

 

 

Permanent Partial Disability Benefits:

Arizona has two types of PPD benefits, scheduled and unscheduled. Scheduled disabilities are for body parts listed in the Arizona law, which includes arm, hand, thumb, fingers, legs, foot, toes, eyes, hearing, teeth, facial disfigurement, and scarring. For PPD, the injured employee receives a percentage of the schedule amount based on the percentage of disability. The PPD is then paid monthly on a percentage of the average monthly wage until the award is paid.

 

 

If the employee has an unscheduled disability, the injured employee may receive a percentage of the loss of earning capacity. The claim is referred to the Industrial Commission of Arizona who will review the claimed loss of earning capacity and will decide to what extent the employee will be compensated.

 

 

 

Permanent Total Disability Benefits:

If the employee is determined to be totally disabled as a result of the injury, the employee will continue to receive two-thirds of the average monthly wage for the duration of the disability, even if for life. PTD follows the same dollar caps as TTD.

 

 

Death Benefits:

The burial expenses in Arizona are covered for a work-related death up to $5,000. The death benefits for a dependent spouse and children follow the same guidelines as TTD benefits – two-thirds of the average monthly wage – up to a maximum of 500 weeks. There is no dollar maximum for death benefits. The spouse loses the death benefit if the spouse remarries, but receives two years of benefits in a lump sum. Children receive the death benefit until they are 18-years-old, or 22-years-old if enrolled in accredited educational institution.(WCxKit)

 

 

 

Vocational Benefits:

Arizona workers compensation law does not require rehabilitation benefits/vocational benefits to be paid for by the workers compensation insurer. The injured employee can apply to the Industrial Commission of Arizona Special Fund for economic assistance with rehabilitation.


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. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.

 

 


Our WC BOOK:  
www.wcmanual.com

WORK COMP CALCULATOR:  www.LowerWC.com/calculator.php

MODIFIED DUTY CALCULATOR:   www.LowerWC.com/transitional-duty-cost-calculator.php

WC GROUP:   www.linkedin.com/groups?homeNewMember=&gid=1922050/

SUBSCRIBE: Workers Comp Resource Center Newsletter

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

 

10 Adjuster Mistakes Resulting in Unintended Consequences of a Wrong Claim Reporting Decision

It seemed like a simple enough claim. The employee, a truck driver, was driving along when a car pulled in front of him from a stop sign. The big Mack knocked the car out of its path, while the truck driver brought the truck to a stop. The truck driver jumped out of the cab and ran over to check on the woman and her children in the car. The ambulance arrived and took the family away. When the police interviewed the truck driver and asked if he was hurt, he said, “No.” The next morning the truck driver awoke with a very sore neck and aching back.

 

 

It was three weeks to Christmas and the truck driver, having a family to care for, continued to work each day taking heavy doses of Tylenol. By Christmas he was in constant agony and with his wife’s encouragement, went to the local emergency room. The doctor diagnosed both back and neck strain, and told him he could not work. The employee reported the claim to the trucking company. The trucking company clerk, whose job it was to report all workers comp claims to the third party administrator (TPA), noted the accident occurred three weeks prior to being reported. The trucking company’s policy with its employees was for all injuries to be reported within five days of the date of injury. When the clerk reported the accident to the TPA, she told the adjuster the claim should be denied, as the police report showed the truck driver was not hurt and failed to report the claim within the employer’s five-day reporting period. (WCxKit)

 

 

The adjuster said, “Okay, if that is what you want,” and promptly sent the truck driver a denial of benefits letter. Unfortunately, the state law where the claim occurred, allows the employee one year from the date of the accident to report the claim. When the truck driver received a denial of benefits letter he immediately hired a lawyer.

 

 

The adjuster knew what the law was, but made a wrong decision, by allowing the employer’s reporting policy to prevail over state law. The adjuster should have immediately advised the reporting clerk that the state statutes give the employee a year to report the injury. The adjuster abandoned decision-making on the claim to the employer, even though the adjuster’s knowledge of workers comp statutes was greater than the clerk reporting the claim.

 

 

Since the adjuster denied the claim based on the employer’s wishes (or the WC clerk), no further action was taken.

 

Ten things the adjuster failed to do:

 

  1. Make 24-hour three-point contact with the employee, employer, and medical provider.
  2. Obtain a recorded statement from the employee regarding the details of the accident and the nature and extent of the employee’s injuries.
  3. Obtain documentation on the damage to the truck (to reflect the force of the impact suffered by the driver).
  4. Obtain information on the woman who caused the accident for the purpose of subrogation.
  5. Put the insurance carrier for the other party on notice of the intent to subrogate.
  6. Obtain the doctor’s diagnosis and prognosis.
  7. Obtain wage documentation and in order to calculate the indemnity benefit rate.
  8. Establish appropriate reserves for the indemnity and medical cost.
  9. Arrange for the employee to return to work on light/modified duty.
  10. Provide any type of medical management on the claim.

 

Now, since employee hired an attorney who expects to earn a fee, when the employee was released to light duty following his first doctor’s visit, the attorney failed to convey that information to the adjuster. The attorney arranged for the employee to see a doctor he referred his client to. This new doctor kept the employee off work until the employee, ignoring the doctor’s advice, returned to work on his own.

 

 

The attorney waited until the employee was released back to full duty before sending his letter of representation. The attorney-selected doctor gave the employee a small impairment rating from which the attorney would take his fee, plus his percentage of the employee’s PPD, for the time the employee was kept off work.

 

 

When the defense attorney strongly recommended the claim be settled, the adjuster had nothing to mitigate the damages. As a part of the settlement agreement, the TPA gave up the right to subrogate against the woman who caused the accident, allowing the employee and his attorney to bring a lawsuit for the traffic accident.

 

 

The employer and/or the clerk did not know the law or understand the consequences of denying compensation on a legitimate claim, even when reported late. What should have been either a medical-only claim or a very minor indemnity claim became a PPD claim, costing at least five times what it should have, because the adjuster abandon her (or his) responsibilities and allowed the employer to make the decision on compensability. The TPA also had to negotiate away the right of subrogation to get the claim settled. With subrogation rights, the entire amount paid by the TPA on the claim could have been recovered. (WCxKit)

 

 

If, as an employer, you do not know all the aspects of the workers compensation statutes in your state, trust the adjuster to make the correct decision. If you question the adjuster’s decisions on claims, discuss why they are proceeding in the way they are. Create a partnership with the adjuster in the handling of your claims, but trust the adjuster judgment and knowledge of the law. It is usually a wrong move to handle workers comp claims by what you want rather than by what state statutes require. And, it might be a good idea to train all employees involved in processing workers comp claims to not make suggestions on how a claim ought to be handled.

 


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. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.

 


Our WC Book: 
http:// http://www.wcmanual.com

 

WORK COMP CALCULATOR: http://www.LowerWC.com/calculator.php

MODIFIED DUTY CALCULATOR:  http://www.LowerWC.com/transitional-duty-cost-calculator.php

WC GROUP: http://www.linkedin.com/groups?homeNewMember=&gid=1922050/

SUBSCRIBE: Workers Comp Resource Center Newsletter

 

Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.

 

©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

 

Scottish Fishing Companies Fined for Deaths

Two companies have been fined a total of £640,000 ($1,023,000) following the death of several Scottish fish farm workers on a barge moored at a salmon farm on Loch Creran, Argyll & Bute.
 
 
According to information from the country’s Health and Safety Executive (HSE), Scottish Sea Farms worker Campbell Files and engineer Arthur Raikes, both employed by Logan Inglis Limited, Cumbernauld, were fixing a hydraulic crane on the barge when they went below deck to find cabling and pipe work.(WCxKit)
 
 
The oxygen levels below deck were very low and Files passed out, though Raikes managed to climb out. In an attempt to rescue Files, two colleagues, Maarten Den Heijer and Robert MacDonald entered the small chamber below deck but lost consciousness almost immediately.
 
 
The three men needed to be rescued by emergency services but only Files recovered, while his colleagues died at the scene.
 
 
Following the incident on May 11, 2009 inspectors from the (HSE) discovered Scottish Sea Farms and Logan Inglis Ltd. provided neither suitable information, instruction, or training for employees working in the small sealed chambers on the Loch Creran barge nor did they provide a safe way for them to work. Findings showed employees were not aware of the risks faced working on the barge.(WCxKit)
 
 
At Oban Sheriff Court on July 4 Scottish Sea Farms was fined £600,000 ($960,000) after pleading guilty to breaching Section 2(1) of the Health and Safety at Work Act. Logan Inglis Ltd. also pled guilty and was fined £40,000 ($64,000).
 
 
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

OSHA Orders Metro North to Promote, Pay Worker Cheated By Injury Misclassification

 
An investigation by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) found the Metro North Commuter Railroad Co. discriminated against an employee by classifying his on-the-job injury as not being work-related and denying him a promotion.
 
 
According to an OSHA report, the agency ordered the railroad, which provides commuter rail service in Connecticut, New York, and New Jersey, to take corrective action by promoting the worker and paying him $125,000 in punitive damages, $5,000 in compensatory damages and $11,651 in legal and medical expenses. The railroad also must pay him the difference between his current rate of pay and that of the new position, plus interest, and correct its records to show his injury as work-related.(WCxKit)
 
 
Additionally, Metro North must post a notice to employees at all 120 of its stations of their protections under the Federal Railroad Safety Act (FRSA) as well as provide all employees with an FRSA fact sheet and information on reporting work-related injuries and illnesses.
 
 
The worker filed a complaint with OSHA in October 2008 after Metro North classified his July 2008 injury as not work-related even though it occurred on the job, which forced him to pay out-of-pocket for injury-related medical expenses. Metro North notified the worker in November 2008 that he was not selected for a promotion for which he had previously applied. That decision was based in part on the worker's injury record, which should not have been considered in evaluating the promotion request. OSHA's investigation determined that both the injury misclassification and the promotion denial constituted discrimination against the worker.
 
 
Metro North and the complainant each have 30 days from receipt of the findings to file an appeal with the Labor Department's Office of Administrative Law Judges.(WCxKit)
 
 
Under the FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries, reporting certain safety and security violations, and cooperating with investigations by OSHA and other regulatory agencies.

 
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Five Ways to Reduce the Legal Expenses of Workers Compensation

 
Should we use legal expense review companies? An attorney I know posted a joke on a Facebook page that is fairly accurate these days. An adjuster hands a new file to her counsel and tells him, “I do not want to pay anything on this file, including legal expenses.” Upon hearing this, the attorney asks why he should be expected to review, handle, and get rid of a new case for free? The adjuster advises, “That is not my problem it is yours. If you want the business, do as I ask.”
 
 
This is a current trend within the insurance business. Insurance companies have long used outside Medical Bill Review (MBR) companies, or they have internal review departments, to review procedure codes in medical bills and reduce charges per jurisdiction guidelines.
 
 
Legal expense review companies have popped up and are growing rapidly. Their purpose is to do the same bill review on legal fees for cases and reduce charges accordingly. This has led to some aggravation on the part of legal firms, who feel their bills are being reduced more and more. It seems like the carriers want more services for less cost. This can be achieved properly, however, if we use a lot of common sense here. Using the most experienced and attentive attorney on files, not the least expensive, is sometimes the best way to go, because one has to take a "TOTAL cost" approach, not a "short term cost reduction" approach. Sometimes it is better to spend more now to reduce overall expenses in the longer term.
 
 
5 Ways to Reduce your Legal Costs OR Prevent Your Charges from Being Reduced
 
 
1.      Firms should use paralegals or legal assistants to review medical notes and establish a file timeline from start to current.
Certain adjusters have always used dedicated counsel — specific attorneys — to handle their cases. Sometimes the dedicated attorney is advised to handle the case from start to finish. The legal firm will use this as a chance to bill the insurance companies for all activity, including file review and setup.
 
 
The hourly charge between the actual attorney doing all tasks, and what they charge for their assistant doing the same tasks, can be very large. Attorney fees can range up to $300+ an hour, whereas legal assistants doing the same work can be billed up to one quarter of that, if not less, depending on the firm and what the insurance company has negotiated for a rate. These are called "negotiated rates."
 
 
The initial legal file setup, timeline construction, and medical records review are usually the most time-consuming tasks, depending on the size of the file and how complex it is. In one million dollar claim and the medical records took up an entire side of the office. The utilization review expert was reviewing each document, finding inaccuracies and reducing the medical expenses accordingly. An RN with 20 years surgical experience was doing this review. There can be significant cost-savings by making sure the assistant does this task, and not the actual attorney. An RN can be quite helpful on these tasks, and many paralegals are excellent.
 
 
2.      Paralegals can attend mediations and initial negotiations.
The first meetings between plaintiff attorney and defense counsel are usually uneventful. Both sides review the case and offer their stance on the file. They point out differences in the case and why there is a difference in opinion. Legal expense reduction companies state the actual attorney should not be present at these hearings, since nothing of significance happens. This way you do not have to pay larger travel costs, and time charges while waiting for plaintiff counsel to show up. This can be a nice savings in your legal budget.
 

CAVEAT: While this is the advice proffered by legal cost reductions companies, some adjusters prefer to use the more expensive upfront strategy, which is to use the MOST qualified person on the team – usually an experienced defense attorney.

 
 
3.      Legal firms should not have large charges for emails and quick phone discussions.
One thing the legal expense review companies see a lot of is overcharging for simple communication with the adjuster. A quick email response or phone call does not need to cost a quarter-hour fee, even though some firms try to sneak in such charges.
 
 
Granted, if discussion is part of a conference on an action plan or overall case review, the attorney can justify charges, and if it is a detailed discussion important to the case, the adjuster should be charged for that time. But, if the question is a simple issue, there is no need to overcharge for the service. Legal firms will often say simple communication is included in their negotiated cost for the opportunity to handle the case, and if such charges are included in their bill the legal expense company will cut the charge down or eliminate it totally.
 
 
4.      Travel time to court should not be billed separately.
If your attorney goes to local court to handle most of their clients’ cases, they should not be able to bill each carrier separately at maximum rate if they were going to travel there anyway on cases for other carriers. Or, if they do, you should be aware of this practice. Most legal firms will bill separately for this reason, but there are some that will isolate each case and bill accordingly at the maximum rate.
 
 
Legal expense review will often ask, if counsel was heading to court to handle a day’s worth of case negotiations for various clients, why should each carrier have to pay a large charge for this travel? Granted, if this is a special trip, or a trip to another jurisdiction especially for your case, then the charge may be justified. But it is the job of the legal firm to handle their bills accordingly for each carrier or the charge will be reduced by the legal expense firm.
 
 
5.      Law firms should be able to justify ALL billing charges on each bill, and they have the obligation to keep proper records for each case and each task they do for each carrier.
There has been a lot of backlash from legal firms about the billing reductions. One attorney said he had to “fire” his client, because their legal bills were getting reduced so much the firm was losing money by handling the case. Obviously, that is counter productive and not in the best interests of the employer, so make sure to rein in the legal bill reviewers so they do not go overboard.
 
 
Due to carrier demands, and the abundance of files for firms to handle, negotiating power is in the carrier's hands. The consensus is, if a firm does not want to reduce fees to what the carrier wants, the carrier will find a firm who will do what they want. This is creating a bad environment for attorneys since most of them have longstanding relationships with certain carriers and adjusters. They do not want to lose the business, but they have no choice.
 
 
Of course there are some carriers who are trying to cut down legal expense as much as possible, sometimes unfairly. By doing this they are trying to take advantage of legal firms to get as much out of them for as little cost as possible. Larger firms can sometimes absorb this possible loss just to keep the carrier’s business. But smaller firms that cannot compete are losing a lot of business.
 
 
In most cases, the relationship between carrier and legal firm can work if they negotiate an hourly rate, and the associated tasks that go along with it. Tasks need to be clearly defined so no confusion comes when the bill arrives. The legal expense review company should also be informed of certain fees and tasks as negotiated between the carrier and firm so no issues arise. The goal should be to maintain that solid relationship between counsel and carrier, and the associated fees that go along with the handling of a litigated case to overall settlement.(WCxKit)
 
 
Legal expense review companies can be a great asset in reducing your overall legal costs when handling litigated files. But the hourly rates and the tasks that go along with it need to be clearly defined between the carrier and the legal firm. Any confusion on any of these issues can lead to a breakdown of the relationship, which benefits no one. By being proactive and establishing clear expectations at the beginning of the lawsuit, both parties can deal fairly with each other. To get good service, you have to pay a fair price.

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. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.
 

Our WC Book: www.WCManual.com
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Alaska Comp Board Assesses Penalty to Employer Not Carrying Coverage

 
The Alaska Workers Compensation Board assessed a $1.5 million civil penalty to Ultimate Tours, LLC, and Godwin Glacier Tours, LLC, for its reported failure to carry workers compensation insurance, misclassifying employees as independent contractors and violating stop-work orders.
 
 
"Ultimate Tours/Godwin Glacier Tours operates seasonally in the Seward area," said Mike Monagle, director of the workers compensation division.(WCxKit)
 
 
"Division of Workers Compensation staff repeatedly attempted to resolve the situation and bring the employer into compliance with state law, but for six seasons failed to reach an agreement with this employer," Monagle added.
 
 
The tour company, which operates glacier dog sled tours, glacier hikes, and helicopter flight seeing on the Kenai Peninsula, was in violation of stop-work orders for failure to insure its employees for 341 days, from Nov. 7, 2005 to Aug. 30, 2010. Five injuries have been reported to the division of workers compensation.
 
 
The tour company was assessed the penalty on 1,215 uninsured employee work days and additional penalties for knowingly misclassifying employees to evade workers compensation premiums.
 
 
Alaska law requires all employers to carry workers compensation insurance.
 
 
Employers who fail to comply with the law may be liable for civil penalties up to $1,000 per uninsured employee per workday.
 
 
Employers, who violate a stop work order issued by the Alaska Workers Compensation Board or the division of workers compensation, may be liable for an additional civil penalty of $1,000 for each day the employer is in violation of the stop work order.(WCxKit)
 
 
Officials also point out that employers who knowingly misclassify employees for the purpose of evading payment of workers comp premiums are not only subject to civil penalties for failure to insure, but may also be subject to criminal penalties for fraud.

 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Labor Department Marks 10th Anniversary of Act to Help Workers

 
The U.S. Department of Labor recently marked the 10th anniversary of administering the Energy Employees Occupational Illness Compensation Program Act.
 
 
As the DOL points out, the EEOICPA provides compensation and medical benefits to eligible workers and their survivors who became ill as a result of working in the nuclear weapons industry. The department has administered Part B of the EEOICPA since the program's inception in 2001, and was charged with the implementation of Part E, created by an amendment to the EEOICPA, Oct. 28, 2004. To date, the department has paid more than $7.2 billion in compensation and medical benefits to over 71,400 eligible individuals.(WCxKit)
 
 
"Since the EEOICPA's inception, the Labor Department has been committed to fulfilling the promises made to Cold War veterans," said Rachel Leiton, director of the Division of Energy Employees Occupational Illness Compensation, which administers the EEOICPA. "I am very proud of the hard work and dedication of our employees. The benefits paid to eligible workers and their families have far exceeded the original expectations from the time the program began. I encourage all individuals who may be entitled to benefits to contact us toll-free at (866) 888-3322 and file a claim."
 
 
Part B of the EEOICPA covers current or former workers who have been diagnosed with cancers, beryllium disease or silicosis, and whose illness was caused by exposure to radiation, beryllium or silica while working directly for the U.S. Department of Energy, DOE contractors or subcontractors, designated Atomic Weapons Employers or beryllium vendors.
 
 
The Labor Department has approved 51,576 claims under Part B of the EEOICPA. Part E of the EEOICPA provides federal compensation and medical benefits to DOE contractors and subcontractors who worked at covered DOE facilities and sustained an illness as a result of exposure to toxic substances. The Part E benefit payout has exceeded $2.3 billion.(WCxKit)
 
 
The EEOICPA also provides additional compensation for uranium workers who worked at facilities covered by the Radiation Exposure Compensation Act, which is administered by the U.S. Department of Justice. Additionally, certain survivors of nuclear weapons industry workers are eligible for benefits under Parts B and E. To assist individuals regardless of where they live, the department has 11 stationary resource centers located throughout the country. These resource centers provide an initial point-of-contact for individuals interested in filing a claim under the EEOICPA, and staff provide both in-person and telephone-based assistance.

 
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.

 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

Cancer Still Not Covered for World Trade Center Responders

 
After the New York City World Trade Centers fell, images of responders rushing in unprotected to help victims of the terrorist attach Sept. 11, 2001, are burned into the memories of every American.
 
 
Discussion loomed immediately about toxins in the air from particulate matter, burning materials, airplane fuel and more. Of course there was nothing victims could do to protect themselves and first responders, in a rush to help as quickly as possible, did not stop to assess the danger they put themselves in.
 
 
Now, a National Institute for Occupational Safety and Health (NIOSH) report indicates there is not enough evidence to link the collapse of the World Trade Center (WTC) towers to cancer in responders and survivors. The study means those groups will not be able to collect federal money for treatment or compensation
 
 
However, the report also does not indicate evidence of the absence of a causal association. And another review is scheduled for early 2012.
 
 
Under the James Zadroga 9/11 Health and Compensation Act of 2010, there must be periodic reviews of scientific and medical evidence. If a causal association were established, recovery workers and others with cancer diagnoses could be compensable.
 
 
The Zadroga Act provides funds for a specific list of illnesses, such as asthma and other respiratory diseases linked to the 911 attacks. Cancer could be included if a link was found.
 
 
The initial review was based on three information sources, according to NIOSH:

1.     
A systematic search of peer-reviewed findings on exposure and cancer resulting from the terrorist attacks that have been published in the scientific and medical literature between Sept. 11, 2001, and July 1, 2011.

2.     
Findings and recommendations related to cancer from the WTC Clinical Centers of Excellence and Data Centers, the WTC Health Registry at the New York City Department of Health and Mental Hygiene, and the New York State Department of Health.

3.     
Information from the public solicited through requests for information published in the Federal Register earlier this year.
 
 
The report said there was little evidence because few published research studies on the attack mention cancer and only a small number of those are peer-reviewed. Further, cancer is a common disease, making linkage difficult, the report said. (WCxKit)
 
 

Author Rebecca Shafer
, JD, President of Amaxx Risks 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. See www.LowerWC.com for more information. Contact: RShafer@ReduceYourWorkersComp.com.
 
 
 
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
 
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.

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