Claims work involves a lot of give and take — especially true when negotiating claims to settlement, whether in litigation or not. Even experienced adjusters make common negotiating mistakes such as those outlined below.
1. Come prepared
Just like anything else with work, you must be prepared. Create a negotiation plan, listing your strengths and weaknesses, along with rebuttals to weak areas of your defense. Make sure the plan is up-to-date with current demands and defenses. If you get to a settlement meeting or mediation unprepared to settle the claim, you have wasted time. The point of mediation is to bring the parties together to resolve the claim — sooner rather than later. List potential obstacles and weak points of your case and think through IN ADVANCE how to overcome those obstacles.
2. Trying to win at all costs is a mistake
This is a common mistake in claims. Rarely do you get a file you can fight all the way to the finish. You can have great defenses and a good aggressive stance, but you may have to give up a little in some area to actually settle the claim. Remember the goal is to hedge the risk. If the goal is to settle to avoid future costs, you will have to pay something, whether it is wage loss or medical bills. Do not slam the door shut by refusing to negotiate. You may end up looking bad in the eyes of the mediator and opposing counsel. You can expect to run into these people again, so keep a good reputation and do not ignore the natural give-and-take of claim negotiation.
3. Be sure to frame properly options in negotiations
The use of certain words has a great impact on negotiations. For example, if you are arguing over wage loss, it is better to say: “If I give you $30,000 — that is $5,000 more than our current offer.” rather than saying, “I know you want $50,000 but $30,000 is the best I can offer at this time.” Giving certain offers a negative slant affects negotiations down the road and may lead plaintiff counsel to be less open to negotiate other aspects of the claim. Use the strengths of your case and the rationale behind your numbers in negotiation.
4. Avoid overconfidence
Do not let your confidence level on the claim cloud your judgment. Sometimes it is best to get another opinion on your file about the exposure level. Adjusters have files for a long time, and over the course of time, they have an idea of what a claim is worth. Every now and then, there may be a tendency to become a tad too aggressive on a file. In mediation, overly aggressive methods can blow up in one’s face. Get another opinion of what the claim is worth to make sure you are not missing anything and going into negotiations with a skewed idea.
5. Be able to think on your feet
Inexperienced adjusters may lack the ability to think quickly. Negotiating “live” in front of others often is a daunting experience. You must know the file in and out because claimant's counsel looks for any signs of weakness and seeks to exploit them. Avoid weaknesses by being prepared and able to talk your way through the offer. If you are caught in a weak point, you must be able to think fast and make sense. The good news is thinking on your feet comes with experience.
6. Do not create a false deadline
A skilled plaintiff attorney may call your bluff by ignoring it. If you say, “All I am offering is $20,000.” and on the day of mediation they call you for a last-chance effort to settle, and you suddenly offer $30,000, you lose credibility with that particular attorney. Plaintiff firms around the insurance world keep notes on both insurance companies and their adjusters. An adjuster with a reputation of taking a hard stance early on and then caving in as a litigation date draws near, has lost the case. Be honest, make your offer, be consistent, try not to bounce the numbers around, and stand your ground. In this way, you keep a good reputation for yourself and your employer.
7. An early resolution does not always mean you overpaid
When plaintiff counsel accepts a negotiated settlement, some adjusters feel they paid too much for the claim. This happens when the plaintiff takes the offer early in the negotiating process, as opposed to later after a few months of going back and forth. Litigation and negotiation is often hard work, but not always. The acceptance of an offer does not mean the other side was willing to take much less. Inexperienced negotiators often feel this way since they view mediations as a battlefield. However, just because the other side gives in earlier than expected does not mean the claim was overpaid. (WCxKit)
In conclusion, learning how to negotiate a file during litigation is a complicated job and one that comes with experience. Get other opinions from senior adjusters at your company and know the content of your file inside and out. The more prepared you are, the better you will present, and the better the outcome.
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 or 860-553-6604.
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.
Wal-Mart Stores Inc. came out on the losing side of its appeal of the majority of a $187.6 million verdict for Pennsylvania hourly workers who allege the world's largest retailer disallowed meal and rest breaks.The case was brought on behalf of some 187,000 present and former Wal-Mart Pennsylvania employees working from 1998 to 2006.They contended the Arkansas-based employer took part in improper practices to enhance productivity, increase profit, and trim expenses.
According to a report from the Economic Times, the three-judge panel of the Superior Court of Pennsylvania said there was sufficient evidence for Philadelphia jurors in 2006 to conclude that Wal-Mart's practices violated state wage and hour laws. It also claimed Wal-Mart's own internal review brought up violations related to "off-the-clock" work.(WcxKit)
The record reflects testimony and documentary evidence suggesting that because of pressure from the home office to reduce labor costs and the availability of significant bonuses for managers based on store profitability, Wal-Mart's scheduling program created chronic understaffing, leading to widespread rest-break violations according to the appeals court records.
It nonetheless instructed the trial court to recalculate a $45.6 million award of legal fees, claiming that court erred by "double-counting" some factors.
The case was brought by Michelle Braun and Dolores Hummel, who had respectively worked in Wal-Mart and Sam's Club stores in eastern Pennsylvania, and drew on evidence from some 46 million shifts according to court records.(WcxKit)
Citations: Braun et al v. Wal-Mart Stores Inc et al and Hummel et al v. Wal-Mart Stores Inc et al, Superior Court of Pennsylvania, No. A21033/09.
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 or 860-553-6604.
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.
Following the death of a resort mechanic who died while working on the attraction in March, Walt Disney World, Florida is keeping the roller coaster ride closed through the summer as federal investigators continue a safety review.
According to a number of media outlets, including The Associated Press and The Miami Herald, Disney recently extended the closure of Primeval Whirl, a spinning coaster in Disney’s Animal Kingdom that has been closed since January for maintenance, until at least September 14, 2011. The reopening of the ride, initially slated for April, already was postponed once, until early June 2011. (WCxKit)
The attraction, opened in April 2002, is a pair of wild mouse-style roller coasters operating side by side featuring spinning, four-person ride vehicles falling through a series of tight, flat turns.
The new date coincides with a six-month deadline facing the U.S. Occupational Safety and Health Administration (OSHA) to finalize its investigation into the passing of Russell Roscoe, a 52-year-old attractions mechanic hit by one of the attraction’s ride vehicles on March 13th. Roscoe suffered a massive head injury and died the following day.
Disney reported on June 7th some of the planned maintenance for Primeval Whirl was moved back to accommodate the accident investigation. The resort stated the new reopening date is not related to OSHA’s timeline. Resort officials would not comment on what changes they are making to the 9-year-old ride, or whether they are completing any safety adjustments.
Note: If one searches through legal data bases, there are many injuries on amusement park and water park rides. My first product liability case, in fact, was an amusement ride — a water park ride in New Hampshire — where coincidentally a high school friend was vacationing in New Hampshire with his family when he went down the waterslide head first — a position which was allowed on the slide despite the fact there had been several previous injuries which all occurred when users rode the waterslide in a head first position. In these injuries, there may be lawsuits as well as claims that are discoverable.
Author Rebecca Shafer, J.D., President, Amaxx Risks Solutions, Inc. has worked successfully for 25 years with many industries to reduce Workers Compensation costs and implement litigation management systems. Her clients have included: 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.
One of the scariest parts of expanding a business into a new state for the self-insured employer is learning the workers compensation laws and state mandates in the way of forms, filings, hearings, etc. While an employer can hire a third party administrator (TPA) to handle claims, or a law firm to guide you through all the steps of workers comp claims handling, it is in your best interest to learn the basics of the workers comp system in the new state quickly. Or, get a good resource that has such information. Ask your TPA what resources they use. Even though they have professional resources, similar resources can be very helpful for the self-insured company.
Self-insured employers have two choices: spend weeks/months learning the new workers comp system or, to borrow a video game phrase, get “cheat sheets” to speed up the learning process. (WCxKit)
Many law firms specializing in insurance defense work sometimes offer “cheat sheets” to new adjusters and potential new clients as a way of building business. Instead of the employer spending “forever” learning the basics of the new state’s workers comp law, the cheat sheets give a synopsis of important information the self-insured employer needs to know.
If you want a jump of learning this information and don't want to rely on free cheat sheets, excellent information – in easy to use tables – is available from
www.workcompresearch.com.
Common cheat sheets/reference tools include:
1. A list or a table of state forms and when each is to be filed.
2. Explanations of state forms and rules associated with each form.
3. Table of temporary total indemnity benefits by calendar or fiscal year.
4. Table of temporary partial indemnity benefits by calendar or fiscal year.
5. Table of permanent partial disability benefits.
6. Table of scheduled injuries.
7. Charts for combining two or more
impairment ratings.
8. Death benefit tables.
9. Table on statutes of limitations on filing claim, appealing claims, etc
10. Calculation of indemnity benefit guidelines.
11. Checklist of defenses to claims.
12. Charts or tables on how the judicial system works.
13. Claim settlement guidelines.
14. Guidelines on the selection of medical providers.
15. Guidelines on posting a panel of physicians
16. Forms for:
· New employees/transferred employees to sign acknowledging the selection of a physician.
· Injured employees to acknowledge the attending physician requirement(s).
· Requesting a new physician.
· Employee to decline medical treatment.
17. Samples of required state notices for posting.
18. Recent changes in the state law.
In addition to the cheat sheets, get a glossary of workers compensation jargon and terms as used in a particular state. This type of glossary also assists you in understanding the abbreviations often used within the state, for example – DOAH (Florida Division of Administrative Hearings), BRC – Benefits Review Conference, or IW – injured worker. (WCxKit)
Summary
A new employer in a state can spend time learning the workers comp system, contact some of the law firms specializing in insurance defense work or consider
www.WorkCompResearch.com as eventually learning the system in the new state definitely has it benefits, but
quickly learning the basics summarized by experts speeds up the learning curve and assists in understanding the workers comp system.
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.
As long as there are workers compensation claims and ways for attorneys to make money from workers comp claims, attorneys will be involved in the processing of some of these claims. There will always be employees enticed by television commercials with the attorney holding fistfuls of money and saying, “Call me. I will make you rich.” or words to that effect.
Employers cannot do much about the greed factor. However, they can do quite a lot to keep otherwise honest employees from hiring an attorney. When employees hire attorneys, the cost of workers compensation goes up as the attorneys seek to maximize both the employees' and their own financial well being. (WCxKit)
There are three primary reasons employees hire an attorney in the workers comp claim process. The employee (1) does not know what to expect; (2) is fearful for themselves and their families; (3) a controversy develops between the employee and the employer, or between the employee and the claims adjuster. Of course when the employee's attorney files a petition with the workers compensation commission, they do not list “greed” as the reason; rather, they attempt to cloak the greed by creating controversy.
To significantly reduce the number of employees hiring an attorney avoid making these five mistakes driving an employee into the arms of a waiting workers comp attorney.
1. Failing to Provide Immediate Medical Care
Being lazy about providing medical care to the injured employee is one of the biggest mistakes an employer makes when an employee is hurt. When an unknowing or untrained supervisor does not want to bother with the workers comp claim and tells the employee to “give it a few days,” it is almost a guarantee the employee is going to hire an attorney.
Think! – The employee is in pain, medical care is not being provided, the employee's attitude quickly becomes “they don't care about me” which quickly switches to “I don't care about them either.” The only remaining question for the employee is whether to go to a doctor on their own or not. To answer that question they turn to the Internet/TV attorney or the yellow pages attorney. Keep in mind these cases are taken on contingency so the injured worker does not have to come up with a retainer for attorney fees. If the employee “wins” the case, the employer pays the attorney.
The solution – Everyone in the company, including employees, should know immediate medical care is to be provided on all work-related injuries. Every supervisor and manager must ensure medical care is provided immediately upon learning an injury occurred. Of course, if your company used nurse triage, this would go a long way toward allevaiting this issue because employees would call the triage nurse immediately.
2. Late Reporting
It is always amazing to workers comp adjusters, defense attorneys, and the Board of Workers Compensation when they see an injury occurred a week ago, a month ago or even longer before it is first reported.
Sure, the time and paper work of reporting a workers comp claim is a hassle, and the employer's person(s) in charge of reporting workers comp claims has more important things to do (like office gossip time, personal e-mails, or even actual work responsibilities). However, as the employee sits at home not hearing from the workers comp adjuster, medical triage or the employer, fear sets in and questions arise about how bills are going to be paid and the family taken care of. When no one explains how much the indemnity check will be, or consults about medical care, (since no one reported the claim to the claims office) the employee starts to think about hiring an attorney to enforce “their rights.”
The solution – The person(s) in charge of reporting claims to the claims office must consider the immediate reporting of the claim as THE number one priority over all other job responsibilities.
3. Ignoring the Employee
After the supervisor obtains immediate medical care for the employee and the claim is reported on the same day to the claims office, the employer must continue to be involved in the claim. If the employer "forgets" the employee works for them after the claim is reported to the claims office, the employee will develop the attitude that the employer no longer cares about them, and then seeks out an attorney. The attorney is then the one who patiently listens to the employee’s tale of woe and assures them “everything will be okay.”
The solution – Instead of paying an attorney to reassure the employee, the employer should do so. Whether it is the claims coordinator, the employee's manager, or someone else within the company, a person representing the employer must maintain regular contact with the employee following the initial medical care and at regular intervals until the employee is back at work full duty. That means regular phone calls, meetings and get-well cards. Make a First Day Phone Call the evening after the injury to make sure all bases are covered. Consider using "Early Dissatisfaction Surveys", a service Jennifer Christian, M.D. provides, to find out how your employees are treated when they are injured.
4. Under-reporting the Compensation
Regardless of how state laws require temporary total disability compensation to be calculated (13, 26 or 52 weeks) the average weekly wage includes all compensation, often more than the amount of salary or wages paid each week. If the employee normally receives commissions and bonuses, or is provided housing, meals, or paid health care benefits, include all types of compensation in your report of income to the claims office. When the employee sees the indemnity check does not include the bonus, commissions or health insurance coverage, these omissions can become a reason to seek out an attorney to obtain all due benefits.
The solution – know your state law and what should be included in the calculation of indemnity benefits. If some type of benefit you have been paying to or for the employee is not included in the compensation reported to the insurance company, then it needs to be discussed with the employee so the employee knows why they are not receiving that part of the compensation.
5. Not Complying with the Medical Restrictions on Modified Duty
Too many employers willingly accept the employee back at work on modified duty status from the treating doctor, and put the employee right back to work doing the previous job. If the doctor states the employee cannot lift more than 10 pounds, and you assign the same job duties where 40 pound lifting was routine, expect problems. First, you are going to re-injure the employee and extend both the medical treatment and the time off work, plus you are going to create that “they don't care about me” attitude with the employee.
The solution – Review the modified duty restrictions imposed by the treating doctor and know exactly what the doctor expects in the way of modified duty. During the first minutes the employee is back at work on modified duty, review what the doctor states can and cannot be done, keeping modified duty in compliance with the doctor's restrictions. (WCxKit)
By treating the employee properly, you can expect to lose fewer employees to attorney representation and the associated cost of attorney involvement. Plus, you will have a happier and more productive employee as the employee understands you care.
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.
Some litigation can drag on forever. As time goes by, the expense of litigation keeps piling up and between attorney fees, expert fees, lost worker wages, and medical expenses it can seem like the case is going nowhere. Below are some ways to speed up the process and get those cases settled and off your loss run.
1. Report New Litigation Promptly to Your Carrier
Sometimes the first notice of an injury is a Notice For Hearing. These may come from past employees or current ones. Since carriers usually have a dedicated adjuster just for litigation the sooner the new litigation notice arrives at the carrier’s office the better. Be sure to send the carrier all documentation and follow it up with a phone call or email to make sure the proper person received it. (open-ended) (WCxKit)
2. Get the Complete Personnel File Over to Your Carrier – fast.
If the first notice of injury is a hearing notice, both the carrier and you share the same information — the hearing notice. The adjuster calls the employer first as part of the investigation, so be prepared having the claimant’s personnel file pulled, copied, and ready for mailing. Include anything else pertinent to the claim, such as safety records, job applications, any disciplinary write-ups, time sheets, medical records or invoices, and so on that may be helpful to the investigation. Also send the claimant’s job description and any witness or coworker statements just to cover all bases. Work on your defense before the first hearing.
3. Once Counsel is Assigned, Give Them a Call
The counsel on the case may have different questions than the adjuster, and you should make contact to make sure you know what is needed and to keep the attorney up to date. Counsel may know nothing about your company and has no idea what your jobs include. It is helpful to educate the attorney about your company and what the medical/wage exposure could be.
4. Don’t Abandon the Claim for Counsel to Handle
Be proactive. Sometimes when a case is in litigation little follow-up is done until after a hearing date and then only to find out the next hearing date. Leave yourself notes to follow up with the attorney on a regular basis to be sure you know what is currently going on and what is coming in the near future. That way you are kept up to date, and can address any concerns raised on a timely basis.
Note: if you do not have a solid litigation management system to manage every aspect of your lawsuits (whatever type that might be) you should consider putting one in place so that YOU, the employer, manages them.
Sometimes, depending on the size of the case, adjusters overlook the seriousness of a claim. As mentioned before, carriers employ litigation adjusters who tend to focus on the larger, more exposure-heavy claims. That shouldn’t mean your claim is not important and shouldn’t be handled proactively. Being involved on all ends pushes your claim to resolution.
5. Make Yourself Available to Testify as a Witness
Nobody knows the ins and outs of the job duties as you, the employer, do. So, get both counsel and carrier good detailed job descriptions. In medical reports, the claimant may tell the doctor one thing, and the truth may be totally opposite. It is not unusual for claimants to inflate their job duties which lead them to injury and your testimony can be helpful is putting the tasks they did at their job back into reality. This helps the defense of your claim and shows you, as the employer, are involved in all aspects of the claim.
6. Ask Your Current Employees What They Have Heard About the Lawsuit
In smaller communities it is common for everyone to know a lot about everyone else. Most times depending your relationship with the claimant and the claimant relationship with other workers, information may can be hard to gather. But chances are, someone knows something so its worth checking out.
7. Look at Other Information You Know About the Claimant that Could be Helpful
Other types on information can include the type of house the claimant has; hobbies; type of car; what the spouse or relatives do for employment; bars/restaurants frequented, etc. Surveillance may be initiated to get a gauge on the claimant’s activity level. The more information provided the better the result of litigation. (open-ended)
8. Be Open to Settlement Early on in the Case
No matter how hard you defend a claim; sometimes the only option is to settle the case. Carriers take fewer cases to trial because of the risk of losing and incurring the full costs of medical and wage exposure. At times it is best to come up with a global settlement. While only pertaining to certain cases, be open to early settlement. Early settlement decreases defense costs, and speeds up the process. Pick and choose your battles. If the case doesn’t entail a lot of complications and is fairly straightforward, the sooner you can get rid of it the better. Who wants to spend $5,000 defending a case worth $2,500? (WCxKit)
Note: Some companies make a practice of settling in only the most extraordinary and clear-cut circumstances because they fear it sets a bad precedent for future claims.
Summary
Litigation costs for Insurance claims can be quite daunting, but if you handle them promptly and gather as much information as you can early on, the process can be speeded up generally end up in resolution earlier rather than just send the case on to counsel and leave it up to the attorney to take care of it. Be sure to stay involved in all aspects, and make yourself available in whatever facet needed to resolve the case and get it off the books.
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 or 860-553-6604.
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
Statistics prove litigated workers compensation claims cost the most. In this article we will use the broad definition of litigation to include any claim where the employee has hired an attorney, regardless of how the claim is settled, whether by agreement, workers compensation board decision, or in the courts. Here are some suggestions on how the employer and/or the insurer can have a positive influence on the overall cost of the claim.
The First Steps in Controlling Litigation:
Any time an injured employee hires an attorney, you should immediately begin to prepare for the possibility of a long, drawn-out process. Some of the steps you can take include:
1. Employ the defense attorney early on as the employee's attorney will start maneuvering the claim in the most favorable direction for the employee if they are allowed to do so. Assemble your defense BEFORE the first hearing. Yes, do it early!
2. Assist the defense attorney in preparing to defend the claim by providing the defense attorney with the first report of injury, the wage records of the employee, the personnel records of the employee, any witness statements you obtained immediately after the accident, and any other information that you have that relates to the employee or the injury.
3. Get over your reluctance to offer a modified duty job to the employee. By putting the employee back to work, you diminish the plaintiff attorney's arguments that the employee is unable to work, will never be able to work, etc. Also, if handled correctly, a modified duty job offer will make the employee feel more appreciated and less likely to hold out for a “big settlement."
4. In
states where an employer can request multiple independent medical examinations (IME), an IME should be scheduled immediately. Have an M.D. prepare the cover letter to the IME doctor. Yes, it's going to cost money, but in the end, it will save money.
In states where the employee selects the medical provider and you only get one IME, an independent medical examination should be scheduled immediately after the employee has reached their maximum medical improvement. I repeat, have your MD prepare the cover letter. This will provide medical documentation that the employee has recovered from their injury and to limit the
exaggeration of the injury you can expect from the plaintiff attorney.
5. If you have any doubt about the validity of the injuries claimed by the employee, consider surveillance to verify or disprove the validity of the injuries. Have the employer review the surveillance.
6. If you do not already have medical case management on the claim, add it if you can. Consider peer-to-peer medical review — this is a doctor who reviews the medical portion of the file.
7. Another way to reduce future disability value placed on the claim is to hire a vocational rehabilitation specialist to assist the injured employee in returning to work. physical therapy networks may have rehab specialists. Consider using one.
8. Do not let your feelings be hurt; the plaintiff attorney is in for the money, and the employee is thinking about his own welfare, not what is in the best interest of the employer or the insurer.
As the Claim Progresses:
The employer's involvement in claim defense continues after the initial flurry of activity at the beginning of the litigation process.
6 additional steps you should take:
1. After the defense counsel has obtained all the initial information, but before the discovery process begins, review with defense counsel their initial evaluation of the claim. Is the claim one that should be denied and fought all the way, or is the claim one that should be settled? Know what you defense attorney thinks before a lot of money is spent on discovery. Get ALL prior medicals early, before the first hearing if possible. Subpoena them if necessary. Yes, you can do that in most states.
2. If the defense counsel thinks you are going to lose based on his or her initial evaluation, do not be afraid to go ahead and settle the claim before the legal bills escalate.
3. If the defense attorney recommends the claim be defended, or recommends discovery to clarify the defense of the claim, have him to proceed timely.
4. Do not delay the discovery process. This will only allow the employee to stay off work longer drawing indemnity payments and going to additional medical visits (even if the medical visits are not needed, the plaintiff attorney will encourage the employee to continue to treat to push up the settlement value of the claim).
5. Keep in touch with defense counsel as the status of the claim dictates. More is better than less. If she/he isn't responsive or aggressive, get a new attorney.
6. Always promptly cooperate with your lawyer. It will move the claim along faster.
When the Claim is Concluded:
Regardless of whether you settle the claim or the claim is adjudicated by the work comp board or the courts, there are certain steps you need to take including:
1. Pay the claim quickly. Incurring penalties and attorney fees on top of the claim value does not do anyone (except the lawyers) any good.
2. Only consider an appeal if the defense counsel thinks you have a viable chance at winning the appeal. Appealing the board decision or the court decision simply because you do not like it is an expense you do not need.
3. If the injured employee does return to work, either with or without work restriction accommodations, treat them the same as all the other employees and like nothing ever happened. If you treat the returned and litigated employee like they have the Black Plague, it won't be long before they understand they are not welcome. The employee attorney will be filing another petition for additional benefits claiming the employee is unable to work or the injury has been aggravated with the employee going back off work drawing additional indemnity benefits and incurring additional medical expense. (WCxKit)
Note: I usually fight long and hard before I settle if I have any inkling the claim is exaggerated. Settling quickly sends the wrong message. I always VERIFY the extent of the disability with surveillance before I settle. Seeing is believing.
By planning your involvement in the defense of the workers compensation claim, you can reduce the overall defense cost and possibly the settlement value of the claim. The employer should always take part in the defense, as the cost of the workers compensation litigation will be your cost eventually through your work comp insurance premium. Act now to control the long-term cost.
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
The value of searching for undisclosed prior injuries in many classes of workers compensation claims was shown in a recent decision, “Poli v. Taconic Correctional Facility” 4/21/11.
A federal report in the 1980s stated roughly one-third of all workers have a prior permanent impairment, the group most likely to pursue a workers compensation claim for permanent partial disability (PPD), thus making concealed, or at least unreported, priors injuries more common than we realize. (WCxKit)
Searches were done in New York in the past for such conditions in support of 15-8 reimbursements. Since WCL Sect 114-a was not yet enacted little was done about concealed conditions, because when they were uncovered, they led to 15-8 relief.
With the closing of Sect 15-8(d) many claim units abandoned regular searches for prior injuries. However, more is gained from the “Poli” decision than realized than from the old Second Injury Fund relief. In “Poli” all future loss wage payments are forfeited when the prior injury is discovered.
Most concealed priors are discovered by accident, not a systematic search. A remark by a supervisor about prior lost time or a co-worker mentioning prior complaints may lead to further inquiry. Unfortunately most claims miss prior injuries.
Should an investigation be done on every claim? No. However, it’s a good idea to investigate claims having one or more of the following characteristics:
1. Claims for continuing back disability with lost time exceeding four months.
2. Claims which are unwitnessed.
3. Claims by workers over age 45.
4. Claims by workers with a history of several employers in the past 10 years.
5. Claims for heart attacks or COPD.
A search for a good prior medical history need not rely on a worker’s statement. Obtaining charges on a group medical plan, even without the actual medical records, quickly discloses significant or chronic conditions the treating doctor ought to mention on the compensation claim form.
A search need not lead to disqualification of future benefits in order to be successful. Information is usually discovered which won’t meet all the criteria for violation of New York WCL Sect. 114-a, but which will be useful for apportionment or mutually agreed settlement at a substantially reduced rate. Lawyers are mindful that relying entirely on a client’s statements can lead to “can-of-worms” trials and appeals. Rather than changing the outcome of a trial, discovering prior treatment was more extensive than the attorney was led to believe, only leads to more amenable reduced settlements.
A carrier is not likely to receive requests for investigations from smaller employers. However, larger employers, especially those in construction, transportation and other heavy industries, are a logical partners for a cost-reduction effort. (WCxKit)
In addition, employers receive many other benefits from assisting or initiating prior injury searches. Inevitably, these searches benefit many worthy claims, leading to fewer unnecessary hearings, also resulting in cost-containment.
Author Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. 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. Mr. Ronca has 21 years experience in searching and retrieving medical records and many other types of documents for defense of workers compensation claims. Contact Attorney Ronca at 631-722-2100 or medsearch7@optonline.net. Ted's new program (which he's been doing for many years) OSHA/C-2 Avoiding Disaster by Early Defense, is excellent coaching for NY employers with work comp problems).
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
A Florida lawsuit alleges that lack of machine guarding left an employee disfigured.
The Orlando Sentinel reports, Edgardo Toucet Echevarria, 44, filed a lawsuit against Future Foam Carpet Cushion in Orange County, FL, following an incident on Jan. 13, 2010. (WCxKit)
Echevarria, a contract worker at Future Foam employed by Spartan Staffing, was asked by supervisors to remove a foam core from a “peeler machine” that has a steel blade used to cut blocks of carpeting foam, according to the lawsuit.
The suit alleges he wasn’t trained in operating the machine, and in the course of removing the foam, the machine activated.
OSHA cited Future Foam for 10 serious violations, including two machine guarding violations, and proposed $42,500 in fines. Future Foam is contesting the fines.
The lawsuit claims employees had improperly removed a guard from the machine.
“The surgical sharp steel blade sliced through [his] pelvis … while virtually cutting his body in half,” the lawsuit claims. (WCxKit)
Echevarria is seeking punitive damages and more than $15,000 for disfigurement, loss of capacity for enjoyment of life, medical expenses, loss of earnings and loss of earning capacity.
Subrogation: The employer (insurance company for the employer) will not doubt eventually file an action to recover damages against the machine manufacturer. Any recover may be offset against contributing fault of the employer for lack of supervison and lack of adequate training. Employers should address this subject in their account instructions.
Note on Product Liability: There are many resources that help employers stop this type of injury. National Safety Council and University of Wisconsin offer courses on machine guarding. Please, ask you insurance broker for assistance. The general rule is to 1- design hazards out of the equipment, 2- recall any equipment that is defective, and 3- if those two options are not possible then warn the users of the hazards. Simply warning users of the hazards is not sufficient and is not a defense when the machine is improperly designed and contains inherent hazards. Machinery should be "fail safe" meaning when guards are removed the equipment will shut down. Employee removal of guards is generally not a valid employer defense in a product liability action because the machine design should prevent operation if guarding is removed.
Design hazards out of equipement! Litigation Managers can take a proactive approach to reducing injuries by educating divisions of your company about product safety and design.
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 or 860-553-6604.
©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.
When you review your broker's or insurer's website, there is one subject in workers compensation that most brokers and insurers never mention – leakage.
Leakage in an insurance claim is any payment that is more than the payment should be. Leakage is defined as the difference between what the claims office spent and what they should have spent. Leakage is also been defined as lost opportunities to save money.
As workers compensation premiums are directly tied to the frequency and severity of employers' claims, you will never hear the workers comp insurer say, “We did a poor job controlling the cost of your claims.” Their leakage becomes the employer's expense through higher insurance premiums. (WcxKit)
5 main causes of workers compensation claims office leakage:
1. Inadequate claims handling.
2. Judgmental mistakes.
3. Poor claim processes.
4. Over payments.
5. Bad customer service.
While leakage can be caused from any one of these areas, it is often a combination of them that results in leakage.
There are about as many forms of leakage in workers compensation as there are workers comp subjects to be discussed.
10 examples of leakage in workers compensation:
1. Payment of medical bills without adjustment to the fee schedule.
2. The failure to properly investigate compensability and payment of claims that are not covered.
3. The failure to pursue subrogation.
4. The failure to utilize the early return-to-work program of the employer.
5. The failure to properly manage utilization review opportunities.
6. The failure to control the selection of the medical provider in those states where the employer controls the medical provider selection.
7. The selection of inadequate defense counsel.
8. The failure to pay medical benefits or indemnity benefits timely resulting in fines and/or penalties.
9. The lack of automation and/or technology in the process where it could be utilized.
10. The additional management and administration time due to any mistake in the claims handling.
The list could go on and on. Any failure to control the insurance claim can result in leakage.
Some consultants and
insurance brokers who attempt to identify leakage by the use of computer outcome modeling or algorithms. These provide a detailed report reflecting payment areas in which the employer's claim cost exceed the average for their industry or the employer's prior lost history. When the employer has thousands of claims, automated methods can identify some possible areas where there is leakage, but will miss many others. When the employer does not have thousands of claims, the cost averages can be influenced by a few outlier claims making the identification of leakage by computer averages less reliable.
An example of how computers and algorithms fail to identify leakage: A computer average for indemnity paid will not show the failure to contest small claims that should been investigated and denied. Because it is easier for the adjusters to pay numerous small claims rather than contesting them, the behavior looks like superior performance on a computer average, though, in fact, every small claim that was paid but should not have been, is leakage.
A better way to control leakage is the utilization of these 6 time-proven methods:
1. Having an established set of best practices for workers compensation claims.
2. Proper education and training of the workers comp adjuster including state statutes, customer service, and claims-handling practices.
3. Excellent education and training of all support staff.
4. Linking salaries and pay raises to compliance with best practices.
5. Having an established work-flow process. WcxKit
6. Incorporating automation and technology into the claims process.
An integrated approach incorporating all of the methods will eliminate most leakage. WcxKit
If you feel like there is leakage in handling your workers compensation claims, there probably is. Identification of various forms of leakage on your claims can be done through a claims audit. An experienced quality assurance auditor will be able to point out where leakage has already occurred
and identify situations where mistakes have already been made, but can be corrected before additional money is paid. If you would like to discuss a leakage audit of your insurance claims, please contact us.
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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