Defense In Depth On Work Comp Claims: The Employer’s Role

“Defense in depth” is a principal from conflict theory which promotes using several defenses in coordination instead of seeing them as separate defenses to be used one at a time. Sometimes, the phrase “mutually supporting” is used.

 

In work comp hearings, defense issues often are identified and documented but they are not processed so that the use in hearings is enhanced. In addition an investigation will be halted when “enough” evidence is obtained or, worse, when one defense has so much evidence that an investigation will be halted before additional issues are located.

 

 

In Hearings Nearly All Doubts Are Resolved in Favor of Injured Worker

 

In hearings such as work comp, where nearly all doubts are resolved in favor of the worker, it is hard to imagine that the defense could grow so comfortable as to settle for less than a reasonable maximum of information, but comp is a bulk process with highly repetitious fact patterns, leading to fact and law burn-out.

 

What can the employer do about all of this? The role of the employer in many states has been minimized without much complaint by carriers. However, the employer is the first and best source of information.

 

The sticking point, where useful information is stopped in its tracks, is the employer report to the carrier and/or comp board of the alleged workers comp incident. That is nearly always due to the fact that the forms given to employers have many questions but little space to write detailed explanations and itemize a list of objections to the claim. An employer who is given only one line or less to “describe the incident” may think that all claims can be fully described in twenty words or less, or that it’s a rule of the comp board that twenty words are the most that will be tolerated.

 

 

 

“See Attached” Is The Best Answer, “Unknown” is the Worst

 

 

The employer can enhance its reporting skills by simply inserting “see attached” as the answer to complex questions. Your correspondent has seen claims won where the employer attached a five page explanation, with lists of names of witnesses and sources of information. This in turn, led to a carrier putting a retired police detective to perform further investigation and search for evidence. In one notable case, the detailed explanation by an employer actually led to the carrier obtaining a copy of a confession to murder for reasons completely unrelated to the employer’s work, resulting in a dismissal of a death claim. (The claim was paid by a different employer, whose employee had a grudge and knew the victim from that job.)

 

Detailed reporting by employers, using those “see attached” documents, leads to a far more complex presentation and, therefore, to mutually supporting issues.

 

“See attached” is the best of answers. What is the worst? “Unknown”!!! Yet it is the most common answer which appears on employer reports.

 

Nothing is truly unknown, but an employer can say that after a full investigation no facts emerged which could corroborate the claim.

 

 

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

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

 

NY Decision May Lower Construction & Transportation Workers Comp Costs

A case still being argued in NY’s highest court (Auqui v. Seven Thirty One, Ltd. Partnership.) may very well result in lower negligence costs for high risk employers, such as in construction and transportation, where an injury results in both a comp claim and a negligence suit.

 

 

Workers Compensation Provided Money During Negligence Claim

 

In the past, it was taken for granted that the comp claim provided a fast, albeit small, stream of wage loss money and medical treatment, both essential to “financing” a negligence claim, which would take years to resolve. Furthermore, until a few years ago, the worker would always be found to have a continuing, permanent disability – which could be used to bargain for a larger negligence settlement.

 

But in recent years, the sheer volume in NY of permanent disability findings in comp were so expensive, and so out of line with other states, that a series of changes were made to halt the rubber-stamp “permanent disabilities”.

 

 

New Case Changed Influence of Work Comp on Negligence Settlement

 

Recently, the inevitable happened. A food truck delivery worker has hit by plywood which blew off a construction site. The worker filed a comp claim and then sued the premises under construction. But, long before serious settlement talks could begin on the negligence case, the Workers’ Compensation Board found that the worker no longer had a continuing disability. That, of course, completely changed the expected outcome.

 

What followed was a long series of motions in the higher courts on the issue of whether the Board’s findings could be used as determinative in the negligence claim. The last finding by the highest court was that the Board’s determination was indeed binding under “collateral estoppel”.

 

Currently, there are motions pending to reargue the finding, with nine outside parties (mostly unions and attorney interest groups) filing “amicus curiae” briefs. This means that although they are not part of the claim they have great interests in the outcome and are offered a chance to submit an argument.

 

 

Transportation & Construction Could See Lower Workers Comp Costs

 

So, what does this mean for employers in transportation and construction? It means that the number and duration of their compensation claims can be expected to shrink significantly. The new Board procedures and guidelines, if upheld, will place a large downside on keeping a comp claim open, and running the risk of having the rug pulled out as the time for settlement approaches.

 

The seriousness of pending decisions can be measured by the presence of amicus briefs, which, overall, are rather rare – especially in comp. So employers should be aware that something is in the works which could very well lower comp costs.

 

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2013 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

NY, Affordable Health Care, Work Comp and Employers

Since WWII, work comp has had growing complexity of interactions with other laws and plans offering medical benefits. For the most part, the interactions were behind the scenes and left to insurance professionals. All of this seems to have changed.

 

 

Major Law Changes Have Significant Impact On Employers

 

In 1982, a major change in the comp laws occurred but was little noticed for over five years. Medicare was given the right to file a state workers compensation claim, on its own behalf, if it felt it was paying medical for what should be a comp claim. As computer databases on all state workers comp claims grew, the law suddenly had very large, sharp teeth.

 

But now, the Affordable Care provisions are also added. Already, it can be predicted that many employees would rather “protect” themselves by filing comp claims and put as much of their medical as possible under a state law which seems far friendlier than federal benefits.

 

But how does this affect employers?

 

 

Federal Computers Detect Merest Hint of Workers Compensation

 

Consider the powerful federal computers used to oversee health benefits. They are already in place to detect the merest hint of a workers compensation claim which could transfer liability from the federal government to a private employer. They have, in fact, the largest medical cost control program in history already in place.

 

What happens if that computer notices that an employee who had three minor back claims over a period of years is suddenly requiring back surgery? It is entirely predictable that a claim for medical reimbursement and transfer of future liability will be made. But how and where will this be resolved? Maybe at the state comp board? Or maybe in a federal agency or court.

 

However it will be handled, it will be neither quick, cheap or largely favorable to employers. And what will it do to experience modifiers?

 

The problems only begin there. The last employer, or carrier, will seek to apportion with other prior claims. And New York has recently abolished Sect. 25-a, a part of the comp law that paid old reopened claims out of a special fund, instead of placing it on the former employer and carrier.

 

 

Today’s Technology Can Work Against Employers

 

In prior decades, before computers and federal involvement, claim material was paper and, if old, was stored in warehouses. Most claims people preferred to forget the past rather than dig it up with great effort and expense. But computers don’t treat information in such a manner. Past claims will never be forgotten. This is particularly true if a large powerful party gains an advantage from a near perfect memory.

 

Few people not involved in day to day comp operations are aware that the sheer bulk of records compelled a “close is good enough” approach. The comp systems operated, ironically, because most people, workers included, were not determined to obtain the last nickle on every claim, especially on smaller claims.

 

But a computer has no shame and never tires. The rules of engagement are going to be fierce.

 

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2013 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

Control The Cost Of Your Workers Compensation Legal Bills

Self-insured employers frequently are faced with the challenge of knowing whether or not they are getting good value for their dollars when paying their legal bills. Self-insured employers have a smaller claim volume than the standard workers’ compensation insurance company, and hence have a smaller need for defense attorneys. However, as legal fees can be a significant portion of the cost of litigated claims, it is important for self-insured employers to properly manage their legal cost.

 

 

Set of Billing Guidelines Needs To Be Established

 

Prior to the assignment of a workers’ compensation claim to a defense firm, the self-insured employer needs to establish with the defense firm a set of billing guidelines for the legal service bills. Criteria that should be included in the billing guideline include:

 

• The stated hourly rates for senior partners, partners, associates and paralegals

• Secretarial support time should not be billed

• Any changes in hourly rates will apply only to new cases, with no hourly rate changes on pending case

• All activity and time spent on the file is to be itemized and billed individually, with no bulk time or block billing for multiple activities

• All billing will be increments of one-tenth (0.1) hours

• There will be no re-assignment of the principal attorney on the case without the self-insured employer’s prior agreement

• All discovery issues/items are to be pre-approved by the self-insured employer

• The frequency of service bills, whether monthly, quarterly or semi-annually should be agreed to

• Internal consultations, training of associates and paralegals, and inter-office conferencing should not be charged

• Billing for legal research will not be considered unless it is outside of the normal parameters of the expertise of the defense attorney

 

Control Additional Expenses

 

Often overlooked are additional legal expenses. Criteria for expenses should be established prior to the assignment of the workers’ compensation claim to the defense attorney. Common criteria for legal expenses include:

 

• All travel outside of the local area should be pre-approved by the self-insured employer

 

• Air fare will be at the coach rate after pre-approval

 

• Motel stays should be in the mid-price range

 

• Travel time should be capped (8 hours per day)

 

• Automobile mileage will be reimbursed at the Internal Revenue Service current business mileage rate

 

• Telephone expenses should be not be charged

 

• Photocopy charges per page should be agreed to ($.10 per page is common) and should be itemized

 

• FedEx, UPS and USPS delivery charges will be paid, if not due to inefficiencies in the defense attorney’s office

 

• Postage to be paid only if higher than the single stamp rate and should be itemized

 

• Subpoena service should be billed at cost

 

• Any unusual expense should be pre-approved by the self-insured employer

 

 

Non-Reimbursable Defense Costs

 

Sometimes defense attorneys get creative in their billing of time and expenses. The following cost should not be reimbursed to defense counsel:

• Any overhead cost of doing business (overhead cost are already included in the attorney’s hourly rate)

o Office rent, utilities, storage of files

o Secretarial support

 File/case creation

 Bill preparation

 Phone messages

o Computer usage / fax machine usage

• Mark-ups on bills submitted by vendors

• Equipment rentals

By establishing with defense counsel prior to case assignment what is acceptable billing behavior, the self-insured employer avoids unhappy surprises and hassles with the legal bills. The legal billing guidelines should be incorporated into your overall litigation management program.

 

 

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 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, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact:RShafer@ReduceYourWorkersComp.com.

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2013 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

NY Work Comp and Attorney Contingent Fees – Getting It Backwards

Attorney fees for disability have had a long, troubled history In the USA. In the late 19th century, lawsuits for disability began to surge, especially among poorer workers in dangerous employments. The ethical rules at the time did not allow for contingent fees, but how else could a poor, recent immigrant, obtain a lawyer to handle a disability lawsuit?

 

When employer liability laws emerged in the decades after the Civil War, the worker received the benefit of having three traditional defenses lifted, i.e., contributory negligence, assumption of the risk and the fellow servant rule. With those barriers gone, many lawyers in northeastern cities jumped at the chance of representing many new arrivals.

 

 

Volume of Potential Claims Led To Ambulance Chasing

 

But the sheer volume of potential claims led to ambulance chasing and fast, cheap settlements. By the early years of the 20th century, the situation had grown so bad that court calendars in major cities were clogged with dubious negligence claims (the worthy claims were becoming hidden under them) and an industry of locating and steering workers to attorneys, themselves members of recently arrived group, was quickly growing.

 

The response was workers compensation laws, enacted not to make benefits easier, but to restrict the tsunami of bad claims. In the early laws, and still on the books, were regulation of attorney fees, which required approval of the comp board in order to be collected. Another feature in some state laws was the eyebrow raising requirement that attorney fees were in no case to be contingent on a percentage of the worker’s recovery. That meant the fee system that propped up the employer liability laws was to be halted.

 

Clarence W. Hobbs, first president of the National Council of Workmen’s Compensation (NCCI) and founder of the New York Compensation Insurance Rating Board was blunt in his 1939 book on the early history of comp. The most beneficial change brought by the comp laws was the abolition of contingency fees which, he felt, were solely for the benefit of a “noisome horde of ambulance chasers”.

 

 

Today Work Comp Still Dominated By Contingency Fees

 

So what happened? Today, work comp is dominated by contingency fees. In NY, for example, the comp law continues to have a provision barring percentage contingent recovery, but allows no other fee system in practice. For large final settlements, the fees awarded are 10-15% of the settlement. No fees are ever permitted unless there is a new award, and the fee awarded is always a percentage of the new money awarded.

 

How did this reversal, without a change in the laws, come about? There appears to have been no conscious intellectual struggle with the law. The change came about solely because contingent fees seemed to be so logical. The entire negligence system, all but universally using contingent fees, couldn’t be wrong, could it? What of the comp law sections barring such fees? Amazingly, it doesn’t appear that anyone was aware of the sections.

 

What sort of fees did the drafters have in mind, if not percentage contingent? It seems that a fixed modest fee for all attorney appearances was what was anticipated. How did that quickly drift into contingency? It seems that a few decades after the comp laws were passed, the public perception that disability and lawyers were firmly linked by negligence contingency, even if the comp law was never intended to be a mini-negligence system.”Negligence envy” had conquered the comp system.

 

 

Follow The Money To Know What Good & What Ill You Will See

 

All the attempts at reforming comp systems have avoided colliding with the dinosaur at the conference table. A former chief judge of New York’s highest court defended comp contingent fees with the words, “Lawyers should not get more if their clients get less”, but failed to explain how getting more disability was getting less of a result. Effective return to work programs have been the primary victim of that view.

 

If you know how the lawyers are paid, you will know, well in advance, what good and what ill you will see.

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

©2013 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

The Deadly Symmetry In Work Comp. A Stick With Two Short Ends

 

There is a decades old ongoing discussion in work comp: is it the employer or employee who benefits or loses? The answer: both.

 

 

Neither Employer of Employee Are “Winners” in Work Comp

 

Neither the employer (who, ultimately, pays for everything) nor the employee (who has substantial net wage loss in nearly every claim) can be said to “win”, no matter what the outcome. “Winning”, to most people, means emerging undamaged, but the net losses in comp sometimes remain unknown to the parties until years later.

 

The most perfidious feature of work comp laws is the “substantial evidence” rule, which permits a comp board ruling to be unreviewable on questions of fact and medical opinion if it is supported by “substantial evidence”, which, in fact, is defined as “a scintilla of evidence”, which is hardly substantial at all.

 

So what? Well, it means that a typical comp system can make inconsistent rulings on a large group of claims, but each will be based on “substantial evidence” even though the rulings in bulk are contradictory. Comp systems have noticed this since the beginning, and so have the lowliest ALJs, who quickly realize that they are shielded from review, except on questions of law, not fact.  So, no matter who might win a particular claim, all can become the next victim of “substantial evidence”.

 

 

Case Law Decisions Lead to Predictable Outcomes Most of the Time

 

But “a scintilla of evidence” is not a rule which demands the best of any system. It leads to decisions which erode into predictable outcomes most of the time, warranted or not, punctuated by irrational outcomes for no apparent reasons. One NY comp case, in the 1980s, was so inexplicable that it made a list of outrageous decisions which was published in the Readers’ Digest.

 

The comp claim involved a high school teacher who was so “stressed” by work that he shot and killed the principal. And then went on to win a max rate “stress claim”. This was upheld by the highest court in NY based on “substantial evidence”. The principal’s widow, in turn, had no problem winning a death claim, also based on – “substantial evidence”.

 

Therefore, neither party got the “short end” since both “won”.

 

If the result of a claim is only measured by who got money or who did not, the real “winners” and “losers” can never be identified. In the above high school case, what was the true effect on workplace morale? Was it ever considered?  What was the successor principal faced with in terms of maintaining discipline and integrity in the school system?

 

And what did the attorneys representing workers do with that decision? For years it was routinely cited as authority for “all doubts are resolved in the worker’s favor”, although what doubt was in that claim is difficult to imagine.

 

The teacher later gave an interview to a newspaper, after his win in the highest court, complaining of the “stress” the litigation had subjected him to.

 

So who wins every comp claim? Everyone but the employer and employee.

 

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net  

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.  

 

©2013 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

NY Workers Comp Board Decision On Producing Prior Medical Records

A recent Board decision, not a court decision, ruled that when a worker provides the employer, or carrier, with a HIPAA for prior medical records that is compliance with an order that he provide the records himself.

 

There is nothing new about such a decision; except that it has long been forgotten what the rules are regarding subpoenas, directives by a judge, or a HIPAA release. But back to basics.

 

 

Basics of Medical Records Laws

 

The comp law does not provide for ALJ’s “orders”. Documents are produced buy a non-judicial subpoena, under WCL Sect 119. But a subpoena for medical records must be accompanied by a HIPAA release signed by the claimant.

 

Technically, once the carrier obtains the HIPAA, a subpoena may not be necessary, although many medical record offices are instructed to release nothing to a court or work comp board without a subpoena.

 

But there is no question that once a claimant provides the carrier with the HIPAA, the carrier has no cause to complain about having to issue the subpoena. Why? Again, there is no provision for “ordering” a claimant to produce any records.

 

In 1985, a claimant refused to cooperate with a subpoena to produce his IRS records for the years following his accident in “Morgen v CBS, Inc”. The Board closed the claim until the worker signed a release or produced the records himself. The Court upheld the Board’s approach, although the Board could have adjourned the claim until the carrier made a motion to enforce the subpoena in NY Supreme Court.

 

 

 

Casual Rules About Producing Records Are More Than Casual

 

The point of this little discussion is that the casual rules about producing records at the WCB are more than casual. They are not rules at all. The carrier, here, did its job, up to a point, but then failed to see that a claimant providing it with a HIPAA was compliance. Since the carrier wanted the records, it had the burden of issuing the subpoena.

 

The Board and court in the Morgen case ordered him to produce his own records, or furnish a release, only because he had already ignored a valid subpoena.

 

The subpoena rules will have to be complied with scrupulously under new federal regulations regarding all medical records.

 

 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net  

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.  

 

©2013 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

Workers Comp Insurance Idiots

The above title refers, according to a Google search, to a common phrase used by persons complaining about the handling of their claims.

 

Let’s put that to a test.

 

One person, several years ago, reported that she had successfully returned to work a year before. A favorable outcome? Not really, according to the worker.

 

The return to work, it was related, was not due to the wishes of the worker, nor the advice of her doctor. Instead, it was caused by “the work comp insurance idiots”.

 

The complaining worker went on to say that she was “glad to be back to work”. (After a year’s absence)

 

What sense can we possibly make of this? All the goals of the work comp system have been met by “idiots”. Was there any statement of gratitude by the worker? No, but she was glad to be back to work.

 

The person was apparently single. It would be interesting to hear what a spouse might have said about the “work comp idiots”.

 

The lesson seems to be that subconsciously the workers have adopted the negligence claim paradigm. The best outcome for disability is a large settlement figure, followed by a near miraculous cure shortly after the check clears.

 

But the worker above coped with the mishandling of her disability claim, even to the point of being “glad to be back to work”.

 

Everyone in the comp process knows that they too are one of the “idiots”, especially the workers’ lawyers who, perhaps not surprisingly, get the brunt of most of these comments. Notice, no one in the above received credit. Why should the worker thank the treating doctor and her lawyer for failing to stand up to the other “idiots”?

 

From one idiot to another, let us all push on and do our best to produce such failures.

 

 
 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

 

©2012 Amaxx Risk Solutions, Inc. 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 about workers comp issues.

Medical – Legal Conference Can Be Right Solution in Complex Work Comp Cases

 

Plaintiff’s Attorney Often Makes Claim Seem Serious
 
Medical care for an injured employee can be complicated.  When the injured employee is represented by an attorney, the plaintiff’s attorney often tries to make the seriousness of the injury to appear to be greater than it actually is.  Defense attorneys who have handled many similar claims often have a fairly good understanding of the medical terminology and what is meant by various medical reports and are not fooled by the plaintiff attorney overstating the nature and extent of the injury.  [WCx]
 
 
Defense Attorney & Doctor Need Conference to Get on Same Page
 
However, there are situations where the injury to the employee is unique, and the seriousness and/or complexity of the injury is not fully understood by either the work comp claims adjuster or by the defense attorney.  It is in situations of this nature that the need for a conference between the defense attorney and the doctor is needed.  These medical-legal conferences are normally held during the discovery phase of a work comp claim in litigation, but can be held at any time. 
 
Med-legal conferences can occur by telephone, but more often the defense attorney will reserve an appointment with the medical provider to review and discuss the medical treatment an injured employee is incurring.  The med-legal conference allows the defense attorney to better understand the injured employee’s medical care.  The defense attorney will have the opportunity to ask questions about the medical reports and will hence be able to decipher and understand the medical reports better. 
 
 
Helps to Understand Issues and Will Make Settlement Negotiation Easier
 
The med-legal conference puts the nature of the injury, the extent of the injury and the future medical treatment needed into plain English that the defense attorney will be able to understand and to convey, if necessary, at a Board hearing or in a full-blown trial.  This makes the negotiation of any settlement on the work comp claim more accurate and feasible.
 
The med-legal conference also will assist the defense attorney to understand the chronological sequence of the injury, the medical treatment and the recovery.  The defense attorney will also better understand the reasonableness of the previously provided care and the reasonableness of the proposed future medical care.
 
 
Real Claim Example
 
To better understand the use of a med-legal conference, consider the following real claim:
 
The employee was removing a motor from a dump truck.  The employee fastened a chain around it and lifted it with a fork of the forklift (no safety program at this employer!).  When the forklift moved, the motor dangling on a chain, swung around and struck the employee in the top of the back, breaking the right clavicle with a compound fracture.
 
After four months of treatment, the medical provider placed the employee at MMI.  The work comp adjuster paid the PPD rating and thought the claim was done.  Two months later the claimant calls the doctor and is in severe pain. The doctor does an x-ray and the clavicle, which had been healed in the prior x-ray before the employee was placed at MMI had developed a non-union along the fracture lines. The plaintiff attorney filed for a “worsening of condition” with a request for additional medical treatment, additional temporary total disability and was pursuing a higher PPD rating.
 
The defense attorney met with the doctor following the resumption of medical care to discuss the cause of the non-union and how it could have developed after the employee was released from care.  The doctor explained that within a reasonable degree of medical certainty the failure of the previous union of the bones had to be caused by the employee suffering an aggravation at his new employer.  The doctor explained there was diagnostic evidence of an aggravation.  The aggravation broke the chain of causation resulting in the employer at the time of the initial injury no longer being responsible for the claimant’s medical condition.
 
 
Cost of Savings Can Far Outweigh Cost of Conference
 
The cost of a med-legal conference is the cost of the doctor’s time and the cost of the defense attorney’s time.  The med-legal conference will often answer the questions the defense attorney has in regards to the medical treatment and the status of the injured employee, eliminating the need for a formal deposition and the associated cost. [WCx]
 
It is often worthwhile to pay for the time the doctor and the defense lawyer spend reviewing the medical care, the causes of medical issues and the proper resolution of the medical issues.  Med-legal conferences should be considered any time the medical issues are complex and the understanding of the employee’s medical condition is not clear.
 
 

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 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, Workers Compensation Management Program: Reduce Costs 20% to 50%. Contact: RShafer@ReduceYourWorkersComp.com.

 

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher.  www.reduceyourworkerscomp.com Contact mstack@reduceyourworkerscomp.com

 


WORKERS COMP MANAGEMENT MANUAL:  www.WCManual.com

VIEW SAMPLES PAGES

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

 

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.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

The Employers Secret to Workers Comp Defense Lies in these Three Quotes

 

Three quotations are all an employer needs to understand handling difficult comp claims. Two are actual quotes, but the third – and best – was made up and appeared in a 1917 newspaper story.
 
Three Quotes:
 
1. “Justice is truth in action”, written by Benjamin Disraeli in a novel.
 
2. “Justice delayed is justice denied”, an old legal maxim.
 
3. “Git thar the fustest with the mostest”, supposedly, but actually never, said by Confederate Gen. Nathan Bedford Forrest. Winston Churchill, however, called it the most delightful summary of military tactics ever spoken
 
So, to get the best justice, an employer needs “truth”. To get “truth” too late is to get no justice at all.  Therefore, get truth as early as possible and be “the fustest with the mostest”. Even if  Forrest never said it, Churchill endorsed it.
 
 
Be the First with the Most
 
But how does an employer be the first with the most? The only way that can happen is for an employer to be prepared to locate, retrieve and forward a portion of the large amount of information available to an employer. Even if an employer does not possess actual documents, an employer has clues as to where those documents might be.
 
 
Write Outline Summary, Attach to First Report of Injury
 
The best advice for an employer is to write a one, possibly two, page outline of what documents might contain information about past, relevant events, who might have them, and where they might be, even if not with the employer. Forward it to the carrier, preferably attached to the First Report Of Injury. Then, follow up with a call to make sure that the outline has been received, noticed, read and acted upon.
 
Attaching the outline to a First Report of Injury insures that the information will be “the first”, but will it be “the most”? Almost certainly, it will. Initial claims handling is mostly a matter of taking care of the first medical reports and bills. Collecting the information needed for long term results waits. And whatever waits cannot be in action and is, therefore, delayed. And, finally, will never be the first or the most.
 
 
 

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net

 


WORKERS COMP MANAGEMENT MANUAL:  www.WCManual.com
MODIFIED DUTY CALCULATOR:  www.LowerWC.com/transitional-duty-cost-calculator.php

 

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.

 

©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.

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