Look At The Big Picture In Litigated Work Comp Files

Litigation is bound to happen at some point in your work comp program.  It could be that a case that was once compensable is now no longer deemed compensable.  It could be that you received a petition for hearing out of the blue from a former employee.  You can be added to the litigation other parties are having over a different issue.  Litigation is bound to happen.

 

The legal case can present itself many ways.  Some could be a clear disputed injury date, and another could be as vague as an occupational exposure injury of which you are 1 of 15 named defendants.

 

 

“We Do Not Have Any Exposure” Is Not Accurate

 

The important thing to remember is to look at the big picture in the case.  The plaintiff feels that something they did while working for you lead to them being injured.  The response of “we do not have any exposure” is not accurate.  Even the wildest case has exposure of some sort, and it is key to not overlook the merits of the case no matter the allegation.

 

I see many examples of cases that started off as being nominal and later it turned out the employer was responsible for a sizeable sum of money contributed towards the settlement.  This is due to the attorney/adjuster/employer not considering the case as a whole.  What starts off as an elbow injury can turn in to a shoulder or neck claim that could be post-surgical in nature, depending on how the injury occurred and the medical evidence.  With this type of claim, all of the sudden you have a larger case on your hands.

 

 

Petition Can Be Worded To Broaden The Scope Of Injury

 

Plaintiff attorneys also know how to word a petition.  If you look closely, rarely are they narrow in scope.  Words like “general” or “repetitive” or “occupational exposure” hold different weight in different jurisdictions.  The petition is worded this way in order to broaden the scope of the injury.  Instead of saying “left elbow” it may say “left upper extremity.”  That alone is a great example of the plaintiff counsel using wording to help their own case.

 

Any surgical case can have a large exposure in both in the medical and wage loss fields.  Certain states have Permanent Partial Disability (PPD) rating, and just this rating could mean the injured worker is entitled to certain ongoing future benefits whether they work at your factory or not.

 

Another area to consider is the potential lien exposure.  Not just from Medicare or Medicaid, but from other health insurance providers as well such as Blue Cross/Blue Shield, United Healthcare, and so on.  They will add themselves to the suit, and their lien interests have to be considered towards a settlement.

 

 

Choose Legal Council That Is Well Versed In Work Comp

 

Adjusters are trained to reserve cases on overall exposure and need to know early on in the litigation process if you have no intentions of returning a worker back to their job.  If you decide on this aspect 14 months later, you can expect a reserve increase to follow.

 

In order to settle cases on a timely basis, you need to have legal counsel that is well-versed in work comp.  They need to have a relationship with the Judges, plaintiff attorneys, doctors, etc. It is very important to choose counsel based on a referral or recommendation.  The attorney should know your factory, the layout, and the jobs involved.  It is only to your advantage to develop a personal relationship with your legal counsel.  The better they know you, the better they can handle your cases.

 

So keep in mind to look at the big picture in your litigated cases.  Look at it from the injured workers point of view and the motivation of the plaintiff counsel.  What are their next steps going to be, and how are they going to present their case?  If you can figure out the answers to those questions, you will end up resolving your litigation quicker, cheaper, and more efficiently than your industry peers.

 

 

Author Michael Stack, Principal, COMPClub, Amaxx LLC. He is an expert in workers compensation cost containment systems and helps employers reduce their work comp costs by 20% to 50%.  He works as a consultant to large and mid-market clients, is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and founder of COMPClub, an exclusive member training program on workers compensation cost containment best practices. Through these platforms he is in the trenches on a monthly basis working together with clients to implement and define best practices, which allows him to continuously be at the forefront of innovation and thought leadership in workers’ compensation cost containment. Contact: mstack@reduceyourworkerscomp.com.

 

 

©2015 Amaxx LLC. All rights reserved under International Copyright Law.

 

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

 

Is Workers’ Compensation Destroying Social Security Disability?

Believe it or not, the title is based on actual allegations being made in DC. Members of congress have published a statement linking declining workers’ compensation costs to rising Social Security Disability Income costs (both being measured per hundred dollars of wages paid in the national workforce). The ominous conclusion is that savings in workers’ compensation costs must be transferred to the SSDI trust funds (which are now officially zero).

 

To prove the assertion, one can look at the gradual rise  in SSDI costs since 2000, vs the gradual decline in workers compensation costs. Convincing? Hardly.

 

Some additional information is needed:

 

First, the Social Security regulations have been relaxed somewhat to allow for more people to qualify for disability income. That alone could account for the rise in SSDI.

 

Second, workplaces are safer than ever. Plus, more workers’ compensation boards are using objective evidence standards to measure disability.

 

Workplace safety has been on the rise, steadily, for decades, due to an economy based less on brute force activity and more on machine assisted tasking. In addition, safety technology and medical advances have greatly reduced the frequency and length of lost time.

 

Several decades ago, workers’ compensation was operating under assumptions which can be traced to the state of the art practices in medicine prior to 1914. Tables which awarded benefits for arm and leg fractures were based on average outcomes in treatment in English factories from 1848-1888. Those tables were incorporated into US compensation laws in the early 20th century and only recently have been replaced by modern methods of evaluation.

 

So what is to be made of increases in SSDI vs the decreases in workers compensation? Declining costs of workers’ compensation, if due to enhanced safety, should not be characterized as a “race to the bottom”, as was suggested in the congressional paper. Nor should rising SSDI costs be seen as the result of cost transfer from workers’ compensation to Social Security – especially where the definitions of disability were intentionally changed to allow for more disability awards.

 

Your correspondent has handled Social Security disability claims since 1977 and workers’ compensation claims since 1975. The bulk of Social Security claims are for conditions with onset after age 50, mostly through gradual degeneration.  About 20% of all claims are for chronic mental illness. The change in standards was long advocated by state agencies bearing the bulk of responsibility for many disabled.

 

 

 

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

 

©2015 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.

 

 

Defense Attorney Often Over-Looked as Cost Containment Strategy

The proper selection of defense attorneys is one of the most important things a self-insured employer can do to control cost of the larger workers’ compensation claims.  It is also one of the most over-looked ways to control claim cost.  Whether you are new to the world of self-insurance, or just not happy with the results your defense attorneys are achieving, the selection of new defense attorneys should be carefully considered.  An in-depth outline of the criteria you consider important in the selection process should be prepared and used to select the defense attorney that will best suit your needs.

 

 

Criteria to Consider When Selecting Your Attorney

 

Size:

 

Law firms come in many different sizes.  There are the large national law firms with an office in various large cities.  There are large local firms that have dozens of attorneys all working from one office.  There are also intermediate and small law firms that specialize only in workers’ compensation defense.  There are the sole practitioners.

 

The best size for the self-insured employer is the law firm that can cover all of the self-insured employer’s locations with experienced attorneys.  For a single location self-insured employer, just about any size law firm that has adequate resources to cover all your workers’ compensation claims can be considered.

 

Some risk managers opt to have multiple defense firms, picking the best defense attorney(s) at two or more law firms to handle their claims.  They even it let be known that the defense attorney has competition for the self-insured employer’s business.

 

 

Experience:

 

The number of years of law practice is only one aspect of experience.  When considering a defense attorney, ask how much of the attorney’s time is spent in defending workers’ compensation claims.  An insurance defense attorney may spend most of his time on automobile insurance claims and workers’ compensation is a side line.

 

A good way to measure experience is to ask for a list of references.  The truly experienced workers’ compensation defense attorney will have a long list of references of self-insured employers and insurance companies she/he has worked for.  Companies in your industry that are on the list of references should be contacted for their thoughts on the expertise of the defense attorney(s) you are considering.

 

 

Knowledge:

 

The defense attorney you are considering should have an in-depth understanding of the workers’ compensation laws and the administrative regulations of the state. The attorney should know inside out the hearings/trial process which could decide the outcome of your workers’ compensation claims. The attorney should know how to maximize the local practices for mediation, arbitration and settlement negotiations.

 

Not only does the defense attorney need to have extensive knowledge of workers’ compensation, but also have knowledge of areas of the law that can overlap workers’ compensation – for example: subrogation, social security disability, vocational rehabilitation, products liability and automobile liability.

 

 

Philosophy:

 

It is often difficult to determine initially, but the self-insured employer needs to know if the defense attorney have a rigid way of doing things, or is willing to consider the recommendations of the client.  The defense attorney hired should be amendable to complying with your Litigation Management Best Practices.

 

 

Cost:

 

A discussion with the defense attorney about fees should be a part of your interview process. Not only do you need to know the hourly rate for the partners, but also the hourly rates for junior partners, paralegals and clerical staff.

 

You should confirm the defense attorney will delegate work to subordinates whenever possible to achieve cost-effectiveness without diminishing the quality of the defense.  If the senior partner is handling every aspect of the defense of a claim, you will pay a lot more than when the partner delegates appropriate task to the paralegal, for example.

 

Depending on your preferences, the defense attorney should bill for services in the time frame you select.  While some self-insured employers opt to get just one bill at the end of the claim, most employers are requesting monthly bills or quarterly bills to avoid billing surprises.

 

The defense counsel you select should be instructed on what leeway they have in incurring cost for experts, court reporters, etc.  Also, the attorney should know prior to starting work your parameters for the cost of legal research.

 

The defense attorney should understand prior to starting to work for your company that your company will consider legal fee audits.

 

 

Additional Considerations:

 

Before hiring any defense attorney to handle your workers’ compensation claims, an in-depth interview with the attorney should be completed.

 

The defense attorney you select should be willing to comply with your reporting requirements whether it is monthly reporting, quarterly reporting or reporting all significant events timely.

 

It is often a good indication of the attorney’s professionalism when the attorney is active in the local and state bar examinations.  If the attorney is on the bar association’s workers’ compensation committee, that is even better.

 

 

Properly Selecting An Attorney Is Worth the Time

 

The proper selection of new defense counsel will take some of your time, but the selection of the highly qualified defense attorney that best meshes with your needs will result in a reduction of the cost of your litigated claims.

 

 

 

Author Michael Stack, Principal, COMPClub, Amaxx LLC. He is co-author of Your Ultimate Guide To Mastering Workers Comp Costs, and founder of COMPClub an interactive training program teaching workers’ comp cost containment best practices.  Through this platform he is in the trenches on a monthly basis with risk managers, brokers, consultants, attorney’s, and adjusters teaching timeless workers’ comp cost containment strategies, as well as working with members to develop new tactics and systems to address the issues facing organizations today. This unique position allows him to continuously be at the forefront of innovation and thought leadership in workers’ compensation cost containment. Contact: mstack@reduceyourworkerscomp.com.

 

©2015 Amaxx LLC. All rights reserved under International Copyright Law.

 

Employers/Carriers/TPAs/Brokers/Vendors looking for additional information FREE resources for Workers Comp cost containment best practices are invited to access Amaxx Workers’ Comp Cost Containment Essentials training series

 

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

Is an Injured Employee’s Transitional Duty Work at a Charity Tax Deductible?

Some employers have their injured employees work transitional duty at a charitable organization until they fully recover. For example, the employer will send the employee to their local Goodwill or Humane Society, if they cannot accommodate the injured worker’s medical restrictions in house.

 
When this happens and the employer continues to pay the employee’s salary yet “donates” the employee’s time to the charity (rather than having the insurance company pay workers comp indemnity lost wages), are the wages a charitable donation?

 

 
IRS Section 162

 
United States tax law Section 162 of the Internal Revenue Code is found at 26 U.S.C. § 162. It concerns deductions for business expenses. According to the IRS, to be deductible, a business expense must be both ordinary and necessary. An ordinary expense is one that is common and accepted in the business. A necessary expense is one that is helpful and appropriate for the business. An expense does not have to be indispensable to be considered necessary.

 

 

The United States Supreme Court in the case of Welch v. Helvering found that the words “ordinary” and “necessary” have different meanings, both of which must be satisfied. The Supreme Court said that an “ordinary” expenseis customary or usual and of common or frequent occurrence in the taxpayer’s trade or business. A “necessary” expense is one that is appropriate and helpful for development of the business.

 
Section 162(a)(1) allow as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including “ a reasonable allowance for salaries or other compensation for personal services actually rendered.”

 
Section 162(b) excepts charitable contributions and gifts from business deductions. It states that: “No deduction shall be allowed under subsection (a) for any contribution or gift which would be allowable as a deduction under section 170 were it not for the percentage limitations, the dollar limitations, or the requirements as to the time of payment, set forth in such section.” (See classification issues, below).

 

 
Employee’s Donated Time to Charity

 
According to Ron Larrow, CPA, MST, the wages an employer pays an injured worker donating their time to charity are a deductible business expense under Section 162. They are ordinary and necessary expenses as paid or incurred in the trade or business of the taxpayer without limitation. There are limitations to deducting charitable expenses. These expenses need not be reclassified as “charitable” deductions.

 

 

The employer’s ability to deduct these expenses incurred for wages is NOT further restricted by assigning the injured workers to help in the community instead of allowing the worker to not report to any particular place (such as an idle room or taking work home) because suitable assignments are not currently available.

 

 

In other words, these expenses need not be qualified as a charitable deduction to get the business tax deduction.

 

 
Issues of Classification

 

One problem with classification as a charitable deduction versus an ordinary business expense is that charitable donations are limited to 10% of taxable income of a C corporation.

 

An individual taxpayer who includes on their individual income tax return their share of an S corporation, LLC or partnership business income and is allowed a deduction for specifically allocated deductions such as charitable deductions are limited to 50% of adjusted gross income (AGI) for charitable deduction in addition to the limitation on use of itemized deductions, which are only deducted after computing AGI on the first page of the individual tax return. Some states, like Connecticut, do not allow those deductions for individuals.

 

 

 

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

 

©2015 Amaxx LLC. 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.

 

Contradiction of Famous 100 Yr Old High Court Work Comp Decision

Five weeks ago, a decision was published dealing with a worker who had a severe hand injury (Barclay v. Techno Design, Inc.) The decision hinged on whether the injury met the statutory requirements for a “serious” injury, which required the loss of fingers (the worker had loss the use of the fingers). The court held it was not a serious injury, according to the statutory definition.

 

 

Contradiction of High Court Decision

 

What is interesting about this decision is that the very same issue was the subject of the very first NY work comp decision to be issued by NY’s highest court (the Court of Appeals) in 1915!! The decision, “Matter of Petrie”, said that loss of USE of a finger is the same as actual loss of the finger –directly contradicting this latest decision a century later. The new decision made no mention of “Matter of Petrie”.

 

Your correspondent was planning on writing a piece about that first decision, to honor its centennial, but this newest decision now compels it. “Matter of Petrie” is the most cited case in NY comp and created the principle of liberal interpretation of the statute. Yet, somehow, in recent years the source of that principle has been forgotten.

 

 

Basic Principles Should Not Be Taken For Granted

 

The point of this piece is to emphasize that basic principles should not be taken for granted. The most important ones will fall into a black hole unless we understand where and how the basics arose. The present story is not finished. The recent decision was issued by the Appellate Division, which is one level below the Court of Appeals, so the result may well change in the near future.

 

 

1930 Amendment to Permit Employer to Change Treating Doctor

 

What other principles have been forgotten which might be of use to employers? Well, in 1930 the statute was amended to permit the employer to change the treating doctor if it was in the best interest of the worker (WCL Sect 13-a(3)). This was changed to prevent workers from being swept up by dubious medical practices. This is still the law, although few today believe it – it too has been forgotten. But every employer should write, preserve and remember that section. It needs to be judiciously used.

 

 

Long Term Disability Liens

 

In 1986, long term disability plans tried to assert a lien on NY comp awards – but were rebuffed with the statement that no such lien existed. However, a search of the law and Board forms showed that such a lien was established in 1947 (Sect 25(4)(c)) and the Board had created forms (still in force in 1986) for long term disability carriers to use. (The forms were found in a manila folder which had not been opened since 1952.)

 

 

Location of Board Headquarters

 

The NY comp law also required that the Board headquarters be in Albany and be open six days a week. For almost 70 years the Board headquarters was in lower Manhattan and was NEVER open six days a week. (That has since been corrected.)

 

 

Remember These Sections Exist

 

Employers cannot be expected to be work comp historians. But they can make the effort to find out what details of the law benefit them and, gently, remind others that those sections still exist.

 

 

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

 

©2015 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.

 

 

Opt-Out In Workers Compensation Is Not A New Concept

Currently, there are proposals in some states for allowing workers to “opt out” of workers’ comp. Is this a radical departure from the past history of work comp? Hardly. In fact, for the first three decades of work comp the issue was “opting in”, not “opting out”.

 

 

When Comp Laws Began, Only Fraction of Work Force Had Mandatory Coverage

 

When the comp laws began to be passed at the end of the first decade of the 20th century, only a fraction of the work force had mandatory coverage under work comp laws. The office clerical workers, even in a “hazardous” employment (such as construction) did not have mandatory coverage, although in most states they had the right to voluntarily insist on comp coverage.

 

But even that was not new. In the era of “employers’ liability” laws, many states had voluntary work comp provisions. The employee had the right to be covered under voluntary work comp, but could always opt out if that was the wish. Thus, the employers’ liability policies already had the rudiments of coverage A and coverage B even before work comp laws were passed. And even before employers’ liability laws, voluntary comp policies were being sold to employers (as far back as the 1870’S!)

 

 

U.S. Has 60 Year History of Voluntary Workers Comp Coverage

 

So the US has already gone through an era of voluntary coverage, lasting nearly sixty years, and seen the advantages and disadvantages of that system. In New York, all workers of every business for profit had mandatory comp coverage after the late 1930s, ending the era of “opting in” (or out).

 

Surprisingly, the voluntary opt in/opt out comp laws remain on the books in certain states. In NY, municipal and county workers do not have mandatory comp coverage and many large unions (police, fire and teachers) have the members covered under disability insurance, preserving the right to sue for negligence.

 

If anyone would like to see a voluntary work comp law still in effect, see the New York Employers’ Liability Law, Sects. 9-15. However, at present no one seems to be covered by the sections.

 

 

We Don’t Have To Speculate What Opt-Out Looks Like

 

What would it be like for workers to opt out of comp? We don’t have to speculate. As previously mentioned, New York has over 100,000 well paid employees presently in a non-comp disability system. When injuries occur, and lawyers are needed, the usual comp lawyers are not asked to participate. Specialized law firms with union connections handle the claims, mostly through negotiation.

 

On 9/11, over 400 NY police and fire first responders were killed – and none had work comp coverage.

 

So, “opting out” has already been in place since the very beginning of comp and employers’ liability – and is still in place, even in states where you would least expect it.

 

 

 

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

 

©2015 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

 

SALES TO PAY FOR ACCIDENTS CALCULATOR:  http://reduceyourworkerscomp.com/sales-to-pay-for-accidents-calculator/

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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.

 

 

The Prohibited Acts Doctrine: Do Not Pass GO; Do Not Collect $200

monopoly.imagesThe Prohibited Acts Doctrine is used in workers’ compensation cases as a primary liability defense.  While this defense is something every claims management team should explore in workplace injuries, it is often difficult to employ successfully.

 

 

A Hypothetical

 

Consider the case of a truck driver.  As part of the hiring process, the employee underwent a three-day orientation and received a copy of the employer’s policy manual.  The manual included a number of statements concerning employee conduct, which included a prohibition of the “possession or consumption of alcoholic beverage while on company property, using company equipment, or traveling for work.”

 

Shortly after employment begins, the employee stopped in central Kentucky for a two-day layover.  On the first full day of his layover, the employee wanted to watch the big basketball game and was told by an attendant at the truck stop he was staying that there was a bar about one mile away that had the game on the television.  That afternoon he walked to the bar to watch the game and consumed “a few alcoholic drinks.”

 

While walking back to the truck stop, a car with bright lights approached the employee, slowed to a crawl, and then accelerated causing him to jump back.  The employee fell off the road into a ditch hitting the base of his spine.  A workers’ compensation action was initiated related to this incident and primary liability was denied based on the Prohibited Acts Doctrine.

 

Sounds like a clear-cut case for the defense, right?

 

 

Application of the Prohibited Acts Doctrine

 

As a general rule, an employer/insurer can successfully use the Prohibited Acts Doctrine “where an employer expressly prohibits the doing of a certain specific act, the disregard of which is not reasonably foreseeable to the employer, a violation thereof takes the employee outside the scope of his employment and injuries resulting therefrom are not compensable even though the act might be considered to be in furtherance of the employer’s business.”[1]  Whether the employee’s performance of a prohibited act takes the employee outside the sphere of the employment depends, in part, on the nature of the act or conduct, which is prohibited.  Not every safety rule limits the scope of employment.  The less hazardous the conduct prohibited by the safety rule, the more likely the rule proscribes conduct within the scope of employment.  The more routine or minor the prohibited conduct, the more foreseeable it is an employee will violate the rule.[2]

 

Based upon the general application of the Doctrine, an employer and insurer asserting this defense in the above hypothetical would likely not prevail.  Even if consuming alcohol is prohibited, courts will often look to other factors such as the nature of one’s employment, rules considering traveling employees and other factors such as the surface or condition that play a role in the subsequent injury.

 

 

Tips to Successfully Asserting a Defense

 

Cases involving a Prohibited Acts Doctrine are complex, fact dependent and vary in each jurisdiction.  Employees are also given some latitude by the courts when the defense is asserted.  It is important to remember the following considerations associated with the defense:

 

  1. Each case should be analyzed on its own merits and fact. Other factors that make it a difficult defense to assert successfully include obtaining information and testimony from eyewitnesses and specific documentation or prohibitions by an employer.  Just because something is prohibited does not mean one will be successful when asserting the defense.
  2. Practitioners should also note that the prohibited act must also be causally connected to the injury. An injured worker will likely succeed in their claim if the prohibited act plays little to no role in the injury.
  3. Cases involving a prohibited acts defense may also include other defenses such as possible intoxication or the foreseeable activities of traveling employees.

 

[1] Bartley v. C-H Riding Stables, Inc., 206 N.W.2d 660, 663, 26 W.C.D. 675, 678-80 (Minn. 1973)

[2] Otto v. Midwest of Cannon Falls, 59 W.C.D. 25, 35 (W.C.C.A. 1999)

 

 

 

Author Michael Stack, Principal of Amaxx Risk Solutions, Inc. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  As the senior editor of Amaxx’s publishing division, Michael is on the cutting edge of innovation and thought leadership in workers compensation cost containment. http://reduceyourworkerscomp.com/about/.  Contact: mstack@reduceyourworkerscomp.com.

 

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

 

SALES TO PAY FOR ACCIDENTS CALCULATOR:  http://reduceyourworkerscomp.com/sales-to-pay-for-accidents-calculator/

MODIFIED DUTY CALCULATOR:   http://reduceyourworkerscomp.com/transitional-duty-cost-calculators/

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, attorney, or qualified professional.

 

Know Your Rights In New York Comp Claim Hearings

Employer’s rights in NY comp claims? What might those be?

 

The NY Workers Comp Board­­ has, on its website an “Employer’s Handbook”. On page 53 is a section called “Employer’s Rights”. The section doesn’t list anything as promising as, say, the US Bill of Rights, of course, but it clearly lists two rights of which employers should be aware.

 

 

Right of the Employer to Attend Hearings

 

The first is the right of the employer to attend hearings. If that comes as a surprise, your author remembers times (two years ago!) when a judge tried to keep an employer out of a hearing by saying it had no right to attend since the employer was not a party in interest. (That was double wrong. The employer is a party in interest and does have a right to be present.)

 

The judge was doing what others have done for years – limit the number of people in the room, especially one who might express dismay at the proceedings. The presence of the employer has a tendency to force everyone else to stick to the law, not Board “custom”.

 

Therefore, employers should attend, and it wouldn’t hurt to download page 53 of the handbook and bring several copies to the hearing. Don’t argue. Just distribute copies to the other attendees.

 

 

Right of the Employer to View The Documents At Board Hearing Points

 

The other significant right is the right of the employer to view the documents in claims against the employer on a computer screen at Board hearing points. Every file may now be seen at any hearing point. Just go to the nearest hearing point, even if it not the one where hearings are being held. Bring photo ID and proof that your company is the employer. (Type the request to review the file on company stationery.)

 

The first time you review an e-file the contents won’t make much sense (every new comp attorney knows that feeling). Be patient. A Board employee will assist you and answer questions.

 

 

You Want to View The Worker’s C-3 Form

 

What you really want to see is the worker’s C-3 form, which is completed in order to file a comp claim. Does this form contain anything that you dispute? After reviewing, discuss with your carrier.

 

 

Review The Decisions After Each Hearing

 

Also review the decisions after each hearing. You can get the Board to send you these automatically after each hearing if you send a request in writing. That would be a good idea since you might want to have the carrier appeal or challenge the findings.

 

 

Attending Hearings & Reviewing Documents Can Bring Claim Disasters To a Halt

 

Another “right” that is listed is the right to request a carrier to appeal or contest, but the carrier has the co-equal right to ignore your request, which is why your author did not list your requests as a right.

 

Attending hearings and reviewing documents may not seem to be game changers but in fact these acts can bring claims disasters to a halt. Claims are all about information and the employer won’t be hurt by gathering as much as possible.

 

 

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.

The Death of Workers’ Compensation?

On August 13, 2014, Miami-Dade County Circuit Judge Jorge Cueto issued a declaratory order finding the provision of the Florida workers’ compensation law providing employers with immunity from civil liability in work-related accidents to be unconstitutional. Employees in Miami-Dade County are now free to sue their employers any time they get hurt on the job.

 

 

Florida Judge Ruled Workers Compensation Law Unconstitutional
Circuit Judge Cueto (who was elected in 2008 and is currently running unopposed for reelection) reasoning for declaring the Florida worker’s compensation law unconstitutional, in his opinion, the workers’ compensation law was not generous enough to fully compensate all injured workers in all situations.

 
While the injured employee utilized a local south Florida attorney, the case had been pursued by two outside interest groups for injured employees, the Florida Worker’s Advocates (FWA) and the Workers’ Injury Law & Advocacy Group (WILG). The FWA is located in Tallahassee, FL over 450 miles from Miami. The WILG is located at 2020 Pennsylvania Avenue, Washington, DC (three blocks from the White House). The FWA’s website states they are “an association of attorneys dedicated to protecting the rights of injured workers in Florida”.

 
Case Involved Worker Who Tripped Over Boxes Left On The Floor
The FWA and WILG picked an extreme case to test the workers’ compensation statute, in a very liberal jurisdiction. The case before Judge Cueto involved Elsa Padgett, a Miami-Dade County government worker who sustained injuries on January 27, 2012 when she tripped over boxes a co-worker had left on the floor. Ms. Padgett, who was already at retirement age, fell on her hip, but sustained a more serious injury to her shoulder. Ms. Padgett had shoulder replacement surgery, but remained in pain and was eventually ‘forced to retire’.

 

Judge Cueto stated the Florida Workers’ Compensation Act no longer provides adequate benefits to injured workers, and therefore is unconstitutional. Prior to Judge Cueto’s ruling the Florida Workers’ Compensation Act required injured employees to seek benefits under the workers’ compensation system. Per the ruling, the exclusive remedy portion of the workers’ compensation act “is no longer an adequate exclusive replacement remedy in place of common law tort”. The Judge further stated “the benefits in the Act have been so decimated {by changes in the workers’ compensation statutes} “that it no longer providers a reasonable alternative” to civil court.
Per the Judge’s opinion, the current benefits provided to injured employees are inadequate and the law deprives the injured employees of any other option for seeking relief. Therefore, the Judge felt the Florida workers’ compensation law was unconstitutional as it violated the due process clause of the Constitution.

 
Florida Plaintiff Attorneys Licking Their Chops

 

The plaintiff attorneys in Florida are licking their chops. The idea of turning every workers’ compensation claim into a civil lawsuit has visions of yachts and private jets dancing in their heads. Even in cases where the sole cause of an employee’s injury is the employee’s own negligence, the plaintiff lawyers know they can basically coerce employers and insurers into paying civil damages to avoid monstrous legal fees in defending civil lawsuits.

 

For now, only the Florida Eleventh Circuit Court – Miami and Dade County – will consider the ruling as legal precedent. Further litigation is expected. The Judge’s Order in not yet a final order and a motion for rehearing could be pursued. If the Order does become final, an appeal to the Third District Court of Appeals is expected. The Third District Court of Appeals could rule on the question of the constitutionality of the workers’ compensation statute, or the Third District Court could take a pass, and send the appeal to the Florida Supreme Court.
If the Florida Supreme Court was to rule the workers’ compensation statute is unconstitutional, legal chaos will probably result, along with many employers facing impossible workers’ compensation premiums. Such a result would force many small employers out of business.

 
NCCI Has Suspended Rate Making In Florida Pending Final Decision

 

The National Council on Compensation Insurance, Inc. (NCCI) has suspended rate making in Florida per spokesperson Lori Lovgren. Per the NCCI spokesperson: “at this point we’re just holding and not pricing (Florida) because we need to see if it will be a final decision or not.”

 

 

 

Author Michael B. Stack, CPA, Principal, 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.

 

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

 

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, attorney, or qualified professional.

 

Managing Litigation Cost for Workers Compensation Cases

Litigation cost is a factor calculated into premium as an allocated expense. Each state retains a record of all allocated cost expenses. Through the various state formulas, all allocated expenses become a part of the experience modification code. The experience modification code sets the stage for premium calculation.

 

 

Fee Determination
Plaintiff attorney fees are generally capped as a percentage of the employee’s benefits awarded in contested claims. They also become a part of the final ruling by the judge or mediator. When paid they are paid as part of the indemnity benefit. Since indemnity benefits are already part of the experience modification process there is no separate impact as an allocated expense.

 

Defense costs are based on billable hours at the attorney’s hourly fee rate. Defense attorney fees are payable regardless of a win or a loss of the case. The defense attorney bills are paid on the file in separate direct payment. Legal reserves are required to cover the payments.

 

Billable time includes: telephone calls, legal research, investigative steps, reporting, deposition time, trial time, and trial preparation, witness briefing, consultation time with fellow counsel and or witnesses, as well as negotiating time with plaintiff counsel.
In addition to the lawyer’s time fee, a defense legal bill may include clerical time charges, photocopying fees, postage, subpoena service cost, investigative cost, messenger service, witness fees, paralegal service time, travel time and cost. Some bills may even go so far as to charge for filing time and paper supplies.

 

 

 

Retaining Defense Counsel
All too often there can be a scarcity of local defense counsel. Fewer legal firms are taking defense work in rural areas or smaller towns. This limits legal counsel choices. All local claim units may be using the same attorneys. Fee rates and costs may become non-negotiable, and quality and quantity of defense work may be weak. Worst of all, the judges and mediators might give little credence to their defensive presentations. Larger communities might have more defense counsel choices, but all too often there is still a tendency to rely on the same legal firms.

 

Contacting the local legal bar association is one step to locate new attorneys. The association can advise of the current practicing and newly licensed counsel. They will also advise field of practice.

 

Attending a workers compensation court hearing and observing the defense counsel is a second way to search for new legal counsel. Probably the most used method, however, is to obtain a recommendation from professional associates or employers.

 

Before fully engaging any attorney, obtain their resume and request references. After reviewing the resume and contacting the references arrange for a personal interview. Discuss fees, reporting requirements, and all other expectations desired from the attorney. Do not be afraid to offer fees lower than those being asked as many attorneys will adjust fees to obtain business.

 

When reaching an agreement with an attorney follow through with a written confirmation.

 

 

 

Effective Use of Attorneys
Since attorney fees and bills are charged by the hour, it is incumbent on the claim technician to limit those hours. The following list of ideas should help:

 

  1. Keep telephone calls to a minimum. Know what you are going to discuss before calling. During the call gather the necessary information and terminate the call as quickly as possible. Document the telephone call information in the claim file notes.
  2. Use e-mail as much as possible and limit them to necessary information. This automatically documents the claim file and reduces time to document a telephone call. Use formal letters and regular mail only as necessary.
  3. Limit the attorney’s need for additional investigations. This is accomplished by the claim technician obtaining all defense and claimant statements. The adjuster should supply all personnel records that may be needed, arrange and forward all information from independent medical examinations, as well as supplying claim file reports and investigation information.
  4. Require a legal cost estimate and follow up on this for necessary revisions. Use the estimates as a basis for legal reserving.
  5. Require the attorney to obtain permission to do any additional investigations, hire private investigators, and schedule depositions (if statements are in the file defense depositions should be minimal).
  6. Limit verbosity in reporting. Once the attorney has made initial assessment (which should include a full review of the loss facts) and given a plan of action, it will only be necessary to comment on current happenings. It is not necessary to have the attorney copy the claim file on interrogatories, depositions etc. These are seldom needed if the attorney is reporting on the findings and results. The cost of reproduction and mailing can be eliminated.
  7. Obtain all information the attorney may request as promptly as possible.
  8. Try to employ more than one attorney. Competition generates better results in litigation and disposition.
  9. Negotiate settlements and agreements as much as possible. Attorney negotiating should be limited to court house steps, pretrial conferences, arbitration, and trial.
  10. When the attorney does negotiate, set limits and authorities. Require a telephone request for additional limits and authorities. If possible, serve subpoenas for the attorney.
  11. Require regular and timely billing by counsel. Audit each bill line by line to ascertain accuracy. It should also conform to the written agreement. Charges should coincide with legal information in the claim file records. If any reductions are necessary, let the attorney know why. Pay the bill promptly to avoid late fees and charges. Check to ascertain that a paralegal fee is not accidentally submitted as the attorney’s fee.
  12. Due to inflation and other impacting factors fees may need to be increased. This should always be done by mutual agreement and direct negotiation.

 
Summary

 

Litigation costs impact premium as allocated expenses. Controlling litigation cost is vital and requires the proper choice and use of lawyers.

 

 

 

Author Michael B. Stack, CPA, Principal, 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.

 

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

 

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, attorney, or qualified professional.

 

 

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